This opinion will be unpublished and

may not be cited except as provided by

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




In the Matter of the Application of

John G. Perrizo and Carmen L. Perrizo,

as joint tenants

To Register the Title to Certain Land.

Filed October 6, 1998


Shumaker, Judge

Hennepin County District Court

File No. 20072

Leander G. Lippert, Lippert Law Offices, P.A., Suite 2400, One Financial Plaza, 120 South Sixth Street, Minneapolis, MN 55402 (for appellants Perrizo)

Bradley N. Beisel, Scholle, Beisel & Metcalf, Ltd., 430 Pillsbury Center, 200 South Sixth Street, Minneapolis, MN 55402 (for respondent Bauer)

Considered and decided by Crippen, Presiding Judge, Klaphake, Judge, and Shumaker, Judge.



Appellants John and Carmen Perrizo appeal from summary judgment in a Torrens proceeding awarding title to real estate to respondent Walter F. Bauer, arguing that the notice of lis pendens in a prior quiet title action, to which appellants were not parties and from which respondent claims title, was invalid for lack of proper service of the summons on appellants' grantor. We affirm because appellants' challenge constitutes an impermissible collateral attack on a final judgment.


In February 1992, respondent's construction company and Transtar, Inc., a company owned by Thomas J. Gambucci, formed a partnership named Hawk High Ridge Partners to develop Lot 5, Block 1, Hawk High Ridge except the west 56' thereof, and other real estate. Respondent owned this parcel and he conveyed it to the partnership to be included in the development plan.

Without respondent's knowledge or consent, in December 1993 Thomas J. Gambucci executed a deed on behalf of the partnership conveying the Hawk High Ridge parcel to his father, Joseph Gambucci, Sr.

On October 3, 1994, without respondent's knowledge or consent, Thomas J. Gambucci signed a purchase agreement on behalf of Transtar, Inc., for the sale of the Hawk High Ridge parcel to appellants.

Respondent commenced a quiet title action in October 1994, seeking, among other relief, the restoration of his title to the Hawk High Ridge parcel. On October 7, 1994, he recorded a notice of lis pendens against the parcel. By October 13, 1994, he had served copies of the summons on the partnership, Transtar, Inc., and Thomas J. Gambucci. Respondent served Joseph Gambucci, Sr., by publication on November 4, 11 and 18, 1994.

Joseph Gambucci, Sr., executed a deed dated October 24, 1994, which conveyed the Hawk High Ridge parcel to appellants. Appellants recorded the deed on November 3, 1994. This was the first public record of their interest in the parcel.

None of the defendants in respondent's lawsuit answered. On December 29, 1994, the district court awarded default judgment to respondent, restoring to him the title to the Hawk High Ridge parcel on the ground that the conveyance of that property to Joseph Gambucci, Sr., had been fraudulent. In its findings, the district court stated that Joseph Gambucci, Sr., had been served by publication in accordance with the applicable rule. The court entered judgment on January 3, 1995. Neither the defendants nor appellants ever moved to vacate the default judgment or to reopen the action.

On October 9, 1995, appellants filed an application to register title to the Hawk High Ridge parcel. Respondent answered, asserting a claim of title to the parcel based on the prior default judgment, and then moved for summary judgment.

Granting partial summary judgment to respondent, the district court ruled that appellants took their interest in the Hawk High Ridge parcel subject to the October 7, 1994, notice of lis pendens. The court ruled that Joseph Gambucci, Sr., had been timely served in the original lawsuit and declined to reconsider the original court's finding that service had been accomplished by publication in accordance with the governing rule. Finally, the court ruled that the lis pendens in the original action became effective when the action was commenced within 90 days of the filing of the complaint irrespective of whether or not all of the defendants had been served within that time period. This appeal followed.


On appeal from summary judgment, this court determines whether there are any genuine issues of material fact and whether the district court erred in its application of the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). This court need not, however, defer to the district court's decisions regarding questions of law. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

Appellants contend that the notice of lis pendens filed October 7, 1994, in respondent's lawsuit was ineffective as to Joseph Gambucci, Sr., and as to appellants as his successors in title, because respondent failed properly to serve Joseph Gambucci, Sr., with the summons within the time required by the lis pendens law. Since the district court found in the original action that valid service by publication had been accomplished as to Joseph Gambucci, Sr., and ordered the entry of judgment in part on that finding, appellants now necessarily challenge that finding and judgment. Respondent argues that such a challenge constitutes an impermissible collateral attack on the judgment.

