#27548-a-JMK
2016 S.D. 42

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                                  ****

MARGARET UPELL,                             Plaintiff and Appellant,

      v.

DEWEY COUNTY COMMISSION,                    Defendant and Appellee,

      and

MOREAU-GRAND ELECTRIC
COOPERATIVE, INC.,                          Intervenor and Appellee.

                               ****
                  APPEAL FROM THE CIRCUIT COURT OF
                    THE FOURTH JUDICIAL CIRCUIT
                    DEWEY COUNTY, SOUTH DAKOTA

                               ****
               THE HONORABLE MICHELLE K. PALMER PERCY
                               Judge

                                  ****

AL ARENDT
Pierre, South Dakota                        Attorney for plaintiff
                                            and appellant.

STEVEN ABERLE
Dewey County State’s Attorney
Timber Lake, South Dakota                   Attorney for defendant and
                                            appellee.

JOHN W. BURKE
Thomas, Braun, Bernard & Burke, LLP
Rapid City, South Dakota                    Attorneys for intervenor and
                                            appellee.

                                  ****
                                            CONSIDERED ON BRIEFS
                                            ON MARCH 21, 2016

                                            OPINION FILED 05/18/16
#27548

KERN, Justice

[¶1.]        The Dewey County Commission (the Commission) granted an

application to erect a power distribution line in a section line right-of-way bordering

Margaret Upell’s property. She appealed to the circuit court which dismissed her

appeal for lack of jurisdiction. She now appeals to this Court. We affirm.

                          Facts and Procedural History

[¶2.]        Moreau-Grand Electric Cooperative, Inc. (Coop) filed an application

with the Commission in December 2014 to erect and maintain a distribution line in

a section line right-of-way. The application was filed pursuant to SDCL 31-26-1,

which provides in pertinent part:

             The board of county commissioners, upon written
             application designating the particular highway the use of
             which is desired, may grant to any person engaged in the
             manufacture or sale of electric light and power . . . the
             right to erect and maintain poles and wires or to bury
             underground cable for the purpose of conducting
             electricity for lighting, heating, and power purposes,
             together with stay wires and braces . . . in and along any
             public highway in its county for a period not to exceed
             twenty years, subject to the conditions set forth in this
             chapter and such further reasonable regulations as the
             Legislature may hereafter prescribe.

[¶3.]        Upell owned property adjacent to the section line and objected to the

erection of the power line. The Commission held a hearing on Coop’s application in

March 2015. All parties appeared, offered testimony, and presented arguments and

authorities. At the close of the hearing, the Commission voted to approve Coop’s

application. The Commission published its minutes on March 18, 2015. Upell filed

a notice of appeal of the Commission’s decision with the circuit court on March 25,


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2015. Upell served her notice of appeal by mail on counsel for Coop and on the

Dewey County State’s Attorney. But she did not serve a member of the board of

county commissioners as required by SDCL 7-8-29, which provides in pertinent

part:

             Such appeal shall be taken within twenty days after the
             publication of the decision of the board by serving a
             written notice on one of the members of the board, when
             the appeal is taken by any person aggrieved by the
             decision of the board[.]

(Emphasis added.)

[¶4.]        On June 29, 2015, Upell, the Commission, and Coop filed a stipulation

agreeing to Coop’s intervention in Upell’s appeal. The circuit court filed its order

granting the intervention on that same date. On July 6, 2015, Coop filed a motion

to dismiss Upell’s appeal for failure to serve the notice of appeal on a member of the

board of county commissioners as required by SDCL 7-8-29. The motion was heard

on July 20 and the circuit court dismissed the appeal. The order of dismissal was

filed on July 30, 2015, and Upell appeals to this Court.

                                        Issue

[¶5.]        Whether the circuit court erred in dismissing Upell’s appeal.

[¶6.]        Upell argues that the circuit court erred in granting the motion to

dismiss her appeal. Both parties cite the standard of review set forth in AEG

Processing Center. No. 58, Inc. v. S.D. Department of Revenue and Regulation, 2013

S.D. 75, ¶ 7 n.2, 838 N.W.2d 843, 847 n.2.

