Full Opinion

IN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS ESTATE OF SOLEDAD T. OGUMORO, Plaintiff-Appellee, v. HAN YOON KO, Defendant-Appellant/Third Party Plaintiff/Cross-Appellee, v. YOUNG BOO JUNG, Third Party Defendant/Cross-Appellant. SUPREME COURT NO. CV-06-0015-GA SUPERIOR COURT NO. 99-0655 Cite as: 2011 MP 11 Decided October 20, 2011 Douglas F. Cushnie, Saipan, MP, for Plaintiff-Appellee. Joseph E. Horey, O’Connor Berman Dotts & Banes, Saipan, MP, for Defendant-Appellant/Third Party Plaintiff/Cross-Appellee. Thomas E. Clifford, Saipan, MP, for Third Party Defendant/Cross-Appellant. BEFORE: MIGUEL S. DEMAPAN,1 Chief Justice; JOHN A. MANGLONA, Associate Justice; ANITA A. SUKOLA, Justice Pro Tem. MANGLONA, J.: ¶1 Defendant Han Yoon Ko (“Ko”) appeals a series of orders from the trial court finding him liable for $62,216.65 in damages arising from termination of a lease agreement plus an additional $36,011.78 in attorney fees. Ko asserts that that the trial court erred in concluding that Soledad T. Ogumoro terminated his leasehold interest, and that the trial court should not have held him liable for various promises in a ground lease that he did not sign. We agree with both of Ko’s contentions. We further hold that the Restatement (Second) of Property provides lessors a right of termination in the absence of a lease provision to the contrary. ¶2 Third Party Defendant Young Boo Jung also appeals, arguing that: (1) it was error for the trial court to set aside the default judgment taken against Ko; (2) Ko abandoned his interest in the leasehold as a matter of law; and (3) he was entitled to recover attorney fees paid by his insurer. We hold as follows: (1) Jung had standing to challenge the order setting aside the default judgment; (2) the trial court correctly set aside the default judgment; (3) a lack of factual findings prevents us from deciding the abandonment issue as a matter of law; and (4) Jung is not entitled to recover attorney fees paid by his insurer because his insurer paid the entire claim, thereby depriving Jung of the right to recover fees paid by his insurer. I ¶3 The chain of events leading up to the present litigation began in November 1994 when Soledad T. Ogumoro (“Ogumoro”), Suk Kon Jo, and Jun Duk Soon Jo (“the Jos”) executed a fifty-five year Ground Lease for Lot No. 2003-4-R3 (“the Lot”).2 The Ground Lease specified that the Jos would make up-front payments of $210,000. This prepayment covered all rents through December 1998. Beginning in December 1998, the rent increased to $2,000, due monthly. ¶4 In August 1995, the Jos mortgaged their interest in the Lot, plus their interest in a second lot, as security for a $264,000 loan from Ko. Ko recorded this mortgage. Sometime thereafter, the Jos failed to make their monthly mortgage payment. As a result, Ko foreclosed on the mortgage. In March 1997, Ko obtained a writ of execution from the trial court against the Jos in the amount of $296,736. After a judicial sale several months later, the trial court granted an order authorizing Ko to purchase the Jos’ leasehold interest in the Lot for $25,000. Throughout this time, neither Ko nor the Jos informed Ogumoro that the 1 Former Chief Justice Miguel S. Demapan heard oral argument. Prior to the issuance of this Opinion, he retired from the Commonwealth Judiciary. 2 The Lot is located at the intersection of Chalan Palé Arnold and Chalan Monsignor Guerrero in San Jose, Saipan. 1 Jos had mortgaged their leasehold interest or that Ko had acquired the Jos’ leasehold interest through the judicial sale. ¶5 In April 1999, believing that the Jos were still the lessees, Ogumoro’s attorney sent them a notice of default, demanding payment of rent for March and April 1999. In October 1999, Ogumoro’s counsel sent the Jos a second letter advising the Jos that Ogumoro was lawfully terminating the lease for failure to pay rent. Shortly thereafter, Ogumoro sued the Jos for breach of contract, seeking termination of the Ground Lease. Ogumoro sought damages in the amount of the unpaid rent as well as attorney fees. ¶6 During the proceedings against the Jos, Ogumoro learned that Ko had purchased the Jos’ leasehold interest at the 1997 judicial sale. Prior to the lawsuit, the only contact between Ko and Ogumoro occurred in January 1999 when Bernadita Palacios, Ko’s agent in Saipan, along