Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
The Housing Redevelopment Authority
In and for the City of Richfield,
a Minnesota public body corporate and politic, petitioner,
Daniel Adelmann, Trustee of the
Robert F. Adelmann Trust, et al.,
Respondents Below (C7-97-1199)
F & D Properties, a partnership
Consisting of Dayle R. Erickson and Fred C. Talbot,
Naegele Outdoor Advertising, Inc.,
Respondent Below (C7-97-1199),
Top Line Cycle, Inc., et al.,
Filed January 20, 1998
Hennepin County District Court
File No. CD-2364
Kennedy M. LaFevre, Jr., Corrine H. Thomson, Karen R. Cole, Kennedy & Graven, Chartered, 470 Pillsbury Center, Minneapolis, MN 55402 (for appellant)
William S. Rosen, Daniel N. Rosen, Andrew M. Silverstein, 2510 World Trade Center, 30 East Seventh Street, St. Paul, MN 55101 (for respondent Adelmann),
Dale Happe, 1809 E. 121st Street, Burnsville, MN 55337 (for respondent F & D)
Marvin Liszt, Diamond, Liszt, & Grady, P.A., 9855 West 78th Street, Suite 210, Minneapolis, MN 55344 (for respondent Naegele)
Considered and decided by Kalitowski, Presiding Judge, Short, Judge, and Foley, Judge.
This consolidated appeal challenges the district court's dismissal of an appeal of a court-appointed commissioners' award in an eminent domain proceeding, arguing (1) notice of filing is not a prerequisite to a valid appeal to the district court, and (2) notice of appeal need not be served on each party individually. We affirm.
This consolidated appeal involves two sets of parcels: (1) parcels 1-3, 9-19, and 21, owned by several landowners, including respondents, whom we will refer to as Adelmann Trust; and (2) parcel 20, owned by a partnership, respondent F & D Properties.
In July 1996, the commissioners filed their report as to parcels 1-3, 9-19, and 21. The HRA sent its notice of filing of the commissioners' awards to respondents' attorneys, but did not serve respondents individually. In August 1996, the HRA filed notice of appeal from the commissioners' award as to parcels 1-3, 9-19, and 21. Once again, the HRA served copies of the notices of appeal on respondents' attorneys, but did not serve respondents individually. In both instances, the HRA did not serve 18 of the respondents, only their attorneys.
In June 1996, the court-appointed commissioners issued their award as to parcel 20. The HRA gave notice of the filing of the commissioners' award to fee-owner F & D by sending notice to both its partners and its attorney. However, three respondents holding party wall and tenant interests were not served. The HRA subsequently filed notice of appeal from the commissioners' award as to parcel 20. It also served notice of appeal on both F & D's partners and its attorney. Again, three respondents holding party wall and tenant interests were not served.
Adelmann Trust and F & D brought separate motions to dismiss the HRA appeals for lack of subject matter jurisdiction. In two separate orders, the district court granted respondents' motions to dismiss the HRA appeals for lack of subject matter jurisdiction, finding the HRA had failed to comply with the notice requirements of Minn. Stat. §§ 117.145, 117.115, subd. 2 (1996).
Since the 1995 amendments, the statute governing notice of the filing of a commissioners' award has stated:
Within ten days after the date of the filing of the report of commissioners, the petitioner shall notify the following listed persons, by mail, of the filing of the report of commissioners setting forth the date of filing of the report, the amount of the award, and all the terms and conditions thereof as the same pertain to the respondent or party listed:
(1) each respondent listed in the petition as having an interest in any parcel described in the report;
(2) each other party to the petition whose appearance has been noted by the court in its order approving the petition under section 117.075; and
(3) each respondent's attorney.
1995 Minn. Laws ch. 106, § 2 (codified at Minn. Stat. § 117.115, subd. 2 (1996)) (emphasis added). The requirements for providing notice of appeal from a condemnation award were also amended in 1995 to provide:
At any time within 40 days from the date that the report has been filed, any party to the proceedings may appeal to the district court from any award of damages embraced in the report, or from any omission to award damages, by: (1) filing with the court administrator a notice of such appeal, and (2) serving by mail a copy of such notice 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.
1995 Minn. Laws ch. 106, § 3 (codified at Minn. Stat. § 117.145 (1996)) (emphasis added).
While legislation to amend Minn. Stat. § 117.145 (1994) was pending, the supreme court held that Minn. Stat. § 117.145 (1994) required an appealing party to serve notice of appeal on "those individuals or entities that are named in the condemnation petition and have been served with process." County of Dakota v. Lyndale Terminal, 529 N.W.2d 672, 674-75 (Minn. 1995).
