Pamela Moses v. Shelby County Sheriff Bill Oldham

07/25/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
June 27, 2017 Session
PAMELA MOSES v. SHELBY COUNTY SHERIFF BILL OLDHAM, ET
AL.
Appeal from the Chancery Court for Shelby County
No. CH-14-1316 J. Weber McCraw, Judge
___________________________________
No. W2016-01171-COA-R3-CV
___________________________________
Appellant appeals the dismissal of her action based on the expiration of the applicable
statute of limitations and non-compliance with Rule 3 of the Tennessee Rules of Civil
Procedure. Appellant also appeals the trial court’s denial of a motion to recuse.
Discerning no error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the court, in which W. NEAL
MCBRAYER, and BRANDON O. GIBSON, JJ., joined.
Pamela Moses, Memphis, Tennessee, Pro Se.
John Marshall Jones, Memphis, Tennessee, for the appellees, Shelby County Sheriff, Bill
Oldham & Officers and Shelby County Homeland Security.
S. Newton Anderson and Cameron M. Watson, Memphis, Tennessee, for the appellees,
AlliedBarton Security Services, LLC.
MEMORANDUM OPINION1
1
Rule 10 of the Rules of the Court of Appeals of Tennessee provides:
This Court, with the concurrence of all judges participating in the case, may affirm,
reverse or modify the actions of the trial court by memorandum opinion when a formal
opinion would have no precedential value. When a case is decided by memorandum
opinion it shall be designated “MEMORANDUM OPINION”, shall not be published, and
shall not be cited or relied on for any reason in any unrelated case.
Background
On September 2, 2014, Plaintiff/Appellant Pamela Moses filed her original
petition (“initial petition” or “original petition”) for a temporary restraining order and
injunctive relief against Shelby County Sheriff Bill Oldham & Officers, Shelby County
Homeland Security (together with Sheriff Oldham & Officers, “Shelby County
Defendants”), and AlliedBarton Security Services LLC (“AlliedBarton,” or, together with
the Shelby County Defendants, “Appellees”) in the Shelby County Chancery Court (“trial
court”). Thereafter, Ms. Moses removed the case to the U.S. District Court for the
Western District of Tennessee (“district court”) on September 15, 2014. However, on
March 2, 2015, the district court remanded the matter back to the trial court because
“[r]emoval is available only to defendants[.]” On August 28, 2015, Ms. Moses filed a
supplemental petition.
On September 23, 2015, the Shelby County Defendants made a special
appearance to assert that they had not been served with process and filed a motion to
dismiss both the original and supplemental petitions. The Shelby County Defendants
supported their motion to dismiss with an affidavit from Alissa Holt, the manager of the
Office of the Chancery Court Clerk. According to Ms. Holt’s affidavit:
5. [Ms.] Moses filed her [initial petition] on September 2, 2014.
6. With respect to [Ms. Moses’s] original Petition, no request for the
issuance of service of process for “Shelby County Sheriff Bill Oldham &
Officers” has been made to the Clerk and Master during the period from
September 2, 2014 (the date of the filing of the original Petition) through
September 9, 2015, the date I reviewed the file. Therefore, only with
respect to [Ms. Moses’s] original Petition, no Summons for “Shelby County
Sheriff Bill Oldham & Officers” has been issued by the Clerk and Master
during the time this case has been pending.
7. With respect to [Ms. Moses’s] original Petition, no request for the
issuance of service of process for “Shelby County Homeland Security” has
been made to the Clerk and Master during the period from September 2,
2014 (the date of the filing of the original Petition) through September 9,
2015, the date I reviewed the file. Therefore, only with respect to [Ms.
Moses’s] original Petition, no Summons for “Shelby County Homeland
Security” has been issued by the Clerk and Master during the time this case
has been pending.
Thus, Ms. Holt stated that no summons had been issued to any of the Shelby County
Defendants within one year of the filing of Ms. Moses’s initial petition.
Similarly, on October 19, 2015, AlliedBarton made a special appearance to assert
that it had not been served with process. AlliedBarton subsequently filed a motion to
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dismiss the original and supplemental petitions on November 17, 2015. The motion was
accompanied by another affidavit from Ms. Holt, which stated that “[w]ith respect to the
petitioner's original petition filed September 2, 2014, the only summons issued to
AlliedBarton [] was filed and issued on September 24, 2015[.]”
