author: LANCASTER, Justice. GILBERT, Justice

text:
    RYAN CONTRACTING, INC., Respondent, v. JAG INVESTMENTS, INC., et al., Petitioners, Appellants, Metro Home Insulation, Inc., et al., Defendants, GMH Asphalt Corporation, Respondent.
    No. C5-99-1688.
    Supreme Court of Minnesota.
    Oct. 11, 2001.

      Kay Nord Hunt, James M. Lockhart, Lommen, Nelson, Cole & Stageberg, PA, Minneapolis, for appellants.
    Jeffrey C. Paulson, David D. Hammar-gren, Hammargren, Meyer & Paulson, PA, Minneapolis, for respondent.
    Patrick J. Neaton, Neaton & Puklich, PLLP, Wayzata, for respondent.
   OPINION

LANCASTER, Justice.

Appellant JAG Investments, Inc. appeals from the court of appeals’ decision affirming the district court’s denial of JAG’s motion for summary judgment. JAG asks us to reverse the court of appeals’ holding that respondent Ryan Contracting, Inc. effectively served JAG in a mechanics’ hen action even though Ryan failed to serve JAG within the one-year time limit imposed by Minn.Stat. § 514.12, subd. 3 (2000). JAG also contends that the court of appeals erred when it failed to dismiss respondent GMH Asphalt Corporation’s cross-claim against JAG because Ryan never effectively served JAG and because GMH’s cross-claim does not stand on independent jurisdictional grounds. In short, JAG asks this court to- reverse the court of appeals’ decision and dismiss respondents’ mechanics’ lien actions for lack of personal jurisdiction. We agree that the district court lacked personal jurisdiction over JAG and reverse.

In April 1997, Jagodzinski Development Corporation (JDC) hired Ryan to perform clearing, grading, sewer and water main installation, and street construction for the Fairway Hills residential development project in Chaska, Minnesota. JDC is a Minnesota corporation whose president and sole shareholder is Joe Jagodzinski. JAG is a Minnesota investment company that owned much of the Fairway Hills property that JDC planned to develop. Jim Jagodzinski is JAG’s sole shareholder and Joe Jagodzinski’s father. Ryan subcontracted with GMH to perform street and paving work.

On April 8, 1998, Ryan “served and filed a mechanics’ lien against the Fairway Hills property to recover amounts allegedly due from JDC. The lien listed Ryan’s last day of work as December 16, 1997. Ryan, however, claims that it performed additional work after the lien was filed and that its actual last day of work was September 13,1998.

On December 4, 1998, Ryan filed a lawsuit to foreclose on its lien. Ryan personally served JDC on the same, day by serving the summons and complaint on Joe Jagodzinski. Ryan did not personally serve JAG at this point, Nonetheless, JAG served Ryan with an answer on December 23,1998, and raised the affirmative defense of lack of personal jurisdiction, asserting that Ryan failed to serve JAG within the one-year time limit imposed by section 514.12, subd. 3, of the mechanics’ lien statutes. According to JAG, the one-year limit expired on December 16, 1998, because Ryan stated in its lien statement that it last performed work on December 16, 1997. On December 28, 1998, GMH, also named as a defendant in Ryan’s complaint, filed its answer and asserted a cross-claim against JAG in an attempt to foreclose its own mechanics’ hen. GMH mailed a copy of its answer to JAG’s attorney on December 28, 1998.

On July 15, 1999, JAG, JDC, and other defendants filed a motion for summary judgment. In the memorandum of law supporting that motion, JAG argued for the dismissal of Ryan’s complaint and release of JAG’s property from Ryan’s and GMH’s mechanics’ liens based on lack of personal jurisdiction. JAG also argued for summary judgment based on the merits of the claim. In August 1999, Ryan personally served JAG.

We note that both Ryan and JAG seem to agree that JAG, not JDC, was the owner of the Fairway Hills property. Ryan alleged as much in its complaint and JAG admitted so in its answer. However, in Ryan’s mechanics’ hen statement, it alleged that JAG, JDC, and Joe Jagodzinski were the “present owners of the [premises,” and in two other documents submitted to the court attached to Joe Jagodzinski’s affidavit, JDC was designated as the owner of the premises. For purposes of this appeal, however, we will assume that JAG is the owner of the property; as owner, JAG is an essential defendant to Ryan’s lien action because mechanics’ hens attach to property interests. Dunham Assocs. v. Group Invs., Inc., 301 Minn. 108, 118, 223 N.W.2d 376, 383 (1974). Whether JDC may have a property interest in Fairway Hills is a question properly left to the district court in Ryan’s and GMH’s claims against JDC; it was not raised to this court and JDC is not a party to this appeal.

On September 21, 1999, the district court held that it had personal jurisdiction over JAG even though it concluded that it is “undisputed that [Ryan] never served [JAG] * * ⅝ individually with the Summons and Complaint during” the one-year time limit of section 514.12, subd. 3. The court noted that December 16, 1997, was Ryan’s last day of work and therefore Ryan had until December 16, 1998, to serve JAG. Ryan served JDC by the deadline, but did not individually serve JAG until August 1999.

In deciding that Ryan effectively served JAG and that JAG was “properly ‘made a party’ ” to Ryan’s hen action, the district court relied on an alternative theory of service:

[B]oth [Ryan] and GMH Asphalt argue that the hen foreclosures are still valid. [JAG] has appeared and participated in every aspect of this case. In addition, Defendant JDC and [JAG] are undertaking the development of the subject property as a “joint venture” and * * * the attorney representing all of the JAG, [et al.] Defendants was served and did file answers and responsive papers on behalf of his clients. Furthermore, the action itself, which names [JAG as a party], was commenced within the required time period. For these reasons, [Ryan] and GMH argue that property owners have been made party to the action.
The Court agrees and finds that, based on all the reasons just discussed, [JAG is a] legitimate part[y] to this action. * * * Thus, [JAG is] subject to judgment on the foreclosure of the mechanic’s liens and the motion for summary judgment on this point is denied.

In a published opinion, the court of appeals agreed with the district court’s analysis. It held that “[s]ervice of process on JAG was effective because JAG’s joint-venture partner was properly served, JAG received actual notice, and JAG was not prejudiced.” Ryan Contracting, Inc. v. JAG Inva, Inc., 609 N.W.2d 642, 647 (Minn.App.2000). The court of appeals held that, because the district court had personal jurisdiction over JAG in Ryan’s lien action, the district court also had personal jurisdiction over JAG in GMH’s lien action. Id. at 646 n. 3. JAG appealed.

Generally, an order denying a motion for summary judgment is not ap-pealable. McGowan v. Our Savior’s Lutheran Church, 527 N.W.2d 830, 832 (Minn.1995). However, there are exceptions to that general rule; for instance, a denial of a motion for summary judgment based on lack of personal jurisdiction is immediately appealable. Id. On appeal from a denial of summary judgment, we determine whether any genuine issues of material fact remain and whether the district court erred in applying the law. See Zank v. Larson, 552 N.W.2d 719, 721 (Minn.1996). Specifically, this case requires us to consider whether service of process was effectuated and therefore whether the district court had personal jurisdiction over JAG. Whether personal jurisdiction exists is a question of law, which we review de novo. Patterson v. Wu Family Corp., 608 N.W.2d 863, 866 (Minn.2000). In this case, whether personal jurisdiction exists will depend in part on a construction of the mechanics’ lien statutes. Statutory construction is also a question of law which we review de novo. State v. Ambaye, 616 N.W.2d 256, 258 (Minn.2000).

The mechanics’ lien statutes set forth the requirements for commencing a lien action, including a time limit within which the action must be commenced. The lien statutes govern the procedural requirements for initiating and maintaining a mechanics’ lien action insofar as they are inconsistent with or in conflict with the Minnesota Rules of Civil Procedure. Minn. R. Civ. P. 81.01(a) & App. A. Under the lien statutes, an action may be commenced

by any lienholder who has filed a lien statement for record and served a copy thereof on the owner pursuant to section 514.08, and all other such lienholders shall be made defendants therein. The summons shall state that the complaint has been filed with the court administrator and shall be of no effect unless such complaint be in fact so filed.

Minn.Stat. § 514.11. The mechanics’ lien statutes also provide a one-year time limit on the commencement of the action:

No lien shall be enforced in any case unless the holder thereof shall assert the same, either by filing a complaint or answer with the court administrator, within one year after the date of the last item of the claim as set forth in the recorded lien statement; and, no person shall be bound by any judgment in such action unless made a party thereto within the year * ⅜ *.

Minn.Stat. § 514.12, subd. 3 (emphasis added). This one-year time limit is at the center of this dispute.

I. Joint-Venture Service

Ryan and GMH urge us to adopt the lower courts’ conclusions that Ryan properly served JAG through its “joint venture partner,” JDC. Ryan argues that its service on JDC within the one-year time limit should be effective as to JAG because JDC and JAG are engaged in a joint venture. We have not decided whether service on one joint-venture member satisfies service as to another joint-venture member, and no rule expressly permits such service.

