Eaton v. Portera, No. W2007-02720-COA-R3-CV (Tenn. App. 11/21/2008), W2007-02720-COA-R3-CV.
| Decision Date | 21 November 2008 |
| Docket Number | No. W2007-02720-COA-R3-CV.,W2007-02720-COA-R3-CV. |
| Parties | DEBRA J. EATON v. STEPHEN G. PORTERA, M.D. |
| Court | Tennessee Court of Appeals |
Aaron L. Thomas, Memphis, TN, for Appellant.
Christopher L. Vescovo, Memphis, TN, for Appellee.
Casey Shannon, Memphis, TN, for Appellee.
J. Steven Stafford, J., delivered the opinion of the court, in which Alan E. Highers, P.J., W.S., and David R. Farmer, J., joined.
This is a medical malpractice case. The trial court granted summary judgment in favor of Appellee doctor on grounds of insufficient service of process, and failure of Appellant patient to come forward with the required expert proof to refute the motion for summary judgment. Finding no error, we affirm.
In May 2005, Appellant Debra J. Eaton was referred to Appellee Stephen G. Portera, M.D. after being diagnosed with severe pelvic floor dysfunction. Dr. Portera is a licensed physician, specializing in urogynecology. On May 31, 2005, Dr. Portera performed surgery on Ms. Eaton. The surgery included a pubovaginal sling, anterior repair, posterior repair with grafts, and cystoscopy. Following the surgery, Ms. Eaton developed some scar tissue on the left vaginal wall. On August 17, 2005, Dr. Portera performed a procedure to remove the scar tissue. An October 7, 2005 exam showed normal vaginal tissue; at that time, Ms. Eaton's sole complaint was some pain associated with intercourse.
On May 30, 2006, Ms. Eaton filed a complaint against Dr. Portera, alleging medical malpractice arising from the May 31, 2005 surgery. Specifically, Ms. Eaton asserts that, as a result of Dr. Portera's alleged negligence, she suffered On or about June 19, 2006, a Shelby County deputy sheriff attempted to serve the complaint and summons on Dr. Portera. The return indicates that the complaint and summons were served on "Lamonda Robinson, pt care ast." On October 19, 2006, Dr. Portera filed his answer, in which he denies the material allegations of the complaint and raises, as affirmative defenses, insufficiency of process and insufficiency of service of process.
On August 10, 2007, Dr. Portera filed a motion for summary judgment, along with his affidavit and Tenn. R. Civ. P. 56.03 statement of undisputed material facts in support thereof. Dr. Portera's motion is predicated on two grounds: (1) Ms. Eaton's alleged failure to provide competent expert testimony to dispute the affidavit of Dr. Portera; and (2) Ms. Eaton's alleged failure to obtain service of process on Dr. Portera. Ms. Eaton filed a memorandum in opposition to the motion for summary judgment on October 23, 2007.
The motion for summary judgment was heard on November 2, 2007. On November 20, 2007, the court entered an order granting Dr. Portera's motion for summary judgment. Specifically, the trial court held that "[Ms. Eaton] has not supported the allegations of medical negligence and causation with competent expert testimony and therefore has not complied with Tenn. Code Ann. §29-26-115." The court further held that "[Dr. Portera] was not sufficiently served with process pursuant to Tennessee Rule of Civil Procedure 4.04(1).".
Ms. Eaton appeals and raises three issues for review as stated in her brief:.
1. Did the Circuit Court err in granting summary judgment to Defendant-Appellee Dr. Portera, when it ruled that Dr. Portera did not waive the defense of insufficiency of service of process by his failure to timely plead that defense with the requisite specificity?.
2. Did the Circuit Court err in granting summary judgment to Defendant-Appellee Dr. Portera, when it ruled that Dr. Portera was not served in accordance with Rule 4.04(1) which allows service on an individual's authorized agent?.