On October 15, 2015, the trial court entered an order denying Ms. Moses’s request
for injunctive relief “for her alleged denial of reasonable access to the courts and other
buildings as well as her alleged harassment by various law enforcement agencies and its
agents in public buildings as well as in other public places.” The trial court noted that the
allegations raised by Ms. Moses involved events that occurred over a year prior and
therefore Ms. Moses did not show any irreparable harm at the present time.
Thereafter, on November 25, 2015, Ms. Moses filed a motion to disqualify the
trial judge based on his knowledge as the presiding judge over a prior criminal court case
against her; the trial court promptly denied her motion by written order on December 3,
2015, finding that Ms. Moses failed to raise any extrajudicial bias sufficient to warrant
recusal.
After a hearing on May 13, 2016, the trial court entered an order on the same day
dismissing both Ms. Moses’s original and supplemental petitions.2 Therein, the trial
court found that Ms. Moses’s petition was not accompanied by any summons as required
by the Tennessee Rules of Civil Procedure at the time of filing or within one year of the
filing of the original petition. As a result, the trial court found that Ms. Moses’s claims in
her original petition were time-barred. The trial court also rejected the following
arguments made by Ms. Moses: (1) that the limitations period should have been tolled
because Ms. Moses removed the petition to district court; (2) that Ms. Moses should be
allowed to proceed on the supplemental petition despite the fact that Ms. Moses did not
obtain leave of court to file such pleading; and (3) that estoppel should apply for
excusable neglect. Ms. Moses filed a timely notice of appeal to this Court.
Issues Presented
Ms. Moses raises six issues in her appellate brief. In our view, however, there are
two central issues to this case:
1. Whether the trial court erred in denying Ms. Moses’s motion to recuse.
2. Whether the trial court erred in granting Appellees’ motion to dismiss based upon
Rule 3 and the applicable statute of limitations.
Discussion
2
The record does not contain a transcript from the hearing.
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At the outset, we note that Ms. Moses appears before this Court pro se. We
recognize and appreciate Ms. Moses’s right to appear before this Court self-represented.
The law is well-settled in Tennessee, however, that pro se litigants must comply with the
same standards to which lawyers must adhere. Watson v. City of Jackson, 448 S.W.3d
919, 926 (Tenn. Ct. App. 2014). As explained by this Court:
Parties who decide to represent themselves are entitled to fair and equal
treatment by the courts. The courts should take into account that many pro
se litigants have no legal training and little familiarity with the judicial
system. However, the courts must also be mindful of the boundary between
fairness to a pro se litigant and unfairness to the pro se litigant’s adversary.
Thus, the courts must not excuse pro se litigants from complying with the
same substantive and procedural rules that represented parties are expected
to observe.
Jackson v. Lanphere, No. M2010-01401-COA-R3-CV, 2011 WL 3566978, at *3 (Tenn.
Ct. App. Aug. 12, 2011) (quoting Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct.
App. 2003) (internal citations omitted)). We keep these principles in mind in considering
this appeal.3
I.
The Tennessee Code of Judicial Conduct is contained in Rule 10 of the Tennessee
Supreme Court Rules (“Code of Judicial Conduct”). See Tenn. Sup. Ct. R. 10. Canon
2.11 of the Code of Judicial Conduct provides that “[a] judge shall disqualify himself or
herself in any proceeding in which the judge’s impartiality might reasonably be
questioned[.]” Tenn. Sup. Ct. R. 10, Canon 2.11(A). It is well-settled that “‘[t]he right to
a fair trial before an impartial tribunal is a fundamental constitutional right.’” Bean v.
Bailey, 280 S.W.3d 798, 803 (Tenn. 2009) (quoting State v. Austin, 87 S.W.3d 447, 470
(Tenn. 2002)). Article VI, Section 11 of the Tennessee Constitution, Tennessee Code
Annotated section 17-2-101, and the Code of Judicial Conduct prohibit a judge from
presiding over a matter in which the judge has an interest in the outcome or where the
judge is connected to either party. The purpose of the prohibition is to “guard against the
prejudgment of the rights of litigants and to avoid situations in which the litigants might
have cause to conclude that the court [] reached a prejudged conclusion because of
interest, partiality, or favor.” State v. Austin, 87 S.W.3d 447, 470 (Tenn. 2002) (citation
omitted). Additionally, we have emphasized that “the preservation of the public’s
confidence in judicial neutrality requires not only that the judge be impartial in fact, but
also that the judge be perceived to be impartial.” Kinard v. Kinard, 986 S.W.2d 220, 228
3
Ms. Moses’s brief contains no references to the appellate record, in clear violation of Rule 27(a)
of the Tennessee Rules of Appellate Procedure and Rule 6 of the Rules of the Court of Appeals of
Tennessee. Despite this deficiency, we proceed to consider the merits of this appeal.
