IN THE SUPREME COURT OF MISSISSIPPI

NO. 97-CT-00064-SCT

JOSEPH Q. WHITE, JR., AS THE ADMINISTRATOR OF THE ESTATE OF ROGER W.

ROBINSON

v.

FRANKLIN MILLS

ON PETITION FOR WRIT OF CERTIORARI

DATE OF JUDGMENT: 12/12/96

TRIAL JUDGE: HON. BILL JONES

COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: BRIAN A. MONTAGUE

CLYDE H. GUNN, III

ATTORNEYS FOR APPELLEE: H. BENJAMIN MULLEN

DEMPSEY M. LEVI

NATURE OF THE CASE: CIVIL - PERSONAL INJURY

DISPOSITION: VACATED AND REMANDED- 4/22/1999

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 5/13/99

EN BANC.

SMITH, JUSTICE, FOR THE COURT:

¶1. We granted Franklin Mills's petition for a writ of certiorari to review the reversal by the Court of

Appeals of the trial court's grant of a Miss. R. Civ. P. 54(b) summary judgment to Mills on the issue of

liability for a car wreck in which Roger W. Robinson ran a stop sign and pulled directly out in front Mills.

Mills claimed that the Court of Appeals' reversal of summary judgment for him on the liability issue is

contrary to a prior decision of this Court,(1) specifically Donald v. Triple S Well Service, Inc., 708 So.

2d 1318 (Miss. 1998). Mills asked this Court to reverse the Court of Appeals, to render a judgment for

him against the Estate on the liability issue, and to remand for a jury determination of damages.

¶2. We agree that the Court of Appeals erred, but not for the reason raised by Mills. We find that the

Court of Appeals erred in hearing the Estate's appeal from the summary judgment for Mills on the issue of

liability. The trial court incorrectly certified the summary judgment for Mills as a Rule 54(b) judgment. The

trial court's summary judgment left for a jury determination the issue of damages which makes the Rule

54(b) certification improper. The appeal was improvidently granted, and the Court of Appeals should have

dismissed the appeal. We vacate the Court of Appeals' judgment and dismiss the appeal as improvidently

granted which effectively reinstates the trial court's summary judgment for Mills on the issue of liability.(2)
We remand the case to the trial court for further proceedings.

STATEMENT OF THE CASE

¶3. The wreck which gave rise to Mills's suit for personal injuries occurred on October 21, 1993, around

4:30 p.m., as Roger W. Robinson was coming down the I-10 exit ramp which intersects with Mississippi

Highway 63. Access to Highway 63 is controlled by a stop sign. Robinson did not stop at the stop sign and

pulled onto Highway 63 directly in front of Mills's car. Robinson died, and Mills was injured.

¶4. Mills sued Joseph Q. White, as the administrator of the Estate of Roger W. Robinson, for personal

injuries Mills sustained in the automobile accident. The Estate filed a counterclaim alleging that Mills's

negligence was the sole proximate cause or a contributing cause of the wreck.

¶5. Mills filed a motion for summary judgment claiming that Robinson's failure to stop at a stop sign was the

sole proximate cause of the wreck. Mills asserted that there was no genuine issue of material fact as to his

lack of liability for the wreck. Mills asked the court to dismiss the Estate's counterclaim against him. Mills

filed another motion for summary judgment asserting that there was no genuine material fact issue as to

Robinson's liability for the accident. Mills sought summary judgment on the liability aspect of his complaint

against the Estate.

¶6. In support of his motions for summary judgment, Mills submitted his affidavit and the affidavit of a

disinterested witness who was traveling behind Mills on Highway 63 immediately prior to the wreck. Both

Mills and the disinterested witness testified that Mills was traveling the speed limit or less and that Robinson

pulled out directly in front of Mills. Mills's affidavit additionally stated that there was no way for Mills to

avoid hitting Robinson's vehicle.

