Berg, Debele, DeSmidt & Rabuse, P.A., f/d/b/a Walling, Berg & Debele, P. A., 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This opinion will be unpublished and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
A17-1118

Berg, Debele, DeSmidt & Rabuse, P.A.,
f/d/b/a Walling, Berg & Debele, P. A.,
Respondent,

vs.

Robert I. Burns, Jr.,
Appellant.

Filed April 16, 2018
Affirmed
Rodenberg, Judge

Hennepin County District Court
File No. 27-CV-17-1943

Robert A. Judd, Bradley D. Hauswirth, Na than B. Serr, Wagner, Falconer & Judd, Ltd.,
Minneapolis, Minnesota (for respondent)

Robert I. Burns, Jr., Edina, Minnesota (pro se appellant)

Considered and decided by Rodenberg, Presiding Judge; Bjorkman, Judge; and
Smith, Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant Robert I. Burns Jr. appeals from the district court’s order denying his
motion under Minn. R. Civ. P. 60.02 to vacate a default judgment. He argues that the
district court did not have personal jurisdic tion over him because th e respondent did not

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satisfy the requirements for service by publicati on. He also argues th at the district court
made improper factual findings and erroneously denied his rule 60.02(a) motion. Because
respondent met the requirements for servi ng appellant by publication, and because
appellant fails to satisfy the Finden elements necessary for a district court to grant a rule
60.02(a) motion, the district court did not err when it denied appellant’s motion. Therefore,
we affirm.
FACTS
Appellant hired respondent law firm to represent him in a divorce case. Appellant
signed a retainer agreement, in which he agreed to be billed monthly for respondent’s legal
services. He also agreed that payment fo r each monthly bill was due upon receipt.
Appellant made payments to respondent as agreed until appellant sought to withdraw from
a settlement agreement that had been read into the record before the dissolution court.
Respondent saw no legal basis upon which appe llant might withdraw from the settlement
agreement, and told him so. With appellant’s permi ssion, respondent withdrew from
representing appellant in June of 2016. Appellant did not pay his May and June bills,
despite emails sent to him by respondent in June, July, and August setting out the total
amount due and owing to respondent, whic h was then over $1 8,000. Respondent
eventually enlisted the help of a collection firm, and th at firm began collection efforts.
Appellant did not contest the bills until after collection efforts had begun.
Unable to resolve the unpaid bill, the collection firm sought and was granted
authorization from respondent law firm to sue appellant. It attempted to serve appellant
with process. A process-serving company made 20 separate attempts to serve appellant at

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both his place of work a nd his last-known residence. At one point, the process server
arrived at appellant’s place of work while appellant was in a meeting, and appellant refused
to leave the meeting. A proce ss server also made contact with appellant at his residence,
apparently by telephone, but appellant informed the process server that he was out of town.
The collection firm then engaged the servic es of the Hennepin County Sheriff to serve
appellant. The sheriff’s department made multip le attempts at service, without success.
Respondent filed an Affidavit for Publication of Summons with the district court indicating
that appellant was residing in Minnesota but was concealing himself to avoid service of
process. Respondent law fi rm then published the summons and complaint on three
successive Thursdays. Appellant made no an swer or other appearance after service by
publication. The district court entered a de fault judgment against appellant on March 31,
2017.
After he was served with the notice of the entry and docketing of judgment,
appellant moved to vacate the default judgment pursuant to rule 60.02. The district court
found that an acco unt stated was created when, afte r a number of months and multiple
billings, appellant failed to contest the am ount respondent claimed was outstanding. It
further found that appellant was avoiding service and, accordingly, service by publication
was proper. The district court also concluded that appellant had neither a reasonable excuse
for defaulting nor a defense on the merits. It denied appellant’s rule 60.02 motion.
This appeal followed.

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D E C I S I O N
Appellant challenges the district court’s order denying his motion to vacate the
default judgment against him, arguing that the district court abused its discretion when it
denied him relief under Minn. R. Civ. P. 60.02. Rule 60.02 pr ovides that a district court
may vacate a judgment for, among other things : “mistake, inadvertence, surprise, or
excusable neglect”; the discovery of new evidence which could not have been obtained by
due diligence in time for a new-trial motion; fraud; the judgment being void; or “any other
reason justifying relief from the operation of th e judgment.” Minn. R. Civ. P. 60.02.
Appellant makes two distinct ar guments on appeal. First, he argues that judgment never
should have been entered against him because he wa s not properly serv ed. Second, he
argues that, even if he was properly served by publication, he should have relief under rule
60.02(a) because his failure to answer the complaint was excusable under the
circumstances.
I. Service by publication was proper.

