This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-96-1898

The Little Wagon Co., Inc.,

Respondent,

vs.

Richard Welander,

a/k/a Richard C. Kadi,

Appellant.

Filed March 11, 1997

Affirmed

Klaphake, Judge

Hennepin County District Court

File No. 95-9191

John G. Westrick, Scott W. Swanson, Westrick & McDowall-Nix, P.L.L.P., 400 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for Appellant)

John E. Rode, Rode, Lucas & Schellhas, P.L.L.P., Suite 508, Edinborough Corporate Center, 3300 Edinborough Way, Minneapolis, MN 55435 (for Respondent)

Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Mulally, Judge.[*]

U N P U B L I S H E D O P I N I O N

KLAPHAKE, Judge

Appellant judgment debtor Richard Welander claims that respondent judgment creditor, The Little Wagon Co., Inc., in its action to renew the judgment against him, did not properly serve process upon him. Because we conclude that proper service of process by publication was made and that any defects in the summons and complaint did not invalidate service, we affirm.

D E C I S I O N

Welander first claims that service by publication was unwarranted because the evidence does not support the court's finding that he was avoiding service.[1] The weight of evidence does not support this claim. Service of process may be made upon an individual either personally or at the individual's "usual place of abode." Minn. R. Civ. P. 4.03(a). Little Wagon attempted to serve process upon Welander at his residence, and the record includes strong circumstantial evidence that Welander intended to avoid service. Hennepin County Deputy Sheriff Brian Lentz testified that he attempted to serve process on Welander seven to ten times and that "on a number of occasions I heard somebody inside the house, footsteps coming to the door but nobody would answer." He also testified that he left a business card at the home twice, but no one ever contacted him. Private process server Tim Holtan also testified that on two occasions Mrs. Welander attempted to evade service by speeding away from the Welander residence in a car. This evidence supports the trial court's finding that Welander intended to avoid service. See Minn. R. Civ. P. 52.01 (appellate court will not set aside factual findings by trial court unless clearly erroneous).

Welander also attacks the affidavit that provided the basis for service by publication. The applicable rule requires the affidavit to

state the existence of one of the enumerated cases [justifying service by publication], and that affiant believes the defendant is not a resident of the state or cannot be found therein * * *.

Minn. R. Civ. P. 4.04. Little Wagon's affidavit states that Welander "is a resident individual, domiciliary of the state, and remains concealed therein with the intent to avoid service and defraud creditors." We agree with the trial court's conclusion that the affidavit was sufficient to satisfy the rule. See 1 David F. Herr & Roger S. Haydock, Minnesota Practice § 4.17, at 92 (1985) ("The affidavit for service by publication need only include the conclusory statement that one of these fact situations exists; the affidavit need not include all facts--supporting the conclusions.").

Welander further claims that Little Wagon failed to meet the standard of due diligence in attempting to personally serve him before it proceeded with service by publication. See Electro-Measure, Inc. v. Ewald Enters., 398 N.W.2d 85, 88 (Minn. App. 1986) (party may initiate summons by publication "if, after due diligence, the party's whereabouts cannot be ascertained"), review denied (Minn. Mar. 13, 1987). By ruling that Little Wagon had properly served summons by publication, the court implicitly found that Little Wagon had proceeded with due diligence. There is also ample support in the record for a finding of due diligence. Little Wagon made numerous attempts to serve Welander personally at his residence and initiated service by publication on the same day that individual service failed. Although Little Wagon did not attempt to serve Welander at his place of employment, this was reasonable in light of Welander's evasive tactics. Thus, Little Wagon met the due diligence requirement.

Finally, Welander claims that various errors and defects in the summons and complaint invalidated service under rule 4.04. The determination of whether service of process is valid is a question of law. See Blaine v. Anoka-Hennepin Ind. Sch. Dist. No. 11, 498 N.W.2d 309, 313 (Minn. App. 1993), review denied (Minn. June 22, 1993) (interpretation of statutes and rules is legal function). For service by publication, "[d]efects in an immaterial clause cannot destroy the affidavit." Haney v. Haney, 163 Minn. 114, 121, 203 N.W. 614, 616 (1925).

Welander claims that the 1985 judgment role attached to the complaint as Exhibit A was missing from the complaint and that the entire complaint was not filed with the court. The trial court found that the entire complaint, including the exhibit, was mailed to Welander. Thus, the issue was resolved by the court's credibility determination. See Minn. R. Civ. P. 52.01 (requires appellate court to give "due regard" to district court's "opportunity * * * to judge the credibility of the witnesses."). The trial court made no finding on whether the entire complaint was filed with the court because it was not asked to do so. Consequently, it will not be decided by this court. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).

Welander also argues that the language of the summons was fatally flawed. The summons required Welander to answer the complaint "served upon you" rather than the complaint "on file in the * * * court."[2] As Welander was served by publication, only the second choice was appropriate. This is not to say that we find this error dispositive, however. Welander received actual notice of the cause of action because Little Wagon mailed the summons and complaint to Welander. Welander responded to it, indicating that he was not confused by the summons. Considering the summons in its entirety, it properly apprised Welander of Little Wagon's cause of action. See Minn. R. Civ. P. 4.01 (listing essential elements of summons); 1 Herr & Haydock, supra § 4.4, at 39 (purpose of summons is to provide defendant notice of action). The minor defects in the summons did not affect its validity.

Affirmed.

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

[ ]1Service by publication confers jurisdiction on the court when, among other circumstances,

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 * * *.

Minn. R. Civ. P. 4.04(a).

[ ]2Both options are set forth in Form 1 of the Minnesota Rules of Civil Procedure.