This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
CK Wegner, Inc.,
United Stage Equipment, Inc., an Alabama corporation,
Filed December 11, 2001
Reversed and remanded
Wright County District Court
File No. 86-C1-00-2536
David J. Lenhardt, Patrick W. Michenfelder, Gries & Lenhardt, P.L.L.P., 100 East Central Avenue, P.O. Box 35, St. Michael, MN 55376 (for respondent)
David K. Snyder, Timothy M. Kelley, Eckberg, Lammers, Briggs, Wolff, & Vierling, P.L.L.P., 1835 Northwestern Avenue, Stillwater, MN 55082 (for appellant)
Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Hanson, Judge.
Respondent, a Minnesota corporation, sued appellant, an Alabama corporation, for breach of contract and obtained a default judgment. Appellant challenges the district court order denying its motion to vacate the default judgment, contending that (a) the district court lacked personal jurisdiction because appellant was never served or, if service was made, it was upon a person who had no authority to receive service; and (b) the judgment should be vacated for excusable neglect. We reverse and remand with instructions to vacate the judgment and dismiss the complaint for insufficiency of service.
Respondent CK Wegner, Inc. (Wegner), a Minnesota corporation, obtained a default judgment against appellant United Stage Equipment (United), an Alabama corporation. United moved to vacate the judgment, pursuant to Minn. R. Civ. P. 60.02, and to dismiss the complaint under Minn. R. Civ. P. 12.02(d) for insufficiency of service.
Wegner provided an affidavit of service from a deputy sheriff in Alabama stating that personal service had been made on Karla Ricketts, secretary to the president of United. Ricketts and United’s president, Buzz Howell, each submitted counter affidavits, stating that no service had ever been received and, further, that Ricketts did not have authority to receive service. They described Ricketts’ duties as distributing mail, processing contracts, answering the telephone, preparing reports and performing data entry.
The district court concluded that service was properly made on Ricketts and denied United’s motion to vacate the default judgment. United then moved for amended and additional findings of fact and conclusions of law, contending that the district court had failed to make the necessary findings and that its conclusions regarding sufficiency of service were contrary to law. The court denied the motion, concluding again that service on Ricketts was proper. The court also concluded that United had failed to present a reasonable defense on the merits and denied its motion to vacate the judgment for excusable neglect. United appeals.
United argues that the district court erred by finding that respondent Wegner actually served Ricketts because Ricketts and Howell deny ever receiving a copy of the summons and complaint. When there is conflicting evidence, the question whether service was made is one of fact and the court’s findings on that question shall not be set aside unless clearly erroneous. Minn. R. Civ. P. 52.01; Dillon v. Gunderson, 235 Minn. 208, 213, 50 N.W.2d 275, 278 (1951).
The district court specifically found that “[a] Deputy Sheriff in Alabama served [United], an Alabama corporation.” The record contains a notarized affidavit of service from the Morgan County Sheriff’s Department showing that service was made “by serving a copy to Carla Ricketts, Secretary at United Stage, defendant(s), in the above case, on this 18 day of July, 2000.” A sheriff’s return or affidavit of service is strong evidence of proper service, which may be overcome only by the production of clear and convincing evidence to the contrary. Kueffner v. Gottfried, 154 Minn. 70, 73, 191 N.W. 271, 272 (1922).
Whether the affidavits submitted by United were clear and convincing evidence to prevail over the deputy sheriff’s proof of service is a fact question. We cannot say that the district court’s finding that service was made on Ricketts is clearly erroneous. The sheriff’s return is specific, proving the time and place of service and naming Ricketts as the recipient.
United argues alternatively that service on Ricketts was ineffective because she lacked authority to receive service. The question whether the service of a summons and complaint was effective 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).
Service on a domestic or foreign corporation is made by delivering a copy of the summons and complaint “to an officer or managing agent, or to any other agent authorized expressly or impliedly or designated by statute to receive service of summons.” Minn. R. Civ. P. 4.03(c). Personal service in a manner not authorized by Rule 4.03 is ineffective. See Duncan Elec. Co. v. Trans Data, Inc., 325 N.W.2d 811, 812 (Minn. 1982) (vacating default judgment because respondent did not personally serve appellant in manner authorized by Rule 4.03).
Wegner does not argue that Ricketts was an officer or an agent expressly authorized or designated under statute to accept service. On this record, only Howell fit these categories. Wegner also does not explicitly argue that Ricketts was a “managing agent.” However, in stating its argument that Ricketts had implied authority to receive service, Wegner actually refers to the legal test applicable to a managing agent. Accordingly, we will review the service on Ricketts under both categories.
The first question is whether Ricketts’ position as secretary to the president of United qualifies her as a “managing agent.” If not, then the query becomes whether Ricketts was cloaked with implied authority to receive service. Tullis v. Federated Mut. Ins. Co., 570 N.W.2d 309, 312-14 (Minn. 1997) (holding that an occupational therapist was not a managing agent and did not have implied authority to receive service on behalf of the therapy center). Both parties recognize that the burden of proof remained on Wegner to establish that Ricketts was a managing agent or had implied authority to receive service for the firm. Duncan Elec., 325 N.W.2d at 812.
