News

Rule Change Package Released for Review, Comment

The Tennessee Supreme Court has published the annual package of recommendations from the Advisory Commission on Rules of Procedure and Evidence. Proposals include new authority for appellate courts to dismiss appeals; provisions permitting electronic signatures in courts employing electronic filing; clarification of the effect of service of process on commencement of actions; adoption of the term preliminary hearing in lieu of preliminary examination in criminal procedure; and, refinement of procedure for correction of illegal sentences in criminal cases. The are no evidence rules changes proposed this year. A 90-page comprehensive restructuring and revision of the Rules of Juvenile Procedure is also included.

Six TBA sections -- Appellate Practice, Litigation, Tort and Insurance Law , Family Law, Juvenile and Children’s Law and Criminal Justice -- will be asked to review the proposed amendments and recommend comments on behalf of the association. Comments on the proposals are due to the Court by November 25, 2015.

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Court Square Series Offers 3 CLE Hours in Dyersburg, Jackson

Judge C. Creed McGinley and Judge J. Steven Stafford will speak at the annual Court Square CLE in Dyersburg, Sept. 17. Judge Allen Phillips will talk about his role on the Court of Workers' Compensation Claim at the Court Square CLE in Jackson. Both programs offer three hours of CLE.

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Jail Related GTLA Suit Dismissal Affirmed by Eastern Section

ESTATE OF WALTER BRADLEY by Next of Kin, IRENE KING, ET AL. v. HAMILTON COUNTY
Court: TN Court of Appeals

Attorneys:

H. Whitney Durand, III, and John M. Wolfe, Jr., Chattanooga, Tennessee, for the appellant, Estate of Walter Bradley by next of kin, Irene King.

R. Dee Hobbs, Chattanooga, Tennessee, for the appellee, Hamilton County.

Judge: MCCLARTY

Following his conviction, Mr. Bradley was placed at the Hamilton County Jail in March 2012. Over the next seven months, Mr. Bradley spent several weeks in and out of Erlanger Medical Center and Moccasin Bend Mental Health Institute due to his poor health. In October 2012, he passed away from tuberculosis. His sister brought this action for wrongful death and negligence under Tennessee?s Governmental Tort Liability Act against Hamilton County. She later amended the complaint in order to add a claim for severe emotional distress she personally suffered as a result of her brother?s alleged mistreatment. Hamilton County filed a motion to dismiss and a motion for summary judgment. The trial court consolidated the two motions together and dismissed the complaint in its entirety. The sister appeals. We affirm.

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You May Not Fire a Worker for Making a Work Comp Claim, but There is No Cause of Action for Failing to Hire, per Supreme Court

KIGHWAUNDA M. YARDLEY v. HOSPITAL HOUSEKEEPING SYSTEMS, LLC
Court: TN Supreme Court

Attorneys:

David L. Cooper, Nashville, Tennessee, for the appellant, Kighwaunda M. Yardley.

Fred C. Statum III and Thomas W. Whitworth, Nashville, Tennessee, for the appellee, Hospital Housekeeping Systems, LLC. Wade B. Cowan and Douglas B. Janney III, Nashville, Tennessee; Justin S. Gilbert, Jackson, Tennessee; Jennifer B. Morton, Knoxville, Tennessee; and Bryce W. Ashby and William B. Ryan, Memphis, Tennessee, for the amicus curiae, Tennessee Employment Lawyers Association.

Dale Conder Jr., Jackson, Tennessee, for the amicus curiae, Tennessee Defense Lawyers Association.
Judge: LEE

We accepted a question of law certified by the United States District Court for the Middle District of Tennessee to determine whether a job applicant has a cause of action under the Tennessee Workers’ Compensation Act against a prospective employer for failure to hire if the prospective employer failed to hire the job applicant because that applicant had filed, or is likely to file, a workers’ compensation claim against a previous employer, and if such a cause of action exists, what standard should apply. We hold that there is no cause of action for failure to hire under the Tennessee Workers’ Compensation Act.

