Storseth v. Brown, Raymond & Rissler

805 P.2d 284, 1991 Wyo. LEXIS 14, 1991 WL 7449

• Court: Wyoming Supreme Court
• Decided: January 30, 1991
• Docket: No. 89-98
• Status: Published

Opinions

PER CURIAM.

This appeal involves attorney fees charged in an especially unpleasant divorce proceeding.¹ Appellees (law firm), sued their ex-client, Donna Mae Storseth (Stor-seth), for unpaid legal fees incurred through trial. It is from the summary judgment granted in favor of the law firm on that ancillary suit that this present appeal is pursued. Storseth states as her issues whether:

I.

4 * * the contents of appellant’s pro se pre-summary judgment motions were sufficient to raise a genuine issue of material fact as to appellant’s liability or the amount thereof which should have precluded summary judgement [sic].

II,

* * * appellant’s pro se status while she was endevoring [sic] to obtain competent counsel should entitle her to less stringent standards of legal competency as a matter of law.

III.

* * * the garnishment statute as applied to appellant, or on its face, is unconstitutional to the extent that AFDC and general assistance funds are exempt while court ordered child support and alimony are not.

The law firm responds:

I.

The district court did not commit an error of law by granting appellee’s motion for summary judgment[.]

II.

A pro se litigant is not entitled to greater rights than other litigants[.]

III.

The garnishment statute [sic] constitutionality is not relevant in this case.

This appeal will chronicle the adversities to be encountered in the lands of summary judgment, Cordova v. Gosar, 719 P.2d 625 (Wyo.1986), prematurely entered upon contended default of appearance, McGinnis v. Beatty, 28 Wyo. 328, 204 P. 340 (1922), without any notice of any default hearing, Spitzer v. Spitzer, 777 P.2d 587 (Wyo.1989). Those issues when extrapolated from the litigants’ arguments make sense only by retracing the procedural history of this fee litigation.

Storseth was engaged in a very disharmonious marital dissolution conflict and, in October 1987, retained the law firm for legal representation. A deal of some kind was struck, obviously not in writing, regarding fees. The representation then started and continued until an apparently unpleasant conference on August 22, 1988, followed by two letters of withdrawal of August 23 and 24 and a motion to formally withdraw filed August 24.

On December 5, the law firm filed suit for legal fees with interest. By happenstance and pure accident on exactly the same day, Storseth instituted a petition for arbitration of fee dispute before the Committee on Resolution of Fee Disputes of the Wyoming State Bar. The petition was dated December 2 and mailed to the office of the Wyoming State Bar and consequently docketed on December 5.²

Storseth responded to the district court complaint for legal fees by a motion to dismiss filed December 13 stating that “Defendant moves this Court for an Order dismissing the above entitled action on the grounds that it has been turned over to the FEE ARBITRATION BOARD.”

The law firm, following notice of a January 26, 1989 fee arbitration dismissal, filed a motion for summary judgment on February 6, 1989 and obtained a hearing date of February 22.

On February 21, Storseth, in handwritten form, filed a Motion for Order for Continuance Hearing On Motion for Summary Judgment. Apparently, a “conference” was held with the district judge on February 22, although nothing reflects that occurrence and no document was filed resetting a date for the summary judgment motion hearing. On March 2, Storseth filed a typewritten document captioned Emergency Motion for Enlargement of Time to Provide Competent Counsel for Purposes of Present Hearing.

On March 6, the law firm filed a traverse to the emergency motion denying all allegations and contending:

Defendant’s continued resistance to pay Plaintiff is frivolous and without merit. Defendant’s accusations are libelous and unsubstantiated. This case has already been heard by fee arbitration and Plaintiff is therefore entitled to costs and attorney’s fees as provided under Wyoming Statute § 1-14-128; Baseless Pleadings.