with Ko’s wife, visited Ogumoro at her residence. Palacios presented Ogumoro with a check from the “Glory Corporation” for $6,000, covering rent from December 1998 to February 1999. Although Ko was the owner of Glory Corporation, the check did not have Ko’s name on it. Despite the check from Glory Corporation, Ogumoro continued to believe that the Jos were the legal lessees. ¶7 In August 2000, Ogumoro moved to add Ko as a defendant to her lawsuit against the Jos. Ogumoro averred that she was unable to locate and serve Ko using regular service of process and that it was necessary to serve him via publication. In November 2000, the trial court authorized service by publication. The trial court relied on Ogumoro’s statement that she did not know Ko’s physical or mailing addresses and that she could not obtain them by exercise of reasonable diligence. ¶8 The notice of summons was published in the newspaper four times in November and December 2000. Ko did not respond to the published notice of summons. On February 28, 2001, the trial court entered default judgment against Ko and the Jos for breach of contract. The trial court terminated the Ground Lease for failure to pay rent, ordered Ko and the Jos to vacate the Lot, and concluded that Ko and the Jos were jointly and severally liable to Ogumoro for damages totaling $80,200, plus attorney fees. ¶9 In reliance on the trial court’s order terminating the Ground Lease, Ogumoro began negotiating a new lease for the Lot with Young Boo Jung (“Jung”) in early 2001. As part of his due diligence, Jung conducted a preliminary title search on the Lot which revealed a possible defect of title. Jung’s and Ogumoro’s attorneys resolved the defect. A second preliminary title search by Jung showed that title to the Lot was clear. Jung and Ogumoro signed a lease agreement and Jung recorded the new lease. ¶ 10 During the next year, Jung invested hundreds of thousands of dollars to develop the Lot. Among other things, Jung cleared vegetation, graded the Lot, added pavement, constructed a commercial building, and installed a backup generator. Additionally, Jung executed two subleases: one with D.Y. Corporation (“D.Y.”) and another with Pacific Blue Corporation (“Pacific Blue”). Both subtenants made additional improvements to the Lot. Ko became aware of Jung’s and the sublessee’s improvements on or 2 around September 2002. He contacted his attorney about the improvements in December 2002; however, he did not notify Jung or Ogumoro, nor did he attempt to make rental payments under the Ground Lease. Ogumoro died in December 2002. Her estate (“the Estate”) became the successor in interest to this action. ¶ 11 Ko learned of the default judgment against him in February 2003 and filed a motion to set aside the default judgment in March 2003. To protect his status as the Estate’s lessee, Jung filed a motion to intervene after learning of Ko’s motion to set aside the default. The trial court found that Ogumoro had access to mailing addresses for both Ko and Ko’s attorney when she sought to serve Ko with process. The trial court concluded that Ogumoro should have attempted to serve Ko or Ko’s attorney prior to petitioning the trial court for service by publication. As a result, the trial court set aside the February 2001 default judgment against Ko. The set-aside of Ogumoro’s default judgment revived Ogumoro’s breach of contract action against Ko. ¶ 12 Shortly thereafter, Ko filed a separate action to quiet title against Jung and Jung’s sublessees, D.Y. and Pacific Blue. Jung and D.Y. counterclaimed against Ko. Both D.Y. and Pacific Blue cross- claimed against Jung for indemnification pursuant to the terms of their subleases with Jung. Jung impleaded the Estate as a third party defendant, then cross-claimed against the Estate for damages arising from Ko’s suit based on an indemnification provision in his lease agreement with Ogumoro. In October 2005, the trial court consolidated Ko’s quiet title action into the Estate’s revived breach of contract action. After the consolidation, Jung and his sublessees became third party defendants in the breach of contract action against Ko. Ko then filed a motion to dismiss the breach of contract cause of action, which the trial court denied in January 2006. ¶ 13 In March 2006, the trial court granted D.Y.’s cross-motion for summary judgment against