Bremer Bank, N.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This opinion will be unpublished and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
A17-1717

Bremer Bank, N.A.,
Respondent,

vs.

Albert B. Beety,
Appellant.

Filed June 4, 2018
Affirmed; motion denied
Kalitowski, Judge*

Washington County District Court
File No. 82-CV-11-417

Garth G. Gavenda, Lindsay W. Cremona, Anastasi Jellum, P.A., Stillwater, Minnesota (for
respondent)

Albert B. Beety, Chanhassen, Minnesota (pro se appellant)

Considered and decided by Jesson, Presiding Judge; Reyes, Judge; and Kalitowski,
Judge.

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

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U N P U B L I S H E D O P I N I O N
KALITOWSKI, Judge
Appellant Albert B. Beety challenges the district court’s dismissal of his claims
against respondent Bremer Bank, N.A. , arising out of default judgments entered in 2010
and 2016, arguing that the district court erred by (1) dismissing his claim for relief from
the default judgments under Minn. R. Civ. P. 60.02 based on his assertion of improper
service by Bremer, and (2) denying his own motion for summary judgment. We affirm.
D E C I S I O N
We review de novo the district court’s order granting Bremer’s motion to dismiss
and denying Beety’s motion for summary judgment. Walsh v. U.S. Bank , N.A ., 851
N.W.2d 598, 606 (Minn. 2014) (motion to dismiss); STAR Ctrs., Inc. v. Faegre & Benson,
L.L.P., 644 N.W.2d 72, 77 (Minn. 2002) (summary judgment). To prevail on appeal, Beety
must show both error and prejudice resulting from the error. Midway Ctr. Assocs. v.
Midway Ctr. Inc. , 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975). “[E]rror without
prejudice is not ground for reversal.” Id. Rather, an error is not grounds for setting aside
a judgment unless “refusal to take such action appears to the court inconsistent wit h
substantial justice.” Minn. R. Civ. P. 61. Courts “at every stage of the proceeding must
disregard any error or defect in the proceeding which does not affect the substantial rights
of the parties.” Id.
Bremer initiated this action to recover amoun ts due on a loan. After numerous
unsuccessful attempts to personally serve Beety, Bremer sought and obtained an order
approving service by publication. Bremer subsequently obtained default judgments against

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Beety in 2010 and 2016. In March 2017, Beety s erved a summons and complaint on
Bremer, asserting two counts, for “Vacate Judgment” and “Statute of Limitations,” and
praying for the relief of vacation of the judgments and dismissal of the underlying claims
as barred by the statute of limitations. Brem er brought a motion to dismiss Beety’s
complaint, and Beety brought a motion for summary judgment. The district court granted
Bremer’s motion and denied Beety’s.
Beety asserts that he brought an independent action to seek vacation of the
judgments, and that the district court erred by applying res judicata principles to dismiss
his claims. We initially note that, although rule 60.02 does not limit the power of a court
to entertain an independent action for relief from judgment, Beety did not bring an
independent action. Rather, he filed an unauthorized complaint in an existing action where
he was the defendant and where a final judgment had already been entered. See Minn. R.
Civ. P. 7.01 (limiting allowed pleadings to complaint, answer, reply to count erclaim, and
answer to cross-claim); cf. Bode v. Minn. Dept. of Nat. Res., 612 N.W.2d 862, 866 (Minn.
2000) (holding that the district court erred by granting a procedurally improper rule
60.02(d) motion that was asserted in independent action). Accordingly, even if the district
court erred by applying res judicata to dismiss Beety’s claims, we discern no prejudicial
error.
Even if we were to conclude that the district court should have construed Beety’s
unauthorized complaint as a motion for relief under Minn. R. Civ. P. 60.02(d), we would
conclude that Beety was not entitled to relief for at least two reasons.

