v. Advisorlaw LLC

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).

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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.

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