                                            No. 03-319

                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                        2003 MT 277


IN RE THE MARRIAGE OF

CATHY JEANNE ARMSTRONG,

               Petitioner and Respondent,

         and

HARRY JOHN ARMSTRONG,

               Respondent and Appellant.


APPEAL FROM:          District Court of the Eighteenth Judicial District,
                      In and For the County of Gallatin, Cause No. DR 2002-173,
                      Honorable Wm. Nels Swandal, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Leanne M. Schraudner, Schraudner & Hillier, L.L.P., Bozeman, Montana

               For Respondent:

                      Cathy J. Armstrong, pro se, Albuquerque, New Mexico



                                                         Submitted on Briefs: September 25, 2003

                                                                    Decided: October 7, 2003


Filed:

                      __________________________________________
                                        Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.

¶1     Harry John Armstrong appeals from the order entered by the Eighteenth Judicial

District Court, Gallatin County, granting the motion of Cathy Armstrong to strike a mediated

property settlement agreement. We dismiss the appeal.

¶2     Cathy petitioned the District Court for dissolution of her marriage to Harry. The

parties attended a mediation which resulted, among other things, in a property settlement

agreement (PSA) which was reduced to writing and fully executed by the parties. Later,

Cathy moved to strike--and Harry moved to adopt--the mediated PSA.

¶3     The District Court held a hearing, received testimony and obtained supplemental

briefs on the legal issue of enforcing the mediated PSA in the context of §§ 40-4-201 and

40-4-305, MCA. It subsequently entered its order granting Cathy's motion to strike the PSA

based on its interpretation of the referenced statutes.

¶4     Harry moved for Rule 54(b), M.R.Civ.P., certification of, and entry of final judgment

on, the order striking the PSA. Cathy opposed the motion. The District Court entered its

Order granting certification and entry of final judgment, and Harry appeals.

¶5     The dispositive issue before us is whether the District Court's certification order meets

the necessary criteria. We conclude it does not.

¶6     Neither party raised this issue on appeal. We raise it sua sponte, however, because

if a trial court abuses its discretion in certifying an order as final under Rule 54(b),

M.R.Civ.P., this Court is without jurisdiction to entertain the appeal.              Kohler v.




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Croonenberghs, 2003 MT 260, ¶ 9, 317 Mont. 413, ¶ 9, ___ P.3d ___, ¶ 9 (citations

omitted).

¶7     Rule 54(b), M.R.Civ.P., provides a mechanism whereby--under certain circumstances

--a trial court may direct the entry of a final judgment as to one or more, but fewer than all,

of the claims or parties in a pending legal action. In entering a Rule 54(b) motion, however,

the trial court must expressly determine "that there is no just reason for delay. . . ." Our

recent decision in Kohler, together with Weinstein v. University of Mont. at Missoula (1995),

271 Mont. 435, 898 P.2d 101, and Roy v. Neibauer (1980), 188 Mont. 81, 610 P.2d 1185,

set forth in detail the appropriate considerations, procedural steps and underlying rationale

for Rule 54(b) certifications. The Rule is intended to balance the undesirability of piecemeal

appeals with the necessity of making review available when it best serves the parties' needs.

Roy, 188 Mont. at 85, 610 P.2d at 1188 (citation omitted). However, the Rule also is

intended to be used sparingly and only in the "infrequent harsh case[;]" it is not to be used

"routinely or as a courtesy or accommodation to counsel. . . ." Roy, 188 Mont. at 85, 610

P.2d at 1188 (citations omitted).

¶8     In addition, we have enumerated a number of factors we normally would consider in

reviewing 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 set-off against the judgment sought to be made final; and

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             (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 (citation omitted). We also observed that, depending

on the particular case, all or only some of the factors might bear on the propriety of a Rule

54(b) certification. Roy, 188 Mont. at 87, 610 P.2d at 1189 (citation omitted). It is against

this backdrop that we address the certification order at issue here.

¶9      In the present case, the District Court stated the following reasons for granting

Harry's motion:

               a. The determination of this issue may eliminate the need for a trial on
       property issues, saving judicial resources and the litigants resources.
               b. There is no possibility that the need for review by the Supreme
       Court will be eliminated by future developments in the District Court.
               c. The Supreme Court will not be obligated to consider the same issue
       a second time.
               d. There is no set off.
               e. The consideration of the February 20, 2003 Judgment is in the
       interest of judicial economy and could shorten the time of trial.
               f. A Supreme Court ruling on the issue of the February 14, 2003 Order
       and February 20, 2003 Judgment would be beneficial to family law practices
       and litigants and poses an issue never before addressed by the Court, "Is an
       executed written settlement agreeing arising out of a mediation format
       enforceable?". The District Court finds this to be an issue that merits a
       decision by the Supreme Court.

