No. 93-582 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

C. D. BURRINGTON, 

Plaintiff and Respondent, 

ANTHONY C. WELZENBACH, and all other persons, 

known or unknown, who claim or may claim any 

right, title, estate, lien, encumbrance or 

interest in the real property described in the 

complaint adverse to Plaintiff's title thereto, 

Defendant, Third-Party Plaintiff, 

and Appellant, rX? 

v. 

LEE E. BURRINGTON, 

Third-Party Defendant and Respondent. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Micheal H. Keedy, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Anthony C. Welzenbach, Pro se, Kalispell, Montana 

For Respondents: 

Paul A. Sandry and Mark L. Stermitz, Warden, 

Christiansen, Johnson & Berg, Kalispell, Montana 

Submitted on Briefs: July 6, 1994 

Decided: October 13, 1994 

Filed: 

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Clerk / 
Justice William E. Hunt, Sr., delivered the opinion of the Court. 

Appellant Anthony C. Welzenbach appeals from an order of the 

Eleventh Judicial District Court, Flathead County, denying his 

motion to set aside judgment. We affirm. 

We state the issue as follows: 

Did the District Court abuse its discretion in denying 

Welzenbach's motion to set aside judgment? 

On August 2, 1990, respondent C. D. Burrington filed a 

complaint to quiet title to real property naming Welzenbach as a 

defendant. On March 31, 1992, Welzenbach filed his answer, 

counterclaim, cross-claim, and third-party complaint against Lee E. 

Burrington. The Burringtons then filed a notice of taking 

deposition, naming Welzenbach as the deponent. Welzenbach failed 

to appear for the deposition. As a result, Lee E. Burrington filed 

a motion pursuant to M. R. Civ. P. 37(b)(2)(C) to strike 

Welzenbach's counterclaim, cross-claim, and third-party complaint. 

C.D. Burrington filed a motion for summary judgment against 

Welzenbach pursuant to M. R. Civ. P. 56. On May 6, 1993, the 

court held a hearing on the Rule 37 motion to strike and the 

Rule 56 motion for summary judgment. Welzenbach failed to respond 

to either of the motions or to appear at the hearing. On May 21, 

1993, the court issued its order dismissing Welzenbachis 

counterclaim, cross-claim, and the third-party complaint. The 

court also granted the motion for summary judgment. Welzenbach 
filed a motion to set aside the judgment, which the court 

dismissed. Welzenbach appeals the court's dismissal of his motion. 

Neither Welzenbachls motion to set aside judgment, nor his 

brief in support of his appeal to this Court, states the particular 

Rule of Civil Procedure upon which he seeks relief. Welzenbachls 

motion is grounded in M. R. Civ. P. 60(b), which sets forth the 

reasons entitling a party to relief from a final judgment or order 

when a timely objection is made. 

Our standard of review relating to discretionary trial court 

rulings on post-trial motions is whether the trial court abused its 

discretion in denying the motion. Steer, Inc. v. Deplt of Revenue 

(1990), 245 Mont. 470, 475, 803 P.2d 601, 603-04. We have held 

that only in an extraordinary case should a M. R. Civ. P. 60 (b) 

motion be granted. State ex rel. Rhodes v. District Court (1979), 

183 Mont. 394, 396, 600 P.2d 182, 183; Fiscus v. Beartooth Elec. 

Co-op, Inc. (1979), 180 Mont. 434, 439, 591 P.2d 196, 199. 

The court may relieve a party from a final judgment for the 

following reasons: 

(1) mistake, inadvertence, surprise, or excusable 

neglect; (2) newly discovered evidence which by due 

diligence could not have been discovered in time to move 

for a new trial under Rule 59(b) ; (3) fraud . . . misrepresentation, or other misconduct of an adverse 

party; (4) the judgment is void; (5) the judgment has 

been satisfied, released, or discharged, or a prior 

judgment upon which it is based has been reversed or 

otherwise vacated, or it is no longer equitable that the 

judgment should have prospective application; or (6) any 

other reason justifying relief from the operation of the 

j udgment . 

M. R. Civ. P. 60(b). 
In his motion to set aside the judgment, Welzenbach states 

that he had no knowledge of the May 6, 1993, hearing on the 

~urringtons~ motion to strike and motion for summary judgment. 

The record shows that on February 16, 1993, the Burringtonst 

attorney served a copy of the motion to strike and the motion for 

summary judgment on Welzenbachls attorney. On February 18, 1993, 

Welzenbachts attorney filed a motion to withdraw as counsel. That 

motion was granted on February 24, 1993. The court ordered that 

all notices in the matter should then be mailed to Welzenbachls 

Kalispell address. On March 15, 1993, the Burringtons' attorney 

sewed notice of the May 6, 1993, hearing on Welzenbach at the 

designated address. 

In its May 24, 1993, judgment, the court stated that 

Welzenbach had "been duly advised and notified of said motions, 

[and] failed to respond or appear to contest the motions. tt The 

record supports the courtts finding. Welzenbach has failed to 

demonstrate that this is the extraordinary case, or that any of the 

six criteria set forth in Rule 60(b), M.R.Civ.P., exist. 

We hold that the District Court did not abuse its discretion 

in denying Welzenbachts motion to set aside the judgment. 

We affirm. 

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. 

Justice 

We concur: