### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

LAMAR C. PELL v. THE CITY OF CHATTANOOGA, ET AL 

### .
Tenn. R. App. P. 3 Appeal from the Chancery Court for Hamilton County

No. 97-0738 Howell N. Peoples, Chancellor

No. E1999-01712-COA-R3-CV - Decided May 9, 2000

Plaintiff’s residential prop erty in Hamilton Coun

ty was sold for deli

nquent property ta

xe s after default judgment was entered against Plaintiff, the property owner. Plaintiff brought suit against the subsequent

tax sale purchaser, and others, to set aside the default judgment and sale, asserting processhad not been serv ed properly on him i

n the delinquent ta

x suit. The Trial Court found that certified mail return rece

ipts signed by Plaintif

f’s wife were s

ufficient p

roof o f service under T.R.C.P. 4.04(10) and T.C.A. § 67-5-2415(e)(1), and granted summary judgment to the tax sale purchaser of the property a

nd the other Defe

ndants. Plaintiff argues on appeal that he was not served properly with process, first arguing that he was not served at all and then arguing that the statutory service procedure relied upon by the Trial Court violates due process. The judgment of the Trial Court is affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgmen t of the Chancery Cour t Affirmed and Remanded
S WINEY , J., delivered the opinion of the court, in which F RANKS and S USANO , JJ. joined. John C. Cavett, Jr.,

Chattanooga, Ten

nessee, for the a

ppellant, Lamar C . Pell.
David B. Kesler, Chattanooga, Tennessee, and Stacie L. Caraway, Chattanooga, Tennessee, for the appellee, Raymond F. Smith, Jr. d/b/a Green Moss Company.
Paul G. Summers, Attorney General and Reporter, and Sean D. Clancy, Assistant Attorney General, for the intervenor, State of Tennessee.

OPINION

Plaintiff/Appellant

Lamar C. Pell (“Plaintiff”) filed suit to set aside the tax sale of his

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residential property in Ham ilton County, along with the default judgment entered in the tax delinquency proceedings bro ught by the City of Cha ttanooga and Hami

lt on C ounty. Defendant/Appellee

Raymond F. Smith, Jr. (“Defendant”), doin g business as Green Moss Company, purchased

the property at issue at the tax sale. The Sta te of Tennessee

intervened to add

ress Plaintiff’s due process challenge to the statutory authorization for the method of service of

process used to initiate the suit th at resulted in def

ault judgmentagainst Plaintiff. The Trial Court granted summary judgment in favor o f Defendant, fi

nding service of p

rocess by certified mail, with evidence filed in the record of a return receipt signed by the spouse of the defendant as authorized by T.C.A. § 67-5-2415(e)(1) through T.R.C.P. 4.04(10). As the record of the Trial

Court shows there are no genuine issues of material fact that the proper statutory procedures were applied in the tax delinquency law suit tha t resulted in defa ult judgment, and the

statutory proced

ures do not violate Plaintiff’s constitutional due process rights, the judgment of the Trial Court is affirmed. Background
Plaintiff owned a residential property in Chattanooga where he resided with his wife and, apparently from time to time, other members of his family. Plaintiff

failed to pay property taxes for the years 1992 through 1995. The City of Chattanooga and Ha milton Cou nty filed suits in Hamilton County Chancery Co urt for collectio

n of the delinquen

t taxes. Notices of the suits for the individual tax yea

rs that we re delinquent were sent by certified mail, addressed to Plaintiff at the property at issue. Return receipts were filed in the Trial Court record bearing the signature of Plaintiff’s spouse, Geri Pel l, dated J uly 30, 1993 and July 28, 1995, the signature of Plaintiff’s brother, Leon P ell, dated February 23, 1994, the signature of Plaintiff’s stepdaughter, Joy Hester, dated August 10, 1994, anda return receipt signed “Lana Pell” dated February 24, 1996. Various other pleadings were s

erved by mail, add

ress ed to Plaint iff at his residen ce, including the d

efault motion and order, and orders relating to the sale of Plaintiff’s property for tax delinquency.

Following entry of

default judgment against Plaintiff, the property at issue was sold to Defendant at the tax sale on June 6, 1996. The present lawsuit was filed July 18, 1997, seeking to set aside the default judgment and tax sale, and naming as parties-defendant the City of Chattanooga

and Hamilton County, as w ell as Defendant. Although acknowledging delinquency of the property taxe

s and that his b

rother had signed the certified mail return receipt, Plaintiff asserted in his complaint that he “never received a copy of the Summons from his brother, Leon Pell,
nor anyone else.” Plaintiff further asserted that he wa s unaware of the tax sale until contacted by Defendant by telephone in June or July of 1997.

