### IN THE CO URT OF APPEALS OF TE NNE SS EE AT NASHVILL E Mar ch 26 , 20 09 Ses si on

WI LLI AM ALLGO OD a nd ROSE ALLGO OD

v. GATE WAY HEAL TH SYS TEMS d/b /a GATEW AY MEDICAL CENT ER

an d DR. CHRIST OPHE R HOFFMAN

Appeal f rom the Circ uit Court for Montgom ery C ounty No. MC- CC-C V-M A-06-391 R oss H. Hicks , Judge

No. M2008- 01779-COA-R 3-CV - F iled Septem ber 22, 2009

This is an appea l from a g rant of summary judgme nt. The plaintiff patient filed a lawsuit ag ainst the defe ndant phy sician alleg ing medical neg lige nce. The patient attempted personal service on the phy sician by leaving the summons and the complaint at the rec eption desk of the hospital at which th e phy sician prac ticed. Eventually

, the summons and the complaint wer e delivere d to the p h y s ic ia n

. The summons stated that service would be made by the commissioner of insurance or the U.S. mail. I n his answe r to the complaint, the phy sician asser ted insufficienc y of service of proce ss, and stated
t h at the summons indicated that service was made by the commissioner of insurance throug h t h e U.S. ma il. No new proce ss w as issued. After passag e of time, the limit ations period for the claim
aga inst the phy sician elapsed. The phy sician t hen filed a mot ion for summ ary judgme nt, alleg ing that the attempt at per sonal service was insufficient beca use no one a t the hospital was authorized
to acc ept service of proce ss on his behalf

, serv i ce wa s not re- issued so as to toll the statute of limit ations, and as a result, the patient’s claims wer e time-barr ed. The trial court g rante d summary judgme nt in favor of the phy sician. The pati en t ap p ea l s , arg uing that the phy sician waived the defe nse of insufficienc y of service of proce ss beca use his answe r did not include the fac ts supporting the defe nse, as require d by Rule 8.03 of the Tenne ssee Rules of Civil Procedur e. We reve rse, finding that the def

endant phy sician fa iled to comply with Rule 8.03, thereby

waiving the def

ense.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Reve rsed and Rem anded

H O L L Y M. K I R B Y , J
., delivere d the opin i o n of the Court, in which D A V I D R. F A R M E R , J
., and J

. S T E V E N S T A F F O R D , J ., joined.

Debr a A. Wall, Clarksville, Tenne ssee, for the Plaintiffs/Appellants Wil liam Al l go od and Rose AllgoodJ ohn Eskew, Suz anne M. Pearson, Dan L

. Nolan, and J ennife r A. Dee n, Clarksville, Tenne ssee, for

the Def endant/Appe llee Dr . Christopher Hoff man

OP INION

F A C T S A N D P R O C E D U R A L H I S T O R Y

On Februar

y 2, 2006, Plaintiff/Appellant Wil liam Allgood suffe red a fall at Def end an t Gatew ay Medical C en t er (“G atewa y ”) while under the car e of Def endant/Appe llee Christopher Hoffma n, M.D. (“D r. Hoffma

n”). At the time, D r. Hoffma n was a hospitalist with staff privileg es at Gatew ay

. He was not an employ ee of Gatew ay ; rathe r, he was employ ed b y E agl e Hospital Phy sicians.

On September 5, 2006, Wil liam A llgood and his wife Rose Allgood (“the Allgoods” ) filed this medical neg lige nce lawsuit ag ainst Gatew ay and Dr. Hoffma n fo r i n j u ri es that Mr. Allgood sustained as a result of the fall. A summons was issued for both Gatew ay and Dr. Hoffma n on September 6, 2006.

