Living Word Christian Church, Appellant,

This opinion will be unpublished and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
A20-0551

Living Word Christian Church,
Appellant,

vs.

Church Mutual Insurance Company,
Respondent.

Filed December 21, 2020
Affirmed
Johnson, Judge

Hennepin County District Court
File No. 27-CV-19-10884

Timothy D. Johnson, Alexande r M. Jadin, Anthony A. Remick, Smith Jadin Johnson,
P.L.L.C., Bloomington, Minnesota (for appellant)

Christian A. Preus, Bassford Remele, P.A., Minneapolis, Minnesota (for respondent)

Considered and decided by Frisch, Presid ing Judge; Johnson, Judge; and Cleary,
Judge.

U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
The plaintiff attempted to commence this action by serving the defendant with a
summons and a complaint from a different ca se. The caption of the summons and the

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant
to Minn. Const. art. VI, § 10.

2
complaint named a different plaintiff and a di fferent defendant. The allegations in the
complaint described a set of facts that are unr elated to the parties to this action. The
defendant moved to dismiss, and the district court granted the motion. We conclude that
the summons and complaint are fatally defec tive such that proce ss is insufficient.
Therefore, we affirm.
FACTS
On June 11, 2017, the Li ving Word Christian Center1 sustained hail damage to its
property. Living Word submitted a claim to its insurer, Church Mutual Insurance
Company, which paid Living Word more than $600,000 in insurance benefits. But Church
Mutual denied the claim in part. Living Word sought a voluntary resolution of the denied
part of the claim, but the parties did not re ach an agreement within the policy’s two-year
limitation period.
On June 11, 2019, Living Word attempted to commence this action against Church
Mutual by serving process on the commissioner of commerce, as permitted by statute. See
Minn. Stat. § 45.028, subd. 2 (2018). Livi ng Word’s attorney mailed to both the
commissioner and to Church Mutual an enve lope that included five documents: (1) a
summons captioned Lindsay Can-Am Limited Partnership v. Liberty Mutual Insurance
Company; (2) a complaint captioned Lindsay Can-Am Limited Partnership v. Liberty

1The case caption in the district court identified appellant as “Living Word Christian
Church.” But appellant is identified in its appellate brief as “Living Word Christian
Center.” The caption of this opinion conforms to the caption used in the district court. See
Minn. R. Civ. App. P. 143.01. But we use appellant’s preferred name throughout the body
of the opinion.

3
Mutual Insurance Company, which described a property not owned by Living Word and
not insured by Church Mutual; (3) an affidavit of compliance with the substituted-service
requirements, also captioned Lindsay Can-Am Limited Part nership v. Liberty Mutual
Insurance Company; (4) a cover letter addressed to Liberty Mutual Insurance Company
concerning an action captioned Lindsay Can-Am Limited Part nership v. Liberty Mutual
Insurance Company ; and (5) a cover letter addresse d to “Church Mu tual Insurance
Company c/o Minnesota Department of Commerce” concerning an action captioned Living
Word Christian Center v. Church Mutual Ins. Co.
On July 23, 2019, an atto rney representing Church Mutual telephoned Living
Word’s attorney to say that Church Mutual had received documents concerning a case
against Liberty Mutual Insurance Company but had not received a summons and complaint
concerning a case against Church Mutual. The next day, Living Word’s attorney sent an
e-mail message to Church Mutu al’s attorney and attached the same documents that had
been erroneously sent by mail. On July 27, 2019, Living Word filed with the district court
administrator a summons and complaint bearing the caption of this action.
In September 2019, Church Mutual moved to dismiss. Living Word opposed the
motion. After a hearing, the district court granted the motion, reasoning that Living Word
did not properly effect service of process and that the two-year limitation period had
expired. Living Word appeals.
D E C I S I O N
Living Word argues that the district cour t erred by granting Church Mutual’s motion
to dismiss. We note at the ou tset that both parties describe the central issue in terms of

