Livingston Financial, LLC, as successor in interest to US Bank, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-2004

Livingston Financial, LLC,
as successor in interest to US Bank,
Respondent,

vs.

Daniel O. Ward, II,
Appellant.

Filed June 19, 2017
Reversed and remanded
Bratvold, Judge

Ramsey County District Court
File No. 62-CV-08-7877

Ryan Supple, Derrick Weber, Messerli & Kramer P.A., Plymouth, Minnesota (for
respondent)

Michael Kemp, MET Law Group, St. Paul, Minnesota (for appellant)

Considered and decided by Bratvold , Presiding Judge; Halbrooks, Judge; and
Jesson, Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
Appellant challenges the district court’s denial of his motion , under Minn. R. Civ.
P. 60.02(d), to vacate a default judgment. Appellant argues that the judgment was void for
lack of personal jurisdiction because substitute service was not completed at his “usual
2
place of abode .” Because we are unable to discern the district court’s findings regarding
appellant’s usual place of abode at the time of service , whether substitute service was
effective and, if not, whether the default judgment was void for lack of personal jurisdiction
over appellant, we reverse and remand for additional proceedings consistent with this
opinion.
FACTS
Respondent Livingston Financial, LLC, sued appellant Daniel Ward to recover on
defaulted credit card accounts. On April 3, 2008, Livingston, through the Ramsey County
Sheriff’s Office, served the summons and complaint on Ward’s wife at an address on Dale
Street North in Saint Paul, Minnesota (Dale Street address). Ward’s wife averred that she
informed the deputy Ward no l onger lived at the Dale Street a ddress; she accepted “the
package and signed for it anyway, but never delivered it.” The deputy signed an affidavit
of service, stating that service was completed by leaving a copy of the summons and
complaint with Ward’s wife at his “usual abode.”
Ward did not file an answer or otherwise respond to the complaint. In August 2008,
the district court granted Livingston’s motion to enter a default judgment against Ward for
$2,619.99. Between August 2008 and January 2013, Livingston attempted to collect on the
judgment by sending Ward several garnishment summons es to the Dale Street a ddress.
Livingston did not receive notice of a change d address, and the summonses were not
returned for incorrect mailing addresses.
In February 2013, Ward called counsel to discuss settlement, and Ward confirmed
that h is address was the Dale Street a ddress. For three months, Ward regularly
3
communicated with Livingston’s counsel about garnishment. In June 2013, Ward informed
Livingston’s counsel that “he may have a new address,” but he refused to provide it and
requested correspondence be sent to the Dale Street a ddress. Accordingly, Livingston
continued to send garnishment summonses to the Dale Street address. In July 2014, Ward
told Livingston’s counsel that he had received correspondence from Livingston at the Dale
Street a ddress. Between August 2014 and June 2016, Livingston sent four additional
garnishment summonses to the Dale Street address.
On June 28, 2016, Ward’s obligation to Livingston was fully satisfied via
garnishment, and Ward’s credit account was closed. 1 On June 29, 2016 , Ward moved to
vacate the default judgment under Minn. R. Civ. P. 60.02 (d), arguing that it was void for
lack of personal jurisdiction due to ineffective service. Ward contended that substitute
service on his wife was ineffective because the Dale Street address was not his “usual place
of abode.” Ward asserted that he moved out of the Dale Street address before Livingston
attempted service in April 2008.
Ward submitted his own affidavit and an affidavit by his wife, averring that, at the
time of service, he and his wife were married but had separated. Ward’s affidavit states
that, in October 2007, he moved out of the Dale Street address and into a property located

