Henriette M. Fisher v. Chandranita Ankton ( 2017 )

08/22/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
June 27, 2017 Session
HENRIETTE M. FISHER v. CHANDRANITA ANKTON
Appeal from the Circuit Court for Shelby County
No. CT-002593-12 Robert Samual Weiss, Judge
___________________________________
No. W2016-02089-COA-R3-CV
___________________________________
The trial court dismissed this lawsuit because proper service of process was not
effectuated on the defendant. Because the defendant waived the specific defense relied
upon by the trial court to dismiss this case by failing to comply with Rule 8.03 of the
Tennessee Rules of Civil Procedure, we reverse the decision of the trial court and remand
for further proceedings.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
Remanded
J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the court, in which W. NEAL
MCBRAYER and BRANDON O. GIBSON, JJ., joined.
Rachael E. Putnam and Austin T. Rainey, Memphis, Tennessee, for the appellant,
Henriette M. Fisher.
William M. Jeter, Memphis, Tennessee, for the appellee, Chandranita Ankton.
MEMORANDUM OPINION1
1
Rule 10 of the Rules of the Court of Appeals of Tennessee provides:
This Court, with the concurrence of all judges participating in the case, may affirm,
reverse or modify the actions of the trial court by memorandum opinion when a formal
opinion would have no precedential value. When a case is decided by memorandum
opinion it shall be designated “MEMORANDUM OPINION”, shall not be published, and
shall not be cited or relied on for any reason in any unrelated case.
Background
Plaintiff/Appellant Henriette M. Fisher (“Ms. Fisher”) filed a complaint against
Defendant/Appellee Chandranita Ankton (“Ms. Ankton”) on June 13, 2012, alleging that
Ms. Ankton negligently operated her vehicle resulting in injuries to Ms. Fisher. This
complaint has previously been the subject of a prior appeal to this Court. See Fisher v.
Ankton, No. W2014-00882-COA-R3-CV, 2015 WL 2107752 (Tenn. Ct. App. May 5,
2015) (“Fisher I”). Accordingly, much of the facts herein are derived from our prior
Opinion. The complaint alleged that, based upon information and belief, Ms. Ankton
resided at an apartment on West River Trace Drive, Memphis, TN. According to our
prior Opinion:
At the time she filed her complaint, Ms. Fisher had a summons issued by
the clerk (“First Summons”).[2] The First Summons was directed to Ms.
Ankton at her alleged place of residence of 2153 West River Trace Drive,
Apartment 5, Memphis, TN 38134. Ms. Fisher retained a private process
server, Donald Busby, who unsuccessfully attempted on five occasions to
serve Ms. Ankton with the First Summons. The parties do not dispute that
service of the First Summons was unsuccessful.
On October 1, 2012, Ms. Fisher obtained issuance of a second
summons (“Second Summons”) from the clerk to be served at a different
address via certified mail to 131 Leonard Lane, Holly Springs, MS 38635.
On October 7, 2012, the Second Summons was returned to counsel for Ms.
Fisher with the notation that it was “not deliverable as addressed.”
On October 30, 2012, Ms. Fisher procured issuance of a third
summons (“Third Summons”) from the clerk. The Third Summons was
addressed to Ms. Ankton’s employer, believed by Ms. Fisher to be the
Internal Revenue Service (“IRS”) located at 22 North Front Street,
Memphis, TN 38103. A private process server, James Finney, attempted to
serve Ms. Ankton personally at the IRS building at 22 North Front Street,
on two occasions: October 31, 2012 at 4:02 p.m. and November 3, 2012 at
3:13 p.m. In addition to attempting service at Ms. Ankton’s alleged place of
employment, Mr. Finney also attempted on November 3, 2012 to serve Ms.
Ankton personally at two addresses in Mississippi . . . . Shortly thereafter,
on February 7, 2013, Mr. Finney returned a copy of the Third Summons to
Ms. Fisher’s counsel, after attempting personal service, stating that he
2
According to our prior Opinion: “Ms. Fisher also served State Farm Insurance Company as the
provider of uninsured/underinsured motorist insurance coverage for Ms. Ankton. State Farm answered the
complaint on June 27, 2013. The service of process to State Farm is not an issue in this appeal.” Id. at *1
n.1.
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could not find Ms. Ankton at the IRS building and that there was no record
of her employment there.
When personal service of the Third Summons was unsuccessful, Ms.
Fisher attempted service of the Third Summons via certified mail.
Specifically, Ms. Fisher attempted service via certified mail to the
following three addresses, all of which were mailed on January 25,
2013:(1) 2153 West River Trace, Apartment 5, Memphis, TN 38134, (2) 22
North Front Street, Memphis, TN 38103, and (3) 297 Holland Road, Holly
Springs, MS 38635.
On February 13, 2013, Ms. Fisher’s counsel received signed
Domestic Return Receipts for two of the certified mailings of the Third
Summons, one sent to 297 Holland Road and one sent to 22 North Front
Street (the IRS building). The 297 Holland Road receipt was signed by
“Jake Jeans.” The 22 North Front Street receipt was signed by “Barry
Burk.” Both receipts were dated “2/13/13.” Ms. Ankton’s signature did not
appear on either receipt. Neither Jake Jeans nor Barry Burk indicated in the
provided area on the receipts that they were Ms. Ankton’s “agent[s].”
