No. 04-229
IN THE SUPREME COURT OF THE STATE OF MONTANA
2005 MT 309
RAYMOND JOHN BRADLEY, Personal Representative for the
Estate of STEPHEN E. BRADLEY, d/b/a Native
American Indian Design,
Plaintiff and Respondent,
v.
CROW TRIBE OF INDIANS,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone, Cause No. DV 2000-0980,
The Honorable Susan P. Watters, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Urban J. Bear Don’t Walk, Crow Legal Department, Crow Agency, Montana
For Respondent:
Thomas E. Towe, Towe, Ball, Enright, Mackey & Sommerfield, PLLP,
Billings, Montana
Submitted on Briefs: January 11, 2005
Decided: December 9, 2005
Filed:
__________________________________________
Clerk
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Justice John Warner deliv ered the Opinion of the Court.
¶ 1 The Crow Tribe of Indians (Tribe) appeals from a November 12, 2003, judgment
filed in the District Court for Yellowstone County. The judgment is based on an order of the
D istrict Court which reinstated a prior judgment of February 15, 2002, which granted
s ummary judgment to Bradley’s predecessor personal representative, Sarah Bradley. The
current personal representativ e is Raymond John Bradley, and both the predecessor and
current personal representativ e are referred to as “Bradley.” We reverse and remand for
further proceedings.
¶ 2We restate the issue on appeal as follows:
¶ 3Did the District Court err when it reinstated the February 15, 2002, Judgment in favor
of Bradley?
I. FACTUAL AND PROCEDURAL BACKGROUND
¶ 4Most of the facts of this already protracted litigation are stated in Bradley v. Crow
Tribe of Indians , 2003 MT 82, 315 Mont. 75, 67 P.3d 306, ( Bradley I ). Those facts stated
in Bradley I that are relevant to this appeal are summarized as follows:
¶ 5Bradley sued the Tribe alleging it breached an employment c ontract with him and
failed to pay him as provided by contract. The Tribe moved to dismiss the action on grounds
that the District Court lack ed personal and subject matter jurisdiction due to the Tribe's
sov ereign immunity. The District Court denied the Tribe's motion to dismiss, concluding
t hat applicable law perm itted Indian tribes to be sued in state courts for causes of action
arising from “commercial activities” carried on in the United States, and that the alleged
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contract prov ision was a waiver of the Tribe’s sovereign immunity. However, the District
Court reserv ed the right to readdress the issue of subject matter jurisdiction.
¶ 6Later, Bradley moved for summary judgment. The Tribe failed to respond to
Bradley’s m otion, and for this reason the District Court granted Bradley’s motion on
February 5, 2002, and entered judgment in his favor on February 15, 2002, in the amount of
$113,972.79.
¶ 7On March 12, 2002, the Tribe moved to either alter or amend the February 15, 2002,
judg ment under Rule 59(g), M.R.Civ.P., or in the alternative to set aside the judgment under
Rule 60(b), M.R.Civ.P. The tribe said that its prior counsel had failed to notify the Tribe of
B radley’s motion for summary judgment and, as a result, the Tribe had not filed a timely
brief in opposition to the m otion. The Tribe also argued that the District Court should set
aside the judg ment because the District Court’s order on which it was based addressed
s overeign immunity and whether the District Court had the subject matter jurisdiction to
enforce the term s of the alleged contract. This motion was timely under Rule 60(b),
M.R.Civ.P.
¶ 8The District Court ordered a hearing on the Tribe’s motion to set aside the judgment
of February 15, 2002, and 87 days after the motion was filed, on June 7, 2002, granted relief
under Rule 60(b), M.R.Civ.P., in favor of the Tribe, dismissing the lawsuit in its entirety.
Bradley appealed, resulting in the decision in Bradley I .
¶9In Bradley I , this Court addressed and decided the issue of whether the District Court
erred when it dismissed Bradley’s claim because the Tribe had not unequivocally waived its
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im munity from suit in state court. The Court concluded the District Court did err when it
dism issed Bradley’s complaint for lack of subject matter jurisdiction and determined that the
undisputed ev idence established two things: (a) a valid contract existed between Bradley and
t he Tribe; and (b) in such contract, the Tribe unequivocally waived its right to sovereign
immunity. Bradley I , ¶ 22. Accordingly, the District Court’s order dismissing Bradley’s
com plaint for lack of jurisdiction was reversed, and this case was remanded to the District
Court for further proceedings. Bradley I , ¶ 22.
