                                                                                                      11/26/2018
                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                   September 12, 2018 Session

                         CARL ALLEN v. JOSEPH S. OZMENT

                      Appeal from the Circuit Court for Shelby County
                          No. CT-002625-13 Jerry Stokes, Judge
                         ___________________________________

                               No. W2017-00887-COA-R3-CV
                           ___________________________________


Appellant appeals the dismissal of his legal malpractice claim, arguing that the
affirmative defenses raised by the defendant attorney were waived. Because we conclude
that the defendant attorney’s affirmative defenses were not waived, we affirm the
decision of the trial court

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which ARNOLD B.
GOLDIN and KENNY ARMSTRONG, JJ., joined.

Carl Allen, Memphis, Tennessee, Pro se.

Stephen C. Barton and Patrick S. Quinn, Memphis, Tennessee, for the appellee, Joseph S.
Ozment.

                                              OPINION

                                             Background
       Plaintiff/Appellant Carl Allen hired Defendant/Appellee Joseph S. Ozment
(“Attorney Ozment”) to defend against certain criminal charges, the facts of which are
not relevant to this appeal. The relationship terminated in June 2011.
       On June 19, 2013, Mr. Allen filed a complaint alleging legal malpractice against
Attorney Ozment.1 Attorney Ozment was undisputedly served with process on January
12, 2015. On February 12, 2015, thirty-one days following service, Attorney Ozment
filed a motion to dismiss and answer, raising the defenses of insufficient service of

      1
          At all times throughout the pendency of this proceeding, Mr. Allen has been incarcerated.
process, insufficient process, and failure to state a claim. On March 30, 2015, Attorney
Ozment filed a memorandum that provided additional factual support for his motion to
dismiss.
       A hearing on the motion to dismiss was set for July 9, 2015. The same day, an
order was entered granting Attorney Ozment’s motion to dismiss. Mr. Allen responded in
opposition to the motion to dismiss on May 9, 2016. On the same day, Mr. Allen filed a
motion to set aside a final order pursuant to Rule 60.02 of the Tennessee Rules of Civil
Procedure.2 On November 8, 2016, the trial court granted Mr. Allen’s Rule 60.02 motion,
ruling that Mr. Allen did not receive proper notice of the hearing on the motion. The trial
court thereafter reset Attorney Ozment’s motion to dismiss for hearing. A trial date was
also set and Attorney Ozment thereafter propounded written discovery on Mr. Allen.
       On November 23, 2016, Mr. Allen filed a motion for default judgment on the basis
that Attorney Ozment’s answer was untimely and that the answer did not state sufficient
facts regarding the affirmative defenses. In response, on December 21, 2016, Attorney
Ozment filed a motion to amend his answer to specifically include certain factual
averments that had previously only been included in the memorandum filed following the
answer. A few days later, Attorney Ozment filed a supplement to his motion to dismiss, a
reply to Mr. Allen’s previously filed response in opposition, and a response in opposition
to the motion for default judgment. Mr. Allen responded in opposition to the motion to
amend the answer on January 1, 2017.
        A hearing was held on January 5, 2017. During the hearing, Mr. Allen presented
an oral motion that Attorney Ozment waived his right to proceed on the motion to
dismiss under an estoppel theory. On January 18, 2017, several things happened: (1) the
trial court denied Mr. Allen’s motion for default judgment; (2) the trial court denied Mr.
Allen’s oral motion regarding waiver; (3) the trial court granted Attorney Ozment’s
motion to amend the answer; and (4) an amended answer was filed by Attorney Ozment.
On February 27, 2017, Mr. Allen filed a pleading entitled “Plaintiff’s Written Responses
to Arguments Presented by Defendant During his January 5, 2017 Hearing on
Defendant’s Motion to Dismiss.”
       A second hearing was scheduled for March 9, 2017, to resolve the pending motion
to dismiss. Mr. Allen was present for this hearing and argued that the motion should not
be granted due to violations of procedural rules applicable to answers and motion
practice. The trial court ultimately again granted the motion to dismiss, ruling that the
complaint was barred by the applicable statute of limitations and service of process on



