Estate of (Pepper) Martin , 2001 MT 110N ( 2001 )

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No. 00-159
IN THE SUPREME COURT OF THE STATE OF MONTANA
2001 MT 110N
IN THE MATTER OF THE ESTATE OF
FLOYD R. (PEPPER) MARTIN, Deceased.
HELEN C. MARTIN,
Petitioner and Respondent,
v.
SUSAN MARTIN SCHOEBEL,
Personal Representative,
Respondent and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
Honorable Dorothy McCarter, Judge Presiding
COUNSEL OF RECORD:
For Appellant:
Gene A. Picotte, Attorney at Law, Helena, Montana
For Respondent:
Thomas K. Harlen, Harlen, Thompson & Parish, P.C., Helena, Montana
Submitted on Briefs: December 14, 2000
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Decided: June 29, 2001
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c) Montana Supreme Court 1996 Internal Operating
Rules, the following decision shall not be cited as precedent but shall be filed as a public
document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issues by this Court.
¶2 This case arises from a Petition for Settlement and Liability of Personal Representative
filed by Helen Martin (Helen) in connection with the administration of the estate of her
husband, Floyd Martin. After the personal representative, Susan Schoebel (Schoebel),
failed to respond to the petition and a subsequent show cause order, the First Judicial
District Court awarded judgment against her in the amount of $36,234.07. Susan appeals
the District Court's entry of judgment against her. We affirm.
FACTUAL BACKGROUND
¶3 Floyd Martin died on July 30, 1993. The bulk of his estate consisted of a business
which Schoebel, the estate's personal representative, attempted to operate over the course
of the next seven years. Concerned that estate assets we being mismanaged, Helen
petitioned the District Court for an accounting, to compel distribution, and to adjudicate
individual liability of the personal representative.
¶4 A hearing on the petition was set for November 5, 1999. Notice was sent to Schoebel
via her attorney of record but neither she nor her attorney appeared at the hearing. The
District Court heard testimony from the petitioner and, at the conclusion of the hearing,
ordered Schoebel to appear on November 23, 1999, and show cause why judgment should
not be entered against her. This order to show cause was personally served on Schoebel
and mailed to her attorney at his address of record.
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¶5 In response, Schoebel filed a motion to vacate the District Court's show cause order,
claiming that neither she nor her attorney received notice of the Petition or the November
5 hearing. The parties disputed-and continue to dispute-whether proper notice was sent
and received but, in any case, Helen agreed to reset the hearing on the original petition for
December 22, 1999. Helen's attorney sent Schoebel's attorney notice of the hearing by
certified mail.
¶6 The matter came before the court as scheduled but, once again, neither Schoebel nor
her attorney appeared. Schoebel contends that, although her attorney received and signed
for the certified letter sent by opposing counsel, it did not contain notice of the hearing.
Opposing counsel disputes this contention and has certified that service of notice was
made.
¶7 The District Court then issued a second order requiring Schoebel to appear personally
and show cause why judgment should not be entered against her. This order was issued
directly by the District Court, and service was completed by regular mail to Schoebel and
her attorney. On January 28, 2000, the final show cause order came before the District
Court for a hearing. Schoebel's attorney was present, but Schoebel was not.
¶8 Once it was established that Schoebel was not going to appear, the District Court
indicated that it was ready to enter judgment against her. Her attorney moved the District
Court for an opportunity to cross-examine Helen's accounting expert. The District Court
denied this request, saying that Schoebel had waived her right to cross-examine by failing
to appear. The District Court then ordered judgment entered in the amount of $36,234.07.
¶9 Schoebel raises the following issues on appeal:
¶10 Issue 1. Was Schoebel denied due process because she did not receive sufficient
notice of the hearing on the petition and the show cause order?
¶11 Issue 2. Did the District Court err when it denied Schoebel's motion to cross-examine
Helen's expert witness at the January 28, 2000, show cause hearing?
DISCUSSION
¶12 Schoebel claims that the judgment against her is void because it was entered without
appropriate notice and because she was denied the right to confront witnesses against her.
