Mann v. ND Tax Comm'r

692 N.W.2d 490

2005 ND 36

Joan MANN, Ken Danks d/b/a TEK Industries, Tracy Wilkie, Christa Monette, and other persons similarly situated, Plaintiffs, Appellants and Cross-Appellees v. ND TAX COMMISSIONER, Rick Clayburgh, Defendant, Appellee and Cross-Appellant and ND Treasurer, Kelly Schmidt, Defendant.

No. 20040174.

Supreme Court of North Dakota.

February 16, 2005.

Vance Gillette, Minot, N.D., for plaintiffs, appellants and cross-appellees.

Daniel Lucian Rouse (argued), and Robert W. Wirtz (appeared), Special Assistant Attorneys General, Tax Department, Wayne K. Stenehjem (on brief), Attorney General, Office of Attorney General, Bismarck, N.D., for defendant, appellee, and cross-appellant.

KAPSNER, Justice.

[¶ 1] Joan Mann, Ken Danks, doing business as TEK Industries, Tracy Wilkie and Christa Monette ("plaintiffs") appealed from a district court order denying reconsideration of an earlier memorandum opinion and order, and from that earlier memorandum opinion and order dismissing all named plaintiffs except Danks from their action against the State Tax Commissioner and the State Treasurer ("State") seeking a permanent injunction barring imposition of state motor vehicle fuels excise taxes on Native Americans in certain North Dakota Indian reservations and seeking a refund of the taxes already paid. The State cross-appealed from the order denying reconsideration of the district court's earlier memorandum opinion and order holding the State may not impose the motor vehicle fuels excise tax on Native Americans in those Indian reservations and issuing a permanent injunction prohibiting collection of the taxes on the reservations. The State also cross-appealed from findings of fact, conclusions of law and order for judgment declaring the tax illegal when imposed on Native Americans in those reservations. Under the circumstances, we conclude we do not have jurisdiction to consider the appeals. We further conclude the exercise of our supervisory jurisdiction is not appropriate under the circumstances. We dismiss the appeals.

I

[¶ 2] The plaintiffs are Native Americans. Mann is a member of the Three Affiliated Tribes, owns Mann Enterprises, and lives on the Fort Berthold Indian Reservation. Danks is also a member of the Three Affiliated Tribes, owns TEK Industries, and lives on the Reservation. Wilkie and Monette are members of the Turtle Mountain Band of Chippewa Indians and reside on the Turtle Mountain Reservation.

[¶ 3] In August 2003, the plaintiffs sued the State under federal and state law seeking a declaration that it is illegal for the State to impose the 21 cent motor vehicle fuels tax under N.D.C.C. ch. 57-43.1 on fuel they purchased on their respective reservations and demanding a refund of the taxes they had already paid. They also sought to have the action certified as a class action. The State moved to dismiss, alleging insufficient service of process and lack of compliance with the notice-of-claim provision, N.D.C.C. § 32-12.2-04. The plaintiffs moved for declaratory and injunctive relief and requested a permanent injunction barring imposition of the motor vehicle fuels tax on their reservations. The State responded and argued that the motor vehicle fuels tax could lawfully be imposed on the plaintiffs' Indian reservations under the terms of the Hayden-Cartwright Act, 4 U.S.C. § 104. On January 12, 2004, the district court, in a memorandum opinion and order, rejected the State's argument that the tax was authorized by the Hayden-Cartwright Act, ruled "[a]s a matter of law, the motor fuels tax imposed pursuant to N.D.C.C. § 57-43.1-02 is declared by the Court to be illegally imposed on Native Americans who reside on North Dakota Indian reservations and purchase motor fuel on reservation lands," and granted a permanent injunction prohibiting "collection of the illegal motor fuels tax." The district court dismissed the plaintiffs' federal claims and dismissed, without prejudice, all of the plaintiffs from the action except Danks because he had claimed a refund of taxes paid from the State and was "the only Plaintiff who has complied with N.D.C.C. § 32-12-03." The court reserved the questions on class certification and refunds until a later date.

[¶ 4] On January 23, 2004, the State moved for "reconsideration" of the court's January 12 order, arguing it was "denied the opportunity to file an Answer to the Original Complaint" and was "not given an opportunity to address the merits of their case before the Court." The State also sought a stay of the court's order pending appeal. On January 27, 2004, the plaintiffs also filed a motion for reconsideration challenging the dismissal of the federal claims and of all plaintiffs except Danks. They also moved for refunds and for certification of the class action. On April 29, 2004, the court denied the State's motion for reconsideration, but granted its request for a stay pending appeal. The court also denied the plaintiffs' motion for reconsideration and postponed determination of refunds and class certification. The court consolidated its rulings in "findings of fact, conclusions of law and order for judgment" dated April 29, 2004, and filed on May 7, 2004. Although the document concludes, "LET JUDGMENT BE ENTERED ACCORDINGLY," no judgment has been entered.

