                                                                                              08/06/2020
                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                   June 11, 2020 Session

  DOROTHY ESKRIDGE, WIFE AND NEXT OF KIN OF CURTIS ESKRIDGE,
     DECEASED v. NHC HEALTHCARE FARRAGUT, LLC, ET AL.

                    Appeal from the Circuit Court for Knox County
                      No. 3-34-18 Deborah C. Stevens, Judge
                       ___________________________________

                            No. E2019-01671-COA-R3-CV
                        ___________________________________


This appeal arises from a healthcare liability action. In these proceedings, the plaintiff filed
a complaint against the defendants in January 2018. The Trial Court issued summonses
the following day, and the plaintiff’s attorney took the summonses to serve through private
process instead of through the local sheriff’s department. Service was subsequently
completed on the defendants’ registered agent eighty-nine days after issuance of the
summonses. The defendants filed an answer raising as an affirmative defense that the
defendants had not been properly served with process pursuant to Tennessee Rule of Civil
Procedure 4. The returns for the original summonses were not filed with the Trial Court
until January 2019. The plaintiff filed a motion to strike the defendants’ affirmative
defense alleging that the defendants had not sufficiently pled it pursuant to Tennessee Rule
of Civil Procedure 8.03. Thereafter, the defendants filed a motion to dismiss pursuant to
Tennessee Rules of Civil Procedure 4.01(3) and 12.02(4)-(5), alleging intentional delay of
process, insufficient service of process, and insufficient process. The Trial Court denied
the plaintiff’s motion to strike the affirmative defense and granted the defendants’ motion
to dismiss. The plaintiff appeals. Upon a review of the record, we affirm the Trial Court’s
denial of the plaintiff’s motion to strike but reverse the Trial Court’s grant of the
defendants’ motion to dismiss.

        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                Affirmed in Part, Reversed in Part; Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.

Linn Guerrero, Knoxville, Tennessee, for the appellant, Dorothy Eskridge, wife and next
of kin of Curtis Eskridge, deceased.
Rachel P. Hurt, Knoxville, Tennessee, for the appellees, National Health Realty, Inc.;
National Health Corporation; National HealthCare Corporation; NHC Healthcare/Farragut,
LLC; and NHC/Delaware, Inc.


                                        OPINION

                                       Background

       Dorothy Eskridge, wife and next of kin of Curtis Eskridge, deceased, (“Plaintiff”)
filed a healthcare liability action on January 31, 2018. Summonses were issued for the
defendants, NHC Healthcare/Farragut, LLC; National Healthcare Corporation; National
Health Corporation; National Health Realty, Inc.; and NHC/Delaware, Inc. (collectively,
“Defendants”), on February 1, 2018. Plaintiff’s attorney took the summonses to serve
through private process instead of utilizing service through the local sheriff’s department.
One of Plaintiff’s attorneys personally served the summonses on Defendants through their
registered agent, National Registered Agents, Inc., on May 1, 2018, eighty-nine days after
issuance of the summonses.

        In June 2018, Defendants filed an answer, denying liability and asserting as one of
their affirmative defenses their denial that Plaintiff had properly served Defendants with
process. Defendants’ answer stated as follows, in pertinent part:

       In further affirmative defense, it is denied that Plaintiff properly served
       Defendants in accordance with Rule 4 of the Tennessee Rules of Civil
       Procedure, and for same, Defendants move that the claims against them be
       dismissed in accordance with Rule 12.02(4) and (5) of the Tennessee Rules
       of Civil Procedure.

       On January 4, 2019, Plaintiff filed the returns of the original summonses with the
Trial Court. Each summons reflected the same return information. On the returns, the
individual serving process stated that he had received the summonses on February 1, 2018,
and certified that on May 1, 2018, he had “served this summons and Complaint in the
following manner: personal service on National Registered Agents, Inc., Samantha
Sutton.” The summonses were signed by one of Plaintiff’s attorneys, who had served the
summonses on Defendants’ agent.

