Patrick Wandersee, 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This opinion is nonprecedential except as provided by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
A21-1060

Patrick Wandersee, et al.,
Appellants,

vs.

RAM Mutual Insurance Company,
Respondent.

Filed February 28, 2022
Affirmed
Slieter, Judge

Sherburne County District Court
File No. 71-CV-20-864

Edward E. Beckmann, Beckmann Law Fi rm, LLC, Bloomington, Minnesota (for
appellants)

John J. Neal, Boe M. Piras, Willenbring, Dahl, Wocken & Zimmermann, PLLC, Cold
Spring, Minnesota (for respondent)

Considered and decided by Gaïtas, Presid ing Judge; Smith, Tracy M., Judge; and
Slieter, Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
Within four days of a two-year limitati on to bring a claim, appellants attempted
substitute service of their complaint agains t respondent through the commissioner of
commerce. The district court dismissed the complaint, without prejudice, for insufficient
service of process. After th e two-year limitation period expired, appellants served an
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“amended” complaint, which the district cour t dismissed as untimely. Appellants claim
the district court erred in both orders.
Because the district court properly dism issed the first compla int for insufficient
service of process, relation back does not apply to the “amended” complaint, and the
district court did not err in dismissing the second complaint as untimely, we affirm.
FACTS
Appellants Patrick and Jean Wandersee were insured by re spondent RAM Mutual
Insurance Company for loss caused by, among ot her perils, fire, windstorm, or hail. The
insurance policy contained a Minnesota Am endatory Endorsement which included a
provision requiring that any suit to recover for a property loss commence within two years
after the date of the loss.
On August 30, 2018, Wandersees’ propert y sustained wind and hail damage for
which they filed a claim. RA M denied coverage after its ad juster reviewed the scope of
the damage and determined repair costs wo uld not exceed the de ductible. Wandersees
disagreed with the determination and, on August 26, 2020, demanded that RAM nominate
a disinterested appraiser as provided by th e insurance policy. In compliance with the
policy, RAM appointed an appraiser within 20 days.
On August 27, 2020, Wandersees attemp ted to commence a suit against RAM by
substitute service of process on the commi ssioner of commerce pursuant to Minn. Stat.
§ 45.028 (2020). RAM moved to dismiss the complaint for insufficient service of process,
arguing the complaint did not me et the requirements for substitu te service. The district
court agreed and, on March 2, 2021, ordered the complaint “dismissed without prejudice,”
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though no entry of judgment was ordered. On March 12, 2021, Wandersees personally
served RAM with an “amended” complaint. The district court concluded that the
“amended” complaint was untimely pursuant to the two-year contractual limitation period
and entered a judgment of dismissal on June 22, 2021. Wandersees appeal from the
judgment of dismissal.
DECISION
As a preliminary matter, we address the scope of our review. Wandersees appeal
the June 22 judgment of dismissal. In th at order, the district court determined the
“amended” complaint was untimely filed beca use the suit-limitation period had expired
and, as it determined in its March 2 order dismissing the original complaint, Wandersees
had not commenced a suit by effectively co mpleting service of process. Because
Wandersees’ appeal of the June 22 order “involve[es] the merits” of the March 2 order, we
first review the March 2 order. Minn. R. Civ. App. P. 103.04.
I. First Order: The district court pr operly dismissed Wandersees’ August 27
complaint for insufficient service of process.

Appellate courts review “whether servic e of process was eff ective, and personal
jurisdiction therefore exists” de novo. Shamrock Dev., Inc. v. Smith, 754 N.W.2d 377, 382
(Minn. 2008). Where service of process is governed by statute, the “[p]rovisions of a
statute relating to the filing and service of notic e must be strictly follo wed if a court is to
acquire jurisdiction.” Allstate Ins. Co. v. Allen, 590 N.W.2d 820, 822 (Minn. App. 1999)
(citing Lebens v. Harbeck, 243 N.W.2d 128, 129 (Minn. 1976)).
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Minn. Stat. § 45.028, subd. 1, allows substitute service on the commissioner of
commerce when a person “engages in co nduct prohibited or made actionable by
chapters 45 to 83, 155A, 309, and 332, and section 326B.802, or any rule or order under
those chapters” and an action “against the pers on which is based on that conduct . . . is
brought under” the same statutes, rules, or orders. Wandersees commenced this action
alleging violation of one of the listed chapters, specifically, Minn. Stat. § 65A.01 (2020).
Minn. Stat. § 65A.01, subd. 3, provides required minimum protections for insureds
in a policy covering the peril of fire.1 Poehler v. Cincinnati Ins. Co., 899 N.W.2d 135, 145
(Minn. 2017) (reiterating that the statutory provisions are mandatory and may not be
waived, but insurance companies may include provisions offering more protection). As is
relevant to Wandersees’ complaint, if an in sured and an insurer cannot agree on the cash
value or amount of a partial loss, “then, on the written demand of either, each shall select
a competent and disinterested appraiser and notify the other of the appraiser selected within
20 days of such demand.” Minn. Stat. § 65A.01, subd. 3.
The district court found that RAM “appoi nted an appraiser on September 11, 2020,
which was within the statutory 20-day dead line” and Wandersees fa iled to “make any
allegations that the insuran ce policy does not meet the c overage requirements set out by
Minn. Stat. § 65.01” or “point to any other conduct of [RAM ] that was prohibited by, or
made actionable pursuant to, Minn. Stat. § 65A. 01.” For these reasons, the district court

