                                    No.     95-222
              IN THE SUPREMECOURT OF THE STATE OF MONTANA
                                          1995


LORNIE K. MUELLER and ROSE E. MUELLER,
              Petitioners      and Respondents,
         v.
JOHN S. MILLER,
              Respondent     and Appellant.



APPEAL FROM:        District  Court of the Fourth Judicial  District,
                    In and for the County of Missoula,
                    The Honorable John Larson, Judge presiding.


COUNSEL OF RECORD:
              For Appellant:
                    Mark E. Jones,        Attorney   at Law, Missoula,
                    Montana

              For Respondents:
                    Nancy K. Moe; Ellingson          & Moe, Missoula,     Montana
                    Harold     V. Dye; Dye Law Office,        Missoula,   Montana



                                      Submitted      on Briefs:     August   3, 1995
                                                       Decided:     August   22, 1995
Filed:
Justice          Karla         M. Gray delivered                 the Opinion                 of the Court.

           John S. Miller                  (Miller)         appeals            from         the       findings          of   fact,
conclusions               of       law     and      order        entered              by      the       Fourth          Judicial
District           Court,          Missoula         County,          denying           his        combined         Rule      60(b)
motion       for     relief          and motion            for   leave         to amend his                pleadings.              We
affirm.
          The dispositive                  issue      before         us is whether                    the District           Court
erred      in denying              Miller's        motion        for    relief             from summary judgment.
          Lornie          K.     Mueller         and Rose E.                  Mueller             (Muellers)             filed          a

petition           for         ejectment         against          appellant                 Miller         and Andrea              K.
Miller       (Millers)              on December 11, 1991.                            The petition             alleged            that
the parties               entered         into     a contract                for      the      sale      and purchase              of
land owned by the Muellers;                               that    the Millers                  took      possession              and,
thereafter,               failed         to comply with                the terms             of the contract;                    that
the      Muellers           properly           demanded possession;                           and that            the    Millers
failed       to     give         possession           of    the property                    to the        Muellers.               The
Muellers           subsequently                amended their                  petition             to     add claims              for
unlawful           detainer,             holdover         and injunctive                    relief.
          Miller         answered the petition                       on May 28, 1992.                    He subsequently
filed        a      bankruptcy                petition;           his          bankruptcy                proceeding               was
dismissed            in         1994.          The Muellers                  and           Andrea        Miller         filed           a
stipulation               for    confession           of judgment                  against         Andrea Miller.
          On August              15, 1994,          the Muellers                   filed      a motion            for    summary
judgment           against           Miller.           Miller's              counsel            moved for,               and was
granted,          an extension                of time to respond.                      When Miller            did not file
a response,               the      Muellers         filed        a notice              of     issue.         The District
Court      granted          the Muellers'              motion          for     summary judgment                    on October

                                                                 2
5, 1994.           The Muellers                filed.and              served notice               of entry               of judgment
on       October          25,      1994.                The         Muellers          had        filed          a        motion        for
preliminary              injunction            just        prior          to their      summary judgment                        motion,
Miller       had responded,                    a hearing                 was held        at which           Miller              and his
counsel        appeared,                 and         the         court        had       issued            the          preliminary
injunction.
          On November                  17,     1994,            Miller        filed       a combined                     motion        for
relief       from         summary judgment                       and motion             to     file        amended answer.
The basis           of the motion                    for     relief         from summary judgment                           was that
the Muellers'               counsel          committed               fraud      on the court               by creating                 the
illusion           that      Miller's                counsel              was served           with        the           motion        for
summary judgment                   when,           in      fact,          he was not             served;               Miller       also
alleged       that          the         failure            to       serve      Miller's            counsel               prejudiced
Miller.            The parties               briefed             the       motion       for       relief            from        summary
judgment       and the court                    held         an evidentiary                  hearing.
          On January              3,     1995,          the       District            Court       filed          its       extensive
findings           of     fact,         conclusions                 of     law and order                  denying           Miller's
motion       for        relief          from      summary judgment                      and motion                  to     amend his
answer.        Miller             appeals.
          Did the District   Court err in denying                                            Miller's            motion
          for relief   from summary judgment?
          "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     . . . (3) fraud[.               I”           Rule 60(b),
M.R.Civ.P.                 Motions             for         relief          from       judgment             based           on      fraud
generally           must          be made within                          60 days        of      notice             of     entry          of
judgment.               Rule 60(b),            M.R.Civ.P.                  Here,      Miller's           motion           for    relief
from judgment               alleging              fraud         on the court             was timely                 made.

