                                                                                    August 18 2015


                                    DA 15-0094
                                                                                   Case Number: DA 15-0094

            IN THE SUPREME COURT OF THE STATE OF MONTANA

                                    2015 MT 245



IN THE MATTER OF THE ESTATE OF:

HOWARD H. MILLS,

         Deceased.



APPEAL FROM:      District Court of the Fifth Judicial District,
                  In and For the County of Madison, Cause No. DP-29-14-19
                  Honorable Loren Tucker, Presiding Judge


COUNSEL OF RECORD:

           For Appellant:

                  David M. Mills (Self-Represented), Newburgh, New York

           For Appellee:

                  John Warren, Davis, Warren & Hritsco, Dillon, Montana



                                             Submitted on Briefs: July 1, 2015
                                                        Decided: August 18, 2015


Filed:

                  __________________________________________
                                    Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1     David Mills appeals from an order of the Fifth Judicial District, Madison County,

denying his motion to set aside the default entered against him. We reverse, and address

the following issue:

¶2     Whether the District Court abused its discretion when it denied David’s motion to
       set aside his default.

                                    BACKGROUND

¶3     Howard H. Mills (hereinafter “Decedent”) died on June 21, 2014. He had three

sons: Howard W., John, and David. On August 21, 2014, Howard W. (hereinafter

“Howard”), petitioned for formal probate of Decedent’s will, determination of heirs, and

appointment of a personal representative. The District Court scheduled a hearing for

September 22, 2014. On August 28, 2014, Howard sent notices of the hearing to all

interested parties, including his brothers, and filed proof of mailing the notices the same

day. The notice informed the parties that a hearing on the petition would be held in

Virginia City, Madison County, on September 22, 2014, “at which time all interested

persons may appear and object.”

¶4     On September 8, 2014, David Mills filed a detailed letter in response to the

petition. The District Court asserts that the letter was never served on Howard or his

counsel; however, the record contains a copy of the certified mail receipt to Howard’s

counsel. On September 22, 2014, the District Court held a hearing, at which Howard

appeared with his attorney and John and David appeared telephonically. John and David,

who reside out of state, were both unrepresented and David continues in that capacity in

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this appeal. The District Court informed the parties of the procedure for filing objections

and ordered that any objections be filed within 14 days, by October 6, 2014.

¶5     The original minute entry from the September 22, 2014 hearing erroneously stated

that “Howard H. Mills,” the Decedent, appeared in court. The District Court clerk

entered an amended minute entry on October 6, 2014, that correctly stated that Howard

W. Mills, not Howard H. Mills, was present in the courtroom. Additionally, the original

minute entry did not refer to the 14-day extension. That omission was also added to the

amended minute entry.

¶6     Neither John nor David filed an objection by the District Court’s deadline of

October 6, 2014. On October 15, 2014, Howard moved the District Court, pursuant to

M. R. Civ. P. 55, for entry of default against John and David for failure to object to the

petition. The District Court set a hearing on the motion for November 10, 2014, and

notified the parties.

¶7     Prior to the hearing, and before an actual default was entered, David and John each

filed motions to set aside the default. On October 20, David filed a document objecting

to the default, arguing that the original minute entry did not include the 14-day time limit

and the amended version arrived after the time for objecting had passed. On November

7, 2014, David filed a supplementary motion to set aside the entry of default, asserting

that the petition violated the Montana Uniform District Court Rules for failure to have a

cause number listed on the petition.

¶8     The District Court held a hearing on November 10, 2014. Although they were

given notice, neither John nor David was present at the hearing. After the hearing, the

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court issued an “order on procedure,” restating the events of the case. The District Court

noted that neither John nor David filed anything within the allotted time, despite the

additional 14 days granted after the brothers failed to file objections by the September 22,

2014 hearing.      The District Court also observed that the “personal representative

[Howard] moved for relief by default” when John and David failed to file objections, and

that John and David filed separate motions to set aside the default.1 Additionally, the

court noted that while pro se litigants are afforded “some latitude in connection with

technical rules . . . their lack of information or knowledge may not interfere to prejudice

the opposing party.” The District Court then ordered the personal representative to

respond to the respective motions to set aside the default.

