concurring specially.
I concur in the dismissal of this appeal, but reluctantly. I do not see that the posture of the case presents a question of appealability arising out of the scope of Rule 54(b). If Rule 54(b) did control the question of appealability, I would be unable to agree with the Court’s sua sponte decision to overthrow the district court’s certification of appealability, especially where it is a totally new conceptual approach to Rule 54(b) which has not been briefed or argued by the parties. There is a question of appealability, separate and apart from Rule 54(b). Briefly, I will endeavor to set out my reasoning, and the authority which supports my conclusions. Pichón, in her brief, states well the central issue raised by the appeal: that it “arises from the decision of the District Court to deny any equitable remedies to Pichón and allow her to proceed only on her claim for damages.” Such is exactly what happened; and from my review of the record, I am of the opinion that a review of that determination of law should be made, but as being one within the spirit and intent of Rule 12.
The defendants obtained that decision from the district court on a series of motions for partial summary judgment. In a letter decision the court ruled on the various motions, but it was not, nor was it intended to be, a memorandum opinion, which would have been better. As pointed out by Chief Justice Shepard, an order granting a partial summary should, in the language of Rule 56(d) be based upon a determination of “what material facts exist without substantial controversy,” and the order shall state “the facts that appear, without substantial controversy.” The letter decision does neither, and this Court can only determine the undisputed facts by going to the record, which is largely depositions and exhibits, or accept the facts as stated by the parties in their briefs.
The district court’s letter decision has been amplified, however, by remarks of the court at a hearing conducted on motions for reconsideration, which followed after the letter decision was sent out and before the formal orders were entered granting the summary judgment. During the course of that hearing the district court stated:
Gentlemen, what I want to see and I think the case should be in this posture, is that Mrs. Pichón can go to a jury and the jury can determine whether or not in effect those deeds and documents were fraudulently procured from her and whether or not she suffered any damages. ... I have attempted by my decision in this case to place this matter in a posture to be tried to a jury on the question of the alleged fraudulent procurement, actually of the deeds and other documents. It seems to me that when those deeds were recorded, and mortgages filed, we are effecting, seriously effecting the record, third persons, purchasers of those condominiums, that the recording of a deed certainly as to bona fide purchasers are sufficient and I think it leads us into a legal maize [from] which we could never extract ourselves.
No, it’s a question — it’s a question as to whether or not she has been damaged by a fraudulent procurement of those papers. And that is to be submitted to the jury. Now, I think included within that is the intent to deliver but not in the connotation that you are putting it. What you are saying is if there was [not] any intent to deliver, there was never any legal transaction at all.
*604She demanded a jury trial in this case. She wants a jury trial. She pled an equity situation and a legal situation. As I understand the law I have the right to take this away from a jury because she has pleaded on equity and pleaded it also in law. I have ruled that she does not have those equitable remedies, that she in effect has adequate remedy of law is in effect of what I said and certainly she has raised the question of fact as to whether or not these deeds were someway tricked out of her.
I am trying to separate this so you can go to the Supreme Court on these equitable issues and we can go to the jury on the legal issues.
In my opinion the failing in the opinion authored by the Chief Justice is his unquestioning acceptance of the grounds that this is a multiple claims situation, as contemplated by the provisions for certification under Rule 54(b), from which point he proceeds to hold that this Court is not bound to accept the certification made by the district court. The Court plows new ground. Until this particular case came before the Court, to obtain an appellate resolution going to the merits of the controlling question decided below, a number of cases have been dismissed for lack of the requisite certification, many of which were entered on the Court’s own motion. Today the Court goes one step further and dismisses because the certification should not have been issued. Here the parties and the trial court all clearly perceived that a trial decision was being made, and that it would be appealed; none of the respondents have moved to dismiss on the grounds of non-appealability, and much labor and expense and loss of time had occurred while the parties presented argument and authority going to the merits of the question the resolution of which they feel is essential before proceeding further below. The Chief Justice, citing the Panichella case, takes the position that “the record does not reflect any hardship or injustice what would be suffered if a Rule 54(b) certification was not made.” So far as I know this Court has not heretofore screened an appellate record to ascertain whether certification was justified. There is no provision in the Rules of Civil Procedure which has heretofore declared that power in this Court; I think that this is not the set of facts and circumstances calling for such a new rule by case law. In Panichella, which is an extreme case, Panichella sued the railroad only, who in turn brought in Warner Brothers Pictures, Inc., as a third-party defendant. The United States District Court certified as appealable the summary judgment decision that a release given by Panichella to Warner Brothers was a defense to the railroad’s claim against Warner Brothers for contribution and as primary tort-feasor.
While I am not inclined to debate the policy decision articulated in Panichella, I cannot at all see its applicability to this case1 and believe that this Court’s adoption of the philosophy there expressed should be better left to another day and another case. Here we see a plaintiff, four defendants, and a trial court all of a mind that an appeal of the district court’s ruling was important enough for certification as appealable. Being unable to see, as between the parties, any significant distinction in the legal effect of the release deed being fraudulently obtained, or only conditionally delivered and the condition not met, it seems patently in error for the trial court to have ruled that Pichón could not proceed to seek the equitable relief of quieting title to her property, or foreclosing the contract, *605without first trying out the issue of delivery, and determining its effect on the contract relationship. I say that, guardedly, however, and only for the purpose of presenting my views on appealability, because the Court as a whole has declined to and has not discussed the merits of the case, and appropriately I go no further.