1 Livingston argued to the district court that Ward’s motion to vacate was moot because
the judgment was satisfied. The district court rejected this argument because the judgment
was satisfied involuntarily via garnishment , relying on Lyon Fin. Servs., Inc. v. Waddill ,
607 N.W.2d 453, 454–55 (Minn. App. 2000) . Livingston did not a ppeal this issue. Lyon
held an involuntarily satisfied judgment does not preclude a party from moving to vacate
the judgment because, unlike a voluntarily satisfied judgment, “it does not involve a waiver
of rights that results in mootness.” Id. at 455.
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on Topping Street in Saint Paul (Topping Street a ddress). Ward did not leave personal
property or receive mail at the Dale Street address, and he did not intend to return. Wife’s
affidavit corroborates many details and states that she believed the separation was
permanent, but she “did not know where he went after he moved out.” Ward submitted
exhibits establishing that he listed the Topping Street a ddress on an application for a new
driver’s license in December 2007, he received mail addressed to him at the Topping Street
address in 2008, and the Internal Revenue Service listed the Topping Street address as his
address for the 2008 tax year.
In r esponse, Livingston submitted an affidavit by its counsel documenting
communications with Ward from 2013 through 2016. Applying a four-factor test set out in
Finden v. Klaas , the district court determined that: (1) Ward’s jurisdictional challenge
lacked merit because the evidence that Ward had moved out of the Dale Street address was
not clear and convincing; (2) Ward had no reasonable excuse for not answering the
complaint; (3) Ward was not diligent in bringing his motion to vacate because he waited
more than eight y ears after judgment was en tered; and (4) Livingston would be
substantially prejudiced if the judgment was vacated because Livingston’s claim might be
time-barred. See 268 Minn. 268, 271, 128 N.W.2d 748, 750 (1964) . Accordingly, the
district court denied Ward’s motion to vacate. Ward appeals.
D E C I S I O N
At the outset, Ward argues that the district court applied the wrong legal analysis to
his motion to vacate a void judgment under Minn. R. Civ. P. 60.02(d). Generally, this court
reviews a district court’s decision whether to vacate a judgment for an abuse of discretion,
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and the district court must consider four “ Finden factors,” including whether : (1) the
moving party has a reasonable claim on the merits; (2) there is a reasonable excuse for the
moving party’s failure to act; (3) the moving party acted with due diligence after receiving
notice of the entry of judgment; and (4) the opposing party will suffer any substantial
prejudice if judgment is vacated . Gams v. Houghton , 884 N.W.2d 611, 619–20 (Minn.
2016) (citing Finden, 268 Minn. at 271, 128 N.W.2d at 750).
But when a party moves to vacate a void judgment under Minn. R. Civ. P. 60.02(d),
no discretion is involved. Hengel v. Hyatt , 312 Minn. 317, 318, 252 N.W.2d 105, 106
(1977). A district court must vacate a void judgment, “without regard to such factors as the
existence of a meritorious defense.” Peterson v. Eishen, 495 N.W.2d 223, 225 (Minn. App.
1993), aff’d, 512 N.W.2d 338 (Minn. 1994). A judgment is void if the issuing court lacked
personal jurisdiction over a party due to ineffective service of process. Hengel, 312 Minn.
at 318, 252 N.W.2d at 106. Whether service of process was effective, and whether a court
therefore had personal jurisdiction, is a legal question that this court reviews de novo.
Shamrock Dev., Inc. v. Smith , 754 N.W.2d 377, 382 (Minn. 2008). “ We also review the
construction and application of the Minnesota Rules of Civil Procedure de novo.” Id. Thus,
the issue for this court is whether service of process on Ward was effective.
I. Substitute service must be completed at the defendant’s “usual place of abode.”
“Service of process in a manner not authorized by the rule is ineffective service .”
Tullis v. Federated Mut. Ins. Co. , 570 N.W.2d 309, 311 (Minn. 1997). The Minnesota
Rules of Civil Procedure authorize personal service by leaving “a copy at the individual’s
usual place of abode with some person of suitable age and discretion then residing therein.”
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Jaeger v. Palladium Holdings, LLC, 884 N.W.2d 601, 604 (Minn. 2016) (emphasis added).
This is called “substitute service.” Id. at 605.
Determination of a person’s usual place of abode is a fact question for the district
court to determine. Lundgren v. Green, 592 N.W.2d 888, 890 (Minn. App. 1999), review
denied (Minn. July 28, 1999). “‘ [U]sual place of abode’ is a much more r estricted term
than ‘residence,’ and means the place where the defendant is actually living at the time
when service is made .” Holtberg v. Bommersbach , 236 Minn. 335, 337 , 52 N.W.2d 766,
768 (1952) (emphasis added).
When a defendant questions the effectiveness of service, Minnesota courts apply a
burden-shifting framework. Plaintiff bears the initial burden of submitting evidence of
effective service. DeCook v. Olmsted Med. Ctr., Inc., 875 N.W.2d 263, 271 (Minn. 2016).
This initial burden is a “low hurdle,” and may be accomplished through submission of an
affidavit of service verifying that service was completed. Id. If the plaintiff meets its initial
burden, the burden shifts to the defendant to show ineffective service. Id.
Here, Livingston satisfied its initial burden by submitting the deputy’s affidavit of
service, which stated that service wa s completed at the Dale Street a ddress and given to
Ward’s wife, and that the Dale Street address was Ward’s usual place of abode. Therefore,
the burden shifted to Ward to prove ineffective service.
II. An affidavit of service is inconclusive evidence of effective service when the
process server lacked personal knowledge of the defendant’s usual place of
abode.

