John Puetz, Appellant,

This opinion is nonprecedential except as provided by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
A24-1328

John Puetz,
Appellant,

vs.

Vernon Sechriest, II,
Respondent.

Filed April 28, 2025
Affirmed
Halbrooks, Judge*

Hennepin County District Court
File No. 27-CV-24-144

Brian K. Lewis, Francis White Law, PLLC, Woodbury, Minnesota (for appellant)

Jennifer S. Bovitz, Bassford Remele, Minneapolis, Minnesota (for respondent)

Considered and decided by Wheelock, Presiding Judge; Bjorkman, Judge; and
Halbrooks, Judge.
NONPRECEDENTIAL OPINION
HALBROOKS, Judge
On appeal from the dismissal of his medical -malpractice claim, appellant argues
that the district court erred in determining that his summons and complaint were not
properly served on respondent within the applicable statute-of -limitations period. He

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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contends that respondent waived service of process under Minn. R. Civ. P. 4.05 by sending
an email acknowledging receipt of the summons and complaint and that, even if service of
process was ineffective, the statute of limitations was tolled during the pendency of another
action appellant commenced in federal court. Because service of process was not effective
and the applicable statute of limitations was not tolled by the federal action, we affirm.
FACTS
On January 2, 2020, respondent Dr. Vernon Sechriest, II, performed a total knee
replacement on appellant John Puetz. At the time of the surgery, Dr. Sechriest served as
the Chief of Orthopedics at the Veterans Administration Medical Center (VA) in
Minneapolis. Puetz claims that, as a result of Dr. Sechriest’s alleged malpractice, he
suffered a tibial facture and plantar fasciitis. According to Puetz, he discovered these
injuries approximately ten days after the surgery was performed. After his immediate
postoperative recovery, Puetz declined to utilize the VA because he “does not believe their
services are medically adequate and/or staffed appropriately.”
In November 2022, Puetz brought an action against the United States under the
Federal Tort Claims Act, alleging medical negligence by the VA. The federal district court
dismissed Puetz’s action for lack of subject- matter jurisdiction and , in April 2024, the
Eighth Circuit Court of Appeals affirmed. Puetz v. United States, No. 23-2710, 2024 WL
1739442, at *1 (8th Cir. Apr. 23, 2024).
On January 2, 2024, in an effort to commence this action, Puetz mailed a summons
and complaint to Dr. Sechriest at his current business in California. The complaint asserted
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a medical-malpractice claim against Dr. Sechriest in connection with the knee surgery, and
sought “[c]ompensatory damages . . . in the amount of $10,000,000.”
Puetz’s complaint was not accompanied by a waiver-of-service-of-process form for
Dr. Sechriest to sign and return as required by Minn. R. Civ. P. 4.05(a). And Dr. Sechriest
never signed and returned a form waiving his right to be served with process. But after
receiving the complaint, Dr. Sechriest sent an email to Puetz’s counsel on January 9, 2024,
acknowledging that he received the “letter of summons” and stating that he “appreciate[d]
the importance” of responding to the complaint.
Dr. Sechriest moved to dismiss Puetz’s complaint under Minn. R. Civ. P. 12.02(d)-
(e), because (1) Puetz failed to effectively serve Dr. Sechriest with process and (2) Puetz’s
failure to effectively serve Dr. Sechriest results in Puetz’s claim being barred by the four-
year statute of limitations applicable to medical-malpractice claims. The district court
granted the motion, determining that Puetz “did not strictly comply with [r]ule 4.05”
because the summons and complaint that Puetz sent Dr. Sechriest “did not include a written
notice and request that [Dr. Sechriest] waive personal service and stating the date the notice
and request were sent.” As such, the district court concluded that Puetz failed to effectively
serve Dr. Sechriest with process. The district court also determined that, “pursuant to the
single act exception to the termination-of- treatment rule,” Puetz’s claim “accrued on
January 2, 2020, or within ‘several days’ thereafter.” As a result, the district court
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determined that Puetz’s claim is now time-barred under the four-year statute of limitations
applicable to medical-malpractice claims.1 This appeal follows.
DECISION
I.
Puetz challenges the dismissal of his claim for ineffective service of process.
Whether service of process was effective and a district court has personal jurisdiction over
a defendant are questions of law that we review de novo. Shamrock Dev., Inc. v. Smith,
754 N.W.2d 377, 382 (Minn. 2008).
Proper service of process is a fundamental requirement of commencing a lawsuit.
Doerr v. Warner, 76 N.W.2d 505, 511 (Minn. 1956). Unless a plaintiff adequately serves
a defendant under rule 4 of the Minnesota Rules of Civil Procedure, a district court cannot
exercise personal jurisdiction over the defendant. Wick v. Wick, 670 N.W.2d 599, 604
(Minn. App. 2003); see McCullough & Sons, Inc. v. City of Vadnais Heights, 883 N.W.2d
580, 590 (Minn. 2016) (“[S]ervice of process is the means by which a court obtains
personal jurisdiction over a defendant . . . .”).
Service may be made in person, Minn. R. Civ. P. 4.03, or by publication, Minn. R.
Civ. P. 4.04. Alternatively, a plaintiff may request that personal service of a summons be
waived. Minn. R. Civ. P. 4.05. Under rule 4.05, the notice and request to waive personal
service must:

