Toler v. City of Cookeville

• Citation: 952 S.W.2d 831
• Parties: Nathan Jack TOLER, a minor child, b/n/f Shirley Lack and Shirley Lack, next of kin and as Administratrix of the Estate of Nathan Jack Toler, Jr., Plaintiffs/Appellants, v. CITY OF COOKEVILLE, d/b/a Cookeville General Hospital, National Emergency Systems, Inc., d/b/a/ "NES", and Mark Giese, D.O., Individually, and Ray Fuller, M.D., M.D. Individually, and Baptist Convenient Care East, P.C., d/b/a/ Baptist Convenient Care Centers, Inc., Defendants/Appellees.
• Decision Date: 05 February 1997
• Court: Court of Appeals of Tennessee

Page 831

952 S.W.2d 831

Nathan Jack TOLER, a minor child, b/n/f Shirley Lack and Shirley Lack, next of kin and as Administratrix of the Estate of Nathan Jack Toler, Jr Plaintiffs/Appellants, v. CITY OF COOKEVILLE, d/b/a Cookeville General Hospital National Emergency Systems, Inc., d/b/a/ "NES", and Mark Giese, D.O., Individually, and Ray Fuller, M.D., M.D. Individually, and Baptist Convenient Care East, P.C., d/b/a/ Baptist Convenient Care Centers, Inc., Defendants/Appellees.

Court of Appeals of Tennessee Middle Section, at Nashville.

Feb. 5, 1997.

Permission to Appeal Denied

by Supreme Court July 14, 1997.

Helen S. Rogers, Nashville, Larry L. Crain, Brentwood, for Plaintiffs/Appellants.

Darrell G. Townsend, Derrick C. Smith, Howell & Fisher, Nashville, for Defendants/Appellees.

LEWIS, Judge.

OPINION

Appellee, Dr. Mark Giese, is one of several defendants involved in a medical malpractice suit arising out of the alleged wrongful death of Nathan Jackson Toler, Jr. The trial court entered an interlocutory order granting summary judgment to Dr. Giese based upon the plaintiffs' failure to properly secure service of process on him. Pursuant to Tenn. R. App. P. 9, Plaintiffs have appealed. We have determined that the trial court was correct and therefore affirm the grant of summary judgment.

After Mr. Toler's death in March of 1994, on 20 September 1994 the plaintiffs filed the instant complaint. On 30 September 1994, Alan Gentry, a paralegal from the plaintiffs' attorney's law firm attempted to serve the defendant, Dr. Giese, at 939 General George Patton Road in Nashville. The Return of Summons reflected the following language: "Defendant evading service. Defendant in condo and would not open door. Left copy of Summons/Complaint taped to door of condo."

Plaintiffs' first amended complaint was sent to Dr. Giese's counsel Darrell Townsend at his office on 8 November 1994. Plaintiffs' second amended complaint was sent to Dr. Giese at the General George Patton address on 24 May 1995 as well as to his attorney. On 12 June 1995, Dr. Giese answered asserting as an affirmative defense that he had not been served with process and thus recovery was barred. On 11 August 1995, Dr. Giese filed sworn Answers to Interrogatories listing his address as "3137 Parthenon Avenue, No. 5, Nashville, Tennessee 37203."

On 8 March 1996, Dr. Giese filed a motion for summary judgment asserting that he had not been served with process and that the suit against him was barred by the statute of limitations. In support of this motion, Dr. Giese submitted an affidavit stating that he did not reside at the General George Patton address on 30 September 1994, nor had he resided there since April of 1994. The affidavit contains a discrepancy in the address in dispute mentioning it first as 939 General George Patton Road and then sentences later, as 933 General George Patton Road. No supporting documentation such as a lease or a change of address form was given.

In response to Dr. Giese's motion, Plaintiffs submitted the affidavit of Mr. Gentry which sets forth his account of locating Defendant and serving the summons. Mr. Gentry claims that after finding Dr. Giese's phone number and General George Patton Road address in the 1994 Nashville phone book, he repeatedly attempted to call the number without success. He then verified the address with the Tennessee Department of Health Osteopath Division and with the Tennessee Department of Safety. In a final attempt to substantiate this address, Mr. Gentry mailed to the address an estate planning questionnaire from his law firm with an address correction request directed to the United States postal authorities. The questionnaire was never returned nor was a forwarding address sent by the postal authorities.

