JERRY ALLEN ESTIS and SHEILA       )
MARIE ESTIS,

      Plaintiffs/Appellees,
                                   )
                                   )
                                   )
                                                        FILED
                                   )   Maury Circuit
                                                        December 30, 1997
VS.                                )   No. 1759
                                   )
                                                        Cecil W. Crowson
WILLIAM CARROLL KELLEY             )
                                                       Appellate Court Clerk
and PHILLIP WAYNE KELLEY,          )   Appeal No.
                                   )   01-A-01-9709-CV-00513
      Defendants/Appellants,       )



                  IN THE COURT OF APPEALS OF TENNESSEE
                       MIDDLE SECTION AT NASHVILLE


              APPEAL FROM MAURY COUNTY CIRCUIT COURT
                       AT COLUMBIA, TENNESSEE


                    HONORABLE ROBERT L. JONES, JUDGE



Barbara J. Walker, #007093
P.O. Box 1574
Columbia, TN 38402-1574
ATTORNEY FOR PLAINTIFFS/APPELLEES


William Carroll Kelley
TDOC #97104
SCCF/DB-230
P.O. Box 279
Clifton, TN 38425-0279
PRO SE FOR DEFENDANTS/APPELLANTS



                        AFFIRMED AND REMANDED.



                                  HENRY F. TODD
                                  PRESIDING JUDGE, MIDDLE SECTION




CONCUR:

BEN H. CANTRELL, JUDGE
SAMUEL L. LEWIS, JUDGE
JERRY ALLEN ESTIS and SHEILA                       )
MARIE ESTIS,                                       )
                                                   )
        Plaintiffs/Appellees,                      )
                                                   )     Maury Circuit
VS.                                                )     No. 1759
                                                   )
WILLIAM CARROLL KELLEY                             )
and PHILLIP WAYNE KELLEY,                          )     Appeal No.
                                                   )     01-A-01-9709-CV-00513
        Defendants/Appellants,                     )



                                      OPINION

        On June 22, 1983, this suit was filed on behalf of Jerry Allen Estis and Shelia Marie

Estis, minor children, for the wrongful death of their parents at the hands of William Carroll

Kelley and Phillip Wayne Kelley on June 23, 1982.



        On July 6, 1983, appellant, acting without counsel filed a pleading containing the

following caption, dual titles and initial text;

                William Carroll Kelley, Pro-Se
                       Defendant

                VS.                                      Case No. 1759

                Jerry Allen Estis,
                Shelia Marie Estis,
                Lois Collins
                Jerry Allen Estis
                Diane Collins Estis
                of Maury County, Tennessee
                Columbia, Tennessee
                       Plaintiff(s)

                 MOTION TO DISMISS CIVIL ACTION NUMBER 1759

                                 Answer of Defendant Kelley

                Come the defendant William Carroll Kelley, and for his
                answer to the complaint filed herein states:

                                         First Defense

                That the complaint filed herein fails to state a claim against
                defendant Kelley, upon which any form of relief can be
                granted.




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                                          Second Defense

                1.     Defendant admits that he was allegelly (sic) charged
                and convicted for the offense of murder in the first degree of
                Gary Allen Estis and Diane Collins Estis, the alleged
                deceased in the complaint on June 23, 1982.

                2.      That defendant has no control over the brining (sic) up
                of the deceased childrens, as he is have a family and have the
                same problems as the plaintiff(s) in this action, and have no
                one to support nor bring his childrens up, and to grant said
                complaint to the plaintiff would be an unjust as defendant
                have no means of money’s to support his family and therefore
                constitute double jeopardy to try and put twise (sic) against
                defendant any action other than what the tring (sic) court have
                placed upon the defendant, and defendant ask that the suit be
                dismissed as he cannot affordecthe (sic) cost nor the funds
                that the plaintiff(s) are now seeking.

                3.      That the defendant ask that the civil action be
                dismissed against him as he feel that the life sentence by the
                court is purnishment (sic) for the alleged offense that he was
                accused and convicted of.


        The remainder of the document is immaterial to the merits of this appeal.

        On July 19, 1983, an answer was filed for appellant by a licensed attorney wherein

appellant admits his conviction of first degree murder for the killing of plaintiffs’ parents, but

denies civil liability for their death.



        On July 7, 1997, said defendant, acting without counsel, filed a pro-se answer in which

he denied guilt for the killing.



        On July 7, 1997, the Trial Court entered a non jury judgment deciding fault 100% against

both defendants, awarding judgment in favor of both plaintiffs for $125,000 compensatory and

$250,000 punitive damages.