Jung and Jung’s cross-motion for summary judgment against Ko.3 First, the trial court determined that paragraph 28 of the Ground Lease made all of the lease provisions applicable to Ko. Next, the trial court concluded that: (1) Ko breached the lease agreement by failing to pay rent; (2) Ogumoro had properly terminated the lease with Ko for his failure to pay rent; and (3) Ko was liable to the Estate for breaching the Ground Lease. ¶ 14 In the months following summary judgment, the trial court awarded attorney fees and damages. Pacific Blue obtained a judgment against Jung for $1,822 in attorney fees. Pacific Blue’s fee award was based on an indemnification clause in the sublease agreement between Jung and Pacific Blue. Jung obtained a judgment against the Estate for $7,092 in attorney fees plus Pacific Blue’s $1,822 in attorney fees for a combined award of $8,914. Jung passed his and Pacific Blue’s attorney fees to the Estate via an indemnification clause in the Jung-Ogumoro lease agreement. The Estate obtained a judgment against Ko 3 Pacific Blue did not join D.Y.’s cross-motion for summary judgment. 3 totaling $98,228.43 including: (1) $8,914 for indemnification of Jung and Pacific Blue’s attorney fees; (2) $36,011.78 for the Estate’s attorney fees;4 (3) $4,827.16 in unpaid rent; and (4) $48,475.49 in lost rents. The indemnification and attorney fee awards against Ko were based on clauses in the Jo-Ogumoro Ground Lease. Ko timely appealed, and Jung followed with a cross-appeal. II ¶ 15 We have jurisdiction over this appeal pursuant to 1 CMC § 3102(a). III A. Validity of the Default Judgment Under Rule 60(b)(4) ¶ 16 The trial court concluded that the February 2001 default judgment Ogumoro obtained against Ko was void because Ogumoro was not reasonably diligent in her efforts to serve Ko. As a result, the trial court invalidated the default judgment pursuant to NMI Rule of Civil Procedure 60(b)(4). Jung asserts that the trial court committed error because Ogumoro’s efforts to serve Ko were reasonably diligent and, even if Ogumoro’s efforts to serve Ko were not reasonably diligent, Ko assented to be bound by the default judgment.5 Ko counters that Jung lacks constitutional standing to appeal the set-aside of the default judgment. We address each argument in turn. 1. Standard of Review ¶ 17 NMI Rule of Civil Procedure Rule 60(b)(4) mandates that the trial court set aside a default judgment “when the judgment is void.” J.C. Tenorio Enters. v. Pedro, 2006 MP 22 ¶ 10. “There is no question of discretion on the part of the court when a motion is [brought] under Rule 60(b)(4). . . . Either a judgment is void or it is valid.” Thomas P. Gonzalez Corp. v. Consejo Nacional De Produccion De Costa Rica, 614 F.2d 1247, 1256 (9th Cir. 1980) (quoting 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 2862 (2d. ed. 1995)). Unlike other Rule 60(b) motions, 4 The final judgment states that the $36,011.78 was for “attorneys’ fees and costs of suit.” Ogumoro v. Ko, Civ. No. 99-0655 (NMI Super. Ct. July 5, 2007) (Entry of Judgment at 1) (unpublished). Upon review of the documents leading up to the final judgment, we ascertain that the trial court awarded the $36,011.78 only for attorney fees. Ogumoro v. Ko, Civ. No. 99-0655 (NMI Super. Ct. Jan. 9, 2007) (Order Awarding Attorney’s Fees and Consequential Damages at 8) (unpublished) (“Ogumoro requests $36,362.03 in attorney’s fees incurred by Manibusan and Newman.”). The trial court reduced the $36,362.03 award by $350.25 in a subsequent order. Ogumoro v. Ko, Civ. No. 99-0655 (NMI Super. Ct. Apr. 11, 2007) (Order Partially Reconsidering Awards of Attorneys’ Fees at 6) (unpublished) (“To prevent manifest injustice, Ko shall be liable to the Estate for $36,011.78 (the Estate’s claim of 36,362.03 minus $350.25).”). 5 Jung additionally argues that “a notice-effort may comply with Constitutional requirements under the Due Process Clause and yet fail to comply with the requirements of an applicable statute or rule of court.” Restatement (Second) of Judgments § 2(3) (1980). Based on this Restatement provision, Jung asserts that while Ogumoro’s efforts to serve Ko may not have complied with Commonwealth statutory law, her efforts to locate Ko were constitutionally sufficient, thereby rendering the judgment voidable instead of void. We decline to address this argument because, as set forth below, we hold that Ogumoro’s efforts to locate Ko fell below constitutional due process minimums. 