Day on Torts
The Tennessee Court of Appeals recently held that a General Sessions plaintiff cannot skip the procedure for filing unserved process to avoid letting the statute of limitations run.
Tenn. Code Ann. § 16-15-902 requires a plaintiff in General Sessions court to return process within 60 days of issuance. § 16-15-902 does not explicitly state that a plaintiff must return the process if it is unserved. Under Tenn. Code Ann. § 16-15-710, however, a plaintiff who does return process as unserved must take action to rely on the original filing date for the statute of limitations. Once the plaintiff returns the process as unserved, the plaintiff has to either have process reissued within 9 months or refile the case within one year.
In Gates v. Perry, No. 2013-01992-COA – R9-CV (Tenn. Ct. App. March 26, 2014) the plaintiff never filed the unserved process with the court, and instead had a new warrant issued eighteen months later. The plaintiff argued that, since he never filed the unserved process, Tenn. Code Ann. § 16-15-710 was never triggered. The trial court agreed, and denied a motion to dismiss by the defendant.
The Court of Appeals reversed, explaining it “cannot accept the argument that our General Assembly intended to penalize a plaintiff who acts and reward a plaintiff who does nothing as concerns the return of unserved process.” The Court of Appeals held:
[I]f an unserved process is not returned unserved within 60 days of issuance, a plaintiff in general sessions court who wishes to rely on the original commencement as a bar to the running of the statute of limitations has nine months from the end of the 60 days from the issuance of the prior process to obtain new process or the plaintiff must recommence the action within one year after 60 days from the issuance of the initial process not served and not returned.
So in a nutshell, to rely on the original filing date to toll the statute of limitations, a General Sessions plaintiff must comply with § 16-15-902 by returning any unserved process within 60 days, and then comply with § 16-15-710 by either having process reissued within 9 months or by refiling the case within 1 year.