Both lower courts assumed, without analysis, that a joint venture exists between JAG and JDC. JAG protests the lower courts’ decisions because they are based on joint-venture theory of service that Ryan never argued to the district court. GMH did make reference to a joint venture between JDC and JAG, but did not offer it as a theory of service. Rather, GMH argued that, because a joint venture existed between JDC and JAG, JDC had a property interest in the Fairway Hills property and therefore GMH’s hen should attach against JDC. JAG does not concede that a joint venture exists. Although the question of whether a joint venture exists is an unresolved factual issue, for the following reasons it is not a factual question material to the resolution of this case. See, e.g., O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn.1996) (“A fact is material if its resolution will affect the outcome of a case.”).

Neither the mechanics’ Hen statutes nor the Minnesota Rules of Civil Procedure expressly permit joint-venture-based service. In the absence of a statute expressly permitting such service in the context of mechanics’ liens, this court will not presume that one exists. See State v. Moseng, 254 Minn. 263, 269, 95 N.W.2d 6, 11-12 (1959) (“Where failure of expression rather than ambiguity of expression concerning the elements of the statutory standard is the vice of the enactment, courts are not free to substitute amendment for construction and thereby supply the omissions of the legislature.”). Ryan’s arguments also do not persuade us to construe the Rules of Civil Procedure to allow service on a party through service on its joint-venture partner. Moreover, “[w]e have not treated service of process as a mere technicality, as it serves the important function of actual, formal notice to the defendant of the action.” Patterson, 608 N.W.2d at 867. Recognizing the important function that service of process fulfills, and recognizing the due process implications involved, we have always required parties to adhere strictly to the service requirements. See, e.g., Tullis v. Federated Mut. Ins. Co., 570 N.W.2d 309, 311 (Minn.1997) (“Service of process in a manner not authorized by the rule is ineffective service.”); Berryhill v. Sepp, 106 Minn. 458, 459, 119 N.W. 404, 404 (1909) (“[Sjervice must accord strictly with statutory requirements.”). Accordingly, we decline to adopt a joint-venture service rule and therefore need not consider whether Ryan satisfied such a rule.

The court of appeals also supported its decision by stating that JAG was not prejudiced by Ryan’s improper service because JAG had actual notice of the suit. We have recognized, however, that “actual notice of the lawsuit will not subject defendants to personal jurisdiction without substantial compliance with” the rules of service. Tullis, 570 N.W.2d at 311. Ryan made no effort to comply with service requirements because it did not attempt to serve JAG within the one-year time limit imposed by Minn.Stat. § 514.12, subd. 3. Accordingly, we conclude that JAG’s actual notice of the lien action, without more, is insufficient to subject JAG to personal jurisdiction.

II. Ryan’s Alternative Arguments

Ryan argues that even if we do not accept the court of appeals’ joint-venture theory of service, we can nonetheless uphold that court’s decision. Ryan contends that, contrary to the court of appeals’ and district court’s conclusions, it did serve JAG within the one-year time limit imposed by the lien statutes and therefore made JAG a party to its lien action. Alternatively, Ryan asserts that JAG waived its jurisdictional defense through its participation in this case. Both lower courts stated, without analysis, that Ryan did not serve JAG individually within the one-year time limit imposed by section 514.12, subd. 3. Because the lower courts decided that Ryan effectively served JAG, they did not address the waiver argument.

a. One-Year Time Limit

Ryan first argues that it satisfied the one-year time limit and properly commenced its action because it filed its summons and complaint within one year of December 16, 1997, its last day of work as listed on its lien statement. In making this argument, Ryan asserts that the fundamental requirement of section 514.12 is not the serving of the complaint, but the filing of the complaint. Ryan acknowledges that provisions that create a mechanics’ lien are strictly construed. It argues, however, that the one-year service limit of section 514.12, subd. 3, is an enforcement provision to be liberally construed. We disagree.

The requirements for the attachment and creation of a mechanics’ lien are to be strictly construed. Dolder v. Griffin, 323 N.W.2d 773, 780 (Minn.1982). After a lien is created, however, we liberally construe the lien statutes as remedial acts. Id. The one-year limitation of the lien statutes is no ordinary statute of limitations; it puts a limit to the life and duration of the lien. Bauman v. Metzger, 145 Minn. 133, 138, 176 N.W. 497, 499 (1920). The statutes require that not only filing a complaint, but also making the defendant-landowner a party to the suit— accomplished by serving the defendant-landowner with the summons — must be done within one year. Minn.Stat. § 514.12, subd. 3; see Smith v. Hurd, 50 Minn. 503, 507, 52 N.W. 922, 922 (1892) (holding, in the context of a mechanics’ lien action, that as to each defendant a lien action “is commenced and is pending only from the time of service of the summons on him” (emphasis added)). If these requirements are not met, the lien and any cause of action flowing therefrom cease to exist at the end of the year. Bauman, 145 Minn. at 138, 176 N.W. at 499. Contrary to Ryan’s argument, then, we conclude that the one-year time limit on service, like the one-year time limit on filing the complaint, is not merely an enforcement provision of the statute but rather is a requirement for the creation of a lien action and must be strictly construed.

Here, although Ryan filed its complaint within one year from its last day of work, it did not serve JAG within that one year. Therefore, Ryan’s lien action against JAG ceased to exist one year from Ryan’s last day of work. See, e.g., Thompson Yards, Inc. v. Standard Home Bldg. Co., 161 Minn. 143, 146-47, 201 N.W. 300, 302 (1924) (“[O]ne is not a party to an action until he is in a position to be bound by the judgment therein. That does not come about until the court acquires jurisdiction of his person by the service on him of the summons or by his voluntary appearance.”); Smith, 50 Minn. at 507, 52 N.W. at 922 (“[W]hen [a lien] action is commenced as to any defendant there must be an existing cause of action against him, and the right to a remedy upon it.”); Steinmetz v. St. Paul Trust Co., 50 Minn. 445, 447, 52 N.W. 915, 915 (1892) (“Of course, no judgment to enforce a lien against the land could be rendered unless the owner is made a party by being brought into the action.”); see also Guillaume & Assocs., Inc. v. Don-John Co., 336 N.W.2d 262, 264 (Minn.1983) (“We have strictly interpreted the time limitations [of the lien statutes] insofar as they determine when a lien is established and when it terminates.”).

Ryan’s second argument is that it satisfied the service requirements of section 514.12, subd. 3, because it served JAG within one year from its last day of work. Ryan claims that even though its lien statement and complaint list December 16, 1997, as its last day of work, its actual last day of work at the Fairway Hills property was September 13, 1998. By serving JAG on August 2, 1999, Ryan argues that it achieved service within the one-year limit.

Applying the strict construction standard that we have determined is appropriate for the one-year time limit of section 514.12, we conclude that Ryan’s argument is defeated by the plain language of that section. The statute requires that the complaint be filed, and that service be made, “within one year after the date of the last item of the claim as set forth in the recorded lien statement.” Minn.Stat. § 514.12, subd. 3 (emphasis added). The statute expressly creates a one-year time limit that begins to run on the last day of work a lienholder records in the lien statement. This conclusion is supported not only by the plain language of section 514.12, subd. 3, but also by strong policy considerations: “It has been the policy of our statutes creating mechanic’s liens to fix a definite time when such liens should terminate, to the end that those interested in the property, or dealing with it, might know with certainty when it was free from such claims * * Bauman, 145 Minn. at 140, 176 N.W. at 500. For these reasons, we hold that the one-year time limit set forth in Minn.Stat. § 514.12, subd. 3, begins to run on the last day of work as listed in the recorded lien statement. Accordingly, Ryan had until December 16, 1998, to serve JAG and thus its August 1999 service was untimely.

b. Waiver

Ryan argues that even if we determine that it did not satisfy the one-year service requirement, we can still uphold the court of appeals’ decision because JAG effectively waived its jurisdictional defense through its participation in the case. In JAG’s answers to Ryan and GMH, JAG affirmatively raised a defense based on lack of personal jurisdiction. However, Ryan accurately points out that a party can waive a jurisdictional defense. See Miss. Valley Dev. Corp. v. Colonial Enters., Inc., 300 Minn. 66, 73, 217 N.W.2d 760, 764 (1974). Ryan directs our attention to the following actions by JAG as support for its waiver argument: (1) JAG waited seven months after answering before it moved for summary judgment based on lack of personal jurisdiction; (2) JAG served discovery on parties in the interim; (3) JAG attended depositions and noticed depositions on the merits of the claims; (4) JAG attended court-ordered mediation; and (5) JAG filed a motion in June 1999 to compel discovery responses and request reimbursement of costs and fees.