4 which are subject to abuse of discretion review, J.C. Tenorio Enters., 2006 MP 22 ¶ 9, we review de novo a trial court’s determination that a default judgment is void for insufficient service of process. Reyes v. Reyes, 2001 MP 13 ¶ 24; Export Group v. Reef Indus., Inc., 54 F.3d 1466, 1469 (9th Cir. 1995). 2. Standing ¶ 18 Ko argues that because Jung was merely an intervenor in Ko’s action to set aside the February 2001 default judgment, Jung lacks standing to challenge the trial court’s decision. The general rule is that an intervenor at the trial level may ride “piggyback” on the constitutional standing of one of the original parties to the litigation if the intervenor is in the same procedural posture (e.g. defendant or plaintiff) as the original party filing the appeal. Diamond v. Charles, 476 U.S. 54, 64 (1984); City of Herriman v. Bell, 590 F.3d 1176, 1183-84 (10th Cir. 2010). Jung intervened in the default judgment proceedings on the same side as the Estate. Because the Estate did not file an appeal,6 we hold that Jung may not file a cross- appeal challenging the default judgment based on his status as an intervenor. ¶ 19 Nevertheless, Jung argues that his appeal is supported by independent constitutional standing. Diamond, 476 U.S. at 68. “In essence[,] the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute . . . .” Warth v. Seldin, 422 U.S. 490, 498 (1975). As articulated by the United States Supreme Court, standing requires that a plaintiff: (1) “‘must have suffered an injury in fact—an invasion of a legally protected interest which is a) concrete and particularized, and b) actual or imminent, not conjectural or hypothetical’; (2) ‘there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of independent action of some third party not before the court’; and (3) ‘it must be likely, as opposed to merely speculative that the injury will be redressed by a favorable decision.’” San Luis & Delta-Mendota Water Auth. v. Salazar, 638 F.3d 1163, 1169 (9th Cir. 2011) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). Courts often restate these requirements as injury-in- fact, causation, and redressability. See, e.g., W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 485 (9th Cir. 2011); Chapman v. Pier 1 Imps. (U.S.), Inc., 631 F.3d 939, 946 (9th Cir. 2011). ¶ 20 Here, Jung has demonstrated an injury-in-fact flowing from Ko’s successful motion to set aside the default judgment. Jung spent hundreds of thousands of dollars developing the Lot. He also incurred liabilities by entering into sublease agreements with D.Y. and Pacific Blue. Jung satisfies the causation requirement because Ko’s successful bid to set aside the default judgment created a cloud over title to 6 The Estate appealed the trial court’s order setting aside the default judgment at the time it was entered. We dismissed the appeal for failure to prosecute under former Commonwealth Rules of Appellate Procedure 31(a). See Ogumoro v. Jo, No. 04-0008-GA (NMI Sup. Ct. March 22, 2005) (Order of Dismissal). The Estate’s counsel later responded to an order to show cause, explaining that the failure to prosecute occurred because of a misunderstanding between the attorneys on both sides and that the Estate had intended to dismiss the appeal because it was premature. See Written Explanation on Order to Show Cause, Ogumoro v. Jo, No. 04-0008-GA (NMI Sup. Ct. April 25, 2005). 5 Jung’s leasehold interest. This cloud jeopardizes Jung’s possessory interest in the leasehold, his extensive improvements to the leasehold, and his legal relations with his sublessees. Finally, Jung satisfies the redressability requirement because if successful on appeal, Jung would regain his status as the undisputed leaseholder of the Lot, free and clear from Ko’s claim of superior title. Thus, we conclude that Jung has independent constitutional standing to challenge the set-aside of the default judgment. 