Matthew Fitzpatrick, Appellant, vs. Calvary Baptist Church, f/k/a Calvary Baptist Church of Minneapolis, Respondent. A05-564, Court of Appeals Unpublished, April 4, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-564

Matthew Fitzpatrick,

Appellant,

vs.

Calvary Baptist Church,

f/k/a Calvary Baptist Church of Minneapolis,

Respondent.

Filed April 4, 2006

Affirmed

Kalitowski, Judge

Hennepin County District Court

File No. PI 04-15681

Albert T. Goins, Joanna L. Woolman, Goins & Wood, P.C., 378 Grain Exchange Building, 301 Fourth Avenue South, Minneapolis, MN 55415 (for appellant)

Thomas E. McEllistrem, Garth G. Gavenda, Collins, Buckley, Sauntry & Haugh, P.L.L.P., W-1100 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent)

Considered and decided by Willis, Presiding Judge; Kalitowski, Judge; and Stoneburner, Judge.

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

KALITOWSKI, Judge

Appellant Matthew Fitzpatrick challenges the district court order dismissing his personal injury action because the summons and complaint had not been properly served and the statute of limitations had expired. Appellant argues that (1) service was proper because the person served was authorized to accept service for respondent; and (2) respondent was estopped from asserting improper service because the person served represented that he was authorized to accept service. We affirm.

D E C I S I O N

In reviewing cases dismissed for failure to state a claim on which relief can be granted, the only question before the reviewing court is whether the complaint sets forth a legally sufficient claim for relief. Barton v. Moore, 558 N.W.2d 746, 749 (Minn. 1997). Dismissal is proper when “it clearly and unequivocally appears from the face of the complaint that the statute of limitations has run and . . . the complaint contains no facts to toll that running.” Pederson v. Am. Lutheran Church, 404 N.W.2d 887, 889 (Minn. App. 1987), review denied (Minn. June 30, 1987).

Here, the district court dismissed appellant’s complaint because it determined that appellant did not properly serve respondent within the statute of limitations for appellant’s cause of action. The determination of whether service of process was proper is a question of law that this court reviews de novo. Turek v. A.S.P. of Moorhead, Inc., 618 N.W.2d 609, 611 (Minn. App. 2000), review denied (Minn. Jan. 26, 2001). When service is insufficient, the court must dismiss the action. Uthe v. Baker, 629 N.W.2d 121, 123 (Minn. App. 2001).

To effectuate service, the plaintiff must commence his action using a proper service method. One proper method is to deliver the summons to the sheriff in the county where the defendant resides for service. Minn. R. Civ. P. 3.01(c). But delivery is ineffectual unless the sheriff also serves the defendant within 60 days of delivery. Id. And when the defendant is a corporation, the plaintiff or sheriff must serve “an officer or managing agent, or . . . any other agent authorized expressly or impliedly or designated by statute to receive service of summons.” Minn. R. Civ. P. 4.03(c).

Service must be timely. The statute of limitations for a personal injury negligence action is generally six years. Minn. Stat. § 541.05, subd. 1(5) (2004); D.M.S. v. Barber, 645 N.W.2d 383, 386 (Minn. 2002). If a person has a cause of action before he is 18 years old, the period is suspended until that person turns 19 years old. Minn. Stat. § 541.15(a)(1) (2004).

Here, appellant’s alleged injury occurred when he was 11 years old; therefore, he had until he turned 19 years old to serve respondent. See Minn. Stat. § 541.15(a)(1). Appellant delivered the summons and complaint to the Hennepin County Sheriff’s Department one day before he turned 19 years old and the sheriff’s department served the summons and complaint on Mario Vargas (Vargas), respondent’s tenant, within 60 days. Thus, a service attempt occurred within the limitations period, and the only issue is whether Vargas was authorized to accept service. See Minn. R. Civ. P. 3.01(a). Appellant argues that he properly served respondent because Vargas was either a managing agent or an agent with implied authority to accept service. We disagree.

1. Managing agent

First, appellant argues that he properly served respondent because Vargas was respondent’s managing agent. Minnesota courts consider two factors when determining whether an 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 v. Federated Mut. Ins. Co., 570 N.W.2d 309, 311 (Minn. 1997).

The Minnesota Supreme Court has concluded that an individual possesses independent judgment and discretion in situations where the individual managed part of the corporation, collected rents, signed and issued checks on the corporation’s bank account, negotiated services for the corporation, or signed communications on corporate letterhead. Id. In contrast, Minnesota courts have determined that certain administrative assistants, staff counselors, and office receptionists lack the power to exercise independent judgment and discretion. Id.