On March 6, a decision letter was rendered by the district court without hearing, which stated:

The above matter having come before the Court upon a motion for summary judgment by plaintiff, the defendant having been allowed an additional ten (10) days to file affidavits or other material in opposition to the motion, and the defendant having failed to file such material within the time allowed, the motion of the plaintiff is granted. [Counsel] is requested to prepare a judgment accordingly.

The next day, March 7, also without appearance or notice, an order of summary judgment was entered, from which this appeal is pursued, stating:³

THIS MATTER having come before the Court, upon Plaintiff’s Motion for Summary Judgment, and a hearing having been set February 22, 1989 at 8:30 a.m.; and the Plaintiff appearing * * * and the Defendant, Donna Mae Storseth, appearing pro se; and the Defendant having made representations to the Court that she is without counsel and in need of legal assistance, the Court FINDS as follows:

1. That Plaintiff filed a Complaint on December 5, 1988, and service of process was duly made upon Defendant.

2. That on or about December 13, 1988, Defendant submitted an Attorney Fee Dispute to the Fee Arbitration Committee of the Wyoming State Bar.

3. That at the time Defendant submitted her fee dispute to Fee Arbitration, Defendant filed a Motion to Dismiss dated December 13, 1988. Defendant did not set her Motion to Dismiss for motion hearing and more than sixty (60) days has transpired and therefore Defendant’s Motion to Dismiss is deemed denied.

4. On or about January 26, 1988 the Fee Arbitration Committee of the Wyoming State Bar dismissed the fee arbitration filed by Donna Mae Storseth, for lack of jurisdiction. A copy of that decision is filed herein. This Court therefore has jurisdiction to decide the matter.

5. That the Defendant has not filed an Answer to Plaintiffs Complaint and that the Defendant has therefore failed to provide the court with a meritorious defense.

6. In an attempt not to prejudice the Defendant, this Court allowed the Plaintiff an additional ten (10) days from February 22, 1989 to procure counsel in order to present necessary pleadings to the Court.

7. Ten (10) days has elapsed as of March 4, 1989 and pursuant to the rules of procedure, the Defendant’s 10th day to comply with the Court Order would be Monday, March 6, 1989.

8. The Defendant filed another Motion for Enlargement of Time to Provide Competent Counsel on March 2, 1989. The Court finds that said motion does not comply with the court’s instructions of February 22, 1989. Said motion does not offer a meritorious defense nor does it respond to Plaintiff’s motion for summary judgment.

9. The Defendant has failed to comply with the Wyoming Rules of Civil Procedure in that Plaintiff’s complaint remains unanswered, and affidavits have not been filed in response to Plaintiff’s motion for summary judgment.

10. Plaintiff is being prejudiced by the continuation of this lawsuit, and that the Plaintiff is entitled to protection from the continued diminishment of Defendant’s estate.

WHEREFORE, the Court orders as follows:

1. That Defendant’s Motion to Dismiss dated December 13, 1988 is deemed denied.

2. That Plaintiff’s Motion for Summary Judgment dated February 6, 1989 is hereby granted and Plaintiff is awarded Judgment in the amount of Seven Thousand Three and 46/100 Dollars $7,003.46.

DONE IN OPEN COURT this 7th day of March, 1989.

(Emphasis added.)

On the same day that the order of summary judgment was issued, the law firm had the clerk of court issue a notice of right to hearing on execution and garnishment and followed with three executions, which included garnishment of bank accounts of Storseth on March 10, 1989 at Hilltop National Bank, the Wyoming National Bank and the Mountain Plaza Bank as well as execution on the Storseth family motor vehicle which was “expeditiously” seized by the sheriff for execution sale. Proceeds at least alleged to have been child support were obtained at the Mountain Plaza Bank in the net amount credited of $745.05, after deduction of costs and judgment interest, and gross sale price of $5,083.45 for the family vehicle, against which were charged $93.09 as expenses, for a net credit of $4,990.36.

