                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                  March 5, 2013 Session

                  WILL J. MILTON v. SAEED ETEZADI, M.D.

                    Appeal from the Circuit Court for Knox County
                      No. 3-92-07    Wheeler Rosenbalm, Judge




                 No. E2012-00777-COA-R3-CV-FILED-MAY 3, 2013


This case presents the issue of whether proper service of process was accomplished regarding
the defendant, Saeed Etezadi, M.D. Plaintiff, Will J. Milton, filed a medical malpractice
action against Dr. Etezadi on April 14, 2003. The complaint and summons were served upon
Dr. Etezadi’s office manager, with a notation appearing on the summons that service was
accepted as “agent.” Dr. Etezadi filed an answer which, inter alia, raised the affirmative
defense of insufficiency of service of process. Mr. Milton voluntarily dismissed that action
and subsequently re-filed within one year of the non-suit. In connection with the second
action, the complaint and summons were allegedly served upon Dr. Etezadi at his office. Dr.
Etezadi filed an Answer, again raising the affirmative defense of insufficiency of service of
process. Dr. Etezadi also asserted that all applicable statutes of limitation and repose had
expired. He later filed a motion to dismiss. Following the hearing, the trial court dismissed
the claims against Dr. Etezadi, finding that there was no service of process in either action.
Mr. Milton appeals. We affirm.

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

T HOMAS R. F RIERSON, II, J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., P.J., and J OHN W. M CC LARTY, J., joined.

Ronald L. Grimm and William W. McGowan, III, Knoxville, Tennessee, for the appellant,
Will J. Milton.

Wynne du M. Caffey, Knoxville, Tennessee, for the appellee, Saeed Etezadi, M.D.
                                          OPINION

                           I. Factual and Procedural Background

        The original action filed by Mr. Milton alleged that Dr. Etezadi negligently treated Mr.
Milton’s gastroesophageal reflux and that he deviated from the appropriate standard of care.
The process server’s return reflected that the summons was served upon and “accepted by
Cheryle Kate as agent for” Dr. Etezadi. In his answer, Dr. Etezadi stated that he “specifically
pleads the defense of improper or lack of service of process, and by filing this Answer does
not waive the same.” Dr. Etezadi did not, however, state any factual basis for this affirmative
defense. Mr. Milton later filed a notice of voluntary dismissal, and the trial court dismissed
his claims without prejudice.

        Mr. Milton re-filed his lawsuit approximately eight months later. The process server’s
return, bearing the date March 14, 2007, provided as follows:

       [x] served this Summons and Complaint on the defendant(s) in the following
       manner: at office 2:27 p.m.

The return is signed by the process server and contains an identifying number.

        Dr. Etezadi filed an answer and raised several affirmative defenses, including
expiration of the statutes of limitation and repose, insufficiency of process, insufficiency of
service of process, and lack of personal jurisdiction. Through his answer, Dr. Etezadi
expressly stated that he “was not personally served.” The lawsuit languished for over three
years, with Dr. Etezadi eventually filing a motion to dismiss for failure to prosecute. A
companion motion to dismiss for insufficiency of process and service, as well as expiration
of the statutes of limitation and repose, was also filed.

       The trial court conducted a hearing on the motions on March 2, 2012, concluding that
Dr. Etezadi’s motion regarding insufficiency of service of process should be granted. In
dismissing Mr. Milton’s action, the court found as follows:

       Upon the oral argument of counsel for the parties, the record as a whole and
       for good cause shown, the Court finds that there was no service of process on
       Dr. Etezadi and no service of process on any appointed agent for Dr. Etezadi
       in the original action, Docket No. 1-233-03, or in the present action, Docket
       No. 3-92-07. Accordingly, the Motion to Dismiss for Insufficiency of Process,
       Insufficiency of Service of Process and Lack of Personal Jurisdiction in both
       instances is GRANTED. It is further ORDERED, ADJUDGED AND

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       DECREED that this action is dismissed with prejudice and the costs of this
       action are taxed to the Plaintiff . . . .

Mr. Milton timely appealed.

                                      II. Issues Presented

       Mr. Milton presents two issues for our review, which we have restated as follows:

       1.     Whether Dr. Etezadi waived the affirmative defense of insufficiency of
              service of process in the original action by failing to plead the factual
              basis for the defense pursuant to Rule 8.03 of the Tennessee Rules of
              Civil Procedure.

       2.     Whether in the second action the trial court erred in finding Dr.
              Etezadi’s testimony sufficient to overcome the presumption of proper
              service based on the process server’s return and therefore erred in
              finding Dr. Etezadi was not properly served.