Ward argues that service was ineffective because the D ale Street a ddress was not
his usual place of abode. Livingston responds that Ward did not provide sufficient evidence
7
“that he was living elsewhere on the date of service.” The district court stated th at Ward
was required to rebut Livingston’s affidavit of service with clear and convincing evidence.2
Ward argues that the clear-and-convincing-evidence standard does not apply.
Generally, an affidavit of service is “strong evidence of proper service,” an d must
“be overcome by the production of clear and convincing evidence.” Peterson, 495 N.W.2d
at 225–26. But “when the process server has no personal knowledge regarding where the
defendant actually is living, the portion of the affidavit of service relating to the defendant’s
usual place of abode is inconclusive .” Id. at 226. Lack of personal knowledge, however,
does not wholly overcome “the effect of the [affidavit of service] as prima facie evidence”
and the defendant still bears the burden of proving ineffective service. Kueffner v.
Gottfried, 154 Minn. 70, 73, 191 N.W. 271, 272 (1922).
Livingston did not submit any evidence establishing the deputy’s personal
knowledge of Ward’s usual place of abode. Therefore, the portion of the deputy’s affidavit
of service related to Ward’s usual place of abode is inconclusive. Ward retained the burden
to rebut Livingston’s affidavit of service, but we can find no legal authority holding that a
defendant must prove usual place of abode b y clear and conv incing evidence when the

2 Ward also argues that the district court erred because it applied an “undisputed” evidence
standard. We disagree. In comparing the facts of this case to another case, the district court
noted that Ward’s evidence conflicted with Livingston’s evidence and that “[t]his
contradictory inf ormation is not the kind of ‘undisputed’ information that the court of
appeals described in” Lundgren, 592 N.W.2d 888, where this court found that substitute
service was ineffective. The district court’s comment did not state the evidentiary standard
it was applying, but rather discussed Minnesota precedent and stated that the evidence in
Ward’s case created a fact dispute.
8
plaintiff’s evidence of service is inconclusive. Thus, the district court erred in its analysis
of Ward’s evidence.
Livingston urges us to conclude that the district court found Ward’s usual place of
abode was the Dale Street address in April 2008 and that this finding is supported by record
evidence. While the district court’s decision may suggest the likelihood that it would make
a finding adverse to Ward, we discern no such finding in the court’s decision.
The district court determined that Ward separated from his wife in October 2007
and that both Ward and his wife believed the separa tion was permanent. But the district
court also noted that Ward’s assertion that he ha d moved out of the Dale Street a ddress
conflicted with statements he “allegedly” made to Livingston’s counsel more than six years
after service. The district court also summarized conflicting statements in wife’ s and the
deputy’s affidavits and stated that the deputy’s affidavit of service “does not reflect the
version of events advanced by Ms . Ward.” In closing this discussion of the evidence , the
district court determined that it was disputed whether Ward “made his own home, removed
his personal belongings from his wife’s house and, most import antly, had no intent of
returning.”
We agree that the evidence creates a fact question as to whether Ward had
permanently moved out of the Dale Street a ddress with no intent of returning at the time
of service. It is unclear to us, however, how the district court resolved this fact dispute, or
what weight the district court assigned to the parties’ affidavits. See Lundgren, 592 N.W.2d
at 890 (stating that determination of a person’s usual place of abode is a fact question, and
appellate review is limited to determining whether the district court’s findings are clearly
9
erroneous); see also Holtberg, 236 Minn. at 338, 52 N.W.2d at 769 ( noting that this court
defers to a district court’s assignment of weight to conflicting affidavits).
Livingston also a rgues that this court should affirm based on the district court’s
determination that Ward did not have a reasonable defense on the merits. 3 But, as we
explained above, whether Ward’s jurisdictional defense was reasonable on the merits and
whether the court had personal jurisdiction over Ward are two different legal
determinations.
We are unable to conduct effective appellate review w ithout relevant factual and
credibility determinations. Wright Elec., Inc. v. Ouellette , 686 N.W.2d 313, 324 (Minn.
App. 2004) (“[T]his court cannot serve as the fact-finder.”), review denied (Minn. Dec. 14,
2004); see also Nelson v. Schlener , 859 N.W.2d 288, 294 (Minn. 2015) (stating that this
court’s function “is limited to identifying errors and then correcting them” (quotation
omitted)). Therefore, we reverse and remand to the district court to determine Ward’s usual
place of abode at the time of service , whether substitute service was effective and, if not,
whether the default judgment was void for lack of personal jurisdiction.
Reversed and remanded.

3 Livingston argues alternatively that the district court’s decision should be affirmed
because Ward’s vacatur motion was untimely und er Minn. R. Civ. P. 60.02. See Bode v.
Minn. Dep’t of Nat. Res., 612 N.W.2d 862, 869–70 (Minn. 2000) (holding that a motion to
vacate a judgment that is void for lack of subject-matter jurisdiction must be brought within
a “reasonable time” ). Livingston di d not raise the timeliness issue in the district court ,
therefore, it is not properly before us and we do not address it. Thiele v. Stich, 425 N.W.2d
580, 582 (Minn. 1988).