Keith Melillo v. Terry Arden Heitland ( 2015 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0083
Keith Melillo,
Appellant,
vs.
Terry Arden Heitland,
Respondent.
Filed August 31, 2015
Reversed and remanded
Johnson, Judge
Scott County District Court
File No. 70-CV-14-13076
Terry A. Watkins, Watkins Law Office, LLC, Faribault, Minnesota (for appellant)
Bryan J. Chant, Law Offices of Thomas P. Stilp, Golden Valley, Minnesota (for
respondent)
Considered and decided by Johnson, Presiding Judge; Kirk, Judge; and Reilly,
Judge.
UNPUBLISHED OPINION
JOHNSON, Judge
Keith Melillo brought this lawsuit against Terry Arden Heitland based on personal
injuries he allegedly sustained in an automobile accident. The district court dismissed
Melillo’s lawsuit on the ground that he did not effect service of process within the
applicable statute of limitations. We conclude that, in light of the relevant caselaw,
Melillo’s delivery of the summons and complaint by certified mail, evidenced by a signed
return receipt, is valid service of process. Therefore, we reverse and remand.
FACTS
On August 1, 2008, Melillo and Heitland were involved in an automobile accident.
On four occasions in 2013 and 2014, Melillo’s attorney attempted to commence this
action by personal delivery of the summons and complaint on Heitland. Twice Melillo’s
attorney arranged for service of process by the Hennepin County Sheriff’s Office; twice
he contracted with a private process server. All four of those attempts were unsuccessful.
On June 6, 2014, Melillo’s attorney sent the summons and complaint to Heitland
at his residence by certified mail, with a return receipt requested. Melillo’s attorney later
received a green return-receipt post card, which bears Heitland’s signature and indicates
that Heitland received delivery of the envelope on June 9, 2014.
On July 1, 2014, Heitland served his answer. He alleged, among other things, that
service of process was insufficient and that Melillo’s claim is barred by the applicable
statute of limitations. On August 18, 2014, Heitland served a motion to dismiss the
complaint. In an accompanying memorandum, Heitland argued that dismissal is required
because he never was personally served with the summons and complaint and because
the applicable statute of limitations had lapsed. See Minn. Stat. § 541.05, subd. 1(5)
(2014). The district court granted the motion in a two-page order. The district court
concluded that Melillo “did not properly serve [Heitland] with the Summons and
Complaint under either Rule 4.03 or 4.05 of the Minnesota Rules of Civil Procedure
before the expiration of the statute of limitations.” Melillo appeals.
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DECISION
Melillo argues that the district court erred by granting Heitland’s motion to
dismiss. He contends that service of process was effected before the statute of limitations
lapsed. This court applies a de novo standard of review to a district court’s determination
whether service of process is effective. Shamrock Dev., Inc. v. Smith, 754 N.W.2d 377,
382 (Minn. 2008).
Melillo’s appeal implicates the following provisions of rule 4 of the Minnesota
Rules of Civil Procedure:
4.03 Personal Service
Service of summons within the state shall be as
follows:
(a) Upon an Individual. Upon an individual by
delivering a copy to the 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. . . .
....
4.05 Service by Mail
In any action service may be made by mailing a copy
of the summons and of the complaint (by first-class mail,
postage prepaid) to the person to be served, together with two
copies of a notice and acknowledgment conforming
substantially to Form 22 and a return envelope, postage
prepaid, addressed to the sender. If acknowledgment of
service under this rule is not received by the sender within the
time defendant is required by these rules to serve an answer,
service shall be ineffectual.
Unless good cause is shown for not doing so, the court
shall order the payment of the costs of personal service by the
person served if such person does not complete and return the
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notice and acknowledgment of receipt of summons within the
time allowed by these rules.
4.06 Return
Service of summons and other process shall be proved
by the certificate of the sheriff or other peace officer making
it, by the affidavit of any other person making it, by the
written admission or acknowledgment of the party served, or
if served by publication, by the affidavit of the printer or the
printer’s designee. The proof of service in all cases other than
by published notice shall state the time, place, and manner of
service. Failure to make proof of service shall not affect the
validity of the service.
Minn. R. Civ. P. 4.03, 4.05, 4.06.
