GREGORY WEBSTER ET AL.
DAVID M. ISAACS
Session July 9, 2019
from the Circuit Court for Davidson County No. 16C-2930
Joseph P. Binkley, Jr., Judge
trial court granted the defendant's motion for summary
judgment and dismissed the plaintiffs' negligence suit on
the grounds that the plaintiffs failed to serve the defendant
with process within the one-year statute of limitations. On
appeal, we conclude that the trial court did not err in
denying the plaintiffs' motion to enlarge the time frame
for obtaining new service of process or in granting the
defendant's motion for summary judgment. We, therefore,
affirm the decision of the trial court in all respects.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
A. Rutherford and Wende J. Rutherford, Nashville, Tennessee,
for the appellants, Gregory E. Webster and Suzette Webster.
Evan Shelby, Jordan Kennamer Gibson, and Jennifer Vallor Ivy,
Nashville, Tennessee, for the appellee, David M. Isaacs.
D. Bennett, J., delivered the opinion of the Court, in which
Richard H. Dinkins and J. Steven Stafford, P.J., W.S.,
D. BENNETT, JUDGE
and Procedural Background
E. Webster and David M. Isaacs were involved in an automobile
accident on November 9, 2015, in Nashville. Mr. Webster and
his wife, Suzette, filed a negligence suit against Mr. Isaacs
on November 3, 2016, and service of process issued the next
day. On November 14, 2016, the summons was returned unserved
with the following notation: "David M. Isaacs is not to
be found in my County. (Does Not Reside)."
for Mr. Isaacs entered a Notice of Special Appearance on
December 16, 2016. The notice specified that, "All
defenses related to jurisdiction, venue, service of process
or sufficiency of process, are hereby reserved." Mr.
Isaacs filed an answer on January 24, 2017, in which he
included as an affirmative defense "that service of
process in this action was insufficient" and that
"he was not personally served with process." The
parties participated in several case management conferences
and completed some discovery. On January 18, 2018, the
Websters had another summons issued and obtained service of
process on Mr. Isaacs the same day.
February 6, 2018, Mr. Isaacs filed a motion to dismiss
arguing that the plaintiffs failed to serve him with process
within a year of filing suit and, therefore, the suit was
time-barred under Tenn. Code Ann. § 28-3-104(a)(1),
which provides for a one-year statute of limitations in
actions for "injuries to the person." Mr. Isaacs
then filed an amended answer on February 16, without leave of
court, in which he asserted the affirmative defense of the
statute of limitations for the first time. He filed a
supplemental motion to dismiss adding the statute of
limitations argument. On July 10, 2018, the trial court
denied Mr. Isaacs's motion to dismiss without prejudice
24, 2018, the Websters filed a motion for enlargement,
pursuant to Tenn. R. Civ. P. 6.02, asking the court to
enlarge the 12-month time frame set forth in Tenn. R. Civ. P.
for obtaining new service of process, based on the excusable
neglect of plaintiffs' counsel. In support of their
motion, the Websters submitted an affidavit of their counsel
detailing the timeline of the litigation, including the
filing of the defendant's January 24, 2017 answer, and
8. In preparation for the January 18, 2018 Status Conference,
I reviewed the file and learned that service of process was
not effected upon the Defendant when first issued. I then
prepared an alias summons after searching the internet for
Defendant's work address. . . . The Return of Service was
filed with the Court clerk immediately thereafter. Later that
day at 12:30 pm, the Case Management Conference was held via
telephone conference. There was no discussion of the issue
[of] service of process. The resulting Order required that
written discovery be completed by April 1, 2018.
Plaintiffs' answers to discovery were delayed solely due
to his prolonged treatment course. Plaintiff propounded
written discovery upon Defendant on January 26, 2018.
Defendant participated in answering written discovery and
submitted answers under oath through counsel to
Plaintiff's counsel on February 16, 2018. Both parties
subsequently supplemented their answers to written discovery
upon request. I submit that the delay in service of process
had no negative impact or delay upon the proceedings.
Further, I acted in good faith and made effort to mitigate
the oversight the same day it was realized, though it is
conceded that the oversight was within my control.
9. Defendant initially filed his Motion to Dismiss through
counsel on February 6, 2018. Plaintiffs filed their Response
in Opposition thereto on February 12, 2018. Defense counsel
notified me shortly thereafter via email and stated that he
would be removing his Motion to Dismiss from the Court's
docket. . . .
10. On February 28, 2018, Defense counsel advised me via
email that "he had no problem proceeding with
discovery." Plaintiff Gregory Webster was released in
December 2017 and I requested and obtained his impairment
rating medical notes on January 25, 2018 from his surgeon.
Having previously provided extensive and complete medical
records to Defense counsel, I prepared and tendered a demand
package to Defense counsel on April 26, 2018. Party
depositions were scheduled by agreement on ...