               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs April 11, 2006

             WILLIAM H. STITTS v. CLIFFORD K. McGOWN, JR.

                      Appeal from the Circuit Court for Johnson County
                        No. W2700      Thomas J. Seeley, Jr., Judge



                    No. E2005-02496-COA-R3-CV - FILED MAY 2, 2006


The issue presented in this case is whether the trial court erred in dismissing with prejudice, on its
own motion, a lawsuit alleging legal malpractice in which a summons was issued but never served
on the defendant, and not reissued within one year. After careful review, we hold that the trial court
did not err in dismissing the complaint. We affirm the judgment of the trial court.


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

SHARON G. LEE, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P. J., and
CHARLES D. SUSANO , JR., J., joined.

William H. Stitts, Nashville, Tennessee, Pro Se Appellant.

Clifford K. McGown, Jr., Waverly, Tennessee, for Appellee, Clifford K. McGown, Jr.




                                            OPINION

                             I. Factual and Procedural Background

       William H. Stitts was convicted by a Madison County jury of two counts of robbery. He was
sentenced on each count to ten years incarceration to be served consecutively to one another and
consecutively to sentences for previous unrelated convictions. Attorney Clifford K. McGown Jr. was
appointed to represent Mr. Stitts in the appeal of his criminal convictions. The appeal was not
successful and on February 24, 2004, the Court of Criminal Appeals issued an opinion affirming the
judgment of the trial court. State v. William Herbert Stitts, No. W2002-01903-CCA-R3-CD, 2004
WL 345509 (Tenn. Crim. App., W.S., Feb. 24, 2004) (Tenn. R. App. P. 11 application denied, June
21, 2004).
        On April 30, 2004, Mr. Stitts sued Mr. McGown in the Wayne County Circuit Court for legal
malpractice. On the same day the lawsuit was filed, the court clerk issued a summons to Mr.
McGown and sent it to the Sheriff’s Department for service. However, the summons was never
returned or served on Mr. McGown. After Mr. Stitts filed a motion for default judgment on June
18, 2004, Mr. McGown filed a special appearance in which he alleged that he had not been served
with process as provided for in the Tennessee Rules of Civil Procedure and that a default judgment
was not appropriate. In response, Mr. Stitts stated, inter alia, that process was issued on April 30,
2004; that it was inconceivable that Mr. McGown had not been served; and that Mr. McGown knew
of the lawsuit.

         In the interim, the Wayne County trial court transferred the case to the Johnson County
Circuit Court, based on its finding that jurisdiction to hear the matter was properly in Johnson
County. On March 15, 2005, Mr. Stitts filed another motion for default judgment and notice of
hearing in the Johnson County Circuit Court. Mr. McGown again filed a limited appearance, stating,
inter alia, that after the lawsuit had been filed in Wayne County, he received a copy of it in the mail
from the court clerk, but that he had never been served with process pursuant to the Rules of Civil
Procedure and that a default judgment was not appropriate. Upon finding that Mr. McGown had not
been served with process, the trial court on June 6, 2005, denied the motion for default judgment.
The trial court additionally noted that it did not appear that Mr. Stitts had reissued process as
required by Tenn. R. Civ. P. 3, and if process had been reissued before April 30, 2005, then Mr.
Stitts should file proof of same with the court immediately. The order further provided that if Mr.
Stitts failed to show such proof, the complaint would be dismissed with prejudice. In response, Mr.
Stitts filed a copy of the summons issued on April 30, 2004. Subsequently, on September 22, 2005,
the trial court dismissed the complaint with prejudice after finding that Mr. Stitts had not shown that
process was reissued prior to April 30, 2005. Mr. Stitts then filed a motion to alter or amend,
arguing that he had filed the copy of the summons issued by the court clerk on April 30, 2004,
which, according to Mr. Stitts, proved that Mr. McGown was served on that same date. After his
motion was denied by the trial court, Mr. Stitts filed this appeal.


