                                            No. 02-781

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                        2004 MT 145


STEPHEN CAPLIS and HOLLYWOOD
TRAILER COURTS, INC., a Montana Corporation,

              Plaintiffs and Respondents,

         v.

JAMES P. CAPLIS and JOHN M. CAPLIS,

              Defendants and Appellants.



APPEAL FROM:         District Court of the Fourth Judicial District,
                     In and for the County of Missoula, Cause No. DV-00-821
                     The Honorable John S. Henson, Judge presiding.



COUNSEL OF RECORD:

              For Appellants:

                     Perry J. Schneider, Milodragovich Dale Steinbrenner & Binney, Missoula,
                     Montana

              For Respondents:

                     W. Carl Mendenhall, Sean M. Morris, Worden Thane & Haines, Missoula
                     Montana



                                                         Submitted on Briefs: March 20, 2003

                                                                   Decided: June 8, 2004
Filed:



                     __________________________________________
                                       Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1     Plaintiffs and respondents, Stephen Caplis and Hollywood Trailer Courts, Inc., filed

a Complaint in the Montana Fourth Judicial District Court, Missoula County, alleging that

the defendants and appellants, James P. Caplis (James) and John M. Caplis (John), abused

their positions as directors, officers and shareholders of Hollywood Trailer Courts, Inc. The

defendants did not timely answer and the Clerk of the District Court entered their first

default. This was followed by the entry of a default judgment.

¶2     Upon the defendants’ request, the District Court set aside the default judgment and

the defendants thereafter filed their Answers, Counterclaims and Demand for a Jury Trial.

The defendants subsequently failed to attend a status conference, a show cause hearing to

show why their second default should not be entered and the hearing prior to entry of final

judgment. The District Court thereafter entered the defendants’ second default judgment.

It then denied their later motion made pursuant to Rule 60(b), M.R.Civ.P., to dismiss the

second default judgment. The defendants appeal the District Court’s denial of their Rule

60(b), M.R.Civ.P. motion and its dismissal of their counterclaims. We affirm.

¶3     We address the following issues on appeal:

¶4     1. Did the District Court abuse its discretion in denying Appellants’ Motion for

Relief from Judgment pursuant to Rule 60(b), M.R.Civ.P.?

¶5     2. Did the District Court err in dismissing Appellants’ counterclaims with prejudice?




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                                     BACKGROUND

¶6     At the time Stephen Caplis (Stephen) and Hollywood Trailer Courts, Inc., filed the

Complaint in this matter, Stephen was an officer, director and shareholder of Hollywood

Trailer Courts, Inc., a Montana Corporation located in Missoula, Montana. Stephen and his

two brothers, James and John, were at all times relevant to this action the three sole

shareholders of Hollywood Trailer Courts.

¶7     The plaintiffs filed their Complaint on October 23, 2000. Neither James nor John

responded to the Complaint and the plaintiffs thereafter requested entry of their default. The

Clerk of the District Court for the Fourth Judicial District entered default judgment against

the defendants on December 22, 2000, and on January 9, 2001, James and John filed a

consolidated motion and brief to set aside the default, alleging inability to retain counsel

subsequent to service and lack of personal service on James. On February 27, 2001, the

District Court, finding good cause, set aside the default judgment and James and John, on

March 21, filed separate but identical Answers, including five counterclaims against

Stephen.

¶8     On November 21, 2000, the plaintiffs served their first discovery requests. Although

John at no time answered this or any subsequent discovery request, James produced a

substantial amount of documents. However, he failed to produce sufficient documents to

account for over $150,000 in corporate assets. Among other incomplete discovery answers,

James also failed to note the existence of various corporate bank accounts and likewise failed

to declare the account and check numbers for checks that were not produced.

