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White v. Mills4/22/1999
single claim suit between two parties. It is limited to multiple-claims or multiple-party actions. As the Comment to Rule 54 states,
"Rule 54(b) is designed to facilitate the entry of judgments upon one or more but fewer than all the claims or as to one or more but fewer than all the parties in an action involving more than one claim or party.... The general requirements [of Rule 54(b)] are that the case include either multiple claims, multiple parties, or both, and that either one or more but fewer than all the claims have been decided, or that all the rights and liabilities of at least one party have been adjudicated.... A decision that leaves a portion of the claim pending as to all defendants does not fall within the ambit of Rule 54(b)."
. In the instant case, Mills raises a single claim against the Estate and seeks relief for injuries suffered in the wreck. The fact that the trial court certified the summary judgment on the liability issue as a Rule 54(b) judgment does not make the judgment appealable. The trial court's decision left a portion of the claim pending - i.e., that portion dealing with the relief due Mills for injuries suffered as a result of the negligence of Robinson. We hold that a summary judgment of liability, leaving for a jury determination the issue of damages or the relief to be awarded, is not a true Rule 54(b) judgment.
. Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 512 So. 2d 897 (Miss. 1987), offers guidance on the action an appellate court should take where a litigant appeals from a judgment improperly certified as a Rule 54(b) judgment. In that case, Howard Weil sued Cox to collect an open account debt on stock transactions. Cox counterclaimed claiming that Howard Weil owed him money for failing to properly process orders placed by him, overcharged him for commissions, and wrongfully fired him. The trial court granted a Rule 54(b) summary judgment to Howard Weil on the wrongful termination count. Cox appealed. This Court noticed "plain error in the improvident granting" of the appeal. Holding that an order dismissing one count of a counterclaim should not have been labeled a Rule 54(b) judgment by a trial court, this Court dismissed the appeal and remanded to the trial court.
CONCLUSION
. Although Mills did not cross-appeal, did not ask this Court to dismiss the appeal, and did not assign the Rule 54(b) designation as error, this Court recognizes the plain error of the Court of Appeals entertaining the Estate's appeal. We vacate the Court of Appeals' judgment and dismiss the Estate's appeal. We remand to the trial court for further proceedings.
. JUDGMENT OF THE COURT OF APPEALS IS VACATED AND REMANDED TO THE JACKSON COUNTY CIRCUIT COURT FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.
PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, MILLS AND WALLER, JJ., CONCUR. McRAE, J., CONCURS IN RESULT ONLY. COBB, J., NOT PARTICIPATING.
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