             The “standard of review of a trial court’s grant or denial of
             a motion to dismiss is the same as our review of a motion
             for summary judgment—is the pleader entitled to

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              judgment as a matter of law?” “We review issues
              regarding a court’s jurisdiction as questions of law under
              the de novo standard of review.” Furthermore, “statutory
              interpretation is a question of law, reviewed de novo.”

Id. (citations omitted).

[¶7.]         While this statement incorporates the correct standard, we clarify its

reference to summary judgment. This language goes back to Jensen Ranch, Inc. v.

Marsden, 440 N.W.2d 762 (S.D. 1989). In that case, a Rule 12(b)(5) 1 motion to

dismiss an action for failure to state a claim was converted to a motion for summary

judgment. Id. at 764. Summary judgment was granted, and we reviewed the

judgment according to summary judgment standards. Later, in reviewing the

denial of a motion to dismiss for failure to state a claim in Estate of Billings v.

Deadwood Congregation of Jehovah Witnesses, 506 N.W.2d 138, 140 (S.D. 1993), we

cited Jensen Ranch for the proposition that “[o]ur standard of review of a trial

court’s grant or denial of a motion to dismiss is the same as our review of a motion

for summary judgment—is the pleader entitled to judgment as a matter of law?”

Since Estate of Billings, this language has been routinely quoted as part of our

standard of review for dismissals, even in cases such as AEG that did not involve

motions for failure to state a claim or summary judgment. See Risse v. Meeks, 1998

S.D. 112, ¶¶ 6-10, 585 N.W.2d 875, 876 (motion to dismiss and dismissal for lack of

subject matter jurisdiction); O’Neill Farms, Inc. v. Reinert, 2010 S.D. 25, ¶¶ 5-7, 780

N.W.2d 55, 57-58 (motion to dismiss and dismissal for lack of personal




1.      SDCL 15-6-12(b)(5).

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jurisdiction). 2 This confuses the standard of review when a dismissal is on

jurisdictional grounds.

[¶8.]         Further confusing the standard of review is the fact that motions to

dismiss for lack of jurisdiction such as in AEG and the present case may take

different forms and may be raised at various points in the proceedings. 3 As

explained in one treatise:

              A motion to dismiss an action for lack of subject matter
              jurisdiction under Rule 12(b)(1) is but one of many ways
              the defense may be presented. For example, in a
              significant number of cases, federal courts have permitted
              a defending party to raise a lack of subject matter
              jurisdiction on a Rule 12(c) motion for judgment on the
              pleadings or on a Rule 12(f) motion to strike. And, in
              keeping with the policy set forth in Rule 12(h)(3) of
              preserving the defense throughout the action, it has long
              been well-established that the court’s lack of subject
              matter jurisdiction may be asserted at any time by any
              interested party, either in the answer or in the form of a
              [Rule 12(h)(3)] suggestion to the court prior to final
              judgment. After final judgment a lack of subject matter
              jurisdiction may be interposed as a motion for relief from
              the judgment under Rule 60(b)(4).



2.      See also Samuelson v. Jorgenson, 1999 S.D. 13, ¶¶ 4-6, 588 N.W.2d 598, 599
        (denial of motion to dismiss for failure to timely serve summons and
        complaint); Ramsey v. Mathisrud, 1999 S.D. 121, ¶¶ 2-5, 599 N.W.2d 400, 401
        (motion to dismiss and dismissal for expiration of the statute of limitations);
        White Eagle v. City of Fort Pierre, 2000 S.D. 34, ¶¶ 3-4, 606 N.W.2d 926, 927-
        28 (denial of motion to dismiss for improper service of process and expiration
        of the statute of limitations); Bison Twp. v. Perkins Cty., 2002 S.D. 22, ¶¶ 5-7,
        640 N.W.2d 503, 505 (motion to dismiss and dismissal for untimely service of
        a notice of appeal).

3.      As this Court has often stated: “The issue of jurisdiction may be raised at
        any time[.]” Sazama v. State ex rel. Muilenberg, 2007 S.D. 17, ¶ 9, 729
        N.W.2d 335, 340 (quoting Wold Family Farms, Inc. v. Heartland Organic
        Foods, Inc., 2003 S.D. 45, ¶ 12, 661 N.W.2d 719, 723).

