IN COURT OF APPEALS
Shamrock Development, Inc.,
Dakota Turkey Farms, Limited Partnership,
Filed August 21, 2007
Affirmed; motion granted
Hennepin County District Court
File No. 27-CV-06-5976
Stanford P. Hill, David A. Turner, Bassford Remele, P.A., 33 South Sixth Street, Suite 3800, Minneapolis, MN 55402 (for respondent)
Timothy J. Mattson, Charles J. Schoenwetter, Bowman & Brooke, LLP, 150 South Fifth Street, Suite 2600, Minneapolis, MN 55402 (for appellants)
Considered and decided by Stoneburner, Presiding Judge; Kalitowski, Judge; and Dietzen, Judge.
S Y L L A B U S
1. A party may bring a civil action to renew a judgment, provided that the action is commenced within ten years after entry of the original judgment and the party complies with all the requirements for commencing a civil action.
2. An appellate court will reverse findings of fact related to the sufficiency of service by publication under Minn. R. Civ. P. 4.04 only if the findings are clearly erroneous.
3. When a summons substantially complies with all other requisites for an effective summons, the failure to include a statement providing the opposing party with information about alternative dispute resolution, as required by statute, does not create a jurisdictional defect requiring dismissal of the case.
Appellants challenge the district court’s denial of their motion to dismiss, arguing that the district court erred in concluding that (1) respondent satisfied the requirements of Minn. R. Civ. P. 4.04(a)(1) for service of process by publication, (2) the affidavit in support of service by publication was not “manifestly false,” and (3) the summons was not defective. Because we conclude that the district court properly applied the law and did not abuse its discretion, we affirm.
Farm Credit Leasing Services
Corp. (FCL) was en
In September 1991, Wild Rice
Farms assigned its obligations under the lease to defendant Dakota Turkey Farms
Subsequently, Dakota and Burtness defaulted on both leases. In April 1993, the parties entered into a settlement agreement and a “Stipulation for Entry of Judgment,” which acknowledged the debt and that the Smiths were each “individually and jointly and severally indebted to FCL.” The Smiths and their co-obligors subsequently defaulted on their payments, and FCL filed the stipulation with the court and sought judgment. In April 1996, the Hennepin County District Court entered judgment against the Smiths and the rest of the debtors in the amount of $825,620.79. Shortly thereafter, FCL assigned the judgment to respondent Shamrock Development, Inc. (Shamrock). Following the assignment, Burtness was released from the judgment, but the Smiths and Dakota remained as judgment debtors.
Before the ten-year
limitation on actions to enforce judgments expired, Shamrock sought to locate
the Smiths in order to bring an action to renew the judgment. Using Accurint, an Internet database that is
widely used to locate persons for service of process, Shamrock learned that
from April 1996 to October 2000, both of the Smiths used an address in
Shamrock searched the U.S. Bankruptcy Court filings for
Because Shamrock was unable to locate Randall Smith, it commenced service by publication under Minn. R. Civ. P. 4.04(a)(1). Less than ten days after the completion of publication, the Smiths filed a limited and special appearance and challenged personal jurisdiction. Shamrock then served a copy of the complaint on the Smiths’ attorney under Minn. R. Civ. P. 4.042.
The Smiths moved to dismiss the complaint for lack of jurisdiction. Following a hearing, the district court denied the motion to dismiss. Subsequently, the district court denied appellants’ motion for reconsideration. Appellants then filed two appeals with this court. In the present appeal, appellants challenge the district court’s denial of their motion to dismiss for lack of jurisdiction, arguing that the summons was invalid and that service of process was insufficient. In a second appeal, appellants challenged the order denying their motion to reconsider, which order concluded that the judgment had been renewed. This court dismissed the second appeal because an order denying a motion to reconsider is not independently appealable.
I. Did the district court err in determining that service of process by publication on Randall Smith was sufficient to confer jurisdiction?
II. Did the district court err in determining that the summons served on appellants was valid?
III. Should this court strike portions of appellants’ appendix and brief?
Appellants argue that Shamrock failed to comply with the requirements of Minn. R. Civ. P. 4.04, which governs service of process by publication. Appellants specifically argue that Shamrock failed to renew its judgment on a timely basis and failed to satisfy the requirements for service by publication. We disagree.
A. Renewal-of-Judgment Actions
A judgment “survives, and
the lien continues, for ten years after its entry.” Minn. Stat. § 548.09, subd. 1 (2006). But “[n]o action shall be maintained upon a
judgment or decree of a court of the
The procedure for renewing a
judgment is not specifically prescribed by statute, but caselaw indicates that
actions are routinely brought to renew judgments so that the judgments extend
beyond the initial ten-year period. For
example, in Tharp v. Tharp, our
supreme court addressed “an action to renew a judgment.” 228
We conclude that a party may
bring an action to renew a judgment, provided that (1) the action is commenced
within ten years after entry of the original judgment, and (2) the party complies with all the requirements for
commencing a civil action. Appellants
argue that Shamrock was not diligent because it did not start its search and
commence the action until shortly before the statute of limitations was to
expire. See generally Tharp, 228
B. Service of Process
Randall Smith contends that Shamrock “failed to comply with the requirements of
Minn. R. Civ. P. 4.04” for service of process by publication. In
Compliance with the rules
governing the commencement of an action is a jurisdictional requirement. Schuett
v. Powers, 288
Randall Smith first argues that review of the district court’s order regarding service by publication is de novo. Shamrock agrees that whether an action has been commenced in accordance with the rules is a jurisdictional issue, which we review de novo. But Shamrock argues that the district court’s findings regarding the factual assertions in the affidavit of publication are reviewed under the clearly erroneous standard. We agree with Shamrock.
