Watson v. Garza
| Decision Date | 07 November 2008 |
| Docket Number | No. W2007-02480-COA-R3-CV.,W2007-02480-COA-R3-CV. |
| Citation | 316 S.W.3d 589 |
| Parties | Ronald WATSONv.Roberto GARZA, et al. |
| Court | Tennessee Court of Appeals |
COPYRIGHT MATERIAL OMITTED
Glenn K. Vines, Jr., Memphis, TN, for Appellant.
R. Dale Thomas, Jesse D. Nelson, Jackson, TN, for Appellee.
This appeal involves a motion to dismiss for insufficient service of process. The summons issued for service on the defendant-appellee was served by the deputy sheriff on a co-defendant. The trial court granted the defendant-appellee's motion to dismiss. We affirm.
Ronald Watson (“Plaintiff”) and Roberto Garza, Jr., (“Defendant Garza”) were involved in an automobile accident on November 19, 2004. Defendant Garza was driving a semi-tractor truck owned by Jimmy Harber, and leased to Allon Delivery, LLC. On November 1, 2005, Plaintiff filed this action against Defendant Garza, Jimmy Harber, and Allon Delivery. A summons was issued for service on Defendant Garza, listing his correct home address. The return of summons was completed by a deputy sheriff as follows 1:
I HEREBY CERTIFY THAT I HAVE SERVED THE WITHIN THE WITHIN SUMMONS:
By delivering on the 21st day of December, 2005, at 18:50 P.M. a copy of the summons and a copy of the Complaint to the following defendants:
Jimmy Harber owner of Allon Delivery, owner requested paper to be served upon Jimmy Harber
Answers were filed on behalf of Jimmy Harber and Allon Delivery, but Defendant Garza did not file an answer. Plaintiff subsequently engaged in discovery with Jimmy Harber and Allon Delivery, but Defendant Garza did not participate.
On May 21, 2007, Defendant Garza filed a motion to dismiss for insufficient service of process, along with a memorandum of law and his own affidavit stating that he was never served with process. Defendant Garza further stated by affidavit that he had resided at the address listed on the summons since 2002, and that to his knowledge, no one had attempted to serve him with process. Defendant Garza also stated that he had “never given authorization to Mr. Harber to accept process on my behalf,” and that Mr. Harber had never been his authorized agent for any purpose.
Jimmy Harber testified by deposition that the deputy sheriff left “papers” at his house, and that his wife, Bonnie, gave them to Defendant Garza when he picked up his paycheck at the Harbers' residence later that week. Mr. Harber explained that he was out of town when Defendant Garza came to get his paycheck, and Bonnie did not tell him any details about the encounter.
Plaintiff's counsel deposed Defendant Garza on July 28, 2007, after he had filed the motion to dismiss for insufficient service of process. Defendant Garza testified that he received “the lawsuit” one day when he went to Jimmy Harber's house to get his paycheck. Defendant Garza could not remember if Bonnie Harber handed the papers directly to him, or if she was even present. He stated that the papers were in an envelope with his paycheck, and that he did not even look at them at the time. When he got home, his wife discovered the summons and read it to him.
On August 3, 2007, Plaintiff filed a “Motion for Suggestion of Diminution of Record,” requesting that the summons be amended to show that it was served upon Defendant Garza by Bonnie Harber. Plaintiff also filed a response to the motion to dismiss, arguing that Defendant Garza should be estopped from asserting the defense of insufficiency of service of process because his motion to dismiss was untimely.
The trial court held a hearing on the motions on August 6, 2007. Thereafter, the court entered an order granting Defendant Garza's motion to dismiss and denying Plaintiff's motion for suggestion of diminution of the record. The order was made final pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure, and Plaintiff timely appealed.
Plaintiff presents the following issues, slightly restated, for review:
For the following reasons, we affirm the decision of the circuit court.
Because the trial court's jurisdiction of the parties is acquired by service of process, proper service of process is an essential step in a proceeding. Stitts v. McGown, No. E2005-02496-COA-R3-CV, 2006 WL 1152649, at *2 (citing Haley v. University of Tennessee-Knoxville, 188 S.W.3d 518, 522 (Tenn.2006)). The record must establish that the plaintiff complied with the requisite procedural rules, and the fact that the defendant had actual knowledge of attempted service does not render the service effectual if the plaintiff did not serve process in accordance with the rules. Wallace v. Wallace, No. 01A01-9512-CH-00579, 1996 WL 411627, at *2 (Tenn.Ct.App.M.S. July 24, 1996).
