Olsrud v. Bismarck Mandan Orchestral Ass'n

• Decision Date: 12 June 2007
• Docket Number: No. 20060239.,20060239.
• Citation: 733 N.W.2d 256,2007 ND 91
• Parties: Linda OLSRUD, Plaintiff and Appellant v. BISMARCK-MANDAN ORCHESTRAL ASSOCIATION, aka Bismarck-Mandan Symphony Orchestra, Defendant and Appellee.
• Court: North Dakota Supreme Court

733 N.W.2d 256

2007 ND 91

Linda OLSRUD, Plaintiff and Appellant v. BISMARCK-MANDAN ORCHESTRAL ASSOCIATION, aka Bismarck-Mandan Symphony Orchestra, Defendant and Appellee.

No. 20060239.

Supreme Court of North Dakota.

June 12, 2007.

Deborah J. Carpenter, Carpenter Law Offices, Bismarck, N.D., for plaintiff and appellant.

Gary R. Wolberg, Fleck, Mather & Strutz, Bismarck, N.D., for defendant and appellee.

MARING, Justice.

[¶ 1] Linda Olsrud appeals from a judgment dismissing with prejudice her action against the Bismarck-Mandan Orchestral Association ("Association"), a nonprofit corporation, after the district court decided Olsrud's service of the summons and complaint on the Association was improper. We conclude Olsrud's service of process on the Association was improper, and we affirm the dismissal of the action but modify the judgment to dismiss Olsrud's action without prejudice.

I

[¶ 2] After the Association terminated Olsrud's employment, she obtained a February 21, 2006, opinion from the North Dakota Attorney General, which concluded the Association was supported in part by public funds and was a public entity subject to North Dakota's open records and meetings law; the Association did not violate the open records law by refusing to give Olsrud copies of personnel records, but violated the open records law by failing to provide her with other requested reports, minutes, meeting notices, and information, with appropriate redactions; the Association violated the open records law by failing to give public notice of meetings by it and its executive and personnel committees; and the Association violated the open records law by failing to give notice of its meetings to Olsrud, an individual who had asked to receive notice. N.D. Op. Atty Gen.2006-O-04.

[¶ 3] The attorney general's opinion listed the steps needed to remedy the violations:

The Association must provide to the requestor copies of all of the records requested. The Association must redact information that is confidential and may redact personnel information that is exempt, under N.D.C.C. § 44-04-18.1 or other applicable law.

In addition to providing copies of notices and minutes for meetings occurring from August 24, 2004, through August 24, 2005, the Association must provide to Ms. Olsrud copies of notices and minutes for meetings occurring from August 24, 2005, to the present, and must, in future, provide notice of its meetings to the public and Ms. Olsrud prior to its Board and committee meetings, in accordance with N.D.C.C. § 44-04-20.

Failure to take the corrective measures described in this opinion within seven days of the date this opinion is issued will result in mandatory costs, disbursements, and reasonable attorney fees if the person requesting the opinion prevails in a civil action under N.D.C.C. § 44-04-21.2. It may also result in personal liability for the person or persons responsible for the noncompliance.

[¶ 4] Olsrud claimed the Association failed to comply with the attorney general's opinion, and her attorney thereafter prepared a March 20, 2006, summons and complaint against the Association for relief under the open records law. Olsrud's attorney's husband filed affidavits of personal service, stating that on March 20, 2006, the summons and complaint were served on both Gary Wolberg, the Association's attorney, and on Al Wolf, the Association's president of the board of directors, "by personally delivering a copy of said Summons and Complaint to the receptionist" at Wolberg's office address and at Wolf's office address.

[¶ 5] By letter dated March 20, 2006, Wolberg informed Olsrud's attorney that he did not have authority to admit service of the summons and complaint on behalf of the Association and declined to sign and return an admission of service to Olsrud's attorney. Wolberg also advised Olsrud's attorney "to make service in the proper manner." According to Wolberg, Olsrud's attorney left him a voice mail on March 22, 2006, which stated the summons and complaint delivered to Wolberg's office were a "courtesy copy," and actual service of the pleadings had been made on Wolf, the Association's president of the board of directors. According to Wolf, he was in Arizona on March 20, 2006, he did not return to his office until March 31, 2006, no one in his office signed an admission of service of the summons and complaint on March 20, 2006, nor was anyone in his office authorized to do so, and Wolberg was not authorized to accept service of process on behalf of the Association.

[¶ 6] The Association thereafter moved to dismiss Olsrud's action, claiming insufficient service of process because Wolberg was not authorized to accept service on behalf of the Association and personal service had not been made on the Association's president, the Association's registered agent, or any officer, director, or other person authorized by rule to receive service. The district court granted the Association's motion and dismissed Olsrud's action with prejudice.

