Tennessee Chancellor Grants Interlocutory Review in Case Involving Hague Convention
A Tennessee Chancellor, Larry B. Stanley, recently granted interlocutory review to a firm client in a case involving application of the Hague Convention.
The case, Hockley Holdings, Inc. v. John Simioni, Chancery Court for Van Buren County, Tennessee, pits two Canadian citizens against each other in a dispute related to a failed log home development. At the outset, Chancellor Stanley said that no one had likely attempted to apply the Hague Convention in a Van Buren County case, where the little town of Spencer serves as the county seat. The county is home to part of Fall Creek Falls Tennessee State Park and 5,000 residents.
The plaintiffs initially attempted service on the defendant through a private process server in Ontario, Canada. In response, we filed a Motion to Dismiss based, inter alia, on the fact that Ontario does not recognize service of process through anyone but the Central Authority. Rather than causing the Tennessee court to issue an Alias summons, as is required, the plaintiffs attempted to “re-issue” their original summons and tried to serve the defendant through the Central Authority in Ontario.
After making a couple of attempts at service on the defendant at his residence, the plaintiffs next contended that the defendant “voluntarily” retrieved the service papers from the Central Authority. While, if proven, this might constitute good service of process in Tennessee, we argued that under a strict interpretation of the Ontario Rules of Civil Procedure, as required by Ontario precedent, this second attempt at service was also invalid.
The Chancellor initially disagreed with our arguments, finding that service was likely valid because the defendant probably received actual notice of the lawsuit papers on two separate occasions. However, on further review, we relied upon Canadian authority, including Kahn Resources, Inc. v. Atomredmetzoloto JSC, 2013 ONCA 189, which holds that even actual notice of the papers does not constitute good service in Ontario. See also Sistem Muhendislik Insaat Sanayi Ve Ticaret Anomic Sirketi v. Kyrgyz Republic, 2015 ONCA 447.
In the face of vigorous opposition by the plaintiffs, Chancellor Stanley granted our request for interlocutory review to the Tennessee Court of Appeals and stayed the case pending further review by that court. While the appellate court does not have to take the case, we are certainly hopeful that it will do so.