                                                                                            June 10 2009


                                          DA 07-0698

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2009 MT 204



ANN V. BARTELL, Personal Representative
of the Estate of Forbes Bartell,

              Plaintiff and Appellant,

         v.

KATIE ZABAWA,

              Defendant and Appellee.



APPEAL FROM:            District Court of the Eighth Judicial District,
                        In and For the County of Cascade, Cause No. CDV 04-1154
                        Honorable Kenneth R. Neill, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        R. J. “Jim” Sewell, Jr. and Bruce M. Spencer, Smith Law Firm, Helena,
MT

                For Appellee:

                        J. Michael Young, Bronson, Luinstra, Rothwell & Young, Great Falls, MT



                                                    Submitted on Briefs: October 22, 2008

                                                               Decided: June 10, 2009




Filed:

                        __________________________________________
                                          Clerk
Justice Brian Morris delivered the Opinion of the Court.

¶1     Forbes Bartell (Bartell) and Katie Zabawa (Zabawa) were involved in a car

accident in October of 2001. Bartell sued Zabawa in 2004. The District Court entered a

default judgment on May 31, 2006, in favor of Bartell in the amount of $101,300. The

District Court later set aside the default judgment against Zabawa. Bartell appeals and

we affirm.

¶2     Bartell’s appeal presents the following issue: Did the District Court manifestly

abuse its discretion in setting aside the default judgment pursuant to Rule 60(b)(6)?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3     Zabawa rear ended Bartell on October 24, 2001, while Bartell waited for children

to cross the street. Zabawa reported the accident to her local insurance provider the next

day. Safeco, Zabawa’s insurance carrier, made numerous attempts to investigate and

adjust Bartell’s personal injury and property damages claims. In fact, Safeco paid some

of Bartell’s medical bills and reimbursed him $2,200 for the damage to his pickup.

¶4     Safeco’s activity log indicates no fewer than thirty-four written and telephone

contacts with Bartell, attempting to obtain information needed to settle the claim,

between October 29, 2001, and June 21, 2004. Bartell never provided most of the

requested information to Safeco. Bartell never informed Safeco that he was represented

by counsel. Safeco eventually offered Bartell $500 as a final settlement offer. Safeco

sent a letter to Bartell on June 21, 2004, informing him that he needed to reply within



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thirty days or Safeco would consider the claim closed. Safeco’s letter listed a return

address of a post office box in Seattle, Washington. Safeco received no response.

¶5    Bartell filed an action on October 11, 2004, and served a summons upon Zabawa

personally on November 29, 2004. Zabawa gave the papers to her local agent. The local

agent attempted to fax the documents to Safeco. Safeco claims that it never received the

complaint at its regional office. The clerk of court entered a default against Zabawa on

January 3, 2005. No activity took place on the action for nearly a year and a half. This

inactivity prompted the court to issue an order to show cause why the complaint should

not be dismissed for lack of prosecution. Bartell filed a status report in which he

informed the court that the clerk of court had entered a default against Zabawa. Bartell

further informed the court that he had scheduled a hearing to present damages and ask the

court to enter a default judgment. The court entered a default judgment against Zabawa

on May 31, 2006, after holding a hearing to determine the amount of damages.

¶6    Bartell presented various medical bills at the hearing to support his claim of

damages. Bartell had not submitted most of these medical bills to Safeco. The court

inquired into Safeco’s absence from the proceedings. Bartell’s counsel replied “they just

fell off the map. I don’t know. We communicated with them.” Bartell’s counsel further

claimed that he had asked Safeco to accept service of the complaint and that Safeco had

declined. Bartell’s counsel surmised that Zabawa may have failed to turn over the

summons and complaint to Safeco. Bartell’s counsel conceded that he did not know what



                                           3
had happened, but added “I think after this is over we’ll find out probably.” Bartell’s

counsel never mentioned Safeco’s thirty-four written and telephone contacts with Bartell.

Bartell’s counsel also failed to mention that Safeco had paid some of Bartell’s medical

bills and had reimbursed Bartell for $2,200 to cover the cost of repairs to his pickup. The

court awarded $1,300 in medical expenses and $100,000 in general damages for total

judgment of $101,300.

¶7     Bartell’s counsel next sent a letter to Safeco on October 3, 2006, demanding

payment on the default judgment. Bartell sent the letter to a post office box in Spokane,

Washington. Safeco claims that it never received this letter, or a second letter from

Bartell’s counsel sent to the same post office box. Safeco contends that Bartell’s counsel

sent the letter to an incorrect address. Bartell died in April 2007. Safeco finally received

a copy of Bartell’s demand letter on September 18, 2007, and started its investigation into

the incident. Bartell’s counsel sent this third letter on behalf of Bartell’s estate to Safeco

at a street address in Liberty Lake, Washington.

¶8     Wade Clutter (Clutter), the Safeco representative assigned to the case, determined

that Safeco had not received any of the aforementioned documents, including the

summons, the complaint, or the demand letters. Clutter speculates that Safeco’s local

agent in Great Falls had failed to include a proper heading on the cover sheet when he

attempted to fax the complaint and summons to Safeco in 2004. Clutter further alleges

that, as a result, the summons and complaint did not make it into Safeco’s claim file. He



                                             4
contends that Safeco had no contact from Bartell after Safeco sent its letter of June 21,

2004, notifying Bartell that it would close the file if Bartell failed to respond.

¶9         Safeco filed a motion to set aside the default judgment pursuant to M. R. Civ. P.

55(c) and 60(b), on the grounds of mistake, inadvertence, and excusable neglect. Bartell

objected on the grounds that the motion was untimely and that the underlying

circumstances did not rise to the level of excusable neglect. The District Court ultimately

granted Safeco’s motion pursuant to M. R. Civ. P 60(b)(6). The court concluded that

relief would have been appropriate under M. R. Civ. P (60)(b)(1), but the 60 day appeal

period had passed. The court instead relied upon M. R. Civ. P. 60(b)(6), which contains a

time limit of “within a reasonable time,” and provides for “any other reasons justifying

relief.”