Subsequently, based on the reasoning of Lyndale Terminal and the plain language of the 1995 amendments, this court held that Minn. Stat. § 117.145 (Supp. 1995)
require[s] service of notice on individuals and entities who are named in the condemnation petition, who have not been dismissed as parties, and who have not settled their claims to the condemnation proceeds.
In re Condemnation by the Hous. & Redevelopment Auth. in & for the City of Fridley v. Suh, 553 N.W.2d 115, 117 (Minn. App. 1995), review denied (Minn. Nov. 20, 1996).
The HRA argues that it properly provided notice of filing and notice of appeal to all parties required to be served by the condemnation statute, either directly, through their attorneys, or both. The HRA asserts that the district court erred in ruling that it lacked jurisdiction over HRA appeals because: (1) notice of filing of the condemnation award is not a prerequisite to a valid appeal to the district court; and (2) nothing requires that notice of appeal be served on each party individually, in addition to service through its counsel. We disagree.
Notice requirements for an appeal from a commissioners' award are jurisdictional in nature, and noncompliance with statutory prerequisites for an appeal deprives the district court of jurisdiction over the appeal. Id. Compliance with the notice requirements of Minn. Stat. § 117.115, subd. 2 (1996), is a statutory prerequisite for an appeal. See Minn. Stat. § 117.145 (1996) (appeal requires service of notice on all parties "shown in the petitioner's affidavit of mailing, required by section 117.115, subd. 2"). Compliance with Minn. Stat. § 117.115, subd. 2 (1996), therefore, was a jurisdictional prerequisite for a later appeal of the commissioners' condemnation award under Minn. Stat. § 117.145 (1996). See Suh, 553 N.W.2d at 118 (failure to comply with notice requirements of Minn. Stat. §§ 117.145, 117.115, subd. 2 (Supp. 1995), deprived district court of jurisdiction to consider appeal). The HRA did not comply with the notice requirements of Minn. Stat. § 117.115, subd. 2 (1996), which specifically requires notice of the filing of the commissioners' award to be made on both respondents and respondents' attorneys. When it failed to serve several respondents with notice of filing of the commissioners' award, the HRA deprived the district court of jurisdiction to consider any later appeals from the condemnation awards.
Furthermore, although the HRA served respondents' attorneys with notice of the condemnation award, as well as notice of appeal, it failed to individually serve several respondents with either type of notice. The HRA service on respondents' attorneys did not comply with the notice requirements of Minn. Stat. § 117.145 (1996). Suh held that the amended version of Minn. Stat. § 117.145
continues to require service of notice on individuals and entities who were named in the condemnation petition, who have not been dismissed as parties, and who have not settled their claims to the condemnation proceeds.
Suh, 553 N.W.2d at 117. The rules ordinarily require service on attorneys rather than parties. Minn. R. Civ. P. 5.02. However, this rule does not apply to condemnation proceedings because it is inconsistent with Minn. Stat. § 117.115, subd. 2 (1996). See Minn. R. Civ. P. 81.01(a) & app. A (1996) (rules do not apply to condemnation proceedings insofar as Minn. Stat. Chapter 117 is inconsistent with the rules). Therefore, the HRA did not comply with the notice requirements of Minn. Stat. §§ 117.145 (1996) and 117.115, subd.2 (1996), as interpreted by this court in Suh, by merely serving respondents' attorneys, without also serving respondents with notice.
The HRA also asserts that because respondents filed cross-appeals, they waived any objection to the district court's subject matter jurisdiction over this appeal. The HRA cites Lyndale Terminal, 529 N.W.2d at 675 as supporting its position that a party may waive its right to assert a claim of defective notice of appeal by participating and taking action in the appeal without objection.
In Suh, we acknowledged that the supreme court's decision in Lyndale Terminal
may have injected some doubt into its previous holdings that a defective notice of appeal from a Commissioners' award in a condemnation proceedings is still equivalent to a nonwaivable objection to a court's exercise of subject matter jurisdiction.
Suh, 553 N.W.2d at 118. However, it is not necessary for us to decide if Lyndale Terminal allows a party to waive or be estopped from challenging subject matter jurisdiction because respondents' participation in the appeal process was insufficient to have constituted a waiver.
In order to establish waiver, the evidence must clearly show that a party has intentionally relinquished a known right. Williams v. Township of Lynd, 312 N.W.2d 110, 113 (Minn. 1981). Here, there is nothing in the record that leads us to believe that respondents ever intended to waive their jurisdictional objections. The fact that respondents made a timely motion to dismiss for lack of subject matter jurisdiction is evidence that they did not intend to waive their objections to the district court's subject matter jurisdiction.