Opinion
No. C6-01-1250.
Filed January 15, 2002.
Appeal from the District Court, Crow Wing County, File No. C0002609.
Randolph T. Brown, Randolph T. Brown, P.A., (for respondents)
Leonard J. Schweich, Erik J. Askegaard, Eric S. Westphal, Askegaard, Robinson Schweich, P.A., (for appellant)
Considered and decided by Halbrooks, Presiding Judge, Shumaker, Judge, and Stoneburner, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
In this personal injury action, appellant James LeCuyer argues that service of process by publication was insufficient to invoke jurisdiction over him within the statute of limitations and, therefore, the district court erred in denying his rule 12 motion to dismiss the claim. Because the district court did not err in concluding that it had jurisdiction, we affirm.
FACTS
Respondents Barry and Karen Mowers claim that they suffered damages in an automobile accident caused by appellant's negligence on September 21, 1994. The applicable statute of limitations expired on September 21, 2000.
Less than a week before the statute expired, respondents hired Ron Norlinger, a process server, to serve a copy of a summons and complaint on appellant. After looking in the Brainerd area, where appellant lived in 1994; checking department of motor vehicle records; searching the Internet to obtain a telephone number for appellant in Anoka; and learning when he called that number that appellant had moved, Norlinger submitted an affidavit that appellant could not be found.
During this same period, before the statute of limitations expired, respondents' attorney hired private investigator Carl Bunkholt to look for appellant. Bunkholt went to appellant's Anoka County address and learned that appellant had moved seven months earlier and had not left a new address. Bunkholt's associate checked department of motor vehicle records and discovered that the address on file for appellant was the Anoka residence from which he had moved. Bunkholt inquired at the Anoka County Government Center about records that might have an address for appellant but found none. Then Bunkholt checked with the post office for a forwarding address for appellant but there was none.
Using data bases, on September 19, 2000, Bunkholt found appellant's former employer, but he did not have a current address for appellant. Bunkholt located the owner of a house where appellant had once lived, but appellant had moved, and the owner did not know his new address. The owner suggested that appellant might be living with his parents, but he did not know where they resided.
Bunkholt next reviewed department of motor vehicle records for anyone with appellant's surname in an effort to find appellant's parents. The person he found with that surname lived in Fridley and was not related to appellant. Bunkholt also tried to trace appellant through credit reporting agencies but was again unsuccessful. Bunkholt submitted an affidavit stating that, in his opinion as a professional investigator, appellant either had left the state or was avoiding service of process, and then Bunkholt delivered a copy of the summons and complaint to the Hennepin County sheriff on September 20, 2000, for service. On October 3, 2000, the sheriff executed an affidavit stating that appellant could not be found in the county.
Respondents' attorney filed an affidavit for publication with the district court on October 24, 2000, stating that, because of unsuccessful efforts to find appellant, he believed appellant had left the state or was avoiding service and that he had mailed a copy of the summons and complaint to appellant's "last known place of residence."
Respondents' attorney mailed copies of the summons and complaint to both a Rogers address and an Anoka address. The envelopes were returned with an Anoka post office box listed for appellant. On October 30, 2000, the attorney mailed copies of the documents to that box. It belonged to appellant. The attorney also had the summons published in a legal newspaper on October 31, November 7, and November 14, 2000, and in another legal newspaper on November 3, 10, and 17, 2000. Appellant actually received a copy of the summons and complaint on October 31, 2000.
Appellant resided in Maplewood beginning in May 2000, and had maintained an Anoka post office box mailing address since February 2000. After appellant received the summons and complaint, he called respondents' lawyer and asked what he should do. The lawyer advised him to call his insurance company.
Appellant answered the complaint on November 17, 2000, and raised the defense of insufficiency of process. He later brought a rule 12 motion to dismiss the action on that ground. The district court denied the motion and appellant brought this appeal.
DECISION
Appellant contends that service by publication was insufficient to confer jurisdiction over him because respondents' affidavit for publication did not comply with the rules of civil procedure and respondents did not make the requisite diligent search for him.
Service of process by publication can confer jurisdiction over a person when that person cannot be located in Minnesota for personal service:
[W]hen the defendant is a resident individual domiciliary having departed from the state with intent to defraud creditors, or to avoid service, or remains concealed therein with the like intent.
Minn.R.Civ.P. 4.04(a)(1).
To support service by publication, a plaintiff must file an affidavit with the court showing that such service is authorized
and either that the affiant has mailed a copy of the summons to the defendant at the defendant's place of residence or that such residence is not known to the affiant.
Minn.R.Civ.P. 4.04. If the plaintiff can honestly make that affidavit, service by publication will be sufficient even if the defendant is in the state. Van Rhee v. Dysert, 154 Minn. 32, 34-35, 191 N.W. 53, 54-55 (1922). Additionally, before resorting to service by publication, the plaintiff must make a diligent effort to serve the defendant personally. See Arnold v. Boggs, 129 Minn. 270, 271, 152 N.W. 640, 641 (1915) (denying jurisdiction because plaintiff failed to search diligently for defendant).
