Timothy Gieseke, 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This opinion will be unpublished and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
A19-0955

Timothy Gieseke, et al.,
Appellants,

vs.

Nicollet County Drainage Authority for County Ditch No. 86A,
Respondent.

Filed March 9, 2020
Affirmed
Connolly, Judge

Nicollet County District Court
File No. 52-CV-18-781

Steven J. Vatndal, Law Office of Steven J. Vatndal, Mankato, Minnesota (for appellants)

Michelle M. Zehnder Fischer, Nicollet County Attorney, St. Peter, Minnesota (for
respondent)

Considered and decided by Connolly, Presiding Judge; Hooten, Judge; and Reilly,
Judge.
U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Appellants challenge the district court’s grant of summary judgment, arguing that
they properly served their drainage appeal on the county auditor. Because the district court

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correctly ruled that appellants personally served the auditor without an agreement for
alternative service, we affirm.
FACTS
The 12 appellants own land in Nicollet County, Minnesota. In April 2018, a group
of landowners submitted a drainage -improvement petition to respondent Nicollet County
Drainage Authority.1 This petition aimed to improve County Ditch 86A’s pumping system.
In July 2018, respondent issued a n order approving the petition. While the project to
improve County Ditch 86A at first faced no opposition, this later changed. In October
2018, the project engineer recommended a design change. After considering the engineer’s
proposal, respondent issued an order adopting it in November 2018.
Appellants Tim othy, Gary, and Vernon Gieseke went to the Nicollet County
Property and Public Services Office on December 10, 2018, to deliver a notice of appeal
from respondent’s November 2018 order. Appellants brought their notice of appeal under
Minn. Stat. § 103E.091 (2018), which requires service on the county auditor. Minn. Stat.
§ 103E.091, subd. 2(a). Timothy Gieseke personally presented the notice of appeal to an
administrative-support employee. The employee retrieved her supervisor, J.K., who
functions as the Nicollet County Auditor and handles drainage matters.
In diverging affidavits, J.K. and Timothy Gieseke described what occurred next. In
her two affidavits, J.K. stated that Tim othy Gieseke asked her to sign a document
acknowledging she had received the notice of appeal. J.K. signed a document captioned

1 The Nicollet County Board of Commissioners acted as the drainage authority here. See
Minn. Stat. § 103E.005, subd. 9 (2018).

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“Admission of Service.” This document stated: “[J.K.], Nicoll et County Auditor, hereby
accepts service of a Notice of Appeal from Timothy Gieseke, et al . this 10[th] day of
December, 2018.” In her second affidavit, J.K. asserted that Timothy Gieseke never asked
her if she would accept personal service and that her signature on the Admission of Service
merely reflected that she received appellants’ notice of appeal.
Timothy Gieseke presented a different version of events in his affidavit. He asserted
that he asked J.K. whether payment should accompany the notice of appeal. J.K. then
responded “no” and informed him that he should file payment with the district court. Based
on J.K.’s response, Tim othy Gieseke believed he had completed all necessary steps to
begin the drainage appeal, beyond filing it in district court.
After appellants filed their notice of appeal in district court , respondent moved to
dismiss for insufficient service of process under Minn. R. Civ. P. 12.02(d) or for summary
judgment under Minn. R. Civ. P. 56.01. Because the district court considered affidavits, it
applied the summary-judgment standard. The district court granted respondent’s motion
and dismissed the drainage appeal for improper service of process. This appeal follows.
D E C I S I O N
To begin, we observe that the material facts here are uncontested. Appellants agree
that the Minnesota Rules of Civil Procedure apply to service of a notice of appeal in a
drainage action. They also agree that one appellant, a party to the action, personally served
J.K. But appellants fault the d istrict court’s conclusion that J.K. did not agree t o an
alternative form of service.

