            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT JACKSON

                               JUNE SESSION, 1999
                                                            FILED
                                                            August 10, 1999

                                                         Cecil Crowson, Jr.
                                                        Appellate Court Clerk
STATE OF TENNESSEE,              *
                                 *      No. 02C01-9801-CR-00005
      Appellee,                  *
                                 *      SHELBY COUNTY
vs.                              *
                                 *      Hon. Chris Craft, Judge
GLENN LUCAS,                     *
                                 *      (Motor Vehicle Habitual Offender)
      Appellant.                 *



For the Appellant:                      For the Appellee:

Robert M., Brannon, Jr.                 Paul G. Summers
Attorney                                Attorney General and Reporter
295 Washington Ave., Suite 3
Memphis, TN 38103
                                        Patricia C. Kussmann
                                        Assistant Attorney General
                                        Criminal Justice Division
                                        425 Fifth Avenue North
                                        2d Floor, Cordell Hull Building
                                        Nashville, TN 37243-0493


                                        William L. Gibbons
                                        District Attorney General

                                        Jerry Kitchen and Dan Byer
                                        Asst. District Attorneys General
                                        Criminal Justice Complex
                                        201 Poplar Avenue - Suite 301
                                        Memphis, TN 38103




OPINION FILED:

AFFIRMED



David G. Hayes, Judge
                                        OPINION



        The appellant, Glenn Lucas, appeals the judgment of the Shelby County

Criminal Court declaring him a motor vehicle habitual offender. He challenges his

habitual offender classification upon grounds:

        I. He was denied a hearing on material disputed issues of fact as
        required by Tenn. Code Ann. § 55-10-610; and

        II. Due to insufficient service of process, the court never obtained
        jurisdiction over his person and the State’s petition is barred as the
        statute of limitations for declaring him an habitual traffic offender had
        expired.



        Finding no reversible error of law, we affirm.




                                      Background



        A petition was filed by the State on January 5, 1996, seeking to declare the

appellant a motor vehicle habitual offender pursuant to the Motor Vehicle Habitual

Offenders Act, Tenn. Code Ann. § 55-10-601 et seq. (1993). The petition alleged

that the appellant had been convicted of driving with a canceled, suspended, or

revoked license on three occasions. Specifically, the appellant was arrested on

February 10, 1989, convicted May 10, 1990; arrested on November 10, 1989,

convicted on May 10, 1990; and arrested on April 7, 1995, convicted on June 15,

1995.



        On January 9, 1996, the petition and a show cause order issued by the trial

court ordering the appellant to appear and show cause why he should not be

declared a motor vehicle habitual offender was delivered to the sheriff for service on

the appellant. The process, directed to a specific address, was returned unserved




                                           2
on January 30, 1996, by the Sheriff’s Department.1 On February 5, 1996, a capias

was issued for the appellant’s arrest. The appellant was subsequently arrested on

May 21, 1997, and was released on bond the following day.



       On August 21, 1997, the appellant, through counsel, filed an answer to the

State’s petition. In his answer, the appellant alleged that the enumerated

convictions contained in the State’s petition are void or voidable by reasons of

defects in the proceedings and/or ineffective assistance of counsel; that a

proceeding pursuant to the Motor Vehicle Habitual Offenders Act is unconstitutional;

and the appellant has not been convicted within three years of three qualifying

offenses.



       On the scheduled date of December 11, 1997, the appellant and counsel

appeared before the court. After considering argument of counsel, the answer and

amended answer, and the applicable law, the court, finding no disputed issues of

fact, concluded that no further hearing was warranted and declared the appellant a

motor vehicle habitual offender.




                                    I. Denial of Hearing



       In his first issue, the appellant contends that he was wrongfully and

unconstitutionally denied the right to a hearing based on the court’s misinterpretation

of Tenn. Code Ann. § 55-10-610. Tenn. Code Ann. § 55-10-610 provides

       (a) Upon the first appearance of the defendant before the court, the
       court shall determine whether there is any material disputed, issue of
       fact with regard to the allegations of the petition. If not, the court shall
       forthwith render an order of judgment as may be appropriate without
       the intervention of a jury.



       1
         The unserved process contained the notation, “Zedie Richmond says, Glenn Lucas does
not stay he re.”

                                             3
The appellant maintains that the trial court misinterpreted this provision when it

concluded that the appellant must first prove to the satisfaction of the court that

there existed a material disputed issue of fact before a hearing is required.



       Proceedings under the Motor Vehicle Habitual Offenders Act are civil rather

than criminal in nature. State v. Malady, 952 S.W.2d 440, 443 (Tenn. Crim. App.

1996) (citing Everhart v. State, 563 S.W.2d 795 (Tenn. Crim. App. 1978)). The

appellant asserts that Tenn. Code Ann. § 55-10-610 “serves the same function as a

motion for summary judgment . . . and should be interpreted as such.”



       Tenn. R. Civ. P. 56.03 provides that summary judgment is only appropriate

where (1) there is no genuine issue of material fact relevant to the claim or defense

contained in the motion, Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993); and (2)

the moving party is entitled to a judgment as a matter of law on the undisputed facts.

Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995); Anderson v. Standard Register

Co., 857 S.W.2d 555, 559 (Tenn. 1993). This court has, on prior occasion,

analogized Section 55-10-610 to the procedure for summary judgment, finding that

“[s]ummary judgment is to be rendered by a trial court only when it is shown that

there is no genuine issue regarding any material fact, and that the moving party is

entitled to a judgment as a matter of law.” Malady, 952 S.W.2d at 443 (citations

omitted). The court held that, where the appellant fails to allege any disputed issues

of fact and where the trial court finds that there are no disputed issues of fact, it is

within the authority of the trial court to “render an order or judgment as may be

appropriate without the intervention of a jury.” See Malady, 952 S.W.2d at 443.



       Pursuant to Tenn. Code Ann. § 55-10-603(2)(A),

       a “Habitual offender” is defined as any person who, during a three year
       period, is convicted in a Tennessee court(s) of three or more certain
       enumerated offenses, any person who, during a five year period, is
       convicted in a Tennessee court(s) of three or more certain enumerated
       offenses, or any person who, during a ten-year period, is convicted in
       a Tennessee court(s) of five or more certain enumerated offenses;

                                           4
         provided, that if the five- or ten-year period is used, one of such
         offenses occurred after July 1, 1991.


If a defendant is found to have been validly convicted of the requisite number of

enumerated offenses within the applicable time period, the defendant will be

declared a motor vehicle habitual offender. See State v. James E. Thompson, No.

02C01-9706-CC-00213 (Tenn. Crim. App. at Jackson, June 2, 1998) (citing Tenn.

Code Ann. § 55-10-613(a)). The trial court is granted no discretion. Id.



         The trial court provided the appellant the opportunity to argue and raise any

issue of disputed fact before the court. The appellant conceded that he had three

convictions within a five year period.2 However, he attacked the validity of his 1995

conviction, alleging that his guilty plea to that conviction was not knowingly, freely,

and voluntarily entered. The law is well established that a facially valid judgment of

conviction is not subject to collateral attack in a proceeding under the Motor Vehicle

Habitual Offenders Act. See Everhart v. State, 563 S.W.2d at 795. See also State

v. Ralph D. Cooper, No. 02C01-9709-CR-00339 (Tenn. Crim. App. at Jackson, Jul.

17, 1998); State v. Joseph L. Carter, No. 104 (Tenn. Crim. App. at Jackson, Oct. 26,

1988). Thus, the trial court did not err by prohibiting the appellant from introducing

evidence as to the circumstances surrounding the validity of the 1995 conviction.

Accordingly, there is no disputed issue of fact; the only determination being a

question of law, i.e., whether the appellant had the requisite number of convictions

within the requisite time period.




         2
          Tenn. Code Ann. § 55-10-604(c) addresses the issue of computing the number of
convictions within the applicable time period set forth in Tenn. Code Ann. § 55-10-603(2)(A). The
time be gins runn ing from the date o f the initial convic tion. State v. Tracy C. Thompson, No.
01C0 1-9707 -CR-0 0271 (T enn. Cr im. Ap p. at Nas hville, Apr. 23, 1 998) (citing Tenn . Code A nn. §
55-10-604(d)). If a defendant commits another offense during the applicable period even though
the c onvic tion is not a ctua lly ente red u ntil afte r the tim e per iod ha s ex pired , the c onvic tion is
counte d. Id.; see also State v. Webster , 972 S.W.2d 701, 702-703 (Tenn. Crim. App. 1998). The
appellant’s first conviction was entered on May 10, 1990. His third qualifying offense was
comm itted on April 7, 1995. Accordingly, the appellant’s convictions fall within the applicable five
year period.

                                                       5
         Again, the appellant was provided notice and an opportunity to be heard by

the court at which time he asserted a host of affirmative defenses, including but not

limited to the defense of laches, accord and satisfaction, comparative fault,

estoppel, statute of limitations, principles of equity, and res judicata. The appellant

failed to establish that these defenses presented a genuine issue of material fact.3

Accordingly, “since there was no dispute regarding the facts of this case, the

appellant had no right to trial by jury under the Tennessee Constitution.” See

Malady, 952 S.W.2d at 443.




                       II. Service of Process and Lack of Jurisdiction



         In his final issue, the appellant complains that, because the court never

properly obtained personal jurisdiction over him, the court erred by not dismissing

the State’s petition. Specifically, the appellant contends that the State’s

extraordinary mode of civil service of process, i.e., by means of a capias, was

improper, thereby resulting in a false return which failed to grant the court

jurisdiction over the appellant. The State responds that the appellant has waived

these issues. We agree.



         Rule 12.08 of the Tennessee Rules of Civil Procedure provides:

         A party waives all defenses and objections which the party does not
         present either by motion as hereinabove provided, or, if the party has
         made no motion, in the party’s answer or reply, or any amendments
         thereto, (provided, however, the defenses enumerated in 12.02(2)[lack
         of jurisdiction over the person], (3)[improper venue], (4)[insufficiency of
         process], and (5)[insufficiency of service of process] shall not be raised
         by amendment) . . . .




