
    James McCONICO, Jr. v. Marvin L. STEWART, et al.
    88-1353.
    Supreme Court of Alabama.
    April 27, 1990.
    James McConico, Jr., pro se.
    Marvin L. Stewart, pro se.
   ADAMS, Justice.

Plaintiff James McConico sued the defendants concerning matters arising out of two cases, McConico v. Avenue of Homes, CV-86-853 and 87-103 (Jefferson County Circuit Court). His present case raises the issue of whether the affirmative defenses of res judicata, waiver, and immunity can be raised for the first time on a motion for summary judgment without an amended answer having been offered to set forth the defense. We answered this question in the negative in Bechtel v. Crown Cent. Petroleum Corp., 451 So.2d 793 (Ala.1984), wherein there was nothing in the record to indicate that the defendant’s answer had been amended to reflect the affirmative defense that was raised for the first time on a motion for summary judgment. We reverse the judgment in this case and remand the case on that authority, noting that the appellee has neglected, for whatever reason, to file a brief with this Court.

The following paragraph from Bechtel is also applicable in this case:

“Because of the posture of the case, we do not find it appropriate at this time to discuss the evidentiary question. Likewise, we do not intend by our decision to intimate an opinion as to whether the trial judge should, in the exercise of his discretion, allow the defendant’s pleading to be amended following remand.”

Bechtel, at 796.

REVERSED AND REMANDED.

HORNSBY, C.J., and MADDOX, ALMON and STEAGALL, JJ., concur.  