¶10    In comparing the District Court's rationale to the factors set forth in Roy, we observe

that some of its bases for granting Harry's motion--such as factors b., c., and d.--are among

those contained in Roy and, while not completely parroting the words of Roy, are

substantially similarly stated. To this extent, at least, the certification order before us in the

present case is a cut above that before us in Kohler, ¶ 6, which stated only that,

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       [u]pon application pursuant to Rule 54(b), M.R.Civ.P., good cause having
       been shown, and there being no just reason for delay, the Court hereby
       certifies the Order of September 9, 2002, as a final partial Judgment as to
       Counts II and III of Plaintiffs’ Complaint. Additionally, the Order of
       September 9, 2002 is also certified as a final Judgment as to Defendant
       Lambros.

¶11    On the other hand, unlike in Kohler, the certification order now before us does not

meet the express requirement set forth in Rule 54(b), M.R.Civ.P., that a certifying order

include "an express determination that there is no just reason for delay. . . ." This omission

alone would be sufficient to conclude that the certification order in this case does not vest

jurisdiction in this Court to entertain the appeal. See Kohler, ¶ 9. Nor is there any

suggestion--much less analysis--in the District Court's Order that this is the "infrequent harsh

case" the Rule is intended to address. See Roy, 188 Mont. at 85, 610 P.2d at 1188 (citation

omitted).

¶12    It has been clear since our 1980 decision in Roy, 188 Mont. at 86, 610 P.2d at 1189,

that a proper exercise of discretion with regard to a motion for Rule 54(b) certification

requires a trial court to do more than merely recite magic words from the Rule itself or the

Roy factors. Instead, a trial court must clearly articulate its reasoning behind any factors set

forth, so this Court has some basis for distinguishing between well-grounded orders and

"mere boiler-plate approval unsupported by the facts or an analysis of the law." Kohler, ¶ 14

(citation omitted). The District Court's certification order in this case recites magic words;

it does not provide this Court with any basis for determining whether it is--or is not--a well-

grounded order.



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¶13    Furthermore, we take this opportunity to address several of the District Court's bases

for certification individually, in hopes of providing additional guidance to both counsel

trying to meet their burden in a Rule 54(b) motion and trial courts in the "certification order"

arena. Bases a.--that the determination of this issue "may" eliminate the need for a trial on

property issues, saving resources for both the trial court and the litigants in this case--and

e.--"could" shorten the time of trial--are insufficient bases for certification. At the very least,

the related Roy factor is "shortening the time of trial" not merely that a decision by this

Court--using this Court's equally limited time resource--"may" shorten the trial in the District

Court. See Roy, 188 Mont. at 87, 610 P.2d at 1189 (emphasis added) (citation omitted). Nor

are we persuaded that litigants' resources necessarily are saved by potentially coming to this

Court on two occasions--both now and later on appeal.

¶14    Finally, we turn to those portions of the trial court's basis f., that a ruling by this Court

would be "beneficial" and would be on an issue of first impression, and that the District

Court determines the issue to be one that "merits a decision" by this Court. Nothing in Roy,

Weinstein or Kohler even hints that such considerations are appropriate bases for a

certification order. As counsel and district courts must surely be aware, rulings from this

Court necessarily are beneficial to someone and, of course, we resolve many issues of first

impression--almost always via an ordinary appeal. As to the trial court's "merits a decision"

statement, it bears no relationship whatsoever to the propriety of a certification order for

entry of final judgment at this stage of the underlying case.




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¶15    Just last month in Kohler, ¶ 20, we repeated our 23-year-old admonition from Roy,

188 Mont. at 84, 610 P.2d at 1187 (citation omitted):

       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.

To say that our case load has increased in the 23 years since Roy is an understatement of

some magnitude. We should not be forced to discover--and raise sua sponte--a question of

jurisdiction which arises in nearly every case involving a certification order and then, with

increasing frequency, write an opinion dismissing the appeal for lack of jurisdiction. Nor,

in our view, should trial courts so readily accept movants' theories of certification without

holding them to their burden of convincing "the district court that the case is the 'infrequent

harsh case' meriting a favorable exercise of discretion." Roy, 188 Mont. at 87, 610 P.2d at

1189 (citation omitted).

¶16    As we recently did in Kohler, ¶ 21, we conclude that the District Court failed to

apply the factors and guiding principles long set forth in our case law relating to Rule 54(b),

M.R.Civ.P., and, accordingly, we further conclude that the District Court abused its

discretion in entering the certification order in this case. Consequently, because this Court

is without jurisdiction to hear this appeal, we reverse the District Court's certification order

and dismiss this appeal without prejudice.



                                                           /S/ KARLA M. GRAY

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We Concur:

/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ JOHN WARNER
/S/ JIM RICE




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