Hall v. Haynes

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
April 6, 2010 Session

BILLIE GAIL HALL, as Surviving Spouse and Administratrix of the Estate
of BILLY R. HALL, Deceased v. DOUGLAS B. HAYNES, JR., M.D. ET AL.

Appeal by Permission from the Court of Appeals, Western Section
Circuit Court for Dyer County
No. 05-96 Lee Moore, Judge

No. W2007-02611-SC-R11-CV - Filed August 26, 2010

In this medical malpractice case, we are asked to determine whether various employees of
a medical corporation were agents properly authorized by appointment to receive service of
process on behalf of the corporation and/or one of its physician employees. We hold that
none of the individuals who accepted service in this case were agents authorized by
appointment to receive service of process on behalf of either the corporation or the individual
physician. With specific reference to the attempted service of the amended complaint, we
hold that the authority to sign for and receive certified mail does not, on its own, confer the
authority to accept service of process. Therefore, we affirm the judgment of the Court of
Appeals.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals
Affirmed and Case Remanded to the Circuit Court for Dyer County

C ORNELIA A. C LARK, J., delivered the opinion of the Court, in which J ANICE M. H OLDER,
C.J., and G ARY R. W ADE, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.

Charles M. Agee, Jr., Dyersburg, Tennessee, for the appellant, Billie Gail Hall, as Surviving
Spouse and Administratrix of the Estate of Billy R. Hall, Deceased.

Marty R. Phillips and Ashley D. Cleek, Jackson, Tennessee, for the appellees, Douglas B.
Haynes, Jr., M.D. and MedSouth Healthcare, P.C.
 OPINION

Factual and Procedural Background

On August 5, 2005, Billy R. Hall and Billie Gail Hall (collectively, “the Halls”) filed
a civil action in Dyer County Circuit Court against Douglas B. Haynes, Jr., M.D. and
MedSouth Healthcare, P.C. (“MedSouth”) (collectively, “Defendants”) alleging medical
malpractice regarding Defendants’ treatment of a condition that was first discovered on
February 23, 2005.1 That same day, the Dyer County Circuit Clerk issued two summonses,
one addressed to Dr. Haynes in his own name and the other addressed to MedSouth by and
through its registered agent, Stevens Melton, M.D. On August 9, Constable Dennis
Peckenpaugh went to MedSouth’s clinic in Dyersburg, which was also Dr. Haynes’s place
of employment, in order to serve Defendants with process. According to the testimony of
David Alred, MedSouth’s administrator, when Peckenpaugh walked into MedSouth’s clinic,
he would likely first see MedSouth employees, including customer service agents, at the front
desk area.

Brenda Enochs signed the summons addressed to Dr. Haynes. In her deposition,
Enochs testified that she was employed at that time in MedSouth’s customer service
department, where she checked in patients and assisted with billing inquiries. Besides having
some papers placed before her that she was told to sign, Enochs testified that she had no
recollection of her conversation with Peckenpaugh.2 Enochs testified that she routinely
signed for subpoenas for medical records. In fact, when she signed the Haynes summons,
Enochs thought that she was actually signing for one such medical records request. Enochs
testified that she would not have signed the summons if Peckenpaugh had explained that he
was serving a lawsuit.

Upon discovering that the served documents were not, in fact, a medical records
request, Enochs gave them to her supervisor, Cindy Hill. Although Enochs did not know
what Hill did with the documents, Alred testified that Dr. Haynes informed Alred about the
filing of the lawsuit shortly after Enochs signed for the documents.

1
According to the underlying allegations, which are not relevant to the disposition of this case, Dr.
Haynes, a primary care physician who saw Mr. Hall for annual physicals and other office visits, was
negligent in failing to diagnose Mr. Hall’s colon cancer. By the time that other physicians made the
diagnosis, Mr. Hall’s cancer had allegedly reached Stage IV, and his life expectancy was approximately
twelve (12) months. MedSouth was alleged to be vicariously liable under the doctrine of respondeat
superior. The record does not reflect the exact date of Mr. Hall’s death, but, at least as of June 22, 2007,
Mrs. Hall (“Plaintiff”) was listed as “Surviving Spouse and Administratrix of the Estate.”
2
Peckenpaugh was not deposed.

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 Michelle Pruitt, a customer service agent who had the same job tasks as Enochs,
signed the summons for MedSouth.3 Pruitt testified that Peckenpaugh laid the summons on
the front desk and asked her to sign for it. Pruitt signed the summons at Peckenpaugh’s
request but did not know what she was signing for. She then placed the documents in Dr.
Melton’s mailbox because the documents had his name on them. Pruitt ordinarily signed
only for medical records but not for other mail. She testified that, if she had known that
Peckenpaugh was serving a lawsuit, she would have called for someone else because she
“would not have known [what to do] about a lawsuit.”

On August 25, 2005, the Halls filed an amended complaint.4 The Halls’ counsel
attempted to serve a new summons and the amended complaint on Dr. Haynes and MedSouth
by certified mail, return receipt requested. The process documents for Dr. Haynes were
addressed to “Douglas B. Haynes, Jr., M.D.” at the street address for MedSouth’s clinic. The
process documents for MedSouth were addressed to “MedSouth Healthcare, P.C., Registered
Agent: Stevens Melton, M.D.,” also at the clinic’s street address. The postal carrier delivered
the certified mail to MedSouth’s clinic, where Debbie Funderburk, an accounts payable clerk
in MedSouth’s administrative department, received the envelopes and signed the return
receipts for both Defendants.5 Funderburk did not check the “Agent” or “Addressee” boxes
on either return receipt. Funderburk then took the envelopes to the mail room, where she
placed Dr. Haynes’s process in Dr. Haynes’s box and MedSouth’s process in Dr. Melton’s
box. Funderburk testified that, to her knowledge, each individual doctor or his nurse would
retrieve the mail from the doctor’s mailbox.6

3
When Pruitt was asked why she would sign for MedSouth and Enochs would sign for Dr. Haynes,
Pruitt testified that she worked on the pediatric side and that Enochs worked on the internal side. Pruitt
testified that she and Enochs must have had some conversation with Constable Peckenpaugh to explain who
would sign for which documents. Alred testified that Enochs and Pruitt worked in the same vicinity, but
otherwise he did not know how different people ended up signing for two sets of process documents
delivered by the same person.
4
Besides specifying February 23, 2005 as the date that the Halls discovered the injury caused by
Defendants’ alleged negligence, the amended complaint otherwise incorporated the entirety of the allegations
of the original complaint.
5
Funderburk was not asked in her deposition about any specific details of what the mail carrier said
to her, or vice versa, upon delivery of the process documents in this case. The mail carrier was not deposed.
6
In several cases Alred provided conflicting testimony regarding who physically placed the summons
and complaint in the mailbox of the recipient physician after staff signed for those documents. The precise
identity of who placed the documents in each physician’s mailbox is ultimately immaterial because the
parties do not dispute the identity of who accepted service of process in each instance or the fact that
Defendants ultimately received actual notice of both complaints.

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 Concerning the delivery of certified mail generally, Funderburk testified that “[t]he
postman walks in and whoever is the first person in administration he finds he just says, here,
I need you to sign this.” Funderburk was one of at least four employees in administration
who could have signed the return receipt for certified mail. Funderburk testified that her
supervisor, Chief Financial Officer Sheila Curtis, was aware of the fact that administrative
employees signed for certified mail.