The Attorney General filed his Motion To Intervene to defend the con

stitutionality of T.C.A. § 67-5-2415(e)(1). The Trial Court granted the motion and allowed the Attorney General to participate

for the purposes of defending the constitutionality of T.C.A. § 67-5-2415(e)(1). After resolution of

other procedural matters not relevant to the issue on appeal, the Trial Court granted Defendant’s motion for summary judgment. The Trial Court found that the proper procedures under the relevant statutory authority, T.C.A.§ 67-5-2415(e)(1), had been followedin the original law suit, t hat the defau lt judgment was vali dly entered in tha

t lawsuit, and that D

efendant was en

titled to judgmentas a matter of law. The Trial Court by later order clarified that its earlier summary

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judgmentwas intended to be in favor of all

the Defendants,

and specificall

y ordered the ca

se against the City of Chattanooga and Hamilton County as well as Defendant be dismissed. It is fro m this summary judgment tha

t Plaintiff appeal

s.
Discussion
The only issue on appea

l is whether Plaintif

f was properly

served with process in the lawsuit that resulted in the sale of Plaintiff’s proper ty for tax d elinquency. As this issue was resolvedin the Trial C o urt by summary judgment, the material facts were not in dispute, and the issue posed is a que

stion of law, our sta

ndard of review

is de novo

. Our review of the trial court's grant of summary judgment is purely a question of law; accordingly, our review is de novo , andno presumption of correctness attaches to the lowerco urts' judgments. A su mmary judgment is ap

propriate only if

the mo vin g partyshows that no genuin e and material fa

ctual issue exists a

nd that he or sh

e i s entitled to relief as a mat ter of law. In re

viewing the reco

rd to determi

ne whether summary judgment require ments have been met, we must view the evide

nce in the lightmost favorable to the

nonmoving party an

d must draw all reasonable inferences in the nonmoving party's favor. Byrd v. Hall, 847 S.W.2d 208, 210-11 (Tenn.1993). A summary judgment may be proper, therefore, only "when there is no dispute over the evidence establishing the facts that control the application of a rule of law."Id. at 214-15; Tenn. R. Civ. P. 56. Eyring v. Fort Sanders Parkwest Medical Center , 991 S.W.2d 230, 236 (Tenn. 1999).
Plaintiff

argues that T.C.A. § 67-5-2415(e)( 1) violates his due process rights

relating to service of process in that Plaintiff was due personal service of the summons for the Trial Court to obtain jurisdicti

on. The statute, in

relevant part, r

eads: (a) The defendant , when s erved in any mann er according to t

he Rules of Civil Procedure, either by mail

or in person, does not have to be served with a copy of the complaint and exhibit and instead, the clerk may issue a no t ice to accompany the
summons. (b) The notice shall id

entify the suit ment

ioned in the summons sufficiently to en able the taxpayer to know what delinquent taxes the taxpayer is being sued for and what property is being subject to the lien.
* * * * (e) In all counties, per sonal service of process on the defendant may be dispensed withand the summons and notice may be sent by certified or registered mail, return receipt requested.

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(1) The return of the receipt signed by the defendant, spouse , or other person deemed appropr iateto receive summons or notice as provided for in the Rules of C ivi l Procedure, or its return marked "refuse d," evidenced by a

ppropriate

notation of such fact by the po stal au thorities, and file d as a part of the r

ecord by the cle

rk, with notation on the docket of the true facts, shall be evidence of personal notice.
* * * * T.C.A. § 67-5-2415 (emphasis added).
This statutory procedure for service of process by mail in lieu of personal service upon a defendant is authorized by T.R.C.P. 4.04(10):
The plaintiff shall fu

rnish the person ma

king the service w

ith such cop ies of the summons and complai

nt as are necess

ary. Service sha

ll be made as follow

s:
* * * * (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 bystatute. After the complaint is filed, the clerk shall, upon request, furnish the original summons, a certified copy thereof and a copy of the filed complaint to the plaintiff, the plaintiff's attorney or other authorized person fo r ser vice by mail. Such person shall send, postage prepaid, a c ertif

ied copy of the summons and a copy of the complaint by registered return receipt or certified return receipt mail to the defendant. The original
summons shall be used for return of serv ice of process pursuant to Rule 4.03(2). Service by mail shall not be the basis for the entry of a judgmentby 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 unsuccessf ul, it may be tried again or other methods authorized by these rules or

by statute may be used. T.R.C.P Rule 4.04 (emphasis added).
Withoutciting any authority that holds service of proc ess under the undi

sputed facts of this case to be improper, Plaintiff argues that the mere fact that the certified mail receipt was not signed by Plaintiff, as the defendant in the tax delinquency lawsuit, violates due process. Plaintiff also poses a

straine d argument that T.C.A. § 67-5-2415(e)(1) only authorizes the spouse of a defendant as proper signatory to a certified mail receipt after there is evidence that

the defendant is evading service of proc

ess. Plaintiff cla

ims that “[s]ervice

on an individual other than the defendant is only authorized upon a showing that the defenda nt is attempting to evad

e process,” attr

ibuting this statement to an unpublished opinion of this Court, Third National Bank of Nashville, Tennessee v. Estes , No. 85-142-II, 1986 W L 3155 (Tenn. Ct.App.1986)(perm. App. denied). The Estes opinion is not on point with the issues on appeal as it deals wi th the proper procedure to follow under

