author: MEYER, Justice.

text:
    George M. ROEHRDANZ, Appellant, v. Toby BRILL, Respondent.
    No. CX-03-137.
    Supreme Court of Minnesota.
    July 15, 2004.

      David F. Herr, Laurie A. Kindel, Maslon Edelman Borman & Brand, LLP, George M. Roehrdanz, Minneapolis, MN, for Appellant.

      Andrew D. Parker, Ryan P. Winkler, Smith Parker, PLLP, Minneapolis, MN, for Respondent.
    William M. Hart, Damon L. Highly, Meagher & Geer, PLLP, Galen Robinson, Legal Aid Society of Minneapolis, Minneapolis, MN, for amicus Legal Aid Society of Minneapolis.
   OPINION

MEYER, Justice.

We are asked to decide the proper method for service of a demand to remove a conciliation court action to district court. The court of appeals held that service by mail of a demand for removal to district court is not effective unless the responding party returns an acknowledgment of service as required by Minn. R. Civ. P. 4.05. We reverse and hold that a party appealing a conciliation court judgment may effectively serve a demand for removal by mail without receiving an acknowledgment of service. We also hold that the district court did not abuse its discretion in refusing to vacate a default judgment entered against respondent Toby Brill.

On May 7, 2002, George Roehrdanz, the appellant, filed a statement of claim in conciliation court for the collection of $7,500 in attorney fees against his former client, Toby Brill. A Hennepin County sheriff personally served a summons on Brill on May 13, 2002, at 1212 Yale Place, Minneapolis, pursuant to Minn. Gen. R. Prac. 508(d)(1). Brill responded to Roehrdanz’s statement of claim and filed a counterclaim that stated her address as 5115 Excelsior Boulevard, Minneapolis. The conciliation court held a hearing on June 17, 2002, and awarded no damages to either party and entered judgment accordingly. The next day, the district court administrator mailed a notice of judgment to the parties. The court sent the notice to Brill at 1212 Yale Place, the address where she had been personally served with the complaint.

On July 2, 2002, within 20 days of the mailing of the conciliation court judgment as required by Minn. Gen. R. Prac. 521(b), Roehrdanz filed a demand for removal of the case to district court on a form provided by the district court. On the same day, Roehrdanz mailed a copy of the demand for removal to Brill at 1212 Yale Place. The demand for removal did not contain an acknowledgment of service by mail. On July 9, 2002, the district court mailed to Brill at 1212 Yale Place a “Notice of Judicial Officer Assignment,” and on July 17, 2002, an order setting the date for trial. Brill did not appear at the October 18, 2002, trial. The court proceeded with a default hearing and at the hearing Roehrd-anz offered proof of the debt that Brill owed him. On October 29, 2002, the district court entered a default judgment against Brill in the amount of $7,949.06 and mailed notice of the default judgment to 1212 Yale Place.

On November 18, 2002, Brill moved to vacate the default judgment, claiming that she did not reside at 1212 Yale Place and therefore did not receive the demand for removal until after the default judgment had been entered. She asserted that Roehrdanz’s service of the demand for removal was ineffective because it did not contain an acknowledgment of service and therefore did not comply with the requirements for service by mail set forth in Minn. R. Civ. P. 4.05.

The district court held a hearing at which it considered conflicting affidavits submitted by Brill and Roehrdanz. Brill submitted an affidavit that alleged that she did not reside at 1212 Yale Place and therefore did not receive the demand for removal until after the default judgment had been entered. She stated that she moved to a new address in May 2002 and first learned of the default judgment on November 7, 2002, when she collected her mail at 1212 Yale Place. Roehrdanz submitted an affidavit from Brill’s landlord, which stated that Brill was a tenant at 1212 Yale Place from 1993 through November 2002 and that, around the time of the default judgment, the landlord frequently observed Brill’s van in the building’s parking lot. Roehrdanz submitted his own affidavit, in which he claimed that he knew Brill resided in the vicinity of 1212 Yale Place because he had seen her at various neighborhood functions. He claimed to have confirmed his belief by checking Brill’s address in the Minneapolis white pages before he filed the conciliation court action. The affidavit also stated that he assumed the Excelsior Boulevard address was the location of Brill’s office, as her business letterhead listed her address as “5115 Excelsior Boulevard, Suite 401.”

The district court found that 5115 Excelsior Boulevard was a Mailboxes Etc. location where Brill had maintained a post office box for many years. The court found that 1212 Yale Place was, at all relevant times, Brill’s home address. In addition to relying on affidavits, the court noted that Brill failed to offer any proof, such as a driver’s license or utility bill, that she resided somewhere other than 1212 Yale Place. Based upon the evidence, the district court concluded that Brill did not have a reasonable excuse for her failure to appear at the October 18 hearing and denied the motion to vacate the judgment.

Brill appealed the denial of her motion to vacate the default judgment. The court of appeals reversed the district court, holding that Roehrdanz’s attempt to serve Brill by mail with the demand for removal to district court was ineffective because Roehrdanz did not receive an acknowledgment of service from Brill, as required by Minn. R. Civ. P. 4.05. Roehrdanz v. Brill, 668 N.W.2d 217, 221 (Minn.App.2003). Because the court concluded that service was ineffective, it reasoned that the district court did not have jurisdiction over the removed action. Id. We granted Roehrdanz’s petition for review and issued an interim order that allowed litigants to perfect removal by following either the procedures of Minn. Gen. R. Prac. 521(b) or Minn. R. Civ. P. 4.05.

I.

The first question in this case is whether a litigant may remove an action to district court by following the procedure set forth in Rules 501-525 of the General Rules of Practice, the rules we specifically promulgated to govern practice in conciliation courts, or whether the litigant must follow the more complicated procedure for service required for initiating a civil action under the Rules of Civil Procedure. Whether service of process was effective is a question of law that we review de novo. Patterson v. Wu Family Corp., 608 N.W.2d 863, 866 (Minn.2000).

Minnesota Statutes § 491A.02, subds. 6-9 (2002), relates to appeals from conciliation courts to district courts. Subdivision 6 of section 491A.02 states that the rules for conciliation courts promulgated by this court, Rules 501-525 of the General Rules of Practice, “must provide for a right of appeal from the decision of the conciliation court by removal to the district court for a trial de novo.” Pursuant to section 491A.02, we promulgated Rule 521, enti-tied “Removal (Appeal) to District Court,” which provides in relevant part:

(b)' To effect removal, the aggrieved party must perform all the following within twenty days after the date the court administrator mailed to that party notice of the judgment order:
(1) Serve on the opposing party or the opposing party’s lawyer a demand for removal of the cause to district court for trial de novo. Service shall be by first class mail. Service may also be by personal service in accordance with the provisions for personal service of a summons in district court.

Minn. Gen. R. Prac. 521(b)(1) (emphasis added).

The General Rules of Practice do not require the return of an acknowledgment of service. On the other hand, service of a summons and complaint under the Rules of Civil Procedure may be accomplished by mail only if an acknowledgment of service is returned:

In any action service may be made by mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served, together with two copies of a notice and acknowledgment conforming substantially to Form 22 and a return envelope, postage prepaid, addressed to the sender. If acknowledgment of service under this rule is not received by the sender within the time defendant is required by these rules to serve an answer, service shall be ineffectual.

Minn. R. Civ. P. 4.05 (emphasis added).

The Rules of Civil Procedure contain several provisions that define the scope of the rules. Rule 1 specifies that the Rules of Civil Procedure govern the procedure in district courts “with the exceptions stated in Rule 81.” Minn. R. Civ. P. 1. Rule 81.01(a) excepts from the rules “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.” ‘Appeals from conciliation court to district court are not listed in Appendix A. However, Rule 81.02, entitled “Appeals to District Courts,” states that the Rules of Civil Procedure “do not supersede the provisions of statutes relating to appeals to the district courts.”

