Ceartin v. Ochs, No. 910164

CourtUnited States State Supreme Court of North Dakota
Writing for the CourtLEVINE; ERICKSTAD; H.F. Gierke, III
Citation479 N.W.2d 863
PartiesDale CEARTIN, Plaintiff and Appellant, v. Thomas OCHS and Koch Industries, Defendants and Appellees. Civ.
Docket NumberNo. 910164
Decision Date14 January 1992

Page 863

479 N.W.2d 863
Dale CEARTIN, Plaintiff and Appellant,
v.
Thomas OCHS and Koch Industries, Defendants and Appellees.
Civ. No. 910164.
Supreme Court of North Dakota.
Jan. 14, 1992.

Thomas A. Dickson of Nodland & Dickson, Bismarck, for plaintiff and appellant.

Randall J. Bakke of Fleck, Mather & Strutz, Bismarck, for defendants and appellees; appearance by Scott Porsborg.

LEVINE, Justice.

This appeal from an order granting a new trial raises the question whether, in light of our developing doctrine of finality for appeals, an order granting a new trial is appealable without Rule 54(b) certification.

Page 864

We hold it is not and dismiss this appeal.

Dale Ceartin was injured in a two-car accident. Thomas Ochs, the driver of the second vehicle, was employed by Koch Industries and driving its vehicle. Ceartin sued Ochs and Koch Industries. The case was tried before a nine-person jury. During the trial, the motor vehicle crash report which referred to Koch's insurance carrier was inadvertently introduced as an exhibit. During closing arguments, counsel for Ceartin remarked that Ochs would not be held personally responsible for damages.

The jury awarded Ceartin $124,021.22, but found him thirty-five percent negligent. Forty-six thousand dollars of the total award was for future economic damages. Koch Industries and Ochs moved for a new trial, claiming they were prejudiced by the explicit and implicit references to insurance. In the alternative, they moved to reduce the $46,000, arguing that there was insufficient evidence to justify that amount. Because of the perceived adverse impact of the introduction of the insurance information and the remarks of Ceartin's counsel during closing arguments, the trial court set aside the jury verdict and ordered a new trial or, in the alternative, remittitur of $46,000. Ceartin appealed from that order.

Neither party has raised the issue of appealability but we may consider appealability sua sponte and we do so in this case. Peterson v. Zerr, 443 N.W.2d 293 (N.D.1989). In Gast Construction Co. v. Brighton Partnership, 422 N.W.2d 389 (N.D.1988), we explained the juxtaposition of the orders described in NDCC Sec. 28-27-02 1 that "may be carried to the supreme court" and what it takes to make those orders immediately appealable. We recognized that the first step in the appeal process is that the order appealed from must be included within NDCC Sec. 28-27-02. Once that requirement is met, there must be compliance with Rule 54(b), NDRCivP.

Rule 54(b) provides:

"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 the express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of that determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties does not 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."

Page 865

Rule 54(b) authorizes the trial court to direct the entry of a final judgment (from which an appeal may be taken) on less than all claims if the court expressly finds that there is no just reason for delay and if the court expressly directs entry of judgment. However, the rule is to be applied cautiously. See Union State Bank v. Woell, 357 N.W.2d 234 (N.D.1984). While the decision to grant Rule 54(b) certification is discretionary, certification should be granted only after the court considers the relevant factors set out in Woell, as well as other relevant factors that may bear upon a particular case. The rule is designed to deter piecemeal appeals and it is up to the trial court to weigh the policy against piecemeal appeals "against the exigencies" of a particular case. Id. See also Explanatory Note to NDRCivP 54(b). Ordinarily, a Rule 54(b) certification is reserved for the infrequent harsh case. Peterson v. Zerr, 443 N.W.2d at 297. In the absence of a Rule 54(b) certification, an appeal may not be taken if there are claims which remain unadjudicated. See Gillmore v. Morelli, 425 N.W.2d 369 (N.D.1988).

An order granting a new trial is an appealable order under NDCC Sec. 28-27-02. Rule 54(b) is thus applicable to an order...

