Christel v. EB Engineering, Inc.

116 P.3d 1267, 2005 Colo. App. LEXIS 435, 2005 WL 674638
CourtColorado Court of Appeals
DecidedMarch 24, 2005
DocketNo. 03CA1716
StatusPublished
Cited by3 cases

This text of 116 P.3d 1267 (Christel v. EB Engineering, Inc.) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Christel v. EB Engineering, Inc., 116 P.3d 1267, 2005 Colo. App. LEXIS 435, 2005 WL 674638 (Colo. Ct. App. 2005).

Opinion

TAUBMAN, J.

Plaintiffs, Gary Christel, Marínela Chris-tel, Theron Merrill, Evangeline Christel, and Conrad Christel (Christels), appeal from the judgment entered on a jury verdict in favor of defendants, EB Engineering, Inc., d/b/a Scott Cox & Associates, Inc., and William H. Mitzelfeld (collectively Cox). We affirm.

The Christels reside in a house that is connected to the City of Boulder’s sewer system. In 1989 and 1999, the Christels experienced two severe sewer backups in the basement of their home because of blockages in the City’s sewer main servicing their house.

As part of a settlement stemming from the second backup, the Christels agreed to allow the City to install a sewage backflow pre-venter on the sewer line from their house to [1269]*1269the City’s sewer main. Cox provided engineering consulting services for the installation.

The backflow preventer was designed to close when the City’s main sewer line backed up. However, when the backflow valve closed, it also prevented any waste from the Christels’ house from entering the City’s sewer line. Consequently, the Christels experienced numerous smaller backups in their basement because they were unaware that the backflow valve had closed.

The Christels brought this suit against Cox, the City, and one other defendant, which subsequently settled with the Chris-tels. The City moved to dismiss the Chris-tels’ claims against it on the basis that the claims were barred by the Colorado Governmental Immunity Act (GIA), § 24-10-101, et seq., C.R.S.2004. The trial court denied the City’s motion, and the City brought an interlocutory appeal pursuant to § 24-10-108, C.R.S.2004.

During the pendency of that appeal, the case proceeded against the remaining defendants, culminating in a jury verdict in their favor. The Christels then brought this appeal. While this appeal was pending, a division of this court affirmed the trial court’s order denying the City’s motion to dismiss under the GIA. See Christel v. City of Boulder, 2004 WL 1949856 (Colo.App.02CA2249, Sept. 2, 2004) (not published pursuant to C.A.R. 35(f)).

I. Subject Matter Jurisdiction

The Christels first contend that the trial court did not have subject matter jurisdiction to proceed with the jury trial following the City’s interlocutory appeal of its motion seeking dismissal of the claims against it based on governmental immunity. They argue that the City’s filing of an appeal divested the trial court of jurisdiction to proceed with the case against the remaining defendants. We disagree.

Whether a trial court retains jurisdiction to hear the claims against nongovernmental defendants while an interlocutory appeal brought by a governmental entity pursuant to § 24-10-108 is pending appears to be a question of first impression in Colorado.

A court may examine an issue of subject matter jurisdiction at any stage in the proceeding. See Walton v. State, 968 P.2d 636 (Colo.1998).

Section 24-10-108 provides in relevant part:

If a public entity raises the issue of sovereign immunity prior to or after the commencement of discovery, the court shall suspend discovery, except any discovery necessary to decide the issue of sovereign immunity, and shall decide such issue on motion. The court’s decision on such motion shall be a final judgment and shall be subject to interlocutory appeal.

A trial court’s determination that it has or lacks subject matter jurisdiction under the GIA is a final judgment. See City of Lakewood v. Brace, 919 P.2d 231 (Colo.1996). Section 24-10-108 authorizes the taking of an interlocutory appeal on an issue involving governmental immunity without the necessity of obtaining trial court certification under C.R.C.P. 54(b). Walton v. State, supra; Richland Dev. Co. v. E. Cherry Creek Valley Water & Sanitation Dist., 899 P.2d 371 (Colo.App.1995) (no C.R.C.P. 54(b) certification is required to appeal a ruling on sovereign immunity even if there are other claims pending in the trial court). The public entity has a right, not an obligation, to take an interlocutory appeal. Walton v. State, supra.

Ordinarily, once an appeal is perfected from a final judgment, jurisdiction over the case is transferred from the trial court to the appellate court with regard to the substantive issues that are the subject of the appeal. Molitor v. Anderson, 795 P.2d 266 (Colo.1990); compare Anstine v. Churchman, 74 P.3d 451 (Colo.App.2003) (an invalid notice of appeal divests the trial court of jurisdiction to consider substantive matters related to the judgment), with Woznicki v. Musick, 94 P.3d 1243 (Colo.App.2004) (premature filing of the notice of appeal from a nonfinal judgment does not divest the trial court of jurisdiction to consider further substantive issues related to the merits of the case).

[1270]*1270Interlocutory appeals are an exception to the general rule that an appeal may be taken only from a final decision. City of Lakewood v. Brace, supra. C.R.C.P. 54(b), like § 24-10-108, creates an exception to the requirement that an entire case must be resolved by a final judgment before an appeal is brought. See Harding Glass Co. v. Jones, 640 P.2d 1123 (Colo.1982).

In Nelson v. Elway, 971 P.2d 245 (Colo.App.1998), a division of this court held that the trial court retains jurisdiction over those portions of the case not affected by the partial judgment certified as final for purposes of appeal under C.R.C.P. 54(b). Thus, the division held that the trial court had jurisdiction to rule on those issues not subject to the interlocutory appeal. See 10 Moore’s Federal Practice § 202.06[1] (3d ed.1997) (district court may certify a final judgment to be entered as to fewer than all the parties or claims in an action that is immediately ap-pealable, even though the action may continue in the district court as to the other parties and claims); see also Garcia v. Burlington N. R.R., 818 F.2d 713, 721 (10th Cir.1987) (“[W]hen an interlocutory appeal is taken, the district court retains jurisdiction to proceed with matters not involved in that appeal.”).

Notwithstanding the judicial inefficiencies of conducting separate trials in litigation against private parties and governmental entities, no statute, rule, or case law divests the trial court of jurisdiction to hear a claim against a private party while an interlocutory appeal by or against a governmental entity under the GIA is pending.

Here, only the Christels’ claims against the City were the subject of the trial court’s order and the interlocutory appeal.

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Bluebook (online)
116 P.3d 1267, 2005 Colo. App. LEXIS 435, 2005 WL 674638, Counsel Stack Legal Research, https://law.counselstack.com/opinion/christel-v-eb-engineering-inc-coloctapp-2005.