3. Reasonable Diligence ¶ 21 Jung asserts that it was error for the trial court to set aside the default judgment because Ogumoro did not exercise reasonable diligence in searching for Ko prior to effecting service by publication. The requirements for personal service of process are set forth by NMI Rule of Civil Procedure 4(e)(1), which provides that service may be effected “in any manner prescribed or authorized by any law of the Commonwealth.” Generally, service of process is complete when “notice of the service and a copy of the summons and complaint are served upon the defendant personally by any person authorized to serve process . . . ; or sent by certified or registered mail, postage prepaid . . . , by the plaintiff or the plaintiff’s attorney to the defendant.” 7 CMC § 1104(a); see also NMI R. Civ. P. 4(e)(2). ¶ 22 When a defendant cannot be personally served in the manner specified by 7 CMC § 1104(a), 7 CMC § 1104(b) authorizes service by publication: [I]f the defendant cannot be personally served by mail the summons and complaint, and if by affidavit or otherwise the court is satisfied that with reasonable diligence the defendant cannot be served, and that a cause of action arises against the party upon whom service is to be made, or he is a necessary and property party to the action, the court may order that service be made by publication of the summons in at least one newspaper published and having a general circulation in the Commonwealth. Id. (emphasis added).7 According to the United States Supreme Court, service by publication is permissible “where it is not reasonably possible or practicable to give more adequate warning,” because “in the case of persons missing or unknown, employment of an indirect and even a probably futile means of notification is all that the situation permits and creates no constitutional bar to a final decree foreclosing their rights.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 317 (1950); Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 797-98 (1983). 7 In his brief, Jung suggests that posting a notice to “appear or plead” pursuant to 7 CMC § 1302 is a “substantial equivalent” to service under section 1104(b). Appellee’s Resp. Br. 12 n.2. Jung makes this argument in a footnote, without any supporting authority or argument. We state time and again that “we will not consider an issue for which the proponent cites no legal authority.” Guerrero v. Dep’t of Pub. Lands, 2011 MP 3 ¶ 24 (Slip Opinion, Mar. 31, 2011); In re Estate of Angel Malite, 2010 MP 20, ¶ 27 n.27 (Slip Opinion, Dec. 28, 2010) (citing Fitial v. Kim Kyung Duk, 2001 MP 9 ¶ 18); Roberto v. De Leon Guerrero, 4 NMI 295, 297-98 (1995). Moreover, an argument raised in a footnote is not adequately preserved for our review. See SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006) (“[A]rguments raised in footnotes are not preserved.”); United States v. Svoboda, 347 F.3d 471, 480 (2d Cir. 2003) (“It is well-established . . . that we do not consider an argument mentioned only in a footnote to be adequately raised or preserved for appellate review.). 6 ¶ 23 When a plaintiff serves the defendant by publication, the central inquiry into the validity of service is whether the plaintiff exercised reasonable diligence in attempting to locate the defendant. Mennonite Bd. of Missions, 462 U.S. at 804-05. It is axiomatic that “if a defendant's name and address are known or may be obtained with reasonable diligence, service by publication will not satisfy the requirements of due process.” SEC v. Tome, 833 F.2d 1086, 1094 (2d Cir. 1987) (citing Mennonite Bd. of Missions, 462 U.S. at 800); United States v. Borromeo, 945 F.2d 750, 752 (4th Cir. 1991). Service by publication does not realistically afford a defendant actual notice of the lawsuit, and thus, should only be used as a last resort, when service by other methods is not reasonably practicable. Watts v. Crawford, 896 P.2d 807, 811 n.5 (Cal. 1994). ¶ 24 The trial court rested its decision to set aside the default judgment in part upon Ogumoro’s failure to attempt service of process on Ko’s attorney. Title 1 CMC § 1104(b) does not specify whether an attorney may be served with process in his or her client’s stead; NMI Rule of Civil Procedure 4(e)(2) (“Rule 4(e)(2)”) is more helpful. While Rule 4(e)(2) does not explicitly authorize an attorney to receive service of process, it does permit “an agent authorized by appointment . . . to receive service of process.” NMI R. Civ. P. 4(e)(2). We must therefore interpret Rule 4(e)(2) to determine whether Ogumoro could have served Ko’s attorney as “an agent authorized by appointment.” We turn to federal cases for aid in interpreting this