### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs D ecem

ber 31, 200 2 STEVEN GRIFFIN v. WILLI AM C. ROBERTS, JR.
Appeal from the Circuit Court for Davidson County No. 99C-1162 Marietta Shipley, Judge

No. M2002-01898-COA-R3-CV - Filed August 7, 2003

An inmate in the custody of the De partment of

Correct ion filed a legal m alprac tice suit

against the court-appointed

attorney wh o represented h im in his post -convic tion appe al. Desp ite many attempts, the inmate failed to obtain service on the attorney . More than three y ears aft er sui t was filed, the court dis missed the

case fo r lack of prosecu tion. We af

firm the t rial cou rt. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed and Remanded B EN H. C ANT RELL , P.J., M.S., delivered the opinion of the court, in which W IL LI AM C. K OCH , J R . and W IL LI AM B. C AIN , JJ., joined. Steven Griffin, Whiteville, Tennessee, Pro Se.

OPINION I. Steven Griffin was convicted of agg ravated rape and ki dnapp ing in 1993 and received an effectivesentence of 85 years f or his crimes. On November 27, 1997, he appeared in the Davidson County Criminal Court for a hearing on his petition for post-conviction relief. William Roberts had been appointed by the cour t to represent

Mr. Griffin during this proceeding. After the hearing, the trial court de

nied the p etition. T

he court ’s decis ion was upheld on ap peal. See Griff

in v. State , App. No. 01C01-9801-CC-00004 (Tenn. Crim. App. May 6, 1999)

.1 Mr. Griffin’ s appellate brief sets outa somewhat different set of dates f

or fili ngs in thi s case. In t his opinion, we rely o n the d ocu men ts in the rec ord , not on his brief. -2- The record shows that

Mr. Griffin filed a pro se Complaint for Le gal Malpractice ag ainst Mr. Roberts on

April28, 1999. 1 In his Complaint, he alleged that the defendant committed numerous errors and that these errors had a preju dicia l effec t on t he out come o f the p ost-c onvi ction hearin g. An initial attempt to serve the Complaint on Mr. Roberts failed, with the Davidson County Deputy Sheriff noting on the summons that he was “not to be found in my county.” Mr. Griffin claims that he made numerous attempts t o serve M r. Rober ts by certifi ed mail, in accordance with Rule 4.04(1 0) , Tenn. R. Civ. P. The r ecord c ontains se

veral r eturn re ceipts addressed to Mr. Robe

rts, in which the “Received By

(Print Name)” and “Signature (Addressee or Agent)” lines rem

ain blank. Presumably, the post office was unable to deliver the summons to the addressee. One problem was apparently tha t Mr. Roberts moved around frequently. The

cover sheet on the Technical Record lists five different addre sses for him, in Hermitage, LaVergne, Antioch, Nashville, and Shelbyville. I n his brief, Mr. Griffin states that at one point he was informed that Mr. Roberts had moved to Shelbyville. An attempt to serve him at that a ddress produced a return rece ipt withthe “received by” line left blank and an illeg ibl e signa ture in the

signatu re line. Mr. Grif

fin interpre ts the signature as reading “V. Sluir.” There is nothing in the re cord to in dicate th at V. Sluir is an agent of Mr. Roberts. Mr. Griffin was aware that his failure to s erve Mr. Roberts was a problem. The rec ord contains several letters he wrote to the circuit court in which he recited his effo rts to obtain service, and asked the trial court to either accept the docume ntation he submitted as proof of service, or itself serve process on Mr. Roberts. Mr. Griffin also tried to get Mr. Roberts to sig n a Waiver of Service of Summons u

nder Rule 4.07, Ten

n. R. Civ. P., all to no a

vail. Meanwhile, M r. Griffin filed a Motion for Judgment of Default, in which he asserte d the defendant’s failure

to respon d to any

discover y r equests, and ag ain rec ited his dif ficultie s try

ing to serve him. A subsequent Motion to Renew the Motion for Default relied upon thereceipt signed by “V. Sluir” f

or an asser tion that th

e defendant had in fact been serve d. We note t hat under Rule 4.04(10), ”Service by

mail shall not be the basis for the entry of judgment by de

fault unle ss the record contains a return receipt showi ng pe rsonal acceptance by the defendant or by

persons designated by

Rule 4.04 or statute.” On June 10, 2002, the Circuit Court Clerk’s office sent a Notice to Mr. Griffin that all cases which had been pending for one year or more would be dismissed unless a Motion to Set was filed and heard w ithin thirty

day s, or spec ific permission was obtained by the court within the same period of time to be exempted from the one ye ar rule. See Davidson County Loca l Rule 18.0 2. On July

