                                                                                        September 9 2008

                                         DA 07-0273

                   IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2008 MT 314



FORD MOTOR CREDIT COMPANY,

              Plaintiff and Appellee,

         v.

TARA A. WELLNITZ,

              Defendant and Appellant.



APPEAL FROM:         District Court of the Thirteenth Judicial District,
                     In and For the County of Yellowstone, Cause No. DV 05-463
                     Honorable Susan P. Watters, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Kristin West, D. Michael Eakin and Jennifer Beardsley, Montana Legal
                     Services Assn., Billings, Montana

              For Appellee:

                     Charles Dendy, Johnson, Rodenberg & Lauinger, Bismarck, North Dakota



                                                 Submitted on Briefs: January 8, 2008

                                                            Decided: September 9, 2008


Filed:

                     __________________________________________
                                       Clerk




Justice John Warner delivered the Opinion of the Court.
¶1        A default judgment was entered in the Thirteenth Judicial District Court, Yellowstone

County, against Tara Wellnitz on September 2, 2005. Wellnitz moved to set aside the

default judgment on January 22, 2007. After two briefing extensions and the expiration of

the 60 day time limit for a decision provided in M. R. Civ. P. 59(d), 60(c), the motion was

deemed denied by the District Court. Wellnitz now appeals the District Court’s denial. We

affirm.

¶2        Wellnitz raises two issues, which we restate as follows:

¶3        1. Must the judgment be reversed because counsel for Ford Motor Credit Company

requested extensions of time within which to file its opposition to the motion to vacate the

default judgment, which left the District Court too little time to rule on the motion?

¶4        2. Did the District Court err by not granting the motion to vacate the default

judgment?

                                        BACKGROUND

¶5        Wellnitz purchased a 1997 Plymouth Neon on August 7, 2000, from Midland Dodge,

Inc. in Billings, Montana. She financed the car purchase through Ford Motor Credit

Company (hereinafter referred to as Ford Motor Credit) in the amount of $7,959. Wellnitz

defaulted on the obligation. Ford Motor Credit repossessed and sold the car. On April 27,

2005, it filed the complaint in this action which asserted a deficiency of $3,339.64 plus 10%

annual interest, accruing after August 7, 2004.

¶6        Ford Motor Credit filed an affidavit of service dated July 21, 2005, which states that

Wellnitz was personally served with summons and a copy of the complaint on that same day,

at 1890 Woody Drive in Billings.
                                                2
¶7     Wellnitz did not appear, and default judgment was entered against her on September

2, 2005. After Ford Motor Credit attempted to execute on the judgment, Wellnitz appeared

pro se by filing a Request for Hearing on Claimed Exemptions. On January 22, 2007,

Wellnitz, through counsel, filed an M. R. Civ. P. 60(b) Motion to Vacate Judgment. Along

with her motion, Wellnitz filed an affidavit in which she averred that she was not served with

the summons and complaint in this action and further that she did not live at the Woody

Drive address listed in the affidavit of service at the time it says she was served there. She

also attached to her motion copies of Housing Authority of Billings move out paperwork,

which stated Wellnitz’s tenancy at 1890 Woody Drive ended on July 30, 2004, a year before

she was served. She also attached a copy of a lease signed by her, dated July 30, 2004, for

an apartment located at 3324 St. Johns Avenue in Billings.

¶8     On February 7, 2007, the parties stipulated to extend the time for briefing the Rule

60(b) Motion to Vacate until February 28, 2007. Ford Motor Credit later moved to extend

the time within which to complete its briefing to March 16, 2007. The District Court granted

the motion. Ford Motor Credit filed its brief on March 15. Along with its brief, Ford Motor

Credit filed an amended affidavit of service, dated January 30, 2007, which stated that

Wellnitz was personally served at 3324 St. Johns Avenue on July 21, 2005. It also filed

supporting documents, dated June 9, 2005, and July 22, 2005, stating that the process server,

GN Account Services, received change of address information on Wellnitz, which reflects

her address change before the July 21, 2005, service date in the original Affidavit of Service.

¶9     The 60 day time limit for ruling on an M. R. Civ. P. 60(b) motion expired on March

23, 2007, without the District Court ruling on Wellnitz’s motion. Thus, the motion was
                                              3
deemed denied at that time. M. R. Civ. P. 59(d), 60(c). Wellnitz filed a reply brief on March

27, 2007.

                                STANDARD OF REVIEW

¶10    As trial on the merits is favored, we review a denial of a motion to set aside a default

judgment for “slight abuse” of discretion. In contrast, we review a grant of a motion to set

aside a default judgment for “manifest abuse” of discretion. Lords v. Newman, 212 Mont.

359, 363-64, 688 P.2d 290, 293 (1984) (quoting Madson v. Petrie Tractor & Equipment Co.,

106 Mont. 382, 388, 77 P.2d 1038, 1040 (1938)). See also Matthews v. Don K Chevrolet,

2005 MT 164, ¶ 9, 327 Mont. 456, ¶ 9, 115 P.3d 201, ¶ 9; Essex Ins. Co. v. Moose’s Saloon,

Inc., 2007 MT 202, ¶ 17, 338 Mont. 423, ¶ 17, 166 P.3d 451, ¶ 17.

