Hansen v. Scott

Decision Date10 June 2002
Docket NumberNo. 20010195.,20010195.
Citation645 N.W.2d 223,2002 ND 101
PartiesMichelle HANSEN, Stacey Hansen, and Michelle Hansen, as Personal Representative of the Estates of Gordon and Barbara Erickstad, Plaintiffs and Appellants, v. Wayne SCOTT, Ray Parra, Rey Selvera, William H. Brooks, Cathy Doyle, Veronica Ballard, Carl Jeffries, Ethel White, Larry Hermance, Cynthia Lyons, Defendants and Appellees, Robert R. Lawrence, John Doe # 1, John Doe # 2, John Doe # 3, John Doe # 4, and John Doe # 5, individually, Defendants.
CourtNorth Dakota Supreme Court

Timothy Q. Purdon (argued) and Thomas A. Dickson (on brief), Dickson & Purdon, Bismarck, N.D., for plaintiffs and appellants.

Charles K. Eldred (argued), Assistant Attorney General, Austin, TX and Daniel L. Hovland (appeared), Smith Bakke Hovland & Oppegard, Bismarck, N.D., for defendants and appellees.

Ken R. Sorenson, Assistant Attorney General, Bismarck, N.D., for amicus curiae.

KAPSNER, Justice.

[¶ 1] Michelle Hansen, individually and as personal representative of the estates of Gordon and Barbara Erickstad, and Stacey Hansen, the Erickstads' daughters, ("daughters") appeal from a partial judgment dismissing for lack of personal jurisdiction their wrongful death, survivorship, and 42 U.S.C. § 1983 claims against employees of the Texas Department of Criminal Justice ("Texas defendants"). We hold the daughters' claims against the Texas defendants state a prima facie tort under N.D.R.Civ.P. 4(b)(2)(C), and the exercise of personal jurisdiction over the Texas defendants would not offend traditional notions of substantial justice, fair play, or due process of law. We reverse and remand for further proceedings.

I

[¶ 2] The daughters brought wrongful death and survivorship claims against Robert Lawrence, and wrongful death, survivorship, and 42 U.S.C. § 1983 claims against the Texas defendants in an action stemming from the September 16, 1998 murders of Gordon and Barbara Erickstad by Lawrence and Brian Erickstad. See State v. Erickstad, 2000 ND 202, 620 N.W.2d 136. At the time of the murders, Lawrence was a parolee from Texas being supervised in North Dakota under N.D.C.C. ch. 12-56, the Interstate Compact for Out-of-State Parolee Supervision.

[¶ 3] In May 1997, North Dakota accepted Lawrence, a Texas resident, for parole supervision in North Dakota. In June 1997, Lawrence was released from custody in Texas, and he began living with his sister in Mandan, where he was supervised by North Dakota parole officials under the Interstate Compact. In October 1997, Lawrence was convicted of making a false report to law enforcement officials in Morton County, and in December 1997, North Dakota parole officials notified Texas parole officials about Lawrence's North Dakota conviction and that a second similar charge and driving under suspension and exhibition driving charges were pending against him. In December 1997, North Dakota parole officials also notified Texas parole officials that Lawrence had moved and his new address was not known. In February 1998, Texas parole officials issued a pre-revocation warrant authorizing North Dakota officials to arrest Lawrence. In February 1998, Lawrence was convicted of making a false report to law enforcement officers in Burleigh County, and he was sentenced to one year in prison with three months suspended. In March 1998, Texas dropped its "hold" and its revocation proceedings against Lawrence because of his North Dakota conviction and sentence. On August 24, 1998, Lawrence was released from prison, but he failed to contact his North Dakota parole officer within 24 hours. On September 11, 1998, North Dakota parole officials informed Texas parole officials that Lawrence had absconded from supervision, and North Dakota was closing its case and recommending Texas issue a warrant for Lawrence's arrest and return to Texas for revocation proceedings. Gordon and Barbara Erickstad were murdered on September 16, 1998.

[¶ 4] The daughters brought wrongful death and survivorship claims against Lawrence. The daughters also brought wrongful death, survivorship, and 42 U.S.C. § 1983 claims against the Texas defendants, alleging Lawrence had an extensive criminal record in Texas dating back to 1989 and

when providing transfer investigation information to North Dakota Parole and Probation officials, [the Texas defendants] unreasonably and recklessly failed to fully disclose and provide the background and prior criminal history of Defendant Robert Lawrence in violation of the applicable standard of care[,]
. . . .
while administering the Interstate Compact agreement between Texas and North Dakota in regards to Defendant Robert Lawrence, [the Texas defendants] unreasonably and recklessly failed to comply with the standard of care in supervising Defendant Robert Lawrence as set forth by the applicable policies and procedures governing supervision of inmates on parole, including but not limited to, the policies and procedures required and developed by the Parole and Probation Compact Administrators' Association[,]
. . . .
[and] in developing and implementing the policies and procedures adopted and utilized by the Texas Department of Criminal Justice for determining when a parolee should be returned from a receiving state due to violations of his or her parole, [the Texas defendants] acted in an unreasonable and reckless manner in violation of the applicable standard of care.