Gatew ay was serve d b y E rn ie Rice, a private proce ss serve r, on October 14, 2006. On 1 October 23, 2006, the summons and complaint for Dr

. Hoffma n was rece ived by L inda W oodruff (“Ms. Woodruff”)

, who was e mploy ed by Eag le Hospital Phy sicians as the hospitalist coor dinator

s t at i o n ed at Gatew ay

. Acc ording to Ms. Woodruff’s aff idavit, she rec eived the complaint and

summons from a volunteer or hospital employ ee r ece ptionist in an open e nvelope with a “post-it”
note stating that the contents wer e for one of the Eag le Hospital phy sicians. Ms. Woodruff testified in the aff idavit that she did not know when the paper s wer e delivere d, nor did she know how they

wer e delivere d to Gatew ay

. She said that she g ave the summons and complaint to Dr. Hoffma n. The

summons included three lines that could be marke d to indicate the method of service

. The line that

was marke d stated that serv i ce wo uld be made by the “COMMI SSI ONER OF I NSURANCE OR OTHER (SPECI FY) ,” and on the line next to “(SPECI FY) ,” the words “U.S. Mail” wer e handwr itten.

On November 27, 2006, Dr. Hoffma n filed his answe r to the Allgoods’ complaint, deny ing liability

. The answe r asser ted the aff

irmative defe nse of compar ative fault and a lso asked the tria l
court “pursua

nt to Tenne ssee Rule of Civil Procedur e 12.02(5 ) t o dismiss the complaint for insuffi ciency of service of proce ss on g rounds t hat t he return certify ing service of process on [Dr. Hoffma n] shows t hat he wa s serve d by the commissioner of insura nce thr oug h the U.S. mail.”

The return of service was filed on Dec ember 7, 2006. The return stated in pertinent part: “I Ernie Rice SERVED T HIS S UM MONS AND COMPL AI NT/PETI TI ON ON Gatew ay Medica l Sy st ems I N THE FOL L OWI

NG MANNER: By delivery to above at 11:40 a.m. in Clarksville,

S e r v i c e o n G a t e w a y i s n o t a t i s s u e

. 1

-2-Montgome ry Co., TN.” Discover y ensu ed

, and no other attempt at service on Dr. Hoffma n was made.

On J uly 25, 2007, Dr. Hoffma n responde d to the Allgoods’ first set of interrog atories. One of the interrog atories asked Dr. Hoffma n to state the fac ts supporting his aff irmative defe nses. Dr. Hoffma n’s response included the fac ts underly ing the aff

irmative defe nse of compar ative fault, but included no fa cts rela

ting to insuffic iency

of ser vice of proce ss.

On M arc h 14, 2008, Dr. Hoffman filed a mot ion for summ ar y j u d gm en t. As g rounds, t he
summary judgme nt motion stated that the Allgoods’ claims wer e barr ed by the applicable statute of limit ations beca

use proper servi ce o f p roce ss was never made on Dr. Hoffma n. I n his aff

idavit submitt ed in support of the motion for summary judgme nt , Dr

. Hoffma n testified that he was not
persona lly serve d with the summons and complaint; rathe r, he was g iven an open envelope with the

summons and complaint by Ms. Woodruff, whose a ffidavit st ated that she receive d the complaint and summons from an unnamed hospital volunteer or employ ee. Dr. Hoffma n stated in his aff

idavit that Gatew ay was not authorized to acc ept service of proce s s o n h i s behalf and that he did not appoint any

hospital employ ee or

volunteer to a cce pt service of proc ess for him.

The summary judgme nt motion noted that, althoug h on its fac e the summons stated that he would be serve d throug h the commissioner of insurance or the U.S. mail, there was no provision allowing for Dr. Hoffma

n to be serve d via the commissioner of insurance and the rec ord contained

no indication that proce ss was issued for service throug h the commissioner of insurance or the U.S. mail. Dr. Hoffma

n arg ued that the Allgoods’ attempt at service was not eff ective under either Rules 4.04(1) or 4.04(5) of the Tenne ssee Rules of Civil Procedur e. Unde r Rule 4.04(1), D r. Hoff man 2 3 contende d, beca

use there was no attempt to evade service

, service must be made b y p ersonally

R u l e 4

. 0 4 ( 1 ) p r o v i d e s t h a t s e r v i c e s h a l l b e m a d e a s f o l l o w s : 2

