Thiele v. Stich

Decision Date01 July 1988
Docket NumberNo. C1-87-645,C1-87-645
Citation425 N.W.2d 580
PartiesDeVee THIELE, f.k.a. DeVee Moore, Respondent, v. Robert T. STICH, Petitioner, Appellant.
CourtMinnesota Supreme Court

Syllabus by the Court

1. The court of appeals erroneously considered plaintiff's new argument that her legal malpractice action accrued six years after the allegedly negligent act; the issue was neither preserved for appeal nor decidable on the record.

2. Service of process was ineffective to timely commence the action when the summons and complaint were left with a receptionist at defendant's place of work.

Kay Nord Hunt, Caryn F. Brenner, Minneapolis, for appellant.

Gerald M. Singer, John P. Sheehy, Minneapolis, for respondent.

Heard, considered and decided by the court en banc.

POPOVICH, Justice.

DeVee Thiele sued attorney Robert Stich in 1986 for legal malpractice in connection with her 1980 dissolution proceeding. Stich answered alleging insufficient service of process and Thiele re-served the summons and complaint. The trial court granted summary judgment for Stich on the ground that the six-year statute of limitations had run by the time of the second, proper service. The court of appeals 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 date for plaintiff's action, an issue neither raised in the trial court nor decidable on that record. We therefore reverse.


In 1979, DeVee Thiele hired attorney Robert Stich to handle her divorce from Gary Moore. It is not clear whether Stich represented both parties, or whether Moore had his own counsel. Stich learned the parties were not legally married, as Gary Moore was married to another woman at the time he attempted marriage with Thiele in 1969. On July 29, 1980, the court filed a decree dissolving the purported marriage and dividing property the couple had acquired. The division included real estate purchased in joint tenancy, which was awarded to the parties equally as tenants in common.

Gary Moore subsequently sought partition of the real property and enforcement of a second mortgage against it, though the record does not indicate when his action began or what form it took. Thiele in turn filed this malpractice action against Stich, claiming that due to his negligence the 1980 decree failed to account for the parties' then-existing debts, protect Thiele's continued enjoyment of the property, or provide for payment of the second mortgage, real estate taxes, and improvements.

Stich was initially served with Thiele's summons and complaint on July 17, 1986, but the process-server simply left the document with the receptionist in Stich's law office when he was not there. He alleged insufficient service of process in his answer, and was then personally handed the identical summons and complaint at his office on August 14, 1986.

Stich filed a motion for summary judgment, alleging Thiele's action was time-barred under Minn.Stat. Sec. 541.05, subd. 1(5) (1986). He contended Thiele's cause of action accrued on the date of the dissolution decree, July 29, 1980, and the six-year limitation period therefore expired on July 29, 1986. Stich said the July 17, 1986, service was ineffective to commence the action because the summons was neither delivered personally nor left at his usual place of abode, as required under Minn.R.Civ.P 4.03. Thiele responded that her cause "arguably" accrued in 1980, but claimed the first service on Stich properly commenced the action because he had actual notice of the suit within the limitation period. The court held service at defendant's place of business could not be so liberally construed, and granted summary judgment for Stich.

Thiele appealed, and in her statement of the case framed the issue as whether the July 17, 1986, service in Stich's office was proper, and whether Stich had sufficient notice of the suit given the fact that he referred the complaint to his insurers and retained counsel. However, Thiele additionally argued in her court of appeals brief that the August 14, 1987, service on Stich was well within the six-year limitation period because her cause of action did not accrue until she became aware of Stich's neglect in 1986. The court of appeals found the July 17, 1986, service ineffective, but agreed Thiele's cause of action did not accrue until her ex-husband filed his partition action in May, 1986. The court therefore reversed the judgment for Stich on the statute of limitations issue, remanding the case for trial. Thiele, 416 N.W.2d at 830.


