McCullough and Sons, Inc. v. City of Vadnais Heights, A14-1992

STATE OF MINNESOTA

IN SUPREME COURT

A14-1992
A15-0064

Court of Appeals Stras, J.
Took no part, Hudson, Chutich, JJ.

McCullough and Sons, Inc.,

Appellant,

vs. Filed: August 10, 2016
Office of Appellate Courts
City of Vadnais Heights,

Respondent.

________________________

Mark Essling, North Branch, Minnesota; and

Andrew M. Essling, Essling Law Office, LLC, Scandia, Minnesota, for appellant.

Caroline Bell Beckman, James C. Erickson, Jr., Erickson, Bell, Beckman & Quinn, P.A.,
Roseville, Minnesota, for respondent.

Susan L. Naughton, League of Minnesota Cities, Saint Paul, Minnesota, for amicus curiae
League of Minnesota Cities.

_______________________

SYLLABUS

The court of appeals lacked jurisdiction over an appeal from an order denying

summary judgment.

1
 Dismissed, vacated, and remanded.

Considered and decided by the court.

OPINION

STRAS, Justice.

This case requires us to determine if, and under what circumstances, Minnesota’s

appellate courts have jurisdiction to review an order denying summary judgment to one of

the parties in a civil case. Here, the City of Vadnais Heights (“the City”) imposed an

assessment on real property owned by McCullough and Sons, Inc. (“McCullough”). On

appeal to the district court, the City filed a motion for summary judgment seeking dismissal

of the action based on McCullough’s failure to file a written objection to the proposed

assessment. The district court denied the City’s motion, but the court of appeals reversed.

McCullough & Sons, Inc. v. City of Vadnais Heights, 868 N.W.2d 721, 728 (Minn. App.

2015). Because the court of appeals lacked jurisdiction over the City’s appeal, we dismiss

the appeal, vacate the court of appeals’ decision, and remand to the district court.

I.

McCullough owns a 9-acre parcel located in the City of Vadnais Heights. The

parcel is contaminated by hazardous waste from a hospital that previously occupied the

site. Development of the property is not economically viable because the cost to remove

the waste exceeds the parcel’s value. McCullough currently uses the property to display

billboard signs, but the land is otherwise vacant. McCullough has been unable to find a

buyer for the property for the last 15 years.

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 In 2013, the City proposed a road-improvement project to serve a new commercial

development near McCullough’s parcel. The City informed McCullough through a written

notice that the proposed assessment for its share of the improvements was approximately

$158,000. The notice also stated that the Vadnais Heights City Council would discuss the

project and its funding at a hearing on July 17, 2014. James McCullough, a shareholder of

McCullough, attended the hearing and spoke against the proposed assessment, but the

company did not file or present a written objection. At the end of the hearing, the City

adopted the proposed assessment with one modification that is not relevant here.

In accordance with the requirements of Minn. Stat. § 429.081 (2014), McCullough

appealed the City’s decision by serving a notice of appeal upon the mayor of Vadnais

Heights and then filing a copy of the notice of appeal with the Ramsey County District

Court. Early in the litigation, the City filed a motion for summary judgment in which it

argued that McCullough was precluded from appealing because it had failed to file a

written objection with the “municipal clerk prior to the assessment hearing” or present a

written objection “to the presiding officer at the hearing.” Minn. Stat. § 429.061, subd. 2

(2014) (stating that “[n]o appeal may be taken as to the amount of any assessment” without

a written objection). The court denied the City’s motion, concluding that the statute did

not require McCullough to submit a written objection to the proposed assessment in order

to preserve its right to file an appeal.

The City appealed twice, once from the district court’s denial of its motion for

summary judgment and again after the court issued an order following an evidentiary

hearing in which it determined that McCullough had “perfected its appeal by objecting to

3
the special assessment.” 1 The court of appeals consolidated the two appeals. On the merits,

the court of appeals reversed the district court, holding that a party opposed to a proposed

assessment must object in writing before or at the assessment hearing to preserve its right

to appeal the assessment to the district court. McCullough, 868 N.W.2d at 727; see also

Minn. Stat. §§ 429.061, subd. 2, 429.081 (2014) (requiring a “written objection” to appeal

the amount of an assessment).

