No. 14406 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979

DOROTHY BEAMER, ELSOM ELDRIDGE, JR., ART FORAN, CYNTHIA KLIMAS, LARRY KNUTSON and MARY ROHN, Plaintiffs and Appellants,

GEORGIA RUTH RICE, SUPERINTENDENT OF PUBLIC INSTRUCTION OF THE STATE OF MONTANA, Defendant and Respondent.

Appeal from: DistrictCourt 

### of the First

### Judicial District, Honorable Gordon R. Bennett, Judge presiding. Counsel 

### of Record: For Appellants: JamesW. Zion argued, Helena, Montana For Respondent: Cannon and Gillespie, Helena, Montana Richard Gillespie 

### argued, Helena, Montana

Submitted: February 8, 1979 Decided: 

## ;RPR 

# 27 1979 Filed: 

## @k2

## i 1979Mr. 

### Justice Gene B. 

### Daly delivered the Opinion of the Court. This is 

### an appeal from the order of the District Court, FirstJudicial District, 

### granting inpart defendant superintendent's motion for summary judgment. Plaintiffs/appellants are six former employees of the Office of the Superintendent of Public Instruction (OSPI). After election tothe office of superintendent, defendant requested a 

### letter of resignation from allmembers of the OSPI professional staff. She indicated that, upon receipt of these letters, she would meet with each of the members individually to "evaluate" their position on the staff. In their complaint, plaintiffs alleged that they were 

### each dismissed without cause following the presentation of their requested resignations. They further alleged that they requested from defendant reasons for their dismissal, but that their request was refused. Defendant's predecessor inoffice adopted an AffirmativeAction program for the OSPI 

### on March 26, 1976. That program included a plan for termination of employment procedures in section 904: "Section 904 Termination "Goal: 

### Terminations will

### be made forjob related rea

### sons only. "Action Items 1. 

### Termination for cause will

### be made only after atleastone evaluation session has been held to discuss the problem, remedial action has been requested, and reasonable time

### has been allowed for improvement unless the person's presence is 

### a direct threat to the safety and continuation of the agency's function. "2. 

### The EEO 

### coordinator or a 

### designee will

### conduct exit interviews and will

### provide documentation to the Personnel ServicesManager who 

### willkeep a running log of the employees' reasons for termination. If there is 

### any suggestion that discrimination is 

### involved, the EEO 

### coordinator or a designee will

### be asked toparticipate inthe interviews. Apparent discrimatory actions

### willbe investigated and corrected."Plaintiffs alleged intheir firstclaim for relief that section 904 constituted a contractual term of their employment and that defendant failed to liveup to that contract in several particulars. Second, they alleged a tort, in that defendant acted maliciously toward them by disregarding the termination for cause plan. Third, plaintiffs alleged the tort of "outrage," in that defendant's willful disregard of section 904 caused them emotional distress. A fourth claim, a claim for lostwages, 

### was dismissed by the District Court asbeing redundant. Plaintiffs' fifthclaim alleged a violation of section 64-317(1), R.C.M. 1947, now section 49-3-201 MCA, in that defendant failed tomake a merit-based evaluation of the OSPI personnel before dismissing them. The sixth claim alleges that the dismissals were motivated by political favoritism, and 

### were therefore arbitrary and capricious, and violated plaintiffs' state and federal constitutional rights. Plaintiffs' seventh claim alleged a violation of section 41- 1311, R.C.M. 1947, now section 39-2-801 MCA, in that defendant failed toprovide a "full, succinct, and complete statement of the reason of [their] discharge" when requested todo so. In their prayer for judgment, plaintiffs sought, inter alia, attorney fees under provisions of 42 U.S.C. §I988 (1976). Defendant superintendent moved for summary judgment on plaintiffs' first, second, third and fifthclaims. The District Court, inan order dated April 27, 1978, granted summary judgment todefendant on the first, second and third claims, set the fifth, sixth, and seventh claims for trial and denied plaintiffs' claim for attorney fees under 42 U.S.C. S1988. The District Court's reason for granting

### summary judgment as tothe firstthree claims was that those claims were all

### based upon section 904 of the OSPI AffirmativeAction plan and that the superintendent lacked statutory authority to adopt such a plan. It 

### denied plaintiffs' claim for attorney feesunder 42 

### U.S.C. 81988 on the rationale that the attorney feesprovision of that section is intended to apply only tofederal courts and that absent a statute, stipulationby parties, or rule of court, attorney fees are not recoverable by the prevailing party. Plaintiffs raise several specificationsof error on the 

### merits of theDistrict

### Court's ruling but because 

### we have determined that the order granting summary judgment as to some, but not allof their claims, is interlocutory and not appealable, 

### we willnot discuss those issues. Plaintiffs presented seven separate claims for relief, three of which remain tobe 

### adjudicated attrial. This situation is not expressly contemplated inRule 56, M.R.Civ.P., but requires reference toRule 54(b),M.R.Civ.P. Rule 54(b) provides that a District 

