of Chavez , 2020 COA 70 ( 2020 )

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
April 16, 2020
2020COA70
No. 19CA1458, Interest of Chavez — Appeals — Final
Appealable Order — Colorado Rules of Appellate Procedure —
Motions
A division of the court of appeals holds that a party filing a
notice of appeal should not also file a motion asking the court to
determine whether the appeal is premature.
COLORADO COURT OF APPEALS 2020COA70
Court of Appeals No. 19CA1458
Douglas County District Court No. 18PR30128
Honorable Patricia D. Herron, Judge
In the Interest of
Marie M. Chavez
and
Gilbert M. Chavez,
Appellant and Cross-Appellee,
v.
Teresa Chavez, Conservator,
Appellee and Cross-Appellant.
APPEAL AND CROSS-APPEAL DISMISSED
Division A
J. Jones, Welling, and Grove, JJ.
PER CURIAM
Announced April 16, 2020
Gill & Ledbetter, LLP, Anne Whalen Gill, Castle Rock, Colorado, for Appellant
and Cross-Appellee
Wade Ash Woods Hill & Farley, P.C., Jody J. Pilmer, Denver, Colorado, for
Appellee and Cross-Appellant
¶1 In this probate matter, counsel for appellant Gilbert M. Chavez
(son) filed a notice of appeal on behalf of son with a “motion to
determine jurisdiction.” We conclude that the appeal is clearly
premature and take this opportunity to clarify the court’s procedure
for reviewing motions and screening appeals for jurisdictional
defects. We also disapprove of counsel’s use of a “motion to
determine jurisdiction,” as it improperly shifts counsel’s obligation
to ascertain finality to this court while seeking what ultimately is an
advisory opinion. Therefore, we dismiss the appeal and cross-
appeal without prejudice for lack of a final order.
I. Procedural Background
¶2 The underlying probate matter began in March 2018 when
Teresa Chavez (daughter) filed a petition for appointment of a
conservator for Marie M. Chavez (mother). In the petition, daughter
alleged that son had, without authority, quitclaimed mother’s home
to himself and his wife for no consideration. She also alleged that
son had added himself to multiple bank accounts owned by mother
and then transferred large sums from those accounts to bank
accounts controlled solely by son and for his individual benefit.
1
¶3 The district court appointed daughter as conservator for
mother in August 2018, and on September 14, 2018, daughter filed
a petition against son claiming, in pertinent part, breach of
fiduciary duty, civil theft, unjust enrichment, and surcharge.
¶4 In February 2019, the court held a five-day jury trial on the
petition, and the jury returned verdicts against son for breach of
fiduciary duty, civil theft, and unjust enrichment.
¶5 On April 1, 2019, the district court entered an “order
regarding the jury verdicts of February 15, 2019 and other matters”
in which the court addressed the claims reserved for the court after
the jury trial. Of note, that order states as follows:
[Daughter] seeks a surcharge against [son] for
any damage or loss to [mother’s] estate
pursuant to § 15-10-504(2), C.R.S. [Daughter]
intends to submit a Bill of Costs which will
also include an affidavit of attorney’s fees. The
Court will review the submissions upon filing.
....
[Daughter] seeks the damage determination
rendered by the jury regarding the civil theft
claim be trebled and that the estate receive an
award of its attorney’s fees and costs.
[Daughter] believes that the $70,901.17 paid
by [son] prior to the beginning of trial be
recognized as an offset.
2
The $70,901.17 is recognized as an offset. As
this amount was paid prior to trial it does not
negate the finding of theft but it results in a
complete offset and the resulting judgment is
zero. There is nothing to treble. The Court
will award attorney’s fees as provided by
statute and the Court will await the
submission of the affidavit of attorney’s fees.
