main issues underlying this appeal but i like to give my time this morning by addressing the one that really goes to the heart in the core of this matter and that is the appropriate standard for a district court to apply when reviewing a complaint that's been faced with a motion to dismiss this court and the supreme court's precedent mandate that the district court must take all well pled factual allegations is true and then draw reasonable inferences therefrom in favor of the plaintiff to determine if the plaintiff has stated a plausible claim for relief against the defendant here the district court erred by only looking at three factual allegations and finding that there were not reasonable inferences to be drawn in favor of the plaintiff to state a claim for relief when in fact there were eight clearly pled factual as of allegations st the complaint stated that two international brand trucks were purchased from the defendant on april th two thousand and nd the complaint stated that the defendant's agents expressly warranted that the trucks would be free from defects and suitable for the purposes for which they were manufactured and sold rd at the time of the sale the complaint states that trucks were warranted for an additional twenty four months or two hundred thousand additional miles th the complaint states that shortly after the truck's experience breakdowns of mechanical defects with everything ranging from gasket failures to problems with the air conditioning fit the complaint states that engine breakdowns occurred in both trucks between three and four months after the date of purchase six the complaint states that the trucks required down time from eight and nine months of the fourteen months that the plaintiff possessed the trucks the complain also states that the plaintiff lost contracts within three days after the purchase by april nd two thousand and seventeen due to the in operability of the trucks and ate the complaint sufficiently and well pleads allegation that the plaintiffs incurred damages including lost profits downtime expenses and other incidental and consequential damages now it's admitted the plaintiff's trial counsel did not draft a perfect complaint but this court's precedent does not require a perfectly put complaint but it allows for well played complaints and then there's inferences that can be drawn to fill in the gaps that are left from a complaint that's not perfectly pled and when there's inferences and holes in a complaint the district court is faced with a choice does it choose to fill in these gaps in these missing pieces with inferences in favor of the plaintiff or does it choose in favor of the defendant let me just ask you what was left out of the complaint appears to be pretty  the owner of the complex the argument before the district court rather tribal council at the motion to dismiss state was always that the complaint was sufficiently pled and it was always that there were inferences that could be drawn from the allegations and the court was charged with looking at the complaint and when faced with a motion to dismiss and this is not a case where there has been voluminous discovery in depositions that the court would have to pour through to find the dates of three days later  built in operability the plaintiff lost contracts though the specific allegation that the trucks were unfit at the time or the express representations made were false at the time of the sale was not specifically made it can be inferred by the fact that there were in operability there were operability problems just merely three days later and that argument should not be forfeited because the forfeiture doctrine is a discretionary doctrine that this court can choose to apply or not apply and the reasoning for the forfeiture doctrine is for to prevent unfair review of a district court ruling and to prevent unfair surprise to a defendant but the district court in its in its opinion stated that there was simply not enough specific facts in this case and on and on appeal the appellate counsel has pointed out where those specific facts can be found and i ask a question about the notice requirement or the u c c it's so there that  a commercial setting finding about presorted preset notice versus regular notice in a case involving commercial commercial issue but in cases that or dealing with commercial issues the reasoning for precinct notice is to allow  time for fear and in this case there was a time for cure that the complaint states that the defendant agents had to trucks for eight in nine out of fourteen months that they were continuously brought in for repairs and that the ability and the opportunity to cure was present in this case and so while it's not completely clear under timoci warranty law as to whether precision notice is mandatory or notice vs suit is enough in this case it would be enough to just have an opportunity for a cure and i think looking at the reasoning you think that there has to be so you clearly allege notice of the facts this kind of back and forth but the way i read that case was to suggest that  because that case also involve notice of problems but you have to say that not only are there problems but these that these problems rise to the level of a breach and do you think that just alleging that the facts should be enough understand it siegel not necessarily in a case that's taken all the way to a conclusion but at this early juncture in this stage with inferences being drawn in favor of the plaintiff i would say that it is enough especially given the  provision in the corresponding tennessee provision they both contain a comment that states that it must not be the content of the notification need merely be sufficient to let the seller know the transit of the transaction is troublesome and so i think it's a it's a low standards a liberal standard in these both consumer friendly provisions both the u c c and the tennessee dca provision that looks at that that as long as there is enough time to cure and as long as the seller is on sufficient notice that the truck the transaction could be troublesome and that could be enough to satisfy the pre notice requirement under tennessee warranty law i'm struggling a little bit with it was a recognition that the complaint the dispute over whether there was a proper motion to amend filed within a minute complaint is kavin specifically