Housing and Redevelopment Authority of St. Cloud v. Royston, 990 N.W.2d 730 (Minn. App. May 1, 2023), rev. denied (August 22, 2023) construed the service-by-posting-an-eviction-actions-summons part of Minn. Stat. § 504B.331. The court held that the order of mailing the summons, making two attempts at personal service, posting the summons, and filing the affidavit of not found & mailing did not matter so long as all were done at least 7 days prior to the initial hearing.
I think this holding was wrong. The statute requires posting to be done after filing the affidavit of not found & mailing (and by inference after the mailing). I explain why in this essay (in PDF and in Word with links to cited materials).
Part II of the essay shows why the Royston court’s holding conflicts with the language of the statute.
Part III reviews the legislative history of Minn. Stat. § 504B.331. It derives from a 1909 session law. The 1909 law, in turn, was based on an existing law that had been construed by the Minnesota Supreme Court. That construction would require filing the affidavit of not found & mailing before posting. This part references two appendices. Appendix 1 contains copies of every version of the eviction-action service statute from Territorial days through now. Appendix 2 is a detailed legislative history of 1909 Minn. Laws ch. 496.
Part IV reviews a 2023 session law amending Minn. Stat. § 504B.331 effective 1/1/2024. The session law may have abrogated Royston.
Part V discusses the practical effects of Royston – real but relatively small – and suggests litigation strategies for eviction-action defendants.
Full disclosure: I have a personal stake in the issue decided in Royston. I believe I developed the defense Mr. Royston raised. This is explained in Motion of Paul Birnberg for Leave to File a Brief as Amicus Curiae in Royston. My motion was denied when the supreme court denied review.
Birnberg Minnesota Legislative Newsletter 