No. 79-56
I N THE SUPREME COURT O THE STATE O MONTANA
F F
ROB ROY, i n d i v i d u a l l y and a s
g u a r d i a n ad l i t e m o f HEATHER ROY,
P l a i n t i f f and A p p e l l a n t ,
W L E NEIBAUER and J O H N CARLSON,
ATR
Defendant and Respondent.
Appeal from: D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f Cascade.
Honorable J o e l G. Roth, J u d g e p r e s i d i n g .
Counsel o f Record:
For Appellant:
Hoyt, T r i e w e i l e r , Lewis & R e g n i e r , Great F a l l s , Montana
F o r Respondent:
J a r d i n e , S t e p h e n s o n , B l e w e t t & Weaver, G r e a t F a l l s ,
Montana
Tom Boland, G r e a t F a l l s , Montana
S u b m i t t e d on b r i e f s : F e b r u a r y 2 7 , 1980
Filed: #{kt! , t? 19-84
Mr. Justice Daniel J. Shea delivered the Opinion of the Court.
Plaintiff appeals an order of the Cascade County District
Court granting summary judgment in favor of defendant Walter
Neibauer. The plaintiff's action against the other defendant,
John Carlson, is still pending. Because the order appealed
from is not a final one, and the plaintiff failed to comply
with the requirements of certification specified in Rule 54(b),
M.R.Civ.P., this appeal is dismissed without prejudice.
Because of the recurring problems this Court has faced with
relation to piecemeal appeals, we are impelled to set forth
the requirements which must be met for an appeal where the
order appealed from is not otherwise final.
On January 5, 1979, the plaintiff commenced an action
against his landlord, Walter Neibauer, and John Carlson,
the tenant in the adjoining dwelling of the landlord's duplex.
The complaint alleged that the defendants negligently permitted
Carlson's dog to bite the plaintiff's ward, Heather ROY,
when she was playing in the yard in front of the duplex, and
sought damages for her injuries.
Both defendants filed answers to the complaint, but
before the action proceeded to trial, the court granted
defendant Neibauer's motion for a summary judgment. The
court's order stated that the judgment did not concern the
liability of the dog owner, John Carlson. The court simply
determined that the landlord had no duty to remove his tenant's
dog from the front yard of the duplex, and thus that he was
not liable to the plaintiff. The plaintiff appeals this order.
The plaintiff's appeal is premature. A judgment which
leaves undetermined the liability of one or more of the
defendants cannot be appealed unless it is expressly made
final upon a determination that there is no just reason for'
delay. See Rule 1, M.R.App.Civ.P.; Rule 54(b), M.R.Civ.P.
See also Krusemark v. Hansen (1979), - Mont . - 597 P.2d
,
48, 36 St.Rep. 159; Knoepke v, Southwestern Ry. Co. (1979),
- Mont . , 595 P.2d 376, 36 St.Rep. 957. The court's
order entered judgment in favor of only one of the defendants,
leaving the liability of defendant Carlson still to be
decided.
Plaintiff appealed from the order granting summary
judgment to defendant Walter Neibauer and made no attempt at
all to comply with the certification requirements of Rule
54(b). Because of this failure to comply we must dismiss
the appeal.
Although this Court has dismissed appeals in the past
for failure to comply with the requirements of Rule 54(b),
it seems that the message has not been received. See, for
example, Krusemark v. Hansen, supra; Knoepke v. Southwestern
Ry. Co., supra; In Re Marriage of Adams (1979), - Mont .
, 598 P.2d 197, 36 St-Rep. 565. We have also dismissed
appeals involving trial court orders which were interlocutory
in nature and lacking a final judgment. See, for example,
Winter v. Rhodes (1979), - Mont. - 589 P.2d 1021, 36
,
St.Rep. 217; Blevins v. Kramer (1978), - Mont . - 587
,
We tried to get this message across in rather strong
terms in the case of In Re Adoption of BGB (1979), - Mont .
