No. DA 06-0478 IN THE SUPREME COURT OF THE STATE OF MONTANA 2007 MT 104
ORVILLE E. SKOGEN and ARLENE F. SKOGEN, Plaintiffs and Respondents,

v. BOB MURRAY, JR., et al., Defendant and Appellant.

APPEAL FROM: The District Court of the Eighth Judici al District, In and For the County of Cascade, Cause No. ADV-00-742, Honorable Thomas M. McK ittrick, Presiding Judge

COUNSEL OF RECORD: For Appellant: James A. Donahue and Gre gory J. Hatley, Davis, Hatley, Haffeman & Tighe, P.C., Great Falls, Montana For Respondents: Gary M. Zadick, Ugrin, Alex ander, Zadick & Higgins, P.C., Great Falls, Montana Robert B. Pfennigs and Bri on C. Lindseth, Jardine, Stephenson, Blewett & Weaver, Great Falls, Montana
Submitted on Briefs: April 4, 2007 Decided: May 1, 2007 Filed:

__________________________________________ Clerk2 Justice W. William Leaphart delive red the Opinion of the Court. ¶1 Bob Murray, Jr., filed a motion for relief fro m an order and a judgment pursuant to M. R. Civ. P. 60(b) in the Eighth Judicial District Court, Cascade County, which was deemed denied because the Dist rict Court did not rule on th e motion within sixty days of filing, pursuant to M. R. Civ. P. 60(c). We reverse and remand. ¶2 The issue on appeal is whether the Distri ct Court abused its discretion in denying Murray’s M. R. Civ. P. 60(b) motion. BACKGROUND ¶3 This appeal arises out of three consolid ated cases contesting property boundaries: Harding v. Savoy , Cause No. CDV-00-804; Skogen v. Savoy , Cause No. CDV-99-1152; and Skogen v. Murray , Cause No. ADV-00- 742. The cases were tried without a jury in January and February of 2002. The District Court ruled in favor of the Hardings and the Skogens (collectively the Pl aintiffs) and ordered that surveys be commissioned to determine the exact boundaries between th e parties’ property. The surveys were conducted in 2005. The Plaintiffs filed a mo tion on October 6, 2005, to have the surveys approved by the court and recorded with th e clerk and recorder. The District Court ordered that any objections to the surveys mu st be filed by Octobe r 26, 2005. Barbara Savoy, the defendant in the other cases, file d a motion for an extension of time to file objections. A thirty-day extension was gran ted, moving the deadline to November 25,
2005. ¶4 Murray had several objections to the survey relating to Skogen v. Murray , Cause No. ADV-00-742, based on the findings of an independent surveyor he hired to review3 the survey. John Poston, Murray’s attorney throughout the proceedings, did not file the objections. On January 5, 2006, the Plaintiffs again requested that the court approve the surveys since no objections had been filed. The court granted that motion on January 9, 2006, then filed a supplemental judgment on February 10, 2006, to include the legal descriptions of the property. ¶5 Murray hired new counsel and filed a moti on for relief from the order approving the surveys and the supplemental judgment, pursuant to M. R. Civ. P. 60(b), on March 8, 2006. In support of his motion, Murray file d an affidavit setting forth a record of his conversations with Poston rega rding filing objections to the survey. According to his affidavit, Murray discussed the Plaintiffs’ October 2005 motion with Poston on October 11, 2005. Poston stat ed he would send Murray a copy of the motion. Murray did not receive a copy from Poston, a lthough Murray had already obtained a copy of the motion and an unsigned or der accompanying the mo tion directly from the court file. Murray next talked to Poston on Oc tober 21, 2005, while Poston wa s on a hunting trip in South Dakota. They discussed some objections prep ared by a surveyor Murray had hired, and Murray told Poston that the court had set a deadline fo r filing the objections. Poston already knew of the deadline because he had received a letter from one of the Plaintiffs’ attorneys notifying him of th e deadline and letting Poston know he would agree to an extension if Poston wanted. Poston told Murray not to worry because he and the opposing attorney had a “g entlemen’s agreement” to extend the deadline for filing objections.4 ¶6 On October 25 and 27, 2005, Murray received a draft copy and a revised copy of the objections prepared by his surveyor, and forwarded both ve rsions to Poston by email and first class mail. In the email, Murray to ld Poston that he w ould like to know if Poston no longer had time to deal with the matter because Poston had retired. Poston did not tell Murray he did not have time or th at Murray should find another attorney. ¶7 In January 2006 Murr ay learned that the deadline for filing objections had passed and the Plaintiffs had already filed a motion to have the survey approved and recorded. Murray asked Poston for advice on how to proceed. Poston responded that he did not know a deadline had ever been se t, and that one of the Plain tiffs’ attorneys had agreed to notify Poston of the deadline for objections. Murray told Poston the order setting the deadline had been sent to Poston’s post office box, to which Poston replied that his post office box had been closed for more than a year. ¶8 In his motion for relief, Murra y argued that Poston acted with gross neglect when