This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (201 4 ). STATE OF MINNESOTA IN COURT OF APPEALS A14
- 0473 Ronald Hagle, et al., Appellants,

vs. The Bank of New York Mellon, as Trustee of the Benefit of CW MBS Inc., et al.,

Respondents, Ryan S. Luscombe, et al., Defendants. Filed February 17, 2015 Affirmed in part, reversed in part, and remanded

Johnson , Judge Chisago County District Court File No. 13

- CV

- 12

- 1126 Jeramie Richard Steinert, Steinert P.A., Minneapolis, Minnesota (for appellants) Mark G. Schroeder, Claire V.J. Joseph, Briggs and Morgan P.A., Minneapolis, Minnesota (for respondents) Considered and decided by Johnson , Presiding Judge; Worke , Judge; and Reyes , Judge

. U N P U B L I S H E D O P I N I O N JOHNSON , Judge Mortgage Electronic Registration Systems, Inc. (MERS) , held a mortgage that encumbered a residence occupied by Ronald and Tara Hagle . A loan secured by the2

mortgage was in default. MERS foreclosed on the mortgage, purchased the property at a sheriff’s sale, and sold the property to The Bank of New York Mell on (BNY Mellon)

. BNY Mellon evict ed the Hagles from the residence

. The Hagles then commenced this action against BNY Mellon, MERS, and three other defendants to obtain declaratory relief, damages, and other relief. The district court entered judgment for BNY Mellon and MERS after granting in part the ir motion to dismiss and later granting their motion for summary judgment on the remaining claims

. On appeal, t he Hagles challenge the district court’s rulings on three of their claims against BNY Mellon and MERS

. We affirm in part, reverse in part , and remand. FACTS
T he Hagles commenced this action against BNY Mellon and MERS in December 2012 . The action is based on an eight

- count complaint , which also alleges claims a gainst three other defendants: Ryan S. Luscombe, Ryan Financial Corp., and Luscombe, Inc. This appeal is limited to only three of the Hagles’ claims , and only to the extent that those claims relate to BNY Mellon and MERS : count 4, which seeks a declarator y judgment establishing all parties’ respective property rights in the H a g l es’ former residence ; count 6, which alleges a claim of slander of title against BNY Mellon and MERS ; and count 8, which alleges a claim against BNY Mellon for the return of unspecified personal property

. The real property at issue is a single

- family residence in the city of Forest Lake. The Hagles purchased the property in 2002 by a contract for deed. T he Hagles allege that, between 2005 and 2008 , they were the victims of an equity

- stripping scheme that3

was orchestrated and executed by Luscombe and his affiliated companies. Although the complaint identifies Luscombe and his affiliated companies as named defendants, the Hagles never have served the summ ons and complaint on Luscombe or his companies. The Hagles do not allege that BNY M ellon or MERS were complicit in Luscombe’s equity

- stripping scheme

. The equity

- stripping scheme alleged in the complaint is, in short, as follows: Luscombe, Inc. , solici ted t he Hagles in 2005 by offer ing to serve as their broker for a refinancing loan . T he Hagles decided to borrow money to pay off the ir contract for deed. In February 2005 , t he Hagles borrowed $392,000 from Delta Funding Corp. and executed a mortgage in favor of MERS. The Hagles believed that Luscombe , acting as their agent, would apply most of the loan proceeds to their contract for deed , would keep approximately $57, 000 in escrow , and would use the funds in escrow to mak e monthly payments on the loan. But, according to the complaint, Luscombe did not make payments on the loan and used the funds for unauthorized purposes. When the loan was in default, Luscombe persuaded the Hagles to convey the property to him and promised to repay the outstanding loan and to allow the Hagles to continue to live on the property

. In December 2006, t he Hagles deed ed the property t o Luscombe

. Soon thereafter , Luscombe took out two loans from Summit Mortgage Corp. in the amounts of $440,000 and $55,000 , paid off the outst anding loans, and executed two new mortgages on the property in favor of MERS. Luscombe later deed ed the property to a third party , Anthony Bachmeier , who recorded the deed in August 2007 . Bachmeier took out two loans totaling $560,000 from Countrywide Home Loans, Inc

