Luithle v. Taverna

• Decision Date: 30 October 1973
• Docket Number: No. 8835,8835
• Citation: 214 N.W.2d 117
• Parties: Melinda LUITHLE and Orin W. Reiser, Co-Administrators of the Estate of Jack Luithle, Deceased, Plaintiffs/Appellants, v. Jake TAVERNA et al., Defendants/Appellees. Civ.
• Court: North Dakota Supreme Court

Page 117

214 N.W.2d 117

Melinda LUITHLE and Orin W. Reiser, Co-Administrators of the Estate of Jack Luithle, Deceased, Plaintiffs/Appellants, v. Jake TAVERNA et al., Defendants/Appellees.

Civ. No. 8835.

Supreme Court of North Dakota.

Oct. 30, 1973.

Rehearing Denied Jan. 31, 1974.

Syllabus by the Court

1. Rule 54(b) has no application when all of the claims have been adjudicated as to all of the parties. Judgments disposing of all claims of the plaintiff are final and appealable, although there are multiple claims or multiple parties, without an express direction by the trial court that there is no just reason for delay and an express determination for the entry of judgments.

2. A 54(b) certificate or order is not necessary as to a cross-claim when the principal claim is dismissed and the cross-claim is incidental to and dependent upon the principal claim.

3. A party moving for summary judgment is entitled to judgment if it appears that there is no genuine issue of material fact to be tried by the court.

4. One who moves for a summary judgment has the burden of demonstrating clearly that there is no genuine issue of material fact.

5. Questions of negligence, proximate cause, contributory negligence and assumption of risk are ordinarily questions of fact for the jury.

6. When there are genuine issues of material fact in a negligence case, the granting of summary judgments dismissing the plaintiff's complaint was improper.

John C. Haugland of Duffy & Haugland, Devils Lake, and Letnes & Marshall, Grand Forks, for plaintiffs and appellants.

James H. Williams of Mattson, Williams & Hovey, New Rockford, for defendants and appellees Jake Taverna and Jarold Frazer.

Floyd B. Sperry of Sperry & Shultz, Bismarck, for defendants and appellees William H. Block and Howard Golly, d.b.a. Minot Livestock Auction.

Richard H. McGee of McGee, Hankla, Backes & Wheeler, Minot, for defendant and appellee Swift & Co.

KNUDSON, Judge.

Jack Luithle brought this action for the recovery of damages for losses sustained to his herd of cattle by the introduction of a disease, leptospirosis, which he claims came from 31 head of cattle infected with the disease brought to his feedlot from the yards of the Minot Livestock Auction and purchased by Jack Taverna and Jarold Frazer for Swift & Company to fill out a contract between Luithle and Swift & Company for the feeding of 500 cattle. Subsequent to the bringing of the action, the plaintiff, Luithle, died, and Melinda Luithle and Orin W. Reiser, co-administrators of the estate, were substituted as party plaintiffs.

Swift & Company cross-claimed against Jack Taverna and Jarold Frazer and Minot Livestock Auction to recover from the cross-defendants any amount that may be adjudged due from Swift & Company to the plaintiff.

The several defendants filed separate motions for summary judgment under Rule 56, North Dakota Rules of Civil Procedure, upon the pleadings, depositions, and answers to interrogatories, together with the affidavits and exhibits filed in support of said motions, on the ground that there is no genuine issue as to any material fact and that the defendants are entitled to a judgment as a matter of law.

The trial court ordered a summary judgment in favor of each defendant dismissing the complaint of the plaintiff, Luithle. The plaintiff has appealed from each of the summary judgments.

The defendants, Swift & Company and Jack Taverna and Jarold Frazer, in oral argument before this court, orally moved for a dismissal of the appeals by the plaintiff on the ground that this court lacks jurisdiction to hear the appeals because of the absence of the certificate or order of the trial court required under Rule 54(b), N.D.R.Civ.P., in an action involving multiple claims or multiple parties. These defendants contend that the summary judgments in favor of these defendants, being interlocutory without the Rule 54(b) certificate or order, are unappealable.

