Service of Process: You Must Actually Serve the Defendant

7.26.10    By Bob Mendes    Tags ,

In the “master of the obvious” category of legal opinions, we have Profitt v. Smoky Mountain Woodcarvers Supply, Inc., 2010 WL 1240975 (Tenn. Ct. App. Mar. 31, 2010). Here, the Tennessee Court of Appeals ruled that, absent service of process on the defendant pursuant to Rule 4 of the Tennessee Rules of Civil Procedure, the trial court did not have personal jurisdiction over the defendant. The Court reaffirmed the principle it stated in Watson v. Garza, 2008 WL 4831300 — there is “no authority in support of [the] contention that . . . ’second-hand’ or ‘passed along’ service of process is authorized under the Rules of Civil Procedure.”

In Profitt, the plaintiff claimed to be a 25% shareholder in the defendant corporation. Profitt sent a request for corporate records to defendant’s counsel under T.C.A. §48-26-102. There was no response. Then, Profitt filed a petition with the Circuit Court for Blount County under T.C.A. § 48-26-104(a) for the trial court to “summarily order inspection and copying of the records demanded.” Neither this petition nor a summons was ever served on the defendant. Instead, it was sent to defendant’s counsel, who repeatedly stated to the plaintiff that he did not have authority to accept service of process.

Profitt took the position that, because T.C.A. §48-26-104(a) gives the trial court the power to “summarily order” the production of the documents, and because defendant had actual notice of the petition filed with the court, no service of process on the actual defendant was necessary. The trial court agreed.

On appeal, the defendant corporation argued “that it defies logic and due process that an unserved ‘petition’ can be acted upon ’summarily’ without an opportunity to defend when the law provides for an answer to the complaint.” The Court of Appeals agreed and reversed the trial court. The case was “remanded to the trial court for further proceedings consistent with this opinion.” Presumably, the plaintiff will now serve the defendant with a copy of the summons and complaint.



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