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(Tenn. Ct. App. 1998) (citations omitted). Accordingly, even in cases wherein a judge
sincerely believes that he can preside over a matter fairly and impartially, the judge
nevertheless should recuse himself in cases where a reasonable person “‘in the judge’s
position, knowing all the facts known to the judge, would find a reasonable basis for
questioning the judge’s impartiality.’” Davis v. Liberty Mut. Ins. Co., 38 S.W.3d 560,
564–65 (Tenn. 2001) (quoting Alley v. State, 882 S.W.2d 810, 820 (Tenn. Crim. App.
1994)). It is an objective test designed to avoid actual bias and the appearance of bias,
“since the appearance of bias is as injurious to the integrity of the judicial system as
actual bias.” Davis, 38 S.W.3d at 565 (citation omitted).
Pursuant to Rule 10B of the Rules of the Tennessee Supreme Court, a litigant is
entitled to seek disqualification of a trial judge by filing a motion that: (1) is supported by
an affidavit under oath or a declaration under penalty of perjury by personal knowledge
or by other appropriate materials; (2) states, with specificity, all factual and legal grounds
supporting disqualification of the judge; and (3) affirmatively states that it is not being
presented for any improper purpose, such as to harass or to cause unnecessary delay or
needless increase in the cost of litigation. Tenn. Sup. Ct. R. 10B, § 1.01.
Upon the filing of such motion, “the judge whose recusal is sought shall either
grant or deny the motion in writing.” Watson v. City of Jackson, 448 S.W.3d 919, 927
(Tenn. Ct. App. 2014). If the motion is denied, the judge shall state in writing the grounds
for the denial. Tenn. Sup. Ct. R. 10B, § 1.03. Here, Ms. Moses filed a motion on
November 25, 2015 to disqualify the trial court. Therein, Ms. Moses alleged that the trial
judge had personal knowledge of Ms. Moses “because he acted as the presiding judge” in
a criminal proceeding involving Ms. Moses that relates to the case-at-bar. Ms. Moses
noted that while she had pleaded guilty in the criminal proceeding, “unbeknownst to [the
trial judge], the guilty plea was coerced[.]” Pursuant to the mandates of Rule 10B, Ms.
Moses accompanied her motion with an affidavit. The motion did not, however, state that
it was not being filed for an improper purpose, as required by Rule 10B, section 1.01.
Nevertheless, this Court has thoroughly reviewed Ms. Moses’s motion and the
record in this case, and we conclude that the trial judge did not err in denying the motion
to recuse. In denying the motion, the trial judge made the following findings:
It appears that the [Ms. Moses’s] primary concern is this Judge has
personal knowledge of the petitioner because this Judge was the Special
Judge in a Shelby County Criminal Court matter, In this criminal
proceeding, this Judge accepted a plea of guilty by [Ms. Moses] to several
charges brought against the petitioner. Through the criminal proceedings
this Judge became acquainted with the petitioner and her legal issues. The
petitioner sought to set aside her plea of guilty and this Judge denied her
request. The reasons for the denial were fully stated on the record.
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In addition, in this cause, this Judge previously denied a request for
injunctive relief and denied [Ms. Moses’s] request for the Shelby County
Sheriff’s Department to have no contact with her while she was in the
courthouse conducting her business. In support of this Court’s ruling, the
Court found that the petitioner could not establish any irreparable harm
caused to her by law enforcement’s presence.
This Judge has no bias, prejudice or acrimonious relationship toward
[Ms. Moses] and is only familiar with [Ms. Moses] because of assignments
by the Supreme Court of this State. The familiarity of [Ms.] Moses from
prior assignments and adverse rulings against the petitioner when such
rulings are supported by the law do not create a conflict of interest or any
appearance of impropriety.
