affirmative defense in Tennessee

2013As the moving party, Jackson Bowling bears the burden “to prove the affirmative of its defense . . . .” Id.

2011When a defendant files a motion for summary judgment based on an affirmative defense, the defendant must “conclusively establish [the] affirmative defense.” McMahan v. Sevier County, No. E2005-02028-COA-R3-CV, 2007 WL 1946650 , at *2 (Tenn. Ct. App. July 3, 2007) (quoting McCarley, 960 S.W.2d at 588 ).

2012In addition, “courts must view the evidence and all reasonable inferences therefrom in the light most favorable to the non-moving party.” Giggers, 277 S.W.3d at 364 (citing Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997)).

2007See McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998); Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997).

2020Cardiac Anesthesia Servs., PLLC v. Jones, 385 S.W.3d 530, 539 (Tenn. Ct. App. 2012) (quoting Cherry v. Williams, 36 S.W.3d 78, 83 (Tenn. Ct. App. 2000)); see also Sherrill v. Souder, 325 S.W.3d 584, 596 (Tenn. 2010) (citations omitted) (“[T]he failure to comply with a statute of limitations is an affirmative defense. . . .”).

2013Lastly, Ms. Aleo asserts that the doctrine of equitable estoppel should be applied to this case to prevent the running of the statute of limitations because Attorney Weyant “misled her from the outset in 2008 all the way through June 2010, preventing her from recognizing her injury which he promised to ‘fix’ and ‘make it right.’” In Redwing v. Catholic Bishop for Diocese of Memphis our Supreme Court discussed equitable estoppel, stating: In the context of a defense predicated on a statute of limitations, the doctrine of equitable estoppel tolls the running of the statute of limitations when th

2022“Although the State bears the burden of raising the statute of limitations as an affirmative defense, its failure to do so does not necessarily result in a waiver” so long as “‘the opposing party is given fair notice of the defense and an opportunity to rebut it.’” Wilson v. State, 367 S.W.3d 229, 234 (Tenn. 2012) (quoting Sands v. State, 903 S.W.2d 297, 299 (Tenn. 1995)).

2022“Although the State bears the burden of raising the statute of limitations as an affirmative defense, its failure to do so does not necessarily result in a waiver” so long as “‘the opposing party is given fair notice of the defense and an opportunity to rebut it.’” Wilson v. State, 367 S.W.3d 229, 234 (Tenn. 2012) (quoting Sands v. State, 903 S.W.2d 297, 299 (Tenn. 1995)).

2017“Although coram nobis claims are also governed by a one-year statute of limitations, the State bears the burden of raising the bar of the statute of limitations as an affirmative defense.” Harris v. State, 102 S.W.3d 587, 592-93 (Tenn. 2003).

2017“Although coram nobis claims are also governed by a one-year statute of limitations, the State bears the burden of raising the bar of the statute of limitations as an affirmative defense.” Harris v. State, 102 S.W.3d 587, 592-93 (Tenn. 2003).

2025The Tennessee Supreme Court has clarified that “the one- year statutory period is an element of the right to file a post-conviction petition and that it is not an affirmative defense that must be asserted by the State.” State v. Nix, 40 S.W.3d 459, 464 (Tenn. 2001), abrogated on other grounds by Reid ex rel.

2024Our supreme court has recognized that “the one-year statutory period is an element of the right to file a post- conviction petition and that it is not an affirmative defense that must be asserted by the State.” State v. Nix, 40 S.W.3d 459, 464 (Tenn. 2001), abrogated on other grounds by Reid ex rel.

2015As for the second example, the Court stated that ―the moving party could conclusively establish an affirmative defense that defeats the nonmoving party‘s claim, i.e., a defendant would be entitled to summary judgment if he demonstrated that the nonmoving party cannot establish an essential element of his case.‖ Id. (citing Celotex, 477 U.S. at 331 (Brennan, J., dissenting)).

2015As for the second example, the Court'stated that “the moving party could conclusively establish an affirmative defense that defeats the nonmoving partyls claim, i.e., a defendant would be entitled to summary judgment if he demonstrated that the non-moving party cannot establish an essential element of his case.” Id. (citing Celotex, 477 U.S. at 331 , 106 S,Ct. 2548 (Brennan, J., dissenting)).