This litigation was not yet to end. Immediately after Storseth discovered that a summary judgment had been entered, she filed a comprehensively detailed motion for reconsideration or, in the alternative, a motion for relief from the district court’s order of summary judgment pursuant to W.R.C.P. 60(b) and a motion to stay judgment pending reconsideration and/or motion to vacate pursuant to W.R.C.P. 60(b). On the same day, March 10, Storseth filed a request for hearing on rights to exemption which related specifically to the family motor vehicle which had then been picked up. A hearing on exemptions was scheduled for March 17. On March 13, Storseth filed a further document as a motion to stay execution of judgment pending review. The law firm filed a traverse to the W.R.C.P. 60(b) motion and motions for stay by substantive attack, which documents included the following statement:

Furthermore, Defendant has already submitted her case to fee arbitration pursuant to guidelines and rules of the Wyoming State Bar. At the time of submission, the Defendant stated that the decision of the arbitration committee would be binding. As previously stated, the Fee Arbitration Committee of the Wyoming State Bar dismissed Defendant’s fee arbitration for lack of jurisdiction, meaning that an arguable fee dispute did not exist. Therefore, Defendant has failed to demonstrate any other reason for setting aside default.

The district court never entered a ruling on the W.R.C.P. 60(b) motion and it was deemed denied pursuant to W.R.C.P. 59.

On March 22, Storseth filed a notice of appeal pro se stating:

NOTICE IS HEREBY GIVEN that Donna Storseth Defendant above named, hereby appeals to the Supreme Court of the State of Wyoming from the “Order Summary JUDGEMENT” and “EMERGENCY MOTION FOR ENLARGEMENT OF TIME TO PROVIDE COMPETENT COUNSEL FOR PURPOSES OF PRESENT HEARING” and “MOTION TO STAY THE JUDGEMENT PENDING RECONSIDERATION and/or MOTION TO VACATE TO RULE 60-(b)” and the order granting Plaintiff[’]s “MOTION FOR ORDER DIRECTING DEFENDANT TO TURN OVER PROPERTY TO PLAINTIFF” ENTERED THIS 22 day of MARCH 1989.

By the issues thus defined, we reverse and set aside the summary judgment and remand to provide an opportunity for Stor-seth to obtain a determination on the merits for the issues presented.

Discussion will be confined for reversal to the scheduling and process used by the district court for entry of the summary judgment. For this purpose, we accept the validity of the statement in the March 7, 1989 summary judgment document as a fact otherwise undocumented in this record that the originally scheduled February 22, 1989 hearing convened in some fashion and was then continued for ten days to permit the unrepresented litigant to obtain counsel. That order granting summary judgment from which this appeal was premised stated first, “[i]n an attempt not to prejudice the Defendant, this Court allowed the Plaintiff an additional ten (10) days from February 22, 1989 to procure counsel in order to present necessary pleadings to the Court;” and then “[t]en (10) days has elapsed as of March 4, 1989 and pursuant to the rules of procedure, the Defendant’s 10th day to comply with the Court Order would be Monday, March 6, 1989.”

W.R.C.P. 6(a) on computation of time then (and now) provides:

In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statutes, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, or, when the act to be done is the filing of a paper, a day on which weather or other conditions have made the office of the clerk of the court inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days. When the period of time prescribed or allowed is less than eleven (11) days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this rule, “legal holiday” includes any day officially recognized as a legal holiday in the state by designation of the legislature or appointment as a holiday by the governor.

Whether orally done or if an order had been entered resetting the case after ten days from the February 22, 1989 hearing date scheduled, the decision was written on Monday, March 6, 1989, which was the eighth day (four weekend days intervening) and the summary judgment was entered on March 7, 1989, which was the ninth day, or one day before expiration of the hearing date, if in fact any hearing date had been validly set. Midway Oil Corp. v. Guess, 714 P.2d 339 (Wyo.1986); Emery v. Emery, 404 P.2d 745 (Wyo.1965); Wright & Miller, Federal Practice and Procedure, Civil 2d, § 1162 (1987).

