Keith D Hagfors, as Trustee for the Next of Kin of Sara E Hagfors, Appellant,

This opinion is nonprecedential except as provided by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
A24-1539

Keith D Hagfors, as Trustee for the Next of Kin of Sara E Hagfors,
Appellant,

vs.

Fairview Health Services, et al.,
Respondents,

University of Minnesota,
Respondent,

University of Minnesota Physicians,
Respondent.

Filed August 18, 2025
Affirmed
Slieter, Judge

Ramsey County District Court
File No. 62-CV-24-2027

Andrew W. Barnhart, Barnhart Law Office, PLLC, Long Prairie, Minnesota (for appellant)

William L. Davidson, Eric J. Steinhoff, Ryan C. Ellis, Lind, Jensen, Sullivan & Peterson,
P.A., Minneapolis, Minnesota (for respondent Fairview Health Services, et al.)

Tracy A. Schramm, Geraghty O’Loughlin & Kenney, P.A., Duluth, Minnesota (for
respondent University of Minnesota)

Julia J. Nierengarten, Rodger A. Hagen, Meagher & Geer, P.L.L.P., Minneapolis,
Minnesota (for respondent University of Minnesota Physicians)

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Considered and decided by Slieter, Presiding Judge; Bond, Judge; and Kirk, Judge.∗
NONPRECEDENTIAL OPINION
SLIETER, Judge
This appeal is taken from a district court order dismissing, for lack of subject-matter
jurisdiction, appellant’s wrongful-death complaint against respondents following the death
of his wife. The district court determined that dismissal was required because the lawsuit
was not timely commenced by a trustee for the next of kin of his wife. Because we agree
that the wrongful-death action must be timely commenced by a trustee, dismissal was
proper, and we affirm.
FACTS
On March 23, 2024, appellant Keith D. Hagfors (Hagfors) petitioned the district
court to be appointed as the trustee for the next of kin of his wife, Sara Hagfors, who died
on April 9, 2021. On April 4, before the district court acted on his petition to appoint him
as his wife’s trustee, Hagfors served a summons and complaint alleging the wrongful death
of his wife upon respondents—Fairview Health Services, University of Minnesota (UMN),
and University of Minnesota Physicians (UMP). The complaint recited that Hagfors had
petitioned the district court for appointment as trustee. On April 8, the district court
appointed Hagfors as trustee for his wife. The three-year statute of limitations to
commence a wrongful -death action expired on April 9. On May 22, Hagfors served
respondents a second time with the same summons and complaint.

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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Respondents sought dismissal of the complaint under rule 12.02(a) (for lack of
subject-matter jurisdiction), arguing that, because Hagfors had failed to commence the
wrongful-death action as the appointed trustee before the expiration of the statute of
limitations, the district court lacked subject-matter jurisdiction.
The district court granted respondents’ motions to dismiss, determining that Hagfors
served the summons and complaint on the respondents before being appointed as his wife’s
trustee and that he, at that time, lacked standing to commence a wrongful-death action on
his wife’s behalf. And because the statute of limitations had expired on April 9—before
Hagfors served respondents in his capacity as trustee—the district court lacked
subject-matter jurisdiction.
Hagfors appeals.
DECISION
Hagfors challenges the district court’s determination that dismissal was required
because he had not yet been appointed as a trustee for his wife’s next of kin when the
wrongful-death summons and complaint were served within the statute-of-limitations
period.
Under rule 12.02(a), a district court must dismiss a complaint if the court lacks
subject-matter jurisdiction. Minn. R. Civ. P. 12.02(a). We review a district court’s
dismissal under rule 12.02(a) de novo. See Daniel v. City of Minneapolis, 923 N.W.2d
637, 644 (Minn. 2019) (“Subject-matter jurisdiction is a question of law that we review de
novo.”).
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“Subject-matter jurisdiction is the court’s authority to hear the type of dispute at
issue and to grant the type of relief sought.” Seehus v. Bor-Son Constr., Inc., 783 N.W.2d
144, 147 (Minn. 2010). “Generally, a statute of limitations provides an affirmative defense
that is waivable by defendants.” Ariola v. City of Stillwater, 889 N.W.2d 340, 348 (Minn.
App. 2017) (citing Albers v. Fitschen, 143 N.W.2d 841, 843 (Minn. 1966)), rev. denied
(Minn. Apr. 18, 2017). However,
[w]hen the limitations provision relates to a statutorily created
cause of action, a plaintiff’s failure to comply with the statute
of limitations requires the court to dismiss the
claim . . . “because the court in such a case has no jurisdiction
to hear the untimely claim, as compliance with the time period
is a condition of the statutory right.”
Ariola, 889 N.W.2d at 348 (quoting Carlton v. State, 816 N.W.2d 590, 601 (Minn. 2012)).
“When death is caused by the wrongful act or omission of any person or corporation,
the trustee appointed . . . may maintain an action . . . for an injury caused by the wrongful
act or omission.” Minn. Stat. § 573.02, subd. 1 (2024). To recover damages for the
wrongful death caused by a physician, hospital, or employee, the trustee must commence
the action “within three years of the date of death.” Id. It is only the trustee who may
maintain a wrongful-death action. Ortiz v. Gavenda, 590 N.W.2d 119, 122-23 (Minn.
1999) (noting that under Minn. Stat. § 573.02, it is the trustee who has the exclusive right
to maintain a wrongful-death action or to negotiate a settlement for the benefit of the next
of kin).
Hagfors offers two reasons as to why the district court erred in dismissing his
wrongful-death lawsuit. First, he argues that the district court erred in relying on Ortiz
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because Ortiz is wrongfully decided for a number of proffered reasons. 1 Second, Hagfors
claims that the district court erred in dismissing his wrongful- death complaint because he
timely commenced the action because the May service of the summons and complaint
complied with Minn. R. Civ. P. 3.01(c).
We first dispense with Hagfors’ claim that Ortiz was incorrectly decided. We are
an error-correcting court, and our function “is limited to identifying errors and then
correcting them.” Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (citations
omitted). “The court of appeals is bound by supreme court precedent.” State v. Curtis,
921 N.W.2d 342, 346 (Minn. 2018). And as to Hagfors’ contention that Ortiz created a
“harsh rule,” though we appreciate his sentiment given the unfortunate death of his wife,
the answer to this contention has been provided by the supreme court. Id.
Application of Ortiz
In Ortiz, the Minnesota Supreme Court held that (1) “[a] plaintiff’s failure to
commence a wrongful death action as a court -appointed trustee for the next of kin of the
decedent within the statutory time limit precludes [him] from maintaining the action[,]”
and (2) “[t]he filing of a wrongful death action without the appointment of a trustee during
the statutory filing period was a nullity.” 590 N.W.2d at 120. In Ortiz, the complaint was
served before the expiration of the statute of limitations for wrongful-death actions, but the
plaintiff had not been appointed trustee before the statute of limitations expired. Id. at