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¶9     The plaintiffs served their second discovery requests on August 9, 2001. Neither

James nor John answered any part of the second request for discovery. Thereafter, on

October 9, 2001, the plaintiffs filed a motion to compel the defendants’ responses. Prior to

ruling on the plaintiffs’ motion to compel, the defendants’ attorney filed a motion to

withdraw as attorney of record and the District Court granted the request in an Order dated

October 22, 2001. In its order releasing the defendants’ attorney of record, the District Court

stated that the defendants “shall receive a copy of this order by mail addressed to the

following address: John M. Caplis, c/o James P. Caplis, 303 Fitchburg Square, P.O. Box

249, Folsom, CA. 95630; and James P. Caplis, 303 Fitchburg Square, P.O. Box 249, Folsom,

CA. 95630.” The District Court further ordered that James and John

       are hereby given notice that, unless another attorney is made of record in
       regard to this matter, all further notices pertaining to the litigation shall be
       deliverable to them at the above-referenced address and shall be effective as
       service upon him for all matters regarding the above-entitled litigation.

In a separate order issued that same day, the District Court ordered that the defendants

appoint another attorney or, failing that, appear in person at a status conference set for

November 27, 2001. The order warned that, absent their presence or their attorney’s

presence, the action may proceed to judgment.

¶10    The defendants failed to respond to plaintiffs’ motion to compel. Thus, on November

7, 2001, the District Court issued an Order granting the plaintiffs’ motion to compel

responses to discovery. The defendants then failed to appear, either in person or through

counsel, at the November 27, 2001, status conference. The District Court thereafter issued


                                              4
an Order, dated December 11, 2001, giving the defendants twenty days from the date of the

order to show cause why their default should not be taken and the case proceed to judgment.

The District Court mailed the order to the defendants at the Folsom, California, address

listed in its October 22 Order.

¶11    When the defendants failed to file further responsive pleadings within or subsequent

to the twenty-day time limit, the plaintiffs, on January 2, 2002, filed a request for entry of

default, the pleadings being again mailed to the Folsom, California, P.O. Box listed in the

District Court’s October 22 Order. On January 3, the District Court entered the defendants’

second default. The District Court conducted a hearing on February 26, 2002, and, after

receiving exhibits and hearing testimony, entered findings of fact and conclusions of law

granting the plaintiffs the relief requested in their Complaint. On March 11, the plaintiffs

served the defendants by mail with a notice of entry of the findings and conclusions. The

District Court entered final judgment on March 28, 2002, and the plaintiffs served

defendants, again by mail at the Folsom, California, P.O. Box, with a notice of entry of

judgment on April 3, 2002.

¶12    The defendants thereafter retained counsel again, and, on April 24, filed a motion for

relief from judgment and a request for trial on the their counterclaims. In their pleadings the

defendants admitted receiving the plaintiffs’ Rule 10(b), M.R.Civ.P., notice, via certified

mail at the Folsom, California, P.O. Box, and acknowledged they were aware that a status

conference had been set for November 27, 2001.

¶13    In a brief supporting their motion, James stated that he had changed his P.O. Box and

                                              5
that he did not request a change of address because he did not anticipate further mail being

sent to that address “relevant to his ongoing activities.” However, James later noted in his

brief that he “was obviously mistaken with respect to any notices related to the subject of

litigation sent to that address.” Nevertheless, James argued to the District Court that,

irrespective of his mistake,

       it does not change the fact that [he] did not have any mail forwarded to his
       new post office box, P.O. Box 192 by the Folsom California Post Office.
       Moreover, despite Plaintiffs’ contentions to the contrary, it also does not
       change the fact that [he] terminated the use of P.O. Box 249 and failed to
       receive the notices regarding ongoing legal proceedings in the subject
       litigation sent to that address by Plaintiffs’ counsel.

¶14    On August 19, 2002, the District Court in a summary order denied the defendants’

motion for relief from judgment. On August 28, the defendants sought leave to file a motion

to dismiss their counterclaims without prejudice, and a request for entry of final judgment.

