The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY August 13, 2020
2020COA122
No. 20CA0041, Wilson v. Advisorlaw LLC — Appeals — Final Appealable Order; Civil Procedure — Failure to State a Claim Upon Which Relief Can be Granted — Voluntary Dismissal
A division of the court of appeals examines whether a party’s
voluntary dismissal of some claims without prejudice can create a
final judgment allowing the appeal of claims previously dismissed
by the trial court with prejudice.
Recognizing a split between federal courts, the division adopts
the “Ryan rule” that prohibits parties from voluntarily dismissing
claims without prejudice to circumvent finality hurdles. Ryan v.
Occidental Petroleum Corp., 577 F.2d 298, 302 (5th Cir. 1978),
overruled on other grounds by Curtiss-Wright Corp. v. Gen. Elec. Co.,
446 U.S. 1 (1980). Applying that rule, the division concludes that plaintiffs’ voluntary dismissal of their remaining claims without
prejudice, following the trial court’s dismissal of some claims with
prejudice under C.R.C.P. 12(b)(5), did not render the action final for
purposes of appeal. As a result, the court lacks jurisdiction to
consider the appeal. COLORADO COURT OF APPEALS 2020COA122
Court of Appeals No. 20CA0041 Boulder County District Court No. 18CV31049 Honorable Thomas F. Mulvahill, Judge
Mark Wilson and Wilson Law Ltd.,
Plaintiffs-Appellants,
v.
Dochtor Daniel Kennedy; Joshua Charles Barber; Barber Enterprises, LLC; Advisorlaw, LLC; and Stacy Santmyer,
Defendants-Appellees.
ORDER
Division A Opinion by JUDGE GOMEZ Furman and Dunn, JJ., concur
Announced August 13, 2020
HopkinsWay PLLC, Edward C. Hopkins Jr., Alexandra Tracy-Ramirez, Denver, Colorado, for Plaintiffs-Appellants
Burns, Figa, & Will, P.C., Benjamin Figa, Dana L. Eismeier, Erik K. Schuessler, Michael Y. Ley, Greenwood Village, Colorado, for Defendants-Appellees ¶1 This matter comes to us on a motion by defendants-appellees,
Advisorlaw, LLC; Barber Enterprises, LLC; Joshua Charles Barber;
Dochtor Daniel Kennedy; and Stacy Santmyer, to dismiss the
appeal for lack of a final, appealable order. After the trial court
granted defendants’ partial motion to dismiss, plaintiffs-appellants,
Mark Wilson and Wilson Law Ltd., tried to create finality by
dismissing their remaining claims without prejudice. Plaintiffs then
filed a notice of appeal seeking review of the trial court’s ruling on
the partial motion to dismiss. Defendants argue that plaintiffs’
actions didn’t create a final judgment for purposes of appeal
because a dismissal of claims without prejudice (as opposed to with
prejudice) isn’t a final judgment. We agree. Therefore, we direct
plaintiffs to cure the jurisdictional defect in their appeal within
thirty-five days if they wish to proceed with the appeal. Otherwise,
the appeal will be dismissed without prejudice for lack of
jurisdiction.
I. Background
¶2 Plaintiffs brought this civil action alleging that defendants
published false and derogatory statements about plaintiffs on a
public website and in two news articles. Plaintiffs asserted ten
1 claims, some against all five defendants and others against only
some of them.
¶3 Defendants filed a partial motion to dismiss under C.R.C.P.
12(b)(5). The trial court granted the motion, dismissing with
prejudice five of plaintiffs’ claims in their entirety and another claim
in part. This left four claims remaining, as well as part of a fifth
claim. Plaintiffs voluntarily dismissed those remaining claims
without prejudice under C.R.C.P. 41(a)(1)(A), and the trial court
closed its case.
¶4 Plaintiffs then filed a notice of appeal with this court, seeking
review of the trial court’s order granting the partial motion to
dismiss. Defendants moved to dismiss the appeal on jurisdictional
grounds.
II. Applicable Law
¶5 A state statute confers initial jurisdiction in this court “over
appeals from final judgments of . . . the district courts . . . .”
§ 13-4-102(1), C.R.S. 2019; see also C.A.R. 1(a)(1) (“An appeal to
the appellate court may be taken from . . . [a] final judgment of any
district . . . court . . . .”).
