A22-0349

This opinion is nonprecedential except as provided by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
A22-0348
A22-0349

Phillip T. Kruger,
Appellant (A22-0348),

Harvey Kruger, et al.,
Appellants (A22-0349),

vs.

Kevin Nordquist,
Defendant (A22-0349),

Heron Lake Watershed District, Acting as Drainage Authority
for Jackson County Judicial Ditch No. 3,
Respondent.

Filed September 6, 2022
Affirmed
Frisch, Judge

Jackson County District Court
File Nos. 32-CV-21-144, 32-CV-21-149

Daniel T. Donnelly, Austin, Minnesota (for appellants)

Louis Smith, Smith Partners PLLP, Minneapolis, Minnesota (for respondent)

Considered and decided by Ross, Presiding Judge; Connolly, Judge; and Frisch,
Judge.
2
NONPRECEDENTIAL OPINION
FRISCH, Judge
Appellants argue that the district court erred by dismissing their drainage appeals
for insufficient service of process. Because the district court properly determined that
Minn. R. Civ. P. 4.02 applies to appellants’ appeals, and appellants did not comply with
the rule’s requirement that a nonparty effect service of process, we affirm.
FACTS
The facts of these consolidated appeals are uncontested. Respondent Heron Lake
Watershed District is the drainage authority for Jackso n County Judicial Ditch No. 3 (the
ditch).1 Appellants Harvey and James Kruger own an 80-acre parcel abutting the ditch.
Harvey’s brother, appellant Phillip T. Kruger, also owns land adjacent to the ditch.
In September 2021, the drainage authority issued an order approving a petition to
improve the ditch and determining benefits and damages. In October, the Krugers each
attempted to appeal the drainage authority’s order to the district court. See Minn. Stat.
§§ 103E.091 (providing for appeal from drainage authority’s determination of benefits and
damages), .095 (providing for appeal of drainage authority’s establishment order)
(2020). On October 27, Phillip hand-delivered his appeal papers to the drainage authority’s
drainage coordinator and office manager, and Harvey hand-delivered his appeal papers to
the president of the drainage authority’s board of managers. The Krugers were
self-represented at the time.

1 “‘Drainage authority’ means the board . . . having jurisdiction over a drainage system or
project.” Minn. Stat. § 103E.005, subd. 9 (2020).
3
In December 2021, the drainage authority moved to dismiss the appeals for
insufficient service of process pursuant to Minn. R. Civ. P. 12.02(d). The drainage
authority argued that the Krugers failed to comply with Minn. R. Civ. P. 4.02 because the
Krugers themselves served the notices of appeal. See Minn. R. Civ. P. 4.02 (“Unless
otherwise ordered by the court, the sheriff or any other person not less than 18 years of age
and not a party to the action, may make service of a summons or other process.” (emphasis
added)).
In February 2022, the district court granted the drainage authority’s motions and
dismissed the Krugers’ appeals for insufficient service of process . The district court
specifically determined that the rule 4.02 nonparty service requirement applies to the
Krugers’ appeals and that rule 4.02 does not conflict with the drainage code.
The Krugers appeal.
DECISION
The Krugers argue that the district court erred by dismissing their appeals for
insufficient service of process.
We review de novo whether service of process was effective. Roehrdanz v. Brill,
682 N.W.2d 626, 629 (Minn. 2004). Absent proper service, the district court lacks
jurisdiction and the action must be dismissed. In re Skyline Materials, Ltd ., 835 N.W.2d
472, 475 (Minn. 2013).
4
I. The Krugers identify no conflict between the drainage code and rule 4.02.

