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IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

KOUNTZE V. DOMINA LAW GROUP

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

EDWARD KOUNTZE, APPELLEE,

V.

DOMINA LAW GROUP, PC, LLO, APPELLANT.

DOMINA LAW GROUP, PC, LLO, APPELLANT,

V.

EDWARD KOUNTZE, APPELLEE.

Filed May 16, 2017. Nos. A-16-033, A-16-272.

Appeals from the District Court for Washington County: JOHN E. SAMSON, Judge.

Affirmed.

Brian E. Jorde, of Domina Law Group, P.C., L.L.O., for appellant.

Larry E. Welch, Jr., and Damien J. Wright, of Welch Law Firm, P.C., and Bruce R. Meckler 

and Jeffrey B. Greenspan, of Cozen O’Connor, for appellee.

INBODY, RIEDMANN, and ARTERBURN, Judges.

RIEDMANN, Judge.

INTRODUCTION

Domina Law Group, PC, LLO (Domina), appeals from two consolidated cases. In a 2015 

matter, the district court for Washington County vacated the entry of a default judgment in favor 

of Domina against Edward Kountze for failure to properly serve Kountze. Subsequently, the 

district court dismissed the underlying 2013 matter for lack of service. Domina appeals the district 
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court’s order vacating the default judgment and dismissing its original case against Kountze. For 

the reasons that follow, we affirm.

BACKGROUND

Domina filed a claim against Kountze in September 2013 to recover fees and expenses for 

professional services that Domina had performed on behalf of Kountze in previous years. Domina 

filed a praecipe for summons for 12 different possible addresses for Kountze, including several in 

California, Colorado, Nebraska, and one each in Michigan and Florida. Domina obtained these 

addresses by performing a Westlaw People Search for Kountze, which produced a list of 15 

possible addresses. Twelve of the addresses appeared to be residential and 3 were post office 

boxes, including a post office box in Boulder, Colorado. A copy of the summons and complaint 

was sent to each of the 12 residential addresses via certified mail.

Most relevant to this action, Domina sent a copy of the complaint and summons via 

certified mail to a residential address on Portland Place in Boulder, Colorado. Domina further 

confirmed this address by obtaining a Vehicle Master Record from the Colorado Department of 

Revenue for a 1992 Honda. This vehicle was registered under the names of Kountze, as “Owner 1,”

and a third-party, as “Owner 2.” This record listed the Portland Place address as the legal address 

for the vehicle; however, it also listed a post office box in Boulder as the title and mail addresses. 

The record also indicated that the vehicle’s registration was current through February 1, 2016.

Throughout the course of its representation of Kountze, Domina had, at Kountze’s request, 

sent billing invoices to a post office box in Boulder. This same post office box appeared in 

Domina’s Westlaw People Search and as the title and mail addresses on the Vehicle Master 

Record. However, Domina did not attempt to send a copy of the summons and complaint to that 

address. Domina later informed the district court that the post office box address never seemed to 

work for Kountze, as it had sent invoices to that address for years and the invoices were never 

paid. Domina stated that it had no confidence that Kountze would actually receive any mail sent 

to that address, and further, its understanding was that service could not be perfected to a post 

office box.

Domina filed a signed proof of service from the Portland Place address in September 2013. 

After that, Kountze took no action in the matter. Domina then filed a motion for default judgment 

in April 2014, which was granted in June in the amount of $103,548.43 for unpaid professional 

legal fees and $82.50 in court costs.

Kountze alleges that he did not learn about the 2013 action and subsequent default 

judgment entered against him until June 2015. The record shows no evidence that Domina had 

attempted to enforce the default judgment after it was entered. Kountze then filed, in a separate 

action, a complaint asking the court to vacate the default judgment pursuant to Neb. Rev. Stat. 