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A Pro Se Parent's Attempt to Represent Child Deemed a Nullity by the Middle Section

JAMES R. VANDERGRIFF ET AL. v. PARKRIDGE EAST HOSPITAL ET AL.
Court: TN Court of Appeals

Attorneys:

James R. Vandergriff and Samantha J. Vandergriff, Pro se.

H. Dean Clements and Brie Allaman Stewart, Chattanooga, Tennessee for the appellees, ParkRidge East Hospital. F. Laurens Brock, Rocklan W. King III, and Donna L. Boyce, Nashville, Tennessee for the appellees, Richard J. Bowers, M.D., Elizabeth M. Bowers, M.D., and Chattanooga Women’s Specialist, P.C. Arthur P. Brock and Drew H. Reynolds, Chattanooga, Tennessee, for the appellees, Shawn P. Stallings, M.D. and Regional Obstetrical Consultants, P.C.

Judge: CLEMENT

The parents of a minor child filed a pro se complaint asserting claims on behalf of their daughter and individual claims by each parent. The complaint alleges that the daughter was born with brain injuries and remains severely disabled due to the failure of health care providers to treat her mother for a severe womb infection during two hospitalizations preceding birth. Plaintiffs also allege that the complaint was filed timely, although it was filed ten years after birth, because the defendants fraudulently concealed the fact that the mother was not treated for the infection. The complaint states that the parents learned of the infection in 2012 when they obtained medical records that included a previously- undisclosed placenta pathology report. The defendants responded to the complaint by filing Tenn. R. Civ. P. 12.02(6) motions to dismiss the parents’ individual claims pursuant to the one-year statute of limitations, Tenn. Code Ann. § 29-26-116(a)(1)-(2), and the daughter’s claims based upon the three-year statute of repose, Tenn. Code Ann. § 29-26-116(a)(3). The trial court dismissed the parents’ individual claims because the complaint established that the parents learned of the infection no later than December 31, 2012, yet another eighteen months passed before the complaint was filed. As for the daughter’s claims, the trial court concluded that her claims were barred by the statute of repose. Plaintiffs appealed, contending that it was error to dismiss their individual claims based upon the statute of limitations and the daughter’s claims on the statute of repose. We affirm the dismissal of the parents’ claims as barred by the statute of limitations because the complaint indicates that in 2012 the plaintiffs had sufficient facts to put a reasonable person on notice that they had been injured by the defendants’ negligence, and they failed to file their claims in a timely manner thereafter. As for the minor child’s separate claims, they were asserted in a pro se complaint filed by her parents, and neither of her parents is a licensed attorney. Although a parent “may sue or defend” on behalf of their minor child, see Tenn. R. Civ. P. 17, a parent who is not “duly licensed” may not engage in the “practice of law” on behalf of their minor child. See Tenn. Sup. Ct. R. 7, § 1.01; Tenn. Code Ann. § 23-3-103(a). A claim asserted in a pleading by a person who is not entitled to practice law is a nullity. Bivins v. Hosp. Corp. of Am., 910 S.W.2d 441, 447 (Tenn. Ct. App. 1995); see Investors Grp., I Ltd. v. Knoxville's Cmty. Dev. Corp., ?? No. E1999-00395-COA-R3-CV, 2001 WL 839837, at *2 (Tenn. Ct. App. July 25, 2001). Because the parents’ attempt to assert claims on behalf of their daughter was a nullity, see Gentry v. Gentry, 924 S.W.2d 678, 680 (Tenn. 1996), the trial court’s judgment on the merits of the minor’s purported claims is vacated.

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Court to Review Uninsured Motorist Coverage

A case granted review by the Tennessee Supreme Court may help determine if an uninsured motorist policy can cover damages caused by a rental car when the rental car’s company is self-insured. The trial court determined that a rental car owned by a car agency was self-insured, so damages incurred in the wreck did not arise from an “uninsured” motor vehicle. The Raybin-Perky Hotlist reviews the case and offers a prediction on how the case may be decided.

