     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                April 16, 2020

                                2020COA70

No. 19CA1458, Interest of Chavez — Appeals — Final
Appealable Order — Colorado Rules of Appellate Procedure —
Motions

     A division of the court of appeals holds that a party filing a

notice of appeal should not also file a motion asking the court to

determine whether the appeal is premature.
COLORADO COURT OF APPEALS                                       2020COA70


Court of Appeals No. 19CA1458
Douglas County District Court No. 18PR30128
Honorable Patricia D. Herron, Judge


In the Interest of

Marie M. Chavez

and

Gilbert M. Chavez,

Appellant and Cross-Appellee,

v.

Teresa Chavez, Conservator,

Appellee and Cross-Appellant.


                     APPEAL AND CROSS-APPEAL DISMISSED

                                   Division A
                        J. Jones, Welling, and Grove, JJ.
                                  PER CURIAM

                           Announced April 16, 2020


Gill & Ledbetter, LLP, Anne Whalen Gill, Castle Rock, Colorado, for Appellant
and Cross-Appellee

Wade Ash Woods Hill & Farley, P.C., Jody J. Pilmer, Denver, Colorado, for
Appellee and Cross-Appellant
¶1    In this probate matter, counsel for appellant Gilbert M. Chavez

 (son) filed a notice of appeal on behalf of son with a “motion to

 determine jurisdiction.” We conclude that the appeal is clearly

 premature and take this opportunity to clarify the court’s procedure

 for reviewing motions and screening appeals for jurisdictional

 defects. We also disapprove of counsel’s use of a “motion to

 determine jurisdiction,” as it improperly shifts counsel’s obligation

 to ascertain finality to this court while seeking what ultimately is an

 advisory opinion. Therefore, we dismiss the appeal and cross-

 appeal without prejudice for lack of a final order.

                     I.    Procedural Background

¶2    The underlying probate matter began in March 2018 when

 Teresa Chavez (daughter) filed a petition for appointment of a

 conservator for Marie M. Chavez (mother). In the petition, daughter

 alleged that son had, without authority, quitclaimed mother’s home

 to himself and his wife for no consideration. She also alleged that

 son had added himself to multiple bank accounts owned by mother

 and then transferred large sums from those accounts to bank

 accounts controlled solely by son and for his individual benefit.




                                    1
¶3    The district court appointed daughter as conservator for

 mother in August 2018, and on September 14, 2018, daughter filed

 a petition against son claiming, in pertinent part, breach of

 fiduciary duty, civil theft, unjust enrichment, and surcharge.

¶4    In February 2019, the court held a five-day jury trial on the

 petition, and the jury returned verdicts against son for breach of

 fiduciary duty, civil theft, and unjust enrichment.

¶5    On April 1, 2019, the district court entered an “order

 regarding the jury verdicts of February 15, 2019 and other matters”

 in which the court addressed the claims reserved for the court after

 the jury trial. Of note, that order states as follows:

            [Daughter] seeks a surcharge against [son] for
            any damage or loss to [mother’s] estate
            pursuant to § 15-10-504(2), C.R.S. [Daughter]
            intends to submit a Bill of Costs which will
            also include an affidavit of attorney’s fees. The
            Court will review the submissions upon filing.

            ....

            [Daughter] seeks the damage determination
            rendered by the jury regarding the civil theft
            claim be trebled and that the estate receive an
            award of its attorney’s fees and costs.
            [Daughter] believes that the $70,901.17 paid
            by [son] prior to the beginning of trial be
            recognized as an offset.



                                    2
           The $70,901.17 is recognized as an offset. As
           this amount was paid prior to trial it does not
           negate the finding of theft but it results in a
           complete offset and the resulting judgment is
           zero. There is nothing to treble. The Court
           will award attorney’s fees as provided by
           statute and the Court will await the
           submission of the affidavit of attorney’s fees.