, 599 P.2d 375, 36 St-Rep. 1638, but still apparently to
no avail. -
In BGB, we stated:
"Too often this Court is confronted with
cases that are not ready for appellate
review within the meaning of the rules, but
where the opposing parties do not bring this
crucial fact to our attention. We often do
not discover this until we are deeply into the
process of review and indeed often in the
opinion-writing stage. We cannot and will not
tolerate this state of affairs.
"If the case is not ready for review, it should
not be appealed. If for some reason it is
appealed prematurely, it is the duty of the
parties to bring this to our attention by an
appropriate motion to dismiss so that it can be
remanded to the District Court. This Court does
not have the time and the resources to be com-
pelled to independently search the record to
determine if all essential issues have first been
decided at the District Court level." 599 P.2d
at 381.
Here neither party called our attention to the fact
that the summary judgment was interlocutory in nature and
that a Rule 54(b) certification had not been obtained. Both
parties proceeded as though this case was one perfectly
proper to appeal with no further adieu after the trial court
entered summary judgment in favor of defendant Neibauer.
We will set forth the applicable legal principles and
procedural steps involved in relation to Rule 54(b). An
adjudication lacks finality in a multiple claims or multiple
parties action if the trial court adjudicates one or more
but less than all of the claims. Krusemark v. Hansen,
supra, 597 P.2d at 49, 36 St.Rep. at 160. The right of an
immediate appeal from a partial judgment is governed by Rule
54(b), M.R.Civ.P.; In Re Marriage of Adams, supra; Krusemark
v. Hansen, supra. Rule 54(b), M.R.Civ.P., modeled after
Rule 54(b), F.R.Civ.P., allows the trial court to certify a
judgment as final. Rule 54(b), F.R.Civ.P. is designed to
facilitate the entry of judgment on one or more claims, or
as to one or more parties, in a multi-claim/multi-party
action. Allis-Chalmers Corp. v. Philadelphia Electric Co.
(3rd Cir. 1975), 521 F.2d 360, 363.
Rule 54(b) attempts to strike a balance between the
undesirability of piecemeal appeals and the need to make
review available at a time when it best serves the needs of
the parties. Aetna Insurance Company v. Newton (3rd Cir.
1968), 398 F.2d 729, 734. It is in the discretion of the
-4-
District Court to grant or deny a request for a Rule 54(b)
certification, Singer Housing Co. v. Seven Lakes Venture
(D.Colo. 1979), 466 F.Supp. 369, 378; United Bank of Pueblo
v. Hartford Acc. & Indem. Co. (10th Cir. 1976), 529 F.2d
490, 492. This does not mean, however, that the decision
allowing an appeal to proceed should be lightly entered.
The proper procedure and approach which a trial court
should take in relation to a certification under Rule 54(b),
is discussed in Panichella v. Pennsylvania Railroad Company
(3rd Cir. 1958), 252 F. 2d 452, 455:
"Thus, the procedure contemplated by Rule 54(b)
is usually more than a formality.. [A]n..
application for a 54(b) order requires the trial
judge to exercise considered discretion, weighing
the overall policy against piecemeal appeals
against whatever exigencies the case at hand may
present. Indeed, the draftsmen of this Rule have
made explicit their thought that it would serve
only to authorize 'the exercise of a discretionary
power to afford a remedy in the infrequent harsh
case.. .
. ' 28 U.S.C.A., Federal Yules of Civil
Procedure, 118-119 note. It follows that 54(b)
orders should not be entered routinely or as a
courtesy or accommodation to counsel. The power
which this Rule confers upon the trial judge should
be used only 'in the infrequent harsh case' as an
instrument for the improved administration of
justice and the more satisfactory disposition of
litigation in the light of the public policy
indicated by statute and rule. See 6 Moore,
Federal Practice, 1953, 264-265."
Because an appellate court cannot consider the merits
of a nonfinal order, the threshhold question zeros in on
the propriety of the Rule 54(b) certification. Allis-
Chalmers Corp. v. Philadelphia Electric Co., supra, 521 F.2d
at 362; Gumer v. Shearson, Hammill & Co., Inc. (2nd Cir.
