Cohen v. Owens & Company, Inc.

• Decision Date: 07 July 1983
• Docket Number: No. 82-1432.,82-1432.
• Citation: 464 A.2d 904
• Court: D.C. Court of Appeals
• Parties: Bernard COHEN, Appellant, v. OWENS & COMPANY, INC., et al., Appellate.

Page 904

464 A.2d 904

Bernard COHEN, Appellant, v. OWENS & COMPANY, INC., et al., Appellate.

No. 82-1432.

District of Columbia Court of Appeals.

Argued April 21, 1983.

Decided July 7, 1983.

As Amended August 31, 1983.

Helen E. Marmoll, Washington, D.C., for appellant.

John R. Keys, Jr., Washington, D.C., with whom Hurd Baruch and Edward F. Gerwin, Jr., Washington, D.C., were on the brief, for appellees.

Before NEBEKER, PRYOR and TERRY, Associate Judges.

TERRY, Associate Judge:

This is an appeal from an order of the trial court granting partial summary judgment in favor of the appellees, Oil Well Equipment 1980 Limited Partnership (hereinafter "Oil Well") and Owens & Company, Inc. Appellant challenges that order on several grounds. We dismiss the appeal for lack of jurisdiction.

I

Oil Well is a limited partnership comprised of one general partner, Owens & Company, and eighteen limited partners, including appellant Cohen. This litigation arises from the actions of appellant and some of the other limited partners to replace Owens & Company as a general partner with Cohen, in apparent violation of the partnership agreement. Appellees filed a complaint alleging that appellant had interfered with the contractual relationships of Oil Well. The complaint sought damages as well as dissolution of the partnership. Appellant filed an answer and counterclaim alleging instances of mismanagement, fraud, misrepresentation, and incompetence on the part of Owens & Company, along with a claim for a breach of fiduciary duty based on asserted violations of federal securities laws.

Appellees filed a motion for partial summary judgment, seeking a declaration that Owens & Company was the sole legitimate general partner in Oil Well and that any action by appellant or other limited partners to replace Owens & Company as general partner was null and void. Appellant responded with an opposition and a cross-motion for partial summary judgment on the same issue.¹ Both motions were supported by affidavits. The trial court, after a hearing, entered an order granting appellees' motion, which it then stayed pending the outcome of this appeal. The court did not make either "an express determination that there [was] no just reason for delay" or "an express direction for the entry of judgment" on appellees' motion, pursuant to Super.Ct.Civ.R. 54(b),² nor did appellant ever request the court to do so.

II

The trial court's order established only that Owens & Company was the sole legitimate general partner and that appellant's attempt to oust it was ineffective. Hence only one part of one claim was decided, that being the issue of who was the general partner. In no way did the court's order fully decide any, let alone all, of the claims between the parties. Two of the unresolved claims were by appellees for damages arising from appellant's alleged interference with their contractual relationships and for dissolution of the partnership. Appellant also had several claims pending for various business torts, breach of fiduciary duty, and an accounting. For appellant to assert as he does that all of these claims were necessarily decided by the trial court's ruling is, to say the least, remarkable especially when that ruling is, under Rule 54(b), "subject to revision at any time" before the entry of final judgment.

An order granting partial summary judgment as to a single issue in a case is not a final, appealable order. Gomez v. Turner, 217 U.S.App.D.C. 281, 285 n. 5, 672 F.2d 134, 138 n. 5 (1982); Acha v. Beame, 570 F.2d 57, 62-63 (2d Cir. 1978); Gray Line Motor Tours, Inc. v. City of New Orleans, 498 F.2d 293, 295 (5th Cir. 1974); Fidelity &amp Casualty Co. v. Carll Ramagosa, Inc., 365 F.2d 303 (3d Cir. 1966); Leonard v. Socony-Vacuum Oil Co., 130 F.2d 535, 536 (7th Cir. 1942). This was made abundantly clear by the Advisory Committee on Rules in its discussion of FED.R.CIV.P. 56(d),³ which sets forth the procedures to be followed by a trial court in ruling on a motion for partial summary judgment:

Rule 54(c) defines "judgment" as including a decree and "any order from which an appeal lies." Subdivision (d) of Rule 56 indicates clearly, however, that a partial summary judgment is not a final judgment, and, therefore, that it is not appealable, unless in the particular case some statute allows an appeal from the interlocutory order involved. The partial summary judgment is merely a pretrial adjudication that certain issues shall be deemed established for the trial of the case. This adjudication is more nearly akin to the preliminary order under Rule 16, and likewise serves the purpose of speeding up litigation by eliminating before trial matters wherein there is no genuine issue of fact.

5 F.R.D. 433, 475 (1946) (emphasis added).

Appellant argues that because the issue decided by the trial court was of great importance to the outcome of the case, appellate review is appropriate at this juncture. He cites no authority to support this assertion, and, to our knowledge, none exists. The fact that the issue before the court on a motion for partial summary judgment is important, or even critical to the disposition of the case, is of no legal consequence in deciding the question of appellate jurisdiction. Simply put, appellate review of an order granting partial summary judgment is not available until all the claims, counterclaims, cross-claims, and third-party claims in the case have been decided, unless the trial court follows Rule 54(b) to the letter and makes the necessary certification, or unless the order is otherwise appealable under a specific statute.⁴

The importance of a Rule 54(b) certification should not be underestimated. The decision to certify a case under Rule 54(b) is entrusted to the sound discretion of the trial court, which must weigh in the balance several factors, some of which are often in tension, if not outright conflict. See Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 7-13, 100 S.Ct. 1460, 1464-1466, 64 L.Ed.2d 1 (1980). That discretion was not even invoked in this case. Even if it had been, it does not appear that certification would have been possible, for the order granting partial summary judgment did not decide an entire claim but only a single issue, albeit a major issue underlying several of the pending claims and directly pertinent to one. See Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976); Acha v. Beame, supra, 570 F.2d at 62; Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 470 (2d Cir. 1969) ("the partial adjudication of a single claim is not appealable regardless of whether there is a Rule 54(b) certificate . . .").

III

This is at least the fourth appeal in the last six months which we have had to dismiss on jurisdictional grounds for non-compliance with Rule 54(b).⁵ This fact suggests to us that the bar in general is not as familiar with that rule as it should be. Before rushing to file a notice of appeal from a trial court order that does not completely terminate a case, counsel should stop to consider whether the order is appealable. Patently dismissible appeals place an unnecessary and unwarranted burden on an already overburdened court.

We are particularly disappointed in this case by appellees' failure to file a motion to dismiss the appeal before the briefs were filed. Such a motion would have been considered by a two-judge motions division, involving a third judge only if the first two could not agree. See D.C. APP. INTERNAL OPERATING PROCEDURES § IV ...