                                          No. 02-497

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2003 MT 56


BELL & MARRA, pllc,

              Plaintiff and Appellant,

         v.

GORDON SULLIVAN,

              Defendant and Respondent.




APPEAL FROM:         District Court of the Eighth Judicial District,
                     In and For the County of Cascade, Cause No. BDV-98-308,
                     Honorable Wm. Nels Swandal, Presiding


COUNSEL OF RECORD:

              For Appellant:

                     Kirk D. Evenson, Marra, Wenz & Johnson, Great Falls, Montana

              For Respondent:

                     Jeff R. Lynch, Attorney at Law, Billings, Montana



                                                       Submitted on Briefs: December 27, 2002

                                                                 Decided: March 27, 2003


Filed:

                     __________________________________________
                                       Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1     Appellant, Bell & Marra, pllc, a law firm, appeals the District Court’s order of

November 2001, which was certified to this Court pursuant to Rule 54(b), M.R.Civ.P. We

reverse the District Court’s order certifying the November 2001 order as a final judgment;

therefore, we decline to address the merits of Bell & Marra’s appeal.

¶2     The dispositive issue is: Whether the District Court erred in certifying the November

2001 order pursuant to Rule 54(b), M.R.Civ.P.?

                   FACTUAL AND PROCEDURAL BACKGROUND

¶3     This is the fourth time that this case, in some form or fashion, has been before this

Court; therefore, the following factual background relates primarily to the Rule 54(b)

certification of the November 2001 order. The following facts also provide a framework

with which to understand the heart of this procedural tennis match. A more detailed

statement of the factual background can be found in Bell & Marra, pllc v. Sullivan, 2000 MT

206, 300 Mont. 530, 6 P.3d 965 ( Bell & Marra I).

¶4     In 1990, Sullivan retained the services of Bell & Marra to represent him in his claims

for wrongful discharge and discrimination against his former employer. In 1997, while

litigation of the claims was ongoing, Bell & Marra demanded that Sullivan enter into a new

retainer agreement that would entitle the law firm to a larger percentage of Sullivan’s

recovery. The firm threatened to withdraw from the case if Sullivan did not sign the new

retainer agreement. Instead of signing, Sullivan retained a new attorney. In 1998, Bell &

Marra filed suit against Sullivan for its attorney fees and costs that it had incurred prior to


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its withdrawal. In response, Sullivan filed a counterclaim against Bell & Marra alleging

breach of contract, conversion, breach of the implied covenant of good faith and fair dealing,

and breach of fiduciary duty. The District Court awarded summary judgment and quantum

meruit fees to Bell & Marra and dismissed Sullivan’s counterclaims. Sullivan appealed the

District Court’s grant of summary judgment; however, he did not explicitly appeal the

dismissal of his counterclaims. We reversed the District Court’s award of partial summary

judgment and remanded the matter to the District Court for entry of an order awarding

summary judgment in favor of Sullivan. We held that Bell & Marra had forfeited recovery

of compensation for the services it had performed for Sullivan because it had voluntarily

withdrawn from a contingent fee case without good cause. See Bell & Marra I, ¶¶ 38, 39.

Our opinion did not specifically address the dismissal of Sullivan’s counterclaims.

¶5     Following our decision, Sullivan undertook to litigate the counterclaims contained in

his response to Bell & Marra’s initial complaint. Bell & Marra claimed that Sullivan was

procedurally barred from pursuing his counterclaims because he had failed to appeal their

dismissal by the District Court. Bell & Marra then served on Sullivan a notice of entry of

judgment. Sullivan consequently filed a notice of appeal with this Court maintaining that the

District Court’s order, which Bell & Marra contended was final, was in fact not a final order

because it did not resolve Sullivan’s counterclaims. In dismissing the appeal without

prejudice, this Court reasoned that “[a]ssuming, because it has not been denied, that

Sullivan’s counterclaims are still pending in the district court, then the district court’s orders

resolving some but not all issues pending before it are interlocutory . . . .” Following our


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dismissal, the District Court held a hearing on the viability of the counterclaims. The District

Court then issued an order in November 2001, ruling that Sullivan’s counterclaims were

viable. The District Court based the order on its conclusion that our reversal in Bell &

Marra I was in toto.

¶6     Consequently, Bell & Marra filed a motion requesting that the District Court certify

the November 2001 order pursuant to Rule 54(b). In support of its motion, Bell & Marra

reasoned that certification of the order to this Court would “allow the Supreme Court to

clarify what [its] original order meant and save the trial court and parties the time and effort

of misreading that decision and going through a trial process which is ultimately ruled

unnecessary on subsequent appeal.” The District Court granted the motion and certified the

order to this Court. Bell & Marra appeals the November 2001 order and its conclusion that

Sullivan’s counterclaims are viable.

                                 STANDARD OF REVIEW

¶7     While it is within the discretion of the district court to grant or deny a request for a

Rule 54(b) certification, “the decision allowing an appeal to proceed in such a situation

should not be entered lightly.” Roy v. Neibauer (1980), 188 Mont. 81, 85, 610 P.2d 1185,

1188. We review discretionary rulings to determine if the district court abused its discretion.

See Montana Rail Link v. Byard (1993), 260 Mont. 331, 337, 860 P.2d 121, 125. Our

standard of review of a court’s conclusions of law is whether its interpretation of the law is

correct. See Bar OK Ranch, Co. v. Ehlert, 2002 MT 12, ¶ 31, 308 Mont. 140, ¶ 31, 40 P.3d

378, ¶ 31.