Here, appellant offers no evidence that Vargas exercised discretion or independent judgment on behalf of respondent. Vargas’s only connection to respondent is that he was the executive director of a nonprofit corporation (the nonprofit) that leases space from respondent. Vargas had authority to unlock the church building and place notes in church mailboxes, but these duties related only to Vargas’s status as respondent’s tenant. Respondent never employed Vargas or appointed him as a church representative. Thus, Vargas never had authority to manage or negotiate services for respondent. Appellant suggests that Vargas is a managing agent because respondent’s pastor is a board member of the nonprofit. But the pastor’s participation in the nonprofit does not establish that Vargas managed or controlled respondent.

The facts also do not indicate that Vargas held a position that made it reasonably certain that respondent would be apprised of service. See id. at 312. Vargas did not have any actual authority to accept service of process for respondent because Vargas merely worked for respondent’s tenant. See id. (“In order to limit service to persons who can reasonably be expected to apprise the corporation of service, there must be actual authority to accept service of process on behalf of the corporation at the time of service . . . .” (emphasis added)). Furthermore, even if Vargas told the sheriff’s deputy that he was authorized to accept service, an alleged misrepresentation does not make Vargas a managing agent. See id. (stating that a person is not a managing agent merely because he represents himself as authorized). Thus, we conclude that the district court properly determined that Vargas was not respondent’s managing agent.

2. Implied authority

Second, appellant contends that he properly served respondent because Vargas had implied authority to accept service. Under Minn. R. Civ. P. 4.03(c), a plaintiff may also serve a corporation by delivering the summons to “any other agent authorized . . . impliedly . . . to receive service.” Service to an agent with implied authority encompasses a broader range of persons than service to a managing agent. Id. at 313. Courts generally find implied authority where the “character of the agency is such as to render it fair, reasonable, and just to imply an authority on the part of the agent to receive service.” Id. (quoting Derrick v. Drolson Co., 244 Minn. 144, 153, 69 N.W.2d 124, 130 (1955) (other quotation omitted)).

“Implied authority is actual authority, circumstantially proved, and is to be construed under common law principles of agency.” Id. Thus, implied authority only includes powers that are “directly connected with and essential to carrying out the duties expressly delegated to the agent.” Id. A court may infer implied authority from a course of dealing between the principal and the agent but not from the agent’s dealings with third parties. Id.

Here, appellant argues that Vargas had implied authority to accept service because Vargas had previously placed documents in the pastor’s mailbox and had authority to unlock the church building. Although these tasks confirm that Vargas was a tenant, they do not establish that Vargas had authority to accept legal documents. Additionally, neither Vargas nor respondent understood that Vargas had authority to accept legal documents.

Appellant further argues that Vargas had implied authority because the nonprofit is respondent’s subsidiary and therefore an implied agent. See Doula v. United Techs. Corp., 759 F. Supp. 1377, 1383 (D. Minn. 1991) (determining that service was proper to subsidiary under Minnesota law because it was an implied agent of parent corporation). But the facts do not establish that respondent was the nonprofit’s parent corporation. Instead, the record only shows that the nonprofit rented space from respondent and that respondent’s pastor served on the nonprofit’s board. Thus, respondent’s dealings with Vargas do not establish that Vargas had implied authority to accept service.

Because Vargas was neither a managing agent nor an individual with implied authority to accept service on respondent’s behalf, Vargas was not authorized to accept service. And because appellant failed to serve respondent before the statute of limitations ran, we conclude that the district court properly dismissed the complaint for failure to state a claim.

II.

Appellant next argues that even if we determine that appellant failed to properly serve respondent, the district court should have held respondent was estopped from asserting improper service because Vargas identified himself as authorized to accept service. But appellant relies on Uthe, 629 N.W.2d at 124, where this court held that courts may not use their equitable powers to estop a defendant from asserting insufficiency of process when the district court lacks personal jurisdiction. Whether personal jurisdiction exists is a question of law, which this court reviews de novo. Wick v. Wick, 670 N.W.2d 599, 603 (Minn. App. 2003).

Here, the district court lacked personal jurisdiction because appellant did not properly serve respondent, and therefore, use of the estoppel doctrine is inappropriate. See Uthe, 629 N.W.2d at 123. Additionally, “[a]n employee’s representations to a process server are inadequate to find authority to accept service on behalf of the corporation.” Tullis, 570 N.W.2d at 313-14 & n.4. The person attempting service has the burden to examine whether the person accepting service has the authority to complete the proposed act. Id. at 313. Thus, we conclude that the district court did not err in determining that a nonemployee’s representations did not estop respondent from asserting an improper service defense.

Affirmed.