                                                                                            12/13/2018
                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                               November 14, 2018 Session

    DEBORAH HART v. MEMPHIS LIGHT GAS & WATER DIVISION

                   Appeal from the Circuit Court for Shelby County
                     No. CT-001912-15 Valerie L Smith, Judge
                      ___________________________________

                            No. W2018-00254-COA-R3-CV
                        ___________________________________


The parties dispute whether, under Tennessee Code Annotated section 16-15-710, the
applicable statute of limitations was tolled by service of process when no proof of service
was returned to the court as required under Tennessee Code Annotated section 16-15-
902(a). Under the holding in Fair v. Cochran, 418 S.W.3d 542 (Tenn. 2013), we
conclude, as did the trial court, that Appellee’s failure to make return to the court did not,
ipso facto, constitute a lack of service of process such that the statute of limitations
expired. Affirmed and remanded.

        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                             Affirmed and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the court, in which RICHARD H.
DINKINS and ARNOLD B. GOLDIN, JJ., joined.

Sean A. Hunt, Memphis, Tennessee, for the appellant, Memphis Light, Gas, & Water
Division.

Thomas R. Greer, R. Sadler Bailey, and Vance Montgomery, Memphis, Tennessee, for
the appellee, Deborah Hart.


                                         OPINION

      This case arises from a car accident that occurred on March 16, 2009. Appellee
Deborah Hart’s vehicle was struck by a vehicle owned and operated by Appellant
Memphis Light, Gas, and Water Division (“MLGW”). Ms. Hart’s original attorney,
Bradley Ball, filed a civil warrant in the general sessions court on March 12, 2010. On
March 13, 2010, Mr. Ball served MLGW by certified mail. In the trial court, Mr. Ball
stated that the certified mail receipt was returned to him properly executed. At this point,
a dispute of fact arose. Mr. Ball alleges that he made return of service to the general
sessions court clerk’s office. This return, however, was not found. Mr. Ball claims that
the clerk’s office misplaced it; MLGW claims that Mr. Ball never made the return. For
reasons which are unclear, the case was not initially docketed by the clerk’s office.
However, MLGW’s attorney appeared before the general sessions court on September
10, 2010, which was the date placed on the original civil warrant when the case was filed.
At a later hearing before the general sessions court, Appellant’s original attorney, Ms.
Cozart, admitted that Appellant was, in fact, served with process. There is no transcript
of the general sessions court proceedings. On or about April 24, 2015, MLGW filed a
motion to dismiss due to the lack of proof of return of service in the court’s file.
Thereafter, on April 27, 2015, Mr. Ball took a defense verdict and then filed an appeal to
the circuit court that same day.

       In the circuit court, MLGW again filed a motion to dismiss on the ground that Mr.
Ball’s failure to make a return on the service of process negated proper service and
resulted in the expiration of the statute of limitations. At the hearing on the motion, Mr.
Ball testified that he served the Appellant by certified mail in March 2010 and made
return to the general sessions court clerk. Mr. Ball further testified that MLGW’s original
attorney, Ms. Cozart, admitted, during a general sessions court appearance, that MLGW
received service by certified mail. MLGW did not call Ms. Cozart as a witness, nor did it
put on any other countervailing proof to challenge Mr. Ball’s testimony. The circuit
court denied MLGW’s motion finding that Mr. Ball’s testimony was credible and that the
statute of limitations had not expired. MLGW’s request for interlocutory appeal was
denied, and the case proceeded to trial on January 18, 2018. The trial court ultimately
entered judgment for $155,084.77 in favor of Ms. Hart. MLGW appeals.

        The sole issue for review is whether the trial court erred in finding that the failure
to make return on the service of process did not constitute insufficient service of process
resulting in the expiration of the statute of limitations.

        Because this case was tried by the court, sitting without a jury, this Court conducts
a de novo review of the trial court’s decision with a presumption of correctness as to the
trial court’s findings of fact, unless the evidence preponderates against those findings.
Wood v. Starko, 197 S.W.3d 255, 257 (Tenn. Ct. App. 2006). For the evidence to
preponderate against a trial court’s finding of fact, it must support another finding of fact
with greater convincing effect. Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71
(Tenn. Ct. App. 2000); The Realty Shop, Inc. v. R.R. Westminster Holding, Inc., 7
S.W.3d 581, 596 (Tenn. Ct. App. 1999). This Court reviews the trial court’s resolution of
legal issues without a presumption of correctness. Johnson v. Johnson, 37 S.W.3d 892,
894 (Tenn. 2001).