We first address appellant’s argument that he is entitled to relief under rule 60.02
because he was never properly served, ma king the judgment void against him and
warranting that it be vacated under rule 60.02(d). Minn. R. Civ. P. 60.02(d).
If a judgment is void for want of personal jurisdiction, it must be set aside regardless
of the merits of the case. Hengel v. Hyatt , 312 Minn. 317, 318, 252 N.W.2d 105, 106
(1977). Appellant contends service was not pr oper because respondent knew appellant’s
address at the time it submitted an affidavit to the district court stating that appellant was
avoiding service and could not be found. He al so argues, as part of this contention, that

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respondent’s failure to mail him a copy of the summons and complaint makes a difference.
Appellant further contends that the district court did not make the necessary findings under
Minn. R. Civ. P. 4.04, including whether a ppellant’s place of residence was unknown,
whether respondent conducted a due and diligent search for appellant, and whether
appellant concealed himself with in the state with the intent to avoid service. Finally,
appellant argues that the district court’s factual findings are clearly erroneous.
“Whether service of process was effectiv e, and personal jurisdiction therefore
exists, is a question of law that we review de novo.” Shamrock Dev. Inc. v. Smith , 754
N.W.2d 377, 382 (Minn. 2008 ). A defendant challenging suffi ciency of service has the
burden of showing that service was improper. Id. at 384. “[I]n conducting this review, we
must apply the facts as found by the district court unless those factual findings are clearly
erroneous.” Id. at 382. To determine whether a findi ng of fact is clearly erroneous, “we
examine the record to see if there is reasonable evidence in the record to support the court’s
findings. And when determining whether a fi nding of fact is clearl y erroneous, we view
the evidence in the light most favorable” to the facts found in the district court. Rasmussen
v. Two Harbors Fish Co. , 832 N.W.2d 790, 797 (Minn. 201 3) (quotations and citations
omitted).
Minn. R. Civ. P. 4.04(a) specifies those cases wherein “service by publication shall
be sufficient to confer jurisdiction.” Th e applicable provision here, rule 4.04(a)(1),
provides that service by publi cation is appropriate “[w]hen the defendant is a resident
individual domiciliary having departed from the state with intent to defraud creditors, or to
avoid service, or remains concealed therein with the like intent.” Section (a) also provides:

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The summons may be served by three weeks’ published notice
in any of the cases enumerated herein when the complaint and
an affidavit of the plaintiff or plaintiff’s attorney have been
filed with the court. The affida vit shall state the existence of
one of the enumerated cases, a nd that the affiant believes the
defendant is not a resident of the state or cannot be found
therein, and either that the a ffiant has mailed a copy of the
summons to the defendant at the defendant’s place of residence
or that such residence is not known to the affiant.

Minn. R. Civ. P. 4.04(a). In any case, Minne sota law requires that a diligent effort must
have been made to personally serve the defendant. Arnold v. Boggs, 129 Minn. 270, 271,
152 N.W. 640, 641 (1915).
Here, respondent submitted an Affidavit for Publication of Summons to the district
court, which stated that appellant “is a resident individual who has kept himself concealed
within the State with the intent of avoiding service of process”; “[t]hat after due and diligent
search, the Plaintiff has not been able to find the Defendant within the State of Minnesota”;
and “[t]hat the Defendant’s place of residenc e is unknown.” Respondent also filed an
Affidavit of Not Found from a Metro Legal Se rvices Inc. process server and a similar
affidavit from the Henne pin County Sheriff. The record al so contains an Affidavit of
Publication, showing that the summons was published for three consecutive weeks.
Respondent complied w ith the requirements of rule 4.04 concerning service by
publication. Appellant agrees that he lives in Minnesota. For rule 4.04 to be satisfied, the
district court needed to find that appellant “remain[ed] conc ealed” in the state with the
intent “to defraud creditors, or to avoid service.” Minn. R. Civ. P. 4.04(a)(1). The district
court made this finding, stating in its memorandum “it appears that defendant was avoiding
service and the use of service by publication wa s justified.” The district court also made