We recently revisited the issue of when waiver may result even after a party raises a personal jurisdiction defense. Patterson, 608 N.W.2d at 864. In Patterson, we explained that “simple participation in [a lawsuit] does not, standing alone, amount to waiver of a jurisdictional defense. Rather, it is the failure to provide the court an opportunity to rule on the defense before affirmatively invoking the court’s jurisdiction on the merits of the claim” that leads to waiver. Id. at 868. Here, JAG moved for summary judgment on the merits, but also asked for dismissal based on lack of personal jurisdiction. Where a party simultaneously invokes the court’s jurisdiction on the merits and asks the court to rule on a jurisdictional defense, waiver will not result unless other circumstances clearly demonstrate the party’s acquiescence to the court’s jurisdiction. Id. at 869 (stating that failure to move for dismissal based on a personal jurisdiction defense, before or contemporaneously with a motion for summary judgment on the merits, results in waiver of that defense). Such circumstances are not present in this case. Thus, JAG did not waive its jurisdictional defense.

III. GMH’s Cross Claim

Having determined that Ryan did not serve JAG and that the district court had no personal jurisdiction over JAG in Ryan’s lien action,, we are left with the question of whether GMH’s cross-claim against JAG survives. Because the court of appeals concluded that the district court did have personal jurisdiction over JAG in Ryan’s lien action, it did not reach this issue.

Under the mechanics’ lien statutes, once a lien action is filed other possible lienholder-claimants with claims arising from the same improvements cannot initiate their own action but must intervene in the original action by answer. Minn.Stat. § 514.12, subd. 2. GMH originally was named as a defendant in Ryan’s complaint and asserted its own lien action against JAG in its answer. GMH’s lien listed its last day of work as June 6, 1998. GMH mailed its answer, which included the cross-claim against JAG, to JAG’s attorney on December 28,1998.

JAG argues that the district court never had personal jurisdiction over JAG and that the court’s lack of jurisdiction extends to the cross-claim because GMH did not personally serve JAG within one year of its last day of work. JAG further argues that, if the district court never had personal jurisdiction over JAG in Ryan’s lien action, then GMH’s cross-claim must stand on independent jurisdictional grounds in order to survive JAG’s motion to dismiss. GMH does not disagree, but contends that independent jurisdictional grounds do support its cross-claim because it satisfied the service requirements set forth in Minn. R. Civ. P. 5.02 by mailing its answer to JAG’s attorney in December 1998. JAG responds that it was not a party at the time GMH mailed its answer and that rule 5.02 is not applicable to non-parties. JAG argues that GMH was thus required to satisfy the personal service requirements as set forth in Minn. R. Civ. P. 4.03 and, because GMH failed to do so, its lien action against JAG must be dismissed.

Generally, personal service is governed by Minn. R. Civ. P. 4.03. As noted above, however, the mechanics’ lien statutes govern the requirements for initiating and maintaining a lien action. See Minn. Stat. § 514.11 (“The action may be commenced by any lienholder who has filed a lien statement for record and served a copy thereof on the owner pursuant to section 514.08, and all other such lienhold-ers shall be made defendants therein.”). Nonetheless, the rules of civil procedure apply to lien actions unless the mechanics’ lien statutes are inconsistent or in conflict with the rules of civil procedure. Minn. R. Civ. P. 81.01(a) & App. A. Here, section 514.11 does not specify how a summons should be served in order to commence a lien action and therefore the Minnesota Rules of Civil Procedure, specifically rule 4.03, apply and govern service in a hen action.

Until served pursuant to rule 4.03, one is not made a “party” to an action. Thompson Yards, 161 Minn. at 146-47, 201 N.W. at 302 (holding that one is not a party to an action until one is in a position to be bound by the judgment, and one cannot be bound by a judgment until the court acquires jurisdiction over that individual), see generally Minn. R. Civ. P. 3-5. If a person is not made a party to a lien action within the one-year time limit of section 514.12, subd. 3, that person is not bound by any judgment resulting from the action; in effect, the hen is terminated as to that person. Minn.Stat. § 514.12, subd. 3; see Bauman, 145 Minn. at 140, 176 N.W. at 500.

GMH does not argue that it personally served JAG pursuant to rule 4.03, but rather contends that it met the service requirements set forth in Minn. R. Civ. P. 5.02 and thereby made JAG a party to the lien action. Rule 5.02 permits service by mailing an answer to a party’s attorney. GMH argues that when JAG filed its answer to Ryan’s complaint, notwithstanding the fact that JAG had not been served by Ryan, JAG made an “appearance” under Minn. R. Civ. P. 5.01 and therefore GMH was permitted to serve JAG pursuant to rule 5.02. We agree that, by answering, JAG took the type of action that constitutes making an “appearance” pursuant to rule 5.01. However, rule 5.01 states that “[a] party appears when that party serves or files any paper in the proceeding,” and rule 5.02 permits service by mail upon a “party ” or the party’s attorney. Minn. R. Civ. P. 5.01, 5.02 (emphasis added). Both rules clearly govern service on one who is already a party. Thus, JAG had to be a party to the action before GMH could avail itself of the more lenient service requirements of rule 5.02. Because Ryan never served JAG, JAG was not a party to the lien action. Under these circumstances, GMH could have made JAG a party only by personally serving its answer on JAG pursuant to Minn. R. Civ. P. 4.03 on or before June 6, 1999. Because GMH failed to do so, GMH’s cross-claim was not supported by independent jurisdictional grounds and thus the district court had no personal jurisdiction over JAG in GMH’s mechanics’ lien foreclosure action.

We recognize that because Ryan initiated this lien action, GMH was bound by Minn.Stat. § 514.12, subd. 2, to intervene by answer in the original proceeding and could not commence its own lien action. However, the survival of a cross-claim in a lien action is not dependent on whether the initial plaintiff, here Ryan, effectively serves all defendants. To assure the survival of its cross-claim despite Ryan’s faulty service on JAG, GMH could have personally served its answer on JAG pursuant to Minn. R. Civ. P. 4.03. This requirement is consistent with the practice already encouraged for lienholders. E.g., Stephen A. Melcher, Foreclosing Mechanic’s Liens And Suing Out Payment Bond Claims, in Minnesota Institute of Legal Education, Mechanic’s Liens & Payment Bonds § VII, p. 5 (1999) (“Any hen claimant which asserts its claim by answer ought to consider serving process and filing its own notice of Us pendens to avoid problems in the event that plaintiffs service or filing was defective.”); John G. Patterson, Enforcing a Mechanics’ Lien, in Minnesota State Bar Ass’n Continuing Legal Educ., A Comprehensive Guide to Mechanics’ Liens in Minnesota § VII, p. 9 (1999) (“If the plaintiff has failed to comply with any of the requirements of commencing foreclosure of its hen, such noncompliance could be fatal not only to the plaintiff but to the defendant hen claimants as well. The answering hen claimant must verify that the plaintiff has joined all interested parties in the action * * *. If an interested or responsible party was not joined, the answering hen claimant should join that party so complete rehef can be awarded to the answering hen claimant.”).

Further, as noted above, “[w]e have not treated service of process as a mere technicality,” Patterson, 608 N.W.2d at 867, and we have always required parties to adhere strictly to the service requirements, see, e.g., Tullis, 570 N.W.2d at 311 (“Service of process in a manner not authorized by the rule is ineffective service.”); Berryhill, 106 Minn. at 459, 119 N.W. at 404 (“[Sjervice must accord strictly with statutory requirements.”). Service rules should be clear; parties should not be left to guess what, under different factual scenarios, will be an acceptable method of service. Requiring strict comphance achieves this result.

In summary, we hold that the district court did not have personal jurisdiction over JAG in either Ryan’s or GMH’s hen action. We therefore reverse the court of appeals’ decision and grant JAG’s motion for summary judgment.

Reversed.

GILBERT, Justice

(concurring in part and dissenting in part).

The questions before this court are (1) whether the district court has personal jurisdiction over JAG in Ryan’s hen action and (2) whether the district court has personal jurisdiction over JAG in GMH’s cross-claim. With respect to the first issue, I concur with the majority’s decision declining to adopt a joint-venture service rule and that actual notice of the mechanics’ hen action without service is insufficient to subject a party to personal jurisdiction. However, there are additional theories of personal jurisdiction that were not considered by the courts below. The relevance and strength of these theories are a function of the relationship between JAG, JDC, and the Fairway Hills property. Because there remain numerous genuine issues of material fact regarding this relationship, a reversal under these facts calls for a remand. Accordingly, I respectfully dissent from the majority’s decision.

I also respectfully dissent from the majority’s decision that the district court lacks personal jurisdiction over JAG in GMH’s cross-claim. The majority’s conclusion that GMH needed to personally serve JAG improperly imports the rules of civil procedure into our mechanics’ hen jurisprudence. Although party status is established through service in ordinary civil actions, the Mechanics’ Lien Statute provides elaborate rules for establishing party status in mechanics’ hen actions. Because those speciahzed rules take precedence over conflicting rules of civil procedure, under these facts GMH has properly-asserted its cross-claim.

