VH v. Estate of Birnbaum

529 N.W.2d 462, 1995 WL 141739
CourtCourt of Appeals of Minnesota
DecidedMay 31, 1995
DocketC0-94-1952
StatusPublished
Cited by1 cases

This text of 529 N.W.2d 462 (VH v. Estate of Birnbaum) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
VH v. Estate of Birnbaum, 529 N.W.2d 462, 1995 WL 141739 (Mich. Ct. App. 1995).

Opinion

529 N.W.2d 462 (1995)

V.H., Appellant,
v.
The ESTATE OF Bernard F. BIRNBAUM, c/o Personal Representative Cleo Aufderhaar, Respondent.

No. C0-94-1952.

Court of Appeals of Minnesota.

April 4, 1995.
Review Granted May 31, 1995.

*463 James G. Birnbaum, Michael J. Colgan, Davis, Birnbaum, Marcou, Seymour & Colgan, La Crosse, WI, for appellant.

Brian N. Johnson, Sheila T. Kerwin, Popham, Haik, Schnobrich & Kaufman, Ltd., Minneapolis, for respondent.

Considered and decided by KALITOWSKI, P.J., SHORT and MULALLY,[*] JJ.

OPINION

KALITOWSKI, Judge.

V.H. sued the estate of her deceased father for damages arising from alleged sexual abuse occurring when she was a minor child. The district court dismissed the action for lack of personal jurisdiction, concluding that under Minnesota's survival statute V.H.'s cause of action was against the decedent's personal representative, who did not have sufficient contacts with Minnesota to establish personal jurisdiction.

FACTS

Appellant, V.H., is a resident of Minnesota. In her complaint, she alleges that her father, Bernard Birnbaum, sexually assaulted her on at least two occasions between 1958 and 1960, when she was a minor. These incidents allegedly took place in Minnesota, where V.H. resided with Birnbaum. By affidavit, V.H. states Birnbaum resided in Minnesota from 1951 to 1962, and was a party in a divorce action in Minnesota in 1962.

V.H. alleges that she repressed her memories of the sexual abuse until approximately five-and-a-half years before she commenced this lawsuit. She further alleges that she incurred medical expenses and suffered emotional distress, embarrassment, loss of self-esteem, disgrace, humiliation, and loss of enjoyment of life as a result of her father's conduct, and seeks an undetermined amount of damages.

Because Birnbaum was deceased at the time V.H. filed her complaint, service was made against his estate upon his personal representative, Cleo Aufderhaar. Aufderhaar was appointed Birnbaum's personal representative for probate proceedings in Texas and Wisconsin. Aufderhaar is a resident of Texas, where she has resided for the past 44 years (except for 2 years when she lived in Iowa). By affidavit, she asserts that she has never resided, had property, had a telephone or bank account, worked, or conducted business in Minnesota. She also asserts that she *464 has committed no tortious acts within Minnesota and visited Minnesota only briefly on four occasions for nonbusiness reasons. Aufderhaar also states that Birnbaum resided in Texas prior to his death and did not have property or business in Minnesota.

Respondent moved to dismiss for lack of personal jurisdiction and parental immunity. After a hearing, the district court dismissed the action because Birnbaum's personal representative did not have sufficient contacts with Minnesota to establish jurisdiction. V.H. argues that the district court erred in considering the personal representative's contacts with Minnesota, rather than Birnbaum's, in determining the application of Minnesota's long-arm statute.

ISSUES

1. Do statutory grounds exist for asserting personal jurisdiction over Birnbaum's personal representative?

2. Do sufficient minimum contacts exist to establish personal jurisdiction?

ANALYSIS

The parties agree that under Minnesota's survival statute V.H.'s lawsuit survives Birnbaum's death and may be brought against Birnbaum's personal representative, Cleo Aufderhaar. See Minn.Stat. § 573.01 (1992); Midway Nat'l Bank of St. Paul v. Estate of Bollmeier, 504 N.W.2d 59, 63 (Minn.App.1993) ("A cause of action against a decedent survives as against the personal representative of his estate."). They dispute whether Minnesota can assert personal jurisdiction over Aufderhaar, a nonresident, who is being sued in her capacity as Birnbaum's personal representative. The determination of whether personal jurisdiction exists is a question of law, subject to de novo review on appeal. Stanek v. A.P.I., Inc., 474 N.W.2d 829, 832 (Minn.App.1991), pet. for rev. denied (Minn. Oct. 31, 1991), cert. denied, 503 U.S. 977, 112 S.Ct. 1603, 118 L.Ed.2d 316 (1992).

I.

The district court determined that it was appropriate to look at Aufderhaar's Minnesota contacts in determining whether jurisdiction exists. We disagree. We believe the proper focus is on Birnbaum's conduct.

Minnesota's long-arm statute reads:

As to a cause of action arising from any acts enumerated in this subdivision, a court of this state with jurisdiction over the subject matter may exercise personal jurisdiction over * * * any nonresident individual, or the individual's personal representative, in the same manner as if * * * the individual were a resident of this state. This section applies if * * * [the] nonresident individual:
* * * * * *
(c) Commits any act in Minnesota causing injury or property damage
* * * * * *

Minn.Stat. § 543.19, subd. 1 (1994) (emphasis added). Under the plain language of the statute, the nonresident's actions determine whether jurisdiction exists.

Respondent cites two cases for the proposition that jurisdictional analysis shifts to the personal representative's forum contacts in actions against a nonresident decedent's estate. Because these cases address the validity of service of process on a personal representative and not the reach of Minnesota's long-arm statute they are not controlling. See Midway Nat'l Bank of St. Paul, 504 N.W.2d at 64 (judgment not void for lack of service on personal representative because representative submitted to jurisdiction); Wood v. Martin, 328 N.W.2d 723, 726 (Minn. 1983) (service of process ineffective where original service via nonresident motorist statute was made on deceased person and no service on personal representative was effected before statute of limitations ran).

The fact that V.H.'s action requires application of Minnesota's survival statute should not affect the considerations underlying the long-arm statute. The Minnesota Supreme Court has emphasized that the legislature intended the long-arm statute to extend jurisdiction to the limits imposed by the federal constitution. Valspar Corp. v. Lukken Color Corp., 495 N.W.2d 408, 410 (Minn.1992). It thus is appropriate to read the statute as including within its reach the personal representative *465 of a deceased individual. See Hayden v. Wheeler, 33 Ill.2d 110, 210 N.E.2d 495, 497 (1965) (long-arm statute's use of term "personal representative" was intended to include personal representatives of deceased nonresidents).

We conclude that the long-arm statute allows for jurisdiction over a deceased nonresident's personal representative if the nonresident would have been subject to jurisdiction if he or she were alive. Courts in other jurisdictions have reached the same conclusion under similar long-arm statutes. In Crosson v. Conlee,

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Bluebook (online)
529 N.W.2d 462, 1995 WL 141739, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vh-v-estate-of-birnbaum-minnctapp-1995.