Opinion
No. C1-01-1236.
Filed January 22, 2002.
Appeal from the District Court, Polk County, File No. C501388.
Tammy L. Orendorf, (pro se appellant)
Charles Fitzgerald, Crookston City Attorney, Gregory Widseth, Assistant City Attorney, (for respondent)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant challenges the dismissal of her district court action for insufficient service of process of her demand for removal of her conciliation court action. Appellant contends service was sufficient because (1) substitute service was proper; (2) the city clerk had actual notice; and (3) the city attorney's secretary was served. She also seeks review on the merits. Respondent moves to strike a portion of the appendix to the brief. We affirm the dismissal and deny the motion to strike.
FACTS
Appellant Tammy Orendorf sued respondent City of Crookston (city) in conciliation court, and respondent prevailed. Appellant sought to remove the matter to district court for de novo review. A third party served the demand for removal on a secretary for the City of Crookston Park and Recreation Department at the Crookston City Hall and on a secretary/receptionist at the office of the assistant city attorney.
The city moved to dismiss the action for insufficient service. The district court dismissed the matter and this appeal followed.
DECISION
The determination of whether service of process was proper is a question of law that we review de novo. Amdahl v. Stonewall Ins. Co., 484 N.W.2d 811, 814 (Minn.App. 1992), review denied (Minn. July 16, 1992).
Any person aggrieved by a conciliation court judgment may remove the matter to district court for a trial de novo. Minn.R.Gen.Pract. 521(a). To effect removal, the aggrieved party must, in relevant part, serve the demand for removal on the opposing party or the opposing party's lawyer. Minn.R.Gen.Pract. 521(b). The service may be "by personal service in accordance with the provisions for personal service of a summons in district court." Minn.R.Gen.Pract. 521(b)(1).
Personal service on a municipality is accomplished by delivering a copy "[t]o the chief executive officer or to the clerk of a defendant city, village, or borough." Minn.R.Civ.P. 4.03(e)(2). Appellant acknowledges that the city clerk was not personally served, but contends service was nonetheless sufficient. First, she asserts she accomplished substitute service. Rule 4.03(a) authorizes substitute service on an individual "by leaving a copy at the individual's usual place of abode with some person of suitable age and discretion then residing therein." Appellant contends that similarly, a municipality may be served by leaving the document with a person of suitable age and discretion at city hall, analogizing city hall to an abode. The supreme court, however, has ruled that the substitute service authorized under rule 4.03(a) does not apply to service on a municipality under rule 4.03(e). Obermeyer v. Sch. Bd., Indep. Sch. Dist. No. 282, 312 Minn. 580, 581-82, 251 N.W.2d 707, 708 (1977) (holding that service on spouse of school board chairman at their home was not effective service on school board chairman under rule 4.03(e)).
Appellant next argues that she sufficiently complied with rule 4.03(e) because the city clerk had actual notice. It is not disputed that the clerk's secretary placed the envelope containing the summons and complaint on the desk of the city clerk, who was out of town, and that the clerk opened the envelope some five days later.
"Service of process in a manner not authorized by the rule is ineffective service." Tullis v. Federated Mut. Ins. Co., 570 N.W.2d 309, 311 (Minn. 1997) (citation omitted). The supreme court has recognized the actual notice exception only in cases involving substitute service at a defendant's residence. Thiele v. Stich, 425 N.W.2d 580, 584 (Minn. 1988). "Actual notice will not subject defendants to personal jurisdiction absent substantial compliance with Rule 4." Id.
Rule 4.03(e)(2) authorizes service on a city only through service on the chief executive officer or clerk of the city. Minn.R.Civ.P. 4.03(e)(2). In the absence of substantial compliance with rule 4.03(e)(2), which is not present here, actual notice is not sufficient.
Finally, appellant argues that service on the secretary of the city's attorney should be sufficient service. For the same reasons discussed above, substitute service is insufficient. Thiele, 425 N.W.2d at 584 (holding that where plaintiff sued attorney, service of secretary of attorney at his office was not effective personal service under rule 403(a)). In summary, the district court correctly dismissed the matter for insufficient process.
Respondent moves to strike pages 22-50 of appellant's appendix, arguing that these matters were not decided by the district court or raised in appellant's notice of appeal or statement of the case. The challenged pages primarily include memoranda on the motion to dismiss and affidavits relating to the issues decided by the court. The motion to strike is denied.
Affirmed; motion denied.