I. Personal Jurisdiction Over JAG in Ryan’s Lien Action

The question before the court is whether the district court has personal jurisdiction over JAG in Ryan’s lien action. Ryan’s principal theories of jurisdiction are (1) Minn. R. Civ. P. 4.03 and Minn.Stat. §§ 514.10-514.12 (2000) (Mechanics’ Lien Statute) permit a joint-venture service rule and (2) actual notice of a lien action without service is sufficient to subject a party to personal jurisdiction under the Mechanics’ Lien Statute. Because adopting these theories would require this court either to create new rules of service of process or depart from the plain meaning of statutory language, I concur with the majority’s decision to reject these theories of personal jurisdiction. I disagree, however, with the disposition of this case and would remand the case to the district court for further factual findings.

A remand is the proper disposition of this case because there is a material factual dispute regarding the relationship between JAG, JDC, and the Fairway Hills property. The majority insists that this relationship “is not a factual question material to the resolution of this case.” If the lower courts had considered and exhausted the universe of personal jurisdiction theories raised by the parties, the legal and factual relationship between JAG, JDC, and the Fairway Hills property indeed would be immaterial. However, this did not happen.

The lower courts considered only the joint-venture theory of personal jurisdiction. Yet Ryan’s complaint alleges that JAG and JDC are “related business entities and share common ownership and control.” Ryan thus raises two theories that could support a finding that the district court has personal jurisdiction over JAG. First, there could be a principal-agent relationship between the party served, JDC, and JAG such that service upon JDC was sufficient to provide personal jurisdiction over JAG. Derrick v. Drolson Co., 244 Minn. 144, 148-49, 69 N.W.2d 124, 127-28 (1955). Second, JAG and JDC may be engaged in a family partnership so that service upon JDC constituted service upon JAG. MinmStat. § 540.152 (2000); State v. Ritholz, 257 Minn. 201, 202-03, 100 N.W.2d 722, 724 (1960); Ford Motor Co. v. Sylte, 188 Minn. 578, 579-80, 248 N.W. 55, 56 (1933).

The factual record before us indicates that JAG is wholly owned by Jim Jagod-zinski. JDC is wholly owned by Joe Jag-odzinski, Jim Jagodzinski’s son. There is some indication that JAG and JDC operate out of the same business address at Fairway Hills in Chaska. It is unclear who owns the Fairway Hills property. Although JAG insists in its memorandum in support of its motion for summary judgment that it owns the Fairway Hills Development, neither JAG nor JDC submitted any title evidence to the district court. In addition, attached to the sworn affidavit of Joe Jagodzinski submitted in support of JDC’s motion for summary judgment are two documents identifying JDC as the owner of the Fairway Hills property as well as an affidavit of Tom Veenker, president of All Metro Development Consultants, in which Mr. Veenker states that the Fairway Hills Development in Chaska “was developed by Jagodzinski Development Corporation and known [sic] by JAG Investments, Inc.” Significantly, the contract documents signed by the parties and submitted to the district court by JDC contain an affirmative representation by JDC that it is the owner of the Fairway Hills property. Furthermore, Joe Jagod-zinski testified in his deposition that there was a joint-venture and profit-sharing agreement between JAG and JDC and, in its answer, JAG claimed as an offset alleged damages claimed by JDC.

These facts, particularly the profit sharing agreement between JAG and JDC relating to the Fairway Hills property, suggest that JAG and JDC were either engaged in business as a partnership or JDC was an agent of JAG. At a minimum, they indicate that Ryan’s improvements to Fairway Hills through JDC were done with the knowledge and consent of JAG. It is therefore possible that service on JDC was sufficient to preserve Ryan’s action against JAG.

Of course, the fact that there are hints in the factual record before us that an agency or partnership theory might support a finding of personal jurisdiction over JAG does not mean that Ryan ultimately will prevail on this issue. The relevance and strength of these theories are a function of the business relationship between JAG, JDC, and the Fairway Hills property. This is why our prior case law emphasizes the importance of determining the connections between the parties and the property in a mechanics’ lien foreclosure action. Smith v. Hurd, 50 Minn. 503, 506-07, 52 N.W. 922, 922 (1892). Satisfying the standards for service of process depends on the structure of business relationships. Id., 52 N.W. at 922. The existence of an agency relationship is a question of fact. Vacura v. Haar’s Equipment, Inc., 364 N.W.2d 387, 391 (1985). The existence of a partnership is a question of fact. Cyrus v. Cyrus, 242 Minn. 180, 183, 64 N.W.2d 538, 541 (1954). We should remand this case for further factual findings regarding the true relationship between JAG, JDC, and the Fairway Hills property.

The majority’s summary disposition of this case selectively ignores our notice pleading standard. In dismissing this case, the majority is granting JAG summary judgment relief on one jurisdictional ground — the joint-venture theory — even though the parties never advanced the joint-venture theory of jurisdiction to the district court. Yet the majority ignores the agency and partnership theories of jurisdiction that were placed before the district court by Ryan’s complaint. Since the days of code pleading are gone, Ryan properly raised the agency and partnership theories of personal jurisdiction by asserting in its complaint that JAG and JDC are “related business entities and share common ownership and control.” We should remand this case so the factual basis for evaluating these theories can be established.

The purpose of the Mechanics’ Lien Statute is “to protect the rights of workmen and materialmen who furnish labor and material in the improvement of real estate.” See, e.g., Armco Steel Corp. v. Chicago & N.W. Ry. Co., 276 Minn. 133, 137, 149 N.W.2d 23, 26 (1967). Joe Jagod-zinski, JDC’s owner, represented to Ryan and subcontractors, in writing, that it owned the Fairway Hills property. Now, after all the work has been done and the risks have been incurred, Jim Jagodzinski, JAG’s owner and Joe Jagodzinski’s father, argues that JAG is the true owner. A remand under these facts helps fulfill the longstanding promise of the Mechanics’ Lien Statute that “[h]e whose property is enhanced in value by the labor and toil of others should be made to respond in some way by payment and full satisfaction for what he has secured.” Emery v. Hertig, 60 Minn. 54, 57, 61 N.W. 830, 831 (1895).

II. Personal Jurisdiction Over JAG in GMH’s Cross-claim

I also respectfully dissent from the majority's dismissal of GMH’s answer and cross-claim. The majority’s holding that GMH could make JAG a party only by personally serving its answer on JAG pursuant to Minn. R. Civ. P. 4.03 is based on a misunderstanding of the relationship between the Mechanics’ Lien Statute and the Minnesota Rules of Civil Procedure. The majority explains that because the Mechanics’ Lien Statute does not set forth the procedures for service of a summons to commence a lien action, the rules of civil procedure apply. Under rule 3.01, one is not a party to an action until served. Thus, the majority concludes that a lien claimant named as a defendant has the right to maintain an action to foreclose his or her own particular mechanics’ lien only by formally serving a cross-claim pursuant to rule 4.03.

It is true that the Mechanics’ Lien Statute does not set forth rules for service of process. However, this does not mean that the statute fails to provide rules for making one a party to a mechanics’ lien action. Under the rules of civil procedure, service and party status are inextricably linked. One must be served to be a party. Under the rules for establishing party status detailed in the Mechanics’ Lien Statute, however, one can be a party without being served. In arguing that party status is always a function of service of process, the majority improperly imposes a rule applicable in ordinary civil actions on statutory mechanics’ lien actions. This directly contradicts the Mechanics’ Lien Statute as well as prior decisions of this court.

Our holding in Sandberg v. Palm, 53 Minn. 252, 54 N.W. 1109 (1893), involves a situation directly analogous to that of the instant case. In Sandberg, the property owner’s agent executed a contract to sell the land to Burkey, who engaged several laborers to construct four buildings on the land. Sandberg, one of the laborers, filed an action in Ramsey County to foreclose his mechanics’ lien because he had not been paid for his services. In that action, Hammer, another lien claimant who was named by Sandberg as a defendant, filed an answer to foreclose on his (Hammer’s) particular mechanics’ lien. The district court determined that although Sandberg’s action to foreclose was filed within 1 year after the date of the last item of work on Sandberg’s lien, Sandberg did not properly serve the summons on the landowner until after the 1-year statutory period had passed. Nevertheless, the district court entered judgment in favor of Hammer even though it dismissed Sandberg’s action.

On appeal, we explicitly rejected the property owner’s argument that no other lien claimant could appear in an action to assert his or her particular lien when an original plaintiff who did not commence the foreclosure action properly was procedurally barred from asserting his lien. Instead, we held that a plaintiff commences an action to foreclose on a mechanics’ lien by filing a complaint and a notice for lis pendens and serving a summons. Id. at 255, 54 N.W. at 1109. Once a plaintiff commences an action to foreclose a lien, any other lien claimant who intends to assert their lien may do so by filing an answer. Id., 54 N.W. at 1109. Once the answer is filed, judgment is not dependent on the disposition of the original plaintiffs claim. Id., 54 N.W. at 1109. Under Sand-berg, GMH properly commenced an action to foreclose its lien against JAG by filing its answer even though Ryan failed to serve a summons on JAG within the statutory period.

