IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

November 9, 2000 Session

TANYA TUCKER, ET AL. v. CAPITOL RECORDS, INC.

 Appeal from the Chancery Court for Davidson County

No. 98-2449-I Irvin H. Kilcrease, Jr., Chancellor

No. M2000-01765-COA-R3-CV - Filed September 6, 2001

In this two party action, the trial court certified three partial summary judgment orders to be final

judgments pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure. Plaintiff appeals, and

Defendant supports the appeal. Both parties assert that the trial court’s finality designations involve

multiple claims under Rule 54.02. After review, we find that the dispute between these two parties

involves a single claim and that none of the partial summary judgment orders entered in the trial

court are final judgments within the meaning of the “multiple claims” provisions of Rule 54.02. This

Court is, therefore, without jurisdiction of this appeal. The judgments of the trial court are vacated,

and the case is remanded for trial on the merits.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Chancery Court 

Vacated and Remanded 

WILLIAM B.CAIN, J., delivered the opinion of the court, in which WILLIAM C. KOCH, JR., J. joined.

PATRICIA J. COTTRELL, J., filed a concurring opinion.

Jay S. Bowen and Amy J. Everhart, Nashville, Tennessee, for the appellants, Tanya Tucker and

Tanya Tucker, Inc.

Aubrey B. Harwell, Jr. and Gerald D. Neenan, Nashville, Tennessee, for the appellee, Capitol

Records, Inc.

OPINION

On August 12, 1998, Tanya Tucker and Tanya Tucker, Inc., Plaintiffs, brought suit against

Capitol Records, Inc., Defendant. The original complaint alleged breach of contract in two counts

and sought compensatory damages, attorney fees and pre-judgment interest, along with a trial by

jury. The complaint asserted that Tanya Tucker is a renowned singer/performer and recording artist

and that Tanya Tucker, Inc. entered into a contract with Liberty Records, a division of Capitol

Records, Inc., on March 8, 1993. Under to the terms of this contract, Tucker, Inc. was to provide

the exclusive services of Tanya Tucker as a recording artist in connection with the production of
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records. It is further alleged that Tanya Tucker had been a Capitol recording artist for many years

and had achieved worldwide fame. The March 8, 1993 contract was to expire on October 31, 1997

unless Capitol exercised its unconditional option to extend the agreement for an additional two year

period. Capitol did exercise its option and, thus, bound Tucker to continue to record exclusively for

Capitol during the two years subsequent to October 31, 1997.

Under the initial term of the contract, Tucker was to record and deliver to Capitol a minimum

of three LP-Masters for manufacture, distribution, promotion, advertisement, and sale. The original

term expired October 31, 1997, and, when Capitol exercised its first option to extend the contract

from November 1, 1997 through October 31, 1999, Tucker became obligated to record and deliver

to Capitol a minimum of two additional LP-Masters.

The contract contained what is referred to as a “pay or play” provision that states in pertinent

part:

Notwithstanding the foregoing, nothing contained in this Agreement shall obligate

Liberty to manufacture, distribute, promote, advertise or sell records derived from

masters recorded hereunder, or to have Artist in fact record or deliver the Minimum

Number of Masters designated in the OPTION PERIODS AND MASTER

SCHEDULE for any period hereunder. Liberty shall fulfill its entire obligation

(including advance payments, if any) to Artist as to undelivered masters by notifying

Artist in writing not to record and/or deliver the particular masters and by paying to

Artist the difference between (a) the amount set forth in Column “B” of the

Approved Recording Fund Schedule with respect to such LP-Master and (b) the

amount of the actual Recording Costs, inclusive of Producer fees and advances, for

the immediately preceding LP-Master; . . . 

. . . .

 APPROVED RECORDING FUND SCHEDULE 

Column “A” Column “B” Column “C”

First LP-Master: $250,000.00 $500,000.00

Second LP-Master, if any: $250,000.00 $500,000.00

Third LP-Master, if any: $275,000.00 $650,000.00

Fourth LP-Master, if any: $275,000.00 $650,000.00

Fifth LP-Master, if any: $300,000.00 $750,000.00
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Sixth LP-Master, if any: $300,000.00 $750,000.00

Seventh LP-Master, if any: $350,000.00 $800,000.00

Section 14(f) of the contract provides: “The term ‘LP-Master’ means a set of masters

sufficient to constitute an lp-disc.”

