No. 91-380
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
RAE JEAN KOCH, as next friend of JOHN KOCH, TTY .'-
a/k/a JOHN MINDT, a Minor,
Plaintiffs and Appellants,
-vs-
BILLINGS SCHOOL DISTRICT NO. 2,
.. ,
Defendant and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable ~illiam J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Gary R. Thomas; Thomas Law Office, Red Lodge,
Montana
For Respondent:
Michael W. Tolstedt; Anderson, Brown, Gerbase,
Cebull, Fulton, Harman & Ross, Billings, Montana
Submitted: April 29, 1992
Decided: June 11, 1992
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.
This is an appeal from an order of the Thirteenth Judicial
District Court, Yellowstone County, Montana, which granted summary
judgment to the respondent. The action arose from a negligence
claim involving a student who was injured while attempting a
teacher-supervised weight lifting maneuver at his junior high
school. The District Court denied appellant's motion for relief
from judgment under Rule 60(b), M.R.Civ.P. We reverse.
We restate the issues presented by the parties as follows:
I. Whether the District Court properly granted summary
judgment to the School District on the basis of immunity.
11. Whether the District Court properly denied the plaintiff's
Motion for Relief from Judgment pursuant to Rule 60(b) of the
Montana Rules of Civil Procedure.
In mid-October, 1985, John Koch (Koch), then fifteen years
old, was injured while attending a physical education class at
Castle Rock Junior High School. Koch's teacher, Fred Brautigan
(Brautigan), instructed Koch to squat-press weights totalling 360
pounds. Koch apparently protested but was instructed to try
lifting the weight. After attempting to stand from a squatting
position with the 360 pounds on his shoulders, Koch could not
sustain the weight and collapsed. The weight pinned Koch for
several seconds before Brautigan could remove it. Koch allegedly
suffered a bulged disc, lumbar sprain, spinal nerve compression and
other related injuries, including a mental condition of depression.
2
Koch initiated suit against three defendants: 1) The Board of
Trustees (the Board): 2) the teacher Brautigan; and 3) School
District No. 2 (School District).
On April 12, 1989, the District Court granted partial summary
judgment to the Board and Brautigan pursuant to § 2-9-305, MCA.
The School District, the only remaining defendant, moved for
summary judgment based on 5 2-9-111, MCA (1989). Koch opposed this
motion for summary judgment and moved for reconsideration of the
previous partial summary judgment. On February 7, 1990, the
District Court granted summary judgment to the School District
based on Eccleston v. Third Judicial Dist. Court (1990), 240 Mont.
44, 783 P.2d 363. Koch did not appeal from either summary
judgment .
Subsequently, this Court decided various cases addressing 5 2-
9-111, MCA, including Crowell v. School Dist. No. 7 (1991), 247
Mont. 38, 805 P.2d 522; and Hedges v. Swan (Mont. 1991), 812 P.2d
334, 48 St.Rep. 449. On March 15, 1991, Koch filed a motion for
relief from judgment, which was deemed denied since the District
Court did not act on the motion within forty-five days. Koch
appealed to this Court on June 25, 1991, desiring relief from the
order granting summary judgment, and a trial on the merits.
RELIEF UNDER RULE 60(b), M.R.Civ.P.
We first address the ability of a court to offer relief from
judgment under Rule 60(b), M.R. Civ. P., which is nearly identical to
the equivalent Federal rule, Rule 60(b), F.R.Civ.P.
The provisions of this rule must be carefully interpreted
to preserve the delicate balance between the sanctity of
final judgments, expressed in the doctrine of res
judicata, and the incessant command of the court's
conscience that justice be done in light of all the
facts.
Bankers Mortgage Co. v. United States (5th Cir. 1970) , 423 F.2d 73,
77 (emphasis in original).
Rule 60(b), M. R.Civ.P., sets forth the reasons under which the
"court may relieve a party or a party's legal representative from
a final judgment, order, or proceeding."
Koch claims that subsections (5) and (6) of Rule 60(b) are
applicable to the case at bar:
(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; (6) any other reason
justifying relief from the operation of the judgment.
