Thiele v. Stich, 425 N.W.2d 580 (Minn. 1988). · Go Syfert
Thiele v. Stich, 425 N.W.2d 580 (Minn. 1988). Cases Citing This Book View Copy Cite
Quick Summary

An appellate court must generally consider only the issues presented to and considered by the trial court and may not base its decision on matters outside the record.

A plaintiff filed a legal malpractice action against an attorney, but the defendant moved for summary judgment alleging the claim was barred by the statute of limitations. The trial court granted summary judgment, and the court of appeals reversed by determining the cause of action accrued on a different date than argued below. The Supreme Court of Minnesota held that a reviewing court must generally consider only those issues presented and considered by the trial court and may not base its decision on matters outside the record. Because the alternative accrual date was an issue raised for the first time on appeal and relied on facts not produced in the trial court, the appellate court erred in its consideration.

1,236 citation events (965 in the last 25 years) across 7 distinct courts.
Strongest positive: Kaylen Stiever v. Lake County (minnctapp, 2026-03-16)
Treatment trajectory · 1988 → 2026 · click a year to view as-of
1988 2007 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Kaylen Stiever v. Lake County
Minn. Ct. App. · 2026 · signal: see · quote attribution · 1 verbatim quote · confidence high
a reviewing court must generally consider only those issues that the record shows were presented and considered by the district court in deciding the matter before it.
discussed Cited as authority (verbatim quote) State of Minnesota v. Justin Bradley Camp
Minn. Ct. App. · 2025 · signal: see · quote attribution · 1 verbatim quote · confidence high
an appellate court may not base its decision on matters outside the record on appeal, and may not consider matters not produced and received in evidence below.
discussed Cited as authority (verbatim quote) SECURA Insurance Company, as subrogee of Lance Goettl d/b/a TLG Farm Partnership v. Deere & Company, ... (2×) also: Cited "see"
unknown court · 2024 · signal: see · quote attribution · 1 verbatim quote · confidence high
an appellate court may not base its decision on matters outside the record on appeal, and may not consider matters not produced and received in evidence below
discussed Cited as authority (verbatim quote) In the Matter of the Welfare of the Children of: V. R. R. and M. A. H., Parents, Commissioner of Human Services, Legal ...
Minn. Ct. App. · 2024 · quote attribution · 1 verbatim quote · confidence high
a party may not obtain review by raising the same general issue litigated below but under a different theory.
discussed Cited as authority (verbatim quote) Chase Rovere v. Clifford Ling (2×) also: Cited "see"
Minn. Ct. App. · 2024 · signal: see · quote attribution · 1 verbatim quote · confidence high
nor may a party obtain 7 review by raising the same general issue litigated below but under a different theory.
discussed Cited as authority (verbatim quote) City of Golden Valley v. Wiebesick
Minn. · 2017 · signal: see · quote attribution · 1 verbatim quote · confidence high
an appellate court ... may not consider matters not produced and received in evidence below.
discussed Cited as authority (verbatim quote) State of Minnesota v. Justin Thomas Keodouangdy
Minn. Ct. App. · 2016 · quote attribution · 1 verbatim quote · confidence high
an appellate court may not base its decision on matters outside the record on appeal, and may not consider matters not produced and received in evidence below.
discussed Cited as authority (verbatim quote) In re the Marriage of: Christopher John Anton v. Romona L. Sparks, f/k/a Romona L. Anton (2×) also: Cited as authority (rule)
Minn. Ct. App. · 2016 · quote attribution · 1 verbatim quote · confidence high
a reviewing court must generally consider only those issues that the record shows were presented and considered by the trial court in deciding the matter before it.
