This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




In Re Revocable Trust of Selmer Halla.

Filed June 1, 1999


Kalitowski, Judge

Hennepin County District Court

File No. C3961

Robert A. Nicklaus, Nicklaus Law Firm, 103 West Second Street, P.O. Box 116, Chaska, MN 55318 (for appellant David Halla)

Dennis P. Moriarty, Jaspers, Moriarty and Walburg, P.A., 206 Scott Street, Shakopee, MN 55379 (for respondent Connie Schmid, conservator of the estate of LaVina Halla)

Joseph T. Dixon, Jr., Neil M. Klienbenstein, Henson & Efron, P.A., 1200 Title Insurance Building, 400 Second Avenue South, Minneapolis, MN 55401 (for respondent Donald Halla)

Randy F. Boggio, Garvey & Mathison, P.A., 9995 Lyndale Avenue South, Bloomington, MN 55420 (for respondent Karin Brandys, attorney ad litem for LaVina Halla)

Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Davies, Judge.



After a petition to the district court by Donald Halla, co-trustee of the revocable trust of Selmer Halla, the court assumed jurisdiction over the trust and issued an order relating to it. Appellant David Halla, another co-trustee, contends the district court: (1) lacked both personal and in rem jurisdiction; (2) did not have the authority to decide matters relating to the trust; and (3) abused its discretion by not declining jurisdiction under the doctrine of forum non conveniens. We affirm.


Questions of law are subject to de novo review. Wilkie v. Allied Van Lines, Inc., 398 N.W.2d 607, 610 (Minn. App. 1986). But findings of fact will not be set aside unless clearly erroneous. Minn. R. Civ. P. 52.01. This court will not reverse such findings unless, upon reviewing all the evidence, the court is left with a "definite and firm conviction that a mistake has been made." In re Guardianship of Dawson, 502 N.W.2d 65, 68 (Minn. App. 1993) (citation omitted), review denied (Minn. Aug. 16, 1993).


Appellant first contends that because the service on him was defective, the court lacked personal jurisdiction. Questions of civil procedure are questions of law. Wilkie, 398 N.W.2d at 610. In particular, the question of whether a summons and complaint was properly served is a jurisdictional question of law. Amdahl v. Stonewall Ins. Co., 484 N.W.2d 811, 814 (Minn. App. 1992), review denied (Minn. July 16, 1992). In Stonewall Ins. Co. v. Horak, 325 N.W.2d 134, 136 (Minn. 1982), the Minnesota Supreme Court determined that service by certified mail was sufficient where the defendant was in the military and stationed in Germany. In reaching this conclusion, the Stonewall court stated that "actual, timely notice should be equivalent to personal service" in situations where there is a nonresident defendant, where there is no alternative means of service, and where the defendant is not prejudiced. Id. at 136.

Here, appellant received notice of the summons and complaint by first-class mail. Appellant contends he was prejudiced because he did not receive notice by certified mail. We disagree. Stonewall does not require service by certified mail, and appellant has failed to establish that he was prejudiced by being served by first-class as opposed to certified mail. Appellant also argues the district court erred by concluding there were no feasible alternatives to service of process by mail. But evidence in the record indicates that it was difficult to serve appellant because he lived on a 600-acre ranch in a remote area of Texas. We conclude the district court's findings concerning alternative means of service are not clearly erroneous or against the facts in the record.

Appellant contends he received the summons in the mail in his role as a beneficiary of the estate, but not in his role as a trustee, and thus, the court did not have personal jurisdiction. Minnesota's notice requirement is rooted in actual, timely notice, not technicalities. See Stonewall, 325 N.W.2d at 136 (policies behind notice requirement show that actual, timely notice is sufficient where defendant is in military and located in Germany); see also Minn. R. Civ. P. 4.03(a) (allows service on another person at the defendant's usual place of abode if that person is suitable). Whether received as a beneficiary or as a trustee, the notice appellant received was actual and timely and therefore complies with Minnesota notice requirements.

Appellant contends the district court erred by hearing this matter because appellant will be forced "to come to Minnesota to litigate fiduciary issues when he has already commenced an action in Florida to determine those same issues." Because appellant did not commence his Florida action until after he received notice of the Minnesota action, we conclude this argument lacks merit.

Appellant argues he is not required to defend the Minnesota action because the Minnesota petition only requested "instructions" and did not request a permanent solution to the impasse between the trustees. The district court order requires the trustees to pay for the support of LaVina Halla from her husband's trust. Thus, the district court order appropriately resolves the issue of LaVina's support.

Because the district court had personal jurisdiction over appellant and the co-trustee, Donald Halla, we reject appellant's arguments concerning in rem jurisdiction. See In re Trust of Florance, 360 N.W.2d 626, 629 (Minn. 1985) (holding that where two of three trustees were Minnesota residents court has in rem jurisdiction over the trust); and 5A William F. Fratcher, Scott on Trusts § 567 (4th ed. 1989) ("[a] court * * * may make a valid decree if it has jurisdiction over the parties or the trust property").

Appellant contends Minn. Stat. § 501B.17, entitled "Venue," deprived the district court of jurisdiction. We disagree. Venue is not jurisdictional but refers only to the location where a court with jurisdiction should hear a case. State v. Smith, 421 N.W.2d 315, 320 (Minn. 1988).

