Darrell L. Edwards v. Seleta Kaye Campbell

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

November 2000 Session

DARRELL L. EDWARDS, ET AL. v. SELETA KAYE CAMPBELL, ET AL.

Appeal from the Circuit Court for Hamilton County

No. 97 CV 0587 Jacqueline E. Schulten, Judge

FILED JANUARY 23, 2001

No. E2000-01463-COA-R3-CV

The Trial Court granted Defendants summary judgment based on the expiration of the statutes of

limitation because of Plaintiffs’ failure to comply with Tenn. R. Civ. P. 3 and 4.04. Plaintiffs sued

Defendants for personal injuries and property damage allegedly resulting from a 1989 motor vehicle

accident. Plaintiffs first filed suit in 1990. They voluntarily dismissed that suit in 1996 and re-filed

within one year. Plaintiffs obtained issuance of the first set of summons in the second suit in March

1997, and attempted service of process by mail. A third person, but neither defendant, signed the

return mail receipts. Defendants raised the defense of insufficiency of service of process in their

answer and moved for a stay of the proceedings which was granted. The Trial Court conditioned

the removal of the stay upon Plaintiffs’ payment of costs associated with their first lawsuit. Two

years later, Plaintiffs paid the costs, and the Trial Court lifted the stay. Thereafter, Plaintiffs

obtained issuance of new process. It is undisputed that Defendants were served in October 1999.

Defendants filed a Motion for Summary Judgment arguing that the statutes of limitation had expired

because Plaintiffs failed to serve Defendants in March 1997, and did not obtain issuance of new

process from the Trial Court clerk until more than two and a half years later. Plaintiffs did not

respond to Defendants’ motion which the Trial Court granted. Plaintiffs appeal. We affirm.

Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed; Case Remanded.

D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HOUSTON M. GODDARD, P.J.,

and HERSCHEL P. FRANKS, J., joined.

Jesse O. Farr, Chattanooga, Tennessee, for the Appellants, Darrell L. Edwards and Arlene Edwards.

Donald W. Strickland, Chattanooga, Tennessee, for the Appellees, Seleta Kaye Campbell and Fisher

Campbell.

OPINION

Background

This appeal arises from a grant of summary judgment by the Trial Court to Seleta

Kaye Campbell and Fisher Campbell ("Defendants"). Darrell L. Edwards and Arlene Edwards

("Plaintiffs") filed suit claiming personal injury and property damage allegedly resulting from a

motor vehicle accident between Seleta Kaye Campbell and Darrell L. Edwards. The accident

occurred in 1989, and Plaintiffs filed their first suit in 1990. After nearly six years, Plaintiffs non-

suited their first suit on March 11, 1996. Thereafter, Plaintiffs timely re-filed their complaint under

the savings statute on March 10, 1997. The Trial Court clerk issued summonses which listed an

address in Hixson, Tennessee, for both Defendants. One week later, Plaintiffs' counsel filed

affidavits of service of process and the return mail receipts which had been signed by “Peggy

Campbell.” The record does not indicate what relationship, if any, Peggy Campbell has with

Defendants.

On April 9, 1997, Defendants filed an answer alleging the affirmative defense of

insufficiency of service of process. In May 1997, upon Defendants’ motion, the Trial Court entered

an Order Staying Proceedings, pursuant to Rule 41.04 of the Tennessee Rules of Civil Procedure.

The order provided that the stay would be lifted once Plaintiffs paid court costs and discretionary

costs associated with Plaintiffs’ earlier, non-suited action.

After the Order Staying Proceedings was entered, this case lay dormant for nearly two

years. In March 1999, Defendants filed a Motion to Dismiss based upon their defense of

insufficiency of service of process. In response, Plaintiffs filed a brief which failed to provide any

explanation or new facts related to the service of process by mail on Defendants. The Trial Court

denied Defendants’ motion.

In July 1999, over two years after the Trial Court imposed the stay, Plaintiffs filed

a Motion to Remove Stay since they finally had complied with the order and paid the costs.

Plaintiffs' motion included language that the stay of proceedings needed to be lifted "to [allow]

further proceedings, such as perfecting service of process upon Defendants." The Trial Court

granted Plaintiffs’ motion, and Plaintiffs, thereafter, had a second set of summons issued in

September 1999. It is undisputed that both Defendants were served in October 1999.

Defendants filed a second Motion to Dismiss based upon insufficient service of

process. This motion was denied. Defendants then filed a Motion for Summary Judgment, arguing

that the statutes of limitation had expired. In support of their motion, Defendants filed sworn

affidavits. Seleta Kaye Campbell states in her affidavit that in March 1997, she was not living at the

Hixson address listed on the first summonses but, instead, was residing in Cookeville, Tennessee.

Both Defendants state in their affidavits that they did not authorize Peggy Campbell to accept service

of a summons and complaint on their behalf, and that they were not served until October 2, 1999.

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Defendants’ Rule 56 statement of material facts (“Rule 56 statement”) filed with their

motion for summary judgment includes, in part, the following:

1) in March 1997, although Plaintiffs’ counsel filed affidavits of

service, Plaintiff’s counsel had actual notice that Defendants

had not been served since the return mail receipt had been

signed by “Peggy Campbell”;

2) Defendant, Seleta Kaye Campbell, was residing in

Cookeville, Tennessee in March 1997, instead of the Hixson

address listed on the summons;

3) Peggy Campbell was not authorized by Defendants to

accept service of process on their behalf;

4) Plaintiffs admitted in their Motion to Remove Stay that they

did not serve Defendants with the first summonses in 1997;

5) Plaintiffs requested that new process be issued by the Trial

Court clerk in September 1999; and

6) Defendants were not served until October 2, 1999.

Plaintiffs filed neither a responsive brief to Defendants’ motion nor a response to Defendants’ Rule

56 statement. The Trial Court granted Defendants’ motion for summary judgment. Plaintiffs appeal

that decision.

Discussion

Plaintiffs’ argument on appeal appears to be that the Trial Court erred in granting

summary judgment to Defendants because Plaintiffs’ service of the first summonses and complaint

in 1997 was effective under Tenn. R. Civ. P. 4.04. Plaintiffs contend that “Peggy Campbell” was

the mother and wife of Defendants and signed the return mail receipts as Defendants’ agent.

Plaintiffs also argue on appeal that Defendants’ actions are not consistent with their claim of absence

of personal jurisdiction. Defendants argue that the Trial Court’s granting of summary judgment was

proper because there is no genuine issue of material fact regarding Plaintiffs’ failure to serve

Defendants with the first set of summons and to timely obtain issuance of new process resulting in

a running of the statutes of limitation.

Our Supreme Court outlined the standard of review of a motion for summary

judgment in Staples v. CBL & Assoc., 15 S.W.3d 83 (Tenn. 2000):

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The standards governing an appellate court's review of a motion for

summary judgment are well settled. Since our inquiry involves

purely a question of law, no presumption of correctness attaches to

the lower court's judgment, and our task is confined to reviewing the

record to determine whether the requirements of Tenn. R. Civ. P. 56

have been met. See Hunter v. Brown, 955 S.W.2d 49, 50-51

(Tenn.1997); Cowden v. Sovran Bank/Central South, 816 S.W.2d

741, 744 (Tenn.1991). Tennessee Rule of Civil Procedure 56.0[4]

provides that summary judgment is appropriate where: (1) there is no

genuine issue with regard to the material facts relevant to the claim

or defense contained in the motion, see Byrd v. Hall, 847 S.W.2d 208,

210 (Tenn.1993); and (2) the moving party is entitled to a judgment

as a matter of law on the undisputed facts. See Anderson v. Standard

Register Co., 857 S.W.2d 555, 559 (Tenn.1993). The moving party

has the burden of proving that its motion satisfies these requirements.

See Downen v. Allstate Ins. Co., 811 S.W.2d 523, 524 (Tenn.1991).

