Wilson v. Advisorylaw LLC

2020 COA 122. No. 20CA0041. Final Appealable Order—Civil Procedure—Voluntary Dismissal—Jurisdiction.

August 13, 2020

Plaintiffs brought this civil action alleging that defendants published false and derogatory statements about them on a public website and in two news articles. Plaintiffs asserted 10 claims, some against all defendants and others against only some of them. Defendants filed a partial motion to dismiss under CRCP 12(b)(5). The trial court granted the motion, dismissing with prejudice five of plaintiffs’ claims in their entirety and another claim in part. Plaintiffs voluntarily dismissed the remaining claims without prejudice under CRCP 41(a)(1)(A), and the trial court closed its case.

Plaintiffs filed a notice of appeal seeking review of the trial court’s ruling on the partial motion to dismiss. Defendants moved to dismiss the appeal, arguing that plaintiffs’ dismissal without prejudice didn’t create the required finality to give the Court of Appeals jurisdiction. A final judgment is a jurisdictional prerequisite to review on appeal, and an order dismissing claims without prejudice generally doesn’t constitute a final order. There are exceptions to this general rule where, for example, a case cannot be resurrected because the claims would be time barred. But nothing precludes plaintiffs here from reasserting the same claims they dismissed without prejudice. And no Colorado authority supports application of an exception when some claims are dismissed with prejudice while others are voluntarily dismissed without prejudice under CRCP 41(a)(1). Accordingly, the action is not final for purposes of appeal, and the Court currently lacks jurisdiction. Further, plaintiffs had other options for taking an appeal that they didn’t pursue before this appeal.

The Court deferred ruling on defendants’ motion to dismiss for 35 days to allow plaintiffs to correct the jurisdictional defect. Plaintiffs may either obtain a CRCP 54(b) certification, if appropriate, or dismiss with prejudice the unadjudicated claims. If plaintiffs do not obtain such a certification or dismissal within that time period, the appeal will be dismissed without prejudice for lack of appellate jurisdiction.

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