Melissa Erin Sherman, an employee of Ms. Fisher’s counsel, signed the
return for the Third Summons. On February 18, 2013, Ms. Fisher filed the
above returns with the trial court.
Around this time, Ms. Ankton retained counsel to represent her
although it is unclear how she came to know of Ms. Fisher’s filing of the
complaint. Ms. Ankton’s attorney sent a letter to Ms. Fisher’s attorney
providing that although he had been retained, “we are not representing that
our client has been properly served with process in this matter. We will,
however, advise you as soon as possible if we find that proper service has
not been perfected.”
Several weeks later, on March 30, 2013, the certified mail (sent
January 25, 2013) of the Third Summons sent to 2153 West River Trace
Drive address was returned to Ms. Fisher’s counsel’s law office, with an
indication from the United States Postal Service that the certified mail was
“unclaimed.” Thus, the return of the Third Summons from the certified
mail signed by the named individuals at 22 North Front Street and 297
Holland Road was filed before Ms. Fisher received the receipt from the
certified mail sent to 2153 West River Trace Drive indicating that the mail
was unclaimed.
Fisher I, 2015 WL 2107752, at *1–*2 (footnote omitted).
On June 27, 2013, Ms. Ankton filed a motion to dismiss on the basis of
insufficiency of process, insufficiency of service of process, and expiration of the statute
of limitations. On August 23, 2013, Ms. Fisher filed a motion to strike Ms. Ankton’s
-3-
motion to dismiss on the ground that the defenses had been waived, or in the alternative,
a response in opposition to the motion arguing that service by mail was effective. Ms.
Fisher attached affidavits by the two process servers and an employee of Ms. Fisher’s
counsel. Mr. Busby’s affidavit stated that he had attempted service at the West River
Trace Drive address but had been advised by individuals therein that Ms. Ankton was at
work, out of town, that the individual would not accept service on behalf of Ms. Ankton,
or to send the documents to Ms. Ankton’s divorce attorney. The affidavit from the
employee of the law office representing Ms. Fisher “provided that certified mail had been
sent to Ms. Ankton at 2153 West River Trace Drive and had been returned unclaimed.
The envelope from this mailing was attached to Ms. Fisher’s response and indicates the
United States Postal Service’s designation that the mail was ‘unclaimed.’” Id. at *3.
The trial court entered an order dismissing Ms. Fisher’s lawsuit on April 24, 2013.
In its order:
The trial court found that Ms. Fisher could not rely on the filing date
of her complaint to toll the statute of limitations because the return
accompanying the Third Summons, issued on October 30, 2012, was not
filed with the clerk within ninety days of issuance. Accordingly, because
Ms. Fisher was in contravention of the requirement that the return be filed
within ninety days of a summons’ issuance, the trial court also found that
she had intentionally delayed service of process.
Id. at *3 (footnote omitted).
Ms. Fisher appealed. Id. at *3–*4. In the first appeal of this case, this Court,
applying Fair v. Cochran, 418 S.W.3d 542 (Tenn. 2013), reversed and vacated the trial
court’s judgment, holding that Ms. Fisher was not precluded from relying on the original
commencement of the action to toll the statute of limitations based on her failure to return
the summons to the clerk within ninety days. This Court, however, “render[ed] no
holding as to the validity of service allegedly effectuated upon [Ms. Ankton].” Id. at *8.
No permission to appeal was filed of this Court’s decision in Fisher I, and a mandate
issued on July 15, 2015.
Upon remand, Ms. Fisher propounded written discovery on Ms. Ankton and
subpoenaed her to appear for a deposition. Although Ms. Ankton was purportedly
personally served with the subpoena, she did not appear for the deposition, nor did Ms.
Ankton respond to discovery requests. Instead, on January 28, 2016, Ms. Ankton filed a
second motion to dismiss, again on the bases of insufficiency of process, insufficiency of
service of process, and the expiration of the statute of limitations. As the factual basis for
these defenses with regard to the unclaimed summons mailed to Appellee’s alleged
residence, the memorandum accompanying the motion alleged that the summons was
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defective because: (1) it was issued for private process service, yet served by certified
mail; and (2) the summons was issued to the address of the IRS, where a process server
had indicated that Ms. Ankton did not work.3 Ms. Fisher again responded with a motion
to strike on the basis that the defenses were untimely and a response indicating that
service was effective.
The trial court held a hearing on June 2, 2016. During the hearing, Ms. Ankton
raised, for the first time, the argument that the mailing of the Third Summons was
ineffective because the summons that was mailed was not certified, as purportedly
required by the plain language of Rule 4.04 of the Tennessee Rules of Civil Procedure,
discussed in detail, infra. Ms. Fisher objected to Ms. Ankton’s argument on the basis that
it had not been included in Ms. Ankton’s previously filed second motion to dismiss. The
trial court entered an order granting Ms. Ankton’s motion to dismiss on September 9,
2016. Therein, the trial court specifically found that the “issues raised” in Ms. Ankton’s
second motion to dismiss were not waived because the facts supporting the defenses were
“unknown to the [Ms. Ankton] at the time the original [m]otion to [d]ismiss was filed
because of the delay in filing the returns of service.” The trial court further ruled that the
service by mail signed for by the two unknown individuals was ineffective because the
evidence was insufficient to show that Ms. Ankton was evading service nor was there
evidence to show that the individuals were Ms. Ankton’s agents for service of process.