¶ 10The saga continued upon remand to the District Court. Bradley moved for Entry of
Judg ment in his favor. He argued that the summary judgment of February 15, 2002, should
be reinstated. On November 12, 2003, the District Court granted Bradley’s Motion for Entry
of Judg ment, and ordered the summary judgment of February 15, 2002, reinstated. On
Nov ember 20, 2003, judgment was again entered in favor of Bradley and against the Tribe
in the am ount of $113,972.79, together with interest from February 15, 2002. The District
Court did not r ule on the Tribe’s motion to alter or amend judgment within the 60 days
prov ided by Rule 60(c), M.R.Civ.P., and it was deemed denied. The Tribe now appeals the
Nov ember 20, 2003, judgment.
¶11Bradley’s initial motion for summary judgment prayed for a judgment in his favor that
the Tribe was liable to him on all issues raised, damages plus interest for an invoice he had
subm itted to the Tribe, and the remainder of the funds held by the Tribe on the contract in
question. The motion stated that the matter of consequential damages would remain to be
subm itted to the trier of fact. The District Court did enter judgment as demanded by
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B radley, including interest and costs. In his Affidavit in S upport of Calculation of
Prejudg ment Interest filed on February 15, 2002, Bradley claimed that his “total damages and
prejudg ment interest” amounted to $113,972.79, and the District Court’s Judgment entered
on February 15, 2002, awarded him this exact amount. After remand, in his motion to
reinstate th e February 15, 2002, judgment, Bradley made no prayer for any additional
dam ages. Nor were any awarded. Bradley has made no motion to dismiss this appeal as the
judg ment in his favor is not complete and final. He does not pray that the case be remanded
t o assess additional, consequential, damages. He seeks only to have the District Court
judg ment affirmed.
II. STANDARD OF REVIEW
¶ 12The District Court order of November 12, 2003, in effect, is a grant of summary
judg ment to Bradley. Our standard of review for a District Court’s order granting summary
judgment is de novo, using the same Rule 56, M.R.Civ.P., criteria applied by the District
Court. Abraham v. Nelson, 2002 MT 94, ¶ 9, 309 Mont. 366, ¶ 9, 46 P.3d 628, ¶ 9. We look
to the pleading s, depositions, answers to interrogatories, admissions on file, and affidavits
to determ ine the existence or nonexistence of ge nuine issues of material fact. Erker v.
Kester, 1999 MT 231, ¶ 17, 296 Mont. 123, ¶ 17, 988 P.2d 1221, ¶ 17.
¶ 13Summary judgment is an extreme remedy which should be granted only when there
is no g enuine issue as to any material fact and the moving party is entitled to judgment as a
m atter of law. Lee v. USAA Casualty Insurance Co., 2001 MT 59, ¶ 25, 304 Mont. 356, ¶
25, 22 P.3d 631, ¶ 25. “The party seeking summary judgment, therefore, has the burden of
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dem onstrating a complete absence of any genuine factual issues.” Lee, ¶ 25. “The party
seek ing summary judgment also must overcome the burden that all reasonable inferences that
m ight be drawn from the offered evidence will be drawn in favor of the party opposing
sum mary judgment.” Lee, ¶ 25.
¶ 14Where the moving party is able to demonstrate that no genuine issue as to any
m aterial fact remains in dispute, the burden shifts to the party opposing the motion. Lee,
26. “This burden shift requires that the opposing party present material and substantial
ev idence, rather than merely conclusory or speculative statements, to raise a genuine issue
of m aterial fact.” Lee, ¶ 26.
¶ 15This Court has routinely stated that the purpose of summary judgment is to eliminate
unnecessary trials, but that summary adjudication “should never be substituted for a trial if
a m aterial factual controversy exists.” Boyes v. Eddie, 1998 MT 311, ¶ 16, 292 Mont. 152,
¶ 16, 970 P.2d 91, ¶ 16.
