HomeRiver v. Anders Business

2025 MT 154N

Opinion

07/15/2025

DA 24-0531 Case Number: DA 24-0531

IN THE SUPREME COURT OF THE STATE OF MONTANA

2025 MT 154N

HOMERIVER GROUP,

Plaintiff and Appellee,

v.

ANDERS BUSINESS SOLUTIONS, LLC,

Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV-24-457 Honorable Robert L. Deschamps, III, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Charles H. Carpenter, Carpenter Law Firm, PLC, Missoula, Montana

For Appellee:

Joseph D. Houston, Jones & Houston, PLLC, Missoula, Montana

Submitted on Briefs: April 30, 2025

Decided: July 15, 2025

Filed: Vir- 6#---df __________________________________________ Clerk Justice Beth Baker delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, we decide this case by memorandum opinion. It shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2 Anders Business Solutions, LLC (ABS) appeals the Fourth Judicial District Court’s

order affirming the Missoula County Justice Court’s entry of default and order for

possession of property and its order striking documents from the record. We affirm.

¶3 HomeRiver Group, a property management company, filed a verified complaint for

unlawful detainer against ABS in the Justice Court on April 15, 2024, and served ABS the

following day. The complaint alleged in part that ABS was subject to a month-to-month

lease; it failed to pay rent; HomeRiver gave ABS a written 30-day notice of termination

and non-renewal of the lease; ABS failed to vacate the premises; and HomeRiver was

entitled to immediate possession. In accordance with § 70-27-114, MCA, the summons

served with the verified complaint notified ABS that it was required to file an answer within

ten days and that failure to appear or answer would result in default judgment. An

individual named Kris Hawkins (who is not a licensed attorney) attempted to file motions

on behalf of ABS on April 18, 2024, arguing that the court lacked personal and subject

matter jurisdiction.

2 ¶4 The next day, the court ordered Hawkins to document her authority to represent

ABS because she is not an active attorney authorized to practice law. It reasoned that

although an entity generally may not appear in court except through a licensed attorney, a

statutory exception allows a member of an LLC with a majority interest to represent the

LLC in justice court. The court ordered Hawkins to provide documentation that “they (1)

are a member of that LLC with a majority interest, and (2) that the articles of organization

do not prohibit them from representing the LLC in Court.” It further ordered that Hawkins

either provide this documentation or withdraw the motion by 5 p.m. on Friday, April 26,

or she would be held in contempt.

¶5 On April 23, 2024, Hawkins filed a one-page declaration and attached two exhibits.

The declaration stated that Anderson Trust is a member with a majority interest in ABS;

that Kris Hawkins and Terry Wallace are the co-trustees of Anderson Trust; and that the

articles of organization of ABS do not prohibit a majority interest member in the LLC from

representing the LLC in justice court. The first exhibit was the 2024 Annual Report for

ABS from the Secretary of State website, which showed that ABS was a manager-managed

entity; listed a Tulsa, Oklahoma address for its manager Anderson Trust as the mailing

address of its principal office; and identified a Missoula, Montana address as the physical

address of its principal office. The second exhibit was the 2015 Articles of Organization

for ABS, which listed the LLC as a manager-managed LLC with Jim Davenport as the

manager. Hawkins then proceeded to file an answer and demand for jury trial, listing

numerous affirmative defenses.

3 ¶6 On April 30, 2024, the court concluded that the evidence Hawkins presented failed

to demonstrate her authority to represent ABS. It explained that the 2024 Annual Report

showed Anderson Trust only as the manager of a manager-managed LLC, and the original

Articles of Organization for ABS listed Jim Davenport as the manager of the LLC. Because

the Anderson Trust “appears to be an Oklahoma entity, lacking in corporal form, and thus

not able to appear as an attorney[,]” it found that Hawkins’s evidence did not demonstrate

that she has a majority interest in ABS. It thus ordered all documents filed by Hawkins

stricken from the record, gave ABS until May 10, 2024, to file an answer or other

appearance through an attorney or a person authorized to do so, and warned that failure to

do so would subject ABS to entry of default. On May 8, 2024, the court (in a separate

order not at issue on appeal) reiterated that ABS had not filed an answer or any other

response and would be subject to default if not addressed by the end of the day on May 10,

2024.

¶7 On May 10, 2024, Hawkins filed a declaration for disqualification against the

Justice of the Peace, alleging in part personal bias, prejudice, and error in his striking the

filings by Hawkins. The court, reiterating that Hawkins was not a party to the action, set

aside her request as void.