¶6    On August 6, 2019, counsel for son filed a notice of appeal on

 his behalf, along with a “motion to determine jurisdiction” with this

 court.1 In the section of the notice of appeal where counsel is to



 1The Colorado Appellate Rules do not expressly permit the type of
 motion we address here. See C.A.R. 27. Nonetheless, we
 acknowledge that a part of the Colorado Practice Series on Appellate
 Law authored by son’s counsel includes the following under a
 section titled “Protective notice of appeal”:

           Sometimes a litigant is unsure whether there
           is a final judgment, or an attorney is unsure
           whether a client will choose to pursue an
           appeal. They may be unable to resolve this
           concern within the time for filing a notice of
           appeal. These are two reasons for filing a
           so-called “protective notice of appeal.” The
           purpose of a protective notice of appeal is to
           preserve the right to appeal when a litigant is
           unsure whether the order is final or counsel is
           unsure whether the client will want to pursue
           an appeal. . . . If the role of the protective
           notice of appeal is to determine whether the
           order is appealable, counsel may want to file a
           motion to determine jurisdiction. This will
           allow the Court of Appeals to promptly resolve

                                   3
indicate whether there is a final judgment, counsel writes, “There is

a question whether the judgment is final. There are issues as to

attorney fees under the civil theft statute and as to prejudgment

interest.” The accompanying motion states, in its entirety, as

follows:

           Gilbert Chavez, through undersigned counsel,
           requests this Court to determine its
           jurisdiction over the appeal he filed August [6],
           2019. As grounds, he states:

           1. The notice of appeal identified an April 1,
           2019 order on jury verdicts and a June 17,
           2019 Order on post-trial motions as the orders
           challenged in the appeal.

           2. In the notice of appeal, Appellant indicated
           there is question whether these orders are final
           for purposes of appeal.

           3. The issue of prejudgment interest has not
           been decided. Pursuant to Grand County
           Custom Homebuilding, LLC v. Bell, 148 P.3d



           the appealable nature of the order and set
           everyone’s mind at ease as to whether the
           appeal will go forward or whether the order is
           not appealable and trial proceedings should
           continue.

18 Anne Whalen Gill, Colorado Practice Series: Appellate Law and
Practice § 12:13, Westlaw (3d ed. database updated Aug. 2019). As
we discuss in more detail later, we disapprove of counsel’s use of a
motion to determine jurisdiction.

                                   4
           398, 401 (Colo. App. 2006), prejudgment
           interest is a component of damages and the
           amount of prejudgment interest must be
           determined for the judgment to be final. See
           also Hall v. American Standard Life Ins. Co. of
           [Wis.], 2012 COA 201, 292 P.3d 1196;
           Andrews v. Picard, 199 P[].3d 6 (Colo. App.
           2007).

           4. Counsel understands that there is also an
           issue of attorney fees outstanding. If the fees
           are part of damages, they[] too must be
           determined for the judgment to be final.

           WHEREFORE Appellant requests this Court to
           determine whether the challenged orders are
           final and ripe for appeal.

¶7    Counsel for daughter filed a notice of cross-appeal on August

 19, 2019. It states:

           [Daughter] affirmatively asserts that in
           addition to not yet having ruled upon the
           issues of civil theft damages in the nature of
           attorney fees and costs and the issue of pre
           and post judgment interest as damages, the
           trial court has not yet ruled on the issue of
           attorney fees and costs in the nature of
           surcharge damages as permitted by C.R.S.
           § 15-10-504(2) and specifically pled by
           [daughter].

¶8    After review by a member of this court’s staff, the motion to

 determine jurisdiction was presented to this division for a ruling.

 We deferred ruling and ordered counsel to address why the court



                                   5
 should not award attorney fees and costs related to the premature

 notice of appeal against her individually based on her affirmative

 statement that prejudgment interest had yet to be calculated to a

 sum certain, with citation to uniform authority from this court that

 such a deficiency defeats finality.2

¶9    Counsel responded, arguing as follows:

          “The issue of whether there are orders ripe for appeal is

            less clear than the November 13, 2019 order suggests.”

          “[F]ollowing Scott v. Scott, 136 P.3d 892 (Colo. 2006), it

            has been challenging to determine which orders in

            probate proceedings trigger the time to appeal.”

          “Counsel has advanced legal argument to support her

            request for this Court to determine jurisdiction, based on

            the actions in the trial court which suggest finality and

            ripeness for appeal. She complied with her duty under

            Colo. R. P. 1.3 in promptly raising a threshold question




 2 Though both H.J. “Jay” Ledbetter and Ms. Gill entered
 appearances on behalf of son, we ordered only Ms. Gill to show
 cause because she signed both the notice of appeal and the motion
 to determine jurisdiction.

