IN THE COURT OF APPEALS OF TENNESSEE
AT MEMPHIS
February 24, 2010 Session
STEPHANIE JONES and HOWARD JONES
v.
RENGA I. VASU, M.D., THE NEUROLOGY CLINIC, and METHODIST
LEBONHEUR HOSPITAL
Appeal from the Circuit Court for Shelby County
No. CT-004911-07 Kay S. Robilio, Judge
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No. W2009-01873-COA-R10-CV - Filed April 22, 2010
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This appeal involves delay of service of process. The plaintiffs filed a complaint against
the defendants, alleging medical malpractice by the defendants almost a year earlier. The
plaintiffs delayed service on the defendants until they had an expert witness review their
claim. Summonses were issued to the defendants over eleven months after the complaint
was filed. The defendants filed a motion to dismiss or for summary judgment, alleging
insufficiency of service of process, and asserting that the plaintiffs’ claims were barred by
the one-year statute of limitations. The trial court denied the defendants’ motion. The
defendants appeal. We reverse and remand for entry of an order dismissing the
complaint, finding that the delay of prompt service of process rendered the filing of the
complaint ineffective to commence the action and stop the running of the statute of
limitations.
Tenn. R. App. P. 10; Extraordinary Appeal by Permission; Judgment of the Circuit
Court Reversed and Remanded
H OLLY M. K IRBY, J., delivered the opinion of the Court, in which D AVID R. F ARMER, J.,
and J. S TEVEN S TAFFORD, J., joined.
Emily Turner Landry and Quinn N. Carlson, Memphis, Tennessee, for
Defendant/Appellant, Methodist Healthcare-Memphis Hospitals
Jerry E. Mitchell and Justin E. Mitchell, Memphis, Tennessee, for Defendant/Appellants,
Renga I. Vasu, M.D., and The Neurology Clinic
Bryant D. Guy, Jackson, Mississippi, and Regina Guy and Joanie Perkins Potter,
Memphis, Tennessee, for Plaintiff/Appellees, Stephanie Jones and Howard Jones
OPINION
F ACTS AND P ROCEEDINGS B ELOW
Between September 13, 2006, and September 30, 2006, Plaintiff/Appellee Stephanie
Jones received medical treatment at Defendant/Appellants The Neurology Clinic and
Methodist Healthcare–Memphis Hospitals (“Methodist”), under the primary care of
Defendant/Appellant Renga I. Vasu, M.D. (“Dr. Vasu”). Ms. Jones asserts that the
medical care she received during this time period fell below the applicable standard of
care, and that she suffered serious injury as a result of the negligence of Dr. Vasu, The
Neurology Clinic, and Methodist.
On September 27, 2007, Stephanie Jones and her husband Howard Jones (collectively
“Jones” or “Plaintiffs”) filed a complaint against Dr. Vasu, The Neurology Clinic, and
Methodist (collectively “Defendants”) alleging medical malpractice.1 Jones did not
submit any summonses to the clerk for service of process on the Defendants at that time.
Instead, Jones proceeded to obtain the opinion of an expert in support of the claim of
medical malpractice. After the opinion of an appropriate expert was secured, on August
29, 2008, some eleven months after the complaint was filed, Jones had process served on
the Defendants through a private process server.
On October 29, 2008, Methodist filed its answer, denying liability and asserting, inter
alia, insufficiency of service of process and that the complaint was time-barred.
On December 12, 2008, Dr. Vasu and The Neurology Clinic filed a motion to dismiss
and, in the alternative, for summary judgment, asserting that Jones’ complaint was barred
by the one-year statute of limitations applicable to medical malpractice actions. See
T.C.A. § 29-26-116(a)(1) (2000). Citing Rule 4.01(3) of the Tennessee Rules of Civil
Procedure, the motion for summary judgment claimed that, because Jones intentionally
delayed service of process for over eleven months, the filing of the complaint was
ineffective, and the applicable limitations period expired.
On February 3, 2009, Methodist filed a motion to dismiss or, in the alternative, for
summary judgment, likewise asserting that Jones’ complaint was time-barred, for the
same reason. The motion included a notice of joinder in the motion for summary
judgment and motion to dismiss filed by Dr. Vasu and The Neurology Clinic.
On February 20, 2009, Jones filed a response to the motions to dismiss and/or for
summary judgment. In the response, Jones admitted that service of process was
intentionally delayed until August 29, 2008. Jones explained that service of process was
1
The complaint apparently mistakenly referred to Methodist as Methodist LeBonheur Hospital.
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delayed because they experienced “difficulty obtaining an opinion from an expert,
authorized to render such opinion testimony.” Had such an expert opinion not been
obtained, Jones claimed, the complaint would have been dismissed. Jones asserted that
process was issued within one year after the filing of the complaint, as required under
Rule 3 of the Tennessee Rules of Civil Procedure. Jones maintained that any delay in the
issuance and service of process was the result of excusable neglect, and asked the trial
court to enlarge the period for issuance and service of process or toll the statute of
limitations, pursuant to its authority under Rule 6.02(2) of the Tennessee Rules of Civil
Procedure.
