                    IN THE SUPRBNE COURT OF THE STATE OF MONTANA
                                                No. 93-549

WILLIAM G. SHULL, d/b/a                  GAMO,
        Plaintiff        and Appellant,                                           OPINION
   v.                                                                                         AND
FIRST INTERSTATE BANK OF GREAT FALLS,
a corporation;  ZYCOM, INC.:
CAPITAL DEVELCPMENT    COMPANY;
NORTH CENTRAL GAMING CO.,
a Montana corporation;                                                                 DE@09 1993
and THOMASC. HABETS,
        Defendants        and Respondents.


        Defendants/Respondents                   Zycom,      Inc.         and Capital           Development
Company (collectively                  Zycom) have filed              a motion           to    dismiss       the
September       21, 1993,         notice       of appeal      filed         by Plaintiff/Appellant
William       G. Shull         d/b/a     GAMO (Shull)             and for       attorney's           fees      in
bringing       this     motion.          Shull     opposes          the     motion      to     dismiss       his
first      notice      of appeal.          The procedural            facts      before        us,   together
with    the interplay          between the Montana Rules of Civil                             Procedure      and
the Montana           Rules    of Appellate            Procedure,          mandate       our     conclusion
that    the motion        to dismiss           should     be granted.
        In    June,      1993,        a jury     returned         verdicts        in     the     underlying
lawsuit       between         these     parties.           Shull      prevailed           against         First
Interstate          Bank of Great Falls;               the jury      returned        verdicts       in favor
of defendants          Zycom, Inc.,            North    Central       Gaming Company and Thomas
C. Habets.           No issue     was presented            to the jury          relating         to Capital
Development           Company.
         On August              4,     1993,       the      District        Court          awarded          Zycom,       Inc.
attorney's             fees     and costs          in defending            the action.                A judgment           was
issued        and notice             of entry       of that         judgment         was given         on August           25,
1993.
         On September                16, 1993, the District                        Court     entered         a judgment
as to all         parties,            including          Zycom, Inc.,          in the underlying                  action.
Zycom, Inc. Is counsel                        gave notice         of entry          of judgment             to Shull       and
First     Interstate                 Bank on the            same date.               Shull         served      notice       of
entry     of the September                     16 judgment           to all        parties         on September            20,
1993.         The next          day,        September         21, Shull            filed      a notice         of appeal
from the "final                 judgment          entered       in this        action         on the 25th day of
August,         1993."
         Defendants              First         Interstate           Bank and Thomas C. Habets                           filed
motions         to amend the September                        16 judgment             on September             30, 1993.
The Clerk         of Court            for     the Eighteenth             Judicial          District         transmitted
the record             on appeal            to this       Court        on October          27, based on Shull's
September          21 notice             of appeal           from the August                 25,     1993,     judgment.
The District             Court heard defendants'                        post-trial           motions         on November

9, and issued                 its      orders       on those           motions         on November             10,      1993.
Shull     filed         a second notice                  of appeal,         from the final                  judgment       and
post-trial             orders,         on November 17, 1993.
         Zycom argues                 that,      under       these      procedural            circumstances,               the
first         notice      of appeal             was premature              and of no force                   and effect,
and that          the         District          Court       was free          to     resolve          the     post-trial
motions.           We agree.
         It     is clear             that      the August           25 judgment             for     Zycom,       Inc.      and

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Capital        Development           Company was not a final                           and appealable               judgment
in     this        action.           In      an action              involving              multiple              claims       and
multiple         parties         such as the underlying                         case here,          a final         judgment
as to one or more but                      fewer      than        all         of the claims              or parties           may
be entered              only     upon an express                  determination                   by the         court      that
there      is no just            reason      for     delay     and upon an express                         direction          for
the entry          of judgment.               Rule 54(b),               M.R.Civ.P.             No such determina-
tion      and direction              were made here                     with        regard        to      the     August       25
judgment.               Thus,    no final           judgment            was issued           on August             25 and no
appeal        was available               pursuant        to Rule              l(b)(l),        M.R.App.P.                 Nor is
the court's             August      25 judgment            relating              to Zycom, Inc.                 and Capital
Development               Company appealable                 under            any of the             Rule        l(b)(2)       or
(3),     M.R.App.P.,             circumstances            authorizing                 appeal       from interlocuto-
ry     orders       or judgments.                   Therefore,                we hold       that        the      August       25,
1993, judgment                 was not appealable                 and Shull's              notice         of appeal         from
that     judgment--filed                 September         21, 1993--was                   premature            and without
legal      effect.
          Shull         argues     that      the notice             of appeal              was intended              to be a
notice        of     appeal         from      the      September                16,       1993,        final       judgment.
While this           may be so, the notice                    of appeal               specifically               states     that
the appeal           is from the August 25 judgment.                                   Given the importance                    of
specifying              orders/judgments                  being          appealed            from,             we will        not
rewrite         parties'         notices        of appeal               for     them.
         Moreover,             even if       this     Court       were inclined                 to read the notice
of     appeal        at    issue      as being            from          the     September            16,        1993,      final
judgment           in      the     action,          the    notice              of      appeal          still       would       be

