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Wright v. Shoney's Tenn1 LLC

Court of Appeals of Tennessee, Nashville

July 28, 2015

DIANE R. WRIGHT, ET AL.
v.
SHONEY'S TENN1 LLC.

Session January 23, 2015

Appeal from the Circuit Court for Davidson County No. 11C3695 Hamilton V. Gayden, Jr., Judge

Rebecca T. Garland, Nashville, Tennessee, for the appellant, Diane R. Wright and Richard Wright.

Thomas J. Dement, II, Nashville, Tennessee, for the appellee, Shoney's Tenn. 1, LLC.

Richard H. Dinkins, J., delivered the opinion of the court, in which Andy D. Bennett and W. Neal McBrayer, JJ., joined.

OPINION

RICHARD H. DINKINS, JUDGE

I. Factual and Procedural History

This is an appeal from the trial court's dismissal of Plaintiffs' suit based upon a finding that Plaintiffs intentionally delayed service of process, in contravention of Tenn. R. Civ. P. 4.01(3) and that, consequently, the filing of the complaint was ineffective. The suit arises from injuries allegedly sustained by Diane Wright after she slipped and fell in the salad bar line at a Shoney's restaurant in Nashville on February 27, 2007. Ms. Wright and her husband ("Plaintiffs") timely filed suit against Shoney's Tenn1 LLC. ("Defendant") in February 2008. Plaintiffs filed a Notice of Voluntary Non-Suit on September 13, 2010, and the court entered an Order of Dismissal without prejudice on September 17. According to an affidavit filed by Plaintiffs' counsel, Plaintiffs re-filed the complaint on September 16, 2011 and attempted service of the complaint by certified mail; no card evidencing receipt of the Complaint was returned to Plaintiffs' counsel. Plaintiffs caused a subsequent summons to be issued on September 13, 2012; the record does not show the reason that it was not served.

On May 2, 2013, the court notified the parties that, because the suit had been pending for more than one year, it "shall be dismissed unless within the next thirty (30) days, the following takes place: (1) A motion to set is filed and heard . . . or (2) Specific permission is obtained from the court for this case to be exempted from this one (1) year rule." On May 24, Plaintiffs filed a Motion to Exempt from the One Year Rule, stating that:

1) Plaintiff has attempted service through the issuance of an original summons and attempted service through certified mail on the registered agent listed with the Secretary of State of Tennessee but the green card evidencing service was not returned.
2) Plaintiff undertook an investigation on the web site of the Us.Postal service [sic] but was not able to track the certified receipt number.
3) Plaintiff does expect to have personal service on the Registered Agent of Defendant prior to June 1, 2013 and will find [sic] evidence withe [sic] the Court.
4) This Complaint was filed after a volantary [sic] non=suit [sic] by the Plaintiffs and extensice [sic] discovery has been completed in the prior action. While updated discovery, including expert identification will need to be completed, it is anticipated that once service is ...

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