After granting McCullough’s petition for review but before holding oral argument,

we issued an order asking the parties to be prepared to discuss whether the district court’s

order denying summary judgment was immediately appealable. McCullough & Sons, Inc.

v. City of Vadnais Heights, Nos. A14-1992, A15-0064, Order (Minn. filed Jan. 28, 2016).

McCullough then submitted a supplemental memorandum along with a motion asking us

to accept the filing. Following oral argument, we granted McCullough’s motion, but did

not address its argument that appellate jurisdiction over the case is lacking. We also gave

the City the option to respond in writing to McCullough’s supplemental memorandum,

which it did by arguing in its own memorandum that jurisdiction exists over the appeal.

McCullough & Sons, Inc. v. City of Vadnais Heights, Nos. A14-1992, A15-0064, Order

(Minn. filed Feb. 3, 2016).

II.

This case has multiple jurisdictional layers. The question that the parties initially

1
In addition to finding that McCullough had objected to the assessment, the court’s
order following the evidentiary hearing also denied permission to the City to file a motion
to reconsider the denial of summary judgment.

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asked us to address, which was also the subject of the court of appeals’ decision, is whether

the written-objection requirement in Minn. Stat. § 429.061 is a jurisdictional limitation on

Minnesota’s district courts. Before we can answer the jurisdictional question presented by

the parties, however, we must determine whether the City’s appeal was taken from a final

judgment of the district court, which we have described as a jurisdictional limitation on

Minnesota’s appellate courts. See T.A. Schifsky & Sons, Inc. v. Bahr Constr., LLC, 773

N.W.2d 783, 788 (Minn. 2009) (discussing the “final judgment” requirement). This case

therefore presents the unusual situation in which the answer to the parties’ question about

the district court’s subject-matter jurisdiction hinges upon the antecedent question of

whether the court of appeals properly exercised jurisdiction over the City’s appeal.

A.

Jurisdiction refers to a court’s “power to hear and decide disputes.” State v. Smith,

421 N.W.2d 315, 318 (Minn. 1988). Whether a court has subject-matter jurisdiction “to

hear and determine a particular class of actions and the particular questions” presented

generally depends on the scope of the constitutional and statutory grant of authority to the

court. See Robinette v. Price, 214 Minn. 521, 526, 8 N.W.2d 800, 804 (1943); see also

Giersdorf v. A & M Constr., Inc., 820 N.W.2d 16, 20 (Minn. 2012) (“Subject matter

jurisdiction is a court’s ‘statutory or constitutional power to adjudicate the case.’ ” (quoting

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998))). In Minnesota, however,

court rules can also define subject-matter jurisdiction, including, for example, the

requirement that an appeal in a civil case be taken from a final judgment. See T.A. Schifsky

& Sons, 773 N.W.2d at 788 (referring to the final-judgment requirement in Minn. R. Civ.

5
App. P. 104.01, subd. 1, as jurisdictional); see also State v. Barrett, 694 N.W.2d 783, 786

(Minn. 2005) (holding that the requirement in Minn. R. Crim. P. 28.04, subd. 2(2) that a

prosecutor must serve the State Public Defender with notice of a pretrial appeal is

jurisdictional).

Courts can question subject-matter jurisdiction at any time, even if the parties to a

case have not done so. See Seehus v. Bor-Son Constr., Inc., 783 N.W.2d 144, 147 (Minn.

2010) (stating that subject-matter jurisdiction cannot be waived by the parties). Our

authority to consider subject-matter jurisdiction extends to whether the court of appeals

had jurisdiction to decide the appeal. See Dead Lake Ass’n, Inc. v. Otter Tail Cty., 695

N.W.2d 129, 134 (Minn. 2005) (describing the court of appeals’ jurisdiction as presenting

a “threshold question”).

B.

The threshold question for us, which the parties had an opportunity to brief in their

supplemental memoranda, is whether the district court’s order in this case falls within one

of the categories of orders that are immediately appealable to the court of appeals under

Minn. R. Civ. App. P. 103.03. Rule 103.03 allows an immediate appeal in a variety of

circumstances, but the parties focus first on paragraph (a), which states that “[a]n appeal

may be taken to the Court of Appeals . . . from a final judgment, or from a partial judgment

entered pursuant to Minn. R. Civ. P. 54.02.” The record does not contain an order entering

partial judgment under Rule 54.02, and the parties do not contend otherwise.