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#27548

5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350

(3d ed. 2016) (footnotes omitted). Thus, for example, in Vitek v. Bon Homme County

Board of Commissioners, 2002 S.D. 100, ¶ 6, 650 N.W.2d 513, 515, the motion to

dismiss the appeal to circuit court was raised by a motion for judgment on the

pleadings. Rather than setting forth the de novo standard of review for

jurisdictional issues, however, we cited the standard of review for a judgment on the

pleadings. Id. ¶ 7, 650 N.W.2d at 516.

[¶9.]         Because of this confusion, we take this opportunity to make clear that

whatever the name of the motion or whatever the title of the court’s disposition, we

review a dismissal for lack of jurisdiction as a “question[] of law under the de novo

standard of review.” AEG, 2013 S.D. 75, ¶ 7 n.2, 838 N.W.2d at 847 n.2 (quoting

O’Neill Farms, 2010 S.D. 25, ¶ 7, 780 N.W.2d at 57-58. 4 This is in keeping with the

principle that “[w]e review issues of jurisdiction de novo because they are questions

of law.” Tornow v. Sioux Falls Civil Serv. Bd., 2013 S.D. 20, ¶ 10, 827 N.W.2d 852,

855. 5 Further, when statutory interpretation is relevant to the inquiry, “statutory




4.      See also In re Yankton Cty. Comm’n, 2003 S.D. 109, ¶ 9, 670 N.W.2d 34, 37
        (“Subject matter jurisdiction to conduct an appeal from a county commission
        decision presents a question of law.”); Risse, 1998 S.D. 112, ¶ 10, 585 N.W.2d
        at 876 (“This Court reviews challenges to court jurisdiction de novo.”); Wright
        & Miller, at § 1350 (“It is widely—indeed, universally—accepted . . . that
        courts of appeal, when reviewing Rule 12(b)(1) dismissals by district courts,
        for a lack of subject matter jurisdiction, exercise de novo review over legal
        conclusions.”).

5.      Accord Cable v. Union Cty. Bd. of Cty. Comm’rs, 2009 S.D. 59, ¶ 19, 769
        N.W.2d 817, 825; Grajczyk v. Tasca, 2006 S.D. 55, ¶ 8, 717 N.W.2d 624, 627;
        State ex rel. LeCompte v. Keckler, 2001 S.D. 68, ¶ 6, 628 N.W.2d 749, 752; In
                                                                    continued . . .
                                            -5-
#27548

interpretation is [also] a question of law, reviewed de novo.” AEG, 2013 S.D. 75, ¶ 7

n.2, 838 N.W.2d at 847 n.2 (quoting Hass v. Wentzlaff, 2012 S.D. 50, ¶ 12, 816

N.W.2d 96, 101). 6 To this extent, therefore, the standard of review as set forth in

AEG is correct. However, we caution against rote references to summary judgment

as part of the standard. Not all summary judgment standards may apply to a

motion to dismiss for lack of jurisdiction. Compare e.g. Hutterville Hutterian

Brethren, Inc. v. Waldner, 2010 S.D. 86, ¶ 20, 791 N.W.2d 169, 175 (holding that in

a Rule 12(b)(1) factual attack on a circuit court’s subject matter jurisdiction “the

court must . . . weigh the evidence and resolve disputed issues of fact affecting the

merits of the jurisdictional dispute.”), with Foster-Naser v. Aurora Cty., 2016 S.D. 6,

¶ 11, 874 N.W.2d 505, 508 (noting that in ruling on a motion for summary

judgment, the court must “resolve disputed facts in favor of the nonmoving party[.]”

(quoting Fisher v. Kahler, 2002 S.D. 30, ¶ 5, 641 N.W.2d 122, 125)).

[¶10.]         Having clarified the standard of review, we turn our analysis to Upell’s

claim of error in the dismissal of her appeal. Our analysis begins with Schrank v.

Pennington County Board of Commissioners, 1998 S.D. 108, 584 N.W.2d 680. In

Schrank, the county commission issued a conditional use permit to Alexander

Drilling. Schrank appealed the commission’s decision to the circuit court. Id. ¶ 2.

