The Jonathan Association, Plaintiff,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1841

The Jonathan Association, Plaintiff,

and

S3 Holdings, LLC, its assignee,
Appellant,

vs.

Chase Wirth,
Respondent,

John Doe, et al., Defendants.

Filed July 22, 2019
Affirmed
Smith, Tracy M., Judge

Carver County District Court
File No. 10-CV-16-1117

Kelly Griffitts, Griffitts Law Offices, PLLC, Eagan, Minnesota (for appellant)

Matthew R. Doherty, Brutlag, Hartmann & Trucke, P.A., Plymouth, Minnesota (for
respondent)

Considered and decided by Schellhas, Presiding Judge; Smith, T racy M., Judge; and
Kirk, Judge.


 Retired judge of the Minnesota Court of Appeals, serving by app ointment 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
SMITH, TRACY M., Judge
The Jonathan Association, predecessor in interest to appellant S3 Holdings LLC,
won a default judgment in a suit to foreclose a lien on a condo minium unit owned by
respondent Chase Wirth after attempting to serve Wirth by publication under Minn. R. Civ.
P. 4.04(a). The district court subsequently vacated the default judgment as void, finding
that Jonathon did not diligently a ttempt to personally serve or to locate Wirth and
concluding that the affidavit f iled by Jonathan’s attorney did not satisfy the requirements
of rule 4.04(a). S3 appeals, arguing that the district court’s interpretation of Minn. R. Civ.
P. 4.04(a) is erroneous as a matter of law and that the district court’s finding that Jonathan
had not made a diligent search for Wirth is clearly erroneous. We affirm.
FACTS
In 2009, Chase Wirth purchased a condominium that is part of th e Village Grace
Association, to which Wirth has paid association dues. However, Jonathan claims that the
condo is also part of its association. Wirth has never paid association dues to Jonathan.
In July 2016, Jonathan recorded a lien against Wirth’s condo ba sed on the unpaid
dues. In October 2016, Jonathan prepared a summons and complaint against Wirth, seeking
a judgment on the unpaid dues, foreclosure of the lien, an orde r directing sale, and a
deficiency judgment if sale did not satisfy the judgment on the dues. On two days in
October, a process server attempted to serve the summons and co mplaint on Wirth at the
condo. On the first attempt, the server found that the complex was locked and that Wirth
was not listed in the directory that the complex used to let re sidents remotely unlock the
common front door for visitors. The process server thereafter conducted a “skip trace”—a

3
search for public records indicating a person’s address—and found only the condo address
and a telephone number with a North Dakota area code for Wirth. Fi ve da y s l a t er , t he
process server returned to the condo. After failing to contact the property manager, he
called Wirth, received no answer, and did not leave a message. On November 4, the server
swore an affidavit briefly summarizing his attempts to contact Wirth and stating that Wirth
could not be “contacted or found . . . and service could not be made.”
Late in December, Jonathan’s attor ney, Brian Hoelscher, mailed a copy of the
summons and complaint, addressed to Wirth, to the condo. The same day, Hoelscher swore
an affidavit stating that (1) “the subject of the action is real property within the state in or
upon which the Defendants have or claim a lien or interest, or the relief demanded consists
wholly or partly in excluding the Defendants from any such inte rest or lien,” (2) he
believed Wirth was not a resident of Minnesota or could not be found in Minnesota, (3) he
did not know Wirth’s address unless Wirth lived at the condo without his knowledge, and
(4) he had mailed a copy of the summons and complaint to the co ndo. This affidavit was
intended to satisfy Minn. R. Civ. P. 4.04(a) in order to allow service by publication. The
summons was then served by publication, being printed in two lo cal newspapers on the
first, second, and third Thursdays of January 2017.
In March 2017, Jonathan moved for default judgment. It affirmed that it had served
Wirth but had not received an a nswer or any other pleading. The district court ordered
default judgment in favor of Jonathan, granted Jonathan a decre e of foreclosure, and
ordered that the property be sold by the sheriff. In June 2017, Jonathan purchased the condo
at the sheriff’s sale. On Jonathan’s motion, the district court confirmed the sale with a 12-
month redemption period from the date of the order and a zero-dollar deficiency judgment.

