Butler & Allen P.A., Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0718

Butler & Allen P.A.,
Respondent,

vs.

Ronald William Kammueller,
Appellant.

Filed February 1, 2021
Affirmed
Slieter, Judge

Ramsey County District Court
File No. 62-CV-19-2248

Thurl M. Quigley, Sarah B. Quigley, Quigley Law Firm, Minneapolis, Minnesota; and

James T. Martin, Gislason, Martin, Varp ness & Janes, PA, Edina, Minnesota (for
respondent)

Gregory J. Hudalla, St. Paul, Minnesota (for appellant)

Considered and decided by Cochran, Presiding Judge; Jesson, Judge; and Slieter,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
In this appeal from the dist rict court’s grant of summary judgment to respondent
Butler & Allen, P.A. and renewal of a 2009 judgment against appellant Ronald William
Kammueller, Kammueller asserts the district court lacked personal jurisdiction over him

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because Butler & Allen did not properly effect service by publication. Because Butler &
Allen complied with the procedural requirements for service by publication, we affirm.
FACTS
Kammueller retained Butler & Allen1 in 2005 and incurred $25,680.46 in legal fees.
Butler & Allen sued Kammueller for unpaid fees and the district court entered a civil
judgment for that amount in favor of Butler & Allen against Kammueller on May, 12, 2009.
Kammueller made no payment on the judgm ent and Butler & Allen elected to renew
its judgment by commencing a new civil action against Kammueller before the ten-year
statute of limitations to enfo rce the judgment expired. A ccording to a certificate of
unserved process, a Ramsey County deputy sheriff unsuccessfully attempted to personally
serve the summons and complaint on Kammueller at his address on Bayard Avenue in St.
Paul four times between February 26, 2019 and March 4, 2019. On March 6, 2019, Butler
& Allen again attempted personal service at the Bayard address through a process server
who was also unsuccessful.
Having failed to personally serve Kammu eller, Butler & Allen pursued service by
publication pursuant to Minn. R. Civ. P. 4.04 (a). On April 3, 2019, Butler & Allen filed
with the district court the summons, complaint, and two se parate affidavits supporting
service by publication.
Kammueller answered the complaint on May 13, 2019, asserting that the action
failed for lack of personal jurisdiction. Kammueller moved to dismiss, and Butler & Allen

1 Butler & Allen was known as Butler Huson & Allen at the time it obt ained the original
judgment.

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moved for summary judgment. The district court issu ed a written order denying
Kammueller’s motion to dismiss, granti ng Butler & Allen summary judgment, and
renewing the 2009 judgment. Kammueller appeals.
DECISION
Kammueller argues personal jurisdiction ov er him is lacking because Butler &
Allen’s affidavit in support of service by publication did not state that he was a domiciliary
of Minnesota or include a mailing attestation as required by Minn. R. Civ. P. 4.04. He also
argues Butler & Allen failed to make a diligent effort to personally serve him.2 We disagree
with each assertion.
“Whether service of process was effectiv e, and personal jurisdiction therefore
exists, is a question of law that [a ppellate courts] review de novo.” See Shamrock Dev.,
Inc. v. Smith, 754 N.W.2d 377, 382 (Minn. 2008). “[I]n conducting this review, [appellate
courts] must apply the facts as found by the district court unless those factual findings are
clearly erroneous.” See id. Noncompliance with Minn. R. Civ. P. 4.04 renders service by
publication ineffective. O’Sell v. Peterson, 595 N.W.2d 870, 872 (Minn. App. 1999).
Minnesota caselaw provides that “[o]nce the plaintiff submits evidence of service,
a defendant who challenges the sufficiency of service of process has the burden of showing
that the service was improper.” Smith, 754 N.W.2d at 384. Smith further states that “in
cases involving the sufficiency of service, we have held that the defendant bears the burden
of proof.” Id. n.4. With this burden of proof in mind, we assess Kammueller’s arguments.

2 Kammueller does not contest the merits of the summary judgment.

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Rule 4.04 dictates that service by pub lication “shall” be su fficient to confer
jurisdiction in five particular situations. See Minn. R. Civ. P. 4.04(a)(1)-(5). The parties
agree, as do we, that the first situation app lies here and allows for service by publication
when “the defendant is a resident individua l domiciliary having departed from the state
with intent to defraud creditors, or to avoid service, or remains concealed therein with the
like intent.” Minn. R. Civ. P. 4.04(a)(1) (emphasis added).
Rule 4.04 requires that an affidavit “state the existence of one of the enumerated
cases” and state that the affiant “has mailed a copy of the summons to the defendant at the
defendant’s place of residence or that such re sidence is not known to the affiant.” Minn.
R. Civ. P. 4.04(a). Finally, a party must ma ke a diligent effort to personally serve the
defendant before attempting service by publication. See Arnold v. Boggs, 152 N.W. 640,
641 (1915) (denying jurisdiction because plaintiff failed to search diligently for defendant).
I. The attorney affidavi t complied with rule 4.04’s requirement of establishing
that Kammueller is a domiciliary of Minnesota.

