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Roehrdanz v. Brill

August 26, 2003

GEORGE M. ROEHRDANZ, RESPONDENT,
v.
TOBY BRILL, APPELLANT.



Hennepin County District Court File No. AC0211465

Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Wright , Judge.

SYLLABUS BY THE COURT

Service by mail of a demand for removal of a conciliation court action to district court is governed by Rule 4.05 of the Minnesota Rules of Civil Procedure, which requires acknowledgment of service to be timely received by the sender in order to effectuate proper service by mail.

The opinion of the court was delivered by: Wright, Judge

Reversed; judgment vacated

Dissenting, Lansing, Judge Hon. John L. Holahan

OPINION

After respondent sued appellant in conciliation court for unpaid legal fees, respondent removed the matter to district court, where a default judgment was eventually entered. The district court denied appellant's motion to vacate the default judgment, finding that appellant was properly served. Appellant contends that service was ineffectual because respondent did not comply with Minn. R. Civ. P. 4.05, which requires an acknowledgment of service by mail. We reverse.

FACTS

On May 7, 2002, respondent George Roehrdanz brought a conciliation court action against appellant Toby Brill for unpaid legal fees. The complainant listed Brill's address as 1212 Yale Place in Minneapolis, and it was personally served on her by a Hennepin County deputy sheriff. Brill filed a counterclaim, on which she listed her address as "5115 Excelsior Blvd." Brill alleged that she did not reside at 1212 Yale Place and that 5115 Excelsior Boulevard was her proper mailing address. A hearing was held on June 17, 2002, and the conciliation court issued a judgment that awarded no damages to either party.

On July 2, 2002, Roehrdanz filed a demand for removal to district court and mailed a copy to Brill, using the 1212 Yale Place address. The demand did not contain an acknowledgment of service, and Brill did not send an acknowledgment of service to Roehrdanz. Brill did not appear for the October 18, 2002, post-removal hearing. On October 29, 2002, the district court entered a default judgment, awarding Roehrdanz $7,500. On November 7, 2002, after opening mail sent to the 1212 Yale Place address, Brill learned of the removal action and the default judgment. She moved to vacate the default judgment, and the district court denied her motion. Brill now appeals.

ISSUE

Where respondent did not send or receive an acknowledgment of service in accordance with Minn. R. Civ. P. 4.05, was service ...


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