Rule 60(b), M.R.Civ. P. (emphasis added) .
A careful reading of the statute discloses the word "orw at
the end of subsection (5) which we have emphasized. "[Ilt is
generally held that if a party seeks relief under any other
subsection of Rule 60(b), it cannot also claim relief under
."
60(b) (6) Libby Rod & Gun Club v. Moraski (D. Mont. 1981), 519
F.Supp. 643, 647. Accordingly, Koch erroneously attempted to
qualify under both subsections. Koch's Rule 60(b) motion should
have claimed that the motion could fall under either subsection (5)
or (6), but not both, since the two are mutually exclusive.
APPLICABILITY OF RULE 60(b) (5)
Koch claims that subsection (5) of Rule 60(b) applies to the
case at bar because of the change in law regarding immunity. This
change is best explained by an overview of relevant case law and
legislative amendments. In 1990, we held that a school district
was immune from suit when a janitor failed to clear ice and snow
from a gym stairway where a plaintiff slipped and sustained
injuries. Eccleston v. Third Judicial Dist. Ct. (1989), 240 Mont
44, 783 P.2d 363. The question of whether the School District had
insurance was discussed in Eccleston, 240 Mont. at 61, 783 P.2d at
373, Justice John C. Sheehy, in his dissent, noted:
There is a sardonic element in this case. The real
party in interest shouting "governmental immunity" is
probably an insurer. It sold a policy to the school
district, promising coverage for comprehensive liability.
Because of this Court, the insurer was never at risk for
any wrongful acts of the school district personnel
outside of motor vehicles. Its premium is pure gravy. .
. .
Then, In 1991, this Court held that a school district's
immunity was waived by the existence of liability insurance, to the
extent of such insurance. Crowell v. School Dist. No. 7, Gallatin
Cty. (1991), 247 Mont. 38, 805 P.2d 522.
In the case at bar, the District Court relied on Eccleston
when granting the School District's motion for summary judgment.
Due to the state of the law at that time, Koch did not appeal.
After our holding in Crowell, Koch identified the change in the
status of immunity and applied for relief from judgment under Rule
60(b) (5), M.R.Civ.P.
Koch is correct in observing that a change has taken place in
the area of immunity law, however this is not a valid reason under
5
which a Rule 60(b) (5) motion may be granted. We have previously
said that a change in decisional law after final judgment, does not
represent extraordinary circumstances under Rule 60(b) so as to
allow reopening of that judgment. We have also held:
In Fiscus I1 [Fiscus v. Beartooth Elec. Cooperative,
Inc. (1979), 180 Mont. 434, 439, 591 P.2d 196, 1991 this
Court stated ". . . only in an extraordinary case should
Rule 60(b) be granted. There is considerable authority
holding that when a decision is later overruled by a
court, that it is not 'extraordinary' . . ."591 P.2d at
199 (citing cases). We went on to note:
" I . . . that while 60(b)(5) authorized relief from
a judgment on the grounds that a prior judgment upon
which it is based has been reversed or otherwise vacated,
it does not authorize relief from a iudment on the
qround that the law applied by the court in makinq its
adiudication has been subseauentlv overruled or declared
erroneous in another and unrelated proceedinq' . ..
.
(citations omitted) . .
. there is ample support in the
federal courts . . . that when a decisional law change
occurs, subsequent to final judgment in a particular case
.
. . final judgment should not be altered." 591 P.2d at
200.
State ex rel. Rhodes v. Dist. Ct. (1979), 183 Mont. 394, 396, 600
P.2d 182, 183 (emphasis added)
At first blush the meaning of the term "prior judgment" in
Rule 60(b) (5) could lead one to conclude that if any case relied
upon later was reversed or otherwise vacated, the rule would permit
relief from judgment. According to the above quotes from Fiscus I1
and Rhodes, this is not what is meant by "prior judgment." "The
'prior judgment' clause is limited to cases in which the present
judgment is based on the prior judgment in the sense of res
judicata or collateral estoppel; it does not apply when . . . the
prior judgment has been relied on merely as precedent." 3 J.
