Stempa v. Walgreen Co.

HOUSTON M. GODDARD, Presiding Judge,

concurring.

I concur in the majority opinion authored by Judge Swiney, which is in accord with an opinion by the Western Section of this Court sitting in Nashville, authored by Judge Lillard. I write separately, however, to suggest that had this Court not already specifically spoken on the subject I would be inclined to follow the reasoning of Circuit Judge Frank G. Clement, Jr., 1 in the case of Tillman v. Haffey, presently on appeal, which holds to the contrary.

APPENDIX

IN THE SEVENTH CIRCUIT COURT OF DAVIDSON COUNTY, TENNESSEE

NORMA TILLMAN v. LEO P. HAFFEY, et. ux.

Filed July 28, 2000

No. 00C-246

Jury Demand

MEMORANDUM OPINION AND ORDER

This matter is before the Court upon the motion of the defendants, Leo P. Haffey and wife, Robin S. Haffey, to dismiss the Complaint of the plaintiff, Norma Tillman, on the basis that the statute of limitations bars the action. 1 This is a malicious prosecution action which was commenced on August 30, 1999. This action is directly related to a prior action between the same parties, Leo Haffey and Robin Haffey v. Norma Tillman, Docket No. 97C1476, Circuit Court of Davidson County, Tennessee, which action was voluntarily dismissed by the Haffeys without prejudice on September 14,1998.

Briefly summarized, the defendants assert that this action is barred by the statute of limitations even though the complaint and summons were filed prior to the running of the statute. Though the complaint and summons were filed timely, the plaintiff retained the summons after it was “issued” by the clerk. Specifically, the *46 plaintiff intentionally prevented service of the summons on the defendants until after the running of the Savings Statute 2 on the prior action (and the statute of limitation. 3 in which this action could be commenced) by literally holding the summons. The defendants claim that the plaintiffs act of intentionally holding the summons defeats the tolling of the statute of limitations.

The plaintiff contends that no duty was owed to the defendants to serve or even attempt to serve the summons. 4 The plaintiff acknowledged that the plan was to wait until after the Savings Statute had run so that the defendants (the Haffeys) would then be precluded from re-commencing their previous civil action against Tillman (then the defendant, now the plaintiff). The Haffeys voluntarily dismissed their action, without prejudice.

The Court took this matter under advisement and now renders its opinion. Based on the reasoning set forth below, this Court is of the opinion that a plaintiff owes no duty to serve a defendant with process prior to the “commencement” of a civil action. Indeed, a plaintiff may intentionally wait to the last second of the last minute of the last hour of the last day the statute of limitations runs to “commence” a civil action. Specifically, a plaintiff may file the complaint and summons with the clerk of the court at the very last second. However, once the civil action is commenced, 5 a plaintiff has a duty not only to present a summons to the clerk for “issuance” by the clerk forthwith, but that the plaintiff not thereafter intentionally prevent or materially delay service of process. Process cannot intentionally be held in abeyance by a plaintiff after an action is commenced. The rules respecting the commencement of an action contemplate the timely issuance of a summons and the placing of summons in the proper channels for service in order to toll the statute of limitations. Intentional acts by a plaintiff to prevent or materially delay service of the summons after summons is issued by the clerk defeat the “tolling” of the statute of limitations. In such cases, the statute shall not be “tolled” until such time as the plaintiff places the summons in the proper channels for service on the defendant.

Procedural History

This action stems from a prior action filed May 8,1997 by Leo and Robin Haffey against Norma Tillman (Docket No. 97C1476), which the Haffeys voluntarily dismissed without prejudice on September 14, 1998. Thereafter, on August 30, 1999, Norma Tillman filed this action against the Haffeys alleging malicious prosecution and abuse of process and seeking compensatory and punitive damages. Although the complaint and summons were filed timely on August 30, 1999, defendants were not served with process until November 5, 1999. Counsel for plaintiff admits that defendants were not served with process before September 14, 1999, one year from the voluntary dismissal of the underlying suit, for the summons was intentionally withheld by the plaintiff. The summons was intentionally held by the plaintiff until after that date so that defendants would *47 not be prompted to re-file their prior claim prior to the expiration of the one year Savings Statute. In fact, counsel for plaintiff indicated that doing otherwise would have compromised his professional obligations to his client. The plaintiffs response asserted:

After September 14, Ms. Tillman and her counsel decided that she would retain a process server to serve the Haf-feys. Though she and her counsel knew the Haffeys’ apartment number, the number had been omitted from the address on the original summons... By the time the process server was secured by Ms. Tillman, the original 30 day period had elapsed, and it was necessary to obtain an alias summons.

Consequently, service of process on the defendants was not even attempted until November 1, 1999, when the alias summons was presented to the Clerk for issuance. The defendants were not served until November 5,1999.

Analysis

Generally, a potential plaintiff is not under a duty to file a complaint any earlier than the last possible moment, which is set by the applicable statutes of limitation and repose. These statutes establish the deadline by which one must commence an action and, unless laches or estoppel apply, there is no requirement to commence an action any earlier. Point being, absent laches or estoppel, a plaintiff can wait and file whenever they please, provided it is prior to the running of the statutes of limitation or repose.

