Opinion
No. 76-237
Decided January 6, 1977.
In action challenging grant of liquor license, trial court upheld the issuance of the license, and plaintiff appealed.
Appeal Dismissed Without Prejudice
1. APPEAL AND ERROR — Absence of Final Judgment — Not Raised by Parties — Notice Taken — Appellate Court. Even though the absence of a final judgment was not raised by the parties to an appeal, the Court of Appeals is required to take notice thereof; accordingly, where there was no order dismissing or otherwise disposing of a claim against one of the parties to an appeal, nor any order entered in accordance with C.R.C.P. 54(b), there was no final judgment to support the appeal as required by the appellate rules.
2. INTOXICATING LIQUORS — Judgment — Not Address — Claim Against Director of Revenue — C.R.C.P. 54(b) Inapplicable — Appeal Dismissed — Without Prejudice. A judgment or decree is not final which determines the action as to less than all of the defendants, except as provided in C.R.C.P. 54(b); consequently, where a party alleged that the director of excise and licenses abused his discretion and acted arbitrarily and capriciously in the granting of a liquor license, and that the action of the director of revenue in denying plaintiff's application for a state hearing was unlawful, arbitrary, and capricious, and the district court affirmed the opinion of the director of excise and licenses but took no action with respect to the claim against the director of revenue, C.R.C.P. 54(b) was not applicable, and the appeal must be dismissed without prejudice.
Appeal from the District Court of the City and County of Denver, Honorable John Brooks, Jr., Judge.
Brenman, Sobol Baum, Martin Zerobnick, for plaintiff-appellant.
George J. Duckworth, for defendant-appellee Walter K. Miller.
No appearance for defendant-appellee George A. Canjar.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, Chris J. Eliopulos, Special Assistant Attorney General, for defendant-appellee Joseph Dolan.
Appellant Hait appeals the granting of a liquor license to Miller. Because there is no final judgment, we dismiss the appeal.
Hait instituted this action in the district court under C.R.C.P. 106(a)(4) alleging among other things that appellee Canjar abused his discretion and acted arbitrarily and capriciously in the granting of Miller's application for a liquor license, and that the action of appellee Dolan in denying Hait's application for a state hearing was unlawful, arbitrary, and capricious. Hait prayed that the defendants be enjoined from giving effect to the decision approving the application for a liquor license.
After argument, the district court issued the following order:
"IT IS ORDERED BY THE COURT that the Opinion of the Director of Excise and Licenses for the City and County of Denver, Colorado, be, and hereby is affirmed."
The record reveals no action being taken by the court with respect to the claim against appellee Dolan.
[1] Although the absence of a final judgment has not been raised by any of the parties, we are required to take notice thereof. Schtul v. Christ, 132 Colo. 293, 287 P.2d 661 (1955). There is no order dismissing or otherwise disposing the claim against the appellee Dolan, nor is there any order entered in accordance with C.R.C.P. 54(b). Thus, there is no final judgment to support this appeal as required by C.A.R. (1)(a).
[2] We do not engage in piecemeal review of a case, and "a judgment or decree is not final which determines the action as to less than all of the defendants, except as provided in Rule 54(b)," Berry v. Westknit Originals, Inc. 145 Colo. 48, 357 P.2d 652 (1960). We hold that C.R.C.P. 54(b) is not applicable to the instant case. See TransCentral v. McBreen, 31 Colo. App. 71, 497 P.2d 1033 (1972); cf. Moschetti v. Liquor Licensing Authority, 176 Colo. 281, 490 P.2d 299 (1971).
The appeal is dismissed without prejudice.
CHIEF JUDGE SILVERSTEIN and JUDGE RULAND concur.