Dinger ex rel. Dinger v. Strata Corp.

• Decision Date: 21 March 2000
• Docket Number: No. 990141.,990141.
• Citation: 2000 ND 41,607 N.W.2d 886
• Parties: Deloris A. DINGER, by and through her attorney in fact, Dale L. DINGER, and Dale L. Dinger, individually, Plaintiffs and Appellants, v. STRATA CORPORATION, a corporation, and Traffic Safety Services, Inc., a corporation, Defendants and Appellees.
• Court: North Dakota Supreme Court

607 N.W.2d 886

2000 ND 41

Deloris A. DINGER, by and through her attorney in fact, Dale L. DINGER, and Dale L. Dinger, individually, Plaintiffs and Appellants, v. STRATA CORPORATION, a corporation, and Traffic Safety Services, Inc., a corporation, Defendants and Appellees.

No. 990141.

Supreme Court of North Dakota.

March 21, 2000.

Rehearing Denied April 5, 2000.

Leland F. Hagen, Lee Hagen Law Office, Ltd., Fargo, ND, for plaintiffs and appellants.

Jay H. Fiedler, Pearson Christensen, Grand Forks, ND, and Stephen W. Plambeck, Nilles, Hansen & Davies, Ltd., Fargo, ND, for defendants and appellees.

KAPSNER, Justice.

[¶ 1] Deloris A. Dinger and Dale L. Dinger appealed from a judgment dismissing their action against Strata Corporation ("Strata") and Traffic Safety Services, Inc. ("TSS"). We hold the trial court erred in determining there was no genuine issue of material fact regarding whether Strata and TSS breached duties owed to Dingers. We therefore reverse and remand.

I

[¶ 2] In 1991, Ramsey County decided to construct a bike path adjacent to Ramsey County Highway No. 1. Midwest Engineering, Inc. ("Midwest"), prepared the plans and specifications. Nodak Contracting, a division of Strata, received the construction contract. TSS, a subcontractor, provided and installed traffic signs. The project was completed in the fall of 1992, and the signs were removed and stored until Ramsey County employees reinstalled them the following spring.

[¶ 3] Deloris Dinger received head injuries in a bicycle accident on September 10, 1993. She was found beside a signpost on the bike path. Deloris had no memory of the accident, and there were no known witnesses. Dingers sued Ramsey County, Midwest, Strata, and TSS, alleging Deloris struck a signpost while riding a bicycle, causing her to lose her balance and fall to the pavement. Dingers alleged the defendants were negligent in the design and construction of the bike path, including the placement of traffic signposts, and alleged the signpost and the design and construction of the bike path constituted a nuisance.

[¶ 4] Strata and TSS moved for summary judgment. The trial court concluded Strata and TSS owed Dingers no duty under the construction contract, Strata and TSS had no duty to foresee the harm suffered by Dingers, and, if any wrongful condition existed, Strata and TSS were not responsible for it. On April 10, 1997, the trial court issued an order granting summary judgment to Strata and TSS. However, no judgment or order directing entry of final judgment was entered.

[¶ 5] The claims against Ramsey County and Midwest proceeded. After four days of trial in October 1998, Dingers reached a settlement agreement with both Ramsey County and Midwest. The trial court subsequently ordered dismissal of the actions against Ramsey County and Midwest.

[¶ 6] In January 1999, Dingers filed a Motion to Reconsider, to Alter or Amend, and for Relief from Order. Dingers argued reversal of the trial court's order granting summary judgment to Strata and TSS was proper because testimony of witnesses at the trial against Ramsey County and Midwest raised genuine factual issues regarding Dingers' claims against Strata and TSS. Dingers asserted the trial testimony of important witnesses differed from the testimony given by those witnesses during discovery. The trial court denied the motion without comment on the merits.

[¶ 7] On March 16, 1999, the trial court entered a final judgment dismissing all of Dingers' claims against all defendants and awarding TSS and Strata costs and disbursements. Dingers appealed.

II

[¶ 8] When Dingers brought the motion to reconsider the order for summary judgment, no final judgment had been entered in favor of any of the defendants. The trial court had granted summary judgment in April 1997, but had not directed entry of final judgment dismissing TSS and Strata. Rule 54(b), N.D.R.Civ.P., recognizes that a trial court may direct entry of a final judgment against only some of the parties to a litigation, but until final judgment is entered all orders are subject to revision. Under N.D.R.Civ.P. 54(b):

... 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. 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.