The Krugers argue that certain provisions of the drainage-appeal statutes conflict
with, and therefore supersede, the requirement in Minn. R. Civ. P. 4.02 that a nonparty
must effect service of process.
The Minnesota Rules of Civil Procedure “govern . . . in all suits of a civil nature.”
Minn. R. Civ. P. 1. Minnesota Rule of Civil Procedure 81, however, sets forth a limited
exception to the application of the rules. Rule 81.01(a) provides that “[t]hese rules [of civil
procedure] do not govern pleadings, practice and procedure in the statutory and other
proceedings listed in Appendix A insofar as they are inconsistent or in conflict with the
rules.” (Emphasis added.) Appendix A, in turn, provides “a list of statutes . . . which will
be excepted from these rules insofar as they are inconsistent or in conflict with the
procedure and practice provided by these rules.” Accordingly, a statute supersedes a rule
of civil procedure when: (1) the statute at issue is listed in Appendix A and (2) the statute
is “inconsistent or in conflict with” the rules.
The drainage authority acknowledges that the drainage-appeal statutes are included
in Appendix A. See Minn. R. Civ. P. App. A (listing Minnesota Statutes chapters 103A
though 110A); In re V & J Farm, LLC, 974 N.W.2d 582, 587 (Minn. App. 2022) (noting
that drainage proceedings under chapter 103E are “special proceedings” under rule 81 and
Appendix A). But the drainage authority disputes that the drainage-appeal statutes are
“inconsistent or in conflict with” the requirement under rule 4.02 that a nonparty effect
service of process. We agree that sections 103E.091 and 103E.095 do not conflict with
rule 4.02.
5
“A rule of civil procedure is inconsistent or in conflict with the provisions of a
statute if the essential purpose of the statute would be frustrated by application of the rule.”
In re Petition of Brainerd Nat’l Bank, 383 N.W.2d 284, 286 (Minn. 1986). “[I]n the
absence of a clear intention to the contrary the ordinary rules of civil procedure apply to a
claim unless clearly inconsistent with the statute.” In re Civ. Commitment of Lonergan,
811 N.W.2d 635, 641 (Minn. 2012) (quotation omitted). “Generally, in cases in which we
have interpreted rule 81.01 and found a rule of civil procedure to be inconsistent with a
statute, we have determined that the conflict appeared distinctly.” Id. (quotation omitted).
The language of the relevant statutes and rules guides our analysis in determining
whether such a conflict exists. We review the construction and application of the
Minnesota Rules of Civil Procedure de novo. Melillo v. Heitland, 880 N.W.2d 862, 864
(Minn. 2016). We review questions of statutory interpretation de novo as well. Engfer v.
Gen. Dynamics Advanced Info. Sys., Inc., 869 N.W.2d 295, 300 (Minn. 2015).
Rule 4.02 provides: “Unless otherwise ordered by the court, the sheriff or any other
person not less than 18 years of age and not a party to the action, may make service of a
summons or other process.” (Emphasis added.) Section 103E.091, subdivision 2(a), part
of the benefits-and-damages appeal statute, provides:
A person who appeals the amount of benefits or
damages may include benefits and damages affecting property
not owned by the appellant. Notice of the appeal must be
served to the auditor . . . .

(Emphasis added.) And section 103E.095, subdivision 1, part of the establishment-appeal
statute, provides:
6
A party may appeal an order made by the board that . . .
establishes . . . a drainage project to the district court of the
county where the drainage proceedings are pending. The
appellant must serve notice of the appeal to the auditor within
30 days after the order is filed.

