No. 86-422 

IN TFE SUPREME COURT OF THE STATE OF MONTANA 

1987 

MARY ELIZABETH KREIN, 

Plaintiff and Appellant, 

-vsRICHARD W. HEINEMAN, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Seventh Judicial District, 

In and for the County of Dawson, 

The Honorable Byron L. Rohb, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James L. Norris, Rismarck, North Dakota 

For Respondent : 

Ira D. Eakin, Baker, Montana 

Submitted on Briefs: Jan. 22, 1987 

Decided: April 28, 1987 

Filed: RPQ~ i!1987 

-- Clerk 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

Mary Elizabeth Krein appeals the July 28, 1986, order 

and explanatory comment entered by the Seventh Judicial 

District Court granting defendant, Richard W. Heineman's 

motion for summary judgment. We affirm in part and reverse 

in part. 

Mary Elizabeth and Richard were married for four and 

one-half years prior to the May 4, 1981, decree dissolving 

the marriage. Richard is an attorney. Mary Elizabeth 

contends that at least seven attorneys refused to represent 

her in the divorce action because Richard was an attorney. 

From the record, it is unclear that all seven actually 

refused to represent her. Richard thereafter agreed to 

obtain the divorce for the parties. He prepared the petition 

for dissolution as well as Mary's response thereto. In her 

response, Mary Elizabeth agreed " [t] hat the parties have 

mutually divided all property they have acquired during the 

marriage relationship and have entered into a fair and 

equitable property settlement agreement . . ." 

Richard also prepared a property settlement agreement 

wherein he agreed to pay Mary Elizabeth alimony consisting of 

three $5,000 payments. The original agreement provided that 

the obligation would end upon Mary Elizabeth's remarriage. 

She refused to agree to that stipulation. Therefore, Richard 

removed the language stating that payments would cease upon 

Mary Elizabeth's remarriage, but continued to use the term 

alimony to describe the payments. 

The property settlement agreement also provided that 

Richard would pay all known outstanding obligations and debts 

of the marriage, that each individual would thereafter be 

solely responsible for his or her own obligations, and that 
Mary Elizabeth relinquished all claims to any property in 

Richard's possession in consideration for the personal 

property she had received. 

Richard paid Mary Elizabeth $5,000 in February 1981, and 

again in February 1982. He refused to make the February 

1983, payment as Mary Elizabeth had remarried. In response, 

Mary Elizabeth pursued two legal remedies. On July 12, 1984, 

she filed a motion in the original divorce action to set 

aside the property settlement agreement, alleging that fraud 

had been committed on the court. Also on July 12, 1984, Mary 

Elizabeth filed the complaint in this action, requesting to 

set aside the earlier property settlement agreement on the 

basis of fraud. 

Although not denominated as such, the motion was a Rule 

60 (b) (3) , M.R.Civ.P., motion. Rule 60 (b) (3) motions are to 

be filed within 60 days of service of notice of entry when 

service of notice of entry is required by Rule 77 (dl, 

M.R.Civ.P. Rule 77 (d) requires that notice of entry of 

judgment be served "upon all parties who have made an 

appearance . . . ." Mary Elizabeth appeared in the original 

dissolution action, but was never served with notice of entry 

of judgment. Therefore, the 60 days never commenced to run 

and the July 12, 1984, motion was timely filed. Morrison v. 

Higbee (Mont. 1983), 668 P.2d 1029, 1031-32, 40 St.Rep. 1031, 

1034. 

Rule 60(b) motions must also be scheduled for hearing 

within 10 days. Rules 60 (c) and 59, M.R.Civ.P. The hearing 

was held August 14, 1984, more than a month after the motion 

was filed. The motion was denied August 17, 1984, because of 

Mary Elizabeth's failure to set the hearing within ten days 

of filing the motion. 

Although the motion was dismissed, the complaint still 

existed. An amended complaint was filed February 4, 1986. 
In addition to requesting that the property settlement 

agreement be set aside for fraud, as had the first complaint, 

the amended complaint alleged that Richard's conduct toward 

Mary was legal malpractice and that it involved a conflict of 

interest, a breach of his attorney fiduciary duty and 

intentional or negligent infliction of emotional distress; 

mental anguish; punitive damages; treble damages for an 

attorney's deceit; attorney fees; and costs. Richard filed a 

motion and brief for summary judgment on March 19, 1986. A 

hearing on the motion was held July 22, 1986. At the close 

of the hearing, defendant's motion was granted. The trial 

judge determined that the original dissolution decree was in 

full force and effect and res judicata with respect to the 

issues raised by Mary Elizabeth. 