The court of appeals concluded that the service requirements of the Rules of Civil Procedure apply to actions that are removed from conciliation court, basing its decision on the notion that removal to district court constitutes commencement of a new civil action. Because the removal is tantamount to the commencement of a new civil action, the court reasoned that the Rules of Civil Procedure control. The court found support for this reasoning in two court of appeals decisions: Wilkins v. City of Glencoe, 479 N.W.2d 430, 432 (Minn.App.1992), and Reichel v. Hefner, 472 N.W.2d 346, 348 (Minn.App.1991).

Brill urges this court to affirm the court of appeals and hold that service by mail of a demand for removal is effective only if an acknowledgment of service is returned, as required by the Rules of Civil Procedure. She relies heavily on the statements in Rules 1 and 81.01 that the Rules of Civil Procedure govern all actions unless they are specifically excepted in Appendix A of the rules. Brill urges us to adopt the court of appeals’ conclusion that removal initiates a new civil action and hold that the service requirements of Minn. R. Civ. P. 4.05 apply to the removal of actions from conciliation court to district court.

Roehrdanz argues that the General Rules of Practice do not conflict with the Rules of Civil Procedure in that they are specifically tailored to conciliation court actions. He notes that conciliation court actions are merely a subset of district court civil actions which, because of the small amount in controversy, may be heard in a less formal forum. See Minn.Stat. § 491A.01, subd. 1 (2002) (“The district court in each county shall establish a conciliation court division with the jurisdiction and powers set forth in this chapter”). Accordingly, Roehrdanz disputes the applicability of the court of appeals’ decisions in Reichel and Wilkins that a new civil action is commenced when it is removed to district court. Additionally, Roehrdanz argues that the court of appeals’ decision in this case creates an unworkable regime, essentially forcing parties to forgo the streamlined procedures for removal set forth in the General Rules of Practice and instead initiate personal service under the Rules of Civil Procedure.

We do not agree with Roehrdanz’s position that the General Rules of Practice do not conflict with the Rules of Civil Procedure. It is fair to say that the more specific rule under the General Rules of Practice is in conflict with the more general rule under the Rules of Civil Procedure. We resolve that conflict by applying the specific rule over the general rule. See State v. Ronquist, 600 N.W.2d 444, 447 (Minn.1999) (stating that specific statutes govern' over1 general statutes); Nguyen v. State Farm Mut. Auto. Ins. Co., 558 N.W.2d 487, 490 (Minn.1997) (stating that the rules of statutory construction apply to interpretation of court rules). Under Rule 521(b) of the General Rules of Practice, Roehrdanz may have accomplished removal by either personal service or service by first-class mail. Because Roehrdanz served the demand for removal by first-class mail in accordance with Rule 521, service was effective.

We share Roehrdanz’s concerns about the practical effects of the court of appeals’ holding. An aggrieved party is required to remove an action within 28 days of the mailing of a conciliation court decision. Minn. Gen. R. Prac. 521(b) (establishing 20-day time limit) & 1993 Comm. Cmt. (adopting holding of Wilkins, 479 N.W.2d at 431, that a party receives a three-day extension if notice of judgment is mailed). If service were not effective until. an acknowledgment of service was returned, a party receiving a demand for removal by mail could easily thwart an appeal by simply refusing to return the acknowledgment of service. As a practical matter, the possibility of losing the right to remove to the district court would force parties to initiate.the costly and complicated procedure of personal service.

For all of these reasons, we reverse the court of appeals and hold that Roehrdanz effectively served Brill with the demand for removal of their action to district court. Because service was effective, the district court did not lack jurisdiction to enter default judgment against Brill.

II.

We next decide whether the district court abused its discretion by denying Brill’s motion to vacate the default judg-. ment against her. See Minn. R. Civ.App. P. 103.04 (providing that the appellate courts “may review any order involving the merits or affecting the judgment”). The court of appeals did not reach this issue.

. This court will not. overturn a ruling on a motion to vacate a default judgment unless the district court abused its discretion. Foerster v. Folland, 498 N.W.2d 459, 460 (Minn.1993). We give deference to the factual findings of the district court unless they are clearly erroneous. • Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn.1999). The discretion of the district court in opening a default judgment is particularly broad when the court’s decision is based upon an evaluation of conflicting affidavits. Roe v. Widme, 191 Minn. 251, 252-53, 254 N.W. 274, 275 (1934).

Rule 60.02 of the Rules of Civil Procedure allows a district court to relieve parties of the effects of adverse judgments. District courts decide requests for relief from judgment under Rule 60.02 by the application of a four-prong test enunciated in Finden v. Klaas, 268 Minn. 268, 271, 128 N.W.2d 748, 750 (1964). To obtain relief, a party must establish: (1) a reasonable defense on the merits; (2) a reasonable excuse for the failure or neglect to answer; (3) duly diligent action after notice of entry of the judgment; and (4) that no prejudice will occur to the judgment creditor. Id., 128 N.W.2d at 750; accord Charson v. Temple Israel, 419 N.W.2d 488, 491 (Minn.1988).

Brill argues that the district court abused its discretion by finding that she did not have a “reasonable excuse” for failing to appear in the appeal from conciliation court. She reasserts her position that she did not reside at 1212 Yale Place and suggests that the district court should have given some weight to her assertion that she failed to appear in the conciliation court appeal because she was working out of town and caring for ill family members.

We believe that the district court was well within its discretion in denying Brill’s motion to vacate the default judgment. The record is clear that the court credited the affidavit of Brill’s landlord that she resided at 1212 Yale Place through November 2002 over Brill’s assertion that she moved in May 2002. The court considered other evidence that created inconsistencies with Brill’s allegations, such as the listing in the Minneapolis telephone directory provided by Roehrdanz, the evidence that Brill was previously served at her apartment on Yale Place, and the failure of Brill to offer any proof that she resided at another address. Because the court made findings of fact based upon conflicting evidence and applied the correct Finden analysis to those findings, we hold that the district court’s denial of Brill’s motion did not constitute an abuse of discretion.

Reversed.

      . The sheriff personally served Brill with the statement of claim at 1212 Yale Place on May 13, 2002, the month in which she alleged she moved to a different address.


source: Caselaw Access Project

author: ROBERT H. SCHUMACHER, Judge.

license: Public Domain

text:
    Luella J. GATFIELD, petitioner, Appellant, v. Edward C. GATFIELD, Jr., Respondent.
    No. A03-1618.
    Court of Appeals of Minnesota.
    July 6, 2004.

      Stephen J. Beseres, New Hope, MN, for appellant.
    Daniel L. Giles, Marshall, MN, for respondent.
    Considered and decided by KALITOWSKI, Presiding Judge; SCHUMACHER, Judge; and HUSPENI, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

ROBERT H. SCHUMACHER, Judge.

Appellant-wife Luella J. Gatfield challenges the district court’s denial of her motion to either enforce the stipulated provisions of the judgment dissolving her marriage to respondent-husband Edward C. Gatfield, Jr. that addresses husband’s military retirement benefits or to have husband pay her permanent maintenance. Wife argues that Mansell v. Mansell, 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989), does not deprive the district courts of the ability to enforce the stipulated provision of a dissolution judgment in which a veteran agrees not to waive military retirement pay in favor of disability pay and to pay 50% of the gross military pay if retirement pay is waived in favor of disability pay.

Wife also argues the district court erred in denying her motion for spousal maintenance by not taking into account the change in circumstances of the parties caused by husband’s unilateral act of breaching the parties’ agreement. We reverse and remand.

