Dimond v. State Bd. of Higher Educ., 990178.

Citation603 N.W.2d 66,1999 ND 228
Decision Date03 December 1999
Docket NumberNo. 990178.,990178.
PartiesMark DIMOND, Plaintiff and Appellee, v. STATE of North Dakota, By and Through the STATE BOARD OF HIGHER EDUCATION, Defendant and Appellant.
CourtUnited States State Supreme Court of North Dakota

Monte Lane Rogneby (argued), Special Assistant Attorney General, and John C. Kapsner, Special Assistant Attorney General, Bismarck, N.D., for defendant and appellant.

Paul Michael Probst, Minot, N.D., for plaintiff and appellee.

MARING, Justice.

[¶ 1] This appeal is taken from a partial judgment entered under N.D.R.Civ.P. 54(b). We conclude Rule 54(b) certification should not have been granted. We determine, however, this a proper case in which to exercise our supervisory powers and direct the trial court to dismiss this action.

I.

[¶ 2] Dr. Mark Dimond taught music at Minot State University ("MSU") as a tenured professor, specializing in keyboard instruction. MSU, a public university, is an entity under the control of the State of North Dakota, through the State Board of Higher Education ("Board"). On May 5, 1994, Dr. Joseph Hegstad, Chair of the Music Division, notified Dimond of his intent to recommend Dimond's dismissal for cause. Through an attorney, Dimond objected to the dismissal on May 12, 1994. The next day, Dr. Hegstad recommended Dimond's dismissal to MSU president, Dr. Eric Shaar. Also on May 13, 1994, Dr. Shaar notified Dimond of his dismissal for adequate cause, under State Board of Higher Education Policy Section 605.

[¶ 3] Dimond sought review of his termination by a Special Review Committee. On October 26, 1994, this committee declared itself unable to resolve the issue and recommended Dimond's case be transferred to the Standing Committee on Faculty Rights ("Standing Committee"). The Standing Committee held hearings on February 25-26, 1995. Its final report recommended Dimond take medical leave and his employment then be re-evaluated. On May 10, 1995, Dr. Shaar affirmed Dimond's dismissal, rejecting medical leave because he believed it an inappropriate sanction for Dimond's conduct. Dimond's dismissal became effective May 15, 1995.

[¶ 4] Dimond appealed his termination to the State Board of Higher Education. Administrative hearings were held on August 15-16, 1995, and September 15, 1995, before Administrative Law Judge ("ALJ") Bonny Fetch. ALJ Fetch upheld Dimond's dismissal, concluding MSU showed sufficient cause to terminate him.

[¶ 5] On August 8, 1997, Dimond began a lawsuit against the state, from which this appeal arises. The Board, representing the state, filed a motion to dismiss, arguing that the district court lacked subject matter jurisdiction because Dimond failed to comply with N.D.C.C. §§ 32-12-03 and 32-12.2-04, both of which require plaintiffs to present potential claims against the state to state entities before initiating a lawsuit.

[¶ 6] The court denied the Board's motion to dismiss on March 11, 1999. In his memorandum decision, the trial judge wrote:

It is the State's apparent position that the appellate process ends with the Board's decision. Plaintiff was notified he would be fired on May 5, 1994. When he had exhausted his administrative remedies, it was March 17, 1996. Assuming that NDCC 32-12.2-04 applies to a contract claim, which seems unlikely, the 180 days had clearly passed. The State seems chiefly interested in denying the plaintiff a hearing before any court.
Perhaps that is the law. I will not so rule.

[¶ 7] The Board then filed a motion to alter or amend the decision, but in the alternative, asked the trial court to certify the case under N.D.R.Civ.P. 54(b). The judge denied the Board's motion to alter or amend and granted the motion for certification under Rule 54(b). As to the certification, the lower court wrote:

In so ordering, the court expressly finds there is no just reason for delay of entry of judgment as to the court's denial of the Board's jurisdiction defense. The court hereby orders that a final judgment should be entered concerning the Board's jurisdiction defense....

[¶ 8] This appeal ensued.

II.

[¶ 9] As a general rule, this Court will not hear appeals from interlocutory orders. Such appeals are premature, because the trial court may revise interlocutory orders at any time before the entry of final judgment adjudicating all claims. Belden v. Hambleton, 554 N.W.2d 458, 460 (N.D.1996). Thus, our refusal to hear appeals arising from interlocutory orders conserves judicial resources by promoting a policy against piecemeal appeals. Gessner v. City of Minot, 529 N.W.2d 868, 870 (N.D.1995).

[¶ 10] In order to invoke our jurisdiction over an interlocutory order, an appeal must satisfy two separate jurisdictional criteria. First, the order appealed from must be of a type enumerated by N.D.C.C. § 28-27-02. Mitchell v. Sanborn, 536 N.W.2d 678, 681 (N.D.1995). Second, the lower court must properly certify the case under N.D.R.Civ.P. 54(b). Id. Rule 54(b) requires the trial court to include in its certification an "express determination that there is no just reason for delay and... an express direction for the entry of judgment." We conclude this appeal meets neither requirement.

A.

[¶ 11] Section 28-27-02, N.D.C.C., confines this Court's appellate jurisdiction by enumerating the types of trial court orders which "may be carried to the supreme court." The Board contends this appeal, which arises from the denial of its motion to dismiss, falls within N.D.C.C. § 28-27-02(5) because the order issued below involved "the merits of an action or some part thereof." The Board cites no precedent to support this proposition. We conclude that long established North Dakota case law consistently and squarely contradicts the Board's assertion.

