Central Power Electric Cooperative, Inc. v. C-K, Inc.

512 N.W.2d 711, 1994 N.D. LEXIS 58, 1994 WL 58354

• Court: North Dakota Supreme Court
• Decided: March 1, 1994
• Docket: Civ. 930258
• Status: Published

Opinions

NEUMANN, Justice.

This is an appeal from a district court order granting partial summary judgment in an eminent domain proceeding. We lack jurisdiction, decline to exercise our supervisory powers, and, accordingly, dismiss.

Central Power Electric Cooperative, a corporation (hereinafter Condemnor), is a rural electric generation and transmission cooperative. As part of a joint venture of Condem-nor and Otter Tail Power Company, a new substation was built just outside of Botti-neau, North Dakota. Part of this project included the construction of a transmission line from Gardena to Bottineau. The property touched by the proposed route for the new line included a residential mobile home park owned by C-K, Inc., a corporation, and Gordon D. Carlson, Robert R. Kromrey, and Rose M. Carlson (hereinafter Landowners).

After failed negotiations, eminent domain proceedings under chapter 82-15 of the North Dakota Century Code were initiated by Condemnor on March 8, 1993, when it served a summons and complaint on Landowners. Landowners timely filed an answer in which they requested a trial by jury on the matter of damages.¹ On May 7, 1993, Con-demnor made a motion to the court requesting partial summary judgment as to use and necessity for an easement upon a portion of Landowners’ mobile home park. This motion was accompanied by affidavits of Kenneth D. Holand, Project Supervisor for Con-demnor, and Jay Jacobson, Manager of Operations and Engineering for Condemnor. Landowners’ response in opposition to this motion included an affidavit of Gordon D. Carlson which set forth two alternative routes for the transmission line. By order dated June 2, 1993, the trial court granted Condemnor’s motion for partial summary judgment.

The partial summary judgment order, drafted by Condemnor, granted Condemnor a transmission line easement on a portion of Landowners’ property, and conditioned this easement “upon the payment of $2,500 into the Court by [Condemnor] pending determination of actual damages.” Immediately thereafter, prior to any determination of damages by a jury, Condemnor deposited $2,500 with the court and constructed the transmission line across Landowners’ property. This appeal followed.

Landowners raise three issues on appeal: first, whether the trial court violated NDCC § 32-15-29 when it made a determination of damages without a hearing on the merits, and when it granted Condemnor possession of an easement on Landowners’ property pri- or to a hearing on damages; second, whether the granting of partial summary judgment was proper; and third, whether the order for partial summary judgment in this matter is a final order.

I. APPEALABILITY

Condemnor has made a motion to this court requesting that we dismiss the appeal and award attorney’s fees. In its motion, Condemnor argues that this partial summary judgment order is not subject to appeal under NDCC § 28-27-02, and also that there has been no Rule 54(b) certification. We agree that this order is not appealable because of the lack of Rule 54(b) certification.

There is a well-established, two-prong inquiry used when analyzing the jurisdiction of this court to consider appeals from orders in cases where there are unadjudicated claims remaining to be resolved by the trial court. E.g., Thompson v. Goetz, 455 N.W.2d 580 (N.D.1990). The first of the two requirements is that the intermediate order appealed from must satisfy one of the enumerated bases for appeal found in NDCC § 28-27-02. E.g., Klindtworth v. Burkett, 477 N.W.2d 176 (N.D.1991). The second requirement is a Rule 54(b) certification by the trial court. Id.; N.D.R.Civ.P. Rule 54(b).

In determining the appealability of this particular order granting partial summary judgment, we acknowledge that under the unique set of facts surrounding this case, this interlocutory order may well involve the merits of the action, or at least some part thereof. See NDCC § 28-27-02(5). Although not all orders granting partial summary judgment fall within § 28-27-02, see e.g., Kavaney Realtor & Developer, Inc. v. Travelers Ins. Co., 501 N.W.2d 335, 336 n. 1 (N.D.1993) (order for partial summary judgment not appealable under NDCC § 28-27-02, but renewable upon appeal from judgment); see also Piccagli v. North Dakota State Health Dept., 319 N.W.2d 484 (N.D. 1982) (order for summary judgment did not fall within § 28-27-02(5)), the fact that the order allowed Condemnor to construct the transmission line prior to the jury trial on damages gives this order an element of finality. See Sime v. Tvenge Assocs. Architects & Planners, P.C., 488 N.W.2d 606, 608 n. 1 (N.D.1992) (one concern when determining whether an order is appealable under NDCC § 28-27-02 is whether the trial court meant it to be final). We refrain from deciding this particular issue in this case. Instead, we focus on the fact that this order fails to meet the requirements of prong two, due to the absence of a Rule 54(b) certification.

