               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                             September 21, 2016 Session

                   REGIONS BANK v. CHAS A. SANDFORD

              Appeal from the Chancery Court for Williamson County
                    No. 2014CV43474 Michael Binkley, Judge
                     ___________________________________

             No. M2015-02215-COA-R3-CV – Filed November 16, 2016
                    ___________________________________

This appeal arises from the trial court‟s entry of a default judgment in favor of the
plaintiff. The plaintiff bank filed a complaint seeking a judgment against the defendant
on a sworn account. After several attempts, the plaintiff was unable to obtain personal
service of process on the defendant and attempted to obtain service of process by mail.
The plaintiff‟s process server sent the summons by certified mail to the defendant‟s
residential address, and the mailing was returned marked “unclaimed.” The plaintiff filed
proof of service, indicating that service had been properly completed pursuant to
Tennessee Rule of Civil Procedure 4.04(11), and filed a motion for default judgment. A
copy of the motion for default judgment was sent by mail to the defendant at the same
residential address. The defendant filed a response “by special appearance” opposing the
bank‟s motion for default judgment based on insufficiency of service of process.
Following a hearing, the trial court entered a default judgment in favor of the plaintiff.
The defendant appealed. On appeal, we conclude that the trial court entered a default
judgment in violation of Tennessee Rule of Civil Procedure 4.04(10), which expressly
provides, “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[.]” We therefore vacate the trial court‟s order entering a default judgment in
favor of the plaintiff and remand this matter for further proceedings.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated
                                  and Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which J. STEVEN
STAFFORD, P.J., W.S., and KENNY ARMSTRONG, J., joined.

Larry L. Crain, Brentwood, Tennessee, for the appellant, Chas Alan Sandford.

Christopher W. Conner and John M. Jackson, III, Maryville, Tennessee, for the appellee,
Regions Bank.
                                       OPINION

                      BACKGROUND AND PROCEDURAL HISTORY

       This action commenced on August 22, 2014 when Regions Bank filed a complaint
on a sworn account against Chas A. Sandford in the Williamson County Chancery Court.
The complaint alleged that Mr. Sandford was indebted to Regions Bank in the sum of
$153,274.13 as evidenced by a sworn account attached as an exhibit to the complaint.
The complaint alleged that Mr. Sandford had not paid the balance of the debt owed
despite demands for payment. On the same day the complaint was filed, the trial court
clerk issued a summons for service on Mr. Sandford at his residential address on Guy
Ferrell Road in Franklin, Tennessee. On October 20, 2014, counsel for Regions Bank
returned the summons unserved with a notation indicating that the process server was
unable to make contact with Mr. Sandford after 11 attempts.

        The court clerk issued an alias summons on November 21, 2014. On April 23,
2015, Regions Bank returned the alias summons with a notation indicating that the
process server received it on December 21, 2014 and attempted service of process by
certified mail. The attached United States Postal Service return receipt reflected that the
alias summons was sent by certified mail to Mr. Sandford at his residential address on
December 22, 2014, and it was returned on March 5, 2015 stamped with the following
notations: “Return to Sender,” “Unclaimed,” and “Unable to Forward.” Along with the
alias summons, Regions Bank filed an affidavit indicating that service had been properly
completed pursuant to Tennessee Rule of Civil Procedure 4.04(11).

       On May 18, 2015, Regions Bank filed a motion for default judgment. In the
motion, Regions Bank indicated that Mr. Sandford was served with the alias summons
and a copy of the complaint on March 4, 2015. Copies of the motion for default
judgment and the corresponding notice of hearing were sent to Mr. Sandford‟s residential
address. On September 14, 2015, Mr. Sandford filed a response “by special appearance
only for purposes of contesting service of process in this case” in which he opposed the
motion based on Regions Bank‟s failure to obtain personal service. The trial court
conducted a hearing on Regions Bank‟s motion for default judgment on September 25,
2015. Mr. Sandford did not appear at the hearing, and the trial court granted the motion.
On October 8, 2015, the trial court entered a written order granting a default judgment in
favor of Regions Bank and against Mr. Sandford in the amount of $153,274.13.
Thereafter, Mr. Sandford timely filed a notice of appeal to this Court.




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                                         ISSUES

         Mr. Sandford raises the following issues on appeal, restated from his appellate
brief:

   1. Whether the trial court erred in entering a default judgment against Mr.
      Sandford based on service of process by certified mail returned with the
      notation “unclaimed.”

   2. Whether Regions Bank failed to effectuate valid service of process because
      the process server failed to serve Mr. Sandford with a copy of the summons
      within 90 days after its issuance as required by Tennessee Rule of Civil
      Procedure 4.03.

   3. Whether Regions Bank failed to effectuate valid service of process because
      the process server failed to “promptly make proof of service to the court” as
      required by Tennessee Rule of Civil Procedure 4.03.

   4. Whether the entry of a default judgment against Mr. Sandford based on
      service of process by certified mail returned with the notation “unclaimed”
      violated Mr. Sandford‟s due process rights under the United States
      Constitution.

