Kimberly Urban v. Robin Nichols, individually and d/b/a Willow Brook Lodge

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

July 24, 2015 Session

KIMBERLY URBAN v. ROBIN NICHOLS, individually

and d/b/a WILLOW BROOK LODGE

Appeal from the Circuit Court for Sevier County

No. 2012-0440-III Rex Henry Ogle, Judge

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No. E2014-00907-COA-R3-CV-FILED-SEPTEMBER 4, 2015

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This is a negligence action. The plaintiff sustained injuries to her foot and heel while attempting

to use a water slide on the defendants’ property. The plaintiff filed suit against the defendants

exactly one year after her injury. The complaint, filed against “Robin Nichols and Willow Brook

Lodge,” failed to include the proper name of the company, which is “Accommodations by

Willow Brook Lodge, LLC.” Approximately fifteen days after filing the complaint, instead of

serving Robin Nichols, the plaintiff served her son, Grant Nichols. The defendants’ answer made

the errors known, but the plaintiff’s counsel was dilatory in filing a motion to amend. Upon the

defendants filing a motion for summary judgment claiming that the suit was barred by the statute

of limitations, the trial court granted the motion. We affirm the decision of the trial court.

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

Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which CHARLES D. SUSANO, JR.,

C.J., and MICHAEL SWINEY, J., joined.

Travis D. McCarter, Sevierville, Tennessee, for the appellant, Kimberly Urban.

Joshua M. Ball and Mabern E. Wall, Knoxville, Tennessee, for the appellees, Robin Nichols and

Willow Brook Lodge, LLC.

OPINION

I. BACKGROUND

The plaintiff, Kimberly Urban, filed this negligence action after allegedly injuring her

foot and heel in the swimming pool at Willow Brook Lodge (“the Lodge”) on July 11, 2011. A

year to the day of the incident, Ms. Urban filed her complaint against Robin Nichols and the

Lodge. According to the complaint, when Ms. Urban attempted to use the Lodge’s water slide,

the water in the pool was too shallow, causing her foot to hit the bottom of the pool. As a result,

Ms. Urban suffered a fractured calcaneus in her right foot, repair of which required multiple

surgeries.

On August 27, 2012, Ms. Nichols and the Lodge (collectively “Defendants”) filed an

answer to Ms. Urban’s complaint. In the answer, Defendants contend that “Willow Brook

Lodge” is owned by “Accommodations by Willow Brook Lodge, LLC,” and Ms. Nichols is not

an owner. Additionally, Defendants pled insufficiency of process and insufficiency of service of

process pursuant to Rules 12.02(4) and (5) of the Tennessee Rules of Civil Procedure.

Defendants contend, and Ms. Urban admits, that initial service of the summons and complaint

was delivered to Grant Nichols instead of the named defendant, Ms. Nichols. Since Grant

Nichols is neither an agent of Ms. Nichols nor a party to the action, Defendants argue that the

proper service necessary to continue the action did not occur.

According to the record, counsel for Ms. Urban contacted counsel for Defendants by

letter dated November 7, 2012, requesting permission to amend the original complaint.

Approximately a week later, Defendants’ counsel responded via letter denying this request on the

basis that the statute of limitations had expired. In the evidence before us, no further contact

between the parties occurred until February 7, 2013, when Ms. Urban’s counsel again contacted

Defendants’ counsel in an attempt to amend the original complaint. On July 22, 2013,

Defendants’ counsel denied this request for a second time.

Ms. Urban and her counsel did not file a motion to amend the complaint with the trial

court until August 21, 2013, some 359 days after Defendants filed their original answer. In

response to this motion, Defendants’ counsel filed a motion for summary judgment, alleging that

failure to correctly serve process on either Ms. Nichols or the Lodge required the dismissal of the

action. In the reply to Defendants, Ms. Urban’s counsel invoked the doctrine of equitable

estoppel, alleging that Defendants’ counsel engaged in deliberately deceptive conduct intended

to mislead counsel for the plaintiff into violating the statute of limitations.

Following a review of the record, the trial court granted Defendants’ motion for summary

judgment on April 9, 2014. Ms. Urban prematurely filed a notice of appeal on May 9, 2014, at

the same time she filed a motion to reconsider. The trial court treated the motion to reconsider as

a motion to alter or amend and denied it on February 13, 2015. Ms. Urban’s prematurely filed

notice of appeal was considered filed after the filing of the trial court’s February 13, 2015 order.

Despite Ms. Urban’s late-filed notice that no transcript or statement of the evidence would be

filed, we accepted the notice in order to reach the merits of the appeal.