Enochs, Funderburk, and Dr. Haynes all testified that Enochs and Funderburk were
neither employed by Dr. Haynes nor authorized to accept service of process on his behalf.
Pruitt, Funderburk, Alred, and Dr. Melton all testified that Pruitt and Funderburk were not
officers or managing agents of MedSouth nor otherwise authorized agents to accept service
of process on its behalf. According to Alred’s testimony, the positions held by Enochs,
Pruitt, and Funderburk were “secretarial or clerical in nature” and lacked “any management
or supervisory responsibilities.”

Dr. Melton was MedSouth’s registered agent during his tenure as the company’s
president from 2002 until the fall of 2006. He testified that he could recall one instance in
that period when he was served with a lawsuit against MedSouth. At other times, Dr. Melton
conceded that customer service agents signed for lawsuits against MedSouth, even though
they lacked the actual authority to accept service of process on MedSouth’s behalf. Dr.
Melton could not name the employees who worked in customer service. With regard to
certified mail, Dr. Melton could recall one occasion when a letter was brought to him for
signature. On other occasions the front office staff signed for his certified mail. He
explained that it was “preferable” to bring the mail back for him to sign but he “kn[e]w that
d[id] not happen all the time.”

During his tenure for slightly more than a decade as MedSouth administrator, Alred
recalled fewer than half a dozen suits against MedSouth or one of its physicians. Alred
testified that he could recall signing for a summons for a malpractice lawsuit against
MedSouth during his tenure as administrator. When asked whether it was a more common
practice for someone besides Dr. Melton or himself to sign for a summons, Alred testified:
“If the customer service or front desk people are aware of what they’re signing for typically
I would be called. . . . If they are not fully aware of what they are signing then they are going
to sign it.”

As for the delivery of certified mail, Alred testified that someone in the administrative
office, such as Funderburk, would generally sign the return receipt. Consistent with
Funderburk’s testimony, Alred stated that, when return receipts needed to be signed, the mail
carrier would look for “[w]hoever is available in the front office.” Alred testified that, in
signing the return receipt for process on the amended complaint, Funderburk “would have

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had no idea what she was signing for.” Alred was not asked about and did not volunteer
what procedure would have been followed if a certified letter with receipt restricted to a
particular person was delivered.

Defendants do not dispute that they actually received notice of the lawsuit, as they
ultimately obtained both copies of the summons and both complaints. Once Alred knew
about the lawsuit, he contacted MedSouth’s malpractice insurance carrier.

Defendants filed their answer on September 12, 2005. Defendants asserted the
following as their “First Defense”:

Defendants plead the defense of improper service and insufficiency of process.
They were not served as required by [Tennessee Rule of Civil Procedure] 4.
The Summons, Complaint, and First Amended Complaint were not delivered
personally to Dr. Haynes or the authorized agent for service of process for
MedSouth Healthcare, P.C. Consequently, service is not effective.

Defendants did not file a motion to dismiss, and Plaintiff did not attempt new service. The
parties conducted discovery on the issue of service. On March 15, 2007, approximately
eighteen months after filing the answer, Defendants moved for summary judgment.
Defendants argued that the Halls did not timely serve them, see Tenn. R. Civ. P. 3, because
the Halls did not serve individuals authorized to accept service on behalf of Haynes or
MedSouth, see id. 4.04(1), (4). Accordingly, Defendants maintained that the lawsuit was
time-barred under the one-year statute of limitations for malpractice actions. See Tenn. Code
Ann. § 29-26-116(a) (2000). Plaintiff did not dispute most of the facts material to the
motion, but asserted that Defendants were not entitled to judgment as a matter of law.

The trial court denied Defendants’ motion, relying on Boles v. Tennessee Farmers
Mut. Ins. Co., No. M1999-00727-COA-R3-CV, 2000 WL 1030837 (Tenn. Ct. App. July 27,
2000). The trial court held that Enochs, Pruitt, and Funderburk were authorized to receive
service of process on Defendants’ behalf. Defendants then moved for an interlocutory appeal
of the order denying the motion for summary judgment, which the trial court granted. The
Court of Appeals granted the interlocutory appeal and reversed and remanded the action for
entry of summary judgment for Defendants. The intermediate court held that the Halls did
not effectuate service of process on Defendants either by in-person delivery to Enochs and
Pruitt or by the delivery of certified mail signed for by Funderburk. Hall ex rel. Hall v.
Haynes, No. W2007-02611-COA-R9-CV, 2009 WL 782761, at *8, 15 (Tenn. Ct. App. Mar.
26, 2009). The Court of Appeals reasoned that Enochs, Pruitt, and Funderburk did not have
express actual authority or implied authority to accept service on behalf of Dr. Haynes or
MedSouth. The intermediate court further concluded that Boles was erroneous “to the extent

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that [it] may be read as holding that the ability to sign for certified mail, in and of itself,
equates to authority to receive service of process.” Id. at *13.

We accepted Plaintiff’s application for permission to appeal. As she did below,
Plaintiff argues that Enochs and Pruitt were authorized to accept in-person service on behalf
of Dr. Haynes and MedSouth, respectively, and that Funderburk was authorized to accept
service by certified mail on behalf of both Defendants. Furthermore, Plaintiff contends for
the first time that, after first raising the affirmative defense of insufficiency of process in
their September 2005 answer, Defendants waived the right to assert this procedural defense
by actively litigating the case until March 2007, when they filed their dispositive motion for
summary judgment.

Standard of Review

This case has been appealed from the trial court’s denial of summary judgment to
Defendants. Summary judgment is proper only if “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law.” Tenn. R. Civ. P. 56.04. The burden of production is on the party moving
for summary judgment. See Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 83 (Tenn. 2008).
To satisfy this burden of production, Defendants must either produce or identify evidence
“that affirmatively negates an essential element of the nonmoving party’s claim or shows that
the nonmoving party cannot prove an essential element of the claim at trial.” See Mills v.
CSX Transp., Inc., 300 S.W.3d 627, 631 (Tenn. 2009). Courts “take the strongest legitimate
view of the evidence in favor of the nonmoving party, allow all reasonable inferences in
favor of that party, and discard all countervailing evidence.” Blair v. W. Town Mall, 130
S.W.3d 761, 768 (Tenn. 2004). No genuine issue of material fact exists if the undisputed
facts and inferences drawn in the nonmoving party’s favor “permit a reasonable person to
reach only one conclusion”—that is, the moving party is entitled to judgment as a matter of
law. Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000).

Because summary judgment is a matter of law, we review the trial court’s decision de
novo with no presumption of correctness. Bailey v. Blount County Bd. of Educ., 303 S.W.3d
216, 226 (Tenn. 2010). As the parties do not disagree concerning any material fact in the
case, the issue presented is purely a question of law.

Analysis

This case requires us to interpret provisions of the Tennessee Rules of Civil
Procedure. These rules are promulgated by this Court and approved by the General

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Assembly, pursuant to this Court’s “inherent power to promulgate rules governing the
practice and procedure of the courts of this state.” State v. Mallard, 40 S.W.3d 473, 481
(Tenn. 2001) (citing State v. Reid, 981 S.W.2d 166, 170 (Tenn. 1998)). These rules have
“the force and effect of law.” Frye v. Blue Ridge Neurosci. Ctr., P.C., 70 S.W.3d 710, 713
(Tenn. 2002) (quoting Crosslin v. Alsup, 594 S.W.2d 379, 380 (Tenn. 1980)). Tennessee law
directs that Rule 4.04, the key provision at issue in this case, is to be strictly construed. E.g.,
Wallace v. Wallace, No. 01A01-9512-CH-00579, 1996 WL 411627, at *2 (Tenn. Ct. App.
July 24, 1996) (quoting Tabor v. Mason Dixon Lines, Inc., 264 S.W.2d 821, 822-23 (Tenn.
1953)).