Shortly after Capitol exercised its first option to extend the Tucker contract from November

1, 1997 through October 31, 1999, Tucker asked to be released from the contract. On November 21,

1997, Capitol, acting through its Vice-President of Business Affairs, Ansel L. Davis, responded by

letter:

In view of your request, we wish to confirm that notwithstanding our exercise

of the option to extend the term of her Agreement into the first option period (please

see my letter dated September 24, 1997, a copy of which is attached hereto for your

immediate reference), in consideration of your request, we have agreed that we will

not require, nor will Tanya Tucker request, to record and/or deliver any further LPMasters for Capitol Nashville pursuant to the Agreement, unless both parties agree

otherwise hereafter in writing. 

We acknowledge that, in view of the foregoing, Tanya Tucker intends to seek

to enter into an exclusive artist recording agreement with another label and we will

not regard such action on her part as being in any way in breach of the Agreement.

In addition, Tanya Tucker waives such rights, if any, as she may have pursuant to

Paragraph 2.a., or otherwise regarding the so-called “pay or play” feature of the

Agreement.

At such time as Tanya Tucker commences to negotiate for another exclusive

artist recording agreement with another label, we will negotiate in good faith at that

time an appropriate “override”, if any, with respect to future phonorecords on that

new label, consistent with industry custom and practice.

If you have any questions regarding this matter, please don’t hesitate to

contact me; otherwise, kindly confirm our agreements with respect to the foregoing

by executing a copy of this letter and returning it to me at your earliest convenience.

As the proposal from Capitol to terminate the contract required Tucker to forego any claim

under the “pay or play” provisions of the contract, she declined to execute the proposed termination

agreement. In her complaint of August 12, 1998, Tucker alleged in part:

18. Recently, Tucker recorded a song to be included on a record album

which is to be released by another record label as a tribute to Tammy Wynette. She

recorded the track as a memorial to Ms. Wynette, recently deceased, who was one of
1

Pat Quig ley was at the time P resident of Capitol.

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her heroines. Although Plaintiffs believe the Agreement no longer to be in effect

because Defendant’s breaches have released Plaintiffs from their obligations under

the Agreement, were the Agreement in effect, it would require that Tucker obtain

Defendant’s approval in order to release such a performance on a record label other

than that of Defendant. When the competing record company sought to obtain

Capitol’s approval to include Tucker’s performance, however, Quigley expressly

refused to allow the use of Tanya’s performance unless she would waive and release

her rights under the Agreement, as well as releasing all other claims against

Defendant.

Capitol denied the allegation that Quigley1

 refused to allow Tucker to perform relative to the

Tammy Wynette album. The deposition of Pat Quigley asserted that Quigley called the competing

record company, Asylum Records in Nashville, and informed them that Capitol considered the

contract at an end but that Tucker was insisting the contract remained in effect entitling Tucker to

the “pay or play” compensation. Capitol took the position that Quigley further advised Asylum that,

if Tucker’s contention was correct, she was still bound to Capitol and litigation among all parties

would be likely if Asylum released the Tammy Wynette recording.

Tucker filed a Motion for Partial Summary Judgment on her claim under the “pay or play”

provision of the contract. In its order of February 20, 2000 denying this motion, the trial court

observed, “The issue before the Court is whether Capitol breached the ‘pay or play’ provision in

Paragraph 2(a) of the Exclusive Recording Agreement (‘the Agreement’) between Ms. Tucker and

Capitol.”

After reciting the execution of the contract, the exercise by Capitol of the first option, the

request by Tucker of Capitol to be relieved of the contract, and the letter from Ansel Davis of

November 21, 1997, the trial court stated:

The above letter (dated November 21, 1997) was to be signed by Ms. Tucker

or her representative, and returned to Capitol. However, Ms. Tucker never returned

the letter to Capitol. Instead, Ms. Tucker solicited recording contracts from other

record companies using the November 21, 1997 letter to verify that she had the

permission of Capitol to record for another record label. Thereafter, Ms. Tucker

recorded for Asylum Records, without prior to notice to Capitol. Now, Ms. Tucker

rejects the November 21, 1997 letter on the basis that it is a counter-offer.

