Stevens v. Murphy

• Decision Date: 23 April 1984
• Docket Number: No. 83-191,83-191
• Citation: 680 P.2d 78
• Parties: Eugene STEVENS, Appellant (Defendant), v. W.J. MURPHY, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 78

680 P.2d 78

Eugene STEVENS, Appellant (Defendant), v. W.J. MURPHY, Appellee (Plaintiff).

No. 83-191.

Supreme Court of Wyoming.

April 23, 1984.

Eugene Stevens, pro se.

John Burk, Casper, for appellee.

Before ROONEY, C.J., and THOMAS, ROSE, BROWN, and CARDINE, JJ.

CARDINE, Justice.

This is an appeal from an Order denying a Motion To Set Aside Judgment pursuant to Rule 60(b)(3), W.R.C.P. ¹ , the grounds of the motion being fraud and misrepresentation of the adverse party.

Appellant prepared and filed his own brief and appeared pro se in argument. The issues are not framed in his brief. From the sparse record before us, however, we conclude that the issue presented for our determination is:

Whether the trial court abused its discretion in denying appellant's motion.

This case was filed in the district court May 20, 1975. The lengthy, difficult proceeding involved depositions, discovery, appointment of a master, special findings, objections to findings and hearings, a trial to the court, and judgment. There was an appeal from the judgment to the Wyoming Supreme Court which affirmed in part, reversed in part and remanded the case for further proceedings consistent with the court's opinion, Murphy v. Stevens, Wyo., 645 P.2d 82 (1982). Mandate on Reversal or Modification issued June 8, 1982, and thereafter a modified judgment was entered and filed in the case.

Appellant filed his Rule 60(b) motion to set aside the modified judgment because of claimed fraud and misrepresentation of the adverse party. On August 16, 1983, the court, without hearing, entered an order denying appellant's motion. Although a hearing on motions is ordinarily a preferable mode of disposition, it is not mandated by the Wyoming Rules of Civil Procedure. The motion here presented nothing new nor anything not already considered by the court. When this fact is apparent from the motion and record, the court may, in its discretion, decide the question on the papers before it without a hearing. Alberger v. Harvison, Fla.App., 342 So.2d 537 (1977); Hopkinson v. State, Wyo., 679 P.2d 1008 (1984); 56 Am.Jur.2d Motions, Rules, and Orders § 23.

A Rule 60(b) motion is addressed to the sound discretion of the court, and its ruling will be reversed on appeal only if the trial court was clearly wrong. Gifford v. Casper Neon Sign Co., Inc., Wyo., 639 P.2d 1385 (1982); Atkins v. Household Finance Corporation of Casper, Wyo., 581 P.2d 193 (1978). The motion was here denied, and the question we must determine on appellate review is whether there was an abuse of discretion in the denial. McBride v. McBride, Wyo., 598 P.2d 814 (1979).

Where fraud and misrepresentation is relied upon as a ground for relief sought pursuant to a Rule 60(b) motion, it must be proved by clear and convincing evidence. Fraud is never presumed, and the burden of proof to clearly establish such fraud or misrepresentation is upon the party seeking relief. McBride v. McBride, supra, 11 Wright & Miller, Federal Practice and Procedure: Civil § 2860, pp. 188-189.

Appellant's Rule 60(b) motion in this case was twenty-six pages in length and there was attached to the motion as an exhibit a transcript of opposing counsel's argument in the supreme court consisting of an additional twenty pages. No other exhibits are attached. The motion relies upon excerpts from the transcript of testimony, exhibits in the trial, court records, findings of fact and conclusions of law of the trial court, the argument before the supreme court, and the supreme court's opinion in this case, to establish fraud and misrepresentation of the adverse party. In essence, appellant, in his brief and argument, interprets and weighs all of this testimony and evidence and concludes that the adverse party was guilty of fraud and misrepresentation. For example, appellant states that contrary to the general findings of the trial judge,

"* * * There absolutely never was at any time any partnership existing between defendant and Ralph L. Schauss. * * *"

And again appellant states:

"* * * The Wyoming Supreme Court has also decided that this was an illegal scheme concocted by defendant to subvert government regulations. Defendant states that such conclusion is absolutely incorrect; that he did not concoct any illegal scheme whatsoever * * *."

And, in paragraph eight of the motion, defendant states:

"On page 144, Volume I of the Trial Transcript, Murphy stated that at the time he, defendant and Schauss had the incorrectly alleged meeting in Denver * * * [concerning] nine coal prospecting permit applications * * * he was falsely accused of having prepared * * *."

And, in paragraph twelve, appellant complains that his attorney, in argument,

"* * * made * * * terribly untrue statements which were so damaging to defendant at the hearing before the Wyoming Supreme Court on November 18, 1981 * * *."

The above quotations from appellant's motion are representative of his effort to establish misrepresentation and fraud.

The entire motion is a review of the testimony, depositions, discovery, exhibits, and all that occurred in this difficult, complex trial. Appellant feels the result of the trial was wrong. Unsuccessful litigants often harbor these feelings. On this motion, appellant attempts to retry the case, relitigate the controversy, and asks the court to set aside its judgment and determine the controversy in his favor.

In this effort appellant must fail, for he has not established fraud by clear and convincing evidence. Here appellant presents nothing new. The trial court, on a motion...