Olmstead v. Cattle, Inc., 4568

• Citation: 541 P.2d 49
• Decision Date: 06 October 1975
• Docket Number: No. 4568,4568
• Parties: Roger Noel OLMSTEAD, Appellant (Plaintiff below), v. CATTLE, INC., a Nevada Corporation, et al., Appellees (Defendants below).
• Court: United States State Supreme Court of Wyoming

Page 49

541 P.2d 49

Roger Noel OLMSTEAD, Appellant (Plaintiff below), v. CATTLE, INC., a Nevada Corporation, et al., Appellees (Defendants below).

No. 4568.

Supreme Court of Wyoming.

Oct. 6, 1975.

H. S. Harnsberger, Jr., Riverton, Lee Overfelt and Charles A. Bradley, Billings, Mont., for appellant.

C. Edward Webster, III, Cody, Joseph E. Darrah, Powell, Louis L. Walrath, Thermopolis, Richard W. Day, Cody, Richard M. Davis, Jr., Sheridan, and R. R. Bostwick, Casper, for appellees.

Before GUTHRIE, C. J., and Mc,CLINTOCK, THOMAS, RAPER and ROSE, JJ.

THOMAS, Justice.

The appellant, Roger N. Olmstead (plaintiff in the district court), brought this action against the appellees, American Granby Company, Billings Pipe and Pump Supply Co., and State Stove and Manufacturing Company, Inc., and six other defendants seeking to recover damages for personal injuries that he sustained when an air pressure tank exploded. The appellees individually filed motions to dismiss under Rule 12(b), W.R.C.P., asserting, among other grounds, lack of jurisdiction by the court over the persons of these defendants. In separate orders the district court dismissed American Granby Company as a party defendant, dismissed the complaint as to the defendant Billings Pipe and Pump Supply Co., and dismissed the cause as to the defendant State Stove and Manufacturing Company, Inc., upon finding that these defendants did not come within the provisions of § 5-4.2, W.S.1957, 1975 Cum.Supp., which does authorize a Wyoming court to exercise personal jurisdiction over nonresident defendants in the instances defined in the statute. The appellant then filed a Notice of Appeal from the three orders of dismissal.

In this Court the appellees filed a Motion to Dismiss Appeal supported by a Memorandum. The appellant then filed a Memornadum opposing the Motion to Dismiss Appeal, and the appellees filed a Reply Memorandum in response to the appellant's Memorandum. On the basis of these pleadings the Court, without oral argument, has resolved the Motion to Dismiss Appeal in favor of the appellees.

The ground asserted for dismissal by the appellees is that the case involves multiple parties, and in the orders which were entered the district court adjudicated the rights and liabilities of fewer than all the parties, but the district court did not, in accordance with Rule 54(b), W.R.C.P., '* * * direct the entry of a final judgment as to one or more but fewer than all of the * * * parties * * * upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.' The appellees contend that in the absence of the determination and direction required by Rule 54(b), W.R.C.P., no appeal can be taken from such orders. In opposing the Motion to Dismiss Appeal the appellant contends that orders such as these do not require an express determination that there is no just reason for delay nor an express direction for the entry of judgment because such orders are not judgments as defined in Rule 54(a), W.R.C.P., but instead are orders which meet the definition set forth in Rule 72(a), W.R.C.P. of final orders, and they are appeable as such by right under the law.

If any of these defendants were the sole defendant in the action the contention of the appellant would be well taken. This case, however, is one in which 'multiple parties are involved,' as set forth in the portion of Rule 54(b), W.R.C.P., which conditions the discretionary authority of the court to '* * * direct the entry of a final judgment as to one or more but fewer than all of the * * * parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.'

Historically, the reasoning which led to the adoption of Rule 54(b), W.R.C.P. is that piecemeal appeals should be avoided because of the disruption resulting in the judicial process. This court on several occasions has noticed this policy and written in support of it. Lutheran Hospitals and Homes Society of America v. Yepsen Wyo., 469 P.2d 409 (1970); Reeves v. Harris, Wyo., 380 P.2d 769 (1963); Cf., Logan v. Stannard, Wyo., 439 P.2d 124 (1968). In Reeves v. Harris, supra, this Court, relying upon a review of the cases and the notes of the federal advisory committee, stated that they indicated the undesirability of piecemeal appeals in cases involving more than one claim for relief or multiple parties.

The second sentence of Rule 54(b), W.R.C.P., provides:

'* * * In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all 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.'

