Henriette M. Fisher v. Chandranita M. Ankton ( 2015 )

IN THE COURT OF APPEALS OF TENNESSEE
AT MEMPHIS
February 25, 2015 Session
HENRIETTE M. FISHER v. CHANDRANITA M. ANKTON
Appeal from the Circuit Court for Shelby County
No. CT00259312 James F. Russell, Judge
No. W2014-00882-COA-R3-CV – Filed May 5, 2015
Plaintiff filed suit against defendant alleging negligence resulting in an automobile accident.
Plaintiff procured issuance of multiple summonses, but did not return the final summons
within ninety days after its issuance. Defendant filed a motion to dismiss asserting
insufficiency of process, insufficiency of service of process, and expiration of the statute of
limitations. The trial court granted defendant‟s motion and concluded that Tennessee Rules
of Civil Procedure 3 and 4.03 required dismissal when a plaintiff failed to file a return of
proof of service within ninety days. Based on this finding, the trial court also concluded that
plaintiff had intentionally delayed service. We reverse in part, vacate in part, and remand.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed in
Part; Vacated in Part; and Remanded
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the Court, in which ARNOLD B.
GOLDIN, J., and BRANDON O. GIBSON, J., joined.
Rachael E. Putnam, Memphis, Tennessee, for the appellant, Henriette M. Fisher.
William M. Jeter, Memphis, Tennessee, for the appellee, Chandranita M. Ankton.
OPINION
Facts
Complaint and Attempts to Serve
On June 13, 2012, Henriette M. Fisher filed a complaint in the Circuit Court of Shelby
County against Chandranita M. Ankton. In her complaint, Ms. Fisher alleged that Ms.
Ankton negligently operated her vehicle, causing it to collide with Ms. Fisher‟s vehicle and
resulting in physical injuries to Ms. Fisher. At the time she filed her complaint, Ms. Fisher
had a summons issued by the clerk (“First Summons”).1 The First Summons was directed to
Ms. Ankton at her alleged place of residence of 2153 West River Trace Drive, Apartment 5,
Memphis, TN 38134. Ms. Fisher retained a private process server, Donald Busby, who
unsuccessfully attempted on five occasions to serve Ms. Ankton with the First Summons.
The parties do not dispute that service of the First Summons was unsuccessful.
On October 1, 2012, Ms. Fisher obtained issuance of a second summons (“Second
Summons”) from the clerk to be served at a different address via certified mail to 131
Leonard Lane, Holly Springs, MS 38635. On October 7, 2012, the Second Summons was
returned to counsel for Ms. Fisher with the notation that it was “not deliverable as
addressed.”
On October 30, 2012, Ms. Fisher procured issuance of a third summons (“Third
Summons”) from the clerk. The Third Summons was addressed to Ms. Ankton‟s employer,
believed by Ms. Fisher to be the Internal Revenue Service (“IRS”) located at 22 North Front
Street, Memphis, TN 38103. A private process server, James Finney, attempted to serve Ms.
Ankton personally at the IRS building at 22 North Front Street, on two occasions: October
31, 2012 at 4:02 p.m. and November 3, 2012 at 3:13 p.m. In addition to attempting service at
Ms. Ankton‟s alleged place of employment, Mr. Finney also attempted on November 3, 2012
to serve Ms. Ankton personally at two addresses in Mississippi: 297 Holland Road, Holly
Springs, MS 38635; and 131 Holland Road, Holly Springs, MS 38635. Shortly thereafter, on
February 7, 2013, Mr. Finney returned a copy of the Third Summons to Ms. Fisher‟s counsel,
after attempting personal service, stating that he could not find Ms. Ankton at the IRS
building and that there was no record of her employment there.
When personal service of the Third Summons was unsuccessful, Ms. Fisher attempted
service of the Third Summons via certified mail. Specifically, Ms. Fisher attempted service
1 Ms. Fisher also served State Farm Insurance Company as the provider of uninsured/underinsured motorist
insurance coverage for Ms. Ankton. State Farm answered the complaint on June 27, 2013. The service of
process to State Farm is not an issue in this appeal.