II. ISSUES

We restate the issues presented in this appeal as follows:

1. Whether the trial court erred when it granted Defendants’ motion for summary

judgment on the basis that Ms. Urban’s counsel had failed to timely issue service

of process to commence the case within the statute of limitations.

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2. Whether, based on the alleged misconduct of Defendants’ counsel, the doctrine of

equitable estoppel applies in order to toll the statute of limitations.

III. STANDARD OF REVIEW

This action was initiated on July 11, 2012; therefore, the dispositive summary judgment

motion is governed by Tennessee Code Annotated section 20-16-101, which provides:

In motions for summary judgment in any civil action in Tennessee,

the moving party who does not bear the burden of proof at trial

shall prevail on its motion for summary judgment if it:

(1) Submits affirmative evidence that negates an essential element

of the nonmoving party’s claim; or

(2) Demonstrates to the court that the nonmoving party’s evidence

is insufficient to establish an essential element of the nonmoving

party’s claim.

Tenn. Code Ann. § 20-16-101.

A trial court’s decision to grant a motion for summary judgment presents a question of

law, which we review de novo with no presumption of correctness. See City of Tullahoma v.

Bedford Cnty., 938 S.W.2d 408, 417 (Tenn. 1997). We must view all of the evidence in the light

most favorable to the nonmoving party and resolve all factual inferences in the nonmoving

party’s favor. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008); Luther v. Compton,

5 S.W.3d 635, 639 (Tenn. 1999); Muhlheim v. Knox Cnty. Bd of Educ., 2 S.W.3d 927, 929

(Tenn. 1999). If the undisputed facts support only one conclusion, then the court’s summary

judgment will be upheld because the moving party was entitled to judgment as a matter of law.

See White v. Lawrence, 975 S.W.2d 525, 529 (Tenn. 1998); McCall v. Wilder, 913 S.W.2d 150,

153 (Tenn. 1995).

“Summary judgment is not a disfavored procedural shortcut but rather an important

vehicle for concluding cases that can and should be resolved on legal issues alone.” Byrd v.

Hall, 847 S.W.2d 208, 210 (Tenn. 1993). When the issues presented do not justify the time and

expense of a trial, summary judgment is the proper “vehicle” allowing courts to dispose of the

case. Messer Griesheim Indus. v. Cryotech of Kingsport, Inc., 45 S.W.3d 588, 608 (Tenn. Ct.

App. 2001).

Lastly, the appeal before this court involves the interpretation of the Tennessee Rules of

Civil Procedure. “Interpretation of a rule of civil procedure presents a question of law, which we

review de novo with no presumption of correctness.” Doyle v. Town of Oakland, No. W2013-

02078-COA-R3-CV, 2014 WL 3734971 at *3 (Tenn. Ct. App. 2014) (citing Lacy v. Cox, 152

S.W.3d 480, 483 (Tenn. 2004). “Although the rules of civil procedure are not statutes, the same

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rules of statutory construction apply in the interpretation of rules.” Thomas v. Oldfield, 279

S.W.3d 259, 261 (Tenn. 2009) (see Crosslin v. Alsup, 594 S.W.2d 379, 380 (Tenn. 1980); 1

Tenn. Juris. Rules of Court § 2 (2004)). The goal in construing rules of the court “is to ascertain

and give effect to this [c]ourt’s intent in adopting its rules.” Id. (citing State v. Mallard, 40

S.W.3d 473, 480-81 (Tenn. 2001) (emphasis added). This court has a duty to enforce the rule(s)

as written. Fair v. Cochran, 418 S.W.3d 542, 544 (Tenn. 2013).

IV. DISCUSSION

On appeal, Ms. Urban argues that the trial court erred by failing to consider that she was

estopped from amending the complaint within the statutorily allowed time period. She contends

that Defendants waived their claim of insufficiency of service of process both by actively

participating in the case1 and personally indicating that there was no need to correct the original

complaint. In the alternative, she argues that the conduct of the defense counsel deliberately

misled her into allowing the statute of limitations to run. Thus, for the reasons cited, Ms. Urban

contends that she is entitled to toll the statute of limitations in order to bring her claims.

“An action is commenced within the meaning of any statute of limitations upon such

filing of a complaint, whether process be issued or not issued and whether process be returned

served or unserved.” Tenn. R. Civ. P. 3. “A statute of limitations establishes the deadline for

commencing a suit.” Cunningham v. Williamson Cnty. Hosp. Dist., 405 S.W.3d 41, 46 (Tenn.

2013). “The following actions shall be commenced within one (1) year after the cause of action

accrued: (1) Actions for libel, for injuries to the person, false imprisonment, malicious

prosecution, breach of marriage promise.” Tenn. Code Ann. § 28-3-104(a)(1) (emphasis added).

