Hart v. Memphis Light Gas & Water Div.
| Decision Date | 13 December 2018 |
| Docket Number | No. W2018-00254-COA-R3-CV,W2018-00254-COA-R3-CV |
| Parties | DEBORAH HART v. MEMPHIS LIGHT GAS & WATER DIVISION |
| Court | Tennessee Court of Appeals |
Appeal from the Circuit Court for Shelby County
The parties dispute whether, under Tennessee Code Annotated section 16-15-710, the applicable statute of limitations was tolled by service of process when no proof of service was returned to the court as required under Tennessee Code Annotated section 16-15-902(a). Under the holding in Fair v. Cochran, 418 S.W.3d 542 (Tenn. 2013), we conclude, as did the trial court, that Appellee's failure to make return to the court did not, ipso facto, constitute a lack of service of process such that the statute of limitations expired. Affirmed and remanded.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and Remanded
KENNY ARMSTRONG, J., delivered the opinion of the court, in which RICHARD H. DINKINS and ARNOLD B. GOLDIN, JJ., joined.
Sean A. Hunt, Memphis, Tennessee, for the appellant, Memphis Light, Gas, & Water Division.
Thomas R. Greer, R. Sadler Bailey, and Vance Montgomery, Memphis, Tennessee, for the appellee, Deborah Hart.
This case arises from a car accident that occurred on March 16, 2009. Appellee Deborah Hart's vehicle was struck by a vehicle owned and operated by Appellant Memphis Light, Gas, and Water Division ("MLGW"). Ms. Hart's original attorney, Bradley Ball, filed a civil warrant in the general sessions court on March 12, 2010. On March 13, 2010, Mr. Ball served MLGW by certified mail. In the trial court, Mr. Ball stated that the certified mail receipt was returned to him properly executed. At this point, a dispute of fact arose. Mr. Ball alleges that he made return of service to the general sessions court clerk's office. This return, however, was not found. Mr. Ball claims that the clerk's office misplaced it; MLGW claims that Mr. Ball never made the return. For reasons which are unclear, the case was not initially docketed by the clerk's office. However, MLGW's attorney appeared before the general sessions court on September 10, 2010, which was the date placed on the original civil warrant when the case was filed. At a later hearing before the general sessions court, Appellant's original attorney, Ms. Cozart, admitted that Appellant was, in fact, served with process. There is no transcript of the general sessions court proceedings. On or about April 24, 2015, MLGW filed a motion to dismiss due to the lack of proof of return of service in the court's file. Thereafter, on April 27, 2015, Mr. Ball took a defense verdict and then filed an appeal to the circuit court that same day.
In the circuit court, MLGW again filed a motion to dismiss on the ground that Mr. Ball's failure to make a return on the service of process negated proper service and resulted in the expiration of the statute of limitations. At the hearing on the motion, Mr. Ball testified that he served the Appellant by certified mail in March 2010 and made return to the general sessions court clerk. Mr. Ball further testified that MLGW's original attorney, Ms. Cozart, admitted, during a general sessions court appearance, that MLGW received service by certified mail. MLGW did not call Ms. Cozart as a witness, nor did it put on any other countervailing proof to challenge Mr. Ball's testimony. The circuit court denied MLGW's motion finding that Mr. Ball's testimony was credible and that the statute of limitations had not expired. MLGW's request for interlocutory appeal was denied, and the case proceeded to trial on January 18, 2018. The trial court ultimately entered judgment for $155,084.77 in favor of Ms. Hart. MLGW appeals.
The sole issue for review is whether the trial court erred in finding that the failure to make return on the service of process did not constitute insufficient service of process resulting in the expiration of the statute of limitations.
Because this case was tried by the court, sitting without a jury, this Court conducts a de novo review of the trial court's decision with a presumption of correctness as to the trial court's findings of fact, unless the evidence preponderates against those findings. Wood v. Starko, 197 S.W.3d 255, 257 (Tenn. Ct. App. 2006). For the evidence to preponderate against a trial court's finding of fact, it must support another finding of fact with greater convincing effect. Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000); The Realty Shop, Inc. v. R.R. Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App. 1999). This Court reviews the trial court's resolution of legal issues without a presumption of correctness. Johnson v. Johnson, 37 S.W.3d 892, 894 (Tenn. 2001).