       Subsequently on January 11, 2019, Plaintiff filed a “Motion to Dismiss or Strike
Insufficiency of Service of Process or Insufficiency of Process Defense,” alleging there
was no basis to assert such defense. According to Plaintiff, Defendants were served within
ninety days of issuance of the summons. Alternatively, Plaintiff argued that Defendants

                                           -2-
waived this affirmative defense because they “merely cited service was not properly made
under Tenn. R. Civ. P. 4” and “gave no factual basis [in their answer] as to why service
was not proper” as required by Tennessee Rule of Civil Procedure 8.03, which requires
Defendants to set forth facts “in short and plain terms” supporting their assertion of an
affirmative defense.

       On January 17, 2019, Defendants filed a motion to dismiss the action, alleging that
Plaintiff failed to timely serve the summonses and complaint on Defendants. According
to Defendants’ motion, Defendants were not served until eighty-nine days after the
summonses were issued, which Defendants argue was not “contemporaneously with” or
“soon after” the summonses were issued. Defendants further argue that “nothing but the
intentional decision not to serve the summons and Complaint explains the delay in service
of the Complaint” and that “[n]o ‘efforts’ were made until May 1, 2018.”

        In their motion, Defendants stated that the registered agent for all Defendants was
the same, National Registered Agents, Inc., and their address was known to Plaintiff’s
lawyer at the time the summonses were issued. Defendants place emphasis on the location
of National Registered Agent, Inc.’s office, which was located one block east from the
Knox County Circuit Court Clerk’s Office, where the summonses were issued. According
to Defendants, “[s]o as to not cause intentional delay, upon leaving the Courthouse, the
Complaints and summonses could have been served via hand-delivery by walking one
block east.” Defendants also assert that Plaintiff could have served Defendants by U.S.
Mail. Defendants further stated that the law office of Plaintiff’s counsel was located 0.5
miles from the facility of the defendant, NHC Healthcare/Farragut, LLC, and that “but for
intentional delay, the summons and Complaint could have been served on Defendant
facility the same day that the summonses were issued.”

         As part of its argument that Plaintiff intentionally delayed service, Defendants point
to the fact that Plaintiff’s counsel requested issuance of alias summonses on January 4,
2019, and promptly served Defendants’ agent for process five days thereafter. Defendants
stated that the alias summonses were served within five days and was prompt service of
the alias summonses. However, Defendants argued that “because the original summonses
were served within 90 days, the alias summonses are not effective to toll the one-year
statute of limitations.”       According to Defendants’ motion, Plaintiff had intentionally
delayed service of the original summonses, and therefore, the complaint was not effective
to toll the statute of limitations. Defendants attached to their motion to dismiss the returns
of the summonses served upon them.

       In January 2019, Plaintiff filed a response to the motion to dismiss. Plaintiff
requested the Trial Court deny the motion to dismiss due to the lack of evidence presented
by Defendants that Plaintiff had intentionally delayed service of process. Plaintiff argued
that Defendants must prove intent and that proving negligence or even gross negligence by

                                             -3-
Plaintiff in waiting to serve Defendants until day eighty-nine was insufficient to prove
intent as required for Tennessee Rule of Civil Procedure 4.01(3). According to Plaintiff,
“Defendants must prove Plaintiff intentionally did not serve promptly versus inadvertently
or even stupidly forgetting to serve until day 89,” and they had not attempted to prove this.

       Plaintiff further alleged that Defendants had acknowledged that they were served
with process within ninety days of issuance of the summonses which Plaintiff argued was
“per se prompt service.” Additionally, Plaintiff averred that Defendants bear the burden
of proving intentional delay and that a motion for summary judgment would be necessary
instead of the motion to dismiss before the Trial Court. Plaintiff further argued that
Defendants had waived any defense based on insufficiency of service of process because
they had “cagily refused to reveal the factual basis of the defense” in their answer and only
provided this factual basis after Plaintiff moved to strike the defense.