If it is considered that counsel and the district court were not confined in time to further plead by W.R.C.P. 6, there remains another dispositive scheduling problem. Storseth had entered an appearance and the record reflected, albeit in pro se form, that she was contesting the legal fees. The Wyoming rule on entry of default, W.R.C.P. 55(b)(2), requires a written notice three days prior to the application for judgment. No compliance with this requirement was provided. Lawrence-Allison and Associates West, Inc. v. Archer, 767 P.2d 989 (Wyo.1989); Deutz-Allis Credit Corp. v. Smith, 785 P.2d 682 (Idaho App.1990).

Consequently, we have an undocumented continuance without a specific future date stated for hearing, decision entered before a stated ten days had expired, and no compliance with the three day notice provision required to obtain- a default judgment. A motion then made to set aside the default and default summary judgment was denied by the expiration of the time provided by W.R.C.P. 59(f) of sixty days without ruling.⁴ The summary judgment was prematurely entered and will be reversed to afford Storseth and present counsel an opportunity to respond within the time provided by a properly scheduled summary judgment hearing.

This court has previously examined the effect of a premature entry of a default judgment before answer time has expired. If the district court properly reset the hearing for this case with an additional ten day extension, those ten days are covered by W.R.C.P. 6 and would not include weekend days within the period. Consequently, entry of the order occurred before the hearing date and was improper. In the early Wyoming case of McGinnis, 204 P. 340, a motion to dismiss was denied and the answer then filed was struck as out of time when a rule date had not been formally fixed. This court held that striking the answer was improper and a default would be vacated without any requirement to address a meritorious defense.

As it was not proper to strike the answer from the files, it follows that the defendant was not really in default. The respondent contends, however, that the ease came on regularly for trial, the defendant failing to appear; that evidence was taken, as recited by the judgment, in proof of plaintiff’s case; and we should presume that the result would have been no different if the answer had been allowed to stand. In other words, it is claimed that no prejudice to defendant resulted from the action of the court. We do not so view the case. There is no provision of the Code which authorizes a default of a defendant who merely fails to appear at the time of trial.

Id. at 343. See also McDaniel v. Hoblit, 34 Wyo. 509, 515, 245 P. 295 (1926). Direct relevance is supplied by English v. Smith, 71 Wyo. 1, 17, 253 P.2d 857, 862, reh’g denied 71 Wyo. 28, 257 P.2d 365 (1953), which contains procedural similarities where “[t]he defendant was not properly in default and it appealed] that the judgment was prematurely entered.” The court found that the judgment “was at least voidable.” Id. 253 P.2d at 862. This court further discussed void judgments in Wunnicke v. Leith, 61 Wyo. 191, 157 P.2d 274 (1945) and Kimbel v. Osborn, 61 Wyo. 89, 156 P.2d 279 (1945), where entry by default was made by the clerk of court. As such, it was not merely irregular or erroneous, “but absolutely void and a nullity.” Wunnicke, 157 P.2d at 277. The adherence to the schedule of the court that is binding on the litigant, Rim Group v. Mountain Mesa Uranium Corp., 78 Wyo. 204, 321 P.2d 229, reh’g denied 78 Wyo. 204, 323 P.2d 939 (1958), is likewise binding upon the court as a question of due process. In particular, the notice requirement of W.R. C.P. 55(b)(2) justifies litigant reliance. Lawrence-Allison and Associates West, Inc., 767 P.2d 989; Sanford v. Arjay Oil Co., 686 P.2d 566 (Wyo.1984). A similar rule appertains to the ten day notice of W.R.C.P. 56(c). Torrey v. Twiford, 713 P.2d 1160 (Wyo.1986); Alghanim v. Boeing Co., 477 F.2d 143 (9th Cir.1973).

