Constructive Service of Process: Not as Good as the Real Thing

One of the most frustrating parts of a lawsuit can be service of process. I know exactly (generally) how long it takes to prepare and to file a Complaint, but, after it’s in the Sheriff’s or private process server’s hands for service, who knows how long that part will take?

And, under current Tennessee law, valid and effective service of process is critical to getting an enforceable judgment.

Last week, the Tennessee Court of Appeals issued an opinion that emphasizes these issues. The case is Theophilus Ebulueme v. Fred E. Onoh (M2018-00742-COA-R3-CV, Tenn. Ct. App., May 24, 2019), and it has some great analysis on jurisdictional issues.

What is the standard of review for a trial court’s decision on relief from a final judgment under Tenn. R. Civ. P. 60.02(3) (i.e. the judgment is “void” due to lack of personal jurisdiction)? Tennessee Courts follow an “abuse of discretion standard” that will be reviewed de novo with no presumption of correctness. Discover Bank v. Morgan, 363 S.W.3d 479, 487 (Tenn. 2012).

A judgment rendered without proper and valid personal jurisdiction is void. “The lawful authority of a court to adjudicate a controversy brought before it depends upon that court having jurisdiction of the subject matter and jurisdiction of the parties.” Turner v. Turner, 473 S.W.3d 257, 268-69 (Tenn. 2015). “Personal jurisdiction refers to the power of a court over the parties to the controversy to render a binding judgment.” Id.

If you don’t have good personal service, then you can’t get a valid judgment. “A court obtains personal jurisdiction over a party defendant by service of process.” Turner, 473 S.W.3d at 271. “A judgment rendered by a court lacking either personal or subject matter jurisdiction is void.” Id.

What about personal service by “constructive service”? Tenn. R. Civ. P. 4.08 provides a limited exception to the requirements of actual, personal service of process, but be careful in dealing with those less favored methods.

For instance, in today’s case, Plaintiff relied on Tenn. Code Ann. § 21-1-203 and § 21-1-204 to obtain service by publication. If you’re going to follow the exception to the general rule, however, you had better strictly comply. (Here, the plaintiff didn’t–those statutes apparently apply only to chancery court disputes and, going a step further, plaintiff published the notices in Montgomery County to serve a defendant who lived in Davidson County.)

The Court of Appeals went on to discuss service by publication generally, noting that “constructive service by publication is permissible only if it is accomplished in a manner reasonably calculated to give a party defendant adequate notice of the pending judicial proceedings” Turner, 473 S.W.3d at 272.

Long story short, if you’re going to rely on the constructive notice provisions: (1) You’d better follow the statutes to the letter; (2) You should have a valid, legal reason for resorting to the disfavored method; and (3) Your constructive notice should be reasonably calculated to give your defendant notice of the suit.