        2
          The record is not compiled correctly in this case. Although the initial order granting the motion
to dismiss was filed in 2015, the technical record’s table of contents recites that it was filed in 2016,
following the filing of Mr. Allen’s motion to set aside. As such, the record incorrectly places the order
granting the motion to dismiss as filed subsequent to Mr. Allen’s motion to set that order aside.
                                                   -2-
Attorney Ozment did not comply with Rule 3 of the Tennessee Rules of Civil Procedure.3
After the denial of his post-trial motions, Mr. Allen appealed to this Court.
                                         Issues Presented
      Mr. Allen raises a number of issues in this appeal, specifically:
      1.     Whether the trial court erred by granting Attorney Ozment’s motion
      to dismiss when Attorney Ozment’s failure to file his motion to dismiss and
      answer within thirty days of the January 12, 2015 service of the complaint
      and summons upon him constituted a waiver of his affirmative defenses
      raised therein.
      2.      Whether the trial court erred by failing to afford Mr. Allen an
      opportunity to present his argument in support of his motion for default
      judgment, although the trial court’s written order denying such motion
      states its finding was based on the arguments of Mr. Allen and Attorney
      Ozment.
      3.      Whether the trial court erred by granting Attorney Ozment’s motion
      to amend answer without affording Mr. Allen an opportunity to respond to
      Attorney Ozment’s oral arguments in support of such motion, although the
      trial court’s written order granting such motion states its finding was based
      on the arguments of Mr. Allen and Attorney Ozment.
      4.     Whether the trial court erred by granting Attorney Ozment’s motion
      to dismiss when Attorney Ozment had waived his affirmative defenses by
      agreeing to a trial date and participating in discovery prior to his motion to
      dismiss and answer setting forth the facts with specificity and particularity
      support his affirmative defenses raised therein.
      5.      Whether the trial court erred by granting Attorney Ozment’s motion
      to dismiss when Attorney Ozment had waived his affirmative defenses
      prior thereto by failing to file such motion with the required specificity and
      particularity before he filed his answer to the complaint.


      3
          Rule 3 provides:

              All civil actions are commenced by filing a complaint with the clerk of the court.
      An action is commenced within the meaning of any statute of limitations upon such filing
      of a complaint, whether process be issued or not issued and whether process be returned
      served or unserved. If process remains unissued for 90 days or is not served within 90
      days from issuance, regardless of the reason, the plaintiff cannot rely upon the original
      commencement to toll the running of a statute of limitations unless the plaintiff continues
      the action by obtaining issuance of new process within one year from issuance of the
      previous process or, if no process is issued, within one year of the filing of the complaint.
                                                 -3-
Based on the foregoing, we affirm the decision of the trial court.
                                    Standard of Review
       This case was decided on a motion to dismiss. A motion to dismiss “challenges
‘only the legal sufficiency of the complaint, not the strength of the plaintiff’s proof or
evidence.’” Phillips v. Montgomery Cty., 442 S.W.3d 233, 237 (Tenn. 2014) (quoting
Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn.
2011)). The defendant “‘admits the truth of all the relevant and material allegations
contained in the complaint, but . . . asserts that the allegations fail to establish a cause of
action.” Id. (quoting Webb, 346 S.W.3d at 426). Our determination is based on the
pleadings alone. Id. We review the trial court’s decision on a motion to dismiss de novo
with no presumption of correctness. Id. (citing Cullum v. McCool, 432 S.W.3d 829, 832
(Tenn. 2013)).
       In addition, this case involves the interpretation and application of Tennessee’s
civil procedure rules. Interpretation and construction of the Tennessee Rules of Civil
Procedure likewise involve questions of law, which we review de novo with no
presumption of correctness. Fair v. Cochran, 418 S.W.3d 542, 544 (Tenn. 2013). We
apply the rules as written, unless the language is ambiguous. See id.
                                          Analysis
       Here, Mr. Allen does not appear to contest the trial court’s determination that his
complaint was filed beyond the one-year statute of limitations applicable to legal
malpractice actions or that service was not accomplished pursuant to Rule 3. Rather, Mr.
Allen asserts that certain procedural defects prevent Attorney Ozment from raising these
issues as affirmative defenses.
      Before proceeding to the merits of this appeal, we must note that Mr. Allen is
proceeding pro se in this court, as he did in the trial court. As this court has explained:
              Parties who decide to represent themselves are entitled to fair and
       equal treatment by the courts. The courts should take into account that
       many pro se litigants have no legal training and little familiarity with the
       judicial system. However, the courts must also be mindful of the boundary
       between fairness to a pro se litigant and unfairness to the pro se litigant’s
       adversary. Thus, the courts must not excuse pro se litigants from complying
       with the same substantive and procedural rules that represented parties are
       expected to observe.
            The courts give pro se litigants who are untrained in the law a certain
       amount of leeway in drafting their pleadings and briefs. Accordingly, we

