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Edwards v. Herman

Court of Appeals of Tennessee, Knoxville

May 16, 2018

JOHN EDWARDS
v.
PAULA RENEE HERMAN

          Assigned on Briefs January 18, 2018

          Appeal from the Circuit Court for Campbell County No. 15898 John D. McAfee, Judge

         In this personal injury action arising from an automobile-motorcycle accident, the trial court granted the plaintiff's motion to enlarge the time allowed to obtain service of process on the defendant upon finding that the plaintiff's failure to timely obtain service of process had been due to excusable neglect. Consequently, the trial court in the same order denied the defendant's motion to dismiss the plaintiff's complaint for lack of service. Upon the defendant's subsequent motion, the trial court granted permission for an interlocutory appeal, as did this Court. Upon review of the issues certified by the trial court, we affirm the trial court's utilization of Tennessee Rule of Civil Procedure 6.02 as a method of enlarging the timeframe for issuance and service of process, pursuant to Tennessee Rule of Civil Procedure 3, when the complaint was timely filed and when excusable neglect can be demonstrated. However, having concluded that the trial court made insufficient findings and conclusions regarding excusable neglect in this matter, we vacate the trial court's determination on that issue and remand this matter to the trial court for further proceedings consistent with this opinion. We also vacate the trial court's determination that the defendant would be estopped from asserting a defense based on the statute of limitations because the parties had no express agreement waiving service of process in this matter.

         Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Affirmed in Part, Vacated in Part; Case Remanded

          Robert W. Knolton, Oak Ridge, Tennessee, for the appellant

          Paula Renee Herman. Dail R. Cantrell, Clinton, Tennessee, for the appellee, John Edwards.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Charles D. Susano, Jr., J., joined.

          OPINION

          THOMAS R. FRIERSON, II, JUDGE

         I. Factual and Procedural Background

         On April 21, 2015, the plaintiff, John Edwards, filed a complaint against the defendant, Paula Renee Herman, in the Campbell County Circuit Court ("trial court"), seeking damages for personal injuries allegedly caused by Ms. Herman when the parties were involved in an automobile-motorcycle accident that had occurred in Campbell County on May 4, 2014. At the time of the complaint's filing, the trial court issued original process, and the record indicates that a summons was delivered to the Campbell County Sheriff's Department for service on Ms. Herman on April 22, 2015. It is undisputed that this original summons was never returned to the trial court and that there is no record of it having been served upon Ms. Herman. Rather, the record demonstrates that on July 21, 2016, the Campbell County Sheriff's Department sent a letter to the trial court clerk indicating that the summons, although received by the Department, could not be located. In the meantime, the trial court issued an alias summons on May 26, 2016, which was successfully served upon Ms. Herman on June 11, 2016. Such issuance and service of process undisputedly occurred after the one-year deadline contained in Tennessee Rule of Civil Procedure 3.[1]

         On June 22, 2016, Ms. Herman's counsel filed a notice of appearance. Ms. Herman subsequently filed a motion to dismiss the complaint on June 30, 2016, asserting insufficient service of process pursuant to Tennessee Rules of Civil Procedure 3 and 4. Ms. Herman contended that because Mr. Edwards had failed to timely cause process to be reissued before the one-year deadline established by Rule 3 had expired, he could not rely upon the original commencement of the action to toll the applicable statute of limitations.[2] Accordingly, Ms. Herman sought dismissal of the action pursuant to Tennessee Rule of Civil Procedure 12.02(6).

         On August 9, 2016, Mr. Edwards filed a response in opposition to the motion to dismiss and concomitantly filed a motion for an extension of time to obtain service of process pursuant to Tennessee Rule of Civil Procedure 6.02. Claiming excusable neglect, Mr. Edwards attached to the motion for extension affidavits executed by his counsel and his counsel's assistant. Mr. Edwards's counsel, Dail Cantrell, stated in his affidavit in pertinent part:

Sometime in the month of February, 2016, as I was doing a file review, I discovered that I had not yet received a response to the Complaint from the Defendant, despite the fact that I had been in communication with the Defendant's insurance carrier, both by phone and by letter, and despite the fact that I had sent a copy of the lawsuit to the Defendant's insurance carrier.
As a result, I contacted the Office of the Circuit Court Clerk for Campbell County, Tennessee, in order to determine the date process was effectuated.
I spoke to someone in the Clerk's Office, and was told that the Summons had not yet been returned as "served or not served."
I was further told that the Clerk would not Issue an Alias Summons until either (1) the Campbell County, Tennessee, Sheriff's Department returned the Summons to the Circuit Court Clerk, or (2) the Campbell County, Tennessee, Sheriff's Department issued a letter/Affidavit stating that the Summons had been lost.
It was my understanding from speaking with the Clerk's Office that I would be notified as soon as they heard from the Sheriff's Department.
Some time passed and, after not hearing back from the Clerk's Office, I had one of my staff members contact them in May, 2016.
My staff member was told that we could then file the Alias Summons, which led me to believe that the letter/Affidavit, stating that the Summons had been lost, from the Campbell County, Tennessee, Sheriff's Department had been received by the Clerk's Office.

(Original paragraph numbering omitted.)

         The affidavit executed by Mr. Cantrell's assistant stated, inter alia, that she contacted the trial court clerk's office in May 2016 and was then told that an alias summons could be submitted in this matter. She likewise affirmed that she had been told numerous times by employees of the trial court clerk's office that an alias summons could not be issued until the previous summons had been returned by the Campbell County Sheriff's Department or the Sheriff's Department had sent a letter stating that the summons was lost.

         On August 24, 2016, Ms. Herman filed a response objecting to the motion for extension, arguing, inter alia, that the trial court lacked discretion to grant a motion that would essentially enlarge the statute of limitations period when the court had not obtained personal jurisdiction over Ms. Herman within the requisite timeframe due to insufficient service of process. Mr. Edwards subsequently filed a reply, asserting that his motion did not seek extension of the statute of limitations because his complaint was timely filed within one year of the accident. Rather, Mr. Edwards posited that he simply sought an extension of time with regard to the issuance and service of a summons.

         Following a hearing conducted on December 7, 2016, the trial court entered an order on February 9, 2017, granting Mr. Edwards's motion "to enlarge the time allowed to obtain service of process upon [Ms. Herman.]" In granting the motion, the court found that Mr. Edwards had established excusable neglect, pursuant to Tennessee Rule of Civil Procedure 6.02, concerning his failure to have a summons reissued and served within one year. In reaching this conclusion, the court relied on the "facts outside of the record" that had been included in the affidavits attached to Mr. Edwards's motion for an extension. The court specifically found in pertinent part:

It appears that, in support of [Mr. Edwards's] motion for extension of time within which to file an alias summons to be served upon [Ms. Herman], facts outside of the record were submitted by [Mr. Edwards] through Affidavit of counsel and his legal assistant, and which facts outside of the record were not denied as such, by [Ms. Herman]. The court, therefore, makes the following findings of fact that occurred outside of the record, which facts are asserted in [Mr. Edwards's] response to the Motion to Dismiss, as well as in [Mr. Edwards's] Motion for Extension of Time, and which facts were not denied by [Ms. Herman]:
(a) That [Mr. Edwards's] counsel wrote to the liability insurance carrier of [Ms. Herman], advising of his representation of ...

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