As noted by both the trial court and Appellees, “[n]ot every bias, partiality, or
prejudice merits recusal.” Alley, 882 S.W.2d at 821. Rather, “[t]o disqualify, prejudice
must be of a personal character, directed at the litigant, ‘must stem from an extrajudicial
source and result in an opinion on the merits on some basis other than what the judge
learned from . . . participation in the case.’” Id. (quoting State ex rel. Wesolich v. Goeke,
794 S.W.2d 692, 697 (Mo. Ct. App. 1990)). As we recently explained:
A trial judge is not completely insulated from a recusal motion,
however, where it holds a bias that originated during the course of the
proceedings. Rather, “[i]f the bias is alleged to stem from events
occur[r]ing in the course of the litigation . . . , the party seeking recusal has
a greater burden to show bias that would require recusal, i.e., that the bias is
so pervasive that it is sufficient to deny the litigant a fair trial.” Runyon v.
Runyon, No. W2013-02651-COA-T10B-CV, 2014 WL 1285729, at *6
(Tenn. Ct. App. Mar. 31, 2014) (no perm. app. filed) (quoting McKenzie v.
McKenzie, No. M2014-00010-COA-T10B-CV, 2014 WL 575908, at *1
(Tenn. Ct. App. Feb. 11, 2014) (no perm. app. filed)). This Court has
described a “pervasive” bias as one that “reflect[s] an utter incapacity to be
fair.” Groves, 2016 WL 5181687, at *5. As such, “[j]udicial expressions of
impatience, dissatisfaction, annoyance, and even anger towards counsel, the
parties, or the case, will not ordinarily support a finding of bias or prejudice
unless they indicate partiality on the merits of the case.” Id. (citing Alley,
882 S.W.2d at 822).
Clemmons v. Nesmith, No. M2016-01971-COA-T10B-CV, 2017 WL 480705, at *12
(Tenn. Ct. App. Feb. 6, 2017), perm. app. denied (Tenn. Mar. 9, 2017).
Here, Ms. Moses has failed to show any bias on the part of the trial court that
would necessitate recusal in this case. Nothing in the record indicates that the trial
judge’s decision to dismiss Ms. Moses’s lawsuit resulted from anything other than the
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trial court’s application of the law as he saw it to the facts of this case. The simple fact
that the trial judge presided over another case involving Ms. Moses is insufficient to
support recusal. See State v. Reid, 213 S.W.3d 792, 815 (Tenn.2006) (“A trial judge is
not disqualified because that judge has previously presided over legal proceedings
involving the same defendant.”). Furthermore, we have held repeatedly that prior
adverse rulings against a party, “even if erroneous, numerous and continuous,” may not
be sufficient to necessitate recusal. Alley, 882 S.W.2d at 821. As such, we affirm the
trial court’s decision to deny Ms. Moses’s motion to recuse.
II.
Ms. Moses next asserts that the trial court erred in dismissing her petition for
failure to comply with Rule 3 of the Tennessee Rules of Civil Procedure, which resulted
in her petition being filed outside the statute of limitations. Ms. Moses argues that the
trial court incorrectly concluded that she did not comply with applicable rules or, in the
alternative, that her failure should be excused based on excusable neglect.
Here, the Appellees’ filed a motion to dismiss Ms. Moses’s claims based upon the
expiration of the statute of limitations. Both motions were supported by affidavits from
Ms. Holt, the manager of the Chancery Court Clerk’s office. The expiration of the statute
of limitations may properly be raised in a motion to dismiss for failure to state a claim
upon which relief can be granted. See Young ex rel. Young v. Kennedy, 429 S.W.3d 536,
549 (Tenn. Ct. App. 2013) (citing Tenn. R. Civ. P. 12.02(6)). Rule 12.02, however, states
that:
If, on a motion asserting the defense numbered (6) to dismiss for failure to
state a claim upon which relief can be granted, matters outside the pleading
are presented to and not excluded by the court, the motion shall be treated
as one for summary judgment and disposed of as provided in Rule 56, and
all parties shall be given reasonable opportunity to present all material
made pertinent to such a motion.
Tenn. R. Civ. P. 12.02. In her appellate brief, Ms. Moses does not argue that she was not
given sufficient time to respond to Appellees’ motions. Accordingly, we will consider
this issue under the standard applicable to motions for summary judgment.
Summary judgment is appropriate where: (1) there is no genuine issue with regard
to the material facts relevant to the claim or defense contained in the motion; and (2) the
moving party is entitled to judgment as a matter of law on the undisputed facts. Tenn. R.
