                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                    April 18, 2007 Session

                        DORIS JONES AND BILLY J. JONES
                                      v.
                            SUSANNAH P. JOHNSON

                    An Appeal from the Circuit Court for Madison County
                          No. C-04-358     Roger A. Page, Judge



                     No. W2006-01859-COA-R3-CV - Filed July 16, 2007


This is a personal injury case involving the Tennessee suspension statute. On August 27, 2003, the
defendant rear-ended the plaintiff’s vehicle. On August 23, 2004, the plaintiffs filed a lawsuit
against the defendant for damages arising out of the accident. On the same date, a summons was
issued to the defendant at her last known address in Tennessee. A few days later, the summons was
returned with a notation indicating that the defendant had moved to Georgia. The plaintiffs failed
to renew process within one year of the original date of service. Finally, in March 2006, an alias
summons was issued and served on the defendant in Georgia. The defendant filed a motion for
summary judgment based on the one-year statute of limitations. The trial court granted the
defendant’s motion. The plaintiffs now appeal, arguing that the statute of limitations was tolled
pursuant to the suspension statute, T.C.A. § 28-1-111, because the defendant lived in another state
when suit was filed. We affirm, concluding that the suspension statute is inapplicable in this case.

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

HOLLY M. KIRBY , J., delivered the opinion of the Court, in which W. FRANK CRAWFORD , P.J., W.S.,
and ALAN E. HIGHERS, J., joined.

Donald A. Donati and William B. Ryan, Memphis, Tennessee, for the appellants, Doris Jones and
Billy J. Jones.

Deana C. Seymour and Todd D. Siroky, Jackson, Tennessee, for the appellee, Susannah P. Johnson.

Wesley A. Clayton and William B. Palmertree, Jackson, Tennessee, for the unnamed
defendant/appellee, Tennessee Farmers Mutual Insurance Company.
                                                      OPINION

        On August 27, 2003, the vehicle driven by Defendant/Appellee Susannah Johnson
(“Johnson”) rear-ended the vehicle driven by Plaintiff/Appellant Doris Jones (“Jones”), causing
Jones personal injury and damages. At the time of the accident, Johnson was a resident of Jackson,
Madison County, Tennessee. In May 2004, Johnson moved to the area of Atlanta, Georgia, and has
lived there since that time.

       On August 23, 2004, Jones and her husband, Billy Jones (collectively, “Plaintiffs”), filed a
lawsuit in the Circuit Court for Madison County against Johnson for damages arising out of the
accident. On the same date, a summons was issued to Johnson and also to the Plaintiffs’ uninsured
motorist insurance carrier, Tennessee Farmers Mutual Insurance Company (“Tennessee Farmers”).
See T.C.A. § 56-7-1206 (2000). Tennessee Farmers was timely served with process and filed an
answer to the complaint. It soon thereafter filed a motion for summary judgment.

        The original summons was issued to Johnson at her Jackson, Tennessee address. It was
returned unserved on August 26, 2004, with a notation, “Not Found, Moved Out Approximately
Three Months Ago To Powder Springs, GA.” The original process remained unserved for ninety
(90) days after the issuance, and the Plaintiffs did not renew process within one year of the original
date of issuance pursuant to Rule 3 of the Tennessee Rules of Civil Procedure.1

        Over a year later, on December 6, 2005, an alias summons was issued to Johnson, again at
her Jackson address. This was also returned unserved with a notation, “Not Found, Moved Over One
Year Ago, Possibly To GA.”

      On March 2, 2006, a third summons was issued to Johnson. This one was issued at
Johnson’s Georgia address, and she was served on March 8, 2006.

        On April 12, 2006, Johnson filed an answer and a motion to dismiss and/or for summary
judgment based on, among other things, the one-year statute of limitations for personal injury
actions. Discovery ensued.



         1
             Rule 3 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 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.

Tenn. R. Civ. P. 3.