With regard to the unclaimed service mailed to Ms. Ankton’s alleged residence, the trial
court indicated that the summons was served by mail to Ms. Ankton’s alleged residence
even though it was marked as to be served in person at the IRS. Additionally, the trial
court noted that Rule 4.04 expressly states that the summons to be mailed should be a
“certified copy.” Because the summons mailed to Ms. Ankton’s alleged address was not a
certified copy, the trial court ruled that it too “was not proper service.” The trial court
therefore granted the second motion to dismiss and dismissed Ms. Fisher’s complaint.
Issues Presented
3
Unfortunately, Ms. Ankton’s motion is somewhat unclear. Her motion provides at one point,
verbatim:
In the present case [Ms. Fisher] cannot rely on the filing of the Complaint as
tolling the statute of limitations because [Ms. Fisher] has never completed service of
process on [Ms. Ankton]. The first two summonses, were admittedly never served on
anyone. The third summons
[Ms. Fisher] should not be permitted to rely on the issuance as tolling the statute
of limitations under Rule 3.
Thus, it is not altogether clear what Ms. Ankton intended to argue regarding the service of the
Third Summons.
-5-
Ms. Fisher raises two issues on appeal, which are taken from her appellate brief:
1. Did the trial court err in dismissing Ms. Fisher’s Complaint when the
Ms. Fisher properly served Ms. Ankton by certified mail in
accordance with Tenn. R. Civ. P. 4.04, and Ms. Ankton refused
delivery?
2. Did the trial court err in concluding that the purported defenses of
Ms. Ankton were not waived because the defenses were timely
asserted based upon the return of service?
Standard of Review
The trial court in this case granted Ms. Ankton’s motion to dismiss based on
improper service of process. In considering an appeal from a trial court’s grant of a
motion to dismiss, we take all allegations of fact in the complaint as true and review the
trial court’s legal conclusions de novo with no presumption of correctness. Tenn. R. App.
P. 13(d); Mid-South Indus., Inc. v. Martin Mach. & Tool, Inc., 342 S.W.3d 19,
(Tenn.Ct.App.2010) (citing Owens v. Truckstops of Am., 915 S.W.2d 420, 424
(Tenn.1996)). In addition, when deciding motions to dismiss premised on issues
involving either service or the process of service, a trial court may properly consider
matters outside the pleadings without converting the motion to one for summary
judgment. Milton v. Etezadi, No. E2012-00777-COA-R3-CV, 2013 WL 1870052, at *3–
4 (Tenn. Ct. App. May 3, 2013) (citing McNeary v. Baptist Mem’l Hosp., 360 S.W.3d
429, 436 (Tenn.Ct.App.2011)).
Discussion
As an initial matter, it is important to discuss the scope of this appeal. Here, Ms.
Fisher made several attempts at procuring service on Ms. Ankton, both by certified mail
and private process server. With regard to the Third Summons, certified mailing was
ultimately signed for by two unknown individuals at both a Tennessee and Mississippi
address. In addition, a certified mailing sent to Ms. Ankton’s alleged residence was
returned unclaimed. The trial court granted Ms. Ankton’s motion to dismiss, however,
ruling that none of the three alleged instances of service was proper. On appeal, Ms.
Fisher confines her issue on review only to whether Ms. Ankton was “properly served . . .
by certified mail” and returned as unclaimed. In her reply brief, Ms. Fisher specifically
notes that she did not address “the validity of accepted service by [other individuals] in
her brief.” Ms. Fisher therefore states that “these issues are not before the Court.” We
accordingly confine our review solely to the issue of whether the service by certified mail
that was returned unclaimed in this case was effective, including the issue of whether Ms.
Ankton’s objection to the service was waived.
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Service of process by certified mail is governed by Rule 4.04 of the Tennessee
Rules of Civil Procedure. Rule 4.04, as it existed during the trial court proceedings,
provides, in relevant part:
The plaintiff shall furnish the person making the service with such copies of
the summons and complaint as are necessary. Service shall be made as
follows:
* * *
(10) Service by mail of a summons and complaint upon a defendant may
be made by the plaintiff, the plaintiff’s attorney or by any person
authorized by statute. After the complaint is filed, the clerk shall, upon
request, furnish the original summons, a certified copy thereof and a copy
of the filed complaint to the plaintiff, the plaintiff’s attorney or other
authorized person for service by mail. Such person shall send, postage
prepaid, a certified copy of the summons and a copy of the complaint by
registered return receipt or certified return receipt mail to the defendant. If
the defendant to be served is an individual or entity covered by
subparagraph (2), (3), (4), (5), (6), (7), (8), or (9) of this rule, the return
receipt mail shall be addressed to an individual specified in the applicable
subparagraph. The original summons shall be used for return of service of
process pursuant to Rule 4.03(2). Service by mail shall not be the basis for
the entry of a judgment by default unless the record contains a return
receipt showing personal acceptance by the defendant or by persons
designated by Rule 4.04 or statute. If service by mail is unsuccessful, it
may be tried again or other methods authorized by these rules or by statute
may be used.
