                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                    April 24, 2008 Session

      STANLEY A. DUMBAUGH, ET AL. v. DR. GEORGE E. THOMAS,
       INDIVIDUALLY AND AS AN EMPLOYEE OF TRANSSOUTH
                    HEALTHCARE, P.C., ET AL.

                  Direct Appeal from the Circuit Court for Madison County
                           No. C-05-411     Roger A. Page, Judge



                     No. W2007-01814-COA-R3-CV - Filed July 28, 2008


In this medical malpractice action, the trial court granted summary judgment in favor of the
defendant doctor because the plaintiff had not personally served the defendant doctor; was put on
notice of this insufficiency in the defendant’s answer; and took no action to re-issue the summons
and serve the doctor. Following entry of summary judgment, the plaintiff sought relief from this
judgment pursuant to Rule 60.02 (1), arguing that the statements of the trial court and the actions of
the parties implied that service was proper and led his counsel to believe there was no need to re-
serve the defendant doctor. The trial court denied plaintiff’s motion, and the plaintiff appealed.
Finding no abuse of discretion, we affirm.

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

DAVID R. FARMER , J., delivered the opinion of the court, in which HOLLY M. KIRBY , J., and WALTER
C. KURTZ, SR. J., joined.

Lanis Karnes and Candice Marlene Simpson, Jackson, Tennessee, for the appellants, Stanley A.
Dumbaugh and wife, Sue Bartholomew.

Marty Phillips and Craig P. Sanders, Jackson, Tennessee, for the appellee, Dr. George E. Thomas.

Hubert B. Jones and Martin E. Dunn, Dyersburg, Tennessee, for the appellee, TransSouth
Healthcare, P.C.




                                             OPINION
        On October 11, 2005, Stanley Dumbaugh (Mr. Dumbaugh) and his wife, Sue Bartholomew,1
filed suit against Dr. George E. Thomas (Dr. Thomas), individually and as an employee of
TransSouth Health Care, P.C. (TransSouth), and against TransSouth, for alleged injuries Mr.
Dumbaugh sustained from the medical treatment provided by the defendants. Against Dr. Thomas,
Mr. Dumbaugh proceeded on theories of negligence, negligence per se, breach of contract, and
failure to conform to the standard of care. As to TransSouth, Mr. Dumbaugh pled respondeat
superior.

                                             Service of Process

        On October 17, 2005, a Madison County Deputy Sheriff served the summons and complaint
upon Vera Tillman (Ms. Tillman), Dr. Thomas’s purported office manager. According to the
deputy’s affidavit, his normal procedure is to ask for the office manager or the individual authorized
to accept service. The deputy’s affidavit further averred that Ms. Tillman stated she had the
authority, by power of attorney, to accept service on behalf of Dr. Thomas. Mr. Dumbaugh contends
that Ms. Tillman has since accepted service on Dr. Thomas’s behalf, but we can find nothing in the
record to support this allegation. Dr. Thomas, on the other hand, filed an affidavit stating that Ms.
Tillman is neither his employee nor his authorized agent for accepting service of process on his
behalf.

       On January 11, 2006, a complaint and summons were served on Cathy Wallace, who,
according to Mr. Dumbaugh, “oversees the front office area of the corporate offices of . . .
TransSouth.” The deputy instructed Ms. Wallace to read the summons to determine what action
should be taken, but, after accepting it, she allegedly delivered it to medical records without reading
it.

   Denial of Plaintiff’s Motions for Default Judgment and of Dr. Thomas’s First Motion for
                                      Summary Judgment

        Mr. Dumbaugh filed a motion for default judgment against Dr. Thomas on January 13, 2006,
based upon his failure to respond to the complaint, and upon TransSouth on February 21, 2006, for
the same reason. Both parties subsequently filed answers to the complaint and responses to the
motions for default judgment. In their answers, both parties pled insufficiency of service of process
as the first defense. Dr. Thomas additionally filed a motion to strike the plaintiff’s request for
punitive damages and for joint and several liability, as well as a motion for summary judgment based
upon lack of expert proof.

        The trial court heard argument on both of Mr. Dumbaugh’s motions for default judgment on
May 8, 2006, and denied them on May 17, 2006. During the hearing, Dr. Thomas asked the court
either to rule that he was never properly served, or, alternatively, to deny the default judgment


        1
        Although Mr. Dumbaugh and his wife, Sue Bartholomew, are both plaintiffs in this action, we refer only to
Mr. Dumbaugh throughout this opinion solely for clarity and succinctness.

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motion and allow his answer to stand. The court stated it was not necessary to determine whether
service was proper and concluded that the defendants’ answers would stand. It set the summary
judgment hearing for May 23, 2006. Based upon this exchange, Mr. Dumbaugh’s counsel believed
service of process was no longer an issue.

                          Award of Summary Judgment to Dr. Thomas

         Following Mr. Dumbaugh’s filing of an expert affidavit, the trial court denied Dr. Thomas’s
motion for summary judgment and motion to strike by order entered on July 24, 2006. Dr. Thomas
filed a second motion for summary judgment on November 15, 2006, based upon insufficient service
of process and the statute of limitations. In his response, Mr. Dumbaugh attached a partial transcript
from the May 8, 2006, default judgment hearing to establish that the issue of service of process had
already been presented to the court, but to no effect. The trial court entered an order granting
summary judgment to Dr. Thomas on March 22, 2007. It set forth the following undisputed facts
supporting its conclusion:

       1.      The Plaintiffs filed a Complaint on October 11, 2005 alleging that Defendant
               Thomas committed medical malpractice on October 13, 2004.

       2.      The Summons and Complaint were to be delivered to George E. Thomas,
               M.D. at 379 Hospital Blvd., Jackson, TN 38305 or 144 Greendale Dr.,
               Jackson, TN 38305.
       3.      On October 17, 2005, Plaintiffs attempted to serve Defendant Thomas by
               delivering a copy of the Summons and Complaint to someone named “Vera
               Tillman.” There is no indication of Ms. Tillman’s capacity on the Return of
               Summons.

       4.      On January 26, 2006, Defendant Thomas filed an Answer and stated as his
               First Defense insufficiency of service of process. The Answer also stated that
               Defendant Thomas had not been served with process and that Vera Tillman
               was not authorized to accept service of process on his behalf.

       5.      On January 26, 2006, Defendant Thomas also filed an Affidavit [stating the
               same and providing that he had never been personally served with a copy of
               the Summons and Complaint].

       6.      Plaintiffs filed an Affidavit from Madison County Sheriff’s Deputy Bryan
               Rushing, which provides: ‘On or about October 17, 2005, I attempted to
               serve a Summons and Complaint in the cause on Dr. George E. Thomas at
               379 Hospital Blvd., Jackson, Madison County, Tennessee.’ It further
               provides: ‘to the best of my recollection, I was told by the Office Manager
               that she was authorized, by Power of Attorney, to accept service on behalf of
               Dr. Thomas and/or any physicians in that office’ and ‘It is my normal
               practice if someone indicates that they do not have the authority to accept
               service, I continue to attempt personal service on the individual.’

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        7.      Despite receiving Defendant Thomas’ Answer, Response to Motion for
                Default Judgment, and Affidavit whereby he expressly informed Plaintiffs
                that he had not been personally served with process and that Vera Tillman
                was not authorized to accept service of process on his behalf, Plaintiffs failed
                to have a summons reissued pursuant to Tennessee Rule of Civil Procedure
                3.

The order further stated that these filings and the default judgment hearing placed Mr. Dumbaugh
on notice that Dr. Thomas was contesting the sufficiency of service of process. The trial court
concluded that “Plaintiffs had several months to have Summons reissued and have Dr. Thomas
served to eliminate any risk of lack of service in this matter.” Finally, the trial court found that there
was insufficient proof in the record that Vera Tillman was Dr. Thomas’s authorized agent for service
of process, and that Ms. Tillman’s statements set forth in the Deputy’s affidavit were hearsay. The
court concluded by directing the entry of a final judgment pursuant to Tennessee Rule of Civil
Procedure 54.02.