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EJU Registration Closes Next Wednesday

Registration for the 2015 Equal Justice University (EJU) conference will close next Wednesday. Attendees will hear from national speakers such as Eric Carlson, with Justice in Aging; the National Employment Law Project's Rebecca Dixon; Camille Holmes with the National Legal Aid and Defender Association; and Georgetown University law professor David Super. EJU is hosted by the Tennessee Alliance for Legal Services and co-sponsored by the Tennessee Bar Association.

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Nashville Lawyer Receives 2015 Paladin Award

Nashville attorney Kenny Byrd of Lieff Cabraser Heimann & Bernstein has been recognized with the Tennessee Association for Justice’s (TAJ) 2015 Paladin Award. The award is the group’s highest honor, given to an attorney who has demonstrated superior skills as a trial advocate, has achieved an outstanding result for clients and has worked to improve the civil justice system. Byrd was recognized for the role he played in successful litigation against cigarette manufacturers R.J. Reynolds Tobacco Company, Philip Morris USA Inc. and Lorillard Tobacco Company.

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Class Action Suit Filed Over Train Derailment

The first lawsuit against CSX has been filed in Maryville, WATE reports. The suit alleges that CSX was “negligent and caused a nuisance” when its train carrying toxic, flammable liquid derailed and caused thousands to be evacuated. Maryville attorney Kevin W. Shepherd said he filed the suit with the Tucson, Arizona, law firm of Bellovin and Karnas, because of that firm's experience with toxic chemical tort litigation.

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Date Set for Fungal Meningitis Criminal Trial

The 14 suspects accused of being involved in a criminal conspiracy that led to the fungal meningitis outbreak are scheduled to go to trial on April 4, 2016, the Tennessean reports. The U.S. Department of Justice has started sending notices of the trial to those victimized by the outbreak. Tennessee was one of the hardest hit states with 153 illnesses, including 16 deaths, according to the U.S. Centers for Disease Control and Prevention. The trial will take place in Boston.

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Court Determines Assignment of Insurance Proceeds Wasn’t Effective

The Tennessee Supreme Court has determined that a Nashville chiropractic clinic’s patient did not effectively assign his rights to insurance proceeds received from a third party’s insurance company. In an opinion written by Justice Jeffrey S. Bivins, the Court pointed out that the agreement’s language implies that the patient intended to assign proceeds from his own insurance policies, not proceeds from another person’s insurance. The AOC has the full opinion.

Supreme Court Orders New Trial on Damages in Railroad Negligence Case

The Tennessee Supreme Court has ruled that a widow whose husband died after a five-year battle with lung cancer will get a new trial to determine the amount of damages owed by her husband’s employer as a result of its negligence in contributing to her husband’s illness. The Supreme Court, which agreed with the Court of Appeals that a new trial should not have been granted and that the suit should not have been dismissed, now returns the case to the Knox County Circuit Court with directions for a new jury to determine the proper amount of damages. The Administrative Office of the Courts has more

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Court Reverses Dismissal of Health Care Liability Lawsuit

The Tennessee Supreme Court has reversed a trial court’s dismissal of a health care liability lawsuit against an East Tennessee doctor and hospital, concluding that delivery of pre-suit notice of a health care liability action via FedEx is a proper method of service under Tennessee law. In a unanimous opinion authored by Chief Justice Sharon G. Lee, the Supreme Court held that the delivery of pre-suit notice to health care defendants may be achieved by substantially complying with the statute and that use of FedEx as the carrier of the notice letters constitutes substantial compliance. The AOC has more.

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Appeals Court Rules that Vacancy Exclusion for Vandalism and Malicious Mischief, Theft or Attempted Theft Does not Encompass Arson

SOUTHERN TRUST INSURANCE COMPANY v. MATTHEW PHILLIPS
Court: TN Court of Appeals

Attorneys:

Terrill Lee Adkins and Amy Victoria Peters, Knoxville, Tennessee, for the appellant, Southern Trust Insurance Company.

