GILDEA, Chief Justice.
The questions presented in this case are whether the district court abused its discretion in certifying an order as a final partial judgment under Minn. R. Civ. P. 54.02 ("Rule 54.02"), and if so, whether an erroneously certified order results in a judgment that is immediately appealable. The case arises from a dispute over a construction contract entered into between appellant Contractors Edge, Inc. ("Contractors Edge") and respondent City of Mankato ("the City"). Contractors Edge sued the City alleging breach of contract, equitable estoppel, and violation of the Prompt Payment Act, Minn.Stat. § 471.425 (2014). By 2012 only the breach of contract and the Prompt Payment Act claims remained. The City moved for summary judgment and the district court dismissed the breach of contract claim on October 3, 2012, in an order ("October 2012 order") that is at the center of this appeal. Although neither party asked for a certification of final judgment under Rule 54.02, the district court concluded the October 2012 order by stating, "THERE BEING NO JUST REASON FOR DELAY, LET JUDGMENT BE ENTERED ACCORDINGLY." Summary judgment on the claim was entered on the same day. The parties eventually settled the remaining Prompt Payment Act claim and the district court administrator entered final judgment on January 6, 2014.
Contractors Edge appealed on February 7, 2014, seeking review of the October 2012 order.
The court of appeals dismissed Contractors Edge's appeal, concluding that it was late. Contractors Edge, Inc. v. City of Mankato, No. A14-0223, Order at 3 (Minn. App. filed Mar. 18, 2014). Under Minn. R. Civ.App. P. 104.01, subd. 1, a judgment entered "pursuant to Rule 54.02" must be appealed within 60 days of the date the judgment is entered if the "trial court makes an express determination that there is no just reason for delay and expressly directs the entry of a final judgment." Consistent with the appellate rule, if the district court properly certified the October 2012 order under Rule 54.02, Contractors Edge's appeal, which was not filed until February 2014, was late and the court of appeals did not have jurisdiction. See Tischendorf v. Tischendorf, 321 N.W.2d 405, 409 (Minn.1982) (recognizing that an appellate court does not have jurisdiction over an appeal that is filed late). Accordingly, we turn first to a determination
Minnesota Rule of Civil Procedure 54.02 allows a district court to direct the entry of a final judgment "as to one or more but fewer than all of the claims" if it determines "there is no just reason for delay." In the October 2012 order, the district court used the language set forth in Rule 54.02. But the court did not explain its reasons for certifying under Rule 54.02. Contractors Edge argues that it is an abuse of discretion for a district court to fail to provide reasons for its decision and that without a recitation of reasons for the certification, the requirements of Rule 54.02 are not met. The City argues that although articulated reasons are an aid to review, they are not a requirement for a proper Rule 54.02 certification.
The parties' arguments require us to interpret procedural rules. We review the construction and application of procedural rules de novo. Commandeur LLC v. Howard Hartry, Inc., 724 N.W.2d 508, 510 (Minn.2006). In construing procedural rules, we look to the plain language of the rule and its purpose. Id.
Rule 54.02 provides that the district court "may direct the entry of a final judgment as to one or more but fewer than all of the claims ... only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." Minn. R. Civ. P. 54.02. Black's Law Dictionary defines "express" as "[c]learly and unmistakably communicated; stated with directness and clarity." Black's Law Dictionary 701 (10th ed.2014). It defines "determination" as "a final decision by a court." Black's Law Dictionary 544 (10th ed.2014). Further, Webster's Third New International Dictionary defines "determination" as "[t]he resolving of a question by argument or reasoning." Webster's Third New International Dictionary 616 (2002). These definitions do not support the argument that an "express determination" must include an explanation of the district court's reasoning. See Elliott v. Archdiocese of N.Y., 682 F.3d 213, 225-26 (3d Cir.2012) (examining the language of analogous Federal Rule of Civil Procedure 54(b) and concluding that the district court simply must articulate that it has made a determination that there is no just reason for delay). Instead, the phrase "express determination" suggests that a statement indicating that there is no just reason for delay may be sufficient, even without articulated reasons supporting the conclusion.