. , paid off the outstanding4

loans, and executed two new mortgages in favor of MERS. The loans were brokered by Luscombe. In 2008, after Bachmeier’s loans fell into default, MERS commenced foreclosure proceedings

. In June 2008, MERS purcha sed the property at a sheriff ’s sale and conveyed the property to BNY Mellon

. In March 2009, BNY Mellon commenced an eviction action against the Hagles, who still were living on the property. I n April 2009, BNY Mellon and the Hagles stipulated to a stay o f the eviction case . In June 2012, BNY Mellon commenced a second eviction action, which prompted the Chisago County District Court to issue an e viction summons. In July 2012, t he district court entered judgment and issued a writ of recovery , and t he Chisago County Sheriff’s Office executed the writ of recovery and enforced the judgment by lockout. Five months later, the Hagles commenced this action. In May 2013 , BNY Mellon and MERS moved to dismiss counts 3, 4 , 6 , and 8

. See Minn. R. Civ. P. 12.02 (e) . In July 2013 , t he district court granted the motion in part , denied it in part, and dismissed
count s 6 and 8. In October 2013, BNY Mellon and MERS moved for summary judgment

on all remaining claims

. See Minn. R. Civ. P. 56. In January 2014, the di strict court granted the motion , and t he district court administrator entered judgment in favor of BNY Mellon and MERS

. The Hagles appeal. D E C I S I O N
A complaint “ shall contain a short and plain statement of the claim showing that the pleader is entitled to relief.” Minn. R. Civ. P. 8.01. A district court may dismiss a pleading for “failure to state a claim upon which relief can be granted.” Minn. R. Civ. P.5

12.0 2(e). “ A claim is sufficient against a motion to dismiss for failure to state a claim if it is possible on any evidence which might be produced, consistent with the pleader’s theory, to grant the relief demanded.” Walsh v. U.S. Bank, N.A. , 851 N.W.2d 598 , 603 (Minn. 2014). This court applies a de novo standard of review to the question “whether the complaint sets forth a legally sufficient claim for relief.” Bodah v. Lakeville Motor Express, Inc. , 663 N.W.2d 550, 553 (Minn. 2003). In reviewing a ruling on a motion to dismiss pursuant to rule 12.02(e), we consider “only the facts alleged in the complaint, accepting those facts as true and must construe all reasonable inferences in favor of the nonmoving party.” Hebert v. City of Fifty Lakes , 744 N.W.2d 226, 229 (Minn. 2008) (quotation omitted)

. A district court must grant a motion for summary judgment if the evidence demonstrates “ that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law. ” Minn. R. Civ. P. 56.03. A genuine issue of material fact exists if a rational trier of fact, considering the record as a whole, could find for the non

- moving party. Frieler v. Carlson Mktg. Grp., Inc. , 751 N.W.2d 558, 564 (Minn. 2008)

. This court applie s a de novo standard of review to the district court’ s legal conclusions on summary judgment and views the evidence in the light most favorable to the non

- moving party. RAM Mut. Ins. Co. v. Rohde , 820 N.W.2d 1, 6 (Minn. 2012) ; Day Masonry v. Independent S ch. Dist. 347 , 781 N.W.2d 321, 325 (Minn. 2010)

.6 I. Count 6: Slander of Title The Hagles first argue that the district c ourt erred by granting BNY Mellon ’s and MERS’s motion to dismiss with respect to count 6 , in which the Hagles allege a claim of slander of title. The elements of a slander

- of

- title claim are: (1) That there was a false statement concerning the real property owned by the plaintiff; (2) That the false statement was published to others; (3) That the false statement was published ma liciously; (4) That the publication of the false statement concerning title to the property caused the plaintiff pecuniary loss in the form of special damages. Paidar v. Hughes , 615 N.W.2d 276, 279

- 80 (Minn. 2000). In this context, a false statement incl udes the filing of an instrument that is known to be inoperative. Id. “The element of malice requires a reckless disregard concerning the truth or falsity of a matter despite a high degree of awareness of probable falsity or entertaining doubts as to its truth.” Brickner v. One Land Dev. Co. , 742 N.W.2d 706, 711

