No




                                                               No. 97-386




                          IN THE SUPREME COURT OF THE STATE OF MONTANA




                                                             1998 MT 185




                                                 STATE OF MONTANA ex rel.

                                 DEPARTMENT OF ENVIRONMENTAL QUALITY,

                                                    Plaintiffs and Respondents,




                                                                      v.

                                                ROD AND LINDA ROBINSON,

                                                    Defendants and Appellants.

                            APPEAL FROM: District Court of the Ninth Judicial District,

                                                 In and for the County of Toole,

                                    The Honorable Marc G. Buyske, Judge presiding.




                                                    COUNSEL OF RECORD:




                                                            For Appellants:


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                                           Patrick F. Flaherty, Great Falls, Montana




                                                            For Respondents:

                    David M. Rusoff, Department of Environmental Quality, Helena, Montana




                                               Submitted on Briefs: June 25, 1998

                                                        Decided: July 23, 1998

                                                                    Filed:

                                    __________________________________________

                                                                    Clerk

Justice William E. Hunt, Sr. delivered the Opinion of the Court.

¶1 Rod and Linda Robinson appeal the denial of their motion to set aside a default
and default judgment entered by the Ninth Judicial District Court, Toole County.
Their motion was deemed denied by operation of law when the District Court failed
to rule on it within 60 days as provided for by Rule 60(c), M.R.Civ.P. We affirm.

¶2 The sole issue we address is whether the District Court erred when it failed to set
aside the default judgment and entry of default.

                                                          BACKGROUND

¶3 The Robinsons operate a motor vehicle wrecking facility near Oilmont, Montana.
The Motor Vehicle Recycling and Disposal Act ("Act") requires persons who operate
such a facility to obtain a wrecking facility license from the Department of
Environmental Quality (DEQ), which is charged with enforcing the State’s motor
vehicle recycling and disposal laws. Section 75-10-511(1), MCA. Additionally, such
persons are required to shield the facility from public view. Section 75-10-505, MCA;
Rule 17.50.202(1), ARM.

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¶4 In 1995, the DEQ discovered that the Robinsons were operating a motor vehicle
wrecking facility without a license, and that they had not shielded their facility from
public view as required by the Act. Beginning in May 1995, the DEQ wrote letters to
the Robinsons requesting that they bring their facility into compliance with the law.
The Robinsons did not respond to any of the DEQ’s informal attempts to rectify the
situation.

¶5 When the Robinsons still had not responded to any of the DEQ’s correspondence
over the course of an entire year, in August 1996, the DEQ sent the Robinsons a
certified letter stating that if they did not take steps to bring the facility into
compliance with the law, the DEQ would initiate an enforcement action. The
Robinsons, however, refused to accept delivery of the letter.

¶6 Finally, on August 9, 1996, the DEQ filed a complaint and application for a
permanent injunction. It alleged that the Robinsons violated the law by operating a
motor vehicle wrecking facility without a license and by failing to shield the facility
from public view. The DEQ requested that the court (1) permanently enjoin the
Robinsons from accepting any additional junk vehicles at their facility, (2) order
them to properly shield all junk vehicles currently located on their property or
alternatively to remove the vehicles to another licensed facility, and (3) assess a civil
penalty pursuant to § 75-10-542(2), MCA, in the amount of $50.00 for each day of
each violation until the cessation of all the violations alleged in the complaint. The
DEQ served the complaint and summons on the Robinsons on August 20, 1996.

¶7 On September 3, 1996, Rod Robinson telephoned the DEQ’s attorney. According
to the attorney’s testimony, he advised Robinson to retain an attorney and told him
that if Robinson did not answer the complaint he "intended to procure a default
[judgment]." He also told Robinson that "if he would submit the application
materials [to obtain a license, he] would take no action on the default judgment." By
letter dated September 4, 1996, the attorney memorialized the conversation and
stated he would give the Robinsons fifteen days to submit a completed license
application. The letter provides in part:

                  This letter is to memorialize our telephone conversation yesterday, and to
                  advise you of the status of your case. When we spoke, you indicated you had
                  received your Summons, and that you needed additional time in which to


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                  erect fencing around you[r] motor vehicle wrecking facility. I told you I
                  would speak to the Program Manager, and would take no action on the
                  Complaint for the time being. Please be advised, the time for you to answer
                  the Complaint in District Court continues to elapse. If you want to contest the
                  allegations in the Complaint, I suggest you hire a lawyer as soon as possible.