I. Personal Service of Process Upon Defendants
Within the State of Tennessee

A. On Individuals

Tennessee Rule of Civil Procedure 4.04(1), which governs the personal service of
process on individual defendants in this state, provides as follows:

The plaintiff shall furnish the person making the service with such copies of
the summons and complaint as are necessary. Service shall be made as
follows:

(1) Upon an individual other than an unmarried infant or an
incompetent person, by delivering a copy of the summons and of the complaint
to the individual personally, or if he or she evades or attempts to evade service,
by leaving copies thereof at the individual’s dwelling house or usual place of
abode with some person of suitable age and discretion then residing therein,
whose name shall appear on the proof of service, or by delivering the copies
to an agent authorized by appointment or by law to receive service on behalf
of the individual served.

The language of this rule makes clear that “the preferred method of service upon an
individual . . . is clearly by delivery of the summons and complaint to the defendant
personally.” Robert Banks, Jr. & June F. Entman, Tennessee Civil Procedure § 2-3(d), at 2-
26 (2d ed. 2004). Nevertheless, personal service may also be effected upon an individual via
a properly authorized agent. In any event, however, actual notice of the lawsuit is not “a
substitute for service of process when the Rules of Civil Procedure so require.” Frye, 70
S.W.3d at 715; accord LSJ Inv. Co. v. O.L.D., Inc., 167 F.3d 320, 322 (6th Cir. 1999).

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 It is undisputed in this case that Constable Peckenpaugh did not serve process on Dr.
Haynes personally. Rather, he delivered to Enochs the summons addressed to Dr. Haynes.
Whether this constituted service of process upon Dr. Haynes hinges upon whether Enochs
was “an agent authorized by appointment or by law to receive service on behalf of” Dr.
Haynes.

In the workplace context, service is not effective when another employee whom the
individual defendant has not appointed as an agent for service of process nonetheless accepts
process on the defendant’s behalf. In Basham v. Tillaart, No. M2002-00723-COA-R3-CV,
2003 WL 21780974 (Tenn. Ct. App. July 31, 2003), the plaintiff served both individual
defendants through the Tennessee Secretary of State at the defendants’ nursery business in
Ontario, Canada. The international mail return receipts were signed by a general laborer at
the nursery whose ordinary duties consisted of outside farm labor rather than office work.
In the laborer’s affidavit, she testified that a postman approached asking her to sign for some
mail, and “[i]n the bustle of activity prevailing at the moment,” she signed the return receipts.
Id. at *2. Although international law governed the question of sufficiency of process and
service was insufficient under the applicable treaty, the Court of Appeals went on to state,
“[p]laintiff’s attempted method for service of process even fails to satisfy the standard
established by the Tennessee Rules of Civil Procedure for service within the state.” Id. at *5.
In other words, if the defendants had worked in Tennessee and process had been served on
someone in the general laborer’s position, that service would have been insufficient. The
court explained that, under Rule 4.04(1), “personal service is the preferred method under
Tennessee law” and concluded that the rule does not “permit[] a plaintiff to serve process by
sending documents to an individual’s place of business, thereafter to be receipted for by an
employee who is not an authorized agent for service of process.” Id.

The reasoning in Basham is consistent with the holdings of decisions from other
jurisdictions construing similarly worded provisions in their rules of procedure. See Babb
v. Bridgestone/Firestone, 861 F. Supp. 50, 51-52 (M.D. Tenn. 1993); Adams v. Gluckman,
359 S.E.2d 710, 711 (Ga. Ct. App. 1987); Cooley v. Brawner, 881 So. 2d 300, 302-03 (Miss.
Ct. App. 2004); Cook v. Polineni, 967 S.W.2d 687, 693 (Mo. Ct. App. 1998). In these latter
three medical malpractice actions, the court held that an individual physician was not
effectively served by leaving the process documents at the physician’s place of business with
a receptionist or office manager. That service was insufficient because the recipient was not
an agent authorized by appointment to receive service of process.

The phrasing of the rule in Tennessee and other jurisdictions “was intended to cover
the situation where an individual actually appoints an agent for the purpose of receiving
service.” 62B Am. Jur. 2d Process § 216 (2005). A principal may expressly give actual
authority to the agent in direct terms, either orally or in writing. Rubio v. Precision

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Aerodynamics, Inc., 232 S.W.3d 738, 742-43 (Tenn. Ct. App. 2006). Implied authority, by
contrast, “embraces all powers which are necessary to carry into effect the granted power,
in order to make effectual the purposes of the agency.” Id. at 743. Implied authority that the
principal has actually conferred on the agent can be circumstantially established through
conduct or a course of dealing between the principal and agent. Bells Banking Co. v.
Jackson Ctr., Inc., 938 S.W.2d 421, 424 (Tenn. Ct. App. 1996) (quoting 2A C.J.S. Agency
§ 153 (1972)). Implied authority must be predicated “‘on some act or acquiescence of the
principal,’” rather than the actions of the agent. Id. In the context of serving process, the
record must contain “evidence that the defendant intended to confer upon [the] agent the
specific authority to receive and accept service of process for the defendant.” Arthur v.
Litton Loan Servicing LP, 249 F. Supp. 2d 924, 929 (E.D. Tenn. 2002). Acting as the
defendant’s agent for some other purpose does not make the person an agent for receiving
service of process. Id. Nor is the mere fact of acceptance of process sufficient to establish
agency by appointment. Id.

In this case, Dr. Haynes did not expressly authorize Enochs to accept service of
process of lawsuits on his behalf. Enochs admitted that she did not have authority to accept
service of lawsuits for Dr. Haynes. Although Enochs signed for subpoenas for medical
records requests as part of her job duties, the law is clear that acting as an agent for some
other purpose does not automatically make her Dr. Haynes’s agent for accepting service of
process. Arthur, 249 F. Supp. 2d at 929. Furthermore, the mere fact that Enochs accepted
service of this lawsuit does not, in and of itself, bind Dr. Haynes to the court’s jurisdiction.
Id.; accord Richards v. N.Y. State Dep’t of Corr. Servs., 572 F. Supp. 1168, 1173 (S.D.N.Y.
1983). While some courts have relaxed the rule on agent authorization to find service on a
receptionist sufficient where the individual defendant evaded or resisted service, there is no
claim or evidence of such evasion or resistance by Dr. Haynes in this case. See, e.g., Frank
Keevan & Son, Inc. v. Callier Steel Pipe & Tube, Inc., 107 F.R.D. 665, 671 (S.D. Fla. 1985).

The record contradicts Plaintiff’s contention that Enochs had implied authority to
accept service of process based on a custom and practice of “handling important papers.”
Enochs testified that, when she signed the summons, she did not know what she was signing
but was simply complying with Peckenpaugh’s request. If she had known that Peckenpaugh
was serving a lawsuit, she testified that she would not have signed the summons. Rather than
knowing what to do with “any important papers” that she received at the front desk, as
Plaintiff contends, Enochs handed the summons and complaint over to Hill, her supervisor,
precisely because Enochs “wouldn’t have known what to do with [the summons and
complaint] without calling” Hill. Dr. Melton testified that, to his understanding, customer
service agents had signed for lawsuits during his tenure as registered agent, but he could not
even identify who worked in the customer service department. Alred testified that customer

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service agents would sign a summons only “[i]f they are not fully aware of what they are
signing.”

