MATTER OF COMMODORE HOTEL, ETC., 81-736.

• Decision Date: 23 April 1982
• Docket Number: No. 81-736.,81-736.
• Citation: 318 NW 2d 244
• Parties: In the Matter of the COMMODORE HOTEL FIRE AND EXPLOSION CASE.
• Court: Minnesota Supreme Court

318 N.W.2d 244 (1982)

In the Matter of the COMMODORE HOTEL FIRE AND EXPLOSION CASE.

No. 81-736.

Supreme Court of Minnesota.

April 23, 1982.

Edward P. Starr, City Atty., and Frank E. Villaume, III, Deputy City Atty., St. Paul, for City of St. Paul.

Meagher, Geer, Markham, Anderson, Adamson, Flaskamp & Brennan and Clyde F. Anderson and Laura S. Underkuffler, Minneapolis, for NSP and Grudem Bros. Co.

Jardine, Logan & O'Brien, John R. O'Brien and Pierre N. Regnier, St. Paul, Austin D. Ditzler, Minneapolis, for Summit Court, Inc.

Scholle & Scholle, Mark Scholle and Thomas L. Johnson, Minneapolis, for Grudem Bros. Co.

Robins, Zelle, Larson & Kaplan and Mark J. Feinberg, Minneapolis, for Commercial Union Ins. Co.

Considered and decided by the court en banc without oral argument.

WAHL, Justice.

Nineteen separate lawsuits seeking money damages for personal injury and property damage arising from the fire and explosion at the Commodore Hotel on February 15, 1978, were consolidated for trial as the Commodore Hotel Fire and Explosion Cases. By order of the trial court, the trial was bifurcated pursuant to Minn.R.Civ.P. 42.02, with the issues of liability and damages tried separately.

Judgment as to liability was entered on March 25, 1981, and judgments as to damages were entered June 25, 1981, and July 9, 1981. The City of St. Paul (City) filed a timely notice of appeal from the judgments of June 25, 1981, and July 9, 1981, and seeks in that appeal review of issues pertaining to liability. Respondents argue that this court has no jurisdiction to review issues of liability because the appeal was taken more than 90 days after entry of the March 25, 1981, judgment. The City argues that, where the issues of liability and damages are bifurcated for trial, an appeal taken within 90 days of judgment on the damage issues, even though more than 90 days from the judgment on the liability issues, gives this court jurisdiction to review all issues. We agree with the City.

Minnesota Rules of Civil Appellate Procedure provide that an appeal may be taken within 90 days after entry of judgment. Minn.R.Civ.App.P. 103.03(a), 104.01. "Rule 104.01 refers only to a final judgment, not to any order or so-called judgment which is not in fact final." Financial Relations Board, Inc. v. Pawnee Corp., 308 Minn. 109, 112, 240 N.W.2d 565, 566 (1976) (emphasis in original).

Minnesota Rule of Civil Procedure 54.02 provides for the entry of a final judgment as to less than all of the claims in multiparty litigation:

When multiple claims for relief or multiple parties are involved in an action, 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.¹

Whether a judgment determining liability of all parties is a final judgment from which an appeal must be taken, where the issue of damages remains to be tried, is a question of first impression for this court. Because the language of Minn.R.Civ.P. 42.02 is identical to language in Rule 42(b) of the Federal Rules of Civil Procedure, we find federal cases on this question instructive.

When a separate trial in federal court determines the issue of liability, with the issue of damages to be determined later, no appeal may be taken as of right from the liability determination, because there has not been full adjudication of one entire claim. Haverhill Gazette Co. v. Union Leader Corp., 333 F.2d 798, 803 (1st Cir. 1964), cert. denied, 379 U.S. 931, 85 S.Ct. 329, 13 L.Ed.2d 343 (1964); 9 J. Moore, Moore's Federal Practice § 110.081 (2d ed. 1980); See Garzaro v. University of Puerto Rico, 575 F.2d 335 (1st Cir. 1978); McIntyre v. First National Bank of Cincinnati, 585 F.2d 190 (6th Cir. 1978); Response of Carolina, Inc. v. Leasco Response, Inc., 537 F.2d 1307 (5th Cir. 1976). Partial judgment of one or more, but less than all, of the claims may be appealed only upon an express determination that there is no just reason for delay and upon an express direction of the entry for judgment pursuant to Rule 54.02, but Rule 54.02 is inapplicable in this case. Adjudication of liability, without determination of damages, is not an adjudication of even one entire claim. "The determination of liability is but one step to securing a money judgment. There cannot be a final judgment until both liability and the amount of damages are judicially determined." Aetna Casualty & Surety Co. v. Jeppeson & Co., 440 F.Supp. 394, 403 (D.Nev.1977) (footnote omitted).

Both the federal rule and Minnesota rule on summary judgment provide that any partial summary judgment on the issue of liability alone is interlocutory and, therefore, not appealable: "A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of...