No. 14909 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

KNIGHT & COMPANY, a partnership, 

Plaintiff and Appellant, 

-vsFORT BELKNAP INDIAN AGENCY HOUSING AUTHORITY; 

FORT BELKNAP BUILDERS, INC., a Montana 

Corporation; FORT BELKNAP INDIAN TRIBE: 

SMITH ENTERPRISES, INC. and the FIRST NATIONAL 

BANK OF CIRCLE, MONTANA, 

Defendants and Respondents. 

Appeal from: The District Court of the Twelfth Judicial 

District, In and for the County of Blaine, 

The Honorable B. W. Thomas, Judge presiding. 

Counsel of Record: 

For Appellant: 

Graybill, Ostrem, Warner & Crotty, Great Falls, 

Montana 

For Respondent : 

Towe, Ball, Enright and Mackey, Billings, Montana 

Submitted on Briefs: January 10, 1980 

Decided: JUN 20 

Filed: &@tI e 19@ 
Mr. Justice Daniel J. Shea delivered the Opinion of the Court. 

Knight & Company (herein referred to as Knight) appeals 

from an order of the Blaine County District Court granting 

the motion of the First National Bank of Circle (herein 

referred to as Bank) for summary judgment. Several issues 

are raised, but we determine that the procedural issue of 

whether Knight has improperly appealed an interlocutory 

order is dispositive of this appeal. 

Although a full discussion of the facts is not necessary, 

a limited discussion is required. Knight, an architectural 

firm, prepared architectural drawings for the construction 

of 20 homes in Fort Belknap, Montana. On February 20, 1974, 

Knight filed suit against various parties for the recovery 

of architect fees for services completed by October 22, 

1971. Similar cases in two other counties were eventually 

consolidated. 

On May 3, 1974, the trial court entered an order 

dismissing defendants Fort Belknap Indian Agency Housing 

Authority and Fort Belknap Indian Tribe from the lawsuit for 

lack of jurisdiction. On November 6, 1978, the trial court 

entered default judgment against defendant Smith Enterprises, 

Inc., which Knight asserts is a bankrupt corporation. On 

January 17, 1979, defendant Bank filed a motion for summary 

judgment; and on February 6, 1979, summary judgment was 

entered in favor of the Bank. On February 13, 1979, Knight 

filed a motion to set aside the summary judgment, which was 

granted on April 13, 1979. The matter was reset for hearing, 

and on May 29, 1979, the trial court again granted the 

Bank's motion for summary judgment. This appeal followed. 

This case involves multiple parties, more specifically 

multiple party defendants. The record shows that the entry 

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of summary judgment adjudicated the rights and liabilities 

of Knight and the Bank; however, the rights and liabilities 

of all of the party defendants have not been adjudicated. 

The current status of each party defendant is as follows: 

"(1) Fort Belknap Indian Agency Housing Authority 

dismissed for lack of jurisdiction. 

"(2) Fort Belknap Indian Tribe dismissed for lack 

of jurisdiction. 

"(3) Default judgment entered against Smith 

Enterprises, Inc. 

"(4) Summary judgment entered in favor of First 

National Bank of Circle, Montana. 

"(5) - No determination as to Fort Belknap Builders, 

Inc. - action pending." 

Fort Belknap Builders, Inc. is a party defendant in 

this case; and to date, the following actions have been 

taken concerning Fort Belknap Builders, Inc.: 

" (1) Motion to dismiss filed on April-17, 1974. 

" (2) Motion to dismiss denied on April 30, 1974. 

"(3) Answer to complaint filed on May 24, 1974. 

"(4) Attorney Thomas E. Towe's motion to withdraw 

as counsel filed on July 13, 1978. 

" (5) Notice of hearing on motion to withdraw as 

counsel filed on July 13, 1978. 

"(6) Order granting motion to withdraw as counsel 

filed on July 25, 1978. 

"(7) Certificate of service filed on August 4, 

1978--Service of a copy of the Court order to 

defendant. 

"(8) District Court order directing plaintiff to 

give defendant notice to retain new counsel or 

appear in person filed on August 24, 1978." 

The record clearly shows that the rights and liabilities 

of Fort Belknap Builders, Inc. have not been adjudicated. 

Under Rule 54, M.R.Civ.P., the order granting summary 

judgment here is not a final judgment because not all of 

the parties have been adjudicated. Additionally, the trial 
court did not certify the summary judgment as final, under 

Rule 54(b), M.R.Civ.P. This case is not ripe for appellate 

review since the order of summary judgment is interlocutory; 

therefore, this appeal must be dismissed without prejudice 

under Rule 1, M.R.App.Civ.P. 

