Sickler v. Kirkwood

1997 ND 40, 560 N.W.2d 532, 1997 N.D. LEXIS 58, 1997 WL 125725

• Court: North Dakota Supreme Court
• Decided: March 20, 1997
• Docket: Civil 960226
• Status: Published

Opinions

SANDSTROM, Justice.

[¶ 1] William Kirkwood and Wesco Operating, Inc., appeal from a partial summary judgment determining an oil and gas lease terminated when oil was not produced under the lease for periods exceeding sixty days. We dismiss the appeal, concluding the trial court abused its discretion in certifying tbe partial summary judgment as final under N.D.R.Civ.P. 54(b).

I

[¶ 2] In 1982, Norbert and Loretta Siekler leased mineral interests to Spectrum Resources, Inc. Kirkwood is an assignee of Spectrum’s interest in the lease. The lease provides it terminates if production of oil or gas ceases for any cause, and the lessee fails to commence additional drilling or reworking operations within sixty days thereafter.

[¶ 3] The Sicklers brought this action to declare the lease terminated for lack of production. The trial court granted the Sick-lers’ motion for partial summary judgment on the issue of termination of the lease, and reserved for trial the issues of damages and attorneys’ fees. The Sicklers’ motion to amend the complaint to add a cause of action for fraud, including punitive damages, is also pending in the trial court. The trial court certified the partial summary judgment'' as final under N.D.R.Civ.P. 54(b), and Kirkwood and Wesco appealed.

II

[¶ 4] Rule 54(b), N.D.R.Civ.P., authorizes entry of a final judgment adjudicating fewer than all claims of all parties upon an “express determination that there is no just reason for delay.” The party requesting Rule 54(b) certification must demonstrate extraordinary circumstances are present or unusual hardship to the litigants will arise if resolution of the issues on appeal is deferred. Wyatt v. Adams, 551 N.W.2d 775, 777 (N.D. 1996).

[¶ 5] We are not bound by the trial court’s determination, but will sua sponte review a Rule 54(b) certification to determine if the court abused its discretion. Vanover v. Kansas City Life Insurance Co., 535 N.W.2d 424, 426 (N.D.1995); Gessner v. City of Minot, 529 N.W.2d 868, 870 (N.D.1995). Our review of a Rule 54(b) certification is to determine whether the case presents an “infrequent harsh case” warranting the extraordinary remedy of an otherwise interlocutory appeal. Gessner, 529 N.W.2d at 870. We have no authority to render advisory opinions, and Rule 54(b) was not intended to circumvent that restriction but rather to preserve our long-standing policy against piecemeal appeals. Gessner, 529 N.W.2d at 870; Bjomson v. Guaranty National Insurance Co., 510 N.W.2d 622, 624 (N.D.1994).

[¶ 6] In this case, no party requested Rule 54(b) certification, there was no hearing on the issue, and no party demonstrated extraordinary circumstances or cognizable, unusual hardship. See Wyatt, 551 N.W.2d at 777; Bjornson, 510 N.W.2d at 623-624. The trial court did not articulate any reason compelling finality of the judgment, other than parroting the language of Rule 54(b) by finding there was “no just reason for delay.”

[¶ 7] The trial court must delineate unusual or compelling circumstances justifying Rule 54(b) certification. Bjornson, 510 N.W.2d at 624. Because the trial court failed to do so, and because no compelling circumstances are apparent on the record, we conclude the trial court abused its discretion in granting Rule 54(b) certification.

Ill

[¶ 8] The appeal is dismissed. Costs on appeal are assessed against the Sicklers.

[¶ 9] VANDE WALLE, C.J., and MESCHKE and NEUMANN, JJ., concur.