Affirmative Defenses Not Waived By One-Day Delay of Answer

Where a defendant filed his answer to a legal malpractice claim thirty-one days after being served with process and amended his originally insufficient answer, the Court of Appeals ruled that he did not waive his affirmative defenses.

In Allen v. Ozment, No. W2017-00887-COA-R3-CV (Tenn. Ct. App. Nov. 26, 2018), plaintiff filed a legal malpractice claim against defendant. The complaint was filed more than one year after the previous legal representation ended, and defendant was served a year and a half after the complaint was filed. Defendant filed an answer thirty-one days after being served, wherein he raised the affirmative defenses of insufficient service of process, insufficient process, and failure to state a claim. These affirmative defenses were not stated with the requisite specificity, but the trial court allowed defendant to file an amended answer with more specific affirmative defenses. Defendant filed a motion to dismiss, supported by a memorandum, and the trial court dismissed the claim as time-barred. Plaintiff appealed the dismissal, arguing that defendant had waived his affirmative defenses, but the Court of Appeals affirmed.

First, the Court rejected plaintiff’s argument that the affirmative defenses were waived because the answer was filed thirty-one days after service, rather than thirty. The Court noted that trial courts have discretion to extend the time within which an answer must be filed. The Court pointed out that “Courts are generally directed to exercise… discretion in favor of allowing cases to proceed to the merits” when considering a motion for default judgment, and that this “rule seems no less apt in the situation wherein a plaintiff seeks not to have a default judgment granted, but to have the defendant’s affirmative defenses stricken.” Further, the Court stated that the one-day delay here did not prejudice plaintiff.

Second, the Court rejected plaintiff’s argument that the affirmative defenses were waived because they were not stated with particularity in the original answer. The Court noted that trial courts have discretion to allow parties to amend their pleadings, and that the amended answer filed herein was sufficient under the rules.

Finally, the Court rejected plaintiff’s waiver argument based on defendant’s participation in discovery. While it was true that defendant engaged in discovery after a trial date was set (but before the motion to dismiss had been granted), the Court stated that “nothing in the record indicates that [defendant’s] conduct during discovery was dilatory or amounts to an abandonment of his previously raised defenses.”


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