Wyatt v. Adams, 960020

• Decision Date: 27 June 1996
• Docket Number: No. 960020,960020
• Citation: 551 N.W.2d 775
• Parties: Donald G. WYATT, Plaintiff and Appellant and Shirley A. Wyatt, Intervenor v. Ardell A. ADAMS, Defendant and Appellee and Grand Forks Welding and Machine Company, Defendant and Appellee Civil
• Court: North Dakota Supreme Court

Page 775

551 N.W.2d 775

Donald G. WYATT, Plaintiff and Appellant and Shirley A. Wyatt, Intervenor v.Ardell A. ADAMS, Defendant and Appellee and Grand Forks Welding and Machine Company, Defendant and Appellee

Civil No. 960020.

Supreme Court of North Dakota.

June 27, 1996.

Ralph F. Carter(argued), and Shirley A. Dvorak(on brief), of Moosbrugger, Dvorak & Carter, Grand Forks, for plaintiff and appellant.

Jay Fiedler, of Pearson, Christensen, Larivee, Clapp, Fiedler & Fischer, Grand Forks, for defendant and appelleeArdell A. Adams.

Michael J. Morley, of Morley, Morley & Light, Ltd., Grand Forks, for defendant and appelleeGrand Forks Welding and Machine Company.

NEUMANN, Justice.

Donald Wyatt appealed from a district court judgment dismissing Grand Forks Welding and Machine Company as a partydefendant in Wyatt's action to recover damages for injuries sustained by him when he fell from a ladder.We conclude that the trial court improvidently certified the judgment as final under Rule 54(b), N.D.R.Civ.P., and we dismiss the appeal.

Wyatt was seriously injured in December 1987 when he fell from a ladder owned by Ardell Adams, the father of Wyatt's former spouse, while using the ladder at Adams' home.Wyatt sued Adams for damages.Wyatt later joined as defendantsR.D. Werner Company, the ladder's manufacturer, and Grand Forks Welding, whom Wyatt discovered had performed welding repairs on the ladder prior to the accident.Wyatt settled with R.D. Werner Company, who was then dismissed from the case.Upon motion, the district court also dismissed Grand Forks Welding as a partydefendant on the ground the statute of limitations had run on Wyatt's claim against Grand Forks Welding.

Upon Grand Forks Welding's request, the district court certified the dismissal as a final judgment under Rule 54(b), N.D.R.Civ.P. Wyatt was then forced to file an immediate appeal to preserve his argument that the district court wrongly decided the statute of limitations had run on Wyatt's claim against Grand Forks Welding and erred in dismissing Grand Forks Welding from the case.

Under Rule 54(b), N.D.R.Civ.P., a trial 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."The burden is upon the party requesting Rule 54(b) certification to show extraordinary circumstances or that cognizable, unusual hardship to the litigants will arise if resolution of the issues on appeal is deferred.Bjornson v. Guaranty National Ins. Co., 510 N.W.2d 622(N.D.1994).In determining whether to issue a Rule 54(b) certification, the trial court must consider our longstanding policy against piecemeal appeals.Bulman v. Hulstrand Constr. Co., Inc., 503 N.W.2d 240(N.D.1993).We are not bound by a trial court's determination, and we will review a Rule 54(b) certification to determine if the court abused its discretion.Gessner v. City of Minot, 529 N.W.2d 868(N.D.1995).The purpose of our review is to determine whether the case presents an "infrequent harsh case" warranting the extraordinary remedy of an otherwise interlocutory appeal.Gissel v. Kenmare Township, 479 N.W.2d 876, 877(N.D.1992).

Grand Forks Welding has not demonstrated hardship or prejudice would result in this case without certification.The possibility that a second trial may be avoided is not a sufficient reason for granting a Rule 54(b) certification, absent unusual and compelling circumstances.Imperial Oil v. Hanson, 510 N.W.2d 598(N.D.1994).Wyatt's action against Adams is pending.Wyatt and Grand Forks Welding concede the outcome of that litigation could potentially result in Wyatt's claim against Grand Forks Welding becoming moot.For example, if the factfinder concludes Wyatt is more than 50 percent at fault for the accident or if it determines Adams is 100 percent at fault, Wyatt's claim against Grand Forks Welding becomes moot.We have held on numerous occasions that potential mootness is a just reason for delay in entering a final judgment, making it inappropriate to enter a Rule 54(b) certification.Ingalls v. Glass Unlimited, Inc., 529 N.W.2d 872(N.D.1995);Gessner v. City of Minot, 529 N.W.2d 868(N.D.1995);Imperial Oil v. Hanson, 510 N.W.2d 598(N.D.1994);Bulman v. Hulstrand Construction Co., Inc., 503 N.W.2d 240(N.D.1993).Rule 54(b) certification is inconsistent with the appropriate exercise of sound discretion when there is a possibility that the need for review may be mooted by future developments in the district court.Bulman, supra, 503 N.W.2d at 242.

Under these circumstances, we conclude the trial court abused its discretion in granting the Rule 54(b) certification.Accordingly, we dismiss the appeal, and we direct that costs on appeal be assessed against Grand Forks Welding and in favor of the appellant.

