Hoyt v. Eklund

No. 91-011
IN THE SUPREME COURT OF THE STATE OF MONTANA

JOHN C. HOYT,
Plaintiff and Respondent,
v.
RUSSELL G. EKLUND, d/b/a
EKLUND ENTERPRISES,
Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John M. McCarvel, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
John C. Doubek; Small, Hatch, Doubek & Pyfer,
Helena, Montana
For Respondent:
John C. Hoyt; Hoyt & Blewett, Great Falls, Montana

Submitted on briefs: April 18, 1991

Filed:

. Clerk
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Defendant and appellant, Russell G. Eklund, doing business as
Eklund Enterprises, appeals from an order of the District Court of
the Eighth Judicial District, Cascade County, denying his motion
to set aside a default and default judgment. We reverse and vacate
the default and default judgment.
T h e issues raised on appeal are as follows:

1. Did the District Court err in refusing to set aside a
default judgment entered by the clerk of court when the plaintiff I s
claim was not for a sum certain or for a sum capable of being made
certain by computation?
2. Did the District Court abuse its discretion in refusing
to set aside the entry of default?
Plaintiff and respondent, John C. Hoyt, contracted with the
defendant to construct a residence on property located in Cascade
County. The facts surrounding the project are disputed and unclear
from t h e record. T h e plaintiff alleges that the defendant did not
complete construction and abandoned the project. The plaintiff
claims that much of the work had to be redone. The defendant, on
the other hand, asserts that the plaintiff made numerous changes
and modifications in the plans, and that the plaintiff owes him
$39,548 for materials and labor.

T h e defendant filed a mechanic's lien against the home and

retained the law firm of Small, Hatch, Doubek 61 Pyfer to represent
him. In ~ p r i land May 1989, the plaintiff and one of the partners
in the firm exchanged a series of letters regarding the plaintiff's
problems with the construction. On May 16, 1989, the attorney
inspected the house and asked the plaintiff for a list of specific
complaints. On May 23, 1989, the plaintiff forwarded to the
attorney a ten-page memo detailing defects in the house. On
May 26, 1989, the plaintiff sent another letter to the attorney,
describing an additional problem with the dwelling. The attorney
failed to reply to either letter, and on July 5, 1989, the
plaintiff again wrote, asking the attorney to please respond. When
the attorney still failed to reply, the plaintiff on July 18, 1989,
wrote directly to the defendant, threatening him with a lawsuit.
Neither party took further action in the matter until April 3 ,
1990, when another partner in the firm representing the defendant

filed a complaint to foreclose on the mechanic's lien. The
plaintiff was not served, however, as the attorney intended to
undergo discovery on the matter before completing service.
On May 24, 1990, the plaintiff wrote to the second attorney,
stating that he understood that the lien foreclosure action had
been commenced and suggesting that the attorney serve him so that
he might appear with a counterclaim. In the letter, the plaintiff
indicated that he would wait one week to determine the defendant's
intentions and that he would file a separate suit if he did not
receive a reply. The following day, angry that yet another problem
with the house had appeared, the plaintiff again wrote to the
second attorney, stating that he was proceeding to file a complaint
against the defendant and that he would consent to consolidate the
action with the lien foreclosure suit. He received no reply to
either letter.
On May 29, 1990, the plaintiff filed the complaint in this
action. The defendant was personally served on the same day. The
defendant forwarded a copy of the summons and complaint to the
second attorney the following day. The second attorney, however,
never received the complaint and therefore did not appear on behalf
of the defendant.
On July 12, 1990, the clerk of court entered the defendant's
default. On August 8, 1990, pursuant to the plaintiff's affidavit,
the clerk entered a default judgment against the defendant in the
amount of $86,000.
The defendant learned of the default on September 17, 1990.
That day, he called the second attorney to inquire about the status
of the action and discovered for the first time that the attorney
had not received the summons and complaint by mail and that the
attorney was unaware that an action had been started by the
plaintiff.
On September 21, 1990, the defendant filed a motion to set
aside the default judgment and consolidate the plaintiff's
complaint with the lien foreclosure action. Oral argument was held
on the matter, after which the District Court denied the motion.
This appeal followed.
 The d e f e n d a n t f i r s t a r g u e s t h a t t h e D i s t r i c t Court e r r e d i n
f a i l i n g t o s e t a s i d e t h e d e f a u l t judgment e n t e r e d by t h e c l e r k of

c o u r t when t h e p l a i n t i f f I s c l a i m was n o t f o r a sum c e r t a i n o r a sum

c a p a b l e of b e i n g made c e r t a i n by computation. W e agree.

