                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON

                                 September 22, 2004 Session

                LEE ANN BRASWELL v. LESLIE GRAVES, ET AL.

                  A Direct Appeal from the Circuit Court for Shelby County
                  No. 007128-01-5 The Honorable Kay S. Robilio, Judge



                  No. W2004-00204-COA-R3-CV - Filed November 17, 2004


        Plaintiff/Appellant appeals from the trial court’s grant of Defendants/Appellees’ Tenn. R.
Civ. P. 12 Motion to Dismiss for failure to secure service of process. Finding that
Defendant/Appellees’ evidence clearly and convincingly rebuts the process server’s testimony, we
affirm.


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

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

John E. Dunlap of Memphis for Appellant, Lee Ann Braswell

Mark A. Lambert of Memphis for Appellees, Leslie Graves and Terry Graves

                                            OPINION

        On February 4, 1999, Lee Ann Braswell (“Plaintiff,” or “Appellant”) filed suit against Leslie
Graves and her father Terry Graves (together with Leslie Graves, “Defendants,” or “Appellees”) in
the Shelby County General Sessions Court. The matter was non-suited on December 4, 2000. At
that time, Leslie and Terry Graves lived at 3564 Central Avenue in Memphis. Both Defendants were
properly served in the General Sessions case prior to Ms. Braswell taking a non-suit.

       According to his testimony, on August 1, 2001, Terry Graves moved from the house at 3564
Central Avenue because he and his wife were contemplating a divorce. Leslie Graves had moved
from the Central Avenue residence sometime in January of 2001. On November 28, 2001, the case
was re-filed in the Circuit Court of Shelby County.1 Ms. Braswell employed Et Al Legal Services,
Inc., a private process serving company, to serve the summonses on the Defendants. On December
15, 2001, Richard Butler, an independent process server contracted by Et Al Legal Service,
attempted service at the last known address of the Defendants, which was 3564 Central Avenue.
Only Kathy Graves lived at the home on Central Avenue at that time. Mr. Butler testified that he
made personal service on both Terry and Leslie Graves on December 15, 2001. Mr. Butler also
testified that he filed affidavits of service of process with the Circuit Court. These affidavits were
not made part of the record on appeal. The Affidavit of Kathy Graves, which was filed in support
of Terry and Leslie Graves’ Tenn. R. Civ. P. 12 Motion to Dismiss (see infra) reads, in pertinent
part, as follows:

                 3. On August 6, 2001, I filed a Complaint for divorce against Terry
                 Graves. The Final Decree of Divorce was entered in my divorce case
                 on July 8, 2002. During the pendency of the divorce I lived in the
                 3564 Central Avenue home and neither Terry Graves nor Leslie
                 Graves lived with me in the Central Avenue home, including but not
                 limited to, December 15, 2001.

                 4. I did receive a copy of the Summons and Complaint filed in this
                 matter, styled Braswell v. Graves, Docket No. CT-007128-01 Div. 5,
                 from a process server on or about December 15, 2001.

                 5. Because I was involved in a divorce I called my lawyer and then
                 called Sam Blair regarding the Summons and Complaint. At a later
                 date Sam Blair personally picked up the Summons and Complaint for
                 me.

                 6. Neither Leslie Graves nor Terry Graves authorized me to accept
                 service of process on their behalf.

On January 22, 2002, attorney Sam Blair wrote a courtesy letter to Ms. Braswell’s attorney. The
letter reads, in pertinent part, as follows:

                 Dear Mr. Waggoner [attorney for Ms. Braswell]:

                         I represent [sic] Terry Graves initially in the above referenced
                 matter. Terry Graves was not served with process. He is in a divorce




        1
           The Complaint alleges negligence on the part of Leslie Graves arising from an automobile accident that
occurred in Shelby County on March 18, 1998. Terry Graves was sued as the owner of the vehicle that Leslie Graves
was driving.

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                   and the Complaint was left at his prior home and the wife forwarded
                   the Complaint to me. You need to re-serve your case.2

From the record, it appears that no additional service was attempted on either Terry Graves or Leslie
Graves in response to this letter.

        Terry and Leslie Graves did not respond to the Complaint and, on March 21, 2003, Ms.
Braswell filed a “Motion for Default Judgment.” On April 25, 2003, both Terry and Leslie Graves
filed separate Affidavits, by special appearance, in which they denied receiving service of the
Summons and Complaint in this matter. On August 27, 2003, Terry and Leslie Graves filed a Tenn.
R. Civ. P. 12 “Motion to Dismiss By Special Appearance.” The Motion, which was supported by
the Affidavit of Kathy Graves (see supra) stated that neither of the summonses were physically
served on Leslie or Terry Graves.

        A hearing was held on November 5, 2003. On November 12, 2003, the trial court entered
its “Order of Dismissal with Prejudice.” Ms. Braswell appeals and raises one issue for review as
stated in her brief: Whether the trial court erred in dismissing the Appellant’s Complaint for personal
injuries for failure to obtain personal service when the Circuit Court Clerk’s record contained
returned summonses and execution of process on each of the Appellees.