APPEAL DISMISSED.

VANDE WALLE, C.J., and SANDSTROM and MESCHKE, JJ., concur.

MARING, Justice, dissenting.

I disagree with the majority opinion because I believe that the time has come for this court to be more flexible in its application of Rule 54(b), N.D.R.Civ.P., more deferential to the district courts and generally more willing to hear appeals which are products of Rule 54(b) certification.

I am of the opinion that this court needs to pull back from its restrictive approach to Rule 54(b), an approach which apparently found its foothold in Union State Bank v. Woell, 357 N.W.2d 234(N.D.1984).In Union State Bankthis court looked to several federal cases, in particular Allis-Chalmers Corp. v. Philadelphia Electric Co., 521 F.2d 360(3d Cir.1975), in developing a set of "relevant factors in Rule 54(b)cases."¹Union State Bank, 357 N.W.2d at 238.Since then this court has relied, either implicitly or explicitly, on the Allis-Chalmers factors in deciding Rule 54(b)cases.SeeStriegel v. Dakota Hills, Inc., 365 N.W.2d 491, 494(N.D.1985);Sargent County Bank v. Wentworth, 434 N.W.2d 562, 564(N.D.1989);Peterson v. Zerr, 443 N.W.2d 293, 297(N.D.1989);Club Broadway, Inc. v. Broadway Park, 443 N.W.2d 919, 921(N.D.1989);Janavaras v. Nat. Farmers Union Property, 449 N.W.2d 578, 581(N.D.1989);Smith v. Vestal, 456 N.W.2d 502, 504-05(N.D.1990);Gissel v. Kenmare Tp., 479 N.W.2d 876, 877(N.D.1992);Vanover v. Kansas City Life Ins. Co., 535 N.W.2d 424, 426(N.D.1995).

In the process of developing its restrictive approach to Rule 54(b), this court has lost sight of the rule's purpose.Rule 54(b) is "directed to the timing of appeal in a procedural system allowing the parties almost unlimited control of the size and shape of the action."James Wm. Moore, Moore's Federal Practice, p 54.27at 54-79(2d Ed.1996).Within such a system "justice dictates that some matters be finally settled ahead of complete disposition of the case."Id.Under Rule 54(b), the trial court acts as a "dispatcher," determining "the 'appropriate time' when each final decision in a multiple claims action is ready for appeal."Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 8, 100 S.Ct. 1460, 1465, 64 L.Ed.2d 1(1980)."No precise test exists" to guide trial courts in determining whether to grant Rule 54(b) certification and "the absence of detailed criteria to guide the trial judges' exercise of discretion reflects a conscious decision by the Supreme Court not to restrict the operation of [Rule 54(b) ] within too narrow a framework."Wright, Miller & Kane, Federal Practice and Procedure, 10 Civil§ 2659 at 100 (2d Ed.1983).

The court's continued reliance on Allis-Chalmers is misguided considering the developments in Rule 54(b) jurisprudence that have occurred since the Supreme Court analyzed Rule 54(b) in Curtiss-Wright, supra.Contrary to the position taken by the majority here, the Curtiss-Wright court indicated that:

"the phrase 'infrequent harsh case' in isolation is neither workable nor entirely reliable as a benchmark for appellate review.There is no indication it was ever intended by the drafters to function as such."

Curtiss-Wright, 446 U.S. at 10, 100 S.Ct. at 1466.Instead, "the standard against which a district court's discretion is to be judged is the 'interest of sound judicial administration.' "Id.(quotingSears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437, 76 S.Ct. 895, 900, 100 L.Ed. 1297(1956)).Appellate courts should review the trial court's "evaluation of such factors as the interrelationship of the claims so as to prevent piecemeal appeals in cases which should be reviewed only as single units."Curtiss-Wright, 446 U.S. at 10, 100 S.Ct. at 1466.Yet, after this review, "the discretionary judgment of the district court should be given substantial deference, for that court'is the one most likely to be familiar with the case and with any justifiable reasons for delay.' "Id.(quotingSears, 351 U.S. at 437, 76 S.Ct. at 901).

I submit that, in the interest of "sound judicial administration," the cost of litigation to the parties should be a factor recognized in considering Rule 54(b) certifications by this court.The cost of litigation has increased dramatically in recent years.See, e.g., Robert E. Litan, Speeding Up Civil Justice, 73 Judicature 162 (1989).The possibility of two trials presents far greater cost to a plaintiff in comparison to two appeals.Likewise, holding a defendant in a case until the bitter end has an economic effect on that party's litigation costs.We cannot simply ignore these realities.

The modern approach to Rule 54(b) is a less restrictive approach."The present trend is toward greater deference to a district court's decision to certify under Rule 54(b)."Texaco, Inc. v. Ponsoldt, 939 F.2d 794, 798(9th Cir.1991).The Texaco court held that "Rule 54(b) certification is proper if it will aid 'expeditious decision' of the case."Id. at 797.Other circuit courts of appeal have also concluded that "the interest of sound...