### 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, th

e 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, w e find that the disp

ute between thes

e two parties involves a single claim and that none of the parti al summary judgment orders entered in the trial court are final judgments within the meaning of the “multiple clai

ms” provisions of Rul

e 54.02. This Courtis, therefore, w

ithout jurisdiction o

f this appeal. The judgments of the trial court are vacated, and the case is re

manded for trial o

n the merits. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Chancery Court Vacated and Rem

anded

W ILLI AM B. C AIN , J., delivered the opinion of the court, in which W ILLI AM C. K OCH , J R ., J. joined. P ATRICIA J. C OTTRELL , J., filed a concurring opinion. JayS. Bowen and Amy J. Everhart, Nashville, Tennessee , for the appellants, Tanya Tucker and Tanya Tucker, Inc. Aubrey B. Harwell, Jr. and Ger ald D. Ne enan, Nashville, Tennessee, for the appellee, Capitol Records, Inc.
OPINION

On August

12, 1998, Tany

a Tucker and Ta

nya Tucker

, Inc., Plainti

ffs, brought suit

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

unts andsought compensatory damages, attorney fees and pre-judgment interest, along with a tr ial by jur y. The complaint asse

rted that Tany

a Tucker is

a renowned singe

r/performer an

d recording ar

tist andthat Tanya Tucker, Inc. ente red into a contract with Liberty Records, a division of Capitol Records, Inc., on Marc

h 8, 1993. Under to t

he terms of this con

tract, Tucker,

Inc. was to

prov ide the exclusive service

s of Tanya T

ucker as a rec

ording artist in c

onnection wit

h the pr oduction of-2-

recor ds. It is further alleged that Tanya Tucker ha d been a Capitol recording artist for many y ears andhadachieved 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 termexpired October

31, 1997, and, when Capitol exercised its first option to extend the contract from November 1, 1997 throu gh October 31, 1999, Tucker became obligated to record and deliver to Capitol a minimum of

two additional L

P-Masters.

The contract contained

what is referre

d to as a “pay or play”

provision that states in pertinent part: Notwithstanding the foregoing, nothing containedin this Agreemen t shall obligate Liberty to manufacture, distribute, promote, advertise or sell records derived f rom masters recorded hereunder, or to have Artist in fact record or deliver the Minimum Numbe r of Masters designated in the OPTION PERIODS AND MAS TE R SCHE DULE for any p eri od h ereu nde r. Li bert y shall fulfill its entire obligation (including advancepayments, if any) to Arti

st 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 ApprovedRecording Fund Schedule wi th 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

Sec ond LP-M ast er, i f any: $250,000.00 $500,000.00

Thi rd LP -Ma ste r, i f any: $275,000.00 $650,000.00

Fou rth LP-M ast er, i f any: $275,000.00 $650,000.00

Fift h LP- Mas ter , if any: $300,000.00 $750,000.00-3-

Six th LP -Ma ste r, i f any: $300,000.00 $750,000.00

Sev ent h LP- Mas ter , if any: $350,000.00 $800,000.00

Se ction 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 i

ts 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 per

iod (please
see my letter dated September 24, 1997, a copy of which is attached hereto for y our immediate

reference), in consideration of your request, we have agreed that we will notrequire, nor will Tanya Tucker request, to record a nd/or deliver any

furtherLPMasters for Capit

ol Nashville

pursuant to the Ag

reement, 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 re

cording agre

ement with another

label and we will notregard such action on her part as being in any way in bre

ach of the Agreement

. In addition, Ta nya Tucker w aives such righ ts, if any, a

s she may hav

e pursuant to Paragraph

2.a., or otherwise regarding the so-called “pay or play” fe ature of the Agreement.

At such time

as Tanya Tucker commences to negotiate for a nother exclusive artist recording agreement with another label, we will negotiate in good

faith at that time an appropriate “override”, if a ny, with respect to future phonorecords on that new label, consistent with industry custom and practice.

