Allison v. Engel , 2017 Colo. App. LEXIS 392 ( 2017 )


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  • COLORADO COURT OF APPEALS                                       2017COA43
    Court of Appeals No. 15CA1886
    Yuma County District Court No. 12CV43
    Honorable Michael K. Singer, Judge
    Stephen L. Allison and Barry R. Allison,
    Plaintiffs-Appellants and Cross-Appellees,
    v.
    Frank Engel and Mary Engel,
    Defendants-Appellees and Cross-Appellants.
    APPEAL AND CROSS-APPEAL DISMISSED
    Division II
    Opinion by JUDGE J. JONES
    Dailey and Berger, JJ., concur
    Announced April 6, 2017
    Haynes and Boone, LLP, John D. Fognani, Robert P. Thibault, Denver,
    Colorado, for Plaintiffs-Appellants and Cross-Appellees
    The Halliburton Law Firm, L.L.C., Samantha L. Halliburton, Denver, Colorado,
    for Defendants-Appellees and Cross-Appellants
    ¶1    C.R.C.P. 54(b) allows a district court to enter a final judgment
    on one claim in a multiple claim case, thereby allowing an
    immediate appeal of that judgment, but only if certain requirements
    are met. One of those requirements is that there is “no just reason
    for delay.” To give due force to the strong policy against piecemeal
    appeals, a district court must apply this requirement (as well as the
    others) with caution, and only where doing so is justified by reasons
    that clearly outweigh the concerns animating that policy. We
    therefore hold that to satisfy the requirement of no just reason for
    delay, a district court must give reasons for certification showing
    that unless the judgment on the claim is certified as final, a party
    would experience some hardship or injustice through delay that
    could be alleviated only by an immediate appeal.
    ¶2    In this case, which pits neighboring landowners against each
    other, the district court certified a default judgment on one of
    several counterclaims — one for unjust enrichment — as final,
    purportedly to “avoid duplicative efforts” (presumably, multiple
    trials) and to get “a clear sense of direction” from the appellate court
    as to “the propriety of [the] . . . default judgment and related
    issues.” These reasons, considered individually or together, do not
    1
    show a danger of hardship or injustice to any party that could be
    alleviated only by allowing an immediate appeal. It follows that the
    district court abused its discretion in determining that there was no
    just reason for delay. It further follows that the district court
    improperly certified its default judgment on the unjust enrichment
    counterclaim as final, and therefore we lack jurisdiction over the
    appeal.
    I. Background
    ¶3     The history of this case is rather complicated, but bear with
    us.
    ¶4     The Allisons own parcels of property on either side of a parcel
    owned by the Engels. But the Allisons and Engels differ as to the
    precise boundaries of their neighboring parcels, and for a number
    of years they have had disagreements and run-ins primarily over a
    pair of water wells (one drilled in 1976 and the other drilled in
    1995) located on one of the Allisons’ parcels.
    ¶5     The Allisons filed a complaint against the Engels asserting two
    claims for trespass and one for a declaration of “the parties’
    respective rights, obligations, ownership, use and charges related
    to” the 1995 well. The trespass claims allege that the Engels built a
    2
    fence on the Allisons’ land without their permission, and that the
    Engels have trespassed on the Allisons’ other parcel, resulting in
    “destruction” of a portion of that parcel.
    ¶6    On July 25, 2013, the Engels filed both their answer to the
    complaint and counterclaims. They deny trespassing on either of
    the Allisons’ parcels because, they allege, they’ve obtained both
    disputed tracts by adverse possession. In response to the Allisons’
    declaratory judgment claim, the Engels allege that (1) the previous
    owner of the Allisons’ property granted them an easement to drill a
    water well, to install pipes delivering well water to their property,
    and for access to the well; (2) they drilled the well in 1976 and used
    it continually thereafter; (3) a replacement water well was drilled in
    1995; (4) they installed water lines from the replacement well to the
    first well to enable them to get water from the replacement well; (5)
    the Allisons allowed others to attach water lines to the Engels’ water
    lines; and (6) since 1976, they’ve paid all electric bills associated
    with use of the wells. They too ask for a declaration of the parties’
    rights and obligations relating to the water and the wells.
    ¶7    The Engels also assert several counterclaims. The first seeks
    a declaration quieting title of both disputed tracts. The second
    3
    alleges that the Allisons have been unjustly enriched by the Engels’
    payment of all electric bills associated with operation of the wells