                           II. Issue Presented and Standard of Review

        Our task is confined to reviewing the record to determine whether the trial court erred in
dismissing Mr. Stitts’ case against his former attorney. Since we are presented with a pure question
of law and there are no disputed facts, we will make an independent review of the record without
any presumption of correctness. King v. Pope, 91 S.W. 3d 314, 318 (Tenn. 2002).




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                                     III. Dismissal of the Claim

                                        A. Service of Process

        A lawsuit is commenced upon the filing of a complaint with the court clerk. Tenn. R. Civ.
P. 3. The next step in the proceeding is the issuance of a summons by the court clerk and the
delivery of it with necessary copies of the complaint to any person authorized to serve process.
Tenn. R. Civ. P. 4.01. A summons is basically a formal written notice to the defendant to appear and
to answer the plaintiff’s complaint. Woods v. World Truck Transfer, Inc., No. M1997-00068-COA-
R3-CV, 1999 WL 1086462 (Tenn. Ct. App., M.S., Dec. 3, 1999). Because the trial court’s
jurisdiction of the parties is acquired by service of process, proper service is an essential step in the
proceeding. Haley v. University of Tennessee-Knoxville, No. M2005-00998-SC-R23-CQ, 2006 WL
669341 (Tenn., Mar. 17, 2006).

        A defendant may waive service of process, Tenn. R. Civ. P. 4.07, but if he does not, then
process must be served on the defendant who is within the state by either personal service or by mail.
Tenn R. Civ. P. 4.03. Service of process by mail is not accomplished by simply mailing the
defendant a copy of the complaint. Toler v. City of Cookeville, 952 S.W.2d 831 (Tenn. Ct. App.
1997). It takes much more. To serve a defendant by mail, the plaintiff, the plaintiff’s attorney or
other authorized person for service by mail, must send to the defendant, postage prepaid, a certified
copy of the summons and a copy of the complaint by registered return receipt or certified return
receipt mail. To be effective, service by mail requires filing with the court clerk the following three
items: a) the original summons, endorsed as set forth in the rule; b) an affidavit of the person
making service, setting forth the person’s compliance with the requirement of Rule 4.03; and c) the
return receipt. Tenn. R. Civ. P. 4.03, 4.04. A default judgment cannot be entered where there has
been service by mail unless the record contains a return receipt showing personal acceptance by the
defendant or by persons designated by Rule 4.04 or by statute. Tenn. R. Civ. P. 4.04 (10).

        In this case, Mr. Stitts commenced his lawsuit by filing with the court clerk the complaint
against Mr. McGown. The court clerk then sent the complaint and summons to the Sheriff’s
Department for service on Mr. McGown. The summons, however, was never served on the
defendant. This is the fatal flaw in plaintiff’s case, as the trial court never obtained in personam
jurisdiction over Mr. McGown. In his special appearances and responses to the two motions for
default judgment, Mr. McGown made it evident that he had never been served with process.

        Mr. Stitts confuses the “issuance” of a summons with “service” of a summons, arguing that
Mr. McGown was served because a summons was issued. However, issuance of summons does not
suffice for service on the defendant. Mr. Stitts also contends that Mr. McGown received a copy of
the complaint in the mail from the clerk. However, mere receipt of a complaint in the mail does not
comply with the requirements of Tenn. R. Civ. P. 4 and, therefore, does not suffice for proper
service. Mr. Stitts further asserts that Mr. McGown knew about the lawsuit. While we have no
doubt that he did, again, this does not suffice for service of process.



