Harry T. Neimeyer, Stringer & Rohleder, Ltd., 1200 Norwest Center, 55 East Fifth Street, St. Paul, MN 55101 (for appellants)

Paul C. Peterson, William L. Davidson, Lind, Jensen & Sullivan, P.A., 150 South Fifth Street, Suite 1700, Minneapolis, MN 55402 (for respondent Jeffrey Anderson and Reinhardt & Anderson, P.A.)
Charles E. Lundberg, Bassford, Lockhart, Truesdell & Briggs, P.A., 3550 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for respondent Frank L. King)

Considered and decided by Short, Presiding Judge, Harten, Judge, and Parker, Judge.[*]

SHORT, Judge

Frank King provided marital counseling to Jane Doe and Craig Tabery at Northern Pines Mental Health Center, Inc. (Northern Pines) from February to August 1978. Because King allegedly sexually abused Doe during this time period, Doe filed a tort action against King and Northern Pines on January 3, 1992, and Tabery filed a derivative loss of consortium claim against King on September 17, 1996. The trial court dismissed Doe's action against King and Northern Pines as time-barred, but later vacated its dismissal against King because it did not consider King's military service and absence from Minnesota in reaching its decision. The Court of Appeals reversed the trial court's decision as untimely under Minn. R. Civ. P. 60.02, and Doe brought a legal malpractice action against Jeffrey Anderson and Reinhardt & Anderson (collectively "Anderson") for their failure to assert a tolling argument in support of Doe's claim against King and Northern Pines. Roe v. King, No. C3-97-1507 (Minn.

App. Apr. 21, 1998). In response, the trial court granted summary judgment against Doe because her underlying claim against King and Northern Pines had expired prior to Anderson's representation. A separate trial court also summarily dismissed Tabery's claim against King as time-barred. On appeal, Doe and Tabery argue the trial courts erred as a matter of law. We affirm.

On appeal from summary judgment, we determine whether genuine issues of material fact exist or whether the trial court erred in its application of the law. Minn. R. Civ. P. 56.03; DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997). While we view the evidence in the light most favorable to the nonmoving party, the nonmovant must produce specific facts to create an issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552 (1986); Ruud v. Great Plains Supply, Inc., 526 N.W.2d 369, 371 (Minn. 1995). Statutory construction is a legal question, which we review de novo. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985); see Sarafolean v. Kauffman, 547 N.W.2d 417, 419 (Minn. App. 1996) (reviewing construction of statute of limitations de novo), review denied (Minn. July 10, 1996).

First, military service tolls a statute of limitations during an individual's active duty, not while an individual is incarcerated. See 50 U.S.C. app. § 511 (1994) (defining "period of military service" as period beginning the day in which person enters active service); see also Mantz v. Mantz, 69 N.E.2d 637, 639 (Ohio Ct. C.P. 1946) (concluding soldier, convicted of felony, is no longer regarded as "soldier on active duty or service"). The record shows: (1) King entered active service for the United States Army in July 1980 and was on active duty until November 1981; (2) the Army incarcerated King from November 1981 until June 1987; (3) upon his release, King was on active duty from June 1987 until December 1987; (4) the Army incarcerated King again from December 1987 until January 1991; (5) following his second release from incarceration, King returned to Minnesota; and (6), although King remained in the Army while residing in Minnesota, no evidence suggests he was on active duty prior to his discharge in February 1992.

Even though Doe did not discover her injuries from the alleged sexual abuse until November 1984, King's military service only extended the time period for Doe to assert her claim against King for seven months or until June 29, 1991. See Minn. Stat. § 541.073, subd. 2 (1998) (stating action for damages based on personal injury caused by sexual abuse must be commenced within six years from time plaintiff realized injury was caused by sexual abuse). Because Anderson did not begin to represent Doe in her action against King until October 1991, the trial court properly determined Doe's legal malpractice claim fails as a matter of law. See Blue Water Corp. v. O'Toole, 336 N.W.2d 279, 281-82 (Minn. 1983) (noting key element of legal malpractice claim is that plaintiff would have been successful absent attorney's negligence); Godbout v. Norton, 262 N.W.2d 374, 376 (Minn. 1977) (recognizing failure to prove any element of legal malpractice claim precludes recovery).