    and of all costs to repair the wells. The third alleges intentional
    infliction of emotional distress resulting from confrontations
    between the parties. And the fourth asserts that Mr. Allison has
    created a “private nuisance” by interfering with the Engels’ use of
    and access to the wells and by trespassing on their property.
    ¶8    Rather than replying to the Engels’ counterclaims, the Allisons
    filed a motion for partial summary judgment on September 30,
    2013, the last day of an extension the court had previously granted
    the Allisons to answer or otherwise respond to the counterclaims.
    The motion sought summary judgment on only two of the Engels’
    allegations — that they have a “senior water right” in the 1995
    replacement well and that they have an easement for access to that
    well. The Allisons did not answer or otherwise respond to any other
    aspect of the Engels’ counterclaims.
    ¶9    One week later, the Engels filed a motion for default judgment
    on their counterclaims based on the Allisons’ failure to answer or
    otherwise respond except as in the motion for partial summary
    4
    judgment. By rule, the Allisons had until October 28, 2013, to
    respond to that motion. They didn’t meet that deadline.
    ¶ 10   Consequently, the district court, noting the Allisons’ failure to
    respond, granted the Engels’ motion for default judgment in part.
    The court entered default judgment in the Engels’ favor on all four
    of their counterclaims and awarded them damages of $32,114.05.1
    The court certified the default judgment as final under Rule 54(b),
    though no party had asked for such a certification.2
    ¶ 11   Later that same day, the Allisons filed their response to the
    motion for default judgment and a motion under C.R.C.P. 60 to set
    aside the default judgment. They asserted, incorrectly, that their
    response wasn’t due until October 29, and so the court shouldn’t
    have entered default judgment. Much procedural wrangling
    ensued.
    ¶ 12   As now relevant, the Engels responded to the Allisons’ Rule 60
    motion, arguing that the Allisons’ counsel had simply miscalculated
    the response date and that the Allisons had been obligated to
    answer the counterclaims because they had addressed only two
    1 The court denied the Engels’ request for an award of attorney fees.
    2 The court’s order said only that there was “no just reason for
    delay.”
    5
    “very narrow issues” relating to one of the counterclaims in their
    motion for partial summary judgment. Before filing a reply in
    support of their Rule 60 motion, the Allisons filed an answer to the
    counterclaims on November 7, 2013, which the Engels
    subsequently moved to strike. In their Rule 60 reply, the Allisons
    belatedly acknowledged that their counsel had miscalculated the
    due date for their response to the Engels’ motion for default
    judgment. Nonetheless, they argued that they weren’t required to
    answer or otherwise respond to the counterclaims because they had
    filed a dispositive motion — the aforementioned motion for partial
    summary judgment. The Engels moved to strike this new
    argument. In the midst of all this, the parties completed briefing on
    the Allisons’ motion for partial summary judgment.
    ¶ 13   On December 30, 2013, the court entered an order setting
    aside the default judgment in part. The court ruled that the
    Allisons hadn’t shown any excusable neglect for failing to timely
    answer the counterclaims. But because the motion for partial
    summary judgment could “fairly be read as contesting at least some
    of the underlying factual allegations concerning the water wells,”
    the court said it had erred in awarding damages on the Engels’
    6
    intentional infliction of emotional distress and nuisance
    counterclaims. The court left intact the remainder of the default
    judgment.
    ¶ 14   After the Allisons filed additional motions under Rules 59 and
    60 further attacking the default judgment, the court held a hearing
    on the Engels’ quiet title counterclaim. (Before the hearing, the
    court granted the Allisons’ motion for partial summary judgment
    only on the issue whether the Engels had a “senior water right.”)
    Because the court concluded that there was a factual dispute as to
    whether the Engels had adversely possessed the two tracts at issue,
    it set aside the default judgment on the quiet title counterclaim.
    ¶ 15   The Allisons appealed. The Engels cross-appealed. This court
    ordered the parties to show cause why the appeal should not be
    dismissed for lack of a final, appealable order. The Allisons
    responded that there had been a proper Rule 54(b) certification; the
    Engels asserted (as they had in their notice of cross-appeal) that
    there wasn’t a final, appealable order. A motions division of this
    court dismissed the appeal and cross-appeal.
