### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE July 10, 2001 Sess

ion STATE OF TENNESSEE, EX REL, PERNIE BARGER, ET AL., v. CITY OF HUNTSVILLE, TENNESSEE, STAT E OF TENNESSEE, EX REL, GEORGE BRAWNER, SR., ET A L., v. CITY OF HUNTSVILLE, TENNESSEE Direct Appeal from the Chancery Court for Scott County Nos. 8087 and 8119 Hon. Billy Joe White, Judge

FILED AUGUST 17, 2001
No. E2001-00395-COA-R3-CV

The Trial Court held service of process on the City’s May or under Tenn. R. Civ. P. 4.04(8) w a s insufficient. On a

ppeal, we affir

m.
Tenn. R. App. P.3 Appe al as of Right; Judgme

nt of the Chancery Co

urt Affirmed.

H ERSCHEL P ICKENS F RANKS , J. , delivered the opinion of the court, in which H OUSTON M. G ODDARD , P.J., and C HARLES D. S USANO , J R ., J., joined.
David L. Buuc

k, Knoxville, Tenne

ssee, for Appell

ant. Andrew R. Tillman, Knoxville, Tennessee, for Appellee.

OPINION

The Trial Court dismissed t his act ion for insufficient service of process, and plaintiffs have appealed. The action was brought against the City of Huntsville, and the Summons states that it was served upon th

e City “at Ma

yor Charle

s Sexton’s Office.”

The City file

d a Motion to Dismiss, stating there was no persona l servi ce on the Mayor, but rather that copies of the Summons and Complaint were simp

ly left at the

Mayor’s of

fice, and arg

ue that Tenn. R. Civ. P. 4.04(8) requires personal service on the Mayor.-2- Other plaintiffs then filed a quo warranto proceeding against the City, and the Summons in this case states that the pro cess s erver “left a copy with defendant.” The City filed a Motion to Dismiss in this action. These two

actions were co

nsolidated on appe

al.
In support of its Motions , the City file d an Affidavit of C

ynthia Re ynolds, which states that she was the City Recorder for Huntsville, and that the processes were left with her at the Mayor’s office, but the Mayor was not present. Reynolds in her deposition which was filed, testifi ed th at she had worked as City Recorder for 15 yea

rs, and that Charle

s Sexton had been the

Mayor at the

tim e the lawsuits were filed, and that

he was also workin

g for the Scott Cou

nty Road Department. She testified that Sexton came to the office nea

rly every day, but that his schedule wa s unpredictable. She further testified that the Summons and Complaints at issue were left with her, and that she gave them to the Mayor. She further testified that

she did not tell

the process servers that she was authorized to accept service, but rather she told one of them that he should find the Mayor, and that she didn’t think she could accept service.
The facts in this case are not

in dispute, and the issue involved is a question of law which is reviewed de novo by this Court without a presumption of correctness. Union Carbide Corp. v. Huddleston , 854 S.W.2d 87 (Tenn. 1993).

Tennessee Rules of Civil Procedure 4.04(8) requires that service may be made upon a municipality by delivering a copy of the summons an d complaint to the “chief executive officer thereof, or to the city attorney.” I n this case, a copy of the summons and complaint were left at the mayor’s office, but

were not personally delivered to the may or. Plaintiffs argue that such service was sufficient under the authority of Garland v. Seaboar d Coast line R. Co. , 658 S.W.2d 528 (Tenn. 1983). In Garland , the Court adopted the construction used by the federal courts in determining the sufficiency

of service of process on business entities, wherein the federal courts had held that service could be made upon a representative of the company who was “so integ

rated with the organization that he will know what to do with the papers.” Id . at 531. Th us, t he Court held that service on a company was sufficient if it was made upon a pers on whom one could reasonably imply had authority to receive service. Id. Plaintiffs argue tha t because se

rvice was made u

pon the city recorder, who is “a representative so integrated”

with the City

that she would know

what to do with the papers, and who c

ould reasonably be thought

to have authority to accept same, the process was sufficient and proper.

We note, however, that the Court’s decision in Garland

as well as the federal cases relied upon dealt strictly with service on companies and the subsections of Rule 4.04 which a pply thereto. Garland

made no mention of serviceupon mun icipalities, and there have been no cases citing Garland

which deal with the

issue before us.

There appears to be an absence of authority on the issue of sufficiency of service on a municipality in this jurisdiction, except for the case of Legleu v. Clarksville Dept. o

f Electricity , 944 S.W.2d 364 (Tenn. Ct. App. 1995), whe rein this Court held that service upon an officer of the Clarksville Department of Electricity wa s ins ufficient to give1 It has likewise been he ld that service on

the county

sheriff was insufficient service on the cou nty, pursuant

to Tenn. R. Civ. P. 4.04(7). Freeman v. Shannon , No. W1999-1597-COA -R3-CV (Tenn. Ct. App. Sept. 7, 2000), no perm. app. filed. -3- notice to the City of Clarksville, and was thus insufficient service on the City pur

suant to Tenn. R. Civ. P. 4.04. 1 Tenn. R. Civ. P. 4.04(8) is specific, in that delivery must be upon the chief executive officer, i.e. the mayor, and such was not done in this case.

This Court has recognized that theRules of Civil Proce dure are “laws

” which must be construed in the same manner as statutes, such that if the language of the rule is plain, clear, a nd unambiguous,

the court’s duty is to simply to enforce the rule as written. First Tennessee Bank, N.A. v. Dougherty , 963 S.W.2d 507 (Tenn. Ct. App. 1997).

Plaintiffs argue that they

should not be held to the technical requirements of the Rule because it is clear that the City had notice of the clai m s. Tenn. R. Civ. P. 12.02, however, specifically

allows the defen

se of insufficien

cy of proc ess to be raised in

a Motion to Dismiss,

such as was done in this ca

se. Moreover, it i

s clear that once

this defense h as been raised, any other participation i n the l awsuit by the defendant does not constitute a waiver. See Toler v. City of Cookeville , 952 S.W.2d 831 (Tenn. Ct. App. 1997).

Plaintiffs also argue that the Trial Court should have held an evi den tia ry hearing before ordering that the case be dismissed. The Trial Court, however, had the be nefi t of the Reynolds’ Affidavit, as well as the deposition testimony of the process servers, Ms. Rey nolds, and the Mayor, and

the facts were n

ot in dispute . There is no indication that an evidentiary hearing would have aided the court in any way , as all of the pertinent facts were before it. Moreover, the Motion to Dismiss was not hea rd for two y

ears, and plainti

ffs made no effo

rts to correct

the alleged defect in service.

We hold the directive under the Rule is clear and that on the facts before u s the service was insufficient pursuant to the unambiguous directives of Tenn. R. Civ. P. 4.04.

Acco rdi ngly, we affirm th e Judgmen t of the Trial Court and assess the cost of the appeal to the appellants, Barger, Brown, Lloy d, Stonecipher, Brawner, Marlow, Pemberton and Ryan.

_________________________ H ERSCHEL P ICKENS F RANKS , J.