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Shultz v. Hooks2/1/1994
, 51 St.Rep. 34
Submitted on Briefs November 5, 1993.
This is an appeal from an order of the District Court of the Eleventh Judicial District, Flathead County, which granted a default judgment to plaintiff, awarded compensatory damages in the amount of $36,857.81, awarded punitive damages in the amount of $50,001.00 and also awarded costs to plaintiff. We reverse and remand.
The sole issue for this Court's review is whether Ted O. Lympus, the district judge in this case, should have disqualified himself from presiding over the case.
This is an attorney malpractice action brought by plaintiff Frank R. Shultz, Jr. (Shultz) against defendant Patrick Hooks (Hooks) based on Hooks' representation of Shultz. Shultz retained Hooks to represent him in an action against his father, Frank R. Shultz, Sr., concerning his guardianship and management of monies received on behalf of Shultz as a result of a personal injury settlement when Shultz was a minor.
Shultz filed this malpractice action against Hooks on August 7, 1992. Hooks was personally served with the summons and complaint on September 27, 1992. The Flathead County Clerk of Court entered Hooks' default on October 22, 1992, for failure to plead or otherwise defend within the time allowed by the Montana Rules of Civil Procedure.
On December 30, 1992, a statement of damages was mailed to Hooks. On January 12, 1993, the District Court held a hearing on the matter and granted Shultz' motion for default judgment. The court awarded compensatory damages to plaintiff in the amount of $36,857.81 and punitive damages in the amount of $50,001.00, based on Shultz' motion for default judgment which was supported by his affidavit, testimony and the complaint. The District Court also awarded costs in the amount of $160.00 to Shultz. Hooks did not appear.
On March 8, 1993, after three writs of execution were executed against him, Hooks filed a Motion for Relief from Judgment under Rule 60(b), M.R.Civ.P., supported by an affidavit signed by his counsel. Hooks based his motion for relief from the judgment in part on the court's power to grant such relief for "excusable neglect" under Rule 60(b)(1), M.R.Civ.P., and in part on his contention under Rule 60(b)(6), M.R.Civ.P., that Judge Lympus should have recused himself from this case. The District Court allowed the 45 days permitted for a ruling on a Rule 60(b), M.R.Civ.P., motion to expire and the motion was therefore deemed denied under Rule 60(c), M.R.Civ.P.
In Maulding v. Hardman (1993), 257 Mont. 18, 25, 847 P.2d 292, 297, we stated:
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. In that instance, the party is not entitled to relief under subsection (6) based on the same facts or circumstances. Here, however, the fact that Hardman requested relief under subsections (1) and (3) and also under subsection (6) is not fatal. Our recent opinion in Koch v. Billings School Dist. No. 2 (1992), 253 Mont. 261, 833 P.2d 181, . . . where we said that the plaintiff should have chosen between subsection (5) and (6) because they are mutually exclusive, illustrates this. The plaintiff's failure to make this choice did not prevent the District Court or this Court from determining which subsection was proper. We conclude that in this case Hardman's motion should have been based on subsection (6), and we will analyze it under that subsection alone.
Here, too, we decline to address the appeal in relation to the court's ruling on "excusable neglect" and base our decision to reverse the District Court on R
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