FACTS

Husband and wife were married in 1972. In that same year, husband joined the United States Navy. In December 1995, a Virginia circuit court dissolved their marriage. The decree specifically incorporates the parties’ stipulation. The stipulated provision of the judgment regarding husband’s military retirement benefits provides

as an obligation ... commencing November 1, 1993, and continuing on 1st day of each month thereafter (as to the monthly annuity) there shall be paid directly to wife, by government allotment, as a direct obligation of the government plan administrator by direct assignment to wife from the plan administrator, fifty percent (50%) of the total (as the same may vary hereafter) monthly disposable U.S. military retired pay, retirement benefits of husband to which husband is entitled under the laws administered by the Secretary of the service from which he retired.
“Disposable” retired pay means disposable retired pay of a member subject to division under the Uniformed Services Former Spouse’s Protection Act (10 U.S.C. 1408).
For any months that wife does not receive a payment from the plan administrator and husband does, it shall be the duty of husband to make the payment promptly and directly to wife.
Husband covenants, represents, warrants and agrees that he will not waive any portion of any longevity retired, retirement or retainer pay in order to elect disability or other pension or lump sum or severance pay or other compensation in lieu thereof and agrees to renounce the right to make such waiver and election and to elect an alternative form of retirement. In the event husband does in violation hereof, he shall upon receipt pay to wife fifty percent (50%) thereof.

At some point, husband opted to receive military disability pay and waived an equivalent portion of his military retirement pay. In an affidavit submitted to the district court, husband states he has been receiving partial disability since November 1, 1993, and wife was aware he had waived part of his retirement pay in lieu of military disability pay before the parties entered into the stipulation. Wife denies any knowledge of when husband first opted to receive military disability pay.

Since the time husband initially waived his military retirement pay in favor of military disability pay, he has periodically undergone physical examination by the Veterans Administration to determine his level of service-related disability and thus the amount of military disability pay he is entitled to receive. At the time husband submitted his affidavit, the Veterans Administration had determined husband was 60% disabled by service related injuries and was entitled to $893 per month in disability pay.

In wife’s affidavit, she states that her initial monthly share of husband’s military retirement pay was $445. But the amount she receives has consistently decreased and she is currently receiving approximately $60 per month.

In 2001, wife moved the district court to order husband to abide by the terms of the stipulation, to compensate her for the reduced amount she had received as her share of husband’s retirement pay since late 1993, and to award her permanent spousal maintenance. The district court denied wife’s motions, concluding:

The Veteran’s Administration Disability Benefits cannot be subject to a property claim by a spouse, and the ability of State Courts to award such benefits to a spouse has been preempted by Congressional Statute, and that preemption has been upheld by.the United States Supreme Court in the case of Mansell v. Mansell, 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989).
The request for maintenance must also be denied at this time. There is not sufficient current information to indicate a need. The medical information is not current, and in fact is almost four years out of date. The Court is not satisfied that there has been a sufficient showing of attempts to seek work, or current proof of physical inability to perform work on the part of [wife]. Moreover, [husband] is currently on unemployment being laid off at Arteyson Technologies, and is not in a current position to pay maintenance unless the disability benefits were used.

ISSUE

Did the district court err in determining that it could not address the merits of wife’s request to enforce the stipulated provisions of the dissolution judgment addressing husband’s military retirement benefits?

ANALYSIS

Wife argues the district court erred in determining that the application of Mansell v. Mansell, 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989), to the facts of the present case prevented it from considering her motion to require husband to pay her one-half of his military disability pay based on the stipulated provision of the judgment dissolving the parties’ marriage. Whether federal law preempts a state court from addressing the general class or category to which the proceedings in question belong is a jurisdictional question. State v. R.M.H., 617 N.W.2d 55, 60 (Minn.2000); see also In re Trusteeship created by City of Sheridan, 593 N.W.2d 702, 705 (Minn.App.1999) (stating subject-matter jurisdiction is “court’s power to hear and determine cases of the general class or category to which proceedings in question belong”). This court reviews questions of jurisdiction de novo. McLain v. McLain, 569 N.W.2d 219, 222 (Minn.App.1997),, review denied (Minn. Nov. 18, 1997).

We note wife argues that if this court concludes Minnesota law prevents enforcement of the stipulated provisions of the dissolution judgment, we should also consider the law of Virginia in place at the time the parties agreed to the stipulation. The stipulated provisions of the dissolution judgment explicitly provide that any dispute- concerning the stipulated provision of the judgment shall be resolved in accordance with Virginia law. But the sole question before us is whether the district court had jurisdiction. To the extent wife is arguing Virginia law should apply to our resolution of the jurisdictional question, we disagree. Whether a Minnesota court has jurisdiction to hear a case is determined by Minnesota law and by binding federal precedent. See, e.g., Stanek v. A.P.I., Inc., 474 N.W.2d 829, 832 (Minn.App.1991) (stating personal jurisdiction depends on Minnesota’s long-arm statute and federal due process concerns), review denied (Minn. Oct. 31, 1991). On remand, however, the district court will need to apply Virginia law to resolve any conflicts regarding the stipulated provisions.

The United States Supreme Court in Mansell was asked to determine whether under the Uniformed Services Former Spouses Protection Act, state courts “may treat as property divisible upon divorce military retirement pay waived by the retiree in order to receive veterans’ disability benefits.” 490 U.S. at 583, 109 S.Ct. at 2025. The Supreme Court held “that the Former Spouses’ Protection Act does not grant state courts the power to treat as property divisible upon divorce military retirement pay that has been waived to receive veterans’ disability benefits.” Id. at 594-95,109 S.Ct. at 2032.

Husband argues that the Supreme Court’s holding in Mansell deprives state courts of jurisdiction to enforce the terms of a stipulation regarding military disability benefits and points to the existence of a stipulation in Mansell. Although the Supreme Court in Mansell did note the existence of a stipulation between the parties, we agree with other states that have addressed this issue that the Supreme Court’s holding is narrow. See, e.g., In re Marriage of Mansell, 217 Cal.App.3d 219, 265 Cal.Rptr. 227, 232 (1989) (stating “Supreme Court’s holding was quite narrow: FUSFSPA does not alter, with regard -to non-disposable retired or retainer pay (including the pay at issue herein), the already-existing federal statutory structure which, according to [McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981)] preempts state community property law”), review denied (Cal. Mar. 29, 1990).

Neither the Supreme Court’s holding in Mansell nor the Uniformed Services Former Spouses Protection Act precludes a veteran from voluntarily entering into a contract whereby he or she agrees not to waive retirement pay in favor of disability benefits and to indemnify a former spouse for any loss the spouse might incur should the veteran choose to waive any portion of retirement pay. See, e.g., Krapf v. Krapf 439 Mass. 97, 786 N.E.2d 318, 326 (2003) (“Nothing in 10 U.S.C. § 1408 or in the Mansell case precludes a veteran from voluntarily entering into a contract whereby he agrees.to pay a former spouse a sum of money that may come from the VA disability benefits he receives.”); Shelton v. Shelton, 78 P.3d 507, 511 (Nev.2003) (holding states are not precluded from applying contract law, even when military disability benefits are involved); Hisgen v. Hisgen, 554 N.W.2d 494, 498 (S.D.1996) (holding trial court could order husband to pay wife part of disability pay based on parties’ divorce settlement agreement).

When parties agree to dissolve their marriage under certain terms, that stipulation is “accorded the sanctity of [a] binding contract.” Shirk v. Shirk, 561 N.W.2d 519, 521 (Minn.1997). It is well settled that in a stipulation, parties are free to bind themselves to obligations that a court could not impose. LaBelle v. LaBelle, 302 Minn. 98, 111, 223 N.W.2d 400, 408 (1974); see also Geiger v. Geiger, 470 N.W.2d 704, 707 (Minn.App.1991) (stating “stipulations may waive parties’ statutory rights in dissolution cases”), review denied (Minn. Aug. 1, 1991). The Supreme Court’s holding in Mansell is not contrary to this well-settled principle.

