Allison v. Engel , 395 P.3d 1217 ( 2017 )

COLORADO COURT OF APPEALS 2017COA43
Court of Appeals No. 15CA1886
Yuma County District Court No. 12CV43
Honorable Michael K. Singer, Judge
Stephen L. Allison and Barry R. Allison,
Plaintiffs-Appellants and Cross-Appellees,
v.
Frank Engel and Mary Engel,
Defendants-Appellees and Cross-Appellants.
APPEAL AND CROSS-APPEAL DISMISSED
Division II
Opinion by JUDGE J. JONES
Dailey and Berger, JJ., concur
Announced April 6, 2017
Haynes and Boone, LLP, John D. Fognani, Robert P. Thibault, Denver,
Colorado, for Plaintiffs-Appellants and Cross-Appellees
The Halliburton Law Firm, L.L.C., Samantha L. Halliburton, Denver, Colorado,
for Defendants-Appellees and Cross-Appellants
¶1 C.R.C.P. 54(b) allows a district court to enter a final judgment
on one claim in a multiple claim case, thereby allowing an
immediate appeal of that judgment, but only if certain requirements
are met. One of those requirements is that there is “no just reason
for delay.” To give due force to the strong policy against piecemeal
appeals, a district court must apply this requirement (as well as the
others) with caution, and only where doing so is justified by reasons
that clearly outweigh the concerns animating that policy. We
therefore hold that to satisfy the requirement of no just reason for
delay, a district court must give reasons for certification showing
that unless the judgment on the claim is certified as final, a party
would experience some hardship or injustice through delay that
could be alleviated only by an immediate appeal.
¶2 In this case, which pits neighboring landowners against each
other, the district court certified a default judgment on one of
several counterclaims — one for unjust enrichment — as final,
purportedly to “avoid duplicative efforts” (presumably, multiple
trials) and to get “a clear sense of direction” from the appellate court
as to “the propriety of [the] . . . default judgment and related
issues.” These reasons, considered individually or together, do not
1
show a danger of hardship or injustice to any party that could be
alleviated only by allowing an immediate appeal. It follows that the
district court abused its discretion in determining that there was no
just reason for delay. It further follows that the district court
improperly certified its default judgment on the unjust enrichment
counterclaim as final, and therefore we lack jurisdiction over the
appeal.
I. Background
¶3 The history of this case is rather complicated, but bear with
us.
¶4 The Allisons own parcels of property on either side of a parcel
owned by the Engels. But the Allisons and Engels differ as to the
precise boundaries of their neighboring parcels, and for a number
of years they have had disagreements and run-ins primarily over a
pair of water wells (one drilled in 1976 and the other drilled in
1995) located on one of the Allisons’ parcels.
¶5 The Allisons filed a complaint against the Engels asserting two
claims for trespass and one for a declaration of “the parties’
respective rights, obligations, ownership, use and charges related
to” the 1995 well. The trespass claims allege that the Engels built a
2
fence on the Allisons’ land without their permission, and that the
Engels have trespassed on the Allisons’ other parcel, resulting in
“destruction” of a portion of that parcel.
¶6 On July 25, 2013, the Engels filed both their answer to the
complaint and counterclaims. They deny trespassing on either of
the Allisons’ parcels because, they allege, they’ve obtained both
disputed tracts by adverse possession. In response to the Allisons’
declaratory judgment claim, the Engels allege that (1) the previous
owner of the Allisons’ property granted them an easement to drill a
water well, to install pipes delivering well water to their property,
and for access to the well; (2) they drilled the well in 1976 and used
it continually thereafter; (3) a replacement water well was drilled in
1995; (4) they installed water lines from the replacement well to the
first well to enable them to get water from the replacement well; (5)
the Allisons allowed others to attach water lines to the Engels’ water
lines; and (6) since 1976, they’ve paid all electric bills associated
with use of the wells. They too ask for a declaration of the parties’
rights and obligations relating to the water and the wells.
¶7 The Engels also assert several counterclaims. The first seeks
a declaration quieting title of both disputed tracts. The second
3
alleges that the Allisons have been unjustly enriched by the Engels’
payment of all electric bills associated with operation of the wells
and of all costs to repair the wells. The third alleges intentional
infliction of emotional distress resulting from confrontations
between the parties. And the fourth asserts that Mr. Allison has
created a “private nuisance” by interfering with the Engels’ use of
and access to the wells and by trespassing on their property.