Cases interpreting Rule 54.02 and Fed. R.Civ.P. 54(b), the analogous federal provision, also support the conclusion that Rule 54.02 does not require an explanation for the certification. In terms of our precedent, we have never held that articulated reasons are required for a valid certification under Rule 54.02. And most federal courts reviewing the issue have held that although stated reasoning from the district court is preferred, it is not necessary for proper certification.
We agree with those courts that have concluded that it is a preferred practice for the district court to provide a written explanation for the certification decision. The failure to provide such articulated reasons, however, is not by itself an abuse of the district court's discretion. This is so because the record might otherwise disclose why the certification was appropriate. See Bank of Lincolnwood, 622 F.2d at 948-49.
We turn then to the record here to determine whether the record supports the certification. We review the record through the lens of the abuse-of-discretion standard of review. T.A. Schifsky & Sons, Inc. v. Bahr Constr., LLC, 773 N.W.2d 783, 786-87 (Minn.2009) (reviewing a district court's decision to certify an order pursuant to Rule 54.02 for an abuse of discretion).
Contractors Edge argues that the district court abused its discretion in this case because there are "no substantial and compelling reasons" in the record that would justify an immediate appeal of the October 2012 order. The City responds that the district court's certification was reasonable because, as reflected in the record, the two claims were independent of one another and the breach of contract claim was the substantive claim, which warranted immediate review. We agree with Contractors Edge that the record does not provide a basis for certification.
A district court has discretion to "allow a piecemeal appeal if the parties or claims are clearly separable and no prejudice would result from appeal." Novus Equities Corp. v. EM-TY P'ship, 381 N.W.2d 426, 428 (Minn.1986) (citation omitted) (internal quotation marks omitted). When deciding whether to certify, the district court should "weigh[] the overall policy against piecemeal appeals against whatever exigencies the case at hand may present." Panichella v. Pa. R.R., 252 F.2d 452, 455 (3d Cir.1958). District courts should not routinely certify an order pursuant to Rule 54.02, but should do so only in appropriate cases. See T.A. Schifsky & Sons, 773 N.W.2d at 789 n. 6.
One such appropriate case is when a district court certifies an order based on the possibility of hardship that could result from a delayed appeal. See Novus Equities Corp., 381 N.W.2d at 428. For example, in Novus Equities Corp., we upheld a Rule 54.02 certification, noting that the possibility of a substantial loss of interest on a judgment if the appeal were delayed was a permissible basis for an immediate appeal. Id.
Administrative concerns, such as the parties' desire to adjudicate one claim fully before deciding whether to continue to trial on another, may also support a certification. See, e.g., Cold Metal Process Co. v. United Eng'g & Foundry Co., 351 U.S. 445, 450 n. 5, 76 S.Ct. 904, 100 L.Ed. 1311 (1956). Other factors considered by federal courts in certifying pursuant to Fed.R.Civ.P. 54(b) include expense, delay, shortening the length of a trial, frivolity of competing claims, and the possibility that another claim or counterclaim could offset the judgment. See Allis-Chalmers Corp. v. Phila. Elec. Co., 521 F.2d 360, 371 (3d Cir.1975), abrogated on other grounds by Elliott v. Archdiocese of N.Y., 682 F.3d 213 (3d Cir.2012).