¶6 On August 6, 2019, counsel for son filed a notice of appeal on
his behalf, along with a “motion to determine jurisdiction” with this
court.1 In the section of the notice of appeal where counsel is to
1The Colorado Appellate Rules do not expressly permit the type of
motion we address here. See C.A.R. 27. Nonetheless, we
acknowledge that a part of the Colorado Practice Series on Appellate
Law authored by son’s counsel includes the following under a
section titled “Protective notice of appeal”:
Sometimes a litigant is unsure whether there
is a final judgment, or an attorney is unsure
whether a client will choose to pursue an
appeal. They may be unable to resolve this
concern within the time for filing a notice of
appeal. These are two reasons for filing a
so-called “protective notice of appeal.” The
purpose of a protective notice of appeal is to
preserve the right to appeal when a litigant is
unsure whether the order is final or counsel is
unsure whether the client will want to pursue
an appeal. . . . If the role of the protective
notice of appeal is to determine whether the
order is appealable, counsel may want to file a
motion to determine jurisdiction. This will
allow the Court of Appeals to promptly resolve
3
indicate whether there is a final judgment, counsel writes, “There is
a question whether the judgment is final. There are issues as to
attorney fees under the civil theft statute and as to prejudgment
interest.” The accompanying motion states, in its entirety, as
follows:
Gilbert Chavez, through undersigned counsel,
requests this Court to determine its
jurisdiction over the appeal he filed August [6],
2019. As grounds, he states:
1. The notice of appeal identified an April 1,
2019 order on jury verdicts and a June 17,
2019 Order on post-trial motions as the orders
challenged in the appeal.
2. In the notice of appeal, Appellant indicated
there is question whether these orders are final
for purposes of appeal.
3. The issue of prejudgment interest has not
been decided. Pursuant to Grand County
Custom Homebuilding, LLC v. Bell, 148 P.3d
the appealable nature of the order and set
everyone’s mind at ease as to whether the
appeal will go forward or whether the order is
not appealable and trial proceedings should
continue.
18 Anne Whalen Gill, Colorado Practice Series: Appellate Law and
Practice § 12:13, Westlaw (3d ed. database updated Aug. 2019). As
we discuss in more detail later, we disapprove of counsel’s use of a
motion to determine jurisdiction.
4
398, 401 (Colo. App. 2006), prejudgment
interest is a component of damages and the
amount of prejudgment interest must be
determined for the judgment to be final. See
also Hall v. American Standard Life Ins. Co. of
[Wis.], 2012 COA 201, 292 P.3d 1196;
Andrews v. Picard, 199 P[].3d 6 (Colo. App.
2007).
4. Counsel understands that there is also an
issue of attorney fees outstanding. If the fees
are part of damages, they[] too must be
determined for the judgment to be final.
WHEREFORE Appellant requests this Court to
determine whether the challenged orders are
final and ripe for appeal.
¶7 Counsel for daughter filed a notice of cross-appeal on August
19, 2019. It states:
[Daughter] affirmatively asserts that in
addition to not yet having ruled upon the
issues of civil theft damages in the nature of
attorney fees and costs and the issue of pre
and post judgment interest as damages, the
trial court has not yet ruled on the issue of
attorney fees and costs in the nature of
surcharge damages as permitted by C.R.S.
§ 15-10-504(2) and specifically pled by
[daughter].
¶8 After review by a member of this court’s staff, the motion to
determine jurisdiction was presented to this division for a ruling.
We deferred ruling and ordered counsel to address why the court
5
should not award attorney fees and costs related to the premature
notice of appeal against her individually based on her affirmative
statement that prejudgment interest had yet to be calculated to a
sum certain, with citation to uniform authority from this court that
such a deficiency defeats finality.2
¶9 Counsel responded, arguing as follows:
 “The issue of whether there are orders ripe for appeal is
less clear than the November 13, 2019 order suggests.”
 “[F]ollowing Scott v. Scott, 136 P.3d 892 (Colo. 2006), it
has been challenging to determine which orders in
probate proceedings trigger the time to appeal.”
 “Counsel has advanced legal argument to support her
request for this Court to determine jurisdiction, based on
the actions in the trial court which suggest finality and
ripeness for appeal. She complied with her duty under
Colo. R. P. 1.3 in promptly raising a threshold question
2 Though both H.J. “Jay” Ledbetter and Ms. Gill entered
appearances on behalf of son, we ordered only Ms. Gill to show
cause because she signed both the notice of appeal and the motion
to determine jurisdiction.
6
whether this matter is ripe for appeal. Raising the
question is not frivolous under Colo. R. P. 3.1 as there
are indications in the record that the trial court and the
parties in the trial court were acting as if there was a
final judgment.”
 “Counsel has advanced a rational argument and relied on
this Court’s historical approach to determining
jurisdiction as a threshold matter. See Western United
Realty, Inc. v. Isaacs, 679 P.2d 1063 (Colo. 1984).”
