Chue Her, Relator,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1024

Chue Her,
Relator,

vs.

FGT Cabinetry LLC,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed April 5, 2021
Affirmed; motion denied
Smith, Tracy M., Judge

Department of Employment and Economic Development
File No. 38181420

Peter B. Knapp, Peter C. Schmitz (certifi ed student attorney), Mitchell Hamline Law
Clinic, St. Paul, Minnesota (for relator)

Keri Phillips, Anne B. Froelich, Minnesota Department of Em ployment and Economic
Development, St. Paul, Minnesota (for respondent department)

FGT Cabinetry LLC, Eagan, Minnesota (respondent employer)

Considered and decided by Connolly, Presiding Judge; Ross, Judge; and Smith,
Tracy M., Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
Relator Chue Her challenges the decision by an unemployment -law judge (ULJ)
dismissing his unemployment-benefits admini strative appeal as untimely. Although Her

2
filed his administrative appeal outside of the 20-day appeal period, he asserts that his appeal
should be considered timely because respon dent Minnesota Department of Employment
and Economic Development (DEED) mailed its determination of ineligibility for benefits,
which triggered the 20-day appeal period, to a nonexistent address. He further asserts that
DEED deprived him of his due-process rights by mailing the determination to a nonexistent
address.
In an addendum to its brief to this court, DEED submitted an affidavit from a DEED
employee explaining DEED’s pr ocesses and attaching records showing that Her was
responsible for entering the incorrect address that DEED relied upon. Her moves to strike
the documents and references to them in DEED’s brief.
We deny Her’s motion to strike, and we supplement the record with the evidence
submitted by DEED. Because th e supplemental evidence es tablishes that Her was
responsible for the incorrect mailing address, we conclude that the ULJ did not err when it
dismissed Her’s untimely appeal and that DEED did not violate Her’s due-process rights.
We therefore affirm.
FACTS
On March 18, 2020, Her a pplied for unemployment benefits. On April 6, 2020,
DEED sent Her a determination of ineligib ility to 1376 SANFORD ST, Saint Paul, MN
55117—an address that does not exist. The le tter stated that “[t]his determination will
become final unless an appeal is filed by Monday April 27, 2020.”

3
Her filed an appeal on May 12, 2020. In a follow-up excha nge on DEED’s online
system, Her was asked why he filed his appeal late and he responded, “This [is] my first[.]
I didn’t know how to even apply or appeal.”
The ULJ summarily dismissed Her’s a ppeal as untimely on May 13, 2020. Her
requested reconsideration, and the ULJ affirmed the dismissal.
Her’s certiorari appeal follows.
DECISION
Her asserts that his appeal should be considered timely under the unemployment-
benefits statute because DEED mailed the de termination of inelig ibility triggering the
appeal period to the wrong address. He furt her asserts that DEED ’s incorrect mailing
violated his due-process rights.
I. Her’s appeal was untimely.
A determination of ineligibility for unemployment benefits “is final unless an appeal
is filed by the applicant or employer within 20 calendar days after sending.” Minn. Stat.
§ 268.101, subd. 2(f) (2020). “The date of mailing commences the time for appeal.” Smith
v. Masterson Pers., Inc., 483 N.W.2d 111, 112 (Minn. App. 1992). “The statute does not
require actual notice for the appeal period to run.” Johnson v. Metro. Med. Ctr. , 395
N.W.2d 380, 382 (Minn. App. 1986). But, if DEED fails to mail the notice, the appeal
period is not triggered. Mgmt. Five, Inc. v. Comm’r of Jobs & Training, 485 N.W.2d 323,
324 (Minn. App. 1992).
The ULJ must dismiss untimely appeals for lack of jurisdiction. Cole v. Holiday
Inns, Inc. , 347 N.W.2d 72, 73 (Minn. App. 1984); accord Minn. Stat. § 268.105,

