### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE November 2000 Sessi

on

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 Plain tiffs’ failure to

comply with Tenn. R.

Civ. P. 3 and 4.04. Plaintiffs sued Defendants

for personal injuries and

property damage allegedly resulti ng from a 1989 motor

vehicle accident. Plaintiffs first fi led 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 ser

vice of process

by mail. A third person, but neither defendant, signed the return mail receipts. De

fendants raised the de fense of insuffi ciency of servic

e of process in the

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

he stay upon Plaintiffs’ payment of costs associated with their first lawsuit. Two years later, Plaintiffs

paid the costs, and

the Trial Court lift

ed the stay. Ther

eafter, Pla

inti ffs
o btained 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 bec ause Plaintiff

s 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. Plaintif

fs did not respond to Defen

dants’ motion which

the Trial Court gra

nted. Plaintiffs ap

peal. We affir

m. Tenn. R. App. P. 3; Judgm ent of the Circuit

Court Affirmed;

Case Remanded.

D. M ICHAEL S WINEY , J., delivered the opinion of the court, in which H OUSTON M. G ODDARD , P.J., and H ERSCHEL P. F RANKS , J., joined.

Jesse O. Farr, Chattano

oga, Tennessee , for the Appella nts, Darrell

L. Edwards and Arle

ne Edwards.

Donald W. Strickland, Chattanooga, Tennessee, for the Appellees, Seleta Kaye Campbell and Fisher Campbell.-2- OPINION
Background

This a p peal arises fro

m a grant of summar

y judgment by the Tr

ial Court to Seleta Kaye Campbell and Fisher Campbell ("De fe ndants"). Darrell L. Edwards and Arlene Edwards ("Plaintiffs")

filed suit claiming personal injury and property damage allegedly resulti ng from a mot or vehicle accident between Seleta Kaye Campbell and Darrell L. Edwards. Th e acciden t occurred in 1989, and Plaintiffs file d their first suit

in 1990. After nearly six years, Plaintiffs nonsuited their first suit on Ma

rch 11, 1996. Ther

eafter, Plaintif

fs timely re-filed their complaint

under the savings statute on March 10, 1997. Th e Trial Cou rt clerk issued summonses which listed an ad dress in Hix son, Tennessee, for both Defendants. One week later, Plaintiffs' counsel filed affidavits of service of proc ess and the r eturn mail receipts which had been signed by “Peggy Campbell.” The record do es not indicate what r elationship, if an

y, Peggy Campbell ha

s with Defendants.

On Apr il 9, 19 97, 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. Th e ord er 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 Proce edings was entered, this case lay dormant for nearly two years. In March 1999, De fendants filed a

Mo tio n to Dismiss based upon their defense of insufficiency

of service of pr

ocess. Inresponse, 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.

InJuly 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 co sts

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

h as perfecting s

ervice of proce

ss upon Defendan

ts." The Trial Court granted Pla intiffs ’ motion, and Plaintif fs, 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 Mot ion 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 limit

ation had expired

. In support of th

eir moti on, 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 affidavi

ts 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.-3- Defendan ts’ Rule 56 statement of

material facts (

“Rule 56 statement

” ) filed with thei r motion for summary judgment includes, in part, the following:

1) inMarch 1997, although Plaintiffs’ counsel filed

affidavits of service, Plaintiff’s counsel had actual notice that Defendants ha d no t been served since the return mail receipt had been signed by “Peggy Campbell”; 2) Defendant,

Seleta Kaye Campb ell, was r

esi ding in Cookeville, Tennessee in

March 1997, instead

of the Hixson address listed on t

he 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 summon ses in 1997; 5) Plaintiffs requested that new pr ocess be issued by the Trial Court clerk in September 1999; and 6) Defendants were not served until October 2, 1999.

Plaintiffs filed neither a r

esponsive brief t

o Defendants’ mo

tion nor a response

to Defendants’ Ru

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

Discussion

Plaintiffs’ argument on appeal appe a rs to be that the Trial Court erred in granting summary judgment to

Defendants because Plaintiffs’ service of the first summonses and complaint in1997 was effective under Tenn. R. Civ. P. 4.04. Plaintiffs contend that “Peggy Campbell” was the mother and wife of Defenda nts and signe d the return mail r eceipts as Defe

ndants’ agent. Plaintiffs also argue on appeal that Defendants’ actions are not consistent with their claim of absence of personal jurisdic

tion. Defendants

argue that

the Trial Court’s granting of summary judgment was proper because there i s 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 res

ulting in a running of the statutes of limitation.