¶8 Rather than replying to the Engels’ counterclaims, the Allisons
filed a motion for partial summary judgment on September 30,
2013, the last day of an extension the court had previously granted
the Allisons to answer or otherwise respond to the counterclaims.
The motion sought summary judgment on only two of the Engels’
allegations — that they have a “senior water right” in the 1995
replacement well and that they have an easement for access to that
well. The Allisons did not answer or otherwise respond to any other
aspect of the Engels’ counterclaims.
¶9 One week later, the Engels filed a motion for default judgment
on their counterclaims based on the Allisons’ failure to answer or
otherwise respond except as in the motion for partial summary
4
judgment. By rule, the Allisons had until October 28, 2013, to
respond to that motion. They didn’t meet that deadline.
¶ 10 Consequently, the district court, noting the Allisons’ failure to
respond, granted the Engels’ motion for default judgment in part.
The court entered default judgment in the Engels’ favor on all four
of their counterclaims and awarded them damages of $32,114.05.1
The court certified the default judgment as final under Rule 54(b),
though no party had asked for such a certification.2
¶ 11 Later that same day, the Allisons filed their response to the
motion for default judgment and a motion under C.R.C.P. 60 to set
aside the default judgment. They asserted, incorrectly, that their
response wasn’t due until October 29, and so the court shouldn’t
have entered default judgment. Much procedural wrangling
ensued.
¶ 12 As now relevant, the Engels responded to the Allisons’ Rule 60
motion, arguing that the Allisons’ counsel had simply miscalculated
the response date and that the Allisons had been obligated to
answer the counterclaims because they had addressed only two
1 The court denied the Engels’ request for an award of attorney fees.
2 The court’s order said only that there was “no just reason for
delay.”
5
“very narrow issues” relating to one of the counterclaims in their
motion for partial summary judgment. Before filing a reply in
support of their Rule 60 motion, the Allisons filed an answer to the
counterclaims on November 7, 2013, which the Engels
subsequently moved to strike. In their Rule 60 reply, the Allisons
belatedly acknowledged that their counsel had miscalculated the
due date for their response to the Engels’ motion for default
judgment. Nonetheless, they argued that they weren’t required to
answer or otherwise respond to the counterclaims because they had
filed a dispositive motion — the aforementioned motion for partial
summary judgment. The Engels moved to strike this new
argument. In the midst of all this, the parties completed briefing on
the Allisons’ motion for partial summary judgment.
¶ 13 On December 30, 2013, the court entered an order setting
aside the default judgment in part. The court ruled that the
Allisons hadn’t shown any excusable neglect for failing to timely
answer the counterclaims. But because the motion for partial
summary judgment could “fairly be read as contesting at least some
of the underlying factual allegations concerning the water wells,”
the court said it had erred in awarding damages on the Engels’
6
intentional infliction of emotional distress and nuisance
counterclaims. The court left intact the remainder of the default
judgment.
¶ 14 After the Allisons filed additional motions under Rules 59 and
60 further attacking the default judgment, the court held a hearing
on the Engels’ quiet title counterclaim. (Before the hearing, the
court granted the Allisons’ motion for partial summary judgment
only on the issue whether the Engels had a “senior water right.”)
Because the court concluded that there was a factual dispute as to
whether the Engels had adversely possessed the two tracts at issue,
it set aside the default judgment on the quiet title counterclaim.
¶ 15 The Allisons appealed. The Engels cross-appealed. This court
ordered the parties to show cause why the appeal should not be
dismissed for lack of a final, appealable order. The Allisons
responded that there had been a proper Rule 54(b) certification; the
Engels asserted (as they had in their notice of cross-appeal) that
there wasn’t a final, appealable order. A motions division of this
court dismissed the appeal and cross-appeal.
¶ 16 Undeterred, the Allisons asked the district court for a new
Rule 54(b) certification, arguing that the court’s rulings on the post-
7
default judgment motions had “clarifi[ed]” the “scope” of the default
judgment. They also argued that allowing an immediate appeal
would
 provide the court and the parties, “in the shortest time, a
binding decision that would provide a definite appellate
answer as to the surviving applicability of the default
judgment, in whole or part,” thereby enabling the parties
to focus on the claims and counterclaims to be tried and
avoid the “distraction” of “unresolved appellate outcomes
on key claims and issues”;
 be “judicially efficient because it would simply displace a
later appeal of the default judgment as part of an appeal
of an entire case”;
 somehow eliminate the prospect of a second trial that
otherwise would have to occur in the event the default
judgment were reversed in a later appeal; and
 increase the possibility of settlement by clearing up the
“uncertainty about the ultimate outcome of the scope of
the default judgment as to the [remaining]
counterclaims.”
