No. 89-299 IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

DENNIS MURNION and KIMBERLY MURNION, Plaintiffs and Appellants,-vsHEBERLE FORD COMPANY, a Montana business organization, Defendant and Respondent. I!' -7 -'."

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APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable 

### b, Judge presiding. Tu*\\ R\\ae9 COUNSEL OF RECORD: For Appellant: Roy W. Johnson, Stephens Law Firm, Billings,Montana For Respondent: Guy Rogers; Anderson, Brown Law Firm, Billings, Montana

Filed: Submitted on Briefs: Nov. 21, 1989 Decided: Rebruary 5, 1990 

### *Justice Diane G. Barz delivered the Opinion of the Court.

Dennis and KimberlyMurnion, plaintiffs, filed amotion under Rule 60(b)

### , M.R.Civ.P., in the District Court of the Thirteenth Judicial District,Yellowstone County. The plaintiffstrequested that the courtrelieve themof the ordergranting defendant Heberle Ford'smotion for summary judgmenton thebasis of newly discovered evidence. The District Court denied plaintiffs' motion and the plaintiffs appealed. We affirm. On February 5, 1983,DennisMurnion was riding as apassenger in a 1962 truck owned and driven by his brother, Mark Murnion. Dennis was injured when the truck collided with a Burlington Northern train at an interchange under construction on a state highway, approximately fifteen miles north of Colstrip, Montana. Mark had purchased thetruck onDecember 4,1982 fromHeberle Ford, located in Forsyth,Montana. Dennis Murnion and his wife, Kimberly Murnion, subsequently filed suit on February 4, 1986 against several defendants, includingHeberle Ford. TheMurnions alleged that HeberleFord was negligent, careless and reckless in failing to inspect, test and service the brake system of the 1962 truck. On May 15, 1987, Heberle Ford filed amotion for summary judgment againstMurnions' claims. After briefing by the parties, the motion was argued before the District Court. The court subsequently granted Heberle Ford's motion for summary judgment. The summary judgment orderwas entered on July 13, 1987 and the notice of entry of judgment was served July 14, 1987. 2OnAugust 26, 1988,nearly fourteen months after the District Court granted summary judgment in favor of Heberle Ford, the Murnions filed a motion in limine or, alternatively, a motion to reconsider theprior summary judgment order. Themotion in limine requested the court to preclude the defendants from introducing evidence or offering testimony of any kind showing or attempting to show that one of the causal factors in the collision was attributable to a product's failure in connection with the truck's brake system. The Murnions alternative motion to reconsider the prior summary judgment order does not exist as a post-judgment motion under the Montana Rules of Civil Procedure. Murnionsl motion, however, was based upon alleged newly discovered evidence. We will therefore equate Murnions' motion with a motion pursuant to Rule 60(b), M.R.Civ.P., so as to allow it to be properly before this Court. The Murnions offered the affidavit of their expert witness, F. Denman Lee, dated and filed October 17, 1988, as the newly discovered evidence. The District Court denied the Murnionsl motion, stating that the Murnions had not exercised due diligence in presenting the court with their alleged newly discovered evidence. Thenotice of entry of judgment for this orderwas filed April 12, 1989. The Murnions then filed their notice of appeal from this order on April 17, 1989. The sole issue raised on appeal iswhether the District Court erred in denying Murnionstmotion under Rule 60(b)

## ,M.R.Civ.P., to relieve them of the order granting Heberle Ford's motion forsummary judgment on the basis of newly discovered evidence. The law iswell settled regarding a party seeking relief from

a judgment because of newly discovered evidence. Before a court will grant a new trial or relief from a judgment,themoving party must demonstrate reasonable due diligence in procuring the newly discovered evidence within the specified statutory time periods. The pertinent part of Rule 60(b), M.R.Civ.P., for this case provides: Onmotion 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:



# . . . (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) ; 

# . . 

# . The motion shall be made within a reasonable time, and for reasons (I), (2), and (3) when a defendant has been personally served 

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# . . not more than 60 days after the judsment, order or proceedinq was entered or taken 

# . .. (Emphasisadded.) Thenoticeof entry of judgment grantingHeberleFord'smotion for summary judgmentwas served to the Murnions on July 14, 1987. TheMurnions thereforehad sixty days tobring forth their alleged newly discovered evidence and to demonstrate that they exercised reasonable due diligence in procuring this newly discovered evidence. The Murnions, however, did not file their Rule 60(b) motion until August 26, 1988--nearly twelve months after the statute of limitationsexpired for filing suchamotion. In light of the above, the District Court did not err in denying the Murnions' motion under Rule 60(b), M.R.Civ.P., to relieve them of the order granting Heberle Ford's motion for summary judgmentbecause of the Murnions' alleged newly discovered evidence. Affirmed.

We concur:



# &~~,L Justices