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In February 2018, Jonathan sold its interest in the condo to S3 for $8,291.10 by
assigning the sheriff’s certificate of sale to S3. S3 also beca me Jonathan’s assignee in the
underlying foreclosure action against Wirth. In August 2018, the examiner of titles certified
the foreclosure and directed the registrar of titles to issue a new certificate of title in favor
of S3. S3 then received a writ of recovery and order to vacate; it served those documents
on Wirth in August. On Wirth’s motion, the district court vacat ed its writ and order and
scheduled a hearing to determine whether the eviction should proceed.
In September 2018, Wirth moved to vacate the March 2017 default judgment
pursuant to Minn. R. Civ. P. 60.02(d), arguing that the judgmen t w a s v o i d f o r l a c k o f
personal jurisdiction. The district court granted Wirth’s motion, concluding that Jonathan’s
service of process had failed to establish personal jurisdiction over Wirth because Jonathan
did not exercise due diligence in attempting to serve or locate Wirth and because
Hoelscher’s affidavit did not satisfy Minn. R. Civ. P. 4.04(a). It therefore voided the
sheriff’s sale and its confirmation thereof.
S3 appeals, arguing that (1) the district court erred as a matter of law by holding that
Hoelscher’s affidavit did not satisfy Minn. R. Civ. P. 4.04(a), (2) due process does not
require a diligent attempt at personal service, and (3) as a matter of law, Jonathan’s efforts
at personal service satisfied any diligence requirement that does exist. Wirth opposes S3’s
arguments and also contends that, even if this court accepts that Jonathan’s service satisfied
rule 4.04(a), it should affirm the district court’s order vacat ing the default judgment
because the published summons did not include information about alternative dispute
resolution.

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D E C I S I O N
In general, “[t]he decision to v acate judgment under rule 60.02 rests within the
district court’s discretion and will not be reversed absent an abuse of that discretion.” Gams
v. Houghton, 869 N.W.2d 60, 64 (Minn. App. 2015) (quotation omitted), aff’d, 884 N.W.2d
611 (Minn. 2016). “A district court abuses its discretion when it bases its conclusions on
an erroneous interpretation of the applicable law.” Fannie Mae v. Heather Apartments Ltd.
P’ship, 811 N.W.2d 596, 599 (Minn. 2012). However, when a district co urt is asked to
vacate a judgment under rule 60. 02(d) on the grounds that it is void, “[n]o question of
discretion is involved. . . . If a judgment is void, it must be set aside. It has no force and
effect. A void judgment is one where the court lacks jurisdiction . . . over the parties.” Zions
First Nat’l Bank v. World of Fitness, Inc., 280 N.W.2d 22, 25 (Minn. 1979) (first omission
in original) (quoting Lange v. Johnson, 204 N.W.2d 205, 208 (Minn. 1973)). Because the
district court here ruled that th e default judgment was void, t his court reviews that legal
conclusion de novo.
In this case, the district court’s conclusion that the default judgment was void was
based on its conclusion that Jonathan’s attempt to serve Wirth by publication was
ineffective. “Whether service of process was effective, and personal jurisdiction therefore
exists, is a question of law tha t [appellate courts] review[] d e novo.” DeCook v. Olmsted
Medical Center, Inc., 875 N.W.2d 263, 270 (Minn. 2016). But this court reviews the factual
findings challenged by S3 for clear error. See Rasmussen v. Tw o Harbors Fish Co. , 832
N.W.2d 790, 797 (Minn. 2013). A finding of fact is clearly erroneous if the reviewing court
is “left with the definite and firm conviction that a mistake has been made.” Id. (quotation
omitted).

6
Service by publication may establish jurisdiction when one of f ive circumstances
exists, specifically:
(1) When the defendant is a res ident individual domiciliary
having departed from the state with intent to defraud creditors,
or to avoid service, or remains concealed therein with the like
intent;
(2) When the plaintiff has acquired a lien upon property or
credits within the state by attachment or garnishment, and
(A) The defendant is a resident individual who has
departed from the state, or cannot be found therein, or
(B) The defendant is a nonresident individual or a
foreign corporation, partnership or association;

. . . .