discussed Cited as authority (verbatim quote) In re the Marriage of: Dontrell Valerie Thornton v. Herbert Thornton, Jr.
Minn. Ct. App. · 2016 · quote attribution · 1 verbatim quote · confidence high
a reviewing court must generally consider only those issues that the record shows were presented and considered by the district court in deciding the matter before it.
discussed Cited as authority (verbatim quote) Laura M. Engelhart, n/k/a Laura Hoss v. Robert J. Engelhart (2×) also: Cited "see"
Minn. Ct. App. · 2015 · signal: see · quote attribution · 1 verbatim quote · confidence high
a reviewing court must generally consider only those issues that the record shows were presented and considered by the trial court in deciding the matter before it.
discussed Cited as authority (verbatim quote) Randy Lubben v. Copart, Inc., Metro Salvage Pool, Inc. d/b/a Metro Remarketing, and Copart, Inc., Third Party v. True North Equipment Co., Third Party
Minn. Ct. App. · 2015 · signal: see · quote attribution · 1 verbatim quote · confidence high
a reviewing court must generally consider only those issues that the record shows were presented to and considered by the trial court in deciding the matter before it.
discussed Cited as authority (verbatim quote) Eugene Boisson, Relator v. Shepard Parking, LLC, Transport Leasing Contract, Inc., Department of Employment and Economic Development
Minn. Ct. App. · 2015 · quote attribution · 1 verbatim quote · confidence high
an appellate court may not base its decision on matters outside the record on appeal, and may not consider matters not produced and received in evidence below.
discussed Cited as authority (verbatim quote) Bio Wood Processing, LLC, Relator v. Rice County Board of Commissioners
Minn. Ct. App. · 2015 · signal: see · quote attribution · 1 verbatim quote · confidence high
an appellate court may not base its decision on matters 7 outside the record on appeal, and may not consider matters not produced and received in evidence below.
discussed Cited as authority (verbatim quote) In re the Matter of: Sara Marie Gasper o/b/o A. R. G., A. J. G. and A. L. G. v. Jacob Carl Gasper
Minn. Ct. App. · 2015 · signal: see · quote attribution · 1 verbatim quote · confidence high
an appellate court may not base its decision on matters outside the record on appeal, and may not consider matters not produced and received in evidence below.
discussed Cited as authority (verbatim quote) Ricky Lee McDeid v. Lucinda Jesson, Commissioner of Human Services
Minn. Ct. App. · 2015 · signal: see · quote attribution · 1 verbatim quote · confidence high
an appellate court may not base its decision on matters outside the record on appeal, and may not consider matters not produced and received in evidence below.
discussed Cited as authority (verbatim quote) In re: Guardianship of the Estate of David Tracy Platz, Jr.
Minn. Ct. App. · 2014 · quote attribution · 1 verbatim quote · confidence high
a reviewing court must generally consider only those issues that the record shows were presented and considered by the district court in deciding the matter before it
examined Cited as authority (verbatim quote) Katherina Theresa Bernhagen v. Peter John Bernhagen (3×) also: Cited "see"
Minn. Ct. App. · 2014 · quote attribution · 1 verbatim quote · confidence high
an appellate court may not base its decision on matters outside the record on appeal, and may not consider matters not produced and received in evidence below.
discussed Cited as authority (verbatim quote) Eischen v. Crystal Valley Cooperative (2×) also: Cited as authority (rule)
Minn. Ct. App. · 2013 · quote attribution · 1 verbatim quote · confidence high
an appellate court may not base its decision on matters outside the record on appeal....
discussed Cited as authority (quoted) In the Matter of the Welfare of the Child of: J. M. B. (Mth) and I. C. R. (Alleged Fth) and any Unknown Father, Parents.... (2×) also: Cited "see"
