concurring specially.
I concur specially because the trial court decided a question not yet before it, and it is not the function of this court to compound the error by addressing the merits of a question that should not have been addressed below at this stage of the litigation. Specifically, I do not reach the question of which, if any, statute of limitation could apply in this case, because no defense based on a statute of limitation has yet been raised below by the appellees.
Statutes of limitation provide affirmative defenses to an action, OCGA § 9-11-8 (c), and “[a] defendant may not avail himself of an affirmative defense which he failed to properly present.” Searcy v. Godwin, 129 Ga. App. 827, 829 (201 SE2d 670) (1973). “ ‘The bar of the statute (of limitation) is a privilege to the defendant, the benefit of which he may elect to take advantage of or waive as he pleases. The statute in most instances operates upon the remedy and not the right; and hence if the defendant chooses not to raise the objection of the lapse of the statutory time, the right will be enforced, and will result in a judgment which will possess all the attributes of, and be as effective as, a judgment rendered within the statutory period.’ [Cit.]” Id.
I am aware of no authority establishing that the affirmative defense created under OCGA § 11-2-725 (1) may not be waived. Moreover, it is not within the trial court’s discretion to assert an affirmative defense sua sponte on the defendant’s behalf, and that is precisely what happened here. Cf. McLanahan v. Keith, 239 Ga. 94 (236 SE2d 52) (1977). Even if this were not so, it remains that “[t]he purpose of the requirement that affirmative defenses be pleaded is to prevent surprise and to give the opposing party fair notice of what he must meet as a defense.” Phillips v. State Farm Mut. Auto. Ins. Co., 121 Ga. App. 342, 346 (2) (a) (173 SE2d 723) (1970). A sua sponte dismissal without notice cannot serve this purpose.
Contrary to the majority’s unsupported assertion, I have in no way suggested that the appellees are totally precluded from raising the defense of the applicable statute of limitation. I observe only that they are likewise not precluded from waiving its protection and that it is not for the trial court to assert defenses in this case on behalf of the appellees.
The trial court erred in dismissing this case based on an affirmative defense that was never raised by the appellees. For this reason I concur with the result reached by the majority in Division 1.
I am authorized to state that Presiding Judge Pope joins in this *659special concurrence.
Decided March 15, 1995. Frederick J. Hanna, Elizabeth C. Whealler, for appellant. Robert C. Cheatham, Joyce H. Cheatham, pro se.