Richard Ochs, Respondent, vs. Elizabeth W. Kimball, Esq., et al., Appellants.
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).STATE OF MINNESOTA
IN COURT OF APPEALSC5-02-1766
Elizabeth W. Kimball, Esq., et al.,
Filed July 8, 2003
Affirmed; motion granted in part and denied in part
Hennepin County District Court
File No. MP02006601
Richard Ochs, c/o Albrecht & Associates, LTD., 7066 Brooklyn Boulevard, Brooklyn Center, MN 55429 (for respondent)
William L. Davidson, Paul C. Peterson, Lind, Jensen, Sullivan & Peterson, P.A., 150 South Fifth Street, Suite 1700, Minneapolis, MN 55402 (for appellants)
Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Wright, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from an order denying their motion to dismiss for ineffective service of process, appellants Elizabeth W. Kimball and Kimball Law Office, P.A., argue that respondent Richard Ochs did not effect personal service by leaving the summons and complaint inside the screen door of Kimball's home after she refused to accept the documents. Because service cannot be avoided by physically refusing to accept a summons where a reasonable person would know that personal service is being attempted, we affirm.FACTS
Ochs attempted to serve a summons and complaint upon Kimball, an attorney, at her home. The following facts are taken from affidavits submitted in support of and in opposition to appellants' motion to dismiss.
Process server Douglas Hanson of Dash Delivery Services rang the doorbell of Kimball's residence, and Kimball opened the inner front door and saw the paperwork in Hanson's hands. Kimball refused to open the outer door, told Hanson that she was not accepting any papers from anyone, and slammed the door in Hanson's face. Hanson then knocked on a side door, and Kimball refused to come to that door. Hanson then left the summons and complaint inside the screen door. Hanson was wearing a Dash Delivery Services shirt.
Kimball claims that after she heard someone ring her doorbell and knock on her front door, she looked out a window and saw an unfamiliar man. Because she did not recognize him, she ignored his attempts to gain her attention. Kimball then heard him knock on her back door and heard the doorknob rattling, which frightened her. She heard the man yell that he had a delivery that had to be signed for. She told him that she was "not signing anything" and was not expecting any deliveries. The man did not identify himself or tell her that he was attempting to serve her with a summons and complaint. She then saw the man walk to his van and return to her back door where he left some papers. She did not notice any logo on Hanson's clothing or van.
Appellants filed a motion to dismiss for ineffective service of process. The district court denied the motion.D E C I S I O N
Denial of a motion to dismiss for ineffective service of process is appealable as a matter of right. The determination of whether a summons and complaint is properly served is a jurisdictional question of law.
Amdahl v. Stonewall Ins. Co., 484 N.W.2d 811, 814 (Minn. App. 1992) (citations omitted), review denied (Minn. July 16, 1992). A reviewing court is not bound by and need not defer to a district court's decision on a purely legal issue. Frost-Benco Elec. Ass'n v. Minn. Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984). When reviewing an order denying a motion to dismiss for lack of personal jurisdiction or insufficiency of process, the plaintiff's allegations are accepted as true. Miller v. A.N. Webber, Inc., 484 N.W.2d 420, 421 (Minn. App. 1992), review denied (Minn. June 10, 1992).
Minn. R. Civ. P. 4.03(a) provides:
Service of summons within the state shall be as follows:
Upon an individual by delivering a copy [of the summons] 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.
Service upon a corporation is made "by delivering a copy [of the summons] to an officer or managing agent" of the corporation. Minn. R. Civ. P. 4.03(c). Service in a manner not authorized by a rule or statute is ineffective. Tullis v. Federated Mut. Ins. Co., 570 N.W.2d 309, 311 (Minn. 1997).
[I]t is generally held that if the process server and the defendant are within speaking distance of each other, and such action is taken as to convince a reasonable person that personal service is being attempted, service cannot be avoided by physically refusing to accept the summons.
Nielsen v. Braland, 264 Minn. 481, 484, 119 N.W.2d 737, 739 (1963) (citations omitted).
In an affidavit filed by plaintiff-respondent in opposing the motion to dismiss, Hanson stated:
That after I rang the doorbell, she opened the front door and saw the paperwork. She must have known that I was trying to serve papers on her because she refused to open the inside[] door. She said she was not accepting any papers from anyone and slammed the door in my face.
The district court concluded that Kimball and Hanson were in close proximity to each other and that "Kimball must have known that personal service was being attempted since she told the process server that she would not accept any papers." We agree. Hanson's affidavit indicates that not only were he and Kimball within speaking distance of one another, they actually spoke to one another. And Kimball's statement that she was not accepting any papers from anyone implies that she understood that Hanson was trying to give her papers. Also, Kimball stated in her affidavit that she told Hanson that she "was not signing anything," which is a further indication that she understood that Hanson was trying to deliver something to her.