Rule 5 5 ( b ) , M. R. Civ. P. , d e l i n e a t e s t h e p r o c e d u r e f o r o b t a i n i n g
a d e f a u l t judgment. I t provides i n p e r t i n e n t p a r t :

Judgment by d e f a u l t may be e n t e r e d a s f o l l o w s :
(1) B y t h e c l e r k . When t h e c la in tiff's c l a i m a q a i n s t
a d e f e n d a n t i s f o r a sum c e r t a i n o r f o r a sum which can
by computation be made c e r t a i n , t h e c l e r k upon r e q u e s t
of t h e c la in tiff and upon a f f i d a v i t of t h e amount due
s h a l l e n t e r judsment f o r t h a t amount and c o s t s a q a i n s t
t h e d e f e n d a n t , i f h e h a s been d e f a u l t e d f o r f a i l u r e t o
a p p e a r and i f h e i s n o t a n i n f a n t o r incompetent p e r s o n ,
and h a s been p e r s o n a l l y s e r v e d . N judgment by d e f a u l t
o
shall b e e n t e r e d by t h e c l e r k when s e r v i c e has been by
publication.

(2) By t h e c o u r t . I n a l l o t h e r c a s e s t h e p a r t y e n t i t l e d
t o a i u d q n e n t by d e f a u l t s h a l l a p p l y t o t h e court
therefor . . .. I f t h e p a r t y a g a i n s t whom judgment by
d e f a u l t i s sought h a s appeared i n t h e a c t i o n , he . , .
s h a l l be s e r v e d w i t h w r i t t e n n o t i c e of t h e a p p l i c a t i o n
f o r judgment a t l e a s t 3 days p r i o r t o t h e h e a r i n g on s u c h
application. I f , i n order t o enable t h e court t o e n t e r
judgment o r t o c a r r y it i n t o e f f e c t , it i s n e c e s s a r y t o
t a k e an a c c o u n t o r t o d e t e r m i n e t h e amount of damages o r
t o e s t a b l i s h t h e t r u t h of any averment by e v i d e n c e o r to
make an i n v e s t i g a t i o n of any o t h e r m a t t e r , t h e c o u r t may
conduct such h e a r i n g s o r o r d e r such r e f e r e n c e s a s it
deems n e c e s s a r y and proper and s h a l l a c c o r d a r i g h t of
t r i a l by jury t o t h e p a r t i e s when and a s r e q u i r e d by any
s t a t u t e of t h e s t a t e of Montana. (Emphasis added.)
Rule 5 5 ( b ) , M.R.Civ.P.
Under the rule, the clerk of c o u r t may enter a default
judgment against a p a r t y w h o has been served b u t who has f a i l e d to

a p p e a r i f t h e c l a i m a g a i n s t t h e p a r t y is for a sum c e r t a i n o r a sum