                         Denial of Mr. Dumbaugh’s Rule 60 Motion and
                          TransSouth’s Award of Summary Judgment

         On April 11, 2007, TransSouth filed a motion for summary judgment. On May 16, 2007,
Mr. Dumbaugh filed a motion pursuant to Rule 60.02(1) of the Tennessee Rules of Civil Procedure,
seeking relief from the judgment entered in favor of Dr. Thomas on the basis of mistake,
inadvertence, surprise, or excusable neglect of his counsel. In essence, Mr. Dumbaugh contended
that, through his counsel’s interactions with the court and the other parties, he was led to believe that
service was proper. Otherwise, he argued, he would have had the summons re-issued and re-served
within the proper time frame.

        On May 25, 2007, the trial court heard argument on both TransSouth’s motion for summary
judgment and on Mr. Dumbaugh’s Rule 60 motion. It granted TransSouth’s motion on July 10,
2007, and denied Mr. Dumbaugh’s motion six days later. Mr. Dumbaugh filed his notice of appeal
on August 9, 2007, seeking review of the court’s award of summary judgment to TransSouth and
its denial of his Rule 60 motion.

                                           Issues Presented

        Mr. Dumbaugh raises the following issues, as slightly reworded, for review on appeal:


        1.      Did the lower court err by granting summary judgment for
                Defendants/Appellees based on insufficient service of process when: (1)
                Plaintiffs/Appellants properly executed service; (2) service was made by a
                deputy sheriff on a representative of each Defendant Appellee; (3) the same
                representatives continue to accept service and did so in a subsequent medical
                malpractice case where Defendant Thomas was being served; (4) the
                Defendants/Appellees had actual notice of the pending suit; (5) Counsel for

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               all Defendants/Appellees appeared in court; (6) Defendant/Appellee Thomas
               appeared at the court hearings along with counsel; (7) Defendant/Appellee
               Thomas allowed himself to be deposed for hours; (8) Defendants/Appellees
               propounded discovery; (9) Defendants/Appellees answered discovery; (10)
               Defendants/Appellees further participated fully in the suit before the trial
               court in a multitude of motions and pre-trial activity; and (11) the Judge,
               through statements in trial and rulings, appeared to have accepted service as
               proper?

       2.      Under Rule 60.02 of the Tennessee Rules of Civil Procedure, did the lower
               court err when it concluded that Plaintiffs/Appellants’ matter was not a
               situation in which the extraordinary relief of Rule 60.02 should extend?

        Dr. Thomas raises the issue of whether the trial court abused its discretion by denying
Plaintiffs’ Motion for Relief from Judgment filed pursuant to Tennessee Rule of Civil Procedure
60.02(1), which is an extraordinary remedy, where Plaintiffs failed to personally serve Dr. Thomas,
or an agent authorized to accept service on his behalf, before expiration of the statute of limitations.

       Finally, TransSouth presents the following issues on appeal:

       1.      Whether the trial court properly denied the plaintiffs’ Rule 60.02(1) motion
               as to the final judgment in favor of Dr. Thomas since an affirmance of the
               trial court’s ruling on this issue is also determinative of the appeal as to
               TransSouth; and

       2.      If this Court grants plaintiffs relief vacating the final judgment as to Dr.
               Thomas, whether the grant of summary judgment as to TransSouth should be
               sustained on the alternative ground, namely that plaintiffs failed to effectuate
               proper service on TransSouth and as a result, plaintiffs’ action as to
               TransSouth is barred by the applicable statute of limitations.

                                        Standard of Review

        In this appeal, we review the trial court’s denial of Mr. Dumbaugh’s Rule 60 motion.
When reviewing a trial court’s decision to grant or deny relief pursuant to Tennessee Rule of
Civil Procedure 60.02, we do so with great deference to the trial court. Henry v. Goins, 104
S.W.3d 475, 479 (Tenn. 2003). We will set aside the ruling only where there has been an abuse
of discretion, meaning that the trial court has “applied an incorrect legal standard, or reached a
decision which is against logic or reasoning that caused an injustice to the party complaining.”
Id.