Minn. Ct. App. · 2024 · signal: see · quote attribution · 1 verbatim quote · confidence high
a reviewing court must generally consider only those issues that the record shows were presented and considered by the trial court in deciding the matter before it.
discussed Cited as authority (quoted) Joel Inskeep and Chelsea Inskeep and o/b/o L.I. and E.I. v. Sheila Moore, Harry Walk
Minn. Ct. App. · 2016 · quote attribution · 1 verbatim quote · confidence low
an appellate court may not base its decision on matters outside the record on appeal, and may not consider matters not produced and received in evidence below.
discussed Cited as authority (quoted) State of Minnesota v. E. M. L.
Minn. Ct. App. · 2015 · signal: cf. · quote attribution · 1 verbatim quote · confidence low
an appellate court may not base its decision on matters outside the record on appeal, and may not consider matters not produced and received in evidence below.
discussed Cited as authority (rule) Cynthia Pitchford as Trustee for the Heirs and Next-of-Kin of D-Angelo Pitchford v. Luke A Hunter, ...
Minn. Ct. App. · 2026 · confidence medium
Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). 17 Although the respondents did not assert that the expert reports failed to satisfy the first two requirements—they challenged only causation—we first discuss how the reports met the first two requirements to give context for the third requirement.
cited Cited as authority (rule) Rebecca A. Niebuhr v. Jacob Sieberg, Timothy Sieberg
Minn. · 2026 · confidence medium
Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).
cited Cited as authority (rule) In re the Estate of Roy Gene Barts
Minn. Ct. App. · 2026 · confidence medium
Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988).
examined Cited as authority (rule) Kidane Sante Shulbe v. Ashley Rose Henke, St. Louis County (3×) also: Cited "see"
Minn. Ct. App. · 2026 · confidence medium
Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988); see also Lewis-Miller v. Ross, 710 N.W.2d 565, 570 (Minn. 2006) (applying this aspect of Thiele in a family-law appeal).
discussed Cited as authority (rule) In Re the Marriage of: Emily Brasel Brown v. Iyulli Ben Hyyiah Brown
Minn. Ct. App. · 2026 · confidence medium
Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988); see also Smith v. Kessen, 996 N.W.2d 581 , 590 (Minn. App. 2023) (applying this aspect of Thiele to family law case), rev. denied (Minn. Jan. 31, 2024).
cited Cited as authority (rule) Shawn Paul Haren v. Nicole Frances Haren
Minn. Ct. App. · 2026 · confidence medium
Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).
discussed Cited as authority (rule) Bridgette Williams v. Minnesota State Guardian ad Litem Board (2×) also: Cited "see"
Minn. Ct. App. · 2026 · confidence medium
Thiele, 425 N.W.2d at 582 (“A reviewing court must generally consider only those issues that the record shows were presented and considered by the trial court in deciding the matter before it.” (quotation omitted)). 6
cited Cited as authority (rule) The Bank of New York Mellon fka The Bank of New York, as Trustee for the certificate holders of Cwalt, Inc. alternative ...
Minn. Ct. App. · 2026 · confidence medium
Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).
discussed Cited as authority (rule) In the Matter of the Licensing Order Issued to North Sierra Construction, LLC, and Louis Dee Sierra
Minn. Ct. App. · 2026 · confidence medium
We therefore consider only whether the commissioner made an erroneous decision with respect to the deck installation. 4 The department argues that relators waived this argument because they did not raise it at any time in the proceedings, citing Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).
cited Cited as authority (rule) Kirstin Arneson, Relator v. St Cloud Auto Sales.Com LLC, Department of Employment and Economic ...
Minn. Ct. App. · 2026 · confidence medium
Bank-Minneapolis, 805 N.W.2d 878, 883 (Minn. App. 2011) (citing Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988)).