U p o n a n i n d i v i d u a l o t h e r t h a n a n u n m a r r i e d i n f a n t o r a n i n c o m p e t e n t p e r s o n , b y d e l i v e r i n g a c o p y o f

t h e s u m m o n s a n d o f t h e c o m p l a i n t t o t h e i n d i v i d u a l p e r s o n a l l y , o r i f h e o r s h e e v a d e s o r a t t e m p t s t o

e v a d e s e r v i c e , b y l e a v i n g c o p i e s t h e r e o f a t t h e i n d i v i d u a l ’ s d w e l l i n g h o u s e o r u s u a l p l a c e o f a b o d e

w i t h s o m e p e r s o n o f s u i t a b l e a g e a n d d i s c r e t i o n t h e n r e s i d i n g t h e r e i n , w h o s e n a m e s h a l l a p p e a r o n t h e
p r o o f o f s e r v i c e , o r b y d e l i v e r i n g t h e c o p i e s t o a n a g e n t a u t h o r i z e d b y a p p o i n t m e n t o r b y l a w t o

r e c e i v e s e r v i c e o n b e h a l f o f t h e i n d i v i d u a l s e r v e d

.

T e n n

. R

. C i v

. P

. 4

. 0 4 ( 1 )

.

R u l e 4

. 0 4 ( 5 ) p r o v i d e s t h a t s e r v i c e s h a l l b e m a d e a s f o l l o w s : 3

U p o n a n o n r e s i d e n t i n d i v i d u a l w h o t r a n s a c t s b u s i n e s s t h r o u g h a n o f f i c e o r a g e n c y i n t h i s s t a t e , o r a

r e s i d e n t i n d i v i d u a l w h o t r a n s a c t s b u s i n e s s t h r o u g h a n o f f i c e o r a g e n c y i n a c o u n t y o t h e r t h a n t h e

c o u n t y i n w h i c h t h e r e s i d e n t i n d i v i d u a l r e s i d e s , i n a n y a c t i o n g r o w i n g o u t o f o r c o n n e c t e d w i t h t h e b u s i n e s s o f t h a t o f

f i c e o r a g e n c y , b y d e l i v e r i n g a c o p y o f t h e s u m m o n s a n d o f t h e c o m p l a i n t t o t h e
p e r s o n i n c h a r g e o f t h e o f f i c e o r a g e n c y

.

T e n n

. R

. C i v

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. 0 4 ( 5 )

.

-3-serving him or his ag ent. Howeve r, Dr. Hoffma n stated, he was never persona lly serve d and he had

n o t appointed an ag ent to acc ept service on his behalf

. Under Rule 4.04(5), even as s u m i n g t h at service as to Dr. Hof

fman would ha

ve bee n eff

ective ha d it been made on Ms. Woodruff, service 4

was in fac t not eff

ective beca

use Ms. Woodruff was not persona lly serve d. There fore

, the attempted service by delivering the s ummons and complaint to an unnamed Gate way volunteer or employ ee

was ineffe ctive under any provision of Rule 4.04. Acc ording ly

, Dr. Hoffma n maintained that, under Rule 3, beca

use he was not serve d within ninety day s of the September 6, 2006 issuance of proce ss, 5 and the Allgoods did not have proce ss re- issued within a y ear , the commence ment of the action did not toll t he statute of limitations and the Allg oods’ claims we re ba rre d.

