Nancy Spratt v. Donald Bishop ( 2016 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
July 13, 2016 Session
NANCY SPRATT V. DONALD BISHOP
Appeal from the Circuit Court for Humphreys County
No. 10153 Suzanne Lockert-Mash, Judge
No. M2015-01352-COA-R3-CV - Filed July 19, 2016
Due to Plaintiff‟s failure to reissue summons within one year of the issuance of the
original, unserved summons, the trial court granted Defendant‟s Motion to Dismiss for
Plaintiffs‟ failure to comply with Rule 3 of the Tennessee Rules of Civil Procedure. We
affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
FRANK G. CLEMENT, JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D.
BENNETT and RICHARD H. DINKINS, JJ., joined.
Charles M. Duke, Nashville, Tennessee, for the appellant, Nancy Spratt.
David J. Silvus and W. Timothy Harvey, Clarksville, Tennessee, for the appellee, Donald
Bishop.
MEMORANDUM OPINION1
This matter arose out of an August 25, 2011 motor vehicle accident in which
Nancy Spratt (“Plaintiff”) was allegedly rear-ended by Donald Bishop (“Defendant”).
Plaintiff filed suit against Defendant in the Humphreys County Circuit Court on August
22, 2012. Plaintiff timely filed the original summons along with the complaint. The
summons was punctually issued by the Clerk and delivered to the Sheriff‟s Office for
1
Tenn. Ct. App. R. 10 states:
This Court, with the concurrence of all judges participating in the case, may affirm,
reverse or modify the actions of the trial court by memorandum opinion when a formal
opinion would have no precedential value. When a case is decided by memorandum
opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and
shall not be cited or relied on for any reason in any unrelated case.
service on Defendant. The Sheriff attempted service on Defendant at his residence, but
the summons was returned unserved with the notation: “Subject is in military. Currently
in Afghanistan overseas.”
On or before December 11, 2012, counsel for Defendant made Plaintiff aware that
two people with the name Donald Bishop resided at Defendant‟s residence: Donald
Bishop, the father and the defendant in this case, and Donald Bishop, the son, who was in
active military service in Afghanistan at the time service was attempted. Counsel for
Defendant further informed Plaintiff that Defendant was not a member of the military and
that service was attempted on Defendant‟s son, rather than Defendant.
Plaintiff did not attempt to file an alias summons until August 26, 2013―almost
nine months after receiving notice that Defendant was not a member of the military. The
alias summons was served by personal service on Defendant on August 30, 2013.
Thereafter, Defendant filed a motion to dismiss based upon Plaintiff‟s failure to reissue
summons within one year from the date of the issuance of the original summons in
accordance with Rule 3 of the Tennessee Rules of Civil Procedure, which reads:
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 upon 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.
Tenn. R. Civ. P. 3 (emphasis added).
A hearing on the motion to dismiss occurred on June 3, 2014. At the hearing,
Plaintiff argued that the time for reissuance of the summons was tolled during the period
of time in which Plaintiff “believed” that Defendant was in active military service. Stated
another way, Plaintiff insisted that she had until December 11, 2014, to file the alias
summons, that being one year from the date she discovered that Defendant was not in
active military service. In support of this argument, Plaintiff relied on the
Servicemembers Civil Relief Act (“SCRA”) 50 U.S.C. § 3936(a) concerning the tolling
of statutes of limitation during military service that provides as follows:
The period of a servicemember‟s military service may not be included in
computing any period limited by law, regulation, or order for the bringing
of any action or proceeding in a court, or in any board, bureau, commission,
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department, or other agency of a State (or political subdivision of a State)
or the United States by or against the servicemember or the
servicemember‟s heirs, executors, administrators, or assigns.
The trial court granted Defendant‟s motion to dismiss by order entered June 25,
2014, finding the SCRA to be inapplicable because it was undisputed that Defendant was
not a member of the military at the time of the issuance of the summons or subsequent to
it. Following the order of dismissal, Plaintiff filed a motion to alter or amend the order,
which the trial court denied. This appeal followed.
ANALYSIS
The dispositive issue on appeal is whether Plaintiff can rely on the SCRA to toll
the one-year time period for issuance of new process set forth in Tenn. R. Civ. P. 3.
Although Plaintiff contends the SCRA should apply, Plaintiff concedes that no case law
exists to support her position and we have identified authority that supports the trial
court‟s ruling.
The tolling provision of the SCRA operates to toll any applicable statute of
limitations for a servicemember‟s period of military service. See 50 U.S.C. § 3936(a).
The SCRA defines a “servicemember” as “a member of the uniformed services.” 50
U.S.C. § 3911(1) (emphasis added). Moreover, the SCRA has been held to be
inapplicable to immediate family members. See Card v. Am. Brands Corp., 401 F. Supp.
1186, 1187 (S.D.N.Y. 1975) (holding that the benefits of the tolling protection of the
SCRA “are afforded only to members of the Army, Navy, Marines, Coast Guard and
certain public health officers „and no others.‟”).
Based on the foregoing authority, the trial court correctly concluded that Plaintiff
could not rely on the SCRA to toll the one-year time period for issuance of new process
set forth in Rule 3 of the Tennessee Rules of Civil Procedure. We, therefore, affirm the
trial court‟s dismissal of the complaint
IN CONCLUSION
The judgment of the trial court is affirmed, and this matter is remanded with costs
of appeal assessed against Nancy Spratt.
______________________________
FRANK G. CLEMENT, JR., JUDGE
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