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First, any request for relief under rule 60.02(d) with res pect to the first judgment
would have been untimely. Minn. R. Civ. P. 60.02 requires that motions for relief from
judgment be brought within a reasonable time, which our supreme court has held should
be determined “by considering all attendant circumstances such as: intervening rights, loss
of proof by or prejudice to the adverse party, the commanding equities of the case, the
general desirability that judgments be final and other relevant factors.” Bode, 612 N.W.2d
at 870 (quotation omitted). The first judgment was entered against Beety in April 2011.
Beety had actual notice that Bremer was attempting to collect on the judgment as early as
July 2013, when Bremer was able to personally serve him with an order to show cause.
Bremer proceeded in relianc e on the judgment as valid in attempting to collect a debt.
Beety took no action to challenge the judgment until March 2017, when he sought to vacate
the judgment and have Bremer’s claims dismissed as barred by the statute of limitations.
Beety erroneously asserts that a judgment may be challenged on jurisdictional grounds at
any time. In Bode, the supreme court departed from the rule, applied in cases cited by
Beety, that a judgment may be challenged at any time on the grounds of lack of subject -
matter-jurisdiction. Id. at 869-70. The “commanding equities of the case,” including the
prejudice that Bremer would suffer were the judgment reopened, compel the conclusion
that the 2017 request to vacate “does not fall within the reasonable time limits of the rule.”
Id. at 870.
Second, Beety has not presented a basis on which the district court would have
been required to grant relief under rule 60.02(d). Beety argues that service by publication
should not have been allowed because Bremer did not prove that Beety was evading service

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and the district court did not make an express finding to that effect. See Minn. R. Civ. P.
4.04(a)(1) (providing that service by publication may be sufficient to confer jurisdiction
when defendant is concealed within state with intent to defraud creditors or avoid service).
Beety’s argument is based on the incorrect premise that his state of mind must be directly
proved.
“Intent . . . is often proved circumstantially by looking at a person’s conduct and
inferring from that conduct a person’s mental state.” In re Conduct of Karasov , 805
N.W.2d 255, 266 n.7 (Minn. 2011). Although no witness for Bremer could testify directly
as to Beety’s state of mind, Bremer submitted a process server’s affidavit listing service
attempts on 12 separate days, including days when the process server saw Beety’s vehicle
or Beety himself at the residence. The process server’s affidavit was sufficient to support
a finding that Beety was evading service, and the district court implicitly made that finding
in allowing service by publication. See Umphlett v. Comm’ r of Pub. Safety , 533 N.W.2d
636, 639 (Minn. App. 1995) (stating that implicit findings may be derived from the district
court’s final resolution of a matter), review denied (Minn. Aug. 30, 1995).
In seeking to vacate the judgments, Beety did not dispute the contents of the
process server’s affidavit. Rather, Beety relied on that affidavit, but argued that it was
insufficient to prove, and that the district court did not find, that Beety was avoiding
service. Beety offered no more than conclusory, self -serving assertions in his complaint
that he “had not remained concealed in the state with the intention [to] defraud creditors or
avoid service as [he] had no such intent and was not concealing himself at all.”

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Moreover, the evidence submitted by Bremer in opposition to Beety’s motion for
summary judgment supports the finding that Beety was evading service. A second affidavit
from the process server stated his many years o f experience with process serving and
explained that Beety had been able to enter his house through his attached garage and avoid
service by refusing to answer the door. The process server also testified that, when he was
finally able to personally serve an order to show cause on Beety at a restaurant in July
2013, Beety “admitted to the fact that he had to make my job difficult and make me earn
my money.” The process server concluded: “Based on this admission, it was my
understanding that Beety was deliberately concealing himself in Minnesota with the intent
to defraud creditors and/or avoid service.”
For all of the foregoing reasons, we cannot conclude that the district court
prejudicially erred by dismissing Beety’s c omplaint and denying his motion f or summary
judgment.
Finally, after the completion of briefing, Beety filed a motion to strike parts of
Bremer’s brief, arguing for redaction of (1) references to settlement discussions, which
Beety asserts are barred by Minn. R. Evid. 408, and (2) assert ions that Beety avoided
service. We deny the motion.
Affirmed; motion denied.