No. 81-305 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

MICHAEL T. REIDY, 

Plaintiff and Appellant, 

ANACONDA-DEER LODGE COUNTY, MONTANA 

Defendants and Respondents. 

Appeal from: District Court of the Third Judicial District, 

In and for the County of Deer Lodge 

Honorable Robert Boyd, Judge presiding 

Counsel of Record: 

For Appellant: 

Haxby and Sweeney, Butte, Montana 

Bradley L. Belke argued, Butte, Montana 

For Respondents: 

Poore, Roth, Robischon & Robinson, Butte, Montana 

Douglas A. Buxbaum argued, Butte, Montana 

Submitted: December 4, 1981 

Decided: ylt 

B 

" Clerk 
Mr. 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 citycounty government of Anaconda-Deer Lodge County, the District Court 

granted partial summary judgment against the developer striking 

his claim for loss of a percentage of income and ownership of the 

proposed complex. The developer appeals. We vacate the summary 

j udgment and remand for further proceedings. 

In June, 1978, plaintiff Michael Reidy and defendant 

Anaconda-Deer Lodge County entered into an agreement for the development of a shopping mall complex in a six-block area of downtown Anaconda, Montana. 

In November 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 

to Reidy 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 

in attempting to perform the contract ($19,791.28); (2) loss of 

builder's profit ($90,000); and (3) loss of his percentage of 

income and ownership of the complex ($410,000). 

Anaconda-Deer Lodge County moved for partial summary 

judgment on the last item of claimed damages contending that 

damages cannot be awarded for lost prof its of an unestablished 

business. The District Court granted partial summary judgment 

holding that no recovery could be awarded for Reidyls alleged loss 

of a percentage of income and ownership of the completed complex. 

On June 10, 1981, Reidy appealed from the partial 

summary judgment. Thereafter on August 18 Reidy moved for certi£ ication under Rule 54(b), M.R.Civ. P., that the partial summary 

judgment was final in nature 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 in 
its meinorandum opinion indicated that it had considered the factors enumerated in Roy 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 in determining whether certif ication should be granted because this case was of such an 

in£ requent and harsh nature that certification 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 prof its 

of an unestablished business. 

We do not reach this issue in this appeal. We will not 

permit cases to be fragmented in this manner to allow successive 

appeals in a single case where reasonable alternatives are 

available. Such action constitutes an unjustifiable waste of 

scarce judicial time and resources. 

We repeat what we said in Roy v. Neibauer, supra. If a 

trial court abuses its discretion in certifying an order of summary judgment 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), 521 F.2d 

360. An appellate court will normally consider the following 

factors when considering a Rule 54(b) certification: 

(1) The relationship between the adjudicated and unadj ud ica 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 claim or 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 time of 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 legality of that item and might reduce trial 

time, it is equally true that delaying 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 

services on 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 certainly moot 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 first determined before addressing any issue 

of damages. Rule 42(b), M.R.Civ.P.; Monaco v. Cecconi (1979), 

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

damages were reached in either a bifurcated or nonbif urcated 

trial, the district judge could admit all evidence of damages 

provisionally subject to a final determination following judgment. 
Use of either or both alternatives might 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 j udgment 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 

proceed ing s . 

Chief JUS~~C~ 

We concur: 

Justices [/