Donna F. Smith Thompson v. Ameriquest Mortgage Company

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
November 15, 2011 Session
DONNA F. SMITH THOMPSON v. AMERIQUEST MORTGAGE
COMPANY
Direct Appeal from the Chancery Court for Crockett County
No. 9415 George R. Ellis, Chancellor
No. W2011-00501-COA-R3-CV - Filed December 5, 2011
Plaintiff filed a complaint seeking to set aside the foreclosure sale of her property. The trial
court dismissed the case based on Plaintiff’s failure to effect service of process on the
Defendant. We affirm.
Tenn. R. App. P. 3 appeal as of Right; Judgment of the Chancery Court Affirmed
and Remanded
D AVID R. F ARMER, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and J. S TEVEN S TAFFORD, J., joined.
Donna F. Smith, Pro se.
MEMORANDUM OPINION 1
This appeal arises from an action filed on October 19, 2010, by Donna F. Smith
Thompson (“Ms. Thompson”) against Ameriquest Mortgage Company (“Ameriquest”) in
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be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited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.
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Crockett County Chancery Court. In her complaint, Ms. Thompson alleged that her
mortgage contract with Ameriquest was unregistered and forged. As such, Ms. Thompson
asked the trial court to declare her mortgage contract null and void and set aside the
foreclosure sale of her property.
The trial court conducted a status hearing to determine whether Ms. Thompson
properly effected service of process on Ameriquest. On February 17, 2011, the trial court
entered an order dismissing the case based on Ms. Thompson’s failure to serve Ameriquest.
Ms. Thompson timely filed a notice of appeal.
Issue Presented
On appeal, the sole issue for our review is whether the trial court erred in dismissing
the action for lack of service of process.
Discussion
We begin our discussion by noting that the record on appeal does not contain a
statement of the evidence or transcript of any of the trial court proceedings. Under
Tennessee Rule of Appellate Procedure 24(b), “the appellant shall have prepared a transcript
of such part of the evidence or proceedings as is necessary to convey a fair, accurate and
complete account of what transpired with respect to those issues that are the bases of appeal.”
Where no such transcript is available, “the appellant shall prepare a statement of the evidence
or proceedings from the best available means, including the appellant's recollection. The
statement should convey a fair, accurate and complete account of what transpired with
respect to those issues that are the bases of appeal.” Tenn. R. App. P. 24(c). In the case at
bar, however, Ms. Thompson filed a notice pursuant to Tennessee Rule of Appellate
Procedure 24(d), stating that she would not be filing a transcript or statement of the evidence.
Consequently, “[i]n the absence of a transcript or statement of the evidence, a presumption
arises that there was sufficient evidence to support the trial court's judgment.” Orlando
Residence, Ltd. v. Nashville Lodging Co., 213 S.W.3d 855, 865 (Tenn. Ct. App. 2006)
(quoting In re Estate of Henderson, 121 S.W.3d 643, 647 n.5 (Tenn. 2003) (citing Mfrs.
Consol. Serv. v. Rodell, 42 S.W.3d 846, 865 (Tenn. Ct. App. 2000))).
After reviewing the record, it appears that Ms. Thompson attempted to serve
Ameriquest by serving the secretary of state pursuant to Rule 4B of the Tennessee Rules of
Civil Procedure.2 “[R]ule 4B(1), in effect, permits service on the secretary of state as the
2
Rule 4B of the Tennessee Rules of Civil Procedure provides in part:
(continued...)
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defendant’s agent for service of process, whenever it is constitutionally permissible for the
courts of the state to exercise personal jurisdiction over the defendant.” Robert Banks, Jr.
& June F. Entman, Tennessee Civil Procedure § 2-5(b), at 2-64 to -65 (3d ed. 2009). The
record contains an affidavit and endorsement from the secretary of state stating that certified
2
(...continued)
(1) Whenever the law of this state permits service of any process, notice, or demand,
upon a defendant outside the territorial limits of this state, the secretary of state may be
served as the agent for that defendant. Service shall be made by delivering to the secretary
of state the original and one copy of such process, notice, or demand, duly certified by the
clerk of the court in which the suit or action is pending or brought, together with the proper
fee. A statement that identifies the grounds for which service on the secretary of state is
applicable must be included.