 “If counsel’s actions improperly instigated or prolonged
litigation, this is a change of policy for this Court.”
¶ 10 We now make the order to show cause absolute and dismiss
the appeal without prejudice for lack of a final judgment.
II. Motions Practice in the Court of Appeals
¶ 11 Motions practice is quite limited in the appellate context.
C.A.R. 27 covers the filing and resolution of motions in this court.
See C.A.R. 27(a)(2)(A) (“A motion must state with particularity the
grounds for the motion, the relief sought, and the legal argument
necessary to support it.”); C.A.R. 27(b) (“The court may act on a
stipulated motion signed by all parties or a motion for a procedural
7
order, including a motion under Rule 26(b), at any time without
awaiting a response.”); C.A.R. 27(c) (“[A] single . . . judge may act
alone on non-dispositive motions and on voluntary or uncontested
dispositive motions. . . . The court or a division of the court may
review the action of a single . . . judge.”).
¶ 12 When a party to an appeal files a motion, most often a staff
attorney reviews the motion and then it is either ruled on or
presented to one or three judges for resolution.3 The three judge
panel determining motions rotates monthly and is generally referred
to as the “motions division.” James S. Casebolt, Procedures and
Policies of the Colorado Court of Appeals, 24 Colo. Law. 2105, 2105
(1995); see also Colorado Appellate Handbook § 11 (Hon. Alan M.
Loeb ed., 2017 ed.). In contrast, the division considering the merits
of an appeal is colloquially called the “merits division.” See In re
Marriage of January, 2019 COA 87, ¶ 9.
3 A general overview of the protocols of the court of appeals,
including the types of staff employed by the court, can be found on
the court of appeals’ website, Colorado Judicial Branch, Protocols,
https://perma.cc/7W6K-4P6V.
8
¶ 13 Because the court of appeals is a divisional court, § 13-4-
106(1), C.R.S. 2019, “all divisions function independently from each
other . . . . Each independent panel decides its cases in light of its
own interpretation of binding and persuasive authority.” Casebolt,
24 Colo. Law. at 2106. Accordingly, while a division may defer to
the determination of another division, divisions are not bound by
the decisions of other divisions — including a motions division.
Allison v. Engle, 2017 COA 43, ¶ 22 (merits division is not bound by
a motions division’s determination of jurisdiction); People in Interest
of A.V., 2012 COA 210, ¶ 11 n.1 (“One division is not bound by the
holding of another division.”).
¶ 14 Meanwhile, all civil cases are screened by court staff for
jurisdictional defects. This screening is independent of the
presentation of any motions and is part of the court’s obligation,
discussed in Part III below, to ensure that it has jurisdiction over an
appeal. When there is a question regarding the court’s jurisdiction
raised by court staff, the court will issue an order to show cause
directing the appellant or the parties to address the court’s
concerns. Responses are routinely presented to a motions division
for resolution. In general, a motions division will either (1)
9
discharge the show cause order; (2) dismiss the appeal with or
without prejudice; or (3) defer the jurisdictional issue to a merits
division.4
¶ 15 Jurisdictional screening can occur at any time during the life
of an appeal, as it is counsel’s obligation to ensure the order on
appeal is final and the notice of appeal is timely filed. C.A.R. 4(a).
¶ 16 Our concern about premature notices of appeal is not
technical or academic. Premature appeals create significant wastes
of time and resources. The appellate court (and the parties)
unnecessarily expend resources when a party pursues a premature
appeal. And perhaps more importantly, because the filing of a
notice of appeal deprives the lower court of jurisdiction, unresolved
claims and issues languish, postponing true finality. This case
4 A similar process is followed when a party raises a jurisdictional
issue in a motion to dismiss. The motion to dismiss will be
presented to a motions division, and the motions division will
decide whether to order a response. Once the motion to dismiss is
briefed, the motions division will generally either (1) grant the
motion to dismiss and dismiss the appeal with or without prejudice;
(2) deny the motion to dismiss; or (3) defer ruling on the motion to
dismiss to a merits division. As discussed in the penultimate
paragraph of Part V below, if the motions division opts for the
second option — denying the motion — the merits division is free to
revisit the motions division’s denial of the motion.
10
illustrates the point, as the district court has been unwilling and
perhaps unable to act on the postjudgment interest and damages
issues while the appeal remains pending.
¶ 17 With that backdrop, we turn to counsel’s request that a
motions division determine for her whether the order she seeks to
appeal on her client’s behalf is final and appealable.
III. Appellate Jurisdiction
¶ 18 Appellate jurisdiction boils down to three basic concepts:
subject matter jurisdiction, timeliness, and finality.
¶ 19 Subject matter jurisdiction is determined by statute. § 13-4-
102(1)(b)-(h), C.R.S. 2019 (listing final judgments over which the
court of appeals does not have initial jurisdiction).
¶ 20 Timeliness is determined by the Colorado Appellate Rules.
C.A.R. 4(a) (a notice of appeal in a civil case must be filed within
forty-nine days of a final judgment).
¶ 21 And finality is determined by case law. See generally Harding
Glass Co. v. Jones, 640 P.2d 1123, 1125 n.2 (Colo. 1982) (“Absent
an applicable exception provided by rule or statute, an appeal lies
only from a final judgment ‘which ends the particular action in
which it is entered, leaving nothing further for the court
11
pronouncing it to do in order to completely determine the rights of
the parties involved in the proceeding.’” (quoting D.H. v. People, 192
Colo. 542, 544, 561 P.2d 5, 6 (1977))).
¶ 22 An appellate court must always be satisfied that it has
jurisdiction to hear an appeal. People v. S.X.G., 2012 CO 5, ¶ 9;
Allison, ¶ 22 (“We must determine independently our jurisdiction
over an appeal, nostra sponte if necessary.”). Further, a court has
no authority to expand its jurisdiction. People in Interest of L.R.B.,
2019 COA 85, ¶ 15; cf. Bowles v. Russell, 551 U.S. 205, 214 (2007)
(The United States Supreme Court “has no authority to create
equitable exceptions” to its jurisdictional requirements.).
IV. Finality
¶ 23 A cursory review of the relevant authority clearly establishes
that there is no final judgment for appellate review.
¶ 24 The court of appeals has initial jurisdiction over “final
judgments” of the district courts. § 13-4-102(1). As noted, a final
judgment is “one that 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
12
the proceedings.” People v. G.S., 2018 CO 31, ¶ 37 (quoting People
v. Guatney, 214 P.3d 1049, 1051 (Colo. 2009)).
[T]he same rules of finality apply in probate
cases as in other civil cases; thus, an order of
the probate court is final if it ends the
particular action in which it is entered and
leaves nothing further for the court
pronouncing it to do in order to completely
determine the rights of the parties as to that
proceeding.
Scott, 136 P.3d at 896.
¶ 25 The motion to determine jurisdiction concedes, consistent with
the assertion in the notice of appeal, that “[t]he issue of
prejudgment interest has not been decided.” It further states, again
consistent with the assertion in the notice of appeal, that “[c]ounsel
understands that there is also an issue of attorney fees
outstanding.” And indeed, the order attached to the notice of
appeal makes clear that attorney fees remain outstanding for the
surcharge claim.5 For both of these reasons (either of which would
be sufficient), there is no final judgment for appeal.
5 There is also an unresolved issue of attorney fees on the civil theft
claim. If those attorney fees are damages (and not costs), the lack
of resolution of that issue too would impair finality. But because
there are two clear barriers to finality, we do not need to decide
13
A. Prejudgment Interest
¶ 26 First, we have the unresolved issue of prejudgment interest.
“[B]ecause prejudgment interest is awarded as a consequence of the
losing party’s tortious action or breach of contract,” it is a
component of damages. Grand Cty. Custom Homebuilding, LLC v.
Bell, 148 P.3d 398, 401 (Colo. App. 2006). “Under the principle
that prejudgment interest is damages, the interest awarded must be
reduced to a sum certain before the judgment containing the award
becomes final for purposes of appeal.” Id. In fact, the motion to
determine jurisdiction cited Grand County Custom Homebuilding.
B. Surcharge
¶ 27 Second, we have unresolved attorney fees as a component of
surcharge damages.
If a court, after a hearing, determines that a
breach of fiduciary duty has occurred or an
exercise of power by a fiduciary has been
improper . . . the court may surcharge the
fiduciary for any damage or loss to the estate,
beneficiaries, or interested person. Such
damages may include compensatory damages,
interest, and attorney fees and costs.
whether attorney fees awardable under the civil theft statute are
damages or costs.
14
§ 15-10-504(2)(a), C.R.S. 2019 (emphasis added); see Hall v. Am.