I n response to Dr. Hoff

man’s motion for summary judgme nt, the Allgoods a rg ued that Dr

. Ho ff m an waived the defe nse of insufficienc y of service of proce ss beca use he failed to state the fac tual basis s u p p o rting the defe nse as require d by Rule 8.03. Although Dr. Hoffma n’s answe r included a fac tual basis for the de fense

, the statement in his answe r was inacc urate in tha t it stated that service was made by the commissioner of insurance throug h the U.S. mail. The answe r did not
state t hat Dr. Hoffma

n had not g iven any one at Gatew ay authority to acc ept s ervic e of proc es s on his behalf

. The Allgoods also arg ued that Dr. H o ff m an wa s estopped from asser ting a defe nse of insufficienc y of service of proce ss beca use he participa ted in disc o v er y and failed to include the defe nse of insufficienc y of service of proce ss in his response to the Allgoods’ interrog atory seeking the fa ctual basis for

his affirma tive defe nses.

A hear ing on Dr. Hoffma

n’s motion for summary judgme nt was held on May 23, 2008, and the trial court’s ruling was issued on May 30, 2008. The trial court found that the attempted service

on Dr. Hoffma

n was insufficient beca

use the Allgoods serve d neither he nor an ag ent authorized to

acc ept service of proce ss for him, and also failed to re- issue proce ss in time to prese rve their cause of action. The trial court also reje cted the Allgoods’ arg ument that Dr. Hoffma n waived the defe nse of insufficienc y of service of proce ss by misstating the fac tual basis for the defe nse in his answe r.

T h i s a s s u m p t i o n w a s b e c a u s e D r

. H o f f m a n l i v e d i n W i l l i a m s o n C o u n t y a n d w o r k e d i n M o n t g o m e r y C o u n t y

. 4

M s

. W o o d r u f

f w a s t h e h o s p i t a l i s t c o o r d i n a t o r a t G a t e w a y f o r D r

. H o f

f m a n ’ s e m p l o y e r , E a g l e H o s p i t a l P h y s i c i a n s

.

R u l e 3 p r o v i d e s a s f

o l l o w s : 5

A l l c i v i l a c t i o n s a r e c o m m e n c e d b y f i l i n g a c o m p l a i n t w i t h t h e c l e r k o f t h e c o u r t

. A n a c t i o n i s

c o m m e n c e d w i t h i n t h e m e a n i n g o f a n y s t a t u t e o f l i m i t a t i o n s u p o n s u c h f i l i n g o f a c o m p l a i n t , w h e t h e r
p r o c e s s b e i s s u e d o r n o t i s s u e d a n d w h e t h e r p r o c e s s b e r e t u r n e d s e r v e d o r u n s e r v e d

. I f p r o c e s s

r e m a i n s u n i s s u e d f

o r 9 0 d a y s o r i s n o t s e r v e d w i t h i n 9 0 d a y s f r o m i s s u a n c e , r e g a r d l e s s o f t h e r e a s o n , t h e p l a i n t i f

f c a n n o t r e l y u p o n t h e o r i g i n a l c o m m e n c e m e n t t o t o l l t h e r u n n i n g o f a s t a t u t e o f l i m i t a t i o n s

u n l e s s t h e p l a i n t i f

f c o n t i n u e s t h e a c t i o n b y o b t a i n i n g i s s u a n c e o f n e w p r o c e s s w i t h i n o n e y e a r f r o m i s s u a n c e o f t h e p r e v i o u s p r o c e s s o r , i f n o p r o c e s s i s i s s u e d

, w i t h i n o n e y e a r o f t h e f i l i n g o f t h e

c o m p l a i n t

.