Moore, Moore's Manual of Federal Practice and Procedure, Section
6
26.08, pp. 26-34, footnote 10 (1989).
Reliance on a judgment in an unrelated case . . . does
not make the original judgment vulnerable within the
"prior judgment" clause of subsection 5. Lubben v.
Selective Service System Local Board No. 27, supra, 453
F.2d at 650; see 11 C. Wright & A. Miller, supra 5 2863,
at 204 ("[tlhis ground [subsection (5)1 is limited to
cases in which the present judgment is based on the prior
judgment in the sense of res judicata or collateral
estoppel. It does not apply merely because a case relied
on as precedent . . .has since been reversed"); cf.
Ackermann v. United States, supra, 340 U.S. at 197-99, 71
S.Ct. 209; Chicot County Drainaqe District v. Baxter
State Bank, suwra, 308 U.S. at 374-78, 60 S.Ct. 317.
Marshall v. Board of Ed., erge en field, N.J (3rd Cir. 1978), 575
Since Eccleston and Crowell are unrelated to the case at bar,
Koch's claim under Rule 60(b)(5), M.R.Civ.P., which relies on the
change of law in those cases, fails
We also mention that Koch cannot prevail by arguing a change
in the law under the last phrase of subsection (5) which states
that "it is no longer equitable that the judgment should have
prospective application." In Libby Rod & Gun Club v. Moraski (D.
Mont. 1981), 519 F.Supp. 643, 647, merely arguing that the law had
changed did not result in relief from judgment under the last
phrase of subsection (5), nor can it here.
APPLICABILITY OF RULE 60(b)(6)
Koch also claims that relief from judgment is possible under
subsection (6) of Rule 60(b). Subsection (6), sometimes called the
"other reason clause," is a residual clause in which the court can
use its equitable power to achieve justice under an appropriate set
of circumstances.
[Tlhe language of the "other reason" clause, for all
reasons except the five particularly specified, vests
power in courts adequate to enable them to vacate
judgments whenever such action is appropriate to
accomplish justice.
Klapprott v. United States (1949), 335 U.S. 601, 614-615, 69 S.Ct.
In Overbee v. Van Waters & Rogers (6th Cir. 1985), 765 F.2d
578, the Ohio Supreme Court essentially changed the effective date
of a statutory change by the legislature regarding contributory and
comparative negligence. The change took place close in time to the
Overbee proceedings (judgment, first appeal and remand), which
affected substantially the plaintiff's claims. The court granted
relief under Rule 60(b) (6), F.R.Civ.P., on the grounds that the
circumstances constituted extraordinary circumstances and because
without it substantial justice would not be served.' Overbee, 765
F.2d at 580. The Overbee court held "that the mere showing of a
change in the law is not enough to demonstrate such an
extraordinary situation when the judgment has become final. ...
'1n Overbee, on June 20, 1980, the Ohio legislature changed
relevant statutory provisions from contributory negligence to
comparative negligence. After some confusion over whether the
change applied to actions that accrued after June 20, 1980, or to
actions that were actually tried after that date, the Ohio
Supreme Court decided that the change only applied to causes of
action accruing after June 20, 1980. Since the plaintiff's claim
accrued prior to June 20, 1980, even though trial was held in
1981, the change was unhelpful to the plaintiff's action.
Subsequently, the Ohio Supreme Court reversed itself and held
that the change from contributory to comparative negligence was
applicable to any actions that came to trial after June 20, 1980.
These facts constituted "extraordinary circumstances.~
However, we are of the opinion that the unique facts of this case
compel the granting of the motion. . . . Overbee, 765 F.2d at
580.
Similarly, extraordinary circumstances were identified in
Adams v. Merrill Lynch Pierce Fenner & Smith (10th Cir. 1989), 888
F.2d 696. In w , a dispute over an arbitration issue the
after
district court granted Lynch's motion under Rule 60(b) (6). Adams,
888 F.2d at 702. The court said that "a change in relevant case
law by the United States Supreme Court warrants relief under Rule
60(b)(6)." (Citing cases.) Adams, 888 F.2d at 702.
