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Fisher v. Ankton

Court of Appeals of Tennessee, Memphis

May 5, 2015

HENRIETTE M. FISHER
v.
CHANDRANITA M. ANKTON

Session Date February 25, 2015

Appeal from the Circuit Court for Shelby County No. CT00259312 James F. Russell, Judge

Rachael E. Putnam, Memphis, Tennessee, for the appellant, Henriette M. Fisher.

William M. Jeter, Memphis, Tennessee, for the appellee, Chandranita M. Ankton.

J. Steven Stafford, P.J., W.S., delivered the opinion of the Court, in which Arnold B. Goldin, J., and Brandon O. Gibson, J., joined.

OPINION

J. STEVEN STAFFORD, JUDGE

Facts

Complaint and Attempts to Serve

On June 13, 2012, Henriette M. Fisher filed a complaint in the Circuit Court of Shelby County against Chandranita M. Ankton. In her complaint, Ms. Fisher alleged that Ms. Ankton negligently operated her vehicle, causing it to collide with Ms. Fisher's vehicle and resulting in physical injuries to Ms. Fisher. At the time she filed her complaint, Ms. Fisher had a summons issued by the clerk ("First Summons").[1] 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: 297 Holland Road, Holly Springs, MS 38635; and 131 Holland Road, Holly Springs, MS 38635. 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 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[2] 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. As discussed below, Ms. Fisher did not file the unclaimed copy of the Third Summons mailed to 2153 West River Trace Drive until after Ms. Ankton filed her motion to dismiss.

Motion to Dismiss and Response

On June 27, 2013, Ms. Ankton filed a motion to dismiss Ms. Fisher's complaint on the basis of insufficiency of process, insufficiency of service of process, and expiration of the statute of limitations.[3] On August 1, 2013, Ms. Fisher responded by filing a motion to strike Ms. Ankton's motion to dismiss, or in the alternative, a response to Ms. Ankton's motion to dismiss.[4] Ms. ...


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