                                             -4-
        measure the papers prepared by pro se litigants using standards that are less
        stringent than those applied to papers prepared by lawyers.
                Pro se litigants should not be permitted to shift the burden of the
        litigation to the courts or to their adversaries. They are, however, entitled to
        at least the same liberality of construction of their pleadings that Tenn. R.
        Civ. P. 7, 8.05, and 8.06 provide to other litigants. Even though the courts
        cannot create claims or defenses for pro se litigants where none exist, they
        should give effect to the substance, rather than the form or terminology, of
        a pro se litigant’s papers.
Hessmer v. Hessmer, 138 S.W.3d 901, 903–04 (Tenn. Ct. App. 2003) (citations omitted).
We keep these principals in mind in considering Mr. Allen’s appeal.4
                                                    I.
       Turning to the merits of this appeal, Mr. Allen first argues that Attorney Ozment’s
affirmative defenses were waived in three ways: (1) where Attorney Ozment filed his
answer raising these defenses more than thirty days following service of process; (2)
where the defenses were not sufficiently stated in the answer or motion to dismiss; and
(3) where Attorney Ozment participated in discovery. We begin with the timelines of
Attorney Ozment’s answer.
        Rule 12.02 of the Tennessee Rules of Civil Procedure indeed states that “[a]
defendant shall serve an answer within 30 days after the service of the summons and
complaint upon the defendant.” Both insufficiency of service of process and the statute of
limitations are affirmative defenses. Tenn. R. Civ. P. 8.03 (detailing affirmative defenses
and the procedure applicable thereto). Affirmative defenses must be raised in an answer
or a pre-answer motion. See Allgood v. Gateway Health Sys., 309 S.W.3d 918, 925
(Tenn. Ct. App. 2009) (“[A]n affirmative defense . . . must be presented in the
defendant’s answer or in a pre-answer motion.”). The failure to comply with this rule will
result in waiver of the defenses. See Tenn. R. Civ. P. 12.08 “(A party waives all defenses
and objections which the party does not present either by motion as hereinbefore
provided, or, if the party has made no motion, in the party’s answer or reply, or any
amendments thereto, (provided, however, the defenses enumerated in 12.02(2), (3), (4)
and (5) shall not be raised by amendment) . . . .”) (noting certain exceptions not relevant
in this case).
       There is no dispute that Attorney Ozment’s answer was filed thirty-one days
following service of process. Tennessee law provides, however, that even where an
answer is filed late, “the trial court had the authority for cause shown, at any time in its
discretion, to enlarge the time for answering, with or without a motion being filed, if the