Mr. Gentry claims that from 24 September through 30 September of 1994, he made many attempts to serve Dr. Giese at the General George Patton Road address. He stated that he, "could tell someone was inside the condominium, but no one would ever answer the door." A neighbor informed Mr. Gentry that Dr. Giese did live there and Mr. Gentry could see mail addressed to Dr. Giese. On 30 September 1994, Mr. Gentry saw a man fitting the description he had been given of Dr. Giese exit the condo's back door and pick up the newspaper. When he shouted, "Dr. Giese, I need to speak with you a minute," the man ran back into the condominium and shut the door. Though Mr. Gentry knocked, the man would not answer. As stated above, Mr. Gentry then left a copy of the summons and complaint on the door. In addition, Mr. Gentry mailed copies of the summons and complaint, first class postage attached with return address requested, to Dr. Giese at the same address. These documents were not returned to the law firm.

In light of the arguments of counsel and the affidavits of Mr. Gentry and Dr. Giese, the trial court found that the plaintiffs failed to properly secure service of process upon Dr. Giese under Tenn. R. Civ. P. 4.04 and failed to renew the process within the time allotted under Tenn. R. Civ. P. 3 to prevent the running of the statute of limitations. Here, the plaintiffs argue that the trial court erred in granting summary judgment to Dr. Giese based solely on his own self-serving affidavit that he was not personally served when all of his actions and those of his counsel in generally appearing and participating in the lawsuit for over ten months show his actual receipt of the complaint and all claims asserted by Plaintiffs.

Tenn.R.Civ.P. 56.03 provides that summary judgment is appropriate when two prerequisites are met. First, there must be no genuine issue as to any fact necessary to resolve the substantive claim or defense embodied in the summary judgment motion, Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn.1993), and second, the moving party must be entitled to a judgment as a matter of law. Mansfield v. Colonial Freight Sys., 862 S.W.2d 527, 530 (Tenn.App.1993). The legal principles which guide an appellate court's review of a trial court's grant of a motion for summary judgment are well settled. Because the trial court's decision involves only a question of law, there is no presumption of correctness attached to this decision. Hembree v. State, 925 S.W.2d 513, 515 (Tenn.1996). The appellate court need only review the record to determine whether the requirements of Tenn.R.Civ.P. 56 have been met. Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.1995). In so doing, a court should view the evidence in the light most favorable to the nonmoving party, allow all reasonable inferences in favor of that party, and discard all countervailing evidence. Id. (citing Byrd, 847 S.W.2d at 210-11). Summary judgment should be granted if the facts and conclusions permit a reasonable person to reach only one conclusion. McCall v. Wilder, 913 S.W.2d 150, 152 (Tenn.1995).

I.

Though the thrust of Plaintiffs' argument is that Defendant waived any objection to defects in the service of process, Plaintiffs also assert that, under the circumstances, taping the summons and complaint to the condo door constituted valid service. The Rules of Civil Procedure govern the service of process, both personal and by mail. Thus, we turn first to the pertinent provisions of the Rules in determining whether the defendant was properly served. Rule 4.04 provides the following with regard to personal service:

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.

Viewing the evidence in a light most favorable to the plaintiffs, it is clear that the defendant, Dr. Giese, was not served in compliance with Rule 4.04(1). The sole affidavit presented by the plaintiffs establishes that the plaintiffs, through Mr. Gentry, left the appropriate papers on the doorstep and therefore failed to personally serve Dr. Giese "by delivering a copy of the summons and of the complaint to [him] personally." Id. If we infer from Mr. Gentry's affidavit that Dr. Giese was living in the condo at General George Patton Road and that he was the man who ran into the home when approached by Mr. Gentry, we would conclude that Dr. Giese was attempting to evade service of process. In that case, service in compliance with Rule 4.04 would mean "leaving copies thereof at [Dr. Giese's] dwelling house or usual place of abode with some person of suitable age and discretion then residing therein." Id. While it is perhaps reasonable to infer from Mr. Gentry's affidavit that 939 General George Patton Road was the defendant's "dwelling house," the "Return on Service of Summons" as well as Mr. Gentry's testimony in his affidavit evidence that he merely taped a copy of the summons and complaint to the door failing to leave these documents with a person.

In Wachovia Bank Card Servs. v. Overton, No. 03A01-9510-CV-00373, 1996 WL 64004 (Tenn.App.1996), this court held that service under very similar circumstances did not comply with Rule 4.04. In that case, the process server went to the defendant's home where lights were on and the door was cracked. A car with a license tag that was registered to the defendant was in the driveway; however, no one answered the door. The process server said that "[he] attached the Warrant and [his] card to the front screen door and said [Defendant] you have been served by Evading Service." Id. at In holding...