Lisa Thielen, et al., Appellants,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0634

Lisa Thielen, et al.,
Appellants,

vs.

Eden Valley Sportsman’s Club,
Respondent,

Meeker County Zoning Administration,
Respondent.

Filed March 7, 2022
Affirmed in part and reversed in part
Smith, Tracy M., Judge

Meeker County District Court
File No. 47-CV-20-530

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

Gary R. Leistico, Aaron P. White, Jayne E. Esch, Rinke Noonan, Ltd., St. Cloud,
Minnesota (for respondent Eden Valley Sportsman’s Club)

Scott T. Anderson, Marcus B. Jardine, Rupp, Anderson, Squires & Waldspurger,
Minneapolis, Minnesota (for respondent Meeker County)

Considered and decided by Gaïtas, Presid ing Judge; Smith, Tracy M., Judge; and
Slieter, Judge.
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NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
Respondent M eeker County1 granted respondent Eden Valley Sportsman’s Club a
conditional-use permit (CUP) to construct a shooting range. Appellant-neighbors sued the
county and the club in district court, seeking declaratory and injunctive relief to invalidate
and revoke the CUP and to stop the completi on of the shooting range. The district court
granted respondents’ dispositive motions and dismissed appellants’ claims.
Appellants argue that the district court erred by (1) determining that appellants
failed to effectively serve the county with process initiating the action; (2) dismissing
claims against the county with prejudice, rather than without pr ejudice, if in fact service
was insufficient; and (3) dismissing appellants’ claims against the club on the merits. We
conclude that the district court properly dismissed appellants’ claims against the county for
insufficient service of process but erred by dismissing those claims with prejudice. We
further conclude that the district court proper ly dismissed the claims against the club for
failure to state a claim. We therefore affirm in part and reverse in part.
FACTS
This is the second action ar ising out of a dispute over th e county’s issuance of the
CUP to the club. In the first action, some of the appellants in the present matter attempted

1 The case caption in the district court identifies the county respondent as “Meeker County
Zoning Administration.” But, as Meeker Coun ty explains in its appellate brief, no such
entity exists. 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 Meeker County’s preferred name throughout
the body of this opinion.
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to appeal to the district court the county’s decision to issue the CUP, as permitted by county
ordinances. But, because those parties failed to properly serve the county, the district court
dismissed the action, and this court affirmed that decision on appeal. Kirkpatrick v. Meeker
Cnty. Bd. of Comm’rs, No. A19-0607, 2020 WL 132536, at *1 (Minn. App. Jan. 13, 2020).
In affirming, we rejected the argument that “actual notice” to the county sufficed and held
that personal service on the appropriate official was required by the rules of civil procedure
to constitute service on the county. Id., at *1-3; see also Minn. R. Civ. P. 4.03(e)(1).
Following our ruling, appellants initiated th is second action. They personally served
a summons and complaint on a representative of the club, and they personally served the
land-use director of the planning a nd zoning department of the county. 2 The complaint
alleges that the club is in violation of the terms of the CUP and seeks a declaration that the
CUP is null and void, injunc tive relief prohibiting the club from completing further work
on the shooting range, and revocation of the CUP.
Both the county and the club moved for di smissal of the complaint or for summary
judgment. The district court granted those mo tions and dismissed the case. It concluded
that appellants did not properly serve the county and dismissed the county from the action.
The district court then dete rmined that summary judgment was appropriate because the
complaint failed to assert a proper cause of ac tion. The district court further decided that
issues regarding the issuance and request for revocation of the CUP were fully litigated in

2 Appellants also served the owner of the property on which the club was going to operate
its shooting range, but the property owner was eventually dismissed from this action by
stipulation of the parties.

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the first action and that any claims based on those issues were barred by collateral estoppel,
and it dismissed claims based on those issues with prejudice.3
This appeal follows.
DECISION
I. The district court properly dismissed th e county from this action based on
insufficient service of process but abused its discretion by dismissing claims
against the county with prejudice.

Appellants argue that the district cour t erred by dismissing the county from the
action based on insufficient service of process. They alternatively argue that, if the county
was properly dismissed, the district court erred by dismissing clai ms against the county
with prejudice.
A. Appellants did not properly serve the county.