Civ. P. 56.04. On appeal, this Court reviews a trial court’s grant of summary judgment de
novo with no presumption of correctness. Rye v. Women’s Care Ctr. of Memphis,
MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015) (citing Bain v. Wells, 936 S.W.2d 618, 622
(Tenn. 1997)), cert. denied, 136 S. Ct. 2452, 195 L. Ed. 2d 265 (2016). In reviewing the
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trial court’s decision, we must view all of the evidence in the light most favorable to the
nonmoving party and resolve all factual inferences in the nonmoving party’s favor.
Luther v. Compton, 5 S.W.3d 635, 639 (Tenn. 1999); Muhlheim v. Knox Cnty. Bd. of
Educ., 2 S.W.3d 927, 929 (Tenn. 1999). If the undisputed facts support only one
conclusion, then the court’s summary judgment will be upheld because the moving party
was entitled to judgment as a matter of law. See White v. Lawrence, 975 S.W.2d 525,
529 (Tenn. 1998); McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995). When a moving
party has filed a properly supported motion for summary judgment, the nonmoving party
must respond by pointing to evidence that shows summary judgment is inappropriate.
Rye, 477 S.W.3d at 264–65.
We begin first with the applicable statute of limitations. Here, Ms. Moses does not
dispute that her claims involve personal torts and/or civil rights claims. Accordingly, they
are governed by a one-year statute of limitations. See Tenn. Code Ann. § 28-3-104(a)(1)
(providing a one year statute of limitations for claim involving “injuries to the person”
and “civil actions for . . . damages . . . brought under federal civil rights statutes”). There
is also no dispute that Ms. Moses’s initial petition was filed within the applicable statute
of limitations. Rather, Appellees argue that notwithstanding the timely filing of Ms.
Moses’s initial petition, Ms. Moses cannot now rely on that filing to toll the statute of
limitation because process was not issued within one year of the filing.
In order to resolve this issue, we first look to the plain language of Rule 3 of the
Tennessee Rules of Civil Procedure. See generally Mills v. Fulmarque, Inc., 360 S.W.3d
362, 368 (Tenn. 2012) (outlining “the familiar rules of statutory construction” and
directing courts to look to the plain language of a statute and construe its words
consistent with their natural and ordinary meaning). Rule 3 reads:
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 of the complaint.
Thus, Rule 3 contemplates two situations related to unserved summonses with regard to
tolling the statute of limitations. First, where a summons is issued, but not served within
ninety days of issuance, the plaintiff must obtain new process within one year of the
issuance of the previous process. Where, however, no summons was issued within ninety
days of the filing of the complaint, the plaintiff must obtain issuance of process within
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one year of the filing of the complaint. In either situation, the onus is placed upon the
plaintiff to “obtain[] issuance of process[.]” If the plaintiff fails to comply with Rule 3,
the statute of limitations is not tolled by the “original commencement.”
Here, Ms. Holt’s affidavit shows that no summons was issued to Appellees within
ninety days of the filing of Ms. Moses’s initial petition. Ms. Moses has offered no
evidence to dispute Ms. Holt’s statements, and we therefore accept them for purposes of
summary judgment. Rather than obtain issuance of a summons, it appears that Ms. Moses
instead chose to remove her action to federal court a mere thirteen days after the initial
petition was filed; the case was later remanded back to state court as improperly
removed. In order to comply with Rule 3, however, Ms. Moses was required to obtain
issuance of process within one year of the filing of her initial complaint. Again, based
upon the affidavits of Ms. Holt, there can be no dispute that Ms. Moses did not obtain
issuance of a summons within one year of the filing of her initial petition. The facts in
this case are therefore highly analogous to the situation presented in First Tennessee
Bank, N.A. v. Dougherty, 963 S.W.2d 507 (Tenn. Ct. App. 1997). In Dougherty, the
plaintiff timely filed its complaint and obtained issuance of several summonses. Id. at
507–08. The summonses, however, were not served within the time allowed, and the
plaintiff did not obtain the issuance of a new summons within the times provided by Rule
3 in effect at the time.4 As such, the Court held that the plaintiff was unable to rely on the
original commencement of the action to toll the statute of limitations. Id. at 508. The
4
Dougherty was decided under a different version of Rule 3 allowing plaintiffs only thirty days
to serve their summonses. The version of Rule 3 applicable in Dougherty provided:
Rule 3. Commencement of Action. All civil actions are commenced by filing a
complaint and summons with the clerk of the court. An action is commenced within the
meaning of any statute of limitations upon such filing of a complaint and summons,
whether process be issued or not issued and whether process be returned served or
unserved. If process remains unissued for 30 days or is not served or is not returned
within 30 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
either;
(1) Continues the action by obtaining issuance of new process within 6 months
from issuance of the previous process or, if no process issued, within 6 months from the
filing of the complaint or summons, or
(2) Recommences the action within 1 year from the issuance of the original
process, or if no process issued, within 1 year from the filing of the original complaint
and summons.