4
subd. 1a(c) (2020) (“The unemployment law judge must issue a decision dismissing the
appeal as untimely if the judg e decides the appeal was not f iled within 20 calendar days
after the sending of the determination.”). The statutory time period “is absolute and
unambiguous,” Semanko v. Dep’t of Emp’t Servs., 244 N.W.2d 663, 666 (Minn. 1976), and
“there are no statutory provisions for extensi ons or exceptions to the appeal period,”
Kennedy v. Am. Paper Recycling Corp. , 714 N.W.2d 738, 740 (Minn. App. 2006). “[A]
ULJ’s decision to dismiss an appeal as untimel y is a question of law, subject to de novo
review.” Godbout v. Dep’t of Emp’t & Econ. Dev. , 827 N.W.2d 799, 802 (Minn. App.
2013).
It is undisputed that DEED mailed its dete rmination of ineligibility to an address
that does not exist. But Her did not raise the issue of an incorrect address prior to his appeal
to this court. Instead, when the agency questioned why his a ppeal was late, he explained
that he did not know how to appeal, and, when he requested reconsideration of the ULJ’s
summary dismissal of his appeal, he challenged only on the merits of DEED’s ineligibility
determination. Litigants are generally bound on appeal by the theory on which the action
was actually tried below, Annis v. Annis , 84 N.W.2d 256, 26 1 (Minn. 1957), and an
appellate court generally will not consider matters not argue d to and considered by the
district court, Thiele v. Stich , 425 N.W.2d 580, 582 (Minn. 1988). Because Her did not
argue to the ULJ that the mailing was sent to an incorrect addre ss, Her forfeits that
argument on appeal. See Thiele, 425 N.W.2d at 582.
But, even if Her’s argument were not fo rfeited, it would still fail. Her argues that,
because DEED failed to mail th e notice to an “actual addre ss,” the appeal period was not

5
triggered. Her relies on Stassen v. Lone Mountain Truck Leasing, LLC , where we
determined that the appeal period did not start running when DEED mailed a determination
of eligibility to the employer’s former address. 814 N.W.2d 25, 30 (Minn. App. 2012). In
Stassen, the ULJ made a finding that the employer had properly updated its address on one
page in its online account as directed bu t had failed to do so on another page. Id. DEED
mailed the notice to the former address. Id. We concluded that “the consequence of the
mistaken addressing of the le tter should not be bo rne by the party th at followed DEED’s
website directions in updating its address” and that the appeal period had not begun to run.
Id.
Her contends that the argument that the appeal period had not started running is
even stronger here than in Stassen because, here, DEED did not merely send the
determination of ineligibility to a former address, it sent it to a nonexistent address. But the
basis for the decision in Stassen was that a party that properly updated its address according
to DEED’s directions should not be he ld responsible for a mistake in mailing. Id. Unlike
the appellant in Stassen, Her presented no evidence that he had properly supplied a correct
address to DEED at the time of DEED’s mailing.
But Her argues that, because “nothing in the record shows how DEED received the
incorrect address,” he should receive the benefit of an inference that he was not responsible
for the mistake. The problem with his argume nt is that the record was never developed
because Her did not raise the issu e of an incorrect address, eith er to the agen cy or to the
ULJ in his request for reconsideration. It is because the issue was first raised on appeal to

6
this court that DEED submitted extra-reco rd documents and argument in its briefing
addressing why Her’s address was incorrect.
Her moves to strike these documents and related briefing because they are outside
the record. The record on appeal generally consists of only papers filed in the district court,
offered exhibits, and the transcript of the proceedings. Minn. R. Civ. App. P. 110.01; see
also Minn. R. Civ. App. P. 115.04 (incorporating rule 110 to the extent possible in certiorari
appeals). Nevertheless, the supreme court has held that “appellate courts, in order to sustain
verdicts and judgments, will permit omissions to be supplied by documentary evidence of
a conclusive nature.” Mattfeld v. Nester, 32 N.W.2d 291, 303-04 (Minn. 1948); see also
Minn. R. Civ. App. P. 110.05 (providing an appellate court, on its own initiative, may
approve a supplemental record if there is an omission or misstatement in the record). The
supplied evidence must support affirmance; it will not be permitted in support of reversal.
Carlson v. Mut. Serv. Ins., 494 N.W.2d 885, 888 (Minn. 1993); see also In re Objections
& Defenses to Real Prop. Taxes for 1980 Assessment , 335 N.W.2d 717, 718 n.3 (Minn.
1983) (holding that evidence outside the district court record may be considered “when the
evidence is documentary evidence of a conclusive nature (uncontroverted) which supports
the result obtained in the lower court”).
The supplemental evidence submitted by DEED consists of an affidavit from the
director of DEED’s Customer Service Cent er and three documents: an excerpt from the
handbook that DEED mails to all unemployment-benefits applicants; a page from Her’s
online application for benefits; and an event log that recorded Her’s online account activity.
This evidence shows that DEED informs applicants to keep the address on their account