In January of 1998, Ms. Tucker’s representative had a meeting with Capitol’s

President and again sought Ms. Tucker’s release from the March 8, 1993 Agreement

or to allow Ms. Tucker to record and release an album. Capitol’s President implied

that Ms. Tucker was no longer a priority for Capitol and Ms. Tucker needed to be on
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another record label. Further, he stated that it would be at least one(1) year before

he would consider allowing Ms. Tucker to record an album.

. . . .

In consideration of the entire record, with respect to plaintiffs’ motion for

partial summary judgment, the court finds that genuine issues of material facts exist

as to whether Ms. Tucker was unconditionally released by Capitol from the March

8, 1993 Agreement, including Ms. Tucker’s rights under paragraph 2(a), the “Pay or

Play” provision.

Accordingly, plaintiffs’ motion for partial summary judgment is denied. All

other matters are reserved.

On October 29, 1999, Capitol filed a Motion for Partial Summary Judgment as to Tucker’s

claim that Capitol breached their duty of good faith and fair dealing, which was followed on

November 19, 1999 with a second motion for partial summary judgment seeking to have the trial

court determine the amount of Tucker’s potential recovery under the “pay or play” claim.

By order of January 25, 2000, Capitol’s Motion for Partial Summary Judgment on the claim

for breach of the duty of good faith and fair dealing was sustained by the trial court. On that same

date, the motion by Capitol for partial summary judgment as to the amount Tucker could recover

under the “pay or play” provisions of the contract was sustained by the trial court in an order

providing in part:

1. There is no genuine issue of material fact with respect to the Second

Motion For Partial Summary Judgment filed by Capitol Records, Inc. on November

19, 1999 and Capitol Records, Inc. is entitled to summary judgment on the issues

addressed in that Second Motion For Partial Summary Judgment as a matter of law.

2. The Court hereby finds that, if the Plaintiffs prove that they are

entitled to any so-called “pay or play” payment or payments pursuant to Paragraph

2(a) of the Agreement between the parties that is the subject to this action: the

amount of the payment, if one were owed, for the fourth LP-Master that Plaintiffs

were scheduled to deliver under the Agreement would be $0.00; and the amount of

the payment, if one were owed, for the fifth LP-Master that Plaintiffs were scheduled

to deliver under the Agreement would be $16,187.59; and

3. The issue of whether Plaintiffs are entitled to any so-called “pay or

play” payment or payments under Paragraph 2(a) of the Agreement is reserved.

Also, on January 25, 2000, the trial court granted leave to Plaintiffs to amend their complaint

to add causes of action for (1) fraudulent misrepresentation, (2) common law intentional interference
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with business relations, (3) common law interference with contract, and (4) violation of Tennessee

Code Annotated section 47-50-109.

On February 25, 2000, Capitol filed a Motion for Partial Summary Judgment as to counts III

through VI of Plaintiff’s amended complaint seeking dismissal of these four new claims, which the

trial court granted by order entered May 11, 2000. This order provided in pertinent part:

1. The Court finds that this is an appropriate case for an interlocutory

appeal. Counsel for the parties have agreed that an interlocutory appeal of this

Court’s Orders granting the Motions for Partial Summary Judgment filed by Capitols

(sic) Records, Inc. is appropriate, and that it should be accomplished by entering

those Orders as final judgments pursuant to Rule 54.02 of the Tennessee Rules of

Civil Procedure.

