Westinghouse Broadcasting Co., Inc. v. Dial Media, Inc.

• Citation: 410 A.2d 986,122 R.I. 571
• Decision Date: 18 January 1980
• Docket Number: No. 78-129-A,78-129-A
• Parties: WESTINGHOUSE BROADCASTING CO., INC. v. DIAL MEDIA, INC. ppeal.
• Court: United States State Supreme Court of Rhode Island

Page 986

410 A.2d 986

122 R.I. 571

WESTINGHOUSE BROADCASTING CO., INC. v. DIAL MEDIA, INC.

No. 78-129-Appeal.

Supreme Court of Rhode Island.

Jan. 18, 1980.

[122 R.I. 582] Roberts, Carroll, Feldstein & Tucker, Bruce G. Tucker, Providence, for plaintiff.

Schechter, Abrams & Verri, David A. Schechter, Providence, for defendant.

OPINION

BEVILACQUA, Chief Justice.

This is an appeal by the defendant, Dial Media, Inc., in a multiple claims civil action from an order of the Superior Court granting summary judgment in favor of the plaintiff, Westinghouse Broadcasting Co., Inc., on its book account claim. Although a counterclaim remains to be adjudicated, the trial justice, pursuant to Rule 54(b) of the Superior Court Rules of Civil Procedure, has expressly determined that there is no just reason for delay and has expressly directed the entry of judgment against the defendant in the amount of $30,812.50 plus interest and costs.

The plaintiff is an Indiana corporation doing business in Boston, Massachusetts, as WBZ-TV 4 (WBZ). The defendant is a marketing and advertising firm incorporated in the State of Rhode Island. Sometime in November or December of 1976, a WBZ salesman (Albert Salari) met with an agent of defendant to discuss the purchase of advertising on plaintiff's television broadcasting station. The defendant was seeking air time to market two of its mail-order products, the "Miracle Painter" and the "Miracle Slicer."

The parties eventually entered into an agreement which provided that, upon approval by plaintiff, advertisements describing the miraculous properties of these products and soliciting viewers to telephone or mail in their orders were to be aired. These ads were broadcast during February, March, and April of 1977.

In that same year, WBZ aired as part of the March 11 edition of its evening news program ¹ a brief consumer report on the "Miracle Painter." In that report Sharon King, the WBZ consumer affairs reporter, intimated that the product did not paint as miraculously as its name and ads suggested.

At some point after the consumer report had been aired, defendant refused to make payments to plaintiff under the terms of the broadcasting contract. ²

On May 20, 1977, plaintiff instituted this action by filing a complaint in Superior Court to recover the payments, totaling $30,812.50, allegedly due from defendant. ³ The defendant responded by filing an answer that denied plaintiff's allegations and asserted as defenses "fraud" and breach of contract. The defendant also filed a six-count counterclaim alleging, Inter alia, that the consumer report by Sharon King maliciously, fraudulently and negligently disparaged the efficiency, reliability, and price of defendant's product. The counterclaim also alleged that the report caused defendant to suffer loss of business and eventually forced defendant to "curtail its business in the market served by WBZ." The defendant claimed compensatory damages in the sum of $2,500,000 and punitive damages in the same amount.

On August 11, 1977, plaintiff, pursuant to Super.R.Civ.P. 56, filed a motion with supporting affidavits for summary judgment on its claim. At the same time it also filed a motion to dismiss defendant's counterclaim pursuant to Super.R.Civ.P. 12(b)(6). The defendant filed an objection with an opposing affidavit to plaintiff's motion for summary judgment. The opposing affidavit contained the sworn statement of Edward Valenti, the president of defendant corporation. Mr. Valenti deposed that Albert Salari had represented to defendant that if it advertised with plaintiff, plaintiff would work in defendant's best interest to promote the sale of the "Miracle Painter" and the "Miracle Slicer." Mr. Valenti also deposed that defendant considered the WBZ consumer report on the "Miracle Painter" to be a breach of that representation.

On November 23, 1977, plaintiff's motions came to be heard. After reviewing the pleadings and affidavits, the trial justice granted plaintiff's motion for summary judgment. He found that with respect to plaintiff's book account claim, there was no genuine issue as to any material fact and that plaintiff was entitled to judgment against defendant as a matter of law in the amount claimed. He premised this finding on his conclusion that the best interest representation by Mr. Salari constituted mere "puffing * * * (which) means nothing" and which did "not answer the affidavit filed on behalf of the plaintiff ⁴." Additionally, the trial justice granted plaintiff's motion to dismiss defendant's counterclaim in regard to counts III, V, and VI. The motion was denied in regard to counts I and II, and withdrawn in regard to count IV.

