Service of Process at Issue in Maryville, TN Post-Divorce Dispute: Christenberry v. Christenberry

January 18, 2016 K.O. Herston 0 Comments

Facts: Husband and Wife divorced in 2004 after 36 years of marriage. As part of the divorce, Wife was awarded a $24,000 judgment against Husband.

Wife contends Husband never paid the judgment. To secure payment of the judgment, Wife recorded a lien on a 115 acre property owned by Husband.

In 2014, Wife filed a lawsuit to prohibit the impending sale or auction of Husband’s 115 acre property. Wife did not have the court clerk issue summonses to the defendants. Instead, Wife simply mailed a copy of the lawsuit to the defendants.

The defendants filed a motion to dismiss Wife’s lawsuit because Wife failed to secure service of process on the defendants.

The trial court dismissed Wife’s lawsuit because she failed to have summonses issued or served at the time her lawsuit was filed.

Wife appealed.

On Appeal: The Court of Appeals reversed the trial court.

Rule 3 of the Tennessee Rules of Civil Procedure provides as follows:

All civil actions are commenced by filing a complaint with the clerk of the court. An action is commenced within the meaning of any statute of limitations upon such filing of a complaint, whether process be issued or not issued and whether process be returned served or unserved. If process remains unissued for 90 days or is not served within 90 days from issuance, regardless of the reason, the plaintiff cannot rely on the original commencement to toll the running of a statute of limitations unless the plaintiff continues the action by obtaining issuance of new process within one year from issuance of the previous process or, if no process is issued, within one year of the filing of the complaint.

Moreover, Rule 4.01(3) of the Tennessee Rules of Civil Procedure says, “If a plaintiff or counsel for plaintiff (including third-party plaintiffs) intentionally causes delay of prompt issuance of a summons or prompt service of the summons, filing of the complaint (or third-party complaint) is ineffective.”

After reviewing the record, the Court concluded:

Pursuant to the explicit language of Tennessee Rule of Civil Procedure 3, if no process is issued at the time of the filing of the complaint, the plaintiff may have process issued for up to one year from the complaint’s filing date. Failure to issue process will result in a filing of the complaint being ineffective to toll the statute of limitations during the year following the filing date only if the plaintiff or plaintiff’s attorney intentionally causes delay in the issuance or service of the summons. Conversely, unintentional delay in the issuance or service of a summons would still properly commence the action.

The trial court herein dismiss Wife’s complaint four months following the filing of the complaint for, inter alia, insufficiency of process and insufficiency of service of process. We conclude that the trial court erred in relying upon the lack of issuance or service of process as a ground for dismissal when Wife had one year from the date the complaint was filed during which she could have process issued and served. Although a demonstration of intentional delay by Wife in the issuance or service of summons would alter this holding, Husband presented no evidence of intentional delay in this case.

Accordingly, the trial court’s ruling was reversed. The case was remanded to the trial court for summonses to be issued and served on the defendants.

K.O.’s Comment: This appears to be another accidental victory by a pro se appellant.

Christenberry v. Christenberry (Tennessee Court of Appeals, Eastern Section, January 14, 2016).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce and Family Law Attorney.

Service of Process at Issue in Maryville, TN Post-Divorce Dispute: Christenberry v. Christenberry was last modified: January 15th, 2016 by K.O. Herston

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