                  However, you seemed to indicate that you wanted to resolve this matter by
                  bringing your facility into compliance with the applicable regulations. . . .

                  [T]he Program Manager is unwilling to grant you too much leeway simply
                  because of the longstanding duration of the violations and the abortive
                  attempts in the past to achieve compliance through various deals. Here is what
                  the Department is willing to do: You must submit a completed application for
                  a motor vehicle wrecking facility to the Department within 15 days from
                  receipt of this letter. The application materials are enclosed. A partial
                  application will not be acceptable. The only portion of the application that can
                  be completed after the 15-day deadline is the review by the Historical Society,
                  because that entails a process that is largely out of your control.

                  ....

                  I intend to procure a Default Judgement against you in District Court after the
                  time allowed for answering the Complaint expires. I will take no action on the
                  Default Judgement so long as you continue to work with the Department to
                  bring your facility into compliance. If you follow through with the licensing,
                  and do not attempt to erect shielding until after the Department has issued a
                  license for the facility (i.e., after the sixty-day in-depth review of the
                  application), I will allow additional time for completion of the shielding
                  according to a regimented compliance schedule. Once the facility is licensed,
                  and the shielding is in place, I will release the Default Judgement.

¶8 On September 9, 1996, the DEQ’s attorney telephoned Rod Robinson to confirm
that Robinson had received the application materials. He again informed Robinson
that the DEQ intended to pursue the default judgment. Subsequently, on September
21, 1996, the DEQ received the Robinsons’ application form. The application,
however, was incomplete, so on September 23, 1996, the DEQ wrote the Robinsons a
letter by certified mail enumerating the deficiencies and allowing them an additional


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two weeks to submit the necessary information. The Robinsons failed to supply any
additional information.

¶9 Approximately four weeks later on October 16, 1996, when the Robinsons still
had not supplied any further information, the DEQ filed an application for entry of
default. On October 23, 1996, the DEQ’s attorney telephoned Rod Robinson to
question him regarding the status of the application materials. Although the District
Court had not yet entered the default, the DEQ’s attorney informed Robinson that it
had. He also informed Robinson that the DEQ would not pursue a judgment on the
default if the Robinsons cooperated and worked diligently to comply with the law
and submitted a completed application. The District Court entered default against
the Robinsons on November 12, 1996.

¶10 By December 1996, the DEQ still had not received any further information from
the Robinsons in support of their application, and it had not heard anything from
them. The DEQ’s attorney again attempted to telephone the Robinsons. However, the
telephone number had either been changed or disconnected and he was unable to
reach them. On December 18, 1996, he sent the Robinsons another letter by certified
mail. In that letter he recounted the parties’ telephone conversations and noted that
it had been approximately two months since the initial deadline for submission of the
application materials and since the Robinsons had communicated with the DEQ. He
therefore concluded that the Robinsons were no longer attempting to cooperate with
the DEQ to bring their facility into compliance. He ended his letter as follows:

                  Therefore, I am no longer at liberty to work with you. If I do not receive your
                  completed application ten days from the date of this letter, I intend to pursue
                  judgement upon my default in District Court.

¶11 The Robinsons did not submit the completed application within ten days.
However, approximately one month later, on January 15, 1997, Rod Robinson hand-
delivered a license application. Once again, the application was missing certain
information that the DEQ had requested in its September 23, 1996 letter.
Specifically, it was missing the signature of an official with the County Planning or
Zoning Board. That same day, the DEQ’s attorney and the junk vehicle program
manager met with Rod Robinson to discuss the application. They advised Robinson
that the DEQ would give him a final extension of time until February 7, 1997, in
which to obtain the necessary signature. They also told him that if the completed


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application was not submitted by that date, the DEQ would apply for a default
judgment.

