Unpublished Dispositionphipps Pipeline Contracting, Inc., Plaintiff-appellant, v. Delzinna Belcher, et al., Defendants-appellees, 937 F.2d 609 (6th Cir. 1991)

Before KENNEDY and MILBURN, Circuit Judges, and ZATKOFF, District Judge^* .

ORDER

In this case, the parties entered into a stipulation wherein judgment was entered in the district court with certain reservations as follows:

6. It is stipulated that, in the event the Sixth Circuit Court of Appeals reverses the judgment of the district court, then, and in that event, this action will be returned to the status that it maintained prior to the entry of Judgment, a jury impaneled and all rights of action, all defenses and all issues concerning liability and damages shall be tried in full.

7. It is stipulated that the Defendants agree to the entry of the aforementioned Judgment only if the measure of damages, as adjudicated by the District Court, is affirmed by the Sixth Circuit Court of Appeals, but not otherwise....

On July 3, 1991, the parties were ordered to submit briefs setting out the claims and defenses that are reserved and also addressing whether or not the parties' reservation of claims and defenses renders the judgment below non-final. The briefs have now been received and reviewed.

This court has no jurisdiction under 28 U.S.C. § 1291 because this is not an appeal from a final decision. A final decision is one which "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233 (1945). In this case, it clearly appears that there is no final judgment as to liability because it is contingent upon this court's "advisory" affirmance as to the measure of damages used by the district court. This court cannot render advisory opinions. Adcock v. Firestone Tire and Rubber Co., 822 F.2d 623, 627 (6th Cir. 1987); In re Post-Newsweek Stations, Michigan, Inc., 722 F.2d 325, 328 (6th Cir. 1983); International Union v. Dana Corp., 697 F.2d 718, 720 (6th Cir. 1983) (en banc).

Although the parties in their briefs have attempted to treat this appeal as one certified under Federal Rule of Civil Procedure 54(b), the judgment below was not capable of a Rule 54(b) certification because it is a non-final order. See Rudd Constr. Equip. Co. v. The Home Insurance Co., 711 F.2d 54 (6th Cir. 1983); Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 96 S. Ct. 1202 (1976).

Accordingly, it is ORDERED that this appeal be dismissed, and this case is REMANDED to the district court.