This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-95-2291

Tammie J. Newcomb,

Appellant,

vs.

Jeffrey Powers,

Respondent,

vs.

Zachary Culberson, defendant and third-party plaintiff,

Respondent,

Larhon Barnet, defendant and third-party plaintiff,

Respondent,

Stephen Gold, defendant and third-party plaintiff,

Respondent,

vs.

Credit General Insurance Company,

third-party defendants,

Respondent,

Peter Passolt, et al., Third-party defendants,

Respondents,

and

Peter Passolt, et al., third-party defendants and

fourth-party plaintiffs,

Respondents,

vs.

Christian Kraemer and Oakwood Agency, Inc.,

fourth-party defendants,

Respondents.

Filed May 28, 1996

Remanded

Amundson, Judge

Hennepin County District Court

File No. C6-95-2291

Susan M. Holden, Carol Lynn O'Gara, Sieben, Grose, Von Holtum, McCoy & Carey, Ltd., 900 Midwest Plaza East, Eighth and Marquette, Minneapolis, MN (for Appellant)

Charles E. Lundberg, Timothy S. Mangan, Mary L. Galvin, Bassford, Lockhart, Truesdell & Briggs, P.A., 3550 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55502 (for Respondents)

Considered and decided by Amundson, Presiding Judge, Crippen, Judge, and Willis, Judge.

U N P U B L I S H E D O P I N I O N

AMUNDSON, Judge

Tammie Jean Newcomb challenges the district court's grant of summary judgment on the issue of notice, arguing that the trial court erred in determining that she did not give actual notice of her dram shop claim. We remand.

FACTS

Respondent Stephen Gold is the owner and liquor license holder of The Classic Cafe and Bar (the bar) in St. Louis Park. On the evening of January 5, 1993, appellant Tammie Jean Newcomb and her boyfriend, Jeffrey Powers, went to the bar. They left the bar shortly after midnight. Zachary Culberson and Larhon Barnett, who had been in the bar, followed Newcomb outside and assaulted her in front of the bar near her boyfriend's parked car. Powers was injured when he tried to prevent the assault.

Newcomb was carried back into the bar, and one of the employees called an ambulance. Culberson and Barnett left the scene, but returned, claiming they had a gun, and threatened Newcomb and her boyfriend. After this threat, bar employees locked all the doors, and Newcomb stayed in the bar until the ambulance arrived.

Four days later, Newcomb and her boyfriend retained an attorney, Marlon Haugen, to pursue a civil action for her damages. [1] Haugen did not provide written notice of Newcomb's claim to Gold. Haugen claims, however, that about March 23, 1993, he called Gold and gave him notice of a possible claim by Newcomb. On August 4, 1993, Newcomb served a summons and complaint on Gold. Gold did not respond, and Newcomb moved for default judgment, which was granted. Gold successfully moved for vacation of the default order. The district court granted Gold's motion for summary judgment on the issue of notice. This appeal followed.

D E C I S I O N

A person claiming damages from a liquor licensee who causes intoxication by an illegal sale of alcoholic beverages must give written notice to the licensee, within 120 days of entering an attorney-client relationship, [2] regarding: (1) when and to whom the alcoholic beverages were sold; (2) the names and addresses of the injured parties; and (3) the time, date, and place of the injury. Minn. Stat. '§340A.802, subds. 1, 2 (1992). "Actual notice of sufficient facts reasonably to put the licensee * * * on notice of a possible claim complies with the notice requirement." Id., subd. 2. "No action for damage or for contribution or indemnity may be maintained unless the notice has been given." Id. The determination of whether a plaintiff complied with this notice provision is a jurisdictional matter to be disposed of by the court before the trial begins. May v. Strecker, 453 N.W.2d 549, 553-54 (Minn. App. 1990), review denied (Minn. June 15, 1990).

When a district court applies the statutory language to the undisputed facts of a case in determining the sufficiency of notice in a dram shop case, its conclusion is one of law and does not bind a reviewing court. Wallin v. Letourneau, 534 N.W.2d 712, 715 (Minn. 1995).

Newcomb concedes that she did not personally provide written notice of her claim within 120 days. Thus, the question is whether there was "[a]ctual notice of sufficient facts reasonably to put the licensee * * * on notice of a possible claim * * *. Minn. Stat. § 340A.802, subd. 2.

