                               No. 86-422
               IN TFE SUPREME COURT OF THE STATE OF MONTANA

                                   1987



MARY ELIZABETH KREIN,
                Plaintiff and Appellant,
        -vs-
RICHARD W. HEINEMAN,
                Defendant and Respondent.




APPEAL FROM:    District Court of the Seventh Judicial District,
                In and for the County of Dawson,
                The Honorable Byron L . Rohb, Judge presiding.
COUNSEL OF RECORD:
        For Appellant:
                 James L. Norris, Rismarck, North Dakota
        For Respondent :
                 Ira D. Eakin, Baker, Montana




                                   Submitted on Briefs:    Jan. 22, 1987
                                     Decided:   April 28, 1987

Filed: R P Q i!1987
             ~


                                                      --
                                   Clerk
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.

     Mary Elizabeth Krein appeals the July 28, 1986, order
and explanatory comment entered by the Seventh Judicial
District Court granting defendant, Richard W. Heineman's
motion for summary judgment. We affirm in part and reverse
in part.
     Mary Elizabeth and Richard were married for four and
one-half years prior to the May 4, 1981, decree dissolving
the marriage.      Richard is an attorney.    Mary Elizabeth
contends that at least seven attorneys refused to represent
her in the divorce action because Richard was an attorney.
From the record, it is unclear that all seven actually
refused to represent her.      Richard thereafter agreed to
obtain the divorce for the parties. He prepared the petition
for dissolution as well as Mary's response thereto. In her
response, Mary Elizabeth agreed " [t]hat the parties have
mutually divided all property they have acquired during the
marriage relationship and have entered into a fair and
equitable property settlement agreement . . ."
     Richard also prepared a property settlement agreement
wherein he agreed to pay Mary Elizabeth alimony consisting of
three $5,000 payments. The original agreement provided that
the obligation would end upon Mary Elizabeth's remarriage.
She refused to agree to that stipulation. Therefore, Richard
removed the language stating that payments would cease upon
Mary Elizabeth's remarriage, but continued to use the term
alimony to describe the payments.
     The property settlement agreement also provided that
Richard would pay all known outstanding obligations and debts
of the marriage, that each individual would thereafter be
solely responsible for his or her own obligations, and that
Mary Elizabeth relinquished all claims to any property in
Richard's possession in consideration for the personal
property she had received.
      Richard paid Mary Elizabeth $5,000 in February 1981, and
again in February 1982.      He refused to make the February
1983, payment as Mary Elizabeth had remarried. In response,
Mary Elizabeth pursued two legal remedies. On July 12, 1984,
she filed a motion in the original divorce action to set
aside the property settlement agreement, alleging that fraud
had been committed on the court. Also on July 12, 1984, Mary
Elizabeth filed the complaint in this action, requesting to
set aside the earlier property settlement agreement on the
basis of fraud.
      Although not denominated as such, the motion was a Rule
60 (b)(3), M.R.Civ.P., motion. Rule 60 (b)(3) motions are to
be filed within 60 days of service of notice of entry when
service of notice of entry is required by Rule 77 (dl,
M.R.Civ.P.    Rule 77 (d) requires that notice of entry of
judgment be served "upon all parties who have made an
appearance . . . ."    Mary Elizabeth appeared in the original
dissolution action, but was never served with notice of entry
of judgment. Therefore, the 60 days never commenced to run
and the July 12, 1984, motion was timely filed. Morrison v.
Higbee (Mont. 1983), 668 P.2d 1029, 1031-32, 40 St.Rep. 1031,
1034.
      Rule 60(b) motions must also be scheduled for hearing
within 10 days. Rules 60 ( c ) and 59, M.R.Civ.P.  The hearing
was held August 14, 1984, more than a month after the motion
was filed. The motion was denied August 17, 1984, because of
Mary Elizabeth's failure to set the hearing within ten days
of filing the motion.
      Although the motion was dismissed, the complaint still
existed. An amended complaint was filed February 4, 1986.
In addition to requesting that the property settlement
agreement be set aside for fraud, as had the first complaint,
the amended complaint alleged that Richard's conduct toward
Mary was legal malpractice and that it involved a conflict of
interest, a breach of his attorney fiduciary duty and
intentional or negligent infliction of emotional distress;
mental anguish; punitive damages; treble damages for an
attorney's deceit; attorney fees; and costs. Richard filed a
motion and brief for summary judgment on March 19, 1986. A
hearing on the motion was held July 22, 1986. At the close
of the hearing, defendant's motion was granted. The trial
judge determined that the original dissolution decree was in
full force and effect and res judicata with respect to the
issues raised by Mary Elizabeth.
     Mary Elizabeth now requests that this Court determine
whether the trial judge erred in granting Richard's motion
for summary judgment because the legal doctrine of res
judicata does not apply and because there are genuine issues
of material fact.
     Rule 60 (b), M.R.Civ.P., provides:
     On motion and upon such terms as are just, the
     court may       relieve  a   party   or    his   legal
     representative from a final judgment, order, or
     proceeding for the following reasons:    ...       (3)
     fraud (whether heretofore denominated intrinsic or
     extrinsic), misrepresentation, or other misconduct
                - .
     of an adverse party; ...     ----
                                  This rule does not limit
     the power - - court to entertain an independent
                  of a
     Z i o n to relieve a party - - a j u ~ m e n t ,order,
                                  from
     or ~roceedina,or 5 qrant relief to a defendant
     -                     0
     kotAactually-personally-notified as may be required
     by law, or to set aside - judgment - fraud upon
                                a           for
     the court,
     In Kamp Implement Co. v. Amsterdam Lumber, Inc. (19751,
166 Mont. 435, 441, 533 P.2d 1072, 1075, this Court held that
the last sentence of Rule 60(b), M.R.Civ.P.,       permits a
litigant to "obtain relief from a judgment obtained by fraud
either by a motion under Rule 6O(b), M.R.Civ.P., - by an
                                                    or
independent action, it does not state that a litigant may
pursue both remedies."     Although Mary Elizabeth filed the
Rule 60(b) motion and the independent action on the same day,
she elected to pursue the motion remedy first. The motion
might have provided a "plain, speedy, and adequate" remedy
for the fraud claim had the hearing been timely held. As in
Meyer v. Lemley (1929), 86 Mont. 83, 97, 282 P. 268, 272,
cited in Kamp Implement, 166 Mont. at 441, 533 P.2d at 1075,
     [alppellant had an adequate remedy, invoked it,
     lost it through [her] own fault   ...  [She] cannot
     be permitted, after having selected an appropriate
     and adequate remedy and having failed through [her]
     own fault to obtain relief thereby, to then harass
     [her] blameless adversary by pursuing another and
     different remedy. It is to the interest of society
     that litigation end;. ..
     Mary Elizabeth cannot, after wasting her opportunity to
pursue a Rule 60(b) remedy, use an independent action to drag
Richard back into court for the same purpose.
     However, the amended complaint in the independent action
also contains counts which are not precise, but involve
claimed negligence, legal malpractice and breach of fiduciary
duty by Heineman. The Rule 60(b), M.R.Civ.P., motion did not
cover those torts. They exist separate and independent from
any fraud which might have resulted in the granting of the
Rule 60 (b) motion.    We therefore remand this action for
further proceedings on the non-fraud issues raised in the
amended complaint.
     Affirmed in part and reversed in part.