                                 STANDARD OF REVIEW

¶10        The principle that “every litigated case should be tried on the merits and thus

judgments by default are not favored” guides this Court in considering motions to set

aside default judgment. Essex Ins. Co. v. Moose’s Saloon Inc., 2007 MT 202, ¶ 17, 338

Mont. 423, 166 P.3d 451. We will reverse a decision to set aside a default judgment only

upon a showing of manifest abuse of discretion. Essex, ¶ 17. A manifest abuse of

discretion is one that is “obvious, evident, unmistakable.” St. James Healthcare v. Cole,

2008 MT 44, ¶ 21, 341 Mont. 368, 178 P.3d 696.

                                        DISCUSSION

¶11        Did the District Court manifestly abuse its discretion in setting aside the
                                               5
       default judgment pursuant to Rule 60(b)(6)?

¶12    The manifest abuse of discretion standard of review provides the framework

through which we must evaluate the District Court’s decision to set aside the default

judgment. The District Court entered the default judgment in the first instance. The

District Court, in turn, evaluated the claims by Bartell and Safeco, and determined the

existence of extraordinary circumstances that supported setting aside the default

judgment that it had entered. The District Court relied upon M. R. Civ. P. 60 (b)(6). We

must conclude that the District Court obviously, evidently, and unmistakably abused its

discretion in setting aside the default judgment in order to reverse.

¶13    In this regard, we further note that the record contains no transcript of any of the

hearings in this matter.      As a result, we must rely upon the District Court’s

representations of what occurred and what was said. M. R. App. P. 8(2) imposes the duty

on the appellant to provide the Court with a sufficient record on which to decide the

issues on appeal. This duty includes requesting any transcripts, or portions of transcripts,

necessary to decide the appeal. M. R. App. P. 8(3). We therefore evaluate this appeal

based upon the record presented by the parties.

¶14    Safeco cited M. R. Civ. P. 55(c) and 60(b)(1) & (6) in seeking to set aside the

default judgment. The District Court recognized the timeliness issue posed by the 60 day

appeal time for claims under M. R. Civ. P. 60(b)(1). The court found, however, that the

circumstances involved here warranted application of the more flexible “within a



                                             6
reasonable time” standard contained in 60(b)(6). The court nevertheless first proceeded

to analyze Safeco’s motion under the standards for relief for judgment under subsection

(1). These standards require the court to evaluate (1) whether the defendant proceeded

with diligence, (2) whether the defendant can establish excusable neglect, (3) whether the

judgment would affect the defendant injuriously, and (4) whether the defendant has a

meritorious defense. Kootenai Corp. v. Dayton, 184 Mont. 19, 26, 601 P.2d 47, 51

(1979).

¶15    Most of the District Court’s analysis focused on the issue of excusable neglect

with a summary evaluation of the remaining three factors. The court considered the

injury to the defendant to be established simply by the size of the default judgment in this

case. The court acknowledged that liability seemed “fairly clear,” but questioned the

$100,000 in general damages in light of the concession by Bartell’s counsel at the default

hearing that a jury “might come in in the $25,000 range.”          The court deemed this

concession to confirm the existence of a meritorious defense by Safeco to a large portion

of the $100,000 award of general damages.         The court also concluded that Safeco

proceeded with diligence in that Safeco retained counsel and filed the motion to set aside

the default “promptly upon receipt of the September 12, 2007, letter.”

¶16    With respect to the issue of excusable neglect, the court relied mainly upon this

Court’s decision in Blume v. Metropolitan Life Ins. Co., 242 Mont. 465, 791 P.2d 784

(1990). The plaintiffs in Blume served the complaint and summons on the Insurance



                                            7
Commissioner. The Insurance Commissioner, in turn, mailed the documents to the

defendant insurance company. The defendant insurance company had no record of ever

receiving the documents. The court in Blume ordered the default set aside on the grounds

that “[n]egligence or inadvertence directly traceable to a party litigant or his attorney, no

less excusable than that disclosed by this record, has many times been held sufficient to

warrant the opening of a default.” Blume, 242 Mont. at 469, 791 P.2d at 787. The

District Court found Blume “compelling” in light of the fact that the question of what

happened to the complaint and summons in each case “remains a mystery.” Thus, the

District Court considered it “significant” that relief under subsection (1) would have been

available to Safeco, but for the time bar.

¶17    The court evaluated Safeco’s motion to set aside the default under M. R. Civ. P.

60(b)(6), once it determined that Safeco would have been entitled to relief from the

default pursuant to subsection (1), but for the time bar. The court compared the similarity

of facts here and those presented in Maulding v. Hardman, 257 Mont. 18, 847 P.2d 292

(1993). In Maulding, plaintiff’s counsel failed to maintain contact with the insurer and

comply with its requests for information. Plaintiff filed a complaint and obtained a

default judgment without ever having contact with the insurer regarding the action.

Plaintiff contacted the insurer only after the court had issued a default judgment, the time

for appeal had expired, and payment had been sought. Maulding, 257 Mont. at 25-26,

847 P.2d at 297.



                                             8
¶18   The District Court cautioned that it found “nothing remotely approaching

misconduct” on the part of Bartell’s counsel. The court noted, however, the “similarity

of facts.” For instance, the court discussed the fact that Bartell, before he retained

counsel, had been dealing directly with Safeco. Safeco even paid some of Bartell’s bills.

These facts prompted the court to conclude that Bartell “was looking to Safeco for

recovery.” The court also determined that Maulding suggests that a court must consider

prejudice to the parties. The court in Maulding concluded that any prejudice to the

parties resulted from plaintiff’s counsel’s own doing. Plaintiff’s counsel had made a

demand one week after the accident, had failed to respond to requests for information,

and had not filed the action until a year and a half later. Maulding, 257 Mont. at 27, 847

P.2d at 298-99. Plaintiff’s counsel also delayed service on the complaint for forty days

and did not seek entry of default for another two months. Maulding, 257 Mont. at 27,

847 P.2d at 299.

¶19   The District Court highlighted the similarities with Maulding. The court described

Bartell’s counsel as “apparently never in a hurry to move the matter along.” The court

admitted to not knowing when Bartell retained his counsel, but noted that Bartell’s

counsel had not filed the action until “just days before the Statute of Limitations would

have run.” The court further admitted that Bartell’s counsel timely had perfected service

and obtained entry of default. The court cited, however, the fact that “another almost

year and one half” had passed before counsel requested a hearing on the default. Indeed,



                                            9
the District Court noted that its issuance of an order to show cause why the case should

not be dismissed had triggered Bartell into acting. The court further observed that Bartell

waited over four months before attempting to send Safeco a letter concerning the default

judgment, and nearly another year before sending any follow up letters. The court

attributed “much of the delay” to Bartell.

