MUELLER v MILLER
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No. 95-222 IN THE SUPREMECOURT OF THE STATE OF MONTANA 1995 LORNIE K. MUELLER and ROSE E. MUELLER, Petitioners and Respondents, v. JOHN S. MILLER, Respondent APPEAL FROM: and Appellant. District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable John Larson, Judge presiding. COUNSEL OF RECORD: For Appellant: Mark E. Jones, Montana Attorney at Law, Missoula, For Respondents: Nancy K. Moe; Ellingson Harold & Moe, Missoula, V. Dye; Dye Law Office, Submitted Missoula, on Briefs: Decided: Filed: Montana Montana August 3, 1995 August 22, 1995 Justice Karla M. Gray delivered John S. Miller conclusions of District law Court, motion for (Miller) and appeals order Missoula relief the Opinion and motion from entered County, leave the by denying for of the Court. findings the his of Fourth combined to amend his fact, Judicial Rule 60(b) pleadings. We affirm. The dispositive erred in denying Lornie petition Miller Miller's K. for issue motion Mueller the parties against into failed Muellers failed to give subsequently unlawful detainer, a stipulation for On August granted, against a response, Court Miller. an extension granted the the the Muellers' alleged took possession of the contract; and that that to the of and, that Millers Muellers. The add claims for to the and injunctive relief. on May 28, 1992. He subsequently his proceeding bankruptcy and of judgment Andrea against the Muellers filed Miller's counsel filed K. and purchase petition of time to respond. Muellers a sale the property The Muellers 15, 1994, filed The petition the terms petition; confession Court and Andrea Miller for amended their 1994. (Muellers) the Millers answered the petition in judgment of holdover bankruptcy dismissed Mueller demanded possession; possession Muellers filed that the District from summary judgment. appellant to comply with properly Miller relief a contract land owned by the Muellers; the for on December 11, 1991. entered thereafter, us is whether and Rose E. ejectment (Millers) before a notice motion 2 for Miller was filed a Andrea Miller. a motion for moved for, summary and was When Miller did not file of The District issue. summary judgment on October 5, 1994. on The Muellers October Miller 1994. 25, preliminary filed.and The injunction just had responded, appeared, counsel served notice Muellers prior and had to their a hearing of entry court Miller motion for motion, at which had 1994, a summary judgment was held the filed of judgment and his issued filed Miller the preliminary injunction. On November relief from The basis 17, summary judgment of the motion the Muellers' illusion counsel that that in The parties judgment and the court findings motion of for answer. fact, District from of a party order, Miller relief Court also prejudiced from filed law and order summary judgment its summary extensive denying and motion Miller's to Miller's terms as are or legal amend his motion representative a party's or proceeding generally must judgment. Rule 60(b), from judgment served; and upon such Motions M.R.Civ.P. for motion appeals. "On motion judgment, the hearing. Did the District Court err in denying for relief from summary judgment? relieve the counsel for an evidentiary the 1995, motion was that by creating with Miller's for amended answer. on the court he was not the conclusions relief Miller held file was served serve briefed 3, fraud to to motion from summary judgment fact, failure Miller. On January relief counsel when, the and motion committed Miller's summary judgment alleged for a combined for for alleging from judgment 60 days M.R.Civ.P. fraud the Here, Miller's on the court 3 of court from . . . (3) fraud[. relief be made within just, I of motion was timely a final Rule 60(b), based notice may on fraud entry for made. relief of The District findings of Court fact. It M.R.Civ.P., that Rule 60(b) motion District Inc. 601. v. Miller for whether relies is performed rendered. The misconduct failed (Ginnings) , with the impression that and, Muellers without genuine as issues Montana for a result, giving him of material an fact Billings omitted). 83, 282 P. the Muellers' Laurence existed to which is counsel Ginnings, Esq. created serving summary judgment opportunity when the judgment had been made by obtained the is committed summary judgment; service supports 86 Mont. is that a court's erroneous 329 (citation (1929), his counsel, motion for Bank of on the court he alleges the 803 P.2d clearly by the one in whose favor proper counsel; fraud to serve 470, evidence 854 P.2d 326, that misconduct intentionally substantial on Meyer v. Lemley the proposition 245 Mont. v. a party's abuse of discretion. a three-part Tonack 60(b), Thus, we review which form the basis under 251, of Rule or denying for (1990), of fact 247, based on extensive language motion of Revenue challenged. 258 Mont. (1993), the in granting of Miller's first, motion is discretionary. determination being from action findings involving, Miller's clear relief Dep't We review findings 268, for denial discretionary test is a court's Court's Steer, denied the other for the establish that precluded summary judgment. The District fact in this before appellant it. Court regard, made the based on the pleadings, The Muellers Miller following and filed Andrea personally Ginnings was Ginnings subsequently a petition K. served filed Miller as a notice 4 extensive exhibits for in counsel of findings and testimony ejectment December for appearance of the against of 1991. Millers. on behalf of Miller only. Ginnings filed 21, 1994. for the Muellers, date. a status report Nancy Moe, Esq. filed Moe filed concerning a status an updated Miller's reflected (Moe), pending updated Miller status 20, indicating both Ginnings scheduling that Ginnings Moe filed Hussey that action order. Miller's behalf. Muellers' served motion only behalf preliminary clerk seeking 10, preliminary 1994, a continuance Hussey on June 28, 1994, for to both to Hussey order regard and other in scheduling scheduling with and Miller the proposed Thereafter, on to the matters, Moe Miller. Hussey filed to a reflect a motion hearing Notes motion. aide Court's on both Moe wrote injunction regard injunction she served The District proposed 21, 1994. with and judicial action; status the conversation about the stipulated Hussey as counsel On August Miller's for the he