T e n n

. R

. C i v

. P

. 3

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-4-At the time Dr. Hoffma n filed his answe r, he knew that there wa s a d eficiency in the service of
proce ss, in that it was not made by the commissioner of insurance or throug h the mail, as stated on the summons. Howeve r, at that time, Dr. Hoffma n was not awa

re of true defic iencies in the service of proce ss beca

use the return of service was not filed until Dec ember 2006, afte r Dr. Hoffma n filed his answe r. The return, of course , sta t ed that persona l service was attempted by delivering the

summo n s an d co m p laint to an unnamed person at Gatew ay

. The trial court found that, “[a]s the 6 result of [Dr. Hoffma

n’s] answe r, [t he Allgoods wer e] on sufficie nt notice that [Dr. H offman] was contending that there was a problem wit h service of process and [were] awa re of the factual basis and g rounds in support of the Motion to Dismiss that wer e within [Dr. Hoffma n’s] knowledg e.” The trial court emphasized that the Al l go o d s we re awa re that the return of service was “blatantly defe ctive” in that it indicated that service was made on Gatew ay , but nevert h el es s re l ied on the orig inal service “and did not cur e the de fec ts in ser vice by reissuing proce ss.” The tria l court also reje cted the Allgoods’ arg ument that Dr. Hoffma n should be estopped from asser ting insufficienc y of service of proce ss beca use h e p articipated in discovery without stating the fac tual basis for his defe nse. The Allgoods had asser ted to the trial court that, by waiting until afte r the statute of limit ations had run, Dr. Hoffma n soug ht to “sandba g ” the Plaintiffs. The trial court found that it was incumbent upon the Plaintiffs to reissue proce ss to prese rve their cause of action, but they failed to do so.

On J uly 11, 2008, the trial co u rt en t er ed an order

, incorporating the finding s made in its memorandum opinion, g ranting Dr. Hoffma n’s motion for s u m mary judgme nt, and cer tify ing the judgme nt as final under

Rule 54.02. The Allg oods now appe al.

I S S U E S O N A P P E A L A N D S T A N D A R D O F R E V I E W

On appea l, the Allgoods raise two issues for our revie w. First, whether Dr. Hoffma n waived the defe nse of insufficienc y of service of proce ss, such that summary judgme nt should not have been
g rante d. Second, whether Dr. Ho ff m an is estopped from asser ting the defe nse based on his participa tion in dis cover

y

.

Be cause only questi o n s o f law are involved, we revie w a trial court’s g rant of summary judgme nt de novo with no presumption of corr ectne ss. Martin v. Norfolk S. Ry. Co.
, 271 S.W .3d 7 6
, 8 4 (T en n. 2008) (citing Blair v. W. Town Mall
, 130 S.W .3d 761, 763 (Tenn. 2004)). I n revie wing a trial court’s g rant of summary judgme nt, the appellate court is to deter mine whether the require ments of Tenne ssee Rule of Civil Procedur e 56 have been me t. Staples v

. CBL & Assocs., Inc.
, 15 S.W .3d 83, 88 (Tenn. 2000) (citations om itted). Summary judgme nt is appropriate when “the pleading s, depositions, answe rs to interrog atories, an d admi ssions on file, toge ther with the aff idavits, if any , show that there is no g enuine issue as to any materia l fac t and that the moving party is entitled to a judgme nt as a matter of law.” Tenn. R. Civ. P. 56.04.

T h e t r i a l c o u r t n o t e d t h a t t h e p r o c e s s s e r v e r , E r n i e R i c e , c o u l d n o t r e m e m b e r h o w h e s e r v e d p r o c e s s

. I t f o u n d 6

t h a t R i c e a t t e m p t e d s e r v i c e b y d e l i v e r i n g t h e s u m m o n s a n d c o m p l a i n t t o s o m e o n e a t G a t e w a y

. ( V o l

. I I I a t 4 4 2

. ) T h i s f i n d i n g i s n o t d i s p u t e d o n a p p e a l

.