        4
          We note that while we ultimately do not rule in favor of Mr. Allen in this appeal, his arguments
are clear and well-supported by relevant authority.
                                                  -5-
request was made before the expiration of the time for answering, or upon motion after
the expiration of the time for answering, where the failure to act was the result of
excusable neglect.” Elliott v. Akey, No. E2004-01478-COA-R3-CV, 2005 WL 975510, at
*2 (Tenn. Ct. App. Apr. 27, 2005) (citing Tenn. R. Civ. P. 6.02). In most instances, the
failure to comply with Rule 12.01’s time limitation is raised in the context of a motion for
default judgment. Here, Mr. Allen filed a motion for default judgment, which was denied
by the trial court. The decision to grant or deny a motion for default judgment lies in the
sound discretion of the trial court and we do not overturn discretionary decisions absent
an abuse of that discretion. Id. Moreover, Mr. Allen has not raised the denial of his
motion for default judgment as an issue in this appeal.
        Taking the facts in this record as a whole, we cannot conclude that the trial court
erred in allowing Attorney Ozment’s answer, including all properly raised affirmative
defenses, to be filed one day late. Unlike some other types of filings, answers to
complaints are subject to enlargements of time pursuant to Rule 12.01. Elliott v. Akey,
No. E2004-01478-COA-R3-CV, 2005 WL 975510, at *2 (Tenn. Ct. App. Apr. 27, 2005)
(applying Rule 6.02 to an enlargement of time for filing an answer). But see Rutherford
v. Rutherford, 416 S.W.3d 845, 846 (Tenn. Ct. App. 2013) (holding that Rule 6.02 did
not apply to petitions opposing relocation of a parent). Moreover, default judgments, the
type of relief sought when no timely response is filed, are not mandatory, but are left to
the trial court’s discretion. Patterson v. Rockwell Int’l, 665 S.W.2d 96, 100 (Tenn.1984).
Courts are generally directed to exercise this discretion in favor of allowing cases to
proceed to the merits unless there is no reasonable doubt that the default should be
granted. See Cooper v. Cooper, No. M2007-1002-COA-R10-CV, 2007 WL 1791678, at
*2 (Tenn. Ct. App. June 8, 2007) (“[C]ourts prefer to see cases determined on the merits
whenever possible.”). 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.
       Given the mere one day delay in the filing of the answer, it cannot be fairly stated
that any true prejudice resulted to Mr. Allen as a result of the delay. See Hickman v.
Tennessee Bd. of Paroles, 78 S.W.3d 285, 288 (Tenn. Ct. App. 2001) (holding that
whether Rule 6.02 should be applied to allow an enlargement of time is “a function of the
length of time that has passed since the deadline and the possible harm to the opposing
party brought about by the failure to act within the deadline”); Nelson v. Simpson, 826
S.W.2d 483, 485 (Tenn. Ct. App. 1991) (noting that prejudice to the defendant is one
factor in determining whether to grant or set aside a default judgment). Moreover, as
previously discussed, Appellant has not asserted in this appeal that the trial court erred in
finding Attorney Ozment’s defenses meritorious. See Nelson, 826 S.W.2d at 485
(holding that whether the defendant has asserted a meritorious defense should also be
considered in determining the propriety of a default judgment). Under these
circumstances, we cannot conclude that the trial court erred in allowing the answer,
including all properly raised affirmative defenses, despite the fact that it was filed on day