2
via certified mail to the following three addresses, all of which were mailed on January 25,
2013: (1) 2153 West River Trace, Apartment 5, Memphis, TN 38134, (2) 22 North Front
Street, Memphis, TN 38103, and (3) 297 Holland Road, Holly Springs, MS 38635.
On February 13, 2013, Ms. Fisher‟s counsel received signed Domestic Return
Receipts for two of the certified mailings of the Third Summons, one sent to 297 Holland
Road2 and one sent to 22 North Front Street (the IRS building). The 297 Holland Road
receipt was signed by “Jake Jeans.” The 22 North Front Street receipt was signed by “Barry
Burk.” Both receipts were dated “2/13/13.” Ms. Ankton‟s signature did not appear on either
receipt. Neither Jake Jeans nor Barry Burk indicated in the provided area on the receipts that
they were Ms. Ankton‟s “agent[s].” Melissa Erin Sherman, an employee of Ms. Fisher‟s
counsel, signed the return for the Third Summons. On February 18, 2013, Ms. Fisher filed
the above returns with the trial court.
Around this time, Ms. Ankton retained counsel to represent her although it is unclear
how she came to know of Ms. Fisher‟s filing of the complaint. Ms. Ankton‟s attorney sent a
letter to Ms. Fisher‟s attorney providing that although he had been retained, “we are not
representing that our client has been properly served with process in this matter. We will,
however, advise you as soon as possible if we find that proper service has not been
perfected.”
Several weeks later, on March 30, 2013, the certified mail (sent January 25, 2013) of
the Third Summons sent to 2153 West River Trace Drive address was returned to Ms.
Fisher‟s counsel‟s law office, with an indication from the United States Postal Service that
the certified mail was “unclaimed.” Thus, the return of the Third Summons from the certified
mail signed by the named individuals at 22 North Front Street and 297 Holland Road was
filed before Ms. Fisher received the receipt from the certified mail sent to 2153 West River
Trace Drive indicating that the mail was unclaimed. As discussed below, Ms. Fisher did not
file the unclaimed copy of the Third Summons mailed to 2153 West River Trace Drive until
after Ms. Ankton filed her motion to dismiss.
Motion to Dismiss and Response
On June 27, 2013, Ms. Ankton filed a motion to dismiss Ms. Fisher‟s complaint on the
basis of insufficiency of process, insufficiency of service of process, and expiration of the
2
Ms. Fisher suggests, in her appellate brief, that this address is Ms. Ankton‟s “usual place of abode.”
3
statute of limitations.3 On August 1, 2013, Ms. Fisher responded by filing a motion to strike
Ms. Ankton‟s motion to dismiss, or in the alternative, a response to Ms. Ankton‟s motion to
dismiss.4 Ms. Fisher argued that service had been achieved and that the defenses raised by
Ms. Ankton had been waived.
Ms. Fisher attached several items to her response, including an affidavit by the private
process server, Mr. Busby, who attempted service of the First Summons. Mr. Busby stated
that he attempted service on Ms. Ankton five (5) times. According to his affidavit, during his
first attempt to serve Ms. Ankton, an individual answered the door at 2153 West River Trace,
Apartment 5 on June 18, 2012, 6:35 a.m., but advised Mr. Busby that Ms. Ankton was “at
work.” During his second attempt on June 18, 2012 at 6:00 p.m., Mr. Busby was told by an
individual at the address to send the documents to Ms. Ankton‟s divorce attorney, Arthur
Quinn.5 Mr. Busby made a third attempt on June 30, 2012 at 8:05 p.m., but was informed by
an individual at the address that Ms. Ankton was “out of town.” During his fourth attempt to
serve Ms. Ankton on July 25, 2012 at 6:50 a.m., no one answered the door or appeared to be
present at the address. Finally, on Mr. Busby‟s fifth attempt on August 1, 2012 at 6:25 p.m.,
an individual who identified herself as “Tonya,” answered the door and stated that she would
not accept service on behalf of Ms. Ankton. Mr. Busby, in his affidavit, concluded that Ms.
