Cristy Irene Fair v. Stephen Lynn Cochran
2013 Tenn. LEXIS 727
| Tenn. | 2013Background
- Automobile accident occurred on August 6, 2009 involving Fair and Cochran.
- Fair filed suit December 11, 2009, and issuance of a summons followed that filing.
- Cochran moved to dismiss January 4, 2011, arguing the one-year statute expired and no proof of service had been filed.
- Fair stated service occurred December 20, 2009, based on a private process server’s affidavit and related communications.
- Proof of service was not filed until January 27, 2011, i.e., 412 days after issuance of the summons.
- Trial court dismissed the case; Court of Appeals affirmed; the Tennessee Supreme Court granted review to resolve tolling based on original commencement versus service timing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether late return of proof of service defeats tolling of the statute | Fair tolls by original commencement | Cochran asserts Rule 3 and 4.03 require prompt service return | No; return within 90 days required for tolling, but failure to timely return does not bar tolling if service occurred within 90 days or new process issued within one year. |
Key Cases Cited
- Watson v. Garza, 316 S.W.3d 589 (Tenn. Ct. App. 2008) (return of service as evidence; delay may be weighed by court)
- Brake v. Kelly, 226 S.W.2d 1008 (Tenn. 1950) (early rules on service and commencement timing)
- Royal Clothing Co. v. Holloway, 347 S.W.2d 491 (Tenn. 1961) (service proof and effect on validity of service)
- Tenn. R. Civ. P. 3 advisory commission cmt., (no reporter) ((1998)) (notes removal of 30-day prompt return requirement)