(2) The secretary of state shall endorse the time of receipt upon the original and
copy and immediately shall promptly send, postage prepaid, the certified copy by registered
or certified return receipt mail to the defendant, along with a written notice that service was
so made. If the defendant to be served is a corporation, the secretary of state shall send the
copy, along with a written notice that service of the original was made, addressed to such
corporation at its registered office or principal office as shown in the records on file in the
secretary of state's office or as shown in the official registry of the state or country in which
such corporation is incorporated. If none of the previously mentioned addresses is available
to the secretary of state, service may be made on any one (1) of the incorporators at the
address set forth in the charter. The secretary of state may require the plaintiff or the
plaintiff's attorney to furnish the latter address.
....
(6) The refusal or failure of a defendant, or the defendant's agent, to accept delivery
of the registered or certified mail provided for in subpart (1), or the refusal or failure to sign
the return receipt, shall not affect the validity of such service; and any such defendant
refusing or failing to accept delivery of such registered or certified mail shall be charged
with knowledge of the contents of any process, notice, or demand contained therein.
(7) When the registered or certified mail return receipt is received by the secretary
of state or when a defendant refuses or fails to accept delivery of the registered or certified
mail and it is returned to the secretary of state, the secretary of state shall forward the receipt
or such refused or undelivered mail to the clerk of the court in which the suit or action is
pending, together with the original process, notice, or demand, a copy of the notice sent to
the defendant corporation and the secretary of state's affidavit setting forth his or her
compliance with this Rule. Upon receipt thereof, the clerk shall copy the affidavit on the
rule docket of the court and shall mark it, the receipt or refused or undelivered mail, and the
copy of notice as of the day received and place them in the file of the suit or action where
the process and pleadings are kept, and such receipt or refused or undelivered mail,
affidavit, and copy of notice shall be and become a part of the technical record in the suit
or action and thereupon service on the defendant shall be complete.
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copies of the summons and complaint were sent by registered or certified return-receipt mail
to Ameriquest along with written notice that service was made. The certified mail was
returned to the secretary of state’s office, however, with the notation “MOVED LEFT NO
ADDRESS.” Thereafter, the secretary of state forwarded the returned mail to the clerk of
the Crockett County Chancery Court.
Although the affidavit seems to comport with the secretary of state’s duties under Rule
4B, we are unable to conclude that Ms. Thompson properly served Ameriquest. Ms.
Thompson fails to provide us with any argument or citation to the record that would support
our reversal of the trial court. In fact, Ms. Thompson’s brief focuses solely on the merits of
her case and asks this Court to rule in her favor despite her failure to properly serve
Ameriquest.3 Moreover, upon thorough review of the record, we note that the address for
Ameriquest provided in the secretary of state’s affidavit differs from the mailing address
listed for Ameriquest on the deed of trust. In light of these inconsistencies, and in the
absence of a transcript or statement of the evidence, we are unable to adequately review the
trial court’s reasons for refusing to accept Ms. Thompson’s attempt to serve the secretary of
state as an agent of Ameriquest. As noted above, when the record on appeal does not contain
a transcript or statement of the evidence, we are “required to presume that the record, had it
been properly preserved, would have supported the action of the trial court.” Allen v. Allen,
No. W2010-00920-COA-R3-CV, 2011 WL 198516, at *3 (Tenn. Ct. App. Jan. 12, 2011)
(citing Reinhardt v. Neal, 241 S.W.3d 472, 477 (Tenn. Ct. App. 2007); Sherrod v. Wix, 849
S.W.2d 780, 783 (Tenn. Ct. App. 1992)). Accordingly, we find no error in the trial court’s
judgment.
Conclusion
For the foregoing reasons, we affirm the judgment of the trial court. Costs of this
appeal are taxed to the Appellant, Donna F. Smith Thompson, for which execution may issue
if necessary.
_________________________________
DAVID R. FARMER, JUDGE
3
Additionally, Ms. Thompson states in her brief that the trial court asked her to attempt to serve
Ameriquest by publication. At oral argument, however, Ms. Thompson admitted that she did not attempt
service by publication because she could not afford to do so at the time.
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