IN THESUPRBNECOURTOFTHESTATEOFMONTANA No. 93-549
WILLIAM G. SHULL, d/b/a GAMO, Plaintiff andAppellant, OPINION
v. AND FIRST INTERSTATEBANKOFGREATFALLS, a corporation; ZYCOM,INC.: CAPITAL DEVELCPMENT COMPANY; NORTHCENTRALGAMINGCO., aMontana corporation; 

### DE@ 091993 andTHOMASC. 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. Theprocedural 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 Bankof Great Falls; the jury returned verdicts in favor of defendants Zycom, Inc., North Central Gaming CompanyandThomas C. Habets. Noissue waspresented to the jury relating to Capital Development Company.OnAugust 4, 1993, the District Court awarded Zycom, Inc.

attorney's fees andcosts in defending the action. Ajudgment was issued andnotice of entry of that judgment wasgiven onAugust 25, 1993.OnSeptember 16, 1993, the District Court entered ajudgment
asto 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 samedate. Shull served notice of entry of the September 16judgment to all parties on September 20, 1993. The next day, September 21, Shull filed anotice of appeal from the "final judgment entered in this action onthe 25th day of August, 1993." Defendants First Interstate Bank and Thomas C. Habets filed motions to amendthe September 16judgment on September 30, 1993. TheClerk of Court for the Eighteenth Judicial District transmitted the record onappeal to this Court onOctober 27, based on Shull's September 21notice of appeal from the August 25, 1993, judgment. TheDistrict Court heard defendants' post-trial motions onNovember 9, and issued its orders on those motions on November 10, 1993. Shull filed asecond notice of appeal, from the final judgment and post-trial orders, on November 17, 1993. Zycomargues 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. Weagree. It is clear that the August 25 judgment for Zycom, Inc. and
2Capital Development Companywasnot afinal andappealable judgment

in this action. In an action involving multiple claims and multiple parties such asthe underlying case here, afinal judgment
as to oneor more but fewer than all of the claims or parties may be entered only upon an express determination by the court that there is nojust reason for delay anduponanexpress direction for the entry of judgment. Rule 54(b), M.R.Civ.P. Nosuch determination and direction were made here with regard to the August 25 judgment. Thus, nofinal judgment was issued onAugust 25and no appeal wasavailable pursuant to Rule l(b)(l), M.R.App.P. Nor is the court's August 25judgment relating to Zycom, Inc. and Capital Development Companyappealable under any of the Rule l(b)(2) or (3), M.R.App.P., circumstances authorizing appeal from interlocutory orders or judgments. Therefore, wehold that the August 25, 1993, judgment wasnot appealable andShull's notice of appeal from that judgment--filed September 21, 1993--was premature andwithout 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 maybeso, the notice of appeal specifically states that the appeal is from the August 25judgment. 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
3premature 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 amendwithin 10days thereafter. Rules 52(b) and 59(g), M.R.Civ.P., authorize aparty to file
amotion to alter or amendajudgment within 10days 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. Wedisagree. Rule 5(a)(4), M.R.App.P., provides that if atimely motion to alter or amenda judgment is madepursuant 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. Anewnotice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion.

. . ." Wehave not heretofore addressed the interplay between this portion of Rule 5(a)(4), M.R.App.P., the time period for filing anotice of appeal contained in Rule 5(a)(l), M.R.App.P., and the time for filing motions to amendor alter ajudgment pursuant to the Montana Rules of Civil Procedure. Wedo so here by agreeing with the District Court's interpretation that district courts retain jurisdiction to consider andresolve timely motions to alter or amendfiled pursuant to Rule 52(b) or 59(g), M.R.Civ.P. Stated differently, anotice of appeal filed prior to the expiration of the time allowed for motions to

4alter or amendbut followed by such motions timely filed shall, as

stated in Rule 5(a)(4), M.R.App.P., have noeffect. Tohold otherwise would enable the party desiring to appeal to totally negate the opposing party's ability to file timely motions to alter or amendajudgment 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. Thevarious rules were not intended to doso. Further, such a result would prevent parties from examining judgments and their bases in aobjective and unhurried manner over a period of several days before determining whether motions to alter or amend
are appropriate; wewill not encourage the automatic filing of such motions bycutting off aparty's ability to timely file the motions
as provided in two separate rules of civil procedure. Wenote 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 ORDEREDthat Zycom's motion to dismiss Shull's first notice of appeal is GRANTED;and
5IT IS FURTHERORDERED that Zycom's request for attorney's fees in bringing its motion to the Court is DENIED. TheClerk is directed to mail atrue 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 JamesC. Nelson did not participate.

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