Butler & Allen submitted two affidavits in support of publication, one titled
“Affidavit of Service by Mail” and a second titled “Affidavit in Support of Service by
Publication.” This second affi davit stated “[t]he Defendant is a resident individual who
cannot be found in state, or remains concealed therein with the like intent to avoid service,
for perfecting personal or substitute service at his abode.” Kammueller argues that because
this statement omits the phrase that he is a “resident individual domiciliary,” an “essential
jurisdictional fact” is missing and, therefore, th e affidavit does not satisfy rule 4.04. It is

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true that the word “domiciliary” is not present in the affidavit though Kammueller has not
established this renders the service improper.
The affidavit establishes that the Ba yard Avenue location is Kammueller’s
residential address and has been his residentia l address for several ye ars, and that he was
personally served at this address in the past. The affidavit also establishes that Kammueller
indicated the Bayard Avenue location was hi s residential address in 2018 in financial
declaration forms related to the original judgment. Kammueller submitted no evidence to
suggest that he was not domiciled at the Bayard Avenue location or that service would have
been appropriate at a different address.
Kammueller asserts that rule 4.04 requires th at the affidavit establish an intent to
remain in Minnesota “indefinitely.” No such requirement is f ound in the text of this rule
and Kammueller cites no legal authority for th is proposition. Because we conclude the
affidavit complies with rule 4.04’s domicilia ry requirement and because Kammueller did
not meet his burden of showing he was not do miciled at the Bayard Avenue address, we
conclude the domiciliary requirement was satisfied.
II. The affidavit contained a mailing attestation as required by rule 4.04.
Kammueller also argues service was ineffective because the affidavit did not include
a mailing attestation. The record compels our disagreement.
The “Affidavit of Service by Mail” filed with the district court plainly states that
Butler & Allen “served the Summons and Compla int, Affidavit in Support of Service by
Publication, Civil Cover Sheet, and Certif icate of Representation on Ronald William
Kammueller, Jr., defendant in this action, by mailing to him/her/them a copy thereof” at

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the Bayard Avenue address. It also notes that this was Kammueller’s “last known address.”
We are satisfied that this co mplies with rule 4.04’s requireme nt that the affiant mail “a
copy of the summons to the defendant at the defendant’s place of residence.” See Minn. R.
Civ. P. 4.04(a). That the ma iling affidavit was separate from the affidavit in support of
service does not invalidate the service.
III. The district court did not clearly err by finding that Butler & Allen made
diligent efforts to personally serve Kammueller.

Whether efforts to personally serve a defend ant are diligent is a question of fact.
Duresky v. Hanson, 329 N.W.2d 44, 49 (Minn. 1983). Ap pellate courts review a district
court’s findings of fact for clear error. Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96,
101 (Minn. 1999).
The affidavit in support of publication states a Ramsey County deputy sheriff
attempted personal service of the summons and complaint on Kammueller at the Bayard
Avenue address in 2019 and a certificate of nonservice is included in the record.
Kammueller argues the deputy sheriff’s cer tificate of nonservice is inadmissible
hearsay. See Minn. R. Evid. 802 (stating that h earsay is generally not admissible).
“[Appellate courts] review a district court’s evidentiary rulings for an abuse of discretion.”
See State v. Hallmark, 927 N.W.2d 281, 291 (Minn. 2019) (quotation omitted). “A district
court abuses its discretion when its decision is based on an erroneous view of the law or is
against logic and the f acts in the record.” Id. (quotation omitted). The district court
determined that this certificate of nonservi ce was admissible eviden ce pursuant to the
public-records exception to hearsay. Minn. R. Evid. 803(8). This rule provides that

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“[u]nless the sources of information or other circumstances indicate lack of
trustworthiness, records, reports, statements, or data compilations, in any form, of public
offices or agencies” are not ex cluded by the hearsay rule. Id. We agree that the deputy
sheriff’s certificate of nonservice is admissible pursuant to this exception.
The affidavit in support of publication al so states that Butle r & Allen attempted
personal service through a process server, and an affidavit of this nonservice is included in
the record. Kammueller believes the affida vit of nonservice is based on inadmissible
hearsay because the affiant states that anot her employee is the person who attempted the
service. We are not persuaded by this argume nt. The rules of evidence provide that “[a]
memorandum, report, record, or data compilation, in any form, of acts, events, conditions,
opinions, or diagnoses, made at or near the time by, or from information transmitted by, a
person with knowledge” are not excluded by th e hearsay rule “unless the source of
information or the method or circumstan ces of preparation indicate lack of
trustworthiness.” Minn. R. Ev id. 803(6). The affiant states that “agents in his employ”
attempted to personally serve Kammueller “numerous” times in March 2019. We are
satisfied that this meets the criteria of an admissible business record according to
rule 803(6), and that the district court did not abuse its discretion in considering it.
In summary, Butler & Allen’s affidavit establishes that Kammueller is a domiciliary
of Minnesota and includes a mailing attestation, and the record reflects that Butler & Allen

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made diligent efforts to pers onally serve Kammueller. Beca use all three requirements of
rule 4.04 are met, we discern no error in the district court’s conclusion that the requirements
for personal jurisdiction of Kammueller were present.
Affirmed.