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 THOMAS C. 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 determination 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 interlocutory 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 FURTHER ORDERED that 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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