        The Trial Court entered an order in August 2019, denying Plaintiff’s motion to strike
the affirmative defense and granting Defendants’ motion to dismiss. The Trial Court
considered “documents outside the pleadings but within the file as maintained by the office
of the Circuit Court Clerk” and stated that Plaintiff had not introduced additional evidence
in the record other than responses to previously filed discovery. The Trial Court analyzed
case law and concluded as follows concerning the issue of intentional delay of prompt
service of the summonses:

               In the case at hand, it is the position of the Defendants that plaintiff’s
       counsel intentionally delayed the issuance of service of process. The
       Defendant notes that the summons was promptly issued and the record of the
       Clerk of the Court indicates that the summons was going to be issued by the
       attorney for the plaintiff. The face of the summons reflects that the Plaintiff
       identified and chose to serve the Defendants through a corporate registered
       agent with a business address. The business address of the Registered Agent
       appears on the face of the summons. The Defendants argue, and this Court
       takes judicial notice of the fact, that the office of the Circuit Court Clerk is
       in the City-County Building located at 400 Main Street, Knoxville,
       Tennessee and the office for the agent for service of process for all
       defendants is located at 800 Gay Street, Knoxville, Tennessee, otherwise
       identified as the First Tennessee Bank Building, which is less than one block
       from the entrance to the courthouse. Additionally, the Defendant argues that
       the Plaintiff could have served the summons by first-class mail. The Court
       takes judicial notice of the fact that delivery by first-class mail would take
       significantly less time than 89 days.

              Plaintiff responds to the issue of lack of prompt service by stating that
       service was accomplished within 90 days and 90 days is “per se” proof of

                                             -4-
prompt service. Plaintiff’s interpretation of Rule 4.01(3) is inconsistent with
the plain meaning of the statute. As the Advisory Commission Comments
[2016] state: “[T]he underlying rationale for the subdivision (3) is that a
person or entity named as a defendant in a complaint is entitled to learn
without undue delay that the person or entity has been sued; although good-
faith efforts to serve the defendant can necessarily take some time,
subdivision (3) means that the plaintiff or plaintiff’s counsel cannot
intentionally delay the issuance or service of process for tactical reasons.”
Rule 4.03(1) requires that the person serving the summons identify the
person served and the manner of service. Rule 4.01(1) states the endorsed
return shall be proof of time and manner of service. See also, Royal Clothing
Co. v. Holloway, 208 Tenn. 572, 574, 347 S.W.2d 491, 492 (1961). (Absent
fraud, an officer’s return is prima facie evidence that the facts stated in the
return are true). In this case, the return of service indicates that there was
personal service on National Registered Agents, Inc. which is the party and
address identified in the summons when it was issued on February 1, 2018.
Nothing on the return indicates that the registered agent was served at an
address different than as set forth on the face of the summons. If this Court
were to find that counsel can wait for 89 days to serve, then subsection (3) of
Rule 4.01 has no meaning or purpose. Courts must interpret a statute or rule
by giving the words their ordinary and plain meaning. Lind v Beaman
Dodge, Inc., 356 S.W.3d 889, 895 (Tenn. 2011).

         While this Court is aware of the consequences of a ruling that there
was an intentional delay in service, this Court does not believe it can read
Rule 4.01(3) to define prompt service as “any time within 90 days”. Rule
4.01 uses the word “prompt[ly]” in both subsection (1) and subsection (3).
The Advisory Commission Comments to 4.01(1) indicates that the use of the
word “promptly” is “intended to emphasize that the clerk must issue the
summons contemporaneously with, or soon after, the filing of the
complaint”. It would be a strained meaning of “prompt” in 4.01(3) to define
it in a significantly different manner than in subsection (1). Tennessee Code
Annotated § 16-15-901 and 902 address service of civil warrants in general
sessions court. Like Rule 4.01, plaintiff’s counsel are permitted to serve
warrants and the statute requires the return to be endorsed with proof of time
and manner of service. However, Tenn. Code Ann. § 16-15-902 requires a
prompt return of service and in subsection (b) requires that “[p]rocess shall
be served within sixty 60 days of issuance.” (emphasis added). If our
Supreme Court wanted service to have a time frame of 90 days it could have
easily done so by using the same language as set forth in 16-15-902. Instead,
Rule 4.01(3) utilizes “prompt” service of process.


                                     -5-
              Unlike Crabtree [v. Lund, No. E2009-01561-COA-R3-CV, 2010 WL
      4272738, at *6 (Tenn. Ct. App. Oct. 28, 2010)], there is no indication in the
      record of any attempt to deliver the summons to the Defendants at any time
      prior to May 1, 2018. There is adequate proof in the record that the Plaintiff
      knew who to serve and where to serve them. The Defendants have
      established the physical location of the office and this Court takes judicial
      notice of the distance between the building where the Clerk’s office is located
      and the physical location of the Registered Agent. The Defendants have
      further established that even if the Plaintiff did not want to hand deliver, as
      they ultimately did, they could have delivered the summons using the mail
      and it would have been delivered long before the date the summons was
      served.

              As stated in Milton v Etezadi, [No. E2012-00777-COA-R3-CV, 2013
      WL 1870052 (Tenn. Ct. App. May 3, 2013)], it is proper for the court to
      consider evidence outside the pleadings when faced with a motion to dismiss
      based on insufficiency of process. While the Plaintiff argues that 90 days is
      timely service as a matter of law, Plaintiff filed no affidavit stating that they
      thought they had 90 days to serve and submitted no evidence that they
      “negligently or even stupidly” failed to timely serve. The argument proposed
      by the plaintiff is that prompt means 90 days and if [it] doesn’t, they are
      protected by the fact that it is impossible to prove intentional delay. If Rule
      4.01 is to have any meaning, prompt must mean prompt and intentional delay
      can be proven based upon a reasonable inference of facts in the record
      without resort to discovery of plaintiff’s counsel.

              As Judge Swiney indicated in Crabtree, there is no requirement in
      Rule 4.01 that the Defendant’s prove that the Plaintiff was attempting to gain
      some type of advantage. The Defendant must prove delay and they must
      prove intent. Without any proof to the contrary, this Court finds that it is
      reasonable to infer that the delay was intentional. Plaintiffs response merely
      states that: “the rule allows 90 days and does not differentiate between day 1
      and day 90.” Prompt is not synonymous with 90 days. The clear language
      of the statute requires prompt service. Based upon these facts, the Defendant
      has met their burden to establish delay and intentional delay.

Concerning the issue of whether Defendants waived the affirmative defense of insufficient
service of process, the Trial Court analyzed relevant case law and concluded:

            Plaintiff argues that the Defendants have waived the affirmative
      defense regarding service of the summons because the Defendants did not


                                            -6-
assert facts to support their defense as required by Rule 8.03 of the Tennessee
Rules of Civil Procedure.

       ***

        In the case at hand, the relevant affirmative defense is asserted in the
answer of the Defendants filed on June 7, 2018 in paragraph 42 of the answer.
“[I]t is denied that Plaintiff properly served defendants in accordance with
Rule 4 of the Tennessee Rules of Civil Procedure.[”] This is not a case in
which the Plaintiff served the wrong person or entity or served someone who
was not an authorized agent. In the case at hand, it is alleged that the Plaintiff
did not serve the summons in compliance with Rule 4. The defense was pled
in the first responsive pleading and then a motion to dismiss was filed within
six months. Rule 8.05 states that every averment in a pleading shall be
simple, concise and direct. If the defense is based upon a statute (or in this
case a rule), the pleading shall either specifically refer to the statute or state
all the facts necessary to constitute the breach so that the other party can be
apprised of the statutory violation. The NHC Defendants did more than plead
insufficiency of service, they pled that they were not properly served in
accordance with Rule 4. Plaintiff’s Motion to Dismiss relies on the language
of Rule 4 and the face of the summons which indicated that the summons
was served by plaintiff’s counsel 89 days after its issuance.