                                    6
            whether this matter is ripe for appeal. Raising the

            question is not frivolous under Colo. R. P. 3.1 as there

            are indications in the record that the trial court and the

            parties in the trial court were acting as if there was a

            final judgment.”

           “Counsel has advanced a rational argument and relied on

            this Court’s historical approach to determining

            jurisdiction as a threshold matter. See Western United

            Realty, Inc. v. Isaacs, 679 P.2d 1063 (Colo. 1984).”

           “If counsel’s actions improperly instigated or prolonged

            litigation, this is a change of policy for this Court.”

¶ 10   We now make the order to show cause absolute and dismiss

  the appeal without prejudice for lack of a final judgment.

             II.   Motions Practice in the Court of Appeals

¶ 11   Motions practice is quite limited in the appellate context.

  C.A.R. 27 covers the filing and resolution of motions in this court.

  See C.A.R. 27(a)(2)(A) (“A motion must state with particularity the

  grounds for the motion, the relief sought, and the legal argument

  necessary to support it.”); C.A.R. 27(b) (“The court may act on a

  stipulated motion signed by all parties or a motion for a procedural


                                     7
  order, including a motion under Rule 26(b), at any time without

  awaiting a response.”); C.A.R. 27(c) (“[A] single . . . judge may act

  alone on non-dispositive motions and on voluntary or uncontested

  dispositive motions. . . . The court or a division of the court may

  review the action of a single . . . judge.”).

¶ 12   When a party to an appeal files a motion, most often a staff

  attorney reviews the motion and then it is either ruled on or

  presented to one or three judges for resolution.3 The three judge

  panel determining motions rotates monthly and is generally referred

  to as the “motions division.” James S. Casebolt, Procedures and

  Policies of the Colorado Court of Appeals, 24 Colo. Law. 2105, 2105

  (1995); see also Colorado Appellate Handbook § 11 (Hon. Alan M.

  Loeb ed., 2017 ed.). In contrast, the division considering the merits

  of an appeal is colloquially called the “merits division.” See In re

  Marriage of January, 2019 COA 87, ¶ 9.




  3 A general overview of the protocols of the court of appeals,
  including the types of staff employed by the court, can be found on
  the court of appeals’ website, Colorado Judicial Branch, Protocols,
  https://perma.cc/7W6K-4P6V.

                                       8
¶ 13   Because the court of appeals is a divisional court, § 13-4-

  106(1), C.R.S. 2019, “all divisions function independently from each

  other . . . . Each independent panel decides its cases in light of its

  own interpretation of binding and persuasive authority.” Casebolt,

  24 Colo. Law. at 2106. Accordingly, while a division may defer to

  the determination of another division, divisions are not bound by

  the decisions of other divisions — including a motions division.

  Allison v. Engle, 2017 COA 43, ¶ 22 (merits division is not bound by

  a motions division’s determination of jurisdiction); People in Interest

  of A.V., 2012 COA 210, ¶ 11 n.1 (“One division is not bound by the

  holding of another division.”).

¶ 14   Meanwhile, all civil cases are screened by court staff for

  jurisdictional defects. This screening is independent of the

  presentation of any motions and is part of the court’s obligation,

  discussed in Part III below, to ensure that it has jurisdiction over an

  appeal. When there is a question regarding the court’s jurisdiction

  raised by court staff, the court will issue an order to show cause

  directing the appellant or the parties to address the court’s

  concerns. Responses are routinely presented to a motions division

  for resolution. In general, a motions division will either (1)


                                     9
  discharge the show cause order; (2) dismiss the appeal with or

  without prejudice; or (3) defer the jurisdictional issue to a merits

  division.4

¶ 15   Jurisdictional screening can occur at any time during the life

  of an appeal, as it is counsel’s obligation to ensure the order on

  appeal is final and the notice of appeal is timely filed. C.A.R. 4(a).

¶ 16   Our concern about premature notices of appeal is not

  technical or academic. Premature appeals create significant wastes

  of time and resources. The appellate court (and the parties)

  unnecessarily expend resources when a party pursues a premature

  appeal. And perhaps more importantly, because the filing of a

  notice of appeal deprives the lower court of jurisdiction, unresolved

  claims and issues languish, postponing true finality. This case



  4 A similar process is followed when a party raises a jurisdictional
  issue in a motion to dismiss. The motion to dismiss will be
  presented to a motions division, and the motions division will
  decide whether to order a response. Once the motion to dismiss is
  briefed, the motions division will generally either (1) grant the
  motion to dismiss and dismiss the appeal with or without prejudice;
  (2) deny the motion to dismiss; or (3) defer ruling on the motion to
  dismiss to a merits division. As discussed in the penultimate
  paragraph of Part V below, if the motions division opts for the
  second option — denying the motion — the merits division is free to
  revisit the motions division’s denial of the motion.