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service of process. The issue is more appropriately described in terms of process itself. A
motion to dismiss may be based on insufficient process or insufficient service of process.
See Minn. R. Civ. P. 12.02(c) & (d). But the district court’s reasons for dismissing the
action are based on the documents themselves, not the manner in which they were served.
Thus, we will confine our anal ysis to paragraph (c) of ru le 12.02, which concerns
sufficiency of process, and the caselaw that flows from that paragraph of the rule.
If a defendant moves to dismiss for insu fficient process pursuant to rule 12.02(c),
the first question is whether process is defective. DeCook v. Olmsted Med. Ctr., Inc. ,
875 N.W.2d 263, 266-67 (Minn. 2016). If process is not defective, the motion must be
denied. If process is defective, the next que stion is whether it is fatally defective. Id. at
267-69; Tharp v. Tharp, 36 N.W.2d 1, 3 (Minn. 1949). If process is fatally defective, it is
void, and a motion to dismiss must be granted. Tharp, 36 N.W.2d at 2-4 (interpreting
Minn. Stat. § 543.02 (1946)). If pr ocess is not fatally defectiv e, it may be cured by an
amendment. DeCook, 875 N.W.2d at 267-69; Nelson v. Glenwood Hills Hosps., Inc. ,
62 N.W.2d 73, 78 (Minn. 1953); Tharp, 36 N.W.2d at 3. If a plaintiff seeks to amend
process, the final question is whether the district court has erred in its ruling on the motion.
DeCook, 875 N.W.2d at 269. A district court “i n its discretion and on such terms as it
deems just may at any time allow any summons or other process or proof of service thereof
to be amended, unless it clearly appears that substantial rights of the person against whom
the process issued would be prejudiced thereby.” Minn. R. Civ. P. 4.07.
This court applies a de novo standard of review to a district court’s application of
the rules of civil procedure concer ning sufficiency of process. DeCook, 875 N.W.2d at

5
266. We apply an abuse-of-discretion standard of review to a district court’s ruling on a
motion to amend process. Id. at 269; Nelson, 62 N.W.2d at 80.
A.
We begin by asking whether the process se rved on Church Mutual is defective. See
DeCook, 875 N.W.2d at 266-67. Because Living Word attempted to serve process pursuant
to a statute authorizing substituted service, we refer to that statute:
Service of process . . . may be made by . . . sending a
copy of the process to the commissioner by certified mail, and
is not effective unless: (1) the pl aintiff . . . sends notice of the
service and a copy of the proc ess by certified mail to the
defendant . . . ; and (2) the plaintiff’s affidavit of compliance is
filed in the action or proceeding on or before the return day of
the process, if any, or within further time as the court allows.

Minn. Stat. § 45.028, subd. 2 (2018). The statute itself does not define the term “process”
or specify any particular requirements for process that is served pursuant to the statute. See
Minn. Stat. § 45.011 (2018) (defining four terms but not “process”). But the supreme court
has stated that “a plaintiff serving pr ocess under [section 45.028,] subdivision 2
commences litigation by provid ing the Commissioner of Comme rce with a copy of the
summons and complaint.” Meeker v. IDS Prop. Cas. Ins. Co., 862 N.W.2d 43, 47 (Minn.
2015). Thus, the “process” that is required by section 45.028, subdivision 2, is a summons
and a complaint. 2 This meaning is consistent with the rules of civil procedure, which

2Living Word contends that a summons is not process. It quotes Nelson, in which
the supreme court stated that “a summons is not a process and constitutes merely a notice
to defendant that an action ha s been commenced and, if no de fense is offered or made, a
default judgment will be taken against him wh o is in default.” 62 N.W.2d at 78. The
Nelson court continued by noting, “Of course, where particular statutes use the phrase
‘service of process’ it has been deemed necessary to hold that a summons constitutes

6
require a plaintiff commencing a civil action to serve a summons on a defendant, Minn. R.
Civ. P. 3.01(a); require a complaint, Minn. R. Civ. P. 7.01; and require that the complaint
“be served with the summons,” Minn. R. Civ. P. 3.02. In addition, the supreme court’s
application of the rules of civil procedure illustrates that “process” generally consists of a
summons and a complaint. See, e.g., DeCook, 875 N.W.2d at 268; Walker Emp’t Serv.,
Inc. v. Swanson, 154 N.W.2d 823, 824 (Minn. 1967); Nelson, 62 N.W.2d at 78.
To determine whether the summons and co mplaint are defective, we refer to the
rules of civil procedure, which apply “in the ab sence of a clear intention to the contrary.”
See Meeker, 862 N.W.2d at 46 (quota tion omitted). The required form of a summons is
prescribed by rule:
The summons shall state the name of the court and the
names of the parties , be subscribed by the plaintiff or by the
plaintiff’s attorney, give an address within the state where the
subscriber may be served in person and by mail, state the time
within which these rules require the defendant to serve an
answer, and notify the defendant th at if the defe ndant fails to
do so judgment by default wi ll be rendered against the
defendant for the relief demanded in the complaint.