(11) When service of a summons, process, or notice is provided for or
permitted by registered or certified mail under the laws of Tennessee and
the addressee or the addressee’s agent refuses to accept delivery and it is
so stated in the return receipt of the United States Postal Service, the
written return receipt if returned and filed in the action shall be deemed an
actual and valid service of the summons, process, or notice. Service by
mail is complete upon mailing. For purposes of this paragraph, the
United States Postal Service notation that a properly addressed
registered or certified letter is “unclaimed,” or other similar notation,
is sufficient evidence of the defendant’s refusal to accept delivery.
Tenn. R. Civ. P. 4.04.4 Rule 4.03 likewise contains requirements applicable to service by
mail:
4
Effective July 1, 2016, Rule 4.04(11) was amended to delete the last sentence noted above, i.e.,
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When process is served by mail, the original summons, endorsed as below;
an affidavit of the person making service setting forth the person’s
compliance with the requirements of this rule; and, the return receipt shall
be sent to and filed by the clerk. The person making service shall endorse
over his or her signature on the original summons the date of mailing a
certified copy of the summons and a copy of the complaint to the defendant
and the date of receipt of the return receipt from the defendant. . . .
Tenn. R. Civ. P. 4.03(b).
Thus, under the version of Rule 4.04 in existence when service was allegedly
accomplished, certified mail returned unclaimed could serve as proper service except in
the event of a default judgment. See Regions Bank v. Sandford, No. M2015-02215-
COA-R3-CV, 2016 WL 6778188, at *3 (Tenn. Ct. App. Nov. 16, 2016) (citing In re
Landon T.G., No. E2015-01281-COA-R3-PT, 2016 WL 890219, at *5 (Tenn. Ct. App.
Mar. 9, 2016); Stitts v. McGown, No. E2005-02496-COA-R3-CV, 2006 WL 1152649, at
*2 (Tenn. Ct. App. May 2, 2006)) (“This Court has consistently held in similar cases that
a return receipt marked “unclaimed” does not show personal acceptance by the defendant
and therefore cannot serve as the basis for entry of a default judgment.”). Here, the
parties disagree as to whether the summons, which was issued to the IRS for private
process service, but ultimately sent by certified mail to Ms. Ankton’s alleged place of
residence, and returned unclaimed, provides effective service in this case.
“Because the trial court’s jurisdiction of the parties is acquired by service of
process, proper service of process is an essential step in a proceeding.” Watson v. Garza,
316 S.W.3d 589, 593 (Tenn. Ct. App. 2008) (citing Stitts v. McGown, No. E2005-02496-
COA-R3-CV, 2006 WL 1152649, at *2 (Tenn. Ct. App. May 2, 2006)). In order to obtain
jurisdiction, the record must show that the plaintiff met all procedural requirements and
“the fact that the defendant had actual knowledge of attempted service does not render
the service effectual if the plaintiff did not serve process in accordance with the rules.”
Watson, 316 S.W.3d at 593 (citing Wallace v. Wallace, No. 01A01-9512-CH-00579,
1996 WL 411627, at *2 (Tenn. Ct. App. July 24, 1996)). “Tennessee law directs that
Rule 4.04 . . . is to be strictly construed.” Hall v. Haynes, 319 S.W.3d 564, 571 (Tenn.
2010) (citing Wallace v. Wallace, No. 01A01-9512-CH-00579, 1996 WL 411627, at *2
(Tenn. Ct. App. July 24, 1996)).
the sentence stating that “For purposes of this paragraph, the United States Postal Service notation that a
properly addressed registered or certified letter is ‘unclaimed,’ or other similar notation, is sufficient
evidence of the defendant's refusal to accept delivery.” As the 2016 Advisory Commission Comment that
accompanies Rule 4.04 explains, “the Postal Service's notation that a registered or certified letter is
‘unclaimed’ is not sufficient, by itself, to prove that service was ‘refused.’ ” Nevertheless, we apply Rule
4.04 as it was written at the time of the events at issue, as both parties utilize the prior version of Rule
4.04 in their appellate briefs.
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To begin, we first address the state of the trial court’s order with regard to the
effectiveness of the service by certified mail in this case. Here, the parties on appeal
largely confine their arguments regarding the substantive merits of Ms. Ankton’s service
of process defense to the question of whether the summons used to serve Ms. Ankton by
certified mail was certified, as Ms. Ankton argues is required by the plain language of
Rule 4.04(10). As such, Ms. Ankton argues that because the service by certified mail did
not include a certified copy of the summons, as purportedly required by Rule 4.03 and
4.04, the service was ineffective. See Tenn. R. Civ. P. 4.03 (stating that “the person
making service shall endorse over his or her signature the date of mailing a certified
copy of the summons”) (emphasis added); Tenn. R. Civ. P. 4.03 (requiring the person
attempting service by mail “send, postage prepaid, a certified copy of the summons” to
the defendant) (emphasis added).