Ankton was evading service of the summons.
Ms. Fisher also attached an “Affidavit of Non-Service” submitted by Mr. Finney, the
private process server who attempted to serve the Third Summons. Mr. Finney‟s statement
provided:
Attempted at the IRS where they found no record of employment. Attempted at 297
Holland Road, Holly Springs, MS, where a neighbor said they didn‟t know the Defendant.
Attempted 131 Holland [Road], Holly Springs, MS. Spoke with a male black who stated he
did not know of the Defendant. (Called (662) [123-4567] provided by the Putnam Firm), was
told by a female that she wasn‟t the Defendant‟s mother, nor did she know the Defendant.
3
Ms. Ankton‟s counsel also entered a Notice of Special Appearance on June 27, 2013 for the limited purpose
of arguing her motion to dismiss.
4
Ms. Fisher filed a “Corrected Motion” on August 23, 2013 correcting, among other things, the exhibits
attached to the original motion.
5
Ms. Fisher also attached to her response two emails between her counsel and Ms. Ankton‟s divorce attorney,
Arthur Quinn. The emails suggest that Ms. Ankton did not permit Mr. Quinn to accept service of process in the
case-at-bar.
4
Ms. Fisher also attached the affidavit (signed August 1, 2013) of Melissa Erin
Sherman, an employee of Ms. Fisher‟s counsel. Ms. Sherman provided that counsel for Ms.
Fisher received two Domestic Return Receipts signed by Jake Jeans and Barry Burk, both on
February 13, 2013. As stated above, the return of these two accepted copies of the Third
Summons was filed February 18, 2013. Additionally, Ms. Sherman‟s affidavit provided that
certified mail had been sent to Ms. Ankton at 2153 West River Trace Drive and had been
returned unclaimed. The envelope from this mailing was attached to Ms. Fisher‟s response
and indicates the United States Postal Service‟s designation that the mail was “unclaimed.”
Separate from her response to the motion to dismiss, on August 22, 2013, Ms. Fisher
filed a return of the unserved First Summons along with Mr. Busby‟s Affidavit explaining his
five service attempts. She also filed the return of the unserved Second Summons along with
the Affidavit of Melissa Erin Sherman.
Trial Court’s Ruling
The trial court heard Ms. Ankton‟s motion to dismiss on October 18, 2013. On April
24, 2014, the trial court entered its Memorandum Opinion and Order granting the motion to
dismiss. The trial court found that Ms. Fisher could not rely on the filing date of her
complaint to toll the statute of limitations because the return accompanying the Third
Summons,6 issued on October 30, 2012, was not filed with the clerk within ninety days of
issuance. Accordingly, because Ms. Fisher was in contravention of the requirement that the
return be filed within ninety days of a summons‟ issuance, the trial court also found that she
had intentionally delayed service of process. Additionally, the trial court noted that the Third
Summons was not signed by Ms. Ankton, but by two unknown individuals, and that no
affidavit as required by Rule 4.03(2)7 was included with the return. Ultimately, Ms. Fisher‟s
6
The parties do not dispute that service was never achieved with either the First or Second Summons.
7
Rule 4.03(2) provides:
When process is served by mail, the original summons, endorsed as below;
an affidavit of the person making service setting forth the person‟s
compliance with the requirements of this rule; and, the return receipt shall be
sent to and filed by the clerk. The person making service shall endorse over
his or her signature on the original summons the date of mailing a certified
copy of the summons and a copy of the complaint to the defendant and the
date of receipt of return receipt from the defendant. If the return receipt is
signed by the defendant, or by person designated by Rule 4.04 or by statute,
(Continued…)
5
case was dismissed with prejudice based on the trial court‟s finding that she had not tolled
the statute of limitations, which expired June 13, 2014. Ms. Fisher timely filed this appeal.
