Gissel v. Kenmare Tp., s. 910355

• Decision Date: 07 February 1992
• Docket Number: 910356 and 910365,Nos. 910355,s. 910355
• Parties: Curtis and Joan GISSEL, Plaintiffs, Appellants and Cross-Appellees, v. KENMARE TOWNSHIP, Defendant and Appellee. Curtis and Joan GISSEL, Plaintiffs, Appellants and Cross-Appellees, v. KENMARE TOWNSHIP, Defendant and Appellee Minot Paving Company, Inc., Defendant, and Kenmare Municipal Airport Authority, Defendant, Appellee and Cross-Appellant. Civ.
• Court: North Dakota Supreme Court

Page 876

479 N.W.2d 876

Curtis and Joan GISSEL, Plaintiffs, Appellants and Cross-Appellees, v. KENMARE TOWNSHIP, Defendant and Appellee.

Curtis and Joan GISSEL, Plaintiffs, Appellants and Cross-Appellees, v. KENMARE TOWNSHIP, Defendant and Appellee

Minot Paving Company, Inc., Defendant,

and

Kenmare Municipal Airport Authority, Defendant, Appellee and

Cross-Appellant.

Civ. Nos. 910355, 910356 and 910365.

Supreme Court of North Dakota.

Feb. 7, 1992.

Robert S. Rau of Bosard, McCutcheon & Rau, Ltd., Minot, for plaintiffs, appellants and cross-appellees.

Robert A. Wheeler of McGee, Hankla, Backes & Wheeler, Ltd., Minot, for defendant, appellee and cross-appellant.

VANDE WALLE, Justice.

Curtis and Joan Gissel appealed from a partial summary judgment in their consolidated lawsuits against Kenmare Township, the Kenmare Municipal Airport Authority, and Minot Paving Company, Inc., the Authority's contractor. The Authority appealed from an order assessing interim attorney's fees against it. Because we conclude that the trial court improvidently granted the Rule 54(b), N.D.R.Civ.P., order certifying this judgment as final, we dismiss the appeal.

As part of its plans to extend its runway, the Kenmare Municipal Airport Authority acquired through eminent domain proceedings Kenmare Township's right-of-way to a section line road which passed between property owned by the Authority and the Gissels. See NDCC Sec. 32-15-04(3). After entry of the judgment against Kenmare Township, the Gissels sought and obtained an injunction against the closing of the road by the Authority or the Township. The Township eventually closed the road under Chapter 24-07, NDCC, and Gissels appealed. The district court subsequently dissolved the injunction, declared proper the Township's closing of the road and ordered a jury trial on the issue of damages. See NDCC Secs. 24-07-16; 24-07-27. The content and development of these lawsuits is further detailed in Gissel v. Kenmare Township, 463 N.W.2d 668 (N.D.1990) [Gissel I ]. In Gissel I we dismissed the appeal from various district court orders because there was no Rule 54(b), N.D.R.Civ.P., order and we concluded that the orders were interlocutory and not appealable.

After we dismissed the appeal, the parties filed cross-motions for the reconsideration of various orders entered by the district court. The Gissels asked the court to reconsider its May 29, 1990, order withdrawing an injunction against Kenmare Township's closing of the road, dismissing the appeal of the Gissels from the Township's order discontinuing the road, and concluding that the issue of damages remained to be tried to a jury. Kenmare Municipal Airport Authority asked the court to reconsider its order awarding attorney's fees to Gissels. The district court heard arguments from the parties and denied the motions to reconsider. The court also determined that there was no just reason for delay and directed that its order denying the motions was to be entered as a final judgment pursuant to Rule 54(b). Neither party requested this certification.

A certification under Rule 54(b) does not end our inquiry on appealability of orders. Although neither party directly raised the issue on appeal, we are not bound by the district court's determination and will make our own review to determine whether the district court abused its discretion in making the certification. Peterson v. Zerr, 443 N.W.2d 293 (N.D.1989).

In reviewing a court's discretionary grant of a Rule 54(b) certification, we review a number of recognized factors. ¹ The purpose of the review is to determine whether the case presents an "infrequent harsh case" warranting the extraordinary remedy of an otherwise interlocutory appeal. See Club Broadway, Inc. v. Broadway Park, 443 N.W.2d 919 (N.D.1989); Ceartin v. Ochs, 479 N.W.2d 863 (N.D.1992). When a trial court's interlocutory order is reversed after a final judgment, a second trial may be necessary; saving the trial court and parties the time and expense of a second trial is not alone sufficient to justify a determination that a Rule 54(b) certification should be entered. Herzog v. Yuill, 399 N.W.2d 287, 288 n. 1 (N.D.1987). Nor does the rule provide a means to circumvent our lack of authority to render advisory opinions. Janavaras v. National Farmers Union Prop. & Cas. Co., 449 N.W.2d 578 (N.D.1989). Rather, Rule 54(b) should be construed to preserve our long-standing policy against piecemeal appeals. Union State Bank v. Woell, 357 N.W.2d 234 (N.D.1984).

"We recognize[ ] that the purpose of the Rule is to balance the competing policies of permitting accelerated review of certain judgments with the desire to avoid the waste in appellate resources which can accompany piecemeal review, and that therefore...