- 12 (Minn. App. 2007) (quotat ions and alterations omitted) , review denied (Minn. Mar. 18, 2008)

. In this case, the Hagles allege that MERS committed the tort of slander of title by publish ing the notice of foreclosure sale and that BNY Mellon committed the tort by ratif ying MERS’s actions in foreclosing on the mortgage and by recording the warranty deed that MERS had conveyed to BNY Mellon

. T he district court granted BNY Mellon ’s and MERS’s mo tion to dismiss count 6 for only one reason: that the Hagles did not sufficiently plead malice. The district court reasoned : “Plaintiffs state that MERS and [ BNY Mellon ] acted with malice but there are no allegations supporting these7

assertions. Legal c onclusions in the complaint are not binding, and a plaintiff must provide more than label s and conclusions.” On appeal, t he Hagles contend that the district court erred by reasoning that the complaint did not sufficient ly allege malice. In paragraph 15 0 of t he complaint , the Hagles allege that MERS committed certain acts “despite knowing the instrument s w ere inoperative, or in reckless disregard concerning the truth or falsity of the matters contained in the foregoing instrument s despite a high degree o f awareness of probable falsity or entertaining doubts as to their truth.” In paragraph 151 of the complaint, the Hagles used substantially similar language with respect to BNY Mellon

. Respondents are correct that t he Hagles did not use the word s “malice ” or “maliciously” in their allegations. But the words used in paragraph s 150 and 151 nonetheless express the

essence of the legal definition of malice , which is “ a reckless disregard concerning the truth or falsity of a matter despite a high degree of awareness of probable falsity or entertaining doubts as to its truth.” Id. (quotations and alterations omitted). In light of the lenient notice

- pleading standard s i n the rules of civil procedure , see Minn. R. Civ. P. 8.01, the Hagl es sufficiently pleaded the existence of malice. See Walsh , 851 N.W.2d at 603

. Thus, the district court erred by granting BNY Mellon ’s and MERS’s motion to dismiss with respect to count 6.8 II. Count 8 : Return of Personal Property The Hagles next argue that the district c ourt erred by granting BNY Mellon ’s motion to dismiss with respect to count 8, in which they allege a claim for the return of personal property that was in the home when they were lock ed out

. The district court resolved BNY Mellon ’s motion to dismiss with respect to count 8 by ruling that the claim is barred by the doctrine of res judicata because the claim was resolved in the second eviction case. T he Hagles contend that the district court erred in two ways: first, by consider ing matters that were not included in the complaint and,

s econd, by finding that each requirement of the res judicata doctrine is satisfied. The Hagles’ first contention is without merit because the issue of res judicata may be asserted and resolved o n a motion to dismiss pursuant to rule 12. See Walsh , 851 N.W.2d at 602 ; Hauschildt v. Beckingham , 6 86 N.W.2d 829, 840 (Minn. 2004); Northern States Power
Co. v. F ranklin , 265 Minn. 391, 394, 122 N.W.2d 26 , 29 (1963); Mitchell v. City of St. Paul , 228 Minn. 64, 73, 36 N.W.2d 132, 137 (1949)

. Thus, we focus on the Hagle’s second contention. The doctrine of res judicata , also known as claim preclusion, pre vents a party from pursuing an action commenced after the completion of a prior action if “‘(1) the earlier claim involved the same set of factual circumstances; (2) the earlier claim involved the same parties or their privi ti es; (3) there was a final judgment on the merits; (4) the estopped party had a full and fair opportunity to litigate the matter. ’” Brown

Wilbert, Inc. v. Copeland Buhl & Co. , 732 N.W.2d 209, 220 (Minn. 2007) (quoting Hauschildt , 686 N.W.2d at 840) ; see also R ucker v. Schmidt , 794 N.W.2d 114, 1229

(Minn. 2011). “Res judicata applies equally to claims actually litigated and to claims that could have been litigated in the earlier action.” Brown