                                 STANDARD OF REVIEW

       On appeal, we review a trial court‟s decision to enter a default judgment for an
abuse of discretion. State ex rel. Jones v. Looper, 86 S.W.3d 189, 193 (Tenn. 2000). As
such, the trial court‟s decision to enter a judgment by default will not be reversed unless
it appears that the trial court abused its discretion in reaching the decision. Eldridge v.
Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001). A court abuses its discretion when it applies
an incorrect legal standard or reaches a decision that is against logic or reasoning that
causes an injustice to the complaining party. First Cmty. Bank, N.A. v. First Tenn. Bank,
N.A., 489 S.W.3d 369, 402 (Tenn. 2015).

                                       DISCUSSION

       The issues Mr. Sandford advances on appeal challenge whether Regions Bank
effectuated valid service of process sufficient to support the entry of a default judgment.
Service of process is the method by which a court ensures that defendants have adequate
notice of pending legal proceedings being brought against them. See Garland v.
Seaboard Coastline R.R. Co., 658 S.W.2d 528, 530 (Tenn. 1983). It is an essential step
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in the proceeding because it is also the procedural mechanism through which the court
acquires personal jurisdiction over the defendant. Haley v. Univ. of Tenn.-Knoxville, 188
S.W.3d 518, 522 (Tenn. 2006). “The record must establish that the plaintiff complied
with the requisite procedural rules, 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 v. Garza, 316 S.W.3d 589, 593 (Tenn. Ct.
App. 2008).

       The initiation of a civil action in Tennessee is governed by the Tennessee Rules of
Civil Procedure. Id. The rules provide that all civil actions are commenced by the filing
of a complaint with the court clerk. Tenn. R. Civ. P. 3. After the complaint is filed, the
court clerk is responsible for issuing a summons. Tenn. R. Civ. P. 4.01. A summons is
basically a formal written notice to the defendant to appear and answer the plaintiff‟s
complaint. See Tenn. R. Civ. P. 4.02. The court clerk must ensure that the summons and
necessary copies of the complaint are delivered to a person authorized to serve process on
the defendant. Tenn. R. Civ. P. 4.01. The process server is then responsible for serving
the summons on the defendant in compliance with Tennessee Rule of Civil Procedure
4.04. Id. That rule sets forth the appropriate manner of serving process on various
enumerated categories of defendants who may be subject to service of process in
Tennessee. Tenn. R. Civ. P. 4.04(1)-(11). At the time of the events at issue, it provided
for service of process by mail 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. . . . 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. . . . 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
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        letter is “unclaimed,” or other similar notation, is sufficient evidence of the
        defendant‟s refusal to accept delivery.

Tenn. R. Civ. P. 4.04(10)-(11) (emphasis added).1

        As the foregoing reflects, Tennessee Rule of Civil Procedure 4.04(10) expressly
states that a default judgment cannot be based on service of process by mail unless the
record contains a return receipt showing personal acceptance by the defendant. The
record before us only contains a return receipt marked “unclaimed.” 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. See, e.g., 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). Regions Bank
acknowledges our past cases holding that Rule 4.04(10) precludes the entry of a default
judgment based on certified mail returned “unclaimed,” but contends that this case is
distinguishable because Mr. Sandford, in submitting a filing in opposition to its motion
for default judgment that “expressly acknowledged not only the proceeding but the
particular motion,” made a “general and unlimited appearance which effectively cured
any defect that may have existed with service.” This argument is without merit. As we
stated previously, “actual notice of the lawsuit is not a substitute for service of process
when the Rules of Civil Procedure so require.” Hall v. Haynes, 319 S.W.3d 564, 572
(Tenn. 2010). Moreover, the adoption of Tennessee Rule of Civil Procedure 12.02 has
largely abolished the distinction between general and special appearances. See Robert
Banks, Jr. & June F. Entman, Tennessee Civil Procedure § 5-6(a), at 5-107 (4th ed.
2015). Rule 12.02 provides that the defense of “insufficiency of service of process,”
among others, “shall be asserted in the responsive pleading,” or “may at the option of the
pleader be made by motion in writing.” Tenn. R. Civ. P. 12.02(4), (5). Once a party
properly raises the defense of insufficient service of process, any other participation in
the lawsuit does not constitute a waiver. Watson, 316 S.W.3d at 599; State ex rel. Barger
v. City of Huntsville, 63 S.W.3d 397, 399 (Tenn. Ct. App. 2001). The record does not
reveal any conduct by Mr. Sandford in the trial court that could constitute a waiver of the
defense of insufficiency of service of process. Indeed, his only participation in the case
prior to entry of the default judgment was his filing “by special appearance only for

1
 Effective July 1, 2016, the former last sentence of Rule 4.04(11) (“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.”) was
deleted. 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.
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purposes of contesting service of process in this case.” We therefore conclude that the
trial court abused its discretion by entering a default judgment based on service of
process by mail with a return receipt marked “unclaimed.”

       In light of our resolution of the foregoing issue, the remaining issues raised on
appeal are pretermitted.

                                      CONCLUSION

       For the reasons stated above, we vacate the trial court‟s entry of a default
judgment in favor of Regions Bank and remand this case for further proceedings
consistent with this opinion. Costs of this appeal are taxed to the appellee, Regions Bank.


                                                 _________________________________
                                                 ARNOLD B. GOLDIN, JUDGE




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