dissenting.
I, too, must dissent in this case. I agree with Justice Cardine and join in his dissenting opinion. I particularly agree with his discussion of the distinguishing characteristics between the cases relied upon by the majority which refer to the appellate effect of the reversal following a trial on the merits and those of a summary judgment issued by the court before a trial. I simply add to what he says in distinguishing Wyoming precedent that Vorrath v. Garrelts, 49 Mich.App. 142, 211 N.W.2d 536 (1973), Tom Beuchler Construction, Inc. v. City of Williston, 413 N.W.2d 336 (N.D.1987), and Calistro v. Spokane Valley Irrigation Dist. No. 10, 78 Wash.2d 234, 472 P.2d 539 (1970), likewise are distinguishable because none of these cases involves a summary judgment. Lang v. Federated Dep’t Stores, Inc., 161 Ga.App. 760, 287 S.E.2d 729 (1982), speaks specifically to a “cause of action” not an issue or a theory. I also agree with Justice Cardine that the contract is at the center of the controversy making the issues so interwoven that all claims were properly tried to the jury upon remand. Hutchins v. State, 100 Idaho 661, 603 P.2d 995 (1979).
In listing the issues in Husman, Inc. v. Triton Coal Co., 809 P.2d 796, 798 (Wyo.1991), we included this one:
Whether genuine issues of material fact exist as to whether [Triton Coal] *677breached the contract and its covenant of good faith and fair dealing.
In our opinion in Husman, we did not specifically address any breach of contract issue. Instead, we discussed only the issue of the breach of a covenant of good faith and fair dealing, saying:
We hold that the contract term requiring a volume calculation is ambiguous. See True Oil Company v. Sinclair Oil Corporation, 771 P.2d 781 (Wyo.1989) (whether a contract is ambiguous is a question of law). Consequently, summary judgment is inappropriate, and the matter is remanded to the district court for determination of whether Triton Coal was only obligated to calculate the volume of material removed after the contract was terminated or was also obligated to conduct surveys during the course of Husman’s performance. See Carlson v. Carlson, 775 P.2d 478 (Wyo.1989).
Husman, 809 P.2d at 802.
I cannot perceive this as a limitation upon the authority of the trial court to try the issue of breach of contract after the summary judgment was reversed.
In Husman, this Court reversed the trial court’s decision and remanded the case after finding genuine issues of material fact existed concerning Husman’s claims of fraud, negligent misrepresentation, and breach of the covenant of good faith and fair dealing. In my view, the effect of the reversal of the summary judgment was to nullify that judgment completely and to leave the case in the posture as if such judgment had never been rendered. See In re General Adjudication of All Rights to Use Water in the Big Horn River System, 803 P.2d 61 (Wyo.1990) (holding that when interlocutory ruling of trial court is reversed, case is returned to trial court and continues as though erroneous ruling had not been made).
On remand, the lower court permitted Husman to try not only its tort claims and its claim for a breach of the implied covenant of good faith and fair dealing, but also Count II. Count II was the breach of contract claim for the material removed for which Triton did not pay. It was an alternative theory to the claim for a breach of the implied covenant of good faith and fair dealing. Triton objected to trying Count II, arguing the issue had been disposed of by the trial court’s granting of a summary judgment and by Husman’s failure to raise the issue on appeal. The trial judge denied Triton’s motion. This was the prerogative of the trial court. The judge correctly construed our opinion in Husman as requiring trial of the whole case, including Count II. I not only would affirm the jury verdict for Triton’s negligent misrepresentation of the site conditions, as the majority does, but' I would also affirm the jury verdict for Triton’s breach of contract.
Triton argues Husman was foreclosed from pursuing Count II because that issue became the “law of the ease,” and Hus-man’s failure to appeal Count II rendered the trial court’s summary judgment final pursuant to the doctrine of waiver. See Majority at 667. After an in-depth review of the doctrines of law of the case and waiver, the majority proceeds to explain “why we think that the ‘law of the ease’ as applied in this type of case is simply an example of waiver”. Majority at 667. I disagree with the majority’s conclusion that an appellate court’s reversal of a summary judgment affects only that portion of the judgment from which an appeal actually is taken. It is important to note this language from 18 Charles A. WRIght, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4478, at 789-90 (1981) (footnote omitted):
Although courts are often eager to avoid reconsideration of questions once decided in the same proceeding, it is clear that all federal courts retain power to reconsider if they wish. Law of the case principles in this aspect are a matter of practice that rests on good sense and the desire to protect both court and parties against the burdens of repeated reargument by indefatigable diehards. In one classic statement, Justice Holmes noted that law of the case doctrine “merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power.”