Appellant contends the amended statutory scheme regarding trusts, when read together with the previous language, shows the district court lacked jurisdiction. We disagree. The amended statute, Minn. Stat. § 501B.24 (1998), states that "[t]his chapter does not limit or abridge the power or jurisdiction of the district court over trusts and trustees." Moreover, the changes in the trust statutes are purely procedural in nature and are not a limit on the court's jurisdiction in administering trusts. In re Trust of Bush, 249 Minn. 36, 50, 81 N.W.2d 615, 624 (1957).


Citing Kirsch v. Kahn, 276 Minn. 294, 149 N.W.2d 676 (1967), appellant contends the district court did not have authority to issue instructions to the trustees because Article X of the trust instrument vests the powers of administration of the trust in the trustees and not in the courts. We disagree. As noted by the district court, courts have the authority to issue orders concerning the administration of a trust where the trustees are clearly abusing their powers. This principle is recognized by the Kirsch court when it states that

[a] trustee * * * derives his authority from the settlor and in the absence of statute * * * or conduct amounting to bad faith or abuse of discretion, he is not normally subject to judicial control.

Id. at 299, 149 N.W.2d at 680. Moreover, Minn. Stat. § 501B.16, subd. 23 (1998), states that

[a] trustee * * * may petition the district court for an order:

(23) to instruct the trustee, beneficiaries, and any other interested parties in any matter relating to the administration of the trust and the discharge of the trustee's duties.

We conclude the district court acted within its authority in instructing appellant to take all actions necessary to appropriately comply with Article VII of the trust instrument.


Appellant contends the district court abused its discretion by not declining jurisdiction under the doctrine of forum non conveniens. We disagree.

In cases where it fairly appears from the practicalities of trial that it would be more appropriate to try a case in another forum, the doctrine of forum non conveniens permits a court to decline jurisdiction. Trust of Florance, 360 N.W.2d at 630. Application of this doctrine is ordinarily in the discretion of the trial court. Id. at 632. Appellate courts will not reverse the decision of the trial court on forum non conveniens questions absent an abuse of that discretion. Bergquist v. Medtronic, Inc., 379 N.W.2d 508, 511-12 (Minn. 1986).

There is a strong presumption in favor of the plaintiff's choice of forum. Bergquist, 379 N.W.2d at 511. Considerations in forum non conveniens questions include all the "practical problems that make trial of a case easy, expeditious and inexpensive." Florance, 360 N.W.2d at 630 (citation omitted). Particular factors in determining the proper forum for the administration of a trust include:

(1) The provisions of the trust instrument; (2) the residences of the beneficiaries, the settlor, and the trustee; (3) the location of the trust res; (4) the place of the trust business; and (5) the personal jurisdiction acquired over the parties interested in the trust through personal service.

Doerr v. Warner, 247 Minn. 98, 107, 76 N.W.2d 505, 513 (1956). Finally, some courts consider which state's law will govern the case. See Trust of Florance, 360 N.W.2d at 631; Hague v. Allstate Ins. Co., 289 N.W.2d 43, 46 (1978), aff'd, 449 U.S. 302, 101 S. Ct. 633 (1981). But the mere fact that another state's law will control is not dispositive. Trust of Florance, 360 N.W.2d at 631; Hague, 289 N.W.2d at 46.

Appellant contends the district court abused its discretion by determining Minnesota was the proper forum for this matter because: (1) the trust instrument provides that Florida law applies to questions regarding administration of the trust; (2) the trust assets are located in Florida; (3) some of the litigants reside in Texas; and (4) a Florida court asserted jurisdiction before the Minnesota district court issued its decision.

Under Florida law, when the trust instrument is unambiguous the settlor's intent as expressed in the trust instrument controls. Ludwig v. AmSouth Bank of Florida, 686 So.2d 1373, 1376 (Fla. App. 2 Dist. 1997); Knauer v. Barnett, 360 So.2d 399, 405-06 (Fla. 1978). The trust instrument at issue unambiguously requires the trustees to pay trust income from the residuary trust for the benefit of LaVina Halla. Thus, application of Florida law is not complicated, and the requirement that Florida law be applied is not dispositive as to the appropriate forum.

While the trust assets are held by a Florida holding company, the situs of the assets is not significant because the assets consist of intangibles not easily susceptible to a designation in any one location. Moreover, there is evidence in the record that the trustees can make decisions from Minnesota regarding the buying and selling of trust assets.

The fact that some of the litigants reside in Texas is also not a significant factor because: (1) whether this matter is litigated in Florida or Minnesota, the Texas litigants will be forced to travel; and (2) the Minnesota litigants would be inconvenienced by having this matter heard in Florida. Further, the fact that appellant commenced an action in Florida before the Minnesota court issued its order does not relate to convenience of the parties. Appellant cites no authority for the proposition that a court must surrender jurisdiction because another court subsequently asserts jurisdiction.

This matter was properly heard in Minnesota because one of the trustees is a Minnesota resident and the other trustee is a former Minnesota resident who owns property here. Further, one of the conservators of LaVina Halla's estate is a Minnesota resident and both LaVina and Selmer Halla had extensive ties to Minnesota. Also, previous court actions with respect to the Halla trusts have been litigated in Minnesota. We conclude appellant has failed to overcome the strong presumption that the claimant's choice of forum should prevail. The district court did not abuse its discretion by refusing to decline jurisdiction on the basis of forum non conveniens.

Finally, we do not address appellant's contention that the district court erred in its application of Florida law because the issue was not raised before the district court. See Thiele v. Stich, 425 N.W.2d 580, 582 (1988) (holding that appellate courts may not consider matters not produced and received in evidence below).