       The Plaintiff filed a Motion to Compel Responses to Interrogatories
and Requests for Production of Documents. The Plaintiff’s motion recites
the fact that the Plaintiff serve[d] the interrogatories on May 1, 2018. The
Certificate of Service verifies that the discovery was served with the
Complaint on May 1, 2018. At that time, it had to be clear to counsel that
the summons had been issued on February 1, 2018 and now 89 days later
they were serving the complaint and discovery. (emphasis added) Plaintiff
attaches the Defendants responses to Request for Admissions to their Motion
to Dismiss or Strike Insufficiency of Service of Process Defense. Request
No. 3 asks the Defendants to [A]dmit you have been properly served with
the Complaint and Summons. Defendants respond by stating “[D]enied”.
Request No. 4 is admitted and the Defendant objects to the remaining five
requests. The Plaintiff then submits a separate single, interrogatory that
directs the defendants, in the event they failed to admit any of the Requests
for Admission, to state every fact upon which you base your denial, identify
all documents that support your denial and the names of all individuals who
have information to support the denial. The Defendants respond with an
Objection. No motion to compel was filed as to these particular discovery
responses.

                                      -7-
               The Court also notes that the Plaintiff did not return the service in this
       case to the Clerk of the Circuit Court until January 4, 2019 at 4:04 pm as
       reflected by the date stamp of the Clerk. Rule 4.03 of the Tennessee Rules
       of Civil Procedure requires the person serving the summons to promptly
       make proof of service to the court. Subsection (3) of Rule 4.03 states that
       failure to promptly file proof of service does not affect the validity of service.
       However, there is nothing in the rule that states that the delay cannot be
       considered as to the issue of waiver. Since the Plaintiff delayed filing the
       return of summons the Defendants did not have access to the actual return of
       service until January 4, 2019.

              Based upon all the foregoing reasons this Court finds that the
       Defendant’s affirmative defense as plead in its answer was properly pled and
       not waived under Rule 8.03 because it relies on Rule 4 and relies exclusively
       on the information contained on the face of the summonses which were
       equally available to the Plaintiff.

Following the Trial Court’s judgment denying Plaintiff’s motion to strike the affirmative
defense and granting Defendants’ motion to dismiss, Plaintiff timely appealed to this Court.

                                         Discussion

       Although not stated exactly as such, Plaintiff raises the following issues for our
review on appeal: (1) whether Defendants waived the affirmative defense of insufficiency
of service of process by failing to state specific facts to support the defense in their answer
pursuant to Tennessee Rule of Civil Procedure 8.03 and (2) whether the Trial Court erred
by granting Defendants’ motion to dismiss the complaint for insufficiency of service of
process upon a finding that Plaintiff intentionally delayed service of process pursuant to
Tennessee Rule of Civil Procedure 4.01(3).

       As this Court has stated:

       Considering an appeal from a trial court’s grant of a motion to dismiss for
       insufficiency of service of process, we view all factual allegations in the
       complaint as true and review the trial court’s conclusions of law de novo with
       no presumption of correctness. Tenn. R. App. P. 13(d); Fisher v. Ankton,
       No. W2016-02089-COA-R3-CV, 2017 WL 3611035, at *3 (Tenn. Ct. App.
       June 27, 2017) (citing Mid–South Indus., Inc. v. Martin Mach. & Tool, Inc.,
       342 S.W.3d 19 (Tenn. Ct. App. 2010)).



                                             -8-
               Motions to dismiss are governed by Rule 12.02 of the Tennessee
       Rules of Civil Procedure and may include motions based upon insufficient
       service of process or failure to state a claim upon which relief may be
       granted. According to Rule 12.02: “If, on a motion asserting the defense
       [of] failure to state a claim upon which relief can be granted, matters outside
       the pleading are presented to and not excluded by the court, the motion shall
       be treated as one for summary judgment[.]” Tenn. R. Civ. P. 12.02.
       However, “even though the trial court consider[s] matters outside the
       pleading, the motion [is] still properly treated as a motion to dismiss since in
       involves [the] issue[ ] of service of process.” Milton v. Etezadi, No. E2012-
       00777-COA-R3-CV, 2013 WL 1870052 (Tenn. Ct. App. May 3, 2013). In
       other words, when ruling on motions to dismiss regarding service of process,
       “a trial court may properly consider matters outside the pleadings without
       converting the motion to one for summary judgment.” Fisher, 2017 WL
       3611035 at *3 (citing Milton, 2013 WL 1970052, at *3-*4).

