State Ex Rel. Department of Health & Environmental Sciences v. Reese , 50 State Rptr. 925 ( 1993 )

No. 91-581
IN THE SUPREME COURT OF THE STATE OF MONTANA
THE STATE OF MONTANA ex rel.
DEPARTMENT OF HEALTH AND
ENVIRONMENTAL SCIENCES,
Plaintiff and Respondent,
v.
DONALD REESE,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Joel E. Roth, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Michael R. Tramelli, Attorney at Law,
Great Falls, Montana
For Respondent:
Patrick L. Paul, Cascade County Attorney,
Dean D. Chisholm, Deputy County Attorney,
Great Falls, Montana
Submitted on Briefs: May 20, 1993
Decided: August 17, 1993
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Appellant Donald Reese appeals from an order of the Eighth
Judicial District Court, Cascade County, lifting a stay of its
order and ordering Reese to remove all but three junk vehicles from
certain property pursuant to 5 75-10-541, MCA (1987).
We affinn.
Reese presents three issues for this Court's consideration
which we consolidate as follows:
1. Should the default judgment entered by the clerk of court
on May 11, 1989, against appellant be set aside?
2. Did respondent Department of Health and Environmental
Sciences (DHES) violate Reese's due process rights by not providing
him with notice of the March 6, 1992, hearing?
On April 14, 1989, the DHES, acting through the Cascade County
Attorney's office, filed a complaint against Reese for maintaining
a motor vehicle wrecking facility, or motor vehicle graveyard,
without a license issued by the DHES. Reese was served with the
complaint on April 19, 1989.
On May 9, 1989, Reese filed a letter addressed to the court
and stated that "[tlhe automobiles in question will be shielded
from public view within 30 days." On May 11, 1989, the DHES
applied for entry of default judgment pursuant to Rule 55,
M.R.Civ.P., and the clerk of court entered the default on the same
day. Also, the DHES filed a motion with the court for default
judgment .
Hearing was held on June 8, 1989, with the Deputy County
Attorney representing the DHES and Reese appearing pro se. On
June 21, 1989, the Court entered its findings of fact, conclusions
of law, and order for default judgment. On May 14, 1990, the court
held a hearing to determine the appropriate relief to be granted.
On May 17, 1990, the court enjoined Reese from having more than
three junk vehicles on the property and ordered Reese to remove
them within 30 days. On June 15, 1990, Reese appealed the May 17,
1990, order of the District Court.
On November 13, 1990, this Court dismissed the appeal with
prejudice because Reese did not prosecute his appeal. On
February 5, 1991, the DHES motioned the District Court for a review
hearing in the matter. The hearing was held on March 6, 1991.
During this hearing, the court reiterated its order of May 17,
1990, and ordered Reese to remove all junk vehicles from the
property by March 15, 1991. Reese failed to comply with the order.
On March 25, 1991, the DHES removed 39 of the 50 or more vehicles
on Reeselsproperty.
On March 27, 1991, Reese filed a motion to stay execution of
the court's order pending a hearing, which was granted. Hearing
was held on the issue on August 30, 1991. On September 4, 1991,
the court lifted the stay and ordered Reese to remove all junk
vehicles except three. It is from this order that Reese appeals.
I.
Should the default judgment entered by the clerk of court on
May 11, 1989, against Reese be set aside?
3
Reese contends that the default judgment of May 11, 1989,
should be set aside pursuant to Rule 60(b), M.R.Civ.P. We
disagree.
Rule 12, M.R.App.P., states that I1[t]he dismissal of an appeal
is in effect an affirmance of the judgment or order appealed from,
unless the dismissal is expressly made without prejudice to another
appeal.It
In United Bank of Pueblo v. Iverson (1974), 164 Mont. 473, 525
P.2d 21, the district court granted an initial motion for summary
judgment which defendants appealed to this Court. The appeal was
subsequently dismissed by request of the defendants. The
defendants later filed a motion to vacate the summary judgment.
The district court denied the motion for failure to prosecute.
Defendants filed a second motion 18 months later based on
Rule 60(b), M.R.Civ.P. The district court deniedthat motion also.
On appeal this Court affirmed the denial stating:
The refusal cannot be revived for a second review by the
filing of a second identical motion to vacate 18 months
later. The first denial of defendants1 motion to vacate
for the reason defendants failed to prosecute the same
became the law of the case and binding on the parties.
The matters necessarily adjudicated therein became res
judicata. [Citation omitted.]
Iverson, 525 P.2d at 23.
In Liblin v. Huffine (1950), 124 Mont. 361, 224 P.2d 144, the
district court sustained defendants* demurrer to plaintiffs'
amended complaint dismissing plaintiffs* complaint. Plaintiffs
appealed the decision to this Court. This Court dismissed the
appeal for failure to prosecute. Six months later, plaintiffs
filed another appeal. This Court stated:
Where as here an appellate court had unqualifiedly
affirmed a judgment of the trial court, it would
obviously and unnecessarily protract litigation to allow
further or successive appeals from the judgment so
affirmed. Such successive appeals in fact would be
appeals attempted to be taken from the decision of the
appellate court itself.
Liblin, 224 P.2d at 146.
Here, the District Court entered a default judgment and Reese
appealed. Reese failed to prosecute his appeal by ordering the
necessary transcripts. upon motion of the DHES, and without
objection by Reese, this Court dismissed the appeal with prejudice.
The dismissal affirmed the order of the District Court and became
the law of the case. We affirm the decision of the District Court
in refusing to set aside its May 11, 1989, default judgment.
Did the DHES violate Reese's due process rights by not
providing him with notice of the March 6, 1992, hearing?
Reese argues that he was denied procedural due process under
the takings clause of the Fourteenth Amendment of the United States
Constitution. The crux of procedural due process is that some form
of hearing with notice of its availability must be had before a
person is finally deprived of a property interest. Kennerly v.
United States (9th Cir. l983), 721 F.2d 1252, 1257. The hearing on
March 6, 1992, did not have any effect on Reese's property
interests because his proprietary interests had already been
litigated. With this Court's dismissal of the appeal, the DHES had
full authority to act upon the District Court's order of May 17,
1990. The purpose of the March 6, 1992, hearing was to reiterate
and inform Reese of the legal effect of the court's order. It did
not contemplate any substantive rights of Reese. "Due process does
not require a new hearing on matters that are res judicata." In
the Matter of the Estate of Counts (1985), 217 Mont. 350, 355, 704
P.2d 1052, 1055.
We hold that the DHES did not violate Reesels due process
rights.
The DHES's request for damages pursuant to Rules 32 and 33,
M.R.App.P., is denied.
We affirm the decision of the District Court.
Justice
We concur:
August 17, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
MICHAEL R. TRAMELLI
Attorney at Law
104 2nd St. South, Suite 201
Great Falls, MT 59405
PATRICK PAUL, County Attorney
Dean D. Chisholm, Deputy
Cascade County Courthouse
Great Falls, MT 59401
PETE FRAZIER
CountylCity Health Department
1130 17th Avenue South
Great Falls, MT 59405
ED SMITH
CLERK OF THE SUPREME COURT