IN RE CD. BY THE MINNEAPOLIS COM. DEV

Full title: In the Matter of Condemnation by the Minneapolis Community Development…

Court: Minnesota Court of Appeals

Date published: Mar 19, 2002

No. C3-01-1688 (Minn. Ct. App. Mar. 19, 2002)

Opinion

No. C3-01-1688.

Filed March 19, 2002.

Appeal from the District Court, Hennepin County, File No. CD2565.

Patrick J. Neaton, (for appellant Mohid Elkhuffash)

Edward Kelly Keady, (for respondents Dowds)

Allen D. Barnard, (for respondent MCDA)

Considered and decided by Toussaint, Chief Judge, Shumaker, Judge, and Foley, Judge.^_

_ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).

UNPUBLISHED OPINION

TOUSSAINT, Chief Judge

Respondent Minneapolis Community Development Authority (MCDA) condemned the building appellant-condemnee Mohid Elkhuffash leased and from which he runs his business. After the condemnation commissioners gave appellant an award he believed was inadequate, he appealed various aspects of the award to district court, but he failed to serve the property's owners, respondents Nancy and Patrick Dowd, with his appeal papers. The district court granted summary judgment on some of appellant's arguments and dismissed the appeal without addressing the merits of his claims. Because the lack of proper service is fatal to the district court's ability to hear the appeal, we affirm.

DECISION

Appellant did not serve his notice of appeal to district court of the commissioners' award on the property owners or their counsel. While the service question was raised in district court it did not explicitly address that question. We review jurisdictional questions de novo. Naegele Outdoor Adver. Inc. v. Minneapolis Cmty. Dev. Agency, 551 N.W.2d 235, 236 (Minn.App. 1996). The requirements for serving a notice of an appeal to district court of a commissioners' award include, among other things, that service be made on

all respondents and all other parties to the proceedings having an interest in any parcel described in the appeal who are shown in the petitioner's affidavit of mailing, required by section 117.115, subdivision 2, as having been mailed a notice of the report of the commissioners.

Minn. Stat. § 117.145 (2000). Here, it is undisputed that the owners had an interest in the property and that they were listed on the affidavit of mailing required by Minn. Stat. § 117.115, subd. 2. Therefore, appellant's failure to serve the owners with the appeal papers means that he failed to comply with the statute.

Cases from this court suggest that a lack of proper service deprives the district court of subject matter jurisdiction over the appeal. In re Condemnation by Housing Redevelopment Authority in and for Fridley v. Suh, 553 N.W.2d 115, 117 (Minn.App. 1996), review denied (Minn. Nov. 20, 1996); Minneapolis Cmty. Dev. Agency v. Golden Spike, Inc., 536 N.W.2d 30, 32 (Minn.App. 1995), review denied (Minn., Oct. 18, 1995); Ind. Sch. Dist. No. 194 Lakeville v. Tollefson Dev., Inc., 506 N.W.2d 346, 347 (Minn.App. 1993), review denied (Minn. Nov. 16, 1993). The supreme court, however, has twice declined to address the question of whether a lack of proper service deprives the district court of subject matter jurisdiction over an attempt to appeal a commissioners' award to district court. Housing Redevelopment Auth. v. Adleman, 590 N.W.2d 327, 333 (Minn. 1999); County of Dakota v. Lyndale Terminal, 529 N.W.2d 672, 675 (Minn. 1995). To resolve this appeal we need not address the precise question of whether the lack of service deprived the district court of subject matter jurisdiction over the appeal. We simply note that, in Adleman, the supreme court indicated that "section 117.145 prescribes the steps necessary to perfect an appeal from a condemnation commissioners' award." 590 N.W.2d at 330 (internal quotation marks and citations omitted). For this reason, we conclude that the district court lacked the authority to hear appellant's appeal.

To the extent appellant argues that it was not his fault that counsel for respondent MCDA gave appellant's attorney the wrong service list and therefore that appellant should not be penalized for the defective service, we note, among other things, that the list appellant was provided states that it was for "Parcel 1." In this condemnation proceeding, however, the parcel leased by appellant was "Parcel 2." Thus, appellant had the opportunity to discern that the list he was provided was incorrect.

Affirmed.