[¶ 12] In Security Nat'l. Bank of Fargo v. Bothne, 56 N.D. 269, 217 N.W. 148, 149 (1927), this Court held the denial of a motion to dismiss is a non-appealable interlocutory order. We also specifically have held the denial of a motion to dismiss for lack of jurisdiction is non-appealable. Blue Arm v. Volk, 254 N.W.2d 427, 428 (N.D.1977); Grenz v. O'Rourke, 235 N.W.2d 881, 884 (N.D.1975). In addition, our court previously considered N.D.C.C. § 28-27-02(5), the very subsection cited by the Board, explicitly concluding the denial of a motion to dismiss for lack of jurisdiction does not involve the merits of a claim. Schaff v. Kennelly, 69 N.W.2d 777, 779-80 (N.D.1955). Rather the denial of a motion to dismiss, like the denial of a motion for summary judgment, is "merely interlocutory and, leaving the case pending for trial, it decides nothing, except that the parties may proceed with the case." Rude v. Letnes, 154 N.W.2d 380, 381 (N.D.1967). Thus, this appeal fails the first criteria.

B.

[¶ 13] We also conclude the appeal fails the second criteria because Rule 54(b) certification should not have been granted. We review the certification to determine if the trial court abused its discretion. Mitchell, 536 N.W.2d at 681. Rule 54(b) states:

If more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or if multiple parties are involved, 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 upon an express direction for the entry of judgment....

[¶ 14] The rule's language expressly applies only to suits involving multiple claims or parties. The present appeal simply does not fall within this language. First, Dimond's complaint does not clearly state multiple claims for relief, but rather contains a contract claim and some additional, vague language requesting tort-type relief. Even assuming Dimond's suit contains multiple claims, the lower court in this case certified the entire case for our review, rather than "one or more but fewer than all of the claims...." Second, Dimond's action does not involve "multiple parties" where judgment has been entered as to "one or more but fewer than all of the ... parties." Rather this action involves one plaintiff and one defendant.

[¶ 15] In addition, we determine this appeal does not meet the standards for Rule 54(b) certification set forth in our prior decisions. We have stated that Rule 54(b) certification is available only in the "`infrequent harsh case' warranting the extraordinary remedy of an otherwise interlocutory appeal." Mitchell, 536 N.W.2d at 681-82. For Rule 54(b) certification to be valid, the party seeking certification must demonstrate that without it prejudice or hardship will result, such that the case's circumstances are "unusual and compelling" or "out-of-the-ordinary." Id. at 682.

[¶ 16] First, we note that in granting the certification, the trial court merely repeated the language of Rule 54(b). We have explained that when the lower court certifies an appeal it must "delineate unusual or compelling circumstances justifying Rule 54(b) certification," rather than simply parrot the language of the rule. Sickler v. Kirkwood, 1997 ND 40, ¶¶ 6-7, 560 N.W.2d 532. The court below did not justify the certification in any way; it did not delineate a single unusual or compelling factor presented by this case that would distinguish it from any other interlocutory appeal. Thus the court below did not comply adequately with our standards.

[¶ 17] Second, both in the proceedings below and on appeal, the Board justified certification by arguing that litigation expenses would work a substantial hardship on both parties, yet it provided nothing to support this claim. In Mitchell, the litigants declared a trial would be an expensive, economic hardship, but provided no specific information about the extent of that hardship. 536 N.W.2d at 682. Faced with only general assertions, we decided that appeal did not deserve certification. Id. The same is true here. As the party seeking certification, the Board was required to show this appeal differs...

To continue reading

Request your trial
22 cases
  • Wilkinson v. Bd. of Univ. & Sch. Lands of State
    • United States
    • North Dakota Supreme Court
    • November 10, 2022
    ...The November 2015 order denied the Land Board's motion to dismiss. Thus, the order was not an appealable order. Dimond v. State ex rel. State Bd. of Higher Educ. , 1999 ND 228, ¶ 12, 603 N.W.2d 66 (concluding that denial of a motion to dismiss is a non-appealable, interlocutory order). Furt......
  • Mann v. ND Tax Comm'r
    • United States
    • North Dakota Supreme Court
    • February 16, 2005
    ...only in the "`infrequent harsh case'" warranting the extraordinary remedy of an otherwise interlocutory appeal. Dimond v. State Bd. of Higher Educ., 1999 ND 228, ¶ 15, 603 N.W.2d 66. For Rule 54(b) certification to be valid, the party seeking certification must demonstrate that without it p......
  • Wilkinson v. The Bd. of Univ. & Sch. Lands of the State
    • United States
    • North Dakota Supreme Court
    • November 10, 2022
    ...motion to dismiss. Thus, the order was not an appealable order. Dimond v. State ex rel. State Bd. of Higher Educ, 1999 ND 228, ¶ 12, 603 N.W.2d 66 (concluding that denial of a motion to dismiss is a interlocutory order). Further, because the issue implicates the court's subject matter juris......
  • Forum Communications Co. v. Paulson
    • United States
    • North Dakota Supreme Court
    • July 7, 2008
    ...remedy: Our authority to issue supervisory writs derives from N.D. Const. art. VI, § 2, and N.D.C.C. § 27-02-04. Dimond v. State Bd. of Higher Educ., 1999 ND 228, ¶ 19, 603 N.W.2d 66. The authority to issue supervisory writs is discretionary; it cannot be invoked as a matter of right. Trini......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT