Johnson v. Murray
| Decision Date | 21 December 1982 |
| Docket Number | No. 82-58,82-58 |
| Citation | 656 P.2d 170,201 Mont. 495,39 St.Rep. 2257 |
| Parties | Ron JOHNSON and Marilee Johnson, Plaintiffs and Respondents, v. Daniel S. MURRAY, Defendant and Appellant. |
| Court | Montana Supreme Court |
George T. Radovich argued, Billings, for defendant and appellant.
McDonough, Cox & Simonton, Richard Simonton argued, Glendive, for plaintiffs and respondents.
Daniel S. Murray appeals from a judgment by default entered against him in the Fifteenth Judicial District Court, Roosevelt County, awarding general damages of $100,000, punitive damages of $100,000, attorney fees of $1,500 and costs in favor of the plaintiffs Ron and Marilee Johnson. We affirm.
Murray raises two issues: (1) that he was deprived of due process in the entry of his default and the granting of the default judgment, and (2) that the damages awarded are excessive.
On September 3, 1980, highway patrolman Duane Bratland, an officer under the supervision of plaintiff Ron Johnson, issued a daytime speeding ticket to Murray in Dawson County. The maximum fine for the speeding charge was $5.
On September 30, 1980, Murray responded to the ticket by filing in the Justice Court a document entitled "Counterclaim". In it he accused Ron Johnson, Marilee Johnson and others of "intimidation of private citizens, compounding a felony, attempting to take money under false pretenses, using unauthorized police powers, operating a radio transmitter without a FCC license, failure to display FCC license, vexing and harassing." He demanded damages from the defendant of $1,050,007, plus court costs and attorney fees at $100 per hour. The justice of the peace dismissed Murray's counterclaim for lack of jurisdiction.
About the time of the dismissal in Justice Court, Murray filed with the clerk and recorder of Roosevelt County, where the Johnsons resided, documents entitled "Notice and Demand," and "Memorandum of Law" which purported to be liens upon the Johnsons' real property. At about the same time, Murray approached local banks with another "Notice and Demand" entitled "Claim of Common Law Writ of Attachment with Memorandum of Law" and attempted to attach or detain the Johnsons' checking and savings accounts along with any of their stocks, bonds and safe deposit boxes.
On December 2, 1980, Johnsons' attorney wrote to Murray, demanding that the purported liens be removed within ten days or suit would be filed. Murray responded to this letter with a "Declaration of Notice and Demand" which essentially repeated and demanded compliance with the purported liens.
On May 27, 1981, Johnsons brought this action against Murray, asking for damages for slander of title, defamation, violation of their rights to privacy and their right to own property. The Johnsons requested general damages, punitive damages, costs and attorney fees.
Summons was served on Murray in Yellowstone County on June 3, 1981.
On June 24, 1981, the clerk of the District Court in Roosevelt County received in the mail from Murray an instrument entitled "Answer to Complaint, Special Appearance, Offer to Release Liens." Murray, however, did not submit the necessary $10 filing fee. On the date of receipt, the clerk of the District Court mailed to Murray a bill for the $10 filing fee, meanwhile holding the "Answer" without filing the same. Murray had served his answer upon the Johnsons, but not upon their attorney.
On August 28, 1981, the attorneys for the Johnsons filed with the clerk of the District Court their written request for the entry of Murray's default for his failure to plead or otherwise defend as provided by law.
On September 1, 1981, the attorneys for the Johnsons served written notice of application for default judgment upon Murray, and filed the original with the clerk of the court, that on September 29, 1981, at 11:00 a.m., in the Roosevelt County courthouse, the plaintiffs would present testimony regarding the extent of their damages in the matter, because of Murray's default.
On September 11, 1981, Murray sent the $10 filing fee to the clerk of the District Court, who thereupon filed the "Answer" in the court file.
On September 16, 1981, Richard A. Simonton, as attorney for the Johnsons, filed an affidavit for entry of default to the effect that the defendant had been served on June 3, 1981, that the time for the entry of his answer had expired, and that he had not answered or otherwise moved for extension of time to answer. On September 16, 1981, the default of Murray was entered in the case.
On September 28, 1981, the day before the time scheduled for the hearing on the entry of judgment by default, Murray filed in the District Court an instrument entitled "Notices ; Special Appearance; Display of Bad Faith; Request for Voluntary Dismissal; Demand for Jury Trial."
On September 29, 1981, Murray did not appear in person or by counsel for the hearing on the entry of judgment by default. At 20 minutes past the appointed time for the hearing, the District Court proceeded to take testimony from the Johnsons with respect to the amount of damages. Witnesses included Roger Wimmer, an abstractor from Wolf Point, Montana, and the plaintiffs Ron Johnson and Marilee Johnson. In its findings, the District Court found the procedures substantially as we have recited them foregoing; determined that the Johnsons were required to retain counsel for the purpose of protecting their rights and to remove the cloud upon the title of their real property created by the filing of the liens; that such liens did cloud the title to Johnsons' real property; that the Johnsons were not guilty of intimidation, compounding a felony, taking money under false pretenses, using in an unauthorized manner their police powers, nor had they vexed or harassed Murray; that they had no personal contact with him, and were not involved in the issuance of or the enforcement of the citation issued to him on September 3, 1980; that Marilee Johnson in particular did nothing to abuse the defendant and had no connection other than being the subject of his attack by way of liens. The District Court concluded that the placement and retention by Murray of the alleged common law liens against the Johnson property in Roosevelt County slandered the title and caused a cloud upon it, reducing its value and saleability; that the counterclaim was a public document and available for public inspection and it charged the Johnsons with the commission of crimes which were false untrue and damaging statements, and were libelous per se with regard to the reputation, business and standing of the Johnsons in the community; that the liens and writs of attachment by Murray were intentional attempts to harass, embarrass and intimidate the Johnsons without statutory or case authority and violated the Johnsons' right to privacy and to own or possess property and hindered and obstructed the Johnsons' personal rights; that the alleged common law liens were void without recognition in Montana case law or statutory law and should be stricken from the record; that the plaintiffs had incurred attorney fees of $1,500, plus additional costs in prosecuting the action to remove the liens. On this basis, the court entered the damages which we have recited earlier.
Following the service of the notice of entry of judgment against him, Murray moved to set aside the judgment under Rule 60(b), M.R.Civ.P. Johnsons resisted the motion on the ground that he had failed to show facts sufficient to constitute mistake, inadvertence, surprise or excusable neglect, or that he had a good defense to the complaint. The District Court on December 30, 1981, denied the motion to set aside a default judgment and the appeal to this Court ensued.
At all stages of the proceedings in the District Court, and until this appeal, Murray represented himself, acting as his own counsel in filing pleadings and documents, and conducting correspondence with Johnsons' attorney.
Defaults are controlled by Rule 55, M.R.Civ.P. The pertinent parts of that rule follow:
Under Rule 55, it is clear that the entry of default by the clerk and the entry of judgment by the District Court are two distinctly different acts. Sealey v. Majerus (1967), 149 Mont. 268, 271, 425 P.2d 70. In that case we said:
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