No. 79-56 INTHE SUPREME COURT OF THE STATE OF MONTANA

ROB ROY, individually and as guardian ad litemof HEATHER ROY, Plaintiff and Appellant,

WALTER NEIBAUER and JOHN CARLSON, Defendant and Respondent.

Appeal from: District Court of the Eighth Judicial District, In and for the County of Cascade. Honorable Joel G. Roth, Judge presiding. Counsel of Record: For Appellant: Hoyt, Trieweiler, Lewis & Regnier, Great Falls, Montana For Respondent: Jardine, Stephenson, Blewett & Weaver, Great Falls,

Montana Tom Boland, Great Falls, Montana

Submitted on briefs: February 27, 1980

Filed: 

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## 19-84Mr. Justice Daniel J. Shea delivered the Opinion of the Court. Plaintiff appeals an order of the CascadeCounty District Court granting summary judgment in favor of defendantWalter Neibauer. Theplaintiff's action against the other defendant, John Carlson, is stillpending. Because the order appealed from isnot a finalone,and the plaintiff failed to comply with the requirements of certification specified in Rule 54(b), M.R.Civ.P., this appeal is dismissedwithout prejudice. Because of the recurring problems this Courthas facedwith relation to piecemeal appeals,we are impelled to set forth the requirementswhich must be met for an appealwhere the order appealed from isnot otherwise final. On January 5, 1979, the plaintiff commenced an action against his landlord, Walter Neibauer, and John Carlson, the tenant in the adjoining dwelling of the landlord's duplex. The complaint alleged that the defendants negligently permitted Carlson's dog to bite theplaintiff's ward, Heather ROY, when she wasplaying in theyard in front of the duplex,and soughtdamages forher injuries. Both defendants filed answers to the complaint,but before the actionproceeded to trial, the court granted defendantNeibauer's motion for a summary judgment. The court's order stated that the judgment did not concern the liability of the dog owner, John Carlson. The court simply determined that the landlordhad no duty to remove his tenant's dog from the front yard of the duplex, and thus that he was not liable to theplaintiff. The plaintiff appeals this order. Theplaintiff's appeal is premature. A judgmentwhich leaves undetermined the liability of one ormore of the defendants cannotbe appealed unless it is expressly made final upon a determination that there is no just reason for'delay. See Rule 1,M.R.App.Civ.P.; Rule 54(b), M.R.Civ.P. See also Krusemark v. Hansen (1979)

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# . , 597 P.2d 

### - - 48, 36 St.Rep. 159;Knoepke v, Southwestern Ry. Co. (1979), Mont

# . , 595 P.2d 376, 36 St.Rep. 957. The court's - order entered judgment in favor of only one of the defendants, leaving the liability of defendant Carlson still to be decided. Plaintiff appealed from the order granting summary judgment to defendantWalter Neibauer and made no attempt at all to complywith the certification requirementsof Rule 54(b). Because of this failure to comply we must dismiss the appeal. Although this Court has dismissed appeals in the past for failure to complywith the requirementsof Rule 54(b), it seems that themessage has not been received. See, for example, Krusemark v. Hansen, supra;Knoepke v. Southwestern Ry. Co., supra; In Re Marriage ofAdams (1979)

## , -Mont

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, 598 P.2d 197, 36 St-Rep.565. We have also dismissed appeals involving trial court orders which were interlocutory in nature and lacking a final judgment. See, for example, Winter v. Rhodes (1979)

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### , 589 P.2d 1021, 36 St.Rep. 217; Blevins v. Kramer (1978), -Mont

# . , 587 

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We tried to get this message across in rather strong terms in the case of In Re Adoption of BGB (1979), 

### -Mont

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, 599 P.2d 375, 36 St-Rep.1638,but still apparently to

no avail. In BGB, 

### - we stated: "Toooften this Court is confrontedwith cases that are not ready for appellate review within the meaning of the rules,but where the opposing parties do not bring this crucial fact to our attention. We often do not discover this until we are deeply into the process of review and indeed often in the opinion-writing stage. We cannot and will not tolerate this state of affairs."If the case isnot ready for review, it should notbe appealed. If for some reason it is appealed prematurely, it is the duty of the parties to bring this to our attention by an appropriate motion to dismiss so that it can be remanded to the District Court. This Court does not have the time and the resources to be compelled to independently search the record to determine if all essential issueshave first been decided at the DistrictCourt level." 599 P.2d at 381. Here neither party called our attention to the fact that the summary judgmentwas interlocutory in nature and that a Rule 54(b) certificationhad not been obtained. Both parties proceeded as though this case was oneperfectly proper to appealwith no further adieu after the trial court entered summary judgment in favor of defendant Neibauer. We will set forth the applicable legal principles and procedural steps involved in relation to Rule 54(b). An adjudication lacks finality in a multiple claims or multiple parties action if the trial court adjudicates one ormore but less than all of the claims. Krusemark v. Hansen, supra, 597 P.2d at 49, 36 St.Rep. at 160. The right of an immediate appeal from a partial judgment is governed by Rule 54(b), M.R.Civ.P.; In Re Marriage ofAdams, supra;Krusemark

v. Hansen, supra. Rule 54(b), M.R.Civ.P., modeled after Rule 54(b), F.R.Civ.P., allows the trial court to certify a judgment as final. Rule 54(b), F.R.Civ.P. isdesigned to facilitate the entry of judgment on one ormore claims,or as to one ormore parties, in a multi-claim/multi-party action. Allis-Chalmers Corp. v. PhiladelphiaElectric Co.