¶9     On December 1, 2014, after the parties briefed the issue, the District Court issued

an order denying John and David’s requests to set aside the defaults. The District Court

first addressed the brothers’ arguments pertaining to the minute entry, noting that a

minute entry has no authority and is “merely an observer’s synopsis of court

proceedings.” The District Court reiterated that it had specifically, and in particular

detail, explained the importance of the deadline to each objector during the hearing and

that any omissions from the minute entry did not excuse John and David’s failure to

object. Additionally, the District Court rejected the cause number argument, finding it

“wholly unpersuasive” given that all parties referenced the number in various pleadings.




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          Although there is no actual docket entry for the entry of default, both the parties and the
District Court proceeded as though a default was entered against John and David.
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¶10    Finally, the District Court considered whether there was good cause to set aside

the default, noting the three factors pertinent to this analysis: willfulness, prejudice, and

meritorious defense. Using this framework, the court concluded that the motions to set

aside the default should be denied. The District Court found that John and David did not

respond to the petition, neglected to appear at the hearing, failed to respond when

provided an extension, and offered only “frivolous and irrelevant” explanations for their

shortcomings. The District Court further held that Howard was prejudiced “by being

required to appear in Court for two separate hearings” and to respond to “specious and

frivolous objections.” Lastly, the Court noted that neither John nor David had offered

any meritorious defenses to the petition.

¶11    After denying the motions to set aside the default, the District Court scheduled a

hearing on the petition for December 29, 2014, and then rescheduled it for January 12,

2015. Neither brother appeared. At that time, the District Court appointed Howard as

personal representative and admitted the will to formal probate. David appeals from the

District Court’s order admitting the will to probate and the court’s denial of his motion to

set aside the entry of default.

                                  STANDARD OF REVIEW

¶12    This Court generally disfavors default judgments because of our policy that cases

should be tried on the merits. Engelsberger v. Lake Cnty., 2007 MT 211, ¶ 8, 339 Mont.

22, 167 P.3d 902. The party seeking to set aside the judgment bears the burden of proof.

Engelsberger, ¶ 8. We review a court’s decision to deny a motion to set aside a default

judgment for only a slight abuse of discretion. Engelsberger, ¶ 8. A district court’s

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discretion to set aside an entry of default should be liberally exercised to facilitate a trial

on the merits. McClurg v. Flathead Cnty. Comm’rs, 188 Mont. 20, 23, 610 P.2d 1153,

1155 (1980).

                                       DISCUSSION

¶13    Issue: Whether the District Court abused its discretion when it denied David’s
       motion to set aside his default.

¶14    Title 72, Chapter 3 of the Montana Code Annotated governs the probate and

administration of estates. A formal probate, as was initiated by Howard in this case, is

commenced by petitioning the court. Section 72-3-301, MCA. After a petition is filed,

the district court schedules a hearing on the petition and the petitioner must give notice of

the hearing to certain interested persons. Section 72-3-305(1), (2), MCA. Any party who

opposes the probate of the will must state his objections to the probate in the pleadings.

Section 72-3-308, MCA. If no objections are filed, the court may enter judgment based

on the strength of the pleadings. Section 72-3-307, MCA. If the will is contested, the

proponent of the will must show that the will was duly executed. Section 72-3-310,

MCA. The party contesting the will has the burden of establishing lack of testamentary

intent or capacity, undue influence, fraud, duress, mistake, or revocation.            Section

72-3-310, MCA.

¶15    If the court finds that the will is valid and unrevoked, the court must issue an order

for the formal probate of the will. Section 72-3-313(1), MCA. The order “is final as to

all persons with respect to all issues concerning the decedent’s estate that the court

considered or might have considered incident to its rendition relevant to the question of


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whether the decedent left a valid will and to the determination of heirs.”           Section

72-3-317, MCA. However, the order is appealable and may be modified or vacated for

good cause shown. Sections 72-3-317 and -318, MCA.

¶16    As noted, Howard asked the District Court to enter a default. The court and

parties construed David’s failure to object to the petition as a default and proceeded under

M. R. Civ. P. 55, applying a three-factor analysis for assessing good cause.

¶17    On appeal, David asks this Court to reverse the District Court’s denial of his

motion to set aside his default. A court may set aside an entry of default for good cause.

M. R. Civ. P. 55(c); Engelsberger, ¶ 12. Whether “good cause” exists is an equitable

determination, evaluated by the consideration of three factors:

       (1) whether the default was willful, (2) whether the plaintiff would be
       prejudiced if the default should be set aside, and (3) whether the defendant
       has presented a meritorious defense to plaintiff’s claim.