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                B. Sua Sponte Dismissal and Effect of Failure to Reissue Summons

         The trial court dismissed the case on its own motion after Mr. Stitts failed to show that he
had reissued service of process to Mr. McGown before April 30, 2005. The significance of this date
is that the summons was first issued by the court clerk on April 30, 2004. If process is not served
within 30 days of issuance,1 regardless of the reason, then the plaintiff cannot rely upon the original
commencement to toll the running of the statute of limitations unless the plaintiff continues the
action by obtaining issuance of new process within one year from issuance of the previous process.
Tenn. R. Civ. P. 3. The summons issued on April 30, 2004, was not served on Mr. McGown within
30 days of its issuance. To rely on the original filing of the lawsuit to toll the running of the one-year
statute of limitations on the legal malpractice claim, Mr. Stitts was required to have process reissued
within one year from April 30, 2004. Because Mr. Stitts failed to have the summons reissued within
one year of the issuance of the original summons, his legal malpractice claim was barred. Slone v.
Mitchell, No. E2005-00842-COA-R3-CV, 2005 WL 3533276 (Tenn. Ct. App., E.S., Dec. 27, 2005).

        A trial court in Tennessee has the express authority to dismiss a case with prejudice on its
own motion in three instances: if the plaintiff fails to prosecute the case, or fails to comply with the
rules of procedure, or fails to comply with an order of the court. While Tenn. R. Civ. P. 41.02 (1)
specifically authorizes only a defendant to move for dismissal, the rule has been construed to allow
trial courts to dismiss an action on the court’s own motion for the three specific reasons noted.
Harris v. Baptist Memorial Hospital, 574 S.W.2d 730, 731 (Tenn. 1978), Thompson v. Dickerson,
No. 02A01-9702-CV-00034, 1997 WL 437228 (Tenn. Ct. App., W.S., Aug. 1,1997), Hanna v.
Gaylord Entertainment Company, No. M2004-00413-WC-R3-WC, 2006 Tenn. LEXIS 247 (Mar.
29, 2006).

        A dismissal of a case pursuant to Tenn. R. Civ. 41.02 is discretionary. Accordingly, our
review is confined to determining whether the trial court’s dismissal of the action was unreasonable,
arbitrary or unconscionable. Stalsworth v. Grummon, No. M2000-02352-COA-R3-CV, 2001 WL
513885 (Tenn. Ct. App., M.S., May 15, 2001). After careful review, we do not find that the trial
court abused its discretion in this matter.


                                                IV. Conclusion

        It appears that Mr. Stitts, who represents himself, does not understand the significance and
necessity of service of process on Mr. McGown. Mr. Stitts, who is not only a pro se litigant but also
an incarcerated one, is entitled to fair and equal treatment by the courts. Whitaker v. Whirlpool
Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000). We are and should be mindful of the fact that
Mr. Stitts, like many pro se litigants, is likely untrained in the law and unfamiliar with the judicial
system. Irvin v. City of Clarksville, 767 S.W.2d 649, 652 (Tenn. Ct. App. 1988). We should and


        1
          Tenn. R. Civ. P. 3 was amended by order entered January 6, 2005, effective July 1, 2005, increasing the
time for service of a summons from 30 to 90 days.

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do give pro se litigants some leeway in the drafting of their pleadings and briefs, Whitaker, 32 S.W.
3d at 227, and measure the papers prepared by pro se litigants using standards that are less stringent
than those applied to documents prepared by lawyers. Winchester v. Little, 996 S.W. 2d 818, 824
(Tenn. Ct. App. 1998). However, we cannot excuse pro se litigants from complying with the same
substantive and procedural rules as represented parties. Edmundson v. Pratt, 945 S.W.2d 754,755
(Tenn. Ct. App. 1996). Mr. Stitts, like any other plaintiff in a civil proceeding, had an obligation to
see to it that process was served in a manner consistent with the Tennessee Rules of Civil Procedure.
Hessmer v. Hessmer, 138 S.W.3d 901, 904 (Tenn. Ct. App. 2003). Plaintiff’s representation of
himself, without an adequate knowledge of the rules of procedure, doomed his case to failure.

        Mr. Stitts was required to comply with the Tennessee Rules of Civil Procedure, and he failed
to do so. Accordingly, the trial court did not err when it dismissed Mr. Stitts’ claim against Mr.
McGown. The judgment of the trial court is affirmed. Costs are taxed to Mr. Stitts.




                                       _________________________________________
                                                   SHARON G. LEE, JUDGE




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