¶12 The Robinsons did not submit the completed application by February 7, 1997.
The DEQ waited for almost two more months past this deadline, but once again it
neither received the completed application nor heard from the Robinsons.
Accordingly, on April 2, 1997, it filed a request for entry of default judgment. On
April 2, 1997, almost two years after the DEQ had first attempted on an informal
basis to bring the Robinsons’ facility into compliance with the law, the District Court
entered the default judgment. It enjoined the Robinsons from maintaining or
operating a motor vehicle wrecking facility, and entered judgment in the amount of
$68,400.

¶13 The Robinsons subsequently obtained legal counsel, and on April 18, 1997, they
filed a motion to set aside the default judgment. The District Court conducted an
evidentiary hearing on June 5, 1997. However, the court did not rule on the motion
within 60 days after it was filed, and the motion was thus deemed denied by
operation of law. Rule 60(c), M.R.Civ.P. The Robinsons appeal.

                                                            DISCUSSION

¶14 Did the District Court err when it failed to set aside the default judgment and
entry of default?

¶15 The standard of review when a trial court has refused to set aside a judgment is
whether there has been a slight abuse of discretion. In re Marriage of Martin (1994),
265 Mont. 95, 99, 874 P.2d 1219, 1222 (citing Lords v. Newman (1984), 212 Mont.
359, 366, 688 P.2d 290, 294). The standard for setting aside a default judgment and
entry of default are well-established. The court may set aside a default judgment
based upon mistake, inadvertence, surprise, excusable neglect, or any other reason
justifying relief. Rules 55 (c) and 60(b)(1) and (6), M.R.Civ.P. An entry of default
may be set aside "for good cause shown." Rule 55(c), M.R.Civ.P. To establish "good
cause," the defendant must show that (1) he proceeded with diligence to set aside the
default, (2) his neglect was excusable, (3) the judgment will be injurious to the
defendant if allowed to stand, and (4) he has a meritorious defense to the plaintiff’s
cause of action. In re Marriage of Martin, 265 Mont. at 99, 874 P.2d at 1222 (citing
Blume v. Metropolitan Life Ins. Co. (1990), 242 Mont. 465, 467, 791 P.2d 785, 786).


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The policy in this state is to favor a trial or decision on the merits; default judgments
are not favored. In re Marriage of Martin, 265 Mont. at 99, 874 P.2d at 1222.
However, the burden of proof rests with the defendant seeking to set aside the
default. In re Marriage of Martin, 265 Mont. at 99, 874 P.2d at 1222.

¶16 In this case the Robinsons contend that the default judgment and entry of default
should be set aside pursuant to Rule 60(b)(1) and (6), M.R.Civ.P. They also argue
that this Court "has the power to apply principles of equitable estoppel to set aside
the default based on the representations of the DEQ’s agents." Specifically, the
Robinsons maintain that the DEQ repeatedly misled them into believing that as long
as they cooperated with the DEQ officials by bringing their facility into compliance
with the law, they would not have to get a lawyer and the DEQ would not pursue a
default judgment. In particular, they point to the DEQ’s letter dated September 4,
1996, wherein the DEQ attorney wrote in part that "I will take no action on the
Default Judgement so long as you continue to work with the Department to bring
your facility into compliance. . . . Once the facility is licensed, and the shielding is in
place, I will release the Default Judgement." The Robinsons contend that as lay
people they understood this letter to mean that the DEQ would lift all legal process
that had been initiated against them so long as they continued to cooperate with the
DEQ.

