No. 86-418 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

STATE OF MONTANA, DEPARTMENT OF LABOR 

and INDUSTRY, LABOR STANDARDS DIVISION, 

ex rel., LOUIS P. VETCH and DAR-LA KILLHAM, 

Plaintiffs and Respondents, 

-vsDAVID A. HULMAN a/k/a DAVE HULMAN and 

PRUDENCE HULMAN, husband and wife, and 

partners d/b/a BRONZE BOOT, 

Defendants and Appellants. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Thomas Honzel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John Houtz, Forsyth, Montana 

For Respondent: 

Mary Anne Simpson, Labor Standards Division, Helena, 

Montana 

Submitted on Briefs: Dec. 18, 1986 

Filed: FEB I 3 1989' 

Clerk 
Mr. Justice Frank P. Morrison, Jr. delivered the Opinion of 

the Court. 

This is an appeal from the First Judicial District 

Court's denial of a motion to set aside a default judgment 

entered against Dave and Prudence Hulman, d/b/a Bronze Boot 

(Hulmans) . Dar-La Killham and Louis Vetch filed wage claims with 

Montana's Commissioner of Labor for wages owed them by their 

former employers, the Hulmans. Killham's claim was for $500, 

while Vetch requested $2,625. Hulmans were served April 10, 

1986, with a notice of opportunity for hearing which 

explained the wage claims, the applicable statutes and their 

right to file a written request for a hearing. Copies of the 

wage claims were attached. Hulmans allege that they 

contacted the Department of Labor and Industry by telephone 

regarding the wage claims. Hulmans failed to file a written 

request for a hearing. 

On May 7, 1986, an order of default was executed by the 

Department of Labor and Industry. The order set forth the 

amount of the claims owed, $3,125, and the penalty assessed 

under $ 39-3-206, MCA, $3,125. The order also explained 

Hulmans' right to judicial review of the proceedings. No 

review was requested. On June 20, 1986, upon the application 

of the Department, a final order of judgment was entered 

finding the Hulmans' indebted to the Commissioner of the 

Department of Labor in the amount of $6,250, in unpaid wages 

and penalties. Notice of entry of judgment was filed and 

served on the Hulmans July 2, 1986. On July 18, 1986, the 

Hulmans filed a motion to set aside the default. It was 

denied August 27, 1986. 

Meanwhile, the Custer County Attorney's office recovered 

bad check restitution from Hulmans as follows: 
July 9, 1986 $210.54 to Killham 

July 11, 1986 $708.26 to Vetch 

Also, Vetch agreed to accept $831 in equipment from Hulmans 

in lieu of part of the wages owed him. The Department 

acknowledged these payments and credited the $6,250 judgment 

accordingly. 

Hulmans present one issue for our review. Did the 

District Court abuse its discretion by denying their motion 

to set aside the default judgment? 

A trial judge's determination that a default judgment 

should not be set aside may be overturned upon a showing of 

"slight abuse" of discretion. Lords v. Newman (Mont. 1984) , 

688 P.2d 290, 41 St.Rep. 1793. The trial judge did not abuse 

his discretion, even slightly, in this case. 

Montana's Rules of Civil Procedure provide for the 

setting aside of default judgments under certain 

circumstances. "Good cause1' to set aside the default 

judgment must be shown. Rule 55(c), M.R.Civ.P. ~ulmans 

contend that good cause to set aside the default judgment 

exists in this instance for two reasons: first, the 

pursuance by the State of both administrative and criminal 

proceedings against Hulmans for the same offense; and 

second, Killham's wage claim for an amount greater than what 

she is owed. 

The State is permitted to proceed with both an 

administrative process and a criminal prosecution against 

Hulmans. Section 39-3-215, MCA, states: 

Authority of county attorney. Nothing . . . contained [in the Wages and Wage Protection Act] 

shall be construed to limit the authority of the 

county attorney of any county of the state to 

prosecute actions, both civil and criminal, for 

such violations of this part as may come to his 

knowledge or to enforce the provisions hereof 

independently and without specific direction of the 

commissioner of labor. 
Further, the State has not obtained double recovery from 

Hulmans . The sums obtained as a result of the criminal 

prosecution have been credited against the $6,250 judgment. 

Any factual dispute with respect to monies owed Killham 

and Vetch should have been resolved at a hearing before the 

Commissioner of Labor. Hulmans were given adequate notice of 

the claims against them and of their right to a hearing on 

those claims. By failing to request a hearing, Hulmans 

waived their right to contest the amount of the wage claims. 

Rule 55 (c) , M.R.Civ.P. further provides that a default 

judgment may be set aside for the same reasons a judgment 

following trial on the merits may be vacated. Kootenai Corp. 

v. Dayton (1979), 184 Mont. 19, 26, 601 P.2d 47, 50. Rule 

60(b), M.R.Civ.P., sets forth the reasons for setting aside a 

final judgment, three of which are relied on by Hulmans: 

fraud; satisfaction of judgment; and "any other reason 

justifying relief from the operation of the judgment." Rule 

60 (b) (31, (5) and (61, MCA. 

The basis for Hulmans' allegation of fraud is the 

State's pursuance of both administrative and criminal 

proceedings against them. We have already addressed this 

contention. The State properly pursued both avenues of 

recovery. The State has not attempted to achieve double 

recovery from the Hulmans. The State has not attempted to 

intentionally deceive the Hulmans, nor to deprive them of 

their day in court. There is no fraud warranting the 

setting aside of the default judgment. See Miller v. Miller 

(1980), 189 Mont. 356, 364-366, 616 P.2d 313, 318-319. 

Hulmans' contention that the judgment has been satisfied 

is based on allegations of error in the determination of the 

amounts due and owing. Hulmans waived their opportunity to 

contest the amounts when they chose not to request an 

administrative hearing. The $3,125 penalty is mandated by 
statute. Section 39-3-206, MCA. The initial judgment 

entered against Hulmans in the amount of $6,250 was proper. 

The lower court, relying on the Department's brief, found 

that $1739.80 of the judgment had been satisfied. The actual 

amount to be credited is $1749.80 ($210.54 + $708.26 + 

$831.00). We therefore amend the final order to reflect the 

true amount due and owing, $4500.20. 

The order is affirmed in all other aspects. 

We concur: 

/ 

-,.-?(/T&A hief Justice 

Justic s 7'