HENRIETTE M. FISHER
Session June 27, 2017
from the Circuit Court for Shelby County No. CT-002593-12
Robert Samual Weiss, Judge
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
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Reversed and Remanded
Rachael E. Putnam and Austin T. Rainey, Memphis, Tennessee,
for the appellant, Henriette M. Fisher.
William M. Jeter, Memphis, Tennessee, for the appellee,
Steven Stafford, P.J., W.S., delivered the opinion of the
court, in which W. Neal McBrayer and Brandon O. Gibson, JJ.,
MEMORANDUM OPINION 
STEVEN STAFFORD, JUDGE.
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
At the time she filed her complaint, Ms. Fisher had a summons
issued by the clerk ("First
Summons"). 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
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
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
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
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 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
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).
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.
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 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. 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.
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 raises two issues on appeal, which are taken from her
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 ...