GERGEN v PITSCH

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NO. 81-200 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981 WILLIE GERGEN I Plaintiff and Respondent, VS . DOUGLAS A. PITSCH, Defendant and Appellant. Appeal from: District Court of the Sixteenth Judicial District, In and for the County of Custer. Honorable A. B. Martin, Judge presiding. Counsel of Record: For Appellant: Felt and Martin, Billings, Montana For Respondent: Lucas and Monaghan, Miles City, Montana Submitted on briefs: July 9, 1981 Decided : Filed : w - hi 4 igi Mr. Justice Fred J. Weber delivered the Opinion of the Court. Douglas Pitsch appeals from a default judgment entered against him in the District Court of the Sixteenth Judicial District, Custer County. In the summer of We affirm. 1980, Douglas Pitsch and Willie Gergen entered into a contract for the sale and purchase of hay. Under the terms of the contract, Gergen was purchase 300 tons of hay from Pitsch at $45 per ton. to Gergen paid Pitsch the entire purchase price of the 300 tons. A dispute arose as to whether Gergen had received all of the hay due him under the contract. Gergen contacted an attorney, and on January 15, 1981, a complaint was filed in District Court. The complaint alleged that Gergen had purchased and paid for 300 tons of hay but had received only 268 tons because the named defendant, Pitsch, had refused to deliver or allow Gergen to pick up the remaining 32 tons. The complaint further alleged that the current price was $100 per ton and that Gergen was entitled to $3,200 from Pitsch for the hay which had not been delivered. On January 15, the same day that the complaint was filed, Gergen's attorney sent a letter to Pitsch. The letter contained the following statements: "At the request of Mr. Gergen we have filed suit for recovery of the 32 tons which have a current value of $100.00 per ton. The Sheriff at Hardin will shortly be serving the summons and complaint upon you. "This letter is written for the purpose of offering what I believe to be a reasonable and attractive compromise settlement. If you will immediately make arrangements that 32 additional tons of hay be made available for pick up by Mr. Gergen, then the suit will be dismissed. Please advise within one week." On January 19, Pitsch wrote a letter to Gergen's attorney. The letter generally denied f u r t h e r d e l i v e r i e s of hay. that Pitsch owed Gergen any The l e t t e r c o n c l u d e d w i t h t h e comment t h a t " I f he [ G e r g e n ] w a n t s t o f i l e s u i t I w i l l d o s o t o c o l l e c t f o r t h e e x t r a hay he h a u l e d f r o m my p l a c e . " J a n u a r y 23, On a summons and c o m p l a i n t w e r e p e r s o n a l l y s e r v e d upon P i t s c h by a d e p u t y s h e r i f f o f B i g Horn C o u n t y , Montana. On March 3 , a d e f a u l t judgment was e n t e r e d a g a i n s t P i t s c h . The court awarded set Gergen judgment the value $2,720 was m a i l e d l e v i e d on P i t s c h ' s Pitsch, through of plus the hay at costs. $85 p e r Notice t o P i t s c h on March 3. moved a s i d e t h e d e f a u l t judgment. the of E x e c u t i o n was bank a c c o u n t on March 4 . counsel, and entry of ton On March D i s t r i c t Court to 9, set The D i s t r i c t C o u r t d e n i e d t h e m o t i o n , and P i t s c h a p p e a l s . Douglas P i t s c h However, because we has are raised three affirming issues on appeal. t h e D i s t r i c t Court, we need o n l y r e a c h t h e t h r e s h o l d q u e s t i o n : Did t h e D i s t r i c t C o u r t e r r by r e f u s i n g t o s e t a s i d e t h e d e f a u l t judgment? R u l e 6 0 ( b ) , M.R.Civ.P., relieved from inadvertence, a judgment surprise, or p r o v i d e s t h a t a p a r t y may be upon a showing excusable of mistake, neglect. In his a f f i d a v i t i n s u p p o r t of t h e motion t o s e t a s i d e t h e d e f a u l t j u d g m e n t , D o u g l a s P i t s c h made t h i s s t a t e m e n t : . "6 I n t h e m i d d l e of J a n u a r y , 1 9 8 1 , I r e c e i v e d a l e t t e r f r o m J a m e s P. L u c a s , an a t t o r n e y i n Miles C i t y , M o n t a n a , d a t e d J a n u a r y 1 5 , 1 9 8 1 . A t r u e copy o f t h e l e t t e r is a t t a c h e d h e r e t o and marked E x h i b i t " A " . T h e l e t t e r s t a t e d t h a t 32 t o n s o f t h e o r i g i n a l 300 t o n s r e m a i n e d t o be d e l i v e r e d t o W I L L I E GERGEN, demanded t h a t t h e 32 t o n s be delivered, and requested an immediate r e s p o n s e from m e . "7. A few d a y s later, I received certain p a p e r s , t r u e c o p i e s o f which a r e a t t a c h e d When I h e r e t o and marked E x h i b i t "B". r e v i e w e d t h e p a p e r s , I r e c o g n i z e d t h e names o f t h e a t t o r n e y s , L u c a s and Monaghan, a s t h e f i r m which had s e n t m e t h e o r i g i n a l l e t t e r . I have never been sued o r s e r v e d w i t h a summons and c o m p l a i n t b e f o r e , s o I d i d n o t r e c o g n i z e t h a t t h e s e were o f f i c i a l c o u r t d o c u m e n t s , which r e q u i r e d t h a t I o b t a i n t h e s e r v i c e s o f c o u n s e l and f i l e a f o r m a l Answer I believed, rather, t h a t with the Court. t h e s e f a n c y p a p e r s r e p r e s e n t e d a n a t t e m p t by W I L L I E G E R G E N 1 s a t t o r n e y s t o s c a r e me i n t o making an i m m e d i a t e d e l i v e r y o f 32 a d d i t i o n a l t o n s o f h a y , and r e q u i r e d o n l y a r e s p o n s e t o the attorneys." While favored, is it Nelson v. true that Lennon default judgments ( 1 9 4 9 ) , 1 2 2 Mont. 506, are not 206 P.2d 5 5 6 , we m u s t a g r e e w i t h t h e D i s t r i c t C o u r t t h a t t h e c i r c u m stances present i n t h i s c a s e do n o t w a r r a n t a v a c a t i o n o f the The judgment. Gergen's attorney letter indicates intelligent. The sufficient clearly and against Pitsch. that s u i t had conclude that which that summons and stated Douglas Pitsch is both he complaint that a literate were s u i t had Gergenls attorney told Pitsch, been filed. Douglas W cannot, e Pitsch was so sent to and legally been filed by l e t t e r , under these mistaken as facts, to the n a t u r e of what was t r a n s p i r i n g t h a t t h e judgment a g a i n s t him s h o u l d be s e t a s i d e . Also, h i s f a i l u r e t o respond t o t h e complaint does not c o n s t i t u t e excusable n e g l e c t . The judgment o f t h e D i s t r i c t C o u r t i s a f f i r m e d . We c o n c u r : q - & F L & ~ , ~ )-Pi) , , . , (9 Chief J u s t i c e stices

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