8
¶ 17 The Engels opposed the motion. They argued that because the
Allisons had not timely appealed from the first Rule 54(b)
certification, they should not get a second bite at the appellate
apple. They also argued that an immediate appeal would result
merely in further unwarranted delay in resolving the case.
¶ 18 The court granted the Allisons’ request. It reasoned only that
certification would “avoid duplicative efforts,” and that by allowing
the court of appeals to address the propriety of the default
judgment, “once trial is conducted concerning the merits, the
parties and the court will have a clear sense of direction in terms of
issues to be considered at that point in the case.”
¶ 19 Once again, the Allisons appealed and the Engels cross-
appealed. And once again, a motions division of this court ordered
the parties to show cause why the appeal shouldn’t be dismissed for
lack of a final, appealable order. The Allisons responded, but the
Engels (who had said in their notice of cross-appeal that the district
court should not have again certified the default judgment as final)
didn’t. The motions division dismissed the appeal and cross-appeal
as to the Engels’ quiet title counterclaim for lack of finality, but it
9
said the appeal could proceed as to the default judgment on the
unjust enrichment counterclaim.
¶ 20 The case was subsequently assigned to this division. After
reading the parties’ appellate briefs and the record, we became
concerned about whether the district court had properly certified
the default judgment on the unjust enrichment counterclaim as
final under Rule 54(b). So we ordered the parties to file
supplemental briefs addressing whether the unjust enrichment
counterclaim is a separate claim for purposes of Rule 54(b) and
whether there is no just reason for delay of an appeal pertaining
solely to that counterclaim.
¶ 21 We’ve considered the parties’ responses. Because we’re not
persuaded that there is “no just reason for delay,” as that
requirement is properly construed, we dismiss the appeal and
cross-appeal.
II. Applicable Law and Standard of Review
¶ 22 We must determine independently our jurisdiction over an
appeal, nostra sponte if necessary. People v. S.X.G., 2012 CO 5, ¶
9; Meridian Ranch Metro. Dist. v. Colo. Ground Water Comm’n, 240
P.3d 382, 385 (Colo. App. 2009). And we are not bound by a
10
motions division’s determinations of that issue. First Comp Ins. v.
Indus. Claim Appeals Office, 252 P.3d 1221, 1222 n.1 (Colo. App.
2011); FSDW, LLC v. First Nat’l Bank, 94 P.3d 1260, 1262 (Colo.
App. 2004).
¶ 23 Generally speaking, the court of appeals has jurisdiction only
over appeals from final judgments. § 13-4-102(1), C.R.S. 2016;
C.A.R. 1(a); Harding Glass Co. v. Jones, 640 P.2d 1123, 1125 & n.2
(Colo. 1982). Rule 54(b), however, provides an exception to this
rule. Harding Glass, 640 P.2d at 1125, 1126. Thus, our
jurisdiction over an appeal from an order the district court has
certified as final under Rule 54(b) depends on the correctness of
that certification. E. Cherry Creek Valley Water & Sanitation Dist. v.
Greeley Irrigation Co., 2015 CO 30M, ¶ 12; Harding Glass, 640 P.2d
at 1126.
¶ 24 A certification under Rule 54(b) is correct only if (1) the
decision certified is a ruling on an entire claim for relief; (2) the
decision is final in that it ultimately disposes of the individual
claim; and (3) the district court determines expressly that there is
no just reason for delay in entering a final judgment on the claim.
E. Cherry Creek Valley Water & Sanitation Dist., ¶ 11; Lytle v. Kite,
11
728 P.2d 305, 308 (Colo. 1986). The party seeking certification has
the burden to establish that those requirements are satisfied.
Braswell Shipyards, Inc. v. Beazer E., Inc., 2 F.3d 1331, 1335 (4th
Cir. 1993).
