Opinion
No. C8-96-584.
Filed June 17, 1996.
Mark A. Paige, (for Appellant)
Sherilyn Laverne Battee, (Pro Se Respondent)
James Backstrom, Dakota County Attorney, Vance B. Grannis, II, Assistant County Attorney, (for Respondent Dakota County)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1994)
Unpublished Opinion
This appeal arises from an administrative hearing to determine child support and medical support arrearages. An administrative law judge issued an order establishing the amount of Bobby Joe Battee's child support arrears, the parties stipulated to entry of judgment, and Battee filed this appeal. After this court denied its first motion to dismiss, Dakota County again moved to dismiss Battee's appeal on the grounds that it is untimely.
In opposition to the motion, Battee argues the county is collaterally estopped from raising the timeliness issue, and the notice of filing was ineffective, inadequate, and misleading.
Decision
Battee argues collateral estoppel prohibits the county from bringing this second motion to dismiss. We disagree. The county now raises a new issue regarding the limitation of the appeal period through service of notice of filing. Under these circumstances, there is no preclusive effect. See Loo v. Loo, 520 N.W.2d 740, 744 (Minn. 1994) (finding no preclusive effect because a subsequent motion presented a different issue). Battee also argues the notice of filing was ineffective, inadequate, and misleading. We disagree. First, the notice of filing was served by the child support officer who represented the county in the underlying proceeding. By moving for a determination of Battee's arrearages, the county was the adverse party and properly served papers on Battee. See Minn. Stat. ___.5511, subd. 5 (Supp. 1995) (nonattorney employees of the public authority responsible for child support may file motions to obtain, modify, or enforce support orders and may participate in proceedings before an administrative law judge); O'Brien v. Wendt, 295 N.W.2d 367, 370 (Minn. 1980) (definition of adverse party focuses on positions taken at trial). Second, a proper notice of filing need not include a copy of the judgment. See Duluth Ready-Mix Concrete, Inc. v. City of Duluth, 520 N.W.2d 775, 777-78 (Minn.App. 1994) (requiring service of a separate notice of filing, which "may" be accompanied by a copy of the order or judgment). And third, the notice of filing was not misleading even though it cited the general rule that an appeal from a judgment may be taken 90 days after entry, unless another time is prescribed by law. To be effective, a notice of filing need only (1) call the recipient's attention to what was filed and when, (2) constitute a separate document, (3) display an appropriate caption, and (4) describe the decision filed. Levine v. Hauser, 431 N.W.2d 269, 270 (Minn.App. 1988) (quoting Rieman v. Joubert, 376 N.W.2d 681, 683-84 n. 1 (Minn. 1985)). Under these circumstances, Battee received adequate notice of filing, which was effective to limit the appeal period.
The county argues Battee's failure to bring this appeal prior to the expiration of the appeal period is fatal. See Hofseth v. Hofseth, 456 N.W.2d 99, 100-01 (Minn.App. 1990) (appeal time from a judgment in a special proceeding arising from a dissolution action expires 30 days after the adverse party serves notice of filing); see also Minn. R. Civ. App. P. 125.03 (three days added to prescribed period if service of triggering document is by mail). The record demonstrates:(1) judgment was entered on December 21, 1995; (2) on December 28, the county served the notice of filing by mail; (3) the appeal period included three additional days due to the method of service; (4) the appeal period expired on January 30, 1996; and (5) Battee filed this appeal on March 19, 1996. Because the appeal was not filed within 33 days after the county served notice of filing by mail, we lack authority to hear this matter. See Township of Honner v. Redwood County, 518 N.W.2d 639, 641 (Minn.App. 1994) (finding no jurisdiction to hear an untimely appeal), review denied (Minn. Sept. 16, 1994).
This matter is stricken from the June 26, 1996 oral argument calendar, and the appeal is dismissed.