Twin City Petroleum and Properties, LLC, et al., Appellants,

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-0918

Twin City Petroleum and Properties, LLC, et al.,
Appellants,

vs.

Katrina Kessler, in her capacity as
Commissioner of the Minnesota Pollution Control Agency,
Respondent.

Filed January 17, 2023
Affirmed
Reyes, Judge

Stearns County District Court
File No. 73-CV-21-8986

Christopher J. Heinze, Kirsten J. Libby, Libby Law Office, P .A., St. Paul, Minnesota (for
appellants)

Keith Ellison, Attorney General, Peter Surdo, Assistant Attorney General, St. Paul,
Minnesota (for respondent Minnesota Pollution Control Agency)

Considered and decided by Reyes, Presiding Judge; Slieter, Judge; and Frisch,
Judge.
SYLLABU S
A petition for review of an administrative penalty order under Minn. Stat. § 116.072,
subd. 7(a) (2022), must be dismissed as untimely if the person subject to the order fails
both to serve and file the petition within 30 days of receiving the order.

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OPINION
REYES, Judge
Appellants challenge the dismis sal of their petition for review of administrative
penalty orders (APOs) issued by the respondent-agency, which the district court dismissed
because appellants failed to serve the petition timely under Minn. Stat. § 116.072,
subd. 7(a). We affirm.
FACTS
On November 10, 2021, respondent Katrina Kessler, in her capacity as
Commissioner of the Minnesota Pollution Control Agency (the MPCA) , through a
designee, issued nine APOs against appellants Twin City Petroleum and Properties, LLC
and Molo-Twin LLC (collectively, TC Petroleum).1 TC Petroleum received the APOs the
same day they were issued. Under Minn. Stat. § 116.072, subd. 7(a), and according to TC
Petroleum’s alleged timeline, TC Petroleum had until December 10, 2021, to seek judicial
review of the APOs by filing a petition, together with proof of service, in district court.
On December 10, 2021, TC Petroleum filed with the district court a petition and an
“affidavit of service.” The affidavit of service stated, “I served the Joint Petition to Review
Administrative Penalty Orders by placing a true and correct copy of the document in an
envelope” and mailing it to the MPCA and the Attorney General’s Office (the AGO), which
represents the MPCA in this matter . The AGO alleged that it did not receive the petition
until December 14, 2021. Thus, the AGO contacted TC Petroleum, informing it that the

1 The parties do not dispute that the APOs were issued and received by TC Petroleum on
November 10, 2021.

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MPCA had not been served but would accept service without waiving jurisdictional
defenses or objections.
According to the MPCA, on December 17, 2021, TC Petroleum sent a summons
and a prepared form 22B (waiver of service of summons) for acknowledgment of service.
That same day, the AGO executed the following waiver of service of summons:
I received your request that I waive service of a
summons in th[is] law suit . . . . I understand that I (or the
entity on whose behalf I am acting) will retain all defenses or
objections to the lawsuit or to the jurisdiction or venue of the
court except f or objections based on a defect in the summons
or in the service of the summons . . . . A party who waives
service of the summons . . . may later object to the jurisdiction
of the court or to the place where the action has been brought.

The AGO filed the waiver of service of summons form with the district court on
December 20, 2021, and TC Petroleum filed the summons with the district court on
December 22, 2021.
Three weeks later, the MPCA moved to dismiss the petition pursuant to Minn. Stat.
§ 586.07 (2022) and Minn. R. Civ. P. 12.02(a),2 (e) based on untimely service. See Minn.
Stat.§ 116.072, subd. 7 (2022). TC Petroleum argued that the MPCA waived service by
executing the waiver of summons. The district court held a hearing and later gran ted the
MPCA’s motion to dismiss. The district court determined that TC Petroleum’s “failure to
personally service or file a waiver of personal service within 30 days as provided by statute
deprived [the district court] of subject matter jurisdiction .” This appeal follows.

2 While the MPCA’s notice of motion to dismiss only mentions Minn. R. Civ. P. 12.02(e),
its memorandum uses Minn. R. Civ. P. 12.02(a) extensively to support its request to
dismiss.

