Preview:

No.

96-125

IN THE SUPREME COURT OF THE STATE OF MONTANA 1996

FIRST CONTINENTAL CORPORATION, a Montana Corporation, Plaintiff and Respondent,

JOHN B. PARKER, KOLEEN FELDMAN PARKER, JULIE L. PARKER and JAMES 0. PARKER, Defendants and Appellants.

APPEAL FROM:

District Court of the Tenth Judicial District, In and for the County of Ferqus, The Honorable John Christensen, Judge presiding

COUNSEL OF RECORD: For Appellants: Allen Beck, Attorney at Law, Billings, Montana John B. Parker, Pro Se, Billings, Montana For Respondent: Norman L. Newhall; Linnell, Newhall, Martin Schulke, Great Falls, Montana
&

Submitted on Briefs: November 21, 1996 Decided: Filed: December 31, 1996

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

Pursuant to Section I, Paragraph 3 (c), Montana Supreme Court 1995 Internal Operating Rules, the following decision shall not be cited as precedent and shall be published by its filing as a public document with the Clerk of the Supreme Court and by a report of its result to State Reporter Publishing Company and West Publishing Company. Appellant John B. Parker, appearing pro se, appeals the Court, Fergus February 1, 1996 Order of the Tenth Judicial ~istrict County, denying his motion for change of venue, Julie L . Parker appeals the February 1, 1996 Order granting default judgment against her. Appellants John B. Parker, and James
0.

Parker appeal

the February 1, 1996 Order granting First Continental Corporation's (FCC) motion for summary judgment. following issues on appeal:
1.

We a f f inn.

We consider the

Did the District Court err when it denied John B.

Parker's motion for change of venue?
2.

Did the District Court err when it granted default

judgment against Julie L. Parker?
3.

Did the District Court err when it granted summary

judgment against John 3. Parker and James 0 . Parker?
4.

Is it proper for this Court to reopen the previous

litigation in this matter on the basis of extrinsic fraud?

Factual and Procedural Historv This appeal arises from a deficiency judgment in the amount of $153,632 ordered against the appellants as general partners in Fergus Farming Partnership (FFP). FCC won a judgment against FFP which was affirmed by this Court on July 8, 1995. The facts

leading up to that judgment will only be repeated as necessary to the resolution of the present dispute. FFP was formed as a general partnership in 1987 to farm real property located in Fergus County, Montana. The property was being purchased by FCC pursuant to a Contract For Deed with Fox Grain and Cattle Co. (Fox). FFP took possession of the property as lessee and hired Top Gun, Inc., to perform custom farming services. FCC defaulted on the Contract For Deed and Fox instituted default proceedings and eventually litigation against FCC, FFP, and other farming partnerships in the Tenth Judicial District Court, Fergus County, Montana. The original complaint was filed on July 20,

1988. On January 16, 1990, FCC filed a cross-complaint against FFP based on an account receivable owed by FFP to Top Gun, Inc., which Top Gun assigned to FCC. The case was tried before the court on

March 21, 1994 and the court entered its Findings of Fact and Conclusions of Law on June 21, 1994. After a hearing regarding

attorney's fees, the court entered judgment in favor of FCC and against FFP on October 14, 1994. FFP filed post-trial motions which were denied by the District Court. Thereafter, FFP timely filed an appeal to this Court which

affirmed the District Court.

FFP's petition for rehearing was

denied and a Remittitur issued July 27, 1995. In the meantime, while the appeal to this Court was pending, FCC issued a Writ of Execution on FFP funds held in trust by the Fergus County Clerk of Court's office. The Writ was partially

satisfied by payment of $69,190. FCC issued additional Writs of Execution for the balance of the judgment which were served in Fergus and Yellowstone Counties. They were returned unsatisfied. Thereafter, FCC instituted the present action in the Tenth Judicial District Court filing a complaint on August 17, 1995. Appellant Julie Parker was originally served on August 27, 1995 and re-served on October 3, 1995. Appellant John Parker was served on October 1, 1995 and Appellant James Parker was served on October 18, 1995. All three appellants were served with an Amended the Complaint and the Plaintiff's First

Summons, a copy of

Discovery Requests (including requests for admissions). the appellants responded to the discovery requests.