Further, King's military service only tolled Tabery's claim against King for 16 months or until December 15, 1985. See Minn. Stat. § 541.05, subd. 1(1) (1998) (stating tort and negligence actions governed by six-year statute of limitations); see Hermeling v. Minnesota Fire & Cas. Co., 548 N.W.2d 270, 275 (Minn. 1996) (noting statute of limitations under Minn. Stat. § 541.05 starts to run at time of injury). Because Tabery did not file his complaint until September 17, 1996, the trial court also properly concluded Tabery's claim against King is time-barred.

Second, a statute of limitations is tolled during a person's absence from the state only when that person is not subject to process during his/her absence or, after a diligent search, cannot be located for the purpose of personal service. See Minn. Stat. § 541.13 (1998) (permitting statute of limitations to toll during absence from state where nonresident is not subject to process or cannot be located for purpose of personal service); Johnson v. Husebye, 469 N.W.2d 742, 745 (Minn. App. 1991) (discussing two parts of Minn. Stat. § 541.13), review denied (Minn. Aug. 2, 1991). In this case, King remained subject to process under Minnesota's long-arm statute after he left the state in 1978. See Minn. Stat. § 543.19, subd. 1(c) (1998) (stating nonresidents are subject to process under Minnesota law where nonresident commits any act in state causing injury or property damage); see also Duresky v. Hanson, 329 N.W.2d 44, 47 (Minn. 1983) (concurring with trial court's conclusion that nonresident remained subject to process under Minnesota's long-arm statute).

Moreover, both Doe and Tabery failed to provide reliable evidence of a diligent search for King for the purpose of personal service. See Minn. Stat. § 541.13 (discussing diligent searches). Rather, Tabery did not conduct any type of search for King, and Doe only provided an affidavit from her past attorney, Bjorn Ulstad, stating he attempted to find King in 1984 by retrieving Doe's medical records from Northern Pines and searching local phone books, Department of Health records, and Department of Motor Vehicle records. Despite knowledge that King moved to California in 1978, Ulstad did not contact King's relatives or even attempt to locate King outside Minnesota. Although Ulstad stated his search for King was to help Doe commence litigation against King, Doe reported she merely wanted this information to personally confront King and did not commence litigation against King until 1992. Thus, not only is the admissibility of Ulstad's affidavit questionable, but it fails to establish a "diligent search" for King under Minn. Stat. § 541.13. See Minn. R. Evid. 801(c) (defining hearsay); Duresky, 329 N.W.2d at 49 (concluding analysis of whether plaintiff made "diligent search" for purpose of personal service depends on timing of search); see also City of Duluth, St. Louis County v. P.F.L., Inc., 431 N.W.2d 135, 137 (Minn. App. 1988) (holding attorney's affidavit, submitted as only piece of evidence in opposition to summary judgment, contained unverified allegations that failed to defeat motion).

Under these circumstances, Minn. Stat. § 541.13 does not apply to either Doe or Tabery's claim against King. The trial court did not err in summarily dismissing both parties' claims as a matter of law. See Blue Water, 336 N.W.2d at 281-82 (noting elements of legal malpractice claim); Godbout, 262 N.W.2d at 376 (recognizing failure to establish any element of legal malpractice claim precludes recovery).

Moreover, even if collateral estoppel does not apply to Doe's argument, King's military service only tolled the statute of limitations for Doe's claim against Northern Pines for 16 months or until December 15, 1985. See Oelschlager v. Magnuson, 528 N.W.2d 895, 902 (Minn. App. 1995) (noting statute of limitations begins to run against plaintiff's employer, under doctrine of respondeat superior, from time injury occurred rather than time plaintiff discovered injury), review denied (Minn. Apr. 27, 1995). Also, for the reasons stated above, Minn. Stat. § 541.13 does not apply to Doe's claim against King or Northern Pines. Because Doe's claim against Northern Pines expired prior to Anderson's representation, the trial court did not err in concluding this claim failed as a matter of law. See Blue Water, 336 N.W.2d at 281-82 (recognizing plaintiff must demonstrate that he/she would have prevailed absent attorney negligence); Godbout, 262 N.W.2d at 376 (noting failure to prove key element in legal malpractice claim bars recovery).

Brandt v. State, 428 N.W.2d 412, 417-18 (Minn. App. 1988) (noting husband's loss of consortium claim dies if judgment rendered against wife).

Affirmed.

[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.