Based on these undisputed facts, we agree with the Court of Appeals that the personal
delivery to Enochs of the summons and complaint addressed to Dr. Haynes did not comply
with Tennessee Rule of Civil Procedure 4.04(1). Enochs did not have express or implied
authority to accept service of process on behalf of Dr. Haynes. Accordingly, Constable
Peckenpaugh’s delivery to Enochs of the summons addressed to Dr. Haynes did not
constitute service of process on Dr. Haynes.

B. On Corporations

Tennessee Rule of Civil Procedure 4.04(4) governs the personal service of process on
corporate defendants in this state. It reads as follows:

The plaintiff shall furnish the person making the service with such copies of
the summons and complaint as are necessary. Service shall be made as
follows:
....
(4) Upon a domestic corporation, or a foreign corporation doing
business in this state, by delivering a copy of the summons and of the
complaint to an officer or managing agent thereof, or to the chief agent in the
county wherein the action is brought, or by delivering the copies to any other
agent authorized by appointment or by law to receive service on behalf of the
corporation.7

Here, Peckenpaugh delivered to Pruitt the summons addressed to MedSouth. Plaintiff
does not contend that Pruitt was MedSouth’s “officer or managing agent” or its “chief
agent.” We need only decide, therefore, whether Pruitt was an “agent authorized by
appointment or by law to receive service on behalf of” a corporate defendant. And, again,

7
In prescribing how process is to be served, subparagraphs (1) and (4) of Rule 4.04 are more
restrictive than other provisions of our Rules governing the service of later pleadings. Rule 5.02 allows
service, for example, by handing the pleading to a represented party’s attorney, leaving the pleadings at the
attorney’s office with a clerk or other person in charge, or even leaving the pleading in a conspicuous place
within the office if no one is in charge. Also under that rule, mail service is complete upon mailing. The
more stringent provisions in Rule 4 reflect the paramount significance of serving initial process, that is, “the
document, usually a summons, that brings the defendant before the court, asserts the court’s jurisdiction over
the case, and requires the defendant to respond.” Lewis v. Bowen, No. M2003-00985-COA-R3-CV, 2004
WL 2752811, at *3 (Tenn. Ct. App. Dec. 1, 2004).

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actual notice does not excuse the failure to serve process in compliance with our Rules of
Civil Procedure. Frye, 70 S.W.3d at 715; accord LSJ Inv. Co., 167 F.3d at 322.

The rule on serving corporations through their authorized agents “contemplates
service on agents either expressly or impliedly appointed by the defendant organization as
agents to receive process.” 4A Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1101, at 557 (3d ed. 2002).8 We have already explained above the concept of
actual authority, both express and implied. As Arthur makes clear, specific authority to
receive and accept service of process for the defendant is required, and mere acceptance of
process in a single instance does not constitute valid service. 249 F. Supp. 2d at 929.

Our Court of Appeals has held, however, that a corporate defendant’s registered agent
may authorize a subagent to assist in performing the registered agent’s duties, including the
acceptance of service of process. Rubio, 232 S.W.3d at 744. In Rubio the process server
delivered process to the registered agent’s personal secretary. According to the process
server’s affidavit, the secretary represented to the process server that she had authority to
accept service on the registered agent’s behalf; that she had, in fact, accepted service many
times in the past; and that she would transmit process to the registered agent. After
reviewing the statutory scheme for a corporation’s designation of its registered agent and
summarizing applicable principles of Tennessee agency law, the Court of Appeals held that
“registered agents, individual or corporate, have implied authority to appoint subagents.” Id.
at 743-44. Applied to the facts of that case, the intermediate court concluded that the
registered agent had actually authorized the receptionist to assist in accepting service of
process, and thus personal delivery of process to the receptionist was sufficient to serve the
defendant. Id. at 744.

We have further stated that the “apparent purpose” of Rule 4.04 is “to insure that
process is served in a manner reasonably calculated to give a party defendant adequate notice
of the pending judicial proceedings.” Garland v. Seaboard Coastline R.R. Co., 658 S.W.2d
528, 530 (Tenn. 1983). Accordingly, service of an organizational defendant9 may

8
We have expressly adopted the federal courts’ construction of the corresponding provision on
service of corporations and unincorporated associations in the Federal Rules of Civil Procedure. Garland
v. Seaboard Coastline R.R. Co., 658 S.W.2d 528, 530-31 (Tenn. 1983). Although the federal provision has
been subsequently amended and renumbered, its pertinent language regarding agents authorized to receive
service of process on behalf of corporations remains the same. See Fed. R. Civ. P. 4(h)(1)(B).
9
Although Garland specifically involved service on an unincorporated association pursuant to Rule
4.04(3), that subsection and Rule 4.04(4) both allow service on an “agent authorized by appointment or by
law to receive service on behalf of” the organization.

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 be made upon a representative so integrated with the organization that [s]he
will know what to do with the papers. Generally, service is sufficient when
made upon an individual who stands in such a position as to render it fair,
reasonable and just to imply the authority on h[er] part to receive service.

Id. at 531.

In this case, MedSouth did not expressly authorize Pruitt to accept service of process
of lawsuits on its behalf, based on the testimony of Alred, its administrator, and Dr. Melton,
its registered agent. Pruitt admitted that she did not have authority to accept service of
lawsuits. While Plaintiff contends that Pruitt had implied authority to accept service of
process based on a custom and practice of “handling important papers,” the record
contradicts this contention. Just like Enochs, Pruitt testified that, when she signed for the
summons, she did not know what she was signing for. Instead, she signed for the summons
at Peckenpaugh’s request. While Pruitt occasionally placed other documents in a physician’s
box in the mail room, she testified that she did not ordinarily sign for mail. As we stated
previously, Dr. Melton testified that, to his understanding, customer service agents had
signed for lawsuits against MedSouth during his tenure as registered agent, but he could not
even identify which individuals worked in the customer service department. Alred testified
that customer service agents would sign a summons only “[i]f they are not fully aware of
what they are signing.”

Although Pruitt signed for subpoenas for medical records requests as part of her job
duties, the law is clear that acting as a corporation’s agent for some other purpose does not
automatically make a person the corporation’s agent for accepting service of process. Arthur,
249 F. Supp. 2d at 929-30; 1 James Wm. Moore et al., Moore’s Federal Practice § 4.93, at
4-133 (3d ed. 2009). Furthermore, the mere fact that Pruitt accepted service of this lawsuit
does not, in and of itself, bind MedSouth to the court’s jurisdiction. Arthur, 249 F. Supp. 2d
at 929; Richards, 572 F. Supp. at 1173. While some courts have relaxed the rule on agent
authorization to find service on a receptionist sufficient where the corporation evaded or
resisted service, there is no claim or evidence of such evasion or resistance by MedSouth in
this case. See Amnay v. Del Labs, 117 F. Supp. 2d 283, 286 (E.D.N.Y. 2000).

The federal cases on which Plaintiff relies are distinguishable. In Direct Mail
Specialists, Inc. v. Eclat Computerized Techs., Inc., the court emphasized that the company
was small; the receptionist “[p]resumably” held a “commensurately large” role in the
company; and, when the process server asked who was authorized to accept service for the
corporation, the receptionist answered that no one else was there and she was the only one
in the office. 840 F.2d 685, 688-89 (9th Cir. 1988). Because the facts before us differ on all
of those points, the Direct Mail Specialists opinion is simply not applicable to this case.

