Kifer v. School District No. 394

PER CURIAM. This appeal must be dismissed for noncompliance with I.R.C.P. 54(b). Only the defendant school district moved for and was granted summary judgment. The complaint named three defendants: the school district; the teacher, Stephen Stanley; and Phillip Stanley, the superintendent of the school district. Judgment of dismissal was entered only in favor of defendant school district. The necessary certification is not present in the appeal record, and hence this Court is without jurisdiction. The motion for summary judgment was heard on December 10, 1976, at which time, according to the court minutes, the ruling of the trial court was that the motion was granted. Thereafter a judgment was prepared by counsel for defendant school district, submitted for signature and entered on January 4, 1977. [412] Such a judgment was clearly within the following language of I.R.C.P. 54(b), which then provided: “In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims.” Dawson v. Mead, 98 Idaho 1, 557 P.2d 595 (1976) serves well to illustrate the even-handedness of the rule. There a motion for summary judgment was granted, and the trial court, following trial on the merits, did precisely what the rule contemplates may be done. Where the summary judgment was not final by reason of there being no certification that the court expressly determined that there was no reason for delay and no express direction for the entry of the judgment, “the summary judgment was subject to revision” and it was revised by the district court, affirmed on appeal. In Merchants, Inc. v. Intermountain Industries, Inc., 97 Idaho 890, 556 P.2d 366 (1976) there was no certification, and the Court specifically pointed out that there was no suggestion that either party requested certification, although the appellant there might have so requested it in order to lay a foundation for its appeal and the respondent might have done so in order to activate the running of appeal time. In Intermountain, supra, the Court quoted from Gerry v. Johnston, 85 Idaho 226, 378 P.2d 198 (1963): “ ‘Under our rules and in the furtherance of orderly administration of justice it is necessary that the trial court make a specific finding that there is no just reason for delay and thereafter expressly direct entry of judgment. Failure to observe this rule precludes the judgment from being final.’ 85 Idaho at 230, 378 P.2d at 201.” 97 Idaho at 892, 556 P.2d at 368. It was further stated in Intermountain that the appellant was in no way prejudiced by the dismissal since, as thereafter did happen in Dawson v. Mead, supra, the dismissal “is not a final judgment, [and] it remains ‘subject to revision at any time before the entry of judgment adjudicating all the claims.’ I.R.C.P. 54(b).” Intermountain, 97 Idaho at 893, 556 P.2d at 369. The Court has acted consistently in dismissing partial final dispositions for lack of certification, and has also dismissed where the Court concluded certification was improperly granted. Pichon v. L. J. Broekemeier, Inc., 99 Idaho 598, 586 P.2d 1042 (1978). The most recent cases dismissing are Long v. Goodyear, 100 Idaho 183, 595 P.2d 717 (1979), and Gleason v. Lavaterra, No. 12669, dismissed by order on June 4, 1979. Appeal dismissed. No costs allowed.