                                   III. Standard of Review

        The trial court dismissed Mr. Milton’s action based upon Dr. Etezadi’s motion to
dismiss for insufficiency of process, insufficiency of service of process, and lack of personal
jurisdiction. Such a motion is presented pursuant to Rule 12.02 of the Tennessee Rules of
Civil Procedure, subsections (2), (4), and (5). See McNeary v. Baptist Mem’l Hosp., 360
S.W.3d 429, 436 (Tenn. Ct. App. 2011).

       It is well settled that a motion to dismiss pursuant to Rule 12.02

       tests only the legal sufficiency of the complaint, not the strength of a plaintiff’s
       proof. Such a motion admits the truth of all relevant and material averments
       contained in the complaint, but asserts that such facts do not constitute a cause
       of action. In considering a motion to dismiss, courts should construe the
       complaint liberally in favor of the plaintiff, taking all allegations of fact as
       true, and deny the motion unless it appears that the plaintiff can prove no set
       of facts in support of her claim that would entitle her to relief. In considering
       this appeal from the trial court’s grant of the defendant’s motion to dismiss, we
       take all allegations of fact in the plaintiff’s complaint as true, and review the
       lower courts’ legal conclusions de novo with no presumption of correctness.



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Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997) (internal citations omitted);
see also McNeary, 360 S.W.3d at 436; Faulks v. Crowder, 99 S.W.3d 116, 125 (Tenn. Ct.
App. 2003).

       In McNeary, the defendant’s motion to dismiss asserted a lack of proper service of
process and personal jurisdiction. Id. In ruling on the motion, the trial court considered
matters outside the pleadings. Id. On appeal, this Court stated:

       Before reaching the issues, we first note that this case was decided as a
       Tennessee Rule of Civil Procedure 12 motion to dismiss; however, as
       discussed above, the trial court obviously considered matters outside the
       pleadings. Tennessee Rule of Civil Procedure 12.03 provides that: “[i]f, on a
       motion [to dismiss], matters outside the pleadings are presented to and not
       excluded by the court, the motion shall be treated as one for summary
       judgment and disposed of as provided in Rule 56, and all parties shall be given
       reasonable opportunity to present all material made pertinent to such a motion
       by Rule 56.” However, the Tennessee Supreme Court has previously held that
       this general rule is inapplicable when the motion is one involving jurisdictional
       issues. See Nicholstone Book Bindery, Inc. v. Chelsea House Publishers, 621
       S.W.2d 560, 561 n. 1 (Tenn.1981) (finding that the trial court committed
       harmless error in treating the defendant’s motion to dismiss for lack of
       personal jurisdiction as one for summary judgment). Although neither party
       raises this as an issue, under the Nicholstone holding, the trial court correctly
       treated this as a motion to dismiss.

Id. Similarly, in the case at bar, even though the trial court considered matters outside the
pleadings, the motion was still properly treated as a motion to dismiss since it involves issues
of service of process and jurisdiction.

                                         IV. Waiver

       Mr. Milton argues that Dr. Etezadi waived the affirmative defense of insufficiency of
service of process by failing to properly set forth the facts upon which he relied when
asserting this defense in the original action. In support of his argument, Mr. Milton relies
upon Tennessee Rule of Civil Procedure 8.03.

       Rule 8.03 governs affirmative defenses and provides:

       In pleading to a preceding pleading, a party shall set forth affirmatively facts
       in short and plain terms relied upon to constitute accord and satisfaction,

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       arbitration and award, express assumption of risk, comparative fault (including
       the identity or description of any other alleged tortfeasors), discharge in
       bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, laches,
       license, payment, release, res judicata, statute of frauds, statute of limitations,
       statute of repose, waiver, workers’ compensation immunity, and any other
       matter constituting an affirmative defense.

The courts of this state have held that Rule 8.03 applies to the defense of insufficiency of
service of process. See Barker v. Heekin Can Co., 804 S.W.2d 442, 444 (Tenn. 1991);
Faulks, 99 S.W.3d at 125. According to this Court’s opinion in Faulks:

       As a general rule, defects in process, service of process, and return of service
       may be waived. The Tennessee Rules of Civil Procedure expressly state that
       where the issue is not raised properly, the defendant waives the objection. The
       failure of a defendant to challenge insufficiency of process in accordance with
       Rule 8.03 will constitute a waiver of the matter raised in a motion.

Faulks, 99 S.W.3d at 125.