    ¶ 16   Undeterred, the Allisons asked the district court for a new
    Rule 54(b) certification, arguing that the court’s rulings on the post-
    7
    default judgment motions had “clarifi[ed]” the “scope” of the default
    judgment. They also argued that allowing an immediate appeal
    would
     provide the court and the parties, “in the shortest time, a
    binding decision that would provide a definite appellate
    answer as to the surviving applicability of the default
    judgment, in whole or part,” thereby enabling the parties
    to focus on the claims and counterclaims to be tried and
    avoid the “distraction” of “unresolved appellate outcomes
    on key claims and issues”;
     be “judicially efficient because it would simply displace a
    later appeal of the default judgment as part of an appeal
    of an entire case”;
     somehow eliminate the prospect of a second trial that
    otherwise would have to occur in the event the default
    judgment were reversed in a later appeal; and
     increase the possibility of settlement by clearing up the
    “uncertainty about the ultimate outcome of the scope of
    the default judgment as to the [remaining]
    counterclaims.”
    8
    ¶ 17   The Engels opposed the motion. They argued that because the
    Allisons had not timely appealed from the first Rule 54(b)
    certification, they should not get a second bite at the appellate
    apple. They also argued that an immediate appeal would result
    merely in further unwarranted delay in resolving the case.
    ¶ 18   The court granted the Allisons’ request. It reasoned only that
    certification would “avoid duplicative efforts,” and that by allowing
    the court of appeals to address the propriety of the default
    judgment, “once trial is conducted concerning the merits, the
    parties and the court will have a clear sense of direction in terms of
    issues to be considered at that point in the case.”
    ¶ 19   Once again, the Allisons appealed and the Engels cross-
    appealed. And once again, a motions division of this court ordered
    the parties to show cause why the appeal shouldn’t be dismissed for
    lack of a final, appealable order. The Allisons responded, but the
    Engels (who had said in their notice of cross-appeal that the district
    court should not have again certified the default judgment as final)
    didn’t. The motions division dismissed the appeal and cross-appeal
    as to the Engels’ quiet title counterclaim for lack of finality, but it
    9
    said the appeal could proceed as to the default judgment on the
    unjust enrichment counterclaim.
    ¶ 20   The case was subsequently assigned to this division. After
    reading the parties’ appellate briefs and the record, we became
    concerned about whether the district court had properly certified
    the default judgment on the unjust enrichment counterclaim as
    final under Rule 54(b). So we ordered the parties to file
    supplemental briefs addressing whether the unjust enrichment
    counterclaim is a separate claim for purposes of Rule 54(b) and
    whether there is no just reason for delay of an appeal pertaining
    solely to that counterclaim.
    ¶ 21   We’ve considered the parties’ responses. Because we’re not
    persuaded that there is “no just reason for delay,” as that
    requirement is properly construed, we dismiss the appeal and
    cross-appeal.
    II. Applicable Law and Standard of Review
    ¶ 22   We must determine independently our jurisdiction over an
    appeal, nostra sponte if necessary. People v. S.X.G., 
    2012 CO 5
    , ¶
    9; Meridian Ranch Metro. Dist. v. Colo. Ground Water Comm’n, 
    240 P.3d 382
    , 385 (Colo. App. 2009). And we are not bound by a
    10
    motions division’s determinations of that issue. First Comp Ins. v.
    Indus. Claim Appeals Office, 
    252 P.3d 1221
    , 1222 n.1 (Colo. App.
    2011); FSDW, LLC v. First Nat’l Bank, 
    94 P.3d 1260
    , 1262 (Colo.
    App. 2004).
    ¶ 23   Generally speaking, the court of appeals has jurisdiction only
    over appeals from final judgments. § 13-4-102(1), C.R.S. 2016;
    C.A.R. 1(a); Harding Glass Co. v. Jones, 
    640 P.2d 1123
    , 1125 & n.2
    (Colo. 1982). Rule 54(b), however, provides an exception to this
    rule. Harding Glass, 640 P.2d at 1125, 1126. Thus, our
    jurisdiction over an appeal from an order the district court has
    certified as final under Rule 54(b) depends on the correctness of
    that certification. E. Cherry Creek Valley Water & Sanitation Dist. v.
    Greeley Irrigation Co., 2015 CO 30M, ¶ 12; Harding Glass, 640 P.2d
    at 1126.
    ¶ 24   A certification under Rule 54(b) is correct only if (1) the
    decision certified is a ruling on an entire claim for relief; (2) the
    decision is final in that it ultimately disposes of the individual
    claim; and (3) the district court determines expressly that there is
    no just reason for delay in entering a final judgment on the claim.
    E. Cherry Creek Valley Water & Sanitation Dist., ¶ 11; Lytle v. Kite,
    11
    