- Wilbert , 732 N.W.2d at 220

. This court applies a de novo standard of review to a district court’s app lication of res judicata

. Schober v. Comm issioner of Revenue , 853 N.W.2d 102, 111 (Minn. 2013). We focus our analysis on the third element of the res judicata doctrine , which requires a final judgment on the merits. See Brown

- Wilbert , 732 N.W.2d at 220

. The Hagles contend that there was no final judgment on the merits resolving their claim for the return of their personal property because the district court in the second eviction case expressly refrained from deciding that issue. The Hagles point to the district court’s November 5, 2012, order in the eviction case, in which the district court stated, “Any personal property remaining on the premises must be handled in accordance with Minn. Stat. § 504B.365, subd. 3 and 4.” That statute contains extensive provisions concerning the removal and storage of personal property, see Minn. Stat. § 504B.365, subd. 3 (2014), and further provides that the district court presiding over an eviction action “shall retain jurisdiction in matters relating to removal of per sonal property under this section,” id. , subd. 4. The November 5, 2012, order indicates that the district court presiding over the second eviction case did not resolv e any issues concerning the Hagles’ personal property but, rather, deferr ed action on tha t issue to allow for the additional proceedings that are contemplated by the eviction statute. W hen a particular issue is “withheld from consideration of the court, either by stipulation of the parties or otherwise, it is not adjudicated, and a judgment e ntered on other issues will not act as a bar to another action on the issues so withdrawn.” Smith v. Smith , 235 Minn. 412, 418, 51 N.W.2d 276, 279

-10

80 (1952). Because the district court presiding over the second eviction case expressly refrained from deci ding issue s related to the Hagles’ personal property, th e district court did not enter a final judgment on the merits of the Hagles’ claim for the return of their personal property. Accordingly, the third element of the res judicata doctrine is not satisfied. Thus, the district court erred by granting BNY Mellon ’s motion to dismiss with respect to count 8 on the basis of res judicata

.

III. Count 4: Request for Declaratory Relief The Hagles last argue that the district court erred by granting BNY Mellon ’s and MERS’s motion for summary judgment with r espect to count 4, in which the Hagles seek a multi

- faceted declaration concerning the property rights of all named parties. In count 4, the Hagles request that the district court “resol ve and determine .

. . the Defendants’ adverse interests in the Property and the rights of the parties, respectively.”
S pecifically, the Hagles seek a declaration that (1) they “are the fee titleholders of the property”; (2) they are entitled to possessio n of the premises and their personal property; (3) “the deed to Luscombe is void” or, in the alternative, is an equitable mortgage; ( 4 ) the mortgage executed by Bachmeier cannot be recorded; ( 5 ) the deed from the Hagles to Luscombe is void and unenforceab le; ( 6 ) all instruments recorded by the defendants after the deed from the Hagles to Luscombe “ be stricken from the tract index of the Chisago County Recorder ” ; and ( 7 ) the deed from the Hagles to Luscombe is not entitled to be recorded.11

In their motion for summary judgment, BNY Mellon and MERS argued that the district court should dismiss count 4 because the Hagles failed to join Luscombe, an indispensable party. The district court agreed and granted the motion with respect to count 4 on the ground that the Hagles had failed to join all necessary and indispensable parties. T he district court reasoned that, without Luscombe’s participation in the case, complete relief cannot be accorded among those already parties because the validity of the deed that the Hagles conveyed to Luscombe is central to the resolution of the Hagle’s request for declaratory relief. On appeal, the Hagles contend that Luscombe is not an indispensable party because he has conveyed a ll of his interest s in the property to others

. The issue is governed by two rule s of civil procedure:

A person who is subject to service of process shall be joined as a party in the action if (a) in the person’s absence complete relief cannot be accorded among those already parties .

. . . If the person has not been so joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an i nvoluntary plaintiff. Minn. R. Civ. P. 19.01.

