Bartell v. Zabawa

Decision Date10 June 2009
Docket NumberNo. DA 07-0698.,DA 07-0698.
Citation2009 MT 204,214 P.3d 735,351 Mont. 211
PartiesAnn V. BARTELL, Personal Representative of the Estate of Forbes Bartell, Plaintiff and Appellant, v. Katie ZABAWA, Defendant and Appellee.
CourtMontana Supreme Court

For Appellant: R.J. "Jim" Sewell, Jr. and Bruce M. Spencer, Smith Law Firm, Helena, MT.

For Appellee: J. Michael Young, Bronson, Luinstra, Rothwell & Young, Great Falls, MT.

Justice BRIAN MORRIS delivered the Opinion of the Court.

¶ 1 Forbes Bartell (Bartell) and Katie Zabawa (Zabawa) were involved in a car accident in October of 2001. Bartell sued Zabawa in 2004. The District Court entered a default judgment on May 31, 2006, in favor of Bartell in the amount of $101,300. The District Court later set aside the default judgment against Zabawa. Bartell appeals and we affirm.

¶ 2 Bartell's appeal presents the following issue: Did the District Court manifestly abuse its discretion in setting aside the default judgment pursuant to Rule 60(b)(6)?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 Zabawa rear ended Bartell on October 24, 2001, while Bartell waited for children to cross the street. Zabawa reported the accident to her local insurance provider the next day. Safeco, Zabawa's insurance carrier, made numerous attempts to investigate and adjust Bartell's personal injury and property damages claims. In fact, Safeco paid some of Bartell's medical bills and reimbursed him $2,200 for the damage to his pickup.

¶ 4 Safeco's activity log indicates no fewer than thirty-four written and telephone contacts with Bartell, attempting to obtain information needed to settle the claim, between October 29, 2001, and June 21, 2004. Bartell never provided most of the requested information to Safeco. Bartell never informed Safeco that he was represented by counsel. Safeco eventually offered Bartell $500 as a final settlement offer. Safeco sent a letter to Bartell on June 21, 2004, informing him that he needed to reply within thirty days or Safeco would consider the claim closed. Safeco's letter listed a return address of a post office box in Seattle, Washington. Safeco received no response.

¶ 5 Bartell filed an action on October 11, 2004, and served a summons upon Zabawa personally on November 29, 2004. Zabawa gave the papers to her local agent. The local agent attempted to fax the documents to Safeco. Safeco claims that it never received the complaint at its regional office. The clerk of court entered a default against Zabawa on January 3, 2005. No activity took place on the action for nearly a year and a half. This inactivity prompted the court to issue an order to show cause why the complaint should not be dismissed for lack of prosecution. Bartell filed a status report in which he informed the court that the clerk of court had entered a default against Zabawa. Bartell further informed the court that he had scheduled a hearing to present damages and ask the court to enter a default judgment. The court entered a default judgment against Zabawa on May 31, 2006, after holding a hearing to determine the amount of damages.

¶ 6 Bartell presented various medical bills at the hearing to support his claim of damages. Bartell had not submitted most of these medical bills to Safeco. The court inquired into Safeco's absence from the proceedings. Bartell's counsel replied "they just fell off the map. I don't know. We communicated with them." Bartell's counsel further claimed that he had asked Safeco to accept service of the complaint and that Safeco had declined. Bartell's counsel surmised that Zabawa may have failed to turn over the summons and complaint to Safeco. Bartell's counsel conceded that he did not know what had happened, but added "I think after this is over we'll find out probably." Bartell's counsel never mentioned Safeco's thirty-four written and telephone contacts with Bartell. Bartell's counsel also failed to mention that Safeco had paid some of Bartell's medical bills and had reimbursed Bartell for $2,200 to cover the cost of repairs to his pickup. The court awarded $1,300 in medical expenses and $100,000 in general damages for total judgment of $101,300.

¶ 7 Bartell's counsel next sent a letter to Safeco on October 3, 2006, demanding payment on the default judgment. Bartell sent the letter to a post office box in Spokane, Washington. Safeco claims that it never received this letter, or a second letter from Bartell's counsel sent to the same post office box. Safeco contends that Bartell's counsel sent the letter to an incorrect address. Bartell died in April 2007. Safeco finally received a copy of Bartell's demand letter on September 18, 2007, and started its investigation into the incident. Bartell's counsel sent this third letter on behalf of Bartell's estate to Safeco at a street address in Liberty Lake, Washington.

¶ 8 Wade Clutter (Clutter), the Safeco representative assigned to the case, determined that Safeco had not received any of the aforementioned documents, including the summons, the complaint, or the demand letters. Clutter speculates that Safeco's local agent in Great Falls had failed to include a proper heading on the cover sheet when he attempted to fax the complaint and summons to Safeco in 2004. Clutter further alleges that, as a result, the summons and complaint did not make it into Safeco's claim file. He contends that Safeco had no contact from Bartell after Safeco sent its letter of June 21, 2004, notifying Bartell that it would close the file if Bartell failed to respond.