[¶ 5] The plaintiffs appealed from the April 29 order denying their motion for reconsideration and from the January 12 memorandum opinion and order dismissing all plaintiffs except Danks. The State cross-appealed from the April 29 order denying its motion for reconsideration and from that part of the April 29 findings, conclusions and order for judgment declaring the tax was illegally imposed.

II

[¶ 6] We must address the appealability of the district court's orders. Although the State does not challenge the plaintiffs' right to appeal, the plaintiffs argue this Court lacks jurisdiction over the State's appeal.

[¶ 7] The right of appeal is governed solely by statute in this state, and without any statutory basis to hear an appeal, we must take notice of the lack of jurisdiction and dismiss the appeal. State v. Gohl, 477 N.W.2d 205, 207 (N.D.1991). In Dietz v. Kautzman, 2004 ND 164, ¶ 6, 686 N.W.2d 110, we said:

This Court must have jurisdiction before we can consider the merits of an appeal. Kostrzewski v. Frisinger, 2004 ND 108, ¶ 8, 680 N.W.2d 271. In Gast Constr. Co., Inc. v. Brighton P'ship, 422 N.W.2d 389, 390 (N.D.1988) (citations omitted), this Court set forth the two-part test for determining whether jurisdiction over an appeal exists:

First, the order appealed from must meet one of the statutory criteria of appealability set forth in NDCC § 28-27-02. If it does not, our inquiry need go no further and the appeal must be dismissed. If it does, then Rule 54(b), NDRCivP, must be complied with. If it is not, we are without jurisdiction.

[¶ 8] Only judgments and decrees which constitute a final judgment of the rights of the parties to the action and orders enumerated by statute are appealable. Lang v. Bank of Steele, 415 N.W.2d 787, 789 (N.D.1987). An order which "grants, refuses, modifies, or dissolves an injunction or refuses to modify or dissolve an injunction" is appealable under N.D.C.C. § 28-27-02(3). Under N.D.R.Civ.P. 54(b), a district court has authority to enter a final judgment adjudicating fewer than all of the claims or the rights and liabilities of fewer than all of the parties upon "express determination that there is no just reason for delay" and upon "express direction for the entry of judgment." See Klagues v. Maintenance Eng'g, 2002 ND 59, ¶ 28, 643 N.W.2d 45. This Court has held that, if there are unadjudicated claims remaining in the district court, an order granting an injunction generally must be certified as final under N.D.R.Civ.P. 54(b) before an appeal may be taken. See, e.g., Rose Creek Dev. Corp. v. Plaza Dev. Group, Inc., 514 N.W.2d 368, 369-70 (N.D.1994). However, compliance with N.D.R.Civ.P. 54(b) is not necessary if the injunctive features of the appealed order "serve an active rather than incidental purpose" and affect fundamental interests of the litigants. Fargo Women's Health Org. v. Lambs of Christ, 488 N.W.2d 401, 406 (N.D.1992).

A

[¶ 9] In this case, the State appealed from that part of the April 29 findings, conclusions and order for judgment declaring the motor vehicle fuels tax could not be imposed on the plaintiffs' Indian reservations and from the April 29 order denying reconsideration of the prior January 12 memorandum opinion and order granting the permanent injunction. This Court has long held that an order for judgment, as distinguished from the judgment itself, is not an appealable order under N.D.C.C. § 28-27-02. See, e.g., Haugenoe v. Bambrick, 2003 ND 92, ¶ 1 n. 1, 663 N.W.2d 175; Brown v. Will, 388 N.W.2d 869, 870 (N.D.1986); Kilzer v. Binstock, 339 N.W.2d 569, 571 (N.D.1983); Piccagli v. North Dakota State Health Dep't, 319 N.W.2d 484, 486 (N.D.1982); Shrock v. Roy, 111 N.W.2d 703, 704 (N.D.1961); In re Eaton, 7 N.D. 269, 273, 74 N.W. 870, 871 (1898). An order for judgment is not appealable because it is not included in the appealable orders specified in N.D.C.C. § 28-27-02, Kilzer, 339 N.W.2d at 571, and merely serves as the authority for entry of an appealable judgment. In re Weber, 4 N.D. 119, 120, 59 N.W. 523 Syll. 3 (1894). Because an order for judgment requires the subsequent entry of judgment to give it effect, In Interest of R.A.S., 321 N.W.2d 468, 470 (N.D.1982), the district court may change the terms of the order for judgment before judgment is entered. Lee v. Gulf Oil Exploration and Prod. Co., 318 N.W.2d 766, 768 (N.D.1982). A final judgment or order is also necessary for appealability in an injunction action. See Magrinat v. Trinity Hosp., 540 N.W.2d 625, 627 (N.D.1995); Selland v. Selland, 494 N.W.2d 367, 368 (N.D.1992); see also KFGO Radio, Inc. v. Rothe, 298 N.W.2d 505, 507 (N.D.1980) (involving appeal from...