file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-366%20Opinion.htm
No. 00-366
IN THE SUPREME COURT OF THE STATE OF MONTANA
2001 MT 29
RONALD MURI,
Plaintiff and Respondent
v.
GEORGE FRANK and JUDY FRANK;
TRIANGLE MANAGEMENT CORPORATION;
and CORNER POCKETS OF AMERICA, INC.,
a Montana Corporation,
Defendants and Appellants.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Diane G. Barz, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Rodd A. Hamman, Calton, Hamman & Wolff, P.C., Billings, Montana
For Respondent:
Jon E. Doak, Doak & Associates, P.C., Billings, Montana
Submitted on Briefs: September 21, 2000
Decided: February 15, 2001
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-366%20Opinion.htm (1 of 5)3/27/2007 11:03:43 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-366%20Opinion.htm
Filed:
__________________________________________
Clerk
Justice Jim Regnier delivered the Opinion of the Court.
¶1 George and Judy Frank, et al., (hereinafter "Franks") appeal from an order of the
Thirteenth Judicial District Court, Yellowstone County, denying their motion for relief
from the court's Amended Judgment. The Franks contend that the District Court abused its
discretion by denying their motion. We reverse and remand.
BACKGROUND
¶2 On January 29, 1998, Ronald Muri filed a complaint against the Franks seeking an
order quieting title to a perpetual exclusive parking easement that he claimed he held on
property owned by the Franks. Muri owns and operates the Billings Athletic Club, which
is located on Lots 5-8, Block 1, of the McCallie Subdivision in Billings, Montana. The
Franks own Lots 1-4, Block 1, of the McCallie Subdivision. Muri claimed that he held a
perpetual exclusive parking easement on "Lot 4 and the westerly 10 feet of Lot 3." The
parking easement was created by warranty deed dated March 5, 1980, and described the
easement as "an easement for parking on Lot 4 and the westerly ten (10) feet of Lot 3,
Block 1 of McCallie Subdivision."
¶3 The District Court held a bench trial on September 20, 1999. The court issued findings
of fact and conclusions of law on January 11, 2000. In its findings of fact, the court
observed that the parties to the warranty deed in which the parking easement was created
drafted numerous agreements leading up to the warranty deed which were the source of a
mutual mistake in the description of the easement. The court also noted that George Frank
testified that the parties intended to grant a seventy-five foot wide easement located solely
on Lot 4. In its conclusions of law, the court concluded, "The parties clearly intended to
create an easement seventy-five feet in width over Lot 4, Block 1 of McCallie
Subdivision, and therefore, the easement for the Westerly ten (10) feet of Lot 3, Block 1 of
McCallie Subdivision is extinguished."
¶4 On January 21, 2000, Muri filed a motion requesting modification or clarification of the
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-366%20Opinion.htm (2 of 5)3/27/2007 11:03:43 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-366%20Opinion.htm
District Court's judgment. Muri contended that the court failed to address his motion to
quiet title to an easement for utilities and access over the 10 feet of vacated alley adjacent
to Lots 3 and 4, failed to address his easement over the southerly ten feet of this same
alley, and failed to address the Franks' installation of a sign on Lot 4. On February 9,
2000, the court amended its findings of fact and conclusions of law, granting Muri's
motion to affirm his easement over the southerly ten feet of the vacated alley and
affirming Muri's ownership of the northerly ten feet of the alley. The court denied Muri's
motion to require the Franks to remove a sign placed on the northwest corner of Lot 4.
¶5 On February 17, 2000, the court issued an Amended Judgment noting the amendments
to its findings of fact and conclusions of law. Significantly, the court also changed the
description of Muri's parking easement to include the westerly ten feet of Lot 3-the same
westerly ten feet for which it had previously ruled that Muri did not have a valid claim.
This change was not requested by either party nor did the court inform the parties that it
intended to change the description of Muri's easement. The Franks served Muri by mail
with Notice of Entry of Amended Judgment on February 23, 2000.
¶6 On April 10, 2000, the Franks served Muri by mail with a motion entitled Motion for
Relief from Judgment Rule 60, M.R.Civ.P. The motion was filed with the court along with
a brief in support on April 21, 2000. The Franks observed that the court had extinguished
Muri's parking easement to the westerly ten feet of Lot 3 in its initial findings of fact and
conclusions of law, but had included the westerly ten feet of Lot 3 in its description of
Muri's parking easement in its Amended Judgment, despite the fact that Muri had not
requested that the court reconsider its decision extinguishing that portion of Muri's
easement. The Franks hypothesized that the court had mistakenly perpetuated the error
contained in the warranty deed. The court denied the Franks' motion without explanation
on April 20, 2000. The Franks appeal.
