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No. 00-159 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2001 MT 110N 

IN THE MATTER OF THE ESTATE OF 

FLOYD R. (PEPPER) MARTIN, Deceased. 

HELEN C. MARTIN, 

Petitioner and Respondent, 

v.

SUSAN MARTIN SCHOEBEL, 

Personal Representative, 

Respondent and Appellant. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

Honorable Dorothy McCarter, Judge Presiding

COUNSEL OF RECORD:

For Appellant:

Gene A. Picotte, Attorney at Law, Helena, Montana 

For Respondent:

Thomas K. Harlen, Harlen, Thompson & Parish, P.C., Helena, Montana

Submitted on Briefs: December 14, 2000 

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Decided: June 29, 2001

Filed:

__________________________________________

Clerk

Justice W. William Leaphart delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c) Montana Supreme Court 1996 Internal Operating 

Rules, the following decision shall not be cited as precedent but shall be filed as a public 

document with the Clerk of the Supreme Court and shall be reported by case title, 

Supreme Court cause number and result to the State Reporter Publishing Company and to 

West Group in the quarterly table of noncitable cases issues by this Court.

¶2 This case arises from a Petition for Settlement and Liability of Personal Representative 

filed by Helen Martin (Helen) in connection with the administration of the estate of her 

husband, Floyd Martin. After the personal representative, Susan Schoebel (Schoebel), 

failed to respond to the petition and a subsequent show cause order, the First Judicial 

District Court awarded judgment against her in the amount of $36,234.07. Susan appeals 

the District Court's entry of judgment against her. We affirm.

FACTUAL BACKGROUND

¶3 Floyd Martin died on July 30, 1993. The bulk of his estate consisted of a business 

which Schoebel, the estate's personal representative, attempted to operate over the course 

of the next seven years. Concerned that estate assets we being mismanaged, Helen 

petitioned the District Court for an accounting, to compel distribution, and to adjudicate 

individual liability of the personal representative. 

¶4 A hearing on the petition was set for November 5, 1999. Notice was sent to Schoebel 

via her attorney of record but neither she nor her attorney appeared at the hearing. The 

District Court heard testimony from the petitioner and, at the conclusion of the hearing, 

ordered Schoebel to appear on November 23, 1999, and show cause why judgment should 

not be entered against her. This order to show cause was personally served on Schoebel 

and mailed to her attorney at his address of record.

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¶5 In response, Schoebel filed a motion to vacate the District Court's show cause order, 

claiming that neither she nor her attorney received notice of the Petition or the November 

5 hearing. The parties disputed-and continue to dispute-whether proper notice was sent 

and received but, in any case, Helen agreed to reset the hearing on the original petition for 

December 22, 1999. Helen's attorney sent Schoebel's attorney notice of the hearing by 

certified mail. 

¶6 The matter came before the court as scheduled but, once again, neither Schoebel nor 

her attorney appeared. Schoebel contends that, although her attorney received and signed 

for the certified letter sent by opposing counsel, it did not contain notice of the hearing. 

Opposing counsel disputes this contention and has certified that service of notice was 

made.

¶7 The District Court then issued a second order requiring Schoebel to appear personally 

and show cause why judgment should not be entered against her. This order was issued 

directly by the District Court, and service was completed by regular mail to Schoebel and 

her attorney. On January 28, 2000, the final show cause order came before the District 

Court for a hearing. Schoebel's attorney was present, but Schoebel was not.

¶8 Once it was established that Schoebel was not going to appear, the District Court 

indicated that it was ready to enter judgment against her. Her attorney moved the District 

Court for an opportunity to cross-examine Helen's accounting expert. The District Court 

denied this request, saying that Schoebel had waived her right to cross-examine by failing 

to appear. The District Court then ordered judgment entered in the amount of $36,234.07.

¶9 Schoebel raises the following issues on appeal:

¶10 Issue 1. Was Schoebel denied due process because she did not receive sufficient 

notice of the hearing on the petition and the show cause order? 

¶11 Issue 2. Did the District Court err when it denied Schoebel's motion to cross-examine 

Helen's expert witness at the January 28, 2000, show cause hearing? 

DISCUSSION

¶12 Schoebel claims that the judgment against her is void because it was entered without 

appropriate notice and because she was denied the right to confront witnesses against her.