Not only do we require Rule 54(b) certification for appeals of orders for partial summary judgment, Ceartin v. Ochs, 479 N.W.2d 863, 865-66 n. 2 (N.D.1992); Gissel v. Kenmare Township, 463 N.W.2d 668 (N.D.1990); Regstad v. Steffes, 433 N.W.2d 202 (N.D.1988); Brown v. Will, 388 N.W.2d 869 (N.D.1986), but traditionally, we have also relied on the second prong of this test when determining the appealability of eminent domain cases after a finding of use and necessity, but prior to a determination of damages, Wells County Water Resource Dist. v. Solberg, 434 N.W.2d 577 (N.D.1989) (dismissed appeal; order upholding public necessity of easement with no Rule 54(b) certification); Otter Tail Power Co. v. Demchuk, 314 N.W.2d 298 (N.D.1982) (dismissed appeal; interlocutory orders without Rule 54(b) certification, prior to determination of damages). Regardless of the outcome of prong one, for purposes of this opinion, the failure of prong two makes this order unappealable.²

II. SUPERVISION

Because Landowners essentially concede in their appellate brief that this order is not appealable without Rule 54(b) certification, we consider this appeal as a request to exercise our supervisory jurisdiction. N.D. Const. art. VI, § 2; see B.H. v. K.D., D.D., 506 N.W.2d 368, 372 (N.D.1993) (“This Court has authority to exercise its original jurisdiction by issuing a supervisory writ.”). Exercise of our supervisory jurisdiction is a matter of discretion, and we exercise it rarely and cautiously. Jane H. v. Rothe, 488 N.W.2d 879, 881 (N.D.1992). “Our superintending control over inferior courts is used to prevent injustice in extraordinary cases where no other remedy is adequate or allowed by law.” Odden v. O’Keefe, 450 N.W.2d 707, 708 (N.D.1990). We make determinations of whether to exercise supervisory jurisdiction on a case-by-ease basis, looking at the unique set of circumstances of each ease. E.g., Heartview Found, v. Glaser, 361 N.W.2d 232 (N.D.1985).

Landowners would have us believe that the nature of this ease is extraordinary, and, as such, merits our review. They distinguish the facts of this case from those of a typical eminent domain proceeding under chapter 32-15 of the North Dakota Century Code; specifically, the fact that Con-demnor was allowed to construct the transmission line on the property before damages were determined and before final judgment was entered. Section 32-15-29 of the North Dakota Century Code does not provide for quick take, it provides for possession after judgment. Landowners’ argument of the impropriety of Condemnor’s actions is based on what we said in Johnson v. Wells County Water Resource Bd., 410 N.W.2d 525 (N.D.1987). In Johnson, we decided that the quick-take eminent domain' constitutional provision³ was not self-executing. Id. Absent specific legislative granting of the power of quick take, the state, or any of its departments, agencies, or political subdivisions having the power of eminent domain, lack the power to exercise quick take. Id. Condem-nor does not contest Landowners’ argument that no such legislative grant of the quick-take power has been granted to electrical cooperatives such as Condemnor.

If the contentions Landowners are making are true, then this may indeed be an unjust and extraordinary case warranting our supervision. The possible illegality and unconstitutionality of such an act is made clear in Johnson, 410 N.W.2d at 525. The diminished protection of property owners that is inherent in quick-take proceedings, id., is the root of Landowners’ complaint in this appeal. Such vulnerability is exacerbated by Landowners’ contention that quick take was never addressed at trial, and only reared its ugly head when Condemnor incorporated it into the order it drafted for the judge to sign.

If we could stop our analysis here, we would surely grant supervision; however, we must also consider whether other adequate remedies, exist. Lang v. Glaser, 359 N.W.2d 884 (N.D.1985). Landowners failed to seek a stay or reconsideration by the trial court, and the transmission line has already been constructed on Landowners’ property. If Condemnor’s actions are found to be illegal or unconstitutional, it seems to us that a significant portion of any damages that might exist have already been incurred. The element of urgency does not exist. The order granting partial summary judgment will be appealable after damages are determined and final judgment is entered. We are not convinced that damages, of a nature different than those which already may have occurred, will result if we decide not to exercise our supervisory power.