2. This Court’s Final Order granting the Motion of Defendant Capitol

Records, Inc. for Summary Judgment on Counts III-VI of Plaintiffs’ First Amended

Complaint provides that it is being entered as a final judgment pursuant to Rule 54.02

of the Tennessee Rules of Civil Procedure. It is hereby ORDERED that this Court’s

Order entered herein on January 25, 2000, control number 156777 (granting the

Motion for Partial Summary Judgment filed on October 29, 1999 by Capitol Records,

Inc. herein) and this Court’s Order entered herein on January 25, 2000, control

number 256778 (granting the Second Motion for Partial Summary Judgment filed on

November 19, 1999 by Capitol Records, Inc. herein) are hereby entered as final

judgments pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure as of

the date of entry of this Order, because the Court hereby expressly determines that

there is no just reason for delay in entering those Orders as final judgments and the

Court hereby expressly directs entry of judgment on each of those Orders as final

judgments of this Court pursuant to Rule 54.02 of the Tennessee Rules of Civil

Procedure.

3. Counsel for the parties agree that the trial of the remaining issues in

this case should be continued indefinitely, pending resolution of the interlocutory

appeals. Accordingly, the trial of this case, which was scheduled to begin on

November 27, 2000, is hereby continued indefinitely.

Before reaching the issues in this case, we must first determine whether we have jurisdiction

of the appeal. Tennessee Rule of Appellate Procedure 13(b) provides:

Review generally will extend only to those issues presented for review. The

appellate court shall also consider whether the trial and appellate court have

jurisdiction over the subject matter, whether or not presented for review, and may in

its discretion consider other issues in order, among other reasons: (1) to prevent
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needless litigation, (2) to prevent injury to the interest of the public, and (3) to

prevent prejudice to the judicial process.

Tennessee Rule of Appellate Procedure 3(a) provides:

In civil actions every final judgment entered by a trial court from which an appeal lies

to the Supreme Court or Court of Appeals is appealable as of right. Except as

otherwise permitted in Rule 9 and in Rule 54.02 Tennessee Rules of Civil Procedure,

if multiple parties or multiple claims for relief are involved in an action, any order

that adjudicates fewer than all the claims or the rights and liabilities of fewer than all

the parties is not enforceable or appealable and is subject to revision at any time

before entry of a final judgment adjudicating all the claims, rights, and liabilities of

all parties.

Finally, Tennessee Rule of Civil Procedure 54.02 provides:

Multiple Claims for Relief. - - When more than one claim for relief is present

in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or

when multiple parties are involved, the court, whether at law or in equity, may direct

the entry of a final judgment as to one or more but fewer than all of the claims or

parties only upon an express determination that there is no just reason for delay and

upon an express direction for the entry of judgment. In the absence of such

determination and direction, any order or other form of decision, however designated,

that adjudicates fewer than all the claims or the rights and liabilities of fewer than all

the parties shall not terminate the action as to any of the claims or parties, and the

order or other form of decision is subject to revision at any time before the entry of

the judgment adjudicating all the claims and the rights and liabilities of all the

parties. 

This rule is identical to Federal Rule of Civil Procedure 54(b). Therefore, the opinions of federal

courts are persuasive authority in construing the finality provisions of the rule. Bowman v. Henard,

547 S.W.2d 527, 530 (Tenn. 1977).

The basis for appellate jurisdiction in this case is the action of the trial court reflected by its

May 11, 2000 order whereby the trial court certified that its orders of January 25, 2000, granting

partial judgment to Capitol on the implied covenant of good faith question and the amount

recoverable by Tucker under the “pay or play” provisions of the contract, were final judgments and

that its order of May 11, 2000, granting partial summary judgment to Capitol on counts III-VI of

Tucker’s amended complaint, was a final judgment under Tennessee Rule of Civil Procedure 54.02.

The court expressly determined that there was no just reason for delay in entering these orders as

final judgments. As this is not a multi-party case, appellate jurisdiction under Rule 54.02 must stand

or fall on the “more than one claim for relief” provision of this rule.
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For reasons articulated by the Supreme Court of Tennessee in Bayberry Associates v. Jones,

783 S.W.2d 553 (Tenn. 1990) and by the United States Sixth Circuit Court of Appeals in General

Acquisition, Inc. v. GenCorp, Inc., 23 F.3d 1022 (6th Cir. 1994), we have determined that neither the

orders of January 25, 2000, nor the May 11, 2000 order of the trial court, are final within the

meaning of Rule 54.02. Thus, this Court is without jurisdiction to consider this appeal.