Issues
Appellant presents three issues, as taken from her brief, for our review:
1. Did the trial court err in dismissing [Ms. Fisher]‟s Complaint
with prejudice, due to the summons not being returned to the
clerk within 90 days of issuance?
2. Did the trial court err in holding that [Ms. Fisher]
intentionally delayed service of the summons and complaint?
3. Did the trial court err in finding that the [Ms. Ankton] had not
waived her Tenn. R. Civ. P. 12.02(4) and (5) defenses by failing
to timely assert the same?
Standard of Review
In considering an appeal from a trial court‟s grant of a motion to dismiss, we take all
allegations of fact in the complaint as true and review the trial court‟s legal conclusions de
novo with no presumption of correctness. Tenn. R. App. P. 13(d); Mid-South Indus., Inc. v.
Martin Mach. & Tool, Inc., 342 S.W.3d 19, (Tenn. Ct. App. 2010) (citing Owens v.
Truckstops of Am., 915 S.W.2d 420, 424 (Tenn. 1996)). In addition, when deciding motions
to dismiss premised on issues involving either service or the process of service, a trial court
may properly consider matters outside the pleadings without converting the motion to one for
summary judgment. Milton v. Etezadi, No. E2012-00777-COA-R3-CV, 2013 WL 1870052,
at *3–4 (Tenn. Ct. App. May 3, 2013) (citing McNeary v. Baptist Mem’l Hosp., 360 S.W.3d
429, 436 (Tenn. Ct. App. 2011)).
We review the trial court‟s interpretation of a statute or rule de novo with no
presumption of correctness. See Lind v. Beaman Dodge, Inc., 356 S.W.3d 889, 895 (Tenn.
2011); Mills v. Fulmarque, 360 S.W.3d 362, 366 (Tenn. 2012). In construing a statute or
rule, our primary purpose is to give effect to the purpose of the legislature. Lipscomb v. Doe,
32 S.W.3d 840, 844 (Tenn. 2000). The Tennessee Supreme Court has outlined the applicable
(…continued)
service on the defendant shall be complete. If not, service by mail may be
attempted again or other methods authorized by these rules or by statute may
be used.
6
principles that apply to the question of statutory interpretation:8
When dealing with statutory interpretation . . . our primary
objective is to carry out legislative intent without broadening or
restricting the statute beyond its intended scope. Houghton v.
Aramark Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002). In
construing legislative enactments, we presume that every word
in a statute has meaning and purpose and should be given full
effect if the obvious intention of the General Assembly is not
violated by so doing. In re C.K.G., 173 S.W.3d 714, 722 (Tenn.
2005). When a statute is clear, we apply the plain meaning
without complicating the task. Eastman Chem. Co. v. Johnson,
151 S.W.3d 503, 507 (Tenn. 2004). Our obligation is simply to
enforce the written language. Abels ex rel. Hunt v. Genie
Indus., Inc., 202 S.W.3d 99, 102 (Tenn. 2006).
Estate of French v. Stratford House, 333 S.W.3d 546, 554 (Tenn. 2011). With these
principles in mind, we turn to the substance of the appeal.
Analysis
As a threshold matter, we must examine whether the trial court properly interpreted
and applied the rules concerning the filing of a return of a summons. The trial court, as stated
above, found that Ms. Fisher could not rely on filing of her complaint to toll the statute of
limitations because she had failed to file the return of the Third Summons within ninety days
of its issuance. Specifically, the trial court stated in its written order:
[Ms. Fisher] cannot rely on the filing of the Complaint as tolling
the Statute of Limitations because [her] return of service of the
third summons was not filed with the Clerk within ninety (90)
days of issuance and therefore [she] has intentionally caused
delay of prompt service of summons, since [Ms. Fisher] has
never complied with [Tennessee Rules of Civil Procedure] 3 or
Rule 4.03 requiring that service be attempted (and return thereon
made and filed with the Court Clerk) within 90 days after
issuance of the summons.
