Boutrous v. Transform Operating Stores

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
JUNE 3, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 100Ted J. Boutrous, L.L.C. and The Boutrous
Group, LLP, Plaintiffs and Appellees
v.
Transform Operating Stores, LLC d/b/a
Transformco Operating Stores LLC; Transform
SR Brands LLC d/b/a Transformco d/b/a Kmart;
and Transform KM LLC, Defendants and Appellants
No. 20210115
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Bobbi B. Weiler, Judge.
DISMISSED.
Opinion of the Court by McEvers, Justice, in which Chief Justice Jensen,
Justice VandeWalle, Crothers, and Tufte joined. Chief Justice Jensen filed an
opinion concurring specially.
Bradley N. Wiederholt (argued) and Randall J. Bakke (on brief), Bismarck,
ND, for plaintiffs and appellees.
Ryan C. McCamy, Fargo, ND, for defendants and appellants.
Boutrous v. Transform Operating Stores
No. 20210115
McEvers, Justice.
[¶1] Ted J. Boutrous, L.L.C. and The Boutrous Group, LLP (“Plaintiffs”) move
to dismiss the appeal brought by Transform Operating Stores, LLC d/b/a
Transformco Operating Stores LLC; Transform SR Brands LLC d/b/a
Transformco d/b/a Kmart; and Transform KM LLC (“Defendants”). The
Plaintiffs argue the Defendants did not appeal from a final judgment or order.
We dismiss the appeal.
I
[¶2] The Plaintiffs commenced this summary eviction action to evict the
Defendants from the Bismarck Kmart building and parking lot, and to recover
damages. The district court notified the parties that it would only be
addressing the right of possession at the eviction hearing, not damages. The
Defendants moved to dismiss for lack of subject matter jurisdiction. The court
ordered the eviction hearing to go forward and reiterated that the matter of
damages would be scheduled at a later date.
[¶3] After the eviction hearing, the district court concluded the Plaintiffs are
entitled to possession of the property, ordered the Defendants to vacate, and
reserved the issue of damages “until a full hearing is held.” The court entered
judgment in accordance with its order. The Defendants moved for
reconsideration, which was denied by the court. The court entered an amended
judgment, modifying the date of surrender. The Defendants appealed.
II
[¶4] The Plaintiffs move under N.D.R.App.P. 27 to dismiss the appeal,
asserting the Defendants did not appeal from a final judgment or order. “The
right to appeal is governed by statute and, absent a statutory basis for the
appeal, we must dismiss the appeal.” Presswood v. Runyan, 2020 ND 8, ¶ 6,
937 N.W.2d 279. Section 28-27-01, N.D.C.C., provides, “A judgment or order in
a civil action or in a special proceeding in any of the district courts may be
1
removed to the supreme court by appeal as provided in this chapter.” “Only
judgments and decrees which constitute a final judgment of the rights of the
parties and certain orders enumerated by statute are appealable.” Gasic v.
Bosworth, 2014 ND 85, ¶ 4, 845 N.W.2d 306. Under N.D.R.Civ.P. 54(b), a
judgment, to be final, must dispose of all claims or the court must direct entry
of a final partial judgment:
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.
N.D.R.Civ.P. 54(b); see also Gasic, at ¶ 5.
[¶5] Section 47-32-04, N.D.C.C., provides in part:
An action of eviction cannot be brought in a district court in
connection with any other action, except for rents and profits
accrued or for damages arising by reason of the defendant’s
possession. No counterclaim can be interposed in such action,
except as a setoff to a demand made for damages or for rents and
profits. If the court finds for the plaintiff in the action, the court
shall enter judgment that the plaintiff have immediate restitution
of the premises.
In Gasic, we held that based on the district court’s failure to address the
counterclaim in its order of eviction and reference to a future hearing in its
stay of eviction, the court did not intend the order of eviction to be a final order
or judgment, and we dismissed the appeal. 2014 ND 85, ¶¶ 12-13.
[¶6] The Plaintiffs brought an action of eviction under N.D.C.C. ch. 47-32 and
sought damages. The district court ruled on the eviction claim, but failed to
2
rule on damages. Thus, the court adjudicated fewer than all of the claims. The
Defendants did not seek Rule 54(b) certification from the court. See Greer v.
Global Indus., Inc., 2018 ND 206, ¶ 10, 917 N.W.2d 1 (stating that “[w]e will
not consider an appeal in a multi-claim or multi-party case which disposes of
fewer than all claims against all parties unless the [district] court has first
independently assessed the case and determined that a Rule 54(b) certification
is appropriate”). A judgment or order of eviction is not final unless all of the
claims brought pursuant to N.D.C.C. ch. 47-32 are adjudicated, or the district
court certifies the judgment as final under N.D.R.Civ.P. 54(b). We caution that
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, after first weighing
the competing equities involved and taking into account judicial
administrative interests. See Capps v. Weflen, 2013 ND 16, ¶ 7, 826 N.W.2d
605. Accordingly, we conclude that none of the orders or judgments appealed
from are final, and we dismiss the appeal.
III
[¶7] The appeal is dismissed.
[¶8] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
3
Jensen, Chief Justice, concurring specially.
[¶9] I agree with, and have joined, the majority opinion. I write separately to
note my concern regarding the procedure adopted by the district court,
bifurcating the eviction proceedings from the determination of damages.
Unanswered by this case is whether bifurcation is permissible and, if
permissible, whether the two separate proceedings must be held within the
time period established by N.D.C.C. § 47-32-02.
[¶10] The majority opinion noted the following regarding the proceedings in
the district court:
The district court notified the parties that it would only be
addressing the right of possession at the eviction hearing, not
damages. The Defendants moved to dismiss for lack of subject
matter jurisdiction. The court ordered the eviction hearing to go
forward and reiterated that the matter of damages would be
scheduled at a later date.
Majority opinion, ¶ 2. It is unclear from the record how long the resolution of
the claim for damages was delayed.
[¶11] The time for the hearing in summary eviction proceedings is set by
N.D.C.C. § 47-32-02 which provides, in part, as follows:
In any action for eviction the time specified in the summons for the
appearance of the defendant may not be fewer than three nor more
than fifteen days from the date on which the summons is issued.
Additionally, if the district court determines eviction is an appropriate remedy,
“the court shall enter judgment that the plaintiff have immediate restitution
of the premises.” N.D.C.C. § 47-32-04.
[¶12] The questions that were not raised by the parties in this action were
whether the district court can bifurcate the eviction proceedings from the claim
for damages, and if bifurcation is permissible, whether the entire action must
be concluded within the time period set by N.D.C.C. § 47-32-02. My concern is
that our law provides that “[i]f the court finds for the plaintiff in the action, the
4
court shall enter judgment that the plaintiff have immediate restitution of the
premises.” N.D.C.C. § 47-32-04. The holding in this case provides that in
bifurcated proceedings the initial judgment allowing immediate restitution of
the premises is not appealable. While the district court has discretion to stay
the restitution of the premises, a stay is statutorily limited to five days.
N.D.C.C. § 47-32-04. As such, substantial delay in the resolution of the damage
claim has the potential to also delay an appeal of the initial eviction
determination, despite the fact that restitution of the premises has already
been reduced to a “judgment” with a statutorily limited period the judgment
can be stayed.
[¶13] The majority opinion properly does not address issues not raised by the
parties. This separate is not intended to express how those unraised issues
should be resolved, but is intended to note the potential issues associated with
the bifurcation of summary eviction proceedings.
[¶14] Jon J. Jensen, C.J.
5