Keith Melillo v. Terry Arden Heitland

Minnesota Court of Appeals August 31, 2015

Opinion

This opinion will be unpublished and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UNPUBLISHED OPINION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


       1
        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.

                                             4
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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Reference

Status: Unpublished