to the tennessee consumer protection act claim and it's admitted that there is a high pleading standard in the tennessee consumer protection act claim and that complaint as written is not sufficient and the the trial counsel had a misunderstanding of the interplay of the local rules in the federal rules and never filed an adequate motion to amend but that failure is only for the tennessee consumer protection enough allegations that can create a retroactive inference to the date of sale so looking at the express warranty implied warranty of merchantability claims the express warranty question is whether the statements that they were the trucks were free of defects unsuitable for the purposes for which they were manufactured and sold was false at the time of sale and similarly the implied warranty of merchantability question is whether they were unfit at the time they went from the seller to the buyer and with the allegations looking at them as a whole the district court said that the the conclusory allegation of claiming that the facts arose shortly after without more is insufficient however looking at the at the seven page complaint and those eight factual allegations that i pointed out to the court the inference is stemming from those show where the more that the district court was was searching for can be found similarly the the statements about whether the  operability occurred within three days after the truck though it was not raised directly below it can be found in the complaint and it's even admitted by the in the defendant's brief when the defense brief on page id number twenty one states that there were trucks experienced in o y from intermittently from april of two thousand and seventeen the month of purchase there june of two thousand and eighty and the trucks were purchased on april th and so an admission that there were defects in april shows that this court can draw a retroactive inference from the st defect back to the time of sale and there's case law in this in this circuit and in tennessee that allows such a retroactive inference and though this law is not directly binding on this it shows that later arising defects in functionality of mechanical vehicles can be referred retroactively especially early in a case as this procedural posture is later on discovery may show that the defects arose later or depositions may show that the express warranties were not stated as the complaint says but at this early juncture there's enough pleadings in the complaint that it's not perfectly drawn to draw a reasonable inference is to create a retroactive inference and state that these problems occurred at the time of sale in this complaint a good example court seem to feel that argument needed to be right as opposed to and while the planet never wants to pass the burden to the court this is not the situation where they're having to address hundreds of pages and statements of additional facts and looking at things like that there is admittedly only three dates in the entire complaint and one of those date two of those dates are april th and april nd and they're only seven paragraphs apart the trial counsel's argument was was general in stating that the complaint is sufficient to draw reasonable inferences and  came in and said the inferences that the district court is looking for on specificity are right here in these two paragraphs in the the forfeiture doctrine a judge clay addressed even if this court does decide to exercise it claim of shortly after without more is insufficient to even do the base level drawing of inferences before you can ask a quick clarifying question are you are you raising both implied warranty of merchantability under three  was not sufficiently played and that's why this case is a good example of what is and what is not sufficiently play it and the the lack of specificity that the district court discussed is a good example of why would be an injustice to affirm an opinion grounded in a lack of specificity when police court my name is paul crow from nashville i'm joined here this morning by mr jeffrey patterson my co counsel from dallas we represent together the defendant and helli navistar of like to start i think by talking up talking about picking up the notice issue raised by judge murphy and you judge clay touch briefly on this amendment rule fifty nine question about which there was some questions and then talk about i think that out of ohio and michigan mostly and the court said all the states of adopted to six or seven without alteration as has to see and we presume that the states will follow the plain text and this is what the plain text requires is notice not just  fact of the defect but of the claim of breach and so in these cases we had the exact same thing we have here we had somebody purchased goods the goods didn't work very well allegedly and the purchaser called the seller and said these things need to be fixed they don't work let's let's get these things fixed and they're repair efforts and they were parts parts purchased and there was this ongoing problem with with performance and then the purchaser just up and sued without ever saying we think that not only do these of these things non conforming notice when reasonable time that that time period is shorter than the time for revoking acceptance so i think it only stands to reason that if you have to invoke in connection with a u c c suit the notice of the breach has to come before that it has to be a preset notice and here you'll notice that in mr ganns list of eight properly pled probably pleaded fact in the complaint there is no i notice of breach because it's not fair and the statute says the seller must notify the purchaser must notify the seller of breach or be barred from any remedy so that's what the court case the purchaser there were multiple sort of multiple defects and defects in multiple batches of product and with respect one of them the purchaser threaten to sue the seller and that was good notice because you're basically alleging a breach and and the reason that that is and that's enough for you the plaintiff in his brief says you don't have to go into the dealership and quote legal theories and that's true and you know there's this threat to sue this allegation that there's actually a breach not just a nonconformity that that's enough and if you look at the eastern airlines versus mcdonnell douglas