IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

November 15, 2011 Session

DONNA F. SMITH THOMPSON v. AMERIQUEST MORTGAGE

COMPANY

Direct Appeal from the Chancery Court for Crockett County

No. 9415 George R. Ellis, Chancellor

No. W2011-00501-COA-R3-CV - Filed December 5, 2011

Plaintiff filed a complaint seeking to set aside the foreclosure sale of her property. The trial

court dismissed the case based on Plaintiff’s failure to effect service of process on the

Defendant. We affirm.

Tenn. R. App. P. 3 appeal as of Right; Judgment of the Chancery Court Affirmed

and Remanded

DAVID R. FARMER, J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J.,

W.S., and J. STEVEN STAFFORD, J., joined.

Donna F. Smith, Pro se.

MEMORANDUM OPINION

1

This appeal arises from an action filed on October 19, 2010, by Donna F. Smith

Thompson (“Ms. Thompson”) against Ameriquest Mortgage Company (“Ameriquest”) in

Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

1

This Court, with the concurrence of all judges participating in the case, may affirm, reverse

or modify the actions of the trial court by memorandum opinion when a formal opinion

would have no precedential value. When a case is decided by memorandum opinion it shall

be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited

or relied on for any reason in any unrelated case.

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Crockett County Chancery Court. In her complaint, Ms. Thompson alleged that her

mortgage contract with Ameriquest was unregistered and forged. As such, Ms. Thompson

asked the trial court to declare her mortgage contract null and void and set aside the

foreclosure sale of her property.

The trial court conducted a status hearing to determine whether Ms. Thompson

properly effected service of process on Ameriquest. On February 17, 2011, the trial court

entered an order dismissing the case based on Ms. Thompson’s failure to serve Ameriquest.

Ms. Thompson timely filed a notice of appeal.

Issue Presented

On appeal, the sole issue for our review is whether the trial court erred in dismissing

the action for lack of service of process.

Discussion

We begin our discussion by noting that the record on appeal does not contain a

statement of the evidence or transcript of any of the trial court proceedings. Under

Tennessee Rule of Appellate Procedure 24(b), “the appellant shall have prepared a transcript

of such part of the evidence or proceedings as is necessary to convey a fair, accurate and

complete account of what transpired with respect to those issuesthat are the bases of appeal.”

Where no such transcript is available, “the appellantshall prepare a statement of the evidence

or proceedings from the best available means, including the appellant's recollection. The

statement should convey a fair, accurate and complete account of what transpired with

respect to those issues that are the bases of appeal.” Tenn. R. App. P. 24(c). In the case at

bar, however, Ms. Thompson filed a notice pursuant to Tennessee Rule of Appellate

Procedure 24(d),stating thatshe would not be filing a transcript or statement of the evidence.

Consequently, “[i]n the absence of a transcript or statement of the evidence, a presumption

arises that there was sufficient evidence to support the trial court's judgment.” Orlando

Residence, Ltd. v. Nashville Lodging Co., 213 S.W.3d 855, 865 (Tenn. Ct. App. 2006)

(quoting In re Estate of Henderson, 121 S.W.3d 643, 647 n.5 (Tenn. 2003) (citing Mfrs.

Consol. Serv. v. Rodell, 42 S.W.3d 846, 865 (Tenn. Ct. App. 2000))).

After reviewing the record, it appears that Ms. Thompson attempted to serve

Ameriquest by serving the secretary of state pursuant to Rule 4B of the Tennessee Rules of

Civil Procedure. “[R]ule 4B(1), in effect, permits service on the secretary of state as the

2

Rule 4B of the Tennessee Rules of Civil Procedure provides in part: 2

(continued...)

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defendant’s agent for service of process, whenever it is constitutionally permissible for the

courts of the state to exercise personal jurisdiction over the defendant.” Robert Banks, Jr.

& June F. Entman, Tennessee Civil Procedure § 2-5(b), at 2-64 to -65 (3d ed. 2009). The

record contains an affidavit and endorsement from the secretary of state stating that certified

(...continued) 2

(1) Whenever the law of this state permits service of any process, notice, or demand,

upon a defendant outside the territorial limits of this state, the secretary of state may be

served as the agent for that defendant. Service shall be made by delivering to the secretary

of state the original and one copy of such process, notice, or demand, duly certified by the

clerk of the court in which the suit or action is pending or brought, together with the proper

fee. A statement that identifies the grounds for which service on the secretary of state is

applicable must be included.