(3) When the action is for marriage dissolution or separate
maintenance and the court has ordered service by published
notice;
(4) When the subject of the action is real or personal property
within the state in or upon which the defendant has or claims a
lien or interest, or the relief demanded consists wholly or partly
in excluding the defendant from any such interest or lien;
(5) When the action is to foreclose a mortgage or to enforce a
lien on real estate within the state.

Minn. R. Civ. P. 4.04(a).
To serve a defendant by publication, a plaintiff must both publish the summons and
file an affidavit with the court. Id. The affidavit must state three things: (1) “the existence
of one of the enumerated cases”; (2) “that the affiant believes the defendant is not a resident
of the state or cannot be found therein”; and (3) “either that the affiant 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.” Id. The actual existence of one of the five enumerated
circumstances is a jurisdictional requirement; it is not enough for an affiant to state a belief
that one of the circumstances exists. Shamrock Dev., Inc. v. Smith , 754 N.W.2d 377, 383

7
(Minn. 2008) (“Rule 4.04(a) is not satisfied if the affiant merely affirms that he ‘believes’
that one of the enumerated circumstances exist. The essential jurisdictional facts . . . must
actually exist in order to confer jurisdiction.”).
Here, there is no dispute that the first and third requirements of the affidavit were
met. As to the first requirement, the subject of the action is indisputably real property in
Minnesota to which Wirth had or claimed an interest, meaning that the fourth enumerated
circumstance existed, and the action was to enforce a lien on r eal estate, so the fifth
circumstance also existed. See Minn. R. Civ. P. 4.04(a). As to the third affidavit
requirement, Hoelscher mailed the summons to Wirth at the condo and was unable to find
any other address for him, so that requirement is met as well. See id. The dispute in this
case concerns the second affidavit requirement—“that the affiant believes the defendant is
not a resident of the state or cannot be found therein.” Id.
Actual Fact vs. Belief
S3 argues that the district court erroneously extended Shamrock’ s r u l e t h a t t h e
essential jurisdictional facts must actually exist—not just that the affiant believes them to
exist—to the second affidavit requirement. It contends that the affiant’s stated belief
regarding the defendant’s out-of-state residence or the inabili ty to locate the defendant in
the state satisfies the second requirement even if that belief is mistaken. Wirth, on the other
hand, argues that Shamrock’s rule that the essential jurisdictional facts must actually exist
also applies to the underlying f acts of the second affidavit re quirement. That is, Wirth
argues that the affiant’s belief is not enough—it must actually be the case that the defendant
is not a resident of the state or cannot be found in the state.

8
Wirth’s view of the law is incorrect. The plain language of the rule requires only the
affiant’s belief that the defendant is not in the state or cannot be found therein to satisfy the
second affidavit requirement. Minn. R. Civ. P. 4.04(a). In Shamrock, the relevant
enumerated circumstance was that “the defendant is a resident i ndividual domiciliary
having departed from the state w ith intent to defraud creditors , or to avoid service, or
remains concealed therein with like intent.” Id.; Shamrock, 754 N.W.2d at 384. Under the
particular facts of Shamrock, the essential jurisdictional facts that were required to actually
exist for purposes of the first affidavit requirement happened to overlap with the facts that
the affiant was required to believe for purposes of the second affidavit requirement. Here,
in contrast, the enumerated circumstances relate to the fact that the action was to foreclose
Jonathan’s lien, not whether Wirth was in the state or could be found. Shamrock does not
require that Wirth actually be a nonresident or unable to be found in the state to satisfy the
second requirement.
S3 argues that the district cour t erred by adopting Wirth’s err oneous view of the
law. But the district court did not actually do so. S3 is corre ct that the district court’s
discussion of Shamrock emphasized its language requiring that the essential jurisdictional
facts actually exist. But the district court went on to state t hat, “if [Jonathan] had taken
enough additional steps at service to satisfy the diligence req uirement, publication may
have been the appropriate method of service . . . .” This statement indicates that the district
court did not adopt Wirth’s view that the facts underlying the second affidavit requirement
must actually exist. If the standard of actual existence from Shamrock applied to the second
affidavit requirement, as it does to the first, then no amount of diligence would be sufficient
because the standard under Shamrock is actual fact, not diligence. Thus, the district court