In Klapprott, a naturalization case, circumstances were such
so as to justify granting a Rule 60(b)(6) motion since there would
be a furtherance of justice. Klapprott v. United States (1949),
335 U.S. 601, 69 S.Ct. 384, 93 L.Ed 266.
These cases are germane to the case at bar because they are
examples of "extraordinary circumstances' warranting relief from
judgment via subsection (6) of Rule 60(b), M.R.Civ.P. In addition
to the relevancy of these cases, we also acknowledge and consider
the insurance reference in Justice John C. Sheehy's dissent in
Eccleston which could be mistakenly interpreted. The mention .of
insurance in the dissent and no mention of it in the majority
opinion could be misleading, inasmuch as such reference could be
interpreted that insurance was a consideration in the case. It was
not.
Therefore, with guidance from Overbee, Adams, and Klapprott,
and after careful consideration of the facts and circumstances
present in the case at bar, we hold that relief from judgment under
subsection (6) of Rule 60(b) is warranted. In arriving at this
conclusion, we point out the discretion of the court in granting
relief under Rule 60(b) as evidenced by the use of the word may;
the court may relieve a party from a final judgment, order or
proceeding. Savarese v. Edrick Transfer & Storage, Inc. (9th Cir.
1975), 513 F.2d 140, 146. From the aforementioned cases, we
conclude that due to facts and circumstances, and in the
furtherance of justice, Kochts motion was proper under Rule
60(b) (6) and the District Court erred in not granting it. We again
carefully emphasize the limited nature of this decision and it does
not establish a general rule for reopening a final judgment merely
because there has been a subsequent change in the law upon which
that judgment was based. Only when extraordinary circumstances are
found to exist, as in the present case, may Rule 60(b) (6),
M.R.Civ.P., be used to modify a final judgment.
TIMELINESS OF MOTION UNDER RULE 60(b)
Another important requirement of Rule 60(b), M.R.Civ.P., is
that the motion must be timely made. Rule 60(b) indicates that a
motion based on subsections (I), (2) or (3) must be made within a
structured time frame. However, the Rule makes no specific
provision for the timely filing of a motion under the remaining
subsections. Instead, a motion under the remaining subsections
(4), (5) and (6) must be made "within a reasonable time." A
reasonable time'can only be determined when considering the facts
of each case. United States v. Holtzman (9th Cir. 1985), 762 F.2d
720, 725. We previously said that:
Any time limitations that may be involved in this case
require that a balance be struck between the public
interest in putting an end to litigation at some point
and the public interest in keeping its judicial system
free from corruption. For this reason the timeliness of
the motion to vacate must ultimately depend upon
equitable principles and placed within the sound
discretion of the court.
Selway v. Burns, Estate of Burles (1967), 150 Mont. 1, 10, 429 P.2d
The School District argues that since Koch filed his Rule
60(b) motion over a year after summary judgment was granted, it was
not filed within a reasonable time. Respondent's argument is
unpersuasive. Koch filed his Rule 60(b) motion on March 15, 1991,
forty-eight days after our Crowell opinion, which changed the law
in the immunity area particularly when liability insurance was
involved. Under the circumstances, and in light of our discretion,
we do not find the timing of Koch's motion to be unreasonable.
Accordingly, Koch's motion was not only proper but also timely.
STATUTORY CHANGES IN THE AREA OF GOVERNMENTAL IMMUNITY
Absent from either the School District's or Kochls appellate
briefs, but dispositive in this case, is the amended version of
§ 2-9-111, MCA. The amended statute essentially makes the parties1
immunity arguments moot. The legislature amended the statute soon
after our opinions of Crowell and Hedcres, which, in essence,
responded to our interpretation of 5 2-9-111, MCA, as it existed at
that time. The 1991 changes in the statute clarified legislative
11
intent and our interpretation changed accordingly as explained in
Dagel v. City of Great Falls (Mont. 199l), 819 P.2d 186, 48 St-Rep.