Davis v. Grange Mut. Cas. Grp., No. M2016-02239-COA-R3-CV, 2017 WL 4331041, at
*2 (Tenn. Ct. App. Sept. 28, 2017). Additionally, our Supreme Court has instructed that
when considering a motion to dismiss, the courts “‘must construe the complaint liberally,
presuming all factual allegations to be true and giving the plaintiff the benefit of all
reasonable inferences.’” Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d
422, 426 (Tenn. 2011) (quoting Tigg v. Pirelli Tire Corp., 232 S.W.3d 28, 31-32 (Tenn.
2007) (other internal citations omitted)). Although Webb involved a motion to dismiss
pursuant to Tennessee Rule of Civil Procedure 12.02(6), the rationale is the same for
motions to dismiss pursuant to subsections (4) and (5). Therefore, if a trial court must
make inferences concerning a motion to dismiss, it must give “the plaintiff the benefit of
all reasonable inferences.” Webb, 346 S.W.3d at 426.

       We first will address whether Defendants waived the affirmative defense of
insufficiency of service of process. According to Plaintiff, Defendants failed to support
the defense in their answer with specific facts in compliance with Tennessee Rule of Civil
Procedure 8.03. In their answer, Defendants pled as follows as an affirmative defense: “In
further affirmative defense, it is denied that Plaintiff properly served Defendants in
accordance with Rule 4 of the Tennessee Rules of Civil Procedure, and for same,
Defendants move that the claims against them be dismissed in accordance with Rule
12.02(4) and (5) of the Tennessee Rules of Civil Procedure.”

       Tennessee Rule of Civil Procedure 8.03 provides that a party shall plead an
affirmative defense by setting forth affirmative facts that are being relied upon in short and
plain terms. “Insufficiency of service of process is an affirmative defense that must be
presented in the defendant’s answer or in a pre-answer motion.” Allgood v. Gateway
Health Sys., 309 S.W.3d 918, 925 (Tenn. Ct. App. 2009). A party’s failure to comply with

                                            -9-
the requirement set forth in Rule 8.03 will result in the waiver of that affirmative defense.
Id.

        In the present case, Plaintiff did not file the returns of the summonses until January
2019, approximately seven months after Defendants filed their answer with the Trial Court.
We note that Defendants cannot be expected to include specific facts, such as service was
completed on the first attempt, supporting their affirmative defense of insufficient service
of process in their answer when those facts were not known to them. See Allgood v.
Gateway Health Sys., 309 S.W.3d 918, 925 (Tenn. Ct. App. 2009) (“[The defendant]
rightly argues that he cannot be expected to include facts in his answer that were unknown
to him.”). Although the Allgood Court determined that the defendant in that case had
waived his affirmative defense when he did not attempt to amend his answer or otherwise
correct misimpressions created in his answer, Defendants in the present case filed a motion
to dismiss setting forth additional facts supporting their affirmative defense approximately
two weeks after the returns of the summonses were filed with the Trial Court. Under the
facts of this case, we find and hold, as did the Trial Court, that Defendants did not waive
the affirmative defense of insufficiency of service of process.

       We next address whether the Trial Court properly granted Defendants’ motion to
dismiss due to insufficient service of process. In their motion to dismiss, Defendants cited
to Tennessee Rules of Civil Procedure 4.01(3) and 12.02(4) and (5). Tennessee Rule of
Civil Procedure 12.02 provides in pertinent part:

        Every defense, in law or fact, to a claim for relief in any pleading, whether a
        claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the
        responsive pleading thereto if one is required, except that the following
        defenses may at the option of the pleader be made by motion in writing: . . .
        (4) insufficiency of process, (5) insufficiency of service of process.