2 ¶6 Because this court’s jurisdiction is conferred by statute, we
cannot expand its scope beyond this legislative grant. We have
“no authority to expand [our] appellate jurisdiction” beyond that
“‘specified by’ the General Assembly, and . . . cannot ‘modify the
jurisdiction granted [us] by statute.’” People in Interest of L.R.B.,
2019 COA 85, ¶ 15 (quoting Holdridge v. Bd. of Educ., 881 P.2d
448, 450-51 (Colo. App. 1994); accord People v. Meyers, 43 Colo.
App. 63, 64, 598 P.2d 526, 527 (1979)).
¶7 Thus, “[a] final judgment is a jurisdictional prerequisite to
review on appeal.” Brody v. Bock, 897 P.2d 769, 777 (Colo. 1995).
A final judgment is one “which ends the particular action in which
it is entered, leaving nothing further for the court pronouncing it to
do in order to completely determine the rights of the parties
involved in the proceeding.” Harding Glass Co. v. Jones, 640 P.2d
1123, 1125 n.2 (Colo. 1982) (quoting D.H. v. People, 192 Colo. 542,
544, 561 P.2d 5, 6 (1977)). “A dismissal with prejudice is a final
judgment; it ends the case and leaves nothing further to be resolved
concerning the dispute between the parties.” Foothills Meadow v.
Myers, 832 P.2d 1097, 1098 (Colo. App. 1992).
3 ¶8 Ordinarily, “an entire case must be decided before any ruling
in that case can be appealed.” People v. G.S., 2018 CO 31, ¶ 37
(quoting Cyr v. Dist. Court, 685 P.2d 769, 770 (Colo. 1984)). But
there are limited circumstances in which a party to a civil case may
take an interlocutory appeal before an entire case is final. For
instance, C.R.C.P. 54(b) “permits a trial court ‘to direct the entry of
a final judgment as to one or more but fewer than all of the claims
or parties’” if the court expressly determines there is no just reason
for delay and expressly directs the entry of judgment. Id. at ¶ 39
(quoting Lytle v. Kite, 728 P.2d 305, 308 (Colo. 1986)). Also, under
C.A.R. 4.2, this court has discretion, under certain circumstances,
to permit an interlocutory appeal of a question of law certified by a
trial court or stipulated to by the parties. Affiniti Colo., LLC v.
Kissinger & Fellman, P.C., 2019 COA 147, ¶¶ 10-12; see also
§ 13-4-102.1(1), C.R.S. 2019. And, under C.A.R. 21, the supreme
court has discretion to exercise its original jurisdiction over
interlocutory matters. People v. Tafoya, 2019 CO 13, ¶ 13.1
1 Other statutes and rules expressly permit interlocutory appeals, either as a matter of right or as a matter of court discretion, for certain types of civil rulings. See, e.g., § 13-20-901(1), C.R.S. 2019
4 III. Analysis
¶9 Defendants moved to dismiss this appeal because plaintiffs
dismissed some of their claims without prejudice. Defendants cite
Brody, in which our supreme court held that “[g]enerally, a trial
court’s dismissal of a claim without prejudice does not constitute a
final judgment for purposes of appeal because the factual and legal
issues underlying the dispute have not been resolved.” 897 P.2d at
777. Under this rule, defendants argue, plaintiffs’ dismissal
without prejudice didn’t create the requisite finality to imbue this
court with jurisdiction over their appeal. We agree.
¶ 10 Plaintiffs acknowledge that a final judgment is a prerequisite
to review on appeal and that, under Brody, an order dismissing
claims without prejudice generally doesn’t constitute a final order.
But, they argue, their case falls within an exception to this general
rule because the dismissal of some claims with prejudice under
(orders granting or denying class certification); § 13-22-228(1), C.R.S. 2019 (orders concerning arbitration); § 24-10-108, C.R.S. 2019 (orders concerning sovereign immunity); § 24-10-118(2.5), C.R.S. 2019 (same); C.A.R. 1(a)(3) (orders granting or denying temporary injunctions); C.A.R. 1(a)(4) (orders involving appointment or discharge of receivers). We are concerned here with matters that fall outside the scope of these exceptions.
5 Rule 12(b)(5) worked “in tandem” with the voluntary dismissal of
the remaining claims without prejudice “to resolve all issues and
claims and close the action.” In other words, plaintiffs assert that a
voluntary dismissal without prejudice, coupled with a partial
dismissal with prejudice, falls within an exception to the general
rule precluding dismissals without prejudice from being final for
appellate purposes.
