Roy v. Neibauer I

Can You Appeal a Partial Summary Judgment in Montana? Roy v. Neibauer, 188 Mont. 81 (1980)

Boland Aarab PLLP

Usually not right away. In Roy v. Neibauer (Roy I), 188 Mont. 81, 610 P.2d 1185 (1980), the Montana Supreme Court dismissed an appeal from a summary judgment that resolved the claims against only one of two defendants, because the district court had not certified the judgment as final under Rule 54(b). The Court then set out the factors that trial courts must weigh, and explain, before certifying a partial judgment for immediate appeal. Montana courts still apply those factors, often called the “Roy factors.”

Key Takeaways

• A judgment that leaves the liability of any defendant undecided cannot be appealed unless the court expressly makes it final on a determination that there is “no just reason for delay” (Roy, 188 Mont. at 83; M.R.Civ.P. 54(b)).
• Certification is for the “infrequent harsh case.” It should not be granted “routinely or as a courtesy or accommodation to counsel” (at 85).
• The trial court must do more than “recite the magic words.” It must “clearly articulate the reasons and factors” behind a certification (at 86).
• The Court listed five factors to weigh, including the relationship between the decided and undecided claims and the risk of piecemeal review (at 87).

In this case sheet: At a glance · What the Court held · What changed · Rules · When it applies · How hard · Related law and later decisions · FAQ

The practice Tom Boland built is the practice that handles your case today. Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

At a glance

What did the Montana Supreme Court hold in Roy v. Neibauer?

Background. A father, individually and as guardian ad litem for his young daughter, sued his landlord, Walter Neibauer, and the tenant next door, John Carlson. He alleged that they negligently allowed Carlson’s dog to bite the child in the front yard of the duplex (188 Mont. at 82–83). The district court granted summary judgment to the landlord, holding he had no duty to remove his tenant’s dog. The claim against the dog’s owner remained pending (at 83). The plaintiff appealed.

The holding. The appeal was premature. A judgment “which leaves undetermined the liability of one or more of the defendants cannot be appealed unless it is expressly made final” under Rule 54(b). The plaintiff “made no attempt at all” to obtain certification, so the appeal was dismissed without prejudice (at 83).

The rules the Court set out. Noting “the recurring problems this Court has faced with relation to piecemeal appeals” (at 82), the Court drew on federal decisions to state the governing principles:

• Rule 54(b) balances “the undesirability of piecemeal appeals” against the need for timely review. Certification is discretionary, but it should not be “lightly entered” (at 85).
• The burden is on the party seeking certification to show that the case is the “infrequent harsh case.” The trial court has an independent duty to avoid piecemeal appeals, even if no one objects (at 86).
• The court must “clearly articulate the reasons and factors underlying its decision,” so the appellate court can tell well-grounded orders from “mere boilerplate” (at 86).
• The factors (at 87, quoting Singer Housing Co. v. Seven Lakes Venture, 466 F. Supp. 369 (D. Colo. 1979)):
• the relationship between the adjudicated and unadjudicated claims;
• whether future developments in the district court might moot the need for review;
• whether the reviewing court might have to consider the same issue a second time;
• whether a claim or counterclaim could produce a setoff against the judgment;
• miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, triviality of competing claims, and expense.

What happened next. After the plaintiff dismissed the claims against the dog’s owner, the case returned to the Court, which affirmed summary judgment for the landlord in Roy v. Neibauer, 191 Mont. 224, 623 P.2d 555 (1981) (Roy II). Tom Boland again represented the landlord.

What did Roy change in Montana law?

Roy turned a line of dismissals into a stated framework. The Court did not invent the factors; it adopted them from federal case law (at 85–87). But Roy became the Montana source for them, and they are widely known as the “Roy factors.”

The framework is now part of Montana’s written rules:

• Rule 54(b)(2), M.R.Civ.P., requires any Rule 54(b) certification to comply with M.R.App.P. 6(6).
• Rule 6(6) requires the district court to “balance the competing factors” and to “articulate in its certification order the factors upon which it relied,” “in accordance with existing case law.” That language tracks Roy (at 86–87).

The Court’s 2007 order adopting the revised Rules of Appellate Procedure cites Roy. Later Montana Supreme Court decisions applying it include Bell Marra v. Sullivan, 2003 MT 56; Kohler v. Croonenberghs, 2003 MT 260; Monroe v. Cogswell Agency, 2006 MT 319; Satterlee v. Lumberman’s Mutual Casualty Co., 2007 MT 325; Grenz v. Montana DNRC, 2011 MT 17; and Rogers v. Lewis & Clark County, 2020 MT 230.

Which Montana laws and rules apply?