In the case at hand, both parties agree that Ms. Urban filed her complaint within the one-

year statute of limitations afforded to actions for injuries to the person. The alleged injury

occurred on July 11, 2011, and the action commenced exactly one year later with the filing of the

complaint.

For issuing and serving process in order to effectuate the complaint, Rule 3 of the

Tennessee Rules of Civil Procedure provides a useful timeframe:

If process remains unissued for 90 days or is not served within 90 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.

Tenn. R. Civ. P. 3. As explained by this court in Coggins v. Holston Valley Medical Center:

1 Once the defense of insufficiency of service of process has been fairly raised, “any other participation in the

lawsuit by the Defendant does not constitute a waiver.” Toler v. City of Cookeville, 952 S. W. 2d 31, 834 (Tenn. Ct.

App. 1997) (emphasis added).

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the failure to immediately issue process is not fatal to a plaintiff’s reliance

on the filing of the complaint to toll the running of the statute of

limitations. If, when the complaint is filed, no process is issued for [90]

days, a litigant still has a year from the filing of the complaint to secure

the issuance of process and thereby “save” the date of filing of the

complaint as an act tolling the period of limitations.

Id., No. E2014-00594-COA-R3-CV, 2015 WL 3657778 at *9 (Tenn. Ct. App. 2015) (quoting

Slone v. Mitchell, 205 S.W.3d 469, 473 (Tenn. Ct. App. 2005)). However, “[i]nsufficient service

of process will not suffice to toll the statute of limitations.” Procter & Gamble Cellulose Co. v.

Viskozza-Loznica, 33 F.Supp. 2d 644, 667 (W.D. Tenn. 1998) (citing First Tenn. Bank v.

Dougherty, 963 S.W. 2d 507, 508 (Tenn. Ct. App. 1997)).

According to the undisputed facts in this case, the complaint, which named both Robin

Nichols and Willow Brook Lodge, was served in person on July 26, 2012, to Ms. Nichols’ son at

the Lodge. An answer was filed with the court on August 27, 2012. In the answer, Defendants

raised two issues with the service of process: (1) no company called Willow Brook Lodge exists;

rather, the correct name on the complaint should be Accommodations by Willow Brook Lodge,

LLC; and (2) the summons and complaint were not personally delivered upon Robin Nichols, but

rather to her son, Grant. Defendants argue that this does not amount to effective service of

process.

Under Tennessee’s Rules of Civil Procedure, service upon defendants within the state

shall be made “by delivering a copy of the summons and of the complaint to the individual

personally . . . .” Tenn. R. Civ. P. 4.04(1). When serving a limited liability corporation, service

shall be made by delivering a copy of the summons and complaint “to an officer or managing

agent of the association, or to an agent authorized by appointment or by law to receive service on

behalf of the . . . association.” Tenn. R. Civ. P. 4.04(3).

In reviewing the record, we find nothing indicating that Grant Nichols was purported as

an officer, partner, or agent of either Ms. Nichols or the Lodge. Despite his acceptance of the

service, “[t]he bare fact that an alleged agent actually accepts process for the defendant is not

enough to constitute valid service of process. There must be evidence that the defendant

intended to confer upon its agent the specific authority to receive and accept service of process

for the defendant.” Arthur v. Litton Loan Servicing LP, 249 F.Supp.2d 924, 929 (E.D. Tenn.

2002). Even “[a] defendant’s actual knowledge of a lawsuit is no substitute for proper service of

process.” Id. at 927. Service of process which does not meet the requirements of the rule is

void, and a judgment based on void service of process is a void judgment.” Overby v. Overby,

457 S.W. 2d 851, 852 (Tenn. 1970).

The record indicates that after Defendants filed their answer on August 27, 2012, no

communication occurred between the parties until November 7, 2012. On that date, counsel for

Ms. Urban sent a letter to Defendants’ counsel requesting permission to amend the original

complaint in order to include the correct name of the Lodge and drop the original action against

Ms. Nichols. This request was sent about 116 days after the issuance of the original process.

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Defense counsel replied on November 15, 2012, with a letter rejecting Ms. Urban’s request to

amend.

According to Rule 15.01 of the Tennessee Rules of civil Procedure, a party may freely

amend its pleadings in two situations: (1) before a responsive pleading is served; or (2) at any

time within 15 days after it is served. Tenn. R. Civ. P. 15.01. “Otherwise, a party may amend

the party’s pleadings only by written consent of the adverse party or by leave of court; and leave

shall be freely given when justice so requires.” Id. Because the November 7, 2012, letter fell

well outside the time allowed to freely amend the complaint, Ms. Urban required either the

consent of Defendants’ counsel or aid from the court in order to accomplish an amendment.