                             Justice
                         No. 86-422
                                                          .   1.   -2''q",c'/y&-,,&'
                                                CLEFiK OF GYPSEid=: C ~ U R +
                                                   STATE O F FJ?J~~P:~A:~A
MARY ELIZABETH KREIN,
     Plaintiff and Appellant,
                                         1

RICHARD W. HEINEMAN,
     Defendant and Respondent.




       A change is required in the opinion issued in this cause
  by this Court on April 28, 1987, in order to more accurately
  reflect the law in Montana.
       IT IS HEREBY ORDERED that paragraph 3 on page 3 of the
   opinion be amended as follows.     The paragraph which now
   states:                          -
        Rule 60 (b) motions must also be scheduled for
        hearing within 10 days.      Rules 60(c) and 59,
        M.R.Civ.P. The hearing was held August 14, 1984,
        more than a month after the motion was filed. The
        motion was denied August 17, 1984, because of Mary
        Elizabeth's failure to set the hearing within ten
        days of filing the motion.
   shall become
        Rule 60(b) motions, at the time this motion was
        filed, had to be scheduled for hearing within 10
        days.   The specific hearing requirements have now
        been eliminated by Rule 59 (d), which in substance
        provides that if the court fails to rule within 45
        days of the filing oE the motion, the motion is
       'deemed denied; The hearing was held August 14,
        1984, more than a month after the motion was filed.
        The motion was denied August 17, 1984, because of
        Mary Elizabeth's failure to set the hearing within
        ten days of filing the motion.
              -

                       &
       DATED this a k a y of May, 1987.
