Kathleen Brockman, Plaintiff-appellant, v. Sweetwater County School District No. 1, a Unified Schooldistrict, Defendant-appellee, 74 F.3d 1248 (10th Cir. 1996)

ORDER AND JUDGMENT¹ 

Before BRISCOE and LOGAN, Circuit Judges, and THOMPSON,^*  District Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Plaintiff Kathleen Brockman appeals from an order denying her Fed. R. Civ. P. 60(b) motion for relief from judgment. We affirm.

Plaintiff was employed by defendant Sweetwater County School District as a teacher until defendant terminated her contract in 1990. Plaintiff sued. Thereafter a dispute arose between the parties over whether they had entered an enforceable oral compromise agreement. The district court concluded they had and, on June 9, 1993, issued an order enforcing the agreement. It held the agreement was enforceable notwithstanding the statute of frauds. Brockman v. Sweetwater County Sch. Dist. No. 1, 826 F. Supp. 1328, 1333 (D. Wyo. 1993). After noting that we were not addressing the statute of frauds issue because plaintiff had not raised it, we affirmed. Brockman v. Sweetwater Sch. Dist. No. 1, No. 93-8052, 1994 WL 170795, at * * 3 n. 4 (10th Cir. May 5, 1994) ("Brockman I "), cert. denied, 115 S. Ct. 368 (1994).

On January 5, 1995, plaintiff filed a "motion to revise or rescind order enforcing compromise agreement to comply with state law." She contended that the compromise agreement was void under Wyoming's statute of frauds, Wyo. Stat. 1-23-105, because it could not be performed within one year and was not in writing.²  The district court treated the motion as one seeking relief from a judgment or order under Rule 60(b). The court denied the motion on the ground that plaintiff had not raised any new issues or presented any persuasive legal authority supporting the contentions raised, and no other reasons justified relief from the judgment.

Rule 60(b) provides that a party may be relieved from a final judgment or order for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud, 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 have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion must be filed within a reasonable time, and if based on the grounds under (1), (2), or (3), within one year after entry of the judgment. Rule 60(b).

While plaintiff did not rely on any provision of Rule 60(b) in her motion, she suggests in her brief that her motion may fall under Rules 60(b) (2), (3), or (6). However, Rules 60(b) (2) and (3) are unavailable because the motion was filed more than one year after entry of the order from which relief is sought.

"Rule 60(b) (6) gives the court a grand reservoir of equitable power to do justice in a particular case." Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 729 (10th Cir. 1993) (quotations omitted). Nevertheless, relief under Rule 60(b) (6) is warranted "only in exceptional circumstances." Johnston v. Cigna Corp., 14 F.3d 486, 497 (10th Cir. 1993), cert. denied, 115 S. Ct. 1792 (1995). We will affirm denial of a Rule 60(b) motion absent an abuse of discretion. Lyons, 994 F.2d at 727.

We conclude the district court acted well within its discretion in denying the motion. The ground for the motion was that the district court committed legal error by ruling that the compromise agreement did not have to comply with the statute of frauds. While we have recognized legal error as a basis for relief under Rule 60(b) (6) under very limited circumstances, see Van Skiver v. United States, 952 F.2d 1241, 1244-45 (10th Cir. 1991) (noting court has previously recognized legal error as ground for relief under Rule 60(b) (6) where there had been post-judgment change in law arising out of same accident as that in which plaintiffs were injured), cert. denied, 113 S. Ct. 89 (1992), plaintiff does not present this or any similar circumstance.

Rather, plaintiff's motion is nothing more than an attempt to obtain review of the district court's earlier ruling regarding the statute of frauds, which plaintiff did not challenge in Brockman I. However, Rule 60(b) (6) may not be used as a substitute for an appeal. Morris v. Adams-Millis Corp., 758 F.2d 1352, 1357 (10th Cir. 1985). Plaintiff claims that she did not raise this issue in her first appeal out of fear of upsetting the district court because of its comment that

[l]itigants will not be allowed to play fast and loose with this Court. The Court will not suffer a litigant to enter into an oral compromise on the record, and then at a later date repudiate that compromise by claiming that it never occurred or by invoking the statute of frauds.

Brockman, 826 F. Supp. at 1333. We conclude plaintiff's unjustified fear does not provide an exception to this rule.³ 

The judgment of the United States District Court for the District of Wyoming is AFFIRMED. The mandate shall issue forthwith.