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I. The Insufficient Notice Claims
¶13 Schoebel's due process claim contains two distinct parts. First, she contends that the
District Court lacked personal jurisdiction over her because she was never personally
served with notice of the December 22 hearing on the petition or the January 28 hearing
on the show cause order. Second, she asserts that the due process clause of the Fourteenth
Amendment requires personal service of notice if she is required to appear personally. We
reject both of these arguments.
A. Personal Jurisdiction
¶13 As a general rule, personal jurisdiction may be obtained only through strict
compliance with Rule 4D, M.R.Civ.P., which governs service of process. Blaskovich v.
Blaskovich (1991), 249 Mont. 248, 250, 815 P.2d 581, 582. However, where specific
statutes provide for the method of service, those specifics govern over the general rules set
out in the Montana Rules of Civil Procedure. Rule 4D(4), M.R.Civ.P.; Taylor, Thon,
Thompson & Peterson v. Cannaday (1988), 230 Mont. 151, 155, 749 P.2d 63, 65.
Montana's Uniform Probate Code specifically provides for service by certified, registered,
or regular mail. Section 72-1-301(1), MCA. Where a person is represented by an attorney,
service can be made either to the person himself or his attorney. Section 72-1-301(1),
MCA; Rule 5(b), M.R.Civ.P.
¶14 The record indicates that Schoebel-either directly or through her attorney-received
notice of the petition hearing and the show cause hearings by certified or first-class mail.
Under § 71-1-301, MCA, this is sufficient notice to establish the District Court's personal
jurisdiction.
B. Due Process
¶16 Schoebel also contends that the absence of personal service deprived her of due
process. She argues that "a court order or judgment purporting to compel personal action
by the party against whom it operates has no compelling force unless served personally
upon the party." In support of this contention, Schoebel cites Hand v. Hand (1957), 131
Mont. 571, 578, 312 P.2d 990, 994; Application of Garrett (1989), 142 Misc.2d 846, 538
N.Y.S.2d 919; and Bear Lake County v. Budge (Idaho 1904), 75 P. 614.
¶17 In Hand, the Court's decision was based on statutory notice provisions and not on any
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due process analysis. Hand, 131 Mont. at 579, 312 P.2d at 994. Garrett dealt with a
hearing to compel administration of psychotropic drugs. Service of notice was made to the
doctor who sought to compel treatment and who then placed the notice in the patient's file
without showing it to him. Under these special circumstances, the Garrett court held that
notice was insufficient and personal service to the patient was required. Like the Hand
court, the court in Garrett based its decision on statutory provisions and not the due
process clause. In Bear Lake County, the Idaho Supreme Court did hold that due process
requires personal service. However, it is clear from the court's discussion that, by personal
service, it meant service by mail as opposed to service by publication: not hand delivery to
the person being noticed. Bear Lake County, 75 P. at 617. In short, none of the cases cited
by Schoebel support her contention that due process requires personal service.
II. Cross-Examination
¶18 The District Court denied Schoebel's motion to cross-examine witnesses at the final
show cause hearing, saying that she had waived this right by her failure to appear. On
appeal, Schoebel contends that the District Court's refusal to allow cross-examination
violated her Sixth Amendment right to confront witnesses against her. She contends that
the petition and show cause hearing constitute a charge of "de facto criminal
embezzlement" and is, therefore, "a criminal proceeding, requiring full constitutional
protections."
¶19 First, we disagree with Schoebel's characterization of the proceeding. Helen's petition
to determine liability of the personal representative is a civil proceeding between private
parties. Second, the District Court determined that Schoebel waived her right to cross-
examine by failing to appear, either personally or through her attorney at the December 22
hearing on the petition. Schoebel had an opportunity to confront adverse witnesses but
failed to exercise it. A failure to exercise the right of cross-examination is deemed a
waiver thereof. See 81 Am.Jur.2d Witness § 805.
¶20 The judgment of the District Court is affirmed.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ KARLA M. GRAY
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/S/ JAMES C. NELSON
/S/ TERRY N. TRIEWEILER
/S/ JIM REGNIER
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