Stich contends the court of appeals improperly considered a statute of limitations question never litigated below. We agree. A reviewing court must generally consider "only those issues that the record shows were presented and considered by the trial court in deciding the matter before it." Thayer v. American Financial Advisers, Inc., 322 N.W.2d 599, 604 (Minn.1982); see also Thompson v. Barnes, 294 Minn. 528, 200 N.W.2d 921, 927 (1972). More specifically, this court "will not consider the applicability of the statute of limitations on appeal, even though the question was raised below, if it was not passed on by the trial court." Rehberger v. Project Plumbing Co. Inc., 295 Minn. 577, 578, 205 N.W.2d 126, 127 (1973); accord Togstad v. Vesely, Otto, Miller & Keefe, 291 N.W.2d 686, 694 (Minn.1980). This principle especially applies when facts on which the limitations issue rests are in dispute. Rehberger, 205 N.W.2d at 127.

Nor may a party obtain review by raising the same general issue litigated below but under a different theory. Pomush v. McGroarty, 285 N.W.2d 91, 93 (Minn.1979) (cannot raise new negligence theory on appeal); Security Bank of Pine Island v. Holst, 298 Minn. 563, 564, 215 N.W.2d 61, 62 (1974) (elementary that party cannot shift his position on appeal). We recently applied this rule in a slightly different context, holding plaintiffs who won their case at trial but later lost on appeal "were under an obligation to preserve their alternative theories for standing to sue." Mattson v. Underwriters at Lloyds of London, 414 N.W.2d 717, 721 (Minn.1987). Failure to do so leaves that party vulnerable to the claim it is shifting theories on appeal or reviving an abandoned theory. Id. at 721-22.

The parties here obviously litigated the statute of limitations question in trial court, but the sole point of controversy was whether the July 17, 1986, service on Stich was effective to commence the action. Thiele never contended her action accrued on any date other than July 29, 1980, and she failed to even put that issue before the court of appeals in her statement of the case. Her position in trial court was that "[a]rguably, the facts suggest that Plaintiff's cause of action came into being on July 29, 1980." That statement may not be an express concession, but it does not dispute Stich's express argument in his trial memorandum that plaintiff's cause came into being on the date of her dissolution degree. Having lost on the theory under which she argued the case, Thiele plainly raised an alternative theory for the first time on appeal. The court of appeals nevertheless addressed and decided this new issue, without acknowledging or defending its deviation from the rule proscribing such appellate review.

Even if the court of appeals acted within its discretion to consider Thiele's new statute of limitations theory, it was still bound to the trial court 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. Plowman v. Copeland, Buhl & Co., Ltd., 261 N.W.2d 581, 583 (Minn.1977); Minn.R.Civ.App.P. 110. Not surprisingly, the key facts supporting Thiele's accrual claim were never presented to the trial court, being largely irrelevant to the question litigated there.

The court of appeals found Thiele's cause of action commenced in 1986 because "[she] believed the second mortgage on the property had been paid off before the dissolution proceeding began"; she had "no expectation that the decree would contain any reference to the mortgage"; and she suffered "no damage until [Gary] Moore filed his action in May 1986." Thiele, 416 N.W.2d at 829-30. None of these "facts" appear in the complaint, answer, dissolution decree, or Stich's affidavit--which make up the record before the trial court. Indeed, the record does not even indicate whether Moore actually filed a partition action or, if so, when. Moreover, the amended statement of proceedings filed in the court of appeals, which was approved by both parties and the trial court, failed to mention these allegations. As Stich points out, the court must have drawn this information from Thiele's appellate brief, which contains these new factual allegations. It clearly erred in so reaching beyond the trial court record.

Thiele apparently takes Stich's argument one step further, claiming the record was inadequate to establish any date on which the cause of action accrued. She contends Stich, as the moving party on a claim for which he bears the burden of proof at trial, was obligated to show the absence of any factual issue material to the statute of limitations. In her view, summary judgment was inappropriate because the materials accompanying Stich's motion were insufficient to establish when the limitation period began to run.

Thiele overstates Stich's burden. The party moving for summary judgment under Rule 56, Minn.R.Civ.P., must demonstrate no genuine issue of material fact exists. 1 2A D. Herr and R. Haydock, Minnesota Practice, Sec. 56.18 at 69 (2d ed. 1985); 10A C. Wright, A. Miller, M. Kane, Federal Practice and Procedure, Sec. 2727 at 121 (2d ed. 1983). One asserting the statute of...

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