¶ 11 We agree that there are exceptions to the general rule.
Notably, if a case cannot be resurrected — for instance, if the
claims would be time barred or would be precluded from reassertion
based on the court’s ruling — then the judgment is considered final
and appealable despite the dismissal of one or more claims without
prejudice. See, e.g., Spiremedia Inc. v. Wozniak, 2020 COA 10, ¶ 14
(“[A] dismissal without prejudice is a final judgment if the statute of
limitations period has expired or the dismissal otherwise results in
prohibiting further proceedings.”); Avicanna Inc. v. Mewhinney,
2019 COA 129, ¶ 1 n.1 (“Where . . . the circumstances of the case
indicate that the action cannot be saved and that the district court’s
order precludes further proceedings, dismissal without prejudice
qualifies as a final judgment for the purposes of appeal.”).
6 ¶ 12 But no Colorado authority supports application of an
exception when some claims are dismissed with prejudice while
others are voluntarily dismissed without prejudice under C.R.C.P.
41(a)(1). Plaintiffs cite Burden v. Greeven, 953 P.2d 205 (Colo. App.
1998), but that case doesn’t support such an exception. In Burden,
the trial court granted the defendants’ C.R.C.P. 12(b)(2) motion to
dismiss for lack of personal jurisdiction, and then determined that
the plaintiff’s C.R.C.P. 41(a)(1) notice of voluntary dismissal (filed
while the motion to dismiss was pending) was moot. 953 P.2d at
207. A division of this court recognized that it had jurisdiction over
an appeal from those rulings because, notwithstanding that the
dismissal was without prejudice, the trial court’s ruling on the issue
of personal jurisdiction meant “the action cannot be saved by
amendment to the complaint.” Id. Burden, therefore, falls within
the same exception noted above. Cf. Wilbourn v. Hagan, 716 P.2d
485, 485-86 (Colo. App. 1986) (a dismissal based on determination
that the defendants weren’t subject to personal jurisdiction under
Colorado’s long-arm statute “constituted a final determination that
[the] defendants were not subject to the court’s jurisdiction . . .
[and] is therefore a final order for purposes of appeal”).
7 ¶ 13 The common feature which Burden and these other cases
share — but which this case does not — is the plaintiffs’ inability to
pursue the claims further, in either the same or a later action.
Although the claims in those cases had been dismissed without
prejudice, other limitations, like the statute of limitations or the
bounds of personal jurisdiction, barred their reassertion. There is
no indication that any such limitation exists here, so nothing would
preclude plaintiffs from reasserting the very same claims they
dismissed without prejudice.
¶ 14 Although no Colorado case has examined whether a party’s
voluntary dismissal of some claims without prejudice can create a
final judgment allowing the appeal of claims previously dismissed
with prejudice, several federal courts, including the United States
Court of Appeals for the Tenth Circuit, have. Following the
so-called “Ryan rule,” the Tenth Circuit has declared that “[p]arties
may not confer appellate jurisdiction upon us by obtaining a
voluntary dismissal without prejudice of some claims so that others
may be appealed.” Heimann v. Snead, 133 F.3d 767, 769 (10th Cir.
8 1998).2 And, when confronted with the precise circumstance
presented in this case, the Tenth Circuit held that “when a plaintiff
voluntarily requests dismissal of her remaining claims without
prejudice in order to appeal from an order that dismisses another
claim with prejudice, we conclude that the order is not ‘final’ for
purposes of [28 U.S.C.] § 1291.” Cook v. Rocky Mountain Bank Note
Co., 974 F.2d 147, 148 (10th Cir. 1992).
¶ 15 Although cases among the federal circuits (and even within
some circuits) are in conflict, several decisions espouse this same
bright line rule. See, e.g., Blue v. D.C. Pub. Schs., 764 F.3d 11, 17
(D.C. Cir. 2014) (“[O]ur circuit treats voluntary but non-prejudicial
2 The “Ryan rule” is named after a case from the Fifth Circuit that first adopted the rule prohibiting parties from voluntarily dismissing claims without prejudice to circumvent finality hurdles. Ryan v. Occidental Petroleum Corp., 577 F.2d 298, 302 (5th Cir. 1978) (“[A] voluntary dismissal is not appealable by the plaintiff in the absence of some condition adverse to him. This is because in a voluntary dismissal a plaintiff gets what he seeks, i.e., a dismissal without an adjudication on the merits, and he is entitled to bring a later suit on the same cause of action. Thus, although the plaintiff here attempts to appeal only the adverse rulings dismissing and striking all of or parts of [some portions] of his complaint, he cannot convert these rulings into a final judgment . . . .”) (citations omitted), overruled on other grounds by Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1 (1980).