(Emphasis added.)
The Krugers argue that sections 103E.091 and .095 conflict with rule 4.02 because
the statutes use the preposition “to”—as in “Notice of the appeal must be served to the
auditor,” Minn. Stat. § 103E.091, subd. 2(a) (emphasis added)—while rule 4.03 uses the
preposition “upon”—as in “S ervice of summons . . . shall be . . . Upon an individual,”
Minn. R. Civ. P. 4.03(a) (emphasis added). We do not agree that these different
prepositions create a conflict as it pertains to this case.
First, we observe that the Krugers’ argument does not concern rule 4.02 at all. Rule
4.02 is titled “by whom served” and sets forth procedures for who may effect service of
process, including the nonparty requirement. The Krugers instead focus on rule 4.03,
which sets forth procedures for who may receive service of process. Rules 4.02 and 4.03
relate to distinct procedural requirements for effecting service; a purported material
difference in the prepositions used in the drainage-appeal statutes and rule 4.03 (the rule
governing whom to serve) does not create a conflict between the statutes and rule 4.02 (the
rule governing who may serve).
Even assuming that a conflict between the drainage-appeal statutes and rule 4.03
could create a conflict with rule 4.02, the Krugers do not identify a material conflict
between rule 4.03 and the drainage-appeal statutes. The Krugers allege that the statutes
conflict with the rule because they use different prepositions following the verb “serve.”
7
The statutes use the preposition “to” (e.g., serve to the auditor) while rule 4.03 uses the
preposition “upon” (e.g., serve upon specified individuals).2 But both prepositions refer to
the recipient of the service, not the provider of the service—i.e., the prepositions “to” and
“upon” each concern the person to be served, not the party who must provide the service.
Whether any conflict exists between “serving to” and “serving upon” is immaterial to the
question presented in this case. The only issue before us is whether the drainage-appeal
statutes conflict with rule 4.02’s requirement that parties themselves cannot provide
service. Because the purported conflict that the Krugers identify concerns only the
recipient of the service, rather than the provider of service, they identify no conflict
germane to this appeal.
Second, even if the prepositions “to” and “upon” somehow relate to the provider of
service, we observe no conflict between the statutes and the rule. To accept the Krugers’
argument, we would need to conclude that the terms “serve to” and “serve upon” are so
inconsistent with one another that “the essential purpose of the statute would be frustrated
by application of the rule.” Brainerd Nat’l Bank, 383 N.W.2d at 286. We do not find such
a conflict given the definitions of the prepositions “to” and “upon.”
The Random House Dictionary sets forth two relevant definitions for the preposition
“upon”: “in or into complete or approximate contact with” and “on (in any of various
senses, used as an equivalent of on with no added idea of ascent . . . ).” The Random House

2 We note that the district court did not address, and no party raises on appeal, whether the
Krugers delivered the appeal papers to the appropriate individuals under either the drainage
code or rule 4.03.
8
Dictionary of the English Language 2093 (2d ed. 1987) (emphasis in original). The same
dictionary provides numerous definitions of the preposition “to,” including: “(used for
expressing contact or contiguity) on; against; beside; upon.” Id. at 1989 (emphasis added);
see also The Compact Oxford English Dictionary 2071-163 (2d ed. 1991) (defining “to”
as “[i]nto (or in) contact with; on, against. Often expressing more than mere position, and
so passing into transferred senses.”). These definitions are strikingly similar, with one
definition even equating “to” and “upon.” It is unclear to us how the se different
prepositions create a conflict between the drainage-appeal statutes and rule 4.03 or how the
preposition “upon” as used in the rule could frustrate “the essential purpose” of the statutes
that use the preposition “to.” Brainerd Nat’l Bank, 383 N.W.2d at 286. And the Krugers
offer no explanation as to how the meanings of these prepositions evidence a conflict.
Based on these similar definitions, we discern no substantive difference between the
prepositions “to” and “upon” in this context, and certainly none that rises to the level of
“conflict” between the drainage-appeal statutes and rule 4.03. See Lonergan, 811 N.W.2d
at 641 (providing that the rules of civil procedure apply absent a “clear intention to the
contrary”).
Instead, the Krugers focus on the fact that the legislature recodified the drainage
code in 1985 and 1990. They note that in the recodification process, the legislature altered
the preposition affixed to the verb “to serve,” from the preposition “upon” to the
preposition “to”—i.e., the legislature changed the statute’s phrasing from “to serve upon”
to “to serve to.” The Krugers summarily argue that “[t]he change is meaningful” and imply
that this change created a conflict between the drainage-appeal statutes and the civil rules.
9
But the legislature expressly preempted such an argument. In its 1985 recodification, it
stated: “The legislature intends this act to be a clarification and reorganization of the
drainage law. The changes that have been made are not intended to alter the drainage law
and shall not be construed by a court or other authority to alter the meaning of the law.”
1985 Minn. Laws ch. 172, § 132, at 562 (emphasis added); see also 1990 Minn. Laws
ch. 391, art. 10, § 1, at 750-51 (same). We will not infer that the legislature intended to
substantively change the drainage code when the legislature explicitly stated that it
intended to do no such thing. See In re Petition for Establishment of Cnty. Ditch No. 11,
511 N.W.2d 54, 56 (Minn. App. 1994) (noting in special -term opinion on timeliness of
appeal from district court that the legislature’s 1985 and 1990 recodifications of drainage
code did not change its substance), rev. denied (Minn. Mar. 31, 1994); see also Pestka v.
County of Blue Earth, 654 N.W.2d 153, 159 (Minn. App. 2002) (acknowledging that the
legislature did not intend recodification to alter the drainage law).
Because the Krugers’ arguments do not support a conflict between the
drainage-appeal statutes and rule 4.02, we conclude that rule 4.02 applies to the Krugers’
district court appeals.
3

