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Fisher v. Ankton

Court of Appeals of Tennessee, Jackson

August 22, 2017


          Session June 27, 2017

         Appeal from the Circuit Court for Shelby County No. CT-002593-12 Robert Samual Weiss, Judge

         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

          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.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which W. Neal McBrayer and Brandon O. Gibson, JJ., joined.




         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 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 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 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

          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 ...

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