(3rdCir. 1975), 521 F.2d 360, 363. Rule 54(b) attempts to strike a balance between the undesirability of piecemeal appeals and the need to make review available at a timewhen itbest serves the needs of the parties. Aetna Insurance Company v. Newton (3rd Cir. 1968), 398 F.2d 729, 734. It is in the discretion of the -4-District Court to grant or deny a request for a Rule 54(b) certification,Singer Housing Co. v. Seven Lakes Venture

(D.Colo. 1979), 466 F.Supp. 369, 378; United Bank of Pueblo

v. Hartford Acc. & Indem. Co. (10thCir. 1976), 529 F.2d 490, 492. This does notmean, however, that the decision allowing an appeal toproceed should be lightly entered. Theproper procedure and approachwhich a trial court should take in relation to a certificationunder Rule 54(b), isdiscussed in Panichellav. PennsylvaniaRailroad Company (3rd Cir. 1958), 252 F. 2d 452, 455: "Thus,the procedure contemplated by Rule 54(b) is usuallymore than a formality.. 

# . . [A]n application for a 54(b) order requires the trial judge to exercise considered discretion, weighing the overallpolicy against piecemeal appeals against whatever exigencies the case at hand may present. Indeed,the draftsmen of this Rule have made explicit their thought that itwould serve only to authorize 'the exercise of a discretionary power to afford a remedy in the infrequentharsh case.. 

# . .' 28 U.S.C.A., Federal Yules of Civil Procedure, 118-119 note. It follows that 54(b) orders should not be entered routinely or as a courtesy or accommodation to counsel. The power which this Rule confers upon the trial judge should be used only 'in the infrequent harsh case' as an instrument for the improved administration of justice and themore satisfactory disposition of litigation in the light of the public policy indicated by statute and rule. See 6 Moore, Federal Practice, 1953, 264-265." Because an appellate court cannot consider the merits of a nonfinal order, the threshhold question zeros in on the propriety of the Rule 54(b) certification. AllisChalmers Corp. v. PhiladelphiaElectric Co., supra, 521 F.2d at 362;Gumer v. Shearson,Hammill & Co., Inc. (2nd Cir. 1974),96F.2d 283, 285. In federal court practice ithas been the rule that an appellate courtmay dismiss an appeal from a judgment certified pursuant to Rule 54(b), if it finds that the trial court abused its discretion in certifying the order. Sears Roebuck & Co. v. Mackey (1956),351 U.S. 427, 437, 76 S.Ct. 895, 100 L.Ed. 1297. Indeed, it hasbeen held that if a trial court abuses its discretion in certifying an order of summary judgment as final, an appellate court iswithout jurisdiction to entertain the appeal. Allis-Chalmers Corp. v. PhiladelphiaElectric Co., supra, 521 F.2d at 362-363. See B. B. Adams Gen. Con., Inc. v. Department of HUD (5thCir. 1974), 501 F.2d 176, 177. The burden is on theparty seeking final certification to convince the trial court that the case is the "infrequent harsh case"meriting a favorable exercise of discretion. Allis-Chalmers Corp. v. PhiladelphiaElectric Co., supra, 521 F.2d at 365; SeeWright & Miller, Federal Practice and Procedure, Civil, S2659 (1973),at 75, et seq,and the fact that neitherparty objected to the issuance of a Rule 54(b) certificate is not sufficient reason to sustain a trial court's action. The trial court has an independentduty to avoid piecemeal appeals and protect parties' rights against prejudice resulting from premature appeal. Arlinghaus v. Ritenour (2d Cir. 1976), 543 F.2d 461, 464. Rule 54(b) requires that before a certification can be made the trial court must find that there be "no just reason for delay." A proper exercise of discretionunder this rule requires the trial court to do more thanmerely recite the magic words that there is "no just reason for delay." The trial court must clearly articulate the reasons and factors underlying its decision to order a Rule 54(b) certification. See In Re Adoption of BGB, supra, 599 P.2d at 381, 36 St-Rep. at 1746. As an appellate courtwemust have some basis for distinguishing between well grounded orders which have considered all of the relevant factors and mere boilerplate approvalunsupported by the facts or an analysis of the law. Allis-Chalmers Corp. 

### v. Philadelphia Electric Co., supra, 521F.2d at 364. Also see Gumer v. Shearson,Hammill & Co., Inc., supra, 516 F.2d at 286; and Schwartzv. Compagnie General Transatlantique (2ndCir. 1968), 405 ~.2d 270, 275. An appellate court will normally consider the following factorswhen considering a Rule 54(b) certification: "1. The relationship between the adjudicated and unadjudicated claims; "2. the possibility that the need for review might ormight notbe 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." Singer Housing Co. v. Seven Lakes Venture, supra, 466 F.Supp. at 378-379. Depending,of course, on theparticular case, all or
some of the above factorsmay bear upon the propriety of the order granting a Rule 54(b) certification. Allis-Chalmers Corp. v. Philadelphia Electric Co., supra, 521 F.2d at 364. The guiding principles for a Rule 54(b) certificationmay be summarized as follows: 

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.. (1)theburden is on the party seeking final certification to convince the district court that the case is the 'infrequent harsh case' meriting a favorable exercise of discretion; (2)the district courtmust 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; (3) the district courtmust marshal1 and articulate the factors upon which it relied in granting certification so thatprompt and effective review can be facilitated." Allis-Chalmers Corp. v. PhiladelphiaElectric Co., supra, 521 F.2d at 365. We expect that in the future,attorneys in this state will faithfully adhere to the ruleswhich apply to appealable orders under Rule 1, and to the rules which apply to obtaining certification under Rule 54(b).This appeal is dismissed without prejudice. 

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Justic

We Concur:

Chief Justice