9 dismissals of remaining claims as generally insufficient to render
final and appealable a prior order disposing of only part of the
case.”); Arrow Gear Co. v. Downers Grove Sanitary Dist., 629 F.3d
633, 636 (7th Cir. 2010) (“[A] decision is not final for purposes of
appellate jurisdiction if the court rendering it has dismissed one or
more of the plaintiff’s claims, or one or more of the defendants, with
leave to refile.”); Rabbi Jacob Joseph Sch. v. Province of Mendoza,
425 F.3d 207, 210-11 (2d Cir. 2005) (“[I]mmediate appeal is
unavailable to a plaintiff who seeks review of an adverse decision on
some of its claims by voluntarily dismissing the others without
prejudice.”); Swope v. Columbian Chems. Co., 281 F.3d 185, 192-93
(5th Cir. 2002) (“It is a settled rule in the Fifth Circuit that appellate
jurisdiction over a non-final order cannot be created by dismissing
the remaining claims without prejudice.”); State Treasurer v.
Barry, 168 F.3d 8, 13 (11th Cir. 1999) (“[V]oluntary dismissals,
granted without prejudice, are not final decisions themselves and
also do not transform an earlier partial dismissal or partial
summary judgment order into a final decision.”); see also Waugh
Chapel S., LLC v. United Food & Commercial Workers Union Local 27,
728 F.3d 354, 359 (4th Cir. 2013) (allowing appeal to proceed only
10 by deeming the voluntary dismissal to be with prejudice); Tiernan v.
Devoe, 923 F.2d 1024, 1031 (3d Cir. 1991) (allowing appeal to
proceed only after the appellants “renounced . . . any intention to
take further action” on the claims dismissed without prejudice).
¶ 16 Even where they espouse a bright line rule, however, the
courts have often recognized exceptions, for instance where parties
dismissed some claims without prejudice before (rather than after)
other claims were resolved on the merits, see, e.g., Barone v. United
Airlines, Inc., 355 F. App’x 169, 179 (10th Cir. 2009) (unpublished
opinion); Schoenfeld v. Babbitt, 168 F.3d 1257, 1265-66 (11th Cir.
1999), where the claims that were dismissed without prejudice
couldn’t be reasserted for other reasons (such as the running of the
statute of limitations or an adverse legal ruling that would preclude
a claim), see, e.g., Arrow Gear, 629 F.3d at 636-37; Barone, 355
F. App’x at 179; Jackson v. Volvo Trucks N. Am., Inc., 462 F.3d
1234, 1238 (10th Cir. 2006), or where other circumstances
warranted consideration of the appeal, see, e.g., 84 Lumber Co. v.
Cont’l Cas. Co., 914 F.3d 329, 333 (5th Cir. 2019) (a plaintiff can
appeal an adverse ruling even if the defendant, following the ruling,
dismisses its remaining third party claim without prejudice).
11 ¶ 17 Some courts, however, have adopted more lenient approaches,
allowing parties to create finality in much the same way plaintiffs
did here, particularly if the trial court approved the voluntary
dismissal and if there was no intent to manipulate appellate
jurisdiction. See, e.g., James v. Price Stern Sloan, Inc., 283 F.3d
1064, 1070 (9th Cir. 2002) (“[W]hen a party that has suffered an
adverse partial judgment subsequently dismisses remaining claims
without prejudice with the approval of the district court, and the
record reveals no evidence of intent to manipulate our appellate
jurisdiction, the judgment entered after the district court grants the
motion to dismiss is final and appealable . . . .”); Hicks v. NLO, Inc.,
825 F.2d 118, 120 (6th Cir. 1987) (“[P]laintiff’s dismissal with the
concurrence of the court of the only count of her complaint which
remained unadjudicated imparted final[i]ty to the District Court’s
earlier order granting summary judgment.”). Plaintiffs point out
that at least one state — Oklahoma — has adopted such an
approach. See Raven Res., L.L.C. v. Legacy Bank, 229 P.3d 1273,
1278 (Okla. Civ. App. 2009) (“[A]n order of dismissal that
terminates an action without prejudice is appealable even though a
new suit might later be brought on the same claim against the same
12 defendants.’” (quoting Patmon v. Block, 851 P.2d 539, 543 (Okla.