“Whether service of process is effective pr esents a question of law that we review
de novo.” Jaeger v. Palladi um Holdings, LLC , 884 N.W.2d 601, 606 (Minn. 2016).
Ineffective service of a defendant results in a lack of personal jurisdiction. Tullis v.
Federated Mut. Ins. Co., 570 N.W.2d 309, 311 (Minn. 1997).
Appellants argue that they sufficiently se rved the county beca use they personally
served an administrator in th e county’s zoning administration and the county thus had
“actual notice” of the service of process. But, as explained in our decision in the first action
arising out of this dispute, under the rules of civil procedure, service on a county must be
accomplished by personal service in accordance with Minn. R. Civ. P. 4.03(e)(1). See

3 The district court wrote that “these causes of action shall be dismissed with prejudice.”
That ruling appears to apply to claims against both the county and the club.
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Kirkpatrick, 2020 WL 132536, at *3 (citing Cox v. Mid-Minn. Mut. Ins. Co., 909 N.W.2d
540 (Minn. 2018)). That rule provides that a defendant county is served by delivery “[t]o
the chair of the county board or to the county auditor.” Minn. R. Civ. P. 4.03(e)(1). “Actual
notice” on the part of the co unty does not suffice; strict co mpliance with the procedural
rules is required. See Jaeger, 884 N.W.2d at 609 (“Rule 4. 03 mandates strict compliance
with its terms.”). Service on the county administrator did not comply with the rule.
Appellants cite Buysse v. Baumann-Furrie & Co., 448 N.W.2d 865 (Minn. 1989),
to support their argument that actual notice suffices. They quote this statement in Buysse:
Although the general rule for substitution of defendants is that
service is required unless the substitution or amendment is
done merely to correct a technica lity, . . . we have held that if
service of a summons and comp laint results in an intended
defendant being fully informed of the pendency and nature of
the action, the court has acquired jurisdiction over that
defendant even despite a misnomer.

Buysse, 448 N.W.2d at 871 (citation omitted). But Buysse is inapposite. That case involved
a garnishment action, which is a proceeding ancillary to a main action, and dealt with the
substitution of a defendant company for an affiliated company that was served pursuant to
statute. See id. at 867, 870. Buysse did not address the initial service of a defendant under
Minn. R. Civ. P. 4.03. Moreov er, in its later decision in Jaeger, the supreme court did
address service under rule 4.03, and it emphasize d that “service must accord strictly with
statutory requirements,” rejecting the argument that “actual notice” sufficed. Jaeger, 884
N.W.2d at 609 (quotation omitted).
Appellants also argue that they properly se rved the county beca use they served a
member of a governing body of a public body, which they allege is permitted by Minn. R.
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Civ. P. 4.03(e)(5). But rule 4. 03(e)(5) refers to defendant pub lic bodies “not hereinabove
enumerated.” Counties are enumerated in the rule; rule 4.03(e)(1) provides that service of
a defendant county must be made on the chair of the county board or the county auditor.
That provision controls.
Appellants also complain that the county was “lying in the weeds” prior to bringing
its motion and assert that the county should be “estopped from raising the issue of improper
service of the summons and complaint.” They cite United States v. Calvert, 523 F.2d 895,
912 (8th Cir. 1975), to support this proposition. But Calvert, a federal criminal case,
provides no support for appellants’ argument. That case involved a trial court’s discretion
to exclude rebuttal testimony when it determines that the prosecution has acted unfairly.
Calvert, 523 F.2d at 912. The case says nothing about a party’s prerogative to move to
dismiss a civil action for insuffi cient service of process. And, in any event, appellants do
not provide a cogent argument that the co unty was “lying in the weeds,” and the facts
suggest the opposite—the county asserted that there was insufficient process in its answer
to the complaint.
In sum, the district court correctly concluded that the county had not been properly
served with process. It therefore did not err by dismissing the co unty from the action for
lack of personal jurisdiction.
B. The district court abused its discretion in dismissing appellants’ claims
against the county with prejudice.