9
did not err, because it did not ho ld that the elements of the s econd affidavit requirement
must actually exist.
Diligence
S3 argues that the district court erred as a matter of law by r equiring a diligent
attempt at personal service. S3’s briefing to this court argues that a diligent effort at
personal service was not required because due process was satis fied when the summons
and complaint were mailed to Wir th’s last-known address. S3’s a rgument, as briefed,
depends on an unstate d proposition: that due diligence is requi red only to satisfy due
process, such that the need for due diligence ends if due process is satisfied by other means.
The cases that establish the requirement of due diligence do not rely on due process
but rather on an obligation that affidavits be made in good faith. In Van Rhee v. Dysert, the
supreme court construed an earlie r version of the rule allowing service by publication,
which was at that time codified in statute1:
We think the statute means that after . . . the proper affidavi t
has been made by plaintiff or his attorney that defendant cannot
be found in the state, the service of summons by publication is
valid and gives jurisdiction, unless it be shown that plaintiff or
his attorney by the use of o rdinary diligence could have
ascertained where defendant could be found.

1 The statute interpreted in Van Rhee was very similar to the current version of the rule.
One section laid out six situations in which service by publication would be effective; they
closely match the enumerated circumstances of the current rule. Compare Minn. Gen. Stat.
§ 7738 (1913) with Minn. R. Civ. P. 4.04(a)(1)-(5 ). The other section specified t he
procedure for serving by publication, which required an affidavit with the same three parts
that are currently required and three weeks’ publication. Compare Minn. Gen. Stat. § 7737
(1913) with Minn. R. Civ. P. 4.04(a). The biggest difference between the t wo is that the
statutory version of the rule required the sheriff of the count y in which the action was
brought to determine that the defendant could not be found in that county. Minn. Gen. Stat.
§ 7737.

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191 N.W. 53, 53-54 (Minn. 1922). The supreme court explained th at the use of ordinary
diligence was required so that “the affidavit can be said to be made in good faith.” Id. at
54. Thus, Van Rhee imposed the requirement of diligence based on its construction of the
statute as requiring good faith when an affidavit states that t he defendant cannot be found
in the state. Subsequent cases rely on Van Rhee without further analysis of or justification
for the requirement. E.g., Shamrock, 754 N.W.2d at 384 n.4; Gill v. Gill, 152 N.W.2d 309,
314 (Minn. 1967); Wiik v. Russell, 218 N.W. 110, 111-12 (Minn. 1928).
During oral argument, S3 further clarified its position, arguing that, even if diligence
is a requirement of the rule, what is required is a diligent se arch for the defendant but not
a diligent attempt to serve the d efendant. Publis hed cases from t h e s u p r e m e c o u r t
universally refer to diligent searches. See, e.g., Shamrock, 754 N.W.2d at 381 (“diligent
effort to locate him”); Gill, 152 N.W.2d at 314 (“due diligence in searching for him”
(quoting Wiik, 218 N.W. at 111)); Van Rhee, 191 N.W. 53 passim (repeatedly using the
phrase “diligent search”); Arnold v. Boggs , 152 N.W. 640, 641 (Minn. 1915) (denying
jurisdiction because the defendant was not found even though a person using “reasonable
diligence would have found” the defendant). Recent unpublished cases of this court have
not always made a distinction between a search and an attempt at service.2
We need not decide whether, in another case, a meaningful disti nction might exist
between a lack of diligence in atte mpting service and a lack of diligence in locating the

2 Two examples are Midland Funding, LLC v. Coyne, A17-0607, 2017 WL 5560065, at *3
(Minn. App. Nov. 20, 2017), and Mowers v. LeCuyer, C6-01-1250, 2002 WL 47060, at *2
(Minn. App. Jan. 15, 2002). In both cases, this court cited Arnold, 152 N.W. at 641—which
denied jurisdiction because of its conclusion that a reasonably diligent effort to find the
defendant would have been successful—but described the rule as requiring that the plaintiff
make a diligent effort to serve the defendant.