§ 25-2002 (Reissue 2016). In support of his motion, Kountze submitted an affidavit in which he 

swore that he did not sign the proof of service from the Portland Place address and that he had no 

knowledge of who did. After a hearing, the district court vacated the default judgment, finding that 

the service of process in the 2013 matter was not reasonably calculated to apprise Kountze of the 

pendency of the action against him and to afford him the opportunity to be heard. Specifically, the 

court found that Domina’s course of dealings for 5 or 6 years was to send Kountze’s bills to the 

Boulder post office box address. It found that the post office box address appeared in the Westlaw 
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search and in the information provided by the Colorado Department of Revenue as an active 

address. The district court noted that it could not read the signature on the proof of service and 

therefore did not know who signed it. The court held that Domina’s attempt to serve Kountze had 

not been reasonably calculated to apprise him of the pending action and that Domina should have 

attempted service at the post office box.

After the district court ordered that the default judgment should be vacated, Kountze filed 

a motion to dismiss the original 2013 matter for failure to serve him within 6 months of the date 

the suit was filed. At a hearing, the district court found that, pursuant to Neb. Rev. Stat. § 25-217 

(Reissue 2016), it was required to dismiss the case for lack of proper service. Domina now appeals 

from the dismissal and the order vacating the default judgment.

ASSIGNMENTS OF ERROR

Domina assigns that the district court erred in (1) holding that service by certified mail to 

Kountze in the 2013 action at the Portland Place address was not reasonably calculated to apprise 

Kountze of the litigation, and in vacating the default judgment, and (2) in dismissing the case in 

the 2013 action for failure to serve Kountze within 6 months pursuant to § 25-217.

STANDARD OF REVIEW

In reviewing a trial court’s action in vacating a default judgment, an appellate court will 

uphold and affirm the trial court’s action in the absence of an abuse of discretion. Carrel v. Serco 

Inc., 291 Neb. 61, 864 N.W.2d 236 (2015). An abuse of discretion exists when the reasons or 

rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and 

denying a just result. Hartley v. Metropolitan Utilities District of Omaha, 294 Neb. 870, 885 

N.W.2d 675 (2016). On appeal, a much stronger showing is required to substantiate an abuse of 

discretion when the judgment is vacated than when it is not. Carrel v. Serco Inc., supra.

An appellate court resolves questions of law and issues of statutory interpretation de novo. 

State on behalf of Ja’Quezz G. v. Teablo P., 293 Neb. 337, 878 N.W.2d 358 (2016).

ANALYSIS

SERVICE OF PROCESS

Domina argues that the district court erred in holding that its service via certified mail to 

the Portland Place address was not reasonably calculated to apprise Kountze of the pending 

litigation, and subsequently erred in vacating the entry of default judgment. It claims that 

Nebraska’s service of process statutes are to be liberally construed and that there is no requirement 

that the defendant is the one who is actually served. Instead, Domina argues that because it relied 

upon an address that Kountze represented to a state agency as being his current legal address, the 

court should have found that its efforts were reasonably calculated to apprise Kountze of the 

pending action.

Nebraska law allows parties to be served via certified mail. Neb. Rev. Stat. § 25-508.01 

(Supp. 2014). Pursuant to Neb. Rev. Stat. § 25-505.01(1)(c) (Supp. 2014), a plaintiff in an action 

may serve a defendant by certified mail service which shall be made “within 10 days of issuance, 

sending the summons to the defendant by certified mail with a return receipt requested showing to 
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whom and where delivered and the date of delivery,” and then “filing with the court proof of 

service with the signed receipt attached.”

In Doe v. Board of Regents, 280 Neb. 492, 788 N.W.2d 264 (2010), the Nebraska Supreme 

Court held that § 25-505.01 does not require service to be sent to a defendant’s residence nor does 

it restrict delivery only to the addressee. However, it found that due process requires notice to be 

reasonably calculated to apprise the defendant of the pendency of the action and to afford him the 

opportunity to present his objections. Id. Indeed, “[t]he means employed must be such as one 

desirous of actually informing the absentee might reasonably adopt to accomplish it.” State v. 