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 Moreover, based on the nature of Pruitt’s job responsibilities, we are likewise not
persuaded by Top Form Mills, Inc. v. Sociedad Nationale Industria Applicazioni Viscosa,
428 F. Supp. 1237 (S.D.N.Y. 1977). In that case, the court denied a motion to dismiss for
insufficiency of service of process, where a secretary for the corporate defendant’s New York
sales representative accepted service. Id. at 1241. The secretary’s duties included the
endorsement of checks and preparation of correspondence to the defendant, and the process
server noted on the return of service that the secretary was in charge of the office. Id. at
1251. The court concluded that the secretary “was in practical effect, if not formal title, an
assistant manager of [the defendant’s] New York agency, and not a mere clerical employee.”
Id. Here, by contrast, Pruitt performed clerical work, did not have management or
supervisory responsibilities, and testified that she was not an officer or managing agent of
MedSouth. Indeed, according to Alred’s testimony, Pruitt’s responsibilities were “secretarial
or clerical in nature.” Pruitt’s job responsibilities make clear that she did not “st[an]d in such
a position as to render it fair, reasonable and just to imply the authority on h[er] part to
receive service of process” on MedSouth’s behalf. See Garland, 658 S.W.2d at 531.

Likewise, the record here provides no support for the kind of subagency relationship
that the Court of Appeals found in Rubio. Neither Dr. Melton nor Pruitt offered any
testimony that would suggest Dr. Melton appointed Pruitt as his subagent to perform any of
his duties as registered agent.

Based on the undisputed facts, we agree with the Court of Appeals that the personal
delivery of the summons and complaint to Pruitt did not comply with Tennessee Rule of Civil
Procedure 4.04(4). Pruitt was neither an agent authorized to receive service of process for
MedSouth nor a subagent of the registered agent, Dr. Melton. Accordingly, Plaintiff’s
attempt to effectuate service of process on MedSouth through Constable Peckenpaugh was
unsuccessful.

II. Service of Process by Mail Upon Defendants Within the State of Tennessee

A. On Individuals

Tennessee Rule of Civil Procedure 4.04(10) provides that service of process may also
be effectuated by mail:

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.
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

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 plaintiff, the plaintiff’s attorney or other authorized person for service by mail.
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. If the defendant to be served is an individual or entity
covered by [a subparagraph of Rule 4], the return receipt mail shall be
addressed to an individual specified in the applicable subparagraph. The
original summons shall be used for return of service of process pursuant to
Rule 4.03(2).

Second, additional requirements for service by mail are discussed in Rule 4.03(2):

When process is served by mail, the original summons, endorsed as below; an
affidavit of the person making service setting forth the person’s compliance
with the requirements of this rule; and, the return receipt shall be sent to and
filed by the clerk. The person making service shall endorse over his or her
signature on the original summons the date of mailing a certified copy of the
summons and a copy of the complaint to the defendant and the date of receipt
of the return receipt from the defendant. If the return receipt is signed by the
defendant, or by a person designated by Rule 4.04 or by statute, service on the
defendant shall be complete. If not, service by mail may be attempted again or
other methods authorized by these rules or by statute may be used.

(Emphasis added). The language of Rule 4.03 “set[s] forth a mandatory requirement rather
than a discretionary ideal that need not be strictly enforced to confer jurisdiction over a
party.” Estate of McFerren v. Infinity Transp., LLC, 197 S.W.3d 743, 748 (Tenn. Workers’
Comp. Panel 2006).

Based on Rule 4.03’s explicit restriction of whom may sign the return receipt,
“[o]rdinarily, . . . when the person to be served is an individual, the rule seems to require that
the return receipt be signed by the defendant and no one else.” Banks & Entman, § 2-3(v),
at 2-37. Thus, in Edwards v. Campbell, No. E2000-01463-COA-R3-CV, 2001 WL 52776
(Tenn. Ct. App. Jan. 23, 2001), the plaintiffs attempted to serve process by mail. The
signatory of the return mail receipts was, according to plaintiff’s unsubstantiated allegations,
the wife and mother of the defendants. However, nothing in the record indicated that the
signatory was a “person[] designated by Rule 4.04 or by statute,” such as an agent authorized
by defendants to accept service of process. Therefore, the Court of Appeals held that the
plaintiffs did not perfect service of process when they obtained the alleged wife and mother’s
signature on the return receipts. Id. at *5.

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 A similar analysis of Tennessee law appears in Massey v. Hess, No. 1:05-cv-249,
2006 WL 2370205 (E.D. Tenn. Aug. 14, 2006). There, the plaintiffs attempted to serve two
police officers by certified mail at the station where the officers worked. Another employee
at the station received and signed for the process documents. The federal court rejected
plaintiffs’ contention that the officers were properly served under the Tennessee Rules of
Civil Procedure.10 Id. at *3. The employee who received the documents was “simply a
person who work[ed] in the same office as” the defendant officers. Id. at *2. The employee
was not “an agent authorized by appointment or law to receive service on behalf” of the
officers, within the language of Rule 4.04(1). Id. Therefore, the return receipt was not
“signed by the defendant, or by a person designated by Rule 4.04 or by statute,” and service
was not “complete” within the meaning of Rule 4.03(2). Id. at *3.

In this case, because Plaintiff did not effectively serve the original complaint, the
viability of Plaintiff’s lawsuit against Dr. Haynes hinges on whether Plaintiff effectively
served the amended complaint on Dr. Haynes by certified mail. The record establishes
Plaintiff’s initial compliance with Rule 4.04(10) in her effort to serve the timely-filed
amended complaint on Dr. Haynes by mail. Plaintiff’s attorney addressed to Dr. Haynes a
copy of the summons and the amended complaint by certified mail, return receipt requested.
According to the plain language of Rule 4.03(2), however, service was not “complete” unless
the signatory of the return receipt was “a person designated by Rule 4.04.” 11 In this case,
Funderburk signed the return receipt, rather than Dr. Haynes. As we have discussed supra,
Rule 4.04(1) states that “an agent authorized by appointment . . . to receive service on behalf
of” an individual defendant may receive said service.

The dispositive question, therefore, is whether Funderburk was an agent authorized
by appointment to receive service on Dr. Haynes’s behalf. Dr. Haynes’s affidavit and
Funderburk’s deposition testimony agree that Funderburk was not authorized to receive
service of process on behalf of Dr. Haynes. Furthermore, Funderburk did not check the
“Agent” box on the return receipt when she signed for the summons and amended complaint
addressed to Dr. Haynes.

10
The court evaluated service under Tennessee’s rules because Federal Rule of Civil Procedure
4(e)(1) allows service in the United States of individuals other than minors or incompetents pursuant to the
law of the state in which the district court is located. Although the police officers worked in Virginia, the
court cited Tennessee Rule of Civil Procedure 4.05, which allows service on out-of-state defendants using
any method prescribed in Rule 4.04 whenever Tennessee law authorizes out-of-state service and the service
is “reasonably calculated to give actual notice.”
11
A person designated by statute may also sign the return receipt, but the parties have not identified
any such statute that would have authorized Funderburk to sign on Dr. Haynes’s behalf.

