Tammy Kirkpatrick, et al., Appellants,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0607

Tammy Kirkpatrick, et al.,
Appellants,

vs.

Meeker County Board of Commissioners,
Respondent.

Filed January 13, 2020
Affirmed
Jesson, Judge

Meeker County District Court
File No. 47-CV-18-853

John E. Mack, Joel A. No vak, New London Law, P.A., New London, Minnesota (for
appellants)

Scott T. Anderson, Abigail R. Kelzer, R upp, Anderson, Squires & Waldspurger, P.A.,
Minneapolis, Minnesota (for respondent)

Considered and decided by Ross, Pr esiding Judge; Rodenberg, Judge; and
Jesson, Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
Unhappy with respondent Meeker Coun ty Board of Commissioners’ decision to
grant their neighbor a conditional use permit to build a rifle and trap shooting range near
their home, appellants Tammy and Richard Kirkpatrick filed a lawsuit. But the

2
Kirkpatricks failed to properly serve the Meeker County Board Chair, which was required
to initiate this civil action under the Minnesota Rules of Civil Procedure. As a result, the
district court did not err by dismissing the Ki rkpatricks’ suit for lack of jurisdiction, and
we affirm.
FACTS
In June 2018, the Eden Valley Sports man’s Club applied for a conditional use
permit in Meeker County. The Sportsman’s Club planned to build a rifle and trap shooting
range on property owned by a third party. Appellants Ta mmy and Richard Kirkpatrick
own land near the proposed rang e and were concerned about the range’s impact on their
ability to enjoy thei r property. When the Meeker County Pl anning a nd Zoning
Commission held a public hearing on the Sportsman’s Club’s conditional use permit
application, the Kirkpatricks and others shar ed their objections. After the hearing, the
commission recommended that respondent Meeker County Board of Commissioners (the
board) approve the application with several suggested conditions. The board granted the
permit and mailed notices to all interested parties, including the Kirkpatricks.
Seeking to challenge the board’s decision, the Kirkpatricks’ counsel emailed the
board chair a notice of appeal. Two days later, they filed the notice of appeal in district
court. The Kirkpatricks also sent the board chair a notice of appeal in the mail.1
In response, the board filed an answer to the Kirkpatricks’ notice of appeal and
raised several affirmative defenses, including a lack of jurisdiction and insufficient service

1 While the board chair acknowledges he rece ived the emailed notice of appeal, he
maintains that he did not receive the mailed notice.

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of process. Thereafter, the Kirkpatricks moved to amend their notice of appeal to remedy
some of the issues the board raised in its answer. But they did not remedy the service
defects. The board then moved to dismiss th e action, in relevant part, for insufficient
service of process and a resulting lack of juri sdiction. After a hearing on all motions, the
district court granted the board’s motion to dismiss. The Kirkpatricks appeal.2
D E C I S I O N
The central issue in this ca se is whether the Kirkpatricks properly served the board.
Several key facts are undisputed. It is undisputed that the board sent the Kirkpatricks notice
that it granted the Sportsman’s Club its cond itional use permit. Th e Kirkpatricks were
required to appeal within 30 days after that notice. 3 To serve the board, the Kirkpatricks
needed to serve either the Meeker County Board Chair or the Meeker County Auditor. See
Minn. R. Civ. P. 4.03(e)(1) (requiring service of a summons upon the chair of the county
board or the county auditor of a defendant county). The Kirkpatricks sent the board chair
a notice of appeal by U.S. mail and by email. But the board chair did not consent to service

2 This appeal comes from district court rather than by writ of certiorari because, under the
Meeker County ordinances, an aggrieved party can appeal a grant of a conditional use
permit to the district court. Meeker County, Minn., Zoning Ordinance §§ 6A.02.G.7, 8.01
(2018); see also Toby’s of Alexandria, Inc. v. County of Douglas , 545 N.W.2d 54, 56
(Minn. App. 1996) (holding that the district court has jurisdiction over an appeal of a
county’s conditional use permit decision, when the county’s controlling ordinance, enacted
within the powers granted by the enabling statute, directs a ppeal to the district court),
review denied (Minn. May 21, 1996).
3 The parties dispute which laws govern this appeal: the Minnesota Statutes or the Meeker
County Land Ordinances. But the Kirkpatricks do not dispute that the time window for the
appeal is 30 days, as the board contends. A nd even if there were a dispute on this point,
the timeline to comple te service is not determinativ e because the board was never
personally served in this matter. Therefore, we do not need to resolve the issue of which
law is proper because it has no bearing on the outcome of this appeal.

