Cottage Homesteads of America, Inc., et al., Appellants, vs. Kathleen Zimniewicz, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-978

 

Cottage Homesteads of America, Inc., et al.,

Appellants,

 

vs.

 

Kathleen Zimniewicz,

Respondent.

 

Filed December 7, 2004

Affirmed; motions denied
Klaphake, Judge

 

Dakota County District Court

File No. C9-04-006790

 

Paul L. Ratelle, Michael A. Rosow, Fabyanske, Westra & Hart, P.A., 800 LaSalle Avenue, Suite 1900, Minneapolis, MN  55402 (for appellants)

 

Mark Essling, 1994 Rum River Drive S.E., Cambridge, MN  55008 (for respondent)

 

            Considered and decided by Klaphake, Presiding Judge, Harten, Judge, and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellants Cottage Homesteads of America, Inc., a Minnesota corporation, and Cottage Homesteads of Minnesota II, Inc., a Minnesota corporation, challenge the district court's decision confirming an arbitration award in favor of respondent Kathleen Zimniewicz.  Because appellants never served or noticed any motion to vacate, as required by Minn. Stat. §§ 572.19, .23 (2002), the district court was limited to confirming the arbitration award.  We therefore affirm the confirmation of the award.

D E C I S I O N

            Under Minn. Stat. § 572.19, subd. 2 (2002), an application to vacate an arbitration award must be "made within 90 days after delivery of a copy of the award to the applicant."  Expiration of the 90-day period precludes any challenge to the award.  Great Am. Ins. Co. v. LeMieux, 439 N.W.2d 733, 735 (Minn. App. 1989), review denied (Minn. July 12, 1989).

            Here, a copy of the arbitration award was delivered to appellants on December 5, 2003, when it was received by their attorney in the mail.  Appellants delivered a complaint and application to vacate the award to the sheriff's office on March 1, 2004.  The complaint and application were personally served on respondent on the 90th day, March 4, 2004.  Appellants, however, never brought a formal motion to vacate the award.  A hearing was scheduled on respondent's motion to confirm the award, which was served on March 5, 2004.  Following the hearing, the district court issued an order confirming the award.

            The district court found that appellants' application to vacate the award was timely.  But Minn. Stat. § 572.23 (2002) requires that an application "shall be [made] by motion and shall be heard in the manner and upon the notice provided by law or rule of [the] court for the making and hearing of motions."  Minn. Stat. §§ 572.19, .23 have been construed to require service of a motion to vacate an arbitration award within 90 days; service of an application to vacate is insufficient.  See, e.g., Haekenkamp v. Allstate Ins. Co., 265 N.W.2d 821, 824 (Minn. 1978); Wacker v. Allstate Ins. Co., 312 Minn. 242, 248-49, 251 N.W.2d 346, 349-50 (1977); Component Sys., Inc. v. Murray Enters. of Minn., Inc., 300 Minn. 21, 24-25, 217 N.W.2d 514, 516 (1974).  While appellants may have served a complaint and application to vacate within the 90-day period, they never served and noticed a formal motion to vacate.  Appellants' application to vacate the award was therefore untimely.

            Respondent has also filed two motions on appeal,[1] including a motion to dismiss for lack of subject matter jurisdiction.  Although we are precluded from considering the grounds asserted by appellants in their application to vacate the arbitration award, we continue to have jurisdiction over the district court's decision to grant respondent's motion to confirm the award.  The district court's decision, however, was limited to confirmation of the award.  See Minn. Stat. § 572.18 (2002) ("Upon application of a party, the court shall confirm an award, unless within the time limits hereinafter imposed grounds are urged for vacating or modifying or correcting the award, in which case the court shall proceed as provided in sections 572.19 and 572.20."); Abd Alla v. Mourssi, 680 N.W.2d 569, 572-73 (Minn. App. 2004) (holding that district court's jurisdiction is limited to confirmation of award unless motion to vacate is filed within time limits prescribed by arbitration statutes).  We therefore deny respondent's motion to dismiss this appeal and affirm the district court's confirmation of the arbitration award.

            Affirmed; motions denied.

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

[1] Respondent also moved to strike portions of appellants' reply brief, which contain copies of and references to a complaint and a district court order and memorandum in another case.  This court may take judicial notice of a court's records and files from other legal proceedings.  See Minn. R. Evid. 201 (allowing court to take judicial notice of any fact generally known or capable of accurate determination); Smisek v. Comm'r of Pub. Safety, 400 N.W.2d 766, 768 (Minn. App. 1987) (taking judicial notice on appeal of court document in related proceeding).  We therefore deny respondent's motion to strike.