Similarly, in Olson & Serley Sash & Door Co. v. Juckem, 163 Minn. 375, 204 N.W. 51 (1925), we emphasized that any individual lien claimant may commence an action to foreclose a mechanics’ lien but, once an action is commenced, all the other claimants who have been joined as party defendants must file an answer to assert their own particular mechanic’s lien. Id. at 377, 204 N.W. at 51. After such a lien claimant files an answer, his action to enforce his lien is independent of the original plaintiffs action. Id., 204 N.W. at 52. We held that “the filing of the answer is the essential thing. Filing it is a substitute for the service of the summons [once] an action to foreclose is commenced. It keeps the lien alive whether the plaintiffs action was begun in time or not, and whether the plaintiff prevails or is defeated.” Id., 204 N.W. at 52; Bauman v. Metzger, 145 Minn. 133, 140, 176 N.W. 497, 500 (1920) (holding that filing an answer commences an action to foreclose a lien). Under Olson, GMH commenced its action against both JAG and JDC when it filed its answer, whether Ryan’s action was begun in time or not. Service by GMH was irrelevant and unnecessary.

The results in Sandberg and Olson are consistent with the statutory language and goals of the Mechanics’ Lien Statute. Of course, they are inconsistent with the Minnesota Rules of Civil Procedure precisely because mechanics’ lien actions are excepted from the requirements contained in the rules to the extent that they are inconsistent or in conflict with the rules. Minn. R. Civ. P. 81.01(a) & App. A. The Mechanics’ Lien Statute specifies the manner in which one is made a party to a mechanics’ lien action. A lienholder asserts his or her hen “by filing a complaint or answer with the court administrator, within one year after the date of the last item of the claim as set forth in the recorded lien statement.” Minn.Stat. § 514.12, subd. 3. After a plaintiff files the complaint, all other lienholders must be made defendants in the action and the named defendants are only required to file their answer with the district court administrator. The statute mandates that “[n]o copies of such complaint or answer need be served on any party, upon demand, or otherwise.” Minn.Stat. § 514.11. In fact, these defendants are prohibited from commencing any action on their own if a notice of lis pendens was filed with the county recorder. Minn.Stat. § 514.12, subd. 2. Under the Mechanics’ Lien Statute, service of process is not necessary to make one a party to a lien action. Because this rule is directly at odds with rule 4.03, the procedures specified under the Mechanics’ Lien Statute take precedence.

Here, the summons and complaint naming GMH as one of the defendants was filed with the district court on December 4, 1998, and notice of lis pendens was filed with the Carver County Recorder, thus complying with the requirements of the statutory provisions governing the commencement of mechanics’ lien actions. The notice in the summons only directed GMH to file its answer, which it did within 20 days of service of the complaint. The notice did not say any further steps were required by GMH. In fact, GMH was prohibited by statute at that time to com-menee any action on its own if, as was done here, a notice of lis pendens was filed with the county recorder. Accordingly, when GMH filed its answer with the court, it was in compliance with all of the statutory requirements. GMH properly joined the parties and issues.

In sum, in dismissing GMH’s cross-claim action against JAG, the majority improperly imports the rules of civil procedure into our mechanics’ lien jurisprudence. In doing so, it ignores and overrules our century-old standards regarding the legal effect of an answer filed by a defendant in an already-commenced action to foreclose a mechanics’ lien. The practical result of the majority opinion is that foreclosure of a lien will now require a stipulation regarding proper service by the plaintiff or service of all the answers of the multiple defendants on the property owner and all other codefendants. This will create uncertainty, enhance the expense of litigation, and undermine the remedial purpose of the lien statutes. For these reasons, I respectfully dissent from the majority’s dismissal of GMH’s answer and cross-claim.

PAUL H. ANDERSON, Justice (concurring in part, dissenting in part).

I join in the concurrence and dissent of Justice GILBERT.

      .JAG was not the only party that owned portions of the Fairway Hills property. Other landowner-defendants were named in Ryan’s complaint. However, JAG appears to be the only remaining property owner that Ryan and GMH seek to include in their mechanics’ lien actions, and JAG is the only landowner-defendant that appealed from the court of appeals' decision.

      . Ryan’s complaint also asserted a claim against JDC for breach of contract, and a claim against JDC and JAG for unjust enrichment. This opinion addresses only Ryan's and GMH's lien claims against JAG.

      . In its brief to this court, Ryan states that it served a copy of the summons and complaint on JAG’s attorney in December 1998. Ryan does not specify on which date in December it served this alleged copy. Furthermore, Ryan points to nothing in the record, and we have found nothing, to support this statement.

      . GMH filed its mechanics' lien on October 5, 1998. The lien listed GMH’s last day of work as June 6, 1998.

      . Once a lien action is filed, all other possible lienholder-claimants with claims arising from the same improvements cannot initiate their own action but must intervene in the original action by answer. Minn.Stat. § 514.12, subd. 2 (2000). Such answer must be filed with the court administrator, but it need not be served. Minn.Stat. § 514.11 (2000).

      . The court in Smith goes on to explain that an action is commenced and is pending only from the time of service or from the time of the defendant’s appearance without service. 50 Minn. at 507, 52 N.W. at 922. In this case, however, the district court did not acquire personal jurisdiction over JAG when it served its answer — an action that can constitute an “appearance” under Minn. R. Civ. P. 5.01 — because, in its answer, JAG raised the affirmative defense of lack of personal jurisdiction and thus did not waive that defense. See Minn. R. Civ. P. 12.08(a); Patterson, 608 N.W.2d at 866.

      . JAG argues that it did not file this motion, noting that the memorandum in support of the motion specifically states that JDC, not JAG, brought the motion.

      . JAG claims that the court of appeals implicitly held that GMH’s cross-claim was unsupported by independent jurisdictional grounds. The court of appeals held that because the district court had personal jurisdiction over JAG in Ryan’s lien action, that jurisdiction extended to GMH’s cross-claim against JAG. Ryan Contracting, 609 N.W.2d at 646 n. 3. However, the court of appeals also ruled that GMH's cross-claim against a different landowner-defendant, Darlene M. Chiles, did not survive. Id. at 646-47. In the Chiles situation, the court of appeals determined that the district court had no personal jurisdiction over Chiles in Ryan’s lien action and that the court's lack of personal jurisdiction extended to GMH’s cross-claim against Chiles. Id. at 647. The court of appeals did not explicitly address GMH's argument that its cross-claim is supported by independent jurisdictional grounds.

      .Minnesota Statutes § 514.12, subd. 2, provides:
      After such filing, no other action shall be commenced for the enforcement of any lien arising from the improvement described, but all such lienholders shall intervene in the original action by answer, as provided in section 514.11. Any such lienholder not named as a defendant may answer the complaint and be admitted as a party. If more than one action shall be commenced in good faith, all shall be consolidated and tried as one, under such order of the court as may best protect the rights of all parties concerned.

      . Minnesota Rules of Civil Procedure 4.03(c) specifically addresses personal service on a corporation. It provides in pertinent part:
      Service of summons within the state shall be as follows:
      ⅜ ⅜ ⅜ ⅜
      Upon a domestic or foreign corporation, by delivering a copy to an officer or managing agent, or to any other agent authorized expressly or impliedly or designated by statute to receive service of summons, and if the agent is one authorized or designated under statute to receive service any statutory provision for the manner of such service shall be complied with.

      . Section 514.11 specifies who may commence a lien action, but it does not specify how each step of the action must proceed. For instance, while section 514.11 does state the substantive requirements that must be contained in a lien action summons, it does not dictate how that summons should be served. Therefore, the rules of civil procedure govern service of the summons in a lien action.
      By requiring service to comply with the rules of civil procedure, we only fill in a gap left by the lien statutes. Where the lien statutes differ from the rules, the lien statutes continue to govern. For instance, the lien statutes govern some of the substantive service requirements and require that only a summons, not a complaint, be served. See Minn.Stat. § 514.11.

      .Minnesota Rules of Civil Procedure 5.02 provides in part:
      Whenever under these rules service is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the party is ordered by the court. Written admission of service by the party or the party’s attorney shall be sufficient proof of service. Service upon the attorney or upon a party shall be made by delivering a copy to the attorney or party; transmitting a copy by facsimile machine to the attorney or party’s office; or by mailing a copy to the attorney or party at the attorney’s or party’s last known address * * *.

      . Minnesota Rules of Civil Procedure 5.01 states in pertinent part: “A party appears when that party serves or files any paper in the proceeding.”

      . If Ryan had served JAG, thereby making it a party to Ryan's lien action, GMH would not have been required to serve JAG with the answer. The lien statutes specifically state that although a defendant-lienholder must file its answer with the court administrator, it need not serve a copy of the answer on any party. Minn.Stat. § 514.11.