-5-A N A L Y S I S

We first add re s s the Allgoods’ arg ument that Dr. Hoffma n waived the defe nse of insufficienc y of service of proce ss. The Allgoods insist that Dr. Hoffma n’s answe r did not comply with Rule 8.03’s require ment that a party “set forth aff irmatively fac ts in short and plain terms relied
upon to constitute” that party ’s aff irmative defe n s es

. T en n

. R. Civ. P. 8.03. Although Dr. 7 Hoffma n’s answe r stated that he was challeng ing servic e of proce ss “on g rounds that the return

cer tify ing service of proce ss on [Dr. Hoffma n] shows that he was serve d by th e commissioner of insurance throug h the U.S. mail,” the Allgoods alleg e that it does not comply with Rule 8.03 beca use it misstates the fac tual basis for the defe nse, and does not state that Dr. Hoffma n is challeng ing the attempted persona l service on the basis that no one at Gatew ay was authorized to a cce pt se rvice of
proce ss on his behalf

. I n support of this arg ument, the Allgoods cite Barker v. Heekin Can Co.
, 804 S.W .2d 442 (Tenn. 1991)

.

I n Barker , the plaintiff initiated a worke r’s compensation action aga inst her e mploy er, the Hee kin Can Company

, for an injury alleg edly sustained during the cour se of he r employ ment. Id.
at 442. The plaintiff’s first summons was returne d un-executed, with the following notation by the
proce ss serve r: “no longer i n b u s i n ess here ; sold out.” Id. Be tween the time of the plaintiff’s purported injury and the commence ment of h er action, Hee kin Can sold its Memphis plant to an entity known as Peache r Schwank Plastics. Id. at 443. An alias summons was then issued, direc ted
to “He ekin Can Company
, a/k/a Pearc her [si c] and Schwank Plastics.” I d

. at 4 4 2

. T he return of service had the following notation: “ser ved proce ss

. . . by delivering

. . . a copy of the summons and

a copy of the complaint to

. . . Hee kin Can Company
, a/k/a Pearc her [si c] and Schwank Plastics, by serving : Harold Townse nd, Gen. Mg r.” Id.

Hee kin Can fi l ed an answe r and a motion to dismiss in its answe r, stating the following
g rounds: “(a ) That this Court lacks jurisdiction over the person of this corpor ate defe ndant; (b) That there has been an insufficienc y of proce ss in this cause ; (c) That there has been an insufficienc y of service of proce ss in this cause .” Id. at 443. The motion included no fac tual alleg ations to support these g rounds. Id. Severa l y ear s later, the defe ndant filed a motion for summary judgme nt, alleg ing that Hee kin Can and Peac her Schw ank Plastics wer e sepa rate entities, with their only rela tionship being that of buy er and seller of th e M em p h i s plant, and there fore

, the service made on Peache r Schwank Plastics was insufficient as to Hee kin Can. Id. The trial court g rante d summary judgme nt in favor of

Hee kin Can. Id. The plaintiff a ppeale d.

The Te nnessee Supreme Court re verse d the decision of the trial court, holding that Hee kin Can waived the defe nse of insufficienc y of service of proce ss by failing to include “in its motion to dismiss a rec itation of those fac ts, ‘in short an d p l ai n t erms,’ upon which it was rely ing for

T h e A l l g o o d s a l s o n o t e t h a t D r

. H o f f m a n h a d t h e o p p o r t u n i t y t o i n c l u d e t h e c o r r e c t f a c t u a l b a s i s f

o r t h i s 7

d e f e n s e i n h i s r e s p o n s e t o t h e i r i n t e r r o g a t o r y , b u t f a i l e d t o d o s o

.

-6-dismiss al” a s require d by Rule 8.03. Id. at 444. I t found that the def endant should have stated in 8 the motion to dismiss that Hee kin Can and Peache r Schwank Plastics wer e separ ate entities, that Mr. Townsend did not have authority to acc ept service of proce ss for Hee kin Can, and that Hee kin Can no longe r did business in Tennesse e. Id. The Court explained:

The reason for

such a r ule is obvious. As noted in Goss [ v. Hutchin s , 751 S.W .2d 821 (Tenn. 1988) ], t he filing of a “ specific neg ative aver ment will likely result in a prompt cura tive amendment by plaintiff,” id. at 826, thus preve nting the dismiss al of an othe rwise mer itorious claim on purely technica l gr ounds.