Schrank served the notice of appeal on a county commissioner but not upon


. . . continued
         re Estate of Galada, 1999 S.D. 21, ¶ 8, 589 N.W.2d 221, 222-23; Kroupa v.
         Kroupa, 1998 S.D. 4, ¶ 10, 574 N.W.2d 208, 210.

6.       Accord In re Yankton Cty. Comm’n, 2003 S.D. 109, ¶ 9, 670 N.W.2d at 37;
         Vitek, 2002 S.D. 100, ¶ 8, 650 N.W.2d at 516.

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Alexander. Id. ¶ 2, 584 N.W.2d at 681. As he was not served, Alexander moved to

dismiss. Id. ¶ 3. The circuit court denied the motion and ultimately reversed the

county’s decision. Id. Both Alexander and the county appealed to this Court. Id. ¶

4. Appellants argued that the circuit court did not have jurisdiction over the appeal

because Alexander was not personally served with the notice of appeal. Id. ¶ 8. We

disagreed. Id.

[¶11.]       Observing that the appeal was brought under SDCL 7-8-29, we

accepted the appellants’ premise that compliance with the statute authorizing the

appeal was jurisdictional. Id. ¶¶ 10-11. We noted: “[W]hen the statute authorizing

[an] appeal requires a designated person to be made a party . . . the failure to do so

constitute[s] noncompliance with its terms and thus involve[s] subject matter

jurisdiction.” Id. ¶ 10. (quoting Fong v. Planning & Zoning Bd. of Appeals, 563 A.2d

293, 298 (Conn. 1989)). We concluded that there was no lack of subject matter

jurisdiction because the requirements for service under SDCL 7-8-29 were strictly

followed; “Schrank was not statutorily required to serve notice on Alexander,” and

service was made on one of the members of the board. Id. ¶ 9. Accordingly, we

affirmed the circuit court’s denial of the motion to dismiss the appeal.

[¶12.]       Here, in contrast with Schrank, SDCL 7-8-29’s requirement of service

on “one of the members of the board” was not fulfilled, and the statute was not

strictly followed. Therefore, this case presents the jurisdictional defect that was not

present in Schrank. Because there was no subject matter jurisdiction the circuit

court properly dismissed the appeal under Schrank.



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[¶13.]         Upell cites Bison Township for a contrary result. In Bison Township,

twelve townships appealed a county decision to circuit court. 2002 S.D. 22, ¶ 1, 640

N.W.2d at 504. However, the circuit court clerk received the townships’ notice of

appeal a day late. Id. ¶ 6, 640 N.W.2d at 505. Therefore, the circuit court granted

the county’s motion to dismiss the appeal as untimely under SDCL 7-8-29. Id. On

appeal to this Court, the townships argued that, under SDCL 15-6-5(b) 7 service by

mail was complete upon mailing, therefore the appeal was timely because the notice

of appeal was mailed within the appeal time. Id. ¶ 10, 640 N.W.2d at 506. This

Court agreed, holding that under SDCL 15-6-5(a) 8 service of the notice of appeal fell

within SDCL chapter 15-6 and, “therefore [could] be deemed complete upon

mailing.” Id. ¶ 12. 9



7.       SDCL 15-6-5(b) provides in pertinent part: “Service by mail shall be by first
         class mail and is complete upon mailing.”

8.       SDCL 15-6-5(a) provides in pertinent part:

               Except as otherwise provided in this chapter, every order
               required by its terms to be served, every pleading
               subsequent to the original complaint unless the court
               otherwise orders because of numerous defendants, every
               written motion other than one which may be heard ex
               parte, and every written notice, appearance, demand,
               offer or judgment, and similar paper shall be served upon
               each of the parties.