The trial court did make an express determination that there was no just reason for delay and did not make an express direction for the entry of judgment, required by Rule 54(b) when multiple claims or multiple parties are involved, with respect to the summary judgments in favor of Swift & Company and Jake Taverna and Jarold Frazer. However, such determination and direction was made by the trial court in the order for summary judgment in favor of Minot Livestock Auction.

In this case the trial court granted a summary judgment in favor of each of the defendants dismissing the plaintiff's claim against each of the defendants. The trial court made no adjudication of the cross-claim of Swift & Company against Taverna, Frazer and the Minot Livestock Auction, who were codefendants with Swift & Company in the main action. In granting summary judgment in favor of Swift & Company and all of the other defendants dismissing the plaintiff's complaint, the trial court disposed of the claim of the plaintiff, and there was no occasion, therefore, for any further action to render the judgments final under Rule 54(b). General Time Corp. v. Padua Alarm Systems, 199 F.2d 351 (2d Cir. 1952), cited in Howze v. Arrow Transportation Co., 280 F.2d 403 (5th Cir. 1960). Rule 54(b) has no application when all of the claims have been adjudicated as to all of the parties. 10 Wright & Miller, Federal Practice and Procedure: Civil § 2656, pp. 44, 45.

Rule 54(b) of the North Dakota Rules of Civil Procedure provides:

Judgment upon multiple claims or involving multiple parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when 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 such 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 shall 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.

We are of the opinion that no further action was necessary by the trial court as to the cross-claim of Swift & Company against the other defendants. Any contingent liability that Taverna, Frazer and Minot Livestock Auction had to Swift & Company under the cross-claim was conditioned and dependent on the success of the plaintiff's claim against Swift & Company. Swift & Company's cross-claim for indemnity against Taverna, Frazer and Minot Livestock Auction is so completely incidental to and dependent upon the principal claim that there can be no recovery upon the cross-claim unless the plaintiff prevails on the principal claim against Swift & Company.

It has been held that a third-party claim 'is so completely incidental to and dependent upon the principal claim that there can be no recovery upon the third-party claim unless the plaintiff shall prevail on the principal claim.' Panichella v. Pennsylvania Railroad Company, 252 F.2d 452, 455 (3d Cir. 1958). Similarly, Swift & Company's right to recover under the cross-claim would not mature until there had been a judgment entered against Swift & Company in favor of Luithle on the principal claim.

By the dismissal of the plaintiff's claim against Swift & Company by the summary judgment in favor of Swift & Company the cross-claim has become moot. This being so, a 54(b) certificate or order would be fruitless and unnecessary. The trial judge having disposed of the claim of the plaintiff against all of the several defendants by a summary judgment issued to each of the defendants dismissing the complaints of the plaintiff, there is nothing further left for adjudication, and the summary judgments are final and therefore are appealable.

We therefore deny the motions to dismiss the appeals from the summary judgments to Swift & Company and to Taverna and Frazer. We hold the judgments appealed from constitute final judgments from which an appeal lies.

We will now consider the plaintiff's appeals from the summary judgments to determine whether this was a proper case for the entry of the summary judgments.

The plaintiff assigned a specification of error that the trial court erred in granting summary judgments in favor of the several defendants dismissing the plaintiff's complaint for the reason that there are present genuine issues of material fact properly triable by a jury or by the trial court. The granting of summary judgments depends upon whether or not any genuine issue of material fact exists. Rule 56(c), N.D.R.Civ.P.

In this case the court granted summary judgments in favor of the several defendants dismissing the complaint of the plaintiff, saying, in effect, that:

1. General allegations of negligence lack substance and support.

2. Non-negligence, sufficient and uncontroverted, was established by the defendant.

3. The record negates the probability that evidence calling for a different result might be developed in the traditional manner by trial to the court or jury.

Under N.D.R.Civ.P. Rule 56(c), the moving party is entitled to summary judgment if it appears that there is no genuine issue as to any material fact and that movant is entitled to a judgment as a matter of law. Wolff v. Light, 156 N.W.2d 175 (N.D.1968). See citations listed therein. Summary judgment should be granted 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.' N.D.R.Civ.P. Rule 56(c).

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