1 Hagfors also argues that the statement in Ortiz that appointment of a trustee is a condition
precedent to commencing a wrongful -death action pursuant to the wrongful-death statute
is dictum. For the reasons we set forth below in our discussion of the application of Ortiz,
we reject this claim.
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120-21. The supreme court was therefore forced to address whether appointment needed
to occur before commencement of a wrongful-death action. Id. at 121-22.
In Ortiz, the supreme court emphasized that it has “consistently reaffirmed the
importance of [a trustee’s] filing [of] a wrongful death action within the time fixed by
Minn. Stat. § 573.02[.]” Id. at 122. Reiterating the importance for “strict compliance”
with section 573.02, the supreme court cited to its previous decision in Regie de
l’assurance Auto. du Quebec v. Jensen, 399 N.W.2d 85 (Minn. 1987), “where [it] held that
because appointment of a trustee was a condition precedent to bringing a wrongful death
action under Minn. Stat. § 573.02, an action filed without it was a ‘legal nullity.’” Ortiz,
590 N.W.2d at 122-23.
Here, prior to his appointment as a trustee, Hagfors personally served the
wrongful-death complaint on April 4, 2024, on all respondents. Therefore, just like in
Ortiz, Hagfors’ service of the wrongful-death summons and complaint before he was
appointed trustee was a legal nullity. Id. And, because the statute of limitations thereafter
expired without commencement by Hagfors in his capacity as a trustee, the district court
lacked subject-matter jurisdiction and properly dismissed the complaint. See id. at 122
(stating that “limitation provisions in a statutorily created cause of action are
jurisdictional”); see also Ariola, 889 N.W.2d at 348 (noting that a district court does not
have jurisdiction over statutorily untimely claims).
Rule 3.01(c)
Hagfors argues alternatively that, even if the district court properly dismissed his
wrongful-death action for the reasons set forth in Ortiz, he successfully commenced the
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action before the expiration of the limitation period by service under Minn. R. Civ. P.
3.01(c). Under rule 3.01(c), an action is commenced
when the summons is delivered for service to the sheriff in the
county where the defendant resides personally, by U.S. Mail
(postage prepaid), by commercial courier with proof of
delivery, or by electronic means consented to by the sheriff ’s
office either in writing or electronically; but such delivery shall
be ineffectual unless within 60 days thereafter the summons is
actually served on that defendant or the first publication thereof
is made.

Hagfors argues that because he had emailed all the pleadings to the Hennepin and
Ramsey County Sheriff’s Offices on April 3, before he was appointed trustee, but then
re-served the respondents in May after he was appointed trustee those original emailed
pleadings “by operation of law, changed from legal nullities into pleadings with a legal
effect” and, therefore, effected commencement of the action within the statute of
limitations. We are unpersuaded.
Hagfors provides no legal authority for this claim, and we have found none.
Moreover, the record shows that all respondents were personally served the summons and
complaint on April 4, before Hagfors was appointed trustee, which rendered the served
documents a legal nullity. Ortiz, 590 N.W.2d at 122-23. And because the re-service in
May was after the statute of limitations had expired, the district court properly dismissed
the complaint for lack of subject-matter jurisdiction.
Affirmed.