Whether a summons has been
properly served is a question of law subject to de novo review. Amdahl v. Stonewall Ins. Co., 484
N.W.2d 811, 814 (Minn. App. 1992), review denied (Minn. July 16, 1992); see
also McBride v. Bitner, 310
N.W.2d 558, 561-63 (
Essentially, Randall Smith
makes three arguments. First, he argues
that the affidavit in support of publication does not contain the required
jurisdictional facts. We disagree. Service by publication is sufficient to
confer jurisdiction over a party only if the affidavit in support of
publication contains the required jurisdictional facts. Schuett, 288
Here, Shamrock’s affidavit stated that (1) Randall Smith is a “resident individual domiciliary who has departed from the state of Minnesota with intent to defraud creditors, or to avoid service, or remains concealed with the like intent,” (2) Randall Smith is not a resident of the state and cannot be found herein, and (3) Randall Smith’s place of residence or address is unknown for service of process. Thus, the affidavit contained the required jurisdictional facts.
Second, Randall Smith argues
that he was never a resident of
Here, the record supports
the district court’s finding that Shamrock conducted a diligent search. Shamrock’s attorneys conducted an Accurint
search, which revealed a residential address that was connected to both
appellants between 1996 and 2000, and it attempted to serve process at that
address. Shamrock also searched
bankruptcy court filings and was unable to locate either appellant. Shamrock then employed a private
investigator, who located Denison Smith in
Smith, nonetheless, argues that Shamrock could have called appellants’ former
attorney or made additional use of previous addresses contained in affidavits
of debtor identification that were filed in connection with the original
judgment. But the affidavits of
identification were submitted by FCL’s attorneys, and the information contained
therein was older than the information uncovered by Shamrock’s Accurint
search. And Shamrock’s attorneys
presented evidence showing that the same search methods they used here had been
used successfully to locate parties for service in previous cases. Also,
Third, relying on McBride, 310 N.W.2d at 562, Randall Smith argues that Shamrock has not proven that he “is a resident individual domiciliary having departed from the state,” as required by Minn. R. Civ. P. 4.04(a)(1). But McBride is distinguishable.
In McBride, a defendant in a wrongful-death
suit was a resident of
Our case is factually distinguishable because, unlike the plaintiff in McBride, Shamrock submitted an affidavit under rule 4.04 and expressly stated the required jurisdictional facts. Also, the district court conducted an evidentiary hearing in this case to determine whether the affidavit complied with the rule. Following the hearing, the district court found that Shamrock had exercised due diligence in attempting to locate Randall Smith, that the affidavit was made in good faith, and that the factual assertions therein were supported by the record.
We read rule 4.04(a)(1) to require that Shamrock establish that the affidavit was made in good faith, that the factual assertions are supported by the record, and that Shamrock exercised due diligence in attempting to locate Randall Smith. Here, the district court found that Shamrock’s affidavit was made in good faith, that Shamrock had reason to believe that Randall Smith was a resident of Minnesota but had left the state with intent to defraud creditors or avoid service of process, and that Shamrock had exercised due diligence in attempting to locate Randall Smith. The record supports the district court’s findings, and they are not clearly erroneous.
Appellants argue that the summons was defective because it failed to provide information about alternative dispute resolution (ADR) as required by Minn. Stat. § 543.22 (2006).
The interpretation of a
statute or rule raises a question of law, which we review de novo. Brookfield Trade Ctr., Inc. v. County of
Ramsey, 584 N.W.2d 390, 393 (
In 1951, the Minnesota Supreme Court adopted rules of civil procedure to govern all suits of a civil nature, subject to certain exceptions. Rule 4.01, which was adopted in 1951 and has been amended from time to time, states that a summons must
state the name of the court and the names of the parties, be subscribed by the plaintiff or by the plaintiff's attorney, give an address within the state where the subscriber may be served in person and by mail, state the time within which these rules require the defendant to serve an answer, and notify the defendant that if the defendant fails to do so judgment by default will be rendered against the defendant for the relief demanded in the complaint.
In 1999, the legislature enacted Minn. Stat. § 543.22, which provides:
When a civil case is commenced against a party, the summons must include a statement that provides the opposing party with information about the alternative dispute resolution process as set forth in the Minnesota General Rules of Practice.
The statute does not provide
a remedy for failure to comply with the statute. Rule 114 of the general rules of practice provides
that ADR is required for nearly all civil cases filed in district court.
Appellants rely heavily on Tharp, 228
Here, the summons contained all the requirements set forth in rule 4.01. Although the summons did not include the ADR information, this omitted information was not essential for appellants to answer and defend the claim and was, therefore, in the nature of a technical defect. Cf. Haas, 418 N.W.2d at 513 (holding that the failure to include statutorily required signed acknowledgment of potential liability for costs and disbursements in a complaint was not jurisdictional defect requiring district court to dismiss case). Therefore, we conclude that the district court did not err in determining that the summons was sufficient and in denying the motion to dismiss.
moves to strike portions of appellants’ appendix, and all references thereto because
they were filed after the order denying the motion to dismiss and outside the
record of this appeal. Appellants argue that
the material contained in the appendix is part of the motion for
reconsideration and, therefore, is properly before this court. Generally, documents may not be included in a
party’s brief unless they are part of the appellate record. Fabio v. Bellomo, 489 N.W.2d 241, 246
(Minn. App. 1992), aff’d, 504 N.W.2d 758 (
D E C I S I O N
Because the summons substantially complied with the applicable rules and statutes, and because the district court did not clearly err in determining that Shamrock complied with the rules regarding service of process, the district court did not err in denying appellants’ motion to dismiss.
Affirmed; motion granted.
On appeal from an order, the appellate court may review any
other orders affecting the order from which the appeal is taken.
 Denison Smith was served personally with a summons and complaint and does not challenge service of process.