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the implicit finding that respondent conducte d a diligent search for appellant when it
described in detail the efforts made to pers onally serve appellant, including over 20
attempts to serve him at what were believed to be his work and residence addresses. To
our view, appellant was properly served by publication, and the record supports the district
court’s factual findings in suppor t of that conclusion. For th is reason, we conclude that
any defect in the district court’s articulati on of the basis for this decision regarding the
propriety of service by publication is harmless, and therefore not a basis for reversal. See
Minn. R. Civ. P. 61 (requiring harmless error to be ignored).
Appellant contends that re spondent lied in the affidav it submitted to the district
court by stating appellant’s place of resi dence was unknown. He also asserts that
respondent should have mailed the summons and complaint to appellant. After many failed
attempts to serve appellant at what it thought was his place of residence, and not finding
appellant there, respondent reasonably conc luded that it did not know where appellant
resided and so stated by affidavit. Minn. R. Civ. P. 4.04 does no t require that a party
attempt to mail a summons and complaint to a defendant at his last-known place of
residence for service by pu blication to be proper. 1 The rule requires either that the
summons be mailed to a defendant’s “place of residence” or that the plaintiff acknowledge
in an affidavit that the defend ant’s place of residence is unkn own. The district court did

1 Minn. R. Civ. P. 4.05 permits service by mail as an alterna tive to personal service, but
the rules do not require service by mail in cases where service by publication is permitted.
Respondent made no attempt to serve appellant under rule 4.05, and was not obliged to do
so.

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not err in concluding that respondent did not know appellant’s place of residence and that
service was proper despite no copy of the summons having been mailed to appellant.
II. Appellant failed to satisfy the Finden elements and is therefore not entitled to
relief under Minn. R. Civ. P. 60.02(a).

Appellant next argues that, even if the judgment against him is not void, he should
still be entitled to relie f from it and that the district cour t clearly erred by finding that he
has no reasonable excuse for defaulting and has no defense on the merits.
A party moving to reopen a default judgment must meet the four Finden elements:
that he (1) has “a reasonable defense on the me rits,” (2) “has a reas onable excuse for his
failure or neglect to answer,” (3) “has acted with due diligence after notice of the entry of
judgment,” and that (4) “no substantial prejudice will result to the other party.” Finden v.
Klass, 268 Minn. 268, 271, 128 N.W.2d 748, 750 (1964). All four of these elements must
be shown by the moving party to obtain relief. Gams v. Houghton, 884 N.W.2d 611, 619-
20 (Minn. 2016). A district court has broad, though not unlimited, discretion in ruling on
a rule 60.02 motion. Northland Temps., Inc. v. Turpin, 744 N.W.2d 398, 402 (Minn. App.
2008), review denied (Minn. Apr. 29, 2009). If the di strict court’s ruling on a rule 60.02
motion is based on a “misappreh ension of the law” or on “facts not supported by the
record,” we will reverse. Id. at 402-03 (quotation and citation omitted).
Here, the district court found that a ppellant failed to satisfy two of the Finden
elements. It found that ap pellant had no reasonable excuse for defaulting, and that
appellant has no defense on the merits.

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The district court’s conclusion that appella nt did not have a reasonable excuse for
defaulting is based on the finding, which the re cord supports, that appellant was avoiding
service and was on notice regard ing the suit against him. It follows from this supported
finding that appellant knew that he would be required to respond to the lawsuit. His willful
avoidance of service cannot amou nt to a reasonable excuse for not answering. On this
record, it is evident that appellant knew respondent was trying to sue him and that he was
actively avoiding service.
The record also supports the district c ourt’s determination that appellant has no
defense on the merits. “A reasonable defense on the merits is one that, if established,
provides a defense to th e plaintiff’s claim.” Id. at 403. The district court found that
appellant signed a retainer agreement for the respondent to represent him in a divorce and
that appellant “agreed to be billed for legal services monthly and understood that payment
of the monthly billing was due upon receipt.” It found that that appellant followed the
agreement and paid his bills until the parties disagreed about the course of representation,
after which appellant permitted respondent to withdraw from representing him. The district
court also found that appellant did not disput e the total debt for several months, creating
an account stated. The record supports the district court’s determination that nearly all of
the amount claimed to be due on the account relates to services rendered before the parties’
disagreement about appellant’s desire to w ithdraw from the stipul ated settlement. The
record supports the district court’s finding that appellant has no reasonable defense against
the debt.

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Because appellant failed to satisfy all of the Finden elements, the district court did
not abuse its discretion when it denied appellant’s rule 60.02 motion to vacate the default
judgment.
Affirmed.