¶17 The Robinsons further insist that they did cooperate with the DEQ. They
contend that as of January 15, 1997, they had remedied all deficiencies in the
application, except that they had not yet obtained the signature or statement from an
official from the Zoning Board. On that date, Rod Robinson thus drove to Helena to
hand-deliver the application, but the official was not in the office that day. The
Robinsons do not contend, however, that they took any steps after that date to either
obtain the necessary signature by the final deadline of February 7, 1997, or that they
contacted the DEQ to relay any problems with getting the signature.

¶18 In the past, this Court has set aside default judgments on the grounds of mistake
or excusable neglect where pro se defendants have misunderstood communications
from the opposing attorney or were misled, even if inadvertently, into believing that
a cause of action would not be pursued or that they did not have to file an answer to
a complaint. See, e.g., In re Marriage of Martin, 265 Mont. at 101-02, 874 P.2d at
1234; In re Marriage of Broere (1994), 263 Mont. 207, 210, 867 P.2d 1092, 1094.
However, even were this Court inclined to hold that this case falls into that category

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of cases where default judgment should be set aside, the Robinsons still have the
burden of demonstrating that they have a meritorious defense to the cause of action
before the entry of default may be set aside. In re Marriage of Martin, 265 Mont. at
99, 874 P.2d at 1222. In this case, they have not met that burden. We thus need not
decide whether the Robinsons’ failure to file an answer to the complaint was the
result of mistake or excusable neglect.

¶19 When inquiring into whether a party has offered a meritorious defense, it is not
the Court’s function to determine factual issues or resolve the merits of the dispute,
but instead is to simply determine whether the defendant has presented a prima facie
defense. Blume v. Metropolitan Life Ins. Co. (1990), 242 Mont. 465, 470, 791 P.2d
784, 787. In so doing, however, this Court will inquire as to whether the offered
defense is meritorious.

¶20 In this case, the Robinsons have offered no defense at all, let alone a meritorious
defense, to the charges contained in the complaint. They were charged with violating
§ 75-10-511(1), MCA, for failing to obtain a license to operate a motor vehicle
wrecking facility, and with violating § 7-10-505, MCA and Rule 17.50.202, ARM, for
failing to shield their motor vehicle wrecking facility from public view. The
Robinsons did not file a proposed answer as part of their motion to set aside the
default judgment and entry of default, and at the hearing on their motion to set aside
the default judgment they offered no evidence to dispute the charges. At no time have
they denied operating a motor vehicle wrecking facility; at no time have they
disputed the allegation that they were operating their facility without a license; and
at no time have they alleged that their facility was shielded from public view. Indeed,
Rod Robinson admitted at the hearing that he had been operating his facility for
three years and that he has never obtained a license. In short, the Robinsons have
offered no evidence of a meritorious defense to these charges.

¶21 Instead of contesting the charges contained in the complaint, they contend they
have a meritorious defense because there was "no rational justification to impose"
the civil penalty of $68,400. A quick review of the Robinsons’ arguments in support
of this position reveals that their proposed legal defense is not meritorious.

¶22 First, they argue that the District Court lacked jurisdiction to enter the
judgment against them, and in so doing it imposed a criminal penalty in violation of
their constitutional rights to due process. They maintain that the DEQ usurped the


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offices of the County Attorney and the Attorney General who alone have the
authority to file an information in District Court against them. In support of their
position, they cite the dissenting opinion in State v. Mummy (1994), 264 Mont. 272,
871 P.2d 868, and argue that § 75-10-542, MCA, is unconstitutional. Their position is
not meritorious.

¶23 The penalty provisions of the Motor Vehicle Recycling and Disposal Act provide:

                  Penalties. (1) A person who willfully violates this part, except 75-10-520, is
                  guilty of a misdemeanor and upon conviction shall be fined not to exceed
                  $250, imprisoned in the county jail for a term not to exceed 30 days, or both.

                  (2) A person who violates this part, except 75-10-520, a rule of the
                  department, or an order issued as provided in this part shall be subject to a
                  civil penalty of not more than $50. Each day upon which a violation of this
                  part or a rule or order occurs is a separate violation.

