Summary Judgment Affirmed Due to Insufficiency of Process
posted on September 19th, 2008 in Summary Judgment, Service of Process by clintIn Dumbaugh v. Thomas, 2008 WL 2894792 (Tenn.Ct.App.), on October 11, 2005, Mr. Dumbaugh filed suit against Dr. Thomas, individually and as an employee of TransSouth for medical malpractice. A Madison County Deputy Sheriff served the summons and complaint upon Ms. Tillman, Dr. Thomas’s purported office manager. According to the deputy’s affidavit, his normal procedure is to ask for the office manager or the individual authorized to accept service. The deputy’s affidavit further averred that Ms. Tillman stated she had the authority, by power of attorney, to accept service on behalf of Dr. Thomas. Mr. Dumbaugh contended that Ms. Tillman had since accepted service on Dr. Thomas’s behalf. Dr. Thomas, on the other hand, filed an affidavit stating that Ms. Tillman was neither his employee nor his authorized agent for accepting service of process on his behalf.
On January 11, 2006, a complaint and summons were served on Cathy Wallace, who, according to Mr. Dumbaugh, “oversees the front office area of the corporate offices of … TransSouth.” The deputy instructed Ms. Wallace to read the summons to determine what action should be taken, but, after accepting it, she allegedly delivered it to medical records without reading it. Mr. Dumbaugh filed a motion for default judgment against Dr. Thomas on January 13, 2006, based upon his failure to respond to the complaint, and upon TransSouth on February 21, 2006, for the same reason. Both parties subsequently filed answers to the complaint and responses to the motions for default judgment. In their answers, both parties pled insufficiency of service of process as the first defense. Dr. Thomas asked the court either to rule that he was never properly served, or, alternatively, to deny the default judgment motion and allow his answer to stand. The court stated it was not necessary to determine whether service was proper and concluded that the defendants’ answers would stand. Based upon this exchange, Mr. Dumbaugh’s counsel believed service of process was no longer an issue.
Dr. Thomas filed a second motion for summary judgment based upon insufficient service of process and the statute of limitations. One year had passed since the insufficient process. In his response, Mr. Dumbaugh attached a partial transcript from the default judgment hearing to establish that the issue of service of process had already been presented to the court. The trial court entered an order granting summary judgment to Dr. Thomas. The order stated that the filings and the default judgment hearing placed Mr. Dumbaugh “on notice” that Dr. Thomas was contesting the sufficiency of service of process. The trial court concluded that “Plaintiffs had several months to have Summons reissued and have Dr. Thomas served to eliminate any risk of lack of service in this matter.” Finally, the trial court found that there was insufficient proof in the record that Vera Tillman was Dr. Thomas’s authorized agent for service of process, and that Ms. Tillman’s statements set forth in the Deputy’s affidavit were hearsay. Mr. Dumbaugh appealed.
The crux of the question was whether Mr. Dumbaugh’s counsel was justified in believing the dispute about service of process had been resolved. The Court of Appeals noted that the trial court had made clear to Mr. Dumbaugh that, even if service were proper, his decision to award a default judgment would still be a matter of discretion. Furthermore, counsel for Dr. Thomas unequivocally argued that service was insufficient because Ms. Tillman was neither the employee nor authorized to accept service of process on Dr. Thomas’s behalf. Although Mr. Dumbaugh’s counsel’s belief may have been sincere, the Court concluded that she could have requested clarification from the court or, as an added safety measure, simply re-served Dr. Thomas.
The lesson from this cause is two-fold: (1) hire a private process server to serve your complaints on the doctor and (2) always take caution with dispositive affirmative defenses that lurk deep within the answer.