         3
          We note that no statute of limitations applies to proceedings under the Motor Vehicle
Habitua l Offend ers Ac t, see State v. Roger W. Freeman , 1993 WL 186054 (Tenn. Crim. App. at
Kno xville, J une 1, 19 93), a nd th e san ction of de clarin g an in dividu al to be a hab itual o ffen der is
not a m atter affec ted by princip les of equ ity. See Malady, 952 S.W.2d at 443. Moreover, the
appellant has failed to establish inexcusable delay in the proceedings necessary to trigger the
defens e of lache s. State v. Roger W. Freeman , 1993 W L 1860 54.

                                                      6
(emphasis added). Although the appellant subsequently asserted these defenses

in an amendment of the answer, the affirmative defenses of lack of personal

jurisdiction, insufficiency of process and insufficiency of service of process were not

raised in his initial answer to the State’s petition. The waiver rule is applied strictly to

these defenses. See 3 Tenn. Practice §12.17, 193 (1989 & Supp. 1999). See also

Toler v. City of Cookeville, 952 S.W.2d 831, 835 (Tenn. App.), perm. to appeal

denied, (Tenn. 1997); see, e.g., In re Frumpkin, 912 S.W.2d 138, 140 (Tenn. App.),

perm. to appeal denied, (Tenn. 1995) (“[w]aiver occurs only if there is no objection to

personal jurisdiction in the first filing, either a Rule 12 or an answer”). Thus, the

appellant’s failure to raise these defenses in his initial answer to the court amounts

to waiver of these issues. 4



         After reviewing the record before us and the applicable law, we find no

statutory or constitutional abridgement of the appellant’s rights under the Motor

Vehicle Habitual Offender’s Act. The appellant was provided both notice and an

opportunity to be heard. Accordingly, because there is no factual dispute that the

appellant was convicted of three enumerated offenses within the statutorily defined

         4
           Although we need not reach this issue due to our finding of waiver, we express concern
over the court’s practice of issuing a capias in a civil matter. In State v. Paul T. Brown, Jr., No. 86
(Tenn. Crim. App . at Jackson, Jul. 5, 1989), a panel of this court found that the issuance of a
cap ias to bring the d efen dan t befo re the cour t to an swe r the S tate’s petitio n in a M otor V ehic le
Habitual Offender proceeding was not improper based upon the “catch-all” language of Tenn. R.
Civ. P. 64. Rule 64 preserves the statutory remedies for securing the satisfaction of a judgment
ultimate ly to be obtaine d. See Tenn. R. Civ. P. 64; 4 Tenn. Practice § 64.2, 55 7 (1989 ). A party
may s eek on e of thes e rem edies, i.e., “arrest, attachment, garnishment, replevin . . . and other
corresponding or equivalent remedies,” at the commencement or during the course of an action
when it has become apparent that the property presently in the state may not be available for the
enforcem ent of a judgment. Te nn. R. Civ. P. 64. Rule 64 clearly contemplates statutory
rem edies. T he issua nce of a capias is not statuto rily authorized ex traordina ry civil process .
Indeed , the issua nce of a capias is only authorize d by statute a nd by rule in c riminal m atters. See
Tenn. R. Crim. P. 9; Tenn. Code Ann. § 40-13-301 (1997). Generally, a party to an action must
be brought before the court by service of process, and a judgment pronounced before an
attachment or capias can issue against him. Only where legislatively enacted statutory provisions
explicitly provide for such extraord inary proce ss in civil action s will a capias issue. See, e.g.,
Ten n. Co de A nn. § 36-2 -305 (b)(5 ) (199 8 Su pp.)( pate rnity ac tion m ay be c om me nce d by civ il
summons or, if defendant fails to make appearance or file answer, court may issue warrant for
apprehension of defendant). The Motor Vehicle Habitual Offenders Act does not provide for the
issuanc e of a ca pias, attac hme nt, or warra nt of arres t in lieu of civil proce ss. See Tenn. Code
Ann. § 55-10-608(a) (upon filing of petition, court shall make order directing defendant to appear
before court to sh ow cau se why de fendan t should n ot be bar red from operating a mo tor vehicle . .
.”). Alth oug h this cour t doe s not find th e issu anc e of a capia s in th e inst ant c ase unco nstitu tiona l,
we acknow ledge that the issuance of a capias which resu lts in the seizure and custody of a
person in a civil ma tter raises c ertain due proces s conc erns un der both the Fou rteenth
Amendment to the United States Constitution and Article I, Section 8 of the Tennessee
Constitution and any such practice where not authorized should be discontinued.

                                                        7
period, we affirm the trial court’s order declaring the appellant a motor vehicle

habitual offender.




                                   ____________________________________
                                   DAVID G. HAYES, Judge



CONCUR:



_____________________________________
DAVID H. WELLES, Judge



_____________________________________
NORMA MCGEE OGLE, Judge




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