                                           No. 05-646

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2007 MT 33N


                                                   ____________________________________

RAY L. SCOTT,

              Plaintiff and Respondent,

         v.

WES C. HIGGINS,

              Defendant and Appellant.

                                                   ____________________________________


APPEAL FROM:         District Court of the Eleventh Judicial District,
                     In and for the County of Flathead, Cause No. DV-96-637A,
                     The Honorable Ted O. Lympus, Presiding Judge.



COUNSEL OF RECORD:

              For Appellant:

                     Patrick F. Flaherty, Attorney at Law, Great Falls, Montana

              For Respondent:

                     Kenneth E. O’Brien, Hash & O’Brien, Kalispell, Montana

                                                   ____________________________________

                                                        Submitted on Briefs: December 20, 2006

                                                                     Decided: February 7, 2007

Filed:

                   _____________________________________________
                                       Clerk
Justice John Warner delivered the Opinion of the Court.

¶1        Pursuant to Section 1, 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        Defendant Wes Higgins appeals from denial of his Motion for Relief from

Judgment issued July 2, 2004, by the Eleventh Judicial District, Flathead County. We

affirm.

¶3        This appeal is the most recent step in protracted litigation encompassing numerous

claims, cases, and courts. Indeed, this Court has recently upheld the denial of a Motion

for Relief from Judgment made by Higgins in a related case. See Higgins v. Vortex

Fishing Systems, Inc., 2007 MT 5N.

¶4        In 1996, Scott sued Higgins seeking specific performance of a stock purchase

agreement for stock in Vortex Fishing Systems, Inc.              Higgins filed an answer

enumerating certain affirmative defenses, including the allegation that Scott had

fraudulently increased his ownership interest in Vortex. In 1998, the District Court ruled

Scott was entitled to specific performance of the agreement and specifically found Scott

had not fraudulently increased the number of his Vortex shares.

¶5        Almost six years after this ruling, Higgins filed a Motion for Relief from

Judgment, pursuant to M. R. Civ. P. 60(b), specifically claiming he had proof that the


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District Court’s 1998 ruling in favor of Scott was based on fraudulent statements Scott

had made to the court. The District Court denied this motion as untimely and Higgins

appealed.

¶6     The District Court correctly determined that pursuant to M. R. Civ. P. 60(b),

motions seeking relief from a judgment or order must be filed within a certain timeframe.

In instances such as this, where a party seeks relief on the basis of fraud, the motion must

be brought within 60 days. Here, Higgins brought his claim almost six years after the

judgment. This is simply too late.

¶7     Moreover, as Higgins acknowledges, the decision to grant relief from a judgment

is discretionary with the district court. We review the denial of a motion for relief of

judgment under 60(b) for an abuse of discretion. In re P.D.L., 2004 MT 346, ¶ 8, 324

Mont. 327, ¶ 8, 102 P.3d 1225, ¶ 8. Upon review of the record presented, we see no

abuse of discretion in the District Court’s refusal to grant Higgins’ motion.

¶8     Affirmed.

                                                 /S/ JOHN WARNER

We Concur:

/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/ JIM RICE
/S/ BRIAN MORRIS




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