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ISSUE
Did the district court err by dismissing TC Petroleum’s petition for review of the
APOs?
ANALYSIS
The sole issue in this appeal is whether the district court erred by dismissing TC
Petroleum’s petition for review of the APOs because TC Petroleum failed to serve timely
the petition on the MPCA. We review this jurisdictional issue de novo. Bode v. Minn .
Dep’t of Nat. Res., 612 N.W.2d 862, 866 (Minn. 2000 ).3
The relevant statute authorizing a petition for review, or appeal, of an APO reads:
Within 30 days after the receipt of an order from the
commissioner . . . the person subject to an order under this
section may file a petition in district court for review of the
order in lieu of requesting an administrative hearing under
subdivision 6. The petition shall be filed with the court
administrator with proof of service on the commissioner . . . .

Minn. Stat § 116.072, subd.7(a) (emphasis added) . The statute does not specify what types
of proof of service are allowed but “[i]n the absence of a statute authorizing service by
mail, the notice of appeal . . . must be actually received” on or before the filing deadline.

3 The parties discuss dismissal in the context of Minn. R. Civ. P. 12.02, but that rule
addresses how defenses must be raised in response “to a claim for relief in any pleading,”
and “pleadings” are defined in the rules to include only complaints, answers, replies to
counterclaims, and answers to cross -claims. See Minn. R. Civ. P. 7. 01. We address this
motion to dismiss in the context of statutory law governing petiti ons for review of APOs
in district court. Cf. Leiendecker v. Asian Women United of Minn ., 848 N.W.2d 224, 230 -
31 (Minn. 2014) (rejecting reliance on Minn. R. Civ. P. 56.03 standard as incompatible
with statutory requirement for dismissal under anti -SLAPP (Strategic Lawsuit Against
Public Participation) statute).

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City of St. Paul v. Wiplinger, 186 N.W.2d 540 , 542-43 (Minn. 1971). Service must comply
strictly with statutory requirements. Berryhill v. Sepp, 119 N.W. 404, 404 (Minn. 1909).
Courts strictly construe statutory time limits for appeals of administrative decisions,
and such time limits are jurisdictional. Langer v. Comm ’r of Revenue, 773 N.W.2d 77, 80
(Minn. 2009) ; see also Reynolds v. Minn . Dep’t of Hum. Servs ., 737 N.W.2d 367, 369
(Minn. App. 2007) (“The failure of an aggrieved party to commence an appeal of a state
agency decision within the time limits in the statute governing such appeals properly results
in dismissal for lack of jurisdiction.”).
In Langer, appellant “mailed the notice of appeal, affidavit of service, and filing fee
to the tax court and mailed a copy of the notice of appeal to the commissioner.” 773
N.W.2d at 79. While the commissioner received the notice of appeal before the statutory
deadline, the tax court di d not receive it until after the deadline. Id. The Minnesota
Supreme Court held that “[n]otice of appeal of tax court decision, affidavit of service , and
filing fee mailed before but received after the filing deadline are untimely.” Id. at 78. The
Minnesota Supreme Court affirmed the tax court’s dismissal of the appeal for “lack of
subject matter jurisdiction.” Id. at 81.
Although Langer involved an appeal to the tax court, an executive-branch court, the
requirement for strict compliance has been applied similarly in appeals of administrative
decisions to the district court. See Flame Bar, Inc. v. City of Minneapolis, 295 N.W.2d 586
(Minn. 1980); Elbert v. Tlam , 830 N.W.2d 448, 449 (Minn. App. 2013) , rev. granted
(Minn. July 16, 2013) and ord. granting rev. vacated (Minn. Sept. 25, 2013). Elbert is
particularly instructive. In that case, appellants filed their appeal to the district court within