8
“Although the rules of civil procedure are not statutes, the same rules of statutory construction apply in the
interpretation of rules.” Thomas v. Oldfield, 279 S.W.3d 259, 261 (Tenn. 2009).
7
In reaching its conclusion, it is clear that the trial court relied on the interplay between
two Tennessee Rules of Civil Procedure, Rule 3 and Rule 4.03. First, the trial court found
that Ms. Fisher had failed to comply with Rule 4.03(1), interpreting the rule to require that a
plaintiff must file her return proof of service within ninety days. Rule 4.03(1) provides:
(1) The person serving the summons shall promptly make proof
of service to the court and shall identify the person served and
shall describe the manner of service. If a summons is not served
within 90 days after its issuance, it shall be returned stating the
reasons for failure to serve. The plaintiff may obtain new
summonses from time to time, as provided in Rule 3, if any prior
summons has been returned unserved or if any prior summons
has not been served within 90 days of issuance.
(Emphasis added.) The trial court, emphasizing the underlined portion of Rule 4.03(1), found
that the rule requires plaintiffs to file the return of unserved summonses within ninety days of
issuance. Thus, because Ms. Fisher did not file her return of service for any of the summons
issued in this case within ninety days of their issuances, the trial court concluded that Ms.
Fisher had not complied with Rule 4.03. Accordingly, the trial court found that Ms. Fisher‟s
non-compliance with Rule 4.03 meant that she had not tolled the statute of limitations and
that the statute of limitations had expired. Therefore, the trial court granted Ms. Ankton‟s
motion to dismiss the complaint.
In reaching its conclusion that Ms. Fisher‟s purported failure to comply with Rule
4.03(1) meant that her complaint did not toll the statute of limitations, the trial court appears
to have also relied on Tennessee Rules of Civil Procedure 3. Rule 3 provides:
All civil actions are commenced by filing a complaint with the
clerk of the court. An action is commenced within the meaning
of any statute of limitations upon such filing of a complaint,
whether process be issued or not issued and whether process be
returned served or unserved. If process remains unissued for 90
days or is not served within 90 days from issuance, regardless of
the reason, the plaintiff cannot rely upon the original
commencement to toll the running of a statute of limitations
unless the plaintiff continues the action by obtaining issuance of
new process within one year from issuance of the previous
process or, if no process is issued, within one year of the filing
8
of the complaint.
(Emphasis added.) With regard to this provision, the trial court stated that “service of the
[Third Summons] was attempted via U.S. Mail on January 25, 2013, the date it was mailed,
which is within ninety (90) days of the issuance . . ., [but it was] not returned for 106 days
and therefore is not valid for having been served within 90 days . . . .” Thus, the trial court‟s
conclusion that the Third Summons was not served within the proper time frame appears to
be based on Ms. Fisher‟s failure to file the return proof of service within ninety days of
issuance.9 Consequently, it appears that the trial court concluded that by failing to return the
unserved summonses to the court within ninety days of issuance pursuant to Rule 4.03(1), she
also failed to timely serve the summons. The trial court‟s order also provides that, “By not
attempting service for 106 days after issuance, the Plaintiff[] intentionally delayed service of
process under Tennessee Rules of Civil Procedure Rule 4.01.” Ultimately, the trial court
found that Ms. Fisher was unable to rely on the original commencement of the lawsuit to toll
the statute of limitations because Rule 3 requires a plaintiff to either serve the defendant or
return the summons within ninety days pursuant to Rule 4.03(1). Thus, the trial court granted
Ms. Ankton‟s motion to dismiss.
Ms. Ankton urges this Court to affirm the ruling of the trial court. Specifically, Ms.