III. DISCUSSION
¶16 Did the District Court err when it reinstated the February 15, 2002, Judgment
in favor of Bradley?
¶ 17In granting Bradley’s Motion for Entry of Judgment, and in reinstating the February
15, 2002, judgment, the District Court concluded as a matter of law that even though it had
been established by this Court that a v alid contract existed between the parties and Montana
Courts had jurisdiction over the controversy, it did not have jurisdiction to hear any of the
issues raised in the Tribe’s orig inal Motion to Alter, Amend or Set Aside the February 15,
1
The Tribe’s Rule 59, M.R.Civ.P., motion to alter or amend the February 15,
2002, judgment was untimely, and thus cannot be, and is not, considered.
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2002, judgment. The District Court reasoned that, prior to the appeal in Bradley I , it had lost
j urisdiction over the February 15, 2002, judgment b ecause it did not rule on the Tribe’s
m otion to set it aside within the 60 days provided by Rule 60(c), M.R.Civ.P. Therefore, the
m otion was deemed denied. The District Court concluded that the reversal in Bradley I left
the judgment of February 15, 2002, in place. It further concluded that it could not change
that judg ment, because the time within which it could do so had expired prior to the time it
entered its now rev ersed order of June 7, 2002. Thus, the February 15, 2002, judgment must
stand and the District Court had no way to reconsider it.
¶ 18The Tribe points out that the reason all of the issues raised in its motion to set aside
the jud gment of February 2, 2002, were not addressed by the District Court prior to the
appeal in Bradley I is because the District Court decided that it did not have jurisdiction to
hear any part of the case. The Tribe argues that once this Court concluded on appeal that the
District Court did hav e jurisdiction to hear the case and remanded for further proceedings,
the District Court was required to reconsider its February 15, 2002, judgment, and it was
error not to do so.
¶ 19Bradley argues that the District Court was correct. He points out the following: (1)
the Tribe did not appeal the February, 15, 2002, judgment; (2) it did not appeal the deemed
denial of its motion to set aside the judgment;
1
and (3) it did not cross-appeal the denial of
its m otion to set aside when he appealed the June 7, 2002, order dismissing this case. Thus,
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h e argues that when the case was returned to the District Court, it had no choice but to
reinstate the February 15, 2002, judgment. He further argues that the Tribe cannot now
appeal on the m erits its motion to set that judgment aside.
¶ 20Our instructions to the District Court upon remand of this case were that the District
Court had jurisdiction to hear the case because a v alid contract existed between Bradley and
the Tribe in which the Tribe unequivocally waived sovereign immunity. Accordingly, the
case was rem anded to the District Court for “further proceedings.” Bradley I , ¶ 22. Bradley
ig nores the fact that if the District Court could do nothing but re-enter judgment in favor of
Bradley, there was no reason for this Court to remand the case.
¶ 21A somewhat analogous case on this point is State ex rel. United States F. & G. Co.
v. Dist. Ct. (1926), 77 Mont. 594, 251 P. 1061. In that case, this Court had to consider a
prev ious ruling it had made. In the previous ruling, this Court “did not order a new trial or
the tak ing of additional evidence, but reversed and remanded the cause to the lower court.”
State ex rel. United States F. & G. Co. , 77 Mont. at 608, 251 P. at 1065. There was no
m ention of the necessity of “further proceedings.” We explained that the District Court, in
response to the ruling , only had the authority “to make a judicial declaration that the plaintiff
was not entitled to recov er from the defendant and to dismiss the cause upon the merits.”
State ex rel. United States F. & G. Co. , 77 Mont. at 608-09, 251 P. at 1065. In essence, this
Court had explained in the prev ious ruling what the District Court was to do, and it was error
for the District Court to do otherwise. Similarly, in the present case, this Court in Bradley
I instructed the District Court that it was to hold “further proceedings.” Thus, although it
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accepted argument on Bradley’s motion to enter judgment, the District Court did not hold
further proceeding s on the merits of the case, and thus was in error.