If you have any questions reg ardi ng th is 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. I

n her complaint of

August 12, 1998, T

ucker allege

d in part:

18. Rec ent ly, 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 memorialto Ms. Wynette, recently decease d, who was one of1 Pat Quig ley was at the time P resident of C apitol.
-4- her heroines. Althoug

h 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 tha t Tuc ker obt ain Defendant’s approval in

order to release such a performance on a record label other than that of Defenda

nt. When the competi

ng rec ord company

sought to obtain Capit ol’s approval to includ e Tucker’s per

formance, howe

ver, Quigley

expressly refused to allow the use

of Tanya’ s performance u nless she would wa

ive and release her rights under the Agreement, a s well as releasing all o ther claims aga

inst Defendant. Capitol denied the allegation that Quigley 1 refused to allow Tucker to perform relative to the Tammy Wynette albu

m. The deposition of Pat Quigley asserted that Quigley called the competing record compa ny, Asylum Records in Nashville, and informed them that Capitol considered the contract at an e

nd but that Tucker

was insisting the c

ontract remaine

d in effect entitling

Tucker to the “pay or play” compensa tion. Capitol took the position thatQuigley f urther advised A

sylum that, if Tucker ’s contention was correct, she was still bound to Capitol and litigation among all pa rtie s would be li kely if Asylum rel eased the Tam my Wynette recordi ng.
Tucker filed a Motion for Partial Summary Judgment on her claim under the “pay or p lay” provision of the contract. In its order of February 20, 2000 denying this motion, the trial court observ ed, “The issu e before the Cour t 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 exe

cution of the contr

act, the exercise

by Capitol of t

he first o ption, th e request by Tucker of Capitol to be relieved of the contract, and t he 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 t o 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

reco rd 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 March8, 1993 Agreement
or to allow Ms. Tucker to rec ord 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-5-

another record label. Further, he stated that it wo uld be at least one(1) year before he would consider

allowing Ms. Tuck

er to record an a

lbum.

. . . . In c onsideration of th

e entire recor

d, with respect to p

laintiffs’ motio

n fo r partial summary judgment, the court finds that genuine issues of material facts e

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

the March 8, 1993 Agreemen

t, including Ms. Tu

cker’s rights

under paragraph

2(a), the “Pay or Play” provision.

Acco rdi ngly, plaintiffs’ motion for partial summary judgment is denie

d. All other matters are reserved.

On October 29, 1999,

Capitol filed a Motio

n for Partial Summar

y Judgment as

to Tucker’s cl aimthat Cap itol breached their duty of good faith and fair dealing, which was followed on Novembe r

19, 1999 with a second motion for partial summary judgment seeking to have the tria l court determine

the amount of Tuck

er’s potential re

covery und

er the “pay

or play” cl

aim. By order of January 25, 2000, Capitol’s Motio n for Partial Summar

y Judgment on

the claim for breach of the duty of good faith and fair dea ling was sustained by

the trial court.

On that same date, the motion by Capitol for partial summary judgment as to the amount Tucke r c ouldrecover under the “pay or play” provisions of the c ontract was sustained by the trial court in an order providing in par

t:
1. There is no genuine issue of material fac

t with respect to

the Second Motion For

Partial Summary Judgment filed by Capitol Records, I nc. on November 19, 1999 and Capitol R

ecord s, Inc. is entitled to summary judgment on the issues addressed in that Second Motion For Partial Summary Judgment asa matter of law.