*678The applicable rule is stated in 5B C.J.S. Appeal and Error § 1950 (1958) (footnote omitted)1:
The effect of a general and unqualified reversal of a judgment, order, or decree is to nullify it completely and to leave the case standing as if such judgment, order, or decree had never been rendered, except as restricted by the opinion of the appellate court.
The majority recognizes this general rule, agrees with it, and points out that a large number of jurisdictions around the country follow this rule. However, the majority then finds such a rule does not mean our reversal in the first appeal granted the district court jurisdiction to try Count II in this case. See Majority at 668. I am satisfied this holding is erroneous.
The issues are open following a complete reversal, except as qualified by the appellate court. This general principle is found at 5 AM.JUR.2D Appeal and Error § 992 (1962):
On remand, the trial court may consider and decide any matters left open by the appellate court and is free to make any order or direction in further progress of the case, not inconsistent with the decision of the appellate court, as to any question not presented or settled by such decision. The issues are generally open on a retrial when a case is reversed and remanded for further proceedings. If the mandate speaks only in the light of the special facts found, the lower court is at liberty to proceed in all other respects in the manner that, according to its judgment, justice may require.
The Mandate on Reversal in this case provided:
This cause having been heretofore taken under advisement, 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 said district court be, and the same hereby is, reversed, and the case is remanded for proceedings consistent with the opinion.
Husman was not foreclosed from pursuing Count II at the subsequent trial, even if Husman had failed to appeal the summary judgment against it on that issue.
I find two cases controlling on this issue, one cited by both parties in their briefs, and one that neither cited. The cases are, Hutchins v. State, 100 Idaho 661, 603 P.2d 995 (1979), and more recently, Zavarelli v. Might, 239 Mont. 120, 779 P.2d 489 (1989).
In Hutchins, the Supreme Court of Idaho was considering an action for a second time, as in the case at hand. The Supreme Court initially had reversed a summary judgment entered against the State and remanded the case for further proceedings. Hutchins had not appealed from that aspect of the summary judgment entered in favor of the State. In the second appeal, the Supreme Court of Idaho agreed with the district court saying:
[A]ll issues not passed upon by this Court were open to him at the second trial. After a general reversal, a trial court is free to correct any error in its original findings and conclusions as to matters not passed on by the appellate court.
Hutchins, 603 P.2d at 1000 (citations omitted).
When the trial court’s decision is reversed, the judgment is no longer final, and the trial court may correct an error in its original findings as to a matter not passed on by the appellate court. The trial court continues to have jurisdiction, regardless of whether a claim is specifically brought on appeal or not. This is exactly what happened in this case. Even if Husman had not raised Count II specifically, that would not mean jurisdiction was lost to the trial court. Just the contrary occurs. The reversal of summary judgment on one or more counts implicitly reverses on all other counts. Thus, it was proper for the trial *679judge to allow the jury to consider Count II in the case at hand.
In Zavarelli, the district court s issuance of a permanent injunction was appealed. The Supreme Court of Montana reversed and remanded the case. After remand, the district court’s ruling was again appealed. The Supreme Court held that, on reversal and remand, the district court was reinvested with full jurisdiction for further proceedings. Specifically, the court stated:
When this Court reversed the first judgment of the District Court as to a prescriptive easement, and remanded the cause to the District Court for further proceedings, the cause was then before the District Court in the posture of not having a final judgment. In that situation, when there is nothing in the terms of the mandate to prevent it, the trial court has the power, on reconsideration, to find the same facts and change its holding, or to find different facts consistent with its original holding. Imperial Chemical Industries Ltd. v. National Distillers and Chemical Corp. (2d Cir. New York 1965), 354 F.2d 459, 19 A.L.R.3d 492.
Zavarelli, 779 P.2d at 493.
This is precisely the situation in this case. On remand, the case was in the posture of not having a final judgment, thus, neither the doctrine of law of the case nor the doctrine of waiver applies. A careful reading of the opinion and mandate in this case illustrates there is nothing to prevent the trial court from having full jurisdiction to hear all of the claims, regardless of whether they were raised specifically or not.
I would hold Count II was properly considered by the jury, and I would affirm the jury verdict in its entirety.
. "The reversal sets the matter at large for read-judication of all issues involved in the case, * * *.” 5 AM.JUR.2D Appeal and Error § 955 (1962).