They argued that, because the District Court’s summary order and final judgment did not

specifically dispose of or refer to their counterclaims, it was interlocutory in nature and non-

appealable. The District Court denied the defendants’ motion stating:

       This was simple judicial economy, as there was no need to address those
       matters in light of Defendants’ default. However, by dint of their default, this
       Court intended and does now assert that the Judgment entered against them
       implicitly ruled on all issues in favor of Plaintiff. All of Defendants’
       counterclaims were dismissed with prejudice by that Judgment.

¶15    The defendants appeal from the District Court’s October 7, 2002, Order.




                                               6
                                STANDARD OF REVIEW

¶16    In reviewing a default judgment, we are guided by the principle that every litigated

case should be decided on its merits; judgments by default are not favored. Sun Mountain

Sports, Inc., v. Gore, 2004 MT 56, ¶ 10, 320 Mont. 196, ¶ 10, 85 P.3d 1286, ¶ 10. When

appeal is from a denial of a motion to set aside a default judgment, our standard of review

is that only a slight abuse of discretion need be shown to warrant reversal. Gore, ¶ 10. The

party seeking to set aside a default has the burden of proof. Gore, ¶ 10.

                                       DISCUSSION

¶17 Did the District Court abuse its discretion in denying Appellants’ Motion for Relief
from Judgment pursuant to Rule 60(b), M.R.Civ.P.?

¶18    Rule 60(b), M.R.Civ.P., provides in part:

       On motion and upon such terms as are just, the court may relieve a party or a
       party’s legal representative from final judgment, order, or proceeding for the
       following reasons: (1) mistake, inadvertence, surprise, or excusable neglect;
       . . . . (6) any other reason justifying relief from the operation of the judgment.

¶19    The appellants argue that the District Court abused its discretion in denying their

motion for relief from judgment and their motion to dismiss their counterclaims without

prejudice, because the Court received, but refused to consider, evidence sufficient to support

that relief. The appellants essentially argue, citing Fennessy v. Dorrington, 2001 MT 204,

306 Mont. 307, 32 P.3d 1250, that when a trial court receives any evidence to support a Rule

60(b) motion, that the issuance of a summary order is an abuse of discretion because such

order does not reveal the court’s reasoning nor the extent to which the court considered the

evidence.

                                               7
¶20    James argues that the District Court did not consider his allegation that, as a result of

opening a new post office box associated with his new home address, he believed he no

longer needed to check his other post office box because it was associated with his old home

address and another business, Beacon Financial, Inc. He further argues that the District

Court did not take into account his allegations that he had numerous conversations with

Stephen regarding possible settlement options and that he had received correspondence from

Stephen at his home address rather than at his post office box. James argues that this

information established circumstances which would induce a reasonable person to believe

that the parties were attempting to settle the matter without resort to further litigation, thus

justifying their failure to hire an attorney or attend hearings.

¶21    Third, James argues that the District Court failed to consider that the respondents did

not inform James, either verbally, via service at James’ home address or via certified mail

at James’ old post office box, that litigation was ongoing. James contends that this failure

demonstrates concealment, fraud, misrepresentation and misconduct on the part of Stephen,

and shows he was attempting to manipulate the judicial system to his own benefit and to the

detriment of the appellants’ right to defend themselves.

¶22    We first conclude that the appellants’ reliance on Fennessy v. Dorrington is

misplaced. In Fennessy, the defendant filed a Rule 12(b)(6), M.R.Civ.P., motion to dismiss.

The district court ruled on the motion prior to the expiration of plaintiff’s ten-day time limit

to respond and prior to the plaintiff receiving the motion, incorrectly deeming the motion

well-taken because the plaintiff had not filed a response within seven days. In spite of this

                                               8
evidence, the court denied the plaintiff’s motion to reconsider. Fennessy, ¶ 4. We reversed,

concluding that the district court abused its discretion when it failed to consider that the

plaintiff had not yet received the motion nor had the plaintiff’s time to respond expired.

