Wittich Law Firm, P.C. v. O’Connell

Wittich Law Firm, P.C. v. O’Connell, 2013 MT 122 (May 7, 2013) (4-1) (Wheat, J., for the majority; Baker, J. concurs; Cotter, J., dissents)

Issue: (1) Whether the district court slightly abused its discretion in denying O’Connells’ motion to vacate the default judgment, and (2) whether the law firm was properly awarded attorneys’ fees.

Short Answer: (1) No, as it was untimely under the 2009 Rules of Civil Procedure, and (2) yes, as the contract allowed them.


Facts: Wittich Law Firm, P.C. sued O’Connells for unpaid legal fees of $2,892 plus interest and attorney fees. O’Connells were personally served with process on Nov. 1, 2010. O’Connells did not file an answer or otherwise appear; however, the law firm sent O’Connells a letter on Nov. 17, 2010 advising them of an outstanding balance. The O’Connells paid $2,138.57 on Dec. 2, 2010. The firm immediately notified O’Connells that they still owed $93.99, and asked for payment by Dec. 10, 2010. On Dec. 1, 2010, while this correspondence was occurring, the law firm requested entry of default judgment, which was ordered on Dec. 3, 2010. The court entered judgment for the law firm for the unpaid balance plus $808 in attorneys’ fees in March 2011.

Procedural Posture & Holding: In December 2011, O’Connells moved under Rule 60(b) to vacate the entry of default judgment against them nine months after judgment was entered. The district court denied the motion, and ordered O’Connells to pay an additional $2,860 in attorneys’ fees and costs. O’Connells appeal. The Supreme Court affirms.

Reasoning: (1) O’Connells’ motion is governed by the 2009 version of the Montana Rules of Civil Procedure, which allow only 60 days to bring a motion under Rule 60(b)(1)-(3). Subsection (6) requires a higher showing of extraordinary circumstances, blamelessness, and that the movant acted within a reasonable time. However, if a party seeks relief under subsections (1)-(5), it cannot also seek relief under (6). O’Connells’ motion did not specify a subsection but alleges fraud, misconduct, and misrepresentation, which aligns with (3). It is therefore untimely.

(2) The contract for legal services stated that failure to pay fees and costs would subject the client to “all collection costs, including attorney fees.” The lower court had no discretion to deny a fee award.

Justice Baker’s Concurrence: Although the Wittich Law Firm was within its contractual and legal rights to pursue its claim for unpaid fees, members of the Bar should keep in mind the Court’s policy to resolve fee disputes without litigation.

Justice Cotter’s Dissent: O’Connells paid more than $2,100 to the Wittich Law Firm, disputing the balance of $93.99. The law firm told O’Connells to pay by Dec. 10, but meanwhile secured a default against the O’Connells. The Court carefully notes that the law firm was within its contractual rights to exact these sums from O’Connells. “Perhaps so. Nonetheless, I simply cannot join the Court in affirming this unconscionable result.”