dissenting,
with whom THOMAS, Justice, joins.Husman sued Triton Coal Company to recover loss and damage resulting from breach of contract because of Triton’s failure to pay for overburden moved and for negligent misrepresentation of soil and water conditions which caused Husman to enter into the contract causing damage. On July 9, 1990, the trial court entered summary judgment in favor of Triton and against Husman, stating:
[T]he Court finds that there are no genuine issues as to any material fact and the Defendant [Triton] is entitled to Judgment as a matter of law on all claims asserted by the Plaintiff.
On July 11, 1990, Husman filed its notice of appeal to the supreme court which states:
hereby appeals to the Supreme Court of the State of Wyoming from the Judgment and Order entered herein on July 9, 1990.
The judgment did not rule separately upon the claims asserted by Husman but entered a general judgment against Husman upon the entire case. The appeal was from the total summary judgment. The supreme court reversed and remanded, stating in its mandate as follows:
The Court being now fully apprised in the matter, does say and find there is reversible error in the record of the proceedings of the District Court of Sheridan County.
It is therefore ordered and adjudged for the reasons stated in the opinion herein this day delivered and filed that the judgment of the District Court be, and the same hereby is, reversed.... [emphasis added]
On June 14, 1991, the district court entered an order vacating and setting aside the judgment which stated as follows:
It is, therefore, ORDERED AND ADJUDGED that the judgment and order of this Court dated and filed July 9,1990, be vacated and set aside and the above entitled action shall be set for trial before a jury of twelve persons at a time convenient to the Court and counsel, [emphasis added]
The issue here presented for our determination is:
Where there has been no live witness testimony, no determination of credibility, no introduction of exhibits or evidence, no trial to a court or jury resulting in final judgment, but instead a preliminary disposition by summary judgment in a very complex, difficult case, must an appellant, from that total judg*675ment, brief and present argument on every disputed issue of fact, every claim, and every theory to preserve it for trial, or is it sufficient to demonstrate disputed issues of fact or incorrect application of law to entitle the losing party to a reversal, remand, and opportunity to try his case?
I see a very great difference between the appeal of a case disposed of upon motion before trial and appeal of a case in which final judgment has been entered after a trial upon the merits in which there was a full opportunity to present all of the facts and evidence for decision. Making this distinction, the result in cases cited by the parties is understandable. Thus, in Roberts Const. Co. v. Vondriska, 547 P.2d 1171, 1178 (Wyo.1976), there was a trial (not a preliminary disposition), final judgment, and appeal. The appeal was sufficient to raise the issue of the order to restore a gate, but appellant chose not to brief or argue that issue. It was held that Roberts waived any claim that he should not be required to restore the gate. The order to restore in the final judgment was clear; it had been fully resolved by trial; appellant did not contest it. Appellant was on notice of the requirement and obviously intended not to contest but to comply. In this case there is no specific order or notice of a penalty or loss of a right; no final judgment after trial determining all questions, liability and damages; and no clear statement of impending loss of right to present its entire case in a trial upon reversal.
Likewise, the decision in Potter v. Gilkey, 570 P.2d 449 (Wyo.1977), is not authority for the court’s decision here for it was reversal of a judgment after trial and remand for a specific purpose. We said:
Here the finding of assignment was improper because the trial court had no authority to try any issues other than those directed by the former mandate and opinion or any that were necessary to reach a decision on the mandated issues and which had not already been decided.
570 P.2d at 454. Remand in the instant case was not for a specific purpose but from reversal of a general judgment upon the entire case.
First, I would hold that the trial court correctly tried the entire ease to the jury because:
This was and is a plain unqualified reversal. To reverse a judgment or order means to overthrow it by a contrary decision, to make it void. When a judgment or order is reversed it is as if never rendered or made. Raun v. Reynolds, 18 Cal. 275, 276, at page 290.
Central Montana Stockyards v. Fraser, 133 Mont. 168, 320 P.2d 981, 991 (1957). See also 5B C.J.S. Appeal & Error § 1950, p. 511 (1958). Thus, the entire case was remanded for trial, and the trial court correctly ruled that the entire case should be tried to a jury.
The second reason this entire case was properly tried to the jury is that this was a suit upon a contract and nothing more. Claims were asserted of negligence and misrepresentation in making the contract, in breach for failure to determine quantities of overburden moved and damages for failure to pay for overburden moved and for assessing penalties under the contract; but the entire case concerned the contract of the parties. Thus, it is well stated that:
This appeal is not a multi-party multi-claim action, but a single claim between two parties. “The word ‘claim’ in Rule 54(b) refers to a set of facts giving rise to legal rights in the claimant, not to legal theories of recovery based upon those facts.” Where “each count sets forth a different legal theory, but each is based on the same transactions as evidenced in the contract and deed,” there is but one claim, [citations omitted]
Hutchins v. State, 100 Idaho 661, 603 P.2d 995, 1001 (1979). And so, in reality, there is here but one claim. The contract is at the center of the controversy, and all claims should have been and were tried to the jury upon remand.
In its appeal of the entry of summary judgment to the supreme court, appellant raised as an issue and argued the negligent *676misrepresentation claim contending that there were disputed issues of material fact which required reversal as a matter of law. The basis for this court’s opinion is that Husman should also, on appeal of summary judgment, have briefed and argued the breach of contract damage for overburden excavated and hauled.
The result of the court’s decision in this case will require an appellant from a summary judgment to present to the court, on appeal, issues and argument upon every fact in the case, every claim, every theory, or suffer the consequences of waiver in a case that was never tried. We should not mandate this result for cases in which there has been a preliminary disposition by entry of judgment before there has ever been a witness called, testimony taken, credibility judged, disputed issues of fact developed and resolved, and a final judgment after trial by a court or jury.
Finally, although I do not believe it necessary, I would, at a minimum, hold that this court, in the interest of effecting substantial justice in this ease, affirm the decision of the district judge in ordering trial of this entire case to the jury in accordance with our statement on rehearing of Wyuta Cattle Co. v. Connell, 43 Wyo. 135, 299 P. 279, reh’g denied 43 Wyo. 152, 155, 3 P.2d 101, 103 (1931), quoting King Solomon Tunnel & Dev. Co. v. Mary Verna Mining Co., 22 Colo.App. 528, 127 P. 129, 131 (1912):
Appellee also invokes the well-established general rule that appellate courts will not consider errors assigned, but not discussed in the printed briefs or on oral argument. Notwithstanding these general rules, we do not think they are at all times and under all circumstances inflexible. The appellate courts may in their discretion, and sometimes do, disregard the same, in order to prevent a miscarriage of justice. We think the substantial rights of litigants are of greater weight than the inadvertence or omissions of their attorneys. We are satisfied that the record here justifies the court in considering the same in formulating its opinion, although the rule may have been disregarded by appellant. We will concede that appellant failed, both in its printed brief and on oral argument, to discuss the eighth assignment of error next thereinafter mentioned, [citations omitted]
Assuming it were necessary for Husman to present the breach of contract issue upon the penalty waiver, I would disregard the failure and affirm the decision of the trial court to try the entire case to the jury. Were this case disposed of per my dissent, I would also recognize that Husman should not recover more than that claimed for breach of contract, or $247,000, and would reduce the judgment accordingly or remand to resolve this damage question.