9.       As part of the decision in Bison Township, this Court also rejected the
         county’s contention that SDCL 15-6-4(d)(4)(i) required personal service of the
         notice of appeal on a commissioner. The Court rejected application of this
         statute, which has since been re-numbered as SDCL 15-6-4(d)(2)(i), because it
         applied to service of a summons. Instead, the Court applied SDCL 15-6-5
         because it more generally applied to “the service and filing of pleadings and
         other papers.” See Bison Twp., 2002 S.D. 22, ¶ 12, 640 N.W.2d at 506.
                                                                     continued . . .
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[¶14.]         Upell argues that SDCL 15-6-5(b), 10 which permits service on a

party’s attorney, applies here and therefore her appeal was perfected by her service

on the commissioners’ attorney (i.e., the state’s attorney). We disagree. Although

we recognized that “SDCL chapter 15-6 governs the rules of procedure in circuit

courts[,]” Bison Township, 2002 S.D. 22, ¶ 12, 640 N.W.2d at 506, it is “with the

exceptions stated in § 15-6-81.” SDCL 15-6-1. SDCL 15-6-81(c) provides: “This

chapter [15-6] does not supersede the provisions of statutes relating to appeals to

the circuit courts.” Thus, to the extent the rules of procedure conflict with the

statutes relating to appeals to the circuit courts, the statutes must prevail. 11 SDCL

7-8-29 specifically requires service of a notice of appeal of a county decision on “one

of the members of the board” of county commissioners. Upell did not comply with

this requirement and, as a result, violated the jurisdictional prerequisite for her

appeal.



. . . continued

10.      SDCL 15-6-5(b) provides in pertinent part: “Whenever under this chapter
         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 himself is ordered by the court.”

11.      We recently reiterated a similar principle in Lake Hendricks Improvement
         Ass’n v. Brookings County Planning & Zoning Commission, holding that the
         rules of civil procedure are applicable in this Court, but “only to the extent
         that ‘a specific statute or rule [does not direct] otherwise.’” 2016 S.D. 17, ¶ 7,
         877 N.W.2d 99, 103 (alteration in original) (quoting Ripple v. Wold, 1997 S.D.
         135, ¶ 10, 572 N.W.2d 439, 441-42). This is consistent with the principle that
         “terms of a statute relating to a particular subject will prevail over the
         general terms of another statute.” Vitek, 2002 S.D. 100, ¶ 11, 650 N.W.2d at
         517 (quoting Moss v. Guttormson, 1996 S.D. 76, ¶ 10, 551 N.W.2d 14, 17).


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[¶15.]         This conclusion is reinforced by our decision in Vitek. As noted above,

in Vitek, we reviewed a circuit court’s dismissal of an appeal from a decision of a

board of county commissioners. 2002 S.D. 100, ¶ 6, 650 N.W.2d at 515. The

dismissal was based upon the appellant’s failure to personally serve the notice of

appeal on a member of the board of county commissioners. The appellee argued

that personal service was necessary under SDCL 7-8-29 and SDCL 15-6-4(d)(4)(i), 12

which required personal service of a summons on a county commissioner. Id. ¶ 13,

650 N.W.2d at 517. We held that SDCL 7-8-29 does not require personal service of

a notice of appeal on a county commissioner and that service by mail is sufficient.

Id. ¶14. In reaching this conclusion we relied on Bison Township and the provisions

of SDCL 15-6-5. But we cautioned that:

               [T]his type of appeal falls somewhere between an
               administrative appeal and an appeal to this Court. An
               appeal from a county commission decision is not covered
               by chapter 1-26, which refers to administrative appeals,
               because the term “agency” does not include “any unit of
               local government.” See SDCL 1-26-1. Neither, however, is
               it completely covered by chapter 15-6, which refers to civil
               appeals generally.

Vitek, 2002 S.D. 100, ¶ 11, 650 N.W.2d at 517 (emphasis added). Thus, the Court

recognized that, as in Bison Township, it may be appropriate to consult SDCL

chapter 15-6 to clarify the method of service of a notice of appeal of a county

commission decision. Id. (noting that while “chapter 7-8 controls the procedure for

appealing a county commission decision as far as it goes, . . . in determining the

proper method of service, it is necessary to look elsewhere.”). It also noted,


12.      Re-numbered as SDCL 15-6-4(d)(2)(i). See 2005 S.D. Sess. Laws ch. 287.

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however, that SDCL 7-8-27 and SDCL 7-8-29 “direct when and to whom service is

[to be] made[.]” Id. ¶ 10.

