This opinion will be unpublished and

may not be cited except as provided by

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




Diane Lynn Bly Gale,



Dennis D. Winge, et al.,


Filed July 6, 1999


Kalitowski, Judge

Ramsey County District Court

File No. C3987376

James T. Hynes, Therese H. McCloughan, Stapleton, Nolan, Hynes & McCloughan P.A., 2300 Firstar Center, 101 East Fifth Street, St. Paul, MN 55101 (for respondent)

Michael W. Coopet, 3585 Lexington Avenue South #155, Arden Hills, MN 55126 (for appellants)

Considered and decided by Kalitowski, Presiding Judge, Huspeni, Judge,[*] and Norton, Judge.[*]



Appellants Dennis D. and Debbie L. Winge challenge the district court's determination that the housing court properly granted respondent Diane Lynn Bly Gale a writ of restitution. We affirm.



Appellants first contend that service of process was defective as to Dennis Winge. We disagree. Because there is no dispute that service was properly made at 230 George Street, the issue is whether this was Mr. Winge's "usual place of abode" under Minn. R. Civ. P. 4.03. Appellants contend this is a question of law that must be reviewed de novo. See Amdahl v. Stonewall Ins. Co., 484 N.W.2d 811, 814 (Minn. App. 1992) ("The determination of whether a summons and complaint is properly served is a jurisdictional question of law."), review denied (Minn. July 16, 1992). But the Amdahl rule applies only in situations where there are no facts in dispute. See Times Square Shopping Center, LLP v. Tobacco City, Inc., 585 N.W.2d 791, 792 (Minn. App. 1998) (stating that where there is no factual dispute, the determination of whether service of process was proper is a question of law), review denied (Minn. Jan. 21, 1999). Because the question of whether 230 George Street was Mr. Winge's usual place of abode is a question of fact, the district court's determination on the matter may not be reversed unless clearly erroneous. Lundgren v. Green, ___ N.W.2d ___, ___, No. C5-98-2118, slip op. at 4 (Minn. App. May 11, 1999).

"A person's usual place of abode is `the place where the defendant is actually living at the time when service is made.'" Peterson v. Eishen, 495 N.W.2d 223, 225 (Minn. App. 1993) (quoting Berryhill v. Sepp, 106 Minn. 458, 459, 119 N.W. 404, 405 (1909)), aff'd, 512 N.W.2d 338 (Minn. 1994). There is a presumption that a husband's usual place of abode is the place where his family resides. Holtberg v. Bommersbach, 236 Minn. 335, 338, 52 N.W.2d 766, 769 (Minn. 1952).

Here, 230 George Street was the residence of Mr. Winge's family and thus there was a presumption that the residence was also Mr. Winge's usual place of abode. While Mr. Winge testified that he moved out of the house in late April of 1998, he offered no other evidence indicating his place of abode had changed. Moreover: (1) the checks Mr. Winge wrote in July listed his address as 230 George Street; and (2) the process server testified that Ms. Winge told him Mr. Winge was not home, but that she would give Mr. Winge the process papers. We conclude the district court's finding that 230 George Street was Mr. Winge's usual place of abode was not clearly erroneous.


Appellants contend that discrepancies in the legal description of the property rendered the notice of cancellation ineffective. We disagree.

"Absent a sufficient showing of prejudice, the Minnesota Supreme Court has determined some discrepancies in a notice of cancellation will not render it fatally defective." Hoffman v. Halter, 417 N.W.2d 747, 750 (Minn. App. 1988), review denied, (Minn. Mar. 18, 1988). Here, appellants do not claim that they were confused as to which property the notice of cancellation referred to, and claim no other prejudice. We conclude that the minor inaccuracies in the legal description do not render the cancellation notice ineffective.


Appellants contend the district court erred in refusing to vacate the default judgment against Ms. Winge. We disagree.

A default judgment may be entered against a party who fails to plead or otherwise defend within the time allowed by law. Minn. R. Civ. P. 55.01. A court may relieve a party from a default judgment for "[m]istake, inadvertence, surprise or excusable neglect." Minn. R. Civ. P. 60.02(a). A defaulting party seeking to set aside a default judgment must show:

(1) a reasonable defense on the merits; (2) a reasonable excuse for the failure or neglect to act; (3) action with due diligence after notice of entry of judgment; and (4) that no substantial prejudice will result to the opponent.

Riemer v. Zahn, 420 N.W.2d 659, 661 (Minn. App. 1988). Application of this test to open default judgments is favored "to further the liberal policy of trying cases on their merits." Id. But the right to be relieved of a default judgment is not absolute. Kosloski v. Jones, 295 Minn. 177, 180, 203 N.W.2d 401, 403 (1973). The decision to vacate a default judgment largely rests within the district court's discretion, and will not be reversed on appeal absent a clear abuse of that discretion. Id.

Here, Ms. Winge has not presented a defense on the merits. She admits she was aware of the notice of cancellation and that instead of taking action to cure the breach of the contact for deed she went camping.

Ms. Winge also lacks a reasonable excuse for her failure to act. While she claims she was unaware of the eviction summons and unlawful detainer complaint, this is not a reasonable excuse where she admits having notice of the cancellation proceeding more than two months prior to the posting of the eviction notice. Because Ms. Winge failed to make a strong showing on these two factors, we conclude the district court did not abuse its discretion by refusing to vacate the default judgment under Minn. R. Civ. P. 60.02(a). See Wiethoff v. Williams, 413 N.W.2d 533, 536 (Minn. App. 1987) (while a weak showing on one factor may be overcome by a strong showing on the other three, "there is no authority by which we can conclude that two weak factors are overcome by two strong factors"). Likewise, the district court properly rejected Ms. Winge's arguments under Minn. R. Civ. P. 60.02(f) because she failed to establish that "the equities weigh heavily in favor of petitioner and clearly require relief be granted to avoid an unconscionable result." Id.


Respondent's attorney testified at the unlawful detainer hearing with respect to a check left in the law firm's mail slot. Appellants argue that testifying with respect to such a "contested" issue is a violation of Minnesota Rule of Professional Conduct 3.7(a), and thus the attorney should have been disqualified from further representation in the case. We disagree.

Rule 3.7(a) only prohibits attorneys from testifying with regard to contested issues. Because appellants do not contest the accuracy or truth of the attorney's testimony, we conclude the district court did not err in rejecting appellants' request for disqualification.


Appellants contend the district court erred by refusing to consider their equitable arguments. We disagree. Because this was an unlawful detainer action, equitable rights were not at issue. See Thomey v. Stewart, 391 N.W.2d 533, 536 (Minn. App. 1986) ("an unlawful detainer action merely determines the right to present possession and does not adjudicate the legal or equitable ownership rights of the parties"). Further, appellants have failed to establish that the equities are in their favor. The record indicates: (1) appellants have been persistently late on payments since the contract for deed was signed in 1996; (2) other cancellation proceedings have been initiated against appellants; and (3) appellants did not make the required payments within the 60-day redemption period. We conclude the district court's alleged failure to address appellants' equitable arguments does not constitute reversible error.


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