Hubert H. Humphrey III, Attorney General, Amy V. Kvalseth, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103-2106 (for respondent)

Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Mansur, Judge.*

*Retired judge of the District Court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

MANSUR, Judge

Appellant E.M.D. Construction Company, the owner of real property foreclosed on by the state through a tax forfeiture, appeals from the trial court's grant of summary judgment denying its claim for compensation from the general fund, contending primarily that the trial court erred in granting summary judgment because the county failed to provide proper notice of the expiration of redemption. We affirm.

Appellant contends that it is entitled to recovery from the general fund under Minn. Stat. § 284.28 (1996) for a wrongful forfeiture, because the county failed to comply with the notice requirements. Minn. Stat. § 281.23, subd. 5 (1994) provides:

Mailing of notice. Forthwith after the commencement of such publication, the county auditor shall cause the notice of expiration of redemption to be mailed by certified mail, return receipt requested, to all real property taxpayers and fee owners and in addition to those parties who have filed their addresses pursuant to section 276.041. Proof of such mailing shall be made by the certificate of the auditor filed in the auditor's office. Failure to receive the notice shall not operate to postpone or excuse any default.

Appellant contends that because the notice was mistakenly addressed to 503 W. County Road 3 instead of 503 W. County Road E, the notice was improper. But the record shows that the post office recognized the mistake and correctly delivered the notice to 503 W. County Road E where it was signed for and received by an employee of Terry Duggins, who customarily receives certified mail on his behalf.[1] Thus, the county properly complied with the notice requirements. Appellant further contends it is entitled to relief because it never actually received notice until two weeks before the auction sale. Actual receipt of the notice is not required by the statute. Franklin v. Hennepin County Dep't of Property Tax & Pub. Records, 486 N.W.2d 452, 454-55 (Minn. App. 1992) (holding that notice under Minn. Stat. § 281.23 does not require actual receipt of the notice, it only requires that notice be sent by certified mail, return receipt requested), review denied (Minn. Aug. 4, 1992). Moreover, the failure of Duggins' employee to give the notice to Duggins, and thus to appellant, was not a "material failure" of "any public officer or employee" that would entitle appellant to relief under Minn. Stat. § 284.28, subd. 7.

2. Other Claims

We find no merit in appellant's contention that respondent's second motion for summary judgment was procedurally improper. Appellant relies on old caselaw that has been superseded by Minn. R. Civ. P. 56.02 (providing that a party may move for summary judgment "at any time"). Furthermore, based on our holding in this case, we find no reason to address appellant's contention that respondent waived the defense that an unnamed third party caused appellant's loss.

Affirmed.

[1] Terry Duggins is the registered agent, president, and sole shareholder of appellant E.M.D. Construction Company.