¶ 22On remand of a case, “the trial court may consider or decide any matters left open by
the appellate court, and is free to make any order or direction in further progress of the case,
not inconsistent with the decision of the appellate court, as to any question not presented or
settled by such decision.” Zavarelli v. Might (1989), 239 Mont. 120, 125-26, 779 P.2d 489,
493. It is not automatic that upon reversal of a District Court order dismissing a lawsuit that
the case rev erts back to the procedural point it was at immediately before the reversed order.
¶ 23The District Court concluded in its now reversed judgment of June 7, 2002, that
because a sig ned copy of the agreement had not been produced, it was not sufficient to
ov ercome the presumption against a waiver of immunity and dismissed the action for lack
of jurisdiction. In its order, the District Court addressed only the Tribe’s immunity from suit.
A t no point in this litigation has the District Court considered the merits of the issues raised
by the Tribe in support of its Rule 60(b), M.R.Civ.P., motion. The Tribe’s Rule 60(b),
M. R.Civ.P., motion was timely, and the District Court held a hearing on the motion. Still,
it did not enter its order within the 6 0 days given by Rule 60(c), M.R.Civ.P. That time
expired Monday, May 13, 2002. The Tribe then had thirty days to appeal this denial.
Howev er, in these singular circumstances, an appeal became unnecessary before this thirty-
day period had expired. The District Court’s order of June 7, 2002, granted the Tribe
com plete relief by dismissing the action.
¶ 24Bradley argues that, nevertheless, the Tribe should have appealed the denial of its
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m otion under Rule 60(b), M.R.Civ.P., relying on Plotkin v. Pac. Tel. and Tel. Co. (1982),
688 F.2d 1291. Plotkin is inapposite, however, because the District Court in Plotkin
rem ained consistent with its rulings. This is unlike the present case, where the District Court
set aside its prev ious ruling. In this case, the Tribe would be effectively deprived of its right
to appeal the District Court’s denial of its Rule 60(b), M.R.Civ.P., motion if we were to
affirm the District Court’s judgment of November 20, 2003.
¶ 25We further conclude, based on our de novo review of the record, that the deemed
denial of the Tribe’s Rule 60(b), M.R.Civ.P., motion to set aside the judgment of February
15, 2002, was error.
¶ 26There is no provision in Rule 56, M.R.Civ.P., for entry of a summary judgment by
default. Summary judgment may not be entered against a party only because they did not
respond to the m otion, or did not show up at the hearing. Still, where the moving party is
able to dem onstrate that no genuine issue as to any material fact remains in dispute, the
burden shifts to the party opposing the motion. Lee, ¶ 26. Thus, if Bradley, as the moving
party, had presented sufficient evidence to show that there were no material facts in issue,
and he was entitled to judgment as a matter of law, and the Tribe did not appear and rebut
such ev idence, Bradley would be entitled to summary judgment. In connection w ith the
February 15, 2002, summary judgment, the District Court noted that it had reviewed
Bradley’s brief and other docum ents in support of his motion for summary judgment, and
said “ good cause appearing” before granting Bradley’s motion for summary judgment. The
District Court als o noted that the Tribe failed to either respond to Bradley’s motion for
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sum mary judgment or appear at the hearing on this motion.
¶ 27However, the evidence in the record back in February of 2002 did raise a genuine
issue of m aterial fact as to whether the contract could be terminated merely by giving thirty
days written notice, as well as for cause. The contract in question, which was in the record,
contained a term ination clause which reads in pertinent part:
This A GREEMENT may be terminated for convenience
on 30 day’s (sic)
written notice, or for cause if either party fails substantially to perform through
n o fault of the other and does not commence correction of such
nonperform ance within five days of written notice and diligently complete the
correction thereafter.
The contract was drafted by Bradley and the term “for convenience” was stricken from the
term ination clause and initialed by Bradley. The change was not initialed by anyone from
the Tribe. It cannot be determined from the contract alone if the change in the termination
clause was agreed to by the Tribe, since the only copy of the contract that we have for review
is one that Bradley had in his possession, and that copy has not been signed by the Tribe.
A lso, even with the change, the amended termination clause provides for termination on “30
day’s (sic) written notice, or for cause.”