3 The Krugers also appear to argue that Minn. Stat. § 103E.041 (2020) conflicts with rule
4.02. The argument is conclusory, consisting only of quoting the statute and stating, “The
statute clearly recognizes Rule 4 service as an alternative to another method of service.”
See Minn. Stat. § 103E.041 (“If notice is to be given under this chapter, personal service at
least ten days before the date of hearing may be given in lieu of the manner provided. The
notice must be served in the manner provided for the service of summons in a civil action
in district court.”). The Krugers do not identify how or why this statute permits the m to
serve appeal papers themselves or how section 103E.041 otherwise conflicts with rule 4.02.
Because the Krugers fail to present any argument explaining how section 103E.041
conflicts with rule 4.02, we conclude that the argument is inadequately briefed and decline
10
II. Minnesota Rule of Civil Procedure 4, not Minnesota Rule of Civil Procedure 5,
applies to the Krugers’ drainage appeals.

The Krugers argue in the alternative that rule 5 rather than rule 4 applies to service
of their district court appeal papers. They assert that a civil action was already ongoing at
the time of their appeals—in the form of the drainage authority’s ditch-improvement
proceedings—and therefore they needed only to provide service according to rule 5. We
disagree.
Rules 4 and 5 both describe methods of providing service. Rule 4 concerns service
of a “summons,” the operative document commencing a new civil action. Minn. R. Civ.
P. 4.01; Skyline Materials, 835 N.W.2d at 475. Rule 5, on the other hand, “applies only to
service of documents after an action has been initiated.” Kmart Corp. v. County of Clay,
711 N.W.2d 485, 490 (Minn. 2006); see Minn. R. Civ. P. 5 (providing that “every pleading
subsequent to the original complaint . . . shall be served upon each of the parties”
(emphasis added)).

to consider it. State, Dep’t of Lab. & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d
480, 480 (Minn. 1997) (stating that we decline to consider inadequately briefed issues); see
Loth v. Loth, 35 N.W.2d 542, 546 (Minn. 1949) (“[O]n appeal, error is never presumed. It
must be made to appear affirmatively before there can be reversal. . . . [T]he burden of
showing error rests upon the one who relies upon it.”).