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 Nonetheless, Plaintiff contends that Funderburk was authorized to receive service of
process because she was authorized to receive and sign for certified mail addressed to
MedSouth’s employees, including physicians such as Dr. Haynes who worked at the
Dyersburg clinic. Funderburk testified that she was one of at least four employees in
administration who regularly signed for certified mail. She testified that, when the Post
Office delivered certified mail, the mail carrier would ask the first person who could be
found in administration to sign for it. After signing for the mail, Funderburk would take it
to the recipient physician’s mailbox, where the physician or the physician’s nurse would pick
it up. Funderburk testified that her supervisor, Sheila Curtis, was aware that employees in
administration were signing for certified mail. Alred corroborated Funderburk’s description
of the certified mail procedures, testifying himself that an administrative office employee,
such as Funderburk, would generally sign the return receipt. Therefore, there is evidence in
the record that Funderburk was authorized to sign for certified mail addressed to MedSouth
employees and delivered to the Dyersburg clinic.

Such authority does not ipso facto establish that Funderburk was an agent authorized
by appointment to receive service of process for Dr. Haynes, however. The Court of Appeals
previously confronted this issue in Boles, the case on which the trial court relied in denying
Defendants’ motion for summary judgment.12 See 2000 WL 1030837. In Boles, the
plaintiffs sued their home insurer and its claims investigator for failing to pay their claim for
fire loss. Plaintiffs attempted service by certified mail, and a secretary in the insurer’s
Manchester claims office signed return receipts for both the insurance company and the
claims investigator. The trial court granted the defendants’ motion to dismiss for
insufficiency of service of process.

Recognizing the issue as one of first impression, the Court of Appeals held that the
secretary was authorized to receive service of process on behalf of both defendants and
reversed the judgment of dismissal. Id. at *5-6. The Court of Appeals began by citing
persuasive authorities from other jurisdictions concluding that an employee authorized to
sign for and receive a defendant’s certified mail was likewise an authorized agent to accept
service of process on that defendant’s behalf. Id. The intermediate court then discussed the
testimony of the secretary and the district claims manager that the secretary was authorized
to sign for and receive certified mail on behalf of the insurer and its employees in the

12
Because Boles is relevant here and in the subsequent section concerning the attempt to use
certified mail to serve the amended complaint on MedSouth, we describe the decision’s facts and reasoning
in their entirety, including what was relevant to the Boles plaintiffs’ attempted service on both the individual
and corporate defendants.

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Manchester office.13 Id. The court emphasized that the secretary had received specific
authorization to sign for and receive certified mail; signed for both pieces of certified mail
in this case; and then delivered those documents to the recipients, who forwarded the
documents to legal counsel. Id.

In the case presently before us, the Court of Appeals declined to follow Boles’s
conclusion that an agent was authorized to accept service of process solely on the basis of
having authority to sign for certified mail. The intermediate court rejected the proposition
that “the ability to sign for certified mail, in and of itself, equates to authority to receive
service of process.” Hall ex rel. Hall, 2009 WL 782761, at *13. Instead, the court concluded
that while “Rule 4.04(10) is intended to provide plaintiffs with an alternate means of
effectuating service, . . . [it] is not intended to expand the class of persons who are authorized
to accept service of process under Rule 4.04(1) and 4.04(4).” Id. (emphasis added). While
the “[a]uthority to sign for certified mail may be a factor” in whether Funderburk had the
authority to accept service of process, “that fact in and of itself is not sufficient to support
a finding of implied authority.” Id. at *13-14. As for Boles’s citations to persuasive
authorities from other jurisdictions that found the authority to accept service of process based
on the authority to sign for and receive certified mail, the Court of Appeals concluded that
its prior “reliance on those cases was misplaced.” Id. at *12. Instead, those cases raised
different questions about the adequacy of service and/or involved procedural rules that were
meaningfully different from Tennessee’s rules. Id. at *10-12. We agree.

The Court of Appeals ultimately concluded that Funderburk was not authorized by
appointment to receive service on behalf of Dr. Haynes. The court emphasized the testimony
from both Dr. Haynes and Funderburk that she did not have express authority to accept
service of process on his behalf. Likewise, there was no implied authority because the record
did not indicate that accepting service on Dr. Haynes’s behalf was incidental and necessary
to Funderburk’s duties as an accounts payable clerk.

Decisions from other jurisdictions illustrate the importance of the procedural rule
language in determining whether the authority to sign for certified mail is sufficient to
convey authority to receive service of process. In Cook, a receptionist at a medical office
accepted service for one of the physicians who shared that office space. 967 S.W.2d at 689.
That state’s rule of procedure, equivalent to our Rule 4.04(1), allowed personal service of an
individual defendant by delivering process “to an agent authorized by appointment or
required by law to receive service of process.” Mo. R. Civ. P. 54.13(b)(1). The

13
Although the claims manager’s response to requests for admissions denied that the secretary was
authorized to sign for and receive his certified mail, the Court of Appeals resolved the disputed facts in the
plaintiffs’ favor. The claims manager did concede that he received actual notice of the lawsuit.

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receptionist’s job activities for the defendant included, among other tasks, accepting the
defendant’s certified mail. The defendant and his assistant had not expressly authorized the
receptionist to accept service of process for the defendant, and the receptionist testified that
she had not been given instructions to receive service on the defendant’s behalf. The
Missouri Court of Appeals held that the receptionist was not an agent authorized by
appointment to accept service on the defendant’s behalf. Id. at 693. The receptionist
“performed only very limited tasks for” the defendant, including receipt of the defendant’s
certified mail, and those activities did not “encompass the power to receive service of process
on behalf of [d]efendant.” Id. at 692. Nor was the power to accept service of process
“incidental and necessary” to accomplish the job activities that the receptionist performed
for the defendant. Id.

The significance of rule language specifically directing service on an agent authorized
to receive service of process is further demonstrated by a different outcome in a case
applying a rule that lacked such specific language. See Barlage v. Valentine, 110 P.3d 371
(Ariz. Ct. App. 2005). In that case, the applicable rule directed that service by mail of an out-
of-state defendant “be sent to the person to be served by any form of mail requiring a signed
and returned receipt.” Ariz. R. Civ. P. 4.2(c). The plaintiff mailed the summons and
complaint to the address on the defendant’s driver’s license, which turned out to be the
location of a commercial mail-receiving agency (“CMRA”). The defendant had expressly
authorized in writing that the CMRA could accept certified mail (including restricted
delivery mail) on her behalf, and one of the CMRA’s employees had signed the return receipt
for the summons and complaint. Accordingly, the court held that the CMRA was the
defendant’s agent for the purpose of receiving mail. The defendant contended that service
was not effective because the defendant had not specifically made the CMRA her agent for
service of process. The court rejected that argument because the language of the rule

does not require delivery to someone expressly authorized to receive service,
but rather, to “the person to be served.” . . . Because [the defendant]
unconditionally authorized her CMRA to accept certified mail on her behalf,
the CMRA’s acceptance of the summons and complaint delivered in that
manner sufficiently evidenced [the defendant’s] receipt of service.

Id. at 377. The authority to receive certified mail was sufficient in that case to vest the
CMRA with the authority to accept service of process, but only in the absence of a provision
requiring delivery to an agent authorized to accept service of process.

Based on the language of the Tennessee Rules of Civil Procedure and the
interpretation of analogous provisions by courts in other jurisdictions, we hold that a person
with the authority to sign for and receive certified mail does not, without more, qualify as an

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agent authorized by appointment to receive service of process on behalf of an individual
defendant. And, based on the undisputed facts in the record, we agree with the Court of
Appeals that Funderburk was not an agent authorized by appointment to accept service of
process on behalf of Dr. Haynes. Therefore, Plaintiff did not effectuate service of process
on Dr. Haynes when Funderburk signed the return receipt for the summons and amended
complaint. Accordingly, both of Plaintiff’s attempts to serve Dr. Haynes in this action failed
to comply with the relevant provisions of Tennessee Rule of Civil Procedure 4.