                                                           -2-
         On June 15, 2006, the Plaintiffs took Johnson’s deposition. In her deposition, Johnson
testified that she moved to Georgia in May 2004 when she graduated from Jackson State Community
College. She moved in with a friend for about a week and then moved to a home in Powder Springs,
Georgia. After living in Powder Springs for approximately a year, Johnson moved to Marietta,
Georgia, where she lived at the time of her deposition. Johnson said that, when she moved from
Jackson, Tennessee, she visited the post office; she believed that she had forwarded her mail from
Jackson to the Powder Springs, Georgia address. She told her brother and her friends at work in
Jackson that she was moving to Georgia. Johnson also said that she reported the accident to her
insurance company within a day or two after the accident. About a year and a half before the
deposition, Johnson’s insurance company informed her that the Plaintiffs were attempting to file a
lawsuit against her. Johnson’s insurance carrier contacted her in Georgia by obtaining her telephone
number from her mother.

       On July 11, 2006, the Plaintiffs filed their response to Johnson’s motion as well as the motion
for summary judgment filed by Tennessee Farmers. The Plaintiffs argued that the lawsuit was not
time-barred because the statute of limitations was tolled pursuant to the suspension statute, T.C.A.
§ 28-1-111 (“suspension statute”). The suspension statute provides:

       If at any time any cause of action shall accrue against any person who shall be out of
       this state, the action may be commenced within the time limited therefor, after such
       person shall have come into the state; and, after any cause of action shall have
       accrued, if the person against whom it has accrued shall be absent from or reside out
       of the state, the time of absence or residence out of the state shall not be taken as any
       part of the time limited for the commencement of the action.

T.C.A. § 28-1-111 (2000). The Plaintiffs contend that they and their attorneys had exercised due
diligence in attempting to locate Johnson, and despite their due diligence, her whereabouts were not
discovered until February 2006.

       On July 12, 2006, the trial court held a hearing on the motions for summary judgment and/or
to dismiss filed by Johnson and by Tennessee Farmers. On the same day, the Plaintiffs filed the
affidavit of their former attorney, Lisa June Cox, attesting to her diligence in attempting to locate
Johnson. The Plaintiffs also filed Johnson’s deposition.

         On August 8, 2006, the trial court issued an order finding that, after considering the
pleadings, Johnson’s deposition, Cox’s affidavit, and the entire record, Johnson was entitled to
summary judgment based on the one-year statute of limitations. The trial court held that the statute
of limitations expired on August 27, 2004, one year after the date of the accident, when the Plaintiffs
failed to renew process within one year after the date of issuance of the original summons. The trial
court found that the suspension statute did not apply to toll the statute of limitations, because the
Plaintiffs did not use due diligence in ascertaining Johnson’s address. Based on the record, the trial
court made the following findings of fact:



                                                 -3-
5.    On August 26, 2004, the [original] summons was returned, unserved, with a
      notation from the deputy sheriff “Not found, moved out approximately three
      months ago to Powder Springs, GA”
6.    The original process remained unserved for 90 days after issuance, and
      Plaintiffs failed to renew process within one year of the original date of
      issuance pursuant to Rule 3 of the Tennessee Rules of Civil Procedure;
7.    As a result, the statute of limitations on Plaintiffs’ claims expired on August
      27, 2004.
8.    On December 6, 2005, Plaintiffs issued an alias summons after the statute of
      limitations expired, which was returned unserved noting again that Defendant
      Johnson had moved to Georgia.
9.    Plaintiffs were on notice that Defendant Johnson had moved to Georgia after
      the original process was returned unserved on August 26, 2004, with a
      notation from the deputy sheriff “Not found, moved out approximately three
      months ago to Powder Springs, GA.”
10.   Plaintiffs knew that Defendant Johnson was covered by a policy of liability
      insurance, and counsel for Plaintiffs remained in contact with Defendant
      Johnson’s liability carrier.
11.   Defendant Johnson’s liability carrier had Defendant’s current contact
      information.
12.   Plaintiffs’ counsel failed to serve a demand notice on Defendant Johnson’s
      liability carrier pursuant to Tenn. Code Ann. § 56-7-1104 to reveal the
      location and whereabouts of Defendant Johnson after the original process was
      returned unserved, noting that Defendant Johnson was not to be found and
      had moved to Powder Springs, Georgia.
13.   If Plaintiffs’ counsel had invoked the procedure contained in Tenn. Code
      Ann. § 56-7-1104, Defendant Johnson’s liability carrier would have been
      required to reveal the current contact information it possessed regarding the
      location of Defendant Johnson.
14.   Plaintiffs failed to invoke the procedure contained in Tenn. Code
      Ann. § 56-7-1104.
15.   The suspension statute . . . is inapplicable to toll the statute of limitations
      beyond its August 27, 2004, expiration date in the present case because
      Plaintiffs had knowledge that Defendant Johnson moved to Georgia, did not
      demand her Georgia address from Defendant Johnson’s liability carrier as
      provided by Tenn. Code Ann. [§] 56-7-1104, and did not serve her through
      the nonresident motorist statute, Tenn. Code Ann. § 20-2-203.
16.   Defendant Tennessee Farmers Mutual Insurance Company had a contractual
      subrogation right pursuant to a policy of uninsured motorist coverage issued
      to Plaintiff Doris Jones in effect on or about August 27, 2003.
17.   Because Plaintiffs destroyed Defendant [Tennessee Farmer’s] subrogation
      right by allowing the statute of limitations to expire, Plaintiffs forfeit any
      right of recovery against Defendant [Tennessee Farmers].