¶7. To rebut the motions for summary judgment, the Estate contended that Mills's consumption of alcohol

within an hour of the wreck and his inability to state when he first saw the vehicle operated by Robinson

created issues of material fact. In his deposition, Mills admitted that he consumed two drinks out of a pint

bottle of bourbon within one hour of the wreck but denied that he was intoxicated.(3) Mills was not cited for

DUI in connection with the accident. The records of the hospital where Mills was examined after the wreck

showed Mills's blood level alcohol percentage was .04 which is below the legal intoxication level.

¶8. The trial court awarded a Miss. R. Civ. P. 54(b) summary judgment to Mills against the Estate on the

liability issue, leaving for a jury determination only the issue of damages. In the same order, the trial court

dismissed with prejudice the counterclaim filed by the Estate against Mills.

¶9. The Estate appealed claiming that (1) the trial court failed to follow prior case law by not taking judicial

notice that Mills's consumption of alcohol, however small, shortly before the accident is enough to impair

reaction time, (2) Mills's impaired reaction time and his failure to kept a proper look out created genuine

issues of material fact as to Mills's contributory negligence, (3) summary judgment violated the requirements

of Miss. Code Ann. § 11-7-17 (1972) that all questions of negligence and contributory negligence be

submitted to a jury, and (4) comparative negligence barred summary judgment for Mills.

¶10. The Court of Appeals reversed, finding that whether Mills was under the influence of liquor to any

degree and, if so, whether this caused or contributed to the accident are genuine issues of material fact and,

therefore, the trial court erred in granting summary judgment. The Court of Appeals remanded for further

proceedings as if the motion for summary judgment had been denied.(4)
DISCUSSION OF THE LAW

¶11. The trial court improperly certified as a Rule 54(b) judgment, its order granting summary judgment to

Mills on the issue of liability and dismissing with prejudice the Estate's counterclaim against Mills. Despite its

designation as a Rule 54(b) judgment, the trial court's order was not an appealable order because it

reserved for trial the issue of damages to be awarded to Mills. Liberty Mutual Ins. Co. v. Wetzel, 424

U.S. 737 (1976).

¶12. In Liberty Mutual Ins. Co. v. Wetzel, supra, a class action sexual discrimination suit was brought

against an employer. The suit sought injunctive relief, damages, costs and attorney fees. The district court

entered partial summary judgment for the class on the liability issue. On a motion for reconsideration, the

district court certified the partial summary judgment as a Rule 54(b) judgment. The court of appeals

affirmed. The United States Supreme Court raised a jurisdiction issue, questioning whether the partial

summary judgment was a true Rule 54(b) judgment. The Supreme Court viewed the district court's ruling

as, at most, a declaratory judgment which left unresolved any of the requests for relief. The Supreme Court

found that the judgment was not appealable just because it contained the recital required by Rule 54(b). The

Supreme Court vacated the court of appeals' judgment and remanded with instructions to dismiss the

appeal.

¶13. This Court has not addressed whether Rule 54(b) of the Mississippi Rules of Civil Procedure

authorizes an appeal from a summary judgment of liability where the issue of damages is left for a jury

determination. We find the Liberty Mutual case enlightening. Additionally, the language of Rule 54(b)

does not appear to authorize such an appeal.

¶14. By its express terms, Rule 54(b) does not apply to a single claim suit between two parties. It is limited

to multiple-claims or multiple-party actions. As the Comment to Rule 54 states,

Rule 54(b) is designed to facilitate the entry of judgments upon one or more but fewer than all the

claims or as to one or more but fewer than all the parties in an action involving more than one claim or

party.... The general requirements [of Rule 54(b)] are that the case include either multiple claims,

multiple parties, or both, and that either one or more but fewer than all the claims have been decided,

or that all the rights and liabilities of at least one party have been adjudicated.... A decision that leaves

a portion of the claim pending as to all defendants does not fall within the ambit of Rule 54(b).