Melillo contends that he effected service of process by personal delivery pursuant
to rules 4.03 and 4.06 by way of certified mail, with return receipt requested.1 He relies
on Blaeser & Johnson, P.A. v. Kjellberg, 483 N.W.2d 98 (Minn. App. 1992), review
denied (Minn. June 10, 1992). In that case, this court held that a defendant’s receipt of a
summons and complaint by certified mail was effective service of process because the
delivery of the summons and complaint to the individual defendant was proved by his
signature on the return receipt. Id. at 102. In reaching that conclusion, this court relied
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Melillo does not argue in his brief that he validly served process by mail pursuant
to rule 4.05. Such an argument would fail because of the requirement that an
acknowledgment-of-service form be signed by the defendant and returned to the plaintiff.
The rule states, “If acknowledgement of service under this rule is not received by the
sender within the time defendant is required by these rules to serve an answer, service
shall be ineffectual.” Minn. R. Civ. P. 4.05. “Strict compliance” with this rule is
required. Hughes v. Lund, 603 N.W.2d 674, 677 (Minn. App. 1999). Melillo concedes
that he never received a signed acknowledgment-of-service form. In fact, the record is
silent as to whether Melillo’s attorney included an acknowledgment-of-service form in
the envelope that he sent to Heitland. Thus, the district court correctly concluded that
Melillo did not effect service of process by mail pursuant to rule 4.05.
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on Stonewall Ins. Co. v. Horak, 325 N.W.2d 134 (Minn. 1982), in which the supreme
court considered a case with similar facts and reasoned that a signed return receipt
satisfies the requirements of rule 4.06 because the return receipt proves that the summons
and complaint were personally delivered to the individual defendant. Id. at 136. The
only significant difference between Blaeser & Johnson and Stonewall is that, in the latter
case, the defendant was not present within the state because he was in military service
and stationed in a foreign country. Id. at 135. But the defendant nonetheless received the
summons and complaint by certified mail at his army post office box and personally
signed the return receipt. Id. The supreme court applied Minnesota’s long-arm statute,
which provided that “a Minnesota court may exercise personal jurisdiction over [a]
nonresident defendant . . . ‘in the same manner as if . . . he were a resident of this state.’”
Id. (quoting Minn. Stat. § 543.19, subd. 2 (1980)). That portion of the Stonewall opinion
allowed this court in Blaeser & Johnson to reason that “if effective service can be made
outside the state under the facts of Stonewall, then similar facts would render effective
service within the state.” Blaeser & Johnson, 483 N.W.2d at 101.
The facts of the present case are substantially the same as the facts of Blaeser &
Johnson. In each case, the plaintiff sent a summons and complaint to an individual
plaintiff by certified mail, with return receipt requested. See id. at 100. In each case, the
individual defendant signed the return receipt, which was returned to the plaintiff’s
attorney, thereby proving that the defendant received personal delivery of the summons
and complaint. See id. In light of Blaeser & Johnson, Melillo’s attorney’s efforts to
serve process on Heitland satisfy the requirements of rule 4.03 and 4.06.
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Heitland contends that Blaeser & Johnson is inapplicable on the ground that this
court’s decision was based on the defendant’s waiver of the right to challenge the
sufficiency of service of process, not on the sufficiency of service of process itself. This
court concluded in part 4 of the Blaeser & Johnson opinion that the defendant had
waived his right to challenge the sufficiency of service of process by taking various
actions to defend against the plaintiff’s claim on the merits. See id. at 102. But this court
also concluded in part 3 of the Blaeser & Johnson opinion that the “requirements [of rule
4.03(a)] have been satisfied,” for the reasons that previously had been expressed in
Stonewall. Id. In short, this court decided the Blaeser & Johnson appeal on two grounds,
either of which would have been sufficient by itself. See id. Nothing in the Blaeser &
Johnson opinion suggests that the reasoning in part 3 is dictum or otherwise
inconsequential and that the ultimate disposition of the appeal rests solely on part 4.
Thus, we reject Heitland’s argument that Blaeser & Johnson did not hold that service of
process could be effected by certified mail, with return receipt requested. Cf. Coons v. St.
Paul Cos., 486 N.W.2d 771, 773 n.1 (Minn. App. 1992) (distinguishing Blaeser &
Johnson in case concerning service by mail pursuant to rule 4.05), review denied (Minn.
July 16, 1992).
In sum, we conclude that, in light of Blaeser & Johnson, Melillo effected valid
service of process by certified mail, as proved by the signed return receipt. We further
conclude that service of process was effected within the limitations period. Thus, the
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district court erred by granting Heitland’s motion to dismiss. Therefore, we reverse and
remand for further proceedings.
Reversed and remanded.
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