Fennessy, ¶ 14. We did not, as defendants argue, hold in Fennessy that summary orders

from a district court constitute an abuse of discretion where the moving party submits

evidence on its motion for relief from judgment.

¶23    Irrespective of whether a district court enters a summary order or an order with a

detailed memorandum, this Court’s standard of review remains the same: whether the

district court abused its discretion in refusing to set aside the default judgment. Gore, ¶ 10.

We conclude that the District Court did not abuse its discretion in refusing to set aside the

second default judgment.

¶24    Under Montana law litigants have a duty to monitor litigation, see Griffin v. Scott

(1985), 218 Mont. 410, 710 P.2d 1337, and while default judgments are not favored, this

Court has held that default judgments are proper upon facts establishing careless conduct or

willful ignorance. See Roberts v. Empire Fire and Marine Ins. Co. (1996), 278 Mont. 135,

140, 923 P.2d 550, 553-54 (holding that improper handling of documents by management-

level supervisor in charge of claims did not constitute excusable neglect); In re Marriage of

Castor (1991), 249 Mont. 495, 499, 817 P.2d 665, 667 (“Mistake,” “inadvertence,” and

“excusable neglect” require some justification for an error beyond mere carelessness or

ignorance of the law on the part of the litigant or his attorney) (citing Lomas and Nettleton

Co. v. Wiseley (7th Cir. 1989), 884 F.2d 965, 967).

                                              9
¶25    In the instant case, the appellants knew that litigation was proceeding, knew that a

status conference had been scheduled for November 27, 2001, failed to appear personally

or to hire an attorney to appear on their behalf, and failed to notify the district court or the

opposing party of their intention to miss the conference. The appellants were also made

aware in the District Court’s October 22, 2001, Order that service upon the post office box

listed in the Order would be deemed effective service for all matters regarding the present

litigation. James apparently ceased checking his mail at that post office box without

submitting a change of address or notifying the District Court. Such actions do not

constitute excusable neglect.

¶26    We also find disingenuous the appellants’ argument that ongoing settlement

discussions would induce a reasonable person to conclude that he need not monitor pending

litigation, or would justify a party’s failure to hire an attorney to protect a litigant’s interests.

It is typical for parties to entertain settlement offers or to engage in settlement discussions

during litigation, but such discussions are not an excuse to neglect ongoing litigation.

¶27    Likewise, it is immaterial that Stephen did not verbally inform James of each

document the respondents filed in the District Court or that Stephen did not serve James at

his home address or via certified mail at his old post office box. Pursuant to the District

Court’s October 22, 2001, Order, service was properly made on the appellants via mail at

the post office box listed in the Order and James was aware or should have been aware that

such service would not change absent notification to the court. Further, it would be

nonsensical to conclude that Stephen’s act of serving all documents as required in the

                                                 10
District Court’s Order constituted concealment, fraud, misrepresentation or misconduct. Nor

does such lawful service reveal an attempt by Stephen to manipulate the judicial system or

deny the appellants the right to defend themselves.

¶28    Based on the foregoing we conclude that the District Court did not abuse its discretion

when it denied the appellants’ Rule 60(b), M.R.Civ.P., motion for relief from judgment.

¶29     Did the District Court err in dismissing Appellants’ counterclaims with prejudice?

¶30    The District Court entered findings of fact and conclusions of law on February 26,

2002, and entered final judgment on March 28, 2002. The Court’s findings and conclusions

did not explicitly mention or dispose of the appellants’ counterclaims. The appellants then

sought to file a motion to dismiss their counterclaims without prejudice, arguing that, absent

an express finding by the District Court dismissing the counterclaims, the Court’s previous

order and judgment did not dispose of those claims. In its October 7, 2002, Order, the

District Court denied the appellants’ motion, stating that its previous Order did not mention

the counterclaims out of simple judicial economy. The District Court concluded that, “by

dint of their default, this Court intended and does now assert that the Judgment entered

against [the defendants] implicitly ruled on all issues in favor of Plaintiff.         All of

Defendants’ counterclaims were dismissed with prejudice by that Judgment” (emphasis in

original).

