Mueller v. Miller ( 1995 )

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