may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Filed August 25, 1998
Stearns County District Court
File No. C2974774
Christopher D. Robinson, Nicole L. Fredricks, Askegaard & Robinson, P.A., 206 North Seventh Street, P.O. Box 826, Brainerd, MN 56401 (for appellant)
Jeffrey P. Oistad, Meshbesher & Spence, Ltd., 510 Zapp Bank Plaza, 1015 West St. Germain Street, St. Cloud, MN 56301 (for respondent)
Considered and decided by Schumacher, Presiding Judge, Short, Judge, and Thoreen, Judge.[*]
In this pre-trial appeal, Kristine Kragt argues the trial court erred in denying her motion to dismiss for insufficient service of process. We reverse.
The construction of a court rule and the determination of whether service is proper are questions 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); Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984) (legal questions reviewed de novo); McBride v. Bitner, 310 N.W.2d 558, 561-63 (Minn. 1981) (examining whether service proper under de novo standard).
The service of a summons on an individual is made by delivering a copy to the individual personally or by leaving a copy at the individual's usual place of abode with some person of suitable age and discretion then residing therein. Minn. R. Civ. P. 4.03 (a) (emphasis added). When leaving a summons and complaint with someone other than the person to be served, the process server must strictly comply with the statutory requirements. MacLean v. Lasley, 181 Minn. 379, 380, 232 N.W. 632, 632 (1930). The requirements of statutory service are "not dispensed with
by the mere fact that [the] defendant may in some way learn of the existence of the papers and an attempted service." Id., 232 N.W. at 632
Kragt argues the trial court erred in refusing to dismiss the complaint because it was not served at her "usual place of abode" to a person "residing therein." See Minn. R. Civ. P. 4.03 (providing personal service requirements); Duncan Elec. Co. v. Trans Data, Inc., 325 N.W.2d 811, 812 (Minn. 1982) (concluding service of process in manner not authorized by rule is ineffective service). We agree. The record demonstrates: (1) the server knew Kragt lived in a rural area with a number of her relatives nearby; (2) despite some confusion about Kragt's address, the server failed to clarify Kragt's residency before he mistakenly left the summons and complaint with her neighbor; and (3) the neighbor, who was also Kragt's relative, agreed to give the "papers" to Kragt, contacted her, and deposited the summons and complaint in her mailbox three days after the server left them. Under these circumstances, the server failed to comply with the requirements of Minn. R. Civ. P. 4.03. See 1 David F. Herr & Roger S. Haydock, Minnesota Practice § 4.9 (1998) (noting "[s]ervice is not permissible by leaving the summons at a neighbor's residence, at another unit in an apartment building, or in any living unit other than the defendant's").
Because the server failed to substantially comply with the requirements of Minn. R. Civ. P. 4.03, the actual notice exception is inapplicable. See Thiele v. Stich, 425 N.W.2d 580, 584 (Minn. 1988) (stating "actual notice will not subject defendants to personal jurisdiction absent substantial compliance with Rule 4"); see, e.g., Murtha v. Olson, 221 Minn. 240, 245, 21 N.W.2d 607, 610 (1946) (concluding where papers left by sheriff at home of one of defendant's friends, defendant's admission that papers had been served upon him not evidence defendant received papers "in due process" if such home not defendant's "place of usual abode").
[*]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.