919. The legislature deemed the statute retroactive to all cases
not final by May 24, 1991. Daqel, 819 P.2d at 191, 48 St.Rep. at
In the case at bar, the summary judgment granted in favor of
the School District became final when Koch did not appeal within
thirty days from the judgment. This was prior to the retroactive
effective date of the amended statute which was May 24, 1991.
However, according to our previous discussion of Rule 60(b)(6)
herein, we have reopened the judgment which makes the status not
final. Accordingly, the current, newly amended statute is now
applicable, as interpreted in Daael.
Dasel is particularly germane since it deals with the amended
statute which is the primary focus of the case at bar. We recite
the purpose of the amended statute in Daqel as:
AN ACT CLARIFYING THAT STATUTORY LEGISLATIVE IMMUNITY
EXTENDS ONLY TO LEGISLATIVE BODIES OF GOVERNMENTAL
ENTITIES AND ONLY TO LEGISLATIVE ACTIONS TAKEN BY THOSE
BODIES; CLARIFYING THAT GOVERNMENTAL ENTITIES ARE NOT
IMMUNE UNDER THE LEGISLATIVE IMMUNITY STATUTE FOR
NONLEGISLATIVE ACTIONS; CLARIFYING THAT THE ACQUISITION
OF INSURANCE DOES NOT WAIVE IMMUNITY; AMENDING SECTION 2-
9-111, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE AND
A RETROACTIVE APPLICABILITY DATE.
Daqel, 819 P.2d at 191, 48 St.Rep. at 921.
Section 2-9-111, MCA (1991), significantly changed
the statute and therefore modifiedthe theories expressed
in the various immunity cases as well as in Crowell with
regard to insurance. First, under the new statute, a
legislative body is not immune from the negligent acts of
its employees. 5 2-9-lll(1) (c), MCA (1991). Second, the
purchase of insurance does not waive immunity. 5 2-9-
lll(4), MCA (1991).
w, 819 P.2d at 191, 48 St.Rep. at 922.
According to Daqel the School District (the legislative body)
is not immune for the negligent acts of its employees. Whether the
teacher's acts amount to negligence in the case at bar is a
question of fact which must be determined in a trial on the merits
upon remand. Clearly, the teacher's acts of instructing Koch to
squat-press 360 pounds of weight are not legislative acts and are
not immune under the meaning of the current version of 5 2-9-111,
MCA .
Both parties also make much out the of the purchase of
liability insurance because of our holding in Crowell where we said
that the purchase of liability insurance should waive immunity to
the extent of the insurance coverage. The new statute deals
directly with the Crowell situation and states that "the
acquisition of insurance coverage, including self-insurance or
group self-insurance, by a governmental entity does not waive the
immunity provided by this section." Section 2-9-111(4) MCA (1991).
This provision effectively overrules the Crowell line of cases
regarding liability insurance, although the Crowell decision does
give an excellent chronological history of governmental immunity
that should not go unnoticed.
FAILURE TO APPEAL
The School District argues that Koch voluntarily chose not to
appeal and now, a year after final judgment, should not be granted
another bite at the apple. Generally, failure to appeal for almost
any reason is fatal to a motion to reopen judgment under Rule
60(b). If allowed, it would in essence make a Rule 60(b) motion a
substitute for appeal, which is an improper use of the motion.
Donovan v. Graff (1991), 248 Mont. 21, 808 P.2d 491. In
criticizing a party's failure to appeal the United States Supreme
Court said:
Petitioner made a considered choice not to appeal,
apparently because he did not feel that an appeal would
prove to be worth what he thought was a required
sacrifice of his home. His choice was a risk, but
calculated and deliberate and such as follows a free
choice. Petitioner cannot be relieved of such a choice
because hindsight seems to indicate to him that his
decision not to appeal was probably wrong, considering
the outcome of the Keilbar case. There must be an end to
litigation someday, and free, calculated, deliberate
choices are not to be relieved from.