The issues raised by this appeal concern (1) when a trial justice can apply the provisions of Rule 54(b) and (2) when summary judgment procedure is in order.

I

The defendant assigns as error both the trial justice's order granting summary judgment and his Rule 54(b) certification of that order as a final judgment. The defendant contends that Rule 54(b) was improperly applied because the action below did not present more than one claim for relief. According to defendant, the transactional relationship of its counterclaim to plaintiff's claim meant that the action presented only one claim for relief. Under such circumstances Rule 54(b) would not be applicable and plaintiff would not be entitled to a final judgment on its claim.

The defendant's challenge to the Rule 54(b) certification of the summary judgment order as a final judgment, in effect, challenges our jurisdiction to review the merits of that order at this time. General Laws 1956 (1969 Reenactment) § 9-24-1, as amended by P.L.1975 ch. 244, § 1, provides that an appeal may be taken only from a "final judgment, decree, or order * * *" of the Superior Court. The basic test of the finality of a judgment for purposes of appeal is that it should terminate all litigation arising out of the cause between the parties on the merits. Pearson v. Old Stone Savings Bank, R.I., 383 A.2d 1029 (1978); McAuslan v. McAuslan, 34 R.I. 462, 83 A. 837 (1912). Clearly, not all litigation arising out of the cause between the parties in the instant case has been terminated on the merits. There remains to be adjudicated a counterclaim asserted in defendant's answer.

There are, however, certain circumstances in which a decree or order may be considered final for purposes of appeal even though it does not terminate all litigation arising out of the cause between the parties on the merits. Thus, § 9-24-7 provides for an immediate appeal whenever upon a hearing in the Superior Court an injunction shall be granted or continued, or a receiver appointed, or a sale of real or personal property ordered, or a new trial ordered or denied after a trial by jury. We may also hear an appeal from an interlocutory order if overriding public policy considerations so warrant or when it appears that prompt action is necessary to avoid imminent and irreparable harm. Eidam v. Eidam, 108 R.I. 673, 279 A.2d 413 (1971); The Atlantic Refining Co. v. Director of Public Works, 98 R.I. 167, 200 A.2d 580 (1964). Finally, according to Rule 54(b), an interlocutory disposition may be certified as a final judgment if the conditions of the rule are met. ⁵ Calore Rigging Corp. v. Sterling Engineering & Construction Co., Inc., 105 R.I. 150, 152, 250 A.2d 365, 367.

When reviewing a trial justice's 54(b) certification, this court first considers whether the action below involved either multiple parties or multiple claims for relief (or both) and whether the trial court's interlocutory disposition adjudicated one or more but fewer than all the claims (or the rights and liabilities of one or more but fewer than all the parties) before it. In regard to this determination, the trial justice's certificate is neither binding nor conclusive on this court. See Pearson v. Old Stone Savings Bank, supra; McAuslan v. McAuslan, supra. Secondly, this court must consider whether the trial justice properly determined that there was no just reason for delay. This determination is subject to review only for an abuse of trial court discretion. Calore Rigging Corp. v. Sterling Engineering & Construction Co., supra at 154, 250 A.2d at 368. See generally 10 Wright and Miller, Federal Practice and Procedure: Civil § 2655 at 35-39 (1973).

Rule 54(b) by its own terms indicates that claims, counterclaims, cross-claims, and third party claims are separable units for applying its multiple claims provision. Under the rules, a counterclaim, whether permissive or compulsory, is treated like any other claim. Cold Metal Process Co. v. United Engineering & Foundry Co., 351 U.S. 445, 452, 76 S.Ct. 904, 908-09, 100 L.Ed. 1311, 1318 (1956). In the action below defendant asserted a counterclaim in its answer, to which plaintiff filed a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. This motion was granted in part, denied in part, and withdrawn in part. Thus, defendant's counterclaim remains actionable. Under these circumstances it is evident that the action below, consisting of the claims for relief presented by either party, presented more than one such claim. We reject as without merit defendant's contention that the transactional relationship of its counterclaim to plaintiff's claim precludes a finding that the action presented more than one claim for relief. That relationship is not relevant to whether the action presents more than one claim for relief. ⁶ Cold Metal Process Co. v. United Engineering & Foundry Co., supra.

In view of our determination that the action below presented more than one claim for relief, the trial justice's summary judgment order regarding plaintiff's book account claim clearly adjudicated "one or more but fewer than all of the claims" before him. Furthermore, the trial justice did not err in expressly determining that there was no just reason for...