2. The Court hereby finds that, i f the Plaintiffs prove that they are entitled to any so-ca

lled “pay or

play” pay

ment or paym

ents pursuant

to Paragraph 2(a) of the Agreement between the parties that is the subject to thi s action: the amount of the payment, i f 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. Th e issue o f whether Plaintiffs are entitled to any so-called “pay or play” payment or pay

ments under Paragraph 2(a) of the Agreement is reserved.
Also, on January 25, 2000, the trial court granted leave to Plaintiffs to ame

nd their complaint to add causes of

action for (1) fraudulent misrepresentation, (2)common law intentional interference-6-

withbusiness relation

s, (3) common law inte

rference 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

count s III through VI

of Plaintiff’s amended complaint seeking dismissal of these four new claims, which the trial court gra

nted by orde

r entered May

11, 2000. This orde

r provided in pert

inent part:

1. The Court finds that this is an appropriate case f or an interlocutory appeal. Counsel for the pa rties have agreed t

hat an interlocut

ory appea l of this Court’s Orders granti

ng the Motions for

Partial Summary

Judgment filed by

Capitols (sic) Records, Inc . is appropriate, and that it should be

accomplish

ed by entering those Orders as f

inal judgments pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure.

2. This Court’s Final Or d er granting the Motion of Defendant Capitol Records, Inc. for Summa

ry Judgment o

n Counts II

I-VI of Plaintiffs’ First Amended Complaint provides that it is being entered as a final judgment pursuant to Rule 54.02 of the TennesseeRules of

Civil Procedure. It is hereby ORDERED that this Court’s Order entered herein o n January25, 2000, control number 156777 (granting the Motion for Partial Summar y Judgment fi

led on October 29,

1999 by Capito

l Records, Inc. herein) and this Court’s Order entered herein on January 25, 2000, control number 256778 (grantingthe SecondMotion for Partial Summary Judgment filed on November

19, 1999 by Capitol Records, Inc. herein) are h ereby ente

red as final judgments

pursuant to Rule 54.02 of the Tennessee Rules of Civil Pro cedure a s of the date of entry

of this O rder, be cause the Court hereby expressly dete rmines that there is no just reason for delay in entering those Orders as final judgments and the Courthereby express ly directs ent ry of judgm ent on each of those Orders as final judgments

of this Cour t pur suant to Rule 54.02 of the Tennessee Ru

les of Civil Procedure.

3. Counsel for the parties agree that the trial of the remaining issues in this case should be con tinued indefinitely, pending resolution of the interlocutory appeals. Accordingly, the trial of this case, which was scheduled to be gin on Nov emb er 27 , 20 00, is h ereb y con tin ued ind efi nit ely.

Before reaching the

issues in this case, we must first determine whether we have jurisdiction of the appeal. Te

nnessee Rule of A

ppellate Procedu

re 13(b) provide

s:
Re v iew generally will extend only to those issues presented f or review. The appellate court shall also conside r wheth er 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-7-

ne edless litigation, (2) to prevent injury to the interest of the public, and (3) t o prevent prejudic

e to the judicial pr

ocess.
Tennessee Rule o

f Appellate Proc

edure 3(a) pro

vides: In civil actions every final judgment entered by a trial court from

which an appeal lies to the S upreme Court or Court of Appeals is appealable as of right. Except as otherwise permittedin 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 enforceab le or appealable

and is subject to re

vision at any

time beforeentry of a final judgment adjudicating all the claims, rights, and liabilities of all parties. Finally, Te

nnessee Rule of Civ

il Procedure 54.0

2 provides: Multiple Claims for

Relief. - - When more than one claim for relief is present in an action, whether as a cla im, counterclaim,

cross-claim, or t

hird party claim, or when multiple parties are i nvo lve d, t he co urt , wh eth er at law or i n eq uit y, may direct t he entry of a f

inal judgment as t

o one or more but fe

wer than all

of the claims o

r parties only upon an express determination that there is no just reason for delay and up on an expres s direction for the entry of judgment. In the a bsence of such deter mination and direction, any order or other form of decision, however des ignated , that adjudicates fewer than all the claims or the rig

hts and liabilities o

f fewer than all the part ies shall no t 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 cla ims and the rights and liabilities of all the parties.