Ackermann v. United States (1950), 340 U.S. 193, 198, 71 S.Ct. 209,
Even so, failure to appeal may not be fatal. The United
States Supreme Court acknowledged the importance of Ackermann but
also said:
Despite the relevant and persuasive force of
Ackermann, however, we need not go so far here as to
decide that when an appeal has been abandoned or not
taken because of a clearly applicable adverse rule of
law, relief under Rule 60 (b) is inflexibly to be
withheld when there has later been a clear and
authoritative change in governing law. . ..
Polites v. United States (1960), 364 U.S. 426, 433, 81 S.Ct. 202,
206, 5 L.Ed.2d 173, 177. The Ninth Circuit Court recently held,
after considering individual case facts and after meeting the
standards for relief under Rule 60(b)(6), that a failure to appeal
did not bar relief under the rule. United States v. Wyle (9th Cir.
l989), 889 F.2d 242. We also note that Rule 60 (b) (6) is not
inflexible.
[I]t ordinarily is not permissible to use this motion to
remedy a failure to take an appeal. However this is not
an inflexible rule and in unusual cases a party who has
not taken an appeal may obtain relief on motion . . .
[Courts] have acted on the premise that cases of extreme
hardship or injustice may be brought within a more
liberal dispensation than a literal reading of the rule
would allow. . . .
Wright and Miller, Federal Practice and Procedure, Vol. 11, 5 2864,
pp. 214-215, 219-220. Accordingly, we find that Koch's failure to
appeal is not fatal, and because of the non-final status of his
case, due to our granting of his Rule 60(b)(6) motion, the current
amended version of 5 2-9-111, MCA, and law in Dasel is controlling.
CONCLUSION
Because of the amended immunity statute and our foregoing
analysis reversal is proper.
Therefore, we remand to the District Court for a trial on the
merits with instructions to take specific notice of the amended
version of the immunity statute, 5 2-9-111, MCA, and the Daqel
case.
~ustick
ief Justice
Justices
Justice Karla M. Gray, dissenting.
I respectfully dissent from the opinion of the majority. I do
not feel less sympathy than the majority does for this plaintiff
who has gone without a remedy as a result of this Court's earlier
immunity decisions. I, too, would like to "do justice" in this
case, if it could be accomplished without upending the vital
principle of finality of judgments. Unfortunately, I am unable to
find, and the majority does not state, what "extraordinary
circumstances" make Rule 60(b) (6)'s "other reason1' clause
applicable here under controlling precedent. As a result, I cannot
agree with the majority's analysis or result.
The facts pertinent to the issue before us are few. Plaintiff
brought suit against three defendants. Summary judgment was
granted to two of the defendants in 1989 and to the defendant
School District on February 7, 1990. The grant of summary judgment
to the School District was based on this Court's 1990 Eccleston
decision interpreting § 2-9-111, MCA. Plaintiff did not appeal.
On February 6, 1990, a summary judgment was entered in favor
of another school district in a separate lawsuit, also on the basis
of Eccleston. That case was appealed and resulted in this Court's
Crowell decision on January 25, 1991. While not a retreat from the
earlier immunity interpretation, we held in Crowell that insurance
coverage waived the statutory immunity to the extent of the
coverage.
Koch filed a motion for relief from judgment pursuant to Rule
60(b)(5) and ( 6 ) , M.R.Civ.P., in March 1991; the motion was based
17
on the change in the law in Crowell. The motion was denied by
operation of law and Koch appealed, seeking relief from the School
District's February, 1990, summary judgment.
On appeal, Koch first argues that relief from the summary
judgment is available under Rule 60(b)(5). This argument is
premised on the change in the law from Eccleston to Crowell,
together with the assertion that under the Rule it is no longer
equitable to give Eccleston prospective application to this case.
The majority correctly rejects the Rule 60(b)(5) argument, relying
on Libbv Rod & Gun Club.
Koch also asserts the availability of relief from judgment
under the "other reason" clause contained in Rule 60(b) (6). This
argument is also premised on the change in the decisional law. It
includes allegations of reliance on the dissent in Eccleston, in
which Justice Sheehy noted the llprobability" that the real party in
interest in Eccleston was an insurer, in deciding not to appeal.