¶8 On May 13, 2024, HomeRiver filed a request for entry of default and order of

possession, which the Justice Court granted the next day. The court also signed a writ of

assistance for HomeRiver’s possession of the premises. On May 17, 2024, Hawkins filed

a petition for writ of supervisory control with this Court, requesting that we vacate the

4 April 30 Order that found her without authority to represent ABS. We denied the petition.

Anderson Tr. v. Just. Ct. of Rec., Missoula Cnty., No. OP 24-0310, 417 Mont. 554,

550 P.3d 787 (May 29, 2024).

¶9 On May 20, 2024, counsel for ABS entered a notice of appearance, filed an appeal

to the District Court, and moved the Justice Court to stay the proceedings while the matter

was pending on appeal. ABS did not file an undertaking with the motion to stay. The

Missoula County Sheriff executed the writ of assistance on May 22, 2024, putting

HomeRiver in possession of the premises. The same day, the Justice Court ruled on ABS’s

motion to stay. Noting that ABS did not request the court to set aside default, the Justice

Court observed that the Montana Uniform Municipal Court Rules of Appeal to District

Court applied because it is a Justice Court of Record. See § 3-10-115(4), MCA. Under

these rules, an undertaking was required before the order for possession could be stayed.

U.M.C.R.App. 6(a)(3). The court set the undertaking at $8,800 and stated that upon

posting of the undertaking, it would issue a stay on the matter pursuant to

U.M.C.R.App. 7(a)(2). The court noted, however, that it had been divested of jurisdiction.1

On May 23, 2024, HomeRiver notified the court that the sheriff had executed the writ of

assistance the previous day. ABS asserted in District Court filings that it posted the $8,800

1 The court stated that it “would have expected . . . that counsel would have asked to set aside the recently entered default and accompanying order of eviction[,]” explaining that there “are probably arguments to be made regarding good cause. The law is remarkably favorable to those seeking to set aside defaults. Alas, this Court would no longer have jurisdiction to entertain such a motion.”

5 undertaking on May 23, 2024. On appeal, the District Court affirmed the Justice Court’s

order striking filings, entry of default, and order of possession.

¶10 “On appeal from a justice court of record, district courts function as intermediate

appellate courts with review confined to the record and questions of law.” State v.

Thibeault, 2021 MT 162, ¶ 6, 404 Mont. 476, 490 P.3d 105 (citing §§ 3-5-303, 3-10-115(1),

MCA). The district court reviews factual findings for clear error, conclusions of law for

correctness, and discretionary rulings for abuse of discretion. Thibeault, ¶ 6. Applying the

same standards of review, we examine the record independently of the district court’s

decision and review the case as if the appeal originally had been filed in this Court. Stanley

v. Lemire, 2006 MT 304, ¶ 26, 334 Mont. 489, 148 P.3d 643. “Our ultimate determination

is whether the district court, in its review of the trial court’s decision, reached the correct

conclusions under the appropriate standards of review.” Stanley, ¶ 26.

¶11 A threshold issue in this appeal is whether the Justice Court should have allowed

Hawkins to appear on behalf of ABS.2 An LLC is a legally distinct entity that may be sued

and bring suit in its own name, but an “LLC generally may not appear in court pro se

through one of its members.” Sagorin v. Sunrise Heating & Cooling, LLC, 2022 MT 58,

¶ 11, 408 Mont. 119, 506 P.3d 1028. “Non-lawyers who attempt to represent corporations

2 Our order denying supervisory control does not, as HomeRiver contends, bar ABS’s claim on appeal under collateral estoppel principles. It was not a “final judgment on the merits” as required for issue preclusion. Baltrusch v. Baltrusch, 2006 MT 51, ¶ 18, 331 Mont. 281, 130 P.3d 1267. Although we declined to exercise supervisory control, we did not issue any final judgment as contemplated by the doctrine of collateral estoppel to preclude ABS raising this issue now. Our acceptance of and ruling on Hawkins’s pro se supervisory control petition also is not dispositive of her authority to represent ABS in the Justice Court. 6 or partnerships in court are guilty of contempt of court.” Sagorin, ¶ 11. “The Legislature

has carved out a specific exception to this general rule: a member with a majority interest

in an LLC has the authority to represent the LLC in a justice court or small claims court.”

Sagorin, ¶ 11 (citing §§ 35-8-301(5), 25-35-505(3)(e), 25-31-601(3), MCA).3 “Except as

provided in 35-8-301, a member with a majority interest in a limited liability company as

defined in 35-8-102 may act as attorney for the limited liability company.”

Section 25-31-601(3), MCA. “Unless the articles of organization state otherwise, a

member with a majority interest in the limited liability company may represent the limited

liability company” in justice court and small claims court pursuant to the relevant statutory

provisions. Section 35-8-301(5), MCA.

¶12 On appeal, ABS continues to assert that Anderson Trust is the majority member of

ABS and that Hawkins may represent ABS as the trustee of Anderson Trust. Citing

§ 25-31-601(2), MCA, it contends that “any person . . . may act as an attorney for a party”

in justice court and that Hawkins as trustee could litigate pro se for the LLC or the trust.