                                            -6-
thirty-one following the service of the complaint in this case. Cf. Elliott, 2005 WL
975510, at *2 (holding that, assuming defendant’s answer was untimely, the plaintiff did
not show that the trial court abused its discretion in not setting aside the defendants
answer); Hickman, 78 S.W.3d at 288 (declining to find an abuse of discretion in the trial
court’s grant of a motion for an enlargement of time even though the motion “was not
supported by even a colorable explanation for the inability to file the motion” on time).
        Mr. Allen next asserts that regardless of the timeliness of the answer, Attorney
Ozment’s affirmative defenses are waived by Attorney Ozment’s failure to state the facts
supporting the defenses with particularity. In addition to being untimely raised,
affirmative defenses may be waived in other circumstances. Failure to sufficiently plead
an affirmative defense is indeed one of these situations:
      An affirmative defense must be “specifically pleaded.” George v. Bldg.
      Materials Corp. of Am., 44 S.W.3d 481, 486 (Tenn. 2001). Rule 8.03
      clearly contains a “specificity requirement.” Allgood, 309 S.W.3d at 925.
      Rule 8.03 requires that a party “set forth affirmatively facts in short and
      plain terms relied upon to constitute . . . [a] statute of repose [or statute of
      limitations]” defense. “Conclusory allegations” do not satisfy the
      specificity requirements of Rule 8.03. ACG, Inc. v. Se. Elevator, Inc., 912
      S.W.2d 163, 170 (Tenn. Ct. App. 1995); see also In re Estate of Brown,
      402 S.W.3d 193, 199 (Tenn. 2013) (“[U]nlike challenges to subject matter
      jurisdiction which cannot be waived, defenses based on the statute of
      limitations are affirmative defenses that can be waived unless they are
      specifically pleaded.”); George, 44 S.W.3d at 487 (“The specific pleading
      requirements of [Rule] 8.03 are designed to prevent trial by ambush . . . .”).
Pratcher v. Methodist Healthcare Memphis Hospitals, 407 S.W.3d 727, 736 (Tenn.
2013). Thus, affirmative defenses, including the ones raised in this case, may be waived
by failure to plead them with particularity. The Tennessee Supreme Court, however, has
held that the waiver rule “is not rigid and inflexible because trial judges have wide
latitude to allow a defendant to amend its answer before trial.” Id. at 735–36 (citing
Biscan v. Brown, 160 S.W.3d 462, 471 (Tenn. 2005) (“The rules relating to amendment
of pleadings are liberal, vesting broad discretion in the trial court.”)).
       Here, we agree that Attorney Ozment’s initial answer does not comply with Rule
8.03’s specificity requirement. The answer merely states that the complaint should be
dismissed due to expiration of the statute of limitations, insufficiency of process, and
insufficient service of process. The trial court, however, granted Attorney Ozment’s
motion to amend the answer. The trial court’s ruling on this issue is reviewed for an
abuse of discretion and nothing in Mr. Allen’s brief on appeal has established that the
trial court’s decision was an abuse of discretion. Freeman Indus. LLC v. Eastman
Chem. Co., 227 S.W.3d 561, 565 (Tenn. Ct. App. 2006) (citing Eldridge v. Eldridge, 42
S.W.3d 82, 85 (Tenn.2001); Merriman v. Smith, 599 S.W.2d 548, 559 (Tenn. Ct. App.
                                           -7-
1979)) (“[T]he trial court has the discretion to grant or deny a motion to amend, and this
court will reverse the decision only for an abuse of discretion. . . . A trial court abuses its
discretion only when it applies an incorrect legal standard, or reaches a decision which is
against logic or reasoning that causes an injustice to the party complaining.”) (internal
citation and quotation marks omitted). The amended answer contains sufficient factual
allegations to satisfy Rule 8.03 requirements and, pursuant to Rule 15.03 of the
Tennessee Rules of Civil Procedure,5 relates back to the timing of the filing of the initial
answer. Based on the foregoing, the answer, as amended, was therefore sufficient and
timely.
        Mr. Allen also asserts that the affirmative defenses at issue in this case should be
waived because they were not stated with specificity within Attorney Ozment’s motion to
dismiss. Rule 7.02 of the Tennessee Rules of Civil Procedure provides that “[a]n
application to the court for an order shall be by motion which, unless made during a
hearing or trial, shall be made in writing, shall state with particularity the grounds
therefor, and shall set forth the relief or order sought.” Pursuant to this rule, a motion