                                     10
  illustrates the point, as the district court has been unwilling and

  perhaps unable to act on the postjudgment interest and damages

  issues while the appeal remains pending.

¶ 17   With that backdrop, we turn to counsel’s request that a

  motions division determine for her whether the order she seeks to

  appeal on her client’s behalf is final and appealable.

                       III.   Appellate Jurisdiction

¶ 18   Appellate jurisdiction boils down to three basic concepts:

  subject matter jurisdiction, timeliness, and finality.

¶ 19   Subject matter jurisdiction is determined by statute. § 13-4-

  102(1)(b)-(h), C.R.S. 2019 (listing final judgments over which the

  court of appeals does not have initial jurisdiction).

¶ 20   Timeliness is determined by the Colorado Appellate Rules.

  C.A.R. 4(a) (a notice of appeal in a civil case must be filed within

  forty-nine days of a final judgment).

¶ 21   And finality is determined by case law. See generally Harding

  Glass Co. v. Jones, 640 P.2d 1123, 1125 n.2 (Colo. 1982) (“Absent

  an applicable exception provided by rule or statute, an appeal lies

  only from a final judgment ‘which ends the particular action in

  which it is entered, leaving nothing further for the court


                                     11
  pronouncing it to do in order to completely determine the rights of

  the parties involved in the proceeding.’” (quoting D.H. v. People, 192

  Colo. 542, 544, 561 P.2d 5, 6 (1977))).

¶ 22   An appellate court must always be satisfied that it has

  jurisdiction to hear an appeal. People v. S.X.G., 2012 CO 5, ¶ 9;

  Allison, ¶ 22 (“We must determine independently our jurisdiction

  over an appeal, nostra sponte if necessary.”). Further, a court has

  no authority to expand its jurisdiction. People in Interest of L.R.B.,

  2019 COA 85, ¶ 15; cf. Bowles v. Russell, 551 U.S. 205, 214 (2007)

  (The United States Supreme Court “has no authority to create

  equitable exceptions” to its jurisdictional requirements.).

                               IV.   Finality

¶ 23   A cursory review of the relevant authority clearly establishes

  that there is no final judgment for appellate review.

¶ 24   The court of appeals has initial jurisdiction over “final

  judgments” of the district courts. § 13-4-102(1). As noted, a final

  judgment is “one that 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




                                     12
  the proceedings.” People v. G.S., 2018 CO 31, ¶ 37 (quoting People

  v. Guatney, 214 P.3d 1049, 1051 (Colo. 2009)).

             [T]he same rules of finality apply in probate
             cases as in other civil cases; thus, an order of
             the probate court is final if it ends the
             particular action in which it is entered and
             leaves nothing further for the court
             pronouncing it to do in order to completely
             determine the rights of the parties as to that
             proceeding.

  Scott, 136 P.3d at 896.

¶ 25   The motion to determine jurisdiction concedes, consistent with

  the assertion in the notice of appeal, that “[t]he issue of

  prejudgment interest has not been decided.” It further states, again

  consistent with the assertion in the notice of appeal, that “[c]ounsel

  understands that there is also an issue of attorney fees

  outstanding.” And indeed, the order attached to the notice of

  appeal makes clear that attorney fees remain outstanding for the

  surcharge claim.5 For both of these reasons (either of which would

  be sufficient), there is no final judgment for appeal.



  5 There is also an unresolved issue of attorney fees on the civil theft
  claim. If those attorney fees are damages (and not costs), the lack
  of resolution of that issue too would impair finality. But because
  there are two clear barriers to finality, we do not need to decide

                                     13
                        A.    Prejudgment Interest

¶ 26   First, we have the unresolved issue of prejudgment interest.

  “[B]ecause prejudgment interest is awarded as a consequence of the

  losing party’s tortious action or breach of contract,” it is a

  component of damages. Grand Cty. Custom Homebuilding, LLC v.

