No. 95-222 IN THESUPREME

COURTOFTHESTATEOFMONTANA 1995

LORNIEK. MUELLERand ROSEE. MUELLER,

Petitioners and Respondents,

v. JOHNS. MILLER,

Respondent andAppellant.

APPEALFROM: District Court of the Fourth Judicial District,

In andfor the County of Missoula, TheHonorable John Larson, Judge presiding.

COUNSELOFRECORD:

For Appellant: Mark E. Jones, Attorney at Law, Missoula, Montana

For Respondents: Nancy K. Moe; Ellingson &Moe, Missoula, Montana Harold V. Dye; DyeLawOffice, Missoula, Montana

Filed: Submitted onBriefs: August 3, 1995 Decided: August 22, 1995Justice Karla M. Gray delivered the Opinion of the Court.

John S. Miller (Miller) appeals from the findings of fact, conclusions of law and order entered by the Fourth Judicial District Court, Missoula County, denying his combined Rule 60(b) motion for relief andmotion for leave to amendhis pleadings. We affirm.Thedispositive issue before us is whether the District Court erred in denying Miller's motion for relief from summaryjudgment. Lornie K. Mueller and Rose E. Mueller (Muellers) filed a petition for ejectment against appellant Miller and Andrea K. Miller (Millers) onDecember 11, 1991. Thepetition alleged that the parties entered into acontract for the sale and purchase of land ownedbythe Muellers; that the Millers took possession and, thereafter, failed to comply with the terms of the contract; that the Muellers properly demanded possession; and that the Millers failed to give possession of the property to the Muellers. The Muellers subsequently amended their petition to add claims for unlawful detainer, holdover and injunctive relief. Miller answered the petition onMay28, 1992. Hesubsequently filed a bankruptcy petition; his bankruptcy proceeding was dismissed in 1994. The Muellers and Andrea Miller filed a stipulation for confession of judgment against Andrea Miller. OnAugust 15, 1994, the Muellers filed amotion for summary judgment against Miller. Miller's counsel moved for, and was granted, anextension of time to respond. WhenMiller did not file

a response, the Muellers filed anotice of issue. The District Court granted the Muellers' motion for summaryjudgment onOctober

25, 1994. TheMuellers filed.and served notice of entry of judgment

on October 25, 1994. The Muellers had filed a motion for preliminary injunction just prior to their summaryjudgment motion, Miller had responded, a hearing was held at which Miller and his counsel appeared, and the court had issued the preliminary injunction. On November 17, 1994, Miller filed a combined motion for relief from summary judgment and motion to file amended answer. Thebasis of the motion for relief from summaryjudgment wasthat the Muellers' counsel committed fraud onthe court bycreating the illusion that Miller's counsel was served with the motion for summary judgment when, in fact, he was not served; Miller also alleged that the failure to serve Miller's counsel prejudiced Miller. Theparties briefed the motion for relief from summary judgment andthe court held anevidentiary hearing. OnJanuary 3, 1995, the District Court filed its extensive findings of fact, conclusions of law and order denying Miller's motion for relief from summary judgment and motion to amendhis

answer. Miller appeals. Did the District Court err in denying Miller's motion for relief from summaryjudgment? "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

. . . (3) fraud[. I” Rule 60(b), M.R.Civ.P. Motions for relief from judgment based on fraud generally must be made within 60 days of notice of entry of judgment. Rule 60(b), M.R.Civ.P. Here, Miller's motion for relief from judgment alleging fraud onthe court wastimely made.

3The District Court denied Miller's motion based onextensive

findings of fact. It is clear from the language of Rule 60(b), M.R.Civ.P., that acourt's action in granting or denying a party's Rule 60(b) motion for relief is discretionary. Thus, wereview the District Court's denial of Miller's motion for abuseof discretion. Steer, Inc. v. Dep't of Revenue (1990), 245 Mont. 470, 803 P.2d 601. Wereview findings of fact which form the basis for acourt's discretionary determination under athree-part clearly erroneous test involving, first, whether substantial evidence supports the findings being challenged. Tonack v. Montana Bank of Billings (1993), 258Mont. 247, 251, 854 P.2d 326, 329 (citation omitted). Miller relies onMeyer v. Lemley (1929), 86Mont. 83, 282 P. 268, for the proposition that fraud onthe court is committed when misconduct is performed bythe one in whose favor the judgment is rendered. Themisconduct healleges is that the Muellers' counsel intentionally failed to serve his counsel, Laurence Ginnings, Esq. (Ginnings) , with the motion for summary judgment; created the impression that proper service had been made by serving other counsel; and, as a result, obtained summary judgment for the Muellers without giving him an opportunity to establish that genuine issues of material fact existed which precluded summary judgment. The District Court madethe following extensive findings of fact in this regard, basedonthe pleadings, exhibits andtestimony before it. The Muellers filed a petition for ejectment against appellant Miller and Andrea K. Miller in December of 1991. Ginnings was personally served as counsel for the Millers. Ginnings subsequently filed a notice of appearance on behalf of 4Miller only.