Generally speaking, “Tennessee law and policy have always favored permitting litigants

to amend their pleadings to enable disputes to be resolved on their merits rather than on legal

technicalities.” Hardcastle v. Harris, 170 S.W.3d 67, 80 (Tenn. Ct. App. 2004) (internal

citations omitted). Upon receipt of the November 15th letter, counsel for Ms. Urban should have

turned his request to amend the complaint toward the court. By attaching a copy of the proposed

amendment to a motion filed with the court, it becomes “part of the record at that time,

regardless of what action the trial court takes or fails to take on it.” Jones v. Professional

Motorcycle Escort Service, L.L.C., 193 S.W.3d 564, 573 (Tenn. 2006) (quoting Taylor v.

Nashville Banner Publ’g Co., 573 S.W.2d 476, 484 (Tenn. Ct. App. 1978)).

Instead, counsel for Ms. Urban waited until February 7, 2013, to again contact counsel

for the Defendants. In that letter, Ms. Urban’s counsel again requested that defense counsel

accept the amended complaint. On July 22, 2013, defense counsel again rejected this request.

On August 21, 2013, over 13 months after filing the original action, Ms. Urban filed a motion to

amend the complaint with the trial court. At no time does the record indicate that Ms. Urban’s

counsel attempted to properly file service of process on the correct party to the action. Because

Ms. Urban did not properly serve Defendants before July 11, 2013, no choice was left to the trial

court but to dismiss the claim.

In an effort to avoid dismissal of the action, Ms. Urban contends on appeal that she was

estopped from compliance by defense counsel. She alleges that defense counsel “engaged in a

pattern of conduct deliberately designed to mislead” her counsel into failing to amend the

complaint in a timely manner. According to her brief, this alleged conduct amounted to

equitable estoppel, and it should serve to toll the statute of limitations on her claim.

“The doctrine of equitable estoppel may be applied to prevent a defendant who has

actively induced a plaintiff to delay filing suit from asserting a statute of limitations defense.”

Hardcastle, 170 S.W.3d at 84 (citing Fahrner v. SW Mfg., Inc., 48 S.W.3d 141, 145 (Tenn.

2001)). “The party invoking the doctrine of equitable estoppel bears the burden of proof.” Id.

The focus of a claim for equitable estoppel is on the defendant’s conduct and the reasonableness

of the plaintiff’s reliance on that conduct.” Id. (citing Fahrner, 48 S.W.3d at 146). However,

“[s]tatutes of limitations are favored because they promote the timely pursuit of legal rights by

suppressing stale claims.” Id. (citing Brown v. Hipshire, 553 S.W.2d 570, 571 (Tenn. 1977)).

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In order for an equitable estoppel claim to prevail, plaintiffs “must have acted diligently

in pursuing their claims both before and after the defendant induced them.” Redwing v. Catholic

Bishop for Diocese of Memphis, 363 S.W.3d 436, 461 (Tenn. 2012). “Plaintiffs must also

demonstrate that their delay . . . was not attributable to their own lack of diligence.” Hardcastle,

170 S.W.3d at 85.

Upon our review, we conclude that Ms. Urban’s claim for equitable estoppel is wholly

without merit. As the record clearly indicates, Ms. Urban’s counsel sent a letter to Defendants’

counsel on November 7, 2012, requesting that it accept the proposed amended complaint. After

Defendants’ November 15th reply denied this request, Ms. Urban’s counsel waited until

February 7, 2013, to send any further communication. This 84-day delay in communication is

certainly not the type of “diligent pursuit of a claim” required to bring a claim for equitable

estoppel. At this point in the litigation, counsel for Ms. Urban had ample opportunity to seek

leave to amend the complaint with the trial court, where proposed amendments are accepted

“freely when justice so requires.” Tenn. R. Civ. P. § 15. Instead, counsel waited until adverse

counsel filed a reply - 165 days later - denying the request a second time before taking any

further action.

To make matters worse, Ms. Urban’s counsel now alleges that counsel for the Defendants

explicitly told him that proper service would not be necessary. First, it is inconceivable that

Defendants’ counsel would raise the issue of insufficiency of service of process in the initial

answer if Defendants’ later intended to waive that issue altogether. Second, Ms. Urban’s

counsel, who bears the burden of proof, has not provided this court with a single shred of

evidence that such a conversation ever occurred. Therefore, we find that counsel for Ms. Urban

has not met the burden of proof required to establish equitable estoppel.

V. CONCLUSION

The judgment of the trial court is affirmed and the case remanded for such further

proceedings as may be necessary. Costs of the appeal are assessed to the appellant, Kimberly

Urban.

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JOHN W. McCLARTY, JUDGE

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