This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2320

 

Nicholas John Sing,
Appellant,

vs.

1997 Cadillac,
Respondent.

 

 

Filed August 29, 2006

Affirmed

Parker, Judge*

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

PARKER, Judge

            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

 

            Whether a 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 (Minn. App. 1999).  And whether service of process was proper is a legal question subject to de novo review.  Turek v. A.S.P. of Moorhead, Inc., 618 N.W.2d 609, 611 (Minn. App. 2000), review denied (Minn. Jan. 26, 2001). 

            Generally, 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, return envelope.  Minn. R. Civ. P. 4.05; see Minn. R. Civ. P. 3.01(b) (providing that in cases where service is by mail, action is commenced on date of acknowledgment of service).  Service by mail requires strict compliance and is ineffectual if the acknowledgment is not signed and returned, even if the defendant has actual notice of the lawsuit.  Coons v. St. Paul Cos., 486 N.W.2d 771, 776 (Minn. App. 1992), review denied (Minn. July 16, 1992); see Hughes v. Lund, 603 N.W.2d 674, 677 (Minn. App. 1999) (holding improper service by mail rendered district court action null). 

            Acknowledgment under rule 4.05 must be in writing.  Larson v. New Richland Care Ctr., 520 N.W.2d 480, 482 (Minn. App. 1994).  And whether the party attempting service by mail has substantially complied with rule 4.05 is irrelevant in determining whether service was effective.  Turek, 618 N.W.2d at 612.  An improperly served party waives the right to challenge the effectiveness of service only if the party has taken an affirmative step to invoke the district court’s power to determine the merits of the claim and thereby submitted to the district court’s jurisdiction.  Id.at 612-13.

            The rules 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.  Minn. Stat. § 609.5314, subd. 2 (2004).  The notice states, “IF YOU DO NOT DEMAND JUDICIAL REVIEW EXACTLY AS PRESCRIBED IN MINNESOTA STATUTES, SECTION 609.5314, SUBDIVISION 3, YOU LOSE THE RIGHT TO A JUDICIAL DETERMINATION OF THIS FORFEITURE.”  Id., subd. 2(b)(3). 

            According to subdivision 3, once served with notice of the seizure, a claimant has 60 days to demand judicial determination of the forfeiture.  Id., subd. 3(a).  “The demand must be in the form of a civil complaint and must be filed with the court administrator in the county in which the seizure occurred, together with proof of service of a copy of the complaint on the county attorney.”  Id.  No action for the return of property seized under section 609.5314 may be maintained by any person who has not complied with subdivision 3.  Id., subd. 3(b) (2004); see Garde v. One 1992 Ford Explorer XLT Motor Vehicle, 662 N.W.2d 165, 167 (Minn. App. 2003) (holding that when a party fails to comply with service and filing requirement of Minn. Stat. § 169A.63, subd. 8(d) (2000), district court lacks jurisdiction over DWI-related forfeiture proceeding and must dismiss action).

            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. 

            But the 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 (Minn. 1988).  Furthermore, the doctrines of laches and estoppel are inapplicable because the state did not delay enforcement of a legal right and did nothing to induce Sing into failing to perfect service.  See Gully v. Gully, 599 N.W.2d 814, 825 (Minn. 1999) (“Th[e] equitable doctrine [of laches] provides that, when one sits on one’s rights for too long a time, that person’s claim should be estopped from continuing because it would be inequitable to require the defendant to fight the suit.”); N. Petrochemical Co. v. U.S. Fire Ins. Co., 277 N.W.2d 408, 410 (Minn. 1979) (“To establish a claim of estoppel, plaintiff must prove that defendant made representations or inducements, upon which plaintiff reasonably relied, and that plaintiff will be harmed if the claim of estoppel is not allowed.”). 

            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. County of Dakota, 693 N.W.2d 412, 421 (Minn. 2005) (providing that statutes are presumed constitutional and party challenging bears burden of proving statute unconstitutional).  Sing argues that the strict procedural requirements in the forfeiture statute render it unconstitutional, but contends that if this court reads into the statute a requirement that the state notify him that service was ineffectual, the statute is not unconstitutional.  But there is no authority for Sing’s proposition that the state was required to inform him that the service by mail was ineffectual.  And this court will not supply a requirement “that the legislature has purposely or inadvertently omitted.”  Johnson v. 1996 GMC Sierra, 606 N.W.2d 455, 458 (Minn. App. 2000), review denied (Minn. Apr. 18, 2000).

            Sing’s 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.”  Id. at 458-59.  The written notice informed Sing of the right to obtain judicial review of the forfeiture and referred him to the governing statute in bold letters:  “MINNESOTA STATUTES, SECTION 609.5314, SUBDIVISION 3.”  That statute states that the rules of civil procedure govern and that compliance with the statute is required in order to maintain an action.  Sing’s failure to comply with the statute and rules is not the result of a lack of notice.   

            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.

            Affirmed.

MINGE, Judge (dissenting)

            I 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.  See Minn. R. Civ. P. 4.05.  The county attorney concedes that it received the complaint on a timely basis, and did not challenge the adequacy of service until after the time to correct the defect in service had expired.  Although the statute states that forfeiture proceedings are governed by the Rules of Civil Procedure, the statute does not specify the method of service or what constitutes “proof of service.”  See Minn. Stat. § 609.5314, subd. 3(a).  In this situation, I would find service adequate to obtain judicial review of the forfeiture.  In our earlier consideration of inadequate service to obtain judicial review of a vehicle forfeiture, appellant failed to serve the governmental entity involved.  See Garde v. One 1992 Ford Explorer XLT Motor Vehicle, 662 N.W.2d 165, 166 (Minn. App. 2003). 

            This 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 (Minn. App. 1992), review denied (Minn. June 10, 1992).  Forfeitures are not favored in law.  Borgen v. 418 Eglon Ave., 712 N.W.2d 809, 812 (Minn. App. 2006); Jandric v. Skahan, 235 Minn. 256, 260, 50 N.W.2d 625, 628 (1951).  Certainly forfeiture of a person’s property is deserving of protecting the opportunity for judicial review.  To preclude an owner’s right to review for failure to adequately serve the state ignores the overwhelming state action inherent in this forfeiture proceeding.  Here, the state initiated the underlying action and has possession of the property.  Compare denial of judicial review in this setting with the protections accorded owners of real property in forfeiture for nonpayment of taxes.  See State ex rel. Central Hanover Bank & Trust Co. v. Erickson, 212 Minn. 218, 225, 3 N.W.2d 231, 235 (1942).