State Dept. of Lab. Ind. v. Hul ( 1987 )


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  •                                                No.    86-418
    I N THE SUPREME COURT OF THE STATE OF MONTANA
    1987
    STATE O F MONTANA, DEPARTMENT OF LABOR
    a n d INDUSTRY, LABOR STANDARDS D I V I S I O N ,
    ex r e l . , L O U I S P . VETCH and DAR-LA KILLHAM,
    P l a i n t i f f s and R e s p o n d e n t s ,
    -vs-
    DAVID A. HULMAN a / k / a DAVE HULMAN and
    PRUDENCE HULMAN, husband and w i f e , and
    p a r t n e r s d / b / a BRONZE BOOT,
    D e f e n d a n t s and A p p e l l a n t s .
    APPEAL FROM:         D i s t r i c t C o u r t of t h e F i r s t J u d i c i a l D i s t r i c t ,
    I n and f o r t h e C o u n t y of L e w i s & C l a r k ,
    T h e H o n o r a b l e T h o m a s H o n z e l , Judge p r e s i d i n g .
    COUNSEL OF RECORD:
    For A p p e l l a n t :
    John H o u t z , F o r s y t h , M o n t a n a
    For R e s p o n d e n t :
    M a r y A n n e S i m p s o n , L a b o r Standards D i v i s i o n , H e l e n a ,
    Montana
    S u b m i t t e d on B r i e f s :   Dec.   18,   1986
    Filed:     FEB I 3 1989'
    Clerk
    Mr. Justice Frank P. Morrison, Jr. delivered the Opinion of
    the Court.
    This is an appeal from the First Judicial District
    Court's denial of a motion to set aside a default judgment
    entered against Dave and Prudence Hulman, d/b/a Bronze Boot
    .
    (Hulmans)
    Dar-La Killham and Louis Vetch filed wage claims with
    Montana's Commissioner of Labor for wages owed them by their
    former employers, the Hulmans. Killham's claim was for $500,
    while Vetch requested $2,625. Hulmans were served April 10,
    1986, with a notice of opportunity for hearing which
    explained the wage claims, the applicable statutes and their
    right to file a written request for a hearing. Copies of the
    wage claims were attached.        Hulmans allege that they
    contacted the Department of Labor and Industry by telephone
    regarding the wage claims. Hulmans failed to file a written
    request for a hearing.
    On May 7, 1986, an order of default was executed by the
    Department of Labor and Industry.     The order set forth the
    amount of the claims owed, $3,125, and the penalty assessed
    under $ 39-3-206, MCA, $3,125.      The order also explained
    Hulmans' right to judicial review of the proceedings.      No
    review was requested. On June 20, 1986, upon the application
    of the Department, a final order of judgment was entered
    finding the Hulmans' indebted to the Commissioner of the
    Department of Labor in the amount of $6,250, in unpaid wages
    and penalties.     Notice of entry of judgment was filed and
    served on the Hulmans July 2, 1986. On July 18, 1986, the
    Hulmans filed a motion to set aside the default.       It was
    denied August 27, 1986.
    Meanwhile, the Custer County Attorney's office recovered
    bad check restitution from Hulmans as follows:
    July 9, 1986            $210.54 to Killham
    July 11, 1986           $708.26 to Vetch
    Also, Vetch agreed to accept $831 in equipment from Hulmans
    in lieu of part of the wages owed him.          The Department
    acknowledged these payments and credited the $6,250 judgment
    accordingly.
    Hulmans present one issue for our review.        Did the
    District Court abuse its discretion by denying their motion
    to set aside the default judgment?
    A trial judge's determination that a default judgment
    should not be set aside may be overturned upon a showing of
    "slight abuse" of discretion. Lords v. Newman (Mont. 1984) ,
    
    688 P.2d 290
    , 41 St.Rep. 1793. The trial judge did not abuse
    his discretion, even slightly, in this case.
    Montana's Rules of Civil Procedure provide for the
    setting   aside    of   default    judgments   under   certain
    circumstances.    "Good cause1' to set aside the default
    judgment must be shown.     Rule 55(c), M.R.Civ.P.     ~ulmans
    contend that good cause to set aside the default judgment
    exists in this instance for two reasons:           first, the
    pursuance by the State of both administrative and criminal
    proceedings against Hulmans for the same offense;          and
    second, Killham's wage claim for an amount greater than what
    she is owed.
    The State is permitted to proceed with both an
    administrative process and a criminal prosecution against
    Hulmans. Section 39-3-215, MCA, states:
    Authority of county attorney.         Nothing...
    contained [in the Wages and Wage Protection Act]
    shall be construed to limit the authority of the
    county attorney of any county of the state to
    prosecute actions, both civil and criminal, for
    such violations of this part as may come to his
    knowledge or to enforce the provisions hereof
    independently and without specific direction of the
    commissioner of labor.
    Further, the State has not obtained double recovery from
    Hulmans.     The sums obtained as a result of the criminal
    prosecution have been credited against the $6,250 judgment.
    Any factual dispute with respect to monies owed Killham
    and Vetch should have been resolved at a hearing before the
    Commissioner of Labor. Hulmans were given adequate notice of
    the claims against them and of their right to a hearing on
    those claims.       By failing to request a hearing, Hulmans
    waived their right to contest the amount of the wage claims.
    Rule 55 (c), M.R.Civ.P. further provides that a default
    judgment may be set aside for the same reasons a judgment
    following trial on the merits may be vacated. Kootenai Corp.
    v. Dayton (1979), 
    184 Mont. 19
    , 26, 
    601 P.2d 47
    , 50.       Rule
    60(b), M.R.Civ.P., sets forth the reasons for setting aside a
    final judgment, three of which are relied on by Hulmans:
    fraud; satisfaction of judgment; and "any other reason
    justifying relief from the operation of the judgment." Rule
    60 (b)(31, ( 5 ) and (61, MCA.
    The basis for Hulmans' allegation of fraud is the
    State's pursuance of both administrative and criminal
    proceedings against them.       We have already addressed this
    contention.      The State properly pursued both avenues of
    recovery.     The State has not attempted to achieve double
    recovery from the Hulmans.       The State has not attempted to
    intentionally deceive the Hulmans, nor to deprive them of
    their day in court.           There is no fraud warranting the
    setting aside of the default judgment. See Miller v. Miller
    (1980), 
    189 Mont. 356
    , 364-366, 
    616 P.2d 313
    , 318-319.
    Hulmans' contention that the judgment has been satisfied
    is based on allegations of error in the determination of the
    amounts due and owing.      Hulmans waived their opportunity to
    contest the amounts when they chose not to request an
    administrative hearing.      The $3,125 penalty is mandated by
    statute.     Section 39-3-206, MCA.    The initial judgment
    entered against Hulmans in the amount of $6,250 was proper.
    The lower court, relying on the Department's brief, found
    that $1739.80 of the judgment had been satisfied. The actual
    amount to be credited is $1749.80 ($210.54 + $708.26 +
    $831.00).   We therefore amend the final order to reflect the
    true amount due and owing, $4500.20.
    The order is affirmed in all other aspects.
    We concur:
    /
    - .hief Justice &
    ,- (T A
    ?/
    Justic s
    7
    '
    

Document Info

Docket Number: 86-418

Filed Date: 2/13/1987

Precedential Status: Precedential

Modified Date: 10/30/2014