1 The district court also granted Dr. Sechriest’s separate motion for an order striking Puetz’s
complaint, concluding that, “in violation of Minnesota law, the [c]omplaint alleges
damages in the amount of $10,000,000.” That issue is not before us on appeal.
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(1) be in writing and be addressed:
(A) to the individual defendant; or
(B) for a defendant subject to service under Rule
4.03(b)-(e) to the agent authorized to receive service;
(2) be accompanied by a copy of the complaint, two
copies of Form 22B [2] or a substantially similar form, and a
prepaid means for returning a signed copy of the form;
(3) inform a defendant, using Form 22B or a
substantially similar form, of the consequences of waiving and
not waiving service;
(4) state the date when the request is sent;
(5) give a defendant 30 days after the request was sent—
or 60 days if sent to a defendant outside the United States—to
return the waiver; and
(6) be sent by first-class mail or other reliable means.

Minn. R. Civ. P. 4.05(a). If a plaintiff files a waiver of service signed by the defendant,
proof of service is not required, and the matter proceeds as if process had been served on
the date the waiver was signed. Minn. R. Civ. P. 4.05(d).3
When a waiver is requested by mailing the complaint, it is often known by the
common, but erroneous, term “service by mail.” See Minn. R. Civ. P. 2018 advisory
comm. cmt. (stating that, prior to the 2018 amendments, rule 4.05 “created the illusion that
valid service could be accomplished by U.S. Mail”). Indeed, caselaw construing rule 4.05
prior to its 2018 amendment referred to the procedure contemplated by the rule as “service
by mail.” See, e.g., Melillo v. Heitland, 880 N.W.2d 862, 864 (Minn. 2016) (stating that
rule 4.05 “covers ‘Service by Mail’”); Kokosh v. $4657.00 U.S. Currency, 898 N.W.2d