    728 P.2d 305
    , 308 (Colo. 1986). The party seeking certification has
    the burden to establish that those requirements are satisfied.
    Braswell Shipyards, Inc. v. Beazer E., Inc., 
    2 F.3d 1331
    , 1335 (4th
    Cir. 1993).
    ¶ 25   We review de novo the legal sufficiency of a district court’s
    Rule 54(b) certification. E. Cherry Creek Valley Water & Sanitation
    Dist., ¶ 12; Richmond Am. Homes of Colo., Inc. v. Steel Floors, LLC,
    
    187 P.3d 1199
    , 1203 (Colo. App. 2008). Similarly, we may “fully
    review[]” a district court’s determinations as to the first two
    requirements because such determinations are “not truly
    discretionary.” Harding Glass, 640 P.2d at 1125. But we look at
    the district court’s determination that there is no just reason for
    delay differently. Because the district court is “most likely to be
    familiar with the case and with any justifiable reasons for delay,”
    Sears, Roebuck & Co. v. Mackey, 
    351 U.S. 427
    , 437 (1956),3 we
    review a district court’s determination of no just reason for delay
    3 Because the federal rule and C.R.C.P. 54(b) are virtually identical,
    “case law interpreting the federal rule is persuasive in analysis of
    the Colorado rule.” Harding Glass Co. v. Jones, 
    640 P.2d 1123
    ,
    1125 n.3 (Colo. 1982); see also Warne v. Hall, 
    2016 CO 50
    , ¶¶ 15-
    17 (discussing the desirability of applying Colorado procedural rules
    in substantial conformity with their federal counterparts).
    12
    only for an abuse of discretion. Lytle, 728 P.2d at 308, 309; accord
    Curtiss-Wright Corp. v. Gen. Elec. Co., 
    446 U.S. 1
    , 10 (1980);
    Harding Glass, 640 P.2d at 1125. A district court abuses its
    discretion when its ruling is manifestly arbitrary, unreasonable, or
    unfair, or based on an erroneous view of the law. People v. Elmarr,
    
    2015 CO 53
    , ¶ 20.4
    III. Analysis
    A. Entire Claim for Relief
    ¶ 26   Determining whether a particular claim constitutes an entire
    claim for relief for Rule 54(b) purposes is not as easy as simply
    looking at the labels in a party’s pleading. A pleading asserting a
    single legal right states but one claim, even if the claimant seeks
    multiple remedies for the violation of that right. Harding Glass, 640
    P.2d at 1126. On the other hand, claims are separate “when more
    than one recovery is possible and when a judgment on one claim
    4 In Harding Glass, the court said that a court abuses its discretion
    in this context only if its decision was “clearly unreasonable.” 640
    P.2d at 1125 (quoting Curtiss-Wright Corp. v. Gen. Elec. Co., 
    446 U.S. 1
    , 10 (1980)). We don’t believe that in doing so the court
    intended to adopt a standard different from that ordinarily
    articulated. After all, manifestly erroneous and clearly erroneous
    would appear to be the same. See Carrillo v. People, 
    974 P.2d 478
    ,
    485 (Colo. 1999) (“abuse of discretion,” “clear abuse of discretion,”
    and “gross abuse of discretion” all mean the same).
    13
    would not bar a judgment on the other claims.” Richmond Am.
    Homes, 
    187 P.3d at 1203
    .
    ¶ 27   The parties in this case argue that, although there is some
    factual overlap in the proof of the unjust enrichment counterclaim
    and the other claims, the unjust enrichment counterclaim is an
    entire claim for relief because recovery on that claim does not
    depend on how any other claim is resolved. More specifically,
    resolving the unjust enrichment counterclaim does not depend on
    who owns the disputed tracts, whether the Engels are guilty of
    trespass, or whether Mr. Allison’s alleged behavior was tortious.
    ¶ 28   The problem with the parties’ argument, however, is that each
    has asserted declaratory judgment claims (which remain pending)
    asking the court to determine the parties’ respective rights in the
    wells, including who is responsible for costs associated with those
    wells. So it may be that the unjust enrichment counterclaim is
    essentially subsumed in the declaratory judgment claims, even
    though those claims seek different remedies. Cf. Gerardi v. Pelullo,
    