Appellants argue that, if dismissal of the county was proper for lack of personal
jurisdiction due to ineffective service of pr ocess, the district court should not have
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addressed the merits of any of the claims against the county and erred by dismissing claims
against it with prejudice. The district court dismissed with prejudice appellants’ claims
against the county that are based “[o]n the issue of the issuance of the CUP and request for
revocation.” It did so based on collateral estoppel, determining that “the identical issue was
previously and fully litigated in 2018 when the Kirkpatricks a ppealed the County’s
decision to issue the CUP.”
We review a district court’s dismissal of a claim with prejudice for an abuse of
discretion. Minn. Humane Soc’y v. Minn. Federated Humane Soc’ys, 611 N.W.2d 587, 590
(Minn. App. 2000). A district court abuses its discretion if it improperly applies the law.
Honke v. Honke, 960 N.W.2d 261, 265 (Minn. 2021).
“An order of dismissal on procedural grounds runs counter to the primary objective
of the law to dispose of cases on the merits.” Firoved v. Gen. Motors Corp., 152 N.W.2d
364, 368 (Minn. 1967). When a party is dismi ssed for ineffective service of process, the
proper action is for the court to di smiss the party without prejudice. Lewis v. Contracting
Nw., Inc., 413 N.W.2d 154, 156 (Minn. App. 1987); see also 1 David F. Herr & Roger S.
Haydock, Minnesota Practice, Civil Rules Annotated § 12:8 (6th ed. 2021) (“The proper
action to be taken by the court, if it finds insu fficient service of process, is to dismiss the
action without prejudice.”).
The county argues that the district court properly considered the merits of the
appellants’ claims against it following the county’s dismissal from the case for insufficient
service of process. It cites Mercer v. Andersen , 715 N.W.2d 114 (Minn. App. 2006),
arguing that it stands for the proposition that an “ineffectiv ely served defendant” “can
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invoke the district court’s c onsideration of a non-jurisdictional issue to dismiss the case
with prejudice.”
In Mercer, the district court dismissed the pl aintiff’s complaint with prejudice on
the ground that the statute of limitations had expired, despite the plaintiff’s concession that
the defendant was insufficien tly served with process. Mercer, 715 N.W.2d at 117-18. In
affirming the district court’s decision, this c ourt took great care to note that statutes of
limitations are unique, observing that they “are both procedural and substantive” and “an
issue separate from subject matter jurisdiction and personal jurisdiction.” Id. at 119. Mercer
was specific to a district court’s considerati on of the statute of limitations and does not
stand for the proposition that a court may prope rly consider the substantive merits of any
claim against a party after determining that it lacks personal jurisdiction over the party due
to insufficient service of process.
We conclude that the district court erre d by considering the merits of appellants’
claims against the county and dismissing th em with prejudice wh en the county was
properly dismissed for lack of personal jurisdiction.
II. The district court properly dismissed appellants’ claims against the club.

Appellants argue that the district court erred by dismissing their claims against the
club. They contend that their complaint alleges violations of the terms and conditions of
the CUP by the club and that they would be entitled to an injunction against the club if they
were able to prove those violations in court.
As an initial matter, we note that th e club moved for both a judgment on the
pleadings under Minn. R. Civ. P. 12.03 and summary judgment under Minn. R. Civ. P.
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56.01. The district court stated that it wa s applying the summary-judgment standard
because it considered matters outside of the pleadings, including the previous action and
the CUP. But the district court’s grant of summary judgment was based in part on its
determination that the complain t fails to state a proper cause of action against the club.
That determination does not require consideration of materials beyond the complaint. We
thus begin with the question whether the complaint states a claim against the club. We
review that question de novo. Burt v. Rackner, Inc., 902 N.W.2d 448, 451 (Minn. 2017).
Though appellants argue that they may sue the club directly for allegedly violating
the CUP, they do not identify a statutory or common-law cause of action against the club.
As the district court properly recognized, the means for seeking enforcement of a CUP is
to petition a district court for mandamus ag ainst the county or ot her public entity
responsible for enforcing the CUP. Minnesot a Statutes section 394.37, subdivision 4
(2020), provides: “Any taxpaye r of the county may institu te mandamus proceedings in
district court to compel specific performance by the proper official or officials of any duty
required [by zoning statutes].” 4 Appellants did not bring a mandamus action against the
county. And they provid e no legal authority to support the proposition that a party may
bring an action against a permittee to enforce the terms of a CUP.
Appellants argue, though, that their comp laint states a claim because it seeks
injunctive relief against the club. The argument is unavailing. “Injunctive relief is a remedy
and not, in itself, a cause of action, and a cause of action must exist before injunctive relief

4 The district court cited not to this statute but to the general mandamus statute authorizing
actions to compel the performance of an official duty, Minn. Stat. § 586.01 (2020).
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may be granted.” Smith v. Spitzenberger, 363 N.W.2d 470, 472 (Minn. App. 1985) (quoting
Ryan v. Hennepin County , 29 N.W.2d 385, 387 (Minn. 1947)). Appellants’ reliance on
Magraw v. Donovan, 163 F. Supp. 184 (D. Minn. 1958), and County of Freeborn v. Bryson,
243 N.W.2d 316 (Minn. 1976), is misplaced. In Magraw, the plaintiffs sought injunctive
relief as a remedy for their cl aim under the federal Civil Ri ghts Act, 42 U.S.C. § 1983.
Magraw, 163 F. Supp. at 185. In Bryson, a landowner sought injunctive relief against a
county based on its claim under the Minnes ota Environmental Rights Act, Minn. Stat.
§§ 116B.01-.13 (1974). Bryson, 243 N.W.2d at 316-17 . In both cases, the parties sought
injunctive relief in connection with their statutory claims. Here, appellants have not
asserted a statutory claim against the club.
Because appellants’ complaint fails to stat e a claim against the club, the district
court did not err by dismissing appellants’ claims against the club.
Affirmed in part and reversed in part.