seeking dismissal on the ground of failure to state a claim must state “why the plaintiff
has failed to state a claim for which relief can be granted.” Willis v. Tennessee Dep’t of
Correction, 113 S.W.3d 706, 714 (Tenn. 2003). Here, Attorney Ozment filed a combined
motion to dismiss and answer. Although the motion portion of the document stated only
that the complaint should be dismissed for failure to state claim, insufficiency of process,
and insufficiency of service of process, the answer portion of the document details that
the failure to state a claim defense is based upon the expiration of the statute of
limitations. See generally Young ex rel. Young v. Kennedy, 429 S.W.3d 536, 549 (Tenn.
Ct. App. 2013) (holding that a statute of limitations defense is properly characterized as
failure to state a claim). As such, the document as a whole details why the plaintiff’s
complaint fails to state a claim. Cf. Pickard v. Ferrell, 45 Tenn. App. 460, 471, 325
S.W.2d 288, 292–93 (Tenn. 1959) (noting that motions should be judged by their content,
rather than their caption).
       Moreover, Attorney Ozment’s motion to dismiss was later supplemented by a
memorandum of law detailing the facts surrounding these defenses.6 Many courts have
held that such memorandums do not satisfy the requirements of Rule 7.02, particularly
where the memorandums were not included in the appellate record. See, e.g., Willis v.
Tennessee Dep’t of Correction, 113 S.W.3d 706, 714 (Tenn. 2003) (“Including the
grounds for a Rule 12.02(6) motion in a separate memorandum of law does not comply
with Rule 7.02(1).”); Mitchell v. Campbell, 88 S.W.3d 561, 566 n.4 (Tenn. Ct. App.
        5
           Rule 15.03 provides, in relevant part that “[w]henever the claim or defense asserted in amended
pleadings arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the
original pleading, the amendment relates back to the date of the original pleading.”
         6
           In actuality, Attorney Ozment supplemented his motion three times: (1) with the original
memorandum filed on March 30, 2015; (2) with a supplement to the motion to dismiss filed on
December 28, 2016; and (3) with a second supplement to the motion to dismiss filed on February 28,
2017.
                                                   -8-
2002) (“Suffice it to say that articulating a defense in a memorandum accompanying a
motion does not amount to compliance with Tenn. R. Civ. P. 7.02(1).”); Hickman v.
Tennessee Bd. of Paroles, 78 S.W.3d 285, 287 n.2 (Tenn. Ct. App. 2001) (same);
Robinson v. Clement, 65 S.W.3d 632, 636 (Tenn. Ct. App. 2001) (same).7 In many of
these cases, however, the courts nevertheless considered the defenses on the merits. See,
e.g., Willis, 113 S.W.3d at 714 (noting the noncompliance with Rule 7.02 but
nevertheless considering whether the plaintiff’s complaint failed to state a claim); Ralph
v. Pipkin, 183 S.W.3d 362, 367 (Tenn. Ct. App. 2005) (expressly holding that while the
motion to dismiss was deficient, the court would follow the precedent set in Willis to
nevertheless consider the motion); Mitchell, 88 S.W.3d at 565 (noting the noncompliance
with Rule 7.02, but nevertheless considering whether the complaint failed to state a
claim); Hickman, 78 S.W.3d at 288–91 (same); Robinson, 65 S.W.3d at 637 (same). But
see Finchum v. Ace, USA, 156 S.W.3d 536, 539 (Tenn. Ct. App. 2004) (Susano, J.,
dissenting) (refusing to consider the motion to dismiss where it said no more than the
complaint should be dismissed based upon Rule 12.02(6) of the Tennessee Rules of Civil
Procedure).8 Additionally, this court has recently held that it is appropriate to consider
facts as alleged in accompanying memorandums when no prejudice resulted from the
delay in asserting the facts. See Young ex rel. Young v. Kennedy, 429 S.W.3d 536, 552
(Tenn. Ct. App. 2013) (holding that because no action was taken between the filing of the
answer and the memorandum, the plaintiff could assert no prejudice in considering the
memorandum for purposes of whether the defendant had satisfied Rule 8.03).
        Here, Attorney Ozment’s original motion to dismiss, taken as a whole, states that
the complaint fails to state a claim because it is barred by the applicable statute of
limitations. The trial court later ruled that Mr. Allen’s complaint failed to state a laim
based on this defense, as well as insufficient service of process. In addition to the
allegations contained in that document, Attorney Ozment later supplemented the motion
with a memorandum providing more detailed factual allegations. Mr. Allen filed no

