IN THE MATTER OF THE ESTATE OF: LUCILLE K. HADER, Deceased.
Submitted on Briefs: September 12, 2018
FROM: District Court of the Seventeenth Judicial District, In
and For the County of Blaine, Cause No. DP-2013-24 Honorable
Yvonne Laird, Presiding Judge
Appellant: Kathleen A. Molsberry, Lowy Law, PLLC, Missoula,
Appellee:Jennifer E. Forsyth, Hi-Line Law, PLLC, Havre,
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
Richard Hader ("Richard"), as personal
representative of the estate of Lucille K. Hader
("Lucille"), appeals an order from the Seventeenth
Judicial District Court, Blaine County, denying his motion to
set aside default judgment. We affirm.
Lucille died on November 19, 2012. The District Court
appointed Lucille's son Richard as the personal
representative of the estate in September 2013. After two
extension orders from the District Court, in which the court
found that good cause existed for failure to close the estate
within two years under § 72-3-1015(2), MCA, the District
Court held a third status hearing in January 2018.
Richard's counsel failed to appear at the hearing, and
the District Court closed the estate on a motion from Roxann
Caraway, Lucille's granddaughter. Richard filed a motion
to set aside the default judgment under M. R. Civ. P. 60(b).
The District Court denied the motion, finding that Richard
failed to state any injury to the estate if default judgment
were to stand. Richard appeals.
We review a district court's denial of a motion to set
aside a default judgment for a slight abuse of discretion.
DeTienne v. Sandrock, 2017 MT 181, ¶ 22, 388
Mont. 179, 400 P.3d 682. A court may set aside a default
judgment if the defendant shows that the judgment resulted
from "mistake, inadvertence, surprise, or excusable
neglect." M. R. Civ. P. 60(b)(1). In analyzing a motion
to set aside a default judgment under M. R. Civ. P. 60(b)(1),
the district court considers: (1) whether the defaulting
party proceeded with diligence; (2) whether the defaulting
party's neglect was excusable; (3) whether the defaulting
party had a meritorious defense to the claim; and (4) whether
the judgment would affect the defaulting party injuriously if
permitted to stand. DeTienne, ¶ 29. Our review
focuses on whether the District Court abused its discretion,
even slightly, when conducting this analysis.
DeTienne, ¶ 22.
The District Court concluded that Richard proceeded with
diligence, because he filed his motion to set aside the
judgment within one week of its issuance. The court
determined that the neglect of Richard's counsel was
excusable, because his counsel had attempted to appear
telephonically at the third status hearing, not realizing she
had to request the court's approval to do so. These
conclusions are not challenged on appeal. Richard alleges
that allowing the closing of the estate to stand would be
injurious to the estate.
Before the District Court, Richard argued that allowing the
judgment to stand would be injurious to him, not to the
estate. He attached an affidavit to his reply brief,
challenging several property conveyances to Caraway that
occurred years before Lucille's death and alleging that
Caraway was in possession of and has refused to return
personal property belonging to the estate. On appeal, Richard
argues that the estate would be injured if it is not
reopened, because he will not be able to recover this
property. At no point in the five years that the estate was
open, however, did Richard file an action to recover
possession of property or to determine the title to property.
See § 72-3-606(2), MCA. Richard's alleged
injuries to the estate are speculative. Richard has failed to
carry his burden on appeal to show that the District Court
abused its discretion in determining that the estate would
not be injured if the default judgment was not set aside. We
conclude that the District Court did not slightly abuse its
discretion in denying Richard's motion to set aside
We have determined to decide this case pursuant to Section I,
Paragraph 3(c) of our Internal Operating Rules, which
provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law
or by the clear application of applicable standards ...