Michael Latour, Appellant, vs. Minneapolis Community and Technical College, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2000).

STATE OF MINNESOTA

IN COURT OF APPEALS

Michael Latour,

Appellant,

vs.

Minneapolis Community and Technical College,

Respondent.

Filed February 27, 2001

Hennepin County District Court

File No. 002337

Patrick M. Connor, Clair E. Schaff, Connor, Satre & Schaff, L.L.P., 925 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for appellant)

Mike Hatch, Attorney General, Kristyn Aceto Garofalo, Assistant Attorney General, 445 Minnesota Street, Suite 1100, St. Paul, MN 55101-2128 (for respondent)

            Considered and decided by Crippen, Presiding Judge, Harten, Judge, and Hanson, Judge.

HARTEN, Judge

Appellant's complaint was dismissed on statute of limitations grounds because service of the summons and complaint did not comply with Minn. R. Civ. P. 4.03(d) until a second service was made after the limitation period had run.  Appellant challenges the dismissal, arguing that service was within the limitation period because Minn. R. Civ. P. 4.03(d) did not apply and, alternatively, that respondent waived the statute of limitations defense and that equitable tolling applies.  Because we conclude that Minn. R. Civ. P. 4.03(d) does apply and that respondent did not waive a statute of limitations defense and because we see no abuse of discretion in the district court's finding equitable tolling inapplicable, we affirm.

 FACTS

            Appellant Michael Latour was terminated by respondent Minneapolis Community and Technical College (MCTC) on December 1, 1997.  He grieved his termination under the collective bargaining agreement; the grievance process remained pending at the time we heard oral arguments.  During the process, MCTC's attorney corresponded with appellant's attorney using stationery headed "State of Minnesota" and "Office of the Attorney General," and appellant's attorney spoke to the attorney for MCTC in the attorney general's office.

 On November 18, 1999, appellant served a summons and complaint alleging defamation and claims under the Whistleblower Act, the Family Medical Leave Act, and the collective bargaining agreement.  Appellant subsequently withdrew the collective bargaining agreement (contract) claim.  The complaint was served on the Office of the President at MCTC, where it was received by MCTC's Legal and Administrative Affairs Director.  On December 8, 1999, MCTC moved for dismissal on the grounds of ineffective service of process followed by expiration of time under the statute of limitations.  On December 10, 1999, appellant served the attorney general.

            Following a hearing, the district court granted MCTC's motion to dismiss the complaint on statute of limitations grounds.  The district court rejected appellant's arguments that MCTC had waived the statute of limitations defense and that equitable tolling applied.  Appellant challenges the dismissal and reiterates these arguments.

D E C I S I O N

1.         Application of Minn. R. Civ. P. 4.03(d)

            Whether Minn. R. Civ. P. 4.03(d) applies to MCTC depends on whether MCTC is, for purposes of that rule, the state of Minnesotaa mixed question of law and fact.  Court rulings on mixed questions of law and fact are not binding on an appellate court but are subject to independent review.  Meyering v. Wessels, 383 N.W.2d 670, 672 (Minn. 1986).

            Minn. R. Civ. P. 4.03(d) provides that service of a summons on the state shall be made by delivering a copy "to the attorney general, a deputy attorney general or an assistant attorney general."  It is undisputed that appellant did not serve the attorney general until after the statute of limitations had expired.  Appellant argues, however, that MCTC is not the state. 

This argument runs counter to Minnesota statutes.  Minn. Stat. § 136 F. 10 (2000) provides: "The following are designated as the Minnesota state colleges and universities: * * * the technical colleges located at * * * Minneapolis * * *."  The Board of Trustees of the Minnesota state colleges and universities [MnSCU] "consists of 15 members appointed by the governor with the advice and consent of the senate."  Minn. Stat. § 136 F. 02, subd. 1 (2000).  The board's status as a state agency may be inferred from Minn. Stat. § 136 F. 79 (2000): "The board is the sole state agency to receive and disburse federal funds * * *."  It is clear that MCTC is part of MnSCU and that MnSCU is an arm of the state.

Accordingly, appellant's service of a complaint on MCTC was subject to Minn. R. Civ. P. 4.03(d).  "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).   Serving the state by leaving a copy of a summons with a director of legal and administrative affairs in the office of the president of a technical college is not authorized by the rule and was therefore ineffective, and appellant's action is barred by the statute of limitations.

2.         Waiver

             It is undisputed that MCTC did not object to service until after the statute of limitations had expired.  Appellant argues that by doing so, MCTC waived the right to assert the statute of limitations as a defense.  "The question of waiver, the facts not being in dispute, may be decided as a matter of law."  Montgomery Ward & Co. v. County of Hennepin, 450 N.W.2d 299, 304 (Minn. 1990).  A reviewing court need not defer to the district court's application of the law when the material facts are not in dispute.  Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn. 1989). 

Waiver is the voluntary relinquishment of a known right, and both intent and knowledge are essential elements.  Blaeser & Johnson, P.A., v. Kjellberg, 483 N.W.2d 98, 102 (Minn. App. 1992) (finding waiver of statute of limitations defense when a party waited until eight months after entry of default judgment to assert that service had been improper), review denied (Minn. June 10, 1992).  Appellant's reliance on Blaeser is misplaced; Blaeser is readily distinguishable.  In that case, the party against whom waiver was asserted had personally acknowledged receipt of the summons and complaint, had known of the need to file an answer, had sought and received several extensions of time in which to file an answer, and had been informed that, absent an answer, a default judgment would be sought.  Id. None of these circumstances applies to MCTC.  There is no evidence that MCTC had any intent to relinquish its right to assert the statute of limitations defense, and there is no basis for appellant's allegation that MCTC waived that right.

3.         Equitable Tolling  

            A district court's decision on the application of equitable tolling will not be reversed absent an abuse of discretion.  See Regents of Univ. of Minn. v. Raygor, 620 N.W.2d 680, 687 (Minn. 2001) (no abuse of discretion in district court finding equitable tolling inapplicable when party pursuing Minnesota Human Rights Act claims in federal court knew Eleventh Amendment could defeat federal court jurisdiction).  There is no support for appellant's view that the pending grievance on his collective bargaining agreement (contract) claim tolled the statute of limitations on claims brought under the Whistleblower Act and the Family Medical Leave Act or on a defamation claim.   There was no abuse of discretion in the district court's finding.

            Affirmed.