¶20    The court finally addressed any prejudice in light of the fact that Bartell had died

after the court issued the default judgment. The court referred to the fact that the accident

had taken place in 2001 and noted all of the intervening factors during the six-year period

after the accident. The court concluded that it could not overlook the prejudice to Safeco

in allowing the default judgment to stand. The court relied on Maulding to support its

conclusion that prejudice to a third party constitutes a proper consideration in M. R. Civ.

P. 60(b) motions. Maulding, 257 Mont. at 26, 847 P.2d at 297.

¶21    The Dissent raises the issue that Zabawa has failed to demonstrate that none of the

other subsections of M. R. Civ. P. 60(b) apply. The Dissent points to a statement from In

re Marriage of Waters, 223 Mont. 183, 724 P.2d 726 (1986), that in order for a party to

modify a final judgment under Rule 60(b)(6), “he must first show that none of the other

five reasons of the rule apply.” Waters, 223 Mont. at 187, 724 P.2d at 729. It appears,

however, that the Court itself undertook the analysis of whether any of the reasons set

forth in M. R. Civ. P. 60(b)(1)-(5) applied to Waters. The Court simply found that

“[n]one of the other five reasons listed in the rule apply to this case.” Waters, 223 Mont.



                                             10
at 187, 724 P.2d at 729. The Court proceeded to evaluate the case under M. R. Civ. P.

60(b)(6), to determine whether extraordinary circumstances warranted relief. Waters,

223 Mont. at 187, 724 P.2d at 729.

¶22    None of the Court’s Rule 60(b)(6) cases decided over the succeeding twenty years

after Waters imposed any type of duty upon the moving party to demonstrate that none of

the reasons in subsections (1) through (5) applied to their case. See e.g. Schultz v. Hooks,

263 Mont. 234, 867 P.2d 1110 (1994); Karlen v. Evans, 276 Mont. 181, 190-91, 915 P.2d

232, 238; Bahm v. Southworth, 2000 MT 244, 301 Mont. 434, 10 P.3d 99; Skogen v.

Murray, 2007 MT 104, 337 Mont. 139, 157 P.3d 1143. It was not until Essex that the

Court interpreted the language in Waters to impose an affirmative duty upon the moving

party to demonstrate that “none of the other five reasons in Rule 60(b) apply.” Essex, ¶

21. This requirement forces a party to address portions of subsection (1) through (5) that

may not be connected remotely to their motion.

¶23    The Court in Essex noted that “inexplicably” the district court and opposing

counsel overlooked the fact that the moving party had not affirmatively addressed

subsections (1) though (5). Essex, ¶ 24. The lack of any explicit mention in the progeny

of cases listed above regarding the use of M. R. Civ. P. 60(b)(6) likely accounts for the

failure of the district court or the parties to raise the question of any affirmative duty by

the moving party to demonstrate that subsections (1) through (5) did not apply. Despite

no mention of any such affirmative duty for almost 20 years of cases, Essex resurrected



                                             11
from Waters what it interpreted to be an affirmative duty on the moving party to

demonstrate that no other subsections of Rule 60(b) applied. Similar to the Court in

Waters, we instead will evaluate whether any of the reasons in subsections (1) through

(5) would apply to Zabawa’s motion to set aside the default judgment. Waters, 223

Mont. at 187, 724 P.2d at 729.

¶24   The Dissent correctly notes that relief generally is available under M. R. Civ. P.

60(b)(6) “for situations other than those enumerated in the first five sub-sections of the

rule.” Montana Prof. Sports, LLC v. Natl. Indoor Football League, LLC, 2008 MT 98, ¶

54, 342 Mont. 292, 180 P.3d 1142, citing Matthews v. Don K Chevrolet, 2005 MT 164, ¶

17, 327 Mont. 456, 115 P.3d 201. In certain circumstances, however, either subsection

(1) or subsection (6) may apply, depending upon the particular nature and seriousness of

the action or inaction involved. Karlen, 276 Mont. at 190, 915 P.2d at 238.

¶25   This Court in Karlen conducted an extensive analysis of the interplay between

subsection (1) and subsection (6). The Court determined that in the case of counsel’s

mistake, inadvertence, misconduct, or neglect in the representation of a client either

subsection could apply “depending upon the facts, the nature and seriousness of the

mistake, inadvertence, misconduct or neglect involved.” Karlen, 276 Mont. at 190, 915

P.2d at 238. Relief could be available pursuant to M. R. Civ. P 60(b)(6) when a moving

party can meet the higher burden of demonstrating extraordinary circumstances, gross

neglect or actual misconduct, while showing that they were blameless and acted to set



                                            12
aside the default within a reasonable time. Karlen, 276 Mont. at 190, 915 P.2d at 238.

The Court left the decision on which subsection applies “to the sound discretion of the

trial court.” Karlen, 276 Mont. at 190, 915 P.2d at 238.

¶26   Counsel for the plaintiffs had led them to believe their case was progressing.

Counsel concealed from the plaintiffs the fact that the court had dismissed it. Karlen,

276 Mont. at 190, 915 P.2d at 238. The Court affirmed the district court’s decision to set

aside the judgment pursuant to subsection (6) in light of the “extraordinary

circumstances” presented. The Court concluded that attorney misconduct of an egregious

nature fell within the “any other reason” clause of subsection (6). Karlen, 276 Mont. at

190, 915 P.2d at 238.