We note that in Minnesota, once a district court incorporates a stipulation agreement into a dissolution judgment, the agreement merges with the judgment and “cannot thereafter be the target of attack by a party seeking relief from the judgment.” Shirk, 561 N.W.2d at 522. When seeking to enforce a dissolution judgment entered by a Minnesota court, the moving party actually seeks to enforce the stipulated provision of the judgment and not the terms of the stipulation itself. But we do not read Shirk to hold that the merger of the stipulation into the judgment changes the voluntary nature of the stipulated provisions or prevent the district court from adopting the stipulated provisions that bind the parties to perform obligations that the court could not impose. Indeed, here there is no attack on a stipulated provision; wife is seeking to enforce the provision.

Therefore, whether a party seeks to enforce the terms of the stipulation agreement, as may be the case when the parties’ marriage was dissolved in another state, or whether the party seeks to enforce the stipulated provision of a Minnesota dissolution judgment, federal law does not preempt state district courts from enforcing the stipulated terms/provisions. To rule that Mansell precludes enforcement of the stipulated provisions of a Minnesota judgment because the provisions are part of a judgment but no longer have a separate existence as part of a now-merged-into-judgment stipulation, would be to create separate scopes of enforceability' — one for non-Minnesota judgments and a narrower scope of enforceability for stipulated Minnesota judgments.

We conclude the Supreme Court’s decision in Mansell does not prevent state courts from enforcing the stipulated provisions of a dissolution judgment that husband will not waive his retirement pay in favor of military disability pay, and if he does, he will pay wife 50% of the total military pay he receives. Because the district court did not reach the merits of wife’s claim, we remand to the court to determine the terms of the parties’ stipulation and to what extent husband might have breached those terms.

.We note husband argues the Kansas appellate court had the correct understanding of Mansell in In re Marriage of Pierce, 26 Kan.App.2d 236, 982 P.2d 995 (1999). But the Kansas appellate court specifically noted: “[Husband] has not violated the terms of the property settlement agreement. There is absolutely nothing in that agreement that forbids [husband] from waiving all of his retirement pay in order to receive his disability benefits.” Id. If we accepted husband’s argument that Pierce is the correct understanding of Mansell, it does not call for a different result in this case. Here, wife alleges that husband had violated the terms of their stipulation preventing him from waiving retirement pay in order to receive disability pay.

Wife also argues the district court erred in denying her motion for spousal maintenance because there was a change in her financial circumstances. We are unable to determine how the district court concluded that wife does not have a need for maintenance if husband is not required to abide by the terms of the stipulation. It is also unclear whether the district court determined that husband’s disability pay could not be used to calculate his income. See Minn.Stat. § 518.54, subd 6 (2002) (defining income to include “military and naval retirement, pension and disability payments”).

Because there is ambiguity as to how the district court reached its decision on spousal maintenance, we also remand this issue. See Stich v. Stich, 435 N.W.2d 52, 53 (Minn.1989) (remanding where district court failed to make adequate maintenance-related findings). The essential consideration in the award of maintenance is the financial need of the party receiving maintenance and his or her ability to meet that need balanced against the financial condition of the spouse who will be providing the maintenance. Novick v. Novick, 366 N.W.2d 330, 334 (Minn.App.1985). Under section 518.552, the district court may award maintenance if

it finds that the spouse seeking maintenance:
(a)lacks sufficient property, including marital property apportioned to the spouse, to provide for reasonable needs of the spouse considering the standard of living established during the marriage, especially, but not limited to, a period of training or education, or
(b)is unable to provide adequate self-support, after considering the standard of living established during the marriage and all relevant circumstances, through appropriate employment, or is the custo- ■ dian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.

Minn.Stat. § 518.552, subd. 1 (2002).

If the district court determines that a maintenance award is proper, it will then need to determine the amount and duration of maintenance based on the relevant factors enumerated in section 518.552, subdivision 2, including

(a) the financial resources of the party seeking maintenance, including marital property apportioned to the party, and the party’s ability to meet needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
(b) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, and the probability, given the party’s age and skills, of completing education or training and becoming fully or partially self-supporting;
(c) the standard of living established during the marriage;
(d) the duration of the marriage and, in the case of a homemaker, the length of absence from employment and the extent to which any education, skills, or experience have become outmoded and earning capacity has become permanently diminished;
(e) the loss of earnings, seniority, retirement benefits, and other employment opportunities forgone by the spouse seeking spousal maintenance;
(f) the age, and the physical and emotional condition of the spouse seeking maintenance;
(g) the ability of the spouse from whom maintenance is sought to meet needs while meeting those of the spouse seeking maintenance; and
(h) the contribution of each party in the acquisition, preservation, depreciation, or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker or in furtherance of the other party’s employment or business.

Minn.Stat. § 518.552, subd. 2 (2002). “No single statutory factor or consideration for determining the amount and duration of spousal maintenance is dispositive.” Elwell v. Elwell, 372 N.W.2d 67, 69 (Minn.App.1985).

We note that the original dissolution judgment in this case reserved the issue of spousal maintenance. Thus, the issue is not whether circumstances have changed to such a degree that the dissolution judgment could be modified under Minn.Stat. § 518.64 (2002), but whether, under the factors enumerated in Minn.Stat.- § 518.552 (2002), wife is entitle to maintenance. Zamora v. Zamora, 435 N.W.2d 609, 611 n. 1 (Minn.App.1989).

DECISION

The United States Supreme Court’s decision in Mansell does not prevent the district court from considering whether husband violated provisions of the parties’ stipulation.

Reversed and remanded.


author: LANSING, Judge.

text:
    SAVE OUR CREEKS, Respondent, v. CITY OF BROOKLYN PARK, Appellant.
    No. A03-1794.
    Court of Appeals of Minnesota.
    July 6, 2004.

      Richard Brian Bates, St. Paul, MN, for respondent.
    George C. Hoff, Justin L. Templin, Hoff, Barry & Kuderer, P.A., Eden Prairie, MN, for appellant.
    Considered and decided by SCHUMACHER, Presiding Judge; LANSING, Judge; and STONEBURNER, Judge.
   OPINION

LANSING, Judge.

The City of Brooklyn Park appeals from an order denying its motion to dismiss respondent corporation Save Our Creeks’s (SOC) declaratory-judgment action. The city argues that the district court erred in concluding that a complaint signed by a nonlawyer on behalf of SOC, in derogation of the rule that a corporation must be represented by counsel in a legal proceeding, could be amended to add an attorney’s signature. The city also argues that the district court erred in allowing the amendment to relate back to the original pleading to forestall the running of the statute of limitations. Because we conclude that the amendment and the relation back were proper, we affirm.

FACTS

On August 7, 2003, respondent Save Our Creeks, a Minnesota corporation, brought a timely declaratory-judgment action against appellant City of Brooklyn Park, challenging the denial of its petition for an environmental-impact statement. The complaint clearly set forth the nature of SOC’s claims against the city. It was signed by William Barton, a corporate officer who was not an attorney.

On August 21, after the thirty-day statutory period for seeking review of the city’s decision had expired, the city brought a motion to dismiss, claiming that the complaint was null and that the omission of an attorney’s signature was a noncurable jurisdictional defect. On September 5, attorney Brian Bates filed a notice of appearance on behalf of the corporation. On September 22, at the hearing on the city’s motion to dismiss, Bates signed the complaint.

The district court treated the motion to dismiss as one for summary judgment and denied it. The court allowed SOC to amend the complaint, reasoning that the lack of an attorney’s signature was not fatal under Minn. R. Civ. P. 11 and that SOC had acted promptly to correct the error after becoming aware of it. The court also allowed the amendment to relate back to the original pleading to forestall the running of the statute of limitations. Pursuant to Minn. R. Civ.App. P. 103.03(i), the court then certified to this court the question whether a complaint signed by a nonlawyer on behalf of a corporation is null.

