Simmons v. State
| Decision Date | 06 January 1978 |
| Docket Number | No. 76-208-A,76-208-A |
| Parties | George SIMMONS and Debra Simmons, p. p. a. v. STATE of Rhode Island et al. ppeal. |
| Court | Rhode Island Supreme Court |
In this civil action involving multiple parties, the plaintiffs have appealed from a decision of a Superior Court justice granting a Super.R.Civ.P. 12(b)(6) motion for the State of Rhode Island, one of the two defendants, to dismiss the plaintiffs' complaint for failure to state a claim upon which relief can be granted.
Following the hearing before us on briefs and oral arguments, a closer examination of the records in the case than had theretofore been made disclosed certain procedural difficulties. The immediate jurisdictional defect was that the appeal had been taken from the trial justice's decision, rather than from a judgment. Boudreau v. Holzer, 109 R.I. 81, 82, 280 A.2d 88, 90 (1971); East Providence Credit Union v. Brown, 104 R.I. 92, 92-93, 242 A.2d 428 (1968). That defect, had it been the only one, might have been avoided by our remanding the case to the Superior Court on our own motion for entry of a nunc pro tunc judgment. James v. Melrose Realty Co., 112 R.I. 586, 588 n.1, 313 A.2d 654, 655 n.1 (1974); Malinou v. Kiernan, 105 R.I. 299, 300, 251 A.2d 530, 531 (1969).
But the absence of a judgment was not the only defect. In addition there was the more serious obstacle of noncompliance with Rule 54(b). That rule permits the entry of a final judgment as to one or more but fewer than all the parties, but only after the trial justice has expressly certified that there is no just reason for delay and has expressly directed that judgment may enter. Tessier v. Ann & Hope Factory Outlet, Inc., 113 R.I. 921, 320 A.2d 616 (1974); Kolc v. Maratta, 113 R.I. 160, 162, 319 A.2d 14, 15 (1974); Menzies v. Sigma Pi Alumni Ass'n, 110 R.I. 488, 490, 294 A.2d 193, 195 (1972). Neither that certification nor that direction was made in this case, which was therefore not ripe for appeal.
Accordingly, the case is remanded to the Superior Court for further proceedings which may include, within that court's sound judicial discretion, the entry of judgment accompanied by a Rule 54(b) certificate. If that discretion is exercised in favor of issuing the requisite certificate...
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State v. Briggs
... ... decision and judgment" in this case. See Brenner ... Associates, Inc. v. Rousseau, 537 A.2d 120, 122 (R.I ... 1988) (deciding the merits of an appeal where "the ... failure to enter judgment was apparently a clerical ... oversight"); Simmons v. State, 119 R.I. 578, ... 579, 381 A.2d 1045, 1046 (1978) (recognizing that the absence ... of a judgment in the record may be corrected by remand to the ... Superior Court "for entry of a nunc pro tunc ... judgment"). The Superior Court entered the decision and ... ...
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Lara F., In re
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