We agree with the principle discussed in these federal cases that, in general, closely related claims should not proceed separately on appeal. The certification at issue in this case runs afoul of that principle because the record establishes that the claims at issue were closely related. Specifically, both of Contractors Edge's claims arose out of its contractual relationship with the City. Contractors Edge argued that the City owed it compensation for the extra work it performed that was not included in the original contract and brought a breach of contract claim to recover that compensation. Contractors Edge also claimed that the City did not timely pay the percentage of the contract price the City withheld as retainage following completion of the project and that Contractors Edge was therefore entitled to interest, costs, and attorney fees under the Prompt Payment Act. Both claims required the court to interpret the parties' contract: first to determine whether the City owes Contractors Edge under the contract's claims procedure, and then to determine when Contractors Edge's work was substantially completed under the contract. As both claims arose from the same set of facts, certification is discouraged. See, e.g., Hayden, 719 F.2d at 270.
In urging us to reach the opposite conclusion, the City argues that the claims have no bearing on one another and are therefore independent. The legal analyses
Notwithstanding the fact that the claims are closely related, certification could still be permissible under Rule 54.02 if there were others factors that outweighed our policy against piecemeal appeals. But the record discloses no such countervailing considerations. Indeed, neither party in this case even requested Rule 54.02 certification and neither party has made any showing of hardship to justify a piecemeal appeal. Finally, nothing in the record suggests either party would have been prejudiced by waiting to appeal the district court's decision until the final resolution of both claims.
In sum, our review of the record provides no basis for a "determination" that certification was warranted under Rule 54.02. Because the claims arose out of the same facts, there is no showing of hardship or injustice, and the district court gave no indication of its reasons for certifying, we hold that the district court abused its discretion in certifying the October 2012 order.
Having decided that the district court erred in certifying the October 2012 order pursuant to Rule 54.02, we turn to whether, as the dissent contends and the court of appeals held, Contractors Edge nevertheless had to appeal the resulting judgment immediately. Contractors Edge argues that its appeal was timely because the district court's certification was improper and therefore the October 2012 judgment was not immediately appealable. The correct time to appeal, Contractors Edge argues, was following the entry of a final judgment on the last remaining claim, which did not occur until January 6, 2014. Because Contractors Edge appealed within 60 days of the entry of final judgment, it contends its appeal was timely. The City argues that appeals from a Rule 54.02 judgment must be taken immediately, even if the certification is later determined to be improper.
Whether an improperly certified Rule 54.02 order results in a judgment that is immediately appealable is an issue of first impression in Minnesota. The federal courts are split on the question. Under the rule adopted in the Ninth Circuit, orders that are improperly certified nevertheless result in immediately appealable judgments. See Lindsay v. Beneficial Reinsurance Co., 59 F.3d 942, 951 (9th Cir. 1995). In the Eighth Circuit, by contrast, orders that are certified in error do not result in immediately appealable judgments. See Page v. Preisser, 585 F.2d 336, 338 (8th Cir.1978). We can see value in each approach, but in our view, the approach that is most in accord with our
While our Rule 54.02 cases have not resolved the precise question presented here, the result we reach is more solidly grounded in the logic of our Rule 54.02 jurisprudence than the approach the Ninth Circuit has adopted and that the dissent advocates. For example, in T.A. Schifsky & Sons, Inc. v. Bahr Construction, LLC, 773 N.W.2d 783, 788 (Minn.2009), we suggested that a certification in a single-claim case does not start the time for an appeal. Because Rule 54.02 requires multiple parties or claims, we said that the district court's use of the rule's language "does not necessarily make the resulting judgment a final partial judgment pursuant to Minn. R. Civ. P. 54.02." Id. at 787. And we concluded that if the case is not eligible to be certified under the rule, the fact that the district court uses the rule's language in the order at issue does not make the resulting judgment immediately appealable. Id. at 788. Importantly for purposes of the case at hand, we went on in T.A. Schifsky & Sons to determine whether the case was somehow otherwise appealable. Id. ("Having concluded that the November 26, 2007, order could not be certified as a final partial judgment under Minn. R. Civ. P. 54.02, we must decide whether the December 13, 2007, judgment entered pursuant to the order was nevertheless immediately appealable as a final judgment."). If an improper Rule 54.02 certification resulted in a judgment that was nonetheless immediately appealable, as the City and dissent argue, there would have been no reason for us to go on to examine whether there was some other basis on which the case could have been appealed.