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This appeal is from summary judgment, which we review de novo while viewing
the evidence in the light most favorable to the nonmoving party. Henson v. Uptown Drink,
LLC, 922 N.W.2d 185, 190 ( Minn. 2019). We also review de novo whether service of
process was effective. Roehrdanz v. Brill , 682 N.W.2d 626, 629 ( Minn. 2004). The
construction and application of the rules of civil procedure are reviewed de novo. Melillo
v. Heitland, 880 N.W.2d 862, 864 (Minn. 2016).
Normally, a civil case begins when the defendant receives service of the summons.
Minn. R. Civ. P. 3.01 (a); see also Eclipse Architectural Grp., Inc. v. Lam , 814 N.W.2d
692, 697 (Minn. 2012) (“A summons is a writ or process commencing the plaintiff’s action
and requiring the defendant to appear and answer.” (quotation omitted)). As noted above,
appellants served their notice of appeal on J.K . See Minn. Stat. § 103E.091, subd. 2(a)
(requiring service on the auditor in drainage appeals). But it is how they performed service
that underlies this appeal.
The rules of civil procedure define who may serve process : “Unless otherwise
ordered by the court, the sheriff or any other person not less than 18 years of age and not a
party to the action , may make service of a summons or other process.” Minn. R. Civ. P.
4.02 (emphasis added). Rule 4.02 aims to “ eliminate bia s, acrimony[,] and possible
oppression which is inherent in litigation.” Landgren v. Pipestone Cty. Bd. of Comm’rs ,
633 N.W.2d 875, 878 (Mi nn. App. 2001) (quotation omitted). Unless authorized by
another rule of civil procedure, no exception to the nonpa rty rule exist s. Lewis v.
Contracting Nw., Inc., 413 N.W.2d 154, 157 (Minn. App. 1987).

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Appellants argue that J.K.’s signature on the Admission of Service represents an
agreement to forgo traditional service of process. They contend that this signature satisfies
their burden of proving effective service and that respondent has not refuted this point.
When the defendant challenges service of process, the plaintiff must meet the “low hurdle”
of submitting evidence showing effective service. DeCook v. Olmsted Med. Ctr., Inc., 875
N.W.2d 263, 271 ( Minn. 2016). If the plaintiff does so, then the burden of showing
ineffective service shifts to the defendant. Id.; Shamrock Dev., Inc. v. Smith, 754 N.W.2d
377, 384 (Minn. 2008).
In DeCook, the plaintiffs’ attorneys exchanged several emails with a hospital
compliance officer about an impending medical malpractice suit against the defendant
hospital and several of its physicians and nurses . 875 N.W.2d at 265. In one email, the
compliance officer informed the attorney that she was “authorized to accept service for the
3 physicians . . . and for the 2 named nurses.” Id. As a result, the attorney tried to serve
the defendants by emailing a copy of the summons and complaint to the compliance officer.
Id. The defendants then moved to dismiss for insufficient service of process, which the
district court partially granted. Id. at 265-66.
On appeal, the supreme court determined that the plaintiffs had submitted enough
evidence to show proper service. Id. at 271. In doing so, the court pointed to (1) emails
from the compliance officer stating she could accept service for the defendants ,
(2) affidavits showing that the compliance officer could accept service for the defendants,
(3) the context of the compliance o fficer’s emails showing her connection to the
defendants, and (4) the compliance officer’s signature on an unequivocal acknowledgment

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of service. Id. The supreme court held that the defendants had agreed to accept service
through the compliance officer. Id. at 271-72.
Appellants ask us to apply DeCook’s holding to their conduct. But this case differs
from DeCook in two important ways. First, a party performed the service. In DeCook, the
plaintiffs’ attorneys served the hospital’s compliance officer through email. Id. at 265.
Second, the parties here had no prior communications before the three appellants brought
the notice of appeal to the county office. In contrast, the plaintiffs’ attorney s in DeCook
had communicated with the hospital’s compliance officer about an alternative method of
service. Id.
Here, when viewing the evidence in the light most favorable to appellants, the record
supports the district court’s ruling. In his affidavit, Timothy Gieseke discusses no prior
communications with J.K. about waiving formal service. Instead, this affidavit establishes
that J.K. accepted the notice of appeal and that she told Timothy Gieseke to file his notice
of appeal and corresponding payment in district court . Nothing in Timothy Gieseke’s
affidavit conflicts with J.K.’s averment that her signature on the Admission of Service
simply reflected her receipt of appellants’ notice of appeal. J.K.’s affidavits support the
district court’s ruling. And the record contains no other evidence showing an agreement
to alternative service.
We need not, and do not, answer whether a party can waive rule 4.02’s nonparty
protection under DeCook. The evidence here viewed in the light most favorable to
appellants show that J.K. did not do so. Her signature on the Admission of Service did not
reveal an intention to waive traditional service of process or the protection of rule 4. 02.

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Thus, appellants have not shown effective service; they have shown that a party personally
served J.K.
In sum, the district court correctly granted summary judgment and dismissed
appellants’ drainage appeal because Tim othy Gieseke personally served the notice of
appeal on J.K. “Unless service is valid, the court lacks jurisdiction to hear the case.” Lewis,
413 N.W.2d at 157. And while we recognize the harsh result, our caselaw supports this
decision. See id. (“While the results are harsh, there is no exception to the nonparty rule
without authorization by the Minnesota Rules of Civil Procedure.”).2
Affirmed.

2 Because we conclude that appellants did not properly serve J.K., we do not address
respondent’s other arguments.