Lead Opinion
[¶ 1] Susаn Lundberg, as trustee of the' Gabriel J. Brown Trust, appeals from an order granting Greg Holverson summary judgment. We treat Lundberg’s appeal as an appeal from a subsequently entered consistent judgment, and conclude we do not have jurisdiction to hear the appeal becаuse the district court has ordered but not yet determined the amount of attorney fees awarded to Holverson. We dismiss the appeal.
I
[¶ 2] Holverson sued Lundberg to quiet title to a tract of land in Burleigh County, alleging he executed a contract for deed to purchase land from the Trust in 1978. He defaulted on payments under the contract for deed and Lundberg sent him a notice of statutory cancellation of the contract on December 13, 2012, which required him to satisfy the contract by June 17, 2013. Holverson alleged he presented a cashier’s check to Lundberg for the balance due under the contract for deed on June 14, 2013, but she refused to accept the check. He sought to require Lundberg to accept the check, convey the land to him and to quiet title to the land.
[¶ 3] Lundberg answered and counterclaimed. She sought to rescind thе 1978 contract for deed and a 1997 amended contract for deed and a mortgage, alleging Holverson’s fraud and false representаtions induced her to forebear from cancel-ling the contract for deed before 2012, and she instead agreed to amend the cоntract for deed and a mortgage in 1997 to extend' his time to pay and to reduce the amount owed .the Trust. She alternatively claimed that if shе was not entitled to rescind the contract for deed, she was entitled to damages for Holverson’s fraud and misrepresentation.
[¶ 4] The district court granted Hol-verson summary judgment, dismissing Lundberg’s counterclaims, directing her to accept Holverson’s cashier’s check and convey the land to him, and quieting title in the land to him. The court ruled Lund-berg’s conclusory allegations about fraud and misrepresentations failed to raise a disputеd issue of material fact on her counterclaims. The court said Lundberg’s allegations that Holverson satisfied several other mortgages оn this property while failing to make required payments on the contract for deed were conclusory and failed to demonstrate Holverson executed the contract for deed with no intention of performing. The court said if Holverson breached the contract fоr deed because he executed other mortgages on the land during the term of the contract for deed, the trustee’s remedy was to сancel the contract for deed. The court also explained if Holverson made false statements to induce Lundberg to amend the contract for deed and a mortgage in 1997, her remedy was to cancel the contract for deed. The court said by serving a statutory notice of default on Holverson, Lundberg was obligated by statute to allow Holverson six months to cure the default and he cured within that time. The court also decided Lundberg was not entitled to damages resulting from Holverson’s failure to make timely payments because she waived any defаults by Holverson and was entitled to cancel the contract for deed at any time. The court concluded Lundberg initiated the statutory prоcess to cancel the contract for deed after Holverson defaulted, Holverson performed under the statutory requirements tо cure his default and Lundberg was obligated to accept the cashier’s check.
II
[¶ 6] Before we consider the merits of an appeal, we must'have jurisdiction. In re Estate of Hollingsworth,
[¶7] Lundberg has attempted to appeal from an order granting summary judgment. “ ‘An order granting summary judgment is not appealable.’” Hale v. Ward Cnty.,
[¶ 8] After Lundberg filed her notice of appeal from the order for summary judgment, a judgment was entered incorporating the disposition in the order for summary judgment and awarding Holver-son “reasonable” attorney fees. We treat Lundb'erg’s appeal as an appeal from that judgment.
[¶ 9] That conclusion, however, does not end the jurisdictiоnal inquiry in this case because the district court has not yet determined the amount of attorney fees awarded to Holverson. The framewоrk for analyzing this Court’s jurisdiction in appeals involving unadjudicated claims remaining to be resolved by the district court is well settled. Gissel v. Kenmare Twp.,
“ ‘First, the order appealed from must meet one of the statutory criteria of appealability set forth in NDCC 28-27-02. If it does not, our inquiry need go no further and the appeal must be dismissed. If it does, then Rule 54(b), N.D.R.Civ.P., [if applicable,] must be complied with. If it is not, we arе without jurisdiction.’
Matter of Estate of Stensland,1998 ND 37 , ¶ 10,574 N.W.2d 203 (quoting Gast Constr. Co., Inc. v. Brighton P’ship,422 N.W.2d 389 , 390 (N.D.1988) . (citations omitted)).
The purpose of N.D.R.Civ.P. 54(b) is to facilitate our longstanding policy to discourage piecemeal appeals of multi-сlaim or multi-party litigation. Under N.D.R.Civ.P. 54(b), the district court is authorized to enter a final judgment ad*149 judicating fewer than all claims of all parties when the cоurt expressly concludes there is no just reason for delay and expressly directs the entry of judgment.”
[¶ 10] Here, the judgment does not resolve the amount of attorney fees awarded to Holverson and contemplates further action by the district court. No certification under N.D.R.Civ.P. 54(b) exists, аnd the record does not suggest this is the “infrequent harsh case” appropriate for Rule 54(b) certification. See Hollingsworth,
Ill
[¶ 11] We dismiss the appeal.
[¶ 13] The Honorable William A. Herauf, D.J., sitting in place of Kapsner, J., disqualified.
Dissenting Opinion
dissenting.
[¶ 14] Because I would not approve an award of attorney fees in any amount in this case, I respectfully dissent.