II

[¶ 7] Olsrud argues service of the summons and complaint was timely and proper. She asserts the general framework for service of civil actions is governed by N.D.R.Civ.P. 5(b), which she claims authorizes service upon the Association by "delivering" the summons and complaint to Wolberg's office. She asserts "delivering" includes leaving the document at the attorney's office with a clerk or other individual in charge under N.D.R.Civ.P. 5(b). Olsrud acknowledges N.D.R.Civ.P. 4(d)(2)(D) authorizes service on a corporation by delivering a copy of the summons "to an agent authorized by appointment or by law to receive service of process on its behalf, or to one who acted as an agent for the defendant with respect to the matter upon which the claim of the plaintiff is based and who was an agent of the defendant at the time of service." She claims Wolberg was an agent authorized "by appointment or by law" to receive service for the Association under N.D.R.Civ.P. 4(d)(2)(D), because Wolberg was the Association's attorney in the proceeding culminating in the attorney general's opinion. Olsrud argues even if Wolberg was not the proper person to be served, Wolf, the Association's president of the board of directors, was delivered a copy of the summons and complaint at his office by leaving a copy with a "clerk or other individual in charge" under N.D.R.Civ.P. 5(b).

[¶ 8] The Association responds N.D.R.Civ.P. 5 is not applicable to service of a summons and complaint because it applies to service of papers made after an action is properly served under N.D.R.Civ.P. 4. The Association argues Wolberg was not an agent for the Association with respect to the matter on which Olsrud's claim was based and N.D.R.Civ.P. 4(d)(2)(D) contemplates service upon corporate agents. The Association also argues Olsrud's attempted service did not comply with the procedure for commencing an action against a corporation under N.D.R.Civ.P. 4(d)(2)(D), because there was no personal service on Wolf, the Association's president of the board of directors, no one signed an admission of service on his behalf, and no one in Wolf's office had that authority. The Association asserts leaving a copy of the summons and complaint at Wolf's office was insufficient service of process.

[¶ 9] Under N.D.R.Civ.P. 3, an action is commenced by the service of a summons. Valid service of process under N.D.R.Civ.P. 4 is necessary for a court to acquire personal jurisdiction over a defendant. Sanderson v. Walsh County, 2006 ND 83, ¶ 13, 712 N.W.2d 842; Beaudoin v. South Texas Blood & Tissue Ctr., 2004 ND 49, ¶ 11, 676 N.W.2d 103; Gessner v. City of Minot, 1998 ND 157, ¶ 5, 583 N.W.2d 90. Absent valid service of process, even actual knowledge of the existence of a lawsuit is insufficient to effectuate personal jurisdiction over a defendant. Riemers v. State, 2006 ND 162, ¶ 7, 718 N.W.2d 566; Muhammed v. Welch, 2004 ND 46, ¶ 11, 675 N.W.2d 402; Helmers v. Sortino, 545 N.W.2d 796, 799 (N.D.1996). Without a valid service of process, any judgment is void because the court lacks personal jurisdiction. Riemers, at ¶ 7; Smith v. City of Grand Forks, 478 N.W.2d 370, 371 (N.D. 1991). A party must strictly comply with the specific requirements for service of process. Sanderson, 2006 ND 83, ¶ 13, 712 N.W.2d 842; Gessner, 1998 ND 157, ¶ 5, 583 N.W.2d 90; Messmer v. Olstad, 529 N.W.2d 873, 876 (N.D.1995); Farrington v. Swenson, 210 N.W.2d 82, 85 (N.D. 1973).

[¶ 10] Rule 4, N.D.R.Civ.P., deals with jurisdiction over a person, process, and personal service, and as relevant to personal service on a corporation, provides:

(d) Personal Service.

. . . .

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

. . . .

(D) upon a domestic or foreign corporation or upon a partnership or other unincorporated association, by (i) delivering a copy of the summons to an officer, director, superintendent or managing or general agent, or partner, or associate, or to an agent authorized by appointment or by law to receive service of process in its behalf, or to one who acted as an agent for the defendant with respect to the matter upon which the claim of the plaintiff is based and who was an agent of the defendant at the time of service; (ii) if the sheriff's return indicates no person upon whom service may be made can be found in the county, then service may be made by leaving a copy of the summons at any office of the domestic or foreign corporation, partnership or unincorporated association within this state with the person in charge of the office; or (iii) any form of mail or third-party commercial delivery addressed to any of the foregoing persons and requiring a signed receipt and resulting in delivery to that person.

[¶ 11] Rule 5, N.D.R.Civ.P., deals with service and filing of pleadings and other papers and provides, in relevant part:

(a) Service-When Required. Except as otherwise provided in...