may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Presswrite Printing, Inc.,
Filed June 8, 1999
Hennepin County District Court
File No. 9810574
Daniel Q. Poretti, John J. Wackman, Rider, Bennett, Egan & Arundel, L.L.P., 2000 Metropolitan Center, 333 South Seventh Street, Minneapolis, MN 55402 (for appellant)
Susan Dickel Minsberg, 225 Commerce at the Crossing, 250 Second Avenue South, Minneapolis, MN 55401 (for respondent)
Considered and decided by Harten, Presiding Judge, Klaphake, Judge, and Willis, Judge.
Appellant Summertime Distributing, Inc. challenges the district court's denial of its motion to vacate the default judgment entered in favor of respondent Presswrite Printing, Inc. Appellant argues that the default judgment is void due to ineffective service and that its failure to file a timely answer was due to a reasonable excuse. We reverse.
After shipping, the binding broke on some of the catalogues and some were missing pages. Strange claims that Summertime Distributing hired an additional customer service employee to answer the calls of dissatisfied customers. Presswrite picked up the 5,446 catalogues that remained in stock, but it corrected and returned only 3,707 catalogues; Summertime Distributing incurred additional postage to send out the corrected catalogues. Presswrite contends that it offered to credit Summertime Distributing for catalogue replacement and additional mailing costs, but Summertime Distributing never provided proof of the replaced catalogues or the additional postage costs. For the 1998 catalogues, Summertime Distributing paid Presswrite $43,380.37 of its $47,294.13 billing. According to Summertime Distributing, this reduced payment was because of catalogue shortages, inconvenience caused by the defective catalogues, and other work undertaken to correct catalogue deficiencies.
In January 1998, Summertime Distributing decided to distribute a flyer featuring its "Specials." According to Presswrite, it offered to design the flyer at no cost to Summertime Distributing. Summertime Distributing contends that Presswrite offered both to design and produce the flyer at no charge. Presswrite provided the flyer and it was distributed in early 1998, but Summertime never paid for its production.
On May 27, 1998, Presswrite attempted to serve Summertime Distributing with a summons and complaint. The complaint alleged breach of contract and sought $12,690.72 in damages. The process server left the summons and complaint with Melanie Seidel, the manager of Summertime Tanning. Strange eventually received the summons and complaint. In response to Presswrite's attempted service, Strange sent a four-page letter explaining Summertime Distributing's position. On June 6, 1998, the process server again attempted to serve Strange (as president of Summertime Distributing) by delivering the summons and complaint to her in the hospital while she was recuperating from back surgery. According to the process server, Strange was "out of sorts," but he was able to verify her identity by speaking to her. The process server then "placed the Summons and Complaint on the bed near her hand and apologized for having to do so." According to Strange's brother, who was in the hospital room, Strange was completely incapacitated at the time of the attempted service due to intravenous administration of morphine and she did not speak with the process server.
On June 8, 1998, counsel for Presswrite sent a letter to Summertime Distributing indicating that its letter of June 3, 1998, would not be accepted as an answer. No timely answer followed, and Presswrite sought and obtained a $13,379.15 default judgment. The judgment was entered and docketed on July 8, 1998. On September 17, 1998, Summertime Distributing brought a motion to vacate the default judgment; the motion was denied by the district court, and this appeal followed.
Summertime Distributing challenges the district court's denial of Summertime Distributing's motion to vacate the default judgment, arguing that the judgment is void because service of process was improper. The construction of a court rule and the question of validity of service involve issues of law, which we review de novo. See Stoebe v. Merastar Ins. Co., 554 N.W.2d 733, 735 (Minn. 1996) (examining rule of civil procedure under de novo standard).
Minn. R. Civ. P. 4.03(c) states that service on a corporation must be 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 * * *.Service of process in a manner not authorized by rule 4.03(c) is ineffective service. See Duncan Elec. Co. v. Trans Data, Inc., 325 N.W.2d 811, 812 (Minn. 1982) (service of process upon individual without express or implied authority was ineffective). Under rule 4.03:
Personal service requires only that the plaintiff attempt to serve the summons and complaint on the defendant and that the defendant be made aware that the documents are being served.
