Juris v. Cantrell

2020 MT 220N

Montana Supreme Court·Decided September 1, 2020·No. DA 20-0121·Unpublished

Opinion

09/01/2020

DA 20-0121 Case Number: DA 20-0121

IN THE SUPREME COURT OF THE STATE OF MONTANA 2020 MT 220N

DR. RUTH A. JURIS,

Plaintiff and Appellant,

LANA E. CANTRELL d/b/a LANA CANTRELL LAW OFFICE,

Defendant and Appellee.

APPEAL FROM: District Court of the Twentieth Judicial District, In and For the County of Sanders, Cause No. DV-17-70 Honorable Deborah Kim Christopher, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Michael Hawkins O’Brien, St. Peter Law Office, P.C., Missoula, Montana

For Appellee:

Lana E. Cantrell, Lana Cantrell Law Office, Mattituck, New York

Submitted on Briefs: July 29, 2020

Decided: September 1, 2020

Filed:

r--6ta•--df __________________________________________ Clerk Justice Laurie McKinnon delivered the Opinion of the Court.

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

Rules, this case is decided by memorandum opinion and 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 Dr. Ruth A. Juris (Juris) appeals the Order Granting Defendant’s Motion to Dismiss

issued by the Twentieth Judicial District Court, Sanders County, on January 29, 2020. We

reverse.

¶3 On July 20, 2017, Juris filed a complaint in District Court against her former

attorney, Lana E. Cantrell (Cantrell), asserting numerous claims arising from Cantrell’s

representation of Juris in a lawsuit. Cantrell was properly served with the complaint as

prescribed by M. R. Civ. P. 4(d)(1) but did not respond within the timeframe required by

M. R. Civ. P. 12(a), (b). The District Court accordingly entered default against Cantrell on

December 6, 2017. Cantrell filed a notice of appearance on December 14, 2017 and filed

a motion to substitute the assigned District Court judge on December 15, 2017. The

District Court issued an order denying as untimely Cantrell’s motion to substitute. On

January 5, 2018, Cantrell filed a motion to set aside default under M. R. Civ. P. 55(c) (“The

court may set aside an entry of default for good cause[.]”). The motion “request[ed] that

the Court find[] good cause to allow this case to proceed on its merits,” and provided that

Juris did not oppose setting aside the default. The District Court granted the motion to set

aside the default on January 8, 2018. Cantrell then filed an answer to the complaint on

2 February 12, 2018, asserting for the first time that the District Court lacked personal

jurisdiction.

¶4 The parties engaged in discovery and further motion practice, until Cantrell filed a

motion under M. R. Civ. P. 12(b)(2) to dismiss Juris’s complaint for lack of personal

jurisdiction on December 11, 2018. Juris opposed the motion, arguing that Cantrell’s filing

of a motion to substitute and a motion to set aside default—prior to filing her answer—

were two “significant defensive move[s]” which constituted “voluntary general

appearance[s]” under Montana law. By not raising lack of personal jurisdiction in either

of these two motions, Juris argued that Cantrell waived her opportunity to contest personal

jurisdiction. The District Court ultimately granted Cantrell’s motion to dismiss. In support

of its grant, the District Court reasoned that, since the motion to set aside default was

unopposed, it was “not a defensive motion.” The court likewise held that a motion to

substitute “is not a defensive pleading as defined in Rule 12 of the Montana Rules of Civil

Procedure.” As such, the District Court held that Cantrell’s raising of lack of personal

jurisdiction in her answer satisfied the requirements of M. R. Civ. P. 12(b). Juris appeals

the District Court’s decision to grant Cantrell’s motion to dismiss. We reverse.

¶5 This Court reviews de novo a district court’s decision on a motion to dismiss for

lack of personal jurisdiction. Grizzly Sec. Armored Express, Inc. v. Armored Group, LLC,

2011 MT 128, ¶ 12, 360 Mont. 517, 255 P.3d 143.

¶6 On appeal, Juris argues that Cantrell waived her right to contest personal jurisdiction

by failing to raise the defense in her first responsive pleading to the District Court. Juris

asserts that Cantrell’s filing of the motion to substitute the judge and the motion to set aside

3 the entry of default were “significant defensive moves” which resulted in her consenting

to the court’s jurisdiction and waiving her personal jurisdiction defense. In other words,

the filings were substantive motions filed by Cantrell which qualified as her first

appearance before the District Court. Juris contends that the District Court misapplied this

Court’s holding in Spencer v. Ukra, 246 Mont. 430, 804 P.2d 380 (1991), when it held that

an unopposed motion was not a defensive motion. We agree with Juris that the District

Court misapplied our holding in Spencer. Cantrell’s motion to set aside the entry of default

was a responsive pleading as contemplated in M. R. Civ. P. 12(h)(1), and any argument for

lack of personal jurisdiction was waived by Cantrell’s failure to assert the defense at this

first opportunity.

¶7 M. R. Civ. P. 4(b) provides that a Montana court can acquire jurisdiction over any

person through service of process or “by the voluntary appearance in an action by any

person either personally or through an attorney, authorized officer, agent, or employee.”

M. R. Civ. P. 12(b)(2) states that a party may raise the defense of lack of personal

jurisdiction by motion at its option. Garza v. Forquest Ventures, Inc., 2015 MT 284, ¶ 43,

381 Mont. 189, 358 P.3d 189. A party may also waive a personal jurisdiction defense and

consent to a court’s jurisdiction. Garza, ¶ 43 (citing El Dorado Heights Homeowners’

Ass’n v. Dewitt, 2008 MT 199, ¶ 16, 344 Mont. 77, 186 P.3d 1249). Under M. R. Civ. P.

12(h)(1), a party waives the defense of lack of personal jurisdiction by: omitting it from a

motion in the circumstances described in M. R. Civ. P. 12(g)(2); or failing to either “make

it by motion under [Rule 12]” or “include it in a responsive pleading or in an amendment

allowed by Rule 15(a)(1) as a matter of course.” Rule 12(b) plainly states that the defense

4 of a lack of personal jurisdiction is waived only if a party does not raise the defense before

filing a responsive pleading. Milky Whey, Inc. v. Dairy Partners, LLC, 2015 MT 18, ¶ 11,

378 Mont. 75, 342 P.3d 13; see also Ins. Corp. of Ir. v. Compagnie Des Bauxites De

Guinee, 456 U.S. 694, 705, 102 S. Ct. 2099, 2105 (1982) (“[T]he failure to enter a timely

objection to personal jurisdiction constitutes, under Rule 12(h)(1), a waiver of the

objection.”).

¶8 Here, we are tasked with determining whether Cantrell’s filing of a motion to set

aside the entry of default was a “responsive pleading” in which the assertion of the defense

of lack of personal jurisdiction must have been included or else waived. Whether or not

an initial filing by a party qualifies as a “responsive pleading” turns on whether the filing

can be called “the first significant defensive move” made by the defendant in the case.

Milky Whey, ¶ 15.

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