Gessner v. City of Minot

• Decision Date: 18 August 1998
• Docket Number: No. 980069,980069
• Citation: 583 N.W.2d 90,1998 ND 157
• Parties: Norma Charlene GESSNER, Plaintiff and Appellant, v. CITY OF MINOT, a Municipal Corporation, and Ward County Water Management District, Defendants and Appellees. Civil
• Court: North Dakota Supreme Court

Page 90

583 N.W.2d 90

1998 ND 157

Norma Charlene GESSNER, Plaintiff and Appellant, v. CITY OF MINOT, a Municipal Corporation, and Ward County Water Management District, Defendants and Appellees.

Civil No. 980069.

Supreme Court of North Dakota.

Aug. 18, 1998.

Sara B. Gullickson, of Gunhus, Grinnell, Klinger, Swenson & Guy, Fargo, for plaintiff and appellant.

Jason R. Vendsel, of McGee, Hankla, Backes & Dobrovolny, Minot, for defendant and appellee City of Minot, Gary H. Lee (argued), and Kay M. Randall (appearance), of Olson Burns Lee, Minot, for defendant and appellee Ward County Water Management District.

VANDE WALLE, Chief Justice.

¶1 Norma Charlene Gessner appealed from judgments dismissing her wrongful death action against the City of Minot and the Ward County Water Management District. We hold Gessner failed to perfect service of process upon Minot and, consequently, the court did not acquire personal jurisdiction over Minot. We further hold there are genuine issues of material fact relevant to the District's potential liability. We affirm the judgment dismissing Minot but reverse the summary judgment dismissing the District and remand for a trial on the merits.

¶2 Gessner's four-year-old son, Cory Hammond, drowned on July 26, 1992, when he fell from a concrete flood control device on the Souris River, located adjacent to Oak Park in Minot. The structure was part of a flood control project constructed by the United States Army Corps of Engineers. The District acted as the sponsoring agency for the project, and agreed to provide "all lands, easements, and rights-of-way necessary for the construction and subsequent maintenance of the channel improvement" and to "[m]aintain and operate all of the works for the channel improvement after the completion" of the project. The project was completed and transferred to the District for control of operation and maintenance, effective December 15, 1981. By resolution of the City Council, Minot agreed to provide for the "operation and maintenance of all of the project within the City of Minot" as of February 15, 1982.

¶3 After Cory's death in 1992, Gessner filed a wrongful death action against Minot and the District. Minot moved for dismissal, alleging insufficient service of process upon the city. The district court granted the motion, entered an N.D.R.Civ.P. 54(b), certification, and Gessner appealed to this Court. In Gessner v. City of Minot, 529 N.W.2d 868, 870 (N.D.1995), we held the district court's 54(b) certification was improvidently granted, and we dismissed the appeal. The District then filed a motion for summary judgment, claiming the action against it should be dismissed because the District had no control over the flood control structure at the time of Cory's death. The district court granted summary judgment, dismissing Gessner's claim against the District. Gessner appealed.

Service Upon Minot

¶4 Gessner attempted to commence her action against Minot by serving a summons and complaint on Robert A. Schempp, the Minot City Manager. The district court found this was insufficient service of process, because Gessner should have served a member of Minot's governing body. Gessner claims service upon the city manager was adequate. We disagree.

¶5 Valid service of process is necessary to assert personal jurisdiction over a defendant. Smith v. City of Grand Forks, 478 N.W.2d 370, 371 (N.D.1991). The procedure for serving process upon a city is directed by N.D.R.Civ.P. 4(d)(2)(E):

(d) Personal Service.

....

(2) How Service Made Within the State. Personal service of process within the state must be made as follows:

....

(E) upon a city, township, school district, park district, county, or any other municipal or public corporation, by delivering a copy of the summons to any member of its governing board....

Specific requirements for service of process must be strictly complied with, and a judgment based on service where the procedural requirements of the rule have not been followed is void. Farrington v. Swenson, 210 N.W.2d 82, 83 (N.D.1973).

¶6 Minot has adopted the city council form of government. Under N.D.C.C. § 40-08-01 Minot's governing body is composed of the mayor and the city aldermen. Minot has also adopted a city manager plan under N.D.C.C. ch. 40-10 and has hired a city manager to be its chief administrative officer under N.D.C.C. § 40-10-03. However, the city manager is not a member of the city's governing body and is not, therefore, a proper person for making service of process on the city. See, e.g., Nissen v. City of Fargo, 338 N.W.2d 655, 657 (N.D.1983) (holding service of process on city auditor was not service on city commissioners). We conclude the district court properly determined there was insufficient service of process on Minot.

