Piccagli v. North Dakota State Health Dept.

• Decision Date: 20 May 1982
• Docket Number: No. 10160,10160
• Citation: 319 N.W.2d 484
• Parties: Dr. Georgio A. PICCAGLI, Plaintiff and Appellant, v. NORTH DAKOTA STATE HEALTH DEPARTMENT, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 484

319 N.W.2d 484

Dr. Georgio A. PICCAGLI, Plaintiff and Appellant, v. NORTH DAKOTA STATE HEALTH DEPARTMENT, Defendant and Appellee.

Civ. No. 10160.

Supreme Court of North Dakota.

May 20, 1982.

Phillip J. Brown, Bismarck, for plaintiff and appellant.

Kathryn L. Dietz and Nancy K. Hoff, Asst. Attys. Gen., Bismarck, for defendant and appellee; argued by Dietz.

VANDE WALLE, Justice.

Georgio A. Piccagli appealed from the order of the district court of Burleigh County granting summary judgment dismissing Piccagli's lawsuit against the North Dakota State Department of Health (hereinafter "Health Department"). The Health Department moved to dismiss the appeal. We grant the motion to dismiss the appeal.

We have recently decided that an appeal must be dismissed when it is from an order for summary judgment and not the judgment itself. First National Bank of Hettinger v. Dangerud, 316 N.W.2d 102 (N.D.1982); Simpler v. Lowrey, 316 N.W.2d 330 (N.D.1982). Dangerud and Simpler, like the instant case, involve appeals from orders for summary judgment. In Dangerud and the instant case judgment was entered before the appeal was filed, while in Simpler a judgment had not been entered prior to our dismissal of the appeal. In Dangerud we held that "[a]n order for entry of summary judgment must be treated the same as an order for judgment; such order is an intermediate order and is not appealable. Gebeke v. Arthur Mercantile Company, 138 N.W.2d 796 (N.D.1965). Where an appeal was taken from orders for entry of summary judgment but no appeal was taken from the judgment in favor of the defendant, we are without jurisdiction to proceed further in the matter." Dangerud, supra, 316 N.W.2d at 104. Prior to Dangerud we had allowed appeals to be taken from orders granting or denying judgment. "We allowed the appeals in those instances because of the seeming importance of reaching the merits of those cases. Such a policy is no longer practicable, ... Gebeke v. Arthur Mercantile Company, supra, is now the rule." [Emphasis added.] Dangerud, 316 N.W.2d at 104.

Subsequent to Dangerud we decided Simpler. In dismissing the appeal in Simpler we cited Dangerud, saying that "we held that an order granting summary judgment is an intermediate order and is not appealable." 316 N.W.2d at 333.

Piccagli argues that in circumstances such as his, where a judgment was entered, filed, and docketed the same day as the order for summary judgment and the judgment and docket sheet were transmitted to the clerk of the Supreme Court following the notice of appeal, "there is no real question as to the jurisdiction of the Supreme Court to entertain the appeal, but rather there is only the exceedingly technical question of the wording of the Appellant's Notice of Appeal." Gebeke, Dangerud, and Simpler, however, do raise and answer the question of the jurisdiction of this court to hear the appeal.

Piccagli eloquently argues that the rule of Gebeke, Dangerud, and Simpler is wrong because of the harsh result of such a strict application of a technical requirement. That, however, is the inevitable consequence of jurisdictional rules. Similarly harsh results occur when an action is brought after a statute of limitation has expired. We decline to depart from the rule so recently restated in Dangerud and Simpler.

Piccagli raises two additional arguments as reasons why the appeal should not be dismissed, even though he appeals from the order for summary judgment instead of the summary judgment. The first is that we have jurisdiction to hear the appeal due to the authority granted in Section 28-27-02(5), N.D.C.C.:

"The following orders when made by the court may be carried to the supreme court:

* * *

"5. An order which involves the merits of an action or some part thereof; ..."

Piccagli argues that because the order he appealed from granted summary judgment to the Health Department and dismissed his claim, it was an order which involved the merits of his action. Piccagli concedes that if judgment has not been entered no appeal can be taken from an order for summary judgment. However, before entry of judgment the order for summary judgment has no effect. As this court decided in Gebeke, an order for summary judgment is an order "requiring the subsequent entry of judgment to give it effect." 138 N.W.2d at 798. Once judgment has been entered it is the judgment which is effective and a proper appeal is from the judgment. An order under Section 28-27-02(5) is not appealable "unless, in effect it finally determines some substantive legal right of appellant." Fritz v. Hassan, 316 N.W.2d 797, 799 (N.D.1982). ¹ See Bismarck Pub. Sch. v. Ritterbush Assoc., 313 N.W.2d 712, 714 (N.D.1981); Northwest Airlines v. State, Through Bd. of Equal., 244 N.W.2d 708, 710 (N.D.1976); Schaff v. Kennelly, 69 N.W.2d 777, 780 (N.D.1955).