Dougherty, 963 S.W.2d at 508 (citing Tenn. R. Civ. P. 3 (1997)). Other provisions of Rule 3, such as the
requirement to return service, are likewise no longer applicable. See Fair v. Cochran, 418 S.W.3d 542,
546–47(Tenn.2013) (holding that the failure to return proof of service of a summons does not preclude
the plaintiff's ability to rely on the commencement date of suit to toll the statute of limitations). Although
the time limits and other portions of Rule 3 have changed, the rule expressed in Dougherty regarding the
effect of non-compliance with Rule 3 is equally applicable in this particular case.
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same is true in this case. No process was issued within ninety days of the filing of Ms.
Moses’s petition as required by Rule 3. Because no process was thereafter issued within
one year of the commencement of this action, Ms. Moses cannot rely on her initial
petition to toll the applicable statute of limitations.
Ms. Moses has proffered several arguments to excuse her failure. First, she asserts
that it was the clerk’s responsibility to issue a summons pursuant to Rule 4 of the Rules
of the Tennessee Supreme Court. Rule 4.01 indeed states: “Upon the filing of the
complaint, the clerk of the court shall promptly issue the required summons and cause it,
with necessary copies of the complaint and summons, to be delivered for service to any
person authorized to serve process.” The Dougherty Court, however, rejected a similar
argument, stating:
We are of the opinion that Rules 3 and 4 address differing concepts and are
not inconsistent in any way. Rule 3 is directed toward commencement of
actions; when the commencement tolls the statute of limitations; and the
circumstances under which the plaintiff may prevent the statute of
limitations from running. The provisions of Rule 3 are clear and
unambiguous. Giving the words their natural meaning, if process is not
returned within [the time prescribed by Rule 3], regardless of the reason
the plaintiff cannot rely upon the original commencement to toll the
running of the statute of limitations [unless one of the exceptions expressly
stated in Rule 3 is met].
Dougherty, 963 S.W.2d at 509. Thus, “regardless of the reason” that process is unserved
or unissued “‘the plaintiff cannot sit idly by when confronted with such a situation.’” Id.
(quoting Adams v. Carter County Mem. Hosp., 548 S.W.2d 307, 309 (Tenn.1977)).
Rather, the plaintiff must “‘must apply for and obtain issuance of new process’” to toll
the applicable statute of limitations. Dougherty, 963 S.W.2d at 509 (quoting Adams, 548
S.W.2d at 309). As such, Rule 3 places the duty on Ms. Moses, rather than the clerk, to
obtain issuance of process to toll the statute of limitations.
Ms. Moses also appears to argue that the statute of limitations on her claims
should be tolled while her petition was removed to federal court. Relatedly, Ms. Moses
argues that this Court should allow her claim because of “extraordinary circumstances.”
Respectfully, we cannot agree. First, we note that Rule 3 clearly states that it is
applicable “regardless of the reason” that service was not timely issued or served. Tenn.
