Bloomfield Townhomes Association, Respondent, vs. Kathleen Sand, Appellant.

Bloomfield Townhomes Association, Respondent, vs. Kathleen Sand, Appellant. A04-1147, Court of Appeals Unpublished, May 10, 2005. This opinion will be unpublished and

may not be cited except as provided by

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

  STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1147

 

Bloomfield Townhomes Association,
Respondent,
 
vs.
 
Kathleen Sand,
Appellant.

 

Filed May 10, 2005 Affirmed

Peterson, Judge

 

Hennepin County District Court

File No. 040127069

 

Einar Hanson, Strobel & Hanson, P.A., 406 West Third Street,  Suite 200, Red Wing, MN  55066 (for respondent)

 

Patrick C. Burns, James C.W. Bock, 5775 Wayzata Boulevard, Suite 700, Minneapolis, MN  55416 (for appellant)

 

            Considered and decided by Kalitowski, Presiding Judge; Klaphake, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from a district court order denying her motion to vacate a default judgment entered against her in conciliation court, appellant argues that (1) she was not served pursuant to the general rules of practice; (2) the conciliation court lacked jurisdiction because she was never properly served; and (3) the evidence establishes that the default judgment should be vacated.  We affirm.

FACTS

            In January 2004, respondent Bloomfield Townhomes Association filed a complaint in conciliation court against appellant Kathleen Sand alleging that after respondent terminated a management contract with appellant's company, Personal Touch Management, Inc., the company made unauthorized payments to appellant from respondent's funds and appellant made additional unauthorized payments to herself from respondent's funds.  The alleged unauthorized payments totaled $4,932.43.  Appellant did not appear at the scheduled conciliation court hearing on March 19, 2004, and a default judgment was entered against her.

            Appellant moved in conciliation court to vacate the default judgment.  Appellant's motion stated that she failed to appear at the hearing because of "[i]mproper service.  Papers were deposited in doorway while [appellant] was out of town."  Appellant argued at the motion hearing that she had not been personally served and was on vacation at the time.  The conciliation court judge asked appellant to consult her calendar and state the dates that she was on vacation.  Appellant did so, and the court pointed out that March 2, 2004, the date of service according to the affidavit of the process server, was not a date that appellant was on vacation.  Appellant's motion was denied.

            Appellant filed a motion for limited removal to the district court pursuant to Minn. R. Gen. Pract. 521, and an evidentiary hearing was held on May 6, 2004.  At the hearing, appellant testified that she did not receive any papers or summons before leaving her residence and going to her office at around 8:00 a.m. on March 2, 2004.  Appellant testified that she remained at her office until approximately 6:40 p.m., and she submitted a one-page computer-backup-log printout that shows that the last data backup for her office computer that day was made at 6:36 p.m. 

Appellant testified that after leaving her office for the day, she and her brother drove in separate automobiles to her residence.  Her brother drove a state-owned, blue automobile with "State of Minnesota" painted on the driver's side door.  He parked the automobile in her driveway, and they drove in her automobile to a restaurant.  Appellant testified that she was at her residence for less than five minutes.  Documentary evidence from the restaurant indicated that appellant was at the restaurant by 6:55 p.m.

Appellant testified that she remained at the restaurant until after 9:00 p.m. and that upon returning to her residence, she did not find any papers relating to this action.  She testified that she first found and became aware of the complaint after returning home from a trip on or about March 15, 2004, when she found the complaint wedged between the door and screen door at the front of her residence.  The district court asked appellant why, after receiving the complaint on March 15, she did not appear for the March 19 conciliation court hearing, and appellant replied that she did not feel that she would be able to prepare for an appearance by that time.

David Smith, a Personal Touch employee, testified that he worked all day with appellant on March 2, 2004, and later met her and her brother at the restaurant.  Smith testified that appellant remained at the restaurant with him past 9:00 p.m.

Respondent submitted two affidavits of the process server, Tamer Bayoumy.  The first affidavit, originally submitted to the conciliation court in March 2004, states that Bayoumy "personally served the attached STATEMENT OF CLAIM AND SUMMONS upon KATHLEEN SAND at PERSONAL TOUCH MANAGEMENT . . . by handing to and leaving with KATHLEEN SAND, a true and correct copy."  Bayoumy's later affidavit, dated May 5, 2004 (the day before the evidentiary hearing at the district court), states:

On March 2, 2004, in the evening after 6:00 p.m., I served a Statement of Claim and Summons on Kathleen Sand at [appellant's address].  This is the home of Ms. Sand.  I had served Kathleen Sand before this date . . . so I was able to identify her.  When I went to her door, I could see through the front glass windows that Ms[.] Sand was standing behind a couch.  I called to her but she would not come to the door.  I yelled to her that I had legal papers to serve on her and left them by the front door on her front doorstep.  Proper personal service was made.  When I walked away to my vehicle, I noticed a dark blue State of Minnesota vehicle car parked in the driveway.  I believe Ms. Sand was attempting to avoid service.

 

The district court indicated that it did not find any basis to vacate the default judgment because Bayoumy's affidavit indicated proper service.  The court denied appellant's motion, and this appeal followed.  Because no transcript of the proceedings below was made, the record on appeal consists of the papers filed in the conciliation and district courts, the exhibits, and the district court's statement of proceedings.  Respondent moved to strike portions of appellant's brief as referring to matters outside the record on appeal.

