Another Rule 54(b) problem.

The Robinsons sued to establish an implied (Count One of the Complaint) and prescriptive (Count Two) easement to use a road over the Kay’s property. Both parties moved for summary judgment on Count One; the trial court ruled for the Kays and entered a judgment which, by stipulation, included Rule 54(b) language. The Robinsons appealed.

The Court of Appeals, on its own motion, dismissed the appeal. “Easements by prescription and implication are separate legal ‘theories’ supporting the existence of an easement; they do not in themselves constitute separate ‘claims.’” And “when a judgment merely disposes of one or more legal theories supporting a single claim, ‘Rule 54(b) language does not make the judgment final and appealable.’”

One would have thought that with Count Two still hanging out there the Robinsons would have spotted the problem. If they did but decided that the prescriptive-easement claim wasn’t worth pursuing, the answer in that situation is to take a lesson from the criminal side and remember that sometimes you have to dismiss things to set up your appeal.

On the other hand, Rule 54(b) problems are (depressingly) common and the Court of Appeals tends to deal with them by suspending the appeal until the paperwork can get cleaned up. Perhaps – since everything the parties did was consistent with the idea that the Robinsons didn’t want to proceed with Count Two, and since their lawyers are supposed to know what they’re doing, and since if that’s right then the appeal will have to be re-filed as soon as the parties can dismiss Count Two, and since this opinion says that the court is concerned about piecemeal appeals –  the court could have entered an order giving the parties ten days to dismiss Count Two or the appeal would be dismissed. (Our vote would be to dismiss all these appeals, since lawyers might then actually bother to do things right, but we’re not holding our breath.)

(link to opinion)