Our Supreme Court outlined the standard of review of a mot ion for summary judgment in Staples v. CBL & Assoc. , 15 S.W.3d 83 (Tenn. 2000):-4- The standards g

overning an app

ellate court's review

of a motion for summary judgment are we

ll se ttled. Since our inquiry involves purely a question of law, no presumption of correctne ss attaches to the lower court's judgment, and our task is confined to reviewing the record to determine whether the req uirements of Tenn. R. Civ. P. 56 have been met. See Hunter v. Bro wn , 955 S.W.2d 49, 50-51 (Tenn.1997); Cowden v. Sovran Bank/Centr al South , 816 S.W.2d 741, 744 (Tenn.1991). TennesseeRule of Civil Procedure 56.0[4] provides that summary

judgment is appropriate where: (1) there is no genuine issue with rega

rd to the material

facts relevant

t o the clai m or defense contained

in the motion, see Byrd v. Hall , 847 S.W.2d 208, 210 (Tenn.1993); and

(2) the moving pa

rty is entitled to a judgment
as a matter of law on the undisputed facts. See Anderson v. Standa rd Register Co. , 857 S.W.2d 555, 559 (Tenn.1993). The moving party has the burden of

proving that its

motion satisfies the

se requirements

. See Downen v. Allstate Ins. Co. , 811 S.W.2d 523, 524 (Tenn.1991). When the party seeking summary judg ment makes a prope rly suppo rted motion, the burden shifts to the nonmoving party to set forth specific f

acts es tablishing the existence of disputed, material facts which must be resolved by the trier of fact. See Byrd v. H all , 847 S.W.2d at 215.

To pro perl y sup por t it s mo tio n, t he m ovi ng pa rty m ust either affirmatively

negate an essential element of the non -m oving 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 par ty fails to negate a claimed basis for the suit, the non-movi n g party's burden to produce evidence estab

lishing th e existe nce 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

cla imed basis for the action, the non-moving party

may not simply

rest upon the plea

dings, 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 contex t are also well established. Courts must view the evidence in the light most fa vorable to the nonmoving party and mu st also draw all reason

able inference

s in the nonmo

ving 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 bo

th1 We discus s the ve rsions of Tenn. R.

Civ. P. 3, 4 and 12 which were in effec t at the time Plaint

iffs obtained issuance of the fi

rst summonses and attempted s ervice of pr ocess by mail

in 1997.
-5- the facts and the inferences to be dra wn fr om the facts permi t a reasonable

person to reach o n ly 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 o r 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).

Insupport of their mo

tion for su

mma ry judgment, Defendants submitted sworn affidavits in which they deny receiving service of the first summonses and complaint and state that Peggy Campbell was notauthorized to ac cept service of

process on their b

ehalf. Defenda

nts also state in their affidavits that they were not served until October 1999. Defendants included these
swornstatements in their Rule 56 statement to which Plaintiffs failed to file a response. Rule 56.03 of the Tennessee Ru

le s of Civil Procedure provides that a summary judgment motion must be accompanied

by “a separate

concise stateme

nt of the material

facts as to which t

he 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 movin

g party’s Rule

56 statement deems admitted the facts contained in theRule 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 following: 1

If

pro cess remains unissued for 30 days or is not served or is not returned within 30 days fromissuance, regardless of thereason, the plaintiff cannot rely upon the origin al commencement to toll the running of a statute of limitations unless the plaintiff continues the actionby obta ining i ssuance 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 a

nd summons.

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

ocess by mail, in pe

rtinent part, as f

ollows:-6- [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 de fendant. 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 defau

lt 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 unsuccessf

ul, it may be tried again or

other methods auth

orized by these r

ules or by sta

tut e may be used.

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

f service once s

ervice of proce

ss 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 r e quirements of this rule; and, the return receipt shall be

sent to and file

d by th e 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 a

nd the date

of receipt of the retur n receipt from the defendant. If the return receipt is signe d b y the defendant, or

by a person designated by Rule 4.04 or by statute, service on the defenda

nt shall be complete . If not, service by mail may be attempted aga

inor other methods authorized by these rules or by statute may be used.

