Calore Rigging Corp. v. Sterling Engineering & Const. Co.

• Decision Date: 13 February 1969
• Docket Number: No. 550-A,550-A
• Citation: Calore Rigging Corp. v. Sterling Engineering & Const. Co., 250 A.2d 365, 105 R.I. 150 (R.I. 1969)
• Court: Rhode Island Supreme Court
• Parties: CALORE RIGGING CORPORATION v. STERLING ENGINEERING & CONSTRUCTION COMPANY, Inc. ppeal.

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.

John A. Varone, Providence, for plaintiff.

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

OPINION

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 of the issues involved might be had in accordance with the terms of the contract.¹When 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 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 immediate review if there had been compliance with rule 54(b) of the rules of civil procedure of the superior court.³

That rule was devised in order to achieve a compromise between the long-standing judicial policy against piecemeal review on the one hand, and the desirability, on the other, of providing a means of avoiding the hardship and the denial of justice which oftentimes were the consequences of the opportunity for review being withheld pending a final disposition of all the claims involved in an action.Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511, 70 S.Ct. 322, 324, 94 L.Ed. 299, 302;3 Barron & Holtzoff, Federal Practice & Procedure, § 1193, page 18.

The precondition to an application of the rule is the presence of more than a single claim in tha action, and where there is but a single claim the rule may not be invoked.Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 435, 76 S.Ct. 895, 899, 100 L.Ed. 1297, 1306;Town of Clarksville v. United States, 4 Cir., 198 F.2d 238, 240;cert. denied, 344 U.S. 927, 73 S.Ct. 495, 97 L.Ed. 714; 6 Moore's Federal Practice (2d ed.) 54.33, page 238 et seq.If the precondtion is satisfied, the rule may be applied, but only if the trial court first makes '* * * an express determination that there is no just reason for delay and * * * an express direction for the entry of judgment.'

In this case, the precondition was satisfied.There was more than a single claim.The trial justice, however, when he adjudicated that claim neither expressly determined that there was no just reason for delay nor expressly directed that judgment enter.Ordinarily his failure to make the required certification, at least where there is no separate statutory right of appeal, would render the determination unappealable.Lehrer v. McCloskey Homes, Inc., 3 Cir.,...