Although this case may have the necessary ingredients to constitute an extraordinary case, Landowners, in effect, sat on their rights. They did not take the necessary steps available to prevent the injustice they now complain of, and the remedy of appeal will be available after entry of final judgment. It is for these reasons that we decline to exercise our power of supervision, and therefore dismiss. We will consider the possible illegality of Condemnor’s actions on appeal from the final judgment should one be brought later. Condemnor’s request for attorney’s fees is denied, and neither party is awarded costs.

SANDS.TROM, J., and ALLAN SCHMALENBERGER, District Judge, concur. ALLAN SCHMALENBERGER, District Judge, sitting in place of MESCHKE, J., disqualified.

1 . Eminent domain proceedings under chapter 32-15 may be divided into two parts. A bench trial is held to determine public benefit and necessity, and a jury trial may be requested to determine damages. NDCC § 32-15-13.

2 . The fact that we are dismissing this appeal for lack of jurisdiction is not meant to reflect negatively on the validity of Landowners’ substantive issues on appeal. See Williams Co. v. Hamilton, 427 N.W.2d 822 (N.D.1988). The issues raised by Landowners may have serious consequences. If the granting of partial summary judgment by the trial court is later determined to have been improper, the merits of Landowners’ use and necessity claim will need to be determined. NDCC § 32-15-05. If Landowners are able to establish that material facts were in dispute, or the inferences to be drawn from undisputed facts existed, summary judgment on the issue of use and necessily was improper. E.g., Adams v. Canterra Petroleum, Inc., 439 N.W.2d 540, 542 (N.D.1989); N.D.R.Civ.P. Rule 56. "On appeal from a summary judgment the evidence is viewed in a light most favorable to the party against whom the summaiy judgment was granted.” Adams, 439 N.W.2d at 542. Although historically condemnors have been very successful in establishing use and necessity in eminent domain proceedings, see e.g., KEM Elec. Coop., Inc. v. Maten, 247 N.W.2d 668, 670 (N.D.1976) (condem-nors in eminent domain proceedings given great latitude in both the selection and location of routes to be taken, and in the taking of particular property), this fact alone does not justify granting summary judgment on the issues of use and necessity, see id. (trial on the merits).

When contested, necessity is generally found unless the condemnor acted arbitrarily, capriciously, in bad faith, or fraudulently. Oakes Mun. Airport Auth. v. Wiese, 265 N.W.2d 697, 700 (N.D.1978), rek'e denied; KEM, 247 N.W.2d at 672. In turn, these determinations are made by looking at whether the route selection is compatible with the greatest public benefit, and the least private injury. KEM, 247 N.W.2d at 668. See generally 1A Nichols, Eminent Domain § 4.11 (3d ed.); Eminent Domain: Review of Electric Power Company's Location of Transmission Line for Which Condemnation is Sought, 19 ALR4th 1026 (1983 & Supp.). While we have said before that "landowner[s] may not object merely because some other location might have, been made or some other property obtained that would have been as suitable for the purpose,” KEM, 247 N.W.2d at 671, citing to Otter Tail Power Co. v. Malme, 92 N.W.2d 514, 521 (N.D.1958) (emphasis ours), we have not held that this proposition stands when the property chosen for the route is less suitable. In light of the growing body of case law in the area of electromagnetic fields, see 8A Nichols, Eminent Domain ch. 26 (3d ed.), Landowners in this case may have a valid argument that alternate routes benefit the public with less private injury. Because this appeal is dismissed, our discussion regarding the issue of necessity is mere speculation; it will be dealt with at a later date should an appeal arise from the final judgment.

3 . The portion of our constitution addressing quick take states:

“Section 16. Private property shall not be taken or damaged for public use without just compensation having been first made to, or paid into court for the owner.... No right of way shall be appropriated to the use of any corporation until full compensation therefor be first made in money or ascertained and paid into court for the owner.... Compensation shall be ascertained by a jury, unless a jury be waived. When the state or any of its departments, agencies or political subdivisions seeks to acquire right of way, it may take possession upon making an offer to purchase and by depositing the amount of such offer with the clerk of the district court of the county wherein the right of way is located.”

N.D. Const, art. I, § 16.