¶ 25 We review de novo the legal sufficiency of a district court’s
Rule 54(b) certification. E. Cherry Creek Valley Water & Sanitation
Dist., ¶ 12; Richmond Am. Homes of Colo., Inc. v. Steel Floors, LLC,
187 P.3d 1199, 1203 (Colo. App. 2008). Similarly, we may “fully
review[]” a district court’s determinations as to the first two
requirements because such determinations are “not truly
discretionary.” Harding Glass, 640 P.2d at 1125. But we look at
the district court’s determination that there is no just reason for
delay differently. Because the district court is “most likely to be
familiar with the case and with any justifiable reasons for delay,”
Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437 (1956),3 we
review a district court’s determination of no just reason for delay
3 Because the federal rule and C.R.C.P. 54(b) are virtually identical,
“case law interpreting the federal rule is persuasive in analysis of
the Colorado rule.” Harding Glass Co. v. Jones, 640 P.2d 1123,
1125 n.3 (Colo. 1982); see also Warne v. Hall, 2016 CO 50, ¶¶ 15-
17 (discussing the desirability of applying Colorado procedural rules
in substantial conformity with their federal counterparts).
12
only for an abuse of discretion. Lytle, 728 P.2d at 308, 309; accord
Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 10 (1980);
Harding Glass, 640 P.2d at 1125. A district court abuses its
discretion when its ruling is manifestly arbitrary, unreasonable, or
unfair, or based on an erroneous view of the law. People v. Elmarr,
2015 CO 53, ¶ 20.4
III. Analysis
A. Entire Claim for Relief
¶ 26 Determining whether a particular claim constitutes an entire
claim for relief for Rule 54(b) purposes is not as easy as simply
looking at the labels in a party’s pleading. A pleading asserting a
single legal right states but one claim, even if the claimant seeks
multiple remedies for the violation of that right. Harding Glass, 640
P.2d at 1126. On the other hand, claims are separate “when more
than one recovery is possible and when a judgment on one claim
4 In Harding Glass, the court said that a court abuses its discretion
in this context only if its decision was “clearly unreasonable.” 640
P.2d at 1125 (quoting Curtiss-Wright Corp. v. Gen. Elec. Co., 446
U.S. 1, 10 (1980)). We don’t believe that in doing so the court
intended to adopt a standard different from that ordinarily
articulated. After all, manifestly erroneous and clearly erroneous
would appear to be the same. See Carrillo v. People, 974 P.2d 478,
485 (Colo. 1999) (“abuse of discretion,” “clear abuse of discretion,”
and “gross abuse of discretion” all mean the same).
13
would not bar a judgment on the other claims.” Richmond Am.
Homes, 187 P.3d at 1203.
¶ 27 The parties in this case argue that, although there is some
factual overlap in the proof of the unjust enrichment counterclaim
and the other claims, the unjust enrichment counterclaim is an
entire claim for relief because recovery on that claim does not
depend on how any other claim is resolved. More specifically,
resolving the unjust enrichment counterclaim does not depend on
who owns the disputed tracts, whether the Engels are guilty of
trespass, or whether Mr. Allison’s alleged behavior was tortious.
¶ 28 The problem with the parties’ argument, however, is that each
has asserted declaratory judgment claims (which remain pending)
asking the court to determine the parties’ respective rights in the
wells, including who is responsible for costs associated with those
wells. So it may be that the unjust enrichment counterclaim is
essentially subsumed in the declaratory judgment claims, even
though those claims seek different remedies. Cf. Gerardi v. Pelullo,
16 F.3d 1363, 1370 (3d Cir. 1994) (expressing doubt that unjust
enrichment claim was a separate claim for Fed. R. Civ. P. 54(b)
14
purposes because it was arguably a “lesser-included aspect[]” of
other claims).
¶ 29 We needn’t decide this tricky issue, however, because we
conclude that the third requirement for certification — that there is
no just reason for delay — isn’t met in this case, as discussed
below.
B. Finality
¶ 30 Assuming the district court’s default judgment on the unjust
enrichment counterclaim is a ruling on an entire claim, there is no
question that the decision is final. The ruling determines both
liability and damages. See Lytle, 728 P.2d at 309 (a ruling
determining liability and damages that left nothing for the court to
do but execute on the judgment was final); Harding Glass, 640 P.2d
at 1127 (observing that where the issue of damages is reserved,
there is no final judgment).
C. No Just Reason for Delay
¶ 31 “In deciding whether there are just reasons to delay an appeal
of an individual final judgment, a district court must take into
account the interests of judicial administration, as well as the
equities involved.” Lytle, 728 P.2d at 309; accord Curtiss-Wright,
15
446 U.S. at 8.5 Consideration of the needs of sound judicial
administration is necessary to further the historic policy against
piecemeal appeals, a policy Rule 54(b) was intended to preserve.
Curtiss-Wright, 446 U.S. at 8; Sears, Roebuck & Co., 351 U.S. at
438; see Harding Glass, 640 P.2d at 1127; see also Linnebur v. Pub.
