Regstad v. Steffes , 1988 N.D. LEXIS 239 ( 1988 )

VANDE WALLE, Justice.

Edward H. Steffes and Steffes Farm Group (hereinafter collectively referred to as Steffes) appealed from a partial summary judgment quieting title in Lowell D. Regstad and R.A. Kost (hereinafter collectively referred to as Regstad) to land which had been forfeited for nonpayment of taxes. Because no order comporting with Rule 54(b), N.D.R.Civ.P., was entered, we dismiss the appeal.¹

Steffes owned lots in the city of Fargo. Cass County acquired title to the lots by tax deeds. In January 1987 Cass County informed Fargo that it could purchase the lots for $1.00 per lot if Fargo sent a letter to Cass County authorizing the County to cancel all special assessments on the property. The notice also specified there would be a 30-day waiting period before the deed could be issued as the county auditor “is required to give notice to the former owner.” On February 18, 1987, Fargo notified Cass County that it wished to purchase the lots and directed the County to cancel all 1986 and prior-year special assessments on the lots. The Cass County auditor notified Steffes of a 30-day period within which to redeem by paying the delinquent taxes, penalties, and interest. Steffes did not redeem and Fargo received deeds to the lots which were recorded between March 26 and April 7, 1987. Fargo publicly advertised the lots for sale on April 26 and April 29, requesting sealed proposals by May 4. Regstad purchased the lots from Fargo on May 4, 1987, and received a quitclaim deed from the County.

Regstad brought an action to quiet title to the property naming Steffes as parties. Steffes answered the complaint and filed a third-party complaint against Fargo and Cass County for damages if Regstad succeeded in the quiet-title action. Fargo and Cass County answered the third-party complaint and Fargo counterclaimed against Steffes seeking contractual indemnification for losses from nonpayment of the special assessments. The trial court granted Reg-stad’s motion for summary judgment quieting title to the property in Regstad, ordered summary judgment in favor of Fargo and Cass County on the third-party complaint, and denied Steffes’s motion for summary judgment on the counterclaim. Fargo’s counterclaim against Steffes thus was not resolved by the partial summary judgment.

Rule 54(b), N.D.R.Civ.P., provides:

“If more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or if multiple parties are involved, the 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. In the absence of that determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties does not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.” [Emphasis supplied.]

It is apparent from the wording of the rule that, in the absence of the express determination that there is no just reason for delay and an express direction for the entry of judgment, there is no final judgment. This court has long held that no appeal lies from a judgment that is interlocutory and not final. E.g., Anderson v. Bothum, 77 N.D. 678, 45 N.W.2d 488 (N.D.1950). We have recently reiterated that holding where partial summary judgment left an unresolved counterclaim and no order or expression complying with Rule 54(b) was entered by the trial court. Gillmore v. Morelli, 425 N.W.2d 369 (N.D.1988). Although the parties may not have questioned the appealability of the judgment, we must dismiss an appeal on our own motion if we conclude that it fails to grant jurisdiction. Id.

The purpose of Rule 54(b) is to deter piecemeal disposal of litigation. Gillan v. Saffell, 395 N.W.2d 148 (N.D.1986). In Union State Bank v. Woell, 357 N.W.2d 234, 238-239 (N.D.1984), Justice Sand, writing for the court, examined in depth Rule 54(b) certifications and observed:

“The claims raised in the main action and counterclaim arose from the same series of transactions and occurrences, are logically related legally and factually, and are closely intertwined. [Citations omitted.] It is likely that an appeal will be taken after the unadjudicated counterclaim is decided, which would involve the same factual situation as the present appeal.” [Citations omitted.]

Justice Sand further noted, at page 239 of the reported case, that there “were no unusual or compelling circumstances presented to the court which dictated immediate entry of a separate judgment.”²

At oral argument Steffes urged that we not dismiss the appeal because the judgment contains an injunction which brings it within the purview of Section 28-27-02(3), N.D.C.C., and therefore is appeal-able without a Rule 54(b) order. Section 28-27-02(3) provides:

“The following orders when made by the court may be carried to the supreme court:

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“3. An order which grants, ... an injunction ...”

Assuming, without deciding, that an order granting an injunction may be appealed without regard to Rule 54(b),³ we do not believe this would be an appropriate case in which to apply such an exception. To justify the appeal Steffes seizes upon “boilerplate” language in the judgment quieting title stating that the defendants are “debarred and enjoined forever from asserting any estate or interest in, or lien or encumbrance upon, in or to said real property or any part thereof, ...” No such language is found in the order for judgment signed by the trial judge. It appears only in the judgment signed by the clerk of court.

Presumably it was included in the judgment because similar language was included in the complaint as a result of the requirements of Section 32-17-04, N.D.C.C., providing that in an action for the determination of adverse claims, the complaint “may be substantially in the following form, ...

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“3. That this title be quieted as to such claim, and that defendants be forever debarred and enjoined from further asserting the same.”

But the judgment already contains language that the plaintiffs “are the owners in fee simple” of the property and that the defendants “have no estate or interest in, or lien or encumbrance upon the real property.” We have no problem discerning the intent and effect of the judgment without the statutory injunctive language, yet if that language were not in the judgment it clearly would not be appealable without a Rule 54(b) certification. Furthermore, the judgment states that “the Plaintiffs are in possession of the real estate.” Thus the injunctive language serves no active purpose, and it is too facile to include injunc-tive language which serves no real purpose in a judgment to make appealable a judgment that otherwise would not be appeal-able because of Rule 54(b).

A noted authority has observed with regard to 28 U.S.C. § 1292(a)(1), which is similar to Section 28-27-02(3), N.D.C.C., that “the enumerated orders [interlocutory orders granting injunctions] are likely to be so important to the parties that an immediate appeal should lie even though the district court still may have one or more closely related questions before it.” 10 Wright, Miller & Kane, Federal Practice and Procedure, Civil 2d, § 2658.1, pp. 73-74. The statutory injunctive language in this instance does not rise to such an order. The judgment effectively quiets the title in the plaintiffs without such language; a counterclaim remains to be tried and a Rule 54(b) certification, if indeed such an order would be justified in this instance, is necessary to a valid appeal.

The appeal is dismissed.

ERICKSTAD, C.J., and GIERKE and LEVINE, JJ., concur.

1 . On appeal Steffes raised issues concerning their right to purchase beyond their redemption rights and defects in the notice to them of their right to redeem. Because we dismiss the appeal we do not reach those issues.

2 . In Union State Bank v. Woell, 357 N.W.2d 234 (N.D.1984), the order for judgment contained a Rule 54(b) certification that there was no just reason for delay of entry of final judgment. We determined that the Rule 54(b) certification was improvidently granted and dismissed the appeal without reaching the merits. Because it does not appear that unusual or compelling circumstances dictate immediate entry of a separate judgment, we have not remanded pursuant to Rule 35(b), N.D.R.App.P., so that the trial court might consider the propriety of a Rule 54(b) order. See Courchene v. Delaney Distributors, Inc., 418 N.W.2d 781 (N.D.1988).

3 . In Gillan v. Saffell, 395 N.W.2d 148 (N.D.1986), we observed that Rule 54(b) does not supersede statutes such as Section 28-27-02 which control the appellate jurisdiction of this court. We further noted that the judgment from which the appeal is attempted to be taken must come within the purview of Section 28-27-02 and, once that hurdle is cleared, if Rule 54(b) is applicable that rule’s separate requirements must be met. In Gillan the appeal arose out of the denial of a motion for partial summa-s ry judgment which is not appealable under Section 28-27-02 although a Rule 54(b) order had been entered.