This language must be read in connection with the provisions of Rule 58, W.R.C.P., which specify the event which signals the start of the 30-day period provided by Rule 73(a), W.R.C.P., during which a notice of appeal must be filed. Rule 73(a), W.R.C.P. assumes the entry of a judgment or final order as specified in Rule 58, and that event did not occur in this instance because there was neither the express determination that there is no just reason for delay nor the express direction for the entry of judgment. An order which comes within the reach of Rule 54(b) cannot be final in the sense that it determines the action and prevents judgment as those words are used in Rule 72(a), W.R.C.P., because in the language of Rule 54(b) such an order does '* * * not terminate the action as to any of the * * * parties * * *' and it then '* * * is subject to revision at any time before the entry of judgment adjudicating * * * the right and liabilities of all the parties.' The instant case cannot, in light of the second sentence of Rule 54(b), W.R.C.P., be distinguished on the ground that orders, not judgments, are involved.

The prior decisions of this court, some of which are emphatic, while not involving this precise factual situation, lead to this construction and application of Rule 54(b) in this instance. Luthern Hospitals and Homes Society of America v. Yepsen, supra; Ambariantz v. Cunningham, Wyo., 460 P.2d 216 (1969); Whitehouse v. Stock Wyo., 458 P.2d 100 (1969); United Pacific Insurance Company v. Martin and Luther General Contractors, Inc., Wyo., 455 P.2d 664 (1969); Spriggs v. Pioneer Carissa Gold Mines, Inc., Wyo., 453 P.2d 400 (1969); Wheatland Irrigation District v. Two Bar-Muleshoe Water Company, Wyo., 431 P.2d 257 (1967); State ex rel. Pacific Intermountain Express, Inc. v. District Court of Second Judicial District, Wyo., 387 P.2d 550 (1963); and Reeves v. Harris, supra.

Rule 54(b), W.R.C.P., is patterned after Rule 54(b), Fed.R.C.P., and the cases decided by the federal courts in such instances require or assume that the trial court must make an express determination that there is no just reason for delay and make the express direction for the entry of judgment. E. g., Bailey v. Rowan Drilling Company, Inc., 441 F.2d 57 (5th Cir. 1971); Bernardi Bros., Inc. v. Pride Manufacturing, Inc., 427 F.2d 297 (3rd Cir. 1970); Dacey v. Florida Bar, Inc., 414 F.2d 195 (5th Cir. 1969); Coulter v. Sears, Roebuck and Co., 411 F.2d 1189 (5th Cir. 1969); Farrell v. Piedmont Aviation, Inc., 411 F.2d 812 (2nd Cir. 1969); Sullivan v. Delaware River Port Authority, 407 F.2d 58 (3rd Cir. 1969); Beaverly Hills Federal Savings and Loan Association v. Webb, 406 F.2d 1275 (9th Cir. 1969); Aetna Insurance Company v. Newton, 398 F.2d 729 (3rd Cir. 1968); Peralta v. Quad Tool and Dye Supply Co., 370 F.2d 103 (3rd Cir. 1966); Schnur & Cohan, Inc., v. McDonald, 328 F.2d 103 (4th Cir. 1964); Rinker v. Local Union No. 24 of Amalgamated Lithographers of America, 313 F.2d 956 (3rd Cir. 1963); Miles v. City of Chandler, 297 F.2d 690 (9th Cir. 1961); Lopinsky v. Hertz Drive-Ur-Self Systems, Inc., 194 F.2d 422 (2nd Cir. 1961); and Tobin Packing Co., Inc., v. North American Car Corp., 188 F.2d 158 (2nd Cir. 1951).

Schnur & Cohan v. McDonald, supra, is the case most similar in its facts to this case. The situation presented here is perhaps best explained by the court in Peralta v. Quad Tool and Dye Supply Co., supra, in which the court said, beginning at p. 104, 105:

'While an order quashing service of process is ordinarily appealable (citiations omitted), where, as here, it occurs during the course of multiparty litigation, the balance between piecemeal review and expeditious resolution of civil disputes is struck by making the appealability of the adjudication depend upon discretionary determinations of the District Court, as provided by Rule 54(b) of the Federal Rules of Civil Procedure, * * *

* * *

* * *

'* * * In the absence of express determination by the District Court in this case that there is no just reason for delay and an express direction to enter judgment, this court has no jurisdiction to consider the merits of the appeal. * * *'

The orders entered in the instant case related to and adjudicated the rights and liabilities of fewer than all the parties, thus bringing it within the language of Rule 54(b), W.R.C.P. In light of the foregoing discussion and authorities, and in the absence of express determinations that there is no just reason for delay and express directions for the entry judgment in the district court's orders, the Motion to Dismiss Appeal must be granted. Unless the language required by Rule 54(b), W.R.C.P. is incorporated in it an order in an action involving multiple parties which dismiss the action as to fewer than all the defendants, for lack of jurisdiction over the dismissed defendants, is not a final order from which an appeal can be taken.

Appeal dismissed.

ROSE, Justice (dissenting).

In this...