Robert G. Crabtree, Jr. v. Jennifer L. Lund - Concurring ( 2010 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
August 30, 2010 Session
ROBERT G. CRABTREE, JR., ET AL. v. JENNIFER L. LUND
Appeal from the Circuit Court for Carter County
No. C10184 Thomas J. Seeley, Judge
No. E2009-01561-COA-R3-CV - FILED OCTOBER 28, 2010
Dall. M ICHAEL S WINEY, JUDGE, concurring.
I concur in the decision to vacate the judgment of the Trial Court. I agree that
Tenn. R. Civ. P. 4.01(3) controls the outcome of this appeal. I further agree that the issue
in this case is whether Plaintiffs intentionally caused the delay in the prompt service of the
summons. I further agree that the record before us shows that Plaintiffs did make at least
some attempts to serve Defendant. This being so, I agree that Defendant did not meet her
burden of showing that Plaintiffs intentionally delayed service of the summons.
I write separately to express my concern that the Opinion in the future may be
used to argue the position that Rule 4.01(3) requires not only that a plaintiff intentionally
have delayed prompt issuance or service of the summons, but also that this intentional delay
was because of some actual or at least “perceived advantage to the plaintiff in delaying
service.” I do not think Rule 4.01(3) concerns itself with why a plaintiff intentionally
delayed the issuance or service of a summons, only with whether the delay was intentional.
Proof that there was some actual or “perceived advantage to the plaintiff in delaying service”
might well be evidence that the delay was intentional, but the existence of such an actual or
“perceived advantage to the plaintiff” is not, I believe, a requirement of Rule 4.01(3). The
only question under Rule 4.01(3) is whether the delay was intentionally caused by plaintiff
or plaintiff’s counsel.
_________________________________
D. MICHAEL SWINEY, JUDGE