3. Did the Circuit Court err in granting summary judgment to Defendant-Appellee Dr. Portera, when it denied Plaintiff-Appellant's request for additional time to procure expert testimony in opposition to Defendant's motion for summary judgment—when it would have been unreasonable for Plaintiff to have procured expensive expert testimony to support her complaint while Defendant's motion to dismiss the complaint for "insufficiency of process" was still pending?.
It is well settled that a motion for summary judgment should be granted when the movant demonstrates that there are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law. See Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the burden of demonstrating that no genuine issue of material fact exists. See Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.1997). On a motion for summary judgment, the court must take the strongest legitimate view of evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that party, and discard all countervailing evidence. See id. In Byrd v. Hall, 847 S.W.2d 208 (Tenn.1993), our Supreme Court stated:.
Once it is shown by the moving party that there is no genuine issue of material fact, the nonmoving party must then demonstrate, by affidavits or discovery material, that there is a genuine, material fact dispute to warrant a trial. In this regard, Rule 56.05 provides that the nonmoving party cannot simply rely upon his pleadings but must set forth specific facts showing that there is a genuine issue of material fact for trial.
Id. at 211 (citations omitted).
Summary judgment is only appropriate when the facts and the legal conclusions drawn from the facts reasonably permit only one conclusion. See Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.1995). Here, the material facts are undisputed. Because only questions of law are involved, there is no presumption of correctness regarding a trial court's grant or denial of summary judgment. See Bain, 926 S.W.2d at 622. Therefore, our review of the trial court's grant of summary judgment is de novo on the record before this Court. See Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn.1997).
Service of process on an individual defendant is governed by Tenn. R. Civ. P. 4.04(1), which states:.
The plaintiff shall furnish the person making the service with such copies of the summons and complaint as are necessary. Service shall be made as follows:.
(1) Upon an individual other than an unmarried infant or an incompetent person, by delivering a copy of the summons and of the complaint to the individual personally, or if he or she evades or attempts to evade service, by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, whose name shall appear on the proof of service, or by delivering the copies to an agent authorized by appointment or by law to receive service on behalf of the individual served.
Insufficiency of service of process is one of six affirmative defenses that, under Tenn. R. Civ. P. 12.02, must be set forth either in the defendant's answer or by motion made before the filing of an answer. Tenn. R. Civ. P. 8.03 requires defendants to "set forth affirmative facts in short and plain terms." Failure to comply with Tenn. R. Civ. P. 8.03 "constitutes a waiver of the matter."See, e.g., Barker v. Heenkin Can, 804 S.W.2d 442, 444 (Tenn. 1991). Ms. Eaton first contends that Dr. Portera failed to comply with Tenn. R. Civ. P. 8.03 and, thus, failed to preserve the affirmative defense of failure of service of process for appeal. We disagree. In State ex rel. Berger v. Huntsville, 63 S.W.3d 397, 399 (Tenn. Ct. App. 2001), this Court held that "once this defense [i.e., insufficiency of service of process] is raised, any other participation in the lawsuit by the defendant does not constitute a waiver." In his first affirmative defense, Dr. Portera specifically "asserts the defense of insufficiency of process and insufficiency of service of process in that he was never served with the Complaint pursuant to the Rules of Civil Procedure and Tennessee law." Moreover, Dr. Portera states that he is "specifically reserv[ing] this defense and is not waiving the defense by filing this Answer." We find that the language used by Dr. Portera in asserting this defense was sufficient to put Ms. Eaton on notice of Dr. Eaton's allegation that he was not properly served in this matter. Furthermore, although Tennessee law specifically allows a defendant to continue participation in a case without waiving the defense of insufficiency of service of process once it has been raised, Berger, 63 S.W.3d at 399, Dr. Portera specifically states that he is not waiving the defense in filing his answer or, otherwise, by participating in his defense of Ms. Eaton's complaint. Having determined that Dr. Portera did not waive this defense, we now turn to the record to determine whether proper service was made in this case.
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, 347 S.W.2d 491, 492 (Tenn. 1961). 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 its absolute verity." Wilson v. Moss, 54 Tenn. 417, 419-20 (Feb. 8, 1872).
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