ERICK M. ENZ, KEELEE M. ENZ, and LYN C. REHM, Plaintiffs and Appellees,
ANTHONY RAELUND, CANDICE RAELUND, and RAELUND FAMILY TRUST, Defendants and Appellants, BROOKE ANTHONY WEEKS, Intervenor.
Submitted on Briefs: April 4, 2018
FROM: District Court of the Eleventh Judicial District, In
and For the County of Flathead, Cause No. DV 17-016 (D)
Honorable Dan Wilson, Presiding Judge
Appellants: David Duke, Duke Law Firm, Billings, Montana
Appellees: Kim T. Christopherson, Christopherson Law Office,
P.C., Kalispell, Montana
Anthony Raelund, Candice Raelund, Raelund Family Trust,
(collectively "the Raelunds") and Brooke Anthony
Weeks (Weeks) appeal from an order of the Eleventh Judicial
District Court, Flathead County, denying two motions filed by
the Raelunds: Motion to Set Aside Default and Motion to Set
Aside Default Judgment, and two motions filed by Weeks:
Motion for Leave to Intervene by Brooke Anthony Weeks and
Motion for Brooke Weeks to Join Anthony Raelunds [sic] Motion
to Set [sic] Default and Judgment. We affirm.
We restate the issues on appeal as follows:
1. Did the District Court slightly abuse its discretion
when it denied the Raelunds' motions to set aside default
and default judgment?
2. Did the District Court err when it denied Weeks'
motion for leave to intervene?
3. Did the District Court err in its determination of
AND PROCEDURAL BACKGROUND
Lyn C. Rehm (Rehm), her son Erick M. Enz (Erick), and
Erick's wife Keelee M. Enz (Keelee) (collectively
"the Enzes") own a residential property in Kila
which they decided to sell. On November 7, 2014, they entered
into a "Lease Option Agreement" (Lease) with the
Raelunds. "Anthony Raelud [sic] of the Raelund Family
Trust" and "Candice Raelund of The Raelund Family
Trust" signed the Lease.
Erick handled the negotiation and administration of the
Lease. As Erick later testified, and the District Court found
credible, he met with an "older" couple who
introduced themselves as Anthony and Candy Raelund. Anthony
introduced a younger man as his son Anthony Raelund, Jr.
Erick and Keelee witnessed the older man sign the Lease as
"Anthony Raelund." Erick did not witness anyone
sign for Candice Raelund; rather, the document was later
The Lease provided that upon signing, the Raelunds would pay
$5, 000, which Erick would deem as $850 in rent and $4, 150
as a down payment toward the future purchase of the property.
The Raelunds would thenceforth pay $2, 500 per month; Erick
would deem $1, 500 as rent and credit $1, 000 toward future
purchase. Once the Raelunds made down payments totaling $30,
000, they would have 60 days to submit $239, 900 "paid
in cash, certified check, or cashier's check at
closing" to purchase the property. Somewhat
inconsistently, the Lease also provided that after the
Raelunds made a total of $30, 000 in down payment, Erick
would deliver a quit claim deed and the Raelunds would assume
the existing mortgages. The Lease also provided that if the
Raelunds defaulted, the Enzes would keep all monies paid as
Upon signing the Lease, the Raelunds presented Erick with $3,
500, rather than $5, 000 as agreed upon. Erick accepted the
payment, considering $850 as prorated rent for November, and
crediting the Raelunds with $2, 650 towards the down payment.
From then forward, per the Lease, the Raelunds were expected
to pay $2, 500 by the fifth day of each month. The Raelunds
did not submit a payment by December 5, 2014. On December 8,
2014, they paid only $1, 500, informing Erick they intended
to pay the additional $1, 000 in one year. From January 2015
through July 2016, the Raelunds paid $2, 500 each month,
albeit sometimes late and sometimes in two installments. When
Erick did not timely receive the August 2016 payment, he sent
the Raelunds a "Notice to Pay or Quit" on August
18, 2016, which stated they were required to make the August
payment, in full, within three days. The Notice provided that
if the Raelunds failed to do so, the Lease would terminate
and they would have to vacate the property immediately.
Erick testified that he gave the Raelunds "the benefit
of the doubt" when they began making late payments. When
he contacted the woman he knew as Candice Raelund to discuss
the payment issues, she accused Erick of failing to disclose
a mold problem in the bathroom. Erick offered to address the
issue, but she informed him the Raelunds had fixed it.
Candice Raelund also asked Erick for information about the
property's mortgages. He initially answered her questions
since she was a potential purchaser. However, he soon decided
not to share more information because the Raelunds were only
renting at that point.
The Kila property has two mortgages, both in Rehm's name
with Nationstar as the lender. At around this time,
Nationstar (Nationstar) contacted Erick and informed him Rehm
had given permission for other people to access her mortgage
account. Nationstar produced a written document purporting to
authorize "Antonius Anthony Raelund and CC Raelund to be
added to my account . . . . Please accept payments from
either party." Rehm denied she had given such permission
and she denied the signature on the document was hers.