discussed Cited as authority (rule) In the Matter of the Welfare of the Children of: L.K., Parent
Minn. · 2026 · confidence medium
L.K., 9 N.W.3d at 205–10 (Reyes, J., concurring in part and dissenting in part). 29 We granted review of this issue in appellants’ first appeal, but, as we explained, they forfeited it at oral argument and in their briefing. 46 425 N.W.2d 580, 582 (Minn. 1988)).
examined Cited as authority (rule) Classic Auto Storage, LLC v. Restoration Technologies, Inc (3×) also: Cited "see"
Minn. Ct. App. · 2026 · confidence medium
We generally consider “only those issues that the record shows were presented [to] and considered by the trial court.” Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (quotation omitted).
cited Cited as authority (rule) In the Marriage of: Jarrid Daniel DeGolier v. Jessica Jean DeGolier Baron, ...
Minn. Ct. App. · 2026 · confidence medium
Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).
cited Cited as authority (rule) Minnesota Nurses Association v. McLeod County, Relator, Public Employment Relations Board, ...
Minn. Ct. App. · 2026 · confidence medium
Generally, a party may not “obtain review by raising the same general issue litigated below but under a different theory.” Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988); see also Law Enf’t Lab.
discussed Cited as authority (rule) In the Matter of the Welfare of the Child(ren) of: T. K. H., B. M. P., G. J. S., Parents
Minn. Ct. App. · 2026 · confidence medium
Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding that we generally do not entertain arguments that were not “presented and considered by” the district court).
cited Cited as authority (rule) In the Matter of the Complaint of Troy Scheffler Regarding Representative Joshua Heintzeman and the Committee to Elect ...
Minn. Ct. App. · 2026 · confidence medium
A.D., 883 N.W.2d at 261 (citing Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988)). 8 We are not persuaded.
cited Cited as authority (rule) Grande Market Place Limited Partnership v. Yolanda Salgado, Yazmine Brown Salgado, ...
Minn. Ct. App. · 2026 · confidence medium
Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).
discussed Cited as authority (rule) Jenna Marie Benzinger v. Roger Tabet (2×) also: Cited "see"
Minn. Ct. App. · 2026 · confidence medium
Stich, 425 N.W.2d 580, 582-83 (Minn. 1988) (quotation omitted).
discussed Cited as authority (rule) In re the Estate of Oria Albert Brinkmeier
Minn. Ct. App. · 2026 · confidence medium
Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988) (“An appellate court may not base its decision on matters outside the record on appeal, and may not consider matters not produced and received in evidence below.” (emphasis added); see also Minn. R.
discussed Cited as authority (rule) Kidane Sante Shulbe v. Ashley Rose Henke (2×) also: Cited "see"
Minn. Ct. App. · 2025 · confidence medium
A. Separately Adjudicating Cases Father asserts that “the Minnesota [Sixth Judicial] District Court magistrate does not have authorit[y] over the district court judge and cannot consolidate the child support subject matter issue to be addressed under the child custody and parenting time subject matter.” “A reviewing court must generally consider only those issues that the record shows were presented and considered by the [district] court in deciding the matter before it.” Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (quotations omitted).
cited Cited as authority (rule) Kareem INC v. Property Seized by Minnesota Department of Revenue in Goodhue County, ...
Minn. Ct. App. · 2025 · confidence medium
Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).
discussed Cited as authority (rule) In the Matter of the Trust Created under Agreement By and Between Barbara A Gaughan, Settlor, and Barbara A Gaughan, ... (2×)
Minn. Ct. App. · 2025 · confidence medium
We first address Lighthouse’s position that Bjorkman’s argument is forfeited 4 under Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988), and then turn to Bjorkman’s argument that the district court abused its discretion. 4 We note that Lighthouse argues that Bjorkman’s argument is waived.