The district court’s order denying summary judgment to the City was also not a

“final judgment” because it did not “end[] the litigation on the merits.” T.A. Schifsky &

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Sons, Inc., 773 N.W.2d at 788 (quoting Riley v. Kennedy, 553 U.S. 406, 419 (2008)).

During the summary-judgment hearing, the district court explained that it denied summary

judgment because the factfinder could reasonably conclude that Mr. McCullough’s

statements and actions at the City Council hearing were sufficient to meet the requirements

of Minn. Stat. § 429.081. The court then made clear that its ruling was not final when it

immediately turned to other pending matters in the case, including its decision to defer

ruling on the constitutionality of the special assessment. The second order, which

addressed a motion for reconsideration and the sufficiency of McCullough’s objection, also

did not end the litigation on the merits. On this record, there is no question that the district

court’s rulings on the various motions were not a “final judgment.”

Indeed, Minn. R. Civ. App. P. 103.03(i) recognizes that orders like these are

interlocutory because it requires that, before a party can appeal a denial of summary

judgment, district courts must first certify that the “question presented is important and

doubtful.” The district court did not certify that the requirements of Minn. Stat. § 429.081

presented any “important and doubtful” questions, so Minn. R. Civ. App. 103.03(i) also

does not provide a basis for the City’s appeal. See Kastner v. Star Trails Ass’n, 646 N.W.2d

235, 238 (Minn. 2002).

Nor was the order denying the City’s motion for summary judgment immediately

appealable under Minn. R. Civ. App. P. 103.03(g), which permits a party to appeal from

“a final order, decision or judgment affecting a substantial right made in an administrative

or other special proceeding.” To be sure, we have held that an appeal to a district court

from a special assessment qualifies as a “special proceeding” under Rule 103.03(g).

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Marzitelli v. City of Little Canada, 582 N.W.2d 904, 905-06 (Minn. 1998). Even so, the

City’s appeal was premature because it did not involve a final order, decision, or judgment

that “end[ed] the proceedings as far as the [district] court was concerned,” In re Estate of

Janecek, 610 N.W.2d 638, 642 (Minn. 2000), or that “finally determine[d] some positive

legal right” belonging to the City, id. (quoting Weinzierl v. Lien, 296 Minn. 539, 540, 209

N.W.2d 424, 424 (1973)). Rather, as stated above, the district court’s denial of summary

judgment reflected its conclusion that there were genuine issues of material fact remaining

for trial with respect to whether McCullough’s words and actions at the City Council

hearing satisfied the requirements of Minn. Stat. §§ 429.061, .081. Thus, even if the

written-objection requirement qualifies as a “positive legal right” belonging to the City, the

district court’s interlocutory decision did not finally determine it. See id.

C.

The City’s supplemental memorandum focuses primarily on Minn. R. Civ. App. P.

103.03(j), the catchall provision, which allows a party to appeal “from such other orders or

decisions as may be appealable by statute or under the decisions of the Minnesota appellate

courts.” In cases in which we have allowed an appeal to proceed under Rule 103.03(j),

“the right to appeal is derived not from procedural rules, but from fundamental principles

relating to the finality of judgments.” Kastner, 646 N.W.2d at 238.

Fundamental principles of finality led us to adopt the collateral-order doctrine,

which recognizes a small class of decisions that are immediately appealable prior to the

entry of final judgment. See id. at 239. For an order to be immediately appealable under

the collateral-order doctrine, it must “(1) conclusively determine the disputed question,

8
(2) resolve an important issue completely separate from the merits of the action, and (3) be

effectively unreviewable on appeal from a final judgment.” Id. at 240.

In this case, the district court’s order denying summary judgment to the City

arguably satisfies the first requirement, may satisfy the second requirement, but does not

satisfy the third requirement. To meet the first requirement, a decision cannot be “tentative,

informal or incomplete.” Swint v. Chambers Cty. Comm’n, 514 U.S. 35, 42 (1995) (quoting

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)). In this case, the district

court made no indication that it intended to reconsider its ruling on the City’s summary-

judgment motion by designating the decision as “without prejudice” or “subject to

revision,” which suggests that the order was a conclusive determination on the City’s

summary-judgment motion.