“The Tennessee Rules of Civil Procedure govern the service of process, and the Supreme Court has held that the Rules of Civil Procedure are ‘laws' of this state, in full force and effect, until such time as they are superseded by legislative enactment or inconsistent rules promulgated by the Court and adopted by the General Assembly.” Estate of McFerren v. Infinity Transport, LLC, 197 S.W.3d 743, 747 (Tenn.Workers Comp.Panel 2006) (citing State v. Hodges, 815 S.W.2d 151, 155 (Tenn.1991)). “Service of process must strictly comply to Rule 4 of the Tennessee Rules of Civil Procedure.” Wallace, 1996 WL 411627, at *2. Rule 4.04 of the Tennessee Rules of Civil Procedure provides, in relevant part:
Rule 4.03 provides that “[t]he person serving the summons shall promptly make proof of service to the court and shall identify the person served and shall describe the manner of service.” The return of service is “a written account of the actions taken by the person making service to show to whom and how the service was made, or the reason service was not made.” 3 Nancy Fraas MacLean Tennessee Practice Series-Rules of Civil Procedure Annotated § 4:15 (4th ed.2008). According to the Advisory Commission Comment to Rule 4.03, “the manner of service must be described and the person served must be identified on the return; thus any departure from the routine manner of service will instantly be apparent to the court and to defendant's counsel.” Rule 4.01 states that the return indorsed on the summons “shall be proof of the time and manner of service.”
In the case before us, the return indorsed on the summons for Defendant Garza reads, “Jimmy Harber owner of Allon Delivery, owner requested paper to be served upon Jimmy Harber.” Thus, the summons was not delivered “to the individual [Defendant Garza] personally,” in accordance with the first part of Rule 4.04(1). Instead, it was left with a co-defendant. Still, Plaintiff argues that because “an officer's return is prima facie evidence of proper service,” Jackson v. Aldridge, 6 S.W.3d 501, 503 (Tenn.Ct.App.1999), we must assume that service was proper, and that Jimmy Harber must have been “an agent authorized by appointment or by law to receive service on behalf of” Defendant Garza. See Tenn. R. Civ. P. 4.04(1). According to Plaintiff, Defendant Garza was required to prove, through disinterested witnesses, by clear and convincing evidence, that Jimmy Harber was not authorized to receive process on his behalf. We disagree. The presumption that statements in an officer's return are true does not extend to the lengths urged by Plaintiff.
Statements made in the officer's return are entitled to presumptive weight because sheriffs and their deputies “cannot be expected to retain independent recollections of each service, and they generally have no personal interest in the litigation.” 62B Am.Jur.2d Process § 291 (2008). For example, in Brake v. Kelly, 189 Tenn. 612, 226 S.W.2d 1008, 1010-11 (1950), three defendants testified that they were not served with process, but the official return of the deputy sheriff was directly to the contrary. The deputy testified that while he had no independent recollection of having served these particular summonses, “he was sure that he did do so, or he would not have so made the return which, except as to the printed part, [was] in his own handwriting.” Id. at 1009. The Supreme Court concluded that the defendants “had failed to carry the burden of proof in support of their allegation that they had not been served with process and that the return of the officer to the contrary was false.” Id. at 1010. The Court interpreted previous cases as holding that when a defendant denies being “served with process the official return and the testimony of the sheriff to the contrary,...
To continue reading
Request your trial
-
Scanlan v. Townsend
...v. Marshall Furniture Co., 142 Ga.App. 242, 235 S.E.2d 672 (1977) ; Hill v. Ramey, 744 N.E.2d 509 (Ind.Ct.App.2001) ; Watson v. Garza, 316 S.W.3d 589 (Tenn.Ct.App.2008) ; Pease Bros. v. Am. Pipe & Supply Co., 522 P.2d 996 (Wyo.1974).6 The parties do not dispute our long-standing rule that a......
- In The Matter Of John Ussery v. The City Of D.C., M2008-01113-COA-R3-CV.
-
Hart v. Memphis Light Gas & Water Div.
...by the person making service to show to whom and how the service was made, or the reason service was not made.'" Watson v. Garza, 316 S.W.3d 589, 593 (Tenn. Ct. App. 2008) (quoting 3 Nancy Fraas MacLean, Tennessee Practice Series-Rules of Civil Procedure Annotated § 4:15 (4th ed.2008)). The......
-
Dotson v. Contemporary Media, Inc.
...Flyer on the ground that it was not properly served with the amended complaint. As explained by this Court, in Watson v. Garza, 316 S.W.3d 589, (Tenn. Ct. App. 2008):Because the trial court's jurisdiction of the parties is acquired by service of process, proper service of process is an esse......