Fru-Con Construction v. Thomas J. Wiens

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 95-4022
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Fru-Con Construction *
Corporation, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Thomas J. Wiens; John *
Silvia, Jr., * [UNPUBLISHED]
*
Appellants. *
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Submitted: February 20, 1997
Filed: March 10, 1997
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Before BOWMAN, MAGILL, and LOKEN, Circuit Judges.
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PER CURIAM.
Fru-Con Construction Corporation filed a complaint alleging
that Thomas Wiens and John Silvia as guarantors had defaulted on a
promissory note. To settle that claim, Wiens and Silvia executed
consent judgments, and Fru-Con agreed it would not file the
judgments if other settlement payments were timely made. After
defaults in those payments, the district court entered final
judgments in accordance with the consent judgments. Wiens and
Silvia now appeal a subsequent order denying their Fed. R. Civ. P.
60(b) motion to set aside the judgments. We affirm.
The district court has discretion to grant extraordinary
relief under Rule 60(b) upon a showing of "exceptional
circumstances." See Mitchell v. Shalala, 48 F.3d 1039, 1041 (8th
Cir. 1995). We conclude that the court did not abuse its
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discretion in denying defendants' motion without an evidentiary
hearing, because Wiens and Silvia presented no evidence that
compliance with the earlier settlement agreements made entry of the
consent judgments improper, other than their conclusory assertions
that Fru-Con was paid in full. See Printed Media Servs., Inc. v.
Solna Web, Inc., 11 F.3d 838, 842 (8th Cir. 1993) (standard of
review). We reject their challenge to the underlying final
judgments because a Rule 60(b) motion may not substitute for direct
appeal. See Spinar v. South Dakota Bd. of Regents, 796 F.2d 1060,
1062-63 (8th Cir. 1986).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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