Th is rule is identical to Federal Rule of Civil Procedure 54(b). Therefore, the opinions of feder a l 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 appella

te jurisdiction in this case is the a ction of the trial c

ourt reflected

by its May11 , 2000 order whereby the tri al court cert ified that its orders of January 25, 2000, gr antin g partial judgment to Capitol on the implied covenant of good fa ith 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 C apitol on counts III-VI of Tucker’s amended complaint, was a final judgment under Tennessee Rule of Civil Procedure 54.02. Th e court expressly determined that there was no just reason for delay in entering these order s a s final judgments. As this i

s 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.-8-

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 StatesSixth Circuit Court of Appeals in General Acquisition, Inc. v. GenCorp, Inc. , 23 F.3d 1022 (6 th Cir. 1994), we have determined that neither the orders of January 25, 2000, nor t he May 11, 200 0 order of the trial court, are final within the meaning of Rule 5

4.02. Thus, this Cour

t is without jurisdict

ion to consider this

appeal.

In its order of April 20, 1999 overruling Tucker’s Motion for Partial Summary Judgment, the trial court found that “gen uin e issues of material facts exist as to whether Ms. Tucker was unconditionally

released by

Capitol f rom 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, thetri al court held that “the issue of whether Plaintiffs are en

titled toany so-called ‘pay or play’ payment or payments under paragraph 2(a) of the A greement is reserved.” By holding that “genuine issues of material facts exist as to whether Ms. Tucker was unconditionally

released by

Capitol from the Ma

y 8, 1993 Ag

reement, includi

ng Ms. Tucker’s

rights
u nder paragraph 2(a), the ‘pay or play ’ provision” the trial court has held that genui ne issues o f material fact exist as to whether or not the contract was in f ull force and effect after Tucker’s failure to accept the conditions set f orth 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 co ntract while disavowing her exclusive commitmentto 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 fro m re cord ing f or an oth er co mpa ny.
“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 co

urt will not grant

to a party r

ecission 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 obser ved: “The basic

premise behind dis

allowing a part

y to affirm i

n part and repudiate in part is that one should not beable 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. J

amestown , 818 S.W.2d 338, 344 (Tenn. Ct. App. 1991).

If the contract is in eff

ect, Capitol owes T

ucker under the

“pay or pla

y” provisio

ns of th e contract. At the sa me time, a grant of summary judgment as to counts I II-VI of the ame

nded complaint of Tucker would seem justified since Capitol would have the right under the exclu sive recording provisions to protect its contractual rights. Conversely, if the contra ct is not in effect, Capitol owes nothing under the “pay or play ” provisions, and the inter ference by Capitol with Tucker’s recording fo r the T ammy Wynette album for Asy lum might well support the tort allegations in paragraph

III-VI of Tucker’s amended complaint, at least at the summary judg

ment stage. But

,-9-

neither of the parties ca

n unilaterally

terminate

the contract, though either or both may unila

terally
or bi-latera lly b reach the contr act and suffer t

he resulting con

sequences. Spea

king for this Cour

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

act, 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 re mained effective, the tri al j udge corr ect ly re fus ed t o gra nt s umm ary judgmenton the contract issue. The difficulty for the p arties, and for t he court, is that th

e remainder of t

he issues in the ca

se simply cannot be adjudicated without the court first adjudi cating the contr

act question. Ten

nessee Rule

of Civil Procedure 54.02 does not provide a “fast track” alternative to Tenne ssee 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 (T enn. Ct. App. Mar. 23, 1988); General Acquisition, 23 F.3d 1022.

In General Acquistion, GenCorp sought recovery from Shearson for par t of its cost o f fending off GeneralAcquisition’s hosti le takeover bid. The district court refused to grant Shearson’s motion for summary judgment on the question of liability b

ut did grant partial summary judgment to Shearson on the que stion of damages . After appellat e proceedings

not m aterial to our consideration, GenCorp, on remand, moved for reconsideration of the previous ord ers of the trial court, and Shearson renewed its motion for summary judgment. The dis

trict court repe

ated its position that liability remained in dispute but that certain damages would not be recoverable. The districtcourt 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 F ederal Rules of Ci

vil Procedure to be

in error, the Cour

t of Appeals for th

e SixthCircui t construedRule 54(b) in a lucid and expositive opinion. The portion of the opinion dealing w

ith the multiple claims prerequisite of Rule 5 4(b) is so clear and complete tha t we will not attempt t

o improve on it. Said th

e 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 1 205 -06 . By i ts o wn t erm s, R ule 54( b) ap pli es o nly t o actions involving either multiple parties or multiple claims. In a case such as this, involving only two partie s, Rule 54(b) certif

ication necessa

rily depend

s upon the presenc

e of multi pl e claims.

In Liberty Mutual , the Supreme Court found it unnecess

ary to delin

eate 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 parti

cula r action present

s one or more clai

ms a formidable

one. Wright, Miller & Kane § 2657; 2A Federal Procedure § 3:342 (“The-10-

question of what constitutes a single claim fo r r elief is unsettled and the courts are reluctant to articulate a hard-and-fast test”); 6 Moore ¶ 54.33[2] (“With the doctrine thu s in ferme nt it is difficult to state any reliable litmus for identifying a distinct ‘claim for relief.’ ”). Although not acknowledged by either p arty, the interpretation of Rule 54(b)’s multiple claims prerequisite is not a questionof first impression in this circuit.

We dismissed the appeal in McIntyre v. First National Bank of Cincinnati

, 585 F.2d 190, 191 (6 th Cir. 1978), after determining that the absence o f multiple claims left the districtcourt 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
sameevents. 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 f

irst phase of the s

uit, the district court entered judgment for the defendant on the federal causes of action. The district court then certified this order for immediate appea

l under Rule 54(b) , even though th e state causes of action remain ed un resolved. In dismissing the appeal, we concluded that the state and federal cau ses 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 theor

ies of liability

may have be

en asserted, the

concept of a ‘c

laim’ under Rule54(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 (2 d Cir. 1 96 8) (applying “operative facts” test to determine whe ther multiple claims were present); CMAX, Inc. v. Drewry Photocolor Corp. , 295 F.2d 695, 697 (9 th Cir. 1961) (same). See also

2A Federal Proc

edure § 3:342 (“A

s 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 t his case because all of GenCorp’s a

llegations conc

ern a single “a

ggregate of operativefacts,” andtherefore constitute a single claim for purposes of appellate jurisdiction. GenCorp accuses Shears

on of a single wr

ong – prompting G

eneral Acquisiti

on 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 m

ultiple cla

ims. “[W]he n a plaintiff is suing to vindicate one legal right and alleges several elements of damage, only one claim is presented and [ Rule54(b)] does not apply.” Wright Miller & Kane § 2657. See Liberty Mutua l , 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 on e of
severa l requests for re

lief arising fr

om a single wrong

does not establish a

ppella t e-11-

jurisdiction under Rule 54(b). See, e.g., Arizona Stat e Carpenters Pension Trust Fund v. Miller , 93 8 F.2d 103 8, 1040 (9 th Cir. 1991) (no appeal permitted from dismissal of punitive damages claim wherecompensatory damages claim remained in district court); Monument Management Ltd. Pa rtnership I v. City o

f Pearl , 952 F.2d 883, 885 (5 th Cir. 1992) (no appeal permitted from dismissal of consequential damages claims where inverse condemnation claim remained in district court).