1993))).
¶ 18 We find the reasoning supporting the bright line rule to be
compelling and, therefore, we adopt that rule. The federal circuits
have outlined various reasons supporting this rule, most of which
apply equally in this state.
¶ 19 First, the circuits have invoked the concerns of judicial
efficiency and the prevention of piecemeal appeals — concerns that
underlie the final judgment rule in Colorado as well as in the federal
system. See Harding Glass, 640 P.2d at 1127 (expressing concern
for “avoid[ing] the dissipation of judicial resources through
piecemeal appeals”) (citing federal authorities).
¶ 20 As one court explained, “exercising jurisdiction” in split
judgment cases, where some claims are dismissed with prejudice
and some without, “would undermine the policies of judicial
efficiency, avoiding piecemeal litigation, and district court
independence that are the basis of the final judgment rule.” Barry,
168 F.3d at 13 (quoting Constr. Aggregates, Ltd. v. Forest
Commodities Corp., 147 F.3d 1334, 1336 (11th Cir. 1998)); accord
Blue, 764 F.3d at 18 (“Non-prejudicial dismissals of remaining
13 parties . . . [or] claims . . . could be used to generate overlapping
lawsuits, piecemeal appeals, and splintered and harassing
litigation.”); Arrow Gear, 629 F.3d at 636 (“[Appellant’s] maneuver,
if allowed, would prevent the entirety of the contested issues,
involving all the parties, from being resolved in a single appeal; it
would exemplify piecemeal appealing, which is disfavored in the
federal court system.”); Rabbi Jacob Joseph Sch., 425 F.3d at 210
(“Tolerance of that practice would violate the long-recognized federal
policy ‘against piecemeal appeals.’”) (citation omitted).
¶ 21 Second, the courts have reasoned that split judgments are not
actually final. While one might argue that in such a case the
litigation has technically ended and the trial court has nothing
further to do but execute the judgment, in actuality “the litigation
has not been terminated on the merits” because the dismissal
without prejudice “is not an adverse final ruling” and “leaves the
dismissed claim for another day.” Barry, 168 F.3d at 14; see also
Cook, 974 F.2d at 148 (noting that the plaintiff “remains free to file
another complaint raising those same claims”); Arrow Gear, 629
F.3d at 637 (expressing similar concerns).
14 ¶ 22 Third, the courts have raised concerns about circumvention of
the available avenues for interlocutory review — particularly Fed. R.
Civ. P. 54(b), which is comparable to C.R.C.P. 54(b). See Allison v.
Engel, 2017 COA 43, ¶ 25 n.3. For instance, after the trial court in
Cook declined to grant Fed. R. Civ. P. 54(b) certification on a claim
that had been dismissed with prejudice, the plaintiff dismissed the
other claims without prejudice and tried to appeal anyway. 974
F.2d at 148. In response, the Tenth Circuit wrote, “a plaintiff
cannot be allowed to undermine the requirements of Rule 54(b) by
seeking voluntarily [sic] dismissal of her remaining claims and then
appealing the claim that was dismissed with prejudice.” Id.
¶ 23 Another circuit court put it more bluntly:
[R]outinely allowing appeals from non-prejudicial dismissals would undermine Rule 54(b)’s careful limits on piecemeal appeals. If a party’s non-prejudicial dismissal of any still-pending claims could, without more, render final and appealable any earlier order disposing of other claims, litigants, not district judges, would control the timing of appeal. Parties could agree to appeal their suit in stages, periodically dismissing all remaining claims without prejudice as they went, agreeing to reinstate them once the court of appeals weighed in on individual issues. The resulting fragmentary appeals would burden courts and litigants, foster uncertainty, and
15 undermine the salutary aims that Rule 54(b) and the final judgment rule promote.
Blue, 764 F.3d at 18; see also Barry, 168 F.3d at 14 (“[R]epealing
Ryan’s rule significantly erodes Rule 54(b).”).
¶ 24 Fourth, the courts have held that parties have adequate
alternative options — including waiting until the final claims are
resolved to take an appeal, dismissing any remaining claims with
prejudice, or taking an interlocutory appeal under Fed. R. Civ. P.