We have also held that a failure to state the required language does not result in an immediately appealable judgment. See, e.g., Pederson v. Rose Coop. Creamery Ass'n, 326 N.W.2d 657, 661 (Minn.1982). If the order does not include an express statement that there is no just reason for delay, we said in Pederson that the order is not final, "regardless of its designation" under Rule 54.02. Id. at 660.
In T.A. Schifsky & Sons and Pederson, we addressed orders that were erroneously certified because the district court did not comply with the textual requirements of Rule 54.02. In T.A. Schifsky & Sons, the district court exceeded its power under the rule, by certifying an order in a single-claim case. See 773 N.W.2d at 788. And in Pederson, the district court likewise exceeded the authority given under the rule because the court failed to make the rule's required express determination. See 326 N.W.2d at 660. The City and the dissent argue that these cases are not helpful to our analysis, however, because here the district court did not violate the plain terms of the rule; rather, the only argument is that the district court abused its discretion in deciding to certify the October 2012 order. The distinction the City and the dissent draw finds some support outside Minnesota. See Lindsay v. Beneficial Reinsurance Co., 59 F.3d 942, 951 (9th Cir.1995) (holding that a district court's failure to include articulated reasons is not a jurisdictional defect and therefore the erroneously certified order still starts the time for appeal).
The Eighth Circuit noted that appellate courts have broad power to determine whether a district court has properly certified an order for immediate review. Id. The court then stated that "[w]hile, technically, the period for taking an appeal begins to run from the time the district court enters final judgment ... if the certification is erroneous, there is, in fact, no proper final judgment from which a party must appeal." Id.; see also Fed. Deposit Ins. Corp. v. Tripati, 769 F.2d 507, 508 (8th Cir.1985) ("[I]f the district court errs in certifying the claim, there is no final judgment from which to appeal, and the affected party must wait until a final judgment is entered on all claims against all parties." (citing Page, 585 F.2d at 338)). In Page, the court determined that the plaintiff's claims were simply different legal theories seeking the same relief, rendering them the same claim for the purpose of Rule 54(b). 585 F.2d at 339. The district court's certification of the Supremacy Clause order, therefore, was erroneous and the plaintiff was able to challenge the court's ruling in an appeal from the final judgment of the due process claim. Id.
Both the Second Circuit and the Idaho Supreme Court follow the rule applied in Page. In Ansam Associates, Inc. v. Cola Petroleum, Ltd., 760 F.2d 442, 445-46 (2d Cir.1985), the Second Circuit held that when a district court failed to explain its reasoning for certifying an order as a final partial judgment under Rule 54(b), "the order was not a sufficient Rule 54(b) certification."
The dissent attempts to distinguish Page, because Page involved a single claim, whereas Contractors Edge pleaded multiple claims. But the Page rule has been applied in cases that involved multiple claims. See, e.g., Tripati, 769 F.2d at 508; Ansam Assocs., Inc., 760 F.2d at 444-45; Watson, 112 P.3d at 793-94. Moreover, the dissent does not articulate why a certification error based on the lack of multiple claims is "materially different" than a multiple-claim case with a certification done in an abuse of discretion. In our view, the better rule is the one that provides that no improperly certified order, no matter the reason for the error, results in an appealable judgment.
Our rule does not, as the dissent asserts, create a new category of "mostly final judgments" and blur a "bright-line" rule. Our rule is clear: if the certification is improper, the resulting judgment is not immediately appealable. Under our rule, therefore, a judgment is either final or it is not final.