cited Cited as authority (rule) In the Matter of: Anthony Michael Webster, II On Behalf of Minor Child(ren) v. Sefaint Atkins, ...
Minn. Ct. App. · 2025 · confidence medium
Thiele v. Stich, 425 N.W.2d 580, 583 (Minn. 1988) (noting appellate courts cannot consider facts outside the record); see Minn. R.
discussed Cited as authority (rule) In the Matter of the Welfare of the Child of: B. L. and B. T., Parents., A25-0623, Court of Appeals Nonprecedential ... (2×)
unknown court · 2025 · confidence medium
We recognize that “[a] reviewing court must generally consider only those issues that the record shows were presented and considered by the trial court in deciding the matter before it.” Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (quotation omitted); see, e.g., In re Welfare of Child of R.V.M., 8 N.W.3d 680, 696 (Minn. App. 2024) (applying Thiele in a juvenile-protection context), rev. denied (Minn. July 19, 2024).
discussed Cited as authority (rule) In re Defense and Indemnification of Alexander Vladimir Brown
Minn. Ct. App. · 2025 · confidence medium
See Minnesota Internship Ctr. v. Minnesota Dep’t of Educ., 996 N.W.2d 34 , 47 (Minn. App. 2023) (“A reviewing court must generally consider only those issues that the record shows were presented [to] and considered by the [decision-maker] in deciding the 15 Minnesota Statutes section 471.44, subdivision 1, provides in relevant part: [E]very city . . . employing . . . police officers . . . shall be required to furnish legal counsel to defend any . . . police officer . . . employed by any such governmental subdivision in all actions brought against such officer to recover damages for alleged…
discussed Cited as authority (rule) Griffin v. City of Minneapolis
D. Minnesota · 2025 · confidence medium
Further, the Minnesota Supreme Court has clarified that “Rule 4.03 mandates strict compliance with its terms.” Jaeger v. Palladium Holdings, LLC, 884 N.W.2d 601 , 609–10 (Minn. 2016) (Stras, J.) (explaining that the statement regarding “substantial compliance” with Rule 4.03 in Thiele v. Stich, 425 N.W.2d 580, 584 (Minn. 1988), “was largely descriptive, not prescriptive”).
cited Cited as authority (rule) Gach v. Latvaaho
D. Neb. · 2025 · confidence medium
Thiele v. Stich, 425 N.W.2d 580, 584 (Minn. 1988); see also Eppolite v. Swenson, No. A19-1073, 2020 WL 1130360 , at *3 (Minn. Ct. App. Mar. 9, 2020).
discussed Cited as authority (rule) State of Minnesota, by its Commissioner of Transportation v. David P Williams, doing business as Bear Track ...
Minn. Ct. App. · 2025 · confidence medium
Generally, we do not consider an issue raised for the first time on appeal; “[n]or may a party obtain review by raising the same general issue litigated below but under a different theory.” Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988); accord Crowley v. Meyer, 897 N.W.2d 288, 293 (Minn. 2017) (quoting this aspect of Thiele).
discussed Cited as authority (rule) L and T Tree Services, LLC, a Minnesota limited liability company v. Daniel J. Andersen, ... (2×) also: Cited "see"
Minn. Ct. App. · 2024 · confidence medium
“A reviewing court must generally consider only those issues that the record shows were presented [to] and considered by the trial court in deciding the matter before it.” Thiele, 425 N.W.2d at 582 (quotation omitted).
Retrieving the full opinion text from the archive…
DeVee THIELE, F.K.A. DeVee Moore, Respondent,
v.
Robert T. STICH, Petitioner, Appellant
C1-87-645.
Supreme Court of Minnesota.
Jul 1, 1988.
425 N.W.2d 580
1988 Minn. LEXIS 138
1988 WL 66502
Kay Nord Hunt, Caryn F. Brenner, Minneapolis, for appellant., Gerald M. Singer, John P. Sheehy, Minneapolis, for respondent.
Popovich.
Cited by 972 opinions  |  Published
2 passages pin-cited by 3 cases
Pinpoint authority: #28,456 of 633,719
Citer courts: Court of Appeals of Minnesota (3)
POPOVICH, Justice.

