SHULL v FIRST INTERSTATE BANK
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IN THE SUPRBNE COURT OF THE STATE OF MONTANA No. 93-549 WILLIAM G. SHULL, d/b/a Plaintiff GAMO, OPINION and Appellant, v. AND FIRST INTERSTATE BANK OF GREAT FALLS, a corporation; ZYCOM, INC.: CAPITAL DEVELCPMENT COMPANY; NORTH CENTRAL GAMING CO., a Montana corporation; and THOMASC. HABETS, Defendants and Respondents. Defendants/Respondents Company (collectively William G. Shull bringing first with this notice d/b/a lawsuit June, Interstate of appeal Shull a motion dismiss to the attorney's motion facts to dismiss should a jury these Procedure, to before Zycom, Inc., C. Habets. No issue Development Company. verdicts Shull the jury North was presented mandate fees dismiss us, in his together Procedure and our conclusion the underlying be granted. returned parties. the by Plaintiff/Appellant and for The procedural Bank of Great Falls; of defendants Development filed opposes of Appellate 1993, between and Capital between the Montana Rules of Civil Rules the motion Inc. GAMO (Shull) of appeal. the interplay In notice motion. the Montana that Zycom, Zycom) have filed 21, 1993, September DE@09 1993 Central in prevailed returned against verdicts First in favor Gaming Company and Thomas to the jury relating to Capital On August attorney's issued 4, fees the 1993, and costs and notice District Court in defending of entry of that awarded Inc. A judgment the action. judgment Zycom, was on August 25, was given 1993. 16, 1993, the District as to all Court including On September in the underlying parties, Zycom, Inc. Is counsel gave notice First Interstate entry of the September 1993. Bank on the The next day, from the "final August, of entry of judgment same date. 16 judgment Shull to all filed in this action entered a judgment action. to Shull served and notice of on September parties 21, Shull September judgment 20, a notice of appeal on the 25th day of 1993." Defendants motions First Interstate to amend the September The Clerk of Court the record September for on appeal 16 judgment Court of appeal filed its orders post-trial orders, post-trial of appeal, 30, 1993. transmitted 27, based on Shull's from the August motions filed 25, 1993, motions judgment. on November on November from the final 10, 1993. judgment and on November 17, 1993. Zycom argues notice District on October on those a second notice on September Judicial Court heard defendants' 9, and issued first Bank and Thomas C. Habets the Eighteenth to this 21 notice The District Shull Zycom, Inc., entered that, of appeal and that the motions. these procedural was premature is clear that Court was free circumstances, and of no force the August to resolve 25 judgment 2 for the the and effect, We agree. It District under post-trial Zycom, Inc. and Capital in Development this action. multiple parties Company was not a final In an action be entered there only tion all of the claims delay Rule 54(b), were made here Thus, no final was available judgment pursuant with August 25 judgment regard Development Company appealable under ry M.R.App.P., orders or judgments. 1993, judgment that circumstances judgment--filed legal September direction for the appeal we hold 25 25 and no Nor is and Capital Rule l(b)(2) or from interlocuto- that the notice 21, 1993--was August M.R.App.P. and Shull's August 25, of appeal premature from and without effect. Shull argues that the notice of appeal from the notice of appeal September 16, While this may be so, the notice the appeal is from the August 25 judgment. specifying rewrite orders/judgments parties' Moreover, of that on August any of the Therefore, may court to Zycom, Inc. authorizing was not appealable to l(b)(l), relating judgment No such determina- was issued to Rule and or parties by the M.R.Civ.P. the court's (3), claims and upon an express for judgment a final reason of judgment. judgment. than case here, determination and direction appeal fewer multiple upon an express is no just the entry involving such as the underlying as to one or more but and appealable appeal judgment at in notices even if issue the being of appeal this Court as being action, of appeal the was intended 1993, specifically the notice 3 states from, that we will of not them. were inclined from judgment. Given the importance appealed for final to be a September of appeal to read the notice 16, still 1993, final would be premature entered duly served by Shull on September 21, 52(b) were timely September alter 21 notice or determine the prescribed the M.R.App.P., in Rule Procedure. and resolve the motion. a judgment timely 52(b) or 59(g), filed prior ." this filing pursuant to district courts motions to alter expiration Stated Rule retain not of Rule filing . must of the 5(a)(4), motions Rules to of Civil Court's to consider pursuant a notice allowed 59, contained District or amend filed to heretofore of appeal the of of of appeal jurisdiction differently, or 52(b) from the entry for his motion the disposition to the Montana of the time 4 a timely We have with that We disagree. if a notice of Court to time to file motions District portion by agreeing M.R.Civ.P. to the . and the We do so here that motions however, A new notice . for M.R.App.P., that time measured the time period interpretation of a party motions. before have no effect. between amend or alter those filed interplay 5(a)(l), notice post-trial the made pursuant of appeal be filed of the 10 days of notice argues, provides is shall disposing was filed defendants' divested M.R.App.P., a "notice addressed that appeal . . the motions order judgment filed within Shull or amend a judgment within was of authorize Rules. of to accept M.R.Civ.P., Shull M.R.Civ.P., is clear these Rule 5(a)(4), entry judgment 10 days thereafter. It under jurisdiction 20. or amend a judgment of judgment. of final Two defendants 1993. and 59(g), to alter the and notice 1993, or amend within a motion entry 16, on September Rules As stated, no effect. September appeal alter and of for to Rule of appeal motions to alter or amend but followed stated in Rule 5(a)(4), M.R.App.P., To hold otherwise totally negate to alter have ability to in the first winning a "race such a result bases several would are appropriate; motions final This is from the that judgment so because is Shull final judgment District Court, precisely rights on appeal. under Rules 5(a)(4) from not of Further, a period file of or amend filing from the and of such the motions procedure. impacted by this filed order September Opinion to The second notice orders of appeal of entered preserve 16, and Order. a second notice and post-trial and 5(a)(l), of entry judgments of civil timely in on to alter to timely the judgment examining to appeal right and heard to do so. the automatic ability rules which to notice motions to motions Procedure manner over whether a party's as Such a ruling court subsequent not encourage Shull's timely or amend its and unhurried in two separate We note 1993, off alter parties determining we will by cutting as provided prevent shall, to appeal court. were not intended in a objective days before to rules trial move the to the courthouse" their instance The various to file ability by the dispute judgment. desiring under the Rules of Civil addressed party's a filed have no effect. party's or amend a judgment base timely would enable the party the opposing such motions would by such motions appeal by and protect was timely the his filed M.R.App.P. THEREFORE, IT IS ORDERED that notice of appeal Zycom's motion is GRANTED; and 5 to dismiss Shull's first IT IS FURTHERORDERED that in bringing its The Clerk Order to Eighth motion Judicial to the Court is directed counsel of to mail record District Zycom's request for Court, attorney's copy of this parties, and to the to the Opinion Clerk Honorable McKittrick. Dated this Justices Justice James C. Nelson did not participate. 6 fees is DENIED. a true the for of and the Thomas M.
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