  Bell, 148 P.3d 398, 401 (Colo. App. 2006). “Under the principle

  that prejudgment interest is damages, the interest awarded must be

  reduced to a sum certain before the judgment containing the award

  becomes final for purposes of appeal.” Id. In fact, the motion to

  determine jurisdiction cited Grand County Custom Homebuilding.

                              B.   Surcharge

¶ 27   Second, we have unresolved attorney fees as a component of

  surcharge damages.

             If a court, after a hearing, determines that a
             breach of fiduciary duty has occurred or an
             exercise of power by a fiduciary has been
             improper . . . the court may surcharge the
             fiduciary for any damage or loss to the estate,
             beneficiaries, or interested person. Such
             damages may include compensatory damages,
             interest, and attorney fees and costs.




  whether attorney fees awardable under the civil theft statute are
  damages or costs.

                                     14
  § 15-10-504(2)(a), C.R.S. 2019 (emphasis added); see Hall v. Am.

  Standard Ins. Co., 2012 COA 201, ¶ 15 (“Attorney fees are clearly

  damages when they are part of the substance of a lawsuit, that is,

  when the fees sought are the ‘legitimate consequences’ of the tort or

  breach of contract sued upon . . . .”) (citation omitted); cf. Hall,

  ¶¶ 18-20 (attorney fees awardable under insurance bad faith

  statute were damages because the statute includes fees as a remedy

  along with other remedies for bad faith and such fees are a

  “legitimate consequence of an insurer’s unreasonable conduct”);

  Heller v. First Nat’l Bank of Denver, 657 P.2d 992, 999-1000 (Colo.

  App. 1982) (attorney fees are awardable in a breach of trust action

  to make the injured party whole; approved of in Buder v. Sartore,

  774 P.2d 1383 (Colo. 1989)). The motion cited Hall as well.

¶ 28   “[A]n order establishing liability without determining damages

  is not final or appealable.” Grand Cty. Custom Homebuilding, 148

  P.3d at 400; accord, e.g., Harding Glass, 640 P.2d at 1126; Ball

  Corp. v. Loran, 42 Colo. App. 501, 502-03, 596 P.2d 412, 413

  (1979). “[I]f attorney fees and costs are a component of damages for

  a statutory claim . . . , a judgment for damages on such a claim is




                                     15
  not appealable until the amount of the attorney fees and costs has

  been set.” Hall, ¶ 14.

                                  C.    Scott

¶ 29     Counsel’s reliance on Scott to justify the filing of a premature

  notice of appeal and accompanying motion to determine jurisdiction

  is misplaced.

¶ 30     The issue in Scott was whether finality in the probate context

  works differently than it does other cases. The supreme court held

  that it does not. Rejecting decisions by divisions of this court

  saying that “[t]he test for determining finality is whether the order

  disposes of and is conclusive of the controverted claim for which

  that part of the proceeding was brought,” In re Estate of Binford,

  839 P.2d 508, 510 (Colo. App. 1992), the supreme court held “that

  the same rules of finality apply in probate cases as in other civil

  cases; thus, an order of the probate court is final if it ends the

  particular action in which it is entered and leaves nothing further

  for the court pronouncing it do so in order to completely determine

  the rights of the parties as to that proceeding.” Scott, 136 P.3d at

  896.




                                       16
¶ 31    A “proceeding” in the probate context, the court said, is, if not

  prescribed by the probate code, framed by a petition. Id. at 896-97.

  All “[s]ubsequent pleadings which relate to that set of claims [set

  forth in the petition] are part of the same proceeding.” Id. at 897;

  see also In re Estate of Gadash, 2017 COA 54, ¶¶ 23-36 (further

  elucidating Scott’s definition of a proceeding in a probate case).

¶ 32    In our view, Scott clarified the issue of finality in probate

  cases; it did not further muddy the waters. But whatever a

  “proceeding” means after Scott, this much is undeniable: an order

  in a probate proceeding is not final and appealable unless it finally

  disposes of the claims in the proceeding according to the well-

  settled test of finality.

¶ 33    In this case, given that the issues of prejudgment interest and

  attorney fees and costs as components of damages have yet to be

  determined, the April 1, 2019, order cannot be considered final no

  matter the meaning of a probate proceeding after Scott.6 In short,




  6A straight-forward application of Scott in this case shows that the
  proceeding comprises the claims in daughter’s petition against son.