Minn. R. Civ. P. 4.01 (emphasis added).
Similarly, the required form of a complaint is prescribed by rule:
Every pleading shall have a caption setting forth the
name of the court and the county in which the action is brought,
the title of the action, the court file number if one has been
assigned, and a designation as in Rule 7, and, in the upper right-
hand corner, the appropriate case type . . . . In the complaint,

process under those statutes.” Id. at 77. We need not attempt to reconcile Nelson with
later supreme court opinions. We need only observe that the Meeker court stated that
“service of process” pursuant to section 45.028, subdivision 2, is achieved if a plaintiff
properly serves a summons and a complaint. 862 N.W.2d at 47.

7
the title of the action shall include the names of all the parties,
but in other pleadings it is suffi cient to state the first party on
each side with an appropriate indication of other parties. A
party may be identified by initia ls or pseudo nym only where
authorized by law or court order.

Minn. R. Civ. P. 10.01 (emphasis added). In addition, a complaint “shall contain a short
and plain statement of the clai m showing that the pleader is entitled to relief.” Minn. R.
Civ. P. 8.01. The purpose of the complaint is to “‘give fair notice to the adverse party of
the incident giving rise to the suit with sufficient clarity to disc lose the pleader’s theory
upon which his claim for relief is based.’” Walsh v. U.S. Bank, N.A., 851 N.W.2d 598, 602
(Minn. 2014) (quoting Northern States Power Co. v. Franklin, 122 N.W.2d 26, 29 (Minn.
1963) (emphasis added in Walsh)).
In this case, the summons that was se rved on Church Mutual does not properly
“state . . . the names of the parties,” as required by rule 4.01. Likewise, the complaint that
was served on Church Mutual does not properly “include the names of all the parties,” as
required by rule 10.01. In addition, the co mplaint does not “contain a short and plain
statement of the claim showing that the pleade r is entitled to relief,” as required by rule
8.01, because the complaint does not allege any facts that are relevant to the dispute
between Living Word and Church Mutual, thereby failing to “g ive fair notice . . . of the
incident giving rise to the suit.” See Walsh, 851 N.W.2d at 602 (quotation omitted). The
complaint also does not give Church Mutual notice of Living Word’s theory or theories of
relief. See id. The complaint informed Church Mutual of a cl aim that Lindsay Can-Am
was asserting against Liberty Mutual Insurance Company, but that is an altogether different

8
matter, and Church Mutual cannot be expected to draw inferences from a pleading in a
different lawsuit. Thus, the summons and the complaint are defective.
B.
We continue by asking whether the process served on Church Mutual is fatally
defective or whether it can be cured by an amendment. See DeCook, 875 N.W.2d at
267-69; Nelson, 62 N.W.2d at 78; Tharp, 36 N.W.2d at 3. We do so by comparing the
defect in this case with the defects in prior cases considered by the supreme court.
In Tharp, the summons did not inform the defendant that he must respond by serving
an answer and did not provid e the mailing address of the pl aintiff’s attorney for that
purpose. 36 N.W.2d at 2-3. Instead, the su mmons directed “the defendant to appear and
defend the action in the district court.” Id. at 3. The supreme court considered whether
“the summons is so defective in substance that it must be set aside as fatal to jurisdiction.”
Id. The supreme court concluded, “the summons is fatally defective” because it did “not
give defendant the notice which the statute directs should be given” and was “insufficient
to inform defendant . . . of the essential matt ers which the statute requires to be stated in
the summons for the purpose of enab ling him to answer and defend.” Id. The supreme
court added, “The defect here is more than merely technical and formal, and therefore a
mere irregularity; it goes to the substance.” Id.
In Nelson, the summons and complaint misiden tified one of the two defendants.
62 N.W.2d at 74-75. The summons and compla int identified the corporate defendant as
Glenwood Hills Hospital, Inc., inst ead of Homewood Hospital, Inc. Id. T h e
misidentification was not discovered until mid-trial. Id. at 76. The confusion was due in

