### No. 81-305 

### IN THE SUPREMECOURT OF THE STATEOF MONTANA 1981

MICHAEL T. REIDY, Plaintiff and Appellant,

ANACONDA-DEER LODGE COUNTY,MONTANA Defendantsand Respondents.

Appeal from: District Court of the Third JudicialDistrict, In and for the County of Deer Lodge Honorable Robert Boyd, Judgepresiding Counsel of Record: ForAppellant: Haxby and Sweeney,Butte,Montana Bradley L. Belke argued,Butte, Montana For Respondents: Poore,Roth, Robischon & 

### Robinson, Butte,Montana DouglasA. Buxbaum argued, Butte,Montana

Submitted: December 

### 4, 1981 Decided: ylt

B

" 

### ClerkMr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. In an action for breach of contract by 

### a developer of a projected shopping mall complex against the consolidated citycountygovernment of Anaconda-Deer Lodge County, the District Court granted partial summaryjudgment against the developer striking hisclaim for 

### loss of a percentage of income and ownershipof the proposed complex. The developer appeals. We vacate the summary judgment and remand for furtherproceedings. InJune, 1978, plaintiff Michael Reidy and defendant Anaconda-Deer Lodge County entered into an agreement for the development of a shopping mall complex ina six-block 

### area of downtown Anaconda, Montana. InNovember 1979, Reidy filed an action for breach of contract against Anaconda-Deer Lodge County alleging that it failed to purchase the land for the development and transfer it 

### toReidy for construction as required by the contract, and further terminated the contract unilaterally without just cause

# . He sought damages of $519,791.28 consisting of (1)costs incurred inattempting 

### to perform the contract ($19,791.28); (2)loss of builder's profit ($90,000); and (3)

### loss of hispercentage of income and ownershipof the complex ($410,000). Anaconda-Deer Lodge Countymoved for partial summary judgment on the last itemof claimed damages contending that damages cannot be awarded for lostprofits of an unestablished business. The District Court granted partial summary judgment holding that no recovery could be awarded forReidyls alleged 

### loss of a percentage of income and ownership of the completed complex. On June 10, 1981, Reidy appealed from the partial summaryjudgment. Thereafter on August 18Reidymoved for certi£ ication under Rule 54(b),M.R.Civ. P., that the partial summary judgment 

### was final innature 

### so as to render it appealable. On August 19, the District Court granted Rule 54(b)certification. The District Court in its order of certification and initsmeinorandum opinion indicated that it had considered the factors enumerated inRoy v. Neibauer (1980), Mont

# . -- r 610 P.2d 1185, 37 St.Rep. 897. It indicated that Reidy 

### was entitled to a favorable exercise of discretion indetermining whether certification should be granted because this case 

### was of such an in£ requent and harsh nature thatcertification should be granted. The District Court indicated that the different items of claimed damages did not overlap; that there was no possibility of

a set off; that the reviewing court would not be obliged to consider this issue a second time; that it intended its ruling to be final; and that the delay, detrimental economic consequences and unwarranted additional expense would be unjust to Reidy. The issue posited by Reidy in this appeal 

### is whether damages are allowable in a breach of contract action for 

### lost profits of an unestablished business. Wedo not reach this issue in this appeal. We willnot permit cases 

### to be fragmented in thismanner to allow successive appeals in a single case where reasonable alternatives 

### are available. Such action constitutes an unjustifiable 

### waste of

scarcejudicial time and resources. We repeat what 

### we said inRoy v. Neibauer, supra. If a trial court abuses its discretion incertifying an order of summaryjudgment as final under Rule 54(b), an appellate court is without jurisdiction to entertain the appeal. Allis-Chalmers Corp. v. Philadelphia Electric Co. (3rd Cir. 1975),521F.2d 360. An appellate court willnormally consider the following factorswhen considering a Rule 54(b)certification: (1)The relationshipbetween the adjudicated and unadjudica ted 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 claimor counterclaim which could result in a setoff against the judgment sought to be made final; (5)Miscellaneous factors such as delay, economic and solvency considerations, shortening the timeof trial, triviality of competing claims, expense and the like. Roy 

### v. Neibauer, supra; Singer Housing Co. v. Seven Lakes Venture (D.Colo. 1979)

## ,466 F.Supp. 369. Here 

### we are asked 

### to hear, determine and issue an opinion

on whether one of three 

### items of damage 

### is permissible before a determination of liability for any damages has occurred. While - it is true that such determination in advance of trial would finally settle the legalityof that itemand might reduce trial time, it is equally true thatdelaying the trial pending determination of that issue on appeal results in undesirable consequences, viz.

## , unwarranted delay, additional costs involving filing fees, preparation of briefs, travelling to the State Capitol for oral argument and additional attorney fees for their serviceson appeal. Consideration and balancing of these competing factors is required under our opinion in Roy v. Neibauer, supra. The issue in this appeal might well be mooted by future developments in the ~istrict Court, another factor to be considered under - Roy. A finding of no liability under the contract by judge 

### or jury would certainlymoot any issue of damages. Reasonable a1 ternatives to a fragmented appeal are available in this case. The trial could be bifurcated with the issue of liability firstdetermined before addressing any issue of damages. Rule 42(b),M.R.Civ.P.; Monaco v. Cecconi (1979), Mont

# . , 589 P.2d 156; 36 St.Rep. 113. If the issue of damages 

### were reached in either a bifurcated ornonbifurcated trial, the districtjudge could admit allevidence of damages provisionally subject to a final determination following judgment.Use of either

### or both alternativesmight moot the issue now on appeal. In any event it would eliminate fragmentation of a single case into 

### two or

### more appeals and permit this Court to determine all issues in one appeal. We vacate the partial summary 

### judgment without prejudice 

### to permit the District Court to consider these alternatives. For the foregoing reasons, 

### we hold the District Court abused 

### its discretion in granting certification under Rule 54(b), M.R.Civ.P., and remand 

### to the District Court for further proceedings

# .

Chief JUS~~C~

We concur:

Justices [/