        7
          According to the Tennessee Supreme Court, this rule is necessary “in light of Tennessee Rule of
Appellate Procedure 24(a)’s language that trial briefs and counsel’s memoranda of law are not part of the
record on appeal.” Willis, 113 S.W.3d at 709 n.2; see also Mitchell, 88 S.W.3d 564 n.4 (noting that
memorandums are “not a part of the appellate record” under Rule 24(a)). From our reading of the versions
of Rule 24(a) applicable in 2003 and currently, trial briefs are indeed expressly excluded from the
appellate record; memorandums of law, however, are not specifically mentioned. Tenn. R. App. P. 24(a)
(“The following papers filed in the trial court are excluded from the record: . . . (4) trial briefs; . . . .”).
        8
          Finchum was split decision, with a strong dissent filed by Judge Charles D. Susano. Judge
Susano opined that the court should consider the motion in spite of its deficiencies, in line with the
Tennessee Supreme Court’s action in Willis. Finchum, 156 S.W.3d at 539 (Susano, J., dissenting) (“If
the Supreme Court in Willis did not believe the deficiency in the State’s Tenn. R. Civ. P. 12.02 motion
was serious enough to warrant a remand in that case, I do not understand why the majority believes a
remand is appropriate in the instant case.”). The Ralph decision later expressly disagreed with the
outcome of Finchum on the same basis. Ralph, 183 S.W.3d at 367 n.1. The Tennessee Supreme Court
denied applications for permission to appeal in both Ralph and Finchum, with the denial in Ralph
occurring nearly a year following the denial in Finchum.
                                                     -9-
response or pleading in the time between the filing of the answer and motion to dismiss
and the March 30, 2015 memorandum. Under these circumstances, we cannot conclude
that the trial court erred in declining to find Attorney Ozment’s affirmative defenses
waived for purported noncompliance with Rule 7.02(1).
        Mr. Allen also argues that Attorney Ozment’s affirmative defenses should be
waived where he participated in discovery. It is generally true that, by the defendant’s
own conduct, he or she may “be estopped to object” to the sufficiency of service of
process. Faulks v. Crowder, 99 S.W.3d 116, 125 (Tenn. Ct. App. 2002). “Such conduct
may include participating in discovery[.]” Id. (citing Martin v. Mills, 138 F.R.D. 151,
153 (S.D.Ga. 1991)). For example, our supreme court has held that where a defendant
participated in the litigation for two years before raising “an avoidance” defense, the
defense was waived. Barker v. Heekin Can Co., 804 S.W.2d 442, 444 (Tenn. 1991)
(holding that the trial court erred in dismissing the case based upon insufficiency of
service of process where this defense was not properly raised until two years into the
litigation following participation in discovery).
       The same is not true in this case. Here, Attorney Ozment raised the defenses
ultimately relied upon by the trial court in his first responsive pleading filed thirty-one
days following service of process. These defenses were later supplemented by a
memorandum. Although the record does show that Attorney Ozment participated in
discovery after a trial date was set, nothing in the record indicates that Attorney Ozment’s
conduct during discovery was dilatory or amounts to an abandonment of his previously
raised defenses. Considering the facts of this case as a whole, we cannot conclude that
Attorney Ozment should be estopped from raising his affirmative defenses due to
participation in discovery in this case.
                                             II.
        Mr. Allen finally asserts that the trial court erred in entering orders on his motion
for default judgment and Attorney Ozment’s motion to amend answer without allowing
Appellant an opportunity to orally argue these motions. In his brief, Mr. Allen takes issue
with the fact that the trial court’s orders state that they are based in part “upon arguments
of the plaintiff,” while Mr. Allen contends he was not provided “an opportunity to present
any arguments” in support of motion for default judgment or in response to the motion to
amend Attorney Ozment’s answer. Respectfully, we disagree. Although Mr. Allen did
not present oral argument as to Attorney Ozment’s motion to amend the answer, Mr.
Allen did file a written response to that motion. Likewise, Mr. Allen filed a written
motion for default judgment containing detailed argument in support thereof. Thus, the
trial court’s notation that it considered the “arguments of the plaintiff” likely refers to
these written arguments. Moreover, we note that Mr. Allen was present at the January 5,
2017 hearing in which these motions were considered and offered considerable argument



