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Villalba v. McCown

Court of Appeals of Tennessee, Knoxville

August 30, 2019


          Session May 21, 2019

          Appeal from the Circuit Court for Hamilton County No. 17C1151 Kyle E. Hedrick, Judge

         In this personal injury action arising from an automobile accident, the trial court granted summary judgment in favor of the defendant upon finding that the plaintiffs had failed to demonstrate service of process in the originally filed action, which had been dismissed, such that the plaintiffs' refiled action was barred by the applicable statute of limitations. The plaintiffs have appealed. Having determined that, pursuant to the version of Tennessee Rule of Civil Procedure 4.04(11) in effect at the time that the initial complaint was filed, the plaintiffs demonstrated valid service of process of the initial complaint, we reverse the grant of summary judgment to the defendant and grant partial summary judgment to the plaintiffs concerning the affirmative defenses of ineffective service of process and expiration of the statute of limitations. We remand this action for further proceedings consistent with this opinion.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed; Case Remanded.

          Mark N. Foster, Madisonville, Kentucky, for the appellants, Nina Villalba and Marcelo Villalba.

          Robert J. Uhorchuk and David L. Barry, Chattanooga, Tennessee, for the appellee, Ciara McCown.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and John W. McClarty, J., joined.



         I. Factual and Procedural Background

         This action arose from an automobile accident that occurred in Hamilton County, Tennessee, on October 17, 2014, involving the plaintiffs, Nina Villalba and Marcelo Villalba, and the defendant, Ciara McCown. No dispute concerning the accident itself is at issue on appeal. Instead, at issue is the sufficiency of service of process of a complaint in an earlier action ("First Complaint") that had been dismissed and the effect of that dismissed action on the applicable statute of limitations for the instant personal injury claim. See Tenn. Code Ann. 28-3-104(a)(1)(A) (Supp. 2018) (providing a one-year statute of limitations for "injuries to the person" such as that alleged in the instant action).

         As the trial court noted in its final judgment, "[t]here is no question that return of service was not filed prior to the dismissal of the initial complaint." The court summarized the procedural history surrounding the First Complaint as follows:

[The Villalbas] filed a complaint on October 14, 2015 and a summons was issued on the same date (Docket No. 15C1230). No Answer was filed. No return of service was made. [Ms. McCown] made no appearance in the litigation. No motion for default judgment was filed. In fact, nothing at all was filed on this case. Subsequently, the case came up on the procedural steps list on September 16, 2016, pursuant to Rule 7.05 of the Eleventh Judicial District Local Rules of Practice. This list contains inactive cases. Still, no action was taken in this matter by [the Villalbas] and no appearance entered by [Ms. McCown]. Consequently, and pursuant to Local Rule 7.05, an Order was entered on October 17, 2016 dismissing the case without prejudice. At the time of the dismissal, no return of service had been made and no evidence of service of process existed in the Court file.

         The Villalbas commenced the instant action by filing a complaint in the trial court on October 17, 2017 ("Second Complaint"), one year after the First Complaint was dismissed. They alleged, inter alia, that Ms. McCown had been negligent in the operation of her motor vehicle and that Ms. Villalba had suffered injuries to her "shoulder, neck, back, and hand" as "a direct and proximate result" of Ms. McCown's negligence. The Villalbas requested damages for Ms. Villalba's "permanent impairment, loss of enjoyment of life, pain and suffering, lost wages, loss of earning capacity, and physical and mental anguish." They also claimed loss of consortium for Mr. Villalba. It is undisputed that, as the trial court noted, process for the Second Complaint was "issued, served and returned."

         On December 11, 2017, Ms. McCown, represented by counsel, made a special appearance to contest service of process concerning the First Complaint. In a concomitantly filed motion for additional time to answer the Second Complaint, Ms. McCown referenced the need to review the procedural history of the previous action. In response, the Villalbas filed a "Motion to Bifurcate Trial and Proceedings," requesting that any affirmative defenses set forth by Ms. McCown be tried separately.

         On January 12, 2018, Ms. McCown filed a motion to dismiss the Second Complaint, denying all substantive allegations and asserting, as pertinent to this appeal, the affirmative defenses of insufficient service of process and expiration of the statute of limitations. See Tenn. R. Civ. P. 8.03 (including "statute of limitations" among affirmative defenses); Allgood v. Gateway Health Sys., 309 S.W.3d 918, 925 (Tenn. Ct. App. 2009) ("Insufficiency of service of process is an affirmative defense . . . ." (citing Tenn. R. Civ. P. 12.02(5)). Ms. McCown attached several exhibits to her motion to dismiss, including copies of the First Complaint and the October 2016 dismissal order from the trial court's "Procedural Steps List." Ms. McCown also attached a copy of a summons and return that had been filed by the Villalbas on October 19, 2016, two days after entry of the dismissal order. The return was signed by the Villalbas' counsel and stated that on October 19, 2015, counsel had served the summons and complaint upon Ms. McCown "by mailing a copy to Ciarra [sic] McCown by certified mail, which Ciarra McCown agreed to accept as service of process. The mail was returned 'unclaimed'; it is attached hereto as Exhibit A."[1] The record demonstrates that also attached to the return was a copy of the certified mail card, marked by the United States Postal Service ("USPS") as "Return to Sender Unclaimed" and dated November 11, 2015.