[¶ 9] Here, the trial court did not direct entry of judgment in favor of Strata and TSS until it issued the final judgment in March 1999, adjudicating the claims against all the defendants in the case. The order granting summary judgment therefore did not terminate the action against Strata and TSS and was not appealable. See Williams Co. v. Hamilton, 427 N.W.2d 822, 822 (N.D.1988) (dismissing an appeal from a summary judgment "[b]ecause the record contain[ed] no order complying with Rule 54(b), N.D.R.Civ.P.").

[¶ 10] Our prior cases make it clear that the trial court was correct in not directing entry of final judgment. The case against Strata and TSS arose from the same occurrence on which the case against the settling defendants was based.

In a multiple party situation `where the complaint is dismissed as to one defendant but not others, the court should not, as a general matter, direct the entry of a final judgment pursuant to Rule 54(b) if the same or closely related issues remain to be litigated against the undismissed defendants.' Under these circumstances, possibilities abound that the remaining defendants, by virtue of their lack of opportunity to participate, will be prejudiced by the decision on the certified appeal, and that the facts ultimately adduced at trial of the remaining defendants could undermine the soundness of the decision on the certified appeal.

Peterson v. Zerr, 443 N.W.2d 293, 298 (N.D.1989) (citations omitted).

[¶ 11] Because the order granting summary judgment was not certified as a final judgment under Rule 54, Dingers' motion for reconsideration of the trial court's order granting summary judgment was proper. As we noted in Union State Bank v. Woell, 357 N.W.2d 234, 239 (N.D.1984), the summary judgment, as an interlocutory order, "remains subject to revision by the court at any time before the entry of judgment adjudicating all claims between all parties." In Woell we also expressed the concern that trial of the undismissed claims could substantially undermine the validity of the decision on the motion for summary judgment. Id.; see also Xerox Corp. v. Genmoora Corp., 888 F.2d 345, 356 (5th Cir.1989) (indicating the trial court's grant of summary judgment to only some of the defendants was interlocutory and thus the plaintiff "properly asked the district court to exercise its power to modify or rescind its interlocutory order"). The evidence adduced at trial of the actions against Midwest and Ramsey County and pointed out in Dingers' motion for relief therefore is part of the record and is appropriate to consider. See Xerox Corp. (indicating the plaintiff properly supported its motion for reconsideration by submitting new evidence compiled from the record in related litigation); Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858, 862 (5th Cir.1970) (explaining the court may at any time before final decree modify or rescind an interlocutory order); Hunteman v. New Orleans Public Service, Inc., 119 F.2d 465, 466 (5th Cir.1941) (dismissing plaintiff's appeal of a judgment of dismissal as to one of two defendants in a case because the district court "may yet set aside the order of dismissal and reinstate the action as to the [dismissed defendant]"). Compare Xerox Corp. (where the trial court had not certified its grant of summary judgment under Rule 54(b) prior to its denial of the plaintiff's motion for reconsideration and thus the trial court should have considered evidence submitted with the motion for reconsideration), with Catasauqua Area School Dist. v. Eagle-Picher Indus., 118 F.R.D. 566, 567 (E.D.Pa.1988) (where judgment had been entered on the trial court's grant of summary judgment and the plaintiff moved for relief from judgment under F.R.Civ.P. 60(b) but failed to satisfy the requirements under the rule). Under the circumstances, Dingers properly moved for reconsideration of the summary judgment motion brought by Strata and TSS, relying on evidence heard at trial and submitted prior to the final judgment.

III

[¶ 12] We have recognized that a motion to reconsider may be treated as a motion to alter or amend the judgment under N.D.R.Civ.P. 59(j), when all issues have been finally adjudicated, even though a final judgment has not been entered. Woodworth v. Chillemi, 1999 ND 43, ¶ 7, 590 N.W.2d 446; Austin v. Towne, 1997 ND 59, ¶ 7, 560 N.W.2d 895.

A decision on a N.D.R.Civ.P. 59 motion is within the sound discretion of the trial court. We will not reverse the denial of a motion under N.D.R.Civ.P. 59 absent a manifest abuse of discretion. `A trial court abuses its discretion if it acts in an arbitrary, capricious, or unreasonable manner, or if it misinterprets or misapplies the law.'

Austin, at ¶ 8 (citations omitted).

[¶ 13] The trial court granted summary judgment concluding Dingers "have failed to show a legal duty owed to [Dingers] by [TSS and Strata] under the construction contract." The order therefore indicates the trial court was applying an erroneous interpretation of the law.

IV

[¶ 14] Summary judgment is a procedural device for prompt and expeditious disposition of a...