Submitted on Briefs: January 11, 2017
Court of the Thirteenth Judicial District, In and For the
County of Yellowstone, Cause No. DV 14-1155 Honorable Michael
G. Moses, Presiding Judge
Appellant Jock B. West, West Law Firm, P.C., Billings,
Appellee Christopher T. Sweeney, Afton E. Ball, Moulton
Bellingham PC, Billings, Montana
McGrath Chief Justice
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
Erika Zink (Zink) appeals from a February 9, 2016 District
Court order denying her motion to set aside a default
judgment. We affirm.
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
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 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.
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.
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. 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.
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
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).
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 ...