       Dr. Etezadi contends that he did not waive the defense of insufficiency of service of
process because he pled it in his original answer by stating, “Dr. Etezadi specifically pleads
the defense of improper or lack of service of process, and by filing this Answer does not
waive the same.” We disagree. Dr. Etezadi did not state any factual basis for the defense.
Both the Tennessee Supreme Court and this Court have consistently held that in order to
preserve this affirmative defense, the defendant must set forth the facts forming the basis for
same. See Hall v. Haynes, 319 S.W.3d 564, 584-585 (Tenn. 2010); Barker, 804 S.W.2d at
444; Allgood v. Gateway Health Sys., 309 S.W.3d 918, 925 (Tenn. Ct. App. 2010); Eaton v.
Portera, W2007-02720-COA-R3-CV, 2008 WL 4963512 at *3 (Tenn. Ct. App. Nov. 21,
2008). In order to properly preserve this defense, Dr. Etezadi should have stated the
underlying factual basis, i.e., that Ms. Kate was not his authorized agent and that he was not
personally served as required by Rule 4 of the Tennessee Rules of Civil Procedure. This
determination, however, does not conclude our review of the issue.

        Dr. Etezadi further posits that Mr. Milton did not properly raise the issue of waiver
in the trial court and therefore cannot raise it for the first time on appeal. We agree. As this
Court has often stated, issues are considered waived on appeal by the failure to present them
at the trial court level. Hall, 319 S.W.3d at 584; see also Novack v. Fowler, W2011-01371-
COA-R9-CV, 2012 WL 403881 (Tenn. Ct. App. Feb. 9, 2012). In Novack, the plaintiff
raised the issue on appeal of whether the defendant had waived the affirmative defense of
insufficient service of process by failing to set forth a short and plain factual statement as a

                                               -5-
basis for the defense. Novack, 2012 WL 403881 at *5. This Court reviewed the record and
determined that the plaintiff had not raised this issue at the trial court level, either in her
response in opposition to the motion for summary judgment or at the summary judgment
hearing. Id. Consequently, this Court ruled that the plaintiff’s argument (that defendant had
waived the defense of insufficient service of process) was waived by her failure to raise it
in the trial court. Id.

       In the present case, Mr. Milton filed a response in opposition to Dr. Etezadi’s motion
to dismiss without specific reference to or reliance upon the doctrine of waiver or Rule 8.
Similarly, at the motion hearing, Mr. Milton’s counsel argued that the service of process on
Dr. Etezadi was proper without presenting any argument with regard to Rule 8 or Dr.
Etezadi’s failure to state the factual basis for the defense of insufficiency of service of
process. Mr. Milton’s counsel did make a vague reference to waiver in general during the
motion hearing, when the following colloquy occurred:

The Court:      You’re saying the defendant waived the right to rely upon this?
Counsel:        Yes, sir.
The Court:      By doing what?
Counsel:        By going ahead and defending the case, taking depositions and
                not raising the issue when the first case was non-suited. They
                didn’t raise the issue before that non-suit.
The Court:      They put it in the answer to the first case, did they not?
Counsel:        I’m not arguing. It’s there, there is no question about that.

Mr. Milton’s counsel was not relying on Rule 8 or Dr. Etezadi’s failure to state the factual
basis for the defense of insufficient service, as he indicated that the defense had been raised
in the first answer. The trial court proceeded with the hearing on the question of sufficiency
of service of process. The record supports our determination that Mr. Milton did not properly
raise the Rule 8 waiver issue at the trial court level. We therefore conclude that Mr. Milton
has waived this issue on appeal. See Dye v. Witco Corp., 216 S.W.3d 317, 321 (Tenn. 2007).

                              V. Insufficiency of Service of Process

        The controlling question on appeal therefore becomes whether the service of process
in the original action was proper. This issue is determinative because if service of process
in the original action was insufficient, the second action is barred by the one-year statute of
limitations, which had expired1 before the second action was filed.


       1
           The original action was filed in April 2003, alleging that the claims arose from Mr. Milton’s
                                                                                            (continued...)

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        Rule 3 of the Tennessee Rules of Civil Procedure provides:

        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 issuance of the previous process or, if no process is issued, within one
        year of the filing of the complaint.

As our Supreme Court has explained in Hall:

        Here, Plaintiff obtained timely issuance of process in conjunction with both the
        original and amended complaints. For the reasons stated supra, however,
        process was not effectively served on either complaint within the ninety-day
        window. Because Plaintiff did not obtain issuance of new process within one
        year of the issuance of the previous process, Plaintiff cannot rely on the filing
        of the original lawsuit to toll the statute of limitations.

319 S.W.3d at 585. In this case, if Mr. Milton did not accomplish proper service of process
upon Dr. Etezadi within 90 days of issuance of the original process, he cannot rely on the
filing of the first action to toll the running of the statute of limitations unless he obtained
issuance of new process within one year from issuance of the previous process. Likewise,
the saving statute2 would not apply to allow filing of the second action because the first
action was untimely. The second action would also be barred by the applicable statute of
repose.3



        1
           (...continued)
diagnosis in May 2002. The second action was filed on February 27, 2007, after Mr. Milton non-suited the
first action in 2006.
        2
             Tennessee Code Annotated § 28-1-105 is commonly known as the saving statute and provides:
“If the action is commenced within the time limited by a rule or statute of limitation, but the judgment or
decree is rendered against the plaintiff upon any ground not concluding the plaintiff’s right of action, or
where the judgment or decree is rendered in favor of the plaintiff, and is arrested, or reversed on appeal, the
plaintiff, or the plaintiff's representatives and privies, as the case may be, may, from time to time, commence
a new action within one (1) year after the reversal or arrest.”
        3
          “In no event shall any such action be brought more than three (3) years after the date on which the
negligent act or omission occurred except where there is fraudulent concealment on the part of the defendant,
in which case the action shall be commenced within one (1) year after discovery that the cause of action
exists.” Tenn. Code Ann. § 29-26-116(a)(3).

