Subject Matter: Allgood v. Gateway - T CoA opinion
UPDATE 4/21/10: Good day all and FYI – permission to appeal was denied by the Sup Ct. on Monday in this Allgood case below (we reported on 10-6-09).
From: Rebecca Adelman [mailto:rebecca@AdelmanFirm.com]
Sent: Tuesday, October 06, 2009 7:37 PM
Subject: Allgood v. Gateway – T CoA opinion
In this med mal opinion, the defendant won MSJ at the trial level for
failure of process. The MSJ was reversed after the COA held that
Defendant waived the affirmative defense of insufficiency of service of
process even though it was included in the Answer along with all facts
known by the Defendant regarding the grounds for the defense at the time
of the answer. After the Defendant learned of additional facts to
support the defense, he failed to amend his answer or include them in
his interrogatory responses which requested them and instead moved for
summary judgment later after summons was not reissued and the SOL had
expired. The COA reversed.
This opinion underscores the importance of including the facts known for
the affirmative defense under Rule 8.03 when answering, as well as
amending the answer and/or supplementing all affirmative defenses when
new facts are learned that support the affirmative defense. Otherwise,
they will be waived.
Rebecca Adelman, Esq.
THE LAW AND MEDIATION OFFICES
OF REBECCA ADELMAN, PLC
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Firm/Company: Allgood v. Gateway TN Court of Appeals
Document Date: January 1, 1970
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