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Ptarmigan Owner's Association, Inc v. Lewis H. Alton

March 20, 2013

PTARMIGAN OWNER'S ASSOCIATION, INC., A MONTANA CORPORATION, PLAINTIFF AND APPELLEE,
v.
LEWIS H. ALTON, LLC MONTANA INVESTMENTS 212, DOES 1-20, DEFENDANT AND APPELLANT.



APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DV-11-68D Honorable David M. Ortley, Presiding Judge

The opinion of the court was delivered by: Justice Brian Morris

Submitted on Briefs: February 13, 2013

Decided: March 19, 2013

Filed:

Clerk

Justice Brian Morris delivered the Opinion of the Court.

¶1 Lewis Alton (Alton) appeals from a default judgment entered in the Eleventh Judicial District, Flathead County. Alton claims that Ptarmigan Owner's Association (Ptarmigan) never properly served him. We affirm.

¶2 Alton presents the following issue on appeal:

¶3 Whether the District Court slightly abused its discretion by failing to set aside the default judgment against Alton?

PROCEDURAL AND FACTUAL BACKGROUND

¶4 Alton purchased a house in Ptarmigan Village in Whitefish, Montana. Alton used the Ptarmigan Village house as a vacation home. He lived primarily in Arizona.

¶5 Ptarmigan manages all units that comprise the Ptarmigan homeowner's association, including Alton's house. Ptarmigan collected fees and dues from the owners of Ptarmigan Village units and managed the maintenance and payment of expenses within Ptarmigan Village. Alton stopped paying fees and dues to Ptarmigan.

¶6 Ptarmigan filed a lien on Alton's house in November 2010. Alton owed Ptarmigan approximately $5000 in unpaid fees and dues at that time. Ptarmigan required all homeowners, including Alton, to keep a current address on file to receive correspondence. Alton had listed a Postal Plus mailbox in Arizona rather than a residential address. Ptarmigan routinely sent all of Alton's bills and notices to this Postal Plus mailbox in Arizona.

¶7 Ptarmigan served notice of the lien by certified mail to Alton's Postal Plus mailbox in Arizona. Ptarmigan received the certified mail confirmation receipt. Ptarmigan filed a complaint to foreclose on its lien on January 20, 2011. The District Court issued a summons on January 20, 2011. Ptarmigan mailed the summons and complaint to Alton's Arizona mailbox. Alton did not respond. Ptarmigan contacted an Arizona constable to serve the complaint and summons on Alton in Arizona. The Arizona constable failed to locate Alton through the Postal Plus mailbox. The constable returned the summons to Ptarmigan and informed Ptarmigan that Alton had not been served.

ΒΆ8 Ptarmigan filed an affidavit in support of service by publication on April 18, 2011. The Clerk of Court issued the Order for Service by Publication pursuant to M. R. Civ. P. 4D(5) (2010). Ptarmigan published the complaint and summons. Ptarmigan also mailed a second copy ...


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