When the party seeking summary judgment makes a properly

supported motion, the burden shifts to the nonmoving party to set

forth specific facts establishing the existence of disputed, material

facts which must be resolved by the trier of fact. See Byrd v. Hall,

847 S.W.2d at 215.

To properly support its motion, the moving party must either

affirmatively negate an essential element of the non-moving party's

claim or conclusively establish an affirmative defense. See McCarley

v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn.1998);

Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn.1997). If the moving

party fails to negate a claimed basis for the suit, the non-moving

party's burden to produce evidence establishing the existence of a

genuine issue for trial is not triggered and the motion for summary

judgment must fail. See McCarley v. West Quality Food Serv., 960

S.W.2d at 588; Robinson v. Omer, 952 S.W.2d at 426. If the moving

party successfully negates a claimed basis for the action, the

non-moving party may not simply rest upon the pleadings, but must

offer proof to establish the existence of the essential elements of the

claim.

The standards governing the assessment of evidence in the summary

judgment context are also well established. Courts must view the

evidence in the light most favorable to the nonmoving party and must

also draw all reasonable inferences in the nonmoving party's favor.

See Robinson v. Omer, 952 S.W.2d at 426; Byrd v. Hall, 847 S.W.2d

at 210-11. Courts should grant a summary judgment only when both

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the facts and the inferences to be drawn from the facts permit a

reasonable person to reach only one conclusion. See McCall v.

Wilder, 913 S.W.2d 150, 153 (Tenn.1995); Carvell v. Bottoms, 900

S.W.2d 23, 26 (Tenn.1995).

Staples, 15 S.W.3d at 88-89. A fact is “material” for summary judgment purposes, if it “‘must be

decided in order to resolve the substantive claim or defense at which the motion is directed.’” Luther

v. Compton, 5 S.W.3d 635, 639 (Tenn. 1999) (quoting Byrd v. Hall, 847 S.W.2d at 211).

In support of their motion for summary judgment, Defendants submitted sworn

affidavits in which they deny receiving service of the first summonses and complaint and state that

Peggy Campbell was not authorized to accept service of process on their behalf. Defendants also

state in their affidavits that they were not served until October 1999. Defendants included these

sworn statements in their Rule 56 statement to which Plaintiffs failed to file a response. Rule 56.03

of the Tennessee Rules of Civil Procedure provides that a summary judgment motion must be

accompanied by “a separate concise statement of the material facts as to which the moving party

contends there is no genuine issue for trial.” Defendants did that. Rule 56.03 also states “[a]ny party

opposing the motion for summary judgment must respond to each fact set forth by the movant

. . . .” Tenn. R. Civ. P. 56.03. Plaintiffs did not do that. This Court has held that a party’s failure

to respond to the moving party’s Rule 56 statement deems admitted the facts contained in the Rule

56 statement. Simmons v. Harris, No. M2000-00227-COA-R3-CV, 2000 WL 1586451, at * 3

(Tenn. Ct. App. Oct. 25, 2000). Plaintiffs concede the facts are not in dispute. Accordingly, we will

treat the facts contained in Defendants’ Rule 56 statement as undisputed. The only remaining issue

under Tenn. R. Civ. P. 56 is whether Defendants are entitled to judgment as a matter of law. See

Staples v. CBL & Assoc., 15 S.W.3d at 88-89.

Rule 3 of the Tennessee Rules of Civil Procedure provides, in pertinent part, the

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following:

If process remains unissued for 30 days or is not served or is not

returned within 30 days from issuance, regardless of the reason, the

plaintiff cannot rely upon the original commencement to toll the

running of a statute of limitations unless the plaintiff continues the

action by obtaining issuance of new process within one year from

issuance of the previous process or, if no process is issued, within one

year of the filing of the complaint and summons.

Rule 4.04(12) of the Tennessee Rules of Civil Procedure sets forth the requirements

of service of process by mail, in pertinent part, as follows:

1

We discuss the versions of Tenn. R. Civ. P. 3, 4 and 12 which were in effect at the time Plaintiffs obtained

issuance of the first summonses and attempted service of process by mail in 1997.