Teablo P., supra. The court later clarified that while plaintiffs may choose service by certified 

mail, they bear the risk that such method does not meet the standard articulated in Doe. Anthony 

K. v. State, 289 Neb. 523, 855 N.W.2d 802 (2014). The determination of whether service was 

reasonably calculated to apprise the defendant is an issue of fact. Doe v. Board of Regents, supra.

In its argument, Domina draws parallels to several other recent cases. In State on behalf of 

Ja’Quezz G. v. Teablo P., supra, the plaintiff had twice attempted to personally serve the defendant 

before it attempted service using certified mail. The State used the address that Teablo had 

provided to his probation officer to attempt service via certified mail and Teablo’s grandmother 

signed for the notice. Id. The Nebraska Supreme Court held that service was proper even though 

Teablo claimed that he was homeless at the time and had no knowledge of the pending action. Id.

In Capital One Bank (USA), N.A. v. Lehmann, 23 Neb. App. 292, 869 N.W.2d 917 (2015), 

the plaintiff attempted to serve Lehmann notice of a pending case it had filed against her by 

certified mail. The plaintiff sent notice to the address that Lehmann had provided to plaintiff for 

the purpose of maintaining her account, and that notice was signed for by Lehmann’s estranged 

husband. Id. When Lehmann took no action, the plaintiff moved for, and was granted, default 

judgment. Id. Lehmann later claimed that she and her husband were separated at the time of service 

and that she had moved out of state. She further claimed that her husband never told her about the 

notice and she petitioned the court to vacate the default judgment. This court upheld the entry of 

default judgment, finding that the plaintiff’s reliance on an address Lehmann provided to it and 

the signing of the notice by Lehmann’s legal husband constituted efforts that were reasonably 

calculated to apprise Lehmann of the action. Id. Domina claims that Kountze is no different than 

the estranged spouse in Capital One or the defendant in Teablo P. whose summons had been sent 

to the address he provided to his probation officer.

However, Teablo P. and Capital One are distinguishable from this case because it is clear 

that in those cases the proof of service was signed by a member of the defendant’s 

family -- Teablo’s grandmother and Lehmann’s husband. Here, there is no evidence as to who 

signed the proof of service. While we recognize that § 25-505.01(1)(c) does not require that the 

certified mail be signed for by any particular person, due process requires notice to be reasonably 

calculated to apprise the defendant of the pending action. Kountze stated in his affidavit that he 

did not sign the proof of service nor did he have any knowledge as to who did. The district court 

noted that while it could not read the signature, it did not appear to be Kountze’s name. The 

appellate courts in both Teablo P. and Capital One specifically stated that their findings were based 

in part on the fact that a member of the defendants’ family had signed the proof of service. Under 

such circumstances, it is practical to assume that the defendants would be apprised of the notice 

by the individuals who signed for the certified mail.
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Teablo P. and Capital One are also distinguishable based upon the fact that the addresses 

to which the summonses were sent were addresses provided to the plaintiffs by the defendants. In 

Teablo P., the putative father provided the address to his probation officer, an employee of the 

State, and the State used this address for its certified mail. The plaintiff in Capital One used the 

address provided by the defendant to the bank to maintain her credit card account with it. Using 

these addresses was reasonably calculated to apprise the defendants of the pending actions. In the 

present case, however, the address to which Domina sent the certified mail was not one which had 

been provided to it by Kountze. To the contrary, the one address which Kountze had provided to 

Domina was one of three addresses to which it chose not to send the summons.

Domina also argues that the district court erred in focusing on whether it had attempted to 

serve Kountze at the “best address.” It claims that under the district court’s analysis, the only 

address where it could have attempted to serve Kountze that would have been considered 

reasonably calculated to apprise Kountze of the matter was the Boulder post office box, upon 

which it did not believe it could properly perfect service. While we agree with Domina that there 

is no “best address” standard, we do not find its argument to be persuasive. A plaintiff’s knowledge 

of whether there is a particular address or addresses at which a defendant can likely be reached is 

a relevant consideration in determining whether efforts to serve the defendant were reasonably 

calculated to inform him of the pending litigation.

