Williamson County v. Twin Lawn Development Co., Inc.

• Decision Date: 20 August 1973
• Citation: 498 S.W.2d 317
• Parties: WILLIAMSON COUNTY, Tennessee, Appellant-Complainant, v. TWIN LAWN DEVELOPMENT COMPANY, INC., et al., Appellee-Defendant-Third-Party-Plaintiff, v. EATHERLY CONSTRUCTION COMPANY, INC., Appellee-Third-Party-Defendant.
• Court: Tennessee Supreme Court

Page 317

498 S.W.2d 317

WILLIAMSON COUNTY, Tennessee, Appellant-Complainant, v. TWIN LAWN DEVELOPMENT COMPANY, INC., et al., Appellee-Defendant-Third-Party-Plaintiff, v. EATHERLY CONSTRUCTION COMPANY, INC., Appellee-Third-Party-Defendant.

Supreme Court of Tennessee.

Aug. 20, 1973.

Henry Denmark Bell, Franklin, for appellant.

John M. Grissim, Tom G. Coleman, Jr., Nashville, for appellees.

OPINION

HUMPHREYS, Justice.

This appeal is concerned with Tennessee Rule of Civil Procedure, 12.01. Williamson County sued Twin Lawn Development Company, Inc. for breach of its obligation to maintain roads in a subdivision in the county, and sued Hartford Accident and Indemnity Company as surety on Twin Lawn's obligation in this regard. Twin Lawn and Hartford answered without availing themselves of the right for a more definite statement under Rule 12.05. Twin Lawn and Hartford then sued Eatherly Construction Company, as a third party defendant, on its obligation to Twin Lawn with respect to these same subdivision roads. Eatherly Construction Company then moved under Rule 12.05 for a more definite statement by third party plaintiff Twin Lawn, and deferred filing an answer. Thereupon, Twin Lawn moved under Rule 12.05 for a more definite statement from Williamson County. The Chancellor held that Williamson County was obliged to make a more definite statement; apparently, on the assumption that Twin Lawn was entitled to such a statement in order that it might respond to Eatherly Construction's motion for a more definite statement against it. After a motion to reconsider had been overruled, Williamson County elected to stand on its complaint as filed. Whereupon the court dismissed the complaint. From this decree, Williamson County has appealed and assigned error.

Williamson County's contention is that Civil Procedure Rule 12.08 expressly provides that a defendant's right to a more definite statement is waived if he makes no motion therefor before filing an answer. The particular part of this rule relied on reads as follows:

'12.08. Waiver of Defenses. A party waives all defenses and objections which he does not present either by motion as hereinbefore provided, or, if he has made no motion, in his answer or reply, . . ..'

Twin Lawn concedes the possibility that its right to a more definite statement was waived when its answer was filed without a motion having been made therefor. Twin Lawn contends, however, that Eatherly Construction's motion for it to furnish a more definite statement reopens the subject so that it has the right to have a more definite statement.

We cannot agree. Rule 12.08 explicitly states that all defenses and objections not presented by prior motion, or included in the answer are waived. There is nothing to suggest that the waiver between the plaintiff and the defendant can be set aside because a third party defendant has moved for a more definite statement from the third party plaintiff. Nor, can we think of any reason why such a motion should have this effect. The impleading of the third party defendant in this case is solely for the convenience of the defendants. The plaintiff, under the pleadings, is in no way interested in tht suit, and should not be held to lose the advantage it has gained under Rule 12.08 because of a motion by the third party defendant against the third party plaintiff.

Eatherly Construction Company in seeking to sustain the Chancellor, which would relieve it, relies on this provision in Rule 14.01:

'Third party defendant may assert against the plaintiff any defenses which the third party plaintiff has to the plaintiff's claim.'

It is rather clear that this provision has no application. Here, the motion of the third party defendant for a more definite statement is directed to the third party plaintiff, and properly so, under a part of Rule 14.01 which reads:

'The person served with a summons and third party complaint, hereinafter called the third party defendant, shall make his defenses to the third party plaintiff's claim as provided in Rule 12 and his counterclaims against the third party plaintiff and crossclaims against any other third party defendants as provided in Rule 13.'

In sum, the ruling is that a third party plaintiff who has waived defenses and objections permitted by Rule 12 cannot, by reason of the third party defendant's motion against him, have the waiver set aside and secure for himself the benefit of a more definite statement as between himself and the plaintiff.

On remand the trial court should consider whether the third party defendant's motion for a more particular statement should be granted against the third party plaintiff. If this motion is granted, it will then be up to the defendant, who originally conceded that he knew enough about the issues involved not to require a more particular statement to respond to such order as the trial court may make.

All of this is not hypertechnical, even though it may seem so. Our reason for holding as we do is our belief that Rule 12.08, Waiver of Defenses, must, as a matter of policy, be upheld. And that a waiver that has not resulted from non-negligent oversight, or nonculpable mistake, or fraud should not be set aside. This policy construction of Rule 12.08 is particularly applicable against setting aside the waiver in this case, because there is no intimation that the waiver was not knowledgeably and purposefully made.

'The doctrine of waiver is a wholesome one, and greatly facilitates the dispatch of business in the Courts, and promotes the prompt and orderly progress of a suit to final decree. If prties were allowed to go back and take advantage of a right to opportunity overlooked, neglected, or deliberately disregarded, no party could take a forward step in a litigation without danger of being compelled to retrace it in order to enable his adversary to make an attack or a defence on a ground long since passed, or to make some motion, or exercise some right or privilege he neglected to make or exercise when the opportunity was duly presented.' 5th Ed. Gibson's Suits in Chancery, Vol. 1, p. 104.

And, where the merits and justice of the case are not to be directly served by a motion to set aside a waiver, but, the motion is made so the moving party can make a technical motion, it goes without saying that the motion should hardly ever he granted.

Williamson County also makes the contention that its complaint contains a plain statement of a claim showing that the pleader is entitled to relief, and that it demands a judgment for that relief. And so it meets the requirements of Rule 8.01. Since this is an issue to which the present posture of the case permits us to respond we shall do so.

All that Rule 8.01 requires of a claim is that it contain 'a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled.' Rule 12.05 provides for Testing a claim's compliance with Rule 8.01 by authorizing a motion for a more definite statement provided the claim is 'so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading,'. The underscored words 'so vague or ambiguous' furnish the standard by which the claim must be tested in the particular regard under consideration.

The requirements of Rule 8.01 differ materially from the requirement with respect to an original bill under § 21--105 T.C.A. That section reads, 'The bill should contain a clear and orderly statement of the facts on which the suit is founded, without prolixity or repetition and conclude with a prayer for the required process and appropriate relief.'

Gibson discusses this Code section and says that 'The test of the...