On August 20, 2016, the Raelunds sent a payment for $1,
123.30, in the form of a money order made out to both Erick
and Nationstar Mortgage, via certified mail. On August 23,
Erick served the Raelunds with a Notice of Eviction. The
Raelunds continued to occupy the property and to send
payments in lesser amounts, with money orders issued
dual-payee to Erick and Nationstar, as follows: $1, 132.00 on
September 19; $1, 173.30 on October 21; $1, 132.00 on
November 24; and $1, 123.30 on December 14. Erick endorsed
each money order and forwarded it to Nationstar.
After the December 2016 payment, the Raelunds ceased paying
altogether. According to Erick's records, they had paid
$22, 650 towards the $30, 000 down payment.
On January 4, 2017, the Enzes, appearing pro se, filed a
Complaint in the Eleventh Judicial District Court in which
they sought: a writ of possession; past due rent and pre- and
post-judgment interest; actual damages for breach of
contract; treble damages for refusal to pay rent pursuant to
§ 70-24-422(5), MCA; quiet title; the right to retain
all monies paid under the Lease; an order declaring that the
Raelunds were not entitled to reimbursement for any alleged
repairs, maintenance, or improvements; and attorney fees and
On January 5, 2017, the Enzes received a "NOTICE and
BILL" regarding the property. The document stated, in
Please produce the verifiable documents proving that . . .
you actually own this property. . . . As a mere tenant living
on this property I will be happy to return it to its rightful
owner, provided that the owner compensates me for my labor,
time, efforts, payments, materials, and cash outlay for
services rendered to improve and maintain this property, to
its maximum habitability, and safe to dwell within and upon.
I shall now present this court and you and your company with
an itemized invoice payable on demand. . . . If not paid by
the specified time, I shall place a Mechanics lien and begin
other collections actions as necessary to receive my just
itemization of the alleged expenses included $12, 000 for a
foundation for a root cellar, $89, 000 for mold abatement,
$23, 000 to renovate a bathroom, $75, 000 to clear felled
trees and remove the trunks, $9, 600 for "House Cleaning
Services, " and $188, 160 for "Total Maintenance at
$10.00 per hour 24/7, " for a grand total of $605, 888.
The document was signed "Anthony-B: Raelund a natural
The Enzes unsuccessfully attempted to have the Raelunds
personally served with the Summons and Complaint. Process
Server Lazzaro A. Cutrone filed Affidavits of Due Diligence,
in which he averred he visited the Kila property on numerous
occasions and although he saw signs of occupation, no one
answered the door.
Cutrone also called several telephone numbers Erick provided.
His calls usually went unanswered. On one occasion, a male
answered and refused to identify himself, but stated he would
give the Raelunds a message. On another occasion, a female
who identified herself as "Bailey" answered, but
claimed she did not know the Raelunds. On January 22, Cutrone
reached a male who identified himself as "Dimitri"
and who informed Cutrone the Raelunds were out of town but
would meet with Cutrone on January 25. Neither
"Dimitri" nor any of the Raelunds contacted Cutrone
on January 25 and Cutrone was unable to make further contact
The Enzes then moved to serve the Raelunds by publication.
The District Court granted the motion and the Enzes published
the summonses in the Flathead Beacon three times in
On April 17, 2017, with no response from the Raelunds, Erick
filed a Notice of Intent to Request Entry of Default and
Entry of Default Judgment against Anthony Raelund, Candice
Raelund, and Raelund Family Trust. Erick posted a copy of
this Notice at the Kila property.
On April 18, 2017, "Antonius Raelund" filed a
Motion to Vacate Judgment for Fraud and Surprise,
with the parties captioned as:
"Antonius-Damascus; Raelund" Candi-Raelund
"Erick M.EnzKeelee M.Enz. And Lyn C Rehm"
On April 21, 2017, the Enzes, now represented by counsel,
filed a Motion for Entry of Default against Candice Raelund
and Raelund Family Trust. The Enzes also moved the District
Court to set a hearing on their Complaint, and to require
"Antonius-Damascus; Raelund" to establish he is a
real party in interest prior to the hearing.
On April 24, 2017, "Antonius-Damascus; Raelund"
filed a "Notice of Pendancy [sic] of Action a.k.a Notice
of Lis Pendens." He also filed a
On April 25, 2017, the District Court granted the Enzes'
motion to set a hearing, but denied their motion to require
"Antonius-Damascus; Raelund" to establish he is a
real party in interest prior to the hearing.
The hearing occurred on May 1, 2017. At the outset, the
District Court asked if "Anthony Raelund" was
present. A man responded in the affirmative and the court
seated him at the counsel table. Upon questioning, the man
further stated he was the person who had filed documents
under the name "Antonius-Damascus; Raelund."
The District Court also asked if "Candace Raeland"
was present. A woman responded in the affirmative.
Another woman, who later identified herself as "Candy
Raelund, " interposed that "Candace Raeland"
was not a defendant because "she didn't pay
anything." The District Court asked "Candy
Raelund" if she was "Candace Raeland."
"Candy Raelund" denied being Candice Raelund. The
woman who identified herself as "Candace Raeland"
confirmed to ...