The dissent's rule, on the other hand, is hardly the beacon it claims to be. Under the dissent's rule, some orders that are improperly certified under Rule 54.02 result in immediately appealable judgments and some do not. The distinction apparently hinges on an appellate court's determination as to whether the order at issue is "facially valid," a determination that begs as many questions as it answers. See Page, 585 F.2d at 339; (noting that there is no bright-line test for determining whether a case involves multiple claims); see also 10 James W. Moore et al., Moore's Federal Practice § 54.22[2][b] (3d ed.2012) (noting that the determination of whether separate claims exist "is not always easy to resolve").
The purpose behind Rule 54.02 also supports our interpretation. We have recognized that the purpose of Rule 54.02 is "to reduce piecemeal appeals by limiting appeals from judgments that resolve only part of the litigation." T.A. Schifsky & Sons, 773 N.W.2d at 787. The interpretation we adopt is consistent with this purpose because it should incent the parties to resolve uncertainties over a certification at the district court, rather than the court of appeals. If, for example, the required Rule 54.02 language in the order was used by mistake, the parties should bring the issue to the district court's attention and the order can be corrected. See T.A. Schifsky & Sons, 773 N.W.2d at 787 n. 2 (cautioning "district courts against automatically using" Rule 54.02 language). In the circumstance present here, when neither party requested certification, it also would have been advisable for the parties to inquire at the district court as to the basis for the conclusion that certification
In contrast to our approach, the dissent's approach encourages piecemeal appeals by insulating the district court's Rule 54.02 certification from review unless an immediate appeal is taken. See 15A Charles A. Wright et al., Federal Practice and Procedure: Jurisdiction and Related Matters § 3914.7 (2d ed.1992) (encouraging parties who believe that the district court made an improper Rule 54(b) certification to take a "protective appeal" in which they request that the appellate court dismiss that very appeal). Under the dissent's approach, even in the situation before us today, which we hope is unique, when neither party requested a Rule 54.02 certification and the district court gave no reason for its certification, an immediate piecemeal appeal would be necessary. Rather than an immediate appeal in such a situation, the better practice is for parties to pursue the question with the district court in order to resolve uncertainties as to the basis for the court's certification.
Considering our precedent and the purpose behind Rule 54.02, we conclude that an order that is improperly certified under Rule 54.02 does not result in an immediately appealable judgment. Applying that rule here, the October 2012 order did not result in a final partial judgment because the district court abused its discretion in certifying the order. Accordingly, the October 2012 order was not immediately appealable, and we hold that Contractors Edge's appeal from the final judgment in 2014 was timely.
Reversed.
LILLEHAUG, Justice (dissenting).
By the plain words of Minn. R. Civ.App. P. 104.01, subd. 1, the time to appeal from a partial judgment entered as final is 60 days: no ifs, ands, or buts. The deadline starts to run from the entry of judgment if the district court has made an express determination that there is no just reason for delay and has directed the entry of final judgment. The deadline starts to run regardless of whether the district court's express determination was wise or ill-considered. Until today what was a final judgment, for the purpose of appeal and every other purpose, was crystal clear. Because the majority opinion creates a new, murky category of "mostly final" judgments, I respectfully dissent.
Contractors Edge, Inc. sued the City of Mankato in 2010 on claims arising out of a construction project. As is common in construction litigation, there were multiple claims and motions. By 2012, the parties had made motions for summary judgment in the district court, argued an appeal, and returned to the district court. Contractors Edge, Inc. v. City of Mankato, No. A11-916, 2012 WL 118409, at *4 (Minn.App. Jan. 17, 2012), rev. denied (Minn. Mar. 28, 2012).
On remand from the court of appeals, there remained two claims: a contract claim of about $252,000 for extra work; and a statutory claim, under the Prompt Payment Act, Minn.Stat. § 471.425 (2014), for alleged failure to pay retainage.
As directed, the court administrator promptly entered final judgment, as shown on the Register of Actions. The court administrator then sent to counsel a Notice of Filing of Order and Entry of Judgment. The notice advised that "Summary Judgment was entered on October 03, 2012." Counsel received with the notice a copy of the judgment, stating that it had been "ADJUDGED AND DECREED that Judgment is entered" on the City's contract claim.