DeVee Thiele sued attorney Robert Stich in 1986 for legal malpractice in connection with her 1980 dissolution proceeding. Stich answered alleging insufficient service of process and Thiele re-served the summons and complaint. The trial court granted summary judgment for Stich on the ground that the six-year statute of limitations had run by the time of the second, proper service. The court of appeals reversed, holding the first service was ineffective, but the limitation period did not begin to run until 1986. Thiele v. Stich, 416 N.W.2d 827, 829-30 (Minn.App.1987). We agree the initial service was inadequate, but find the court of appeals erroneously considered the alternative accrual date for plaintiffs action, an issue neither raised in the trial court nor decidable on that record. We therefore reverse.

I.

In 1979, DeVee Thiele hired attorney Robert Stich to handle her divorce from Gary Moore. It is not clear whether Stich represented both parties, or whether Moore had his own counsel. Stich learned the parties were not legally married, as Gary Moore was married to another woman at the time he attempted marriage with Thiele in 1969. On July 29,1980, the court filed a decree dissolving the purported marriage and dividing property the couple had acquired. The division included real estate purchased in joint tenancy, which was awarded to the parties equally as tenants in common.

Gary Moore subsequently sought partition of the real property and enforcement of a second mortgage against it, though the record does not indicate when his action began or what form it took. Thiele in turn filed this malpractice action against Stich, claiming that due to his negligence the 1980 decree failed to account for the parties’ then-existing debts, protect Thiele’s continued enjoyment of the property, or provide for payment of the second mortgage, real estate taxes, and improvements.

Stich was initially served with Thiele’s summons and complaint on July 17, 1986, but the process-server simply left the document with the receptionist in Stich’s law office when he was not there. He alleged insufficient service of process in his answer, and was then personally handed the identical summons and complaint at his office on August 14, 1986.

Stich filed a motion for summary judgment, alleging Thiele’s action was time-barred under Minn.Stat. § 541.05, subd. 1(5) (1986). He contended Thiele’s cause of action accrued on the date of the dissolution decree, July 29, 1980, and the six-year limitation period therefore expired on July 29, 1986. Stich said the July 17, 1986, service was ineffective to commence the action because the summons was neither delivered personally nor left at his usual place of abode, as required under Minn.R.[*582] Civ.P., 4.03. Thiele responded that her cause “arguably” accrued in 1980, but claimed the first service on Stich properly commenced the action because he had actual notice of the suit within the limitation period. The court held service at defendant’s place of business could not be so liberally construed, and granted summary judgment for Stich.

Thiele appealed, and in her statement of the case framed the issue as whether the July 17, 1986, service in Stich’s office was proper, and whether Stich had sufficient notice of the suit given the fact that he referred the complaint to his insurers and retained counsel. However, Thiele additionally argued in her court of appeals brief that the August 14, 1987, service on Stich was well within the six-year limitation period because her cause of action did not accrue until she became aware of Stich’s neglect in 1986. The court of appeals found the July 17,1986, service ineffective, but agreed Thiele’s cause of action did not accrue until her ex-husband filed his partition action in May, 1986. The court therefore reversed the judgment for Stich on the statute of limitations issue, remanding the case for trial. Thiele, 416 N.W.2d at 830.

II.

Stich contends the court of appeals improperly considered a statute of limitations question never litigated below. We agree. A reviewing court must generally consider “only those issues that the record shows were presented and considered by the trial court in deciding the matter before it.” Thayer v. American Financial Advisers, Inc., 322 N.W.2d 599, 604 (Minn.1982); see also Thompson v. Barnes, 294 Minn. 528, 200 N.W.2d 921, 927 (1972). More specifically, this court “will not consider the applicability of the statute of limitations on appeal, even though the question was raised below, if it was not passed on by the trial court.” Rehberger v. Project Plumbing Co. Inc., 295 Minn. 577, 578, 205 N.W.2d 126, 127 (1973); accord Togstad v. Vesely, Otto, Miller & Keefe, 291 N.W.2d 686, 694 (Minn.1980). This principle especially applies when facts on which the limitations issue rests are in dispute. Rehberger, 205 N.W.2d at 127.

Nor may a party obtain review by raising the same general issue litigated below but under a different theory. Pomush v. McGroarty, 285 N.W.2d 91, 93 (Minn.1979) (cannot raise new negligence theory on appeal); Security Bank of Pine Island v. Holst, 298 Minn. 563, 564, 215 N.W.2d 61, 62 (1974) (elementary that party cannot shift his position on appeal). We recently applied this rule in a slightly different context, holding plaintiffs who won their case at trial but later lost on appeal “were under an obligation to preserve their alternative theories for standing to sue.” Mattson v. Underwriters at Lloyds of London, 414 N.W.2d 717, 721 (Minn.1987). Failure to do so leaves that party vulnerable to the claim it is shifting theories on appeal or reviving an abandoned theory. Id. at 721-22.