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by mail or email and did not return any acknowle dgement or waiver of service. Yet, the
board had actual notice of the Kirkpatricks’ appeal.
With these uncontroverted facts in mi nd, the remaining question is a legal
one: whether service of the notice of appeal by mail or email was sufficient. We review
this question of law de novo. Roehrdanz v. Brill , 682 N.W.2d 626, 629 (Minn. 2004)
(“Whether service of process was effective is a question of law that we review de novo.”).
To answer this question, we first consider Minnesota casel aw. We then turn to the
Minnesota Rules of Civil Proced ure, the application of which we also review de novo.
Shamrock Dev., Inc. v. Smith , 754 N.W.2d 377, 382 (Minn. 2 008). In this context, we
finally review the Kirkpatricks’ argument that personal service is not required under rule
4.03(e) of the Minnesota Rules of Civil Procedure.
We turn first to Minnesota caselaw to address the Kirkpatricks’ argument that they
properly served the board by mailing an d emailing notices to the board chair. 4 Because
two recent Minnesota cases held that these methods are insufficient for service of process,
we disagree.
Certified mail—which is more formal than the mail process used here—was found
to be insufficient service by th e Minnesota Supreme Court in Melillo v. Heitland ,
880 N.W.2d 862, 865 (Minn. 2016). There, the plaintiff attempted to complete service of
process on the defendant by sending the defendant certified mail, which includes a delivery

4 In their briefing, the Kirkpa tricks also argued that serv ice on the board was effective
because they mailed and emailed notices to the Meeker County Attorney, but the
Kirkpatricks conceded this point at oral argument.

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receipt. Melillo, 880 N.W.2d at 863. But the court co ncluded that this was not sufficient
service because certified mail does not c onstitute personal service, nor does the
certified-delivery receipt satisfy the requir ements to waive service by mail, under
Minnesota Rule of Civil Procedure 4.05. Id. at 865; see also Minn. R. Civ. P. 4.05(a)
(permitting a plaintiff to request that a defend ant waive service if th e plaintiff does so by
mailing the defendant the notice and waiver reque st with an appropriate waiver form and
prepaid means to return it). And the suprem e court made a distinction between personal
service—which is governed by rule 4.03—and waiving service by mail—governed by rule
4.05. Melillo, 880 N.W.2d at 864. The court rej ected service by certified mail as
insufficient under rule 4.05 and explained, “[ t]o state the obvious: service by mail is not
personal service, and personal service is not service by mail.” Id.
Similarly, this court considered whether service of process by electronic means is
sufficient in Kokosh v. $4657.00 in U.S. Currency , 898 N.W.2d 284, 287-88 (Minn.
App. 2017), review denied (Minn. Aug. 8, 2017). There, an individual tried to serve the
local county attorney with a complaint by electronic means. Kokosh, 898 N.W.2d at 286.
And we concluded that “[e]lectronic service is not permitted when serving a complaint to
initiate an action unless consente d to by the other party.” Id. at 288. In sum, existing
Minnesota precedent establishes that mail a nd email do not constitute personal service of
process, and are insufficient unless a party waives service or consents to these alternatives.
This precedent is grounded in the langu age of the Minnesota Rules of Civil
Procedure. When considering the service-of-process requirements established in rule 4 of
the Minnesota Rules of Civil Procedure, we observe that the rule establishes three general