                                       -4-
From this order, the Plaintiffs now appeal.

        On appeal, the Plaintiffs argue that the trial court erred in granting summary judgment to
Johnson based on the statute of limitations. The Plaintiffs contend that there is a disputed issue of
fact as to whether the suspension statute tolls the one-year statute of limitations under these
circumstances.

         We review the trial court’s grant of summary judgment de novo with no presumption of
correctness. Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997). Summary judgment is
appropriate where “the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.” Tenn. R. Civ. P. 56.04. We are
obliged to view the evidence in a light most favorable to the nonmoving party, giving that party the
benefit of all reasonable inferences. Warren, 954 S.W.2d at 723 (quoting Bain v. Wells, 936 S.W.2d
618, 622 (Tenn. 1997)). Once the moving party demonstrates that no genuine issues of material fact
exist, the non-moving party must demonstrate, by affidavits or otherwise, that a disputed issue of
material fact exists for trial. Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn. 1993).

        The suspension statute, quoted above, tolls the statute of limitations for the period of time
in which any person against whom a cause of action has accrued is outside the State of Tennessee.
Generally, however, this statute does not apply against an out-of-state defendant in an automobile
accident/personal injury lawsuit, because service of process can be effected on the non-resident
driver through the Secretary of State using the nonresident motorist statute, T.C.A. § 20-2-203. See
Carr v. Borchers, 815 S.W.2d 528, 531 (Tenn. Ct. App. 1991). This is because, in general, the
suspension statute is inapplicable to toll a statute of limitations where there is a valid method of
service of process on an out-of-state defendant. See Arrowood v. McMinn County, 121 S.W.2d 566,
568-69 (Tenn. 1938).

        In Lam v. Smith, 891 S.W.2d 207 (Tenn. 1994), the Supreme Court recognized an exception
to the general Arrowood rule in cases where (1) the plaintiff lacked knowledge that the defendant
is an out-of-state resident, and (2) the plaintiff had exercised due diligence in trying to ascertain the
location of the defendant, but nevertheless remained unaware of the defendant’s nonresident status.
The Plaintiff’s argue that this exception is applicable in this case, and that the suspension statute
therefore applies.

        Johnson notes that the original summons was returned a few days after it was issued stating
that Johnson was no longer in Madison County, Tennessee, and had moved approximately three
months earlier to Powder Springs, Georgia. Thus, Johnson argues that the Plaintiffs knew she was
no longer a Tennessee resident in August 2004, and the first prong of the Lam exception is not met.
Moreover, Johnson argues that the Plaintiffs did not exercise due diligence in obtaining her new
address after they received the return of the original summons.