As noted below, the trial court made a specific finding that Mr. Ball was a credible witness. The weight, faith, and credit to be given witnesses' testimony lies in the first instance with the trial court. Roberts v. Roberts, 827 S.W.2d 788, 795 (Tenn. Ct. App. 1991). With regard to credibility determinations, this Court has stated:
When a trial court has seen and heard witnesses, especially where issues of credibility and weight of oral testimony are involved, considerable deference must be accorded to the trial court's factual findings. Further, "[o]n an issue which hinges on the credibility of witnesses, the trial court will not be reversed unless there is found in the record clear, concrete, and convincing evidence other than the oral testimony of witnesses which contradict the trial court's findings."
In re M.L.P., 228 S.W.3d 139, 143 (Tenn. Ct. App. 2007) (citing Seals v. England/Corsair Upholstery Mfg. Co., Inc., 984 S.W.2d 912, 915 (Tenn. 1999)); In re Estate of Leath, 294 S.W.3d 571, 574-75 (Tenn. Ct. App. 2008). Accordingly, where issues of credibility and weight of testimony are involved, this Court will accord considerable deference to the trial court's factual findings. In re M.L.P., 228 S.W.3d 139, 143 (Tenn. Ct. App. 2007) (citing Seals v. England/Corsair Upholstery Mfg. Co., 984 S.W.2d 912, 915 (Tenn. 1999)).
Furthermore, to the extent that the issue requires a review of statutory construction and interpretation, it presents a question of law, which we review de novo without a presumption of correctness. See Cunningham v. Williamson Cnty. Hosp. Dist., 405 S.W.3d 41, 43 (Tenn. 2013) (citing Mills v. Fulmarque, Inc., 360 S.W.3d 362, 366 (Tenn. 2012)); Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 308 (Tenn. 2012); Estate of French v. Stratford House, 333 S.W.3d 546, 554 (Tenn. 2011). Our Supreme Court has summarized the principles involved in reviewing statutory construction as follows:
Our consideration of a question of statutory construction is without any deference to the trial court. See In re Estate of Tanner, 295 S.W.3d 610, 613 (Tenn. 2009). When addressing the interpretation of a statute, well-defined precepts apply. Colonial Pipeline, [Co. v. Morgan,] 263 S.W.3d [827,] at 836 [(Tenn. 2008)]. "Our primary objective ... is to carry out the intent of the legislature without unduly broadening or restricting the statute." Nichols [v. Jack Cooper Transport Co.,] 318 S.W.3d [354,] at 359-60 [(Tenn. 2010)]. When a statute is clear, we apply the plain meaning without complicating the task, and simply enforce the written language. Abels ex rel. Hunt v. Genie Indus., Inc., 202 S.W.3d 99, 101-[1]02 (Tenn. 2006) (quoting Calaway ex rel. Calaway v. Schucker, 193 S.W.3d 509, 516 (Tenn. 2005)). When a statute is ambiguous, however, we may refer to the broader statutory scheme, the history of the legislation, or other sourcesto discern its meaning. Colonial Pipeline, 263 S.W.3d at 836. Further, courts must presume that our General Assembly was aware of its prior enactments and knew the state of the law at the time the legislation was passed. Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995).
Mansell v. Bridgestone Firestone N. Am. Tire, LLC, 417 S.W.3d 393, 400 (Tenn. 2013). With the foregoing principles in mind, we turn to the issue.
The crux of MLGW's appellate argument is that Ms. Hart's attorney, Mr. Ball, did not comply with the requirements of Tennessee Code Annotated section 16-15-902 concerning service of process in the general sessions court. The statute provides, in relevant part, that "[a]ny person serving the process from the general sessions court shall promptly and within the time during which the person is served must respond, make proof of service to the court . . . ." Tenn. Code Ann. § 16-15-902(a). Specifically, MLGW contends that Mr. Ball failed to "make proof of service" to the general sessions court clerk after MLGW was served by certified mail. Arguing that making proof of service to the court is mandatory to achieve proper service, MLGW contends that it was never properly served. Accordingly, MLGW contends that, in order to toll the applicable statute of limitations, Ms. Hart was required to comply with Tennessee Code Annotated section 16-15-710, which provides:
The suing out of a warrant is the commencement of a civil action within the meaning of this title, whether it is served or not; but if the process is returned unserved, plaintiff, if plaintiff wishes to rely on the original commencement as a bar to the running of a statute of limitations, must either prosecute and continue the action by applying for and obtaining new process from time to time, each new process to be obtained within nine (9) months from return unserved of the previous process, or plaintiff must recommence the action within one (1) year after the return of the initial process not served.
It is undisputed that Ms. Hart did not follow the procedure set out in section 16-15-710 for unserved process. Rather, Ms. Hart relied on the original commencement of the action in general sessions court to toll the statute of limitations. In the first instance, the plain language of section 16-15-710 outlines the mechanisms for preserving...
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