After a hearing on the motions, the trial judge issued a letter ruling on March 31, 2009,
denying the Defendants’ motions. After citing and reviewing the applicable caselaw, the
trial court explained its reasoning:
[T]his Court is under the impression that with the amendment to rule 4.01
and the addition of subsection (3), the Tennessee Courts are more inclined
to find intentional delay of issuance of summons as rendering the complaint
ineffective to toll the statute of limitations.
However, this Court finds the plain language of Rule 3 of [the]
Tennessee Rules of Civil Procedure highly persuasive in that it allows up to
[a] year in which service of process may be issued after the filing of the
complaint. Additionally, this Court is of [the] impression that under Rule
6.02(2) of [the] Tennessee Rules of Civil Procedure, it has a wide
discretion, in circumstances of excusable neglect, to enlarge the period for
issuance and service of process and/or toll the statu[t]e of limitations. Thus,
for the sake of preserving Plaintiff’s medical malpractice claim, this Court
finds that the failure to issue summons in this case falls under excusable
neglect, and thus, the Defendants’ Motion is denied. This Court believes
that the danger of prejudice to the Defendants is not outweighed by the fact
that Plaintiff, in good faith, somewhat ahead of current law, firmly believed
that it was necessary to secure the opinion of an expert witness to be able to
go forward with its cause.
Thus, the trial court denied the Defendants’ motions to dismiss or, in the alternative, for
summary judgment.
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The Defendants filed motions for permission for interlocutory appeal pursuant to Rule 9
of the Tennessee Rules of Appellate Procedure.2 The trial court denied permission for
interlocutory appeal. The Defendants then filed an application for extraordinary appeal
pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure.3 This Court granted
the application.
I SSUES ON A PPEAL AND S TANDARD OF R EVIEW
On appeal, the issue presented is whether Jones’ intentional delay in issuance and service
of process rendered the filing of the complaint ineffective under Tenn. R. Civ. P. 4.01(3),
and thus whether Jones’ claims are time-barred.
Here, we review the trial court’s denial of the Defendants’ motions to dismiss or, in the
alternative, for summary judgment. Rule 12.02 of the Tennessee Rules of Civil
Procedure provides that if “matters outside the pleading are presented to and not excluded
by the court,” then a motion to dismiss shall be treated as a motion for summary
judgment. T ENN. R. C IV. P. 12.02. The Defendants’ motions were predicated on the date
of service of process, a matter outside the Jones’ complaint. Therefore, on appeal, we
treat the order as a denial of a motion for summary judgment.
Summary judgment is warranted when “there is no genuine issue as to any material fact
and . . . the moving party is entitled to a judgment as a matter of law.” T ENN. R. C IV. P.
2
Rule 9 of the Tennessee Rules of Appellate Procedure provides in pertinent part:
(a) Application for Perm ission to Appeal; Grounds. Except as provided in rule 10, an
appeal by permission may be taken from an interlocutory order of a trial court from which
an appeal lies to the Supreme Court, Court of Appeals or Court of Criminal Appeals only
upon application and in the discretion of the trial and appellate court.
T ENN . R. A PP . P. 9(a).
3
Rule 10 of the Tennessee Rules of Appellate Procedure provides in pertinent part:
(a) Original Application for Extraordinary Appeal; Grounds. An extraordinary appeal
may be sought on application and in the discretion of the appellate court alone of
interlocutory orders of a lower court from which an appeal lies to the Supreme Court, Court
of Appeals or Court of Criminal Appeals: (1) if the lower court has so far departed from the
accepted and usual course of judicial proceedings as to require immediate review, or (2) if
necessary for complete determination of the action on appeal as otherwise provided in these
rules. The appellate court may issue whatever order is necessary to implement review under
this rule.
T ENN . R. A PP . P. 10(a).
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56.04. We review the trial court’s conclusions of law de novo without a presumption of
correctness. Campbell v. Fla. Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996).
Accordingly, we review the denial of a motion for summary judgment de novo without a
presumption of correctness. Johnson v. LeBonheur Children's Med. Ctr., 74 S.W.3d
338, 342 (Tenn. 2002) (citing Webber v. State Farm Mut. Auto. Ins. Co., 49 S.W.3d 265,
269 (Tenn. 2001)).
A NALYSIS
It is undisputed on appeal that the alleged acts of medical malpractice occurred between
September 13, 2006 and September 30, 2006. The complaint was filed on September 27,
2007. The Defendants were served with process no earlier than August 29, 2008.
It is also undisputed that a one-year statute of limitations is applicable to Jones’ claims of
medical malpractice. Thus, unless the filing of Jones’ complaint was effective to toll the
statute of limitations, the claims set forth in the complaint are time-barred.
