Disciplinary Board v. Feland
2012 ND 174
| N.D. | 2012Background
- Strata was the general contractor and United Crane a subcontractor on a Mandan street-reconstruction project.
- A sewer backup caused by heavy rains damaged Mandan homes; funding paid by Mandan, Interstate Engineering, Strata, and United Crane.
- Mandan and Interstate Engineering sued Strata and Liberty Mutual to recover losses funded under the agreement.
- Strata and Liberty Mutual brought a third-party claim against United Crane for the $5,000 deductible paid by Strata under its Liberty Mutual policy.
- The district court granted United Crane summary judgment, finding United Crane an insured under Strata’s policy; it then certified this partial summary judgment as final under Rule 54(b).
- Strata and Liberty Mutual appealed the Rule 54(b) certification; the district court’s decision was challenged as improvidently certified and the court dismissed the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Rule 54(b) certification proper? | Strata/Liberty Mutual argue certification was warranted due to a unique, controlling issue. | United Crane argues certification was improper because further district court proceedings may moot the issue. | No; certification was improvidently granted due to potential mootness. |
| Should this Court exercise supervisory jurisdiction despite the Rule 54(b) defect? | Strata/Liberty Mutual urge supervisory review to resolve the subrogation issue. | United Crane contends supervisory review is unwarranted where the case may be mooted in district court. | Declined; supervisory jurisdiction was not exercised. |
| Whether the appeal should be dismissed as improvidently granted or moot? | appeal should proceed to resolve the subrogation issue. | Appeal should be dismissed due to potential mootness and Rule 54(b) improvidence. | Appeal dismissed. |
Key Cases Cited
- Brummund v. Brummund, 2008 ND 224 (2008) (abuse-of-discretion standard for Rule 54(b) certification)
- Citizens State Bank v. Symington, 2010 ND 56 (2010) (standard and limits on Rule 54(b) certification; sound administration)
- Choice Fin. Group v. Schellpfeffer, 2005 ND 90 (2005) (review of 54(b) certification; avoidance of piecemeal appeals)
- Dorothy J. Pierce Family Mineral Trust v. Jorgenson, 2012 ND 100 (2012) (mootness concerns in Rule 54(b) review; no advisory opinions)
- Nodak Mut. Farm Bureau v. Kosmatka, 2000 ND 210 (2000) (mootness and lack of just reason for delay in certification)
- Hurt v. Freeland, 1997 ND 194 (1997) (policy against advisory opinions; avoid moot issues)
- Mitchell v. Sanborn, 536 N.W.2d 678 (1995) (supervisory jurisdiction reserved for extraordinary cases)
- Dimond v. State ex rel. State Bd. of Higher Educ., 1999 ND 228 (1999) (supervisory jurisdiction discretionary; not routinely used)