Serv. Co. of Colo., 716 P.2d 1120, 1123 (Colo. 1986) (“To avoid
piecemeal review, final judgments must meet the requirements of
C.R.C.P. 54(b).”); 15A Charles Alan Wright, Arthur R. Miller &
Edward H. Cooper, Federal Practice and Procedure § 3907 (2d ed.
1992) (discussing in depth the purposes of the final judgment rule).
¶ 32 Nonetheless, Rule 54(b) allows for an early appeal “to avoid the
possible injustice of a delay in entering judgment on a distinctly
separate claim” that can result from modern rules of pleading
allowing liberal joinder of claims and parties. 10 Charles Alan
Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and
Procedure § 2654, at 30 (4th ed. 2014); accord 10 James Wm. Moore
et al., Moore’s Federal Practice § 54.21[1] (3d ed. 2015). But given
5 We acknowledge that our task is “not to reweigh the equities or
reassess the facts but to make sure that the conclusions derived
from those weighings and assessments are juridically sound and
supported by the record.” Curtiss-Wright Corp., 446 U.S. at 10.
16
the strong policy against piecemeal appeals, district courts
shouldn’t make Rule 54(b) certifications routinely, even in
multiclaim or multiparty cases. Nor should courts certify rulings as
an accommodation to counsel. Braswell Shipyards, 2 F.3d at 1335;
Burlington N. R.R. Co. v. Bair, 754 F.2d 799, 800 (8th Cir. 1985) (per
curiam); see Curtiss-Wright, 446 U.S. at 10 (“Plainly, sound judicial
administration does not require that Rule 54(b) requests be granted
routinely.”). District courts should instead be reluctant to enter
Rule 54(b) orders since the purpose of the rule is limited to avoiding
undue hardship resulting from a delay in allowing an appeal. Okla.
Tpk. Auth. v. Bruner, 259 F.3d 1236, 1242 (10th Cir. 2001); see also
Gerardi, 16 F.3d at 1373 (“[A] district court should be conservative
in invoking Rule 54(b) . . . .”); Morrison-Knudsen Co. v. Archer, 655
F.2d 962, 965 (9th Cir. 1981) (Certification “must be reserved for
the unusual case in which the costs and risks of multiplying the
number of proceedings and of overcrowding the appellate docket are
outbalanced by pressing needs of the litigants for an early and
separate judgment as to some claims or parties.”).
¶ 33 And so, in recognition of the need to limit certifications
appropriately, the federal courts, in applying Fed. R. Civ. P. 54(b),
17
have held that to satisfy the requirement that there is no just
reason for delay, a party seeking certification (or a court certifying a
ruling on its own motion) must show that a party will suffer some
hardship or injustice that can be alleviated only by an immediate
appeal. E.g., Huggins v. FedEx Ground Package Sys., Inc., 566 F.3d
771, 774 (8th Cir. 2009); Braswell, 2 F.3d at 1335; Hogan v. Consol.
Rail Corp., 961 F.2d 1021, 1025 (2d Cir. 1992); see also 10 Moore’s
Federal Practice § 54.23[1][b], at 54-64; 10 Federal Practice and
Procedure § 2659, at 104-05. Given that the Colorado judicial
system shares the federal courts’ disdain for piecemeal appeals,
that standard also should govern certifications under Colorado’s
Rule 54(b).
¶ 34 We observe that although Colorado case law addressing the
meaning of no just reason for delay is scant, what little there is
appears to adhere substantially to the narrow approach taken by
the federal courts. In Lytle, for example, the supreme court held
that the district court didn’t abuse its discretion in finding no just
reason for delay where the claims against one party that were
subject to the judgment certified weren’t interrelated with the
claims against the other party (in the sense that either party was a
18
necessary party to an action against the other) and nine years had
elapsed between the injury giving rise to the claims and the entry of
the certified judgment. 728 P.2d at 309.
¶ 35 In Messler v. Phillips, 867 P.2d 128 (Colo. App. 1993), the
division found no abuse of discretion in certifying all of the
plaintiff’s claims against the defendant, despite pending cross-
claims by the defendant against a third party, because the plaintiff
was an elderly woman and her claims had been pending for several
years. Id. at 132.
¶ 36 And in Georgian Health Center, Inc. v. Colonial Painting, Inc.,
738 P.2d 809 (Colo. App. 1987), the division found no abuse of
discretion where there had been an earlier appeal of the dispute
(involving a lessor and lessee), there was no dispute as to the
amount that had been wrongfully paid to the lessor, and the lessor
had wrongfully held the lessee’s money for many years. Id. at 811.
