NO. 93-250

IN THE SUPREME COURT OF THE STATE OF MONTANA

1993

FRANK R. SHULTZ, JR.,

Plaintiff and Respondent,

-vPATRICK F. HOOKS,

Defendant and Appellant.

APPEAL FROM: District Court of the Eleventh Judicial District,

In and for the County of Flathead

The Honorable Ted 0. Lympus, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

John J. Cavan, Cavan, Smith & Cavan, Billings,

Montana

For Respondent:

James C. Bartlett, Hash, O'Brien & Bartlett,

Kalispell, Montana

Submitted on Briefs: November 5 , 1993

Filed: FE5 01 1994 Decided: February 1 , 1994

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Clerk
Justice Fred J. Weber delivered the Opinion of the Court.

This is an appeal from an order of the District Court of the

Eleventh Judicial District, Flathead County, which granted a

default judgment to plaintiff, awarded compensatory damages in the

amount of $36,857.81, awarded punitive damages in the amount of

$50,001.00 and also awarded costs to plaintiff. We reverse and

remand.

The sole issue for this Court's review is whether Ted 0.

Wmws , the district judge in this case, should have disqualified

himself from presiding over the case.

This is an attorney malpractice action brought by plaintiff

Frank R. Shultz, Jr. (Shultz) against defendant Patrick Hooks

(Hooks) based on Hooks' representation of Shultz. Shultz retained

Hooks to represent him in an action against his father, Frank R.

Shultz, Sr., concerning his guardianship and management of monies

received on behalf of Shultz as a result of a personal injury

settlement when Shultz was a minor.

Shultz filed this malpractice action against Hooks on August

7 , 1992. Hooks was personally served with the summons and

complaint on September 27, 1992. The Flathead County Clerk of

Court entered Hooks' default on October 22, 1992, for failure to

plead or otherwise defend within the time allowed by the Montana

Rules of Civil Procedure.

On December 30, 1992, a statement of damages was mailed to

Hooks. On January 12, 1993, the District Court held a hearing on

the matter and granted Shultz' motion for default judgment. The

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court awarded compensatory damages to plaintiff in the amount of

$36,857.81 and punitive damages in the amount of $50,001.00, based

on Shultz' motion for default judgment which was supported by his

affidavit, testimony and the complaint. The District Court also

awarded costs in the amount of $160.00 to Shultz. Hooks did not

appear.

On March 8, 1993, after three writs of execution were executed

against him, Hooks filed a Motion for Relief from Judgment under

Rule 60(b), M.R.Civ.P., supported by an affidavit signed by his

counsel. Hooks based his motion for relief from the judgment in

part on the court's power to grant such relief for "excusable

neglect" under Rule 60(b)(l), M.R.Civ.P., and in part on his

contention under Rule 60(b)(6), M.R.Civ.P., that Judge Lympus

should have recused himself from this case. The District Court

allowed the 45 days permitted for a ruling on a Rule 60 (b) ,

M.R.Crv.P., motion to expire and the motion was therefore deemed

denied under Rule 60(c), M.R.Civ.P.

In Maulding v. Hardman (1993), 257 Mont. 18, 25, 847 P.Zd 292,

297, we stated:

A party is precluded from relief under subsection (6)

when the facts or circumstances would bring the case

under one of the first five subsections. In that

instance, the party is not entitled to relief under

subsection (6) based on the same facts or circumstances.

Here, however, the fact that Hardman requested relief

under subsections (1) and (3) and also under subsection

(6) is not fatal. Our recent opinion in Koch v. Billings

School Dist. No. 2 (1992), 253 Mont. 261, 833 P.2d 181,

. . . where we said that the plaintiff should have chosen

between subsection (5) and (6) because they are mutually

exclusive, illustrates this. The plaintiff's failure to

make this choice did not prevent the District Court or

this Court from determining which subsection was proper.

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We conclude that in this case Hardman's motion should

have been based on subsection (6), and we will analyze it

under that subsection alone.

Here, too, we decline to address the appeal in relation to the

court's ruling on "excusable neglect" and base our decision to

reverse the District Court on Rule 60(b)(6), 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 a party's legal representative from a

final judgment, order, or proceeding for the following

reasons: 11) mistake, inadvertence, surprise, or

excusable neglect: . . . or (6) any other reason

iustifvinq relief from the ooeration of the judqment.

(Emphasis supplied.)

In the affidavit in support of Hooks' motion for relief from

judgment, Hooks' counsel presented the argument that Judge Lympus

could not preside over this malpractice action against Hooks

because Judge Lympus had himself represented Shultz concerning the

same matter on which the malpractice action was founded.

Judge Lympus represented Shultz as an attorney beginning in

July of 1976, throughout part of 1977 and ended this representation

sometime prior to December of 1979, when Shultz retained Hooks.

During the time Judge Lympus represented Shultz, he attempted to

locate information concerning Frank R. Shultz, Sr.'s guardianship

of plaintiff and information on an accounting relating to that

guardianship. Hooks subsequently represented Shultz in that same

matter and that is the substance of the malpractice charges against

Hooks.

We conclude that Judge Lympus was required to disqualify

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himself from presiding over this malpractice action, according to

§ 3-l-803, MCA, which provides in pertinent part:

3-l-803. Disqualification of judges -- all courts.

DISQUALIFICATION OF JUDGES

This section shall, in its application, apply to all

courts listed in section 3-l-101 except a court of

impeachment in the state senate.

Any justice, judge, justice of the peace, municipal

court judge or city court judge must not sit or act in

any action or proceeding:

. . .

3 . When he has been attorney or counsel in the

action or proceeding for any party . . . .

The malpractice action here is a direct result of Hooks'

representation of Shultz in the action for a guardianship

accounting--an action in which Judge Lympus also represented

Shultz. Although we conclude that Judge Lympus was required by §

3-l-803, MCA, to disqualify himself from presiding over the

subsequent malpractice action against Hooks, we emphasize that

there is absolutely nothing in the record to indicate any

wrongdoing or unethical conduct on the part of Judge Lympus. Judge

Lympus represented Shultz for a short period of time beginning

nearly eighteen years ago and his representation did not progress

to the point of filing an action against Shultz' guardian, but

rather, merely involved preliminary investigation.

A judge is not prevented from presiding over matters which

involve his or her prior clients if the action involves another

matter. Although this malpractice action is technically a separate

action from the underlying suit against Shultz' father relating to

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the guardianship, it arises from the legal representation in that

lawsuit, albeit the representation by Hooks and not that of Judge

LymPUS.

We hold the District Court erred in not disqualifying himself

in this case.

Reversed and remanded for substitution of another judge to

rule on the merits of Hooks' Motion for Relief from Judgment and

redetermine damages if that motion is again denied.-

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Chief Justice

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