Because “the party” is an LLC, however, § 25-31-601(3), MCA, clearly requires that only

a member with a majority interest may represent the LLC in justice court. The legal

arguments that Hawkins advances (including assertions that a trustee may represent a trust

in court pro se) overlook the central obstacle in this case—she never provided the Justice

3 Sagorin is not, as ABS asserts, “completely irrelevant[.]” Although it dealt with a non-attorney attempting to represent an LLC in district court, it accurately stated the general rule and narrow exception at issue here. Sagorin, ¶¶ 3-4, 11. 7 Court with the requisite documentation to show that she was a majority member of ABS

and thus allowed to appear as a non-attorney in justice court.

¶13 First, the exhibits she provided do not show that Anderson Trust is a member with

a majority interest in ABS. The articles of organization do not mention Anderson Trust.

The exhibit she attached—ABS’s 2024 Annual Report—shows only that Anderson Trust

is the manager of the LLC. Section 35-8-102(19), (21), MCA, provides different

definitions for managers and members in an LLC. A manager is not the same thing as a

member. Indeed, a manager is not necessarily even a member of an LLC. Compare

§ 35-8-102(19), MCA (defining a “manager” as a “person who, whether or not a member

of a manager-managed company, is vested with authority under 35-8-301”) with

§ 35-8-102(21), MCA (defining “member” as a “person who has been admitted to

membership” in an LLC). The 2024 Annual Report provides no information about the

members of ABS. Although a manager is defined as someone with the authority vested in

§ 35-8-301, MCA, that statute—which governs agency power of members and managers—

specifically allows only a member with a majority interest in the LLC to represent the LLC

in justice court or small claims court. Section 35-8-301(5), MCA.

¶14 Moreso, even if Anderson Trust was a majority member, Hawkins provided the

Justice Court with no documentation to demonstrate that she is a trustee of Anderson Trust

with the specific power to take the actions enumerated in § 72-38-816(6), (24), MCA.

See § 72-38-816, MCA, Annotations, Official Comments (2023) (“This section enumerates

specific powers commonly included in trust instruments and in trustee powers legislation.

8 All the powers listed are subject to alteration in the terms of the trust.”) (emphasis added).

The evidence that she presented, other than her own declaration, told the court nothing of

the Anderson Trust or of the specific powers granted to its trustees. We need not address

today whether an individual, non-attorney trustee may appear in justice court on behalf of

a trust that is a majority member in an LLC. The evidence presented by Hawkins fails to

provide the requisite support to even reach this legal argument. The Justice Court did not

err when it ordered Hawkins’s filings stricken from the record and did not permit her to

represent the LLC, absent evidence showing otherwise.

¶15 ABS raises several arguments that the Justice Court erred in entering default. On

an action for unlawful detainer, if “the defendant does not appear and defend within 10

days of service, the court shall enter the defendant’s default and enter judgment in favor of

the plaintiff as requested in the complaint.” Section 70-27-117, MCA (emphasis added).

M.J.C.C.R.Civ.P. 22A, applicable here, allows a judge to

relieve a party from any judgment or other order taken against the party by mistake, inadvertence, surprise, or excusable neglect, but the application for relief must be made within 30 days after entry of the judgment and upon an affidavit showing good cause for it. The party applying for relief shall serve the application and give notice of hearing to all other parties. The court shall set a hearing within 10 days after receipt of the application.

See CBM Collections, Inc. v. Ferreira, 2005 MT 170, ¶ 10, 327 Mont. 479, 115 P.3d 211

(reasoning that justice courts follow the Montana Justice and City Court Rules of Civil

Procedure, not the Montana Rules of Civil Procedure). “There is no appeal from a

judgment by default rendered in a municipal court except on questions of law which appear

on the face of the papers or proceedings and except in cases when the municipal court has

9 abused its discretion in setting aside or refusing to set aside a default or judgment.”

U.M.C.R.App. 4(f).

¶16 ABS contends that its actions demonstrate a clear intent to defend the lawsuit, and

this should prevent the entry of default even if not fully compliant with the procedural

rules. ABS cites no case authority for this proposition. This Court will not conduct legal

research on behalf of a party. State v. Cybulski, 2009 MT 70, ¶ 13, 349 Mont. 429,

204 P.3d 7. ABS further argues that the court gave it only five days to retain an attorney,

“entered default against [ABS] as a sanction for [its] inability to retain counsel in five

days[,]” and violated due process of law.

¶17 ABS mischaracterizes the record. On April 19, the court gave Hawkins until

April 26 to show her authority to represent ABS. Its April 30 order ruled that Hawkins had

not shown such authority and warned ABS that it had until May 10 to file an answer or

appearance through an authorized attorney. The court repeated this warning on May 8 in

response to Hawkins’s separate filings. Nothing supports the assertion that the Justice

Court’s entry of default was a “sanction” for inability to retain counsel. Rather, it gave

Hawkins extra time to show her authority to represent ABS, and when she failed to show

such authority, followed the mandatory, statutory procedure for entry of default.

