No. 91-329 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

BOARD OF DIRECTORS OF THE EDELWIESS OWNERS' ASSOCIATION, a n0nprofit corporation, in its corporate capacity, and on behalf of 

individual owners of Edelweiss Condominiums, 

Plaintiff and Respondent, 

M.V. (MAX) McINTOSH and MAURICE THOMAS SAULINER, individually and 

d/b/a D & M Property Management, Inc., METRO CITY REALTY AND 

INSURANCE OF EDMONTON, ALBERTA, and JOHN DOE I, 11, AND 111, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable ~ichael H. Keedy, Judge presiding. 

For Appellant: 

William E. Hileman, Jr., Hedman, Hile 

Whitefish, Montana. 

For Respondent: 

Debra D. Parker, Murphy, Robinson, Heckathorn & 

Phillips, Kalispell, Montana. 

Filed: 

Submitted on briefs: October 24, 1991 

" Fa Decided: December 19, 1991 1' 
Justice Fred J. Weber delivered the Opinion of the Court. 

Defendants McIntosh and ~aulnier, individually and doing 

business as D & M Property Management, Inc., and Metro City Realty 

and Insurance of Edmonton, Alberta (herein called defendants), 

appeal from the order of the ~istrict Court for the Eleventh 

Judicial District, Flathead County, refusing to set aside the 

default judgment entered against them. We affirm. 

The only issue is whether the District Court erred by refusing 

to set aside the default judgment against the defendants. 

The complaint of the plaintiff alleges that the Edelweiss 

Owners' Association is an incorporated, non-profit association of 

owners of fractional interest in the Edelweiss Condominiums Project 

on Big Mountain, Whitefish, Montana. The complaint further alleges 

that the defendants submitted a proposal to manage the condominium 

project and to act as brokers for the purpose of renting units for 

owners who elected to make the units available for rent; the 

proposal was accepted by the plaintiff; and that the defendants 

assumed the management and control of the property on August 1, 

1989. The further allegation is that the defendants were 

terminated as managers effective February 28, 1990. The complaint 

alleges that during the period of time the defendants managed the 

property they collected various association fees and rents. Next 

the complaint alleges that the defendants failed to provide a 

detailed and itemized accounting of plaintiff's funds or of rents 

and deposits collected; that the defendants were obligated to 

collect and hold funds for the benefits of the plaintiff and to 

provide an accounting; and in the alternative that despite the 
repeated demands of the plaintiff, the defendants have refused to 

deliver money collected and to account for the same, and that the 

defendants' actions constitute conversion. Following are 

significant dates and events: 

June 8, 1990 Personal service made on defendant 

Saulnier, individually and d/b/a D & 

M Property Management, Inc. 

June 18, 1990 Personal service made on defendant, 

McIntosh 

July 3, 1990 "Statement of Defence" (sic) was 

received by clerk of District Court 

without an appearance fee 

July 5, 1990 Clerk of district court letter to 

defendants requesting appearance fee 

of $160. (Note that $160 fee has 

never been paid.) 

July 9, 1990 Default of the defendants McIntosh 

and Saulnier and D & M Property 

Management, Inc. was entered in the 

district court. 

August 7, 1990 DefendantMclntoshwrotetothe clerk 

of the District Court requesting 

further information with regard to 

fees . 

September 10, 1990 Personal service on the defendant 

Metro City Realty and Insurance of 

Edmonton, Alberta. 

September 12, 1990 Hearingontheplaintiffs' motion for 

default judgment, and entry of 

findings of fact and judgment 

establishing that based on pleadings 

and testimony the court found that 

the defaults of McIntosh, Saulnier 

and D & M Property Management, Inc. 

were properly entered and that the 

plaintiffs were entitled to judgment 

in the amount of $183,593.70 and 

costs. Judgment entered for 

$183,593.70 together with costs of 

$161.24. 

October 3, 1990 Default entered of defendant 

Metro City Realty and Insurance of 
Edmonton, Alberta. 

October 26, 1990 Amendment to findings of fact and 

judgment so that previous judgment 

included Metro City Realty and 

Insurance of Edmonton, Alberta. 

April 9, 1991 Defendants1 motion to set aside 

default judgment. 

May 10, 1991 Trial court's memorandum and order 

denying motion to set aside default 

judgment . 

The "Statement of Defence" (sic), which was not filed because of 

the failure to pay the appropriate appearance fee of $160.00 

remained in the court file. At the time of the hearing prior to 

judgment, the District Court acknowledged an awareness of that 

Statement but refused to consider the same because it had not been 

properly filed. The Statement is a number of pages in length and 

contains a literate explanation of theories of defense and purports 

to have been signed by defendants Saulnier and McIntosh. 

The issue presented is whether the District Court erred in 

refusing to set aside the default judgment against the defendants. 