¶31    The appellants first argue that, under Rule 54(b), M.R.Civ.P., the judgment granting

the respondents’ requested relief was interlocutory and not final because it left the

counterclaims unresolved. Rule 54(b), M.R.Civ.P, provides:

                                             11
       When multiple claims for relief or multiple parties are involved in an action,
       the court may direct the entry of a final judgment as to one or more but fewer
       than all of the claims or parties only upon an express determination that there
       is no just reason for delay and upon an express direction for the entry of
       judgment. In the absence of such determination and direction, any order or
       other form of decision, however designated, which adjudicates less than all the
       claims or the rights and liabilities of less than all the parties shall not terminate
       the action as to any of the claims or parties, and the order or other form of
       decision is subject to revision at any time before the entry of judgment
       adjudicating all the claims and the rights and liabilities of all the parties.

¶32    The appellants correctly note that this Court adheres to the doctrine of implied

findings for purposes of reviewing findings of fact. That doctrine provides that where

“findings are general in terms, any findings not specifically made, but necessary to the

[determination], are deemed to have been implied, if supported by the evidence.” State v.

Wooster, 2001 MT 4, ¶ 18, 304 Mont. 56, ¶ 18, 16 P.3d 409, ¶ 18 (citing Interstate Brands

Corp. v. Cannon (1985), 218 Mont. 380, 384, 708 P.2d 573, 576); also see Berry v. Romain

(1981), 194 Mont. 400, 407, 632 P.2d 1127, 1132 (“Any findings not specifically made but

necessary to the judgment are deemed to have been implied if supported by the evidence,”

as long as such implied findings are not inconsistent with express findings). However, they

rely on Bauer v. Cook (1979), 182 Mont. 221, 227-28, 596 P.2d 200, 204, in which we held

that, absent judgment on a claim or general findings from which reasonable implications can

be made, this Court could not imply from the trial court’s judgment whether the defendants’

counterclaim was with or without merit.

¶33    Based on Bauer and Claver v. Rosenquist (1972), 160 Mont. 4, 499 P.2d 1235, the

appellants contend that because the District Court’s October 22, 2001, Judgment did not


                                                12
mention the counterclaims nor did the Court enter general findings from which this Court

could imply facts and determine whether the appellants’ counterclaims were with or without

merit, we should reverse the judgment dismissing the counterclaims.

¶34    In both Bauer and Claver, the district court failed to enter either general or specific

findings on the defendants’ counterclaims subsequent to receiving evidence from all

concerned parties, and this Court, unable to imply findings necessary to support the

judgment, remanded for entry of such findings. Bauer, 182 Mont. at 227-28, 596 P.2d at

204; Claver, 160 Mont. at 13, 449 P.2d at 1240. However, in both Bauer and Claver, there

was a trial on the merits of both the complaint and the counterclaims. Here, there was no

trial. The appellants chose not to participate in or monitor the ongoing litigation. Thus, they

did not pursue or present any evidence to support their counterclaims. When, subsequent

to entering the defendants’ default and after proper notice to the defendants pursuant to Rule

55(b), M.R.Civ.P., the District Court conducted a hearing on the default judgment, there was

therefore nothing before the court to support the entry of general or specific findings on these

claims.

¶35    Given that the appellants chose not to pursue their counterclaims or attend scheduling

conferences or hearings, the appellants’ assertion that the District Court somehow erred in

not entering findings and conclusions on their counterclaims rings hollow.          Moreover,

because the subject matter of the present litigation was the allegation involving abuse of

position as directors, officers and shareholders, the defendants were required to litigate their

counterclaims in the present action. Rule 13(a), M.R.Civ.P. See also Zimmerman v.