                                               Analysis

        At the outset, we note that the outcome of Mr. Dumbaugh’s case against Dr. Thomas will
dictate whether we reach any issues involving TransSouth. Importantly, Mr. Dumbaugh does not

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contend that he could still maintain an action against TransSouth even if his case against Dr.
Thomas were properly dismissed on procedural grounds. Indeed, in his response in opposition to
TransSouth’s motion for summary judgment, he states that “based on the doctrine of respondeat
superior, if this matter is dismissed in a final judgment as against . . . Dr. Thomas, then there is
no liability on the part of Defendant, TransSouth.” Further, his arguments on appeal are
consistent with this position. Accordingly, we shall first address Mr. Dumbaugh’s case against
Dr. Thomas because its outcome determines that of TransSouth.

         Mr. Dumbaugh appeals the trial court’s denial of his motion for relief from summary
judgment entered in favor of Dr. Thomas. He filed this motion pursuant to Rule 60.02(1) of the
Tennessee Rules of Civil Procedure, which allows for such relief in situations involving mistake,
inadvertence, surprise, or excusable neglect. Tenn. R. Civ. P. 60.02(1). A Rule 60 movant bears
the burden of proof and must set forth particular facts that explain why he or she is justified in
seeking relief. See Henry, 104 S.W.3d at 482. In his Rule 60 motion, Mr. Dumbaugh requested
that the court set aside the summary judgment based upon the mistake, inadvertence, surprise, or
excusable neglect of his counsel. He submitted a memorandum of law and two affidavits, one
from him and one from his counsel, in support of the motion. The affidavits set forth the
following facts: that, following the default judgment hearing,2 Mr. Dumbaugh’s counsel
sincerely believed that Dr. Thomas had been properly served; that the statements and actions of
the trial court and parties alike implied as much; that the trial court’s failure to hear testimony
from the process server at that hearing indicated that service was proper; and that his counsel
would have otherwise had the summons re-issued and re-served within the proper time frame.

        On appeal, Mr. Dumbaugh seeks to re-argue the propriety of the service upon Vera
Tillman, but we must confine our review to the parameters Mr. Dumbaugh himself set in seeking
this extraordinary remedy. We further note that, despite the surprise of Mr. Dumbaugh’s counsel
following the entry of summary judgment, Mr. Dumbaugh neither sought to alter or amend the
judgment via Tennessee Rule of Civil Procedure 59, nor did he appeal it to this Court.
Accordingly, we shall address only the facts set forth in Mr. Dumbaugh’s Rule 60 filing to
determine if the trial court erred in denying him relief.

        The trial court’s order denying Mr. Dumbaugh’s motion states that he failed to meet the
“high burden associated with such relief.” In reviewing this judgment under an abuse of
discretion standard, we must consider whether (1) there existed a sufficient evidentiary
foundation; (2) the trial court correctly applied the appropriate legal principles; and (3) the trial
court’s decision falls within the spectrum of acceptable alternatives. Thompson v. Chafetz, 164
S.W.3d 571, 574 (Tenn. Ct. App. 2004). We are unable to find an abuse of discretion in this case
for the following reasons.



         2
          Both affidavits refer to the first summary judgment hearing, but it appears they intended to specify the default
judgment hearing instead. There is no indication that the first summary judgment hearing involved the issue of service
of process, w hereas the record contains a transcript from the default judgment hearing during which this issue was
discussed. Further, Mr. Dumbaugh cites only to the statements from the default judgment hearing.

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        The crux of the question before the trial court was whether Mr. Dumbaugh’s counsel was
justified in believing the dispute about service of process had been resolved. Mr. Dumbaugh
points us to the transcript of the default judgment hearing in which the parties discussed service
of process. We note, first, that the trial court made clear to counsel for Mr. Dumbaugh that, even
if service were proper, his decision to award a default judgment would still be a matter of
discretion.

       THE COURT [(addressing counsel for Mr. Dumbaugh)]: . . . let’s assume for
       the moment that these defendants were properly served under Rule 55 and the
       case is now under – isn’t it still within the Court’s discretion?

               ....