[¶16.]       Here, service was not made “on one of the members of the board” of

county commissioners as directed by SDCL 7-8-29. Therefore, the circuit court

correctly dismissed the appeal under Schrank, 1998 S.D. 680, ¶ 10, 584 N.W.2d at

681.

[¶17.]       Yet Upell argues that her notice of appeal was adequate to fulfill due

process considerations and dismissal of her appeal was not required. This ignores

Schrank’s requirement of strict compliance with the service provisions of SDCL 7-8-

29 and its recognition that lack of strict compliance deprives the circuit court of

subject matter jurisdiction. See Schrank, 1998 S.D. 680, ¶ 10, 584 N.W.2d at 681.

Absent jurisdiction, no other course remained for the court but to dismiss the

appeal. See Woods v. Unified Gov’t of WYCO/KCK, 275 P.3d 46, 51 (Kan. 2012)

(holding “the district court had no other choice but to dismiss the untimely-filed

appeal.”); In re Int. of B.M.H., 446 N.W.2d 222, 224 (Neb. 1989) (noting in

dismissing an appeal that “[a]n appellate court acquires no jurisdiction unless the

appellant has satisfied the requirements for appellate jurisdiction, including a

notice of appeal filed within the prescribed time.”).

[¶18.]       Upell also argues that she “substantially complied” with the notice

requirements of SDCL 15-6-5 and, therefore, service of her notice of appeal was

adequate under Wagner v. Truesdell, 1998 S.D. 9, 574 N.W.2d 627. As already

discussed, however, SDCL 15-6-5 is not the operative rule as to who must be served

with a notice of appeal from a decision of a county commission. That is controlled

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by SDCL 7-8-29. Vitek, 2002 S.D. 100, ¶ 10, 650 N.W.2d at 517. Upell did not

comply with SDCL 7-8-29.

[¶19.]         Further, Wagner was an unusual case involving service of a summons

and complaint on an unadjudicated incompetent living in his home, under the

temporary care of a friend. Wagner, 1998 S.D. 9, ¶ 3, N.W.2d at 628. Applying the

doctrine of substantial compliance, this Court held that, under those circumstances,

personal service on the temporary caretaker was adequate to commence the action.

Id. ¶ 11, 574 N.W.2d at 630. Wagner, however, has repeatedly been distinguished

by this Court on its facts. 13 Moreover, this Court has specifically held, in the

context of reviewing a dismissal of an appeal to circuit court that, “the doctrine of

substantial compliance cannot be substituted for jurisdictional prerequisites.” AEG,

2013 S.D. 75, ¶ 23, 838 N.W.2d at 850.




13.      See e.g. White Eagle, 2000 S.D. 34, ¶¶ 13-14, 606 N.W.2d at 929-30
         (distinguishing Wagner and declining to apply the substantial compliance
         doctrine in assessing the sufficiency of service of process to commence a civil
         action against a municipality); Lekanidis v. Bendetti, 2000 S.D. 86, ¶¶ 21-23,
         613 N.W.2d 542, 546-47 (declining to apply the substantial compliance
         doctrine to the requirements for substituted service of process on a
         nonresident motorist); Spade v. Branum, 2002 S.D. 43, ¶ 9, 643 N.W.2d 765,
         768 (distinguishing Wagner and declining to apply the substantial compliance
         doctrine to the requirements for service by publication); Edsill v. Schultz,
         2002 S.D. 44, ¶¶ 9-11, 643 N.W.2d 760, 763-64 (distinguishing Wagner and
         declining to apply the substantial compliance doctrine to the requirements for
         substituted service of process by a sheriff); R.B.O. v. Priests of the Sacred
         Heart, 2011 S.D. 86, ¶¶ 13-17, 807 N.W.2d 808, 811-13 (distinguishing
         Wagner and declining to apply the substantial compliance doctrine to uphold
         personal service of process on a business entity).

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[¶20.]       Upell failed to comply with the jurisdictional prerequisites for her

appeal as defined by Schrank. We decline to apply the doctrine of substantial

compliance and affirm the court’s dismissal of Upell’s appeal.

[¶21.]       Affirmed.

[¶22.]       GILBERTSON, Chief Justice and ZINTER, SEVERSON, and

WILBUR, Justices, concur.




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