¶27   As further noted by Karlen, the U.S. Supreme Court has recognized that the “other

reason” reason clause in subsection (6) of the federal counterpart to M. R. Civ. P 60(b)(6)

“vests power in courts adequate to enable them to vacate judgments whenever such

action is appropriate to accomplish justice.” Karlen, 276 Mont. at 190-91, 915 P.2d at

238 (quoting Klapprott v. United States, 335 U.S. 601, 614-15, 69 S. Ct. 384, 390

(1949)). We, too, adopt an interpretation of the “any other reason” clause of subsection

(6) that permits a court to vacate a judgment “whenever such action is appropriate to

accomplish justice.” We emphasize that a party seeking to set aside a judgment pursuant

to subsection (6) must do more than demonstrate that it would have prevailed under

subsection (1), but for the time bar. The party also must meet the higher standard set



                                            13
forth in subsection (6), that includes the presence of demonstrating extraordinary

circumstances that would justify the Court setting aside the judgment. Karlen, 276 Mont.

at 190, 915 P.2d at 238.

¶28    Finally the Dissent suggests that it agrees with the analysis in Fuller v. Quire, 916

F.2d 358 (6th Cir. 1990), that subsection (6) cannot be used to overcome a party’s failure

to comply with a time limitation. A closer reading of Fuller, however, demonstrates that

its reasoning fully supports the District Court’s action in this case. There the plaintiff

filed an action through counsel alleging a personal injury and the defendant answered the

complaint. Fuller, 916 F.2d at 359. The trial court dismissed the claim shortly thereafter

due to the failure by plaintiff’s counsel to appear for the “court’s docket call.” Fuller,

916 F.2d at 359. The plaintiff, represented by a different counsel, filed a motion to set

aside the dismissal pursuant to Fed. R. Civ. P. 60(b)(6). The trial court determined that

“the interests of justice” required reinstatement of the case. Fuller, 916 F.2d at 360.

¶29    The defendant argued on appeal that subsection (1) encompassed the plaintiff’s

motion to set aside the dismissal and that plaintiff had failed to comply with the time

limit in subsection (1). Fuller, 916 F.2d at 360-61. This failure, argued the defendant,

precluded the court from granting relief under subsection (6). The court first rejected the

notion that subsection (1) applied and instead agreed with the trial court that subsection

(6)’s broad drafting granted discretion to courts “to grant relief from judgment in unusual

situations.” Fuller, 916 F.2d at 361. The court affirmed the trial court’s decision to set



                                             14
aside the dismissal of the complaint pursuant to subsection (6). Fuller, 916 F.2d at 361.

¶30    Here the District Court initially analyzed Zabawa’s claim under M. R. Civ. P.

60(b)(1). The court ultimately granted relief under M. R. Civ. P. 60(b)(6), however, after

considering all of the factors leading to the default judgment. For these reasons, we do

not require a detailed analysis of subsections (2) though (5) of M. R. Civ. P. 60(b) in this

case as the record establishes that Zabawa is not trying to sneak her claim through

subsection (6). A successful M. R. Civ. P. 60(b)(6) motion requires that (1) the movant

demonstrate extraordinary circumstances, (2) the movant acted to set aside the judgment

within a reasonable time, and (3) the movant was blameless. Karlen, 276 Mont. at 190,

915 P.2d at 238; Essex, ¶ 25. The District Court compared the similarity of facts here

and those in Maulding in reaching its conclusion that setting aside the default judgment

was warranted.

¶31    We first review the District Court’s determination of extraordinary circumstances

that would justify relief. We agree with the District Court’s assessment that it found

“nothing remotely approaching misconduct” on the part of Bartell’s counsel. The record

does not document the date when Bartell retained counsel. We know, however, that

Safeco dealt directly with Bartell until the time it sent its last request for information on

June 21, 2004. We do not attribute to Bartell’s counsel any failure to respond to Safeco’s

request for information before June 21, 2004. We nevertheless cannot ignore the fact that

Safeco made no fewer that thirty-four attempts to obtain information for settling the



                                             15
claim between October 29, 2001, and June 21, 2004.

¶32    Safeco even paid some of Bartell’s medical bills and refunded Bartell $2,200 for

vehicle repair. The District Court concluded that Bartell “was looking to Safeco for

recovery” in light of these payments. Safeco informed Bartell in its final letter that it

would consider the matter closed if it received no response within thirty days. We cannot

escape the fact that Bartell’s failure to respond, regardless of whether represented by

counsel at the time, resembles the attorney’s failure to contact the insurer in Maulding.

Thus, we cannot conclude that the District Court committed a manifest abuse of

discretion in determining that extraordinary circumstances supported Safeco’s motion to

set aside the default. Essex, ¶ 17.

¶33    The second element under M. R. Civ. P. 60(b)(6) requires that the movant must act

to set aside the judgment within a reasonable period of time depending on the facts of the

case. Essex, ¶¶ 25, 32. Safeco claims that it first received notice of Bartell’s action when

it received the letter of September 12, 2007, from Bartell’s counsel. Bartell has failed to

present any evidence that Safeco had notice of this action before September 12, 2007.

Bartell also has failed to explain why he sent the first two demand letters to incorrect

addresses, but sent the third demand letter to Safeco’s correct address.

¶34    The District Court determined that Safeco had proceeded with diligence based on

the fact that Safeco retained counsel and filed the motion to set aside the default

“promptly upon receipt of the September 12, 2007, letter.” The District Court concluded



                                             16
that 10 days constituted a reasonable amount of time in light of the fact that the accident

had occurred six years earlier. Once again we cannot conclude that the District Court

committed a manifest abuse of discretion in determining that Safeco acted within a

reasonable amount of time when it moved to set aside the default judgment within 10

days of first receiving notice. Essex, ¶ 17.

¶35    The third element under M. R. Civ. P. 60(b)(6) requires the movant to be

blameless. Essex, ¶ 25. Zabawa promptly took the complaint and summons to her local

insurance agent after receiving them. The local insurance agent apparently attempted to

fax the complaint and summons to Safeco on November 30, 2004.                Safeco never

processed the complaint.

¶36    The question arises as to whether Safeco can be considered blameless in light of

the fact that its local agent received the summons and complaint from Zabawa. The

District Court determined that, like in Blume, what happened to the complaint and

summons here “remains a mystery.” The District Court proceeded, therefore, to evaluate

blamelessness in the context of the relative prejudice to the parties. The court determined

that Safeco would suffer prejudice if the court denied the motion to set aside the default.