                                              13
Conner, 1998 MT 131, ¶ 9, 289 Mont. 148, ¶ 9, 958 P.2d 1195, ¶ 9 (“[T]he purpose of

[compulsory counterclaims] is to avoid a multiplicity of suits by requiring the parties to

adjust, in one action, their various differences growing out of any given transaction”) (citing

First Bank, (N.A.) v. District Court (1987), 226 Mont. 515, 521, 737 P.2d 1132, 1135);

Julian v. Mattson (1985), 219 Mont. 145, 148, 710 P.2d 707, 709-10.            Their failure to

litigate the claims in this action therefore justified the dismissal of their counterclaims with

prejudice.

¶36    The default judgment entered on the issues raised in the plaintiffs’ complaint also

serves to settle any compulsory counterclaims that arise out of the transaction or occurrence

that is the subject matter of the plaintiffs’ suit. See Zimmerman, ¶ 18; First Bank, 226 Mont.

at 522-23, 737 P.2d at 1136; Julian, 219 Mont. at 148, 710 P.2d at 709-10. Also see Loney

v. Milodragovich (1995), 273 Mont. 506, 905 P.2d 158, where this Court dismissed the

plaintiff’s claims because such claims could have been litigated in prior proceedings.

       While it is true that the specific issue of whether the unpaid attorney’s fees
       were discharged in bankruptcy was not litigated in the Firm’s action against
       Loney, the doctrine of res judicata bars not only issues which were previously
       litigated, but also issues which could have been litigated in the prior
       proceeding . . . . The fact that Loney did not answer the Firm’s complaint and,
       as a result, that a default judgment was entered against him does not negate the
       fact that he had an opportunity to litigate the issue.

Loney, 273 Mont. at 510-11, 905 P.2d at 161.

¶37    Based on the foregoing, we conclude that the District Court did not err in failing to

make specific findings relative to the appellants’ counterclaims. Such counterclaims were

deemed dismissed and res judicata when the District Court entered its March 28, 2002, final

                                              14
judgment in favor of the respondents. A litigant will find no relief where, through careless

misconduct or willful ignorance, he or she fails to monitor litigation and to responsibly

prosecute claims. In re Marriage of Castor, 249 Mont. at 499, 817 P.2d at 667.

¶38    The appellants’ final argument is that, pursuant to Rule 54(c), M.R.Civ.P., the District

Court is limited in the scope of its judgment to the relief prayed for in the demand for

judgment. Rule 54(c), M.R.Civ.P., provides:

       A judgment by default shall not be different in kind from or exceed in amount
       that prayed for in the demand for judgment. Except as to a party against
       whom a judgment is entered by default, every final judgment shall grant the
       relief to which the party in whose favor it is rendered is entitled, even if the
       party has not demanded such relief in the party’s pleadings.

The appellants argue that, as a matter of law, the District Court exceeded its jurisdiction in

dismissing their counterclaims because the respondents, in their pleadings and in their

demand for default judgment, failed to specifically pray for relief with respect to the

appellants’ counterclaims.

¶39    We are unpersuaded by the appellants’ argument.             Rule 54(c), M.R.Civ.P.,

specifically states that “every final judgment shall grant the relief to which the party in

whose favor it is rendered is entitled, even if the party has not demanded such relief in the

party’s pleadings.” The District Court clearly has authority to grant whatever relief is

necessary to effectuate its judgment. See Goodover v. Lindey’s (1992), 255 Mont. 430, 438,

843 P.2d 765, 770. As noted above, dismissal of the appellants’ counterclaims was part and

parcel of the District Court’s final judgment, and the District Court had the authority to

dismiss those claims.

                                              15
¶40   The judgment of the District Court is affirmed.



                                                        /S/ PATRICIA O. COTTER


We Concur:

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




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