would be representing and would be conferring on July was updated conversation 8, 1994, Hussey had advised behalf (Hussey) and Hussey. confirming On July Hussey signed report Miller. letters and Ginnings. Ginnings the Moe sent 1994, Moe served action. of the bankruptcy for 17, status Esq. June 23, 1994, was served as counsel which the counsel on the same on February an additional and Hussey on Miller's issued behalf action; bankruptcy on January earlier Bruce Hussey, Moe and Hussey had a telephone after replaced report the 1994, behalf on their bankruptcy dismissal order, and Ginnings report on both report On June report in having status Moe's understanding representing on Miller's in Hussey's of the hearing 5 date the on to the court's active through continue on Muellers' file involvement telephone by a in calls to the court. preliminary Hussey injunction Moe filed filed the Muellers' a motion for a response on Miller's and served 1994, 15, filed it behalf motion for on Hussey extension to the on August on August counsel. to respond for 11, 1994. summary judgment as Miller's of time motion Hussey to the motion for to the summary judgment. District The preliminary injunction behalf. Miller (Jones) Jones denied hearing appeared indicated he was appearing arguments and "our client." "other pending motion injunction during settlement proceedings; the hearing for time. The District Court failure to respond. filed, did Jones not serve filed 19, 1994; that references Miller Court issued referred to to the during the the preliminary regarding served Hussey on Miller's behalf. after its to "my referred judgment issued Esq. Throughout notice of issue Hussey failed in response to his motion granted summary judgment After a notice Jones, order summary judgment the time granted on Miller's on August with The court and also E. Hussey. the Muellers' within Miller's hearing summary the court Hussey was served with motion Mark The District hearing. injunction with for for continue Hussey had filed At the same hearing, as Hussey. preliminary motion were interspersed attorney" Muellers' the which injunction Jones' client" the personally at the preliminary hearing, his Court notice of entry of appearance for regarding to respond extension of on the basis of of judgment was on Miller's behalf; he Hussey. On the basis of these extensive specifically found that Ginnings not actively represent Miller findings, did not file in written 6 the District any pleading, pleadings, after Court and did January 21, 1994. The court inaction was his belief Hussey, and later The court Ginnings .found for having Jones, further Hussey to represent found hearing judgment demonstrated Finally, the court time that that Ginnings' had retained of the own actions for Hussey to be his filings hearing representing summary counsel. and Jones' negated Miller in injunction the motion Hussey's that the Muellers' preliminary briefing both established Miller's injunction was actively Miller in opposing he considered found for him. and that for reason that participated at the preliminary Ginnings the no testimony a continuance and additional statements that summary judgment, seek that and understanding would have actively motion that also any notion at any point past June 29, 1994. On the basis Court ultimately actively found that for with matter summary judgment. "misrepresentation" findings Moe had not or constructively--any motion the of these extensive As a result, element of fact, misrepresented--either regard to the Muellers' the court necessary the District concluded to a fraud claim that had not been established. We note that, nonsubstantive findings these extensive nor substantial findings does our evidence that and that the District exception Miller of fact review in support the findings are Court nor are we left of between certain testimony, conclude evidence; the differences and the evidence; with several of the District does not contend are unsupported of the record and Court's that any of by substantial disclose a lack of any of the findings. Thus, supported evidence by substantial did not misapprehend with technical a conviction 7 that the effect a mistake of we of the has been committed. On that of the court's basis, findings of fact Assuming arsuendo Mever is, as Miller the under court failed to court none erroneous. in the appropriate standard for on is that M.R.Civ.P., any misconduct conflicting with fraud Miller While by Moe. the regard to certain the province of of witnesses and to is within credibility in--the clear fraud testimony the conflicts it or it to determine resolve that set forth conversations, fact weigh--and is clearly conclude standard 60(b), with of the nonrecord we further the "misconduct" asserts, establish of that Rule was faced finder therefore, evidence, Tonack, the 854 P.2d at 329. Miller properly also serve argues his to no authority basis for Phennicie Rule appeal. here; which recognizes from judgment (1979), the issue 5(b), of improper M.R.Civ.P., in this in the attorney replaces Miller's (1979), addressed 60(b), 185 Mont. service 120, the Miller another for the point service v. Pirkle in (1993), Refrigerated 37, 591 P.2d 1120, also of initial Neither the validity at issue in the present 8 a direct unavailing at which 260 Mont. Freight and one case. 379, 860 Lines, is misplaced. of the validity under Rule 4D, M.R.Civ.P. under was served time for purposes. on Fonk v. Ulsher and Shields the issue of is In 787, attorney argument addresses Miller M.R.Civ.P. context representing to as a separate on a party's in that 604 P.2d Rule 5(b) reliance nor Rule 4D is Rule under argument Miller's rule 181 Mont. at the outset an attorney case, nothing by Moe's failure this was raised In any event, P.2d 145, We observe Phennicie v. example, he was prejudiced counsel. cites relief that service of initial Inc. Both cases of process service We hold in denying that Miller's the District Court motion relief for did not abuse its discretion from summary judgment. Affirmed. Pursuant 1988 Internal precedent with to Section Operating and shall the Clerk I, Paragraph Rules, this be published decision by its of the Supreme Court to Montana Law Week, State 3(c), Reporter We concur: 9 filing Montana Supreme Court shall not be cited as a public and by a report document of its and West Publishing as result Company.
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