may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Filed June 22, 1999
Reversed and remanded
Hennepin County District Court
File No. 9812114
Yan Jing, Apartment 21, 814 Eighth Street S.E., Minneapolis, MN 55414-1346 (pro se respondent)
Peter Kauffner, P.O. Box 582045, Minneapolis, MN 55458-2045 (pro se appellant)
Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Huspeni, Judge.
Appellant Peter Kauffner challenges both the propriety of service by publication for a restraining order hearing, and the propriety of the family court referee's determination that appellant's address was "unknown." Appellant also questions whether a proper hearing was held on respondents' petition for a restraining order, and whether the district court properly dismissed appellant's case because of respondents' failure to make submissions pursuant to Minn. R. Gen. Pract. 312.01. Finding the trial court's dismissal of this matter improper, we reverse and remand.
Appellant and respondent Yan Jing had a romantic relationship from December 1997 until sometime before Jing and Dafei Chen filed for a restraining order. In their petition for a restraining order, respondents listed a number of harassing incidents involving appellant. On their petition, they listed appellant's address as "unknown," and appellant was served by publication. Appellant was not present at the restraining order hearing, and it does not appear that respondents were sworn before giving their testimony.
After the restraining order was issued, appellant filed a notice of review with the district court. The district court dismissed the review proceeding, and this appeal followed.
We first address appellant's argument that the district court erred in dismissing review of the referee's decision. We agree that dismissal was improper. Minn. R. Gen. Pract. 312.01 states that
[f]ailure to file and serve [the memoranda of the moving and responding parties] on a timely basis may result in dismissal of the review or disallowance of the submissions.
Id. The district court apparently interpreted this language to permit dismissal because respondents failed to submit papers for review.
Appellant complied with Rule 312.01 in seeking review. The district court's interpretation of the rule leads to an illogical and unacceptable result. It enables the party who prevailed before the referee, and who is in district court unwillingly for a review not desired, to frustrate that review entirely simply by doing nothing--by merely refusing to file the timely submissions described in Rule 312.01. It is entirely proper to demand that the party seeking review of a referee's order comply with Rule 312.01. But access to review in district court cannot be denied on the basis that the party who was successful before the referee did not comply with the rule. We reverse and remand to the district court for review of the referee's decision.
In view of our decision that the district court improperly dismissed this matter, we do not reach the additional issues raised by appellant before this court. We direct the district court, as part of its review hearing, to consider whether service upon appellant by publication was proper, whether a proper hearing was had before the referee, and whether witnesses were properly sworn in that hearing. See Anderson v. Lake, 536 N.W.2d 909, 911 (Minn. App. 1995).
Reversed and remanded.
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.