Rule.8 ¶ 25 A defendant may appoint an agent to receive service of process on his or her behalf, but that appointment must be explicit. See Smith v. W. Offshore, Inc., 590 F. Supp. 670, 674 (E.D. La. 1984) (concluding that service on a harbormaster was insufficient service of process when the harbormaster was not explicitly appointed to receive service for his shipping company); Lamont v. Haig, 539 F. Supp. 552, 557 (D.S.D. 1982) (requiring that an agent be “actually appointed” in order to receive service of process) overruled on other grounds by Engleman v. Murray, 546 F.3d 944, 948 n.3 (8th Cir. 2008). In the absence of a specific appointment, the circumstances of the agency relationship must expressly or impliedly indicate that the alleged agent has authority to receive service of process. See, e.g., Schultz v. Schultz, 436 F.2d 635, 637 (7th Cir. 1971) (holding that there was “no reasonable basis” to find that the defendant’s execution of an itemized power of attorney made the defendant’s attorney an agent “authorized by 8 “[W]hen interpreting our rules of civil procedure, which are patterned after the federal rules, we will principally look to federal interpretation for guidance.” Commonwealth Dev. Auth. v. Camacho, 2010 MP 19 ¶ 16 (Slip Opinion, Dec. 21, 2010); accord Ishimatsu v. Royal Crown Ins. Corp., 2010 MP 8 ¶ 60 (Slip Opinion, June 1, 2010). Federal Rule of Civil Procedure 4 has been amended several times since the Northern Mariana Islands adopted the federal rules. This jurisdiction has not kept pace with the federal amendments. Despite these intervening amendments, Federal Rule of Civil Procedure 4(e)(2)(C) is nearly identical to the current NMI Rule of Civil Procedure 4(e)(2). Most of the federal cases cited in this opinion related to this issue refer to former Federal Rule of Civil Procedure 4(d)(1) which is also substantively similar to NMI Rule of Civil Procedure 4(e)(2). 7 appointment” to receive service of process); Franklin Am., Inc. v. Franklin Cast Prods., Inc., 94 F.R.D. 645, 647 (E.D. Mich. 1982) (holding that wife’s alleged statement that plaintiff’s attorney could leave process with the housekeeper was insufficient evidence that the housekeeper was an agent for receipt of process). ¶ 26 Here, there is no suggestion that Ko had an attorney who was “authorized by appointment” to receive service of process on Ko’s behalf at the time Ogumoro sought to serve Ko with the summons and complaint. We hold that Ogumoro had no duty to search for the address of an attorney who could not have been legally served in Ko’s stead. The trial court erroneously based part of its decision to vacate the February 2001 default judgment on this ground. ¶ 27 We must also address Jung’s contention that service of process could not have been mailed to Ko. The trial court found that Ogumoro had “a local business address and phone number for Mr. Ko.” Ogumoro v. Ko, No. 99-0655 (NMI Super. Ct. March 8, 2004) (Order Granting Defendant’s Rule 60(b) Motion for Relief from Judgment at 5) (“Set Aside Order”). Jung disputes the trial court’s reliance on this fact, arguing that (1) Ogumoro did not have knowledge of Ko’s mailing address, and (2) she was not obligated to serve an address she could not reasonably ascertain. Jung also argues that, even if Ogumoro had a local mailing address for Ko, Ogumoro’s other efforts to locate Ko satisfied the reasonable diligence requirement. ¶ 28 As to Jung’s first argument, our standard of review is dispositive. We review the trial court’s findings of fact for clear error. Mendiola v. Commonwealth Utils. Corp., 2005 MP 2 ¶ 11. While we observe that the trial testimony and trial documents are at times inconsistent, the facts support the trial court’s finding that Ogumoro had a local mailing address for Ko. The two-page excerpt of the Ko-Jo mortgage included in the record contains Ko’s name and a local Saipan address. In addition, there is evidence that either Ogumoro or her children visited the Commonwealth Recorder’s Office after Ko recorded the Jo-Ko mortgage. Based on these facts, we cannot fault the trial court’s inference that Ogumoro knew Ko’s mailing address. Because we uphold the trial court’s factual finding that Ogumoro had Ko’s mailing address, we need not address the constitutional sufficiency of the steps Ogumoro undertook to locate that address. ¶ 29 We now