This holding in no way precludes a plaintiff who wishes to serve a defendant by mail
from doing so. When sending the summons and complaint via certified or registered mail,
the plaintiff may avoid the predicament in this case by restricting delivery to a specific
person. See Stonewall Ins. Co. v. Horak, 325 N.W.2d 134, 136 (Minn. 1982) (“prudence
would seem to dictate that restricted certified mail, which includes an endorsement on the
envelope to ‘deliver to addressee only,’ be used”). Also, the plaintiff is not limited to one
bite at the apple. If delivery by certified mail fails in the first instance, Rule 4.03(2)
expressly states that “service by mail may be attempted again or other methods authorized
by these rules or by statute may be used.”

B. On Corporations

Because Plaintiff did not effectively serve the original complaint, the viability of
Plaintiff’s lawsuit against MedSouth hinges on whether Plaintiff effectively served the
amended complaint on MedSouth by certified mail. With regard to the attempted service of
that amended complaint, the record establishes Plaintiff’s initial compliance with Rule
4.04(10). Plaintiff’s attorney addressed to Dr. Melton, the registered agent, a copy of the
summons and the amended complaint by certified mail, return receipt requested. According
to the plain language of Rule 4.03(2), however, service was not “complete” unless the
signatory of the return receipt was “a person designated by Rule 4.04.” 14 In this case,
Funderburk signed the return receipt, rather than Dr. Melton. As we have discussed supra,
Rule 4.04(4) designates “an officer or managing agent . . . [,] the chief agent in the county
wherein the action is brought, or . . . any other agent authorized by appointment or by law to
receive service on behalf of the corporation” as appropriate individuals to receive process for
a corporate defendant.

The dispositive question, therefore, is whether Funderburk fell within any of the
categories designated by Rule 4.04(4) or, per Rubio, was authorized by Dr. Melton as his
subagent for performing his duties as registered agent. We begin with the question of

14
A person designated by statute may also sign the return receipt, but the parties have not identified
any such statute that would have authorized Funderburk to sign on MedSouth’s behalf.

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whether Funderburk was MedSouth’s authorized agent to receive service. On this point the
deposition testimony of Funderburk, Dr. Melton, and Alred uniformly maintains that
Funderburk was not authorized to receive service of process on MedSouth’s behalf.
Furthermore, Funderburk did not check the “Agent” box on the return receipt when she
signed for the summons and amended complaint addressed to Dr. Melton.

Nonetheless, Plaintiff contends that Funderburk had authority to receive service of
process for MedSouth because she was authorized to receive and sign for certified mail
addressed to MedSouth. In our analysis of the attempted service by certified mail on Dr.
Haynes, we discussed the evidence supporting the conclusion that Funderburk was
authorized to sign for some certified mail delivered to the MedSouth clinic. That discussion
is equally applicable here. Nothing in the record suggests that Funderburk and her colleagues
in the administrative office treated certified mail addressed to MedSouth differently from
certified mail addressed to individual physicians who worked at the clinic. As she did with
Dr. Haynes’s mail, Funderburk testified that she placed MedSouth’s mail in Dr. Melton’s box
because the envelope had Dr. Melton’s name on it.

We must now decide whether the authority to sign for certified mail makes
Funderburk an agent authorized by appointment to receive service of process for MedSouth.
As with the attempted service on Dr. Haynes, Plaintiff relies on the Court of Appeals’
decision in Boles, 2000 WL 1030837.

As set forth above, the Court of Appeals in this case declined to follow Boles to the
extent it held that an agent was authorized to accept service of process solely on the basis of
having authority to sign for certified mail. Instead, the Court of Appeals concluded that
Funderburk was not authorized by appointment to receive service on behalf of MedSouth.
The intermediate court found nothing in the record to indicate that MedSouth had granted
Funderburk the express or implied authority to accept service on its behalf. The court further
reasoned that Funderburk’s job did not place her in a position that would make it fair,
reasonable, and just to imply the authority to accept service on MedSouth’s behalf. Rather
than fulfilling managerial duties or otherwise holding a position of authority, Funderburk was
a payroll clerk who happened to be one of several people in the administrative office whom
the mail carrier might ask to sign for certified mail.

The conclusion of courts in other jurisdictions interpreting comparably worded
provisions supports the Court of Appeals’ construction. In one case, a court was interpreting
a state rule directing service by delivery of the summons and complaint to “‘a person
authorized by the corporation to receive service of process.’” Dill v. Berquist Constr. Co.,
29 Cal. Rptr. 2d 746, 749 n.3 (Cal. Ct. App. 1994) (quoting Cal. Civ. Proc. Code §

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416.10(b)).15 The only evidence of agency in Dill was the purported agent’s signature in the
“Signature–Agent” line of the return receipt. Id. at 752. The court rejected the argument that
the authority to sign for mail meant the signatory was also authorized to accept service of
process within the meaning of the service statute. The court reasoned as follows:

Agents are not fungible. A person who is authorized to perform one function
on behalf of a principal may have no authority at all regarding a different
function. In particular, the fact that a person is authorized to receive mail on
behalf of a corporation and to sign receipts acknowledging the delivery of that
mail does not mean that the same person is authorized by the corporation to
accept service of process.

Id.

In another jurisdiction where the rule similarly permitted service on a corporation by
delivering the summons to an “agent authorized expressly or impliedly . . . to receive service

15
We should explain why we are citing a case from a jurisdiction whose law was relied on in
Boles and subsequently distinguished by the Court of Appeals’ decision in this case. To support the
proposition that an employee authorized to sign for and receive a defendant’s certified mail is likewise an
authorized agent to accept service of process on the defendant’s behalf, Boles cited a decision applying
California law. See Boles, 2000 WL 1030837, at *5 (citing Bay Plaza Mgmt. Co. v. Estep, 525 P.2d 56, 58
(Or. 1974)). By contrast, in the proceedings below, the Court of Appeals concluded that Bay Plaza
Management was distinguishable because (1) its analysis focused on the requirements of due process, rather
than procedural rules, and (2) California adopted “substantially different” rules, including one allowing a
finding of adequate service based on actual notice alone. Hall ex rel. Hall, 2009 WL 782761, at *11 & n.6.

As for the first distinction, we agree that Bay Plaza Management considered the authority to sign for
certified mail in the context of determining whether service was adequate under federal due process
standards, a question not raised in this appeal. That distinction alone is sufficient to undermine Boles’s
reliance on the Bay Plaza Management decision.

As for the second distinction, while actual notice does suffice in the context of serving corporations
under California rules, see Dill, 29 Cal. Rptr. 2d at 751 (quoting Pasadena Medi-Ctr. Assocs. v. Superior
Court, 9 Cal. 3d 773, 778 (Cal. 1973)), that notice must be received by one of the individuals enumerated
in the statute, such as a person authorized by the corporation to receive service of process, id. at 753. In the
context of Dill, the plaintiff argued that, despite his failure to address the summons and complaint to a proper
person, the signatory for the mailing was, in fact, “a person authorized by the corporation to receive service
of process,” and that signature established actual delivery to someone enumerated in the service statute. Id.
at 752. The question presented was whether the signatory had been authorized by the corporation to receive
service of process. Therefore, the difference in the underlying law does not detract from the similarity in the
language between the two rules and the persuasive authority of Dill’s analysis of a comparably worded
provision.