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I. The Insufficient Notice Claims

¶13 Schoebel's due process claim contains two distinct parts. First, she contends that the 

District Court lacked personal jurisdiction over her because she was never personally 

served with notice of the December 22 hearing on the petition or the January 28 hearing 

on the show cause order. Second, she asserts that the due process clause of the Fourteenth 

Amendment requires personal service of notice if she is required to appear personally. We 

reject both of these arguments.

A. Personal Jurisdiction

¶13 As a general rule, personal jurisdiction may be obtained only through strict 

compliance with Rule 4D, M.R.Civ.P., which governs service of process. Blaskovich v. 

Blaskovich (1991), 249 Mont. 248, 250, 815 P.2d 581, 582. However, where specific 

statutes provide for the method of service, those specifics govern over the general rules set 

out in the Montana Rules of Civil Procedure. Rule 4D(4), M.R.Civ.P.; Taylor, Thon, 

Thompson & Peterson v. Cannaday (1988), 230 Mont. 151, 155, 749 P.2d 63, 65. 

Montana's Uniform Probate Code specifically provides for service by certified, registered, 

or regular mail. Section 72-1-301(1), MCA. Where a person is represented by an attorney, 

service can be made either to the person himself or his attorney. Section 72-1-301(1), 

MCA; Rule 5(b), M.R.Civ.P. 

¶14 The record indicates that Schoebel-either directly or through her attorney-received 

notice of the petition hearing and the show cause hearings by certified or first-class mail. 

Under § 71-1-301, MCA, this is sufficient notice to establish the District Court's personal 

jurisdiction.

B. Due Process

¶16 Schoebel also contends that the absence of personal service deprived her of due 

process. She argues that "a court order or judgment purporting to compel personal action 

by the party against whom it operates has no compelling force unless served personally 

upon the party." In support of this contention, Schoebel cites Hand v. Hand (1957), 131 

Mont. 571, 578, 312 P.2d 990, 994; Application of Garrett (1989), 142 Misc.2d 846, 538 

N.Y.S.2d 919; and Bear Lake County v. Budge (Idaho 1904), 75 P. 614. 

¶17 In Hand, the Court's decision was based on statutory notice provisions and not on any 

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due process analysis. Hand, 131 Mont. at 579, 312 P.2d at 994. Garrett dealt with a 

hearing to compel administration of psychotropic drugs. Service of notice was made to the 

doctor who sought to compel treatment and who then placed the notice in the patient's file 

without showing it to him. Under these special circumstances, the Garrett court held that 

notice was insufficient and personal service to the patient was required. Like the Hand

court, the court in Garrett based its decision on statutory provisions and not the due 

process clause. In Bear Lake County, the Idaho Supreme Court did hold that due process 

requires personal service. However, it is clear from the court's discussion that, by personal 

service, it meant service by mail as opposed to service by publication: not hand delivery to 

the person being noticed. Bear Lake County, 75 P. at 617. In short, none of the cases cited 

by Schoebel support her contention that due process requires personal service.

II. Cross-Examination

¶18 The District Court denied Schoebel's motion to cross-examine witnesses at the final 

show cause hearing, saying that she had waived this right by her failure to appear. On 

appeal, Schoebel contends that the District Court's refusal to allow cross-examination 

violated her Sixth Amendment right to confront witnesses against her. She contends that 

the petition and show cause hearing constitute a charge of "de facto criminal 

embezzlement" and is, therefore, "a criminal proceeding, requiring full constitutional 

protections." 

¶19 First, we disagree with Schoebel's characterization of the proceeding. Helen's petition 

to determine liability of the personal representative is a civil proceeding between private 

parties. Second, the District Court determined that Schoebel waived her right to crossexamine by failing to appear, either personally or through her attorney at the December 22 

hearing on the petition. Schoebel had an opportunity to confront adverse witnesses but 

failed to exercise it. A failure to exercise the right of cross-examination is deemed a 

waiver thereof. See 81 Am.Jur.2d Witness § 805.

¶20 The judgment of the District Court is affirmed.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ KARLA M. GRAY

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/S/ JAMES C. NELSON

/S/ TERRY N. TRIEWEILER

/S/ JIM REGNIER

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