Corporon v. Safeway Stores, Inc.

• Decision Date: 22 August 1985
• Docket Number: No. 84CA0457,84CA0457
• Citation: 708 P.2d 1385
• Parties: 38 Empl. Prac. Dec. P 35,711 Alan E. CORPORON, Plaintiff-Appellant, v. SAFEWAY STORES, INC., a Maryland corporation, and Max Garcia, Defendants-Appellees. . I
• Court: Colorado Court of Appeals

Page 1385

708 P.2d 1385

38 Empl. Prac. Dec. P 35,711

Alan E. CORPORON, Plaintiff-Appellant, v. SAFEWAY STORES, INC., a Maryland corporation, and Max Garcia, Defendants-Appellees.

No. 84CA0457.

Colorado Court of Appeals Div. I.

Aug. 22, 1985.

Rehearing Denied Oct. 10, 1985.

Carlyle V. Perry, William C. Hibbard, Steamboat Springs, for plaintiff-appellant.

Holland & Hart, Gregory A. Eurich, Kathryn E. Miller, Denver, for defendants-appellees.

PIERCE, Judge.

Plaintiff, Alan E. Corporon (Corporon), appeals from a trial court order dismissing three of his claims against defendants, Safeway Stores, Inc. (Safeway) and Max Garcia (Garcia). We affirm except as to one of the dismissals.

The record reveals that in August 1982, Garcia, an affirmative action representative for Safeway, conducted an investigation into allegations by other store employees that Corporon, in his capacity as the first assistant manager at a Safeway Store, was engaging in sexual harassment. As a result of Garcia's investigation, Corporon's employment with Safeway was terminated in September 1982.

Approximately a year later, Corporon filed an action against Safeway and Garcia, among other defendants. In his complaint, Corporon presents six "causes of action/claims for relief:" (1) defamation; (2) republication of the defamatory statements; (3) wrongful termination of employment; (4) interference with his implied contract of employment with Safeway; (5) outrageous conduct by defendants; and (6) punitive damages for the alleged publishing of the defamatory statements with reckless disregard for his feelings and his emotions.

The trial court dismissed Corporon's first claim pursuant to a motion for judgment on the pleadings based on a statute of limitations bar. Claims three and four were dismissed for failure to state a claim on which relief may be granted. Claims two, five, and six remain unlitigated. Corporon appeals the three dismissals.

Safeway and Garcia challenge Corporon's appeal on jurisdictional grounds. They maintain that the trial court's dismissals of only three of Corporon's six claims are not final judgments and are therefore not appealable under C.R.C.P. 54(b). We disagree.

I.

Defendants initially argue that the trial court had no jurisdiction to certify any issues for appeal under C.R.C.P. 54(b) because the certification was filed three days after filing of the notice of appeal. We decline to dismiss on that basis as it would result in unnecessary waste of judicial resources. See In Re Marriage of Ross, 670 P.2d 26 (Colo.App.1983).

We also do not agree with defendants that the dismissals lack finality because all of the claims remain pending with respect to other defendants. At the time of the dismissals, the trial court had proper jurisdiction based upon service of process over only these two defendants. Thus, the question of the claims pending against other defendants who may have been served since that time cannot properly be considered by us on this appeal. Furthermore, C.R.C.P. 54(b) expressly applies to judgments upon "multiple claims or involving multiple parties" (emphasis added).

C.R.C.P. 20(a) allows judgments "against one or more defendants according to their respective liabilities." Accordingly, as to Garcia and Safeway, we note that absent Corporon's specification of only joint liability, they are potentially jointly and severally liable. See Note, Federal Rule 54(b): The Multiple Claims Requirement, 43 Va.L.Rev. 229 (1957). To the extent this view may be inconsistent with Turchick & Kempter v. Hurd & Titan Construction Co., 674 P.2d 969 (Colo.App.1983), we decline to follow Turchick.

While the decision to certify an order or partial judgment under C.R.C.P. 54(b) is discretionary with the trial court, the court's decision regarding finality of its order on a claim for relief is reviewable by the appellate courts. Moore & Co. v. Triangle Construction & Development Co. 44 Colo.App. 499, 619 P.2d 80 (1980); see Harding Glass Co. v. Jones, 640 P.2d 1123 (Colo.1982).

Before an appeal can be brought, all claims for relief in a case must be resolved by final judgment unless C.R.C.P. 54(b) or another rule or statutory section is applicable. Alexander v. City of Colorado Springs, 655 P.2d 851 (Colo.App.1982). By its own terms, C.R.C.P. 54(b) applies only to "multiple claims." Thus, a complaint asserting only a single legal right states only a single claim and is therefore not divisible for purposes of appeal. Harding Glass Co. v. Jones, supra. The crux of the issue before us is whether Corporon's complaint presents multiple claims or whether it states only a single claim with multiple grounds in support.