In concluding that the ~istrict Court erred in denying
appellant's Rule 60(b) (6) motion, the majority does not mention or
address this Court's seminal and controlling case on Rule 60(b) (6),
In re Marriage of Waters (1986), 223 Mont. 183, 724 P.2d 726.
Instead, it relies on three easily distinguishable federal cases.
The result is a flawed legal analysis which will cause enormous
difficulties to parties litigant, the bench, the bar and this Court
in the future.
Waters was based on a unique set of facts which made Rule
60(b) (6) relief appropriate. At the time of the initial hearing on
the dissolution of the Waters' marriage, Montana treated military
pensions as a marital asset subject to equitable distribution.
Before the decree was entered, however, the United States Supreme
Court held that federal law precluded state courts from dividing
military retirement pay pursuant to state marital asset
distribution laws. Bound by the Supreme Court's decision, the
district court concluded in the 1981 dissolution decree that Mr.
Waters' military pension was not a marital asset. No appeal was
taken. In 1983, Congress responded to the Supreme Court's decision
by enacting the Uniformed Services Former Spouses' Protection Act
(USFSPA); the USFSPA allowed state courts to treat military
retirement pay as a marital asset in accordance with state law.
The legislative history of the USFSPA indicated Congressional
intent to remove the effects of the Supreme Court's decision
entirely, including via retroactive applicability of the Act to the
date of that decision. Relying on the USFSPA, Ms. Waters filed a
Rule 60(b)(6) motion for relief from judgment. The district court
granted the motion and this Court affirmed.
Our decision in Waters was carefully drawn. We noted that the
Ackermann test required a party to demonstrate Ifextraordinary
circumstances1'justifying relief and concluded that Ms. Waters had
met that burden. We noted that it was not the fact that Congress
had essentially overriddenthe Supreme Court in enacting the USFSPA
that made the situation unique; rather, it was Congress' specific
intent to accomplish precisely what Ms. Waters was attempting to
accomplish through her Rule 60(b) (6) motion that constituted
sufficient "extraordinary circumstances." In so concluding, we
were careful to "emphasize the limited nature of this decision; it
does not establish a general rule for reopening a final judgment
merely because there has been a subsequent change in the law upon
which that judgment was based."
In the case before us, it is the change in decisional law from
Eccleston to Crowell which is the real basis for appellant's Rule
60(b) (6) motion and the majority's result. As such, that result is
in direct derogation of the rule in Waters. Further, while
appellant's asserted reliance on Justice Sheehy's dissent in
Eccleston provides a convenient means to reach the desired end
here, it is not and should not be seriously delineated as the basis
for the majority's holding. Speculation as to various
interpretations which could have been put on that dissent or on
language in any opinion of this Court is an unending game, and
should not be adopted by this Court as "good causeN for a party's
decision not to take an appeal and later attempt to seek relief
from a judgment. This is particularly so where, as in this case,
there was no suggestion whatsoever in the dissent that the
"sardonic elementM that an insurer "probably" was the real party in
interest was raised as an issue in the case. Finally, whatever
interpretations may have been possible, one attorney did appeal an
adverse summary judgment based on Eccleston, and that appeal
resulted in our Crowell decision on which appellant now wishes to
rely in breathing life back into a case long final. What we have
here as a basis for relief from judgment, from a legal standpoint,
is a change in decisional law. Under Waters, that is not enough.
In addition, while I agree entirely with the statements of law
and, indeed, the results in the three federal cases relied on by
the majority, those cases are easily distinguishable from the
present case. The majority relies first on Overbee which it
asserts is germane to the case before us as an example of
"extraordinary circumstances1'justifying Rule 60(b)(6) relief. I
agree that Overbee was such a case and that the circumstances in
that case justified relief from the judgment therein; however,
Overbee is not germane to the instant case.
In Overbee, the plaintiff appealed several issues to the Ohio
Supreme Court, including whether the jury should have been
instructed on comparative negligence. During the pendency of that
appeal, but before oral argument, the Ohio Court decided a separate
case in which it reached a result directly opposite of Overbee's
argument on comparative negligence. As a result, Overbee conceded
at oral argument that the court's very recent decision settled that
issue. The court affirmed in part in Overbee's appeal, but
reversed and remanded for an evidentiary hearing on another issue.