We recently permitted an appeal from an order granting partial summary judgment. That decision does not conflict with what we have said here. In Sheets v. Letnes, Marshall & Fiedler, Ltd., 311 N.W.2d 175 (N.D.1982), the trial court granted Sheets's motion for summary judgment on the issue of liability, leaving for trial the issue of damages. The Letnes firm requested a Rule 54(b), N.D.R.Civ.P., order from the trial court but it was denied. Rule 54(b) allows the trial court to "direct 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 ..." The Letnes firm then appealed from the order granting partial summary judgment. Letnes's alternative was to await the outcome on the issue of damages and then appeal the entire judgment. We decided that the effect of the partial summary judgment operated "in a manner similar to that of an order striking an affirmative defense not provable under the remaining allegations which we have held to be appealable. [Citations omitted.]" Sheets, 311 N.W.2d at 179. We held that "the district court order granting summary judgment on the issue of liability affects the substantial legal rights of the Letnes firm and therefore is appealable." Sheets, 311 N.W.2d at 179. Although both the instant case and the Sheets case involve appeals from orders for summary judgment, the Sheets case is significantly different in its factual setting and in the timing and effect of the order for partial summary judgment to be distinguishable. In Sheets the order for partial summary judgment and the subsequent denial of a Rule 54(b) motion did have an effect upon the merits. It determined liability, prohibited an appeal on the issue of liability, and restricted the trial to the issue of damages. The order for summary judgment in the instant case has no such effect.

Piccagli also argues that Rule 77(d), N.D.R.Civ.P., should prevent this court from dismissing the appeal because he never has been served with notice of entry of judgment by the Health Department. ² The explanatory note to Rule 77 states that "the prevailing party has 10 days after entry of judgment in which to serve the adverse party with notice of entry of judgment. The 60-day time period for appeal by the adverse party does not start until notice of entry of judgment is served [see Rule 4(a), NDRAppP]." Rule 77(d), however, is a procedural rule and not jurisdictional. The trial judge served both parties with the order for summary judgment, the summary judgment, and notice of entry of judgment. Piccagli cannot argue that he did not know that summary judgment had been entered. He learned of it through the same letter from the trial judge which he relied upon to appeal from the order for summary judgment. Because we decide that Rule 77(d) is procedural we are unpersuaded by Piccagli's argument. A different issue would be before us if Piccagli had not received notice of the entry of judgment from either the trial judge or the prevailing party.

As a result of Dangerud, we have returned to an interpretation which is almost as old as the State itself: An order for summary judgment or for judgment is not appealable. ³ We recognize that this interpretation may lead to harsh results. We do not dispute that other State courts when faced with exactly the same issue have arrived at an opposite conclusion. An article in the North Dakota Law Review which discussed the predecessor to Section 28-27-02 stated:

"A few of the decisions [which held nonappealable various orders as not involving the merits of the action] illustrate the point that the distinction between orders affecting a procedural right and those affecting a substantive right is principally one of degree, and difficult to make in close cases. For example, the familiar rule that one cannot appeal from an order for judgment but only from the entry of the judgment itself presents a rather close issue under [Section 28-2702(5), N.D.R.C. 1943] ... Certainly a strong argument could be made for the proposition that an order for judgment is an order which in effect determines the action. It is the last formal order which the trial judge himself makes. Thus, there would be a certain amount of logic to the position that the order is one which involves the merits of the action, a point borne out by the fact that an order for judgment is considered appealable when it is made in a special proceeding. [Oliver v. Wilson, 8 N.D. 590, 80 N.W. 757 (1899) (order granting writ of mandamus).] The rule that one cannot appeal from an order for judgment simply reflects the court's judgment that the order is basically a procedural step." [Footnotes omitted.] NOTE, Appeal and Error--Decisions Reviewable--The "Reviewable Orders" Statute of North Dakota, 28 N.D.L.Rev. 186, 200 (1952).

Originally this appeal involved only the trial court's grant of summary judgment. Both Piccagli and the Health Department filed briefs on the merits. Later, the Health Department filed a motion to dismiss based upon our decision in Dangerud. Because we recognize...