he disregarded the deadline to file objecti ons to the survey and took no action to determine why he did not r eceive orders from the court or motions from opposing counsel when he knew they had been filed. In fa ct, Poston had changed physical addresses three times since the inception of Murray’s case, the final address after retirement being his home address. Poston kept his post office box for some time during the litigation, but he closed it in 2004. Poston fa iled to notify the cour t or other counsel of his changes of address. Finally, Murray ar gued that with or with out the knowledge of a looming deadline, Poston’s failure to file the objections provided by Murray,5 constituted gross neglect. As a result, Murra y was denied the chance to present his objections to the survey, the survey was approved, and a final judgment was entered. ¶9 The Skogens opposed th e motion for relief. They filed an affidavit of one of their attorneys which asserted that Poston must have been receiving mail sent to him because he responded to the Skogens’ memorandum of costs which was sent to Poston’s post office box on February 13, 2006. It was not until March of 2006 that the Skogens’ attorney received a returned letter and notice from the post office that mail would no longer be forwarded to Poston’s home ad dress. Skogens argued that Poston’s or Murray’s failure to act was not due to excu sable neglect nor abandonment by counsel. They note that Murray knew objections had to be filed, that Murray was in constant touch with Poston, and that Murra y knew how to obtain docu ments from the court file. ¶10 The District Court did not rule on the mo tion within sixty days , thus it was deemed denied pursuant to M. R. Ci v. P. 60(c). Murray appeals. STANDARD OF REVIEW ¶11 The standard of review applied by this Court to a district court’s ruling under M. R. Civ. P. 60(b) depends on whether or not the district court set aside the judgment. Karlen v. Evans , 276 Mont. 181, 185, 915 P.2d 232, 235 (1996). If, as in this case, the district court refused to set as ide the judgment, then only a slight abuse of discretion need be shown to warrant reversal. Karlen , 276 Mont. at 185, 915 P. 2d at 235. A manifest abuse of discretion must be shown in cases where the district court has set aside the judgment and the appealing party request s that the judgment be reinstated. Karlen , 276 Mont. at 185, 915 P.2d at 235.6 DISCUSSION ¶12 ISSUE: Did the District Court abuse its discretion in denying Murray’s motion for relief? ¶13 Under ordinary circumstances, judgments fo rever establishing the respective rights between the parties will not be disturbed. Karlen , 276 Mont. at 184, 915 P.2d at 235. However, M. R. Civ. P. 60 (b) provides an exception. Karlen , 276 Mont. at 184, 915 P.2d at 235. M. R. Civ. P. 60(b) provides: On motion and upon such terms as are ju st, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered eviden ce which by due d iligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denomi nated intrinsic or extrinsic), misrepresentation, or other miscon duct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon wh ich 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 judgment. Relief from final judgments or orders is availa ble pursuant to M. R. Civ. P. 60(b)(6) for situations other than those enumerated in the first five subsections of the rule. Bahm v. Southworth , 2000 MT 244, ¶ 14, 301 Mont. 434, ¶ 14, 10 P.3d 99, ¶ 14. In analyzing cases under M. R. Civ. P. 60(b)(6), this Cour t requires that the movant demonstrate (1) that extraordinary circumstance s exist, including gross neglec t or actual misconduct by an attorney; (2) the movant acted to set aside the judgment with in a reasonable time period; and (3) the movant was blameless. Peak Development, LLP v. Juntunen , 2005 MT 82, ¶ 17, 326 Mont. 409, ¶ 17, 110 P.3d 13, ¶ 17 (citing Bahm , ¶ 14).7 ¶14 In Karlen , we upheld a District Court’s decisi on to set aside an order of dismissal of a case because of gross neglect on the atto rney’s part. In that case, the attorney intentionally misled the Karlen s into believing their case was progressing when in fact it had been dismissed for failure to prosecute. Karlen , 276 Mont. at 184, 915 P.2d at 234- 35. We determined that this gross neglect, discovered thirteen months after the dismissal, justified relief pursuant to M. R. Civ. P. 60(b)(6). Karlen , 276 Mont. at 190, 915 P.2d at 238. Relief from judgment has been granted in cases where an a ttorney’s emotional problems prevented the attorney from adequately defending his client, Ring v. Hoselton , 197 Mont. 414, 643 P.2d 1165 (1982); where an attorney fa iled to prosecute and ignored his client’s numerous inquiries, but assure d the client that the case was proceeding, L. P. Steuart, Inc. v. Matthews , 329 F.2d 234 (C.A.D.C. 1964); and where an attorney appeared in a case without authorization and then abandoned his clients and disappeared, Lords v.