Rather than applying o

ur circuit’s McIntyre

test, the parties urge this court t o adopt a “recoveries

” test for counting the number of claims in an action. Under the recoveries test, originally form ula ted in Rieser v. Baltimore & Ohio R.R. Co. , 224 F.2d 198 (2d Cir. 1955), multiple claims hav

e been stated whe

n a claimant’ s “possible recoveries are more than one in n umbe r and not mutually exclusive.” Wright, Miller & Kane § 2657. Conversely, only one cl aim has been stated when “a claimant presents a number

of legal theori

es, butwill be permitted to recover only on
one of them.” Id

. In other word s, only one c

laim exists, despite mu

ltiple theories of
reco very, when the “bases for recovery are mutually exclusive, or

simply presented in the alternative.” Id. GenCorp suggests that mu ltiple claims are p

resent in this case under the recoveries test becau se it seeks to recover two distinct types of damages f romShearson. Taking

a slightly d

ifferent tack,

Shearson sugg

ests that multipl e claims are present in this case under the recoveries test because GenCorp included three different liabil

ity theories in its

pleadings – breach of fiduciary duty , fraud, and negligence.

We are satisfied that this case i nvolve s 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 t he causes of ac tion arise out a sing

le
a g gregate of operative facts. This case also involves a single claim under the recoveries test because: (1 ) GenCorp’s r equest fo r two types of relief does not constitute mor e th an a s ingl e cl aim und er an y “ mul tiple claims” test, and (2) GenCorp’s three theories of liability are in fact mutually exclusive.

Ac cording to GenCorp, the claim for compensatory damages should be considered

separate from the claim for disgorgement because recove ry un der one theory would notp reclude recovery under the other. But the Supre me Court’s holding in Liberty Mutualrefutes 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 ¶ 54.3 3[2 ] (interpreting Liberty Mutualas “st a t[ing] categorically that an action seeking
rec overy fora 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.-12- S hearsonwould find multiple claims in this case because GenCorp’s thr e e liability theories pursue what Shearson characterizes as “non-exclusive

” recoveries. We might findthis 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 notconstitute multiple claims.” Note, Federal Ru le 54(b ): The Multiple Claims Requirement , 43 V A .L.R EV . 229, 236 (1957). Because all three of GenCorp’s liability theories seek to r

edress a common in

jury – the co

st of defending against the hostile takeover –

it is simply not true that GenCorp could recover more than once. To the extent that GenC

orp prevails on an

y one of the

se theories, it

could not return to court under anot

her theory

in pursuit of a doubl

e 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 multip le claims – it has offered alternative theories in pu rsuit of o ne recovery. GenCorp is clearly not entitled to the kind of multiple recoveries whi

ch constitute multip

le claims under the recoveries test. The a bsence of multiple claims or parties in this case renders the district court powerless to certify the April Order for immediate appea

l 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 fac ts.” 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 relations

hip between Tucker

and Capitol involve

s a single aggregate of operative facts. Whether this agg

regate of ope

rative facts,

when delineated by

the trial court after trial on the merits, established breach of contract, termination of contract, alternative tort liability or

no l iab ili ty, these facts establish

a single claim fo

r the purposes of a

ppellate jurisdiction under

Tennessee Rule of Civil Procedure 54.02. It is equ ally true tha

t, under the “rec

overies” test, the types of relief sought by Tucker do notconstitute more than a single claim, and the two theories of liability (contract and tort) are, in

fact, mutually

exclusive. Tucker

cannot recover

bothin breach of con

tract and in tort. Specifically addressing the certif ication 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 : “App ella te review of a question of damages prior to any determination of liability

puts the proverbial c

art before the h

orse, and such ce

rtifications 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 f rom the record how the contract w as 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 ente

rtain 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 interl ocutory or der is provided by the rules or by statute, appellate court

s have jurisdiction over final judgments only. Aetna Casualty & Surety Co. v. Miller , 491 S.W.2d 85 (Tenn. 1973). Tennesse e Rule of Appellat

e Procedur e 2 authoriz

e s 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 suspe

nsion and the rec

ord 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. 5 4.02, 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 c

ase 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 adjudica

te nothing on the is sues of law or fa ct in the case as our opinion is limited to the erroneous designation of the trial court rela

tive to finality under T.R.C.P. 54.02. Costs of the appeal are assessed equally to the parties.

___________________________________ WILLIA M B. CAIN, JUDGE