• Rule 54, M.R.Civ.P.: judgment on multiple claims or involving multiple parties. Rule 54(b)(2), added in later amendments, cross-references Appellate Rule 6(6).
• Rule 6, M.R.App.P.: appealable orders. Rule 6(5)(a) makes partial judgments non-appealable, and Rule 6(6) governs certification. In 1980 the Court cited the former Rule 1, M.R.App.Civ.P. (at 83).
• Rule 56, M.R.Civ.P.: summary judgment
• Federal Rule of Civil Procedure 54, on which Montana’s rule was modeled (at 84), and Sears, Roebuck & Co. v. Mackey, 351 U.S. 427 (1956) (at 86)

When might Roy apply to you?

• An injury case with several defendants. If the court dismisses one defendant, such as a property owner, employer or insurer, before trial, that ruling usually cannot be appealed until the whole case is finished unless the court certifies it under Rule 54(b).
• You are asked to agree to certification. Agreement is not enough. The judge must independently weigh the factors and explain them (at 86).
• You want to appeal quickly. A premature appeal will be dismissed, costing time and money, even if the other side never objects (at 83–84).

How hard is it to get an early appeal in Montana?

It is meant to be hard:

• Rule 54(b) certification is reserved for the “infrequent harsh case,” and the party seeking it carries the burden (188 Mont. at 85–86).
• The certification decision is discretionary. An order that only recites “no just reason for delay,” without reasons, will not stand (at 86). Today such an order is “subject to summary dismissal” under M.R.App.P. 6(6).
• The Court put the duty to spot finality problems on the parties as well. In Roy, neither side had raised the issue, and the Court reminded lawyers to bring premature appeals to its attention by motion (at 84, 88).

Related law and later decisions

Statutes and rules

• Rule 54, M.R.Civ.P.: judgment on multiple claims or parties. It has been amended; Rule 54(b)(2) now requires compliance with M.R.App.P. 6(6).
• Rule 6, M.R.App.P.: appealable orders and certification. It was adopted in 2007, effective October 1, 2007, and amended in 2011. It replaced former Rule 1, M.R.App.Civ.P., which the Court cited in 1980.
• Rule 56, M.R.Civ.P.: summary judgment

Later decisions citing this case

• Bell Marra v. Sullivan, 2003 MT 56
• Kohler v. Croonenberghs, 2003 MT 260
• In re Marriage of Armstrong, 2003 MT 277
• Monroe v. Cogswell Agency, 2006 MT 319
• In re Rules of Appellate Procedure, 2007 MT 334
• Satterlee v. Lumberman’s Mutual Casualty Co., 2007 MT 325
• Grenz v. Montana DNRC, 2011 MT 17
• Rogers v. Lewis & Clark County, 2020 MT 230

The Boland Aarab Way

Thomas E. Boland represented the landlord, Walter Neibauer, in both Roy appeals. The first ended in dismissal and the second in an affirmance. Tom was admitted in 1974 and practiced in Great Falls from 1979. In 2017 his daughter, Caitlin Boland Aarab, and Samir F. Aarab founded Boland Aarab PLLP as the successor to his practice. More than four decades later, the procedural rule this case produced still shapes multi-party litigation in Montana, including the serious trucking and injury cases and catastrophic injury cases we handle today, where the timing of an appeal can matter as much as its merits.

Frequently Asked Questions

Can I appeal when the court dismisses only one defendant in Montana? Usually not until the case is over. A judgment that leaves another defendant’s liability undecided is not final unless the court certifies it under Rule 54(b) (Roy, 188 Mont. at 83).

What are the “Roy factors”? Five considerations the Court listed for Rule 54(b) certification. They are: the relationship between decided and undecided claims; possible mootness; the risk of reviewing the same issue twice; possible setoffs; and miscellaneous factors such as delay, expense and solvency (at 87).

Is it enough for the judge to say there is “no just reason for delay”? No. The court must “clearly articulate the reasons and factors” behind the certification, not just “recite the magic words” (at 86; see M.R.App.P. 6(6)).

Work With the Practice Behind These Cases

Boland Aarab is a Great Falls trial firm built on the practice Tom Boland began. The same attorneys who brief and argue before the Montana Supreme Court handle our clients’ serious injury, trucking and wrongful-death cases from the first call. Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

About Boland Aarab PLLP: Boland Aarab PLLP is a Great Falls, Montana trial firm. Its attorneys, Caitlin Boland Aarab and Samir F. Aarab, have appeared in more than 40 matters before the Montana Supreme Court and have argued twice before the U.S. Court of Appeals for the Ninth Circuit. The firm carries on the Great Falls practice Thomas E. Boland began in 1974. Meet our attorneys.

Sources:

• Roy v. Neibauer, 188 Mont. 81, 610 P.2d 1185 (1980) (CourtListener PDF)
• Reported opinion with page numbers (Caselaw Access Project)
• Roy v. Neibauer, 191 Mont. 224, 623 P.2d 555 (1981) (CourtListener PDF)
• Rule 54, M.R.Civ.P.
• Rule 6, M.R.App.P.
• Rule 56, M.R.Civ.P.
• Fed. R. Civ. P. 54
• Sears, Roebuck & Co. v. Mackey, 351 U.S. 427 (1956)

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Reading it does not create an attorney-client relationship.