No. 90-333

4E4- IN THE SUPREME COURT OF THE STATE OF MONFANA +.-*,. fJ- 1 1990 V* ' [I

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SHIRLEY SPENCER, Plaintiff and Appellant, --L .- CLERKOF !qi -

### . .,I ~ - SfATt*< ..-vsB. J. UKRA, individually and B. 

### J. UKRA AND ASSOCIATES, BUSINESS MANAGEMENT AND TAX CONSULTANTS, Defendants and Respondents.

APPEAL FROM: District Court of theThirteenth Judicial District, In and for the County of Yellowstone, The Honorable William J. Speare, Judgepresiding.

COUNSEL OF RECORD: For Appellant: George T. Radovich, Billings, Montana For Respondent: ScottG. Gratton, Anderson Brown LawFirm,Billings, Montana

Filed: Submitted: October 19, 1990 ~ecided: January 10, 1991

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### Justice John C. Sheehy, delivered the Opinion of the Court. plaintiff Shirley Spencer appeals from an order of the Thirteenth~udicial District Court, Yellowstone County, dismissing her complaint against defendants B. 

### J. Ukra, individually,and B. 

### J. Ukra and Associates, and Business Management and Tax Consultants, for lack of personal jurisdiction. We reverse. The sole issue raisedby the parties on appeal iswhether the District Court erred ingrantingUkrals motion to dismiss for lack of personal jurisdiction. The District Court had concluded that service of theUkra defendants in California pursuant toMontana's Long Arm Rule, 4B(1), M.R.Civ.P., was deficient because the District Court found that the exercise of jurisdiction over the Ukra defendants inthe caseatbar through serviceof summonsunder the Long Arm Rule would not be reasonable. We have no need todetermine those grounds on appeal however, because the District Court record shows that the Ukra defendants, before they raised the question of personal jurisdiction,had made

a general appearance in the District Court action and subjected themselves to the jurisdiction of the District Court. The complaint and the summons issued out of the Yellowstone County District Court in this case were served upon the defendants in California on January 6, 

### 1989. On February 9, 1989, there having been no appearancemade by the Ukra defendants, on motion of counsel for the plaintiff, the District Court clerk entered the default of the Ukra defendants.OnMarch 7,1989, theUkra defendants, through their counsel, filed a written motion to set aside the default pursuant to Rules 55(c) and 60(b) M.R.Civ.P. The written motion recited that the

summonsand complaintwere served onJanuary 6,1989;thattheUkra defendants retained Montana counsel on March 4, 1989; that plaintiff's counsel had stipulatedto setting asidethedefaultand that the defendants1 motion to set aside the default was made solely upon the grounds that through inadvertence and excusable neglect thedefendantshad failed tomake an appearance within the time allowed by law. The concluding paragraph of the written motion stated: Therefore, Defendants hereby request an order setting aside the default issued by this Court and appear herewith and ask leave of Court allowing Defendants (20) days to file a response to the complaint. (Emphasis added.) On March 20, 1989, counsel for the Ukra defendants filed in the District Court two stipulations between counsel. One stipulationwas to the effect that the default entered against the defendants could be set aside and that the defendantshave 20 days thereafter within which to file "a response to the Complaint in this action." The second stipulation provided that the Ukra defendants would have to and including April 11, 1989, to answer and respond to the plaintiff's combined discovery requests propounded "upon1'them on January 6, 1989. On March 22, 1989, the District Court entered its order setting aside the default, based upon the motion 

### of the Ukra defendants, and pursuant to the stipulation between counsel andgranted the defendants 20 additional days within which to file "a response to the complaint in this action.'' On April 10, 1989, the defendants filed a motion in the District Court to dismiss the action for lack of personal jurisdiction and failure to state a claim pursuant to Rule 12(b),

Thereafter, after a series of briefs, motions for discovery and to compel discovery, and orders for the same, the District Court, on June 8, 1990, dismissed plaintiff's action for lack of jurisdiction over the defendants. It is from this order that plaintiff appeals. The first appearance of the Ukra defendants in this case was a motion to set aside the judgment,based solely upon inadvertence and excusableneglect. No issuewas raised at that timeor in that motion of the lack of personal jurisdiction over the defendants. Motions to vacate a judgment on the ground of mistake, inadvertence, accident, surprise, or excusable neglect, and not on jurisdictional grounds, have been held to constitute a general appearance. 5 Am. Jur. 2d Appearance 5 32, at 505-06. The general rule is stated thusly: Personal jurisdictionmay be acquired over 

