IN COURT OF APPEALS
Denise M. Smith,
Harold J. Flotterud, et al.,
Filed June 20, 2006
Goodhue County District Court
File No. CX-04-1742
Daniel J. Moulton, Moulton Law
Steven L. Viltoft, Lee La Bore, La Bore, Giuliani, Cosgriff & Viltoft, Ltd., 10285 Yellow Circle Drive, P.O. Box 70, Hopkins, MN 55343; and Matt C. Rockne, Rockne Law Office, 385 Main Street, P.O. Box 7, Zumbrota, MN 55992 (for respondents)
Considered and decided by Kalitowski, Presiding Judge; Willis, Judge; and Shumaker, Judge.
S Y L L A B U S
For service of process under rule 4 of the Minnesota Rules of Civil Procedure to be sufficient, it must be made knowingly and intentionally.
O P I N I O N
Appellant challenges the district court’s dismissal of her complaint for insufficient service of process. Because the record shows that service was not made knowingly and intentionally and because appellant did not substantially comply with rule 4 of the Minnesota Rules of Civil Procedure, we affirm.
On September 30, 1998, appellant
Denise M. Smith was involved in a motor-vehicle accident in
Little spoke to Valerie Leonard, a woman who lived near Harold Flotterud’s house, to ask if she knew where Harold Flotterud was and told her that he “had some papers to serve on Mr. Flotterud.” Leonard told Little that she knew Flotterud’s son and could get “the papers” to him. Little, who subsequently admitted that he had no training as a process server, gave Leonard an envelope with Harold Flotterud’s name on it and left. Leonard then dropped off the envelope at the home of Harold Flotterud’s son, handing it to the son’s teenage daughter. The daughter in turn gave the envelope to her mother, who subsequently gave it to her husband, who is Harold Flotterud’s son, Ronald Flotterud. The parties stipulate that Ronald Flotterud had power of attorney for his father and had the legal authority to receive service of process on his father’s behalf. Ronald Flotterud gave the summons and complaint to his father’s insurance agent, and the insurance company hired an attorney to represent Harold Flotterud in the suit.
In April 2004, Harold Flotterud served Smith with an answer, in which he raised several defenses, including the insufficiency of service of process. Harold Flotterud never was served with a copy of the summons and complaint at the nursing home. The statute of limitations on Smith’s claims expired on September 30, 2004.
In December 2004, Harold Flotterud moved to dismiss, arguing that Smith failed to obtain personal service on him. The district court subsequently issued an order concluding that “service of process was not accomplished by the giving of the summons to Mrs. Leonard” and reserving a ruling, until an evidentiary hearing could be held, on “the remaining issue of whether service was accomplished by Mrs. Leonard leaving the papers with Ron Flotterud’s daughter.” After the evidentiary hearing, the district court granted Harold Flotterud’s motion to dismiss Smith’s complaint, concluding that because Leonard did not know that “the envelope contained papers intended to initiate a lawsuit,” service of process was not made knowingly and intentionally and that, therefore, “service of process was not accomplished.” This appeal follows.
Did the district court err by concluding that there was insufficient service of process?
A determination of whether service
of process was proper and the interpretation of the rules of civil procedure
are both questions of law, which are reviewed de novo. Amdahl
v. Stonewall Ins. Co., 484 N.W.2d 811, 814 (
Smith argues that the district court
“was wrong to require that Leonard’s service be knowingly and intelligently
made.” She claims that this “requirement
was made by the [
Lee, the supreme court concluded that
“[t]he service of a summons as authorized by [section] 543.03 and the making of
proof thereof in compliance with [section] 543.14, by necessary statutory implication, requires that the act of
effecting such service upon a defendant be performed both knowingly and intentionally.” 231
Smith appears to challenge the
district court’s finding that Leonard did not know that she was delivering a
summons and complaint to Ronald Flotterud’s house when Smith states in her
brief that this court “should be reminded that in Ms. Leonard’s first affidavit
it was clear that she understood Mr. Little was a process server and had papers
to serve on Harold Flotterud.” A
district court’s findings “shall not be set aside unless clearly erroneous.”
In the alternative, Smith argues
that despite any deficiency in service resulting from the fact that Leonard did
not serve the summons knowingly and intentionally, service of process was still
effective because Ronald Flotterud received actual notice of the lawsuit, thereby
satisfying due-process requirements.
When “the intended recipient receives actual notice of the action, the
rules governing such service should be liberally construed ‘to avoid depriving a
litigant of his day in court.’” Pederson v. Clarkson Lindley Trust, 519
N.W.2d 234, 235 (Minn. App. 1994) (quoting Indep.
Sch. Dist. No. 273 v. Gross, 291
Here, the record shows that the summons was not, as required by rule 4.03, served on Harold Flotterud personally or left with a person of suitable age or discretion residing at Harold Flotterud’s usual place of abode, which the district court concluded was the nursing home. Instead, the record shows that when Little found no one at Harold Flotterud’s house, he gave the envelope containing the summons and complaint to an unrelated third party who, without knowing what the envelope contained, agreed to deliver it to Harold Flotterud’s son and gave the envelope to the son’s teenage daughter, who gave it to her mother, who gave it to her husband, Ronald Flotterud, who, it was later discovered, had power of attorney for his father. We conclude that this combination of events that led to Ronald Flotterud receiving notice of the lawsuit against Harold Flotterud was not the result of substantial compliance with rule 4 of the rules of civil procedure.
Because Leonard did not knowingly and intentionally serve Ronald Flotterud with the summons and because Smith’s attempted service did not substantially comply with rule 4 of the Minnesota Rules of Procedure, the district court did not err by concluding that service of process was insufficient and dismissing the complaint.
 Rule 4.02 provides that “the sheriff or any other person not less than 18 years of age and not a party to the action, may make service of a summons,” while repealed section 543.03 provided that “[t]he summons may be served by the sheriff of the county in which the defendant is found, or by an other person not a party to the action.” Rule 4.06 provides that “[s]ervice of summons and other process shall be proved by the certificate of the sheriff or other peace officer making it, [or] by the affidavit of any other person making it,” while repealed section 543.14 provided that “[s]ervice of summons and other papers shall be proved as follows: (1) If made by the sheriff or other officer thereunto authorized by law, by his certificate; if by any other person, by his affidavit.”