c a p a b l e of b e i n g made c e r t a i n by computation. Rule 5 5 ( b ) ( l ) ,
M.R.C~V.P. If the amount of the claim is not for a sum certain or
a sum capable of being made certain by computation, the party
seeking the default judgment must apply to the district court,
which may hold a hearing on the matter. Rule 55(b) (2), M.R.Civ.P.
In the complaint filed in the present case, the plaintiff
failed to specify the numerical amount of his claim. Instead, he
sought monies compensating him for an uninhabitable dwelling,
rebuilding or completing the residence, and emotional distress.
He also sought punitive damages, prejudgment interest, costs, and
attorney's fees. In the affidavit accompanying his praecipe for
default judgment, he stated:
Plaintiff will have to expend the sum of at least
$86,000.00 to correct the gross, shoddy workmanship
performed by Defendant and re-do a substantial portion
of the dwelling, including replacing all doors, painting,
installing adequate heating and air conditioning, and
replacing items improperly installed or built by
Defendant as well as completing said dwelling. (Emphasis
added. )
The sum of $86,000 was merely an estimate of the amount of
damages the plaintiff expected to incur in completing the house.
The damages did not constitute a sum certain and were not capable
of being made certain by computation. Therefore, the clerk of
court did not have the authority to enter the default judgment.
The District Court committed reversible error in refusing to vacate
the default judgment.
The defendant next argues that the District Court abused its
discretion in refusing to set aside the entry of default. Once
again, we agree.
 The policy of the law is to favor trial on the merits.
Consequently, no great abuse of discretion need be shown to warrant
a reversal of a district court order denying a motion to set aside
a default. Lords v. Newman, 212 Mont. 359, 366, 688 P.2d 290, 294
(1984).
Rule 55(c), M.R.Civ.P., allows the district court to set aside
an entry of default and a default judgment. It provides in
pertinent part:
For good cause shown the court may set aside an entry of
default and, if a judgment by default has been entered,
may likewise set it aside in accordance with Rule 60 (b) .
Rule 55(c), M.R.Civ.P.
In Cribb v. Matlock Communications, Inc., 236 Mont. 27, 30,
768 P.2d 337, 339 (1989), this Court distinguished the standard
for setting aside an entry of default from the standard for
vacating a default judgment. We noted that an entry of default may
be set aside upon a showing of "good cause,'' which is a more
flexible and lenient standard than the requirements for vacating
a default judgment under Rule 60(b), M.R.Civ.P. We held that the
district court should consider the following factors when
determining if the defendant has shown good cause for setting aside
an entry of default:
(1) [Wlhether the default was willful, (2) whether the
plaintiff would be prejudiced if the default should be
set aside, and (3) whether the defendant has presented
a meritorious defense to plaintiff's claim.
236 Mont. at 30, 768 P.2d at 339. We additionally held that
the court must balance the interests of an adjudication of the
claim on the merits against the interests of the "orderly and timely
administration of justice. ~ribb,236 Mont. at 30, 768 P.2d at 339.

The facts here do not establish willfulness by the defendant or
his attorneys. At most, this situation presents a case of excusable
neglect by the defendant for failing to follow-up on the status of
the complaint and a possible mistake in delivery of the letter
containing the summons and complaint. Admittedly, the defendant's
attorneys should have responded to the plaintiff's correspondence.
However, threats of lawsuits are common among disgruntled
individuals, threats that are not always carried out. In fact, in
this case the plaintiff had warned the defendant that he would file
suit over ten months before he actually commenced the action.
In addition, the plaintiff will not be prejudiced by setting aside
the default. As soon as he discovered the default, the second
attorney diligently pursued the lawsuit by promptly moving to set
aside the judgment. Only a few months elapsed between filing the
complaint and the motion to set aside. The plaintiff's ability to
prosecute the action was not impaired by this delay in defending the
suit.
Finally, with the mechanics lien foreclosure suit, the defendant
offered a defense to plaintiffls complaint that, if proven, is meri-
torious. Although the plaintiff argues that the defendant is liable
for damages arising out of the defendant's shoddy construction effort,
the defendant contends that the plaintiff owes him money for the
work performed on the residence.
We conclude that in the present case the District Court abused
its discretion in refusing to set aside the entry of default.
Considering the fact that the defendant's suit to foreclose the
mechanic's lien arises out of the same set of facts as the case at
hand, the administration of justice may very well be aided by
allowing an adjudication on the merits of both claims.
We reverse and vacate the default and the default judgment.
The case is remanded for further proceedings consistent with this
opinion. 1

We Concur:

Justices
Justice Terry N. ~rieweilerconcurring in part and dissenting in
part.
I concur with that part of the majority opinion which sets
aside the clerk of court's entry of default judgment for the reason
that plaintiff Is complaint was not for a sum certain or a sum which
by computation could be made certain.
I dissent from that part of the majority opinion which finds
that the District Court abused its discretion when it refused to
set aside the entry of default against the defendant pursuant to
Rule 55 (c), M.R.Civ.P.
According to the terms of Rule 55(c), an entry of default can
only be set aside for "good cause." In Cribb v. Matlock
Communications, Inc. (1989), 236 Mont. 27, 30, 768 P.2d 337, 339,
we held that in addition to those factors cited by the majority,
a District Court may consider lawhether there was a good faith