Tennessee Rule of Civil Procedure 4.01(3) provides: “If a plaintiff or counsel for a plaintiff
(including a third-party plaintiff) intentionally causes delay of prompt issuance or prompt
service of a summons, the filing of the complaint (or third-party complaint) will not toll
any applicable statutes of limitation or repose.” The 2016 advisory commission comment
for Rule 4.01 provides that “[t]he underlying rationale for subdivision (3) is that a person
or entity named as a defendant in a complaint is entitled to learn without undue delay that
the person or entity has been sued; although good-faith efforts to serve the defendant can
necessarily take some time, subdivision (3) means that the plaintiff or plaintiff’s counsel
cannot intentionally delay the issuance or service of process for tactical reasons.”1

1
  The Trial Court cited to a dissent in Crabtree v. Lund, No. E2009-01561-COA-R3-CV, 2010 WL
4272738, at *6 (Tenn. Ct. App. Oct. 28, 2010), for the proposition that the movant does not have to prove
a tactical reason for the intentional delay. We note that Crabtree was published in 2010. The subsequent

                                                 - 10 -
       Defendants filed a motion to dismiss alleging that Plaintiff intentionally delayed
service of process in this matter. Defendants attached a copy of the returns for the original
summonses. As the Trial Court noted, service was issued promptly after the complaint was
filed with the Trial Court and the original summonses had been designated as being served
by the attorney, rather than the sheriff’s department. It is undisputed that Plaintiff served
Defendants’ registered agent with process on the eighty-ninth day after issuance of the
summonses.

        Because Defendants’ motion to dismiss relied on Tennessee Rule of Civil Procedure
12.02(4) and (5), the Trial Court considered facts outside the pleadings in making its
decision on the motion to dismiss. See Owens v. Muenzel, No. E2018-00199-COA-R3-
CV, 2018 WL 6721800, at *7 (Tenn. Ct. App. Dec. 21, 2018), perm. app. denied (Apr. 11,
2019) (“When ruling on a motion to dismiss regarding service of process, a trial court may
properly consider matters outside the pleadings without converting the motion to one for
summary judgment.” (internal citation omitted)). Defendants’ registered agent for service
of process appeared on the face of the summonses, and the Trial Court took judicial notice
of the proximity of the registered agent’s office from the courthouse where the summonses
were issued. According to the Trial Court, the location of the registered agent was “less
than one block from the entrance to the courthouse.” Additionally, the Trial Court noted
Defendants’ argument that the summonses could have been served by first-class mail and
took judicial notice of the fact that such delivery “would take significantly less time than
89 days.” Defendants, however, presented no other evidence that Plaintiff had intentionally
delayed service of process. In order for the Trial Court to find that Plaintiff had
intentionally delayed service of process, the Trial Court had to and did make certain
inferences in favor of Defendants.

       Plaintiff did not present evidence concerning the service of process issue and instead
argued that Plaintiff had ninety days to serve the original service of process on Defendants
and that Defendants had not proven an intentional delay. In its judgment, the Trial Court
pointed out Plaintiff’s decision not to file an affidavit or present evidence in support of her
argument. The Trial Court noted that Plaintiff had knowledge of “who to serve and where
to serve them” and that the record lacked any evidence of previous attempts at service made
by Plaintiff prior to May 1, 2018. The Trial Court also found that Plaintiff had not filed an
affidavit to support her argument that she believed, perhaps negligently, she had ninety
days to complete service or presented any evidence to support that Plaintiff had
“negligently or even stupidly” failed to timely serve the Defendants. The Trial Court


2016 advisory commission comment for Tennessee Rule of Civil Procedure 4.01 stated in part that
“subdivision (3) means that the plaintiff or plaintiff’s counsel cannot intentionally delay the issuance or
service of process for tactical reasons.” It is not necessary for us to address in this case whether a tactical
advantage is required pursuant to Rule 4.01(3).

                                                    - 11 -
ultimately granted Defendants’ motion to dismiss upon its conclusion that “Defendants
ha[d] met their burden to establish delay and intentional delay.”

