This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-00-36

 

Central Internal Medicine Assoc. P.A.,

Respondent,

 

vs.

 

Keith V. Chilgren, et al.,

Appellants.

 

Filed July 18, 2000

Affirmed

Randall, Judge

 

Ramsey County District Court

File No. UD C1-99-11128

 

Brian D. Alton, McClay & Alton, P.L.L.P., 951 Grand Avenue, St. Paul, MN 55105 (for respondent)

 

James E. Blaney, Barak J. Babcock, Moore, Costello & Hart, P.L.L.P., 1400 Norwest Center, 55 East Fifth Street, St. Paul, MN 55101-1792 (for appellants)

 

 

Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Willis, Judge.


U N P U B L I S H E D O P I N I O N

RANDALL, Judge

Respondent brought an unlawful-detainer action, appellants failed to appear at the hearing, the district court ordered the issuance of a writ of restitution, and judgment was entered. Appellants challenge the judgment, contending that the district court did not have subject-matter jurisdiction over the unlawful-detainer action because service of the summons did not comply with the requirements of Minn. Stat.  504B.331 (Supp. 1999). We affirm.

FACTS

Respondent Central Internal Medicine Associates, P.A. (CIMA), filed a complaint seeking a writ of restitution and asserting that appellants Keith V. Chilgren and T. Lynn Chilgren (the Chilgrens) breached the terms of a contract for deed. The district court issued an eviction summons, which ordered the Chilgrens to appear on December 29, 1999. The process server went to the Chilgrens' residence and attempted to serve them with the summons five times between December 17 and December 22. After five unsuccessful attempts, the process server posted the summons at the subject property on December 22 and mailed the Chilgrens a copy by certified mail. The Chilgrens did not appear at the December 29 hearing, and the district court ordered an immediate writ of restitution in CIMA's favor.


D E C I S I O N

Subject-matter jurisdiction and statutory interpretation are legal issues reviewed de novo on appeal. Kasdan v. Berney, 587 N.W.2d 319, 321 (Minn. App. 1999).

I.

The Chilgrens first assert that the district court did not have subject-matter jurisdiction[1] over this matter because CIMA posted the summons for less than a week and thereby failed to comply with the statutory requirements. See Minn. Stat. 504B.331(d) (Supp. 1999) (stating where defendant cannot be found, service of summons may be made by posting summons in conspicuous place on property "for not less than one week").

Pursuant to Minn. R. Civ. P. 6.01:

In computing any period of time prescribed or allowed * * * by any applicable statute, the date of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday * * * .

 

The date of the hearing is the "last day" for computing purposes. See Township Bd. v. Lewis, 305 Minn. 488, 491-92, 234 N.W.2d 815, 818 (1975).

The summons in this case was posted on December 22, 1999, and the hearing was held on December 29. Starting with December 23 and ending on December 29, the summons was posted for seven days.

The Chilgrens assert that a summons must be posted for a full seven days. Here, they point out, the process server stated in his affidavit that he last attempted service at 9:35 a.m. on December 22 and after doing so had to travel approximately a mile to the property in question to post the summons. The hearing on December 29 was held at 8:45 a.m. Thus, they argue, the summons was not posted for seven full days.

The Chilgrens cite no authority, and there appears to be no authority, that supports their assertion that the court is required to count not only the days but also the exact hours. Most importantly, the day of posting is not counted when calculating days. Thus, the time of service on December 22 is irrelevant. See Minn. R. Civ. P. 6.01 (stating date of act from which designated time period begins to run shall not be included in computing prescribed time period). The first day included in the calculation is December 23, not December 22. Additionally, in holding that the day of the hearing is included in the calculation as the last day, the supreme court did not establish any requirement that the specific time of the hearing be considered. See Lewis, 305 Minn. at 491-92, 234 N.W.2d at 818 (recognizing day of hearing is included in calculation as last day). The Chilgrens' argument on this issue is without merit.

II.

The Chilgrens next argue that the district court did not have subject-matter jurisdiction over this action because neither CIMA nor its counsel signed the affidavit stating that the summons was mailed to the Chilgrens at their last known address.

The relevant portion of the statute states:

Where the defendant cannot be found in the county, service of the summons may be made upon the defendant by posting the summons in a conspicuous place on the property for not less than one week if: * * *

(2) the plaintiff or the plaintiff's attorney has signed and filed with the court an affidavit stating that:

(i) the defendant cannot be found, or that the plaintiff or the plaintiff's attorney believes that the defendant is not in the state; and

(ii) a copy of the summons has been mailed to the defendant at the defendant's last known address if any is known to the plaintiff.

