Mitzel v. Schatz

• Decision Date: 10 December 1968
• Docket Number: No. 8510,8510
• Citation: 167 N.W.2d 519
• Parties: Simon MITZEL, Plaintiff and Respondent, v. Kasper SCHATZ, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 519

167 N.W.2d 519

Simon MITZEL, Plaintiff and Respondent, v. Kasper SCHATZ, Defendant and Appellant.

No. 8510.

Supreme Court of North Dakota.

Dec. 10, 1968.

Syllabus by the Court

1. Only those judgments and decrees which constitute a final determination of the rights of the parties to the action and those orders enumerated in N.D.C.C. § 28--27--02 are appealable.

2. In N.D.R.Civ.P. 54(b) the term Claims is used in the general sense so as to include issues.

3. A trial court's decision in making the determination and direction required by N.D.R.Civ.P. 54(b) will not be set aside unless an abuse of discretion is shown.

4. In the instant case the trial court's order rescinding the release in respect to the settlement of the personal injury claim involves the merits of an action, so that the judgment based thereon is appealable. Accordingly, we find no abuse of the trial court's discretion in making the determination that there is no just reason for delay and the direction for the entry of judgment.

5. Judgments which do not adjudicate all issues are unappealable unless the determination and direction required by N.D.R.Civ.P. 54(b) have been made before the taking of the appeal.

6. In the instant case the appeal is dismissed as being premature, having been taken before the determination and direction required by N.D.R.Civ.P. 54(b) were made.

Nilles, Oehlert, Hansen, Selbo & Magill, Fargo, for defendant and appellant.

Vogel, Bair & Graff, Mandan, for respondent and movant.

ERICKSTAD, Judge.

By summons and complaint dated February 22, 1967, Simon Mitzel initiated an action against Kasper Schatz in which he sought to recover for personal injuries allegedly suffered in an intersectional accident which occurred on November 15, 1965, on a county road 1 1/2 miles east of Zeeland in McIntosh County.

The complaint asserted that Mr. Mitzel's injuries were the result of the negligent operation of a motor vehicle by Mr. Schatz.

Mr. Schatz responded by answer dated March 17, 1967, and amended answer dated November 15, 1967. He admitted that a two-car accident occurred on the date and at the place alleged in the complaint but specifically denied that he was in any way negligent in the operation of his automobile. He further alleged that the accident was caused wholly by the negligence of Simon Mitzel and his son Richard. For a separate defense he alleged that on November 18, 1965, for valuable consideration Simon Mitzel released him and others from 'any and all known and unknown actions, causes of action, claims, demands, damages, costs, loss of services, expenses, compensation, rights of contribution and all consequent damages on account or in any way growing out of any and all known and unknown personal injuries and property damage and death resulting or to result from an accident that occurred on or about the 15th day of November, 1965, near Zeeland, North Dakota'; and that by virtue of said release, Simon Mitzel no longer had a cause of action against him.

Mr. Mitzel anticipated this defense by including in his complaint an allegation that the release given was in settlement only of the property damage to his automobile. He further asserted: 'that if the Defendant alleges, or if it is hereafter established, that any part of said settlement was for personal injuries received in said accident, the Plaintiff hereby rescinds said settlement upon the ground that said release was given by mistake in that the Plaintiff was not aware that he had suffered any serious personal injury in said accident and was specifically not aware that he had suffered brain damage as a result of said accident, and further that said release was obtained by fraud, and the Plaintiff hereby offers to restore any and all things of value received from defendant as fully and completely as if said release had never been given.'

Following a hearing on a motion to sever the issue of whether the release given precluded Simon Mitzel from recovering from Mr. Schatz for his personal injuries, the court granted said motion and set that issue down for separate trial to the court without a jury. Following that trial the court concluded that the release which was executed by Mr. Mitzel on November 18, 1965, was executed under a mistake of fact in respect to the personal injuries that Mr. Mitzel had sustained as a result of the automobile accident. It held that Mr. Mitzel was entitled to have judgment rescinding the release in respect to the settlement of the personal injury claim and that the release was not a bar to the instant action for damages for personal injuries. Pursuant to the findings of fact, conclusions of law, and order for judgment dated March 5, 1968, judgment dated March 13, 1968, was entered.