R. Civ. P. 3. Indeed, this Court has previously held that the only exceptions to Rule 3’s
requirements are stated therein. See Dougherty, 963 S.W.2d at 508. Other than a citation
to Rule 4 of the Federal Rules of Civil Procedure, Ms. Moses cites no law, federal or
otherwise, that supports an argument that the plain language of Rule 3 of the Tennessee
Rules of Civil Procedure should not apply in this circumstance. The Tennessee Supreme
Court has noted that “[c]ourts have routinely held that the failure . . . to cite relevant
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authority in the argument section of the brief as required by Rule 27(a)(7) constitutes a
waiver of the issue.” Bean v. Bean, 40 S.W.3d 52, 55 (Tenn. Ct. App. 2009) (citing
cases). “It is not the role of the courts, trial or appellate, to research or construct a
litigant’s case or arguments for him or her, and where a party fails to develop an
argument in support of his or her contention or merely constructs a skeletal argument,
the issue is waived.” Sneed v. Bd. of Prof’l Responsibility of Sup. Ct., 301 S.W.3d 603,
615 (Tenn. 2010). Finally, we note that it was Ms. Moses’s own actions that removed her
case to federal court; indeed, the federal court remanded the action to state court because
Ms. Moses’s removal was improper. See generally In re Mortg. Elec. Registration Sys.,
Inc., 680 F.3d 849, 853 (6th Cir. 2012) (holding that only defendants may remove actions
to federal court). Given that Ms. Moses has cited no law in support of her argument, we
conclude that the removal to federal court did not result in “extraordinary circumstances”
that would allow Ms. Moses to avoid the plain language of Rule 3.
Finally, Ms. Moses argues that the statute of limitations should be tolled because
she issued and served process on Appellees with regard to her supplemental petition. As
an initial matter, we note that despite a thorough review of the record, we were unable to
find any summons issued on Ms. Moses’s supplemental petition. Still, Appellees do not
assert that no summons was issued or served with regard to Ms. Moses’s supplemental
petition.5 Rather, Appellees argue that Ms. Moses was not permitted to file a
supplemental petition in this case and that, accordingly, service thereupon does not serve
to correct Ms. Moses’s initial failure to issue and serve a summons on her initial petition.
We agree.
Pursuant to Rule 15.04 of the Tennessee Rules of Civil Procedure:
Upon motion of a party the court may, upon reasonable notice and upon
such terms as are just, permit the party to serve a supplemental pleading
setting forth transactions or occurrences or events which have happened
since the date of the pleading sought to be supplemented. Permission may
be granted even though the original pleading is defective in its statement of
a claim for relief or defense. If the court deems it advisable that the adverse
party plead to the supplemental pleading, it shall so order, specifying the
time therefor.
Thus, while parties may generally file amended complaints or amendments to their
complaint any time before a responsive pleading is filed, parties must obtain permission
from the trial court to file pleadings seeking to set forth facts regarding “transactions or
occurrences or events which have happened since the date of the pleading sought to be
supplemented.” Tenn. R. Civ. P. 15.04. But see Tenn. R. Civ. P. 15.01 (“A party may
amend the party’s pleadings once as a matter of course at any time before a responsive
5
Ms. Holt’s affidavit is limited only to Ms. Moses’s initial petition.
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pleading is served or, if the pleading is one to which no responsive pleading is permitted
and the action has not been set for trial, the party may so amend it at any time within 15
days after it is served.”).
Here, Ms. Moses’s supplemental pleading alleged occurrences that took place no
earlier than 2015. Because her initial petition was filed in 2014, Ms. Moses’s
supplemental petition seeks to include facts concerning events occurring after the filing
of her initial petition. Rule 15.04 is therefore clearly applicable and requires that Ms.
Moses obtain the trial court’s permission to file her supplemental pleading. Again, Ms.
Moses cites no authority to support an argument that the requirements of Rule 15.04 may
be waived in this situation or that the filing of this supplemental pleading is sufficient to
correct Ms. Moses’s failure to issue a timely summons on her initial petition as required
by Rule 3. C.f. Ballard v. Ardenhani, 901 S.W.2d 369, 371 (Tenn. Ct. App. 1995)
(holding that the filing of an amended complaint and its service upon defendant’s counsel
was insufficient to bring the plaintiff into compliance with Rule 3 when no summons was
timely served as to the original complaint). As such, we again decline to hold that Ms.
Moses’ improper filing of a supplemental petition is sufficient to bring her into
compliance with Rule 3.
Based on the foregoing, we affirm the trial court’s ruling that Ms. Moses’s failed
to issue summons on her initial petition within one year of the commencement of her
action. Ms. Moses’s initial petition therefore did not toll the applicable statute of
limitations, and the trial court did not err in dismissing her initial petition based upon the
expiration of the statute of limitations. The judgment of the Shelby County Chancery
Court is therefore affirmed, and this cause is remanded to the trial court for further
proceedings consistent with this Opinion. Costs of this appeal are taxed to Appellant
Pamela Moses, for which execution may issue if necessary.
_________________________________
J. STEVEN STAFFORD, JUDGE
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