None of

On October 19, 1995, John Parker, appearing pro se, filed a Motion to Dismiss without a brief. On November 6, 1995 John Parker filed his answer and a Motion for Change of Venue. On November 24, 1995, the Fergus County Clerk of Court entered the Defaults of Julie Parker and James Parker for failure to appear. On the same date FCC moved for summary judgment against

John Parker and for entry of a Default Judgment against Julie Parker and James Parker pursuant to Rule 56, M.R.Civ.P.

On January 12, 1996, James Parker and Julie Parker through counsel, moved to set aside the default by the Clerk of Court. On

the same date, James Parker and Julie Parker, through counsel, and John Parker, appearing pro se, filed an additional Answer, Third Party Complaint and Counterclaim against FCC and against John J. Greytak individually. Hearing on all motions was conducted on January 16, 1996. The court issued its Order on February 1, 1996, and its Memorandum on February 2, 1996, granting summary judgment to FCC and judgment against John Parker, James Parker, and Julie Parker. Standard of Review Our standard of review of a district court's denial of a motion to change venue is a legal conclusion which we review to determine whether the district court correctly applied the law. Carter v. Nye (1994), 266 Mont. 226, 228, 879 P.2d 729, 730; (1994), 268 Mont. 477, 482, 886 P.2d 971,

Barthule v. K a m a n

974. Our standard of review in appeals from a district court's denial of a motion to set aside an entry of default is "that no great abuse of discretion need be shown to warrant reversal." Lords v. Newman (1984), 212 Mont. 359, 364, 688 P.2d 290, 293. Our standard of review in appeals from summary judgment rulings is de novo. Motaire v. Northern Montana Joint Refuse

Disposal Dist. (1995), 274 Mont. 239, 242, 907 P.2d 154, 156; Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785. When we review a district court's grant of summary judgment, we apply the same evaluation as the district court based on Rule 56,

M.R.Civ.P.

Bruner v. Yellowstone County (1995), 272 Mont. 261,

264, 900 P.2d 901, 903. In Bruner, we set forth our inquiry: The movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Having determined that genuine issues of fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. We review the legal determinations made by a district court as to whether the court erred. Bruner, 900 P.2d at 903 (citations omitted) Issues
1. Did the District Court err when it denied John Parker's motion for change of venue?

John Parker and James Parker filed separate motions for change of venue. Both motions were denied. Only John Parker appeals from the denial. On October 19, 1995, John Parker, appearing pro se,

filed a motion to dismiss. On November 6, 1995, John Parker filed his answer and a motion for change of venue. John Parker alleged

that venue was proper in Yellowstone County, as that was the county of his residence. He further alleged that, even if the choice of

venue were to be determined based upon the underlying contract, Yellowstone County, rather than Fergus County, was proper because Yellowstone County was FFP's principal place of business. Both of these allegations are incorrect. FCC objected to the motion on the basis that John Parker did not move for change of venue in his first pleading pursuant to Rule 12 (b), M.R.Civ.P.
A defendant waives the right to change venue

when he fails to raise the issue at the time of his first appearance. Rule 12 (b), M.R.Civ.P. Hoyt v. Hoyt (l985), 215 Mont. ; 6

449, 456, 698 P.2d 418, 422.

An "appearance is the first act of

the defendant in court." Johnson v. Clark (19571, 131 Mont. 454, 459, 311 P.2d 772, 775. John Parker waived his right to change

venue by failing to raise the issue when he first appeared and moved the court to dismiss the action against him. Although the District Court could have denied John Parker's motion for change of venue on this procedural ground alone it chose to address the merits of the venue issue and denied the motion on that basis. The District Court found that Fergus County was the proper place for venue because, although the service contract with Top Gun, Inc., was executed in Yellowstone County, Montana, it was to be performed in Fergus County, Montana. The general rule governing venue of all civil actions is that the action shall be tried in the county in which the defendant resides. Section 25-2-118, MCA. However, 25-2-118, MCA,

provides that the general rule applies only if venue is not otherwise provided for by statute. Section 25-2-121,MCA, governs venue in contract actions:
(2) [Ilf . . . a contract belongs to one of the following classes, the proper county for such a contract . . . is . . . (b) contracts of employment or for the performance of services: the county where the labor or services are to be performed . . . .

The judgment against FFP arose out of an alleged breach of payment for services rendered by Top Gun, Inc. in Fergus County, Montana. FCC partially satisfied the judgment out of partnership

assets in Fergus County. Thereafter FCC commenced the above-

entitled action under

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