In its order of April 20, 1999 overruling Tucker’s Motion for Partial Summary Judgment, the

trial court found that “genuine issues of material facts exist as to whether Ms. Tucker was

unconditionally released by Capitol from the March 8, 1993 Agreement, including Ms. Tucker’s

rights under paragraph 2(a), the ‘pay or play’ provision.”

In its order of January 25, 2000 sustaining Capitol’s Motion for Partial Summary Judgment

as to the amount that would be owed under the “pay or play” provisions of the contract, the trial

court held that “the issue of whether Plaintiffs are entitled to any so-called ‘pay or play’ payment or

payments under paragraph 2(a) of the Agreement is reserved.”

By holding that “genuine issues of material facts exist as to whether Ms. Tucker was

unconditionally released by Capitol from the May 8, 1993 Agreement, including Ms. Tucker’s rights

under paragraph 2(a), the ‘pay or play’ provision” the trial court has held that genuine issues of

material fact exist as to whether or not the contract was in full force and effect after Tucker’s failure

to accept the conditions set forth in the Ansel Davis letter of November 21, 1997. The resolution

of every other issue in the case is dependent on the resolution of that contract issue. Tucker cannot

claim the continued viability of the “pay or play” provisions of the contract while disavowing her

exclusive commitment to record for Capitol. At the same time, Capitol has no right to disavow the

“pay or play” provisions of the contract and use the exclusive recording commitment to block Tucker

from recording for another company.

“When the court orders a contract rescinded at the instance of one of the parties, the law

requires that the parties be put in statu quo. The court will not grant to a party recission of so much

of a contract as militates against his interest and allow him to retain the benefit of that portion which

inures to his benefit or profit.” Baird v. McDaniel Printing Co., 153 S.W.2d 135, 138 (Tenn. Ct.

App. 1941). This Court has observed: “The basic premise behind disallowing a party to affirm in

part and repudiate in part is that one should not be able to ‘accept the benefits on the one hand while

he shirks its disadvantages on the other.’ 17A C.J.S. Contracts § 416 (1963).” James Cable

Partners, L.P. v. Jamestown, 818 S.W.2d 338, 344 (Tenn. Ct. App. 1991).

If the contract is in effect, Capitol owes Tucker under the “pay or play” provisions of the

contract. At the same time, a grant of summary judgment as to counts III-VI of the amended

complaint of Tucker would seem justified since Capitol would have the right under the exclusive

recording provisions to protect its contractual rights. Conversely, if the contract is not in effect,

Capitol owes nothing under the “pay or play” provisions, and the interference by Capitol with

Tucker’s recording fortheTammy Wynette album for Asylum might well support the tort allegations

in paragraph III-VI of Tucker’s amended complaint, at least at the summary judgment stage. But,
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neither of the parties can unilaterally terminate the contract, though either or both may unilaterally

or bi-laterally breach the contract and suffer the resulting consequences. Speaking for this Court,

Judge Sam Felts, with his customary incisiveness, observed: “As it takes two to make a contract, it

takes two to unmake it. It cannot be changed or ended by one alone, but only by mutual assent of

both parties.” Akers v. J.B. Sedberry, Inc., 286 S.W.2d 617, 620-21 (Tenn. Ct. App. 1955).

As there were genuine material fact issues as to whether or not the contract remained

effective, the trial judge correctly refused to grant summary judgment on the contract issue. The

difficulty for the parties, and for the court, is that the remainder of the issues in the case simply

cannot be adjudicated without the court first adjudicating the contract question. Tennessee Rule of

Civil Procedure 54.02 does not provide a “fast track” alternative to Tennessee Rule of Appellate

Procedure 9. Bayberry Assocs., 783 S.W.2d 553; Mosier v. Mosier, 1989 WL 22832 (Tenn. Ct. App.

Mar. 17, 1989); Williams v. New York Times Broad. Servs., Inc., 1988 WL 27257 (Tenn. Ct. App.

Mar. 23, 1988); General Acquisition, 23 F.3d 1022.