The trial court’s order, however, is not a model of clarity as to the exact basis of
its ruling. Rather, with regard to the service of the summons by certified mail, the trial
court’s order states:
12. Tennessee Rule of Civil Procedure 4.04(10) provides that service of
process may also be effectuated by mail:
Service by mail of a summons and complaint upon a
defendant may be made by the plaintiff, the plaintiff’s
attorney or by any person authorized by statute. After the
complaint is filed, the clerk shall, upon request, furnish the
original summons, a certified copy thereof and a copy of the
filed complaint to the plaintiff, the plaintiff’s attorney or other
authorized person for service by mail. Such person shall
send, postage prepaid, a certified copy of the summons
and a copy of the complaint by registered return receipt
or certified return receipt mail to the defendant. . . .
(Emphasis added).
13. The language of Rule 4.03 “set[s] forth a mandatory requirement rather
than a discretionary ideal that need not be strictly enforced to confer
jurisdiction over a party.” Estate of McFerren v. Infinity Transp., LLC,
197 S.W.3d 743, 748 (Tenn Workers Comp. Panel 2006).
* * *
15. In the case at bar, [Ms. Fisher] did not send a certified copy of the
summons to [Ms. Ankton] along with a copy of the Complaint via certified
mail.
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16. [Ms. Fisher] instead sent a copy of the summons issued to the
Defendant at Internal Revenue Service, 22 N. Front Street, Memphis, TN
38103 with Method of Service noted as Private Process Service which was
eventually returned NTBF, with the notation not at this location.
17. [Ms. Fisher] failed to return the summons timely and have the process
reissued by Certified Mail to any of the three addresses that the copy of the
summons was sent.
18. As such the letter with the uncertified summons returned “Unclaimed”
was not proper service.
19. Two letters with the uncertified summons were signed for by
individuals, however there is nothing in the record to establish that either of
these individuals were authorized agents of [Ms. Ankton] in order to accept
service on her behalf; . . . .
Although the Tennessee Rules of Civil Procedure do not contain an express
requirement that trial courts make findings of fact and conclusions of law in ruling on
motions to dismiss, this Court has previously taken issue with a trial court’s order of
dismissal where the order did not sufficiently explain the basis for the dismissal. See
Huggins v. McKee, No. E2014-00726-COA-R3-CV, 2015 WL 866437 (Tenn. Ct. App.
Feb. 27, 2015). Here, the trial court’s order cites law indicating that it ruled that the lack
of certified copy was fatal to the service of process by certified mail. The trial court also,
however, appears to take issue with the address the summons was issued to and the
method of service noted on the summons, without any law cited to suggest that the trial
court likewise considered this a fatal defect. Given the lack of clarity, Appellant takes
issue with both possible bases for the trial court’s order in her brief to this Court.
Despite the somewhat confusing order entered by the trial court, at oral argument
and in her brief, Ms. Ankton focused almost exclusively on the fact that the summons
sent to Ms. Ankton by certified mail did not constitute a certified copy, as purportedly
required by Rule 4.04. Ms. Ankton’s counsel stated that the unclaimed return of a letter to
Ms. Ankton’s residence, “would be sufficient [under Rule 4.04 as it existed at the time],
except for the fact that that summons has to be certified.”5 In order to clarify the basis of
the trial court’s ruling, the following exchange occurred at oral argument:
Court: This rises or falls on the lack of certified copy and only that
issue.
Counsel: That’s correct . . . .6
5
Ms. Ankton did not concede, however, that the West River Trace Drive address accurately
reflected Ms. Ankton’s residence.
6
Counsel for Ms. Ankton asserted that there was a single exception due to constitutional
concerns. When questioned as to whether a constitutional argument had been raised in the trial court or in
Ms. Ankton’s appellate brief, counsel for Ms. Ankton admitted that the argument was not previously
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Based upon our review of the trial court’s order and Ms. Ankton’s singular focus both in
her appellate brief and at oral argument on the issue of whether a certified copy was
mailed to Ms. Ankton to effectuate service under Rule 4.04(10), we conclude that the
sole basis for the trial court’s determination that the service by certified mail was
ineffective was the lack of certified copy. As such, we confine our review only to the
issue of whether the lack of a certified copy of the summons renders the service by
certified mail ineffective. In re Estate of Boykin, 295 S.W.3d 632, 636 (Tenn. Ct. App.
2008) (noting that, at the appellate level, “we are limited in authority to the adjudication
of issues that are presented and decided in the trial courts”). If the service was ineffective
on this basis, the trial court did not err in dismissing this lawsuit. If, however, this
argument does not serve as a proper basis for rendering the service of process ineffective,
the order of dismissal was in error and this case must be remanded for further
proceedings. As such, we proceed to address this issue.
Here, Ms. Fisher essentially admits that the summons served by certified mail was
not a certified copy but argues that she met the requirements of the rule by serving an
original summons, rather than a copy. Additionally, Ms. Fisher argues that Ms. Ankton’s
objections should be waived because they were not timely lodged. Although in Fisher I
we declined to address Ms. Fisher’s waiver argument on the ground that it had not been
adjudicated by the trial court, see Fisher I, 2015 WL 2107752, at *8, in this case the trial
court made a specific finding that Ms. Ankton’s second motion to dismiss was not
waived because the facts alleged therein were not known until after the filing of the first
motion to dismiss. Accordingly, we begin with a determination as to whether Ms.