mistake," by the defendant in deciding whether good cause exists
for setting aside an entry of default. In this case, there was
ample evidence upon which the District Court could have concluded
that the defendant's failure to appear was not based upon a good
faith mistake.
From May 23, 1989, to May 25, 1990, plaintiff wrote to

defendant or his attorneys on six different occasions in order to
provide information regarding the inadequacy of the work done on
his house and requesting information from the defendant. None of
these letters were responded to by the defendant or his attorneys.
10
 On May 29, 1990, defendant was served with a summons and
complaint. His affidavit indicates that he mailed it to his
attorney the next day. However, in spite of the fact that receipt
by his attorney was never acknowledged, he did not bother checking
with his attorney regarding the status of the complaint for nearly
four months, or until after the default judgment was entered
against him.
The District Court was justified in concluding that the
defendant's attitude about the plaintiff's complaints was cavalier
both before and after default was entered. It is apparent from the
District Court's order that defendant's habitual non-responsiveness
was a factor in the District Court's conclusion that "good cause"
did not exist for setting aside the entry of default.
As pointed out by the majority, we also held in Cribb, supra,
that to establish "good cause" for setting aside an entry of
default, the defendant must establish a ''meritorious defense to
plaintiff's claim."
In this case, the defendant offered no meritorious defense to
plaintiff's complaint as part of his motion to set aside the entry
of default. The defendant filed no proposed answer; he did not
offer any evidence; he did not request oral argument; and he did
not present any evidence of a meritorious defense at the time set
for the oral argument which was requested by the plaintiff.
The defendant filed a motion to set aside default in which he
stated that the motion was based "on the grounds and for the
11
reasons set forth in the affidavits of Russell Eklund and John C.
Doubek attached hereto." The affidavit of Russell G. Eklund in
essence stated that the day after he received the summons and
complaint which had been served upon him, he sent it to his
attorney and assumed that he had received it. Defendant also
states that he authorized that same attorney to file a mechanic's
lien foreclosure action against the plaintiff previously, but
provided no information about the nature of the action, nor the

substance of his complaint in that action. Defendant's affidavit
did not even specify that the foreclosure action related to the
same piece of property which was the subject of plaintiff's
complaint.
John Doubek's affidavit simply states that on September 17,
1990, he received a telephone call from his c l i e n t a s k i n g why a

default judgment had been entered against him and that he was
surprised by the question because he had never previously been
aware of the summons and complaint. He also mentioned having
previously filed a foreclosure action against the plaintiff , but
again, gave no particulars about the foreclosure action, and
specifically, did not even relate the foreclosure to the same piece
of property which was the subject of the plaintiff's complaint.
There was no other evidence offered, In fact, the attorney
who appeared at the time set for oral argument was not even the
same attorney who filed an affidavit in support of the defendant's
motion to set aside the entry of default. He was unable to add
anything to the information set forth in the affidavit.
The majority concludes that the defendant's mechanic's lien
presented a meritorious defense to the plaintiff's action.
However, at no time prior to the District Court's order denying the
defendant's motion to set aside the entry of default was the
defendant's mechanic's lien or the action to foreclose that lien
ever a matter of record in this action. Neither was there any
explanation of the nature of that claim which would in any way
enable the District Court to determine whether it constituted a
meritorious defense to the plaintiff's complaint in this case.
Finally, plaintiff was not even in a position to respond to
any issue created by the foreclosure action because he had never
been served with it.
Under these circumstances, it can hardly be argued that the
District Court abused its discretion (even slightly) when it
concluded that no meritorious defense had been presented by the
defendant.
I strongly support the principle that most cases should be
resolved on their merits. However, I also strongly believe that
in exercising their discretion granted pursuant to Rule 55(c),
District Judges should be entitled to rely on the record before
them and should not have to speculate that some unknown set of
facts might constitute a meritorious defense to the plaintiff's
complaint.
13
 For these reasons, I would affirm the District Court's denial
of the defendant's motion to set aside the clerk's entry of default
for the plaintiff.
 a4
July 3,1991

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:

John C. Doubek
Small, Hatch, Doubek & Pyfer
39 Neil1 Ave.
Helena. MT 59601

John C. Hoyt
Hoyt & Blewett
P.O. Box 2807
Great Falls, MT 59403

ED SMITH

ST
CLERK OF THE SUPREME COURT

BY:
Deputy