City of W. Fargo v. McAllister

Decision Date22 July 2021
Docket NumberNo. 20200324,20200324
Citation962 N.W.2d 591
Parties CITY OF WEST FARGO, a political subdivision of the State of North Dakota, Plaintiff and Appellee v. Mark Alexander MCALLISTER, Defendant and Appellant and Alerus Financial, N.A.; and all other persons unknown claiming an estate or interest in or lien or encumbrance upon the real property described in the Complaint, whether as heirs, devisees, personal representatives, creditors or otherwise, Defendants
CourtNorth Dakota Supreme Court

Christopher M. McShane, West Fargo, ND, for plaintiff and appellee.

Jonathan T. Garaas, Fargo, ND, for defendant and appellant.

VandeWalle, Justice.

[¶1] Mark McAllister appealed from a judgment allowing the City of West Fargo to use its quick-take eminent domain power to acquire a right of way across his property. Because we conclude that the district court inappropriately granted the N.D.R.Civ.P. 54(b) order certifying the judgment as final, we dismiss the appeal.

I

[¶2] In August 2017, West Fargo passed a resolution determining it was necessary to construct a sewer improvement project. The project consisted of the design and installation of two sewer pipes between West Fargo and Fargo. To complete the project, West Fargo had to acquire a right of way across certain private property, including McAllister's.

[¶3] West Fargo sued McAllister, seeking to use its quick-take eminent domain power to acquire immediate possession of a right of way across McAllister's property. West Fargo appraised the compensation for the property rights obtained on McAllister's property at $36,000 and deposited that amount with the clerk of court. McAllister resisted, arguing West Fargo was prohibited from taking immediate possession of a right of way across his property. After an evidentiary hearing, the district court concluded West Fargo was entitled to take immediate possession of a right of way across McAllister's property.

[¶4] Before the trial on the issue of McAllister's just compensation, West Fargo moved to exclude testimony that the taking caused McAllister's property to become nonconforming under West Fargo City Ordinances based on front yard setback requirements. The district court granted the motion, concluding as a matter of law that the easement obtained by West Fargo had no effect on the front yard setback requirements under the West Fargo City Ordinances and ordered that testimony relating to that issue would be excluded at trial.

[¶5] The parties stipulated to the entry of a condemnation judgment in favor of West Fargo. West Fargo agreed to pay McAllister $36,000; however, the determination of McAllister's costs and disbursements, including attorney's fees and appraisal expenses, was reserved for a later date. The parties also stipulated to the entry of an order certifying the condemnation judgment as final under N.D.R.Civ.P. 54(b). The district court entered a condemnation judgment and certified the judgment as final under Rule 54(b).

II

[¶6] Before reaching the merits of McAllister's appeal, we consider whether the district court appropriately ordered entry of a final judgment under N.D.R.Civ.P. 54(b) before the determination of McAllister's costs and disbursements. We review a district court's decision to grant N.D.R.Civ.P. 54(b) certification under an abuse-of-discretion standard. Capps v. Weflen , 2013 ND 16, ¶ 6, 826 N.W.2d 605. A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, when its decision is not the product of a rational mental process leading to a reasoned determination, or when it misinterprets or misapplies the law. Id.

[¶7] Rule 54(b), N.D.R.Civ.P., preserves our long-standing policy against piecemeal appeals, and provides:

If an action presents more than one claim for relief, whether as a claim, counterclaim, crossclaim, or third-party claim, or if multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.

[¶8] The district court should consider the following factors articulated by this Court when deciding a request for Rule 54(b) certification:

(1) the relationship between the adjudicated and unadjudicated claims; (2) the possibility that the need for review might or might not be mooted by future developments in the district court; (3) the possibility that the reviewing court might be obliged to consider the same issue a second time; (4) the presence or absence of a claim or counterclaim which could result in setoff against the judgment sought to be made final; (5) miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like.

Capps , 2013 ND 16, ¶ 8, 826 N.W.2d 605 (quoting Pifer v. McDermott , 2012 ND 90, ¶ 10, 816 N.W.2d 88 ). "A N.D.R.Civ.P. 54(b) certification should not be routinely granted and is reserved for cases involving unusual circumstances where failure to allow an immediate appeal would create a demonstrated prejudice or hardship." Capps , at ¶ 7.

[¶9] The district court's Rule 54(b) order s...

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3 cases
  • Energy Transfer LP v. N.D. Private Investigative & Sec. Bd.
    • United States
    • North Dakota Supreme Court
    • 28 Abril 2022
    ...shortening the time of trial, frivolity of competing claims, expense, and the like. City of West Fargo v. McAllister , 2021 ND 136, ¶ 8, 962 N.W.2d 591 (quoting Capps v. Weflen , 2013 ND 16, ¶ 8, 826 N.W.2d 605 ). We review a decision to grant N.D.R.Civ.P. 54(b) certification for an abuse o......
  • City of W. Fargo v. McAllister
    • United States
    • North Dakota Supreme Court
    • 12 Mayo 2022
    ...requirements. We affirm.I[¶2] The relevant facts of this case are recited in City of W. Fargo v. McAllister , 2021 ND 136, ¶¶ 2-5, 962 N.W.2d 591 :In August 2017, West Fargo passed a resolution determining it was necessary to construct a sewer improvement project. The project consisted of t......
  • Froehlich v. Froehlich
    • United States
    • North Dakota Supreme Court
    • 22 Julio 2021

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