                                            -2-
       As noted below, the trial court made a specific finding that Mr. Ball was a credible
witness. The weight, faith, and credit to be given witnesses’ testimony lies in the first
instance with the trial court. Roberts v. Roberts, 827 S.W.2d 788, 795 (Tenn. Ct. App.
1991). With regard to credibility determinations, this Court has stated:

       When a trial court has seen and heard witnesses, especially where issues of
       credibility and weight of oral testimony are involved, considerable
       deference must be accorded to the trial court's factual findings. Further,
       “[o]n an issue which hinges on the credibility of witnesses, the trial court
       will not be reversed unless there is found in the record clear, concrete, and
       convincing evidence other than the oral testimony of witnesses which
       contradict the trial court’s findings.”

In re M.L.P., 228 S.W.3d 139, 143 (Tenn. Ct. App. 2007) (citing Seals v.
England/Corsair Upholstery Mfg. Co., Inc., 984 S.W.2d 912, 915 (Tenn. 1999)); In re
Estate of Leath, 294 S.W.3d 571, 574–75 (Tenn. Ct. App. 2008). Accordingly, where
issues of credibility and weight of testimony are involved, this Court will accord
considerable deference to the trial court’s factual findings. In re M.L.P., 228 S.W.3d
139, 143 (Tenn. Ct. App. 2007) (citing Seals v. England/Corsair Upholstery Mfg. Co.,
984 S.W.2d 912, 915 (Tenn. 1999)).

       Furthermore, to the extent that the issue requires a review of statutory construction
and interpretation, it presents a question of law, which we review de novo without a
presumption of correctness. See Cunningham v. Williamson Cnty. Hosp. Dist., 405
S.W.3d 41, 43 (Tenn. 2013) (citing Mills v. Fulmarque, Inc., 360 S.W.3d 362, 366
(Tenn. 2012)); Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 308 (Tenn. 2012);
Estate of French v. Stratford House, 333 S.W.3d 546, 554 (Tenn. 2011). Our Supreme
Court has summarized the principles involved in reviewing statutory construction as
follows:

       Our consideration of a question of statutory construction is without any
       deference to the trial court. See In re Estate of Tanner, 295 S.W.3d 610,
       613 (Tenn. 2009). When addressing the interpretation of a statute, well-
       defined precepts apply. Colonial Pipeline, [Co. v. Morgan,] 263 S.W.3d
       [827,] at 836 [(Tenn. 2008)]. “Our primary objective ... is to carry out the
       intent of the legislature without unduly broadening or restricting the
       statute.” Nichols [v. Jack Cooper Transport Co.,] 318 S.W.3d [354,] at
       359-60 [(Tenn. 2010)]. When a statute is clear, we apply the plain meaning
       without complicating the task, and simply enforce the written language.
       Abels ex rel. Hunt v. Genie Indus., Inc., 202 S.W.3d 99, 101-[1]02 (Tenn.
       2006) (quoting Calaway ex rel. Calaway v. Schucker, 193 S.W.3d 509,
       516 (Tenn. 2005)). When a statute is ambiguous, however, we may refer to
       the broader statutory scheme, the history of the legislation, or other sources
                                           -3-
       to discern its meaning. Colonial Pipeline, 263 S.W.3d at 836. Further,
       courts must presume that our General Assembly was aware of its prior
       enactments and knew the state of the law at the time the legislation was
       passed. Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995).


Mansell v. Bridgestone Firestone N. Am. Tire, LLC, 417 S.W.3d 393, 400 (Tenn. 2013).
With the foregoing principles in mind, we turn to the issue.

        The crux of MLGW’s appellate argument is that Ms. Hart’s attorney, Mr. Ball, did
not comply with the requirements of Tennessee Code Annotated section 16-15-902
concerning service of process in the general sessions court. The statute provides, in
relevant part, that “[a]ny person serving the process from the general sessions court shall
promptly and within the time during which the person is served must respond, make
proof of service to the court . . . .” Tenn. Code Ann. § 16-15-902(a). Specifically,
MLGW contends that Mr. Ball failed to “make proof of service” to the general sessions
court clerk after MLGW was served by certified mail. Arguing that making proof of
service to the court is mandatory to achieve proper service, MLGW contends that it was
never properly served. Accordingly, MLGW contends that, in order to toll the applicable
statute of limitations, Ms. Hart was required to comply with Tennessee Code Annotated
section 16-15-710, which provides:

       The suing out of a warrant is the commencement of a civil action within the
       meaning of this title, whether it is served or not; but if the process is
       returned unserved, plaintiff, if plaintiff wishes to rely on the original
       commencement as a bar to the running of a statute of limitations, must
       either prosecute and continue the action by applying for and obtaining new
       process from time to time, each new process to be obtained within nine (9)
       months from return unserved of the previous process, or plaintiff must
       recommence the action within one (1) year after the return of the initial
       process not served.