ISSUES
I. Did the district court err in allowing SOC to amend its complaint, after the statutory period for seeking review of the city’s decision had expired, to cure an initial failure to have an attorney sign the complaint on behalf of the corporation?
II. Did the district court err in allowing the amended complaint to relate back to the original pleading?

ANALYSIS

When certified questions arise from a denial of summary judgment, we review the record to determine whether genuine issues of material fact remain for trial and whether the district court erred in applying the law. Employers Mut. Cas. Co. v. A.C.C.T., Inc., 580 N.W.2d 490, 493 (Minn.1998). Absent genuine issues of material fact, we review certified questions de novo. Id.

I

The city first argues that because SOC’s complaint was signed by a nonlawyer in derogation of the rule that a corporation must be represented by counsel in a legal proceeding, the complaint is null and the district court lacks jurisdiction to consider a motion to amend. The city’s claim raises a question of first impression under Minnesota law.

Minnesota follows the common law rule that a corporation must be represented by an attorney in legal proceedings. Nicollet Restoration, Inc. v. Turnham, 486 N.W.2d 753, 754 (Minn.1992). The rule is intended to protect the public from ineptitude and delay, id. at 754-55, and “to preserve the corporation as a legal entity separate from its shareholders,” Hawkeye Bank & Trust, Nat’l Ass’n v. Baugh, 463 N.W.2d 22, 24 (Iowa 1990).

While courts unanimously agree that a corporation must be represented by counsel in a legal proceeding, they disagree on the effect that the lack of representation has. on actions taken by nonlawyers on behalf of the corporation. Some courts have concluded that such actions are a nullity and warrant dismissal or the entry of a default judgment against the corporation. See, e.g., Midwest Home Sav. & Loan Ass’n v. Ridgewood, Inc., 123 Ill.App.3d 1001, 79 Ill.Dec. 355, 463 N.E.2d 909, 912 (1984) (notice of appeal filed on behalf of corporation by person not entitled to practice law held to be a nullity); Daytona Migi Corp. v. Daytona Auto. Fiberglass, Inc., 417 So.2d 272, 274 (Fla.Dist.Ct.App.1982) (notice of appeal filed by corporate officer on behalf of corporation held to be a nullity).

When the improper representation is of a limited nature, is promptly cured, and does not substantially prejudice the opposing party, however, other courts have concluded that actions by nonlawyers on behalf of a corporation should be treated as merely defective and subject to amendment. See, e.g., Operating Eng’rs Local 139 Health Benefit Fund v. Rawson Plumbing, Inc., 130 F.Supp.2d 1022, 1024 (E.D.Wis.2001) (failure of corporation to have attorney sign answer did not warrant entry of default judgment); Boydston v. Strole Dev. Co., 193 Ariz. 47, 969 P.2d 653, 656 (1998) (notice of appeal filed by non-lawyer on behalf of corporation not automatically null, and corporation should be given reasonable time to cure defect); Hawkeye Bank, 463 N.W.2d at 26 (district court abused discretion by denying continuance to allow corporation to obtain counsel); Szteinbaum v. Kaes Inversiones y Valores, C.A., 476 So.2d 247, 252 (Fla.Dist.Ct.App.1985) (complaint filed by nonlawyer on behalf of corporation not a nullity). These courts have liberally construed the rules of civil procedure and have emphasized substance over form to advance the policy favoring resolution of cases on the merits. See, e.g., K.M.A., Inc. v. Gen. Motors Acceptance Corp., 652 F.2d 398, 399 (5th Cir.1981); Operating Eng’rs, 130 F.Supp.2d at 1024; Szteinbaum, 476 So.2d at 252.

For several reasons, we conclude that the lack of an attorney’s signature on a complaint filed on behalf of a corporation does not render the complaint null or require dismissal. First, contrary to the city’s claim, the requirement that a corporation be represented by counsel in legal proceedings is not jurisdictional. The Supreme Court has recently cautioned against the misuse of the word “jurisdictional.” Kontrick v. Ryan, — U.S. -, -, 124 S.Ct. 906, 915, 157 L.Ed.2d 867 (2004); see, also Bode v. Minn. Dep’t of Natural Res., 594 N.W.2d 257, 259 (Minn.App.1999) (similarly cautioning against misuse of term “jurisdictional”), aff'd, 612 N.W.2d 862 (Minn.2000). In Kontrick, the Court noted that “[cjourts, including this Court ... have more than occasionally [misjused the term ‘jurisdictional.’ Clarity would be facilitated if courts and litigants used the label ‘jurisdictional’ ... only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court’s adjudicatory authority.” Kontrick, 124 S.Ct. at 915 (citation, some internal quotation marks, and brackets omitted); see also Boydston, 969 P.2d at 656 (stating that notice of appeal filed by nonlawyer on corporation’s behalf does not necessarily deprive court of jurisdiction to consider motion to amend and cautioning “against the use of the word ‘jurisdiction’ beyond its core meaning”). Because the common law rule requiring that a corporation be represented by counsel in legal proceedings does not describe the classes of cases or persons within the district court’s adjudicatory authority, the rule is not “jurisdictional.”

Under Minnesota law, a civil action is generally commenced when personal service is made upon a defendant as prescribed by law. See Doerr v. Warner, 247 Minn. 98, 76 N.W.2d 505, 511 (1956) (holding that failure to -join an indispensable party is not a jurisdictional defect). The court acquires jurisdiction — even though an amendment might be necessary to correct a defect — if the summons fully informs the defendant of the nature of the claims. Nelson v. Glenwood Hills Hosps., 240 Minn. 505, 513, 62 N.W.2d 73, 78 (1953). Because the requirement that a corporation be represented by counsel in all legal proceedings does not serve an essential notice-pleading function, the omission of an attorney’s signature from a complaint filed on behalf of a corporation is not fatal when the complaint leaves no genuine doubt about the nature of the corporation’s claims.

Our view that the lack of an attorney’s signature is a curable, non-jurisdictional defect is consistent with recent Supreme Court rulings. In Becker v. Montgomery, for example, the Supreme Court held that a pro se litigant’s failure to hand sign a timely filed notice of appeal, as required by Fed R. Civ. P. 11(a), was a non-jurisdictional, and therefore curable, defect. 532 U.S. 757, 765, 121 S.Ct. 1801, 1806-07, 149 L.Ed.2d 983 (2001). The Court allowed relation back of the late signature to the timely filed notice of appeal, reasoning that “imperfections in noticing an appeal should not be fatal where no doubt exists about who is appealing, from what judgment, to which appellate court.” Id. at 767-68, 121 S.Ct. at 1808.

Similarly, in Edelman v. Lynchburg College, the Court upheld an Equal Employment Opportunity Commission (EEOC) regulation that allowed amendment of an employment-discrimination charge, timely filed with the EEOC, to add, after the filing deadline had passed, the statutorily required, but initially absent, verification. 535 U.S. 106, 116, 122 S.Ct. 1145, 1151, 152 L.Ed.2d 188 (2002). The Court reasoned that Title YII was in line with “a long history of practice” that permitted relation back of a verification missing from an original pleading. Id.

And most recently, in Scarborough v. Principi, — U.S. -, -, 124 S.Ct. 1856, 1859, — L.Ed.2d -, - (2004), the Court held, relying on the rationale in Becker and Edelman, that a timely attorney-fee application could be amended after the thirty-day filing period had run, to cure an initial failure to allege, as required by the Equal Access to Justice Act, that the government’s position in the underlying litigation lacked substantial justification.

Like the hand signature in Becker, the verification in Edelman, and the application in Scarborough, the lack of an attorney’s signature on a corporation’s pleading should not be fatal when, as in this case, no doubt exists about the nature of the claims and the theory on which the claims are based.