 In General Acquistion, GenCorp sought recovery from Shearson for part of its cost of

fending off General Acquisition’s hostile takeover bid. The district court refused to grant Shearson’s

motion for summary judgment on the question of liability but did grant partial summary judgment

to Shearson on the question of damages. After appellate proceedings not material to our

consideration, GenCorp, on remand, moved for reconsideration of the previous orders of the trial

court, and Shearson renewed its motion for summary judgment. The district court repeated its

position that liability remained in dispute but that certain damages would not be recoverable. The

district court then certified its order for interlocutory review as a final judgment under Federal Rule

of Civil Procedure 54(b).

In reversing the order of the district court and finding the certification under Rule 54(b) of

the Federal Rules of Civil Procedure to be in error, the Court of Appeals for the Sixth Circuit

construed Rule 54(b) in a lucid and expositive opinion. The portion of the opinion dealing with the

multiple claims prerequisite of Rule 54(b) is so clear and complete that we will not attempt to

improve on it. Said the court:

Litigants in a single claim, two party dispute may not resort to Rule 54(b) as

a basis for appellate jurisdiction. See Liberty Mutual, supra, 424 U.S. at 742-43, 96

S.Ct. at 1205-06. By its own terms, Rule 54(b) applies only to actions involving

either multiple parties or multiple claims. In a case such as this, involving only two

parties, Rule 54(b) certification necessarily depends upon the presence of multiple

claims.

In Liberty Mutual, the Supreme Court found it unnecessary to delineate

precisely “what constitutes a claim for relief” under Rule 54(b). 424 U.S. at 744 n.

4, 96 S.Ct. at 1206 n. 4. The lack of any “generally accepted test” often makes the

task of ascertaining whether a particular action presents one or more claims a

formidable one. Wright, Miller & Kane § 2657; 2A Federal Procedure § 3:342 (“The
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question of what constitutes a single claim for relief is unsettled and the courts are

reluctant to articulate a hard-and-fast test”); 6 Moore ¶ 54.33[2] (“With the doctrine

thus in ferment it is difficult to state any reliable litmus for identifying a distinct

‘claim for relief.’ ”).

Although not acknowledged by either party, the interpretation of Rule 54(b)’s

multiple claims prerequisite is not a question of first impression in this circuit. We

dismissed the appeal in McIntyre v. First National Bank of Cincinnati, 585 F.2d 190,

191 (6th Cir. 1978), after determining that the absence of multiple claims left the

district court without “authority to enter final judgment” under Rule 54(b). The

plaintiff in McIntyre had alleged state and federal causes of action arising out of the

same events. Pursuant to the district judge’s instructions, the federal causes of action

were tried in their entirety prior to any disposition of the state causes of action. At

the conclusion of the first phase of the suit, the district court entered judgment for the

defendant on the federal causes of action. The district court then certified this order

for immediate appeal under Rule 54(b), even though the state causes of action

remained unresolved. In dismissing the appeal, we concluded that the state and

federal causes of action should be considered a single “claim” under Rule 54(b),

because they shared a common factual background. We explained that “[e]ven

though different theories of liability may have been asserted, the concept of a ‘claim’

under Rule 54(b) denotes ‘the aggregate of operative facts which give rise to a right

enforceable in the courts.’ ” Id. at 192 (citing Backus Plywood Corp. v. Commercial

Decal, Inc., 317 F.2d 339, 341 (2d Cir.), cert. denied, 375 U.S. 879, 84 S.Ct. 146, 11

L.Ed.2d 110 (1963)); Gottesman v. General Motors Corp., 401 F.2d 510, 512 (2d

Cir. 1968) (applying “operative facts” test to determine whether multiple claims were

present); CMAX, Inc. v. Drewry Photocolor Corp., 295 F.2d 695, 697 (9th Cir. 1961)

(same). See also 2A Federal Procedure § 3:342 (“As used in FRCP 54(b), a ‘claim’

. . . is the aggregate of operative facts which give rise to the claimant’s legal rights.”).

Under the McIntyre test, Rule 54(b) certification was improper in this case

because all of GenCorp’s allegations concern a single “aggregate of operative facts,”

and therefore constitute a single claim for purposes of appellate jurisdiction.

