Opinion
No. A03-983.
Filed March 9, 2004.
Appeal from the District Court, Hennepin County, File No. MC0219384.
Richard G. Nadler, (for appellant)
Andrew D. Parker, Nancy V. Mate, Smith Parker, P.L.L.P., (for respondent)
Considered and decided by Anderson, Presiding Judge, Stoneburner, Judge, and Hudson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Appellant Brian Sinykin, a veteran whose termination from probationary employment with respondent Metro Councils Transit Operations was upheld after a hearing, challenges the district court's dismissal of his appeal to district court for insufficient service of process. Because the district court did not err in concluding that appeals to district court under the Veterans Preference Act, Minn. Stat. § 197.46 (2002), are governed by the Minnesota Rules of Civil Procedure, we affirm.
FACTS
Appellant is a veteran entitled to the protections of the Veterans Preference Act (VPA), which provides that a veteran may only be removed from public employment after a hearing and a showing of misconduct or incompetence. Minn. Stat. § 197.46 (2002). After a hearing examiner upheld appellant's termination from his probationary employment with respondent Metro Councils Transit Operations (Metro Transit), appellant attempted to appeal to the district court. Under the VPA, a veteran may appeal an unfavorable decision to the district court "by causing written notice of the appeal, to be served upon the governmental subdivision or officer making the charges . . ." Id. Appellant served a notice of appeal on the attorney who represented Metro Transit before the hearing examiner, but did not personally serve anyone at Metro Transit. Metro Transit responded, noting its intention to move for a dismissal. Two days later, Metro Transit moved to dismiss or for summary judgment based on insufficient service of process under Minn. R. Civ. P. 4.03. The district court granted Metro Transit's motion to dismiss for failure to comply with the service requirements of Minn. R. Civ. P. 4.03, and dismissed appellant's action with prejudice. The district court did not reach the merits of appellant's claim.
Disputes under the VPA involving a governmental subdivision with no established civil service board or commission are generally heard by a three-person panel. Minn. Stat. § 197.46. In this case, appellant requested, and Metro Transit agreed, to have a single neutral hearing examiner review the dismissal.
DECISION
Appellant argues that appeals to the district court under the VPA are governed by the rules of civil appellate procedure, not the rules of civil procedure, and that personal service on the attorney who represented Metro Transit complied with Minn. Stat. § 197.46, because the attorney was an "officer making the charges" as set forth in the statute. We disagree.
Statutory construction and the existence of personal jurisdiction are questions of law, which this court reviews de novo. Ryan Contracting, Inc. v. JAG Inv., Inc., 634 N.W.2d 176, 181 (Minn. 2001). Statutory provisions for service of notice must be strictly construed for a court to acquire jurisdiction. Lebens v. Harbeck, 308 Minn. 433, 434, 243 N.W.2d 128, 129 (1976). Absent personal service of process, a court ordinarily may not exercise jurisdiction over a defendant. Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350, 119 S.Ct. 1322, 1327 (1999). Actual notice of a lawsuit will not subject a defendant to personal jurisdiction of the court absent substantial compliance with the requirements of personal service of process in the rules of civil procedure. Nieszner v. St. Paul School Dist. No. 625, 643 N.W.2d 645, 649 (Minn. App. 2002).
Appellant argues that the rules of civil appellate procedure apply to his appeal to the district court, and that the district court erred by applying the rules of civil procedure. Under Minn. R. Civ. App. P. 125.03, service may be personal or by mail and includes "delivery of a copy of the document to the attorney . . ."
Appellant relies on Savre v. Indep. Sch. Dist. No. 283. 642 N.W.2d 467, 470 (Minn. App. 2002). In Savre, this court held that the rules of civil appellate procedure apply to appeals by writ of certiorari to the court of appeals. Id. But the VPA provides for appeal to the district court rather than appeal to this court by writ of certiorari. And the rules of civil appellate procedure specifically govern procedure in the appellate courts. Minn. R. Civ. App. P. 101.01. Savre, therefore, is distinguishable, and does not apply to appellant's appeal to district court.
This court recently held that Minn. R. Civ. P. 4.03 governs service of an appeal under the VPA. Neiszner, 643 N.W.2d at 650. Neiszner mailed the notice of appeal from an adverse civil service commission decision under the VPA to the defendant rather than personally serving the defendant, and we affirmed the dismissal of his appeal based on lack of personal jurisdiction. Id. at 647. Because the rules of civil appellate procedure apply only to appeals to the appellate courts, and because Neiszner clearly provides that appeals to district court under the VPA are governed by the rules of civil procedure, we conclude that appellant's argument, that service on Metro Transit's attorney was sufficient because it complies with the rules of civil appellate procedure, is without merit.
We also reject appellant's argument that service on Metro Transit's attorney was sufficient under Minn. Stat. § 197.46, because the attorney was the "officer making the charges," as without authority and contrary to the plain language of the statute.
For the first time on appeal, appellant argues that Metro Transit waived its right to challenge the sufficiency of service. Generally, appellate courts will not consider issues that were not presented to the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). Even if we were to consider this issue, however, the record does not support appellant's argument for waiver. Metro Transit did not affirmatively invoke the district court's power to determine the merits of any part of the claim prior to challenging jurisdiction. Patterson v. Wu Family Corp., 608 N.W.2d 863, 869 (Minn. 2000) (concluding once a defendant affirmatively invokes court's power to determine the merits of all or part of a claim, defendant cannot deny court's jurisdiction over him based on defective service).
Because we affirm the district court's dismissal of appellant's appeal to the district court, we do not reach the merits of appellant's challenge to his dismissal by Metro Transit.