                                           - 10 -
regarding the pending motion to dismiss.9 Mr. Allen’s arguments in support of the motion
for default judgment and in opposition to the motion to dismiss are both based on issues
of waiver, arguments that were fully briefed by Mr. Allen throughout the trial court
proceedings. Additionally, although the trial court did not specifically offer Mr. Allen an
opportunity to orally argue the motion to amend and the motion for default judgment, we
note that Mr. Allen never expressly objected to the trial court’s decision to rule on the
motions without hearing from him orally during that hearing.
        Moreover, in a case cited by Mr. Allen in his brief, we noted that a lack of
personal appearance is not a bar to the grant of a motion to dismiss where “the inmate
had ample opportunity to file documents presenting his legal theories as to why the suit
should not be dismissed on the pleadings.” Knight v. Knight, 11 S.W.3d 898, 906 (Tenn.
Ct. App. 1999) (citing Montague v. Johnson City, No. 03A01-9402-CV-00049, 1994
WL 287587, at *3 (Tenn. Ct. App. June 30, 1994), perm. app. denied (Tenn. Oct. 3,
1994)). The mere grant of a motion to amend an answer or the denial of a default
judgment, neither of which are dispositive of the case, demands no more protection than
the grant of a motion to dismiss. Based on the record as a whole, we discern no reversible
error in the trial court’s decision to rule on the motion to amend answer and motion for
default judgment despite the fact that Mr. Allen was not permitted the opportunity to
orally argue the pending motions. See Tenn. R. App. P. 36(b) (“A final judgment from
which relief is available and otherwise appropriate shall not be set aside unless,
considering the whole record, error involving a substantial right more probably than not
affected the judgment or would result in prejudice to the judicial process.”).
       In sum, Mr. Allen has shown no reversible error in the trial court’s consideration
of Attorney Ozment’s affirmative defenses or the trial court’s decisions regarding the
motion for default judgment and motion to amend. Because Mr. Allen has offered no
argument to show that the trial court erred in finding that his complaint was barred by the
applicable statute of limitations or that he failed to comply with Rule 3 of the Tennessee
Rules of Civil Procedure, we affirm the trial court’s decision to dismiss Mr. Allen’s
complaint.
                                                   III.
       The judgment of Circuit Court of Shelby County is affirmed. This cause is
remanded to the trial court for all further proceedings as are necessary and consistent with
this opinion. Costs of this appeal are taxed to Appellant Carl Allen, for which execution
may issue if necessary.


        9
          The confusion over what motion was being argued does not appear to be attributable to Mr.
Allen. In fact, the trial court specifically asked Mr. Allen if he was prepared to argue the motion to
dismiss. The trial court later ruled, however, the motion to dismiss would be continued to a later hearing.
Mr. Allen was again present at this hearing and argued in opposition to the motion to dismiss on
procedural grounds.
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         _________________________________
         J. STEVEN STAFFORD, JUDGE




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