Section 70-27-117, MCA. In total, the time between service and the entry of default was

April 16 to May 14. ABS was given adequate notice that failure to answer or appear would

result in default; the court gave Hawkins time for the opportunity to be heard regarding her

authority to represent ABS; and it subsequently gave ABS the statutorily required time to

10 answer before entering default. In re Marriage of Fishbaugh, 2002 MT 175, ¶ 15,

310 Mont. 519, 52 P.3d 395 (“The essential elements of due process are notice and the

opportunity to be heard.”).

¶18 ABS argues that—under U.M.C.R.App. 7(a)(3)—it ultimately posted the

undertaking, the court was required to stay the proceedings, and the execution officer was

required to deliver the property to ABS despite the sheriff already having executed the writ

of assistance. HomeRiver counters that this rule does not apply to executions on real

property. We need not address today the impact of a party posting an undertaking after the

execution on a writ of assistance for real property. Once ABS retained counsel, it could

have moved to set aside the default or for relief under M.J.C.C.R.Civ.P. 22A but did not

do so. Instead, it moved the court to “stay proceedings while the matter is pending on

appeal.” The merits of the appeal now have been addressed—the Justice Court did not err

in its order striking Hawkins’s filings or by entering default and directing possession of the

property. “In deciding whether a case is moot, this Court determines whether it can fashion

effective relief.” Kennedy v. Dawson, 1999 MT 265, ¶ 35, 296 Mont. 430, 989 P.2d 390.

The delayed filing of an undertaking may not always render an issue moot, see Guethlein

v. Family Inn, 2014 MT 121, ¶ 21 n.2, 375 Mont. 100, 324 P.3d 1194; rather, the issue of

the stay is moot on these facts. Because we affirm the Justice Court’s orders and entry of

default, there is no effective relief that we could grant by ordering a stay.

¶19 ABS argues in its reply brief that there was no judgment (only interim orders and

entry of default), and thus no monetary judgment upon which the LLC could have

11 calculated and paid an undertaking. U.M.C.R.App. 6(a)(3) states in part that except upon

an indigency determination, “when the judgment appealed from directs the delivery of

possession of real property, the execution of the same cannot be stayed unless a written

undertaking be executed on the part of the appellant, with two or more sureties[.]” The

Justice Court’s entry of default was a final order insofar as it directed the delivery of

possession. ABS has failed to convince us that the Justice Court did not properly follow

the procedure under U.M.C.R.App. 6(a)(3).4

¶20 Because ABS never moved for relief or to set aside the default in the Justice Court,

we do not address its arguments on appeal regarding good cause to set aside the default

now. See State v. Longfellow, 2008 MT 343, ¶ 19, 346 Mont. 286, 194 P.3d 694 (reasoning

that we generally do not address issues raised for the first time on appeal); see also

¶21 ABS additionally asserts that HomeRiver is not the real party in interest but only a

fictitious trade name and that it lacks standing to assert a claim against ABS.

M.J.C.C.R.Civ.P. 10B states that upon “motion of the opposing party or upon the court’s

own motion, the court must require an amendment of the pleadings to name the real party

in interest. If the real party in interest is not named within 5 days, the action will be

dismissed without prejudice.” A motion by ABS is not properly in the record raising this

issue, nor is any order by the court requiring as much. Because the rules would allow five

4 We also note that § 70-27-202(1), MCA, requires that, absent a stipulation by the parties, actions filed in justice courts under Title 70, chapter 27, MCA, must be tried within 10 days from the appearance or answer date stated in the summons unless the defendant seeking a continuance gives an undertaking. 12 days for HomeRiver to amend the pleadings, ABS has not demonstrated that the case

should be dismissed on appeal.

¶22 Finding these issues dispositive, we need not address the remaining arguments that

ABS raises on appeal. ABS disputes, in part, the lease at issue, whether the parties are

properly named, and jurisdiction by the Justice Court. These substantive arguments were

contained within filings that we have held were appropriately stricken from the record and

are not properly before this Court. See § 3-10-115(1), MCA (An appeal to district court

from a justice court of record is confined to review of the record and questions of law.).

¶23 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. This appeal presents

no constitutional issues, no issues of first impression, and does not establish new precedent

or modify existing precedent. We affirm the Justice Court orders striking Hawkins’s filings

and entering default against ABS.

/S/ BETH BAKER

We Concur:

/S/ KATHERINE M BIDEGARAY /S/ LAURIE McKINNON /S/ INGRID GUSTAFSON /S/ JIM RICE