### Courtmay grant a final, appealable judgment 

### as to some but not allof the claims involved in an action only if it

### makes an express determination that there is no just reason todelay an appeal on those claims and expressly directs entry of judgment: "When multiple claims for relief ormultiple parties are involved inan action, the court may directthe entry of a finaljudgment asto one ormore but fewer than allof the claims orparties only 

### -- upon an express determination that there is 

### no just reason

## for delay

# and --- upon an 

### express direction for the entry of 

### -- -- - judgment. 

# . ." (Emphasis added.) Rule 54(b) goes on toprovide that if the District 

### Court failstomake the required "determination" and "direction," any order which adjudicates less than allof the claims does "not terminate the action as to 

## - any of theclaims" and the order remains "subject torevision" until the final entry of judgment adjudicating all the claims. (Emphasis added.) Thus, when Rule 54(b) 

### is construed together with Rule 56(c), the result 

### is that a District Court may enter a final appealable summary judgment if it rules on

one ormore but not allof a party's claims and makes the requisite "determination" and "direction" in

### its order. As Professor Moore comments on the identical Federal Rules: 

# ".



# . . Neither Rule 56 nor any other Rule authorizes the trialcourt to translate an interlocutory adjudication of a part of a single 

### claiminto a final judgment. If, however, inan action involving multiple claims orparties, the trialcourt fully adjudicates one ormore but fewer than allthe claims, it can make that adjudication final by making the 'express determination' and the 'express direction' called for by Rule 54(b). Failing todo that the adjudication remains interlocutory." 6 Moore'

### s Federal 

### Practice 1156.20[l] at56-1204. See also, In 

### re Marriage of Adams (1979), Mont. I P.2d 

## , 36 St.Rep. 565, 566; State ex 

### rel. Marlenee

v. DistrictCourt (1979), Mont

# . I P.2d



## , 36 St.Rep. 457, 459-60; 6 Moore's Federal Practice 1156.21[1.-21 at56-1271 to 1272; cf. Krusemark 

### v. Hanson (1979)r -Mont. -I 

## -P.2d 

## , 36 St.Rep. 159 (involvingmultiple parties). The "determination" and "direction" requirements of Rule 54(b) are intended topermit the DistrictCourt, in the firstinstance, toconsider whether the judgment upon some, but not all, of a litigant's claims can properly be appealed. As described by the United States Supreme Court, the district court, ineffect, "isused as a 'dispatcher'." "It

### is permitted todetermine, inthe firstinstance, the appropriate

### timewhen each 'final decision' upon 'one or more but 

### less than all' of the claims ina multiple claims action 

### is ready for appeal." Sears, Roebuck & Co. v. Mackey (1956),351 U.S. 427, 435, 76 S.Ct. 895, 899, 100 L.ed 1297. In thisway the District Court not only assists this Court by preventing "piecemeal appellate disposition" of what 

### ismore properly considered a single controversy, 

### see, Eisen v. Carlisle & Jacquelin (1974), 417 U.S. 156, 170, 40 L Ed 2d 732, 744, 94 S.Ct. 2140, 2149, quoted inRyan v. Occidental Petroleum (5thCir. 1978), 577 F.2d 298, 301, but also permits the DistrictCourt todetermine whether special circumstances require an immediate appeal: "'The inquiry requires some evaluation of the competing considerations underlying 

### all questions of finality--"the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other." Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511 (1950).

## '" Occidental ~etroleum, 577 P.2d at301, quoting Eisen v. Carlisle & Jacquelin, 417 U.S. at171, 40 L Ed 2d at745, 94 S.Ct. at2149. In light of the "competing considerations," the reviewing court may, under limited circumstances, consider the appeal despite the lack of the express "determination" and "direction" required by Rule 54(b). Riggle v. Stateof California (9thCir. 1978), 577 F.2d 579, 581 n. A; Huckeby

v. Frozen Food Express (5thCir. 1977), 555 F.2d 542, 546- 47. InHuckeby, the Court of Appeals listed three circumstances which would permit an appellant toproceed in the absence of a Rule 45(b) determination and direction, none of which are applicable toour case here. Plaintiffs argue that an alternativedisposition 

### is available, that this Court may issue a 

### writof supervisory control to the DistrictCourt reinstating their firstthree claims. However, such 

### a 

### writwould not surely terminate "needless litigation" 

### as was the case in State ex 

### rel. Buttrey Foods v. DistrictCourt (1966), 148 14ont. 350, 354, 420 P.2d 845, 847, and 

### we decline toissue a 

### writ.The summary judgments appealed from are interlocutory and not appealable. The appeal 

### isdismissed without prejudice.

Justice

We concur: 

# %4s, g, Chief Justice