9
part to the fact that the two hospitals had an intertwined history and were staffed in part by
the same physicians. Id. at 74-76, 78. The district court initially dismissed the
misidentified defendant but later granted the plaintiff’s motion to amend the complaint by
substituting the proper defendant. Id. at 76. The supreme court affirmed that ruling,
reasoning that the proper corpor ate defendant and its officers were “fully informed as to
the circumstances of the action, . . . even th ough an amendment is necessary to correct a
misnomer.” Id. at 78.
In DeCook, the summons and complaint were signed by an attorney who was
licensed in another state but not licensed in Minnesota. 875 N.W.2d at 265. The supreme
court determined that the summons and complaint were defective, id. at 266-67, but not
fatally defective and, thus, not void, id. at 267-69. The supreme court reasoned that the
rules should be interpreted “‘to avoid defeating an action merely because of technical and
formal defects which could not reasonably have misled or prejudiced a defendant.’” Id. at
268 (quoting Nelson, 62 N.W.2d at 77). The supreme court further reasoned that an action
should not be dismissed because of a defect in process if the defendant is “‘fully informed
as to the circumstances of the action, . . . even though an amendm ent is necessary to
correct’ the defect.” Id. at 268 (quoting Nelson, 62 N.W.2d at 78).
In this case, Living Word served Church Mutual with a summons and a complaint
that bore a caption for a completely different case, which concerned a different property, a
different insurance policy, a different plaintiff, and a different defendant. Church Mutual
may or may not have been able to determine that Living Word was attempting to commence
an action against it based on the fifth document in the envelope, a cover letter that referred

10
to both Living Word and Church Mutual. But even if that were so, a cover letter is no
substitute for a summons and a complaint. Furthermore, Church Mutual could only
speculate about the particular facts that might be alleged in such an action, the theories of
relief that might be pleaded, and the relief that might be sought. Su ch speculation is no
basis for preparing and serving an answer to the complaint. The defect in this case is more
serious than the defect in DeCook, in which the summons and complaint fully described
the alleged facts and legal theories, even though the documents were signed by an attorney
who was not licensed in Minnesota. DeCook, 875 N.W.2d at 269. The defect in this case
also is more serious than the defect in Nelson, in which the summons and complaint fully
described the alleged facts and legal theories but misidentified a corporate defendant.
Nelson, 62 N.W.2d at 74-75. The defect in Nelson was not so serious that the defendant
could not answer the complaint, prepare for trial, and actually participate in trial. Id. at
75-76. Because the summons and complaint in this case did not allege any facts relevant
to the dispute between Living Word and Church Mutual, did not state any of Living Word’s
legal theories, and did not describe the relie f sought by Living Word, the summons and
complaint did not allow Church Mutual to be “‘fully informed as to th e circumstances of
the action.’” See DeCook, 875 N.W.2d at 268 (quoting Nelson, 62 N.W.2d at 78).
Thus, the summons and complaint in this case are fatally defective, which means
that they are void and that process is insufficient.
C.
Our conclusion that the summons and complaint are fatally defective is a sufficient
basis for affirming the district court’s grant of Church Mutual’s motion to dismiss. But

11
even if the defect were not fatal, we w ould ask whether the defect was cured by an
amendment or whether the district court erred by denying a motion to amend process. See
Minn. R. Civ. P. 4.07; DeCook, 875 N.W.2d at 269. Living Word, however, never moved
to amend the summons and the complaint. Without any amendment, the summons and
complaint remain defective. See Tharp, 36 N.W.2d at 3-4. Thus, even if the summons and
complaint are not fatally defective, we would conclude that process is insufficient because
the defect in the summons and the complaint were not cured by amendments.
In sum, the district court did not err by granting Church Mutual’s motion to dismiss.
Affirmed.