                                                   -5-
        The Plaintiffs argue that the record contains sufficient evidence of their diligence, based on
Johnson’s deposition and Cox’s affidavit. The Plaintiffs note that Johnson commented in her
deposition that, when she moved to Georgia, she did not leave contact information with anyone other
than her brother and her former employer. Furthermore, attorney Cox asserted in her affidavit that
she had conferred with an investigator, used the internet, and tried “other sources” in an effort to
obtain Johnson’s new address. Given all reasonable inferences, the Plaintiffs argue, summary
judgment should not have been granted because a genuine issue of material fact remained regarding
their due diligence.

         In order for the Plaintiffs to escape summary judgment in this case, they must point to
evidence in the record sufficient to create a genuine issue of material fact as to whether they knew
of Johnson’s nonresident status, and whether they used due diligence in attempting to ascertain
Johnson’s location. See Lam, 891 S.W.2d at 212. In this case, it is undisputed that the return of the
original summons notified the Plaintiffs that Johnson had moved from Madison County, Tennessee,
to Powder Springs, Georgia. Thus, only a few days after filing suit, the Plaintiffs were made aware
that Johnson was a non-resident and had been for three months. Clearly, the Plaintiffs have not met
the first prong of the Lam exception, namely, that they lacked knowledge that Johnson was an out-
of-state defendant. Regarding due diligence, it is undisputed that the Plaintiffs made no attempt to
have an alias summons served on Johnson within a year after the original summons was returned,
despite having been informed that Johnson had moved to Powder Springs, Georgia. In December
2005, the Plaintiffs inexplicably made a second attempt to effect service of process in Tennessee,
despite having been informed that Johnson was living in Powder Springs, Georgia. Cox’s affidavit
is best characterized as vague regarding her efforts to find Johnson. She notes that, when the first
summons was returned unserved, her “staff searched for [Johnson] using various internet and other
sources on many occasions.” There is no affidavit from the unnamed “staff” and the “other sources”
are likewise not identified.

       Moreover, as the trial court pointed out, the Plaintiffs were in contact with Johnson’s liability
insurance carrier, and the carrier would have been required to disclose her address to them pursuant
to Tennessee Code Annotated § 56-7-1104 had the Plaintiffs merely requested the information.2


       2
           Tennessee Code Annotate § 56-7-1104 provides in pertinent part:

       (a) Upon a sheriff’s return of “not to be found” within the particular county, or upon the secretary of
       state being unable to complete process upon the defendant or defendants, the plaintiff may serve
       demand notice upon the liability insurance carrier to reveal the location and whereabouts of the
       defendant automobile owner or operator.

       ***

       (c) The liability insurance carrier shall upon such notice reveal to the plaintiff or the plaintiff’s
       attorney any information which it possesses as to the location of the defendant automobile operator
       or owner.

                                                                                                         (continued...)

                                                        -6-
Cox’s affidavit mentions no attempts to obtain Johnson’s address from this source. Under these
circumstances, the undisputed evidence shows that the Plaintiffs did not exercise due diligence in
ascertaining Johnson’s address, and the exception in Lam is not applicable. See Ballard v.
Ardenhani, 901 S.W.2d 369, 372-74 (Tenn. Ct. App. 1995). Therefore, the suspension statute does
not apply in this case, and summary judgment in Johnson’s favor based on the statute of limitations
was appropriate.

        Tennessee Farmers had a contractual subrogation right pursuant to the Plaintiffs’ uninsured
motorist policy. As noted by the trial court, because the Plaintiffs destroyed Tennessee Farmers’
subrogation right by allowing the statute of limitations to expire, the Plaintiffs have forfeited any
right of recovery against Tennessee Farmers. See T.C.A. § 56-7-1204 (2000); see also Aetna Cas.
& Sur. Co. v. Tenn. Farmers Mut. Ins. Co., 867 S.W.2d 321, 322 (Tenn. Ct. App. 1993).

         The decision of the trial court is affirmed. Costs on appeal are taxed to Appellants Doris
Jones and Billy J. Jones and their surety, for which execution may issue, if necessary.




                                                      ___________________________________
                                                      HOLLY M. KIRBY, JUDGE




        2
          (...continued)
T.C.A. § 56-7-1104 (2000).

                                                -7-