STANDARD OF REVIEW
¶7 We review a district court's discretionary rulings to determine whether the court abused
its discretion. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474, 803 P.2d
601, 603-04.
DISCUSSION
¶8 Whether the District Court abused its discretion when it denied the Franks' motion for
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-366%20Opinion.htm (3 of 5)3/27/2007 11:03:43 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-366%20Opinion.htm
relief?
¶9 The Franks contend that it was an abuse of discretion for the District Court to refuse to
delete the "westerly ten feet of Lot 3" from its description of Muri's parking easement in
its Amended Judgment. The Franks note that the court's initial findings of fact and
conclusions of law limited Muri's parking easement to Lot 4 and expressly extinguished
Muri's claim to the westerly ten feet of Lot 3. The Franks also note that Muri did not
request that the court reconsider this ruling in his motion for modification or clarification
of the court's judgment. The Franks argue that the District Court appears to have made a
clerical mistake in its Amended Judgment and abused its discretion pursuant to Rule 60(a),
M.R.Civ. P., when it refused to correct that mistake. The Franks maintain that if the court
intended to change the description of Muri's easement in its Amended Judgment, it was
without authority to do so because there was no motion before the court requesting such a
change.
¶10 Muri responds that the Franks' motion for relief was untimely. Muri argues that once
the time for filing of a notice of appeal from the Amended Judgment elapsed, the District
Court no longer had the authority to modify or amend its judgment. Muri observes that
pursuant to Rule 5(a)(1), M.R.App.P., a notice of appeal must be filed within thirty days
of service of notice of entry of judgment. Muri notes that the Franks' motion for relief was
filed well after the thirty day time period for an appeal had passed.
¶11 Rule 60(a), M.R.Civ.P., provides:
Clerical mistakes in judgments, orders or other parts of the record, and in pleadings,
and errors therein arising from oversight or omission may be corrected by the court
at any time of its own initiative or on the motion of any party and after such notice,
if any, as the court orders.
¶12 The central issue of this case is whether the District Court's addition of the "westerly
10 feet of Lot 3" to its description of Muri's parking easement in its Amended Judgment
was a "clerical mistake." Montana's Rule 60(a) is modeled on Rule 60(a) of the Federal
Rules of Civil Procedure; thus, we look to interpretation of the Federal Rules for guidance.
See Mohl v. Johnson (1996), 275 Mont. 167, 171, 911 P.2d 217, 220 (interpreting Rule 19,
M.R.Civ.P.). Clerical mistakes and errors are those errors which misrepresent the court's
original intention. See generally 12 Moore's Federal Practice § 60.11(3) (3d ed. 1997);
see also In re Craddock (10th Cir. 1998), 149 F.3d 1249, 1254 n.4; Blanton v. Anzalone
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-366%20Opinion.htm (4 of 5)3/27/2007 11:03:43 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-366%20Opinion.htm
(9th Cir. 1987), 813 F.2d 1574, 1577 n.2.
¶13 The court's addition of the "westerly 10 feet of Lot 3" to its description of Muri's
parking easement was clearly a mistake which misrepresented the court's original
intention. The District Court expressly stated in its findings of fact and conclusions of law
that it was limiting Muri's parking easement to Lot 4 and denying his claim to an easement
over the westerly ten feet of Lot 3. The court also stated its legal and factual justifications
for doing so, noting that "[t]he parties clearly intended to create an easement seventy-five
feet in width over Lot 4, Block 1 of the McCallie Subdivision, and therefore, the easement
for the Westerly ten (10) feet of Lot 3, Block 1 of the McCallie Subdivision is
extinguished."
¶14 Muri contends that the Franks' motion for relief from judgment was untimely because
it was filed after the time for filing of a notice of appeal from the Amended Judgment had
elapsed. As is clear from the language of the rule itself, however, a court may correct a
clerical mistake "at any time." "So long as there is no currently-pending appeal, this may
be taken quite literally." 12 Moore's Federal Practice § 60.12(1)(a). Therefore, we
conclude that the District Court retained jurisdiction pursuant to Rule 60(a) to correct
clerical mistakes and errors in its Amended Judgment.
¶15 On the record before us we conclude that the District Court abused its discretion in
denying the Franks' motion for relief under Rule 60(a), M.R.Civ.P. This matter is reversed
and remanded to the District Court for further proceedings consistent with this opinion.
/S/ JIM REGNIER
We Concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ TERRY N. TRIEWEILER
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-366%20Opinion.htm (5 of 5)3/27/2007 11:03:43 AM