Wilson v. Kennedy
| Decision Date | 13 August 2020 |
| Docket Number | Court of Appeals No. 20CA0041 |
| Court | Colorado Court of Appeals |
| Parties | 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. |
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.
¶ 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 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.
¶ 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) ().
¶ 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, ––– P.3d –––– (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).
¶ 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, 416 P.3d 905 (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, 461 P.3d 606 ; 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, 434 P.3d 1193.1
¶ 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 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, ––– P.3d –––– (); Avicanna Inc. v. Mewhinney , 2019 COA 129, ¶ 1 n.1, ––– P.3d –––– ().
¶ 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) ().
¶ 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. 1998).2 And, when confronted with the precise circumstance presented in ...
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