                                                                      3
         The District                     Court        denied           Miller's               motion         based on extensive
findings             of     fact.             It     is      clear         from       the       language            of Rule         60(b),
M.R.Civ.P.,                that         a court's            action            in granting               or denying          a party's

Rule 60(b)                motion        for        relief        is discretionary.                           Thus, we review             the
District             Court's         denial           of Miller's                motion          for     abuse of discretion.
Steer,         Inc.         v.      Dep't           of Revenue                 (1990),          245 Mont.            470,     803 P.2d
601.       We review                findings              of fact        which form the basis                         for    a court's
discretionary                    determination                   under          a three-part                   clearly      erroneous
test       involving,                first,           whether           substantial                    evidence          supports        the
findings             being          challenged.                      Tonack          v.        Montana            Bank of       Billings
(1993),         258 Mont.                 247,       251,        854 P.2d 326,                   329 (citation              omitted).
         Miller            relies          on Meyer v. Lemley                             (1929),            86 Mont.       83, 282 P.
268,     for         the proposition                      that       fraud       on the court                     is committed         when
misconduct                is performed                 by the one in whose favor                                    the judgment           is
rendered.                 The misconduct                    he alleges               is that           the Muellers'              counsel
intentionally                    failed            to serve          his counsel,                Laurence            Ginnings,         Esq.
(Ginnings)            , with              the       motion           for        summary judgment;                        created         the
impression                 that         proper            service            had been made by                        serving          other
counsel;              and,         as     a result,                  obtained              summary judgment                     for      the
Muellers              without             giving             him      an        opportunity                  to     establish          that
genuine          issues             of material                  fact          existed          which         precluded           summary
judgment.
         The District                     Court           made the             following               extensive          findings         of
fact     in this            regard,           based on the pleadings,                              exhibits           and testimony
before         it.          The Muellers                     filed         a petition                  for     ejectment          against
appellant                 Miller          and         Andrea            K.       Miller           in         December        of       1991.
Ginnings              was         personally                  served            as        counsel             for     the       Millers.
Ginnings             subsequently                    filed         a notice               of    appearance             on behalf           of
                                                                           4
Miller      only.
          Ginnings         filed       a status          report         on Miller's             behalf         on January

21,      1994.       Nancy Moe, Esq.                   (Moe),        having          replaced        earlier          counsel
for     the Muellers,              filed        a status      report           on their       behalf          on the same
date.        Moe filed             an updated             status        report         on February              17,      1994,
concerning           Miller's          pending          bankruptcy             action;          the        status      report
reflected          Moe's understanding                    that        Bruce Hussey,             Esq.         (Hussey)       was
representing              Miller           in    the     bankruptcy             action.               Moe served            the
updated       status        report          on both        Ginnings            and Hussey.
          On June          20,      1994,        Moe filed             an additional                  updated          status
report       indicating             dismissal           of the bankruptcy                    action;           she served
both Ginnings              and Hussey on Miller's                       behalf.           The District                Court's
scheduling           order,        issued         June 23, 1994, was served                           on both          Hussey
and Ginnings              as counsel             for    Miller.
          Moe and Hussey had a telephone                               conversation             on June 28, 1994,
after      which         Moe sent           letters       confirming              the conversation                    to both
Hussey       and Ginnings.                      On July      8, 1994,             Moe wrote            to Hussey            and
Ginnings          that     Hussey had advised                 he would be representing                          Miller       in
the      action      and would be conferring                           about         the proposed              scheduling
order.        Hussey signed                 the stipulated                 proposed          scheduling             order    on
Miller's          behalf      on July            21, 1994.            Thereafter,             with         regard      to the
Muellers'          motion        for       preliminary            injunction           and other            matters,        Moe
served      only         Hussey as counsel                 for       Miller.
          On August           10,      1994,           Hussey        filed        a motion            to     continue        on
Miller's           behalf          with         regard       to        a     hearing          on       the      Muellers'
preliminary              injunction             motion.              Notes      in     the    court's          file      by a
clerk       and judicial               aide        reflect           Hussey's          active         involvement               in
seeking          a continuance              of the hearing                 date       through         telephone          calls
                                                                 5
to       the      court.             Hussey            filed          a     response           to          the      motion       for
preliminary            injunction                  on Miller's             behalf         on August              11, 1994.
          Moe filed          the Muellers'                    motion        for     summary judgment                     on August