    16 F.3d 1363
    , 1370 (3d Cir. 1994) (expressing doubt that unjust
    enrichment claim was a separate claim for Fed. R. Civ. P. 54(b)
    14
    purposes because it was arguably a “lesser-included aspect[]” of
    other claims).
    ¶ 29   We needn’t decide this tricky issue, however, because we
    conclude that the third requirement for certification — that there is
    no just reason for delay — isn’t met in this case, as discussed
    below.
    B. Finality
    ¶ 30   Assuming the district court’s default judgment on the unjust
    enrichment counterclaim is a ruling on an entire claim, there is no
    question that the decision is final. The ruling determines both
    liability and damages. See Lytle, 728 P.2d at 309 (a ruling
    determining liability and damages that left nothing for the court to
    do but execute on the judgment was final); Harding Glass, 640 P.2d
    at 1127 (observing that where the issue of damages is reserved,
    there is no final judgment).
    C. No Just Reason for Delay
    ¶ 31   “In deciding whether there are just reasons to delay an appeal
    of an individual final judgment, a district court must take into
    account the interests of judicial administration, as well as the
    equities involved.” Lytle, 728 P.2d at 309; accord Curtiss-Wright,
    15
    
    446 U.S. at 8
    .5 Consideration of the needs of sound judicial
    administration is necessary to further the historic policy against
    piecemeal appeals, a policy Rule 54(b) was intended to preserve.
    Curtiss-Wright, 
    446 U.S. at 8
    ; Sears, Roebuck & Co., 
    351 U.S. at 438
    ; see Harding Glass, 640 P.2d at 1127; see also Linnebur v. Pub.
    Serv. Co. of Colo., 
    716 P.2d 1120
    , 1123 (Colo. 1986) (“To avoid
    piecemeal review, final judgments must meet the requirements of
    C.R.C.P. 54(b).”); 15A Charles Alan Wright, Arthur R. Miller &
    Edward H. Cooper, Federal Practice and Procedure § 3907 (2d ed.
    1992) (discussing in depth the purposes of the final judgment rule).
    ¶ 32   Nonetheless, Rule 54(b) allows for an early appeal “to avoid the
    possible injustice of a delay in entering judgment on a distinctly
    separate claim” that can result from modern rules of pleading
    allowing liberal joinder of claims and parties. 10 Charles Alan
    Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and
    Procedure § 2654, at 30 (4th ed. 2014); accord 10 James Wm. Moore
    et al., Moore’s Federal Practice § 54.21[1] (3d ed. 2015). But given
    5 We acknowledge that our task is “not to reweigh the equities or
    reassess the facts but to make sure that the conclusions derived
    from those weighings and assessments are juridically sound and
    supported by the record.” Curtiss-Wright Corp., 
    446 U.S. at 10
    .
    16
    the strong policy against piecemeal appeals, district courts
    shouldn’t make Rule 54(b) certifications routinely, even in
    multiclaim or multiparty cases. Nor should courts certify rulings as
    an accommodation to counsel. Braswell Shipyards, 2 F.3d at 1335;
    Burlington N. R.R. Co. v. Bair, 
    754 F.2d 799