Ankton’s objection to improper service of process was waived by Ms. Ankton’s failure to
timely raise the defense.
“Under Rule 12 of the Tennessee Rules of Civil Procedure, every defense to a
claim for relief must either be raised in a responsive pleading or in a written motion.”
Int’l Flight Ctr. v. City of Murfreesboro, 45 S.W.3d 565, 574 (Tenn. Ct. App. 2000)
(citing Tenn. R. Civ. P. 12.02); but see Young ex rel. Young v. Kennedy, 429 S.W.3d
536, 549 (Tenn. Ct. App. 2013) (holding that some defenses are not waived by the failure
to file a pre-answer motion or to include the defense in an answer, such as the defense of
failure to state claim upon which relief can be granted arguing the expiration of the
statute of limitations); Robert Banks, Jr., & June F. Entman, Tennessee Civil Procedure,
§ 5–6(w) ( 3d ed. 2012) (“A pleader should assume, therefore, that the defenses of lack of
personal jurisdiction, improper venue, insufficiency of process, and insufficiency of
raised and essentially withdrew that argument. It is well-settled that constitutional arguments may not be
raised for the first time on appeal. See In re M.L.P., 281 S.W.3d 387, 394 (Tenn. 2009) (“Because Father
did not properly raise this issue in the trial court, he has waived his right to argue this issue for the first
time on appeal.”).
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service of process will be waived if not included in the pleader’s first response to the
complaint, whether it be by answer or a Rule 12.02 motion.”).
As such, “[s]ufficiency of personal service, as required in Rule 4, T.R.C.P., is
subject to challenge under Rule 12.02(5) either in the adverse party’s responsive pleading
or, optionally, by motion to dismiss.” Barker v. Heekin Can Co., 804 S.W.2d 442, 444
(Tenn. 1991). As this Court has explained:
As a general rule, defects in process, service of process, and return
of service may be waived. The Tennessee Rules of Civil Procedure
expressly state that where the issue is not raised properly, the defendant
waives the objection. The failure of a defendant to challenge insufficiency
of process in accordance with Rule 8.03 will constitute a waiver of the
matter raised in a motion. Barker v. Heekin Can Co., 804 S.W.2d 442
(Tenn.1991), accord: Goss v. Hutchins, 751 S.W.2d 821 (Tenn.1988). It is
also generally held that a defendant may also, by his conduct, be estopped
to object that proper service was not made. See generally, 72 C.J.S Process
§ 99 (1987) . . . . Such conduct may include participating in discovery,
Martin v. Mills, 138 F.R.D. 151, 153 (S.D.Ga.1991); Federal Deposit
Insurance Corp. v. Denson, 139 F.R.D. 346, 348 (S.D.Miss.1990), in
addition to failing to raise the issue of insufficiency of service clearly or
with the necessary specificity. See Barker at 443, and Green v. Mapco
Petroleum, Inc., 133 F.R.D. 506 (W.D. Tenn. 1990).
Goodner v. Sass, No. E2000-00837-COA-R3-CV, 2001 WL 35969, at *2 (Tenn. Ct.
App. Jan. 16, 2001) (some citations omitted). Based upon this law, Ms. Fisher asserts that
Ms. Ankton’s motion to dismiss was untimely as it was filed years after the complaint in
this case and approximately seven months after the mandate was issued following Fisher
I.
From our review of this Court’s opinions on this issue, a distinction has emerged.
To be sure, this Court has previously held that a defendant waives the defense of
insufficient service of process and/or insufficient process where the defendant failed to
timely raise the defense and instead “engaged in discovery while waiting for the statute of
limitations to run.” Goodner, 2001 WL 35969, at *2 (involving a one-year delay in
raising the defense). Defendants have likewise not been allowed to raise insufficient
service of process where the motion raising the defense was filed after an answer had
already been filed that did not raise that defense. See Faulks v. Crowder, 99 S.W.3d 116,
124 (Tenn. Ct. App. 2002) (involving the situation wherein the defendant originally
objected to lack of service, but after service was allegedly completed, filed an answer that
did not allege insufficient service of process). On the other hand, a delay in raising the
defense of insufficient service of process will typically not serve to waive the defense
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where the defendant “did not engage in any conduct prior to filing the motion which
would demand that he be estopped from raising the defense.” Watson v. Garza, 316
S.W.3d 589, 599 (Tenn. Ct. App. 2008) (involving a more than one-year delay where the
defendant “did not file a responsive pleading, engage in discovery, or otherwise
participate in the lawsuit”).
While we certainly do not condone Ms. Ankton’s inordinate delay in filing her
motions to dismiss, Ms. Ankton simply did not participate in the lawsuit in such a way as
to prevent her from raising the defense of insufficient service of process. Here, the
complaint was filed on June 13, 2012. No answer was ever filed. See Faulks, 99 S.W.3d
at 124. Rather, the initial motion to dismiss was filed little more than one year after filing
the complaint and clearly raised the defense that Ms. Ankton was not properly served
with process, in addition to the defense that the summonses were not promptly returned.
The trial court thereafter granted the motion to dismiss on the basis that the summonses
were not properly returned. Fisher I, 2015 WL 2107752, at *3. Ms. Fisher appealed that
ruling, and Ms. Ankton unsuccessfully defended the trial court’s ruling in Fisher I. Id. at
*8.