Whether the district court’s order meets the second requirement of the collateral-

order doctrine is a closer question. An order satisfies the second requirement when it

“raises a question that is significantly different from the questions underlying [the]

plaintiff’s claims on the merits.” Johnson v. Jones, 515 U.S. 304, 314 (1995). Although

the application of the written-objection requirement in Minn. Stat. § 429.061 is analytically

distinct from whether the City’s assessment is “invalid and void” because it constitutes an

unconstitutional taking, it is debatable whether the written-objection requirement is

completely separate from the merits of McCullough’s claim. After all, the written-

objection requirement, whatever its specific obligations, contemplates that any challenges

to the assessment, including those that will later be asserted in litigation, will first be

presented to the City.

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 Even if the district court’s order denying summary judgment satisfies the first and

second requirements, however, it does not satisfy the third. Under the third requirement,

we must determine whether the right asserted is “adequately vindicable” or “effectively

reviewable” after final judgment. See Digital Equip. Corp. v. Desktop Direct, Inc., 511

U.S. 863, 878 (1994). The focus is on the “substance of the rights entailed, rather than the

advantage to a litigant in winning his [or her] claim sooner.” Van Cauwenberghe v. Biard,

486 U.S. 517, 524 (1988) (quoting United States v. MacDonald, 435 U.S. 850, 860 n.7

(1978)). Although the City would gain an advantage by receiving a definitive ruling on

the written-objection requirement before litigating the validity of the assessment, the court

of appeals can just as easily interpret and apply the written-objection requirement in an

appeal following final judgment, when it has a more complete “record that will permit a

better decision.” Johnson, 515 U.S. at 316-17.

D.

Rather than analyzing the district court’s order under the three requirements of the

collateral-order doctrine, the City analogizes the written-objection requirement in Minn.

Stat. § 429.061 to two other situations in which we have recognized the availability of an

immediate appeal. First, we have allowed interlocutory appeals from the denial of motions

requesting the dismissal of an action due to a lack of subject-matter jurisdiction. See

McGowan v. Our Savior’s Lutheran Church, 527 N.W.2d 830, 833 (Minn. 1995). Second,

we have permitted parties to immediately appeal the denial of a claim of immunity. See

Kastner, 646 N.W.2d at 238-39.

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 1.

The first class of cases in which we have recognized a right to an immediate appeal

is when a district court denies a motion seeking dismissal of an action for lack of subject-

matter jurisdiction. See, e.g., McGowan, 527 N.W.2d at 833. For such cases, the existence

of appellate jurisdiction depends on whether the underlying motion challenged the district

court’s subject-matter jurisdiction.

McGowan involved a plaintiff who suffered a sexual assault at her place of

employment, a homeless shelter operated by a church. See id. at 832. The church moved

to dismiss the negligence action arising out of the assault, arguing that the district court

lacked subject-matter jurisdiction because the plaintiff’s injury was subject to the

Minnesota Workers’ Compensation Act. See id. at 831-32. We concluded that the court’s

interlocutory decision was immediately appealable because, “if the [plaintiff’s] claim f[ell]

within the scope of the Workers’ Compensation Act[,] the district court [was] without

jurisdiction to proceed further.” Id. at 833. In ultimately ordering the dismissal of the

plaintiff’s claim, we emphasized that the church’s motion raised a genuine challenge to the

district court’s subject-matter jurisdiction. See id. (“Where the Act provides the

employee’s exclusive remedy, the district courts have no jurisdiction.”).

Under McGowan, the district court’s order denying summary judgment in this case

was immediately appealable if the City’s motion raised a genuine challenge to the district

court’s subject-matter jurisdiction. This means that, if the written-objection requirement

in Minn. Stat. § 429.061 is a jurisdictional limitation on the adjudicative authority of

Minnesota’s district courts, then the court of appeals did not err when it heard the City’s

11
appeal. If, however, the written-objection requirement is nothing more than a non-

jurisdictional “claim-processing rule,” then the rule from McGowan did not provide

authority for the City’s immediate interlocutory appeal. See Kontrick v. Ryan, 540 U.S.

