                             NO. 94-623
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                1995


MARSHA L. KIRCHNER,
           Plaintiff and Appellant,
     v.
WESTERN MONTANA MENTAL HEALTH CENTER,
RIVER HOUSE PROGRAM, JOHN LYNN, Director
of River House Program, RIVER HOUSE
HIRING COMMITTEE, JANE AND JOHN DOES
1 THROUGH 10,
           Defendants, Respondents
           and Cross-Appellants.



APPEAL FROM:    District Court of the Fourth Judicial District,
                In and for the County of Missoula,
                The Honorable John S. Henson, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
                Marsha L. Kirchner, Pro Se, Missoula, Montana
           For Respondent:
                James A. Haynes, James A. Haynes Law Firm,
                Hamilton, Montana


                                 Submitted on Briefs:   May 11, 1995
                                             Decided:   August 4, 1995
Filed:    nvuu* 1353
Justice Fred J. Weber delivered the Opinion of the Court.
        Marcia Kirchner (Kirchner) appeals a partial summary judgment

order of the Fourth Judicial District Court, Missoula County. We

dismiss her appeal as premature and remand to the District Court

for further proceedings.            We also deny the cross-appeal by Western

Montana Regional Center (Center) which contends that the District

Court lacked jurisdiction to set aside the dismissal because the

45-day time limit under Rule 60(b), M.R.Civ.P., had expired.

        Appellant       Kirchner,   acting pro se,     has presented several

issues on          appeal   and respondents have cross-appealed several

issues.       We consider the following issues to be dispositive:

        I.        Has Kirchner filed a proper appeal to this Court?

        II.       Was Kirchner's motion to set aside dismissal controlled

by Rule 60(b), M.R.Civ.P., with the result that the District Court
was divested of jurisdiction by the passage of 45 days under the

Rule?

        We will summarize the basic fact framework of this case as set

forth        by   the   District    Court.       Kirchner began probationary

employment with the Center on May 16, 1990, as a social worker/case

manager.           The Center's Board of Directors         formally   approved

Kirchner's employment contract on June 15, as a temporary, half-

time, probationary status position.              Her contract was reissued in

July of 1990,           to reflect a cost of living adjustment.            The

personnel policies and procedures manual states that all new

employees are on probationary status for the first six months of



                                             2
employment.   The District Court then concluded that the manual
clearly showed that Kirchner's status was probationary.

     Kirchner was interviewed for the position she wanted but was

not hired.    The Center offered her a transitional case manager

position in October of 1990.           Kirchner   declined,   left     her
employment and filed the present suit.

     By order dated November 10, 1992, the District Court dismissed
Kirchner's case with prejudice.       Kirchner filed a motion to set
aside the dismissal.   On November 23, 1992, the court ordered that

a hearing on the matter should be held on December 15,               1992.
Before that hearing could be held, Kirchner appealed the case to

this Court.   Kirchner v. W. Mont. Regional Community Mental Health

Center (19931, 261 Mont. 227, 861 P.Zd 927.          In that case we

concluded that this Court did not have jurisdiction to consider

Kirchner's appeal and remanded to the District Court for hearing on

Kirchner's motion to set aside the order of dismissal.

     By opinion and order dated December 29, 1993, the District

Court had previously set aside its order of dismissal as originally

entered on November 10, 1992. Defendants moved for reconsideration

of that order and by opinion and order dated January 31, 1994, the

District Court determined that it had jurisdiction and denied the

request for reconsideration.
     In its opinion and order dated November 17, 1994, the District

Court concluded that summary judgment was not proper on counts III

and IV of the complaint.       The District Court granted summary

judgment on count VI and count VIII.         The District Court then


                                  3
concluded that the remaining claims of Kirchner sound in equity and
that the court was disposed to hear the claims by means of a bench

trial.



     Has appellant filed a proper appeal to this Court?

     Kirchner argues that this Court can hear her appeal under Rule

l(b) Cl), M.R.App.P., on the theory that the District Court's order
of partial summary judgment was a final judgment.             The   Center
refers to the original Kirchner case.      That reference is correct.

     For the benefit of Kirchner we restate the following from our

original Kirchner opinion:

     Montana's Rules of Appellate Procedure make clear that
     appeal can be taken only from a final judgment or a
     special order made after final judgment.        Rule 1,
     M.R.App.P.   A final judgment is one in which there has
     been a final determination of the rights of the parties,
     and any decree which leaves matters undetermined is
     interlocutory in nature and is not a final judgment for
     purposes of appeal. . .

          In this instance, the November 23, 1992, order is
     clearly not a final judgment. The court did not rule on
     Kirchner's  motion to set aside the dismissal, but
     scheduled a hearing in order to consider the parties'
     arguments.    That order was interlocutory in nature
     because no final determination of the rights of the
     parties had been made. . Kirchner's appeal to this
     Court is premature. An appeal which is premature must be
     dismissed for lack of jurisdiction.  (Citation omitted.)

Kirchner, 261 Mont. at 229-30, 861 P.2d at 929.         The    foregoing

Kirchner holding applies to the present case which is rooted in a

partial   summary   judgment    ruling by the District Court--all of

Kirchner's issues have not been determined by the court's grant of

partial   summary   judgment.    As a result,   the present appeal is

premature and must be dismissed for lack of jurisdiction.
                                     4
      Kirchner's    appeal   is therefore dismissed and the case is
remanded to the District Court for further consideration.

                                   II.

      Was Kirchner's motion to set aside dismissal controlled by

Rule 60(b), M.R.Civ.P., with the result that the District Court was

divested of jurisdiction by the passage of 45 days under the Rule?

      In substance the Center argues that the 45-day provision of

Rule 60(b), M.R.Civ.P., must be applied in this case, and that the

45 days has run when the time is considered which ran prior to the

notice of appeal in the original Kirchner case and then adding in

the time which had elapsed after the remittitur in Kirchner.

      This Court remanded the case back to the District Court

specifically for a hearing on Kirchner's motion to set aside her

dismissal.    We conclude that the 45day provision of Rule 60 (b) ,

M.R.Civ.P.,   did not begin to run until the filing of remittitur on

the first appeal.     The record shows that the District Court made
its determination within 45 days of the issuance of remittitur. As

a   result, the Center's cross-appeal is denied.

      This case is remanded for further proceedings consistent with

this opinion.




                                    5
We   concur:




               6
                                          August 4, 1995

                                  CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the
#. . . .


MARSHA L. KIRCHNER
2400 57TH STREET
MISSOULA, MT 59803

    __^ .
 JAMcs A .HAYNES
 JAMES A. HAYNES LAW FIRM
 P.O. BOX 544
307 STATE STREET
 HAMILTON, MT 59840


                                                     ED SMITH
                                                    CLEkK OF ‘I ‘HE SUPREME COURT
                                                     STATE OF MONTANA