This court is aware of numerous cases where a plaintiff waits outside the clerk’s offices and “files” the complaint and summons at the last moment, yet one must realize that those cases deal with the period of time prior to the filing of the complaint and summons. What we have here, however, pertains to what the plaintiff did after the filing of the complaint, after commencement of the action.

Under Tennessee law, process cannot be held in abeyance as a means of defeating the running of the statute of limitations. West v. Cincinnati N.O. & T.P. Ry. Co., 108 F.Supp. 276 (1953 [1952]). The federal rules respecting the commencement of an action and process contemplate the issuance of a summons and the placing of summons in proper channels for service in order to toll the statute of limitations. Fed. Rules Civ. Proc. Rules 3, 4(a), 28 U.S.C.A. Hixon v. Highsmith, 147 F.Supp. 801 (1957). Mere preparation of summons with direction to hold it until further instructions is not “suing out of the summons” and delivery of the papers to the proper office for service on defendant is necessary. Robertson v. Giant Food Market, Inc., 358 S.W.2d [338], 210 Tenn. 356 (1962).

Our courts have held that withholding of a summons to prevent service defeats the tolling of the statute of limitation. (“Action of plaintiffs’ attorney in causing clerk to place summons in safe until further instructions, ... was not commencement of action within limitation statute, and action was barred.”) Robertson, supra. In Tennessee, our Supreme Court has held:

It is essential that the process shall be issued with the bona fide intention that it shall seasonably and in due course be served, and if it is issued provisionally, as here it is not to be served until further instructions, or until a certain time or event, action will not be considered as “commenced” until the date or contingency specified.

Ridgway Sprandle [Sprankle] Co. v. Carter, 143 S.W.2d 527 , 176 Tenn. 442 (Tenn.1940).

*48 Though the foregoing authority is more than sufficient to answer the question at issue, it is informative to also review authority which sanctions defendants who attempt to thwart service of process. The Advisory Commission comments to the 1997 issue of the Tennessee Rules of Civil Procedure cite numerous authority which sanction defendants who attempt to thwart service of process. In the comments, it is reported that: A defendant may not deny personal service on the grounds of lack of delivery where the delivery was deliberately prevented by the action of the person to be served. Hankla v. Governing Board of Roseland Sch. Dist., [ 46 Cal.App.3d 644 ] 120 Cal.Rptr. 827 (Cal.App.1975). Avoidance of service of proper process by a wilful act or refusal to act on part of defendant “would create an intolerable situation and should not be permitted.” Cortez Development Co. v. New York Capital Group, Inc., 401 So.2d 1163, 1165 (Fla.App.1981). It can hardly be logically argued that one may avoid the process of the court by merely refusing to accept a letter known to contain a Summons and Complaint. Patel v. Southern Brokers, Ltd., [ 277 S.C. 490 ] 289 S.E.2d 642, 644 (S.C.1982).

Analysis of the foregoing authorities causes this Court to conclude that a plaintiff may not wilfully impede service of process on a defendant after the complaint is filed anymore than a defendant may wilfully evade service of process.

Conclusion

Though this Court agrees that the plaintiff owed no duty to serve the defendants at anytime prior to the commencement of this action, it is the firm opinion of this Court that this changed the moment the plaintiff filed the complaint with the Circuit Court Clerk on August 30, 1999. At that moment, the plaintiff indeed had an affirmative duty to not only present the summons to the Clerk for issuance forthwith but to place it in the proper channels and thereafter not intentionally interfere with reasonable efforts to effect service of process on the defendants.

By intentionally withholding the summons, thereby precluding the possibility of the service of process on either defendant, the plaintiff defeated the tolling of the statute of limitations until such time as summons was subsequently placed in the proper channels for service to be attempted, which did not occur until November 1, 1999. Therefore, the statute of limitations was not tolled until November 1, 1999, which was more than one year following the voluntary dismissal of the underlying action. As a result, the statute of limitations ran on the plaintiffs malicious prosecution action against the Haffeys. Accordingly, not only has the Savings Statute run against the Haffeys, preventing them from reviving their prior action against Tillman, so has the statute of limitations run against Tillman, which bars her from maintaining this action against the Haf-feys.

Therefore, the Haffeys’ motion to dismiss the complaint by Norman Tillman is granted. Costs are assessed against the plaintiff for which execution may issue.

It is so ORDERED.

Dated: July 27, 2000.

Frank G. Clement, Jr., Circuit Court Judge

. See Appendix for a copy of Judge Clement’s order.

. Specifically, the defendants motion claims Insufficiency of Service of Process and/or Insufficient Process, however, the essence of the motion is that the action is barred by the one year statute of limitations for it was not tolled by the filing of the complaint.

. T.C.A. 28-1-105.

. T.C.A. 28-3-104.

. During the hearing on the motion, the plaintiff acknowledged that the summons was presented to the Clerk for issuance, but thereafter it was intentionally held by the plaintiff so that it would not be served on the defendants until after the statute had run in order to prevent the defendants from reviving their prior action.

.Which occurs the moment the complaint is filed with the Clerk. Rule 3, T.R.C.P.