Section 75-10-542, MCA. What the Robinsons fail to acknowledge is that the DEQ’s
prayer for relief requested the civil penalty pursuant to § 75-10-542(2), MCA; the
DEQ did not file an information or seek to convict the Robinsons of a misdemeanor
pursuant to § 75-10-542(1), MCA. Thus, the DEQ did not usurp any authority of the
County Attorney or the Attorney General.

¶24 Additionally, Mummey is irrelevant to DEQ’s argument on appeal. In Mummy,
the dissent concluded that § 45-5-201, MCA (defining the crime of assault) and § 45-5-
202(2)(a), MCA (defining the crime of felony assault) were unconstitutionally vague
as applied to the facts of that case, because those statutes failed to give fair warning
that a person could be charged and convicted of felony assault rather than
misdemeanor assault by kicking someone while wearing a tennis shoe. Mummey, 264
Mont. at 285, 871 P.2d at 875 (Trieweiler, J., dissenting). In this case, on the other
hand, the Robinsons have not alleged that the Motor Vehicle Recycling and Disposal
Act is unconstitutionally vague in that it fails to give fair warning that certain
conduct, such as failing to obtain a license or failing to shield a motor vehicle
wrecking facility from public view, can lead to the penalty provided for in § 75-10-542
(2), MCA. Moreover, as already pointed out, the Robinsons were not charged with
any criminal penalty. The Robinsons failed to demonstrate how their reference to the
legal standard for voiding a criminal statute for vagueness has any connection to


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their argument that the District Court lacked jurisdiction to enter the judgment or
violated their constitutional rights to due process. We hold that the Robinsons have
not presented a meritorious defense to the cause of action.

¶25 The Robinsons next argue that the complaint itself did not pray for a sum
certain as a penalty, and that the District Court should have held a hearing before
determining the judgment amount. Although they cite no authority for their position,
it appears they base their argument upon Rule 55(b), M.R.Civ.P. Rule 55(b)(1), M.R.
Civ.P. provides that upon affidavit of the amount due, the clerk of court shall enter a
judgment by default when the plaintiff’s claim is for "a sum certain or for a sum
which can by computation be made certain. . . ." In this case, the complaint
requested that the court assess a civil penalty pursuant to § 75-10-542(2), MCA, in
the amount of $50.00 for each day of each violation charged in the complaint, until
the cessation of all violations. Contrary to the Robinsons’ contention, that request
was for a sum that by computation could be made certain by multiplying $50.00 by
the number of days of violation for each offense.

¶26 Moreover, the default judgment in this case was entered by the District Court
and not by the clerk of court. The restrictions imposed by Rule 55(b)(1), M.R.Civ.P.,
that default judgment shall be entered only by the clerk when the claim is for a sum
certain or which by computation could be made certain thus did not apply. Rule 55(b)
(2), M.R.Civ.P., authorizes the court, if necessary, to hold a hearing to determine the
amount of damages. In this case, a hearing was not necessary because the court by
simple calculation could easily determine the amount of damages. The court did not
abuse its discretion in failing to hold a hearing.

¶27 Finally, the Robinsons argue that the default judgment and entry of default
should be set aside because the DEQ did not serve them with copies of its application
for entry of default, request for entry of default judgment, and other supporting
documents. However, when a party against whom a default judgment is sought has
not appeared in an action, notice is not required. Rule 55(b), M.R.Civ.P.

¶28 In sum, we hold that the Robinsons have not presented a meritorious defense to
the DEQ’s cause of action, and that the District Court did not err in failing to set
aside the default judgment and entry of default.

¶29 Affirmed.


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/S/ WILLIAM E. HUNT, SR.

We Concur:

/S/ J. A. TURNAGE

/S/ KARLA M. GRAY

/S/ JIM REGNIER

/S/ TERRY N. TRIEWEILER

/S/ W. WILLIAM LEAPHART

/S/ JAMES E. PURCELL

District Judge, sitting for Justice James C. Nelson




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