2019P. 8.03, according to the “most commonly understood definition” of an affirmative defense in a pleading of “[a] matter asserted by defendant which, assuming the complaint to be true, constitutes a defense to it,” see Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 6 (Tenn. 2008), overruled on other grounds by Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235 (Tenn. 2015) (quoting BLACK’S LAW DICTIONARY 60 (6th ed. 1990)).

2019As our Supreme Court further noted in Hannan, “an affirmative defense is ‘a traditional way for the defendant to defeat the plaintiff’s claim by carrying its own burden of proof.’” Hannan, 270 S.W.3d at 7 n.3 (quoting Judy M.

2024A judgment of conviction becomes final “thirty days after its entry in the trial court if no post-trial motions are filed or upon entry of an order disposing of a timely filed, post-trial motion.” Harris v. State, 301 S.W.3d 141, 144 (Tenn. 2010). “[T]he statute of limitations . . . is not an affirmative defense that must be specifically raised by the State in error coram nobis cases; -6- instead, the . . . petition must show on its face that it is timely filed.” Nunley, 552 S.W.3d at 828 .

2024A judgment becomes final “thirty days after its entry in the trial court if no post-trial motions are filed or upon entry of an order disposing of a timely filed, post-trial motion.” Harris v. State, 301 S.W.3d 141, 144 (Tenn. 2010). “[T]he statute of limitations . . . is not an affirmative defense that must be specifically raised by the State in error coram nobis cases; instead, the . . . petition must show on its face that it is timely filed.” Nunley, 552 S.W.3d at 829 .

2012Instead, the moving party must “either affirmatively negate an essential element of the non-moving party's claim or conclusively establish an affirmative defense.” Id. (quoting Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 88 (Tenn. 2000)).

2011Rather, the moving party must “either affirmatively negate an essential element of the non-moving party’s claim or conclusively establish an affirmative defense.” Id. (quoting Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 88 (Tenn. 2000)).

2025Even so, dismissal is an appropriate remedy when “an affirmative defense clearly and unequivocally appears on the face of the complaint.” Anthony v. Tidwell, 560 S.W.2d 908, 909 (Tenn. 1977); see Ezell v. Cockrell, 902 S.W.2d 394, 403 (Tenn. 1995) (affirming dismissal because “[t]he plaintiff’s allegations d[id] not support application of a ‘special-duty’ of care”).

2022See Anthony v. Tidwell, 560 S.W.2d 908, 909 (Tenn. 1977) (explaining that a complaint may be dismissed based on an affirmative defense if the defense “clearly and unequivocally appears on the face of the complaint”).

2025Payne, 493 S.W.3d at 484 ; Mixon, 983 S.W.2d at 670 . “[T]he statute of limitations set forth in [Tennessee Code Annotated s]ection 27-7-103 is not an affirmative defense that must be specifically raised by the State in error coram nobis cases[.]” Nunley, 552 S.W.3d at 828 .

2024A judgment becomes final “thirty days after its entry in the trial court if no post-trial motions are filed or upon entry of an order disposing of a timely filed, post-trial motion.” Harris v. State, 301 S.W.3d 141, 144 (Tenn. 2010). “[T]he statute of limitations . . . is not an affirmative defense that must be specifically raised by the State in error coram nobis cases; instead, the . . . petition must show on its face that it is timely filed.” Nunley, 552 S.W.3d at 829 .

2022The defense of necessity should be charged if supported by the facts produced at trial; however, because it is not an affirmative defense, “the defendant need not prove [necessity] by a preponderance of the evidence.” Davenport, 973 S.W.2d at 287 (citing State v. Culp, 900 S.W.2d 707, 710 (Tenn. Crim.

2020Because duress is a general rather than an affirmative defense, a criminal defendant need not establish the elements of duress by a preponderance of the evidence in order to merit a jury instruction.” State v. Hatcher, 310 S.W.3d 788, 816-17 (Tenn. 2010) (citations omitted) (internal quotation marks omitted); see also Bledsoe, 226 S.W.3d at 355 ; State v. Culp, 900 S.W.2d 707, 709-10 (Tenn. Crim.

2025The plaintiff’s allegations must “show that an affirmative defense exists and that this defense legally defeats the claim for relief.” Jackson v. Smith, 387 S.W.3d 486, 492 (Tenn. 2012).

