               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                               October 26, 2015 Session

 DORIS ANNETTE CHRISTENBERRY v. J.G. CHRISTENBERRY ET AL.

                    Appeal from the Circuit Court for Blount County
                      No. L-18822    David R. Duggan, Judge



             No. E2015-00497-COA-R3-CV-FILED-JANUARY 14, 2016



This appeal involves parties who were married for thirty-six years prior to divorcing in
2004. The wife claims that she received a judgment against the husband pursuant to their
divorce entitling her to the sum of $24,000. The wife insists that because this judgment
was never paid by the husband, she filed a lien against real property that was awarded to
him in the divorce. Upon learning that the real property in question was scheduled to be
sold at auction, the wife filed the instant action, seeking to stop the auction and enforce
her lien. The trial court dismissed the wife‟s complaint and also dismissed and dissolved
the underlying lien. Wife timely appealed. Having determined that the trial court‟s
judgment of dismissal was erroneous, we reverse the judgment and remand for further
proceedings consistent with this opinion.

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

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.

Doris Annette Christenberry, Seymour, Tennessee, Pro Se.

John D. Lockridge and Michael J. Bock, Knoxville, Tennessee, for the appellee, J.G.
Christenberry.

                                       OPINION

       The plaintiff, Doris Annette Christenberry (“Wife”), and the defendant, J.G.
Christenberry (“Husband”), were divorced in 2004 following a marriage of thirty-six
years‟ duration. In conjunction with the divorce, the trial court distributed the parties‟
marital assets. The court awarded the parties‟ marital residence to Wife but granted
Husband a life estate in said marital residence should Wife predecease him. Husband
was awarded the parties‟ ownership in H.A.G., Inc., which included property consisting
of a golf course, a rental house, and an inn. Wife appealed the trial court‟s property
distribution, taking issue with the trial court‟s award of the life estate in the marital
residence plus all of the property owned by H.A.G., Inc., to Husband. In addition, Wife
complained that the trial court should have awarded her the “farm” and additional
acreage that were “part of” the marital residence property. Wife further posited that the
trial court erred by awarding Husband a rental home on Tittsworth Road in Seymour
while only awarding Wife $20,000 for her ownership interest in said rental property.

        On appeal, this Court modified the trial court‟s marital property distribution by
removing the life estate in the marital residence that had been granted to Husband.
Christenberry v. Christenberry, No. E2004-02193-COA-R3-CV, 2005 WL 1996622 at
*4 (Tenn. Ct. App. Aug. 19, 2005). Wife was instead declared to be the sole owner of
that residence. Id. Regarding Wife‟s remaining issues, this Court determined that the
trial court‟s marital property distribution should be affirmed in all respects. Id.

       Wife, self-represented, filed the present action on October 10, 2014, seeking to
“cease and stop the Auction or Sale of Property of 115 acres located at 1326 Tittsworth
Rd, Seymour, Tennessee.” According to Wife‟s complaint, she had previously recorded
a lien on this property owned by Husband. In support of the lien, Wife relied on a
judgment in her favor of $24,000, which Husband had never paid. Wife subsequently
filed a document entitled “Evidence and Proof to Support Motion in Lawsuit to Cease
Auction and in Support of Lien,” attaching a copy of the lien document that she filed and
recorded with the Blount County Register of Deeds on April 2, 2013. In the lien
document, Wife also referenced an unpaid judgment against Husband in the amount of
$24,000; however, a copy of the judgment was not attached to the documents filed by
Wife in this action.

       Wife did attach to her supporting documentation copies of letters she had sent to
Husband and the other defendants named in this action, namely United Country Real
Estate and Lisa McBride at Clinch Mountain Realty and Auction. These letters purported
to notify the defendants of Wife‟s existing lien on the property, which had apparently
been scheduled for sale by auction. The record contains no evidence that summonses
were issued or served upon the defendants at the time Wife‟s complaint was filed or at
any time following.




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       On December 5, 2014, the defendants filed a motion to dismiss pursuant to
Tennessee Rules of Civil Procedure 12.02, 12.03, and 12.06.1 The defendants asserted
that the complaint failed to state a claim upon which relief could be granted and that the
underlying lien was invalid and unenforceable. The defendants further claimed
insufficiency of process and insufficiency of service of process.

       A hearing was held regarding the motion to dismiss, during which Wife appeared
pro se. The trial court subsequently entered an order, finding in pertinent part:

               1.      That no process is prayed for in the complaint;

               2.      That records on file from the Clerk‟s Office do not reflect any
                       issue of summons, which is not prayed for, therefore there is
                       no issuance of service and return of service;

               3.      That there is both insufficiency of process and insufficiency
                       of service of process;

               4.      That based on the quit claim deed dated September 20, 2006
                       and the correction quit claim deed, dated December 8, 2006,
                       both from [Wife] to [Husband], that the property at issue was
                       conveyed to [Husband] pursuant to the quit claim deed and
                       correction quit claim deed;

               5.      That also pursuant to the quit claim deeds, [Wife] has no
                       interest to the property described in the quit claim deeds, less
                       Exhibit A to the correction quit claim deed;