James Brandon McWherter, Franklin, Tennessee, and Clinton H. Scott, Jackson, Tennessee, for the appellee, Matthew Phillips.

Judge: GIBSON

This appeal involves the interpretation of an insurance policy in order to determine whether the policy provided coverage for damage caused by arson. The insurer and the insured filed cross-motions for partial summary judgment on this issue. The trial court found the policy ambiguous and construed it in favor of coverage, holding that arson was covered under the policy. Accordingly, the trial court granted the motion for partial summary judgment filed by the insured and denied the motion for partial summary judgment filed by the insurer. The insurer appeals. We affirm.

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Court Rules on Passport Issue, Grants 3 Cases for Fall

The U.S. Supreme Court issued three opinions today, including one favoring the White House in a foreign-policy power struggle with Congress over whether Jerusalem-born Americans may list Israel as the place of birth on their U.S. passports. The court also agreed to hear three cases in the fall: when a three-judge panel must be convened to consider challenges to redistricting plans, how workers prove class action damages, and whether a defendant facing asset forfeiture can use funds not obtained from the crime to pay for legal representation. Finally, the court declined to hear four cases, including another challenge to the Affordable Care Act and a question of whether local governments may require handguns be disabled or locked up when they are not being carried. Read a wrap-up from SCOTUSblog.

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Supreme Court Reverses Prior Intermediate Decisions Concerning Disclosures of Good Faith

TIMOTHY DAVIS EX REL. KATHERINE MICHELLE DAVIS v. MICHAEL IBACH, MD, ET AL.
Court: TN Supreme Court

Attorneys:

Charles M. Agee, Jr., and W. Lewis Jenkins, Jr., Dyersburg, Tennessee, for the appellee, Timothy Davis, as surviving spouse and next of kin of Katherine Michelle Davis, deceased.

Timothy G. Wehner and Ashley D. Cleek, Jackson, Tennessee, for the appellant, Michael Ibach, MD.

Robert A. Talley and Jennifer S. Harrison, Memphis, Tennessee, and Hubert B. Jones, Dyersburg, Tennessee, for the appellant, Martinson Ansah, MD.

Judge: BIVINS

The Plaintiff filed a medical malpractice action against the Defendants. Following the Defendants? motions to dismiss the action, asserting that the certificate of good faith was noncompliant with the requirement in Tennessee Code Annotated section 29-26-122(d)(4) (Supp. 2008), the trial court granted the Plaintiff?s request to voluntarily dismiss the action. The Defendants appealed, and the Court of Appeals affirmed the order of the trial court. We granted review to determine whether the requirement of Tennessee Code Annotated section 29-26-122(d)(4) that a certificate of good faith filed in a medical malpractice action disclose the number of prior violations of the statute by the executing party also requires disclosure of the absence of any prior violations of the statute. We hold that it does not. Accordingly, the judgment of the Court of Appeals is affirmed.

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Court to Hear 6 Cases This Week

The Tennessee Supreme Court has six cases set for oral argument this week. Among the issues involved are termination of a mother’s parental rights by default judgment, whether the Tennessee Department of Revenue can impose a variance on the formula used to compute taxes, whether the city of Nashville can sue the Board of Zoning Appeals over a decision to convert static billboards to digital billboards, whether retaliatory taxes violate the state constitution and whether state law eliminates the distinction between medical and ordinary negligence claims when a health care provider is sued. The sixth case is an appeal of a Board of Professional Responsibility recommendation for discipline against a Memphis lawyer.

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Dismissal of House Fire Case Fails on Issues of Duty and Statute of Repose

WILLIAM TIMOTHY HAYES, ET AL. V. COOPERTOWN’S MASTERSWEEP, INC.
Court: TN Court of Appeals

Attorneys:

Russell E. Reviere, Jonathan D. Stewart, and Brandon W. Reedy, Jackson, Tennessee, for the appellants, William Timothy Hayes and Stephanie Hayes.

