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Roehrdanz v. Brill

July 15, 2004

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



SYLLABUS BY THE COURT

SYLLABUS

A litigant may remove an action from conciliation court to district court by serving a demand for removal by first-class mail under Minn. Gen. R. Prac. 521(b)(1); a return of an acknowledgment of service by mail is not required.

The opinion of the court was delivered by: Meyer, Justice.

Reversed.

Heard, considered, and decided by the court en banc.

OPINION

We are asked to decide the proper method for service of a demand to remove a conciliation court action to district court. The court of appeals held that service by mail of a demand for removal to district court is not effective unless the responding party returns an acknowledgment of service as required by Minn. R. Civ. P. 4.05. We reverse and hold that a party appealing a conciliation court judgment may effectively serve a demand for removal by mail without receiving an acknowledgment of service. We also hold that the district court did not abuse its discretion in refusing to vacate a default judgment entered against respondent Toby Brill.

On May 7, 2002, George Roehrdanz, the appellant, filed a statement of claim in conciliation court for the collection of $7,500 in attorney fees against his former client, Toby Brill. A Hennepin County sheriff personally served a summons on Brill on May 13, 2002, at 1212 Yale Place, Minneapolis, pursuant to Minn. Gen. R. Prac. 508(d)(1). Brill responded to Roehrdanz's statement of claim and filed a counterclaim that stated her address as 5115 Excelsior Boulevard, Minneapolis. The conciliation court held a hearing on June 17, 2002, and awarded no damages to either party and entered judgment accordingly. The next day, the district court administrator mailed a notice of judgment to the parties. The court sent the notice to Brill at 1212 Yale Place, the address where she had been personally served with the complaint.

On July 2, 2002, within 20 days of the mailing of the conciliation court judgment as required by Minn. Gen. R. Prac. 521(b), Roehrdanz filed a demand for removal of the case to district court on a form provided by the district court. On the same day, Roehrdanz mailed a copy of the demand for removal to Brill at 1212 Yale Place. The demand for removal did not contain an acknowledgment of service by mail. On July 9, 2002, the district court mailed to Brill at 1212 Yale Place a "Notice of Judicial Officer Assignment," and on July 17, 2002, an order setting the date for trial. Brill did not appear at the October 18, 2002, trial. The court proceeded with a default hearing and at the hearing Roehrdanz offered proof of the debt that Brill owed him. On October 29, 2002, the district court entered a default judgment against Brill in the amount of $7,949.06 and mailed notice of the default judgment to 1212 Yale Place.

On November 18, 2002, Brill moved to vacate the default judgment, claiming that she did not reside at 1212 Yale Place and therefore did not receive the demand for removal until after the default judgment had been entered. She asserted that Roehrdanz's service of the demand for removal was ineffective because it did not contain an acknowledgment of service and therefore did not comply with the requirements for service by mail set forth in Minn. R. Civ. P. 4.05.

The district court held a hearing at which it considered conflicting affidavits submitted by Brill and Roehrdanz. Brill submitted an affidavit that alleged that she did not reside at 1212 Yale Place and therefore did not receive the demand for removal until after the default judgment had been entered. She stated that she moved to a new address in May 2002 and first learned of the default judgment on November 7, 2002, when she collected her mail at 1212 Yale Place. Roehrdanz submitted an affidavit from Brill's landlord, which stated that Brill was a tenant at 1212 Yale Place from 1993 through November 2002 and that, around the time of the default judgment, the landlord frequently observed Brill's van in the building's parking lot. Roehrdanz submitted his own affidavit, in which he claimed that he knew Brill resided in the vicinity of 1212 Yale Place because he had seen her at various neighborhood functions. He claimed to have confirmed his belief by checking Brill's address in the Minneapolis white pages before he filed the conciliation court action. The affidavit also stated that he assumed the Excelsior Boulevard address was the location of Brill's office, as her business letterhead listed her address as "5115 Excelsior Boulevard, Suite 401."

The district court found that 5115 Excelsior Boulevard was a Mailboxes Etc. location where Brill had maintained a post office box for many years. The court found that 1212 Yale Place was, at all relevant times, Brill's home address.*fn1 In addition to relying on affidavits, the court noted that Brill failed to offer any proof, such as a driver's license or utility bill, that she resided somewhere other than 1212 Yale Place. Based upon the evidence, the district court concluded that Brill did not have a reasonable excuse for her failure to appear at the October 18 hearing and denied the motion to vacate the judgment.

Brill appealed the denial of her motion to vacate the default judgment. The court of appeals reversed the district court, holding that Roehrdanz's attempt to serve Brill by mail with the demand for removal to district court was ineffective because Roehrdanz did not receive an acknowledgment of service from Brill, as required by Minn. R. Civ. P. 4.05. Roehrdanz v. Brill, 668 N.W.2d 217, 221 (Minn. App. 2003). Because the court concluded that service was ineffective, it reasoned that the district court did not have jurisdiction over the removed action. Id. We granted Roehrdanz's petition for review and ...


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