Roehrdanz v. Brill

LANSING, Judge

(dissenting).

The dispositive question in this case is how to serve an appeal from a conciliation court decision. George Roehrdanz served Toby Brill by first class mail with a demand for removal to district court. The majority concludes that the notice of removal or appeal is ineffective because Roehrdanz was required to serve Brill under Rule 4.05 of the Minnesota Rules of Civil Procedure. I respectfully disagree. The conciliation court rules allow the notice for removal to be served by first class mail. Minn. R. Gen. Pract. 521(b)(1). Roehrdanz could have effectively served Brill under the rules of civil procedure, but service by first class mail is equally effective.

The conciliation court rules are included in the General Rules of Practice for the District Courts. Rule 521 provides that a person who is “aggrieved by an order for judgment entered in conciliation court” may “remove the cause” or appeal to the district court for trial de novo. Minn. R. Gen. Pract. 521(a). Under the rules, the demand for removal may be served on the opposing party in either of two ways. Minn. R. Gen. Pract. 521(b)(1). The rules provide: “[sjervice shall be by first class mail,” or “[sjervice may also be by personal service in accordance with the provisions for personal service of a summons in district court.” Id.

I do not agree with the majority’s conclusion that the Minnesota Rules of Civil Procedure supersede the General Rules of Practice for the District Courts on the method of service for an appeal from conciliation court to the district court. The rules of civil procedure specifically provide that “[tjhese rules do not supersede the provisions of statutes relating to appeals to the district courts.” Minn. R. Civ. P. 81.02. Appeal by removal to the district court is addressed in Minn.Stat. § 491A.02. The statute provides that the right of appeal from the decision of the conciliation court by removal to the district court will be governed by the rules promulgated by the supreme court. Minn. Stat. § 491A.02, subd. 6 (2002). The conciliation court rules promulgated by the supreme court are set forth in the General Rules of Practice for the District Courts, which contain the alternative provision for service by first class mail or in accordance with the rules of civil procedure.

The two previous Minnesota Court of Appeals decisions that the majority relies on to confirm the application of the Minnesota Rules of Civil Procedure do not directly address whether the notice to remove may be served by first class mail. The cases instead address service issues that are not directly covered by the General Rules of Practice for the District Courts. See Wilkins v. City of Glencoe, 479 N.W.2d 430, 431 (Minn.App.1992) (permitting an additional three days when de*222mand for removal is served by mail); Reichel v. Hefner, 472 N.W.2d 346 (Minn.App.1991) (determining whether party to action is disqualified from personally serving opposing party). I read these cases to stand for the proposition that the rules of civil procedure apply once the case has been removed to district court, and, before removal, they are a source of instructive information on questions not resolved by the General Rules of Practice for the District Courts.

I agree that after the case has been removed to district court the rules of civil procedure apply. Reichel, 472 N.W.2d at 348 (holding that rules of civil procedure apply upon removal to district court). But the method of serving the notice of removal or appeal to the district court is governed by the conciliation court rules, and the district court correctly determined that service by mail is effective to appeal from conciliation court by removing the case to the district court.