This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Nicholas John Sing,
Filed August 29, 2006
Dissenting, Minge, Judge
Stearns County District Court
File No. C8-05-2929
John E. Mack, Ralph E. Daby, Mack & Daby, P.A., 26 Main Street, P.O. Box 302, New London, MN 56273 (for appellant)
Janelle P. Kendall, Stearns County Attorney, Lotte R. Hansen, Assistant County Attorney, Administration Center, 705 Courthouse Square, Room 448, St. Cloud, MN 56303-4701 (for respondent)
Considered and decided by Minge, Presiding Judge; Halbrooks, Judge; and Parker, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Nicholas John Sing appeals the district court’s dismissal of his demand for judicial determination of the forfeiture of his vehicle, which was seized in connection with a controlled-substance offense. Because the district court lacked subject-matter jurisdiction based on Sing’s failure to serve the county attorney properly, we affirm.
D E C I S I O N
district court has subject-matter jurisdiction is a legal question subject to
de novo review. Strange v. 1997 Jeep Cherokee, 597 N.W.2d 355, 357 (
in civil actions, service of a complaint on the defendant confers jurisdiction
on the district court. Strange, 597 N.W.2d at 358; see Minn. R. Civ. P. 3.01 (providing
that service of summons and complaint commences civil action). A defendant may be served by mail, which is
achieved by mailing a copy of the summons and complaint, along with two copies
of a notice and acknowledgment of service and an addressed, postage prepaid,
under rule 4.05 must be in writing. Larson v. New
of civil procedure govern forfeiture proceedings under Minn. Stat. § 609.5314,
subd. 3(a) (2004). When property used in
connection with a controlled-substance offense is seized, all interested
persons are provided notice of the seizure and intent to forfeit, and of the right
to obtain judicial review of the forfeiture.
to subdivision 3, once served with notice of the seizure, a claimant has 60
days to demand judicial determination of the forfeiture.
After Sing’s arrest for a controlled-substance offense, his vehicle was seized and he was served with the notice of seizure and intent to forfeit property. Sing mailed the county attorney’s office a demand for judicial determination of the forfeiture, but did not include an acknowledgment of service. Sing filed the demand with the district court. The 60 days to demand judicial determination passed, Sing did not receive a signed acknowledgment of service from the county attorney’s office, and he did not attempt any other methods of service. After the 60 days expired, the state moved to dismiss.
Because the state did not submit to the jurisdiction of the district court prior to its motion to dismiss, it did not waive its right to challenge the improper service. And because the county attorney’s office did not sign and return an acknowledgment of service, the attempted service by mail was ineffectual. Without an acknowledgment of service, Sing had no way of knowing or proving that the county attorney was in receipt of his demand. Because the attempted service by mail was not effective, the district court lacked jurisdiction and properly granted the motion to dismiss. Nonetheless, Sing argues on appeal that because the state had actual notice of his demand, the doctrines of estoppel and laches prevent the state from challenging the effectiveness of service. Sing also argues that the strict service and filing requirements, which resulted in dismissal of his demand, potentially render the forfeiture statute unconstitutional.
state’s actual notice of the demand is irrelevant in determining if service by
mail was proper, and none of these arguments was made before the district court. This court will generally not consider
matters not argued and considered in the district court. Thiele
v. Stich, 425 N.W.2d 580, 582 (
Sing also fails to meet the high
burden of establishing beyond a reasonable doubt that the forfeiture statute is
unconstitutional. See ILHC of Eagan, L.L.C. v.
due-process claim also fails as he cannot show “he was denied reasonable
notice, a timely opportunity for a hearing, the right to the representation of
counsel, the opportunity to present evidence and argument, or any other
essential attribute of due process.”
Finally, Sing argues that because there was no answer required, there was no deadline to determine his service by mail ineffectual. See Minn. Stat. § 609.5314, subd. 3(a) (stating county attorney is not required to file responsive pleadings to demand for judicial review of forfeiture); Minn. R. Civ. P. 4.05 (stating service by mail is ineffectual if acknowledgment is not received within time defendant is required to serve an answer). But this minor gap between the rule and the statute does not mislead a party regarding how to achieve service by mail. Without a signed acknowledgment, service by mail is ineffectual, even in cases of actual notice and substantial compliance. Because Sing failed to comply strictly with the service and filing requirements, the district court lacked jurisdiction over the forfeiture proceeding and properly dismissed his demand.
MINGE, Judge (dissenting)
respectfully dissent. This proceeding is
for judicial review of a vehicle forfeiture.
The law provides that the vehicle owner may obtain review by filing a
complaint with proof of service on the county attorney. Minn. Stat. § 609.5314, subd. 3(a)
(2004). In this case, the county
attorney was timely sent a copy of the complaint requesting judicial review,
and the complaint was timely filed with the court administrator. The issue is whether the complaint was
adequately served on the county attorney.
The problem is that when appellant mailed the complaint to the county
attorney, he did not enclose an acknowledgement or admission of service as
specified for commencement of an action.
court has overlooked a defect in mailed service to sustain jurisdiction to
collect attorney fees. See Blaeser & Johnson, P.A. v. Kjellberg,
483 N.W.2d 98, 102 (
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.