Blaeser and Johnson, P.A. v. Kjellberg, 483 N.W.2d 98, 102 (Minn. App. 1992) (citing 1 David F. Herr & Roger S. Haydock, Minnesota Practice, § 4.9, at 56 (1985)), review denied (Minn. June 10, 1992). "A judgment entered without due service of process is absolutely void * * *." Zions First Nat'l Bank v. World of Fitness, Inc., 280 N.W.2d 22, 25 (Minn. 1979) (citation omitted).
Here, Presswrite twice attempted to serve process on Summertime Distributing. Initially, the process server left a copy of the summons and complaint with Melanie Seidel, the manager of Summertime Tanning, not Summertime Distributing. Seidel is not an officer or managing agent of Summertime Distributing, and Presswrite does not contend that Seidel was expressly or impliedly designated to receive service. Accordingly, the first attempt to serve Summertime Distributing did not comply with rule 4.03(c) and was inadequate as a matter of law. See Minn. Stat. § 5.25, subd. 1 (Supp. 1997) (providing who may be served).
Apparently recognizing that the first attempt to serve process was questionable, the process server made a second attempt to serve Strange. According to the process server, Strange was awake, but "quite out of sorts," when he approached her in her hospital room. In his affidavit, the process server stated that he spoke with Strange, verified her identity, placed the summons and complaint on the bed near her hand, and apologized for the intrusion. According to Darrel Volner (Strange's brother) the process server did not speak with Strange. Volner swore in his affidavit that Strange was totally unaware of the incident.
Under these facts, we conclude that the Blaeser requirements have not been met. Volner's sworn statement shows that Strange was not, and could not have been, made aware that she was being served with process. Further, the process server's sworn statement fails to indicate that he informed Strange that he was serving process, despite his acknowledgement that Strange was "out of sorts" as she lay in the hospital bed. Because nothing in the record shows that Strange was made aware that she was being served with process, the second attempt to serve Summertime Distributing was ineffective.
Notwithstanding the ineffectiveness of both attempts to serve process, Presswrite argues that the default judgment may be preserved by the "actual notice" exception to rule 4.03(c). As the supreme court has noted, "actual notice of the lawsuit will not subject defendants to personal jurisdiction without substantial compliance with Rule 4.03." Tullis v. Federated Mut. Ins. Co., 570 N.W.2d 309, 311 (Minn. 1997) (citing Thiele v. Stich, 425 N.W.2d 580, 584 (Minn. 1988)). In Thiele, however, the supreme court clearly stated that the "actual notice" exception has been recognized only in cases involving substitute service at a defendant's residence. 425 N.W.2d at 584. See also Blaine v. Anoka-Hennepin Ind. Sch. Dist. No. 11, 498 N.W.2d 309, 314-15 (Minn. App. 1993) (noting that the requirements of statutory service are not eliminated by the fact that the defendant learns of an attempted service), review denied (Minn. June 22, 1993).
Nevertheless, Presswrite cites Amdahl v. Stonewall Ins. Co., 484 N.W.2d 811 (Minn. App. 1992), review denied (Minn. July 16, 1992), for the proposition that the "actual notice" exception may also be applied to the personal service of process on a corporation. In Amdahl, we determined that process was effectively served on a corporation where the summons and complaint were delivered to the president's executive secretary. 484 N.W.2d at 814. Although "actual notice" and "substantial compliance" language appears in the opinion, the case was decided on full (not just substantial) compliance with rule 4.03. We held that the executive secretary's duties gave her the implied authority to accept service as described by rule 4.03. Id. We have not applied the "actual notice" exception to the service of process on a corporate defendant, and we decline to do so here.
Because neither attempt to serve Summertime Distributing was effective, and because the "actual notice" exception does not apply to service on corporate defendants, the default judgment is void for lack of jurisdiction. Accordingly, we need not address whether Summertime Distributing's failure to file an answer was a result of excusable neglect under rule 60.02(a).