Nesvig v. ANDERSON BROS. CONSTRUCTION CO. OF BRAINERD

Citations: 490 N.W.2d 478; 1992 N.D. LEXIS 194; 1992 WL 246053Docket: Civ. No. 920070

Court: North Dakota Supreme Court; October 1, 1992; North Dakota; State Supreme Court

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Richard John Nesvig filed a lawsuit against Anderson Brothers Construction Company and Traill County, claiming negligence after he sustained severe injuries due to a drop-off between a newly blacktopped road and its unfinished shoulder. The incident occurred after the road's surface was completed in 1983 but the shoulder grading was not finished until 1984. Initially, in April 1991, Nesvig's request for a change of venue from Traill County to Cass County was denied. After submitting five affidavits, he successfully moved for reconsideration, leading to the district court granting the venue change. Anderson Brothers and Traill County subsequently appealed, arguing that the supporting affidavits did not provide a sufficient basis for the venue change and that the court had abused its discretion.

The Supreme Court of North Dakota dismissed the appeal, noting that the district court's order changing the venue was not certified for appeal under NDRCivP 54(b). The court clarified that recent precedents, including Western Co-Op Credit Union v. Hagemeister and Harmon Motors v. First Nat'l Bank, affirm that an order granting a change of venue is not appealable when there are unresolved claims in the trial court. The court emphasized that appellate jurisdiction requires the appealed order to meet statutory criteria for appealability, as outlined in NDCC 28-27-02.

Compliance with Rule 54(b) of the N.D. Rules of Civil Procedure is mandatory for appellate jurisdiction; failure to comply results in a lack of jurisdiction. Case law, including Gast Constr. Co. v. Brighton Partnership and Ceartin v. Ochs, reinforces that specific orders must be certified under Rule 54(b) to be appealable. In the current context, because Nesvig's claim and Anderson Brothers' cross-claim remain unresolved, Rule 54(b) applies. The rule requires an express determination from the trial court that there is no just reason for delay and a directive for judgment entry. The trial court did not make such determinations or directives, nor does the record imply an intent to make the order appealable. The trial court aimed to avoid delays by granting a change of venue, indicating a preference for the case to proceed to trial without obstacles. It is deemed inappropriate to retain jurisdiction while remanding for Rule 54(b) certification, as this procedure is typically reserved for unusual circumstances, which are not present in this case. Past cases indicate that remanding under NDRAppP 35(b) is only justified in exceptional situations, such as significant procedural questions or unique complications that could hinder a party's rights.

No unusual circumstances justifying an NDRAppP 35(b) remand were found in this case, paralleling the decision in Gissel. The appeal was dismissed as it stemmed from a routine order, similar to Gissel's context where a jury trial remained pending and the order was subject to revision before final judgment. Unlike the cases of D'Annunzio and Lindberg, no unique hardships were present before or as a result of the dismissal. The judgment from the trial court did not meet the requirements of Rule 54(b), which necessitates an express determination that there is no just reason for delay. The court emphasized that NDRAppP 35(b) should be used sparingly, only in clear cases, and noted that reliance on prior rulings for "unusual circumstances" is no longer justifiable given the established nature of Rule 54(b) jurisprudence. The inquiry into potential abuse of discretion by the trial court was deemed unnecessary due to the lack of compliance with Rule 54(b). Consequently, the appeal was dismissed for lack of jurisdiction.