                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                     March 7, 2001 Session

                   NORMA TILLMAN v. LEO P. HAFFEY, ET AL.

                A Direct Appeal from the Circuit Court for Davidson County
                No. 00C-246    The Honorable Frank G. Clement, Jr., Judge



                      No. M2000-02196-COA-R3-CV - Filed May 15, 2001


Plaintiff filed a complaint on August 30, 1999 alleging a cause of action for malicious prosecution
and abuse of process arising out of a suit filed against her by defendants. Plaintiff’s cause of action
accrued when the defendants, as the plaintiffs in the underlying case, voluntarily dismissed their case
on September 14, 1998. When plaintiff filed the complaint, summons was issued by the court clerk,
but was retained by plaintiff’s counsel and returned unserved. An alias summons was issued on
November 1, 1999, and defendants were served November 5, 1999. Defendants filed a motion to
dismiss, which was granted by the trial court on the ground that the case was barred by the statute
of limitations reasoning that the filing of the suit and retaining the process did not toll the running
of the statute of limitations. Plaintiff has appealed. We vacate and remand.

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

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER ,
J. and DON R. ASH , J., joined.

Kenneth R. Jones, Jr.; William D. Martin, Nashville, For Appellant, Norma Tillman

Leo P. Haffey, Pro Se, Nashville

                                             OPINION

        This case addresses the narrow issue of whether, under the Tennessee Rules of Civil
Procedure, a plaintiff may intentionally delay service of process upon a defendant in order to ensure
that the defendant’s time to refile a previously non-suited action had expired.

       This action for malicious prosecution and abuse of process arises out of a civil action in
which Appellees, Leo and Robin Haffey, sued Appellant, Norma Tillman, for breach of contract and
unjust enrichment, among other things.1 Ms. Tillman, a private investigator and author, retained Mr.
Haffey to locate publishers for works of fiction Ms. Tillman intended to write. Although we need
not address the exact nature of all the claims the Haffey’s made against Ms. Tillman for the purposes
of this appeal, suffice it to say that the allegations were extraordinary and numerous. For example,
the Haffeys alleged, inter alia, that Ms. Tillman stalked and threatened them, shot or killed their
dogs, vandalized their automobiles, and burglarized their home.2

       The trial court in the underlying case granted Ms. Tillman’s motion to dismiss as to the
invasion of privacy claim, and later granted partial summary judgment as to the breach of contract
and unjust enrichment claims. The Haffeys voluntarily nonsuited the remaining claims in the case
on September 14, 1998.

        On August 30, 1999, Ms. Tillman filed the Complaint in this action. It is undisputed that Ms.
Tillman and her counsel delayed service of process until after September 15, 1999, the date after
which the Haffeys could no longer refile the dismissed claims. In fact, the initial summonses in this
matter remained unserved at the expiration of the 30-day period for which they were valid, and Ms.
Tillman and her attorney had alias summonses issued on November 1, 1999 which were ultimately
served on November 5, 1999.

       After a hearing on the Haffeys’ Tenn. R. Civ. P. 12.02 motion to dismiss, the trial court found
that Ms. Tillman and her attorney had improperly withheld service of process and dismissed Ms.
Tillman’s claims as barred by the statute of limitations. The trial court’s Memorandum Opinion and
Order filed July 28, 2000, provides, in relevant part:

                             Plaintiff argues that the amendments to Rule 3 making the
                     filing of a complaint immune to challenge regardless of the reason
                     summons was not served, even if it is the intentional interference by
                     the plaintiff or its agents. This court respectfully and emphatically
                     disagrees. Neither the amendment, the advisory commission
                     comments, nor the cases decided before or after the pertinent
                     amendments open the door for a plaintiff to intentionally interfere
                     with service of process after the complaint is filed with the clerk.
                     Plaintiff views the phrase regardless of the reason as a license to
                     intentionally interfere with, indeed prevent, service of process. Such
                     conduct is not permitted by the rules, nor should it be permitted.
                     Though the plaintiff believes the court has rewritten the rule, it is the
                     plaintiff who seeks to rewrite the rule to permit a plaintiff to


         1
          The original action also alleged unjust enrichment, interference with a contractual relationship between Mr.
Haffey and anoth er client, trespas s, invasion of p rivacy, outrag eous con duct, and inte ntional infliction of emotional
distress.