               If we’re in a situation where I have granted default and defendants came
       back under Rule 60 . . . to move to set it aside, wouldn’t that also be within my
       discretion?

We further note that counsel for Dr. Thomas unequivocally argued that service was insufficient
because Vera Tillman was neither the employee nor authorized to accept service of process on
Dr. Thomas’s behalf. He continued as follows:

               I note that the complaint was left at his office whereas the default
       judgement [sic] motion was mailed to his house. Dr. Thomas indeed got the
       motion for default judgment. That’s when he contacted me and we responded. I
       just don’t think, with all due respect to opposing counsel, that there’s any question
       based upon the return of summons that Dr. Thomas has not been served. So the
       clock has not been ticking on his time to respond to this complaint.

               Nevertheless, out of an abundance of caution, when he did get the default
       judgment motion and I was retained, we filed an answer within one week of when
       he got [it].

               ....

              . . . . So we would respectfully request the Court to determine that Dr.
       Thomas has not been served under Rule 4.04. And in the alternative, should the
       Court disagree with that position, to exercise its discretion and deny the default,
       permit the answer that’s already been filed to stand and this case to go forward on
       the merits rather than the default.

       The trial court then heard argument from TransSouth and concluded as follows:

       I don’t even know that it’s even necessary for the Court to determine whether or
       not service was proper here. Does everybody agree with that? Is there any reason?
       All right. Based on my reading of Rule 55 and the cases thereunder and

                                                -7-
       especially, of course, looking at Rule 60, . . . I’m going to find that the motion for
       default judgment should be denied. . . . And I will let the answers of these
       defendants stand.

Alongside this exchange, however, is the trial court’s order merely denying the motion for
default judgment and declaring that the answers would stand. We note that “the court speaks
through its order, not through the transcript.” In re Adoption of E.N.R., 42 S.W.3d 26, 31 (Tenn.
2001); Cunningham v. Cunningham, No. W2006-02685-COA-R3-CV, 2008 WL 2521425, at *4
(Tenn. Ct. App. June 25, 2008). Counsel for Mr. Dumbaugh did not request a clarification from
the trial court even though the first defense listed in Dr. Thomas’s answer was the insufficiency
of service of process. Indeed, the only question before the trial court that day was whether to
award Mr. Dumbaugh a default judgment. It did not consider or decide an affirmative request for
relief from Dr. Thomas.

        Mr. Dumbaugh also contends that the trial court’s decision not to hear testimony from the
process server indicated that service was proper. Yet, the transcript of the hearing indicates
otherwise. At the outset of the hearing, the trial court asked Mr. Dumbaugh’s counsel if her
witnesses had anything more to add to their statements in the affidavit. She answered in the
negative, and the trial court then requested that she proceed with her argument. Moreover, in
light of the fact that the trial judge expressly stated he would not render a finding on service of
process, we cannot understand how one might conclude that the court’s failure to hear testimony
from the process server would indicate that service was proper.

        Counsel for Mr. Dumbaugh also points out that Dr. Thomas fully participated in
discovery and filed an unsuccessful motion for summary judgment prior to employing the service
of process defense. Yet, she advances no argument beyond the fact that this behavior implied
proper service and demonstrated the merits of Mr. Dumbaugh’s case. Without more, we cannot
conclude that Mr. Dumbaugh met his burden of proof on the Rule 60 motion. Indeed, although
Mr. Dumbaugh’s counsel’s belief may have been sincere, we cannot conclude that it was
justifiably held with any degree of certainty, particularly when she could have requested
clarification from the court or, as an added safety measure, simply re-served Dr. Thomas.

       Finding no abuse of discretion, we affirm the trial court’s denial of Mr. Dumbaugh’s Rule
60 motion. Likewise, based upon Mr. Dumbaugh’s assertion that TransSouth’s liability should
hinge upon the outcome of his case against Dr. Thomas, we affirm the entry of summary
judgment in favor of TransSouth. Costs of this appeal are taxed to the Appellants, Stanley
Dumbaugh and Sue Bartholomew, and their surety, for which execution shall issue if necessary.



                                                      ___________________________________
                                                      DAVID R. FARMER, JUDGE




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