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                                         DISCUSSION

¶8     If a district court abuses its discretion in certifying an order as final under Rule 54(b),

this Court is without jurisdiction to entertain the appeal. See Weinstein v. University of

Montana at Missoula (1995), 271 Mont. 435, 440, 898 P.2d 101, 104. Therefore, the

threshold question is whether the District Court erred in certifying its November 2001 order

as final. If we determine that an order was either certified in error or not certified at all, our

general practice is to dismiss the appeal without prejudice. See Trombley v. Mann, 2001 MT

154, ¶ 11, 306 Mont. 80, ¶ 11, 30 P.3d 355, ¶ 11; Weinstein, 271 Mont. at 443, 898 P.2d at

106; Roy, 188 Mont. at 88, 610 P.2d at 1189.

¶9     Rule 54(b), M.R.Civ.P., states:

       When multiple claims for relief or multiple parties are involved in an action,
       the court may direct the entry of a final judgment as to one or more but fewer
       than all of the claims or parties only upon an express determination that there
       is no just reason for delay and upon an express direction for the entry of
       judgment. In the absence of such determination and direction, any order or
       other form of decision, however designated, which adjudicates less than all the
       claims or the rights and liabilities of less than all the parties shall not
       terminate the action as to any of the claims or parties, and the order or other
       form of decision is subject to revision at any time before the entry of judgment
       adjudicating all the claims and the rights and liabilities of all the parties.
       [Emphasis added.]

¶10    In Roy, we listed several factors for a district court to consider in cases where parties

seek Rule 54(b) certification. Depending on the particular case, some or all of the factors

may bear upon the propriety of the order granting Rule 54(b) certification. We must apply

those factors to determine whether the District Court abused its discretion. The factors listed

in Roy are:



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       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 set-off 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, 188 Mont at 87, 610 P.2d at 1189. In Roy, we also listed three guiding principles for

a Rule 54(b) certification:

       (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
       marshall and articulate the factors upon which it relied in granting certification
       so that prompt and effective review can be facilitated.


Roy, 188 Mont. at 87, 610 P.2d at 1189.


¶11    First, the District Court considered that miscellaneous factors, such as shortening the

time of trial, or negating the need for trial altogether, weighed in favor of certification. The

District Court also stated that “[f]uture developments in the District Court would not moot

the necessity of review of the issues presented to the Supreme Court herein.” The District

Court also remarked that this case represented an “infrequent harsh case” under Roy.

¶12    Although some of the Roy factors seemingly weigh in favor of certification, Rule

54(b) applies only “[w]hen multiple claims for relief or multiple parties are involved in an

action . . . .” In the instant case, however, neither multiple claims nor multiple parties exist.

In Weinstein, this Court concluded the opinion with considerations for Rule 54(b) analysis,

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one being that “[s]everal theories based on the same set of facts are considered as a single

claim for purposes of Rule 54(b) analysis.” Weinstein, 271 Mont. at 443, 898 P.2d at 106.

Here, all of Sullivan’s counterclaims are based on the facts surrounding Bell & Marra’s

withdrawal of representation; therefore, for purposes of Rule 54(b), his counterclaims are

considered one claim.

¶13     Even if multiple claims were present, Rule 54(b) provides that a “court may direct

the entry of a final judgment as to one or more but fewer than all of the claims.” (Emphasis

added.) The District Court, in its final “Order Certifying Appeal Pursuant to Rule 54,” stated

that the certification was for “some of the claims, but not all.” However, later in the order,

the District Court noted that “[t]he relationship between the adjudicated and unadjudicated

claims is such that Sullivan has no pending claims before the District Court . . . .” On its

face, it is clear that the certified order did not substantively adjudicate any of Sullivan’s

claims; rather it determined that the claims were viable. By certifying the November 2001

order to this Court, the District Court has, in effect, placed the entire case into our hands.

While the present appeal is before this Court, no claims, issues or parties remain with the

District Court for its adjudication. Therefore, because the District Court has essentially

certified all, not “fewer than all of” Sullivan’s unadjudicated claims to this Court, Rule 54(b)

certification is not appropriate.

¶14     In the past, we have cautioned courts against the temptation to certify difficult issues

to this Court in order to provide guidance for the remainder of the case. It is not the purpose

of Rule 54(b) certification to provide an advisory opinion to a district court. See Weinstein,

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271 Mont. at 442, 898 P.2d at 106. Because the District Court erred in certifying the

November 2001 order as final under Rule 54(b), there is no final judgment for this Court to

consider; therefore, we are without jurisdiction to hear Bell & Marra’s appeal. Accordingly,

we dismiss Bell & Marra’s appeal without prejudice and reverse and remand for adjudication

of Sullivan’s counterclaims.



                                                        /S/ W. WILLIAM LEAPHART



We concur:


/S/ PATRICIA COTTER
/S/ TERRY N. TRIEWEILER
/S/ JIM REGNIER
/S/ JIM RICE




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