Defendants argue that the court should relieve them from the 

judgment pursuant to Rule 60(b), M.R.Civ.P., which in pertinent 

part states: 

On motion and upon such terms as are just, the court may 

relieve a party or a party's legal representative from a 

final judgment, order, or proceeding for the following 

reasons : (1) mistake, inadvertence, surprise, or 

excusable neglect; (2) newly discovered evidence which by 

due diligence could not have been discovered in time to 

move for a new trial under Rule 59(b) ; (3) fraud (whether 

heretofore denominated intrinsic or extrinsic), 

misrepresentation, or other misconduct of an adverse 

party; . . . or (6) any other reason justifying relief 

from the operation of the judgment. The motion shall be 

made within a reasonable time, and for reasons (I), (2), 

and (3) when a defendant has been personally served, 

whether in lieu of publication or not, not more than 60 
days after the judgment, order or proceeding was entered 

or taken . . . . 

The standard to be applied on the setting aside of default judgment 

was stated in Blume v. Metropolitan Life Ins. Co. (1990) , 242 Mont. 

465, 791 P.2d 784. In Blume this Court stated that where a trial 

court denies a motion to set aside a default judgment, the standard 

of review is that no great abuse of discretion is needed to 

reverse, or in other words, that slight abuse is sufficient to 

justify reversal of such an order. In applying that test to the 

present case, we have concluded there was no abuse of discretion on 

the part of the District Court. 

The defendants attempt to argue that relief should be granted 

under subparagraphs (I), (2) and (3) of Rule 6O(b) which cover the 

elements of mistake, inadvertence, surprise, excusable neglect, 

newly discovered evidence, and fraud, misrepresentation, or other 

misconduct. Requests for relief from final judgment on those 

grounds are required by the above quoted rule to be made not more 

than 60 days after the judgment. Here the motion was made 165 days 

after the entry of judgment. We therefore affirm the ~istrict 

Court's determination that the defendants are precluded from moving 

to set aside the judgment on the grounds enumerated in Rule 

60(b) (1) 1 (2) and (3) 

The remaining ground argued by the defendants is that they are 

entitled to relief under subsection (61, the general catch-all 

clause which covers any other reason justifying relief from the 

operation of the judgment. In support of their motion, the 

defendants filed a lengthy affidavit which purported to be the 

affidavit of defendant Saulnier. That affidavit was nat signed by 
Saulnier. The result is that the defendants have failed to 

establish any of the facts which have been referred to in the 

Saulnier affidavit. While the defendants contend that they are 

Canadian citizens unfamiliar with the laws of Montana, that they 

acted pro se, that they did file an answer, and that they would 

have presented contradictory evidence, none of these factors have 

been established in fact by affidavit or other appropriate proof. 

We conclude that this case is similar to Gergen v. Pitsch 

(1981), 194 Mont. 70, 634 P.2d 652. In Gerqen the defendant was 

personally served with summons and complaint and the defendant 

subsequently wrote a letter to the plaintiff's attorney. This 

Court concluded that the letter which the defendant sent to 

Gergen's attorney indicated that the defendant was both literate 

and intelligent, that the summons and complaint were legally 

sufficient and clearly stated a suit had been filed. We therefore 

held that under those facts, we could not conclude that the 

defendant was so mistaken as to the nature of what was transpiring 

that the judgment against him should be set aside. 

In a similar manner, in the present case, summons and 

complaint were legally sufficient and complete. The "Statement of 

Defence1' (sic) established that the defendants were literate. 

Clearly the summons and complaint were legally sufficient to 

establish that a suit had been filed against the defendants. The 

defendants completely failed to present facts sufficient to 

establish excusable neglect or any other basis or reason justifying 

relief from the operation of the default judgment. In addition, 

the defendants here acknowledged receipt of the notice from the 
District Court of the requirement for filing fees but apparently 

assumed that their "Statement of Defence" (sic) would still be 

considered. 

Defendants further contend that judgment should be set aside 

because they never received notice of entry of the default 

judgment. In Schmidt v. Jomac, Inc. (1982), 196 Mont. 323, 327, 

639 P.2d 517, 520, this Court held that "under Rules 55(a) and 

77 (d) , M.R. Civ. P. , no notice of entry of a default judgment need be 

sent to the defendant by the clerk of the district courtM. 

We conclude that the defendants have failed to establish any 

reason justifying relief from the operation of the default judgment 

under Rule 60(b) (6). We hold that the District Court did not abuse 

its discretion in refusing to set aside the default judgment. We 

conclude that the defendants have failed to establish any abuse of 

discretion on the part of the District Court under the test in 

I Blume 791 P.2d at 785. 

Affirmed. 

We Concur: / 

Chief Justice 
December 19, 1991 

CERTIFICATE OF SERVICE 

I hereby certify that the fdlowing order was sent by United States mail, prepaid, to the 

following named: 

William E. Hilernan, Jr. 

HEDMAN, HILEMAN & LACOSTA 

433 Second Street 

Whitefish, MT 59937 

Debra D. Parker 

MURPHY, ROBINSON, HECKATHORN & PHILLIPS, P.C. 

P.O. Box 759 

Kalispell, MT 59903-0759 

ED SMITH 

CLERGQF THE SUPREME COURT