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Everett v. Harbert

Supreme Court of Montana

April 16, 2019

TONY EVERETT, Plaintiff and Appellee,
v.
KIMBERLEY D. HARBERT, Defendant and Appellant.

          Submitted on Briefs: January 16, 2019

          APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. CDV-17-342 Honorable Kathy Seeley, Presiding Judge.

          For Appellant: Amy E. Hall, Hannah S. Cail, Montana Legal Services Association, Helena, Montana Lucas Hamilton, Luxan & Murfitt, PLLP, Helena, Montana

          For Appellee: Charles A Smith, Law Offices of Charles A. Smith, Helena, Montana

          OPINION

          Ingrid Gustafson Justice.

         ¶1 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 Montana Reports.

         ¶2 The District Court granted Harbert's M. R. Civ. P. 60(b) motion to set aside the default judgment outside of the sixty-day period set forth in M. R. Civ. P. 60(c)(1). Harbert appeals, believing her M. R. Civ. P. 60(b) motion to set aside the default judgment and decree quieting title to real estate located outside of Helena, Montana, to plaintiff Tony Everett was deemed denied by operation of law. We affirm the District Court's order granting Harbert's motion to set aside the default judgment and decree quieting title pursuant to M. R. Civ. P. 60(d)(3).

         ¶3 For the past thirty years, Harbert has resided on real estate located outside of Helena, Montana (the Property). Harbert received title to the Property from her mother, conveyed the Property to herself and her now deceased husband in 1992, and annually paid property taxes on the Property until 2017.

         ¶4 Everett owns Modern Pawn, a business located in Helena. On December 12, 2014, Harbert executed a pawn contract with Modern Pawn for a cash loan of $210, listed the Property as security for the loan, and signed a quitclaim deed of the Property to Everett. Harbert subsequently repaid the loan and Everett returned the quitclaim deed.

         ¶5 In November 2015, Harbert executed another pawn contract for a cash loan of $700, again secured by the Property and the same quitclaim deed. Harbert continued to obtain and re-pay short-term cash loans from Modern Pawn after November 2015. However, Everett claimed Harbert did not make payments on the $700 loan, and on April 30, 2017, brought an action to quiet title to the Property in District Court.

         ¶6 A process server was unable to serve Harbert between May 12, 2017, and June 2, 2017. In his affidavit to the District Court requesting service by publication, Everett stated he diligently searched and inquired after Harbert, but was unable to serve her personally. The District Court ordered service by publication, with which Everett complied. Harbert did not see the publication and did not answer the quiet title action. Harbert obtained cash loans from Modern Pawn in May and June of 2017, and continued to reside on the Property without receiving any notice of Everett's action against her. On August 4, 2017, the Clerk of Court entered a default judgment against Harbert. Based on Harbert's failure to answer, on March 29, 2018, the District Court entered the default judgment and a decree quieting title of the Property to Everett.

         ¶7 In April 2018, Everett sold the Property to Joseph Trowbridge. Trowbridge filed an action in Justice Court to evict Harbert from the Property. On May 26, 2018, Harbert was personally served with notice of Trowbridge's action to evict her from the Property. This was the first time Harbert received notice of Everett's quitclaim action and the default judgment against her.

         ¶8 On June 11, 2018, Harbert filed a M. R. Civ. P. 60(b) motion (Rule 60(b) motion) to set aside the default judgment. The District Court did not rule on this motion within sixty days of its filing. Believing her motion was deemed denied by operation of M. R. Civ. P. 60(c)(1), Harbert appealed on August 17, 2018. M. R. Civ. P. 60(c)(1) requires a district court to rule on a M. R. Civ. P. 60(b) motion within sixty days.

         ¶9 On August 28, 2018, the District Court granted Harbert's motion to set aside the default judgment and decree quieting title outside of the sixty-day period per M. R. Civ. P. 60(c)(1) based on deficient service of process and fraud. The District Court found it troubling that Harbert resided at the Property and obtained cash loans from Modern Pawn the same months Everett's ...


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