A16-1899 A16-1900 A16-1901 A16-1903 A16-1904 A16-1906 A16-1907

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1898
A16-1899
A16-1900
A16-1901
A16-1903
A16-1904
A16-1906
A16-1907

City of Fairmont,
Respondent,

vs.

Thomas D. Unruh,
Appellant.

Filed June 12, 2017
Affirmed in part, reversed in part, and remanded
Connolly, Judge

Martin County District Court
File No. 46-CV-15-1176

Elizabeth W. Bloomquist, Fairmont City Attorney, Fairmont, Minnesota (for respondent)

Patrick V. Johnson, Emily Johnson Streier, Speeter & Johnson, Minneapolis, Minnesota
(for appellant)

Considered and decided by Reyes, Presiding Judge; Connolly, Judge; and Larkin,
Judge.
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U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
This is a consolidated appeal arising from hazardous -building abatement actions
involving eight properties owned by appellant. Appellant argues that, a fter the distric t
court granted respondent city’ s motion for summary enforcement, it erred in determining
that (1) appellant’s answer was untimely and (2) the record contains sufficient evidence to
support summary enforcement under Minn. Stat. § 463.19 (2016). We conclude that the
district court did not err in determining that appellant’s answer was untimel y. However,
because there is not sufficient evidence to support the conclusion that the properties were
hazardous, we reverse. Accordingly, we affirm in part, reverse in part, and remand.
FACTS
Appellant Thomas Unruh operates a business repairing and res elling homes. He
owns nine properties that he is repairing for resale. On July 17, 2015, respondent City of
Fairmont (the city) sent appellant a package via FedEx containing Orders for the Repair or
Removal of Hazardous Conditions for eight properties. Each notice informed appellant
that he had 30 days to correct the described building code violations or hazards.1 The
notice also stated:
If you do not comply with this o rder within 30 days, the . . .
[c]ity [c]ouncil will consider this Order at a public meeting and
may adopt a Resolution ordering you to comply with this order.
If you do not comply with a R esolution adopted by the . . .