Contractors Edge did not appeal from the judgment within 60 days. Nor did it seek explanation or clarification from the district court. The record does not explain why no appeal was taken.
More than a year later, the parties settled the remaining statutory claim. The district court entered judgment on January 6, 2014. Less than 60 days later, Contractors Edge appealed from the October 3, 2012, order that had granted summary judgment to the City on the contract claim.
The City moved to dismiss the appeal as untimely. On March 18, 2014, the court of appeals, by order signed by the chief judge, granted the motion. Contractors Edge, Inc. v. City of Mankato, No A14-0223, Order at 3 (Minn. App. filed March 18, 2014). We granted review.
This appeal turns on the meaning of Minn. R. Civ.App. P. 104.01, subd. 1. As we explained recently in Walsh v. U.S. Bank, N.A., 851 N.W.2d 598 (Minn.2014), when interpreting procedural rules, we look first to the plain language of the rule. Id. at 601. When the language is plain and unambiguous, we follow it. Id. There is ambiguity only if the language of the rule is subject to more than one reasonable interpretation. Id.
Rule 104.01, subd. 1, captioned "Time for Appeal," establishes a bright-line rule for appeals from judgments. A judgment is appealable, and must be appealed, within 60 days after its entry. This deadline is jurisdictional. See Jesmer Co. v. Wurdemann-Hjelm Corp., 250 Minn. 485, 488, 85 N.W.2d 207, 209 (1957) ("The limitation of time within which an appeal may be taken is jurisdictional...."). We do not make exceptions to the appellate deadlines for simple attorney negligence, inadvertence,
The second paragraph of Rule 104.01, subd. 1, addresses judgments entered as final under Minn. R. Civ. P. 54.02. It provides:
In other words, under Rule 104.01, when a judgment is entered on fewer than all of the claims, the judgment may or may not be appealable. If the trial court does not make an "express determination that there is no just reason for delay," it is not appealable. But if the trial court makes an "express determination," and expressly directs entry of final judgment, it is appealable. While Rule 104.01 uses the term "may," the 60-day requirement is mandatory; to be timely, the appeal must be taken within 60 days. T.A. Schifsky & Sons, Inc. v. Bahr Constr., LLC, 773 N.W.2d 783, 788 n. 5 (Minn.2009) (60-day appeal requirement in Rule 104.01, subd. 1, is mandatory, not permissive).
Here, the district court granted the motion for summary judgment on one of the two claims and made the express determination required by Rule 104.01, subd. 1, for entry of a final, appealable judgment. The court administrator correctly entered judgment based on the express direction of the district court and gave notice to the parties. Every predicate for finality and appealability was satisfied, so the 60-day deadline for appeal began to run. Thus, applying the plain words of the appellate rule, an appeal from the final judgment of October 3, 2012, was required on or before December 2, 2012, 60 days after the entry of partial final judgment. Contractors Edge waited until January 6, 2014, to appeal. Its appeal was more than a year late.
By failing to read Rule 104.01, subd. 1, straightforwardly, the majority adds a new condition to it. By making appealability of the judgment under the appellate rule conditional on an appellate court's later determination that the trial court properly exercised its discretion pursuant to the underlying civil rule, the majority essentially inserts words into, and thereby rewrites, the appellate rule. Based on the majority holding, Minn. R. Civ.App. P. 104.01, subd. 1, now reads: "An appeal may be taken from a judgment entered pursuant to Rule 54.02, Minnesota Rules of Civil Procedure, within 60 days of the entry of the judgment only if the trial court without abusing its discretion makes an express determination that there is no just reason for delay and expressly directs the entry of a final judgment." (Additions emphasized.)
