Opinion
No. A06-1560.
Filed: June 19, 2007
Appeal from the District Court, Hennepin County, File No. 27-CV-04-015856.
Steven P. Aggergaard, U.S. District Court, Paul, MN.
Michelle K. Dove, Dorsey Whitney, L.L.P., Minneapolis, MN, (for respondent).
Douglas A. Meyer, Norwood, MN, (pro se appellant).
Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Willis, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006).
UNPUBLISHED OPINION
Appellant Douglas A. Meyer challenges the district court's grant of summary judgment in this action for collection of money due under a security agreement and replevin, arguing that the court lacked personal jurisdiction over him and that the district court erred by granting summary judgment and dismissing his counterclaim for false imprisonment. Because appellant has failed to (1) rebut by clear and convincing evidence the affidavit of personal service on him that is the basis for personal jurisdiction; (2) raise a genuine issue of material fact in opposition to summary judgment; and (3) present a prima facie case of false imprisonment, we affirm.
DECISION
Personal Jurisdiction
Whether a court has personal jurisdiction over a party is a question of law reviewed de novo by this court. Ryan Contracting, Inc. v. JAG Investments, Inc., 634 N.W.2d 176, 181 (Minn. 2001). A civil action against an individual is commenced by personal service or by leaving a copy of the summons with a person of suitable age at the individual's usual place of abode. Minn. R. Civ. P. 3.01(a), 4.03(a). Service of process must be made in accordance with the rule; if not, service is ineffective and the court has no jurisdiction over the individual. Smith v. Flotterud, 716 N.W.2d 378, 381 (Minn.App. 2006), review denied (Minn. Sept. 27, 2006). The purpose of the requirement is to ensure that interested parties know that an action is pending. Id. at 382.
Respondent submitted an affidavit that appellant had been personally served with the summons. Generally, such an affidavit is "strong evidence of proper service," unless rebutted by "production of clear and convincing evidence" to the contrary. Peterson v. Eishen, 495 N.W.2d 223, 226 (Minn.App. 1993), aff'd, 512 N.W.2d 338 (Minn. 1994). Appellant argues that the address listed on the affidavit of personal service, while similar to a former residence, is incorrect because it refers to the wrong suburban city. But the affidavit here states that appellant was personally served; the place of service is critical only when substitute service is made on a person of suitable age and discretion at the individual's usual place of abode.
Appellant has not offered clear and convincing evidence sufficient to rebut the affidavit of personal service, other than a mere averment that he was not served. We therefore conclude that the district court did have personal jurisdiction over appellant.
Summary Judgment
We review the district court's grant of summary judgment to determine whether there are any genuine issues of material fact and whether the district court erred in its application of the law. Minn. R. Civ. P. 56.03. We consider the evidence in the light most favorable to the party against whom summary judgment is granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). If the nonmoving party has the burden of proof on an element essential to the nonmoving party's case, the nonmoving party must make a showing sufficient to establish the essential element. Schroeder v. St. Louis County, 708 N.W.2d 497, 507 (Minn. 2006).
In the case of a contract, "[w]here the intention of the parties can be determined wholly from the writing, the construction of the instrument is a question of law for the court to resolve." Wolfson v. City of St. Paul, 535 N.W.2d 384, 386 (Minn.App. 1995), review denied (Minn. Sept. 28, 1995).
There is no ambiguity in this contract. The contract sets out the principal sum, and the number (42) and amount ($1,450.58) of monthly payments. The contract states that failure to make a payment when it is due constitutes default. In the event of default, respondent could declare the loan immediately due and payable in full, without presentment, notice, or protest. Further, respondent was permitted to charge, and appellant agreed to pay, all legal fees and expenses incurred as a result of default. According to appellant's uncontested admissions, he agreed to these loan terms and gave a security interest in the collateral; he defaulted; he failed to pay despite repeated demands; he was served with the order for replevin; and he admitted that the sheriff recovered the collateral. Respondent submitted an affidavit that the outstanding balance of the loan ($22,756.52) and the amount recovered upon sale of the collateral ($18,000), resulted in a default balance of $4,756.52. Respondent also submitted proof of the attorney fees and costs incurred in collection under the contract and provided documentation for those amounts. Although appellant denies that these amounts are correct, he has submitted no proof, other than his bare assertions, to the contrary.
A party must resist summary judgment by offering more than "mere averments." DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997). Appellant has done no more than assert that respondent's figures are incorrect; we therefore conclude that the district court did not err by granting summary judgment.
Counterclaim
Although it is not entirely clear from the pleadings that appellant asserted a counterclaim, he has failed in any event to establish a prima facie case of false imprisonment. False imprisonment occurs when a person is unlawfully restrained without proper legal authority. Perkins v. County of St. Louis, 397 N.W.2d 405, 408 (Minn.App. 1986), review denied (Minn. Jan. 16, 1987). Appellant was detained after the district court issued an order for contempt because he failed to appear; the officers who arrested appellant had legal authority to make that arrest. Further, respondent did not have the power to release appellant once he was arrested; that power was vested in the district court. See Minn. Stat. § 588.04-06 (2004). The district court did not err by dismissing appellant's counterclaim.
Affirmed.