                  IN THE SUPREME COURT OF TENNESSEE
                             AT KNOXVILLE
                                  January 3, 2013 Session

             CRISTY IRENE FAIR v. STEPHEN LYNN COCHRAN

          Appeal by Permission from the Court of Appeals, Eastern Section
                         Circuit Court for Knox County
                     No. 162409     Dale C. Workman, Judge


               No. E2011-00831-SC-R11-CV - Filed September 12, 2013




J ANICE M. H OLDER, J., concurring.

        I concur in the majority’s conclusion that failure to return proof of service does not
render commencement ineffective to toll the statute of limitations under Rule 3. I write
separately, however, to address the majority’s failure to construe Rule 4.03(1), which states
that a plaintiff “shall promptly make proof of service.” See Tenn. R. Civ. P. 4.03(1) (2012).
Although the majority provides a brief historical perspective of companion Rules 3 and 4.03,
including significant changes in the return of proof of service requirements of both rules, the
majority relies almost entirely on Rule 3 to conclude that Ms. Fair’s failure to promptly return
proof of service did not affect the commencement of her action.

        The majority reasons that because “Rule 4.03(1) does not state that promptly returning
proof of service to the court is necessary to accomplish service,” failure to return proof of
service is immaterial, effectively rendering Rule 4.03(1) meaningless. This conclusion would
be appropriate if the language of Rule 4.03(1) more closely tracked its federal counterpart,
which states that although proof of service is required, “[f]ailure to prove service does not
affect the validity of service.” See Fed. R. Civ. P. 4(l)(3) (2012). Tennessee Rule 4.03(1),
however, lacks such a provision and, in my view, should be analyzed in light of its current
language. Because the majority leaves this issue unresolved, I am unable to concur in the
majority opinion.




                                                   _________________________________
                                                   JANICE M. HOLDER, JUSTICE
