ORDER
Counsel
for Appellant, Lincoln Properties, LLC (Lincoln), has filed a
notice of appeal from two orders of the First Judicial
District Court, Lewis and Clark County: (1) Order on
Cross-Motions for Summary Judgment; and (2) Order on Motion
to Correct Judgment. On June 14, 2019, the District Court
certified these orders as final for purposes of immediate
appeal pursuant to M. R. Civ. P. 54(b).
Appellee,
American Equity Exchange, Inc. (AEEI) objected to Rule 54(b)
certification. AEEI argued that the District Court should
deny certification because several of Lincoln's causes of
action are asserted against all defendants and rely upon
common overlapping facts, and none of Lincoln's claims
applied solely to AEEI; however, the District Court's
summary judgment order pertained only to Lincoln's claims
against AEEI, thus leaving unresolved multiple claims against
multiple other defendants. AEEI argued that any appellate
review of the current ruling resolving claims in AEEI's
favor will likely be mooted by adjudication of the remaining
claims against the remaining defendants, and thus would avoid
requiring this Court to review the same issues a second time.
The
District Court rejected AEEI's argument. It concluded
that the claim on which it granted summary judgment in favor
of AEEI was "singular to AEEI and has no
'overlap' with the breach of contract, negligence,
and misrepresentation claims advanced against
Faulkner."[1] The District Court thus concluded that
"it is not possible that the stand alone claims made
against AEEI will have to be considered in the future."
Pursuant
to M. R. App. P. 4(4)(b), we have reviewed the District
Court's June 14 order for compliance with M. R. App. P.
6(6). Rule 6(6) provides that a district court may direct
entry of final judgment under Rule 54(b) only upon an express
determination that there is no just reason for delay and,
"[i]n so doing, the district court must balance the
competing factors present in the case to determine if it is
in the interest of sound judicial administration and public
policy to certify the judgment as final, and the court shall,
in accordance with existing case law, articulate in its
certification order the factors upon which it relied in
granting certification . . . ."
If a
district court abuses its discretion in certifying an order
as final under Rule 54(b), we are without jurisdiction to
entertain the appeal. Kohler v. Croonenberghs, 2003
MT 260, 317 Mont. 413, 77 P.3d 531. Thus, even if not raised
by a party, we will sua sponte determine if the
court's certification order meets the criteria we have
set forth in Roy v. Neibauer, 188 Mont. 81, 610 P.2d
1185 (1980), and Weinstein v. University of Montana,
271 Mont. 435, 898 P.2d 101 (1995). Kohler,
¶¶ 8-9.
To meet
these criteria, the District Court must do more than
"merely recite the magic words" that "there is
no just reason for delay." Kohler, ¶ 14
(citation omitted). As set forth in Roy, 188 Mont,
at 87, 610 P.2d at 1189, the factors this Court normally
considers regarding a Rule 54(b) certification include: (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 a set-off against the judgment sought to be made
final; and (5) miscellaneous factors such as delay, economic
and solvency considerations, shortening the time of trial,
triviality of computing claims, expense, and the like. In
certifying an order under Rule 54(b), a district court must
follow three "guiding principles": (1) the burden
is on the party seeking certification to convince the
district court that the case is the "infrequent harsh
case" meriting a favorable exercise of discretion; (2)
the district court must balance the competing factors present
in the case to determine if it is in the interest of sound
judicial administration and public policy to certify the
judgment as final; and (3) the district court must marshal
and articulate the factors upon which it relied in granting
certification so that prompt and effective review can be
facilitated. Kohler, ¶ 16 (citing Roy,
188 Mont, at 87, 610 P.2d at 1189).
In
Kohler, we reversed the District Court's Rule
54(b) certification because it failed to discuss
Roy's factors and guiding principles, but was
merely a "perfunctory certification."
Kohler, ¶ 17. The District Court in
Kohler also did not address the concerns raised in
Weinstein that "the facts and theories
separated for immediate appeal should not overlap with those
retained; to the extent they do, the court of appeals is
'deciding' claims still pending in the district
court, and may have to cover the same ground when the
district court acts on the residue." Kohler,
¶ 18 (quoting Weinstein, 271 Mont, at 442, 898
P.2d at 105).
In this
instance, AEEI raised the concern of overlapping claims in
its objection to Rule 54(b) certification below. AEEI noted
that several of Lincoln's causes of action were asserted
against all defendants and relied upon common overlapping
facts, and that none of Lincoln's claims applied solely
to AEEI. The District Court granted certification on the
basis that Lincoln's claim was singular to AEEI, and did
not overlap with the claims against one of the remaining
defendants. The District Court did not address the impact of
its summary judgment order as it pertained to the multiple
common claims against the other multiple defendants, nor did
it discuss Roy's factors and guiding principles,
or articulate the basis of its determination that there is no
just reason for delay as set forth in M. R. App. P. 6(6).
For
these reasons, we conclude the court's certification
order is not in substantial compliance with the requirements
of Rule 6(6) and our case law interpreting certification
orders under Rule 54(b).
IT IS
THEREFORE ORDERED that this appeal is DISMISSED WITHOUT
PREJUDICE.
The
Clerk is directed to provide copies of this Order to all
counsel of record and Hon. Mike Menahan.
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Notes:
[1] Christopher A. Faulkner was one of
fourteen defendants who remained parties to the litigation
after the District Court granted summary judgment to AEEI.
The District Court did not address the impact of its summary
judgment order as it pertained ...