Barber v. Murphy

442 A.2d 446, 1981 R.I. LEXIS 1498

• Court: Supreme Court of Rhode Island
• Decided: December 17, 1981
• Docket: No. 81-353-A
• Status: Published

Opinion

ORDER

The plaintiff is here on appeal from a Superior Court judgment granting defendants’ motion to dismiss plaintiff’s complaint. The defendants move to affirm pursuant to Rule 16(g). An examination of the record, however, reveals that defendants’ counterclaim has not been decided. As we have often stated, in such a case an order disposing of one or more but less than all of the claims is not appealable under Super.R. Civ.P. 54(b) unless the trial justice in entering the order expressly determines that there is no just reason for delay and directs that judgment shall enter. The requisite Rule 54(b) certificate was not entered in this case. Accordingly, we remand this case to the Superior Court for further proceedings which may include, within that court’s sound judicial discretion, the entry of a judgment accompanied by a Rule 54(b) certificate. In the interest of avoiding needless litigation, however we point out here, as we did in Goodyear Loan Company v. Little, 107 R.I. 629, 269 A.2d 542 (1970), that the prosecution of an appeal following the required certification would be unavailing since we believe the plaintiff’s contentions to be without merit. The defendants’ request for counsel fee is denied.