In particular, the court noted that Bartell’s counsel opined at the hearing that a jury

“might come in around $25,000.” The court contrasted this prejudice to Safeco with any

countervailing prejudice to Bartell. Forbes Bartell died in April 2007.

¶37    Bartell cites the Court’s conclusion in Maulding that nothing indicated that any



                                               17
witness would be unavailable or that the plaintiff would be unable to present evidence as

a basis for affirming the default judgment. Maulding, 257 Mont. at 27-28, 847 P.2d 298-

99. Here, by contrast, Bartell contends that Bartell’s death creates severe evidentiary and

testimonial problems for the family. Safeco replies that Bartell’s family will be able to

testify as to their observations of Bartell’s condition and that Bartell’s medical records

may be admitted into evidence.

¶38    The District Court pointed out that Bartell’s counsel was “never in any hurry” to

get this case resolved. The District Court attributed much of the delay in resolving the

case to Bartell. Bartell fails to explain how the District Court abused its discretion in

reaching this conclusion. Bartell waited nearly three years after the accident to file his

complaint. Bartell waited nearly a year and a half after serving the complaint before

requesting a hearing on the default. Bartell waited four months after the court entered the

default before sending a demand letter to Safeco. Bartell waited another year before

sending any follow up letters to Safeco. These delays by Bartell undermine any notion

that the District Court committed manifest abuse of discretion in determining that any

prejudice to Safeco outweighed prejudice to Bartell. Essex, ¶ 17.

¶39    We agree with the District Court that Safeco would have been entitled to relief

pursuant to M. R. Civ. P. 60(b)(1), but for the 60 day time ban. As we noted earlier,

however, a district court may also consider whether relief may be granted under

subsection (b)(6) if the court finds that the additional considerations required to support a



                                             18
finding under subsection (b)(6) are present as well. A party seeking to set aside a

judgment pursuant to subsection (6) must do more than demonstrate that it would have

prevailed under subsection (1), but for the time bar. The party also must meet subsection

(6)’s higher standard by demonstrating the presence of extraordinary circumstances that

would justify the Court setting aside the judgment. Karlen, 276 Mont. at 190, 915 P.2d at

238.

¶40    We cannot conclude on the record presented here that the District Court

committed an “obvious, evident, unmistakable” abuse of discretion when it set aside the

default judgment pursuant to M. R. Civ. P. 60(b)(6). St. James Healthcare, ¶ 21.

¶41    Affirmed.

                                         /S/ BRIAN MORRIS



We Concur:


/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER

/S/ HOLLY BROWN
District Judge Holly Brown sitting for
Former Chief Justice Karla M. Gray




                                           19
Justice Patricia O. Cotter dissents.

¶42    I respectfully dissent. I would reverse and remand with instructions to reinstate

the default judgment against Zabawa.

¶43    Zabawa filed a motion to set aside default judgment on the exclusive grounds of

mistake, inadvertence, and excusable neglect pursuant to Rule 60(b)(1). In response to

Bartell’s argument that Zabawa failed to file her motion within sixty days of judgment as

required by Rule 60(b)(1), Zabawa asserted the application of Rule 60(b)(6), allowing a

default judgment to be set aside for “any other reason.” She claimed that, based on

Maulding, Bartell’s improper conduct during claim processing supported her motion and

reliance on Rule 60(b)(6).

¶44    The District Court acknowledged that Zabawa argued the applicability of both

subsections (1) and (6) of Rule 60(b) and that she had not filed her motion within the

sixty days required by 60(b)(1). To determine whether the judgment should be set aside

under Rule 60(b), the court listed the four elements that a movant must prove: (a) that

she proceeded with diligence; (b) that her neglect was excusable; (c) that she has a

meritorious defense to her default; and (d) if permitted to stand, the judgment will affect

her injuriously. Kootenai Corp. v. Dayton, 184 Mont. 19, 26, 601 P.2d 47, 51 (1979).

Applying these elements to the facts of Zabawa’s case, but neglecting to address

subsection (a), the District Court determined that Zabawa had satisfied subsections (b)

through (d), and concluded that “but for” her failure to file her motion within the



                                            20
sixty-day time limit, Zabawa would have prevailed in having the judgment set aside

under Rule 60(b)(1).

¶45    The court then proceeded to apply Rule 60(b)(6) which requires movant to

demonstrate (1) extraordinary circumstances including gross neglect or actual misconduct

by an attorney; (2) that she acted to set aside the judgment within a reasonable time

period; and (3) that she was blameless. The court, relying on Maulding, concluded that

“given the circumstances involved here, Rule 60(b)(6) may be invoked which contains a

time limit only of ‘within a reasonable time.’ ” In its ruling, the District Court appeared

to analyze only one of the three elements to be considered in a Rule 60(b)(6) analysis but

nonetheless concluded that setting aside the default judgment was appropriate. I believe

the District Court’s errors were two-fold: its initial error was to evaluate the case under

Rule 60(b)(6) at all, but, having chosen to do so, it erroneously failed to consider all three

required elements. I address only the court’s initial error in this dissent.

¶46    We have repeatedly held that relief is available under Rule 60(b)(6) only for

reasons other than those enumerated in the first five subsections of the rule. In re

Marriage of Waters, 223 Mont. 183, 724 P.2d 726 (1986); Koch v. Billings School Dist.

No. 2, 253 Mont. 261, 833 P.2d 181 (1992); Essex. In other words, if the circumstances

underlying the default judgment raise grounds covered under Rule 60(b)(1)-(5), Rule

60(b)(6) is not available for application. In fact, this Court reiterated this principle just

last year, in an Opinion written by the author of this Opinion. In Profess. Sports v. Nat.



                                              21
Indoor Foot. League, 2008 MT 98, ¶ 54, 342 Mont. 292, 180 P.3d 1142, we said:

             Relief is available under M. R. Civ. P. 60(b)(6) “for situations other
      than those enumerated in the first five subsections of the rule.” Matthews v.
      Don K Chevrolet, 2005 MT 164, ¶ 17, 327 Mont. 456, ¶ 17, 115 P.3d 201,
      ¶ 17 (internal citations omitted). We adopted in Matthews the U.S.
      Supreme Court’s interpretation of this rule. Matthews, ¶ 17. The U.S.
      Supreme Court explained that “[i]n simple English, the language of the
      ‘other reason’ clause [of Rule 60(b)(6) is] for all reasons except the five
      particularly specified [in Rule 60 (b)(1)-(5)] . . . .” Klapprott v. U.S., 335
      U.S. 601, 614-15, 69 S. Ct. 384, 390, 93 L. Ed. 266 (1949).