D E C I S I O N

Ordinarily, appellate courts will not disturb a district court's decision on a motion to vacate a default judgment absent an abuse of discretion.  Imperial Premium Fin., Inc. v. GK Cab Co., 603 N.W.2d 853, 856-57 (Minn. App. 2000).  But, "a motion . . . to vacate a judgment on grounds that it is void for lack of personal jurisdiction does not involve the exercise of discretion."  Comm'r of Natural Res. v. Nicollet County Pub. Water/Wetlands Hearings Unit, 633 N.W.2d 25, 31 (Minn. App. 2001) (citing Hengel v. Hyatt, 312 Minn. 317, 318, 252 N.W.2d 105, 106 (Minn. 1977)), review denied (Minn. Nov. 13, 2001).  "If the judgment is void for lack of jurisdiction, it must be set aside without regard to such factors as the existence of a meritorious defense."  Hengel, 312 Minn. at 318, 252 N.W.2d at 106.  "The existence of personal jurisdiction is a question of law subject to de novo review."  Nicollet County Pub. Water, 633 N.W.2d at 31.

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).  The Minnesota General Rules of Practice provide for service on a defendant of a summons originating in conciliation court.  Minn. R. Gen. Pract. 508(d).  When a claim exceeds $2,500, "the summons must be served by the plaintiff by certified mail, and proof of service must be filed with the administrator.  If the summons is not properly served and proof of service filed within 60 days after issuance of the summons, the action shall be dismissed without prejudice." Minn. R. Gen. Pract. 508(d)(1); accord Minn. Stat. § 491 A. 01, subd. 3(b) (2004) (stating that if "the claim exceeds $2,500, the summons must be served by the plaintiff by certified mail").

Appellant argues that the district court erred in concluding that there was valid service under rule 508 because (1) the rule requires that service be made by certified mail, and no service by mail was attempted; and (2) even if the rule permitted personal service, the rule also requires that proof of service of the summons be filed within 60 days after the summons was issued, and the record does not indicate that proof of service was filed within this period.

            But the record does not indicate that appellant raised either of these issues in the district court.  It appears that both parties adopted arguments that were based on the assumption that the rules of civil procedure govern service of a summons in a conciliation court action.  Therefore, because the district court did not consider appellant's arguments that there was no service by certified mail and that service was defective because no proof of service was filed within 60 days after the summons was issued, we will not consider these arguments for the first time on appeal.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating this court will generally not consider matters not argued and considered in the district court).

Appellant argues that because filing proof of service within 60 days after issuance of the summons is a jurisdictional requirement, her argument that no proof of service was filed within 60 days may be raised for the first time on appeal.  But unlike subject-matter jurisdiction, a defense of lack of personal jurisdiction can be waived, either explicitly or by implication.  Ill. Farmers Ins. Co. v. Glass Serv. Co., 683 N.W.2d 792, 800 (Minn. 2004) (subject-matter jurisdiction); Nicollet County Pub. Water, 633 N.W.2d at 31 (personal jurisdiction).  By failing to argue to the district court that respondent's failure to file proof of service deprived the conciliation court of jurisdiction over appellant, appellant waived that argument.

Appellant argues that the district court erred in concluding that there is not a basis to conclude that she was not properly served.  The ultimate determination whether service of process is proper is a question of law subject to de novo review.  In re Welfare of T.D., 631 N.W.2d 806, 808 (Minn. App. 2001) (citing Patterson v. Wu Family Corp., 608 N.W.2d 863, 866 (Minn. 2000)).  But, when there is conflicting evidence, the underlying question whether service was made is one of fact, and the district court's findings on that question shall not be set aside unless clearly erroneous.  See Minn. R. Civ. P. 52.01 (stating that findings of fact shall not be set aside unless clearly erroneous).  "A party challenging an affidavit of service must overcome it by clear and convincing evidence."  Imperial Premium Fin., 603 N.W.2d at 858.

Appellant argues that she was never personally served and that the testimony and documentary evidence presented at the district court hearing were sufficient to overcome any presumption of the validity of respondent's proof of service.  Appellant contends that Bayoumy's two affidavits are contradictory and, at a minimum, there is a fact issue about whether she was personally served.

 This argument simply challenges the district court's credibility determinations. The district court credited Bayoumy's affidavits over appellant's testimony that she was not at home when Bayoumy claims to have served her.  Appellate courts do not "reconcile conflicting evidence [or] decide issues of witness credibility, which are exclusively the province of the factfinder."  Gada v. Dedefo, 684 N.W.2d 512, 514 (Minn. App. 2004).  The district court's finding that service was made has support in the record, and it is not clearly erroneous. 

Appellant argues that even if the district court did not err in concluding that she was served, the district court abused its discretion by not granting the motion to vacate because she met the requirements under Minn. R. Civ. P. 60.02 to be relieved from the judgment.  However, the record before us does not show that appellant argued in the district court that she met the requirements of rule 60.02.  The record indicates that the only issue presented to the district court was whether appellant was served.  Therefore, we will not consider appellant's argument that the district court should have granted her motion to vacate because she met the requirements of rule 60.02.  See Thiele, 425 N.W.2d at 582 (stating that this court will generally not consider matters not argued and considered in the district court).

Motion to Strike

Respondent moved to strike portions of appellant's brief as being unsupported by the record.  "An appellate court may not base its decision on matters outside the record on appeal, and may not consider matters not produced and received in evidence below."  Thiele, 425 N.W.2d at 582-83.  The portions of appellant's brief that respondent moves to strike include appellant's arguments on issues that appellant did not raise in the conciliation or district courts.  Except for these arguments, which we have already addressed, none of the items that respondent moves to strike have played any role in our analysis of this case.  Therefore, we decline to specifically address the individual items that respondent moves to strike.

Affirmed.