Leland M. McNabb, Pam Warnock Blair, and Andrew J. Droke, Memphis, Tennessee, for the appellee, Coopertown?s Mastersweep, Inc.

Judge: ARMSTRONG

This is an appeal from the grant of two motions for directed verdict. Appellants contracted with Appellee chimneysweep company to redesign and reconstruct portions of their fireplace and chimney to address a problem with smoke escaping into the den, upper floors, and attic. More than a year after the construction was completed, Appellants? home was damaged by a fire, which started when wood flooring joists in close proximity to the firebox ignited. Appellants brought claims for negligence and breach of contract against Appellee. The case was tried before a jury. At the close of Appellants? proof, the trial court granted the Appellee?s motions for directed verdict on the ground that the Appellants had failed to establish that the Appellee owed them a duty of care to conduct a destructive investigation of the safety of the Appellants? fireplace and also on the ground that the suit was barred by the applicable statute of repose. We affirm and remand.

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Supreme Court Reverses Lower Courts' Decision to Disallow Testimony from Expert on Informed Consent

IKE J. WHITE III v. DAVID A. BEEKS, M.D.
Court: TN Supreme Court

Attorneys:

H. Franklin Chancey, Cleveland, Tennessee, for the appellant, Ike J. White III.

Richard A. Smith and Stacy Lynn Archer, Chattanooga, Tennessee, for the appellee, David A. Beeks, M.D.

Judge: LEE

The issue in this health care informed consent case is whether the trial court erred by limiting the testimony of plaintiff patient’s expert witness regarding the risks that the defendant doctor was required to disclose to obtain the patient’s informed consent for surgery. The doctor performed a spinal fusion on the patient. His back pain initially improved, but subsequently worsened. The patient sued the doctor, claiming his back pain was caused by nerve compression due to ectopic bone growth at the site of the fusion. The patient alleged that the doctor failed to give him adequate information to enable him to give an informed consent to the surgery. In a pretrial deposition, the patient’s expert testified that to obtain informed consent, the doctor was required to advise the patient that he would use a bone-grafting protein and inform the patient about all the potential risks arising from its use, including risks that allegedly caused harm and risks that did not cause harm. The trial court granted the doctor’s motion to limit the patient’s expert witness testimony to only those risks that allegedly materialized and injured the patient. The jury returned a verdict in favor of the doctor. In a divided opinion, the Court of Appeals affirmed the trial court’s exclusion of the expert medical testimony. We hold that the trial court erred by excluding expert testimony regarding undisclosed medical risks that had not materialized. Because this error, more probably than not, influenced the jury’s verdict, the patient is awarded a new trial.

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Court Brings Arguments to Boys and Girls State

The Tennessee Supreme Court will hold oral arguments before hundreds of high school students next week. At Boys State, held May 27 at Tennessee Technological University in Cookeville, the court will consider cases involving unlawful search and seizure and whether an employer can refuse to hire someone who previously filed a workers’ compensation claim. At Girls State, held May 28 at Lipscomb University, the court will hear cases involving termination of parental rights and whether records related to the Vanderbilt rape case should be released to the public. The AOC has more on the cases.

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Fungal Meningitis Victims to Share $200 Million

A $200 million settlement has been reached to pay out claims in the 2012 nationwide outbreak of fungal meningitis that was first detected in Nashville and was traced to an injectable steroid made by Massachusetts-based New England Compounding Center (NECC). The outbreak sickened 778 people across the country, killing 76, according to an investigation by the U.S. Food and Drug Administration. Tennessee was one of the hardest hit states with a total of 153 people sickened and 16 deaths. Dozens of civil lawsuits from across the country were consolidated into the bankruptcy filing of NECC. About 3,770 people nationwide have filed claims against the company. The Tennessean has the story.

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4 Cancer Charities Sued for Alleged $187M Scam

Tennessee, along with the Federal Trade Commission and every other state in the country, has filed a joint federal lawsuit against four cancer charities with ties to East Tennessee, the Nashville Business Journal reports. The suit alleges that the charities – Cancer Fund of America, Children’s Cancer Fund of America, Cancer Support Services and The Breast Cancer Society – scammed donors throughout the country out of more than $187 million.