¶ 9 Safeco filed a motion to set aside the default judgment pursuant to M.R. Civ. P. 55(c) and 60(b), on the grounds of mistake, inadvertence, and excusable neglect. Bartell objected on the grounds that the motion was untimely and that the underlying circumstances did not rise to the level of excusable neglect. The District Court ultimately granted Safeco's motion pursuant to M.R. Civ. P. 60(b)(6). The court concluded that relief would have been appropriate under M.R. Civ. P. (60)(b)(1), but the 60 day appeal period had passed. The court instead relied upon M.R. Civ. P. 60(b)(6), which contains a time limit of "within a reasonable time," and provides for "any other reasons justifying relief."

STANDARD OF REVIEW

¶ 10 The principle that "every litigated case should be tried on the merits and thus judgments by default are not favored" guides this Court in considering motions to set aside default judgment. Essex Ins. Co. v. Moose's Saloon Inc., 2007 MT 202, ¶ 17, 338 Mont. 423, 166 P.3d 451. We will reverse a decision to set aside a default judgment only upon a showing of manifest abuse of discretion. Essex, ¶ 17. A manifest abuse of discretion is one that is "obvious, evident, unmistakable." St. James Healthcare v. Cole, 2008 MT 44, ¶ 21, 341 Mont. 368, 178 P.3d 696.

DISCUSSION

¶ 11 Did the District Court manifestly abuse its discretion in setting aside the default judgment pursuant to Rule 60(b)(6)?

¶ 12 The manifest abuse of discretion standard of review provides the framework through which we must evaluate the District Court's decision to set aside the default judgment. The District Court entered the default judgment in the first instance. The District Court, in turn, evaluated the claims by Bartell and Safeco, and determined the existence of extraordinary circumstances that supported setting aside the default judgment that it had entered. The District Court relied upon M.R. Civ. P. 60(b)(6). We must conclude that the District Court obviously, evidently, and unmistakably abused its discretion in setting aside the default judgment in order to reverse.

¶ 13 In this regard, we further note that the record contains no transcript of any of the hearings in this matter. As a result, we must rely upon the District Court's representations of what occurred and what was said. M.R.App. P. 8(2) imposes the duty on the appellant to provide the Court with a sufficient record on which to decide the issues on appeal. This duty includes requesting any transcripts, or portions of transcripts, necessary to decide the appeal. M.R.App. P. 8(3). We therefore evaluate this appeal based upon the record presented by the parties.

¶ 14 Safeco cited M.R. Civ. P. 55(c) and 60(b)(1) & (6) in seeking to set aside the default judgment. The District Court recognized the timeliness issue posed by the 60 day appeal time for claims under M.R. Civ. P. 60(b)(1). The court found, however, that the circumstances involved here warranted application of the more flexible "within a reasonable time" standard contained in 60(b)(6). The court nevertheless first proceeded to analyze Safeco's motion under the standards for relief for judgment under subsection (1). These standards require the court to evaluate (1) whether the defendant proceeded with diligence, (2) whether the defendant can establish excusable neglect, (3) whether the judgment would affect the defendant injuriously, and (4) whether the defendant has a meritorious defense. Kootenai Corp. v. Dayton, 184 Mont. 19, 26, 601 P.2d 47, 51 (1979).

¶ 15 Most of the District Court's analysis focused on the issue of excusable neglect with a summary evaluation of the remaining three factors. The court considered the injury to the defendant to be established simply by the size of the default judgment in this case. The court acknowledged that liability seemed "fairly clear," but questioned the $100,000 in general damages in light of the concession by Bartell's counsel at the default hearing that a jury "might come in in the $25,000 range." The court deemed this concession to confirm the existence of a meritorious defense by Safeco to a large portion of the $100,000 award of general damages. The court also concluded that Safeco proceeded with diligence in that Safeco retained counsel and filed the motion to set aside the default "promptly upon receipt of the September 12, 2007, letter."

¶ 16 With respect to the issue of excusable neglect,...

To continue reading

Request your trial
9 cases
  • Green v. Gerber, DA 12–0054.
    • United States
    • United States State Supreme Court of Montana
    • February 12, 2013
  • Wittich Law Firm, P.C. v. O'Connell
    • United States
    • United States State Supreme Court of Montana
    • June 18, 2013
  • Wittich Law Firm, P.C. v. O'Connell
    • United States
    • United States State Supreme Court of Montana
    • May 7, 2013
  • Carter v. Badrock Rural Fire Dist.
    • United States
    • United States State Supreme Court of Montana
    • November 2, 2021
    ...discretion. A manifest abuse of discretion is one 6 that is obvious, evident, or unmistakable. Benintendi, ¶ 17 (citing Bartell v. Zabawa, 2009 MT 204, ¶ 10, 351 Mont. 211, 214 P.3d 735). ¶12 We review summary judgment orders de novo, performing the same M. R. Civ. P. 56 analysis as the dis......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT