Central Power Elec. Co-op., Inc. v. C-K, Inc.

• Citation: 512 N.W.2d 711
• Decision Date: 01 March 1994
• Docket Number: No. 930258,C-,I,INC,930258
• Parties: CENTRAL POWER ELECTRIC COOPERATIVE, INC., a corporation, Plaintiff and Appellee, v., a corporation, Bottineau, ND, Gordon D. Carlson, Robert R. Kromrey, Rose M. Carlson, as officers ofnc.; Gordon D. Carlson, Robert R. Kromrey and Rose M. Carlson, as individuals, Defendants and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 711

512 N.W.2d 711

CENTRAL POWER ELECTRIC COOPERATIVE, INC., a corporation Plaintiff and Appellee, v. C-K, INC., a corporation, Bottineau, ND, Gordon D. Carlson Robert R. Kromrey, Rose M. Carlson, as officers of C-K Inc.; Gordon D. Carlson, Robert R. Kromrey and Rose M Carlson, as individuals, Defendants and Appellants.

Civ. No. 930258.

Supreme Court of North Dakota.

March 1, 1994.

Richard G. Hurdelbrink (argued), Vogel Law Firm, Mandan, for defendants and appellants.

Mark R. Hays (argued), Pringle & Herigstad, PC, Minot, for plaintiff and appellee.

NEUMANN, Justice.

This is an appeal from a district court order granting partial summary judgment in an eminent domain proceeding. We lack jurisdiction, decline to exercise our supervisory powers, and, accordingly, dismiss.

Central Power Electric Cooperative, a corporation (hereinafter Condemnor), is a rural electric generation and transmission cooperative. As part of a joint venture of Condemnor and Otter Tail Power Company, a new substation was built just outside of Bottineau, North Dakota. Part of this project included the construction of a transmission line from Gardena to Bottineau. The property touched by the proposed route for the new line included a residential mobile home park owned by C-K, Inc., a corporation, and Gordon D. Carlson, Robert R. Kromrey, and Rose M. Carlson (hereinafter Landowners).

After failed negotiations, eminent domain proceedings under chapter 32-15 of the North Dakota Century Code were initiated by Condemnor on March 8, 1993, when it served a summons and complaint on Landowners. Landowners timely filed an answer in which they requested a trial by jury on the matter of damages. ¹ On May 7, 1993, Condemnor made a motion to the court requesting partial summary judgment as to use and necessity for an easement upon a portion of Landowners' mobile home park. This motion was accompanied by affidavits of Kenneth D. Holand, Project Supervisor for Condemnor, and Jay Jacobson, Manager of Operations and Engineering for Condemnor. Landowners' response in opposition to this motion included an affidavit of Gordon D. Carlson which set forth two alternative routes for the transmission line. By order dated June 2, 1993, the trial court granted Condemnor's motion for partial summary judgment.

The partial summary judgment order, drafted by Condemnor, granted Condemnor a transmission line easement on a portion of Landowners' property, and conditioned this easement "upon the payment of $2,500 into the Court by [Condemnor] pending determination of actual damages." Immediately thereafter, prior to any determination of damages by a jury, Condemnor deposited $2,500 with the court and constructed the transmission line across Landowners' property. This appeal followed.

Landowners raise three issues on appeal: first, whether the trial court violated NDCC Sec. 32-15-29 when it made a determination of damages without a hearing on the merits, and when it granted Condemnor possession of an easement on Landowners' property prior to a hearing on damages; second, whether the granting of partial summary judgment was proper; and third, whether the order for partial summary judgment in this matter is a final order.

I. APPEALABILITY

Condemnor has made a motion to this court requesting that we dismiss the appeal and award attorney's fees. In its motion, Condemnor argues that this partial summary judgment order is not subject to appeal under NDCC Sec. 28-27-02, and also that there has been no Rule 54(b) certification. We agree that this order is not appealable because of the lack of Rule 54(b) certification.

There is a well-established, two-prong inquiry used when analyzing the jurisdiction of this court to consider appeals from orders in cases where there are unadjudicated claims remaining to be resolved by the trial court. E.g., Thompson v. Goetz, 455 N.W.2d 580 (N.D.1990). The first of the two requirements is that the intermediate order appealed from must satisfy one of the enumerated bases for appeal found in NDCC Sec. 28-27-02. E.g., Klindtworth v. Burkett, 477 N.W.2d 176 (N.D.1991). The second requirement is a Rule 54(b) certification by the trial court. Id.; N.D.R.Civ.P. Rule 54(b).

In determining the appealability of this particular order granting partial summary judgment, we acknowledge that under the unique set of facts surrounding this case, this interlocutory order may well involve the merits of the action, or at least some part thereof. See NDCC Sec. 28-27-02(5). Although not all orders granting partial summary judgment fall within Sec. 28-27-02, see e.g., Kavaney Realtor & Developer, Inc. v. Travelers Ins. Co., 501 N.W.2d 335, 336 n. 1 (N.D.1993) (order for partial summary judgment not appealable under NDCC Sec. 28-27-02, but reviewable upon appeal from judgment); see also Piccagli v. North Dakota State Health Dept., 319 N.W.2d 484 (N.D.1982) (order for summary judgment did not fall within Sec. 28-27-02(5)), the fact that the order allowed Condemnor to construct the transmission line prior to the jury trial on damages gives this order an element of finality. See Sime v. Tvenge Assocs. Architects & Planners, P.C., 488 N.W.2d 606, 608 n. 1 (N.D.1992) (one concern when determining whether an order is appealable under NDCC Sec. 28-27-02 is whether the trial court meant it to be final). We refrain from deciding this particular issue in this case. Instead, we focus on the fact that this order fails to meet the requirements of prong two, due to the absence of a Rule 54(b) certification.

Not only do we require Rule 54(b) certification for appeals of orders for partial summary judgment, Ceartin v. Ochs, 479 N.W.2d 863, 865-66 n. 2 (N.D.1992); Gissel v. Kenmare Township, 463 N.W.2d 668 (N.D.1990); Regstad v. Steffes, 433 N.W.2d 202 (N.D.1988); Brown v. Will, 388 N.W.2d 869 (N.D.1986), but traditionally, we have also relied on the second prong of this test when determining the appealability of eminent domain cases after a finding of use and necessity, but prior to a determination of damages, Wells County Water Resource Dist. v. Solberg, 434 N.W.2d 577 (N.D.1989) (dismissed appeal; order upholding public necessity of easement with no Rule 54(b) certification); Otter Tail Power Co. v. Demchuk, 314 N.W.2d 298 (N.D.1982) (dismissed appeal; interlocutory orders without Rule 54(b) certification, prior to determination of damages). Regardless of the outcome of prong one, for purposes of this opinion, the failure of prong two makes this order unappealable. ²

II. SUPERVISION

Because Landowners essentially concede in their appellate brief that this order is not appealable without Rule 54(b) certification, we consider this appeal as a request to exercise our supervisory jurisdiction. N.D. Const. art. VI, Sec. 2; see B.H. v. K.D., D.D., 506 N.W.2d 368, 372 (N.D.1993) ("This Court has authority to exercise its original jurisdiction by issuing a supervisory writ."). Exercise of our supervisory jurisdiction is a matter of discretion, and we exercise it rarely and cautiously. Jane H. v. Rothe, 488 N.W.2d 879, 881 (N.D.1992). "Our superintending control over inferior courts is used to prevent injustice in extraordinary cases where no other remedy is adequate or allowed by law." Odden v. O'Keefe, 450 N.W.2d 707, 708 (N.D.1990). We make determinations of whether to exercise supervisory jurisdiction on a case-by-case basis, looking at the unique set of circumstances of each case. E.g., Heartview Found. v. Glaser, 361 N.W.2d 232 (N.D.1985).

Landowners would have us believe that the nature of this case is extraordinary, and, as such, merits our review. They distinguish the facts of this case from those of a typical eminent domain proceeding under chapter 32-15 of the North Dakota Century Code; specifically, the fact that Condemnor was allowed to construct the transmission line on the property before damages were determined and before final judgment was entered. Section 32-15-29 of the North Dakota Century Code does not provide for quick take, it provides for possession after judgment. Landowners' argument of the impropriety of Condemnor's actions is based on what we said in Johnson v. Wells County Water Resource Bd., 410 N.W.2d 525 (N.D.1987). In Johnson, we decided that the quick-take eminent domain constitutional provision ³ was not self-executing. Id. Absent specific legislative granting of the power of quick take, the state, or any of its departments, agencies, or political subdivisions having the power of eminent domain, lack the power to exercise quick take. Id. Condemnor does not contest Landowners' argument that no such legislative grant of the quick-take power has been granted to electrical cooperatives such as Condemnor.

If the contentions Landowners are making are true, then this may indeed be an unjust and extraordinary case warranting our supervision. The possible illegality and unconstitutionality of such an act is made clear in Johnson, 410 N.W.2d at 525. The diminished protection of property owners that is inherent in quick-take proceedings, id., is the root of Landowners' complaint in this appeal. Such vulnerability is exacerbated by Landowners' contention that quick take was never addressed at trial, and only reared its ugly head when Condemnor incorporated it into the order it drafted for the judge to sign.

If we could stop our analysis here, we would surely grant supervision; however, we must also consider whether other adequate remedies exist. Lang v. Glaser, 359 N.W.2d 884 (N.D.1985). Landowners failed to seek a stay or reconsideration by the trial court, and the transmission line has already been constructed on Landowners' property. If Condemnor's actions are found to be illegal or unconstitutional, it seems to us that a significant portion of any damages that might exist have already been incurred. The element of urgency does not exist. The order granting partial summary judgment will be appealable after damages are determined and...