      . Attached to the sworn affidavit of Joe Jagod-zinski submitted in support of JDC's motion for summary judgment is a document entitled “Instructions to Bidders” which identifies JDC as the owner of the Fairway Hills property. Similarly, in the actual construction agreement between JDC and Ryan Contracting, dated April 16, 1997, which was attached as Exhibit "B” to Joe Jagodzinski’s affidavit, JDC is designated as the owner of the Fairway Hills subdivision.

      . Ryan, in its memorandum to the district court opposing summary judgment, characterizes the relationship between JAG and JDC as a joint-venture but does not raise a joint-venture theory of personal jurisdiction. JAG and JDC dispute that they were involved in a joint-venture.


source: Caselaw Access Project

author: EDWARD J. PARKER, Judge.

license: Public Domain

text:
    Elon PICHE, et al., Appellants, Respondents, v. INDEPENDENT SCHOOL DISTRICT NO. 621, Respondent, Appellant.
    Nos. C7-01-267, C3-01-394.
    Court of Appeals of Minnesota.
    Aug. 28, 2001.

      Thomas W. Tuft, Valerie Downing Arnold, Thomas Tuft Law Offices, and Patrick J. Kelly, Kelly & Fawcett, P.A., St. Paul, for appellants-respondents Piche.
    Eric J. Magnuson, Timothy J. Nolan, Kathy S. Kimmel, Rider, Bennett, Egan & Arundel, L.L.P., Minneapolis, for respondent-appellant Independent School District No. 621.
    Joseph M. Finley, Keith S. Moheban, Leonard, Street and Deinard, P.A., St. Paul, for amicus curiae Minnesota Land Title Association and Minnesota Real Estate Services Association.
    Susan L. Naughton, League of Minnesota Cities, St. Paul, for amicus curiae League of Minnesota Cities.
    Joseph E. Flynn, Daniel J.S. Becker, Knutson, Flynn & Deans, P.A., Mendota Heights, for amicus curiae Minnesota School Boards Association.

      Considered and decided by STONEBURNER, Presiding Judge, KALITOWSKI and PARKER, Judges.
   OPINION

EDWARD J. PARKER, Judge.

Appellants-respondents Elon and Jane Piche (the Piches) petitioned the district court for a writ of mandamus ordering respondent-appellant Independent School District No. 621 to discharge two parcels of land, the first of which was acquired by eminent domain and the second by warranty deed. The district court found that the school district held a fee simple defea-sible interest in both parcels limited to the public purpose of acquiring a site for a school; that the school district had abandoned its intent to use the land for a school site, thereby triggering the Piches’ reversion in the second parcel, but that the Marketable Title Act barred their rever-sionary interest in the first parcel. The district court issued a writ of mandamus as to the second parcel. Both parties appealed. Because we hold that the school district acquired a fee simple absolute interest in both parcels, and in the alternative, that the Marketable Title Act bars the Piches’ claim to the first parcel, we affirm in part and reverse in part.

FACTS

In 1955, the Piches purchased 76 acres of land in Ramsey County. The school district subsequently obtained an interest in 19.3 acres of the Piches’ land in two parcels.

In 1957, the school district exercised its power of eminent domain over the first parcel. The Piches opposed the condemnation, but the district court granted the school district’s petition. The district court’s order stated: “[T]he estate acquired by the [school district] in said lands shall be fee title absolute for a school site for school building, playground and other anticipated education purposes.” A panel of three commissioners determined the fair market value of the property, and the Piches appealed the award. The district court affirmed the determination of fair market value, and its final decree stated:

[The school district] now owns a fee title in said lands for the purpose of acquiring a school site for a school building, playground and other anticipated educational purposes, and to have and keep exclusive control of the same.

This final decree was properly recorded.

In 1964, under the threat of condemnation, the Piches sold the second parcel to the school district. The Piches provided the school district with a warranty deed, which states that the Piches convey the second parcel

[t]o have and to hold the same, Together with all the hereditaments and appurtenances thereunto belonging, or in anywise appertaining, to the [school district], its successors and assigns, Forever. And [the Piches], for themselves, their heirs, executors, and administrators, do covenant with the [school district], its successors and assigns, that they are well seized in fee of the lands and premises aforesaid, and have good right to sell and convey the same in manner and form aforesaid, and that the same are free from all incumbran-ces.

The school district paid the Piches $1,000 per lot in consideration for the second parcel.

The entire 19.3 acres has since remained undeveloped. The Piches have made numerous attempts to recover the land, but the school district declined. Recently, the school district began studying its facility needs. A facilities task force issued a master plan recommending that no new school buddings be built and that the 19.3 acres be sold to generate revenue.

In April 2000, the Piches petitioned the district court for a writ of mandamus ordering the school district to discharge the 19.3 acres pursuant to a reversion because the school district had abandoned its intent to use the land for a school site. The district court issued a writ of mandamus and order to show cause. The school district answered, and a hearing was set. Three days prior to the hearing, the school district passed a resolution naming the potential uses for the 19.3 acres as (1) a site for a performing arts/administrative center; (2) a site for replacement of several leased instruction sites and a district service center; or (3) a trade for a larger tract of land.

The district court denied the Piches’ petition with respect to the first parcel and granted their petition with respect to the second parcel. The district court concluded that the language of the final decree recorded in Ramsey County was ambiguous and that the nature of the school district’s interest in the first parcel was determined by the 1957 statute authorizing the taking. The court held that the school district had a defeasible interest in the first parcel limited to the public purpose for which it was condemned. The district court concluded that the school district had no intention of using this land for a school site and the Piches had a reversionary interest, but that the Marketable Title Act (MTA) barred their claim, which was made more than 40 years after the taking of their interest in the first parcel. The district court concluded that by acquiring a warranty deed on the second parcel by threat of condemnation, the school district had constructively exercised its powers of eminent domain, and, like the first parcel, the school district held a defeasible fee interest in the second parcel. The court found that the MTA did not bar the Pich-es’ claim to the second parcel, however, because the warranty deed had been executed in 1964, and the 40-year period in which to make a claim had not yet expired. The court found that mandamus, although an extraordinary remedy, was necessary on the second parcel.

The district court denied both parties’ motions for amended findings. The Piches appeal the district court’s finding that the MTA barred their claim to the first parcel. The school district challenges the district court’s underlying finding that the school district had a defeasible interest in the first parcel and appeals the court’s finding that absolute title was not conveyed on the second parcel. The two cases have been consolidated.

ISSUES

I. Did the district court err in denying the Piches’ petition for a writ of mandamus compelling the school district to discharge the first parcel, acquired through eminent domain proceedings in 1957?

II. Did the district court err in granting the Piches’ petition for a writ of mandamus compelling the school district to discharge the second parcel, acquired by a warranty deed in 1964?

ANALYSIS

I.

The school district argues that the district court erred in finding that the school district had only a fee simple defea-sible interest in the first parcel. The Pich-es argue the district court erred in finding that the Marketable Title Act (MTA) barred their claim because (1) the MTA does not apply; and (2) the district court interpreted the MTA in a manner that violates their Fifth Amendment constitutional rights. Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998).

A. The school district acquired a fee simple absolute interest in the first parcel.

The Piches argue that the school district waived its right to appeal this issue by failing to request amended findings by posttrial motion. This court will generally not consider matters not argued and considered in the court below. Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988). In its posttrial motion and memoranda, the school district did not argue specifically that it had acquired a fee simple absolute interest in the first parcel because it had prevailed on other grounds. Nevertheless, the issue had been previously briefed and argued before the district court, who considered the issue fully in making findings. The record is complete for a thorough review on appeal. Cf. In re Estate of Magnus, 444 N.W.2d 295, 297-98 (Minn.App.1989) (reviewing appealable legal issue raised in record of probate proceeding even though appellant decided to forego any postorder motions). Therefore, when the school district ultimately prevailed on the issue, we hold it need not have filed a notice of review or have raised the issue specifically in a posttrial motion to preserve the issue for appeal. Cf. Andren v. White-Rodgers Co., 462 N.W.2d 860, 861 (Minn.App.1990) (finding that respondent who prevailed in district court need not file a “contingent” appeal to preserve right to seek a remand if district court’s decision is reversed).

The school district argues that it obtained a fee simple absolute in the condemnation proceedings as to the first parcel. If the eminent domain proceedings vested the school district with a fee simple absolute interest in the first parcel, the Piches would not have a reversionary interest even if the school district had failed to use the land for the public purpose for which it was originally condemned. See Minn.Stat. § 117.18 (1953) (stating that if the interest described in the condemnation proceedings is a fee simple absolute, “the fee simple absolute shall be an estate without any right of reversion under any circumstances.”).

In 1957, the district court granted the school district’s petition for condemnation by an order stating:

[T]he estate acquired by the petitioner in said lands shall be fee title absolute for a school site for school building, playground, and other anticipated education purposes.

