No. 95-222 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

LORNIE K. MUELLER and ROSE E. MUELLER, 

Petitioners and Respondents, 

v. 

JOHN S. MILLER, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable John Larson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Mark E. Jones, Attorney at Law, Missoula, 

Montana 

For Respondents: 

Nancy K. Moe; Ellingson & Moe, Missoula, Montana 

Harold V. Dye; Dye Law Office, Missoula, Montana 

Filed: 

Submitted on Briefs: August 3, 1995 

Decided: August 22, 1995 
Justice 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 and motion for leave to amend his pleadings. We 

affirm. 

The dispositive issue before us is whether the District Court 

erred in denying Miller's motion for relief from summary judgment. 

Lornie K. Mueller and Rose E. Mueller (Muellers) filed a 

petition for ejectment against appellant Miller and Andrea K. 

Miller (Millers) on December 11, 1991. The petition alleged that 

the parties entered into a contract for the sale and purchase of 

land owned by the 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 on May 28, 1992. He subsequently 

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. 

On August 15, 1994, the Muellers filed a motion for summary 

judgment against Miller. Miller's counsel moved for, and was 

granted, an extension of time to respond. When Miller did not file 

a response, the Muellers filed a notice of issue. The District 

Court granted the Muellers' motion for summary judgment on October 

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5, 1994. The Muellers 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 summary judgment 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. 

The basis of the motion for relief from summary judgment was that 

the Muellers' counsel committed fraud on the court by creating 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. The parties briefed the motion for relief from summary 

judgment and the court held an evidentiary hearing. 

On January 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 amend his 

answer. Miller appeals. 

Did the District Court err in denying Miller's motion 

for relief from summary judgment? 

"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 on the court was timely made. 

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The District Court denied Miller's motion based on extensive 

findings of fact. It is clear from the language of Rule 60(b), 

M.R.Civ.P., that a court's action in granting or denying a party's 

Rule 60(b) motion for relief is discretionary. Thus, we review the 

District Court's denial of Miller's motion for abuse of discretion. 

Steer, Inc. v. Dep't of Revenue (1990), 245 Mont. 470, 803 P.2d 

601. We review findings of fact which form the basis for a court's 

discretionary determination under a three-part clearly erroneous 

test involving, first, whether substantial evidence supports the 

findings being challenged. Tonack v. Montana Bank of Billings 

(1993), 258 Mont. 247, 251, 854 P.2d 326, 329 (citation omitted). 

Miller relies on Meyer v. Lemley (1929), 86 Mont. 83, 282 P. 

268, for the proposition that fraud on the court is committed when 

misconduct is performed by the one in whose favor the judgment is 

rendered. The misconduct he alleges 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 made the following extensive findings of 

fact in this regard, based on the pleadings, exhibits and testimony 

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 

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Miller only. 

Ginnings filed a status report on Miller's behalf on January 

21, 1994. Nancy Moe, Esq. (Moe), having replaced earlier counsel 

for the Muellers, filed a status report on their behalf on the same 

date. Moe filed 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 on both Ginnings and Hussey. 

On June 20, 1994, Moe filed an additional updated status 

report indicating dismissal of the bankruptcy action; she served 

both Ginnings and Hussey on Miller's behalf. The District Court's 

scheduling order, issued June 23, 1994, was served on both Hussey 

and Ginnings as counsel for Miller. 

Moe and Hussey had a telephone conversation on June 28, 1994, 

after which Moe sent letters confirming the conversation to both 

Hussey and Ginnings. On July 8, 1994, Moe wrote to Hussey and 

Ginnings that Hussey had advised he would be representing Miller in 

the action and would be conferring about the proposed scheduling 

order. Hussey signed the stipulated proposed scheduling order on 

Miller's behalf on July 21, 1994. Thereafter, with regard to the 

Muellers' motion for preliminary injunction and other matters, Moe 

served only Hussey as counsel for Miller. 

On August 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 a continuance of the hearing date through telephone calls 

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to the court. Hussey filed a response to the motion for 

preliminary injunction on Miller's behalf on August 11, 1994. 

Moe filed the Muellers' motion for summary judgment on August 

15, 1994, and served it on Hussey as Miller's counsel. Hussey 

filed a motion for extension of time to respond to the motion for 

summary judgment. 

The District Court denied the motion to continue the 

preliminary injunction hearing which Hussey had filed on Miller's 

behalf. Miller appeared personally with Mark E. Jones, Esq. 

(Jones) at the preliminary injunction hearing on August 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 same hearing, Miller referred to 

his "other attorney" as Hussey. The District Court referred to the 

Muellers' pending motion for summary judgment during the 

preliminary injunction hearing. The court issued the preliminary 

injunction during the hearing and also issued its order regarding 

settlement proceedings; the court served Hussey on Miller's behalf. 

Hussey was served 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. The District Court granted summary judgment on the basis of 

Miller's failure to respond. After notice of entry of judgment was 

filed, Jones filed a notice of appearance on Miller's behalf; he 

did not serve Hussey. 

On the basis of these extensive findings, the District Court 

specifically found that Ginnings did not file any pleading, and did 

not actively represent Miller in written pleadings, after January 

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21, 1994. The court also .found that the reason for Ginnings' 

inaction was his belief and understanding that Miller had retained 

Hussey, and later Jones, to represent him. 

The court further found that no testimony established that 

Ginnings would have actively 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 he considered Hussey to be his counsel. 

Finally, the court found that both Hussey's filings and Jones' 

statements at the preliminary injunction hearing negated any notion 

that Ginnings was actively representing Miller at any point past 

June 29, 1994. 

On the 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 summary judgment. As a result, the court concluded that 

the "misrepresentation" element necessary to a fraud claim had not 

been established. 

We note 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 

and that the District Court did not misapprehend the effect of the 

evidence; nor are we left with a conviction that a mistake has been 

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committed. On that basis, therefore, we further conclude that none 

of the court's findings of fact is clearly erroneous. 

Assuming arsuendo that the "misconduct" standard set forth in 

Mever is, as Miller 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 was faced 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, 854 P.2d at 

329. 

Miller also argues that he was prejudiced by Moe's failure to 

properly serve his counsel. We observe at the outset that Miller 

cites to no authority which recognizes this argument as a separate 

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 on a party'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, an attorney representing Miller was served and 

nothing in the rule addresses the point in time at which one 

attorney replaces another for service purposes. 

Miller's reliance on Fonk v. Ulsher (1993), 260 Mont. 379, 860 

P.2d 145, and Shields v. Pirkle Refrigerated Freight Lines, Inc. 

(1979), 181 Mont. 37, 591 P.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 4D is at issue in the present case. 

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We hold that the District Court did not abuse its discretion 

in denying Miller's motion for relief from summary judgment. 

Affirmed. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1988 Internal Operating Rules, this decision shall not be cited as 

precedent and shall be published by its filing as a public document 

with the Clerk of the Supreme Court and by a report of its result 

to Montana Law Week, State Reporter and West Publishing Company. 

We concur: 

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