We do not add words or phrases to unambiguous Minnesota rules. Walsh, 851 N.W.2d at 604. And amending a rule sub silentio is not the usual way we proceed. The majority's decision to make a tacit amendment to an appellate rule — a jurisdictional rule, no less — undermines our long-standing transparency in the rules amendment process.
The case law on which the majority relies in no way requires that our appellate rule be twisted in this way. The Minnesota precedent cited by the majority is easily distinguishable. In T.A. Schifsky, a district
We observed that a district court has no authority to make an express determination unless the lawsuit is based on more than one legal theory or states more than one group of operative facts giving rise to relief. Id. at 787. Noting that attorney fees were "not a separate claim independent of the merits of the action, namely, the validity of the lien and the fair and reasonable value of the lien," we decided that entry of judgment under Rule 54.02 was "unnecessary." Id. at 789. "Nevertheless," we held: "by operation of law that judgment became final and appealable upon its entry. Accordingly, the court of appeals correctly ruled that [the losing party's] appeal of the judgment determining the validity and amount of the liens was not timely." Id.
This case is not T.A. Schifsky, in which the district court directed entry of judgment on all claims under the mistaken rubric of Rule 54.02. In this case, unlike T.A. Schifsky, there is no question (and the majority does not dispute) that the district court directed entry of final judgment on fewer than all of the claims. The common-law contract claim for extra work and the statutory Prompt Payment Act claim for retainage were separate claims for the purpose of Rule 54.02. See Stearns v. Consol. Mgmt., Inc., 747 F.2d 1105, 1108-09 (7th Cir.1984) (explaining that when separate recovery is possible under two claims, those claims are separate under federal Rule 54(b)).
While T.A. Schifsky's reasoning does not control this case, its result — appeal dismissed — sends a clear message directly relevant to this case: if a party has doubts about the appropriateness of, or rationale for, any final judgment, the party fails to appeal or seek clarification at its peril. If Contractors Edge doubted that the entry of judgment was proper, it had two choices: it could have appealed on that ground,
By holding that partial final judgment on fewer than all claims, valid on its face and entered upon the district court's express determination and direction, did not start the time for appeal, the majority declines to follow the great weight of appellate and scholarly authority to the contrary. This line of precedent is completely consistent with the plain meaning of our appellate rule and is directly applicable to the facts of this case.
In Lindsay v. Beneficial Reinsurance Co., 59 F.3d 942 (9th Cir.1995), a partial final judgment, upon express determination and direction, was entered on five common-law claims under Fed.R.Civ.P. 54(b), but summary judgment was denied on the sixth. Id. at 950. Unlike Minnesota (as the majority holds today), the Ninth
Three state supreme courts have considered the time for appeal in cases involving partial final judgments on fewer than all claims in which the express determination was argued to be an abuse of discretion. All three courts agreed with the Ninth Circuit that the appeal deadline runs from entry of judgment, regardless of whether the express determination was an abuse of discretion. See Wallace v. Belleview Props. Corp., 120 So.3d 485, 494 (Ala.2012) ("When the trial court enters a Rule 54(b) certification, there is a facially valid order from which the time for filing a notice of appeal starts to run."); Jacquot v. Rozum, 790 N.W.2d 498, 505 (S.D.2010) (concluding that although the trial court abused its discretion by ordering judgment, the loser "should have appealed" from the judgment, regardless of whether the certification was "right or wrong"); Clark v. Archer, 242 P.3d 758, 761 (Utah 2010) ("[R]ight or wrong, the certification started the appeal clock running. This approach provides clarity for counsel on when to appeal and gives proper presumptive deference to the orders of trial courts.").