GenCorp accuses Shearson of a single wrong – prompting General Acquisition to

target GenCorp, and all of GenCorp’s rights against Shearson arise from the series

of events preceding the attempted hostile takeover. The fact that GenCorp seeks to

recover two types of damages – compensation and disgorgement – does not convert

a single claim into multiple claims. “[W]hen a plaintiff is suing to vindicate one

legal right and alleges several elements of damage, only one claim is presented and

[Rule 54(b)] does not apply.” Wright Miller & Kane § 2657. See Liberty Mutual,

424 U.S. at 744 n. 4, 96 S.Ct. at 1206 n. 4 (“recogniz[ing] that a complaint asserting

only one legal right, even if seeking multiple remedies for the alleged violation of

that right, states a single claim for relief”). A district court’s rejection of one of

several requests for relief arising from a single wrong does not establish appellate
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jurisdiction under Rule 54(b). See, e.g., Arizona State Carpenters Pension Trust

Fund v. Miller, 938 F.2d 1038, 1040 (9th Cir. 1991) (no appeal permitted from

dismissal of punitive damages claim where compensatory damages claim remained

in district court); Monument Management Ltd. Partnership I v. City of Pearl, 952

F.2d 883, 885 (5th Cir. 1992) (no appeal permitted from dismissal of consequential

damages claims where inverse condemnation claim remained in district court).

Rather than applying our circuit’s McIntyre test, the parties urge this court to

adopt a “recoveries” test for counting the number of claims in an action. Under the

recoveries test, originally formulated in Rieser v. Baltimore & Ohio R.R. Co., 224

F.2d 198 (2d Cir. 1955), multiple claims have been stated when a claimant’s

“possible recoveries are more than one in number and not mutually exclusive.”

Wright, Miller & Kane § 2657. Conversely, only one claim has been stated when “a

claimant presents a number of legal theories, but will be permitted to recover only on

one of them.” Id. In other words, only one claim exists, despite multiple theories of

recovery, when the “bases for recovery are mutually exclusive, or simply presented

in the alternative.” Id. GenCorp suggests that multiple claims are present in this case

under the recoveries test because it seeks to recover two distinct types of damages

from Shearson. Taking a slightly different tack, Shearson suggests that multiple

claims are present in this case under the recoveries test because GenCorp included

three different liability theories in its pleadings – breach of fiduciary duty, fraud, and

negligence.

We are satisfied that this case involves only a single claim under both the

McIntyre test and the recoveries test. As we have already explained, only one claim

exists under the McIntyre test because all of the causes of action arise out a single

aggregate of operative facts. This case also involves a single claim under the

recoveries test because: (1) GenCorp’s request for two types of relief does not

constitute more than a single claim under any “multiple claims” test, and (2)

GenCorp’s three theories of liability are in fact mutually exclusive.

According to GenCorp, the claim for compensatory damages should be

considered separate from the claim for disgorgement because recovery under one

theory would not preclude recovery under the other. But the Supreme Court’s

holding in Liberty Mutual refutes any notion that requests for various forms of relief

arising from a single breach of fiduciary duty generates multiple claims for purposes

of Rule 54(b). 424 U.S. at 744 n. 4, 96 S.Ct. at 1206 n. 4; 6 Moore ¶ 54.33[2]

(interpreting Liberty Mutual as “stat[ing] categorically that an action seeking

recovery for a single injury and based upon a single theory of liability does not

present more than one claim for relief because the plaintiff demands several types of

relief”); Wright, Miller & Kane § 2657; 2A Federal Procedure § 3:342.
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Shearson would find multiple claims in this case because GenCorp’s three

liability theories pursue what Shearson characterizes as “non-exclusive” recoveries.

We might find this argument more persuasive if GenCorp’s theories of liability were

in fact non-exclusive. But the standard of exclusivity gauges the extent to which a

plaintiff might be entitled to more than one recovery. As one commentator explains,

where “a favorable judgment on [one] count would bar a favorable judgment on

[another] count,” those counts seek “ ‘mutually exclusive’ recoveries, and hence do

not constitute multiple claims.” Note, Federal Rule 54(b): The Multiple Claims

Requirement, 43 VA.L.REV. 229, 236 (1957). Because all three of GenCorp’s

liability theories seek to redress a common injury – the cost of defending against the

hostile takeover – it is simply not true that GenCorp could recover more than once.

