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Faulks v. Crowder9/5/2002
Background
These two medical malpractice lawsuits assert a claim which accrued on or before November 5, 1996, the day Plaintiffs' five day old son died after being diagnosed with hypoplastic left heart syndrome. On October 31, 1997, Plaintiffs filed suit against Dr. Brenda Crowder ("Crowder"), Dr. Robert Grindstaff ("Grindstaff"), Dr. Richard Reece ("Reece"), Dr. James K. McGraw ("McGraw"), and Sycamore Shoals Hospital, Inc. ("Sycamore Shoals"). Along with the Complaint and five summonses, the attorney for Plaintiffs enclosed a cover letter to the court clerk stating they were "not seeking service at this time." As a result, the summonses were issued, but no attempt was made to serve the complaint and summonses on Defendants. The attorney who filed the lawsuit later explained the reason service was not sought when the Complaint was filed was because he was having trouble obtaining a complete set of medical records and could not have the merits of the case evaluated until a complete set was obtained. He stated service of process never was sought while he was attorney of record.
On May 22, 1998, Crowder filed a motion to dismiss alleging ineffective and/or lack of service of process . Crowder never had been served with process, per the instructions of Plaintiffs' counsel. Crowder apparently learned the lawsuit had been filed from an article in the local newspaper.
Plaintiffs' original attorney obtained different employment and withdrew from the case as attorney of record. The case was assigned to a different attorney in the same law firm. After new counsel took over the case, summonses were reissued for all five Defendants on July 23, 1998. Plaintiffs sought to serve Defendants via certified mail. With regard to the four individual Defendants, the return receipts for the certified mail were signed by someone other than the actual Defendant on July 28, 1998. The return receipts showing who signed for the certified mail then were attached to a Motion to Non-Suit filed on July 28, 1998. In that motion, Plaintiffs sought to non-suit all Defendants except Crowder. The motion states "Plaintiffs are serving a copy of the Motion for Non-Suit on each of the defendants pursuant to Rule 41 of the Tennessee Code of Civil Procedure." The Certificate of Service indicates only that a copy of the motion was being served on Defendants. An order granting the Motion to Non-Suit was entered on August 7, 1998, granting Plaintiffs a non-suit pursuant to Rule 41.01 of the Tennessee Rules of Civil Procedure.
Since Crowder is the only remaining defendant in the original lawsuit, we will discuss what happened with this case separately until we discuss the Court's eventual dismissal of both lawsuits. On August 10, 1998, the Trial Court heard oral argument on Crowder's motion to dismiss based on the original summons that was filed but never served. The Trial Court orally denied Crowder's motion to dismiss after hearing argument from the parties, but an Order was never entered reflecting the Court's judgment. On August 25, 1998, Crowder filed an Answer claiming, among other things, that the statute of limitations had run because the action was not properly commenced within the applicable time limit. Crowder did not claim ineffective service of process as to the service of process sent via certified mail on July 23, 1998. On September 11, 1998, Crowder refiled her motion for summary judgment asking the Trial Court to reconsider the previous denial of this motion. This second motion for summary judgment, as with the first, challenged only the lack of service when the suit was originally filed and did not address the July 23, 1998, reissuance of process and attempted service via certified ma
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