McDonald v. Zink , 2017 MT 33N ( 2017 )

02/21/2017
DA 16-0154
Case Number: DA 16-0154
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 33N
LEE MCDONALD,
Plaintiff and Appellee,
v.
ERIKA ZINK,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DV 14-1155
Honorable Michael G. Moses, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jock B. West, West Law Firm, P.C., Billings, Montana
For Appellee:
Christopher T. Sweeney, Afton E. Ball, Moulton Bellingham PC,
Billings, Montana
Submitted on Briefs: January 11, 2017
Decided: February 21, 2017
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Erika Zink (Zink) appeals from a February 9, 2016 District Court order denying
her motion to set aside a default judgment. We affirm.
¶3 Lee McDonald (McDonald) sold real property to Zink in May 2003, through a
contract for deed. In the contract, Zink listed her address for service of process as the
real property address. In June 2013, with more than $75,000 remaining due on the
contract, Zink stopped making payments. McDonald requested immediate payment; he
sent notices to the address Zink provided in the contract as well as the address of her
uncle’s business, A-One Plumbers in Billings, Montana. Zink was not living at the
address listed on the contract, nor did she update her address with McDonald or the
escrow agent.
¶4 After more than one year without payment or response from Zink, McDonald
brought a quiet title action in Yellowstone County on August 12, 2014. McDonald
retained a local process server. He personally, and through his attorney, attempted to
locate Zink. McDonald’s attorney filed an affidavit claiming to have made a diligent
search for all interested persons, yet was unable to locate Zink for service of process and
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notice of the action. McDonald requested service by publication. The District Court
signed an order on September 2, 2014, and publication was made. Zink did not respond.
¶5 McDonald applied for default, which was entered by the clerk on November 17,
2014. McDonald then filed a motion for a default judgment. A hearing was scheduled
for December 11, 2014. Zink did not appear and the District Court granted the motion.
McDonald continued to attempt to locate Zink and in June 2015 Zink replied to an email
from McDonald. Zink expressed she no longer desired to be a party to the agreement or
owner of the property. Zink did not express a desire to remedy the default or exert an
ownership interest in the property.
¶6 One year after the default judgment was entered, on December 11, 2015, Zink
filed a motion to set it aside. McDonald filed a response and Zink replied. The District
Court denied Zink’s motion to set aside the judgment. McDonald then moved for
attorney’s fees per the contract, which provided for reasonable attorney’s fees to the
prevailing party if litigation was necessary to enforce the contract. The District Court
granted the motion.
¶7 A district court’s ruling on a motion to set aside a default judgment pursuant to
M. R. Civ. P. 60(b) is reviewed for abuse of discretion. Heller v. Gremaux, 2002 MT
199, ¶ 7, 311 Mont. 178, 53 P.3d 1259. If a district court denies a motion to set aside a
default judgment, only a slight abuse of discretion need be shown to warrant reversal.
Green v. Gerber, 2013 MT 35, ¶ 13, 369 Mont. 20, 303 P.3d 729. Where the movant
sought relief on the grounds that the judgment is void, the standard of review is de novo,
since the determination that a judgment is or is not void is a conclusion of law.
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M. R. Civ. P. 60(b)(4); Essex Ins. Co. v. Moose’s Saloon, Inc., 2007 MT 202, ¶ 16, 338
Mont. 423, 166 P.3d 451.
¶8 Zink claims McDonald fraudulently obtained service by publication and therefore
the District Court did not have jurisdiction over the case. M. R. Civ. P. 60(b) provides
six exceptions to the doctrine of finality of judgments, provided the party seeking relief
was wronged through no fault of her own. Wittich Law Firm, P.C., v. O’Connell, 2013
MT 122, ¶ 25, 370 Mont. 103, 304 P.3d 375; In re Marriage of Hopper, 1999 MT 310,
¶ 29, 297 Mont. 225, 991 P.2d 960. Relief can be based upon “fraud.” M. R. Civ. P.
60(b)(3). Alternatively, a default judgment may be declared void under M. R. Civ. P.
60(b)(4) if the court that rendered the judgment lacked subject matter jurisdiction.
Greater Missoula Area Fed’n. of Early Childhood Educators v. Child Start, Inc., 2009
MT 362, ¶ 21, 353 Mont. 201, 219 P.3d 881.
¶9 The record shows and the District Court correctly concluded that Zink did not
demonstrate any deficiency or fraud in the service of process. Zink failed to update her
address when she moved and McDonald’s attorney submitted an affidavit to justify
service by publication. McDonald attempted to serve Zink numerous times through mail,
a process server, his attorney, and publication. Zink provided an affidavit that
documented McDonald’s assertion that service of process was attempted on A-One
Plumbing. The record established that McDonald did what was required to locate and
serve Zink. Zink has not established that service by publication was improper.
M. R. Civ. P. 4(o)(3)(A)(ii)(a)(3). The District Court had jurisdiction over the case.
M. R. Civ. P. 60(b)(4).
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¶10 Further, M. R. Civ. P. 60(b) only provides relief for a defendant who has been
wronged through no fault of their own. Wittich, ¶ 25. Here, Zink failed to make
payments on the loan. Zink failed to accept or respond to letters, notices, service of
process, or publication of service for over two and a half years. Further, Zink notified
McDonald by email in June 2015 that she had no further interest in the property. The
District Court’s denial of the motion to set aside the judgment was not an abuse of
discretion. M. R. Civ. P. 60(b)(4).
¶11 Zink further argues the District Court abused its discretion when it awarded
attorney’s fees. If there exists a legal basis to award attorney’s fees to the prevailing
party, this Court reviews the district court’s determination for an abuse of discretion.
Wohl v. City of Missoula, 2013 MT 46, ¶ 29, 369 Mont. 108, 300 P.3d 1119. The
contract for the sale of the real property included a clause that provided that if, in order to
enforce the contract, one party is required to institute legal action, the prevailing party
shall be entitled to reasonable attorney’s fees. Here, Zink forced McDonald to pursue a
quiet title action when she defaulted. Further, McDonald was required to defend against
Zink’s motion to set aside the default judgment. McDonald was the prevailing party.
McDonald is entitled to reasonable attorney’s fees based on the language of the contract.
The District Court did not abuse its discretion.
¶12 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
of the Court, the case presents a question controlled by settled law or by the clear
application of applicable standards of review.
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¶13 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR
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