Here, Domina sent invoices to Kountze via his Boulder post office box over the course of 

approximately 6 years prior to filing the 2013 matter. When Domina conducted its Westlaw People 

Search, the post office box was identified as a possible address for Kountze. Additionally, the 

Vehicle Master Record that Domina obtained from the Colorado Department of Revenue listed the 

post office box as the title and mailing address for the vehicle that was registered in Kountze’s 

name. These factors, taken together, suggest that Kountze’s post office box was still an active 

address at which he could be served. While Domina argues that it had no reason to believe that 

Kountze would receive any mail sent to that address on the basis that he had not paid the invoices 

sent there over the years, there is no evidence in the record to indicate that Kountze was not 

receiving such invoices, even if they were not subsequently paid.

Furthermore, we find nothing that prohibits the use of a post office box to serve a summons 

and complaint via certified mail. Section 25-505.01(1)(c) allows a plaintiff to serve a defendant by 

sending the summons to the defendant by certified mail with a return receipt requested showing to 

whom and where delivered and the date thereof. It does not require service at the defendant’s 

residence. Doe v. Board of Regents, supra. In County of Hitchcock v. Barger, 275 Neb. 872, 750 

N.W.2d 357 (2008), the Nebraska Supreme Court applied the due process standard to find that 

sending notice to a county treasurer at a post office box was reasonably calculated to apprise the 

county that a bankruptcy stay had terminated. In the absence of any case law to the contrary, and 

particularly in light of Domina’s practice of sending invoices to Kountze’s post office box, we find 

that there was nothing prohibiting Domina from attempting service via certified mail to Kountze’s 

post office box.

Based on Domina’s history of communicating with Kountze via mail sent to his post office 

box, coupled with the verification from its Westlaw search and its inquiries with the Colorado 

Department of Revenue, Domina had reason to believe that the post office box was an active 

address for Kountze at which service could be attained. While we do not find any requirement for 
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a plaintiff to serve a “best address,” here we find no error in the district court’s finding that 

Domina’s service was not reasonably calculated to apprise Kountze of the pending litigation and 

no abuse of discretion in vacating the entry of default judgment.

DISMISSAL

Domina claims that the district court compounded its error in vacating the entry of default

judgment by subsequently dismissing the underlying case. Domina argues that if the district court 

had found that its service of process to the Portland Place address was reasonably calculated to 

apprise Kountze of the litigation, then the court would have been prevented from vacating 

judgment and dismissing the matter.

Kountze’s motion to dismiss the original 2013 case was made pursuant to § 25-217, which 

states that an “action shall stand dismissed without prejudice as to any defendant not served within 

6 months from the date the complaint was filed.” The language of § 25-217 is self-executing and 

mandatory. Dillion v. Mabbutt, 265 Neb. 814, 660 N.W.2d 477 (2003). After an action has been 

dismissed by operation of law under §25-217, there is no longer an action pending and the district 

court has no jurisdiction to make further orders except to formalize the dismissal. Id.

In the present case, the district court found that § 25-217 operated as a matter of law when 

service was not perfected within 6 months and that the court’s duty to dismiss the case for lack of 

service was administerial. Domina’s complaint was filed in September 2013 and the district court 

vacated its entry of default judgment in December 2015. According to Kountze’s affidavit, he did 

not receive the summons and complaint and had no actual notice of the original action until June 

2015. At the time the default judgment was vacated, well over 6 months had passed since Domina 

had filed its complaint. Pursuant to the district court’s finding that Domina had not properly served 

Kountze with notice, § 25-217 operated as a matter of law and the original action was dismissed. 

The district court correctly found that it had jurisdiction over the matter only so as to formalize the 

dismissal.

CONCLUSION

Following our review of the record, we affirm the district court’s orders.

AFFIRMED.