54(b) or 28 U.S.C. § 1292(b) (2018), if appropriate — to protect their
interests and provide access to appellate review. For instance,
before recently changing course on its rule, the Eleventh Circuit
recognized that, although it may lead litigants to confront difficult
choices about which steps to take, Ryan’s rule doesn’t permanently
deny an appeal. Barry, 168 F.3d at 15-16.3 “Instead, what denies a
party an appeal is the strategic choice an appellant makes in
3 The Eleventh Circuit recently acknowledged its conflicting case law on the issue and reverted to its earliest-precedent rule — that “an order granting a motion to voluntarily dismiss the remainder of a complaint under Rule 41(a)(2) ‘qualifies as a final judgment for purposes of appeal.’” Corley v. Long-Lewis, Inc., ___ F.3d ___, ___, No. 18-10474, 2020 WL 4006602, at *5 (11th Cir. July 16, 2020) (quoting McGregor v. Bd. of Comm’rs, 956 F.2d 1017, 1020 (11th Cir. 1992)).
16 attempting to craft appellate jurisdiction by dismissing, or agreeing
to the opposing party’s dismissing, a remaining claim without
prejudice in order to appeal an adverse non-final decision over other
claims.” Id. at 16; see also Swope, 281 F.3d at 193 (“[T]he Ryan
rule requiring Rule 54(b) certification to create finality will not
prevent an appeal where one is warranted.”).
¶ 25 Finally, the courts have recognized the bright line rule’s
advantages of predictability and avoiding inquiry and speculation
about a party’s motivations. See, e.g., Williams v. Seidenbach, 958
F.3d 341, 357 (5th Cir. 2020) (“[T]he malleable, case-by-case
approach . . . enervates § 1291 finality, and predictability, by
inviting inconsistent intra-circuit outcomes.”); Swope, 281 F.3d at
194 (“[W]e . . . reject the ‘practice of combing the record for
manipulative intent’ since it ‘waste[s] resources better spent on the
merits of an appeal.’”) (citation omitted).
¶ 26 In particular, making jurisdictional decisions based on
whether parties “inten[ded] to manipulate . . . appellate
jurisdiction,” as the Ninth Circuit does, can be highly subjective
and uncertain. James, 283 F.3d at 1070. It’s not entirely clear
what courts mean by “an intent to manipulate appellate
17 jurisdiction,” as in most cases the whole point of dismissing
remaining claims is to create finality and allow an immediate appeal
of an earlier adverse order. But, as examples, the Ninth Circuit has
found an “intent to manipulate” in circumstances where the parties
stipulated that the plaintiff could reinstate the dismissed claims if
the judgment was reversed on appeal, where the plaintiff refiled the
dismissed claims in a new case simultaneously with taking an
appeal in the first case, and where a plaintiff refused to proceed on
his or her claims, prompting the court to dismiss those claims for
failure to prosecute, and then used that dismissal to appeal an
interlocutory procedural ruling. See id. at 1066-67 (summarizing
cases). The bright line approach creates more certainty and
predictability by avoiding the need to inquire into such facts (which
may lie outside the record) or to make distinctions based on
assumptions about the parties’ actions and motivations.
¶ 27 Plaintiffs argue that the bright line rule is wrong, as it conflicts
with United States Supreme Court precedent. But the case they
cite, United States v. Wallace & Tiernan Co., 336 U.S. 793 (1949), is
distinguishable. In that case, the trial court dismissed an antitrust
action without prejudice after denying a motion to compel discovery
18 that was essential for the government to prove its antitrust claims.
Id. at 794 n.1. The Supreme Court held the government’s appeal
could proceed, notwithstanding that the dismissal was without
prejudice, because the government hadn’t sought the dismissal and
because the trial court’s discovery ruling had effectively concluded
the case. See id. (“The record fails to sustain appellees’ contention
that the Government invited the court to enter this order denying
relief and dismissing the action. That the dismissal was without
prejudice to filing another suit does not make the cause
unappealable, for denial of relief and dismissal of the case ended
this suit so far as the District Court was concerned.”). It’s clear
from the opinion that, without the subject discovery, the
government couldn’t pursue its claims. Thus, the Supreme Court’s
ruling is consistent with the circuit decisions holding, even under
the bright line approach, that where claims dismissed without
prejudice can’t be reasserted for other reasons, they are considered
final for appellate purposes. See, e.g., Arrow Gear, 629 F.3d at
636-37; Jackson, 462 F.3d at 1238.
¶ 28 Plaintiffs also argue that they shouldn’t be punished for
exercising their “right to dismiss an action without question or
19 punishment.” But plaintiffs retain the right, under C.R.C.P.