1. Affidavit in Support of Publication
The affidavit that respondents' attorney submitted in support of publication stated in part that a copy of the Summons and Complaint was mailed to the Defendant at the Defendant's last known place of residence on the 23rd day of October, 2000.
Rule 4.04 provides that the affidavit shall state either that a copy of the summons was mailed to the defendant "at the defendant's place of residence or that such residence is not known to the affiant." Minn.R.Civ.P. 4.04.
The district court found the affidavit to be in sufficient compliance with the rule. Appellant contends that the court's holding was error. The determination of whether service of process was proper is a question of law. Amdahl v. Stonewall Ins. Co., 484 N.W.2d 811, 814 (Minn.App. 1992), review denied (Minn. July 16, 1992). This court need not defer to the district court's application of the law when the material facts are not in dispute. Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn. 1989).
Service of process by publication is not considered to be a reliable means of notifying a defendant that a lawsuit is being brought against him. Abu Dalbouh v. Abu Dalbouh, 547 N.W.2d 700, 703 (Minn.App. 1996). Nevertheless, publication is appropriate, and effective to confer jurisdiction, when it can be shown that it is impossible or impractical to accomplish personal service. Gill v. Gill, 277 Minn. 166, 171, 152 N.W.2d 309, 313 (1967); Abu-Dalbouh, 547 N.W.2d at 703. In such cases, the plaintiff shows that impossibility or impracticality, and hence eligibility for service by publication, through the affidavit in support of publication. Minn.R.Civ.P. 4.04.
The facts required by rule 4.04 to appear in the affidavit for publication are said to be jurisdictional facts, the omission of which will prevent the published service from conferring jurisdiction. Schuett v. Powers, 288 Minn. 542, 543, 180 N.W.2d 253, 254 (Minn. 1970). The statement of facts in the affidavit must show that the case fits one of the rule 4.04 categories of allowable service by publication; that the defendant cannot be served in Minnesota because he does not live here or cannot be located here; and that there has been an effort, in addition to the unreliable method of publication, to notify the defendant of the lawsuit by mailing a copy of the summons to his residence address, if the plaintiff knows what it is. If the plaintiff does not know the defendant's address, a mailing of the summons is not required and the plaintiff need only say that he does not know the defendant's residence. Minn.R.Civ.P. 4.04.
Appellant argues that respondents' attorney's affidavit for publication was insufficient because it recited that the summons was mailed to the "defendant's last known address" rather than stating that it was mailed to "defendant at defendant's residence," which assumes the residence is known, or that "such residence is not known." We reject appellant's argument as requiring a hyper technical reading of the rule, and we hold that the language respondents' attorney used effectively accomplished the same thing that using the exact language of the rule would have accomplished. Under the exact language of the rule, the attorney had two choices: (1) to state that he mailed a copy of the summons to the place he knew to be appellant's residence address, or (2) to state that he did not know appellant's residence address, and, therefore, could not mail a copy of the summons anywhere. Based on the facts respondents' attorney had at the time he submitted his affidavit, compliance with the literal language of the rule would have resulted in no mailing and a statement that he did not know what appellant's residence address was.
That literal statement would have been correct and in full compliance with the rule and would have been a demonstration of why the respondents are eligible to obtain jurisdiction by publication. The attorney's actual statement accomplished at least the same thing by indicating that only appellant's last address, a place where he could not be found, was known and that the obvious impossibility of personal service when only the last address is known demonstrates eligibility for publication.
Thus, the affidavit language did not omit jurisdictional facts but rather stated them differently from the literal language of rule 4.04. Furthermore, the affidavit language did not in any way affect notice to appellant nor did it frustrate or thwart the purpose of service by publication. Wiik v. Russell, 173 Minn. 580, 218 N.W. 110 (1928), on which appellant relies, is not analogous because the affidavit there omitted the essential jurisdictional facts altogether.
2. Diligent Search
Whether respondents' efforts to serve appellant constituted a diligent effort is a question of fact. See Duresky v. Hanson, 329 N.W.2d 44, 49 (Minn. 1983) (stating whether a diligent search has been made is a fact question). We will not reverse the district court's finding that the search was diligent unless that finding is clearly erroneous. See Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (stating findings of fact will not be set aside unless clearly erroneous).
With the assistance of a process server and a private investigator, respondents conducted searches of records that likely would contain appellant's address; went to places where appellant had lived at one time; and talked to people who had had contact with appellant. These would seem to be the likely sources of information for locating a person's whereabouts. The investigation exhausted these sources without success until appellant eventually responded to the mailing he received through a post office box. The effort to locate appellant for personal service was substantial and unquestionably diligent. The district court did not err in its finding that the effort was diligent.