Civil Interlocutory Appeals in Colorado State Courts

JurisdictionColorado,United States
CitationVol. 49 No. 9 Pg. 38
Publication year2020
49 Colo.Law. 38
Civil Interlocutory Appeals in Colorado State Courts
Vol. 49, No. 9 [Page 38]
Colorado Lawyer
October, 2020



Colorado litigants need not always await a final judgment before taking an appeal. This article catalogues the various types of interlocutory appeals available to litigants in Colorado state appellate courts.

Parties in civil cases sometimes may wish to appeal from an order that is not a final judgment and cannot be made one under Colorado Rule of Civil Procedure (CRCP) 54(b), either because it does not dispose of an entire claim for relief or because a party cannot show there is "no just reason for delay."[1] This article first reviews the legal bases for interlocutory appellate jurisdiction in the Colorado Supreme Court and Colorado Court of Appeals. It then discusses types of interlocutory orders that may be appealed as a matter of right. It concludes with discretionary review options available in the Colorado Supreme Court and Court of Appeals.

The Legal Framework for Jurisdiction to Review Interlocutory Orders

The Colorado Constitution established the Colorado Supreme Court, which has both original and appellate jurisdiction.[2] Article VI, § 2(2) provides:

Appellate review by the supreme court of every final judgment... shall be allowed, and the supreme court shall have such other appellate review as may be provided by law.[3]

The Supreme Courthasheld that this provision allows the General Assembly to expand the Court's jurisdiction, but jurisdiction may not be expanded by rule of court.[4] Hence, "[s]tatutes pertaining to the creation of the appellate remedies take precedence over judicial rules of procedure," and the Supreme Court "cannot adopt a rule which changes jurisdiction of a court contrary to a provision of a statute."[5]

Consistent with article VI, §2(2), the General Assembly authorized the Colorado Supreme Court to adopt rules of civil procedure.[6] So, to the extent the CRCP or Colorado Appellate Rules (CAR) authorize appellate review of an interlocutory order, review is proper.[7] Further, even if the Supreme Court's appellate jurisdiction might not extend to review of a particular order, review might be available in the Court's exercise of its original jurisdiction under CAR 21.

In contrast, the Colorado Court of Appeals is not a constitutional court; it was created by statute, and its jurisdiction is likewise defined by statute.[8] Under CRS § 13-4-102, the Court of Appeals has "initial jurisdiction over appeals from final judgments of... the district courts" (with specified exceptions) and final actions or orders of specified state agencies. Further, in adopting the CAR, the Colorado Supreme Court authorized the Court of Appeals to review any case where an interlocutory appeal can be taken.[9] However, under CRS§ 13-4-110(1)(a), if a party asserts that a matter is not within the Court of Appeals' jurisdiction, the question is referred to the Supreme Court, which "shall decide the question of jurisdiction in a summary manner, and its determination shall be conclusive."[10]

Finally, a party is not required to file an interlocutory appeal, even where a statute or rule permits such an appeal, whether as of right or as a matter of the reviewing court's discretion. Rather, appeal of an interlocutory order is only permissive, so even if no immediate appeal is taken, the claim of error may be reviewed in a later appeal from a final judgment.[11]

Interlocutory Orders Appealable as a Matter of Right

There are multiple bases for interlocutory review as a matter of right, including the following.

CAR 1 Interlocutory Orders

CAR 1 describes three types of interlocutory orders from which an "appeal to the appellate court may be taken." This rule does not designate to which appellate court a particular appeal must go.

Water court cases. Under CAR 1(a)(2), an appeal will lie from a "judgment or decree" of the water court and from that court's "order refusing, granting, modifying, canceling, affirming, or continuing in whole or in part a conditional water right, or a determination that reasonable diligence or progress has or has not been shown in an enterprise granted a conditional water right[.]" These appeals go directly to the Supreme Court.[12]

Orders granting or denying a "temporary injunction." CAR 1(a)(3) permits an interlocutory appeal from " [a]n order granting or denying a temporary injunction." Note that CRCP 65, which governs the issuance of injunctions by district courts, does not use the term "temporary injunction." Rule 65 refers to a "temporary restraining order" (TRO) or a "preliminary injunction." CAR 1 (a)(3), however, has been interpreted to apply only to preliminary injunctions, not TROs.[13] For this purpose, a preliminary injunction is an order issued after notice and hearing, and without the 10-day temporal limitation for TROs, irrespective of the trial court's description of its order.[14]

Orders concerning appointment or discharge of receivers. CAR 1(a)(4) allows an interlocutory appeal from "[a]n order appointing or denying the appointment of, or sustaining or overruling a motion to discharge, a receiver." This rule is straightforward and means what it says.[15]

Other Appealable Interlocutory Orders

In addition to those orders appealable under CAR 1, a number of other types of orders are subject to interlocutory appeal under various statutes and rules, as well as judicial precedent.

