NINA VILLALBA ET AL.
Session May 21, 2019
from the Circuit Court for Hamilton County No. 17C1151 Kyle
E. Hedrick, Judge
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.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Reversed; Case Remanded.
N. Foster, Madisonville, Kentucky, for the appellants, Nina
Villalba and Marcelo Villalba.
J. Uhorchuk and David L. Barry, Chattanooga, Tennessee, for
the appellee, Ciara McCown.
R. Frierson, II, J., delivered the opinion of the court, in
which D. Michael Swiney, C.J., and John W. McClarty, J.,
R. FRIERSON, II, JUDGE
Factual and Procedural Background
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).
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.
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."
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.
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." 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,
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
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
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."
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.
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
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
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.
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.
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 ...