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T.R.C.P. Rule 4.04(1). In particular, this opinion discusses the prerequisite findings for invoking alternative ser

vice when the def

endant is evading

service. That qu

estion is not befor

e this Court.
Plaintif f fur ther relies upon his own reading of the statute at issue, and the Chancellor’s citation of an unpublished opinion of this Court, Knowles v. State of Tennessee , C.A. No. 03A01-9606-CH-00209, 1996 WL 668990 (Tenn. Ct. App. 1996)(no perm. app . fil ed), to support his argument. Alon

g with other error

s apparent i

n Pl aintiff’s brief on appeal, Plaintiff misreads the cited statute and related rules of procedure as analyzed and discussed in Knowles

.

Plaintiff argues he was entitled to “personal service” of process, but did not receive personal service. Plaintiff did receive personal serviceunder Tennessee law. Plaintiff argues that T.R.C.P. Rule 4.03(1) requ ires a finding tha

t the party-defe

ndant must be a ttempting to evade processbefore service by mail is appropriate. This argument is un suppo rted by authority, and simply not accurate

under Tennessee

law. T.R.C.P. Rule 4.04 authorizes entry of default judgment when the record of the Trial Court “contains a return receipt showing personal acceptance by the defendant or by persons designated by Rule 4.04 or statute.” Here, where the issue is a proceeding arising from tax delinquency, the statute providing the designation is T.C.A. § 67-5-2415(e)(1). The statute creates three categories of persons whose signa ture may appear on the return rec

eipt to validate entry of default

judgment when ser

vice of process i

s by mail under

T.R.C.P. Rule 4.04, (1) the defendant, (2) the spouse of the defendant, or (3) a person not the defendant or the defendant’s spouse deemed appropriate to receive notice. T he statu te makes such evid ence, when foun

d to appear in the record of the Trial Court, as establishing personal service upon the defendant. From the record before us, we find Plaintiff was served in compliance with T.C.A. § 67-5-2415(e)(1) and T.R.C.P. 4.04(10), w hich finding dispose s of all Plaintiff’s

arguments other t

han his due proce

ss argument, which is next addressed.

The method of persona l se rvice established under T.R.C.P. 4.04(10) and T.C.A. § 67- 5-2415(e)(1),

under the facts o

f this case, does n

ot offend Plaintiff

’s right to due proc

ess.
Basic due process requires “notice reasonably calculated under all the circumstanc

es, to apprise interested parties” of the claims of the opposing parties. Mullane v. Central Hanover Bank & Trust Co ., 339 U.S. 306, 314, 70 S. Ct. 652, 657 94 L.Ed. 865 (1950). The purpose of due process requiremen ts is t o notify the individu al in advancein order to allow adequate preparation and reduce surprise. Memphis Light, Gas & Water Div. v. Craft , 436 U.S. 1, 14, 98 S.Ct. 1554, 1562-63, 56 L.Ed.2d 30 (1978). Sanford v. Tennessee De

pt. of Environment & Conservation , 992 S.W.2d 410, 414- 415 (Tenn. Ct. App. 1998).
The undisputed facts in the record of the Trial Court do not provide any support for Plaintiff’s argument that the service of pro cess metho d used in this case did not provide notice reasonably

calculated under all the circumstances of this case to apprise Plaintiff of the tax1 Plainti ff also a rgues on app ea l that the Chancell or held that

T.C.A. § 67-5-2415(

e)(1) “cr eated a ri

ght to ser

ve the spouse of a defen dant in an y case.” R eview o f the Me moran dum O pinion an d Orde r of the Tr ial Court reve als this argument to be, quite si mply, incorrec t, as the C hancello r specifically addresse d this as a tax d elinquen cy lawsu it brought under t

he appropriat

e statut ory authori

ty. 

### -6- delinquency lawsuit concerning his property. 1 Plaintiff has never asserted that the notices were not sent to his residence.

