No. 00-645

IN THE SUPREME COURT OF THE STATE OF MONTANA

2002 MT 30N

STATE OF MONTANA,

Plaintiff and Respondent,

v.

FIFTY THOUSAND TWENTY AND NO/100 DOLLARS IN UNITED STATES CURRENCY AND SHARE OF STOCK IN MONIDA ENTERPRISES, A MONTANA CORPORATION, GARY MICHAEL NEWBY AND LISA NEWBY,

Defendants and Appellants.

APPEAL FROM: District Court of the Fifth Judicial District, In and for the County of Beaverhead, The Honorable Frank M. Davis, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Brad L. Belke, A ttorney at Law, Butte, Montana (for Gary Newby)

For Respondent:

Hon. Joseph P. Mazurek, Attorney General; John Paulson, Assistant Attorney General, Helena, Montana

Thomas R. Scott, Beaverhead County Attorney, Dillon, Montana

Submitted on Briefs: February 1, 2001

Decided: February 26, 2002 Filed:

__________________________________________ Clerk Chief Justice Karla M. Gray deli vered the Opinion of the Court.1¶Pursuant to Section I, Paragraph 3(c), Mont ana Supreme Court 1996 Internal Operating Rules, the following decision shall not be cited as precedent. It 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 th e State Reporter Publis hing Company and to West Group in the quarterly table of n oncitable cases issued by this Court. 2¶Gary Newby appeals from the denial by the Fi fth Judicial District Court, Beaverhead County, of his motion to set aside a default judgment in a forfeiture proceeding. We

affirm. 3¶ Newby raises three issues on appeal, the last of which is dispositive: Did Newby's incarceration in the State of Indiana constitute extraordinary circumstances justifying his failure to appear within the statutory time a nd answer the civil forfeiture proceeding in

the State of Montana? 4¶Newby was arrested in Indiana in May of 1997 on drug and weap on charges. Indiana

law enforcement authorities in formed Montana authorities th at Newby was renting two safe deposit boxes at Norwest Bank in D illon, Montana. The Montana authorities

obtained a search warrant to ex amine the contents of the boxe s, in which they found and seized a total of $50,020 in cash a nd a small quantity of marijuana. 5¶The State of Montana filed the underlying fo rfeiture proceeding in the District Court pursuant to §§ 44-12-101 thr ough -206, MCA. Newby wa s served with a petition for forfeiture and summons on July 25 , 1997. He did not file an answer or otherwise appear in the proceedings, and the District Court issued a defau lt judgment of forfeiture on August 20, 1997. 6¶In December of 1999, Newby moved to set aside the Montana defa ult judgment. The State objected, and the District Court deni ed Newby's motion. Newby and Monida Enterprises appealed, and we u ltimately dismissed the appeal without prejudice. 7¶In June of 2000, Newby again moved to se t aside the default ju dgment, asserting he had good cause for failing to appear in the forfeiture proceedings because of his

23 incarceration in Indiana and lack of funds to retain counsel. The State responded that Newby had failed to show prop er grounds to set aside the 3-year-old judgment. The District Court denied the motion, stating "Def endant's three year belated action is totally without merit." Newby appeals.

DISCUSSION 1¶We review a district court's denial of a motion to set aside a default judgment for a slight abuse of discretion. The party seeking to set as ide a default judgment has the burden of proof. In re Marriage of Winckler , 2000 MT 116, ¶ 10, 299 Mont. 428, ¶ 10, 2 P.3d 229, ¶ 10 (citations omitted). 2¶In this case, Newby was personally served with the forfeiture petition and summons on July 25, 1997. He did not file a verified answer within 20 days as required by § 44-12- 202, MCA, and the District Court entered the default judgment in August of 1997. 3¶Moving ahead to facts per tinent to the present case, Ne wby moved to set aside the judgment in June of 2000, citing Rules 55 (c) and 60(b), M.R.Civ. P., and § 44-12-202, MCA. Rule 55(c), M.R.Civ.P., provides " [f]or good cause shown, the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set

it aside in accordan ce with Rule 60(b)." Rule 60(b), M.R.Civ.P., enumerates reasons for which a court may relieve a party from a fina l judgment. On appeal, Newby's argument for setting aside the judgment focuses on his contentions that "extraordinary circumstances" justified his failure to file an answer to the forfeitu re petition within 20 days after it was served on him, as requi red under § 44-12-202, MCA, and that his constitutional rights were violated by the District Court's failure to set aside the default judgment. 4¶ Newby points out he was incarcerated in the State of Indian a when the forfeiture proceeding was filed and, because this was a civil proceeding, he wa s not entitled to have counsel appointed to represent him. He states that, because his assets were seized, he was without funds to hire counsel. Newby faile d, however, to support his request for relief4 with affidavits or other evid ence concerning his inability to retain Montana counsel. Moreover, § 44-12-202, MCA, requires only that the verified an swer to a petition for forfeiture address "the allegations concerning the use of the property described in the [forfeiture] petition . . . ." His incarceration a nd alleged inability to hire a lawyer aside, Newby does not explain why he was unable to meet that relatively simple requirement,

since the needed information was within his own knowledge and could be filed without the necessity of his physical presence. 5¶In addition, Newby's incarceration argument fails to account for nearly a year of the delay in filing his motions. Newby was releas ed from custody in Indiana in February of

1999. He did not file his fi rst motion to set asid e the judgment until De cember of 1999. 6¶The public policy underlying the finality of ju dgments is that there must be some point at which litigation ends and the rights between the parties are forever established. See, e.g., In re Marriage of Hopper , 1999 MT 310, ¶ 29, 297 Mont . 225, ¶ 29, 991 P.2d 960, ¶ 29. Newby did not establish that his in carceration and the seizure of his assets constituted extraordinary circum stances justifying his failure to appear in the Montana civil forfeiture proceeding during his incarcera tion or for nearly a year after he was released from custody. 7¶Finally, Newby asserts the District Court's failure to grant his mo tion to set aside the default judgment violated certain enumerated constitutional rights. He advances no legal analysis or authorities at all pursuant to th is assertion, however, as required by Rule 23(a)(4), M.R.App.P. Conseque ntly, we decline to addre ss the assertion further. 8¶We conclude Newby has failed to meet his burden of establishing even a slight abuse of discretion by the District Court in denying his motion to set aside the default judgment. As a result, we do not reach Newby's first two issues on appeal, both of which attack the underlying forfeiture proceeding on substantive legal grounds. 9¶Affirmed. /S/ KARLA M. GRAY5 We concur:

/S/ JIM REGNIER /S/ TERRY N. TRIEWEILER /S/ JAMES C. NELSON6 Justice Patricia O. Cotter dissents.

¶17 I would conclude that Newby raised su fficient circumstances to establish a better than slight abuse of discreti on by the District Court in refu sing to set aside the default judgment. Significantly, when it obtained the s earch warrant that led to the seizure of the cash in question, the State who lly failed to meet the statut ory requisites of § 46-5-221, MCA, which require that a search warrant ap plication state facts sufficient to support probable cause to believe contraband in co nnection with a particular offense will be found, and describe with particularity what is to be seized. It is virtually undisputable

that the State did not even come close to complying with the statute. ¶18 Because the search warrant underlying the seizure of the money was wholly unsupported by probable cause or the require d specificity, I would conclude that there was a sufficient basis for setting aside the defa ult judgment, and that the District Court erred in not doing so. I would therefore v acate the judgment and remand to allow the defendant to challenge the seizure of the evidence. /S/ PATRICIA COTTER