By notice dated April 17, 1968, Mr. Schatz appealed. Following the service of this notice upon him, Mr. Mitzel made a motion in this court for a dismissal of the appeal on the following grounds: (1) The judgment of the district court is interlocutory in nature and does not adjudicate all of the rights and claims of the parties in the pending action; and (2) The judgment does not comply with the provisions of N.D.R.Civ.P. 54(b).

Following service of this motion upon him, Mr. Schatz moved the court ex parte, citing N.D.R.Civ.P. 60, for an order nunc pro tunc correcting the conclusions of law, order for judgment, and judgment dated March 13, 1968, to provide, pursuant to N.D.R.Civ.P 54(b), that there was no just reason for delay and to expressly direct the entry of judgment. The court granted this motion, and in its order of September 28, 1968, expressly determined that there was no just reason for delay and directed the entry of judgment to be effective as of the date of the original judgment. A document entitled 'Judgment on Separate Trial' identical to the original judgment was thereafter executed on September 30, 1968, by the Clerk of the District Court of McIntosh County.

We note from the affidavit filed in support of the motion to sever that the motion was based primarily on N.D.R.Civ.P. 21 and 42(b). We quote the pertinent part of the affidavit:

That this motion is based among others on Rules 21 and 42B of the North Dakota Rules of Civil Procedure in the furtherance of conveninence and especially to avoid prejudice that may result from the trial of the issues raised by Paragraph II of the defendant's answer because it will involve reference to the Nodak Mutual Insurance Company, the liability insurer of the Kasper Schatz vehicle at the time the accident of November 15, 1965 occurred and that the adjuster for the Nodak Mutual Insurance Co. will of necessity have to testify on the trial of the release issue and the draft issued by the insurer will be offered in evidence and that to allow the trial of the issue involving the release along with the trial of issues on liability would be highly prejudicial to the defendant.

Rules 21 and 42(b) read:

Rule 21. Misjoinder and Nonjoinder of Parties

Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately.

Rule 42. Consolidation; Separate Trials

(b) Separate Trials. The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues, and may direct a final judgment in accordance with the provisions of Rule 54(b).

North Dakota Rules of Civil Procedure.

Barron & Holtzoff contains an interesting commentary on rules 21 and 42(b):

Rule 42(b) allows the court, in furtherance of convenience or to avoid prejudice, to order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue, or of any number of such chaims or issues. This procedure should be distinguished from severance under Rule 21. Separate trials will usually result in one judgment, but severed claims become entirely independent actions to be tried, and judgment entered thereon, independently. Unfortunately this distinction, clear enough in theory, is often obscured in practice since at times the courts talk of 'separate trial' and 'severance' interchangeably.

This rule is intended to further convenience and avoid delay, and to serve the ends of justice. Other rules liberally provide for joinder of claims, parties and actions, and Rule 42(b) is intended to counterbalance them by permitting a separate trial of issues which cannot well be tried together, or which can be conveniently and quickly determined before trial of the other issues * * *. (footnotes omitted)

2B W. Barron & A. Holtzoff, Federal Practice and Procedure § 943, at 185--86 (rules ed. 1961).

In granting the motion in the instant case the trial court said: '(A)ll of the issues relative to the release raised by the pleadings are hereby severed and set down for separate trial to the court without a jury * * *.'

In his brief resisting the motion Mr. Mitzel argued as one of the reasons for not granting the motion that the granting of such a motion would result in separate appeals to the Supreme Court. We quote a part of the brief filed with the trial court:

If a separate trial were granted on the issue of the release, an appeal to the Supreme Court of North Dakota would lie before the second part of the case could be tried. Allowing the usual time for all procedural steps, it would probably be two years before the issue of liability and damages could come before the trial court. There is much wisdom in the axiom that justice delayed is justice denied and separate trials would probably lead to an unconscionably long course of litigation. The ends of justice will actually be better served by a trial...