If a person as described in Rule 19.01 cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, th e absent person being thus regarded as indispensable. The factors to be considered by the court include: (a) to what extent a judgment rendered in the person’s absence might be prejudicial to the person or those already parties;12 (b) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (c) whether a judgment rendered in the person’s absence will be adequate; and (d) whether the plaintiff will have an adequat e remedy if the action is dismissed for nonjoinder. Minn. R. Civ. P. 19.0 2

. In analyzing a question of joinder, a district court first should ask whether a person not yet served is a necessary party who “ shall be joined” i f feasible

. See Minn. R. Civ. P. 19.01. If the first question is answered in the affirmative, but the person cannot be made a party, the court next must ask a second question, whether the action should proceed without the absent person or whether the action should be dismissed because the absent person is “indispensable

. ” See Minn. R. Civ. P. 19.02. “An indispensable party is a party without whom the action could not proceed in equity and good conscience.” Hoyt Props

. , Inc. v. Prod. Res. Grp., L.L.C. , 716 N.W.2d 366, 377 (Minn. App. 2006) (quotation omitted), aff’ d , 736 N.W.2d 313 (Minn. 2007)

. This court applies an abuse

of

- discretion standard of review to a district court’s application of rules 19.01 and 19.02

. Id. With respect to the first question, t he district court reasoned t hat Luscombe, Ryan Financial Corp., and Luscombe, Inc. , a re necessary parties under rule 19.01 because the district court could not grant relief without determining Luscombe’s interests in the property and without determining whether the transactions betwe en Luscombe and the13

Hagles were void and unenforceable. The Hagles’ compound request for declaratory relief directly implicates Luscombe’s interests in the property from which the Hagles were evicted. Thus, the district court did not abuse its discretion b y ruling that the Luscombe defendants are necessary part ies who shall be joined if feasible

. With respect to the second question, t he district court reason ed that the Luscombe defendants should be deemed indispensable, primarily because the Hagles had fail ed to

serve process on the Luscombe defendants despite having a prior case dismissed for the
very same reason . The district court’s reason for deeming the Luscombe defendants indispensable is based on considerations of “equity” and “good conscience.” See H oyt Props

. , 716 N.W.2d at 377. The Hagles’ failure to serve the Luscombe defendants despite having named them as defendants is a proper consideration and supports the district court’s decision to deem them indispensable. Thus , the district court did not abuse its disc retion by ruling that the Luscombe defendants are indispensable parties whose absence should cause the dismissal of the Hagles’ claim.
T he Hagles also contend that , even if the Luscombe defendants are indispensable, the district court erred by not ordering that they be joined before dismissing the Hagles’ claims

. The Hagles’ contention is based on the second sentence of rule 19.01, which provides that , i f a necessary person has not been joined, “the court shall order that the person be made a party.” Minn. R. Civ. P. 19.01

. In response, BNY Mellon and MERS
note that the district court in a prior case warned the Hagles several times to serve Luscombe but that the Hagles failed to do so. In th e prior case, the district court dismissed Ronald Hagle ’ s suit against the Luscombe defendants because he failed to14

serve process on them despite being “on notice of the lack of proof of service upon defendants and his need to serve these indispensable parties.” It is apparent from our review of the record that the Hagles’ attorney was aware that the Luscombe defendants had not been served in this case , was aware of the consequences of not serving them , and consciously chose not to do so

. Instead, the Hagles chos e to rely solely on their argument that the Luscombe defendants were not necessary parties. In the particular circumstances of this case , it was unnecessary for the district court to give the Hagles an opportunity to serve process on Luscombe because the Hagles effectively had refused to do so and, thus, waived their right to an additional opportunity to do so. See State v. Jones , 772 N.W.2d 496 , 5 0 5 ( Minn. 2009); Patterson v. Wu Family Corp. , 608 N.W.2d 863 , 866

- 67 (Minn. 2000). Thus , the district court did not err by granting BNY Mellon ’s and MERS’s
summary - judgment motion with respect to count 4

. In sum, the district court erred by dismiss ing counts 6 and 8 as they relate to BNY Mellon and MERS . The case is remanded to the district court for further proceedings between the Hagles and BNY Mellon with respect to those two claims

. Affirmed in part, reversed in part , and remanded .