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 

-'." . . -2 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable b, Judge presiding. 

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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 Kimberly Murnion, plaintiffs, filed a motion under 

Rule 60 (b) , M.R.Civ.P., in the District Court of the Thirteenth 

Judicial District, Yellowstone County. The plaintiffst requested 

that the court relieve them of the order granting defendant Heberle 

Ford's motion for summary judgment on the basis of newly discovered 

evidence. The District Court denied plaintiffs' motion and the 

plaintiffs appealed. We affirm. 

On February 5, 1983, Dennis Murnion was riding as a passenger 

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 the truck on December 4, 1982 from Heberle Ford, 

located in Forsyth, Montana. 

Dennis Murnion and his wife, Kimberly Murnion, subsequently 

filed suit on February 4, 1986 against several defendants, 

including Heberle Ford. The Murnions alleged that Heberle Ford 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 a motion for summary judgment against Murnions' 

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 order was 

entered on July 13, 1987 and the notice of entry of judgment was 

served July 14, 1987. 

2 
On August 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 the prior summary judgment order. The motion 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. The notice of entry of judgment for this order was 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 is whether the District Court 

erred in denying Murnionst motion under Rule 60 (b) , M.R. Civ. P., to 

relieve them of the order granting Heberle Ford's motion for 
summary judgment on the basis of newly discovered evidence. 

The law is well 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, the moving 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 : 

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: . . . (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 . . . not more than 60 days after the 

judsment, order or proceedinq was entered or 

taken . . . (Emphasis added.) 

The notice of entry of judgment granting Heberle Ford's motion 

for summary judgment was served to the Murnions on July 14, 1987. 

The Murnions therefore had sixty days to bring 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 limitations expired for filing such a motion. 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 judgment 
because of the Murnions' alleged newly discovered evidence. 

Affirmed. 

We concur: 

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Justices