               6.      That with respect to the lien, the Court finds that [Wife]
                       referenced the lien in the complaint;

               7.      That, in essence, she has amended the complaint by filing a
                       second document on October 20, 2014, (ten days after the
                       original complaint) entitled EVIDENCE AND PROOF TO
                       SUPPORT THE MOTION IN LAWSUIT TO CEASE
                       AUCTION AND IN SUPPORT OF LIEN;

               8.      That [Wife] had the right to file an amended complaint


1
 We note that Tennessee Rule of Civil Procedure 12.03 addresses motions for judgment on the pleadings.
Tennessee Rule of Civil Procedure 12.06 concerns motions to strike.
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                    without leave of the Court because no answer had been yet
                    filed;

             9.     That the Court will treat the complaint as amended;

             10.    That in the complaint, as amended, the Plaintiff is seeking to
                    enforce the lien as to property she quit claimed to [Husband]
                    on September 20, 2006.

              Accordingly, based upon the findings of fact, the Court dismisses the
      complaint, as amended, and orders the lien be dissolved and dismissed.
      The Court directs that a copy of the quit claim deed and the corrected quit
      claim deed with the included exhibit be attached to this court order as
      Exhibit A. The Court further directs that all necessary costs be taxed to the
      plaintiff.

(Emphasis in original.)

       The trial court subsequently entered an amended order of dismissal, referencing
the record book and page number of the dismissed and dissolved lien. Wife timely
appealed.

                                  II. Issues Presented

      Wife presents the following issues for our review, which we have restated slightly:

      1.     Whether the trial court erred in considering quitclaim deeds
             presented to the court during the hearing, which Wife stated to the
             court were fraudulent documents.

      2.     Whether the trial court erred in failing to address the fact that
             $10,000 in property taxes had been paid by Wife.

      3.     Whether the trial court erred in its interpretation of this Court‟s
             previous ruling, which awarded Wife sole ownership of the marital
             residence.

      4.     Whether the trial court erred in dismissing Wife‟s lien for the
             payment of $24,000 awarded to her in the property distribution
             pursuant to the parties‟ judgment of divorce.


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      Husband frames the sole issue for review as:

      5.     Whether the trial court erred in dismissing Wife‟s complaint and
             dissolving Wife‟s lien placed on Husband‟s property.

                                III. Standard of Review

      As our Supreme Court has elucidated with regard to motions seeking dismissal of
a complaint pursuant to Tennessee Rule of Civil Procedure 12.02(6):

      A Rule 12.02(6) motion to dismiss only seeks to determine whether the
      pleadings state a claim upon which relief can be granted. Such a motion
      challenges the legal sufficiency of the complaint, not the strength of the
      plaintiff‟s proof, and, therefore, matters outside the pleadings should not be
      considered in deciding whether to grant the motion. In reviewing a motion
      to dismiss, the appellate court must construe the complaint liberally,
      presuming all factual allegations to be true and giving the plaintiff the
      benefit of all reasonable inferences. It is well-settled that a complaint
      should not be dismissed for failure to state a claim unless it appears that the
      plaintiff can prove no set of facts in support of his or her claim that would
      warrant relief. Great specificity in the pleadings is ordinarily not required
      to survive a motion to dismiss; it is enough that the complaint set forth “a
      short and plain statement of the claim showing that the pleader is entitled to
      relief.”

Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696 (Tenn. 2002) (internal
citations omitted). Similarly, with respect to the grant of a motion for judgment on the
pleadings pursuant to Tennessee Rule of Civil Procedure 12.03, our Supreme Court has
explained:

      In light of the fact that this case was dismissed on a motion for judgment on
      the pleadings pursuant to Rule 12.03 of the Tennessee Rules of Civil
      Procedure, we are bound to treat as false all allegations of the Defendant,
      the moving party, which are denied, and as true all well-pleaded allegations
      contained in the pleadings of the Plaintiff, the opponent of the motion. In
      other words, on an appeal from an order allowing a judgment on the
      pleadings, as in this case, all well-pleaded facts and all reasonable
      inferences drawn therefrom must be accepted as true. Conclusions of law
      are not admitted nor should judgment on the pleadings be granted unless
      the moving party is clearly entitled to judgment. Thus, all of the facts
      alleged by the Plaintiff in this case must be taken as true and the issue then
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       before us is whether upon those facts the Plaintiff‟s complaint states a cause
       of action that a jury should have been entitled to decide.

McClenahan v. Cooley, 806 S.W.2d 767, 769 (Tenn. 1991) (internal citations omitted).

       We note also that pleadings “prepared by pro se litigants untrained in the law
should be measured by less stringent standards than those applied to pleadings prepared
by lawyers.” Stewart v. Schofield, 368 S.W.3d 457, 463 (Tenn. 2012) (citing Carter v.
Bell, 279 S.W.3d 560, 568 (Tenn. 2009); Hessmer v. Hessmer, 138 S.W.3d 901, 903
(Tenn. Ct. App. 2003); Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003)).
Parties proceeding without benefit of counsel are “entitled to fair and equal treatment by
the courts,” but we “must not excuse pro se litigants from complying with the same
substantive and procedural rules that represented parties are expected to observe.”
Hessmer, 138 S.W.3d at 903.

