                                                                                                02/21/2017


                                          DA 16-0154
                                                                                            Case Number: DA 16-0154

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2017 MT 33N



LEE MCDONALD,

              Plaintiff and Appellee,

         v.

ERIKA ZINK,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Thirteenth Judicial District,
                        In and For the County of Yellowstone, Cause No. DV 14-1155
                        Honorable Michael G. Moses, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Jock B. West, West Law Firm, P.C., Billings, Montana

                For Appellee:

                        Christopher T. Sweeney, Afton E. Ball, Moulton Bellingham PC,
                        Billings, Montana



                                                    Submitted on Briefs: January 11, 2017

                                                               Decided: February 21, 2017


Filed:

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


¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Erika Zink (Zink) appeals from a February 9, 2016 District Court order denying

her motion to set aside a default judgment. We affirm.

¶3     Lee McDonald (McDonald) sold real property to Zink in May 2003, through a

contract for deed. In the contract, Zink listed her address for service of process as the

real property address. In June 2013, with more than $75,000 remaining due on the

contract, Zink stopped making payments. McDonald requested immediate payment; he

sent notices to the address Zink provided in the contract as well as the address of her

uncle’s business, A-One Plumbers in Billings, Montana. Zink was not living at the

address listed on the contract, nor did she update her address with McDonald or the

escrow agent.

¶4     After more than one year without payment or response from Zink, McDonald

brought a quiet title action in Yellowstone County on August 12, 2014. McDonald

retained a local process server. He personally, and through his attorney, attempted to

locate Zink. McDonald’s attorney filed an affidavit claiming to have made a diligent

search for all interested persons, yet was unable to locate Zink for service of process and


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notice of the action. McDonald requested service by publication. The District Court

signed an order on September 2, 2014, and publication was made. Zink did not respond.

¶5     McDonald applied for default, which was entered by the clerk on November 17,

2014. McDonald then filed a motion for a default judgment. A hearing was scheduled

for December 11, 2014. Zink did not appear and the District Court granted the motion.

McDonald continued to attempt to locate Zink and in June 2015 Zink replied to an email

from McDonald. Zink expressed she no longer desired to be a party to the agreement or

owner of the property. Zink did not express a desire to remedy the default or exert an

ownership interest in the property.

¶6     One year after the default judgment was entered, on December 11, 2015, Zink

filed a motion to set it aside. McDonald filed a response and Zink replied. The District

Court denied Zink’s motion to set aside the judgment.        McDonald then moved for

attorney’s fees per the contract, which provided for reasonable attorney’s fees to the

prevailing party if litigation was necessary to enforce the contract. The District Court

granted the motion.

¶7     A district court’s ruling on a motion to set aside a default judgment pursuant to

M. R. Civ. P. 60(b) is reviewed for abuse of discretion. Heller v. Gremaux, 2002 MT

199, ¶ 7, 311 Mont. 178, 53 P.3d 1259. If a district court denies a motion to set aside a

default judgment, only a slight abuse of discretion need be shown to warrant reversal.

Green v. Gerber, 2013 MT 35, ¶ 13, 369 Mont. 20, 303 P.3d 729. Where the movant

sought relief on the grounds that the judgment is void, the standard of review is de novo,

since the determination that a judgment is or is not void is a conclusion of law.

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M. R. Civ. P. 60(b)(4); Essex Ins. Co. v. Moose’s Saloon, Inc., 2007 MT 202, ¶ 16, 338

Mont. 423, 166 P.3d 451.

¶8     Zink claims McDonald fraudulently obtained service by publication and therefore

the District Court did not have jurisdiction over the case. M. R. Civ. P. 60(b) provides

six exceptions to the doctrine of finality of judgments, provided the party seeking relief

was wronged through no fault of her own. Wittich Law Firm, P.C., v. O’Connell, 2013

MT 122, ¶ 25, 370 Mont. 103, 304 P.3d 375; In re Marriage of Hopper, 1999 MT 310,

¶ 29, 297 Mont. 225, 991 P.2d 960. Relief can be based upon “fraud.” M. R. Civ. P.

60(b)(3). Alternatively, a default judgment may be declared void under M. R. Civ. P.

60(b)(4) if the court that rendered the judgment lacked subject matter jurisdiction.

Greater Missoula Area Fed’n. of Early Childhood Educators v. Child Start, Inc., 2009

MT 362, ¶ 21, 353 Mont. 201, 219 P.3d 881.

¶9     The record shows and the District Court correctly concluded that Zink did not

demonstrate any deficiency or fraud in the service of process. Zink failed to update her

address when she moved and McDonald’s attorney submitted an affidavit to justify

service by publication. McDonald attempted to serve Zink numerous times through mail,

a process server, his attorney, and publication.       Zink provided an affidavit that

documented McDonald’s assertion that service of process was attempted on A-One

Plumbing. The record established that McDonald did what was required to locate and

serve Zink.    Zink has not established that service by publication was improper.

M. R. Civ. P. 4(o)(3)(A)(ii)(a)(3).   The District Court had jurisdiction over the case.

M. R. Civ. P. 60(b)(4).

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¶10    Further, M. R. Civ. P. 60(b) only provides relief for a defendant who has been

wronged through no fault of their own. Wittich, ¶ 25. Here, Zink failed to make

payments on the loan. Zink failed to accept or respond to letters, notices, service of

process, or publication of service for over two and a half years. Further, Zink notified

McDonald by email in June 2015 that she had no further interest in the property. The

District Court’s denial of the motion to set aside the judgment was not an abuse of

discretion. M. R. Civ. P. 60(b)(4).

¶11    Zink further argues the District Court abused its discretion when it awarded

attorney’s fees. If there exists a legal basis to award attorney’s fees to the prevailing

party, this Court reviews the district court’s determination for an abuse of discretion.

Wohl v. City of Missoula, 2013 MT 46, ¶ 29, 369 Mont. 108, 300 P.3d 1119. The

contract for the sale of the real property included a clause that provided that if, in order to

enforce the contract, one party is required to institute legal action, the prevailing party

shall be entitled to reasonable attorney’s fees. Here, Zink forced McDonald to pursue a

quiet title action when she defaulted. Further, McDonald was required to defend against

Zink’s motion to set aside the default judgment. McDonald was the prevailing party.

McDonald is entitled to reasonable attorney’s fees based on the language of the contract.

The District Court did not abuse its discretion.

¶12    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. In the opinion

of the Court, the case presents a question controlled by settled law or by the clear

application of applicable standards of review.

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¶13   Affirmed.


                              /S/ MIKE McGRATH


We Concur:

/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR




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