No. 89-240
IN THE SUPREME COURTOF THE STATEOF MONTANA
1989

MILK RIVER PRODUCTION CREDIT ASSOCIATION, a federal instrumentality, Plaintiffand Respondent,-vsBIG HOOK LAND & CATTLECOMPANY,aMontana corp.; HAROLDGOOLSBEE,JR., ALYCE GOOLSBEE; SHERLEET. GRAYBILL;GRAYBILL,OSTREM,WARNER AND CROTTY; JOHN H. LEEDS,D.V.M., Defendantsand Appellants.

BIG HOOK LAND & CATTLE CO., et al., Counterclaimants and Third-Party Plaintiffsand Appellants,-vsMILK RIVER PRODUCTION CREDIT ASSOCIATION, a federal instrumentality, Counterclaim Defendantsand ThirdParty Defendantsand Respondents.

APPEAL FROM: District Court of the Twelfth JudicialDistrict, In and for the County of Hill, TheHonorable JohnWarner, Judgepresiding.
COUNSELOF RECORD: ForAppellant:
LeoGraybill,Jr.; Graybill, Ostrem,Warner & Crotty, Great Falls,Montana
For Respondent: Gary S. Deschenes;Alexander, Baucus & Linnell, Great Falls,Montana

Filed: Submitted on Briefs: Aug. 31, 1989 J)e.cided: October 25, 1989Justice Fred J. Weber delivered the Opinion of the Court.

Defendants Harold and Alyce Goolsbee appeal a grant of partial summary judgment entered against them by the Twelfth Judicial District Court, Hill County, Montana. Because the partial summary judgment was not a final order and was not certified to this Court pursuant to Rule 54(b)

## ,M.R.Civ.P., we dismiss the appeal withoutprejudice. On November 14, 1985, Milk River Production Credit Association (Milk River PCA) brought a foreclosure action against Big Hook Land and Cattle Company, Harold and Alice Goolsbee, and several other defendants. The Goolsbees filed
an answer and counterclaim in February 1986, alleging a breach of the duty of good faith and fair dealing, the need for an accounting, nonconsideration for subordination of mortgage,and other assertions. OnMarch 4, 1986,Milk River PCA moved to strike affirmative defenses and to dismiss counterclaims. This motion was granted after oral argument. Milk River PCA then filed amotion for summary judgment against all defendants on September 29, 1986. After a hearing on this motion in October 1986, the District Court ruled from thebench that summary judgmentwould be granted against all defendants. The day after the hearing Big Hook Land and Cattle Company filed for bankruptcy. No written order was ever filed against anyparty at that time. Over two years later,on January 18, 1989, the District Court entered partial summary judgment against defendants Harold Goolsbee and Alyce Goolsbee. No order has been entered against any defendant other than the Goolsbees. Further, the Goolsbees did not request that the District Court certify the order pursuant to Rule 54(b), M.R.Civ.P. On appeal the Goolsbees raise issues regarding certain discovery rulings by the District Court. They also allegethat the District Court erred in dismissing defendants' defenses and counterclaims by determining that the state court did not have jurisdiction since Milk River PCA is a federal instrumentality. We do not reach these issues since
we conclude that the Goolsbees' appeal ispremature. An appeal may he taken from a "final order," Rule 1, M.R.App.P., or the district court may certify an order for appeal pursuant to Rule 54(b)

### , M.R.Civ.P., which states: Judgment upon multiple claims or involving multiple parties. 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 ,uponan express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision,however designated, which adjudicates less than all the claims or the rights and liabilitiesof less than all the parties shallnot terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. This Court has repeatedly emphasized that a judgment which leaves undetermined the liability of one ormore defendants cannot be appealed unless it is expressly made final upon a determination that there is no just reason for delay. Roy v. Neibauer (1980), 188 Mont. 81, 85, 610 ~.2d 1185, 1188.Appellants urge that Milk River PCAhas treated this as
a final order in that thisMontana judgment has been entered in California against the Goolsbees. They contend thatMilk River PCA is therefore estopped from raising the certification issue. Appellants misunderstand the certificationrequirement. It is not a mere formality, as stated in the recent case of McDonald v. Unirex, Inc. (1986), 221 Mont. 153, 154-55, 721 P.2d 302, 303:

We dismissed the appeal in Neibauer because no attempt was made to comply with the certification requirements of Rule 54(b). In that case, as an aid to practitioners, we set out the factorswhich we will consider in reviewing a Rule 54(b) certification. Since that time, we have refused to consider several appeals in which the certification requirements were partially, but not adequately met. Montana practitioners are held onnotice that the Rule 54(b) certification requirement is not viewed by this Court as amere formality,but as a necessary and valuable tool for preventing piecemeal litigation and waste of the resources of both litigants and the courts. (Citations omitted.) Accordingly, this appeal i t prejudice.