Orders regarding immunity. Generally speaking, two types of immunity may be the subject of a pretrial order: immunity granted to public entities and public employees by the Colorado Governmental Immunity Act (CGIA),[16] and immunity possessed by public employees under 42 U.S.C. § 1983.[17] Because these types of immunity are, or may be, treated differently for appeal purposes, they must be considered separately.

CGIA Immunity. The CGIA grants sovereign immunity to government entities, with limited exceptions. It provides that "sovereign immunity shall be a bar to any action against a public entity for injury which lies in tort or could lie in tort regardless of whether that may be the type of action or the form of relief chosen by a claimant."[18] The CGIA also immunizes public employees against claims for injuries sustained from acts or omissions alleged to have occurred during the performance of their duties and within the scope of their employment, "unless the act or omission causing such injury was willful and wanton."[19] The CGIA thus authorizes suits against a public employee in two instances: where the employee's act or omission was "willful or wanton," and where the entity's immunity has been waived under CRS § 24-10-106(1).[20]

The denial of a motion asserting sovereign immunity of a public entity or public employee is subject to interlocutory appeal.[21] CRS § 24-10-108 provides:

If a public entity raises the issue of sovereign immunity prior to or after commencement of discovery, the court shall suspend discovery, except any discovery necessary to decide the issue of sovereign immunity and shall decide such issue on motion. The court's decision on such motion shall be a. final judgment and shall be subject to interlocutory appeal.[22]

The CGIA sets forth substantively identical provisions with respect to sovereign immunity defenses asserted by public employees,[23]and as explained below, it is now clear that they too are entitled to interlocutory appeal of orders rejecting their immunity defenses.

The first significant case decided under this statute was Trinity Broadcasting of Denver, Inc. v. City of Westminster.[24] There, the Supreme Court held that, because the CGIA makes the Court's subject matter jurisdiction dependent on there beingno sovereign immunity for a public entity, a trial court should decide the issue on a CRCP 12(b)(1) motion—not on a summary judgment motion—and should take evidence on the issue if necessary.[25] Apretrial order deciding the issue is appealable under CRS § 24-10-108.[26] The trial court is not required to certify the order under CRCP 54(b) as a condition precedent to an immediate appeal.[27]

Early Colorado decisions held that a public employee's claim to qualified immunity does not go to the court's jurisdiction, but instead is an affirmative defense.[28] As such, these early decisions held that an order denying an employee's qualified immunity claim was not subject to interlocutory review.[29] In 2016, however, the Colorado Supreme Court decided that the CGIA does provide for interlocutory review of a trial court's ruling regarding a public employee's right to qualified immunity.[30] The Court recognized that while CRS § 24-10-118(2.5) authorizes an interlocutory appeal only on the issue of "sovereign immunity" (not "qualified immunity"), the "immunity" to which public employees are entitled under CRS § 24-10-1 l8(2)(a) must be included within the procedural safeguards of CRS § 24-10-118(2.5).[31]

Moreover, because the CGIA governs claims that could have been brought in tort, an order denying a public entity's motion to dismiss a claim sounding in contract (or some other non-tort theory) for lack of subject matter jurisdiction may also be immethately appealable.[32] In addition, an order deciding the sufficiency of notice required by the CGIA is immethately appealable.[33] And if a trial court does not stay discovery but merely reserves ruling on a motion to dismiss under the CGIA, it might be equivalent to denial of the motion, in which case the "technical" requirement of CRCP 58(a) for a dated, written order signed by the judge will be waived.[34]

Finally, like all bases for interlocutory appeals, the statute permits but does not require an immediate appeal. So if a party chooses not to take an interlocutory appeal, it may nevertheless present the CGIA issue after the entry...

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