Given this correct statement of the law, I cannot understand or agree with the Court’s
decision to affirm the District Court’s resort to Rule 60(b)(6) because relief would have
been available under Rule 60(b)(1), but for the time bar. Opinion, ¶¶ 17 and 39.
¶47   In Essex, we explicitly stated that “before a party will be allowed to modify a final

judgment under Rule 60(b)(6), he must first show that none of the other five reasons in

Rule 60(b) apply.” Essex, ¶ 23 (citing Waters, 223 Mont. at 187, 724 P.2d at 729)

(examining the meaning of the “other reason” language in Rule 60(b)(6)). In Waters, the

ex-wife sought to modify a marital dissolution decree approximately four years after it

was entered. She argued application of Rule 60(b)(5) or (6), and asked that the decree be

modified to allow her to receive the retroactive benefits of the Uniformed Services

Former Spouses’ Protection Act. This was an issue of first impression for this Court. We

determined that none of the reasons set forth in Rule 60(b)(1)–(5) applied to Waters. We

then evaluated her case under Rule 60(b)(6) and concluded that extraordinary

circumstances existed. We therefore granted Waters the relief she sought. However, we

then announced a new prospective rule, stating that “before a party will be allowed to


                                           22
modify a final judgment under Rule 60(b)(6), he must first show that none of the other

five reasons in Rule 60(b) apply, and he must also demonstrate extraordinary

circumstances in his case which justify relief.” Waters, 223 Mont. at 187, 724 P.2d at

729 (emphasis added).

¶48    The Waters ruling is supported by the language of the statute which provides in

relevant part:

       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.

Rule 60(b)(1)-(6). As noted in Koch, 253 Mont. at 265, 833 P.2d at 183, the statute

clearly uses the word “or” at the end of subsection (5), which means that a movant may

not obtain relief under 60(b)(6) if the reason for seeking such relief is listed in

60(b)(1)-(5).

¶49    This is not a difficult process to apply. Simply stated, if the reasons for the motion

to set aside a judgment are listed in subsections (1)–(5) and meet the criteria established

in case law addressing those subsections, the district court renders its ruling based on the

requirements of those subsections, including but not limited to any applicable filing

                                             23
deadline. Only after establishing that none of the reasons in subsections (1)–(5) apply to

a movant’s claim, does the district court even consider subsection (6).

¶50    Applying this rule to the case at bar, Zabawa initially argued that subsection (1)

applied to her case. However, upon being challenged for missing the sixty-day filing

deadline, she argued that subsection (6) could be used to grant her relief. The District

Court appears to have concluded that Safeco’s failure on Zabawa’s behalf to answer

Bartell’s complaint constituted a mistake, was inadvertent, and/or qualified as excusable

neglect under Rule 60(b)(1). The court then evaluated the case under the four elements

listed above in ¶ 44 that a movant must show to obtain relief, and concluded that Zabawa

had satisfied those elements. I believe the court erred in doing so. Having established

that Zabawa’s claim was a subsection (1) claim, the court was required to deny her

motion for failing to meet the sixty-day deadline imposed on subsection (1) claims. Once

it was clearly established that the reasons in subsection (1) applied, subsection (6) was no

longer available for application. The District Court’s failure to do this, in my opinion,

was an abuse of discretion and effectuated an end run around the sixty-day limit imposed

on subsection (1) claims. So, too, does this Court err in affirming the District Court’s

decision.

¶51    There is no indication that Rule 60(b)(6) was intended to provide an opportunity

for movants who missed the sixty-day deadline set forth in subsections (1)–(3). If such

was the Legislature’s intention, why impose a sixty-day deadline at all? In Fuller v.



                                            24
Quire, 916 F.2d 358 (6th Cir. 1990), the Sixth Circuit Court of Appeals addressed this

conundrum in the context of federal Rule 60(b) which contains a one-year deadline as

opposed to our statute’s sixty-day deadline. The Circuit Court stated:

       Rule 60(b)(1) authorizes the trial court to grant relief for “mistake,
       inadvertence, surprise, or excusable neglect,” but limits the exercise of that
       power to one year. Rule 60(b)(6) permits the court to grant relief from a
       judgment for “any other reason justifying relief from the operation of the
       judgment.” There is no time limit on the exercise of the court’s power
       under Rule 60(b)(6), except that the motion for relief from the judgment
       must be made “within a reasonable time.”
              This court has held that 60(b)(6) is to be used “only in exceptional or
       extraordinary circumstances which are not addressed by the first five
       numbered clauses of the Rule.” Hopper v. Euclid Manor Nursing Home,
       867 F.2d 291, 294 (6th Cir. 1989). Rule 60(b)(6) specifically states that the
       grounds under 60(b)(6) are “other” reasons justifying relief. This can mean
       nothing less than reasons not stated in 60(b)(1) and the other exceptions. A
       second reason why the plain language of the statute indicates that the
       exceptions must be mutually exclusive is that the time limitation placed
       upon the four discrete grounds stated in Rule 60(b)(1) would otherwise be
       rendered nugatory by action of 60(b)(6), which is without time limit.

Fuller, 916 F.2d at 360.

¶52    I agree with the analysis in Fuller and would conclude that Rule 60(b)(6) cannot

be used to overcome a movant’s failure to meet the time limitations on claims covered by

the reasons set forth in subsections 60(b)(1)–(3).

¶53    Zabawa and the District Court both rely on Maulding, which I find

distinguishable. However, to the extent Maulding implies that subsection (6) can be used

when subsections 60(b)(1)–(5) are applicable or after the sixty-day statute of limitations

has run, I would overrule Maulding.



                                             25
¶54    For the foregoing reasons, I would reverse the District Court and remand with

instruction to reinstate the default judgment against Zabawa. I therefore dissent.