Second, pleadings signed on behalf of a corporation by persons without authority to do so may be treated as unsigned documents under rule 11, and, like other unsigned documents, should be stricken only if the omission of the signature is not corrected promptly. See Minn. R. Civ. P. 11 (stating that unsigned pleadings “shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party”); see also Kovilic Constr. Co. v. Missbrenner, 106 F.3d 768, 772 (7th Cir.1997) (suggesting in dictum that court might regard documents signed by person who did not file notice of appearance as equivalent of unsigned documents under Fed.R.Civ.P. 11); Operating Eng’rs, 130 F.Supp.2d at 1024 (treating answer signed by nonlawyer on behalf of corporation “as though it were unsigned”). Because Minn. R. Civ. P. 11 is identical with its federal counterpart, we look to federal case law for guidance. See, e.g., State v. Amos, 658 N.W.2d 201, 204 (Minn.2003).

Most courts agree that the lack of a signature on a pleading is a technical defect rather than a substantive violation and that technical defects are not grounds for dismissal unless the adverse party is substantially prejudiced. See, e.g., Becker, 532 U.S. at 767, 121 S.Ct. at 1808 (imperfections in noticing appeal should not be fatal absent prejudice to opposing party); United States v. Kasuboski, 834 F.2d 1345, 1348-49 (7th Cir.1987) (dismissal is appropriate only when moving party has been severely prejudiced or misled by defective pleading); Covington v. Cole, 528 F.2d 1365, 1369-70 n. 7 (5th Cir.1976) (sua sponte dismissal with prejudice not proper disposition in face of technical defect in complaint); Holley Coal Co. v. Globe Indem. Co., 186 F.2d 291, 295 (4th Cir.1950) (“The Federal Rules of Civil Procedure indicate a policy to disregard technicalities and form and to determine the rights of litigants on the merits. To that end these rules are to be liberally construed.”); see also 5 Charles Allan Wright & Arthur R. Miller, Federal Practice and Procedure § 1334 (2d ed.1990) (discussing purpose and effect of attorney’s signature on pleadings). In the absence of prejudice to the opposing party, therefore, the omission of an attorney’s signature from a pleading filed on behalf of a corporation should not be grounds for dismissal, provided the omission is promptly cured.

Third, the rule requiring that a corporation be represented by counsel in legal proceedings does not mandate a particular sanction. Dismissal is thus not required when a complaint filed on behalf of a corporation lacks an attorney’s signature, and courts may exercise discretion to determine whether an amendment is appropriate to cure the omission. See, e.g., BQP Indus., Inc. v. State Bd. of Equalization, 694 P.2d 337, 342 (Colo.App.1984), aff'd on other grounds sub nom. Gates Rubber Co. v. State Bd. of Equalization, 770 P.2d 1189 (Colo.1989) (allowing corporate taxpayers, in the exercise of discretion, to prepare and file administrative petitions for review, reasoning that completion of required form required no knowledge or skill beyond that possessed by ordinary, intelligent taxpayer and that preparation was sufficiently informal to permit completion by corporation through officer or director); Ginn v. Farley, 43 Md.App. 229, 403 A.2d 858, 861 (1979) (stating, that courts have power to define what constitutes practice of law). And in determining whether an amendment is appropriate, courts may properly rely on considerations of fault, diligence, and prejudice, similar to those applicable to motions to set aside a default judgment. See, e.g., Szteinbaum, 476 So.2d at 251.

Amendments should thus be permitted when the corporation acts without knowledge that its action was improper, the corporation diligently corrects its mistake by obtáining counsel, and the nonlawyer’s participation is minimal and results in no prejudice to the opposing party. See, e.g., Starrett v. Shepard, 606 P.2d 1247, 1253-54 (Wyo.1980) (holding that entry of a default judgment against corporation not justified when representation by nonlaw-yer was limited, representation occurred without corporation’s knowledge of its impropriety, and improper representation was followed ' by proper representation within a reasonable time). Conversely, dismissal might be appropriate when the nonlawyer’s activity on behalf of the corporation is substantial and the corporation does not take prompt action to correct the defect. See, e.g., Joseph Sansone Co. v. Bay View Golf Course, 97 S.W.3d 531, 532 (Mo.App.2003) (dismissing notice of appeal filed by nonlawyer on behalf of corporation when corporation failed to respond to court’s order directing it to have attorney enter an appearance on behalf of corporation); Niklaus v. Abel Constr. Co., 164 Neb. 842, 83 N.W.2d 904, 911 (1957) (holding that dismissal of taxpayer’s action on behalf of municipal corporation was required because “[taxpayer’s] participation in the proceedings was not casual but persistent and continuous”).

Last, a standard that requires dismissal of a pleading signed by a nonlawyer on behalf of a corporation would not advance the policy behind the rule that corporations must be represented by counsel. Indeed, dismissing a complaint as a nullity “would yield the ironic result of prejudicing the constituents of the corporation, the very people sought to be protected by the rule against the unauthorized practice of law.” Szteinbaum, 476 So.2d at 250. Dismissal would also contravene the policy favoring adjudication of cases on the merits. The courts’ interest in ensuring competent representation on behalf of corporations is better served by other sanctions against the unauthorized practice of law, including injunctive relief and disciplinary sanctions. Torrey v. Leesburg Reg’l Med. Ctr., 769 So.2d 1040, 1045 (Fla.2000). Unlike dismissal of a complaint, these sanctions appropriately focus on the misconduct of the offending actor instead of unduly penalizing the litigants by dismissing their complaint. Id. Dismissal is thus not required to further the policy behind the legal-representation requirement.

Having concluded that a pleading filed by a nonlawyer on behalf of a corporation may be amended to include an attorney’s signature, we consider whether the district court properly allowed an amendment in this case. We conclude that the amendment was appropriate. First, SOC acted without knowledge that its action was improper. The record indicates that Barton asked a district court clerk if he could file the complaint on behalf of the corporation and was told that he could. Second, the corporation promptly corrected the omission of an attorney’s signature. Barton learned of the omission on August 21, when the city filed its motion to dismiss. Bates filed a notice of appearance on behalf of the corporation on September 5, two weeks later, and signed the complaint on September 22. Third, Barton’s participation in the litigation was minimal. His actions were confined to the filing of the complaint and did not prejudice the city because the complaint properly notified the city of the corporation’s claim. Indeed, the city makes no claim that it was prejudiced by the temporary lack of an attorney’s signature. In the absence of prejudice, dismissal is an unduly harsh sanction, and the district court properly allowed SOC to amend its complaint.

II

The city argues that even if the complaint may be amended, the amendment may not. relate back to the original pleading to forestall the running of the statute of limitations. According to the city, the relation-back doctrine allows the assertion of a claim or defense inadvertently left out of a proper pleading. Because a complaint signed by a nonlawyer on behalf of a corporation is not a proper pleading, the city argues, there is no pleading to which the amendment can relate back. The city also argues that equitable principles should not be the basis for extending the time limitation of a statutorily created cause of action. We disagree.

Minnesota is a notice-pleading state. Haugland ex rel. Donovan v. Mapleview Lounge & Bottleshop, Inc., 666 N.W.2d 689, 694 (Minn.2003) (citing Barton v. Moore, 558 N.W.2d 746, 749 (Minn.1997)). The primary function of notice pleading is “to give the adverse party fair notice of the theory on which the claim for relief is based.” Id (quotation omitted). Under Minn. R. Civ. P. 15.03, “[wjhenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.” Rule 15.03 determines whether an amendment of a pleading relates back to the date of filing the original pleading, not whether an amendment should be allowed in the first instance. 1 David F. Herr & Roger S. Haydock, Minnesota Practice § 15.8, at 423 (2002).