We first must determine whether Pla intiffs complied with Tenn. R. Civ. P. 4 and obtained service by mail of the Defendants in Ma rch 1997. Plaintiff

s had the first

process issued on March 10, 1997, and re turned 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 regard ing th e re sidence of Peggy C ampbell or her re

lationship, if any,

to Defendants.

Plaintiffs argue that they obtained ser

vice in 1997 when Peggy Campbell signed the return mail receipt bec

ause, as the mo

ther and w ife of Defenda nts, she was actin

g as Defendants’ agent. As discussed, ther e is no proof in

the record supporting Plaintiffs’ contention that Peggy Campbell is the mother and wi

fe of Defendan

ts. This argument f

ails 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 Plai

ntiffs’ counsel e

lected to attempt t

o serve Defenda

nts by mail, and th at procedure is set

forth in Tenn. R. Civ. P. 4.04(12). To ef fect service of

process by mail, Plaintiffs’ counsel was to obta in a return mail re

ceipt showi ng acceptance by Defendants “or by-7-

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:

InTennessee, rule 4.04 specifically p ermits a plaintiff to serve a defendant with process by

serving the defendant’s authorized age nt. Such a practice is pe

rmitted, regardl

ess of whether the defendant is an individual or a corporation, provided the agen t is authorized by appointment

or by law to receive service on behalf of the defendant

. . . . Boles v. TennesseeFarmers Mut. Ins. Co. , No. M1999-00727-COA-R3-CV, 2000 WL 1030837, at
* 5 (Tenn. Ct. App. Ju

ly 27, 2000); see also Pell v. City of Chattanooga , No. E1999-01712-COAR3-CV, 2000 WL 567821, at * 3-5 (Tenn. Ct. App. May 9, 2000) (applying Tenn. R. Civ. P. 4.04 to a d elinquent proper

ty tax case in whic

h the spouse of the

defendant is desi

gnated by statute t

o receive service of process by mail). From the record before us, it is undisputed that Peg gy 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 Defendant s at th e Hixson, Tennessee, address. See Tenn. R. Civ. P. 4.04( 1). In fact, with respect to one De

fendant, Seleta K

aye 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 T en n. R. Civ. P. 3 and timely obtained issuance of new process so as to toll the running of th e statutes of limita

tion on their claims. To be able to rely upon th e original commen

cement to toll the r

unning of the statut

e s o f limitation, Tenn. R. Civ. P. 3 required Plainti ffs to obtain issuan

ce of new proce

ss within one year from t he date of issuance of the first process. In contrast, the proof in the record clearl y show s Plaintiffs did not obtain new issuance of process until Septem ber 1999, two and a half years after issuance of the first process. Accordingly, Plaintiffs failed to comply wi th 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 reque

sting a stay of proc

eedings and, ther

efore, waived t

heir defense based upon lack of personal juris

diction due to insuf

ficiency of ser

vice of process.

This argument fai

ls because Defendants

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

swer asserting th

e defense of insu

fficiency of se

rvice of proces s was filed on Apri l 9, 1997, at 10:19 a.m., while Defendants’ Motion to Stay Proceedings was filed later that same date at 3:26 p.m. Defenda

nts properly preserved their Rule 12 defense in their answer and did not waive this defense by filing a later motion req uesting a stay. Te

nn. R. Civ. P. 12.08 provide s that “[a] party waives all defenses and objections which the party does not present either by motion as hereinbefore-8-

provided, or . . . in the party’ s answer or repl y . . . .” 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 an d does not take issue with venue, adequacy of service of process, personal jurisdiction, or other similar matters . . .,” then that pa rty has wa ived its objections). Moreover, Plaintiffs in July 1999, acknowledged

that they had not yet obtained service of Defendants in their Motion to Remove Stay inwhich they requested entry of an “[o]rder allow

ing further proc

eedings, such as perfecting service of process upon Defendants.” This Court has held that factual statements contained in pleadings may be considered a

s admissions and “a

re conclusive ag

ainst the pleader

inthe proceedings in which they were filed until

they have been

amended or withdrawn.” Pankow v. Mitchel l , 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 proceedin

gs. 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 p roceedings 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 f ile their Moti on 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 Defenda

nts conclusively e

stablish e d their affirmative defense, and, therefor e, ar e 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 Tri

al Court is affirme

d, and this matter r

ema nded 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, Darr ell L. Edwards and Ar

lene Edwards, and their surety.

___________________________________ D. MICHAEL SWINEY, JUDGE