During the period of remand, but before the evidentiary hearing
ordered by the Ohio Supreme Court, that court reversed itself on
the comparative negligence question; the reversal occurred within
one year of the earlier decision. Plaintiff filed a Rule 60(b) (6)
motion, the evidentiary hearing on remand was held, and the trial
court then denied the motion for relief from the earlier judgment.
The Sixth Circuit held that two factors established the "unique
facts" on which it reversed the denial of the Rule 60(b) (6) motion:
first, that the judgment in the case was not final at the point in
time that plaintiff filed the motion; and second, that if the Ohio
Supreme Court had reached its ultimate (second) decision on the
comparative negligence question during the pendency of plaintiff's
first appeal, plaintiff clearly would have prevailed on the
comparative negligence issue in the first appeal. Thus,
extraordinary circumstances existed which, in the view of the Sixth
Circuit, mandated Rule 60 (b)(6) relief.
The facts in the case before us are not similar to those in
Overbee which formed the specific basis for the Sixth Circuit's
decision. Here, the judgment from which relief is now sought was
final many months before our Crowell decision; importantly, and
unlike the situation in Overbee, no appeal was taken from that
judgment. In addition, the Ohio Supreme Court actually reversed
itself on the comparative negligence issue which had been raised by
Overbee during his first appeal and did so within one year, at a
time when Overbee's case had not reached final judgment. In the
case before us, this Court did not reverse Eccleston in deciding
Crowell and Crowell was decided nearly a year after the judgment at
issue became final.
The majority next quotes a portion of a statement by the Tenth
Circuit in Adams for the proposition that "a change in relevant
case law by the United States Supreme Court warrants relief under
Rule 60 (b) (6) ." The majority's failure to quote the entirety of
that statement by the Tenth Circuit belies the application of that
proposition to this case and makes clear how inapposite Adams is to
the case at hand. The Tenth Circuit's full statement in Adams is
"In this circuit, a change in relevant case law by the United
States Supreme Court warrants relief under Fed.R.Civ.P. 60(b) (6) ."
(Emphasis added.) The test for Rule 60(b) (6) relief in the Circuit
Courts of Appeal based on a change in decisional law by the United
States Supreme Court is not related in any way to the issue before
this Court. This Court's test for applying that relief is
contained in Waters, discussed above. That test is not met here
and, as noted above, the majority does not even recognize the
existence of Waters in its opinion.
The majority relies, finally, on Klapprott, a 1949
naturalization case. Again, the majority does not suggest that the
facts in that case relate in any way to those before us; for that
reason, I will not belabor the obvious. The majority uses
Klapprott for the concept that Rule 60(b) (6) is available in the
"furtherance of justice." Again, the majority ignores its own
Waters rule in order to "do justicen in this case.
It is my view that "extraordinary circumstance^^^ do not exist
in this case to invoke Rule 60(b)(6) relief. This case involves a
change in decisional law which is not sufficient under Waters to
support relief from judgment under the "other reason" clause of
Rule 60(b)(6). The majority having opened the door in Montana to
the premise that motions for relief from judgment under Rule
60(b) (6) are now available to "do justice," with nothing more
required, I do not look forward to the task of trying to keep that
premise contained or limited. The days of finality of judgments in
Montana are gone.
I will comment only briefly on the majority's discussion of
the statutory changes in the area of governmental immunity. The
majority states that the 1991 amendments are lldispositive"and
render the parties' arguments on immunity moot. The majority's
statement is correct, but only because the majority itself has
inappropriately breathed life back into a judgment which has been
final for over two years. Absent that action, it is clear that the
1991 amendments would be inapplicable to this case by virtue of the
legislature's clear and stated intent to make the amendments
applicable only to those cases which were not final by May 24,
1991.
Justice Fred J. Weber joins in the foregoing dissent of
Justice Karla M. Gray.