turn to Jung’s contention that despite Ogumoro’s possession of Ko’s mailing address, Ogumoro’s other efforts to locate and serve Ko satisfied the reasonable diligence requirement. What constitutes reasonable diligence “depend[s] on the facts of each case.” People ex rel. Waller v. Harrison, 810 N.E.2d 589, 594 (Ill. App. Ct. 2004). A plaintiff may not declare that he or she has conducted a reasonably diligent search while leaving simple, reasonable methods untried. Price v. Dunn, 787 P.2d 785, 787 (Nev. 1990) (“Where other reasonable methods exist for locating the whereabouts of a defendant, plaintiff should exercise those methods.”); see also Redfield Invs. v. Vill. of Pinecrest, 990 So. 8 2d 1135, 1139 (Fla. Dist. Ct. App. 2008) (“[T]he apparent failure of [the plaintiff] to inquire of the most likely source of potential information concerning the whereabouts of [the defendant] . . . falls short of the statutory and constitutional requirements necessary to satisfy [Florida’s] service of process by publication law.”). ¶ 30 Here, the trial court concluded that while Ogumoro “offered testimony as to substantial steps taken by various people to personally serve Mr. Ko. . . . , the simple failure to send process to a known mailing address is enough by itself to render the attempted service deficient.” Set Aside Order at 5 n.2. We agree with the trial court. Ogumoro cannot claim reasonable diligence while simultaneously leaving an obvious avenue of service untried. We affirm the trial court’s decision to set aside the default judgment. 4. Assent to the Default Judgment ¶ 31 Jung’s final argument is that a default judgment otherwise void under Rule 60(b)(4) should not be set aside where the defendant manifests intent to be bound by it and another party relies on it. This argument is based on the Restatement (Second) of Judgments § 66 (1982) (“Restatement § 66”), which reads: Relief from a default judgment on the ground that the judgment is invalid will be denied if: (1) The party seeking relief, after having had actual notice of the judgment, manifested an intention to treat the judgment as valid; and (2) Granting the relief would impair another person’s substantial interest of reliance on the judgment. This argument is a form of judicial estoppel, and we previously acknowledged the applicability of this Restatement rule in Sullivan v. Tarope, 2006 MP 11 ¶ 39. Succinctly stated, a litigant may not accept benefits conferred by a default judgment and later attempt to invalidate the judgment to the detriment of the nonmoving party. Id. ¶ 37. This rule is not “a form of judicial alchemy;” it cannot “transform a void judgment into a valid one.” Id. Rather, it imposes an equitable disability on the party challenging the default judgment, thereby estopping the challenger from asserting that the judgment is void. Adams v. Nationsbank, 49 S.W.3d 164, 168 (Ark. Ct. App. 2001); Jennings v. Jennings, 531 N.E.2d 1204, 1206 (Ind. Ct. App. 1988); McDougall v. McDougall, 961 P.2d 382, 384 (Wyo. 1998). ¶ 32 The first prong of Restatement § 66 requires the party seeking relief from the judgment to have had actual notice of the default judgment. Actual notice is defined as “[n]otice given directly to, or received personally by a party.” Khan v. City of Flint, 800 N.W.2d 600, 600-01 (Mich. 2011) (quoting Black’s Law Dictionary 1090 (8th ed. 2004)). The only Commonwealth case interpreting this Restatement provision, Sullivan, aligns with this definition of actual notice. We noted in Sullivan that “[i]t is undisputed that . . . Jose knew of the divorce and the child support terms he now wishes to avoid. Rather than object to the judgment . . . , he accepted it as valid . . . .” Sullivan, 2006 MP 11 ¶ 43. Sullivan 9 illustrates that mere suspicion or circumstantial knowledge of a default judgment does not satisfy the Restatement. ¶ 33 On the record before us, Ko did not receive actual notice of the default judgment until February 2003, when he learned of the default judgment through his attorney.9 Though Ko admitted that he had seen construction on the Lot by late 2002, we reject Jung’s contention that this was legally sufficient to apprise Ko that there was a default judgment entered against him. Neither Ko’s failure to inquire into the construction on his property nor the fact that Ko ceased paying rent equates to actual