Minn. Stat. § 557.02 (1996) permits the filing of a notice of lis pendens in actions involving or affecting any interest in, lien upon, or title to real estate. The lis pendens is notice to all the world that a lawsuit is pending that might affect ownership in or encumbrances against real property. See Marr v. Bradley, 239 Minn. 503, 510, 59 N.W.2d 331, 335 (1953) (one who purchases property after notice of properly filed lis pendens takes subject to final disposition of cause); Trask v. Bodson, 141 Minn. 114, 117, 169 N.W. 489, 490 (1918) (sole function of lis pendens is to give constructive notice to all the world of the rights and equities of the party filing the notice).

The notice of lis pendens may be filed with the complaint and before the commencement of the action, but

[t]he filing of such lis pendens at the time of filing the complaint and before the commencement of the action shall have no force, effect, or validity against the premises described in the lis pendens, unless the filing of the complaint is followed by the service of the summons in the action within 90 days after the filing of the complaint therein.

Minn. Stat. § 557.02.

Appellants contend that the summons was not served on Joseph Gambucci, Sr., within the 90-day limit because the affidavit supporting service by publication was invalid on its face. The affidavit recites that Joseph Gambucci, Sr., could not be found at the address he gave to the county recorder and that he is not listed in either the St. Paul or the Minneapolis directory. Appellants argue that a proper affidavit has to recite that the defendant cannot be found in the state and that the affiant has mailed a copy of the summons to the defendant's residence or that such residence is unknown. Minn. R. Civ. P. 4.04. Appellants also assert that had respondent exercised the due diligence required by law he would have located Joseph Gambucci, Sr., at his residence in Grand Rapids, Minnesota. See Electro-Measure, Inc. v. Ewald Enterprises, 398 N.W.2d 85, 88 (Minn. App. 1986) (a court may obtain jurisdiction over a party through published summons if, after due diligence, the party's whereabouts cannot be ascertained), review denied (Minn. Mar. 13, 1987). For these reasons, appellants contend that the default judgment in the original action awarding title of the Hawk High Ridge parcel to respondent was invalid.

The issue is controlled by the rule prohibiting collateral attacks on judgments. This court acknowledged settled, longstanding law regarding the finality of judgments:

[P]ublic policy favors the finality of judgments and the ability of parties to rely on court orders. Thus, Minnesota law does not permit the collateral attack on a judgment valid on its face.

Nussbaumer v. Fetrow, 556 N.W.2d 595, 599 (Minn. App. 1996), review denied (Minn. Feb. 26, 1997) (citations omitted).

In Dean v. Rees, 208 Minn. 38, 42, 292 N.W. 765, 767 (1940), the plaintiff commenced two actions to quiet title to real estate that had previously been registered in defendant, contending that he should have been included in the registration proceedings. Affirming the trial court's dismissal of the actions, the supreme court noted that:

Thus it appears on the face of the registration judgment roll that all known persons and persons in possession were duly served and that notice of publication was duly given. * * * The judgment on its face shows no right, title or interest in the premises to be in plaintiff and no possession of the property by him.

Id. (Emphasis added.)

The supreme court then stated the applicable rule:

[A] judgment which on its face discloses no lack of jurisdiction is not subject to collateral attack. In Henry v. White, supra, the court said: "If the want of jurisdiction due to the failure to serve known claimants appears affirmatively from the judgment roll itself, the judgment is void as against such claimants and may be attacked collaterally."

Dean, 208 Minn. at 41, 292 N.W. at 767.

The court explained that where "the want of jurisdiction does not appear from the judgment roll itself *** the decree is not subject to collateral attack." Id. See also Jones v. Wellcome, 141 Minn. 352, 355, 170 N.W. 224, 226 (1919) (newly acquired evidence would merely show that the court did not acquire jurisdiction over all the parties - a matter not appearing affirmatively on the face of the judgment - and would constitute an impermissible collateral attack on the judgment).

Here the district court in the original action expressly found that "Joseph Gambucci, Sr., was served by publication pursuant to Minn. R. Civ. P. 4.04." The judgment, therefore, on its face affirmatively shows valid service and jurisdiction over Joseph Gambucci, Sr. Any challenge to that finding is a collateral attack on the judgment and is prohibited under Minnesota law.

Because we hold that appellants' challenge is improper, we need not address the issue appellants have raised as to the interpretation of the 90-day time limit in Minn. Stat. § 557.02.