Unity in Interest of the Codefendants

¶7 Gessner asserts even though she failed to properly serve Minot and the statute of limitations has run for obtaining proper timely service, she should be allowed to now serve Minot and have the service relate back to her service upon the District as a codefendant "united in interest" with Minot under N.D.C.C. § 28-01-38:

An action is commenced as to each defendant when the summons is served on him, or on a codefendant who is a joint contractor or otherwise united in interest with him.....

Under this statute an action is deemed to have been commenced against a defendant when the summons is served upon a party who is united in interest with that defendant. We have not previously construed the phrase "united in interest" in the context of this statute. However, New York has a similar provision, and we look for guidance from its court's interpretations to construe our statute. ¹

¶8 The New York Court of Appeals has held that parties are "united in interest" if the subject matter of the action is such that both parties "stand or fall together and ... judgment against one will similarly affect the other." Mondello v. New York Blood Center, 80 N.Y.2d 219, 604 N.E.2d 81, 85, 590 N.Y.S.2d 19 (1992), citing Prudential Ins. Co. v. Stone, 270 N.Y. 154, 159, 200 N.E. 679 (1936). Under those circumstances, the party not timely served is charged with notice of the institution of the action and, because of the relationship with the timely served party, is deemed not prejudiced in maintaining a defense on the merits of the otherwise barred claim. Mondello, 590 N.Y.S.2d 19, 604 N.E.2d at 85. Thus, for instance, partners are united in interest because they are personally and vicariously liable for the torts of their co-partners committed within the scope of the partnership business. Connell v. Hayden, 83 A.D.2d 30, 443 N.Y.S.2d 383, 395 (1981). Where, however, the action is one to recover for tort "persons who are charged with concurrent negligence producing plaintiff's injuries will not be held to be 'united in interest' absent some relationship between them giving rise to vicarious liability for the acts of the other." Connell, 443 N.Y.S.2d at 396-97.

¶9 Parties are not united in interest under the New York statute if each could assert different defenses to the plaintiff's claims, such that untimely service upon one of them may prevent that party from conducting an appropriate investigation of a defense which the timely served defendant has no interest or desire to pursue. See, e.g., Mfrs. & Traders Trust Co. v. Lindauer, 135 Misc.2d 132, 513 N.Y.S.2d 629, 637-38 (1987). Under New York's interpretations of the united-in-interest concept the most important consideration is whether the party timely served is obligated by necessity to protect the nonserved defendant by investigating and preparing all defenses available to both parties. Under those circumstances, timely service of process on the original party acts to satisfy the underlying purpose of the statute of limitations to ensure a defendant has a fair opportunity to prepare a defense.

¶10 The New York decisions provide helpful guidance for construing and applying the term "united in interest" under N.D.C.C. § 28-01-38. We conclude two parties are united in interest when they are in such relation to each other with regard to the subject matter of the plaintiff's action that they will necessarily stand or fall together, a judgment against one will necessarily result in liability upon the other, and neither can reasonably raise a defense which is unavailable to the other. Under that definition, we conclude Minot and the District are not codefendants united in interest.

¶11 In reading the allegations in the pleadings, it is readily apparent Minot and the District have available different defenses and may not "stand or fall together" on the plaintiff's claims against them. For example, Minot could argue the District had a non-delegable duty to design and construct a flood control structure not unreasonably dangerous to children, but failed to do so. The factfinder could conclude Minot's agreement to maintain and operate the structure after it was completed was not an assumption of the duty to design and construct a reasonably safe structure and the operation and maintenance of it was not the proximate cause of the victim's death. Contrarily, the District could argue Minot became an independent contractor when it resolved to undertake all operation and maintenance of the structure and the victim's death was proximately caused by Minot's failure, after several years of operation and observation of the danger it posed, to use reasonable care in maintaining the structure to make it reasonably safe for children. The District could further argue it owed no duty to the victim to maintain the structure in a reasonably safe condition.

¶12 The question of agency is a fact question for the trier of fact. E.g., Red River Commodities, Inc. v. Eidsness, 459 N.W.2d 805, 810 (N.D.1990). The factfinder could also determine Minot was acting as the agent of the District in providing maintenance and care of the flood control structure...