My concurrence in dismissal is occasioned not by reason of an improvident Rule 54(b) certification, but rather because this simply is not a multiple claim situation. Pichón pleaded, and only purported to plead, a single claim for relief, which in her' second amended complaint is styled as her “cause of action.” Her claim for relief is based upon her real estate contract with Broekemeier, and she would like to get the balance due her thereunder, or the property back. In the event that the actions of the various defendants have precluded such relief, she alternatively wants the relief of damages against those found to be responsible.
Pichón states her claim for relief in four counts. Count I encompasses paragraphs I through XX, wherein she asserts the contract, the fraudulent procurement of the deed of August 14, 1973, that it is void for lack of delivery, that she has been deprived of all of the real property described in the deed of trust, that the condominium units she selected have not been conveyed to her, that the withholding of the “Consent of Encumber” from recording and the recording of the warranty deed were pursuant to a common plan intended to deprive her of her property, and that title to the entire real property described in the Pichon-Broekemeier contract should be quieted in Pichón, subject to any obligation to convey to Broekemeier upon performance of Broekemeier’s obligations under the contract of sale.
Count II is stated by repleading all of paragraphs I through XVII of Count I, and adds XVII and XIX, and amounts to an allegation that the recording of the warranty deed, withholding of the consent to encumber from record, and recording the deed of trust constituted slander of Pichon’s title of the real property and damaged Pichón m the amount of the unpaid balance on the Pichon-Broekemeier contract, for which Pichon asked recovery against Broekemeier, Colwell, Sawtooth and Lawyers on a theory of joint and several liability.
Coimt III is stated by repleading paragraphs I through XVII of Count I and adding XVIII and XIX, which asks for an order setting aside the foreclosure sale of the property.
Count IV is stated by repleading paragraphs I through VI of the first count, and adding VII and VIII — to allege defaults by Broekemeier in failing to make payments required by his contract with Pichón, and seeking recovery of the unpaid amounts.
While each count may set forth a different legal theory, and while it might be said that to some extent they are repetitious of each other, it is abundantly clear that each count is based on the same transaction, i. e., Pichon’s contract with Broekemeier and the ensuing release of the one and one-half acres by warranty deed and the execution of the consent to encumber which, in turn, involved CMT, Sawtooth Title, and Lawyer’s Title. It must be remembered that the underlying contract provided for a release and also dealt with Broekemeier’s right to encumber. Taken all together, as was said in Baca Land & Cattle Co. v. New Mexico Timber, Inc., 384 F.2d 701, 702 (10th Cir. 1967), it is inescapable that each theory arises out of the same transaction or occurrence; there is but one claim, and Rule 54(b) does not apply. The trial court cannot by certificate make final and appealable a ruling which is not final and appealable. Essentially, what the district court did here was make a ruling that he would restrict Pichon’s remedies as stated above. So viewed, that ruling is not unlike the in limine determination held unappealable in Twin Falls County v. Knievel, 98 Idaho 321, 563 P.2d 45 (1977), wherein it was held that the county had but a single claim for relief against multiple party defendants. As was stated in CMAX, Inc. v. Drewry Photocolor Corp., 295 F.2d 695, 697 (9th Cir. 1961), “The word ‘claim’ in Rule 54(b) refers to a *606set of facts giving rise to legal rights in the claimant, not to legal theories of recovery based upon those facts.”
Here, were we to allow the appeal as proper under Rule 54(b), we could very well be passing upon the question of the conditional delivery of the deed, or fraudulent procurement thereof, and its effect upon Pichon’s right to the remedies provided by her contract, with the district court at the same time submitting the same issue to a jury. In CMAX the circuit court observed that such simultaneous passing upon what is in substance the identical claim, dealing in the appellate court with one legal theory, and in the trial court on yet another, but in both courts on basically the same facts, would not be good judicial administration.
In view of the extreme amount of time and money expended by the parties in their presentation on the merits, it seems reasonable that they should be extended the opportunity of seeking certification under appellate rule 12 before the appeal is dismissed. The district court’s ruling being not final, it is of course subject to rescission or change should the court conclude that the issue of conditional delivery of the deed, or delivery procured by fraud, should be submitted to an advisory jury2 and that perhaps other factual issues determined before the district court reaches a final decision as to what remedy, if any, Pichón should have.
. No difficulty should be encountered here in accepting Pichon’s appeal on the “infrequent harsh case" criteria of Panichella. Having sold her property 6 years ago for $214,000.00, she has not received payments according to the contract, and the entire parcel became encumbered to CMT, which corporation has not released any part of it, nor recognized her claim to the three condominium units or $64,000.00— notwithstanding that CMT appears to have also taken on the obligation and rights of the Pichon-Broekemeier contract. Her asset, if it is hers, is a state of limbo, and she has received a trial court decision restricting her to “damages.”
. In my view, Pichon’s action arises out of a contract of sale with Broekemeier, the assignment of Broekemeier’s interest in that contract to CMT, the release of one and one-half acres as per the contract, the consent to encumber the contract property, the default in making payment, and Pichon’s present effort to obtain the remedies of the contract, which to my understanding are equitable. While a demand for jury trial has been made, according to remarks of the trial judge, such a demand would not ordinarily require jury resolution of issues which are essentially equitable. Pichon’s claim for “damages,” as distinguished from her claim to the return of the property or the monies promised her by the contract, is only an alternative remedy being sought in the event that the defendants, or some of them, by their conduct have wrongfully placed her in a position where she cannot enforce her contractual remedies.