Griffin v. Scott
| Decision Date | 06 November 1985 |
| Docket Number | No. 85-273,85-273 |
| Citation | 710 P.2d 1337,42 St.Rep. 1695,218 Mont. 410 |
| Court | Montana Supreme Court |
| Parties | William J. GRIFFIN and Brenda G. Griffin, Plaintiffs and Respondents, v. Kenneth E. SCOTT and Barbara J. Scott, Defendants and Appellants. |
Tipp, Hoven, Skjelset & Frizzell, Raymond P. Tipp, Missoula, for appellant.
Baxter, Fletcher & Hanson, Robert L. Fletcher, Thompson Falls, for respondent.
Kenneth and Barbara Scott, appellants, appeal the denial of a motion to set aside a default judgment entered in the District Court of the Twentieth Judicial District, Sanders County. We affirm.
William and Barbara Griffin, respondents, filed a complaint on November 28, 1984, claiming a prescriptive easement over an existing roadway across appellants' adjoining property. The complaint and summons were personally served on appellants on December 5, 1984, at their home in Wyoming. On about December 14, 1984 appellants mailed these and other documents to their counsel, Raymond Tipp, in Missoula, Montana. He left for a two-week vacation on December 20, 1984, unaware that the summons and complaint arrived at his office that day. Tipp returned to his office on January 4, 1985, but did not review the information appellants had sent because of the amount of mail and other work which had accumulated. He did not discover that a default judgment had been entered on January 11, 1985, until he saw a credit bureau report on February 12, 1985. At that time he reviewed the information from his clients and contacted respondents' attorney to request a stipulation that the judgment be set aside. He then asked the District Court, on February 21, 1985, to set aside the judgment on the basis of mistake, inadvertence or excusable neglect pursuant to Rule 60(b), M.R.Civ.P.
Respondents opposed this motion citing appellants' lack of diligence in addition to counsel's failure to read his incoming mail. Appellants had not responded to a letter from respondents mailed August 2, 1984 which outlined the problems between the parties in detail and urged them to contact an attorney. They also declined to respond to a follow-up letter three weeks later advising them that respondents would proceed formally to determine the extent of their easement. Even after they received the complaint and summons, appellants apparently did nothing to monitor the status of the suit.
Respondents filed their motion for default judgment on January 8, 1985. The judgment, entered January 11, 1985, awarded respondents an easement over an existing roadway along the edge of appellants' property and permanently enjoined appellants from obstructing the easement. The District Court held a hearing on appellants' motion to set aside the default judgment on March 26, 1985 and denied the motion on April 12, 1985.
Appellants raise two issues on appeal:
(1) Whether the District Court erred by not setting aside the default judgment on the basis of mistake, inadvertence or excusable neglect.
(2) Whether the District Court had authority to enter a default judgment in a quiet title action without a prima facie showing of a right to easement by competent evidence.
The standard of review where a district court has denied a motion to set aside the default "is that no great abuse of discretion need be shown to warrant reversal." Lords v. Newman (Mont.1984), 688 P.2d 290, 294, 41 St.Rep. 1793, 1797. Another statement of this standard "is that only 'slight abuse' is sufficient to reverse an order refusing to set aside a default." (Citations omitted.) Lords, 688 P.2d at 293.
The test to determine whether the neglect is excusable and sufficient to set aside a default is:
... whether the reasons given for the neglect are such that reasonable minds might differ in their conclusions concerning excusable neglect. If so, doubt should be resolved in favor of a trial on the merits.
United States Rubber Co. v. Community Gas & Oil Co. (1961), 139 Mont. 36, 39, 359 P.2d 375, 376. In United States Rubber, the attorney's neglect consisted of his failure to read his mail for two or three weeks "because of being busy, the holiday season, and the mistaken assumption that the letter concerned a different matter." (Emphasis in original.) 139 Mont. at 39, 359 P.2d 375. We held that the attorney's actions were inexcusable neglect and that the district court had not abused its discretion in denying a motion to set aside the default judgment. In the case at bar the attorney's actions are surprisingly similar to those at issue in United States Rubber. The attorney here, in his affidavit, cited the accumulation of mail and work in his office and his absence over the Christmas holiday as the...
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