2 “Form 22B” is part of the appendix to the Minnesota Rules of Civil Procedure and is
entitled “Waiver of Service of Summons.” Minn. R. Civ. P., Form 22B.
3 In 2018, rule 4.05 was “completely revamped to replace the somewhat unreliable
procedure relying on the ‘Acknowledgement of Service’ form with a more straightforward
procedure . . . relying on a ‘Waiver of Service’ form.” Minn. R. Civ. P. 4.05 2018 advisory
comm. cmt.
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284, 288 (Minn. App. 2017) (referring to service of process under rule 4.05 as “service by
mail”), rev. denied (Minn. Aug. 8, 2017). But in Melillo, the supreme court considered
whether service of process was accomplished after the plaintiff attempted to complete
service of process on the defendant by sending the defendant certified mail, which included
a delivery receipt. 880 N.W.2d at 863. The supreme court indicated that the plaintiff did
not satisfy the requirements of rule 4.05 because, “[m]ost importantly,” the defendant “did
not receive or return the required acknowledgement of service.” Id. at 864. The supreme
court then distinguished personal service— which is governed by rule 4.03—and waiving
service by mail—which is governed by rule 4.05. Id. The court concluded that service of
process by certified mail is insufficient under either rule, and explained, “[t]o state the
obvious: service by mail is not personal service, and personal service is not service by
mail.” Id.
Puetz agrees “that Melillo is instructive” and “concedes that, had [Dr. Sechriest] not
emailed an acknowledgment . . . , stating specifically that he understood he had [21] days
to respond, and acknowledging receipt of the summons, [ Puetz] would have no legs to
stand on in contesting defective service.” But Puetz asserts that Melillo is distinguishable
from this case because, unlike in Melillo, where the “responding party never received,
much less acknowledged, service,” Dr. Sechriest here “cured any potential defects” by
emailing Puetz ’s attorney, acknowledging receipt of the summons. He contends that
because Dr. Sechriest emailed Puetz’s attorney acknowledging receipt of the summons
substantial compliance with the rules of civil procedure was established. And Puetz argues
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that, because “[s]ubstantial compliance with the rules is the minimum” requirement,
service of process was effective.
We are not persuaded. Caselaw addressing rule 4.05 consistently states that strict
compliance with the rule is required. See, e.g., Kokosh, 898 N.W.2d at 288 (stating that
service pursuant to rule 4.05 “requires strict compliance and is not effective if the
acknowledgment is not signed and returned”); Nieszner v. St. Paul Sch. Dist. No. 625, 643
N.W.2d 645, 650 (Minn. App. 2002) (acknowledging the “general rule that service of
process must strictly comply with rule 4 of the rules of civil procedure);
Coons v. St. Paul Cos., 486 N.W.2d 771, 776 (Minn. App. 1992) (“Rule 4.05 requires strict
compliance to procedure in order to perfect service.”). And in the absence of a signed and
returned acknowledgment, proof of actual receipt and actual notice of the lawsuit is not
sufficient to establish effective service. See, e.g., Coons, 486 N.W.2d at 775-76. Although
these cases address the version of rule 4.05 in effect before the 2018 amendment, Puetz
cites no caselaw indicating that strict compliance with rule 4.05 is no longer required.
Here, it is undisputed that Puetz sent the summons and complaint by first-class mail
as required by rule 4.05(a)(6). But it is also undisputed that Puetz failed to include (1) a
written notice and request that Dr. Sechriest waive personal service, containing the date
when the request was sent, as required by rule 4.05(a)(1), (4); (2) two copies of Form 22B,
or a substantially similar form, and a prepaid means for returning a signed copy of the form,
as required by rule 4.05(a)(2); (3) a copy of Form 22B, or substantially similar form,
informing Dr. Sechriest of the consequences of waiving and not waiving service, as
required by rule 4.05(a)(3); and (4) notice to Dr. Sechriest that he had 30 days to return the
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waiver after the request was sent, as required by rule 4.05(a)(5). Moreover, it is undisputed
that Dr. Sechriest never signed and returned the requisite waiver-of- service form. This
undisputed record shows that strict compliance with rule 4.05(a) was not established. In
fact, the undisputed record demonstrates that substantial compliance with rule 4.05(a) was
not established. Thus, the district court did not err in determining that Puetz failed to
effectively serve Dr. Sechriest with process.
II.
Puetz also challenges the district court’s decision that his claim is barred by the
applicable statute of limitations. A medical-malpractice claim must be commenced within
four years from the date the cause of action accrued. Minn. Stat. § 541.076(b) (2024). In
Minnesota, actions are commenced through service of the summons and complaint. Minn.
R. Civ. P. 3.01. A claim brought outside of the statute of limitations is barred. See
Pederson v. Am. Lutheran Church, 404 N.W.2d 887, 889 (Minn. App. 1987) (holding that
dismissal on the basis of the statute of limitations is proper if it is clear from the face of the
complaint that the statute of limitations has run), rev. denied (Minn. June 30, 1987). “[T]he
construction and applicability of a statute of limitation or repose is a question of law subject
to de novo review.” State Farm. Fire & Cas. v. Aquila Inc., 718 N.W.2d 879, 883 (Minn.
2006).
Generally, medical-malpractice actions in Minnesota accrue when “the physician’s
treatment for a particular condition ceases”; this is known as the termination-of-treatment
rule. Doyle v. Kuch, 611 N.W.2d 28, 31 (Minn. App. 2000) (quotation omitted)). There is
an exception, however, “where there is a single act of allegedly negligent conduct.” Id.
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This exception applies only “when the alleged tort consists of (1) a single act; (2) which is
complete at a precise time; (3) which no continued course of treatment can either cure or
relieve; and (4) where the plaintiff is actually aware of the facts upon which the claim is
based.” Id. When the single-act exception applies, “the statute of limitations begins to run
at the time the plaintiff sustains damage from the act.” Id.
Here, Puetz’s claim relates to alleged malpractice that occurred on January 2, 2020.
Puetz acknowledges that, after the alleged malpractice occurred, no continued treatment
could cure or relieve it, and he admits that he was aware of his injuries several days after
the surgery. Indeed, Puetz’s complaint acknowledges that his “cause of action arose on
January 2, 2020.” Based on these facts, the district court determined that the single-act
exception applies and, pursuant to this rule, Puetz’s claim “accrued on January 2, 2020, or
within ‘several days’ thereafter.” The district court then concluded that, because Puetz
“did not serve [Dr. Sechriest] with process by January 2, 2024, or ‘several days’ thereafter,”
Puetz’s claim is now time-barred.
Puetz does not challenge the district court’s determination that the single-act
exception applies, or that his cause of action accrued on January 2, 2020, or within several
days thereafter. Instead, he contends that the district court erred in determining that his
action was time-barred because the “statute of limitations has been tolled through the filing
and litigation of the Federal Tort Claims Act lawsuit that was pending before the United
States Court of Appeals for the Eighth Circuit.”
4

4 The district court acknowledged Puetz’s argument “that the limitations period applicable
to his claim against [ Dr. Sechriest] was and remains tolled during the pendency of his
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Puetz’s argument is unavailing. There is caselaw stating that “[c]ommencement of
an action tolls the statute of limitation during the action’s pendency so long as the action
is prosecuted to final judgment.” Sherek v. Indep. Sch. Dist. No. 699, 464 N.W.2d 582,
584 (Minn. App. 1990), rev. denied (Minn. Feb. 20, 1991); see DeMars v. Robinson King
Floors, 256 N.W.2d 501, 505 (Minn. 1977) (stating that the commencement of an action
arrests the running of the applicable statute of limitations); see also Holmgren v. Isaackson, 116 N.W. 205, 206 (Minn. 1908) (stating that the statute-of-limitations period is suspended
during the commencement of an action so long as the action is “prosecuted to final
judgment”). But “if a claim is dismissed without a determination on the merits, the result
is the same as if it had never been filed and the statute of limitations had never been tolled.”
DeMars, 256 N.W.2d at 505.
Here, Puetz filed an action in federal district court under the Federal Tort Claims
Act on November 9, 2022. See Puetz v. United States, No. 22-CV -02870, 2023 WL
4186574, at *3 (D. Minn. June 26, 2023) , aff’d (8th Cir. Apr. 23, 2024). But that action
was dismissed without prejudice based on lack of subject- matter jurisdiction, and the
Eighth Circuit Court of Appeals affirmed. Puetz, 2024 WL 1739442, at *2. Dismissal for
lack of subject-matter jurisdiction is not a determination on the merits.

separate federal lawsuit against the United States.” But the court concluded that Puetz’s
claim against Dr. Sechriest is time-barred without addressing this argument. Because
Puetz’s argument presents a question of law that we review de novo, it makes no difference
to our analysis that the district court did not address Puetz ’s tolling argument.
See Woehrle v. City of Mankato, 647 N.W.2d 549, 551 n.2 (Minn. App. 2002) (reviewing
legal question not addressed by the district court because legal questions are reviewed de
novo), rev. denied (Minn. Sept. 17, 2002).
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State Bd. Of Med. Exam’rs v. Olson, 206 N.W.2d 12, 18 (Minn. 1973) (“If the court lacks
jurisdiction over the subject matter, it never reaches the merits of the case.”).
Because Puetz’s federal court action was dismissed without a determination on the
merits, the federal court action was never considered to have been filed, and the statute-of-
limitations period was never considered to be tolled. See DeMars, 256 N.W.2d at 505
(stating that “if a claim is dismissed without a determination on the merits, the result is the
same as if it had never been filed and the statute of limitations had never been tolled”
(emphasis added)); see also Holmgren, 116 N.W. at 206. As such, Puetz’s claim is barred
by the applicable statute of limitations. We, therefore, conclude that the district court did
not err by granting Dr. Sechriest’s motion to dismiss.
Affirmed.