7
up to date for at least four years after receiv ing benefits. It furthe r shows that, when Her
initially applied for benefits on March 18, 2020, he entered an address on Earl Street in
Saint Paul. The event log show s that, twelve days later, on March 30, Her changed the
contact information on his account to the no nexistent 1376 Sanford Street address that
DEED relied on to mail the determination of ineligibility. Finally, the event log shows that,
on April 7, 2020—the day following the mailing of the determination of ineligibility—Her
changed his address on his online account to his correct address.1
Her does not contest the accuracy of any of this evidence. Together, it shows that
Her was informed to keep his address up to date but that he nevertheless entered an
incorrect address in DEED’s system. It s hows that DEED mailed the determination of
ineligibility to this incorrect address—Her’s last known address—on April 6, 2020. See
Minn. Stat. § 268.032(b) (2020) (requiring DEED to mail the determination to the
employee’s “last known address”). The evidence conclusively establishes that DEED was
not responsible for the incorre ct address on file. Unlike in Stassen, where we concluded
that a party that follows DEED’s instructions should not bear the cost for DEED’s mistake,
in this case, Her entered the wrong address and must bear the cost for that mistake. Because
the evidence is uncontroverted and su pports affirmance, we permit DEED’s

1 The affidavit also explains that the determ ination of eligibility was accessible to Her on
his online account.

8
supplementation of the record and deny Her’s motion to strike. 2 On the basis of the
complete record, we conclude that the ULJ did not err by dismissing Her’s untimely appeal.
II. DEED did not violate Her’s due-process rights.
Her also asserts that DEED violated his due-process rights because it failed to
provide sufficient notice of the determin ation of ineligibility when it mailed the
determination to a nonexistent address. The Minnesota Constitution guarantees that “[n]o
person shall . . . be deprived of life, liberty or property without due process of law.” Minn.
Const. art. I, § 7. Unemployment benefits are an entitlement protected by the constitutional
right to procedural due process. See Schulte v. Transp. Unlimited, Inc. , 354 N.W.2d 830,
832 (Minn. 1984). When, as here, a due-pro cess challenge revolves around the adequacy
of notice, we determine whether the notice was “reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and afford them
an opportunity to pres ent their objections.” McShane v. Comm’r of Pub. Safety , 377
N.W.2d 479, 482-83 (Minn. App. 1985) (quotation omitted), review denied (Minn. Jan. 23,
1986).
Her relies on our decision in Godbout, 827 N.W.2d 799, asserting that it stands for
the proposition that a “notice mailed to a wrong address is constitutionally defective.” But
that was not our holding in Godbout. In that case, Godbout requested and was paid
unemployment benefits. Godbout, 827 N.W.2d at 800. After he stopped requesting
benefits, DEED mailed a determination of over payment to his last known address stating

2 Because we conclude that the record is properly supp lemented with the evidence
submitted by DEED, we also de ny Her’s motion for attorney’s fees against DEED based
on its submission of the extra-record evidence.

9
that Godbout had committed fraud, resulting in an overpayment and penalty. Id. at 801. By
the time of that mailing, Godbout had moved from his former address and was incarcerated.
Id. at 800-01. He argued that the notice violat ed his right to due process because DEED
had not notified him of the consequences of failing to maintain a current address following
the end of his benefit claim. Id. at 802. We agreed that Godbout’s due-process rights had
been violated because DEED had failed to “communicate the interest at stake” and
Godbout had acted rationally by not updating his address after he stopped requesting
benefits. Id. at 803 (quotation omitted).
Here, in contrast, DEED informed Her to “[k]eep the address on [his] account up-
to-date for at least four years after [his] last request for a benefit payment.” Moreover, Her
was still requesting unemploym ent benefits. Unlike in Godbout where it was rational for
Godbout to not update his address after he stopped requesting services, here it was not
rational for Her to fail to update his a ddress during the ongoing unemployment-benefits
process.
Her suggests, though, that “any simple se arch on Google, MapQuest, or any other
search engine will show that no such street or address exists.” But there is no requirement
that DEED conduct an independent internet search to verify each mailing address provided
by applicants. DEED’s notice to Her was reas onably calculated to inform Her of “the
pendency of the action and afford [him] an opportunity to present [his] objections.” Id. at
802 (quotation omitted). Thus, the record establishes that DEED did not violate Her’s due
process rights.
Affirmed; motion denied.