Ankton agrees with the trial court‟s interpretation of Rule 4.03 as imposing a ninety-day
window on a plaintiff to file a return of proof of service. For this premise, Ms. Ankton cites a
case decided by this Court, Fair v. Cochran, No. E2011-00831-COA-R3-CV, 2012 WL
1071142 (Tenn. Ct. App. Mar. 30, 2012). We note, however, that our decision in Fair was
reversed by the Tennessee Supreme Court on September 12, 2013. See Fair v. Cochran, 418
S.W.3d 542 (Tenn. 2013). The Supreme Court in Fair held that a plaintiff‟s failure to return
proof of service of a summons within ninety days from issuance did not preclude the
plaintiff‟s ability to rely on the commencement date of suit to toll the statute of limitations.
Id. at 546–47.
Although it was decided after the filing of Ms. Ankton‟s motion to dismiss and Ms.
Fisher‟s responses, Fair was decided before oral argument in the trial court on the motion to
dismiss (October 18, 2013) and also before the trial court entered its final order (April 24,
2014). See generally Fair, 418 S.W.3d 542. Still, neither party cited Fair at oral argument
before the trial court. Neither party filed a supplement to its motion or response bringing Fair
9
We note that the Third Summons was mailed within ninety days of its issuance; however, it was returned to
the court 106 days after its issuance. As discussed below, the trial court‟s order of dismissal relies on its
finding that the summons was not promptly returned to the court, not that service of the summons was not
accomplished or was not timely. Accordingly, we will not address those issues. See generally Tenn. R. Civ. P.
4.4(11) (“Service by mail is complete upon mailing.”).
9
to the attention of the trial court. Additionally, the learned trial judge noted in his oral ruling
that he had not been made aware of any reported appellate decisions where a court had
permitted service of process when a return was filed later than ninety days after its issuance.
Despite the absence of the Supreme Court‟s decision in Fair from the arguments made
before the trial court and in the appellate briefs, Fair formed the basis of Ms. Fisher‟s oral
argument before this Court. Remarkably, however, Ms. Fisher‟s appellate brief also omits
any citation to or reference thereof to the Tennessee Supreme Court‟s decision in Fair. For
the sake of judicial economy, we note the foregoing shortcomings in hopes that litigants will
practice due diligence and be mindful of the constantly changing state of the law. See, e.g.,
Dunn v. Palermo, 522 S.W.2d 679, 688 (Tenn. 1975) (“[The law] is not static and
immutable. It is in constant growth, going through mutations and adapting itself to changing
conditions and in improving and refining doctrine.”) (internal quotations and citation
omitted). Accordingly, we turn to consider the Fair opinion.
Ms. Fisher posited at oral argument that the holding in Fair demonstrates that a
plaintiff is not required to file her return within ninety days to rely on the original
commencement of the lawsuit to toll the statute of limitations. We agree and conclude that
the Supreme Court‟s decision in Fair is dispositive of the issue presented in this case. In
Fair, the plaintiff and defendant were involved in an automobile accident on August 6, 2009.
Id. at 543. On December 11, 2009, the plaintiff filed suit against the defendant alleging
negligence. Id. On the same day, a summons was issued. Id. On January 4, 2011, the
defendant moved to dismiss the plaintiff‟s complaint based on the expiration of the statute of
limitations. Id. The defendant asserted that he had been involved in an automobile accident
on August 6, 2009, but stated that he had never been served with a complaint or summons.
Id. He also argued that no return of proof of service of process had been filed with the clerk.
Id. The defendant, relying on Tennessee Rule of Civil Procedure 3, argued that the plaintiff
could not rely on the date of the filing of the complaint to toll the statute of limitations
because she had failed to either serve him or to reissue process within a year of issuance of
the original summons. Id.
The plaintiff eventually filed a response in opposition to the defendant‟s motion to
dismiss, arguing that service had been achieved. Id. In support of her response, Plaintiff filed
a return of the summons, indicating that she achieved personal service on the defendant. Id.