Newman , 212 Mont. 359, 688 P.2d 290 (1984). Conversely, we have upheld a denial of a motion for relief from default ju dgment where an a ttorney let his mail accumulate and failed to respond to a complaint. Griffin v. Scott , 218 Mont. 410, 413, 710 P.2d 1337, 1339 (1985). The client, having failed to check on the progre ss of the suit or inform the attorney that the matter required prom pt attention, was not blameless. Griffin , 218 Mont. at 413, 710 P.2d at 1339. ¶15 In this case, Murray argues that Poston’ s conduct constitutes gross neglect or actual misconduct. Poston failed to notify th e court and other par ties that his address changed three times and that he closed his post office box. According to Murray, Poston failed to investigate why he was not recei ving orders or motions from the court or8 opposing counsel. Skogens argue Poston wa s receiving mail and wa s just ignoring the deadlines. Under either scen ario, Poston demonstrated ne glect in preserving Murray’s objections to the survey. Poston was awar e that deadlines were looming, and when Murray asked Poston about the deadlines, Poston to ld Murray not to worry and assured him that he had an agreement with opposing counse l that the deadline wo uld be extended. Murray was misled by that a ssurance. Finally, Poston was in possession of the objections to the survey a full month befo re the extended dead line and could have filed them at any time. When Murray sp oke to Poston after th e surveys were approved by the court in January 2006, Poston told Mu rray he had been relying on Plaintiffs’ counsel to inform him of the deadlines, rather than obtaining the information himself. We conclude that Poston’s conduct constituted gross neglec t which qualifies as an extraordinary circumstance under M. R. Civ. P. 60(b) ju stifying relief from the order approving the surveys and the supplemental judgment. ¶16 Relying on Lords , 212 Mont. 359, 688 P.2d 290, the Skogens argu e that because Murray’s counsel did not abandon him, Poston’ s conduct does not ri se to the level of neglect. However, total abandonment is not th e standard for gross ne glect, as evidenced by L. P. Steuart, Inc. , 329 F.2d at 235, and Karlen , 276 Mont. at 190, 915 P.2d at 238, where there was gross neglect despite contin ued contact between attorney and client. ¶17 The next question is whether Murray acte d to set aside the judgment within a reasonable time period. Peak Development, LLP , ¶ 17. M. R. Civ. P. 60(b)(1) through (3) require that the motion for relief be made within sixty days after the judgment or order. M. R. Civ. P. 60(b)(6) requires that th e motion be made within a reasonable time.9 In Karlen , we held that thirteen months was a reasonable time based on the time it took for the Karlens to obta in their file from counsel and dete rmine that their case had been dismissed. Karlen , 276 Mont. at 192, 915 P.2d at 239. In Bahm , we held that a fivemonth delay in filing a moti on for relief was not reasonable where the moving party knew of the default judgment within two weeks of its entry and could have filed a motion for relief pursuant to M. R. Civ. P. 60 (b)(1) within the si xty-day time frame. Bahm , ¶ 16. ¶18 Here, when Murray found out that th e surveys were approved before his objections were filed, he imme diately contacted Poston to fi nd out what action he should take. He then obtained new counsel and filed his M. R. Civ. P. 60 (b) motion within sixty days of the court’s January 9, 2006, order granting the Plai ntiffs’ motion to approve the surveys, and within thirty days of the supplem ental judgment filed on February 10, 2006. We hold that the M. R. Civ. P. 60(b) motion for relief was filed within a reasonable time. ¶19 Finally, Murray must demonstrate he was blameless. Peak Development, LLP , ¶ 17. Murray has shown that he was in constant contact w ith Poston regarding filing the objections. Murray hired the independent surv eyor to review the survey and prepare objections, then immediately forwarded th e objections to Poston. Murray relied on Poston’s assurances that Po ston had an agreement in place for an extension of the deadline. The S kogens would place blame on Murray be cause he knew of the deadlines and had continuous contact with Poston, and could have hire d other counsel. However, according to his affidavit, Mu rray was not aware that there was a new deadline for the filing of objections to the survey. Further, where Murray had been represented by Poston throughout this case, and wh ere Poston assured Murray not to worry about the deadlines,10 it would be unreasonable to fault Murray for no t hiring a new attorney to take over his case. Unlike the client in Griffin , 218 Mont. at 413, 710 P.2d at 1339, Murray checked on the progress of his case and made sure his attorney was aware of the original filing deadline. Thus, we conclude th at Murray was not to blame. ¶20 Murray demonstrated that Post on’s conduct constituted gross neglect, that he filed his motion for relief w ithin a reasonable time, and that he was blameless. Thus, we conclude that Murray has met the burden of s howing a slight abuse of discretion in the District Court’s failure to grant his M. R. Civ. P. 60(b) motion fo r relief from the order approving the survey and the supplemental judgment. We reverse and remand for proceedings consistent w ith this opinion.

/S/ W. WILLIAM LEAPHART

We concur: /S/ KARLA M. GRAY /S/ JAMES C. NELSON /S/ JOHN WARNER /S/ JIM RICE