Standard Ins. Co., 2012 COA 201, ¶ 15 (“Attorney fees are clearly
damages when they are part of the substance of a lawsuit, that is,
when the fees sought are the ‘legitimate consequences’ of the tort or
breach of contract sued upon . . . .”) (citation omitted); cf. Hall,
¶¶ 18-20 (attorney fees awardable under insurance bad faith
statute were damages because the statute includes fees as a remedy
along with other remedies for bad faith and such fees are a
“legitimate consequence of an insurer’s unreasonable conduct”);
Heller v. First Nat’l Bank of Denver, 657 P.2d 992, 999-1000 (Colo.
App. 1982) (attorney fees are awardable in a breach of trust action
to make the injured party whole; approved of in Buder v. Sartore,
774 P.2d 1383 (Colo. 1989)). The motion cited Hall as well.
¶ 28 “[A]n order establishing liability without determining damages
is not final or appealable.” Grand Cty. Custom Homebuilding, 148
P.3d at 400; accord, e.g., Harding Glass, 640 P.2d at 1126; Ball
Corp. v. Loran, 42 Colo. App. 501, 502-03, 596 P.2d 412, 413
(1979). “[I]f attorney fees and costs are a component of damages for
a statutory claim . . . , a judgment for damages on such a claim is
15
not appealable until the amount of the attorney fees and costs has
been set.” Hall, ¶ 14.
C. Scott
¶ 29 Counsel’s reliance on Scott to justify the filing of a premature
notice of appeal and accompanying motion to determine jurisdiction
is misplaced.
¶ 30 The issue in Scott was whether finality in the probate context
works differently than it does other cases. The supreme court held
that it does not. Rejecting decisions by divisions of this court
saying that “[t]he test for determining finality is whether the order
disposes of and is conclusive of the controverted claim for which
that part of the proceeding was brought,” In re Estate of Binford,
839 P.2d 508, 510 (Colo. App. 1992), the supreme court held “that
the same rules of finality apply in probate cases as in other civil
cases; thus, an order of the probate court is final if it ends the
particular action in which it is entered and leaves nothing further
for the court pronouncing it do so in order to completely determine
the rights of the parties as to that proceeding.” Scott, 136 P.3d at
896.
16
¶ 31 A “proceeding” in the probate context, the court said, is, if not
prescribed by the probate code, framed by a petition. Id. at 896-97.
All “[s]ubsequent pleadings which relate to that set of claims [set
forth in the petition] are part of the same proceeding.” Id. at 897;
see also In re Estate of Gadash, 2017 COA 54, ¶¶ 23-36 (further
elucidating Scott’s definition of a proceeding in a probate case).
¶ 32 In our view, Scott clarified the issue of finality in probate
cases; it did not further muddy the waters. But whatever a
“proceeding” means after Scott, this much is undeniable: an order
in a probate proceeding is not final and appealable unless it finally
disposes of the claims in the proceeding according to the well-
settled test of finality.
¶ 33 In this case, given that the issues of prejudgment interest and
attorney fees and costs as components of damages have yet to be
determined, the April 1, 2019, order cannot be considered final no
matter the meaning of a probate proceeding after Scott.6 In short,
6A straight-forward application of Scott in this case shows that the
proceeding comprises the claims in daughter’s petition against son.
17
nothing in Scott rendered the answer to the finality question in this
case less clear than it had been under prior case law.
V. Protective Notices of Appeal
¶ 34 Not all questions of finality are as clear as the ones presented
in this case. See, e.g., Heotis v. Colo. Dep’t of Educ., 2016 COA 6.
To be sure, there may be relatively rare occasions when it is
appropriate for counsel, truly uncertain of a case’s status even after
diligently investigating the issue of finality, to file a notice of appeal
to ensure the protection of a client’s appellate rights. See United
States v. Owen, 553 F.3d 161, 165 (2d Cir. 2009) (“[A] ‘protective’
notice of appeal is a useful litigation tool where, as here, the
timeliness of a subsequent appeal could be called into question.”);
Prod. Credit Ass’n v. Alamo Ranch Co., 951 F.2d 1260, 1991 WL
275641, at *2 (10th Cir. Dec. 24, 1991) (unpublished table decision)
(“Due to the confusion” about whether there was a final, appealable
order, “[d]efendant reasonably filed a protective notice of appeal.”);
see also Smith v. State, 559 S.W.3d 527, 534 (Tex. Crim. App. 2018)
(A premature notice of appeal may “relate forward” to a final
judgment in order to “protect an unskilled litigant who files a notice
of appeal from a decision that he reasonably but mistakenly
18
believes to be final.”); cf. Musick v. Woznicki, 136 P.3d 244, 251
(Colo. 2006) (holding that a trial court is not divested of jurisdiction
when a party files an appeal before the appealed ruling has been
certified under C.R.C.P. 54(b)).
