Calore Rigging Corp. v. Sterling Engineering & Const. Co., No. 550-A

• Court: United States State Supreme Court of Rhode Island
• Writing for the Court: JOSLIN; PAOLINO
• Citation: 105 R.I. 150,250 A.2d 365
• Parties: CALORE RIGGING CORPORATION v. STERLING ENGINEERING & CONSTRUCTION COMPANY, Inc. ppeal.
• Docket Number: No. 550-A
• Decision Date: 13 February 1969

Page 365

250 A.2d 365 105 R.I. 150 CALORE RIGGING CORPORATION
v.
STERLING ENGINEERING & CONSTRUCTION COMPANY, Inc. No. 550-Appeal. Supreme Court of Rhode Island. Feb. 13, 1969.

[105 R.I. 154]

Page 366

John A. Varone, Providence, for plaintiff.

Adler, Pollock & Sheehan, Peter Lawson Kennedy, Providence, for defendant.

OPINION

[105 R.I. 151] JOSLIN, Justice.

In this civil action for the breach of a construction contract the defendant in the superior court moved to stay the trial of the action there pending until arbitration

Page 367

of the issues involved might be had in accordance with the terms of the contract. ¹ When the motion was denied, the defendant appealed and at the same time moved for leave to file a petition for a writ of certiorari. We refused leave to file, R.I., 243 A.2d 925, and the case is now here on the defendant's appeal.

When the case was heard on briefs and oral argument-and it was then that we first learned that review had been sought by appeal as well as certiorari-the procedural difficulties became at once apparent.

The immediate jurisdictional defect was that the case was not properly before us, the appeal having been taken from a trial justice's decision, rather than from a judgment. East Providence Credit Union v. Brown, R.I., 242 A.2d 428. That, however, was not the only obstacle. Assuming it could have been overcome by a nunc pro tunc order, there was still the further stumbling block of the principle which requires appellate proceedings to await entry of final judgment. That principle is predicated upon a judicial distaste for piecemeal review. It is not, however, immutable, and review may be had of interlocutory determinations in special situations where the legislature has so [105 R.I. 152] provided, ² or if overriding public policy considerations or the possibility of undue hardship or injurious consequences warrant. Atlantic Refining Co. v. Director of Public Works, 98 R.I. 167, 200 A.2d 580; Ewing v. Tax Assessors, 90 R.I. 86, 155 A.2d 61; McAuslan v. McAuslan, 34 R.I. 462, 83 A. 837.

In this case, the determination appealed from, read literally, is interlocutory, rather than final, and therefore in ordinary circumstances would not qualify for review. When we look to its substance however, rather than to its form, it is possible to articulate it as if the trial justice had dismissed what in substance and effect was a cross-claim or counterclaim for the enforcement of a contract to submit a dispute to arbitration. In appropriate circumstances such a contract would, of course, be susceptible to a suit for specific performance. Cooke v. Miller, 25 R.I. 92, 54 A. 927; Town of Bristol v. Bristol and Warren Water Works, 19 R.I. 413, 34 A. 359, 32 L.R.A. 740. When the case is considered in this sense it involves a claim for breach of contract, as well as a claim for specific performance of a contract to submit to arbitration. Because the claims involved in the litigation are multiple rather than single, the trial justice's determination, otherwise unappealable because lacking in finality, might have acquired eligibility for...