[¶ 5] The Texas defendants made a special appearance to contest North Dakota's exercise of personaljurisdiction over them. The trial court granted the Texas defendants' motion to dismiss for lack of personal jurisdiction under N.D.R.Civ.P. 4(b)(2)(C), concluding that, although the Texas defendants had sufficient minimum contacts with North Dakota to satisfy due process, the daughters' claims against the Texas defendants did not allege a tort because the Texas defendants did not take charge of Lawrence under Restatement (Second) of Torts § 319 (1965) and therefore did not have a tort duty to the daughters for Lawrence's criminal acts. The daughters' wrongful death and survivorship claims against Lawrence have not been resolved and are still pending. The trial court granted the daughters' request for certification of the dismissal of the Texas defendants as a final judgment under N.D.R.Civ.P. 54(b), and the daughters appealed.

II

[¶ 6] The Texas defendants argue the trial court improvidently entered a N.D.R.Civ.P. 54(b) certification. The daughters assert the Texas defendants waived their objection to the Rule 54(b) certification by not opposing the daughters' request for certification in the trial court.

[¶ 7] We are not bound by a trial court's certification under N.D.R.Civ.P. 54(b), and we may sua sponte review the certification. Mitchell v. Sanborn, 536 N.W.2d 678, 681 (N.D.1995). Because we may review a Rule 54(b) certification on our own motion, we reject the daughters' claim that the Texas defendants waived their objection to the certification.

[¶ 8] Rule 54(b), N.D.R.Civ.P., authorizes a trial court to direct entry of a final judgment adjudicating fewer than all of the claims, or the rights and liabilities of fewer than all of the parties upon "express determination that there is no just reason for delay" and "express direction for the entry of judgment." We review a trial court's Rule 54(b) certification under the abuse-of-discretion standard. Nodak Mut. Farm Bur. v. Kosmatka, 2000 ND 210, ¶ 4, 619 N.W.2d 852; Symington v. Walle Mut. Ins. Co., 1997 ND 93, ¶ 5, 563 N.W.2d 400; Sickler v. Kirkwood, 1997 ND 40, ¶ 5, 560 N.W.2d 532, 533; Wyatt v. Adams, 551 N.W.2d 775, 777 (N.D.1996); Ingalls v. Glass Unlimited, Inc., 529 N.W.2d 872, 873 (N.D.1995); Gessner v. City of Minot, 529 N.W.2d 868, 870 (N.D.1995); Bulman v. Hulstrand Const. Co., Inc., 503 N.W.2d 240, 241 (N.D.1993).

[¶ 9] The trial court's discretion must be measured against the "interest of sound judicial administration." Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 10, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980) (quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437, 76 S.Ct. 895, 100 L.Ed. 1297 (1956)). In Union State Bank v. Woell, 357 N.W.2d 234, 236 (N.D.1984), we noted an increase in Rule 54(b) certifications and said they should not be routinely granted. We cited Allis-Chalmers Corp. v. Philadelphia Elec. Co., 521 F.2d 360, 364 (3d Cir.1975), for a non-inclusive list of relevant factors for a trial court to consider in deciding a 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.

Woell, at 238.

[¶ 10] A common thread in our cases reviewing Rule 54(b) certifications is our strong policy against piecemeal appeals, and our aversion to rendering advisory opinions in cases where future developments in the trial court may moot the issues raised for appellate review. See Kosmatka, 2000 ND 210, ¶¶ 10-13, 619 N.W.2d 852; Symington, 1997 ND 93, ¶ 8, 563 N.W.2d 400; Wyatt, 551 N.W.2d at 777; Ingalls, 529 N.W.2d at 873; Gessner, 529 N.W.2d at 870; Bulman, 503 N.W.2d at 241-42.

[¶ 11] We have held a trial court does not abuse its discretion in granting a Rule 54(b) certification if the issues raised in the appeal will not be mooted by future developments in the trial court. Symington, 1997 ND 93, ¶ 8,563 N.W.2d 400. In Symington, at ¶ 3, an insured sued his agent and his insurer regarding coverage under a farm property policy. The insured alleged the insurer's...

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