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: District Court of the First Judicial District, 

Honorable Gordon R. Bennett, Judge presiding. 

Counsel of Record: 

For Appellants: 

James W. Zion argued, Helena, Montana 

For Respondent: 

Cannon and Gillespie, Helena, Montana 

Richard Gillespie argued, Helena, Montana 

Submitted: February 8, 1979 

Decided: ;RPR 2 7 1979 

Filed: @k 2 i 1979 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This is an appeal from the order of the District Court, 

First Judicial District, granting in part 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 to the office of superintendent, defendant 

requested a letter of resignation from all members 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 in office adopted an Affirmative Action 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 for job related reasons only. 

"Action Items 

1. Termination for cause will be made only after 

at least one 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 Services Manager who 

will keep 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 to participate in the interviews. Apparent discrimatory actions will be investigated and corrected." 
Plaintiffs alleged in their first claim for relief that 

section 904 constituted a contractual term of their employment and that defendant failed to live up 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 lost wages, was dismissed by the District 

Court as being redundant. 

Plaintiffs' fifth claim alleged a violation of section 

64-317(1), R.C.M. 1947, now section 49-3-201 MCA, in that 

defendant failed to make 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 to provide a "full, succinct, and complete 

statement of the reason of [their] discharge" when requested 

to do 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 fifth claims. The 

District Court, in an order dated April 27, 1978, granted 

summary judgment to defendant 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 to the first three claims was that those 

claims were all based upon section 904 of the OSPI Affirmative Action plan and that the superintendent lacked statutory authority to adopt such a plan. It denied plaintiffs' 

claim for attorney fees under 42 U.S.C. 81988 on the rationale that the attorney fees provision of that section is 

intended to apply only to federal courts and that absent a 

statute, stipulation by parties, or rule of court, attorney 

fees are not recoverable by the prevailing party. 

Plaintiffs raise several specifications of error on the 

merits of the District Court's ruling but because we have 

determined that the order granting summary judgment as to 

some, but not all of their claims, is interlocutory and not 

appealable, we will not discuss those issues. 

Plaintiffs presented seven separate claims for relief, 

three of which remain to be adjudicated at trial. This 

situation is not expressly contemplated in Rule 56, M.R.Civ.P., 

but requires reference to Rule 54(b), M.R.Civ.P. Rule 54(b) 

provides that a District Court may grant a final, appealable 

judgment as to some but not all of the claims involved in an 

action only if it makes an express determination that there 

is no just reason to delay an appeal on those claims and 

expressly directs entry of judgment: 

"When multiple claims for relief or multiple 

parties are involved in an action, the court 

may direct the entry of a final judgment as to 

one or more but fewer than all of the claims 

or parties 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 to provide that if the District 

Court fails to make the required "determination" and "direction," any order which adjudicates less than all of the 

claims does "not terminate the action as to - any of the 
claims" and the order remains "subject to revision" 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 or more but not all of 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 trial court to translate an 

interlocutory adjudication of a part of a 

single claim into a final judgment. If, however, in an action involving multiple claims 

or parties, the trial court fully adjudicates 

one or more but fewer than all the claims, it 

can make that adjudication final by making 

the 'express determination' and the 'express 

direction' called for by Rule 54(b). Failing 

to do that the adjudication remains interlocutory." 6 Moore' s Federal Practice 1156.20 [l] 

at 56-1204. 

See also, In re Marriage of Adams (1979), Mont. I 

P.2d , 36 St.Rep. 565, 566; State ex rel. Marlenee 

v. District Court (1979), Mont . I P.2d 

, 36 St.Rep. 457, 459-60; 6 Moore's Federal Practice 

1156.21[1.-21 at 56-1271 to 1272; cf. Krusemark v. Hanson 

(1979) r - Mont. -I - P.2d , 36 St.Rep. 159 

(involving multiple parties). 

The "determination" and "direction" requirements of 

Rule 54(b) are intended to permit the District Court, in the 

first instance, to consider 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, in effect, "is used as a 'dispatcher'." "It is 

permitted to determine, in the first instance, the appropriate time when each 'final decision' upon 'one or more but 

less than all' of the claims in a 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 

this way the District Court not only assists this Court by 

preventing "piecemeal appellate disposition" of what is more 

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 in Ryan v. Occidental 

Petroleum (5th Cir. 1978), 577 F.2d 298, 301, but also 

permits the District Court to determine 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 at 301, quoting Eisen v. Carlisle & 

Jacquelin, 417 U.S. at 171, 40 L Ed 2d at 745, 

94 S.Ct. at 2149. 

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. State of 

California (9th Cir. 1978), 577 F.2d 579, 581 n. A; Huckeby 

v. Frozen Food Express (5th Cir. 1977), 555 F.2d 542, 546- 

47. In Huckeby, the Court of Appeals listed three circumstances which would permit an appellant to proceed in the 

absence of a Rule 45(b) determination and direction, none of 

which are applicable to our case here. 

Plaintiffs argue that an alternative disposition is 

available, that this Court may issue a writ of supervisory 

control to the District Court reinstating their first three 

claims. However, such a writ would not surely terminate 

"needless litigation" as was the case in State ex rel. 

Buttrey Foods v. District Court (1966), 148 14ont. 350, 354, 

420 P.2d 845, 847, and we decline to issue a writ. 
The summary judgments appealed from are interlocutory 

and not appealable. The appeal is dismissed without prejudice. 

Justice 

We concur: 

%4s, g, Chief Justice