                                                 /S/ PATRICIA COTTER


Justices James C. Nelson and Jim Rice join in the Dissent of Justice Patricia O. Cotter.



                                                 /S/ JAMES C. NELSON
                                                 /S/ JIM RICE




Justice James C. Nelson, dissenting.

¶55    I dissent. The Court refuses to apply the plain language of M. R. Civ. P. 60(b) and

to follow well-established legal principles, and instead creates out of whole cloth a brand

new standard of analysis under this Rule. The Court’s approach will only sow confusion

in this area of law. While I join Justice Cotter’s dissent, I offer the following additional

discussion of the Court’s decision.

¶56    The Court contends that in Essex Ins. Co. v. Moose’s Saloon, Inc., 2007 MT 202,

338 Mont. 423, 166 P.3d 451, we “resurrected” from In re Marriage of Waters, 223

Mont. 183, 724 P.2d 726 (1986), an affirmative duty on the moving party to demonstrate

that no other subsections of Rule 60(b) apply before resorting to subsection (6)—as if to

say that this duty was announced in Waters and then mysteriously died during the

                                            26
intervening years. Opinion, ¶ 23. The duty, however, is implicit in Rule 60(b) itself and

has always been required. The Rule states that a court may relieve a party 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.

M. R. Civ. P. 60(b) (emphasis added).

¶57    By its terms, Rule 60(b)(6) applies to “other” reasons justifying relief. It is

self-evident that “other” refers to reasons not listed in subsections (1) through (5).

Klapprott v. United States, 335 U.S. 601, 614-15, 69 S. Ct. 384, 390 (1949) (equating

“the language of the ‘other reason’ clause” with “all reasons except the five particularly

specified”). Thus, in order to proceed under subsection (6), the movant must establish

that her reason is an “other” reason, i.e., one not specified in subsections (1) through (5).

The Court laments that this requirement “forces a party to address portions of subsection

(1) through (5) that may not be connected remotely to their motion.” Opinion, ¶ 22. But

that is exactly what subsection (6) requires before a party may invoke it. Cf. Epling v.

United States, 172 F.R.D. 220, 222 (W.D. Ky. 1997) (concluding under Fed. R. Civ. P.

60(b) that “in order to invoke the equitable relief afforded by clause (6) it is necessary to



                                             27
establish that such relief is unavailable under the earlier clauses of the rule” (citing

Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and

Procedure vol. 11, § 2864, 362 (2d ed. 1995))).

¶58    The Court announces that when a party fails to meet her duty of showing that none

of the first five subsections of Rule 60(b) applies, this Court will take on that task for her.

See Opinion, ¶ 23 (“[W]e instead will evaluate whether any of the reasons in subsections

(1) through (5) would apply to Zabawa’s motion to set aside the default judgment.”). I

cannot agree that it is this Court’s (or the trial court’s) job to do a party’s research and

analysis when she has utterly failed to comply with the plain terms of Rule 60(b). It is

well-established that “it is not this Court’s obligation to conduct legal research on

appellant’s behalf, to guess as to his precise position, or to develop legal analysis that

may lend support to his position.” State v. Doyle, 2007 MT 125, ¶ 28, 337 Mont. 308,

160 P.3d 516 (alteration and internal quotation marks omitted); see also In re Marriage

of McMichael, 2006 MT 237, ¶ 12, 333 Mont. 517, 143 P.3d 439 (“We repeatedly have

held that we will not consider unsupported issues or arguments.”). Accordingly, if a

Rule 60(b) movant resorts to subsection (6) without even attempting to show that her

reason is an “other” reason (i.e., that the first five subsections of the Rule are

inapplicable), then the proper course of action is to deny her motion, not to conduct the

omitted evaluation for her.

¶59    Adding further confusion to the analysis, the Court manufactures a new “sneak”



                                              28
standard for resorting to subsection (6). Specifically, the Court states that when a party

“is not trying to sneak her claim through subsection (6),” a detailed analysis of the other

subsections is not required. Opinion, ¶ 30. The origins of this standard are a complete

mystery, as the Court cites no authority for it. The Court also offers no insight into how a

trial court may evaluate whether a party is being “sneaky.” Does this require a

“sneakiness” hearing? Does the trial court need to enter a finding of fact, or can this

Court simply infer it from the record?       Who has the burden of demonstrating the

existence (or nonexistence) of “sneakiness”? What conduct constitutes improper

“sneaking” of a claim through subsection (6)? Today’s Opinion creates more questions

than it answers.

¶60    In any event, rather than attempt to show that the first five subsections of

Rule 60(b) were inapplicable, Safeco sought to show that its motion fit squarely within

the substantive elements of subsection (1)—i.e., that its motion was based on “mistake,

inadvertence, surprise, or excusable neglect.” The District Court agreed with Safeco, as

does this Court. Opinion, ¶ 39. In Karlen v. Evans, 276 Mont. 181, 915 P.2d 232 (1996),

we recognized that subsection (1) and subsection (6) are mutually exclusive. See Karlen,

276 Mont. at 186, 915 P.2d at 235 (“[A] party is precluded from relief under subsection

(6) when the facts or circumstances would bring the case under one of the first five

subsections of Rule 60(b).”); see also Liljeberg v. Health Services Acquisition Corp., 486

U.S. 847, 863 n. 11, 108 S. Ct. 2194, 2204 n. 11 (1988) (observing that “clause (6) and



                                             29
clauses (1) through (5) are mutually exclusive”). Thus, since Safeco’s motion falls

within the substantive elements of subsection (1), its motion clearly cannot be based on

“any other reason justifying relief” under subsection (6). See Klapprott, 335 U.S. at 613,

69 S. Ct. at 389 (observing that a party may “not avail himself of the broad ‘any other

reason’ clause of 60(b)” if his motion is grounded in subsection (1)).

¶61    In an entirely separate sentence of Rule 60(b), it is said that “[t]he motion shall be

made within a reasonable time, and for reasons (1), (2), and (3) when a defendant has

been personally served, whether in lieu of publication or not, not more than 60 days after

the judgment.” Here, Zabawa was personally served, and she delivered the papers to

Safeco’s local agent, who in turn forwarded the summons and complaint to Safeco.

Accordingly, because the procedural 60-day requirement indisputably applies to Safeco’s

motion, the motion should have been denied.

