Opinion
No. 74-102
Decided April 2, 1976. Rehearing denied May 13, 1976. Certiorari granted July 6, 1976.
Trial court entered C.R.C.P. 54(b) order and plaintiffs sought to appeal, but defendants moved to dismiss appeal.
Appeal Dismissed
1. APPEAL AND ERROR — Remand of Supreme Court — Not Reversal — Court of Appeals Rulings — No Appealable Order — Appeal Again Dismissed. Supreme Court's remand of litigation for opportunity of plaintiffs to apply for new C.R.C.P. 54(b) order did not operate to reverse Court of Appeals earlier ruling that dismissal of class action aspects of the case was not an appealable order and that "death knell" doctrine is not applicable in Colorado; hence, those rulings are again dispositive and mandate dismissal of the appeal.
Appeal from the District Court of the City and County of Denver, Honorable Henry E. Santo, Judge.
Levine, Pitler Westerfeld, P.C., Harry L. Hellerstein, Criswell Patterson, John A. Criswell, for plaintiffs-appellants.
Mosley, Wells Dean, James H. Mosely, for defendant-appellee Western Federal Savings Loan Association.
Balaban Lutz, John A. Lobus, for defendant-appellee Mile High Savings Loan Association.
Calkins, Kramer, Grimshaw Harring, Richard Harring, for defendant-appellee Empire Savings Loan Association.
Law, Nagel Clark, Robert L. Nagel, for defendant-appellee James B. Nutter Company.
Fairfield Woods, Howard Holme, for defendant-appellee Midland Federal Savings Loan Association.
Division II.
This action is before this court for a second time on a motion to dismiss the appeal. It was formerly dismissed, Levine v. Empire Savings Loan Ass'n, 34 Colo. App. 235, 527 P.2d 910, but subsequently remanded to the trial court pursuant to a decision of the Supreme Court, Levine v. Empire Savings Loan Ass'n, 189 Colo. 64, 536 P.2d 1134, as hereinafter delineated. We grant the motion to dismiss.
On behalf of themselves and others similarly situated, plaintiffs filed the present case as a class action to recover loan assumption fees paid to defendants. The trial court granted defendants' motion to dismiss plaintiffs' complaint insofar as it alleged a class action and also struck the class action allegations on the basis that plaintiffs had failed to comply with the requirements of C.R.C.P. 23. However, plaintiffs were granted leave to pursue their individual claim for refund of assumption fees. Plaintiffs then filed a notice of appeal, and thereafter obtained an order pursuant to C.R.C.P. 54(b) nunc pro tunc to the date of the original dismissal.
In our prior opinion we held that the trial court lacked jurisdiction to enter an order under C.R.C.P. 54(b) after notice of appeal was filed. As alternate grounds of dismissal we also held that: (1) The order of the trial court dismissing the class action aspects of plaintiffs' claim did not finally determine the rights of any party or of a particular claim; and (2) the "death knell" doctrine as adopted by some courts in other jurisdictions is not applicable in Colorado as an exception to the final judgment requirement of C.A.R. 1(a)(1). Levine v. Empire Savings Loan Ass'n, (Colo.App.) supra.
Certiorari was granted by our Supreme Court, and in a per curiam opinion, the Court affirmed the dismissal stating:
"The Court of Appeals dismissed petitioners' appeal on two grounds: (1) that the trial court had no jurisdiction to enter the 54(b) order after petitioners' notice of appeal had been filed; and (2) that there being no final judgment order under the provisions of Rule 54(b) the notice of appeal was void.
"The decision is affirmed.
"The cause is remanded to the Court of Appeals with directions to remand to the trial court for further proceedings including opportunity to apply for a new 54(b) order. If the court enters the 54(b) order, the appellate process would apply as in other cases."
Levine v. Empire Savings Loan Ass'n, (Colo.) supra.
Pursuant to that remand, the appeal was reinstated in this court and remanded to the trial court for the further proceedings. Following remand, the trial court again entered an order pursuant to C.R.C.P. 54(b), and plaintiffs have filed a second notice of appeal. In support of their motion to dismiss the appeal, defendants rely on our prior decision contending that an order striking or dismissing class action allegations of a complaint may not validly be certified as a final order pursuant to C.R.C.P. 54(b). Plaintiffs answer that by virtue of the language in the remand quoted above, the Supreme Court has reversed our prior decision, and that the trial court's second 54(b) order renders its previous order final and appealable. We do not agree.
[1] We construe the decision of the Supreme Court as being predicated on the sole issue of the jurisdiction of the trial court to enter a C.R.C.P. 54(b) order after notice of appeal was filed. Having ruled that there was no valid 54(b) order authorizing appeal, it is apparent that the Supreme Court determined that all other issues were moot at that time, and therefore were not considered.
We have reconsidered those issues and adhere to our determination that dismissal of the class action aspects of the case did not finally determine the rights or claims of any particular party, and that the "death knell" doctrine is not applicable in Colorado. Our reasons are set forth in our prior opinion. Levine v. Empire Savings Loan Ass'n, (Colo.App.) supra.
Appeal dismissed.
CHIEF JUDGE SILVERSTEIN and JUDGE ENOCH concur.