41(a)(1), to dismiss their claims before an answer or summary
judgment motion is filed or at any time thereafter upon stipulation
of all the parties. They simply can’t use such a dismissal to create
finality as to an earlier, adverse order.
¶ 29 Finally, plaintiffs argue that they should be able to opt for
what they perceive as a more efficient and inexpensive resolution of
their claims and issues. Plaintiffs note, correctly, that there was no
guarantee they would’ve been permitted to take an interlocutory
appeal under either C.R.C.P. 54(b) or C.A.R. 4.2. The scope of
interlocutory appeals available under these rules is limited — and
purposefully so. Those limitations reflect careful consideration by
the General Assembly (for instance, in its enactment of section
13-4-102.1(1), which prompted the adoption of C.A.R. 4.2) and the
Colorado Supreme Court Civil and Appellate Rules Committees to
balance the interests of allowing interlocutory appeals in limited
circumstances with the interests of maximizing judicial efficiency
and minimizing piecemeal appeals.
¶ 30 The requirements for taking interlocutory appeals under the
rules reflect that careful balance. See, e.g., Harding Glass, 640
20 P.2d at 1127 (C.R.C.P. 54(b) requires, among other things, that an
entire claim for relief be finally adjudicated, a requirement that
“avoid[s] the dissipation of judicial resources through piecemeal
appeals”); Affiniti Colo., ¶ 12 (review under C.A.R. 4.2 requires,
among other things, that “immediate review may promote a more
orderly disposition or establish a final disposition of the litigation”);
see also People v. Tafoya, 2019 CO 13, ¶ 13 (C.A.R. 21 review is “an
extraordinary remedy that is limited both in its purpose and
availability” but may apply, for instance, in situations where “an
appellate remedy would be inadequate, . . . a party may suffer
irreparable harm absent relief, . . . [or a] case[] . . . ‘raise[s] issues of
significant public importance that [the supreme court] ha[s] not yet
considered’” (quoting Wesp v. Everson, 33 P.3d 191, 194 (Colo.
2001))) (citations omitted).
¶ 31 Where a case doesn’t satisfy the requirements of the rules,
allowing an interlocutory appeal would upset that carefully crafted
balance and would thwart the legislature’s and the rule committees’
intent. It would also be inappropriate, in our view, given the limited
statutory jurisdiction of our court.
21 ¶ 32 Plaintiffs thus had five options when the trial court dismissed
some, but not all, of their claims with prejudice:
litigate the remaining claims to finality and then proceed
with an appeal of the entire case;
dismiss their remaining claims with prejudice, which
would have created a final judgment, see Foothills
Meadow, 832 P.2d at 1098;
seek certification of the dismissed claims under C.R.C.P.
54(b), if appropriate, and, if the trial court granted the
certification, file an appeal as to those claims;
pursue an interlocutory appeal to this court through
C.A.R. 4.24; or
pursue an original proceeding in the supreme court
through C.A.R. 21.
¶ 33 We express no opinion as to whether the resolved claims and
issues would satisfy the requirements of C.R.C.P. 54(b) or C.A.R.
4.2. We simply note that these were some of the paths available to
4 To pursue this option, plaintiffs would’ve had to seek certification by the trial court or submit a stipulation signed by all parties within fourteen days of the order they wished to appeal. C.A.R. 4.2(c).
22 plaintiffs for taking an interlocutory appeal, and that plaintiffs
didn’t attempt to pursue them before taking this appeal.
IV. Conclusion
¶ 34 For the foregoing reasons, we conclude that plaintiffs’
voluntary dismissal of their remaining claims without prejudice,
following the trial court’s dismissal of some claims with prejudice
under C.R.C.P. 12(b)(5), did not render the action final for purposes
of appeal. As a result, this court currently lacks jurisdiction to
consider the appeal. See Brody, 897 P.2d at 777.
¶ 35 However, we will defer a ruling on defendants’ motion to
dismiss the appeal for thirty-five days to allow plaintiffs a chance to
correct the jurisdictional defect. They may either obtain a C.R.C.P.
54(b) certification (if appropriate) or dismiss with prejudice the
unadjudicated claims, if they wish to do so. If plaintiffs do not
obtain and present to this court such a certification or dismissal
within that time period, the appeal will be dismissed without
prejudice for lack of appellate jurisdiction.
JUDGE FURMAN and JUDGE DUNN concur.