Notably, Plainti

ff f ailed to mention in his complaint that his spouse had, indeed, signed two certif ied mail return re

ceipts for actio

ns relating to delinquent taxes for two different years, stating only that his brother who sometimes stayed at the house had signed one return receip t. Other return receipts appearing in the record were signed on behalf of Plaintiff by his stepdaughter

who lived on the property at that time, and a “Lana Pell”

whose identity is unclear from the record. As the si

gnature of Plainti

ff’s spouse is

specifically authorized in the statute to establis

h personal service, it is not ne cessary to reach the issue of whether these other signatures would be of
an “other person de

emed appropriat

e to receive summons or notice as provided for in the Rules of Civil Procedure” as provided in T.C.A. § 67-5-2415(e)(1).

Service of process by mail in this type of case has be en found to be within the requirements

of due process by Tennessee courts when the notice is addressed to the defendant

at the defendant’s

last known addres s.
Notice by mail or other means as certain to ensure actual notice is a minimum constitutional pr eco ndition to a proceeding which will adversely affect the liberty or property interests of a ny part y, whether unlettered or well versed in commercial practice, if its name and address are reasonably ascertainable. Furthermore, a mortgagee's knowledge of delinqu enc y in the payment of taxes is not equivalent to notice that a tax sale is pending. ( Mennonite

Board of Missions v. Adams , 462 U.S. 791, 103 S.Ct. 2706) at 799-800, 103 S.Ct. at 2712. This Court has applied Mennonite to cases involving the tax sale of realty. See Freeman v. C ity of Kingsport

, 926 S.W. 2d 247, 249-50 (Tenn.App.1996) ("actual notice is required if t he int erested party's

name and addres s are reasonably asc

erta inable") ; Morrow v. Bobbitt , 943 S.W.2d 384 (Tenn.App.1996).
Sunburst Bank v. Patterson , 971 S.W.2d 1, 5 (Tenn. Ct. App. 1997)(discussing appropriate

procedures before r

elying upon service by pu

blication for entr

y of default judgment in a tax sale case).
As noted by the Chancellor, service under this procedure has bee n p reviously addressed by this Court. In a similar lawsuit brought to set aside a tax sale of r eal property, a certified m ail return receipt signed by a spouse was found to provide proper notice effective to a party who did not sig

n the return rec

eipt.
The plaintiff, Mr. Knowles, received the summons and notice a nd signed the rec

eipt.

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Mrs. Knowles argues that since she was not signatory to the receipt for the mail and didnot individually

receive a notice, she was not served. We respectfully disagree. "The return of the receipt signed by the ... spouse... shall be evidence of personal notice." See T.C.A. § 67-5-2415 abov e. Further, Rule 4.03 provides that "[i]f the return receipt is signed by the defendant, or b y a pers on designated ... by statute, service on the defendant

is complete.” (Emphasis added). Since T.C.A. § 67-5-2415 specifically

designates a spouse as a person who may sign a rece ipt and w hose signature shall constitute

evidence of personal service, we are of the opinion that the service of a summons and notice was complete as to both plaintiffs . . ..
Knowles v. State of Tennessee , C.A. No. 03A01-9606-CH-00209, 1996 WL 668990 at 2.
Plaintif

f at tempts to distinguish Knowles as addressing the law only when both spouse s are parties-de

fendant to a delin

quent tax lawsuit. P

laintiff misreads Knowles. Pl aintif f advances the identical issue as Mrs. Knowles, that he was not served since he was not signatory to t he return receipt. Once again, we hold that a certified mail return receipt signed by a spouse i s evidence of service on a defendant under T.C.A. § 67-5-2415(e)(1). Whether both or only one of the spouses are par

ties-defendant

to the tax lawsuit makes no diff erence under T.C.A. § 67-5- 2415(e)(1). The statute does not require that the spouse who signs the return receipt be an owner of the property or a party-defendant to the suit for service to be effective on the non-signing spouse.

Plaintiff argues on appealthat his signature does not appear on any of the certified mail receipts that

appear in the record, and that in applying the procedure for service of process for this type of lawsuit as set forth by the Ten nessee Legislature, Plaintiff’s due process rights were violated. As Plaintiff does not dispute that the signature of his spouse appear

s on the certified

mail return receipt filed with the papers of the Trial Court, and finding such signature suffic ient to establish personal serviceupon Plaintiff under Tennesseelaw, and further holding that T.C.A. § 67- 5-2415(e)(1) does not violate the requirements or purposes of due process

rights and, there

fore, is constitutional,

the judgment of the Trial Court is affirmed. Defendant’s request for damages under T.C.A. § 27-1-122 is denied.
Conclusion

The judgment of the Trial Court is aff irmed, and this

suit remanded to the Hamilton County Chancery Court for further proceedings as necessary, if any, an d for collection of

costs below. Costs of this a

ppeal are taxed

to the appellant, L

amar C. Pell.