15,      1994,      and served                it      on Hussey             as Miller's               counsel.              Hussey
filed      a motion           for     extension               of time            to respond           to the motion              for
summary judgment.
          The      District             Court           denied             the       motion           to         continue        the
preliminary            injunction                  hearing          which        Hussey had filed                  on Miller's
behalf.            Miller           appeared                personally             with      Mark          E.     Jones,        Esq.
(Jones)         at the preliminary                          injunction            hearing      on August                 19, 1994;
Jones          indicated           he was appearing                         for     Hussey.                Throughout           that
hearing,          Jones'       arguments              were interspersed                    with       references             to "my
client"         and "our           client."             At the same hearing,                        Miller          referred         to
his      "other     attorney"           as Hussey.                   The District             Court         referred         to the
Muellers'            pending             motion               for         summary            judgment              during        the
preliminary            injunction              hearing.               The court            issued          the preliminary
injunction           during          the hearing               and also            issued       its        order         regarding
settlement          proceedings;                   the court          served Hussey on Miller's                            behalf.
          Hussey was served with                            the Muellers'            notice         of issue             regarding
the      motion        for     summary judgment                          after      Hussey          failed          to     respond
within         the time granted                    in response              to his motion              for        extension          of
time.          The District            Court          granted            summary judgment                   on the basis             of
Miller's          failure          to respond.                After       notice          of entry          of judgment          was
filed,         Jones       filed       a notice              of appearance                 on Miller's               behalf;         he
did      not serve           Hussey.
          On the basis               of these           extensive                findings,          the District               Court
specifically               found that              Ginnings          did not file             any pleading,                and did
not actively               represent               Miller       in written            pleadings,                 after     January
                                                                     6
21,     1994.           The court          also     .found          that     the         reason       for         Ginnings'
inaction         was his belief            and understanding                      that     Miller       had retained
Hussey,       and later          Jones,      to represent                  him.
         The court          further         found        that       no testimony              established               that
Ginnings        would have actively                 participated                 in opposing          the Muellers'
motion      for         summary judgment,                 and that            Miller's            own actions                 in
having      Hussey         seek     a continuance                   of     the     preliminary                injunction
hearing       and additional               time      for        briefing           the motion               for     summary
judgment         demonstrated         that        he considered               Hussey to be his                     counsel.
Finally,         the     court      found         that     both          Hussey's          filings           and Jones'
statements         at the preliminary                injunction              hearing        negated           any notion
that     Ginnings         was actively             representing               Miller         at any point               past
June 29, 1994.
         On the basis            of these extensive                  findings            of fact,       the District
Court      ultimately            found      that         Moe had not                misrepresented--either
actively        or constructively--any                     matter          with    regard         to the Muellers'
motion     for     summary judgment.                 As a result,                 the court          concluded          that
the     "misrepresentation"                 element        necessary              to a fraud          claim         had not
been established.
         We note         that,      with      the        exception           of     several           technical            and
nonsubstantive             differences            between certain                  of the District                  Court's
findings         and the         testimony,          Miller          does not             contend       that         any of
these      extensive         findings         of     fact        are unsupported                     by substantial
evidence;         nor     does our          review         of       the     record         disclose           a lack          of
substantial             evidence      in support            of any of the findings.                                Thus,      we
conclude         that     the findings             are     supported              by substantial                   evidence
and that         the District         Court        did not misapprehend                       the effect              of the
evidence;         nor are we left             with       a conviction              that      a mistake             has been
                                                            7
committed.                 On that        basis,        therefore,           we further                conclude            that      none
of the court's                    findings           of fact        is clearly                 erroneous.
         Assuming arsuendo                       that      the "misconduct"                     standard             set forth          in
Mever is,             as Miller           asserts,            the appropriate                   standard             for     fraud      on
the      court        under         Rule        60(b),        M.R.Civ.P.,                it     is     clear         that      Miller
failed       to       establish             any misconduct                  or      fraud            by Moe.               While      the
court      was faced               with        conflicting              testimony             with      regard         to certain
of the nonrecord                        conversations,               it    is within                 the province              of     the
finder      of        fact        to determine                the       credibility                  of witnesses              and to
weigh--and             resolve           conflicts            in--the       evidence,                 Tonack,         854 P.2d at
329.
         Miller            also     argues         that       he was prejudiced                      by Moe's failure                   to
properly          serve           his     counsel.            We observe            at the outset                     that     Miller
cites      to no authority                     which recognizes                   this         argument         as a separate
basis      for        relief            from     judgment           under         Rule         60(b),        M.R.Civ.P.                 In
Phennicie             v.     Phennicie               (1979),        185 Mont.                 120,     604 P.2d              787,     for
example,          the issue              of improper             service          on a party's                 attorney            under
Rule      5(b),            M.R.Civ.P.,               was raised              in     the         context          of         a direct
appeal.           In any event,                   Miller's           Rule 5(b)                argument          is     unavailing
here;      in this           case,        an attorney               representing                Miller         was served             and
nothing          in        the     rule         addresses            the     point             in     time      at         which      one
attorney          replaces              another         for      service          purposes.
         Miller's            reliance            on Fonk v. Ulsher                  (1993),            260 Mont.             379, 860
P.2d 145,             and Shields               v.      Pirkle       Refrigerated                    Freight         Lines,          Inc.

(1979),          181 Mont.              37, 591 P.2d 1120, also                       is misplaced.                    Both cases
addressed             the issue            of the validity                  of initial                service          of process
under Rule 4D, M.R.Civ.P.                                 Neither         the validity                 of initial             service
nor Rule 4D is                    at issue           in the present                case.
                                                                    8
       We hold     that    the District          Court      did not abuse its         discretion
in denying      Miller's     motion        for   relief      from summary judgment.
       Affirmed.
       Pursuant     to Section        I,    Paragraph        3(c),     Montana Supreme Court
1988 Internal       Operating     Rules,         this     decision     shall   not be cited          as
precedent    and shall      be published           by its     filing    as a public       document
with   the Clerk      of the Supreme Court                and by a report        of its     result
to Montana Law Week, State                 Reporter       and West Publishing          Company.




We concur:




                                                   9
