IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
February 1, 2012 Session
CHRISTY IRENE FAIR v. STEPHEN LYNN COCHRAN
Appeal from the Circuit Court for Knox County
No. 1-624-09 Dale C. Workman, Judge
No. E2011-00831-COA-R3-CV -FILED - MARCH 30, 2012
C HARLES D. S USANO, JR., J., dissenting.
I agree completely with the majority that return of “proof of service to the court” 412
days after process was issued by the trial court clerk is hardly a “prompt[]” return of proof
of service. I also agree – as I must – that such a delay in the return of proof of service
violates the clear mandate of the first sentence of Tenn. R. Civ. P. 4.03(1): “The person
serving the summons shall promptly make proof of service to the court . . .” (Emphasis
added.)
Rule 4.03(1) does not expressly, or by clear implication, provide that a failure to
“promptly” return proof of service of process to the court will prevent the filing of a
complaint and the later proper service of process from “commenc[ing]” a civil action
pursuant to Tenn. R. Civ. P. 3. I believe the result reached by the majority, i.e., a failure to
promptly return proof of service of process means the suit is not “commenced,” is contrary
to the holding in the McNeary case cited by the majority:
Tennessee law is clear that commencement of an action is
accomplished only when a complaint is filed and process is
served.
McNeary, 2011 WL 863006 at *8. To the extent that Faulks v. Crowder, 99 S.W.3d 116
(Tenn. Ct. App. 2002), by analogy, can be read to mean otherwise and to support the
majority’s conclusion, I disassociate myself from the holding in Faulks.
I would reverse the trial court’s judgment. If the plaintiff can prove effective service
of process, I believe her cause of action was commenced with the filing of complaint on
December 11, 2009. The failure to promptly return proof of service to the court may call into
question whether the process was properly served but, as previously noted by me, a lack of
promptness in the filing of the return, standing alone, does not, in my judgment, prevent the
commencement of the suit.
I respectfully dissent.
_______________________________
CHARLES D. SUSANO, JR., JUDGE
-2-