Even if we considered the Krugers’ argument, it fails. Section 103E.041 sets forth
a chapter-wide alternative manner of providing notice. It specifically provides that this
alternative notice “must be served in the manner provided for . . . in a civil action in district
court.” Nothing about this statute conflicts with rule 4.02. Nor does it indicate that other
notice provisions, like the service provisions in sections 103E.091 and .095, do not require
compliance with the rules of civil procedure. We discern no conflict between section
103E.041 and rule 4.02’s nonparty service requirement.
11
The Krugers argue that rule 4 does not apply because their appeals of the drainage
authority’s order are not new civil actions and are instead merely subsequent stages in
ongoing civil actions. But in Skyline Materials, the Minnesota Supreme Court rejected an
analogous argument. The appellants in Skyline Materials sought to challenge a zoning
variance. 835 N.W.2d at 473; see Minn. Stat. § 394.27, subd. 9 (2020 ) (providing appeal
procedures to challenge zoning variance). The appellants followed the service procedures
under rule 5 to initiate the appeal in district court, and the county then moved to dismiss
for insufficient service of process. 835 N.W.2d at 474. Just like the Krugers, the appellants
in Skyline Materials argued “that their appeal is not a summons, but rather an appeal of an
ongoing proceeding.” Id. at 475. The supreme court disagreed, holding that “[a] ‘civil
action’ under the Rules of Civil Procedure is a judicial proceeding” and “[a] proceeding
before a county board of adjustment is not a judicial proceeding.” Id. at 476 (emphasis
added). “Because the [appellants] invoked, for the first time, the jurisdiction of the courts
. . . , service of the appeal was the event that would have commenced a civil action.” Id.
Therefore, the supreme court held that the appellants’ zoning-variance appeal to district
court was a new civil action which required them to follow the new-civil-action service
requirements in rule 4. Id. Because the appellants failed to properly serve the respondents,
the supreme court concluded that the judiciary lacked jurisdiction and dismissed their suit.
Id. at 478.
The Krugers’ drainage appeals are analogous to the variance appeal in Skyline
Materials. The drainage authority is a nonjudicial body, and a drainage proceeding is not
a judicial proceeding. Just as in Skyline Materials, the Krugers’ appeals to the district court
12
invoked the jurisdiction of the judicial branch for the first time, thereby commencing a new
civil action. The Krugers were therefore required to follow the rule 4 service procedures
rather than the service procedures in rule 5. But the Krugers did not properly follow the
procedures in rule 4. Thus, “dismissal of the action necessarily follows.”4 Id.
III. The Krugers’ equity argument fails because absence of jurisdiction requires
dismissal of the action.

Finally, the Krugers argue that the district court should have accepted jurisdiction
and allowed their appeals to proceed as a matter of equity. But the district court lacked
jurisdiction to do so.
“Until the service of a proper notice of appeal, the district court has no jurisdiction
for any purpose.” Amundson v. Arndt (In re Mikkelson’s Est.), 228 N.W. 174, 175 (Minn.
1929). The district court “cannot appropriate to itself a jurisdiction which the law does not
give it by correcting or permitting the correction of a notice of appeal after the time for
taking the appeal has expired.” Id. Lacking proper service of notice, and therefore
jurisdiction, “dismissal of the action necessarily follows.” Skyline Materials, 835 N.W.2d
at 478.
The Krugers argue that dismissal of their appeals on jurisdictional grounds “would
be technical in the extreme,” and cite to County Ditch No. 27 for the proposition that their
appeals should be permitted to continue as a matter of equity because “there was no bad
faith on the part of the plaintiffs . . . , nor has there been any prejudice to the opposing

4 The Krugers attempt to distinguish Skyline Materials because that case did not concern
rule 81. However, the Krugers do not explain the relevance of rule 81 to their argument
that their drainage appeals were the continuation of an existing civil action.
13
party.” See In re Petition to Enlarge, Etc., Cnty. Ditch No. 27, Renville Cnty., 45 N.W.2d
555 (Minn. 1951). But County Ditch No. 27 states that equitable remedies are available
only for nonjurisdictional defects. Id. at 559 (“Appellant will not be denied the right of an
appeal on the ground of nonjurisdictional defects.”). While we are sympathetic that the
jurisdictional rules create a harsh result to the Krugers, “making an exception here, even if
we were free to do so, would be incongruous with the policy to construe the rules
concerning the commencement of an action to provide a single, uniform course of
procedure that applies alike to all civil actions.” Skyline Materials, 835 N.W.2d at 478
(quotation omitted); see also Gieseke v. Nicollet Cnty. Drainage Auth. for Cnty. Ditch No.
86A, No. A19-0955, 2020 WL 1129962, at *3 (Minn. App. Mar. 9, 2020) (same).
Because the district court lacked jurisdiction, we discern no error in its dismissal of
the actions.
Affirmed.