1 For certain policies, the statutory minimum requirements for an insurance policy covering
peril of fire apply to other perils. See Leamington Co. v. Nonprofits’ Ins. Ass’n , 615
N.W.2d 349, 353 n.3 (Minn. 2000). The par ties agree that the required suit-limitation
period applies to the policy here, which covers wind and hail loss.
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concluded, “the requirements of Minn. Stat . § 45.028 ha[d] not been satisfied” and,
therefore, “[s]ervice of process was not completed.”
Wandersees argue the district court improperly dismissed their complaint for failing
to meet the substitute service requirements b ecause it “include[d] multiple legal theories
under Minn. Stat. Ch. 65A, and hypothetical, future facts are permissible under the Rules
of Civil Procedure.” This argument misunderstands the requirements for substitute service
pursuant to section 45.028 and application of Minnesota’s notice-pleading standard.
First, substitute service pursuant to sec tion 45.028 requires the complaint to allege
the defendant “engage[d] in conduct prohibited or made actionable” by section 65A. Minn.
Stat. § 45.028, subd. 1. The plain language of the statute, therefore, requires an allegation
that the defendant enga ged in a prohibited act or behavi or for substitute service to be
available. Allstate, 590 N.W.2d at 822. Wandersees ’ complaint alleged that RAM had
“not nominated an appraiser” and “[r]efusal to nominate an appraiser is contrary to the
policy and Minn. Stat. § 65.01, subd. 3.” Wandersees’ complaint also requested
declaratory judgment that Wandersees were entitled to “an appraisal for the entire amount
of all loss or damage” and “full coverage of all loss or damage.”
Wandersees served the complaint on th e commissioner the day after demanding
appraisal. As the district court noted, as of that date, RAM had not “engage[d] in conduct
prohibited or made actionable” by section 65 A.01, subd. 3, because 19 days remained
within which it may comply with the statut ory obligation. Ultimately, RAM did timely
appoint an appraiser. This allegation of a violation of section 65A.02, subdivision 3,
therefore fails. Wandersees’ request for decl aratory judgment similarly fails because it
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simply requests a declaration of coverage but makes no allegation that RAM had engaged
in any prohibited or actionable conduct.
Second, Wandersees are correct that “Minnesota is a notice-pleading state.” Halva
v. Minn. State Colls. & Univs., 953 N.W.2d 496, 502 (Minn. 2021) (quoting Walsh v. U.S.
Bank, N.A., 851 N.W.2d 598, 604-05 (Minn. 2014)). However, this undisputed axiom does
not answer the question before us. The no tice-pleading standard addresses whether a
pleading sufficiently “sets forth a claim for relief . . . showing that the pleader is entitled to
relief.” Walsh, 851 N.W.2d at 601 (quoting Minn. R. Civ. P. 8.01). The district court
properly dismissed Wandersees’ complaint for insufficient service of process because the
complaint did not identify “condu ct prohibited or made ac tionable by” section 65A to
authorize substitute service pursuant to section 45.028, not failure to state a claim. Whether
the complaint sufficiently stated a claim is immaterial because Wandersees never effected
service.
In sum, Wandersees’ complaint did not meet the statutory requirements for
substitute service and therefore the district court properly dismissed the complaint without
prejudice. Wessin v. Archives Corp. , 592 N.W.2d 460, 467 (Minn. 1999) (“[T]he law
favors cases being decided on their true merits, and thus a dismissal without prejudice may
be preferable to a dismissal with prejudice where the dismissal is based on failure to follow
pleading requirements.” (quotation omitted)).

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II. Second Order: The di strict court properly dismissed Wandersees’ “amended”
complaint.

The district court dismissed the second complaint as time-barred because “[s]ervice
on this matter was completed . . . over six months beyond the two-year window to bring a
suit.”
Appellate courts review a rule 12.02(e) dismissal for failure to timely commence an
action de novo, “look[ing] only to the facts alleged in the complaint, accepting those facts
as true.” Hansen v. U.S. Bank Nat’l Ass’n, 934 N.W.2d 319, 325 (Minn. 2019). When the
dismissal is based on a statute of limitations, “a motion to dismiss should be granted only
when it is clear from the stated allegations in the complaint that th e statute of limitations
has run.” Id. at 326.
Wandersees argue the “amended” complaint was not time-barred because it relates
back to the defectively served complaint.2
A claim or defense which may otherwise be time-barred may be pleaded in an
amended pleading if it relates back to “the conduct, transaction, or occurrence set forth or
attempted to be set forth in the original pl eading.” Minn. R. Ci v. P. 15.03. However,
relation back “does not allow the creation of a lawsuit when action has not been properly
commenced in the first instance.” Van Slooten v. Estate of Schneider-Janzen, 623 N.W.2d
269, 271 (Minn. App. 2001) (citing Regie de l’assurance Auto. du Quebec v. Jensen, 399

2 Wandersees also argue that the “amende d” complaint was not time-barred because
judgment on the first order was not entered a nd thus “the file remained active[] [w]ith
continuation of the case but a dismissed pleading.” The argument lacks merit. Service was
not properly effected, therefor e there was no case to “remain active.” Minn. R. Civ. P.
3.01.
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N.W.2d 85, 92 (Minn. 1987)). “ If the original notice is invalid , it cannot be validated by
later amendment after the expiration of the statutory period.” Greenly v. Indep. Sch. Dist.
No. 316, 395 N.W.2d 86, 90 (Minn. App. 1986).
We have already concluded that the dist rict court, by its first order, properly
dismissed the complaint for insufficient service of process. Wandersees do not dispute that
the “amended” complaint would be time- barred if it does not relate back. Van Slooten
compels our conclusion that the “amended” complaint cannot relate back to a lawsuit that
was never properly commenced. The distri ct court properly di smissed Wandersees’
“amended” complaint.
Affirmed.