notice. Moreover, nothing in the record before us suggests that Ko was evading knowledge of the default, and Jung does not direct our attention to any contrary evidence. Thus, Jung fails to establish the first element of his claim of estoppel by assent. We need not inquire further. B. Ko’s Liability Under the Jo-Ogumoro Ground Lease ¶ 34 On Jung’s and D.Y.’s cross-motions for summary judgment, the trial court concluded that Ko was liable to the Estate based on certain clauses contained in the Ground Lease. Specifically, the trial court determined that the attorney fees, indemnification, forfeiture, and notice clauses in the Ground Lease applied to Ko.10 Based on this determination, the trial court ruled that Ko’s interest in the Lot was terminated and that Ko was liable to the Estate. Ko’s liabilities included unpaid rent, lost rent, the Estate’s attorney fees, and indemnification of the Estate for Jung’s and Pacific Blue’s attorney fees.11 Ko argues that: (1) he cannot be liable for promises contained in the Ground Lease because he did not expressly assume the terms of the Ground Lease; (2) his liabilities are limited to unpaid rent on the Lot; and (3) as the rightful lessee of the Lot, possession of the Lot should be restored to him. 9 Mr. Ko: I heard this from my lawyer that Ogumoro is suing me, and I learned that from my attorney. Mr. Inos: And do you know what month or year that was? A: This year, February. Q: So 2003, is that correct? A: Yes. Q: So prior to February 2003, you did not know anything about the default judgment? A: That is correct . . . . Ko’s Supplemental Excerpts of Record at 24. This testimony was taken at the evidentiary hearing prior to the trial court’s decision to set aside the default judgment. 10 See Ogumoro v. Ko, Civ. No. 99-0655 (NMI Super. Ct. Jan. 20, 2005) (Order Denying Ko’s Rule 12(b)(6) Motion to Dismiss at 8); Ogumoro v. Ko, Civ. No. 99-0655 (NMI Super. Ct. May 11, 2006) (Order Denying Ko’s Motion for Reconsideration and For Entry of Final Judgment at 4 n.7); Ogumoro v. Ko, Civ. No. 99-0655 (NMI Super. Ct. Oct. 30, 2006) (Order Granting in Part the Estate’s Motion for Summary Judgment on the Issue of Damages at 9) (unpublished). 11 The trial court denied D.Y.’s claim for attorney’s fees holding that D.Y., while able to enforce its rights as Jung’s sublessee, was obligated to do so at its own expense. Ogumoro v. Ko, Civ. No. 99-0655 (NMI Super. Ct. Jan. 9 2007) (unpublished) (Order Awarding Attorney’s Fees and Consequential damages at 3). 10 ¶ 35 We review a trial court’s grant of summary judgment de novo. Aplus Co. v. Niizeki Int'l Saipan Co., 2006 MP 13 ¶ 9. We must “examine the evidence in the light most favorable to the non-moving party and affirm the trial court if there [are] no genuine issue[s] of material fact . . . . and the trial court correctly applied the substantive law.” Century Ins. Co. v. H.K. Entm't Invs., Ltd., 2009 MP 4 ¶ 14 (brackets, citation, and quotations omitted). 1. Ko’s Legal Relationship to Ogumoro ¶ 36 To determine which, if any, of the promises in the Ground Lease are applicable against Ko, we must scrutinize the legal relationship that arose between Ogumoro and Ko when Ko acquired the Jos’ leasehold interest in the Lot. “Liability between an owner of real property and parties with a leasehold interest is predicated on privity. The common law recognizes three types of privity - privity of contract, privity of estate, and a combination of privity of contract and estate.” Sarete, Inc. v. 1344 U St. Ltd. P'ship, 871 A.2d 480, 495 (D.C. 2005) (quoting 1 Milton R. Friedman, Friedman on Leases § 7:5.1[A] (5th ed. 2004)). Privity of contract is premised on the existence of a contractual relationship between two parties, typically in the form of a lease agreement. Columbia Club, Inc. v. Am. Fletcher Realty Corp., 720 N.E.2d 411, 417 (Ind. Ct. App. 1999). In contrast, privity of estate is a “[a] mutual or successive relationship to the same right in property, as between grantor and grantee or landlord and tenant.” Hodge v. McGowan, 50 V.I. 296, 310 (2008) (quoting Black's Law Dictionary 1238 (8th ed. 2004)). A lease is a combination of privity of contract and privity of estate: acquisition of the leasehold interest creates privity of estate, and the lessee’s written agreement to observe the leasehold provisions creates privity of contract.