It is undisputed that Ms. Hart did not follow the procedure set out in section 16-15-710
for unserved process. Rather, Ms. Hart relied on the original commencement of the
action in general sessions court to toll the statute of limitations. In the first instance, the
plain language of section 16-15-710 outlines the mechanisms for preserving
commencement of a civil action “if the process is returned unserved.” Here, Mr. Ball
testified that the process was returned served (not unserved), but he acknowledges that
the return receipt is absent from the general sessions record. Although there is a dispute
as to whether Mr. Ball or the general sessions court clerk’s office is at fault for the
missing return, the gravamen is whether the lack of proof of return of service of process
in the general sessions court results in ineffective service of process such that the statute
of limitations was not tolled by commencement of the action in the general sessions
                                             -4-
court.

        The Tennessee Supreme Court has addressed the foregoing question in the context
of the interplay between Tennessee Rules of Civil Procedure 3 and 4.03(1). Fair v.
Cochran, 418 S.W.3d 542 (Tenn. 2013). While we acknowledge that the general
sessions court is a court of limited jurisdiction, and the rules of civil procedure are
generally inapplicable to the general sessions court, Tenn. R. Civ. P. 1., the language of
Tennessee Rules of Civil Procedure 3 and 4.03(1) is almost identical to the language used
in the general sessions court statutory counterparts to Rules 3 and 4.03(1), i.e., Tennessee
Code Annotated sections 16-15-710 and 15-15-902, respectively. By comparison,
Tennessee Rule of Civil Procedure 3 states, in relevant part, that “[a]ll civil actions are
commenced by filing a complaint with the clerk of the court. An action is commenced
within the meaning of any statute of limitations upon such filing of a complaint, whether
process be issued or not issued and whether process be returned served or unserved.”
Tennessee Code Annotated section 16-15-710, which applies strictly to general sessions
court, states, in pertinent part, that “[t]he suing out of a warrant is the commencement of
a civil action within the meaning of this title, whether it is served or not . . .” Rule 3
continues:

         If process remains unissued for 90 days or is not served within 90 days
         from issuance, regardless of the reason, the plaintiff cannot rely upon the
         original commencement to toll the running of a statute of limitations unless
         the plaintiff continues the action by obtaining issuance of new process
         within one year from the issuance of the previous process or, if no process
         is issued, within one year of the filing of the complaint.

Tenn. R. Civ. P. 3. Compare the foregoing language with Tennessee Code Annotated
section 16-15-710, which states:

         [I]f the process is returned unserved, plaintiff, if plaintiff wishes to rely on
         the original commencement as a bar to the running of a statute of
         limitations, must either prosecute and continue the action by applying for
         and obtaining new process from time to time, each new process to be
         obtained within nine (9) months from return unserved of the previous
         process, or plaintiff must recommence the actions within one (1) year after
         the return of the initial process not served.

       Now, compare Tennessee Rule of Civil Procedure 4.03(1) and Tennessee Code
Annotated section 16-15-902. Rule 4.03(1) states, in relevant part, that “[t]he person
serving the summons shall promptly make proof of service to the court and shall identify
the person served and shall describe the manner of service.” Tennessee Code Annotated
section 16-15-902(a) states: “Any person serving the process from the general sessions
court shall promptly and within the time during which the person is served must respond,
                                          -5-
make proof of service to the court and shall identify the person served and shall describe
the manner of service.”

       The side-by-side comparison, supra, shows that the language and requirements of
Rules 3 and 4.03(1) and Tennessee Code Annotated sections 16-15-710 and 16-15-902(a)
are substantively identical. Accordingly, we conclude that the Tennessee Supreme
Court’s analysis in Fair concerning the question of “whether the return of proof of
service of process 412 days after the issuance of a summons precludes [a plaintiff] from
relying upon the original commencement of the lawsuit to toll the statute of limitations,”
Fair, 418 S.W.3d at 544-45, is dispositive of the same question under Tennessee Code
Annotated sections 16-15-710 and 16-15-902(a).

        In its analysis, the Fair Court began with a discussion of the Rule 3 language,
“[a]ll civil actions are commenced by filing a complaint with the clerk of the court. An
action is commenced within the meaning of any statute of limitations upon such filing of
the complaint, whether process be issued or not issued and whether process be returned
served or unserved.” Fair, 418 S.W.3d, at 545 (emphases in original). From the
foregoing language, the court noted that Rule 3 “. . . clearly identifies the filing of the
complaint as the event that commences a civil action.” Id. The court then turned to the
remaining portion of Rule 3, which “addresses whether a plaintiff may, or may not, rely
upon the original commencement, i.e., the filing of the complaint, to toll the statute of
limitations.” Id. The court stated:

