file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-232%20Opinion.htm




                                                               No. 00-232

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                               2001 MT 63


                                JIM TIMIS and CONNIE TIMIS, both individually and

                                 on behalf of their minor daughter, CHARDEE TIMIS,

                                                      Plaintiffs and Appellants,

                                                                      v.

                                MARK YOUNG, JOHN YOUNG and ROSE YOUNG,

                                                    d/b/a ROSE'S DAY CARE,

                                                   Defendants and Respondents.

                          APPEAL FROM: District Court of the Eleventh Judicial District,

                                                In and for the County of Flathead,

                                      Honorable Katherine R. Curtis, Judge Presiding

                                                     COUNSEL OF RECORD:

                                                             For Appellants:

                              Frank B. Morrison, Jr., Morrisons, McCarthy and Baraban,

                                                         Whitefish, Montana

                                Milton Datsopoulos, Datsopoulos, MacDonald and Lind,

                                                          Missoula, Montana

                                                            For Respondent:

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-232%20Opinion.htm (1 of 5)3/27/2007 4:22:50 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-232%20Opinion.htm



                            Anita Poe, Garlington, Lohn and Robinson, Missoula, Montana

                                             Submitted on Briefs: October 19, 2000
                                                   Decided: April 18, 2001

                                                                    Filed:

                                    __________________________________________

                                                                     Clerk


Justice W. William Leaphart delivered the Opinion of the Court.

¶1 Jim and Connie Timis (Timises) brought suit in the Eleventh Judicial District Court
against Mark, John and Rose Young (Youngs) alleging negligence and negligent
supervision in the operation of their business, Rose's Day Care. The Timises agreed to
settle the case prior to trial but later repudiated the settlement. The District Court then
granted the Youngs' motion to enforce the settlement agreement and dismiss the
underlying action. The Timises' subsequent motion to set aside this order was deemed
denied when the District Court failed to rule on it within sixty days. The Timises now
appeal the order enforcing the oral settlement agreement, the dismissal of the case and the
denial of the motion to set aside. We affirm the rulings of the District Court.

                                                FACTUAL BACKGROUND

¶2 The Timises, on their own behalf and on behalf of their minor daughter, sued the
Youngs for damages arising out of an alleged incident at the Youngs' day care. The parties
held a voluntary settlement conference on November 11, 1998, with an experienced
attorney and mediator serving as settlement master. Both the Timises and the Youngs were
represented by counsel, and the conference resulted in an oral agreement settling the case.

¶3 Later, the Timises retained new counsel, repudiated the agreement and refused to sign
the settlement documents. Lengthy negotiations failed to resolve the impasse, so on April
29, 1999, the Youngs filed their motions to enforce the settlement agreement and dismiss
the underlying case. The Timises did not respond, and the District Court granted the
motions without objection on June 3, 1999.


 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-232%20Opinion.htm (2 of 5)3/27/2007 4:22:50 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-232%20Opinion.htm


¶4 On August 13, 1999, the Timises moved to set aside the District Court's order
dismissing the case and enforcing the settlement agreement. The District Court initially set
the matter for hearing on October 5, 1999, but, at the request of the Timises' counsel, who
planned to be on vacation on that date, the hearing was rescheduled for December 17,
1999.

¶5 When the hearing finally took place, the Timises acknowledged that their motion,
which did not cite any particular rule as authority, was based on Rule 59 or 60, M.R.Civ.P.
The District Court then questioned the parties as to why the motion should not be deemed
denied pursuant to the sixty-day limit of Rule 60(c), M.R.Civ.P. After receiving
supplemental briefing on the issue from both parties, the District Court held that the
motion was deemed denied and it had no further jurisdiction to address the merits. The
Timises now seek to overturn the District Court's denial of their motion to set aside as well
as the original order dismissing the case and enforcing the settlement agreement. They
raise two issues on appeal, which we restate as follows:

¶6 Issue 1. Does the District Court's time for ruling on a Rule 60(b) motion only begin to
run after notice of entry of judgment has been filed?


