NO. 90-348
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
DAN J. DONOVAN and DEBORAH H. FOREMAN,
husband and wife,
Plaintiffs and Appellants,
-v-
GERRY GRAFF,
Defendant and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Russell K. Fillner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Dan J. Donovan, Deborah H. Foreman, Denver, Colorado
(pro se)
For Respondent:
K. D. Peterson; Peterson, Schofield & Leckie;
Billings, Montana
Submitted on Briefs: February 28, 1991
Decided: March 28, 1991
Filed:
Justice R. C. McDonough delivered the Opinion of the Court.
The plaintiffs Dan J. Donovan and Deborah H. Foreman appeal
the order of the Montana Thirteenth Judicial District Court,
Yellowstone County, denying their motions for relief from judgment
under Rule 60 (b) (1) M.R.Civ.P. and for reconsideration of their
motion for summary judgment. The sole issue for review on this
appeal is whether the District Court erred in denying these
motions. We affirm.
Due to the nature of the motions at issue in this appeal, it
is unnecessary for us to present an extensive recitation of the
facts and procedural history of plaintiffs1 underlying case.
Donovan and Foreman filed a lawsuit against Graff for negligence
based on the Montana Scaffolding Act, 5 50-77-101, MCA, and a claim
for loss of consortium. The plaintiff's filed their motion for
summary judgment and brief in support thereof on the issue of
liability on August 28, 1989, but did not file other supporting
documents. Defendants filed their motion for summary judgment and
all necessary supporting documents on September 1, 1989. The
District Court filed its order and memorandum granting defendant's
motion and denying plaintiffs1 motion on December 18, 1989, and
notice of entry of the judgment was filed on January 11, 1990.
In its memorandum the court noted that the plaintiff Is did not
file any documents to support the factual basis of their motion.
Rather, the plaintiffs cited in their supporting brief the
transcript of an earlier case in the Thirteenth Judicial District
[Yellowstone County, DV 85-4051 arising out of a contract between
the parties. The court noted:
It is important to note that the plaintiffs1 other
contentions .
. . are not supported by evidence which
this court may consider under Rule 4, Uniform District
Court Rules. The plaintiffs' contentions are made from
an earlier action between the parties for breach of
contract (DV 85-405), and from depositions associated
with that case. These contentions have been made without
filing a copy of the transcript or deposition with this
Court. Rule 4 states:
"When any motion is filed making reference to
discovery, the party filing the motion shall submit
the relevant unfiled document^.^^
Therefore, given the evidence presented which this
Court may consider for summary judgment purposes, the
plaintiffs have not met their burden of coming forward
with evidence to raise a genuine issue of material fact.
. . .
Donovan and Foreman did not appeal the December 18, 1989 order
granting the defendant summary judgment within the 30 day time
period from the notice of entry of judgment as required by Rule 5
On March 14, 1990 Donovan and Foreman filed a timely motion
for relief from judgment pursuant to Rule 60(b)(1) M.R.Civ.P. in
conjunction with a motion for reconsideration of their earlier
motion for summary judgment. The District Court denied these
motions in an order dated April 30, 1990. The plaintiffs filed
their notice of appeal of this order on May 30, 1990.
Donovan and Foreman's motion for relief from judgment is based
on Rule 60(b)(1) 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 his legal representative from a final
judgment, order, or proceeding forthe following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect
. . . . A motion under this subdivision (b) does not
affect the finality of a judgment or suspend its
operation. This rule does not limit the power of a court
to entertain an independent action to relieve a party
from a judgment, order, or proceeding, or to grant relief
to a defendant not actually personally notified as may
be required by law, or to set aside a judgment for fraud
upon the court.
Defendant Graff argues that Donovan and Foreman are simply
attempting to extend the time for appeal with a Rule 60(b) motion
attacking the District Court's grounds for granting summary
judgment. Graff also contends that Donovan and Foreman are not
entitled to relief on the grounds of mistake under Rule 60(b) (1)
because they simply made a mistake in understanding the law
regarding filing papers in support of a motion for summary
judgment .
We agree. Donovan and Foreman devoted the majority of their
initial brief to arguing the merits of the court's grant of summary
judgment to the defendant. They do not even discuss the grounds
for relief under Rule 60(b) until their reply brief. While an
order denying a motion under Rule 60 (b) is final and appealable,
the appeal from such denial brings up for review only the order of
the denial itself and not the underlying judgment. 11 Wright and
Miller, Federal Practice and Procedure, 2871, pp. 258-59, 7
Moore's Federal Practice, 5 60.30 [3], pp. 60-344, 60-345.
