This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Kimberly Scott Buell, petitioner,





Eugene Carl Buell,



Filed December 12, 2006

Reversed and remanded

Randall, Judge


Hennepin County District Court

File No. DC 288081


Joani C. Moberg, John R. Hill, Larkin Hoffman Daly & Lindgren Ltd., 7900 Xerxes Avenue South, 1500 Wells Fargo Plaza, Minneapolis, MN  55431 (for appellant)


Timothy Staum, Mackall Crounse & Moore, PLC, 1400 AT&T Tower, 901 Marquette Avenue, Minneapolis, MN  55402-2859 (for respondent)

            Considered and decided by Randall, Presiding Judge; Halbrooks, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


            On appeal in this dissolution matter, appellant-wife argues that the district court did not lose subject-matter jurisdiction to address her motion for amended findings when the hearing did not occur within the 60-day period set out in Minn. R. Civ. P. 59.03.  We conclude Rule 59.03 is a procedural tool, and the district court did not lose jurisdiction to hear appellant’s motion.  We reverse and remand. 


            The marriage between appellant Kimberly Buell and respondent Eugene Buell was dissolved by judgment and decree in June 2005.  On July 6, 2005, respondent served a notice of filing and entry of findings of fact, conclusions of law, order for judgment and judgment, and decree on appellant by mail.  Shortly thereafter, on August 8, 2005, appellant served respondent with a notice of motion and motion to amend or a new trial.  Appellant’s notice of motion and motion did not contain a hearing date and time, stating only that the hearing would be held at a date and time to be determined.  Counsel for appellant subsequently obtained a hearing date of September 8, 2005, from the court clerk, and notified respondent via correspondence the next day. 

            After respondent filed a memorandum in opposition to appellant’s new trial/amended findings motion, the hearing was held on September 8, 2005.  The hearing date was 61 days after respondent’s notice of filing, taking into account service by mail.  At the hearing, respondent argued that appellant’s post-trial motions were barred by the 60-day hearing requirement contained in Minn. R. Civ. P. 59.03.  Letter briefs were submitted on the issue and, by order on October 6, 2005, the referee concluded that because the hearing had been scheduled one day after the 60-day period set forth in Rule 59.03 had expired, the court lacked jurisdiction to hear appellant’s motion.  The district court subsequently reviewed the matter and affirmed the referee’s order.  This appeal followed. 


            Appellant argues that the district court erred in concluding that because the hearing did not occur within the 60-day period set forth in Minn. R. Civ. P. 59.03, it was deprived of jurisdiction to hear her motion for amended findings.  Minn. R. Civ. P. 59.03 states that:

            A notice of motion for a new trial shall be served within 30 days after a general verdict or service of notice by a party of the filing of the decision or order; and the motion shall be heard within 60 days after such general verdict or notice of filing, unless the time for hearing be extended by the court within the 60-day period for good cause shown.


Appellate courts review jurisdictional questions de novo.  Rubey v. Vannett, 714 N.W.2d 417, 421 (Minn. 2006).

            This issue was recently addressed by the Minnesota Supreme Court in Rubey.  In that case, the district court granted sole physical and legal custody of the parties’ minor child to Vannett.  Id. at 419.  Rubey subsequently filed a motion for a new trial or amended findings.  Id.  Because the hearing on the motion occurred outside of the 60-day time frame required by Minn. R. Civ. P. 59.03, the district court found that it lacked jurisdiction and dismissed the motion.  Id. at 421.  The supreme court reversed that determination, holding that “the 60-day time limit for hearing new trial/amended findings motions is a procedural tool and does not divest the district court of jurisdiction.”  Id. at 422.

            Respondent, citing Rubey, attempts to argue that timeliness was a discretionary call on the part of the trial judge and referee.  We disagree.  Although the supreme court in Rubey ultimately affirmed the dismissal of the new trial/amended findings motion as untimely, the supreme court noted that the district court expressly determined that the motion was untimely after hearing arguments and receiving evidence and testimony on the issue.  Id. at 422-23.  Here, the orders are unambiguous.  In denying appellant’s motion, the family court referee addressed the issue purely on jurisdictional grounds.  In affirming the family court referee’s order “in its entirety,” the district court found that the referee “based his dismissal on the court’s lack of jurisdiction to hear the motion due to the fact that the hearing on [appellant’s] motion did not take place within 60 days of the notice of filing of [the referee’s] Judgment and Decree, thereby violating Minn. R. Civ. P. 59.03.”  Nowhere in the referee or the district court’s order was the timeliness issue addressed.  There is nothing in the record before us indicating that evidence and testimony on the issue were considered.

            We note that Rubey was decided after the briefs in this case were filed.  Respondent, with good professional candor, agrees that Rubey handled the jurisdictional issue.  But respondent goes on to argue that under Rubey, the district court has discretion to deny or dismiss a motion for being untimely.  As stated above, however, the timeliness issue was never addressed.  As a result, we remand to the district court.  Under Rubey, the district court can now consider the merits of respondent’s motion to dismiss on the grounds that appellant’s motion is untimely.  Our decision to reverse and remand is strictly on the jurisdictional issue.  We in no way infer the weight to be given to appellant or respondent’s arguments on the timeliness issue.  Both sides are entitled to a fresh start on remand.

            Reversed and remanded.