[T]wo significant factors have evolved in determining whether a particular individual is a managing agent for service of process: (1) does the individual have the power to exercise independent judgment and discretion to promote the business of the corporation; or (2) is the individual’s position of sufficient rank or character to make it reasonably certain the corporation would be apprised of the service.
Tullis, 570 N.W.2d at 311 (citation omitted).
Prior cases have held that persons in the positions of occupational therapist, administrative assistant, staff counselor or office receptionist lack the power to exercise independent judgment and discretion on behalf of the corporation. Id. at 314; Duncan Elec., 325 N.W.2d at 812; Miller v. A.N. Webber, Inc., 484 N.W.2d 420, 422 (Minn. App. 1992) review denied (Minn. June 10, 1992); Winkel v. Eden Rehab. Treatment Facility, Inc., 433 N.W.2d 135, 140 (Minn. App. 1988). These cases establish that a secretary, receptionist or clerical worker are not typically authorized to exercise discretion or make business judgments for their employer.
Here, Wegner did not sustain its burden of proving that Ricketts’ position as secretary conferred on her the type of management powers sufficient to qualify her as a managing agent. Wegner did not present any independent evidence, but relied upon the affidavits submitted by United. Those affidavits described Ricketts’ position as being largely clerical. Wegner relied on the statement in Ricketts’ affidavit that she would have notified president Howell had she been served. But Ricketts’ status as a managing agent depends on her powers and position, not on her statement of good intentions. See, e.g., Duncan Elec., 325 N.W.2d 812 (stating that willingness of employee to accept process and her self-designation as an administrative assistant were insufficient); Tullis, 570 N.W.2d at 312 (holding that an employee’s self-designation as executive director, a position he no longer held, was insufficient). Wegner was required to prove that the position Ricketts held at United, and the duties and responsibilities that accompanied that position, qualified her as a managing agent. See Tullis 570 N.W.2d at 312-313. It did not do so.
The parties, and some prior cases, mistakenly use the “managing-agent” factors as the test for implied authority. See, e.g., Winkel, 433 N.W.2d at 138 (stating “[t]o establish implied authority, Winkel must offer circumstantial evidence tending to prove that Cisewski, as a staff counselor, had power to exercise independent judgment and discretion in promoting the business of the corporation or that her position was of such character and rank as to make it reasonably certain that the corporation would be apprised of the service.”). “Implied authority is a broader concept than the more restrictive definition of managing agent.” Tullis, 570 N.W.2d at 313.
Implied authority is actual authority, circumstantially proved, and is to be construed under common law principles of agency. Thus, implied authority includes only such powers directly connected with and essential to carrying out the duties expressly delegated to the agent. * * * Implied authority is inferred from a course of dealing between the principal and the agent.
Id. (citations and quotations omitted). All implied authority must be traced to the principal’s dealings with the agent; it cannot be inferred from the agent’s dealings with third parties and does not include apparent authority. Id.
Wegner argues that Ricketts’ secretarial position is similar to that held by the secretary in Amdahl, where it was determined that an executive secretary had implied authority to accept service of process. Amdahl, 484 N.W.2d at 814. There, the secretary’s written job description charged her with the duty of controlling law suits and legal paper flow within the insurance company where she worked. Id. at 814. Moreover, the secretary in Amdahl had, with the president’s knowledge, accepted service of process on behalf of the company for more than ten years, keeping a log at her desk. Id.
Unlike the executive secretary in Amdahl, there is no evidence that any of Ricketts’ secretarial duties required United to grant her the power to accept service of process. Ricketts’ self-description of her position shows it to be clerical in nature: answering phones, distributing mail, preparing reports and performing data entry. The acceptance of service of process is neither directly connected with nor essential to the performance of these functions. Ricketts had only been employed by United for five months prior to the attempted service by Wegner, and there was no evidence that she had ever accepted service of process on its behalf, either before or after the attempted service in this case. Her responsibilities do not include the control of legal paperwork. Therefore, Wegner’s reliance on Amdahl is misplaced.
In sum, Wegner did not sustain its burden of proof on implied authority. It offered no circumstantial evidence tending to prove that United delegated the type of responsibilities to Ricketts that would manifest consent by United that she should act on its behalf. See Winkel, 433 N.W.2d at 139 (holding that there was no implied authority where there was no material evidence anyone in management position manifested consent for counselor to have authority to accept service). As a result, we conclude that the district court erred in failing to set aside the judgment as void for lack of personal jurisdiction.
We need not address appellant’s remaining ground for vacation of the default judgment. We reverse and remand with instructions to vacate the default judgment and to dismiss the complaint for insufficiency of service.
Reversed and remanded.
 United also refers us to the unpublished decision of this court in Televentures, Inc. v. Auto-Owners, Ins. Co., 1996 WL 410406 (Minn. App. 1996) (holding that the position of a law firm receptionist did not involve the exercise of judgment or discretion regarding the firm’s business).