Mary Elizabeth now requests that this Court determine 

whether the trial judge erred in granting Richard's motion 

for summary judgment because the legal doctrine of res 

judicata does not apply and because there are genuine issues 

of material fact. 

Rule 60 (b) , M.R.Civ.P., provides: 

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 for the following reasons: . . . (3) 

fraud (whether heretofore denominated intrinsic or 

extrinsic), misrepresentation, -. or other misconduct 

of an adverse party; . . . ---- This rule does not limit 

the power - of - a court to entertain an independent 

Zion to relieve a party -- from a ju~ment, order, 

- or ~roceedina, or 50 qrant relief to a defendant 

kotAactually -personally- notified as may be required 

by law, or to set aside - a judgment - for fraud upon 

the court, 

In Kamp Implement Co. v. Amsterdam Lumber, Inc. (19751, 

166 Mont. 435, 441, 533 P.2d 1072, 1075, this Court held that 

the last sentence of Rule 60(b), M.R.Civ.P., permits a 
litigant to "obtain relief from a judgment obtained by fraud 

either by a motion under Rule 6O(b), M.R.Civ.P., - or by an 

independent action, it does not state that a litigant may 

pursue both remedies." Although Mary Elizabeth filed the 

Rule 60(b) motion and the independent action on the same day, 

she elected to pursue the motion remedy first. The motion 

might have provided a "plain, speedy, and adequate" remedy 

for the fraud claim had the hearing been timely held. As in 

Meyer v. Lemley (1929), 86 Mont. 83, 97, 282 P. 268, 272, 

cited in Kamp Implement, 166 Mont. at 441, 533 P.2d at 1075, 

[alppellant had an adequate remedy, invoked it, 

lost it through [her] own fault . . . [She] cannot 

be permitted, after having selected an appropriate 

and adequate remedy and having failed through [her] 

own fault to obtain relief thereby, to then harass 

[her] blameless adversary by pursuing another and 

different remedy. It is to the interest of society 

that litigation end;. . . Mary Elizabeth cannot, after wasting her opportunity to 

pursue a Rule 60(b) remedy, use an independent action to drag 

Richard back into court for the same purpose. 

However, the amended complaint in the independent action 

also contains counts which are not precise, but involve 

claimed negligence, legal malpractice and breach of fiduciary 

duty by Heineman. The Rule 60(b), M.R.Civ.P., motion did not 

cover those torts. They exist separate and independent from 

any fraud which might have resulted in the granting of the 

Rule 60 (b) motion. We therefore remand this action for 

further proceedings on the non-fraud issues raised in the 

amended complaint. 

Affirmed in part and reversed in part. 

Justice 

No. 86-422 . 1. -2' 'q",c'/y&-,,&' 

CLEFiK OF GYPSEid=: C~UR+ 

STATE OF FJ?J~~P:~A:~A MARY ELIZABETH KREIN, 

Plaintiff and Appellant, 

1 

RICHARD W. HEINEMAN, 

Defendant and Respondent. 

A change is required in the opinion issued in this cause 

by this Court on April 28, 1987, in order to more accurately 

reflect the law in Montana. 

IT IS HEREBY ORDERED that paragraph 3 on page 3 of the 

opinion be amended as follows. The paragraph which now 

states: - 

Rule 60 (b) motions must also be scheduled for 

hearing within 10 days. Rules 60(c) and 59, 

M.R.Civ.P. The hearing was held August 14, 1984, 

more than a month after the motion was filed. The 

motion was denied August 17, 1984, because of Mary 

Elizabeth's failure to set the hearing within ten 

days of filing the motion. 

shall become 

Rule 60(b) motions, at the time this motion was 

filed, had to be scheduled for hearing within 10 

days. The specific hearing requirements have now 

been eliminated by Rule 59 (d) , which in substance 

provides that if the court fails to rule within 45 

days of the filing oE the motion, the motion is 

'deemed denied; The hearing was held August 14, 

1984, more than a month after the motion was filed. 

The motion was denied August 17, 1984, because of 

Mary Elizabeth's failure to set the hearing within 

ten days - of filing the motion. 

& 

DATED this akay of May, 1987.