        However, we note that Defendants filed the motion to dismiss and that the burden
was on Defendants to prove that Plaintiff’s delay in completing service of process was
intentional. See Crabtree v. Lund, No. E2009-01561-COA-R3-CV, 2010 WL 4272738, at
*6 (Tenn. Ct. App. Oct. 28, 2010). Additionally, it is not sufficient for Defendants to
demonstrate a delay in serving process, but Defendants must show an “intentional” delay,
pursuant to Tennessee Rule of Civil Procedure 4.01(3). See Crabtree, 2010 WL 4272738,
at *6. “Without the requisite intentional conduct, the delay is immaterial as far as the
effectiveness of the original filing is concerned.” Id. This Court has held that the
Tennessee Rules of Civil Procedure do not permit a plaintiff or his or her attorney to
participate in a “waiting game” regarding service of process, and the attorney’s or the
plaintiff’s intent to withhold service of process is the test under Rule 4.01(3). Jones v. Cox,
316 S.W.3d 616, 621 (Tenn. Ct. App. 2008).

        Defendants rely on the case of Fuller v. Allianz Life Ins. Co. of N. Am., No. E2018-
02267-COA-R3-CV, 2020 WL 830067 (Tenn. Ct. App. Feb. 19, 2020), as being “directly
on point.” The Court in Fuller determined there was “no conflicting evidence on the
dispositive issue” when the plaintiff chose not to present evidence rebutting the defendant’s
allegations of intentional delay. Id. at *9. This Court, therefore, affirmed the grant of
summary judgment in favor of the defendant. Id. However, we note that the Fuller case
is distinguishable because the defendant’s motion in Fuller was treated as a motion for
summary judgment, instead of a motion to dismiss. See id. at *6. The Trial Court in the
present case treated Defendants’ motion as a motion to dismiss under Tennessee Rule of
Civil Procedure 12.02(4) and (5).

       Furthermore, Defendants in the present case did not present an affidavit or other
evidence sufficient to establish that Plaintiff or her attorneys had intentionally delayed
service of process except for the returns of the original summonses that had been personally
served on the eighty-ninth day following their issuance. The face of the summonses does
not provide any evidence that the eighty-nine-day delay in service was intentional. The
Trial Court’s judicial notice of the proximity between the courthouse and Defendants’
registered agent’s office, as well as the Trial Court’s judicial notice that Defendants would
have been served sooner than eighty-nine days with service via U.S. Mail, do not
sufficiently establish that the eighty-nine-day delay was intentional.

       Although the Trial Court faults Plaintiff for not presenting evidence supporting her
arguments, Plaintiff was not obligated to file an affidavit or present other proof that the
eighty-nine-day delay was not intentional when Defendants had not shown an intentional
delay in the first place to support its motion to dismiss. We have been shown nothing that
makes the Trial Court’s inferences in favor of the Defendants any more reasonable than

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inferences that would have been in favor of the Plaintiff. Forcing Plaintiff to present
evidence that a delay was not intentional without first requiring Defendants to present some
actual proof and not just the Trial Court’s inferences and resulting conclusions in favor of
the movants that it was intentional is essentially placing the burden for Defendants’ motion
to dismiss on Plaintiff to establish a lack of intent, which is contrary to prior case law. See
Crabtree, 2010 WL 4272738, at *6. Upon a review of the record, we determine that
Defendants did not meet their burden of proving that the eighty-nine-day delay of service
was intentional. As such, we reverse the Trial Court’s grant of Defendants’ motion to
dismiss.

       The Trial Court disagreed with Plaintiff’s argument that completion of service of
the original summonses within ninety days pursuant to Tennessee Rules of Civil Procedure
3 and 4 is “per se prompt service.” Plaintiff also makes this argument on appeal. It is not
necessary for us to address whether service of the original summonses completed within
ninety days is necessarily timely because Defendants did not meet their burden on their
motion to dismiss of showing an intentional delay in this case.

                                         Conclusion

        The judgment of the Trial Court is affirmed in part and reversed in part, and this
cause is remanded to the Trial Court for further proceedings consistent with this Opinion.
The costs on appeal are assessed against the appellees, NHC Healthcare/Farragut, LLC;
National Healthcare Corporation; National Health Corporation; National Health Realty,
Inc.; and NHC/Delaware, Inc., and their surety, if any.



                                           _________________________________
                                           D. MICHAEL SWINEY, CHIEF JUDGE




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