No. 05-462
IN THE SUPREME COURT OF THE STATE OF MONTANA
2006 MT 74N
THEODORE FRANCIS RAYMOND,
Defendant and Appellant,
v.
BARBARA LYNN RAYMOND HULL,
Plaintiff and Respondent.
APPEAL FROM: The District Court of the Twentieth Judicial District,
In and For the County of Lake, Cause No. DV 03-039,
Honorable Deborah Kim Christopher, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Theodore F. Raymond, pro se, Pocatello, Idaho
For Respondent:
John A. Mercer, Turnage & Mercer, PLLP, Polson, Montana
Submitted on Briefs: March 8, 2006
Decided: April 18, 2006
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be cited
as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and
its case title, Supreme Court cause number and disposition shall be included in this Court’s
quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 Theodore Raymond (Ted) appeals, pro se, from a partition order entered by the
District Court for the Twentieth Judicial District, Lake County. We affirm.
¶3 We address the following issues on appeal:
¶4 1. Whether Ted’s motion under Rule 59, M.R.Civ.P., was timely filed.
¶5 2. Whether the District Court abused its discretion when it denied Ted’s motion under
Rule 60(b), M.R.Civ.P.
FACTUAL AND PROCEDURAL BACKGROUND
¶6 Barbara Raymond Hull (Barbara) brought this action in the District Court to partition
real property owned in common with her brother Ted and their other siblings, Kathleen
Raymond Taylor and Douglas Raymond. The property is an unimproved 20-acre parcel
located on the Jocko River east of Arlee, Montana in Lake County.
¶7 The parties, together with another sister, Aileen Raymond Miller (Aileen), inherited
80 acres from their father. The other 60 acres were sold over the years and Aileen transferred
her interest in the remaining 20 acres to Barbara. Consequently, Barbara owns a 2/5 interest
in the parcel and each of the other parties owns a 1/5 interest. Only Ted objected to
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Barbara’s request to partition.
¶8 After a hearing, the District Court determined that the property was proper for
partition and that each party should appoint a Referee to aid in the partitioning of the
property and that those two Referees should, in turn, appoint a third. The Referees
subsequently filed a report with the District Court recommending how the property should be
partitioned and, on April 7, 2005, the court signed an Order adopting the Referees’ report and
ordering partition.
¶9 Thereafter, Ted filed several pro se motions with the District Court including motions
for continuance, to alter or amend the judgment and for a new trial, all of which the court
denied. Ted now appeals the District Court’s Orders denying his Motion to Alter or Amend
the Judgment and his Motion for a New Trial.
¶10 We have determined to decide this case pursuant to Section 1, Paragraph 3(d) of our
1996 Internal Operating Rules, as amended in 2003, which provides for memorandum
opinions
ISSUE 1
¶11 Whether Ted’s motion under Rule 59, M.R.Civ.P., was timely filed.
¶12 Rule 59(b), M.R.Civ.P, provides that a “motion for a new trial shall be served not later
than 10 days after service of notice of the entry of the judgment.” The Notice of Entry of
Order of Partition of Real Property was filed on April 11, 2005. Ted’s Motion for a New
Trial was not filed until May 16, 2005, more than 30 days later. Consequently, Ted’s motion
was untimely pursuant to Rule 59(b), M.R.Civ.P.
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ISSUE 2
¶13 Whether the District Court abused its discretion when it denied Ted’s motion under
Rule 60(b), M.R.Civ.P.
¶14 This Court’s standard of review of a trial court’s refusal to set aside a judgment on a
Rule 60(b) motion is whether the District Court abused its discretion, even slightly. In re
Marriage of Zacher, 2004 MT 249, ¶ 7, 323 Mont. 54, ¶ 7, 98 P.3d 309, ¶ 7 (citations
omitted).
¶15 Rule 60(b), M.R.Civ.P., provides, in pertinent part:
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 a party's legal representative from a final judgment,
order, or proceeding for the following reasons: (1) mistake, inadvertence,
surprise, or excusable neglect; (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); (3) fraud (whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party; (4) the judgment is
void; (5) the judgment has been satisfied, released, or discharged, or a prior
judgment upon which it is based has been reversed or otherwise vacated, or it
is no longer equitable that the judgment should have prospective application;
or (6) any other reason justifying relief from the operation of the judgment.
[Emphasis added.]
¶16 Although Ted argues that his attorney failed to stay in contact with him, failed to file a
response to the motion requesting the District Court adopt the Referees’ Report, and failed to
attend the hearing, Ted’s Rule 60(b) motion does not set forth excusable neglect or any other
reason justifying relief from the partition order. The record indicates that Ted’s attorney
worked with the Referees to a final report and was in contact with Barbara’s attorney up to
the day prior to the hearing. Thus, contrary to Ted’s assertions, his attorney did not totally
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abandon him and disappear from sight. Unless an attorney totally abandons his client, the
neglect of an attorney is attributable to the client. In re Marriage of Castor (1991), 249
Mont. 495, 500, 817 P.2d 665, 667-68 (citations omitted).
¶17 In addition, the judgment of a district court can be set aside for “any other reason
justifying relief from the operation of the judgment.” Rule 60(b)(6), M.R.Civ.P. Generally,
relief is afforded under this subsection of the Rule only “in extraordinary situations when
circumstances go beyond those covered by the first five subsections or when a party in whose
favor judgment was entered has acted improperly.” Castor, 249 Mont. at 500, 817 P.2d at
668 (citations omitted). The case sub judice does not involve one of the extraordinary
situations contemplated by subsection (b)(6) of the Rule, nor has Barbara or any of the other
parties acted improperly.
¶18 Accordingly, we hold that Ted has not shown that the District Court abused its
discretion in refusing to set aside the partition order under Rule 60(b), M.R.Civ.P.
¶19 Affirmed.
/S/ JAMES C. NELSON
We Concur:
/S/ JOHN WARNER
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
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