IN COURT OF APPEALS
John Miernicki, et al.,
Filed July 5, 2005
St. Louis County District Court
File No. C1-03-600862
Robert E. Mathias, Mathias Law
Diane B. Bratvold, Marcia K. Miller, Paula Vraa, Rider Bennett, LLP, 33 South Sixth Street, Suite 4900, Minneapolis, Minnesota 55402 (for respondents)
Considered and decided by Hudson, Presiding Judge; Stoneburner, Judge; and Dietzen, Judge.
Filing a complaint without a plaintiff’s knowledge does not toll a statute of limitations.
O P I N I O N
The complaint in this dram-shop action against respondents was filed without the knowledge of appellants, the plaintiffs, by an attorney whom they had not retained. Respondents moved for summary judgment on the ground that the statute of limitations had expired before appellants ratified the attorney’s action in filing the complaint. The motion was denied, and the matter proceeded to trial. A jury awarded appellants collectively $20,000. Appellants challenge the award, and respondents challenge the denial of summary judgment. We do not address the merits of appellants’ appeal because we conclude that the district court erred as a matter of law in denying summary judgment for respondents. We reverse the judgment awarded to appellants, and we reverse the denial of summary judgment to respondents.
Lynn Miernicki, 67, spent the evening of December 21, 2000, drinking at respondent Duluth Curling Club (DCC). In the early morning of December 22, with an alcohol concentration of 0.30, he fell down a flight of stairs and sustained a brain injury. He can no longer communicate or perform basic functions; he lives in a nursing home.
Sometime after the accident, Miernicki’s brother, Mike Miernicki, retained an attorney. On December 20, 2002, two days before the statute of limitations expired, the attorney filed a complaint in a dram-shop action against DCC in the names of appellants, Miernicki’s three adult children. They had not retained the attorney and were not aware that the complaint was being filed.
In October 2003, DCC served a motion for summary judgment on the ground that appellants had not complied with Minn. Stat. § 340A.802 (2002), requiring them to give notice of a potential dram-shop action within 240 days of retaining counsel and to bring the action within two years of an injury. In November 2003, before the hearing on the summary-judgment motion, each appellant executed an affidavit. Miernicki’s son, appellant John Miernicki, said, “I was not aware that I was a party to a liquor liability lawsuit until after suit had been filed in my name. . . . I have never signed a formal retainer Agreement [of the attorney who filed the action] . . . .” Miernicki’s daughters, appellants Julie Hienricy and Mary Raimo, each said, “I was told by my uncle, Mike Miernicki, that a lawsuit had been started sometime after the case had been started. . . . I have not yet signed a written retainer agreement . . . .” All three appellants said they ratified their uncle’s hiring of the attorney.
DCC’s summary-judgment motion was denied. On appeal, DCC filed a notice of review of that denial.
Does filing a complaint without the plaintiff’s knowledge toll a statute of limitations?
“This court reviews de novo the
district court’s decision on summary judgment based on the application of a
statute.” Davies v. West Pub.
The purpose of a statute
of limitations is “to prescribe a period within which a right may be enforced
and after which a remedy is unavailable for reasons of private justice and
public policy.” Entzion v. Ill. Farmers Ins. Co., 675 N.W. 2d 925, 928 (
record shows that appellants did not retain an attorney, plan to bring an
action, or know that an action had been brought until after December 22, 2002,
when the statute of limitations expired.
They argue that their subsequent ratification of their uncle’s retention
of the attorney who brought the action in their name tolls the statute of
D E C I S I O N
Because appellants’ ratification of the action filed in their name occurred after the statute of limitations had expired, the filing was ineffective against DCC. We reverse the judgment awarded to appellants and the denial of summary judgment to respondents. Respondents are entitled to summary judgment.
 In their affidavits, appellant Julie Hienricy said she was incorrectly identified in the action as Julie Miernicki and appellant Mary Raimo said she was incorrectly identified as Mary Ravio.
We also note that, even if the attorney had a good-faith belief as to appellants’ willingness to bring this lawsuit, bringing it without their knowledge and without having been retained by them is counter to the scope of representation set out in Minn. R. Prof. Conduct. 1.2.