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[T]he plaintiff, the plaintiff’s attorney or other authorized person for service

by mail . . . shall send, postage prepaid, a certified copy of the summons and

a copy of the complaint by registered return receipt or certified return receipt

mail to the defendant. The original summons shall be used for return of

service of process pursuant to Rule 4.03(2). Service by mail shall not be the

basis for the entry of a judgment by default unless the record contains a return

receipt showing personal acceptance by the defendant or by persons

designated by Rule 4.04 or by statute. If service by mail is unsuccessful, it

may be tried again or other methods authorized by these rules or by statute

may be used.

Rule 4.03(2) of the Tennessee Rules of Civil Procedure sets forth the procedure for

filing the return of service once service of process by mail is complete as follows:

When process is served by mail, the original summons, endorsed as

below; an affidavit of the person making service setting forth the

person’s compliance with the requirements of this rule; and, the

return receipt shall be sent to and filed by the clerk. The person

making service shall endorse over his or her signature on the original

summons the date of mailing a certified copy of the summons and a

copy of the complaint to the defendant and the date of receipt of the

return receipt from the defendant. If the return receipt is signed by

the defendant, or by a person designated by Rule 4.04 or by statute,

service on the defendant shall be complete. If not, service by mail

may be attempted again or other methods authorized by these rules or

by statute may be used.

We first must determine whether Plaintiffs complied with Tenn. R. Civ. P. 4 and

obtained service by mail of the Defendants in March 1997. Plaintiffs had the first process issued on

March 10, 1997, and returned service eight days later with the return mail receipts having been

executed not by Defendants, but by “Peggy Campbell.” Other than the uncontested fact that Peggy

Campbell was not authorized by Defendants to accept service of process on their behalf, the record

contains no proof regarding the residence of Peggy Campbell or her relationship, if any, to

Defendants.

Plaintiffs argue that they obtained service in 1997 when Peggy Campbell signed the

return mail receipt because, as the mother and wife of Defendants, she was acting as Defendants’

agent. As discussed, there is no proof in the record supporting Plaintiffs’ contention that Peggy

Campbell is the mother and wife of Defendants. This argument fails because Plaintiffs are relying

upon Tenn. R. Civ. P. 4.04(1) which sets forth the requirements for personal service of process. In

this matter, it is undisputed that Plaintiffs’ counsel elected to attempt to serve Defendants by mail,

and that procedure is set forth in Tenn. R. Civ. P. 4.04(12). To effect service of process by mail,

Plaintiffs’ counsel was to obtain a return mail receipt showing acceptance by Defendants “or by

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persons designated by Rule 4.04 or by statute.” Tenn. R. Civ. P. 4.04(12). This court has discussed

the procedure to be followed when attempting service by mail upon a defendant’s agent as follows:

In Tennessee, rule 4.04 specifically permits a plaintiff to serve a

defendant with process by serving the defendant’s authorized agent.

Such a practice is permitted, regardless of whether the defendant is an

individual or a corporation, provided the agent is authorized by

appointment or by law to receive service on behalf of the defendant

....

Boles v. Tennessee Farmers Mut. Ins. Co., No. M1999-00727-COA-R3-CV, 2000 WL 1030837, at

* 5 (Tenn. Ct. App. July 27, 2000); see also Pell v. City of Chattanooga, No. E1999-01712-COA-

R3-CV, 2000 WL 567821, at * 3-5 (Tenn. Ct. App. May 9, 2000) (applying Tenn. R. Civ. P. 4.04

to a delinquent property tax case in which the spouse of the defendant is designated by statute to

receive service of process by mail). From the record before us, it is undisputed that Peggy Campbell

was not authorized either by Defendants or by law to accept service of process, and, therefore, that

Defendants were not served properly with the first summonses in March 1997. Moreover, even if

Plaintiffs’ counsel had attempted personal service, Plaintiffs’ argument still fails because there is no

proof in the record that Defendants were evading service of process and that Peggy Campbell resided

with Defendants at the Hixson, Tennessee, address. See Tenn. R. Civ. P. 4.04(1). In fact, with

respect to one Defendant, Seleta Kaye Campbell, the undisputed proof is that she did not reside at

the Hixson address. Consequently, we hold that Plaintiffs did not perfect service of process in March

1997.