2025A Rule 12.02(6) motion may “be used as a vehicle to assert an affirmative defense” only when the allegations in the complaint “show that an affirmative defense exists and that this defense legally defeats the claim for relief.” Jackson v. Smith, 387 S.W.3d 486, 491-92 (Tenn. 2012).

2025See Pratcher v. Methodist Healthcare Memphis Hosps., 407 S.W.3d 727, 739 (Tenn. 2013) (recognizing that an affirmative defense is waived “if not timely raised”); Admin.

2024Resp., 535 S.W.3d 481 , 497 n.9 (Tenn. 2017) (quoting Pratcher v. Methodist Healthcare Memphis Hosps., 407 S.W.3d 727, 735 (Tenn. 2013)); Moore Freight Servs., Inc. v. Mize, No. E2021-00590-COA-R9-CV, 2022 WL 325595 , at *4 (Tenn. Ct. App. Feb. 3, 2022) no perm. app. filed (classifying “the doctrine of first material breach of contract” as an affirmative defense).

2023“When defendants move for summary judgment based on an affirmative defense such as the statute of limitations, they must establish the elements of the affirmative defense before the burden shifts to the nonmovant.” Id. (citing Carr v. Borchers, 815 S.W.2d 528, 532 (Tenn. Ct. App. 1991); Campbell v. Grand Trunk Western R.R.

2020See Harlan v. Hardaway, 796 S.W.2d 953, 957 (Tenn. Ct. App. 1990) (“The non- performance of a condition precedent is an affirmative defense[.]”); see also Acute Care Holdings, LLC v. Houston Cty., No. M2018-01534-COA-R3-CV, 2019 WL 2337434 , at *4 (Tenn. Ct. App. June 3, 2019) (citing Carr v. Borchers, 815 S.W.2d 528, 532 (Tenn. Ct. App. 1991)) (placing the burden on the defendant to show the affirmative defense of failure of a condition precedent).

2017"In other words, the plaintiff's own allegations in the complaint must show that an affirmative defense exists and that this defense legally defeats the claim for relief." Id. at 492 (citations omitted).

2012Estate of McElwaney, 75 S.W.3d 383, 404 (Tenn.2002) (quoting Anthony v. Tidwell, 560 S.W.2d 908, 909 (Tenn.1977)). 7 In other words, the plaintiffs own allegations in the complaint must show that an affirmative defense exists and that this defense legally defeats the claim for relief.

2022“Although the State bears the burden of raising the statute of limitations as an affirmative defense, its failure to do so does not necessarily result in a waiver” so long as “‘the opposing party is given fair notice of the defense and an opportunity to rebut it.’” Wilson v. State, 367 S.W.3d 229, 234 (Tenn. 2012) (quoting Sands v. State, 903 S.W.2d 297, 299 (Tenn. 1995)).

2022“Although the State bears the burden of raising the statute of limitations as an affirmative defense, its failure to do so does not necessarily result in a waiver” so long as “‘the opposing party is given fair notice of the defense and an opportunity to rebut it.’” Wilson v. State, 367 S.W.3d 229, 234 (Tenn. 2012) (quoting Sands v. State, 903 S.W.2d 297, 299 (Tenn. 1995)).

2016See also Myers v. State, 185 Tenn. 264 , 206 S.W.2d 30, 32 (Tenn. 1947) (holding that a defendant is entitled to an affirmative instruction on self-defense if raised by the evidence).

2016See also Myers v. State, 185 Tenn. 264 , 206 S.W.2d 30, 32 (Tenn. 1947) (holding that a defendant is entitled to an affirmative instruction on self-defense if raised by the evidence).

2022Cities, 12 S.W.3d 785, 787-88 (Tenn. 2000) (“[F]airness and efficiency require that defendants called upon to answer allegations in negligence be permitted to allege, as an affirmative defense, that a nonparty caused or contributed to the injury or damage for which recovery is sought[.]” (quoting McIntyre v. Balentine, 833 S.W.2d 52, 58 (Tenn. 1992)) (emphasis added). -9- As the nonmoving party, Plaintiff was required in response to Defendant’s motion to “‘do more than simply show that there [was] some metaphysical doubt as to the material facts’” and “demonstrate the existence of specific fac

2020The lesser of the award adjusted for the plaintiff’s fault or the statutory cap amount becomes the amount to apportion among the “multiple defendants . . . found liable.” Of course, even when only one defendant is named, the defendant may “allege, as an affirmative defense, that a nonparty caused or contributed to the injury or damage for which recovery is sought,” and if negligence is proven, the jury may “assign this nonparty the percentage of the total negligence for which he is responsible.” McIntyre, 833 S.W.2d at 58 .