¶ 37 We turn, then, to the facts of this case and ask whether the
court’s reasons for finding no just reason for delay show that the
Allisons will suffer some hardship or injustice unless they are able
to appeal now the default judgment on the Engels’ unjust
enrichment counterclaim. They don’t.
19
¶ 38 As discussed, the district court gave two reasons for
concluding that there was no just reason for delay: (1) “avoid[ing]
duplicative efforts”6 and (2) obtaining “a clear sense of direction in
terms of the issues to be considered” at trial.
¶ 39 We construe the first reason as a concern that there would
have to be a trial on the unjust enrichment counterclaim if the
default judgment is reversed on appeal; an appellate decision on
that judgment now would enable all claims to be tried in a single
trial. In other words, if there is no appeal of that judgment now,
but only an appeal after all claims have been resolved, and the
appellate court reverses the default judgment while affirming the
judgments on the other claims, there will have to be a later trial on
the unjust enrichment counterclaim alone.
¶ 40 But this reason is plainly insufficient to justify certification
because the same could be said about any case involving multiple
claims or parties as to which a dispositive ruling is entered on one
claim, or as to one party, before trial. Huggins, 566 F.3d at 774
6 It isn’t clear whether the court referred to avoiding duplicative
efforts as a reason justifying immediate appeal. But we’ll assume
that it did. It also isn’t clear if the court intended to give two
reasons or merely one. We’ll assume that it intended two reasons.
20
(holding that the potential for multiple trials does not support
certification); Hogan, 961 F.2d at 1025-26 (same). As the Hogan
court observed, the appropriate course for a district court to take if
it wants to minimize the likelihood of a retrial is to take care in
granting judgment before trial, “not to ask for an interim opinion
from the court of appeals, thereby forcing successive appellate
panels to review the case.” 961 F.2d at 1026.
¶ 41 We construe the second reason as a desire for guidance from
this court on an issue as to which the district court is perhaps
unsure. This reason appears to be closely related to the first in that
the “direction” the district court seeks would enable it to best
determine what claims need to be tried.
¶ 42 This reason is also plainly insufficient to justify certification.
It’s simply not a proper function of Rule 54(b) certification to
assuage a district court’s doubts about its decision or to provide
“guidance” in the resolution of claims. Taco John’s of Huron, Inc. v.
Bix Produce Co., 569 F.3d 401, 402 (8th Cir. 2009) (“We do not
doubt that our resolution of this appeal would provide guidance to
the parties and the court below. But the possibility that an early
intervention might be helpful does not amount to the kind of
21
justification for exercising jurisdiction that our relevant cases
require.”); see Hogan, 961 F.2d at 1025-26 (district court’s desire
for appellate ruling on whether it had correctly assessed the state of
the evidence did not justify certification); Harding Glass, 640 P.2d
at 1127 (the appellate court is not “a type of ‘advisory board’”
(quoting Cole v. Peterson Realty, Inc., 432 A.2d 752, 756 (Me.
1981))).
¶ 43 The Allisons nonetheless assert that there is no just reason for
delay because “precluding [them] from having their day in court on
the Engels’ unjust enrichment counterclaim is simply inequitable
under the circumstances here.” But the “inequitable
circumstances” they assert are limited to the purported error in
entering default judgment. They do not cite any authority for the
proposition that the merits of the certified decision matter in
determining whether there is no just reason for delay. Nor have we
found any.
¶ 44 For their part, the Engels (who previously asserted that the
certification was improper), responded to our order to show cause
by urging us to consider the appeal and cross-appeal because
22
briefing is complete.7 But our jurisdiction depends on the
correctness of the certification, and the stage of the proceeding at
which jurisdiction is in question is irrelevant to that issue. We
simply cannot exercise jurisdiction merely as a matter of
convenience.
¶ 45 In sum, the district court didn’t give legally sufficient reasons
for finding that there is no just reason for delay. The court’s
reasons, considered singularly or together, don’t show that any
party will suffer hardship or injustice unless an immediate appeal
of the default judgment on the single counterclaim is allowed. We
therefore conclude that the district court abused its discretion, and
that we lack jurisdiction.
IV. Conclusion
¶ 46 The appeal and cross-appeal are dismissed.
JUDGE DAILEY and JUDGE BERGER concur.
7 At oral argument, however, the Engels’ counsel took the position
that the requirements for certification weren’t satisfied.
23