¶ 35 But the situation presented to us is not exceptional. Nor, even
if it were, would it be appropriate for counsel to seek what amounts
to an advisory opinion on jurisdiction. Instead, counsel must
exercise her own professional judgment to determine, after
research, if a protective notice of appeal may be appropriate, while
noting any uncertainty in the “statement indicating the basis for the
appellate court’s jurisdiction” that C.A.R. 3(d)(2)(B) requires. An
appellee who believes that a notice of appeal is premature may
bring that issue to the court’s attention by promptly filing a motion
under C.A.R. 27, and, if necessary, this court may impose sanctions
against an attorney who files a protective notice of appeal
frivolously, groundlessly, or for improper purposes.
¶ 36 To put a finer point on it, counsel has the obligation to
determine in the first instance whether there is a final, appealable
order, and should make that determination in a diligent and
informed manner. That did not happen here. Rather, counsel
19
placed the onus of determining the finality of the judgment on this
court by filing a motion, together with a clearly premature notice of
appeal, asking us to “determine whether the challenged orders are
final and ripe for appeal.”
¶ 37 Understanding that we must always ensure that we have
jurisdiction to determine an appeal, Allison, ¶ 22, we are not
obligated to act as advocates or do the work of counsel, see, e.g.,
Sanchez v. Indus. Claim Appeals Office, 2017 COA 71, ¶ 62; Loomis
v. Seely, 677 P.2d 400, 402 (Colo. App. 1983). Indeed, as aptly put
by the Illinois Appellate Court, “[t]he appellate court ‘is not merely a
repository into which an appellant may dump the burden of
argument and research . . . .’” Ravenswood Disposal Servs. v. Ill.
Workers’ Comp. Comm’n, 133 N.E.3d 1261, 1270 (Ill. App. Ct. 2019)
(quoting U.S. Bank v. Lindsey, 920 N.E.2d 515, 535 (Ill. App. Ct.
2009)).
¶ 38 Moreover, because we are a divisional court and, therefore, the
merits division assigned the case can disagree with the motions
division’s conclusion that this court has jurisdiction, counsel seeks
what is potentially an advisory opinion on finality from a motions
division. Allison, ¶ 22 (disagreeing with motions division’s
20
determination of jurisdiction); Madison Capital Co. v. Star
Acquisition VIII, 214 P.3d 557, 559 (Colo. App. 2009) (disagreeing
with motions division’s order on finality); Hillen v. Colo.
Compensation Ins. Auth., 883 P.2d 586, 588 (Colo. App. 1994)
(dismissing appeal based on untimely filing of notice of appeal
despite motions division’s denial of motion to dismiss on that basis);
see also Stor-N-Lock Partners #15, LLC v. City of Thornton, 2018
COA 65, ¶ 38 (“[W]e must avoid issuing advisory opinions.”).7
¶ 39 We therefore explicitly disapprove of the practice of filing
motions such as the one we consider here.
7 Some decisions of the motions division are not advisory: decisions
that determine rights or resolve an issue in a way that is final —
that is, not subject to further review by a merits division — would
not be advisory. See, e.g., People in Interest of N.S., 2017 COA 8,
¶¶ 12-18 (motions division determines jurisdiction and resolves the
merits of the appeal); Romero v. City of Fountain, 307 P.3d 120,
121-22 (Colo. App. 2011) (motions division denies stay pending
appeal); People v. Hill, 296 P.3d 121, 123 (Colo. App. 2011) (motions
division denies motion to file an amended notice of appeal). Indeed,
this case is such a case. But a determination to allow a case to
proceed to the merits division notwithstanding a question of finality
presents no such finality because there the merits division is free to
reach a contrary conclusion and its decision, not that of the
motions division, controls.
21
VI. Conclusion
¶ 40 The appeal and cross-appeal are dismissed without prejudice.
22