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the 30-day time period but failed to serve the notice of appeal on respondent within the 30-
day period. Elbert, 830 N.W.2d at 449. In Elbert, we held that “the appealing party must
serve notice of appeal on the adverse party or parties within the 30 -day time period set
forth in the statute; failure to do so is an incurable jurisdictional defect.” Id. at 448.
Applying the principles recognized in Langer and Elbert here, we hold that a
petition for review of an APO under Minn. Stat . § 116.072, subd. 7(a), must be dismissed
as untimely if the person subject to the order fails both to serve and file the appeal within
30 days of receiving the APO. And applying that holding to the facts of this appeal, we
conclude that the district court did not err by dismissing TC Petroleum’s petition for review
of the APOs.
TC Petroleum received the APOs on November 10, 2021 . Under Minn. Stat.
§ 116.072, subd. 7(a), TC Petroleum had 30 days to appeal by filing its petition “with the
court administrator with proof of service on the commissioner or county board.” Because
the statute does not clarify what types of proof of service are allowed, the notice of appeal
should have been received by the MPCA and filed with the district court within the 30-day
time period . Instead, on December 10, 2021, TC Petroleum filed its petition with the
district court and mailed an affidavit of service to the AGO. The AGO alleged that it did
not receive the petition until December 14, 2021. Like the tax court in Langer, the MPCA
did not receive the petition with in the statutory appeal period. See Langer, 773 N.W.2d at
79. And like the appellant in Elbert, TC Petroleum timely filed the p etition but failed to
serve it within the statutory appeal period. See Elbert, 830 N.W.2d at 449. As a result, the
district court correctly determined that it lacked authority to hear the matter.

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TC Petroleum argues that the district court erred by dismissing the case because the
MPCA waived the service requirement. Assuming without deciding that the MPCA could
waive compliance with the statutory requirements, we conclude that it did not do so here. 4
TC Petroleum relies on the following language in the waiver of service of summons
to support its waiver argument: “I understand that I (or the entity o n whose behalf I am
acting) will retain all defenses or objections to the lawsuit or to the jurisdiction . . . except
for objections based on a defect in the summons or in the service of the summons.”
Through this language, the MPCA waived any defenses based on two types of defects:
(1) defects in the summons itself and (2) defects in the service of the summons.5 The
MPCA did not rely on eit her of those types of defects in moving to dismiss the petition.
Rather, the MPCA asserted TC Petroleum’s failure to serve the petition timely. Moreover,
in the form waiver that the MPCA executed, the MPCA specifically retained its defenses

4 TC Petroleum relatedly argues that the district court erred by treating the issue here as
implicating subject-matter jurisdiction , which cannot be waived, rather than personal
jurisdiction, which is subject to waiver. See McCullough & Sons, Inc. v. City of Vadnais
Heights, 883 N.W.2d 580, 590 & n.3 (Minn. 2016) (distinguishing between subject-matter
and personal jurisdiction and re cognizing that it has sometimes conflated the two).
Because we conclude that the MPCA did not waive compliance with the statutory
requirements to perfect an appeal of an agency decision, we need not determine whether
the failure to comply with such requir ements is properly characterized as implicating
subject-matter jurisdiction , which the MPCA would not have authority to waive, or
personal jurisdiction, which could be waived.
5 A summons is defective if it fails to include the information required by Minn. R. Civ. P.
4.01. See, e.g., DeCook v. Olmsted Med. Ctr., Inc. , 875 N.W.2d 263, 267 (Minn. 2016)
(holding that “a summons is defective if it is not subscribed by either the plaintiff or an
attorney licensed to practice law in Minnesota ” as required by ru le 4.01). A defect in the
service of the summons occurs, for example, when a party to an action attempts to serve
the adverse party personally. Lewis v. Contracting Nw., Inc., 413 N.W.2d 154, 157 (Minn.
App. 1987).

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and objections to jurisdiction. The waiver stated, “A party who waives service . . . may
later object to the jurisdiction of the court.” Additionally, the rule governing a form waiver
also provides that “ [w]aiving service of a summons does not waive any objection to
personal jurisdiction or to venue.” See Minn. R. Civ. P. 4.05(e). As a result, MPCA did
not waive its ability to object to TC Petroleum’s failure to comply with the jurisdictional
statutory requirements for perfecting an appeal from the APOs .
We finally note that service of the summons, through the waiver of service of
summons, did not become effective until the waiver was signed. See Minn. R. Civ.
P. 4.05(d). In this case, the AGO executed the waiver of service of summons on December
17, 2021. This was after the expiration of the December 10, 2021 statutory deadline to
perfect an appeal under Minn. Stat. § 116.072, subd. 7(a). Thus, the belatedly executed
waiver of service of summons did not effect timely service of the petition under the statute.
DECISION
In order to timely petition for review of an APO under Minn. Stat. § 116.072,
subd. 7(a), the party seeking review must both serve and file the petition within 30 days of
receiving the APO. Because statutory deadlines for judicial review of administrative
decisions are strictly construed , and because TC Petroleum failed to serve timely i ts
petition for review, the district court did not err by dismissing the petition.
Affirmed.