        Said William Carroll Kelley filed notice of appeal and has presented the following issues

for review:

                 I.     Whether the Circuit Court for Maury County,
                Tennessee, erred by and through the failure to dismiss
                Plaintiff’s “Complaint for Wrongful Death” when the

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               Plaintiff’s failed to issue process of the June 22, 1983,
               Summons and Complaint until on or around June 27, 1997,
               thus in violation of Defendant’s/Appellant’s due process
               rights under the Fifth Amendment to the Constitution of the
               United States, and Article 1 § 9 of the Tennessee
               Constitution.

                II.    Whether the Circuit Court for Maury County,
               Tennessee, erred by and through the failure to dismiss
               Plaintiff’s “Complaint for Wrongful Death” when the
               Summons used to establish issuance or service of the attached
               complaint was not signed by the clerk of the court as required
               by Rule 4.02 of the Rules of Civil Procedure; T.C.A. §§ 20-
               2-103, and 26-2-114, and Article 6 § 12 of the Tennessee
               Constitution.

               III.    Whether the Circuit Court for Maury County,
               Tennessee, erred by and through the failure to dismiss
               Plaintiff’s “Complaint for Wrongful Death” when the
               Plaintiff’s failed to timely prosecute, thus in violation of Rule
               41.02 of the Tennessee Court Rules Annotated.

               IV.    Whether the Circuit Court for Maury County,
               Tennessee, erred by and through the failure to address and or
               rule on the Appellant’s Motion to Dismiss Complaint for
               Wrongful Death, attached to his Answer.


                                     FIRST TWO ISSUES

                                    Failure to Issue Process


                      On December 2, 1997, appellant filed his reply brief
               in which he states:

                       The Appellant would respectfully aver that due to the
               amount of time having passed since receiving the Summons
               and Complaint through the United States Mail in 1983, and a
               lapse in memory, he has incorrectly stated a fact. Appellant
               would hereby advise this Honorable Court that the Appellee
               is correct. That appellant did receive both, therefore,
               withdraws that particular argument.

                       Appellant, however, would argue that the Appellee
               has stated that Appellant was served in person and that the
               Summons was read to him in person. This is false. Appellant
               received the Summons and Complaint in the Mail.


       Attached to said reply brief is a copy of the summons which bears the signature of the

Clerk, both on the face of the summons and under the teste on its reverse. Evidently, appellant

has waived his first two issues.



                                               -4-
       Although not stated as an issue, appellant argues that he was not personally served as

stated in the return of the summons, but was served by mail. The record does not indicate that

this complaint was timely presented to the Trial Court. It is therefore not available on appeal.

Lawrence v. Stanford, Tenn. 1983, 655 S.W.2d 927; Harrison v. Schrader, Tenn. 1978, 569 Soit

822.



       Moreover, the question of manner of service is waived by the filing of a general answer

without reservation of the manner of service. N.C. & St.L. Ry Co. v. Williamson, 137 Tenn. 153,

192 S.W. 385 (1917; Blue Grass Canning Co. v. Wardman, 103 Tenn. 179, 525 S.W. 137

(1899); Walkup v. Covington, 18 Tenn. App. 117, 73 S.W.2d 718 (1934).



       In the present case, appellant admits that he had adequate notice of the suit against him

and that he made general responses thereto, both by counsel and pro se.



       No merit is found in the complaint as to manner of service.



                                         THIRD ISSUE

                                      Failure to Prosecute



       Appellant cites T.R.C.P. Rule 41.02 which reads in pertinent part as follows:

TRCP 41.02(1)

                       Involuntary Dismissal - Effect Thereof. - (a) For
               failure of plaintiff to prosecute or to comply with these rules or
               any order of court, a defendant may move for dismissal of an
               action or of any claim against the defendant.


       Appellant complains of the 14 years delay in disposing of the suit.



       Appellees respond that the trial was delayed by their minority. Nevertheless, Rule 41.02

does not mandate a dismissal for failure to press for a trial.       The dismissal for failure to



                                               -5-
prosecute lies within the discretion of the Trial Judge. White v. College Motors, 212 Tenn. 384,

370 S.W.2d 476 (1963).



       Moreover, this record does not reflect that this issue was presented to the Trial Judge.

It is therefore not available on appeal. See authorities cited above.



                                       FOURTH ISSUE

                                   Failure to Rule on Motion



       The motion to dismiss on the merits has been carefully examined, and nothing is found

therein to justify a modification or reversal of the judgment of the Trial Court which is affirmed

at the cost of appellant. The cause is remanded to the Trial Court for collection of its costs.



                          AFFIRMED AND REMANDED



                                               ___________________________________
                                               HENRY F. TODD
                                               PRESIDING JUDGE, MIDDLE SECTION




CONCUR:




BEN H. CANTRELL, JUDGE



SAMUEL L. LEWIS, JUDGE


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