Plaintiff explained the delay in returning the summons, stating that her private process server
had actually achieved personal service on the defendant at his address. Id. However, the
private process server had “inadvertently failed to make proof of service of the original
[s]ummons and return it to the Court” because the plaintiff‟s counsel‟s office was closed for
a week after she achieved service. Id. (internal quotations omitted). The defendant argued,
10
however, that dismissal was proper regardless of whether personal service was actually
achieved because the language of Rule 4.03 required the return of proof of service to be filed
within ninety days of the issuance of the summons. Id. at 544. In Fair, it was undisputed that
412 days passed before the plaintiff filed the return.10
The court in Fair stated that the “only issue in this appeal is whether the return of
proof of service of process 412 days after the issuance of a summons precludes [the plaintiff]
from relying upon the original commencement of the lawsuit to toll the statute of
limitations.” Id. at 544–45. The Fair Court began its analysis by examining the plain
language of Tennessee Rule of Civil Procedure 3 to determine when it permits a plaintiff to
rely on the commencement date of the lawsuit to toll the statute of limitations. Fair, 418
S.W.3d at 545–46; see Estate of French, 333 S.W.3d at 554 (citing Eastman Chem. Co. v.
Johnson, 151 S.W.3d 503, 507 (Tenn. 2004)). Tennessee Rule of Civil Procedure 3 provides,
“All civil actions are commenced by filing a complaint with the clerk of the court. An action
is commenced within the meaning of any statute of limitations upon such filing of a
complaint, whether process be issued or not issued and whether process be returned
served or unserved.” (Emphasis added.)
In addition to providing when an “action is commenced,” Rule 3 also states when a
plaintiff may rely upon the filing date of the complaint (i.e. the original commencement of
the action) to toll the statute of limitations. Fair, 418 S.W.3d at 545. Rule 3 “unambiguously
instructs” that, when process is served within ninety days of issuance, a plaintiff may rely on
the effectiveness of the original commencement to toll the running of the statute of
limitations. Fair, 418 S.W.3d at 545. However, where process is not served within ninety
days of issuance, a plaintiff cannot rely on the date of the filing of the complaint to toll the
statute of limitations unless the plaintiff obtains issuance of new process within one year of
the issuance of the previous process. Id. (citing Tenn. R. Civ. P. 3). Still, the Fair Court
noted that although Rule 3 provides direction on the tolling of the statute of limitations
through the issuance and service of process, “[c]onspicuously absent from Rule 3 is any
language indicating that the prompt return of proof of service is necessary to render
commencement effective to toll the statute of limitations.” Id. Thus, the Court determined
that Rule 3 does not require a plaintiff to return proof of service within ninety days to rely on
the original commencement to toll the statute of limitations. Id.
The Fair Court then turned to consider Rule 4.03 of the Tennessee Rules of Civil
Procedure. Rule 4.03(1), as stated above, requires the person serving the summons to
10
The court did not take issue with the plaintiff‟s filing of the return proof of service after the filing of the
defendant‟s motion to dismiss.
11
“promptly” make proof of service. Tenn. R. Civ. P. 4.03(1). The Court noted, however, that
the rule does not designate what time frame constitutes “promptly.” See Tenn. R. Civ. P.
4.03(1); see also Fair, 418 S.W.3d at 546.11 Regardless, the Court held that “no language in
Rule 4.03[(1)] states or implies that the failure to return proof of service promptly renders
commencement ineffective to toll the statute of limitations.” Fair, 418 S.W.3d at 546.
Rather, the Court in Fair noted that “Rule 4.03(1) does not state that promptly returning
proof of service to the court is necessary to accomplish service. To the contrary, „[t]he return
of service is „a written account of the actions taken by the person making service to show to
whom and how the service was made, or the reason service was not made.‟‟” Id. (citing
Watson v. Garza, 316 S.W.3d 589, 593 (Tenn. Ct. App. 2008) (quoting 3 Nancy Fraas
McClean, Tennessee Practice Series—Rules of Civil Procedure Annotated § 4:15 (4th ed.
2008))). Ultimately, the Fair Court held that nothing in Rules 3 or 4.03(a) provide that the
failure to return proof of service within ninety days renders the original commencement of
the lawsuit ineffective to toll the statute of limitations. Id. at 545, 546.
