No. 86-418
INTHE 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,
Plaintiffsand Respondents,-vsDAVID A. HULMAN a/k/a DAVE HULMAN and PRUDENCE HULMAN, husband and wife, and partners d/b/a BRONZE BOOT,
Defendantsand Appellants.

APPEAL FROM: DistrictCourtof the FirstJudicialDistrict, Inand forthe Countyof Lewis & Clark, TheHonorableThomas Honzel, Judgepresiding.
COUNSEL OF RECORD:
For Appellant: John Houtz, Forsyth, Montana
For Respondent: MaryAnne Simpson, LaborStandardsDivision, Helena, Montana

Submittedon Briefs: Dec. 18, 1986

Filed: 

## FEB

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## 1989'

ClerkMr. 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, theHulmans. Killham's claimwas for $500, while Vetch requested $2,625. Hulmanswere servedApril 10, 1986, with a notice of opportunity for hearing which explained the wage claims, the applicable statutes and their right to file awritten request forahearing. 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 ahearing. On May 7, 1986,an order of defaultwas executedby 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 reviewwas 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 judgmentwas 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 CountyAttorney's office recovered bad check restitution fromHulmans 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 setaside the default judgment? A trial judge's determination that a default judgment should not be set asidemay be overturned upon a showing of "slight abuse" of discretion. Lordsv. Newman (Mont. 1984)

## , 688P.2d 290, 41 St.Rep. 1793. The trial judge did not abuse hisdiscretion, 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 thanwhat 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 independentlyandwithout specific direction of the commissionerof 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 tomonies owed Killham and Vetch should have been resolved at a hearing before the CommissionerofLabor. Hulmanswere 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 thewage 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 meritsmay 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 settingaside 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),189Mont. 356, 364-366, 616P.2d 313, 318-319. Hulmans' contention that the judgmenthasbeen 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 bystatute. Section 39-3-206, 

### MCA. The initial judgment entered against Hulmans in the amount of $6,250was 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 amountdue and owing, $4500.20. The order is affirmed in all other aspects.

We concur:

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

Justic s 

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