O'Sell v. Peterson
Decision Date | 29 June 1999 |
Docket Number | No. C7-98-2315,C7-98-2315 |
Citation | 595 N.W.2d 870 |
Parties | Esther O'SELL, Respondent, v. James C. PETERSON, Appellant. |
Court | Minnesota Court of Appeals |
Syllabus by the Court
Leaving a summons and complaint with a 14-year-old child who is staying at a home for a six-day, non-custodial visitation constitutes substitute service of process on an individual.
Susan Richard Nelson, Wendy J. Zeller, Robins, Kaplan, Miller & Ciresi L.L.P., Minneapolis, for respondent.
Gary T. LaFleur, Babcock, Locher, Neilson & Mannella, Anoka, for appellant.
Considered and decided by TOUSSAINT, Chief Judge, KALITOWSKI, Judge, and SHORT, Judge.
In this pre-trial appeal, James C. Peterson argues the trial court erred by denying his motion to dismiss for defective service of process. On appeal from an order denying his motion, Peterson argues his stepson was not a person "then residing therein" under Rule 4.03(a) of the Minnesota Rules of Civil Procedure. In the alternative, Peterson argues he is entitled to a jury trial on the question of his stepson's residence.
Esther O'Sell sued James C. Peterson for assault, battery, false imprisonment, intentional infliction of emotional distress, and negligence. On June 24, 1998, the Sherburne County Deputy Sheriff, acting as process server, left the summons and complaint, in Peterson's absence, with his 14-year-old stepson at Peterson's home. Although Peterson's stepson usually resides in Iowa with his custodial parent, he was staying, during a regular and planned visitation, with Peterson from June 21 to June 26, 1998. On June 24, Peterson received O'Sell's summons and complaint.
Does a 14-year-old, staying at a house during a regular and planned non-custodial visitation, "then reside therein" for purposes of service of process?
Denial of a motion to dismiss for ineffective service of process is appealable as a matter of right. Hunt v. Nevada State Bank, 285 Minn. 77, 88-89, 172 N.W.2d 292, 299-300 (1969). The construction of a court rule and the determination of whether service is proper are questions of law, subject to de novo review. See Stoebe v. Merastar Ins. Co., 554 N.W.2d 733, 735 (Minn.1996) ( ); McBride v. Bitner, 310 N.W.2d 558 561-63 (Minn.1981) ( ).
A civil action is commenced against an individual when a summons is served on that 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." Minn. R. Civ. P. 3.01(a) and 4.03(a); see 1 David F. Herr & Roger S. Haydock, Minnesota Practice §§ 3.3, 4.9 (1998) ( ); cf. Fed.R.Civ.P. 4(e)(2) ( ). 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). But substantial compliance combined with actual notice will subject an individual to personal jurisdiction. Thiele v. Stich, 425 N.W.2d 580, 584 (Minn.1988); see Amdahl v. Stonewall Ins. Co., 484 N.W.2d 811, 814 (Minn.App.1992) ( ), review denied (Minn. July 16, 1992). We are asked to determine whether leaving a summons and complaint with a 14-year-old child staying at a home for a six-day, non-custodial visitation is sufficient for substitute service of process on an individual.
Peterson argues his stepson is a resident of Iowa and his brief visit to Minnesota does not qualify as "then residing therein" under Rule 4.03(a). See Firemen's Ins. Co. v. Viktora, 318 N.W.2d 704, 706-07 (Minn.1982) ( ); Grier v. Estate of Grier, 252 Minn. 143, 147, 89 N.W.2d 398, 402 (1958) ( ). But for service of process, "residence" means "something more than mere physical presence and something less than domicile." Black's Law Dictionary 1308-09 (6th ed.1990) (defining residence, distinguishing residence from domicile, and defining "reside" as to "[l]ive, dwell, abide, sojourn, stay, remain, lodge"); see also Chapman v. Davis, 233 Minn. 62, 69, 45 N.W.2d 822, 826 (1951) ( ); 4A Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure § 1096, at 81(2d ed.1987) ( ).
Service of process is intended to give notice to a defendant and, thus, service of process must be reasonably calculated to reach the defendant. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950) ( ); Minnesota Mining & Mfg. Co. v. Kirkevold, 87 F.R.D. 317, 324 (D.Minn.1980) ( ). In deciding whether an individual is "then residing therein" for purposes of service of process, there must be a nexus between the individual and the defendant that establishes some reasonable assurance that notice would reach the defendant. For example, a relationship of confidence, including but not limited to a familial relationship, may establish a nexus and support the conclusion that notice would reach the defendant. See Nowell v. Nowell, 384 F.2d 951, 953 (5th Cir.1967) ( ); Thompson v. Butler, 214 Iowa 1123, 243 N.W. 164, 167 (1932) ( ); Plushner v. Mills, 429 A.2d 444, 446 (R.I.1981) ( ). In addition, the duration of an individual's presence, the frequency of the presence, or the intent to return may also establish nexus between the individual and defendant. See Sangmeister v. McElnea, 278 So.2d 675, 676-77 (Fla.Dist.Ct.App.1973) ( ); Holtberg v. Bommersbach, 236 Minn. 335, 338, 52 N.W.2d 766, 768 (1952) ( ); 4A Wright and Miller, Federal Practice & Procedure § 1096, at 81 ( ). Finally, evidence that the service actually reached the intended person strongly supports a conclusion that service is valid because due process has been afforded. See Minnesota Mining and Mfg., 87 F.R.D. at 323 ( ); Larson v. Hendrickson, 394 N.W.2d 524, 526 (Minn.App.1986) ( ).
Here, the deputy sheriff of Sherburne County attempted service at Peterson's home on June 24, 1998. When told that Peterson was not home, the deputy sheriff delivered the summons and complaint to Peterson's 14-year-old stepson who was at Peterson's home on a six-day, non-custodial visitation. For the past four to five years, Peterson's stepson stayed at the Peterson residence every...
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