Barker
, 804 S.W .2d at 444. The Barker court observe d that defe ndant Hee kin Can “wa ited over two
y ear s to plead fa cts known to it . . . from the very beg inning.” Id. I t commented that “[t]he Rul es of Civil Procedur e are not intende d as a trap for the unwar y , but a s a means of ‘sec ur[ing] the just, speedy and inexpensive de termination of ever y action.’ ” Id. (quoting Tenn. R. Civ. P. 1). On this basi s , i t held that the defe ndant waived the defe nse of insufficienc y of service of proce ss and

reve rsed the g rant of summar y judgme nt. See id. at 444-45.

I n response to the Allgoods’ citation of Barker
, Dr. Hoffma n distinguishes Barker from the fac ts in this case

. I n Barker
, Dr. Hoffma n notes, the defe ndant did not include any fac tual basis to support the defe nse of insufficienc y of service of proce ss, despite knowing the sup p o rting fac ts “fr om the very beg inning.” See id. at 444. I n the case at bar , Dr. Hof fman arg ues, he provided all of t he information reg arding the deficiencie s in the s ervic e of proce ss available to him at the t ime that he filed his answe r. He insists that he cannot be expected to include fac ts in his answe r that

wer e unknown to him when it was filed. Dr. Hoffma n asser ts that he would have included differ ent fac ts in his answe r had he known them at the time, but arg ues that the fac ts that wer e included in his

answe r provided the Allgoods with the same notice of a possible defe ct in the service of proce ss that they would have rec eived had he pled the ot her facts. There fore

, he arg ues t hat he complied wit h the re quirements of Rule 8.03. 9

I nsufficie ncy of service of proce ss is an aff irmative defe nse that must be pres en t ed i n the defe ndant’s answe r or in a pre- answe r motion. Tenn. R

. Civ. P. 12.02(5); see Eaton
, 2008 WL 4963512, at *3. Although Rule 12 does not contain a specific ity require ment, Rule 8 “cle arly does.” Barker
, 804 S.W .2d at 444. Rule 8.03 require s that a party “set forth aff irmatively fac ts in short and

A t t h e t i m e o f

t h e B a r k e r d e c i s i o n , R u l e 8

. 0 3 r e q u i r e d a p a r t y t o “ s e t f o r t h a f f i r m a t i v e l y f

a c t s

. . . r e l i e d u p o n 8

t o c o n s t i t u t e

. . . a n a v o i d a n c e o r a f f i r m a t i v e d e f

e n s e

. ” B a r k e r , 8 0 4 S

. W

. 2 d a t 4 4 4 ( e m p h a s i s a d d e d )

. S i n c e t h e n , R u l e 8

. 0 3 h a s b e e n a m e n d e d t o r e m o v e t h e t e r m “ a v o i d a n c e

. ” A l t h o u g h t h e B a r k e r c a s e r e f e r s t o i n s u f

f i c i e n c y o f

s e r v i c e o f

p r o c e s s a s a n “ a v o i d a n c e , ” i d

. , i t i s a l s o a n a f f i r m a t i v e d e f

e n s e

. S e e E a t o n v . P o r t e r a , N o

. W 2 0 0 7

- 0 2 7 2 0

- C O A

- R 3

- C V
, 2 0 0 8 W L 4 9 6 3 5 1 2
, a t * 3 ( T e n n

. C t

. A p p

. N o v

. 2 1
, 2 0 0 8 )

. T h u s , r e m o v a l o f t h e t e r m “ a v o i d a n c e ” f r o m R u l e 8

. 0 3 d o e s

n o t a f f e c t o u r a n a l y s i s

.