11
defendant. Here, it does not. Jonathan had what it thought was Wirth’s address and sought
to locate Wirth and serve him. The district court found both th at Jonathan’s “limited
attempts to personally serve [Wirth] were not diligent” and that Jonathan “did not diligently
attempt to locate [Wirth].” As we discuss next, both findings were supported by the record.
Lack of Diligence
Whether a plaintiff made a diligent effort to locate a defendant is a question of fact.
See, e.g., Duresky v. Hanson, 329 N.W.2d 44, 49 (Minn. 1983) (“Whether the plaintiff has
made a ‘diligent search’ [for pu rposes of a tolling statute] is a fact question . . . .”);
Shamrock Dev., Inc. v. Smith, 737 N.W.2d 372, 380 (Minn. App. 2007) (“Whether a party’s
efforts at service were diligent is a question of fact.” (citing Duresky, 329 N.W.2d at 49)),
rev’d on other grounds , 754 N.W.2d 377, 385 (Minn. 2008). Thus, the district court’s
finding that Jonathan did not make a diligent effort to serve or locate Wirth is reviewed for
clear error. See Gams v. Houghton , 884 N.W.2d 611, 620 (Minn. 2016) (stating that a
district court’s factual findings are reviewed for clear error on appeal from a ruling on a
rule 60.02 motion).
S3 argues that Jonathan satisfied the requirement of diligence, pointing to the steps
that the process server took wh en attempting to serve Wirth: go ing to the condo building
twice, finding it locked both times; looking in the condo direc tory without finding Wirth;
conducting a skip trace; calling Wirth; and trying to contact t he property manager for the
condo building.3

3 During oral argument, counsel f or S3 raised an additional argu ment in support of its
position that the search was clearly diligent, asserting that it was diligent because Jonathan
had found the address where Wirth was residing. But if the search successfully found where
Wirth was residing, then Jonathan’s attorney knew that Wirth wa s in fact in the state and

12
Wirth, on the other hand, points out things that the process se rver failed to do. The
process server did not successfully contact the building manage r, did not attempt service
at other times in case Wirth was not home, did not wait outside the building to try to catch
Wirth coming or going, did not knock on Wirth’s ground-level windows or patio door, did
not try to gain access to the building by contacting another resident, did not call Wirth more
than once, and did not leave a message on Wirth’s phone after Wirth did not answer.
Neither party cites any law defi ning “diligent.” We find guidan ce in two cases. In
Arnold, the supreme court affirmed a district court’s order vacating a default judgment
because there had not been a diligent search. 152 N.W. at 641. In that case, Joseph Vezina,
sued under the last name Visena ux, was not found or personally served; the court stated
that “an officer with a summons directed to Joseph Visenaux wit h reasonable diligence
would have found Joseph Vezina.” Id. Van Rhee, on the other hand, provides an example
of a diligent search. 191 N.W. at 54. There, the plaintiff had sought information on the
defendant’s address from numerous government officials and at l east one relative of the
defendant but did not learn anything. Id. And the defendant’s affidavits stating that he lived
in the state and could have been found did not explain how the plaintiff could have found
him. Id.
Here, unlike the defendant in Van Rhee, Wirth did describe how he could have been
contacted. While some of his suggestions—hiring a private investigator and staking out the
condo—may be beyond the requirements of diligence, others—leaving a message, calling

he did not have the necessary belief to establish jurisdiction through service by publication.
Minn. R. Civ. P. 4.04(a). Thus, if S3’s argument is factually c orrect, there was no
jurisdiction and the district court’s vacation of the default judgment was correct.

13
more than once, or actually contacting the management company—a re eminently
reasonable. If diligence would l ead an officer to find a defend ant despite a seriously
misspelled but homophonous last name, Arnold, 152 N.W. at 641, then calling more than
once, leaving a telephone message, or contacting the entity that controls the common areas
of a condo are minimum steps to satisfy the requirement of diligence. The district court did
not clearly err by finding that Jonathan’s attempt to find and serve Wirth was not
sufficiently diligent to support service by publication.
Because the district court did not err by concluding that service by publication was
ineffective and personal jurisdiction was therefore lacking, it did not err by vacating
Jonathan’s default judgment as void.4
Affirmed.

4 Because we affirm on the ground that the district court did not err in concluding that the
default judgment is void for lack of personal jurisdiction, we d o n o t r e a c h W i r t h ’ s
alternative ground that the summons was defective as a matter o f law because it did not
include information about alternative dispute resolution.