       Since this matter was heard by the trial court sitting without a jury, we review the case de
novo upon the record with a presumption of correctness of the findings of fact by the trial court.
Unless the evidence preponderates against the findings, we must affirm absent error of law. See
Tenn. R. App. P. 13(d).

         It is well settled that an officer’s return is prima facie evidence of proper service of process
and the oath of an interested party is legally insufficient to overcome the return. See Tenn. R. Civ.
P. 5.02; Royal Clothing Co. v. Holloway, 208 Tenn. 572, 574-75, 347 S.W.2d 491, 492 (1961);
Brake v. Kelly, 189 Tenn. 612, 620, 226 S.W.2d 1008, 1011 (1950); Cullum & Maxey Camping
Ctr., Inc. v. Adams, 640 S.W.2d 22, 24 (Tenn. Ct. App.1982). However, “the return of an officer
that he has executed process is of no higher grade of evidence than the other papers of the case which
came before [the court] as parts thereof; and if other parts of the...record either contradict the return
of the [process server] or render it doubtful whether the return is true, we are not bound to concede
to it absolute verity.” Wilson v. Moss, 54 Tenn. 417, 419-20 (Feb. 8, 1872). When disputing service
of process, the burden is upon the party complaining of the service to show by clear and convincing
proof that he or she was not served with process. See O.H. May Co. v. Gutman’s Inc., 2 Tenn. App.
43 (July 25, 1925). The “clear and convincing evidence” standard defies precise definition. Majors
v. Smith, 776 S.W.2d 538, 540 (Tenn. Ct. App.1989). While it is more exacting than the
preponderance of the evidence standard, Rentenbach Eng'g Co. v. General Realty Ltd., 707 S.W.2d
524, 527 (Tenn. Ct. App.1985), it does not require such certainty as the beyond a reasonable doubt
standard. Brandon v. Wright, 838 S.W.2d 532, 536 (Tenn. Ct. App.1992). Clear and convincing


        2
            This letter was attached as Exhibit 1 to the Affidavit of Terry Graves.

                                                           -3-
evidence eliminates any serious or substantial doubt concerning the correctness of the conclusions
to be drawn from the evidence. See Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n. 3
(Tenn.1992). It should produce in the fact-finder’s mind a firm belief or conviction with regard to
the truth of the allegations sought to be established. In re Estate of Armstrong, 859 S.W.2d 323, 328
(Tenn. Ct. App.1993); Wiltcher v. Bradley, 708 S.W.2d 407, 411 (Tenn. Ct. App.1985).

         Turning to the record in this case, we have only the testimony of Mr. Butler that service was
properly made on both Terry Graves and Leslie Graves. As noted above, neither the summonses nor
the returns were made part of the record on appeal. Both Terry Graves and Leslie Graves assert that
they were not served. In addition to the testimony adduced at the hearing, Terry and Leslie Graves
filed their own Affidavits, the Affidavit of Kathy Graves and the letter sent from Sam Blair to Gerald
Waggoner, see supra, to rebut Mr. Butler’s testimony.3

        Any conflict in testimony requiring a determination of the credibility of a witness or
witnesses is for the trial court and is binding on this Court unless from other real evidence we are
compelled to conclude to the contrary. State ex rel. Balsinger v. Town of Madisonville, 435 S.W.2d
803, 807 (Tenn. 1968) (emphasis added). As noted above, neither the summonses nor the affidavits
of service of process were made part of this record on appeal. Consequently, the following findings
by the trial court as to the credibility of Mr. Butler are given great weight by this Court:

                  THE COURT: All right. Mr. Butler is a very pleasant, genteel
                  individual of extremely senior years, 78 years old. He was halting of
                  speech, and his body language and presentation lead the Court to
                  believe that it is possible that perhaps his perceptions were
                  incorrect....

                  *                                        *                                 *

                  ...Coupled with the fact that the service that formerly employed him
                  [Mr. Butler] now does not do so, coupled with the fact that Mr.
                  Graves’ testimony as well as the letter from the attorney, the bulk of
                  the weight of the evidence is such that I believe it’s appropriate to
                  grant your petition.

         When Mr. Blair’s letter is viewed in the aggregate with the testimony of Terry Graves, the
affidavits of Kathy Graves, Leslie Graves, and Terry Graves, and the trial court’s specific findings
concerning the credibility of Mr. Butler, we find that there is clear and convincing evidence to
support the trial court’s finding that neither Terry Graves nor Leslie Graves were served with process
in this case.


         3
           Tenn. R. Civ. P. States that “[w]hen a motion is based on facts not appearing of record, the court may hear
the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or
partly on oral testimony or depositions.”

                                                          -4-
       For the foregoing reasons, we affirm the Order of the trial court. Costs of this appeal are
assessed against the Appellant, Lee Ann Braswell, and her surety.




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




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