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Eastern Section Rejects Attempts to Impute Liability From Driver to Owner Via Family Purpose, Negligent Entrustment and/or Statutory Agency

DANA A. DANIELS v. NATALIE HUFFAKER ET AL.
Court: TN Court of Appeals

Attorneys:

William A. Hotz and Jeffrey H. Glaspie, Knoxville, Tennessee, for the appellant, Dana A. Daniels.

Beverly D. Nelms, Knoxville, Tennessee, for the appellee, Keith Norris.

Judge: FRIERSON

This case involves an automobile accident in which the plaintiff?s vehicle was struck by an oncoming pick-up truck when the truck?s driver attempted to turn left in front of the plaintiff?s vehicle. The plaintiff suffered injuries to her neck and back, as well as significant damage to her vehicle. The plaintiff brought this action, alleging negligence against the driver of the truck and negligent entrustment against the truck?s owner, who was the defendant driver?s brother-in-law. The plaintiff also alleged that the truck?s owner was vicariously liable for damages under the family purpose doctrine. The driver of the truck was never successfully served with process and is not a party to this appeal. The defendant owner of the truck filed a motion for summary judgment. Following a hearing, the trial court granted summary judgment in favor of the defendant owner. The plaintiff appeals. Discerning no reversible error, we affirm.

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A Divided Western Section Rejects Timeliness of Claims Commission Proceedings

BARBARA MCGINNIS v. STATE OF TENNESSEE
With dissenting opinion.
Court: TN Court of Appeals

Attorneys:

Michael Don Harrell, Memphis, Tennessee, for the appellant, Barbara McGinnis.

Herbert H. Slattery, III, Attorney General and Reporter, Andree S. Blumstein, Solicitor General, and Rebecca Lyford, Senior Counsel, Nashville, Tennessee, for the appellee, State of Tennessee.

Judge: ARMSTRONG

This is an interlocutory appeal of the Tennessee Claims Commission?s denial of Appellant State of Tennessee?s motion to dismiss the Appellees? appeal of the denial of her tort claim by the Division of Claims Administration. Appellee filed her notice of appeal with the Commission 91 days after notice of the denial of her claim. Although Tennessee Code Annotated Section 9-8-402(c) allows only 90 days for a party to appeal the denial of his or her claim, the Commission applied Tennessee Rule of Civil Procedure 6.05 to enlarge the time by three days and, thus, held that Appellees? notice of appeal was timely. We conclude that Tennessee Rule of Civil Procedure 6.05 is inapplicable to this case. Accordingly, we hold that Appellees? appeal was not timely filed so as to confer jurisdiction over her claim to the Commission. Because the Commission lacked jurisdiction, the State was entitled to dismissal of the appeal. Reversed and remanded with instructions.

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STAFFORD dissenting

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Western Section Breathes New Life Into Case Dismissed for Failure to File Return on Service Within 90 Days

HENRIETTE M. FISHER v. CHANDRANITA M. ANKTON
Court: TN Court of Appeals

Attorneys:

Rachael E. Putnam, Memphis, Tennessee, for the appellant, Henriette M. Fisher.

William M. Jeter, Memphis, Tennessee, for the appellee, Chandranita M. Ankton.

Judge: STAFFORD

Plaintiff filed suit against defendant alleging negligence resulting in an automobile accident. Plaintiff procured issuance of multiple summonses, but did not return the final summons within ninety days after its issuance. Defendant filed a motion to dismiss asserting insufficiency of process, insufficiency of service of process, and expiration of the statute of limitations. The trial court granted defendant?s motion and concluded that Tennessee Rules of Civil Procedure 3 and 4.03 required dismissal when a plaintiff failed to file a return of proof of service within ninety days. Based on this finding, the trial court also concluded that plaintiff had intentionally delayed service. We reverse in part, vacate in part, and remand.

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