In Re State & Regents Building Asbestos Cases , 435 N.W.2d 521 ( 1989 )

AMDAHL, Chief Justice.

We granted the petition of W.R. Grace & Co. to review an order of the court of appeals dismissing its direct appeal and denying its two alternative petitions for discretionary review of an order of the trial court vacating portions of an earlier partial summary judgment entered and made final by operation of Minn.R.Civ.P. 54.02. We reverse and remand.

The State of Minnesota commenced this action in March 1985 against various manufacturers of asbestos-containing building materials to recover damages allegedly caused by the presence of asbestos in buildings owned by plaintiffs. After extensive discovery, the trial court directed plaintiffs to identify the specific buildings alleged to contain the hazardous materials and, for each, the type and manufacturer of any asbestos found therein. On October 1, 1987, the trial court granted defendants’ motions for partial summary judgment, thereby defining the buildings, products and manufacturers to participate in the action. The trial court directed the entry of this partial summary judgment in accordance with Minn.R.Civ.P. 54.02.

No appeal was taken within the time authorized, but approximately six months later, the state moved the trial court pursuant to Minn.R.Civ.P. 60.02 to vacate that judgment in part to add a newly disclosed building. The court granted the motion, vacated the judgment in part and amended it to allow for the inclusion of another building affected by the presence of asbestos. Grace filed a notice of appeal from that order of the trial court and, alternatively, petitioned the court of appeals for discretionary review. The direct appeal was dismissed and the discretionary petitions were denied. In doing so, the court reasoned that since the deletion of former clause (d) of Minn.R.Civ.App.P. 103.03 in August 1983, there is no provision which authorizes an appeal “from an order involving the merits of the action or some part thereof.” ¹ We do not share that view.

It is our view that the order is appealable as of right. As we have commented on many prior occasions, an order vacating an appealable final judgment is appealable itself. Moberg v. Moberg, 347 N.W.2d 791, 794 (Minn.1984) (quoting with approval from People’s Ice Co. v. Schlenker, 50 Minn. 1, 2, 52 N.W. 219, 219 (1892)). The fact that the judgment here vacated was a partial summary judgment is of no consequence where, as here, the trial court expressly directed its entry pursuant to Minn.R.Civ.P. 54.02. Thus making it final.

Historically, former clause (d) caused considerable uncertainty in its interpretation and application because its language was so broad as to seemingly authorize an appeal in any conceivable circumstance, 1.e., at any time the merits of an action were involved. This court was convinced at the time it deleted the clause that appellate practice would be better served by eliminating such a broad authorization, nevertheless preserving the right of direct appeal in those limited instances where the appeal arises from principles independent of the appellate rules. See, e.g., Hunt v. Nevada State Bank, 285 Minn. 77, 172 N.W.2d 292 (1969) (order granting or denying a pretrial motion to dismiss for lack of jurisdiction is appealable as of right without regard or reference to the Rules of Civil Appellate Procedure). The court of appeals has not consistently following this principle.

We therefore conclude that, based upon prior decisional authority, the court of appeals erred in dismissing the appeal because the order vacating an appealable final judgment is appealable as of right. Such a right derives not from procedural rules but from fundamental principles attending the finality of judgments. As a practical matter, allowing an appeal at this stage of the proceedings is critical where, as here, the parties affected by the order had expected that the expiration of the time for appeal fully defined the parameters of the litigation; not only are principles of judicial economy promoted, but also the affected parties are afforded review prior to participating in any further proceedings necessitated by the trial court’s order.² We therefore reverse that portion of the order of the court of appeals dismissing the appeal and remand the matter to that court for review on the merits.

REVERSED AND REMANDED.

COYNE, J., took no part.

1 . The court of appeals has demonstrated its continued confusion over the deletion of former clause (d). Compare Miller v. City of St. Paul, 363 N.W.2d 806, 809 (Minn.App.1985); with NFD, Inc. v. Stratford Leasing Company, 427 N.W.2d 757 (Minn.App.1988).

2 . See Anderson v. City of Hopkins, 393 N.W.2d 363 (Minn.1986) (order denying summary judgment appealable where motion for summary judgment based on claim of immunity from suit).