Next, we must determine whether Plaintiffs complied with Tenn. R. Civ. P. 3 and

timely obtained issuance of new process so as to toll the running of the statutes of limitation on their

claims. To be able to rely upon the original commencement to toll the running of the statutes of

limitation, Tenn. R. Civ. P. 3 required Plaintiffs to obtain issuance of new process within one year

from the date of issuance of the first process. In contrast, the proof in the record clearly shows

Plaintiffs did not obtain new issuance of process until September 1999, two and a half years after

issuance of the first process. Accordingly, Plaintiffs failed to comply with Rule 3, and as a result,

the applicable statutes of limitation expired. See Tenn. R. Civ. P. 3; Tenn. Code Ann. §§ 28-3-104;

28-3-105.

Plaintiffs also argue on appeal that Defendants made a general appearance when they

filed their motion requesting a stay of proceedings and, therefore, waived their defense based upon

lack of personal jurisdiction due to insufficiency of service of process. This argument fails because

Defendants filed their answer prior to filing their Motion to Stay Proceedings. The record shows that

Defendants’ answer asserting the defense of insufficiency of service of process was filed on April

9, 1997, at 10:19 a.m., while Defendants’ Motion to Stay Proceedings was filed later that same date

at 3:26 p.m. Defendants properly preserved their Rule 12 defense in their answer and did not waive

this defense by filing a later motion requesting a stay. Tenn. R. Civ. P. 12.08 provides that “[a] party

waives all defenses and objections which the party does not present either by motion as hereinbefore

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provided, or . . . in the party’s answer or reply . . . .” See also Dixie Sav. Stores, Inc. v. Turner, 767

S.W.2d 408, 410 (Tenn. Ct. App. 1987) (holding that “if a party makes a general appearance and

does not take issue with venue, adequacy of service of process, personal jurisdiction, or other similar

matters . . .,” then that party has waived its objections). Moreover, Plaintiffs in July 1999,

acknowledged that they had not yet obtained service of Defendants in their Motion to Remove Stay

in which they requested entry of an “[o]rder allowing further proceedings, such as perfecting service

of process upon Defendants.” This Court has held that factual statements contained in pleadings

may be considered as admissions and “are conclusive against the pleader in the proceedings in which

they were filed until they have been amended or withdrawn.” Pankow v. Mitchell, 737 S.W.2d 293,

296 (Tenn. Ct. App. 1987). Accordingly, under the facts shown by the record on appeal, we hold that

Defendants did not waive their defense of insufficiency of service of process by filing their motion

requesting a stay of the proceedings.

Although not specifically stated as an issue by Plaintiffs, Plaintiffs have argued that

they were not able to obtain issuance of new process until September 1999 because the Trial Court

had imposed a stay of the proceedings until August 1999. This argument fails because Plaintiffs

controlled when the stay was to be lifted since the stay was contingent upon Plaintiffs’ payment of

court and discretionary costs associated with their first, non-suited action. As discussed, the record

shows that Plaintiffs did not pay these costs and file their Motion to Remove Stay until over two

years after the Trial Court entered the Order Staying Proceedings. Plaintiffs, by failing to take action

reasonably available to them, were responsible for the stay remaining in effect for as long as it did,

and are, therefore, not entitled to relief based upon this argument. See Tenn. R. App. P. 36(a).

We hold that Defendants conclusively established their affirmative defense, and,

therefore, are entitled to judgment as a matter of law. See Tenn. R. Civ. P. 56.04; Staples v. CBL

& Assoc., 15 S.W.3d at 88-89. We find no error by the Trial Court.

Conclusion

The judgment of the Trial Court is affirmed, and this matter remanded for further

proceedings as may be required, if any, consistent with this Opinion, and for collection of the costs

below. Costs of this appeal are taxed to the Appellants, Darrell L. Edwards and Arlene Edwards,

and their surety.

___________________________________

D. MICHAEL SWINEY, JUDGE

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