¶62    The District Court erred, and this Court errs, in refusing to acknowledge this fact.

In holding as it does here, the Court renders the procedural time bar a nullity because,

according to the Court, whenever a party’s motion falls under subsection (1) “but for” the

time bar applicable to that subsection, she may leap to subsection (6). Henceforth, after

today’s decision, there is no instance when the time bar applicable to subsections (1), (2),

and (3) would ever bar a Rule 60(b) motion, for the reason that a movant may simply

assert that “but for” the time bar, she could have proceeded under subsection (1), (2), or

(3) and, because the time bar prevents her from doing so, she may proceed under



                                             30
subsection (6) instead. Subsection (6), however, was never intended as a means of

avoiding the time bar applicable to subsections (1), (2), and (3). See Liljeberg, 486 U.S.

at 863 n. 11, 108 S. Ct. at 2204 n. 11 (“[A] party may not avail himself of the broad ‘any

other reason’ clause of 60(b) if his motion is based on grounds specified in clause (1)—

‘mistake, inadvertence, surprise or excusable neglect.’ Rather, ‘extraordinary

circumstances’ are required to bring the motion within the ‘other reason’ language and to

prevent clause (6) from being used to circumvent the 1-year limitations period that

applies to clause (1).” (emphasis added, some internal quotation marks omitted)).

¶63    As for the Court’s analysis under subsection (6), the Court first announces that a

court may vacate a judgment whenever doing so is “appropriate to accomplish justice,”

Opinion, ¶ 27—another amorphous and subjective standard (not unlike the Court’s

“sneak” standard, Opinion, ¶ 30) which renders the first five subsections of Rule 60(b)

superfluous, unless we are to believe that the first five subsections do not already

incorporate the concept of “justice.” But the Court goes on to acknowledge that in order

to prevail under subsection (6), the movant must show that extraordinary circumstances

exist which justify relief from the operation of the judgment, that she acted to set aside

the judgment within a reasonable period of time, and that she was blameless. Opinion,

¶ 30; Essex, ¶ 25. Indeed, the movant must be completely “faultless” for his or her

predicament, i.e., for failing to take any steps that would have resulted in preventing the

judgment from which relief is sought. See Pioneer Inv. Services Co. v. Brunswick



                                            31
Associates Ltd. Partnership, 507 U.S. 380, 393, 113 S. Ct. 1489, 1497 (1993); James

Wm. Moore et al., Moore’s Federal Practice vol. 12, § 60.48[3][b], 60-188 (3d ed.

2009). Here, Safeco goes to great lengths to blame everyone involved in this case except

the responsible party: itself. As noted, Zabawa was personally served with a summons

and complaint, she delivered these papers to Safeco’s local agent (just as she had done

when reporting the accident), and the local agent forwarded them to Safeco (just as he

had done with the accident report). Safeco, in turn, failed to process the paperwork and

failed to appear on the complaint. This scenario certainly is not “extraordinary,” and

these facts clearly do not establish that Safeco is blameless.

¶64    Yet, instead of focusing on these salient facts, Safeco and the Court engage in a

blame-shifting critique of the actions of Bartell and his attorney—e.g., Bartell’s failure to

respond to Safeco’s letters and his attorney’s failure to send letters to the correct address.

See Opinion, ¶¶ 31-33, 38. These actions, however, occurred before Bartell’s complaint

was filed and after the default judgment was entered. As such, they have no bearing

whatsoever on whether Safeco’s failure to process Bartell’s summons and complaint and

appear in court is excused by extraordinary circumstances for which Safeco is blameless.

Safeco just flat mishandled a run-of-the-mill daily task and is now trying to avoid the

consequences of its actions by redirecting the spotlight away from itself and onto totally

irrelevant conduct of Bartell and his attorney. Unfortunately, the Court follows Safeco’s

lead and not only blames Bartell for Safeco’s own failure to act on the faxed paperwork,



                                              32
but also concludes that Safeco, as a result of its own internal error, suffered more

prejudice than Bartell (who has since passed away). See Opinion, ¶¶ 36, 38. This

conclusion is untenable.

¶65   In sum, the rules governing the application of Rule 60(b) are well-established.

The Court simply refuses to follow them. Indeed, the Court acknowledges that “either

subsection (1) or subsection (6) may apply” to a given set of circumstances. Opinion,

¶ 24 (emphases added). The Court concludes that Zabawa’s motion meets the substantive

elements of subsection (1). Opinion, ¶ 39. Under the Court’s “either/or” rule, therefore,

subsection (6) cannot apply. Nevertheless, the Court affirms the District Court’s decision

to set aside the judgment under subsection (6).1 Opinion, ¶ 40.

¶66   In dismissing the 60-day time bar applicable to subsection (1) and in misapplying

the “extraordinary circumstances” and “blamelessness” requirements of subsection (6),

the Court’s decision renders these requirements nugatory and injects confusion into our

Rule 60(b) caselaw. For these reasons and based on the analysis provided in Justice




      1
         I note the Court’s contention that Fuller v. Quire, 916 F.2d 358 (6th Cir. 1990),
supports the District Court’s approach. Opinion, ¶ 28. Yet, as the Court points out, the
Fuller court “first rejected the notion that subsection (1) applied.” Opinion, ¶ 29.
Indeed, the Fuller court considered the substantive requirements of subsection (1) and
concluded that they did not apply. See Fuller, 916 F.2d at 360-61. That fact is a critical
distinction between Fuller and the present case. Having determined that subsection (1)
did not apply, the Fuller court turned to subsection (6). Here, however, the District Court
determined that subsection (1) did apply (but for the 60-day time bar). Accordingly,
there was no basis to turn to subsection (6), and the District Court erred in doing so.
Fuller does not support the District Court’s decision or this Court’s decision.
                                             33
Cotter’s dissent, I would reverse the District Court’s order and remand with instructions

to deny the motion to set aside the judgment.

¶67    I dissent.



                                                 /S/ JAMES C. NELSON



Justices Patricia O. Cotter and Jim Rice join in the Dissent of Justice James C. Nelson



                                                 /S/ PATRICIA COTTER
                                                 /S/ JIM RICE




                                            34
