Merchants, Inc. v. Intermountain Industries, Inc.

• Decision Date: 18 November 1976
• Docket Number: No. 12084,12084
• Citation: 556 P.2d 366,97 Idaho 890
• Parties: MERCHANTS, INC., et al., Plaintiffs and Respondents, v. INTERMOUNTAIN INDUSTRIES, INC., an Idaho Corporation, et al., Defendants and Appellants. INTERMOUNTAIN INDUSTRIES, INC., Counter-Plaintiff and Cross-Party Plaintiff and Appellant, v. POCATELLO INDUSTRIAL PARK COMPANY, a partnership, and Bannock County, Idaho, a political subdivision, Cross-Defendants and Respondents.
• Court: Idaho Supreme Court

Page 366

556 P.2d 366

97 Idaho 890

MERCHANTS, INC., et al., Plaintiffs and Respondents, v. INTERMOUNTAIN INDUSTRIES, INC., an Idaho Corporation, et al., Defendants and Appellants.

INTERMOUNTAIN INDUSTRIES, INC., Counter-Plaintiff and Cross-Party Plaintiff and Appellant, v. POCATELLO INDUSTRIAL PARK COMPANY, a partnership, and Bannock County, Idaho, a political subdivision, Cross-Defendants and Respondents.

No. 12084.

Supreme Court of Idaho.

Nov. 18, 1976.

Max F. Parrish, Pocatello, for cross-party plaintiff and appellant.

Gerald W. Olson, Pocatello, for cross-defendant and respondent.

No appearance by any other attorneys or parties.

PER CURIAM.

This action began with a complaint filed by Merchants, Inc., (Merchants) in October of 1971. Approximately five years and 185 pages of clerk's transcript later, the original action remains to be tried, and is apparently held in abeyance pending the disposition of the appeal we now consider.

In June of 1969, Merchants conditionally sold certain personal property to Drug Mart, Inc., (Drug Mart) for approximately $50,000.00, the purchasers of record being Drug Mart and its owners, Charles J. and Ralene M. Nielsen, individually. Requisite UCC filings were made at both the Bannock County Recorder's office and the Office of the Secretary of State in Boise. The account subsequently became delinquent and, by agreement of all parties to the transaction, Merchants picked up the personal property and stored it with Pocatello Industrial Park Company (PIPCo). Thereafter, by virtue of an execution issued in another action on behalf of the judgment creditors of Drug Mart, the personal property was sold at a sheriff's sale. At this point, the appellant, Intermountain Industries, Inc., (Intermountain) becomes involved by reason of buying the personalty exposed at sale for its highest bid, which was $467.50.

Thereafter, all of the parties to the 1969 purchase money security interest transaction, to-wit: Merchants, Drug Mart, and the two Nielsens, joined as co-plaintiffs in bringing the original action, naming as defendants the ten judgment creditors who had had the personalty seized under execution and put up for sale, and Intermountain who, as execution sale purchaser, remains in possession of the goods. In March of 1972, the trial court granted partial summary judgment, determining as a single issue that Merchants had complied with UCC requirements with respect to the filing of financing statements.

Following this determination of the validity of the filings, Intermountain, with leave of court, in July of 1972, filed a counterclaim and cross-complaint, alleging a separate claim against Merchants, another claim against Drug Mart and the Nielsens individually, another claim against Bannock County (whose faulty recording system allegedly caused the execution sale), and yet another claim against PIPCo, against whom Intermountain charges liability for allowing the sale to take place while knowing of Merchant's security interest. Intermountain sought: $10,000.00 damages or such amount as to be further determined on each of the four claims; set-off against Merchants for whatever Merchants might get against it; and indemnity over from Bannock County and from PIPCo for any amount it might become adjudged as owing to Merchants.

In November, 1972, PIPCo challenged the sufficiency of Intermountain's claim against it by a motion to dismiss, and it is from an order entered in July, 1975, granting the motion to dismiss that this appeal has been brought. Meanwhile, from the rather voluminous record, it appears that Bannock County's similar motion for summary judgment has been denied, that Merchants withdrew a summary judgment motion which it had filed, and other than the pendency of this appeal, the case is ready for trial on the issues.

At the outset, we question whether the order granting the motion is appealable, having in mind I.R.C.P. 54(b), I.C. § 13-201, and our recent decision in Southland Produce Company v. Belson, 96 Idaho 776, 536 P.2d 1126 (1975). By our count, the case under review involves five separate claims and sixteen parties. Clearly, then, it is both a multi-claim and multi-party action. What goes to make a 'final judgment' in such an action is governed, as to multi-claims, by I.R.C.P. 54(b):

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, the court may direct the entry of a final judgment upon one or more but less than all of the claims 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 less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating...