Citizens State Bank-Midwest v. Symington

SANDSTROM, Justice,

dissenting.

[¶ 30] Because I believe N.D.R.Civ.P. 54(b) certification was improvidently granted, I respectfully dissent.

[¶ 31] In Bulman v. Hulstrand Construction, 503 N.W.2d 240, 241 (N.D.1993) (citations omitted), we noted the longstanding “strong policy against piecemeal appeals” and emphasized that Rule 54(b) certification is an “extraordinary remedy” reserved for the “infrequent harsh case” when there is “no just reason for delay.” We held that potential mootness is a just reason for delay, making Rule 54(b) certification improvidently granted. Id. at 242.

[¶ 32] A Dictionary of Modern Legal Usage defines mootness as “the fact or quality of having no practical importance.” A Dictionary of Modem Leqal Usage 572 (2d ed. 1995).

[¶ 33] The partial summary judgment has given the plaintiffs a money judgment against Myron Symington. But, as the plaintiffs not only concede but plead, My*688ron Symington is insolvent (his “liabilities exceeding his assets”). Without the plaintiffs prevailing on the unresolved “fraudulent transfer” claim, the money judgment is not going to be paid.

[¶ 34] By ruling the Rule 54(b) certification was improvidently granted, no harsh result follows. The partial summary judgment for money is not going to be paid until after the fraudulent-transfer claim is decided, if at all.

[¶ 35] By ruling the Rule 54(b) certification was appropriate, no matter which way we decide, more appeals are going to follow.

[¶ 36] If we were to affirm the partial summary judgment, then the fraudulent-transfer claim must be resolved in the district court. No matter which way the district court decides, another appeal is likely to follow.

[¶ 37] If we reverse the partial summary judgment (as the majority opinion does), then the ease goes back to the district court for trial. If the district court tries both counts together, then no matter which way the trial goes, another appeal is likely to follow.

[¶ 38] And, if we do reverse the partial summary judgment, the case goes back to the district court, and following the reasoning of the district court and the majority opinion, the case may well be bifurcated for trial under N.D.R.Civ.P. 42(b). Then whichever way the trial turns out, the losing side will appeal, and under the majority’s and district court’s analysis, Rule 54(b) certification will be appropriate. If on that second appeal the plaintiffs prevail, then the case will go back for trial on the fraudulent-transfer claim. No matter which way the second trial goes, the losing party will appeal again.

[¶ 39] Although there is no harsh result from holding Rule 54(b) certification improvidently granted, treating it as appropriate will almost certainly result in a second appeal, with a significant prospect of a third appeal.

[¶ 40] I would dismiss the appeal.

[¶ 41] DALE V. SANDSTROM