                       IV. Lack of Issuance and Service of Process

       Determining that the action filed by Wife was, in essence, an action to enforce her
lien, the trial court dismissed the action based in part upon Wife‟s failure to have
summonses issued or served at the time of filing the complaint. The trial court entered its
order of dismissal approximately four months following the filing of the complaint. We
find this action by the trial court to be in error, and we find this issue to be dispositive of
the appeal.

      As previously stated, Wife filed her complaint on October 10, 2014. No
summonses were issued at that time. Wife instead included a certificate of service with
the complaint, reflecting that she mailed or delivered copies of the complaint to the
defendants. Such action by Wife does not comply with the requirements of Tennessee
Rule of Civil Procedure 3, which states:

       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.


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(Emphasis added.) Furthermore, Tennessee Rule of Civil Procedure 4.01 provides:

       (1) Upon the filing of the complaint the clerk of the court wherein the
       complaint is filed shall forthwith issue the required summons and cause it,
       with necessary copies of the complaint and summons, to be delivered for
       service to any person authorized to serve process. This person shall serve
       the summons, and the return indorsed thereon shall be proof of the time and
       manner of service. A summons may be issued for service in any county
       against any defendant, and separate or additional summonses may be issued
       against any defendant upon request of plaintiff. Nothing in this rule shall
       affect existing laws with respect to venue.

       (2) A summons and complaint may be served by any person who is not a
       party and is not less than 18 years of age. The process server must be
       identified by name and address on the return.

       (3) If a plaintiff or counsel for plaintiff (including third-party plaintiffs)
       intentionally causes delay of prompt issuance of a summons or prompt
       service of a summons, filing of the complaint (or third-party complaint) is
       ineffective.

(Emphasis added.)

        In this case, Wife did not request that summonses be issued at the time the
complaint was filed. Furthermore, the clerk did not cause summonses to be issued. As
this Court has previously recognized: “Rule 4.01 requires that process be issued
„forthwith.‟ This duty, however, is placed squarely on the court clerk . . . .” Stempa v.
Walgreen Co., 70 S.W.3d 39, 43 (Tenn. Ct. App. 2001). Based upon its findings of fact,
the trial court determined that Wife‟s complaint should be dismissed, premised in part
upon the grounds of insufficiency of process and insufficiency of service of process.
Having thoroughly reviewed this matter, however, we determine that the trial court‟s
dismissal on this basis was in error.

       Pursuant to the explicit language of Tennessee Rule of Civil Procedure 3, if no
process is issued at the time of the filing of the complaint, the plaintiff may have process
issued for up to one year from the complaint‟s filing date. Failure to issue process will
result in the filing of the complaint being ineffective to toll the statute of limitations
during the year following the filing date only if the plaintiff or plaintiff‟s attorney
intentionally causes delay in the issuance or service of the summons. See Tenn. R. Civ.
P. 4.01(3). Conversely, unintentional delay in the issuance or service of a summons
would still properly commence the action. See Tenn. R. Civ. P. 3 (“An action is
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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.”). See also Stempa, 70 S.W.3d at 44.

       The trial court herein dismissed Wife‟s complaint four months following the filing
of the complaint for, inter alia, insufficiency of process and insufficiency of service of
process. We conclude that the trial court erred in relying upon the lack of issuance or
service of process as a ground for dismissal when Wife had one year from the date the
complaint was filed during which she could have process issued and served. See Slone v.
Mitchell, 205 S.W.3d 469, 473 (Tenn. Ct. App. 2005); Stempa, 70 S.W.3d at 44.
Although a demonstration of intentional delay by Wife in the issuance or service of
summons would alter this holding, Husband presented no evidence of intentional delay in
this case. See Tenn. R. Civ. P. 4.01(3).

       By reason of the trial court‟s dismissal of the complaint for insufficiency of
process and service of process within one year of the filing of the complaint, we
determine that the trial court‟s judgment of dismissal must be reversed. This case is
remanded to the trial court for summonses to be issued and served upon the defendants.
We note that, without proper issuance and service of process, the court never acquired
personal jurisdiction over the defendants. See McNeary v. Baptist Mem’l Hosp., 360
S.W.3d 429, 436 (Tenn. Ct. App. 2011). The trial court and, consequently, this Court
would thus be unable to adjudicate any of the substantive issues raised by the parties until
personal jurisdiction has been acquired. Turner v. Turner, 473 S.W.3d 257, 269 (Tenn.
2015) (“The lawful authority of a court to adjudicate a controversy brought before it
depends upon that court having jurisdiction of the subject matter and jurisdiction of the
parties.”).

                                     VI. Conclusion

       For the foregoing reasons, the trial court‟s judgment of dismissal is reversed. This
case is remanded to the trial court for summonses to be issued and served upon the
defendants and for further proceedings consistent with this opinion. Costs on appeal are
taxed to the appellee, J.G. Christenberry.




                                                 _________________________________
                                                 THOMAS R. FRIERSON, II, JUDGE



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