AF 07-0735

IN THE SUPREME COURT OF THE STATE OF MONTANA

2007 MT 334

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IN THE MATTER OF AP PEALS IMPROPERLY CERTIFIED AS FI NAL JUDGMENTS ENTERED PURSUANT TO M. R. CIV. P. 54(b) O P I N I O N A N D O R D E R

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¶1 Since the new Montana Rules of Appellate Procedure went into effect on October 1, 2007, a number of attorneys have filed notices of appeal with this Court reflecting that the appeal is from a judgment certified as fina l under M. R. Civ. P. 54(b), when, in fact, the judgment appealed from is not one certified as final under M. R. Civ. P. 54(b). ¶2 M. R. Civ. P. 54(b) permits a court faced with multiple parties or multiple claims to enter a final judgment “as to one or more but fewer than all of the claims or parties only upon an express determinat ion that there is no just reason for delay and upon an express direction for the entry of judgment.” Satterlee v. Lumberman’s Mutual Casualty Company , 2007 MT 325, ¶ 15, ___ Mont. ___, ¶ 15, ___ P.3d ___, ¶ 15. ¶3 Under M. R. App. P. 4(4)(b) and 6(6), appeals certified as final pursuant to M. R. Civ. P. 54(b) are initially treated diffe rently from other appeals. For that reason, Forms 1 and 2 appended to the Montana Rules of Appellate Procedure provide that the appellant or cross-appellant certify that the appeal or cross-appeal “_____is/is not_____” from a judgment certified as final under M. R. Civ. P. 54(b). ¶4 Obviously, most appeals and cross-appe als are not from judgments certified as final under M. R. Civ. P. 54(b). And, wh ile it would seem to go without saying, we expect counsel to actually de termine whether their appeal or cross-appeal involves a judgment certified as final under M. R. Civ. P. 54(b). It is not acceptable practice to

1certify that every judgment is final under M. R. Civ. P. 54(b)—as a number of attorneys have—when the judgment appealed from has not been so certified by a district court. Nor is it acceptable practice for a ttorneys to draft a form of no tice of appeal that certifies that every appeal is from a judgment certified as final pursuant to M. R. Civ. P. 54(b). Finally—and it should embarrass some that we even need to say this—the certification
statements on Forms 1 and 2 include blank spaces and alternative statements, e.g., “_____is/is not_____.” It was and is this Court’s intention that counsel check [ √ ] or [X] whichever alternative statement is true, not simply include bo th statements, albeit without the blanks, in his or her form notice of appeal . This procedure is to be followed for each
of the other certification statem ents with blanks as well. ¶5 Therefore, in order to obviate this C ourt wasting its limited time and resources reviewing notices of appeal and cross-appeal that do not involve appeals from judgments actually certified as final under M. R. Civ. P. 54(b), ¶6 IT IS ORDERED that, upon filing a notic e of appeal or cross-appeal which improperly certifies that the appeal is fr om a judgment certified as final under M. R. Civ. P. 54(b), the Clerk of this Court shall notify the person filing the notice to file a corrected notice of appeal or cross-appeal on Form 1 or 2 within eleven (11) days or face dismissal of the appeal or cross-appeal . The Clerk shall include a copy of this Opinion and Order with the notice. If the corre cted notice is not timely filed, the Clerk
shall refer the matter to this Court. The Clerk’s costs of notice, postage and photocopying shall be paid by the person filing the correct ed notice at the time it is filed. ¶7 IT IS FURTHER ORDERED that a copy of this Opinion and Order be posted to the State Law Library and State Bar of Mo ntana Websites and be published in the Montana Lawyer

. Dated this 12 th day of December, 2007.

/S/ KARLA M. GRAY /S/ W. WILLIAM LEAPHART /S/ JAMES C. NELSON

2/S/ PATRICIA COTTER /S/ JOHN WARNER /S/ BRIAN MORRIS /S/ JIM RICE

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