Not only do the Ninth Circuit and the supreme courts of Alabama, South Dakota, and Utah agree, so do commentators. Moore's treatise on civil procedure speaks to the precise situation here: "A Rule 54(b) judgment begins the running of the time to appeal regardless of the propriety of the entry of that judgment. In other words, whether or not the court abused its discretion in entering judgment is irrelevant to the parties' obligation to timely appeal." 10 James W. Moore et al., Moore's Federal Practice § 54.26[1] (3d ed.2012) (emphasis added). "An aggrieved party must appeal a Rule 54(b) judgment within the time permitted ... and may not seek review of the judgment after the remaining claims have been adjudicated." Id. The Wright treatise on federal procedure similarly indicates that time for appeal of a judgment certified under Rule 54(b) should be measured from the entry of judgment, as long as the court provides an express determination that there is no just reason for delaying review:
10 Charles A. Wright et al., Federal Practice and Procedure § 2654 (3d ed.1998) (emphasis added).
Instead of following this strong authority, the majority relies on Eighth Circuit precedent, Page v. Preisser, 585 F.2d 336 (8th Cir.1978), that is materially different from this case because it involved the certification of a single claim, id. at 339, just like our T.A. Schifsky case. Judgment was entered on one of two constitutional theories despite the fact that the complaint "arose out of a single transaction and asserted only a single claim." 585 F.2d at 339. As a result, the district court had no authority to invoke Rule 54(b). Id. By
The other cases cited by the majority help hardly at all. For example, Watson v. Weick, 141 Idaho 500, 112 P.3d 788 (2005), turned primarily on peculiarities in Idaho R. Civ. P. 54(b). The Idaho district court ran afoul of two provisions of Idaho's rule that have no counterpart in Minnesota: (1) the express determination and direction must appear on the judgment itself, not just on the order for judgment; and (2) when there are claims and counterclaims, there "shall" be a single judgment reflecting offsetting amounts. The "abuse of discretion" language in Watson relates to the latter peculiarity. See id. at 793-94. Finally, by citing Ansam Associates, Inc. v. Cola Petroleum, Ltd., 760 F.2d 442 (2d Cir.1985), the majority relies on a case premised on disagreement with the majority's first holding: that an express determination and direction followed by entry of judgment need not be supported by a written explanation. See id. at 445 (requiring an articulated, reasoned explanation for a Rule 54(b) certification).
In sum, the majority's holding is contrary to the plain language of the rule and applicable authority. The majority has created for Minnesota a new category of "mostly final" judgments: final judgments valid on their face that can be miraculously resuscitated for appeal after the time for review has expired.
Because I read Minn. R. Civ.App. P. 104.01, subd. 1, to be clear and unambiguous, I am under no obligation to discuss the implications of the majority's erroneous creativity. But I feel compelled to do so, because the harmful results are easily foreseeable.
Until now, a final judgment, valid on its face, entered in a Minnesota court upon express determination and direction but not appealed was truly final. It was final, not just to the litigants involved, but to the world. It was final for accrual of judgment interest, for a judgment lien, for execution on the judgment, and for the doctrine of res judicata. It could not be undone except for a limited number of very good and substantial reasons. See Minn. R. Civ. P. 60 (relief from judgment or order).
By holding that a final judgment valid on its face can be appealed and undone even after the time to appeal has expired, the majority creates a great deal of confusion. What the court of appeals had assumed to be a bright line
Parties, attorneys, lower courts, and businesses that rely on facially valid judgments,
The majority asserts that its holding will discourage piecemeal appeals. Instead, it will encourage litigation over late appeals. The majority's new "mostly final" judgment category creates a "danger of hardship and denial of justice through delay if each issue must await the determination of all issues as to all parties before a [truly] final judgment can be had," Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511, 70 S.Ct. 322, 94 L.Ed. 299 (1950).
I need not reach, and the majority did not have jurisdiction to reach, the question of whether the district court abused its discretion in making its express determination and direction. I need not reach, and the majority should not have reached, whether the proper remedy for the district court's lack of explanation is reversal or a remand to the district court to explain its reasoning. Because this appeal was untimely by more than a year, I would affirm the court of appeals' decision to dismiss it.
STRAS, Justice (dissenting).
I join in the dissent of Justice Lillehaug.