2014“An affirmative defense pleads a matter that is not within the plaintiff’s prima facie case.” George v. Alexander, 931 S.W.2d 517, 527 (Tenn. 1996) (citing 2A James W.

2012On appeal, the Supreme Court was presented with the following issue, “whether a defendant in a negligence case must, pursuant to Rule 8.03 of the Tennessee Rules of Civil Procedure, plead comparative fault as an affirmative defense if the defendant wishes to introduce evidence that a person other than itself caused the plaintiffs injury.” Id. at 518 .

2013Rather, relying on George v. Building Materials Corp. of Am., 44 S.W.3d 481, 487 (Tenn.2001), it has decided that the trial court reached the correct result because Consultants’s delay in asserting this affirmative defense was “undue.” This is a close call.

2013Rather, relying on George v. Building Materials Corp. of Am., 44 S.W.3d 481, 487 (Tenn. 2001), it has decided that the trial court reached the correct result because Consultants’s delay in asserting this affirmative defense was “undue.” This is a close call.

2015P. 56.04). “ ‘Generally speaking, a defendant moving for summary judgment may avail itself of one of two avenues: it may negate an essential element of the nonmoving party’s claim, or it may establish an affirmative defense, such as the statute of limitations, that defeats the claim.’” Doyle v. Town of Oakland, No. W2013-02078-COA-R3-CV, 2014 WL 3734971 , at *2 (Tenn. Ct. App. July 28, 2014) (quoting Allied Sound, Inc. v. Neely, 909 S.W.2d 815, 820 (Tenn. Ct. App. 1995)).

2014“Generally speaking, a defendant moving for summary judgment may avail itself of one of two avenues: it may negate an essential element of the nonmoving party’s claim, or it may establish an affirmative defense, such as the statute of limitations, that defeats the claim.” Allied Sound, Inc. v. Neely, 909 S.W.2d 815, 820 (Tenn. Ct. App. 1995).

2024See Thompson, Breeding, Dunn, Creswell & Sparks v. Bowlin, 765 S.W.2d 743, 744 (Tenn. Ct. App. 1987) (“An affirmative defense is one that wholly or partly avoids the cause of action asserted by the preceding pleading by new allegations that admit part or all of the cause of action, but avoids liability because of a legally sufficient excuse, justification, or other matter negating the alleged breach or wrong.” (quoting LAWRENCE A. PIVNICK, TENNESSEE CIRCUIT COURT PRACTICE § 12:4 (2nd Ed. 1986))).

2015P. 8.03 (―In pleading to a preceding pleading, a party shall set forth affirmative facts in short and plain terms relied upon to constitute . . . fraud[.]‖); Thompson, Breeding, Dunn, Creswell & Sparks v. Bowlin, 765 S.W.2d 743, 744 (Tenn. Ct. App. 1987) (―In his answer to the complaint, [the defendant] failed to raise any affirmative defenses; therefore, he waived them.‖); see also The Bradley Factor, Inc. v. Holmes, 2004 WL 343966 , at *2 (declining to address defendant‘s fraud in the inducement defense to a claim for breach of contract where the defendant failed to raise fraud as an affirma

2024The State has no obligation to “rebut defense proof of insanity with substantial evidence,” and “[t]he statute places the burden of establishing this affirmative defense squarely on the defendant.” Flake, 88 S.W.3d at 554 ; see T.C.A. § 39-11-501(c) (2014).

2016App. Nov. 21, 2014) (citing State v. Flake, 88 S.W.3d 540, 554 (Tenn. 2002)). -16- (a) It is an affirmative defense to prosecution that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature or wrongfulness of the defendant‟s acts.

2010See Blair v. West Town Mall, 130 S.W.3d 761 (Tenn.2004).

2010See Blair v. West Town Mall, 130 S.W.3d 761 (Tenn.2004).