¶11    Here, Wellnitz’s Rule 60(b) motion to vacate a default judgment was deemed denied.

We review the denial for slight abuse of discretion.

                                       DISCUSSION

¶12    Issue 1: Must the judgment be reversed because counsel for Ford Motor Credit

requested extensions of time within which to file its opposition to the motion to vacate the

default judgment, which left the District Court too little time to rule on the motion?

¶13    Rule 60(c) incorporates the strict 60 day time limit for a district court to rule on a

motion for relief from a judgment under Rule 60(b). We have consistently enforced this

deadline. “The time limits provided in these rules are mandatory and are strictly enforced.”

Johnson v. Eagles Lodge Aerie 3913, 284 Mont. 474, 478, 945 P.2d 62, 64

(1997) (citing Lerum v. Logue, 198 Mont. 194, 196, 645 P.2d 418, 419 (1982)); see also

Bechhold v. Chacon, 248 Mont. 111, 113, 809 P.2d 586, 588 (1991). In this instance, the
                                              4
District Court granted Ford Motor Credit an extension of time within which to oppose the

motion, leaving itself 7 days to rule on the motion before the 60 day time limit expired.

Wellnitz did not oppose this motion for extension of time. Wellnitz presents nothing that

would indicate that the District Court acted inadvertently when it granted the motion. We

will not presume that the District Court did not know what it was doing. Attorneys are

charged with knowing the Rules of Civil Procedure. It is the responsibility of a litigating

party to keep track of briefing schedules and oppose a motion for an extension of time should

it feel that granting the motion would not leave enough time for the district court to make a

ruling before the strict time limit imposed by M. R. Civ. P. 59(d) expires.

¶14    Wellnitz also complains that the extension granted to Ford Motor Credit did not leave

enough time for her to file a reply brief. However, she cites us to no rule which is violated.

Thus, we do not address this assertion. See State v. Smith, 2008 MT 7, ¶ 19, 341 Mont. 82,

¶ 19, 176 P.3d 258, ¶ 19.

¶15    Under these circumstances, we decline to hold that the District Court slightly abused

its discretion in not granting M. R. Civ. P. 60(b) relief simply because it granted an extension

of time within which to oppose the motion.

¶16    Issue 2: Did the District Court err by not granting the motion to vacate the default

judgment?

¶17    Wellnitz’s motion under M. R. Civ. P. 60(b) was filed more than 60 days after the

default judgment in question was entered. Thus, we assume Wellnitz intended to move for

relief under 60(b)(6). Rule 60(b)(6) provides that the court may grant relief from a final

judgment for “any other reason justifying relief from the operation of the judgment.” Once
                                               5
the district court denies a Rule 60(b) motion, it loses jurisdiction to further consider the

motion. Maulding v. Hardman, 257 Mont. 18, 22, 847 P.2d 292, 295 (1993). However,

under § 3-2-204, MCA, this Court may still review proceedings of the trial court that “affect

the parties’ substantial rights.” Maulding, 257 Mont. at 22-23, 847 P.2d at 295 (citing

United Farm Agency v. Blome, 198 Mont. 435, 438, 646 P.2d 1205, 1207 (1982).

¶18    To obtain relief under Rule 60(b)(6) a movant must establish three elements: “(1)

extraordinary circumstances; (2) the movant acted to set aside the judgment within a

reasonable period of time; and (3) the movant was blameless.” Essex Ins. Co., ¶ 25 (citing in

re Paternity of C.T.E.-H, 2004 MT 307, ¶ 45, 323 Mont. 498, ¶ 45, 101 P.3d 254, ¶ 45).

¶19    As the 60 day time limit expired before Wellnitz filed a reply to Ford Motor Credit’s

opposition to her motion to vacate, we do not consider this reply in our analysis of whether

the District Court slightly abused its discretion.

¶20    The District Court had before it Wellnitz’s affidavit that she was not served with

process. The record reasonably reflects that she avers the original affidavit of service is

erroneous because she had moved away from the address it said she was served at almost a

year earlier. In contrast, the District Court had before it both the original affidavit of service

and a later, amended affidavit from the process server which states that Wellnitz was indeed

personally served at her new address, and that the stated place of service in the original

affidavit was a typographical error. A copy of a request by the process server for change of

address information on Wellnitz, dated June 9, 2005, which was before the time of service,

was also filed with Ford Motor Credit’s opposition to the motion.

¶21    Whether Wellnitz had been served with process in this action before the default
                                                6
judgment was entered is the only circumstance presented which could justify relief from the

judgment. This is a question of fact which the District Court answered by denying the

motion. Wellnitz presents nothing on appeal which indicates that the District Court erred in

its determination. No extraordinary circumstances are presented which would justify this

Court in reversing the decision of the District Court and setting aside the default judgment.

¶22    Affirmed.

                                                  /S/ JOHN WARNER

We Concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE




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