Ginnings filed astatus report onMiller's behalf onJanuary

21, 1994. Nancy Moe, Esq. (Moe), having replaced earlier counsel for the Muellers, filed astatus report ontheir behalf onthe same date. Moefiled an updated status report on February 17, 1994, concerning Miller's pending bankruptcy action; the status report reflected Moe's understanding that Bruce Hussey, Esq. (Hussey) was representing Miller in the bankruptcy action. Moe served the updated status report onboth Ginnings andHussey. OnJune 20, 1994, Moe filed an additional updated status report indicating dismissal of the bankruptcy action; she served both Ginnings andHussey onMiller's behalf. TheDistrict Court's scheduling order, issued June 23, 1994, was served onboth Hussey andGinnings ascounsel for Miller. MoeandHussey hadatelephone conversation onJune 28, 1994, after which Moesent letters confirming the conversation to both Hussey and Ginnings. OnJuly 8, 1994, Moewrote to Hussey and Ginnings that Hussey hadadvised hewould berepresenting Miller in the action and would be conferring about the proposed scheduling order. Hussey signed the stipulated proposed scheduling order on Miller's behalf onJuly 21, 1994. Thereafter, with regard to the Muellers' motion for preliminary injunction andother matters, Moe served only Hussey as counsel for Miller. OnAugust 10, 1994, Hussey filed a motion to continue on Miller's behalf with regard to a hearing on the Muellers' preliminary injunction motion. Notes in the court's file by a clerk and judicial aide reflect Hussey's active involvement in seeking acontinuance of the hearing date through telephone calls 5to the court. Hussey filed a response to the motion for

preliminary injunction onMiller's behalf onAugust 11, 1994. Moefiled the Muellers' motion for summaryjudgment onAugust 15, 1994, and served it on Hussey as Miller's counsel. Hussey filed amotion for extension of time to respond to the motion for summaryjudgment. The District Court denied the motion to continue the preliminary injunction hearing which Hussey had filed onMiller's behalf. Miller appeared personally with Mark E. Jones, Esq. (Jones) at the preliminary injunction hearing onAugust 19, 1994; Jones indicated he was appearing for Hussey. Throughout that hearing, Jones' arguments were interspersed with references to "my client" and "our client." At the samehearing, Miller referred to his "other attorney" asHussey. TheDistrict Court referred to the Muellers' pending motion for summary judgment during the preliminary injunction hearing. Thecourt issued the preliminary injunction during the hearing andalso issued its order regarding settlement proceedings; the court served Hussey onMiller's behalf. Husseywasserved with the Muellers' notice of issue regarding the motion for summary judgment after Hussey failed to respond within the time granted in response to his motion for extension of time. TheDistrict Court granted summaryjudgment onthe basis of Miller's failure to respond. After notice of entry of judgment was filed, Jones filed anotice of appearance on Miller's behalf; he did not serve Hussey. Onthe basis of these extensive findings, the District Court specifically found that Ginnings did not file anypleading, anddid not actively represent Miller in written pleadings, after January 621, 1994. The court also .found that the reason for Ginnings'

inaction washis belief andunderstanding that Miller hadretained Hussey, and later Jones, to represent him. The court further found that no testimony established that Ginnings would haveactively participated in opposing the Muellers' motion for summary judgment, and that Miller's own actions in having Hussey seek a continuance of the preliminary injunction hearing and additional time for briefing the motion for summary judgment demonstrated that heconsidered Hussey to behis counsel. Finally, the court found that both Hussey's filings and Jones' statements at the preliminary injunction hearing negated anynotion that Ginnings was actively representing Miller at any point past June 29, 1994. Onthe basis of these extensive findings of fact, the District Court ultimately found that Moe had not misrepresented--either actively or constructively--any matter with regard to the Muellers' motion for summaryjudgment. Asaresult, the court concluded that the "misrepresentation" element necessary to afraud claim hadnot been established. Wenote that, with the exception of several technical and nonsubstantive differences between certain of the District Court's findings and the testimony, Miller does not contend that any of these extensive findings of fact are unsupported by substantial evidence; nor does our review of the record disclose a lack of substantial evidence in support of any of the findings. Thus, we conclude that the findings are supported by substantial evidence andthat the District Court did not misapprehend the effect of the evidence; nor are weleft with aconviction that amistake hasbeen 7committed. Onthat basis, therefore, wefurther conclude that none

of the court's findings of fact is clearly erroneous. Assuming arsuendo that the "misconduct" standard set forth in Mever is, asMiller asserts, the appropriate standard for fraud on the court under Rule 60(b), M.R.Civ.P., it is clear that Miller failed to establish any misconduct or fraud by Moe. While the court wasfaced with conflicting testimony with regard to certain of the nonrecord conversations, it is within the province of the finder of fact to determine the credibility of witnesses and to weigh--and resolve conflicts in--the evidence, Tonack, 854P.2d at 329. Miller also argues that hewasprejudiced byMoe's failure to properly serve his counsel. Weobserve at the outset that Miller cites to noauthority which recognizes this argument asaseparate basis for relief from judgment under Rule 60(b), M.R.Civ.P. In Phennicie v. Phennicie (1979), 185 Mont. 120, 604 P.2d 787, for example, the issue of improper service onaparty's attorney under Rule 5(b), M.R.Civ.P., was raised in the context of a direct appeal. In any event, Miller's Rule 5(b) argument is unavailing here; in this case, anattorney representing Miller wasserved and nothing in the rule addresses the point in time at which one attorney replaces another for service purposes. Miller's reliance onFonkv. Ulsher (1993), 260Mont. 379, 860 P.2d 145, and Shields v. Pirkle Refrigerated Freight Lines, Inc. (1979), 181Mont. 37, 591P.2d 1120, also is misplaced. Both cases addressed the issue of the validity of initial service of process under Rule 4D, M.R.Civ.P. Neither the validity of initial service

nor Rule 4Dis at issue in the present case. 8Wehold that the District Court did not abuse its discretion

in denying Miller's motion for relief from summaryjudgment. Affirmed. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1988 Internal Operating Rules, this decision shall not becited as precedent andshall bepublished byits filing asapublic document with the Clerk of the SupremeCourt andby areport of its result to Montana LawWeek, State Reporter andWest Publishing Company.

Weconcur:

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