case a th circuit case out of one hundred and seventy six that was relied upon throughout this line of cases the court has decided eastern airlines does a detailed discussion of this comment for section six or seven which  the plaintiffs sort of relies on the st sentence he says well it just has to be troublesome if you read the comment in its entirety the comment as a whole doesn't bear the characterization the plaintiff is putting on it that really no you some of the cases were requiring highly technical preceding notices not just allegation of breach but you have to put a lot of what used the right form of words and if you don't put one theory of why enough but here goes no allegation that there's just allegation of notice of the defects and the reason that it's especially not adequate notice is an element of the curry that needs to be created or is that an affirmative defense i notice your honor would be i believe several of these cases in the courts line are motions to dismiss i believe smith might have been a motion to dismiss so there has been any suggestion in the case in this case that that's an affirmative defense and not something that has to be in the complaint the plaintiff simply says you have it not to do it or that what he alleged ones adequate then that that the and other reason why in this case the notice that effects really can't be sufficient is because of the service contract the complaint says that the plaintiff purchased this twenty four month service contract and then there's not really a lot else said about it but he was bringing the truck in for these repairs pursuant to the service contract and so if i can buy a used truck and then bring it in and take advantage of the service contract i buy which is something that it's good for sellers to offer the customer service contract interpretively a trojan horse that deprives a seller of the protections of the precinct notice required by section six or seven so that's why we think of an additional reason why  notice it's alleged in this complaint isn't adequate strange you touched briefly on this issue about the a minute to the complaint and why it didn't why there wasn't one and i won't belabor this point but the court has h about the defective goods and one about defective services and he admitted that the defective goods claim was bad and in his response to the motion to dismiss said that we'd like to amend the defective services the warrant that good is used for the ordinary course it strikes me it's a plausible inference from the complaint that if you need a complete engine overhaul within three months of purchasing a truck since the truck is designed to drive that the complete engine overhaul is an adequate allegation that the truck was defective even at the time of purchase i mean you could say there's other plausible theories such as you just had a really bad truck which nearly allegations of defects are writing serious effects arising subsequent to the purchase were that was a sufficient basis for inferring the existence of the d you know a one million miles for something you should think that it would have the ordinary truck of that that capabilities might be thinking of breaking down but don't don't trust of the stored there on the road quite a bit it was only one hundred and forty one thousand miles alleged with particularity particularly it's one that's well pleaded the engine breakdown of than three months and that's a serious serious repair but there's nothing in the complaint that tells us what to expect from these kinds of trucks so if the complaint had said about the truck it needed engine repair repair and three months and that's not normal that's not unusual then i think you have a complaint maybe that's a good claim but here we just context it allows you to say whether the condition of the truck was a true defect or that it was simply wear and tear then all the court can do is speculate on whether or not after the purchase could be wearing that might not be your honor but it depends i guess it depend upon what exactly it was that put the truck out of service and that's not alleged and we think that argument interpretation has been waived because so i can start with the issue of notice your owners the there is one tennessee case that addresses notice and that's the audio visual art of three vs tanzer case that cited i believe in both in both parties briefs and that case quotes that the purpose of the section regarding notice is quote to defeat bad faith claims on the buyers part and to protect sellers against non curable dubious stale and stale claims as to accept it goods that's not the case that happened here these the defendant in the allegations had a chance to cure these had a chance to cure these defects that were alleged and if the plaintiff had put in his complaint that the defendant had a chance to cure or that the defendant received adequate notice the defense would have stated that that was merely conclusory and that would've been the argument in response to that if it had done that so it's a catch twenty two agree with opposing counsel that notices condition preceding affirmative defense or just bottom line do you agree with counsel that notice needed to be pleaded in the complaint not pleaded because of the standard that is faced with the court at this procedural posture it can be drawn as an inference i do not agree you think that we have to make the inference or do you think that it should be an affirmative defense or kind of what is the do you have any cases on that point not directly in tennessee cases judge moore for you but i would say that the inference must be made because it is in the statute it is that there is the t c a provision that says that notice must be brought but it's very broad and i believe that the liberal and broad standard with notice combined with the procedural posher of this not necessarily again based on the facts of this case this case it's a seven page complaint and the inference at issue i believe judge strength you're talking about is the three day difference in the dates and because this is such a small record and because this court is reviewing it didn't know that even if the forfeiture doctrine did apply that exception about a miscarriage of justice on a an opinion that's grounded in a lack of specificity by only citing to three paragraphs that exception would apply even if the