City of Eagan, petitioner, Appellant, vs. Carl Richard Olson, et al., Respondents.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA
IN COURT OF APPEALS
CO-98-356

City of Eagan, petitioner,
Appellant,

vs.

Carl Richard Olson, et al.,
Respondents.

Filed September 8, 1998

Affirmed
Toussaint, Chief Judge

Dakota County District Court
File No. C2979672

Robert B. Bauer, Michael G. Dougherty, Severson, Sheldon, Dougherty & Molenda, P.A., 7300 West 147th Street, Apple Valley, MN 55124 (for appellant)

Larry D. Martin, Daniel W. Voss, Larkin, Hoffman, Daly & Lindgren, Ltd., 1500 Norwest Financial Center, 7900 Xerxes Avenue South, Bloomington, MN 55431-1194 (for respondents)

Considered and decided by Toussaint, Chief Judge, Harten, Judge and Norton, Judge.*

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

Appellant City of Eagan (the City) challenges a district court order denying its motion to dismiss respondents Carl R. Olson and Richard T. Burger's appeal from a commissioner's award of damages for the taking of private property. Because the district court did not err in concluding that notice requirements of Minn. Stat. § 117.145 (1996) were met, we affirm.

D E C I S I O N

The construction of a statute is a question of law and thus fully reviewable by an appellate court. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985). A reviewing court is not bound by and need not give deference to a trial court's decision on a purely legal issue. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W. 639, 642 (Minn. 1984).

The City argues that the district court erred in failing to dismiss Olson and Burger's claim for lack of subject matter jurisdiction. When appealing to the district court from a Commissioner's award, notice requirements are considered jurisdictional in nature. In re Condemnation by HRA v. Suh, 553 N.W.2d 115, 117 (Minn. App. 1996), review denied (Minn. Nov. 20, 1996). Jurisdiction over the appeal may not be had by a district court where there has been noncompliance with the statutory prerequisites. Id.

Minn. Stat. § 117.145 (1996) provides in part:

[a]t 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.

Minn. Stat. § 117.115, subd. 2 (1996) requires:

[w]ithin ten days after the date of the filing of the report of commissioners, the petitioner shall notify the following listed persons, by mail* * *(1) each respondent listed in the petition as having an interest in any parcel described in the report; (2) each other party to the proceeding whose appearance has been noted by the court in its order approving the petition* * *; (3) each respondent's attorney. * * * The petitioner shall file * * * an affidavit of mailing of the notice.

The City argues that it became a respondent when Olson and Burger exercised their rights to appeal, and thus it was entitled to notice under section 117.145. However, Olson and Burger the landowners were respondents below in this eminent domain action. The City was petitioner in the proceedings below and as petitioner was responsible for filing notice under section 117.115. The City was not listed on its petitioner's affidavit of mailing. The district court correctly concluded that the notice requirements of section 117.145 were met because Olson and Burger served notice of appeal on all parties listed in the petitioner's affidavit of mailing.

To the extent that the city as a party had a right to be served with notice of the appeal in order to respond to that proceeding, service on the city's attorney was proper. See Minn. R. Civ. P.5.01 (service on party required); 5.02 (service shall be made on party's attorney). Accord State v. Scientific Computers, Inc., 388 N.W.2d 748 (Minn. 1986)(reversing this court's determination that service on an agency's counsel did not constitute proper service of a writ of certiorari).

Affirmed.

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