         2
             The record does not indicate if the Haffeys filed any criminal charges against Ms. Tillman.

                                                           -2-
intentionally interfere with and intentionally preclude service of
process for any reason.

         In pertinent part Rule 3, now reads: “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.” However, the plaintiff
wishes to read this sentence in conjunction with the second sentence
of the rule, which includes the phrase regardless of the reason
process is not served, to permit intentional acts by a plaintiff to
prevent service after the complaint and/or summons are filed. The
plaintiff is simply incorrect in the strained interpretation of the
amended rule or the reasons for its amendment. Review of the earlier
rule, the amendments, and the advisory commission comments reveal
common sense reasons for the amendments to the rule and none of
them authorize nor justify intentional interference with service of
process by a plaintiff.

        The changes to Rule 3 were made, in part, because of
problems with the “forthwith” provision and other affirmative
burdens on the plaintiff or the attorney. The burdens included
ensuring that summons was “issued” by the Clerk and thereafter that
summons was placed in the hands of the proper person for service.
Further changes were necessary due to conflicts between Rule 3,
which previously required summons, while certain causes of action
did not require summons. Changes were also necessary for sheriffs
and process servers were not “returning” the summons to the clerk,
served or unserved. Each of these problems was resolved with
common sense modifications endeavoring to avoid adverse
consequences to a reasonably diligent plaintiff, or their counsel, when
someone other than the plaintiff, (i.e., the clerk or sheriff or process
server) failed to follow through with their duties. None of these
amendments open the door, however, for intentional interference by
a plaintiff nor should courts of Tennessee permit such.

        Moreover, Rule 4.01, both then and now, requires the clerk to
issue a summons “forthwith” once a complaint is filed. It further
provides that the clerk shall “cause it (the summons), . . . to be
delivered for service to any person authorized to serve process.”
Moreover, Rule 4.01 provides that “This person shall serve the
summons, . . . “ (emphasis added). Rule 4.01 does not provide an
exception for a plaintiff who does not wish for the summons to be
served. Furthermore, advisory commission comments to the


                                  -3-
amendment provide: “In any event, good practice mandates following
up to ensure that a summons is promptly issued and served.” In that
the Advisory Commission affirmatively recognizes the need for a
lawyer to follow up to ensure that a summons is promptly issued and
served, it is more than evident that the Advisory Commission would
not condone intentional interference by a plaintiff to prevent that
which the commission says is mandated by good practice.

                             *      *      *

        This court further opined that under Tennessee law, process
cannot be held in abeyance as a means of defeating the running of the
statute of limitations. West v. Cincinnati, N.O. & T.P. Ry. Co., 108
F. Supp. 276 (1953). The federal rules respecting the commencement
of an action and process contemplate the issuance of a summons and
the placing of summons in proper channels for service in order to toll
the statute of limitations. Fed. Rules Civ. Proc. Rules 3, 4(a), 28
U.S.C.A. Hixon v. Highsmith, 147 F. Supp. 801 (1957). Mere
preparation of summons with direction to hold it until further
instructions is not “suing out of the summons” and delivery of the
papers to the proper office for service on defendant is necessary.
Robertson v. Giant Food Market, Inc., 358 S.W.2d, 210 Tenn. 356
(1962). Withholding of a summons to prevent service defeats the
tolling of the statute of limitation. (“Action of plaintiffs’ attorney in
causing clerk to place summons in safe until further instructions, . .
. was not commencement of action within limitation statute, and
action was barred.”) Robertson, supra. In Tennessee, our Supreme
Court has held:

        It is essential that the process shall be issued with the
        bona fide intention that it shall seasonably and in due
        course be served, and if it is issued provisionally, as
        here it is not to be served until further instructions, or
        until a certain time or event, action will not be
        considered as “commenced” until the date or
        contingency specified.

Ridgway Sprandle Co. v. Carter, 143 S.W.2d 527, 176 Tenn. 442
(1940).

        Based on the foregoing, and this court’s analysis of the
authorities cited in its prior opinion in this case, the Court concluded
that a plaintiff may not wilfully impede service of process on a


                                   -4-
                   defendant after the complaint is filed anymore than a defendant may
                   wilfully evade service of process.

(footnotes omitted) (emphasis in original).