In Nielsen, the supreme court determined that the defendant was adequately served where the process server and defendant were in close proximity, the process server touched the defendant with the summons, and then laid it in a place where it was easily accessible to the defendant. Nielsen, 264 Minn. at 484, 119 N.W.2d at 739. The defendant's "refusal to pick [the summons] up or to accept it did not prevent the service from being completed." Id. While here the server was not able to physically touch Kimball with the summons, Kimball was aware that Hanson was trying to give her papers. And it was not necessary for Kimball to be aware that what Hanson was trying to give her was a summons and complaint; nothing in Nielsen indicates that the process server told the defendant that the paper he was holding was a summons. We therefore conclude that under Nielsen, Kimball's refusal to accept the summons did not prevent service of process from being completed.Motion to Strike
Appellants filed a motion to strike portions of respondent's brief that are either outside the record on appeal, or are not supported by citations to the record. Minn. R. Civ. App. P. 110.01 (record on appeal), 128.03 (references in briefs to record).
The record on appeal consists only of "[t]he papers filed in the trial court, the exhibits, and the transcript." Minn. R. Civ.App. P. 110.01. Each statement of a material fact must be accompanied by a reference to the record. Minn. R. Civ. App. P. 128.02, subd. 1(c). And wherever a brief references any part of the record, "reference shall be made to the specific pages of the appendix or the supplemental record" or to the specific and identifiable pages of the district court record. Minn. R. Civ. App. P. 128.03. The supreme court has concluded that in some circumstances it is a flagrant violation of the rules to fail to provide citations to the record. See Luebke v. J.I. Case Threshing Mach. Co., 178 Minn. 40, 46, 226 N.W. 415, 417 (1929) (characterizing brief in question as "show[ing] such ignorance or willful disregard of [the citation] rule that it [could not] go unnoticed"). Citations to the record "are particularly important where * * * the record is extensive." Hecker v. Hecker, 543 N.W.2d 678, 681 n.2 (Minn. App. 1996), aff'd, 568 N.W.2d 705 (Minn. 1997).
Appellants claim that nine assertions made by respondent have no factual basis in the record. Upon review, we conclude that six of the assertions are respondent's interpretations of Kimball's acts and are more in the nature of argument than statements of fact. But three of the statements (one stating that respondent's attorney made several attempts to contact appellant and two stating that appellant was not in her office for two weeks and avoided going to her office for more than two weeks) are statements of fact for which we find no support in the record. Therefore, we grant the motion to strike these three statements, but we deny the motion to strike the six remaining statements to which appellant objects.
argue that respondent's entire "Statement of Facts" should be stricken because
it does not contain a single citation to the record. Respondent's statement of the facts flagrantly violates the rules
by not providing any citations to the record.
But striking respondent's statement of the facts would not affect our
review because the relevant evidence considered by the district court is
reproduced in appellants' appendix.
Therefore, although respondent's failure to provide citations to the
record shows such ignorance or willful disregard of the citation rule that it
should not go unnoticed, we decline to strike the statement of facts because
the record is very limited,
and respondent's failure to cite to the record had only a modest impact on our review.
Affirmed; motion granted in part and denied in part.
 Ochs had mailed and faxed copies of the summons and complaint to appellants at the Kimball law office. Because the acknowledgement of receipt was never returned, Ochs attempted personal service upon Kimball at her home. The earlier attempts to serve are not at issue in this appeal. When a party attempts mail service pursuant to Minn. R. Civ. P. 4.05 but no acknowledgment of service form is returned, proof that a defendant actually received the summons and complaint and had notice of the lawsuit does not constitute effective service. Coons v. St. Paul Cos., 486 N.W.2d 771, 776 (Minn. App. 1992), review denied (Minn. Jul. 16, 1992).
 Appellants also filed a motion to dismiss based on a statute of limitations claim. Appellants do not appeal the district court's denial of that motion.
 Because Kimball would have to open the inside door before opening the outside door, we assume that Hanson meant that Kimball refused to open the outside door.
 Appellants correctly assert that the district court erroneously relied, in part, on its finding that respondent substantially complied with Minn. R. Civ. P. 4.03(a) and provided actual notice to appellants. The actual-notice exception applies only in cases involving substitute service at a defendant's residence. Turek v. A.S.P. of Moorhead, Inc., 618 N.W.2d 609, 612 (Minn. App. 2000), review denied (Minn. Jan. 26, 2001). However, "we will not reverse a correct decision simply because it is based on incorrect reasons." Katz v. Katz, 408 N.W.2d 835, 839 (Minn. 1987) (citation omitted).