NO. 90-348 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

DAN J. DONOVAN and DEBORAH H. FOREMAN, 

husband and wife, 

Plaintiffs and Appellants, 

-vGERRY GRAFF, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Russell K. Fillner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Dan J. Donovan, Deborah H. Foreman, Denver, Colorado 

(pro se) 

For Respondent: 

K. D. Peterson; Peterson, Schofield & Leckie; 

Billings, Montana 

Submitted on Briefs: February 28, 1991 

Decided: March 28, 1991 

Filed: 
Justice R. C. McDonough delivered the Opinion of the Court. 

The plaintiffs Dan J. Donovan and Deborah H. Foreman appeal 

the order of the Montana Thirteenth Judicial District Court, 

Yellowstone County, denying their motions for relief from judgment 

under Rule 60 (b) (1) M.R. Civ. P. and for reconsideration of their 

motion for summary judgment. The sole issue for review on this 

appeal is whether the District Court erred in denying these 

motions. We affirm. 

Due to the nature of the motions at issue in this appeal, it 

is unnecessary for us to present an extensive recitation of the 

facts and procedural history of plaintiffs1 underlying case. 

Donovan and Foreman filed a lawsuit against Graff for negligence 

based on the Montana Scaffolding Act, 5 50-77-101, MCA, and a claim 

for loss of consortium. The plaintiff's filed their motion for 

summary judgment and brief in support thereof on the issue of 

liability on August 28, 1989, but did not file other supporting 

documents. Defendants filed their motion for summary judgment and 

all necessary supporting documents on September 1, 1989. The 

District Court filed its order and memorandum granting defendant's 

motion and denying plaintiffs1 motion on December 18, 1989, and 

notice of entry of the judgment was filed on January 11, 1990. 

In its memorandum the court noted that the plaintiff Is did not 

file any documents to support the factual basis of their motion. 

Rather, the plaintiffs cited in their supporting brief the 

transcript of an earlier case in the Thirteenth Judicial District 

[Yellowstone County, DV 85-4051 arising out of a contract between 
the parties. The court noted: 

It is important to note that the plaintiffs1 other 

contentions . . . are not supported by evidence which 

this court may consider under Rule 4, Uniform District 

Court Rules. The plaintiffs' contentions are made from 

an earlier action between the parties for breach of 

contract (DV 85-405), and from depositions associated 

with that case. These contentions have been made without 

filing a copy of the transcript or deposition with this 

Court. Rule 4 states: 

"When any motion is filed making reference to 

discovery, the party filing the motion shall submit 

the relevant unfiled document^.^^ 

Therefore, given the evidence presented which this 

Court may consider for summary judgment purposes, the 

plaintiffs have not met their burden of coming forward 

with evidence to raise a genuine issue of material fact. . . . 

Donovan and Foreman did not appeal the December 18, 1989 order 

granting the defendant summary judgment within the 30 day time 

period from the notice of entry of judgment as required by Rule 5 

On March 14, 1990 Donovan and Foreman filed a timely motion 

for relief from judgment pursuant to Rule 60(b)(1) M.R.Civ.P. in 

conjunction with a motion for reconsideration of their earlier 

motion for summary judgment. The District Court denied these 

motions in an order dated April 30, 1990. The plaintiffs filed 

their notice of appeal of this order on May 30, 1990. 

Donovan and Foreman's motion for relief from judgment is based 

on Rule 60(b)(1) M.R.Civ.P., which provides in pertinent part: 

Rule 60(b). Mistakes -- inadvertence -- excusable 

neglect -- newly discovered evidence -- fraud, etc. On 

motion and upon such terms as are just, the court may 

relieve a party or his legal representative from a final 

judgment, order, or proceeding forthe following reasons: 

(1) mistake, inadvertence, surprise, or excusable neglect 
. . . . A motion under this subdivision (b) does not 

affect the finality of a judgment or suspend its 

operation. This rule does not limit the power of a court 

to entertain an independent action to relieve a party 

from a judgment, order, or proceeding, or to grant relief 

to a defendant not actually personally notified as may 

be required by law, or to set aside a judgment for fraud 

upon the court. 

Defendant Graff argues that Donovan and Foreman are simply 

attempting to extend the time for appeal with a Rule 60(b) motion 

attacking the District Court's grounds for granting summary 

judgment. Graff also contends that Donovan and Foreman are not 

entitled to relief on the grounds of mistake under Rule 60(b) (1) 

because they simply made a mistake in understanding the law 

regarding filing papers in support of a motion for summary 

judgment . 