       Ms. Tillman appeals, and presents the following issue for review:

                   When process is issued and returned within the deadlines set by Rule
                   3, Tennessee Rules of Civil Procedure, does a plaintiff’s intentional
                   delaying serving process until after the expiration of the time within
                   which the defendants could refile previously nonsuited claims nullify
                   Rule 3's provision that an action is commenced upon filing of a
                   complaint for statute of limitations purposes?

For the reasons below, we reverse the trial court and hold that the provisions of Rule 3 regarding
when an action is commenced do not change because a party intentionally delays service of process.

       Rule 3 of the Tennessee Rules of Civil Procedure, as amended in 1997, provides:

                           All 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. If process remains unissued for 30 days or is not
                   served within 30 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.

Tenn. R. Civ. P. 3 (West 2000) (emphasis added). Prior to the 1997 amendment, Rule 3 provided
that, “All civil actions are commenced by filing a complaint and summons with the clerk of the
court.” (emphasis added). The Advisory Commission Comment to the 1997 Amendment notes that,
although Rule 4.02 still “requires the clerk to issue a summons ‘forthwith’ once a complaint is filed,”
“‘[c]ommencement’ for statute of limitations purposes would occur on the day the complaint is
filed.” The Commission Comment to the 1997 Amendment also indicates that deleting the summons
requirement brings Tennessee’s Rule 3 in line with Rule 3 of the Federal Rules of Civil Procedure.3
        We believe the plain language of Rule 3 regarding unissued or unserved process militates in
favor of Appellant. The Rule provides that, regardless of the reason, if process remains unissued or
unserved after 30 days, or if no process is issued at all, the plaintiff has one year in which to issue


       3
           Rule 3 provides, “A civil action is commenced by filing a complaint with the court.” F.R.C.P. 3 (West 2000).

                                                          -5-
or reissue process and toll the statute of limitations. In the case at bar, the summonses were not
served within the initial 30-day period, but Appellant obtained and served new summonses well
within the one-year limit.

        Appellees argue that Rule 4.01, which requires the clerk to issue a summons “forthwith” and
provides that “This person shall serve the summons. . .” supports the position that the Tennessee
Rules of Civil Procedure prohibit intentional withholding of service of process. Essentially,
Appellees argue that plaintiffs must see that a summons is issued and served contemporaneously
with the filing of the complaint. However, in Hine v. Commercial Carriers, Inc., 802 S.W.2d 218,
219 (Tenn. 1990), our Supreme Court rejected the argument that Rule 4.01 mandates that the
summons be issued at the same time the complaint is filed.4

                  . . . Rule 3 clearly states that “[a]n action is commenced within the
                  meaning of any statute of limitations upon such filing of a complaint,
                  whether process be returned served or unserved.” (emphasis added).
                  If the drafters of the rule intended a complaint and summons to
                  commence an action for statute of limitations purposes, the rule could
                  have easily been drafted to so indicate. As it is, however, Rule 3
                  speaks in terms of a complaint and the statute of limitations,
                  regardless of process. It adds no other requirement for commencing
                  an action. Rule 4.01, dealing with the issuance of a summons, says
                  nothing about the statute of limitations.

Id. (alteration and emphasis in original). The Hine Court goes on to construe the term “forthwith”
as meaning “within a reasonable time after the complaint is filed.” Id. at 220. Furthermore, all of
Appellees’ proffered cases were decided before the legislature amended Rule 3 in 1997, which
deleted the “and summons” requirement for commencement of action.

        Tenn.R.Civ.P. 3 clearly and unambiguously states that the filing of a complaint is the
commencement of the action. The courts have no authority to disregard the plain and express terms
of a statute or rule unless the particular provision has been declared unconstitutional. Plaintiff’s
claim is not barred by the statute of limitations.

       Accordingly, the order of the trial court dismissing plaintiff’s complaint is vacated. The case
is remanded for such further proceedings as may be necessary. Costs of the appeal are assessed to
Appellees, Leo and Robin Haffey.

                                               __________________________________________
                                               W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.


         4
           Hine interpreted the pre-19 92 versio n of Rule 3 which, although no t identical to the c urrent Rule, is
substantially similar vis-a-vis the language addressing when an action is commen ced for pu rposes of to lling the statute
of limitations.

                                                           -6-