After the mandate was issued by this Court, it is true that Ms. Ankton delayed
some seven months before filing her second motion to dismiss. In Fisher I, however, we
noted that “the validity of service allegedly effectuated upon [Ms. Ankton]” remained an
issue. Id. Moreover, as the trial court correctly found, much of the factual allegations
raised in the second motion to dismiss resulted from Ms. Fisher’s filings in response to
the first motion to dismiss, which therefore could not have been known to Ms. Ankton at
the time she filed her first motion. See Allgood v. Gateway Health Sys., 309 S.W.3d 918,
925 (Tenn. Ct. App. 2009) (noting that a defendant “cannot be expected to include facts
in his answer that were unknown to him”). Finally, we note that during the seven month
time period between the remand from this Court and the filing of the second motion to
dismiss, Ms. Ankton did not engage in discovery or otherwise participate in this case.
Indeed, at oral argument, Ms. Fisher admitted that after the remand from this Court, Ms.
Ankton essentially “did nothing.” In fact, in her appellate brief, Ms. Fisher appears to rely
not on the actions of Ms. Ankton throughout this case, but the various efforts made by
Ms. Fisher to initiate discovery. Given that Ms. Ankton filed no answer and did not
participate in discovery, we conclude that under the holding in Watson, Ms. Ankton’s
delay in filing her second motion to dismiss did not result in the waiver of her defense
under the unique circumstances of this case. See Watson, 316 S.W.3d at 599. The trial
court therefore did not err in ruling that the second motion to dismiss was timely and that
the arguments properly pled therein were not waived.
Our decision regarding the timeliness of Ms. Ankton’s motion, however, does not
end the inquiry into whether waiver applies in this case. Rather, Ms. Fisher also argues
that the basis of the trial court’s ruling, that the service of the Third Summons was
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defeated by the lack of a certified copy, was not raised in Ms. Ankton’s motion and is
therefore waived. We agree. As the Tennessee Supreme Court explained:
Although Rule 12 contains no specificity requirements, Rule 8, which sets
out “general rules of pleading,” clearly does. Rule 8.03 requires that “a
party shall set forth affirmatively facts in short and plain terms relied upon
to constitute ... an avoidance or affirmative defense.”
In challenging the sufficiency of service in this case, [the defendant]
was certainly interposing “an avoidance,” procedurally speaking. In order
to comply with Rule 8.03, it should have included in its motion to dismiss a
recitation of those facts, “in short and plain terms,” upon which it was
relying for dismissal. The failure to do so constitutes a waiver of the matter
raised in the motion.
Barker, 804 S.W.2d at 444. The rule set forth in Barker was more recently applied by
this Court in Allgood v. Gateway Health Sys., 309 S.W.3d 918 (Tenn. Ct. App. 2009). In
Allgood, the defendant filed an answer to the complaint, asserting the affirmative defense
of insufficient service of process. Id. at 920. In support, the answer alleged that “that the
return certifying service of process on [Dr. Hoffman] shows that he was served by the
commissioner of insurance through the U.S. mail.” Id. The defendant later filed a motion
for summary judgment asserting that service was improper because the summons was
served on a person who was not authorized to accept service on his behalf. Id. at 921. The
plaintiffs argued, however, that the defendant waived the defense of insufficient service
of process by failing to state the factual basis supporting the defense in his answer as
required by Rule 8.03.
This Court agreed that the defense had been waived. Citing Barker, this Court
held that the defendant was required to do more than simply indicate “that a possible
defect in the manner of service of process exists.” Id. at 925 (citing Barker, 804 S.W.2d
at 443–44). As the Court explained:
If simply putting the plaintiff on notice that there may be a problem with
service of process were enough to satisfy Rule 8.03, then the Barker Court
would not have found the defense to have been waived, because the
defendant in Barker stated in its answer “[t]hat there has been an
insufficiency of service of process in this cause.” Id. at 443. Barker clearly
holds that mere notice of a possible problem is insufficient to satisfy Rule
8.03. Rather, Rule 8.03 requires that a defendant state the facts that support
the defense.
Allgood, 309 S.W.3d at 925. Thus, this Court held that the defendant’s failure to state the
facts supporting the defense in his first responsive pleading or to amend that pleading
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when the facts supporting the defense became known to him, resulted in waiver of the
defense.
The same is true in this case. Here, Ms. Ankton filed her second motion to dismiss
on January 28, 2016, some two and one-half years after Ms. Fisher filed her corrected
motion containing the copy of the summons returned unclaimed. As such, Ms. Ankton
had full knowledge at the time of the filing of her second motion to dismiss that the
summons used to effectuate service by certified mail was not a certified copy. Despite
this clear notice of the alleged defect in the summons, Ms. Ankton’s second motion to
dismiss simply does not include this as a basis for the insufficient service of process
defense. Indeed, the necessity of a certified copy under Rule 4.04(10) or the lack thereof
of was never mentioned in Ms. Ankton’s motion. Rather, Ms. Ankton raised this
argument for the first time at the June 2, 2016 motion hearing. Although it is true that
issues may be tried by consent, Ms. Fisher’s counsel clearly objected to the argument
regarding the lack of certified copy because it was not included in Ms. Ankton’s second
motion to dismiss. See Tenn. R. Civ. P. 15.02 (“When issues not raised by the pleadings
are tried by express or implied consent of the parties, they shall be treated in all respects
as if they had been raised in the pleadings.”). Clearly, Ms. Ankton failed to comply with
Rule 8.03 in neglecting to plead facts regarding this alleged defect in her second motion
to dismiss.