We agree. Donovan and Foreman devoted the majority of their 

initial brief to arguing the merits of the court's grant of summary 

judgment to the defendant. They do not even discuss the grounds 

for relief under Rule 60(b) until their reply brief. While an 

order denying a motion under Rule 60 (b) is final and appealable, 

the appeal from such denial brings up for review only the order of 

the denial itself and not the underlying judgment. 11 Wright and 

Miller, Federal Practice and Procedure, 2871, pp. 258-59, 7 

Moore's Federal Practice, 5 60.30 [3], pp. 60-344, 60-345. 

Furthermore, we note that part of Donovan and Foreman's motion is 

entitled "reconsideration of plaintiffs1 motion for summary 

judgmentl1. Reconsideration of an earlier motion on its merits 

cannot be the subject of a Rule 60(b) motion. Because Donovan and 

Foreman failed to raise the merits of the grant of summary judgment 
with a timely appeal or request for reconsideration under Rule 59, 

we are precluded from reviewing these matters. 

In this case, the possible error that might constitute the 

grounds for the Rule 60(b) motion can be charged to either Donovan 

and Foreman for failing to file the transcripts from the earlier 

action in support of their motion for summary judgment, or to the 

District Court for failing to take judicial notice of the 

transcripts pursuant to Rule 202 M.R.Evid. Regarding the latter 

ground, we note that when Donovan and Foreman filed their motion 

for summary judgment on August 28, 1989 they did not specifically 

request the court to take judicial notice of the transcript; in 

fact, they failed to do so until they filed their Rule 60(b) motion 

on March 14, 1990. 

First, we consider the argument that Donovan and Foreman's 

failure to file the transcript from the earlier case constitutes 

mistake, inadvertence, surprise, or excusable neglect under the 

rule. In their brief supporting their Rule 60(b) motion Donovan 

and Foreman argue that their failure to file the transcripts was 

the result of mistake or inadvertence. Donovan and Foreman argued 

to the District Court that because the transcript was already on 

file they 

mistakenly believed that the District Court would take 

judicial notice thereof to decide the parties1 Motions 

for Summary Judgment, pursuant to Montana Rules of 

evidence, Rule 202(c). For that reason, and in the 

interest of record-keepinq economy at the District Court, 

plaintiffs mistakenly believed that the Court would not 

require an additional copy of the two (2) volumes of 

trial transcript in cause no. DV 85-405 to be filed in 

cause no. 87-1522. Plaintiffs therefore inadvertently 

failed to file a separate copy of the 402 pages of trial 
transcript. 

Based on this argument, Donovan and Foreman cannot claim that their 

failure to file the transcript was llinadvertentll orthe result of 

llneglect.gl Rather this argument reveals that they simply were 

mistaken in believing that the District Court would take judicial 

notice of the record from the earlier case. It is well settled 

that there is no ground for a Rule 60(b) motion where the mistake 

is purely a mistake of law, as ignorance of the law is no excuse. 

Rieckhoff v. Woodhall (1937), 106 Mont. 22, 30, 75 P.2d 56, 58; 

Mantle v. Casey (1904), 31 Mont. 408, 416, 78 P. 591, 594; 7 

Moore's Federal Practice, 560.22 [2], p. 60-179. The District 

Court correctly denied their Rule 60(b) motion on this ground. 

In their reply brief on appeal Donovan and Foreman contend 

that the court erred in denying their Rule 60(b) motion because the 

court itself made a judicial mistake in failing to take judicial 

notice of the transcript from the earlier case. As noted earlier, 

Donovan and Foreman did not request the court to take judicial 

notice of the transcript; they failed to do so until they filed 

their Rule 60(b) motion on March 14, 1990. Moreover, while the 

authorities are uncertain as to when a Rule 60(b) motion may be 

made based on a judicial mistake rather than a mistake by a party, 

they are in agreement as to when such a motion should be filed in 

order to be timely. If the alleged error involves a fundamental 

misconception of the law by the court and the motion is not made 

until after the time for appeal has run then relief should be 

denied. 11 Wright and Miller, Federal Practice and Procedure, 9 
2858, pp. 176-80; see also 7 Moore's Federal Practice, 5 60.22 [3], 

pp. 60-185, 60-186; Note, Federal Rule 60(b) : Finality of Civil 

Judgments v. Self-correction by District Court of Judicial Error 

of Law (1967) , 43 Notre Dame Lawyer 98. This is consistent with 

the rule that a Rule 60(b) motion may not be used as a substitute 

for appeal. 7 Moore's Federal Practice 5 60.18 [8] p. 60-140; 

McCarthy v. Mayo (9th Cir. 1987), 827 F.2d 1310, 1318; Sheridan v. 

Martinson (1974), 164 Mont. 383, 387, 523 P.2d 1392, 1394. In 

light of these comments and the position taken by the majority of 

jurisdictions, Donovan and Foreman are precluded from alleging 

judicial mistake as a ground for their Rule 60(b) motion. 

The order of the District Court is 

AFFIRMED. 

We Concur: 1