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Webster v. Isaacs

Court of Appeals of Tennessee, Nashville

August 21, 2019


          Session July 9, 2019

          Appeal from the Circuit Court for Davidson County No. 16C-2930 Joseph P. Binkley, Jr., Judge

         The 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Paul A. Rutherford and Wende J. Rutherford, Nashville, Tennessee, for the appellants, Gregory E. Webster and Suzette Webster.

          Nathan Evan Shelby, Jordan Kennamer Gibson, and Jennifer Vallor Ivy, Nashville, Tennessee, for the appellee, David M. Isaacs.

          Andy D. Bennett, J., delivered the opinion of the Court, in which Richard H. Dinkins and J. Steven Stafford, P.J., W.S., joined.



         Factual and Procedural Background

         Gregory 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)."

         Counsel 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.

         On 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 to refiling.

         On May 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. 3[1] 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 stating:

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 ...

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