Thiele v. Stich
| Citation | 416 N.W.2d 827 |
| Decision Date | 22 December 1987 |
| Docket Number | No. C1-87-645,C1-87-645 |
| Parties | DeVee THIELE, f.k.a. DeVee Moore, Appellant, v. Robert T. STICH, Respondent. |
| Court | Court of Appeals of Minnesota |
Syllabus by the Court
1. Service of process upon an individual is not effected by leaving a copy of the summons with a receptionist at the individual's place of business.
2. A cause of action for legal malpractice does not accrue until damage occurs.
Tracy R. Eichhorn-Hicks, Meshbesher, Singer & Spence, Minneapolis, for appellant.
Caryn F. Brenner, Lommen, Nelson, Cole & Stageberg, Minneapolis, for respondent.
Considered and decided by CRIPPEN, P.J., and FOLEY and LANSING, JJ., with oral argument waived.
Appellant DeVee Thiele, f.k.a. DeVee Moore brought suit against respondent Robert T. Stich, an attorney, for negligent representation in the dissolution of her marriage. The trial court found the six-year statute of limitations for legal malpractice had expired prior to effective service of process and granted summary judgment in favor of respondent. We reverse and remand.
Appellant and her former husband, Gary Moore, hired respondent to represent them both in dissolving their marriage. Respondent advised them to change title to certain marital real estate from joint tenancy to tenancy in common. The dissolution decree, entered July 29, 1980, awarded the property equally to the parties as tenants in common.
In May 1986, Moore brought a partition action against appellant to divide the property in order to satisfy first and second mortgages on the property. The second mortgage secured a personal loan taken out by Moore. Before the divorce, Moore told appellant that the second mortgage had already been satisfied. The divorce decree did not identify or refer to any mortgage.
Appellant brought this action against respondent, alleging he negligently represented her in the divorce action by failing to check on the existence of the mortgage. On July 17, 1986, a process server went to respondent's law office to serve him with a summons and complaint. The complaint named respondent as defendant in his individual capacity only. Respondent was not in his office, and the papers were left with a receptionist, who placed them on respondent's desk. Respondent answered on August 6, 1986, alleging insufficient service of process and lack of personal jurisdiction.
On August 14, 1986, a second summons and complaint, identical in content to the first, was delivered to respondent personally. On September 2, 1986, a second answer was served upon appellant's counsel by mail.
Did the trial court err in granting summary judgment for respondent because appellant had failed to properly effect service of process before the statute of limitations expired?
Summary judgment must be granted if there is no genuine issue as to any material fact and either party is entitled to judgment as a matter of law. Minn.R.Civ.P. 56.03. On review of a grant of summary judgment, this court must determine whether there are any genuine issues of fact to be litigated and whether the trial court erred in its application of the law. Betlach v. Wayzata Condominium, 281 N.W.2d 328, 330 (Minn.1979). The evidence must be viewed in the light most favorable to the one against whom summary judgment was granted. Abdallah, Inc. v. Martin, 242 Minn. 416, 424, 65 N.W.2d 641, 646 (1954).
Service of process is required to be made in the following manner:
(a) Upon an Individual. Upon an individual by delivering a copy to him personally or by leaving a copy at his usual place of abode with some person of suitable age and discretion then residing therein.
Minn.R.Civ.P. 4.03. Appellant did not comply with Rule 4.03 in serving the first summons, as it was neither handed directly to respondent nor left at his residence with someone of suitable age and discretion. We agree with the trial court that the attempted service of the first summons was ineffective. Respondent was not effectively served until August 14, 1986.
The statute of limitations for legal malpractice is six years. Minn.Stat. Sec. 541.05, subd. 1(5) (1986). The trial court held the limitations period began to run July 29, 1980, when the dissolution decree was entered. Because the action was not effectively commenced until August 14, 1986, the trial court found the limitations period had expired.
The limitations period does not begin to run until the cause of action accrues. Minn.Stat. Sec. 541.01 (1986). A cause of action does not...
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Herrmann v. McMenomy & Severson
...Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.1 This court also addressed the issue in Thiele v. Stich, 416 N.W.2d 827 (Minn.App.1987), rev'd on other grounds, 425 N.W.2d 580 (Minn.1988). Because the supreme court accepted review and did not affirm this court's judg......
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Thiele v. Stich
...reversed, holding the first service was ineffective, but the limitation period did not begin to run until 1986. Thiele v. Stich, 416 N.W.2d 827, 829-30 (Minn.App.1987). We agree the initial service was inadequate, but find the court of appeals erroneously considered the alternative accrual ......
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Sabes & Richman, Inc. v. Muenzer, C3-88-1175
...the statute of limitations and that the trial court properly granted summary judgment. S & R relies on our analysis in Thiele v. Stich, 416 N.W.2d 827 (Minn.Ct.App.1987), rev'd 425 N.W.2d 580 (Minn.1988), contending that the supreme court reversed on the ground that the issue of when the ma......
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