(2) The secretary of state shall endorse the time of receipt upon the original and

copy and immediately shall promptly send, postage prepaid, the certified copy by registered

or certified return receipt mail to the defendant, along with a written notice that service was

so made. If the defendant to be served is a corporation, the secretary of state shall send the

copy, along with a written notice that service of the original was made, addressed to such

corporation at its registered office or principal office as shown in the records on file in the

secretary of state's office or as shown in the official registry of the state or country in which

such corporation isincorporated. If none of the previously mentioned addresses is available

to the secretary of state, service may be made on any one (1) of the incorporators at the

address set forth in the charter. The secretary of state may require the plaintiff or the

plaintiff's attorney to furnish the latter address.

. . . .

(6) The refusal or failure of a defendant, or the defendant's agent, to accept delivery

of the registered or certified mail provided for in subpart (1), or the refusal or failure to sign

the return receipt, shall not affect the validity of such service; and any such defendant

refusing or failing to accept delivery of such registered or certified mail shall be charged

with knowledge of the contents of any process, notice, or demand contained therein.

(7) When the registered or certified mail return receipt is received by the secretary

of state or when a defendant refuses or fails to accept delivery of the registered or certified

mail and it isreturned to the secretary of state, the secretary of state shall forward the receipt

or such refused or undelivered mail to the clerk of the court in which the suit or action is

pending, together with the original process, notice, or demand, a copy of the notice sent to

the defendant corporation and the secretary of state's affidavit setting forth his or her

compliance with this Rule. Upon receipt thereof, the clerk shall copy the affidavit on the

rule docket of the court and shall mark it, the receipt or refused or undelivered mail, and the

copy of notice as of the day received and place them in the file of the suit or action where

the process and pleadings are kept, and such receipt or refused or undelivered mail,

affidavit, and copy of notice shall be and become a part of the technical record in the suit

or action and thereupon service on the defendant shall be complete.

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copies of the summons and complaint were sent by registered or certified return-receipt mail

to Ameriquest along with written notice that service was made. The certified mail was

returned to the secretary of state’s office, however, with the notation “MOVED LEFT NO

ADDRESS.” Thereafter, the secretary of state forwarded the returned mail to the clerk of

the Crockett County Chancery Court.

Although the affidavitseemsto comport with the secretary of state’s duties under Rule

4B, we are unable to conclude that Ms. Thompson properly served Ameriquest. Ms.

Thompson fails to provide us with any argument or citation to the record that would support

our reversal of the trial court. In fact, Ms. Thompson’s brief focuses solely on the merits of

her case and asks this Court to rule in her favor despite her failure to properly serve

Ameriquest. Moreover, upon thorough review of the record, we note that the address for

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Ameriquest provided in the secretary of state’s affidavit differs from the mailing address

listed for Ameriquest on the deed of trust. In light of these inconsistencies, and in the

absence of a transcript or statement of the evidence, we are unable to adequately review the

trial court’s reasons for refusing to accept Ms. Thompson’s attempt to serve the secretary of

state as an agent of Ameriquest. As noted above, when the record on appeal does not contain

a transcript or statement of the evidence, we are “required to presume that the record, had it

been properly preserved, would have supported the action of the trial court.” Allen v. Allen,

No. W2010-00920-COA-R3-CV, 2011 WL 198516, at *3 (Tenn. Ct. App. Jan. 12, 2011)

(citing Reinhardt v. Neal, 241 S.W.3d 472, 477 (Tenn. Ct. App. 2007); Sherrod v. Wix, 849

S.W.2d 780, 783 (Tenn. Ct. App. 1992)). Accordingly, we find no error in the trial court’s

judgment.

Conclusion

For the foregoing reasons, we affirm the judgment of the trial court. Costs of this

appeal are taxed to the Appellant, Donna F. Smith Thompson, for which execution may issue

if necessary.

_________________________________

DAVID R. FARMER, JUDGE

Additionally, Ms. Thompson states in her brief that the trial court asked her to attempt to serve 3

Ameriquest by publication. At oral argument, however, Ms. Thompson admitted that she did not attempt

service by publication because she could not afford to do so at the time.

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