Appellant-plaintiff issued a policy of insurance covering appelleedefendants’ home. After a fire, appellees submitted claims to recover under the policy. Appellant’s investigator determined that the fire had been intentionally set and that an accelerant had been used. Thereafter, appellant initiated the instant action by filing a petition seeking a declaratory judgment that, under the arson clause in its policy, it owed no contractual duty to pay appellees’ claims. Appellees answered and counterclaimed, seeking to recover under the policy and, in addition, bad faith penalties and attorney’s fees. Subsequently, appellees moved for summary judgment on the issue of appellant’s liability. The trial court granted summary judgment in favor of appellees as to appellant’s liability under the policy but denied summary judgment as to appellant’s liability for bad faith penalties and attorney’s fees. Appellant appeals from this partial grant of summary judgment in favor of appellees.
1. There is authority for the proposition that a defendant can obtain affirmative relief by way of counterclaim in an otherwise viable declaratory judgment action. Myers v. United Svcs. Auto. Assn., 130 Ga. App. 357 (203 SE2d 304) (1973). However, no authority has been cited by appellees for the proposition that a defendant can obtain affirmative relief by way of counterclaim in an otherwise non-viable de*191claratory judgment action. Compare Holcomb v. Ellis, 259 Ga. 625 (2) (385 SE2d 670) (1989), wherein the plaintiff amended his complaint for declaratory relief so as to add a count for affirmative relief. It is clear that a viable declaratory judgment action was not initiated by appellant’s petition (see State Farm Fire & Cas. Co. v. Fuller, 150 Ga. App. 387 (258 SE2d 13) (1979)), and that appellant’s petition did not serve to invoke the trial court’s initial subject matter jurisdiction over resolution of the contractual dispute. See Kaylor v. Kaylor, 236 Ga. 777 (225 SE2d 320) (1976); Logan Paving Co. v. Peoples Bank & Trust, 196 Ga. App. 42 (395 SE2d 287) (1990); Royal Lepage &c. of Atlanta v. Spalding Partners, 192 Ga. App. 284 (1) (384 SE2d 424) (1989); Oxford Fin. Co. v. Dennis, 185 Ga. App. 177 (363 SE2d 614) (1987). Thus, there is some doubt as to whether the trial court had jurisdiction to enter any order in this case. For purposes of this appeal, however, we will assume without deciding that the trial court did have jurisdiction to address the merits of appellees’ motion for summary judgment on their counterclaim notwithstanding the lack of any subject matter jurisdiction whatsoever over appellant’s non-viable claim for declaratory relief.
2. Summary judgment would be proper only if the evidence, when construed most strongly against appellees and most favorably for appellant, showed that no genuine issue of material fact remained as to appellant’s arson defense and that appellees were entitléd to judgment as a matter of law. “ ‘(I)t has been held that to establish a prima facie case of incendiarism for the purpose of denying coverage under a fire policy it is sufficient to show: arson by someone; motive by the suspect; and unexplained surrounding circumstantial evidence implicating the suspect.’ [Cit.]” Southern Trust Ins. Co. v. Braner, 169 Ga. App. 567, 568 (1) (314 SE2d 241) (1984). In the instant case, there is evidence as to the first two of these three elements and, in granting appellees’ motion for summary judgment, the trial court apparently concluded that appellees met their burden by showing that no genuine issue of material fact remains as to the third.
It is clear, however, that evidence of opportunity on the part of an insured who has a motive to commit an arson can satisfy the third element and will, if believed by a jury, authorize a finding in favor of the insurer. In Fortson v. Cotton States Mut. Ins. Co., 168 Ga. App. 155, 158 (1) (308 SE2d 382) (1983), it was explicitly recognized that the insurer’s arson defense was “not frivolous or unfounded” because “[a]n insurance company can prevail in an arson defense based solely on circumstantial evidence if it shows that the fire was of incendiary origin and that the [insured] had both the opportunity and motive to have the fire set. [Cits.]” (Emphasis supplied.) This has also been implicitly recognized in other cases. See generally Pennsylvania Millers Mut. Ins. Co. v. Baker, 180 Ga. App. 504 (1) (349 SE2d 527) (1986); *192Smith v. Federated Mut. &c. Ins. Co., 124 Ga. App. 693 (185 SE2d 588) (1971). The holdings in these cases are in no way inconsistent with that of Southern Trust Ins. Co. v. Braner, supra. To the contrary, they are entirely consistent applications of the Braner tripartite test, with evidence of the insured’s opportunity to commit the arson satisfying the third element thereof.