¶ 28Contractual provisions should be interpreted according to their plain, ordinary
meaning. Ophus v. Fritz , 2000 MT 251, ¶ 23, 301 Mont. 447, ¶ 23, 11 P.3d 1192, ¶ 23.
When the lang uage of the contract is clear and unambiguous, a court is to apply the language
as written. Ophus , ¶ 23. However, the contract in question here is subject to different
interpretations, and is therefore ambiguous. Tvedt v. Farmers Ins. Group of Cos. , 2004 MT
125, ¶ 24, 321 Mont. 263, ¶ 24, 91 P.3d 1, ¶ 24. When a contract is ambig uous, a factual
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question exists and the finder of fact must determine what it means by considering the
intention of the parties. Section 28-3-306(1), MCA; Carelli v. Hall (1996), 279 Mont. 202,
209, 926 P.2d 756, 761; Klawitter v. Dettmann (1994), 268 Mont. 275, 281, 886 P.2d 416,
420. In this case, a genuine issue of material fact exists as to whether the Tribe properly
term inated Bradley, and summary judgment is precluded.
¶ 29A genuine issue of material fact also exists as to the damages that should be awarded
to Bradley should he prev ail. If one party breaches a contract, judicial enforcement of the
contract ensures the non-breaching party receives expectancy damages, compensation equal
to what that party would receive if the contract were performed. Arrowhead Sch. Dist. No.
75, Park County v. Klyap , 2003 MT 294, ¶ 20, 318 Mont. 103, ¶ 20, 79 P.3d 250, ¶ 20; see
also § 27-1-311, MCA. Additionally, damages which are not clearly ascertainable in both
their nature and origin cannot be recovered for a breach of contract. Larson v. Undem
(1990), 246 Mont. 336, 342, 805 P.2d 1318, 1322; § 27-1-311, MCA. The Tribe has
co nceded that if Bradley was properly terminated, he is entitled to payment for work
com pleted prior to termination in the amount of $4,320. If he was terminated in violation
of the contract, he may be entitled to additional contract damages, the amount of which is
in dispute. Summary judgment fixing damages is not proper.
¶ 30We hold that the District Court erred in again granting summary judgment to Bradley
after this case was remanded.
IV. CONCLUSION
¶ 31The judgment of the District Court reinstating the February 15, 2002, order granting
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sum mary judgment in favor of Bradley is reversed. This case is remanded for further
proceeding s in conformity with this Opinion.
/S/ JOHN WARNER
We Concur:
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA O. COTTER
/S/ BRIAN MORRIS
/S/ JIM RICE
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Justice Jam es C. Nelson concurs and dissents.
¶ 32I concur in our remand. I also agree with Chief Justice Gray's dissent and conclusion
that we should deny appellate review of this cause because the partial summary judgment
g ranted by the trial court was not properly certified as a final judgment under Rule 54(b),
M.R.App.P.
¶ 33This cause should be remanded to the District Court with instructions that the court
entertain further proceeding s to conc lude the litigation in this case and to enter a final
judg ement encompassing all issues related to the alleged breach of Bradley's contract by the
Tribe. If those proceedings require further hearings on summary or a full trial because there
are g enuine issues of material fact, then so be it. Following the entry of final judgment, an
appeal can be filed by the aggrieved party.
¶ 34This case has become a procedural briar patch. In my view, Bradley I was wrongly
decided. See Bradley v. Crow Tribe of Indians, 2003 MT 82, ¶¶ 23-40, 315 Mont. 75, ¶¶ 23-
40, 67 P.3d 306, ¶¶ 23-40 (Nelson, J., dissenting). That was our first mistake. Our second
m istake was to remand for "further proceedings" without any direction to the trial judge as
to what those further proceeding s should encompass. It appears that the Tribe has
m eritorious defenses, yet its ability to present and litigate those has been frustrated by
procedural entang lements including: the dismissal--erroneous as it turned out--of Bradleys
com plaint for lack of subject matter jurisdiction; the uncertain status of Bradley's summary
judg ment, judgment on remand; Bradley's new summary judgment motion on remand; the
court' s reinstatement of the original February 15, 2002 judgment; the court's determination--
15
ag ain, erroneous as it turned out--that it did not have jurisdiction over the Tribe's motion to
alter or amend, and the deemed denial of that motion.