         In addition, Ms. McCown attached to her motion to dismiss copies of a motion filed by the Villalbas to alter or amend the October 2016 dismissal order and the trial court's order striking the motion to alter or amend. In the motion to alter or amend, filed on November 16, 2016, the Villalbas had asserted as grounds that they "would show that this matter is not a dormant case" because Ms. McCown "was served with process, and a return has been filed with the Court." The trial court, with Judge L. Marie Williams presiding, had called the motion on its docket on November 28, 2016, and subsequently had entered an order striking the motion to amend on January 12, 2017, stating in pertinent part:

The Court finds that [the Villalbas] failed to appear during the call of the docket and failed to prosecute the Motion or seek any relief from the Court. Accordingly, due to [the Villalbas'] failure to appear and for good cause shown, the Court finds that [the Villalbas'] Motion should be struck from the record.

         As to the procedural history of the Second Complaint, the Villalbas filed a response to Ms. McCown's motion to dismiss on January 19, 2018, and concomitantly filed a motion to strike Ms. McCown's "sixth defense," which had been based on insufficient service of process. The Villalbas asserted that Ms. McCown had waived this defense by failing to plead it in response to the First Complaint. Alternatively, the Villalbas requested that the trial court treat Ms. McCown's motion to dismiss as a motion for summary judgment and ultimately deny the motion upon the Villalbas' presentation of "genuine issues of material fact regarding whether [Ms. McCown] was served in the previous action."

         The Villalbas attached to this response a declaration executed by their counsel on January 18, 2018, stating that in an attempt to serve process on Ms. McCown, he had left a note on the front door of her residence on October 14, 2015, and that Ms. McCown had telephoned him in response the following day. According to the Villalbas' counsel, Ms. McCown agreed during this telephone conversation to be served with process via United States mail at her residence. Counsel further stated that on "October 19, 2015, [he] mailed via certified mail copies of the summons and complaint to [Ms. McCown] at the address she requested [he] send them," along with a cover letter. According to counsel, this mailing was returned to him by the USPS with the notation that it was "unclaimed." Ms. McCown filed a response in which she insisted that she had not waived the affirmative defense of insufficient service of process because the timeliness of the Second Complaint was dependent upon effective service of process of the First Complaint.

         On February 8, 2018, the trial court entered an "Order on Motions," inter alia, converting Ms. McCown's motion to dismiss to a motion for summary judgment. The court also continued the Villalbas' motion to bifurcate and motion to strike the affirmative defense to be heard with Ms. McCown's motion for summary judgment.[2]

         Ms. McCown filed a motion for summary judgment on March 6, 2018, together with supporting materials, asserting in her motion that summary judgment should be granted in her favor "based on the failure of the [Villalbas] to secure effective service on [Ms. McCown] pertaining to their First Complaint . . . ." Ms. McCown further asserted that ineffective service of the First Complaint barred application of Tennessee's general savings statute, codified at Tennessee Code Annotated § 28-1-105 (2017) ("the savings statute"). Included in the supporting materials were "declarations" executed by Ms. McCown and her mother. In her declaration, Ms. McCown acknowledged that she had spoken to the Villalbas' counsel on October 15, 2015, via telephone, although she stated that the Villalbas' counsel had initiated the call. Ms. McCown further stated in relevant part:

During the October 15, 2015 phone conversation Mark N. Foster identified himself as counsel for the [Villalbas] and asked me questions about the motor vehicle accident between myself and the [Villalbas].
To the best of my knowledge and belief, during the October 15, 2015 phone conversation, there was no discussion about service of process upon me via U.S. mail.
To the best of my knowledge and belief, I did not agree or request service of process by U.S. mail.
To the best of my knowledge and belief, during the October 15, 2015 phone conversation, I did not provide an address for service of process by U.S. mail.

         (Paragraph numbering omitted.) Ms. McCown's mother stated in her declaration that she had overheard the October 15, 2015 telephone conversation between her daughter and the Villalbas' counsel and had not heard any discussion of service of process via United States mail.

         On May 29, 2018, the Villalbas filed a "Motion for Summary Judgment on Defendant's Affirmative Statute of Limitations Defense," also requesting summary judgment as to the affirmative defense of insufficiency of ...

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