IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2021 ND 136

City 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.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

JULY 22, 2021 

STATE OF NORTH DAKOTA
1

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.
2

[¶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:
3

(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.
4

[¶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