Furthermore, we note that part of Donovan and Foreman's motion is
entitled "reconsideration of plaintiffs1 motion for summary
judgmentl1. Reconsideration of an earlier motion on its merits
cannot be the subject of a Rule 60(b) motion. Because Donovan and
Foreman failed to raise the merits of the grant of summary judgment
with a timely appeal or request for reconsideration under Rule 59,
we are precluded from reviewing these matters.
In this case, the possible error that might constitute the
grounds for the Rule 60(b) motion can be charged to either Donovan
and Foreman for failing to file the transcripts from the earlier
action in support of their motion for summary judgment, or to the
District Court for failing to take judicial notice of the
transcripts pursuant to Rule 202 M.R.Evid. Regarding the latter
ground, we note that when Donovan and Foreman filed their motion
for summary judgment on August 28, 1989 they did not specifically
request the court to take judicial notice of the transcript; in
fact, they failed to do so until they filed their Rule 60(b) motion
on March 14, 1990.
First, we consider the argument that Donovan and Foreman's
failure to file the transcript from the earlier case constitutes
mistake, inadvertence, surprise, or excusable neglect under the
rule. In their brief supporting their Rule 60(b) motion Donovan
and Foreman argue that their failure to file the transcripts was
the result of mistake or inadvertence. Donovan and Foreman argued
to the District Court that because the transcript was already on
file they
mistakenly believed that the District Court would take
judicial notice thereof to decide the parties1 Motions
for Summary Judgment, pursuant to Montana Rules of
evidence, Rule 202(c). For that reason, and in the
interest of record-keepinq economy at the District Court,
plaintiffs mistakenly believed that the Court would not
require an additional copy of the two (2) volumes of
trial transcript in cause no. DV 85-405 to be filed in
cause no. 87-1522. Plaintiffs therefore inadvertently
failed to file a separate copy of the 402 pages of trial
transcript.
Based on this argument, Donovan and Foreman cannot claim that their
failure to file the transcript was llinadvertentll the result of
or
llneglect.gl Rather this argument reveals that they simply were
mistaken in believing that the District Court would take judicial
notice of the record from the earlier case. It is well settled
that there is no ground for a Rule 60(b) motion where the mistake
is purely a mistake of law, as ignorance of the law is no excuse.
Rieckhoff v. Woodhall (1937), 106 Mont. 22, 30, 75 P.2d 56, 58;
Mantle v. Casey (1904), 31 Mont. 408, 416, 78 P. 591, 594; 7
Moore's Federal Practice, 560.22 [2], p. 60-179. The District
Court correctly denied their Rule 60(b) motion on this ground.
In their reply brief on appeal Donovan and Foreman contend
that the court erred in denying their Rule 60(b) motion because the
court itself made a judicial mistake in failing to take judicial
notice of the transcript from the earlier case. As noted earlier,
Donovan and Foreman did not request the court to take judicial
notice of the transcript; they failed to do so until they filed
their Rule 60(b) motion on March 14, 1990. Moreover, while the
authorities are uncertain as to when a Rule 60(b) motion may be
made based on a judicial mistake rather than a mistake by a party,
they are in agreement as to when such a motion should be filed in
order to be timely. If the alleged error involves a fundamental
misconception of the law by the court and the motion is not made
until after the time for appeal has run then relief should be
denied. 11 Wright and Miller, Federal Practice and Procedure, 9
2858, pp. 176-80; see also 7 Moore's Federal Practice, 5 60.22 [3],
pp. 60-185, 60-186; Note, Federal Rule 60(b) : Finality of Civil
Judgments v. Self-correction by District Court of Judicial Error
of Law (1967), 43 Notre Dame Lawyer 98. This is consistent with
the rule that a Rule 60(b) motion may not be used as a substitute
for appeal. 7 Moore's Federal Practice 5 60.18 [8] p. 60-140;
McCarthy v. Mayo (9th Cir. 1987), 827 F.2d 1310, 1318; Sheridan v.
Martinson (1974), 164 Mont. 383, 387, 523 P.2d 1392, 1394. In
light of these comments and the position taken by the majority of
jurisdictions, Donovan and Foreman are precluded from alleging
judicial mistake as a ground for their Rule 60(b) motion.
The order of the District Court is
AFFIRMED.
We Concur: 1