(Emphasis added.) This court order directed the panel of commissioners to determine the fair market value of the interest acquired by the school district in the first parcel. The award of the commissioners was filed on May 17, 1957. Following the Piches’ appeal of this determination of fair market value, the court issued a final decree:

[The school district] now owns a fee title in said lands for the purpose of acquiring a school site for a school building, playground and other anticipated educational purposes, and to have and keep exclusive control of the same.

(Emphasis added.) The school district recorded only this final decree.

A government entity may acquire a fee estate by the power of eminent domain. Volden v. Selke, 251 Minn. 349, 355, 87 N.W.2d 696, 701 (1958); Fairchild v. City of St. Paul, 46 Minn. 540, 543, 49 N.W. 325, 325-26 (1891) (stating legislature has the power to expressly authorize a municipal corporation to acquire fee simple interest in land by condemnation). A “fee” is defined as: “An estate of inheritance without condition, belonging to the owner, and alienable * * Black’s Law Dictionary 741 (4th ed.1957). The “[tjerms ‘fee,’ ‘fee simple,’ and ‘fee simple absolute’ are equivalent.” Id. (citing Boon v. Boon, 348 Ill. 120, 180 N.E. 792, 794 (1932)). The state’s fee interest “need not be granted in express terms, but it must clearly appear, either expressly or by fair implication.” Volden, 251 Minn. at 356, 87 N.W.2d at 702 (quotation omitted); see MinmStat. § 117.18 (1953) (stating that any “right, interest, or estate in the property” taken through condemnation proceedings, “if greater than an easement, shall be specifically described in the proceedings * ⅝ ⅜ ”).

The Piches argue that the language in the final decree stating “for the purpose of acquiring a school site” implies that the school district’s interest is limited to a fee simple defeasible. A mere statement of the purpose for which the property is to be used is not sufficient to create a defeasible fee. 2 George W. Thompson, Thompson on Real Property § 20.07, at 676 (David A. Thomas ed.1994); see, e.g., Housing & Redev. Auth. of City of South St. Paul v. United Stockyards Corp., 309 Minn. 331, 332, 244 N.W.2d 275, 276 (1976) (finding that from the form of instruments, from evidence of intent in contemporaneous records, and from resulting avoidance of payment of property taxes, that limiting words “for municipal purposes” and “for a public park” were precatory). Nothing in the final decree expressly references an estate lesser than a fee simple absolute. Therefore, the final decree defining the school district’s interest as a “fee title” is ambiguous because the term “fee” can refer to a defeasible fee or a fee simple absolute.

The Piches contend that the unique language in the statute authorizing school districts to acquire land by eminent domain for only one specific public purpose — to acquire a school site — limits a school district’s interest in the land to a defeasible fee only for that public purpose. The nature of an interest in land acquired by a governmental entity for public use through the exercise of eminent domain is determined by the statute authorizing the taking. Buck v. City of Winona, 271 Minn. 145, 149, 135 N.W.2d 190, 193 (1965). The legislature is the sole judge of the extent of the estate which serves the public necessity. Id. (citing Fairchild, 46 Minn. at 543, 49 N.W. at 326). Where the statute does not expressly or by implication grant the right to take an estate in fee simple, the interest taken is limited to that necessary to accomplish the purpose and no greater estate may be taken. Id. (citing Fairchild, 46 Minn. at 543, 49 N.W. at 326). The 1957 statute provided:

When authorized by the voters at a regular meeting or election or at a special meeting or election called for that purpose, [school boards] may acquire necessary sites for school houses, or enlargements or additions to existing school house sites, by lease, purchase, or condemnation under the right of eminent domain; erect, lease, or purchase necessary school houses, or additions thereto; erect or purchase garages for district-owned school buses; and sell or ex change school houses or sites and execute deeds of conveyance thereof.

Minn.Stat. § 125.06, subd. 2 (1957) (effective until July 1, 1958) (emphasis added).

The district court failed to consider that the statute in effect in 1957 gave school districts the authority to sell or exchange school houses or sites. If the language in the statute were interpreted to mean, as the Piches argue, that the school district could only acquire a fee simple defeasible interest in land condemned for the purpose of acquiring a school site, then the authority given to school districts to sell or exchange property would be superfluous; a defeasible interest would have been effectively unmarketable because the sale or exchange would trigger the rever-sionary interest. See Glaser v. Minnesota Federal Sav. & Loan Ass’n, 389 N.W.2d 763, 764 (Minn.App.1986) (stating that a title that may force the purchaser into litigation to remove defects is not marketable); see also Consolidated Sch. Dist. v. Walter, 243 Minn. 159, 163, 66 N.W.2d 881, 883-84 (1954) (explaining that with a determinable fee, the property reverts back to the grantor automatically when the property ceases to be used for the stated purpose). Whenever it is possible, no word, phrase, or sentence of a statute should be deemed superfluous. Amaral v. St. Cloud Hosp., 598 N.W.2d 379, 384 (Minn.1999). We therefore refuse to interpret the school district’s statutory authority to obtain land by the power of eminent domain to curtail its equally viable authority to sell or exchange land. We hold that the statute authorized the school district by implication to acquire fee simple absolute title, and the language in the final decree — “for the purpose of acquiring a school site” — merely demonstrates the public purpose for which the first parcel was condemned.

The district court and the Piches relied on Buck, 271 Minn. 145, 135 N.W.2d 190 (1965), Fairchild, 46 Minn. 540, 49 N.W. 325 (1891), and Wolfson v. City of St. Paul, 535 N.W.2d 384 (Minn.App.1995), review denied (Minn. Sept. 28,1995). In Wolfson, the City of St. Paul condemned an 80-foot strip in 1886 to create Lexington Avenue. 535 N.W.2d at 386. In 1902, the city condemned an additional 40 feet on each side for a grassy parkway. Id. In 1956, respondents asked the city to construct a parking lot to replace the 40-foot grass parkway. Id. In 1993, the city replaced the parking lot with a right-turn lane, and respondents instituted an inverse condemnation action. Id. The court found that respondents had a reversionary interest in the land condemned for the parkway because “[w]hen a governmental unit condemns land for a limited public purpose, the land reverts back to the fee owner if the property is no longer used for the public purpose.” Id. at 387 (citing Buck, 271 Minn. at 151, 135 N.W.2d at 194).

Buck, Fairchild, and Wolfson are distinguishable because the states interest acquired by eminent domain in these cases was limited to a right-of-way easement. See, Fairchild, 46 Minn. at 544, 49 N.W. at 326 (stating “where the legislature has authorized the taking of land for the purposes of streets, without defining the estate that may be taken, or expressly authorizing the taking of the fee, it is held that only an easement can be taken”); see, e.g., Buck, 271 Minn. at 150, 135 N.W.2d at 193 (finding construction of authorizing statute compels the conclusion that the city’s interest is limited to an easement for park and parkway purposes).

Caselaw from other jurisdictions is persuasive. A New Jersey court determined that the legislature intended that a school district acquire a fee simple absolute interest when condemning property pursuant to the statute for “school purposes.” Valentine v. Lamont, 20 N.J.Super. 454, 90 A.2d 143, 148 (1952). In Valentine, the court distinguished contrary authority that related to the condemnation by a public utility of an easement or right of way. Id. The Kansas Supreme Court similarly determined that a school district that had condemned property for use as a site for school buildings had acquired fee simple title, and the original landowner held no reversion if the school district sold the land or devoted it to other uses. Board of Educ. of Unified Sch. Dist. 512 v. Vic Regnier Builders, Inc., 231 Kan. 731, 648 P.2d 1143, 1152 (1982). The Kansas court emphasized the particularly unjust result if the property were to revert back to the original fee owner because at the time of the condemnation the landowner was compensated for the full value of the land, as in this case. Id. If the land were to revert back, the landowner would obtain a “substantial windfall.” Id. at 1153. The Kansas court relied on the policy of emphasizing the public importance of school lands “and their importance in providing a sound financial basis for the public schools.” Id.

We hold that, absent clear language to the contrary in conveyance documents, the grantor retains a reversionary interest in land only when the statute does not authorize the taking of a fee-simple estate and the taking of an easement would satisfy the public purpose.

B. The Marketable Title Act bars a claim for reversion.

The MTA provides:

As against a claim of title based upon a source of title, which source has then been of record at least 40 years, no action affecting the possession or title of any real estate shall be commenced * * * to enforce any right, claim, interest incumbrance or lien founded upon any instrument, event or transaction which was executed or occurred more than 40 years prior to the commencement of such action, unless within 40 years after such execution or occurrence there has been recorded ⅜ * ⅜ a notice sworn to by the claimant ⅜ ⅜ *.

Minn.Stat. § 541.023, subd. 1 (2000). The purpose of the MTA is to prevent “ancient records from fettering the marketability of real estate.” Hersh Props., LLC v. McDonald’s Corp., 588 N.W.2d 728, 734 (1999) (quoting Minn.Stat. § 541.023, subd. 5 (1998)). A “determination of title should be possible from an examination of documents in the chain of title recorded in the 40-year period preceding the search.” Id. If a party fails to record notice of their interest within the 40-year statutory period, the unrecorded interests are subject to a conclusive presumption of abandonment. Id. (citing Minn.Stat. § 541.023, subd. 5 (1998)).