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premature         and of         no effect.              As stated,                  the       final          judgment          was
entered        September          16,     1993,        and notice               of     entry            of     judgment         was
duly     served      by Shull           on September               20.         Shull          filed          the      notice        of
appeal      on September                21,    1993.           Two defendants                       filed          motions          to
alter     or amend within                10 days thereafter.
        Rules      52(b)     and 59(g),            M.R.Civ.P.,                  authorize               a party         to file
a motion       to alter          or amend a judgment                      within            10 days of notice                       of
entry     of judgment.             It    is clear        that        defendants'                  post-trial            motions
were timely          under        these       Rules.           Shull           argues,            however,             that     his
September         21 notice             of     appeal          divested               the         District            Court         of
jurisdiction            to accept         or determine                  those        motions.                We disagree.
        Rule 5(a)(4),             M.R.App.P.,            provides              that      if       a timely            motion        to
alter      or amend a judgment                    is    made pursuant                    to       Rule        52(b)      or     59,
M.R.Civ.P.,         a "notice            of appeal         filed          before            the disposition                    of     .
. . the motions            shall        have no effect.                   A new notice                       of appeal         must
be filed       within      the prescribed                time measured                     from the entry                 of the
order      disposing         of     the       motion.          .    .     ."         We have             not        heretofore
addressed         the      interplay           between             this        portion             of        Rule      5(a)(4),
M.R.App.P.,         the time period               for    filing           a notice             of appeal              contained
in Rule        5(a)(l),          M.R.App.P.,            and the           time         for         filing          motions          to
amend or alter             a judgment           pursuant             to the Montana                      Rules         of Civil
Procedure.           We do so here                by agreeing                  with         the      District           Court's
interpretation            that     district        courts           retain           jurisdiction                  to consider
and resolve         timely        motions       to alter            or amend filed                    pursuant           to Rule
52(b)     or 59(g),        M.R.Civ.P.             Stated           differently,                   a notice            of appeal
filed     prior      to the        expiration           of the time                   allowed            for       motions          to

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alter       or amend but followed                        by such motions                      timely      filed       shall,            as
stated          in Rule      5(a)(4),             M.R.App.P.,               have no effect.
          To hold otherwise                   would enable the party                            desiring          to appeal             to
totally         negate       the opposing                party's           ability            to file      timely          motions
to alter         or amend a judgment                     under the Rules of Civil                               Procedure          and
have       such motions               addressed              by the             trial         court.        Such a ruling
would       base      a     party's           ability          to       move the              court     which        heard         the
dispute          in the       first          instance           to       alter          or amend its              judgment              on
winning         a "race       to the courthouse"                         subsequent             to notice          of entry             of
judgment.            The various               rules         were not intended                     to do so.              Further,
such a result               would           prevent          parties            from         examining          judgments          and
their       bases         in a objective                 and unhurried                    manner over             a period              of
several          days before            determining                 whether             motions        to alter           or amend
are appropriate;                  we will         not encourage                   the automatic             filing         of such
motions         by cutting            off     a party's             ability             to timely        file      the motions
as provided            in two separate                   rules           of civil             procedure.
          We note          that       Shull's          right         to appeal                from the          September          16,
1993,       final         judgment           is    not       impacted                by this       Opinion          and Order.
This       is    so because             Shull         timely            filed         a second notice                of     appeal
from       the      final         judgment            and post-trial                         orders      entered           by      the
District          Court,          precisely             in     order            to      preserve        and protect                his
rights          on appeal.              The second notice                            of appeal          was timely              filed
under       Rules      5(a)(4)          and 5(a)(l),                 M.R.App.P.
          THEREFORE,
           IT IS ORDERED that                      Zycom's              motion          to    dismiss           Shull's         first
notice          of appeal         is GRANTED; and

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          IT IS FURTHERORDEREDthat                  Zycom's request        for   attorney's        fees
in bringing         its    motion      to the Court         is DENIED.
         The Clerk        is directed      to mail         a true   copy of this      Opinion       and
Order      to    counsel     of   record     for     the    parties,      to the    Clerk     of    the
Eighth      Judicial        District       Court,        and to     the   Honorable     Thomas M.
McKittrick.
         Dated this




                                                                           Justices


Justice         James C. Nelson         did not participate.




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