    , 800 (8th Cir. 1985) (per
    curiam); see Curtiss-Wright, 
    446 U.S. at 10
     (“Plainly, sound judicial
    administration does not require that Rule 54(b) requests be granted
    routinely.”). District courts should instead be reluctant to enter
    Rule 54(b) orders since the purpose of the rule is limited to avoiding
    undue hardship resulting from a delay in allowing an appeal. Okla.
    Tpk. Auth. v. Bruner, 
    259 F.3d 1236
    , 1242 (10th Cir. 2001); see also
    Gerardi, 
    16 F.3d at 1373
     (“[A] district court should be conservative
    in invoking Rule 54(b) . . . .”); Morrison-Knudsen Co. v. Archer, 
    655 F.2d 962
    , 965 (9th Cir. 1981) (Certification “must be reserved for
    the unusual case in which the costs and risks of multiplying the
    number of proceedings and of overcrowding the appellate docket are
    outbalanced by pressing needs of the litigants for an early and
    separate judgment as to some claims or parties.”).
    ¶ 33   And so, in recognition of the need to limit certifications
    appropriately, the federal courts, in applying Fed. R. Civ. P. 54(b),
    17
    have held that to satisfy the requirement that there is no just
    reason for delay, a party seeking certification (or a court certifying a
    ruling on its own motion) must show that a party will suffer some
    hardship or injustice that can be alleviated only by an immediate
    appeal. E.g., Huggins v. FedEx Ground Package Sys., Inc., 
    566 F.3d 771
    , 774 (8th Cir. 2009); Braswell, 2 F.3d at 1335; Hogan v. Consol.
    Rail Corp., 
    961 F.2d 1021
    , 1025 (2d Cir. 1992); see also 10 Moore’s
    Federal Practice § 54.23[1][b], at 54-64; 10 Federal Practice and
    Procedure § 2659, at 104-05. Given that the Colorado judicial
    system shares the federal courts’ disdain for piecemeal appeals,
    that standard also should govern certifications under Colorado’s
    Rule 54(b).
    ¶ 34   We observe that although Colorado case law addressing the
    meaning of no just reason for delay is scant, what little there is
    appears to adhere substantially to the narrow approach taken by
    the federal courts. In Lytle, for example, the supreme court held
    that the district court didn’t abuse its discretion in finding no just
    reason for delay where the claims against one party that were
    subject to the judgment certified weren’t interrelated with the
    claims against the other party (in the sense that either party was a
    18
    necessary party to an action against the other) and nine years had
    elapsed between the injury giving rise to the claims and the entry of
    the certified judgment. 728 P.2d at 309.
    ¶ 35   In Messler v. Phillips, 
    867 P.2d 128
     (Colo. App. 1993), the
    division found no abuse of discretion in certifying all of the
    plaintiff’s claims against the defendant, despite pending cross-
    claims by the defendant against a third party, because the plaintiff
    was an elderly woman and her claims had been pending for several
    years. 
    Id. at 132
    .
    ¶ 36   And in Georgian Health Center, Inc. v. Colonial Painting, Inc.,
    
