City of West Fargo v. McAllister , 2021 ND 136 ( 2021 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
JULY 22, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 136City of West Fargo, a political subdivision
of the State of North Dakota, Plaintiff and Appellee
v.
Mark Alexander McAllister Defendant and Appellant
and
Alerus Financial, N.A.; and all other
persons unknown claiming an estate
or interest in or lien or encumbrance
upon the real property described in
the Complaint, whether as heirs,
devisees, personal representatives,
creditors or otherwise, Defendants
No. 20200324
Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Susan L. Bailey, Judge.
DISMISSED.
Opinion of the Court by VandeWalle, Justice.
Christopher M. McShane, West Fargo, ND, for plaintiff and appellee.
Jonathan T. Garaas, Fargo, ND, for defendant and appellant.
City of West Fargo v. McAllister
No. 20200324
VandeWalle, Justice.
[¶1] Mark McAllister appealed from a judgment allowing the City of West
Fargo to use its quick-take eminent domain power to acquire a right of way
across his property. Because we conclude that the district court
inappropriately granted the N.D.R.Civ.P. 54(b) order certifying the judgment
as final, we dismiss the appeal.
I
[¶2] In August 2017, West Fargo passed a resolution determining it was
necessary to construct a sewer improvement project. The project consisted of
the design and installation of two sewer pipes between West Fargo and Fargo.
To complete the project, West Fargo had to acquire a right of way across certain
private property, including McAllister’s.
[¶3] West Fargo sued McAllister, seeking to use its quick-take eminent
domain power to acquire immediate possession of a right of way across
McAllister’s property. West Fargo appraised the compensation for the property
rights obtained on McAllister’s property at $36,000 and deposited that amount
with the clerk of court. McAllister resisted, arguing West Fargo was prohibited
from taking immediate possession of a right of way across his property. After
an evidentiary hearing, the district court concluded West Fargo was entitled
to take immediate possession of a right of way across McAllister’s property.
[¶4] Before the trial on the issue of McAllister’s just compensation, West
Fargo moved to exclude testimony that the taking caused McAllister’s property
to become nonconforming under West Fargo City Ordinances based on front
yard setback requirements. The district court granted the motion, concluding
as a matter of law that the easement obtained by West Fargo had no effect on
the front yard setback requirements under the West Fargo City Ordinances
and ordered that testimony relating to that issue would be excluded at trial.
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[¶5] The parties stipulated to the entry of a condemnation judgment in favor
of West Fargo. West Fargo agreed to pay McAllister $36,000; however, the
determination of McAllister’s costs and disbursements, including attorney’s
fees and appraisal expenses, was reserved for a later date. The parties also
stipulated to the entry of an order certifying the condemnation judgment as
final under N.D.R.Civ.P. 54(b). The district court entered a condemnation
judgment and certified the judgment as final under Rule 54(b).
II
[¶6] Before reaching the merits of McAllister’s appeal, we consider whether
the district court appropriately ordered entry of a final judgment under
N.D.R.Civ.P. 54(b) before the determination of McAllister’s costs and
disbursements. We review a district court’s decision to grant N.D.R.Civ.P.
54(b) certification under an abuse-of-discretion standard. Capps v. Weflen,
2013 ND 16, ¶ 6, 826 N.W.2d 605. A court abuses its discretion when it acts in
an arbitrary, unreasonable, or unconscionable manner, when its decision is not
the product of a rational mental process leading to a reasoned determination,
or when it misinterprets or misapplies the law. Id.[¶7] Rule 54(b), N.D.R.Civ.P., preserves our long-standing policy against
piecemeal appeals, and provides:
If an action presents more than one claim for relief, whether as a
claim, counterclaim, crossclaim, or third-party claim, or if multiple
parties are involved, the court may direct entry of a final judgment
as to one or more, but fewer than all, claims or parties only if the
court expressly determines that there is no just reason for delay.
Otherwise, any order or other decision, however designated, that
adjudicates fewer than all the claims or the rights and liabilities of
fewer than all the parties does not end the action as to any of the
claims or parties and may be revised at any time before the entry
of a judgment adjudicating all the claims and all the parties’ rights
and liabilities.
[¶8] The district court should consider the following factors articulated by
this Court when deciding a request for Rule 54(b) certification:
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(1) the relationship between the adjudicated and unadjudicated
claims; (2) the possibility that the need for review might or might
not be mooted by future developments in the district court; (3) the
possibility that the reviewing court might be obliged to consider
the same issue a second time; (4) the presence or absence of a claim
or counterclaim which could result in setoff against the judgment
sought to be made final; (5) miscellaneous factors such as delay,
economic and solvency considerations, shortening the time of trial,
frivolity of competing claims, expense, and the like.
Capps, 2013 ND 16, ¶ 8 (quoting Pifer v. McDermott, 2012 ND 90, ¶ 10, 816
N.W.2d 88). “A N.D.R.Civ.P. 54(b) certification should not be routinely granted
and is reserved for cases involving unusual circumstances where failure to
allow an immediate appeal would create a demonstrated prejudice or
hardship.” Capps, at ¶ 7.
[¶9] The district court’s Rule 54(b) order states:
[T]here is “no just reason for delay” in issuance of said final
judgment as to the taking . . . and that the separate claim for
Defendant’s costs and disbursements, to include reasonable
attorney’s fees and appraisal fees should be postponed until after
the contemplated appeal because the proper amount cannot be
determined until final resolution of legal and factual issues
presented by (a) the appeal and/or (b) any subsequent trial should
Defendant Mark McAllister prevail on appeal.
[¶10] Both parties assert the district court properly granted Rule 54(b)
certification because the only issue left to be decided is McAllister’s costs and
disbursements. They assert there was no just reason for delay and Rule 54(b)
certification saved judicial resources. We disagree.
[¶11] A proper exercise of the district court’s discretion under Rule 54(b)
requires more than mere recital of the language of the Rule, and . . . the court
should articulate in writing the reasons supporting its decision. Capps, 2013
ND 16, ¶ 9. Here, other than stating there was “no just reason for delay,” the
court provided no analysis of the Rule 54(b) factors. None of the parties, nor
the court, have demonstrated how this is not a standard interlocutory appeal.
See Capps, at ¶ 10.
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[¶12] In Holverson v. Lundberg, 2015 ND 225, ¶¶ 10-11, 869 N.W.2d 146, we
dismissed an appeal where the amount of attorney’s fees awarded to the
plaintiff was left undecided. In this case, McAllister’s costs and disbursements,
including reasonable attorney’s fees, have been left undecided. As in Holverson,
at ¶ 10, “[t]he unadjudicated determination of reasonable attorney fees leaves
open the potential for more litigation between the parties and another appeal.”
[¶13] We conclude the district court abused its discretion by inappropriately
certifying the condemnation judgment as final under N.D.R.Civ.P. 54(b). Thus,
we do not reach the merits of McAllister’s appeal.
III
[¶14] We dismiss the appeal.
[¶15] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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