The facts presented in the case-at-bar are strikingly similar to the facts presented in
Fair. In this case, it is clear that Ms. Fisher filed her lawsuit on June 13, 2012. It is also clear
that Ms. Fisher had three summonses issued by the clerk. All three summonses were issued
within one year of the filing of the complaint (i.e. the original commencement of the action).
As reiterated in Fair, Rule 3 allows a plaintiff to rely upon the original commencement of the
action to toll the statute of limitations if she obtains issuance of a new summons within one
year of the previous summons. Id. at 545; Tenn. R. Civ. P. 3. Thus, in the instant case,
because it is undisputed that all three summonses were issued within one year of the
complaint, Ms. Fisher may rely upon the original commencement of the action. Still, this
conclusion does not end our inquiry. See id.; see also Stempa v. Walgreen Co., 70 S.W.3d
39, 43 (Tenn. Ct. App. 2001) (“Because Plaintiffs had process issued within one year of
filing of the Complaint, they are entitled to rely on the original filing date to toll the running
of the statute of limitations.”).
Following the analysis in Fair, we next turn to Rule 4.03 to determine whether it
requires Ms. Fisher to file the return proof of service within ninety days of issuance. Like the
Fair Court, we must conclude it does not. “[N]o portion of Rule 4.03 mandates filing the
return of proof of service within ninety days.” Fair, 418 S.W.3d at 545. In Fair, the Supreme
Court noted that the plaintiff waited 412 days before filing her return of proof of service; in
this case, Ms. Fisher filed her return in significantly less time, approximately 106 days. Id.
11
We note that “[w]hen a dispute arises as to whether service of process has been accomplished, a trial court
may properly consider any delay in filing the return when weighing the evidence and resolving the dispute.”
Fair, 418 S.W.3d at 546.
12
Clearly, if the Supreme Court held in Fair that 412 days from issuance was permissible, we
cannot conclude that Ms. Fisher‟s delay of 106 days is fatal to her action.
We must conclude, based on Fair v. Cochran, that the trial court erred in finding that
Ms. Fisher was precluded from relying on the original commencement of the action to toll the
statute of limitations because of her failure to return the summons to the clerk within ninety
days. See id. at 546. We reverse the decision of the trial court dismissing Ms. Fisher‟s
complaint. Ms. Fisher may rely on the original commencement of the action (i.e. the filing of
the complaint) to toll the statute of limitations because neither Rule 3 nor Rule 4.03 require
her to file the return of proof of service within ninety days of the summons‟ issuance.
Our holding is limited to the issue of whether Rules 3 and 4.03 required Ms. Fisher to
file her return within ninety days of the summons‟ issuance to toll the statute of limitations.
The trial court predicated its other findings, such as its finding that Ms. Fisher intentionally
delayed service, on an erroneous interpretation of Rules 3 and 4.03. Thus, we vacate any
collateral findings of the trial court. We also render no holding as to the validity of service
allegedly effectuated upon Ms. Ankton. We remand all remaining issues for further litigation
as the trial court deems necessary.
Finally, although Ms. Fisher raised the issue of waiver in the trial court, the trial
court‟s order provides that its dismissal of the case for non-compliance with Rules 3 and 4.02
renders the issue of waiver moot. At the appellate level, “we are limited in authority to the
adjudication of issues that are presented and decided in the trial courts.” In re Estate of
Boykin, 295 S.W.3d 632, 636 (Tenn. Ct. App. 2008). Because the trial court did not
adjudicate this issue, we decline to address it in this Opinion. However, clearly, our holding
demonstrates that that the issue of waiver is not moot and may be litigated with the other
collateral issues.
Conclusion
The judgment of the Shelby County Circuit Court is reversed in part, vacated in part,
and this case is remanded for further proceedings as are necessary and consistent with this
Opinion. Costs of this appeal are taxed against Appellee Chandranita M. Ankton, for all of
which execution may issue if necessary.
_________________________________
J. STEVEN STAFFORD, JUDGE
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