Opinion
C.A. No. 02A01-9708-CV-00192.
January 21, 1998.
Lake County Circuit, The Honorable R. Lee Moore, Jr., Judge, No. 95-7256.
AFFIRMEDRonnie Bradford, [a/k/a] Paul Farnsworth, Pro Se.
John Knox Walkup, Attorney General and Reporter, Kyle P. Sowell, Assistant Attorney General, For Appellee.
MEMORANDUM OPINION
Rule 10 (Court of Appeals). Memorandum Opinion. — (b) The 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 When a case is decided by memorandum opinion it shall be designated "MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case.
The plaintiff, Ronnie Bradfield, a/k/a Paul Farnsworth, sued defendants Donal Campbell, Robert L. Conley, Billy Compton, Harold Butler and John Does 1, 2, and 3. Mr. Bradfield is an inmate in the custody of the Tennessee Department of Corrections, (T.D.O.C.). The complaint identifies Donel Campbell as Commissioner of the T.D.O.C.; Robert Conley as Warden of the correctional facility in Lake County, Tennessee at Tiptonville; Billy Compton as Warden of the correctional facility at Henning, Tennessee and Harold Butler as a physician at Lake County Regional Correction Facility, (L.C.R.C.F.). John Doe 1 is identified as a correctional officer at LCRCF and John Does 2 and 3 are identified as employees of the T.D.O.C.
The complaint alleges that the defendants were negligent in placing the plaintiff in a non-facilitated handicap room wherein he was injured in attempting to place himself on a toilet seat, denied medical attention, forced to perform duties beyond his physical capacities and for taking from him and failing to return certain legal pleadings pertaining to certain litigation involving the plaintiff.
Plaintiff filed a motion for default judgment which was denied. He then attempted an appeal to this court which was dismissed on the basis that the trial courts order was interlocutory in nature and not appealable pursuant to Rule 3 T.R.A.P. .
The trial court entered an order dismissing the defendants for failure of the plaintiff to obtain proper and timely service and it is from this order that the plaintiff appeals.
The complaint was filed August 2, 1995. Plaintiff then attempted to serve process on the defendants by mail pursuant to Rule 4.04(10) T.R.C.P. The Rule provides as follows:
At the time this Rule was designated as 4.04(12).
Service by mail of the summons and complaint upon a defendant may be made by the plaintiff, the plaintiff's attorney or by any person authorized by statute. After the complaint is filed, the clerk shall, upon request, furnish the original summons, a certified copy thereof and a copy of the filed complaint to the plaintiff, the plaintiff's attorney or other authorized person for service by mail. Such person shall send, postage prepaid, a certified copy of the summons and a copy of the complaint by registered return receipt or certified return receipt mail to the defendant. The original summons shall be used for return of service of process pursuant to Rule 4.03(2). Service by mail shall not be the basis for the entry of a judgment by default unless the record contains a return receipt showing personal acceptance by the defendant or by persons designated by Rule 4.04 or statute. If service by mail is unsuccessful, it may be tried again or other methods authorized by these rules or by statute may be used.
According to the record before us, Mr. Bradfield did not comply with the above rule in attempting to serve the defendants by mail. New process was not issued until February, 1997. According to Rule 3 T.R.C.P.:
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 30 days or is not served or is not returned within 30 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.
The order of the trial court granting the defendants' motion to dismiss states that "plaintiff filed his complaint on August 2, 1995, attempting to obtain service of process on defendants by mail pursuant to Rule 4.04 of the Tennessee Rules of Civil Procedure. Proper service was not obtained. Plaintiff thereafter failed to obtain proper service until February, 1997. Plaintiff failed to issue new process within one year from the issuance of the previous process pursuant to Rule 3 of the Tennessee Rules of Civil Procedure. Defendants' motion to dismiss based upon applicable statute of limitations is granted." In reviewing this record, we do not find that the plaintiff has shown that the trial court erred in dismissing his action. We note that defendants Campbell and Compton included within their motion to dismiss that exclusive jurisdiction for the plaintiff's cause of action rested with the Tennessee Claims Commission. Although that is jurisdictional, it was not addressed by the trial court nor briefed by the parties and we do not deem it necessary to address in view of our affirmance of the trial court's order of dismissal on the basis of untimely process.
There is no indication in the record that Dr. Harold Butler was ever served with process.
Plaintiff argues in his brief that the trial court erred in failing to find the defendants' in contempt of court for failure to file an answer to his complaint. This argument has no merit. The judgment of the trial court is affirmed and the cost of this appeal are taxed to Ronnie Bradfield, a/k/a Paul Farnsworth, for which execution may issue is necessary.
_________________________________________ FARMER, J.
CONCURS:
_____________________________________ CRAWFORD, P.J.W.S.
_____________________________________ LILLARD, J.