443, 453-56 (2004) (describing the differences between “claim-processing rules” and

“jurisdictional” rules).

Minnesota’s district courts have both the statutory and constitutional authority to

decide assessment appeals like the one filed by McCullough. The Minnesota Constitution

grants district courts “original jurisdiction in all civil and criminal cases and . . . appellate

jurisdiction as prescribed by law.” Minn. Const. art. VI, § 3. The statute under which

McCullough filed the appeal, Minn. Stat. § 429.081, provides that

[w]ithin 30 days after the adoption of the assessment, any person aggrieved,
who is not precluded by failure to object prior to or at the assessment hearing,
or whose failure to so object is due to a reasonable cause, may appeal to the
district court by serving a notice upon the mayor or clerk of the municipality.

Clearly, this statute places appeals from assessments within the “classes of cases” over

which district courts have “adjudicatory authority,” Kontrick, 540 U.S. at 455; see also

Giersdorf, 820 N.W.2d at 20 (stating that subject-matter jurisdiction is the court’s statutory

and constitutional authority to hear a “particular class of actions” (quoting Robinette, 214

Minn. at 526, 8 N.W.2d at 804)). The question remains whether the statute’s reference to

the “failure to object” makes the written-objection requirement part of the statute’s grant

of subject-matter jurisdiction to district courts.

Generally, rules of this type can fall into two categories: “claim-processing rules”

and “jurisdictional requirements.” The key distinction between these two categories is that

12
jurisdictional requirements “cannot be expanded to account for the parties’ litigation

conduct,” Kontrick, 540 U.S. at 456, whereas claim-processing rules “assure relief [for the]

party properly raising them, but do not compel the same result if the party forfeits them,”

Eberhart v. United States, 546 U.S. 12, 19 (2005).

The written-objection requirement is set forth in Minn. Stat. § 429.061, subd. 2,

which specifies that

[n]o appeal may be taken as to the amount of any assessment adopted under
this section unless a written objection signed by the affected property owner
is filed with the municipal clerk prior to the assessment hearing or presented
to the presiding officer at the hearing. All objections to the assessments not
received at the assessment hearing in the manner prescribed by this
subdivision are waived, unless the failure to object at the assessment hearing
is due to a reasonable cause.

Of particular significance, the two statutes, Minn. Stat. § 429.061 and Minn. Stat.

§ 429.081, use the terms “waive[r]” and “preclu[sion]” in conjunction with the objection

requirement, which is inconsistent with the expression of a requirement that limits the

adjudicatory authority of district courts. The use of the word “waived” in both

statutes casts substantial doubt on the City’s argument that the written-objection

requirement is jurisdictional. Cf. Rubey v. Vannett, 714 N.W.2d 417, 422 (Minn. 2006)

(“[S]ubject matter jurisdiction cannot be waived.”).

Even more significantly, there is an exception to the written-objection requirement

for parties whose “failure to object at the assessment hearing is due to a reasonable cause.”

Minn. Stat. § 429.061, subd. 2. A rule that allows a case to proceed only if one of the

parties has “reasonable cause” for the failure to discharge a statutory requirement is

inconsistent with a jurisdictional requirement because a court’s adjudicatory authority

13
“cannot be expanded to account for the parties’ litigation conduct.” Kontrick, 540 U.S. at

456. Rather, such a rule, by its very nature, “promote[s] the orderly progress of litigation

by requiring that the parties take certain procedural steps at certain specified times,” which

is one of the hallmarks of a claim-processing rule. Henderson ex rel. Henderson v.

