Wyatt v. Adams

551 N.W.2d 775, 1996 N.D. LEXIS 161, 1996 WL 355342

• Court: North Dakota Supreme Court
• Decided: June 27, 1996
• Docket: Civil 960020
• Status: Published

Opinions

NEUMANN, Justice.

Donald Wyatt appealed from a district court judgment dismissing Grand Forks Welding and Machine Company as a party defendant in Wyatt’s action to recover damages for injuries sustained by him when he fell from a ladder. We conclude that the trial court improvidently certified the judgment as final under Rule 54(b), N.D.R.Civ.P., and we dismiss the appeal.

Wyatt was seriously injured in December 1987 when he fell from a ladder owned by Ardell Adams, the father of Wyatt’s former spouse, while using the ladder at Adams’ home. Wyatt sued Adams for damages. Wyatt later joined as defendants R.D. Wer-ner Company, the ladder’s manufacturer, and Grand Forks Welding, whom Wyatt discovered had performed welding repairs on the ladder prior to the accident. Wyatt settled with R.D. Werner Company, who was then dismissed from the case. Upon motion, the district court also dismissed Grand Forks Welding as a party defendant on the ground the statute of limitations had run on Wyatt’s claim against Grand Forks Welding.

Upon Grand Forks Welding’s request, the district court certified the dismissal as a final judgment under Rule 54(b), N.D.R.Civ.P. Wyatt was then forced to file an immediate appeal to preserve his argument that the district court wrongly decided the statute of limitations had run on Wyatt’s claim against Grand Forks Welding and erred in dismissing Grand Forks Welding from the case.

Under Rule 54(b), N.D.R.Civ.P., a trial court “may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” The burden is upon the party requesting Rule 54(b) certification to show extraordinary circumstances or that cognizable, unusual hardship to the litigants will arise if resolution of the issues on appeal is deferred. Bjornson v. Guaranty National Ins. Co., 510 N.W.2d 622 (N.D.1994). In determining whether to issue a Rule 54(b) certification, the trial court must consider our longstanding policy against piecemeal appeals. Bulman v. Hulstrand Constr. Co., Inc., 503 N.W.2d 240 (N.D.1993). We are not bound by a trial court’s determination, and we will review a Rule 54(b) certification to determine if the court abused its discretion. Gessner v. City of Minot, 529 N.W.2d 868 (N.D.1995). The purpose of our review is to determine whether the case presents an “infrequent harsh case” warranting the extraordinary remedy of an otherwise interlocutory appeal. Gissel v. Kenmare Township, 479 N.W.2d 876, 877 (N.D.1992).

Grand Forks Welding has not demonstrated hardship or prejudice would result in this case without certification. The possibility that a second trial may be avoided is not a sufficient reason for granting a Rule 54(b) certification, absent unusual and compelling circumstances. Imperial Oil v. Hanson, 510 N.W.2d 598 (N.D.1994). Wyatt’s action against Adams is pending. Wyatt and Grand Forks Welding concede the outcome of that litigation could potentially result in Wyatt’s claim against Grand Forks Welding becoming moot. For example, if the factfin-der concludes Wyatt is more than 50 percent at fault for the accident or if it determines Adams is 100 percent at fault, Wyatt’s claim against Grand Forks Welding becomes moot. We have held on numerous occasions that potential mootness is a just reason for delay in entering a final judgment, making it inappropriate to enter a Rule 54(b) certification. Ingalls v. Glass Unlimited, Inc., 529 N.W.2d 872 (N.D.1995); Gessner v. City of Minot, 529 N.W.2d 868 (N.D.1995); Imperial Oil v. Hanson, 510 N.W.2d 598 (N.D.1994); Bulman v. Hulstrand Construction Co., Inc., 503 N.W.2d 240 (N.D.1993). Rule 54(b) certification is inconsistent with the appropriate exercise of sound discretion when there is a possibility that the need for review may be mooted by future developments in the district court. Bulman, supra, 503 N.W.2d at 242.

Under these circumstances, we conclude the trial court abused its discretion in granting the Rule 54(b) certification. Accordingly, we dismiss the appeal, and we direct that costs on appeal be assessed against Grand Forks Welding and in favor of the appellant.

APPEAL DISMISSED.

VANDE WALLE, C.J., and SANDSTROM and MESCHKE, JJ., concur.