       Where process has issued, Rule 3 unambiguously instructs that the
       effectiveness of the original commencement to toll the running of a statute
       of limitations depends initially upon whether process is served within
       ninety days of issuance. If process is not served within ninety days of
       issuance, a plaintiff cannot rely upon the original commencement to toll the
       statute of limitations unless the plaintiff obtains issuance of new process
       within one year of issuance of the previous process. Tenn. R. Civ. P. 3.
       Conspicuously absent from Rule 3 is any language indicating that the
       prompt return of proof of service of process is necessary to render
       commencement effective to toll the statute of limitations . . . [T]he plain
       language of the current version of Rule 3 does not link the effectiveness of
       the original commencement to toll a statute of limitations to the return of
       proof of service of process. See Tenn. R. Civ. P. 3 advisory commission
       cmt. (1998) (“The amendment ... removes the former eventuality of failure
       to return process within 30 days.”).

Fair, 418 S.W.3d 545. (Emphasis added). Thus, the court determined that Rule 3 does
not require a plaintiff to return proof of service within ninety days to rely on the original
commencement to toll the statute of limitations. Id.
       As in the case at bar, the appellant in Fair relied on the language “[t]he person
                                             -6-
serving the summons shall promptly make proof of service to the court,” Tenn. R. Civ. P.
4.03(1) for the proposition that failure to make prompt return invalidated the service of
process. The Tennessee Supreme Court disagreed, stating:

      Rule 4.03(1) does not state that promptly returning proof of service to the
      court is necessary to accomplish service. To the contrary, “[t]he return of
      service is “‘a written account of the actions taken by the person making
      service to show to whom and how the service was made, or the reason
      service was not made.’” Watson v. Garza, 316 S.W.3d 589, 593 (Tenn. Ct.
      App. 2008) (quoting 3 Nancy Fraas MacLean, Tennessee Practice Series–
      Rules of Civil Procedure Annotated § 4:15 (4th ed.2008)). The return is a
      means to prove that service of process has actually been accomplished. See
      Royal Clothing Co. v. Holloway, 208 Tenn. 572, 347 S.W.2d 491, 492
      (1961); Brake v. Kelly, 189 Tenn. 612, 226 S.W.2d 1008, 1011 (1950).
      When a dispute arises as to whether service of process has been
      accomplished, a trial court may properly consider any delay in filing the
      return when weighing the evidence and resolving the dispute. However, no
      language in Rule 4.03(a) states or implies that the failure to return proof of
      service promptly renders commencement ineffective to toll the statute of
      limitations. So long as service of process is accomplished within ninety
      days of issuance of a summons, or new process is issued within one year of
      issuance of the previous process, a plaintiff may rely upon the original
      commencement to toll the statute of limitations. Tenn. R. Civ. P. 3.5

Fair, 418 S.W.3d 546. We concede that the version of Rule 4.03(1) applicable in Fair
differs from the language in Tennessee Code Annotated section 16-15-902(a) in that the
statute states that proof of service shall be made “promptly and within the time during
which the person is served must respond.” (Emphasis added). Concerning Rule 4.03(1),
the Fair Court noted:

      Although Rule 4.03 directs a person serving a summons to “promptly make
      proof of service to the court,” the rule does not define “promptly” by
      reference to a specific time period. In this respect, the current version of
      Rule 4.03 differs from the pre–1998 version of the rule, which essentially
      equated “promptly” with thirty days, by requiring the return to be made
      “within the time during which the person served must respond.” See Tenn.
      R. Civ. P. 4.03 advisory commission cmt. (1998) (“The amendment ...
      removes the former requirement that a return must be made within the time
      during which the person served must respond.”); see Tenn. R. Civ. P. 12.01
      (“A defendant shall serve an answer within 30 days after the service of the
      summons and complaint upon the defendant.”).

The inclusion, in our statute, of the language that was removed from Rule 4.03(1) by the
                                            -7-
1998 amendment does not negate our reliance on Fair. Like Rule 4.03(1), Tennessee
Code Annotated section 16-15-902 “does not state that promptly returning proof of
service to the court is necessary to accomplish service.” Fair, 418 S.W.3d at 546. We
acknowledge that, unlike the case at bar, the Fair plaintiff did, in fact, make return of
proof of service to the court (at day 412). Here, however, the return receipt and affidavit
are lost, and it is likely that return of proof of service will never be made on the original
process. Nonetheless, our reading of Fair leads us to conclude that Ms. Hart’s failure to
make return to the court does not, ipso facto, constitute a lack of service of process.

       For the foregoing reasons, we affirm the order of the trial court. The case is
remanded for such further proceedings as may be necessary and are consistent with this
opinion. Costs of the appeal are assessed to the Appellant, Memphis Light, Gas & Water
Division and its surety, for all of which execution may issue if necessary.




                                                  _________________________________
                                                  KENNY ARMSTRONG, JUDGE




                                            -8-