The specific question of what claims present separate and certifiable claims for relief has not been completely addressed in Colorado. See Harding Glass Co. v. Jones, supra, (n. 5). We have rulings which clarify the application of the rule in limited fact situations. For example, trial court determinations of liability only have been held not to constitute final resolution of a claim. Ball Corp. v. Loran, 42 Colo.App. 501, 596 P.2d 412 (1979). Also, adjudication of a damages claim without adjudication of the entire action has been held improperly certifiable. Public Service Co. v. Linnebur, 687 P.2d 506 (Colo.App.1984) (certiorari granted August 20, 1984); see Harding Glass Co. v. Jones, supra. However, a quiet title claim is separable from slander and defamation claims, and therefore, properly certifiable under C.R.C.P. 54(b). Sisneros v. First National Bank, 689 P.2d 1178 (Colo.App.1984). Similarly, a forcible entry and detainer action has been held to be a separate claim from the claim of damages and possession and, therefore, appealable under proper certification. Sun Valley Development Co. v. Paradise Valley Country Club, 663 P.2d 628 (Colo.App.1983). We do not, however, have a comprehensive rule which covers the fact situation before us and several others.

The rulings of the federal courts are in complete disarray in their interpretation of Fed.R.Civ.P. 54(b). See Messenger v. Main, 697 P.2d 420 (Colo.App.1985); RePass v. Vreeland, 357 F.2d 801 (3d Cir.1966); see generally 10 C. Wright, A. Miller & M. Kane, Federal Practice & Procedure § 2657 (1983). At one extreme is the rule that a separate claim for purposes of Fed.R.Civ.P. 54(b) need not be entirely distinct from all the other claims in the action and need not arise from a different occurrence or transaction. Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 76 S.Ct. 895, 100 L.Ed. 1297 (1956); Cold Metal Process Co. v. United Engineering & Foundary Co., 351 U.S. 445, 76 S.Ct. 904, 100 L.Ed. 1311 (1956). At the other extreme, some federal courts have stated that variations in legal theory only will not be treated as separate claims. Allegheny County Sanitary Authority v. United States Environmental Protection Agency, 732 F.2d 1167 (3d Cir.1984); Rabekoff v. Lazere & Co., 323 F.2d 865 (2d Cir.1963).

Relying, in part, on federal interpretations of Fed.R.Civ.P. 54(b), we adopt a general rule which bridges both ends of the spectrum. It is an amalgamation of definitions adopted by the United States Court of Appeals for the Second Circuit. A "claim" is the aggregate of operative facts which give rise to a right enforceable in the courts, and the ultimate determination of multiplicity of claims rests on whether the underlying factual bases for recovery state a number of different claims which could have been separately enforced. See Backus Plywood Corp. v. Commercial Decal, Inc., 317 F.2d 339 (2d Cir.1963); Rieser v. Baltimore & Ohio R.R. Co., 224 F.2d 198 (2d Cir.1955).

There is, however, no definitive test for determining when claims are separately enforceable so as to be appealable under C.R.C.P. 54(b), or when the complaint, though purporting to present multiple claims, in fact presents only one claim for relief.

Some courts have adopted a test which looks solely toward judicial economy. Campbell v. Westmoreland Farm, Inc. 403 F.2d 939 (2d Cir.1968); see Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980). Such a test, however, contributes little to making the issue of multiple claims clearer, nor does it lend any guidance to the practitioner because each case is determined more or less on an ad hoc basis.

We, therefore, adopt a more pragmatic test which follows the general rule expressed above: Claims for relief are "multiple claims" for purposes of C.R.C.P. 54(b) when a claimant pleads claims for which his possible recoveries are more than one and when a judgment rendered on one of his claims would not bar a judgment on his other claim(s). See Note, Federal Rule 54(b): The Multiple Claims Requirement, 43 Va.L.Rev. 229 (1957).

The operation of this test may be illustrated by consideration of a recent case of this court, Messenger v. Main, supra. There, the buyers requested both rescission of the contract and damages. This court dismissed their appeal of a trial court order requiring them to make an election, for failure to state multiple claims under C.R.C.P. 54(b). The buyers in Messenger did not have more than one possible recovery since they could either recover damages or receive rescission; a judgment on one naturally precluded a judgment on the other. Thus, unlike the case before us, multiple claims for purposes of C.R.C.P. 54(b) were not stated in Messenger, supra.

As applied here, this test indicates multiple claims are present because a judgment on any one of Corporon's claims does not bar a judgment on any one or all of the other claims. (The only exception here is that an award of exemplary damages is not a claim for relief which, under any test, could be properly certified as final under C.R.C.P. 54(b); Harding Glass, supra.)

Here, an adjudication of Corporon's defamation claim would not bar him from receiving a verdict on the republication claim since each defamatory statement upon a...