Insofar as Mrs. Talbot is concerned, she was actually present when the fire started and, thus, she clearly had the opportunity to have set it. See Pennsylvania Millers Mut. Ins. Co. v. Baker, supra at 505 (1), wherein Braner was distinguished on the basis of the existence of “circumstantial evidence from which it may be inferred that the insured was present at the house for several minutes s'" the fire started. Such evidence creates more than the ‘shadowy semblance’ of a fact issue. . . . [Cits.]” (Emphasis supplied.) See also Smith v. Federated Mut. &c. Ins. Co., supra at 693, wherein there was evidence “that placed [the insured] at the scene in the early hours of the morning and shortly before the fire broke out.” (Emphasis supplied.) It is true that, “[wjithout more, the fact that [the insured] had exclusive access to the property, as many if not most property owners do, raises no inference of incendiarism on his part.” (Emphasis supplied.) Southern Trust Ins. Co. v. Braner, supra at 569. However, the evidence of Mrs. Talbot’s actual presence at the scene constitutes a showing of “more” than her “exclusive access to the property.” Compare Southern Trust Ins. Co. v. Braner, supra, wherein there was no evidence of the insured’s presence when a fire occurred at his second home which had been left locked by him the day before the fire.
Mrs. Talbot was not alone in the home when the fire started and she was, therefore, not the only occupant who had an opportunity to have set it. However, the insured in Pennsylvania Millers Mut. Ins. Co. v. Baker, supra, was likewise not the sole occupant of the house when the fire started and here, as there, Mrs. Talbot is the only occupant who did have a motive to commit the arson. The inculpatory circumstantial evidence certainly does not demand a finding that Mrs. Talbot had committed the arson and there is certainly exculpatory evidence that she did not. However, the weight of the evidence and the credibility of the witnesses are matters for jury resolution. The issue to be decided is whether a jury, disbelieving the exculpatory evidence and believing the inculpatory evidence, would be authorized to find that Mrs. Talbot had set the fire. We hold that a jury would be authorized so to find and the trial court usurped the jury’s function as the finder of fact.
With regard to Mr. Talbot, the evidence shows only that he was miles away at the time the fire was discovered. This evidence does not, therefore, demonstrate, as a matter of law, that Mr. Talbot had no opportunity whatsoever to have set the fire and, therefore, he did *193not meet his burden of proving that no genuine issue of material fact remained as to his defense of alibi. Moreover, opportunity is not the only inculpatory circumstance which will satisfy the third element of the Braner tripartite test. “The facts which [can be] presented to show the responsibility of the defendant .... are the motive and opportunity of the accused, his prior threats, subsequent admissions of fact, and suspicious conduct on his part.” Grimes v. State, 79 Ga. App. 489, 495 (1) (54 SE2d 302) (1949). There was evidence that Mr. Talbot had previously threatened to kill his wife if she should ever leave him. On the night of the fire, a divorce action was pending and Mrs. Talbot was occupying the house with another man. There was also evidence that, prior to the fire, Mr. Talbot had been “kicked out” of the house and that he had ordered the shut-off of the utilities. As is the case with Mrs. Talbot, the inculpatory evidence does not necessarily demand a finding that he had committed the arson and there is certainly exculpatory evidence to the contrary. However, it is for the jury and not the trial court to resolve fact and credibility issues.
Judgment reversed.
Deen, P. J., Birdsong, Pope and Cooper, JJ., concur. Beasley, J., concurs in judgment only. McMurray, P. J., Banke, P. J., and Sognier, J., dissent.