 

Minn. Stat. 504B.331(d)(2).

The process server signed an affidavit stating he mailed a copy of the summons to the Chilgrens at their last known address. CIMA's attorney submitted a separate affidavit in which he stated that he believed the Chilgrens could not be found or were not in the state but did not mention that a copy of the summons had been mailed to the Chilgrens' last address. The Chilgrens do not contend that the process server failed to mail them a copy of the summons after posting it. Instead, they allege only that CIMA did not comply with the statute because neither CIMA nor CIMA's counsel personally signed the affidavit stating that a copy was mailed to the Chilgrens. Because Minn. Stat.  504B.331(d)(2) specifically requires "the plaintiff or the plaintiff's attorney" to "sign[ ] and file[ ]" an affidavit stating that a copy of the summons has been mailed to the defendant at the defendant's last known address, CIMA did not strictly comply with the statute's language. Thus, the issue here is whether the statute requires strict compliance.

In interpreting the section of the unlawful-detainer statutes governing the contents of the complaint and summons, this court recently concluded that substantial compliance may be applied to the statutory requirement that the summons state "that the original [complaint] has been filed." Times Square Shopping Ctr., LLP v. Tobacco City, Inc., 585 N.W.2d 791, 792 (Minn. App. 1998) (interpreting Minn. Stat. 566.05(a) (Supp. 1997), predecessor to Minn. Stat. 504B.321, subd. 1(e) (Supp. 1999)), review denied (Minn. Jan. 21, 1999). This court recognized in Times Square that although the eviction summons did not state that the original complaint had been filed, as the statute required, it did state that appellant was to appear at a certain date, time, and place. Id. The eviction summons substantially complied with Minn. Stat. 566.05(a) because the court date could not have been scheduled unless the complaint was filed and because appellant
was personally served with a copy of the summons and complaint, which contained an initialed date stamp and a handwritten case number. Id.

As this court recognized in Times Square, "A summons is 'a mere notice' that 'must substantially comply with the requirements of the rules' governing the service and form of process." Id. (quoting Tharp v. Tharp, 228 Minn. 23, 24, 36 N.W.2d 1, 2 (1949) and Haas v. Brandvold, 418 N.W.2d 511, 513 (Minn. App. 1988)).[2] Similar to the challenge to the form of the summons in Times Square, the Chilgrens are objecting only to the form of the affidavit sent to the district court and not to the service of the summons itself. Because it is undisputed that the process server posted the summons and mailed a copy to the Chilgrens' last known address, "the function of the eviction notice was not negated by the minor technical error." Id. We conclude the district court had subject matter jurisdiction over this unlawful-detainer action.

Affirmed.



[1] Unlawful-detainer actions are a statutory creation. See State v. Brown, 203 Minn. 505, 507, 282 N.W. 136, 137 (1938) (holding statutes governing unlawful-detainer proceedings give landlord protection not available under common law). The court obtains jurisdiction over an unlawful-detainer action only if such an action is properly commenced pursuant to statute. See Color-Ad Packaging, Inc. v. Kapak Indus., Inc., 285 Minn. 525, 526 n.1, 172 N.W.2d 568, 569, n.1 (1969) (holding court lacked jurisdiction to hear matter where service-of-process provisions contained in unlawful-detainer statute were violated), overruled on other grounds by Township Bd. v. Lewis, 305 Minn. 488, 492, 234 N.W.2d 815, 818 (1975) (recognizing court miscalculated days in Color-Ad); cf. County of Dakota v. City of Lakeville, 559 N.W.2d 716, 721 (Minn. App. 1997) (holding where appellants failed to publish notice of Minnesota Environmental Rights Act claim within 21 days of commencing action, court had no jurisdiction over matter).

[2] We recognize that this court held in County of Dakota, 559 N.W.2d at 721, that the substantial-compliance doctrine is inapplicable to statutory requirements necessary to confer jurisdiction. In that case, however, we were reviewing Minn. Stat. 116B.03, subd. 2 (1994), which states that a plaintiff "shall" publish notice within 21 days after commencing an action under the Minnesota Environmental Rights Act. County of Dakota, 559 N.W.2d at 721. Minn. Stat. 504B.331(d)(2) contains no such mandatory language. See Minn. Stat. 645.44, subd. 15 (1998) ("'Shall' is mandatory.").