No. 79-56 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

ROB ROY, individually and as 

guardian ad litem of 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: #{kt! , t? 19-84 
Mr. Justice Daniel J. Shea delivered the Opinion of the Court. 

Plaintiff appeals an order of the Cascade County District 

Court granting summary judgment in favor of defendant Walter 

Neibauer. The plaintiff's action against the other defendant, 

John Carlson, is still pending. Because the order appealed 

from is not a final one, and the plaintiff failed to comply 

with the requirements of certification specified in Rule 54(b), 

M.R.Civ.P., this appeal is dismissed without prejudice. 

Because of the recurring problems this Court has faced with 

relation to piecemeal appeals, we are impelled to set forth 

the requirements which must be met for an appeal where the 

order appealed from is not 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 the plaintiff's ward, Heather ROY, 

when she was playing in the yard in front of the duplex, and 

sought damages for her injuries. 

Both defendants filed answers to the complaint, but 

before the action proceeded to trial, the court granted 

defendant Neibauer'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 landlord had no duty to remove his tenant's 

dog from the front yard of the duplex, and thus that he was 

not liable to the plaintiff. The plaintiff appeals this order. 

The plaintiff's appeal is premature. A judgment which 

leaves undetermined the liability of one or more of the 

defendants cannot be 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) , - Mont . - , 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 defendant Walter Neibauer and made no attempt at 

all to comply with the certification requirements of 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 comply with the requirements of Rule 54(b), 

it seems that the message has not been received. See, for 

example, Krusemark v. Hansen, supra; Knoepke v. Southwestern 

Ry. Co., supra; In Re Marriage of Adams (1979) , - Mont . 

, 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) , - Mont. - , 589 P.2d 1021, 36 

St.Rep. 217; Blevins v. Kramer (1978), - Mont . - , 587 

We tried to get this message across in rather strong 

terms in the case of In Re Adoption of BGB (1979), - Mont . 

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

no avail. In BGB, - we stated: 

"Too often this Court is confronted with 

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 is not ready for review, it should 

not be 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 issues have first been 

decided at the District Court level." 599 P.2d 

at 381. 

Here neither party called our attention to the fact 

that the summary judgment was interlocutory in nature and 

that a Rule 54(b) certification had not been obtained. Both 

parties proceeded as though this case was one perfectly 

proper to appeal with 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 or more 

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 of Adams, 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. is designed to 

facilitate the entry of judgment on one or more claims, or 

as to one or more parties, in a multi-claim/multi-party 

action. Allis-Chalmers Corp. v. Philadelphia Electric Co. 

(3rd Cir. 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 time when it best 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. (10th Cir. 1976), 529 F.2d 

490, 492. This does not mean, however, that the decision 

allowing an appeal to proceed should be lightly entered. 

The proper procedure and approach which a trial court 

should take in relation to a certification under Rule 54(b), 

is discussed in Panichella v. Pennsylvania Railroad Company 

(3rd Cir. 1958), 252 F. 2d 452, 455: 

"Thus, the procedure contemplated by Rule 54(b) 

is usually more than a formality.. . . [A]n 

application for a 54(b) order requires the trial 

judge to exercise considered discretion, weighing 

the overall policy against piecemeal appeals 

against whatever exigencies the case at hand may 

present. Indeed, the draftsmen of this Rule have 

made explicit their thought that it would serve 

only to authorize 'the exercise of a discretionary 

power to afford a remedy in the infrequent harsh 

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 the more 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. Philadelphia Electric Co., supra, 521 F.2d 

at 362; Gumer v. Shearson, Hammill & Co., Inc. (2nd Cir. 

1974), 96 F.2d 283, 285. In federal court practice it has 

been the rule that an appellate court may 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 has 
been held that if a trial court abuses its discretion in 

certifying an order of summary judgment as final, an appellate 

court is without jurisdiction to entertain the appeal. 

Allis-Chalmers Corp. v. Philadelphia Electric Co., supra, 

521 F.2d at 362-363. See B. B. Adams Gen. Con., Inc. v. 

Department of HUD (5th Cir. 1974), 501 F.2d 176, 177. 

The burden is on the party 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. Philadelphia Electric Co., supra, 

521 F.2d at 365; See Wright & Miller, Federal Practice and 

Procedure, Civil, S2659 (1973), at 75, et seq, and the fact 

that neither party 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 independent duty 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 discretion under this rule 

requires the trial court to do more than merely 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 court we must have some basis for 

distinguishing between well grounded orders which have 

considered all of the relevant factors and mere boilerplate 

approval unsupported by the facts or an analysis of the law. 

Allis-Chalmers Corp. v. Philadelphia Electric Co., supra, 521 
F.2d at 364. Also see Gumer v. Shearson, Hammill & Co., 

Inc., supra, 516 F.2d at 286; and Schwartz v. Compagnie 

General Transatlantique (2nd Cir. 1968), 405 ~.2d 270, 275. 

An appellate court will normally consider the following 

factors when considering a Rule 54(b) certification: 

"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 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 the particular case, all or 

some of the above factors may 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) certification may be 

summarized as follows: 

". . . (1) the burden 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 

court must 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 

court must marshal1 and articulate the factors 

upon which it relied in granting certification so 

that prompt and effective review can be facilitated." 

Allis-Chalmers Corp. v. Philadelphia Electric Co., 

supra, 521 F.2d at 365. 

We expect that in the future, attorneys in this state 

will faithfully adhere to the rules which 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. 

pd)& Justic 

We Concur: 

Chief Justice