                                                     -7-
       The undisputed facts establish that service of process in the original action was not
made on Dr. Etezadi personally, but rather was accomplished upon his office manager,
Cheryle Kate. The process server noted on the return that service of process was made upon
and “accepted by Cheryle Kate as agent for” Dr. Etezadi. Dr. Etezadi testified by deposition,
however, that he never appointed Cheryle Kate as his agent for service of process and never
authorized her to accept service on his behalf.

       Dr. Etezadi posits that Rule 4 of the Tennessee Rules of Civil Procedure requires
personal service, which he asserts was never accomplished in this case. Pursuant to Rule
4.04, service upon a defendant within the state shall be made as follows:

       Upon an individual other than an unmarried infant or an incompetent person,
       by delivering a copy of the summons and of the complaint to the individual
       personally, or if he or she evades or attempts to evade service, by leaving
       copies thereof at the individual’s dwelling house or usual place of abode with
       some person of suitable age and discretion then residing therein, whose name
       shall appear on the proof of service, or by delivering the copies to an agent
       authorized by appointment or by law to receive service on behalf of the
       individual served.

       The process server from the original action filed an affidavit stating that it was her
“practice” upon receiving a summons to be served to contact the defendant before attempting
service of process. The affiant further indicated that if the defendant was unavailable to
accept service personally, she would request the defendant appoint someone to accept service
on his or her behalf. Notably, the process server did not set forth any factual allegations
specific to this case. She simply testified as to what had been her general “practice” in the
past. Dr. Etezadi categorically denied that anyone contacted him about service of process or
that he had appointed anyone to accept service on his behalf. There was no proof in the
record from Ms. Kate. Dr. Etezadi’s assertion that he never authorized Ms. Kate to accept
service of process on his behalf is thus undisputed.

       Our Supreme Court has expressly held that personal service of process is the preferred
method of service upon an individual defendant pursuant to Rule 4. Hall, 319 S.W.3d at 572.
Service may also be had upon “an agent authorized by appointment or by law to receive
service on behalf of” the defendant. Id. The Court made clear that “[i]n the workplace
context, service is not effective when another employee whom the individual defendant has
not appointed as an agent for service of process nonetheless accepts process on the
defendant’s behalf.” Id. Rather, an authorized agent must either have express authority from
the defendant to accept service on his behalf or implied authority stemming from “some act
or acquiescence of the principal.” Id. at 573. The record must contain “evidence that the

                                             -8-
defendant intended to confer upon [the] agent the specific authority to receive and accept
service of process for the defendant.” Id. (citing Arthur v. Litton Loan Servicing LP, 249 F.
Supp. 2d 924, 929 (E.D. Tenn. 2002)). See also Eaton v. Portera, 2008 WL 4963512 at
*3(service on physician’s assistant was insufficient where plaintiff did not show that assistant
was authorized agent for physician).

        Mr. Milton provided no proof that Ms. Kate was Dr. Etezadi’s authorized agent for
receipt of service of process. Mr. Milton has the burden of proof on this issue. See Eaton,
2008 WL 4963512 at *4. There is no evidence in the record that Dr. Etezadi intended to
confer upon Ms. Kate the specific authority to receive and accept service of process on his
behalf. Hall, 319 S.W.3d at 573. We determine that service of process upon Ms. Kate as Dr.
Etezadi’s “agent” was therefore ineffective. The trial court properly ruled that there was no
service of process on Dr. Etezadi in the original action. Id. at 574. Because there was
insufficient service of process in the original action, Mr. Milton cannot rely on the filing of
that action to toll the one-year statute of limitations or upon the provisions of the saving
statute. Id. at 585. We conclude that the trial court properly dismissed Mr. Milton’s claims.
By reason of this determination, our review of Mr. Milton’s second issue presented on appeal
is pretermitted.

                                       VI. Conclusion

       The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellant,
Will J. Milton. This case is remanded to the trial court, pursuant to applicable law, for
enforcement of the trial court’s judgment and the collection of costs assessed below.




                                                    _________________________________
                                                    THOMAS R. FRIERSON, II, JUDGE




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