Rule 4.01 provides:
4.01. Summons; Issuance; By Whom Served; Sanction for Delay
(1) Upon the filing of the complaint the clerk of the court wherein the
complaint is filed shall forthwith issue the required summons and cause it,
with necessary copies of the complaint and summons, to be delivered for
service to any person authorized to serve process. This person shall serve
the summons, and the return indorsed thereon shall be proof of the time and
manner of service. . . .
***
(3) If a plaintiff or counsel for plaintiff (including third-party plaintiffs)
intentionally causes delay of prompt issuance of a summons or prompt
service of a summons, filing of the complaint (or third-party complaint) is
ineffective.
T ENN. R. C IV. P. 4.01. This Court addressed Rule 4.01(3) in Estate of Butler v.
Lamplighter Apartments, 278 S.W.3d 321 (Tenn. Ct. App. 2008). Butler involves a
wrongful death and personal injury action arising out of a fatal fire. The plaintiffs’
attorney filed the complaint within the limitations period, but made a deliberate decision
to withhold the summons because she hoped to settle the case. Addressing the
applicability of Rule 4.01(3), the Butler court stated:
The plaintiffs filed a Complaint and obtained issuance of summons
for service on each defendant prior to October 14, 2005. The filing of the
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initial Complaint, however, was not effective because counsel for Plaintiffs
intentionally caused the delay of prompt service of a summons. See Tenn.
R. Civ. P. 4.01(3). The plaintiffs did not effectively file a complaint until
after the statute of limitations had expired. Accordingly, all of the plaintiffs’
claims are time barred.
Id. at 324 (emphasis in original). Thus, because the plaintiffs’ counsel intentionally
delayed issuance of the summons, the Butler court found under Rule 4.01(3) that the
filing of the complaint was ineffective to commence the action and toll the statute of
limitations.
Similar reasoning was employed in Jones v. Cox, No. W2008-00729-COA-R9-CV, 2008
WL 4981063 (Tenn. Ct. App. Nov. 25, 2008), perm. app. denied June 1, 2009. In Jones,
the plaintiff filed a complaint alleging legal malpractice. However, at that time, the case
that was the basis for the legal malpractice claim was not completely resolved. Id. at *1.
A summons was issued the day the legal malpractice complaint was filed, but service was
not attempted until some nine months later. Id. at *2.
During the intervening nine months, the plaintiff’s attorney engaged in numerous
settlement discussions. Id. Believing that he had time to effect service of process under
Rule 3 of the Tennessee Rules of Civil Procedure, the attorney delayed service until the
underlying case was resolved on appeal.4 Id. at *3. After service was effected, the
defendant lawyer filed a motion to dismiss, asserting that the legal malpractice claim was
time-barred, citing Rule 4.01(3). Id. at *1. The trial court denied the motion to dismiss,
and the defendant lawyer appealed.
On appeal, this Court explained:
Under Tenn. R. Civ. P. 4.01(3) it is the intent to withhold service of process
that is the test. From . . . [the plaintiff’s attorney’s] own sworn statements,
it is clear that he intentionally withheld service of process in this case, albeit
for a very reasonable purpose. As we determined in Butler, . . . an
intentional delay under Tenn. R. Civ. P. 4.01(3) mandates a conclusion that
the original complaint was not effectively filed.
Id. at *5. Therefore, the Jones court found that, even though service was delayed for a
reasonable purpose, the fact that service was intentionally delayed “mandated” a finding
4
The plaintiff’s counsel in Jones explained: “I did not intentionally delay service of the complaint on [the
defendant lawyer] to achieve any tactical advantage or benefit. Service on [the defendant lawyer] was solely
withheld in order to see whether the [underlying] case . . . would be salvaged.” Jones, 2008 WL 4981063,
at *3.
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that the filing of the complaint was ineffective to commence the action and toll the statute
of limitations. Consequently, the appellate court reversed the trial court’s decision and
remanded the case for entry of an order granting the defendant lawyer’s motion to
dismiss. Id.
We find that Butler and Jones are squarely on point and applicable to the case at bar. In
this case, Jones’ attorney intentionally delayed service of process in order to obtain an
expert opinion to support the medical malpractice claim. As in Butler and Jones, the
result may be harsh, but the directive in Rule 4.01(3) is clear. If the plaintiff or his
counsel “intentionally causes delay of prompt issuance . . . or prompt service of a
summons, filing of the complaint . . . is ineffective.” T ENN. R. C IV. P. 4.01(3). Thus, we
find that the filing of Jones’ complaint was ineffective to commence the action and the
complaint must be dismissed as time-barred.
The decision of the trial court is reversed and the cause is remanded for entry of an order
granting summary judgment in favor of the Defendants. Costs of this appeal are taxed
against Plaintiff/Appellees Stephanie Jones and Howard Jones, for which execution may
issue, if necessary.
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HOLLY M. KIRBY, JUDGE
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