The parties here obviously litigated the statute of limitations question in trial court, but the sole point of controversy was whether the July 17, 1986, service on Stich was effective to commence the action. Thiele never contended her action accrued on any date other than July 29, 1980, and she failed to even put that issue before the court of appeals in her statement of the case. Her position in trial court was that “[ajrguably, the facts suggest that Plaintiffs cause of action came into being on July 29,1980.” That statement may not be an express concession, but it does not dispute Stich’s express argument in his trial memorandum that plaintiffs cause came into being on the date of her dissolution degree. Having lost on the theory under which she argued the case, Thiele plainly raised an alternative theory for the first time on appeal. The court of appeals nevertheless addressed and decided this new issue, without acknowledging or defending its deviation from the rule proscribing such appellate review.

Even if the court of appeals acted within its discretion to consider Thiele’s new statute of limitations theory, it was still bound to the trial court record. An appellate court may not base its decision on[*583] matters outside the record on appeal, and may not consider matters not produced and received in evidence below. Plowman v. Copeland, Buhl & Co., Ltd., 261 N.W.2d 581, 583 (Minn.1977); Minn.R.Civ.App.P.110. Not surprisingly, the key facts supporting Thiele’s accrual claim were never presented to the trial court, being largely irrelevant to the question litigated there.

The court of appeals found Thiele’s cause of action commenced in 1986 because “[she] believed the second mortgage on the property had been paid off before the dissolution proceeding began”; she had “no expectation that the decree would contain any reference to the mortgage”; and she suffered “no damage until [Gary] Moore filed his action in May 1986.” Thiele, 416 N.W.2d at 829-30. None of these “facts” appear in the complaint, answer, dissolution decree, or Stich’s affidavit — which make up the record before the trial court. Indeed, the record does not even indicate whether Moore actually filed a partition action or, if so, when. Moreover, the amended statement of proceedings filed in the court of appeals, which was approved by both parties and the trial court, failed to mention these allegations. As Stich points out, the court must have drawn this information from Thiele’s appellate brief, which contains these new factual allegations. It clearly erred in so reaching beyond the trial court record.

Thiele apparently takes Stich’s argument one step further, claiming the record was inadequate to establish any date on which the cause of action accrued. She contends Stich, as the moving party on a claim for which he bears the burden of proof at trial, was obligated to show the absence of any factual issue material to the statute of limitations. In her view, summary judgment was inappropriate because the materials accompanying Stich’s motion were insufficient to establish when the limitation period began to run.

Thiele overstates Stich’s burden. The party moving for summary judgment under Rule 56, Minn.R.Civ.P., must demonstrate no genuine issue of material fact exists. [1] 2A D. Herr and R. Haydock, Minnesota Practice, § 56.18 at 69 (2d ed. 1985); 10A C. Wright, A. Miller, M. Kane, Federal Practice and Procedure, § 2727 at 121 (2d ed. 1983). One asserting the statute of limitations also has the burden of proving all the elements of that affirmative defense. Golden v. Lerch Bros., 203 Minn. 211, 220, 281 N.W. 249, 253 (1938). However, when the moving party makes out a prima facie case, the burden of producing facts that raise a genuine issue shifts to the opposing party. Wright & Miller, § 2727 at 143-44; Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2556-57, 91 L.Ed.2d 265 (Brennan, J., dissenting, but not on this point). This principle is reflected in our frequent holdings that summary judgment is proper when the nonmov-ing party fails to provide the court with specific indications that there is a genuine issue of fact. See Hunt v. IBM Mid America Employees Federal Credit Union, 384 N.W.2d 853, 855 (Minn.1986); Erickson v. Gen’l United Life Ins. Co., 256 N.W.2d 255, 259 (Minn.1977).

Stich submitted five exhibits and an affidavit that demonstrate when the dissolution decree was filed and when he was served. He specifically argued the cause accrued on the date of the dissolution decree, a point Thiele did not refute. Stich, then, surely offered enough support for his claim to shift onto Thiele the burden of producing contrary facts. He did not have a duty, as Thiele practically implies, to anticipate every argument she might make. Though Thiele failed to raise what could be a genuine issue of fact and law, there was no factual dispute on the single issue properly before the court.