In cases like the present case, involving the relation back of amendments between existing parties, rule 15.03 is satisfied if the amendment arose out of the conduct, transaction, or occurrence that is the subject of the original pleading. See, e.g., Swenson v. Emerson Elec. Co., 374 N.W.2d 690, 696 (Minn.1985) (relation back of amendment adding new claim allowed when defendants had sufficient notice in original complaint of essential elements of new claim and late assertion did not, therefore, infringe on defendants’ preparation of adequate defense); Heyn v. Braun, 239 Minn. 496, 501-02, 59 N.W.2d 326, 330 (1953) (allowing relation back of amendment setting forth new cause of action when amendment did not change or vary the facts alleged in the original complaint but merely amplified them); Grothe v. Shaffer, 305 Minn. 17, 21-23, 232 N.W.2d 227, 231-32 (1975) (permitting an amendment of complaint under rule 15.03 to add new plaintiff when defendants had notice of new plaintiffs claim, defendants were not unfairly prejudiced, and there was identity of interest between original and new complaint); cf. Bigay v. Garvey, 575 N.W.2d 107, 109 (Minn.1998) (holding that amended complaint alleging negligence by physician in failing to inform patient that surgical procedure was experimental did not relate back to original complaint alleging negligence during surgery, reasoning, that presurgery consultation and surgery could not be viewed as one transaction or occurrence). Indeed, when an amendment relates back to the same conduct, transaction, or occurrence set forth in the original pleading, relation back is automatic even if the earlier pleading is defective and the amendment changes the theory of recovery or asserts an entirely new claim. See Swenson, 374 N.W.2d at 696; Heyn, 239 Minn, at 501-02, 59 N.W.2d at 330; see also Minnesota Practice, supra at § 15.8.

In this case, the amendment consisted merely of the addition of an attorney’s signature and, therefore, clearly arose out of the same transaction or occurrence as the original pleading. Accordingly, the requirements of rule 15.03 were met, and the district court properly allowed the amendment to relate back to the original pleading.

The city argues that rule 15.03 does not allow relation back in this case because a lawsuit was not properly commenced, and even a liberal construction of rule 15.03 does not allow relation back to create a lawsuit where one has not been properly commenced. As mentioned previously, however, civil actions are commenced in Minnesota when a defendant is properly served with the summons and complaint. Doerr, 247 Minn, at 107, 76 N.W.2d at 511. A summons and complaint are sufficient to commence an action and confer jurisdiction over a defendant if they clearly inform the defendant that it was intended for him or her, require the defendant to answer the complaint, and give the defendant fair notice of the theory on which the claim for relief is based. See Haugland, 666 N.W.2d at 694 (Minn.2003); Flanery v. Kusha, 143 Minn. 308, 173 N.W. 652 (1919). Mistakes and irregularities in the form of the summons or other process may be readily corrected unless “it clearly appears that substantial rights of the person against whom the process issued would be prejudiced thereby.” Minn. R. Civ. P. 4.07; Tharp v. Tharp, 228 Minn. 23, 25, 36 N.W.2d 1, 2 (1949) (construing statute prescribing contents of summons liberally “to avoid defeating an action on account of technical and formal defects which could not reasonably have misled or prejudiced the defendant”); Schultz v. Oldenburg, 202 Minn. 237, 243, 277 N.W. 918, 921 (1938) (providing that “a summons in a civil action may be amended upon proper application”);

The complaint in this case notified the city that it had been sued by SOC because it denied a petition to require an environmental-impact statement in connection with the proposed construction of 608 dwelling units and gave the city fair notice of the theory on which the claim for relief was based. The summons also notified the city that it was required to answer or judgment would be entered against it. The summons and complaint were thus sufficient to commence an action against the city, even though they were not properly signed. The lack of a signature did not prejudice the city and was, therefore, correctable by amendment under Minn. R. Civ. P. 4.07. The city’s claim that an action was not commenced is thus without merit.

Relying on Ortiz v. Gavenda, 590 N.W.2d 119 (Minn.1999), and Regie de l'assurance Auto. du Quebec v. Jensen, 399 N.W.2d 85 (Minn.1987), the city also argues that the time limitation for the initiation of actions under Minn.Stat. § 116D.04, subd. 10 (2002), is jurisdictional and may not be extended on equitable grounds. Ortiz and Regie are distinguishable, however.

In Ortiz, the supreme court held that the filing of a wrongful-death action was a nullity because a trustee had not been appointed as required by subdivisions 1 and 3 of the Minnesota Wrongful Death Act, Minn.Stat. § 573.02 (1998), and the appointment of a trustee was a condition precedent to bringing a wrongful-death action. Ortiz, 590 N.W.2d at 122-23. Because the appointment of a trustee was a statutory prerequisite to filing a wrongful-death action, the claim filed without the appointment of a trustee was legally null. Id. In Regie, the supreme court refused to allow a relation-back amendment to a sub-rogation claim that should have been brought as a wrongful-death claim by -an appointed trustee. Regie, 399 N.W.2d at 92. As in Ortiz, the court reasoned that the original action was a nullity because the appointment of a trustee was a statutory prerequisite or condition precedent to bringing a wrongful-death action. Id.

Unlike the wrongful death act, which requires the appointment of a trustee as a condition precedent to filing an action, Minn.Stat. § 116D.04, subd. 10, does not require that a corporation be represented by counsel as a condition precedent for bringing a declaratory-judgment action challenging the denial of an environmental-impact statement. Unlike the appointment of a trustee in the context of a wrongful-death" action, the signature requirement is a common-law requirement and has no bearing on the validity of an action under Minn.Stat. § 116D.04, subd. 10.

The fundamental difference between the wrongful-death cases and this case is that in wrongful-death cases, it is the appointment of the trustee that forms the legal capacity for a successor of the deceased to bring or to continue the action for wrongful death. MinmStat. § 573.02, subds. 1, 3 (2002). A corporation, in contradistinction, is an existing'entity with a legal capacity to sue and be sued. Minn.Stat. § 302A.161, subd. 3 (2002). Thus the absence of an attorney’s signature on a pleading is a failure of agency not an absence of an entity. SOC filed a legally valid, although improperly signed action seeking to compel preparation of an environmental-impact statement before the thirty-day limitation period in Minn.Stat. § 116D.04, subd. 10, expired. The claim is not therefore legally null, and" the amended complaint may relate back to the original complaint, provided the requirements of rule 15.03 are satisfied.

Relation back was thus appropriate in this case. The original complaint was timely filed and set out a legally sufficient claim under Minn.Stat. § 116D.04, subd. 10; the claims in the amended complaint arose out of the conduct, transaction, or occurrence set forth in the original complaint; and the city was not unfairly prejudiced by the amendment.

DECISION

The district court did not err in allowing SOC to amend its complaint to add the signature of an attorney. The court also did not err in allowing the amended complaint to relate back to the original complaint.

Affirmed.


author: . CRIPPEN, Judge.

text:
    STATE of Minnesota, Respondent, v. Andre Lashon CARTER, Appellant.
    No. A03-1215.
    Court of Appeals of Minnesota.
    July 13, 2004.

      Mike Hatch, Attorney General, and Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, St. Paul, MN, for respondent.
    Theodora K. Gaitas, Assistant State Public Defender, and Rachel- F. Bond, Special Assistant State Public Defender, Faegre & Benson LLP,'Minneapolis, MN, for appellant.
    Considered and decided by HARTEN, Presiding Judge, ANDERSON, Judge, and CRIPPEN, Judge.
   OPINION

. CRIPPEN, Judge.

Appellant challenges the validity of a dog sniff that subsequently served as a basis for the issuance of search warrants, arguing that officers needed a reasonable and articulable suspicion of criminal activity to justify the dog sniff for Fourth Amendment purposes. Because we find no precedent extending restrictions on dog-sniffing evidence to such an extent, we affirm.

FACTS

In June 2002, St. Paul police officers executed search warrants at the apartment of appellant Andre Lashon Carter, where illegal controlled substances were found, and in two storage units rented by appellant, where officers found a bag containing two firearms: a Norineo 7.62 pistol and a Beretta 9-millimeter pistol. Appellant was charged with one count of second-degree controlled-substance crime in violation of Minn.Stat. § 152.022, subds. 1(1), 3(b) (2002), and one count of possession of a firearm by an ineligible person in violation of Minn.Stat. §§ 624.713, subds. 1(b), 2; 609.11, subd. 5(b) (2002).