6
methods for service: personal service, servic e by publication, and waiver of service by
mail. Minn. R. Civ. P. 4.03-.05; see also Kokosh , 898 N.W.2d at 288 (concluding that
service of process must be completed in one of three ways: “(1) personal service under
rule 4.03; (2) publication under rule 4.04; or (3) [waiver by] U.S. mail under rule 4.05”).
It is undisputed that none of these three me thods occurred here. And rule 4.03, which
governs service upon a county board, requires personal service.
Still, according to the Kirkpatricks, personal service was not required. They contend
that the omission of the word “personal” from rule 4.03(e), which establishes the procedure
for service of process on a coun ty board, permits them to se rve the board by mail, email,
or other means. This subsection of rule 4.03—which is titled personal service—states the
following:
Service of summons within the state shall be . . . [u]pon a
municipal or other public corporation by delivering a copy
(1) [t]o the chair of the county board or to the county auditor
of a defendant county[.]

Minn. R. Civ. P. 4.03(e)-(e)(1) (emphasis adde d). The Kirkpatricks focus on the word
“delivering” in this subsection, pointin g out that it is not preceded by the word
“personally.”5
But the Kirkpatricks’ broad definition of “d elivering” in this context is directly
refuted by the recent Minn esota Supreme Court case, Cox v. Mid-Minn. Mut. Ins. Co. ,
909 N.W.2d 540 (Minn. 2018). In Cox, the court considered what “delivery” means in the

5 They contrast this with an earlier subsection governing service of process on an
individual, which requires service “ by delivering a copy to the individual personally.”
Minn. R. Civ. P. 4.03(a) (emphasis added).

7
context of the Minnesota Rules of Civil Procedure. 909 N.W.2d at 543-44. At issue there
was the meaning of “delivery” in rule 3.01, which governs the commencement of a civil
action. Id. at 544. Rule 3.01(c) specifically de scribes the process for having a sheriff
complete service of process and references “delivery” without stating whether personal
delivery is required. In interpreting “deliv ery” in that context, the supreme court
determined that personal delivery was intended, in part because “ [t]he accepted legal
meaning of ‘delivery’ contemplates personal delivery.” Id. (emphasis added). Because the
supreme court has already ruled on the meani ng of “delivery,” we c onclude that service
under rule 4.03(e) must be completed through personal delivery.
In essence, the Kirkpatricks focus on the word “delivery” as an attempt to argue that
actual notice of their lawsuit suffices for servic e of process. But Minnesota caselaw has
explicitly rejected this argumen t and concluded that strict compliance with rule 4.03 is
required. Jaeger v. Palladium Holdings, LLC, 884 N.W.2d 601, 609 (Minn. 2016).
In sum, the Kirkpatricks did not complete service of process on the board chair by
personal service as required under rule 4.03( e). And this service-of-process defect
deprived the district court of jurisdiction. 6 See Schulz v. Town of Duluth , ___ N.W.2d
___, ___, 2019 WL 6519674, at *6 n.9 (Minn. Dec. 4, 2019) (“Failure to serve [the
municipality] within 30 days , however, woul d have been an incu rable jurisdictional

6 The Kirkpatricks also allege that the board submitted to the district court’s jurisdiction
when it filed its answer and attended a scheduling conference. But the board affirmatively
asserted claims of insufficient service and lack of jurisdiction in its answer, preserving the
defense. See Minn. R. Civ. P. 12.08(a) (explaining that the defenses of lack of personal
jurisdiction and insufficient service of process are waived if omitted from the defendant’s
answer).

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defect.”). Accordingly, the district court did not err in dismissing the Kirkpatricks’
conditional use permit appeal. Koski v. Johnson, 837 N.W.2d 739, 742 (Minn. App. 2013)
(noting that without proper service of process, a district court must dismiss an action),
review denied (Minn. Dec. 17, 2013). Because we a ffirm the district court’s dismissal of
the Kirkpatricks’ appeal based on the lack of jurisdiction, we do not reach the other issues
the Kirkpatricks raised.
Affirmed.