[*584] Thiele s reliance on Rossman v. 740 River Drive, 308 Minn. 134, 241 N.W.2d 91 (1976), is similarly misplaced. In Ross-man, a landlord sought summary judgment on the enforceability of an exculpatory clause in a lease. The enforceability issue turned on the precise nature of the landlord’s negligence, which could not be determined from facts on the record. Summary judgment is improper, we held, unless “the material facts which affect the result or outcome of the case are both disclosed and undisputed.” 241 N.W.2d at 93. Here, though, the trial court could easily decide whether the limitations period had run based on the facts before it, particularly when the parties did not dispute the accrual date. To be sure, the facts are insufficient to find some accrual date other than July 29, 1980, but neither party asked the court to do so. Thiele’s argument, again, seems an attempt to sidestep her own failure to raise the accrual issue in trial court.

III.

Perhaps anticipating our acceptance of Stich’s threshold argument, Thiele renews her trial court position that service on July 17, 1986, was effective to commence the action within six years after July 29, 1980. The court of appeals, however, properly rejected that claim.

Under the rules of civil procedure, service of process can be effected on an individual only “by delivering a copy to him personally or by leaving a copy at his usual place of abode with some person of suitable age and discretion then residing therein.” Minn.R.Civ.P. 4.03(a). Limited exceptions are inapplicable here. See id. The July 17, 1986, summons was left with Stich’s receptionist at his law office, clearly violating the rule.

Thiele relies on Larson v. Hendrickson, 394 N.W.2d 524, 526 (Minn.App.1986), for the proposition that rules governing service are liberally construed when the intended recipient had actual notice of the lawsuit. Larson involved service on a tenant in defendant’s house while defendant was out of state; the issue was whether the house was defendant’s “usual place of abode.” In that context, defendant’s actual notice of the suit contributed to the finding that service was effective under Rule 4.03. Id.

This “actual notice” exception, however, has been recognized only in cases involving substitute service at defendant’s residence. See, e.g., Minnesota Mining & Manufacturing Co. v. Kirkevold, 87 F.R.D. 317 (D.Minn.1980). One reason for this approach is that there may be no place significantly more desirable for the papers to be left. Wright & Miller, Federal Practice and Procedure, § 1096 at 79 (2d ed. 1987). Rule 4 is otherwise taken literally, and cannot be satisfied by service on defendant’s place of work or business. Thompson v. Kerr, 555 F.Supp. 1090, 1093 (D. Ohio 1982); Wright & Miller § 1096 at 74. Actual notice will not subject defendants to personal jurisdiction absent substantial compliance with Rule 4. See Benny v. Pipes, 799 F.2d 489, 492 (9th Cir.1986); Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir.1982).

No attempt was made here to serve a summons at Stich’s residence. Leaving the papers with Stich’s receptionist did not comply with the rule in any way. The court of appeals correctly found the first attempted service was ineffective, and Stich was not effectively served until August 14, 1986.

IV.

There was no dispute in trial court that Thiele’s malpractice action accrued on July 29,1980, when damage from Stich’s alleged negligence occurred. See Dalton v. Dow Chemical Co., 280 Minn. 147, 153, 158 N.W.2d 580, 584 (1968). As Stich was not effectively served within six years of that date, the malpractice claim was time-barred under Minn.Stat. § 541.05, subd. 1(5). The trial court correctly granted summary judgment, for Stich. We reverse the court of appeals insofar as it considered and decided an issue never litigated below, the merits of which we need not reach.

Reversed.

1

. The United States Supreme Court has recently interpreted this burden, when the party also bears the burden of persuasion on the merits, as a duty to produce “credible evidence — using any of the materials specified in Rule 56(c) — that would entitle it to a directed verdict if not controverted at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2557, 91 L.Ed.2d 265 (1986) (Brennan J., writing in dissent but laying out majority position with which he agrees). Celotex, however, speaks more directly to the issue of the moving party’s burden on summary judgment when the nonmoving party carries the burden of persuasion at trial. Id. 106 S.Ct. at 2554-55.