Copenhaver v. Geier

508 N.W.2d 877, 1993 N.D. LEXIS 228, 1993 WL 494658

• Court: North Dakota Supreme Court
• Decided: December 2, 1993
• Docket: Civ. 930140
• Status: Published

Opinions

VANDE WALLE, Chief Justice.

Rick John Geier, M.D., appealed from a district court order changing venue from Foster County to Stutsman County. We dismiss the appeal.

Pamela and Patrick Copenhaver filed a medical malpractice action against Geier in Grand Forks County. The parties stipulated to a change of venue to Foster County, which is the county in which Geier and the Copen-havers reside.

The Copenhavers moved to transfer venue from Foster County to Stutsman County “on the grounds that there is reason to believe that an impartial trial cannot be had in Foster County and that the ends of justice will be promoted by a change in venue.” See § 28-04-07, N.D.C.C. At a hearing on the motion, the trial court considered briefs and affidavits, responses to questionnaires sent to potential jurors, and the clerk of court’s report that he had sent out 260 juror questionnaires and issued 150 summonses and that “his phone has been ringing off its hook yesterday and today, people that don’t want to come in.”

An order granting a motion for a change of venue requires certification under Rule 54(b), N.D.R.Civ.P., to invoke this court’s interlocutory appellate jurisdiction. Slaubaugh v. Slaubaugh, 499 N.W.2d 99 (N.D.1993). “Absent unusual and compelling circumstances, the hope that immediate appellate review might avoid the chance of two trials is not a sufficient reason for granting Rule 54(b) certification.” Id. at 104-05. A party requesting Rule 54(b) certification must demonstrate that “it will suffer hardship or unusual prejudice if certification is denied.” Id. at 105.

Unusual and compelling circumstances in Slaubaugh justified immediate review of the order changing venue. The accident resulting in the plaintiffs serious injury had occurred seven years earlier. There had already been one trial, followed by an appeal. Slaubaugh v. Slaubaugh, 466 N.W.2d 573 (N.D.1991). A second trial was pending as a result of the appeal. A third trial was possible if we rejected review of the order changing venue. The propriety of a change of venue was before us for the second time. We said: “Our prior decision instructing the district court to consider the issue of venue on remand, combined with the possibility we may be required to review this question again, tips the balance in favor of appellate review.” Id. at 105.

No such unusual and compelling circumstances exist in this case, which has not yet reached the voir dire stage. None of the parties demonstrated that any hardship or unusual prejudice would be suffered if Rule 54(b) certification were denied and review postponed. We, therefore, conclude that Rule 54(b) certification was improvidently granted.

Appeal dismissed.

SANDSTROM and LEVINE, JJ., concur.