Assigned on Briefs January 18, 2018
from the Circuit Court for Campbell County No. 15898 John D.
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
R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit
Court Affirmed in Part, Vacated in Part; Case
W. Knolton, Oak Ridge, Tennessee, for the appellant
Renee Herman. Dail R. Cantrell, Clinton, Tennessee, for the
appellee, John Edwards.
R. Frierson, II, J., delivered the opinion of the court, in
which D. Michael Swiney, C.J., and Charles D. Susano, Jr.,
R. FRIERSON, II, JUDGE
Factual and Procedural Background
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.
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. Accordingly, Ms. Herman sought dismissal
of the action pursuant to Tennessee Rule of Civil Procedure
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
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.)
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.
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.
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 ...