This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2000).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-00-1905

 

Judy B. Git, Relator,

vs.

Commissioner of Economic Security,
Respondent.

 

Filed May 1, 2001

Affirmed

Peterson, Judge

 

Department of Economic Security

File No. 526500

 

Judy B. Git, 10309 Lakeview Drive West, Minnetonka, MN† 55304-2619 (relator pro se)

 

Kent E. Todd, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN† 55101 (for respondent)

 

††††††††††† Considered and decided by Kalitowski, Presiding Judge, Peterson, Judge, and Harten, Judge.

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

PETERSON, Judge

In this certiorari appeal from a decision of the Commissioner of Economic Securityís representative that the Department of Economic Security lacked jurisdiction to consider the untimely appeal of relator Judy B. Git, relator contends that the doctrine of equitable estoppel should be applied so that her appeal can be considered.† We affirm.

FACTS

††††††††††† On May 10, 2000, the Department of Economic Security mailed relator Judy B. Git a determination of benefit account.† The determination stated that it would become final unless Git appealed it in writing within 15 days from the date shown on the document, which was May 10, 2000.† The time limit for appealing from a determination of benefit account at the time Gitís determination notice was sent was 30 days, not 15 days.† Minn. Stat. ß 268.07, subd. 3a(a) (Supp. 1999).† Git did not file a written appeal from the determination until June 13, 2000, four days after the 30-day time limit expired.† Git makes no claim that her failure to file the appeal within the 30-day period was in any way caused by the notice stating that she had 15 days to appeal.

An unemployment law judge conducted an evidentiary hearing regarding the timeliness of Gitís appeal.† Git testified that she made several telephone calls to the department about the procedure for filing an appeal and that the first person she spoke to advised her that there was an official form to be used when filing an appeal.† Git made several additional telephone calls to the department, attempting to get the proper appeal form sent to her, but was told that no such form existed.† Git testified that her delay in filing an appeal was due to her efforts to obtain an official appeal form and that she finally gave up and drafted her own letter of appeal.† Gitís husband corroborated her testimony, and there was no evidence to the contrary.

The unemployment law judge dismissed Gitís appeal for lack of jurisdiction.† Git appealed to respondent Commissioner of Economic Security.† A commissionerís representative concluded that the department lacked jurisdiction to decide Gitís appeal and affirmed the unemployment law judgeís decision.†

D E C I S I O N

††††††††††† The commissionerís representativeís determination that the department lacks jurisdiction to consider an appeal is a question of law subject to de novo review.† Stottler v. Meyers Printing Co., 602 N.W.2d 916, 918 (Minn. App. 1999).

††††††††††† A determination of a benefit account shall be final unless the applicant files an appeal within 30 calendar days after the determination was sent.† Minn. Stat. ß 268.07, subd. 3a(a) (Supp. 1999).† The time limit for filing an appeal is ďabsolute and unambiguous.Ē† See Semanko v. Depít of Employment Servs., 309 Minn. 425, 430, 244 N.W.2d 663, 666 (1976).† The time limit begins running on the date the determination is mailed to the applicantís last known address and expires at the time provided by statute, regardless of whether the applicant actually receives the determination.† Smith v. Masterson Personnel, Inc., 483 N.W.2d 111, 112 (Minn. App. 1992).† The time limit for appealing should be strictly construed, regardless of mitigating circumstances, and an untimely appeal must be dismissed for lack of jurisdiction.† King v. University of Minn., 387 N.W.2d 675, 677 (Minn. App. 1986), review denied (Minn. Aug. 13, 1986).

††††††††††† Git does not dispute that the determination was sent to her correct address or that her appeal was untimely.† Instead, she argues that the department should be equitably estopped from dismissing her appeal because the delay in filing resulted from her efforts to obtain an official appeal form after a department employee told her that such a form existed.

The application of equitable estoppel is a question of law subject to de novo review.† State v. Ramirez, 597 N.W.2d 575, 577 (Minn. App. 1999).

To establish a claim of equitable estoppel against the government, [a party] must prove:† (a) the government made a misrepresentation of a material fact; (b) the government knew the representation was false; (c) the government intended that its representation be acted upon; (d) the [party] did not know the facts; and (e) the [party] relied upon the governmentís misrepresentation to their detriment.

 

[The party] must show the government engaged in affirmative misconduct, rather than simple inadvertence, mistake or imperfect conduct.† Courts must weigh the public interest frustrated by the estoppel against the equities of the case.

 

Shetka v. Aitkin County, 541 N.W.2d 349, 353 (Minn. App. 1995) (citations omitted), review denied (Minn. Feb. 27, 1996).

††††††††††† The facts alleged by Git are not sufficient to prove an equitable estoppel claim against the department.† First, although the evidence would support a finding that no official appeal form existed and a department employee misrepresented that such a form did exist, there is no evidence that the employee knowingly made the misrepresentation.† The employee might have misunderstood Gitís question or might have believed that such a form existed.

Second, for equitable estoppel to apply, the partyís reliance must be reasonable.† Gresser v. Hotzler, 604 N.W.2d 379, 386 (Minn. App. 2000).† The evidence establishes only that Git was advised that an official appeal form existed.† There was no evidence that Git was told that an appeal had to be filed on an official form and could not be submitted by letter.† Also, Git testified that the misrepresentation was made during her initial telephone call to the department and that, in later telephone calls, she was advised that no official appeal form existed.† The determination notice sent to Git stated that an appeal must be filed within 15 days and that instructions for appealing were on the back of the determination notice.† The instructions said nothing about an official appeal form.† Under these circumstances, Gitís reliance on a misrepresentation that an official appeal form existed was not reasonable.

Affirmed.