The district court denied appellant’s subsequent motion to suppress all evidence obtained pursuant to one of the warrants that appellant argued was not supported by probable cause. Particularly, appellant questioned the inclusion in the search warrant applications of dog-sniff evidence indicating that illegal narcotics might be present in the storage unit. After the two counts were severed for trial and the firearm-possession charge was tried, a jury found appellant guilty as charged. Appellant challenges the district court’s denial of his motion to suppress and an evidentiary ruling at trial.

ISSUES

1. Did the district court err in not suppressing items obtained pursuant to a warrant obtained partly through the report of dog-sniff evidence?

2. Did the district court err in determining the relevance of appellant’s tape-recorded telephone conversation?

ANALYSIS

I.

The United States and Minnesota Constitutions protect a person from unreasonable searches and seizures. U.S. Const, amend. IV; Minn. Const, art. I, § 10. Generally, a search is valid only if conducted pursuant to a valid search warrant. State v. Albrecht, 465 N.W.2d 107, 108 (Minn.App.1991). “A ‘search’ occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.” United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984).

The use of dogs to sniff for narcotics is viewed as unique under a Fourth Amendment analysis. United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 2644-45, 77 L.Ed.2d 110 (1983). Noting the limited intrusiveness of the dog sniff, the United States Supreme Court has stated that such an action “is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure ... [that it does] not constitute a ‘search’ within the meaning of the Fourth Amendment.” Id. The minimal intrusiveness of the dog sniff is not just limited to the technique, but also to the scope of information retrieved from its use. Id. at 707, 103 S.Ct. at 2644. (“[T]he sniff discloses only the presence or absence of narcotics, a contraband item.”). Accordingly, it is evident, generally, that because it is not a search, the Fourth Amendment is not offended when a dog sniff is performed in the absence of probable cause. See State v. Wiegand, 645 N.W.2d 125, 133 (Minn.2002) (concluding that a dog sniff around the exterior of a stopped motor vehicle is not a search requiring probable cause).

Federal and Minnesota courts have generally upheld the use of dogs to sniff out narcotics in public places. See Place, 462 U.S. at 707, 103 S.Ct. at 2644-45 (holding that a dog sniff of luggage in a public place is not a search requiring probable cause); United States v. $404,905 in U.S. Currency, 182 F.3d 643, 647 (8th Cir.1999) (holding that a dog sniff of exterior of vehicle on public highway is not a search within the meaning of the Fourth Amendment); State v. Kolb, 674 N.W.2d 238, 242 (Minn.App.2004) (“[P]olice need not have reasonable, articulable suspicion of criminal activity in order to conduct a dog sniff of the exterior of the vehicle.”).

There are limits, however, to the general conclusion that a dog sniff is not a search. For instance, the Minnesota Supreme Court has recognized that there exists a higher reasonable expectation of privacy in one’s home than in public places. See Wiegand, 645 N.W.2d at 130. But the analysis of permissible searches requires “consideration of the particular privacy interests in the place or item to be searched,” rather than application of a bright-line test. Id.

Appellant argues that under Wiegand, however, use of the dog-sniff evidence is impermissible absent a reasonable, articu-lable suspicion as to the contents of an enclosed storage unit. In Wiegand, officers initially stopped the defendant’s vehicle for a routine equipment violation. Id. at 128. Without suspecting that the defendant was under the influence of controlled substances, the officers conducted a dog sniff around the vehicle. Id. at 128-29. The supreme court held that it is necessary to have “a reasonable, articulable suspicion of drug-related criminal activity before law enforcement may conduct a dog sniff around a motor vehicle stopped for a routine equipment violation in an attempt to detect the presence of narcotics.” Id. at 135.

We reject appellant’s expansive reading of Wiegand. That holding is confined to a case where law enforcement attempts to expand the scope or duration of an investigative stop beyond the investigation of an equipment violation that was the cause for the stop. Id. The facts before us in the instant case do not present an investigative stop, and we do not find in Wiegand a universal requirement that dog sniffs be limited to cases where a reasonable, articu-lable suspicion of criminal activity is shown.

Finding no widely applicable rule in the holding of Wiegand, we necessarily determine the question before us by examining whether appellant has a reasonable expectation of privacy in the area outside his storage unit where the dog sniff occurred. Although the storage facility at issue is gated and maintained for the use of renters, appellant does not contend that the officers were not entitled to be in the proximity of his storage unit when the dog sniff occurred. Nothing in the record indicates that individuals with access to the storage facility are in any way limited or restricted from the area where the dog sniff occurred: Nor do we find evidence that appellant, as a renter, had the ability to so limit access to the area. Therefore, we conclude that there was no reasonable expectation of privacy in the semi-public area surrounding the entrance to appellant’s storage unit where the dog sniff occurred.

We note that there are broader limits to the use of unique detection devices that reveal certain information about the contents of a structure. See Kyllo v. United States, 533 U.S. 27, 34-35, 121 S.Ct. 2038, 2043, 150 L.Ed.2d 94 (2001) (holding that use of a thermal-imaging device to detect heat levels in a home constitutes a search for Fourth Amendment purposes). But we find no present authority for recognizing a legitimate privacy interest in the circumstances here, where (1) there is no intrusion inside a building; (2) it is not asserted that the structure at issue is part of a home; and (3) no question is raised as to the legitimacy of the police presence near the structure.. The district court did not err in denying appellant’s request to suppress evidence obtained by executing a search warrant that was obtained partly on dog-sniff evidence gathered in this case.

II.

Appellant asserts that the district court also erred in finding relevance in' and admitting evidence of appellant’s tape-recorded telephone convérsation from jail. “Evidentiary rulings involving the relevancy of evidence are generally left to the sound discretion of the trial court.” State v. Horning, 535 N.W.2d 296, 298 (Minn.1995). “The party claiming error has the burden of showing both the error and the resulting prejudice.” Id. The district court’s determination of relevancy considers “whether the evidence logically or reasonably tends to prove or disprove a material fact in issue, or' tends to make such a fact more or less probable, or affords the basis for or supports a reasonable inference or presumption regarding the existence of a material fact.” Id. An evidentiary error warrants a new trial only if it is prejudicial. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn.1990).

Appellant’s argument is directed at the transcript of a telephone call that he made to his mother from jail shortly after his arrest. The tape-recorded conversation occurred prior to the execution of the search warrant on appellant’s nearby storage unit and was apparently introduced to prove appellant’s knowledge of contraband inside the unit. Appellant is recorded as stating that his mother needed to check on a series of items, including his car and phones, and get to and “move around in that store on New York.” Appellant argues that the statements made during the conversation were “too vague and too speculative” to allow the jury to make reasonable inferences from their content.

At trial, Officer Michael Conroy testified that he reviewed inmate phone calls for evidence and explained that appellant in his call made three references to moving items in the “store on New York.” Officer Conroy stated that he took appellant’s statements as referring to the storage facility where the search warrant was executed because the facility’s entrance was less than half a block away from York Avenue.

Although the entire conversation appears deliberately vague on appellant’s part, when viewed in connection with Officer Conroy’s testimony regarding the location of the storage facility, the district court did not abuse its discretion in finding the statements relevant to appellant’s knowledge. The tape-recorded conversation properly supports a reasonable inference or presumption regarding appellant’s knowledge of the contents of his storage unit. Further, even if its admission was in error, any reasonable inferences that could be made by the jury did not result in significant prejudice.

DECISION

Because we find that appellant showed no reasonable expectation of privacy in the area surrounding a storage facility, and because the district court did not abuse its discretion in admitting evidence of appellant’s tape-recorded telephone conversation, we affirm.

Affirmed.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.