To the extent that GenCorp prevails on any one of these theories, it could not return

to court under another theory in pursuit of a double or triple recovery. See Eckman

v. Columbia Oldsmobile, Inc., 65 Ohio App.3d 719, 585 N.E.2d 451, 452-53 (1989)

(prohibiting duplicative recovery for an injury which had been “cured” by an earlier

award of relief). From this perspective, GenCorp has not stated multiple claims – it

has offered alternative theories in pursuit of one recovery. GenCorp is clearly not

entitled to the kind of multiple recoveries which constitute multiple claims under the

recoveries test. The absence of multiple claims or parties in this case renders the

district court powerless to certify the April Order for immediate appeal under Rule

54(b).

General Acquisition, 23 F.3d at 1027-1029.

Under the McIntyre test, Tucker and Capitol present a single “aggregate of operative facts.”

Likewise, just as General Acquisition failed the alternative “recoveries” test of Rieser, so the parties

in the case at bar fail this alternative test. The remedies sought are “mutually exclusive.”

The entire relationship between Tucker and Capitol involves a single aggregate of operative

facts. Whether this aggregate of operative facts, when delineated by the trial court after trial on the

merits, established breach of contract, termination of contract, alternative tort liability or no liability,

these facts establish a single claim for the purposes of appellate jurisdiction under Tennessee Rule

of Civil Procedure 54.02. It is equally true that, under the “recoveries” test, the types of relief sought

by Tucker do not constitute more than a single claim, and the two theories of liability (contract and

tort) are, in fact, mutually exclusive. Tucker cannot recover both in breach of contract and in tort.

Specificallyaddressingthe certification for appellate review of the contract provision relative

to the amount of recovery available under the “pay or play” provisions of the contract, we observe

again from General Acquisition: “Appellate review of a question of damages prior to any

determination of liability puts the proverbial cart before the horse, and such certifications are clearly

reversible under the law of this circuit.” General Acquisition, 23 F.3d at 1031.
-13-

On the record before us, the construction by the trial court of the “pay or play” provisions of

the contract seems highly questionable. Likewise, it is difficult to see from the record how the

contract was ever terminated. We can, however, make no determination as to any of these issues

since we determine that the Court of Appeals is without jurisdiction to entertain the appeal in this

case for lack of finality of the judgment under Rule 54.02.

The only way this court could entertain this appeal is by the method suggested but rejected

in Bayberry Associates, wherein the Supreme Court observed:

Unless an appeal from an interlocutory order is provided by the rules or by

statute, appellate courts have jurisdiction over final judgments only. Aetna Casualty

& Surety Co. v. Miller, 491 S.W.2d 85 (Tenn. 1973). Tennessee Rule of Appellate

Procedure 2 authorizes the suspension of all but Tenn. Rs. Civ. P. 4, 11 or 12.

Therefore, we find no bar to the suspension of Rule 3(a). However, there must be a

good reason for suspension and the record should affirmatively show that the rule has

been suspended. Here, we are not persuaded that there is good reason, nor does the

record show that the Court of Appeals intended to suspend Tenn. R. Appellate

Procedure P. 3(a).

The trial court improperly entered a final judgment pursuant to Tenn. R. Civ.

P. 54.02, and the Court of Appeals’ opinion in Bayberry Associates should be

vacated. 

Bayberry Assocs., 783 S.W.2d at 559. We are not persuaded that good reason exists in this case to

justify suspension of Tennessee Rule of Appellate Procedure 3(a).

The judgment of the trial court declaring its orders to be final orders under T.R.C.P. 54.02

is vacated, and the case is remanded for trial. We adjudicate nothing on the issues of law or fact in

the case as our opinion is limited to the erroneous designation of the trial court relative to finality

under T.R.C.P. 54.02. 

Costs of the appeal are assessed equally to the parties. 

___________________________________ 

WILLIAM B. CAIN, JUDGE