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of summons,” the trial court found effective service based on the purported agent’s authority
to sign for receipt of mail. See Sakovich v. O’Neill, No. C2-88-1073, 1989 WL 10407, at
*1 (Minn. Ct. App., February 14, 1989) (discussing Minn. R. Civ. P. 4.03(c)). In that case,
the certified mail receipts for the defendant medical clinic were signed by an individual who
worked at the clinic’s registration desk. The court of appeals reversed the trial court and
dismissed the action for lack of personal jurisdiction. Id. at *3. The court reasoned that the
absence of express authority was “undisputed” and there was “no evidence in the record to
establish a valid implied agency relationship between the [defendant] and the [signatory] for
purposes of accepting service of process.” Id. at *2 (emphasis added). Again, where the rule
specifically required that the agent be authorized to receive service of process, evidence of
the authority to sign for certified mail was insufficient to make service effective.

Based on the language of the Tennessee Rules of Civil Procedure and the
interpretation of analogous provisions by courts in other jurisdictions, we hold that a
corporate agent with the authority to sign for and receive the corporation’s certified mail does
not, without more, qualify as an agent authorized by appointment to receive service of
process on behalf of a corporate defendant. And, based on the undisputed facts in the record,
we agree with the Court of Appeals that Funderburk was not an agent authorized by
appointment to accept service of process on behalf of MedSouth. Likewise, the record here
provides no support for the kind of subagency relationship that the Court of Appeals found
in Rubio. Neither Dr. Melton nor Funderburk offered any testimony that would suggest Dr.
Melton appointed Funderburk as his subagent to perform any of his duties as registered
agent. Accordingly, both of Plaintiff’s attempts to serve MedSouth in this action failed to
comply with the relevant provisions of Tennessee Rule of Civil Procedure 4.

As we explained supra in reaching the same conclusion with respect to individual
defendants, our holding does not preclude a plaintiff from serving process on a corporation
by mail. A plaintiff may restrict delivery to any of the individuals designated in Rule 4.04(4).
Furthermore, in the event that service by mail is unsuccessful, Rule 4.03(2) expressly allows
the plaintiff to try service by mail again or use another method of process service authorized
by our Rules. Moreover, we agree with the Court of Appeals that Rule 4.04(10) gives
plaintiff an alternative means to effect service but does not permit plaintiff to serve persons
other than those expressly listed in 4.04(4). To hold otherwise, as the Court of Appeals did
in Boles, would run counter to Rule 4.03(2), which requires a return receipt “signed by the
defendant, or by a person designated by Rule 4.04 or by statute” to complete service by
certified mail.

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 III. Waiver by Participation

For the first time in this litigation, Plaintiff urges us in her brief to hold that
Defendants waived the service of process defense by participating in the litigation during the
approximately eighteen months after Defendants filed their answer and before they filed their
motion for summary judgment. However, because this issue was not raised below, it is
waived. Tenn. R. App. P. 13(a) advisory comm’n cmt. Even if considered on its merits,
however, this argument must fail.

“In pleading to a preceding pleading, a party shall set forth affirmatively facts in short
and plain terms relied upon to constitute . . . an affirmative defense.” Tenn. R. Civ. P. 8.03.16
Here, Defendants’ answer listed improper service and insufficiency of process as their first
affirmative defense. Defendants specifically pled that the summonses, complaint, and
amended complaint “were not delivered personally to Dr. Haynes or the authorized agent for
service of process for MedSouth Healthcare, P.C.”

Plaintiff concedes that this statement of facts is sufficient to satisfy the requirements
of Rule 8.03, and we agree. Plaintiff also admits that no Tennessee case has found the
defense waived under these circumstances, and that is also correct. Having adequately raised
insufficiency of process as an affirmative defense in their answer, Defendants did not waive
the defense by their continued participation in the lawsuit. See Toler v. City of Cookeville,
952 S.W.2d 831, 835 (Tenn. Ct. App. 1997) (holding that our Rules “directly contradict” the
argument that defendant waives defense of insufficient process by “merely filing an
answer”); see also State ex rel. Barger v. City of Huntsville, 63 S.W.3d 397, 399 (Tenn. Ct.
App. 2001) (after properly raising insufficiency of process by Rule 12.02 motion, “any other
participation in the lawsuit by the defendant does not constitute a waiver”); 5C Wright &
Miller, § 1391, at 505 (explaining that the same principle holds true in federal practice). The
lone Tennessee case cited by Plaintiff is distinguishable, for in that case the defendant
waived its insufficiency of process defense because its Rule 12 motion failed to recite the
supporting facts “in short and plain terms.” See Barker v. Heekin Can Co., 804 S.W.2d 442,
444 (Tenn. 1991) (discussing Tenn. R. Civ. P. 8.03).

Here, by contrast, Plaintiff simply invites this court to force Defendants’ hand by
requiring Defendants to file the dispositive motion on a properly pled defense
earlier—namely, before the expiration of the statute of limitations. We decline the invitation.

16
See also Tenn. R. Civ. P. 12.02 (“Every defense, in law or fact, to a claim for relief in any pleading
. . . shall be asserted in the responsive pleading thereto if one is required, except that the following defenses
may at the option of the pleader be made by motion in writing: . . . (5) insufficiency of service of process”).

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Defendants properly raised the defense in their answer and did not waive it prior to filing
their motion for summary judgment.

Because we hold that Plaintiff never effectively served Defendants with process and
that Defendants have not waived this defense, the one-year statute of limitations for
malpractice actions has run. See Tenn. Code Ann. § 29-26-116. Pursuant to Tennessee Rule
of Civil Procedure 3:

[i]f process . . . is not served within 90 days from issuance, regardless of the
reason, the plaintiff cannot rely upon the original commencement to toll the
running of a statute of limitations unless the plaintiff continues the action by
obtaining issuance of new process within one year from issuance of the
previous process . . . .

Here, Plaintiff obtained timely issuance of process in conjunction with both the original and
amended complaints. For the reasons stated supra, however, process was not effectively
served on either complaint within the ninety-day window. Because Plaintiff did not obtain
issuance of new process within one year of the issuance of the previous process, Plaintiff
cannot rely on the filing of the original lawsuit to toll the statute of limitations. As Plaintiff
concedes, by the time that Defendants filed their motion for summary judgment based on
insufficiency of process, the statute of limitations had already expired.

Conclusion

Because Enochs and Pruitt, the customer service representatives, were not agents
authorized by appointment to receive service of process on behalf of Dr. Haynes or
MedSouth, respectively, and Funderburk, the accounts payable clerk, was not an agent
authorized by appointment to receive service of process on behalf of Dr. Haynes or
MedSouth, service of process on these individuals did not constitute effective service of
process on either Dr. Haynes or MedSouth. Thus, the one-year statute of limitations on this
medical malpractice cause of action has run. See Tenn. Code Ann. § 29-26-116. Therefore,
we affirm the judgment of the Court of Appeals reversing the decision of the trial court and
remanding the case for entry of summary judgment in favor of Defendants. We tax the costs
of this appeal to Plaintiff Billie Gail Hall, as Surviving Spouse and Administratrix of the
Estate of Billy R. Hall, and her surety, for which execution may issue if necessary.

_________________________________
CORNELIA A. CLARK, JUSTICE

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