The Piches argue that the school district has no standing to invoke the MTA as a defense because the school district does not have a claim based on a “source of title” where the school district’s interest in the first parcel is nonproprietary. “Source of title” is “any deed, judgment, decree, sheriffs certificate, or other instrument which transfers or confirms, or purports to transfer or confirm, a fee simple title to real estate.” Minn.Stat. § 541.023, subd. 7 (2000). Fee simple “title” includes defea-sible fees, which are fee simple estates subject to a special limitation, condition subsequent, executory limitation, or a combination of restrictions. Wichelman v. Messner, 250 Minn. 88, 100, 83 N.W.2d 800, 813 (Minn.1957) (citations omitted). Even if the school district had acquired a defeasible fee interest in the first parcel, the school district would have a source of title and could invoke the MTA as a defense.

The Piches rely on Wichelman, 250 Minn. at 105, 83 N.W.2d at 815-16, for the proposition that the MTA does not apply to the reversioner or remainder-man. Wichelman qualifies that “it would be unreasonable and inconsistent with the statute’s purpose to include within the meaning of the word ‘title’ the term for years and the life estate.” Id. This case is distinguishable because it involves neither a term for years nor a life estate.

The Piches argue that the final decree in this case is analogous to the Torrens registration in Hersh, In Hersh, the supreme court held that the source of title held by an owner of Torrens property is the certificate of title issued to that owner upon his or her acquisition of fee simple title. 588 N.W.2d at 737. The holding in Hersh, however, wholly depends on the “binding and conclusive nature of certificates of title under the Torrens Act.” Id. at 736. The Torrens certificate of title was less than 40 years old, whereas in this case, the final decree was recorded more than 40 years earlier. Id. at 732.

[I]t is clear that the legislature intended to require those owning interests in old conditions and restrictions which burden such ownership to record notice of the continued existence of such rights or permit extinguishment of them.

Wichelman, 250 Minn. at 105, 83 N.W.2d at 816. Therefore, the final decree in this case would not put title searchers on notice of all interests relating to the first parcel because the Piches did not record notice of their purported interest in the first parcel during the last 40 years. The interest in the first parcel is not analogous to a Torrens registration.

Finally, the Piches argue that because the MTA exempts persons in possession of property from being deprived of their interest in the property, the MTA should not apply. See Minn.Stat. § 541.023, subd. 6 (2000). The Piches have misconstrued the exemption. The MTA provides that the Act cannot be used against someone in possession of the property, but in this ease the school district is invoking the MTA as a defense against the Piches, who are not in possession of the property.

C. Application of the MTA is constitutional.

The Piches argue that application of the MTA against them violates their constitutional protections against governmental takings of private property for pub-lie use without just compensation. See U.S. Const, art. Y; Minn. Const, art. I, § 13. “In evaluating challenges to the constitutionality of statutes, this court recognizes that the interpretation of statutes is a question of law.” In re Blilie, 494 N.W.2d 877, 881 (Minn.1993) (citation omitted). “Minnesota statutes are presumed constitutional, and our power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary.” In re Haggerty, 448 N.W.2d 363, 364 (Minn.1989) (citation omitted). The Piches argue that by barring their claim through invocation of the MTA, they have been deprived of a claim for inverse condemnation. The Piches would not have a claim for inverse condemnation, however, because they have already received just compensation in the original condemnation proceedings. Any further compensation to them would constitute a windfall.

II.

The school district argues that in an unambiguous warranty deed the Piches conveyed a fee simple absolute interest in the second parcel, and the fact that the deed was conveyed under a threat of condemnation is irrelevant.

“The effect of the deed is to be determined by the law of conveyancing and not by the law of condemnation.” Kendrick v. City of St. Paul, 213 Minn. 283, 287, 6 N.W.2d 449, 451 (1942).

[Conditions in a conveyance of real property, a breach of which by the terms of the deed work a forfeiture of the estate, are construed strictly against the grantor, and if doubt arises from the language of the instrument whether a forfeiture or reversion of the estate was intended, it will be resolved in favor of the grantee ⅜ * *.

Bruer v. Bruer, 109 Minn. 260, 264, 123 N.W. 813, 814 (1909). In the absence of express language in the deed, a condition subsequent is not implied. Dietz v. Dietz, 244 Minn. 330, 333, 70 N.W.2d 281, 285 (1955); see MinmStat. § 507.38 (2000) (“When a deed purports to be an absolute conveyance but is made or intended to be made defeasible * * * the original conveyance shall not thereby be defeated or affected as against any person other than the maker of the defeasance * ⅜ * unless the instrument of defeasance is recorded in the county where the lands lie.”). The warranty deed executed by the Piches in 1964 unambiguously conveys their fee simple title without any language from which to imply that the grantors retained a reversion.

In executing a warranty deed, the Pich-es guaranteed that title would be free of all encumbrances. See Minn.Stat. § 507.21 (2000) (“Whoever conveys real estate by deed or mortgage containing a covenant that it is free from all encumbrances, when an encumbrance * ⅜ ⅜ appears of record to exist thereon, but does not exist in fact, shall be liable in an action of contract to the grantee * * * for all damages sustained in removing the same.”). The Piches could have included in the deed explicit language retaining a reversionary interest. We hold that the Piches conveyed a fee simple absolute interest in the second parcel by an unambiguous warranty deed.

The district court relied on Kendrick for the proposition that when a warranty deed is acquired in conjunction with a condemnation proceeding, the state’s interest in the land is limited to the public purpose for which it was conveyed:

Our conclusion that the city, by taking the warranty deed, acquired a fee-simple title does not mean that this title was an absolute or proprietary one which could not thereafter be lost or relinquished by abandonment of all public use. The title which the city so acquired was a qualified or terminable fee, a sovereign or prerogative title, which it, as an agency of the state, holds in trust for the city and which it can neither sell nor devote to a private use.

Kendrick, 213 Minn. at 288, 6 N.W.2d at 451-52 (finding no abandonment of public use). Similarly, the district court relied on First American, in which the court seemed to treat the state’s interest in the land acquired for a highway by threat of condemnation as if the state had acquired the land through eminent domain proceedings pursuant to statutory authority. First Am. Nat’l Bank v. State, 322 N.W.2d 344, 346 (Minn.1982). As in Wolfson and Buck, Kendrick and First American are distinguishable because they involved a right-of-way easement and a specific statutory application (Minn.Stat. § 161.44 (1980)) respectively.

The school district argued alternatively’ that (1) the statute of limitations on defea-sible estates, Minn.Stat. § 500.20, subd. 2a (2000), bars recovery; (2) the district court made improper factual findings; and (3) a writ of mandamus was an improper remedy. Because we hold that the Piches conveyed a fee simple absolute title in the second parcel to the school district, we decline to reach these issues.

DECISION

The district court erred in finding that the school district had a fee simple de-feasible interest in both parcels, and the district court erred in issuing a writ of mandamus on the second parcel. Alternatively, the district court did not err in refusing to issue a writ of mandamus on the first parcel because the MTA applies to bar the Piches claim.

Affirmed in part, and reversed in part.

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

      . Title passed on the date of filing the award of the commissioners. See McRostie v. City of Owatonna, 152 Minn. 63, 66, 188 N.W. 52, 53 (1922).

      . The district court cited a different statute, Minn.Stat. § 122.041, subd. 1 (1957), but that section, although nearly identical in wording to Minn.Stat. § 125.06, subd. 2, did not become effective until July 1, 1958.

      . We note that Minn.Stat. § 161.44, subds. 1, 2 (1980), specifically provided that when an easement acquired by the state for highway purposes is no longer needed, it must first be offered for reconveyance to the previous owner.

      . The MTA does not bar the Piches’ claim to the second parcel, however, because the Pich-es have brought that claim within 40 years after execution of the warranty deed in 1964.

      . The Piches argue that because the MTA was not discussed in Buck v. City of Winona, 271 Minn. 145, 135 N.W.2d 190 (1965), or Wolfson v. City of St. Paul, 535 N.W.2d 384 (Minn.App.1995), review denied (Minn. Sept. 28, 1995), it should not apply here. Simply because these cases did not address this issue, however, does not mean that the MTA does not apply in similar cases. On the contrary, it suggests that Buck and Wolfson are not prece-dential regarding the applicability of a statute not addressed by the court. See Nadeau v. Melin, 260 Minn. 369, 375, 110 N.W.2d 29, 34 (1961) (stating "[a] decision must be construed in the light of the issue before the court”).

      . Along with other amicus curiae briefs, the brief of the Minnesota Land Title Association and the Minnesota Real Estate Services Asso.-ciation was particularly helpful in discerning the law of conveyances.