Engelsberger, ¶ 12; Essex Ins. Co. v. Jaycie, Inc., 2004 MT 278, ¶ 10, 323 Mont. 231, 99

P.3d 651. The court should weigh all three factors before making the decision to set

aside a default. Engelsberger, ¶ 17. The court must balance the defendant’s interest in

obtaining a decision on the merits against the public and the court’s interest in the orderly

and timely administration of justice. Engelsberger, ¶ 12.

¶18    On appeal, David presents several arguments for setting aside his default. After

reviewing the letter David submitted on September 8, 2014, it is difficult to conclude that

the “default” was willful or that he failed to raise a meritorious defense. As noted, the

record contains a copy of the certified mail receipt to Howard’s counsel. While not in

conventional pleading form, David’s letter fully explains that their father had a prior will

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and his objections and concerns about the new will and the appointment of Howard as

executor.

¶19    David has from the commencement of these proceedings challenged Howard’s

appointment as executor and his father’s soundness of mind at the time the new will was

executed. David has complained that the former wills of his father from 2012 and 2013

were mysteriously lost by his father’s attorney, thus prompting the execution of a new

and revised will less than seven weeks before his failing father passed away. David’s

earnest desire to contest the will is simply inconsistent with a finding that he willfully

chose to ignore the very procedures that would move his dispute toward resolution.

¶20    Contestants of a will are entitled by statute and required by case law to raise issues

of lack of testamentary capacity and/or undue influence in a probate proceeding. Section

72-3-310, MCA; In re Estate of Mead, 2014 MT 264, ¶ 27, 376 Mont. 386, 336 P.3d 362

(“[t]he party contesting a will bears the burden of establishing undue influence”); In re

Estate of Lightfield, 2009 MT 244, ¶ 28, 351 Mont. 426, 213 P.3d 468 (“[c]ontestants of

a will have the burden of establishing lack of testamentary intent or capacity, undue

influence, fraud, duress, mistake, or revocation”). David’s September 8 letter reflects an

evident intent to contest the will on grounds of lack of testamentary capacity. Whatever

the actual merits of David’s argument, he clearly raised a meritorious defense.

¶21    In sum, we conclude that because two of the three Engelsberger “good cause”

factors were satisfied by David, the District Court did slightly abuse its discretion by

determining that David failed to establish good cause for not filing timely and potentially

meritorious objections to the initiation of the formal probate proceedings.

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¶22    Reversed and remanded for further proceedings consistent with this Opinion.



                                                  /S/ MIKE McGRATH


We Concur:

/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ PATRICIA COTTER
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE



Justice Jim Rice, concurring.

¶23    I concur with the Court’s determination to reverse and set aside the default entered

against David, as it is necessary under this Court’s precedent. Recently, we reversed and

set aside the default and default judgment entered in Hall v. Hall, 2015 MT 226, ___

Mont. ___, ___ P.3d ___, a case that offers abundant hope for David and other parties

who fail to properly plead and participate in litigation.

¶24    In Hall v. Hall, Donald Hall was served with a summons and complaint and sent

letters in response, which the District Court held were insufficient to constitute a

pleading, and ordered Hall to file an answer. Hall, ¶¶ 4, 32. Hall failed to do so, and

three months later, the plaintiff moved for entry of default. Hall was served with this

motion but did not respond, and his default was entered. Hall, ¶¶ 4, 33. Litigation with

the other parties continued and, over two and a half years later, Hall was served with

plaintiff’s motion for entry of default judgment against him. Hall did not respond and

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default judgment was entered against him. Hall, ¶¶ 9, 38. He did not appeal from the

judgment. Six months later, plaintiff initiated a writ of execution for seizure of Hall’s

property to satisfy the judgment, which prompted Hall to provide further correspondence

that the District Court deemed to be a motion to set aside the default judgment, and

denied. Hall did not appeal from this denial. Hall, ¶¶ 11, 39. Almost three years after

that, Hall appealed from the District Court’s denial of his motion for a hearing on

exemptions from execution. Hall, ¶¶ 12, 40. At that point, over seven years after the

default was entered, and over five years after the default judgment was entered, this Court

deemed Hall’s appeal to actually be an appeal from the judgment and granted him full

relief from the entry of default and default judgment. Hall, ¶ 25.

¶25    The Court’s extreme makeover of the halls of justice in that case undeniably

compels relief here, both by stare decisis and by any measure of the equal application of

the law. David’s actions here are but a scratch in the paint compared to the total wreck

Donald Hall made of the rules of civil and appellate procedure.



                                                 /S/ JIM RICE




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