### anonresident by his voluntary general appearance. If he makes such an appearance in person or by attorney, he submits himself to the jurisdiction of the court and the court may make a personal adjudication againsthim;he cannot, if unsuccessful, avoid the effect of the judgment or other decision by urging that he was a nonresident and that the court pronouncing judgment against him had no jurisdiction over him. 5Am. Jur. 2d Appearance 5 11, at 488.This rule of general appearance is also established in Montana. InHaggerty v. SherburneMercantile Co. (1947) 120Mont. 386, 395, 186 P.2d 884, 891, this Court said: In Gravelin v. Porier, 77 Mont. 260, 274, 250 P. 823, 826 this Court said: "In fact, any actwhich recognizes the case as in court constitutes a general appearance, and even in the face of a declared contrary intention, a general appearance 'mayarise by implication from the defendant seeking, taking, or agreeing to some step or proceeding in the cause beneficial to himself and detrimental to theplaintiff, other than one contesting only the jurisdictionof the court. (Citing authority.) Thevoluntary general appearanceby the defendant is awaiver of the issuance or service of the summons and consequently of any defects or irregularitiestherein. Haqqerty, 186 P.2d at 890. Haqsertywas decided before the adoption by this Court of our Rules of Civil Proceduremodeled on the federalRules. It is true that ordinarily, adefendantpleadingunderRule 12(b), M.R.Civ.P., may raise the issue of lack of jurisdiction over the person, by motion, which shall be made before pleading further if a further pleading is permitted, or the objection to personal jurisdiction may be combined with other general defenses. However even under

our Rules of Civil Procedure, such objection to lack personal jurisdictionmust be made at the time of the initial appearance in the District Court. The point is illustrated in the Colorado case of Weaver Construction Co. v. District Court for El Paso City, (Colo. 1976), 545 P.2d 1042. In that case, involving two defendants, one had been servedproperly with summonsand complaint,and the otherhad not. They filed a joint motion to set aside a default judgmentunder Colorado's Rule 60(b) on the grounds (1) that there was a meritorious defense, and (2), that the judgment was void for lack of proper service. The Court stated the effect of those grounds: On or about October 15, 1975,defendants Robert and Joy Grinnell, through counsel, filed several documents with the District Court: an entry of special appearance, a motion to quash service of process, and a statement of meritorious defense. The filing of these documentswas an attempttoappear solely forthepurpose of contesting personal jurisdiction. Had thedistrict court foundthat personal jurisdiction existed, then in the alternative theGrinnellswould haveentered ageneral appearancefor the purpose of setting aside the default judgment and receiving a trial on the merits. Their statement of meritorious defense specified several grounds of defense to the merits of the allegations in the complaint. A hearing on the motions was conducted on October 27, 1975. The trial judge set aside the default judgment as to Robert Grinnell because of the lack ofproper service andprocess, and as toJoyGrinnell because of excusable neglect, and the presence of the statement of meritorious defense. Weaver, 545 P.2d at 1044. The Colorado Supreme Court held that as to the person not served, the default judgmentwas vacated,but as to the other, the one moving for excusable neglect, the default was merely vacated. The Court explained as follows: The general appearance subjected Robert Grinnell only to the jurisdiction of the court from the date of the appearance, and is not retroactive as to validate the void judgment. (citing authority.) The subsequent filing of an entry of special appearance as an alternative pleading would have constituted a special appearance, avoiding the continuing jurisdiction of the court,had it been his initial appearance. However, once a person subjects himself to the jurisdiction of the court by entering a general appearance, he cannot withdraw the earlier appearance and escape the jurisdiction of the court. (Emphasis supplied.) Weaver, 545 P.2d at 1046.In the case at bar, the Ukra defendants, having moved the courtto setasidethedefault in their initialappearance,without at the same time preserving the question of lack of personal jurisdiction, consented to the general jurisdiction of the court and their appearance was general. This conclusion is also fortified by a written "Notice of Appearancev1 also filed by defendants on March 7, 1989, in the District Court which stated as follows: PLEASE TAKE NOTICE that the firm of Anderson, Brown, Gerbase, Cebull,Fulton,Harman,andRoss, P.C., 

### by Scott G. Gratton,appears herein forthedefendantsB. J. Ukra, individually, and B. J. Ukra and Associates, Business Managementand TaxConsultantsand requeststhatyoumake service of all pleadings at the firm address. The foregoing notice of appearance also, under our statutes, is an appearance. The pertinent statuteprovides: 25-3-401. Notice ~esuirementsAfter Appearance of Defendant. A defendant appears in an action when he answers, files a motion, or gives the plaintiff written notice of his appearance orwhen anattorneyqivesnotice of appearance for him or has such appearance entered in open court. After appearance, a defendant or his attorney is entitled to notice of all subsequent proceedings in which notice is required to be given.

(Emphasissupplied.) The rule is that a party defendant may not first make the general appearance or file a motion submitting to the general jurisdiction of the court, which motion in effect recognizes the validity of the action taken by the court against him, and then later disputes the personal jurisdiction of the court over the defendant. Collings 

### v. Phillips (Wis. 1972), 194 N.W.2d 677. Because the Ukra defendants made an initial appearance to vacate the default without reserving the question of personaljurisdiction, their appearance was general, and waived all irregularities with respect to the service of process. Accordingly, the decision of the District Court is reversed. n 

# <)&@dm Justice We Concur: 

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Chief Justice