1 There were 19 listed violations or hazards on the first property, 13 on the second, 16 on
the third, 9 on the fourth, 11 on the fifth, 20 on the sixth, 14 on the seventh, and 15 on th e
eighth, a total of 117 hazards or violations over the eight properties.
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[c]ity [c] ouncil, the [c ]ity will bring a motion for Sum mary
Enforcement of this Order.
Appellant did not make all th e required repairs, and, on August 24, 2015, the matter was
brought before the city c ouncil. A motion was passed to issue an order to appellant “to
make repairs or raze [eight] properties that are owned by him and to direct staff to bring a
motion for sum mary enforcement . . . if the order is not complied with within 30 days.”
On September 2, 2015, appellant was personally served with duplicates of the Orders for
the Repair or Removal of Hazardous Conditions he had already received in July of 2015.
Each order stated, “In the event you are served with this Order and the . . . [c]ity [c]ouncil’s
Resolution ordering you to comply with this Order you may enter an answer to this order
within twenty (20) days, if you believe any of the facts stated herein are incorrect.”
Appellant was also served with a summons that stated:
You are hereby o rdered to comply with the attached
ORDER FOR THE REPAIR OR REMOVAL OF
HAZARDOUS CONDITIONS, which was adopted by the . . .
[c]ity [c]ouncil on August 24th, 2015 at a regularly scheduled
[c]ity [c] ouncil meeting. If you do not comply with this
ORDER FOR TH E REPAIR OR REMOVA L OF
HAZARDOUS CONDITIONS, the [c] ity . . . will bring a
motion for summary enforcement of the order. . . . If you plan
to dispute this ORDER FOR THE REPAIR OR REMOVAL
OF HAZARDOUS CONDITIONS you are required to serve
upon [the city’s] attorney an answer to the ORDER FOR THE
REPAIR OR REMOVAL OF HAZARDOUS CONDITIONS
which is . . . served upon you, within 20 days after service . . . .
Appellant did not serve answers to the eight summons es and orders because he
believed that “the service of process was ineffective and the [c ]ity had failed to comply
with the statutory process to bring an order for removal of a hazardous condition.”
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Appellant’s attorney requested an extension of time to serve the answers on October 1,
2015, but the city’s attorney denied the request. On October 2, 2015, appellant served the
city with answers that contained specific denials, admissions, and counterclaims. The city
did not answer the counterclaims.
In December 2015, the city filed with the district court the summonses and orders it
had served upon appellant in September . On April 14, 2016, the city filed motions
requesting that the district court affirm the orders of the city council to repair or raze and
remove the eight hazardous properties . The cases agai nst the eight properties were
consolidated. After a hearing, the district court denied appellant’s motion to vacate the city
council’s resolution and granted the city’s motion for summary enforcement of the order.
D E C I S I O N
I. Did the district court err in concluding that appellant’s answer was untimely?
Appellant argues that he did not receive proper notice and the opportunity to be
heard because the city failed to comply with statutory service and notice requirements.
“The in terpretation of statutes and municipal resolutions involves questions of law we
review de novo.” Eagan Econ. Dev. Auth. v. U-Haul Co. of Minn., 787 N.W.2d 523, 529
(Minn. 2010); Hursh v. Village of Long Lake, 247 Minn. 1, 4, 75 N.W.2d 602, 605 (1956)
(interpreting a municipal resolution to decide if it conformed to statutory requirements).
Minn. Stat. §§ 463.15-.261 (2016) governs hazardous and substandard buildings,
and establishes a statutory scheme by which a municipality may seek to abate hazardous
buildings. “Within 20 days from the date of service, any person upon whom the order is
served may serve an answer in a manner provided for the service of an answer in a civil
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action, specifically denying such facts in the order as are in dispute.” Minn. Stat. § 463.18.
If no answer is served, then the municipality may move for summary enforcement of the
order. Minn. Stat. § 463.19. But “[i]f an answer is filed and served as provided in section
463.18, further proceedings in the action shall be governed by the Rules of Civil
Procedure.” Minn. Stat. § 463.20.
Appellant was personally served on September 2, 2015, and notified that an answer
was required to be served on the city within 20 days. Appellant failed to serve his answer
until approximately 30 days after personal service of the order.
Appellant argues that his failure to respond is not fatal because he was not served
with an “order” as required by statute. Rather, he argues he was served with a “‘Summons’
which stated that [a]ppellant is ordered to comply with the order for repair or removal of
hazardous conditions whi ch were ‘adopted’ by the . . . [c]ity [c] ouncil”; no complaint or
other pleading accompanied the summons ; and there was “no statement that the [c]ity
[c]ouncil ‘ordered’ the repairs or removal of hazards.”
But a copy of the order to repair or raze and remove the hazardous property given
to appellant by respondent in July was attached to the summons and t he summons was
signed by the city attorney.
Minn. Stat. § 463.17 requires that the order mus t recite the grounds, specify the
necessary repairs, provide a reasonable time for compliance, and state that a motion for
summary enforcement of the order will be made to the district court unless corrective action
is taken or an answer is filed within 20 days. Minn. Stat. § 463.17, subd. 1. Service must
be upon the owner of record in the manner provided for service of a summons in a civil
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action. Id., subd. 2. The summons notified appellant that the order was adopted by the city
council and that, if appellant planned to dispute the order, he was required to serve an
answer within 20 days after service. The orders adopted by the city council in September
to repair or raze and remove the properties were attached to the summons, and, although
an exact duplicate of the order given to appellant in July, listed the violations and hazards
as required and specified the actions appellant was required to take to correct the violations.
We conclude that the service of the summons and July orders collectively satisfied Minn.
Stat. § 463.17.
Appellant argues that the order and resolution of the city council were not attached
to the summons and that an answer was not yet due because the orders were not signed by
the mayor, city council, or the city at torney but rather by a “Building Official.” We
disagree. The city attorney signed the summons, which informed appellant that the orders
were adopted by the city council at a meeting on August 24, 2015. While a newly drafted
order and resolution by the city council would have also been appropriate, the notification
from the city attorney that the order had been adopted by the city council was sufficient.
Appellant also argues that the summons and order s were ineffective because the
orders did not provide a “reasonable time for compliance” as required by Minn. Stat.
§ 463.17, subd. 1. We conclude that this defense could have been raised in a timely answer.
See City of Litchfield v. Schwanke, 530 N.W.2d 580, 582 (Minn. App. 1995). In Schwanke,
a property owner was given 20 days to demolish a building and make it safe but argued, in
his answer to the summons, that he had not been given a reasonable time within which to
comply. Id. at 581. The district court modified the municipal order giving the proper ty
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owner six months to address the issues and, at the end of the six months, the city concluded
that the building was no longer hazardous or substandard. Id. at 581-82. An answer to the
summons is the correct place to address the issue of whether a property owner was given a
reasonable time to correct the hazardous conditions.
In a related context , Minnesota has “repeatedly interpreted the rules regarding the
court’s acquisition of jurisdiction by summons liberally to avoid defeating an action merely
because of technical and formal defects which could not reasonably have misled or
prejudiced a defendant.” DeCook v. Olmsted Med. Ctr., Inc., 875 N.W.2d 263, 268 (Minn.
2016) (quotation omitted). When a summons contains a defect, but results in an intended
defendant being fully informed as to the circumstances of the act ion, the court acquires
sufficient jurisdiction over that defendant, even if an amendment is necessary to correct the
defect. Id.
Appellant was fully informed as to the circumstance of the action. He received the
FedEx package in July 201 5 containing all eight orders , and he hired counsel who
communicated with the city attorney. After the city council adopted the July 2015 orders,
appellant was personally served the summons and orders. While appellant requested more
time to serve his answer, the request came after the 20 -day deadline had passed and the
city denied that request.
Because appellant was properly informed of the action against him under the statute,
we conclude that the district court did not err in concluding that appellant’s answe r was
untimely.
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II. Did the record contain sufficient evidence to support an enforcement of the
order to repair or sell appellant’s property?
Appellant next argues that the district court erred when it granted the city’s motion
for summary enforcement without sufficient evidence that the properties met the definition
of hazardous under the relevant Minnesota statute. We agree.
Even in a defau lt judgment, the party moving for default judgment must provide
sufficient evidence to s upport all the elements of the case. See Wiethoff v. Williams , 413
N.W.2d 533, 537 (Minn. App. 1987) (concluding that a default judgment should be
vacated, in part, because there was not sufficient evidence to support an award of damages).
Minn. Stat. § 463.19 requires that the court affirm or modify the order and enter
judgment accordingly, “upon the presentation of such evidence as it may require.” We
conclude that the district court was not presented with sufficient evidence to conclude that
the buildings were hazardous and therefore erred in granting summary enforcement.
The affidavit of the city attorney states that the order of the city council was served
upon appellant, that appellant failed to answer the summons and order within 20 days, and
that “no corrective action has been taken in compliance with the Order of the [c]ity
[c]ouncil.” The building inspector did not testify or submit an affidavit attesting t o the
hazardous conditions of the property. The building inspector’s report s were included in
the record, but were not verified, and no one testified as to the report s’ contents or the
conditions of the properties as of the date of the summary enforcement . Because w e

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conclude that the evidence in the record is not enough to support a conclusion that the
conditions on the eight properties were hazardous, we reverse.
Affirmed in part, reversed in part, and remanded.