D r

. H o f f m a n a l s o n o t e s t h a t p a r a g r a p h t h r e e o f h i s a n s w e r d e n i e d a n e m p l o y m e n t o r a g e n c y r e l a t i o n s h i p w i t h 9

G a t e w a y , a n d s e e m s t o s u g g e s t t h a t t h i s a v e r m e n t s h o u l d h a v e p u t t h e A l l g o o d s o n n o t i c e t h a t t h e a t t e m p t e d s e r v i c e o f

p r o c e s s w a s i n e f

f e c t i v e

. T h i s a r g u m e n t i s w i t h o u t m e r i t

.

-7-plain terms relied upon to constitute

. . . an aff irmative defe nse.” Tenn. R. Civ. P. 8.03. Fa ilure to comply with Rule 8.03 will result in a waiver of the def ense. Barker , 804 S.W .2d at 444.

L ike the defe ndant in Barker
, Dr. Hoffma n soug ht dismiss al of the complaint in his answe r,

asser ting the defe nse of insufficienc y of service of proce ss. Unlike the defe ndant i n B arker
, Dr. Hoffma n included in his answer

fac ts that were known to him at the time.

Dr. Hoffma

n arg ues that he satisfied Rule 8.03 beca use the fac ts in his answe r provided the Allgoods with the same notice that they would have recei v ed had he pled the fac ts that he later discovere d, namely “that a possible defe ct in the manner of service of proce ss exis ts.” We
respe ctfully disag ree

. This ty pe of g ener al notice was clea rly found inadequa te by the Supreme Court in Barker

. I f simply putting the plaintiff on notice that there may be a problem with se rvice of proce ss wer e enoug h to satisfy Rule 8.03, then the Barker Court would n o t h av e fo u n d the defe nse to have been waived, beca use the defe ndant in Barker stated in its answe r “[t] hat there has been an insufficienc y of service of proce ss in this cause .” Id. at 443. Barker clea rly holds that mere notice of a possi ble problem is ins u ff i ci en t to satisfy Rule 8.03. Rather, Rul e 8.03 require s that a defe ndant state the f

acts that support the de fense

.

Dr. Hoffma

n rig htly arg ues that he cannot be expected to include fac ts in his answe r that wer e unknown to him. Howeve r, when the re turn of ser vice wa s filed, Dr. H offman be came awa re tha t the fac ts alleg ed in his answe r to support his defe nse wer e not acc urate

. As in Barker
, this fac t was “pec uliarly within the knowledg e of” Dr. Hoffma n. Id. at 444. Despite this, there was no attempt by Dr. Hoffman to amend his answer or otherwise corre ct t he mi simpression cre ated. I ndeed, the misstated fac ts in Dr. Hoffma n’s answe r wer e, from the Plaintiffs’ perspe ctive, worse tha n having stated no fac ts at all; when considere d with Dr. Hoffma n’s failure to addre ss insufficienc y of service of proce ss in response to the Allgoods’ interrog atory , this could have led the Plaintiffs to conclude that the orig inal service of proc ess on Dr. H offman w as in fac t effe ctive.

The trial court corr ectly observe d that the Allgoods could easily have had proce ss re- issued,
to ensure eff

ective service of proce ss and prese rvation of their cause of action. This is cer tainly true. Howeve r, the issue raised to us on appea l does not rela te to the Plaintiffs’ failure to ensure eff ective service of proce ss. I t rela tes only to whether Dr. Hoffma n failed to comply with Rule 8.03 and thus waived the defe nse of insuf fi ci en cy of service of proce ss. Under the fac ts of this case , we must conclude that he did not comply with Rule 8.03, that the defe nse is w aived, and that the trial cour t

err ed in g ranting summary judgme nt in favor o f Dr

. Ho ffman. This holding prete rmits all other issues raised on a

ppeal.

-8-C O N C L U S I O N

The decision of the trial cour t is rever sed and the case is remande d for f urther pr ocee dings

co n s i s tent with this opinion. The costs of this appea l are taxed to the Appellee Dr. Christopher Hoffma n, for whic h execution may issue if nec essar

y

.

___________________________________ HOL L Y M. KI RBY, JUDGE

-9-