She argues that the following facts establish actual notice of both her injury and her claims against Gold within the 120-day statutory time period:

(1) the assault occurred right outside the bar and was viewed by at least one bar patron from a window at the bar;

(2) one of the bar's bouncers helped Newcomb back into the bar after the assault;

(3) one of the bar's employees, a bouncer, called the police and ambulance after the assault;

(4) Newcomb was taken away by ambulance after squad cars brought Culberson and Barnett back to the scene for identification;

(5) police officers spoke to bartenders and bouncers at the scene and determined that Culberson and Barnett had been drinking at the bar; and

(6) Newcomb's first attorney, Marlon Haugen, spoke with the bar's waitresses and bartenders, as well as licensee Gold and his insurance agent, about the claim within 120 days of Newcomb's entering the initial attorney-client relationship.

We do not agree with Gold's arguments that injuries that occur off the licensee's premises can never satisfy the "actual notice" requirement and that knowledge of an event by an employee of the bar is always legally insufficient to satisfy the "actual notice" requirement. However, we conclude that, given the facts of this case, the off-premises injury and the employees' knowledge of the fight were not sufficient to fulfill the statutory "actual notice" requirement.

Gold argues that Haugen had no documentation of the phone call to Gold and could not identify the date he called. It is true that Newcomb has not been able to provide documentation of the phone call to Gold. Although he could not identify the exact date, Haugen claimed in his affidavit that it was within 10 days of March 23, 1993.

Gold also argues that there was no reference to the call in Newcomb's Answer to Interrogatory No. 29. It is true that the phone call to Gold is not mentioned in Newcomb's answer to that interrogatory, which asked "If you provided notice to Steven Gold as required by Minn. Stat. § 340A.802, produce a copy of the notice and proof of receipt by Gold." This interrogatory could reasonably be construed as asking for the Minn. Stat. § 340A.802, subd. 1 "notice of injury." Newcomb concedes that no such notice was given in this case. If the interrogatory had also asked for any facts that would tend to give rise to actual notice, the failure to mention the call would have been a very serious omission. But it did not.

Haugen and Gold disagree over whether the phone call took place. Haugen stated in his affidavit that:

6. I relied upon notice given by me to Mr. Gold orally by telephone in a call by me to him about March 23, 1993 or with [sic] 10 days thereafter. * * * 20. On or about March 23, 1993 or within 10 days thereafter I talked to Mr. Gold personally by telephone. I stated that I was an attorney, I represented the injured parties and was making a claim based on a sale of liquor at the Classic. He said he had insurance for this sort of claim and requested that I call his insurance agent Christian Kraemer.

21. I called the agent Christian Kraemer 3 or 4 times. I reached him one time. He told me he would ask someone handling claims to call me. No one ever called me from the insurer.

At his deposition, Gold stated that:

I knew nothing of this incident for a long time. In fact, I'm trying to think, I got a Summons and Complaint, a server brought it in a long time after this. This was the first time I ever knew anything about this.

Q. So when you were served, if the records show August, I think it was August 3rd, 1993, that would have been your first knowledge that any incident had occurred.

A. That anything ever happened.

The district court stated:

In regards to Haugen's alleged phone call to Gold, the Court, without more, cannot say that this was sufficient to satisfy the actual notice provision of the statute. The Plaintiffs have not provided a specific date, time, or other information about this phone call to support a finding of actual notice.

If this were an ordinary case in which the question of whether one person called another person were at issue, we would hold that there was a genuine issue of material fact regarding whether Haugen called Gold to tell him about the claim, and we would remand the issue for trial. However, because notice is a jurisdictional issue in dram shop cases, the issue must be decided by the court before trial. It appears that the district court did not determine the factual issue of whether Haugen actually made the call he claimed to have made. Rather, the district court seems to have reached the legal conclusion that even if Haugen made the call, the actual notice provision was not met. Thus, we remand the case to the trial court for a finding regarding whether Haugen made a call to Gold some time around March 23, 1993, to inform him about the dram shop claim. If the court finds that he did make this call, then the actual notice provision is met, and Newcomb's claim may go forward. If the court finds that he did not make the call, then Newcomb's claim must be dismissed for lack of notice.


Footnotes

[1]Newcomb's current counsel was substituted for Haugen in March 1994.

[2]The statute now gives plaintiffs 240 days.