1974), 9 6 F.2d 283, 285. In federal court practice it has
been the rule that an appellate court may dismiss an appeal
from a judgment certified pursuant to Rule 54(b), if it
finds that the trial court abused its discretion in certifying
the order. Sears Roebuck & Co. v. Mackey (1956), 351 U.S.
427, 437, 76 S.Ct. 895, 100 L.Ed. 1297. Indeed, it has
been held that if a trial court abuses its discretion in
certifying an order of summary judgment as final, an appellate
court is without jurisdiction to entertain the appeal.
Allis-Chalmers Corp. v. Philadelphia Electric Co., supra,
521 F.2d at 362-363. See B. B. Adams Gen. Con., Inc. v.
Department of HUD (5th Cir. 1974), 501 F.2d 176, 177.
The burden is on the party seeking final certification
to convince the trial court that the case is the "infrequent
harsh case" meriting a favorable exercise of discretion.
Allis-Chalmers Corp. v. Philadelphia Electric Co., supra,
521 F.2d at 365; See Wright & Miller, Federal Practice and
Procedure, Civil, S2659 (1973), at 75, et seq, and the fact
that neither party objected to the issuance of a Rule 54(b)
certificate is not sufficient reason to sustain a trial
court's action. The trial court has an independent duty to
avoid piecemeal appeals and protect parties' rights against
prejudice resulting from premature appeal. Arlinghaus v.
Ritenour (2d Cir. 1976), 543 F.2d 461, 464.
Rule 54(b) requires that before a certification can be
made the trial court must find that there be "no just reason
for delay." A proper exercise of discretion under this rule
requires the trial court to do more than merely recite the
magic words that there is "no just reason for delay."
The trial court must clearly articulate the reasons and factors
underlying its decision to order a Rule 54(b) certification.
See In Re Adoption of BGB, supra, 599 P.2d at 381, 36 St-Rep.
at 1746. As an appellate court we must have some basis for
distinguishing between well grounded orders which have
considered all of the relevant factors and mere boilerplate
approval unsupported by the facts or an analysis of the law.
Allis-Chalmers Corp. v. Philadelphia Electric Co., supra, 521
F.2d at 364. Also see Gumer v. Shearson, Hammill & Co.,
Inc., supra, 516 F.2d at 286; and Schwartz v. Compagnie
General Transatlantique (2nd Cir. 1968), 405 ~ . 2 d270, 275.
An appellate court will normally consider the following
factors when considering a Rule 54(b) certification:
"1. The relationship between the adjudicated and
unadjudicated claims;
"2. the possibility that the need for review might
or might not be mooted by future developments in
the district court;
"3. the possibility that the reviewing court might
be obliged to consider the same issue a second time;
"4. the presence or absence of a claim or counter-
claim which could result in a setoff against the
judgment sought to be made final;
"5. miscellaneous factors such as delay, economic
and solvency considerations, shortening the time
of trial, triviality of competing claims, expense,
and the like." Singer Housing Co. v. Seven Lakes
Venture, supra, 466 F.Supp. at 378-379.
Depending, of course, on the particular case, all or
some of the above factors may bear upon the propriety of the
order granting a Rule 54(b) certification. Allis-Chalmers
Corp. v. Philadelphia Electric Co., supra, 521 F.2d at 364.
The guiding principles for a Rule 54(b) certification may be
summarized as follows:
". . . (1) the burden is on the party seeking final
certification to convince the district court that
the case is the 'infrequent harsh case' meriting a
favorable exercise of discretion; (2) the district
court must balance the competing factors present
in the case to determine if it is in the interest
of sound judicial administration and public policy
to certify the judgment as final; (3) the district
court must marshal1 and articulate the factors
upon which it relied in granting certification so
that prompt and effective review can be facilitated."
Allis-Chalmers Corp. v. Philadelphia Electric Co.,
supra, 521 F.2d at 365.
We expect that in the future, attorneys in this state
will faithfully adhere to the rules which apply to appealable
orders under Rule 1, and to the rules which apply to obtaining
certification under Rule 54(b).
This appeal is dismissed without prejudice.
p
d
)& Justic
We Concur:
Chief Justice