    738 P.2d 809
     (Colo. App. 1987), the division found no abuse of
    discretion where there had been an earlier appeal of the dispute
    (involving a lessor and lessee), there was no dispute as to the
    amount that had been wrongfully paid to the lessor, and the lessor
    had wrongfully held the lessee’s money for many years. 
    Id. at 811
    .
    ¶ 37   We turn, then, to the facts of this case and ask whether the
    court’s reasons for finding no just reason for delay show that the
    Allisons will suffer some hardship or injustice unless they are able
    to appeal now the default judgment on the Engels’ unjust
    enrichment counterclaim. They don’t.
    19
    ¶ 38   As discussed, the district court gave two reasons for
    concluding that there was no just reason for delay: (1) “avoid[ing]
    duplicative efforts”6 and (2) obtaining “a clear sense of direction in
    terms of the issues to be considered” at trial.
    ¶ 39   We construe the first reason as a concern that there would
    have to be a trial on the unjust enrichment counterclaim if the
    default judgment is reversed on appeal; an appellate decision on
    that judgment now would enable all claims to be tried in a single
    trial. In other words, if there is no appeal of that judgment now,
    but only an appeal after all claims have been resolved, and the
    appellate court reverses the default judgment while affirming the
    judgments on the other claims, there will have to be a later trial on
    the unjust enrichment counterclaim alone.
    ¶ 40   But this reason is plainly insufficient to justify certification
    because the same could be said about any case involving multiple
    claims or parties as to which a dispositive ruling is entered on one
    claim, or as to one party, before trial. Huggins, 
    566 F.3d at
    774
    6 It isn’t clear whether the court referred to avoiding duplicative
    efforts as a reason justifying immediate appeal. But we’ll assume
    that it did. It also isn’t clear if the court intended to give two
    reasons or merely one. We’ll assume that it intended two reasons.
    20
    (holding that the potential for multiple trials does not support
    certification); Hogan, 
    961 F.2d at 1025-26
     (same). As the Hogan
    court observed, the appropriate course for a district court to take if
    it wants to minimize the likelihood of a retrial is to take care in
    granting judgment before trial, “not to ask for an interim opinion
    from the court of appeals, thereby forcing successive appellate
    panels to review the case.” 
    961 F.2d at 1026
    .
    ¶ 41   We construe the second reason as a desire for guidance from
    this court on an issue as to which the district court is perhaps
    unsure. This reason appears to be closely related to the first in that
    the “direction” the district court seeks would enable it to best
    determine what claims need to be tried.
    ¶ 42   This reason is also plainly insufficient to justify certification.
    It’s simply not a proper function of Rule 54(b) certification to
    assuage a district court’s doubts about its decision or to provide
    “guidance” in the resolution of claims. Taco John’s of Huron, Inc. v.
    Bix Produce Co., 
    569 F.3d 401
    , 402 (8th Cir. 2009) (“We do not
    doubt that our resolution of this appeal would provide guidance to
    the parties and the court below. But the possibility that an early
    intervention might be helpful does not amount to the kind of
    21
    justification for exercising jurisdiction that our relevant cases
    require.”); see Hogan, 
    961 F.2d at 1025-26
     (district court’s desire
    for appellate ruling on whether it had correctly assessed the state of
    the evidence did not justify certification); Harding Glass, 640 P.2d
    at 1127 (the appellate court is not “a type of ‘advisory board’”
    (quoting Cole v. Peterson Realty, Inc., 
    432 A.2d 752
    , 756 (Me.
    1981))).
    ¶ 43   The Allisons nonetheless assert that there is no just reason for
    delay because “precluding [them] from having their day in court on
    the Engels’ unjust enrichment counterclaim is simply inequitable
    under the circumstances here.” But the “inequitable
    circumstances” they assert are limited to the purported error in
    entering default judgment. They do not cite any authority for the
    proposition that the merits of the certified decision matter in
    determining whether there is no just reason for delay. Nor have we
    found any.
    ¶ 44   For their part, the Engels (who previously asserted that the
    certification was improper), responded to our order to show cause
    by urging us to consider the appeal and cross-appeal because
    22
    briefing is complete.7 But our jurisdiction depends on the
    correctness of the certification, and the stage of the proceeding at
    which jurisdiction is in question is irrelevant to that issue. We
    simply cannot exercise jurisdiction merely as a matter of
    convenience.
    ¶ 45   In sum, the district court didn’t give legally sufficient reasons
    for finding that there is no just reason for delay. The court’s
    reasons, considered singularly or together, don’t show that any
    party will suffer hardship or injustice unless an immediate appeal
    of the default judgment on the single counterclaim is allowed. We
    therefore conclude that the district court abused its discretion, and
    that we lack jurisdiction.
    IV. Conclusion
    ¶ 46   The appeal and cross-appeal are dismissed.
    JUDGE DAILEY and JUDGE BERGER concur.
    7 At oral argument, however, the Engels’ counsel took the position
    that the requirements for certification weren’t satisfied.
    23
    

Document Info

Docket Number: Court of Appeals 15CA1886

Citation Numbers: 2017 COA 43, 395 P.3d 1217, 2017 Colo. App. LEXIS 392, 2017 WL 1279748

Judges: Jones, Dailey, Berger

Filed Date: 4/6/2017

Precedential Status: Precedential

Modified Date: 11/13/2024

Authorities (17)

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Taco John's of Huron, Inc. v. BIX PRODUCE CO., LLC , 569 F.3d 401 ( 2009 )

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