Moreover, despite Ms. Fisher’s objection to the argument regarding the lack of
certified copy, the trial court’s order did not address whether Ms. Ankton’s failure to
specifically raise this argument in her motion resulted in waiver under Rule 8.03. Rather,
the trial court’s order merely states that:
In the case at bar, the issues raised in the Second Motion to Dismiss are not
waived in light of the fact that the returns of service . . . and [a]ffidavits . . .
were not filed until after the First Motion to Dismiss was filed by the
Defendant[.]”
Thus, the trial court held that the issues raised in Ms. Ankton’s second motion to dismiss
were not waived, but the trial court completely failed to address Ms. Fisher’s argument
that the lack of certified copy issue was not raised in that motion. We cannot likewise
ignore Ms. Fisher’s argument on this issue.
Here, Ms. Fisher appeared before the trial court to defend against a second motion
to dismiss filed seven months after having the initial dismissal of this lawsuit reversed by
this Court. Rather than being required to defend against the allegations actually raised in
the second motion to dismiss, Ms. Fisher was forced to defend against an entirely new
argument—one whose factual basis was completely omitted from Ms. Ankton’s prior
filing. Blindsided by this argument, Ms. Fisher properly objected that the facts that
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provided the basis for Ms. Ankton’s argument were not included in Ms. Ankton’s second
motion to dismiss, only for the trial court to disregard Ms. Fisher’s objection. Based on
the holding in Allgood, however, Ms. Ankton’s failure to plead specific facts in her
motion regarding the lack of a certified copy of the summons clearly renders this defense
waived under Rule 8.03. See Allgood, 309 S.W.3d at 925. The trial court therefore erred
in dismissing Ms. Fisher’s complaint on this basis.
Having determined that Ms. Ankton waived any argument regarding the lack of
certified copy of the summons included in the service attempted by certified mail, we
express no opinion as to whether the failure to utilize a certified copy of the summons in
certified mailing under Rule 4.04(10) renders such service ineffective.7 As the parties
essentially agree that the lack of certified copy was the sole basis for the trial court’s
ruling, we again “render no holding as to the validity of service allegedly effectuated
upon [Ms. Ankton],” specifically as it appears the parties remain in dispute as to whether
the service by certified mail was “properly addressed” as required by Rule 4.04(10). We
note, however, that the trial court found with regard to substitute service that: “[T]here is
nothing in the record to support the allegation that the Defendant was evading service as
there is no indication that the attempts at service were at a valid address or that she
took any active steps to not be served.” (Emphasis added). The record indeed contains no
information regarding what led Ms. Fisher to believe that Ms. Ankton resided at West
River Trace Drive. The record does contain, however, an affidavit indicating that service
was attempted at this address and that individuals therein made some indication that Ms.
Fisher in fact resided at the home. In addition, the complaint specifically alleges West
River Trace Drive as Ms. Ankton’s residence. Because the allegations in the complaint
7
By way of edification, however, we note the following from the Tennessee Practice Series:
Pursuant to Tenn. R. Civ. P. 4.03, the lawyer and the U.S. Postal Service
undertake the tasks of service of process when service by mail is chosen. There are five
steps: (1) The summons (process) is issued for mailing. The court clerk files the
summons and records the filing. The court clerk signs and dates the original summons. A
copy of the summons is certified. Both the original summons and the certified summons
are provided to the lawyer. (2) The lawyer keeps the original summons. The certified
summons and a copy of the complaint are mailed to the defendant by certified or
registered mail. Return receipt is requested. (3) The green card showing receipt is
returned to the lawyer by the U.S. Postal Service. This card is attached to the original
summons. (4) The lawyer fills out the affidavit on the summons. The lawyer records in
the proper spaces, the date the process and complaint were sent certified mail to the
defendant and the date the lawyer received the attached certified receipt in the law office.
(5) The original summons, with green card and affidavit affixed, is filed with the court
clerk.
Nancy Fraas Maclean, et al., Tennessee Practice—Rules of Civil Procedure Annotated § 4:9 (3d
ed. 2000).
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must be taken as true for purposes of a motion to dismiss, it does not appear that
dismissal on this basis is appropriate. See Fisher I, 2015 WL 2107752, at *4 (Tenn. Ct.
App. May 5, 2015) (“In considering an appeal from a trial court’s grant of a motion to
dismiss, we take all allegations of fact in the complaint as true and review the trial court’s
legal conclusions de novo with no presumption of correctness.”). Rather, an evidentiary
hearing may be required to resolve this issue.
Conclusion
The judgment of the Circuit Court of Shelby County is reversed, and this cause is
remanded to the trial court for further proceedings as are necessary and consistent with
this Opinion. Costs of this appeal are taxed against Appellee, Chandranita Ankton, for
which execution may issue if necessary.
_________________________________
J. STEVEN STAFFORD, JUDGE
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