Shinseki, 562 U.S. 428, 435 (2011). Indeed, the City does not cite a single case in which

we have characterized a statute that allows a party’s conduct to excuse its failure to comply

with a statutory condition as a jurisdictional requirement. 2

Our conclusion in this case is consistent with Rubey, 714 N.W.2d at 419, in which

we addressed a rule that required district courts to hold a hearing on a motion for a new

trial within 60 days after service of the notice of the filing of a decision or order. The rule

included a provision that permitted the court to extend the time for a hearing “for good

cause shown.” Id. at 420 (quoting Minn. R. Civ. P. 59.03). Relying on Eberhart’s

2
In State ex rel. City of Minneapolis v. Boucher, a condemnation case, we stated,
without any analysis or discussion, that if “the conditions to the right of appeal are not
observed, the court does not acquire jurisdiction.” 171 Minn. 297, 300, 214 N.W. 30, 31
(1927). In that case, the property owner had failed to file objections to the amount of
proposed damages at least one week before a city-council hearing. Id. at 298-99, 214 N.W.
at 31. Despite the factual similarities between this case and Boucher, it is significant that
the statute in Boucher did not contain the two characteristics that lead us to conclude here
that the written-objection requirement is not jurisdictional. First, the statute did not state
that the failure to make an objection constituted “waive[r]” and that it “precluded” the
property owner from bringing a case in district court. Second, the statute did not contain
an exception that turned on the conduct of the property owner. Moreover, when we
referenced jurisdiction in Boucher, it is just as likely that we were concluding that the
property’s owner case could not go forward under the statute as it was that we were saying
the court did not have the adjudicatory authority to hear the case. See Kontrick, 540 U.S.
at 454 (noting that “[j]urisdiction . . . is a word of many, too many, meanings”) (quoting
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 90 (1998)); Rubey, 714 N.W.2d at 421
(noting that our case law on jurisdiction “has, at best, been confusing”). For these reasons,
Boucher does not control the outcome here.

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discussion of the differences between claim-processing rules and jurisdictional

requirements, we held that the 60-day limit was a “procedural tool” that did not “divest the

district court of jurisdiction.” Id. at 422; see also In re Giem, 742 N.W.2d 422, 427 (Minn.

2007) (noting that Rubey “discussed the difference between deadlines as procedural tools

and deadlines operating as jurisdictional limits”). We noted, consistent with our analysis

of the written-objection requirement, that the parties cannot waive a subject-matter

jurisdiction requirement. See Rubey, 714 N.W.2d at 421-22. Accordingly, Rubey supports

our conclusion in this case that the written-objection requirement is a claim-processing rule

rather than a jurisdictional requirement.

The City relies on two other cases, Andrusick v. City of Apple Valley, 258 N.W.2d

766 (Minn. 1977) and In re Skyline Materials, Ltd., 835 N.W.2d 472 (Minn. 2013), to

support its view that McCullough’s failure to file or present a written objection deprived

the district court of subject-matter jurisdiction over McCullough’s appeal. Andrusick and

Skyline Materials both involved dismissals of appeals from local governmental decisions,

one involving a county board of adjustment and the other a city council. We ordered the

dismissal of both cases because the landowners had failed to serve the governmental

entities in accordance with a statutory requirement in one case, see Andrusick, 258 N.W.2d

at 766, 768, and the Minnesota Rules of Civil Procedure in the other, see In re Skyline

Materials, 835 N.W.2d at 473, 477. Although both opinions used the term “jurisdiction”

15
to refer to the inadequate service of process, neither involved subject-matter jurisdiction. 3

Rather, as we have long held, service of process is the means by which a court obtains

personal jurisdiction over a defendant because, unlike subject-matter-jurisdiction defects,

parties can waive personal-jurisdiction defects such as inadequate service of process. See

Shamrock Dev., Inc. v. Smith, 754 N.W.2d 377, 381-82 (Minn. 2008); Patterson v. Wu

Family Corp., 608 N.W.2d 863, 866-67 (Minn. 2000). Accordingly, neither Andrusick nor

Skyline Materials addresses whether to classify a statutory obligation like the one in this

case as a claim-processing rule or a jurisdictional requirement. We therefore rely on Rubey

to conclude that the written-objection requirement is a claim-processing rule that does not

give rise to the right to an immediate interlocutory appeal under McGowan.

2.