Lawrence-Allison and Associates West, Inc., 767 P.2d at 998, Thomas, Justice, specially concurring, has factual similarities where counsel withdrew and a W.R.C.P. 55(b)(2) notice was not given. As a result, there was an erroneous judgment. The same issue was created and the identical result followed in Spitzer, 777 P.2d 587, where a default was entered for neglect or refusal to comply with discovery and a default decree was entered as a complex divorce settlement decision without any hearing. Accord Lovato v. Santa Fe Intern. Corp., 151 Cal.App.3d 549, 198 Cal.Rptr. 838 (1984). Another recent Wyoming case, Midway Oil Corp., 714 P.2d 339, is directly applicable where a default judgment was also entered. The court in Midway Oil Corp., 714 P.2d at 345 (footnote omitted) said:

Since the answer date had not expired at the date that the default was entered or the date when the judgment was rendered, the judgment as entered is void or at least voidable. No denial discretion remained when the motion to vacate the default judgment was seasonably made. Vanover v. Vanover, supra [77 Wyo. 55, 307 P.2d 117 (1957) ]. See also Emery v. Emery, Wyo., 404 P.2d 745 (Wyo.1965), and National Supply Co. v. Chittim, supra [387 P.2d 1010 (Wyo.1964)].

This present case is remanded to set aside the default judgment and afford reasonable opportunity for Storseth to pursue her contest to the claimed legal fees by a response to the motion for summary judgment and, if any appropriate issue of fact is developed, for a trial on the merits.

Reversed and remanded.

URBIGKIT, C.J., filed a specially concurring opinion.

THOMAS, J., filed a specially concurring opinion, with whom CARDINE, J., joined.

CARDINE, J., filed a specially concurring opinion, with whom THOMAS, J., joined.

1 . Storseth v. Storseth, 792 P.2d 243 (Wyo.1990). Appellant's counsel withdrew from that appeal and counsel for the husband has been disbarred for events that occurred in another divorce case. Bad winds blow upon the Storseth divorce litigation.

2 . The fee arbitration effort of the client did not succeed. The details are related in the attached special concurrence authored by Chief Justice Urbigkit.

3 . There was no approval as to form by the pro se litigant. Rule 404, Uniform Rules for the District Courts.

4 . Cf. Jaxon v. Circle K Corp., 773 F.2d 1138 (10th Cir.1985), summary judgment granted against pro se litigant after request for time was made. The court in Whitaker v. Coleman, 115 F.2d 305, 307 (5th Cir.1940) stated:

Summary judgment procedure is not a catch penny contrivance to take unwary litigants into its toils and deprive them of a trial, it is a liberal measure, liberally designed for arriving at the truth. Its purpose is not to cut litigants off from their right of trial by jury if they really have evidence which they will offer on a trial, it is to carefully test this out, in advance of trial by inquiring and determining whether such evidence exists.

See Greenberg v. Food and Drug Admin., 803 F.2d 1213 (D.C.Cir.1986); Alghanim v. Boeing Co., 477 F.2d 143 (9th Cir.1973); Toebelman v. Missouri-Kansas Pipe Line Co., 130. F.2d 1016 (3rd Cir.1942); and Cunningham v. Lanier, 555 So.2d 685 (Miss. 1989). See also Deutz-Allis Credit Corp., 785 P.2d at 684 (footnote omitted), which states:

However, a court’s usual discretionary authority to grant or deny such a motion [I.R. C.P. 60(b) ] may be greatly narrowed where certain procedural safeguards were not strictly complied with in obtaining the judgment. In cases where a party has appeared in the action, default judgment must be taken pursuant to I.R.C.P. 55(b)(2). Radioear Corp. v. Crouse, 97 Idaho 501, 547 P.2d 546 (1976). Under this rule, "the party against whom judgment by default is sought ... shall be served with written notice of the application for judgment at least three (3) days prior to the hearing on such application." Entry of a default judgment without the requisite three-day notice of application for the judgment renders the judgment voidable.