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WALTER DEL COX, JR. v. HOWARD

SEPTEMBER 02, 1987

WALTER DEL COX, JR.
v.
HOWARD, WEIL, LABOUISSE, FRIEDRICHS, INC.



BEFORE HAWKINS, P.J., ROBERTSON AND ANDERSON, JJ.

HAWKINS, PRESIDING JUSTICE, FOR THE COURT:

This case involves a Rule 54(b) judgment under the Mississippi Rules of Civil Procedure (MRCP), dismissing one count of a counterclaim. It was improvidently granted; we vacate the appeal and remand to the circuit court of Warren County to remain on the trial docket until disposition of the entire case.

FACTS

 Howard, Weil, Labouisse, Friedrichs, Inc. (Howard, Weil) is a brokerage corporation with principal offices in New Orleans. In January, 1985, it filed a complaint against Walter Del Cox, Jr., in the circuit court of Warren County alleging an open account indebtedness for corporate stock transactions made through it by Cox in the amount of $59,543.

 By answer and counterclaim, later amended, Cox denied the accuracy of the account. His counterclaim contained three counts. Count I alleged that Howard, Weil failed to properly process orders he made and caused a loss of $39,382.53. Count II alleged that Howard, Weil had overcharged him on commissions in the amount of $76,867. Count III alleged that Howard, Weil employed him as a branch manager at a salary plus commissions, that Howard, Weil fired him and notified various exchange boards and stockbrokers of this termination. He claimed this deprived him of other job opportunities and $3,300,000 in damages on this count.

 Following his deposition, in which Cox acknowledged that he had never applied for another job, Howard, Weil, moved for summary judgment to dismiss Count III of the counterclaim.

 On November 7, 1985, the court entered a summary judgment in Howard, Weil's favor as to Count III. The judgment also recited:

 The Court does further find that there is no just reason for delay and expressly directs the entry of judgment in favor of the plaintiff, Howard, Weil, Labouisse, Friedricks, Inc., on Count III of the Counterclaim filed by the defendant/ counterclaimant, Walter Del Cox, Jr., in this cause and directs that Walter Del Cox, Jr., should take nothing under this Counterclaim.

 (R. 63)

 By the language in the judgment, the court rendered a Rule 54(b) final judgment under our Rules of Civil Procedure (MRCP).

 Cox has appealed, alleging the trial judge erred in granting the summary judgment on Count III. In its brief Howard, Weil alleges the judgment is an interlocutory order and not appealable, and argues the circuit court was correct in entering the summary judgment.

 LAW

 At the outset we note that Howard, Weil should have cross-appealed on the granting of a Rule 54(b) final judgment or made a motion to dismiss the appeal rather than assigning it as error in its brief on the direct appeal. A Rule 54(b) judgment is not an interlocutory order, but a final judgment specifically provided ...


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