¶15. In the instant case, Mills raises a single claim against the Estate and seeks relief for injuries suffered in

the wreck. The fact that the trial court certified the summary judgment on the liability issue as a Rule 54(b)

judgment does not make the judgment appealable. The trial court's decision left a portion of the claim

pending - i.e., that portion dealing with the relief due Mills for injuries suffered as a result of the negligence

of Robinson. We hold that a summary judgment of liability, leaving for a jury determination the issue of

damages or the relief to be awarded, is not a true Rule 54(b) judgment.(5)

¶16. Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 512 So. 2d 897 (Miss. 1987), offers guidance

on the action an appellate court should take where a litigant appeals from a judgment improperly certified as

a Rule 54(b) judgment. In that case, Howard Weil sued Cox to collect an open account debt on stock

transactions. Cox counterclaimed claiming that Howard Weil owed him money for failing to properly

process orders placed by him, overcharged him for commissions, and wrongfully fired him. The trial court
granted a Rule 54(b) summary judgment to Howard Weil on the wrongful termination count. Cox appealed.

This Court noticed "plain error in the improvident granting" of the appeal. Holding that an order dismissing

one count of a counterclaim should not have been labeled a Rule 54(b) judgment by a trial court, this Court

dismissed the appeal and remanded to the trial court.(6)

CONCLUSION

¶17. Although Mills did not cross-appeal, did not ask this Court to dismiss the appeal, and did not assign

the Rule 54(b) designation as error,(7) this Court recognizes the plain error of the Court of Appeals

entertaining the Estate's appeal. We vacate the Court of Appeals' judgment and dismiss the Estate's appeal.

We remand to the trial court for further proceedings.

¶18. JUDGMENT OF THE COURT OF APPEALS IS VACATED AND REMANDED TO THE

JACKSON COUNTY CIRCUIT COURT FOR PROCEEDINGS CONSISTENT WITH THIS

OPINION.

PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, MILLS AND WALLER, JJ.,

CONCUR. McRAE, J., CONCURS IN RESULT ONLY. COBB, J., NOT PARTICIPATING.

1. Under the Mississippi Rules of Appellate Procedure, a decision of the Court of Appeals is reviewable by

the Supreme Court on writ of certiorari if "the Court of Appeals has rendered a decision which is in conflict

with a ... Supreme Court decision." M.R.A.P. 17. Rule 17 also provides for Supreme Court review of a

Court of Appeals' decision if the appeal involves fundamental issues of broad public importance although

this Court "may, in the absence of these factors, grant a writ of certiorari." M.R.A.P. 17.

2. We note for the record that the trial court's order from which this appeal was taken, made two

pronouncements on the liability issue. It granted summary judgment to Mills on the liability aspect of his suit

against the Estate, finding the Estate liable for the wreck, and it dismissed with prejudice the Estate's

counterclaim against Mills, finding Mills not liable for the wreck. We make no comment on what would have

been the outcome of an appeal if there had been an appeal of a separate order dismissing the counterclaim

with prejudice since such a situation is not presently before this Court.

3. Mills had two drinks of an unknown quantity from a pint bottle of bourbon within one hour of the wreck.

It could have been two sips or "swigs," but this Court will never know because the Estate did not seek a

clarification of the quantity during Mills's deposition.

4. Our vacating the Court of Appeals' judgment due to the lack of jurisdiction to hear the appeal since the

trial court's judgment was not a true Rule 54(b) judgment, should not be interpreted as an adoption by this

Court of (1) the rationale used by the Court of Appeals to reverse the trial court or (2) any of the arguments

made by the Estate in the appeal.

5. Although the summary judgment for Mills was not a Rule 54(b) judgment, this would not have prevented

an interlocutory appeal in accordance with the Mississippi Rules of Appellate Procedure, if otherwise
appropriate under and permitted by the Rules.

6. We repeat the caution issued by the Cox court. When an appellant appeals from a judgment improperly

certified as a Rule 54(b) judgment, the appellee should cross-appeal, claiming the judgment was improperly

labeled a Rule 54(b) judgment, or should move to dismiss the appeal.

7. Mills filed in the trial court, a motion to dismiss the appeal claiming the judgment was not final. Mills did

not reassert the issue in the appeal. Mills should have.