17, the court dismissed Mr. Griffin’s complaint. This appeal followed.-3- II. S ERVICE OF P ROCE SS Service of process is the primary means whereby

a trial court obtains personal jurisdiction over a defendant. The court has no power to compel an individual defendant to appear before it or to obey its orders in the a

bsence of personal jurisdiction. Accordingly , there is very littlea plaintiff can do to p

rosecut e his cas e until he

has serv ed the defendant

. Both Davidson County L

ocal Rule 18.02 andRule 4 1.02( 1), T enn. R. Civ . P., a uthor ize the trial court to dismiss complaints for failure to prosec

ute. Such a rule is a

necessa ry tool to ena

ble the court to ma

nage it s own docket. Osagie v. Peak load Tempo rary Serv ices, 91 S.W.3d 326 (Tenn. Ct. App. 2002). A trial cou rt's de cision to d

ismiss a ca se for failure to prosecute is within its sound discretion, and will not be reversed on appeal unless there is abuse of that discretion. Manufact urers Consolidation Service

, Inc. v. Rodell, 42 S.W.3d 846 (Tenn. Ct. App.200 0); White v. College Motors, Inc. , 370 S.W.2d 476 (Tenn. 1963). Mr. Grif fin neve r succe eded in

obtaining serviceon Mr. Roberts. He alleges that the attorney made a concerted effort to evade service by

ref using to acce pt certified letters, and by moving freque ntly from place to place. Whether or not this is true, Mr. Grif fin has been

unable to move his case forward because of

the lack of service. We no te th at ou r c ou rt s d o n ot lo ok fa vo ra bl y upon attem pts to evade service. Stempa v. Walgreen Co ., 70 S.W.3d 39 (Ten n . Ct. App. 2001), and that such conduct is all the more unacce ptable when engaged in by

members of the bar. Nonetheless, we do not believe the tria l court abu sed its di scretion by dismissing Mr. Gr iffin’s complaint, especially in light of the developments in this area of the law while Mr. Griffin’s action was pending in the trial court. III. G IBS ON V . T RANT Our Supreme Court has recently r uled on the burden a criminal defendant must meet in order to maintain a

legal m alprac tice suit a

gainst an attorney who r

epresented him at trial. In Gibson v. Trant , 58 S.W.3d 103 (Tenn. 2001), the Court determined that Tennessee would align itself with the majority of other states by r

equiring that a criminaldefendant be exonerated before he is allowe d to claim that his co nviction w as procu red or a ffirmed as a res ult of leg al malprac tice. 58 S.W.3d at 108. The Court reasoned that the State of Tennessee has provided a channel of recourse for t he criminal defenda

nt who bel

ieves he has been wrongl y c onvicted , in the form of the post-conviction process . Once a d

efenda nt’s cha llenge to his convictio n h as been rejected in a post-conviction procee ding, a

legal m alprac tice cla

im agai nst the att

orney who repr esented him would be a means of collaterally a

ttacking the result of that proceeding , and of undermining its finality. The court ruled that it was not appropriate for “criminal convicti ons to be te sted in the civil court arena,” 58 S.W.3d at 112, and that “[w]e should not rely on leg al malpract ice act ions to do the work of the criminal-4-

justice sys tem and the Boar d of Pr o fessional Responsibility, especially where doing so may discourage the thorough re presentation of indigent criminal defendants” 58 S.W.3d at 116. We do not hold t

hat Gibson v . Tr

ant is an absolute bar to Mr. Griffin’s malpractice action since the alleged malpractice occ urred in the post-conviction proceeding. B ut since the sam e alle gations have been exam ined in the

Court of Cr

iminal App eals and

found to be

without me

rit, see Griffin v. State , App. No. 01C01-9801-CC-00004 (Tenn. Crim. App. May 6, 1999) , the doubtful validity of the ma

lpractic e compla

int ele vates Mr. Griffin’s burden of showing that the trial court abused its discretion. IV. The judgmen

t of the tri al c ourt is affirmed. Remand this cause to the Circuit Court of Davidson County for further proceedings consistent

with this opinion. Tax the cos ts on appe al to the appellant, Steven Griffin.

_________________________________________ BEN H. CA

NTREL L, PRESI DIN G JUDGE, M. S.