The second class of cases in which we have recognized a right to an immediate

appeal is the denial of a motion seeking immunity. Relying on precedent from the Supreme

Court of the United States, we recognized the right to an immediate appeal of immunity

decisions in Kastner, 646 N.W.2d at 238-39, which involved a non-profit defendant that

sought recreational-use immunity and governmental immunity as a recipient of trail funds

3
To be sure, Skyline Materials used the phrase “subject-matter jurisdiction,” once to
characterize the nature of our dismissal of the case, another time to describe how the City
had labeled its motion, and a third time in a parenthetical to the Andrusick case. Skyline
Materials, 835 N.W.2d at 473, 474, 478. We are skeptical, however, that the isolated
references to subject-matter jurisdiction in Skyline Materials were anything more than an
oversight on our part. After all, Skyline Materials did not purport to overrule our long line
of decisions treating insufficient service of process as a defect relating to personal
jurisdiction, not subject-matter jurisdiction. In any event, Rubey is the most directly
analogous case, not Andrusick or Skyline Materials, because it is undisputed in this case
that McCullough properly served its notice of appeal on the City’s mayor.

16
from the Minnesota Department of Natural Resources. Id. at 236. The rationale for

allowing an immediate appeal was the nature of immunity itself, which we characterized

as a “right not to stand trial at all—a right that is lost if the case is permitted to proceed.”

See id. at 239 (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).

The City analogizes the written-objection requirement to immunity from suit,

asserting that it should not have to defend an assessment when McCullough has failed to

satisfy a clear statutory prerequisite for bringing his appeal in district court. But this is

precisely the argument that the party that loses a dispositive motion makes in every case in

which an interlocutory appeal is unavailable. The party claims that its inability to

immediately appeal an allegedly winning argument deprives it of a substantial right.

However, unlike immunity, which is “a right that is lost if the case is permitted to proceed,”

we have already concluded that the question of whether McCullough satisfied the written-

objection requirement is something that the court of appeals can consider after the district

court enters final judgment. In fact, if anything, the text of Minn. Stat. § 429.081 belies

the analogy to immunity because, by recognizing a right for the landowner to appeal an

assessment decision, the Legislature has subjected municipalities to suit for assessment

decisions, not shielded them from it.

The Supreme Court reached a similar conclusion in a case involving a statutory

judgment bar. In Will v. Hallock, the Court considered whether an earlier unsuccessful

action against the United States constituted a judgment bar against individual government

agents who had committed a tortious act. 546 U.S. 345, 348 (2006). The agents moved

for judgment on the pleadings based on a provision of the Federal Tort Claims Act that

17
made the prior judgment “a complete bar to any action by the claimant, by reason of the

same subject matter, against the employee of the government whose act or omission gave

rise to the claim.” Id. at 348 (quoting 28 U.S.C. § 2676 (2012)). The district court denied

the agents’ motion and the United States Court of Appeals for the Second Circuit affirmed.

Id. at 348-49. The Supreme Court vacated the Second Circuit’s decision and instructed the

Second Circuit to dismiss the appeal. Id. at 355.

The Court’s analysis recognized that not every “order denying a claim of right to

prevail without trial” necessarily falls within the collateral-order doctrine. Id. at 351.

Otherwise, the Court observed, “almost every pretrial or trial order might be called

effectively unreviewable in the sense that relief from error can never extend to rewriting

history.” Id. at 351 (quoting Digital Equip., 511 U.S. at 872) (internal quotation marks

omitted). The Court therefore drew a distinction between those cases that involve “mere

avoidance of a trial” and those in which “avoidance of a trial” serves “some substantial

public interest.” Id. at 353. Such substantial public interests, according to the Court,

include “honoring the separation of powers, preserving the efficiency of government and

the initiative of its officials, respecting a State’s dignitary interests, and mitigating the

government’s advantage over the individual.” Id. at 352-53.

Despite the fact that the action in Will arguably duplicated an earlier lawsuit, the

Court declined to treat the judgment bar as comparable to immunity. In this case, even less

is at stake than in Will. This case does not involve the separation of powers, the efficiency

of City officials, or even duplicative litigation. Rather, the City just seeks the “mere

avoidance of a trial” unaccompanied by a substantial public interest. Accordingly, in light

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of Will, we decline to treat the written-objection requirement as analogous to a claim of

immunity.

III.

For the foregoing reasons, we dismiss this appeal, vacate the court of appeals’

decision, and remand to the district court for further proceedings consistent with this

opinion.

Dismissed, vacated, and remanded.

HUDSON, J., took no part in the consideration or decision of this case.

CHUTICH, J., not having been a member of this court at the time of submission,

took no part in the consideration or decision of this case.

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