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18 practice notes
  • B.H. v. K.D., No. 920383
    • United States
    • United States State Supreme Court of North Dakota
    • September 8, 1993
    ...an order must satisfy a two-step process. See, e.g., Nesvig v. Anderson Bros. Constr. Co., 490 N.W.2d 478 (N.D.1992); Ceartin v. Ochs, 479 N.W.2d 863 (N.D.1992); Gissel v. Kenmare Township, 463 N.W.2d 668 (N.D.1990); Peterson v. Zerr, 443 N.W.2d 293 (N.D.1989); Sargent County Bank v. Wentwo......
  • State v. Fischer, No. 20060153.
    • United States
    • North Dakota Supreme Court
    • February 28, 2007
    ...879 (5th Cir.1998) (citing 16A Charles Alan Wright et al., Federal Practice and Procedure § 3950.3 (2d ed.1996)); cf. Ceartin v. Ochs, 479 N.W.2d 863, 865 (N.D.1992) (stating that an order granting a new trial is subject to more limited appellate review than an order denying a new trial). A......
  • Fargo Women's Health Organization, Inc. v. Lambs of Christ, No. 920005
    • United States
    • United States State Supreme Court of North Dakota
    • August 19, 1992
    ...injunction. Neither party has raised the issue of appealability but we may consider that issue upon our own motion. Ceartin v. Ochs, 479 N.W.2d 863 (N.D.1992). Section 28-27-02(3), NDCC, provides, in part, that "[a]n order which grants, refuses, continues, or modifies a provisional remedy, ......
  • Henry v. SECURITIES COMM'R FOR STATE, No. 20020155-20020157.
    • United States
    • North Dakota Supreme Court
    • April 15, 2003
    ...because it "does not provide the ultimate decision" in the case and questions remained before the district court); Ceartin v. Ochs, 479 N.W.2d 863, 865 (N.D. 1992) (holding order granting a new trial is not a final appealable order because it "does not terminate the action or any of the cla......
  • Request a trial to view additional results
18 cases
  • B.H. v. K.D., No. 920383
    • United States
    • United States State Supreme Court of North Dakota
    • September 8, 1993
    ...an order must satisfy a two-step process. See, e.g., Nesvig v. Anderson Bros. Constr. Co., 490 N.W.2d 478 (N.D.1992); Ceartin v. Ochs, 479 N.W.2d 863 (N.D.1992); Gissel v. Kenmare Township, 463 N.W.2d 668 (N.D.1990); Peterson v. Zerr, 443 N.W.2d 293 (N.D.1989); Sargent County Bank v. Wentwo......
  • State v. Fischer, No. 20060153.
    • United States
    • North Dakota Supreme Court
    • February 28, 2007
    ...879 (5th Cir.1998) (citing 16A Charles Alan Wright et al., Federal Practice and Procedure § 3950.3 (2d ed.1996)); cf. Ceartin v. Ochs, 479 N.W.2d 863, 865 (N.D.1992) (stating that an order granting a new trial is subject to more limited appellate review than an order denying a new trial). A......
  • Fargo Women's Health Organization, Inc. v. Lambs of Christ, No. 920005
    • United States
    • United States State Supreme Court of North Dakota
    • August 19, 1992
    ...injunction. Neither party has raised the issue of appealability but we may consider that issue upon our own motion. Ceartin v. Ochs, 479 N.W.2d 863 (N.D.1992). Section 28-27-02(3), NDCC, provides, in part, that "[a]n order which grants, refuses, continues, or modifies a provisional remedy, ......
  • Henry v. SECURITIES COMM'R FOR STATE, No. 20020155-20020157.
    • United States
    • North Dakota Supreme Court
    • April 15, 2003
    ...because it "does not provide the ultimate decision" in the case and questions remained before the district court); Ceartin v. Ochs, 479 N.W.2d 863, 865 (N.D. 1992) (holding order granting a new trial is not a final appealable order because it "does not terminate the action or any of the cla......
  • Request a trial to view additional results

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