As we noted in Roy v. Neibauer (1980) , Mon t . I 

P.2d - , 37 St.Rep. 897, 898, we have previously 

dismissed appeals for failure to comply with Rule 54 (b) , 

M.R.Civ.P. See for example, Krusemark v. Hansen (1979), 

Mont . , 597 P.2d 48, 36 St.Rep. 159; Knoepke v. Southwestern Ry. Co. (1979), Mon t . , 595 P.2d 376, 36 

St.Rep. 957; In Re Marriage of Adams (1979), - Mont. - I 

598 P.2d 197, 36 St.Rep. 565. - Roy thoroughly discussed 

appeals involving interlocutory orders and Rule 54(b). - Roy clearly 

and specifically set forth the applicable principles, rules, 

and procedural steps involved in relation to a Rule 54(b) 

certification of final judgment. 

Our extensive discussion in - Roy is equally applicable 

here; however, we perceive an additional problem in this 

case which must be addressed. In the brief submitted to 

this Court on appeal, Knight stated that "Fort Belknap 

Builders, Inc. is a bankrupt corporation against which no 

further proceedings have been taken." Knight also stated 

". . .the only real parties left in the suit are the Plaintiff 

and the First Bank of Circle, Montana.. . ." A careful 

review of the record reveals that it cannot be determined 

whether a voluntary or involuntary petition of bankruptcy 

has been filed in Federal Court concerning Fort Belknap 

Builders, Inc.; and herein lies the problem. 

Recognizing that all of the rights and liabilities of 

all of the parties had not been adjudicated, Knight could have 

attempted to obtain an entry of default judgment against 

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Fort Belknap Builders, Inc. If this had been done, there 

would have been a final judgment, and consequently this case 

would be ripe for appellate review. However, if a bankruptcy 

petition has been filed in Federal Court, then Knight's 

action against Fort Belknap Builders, Inc. in Blaine County 

District Court may be stayed and Knight will not be able to 

obtain an entry of default judgment or further proceed 

against Fort Belknap Builders, Inc. Under federal law, the 

filing of a bankruptcy petition operates so as to stay 

other proceedings pending a Federal Court's determination 

on the bankruptcy petition. See Collier on Bankruptcy, Vol. 

lAI (14th ed.) , 811. 

If a bankruptcy petition has been filed concerning Fort 

Belknap Builders, Inc., then it would be proper for Knight 

to petition for a Rule 54(b) certification of final judgment 

in order to facilitate appellate review. This cause of 

action was filed in February 1974 and is now going to be 

sent back to the trial court. This case has been in the 

courts for over 6 years and will probably be in the courts 

for sometime to come. Under these circumstances, this case 

would qualify as one of those infrequent harsh cases justifying 

a discretionary departure from the normal rule as to the 

time of appeal, in accordance with the principles enunciated 

in - Roy. 

However, if a bankruptcy petition has not been filed 

concerning Fort Belknap Builders, Inc., then Knight is free 

to proceed against Fort Belknap Builders, Inc. and may not 

petition the trial court for, and be granted, a Rule 54(b) 

certification of final judgment in order to quickly file a 

notice of renewed appeal with this Court. In Allis-Chalmers 

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Corp. v. Philadelphia Electric Co. (3rd Cir. 1975), 521 

F.2d 360, 365, the Court discussed and distinguished between 

the granting of summary judgment and Rule 54(b) certification 

in the following manner: 

". . . [tlhe considerations which resulted in 

a grant of summary judgment are not the same 

considerations relevant to an order of final 

certification under Rule 54(b). Under summary 

judgment procedure, the essential inquiry is 

whether material facts are disputed. Under 54 

(b) procedure, the essential inquiry is whether, 

after balancing the competing factors, finality 

of judgment should be ordered to advance the 

interests of sound judicial administration and 

public policy." 

In the absence of a filed bankruptcy petition concerning 

Fort Belknap Builders, Inc., and considering the principles, 

relating to Rule 54(b) certification, the record here reveals 

no danger of hardship or injustice through delay which would 

be alleviated by immediate appeal. Under these circumstances 

there is absolutely nothing in the record meriting a conclusion 

that this is a case which qualifies as one of those infrequent 

harsh cases justifying the discretionary departure from the 

normal rule as to the time of appeal. 

Appeal dismissed without prejudice. 1 

We Concur: 

#ief Justice, 

Justices