¶ 35This case needs to be remanded; the Tribe's defenses need to be heard and ruled upon
either in sum mary judgment proceedings or in a trial; and a final judgment disposing of all
of Bradley's claims needs to be rendered. That will leave us free to start the third round of
appeals.
¶36I concur and dissent.
/S/ JAMES C. NELSON
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Chief Justice Gray, concurring in part and dissenting in part.
¶37 I concur in the remand result reached by the Court. I respectfully dissent, however,
from the means by which the Court reaches that result.
¶38 The overriding question presented by this appeal is whether we have jurisdiction to
address it. It is my view that this appeal is not properly before us and, consequently, we do
not have jurisdiction to entertain it. While no party advances this argument, our authority
to determine whether jurisdiction exists can be--and I believe in this case, must be--raised
sua sponte . See , e.g. , State v. Reeder , 2004 MT 244, ¶ 4 , 323 Mont. 15, ¶ 4, 97 P.3d 1104,¶
4 (citation omitted); Losleben v. Oppedahl , 2004 MT 5, ¶ 25, 319 Mont. 269 ¶ 25, 83 P.3d
1271, ¶ 25 (citation omitted). While some may be dismayed by my analysis, particularly
gi ven the amount of time this case has been in litigation and on appeal, it would be
inappropriate to fail to raise this issue.
¶39 Bradley's complaint against the Tribe, filed October 10, 2000, claimed breach of
contract/wrongful termination. It also asserted a right to recover under the common law
theories of quantum meruit, unjust enrichment, breach of fiduciary obligation, constructive
trust, conversion and breach of the implied contract of good faith and fair dealing. His
motion for summary judgment, filed November 27, 2001, sought judgment against the Tribe
on "all issues of liability"; judgment for $4,320 in damages for an August 15, 2000 invoice
and prejudgment interest thereon; and judgment for all damages remaining in the fund for
the project--and which had not been paid because of the Tribe’s breach of contract--in the
amount of $100,715, plus prejudgment interest thereon. The motion stated that " [t]his leaves
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only the issue of consequential damages to be presented to the trier of facts." Bradley’s brief
and supporting exhibits addressed the existence of a contract, the breach thereof, damages
claimed for the breach and prejudgment interest. Bradley's motion and brief did not address
the other claims in his complaint in any fashion. The brief did state, apparently
corresponding to the "consequential damages" statement in the motion, that the Tribe was
obligated to pay, "at the very least," the amounts set forth above. Bradley requested that
judgment be entered accordingly.
¶40 By its terms, the motion--although denominated a motion for summary judgment--was
a motion for partial summary judgment. The District Court granted Bradley's motion as
presented and entered judgment thereon. Shortly thereafter, Bradley's counsel filed a notice
of entry of "a Judgment." No further proceedings occurred on Bradley’s other claims or on
consequential damages. The District Court did not certify the judgment as final for purposes
of appea l pursuant to Rule 54(b), M.R.Civ.P. Nor was the situation corrected during the
remand of this case following the first appeal on the subject matter jurisdiction issue.
¶41 This appeal is not properly before us. We should so rule. Instead, the Court
overlooks these important matters by simply saying the District Court gave Bradley what he
requested. The salient point, however, is that pursuant to the claims in Bradley’s complaint
a nd his own observation in the motion that consequential damages would remain to be
determined, no full and final j udgment was entered. Consequently, we are wit hout
jurisdiction to entertain this appeal. Contrary to the Court’s somewhat disingenuous reliance
on the facts that Bradley did not later seek additional damages, move to dismiss this appeal
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or request a remand for additional damages, I submit that only this Court can determine its
jurisdiction. No party can do so, by either act or omission.
¶42 I do not look forward to future cases--which are sure to come--urging us to ignore the
absence of both a final judgment and a Rule 54(b) certification, and substantively address
an appeal in which we are without jurisdiction. I cannot join the Court’s implicit conclusion
that this appeal is properly before us and that we have jurisdiction to address it.
/S/ KARLA M. GRAY