¶7 Issue 2. Can a settlement agreement be enforced against a minor who was not
represented by a guardian ad litem during the settlement negotiations?

                                                  STANDARD OF REVIEW

¶8 We conclude, after examining the record and the briefs of the parties, that neither of the
issues cited above were raised, briefed or argued in the District Court. This Court has
consistently ruled that it will not review issues raised for the first time on appeal. Unified
Indus., Inc. v. Easley, 1998 MT 145, ¶15, 289 Mont. 255, ¶15, 961 P.2d 100, ¶15; In re
Marriage of Hanni, 2000 MT 59, ¶ 44, 299 Mont. 20, ¶ 44, 997 P.2d 760, ¶ 44. The
reasons for the rule have been explained on a number of occasions:

        It is based on the principle that it is fundamentally unfair to fault the trial court for
        failing to rule correctly on an issue it was never given the opportunity to consider.
        Furthermore, it is unfair to allow a party to choose to remain silent in the trial court
        in the face of error, taking a chance on a favorable outcome, and subsequently assert
        error on appeal if that outcome . . . is unfavorable.


 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-232%20Opinion.htm (3 of 5)3/27/2007 4:22:50 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-232%20Opinion.htm



Day v. Payne (1996), 280 Mont. 273, 276-77, 929 P.2d 864, 866 (quoting 5 Am. Jur.
Appellate Review § 690, pp. 360-61 (1995)).

                                                             DISCUSSION

¶9 At the hearing on their motion to set aside, Timises' counsel argued that the District
Court should not be bound by the sixty-day limit because the settlement was
unconscionable; because their motion, originally captioned a "motion to set aside," should
be "more appropriately termed a Motion to Clarify the Order," and should not be subject
to the sixty-day limit; and, finally, because it was the District Court's own "voluminous
calendar" that prevented the hearing from occurring within the sixty-day time frame. On
the basis of these arguments the District Court denied the motion.

¶10 On appeal, the Timises abandon their old theories for a new one. Citing our recent
decision in In re Bell, 2000 MT 88, 299 Mont. 219, 998 P.2d 1163, they argue that the
sixty-day period for ruling on their motion to set aside never began to run. In Bell, we held
that the time limit for moving for relief under Rule 60(b) does not begin to run until notice
of entry of judgment has been filed. Bell, ¶ 14. The Timises assert that no notice of entry
of judgment was ever filed following the District Court's order to dismiss and argue that,
since the time limits for filing a Rule 60(b) motion did not begin to run, the court's sixty-
day time limits for ruling on their motion also did not begin to run. This argument greatly
expands on our holding in Bell, which dealt only with the time for filing a Rule 60(b)
motion. Moreover, it ignores the explicit direction in Rules 59 and 60(c), M.R.Civ.P., that
the court must rule on a 60(b) motion within sixty days from the time the motion is filed.
In any case, we decline to address the issue because it was not raised or ruled upon below.

¶11 The Timises also attempt to relitigate the Youngs' motions to enforce the oral
agreement and to dismiss, despite having failed to object to these motions below. They
now argue that a settlement agreement is unenforceable against a minor who was not
represented by a guardian ad litem during the settlement negotiations. Whatever the merits
of this argument, it was not raised below, and the Timises have waived their right to raise
it now.

¶12 The rulings of the District Court are affirmed.

                                               /S/ W. WILLIAM LEAPHART


 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-232%20Opinion.htm (4 of 5)3/27/2007 4:22:50 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-232%20Opinion.htm


                                                              We concur:

                                                     /S/ KARLA M. GRAY

                                                        /S/ JIM REGNIER

                                                   /S/ JAMES C. NELSON

                                               /S/ TERRY N. TRIEWEILER




file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-232%20Opinion.htm (5 of 5)3/27/2007 4:22:50 PM