                                      17
  nothing in Scott rendered the answer to the finality question in this

  case less clear than it had been under prior case law.

                     V.    Protective Notices of Appeal

¶ 34   Not all questions of finality are as clear as the ones presented

  in this case. See, e.g., Heotis v. Colo. Dep’t of Educ., 2016 COA 6.

  To be sure, there may be relatively rare occasions when it is

  appropriate for counsel, truly uncertain of a case’s status even after

  diligently investigating the issue of finality, to file a notice of appeal

  to ensure the protection of a client’s appellate rights. See United

  States v. Owen, 553 F.3d 161, 165 (2d Cir. 2009) (“[A] ‘protective’

  notice of appeal is a useful litigation tool where, as here, the

  timeliness of a subsequent appeal could be called into question.”);

  Prod. Credit Ass’n v. Alamo Ranch Co., 951 F.2d 1260, 1991 WL

  275641, at *2 (10th Cir. Dec. 24, 1991) (unpublished table decision)

  (“Due to the confusion” about whether there was a final, appealable

  order, “[d]efendant reasonably filed a protective notice of appeal.”);

  see also Smith v. State, 559 S.W.3d 527, 534 (Tex. Crim. App. 2018)

  (A premature notice of appeal may “relate forward” to a final

  judgment in order to “protect an unskilled litigant who files a notice

  of appeal from a decision that he reasonably but mistakenly


                                      18
  believes to be final.”); cf. Musick v. Woznicki, 136 P.3d 244, 251

  (Colo. 2006) (holding that a trial court is not divested of jurisdiction

  when a party files an appeal before the appealed ruling has been

  certified under C.R.C.P. 54(b)).

¶ 35   But the situation presented to us is not exceptional. Nor, even

  if it were, would it be appropriate for counsel to seek what amounts

  to an advisory opinion on jurisdiction. Instead, counsel must

  exercise her own professional judgment to determine, after

  research, if a protective notice of appeal may be appropriate, while

  noting any uncertainty in the “statement indicating the basis for the

  appellate court’s jurisdiction” that C.A.R. 3(d)(2)(B) requires. An

  appellee who believes that a notice of appeal is premature may

  bring that issue to the court’s attention by promptly filing a motion

  under C.A.R. 27, and, if necessary, this court may impose sanctions

  against an attorney who files a protective notice of appeal

  frivolously, groundlessly, or for improper purposes.

¶ 36   To put a finer point on it, counsel has the obligation to

  determine in the first instance whether there is a final, appealable

  order, and should make that determination in a diligent and

  informed manner. That did not happen here. Rather, counsel


                                     19
  placed the onus of determining the finality of the judgment on this

  court by filing a motion, together with a clearly premature notice of

  appeal, asking us to “determine whether the challenged orders are

  final and ripe for appeal.”

¶ 37   Understanding that we must always ensure that we have

  jurisdiction to determine an appeal, Allison, ¶ 22, we are not

  obligated to act as advocates or do the work of counsel, see, e.g.,

  Sanchez v. Indus. Claim Appeals Office, 2017 COA 71, ¶ 62; Loomis

  v. Seely, 677 P.2d 400, 402 (Colo. App. 1983). Indeed, as aptly put

  by the Illinois Appellate Court, “[t]he appellate court ‘is not merely a

  repository into which an appellant may dump the burden of

  argument and research . . . .’” Ravenswood Disposal Servs. v. Ill.

  Workers’ Comp. Comm’n, 133 N.E.3d 1261, 1270 (Ill. App. Ct. 2019)

  (quoting U.S. Bank v. Lindsey, 920 N.E.2d 515, 535 (Ill. App. Ct.

  2009)).

¶ 38   Moreover, because we are a divisional court and, therefore, the

  merits division assigned the case can disagree with the motions

  division’s conclusion that this court has jurisdiction, counsel seeks

  what is potentially an advisory opinion on finality from a motions

  division. Allison, ¶ 22 (disagreeing with motions division’s


                                     20
  determination of jurisdiction); Madison Capital Co. v. Star

  Acquisition VIII, 214 P.3d 557, 559 (Colo. App. 2009) (disagreeing

  with motions division’s order on finality); Hillen v. Colo.

  Compensation Ins. Auth., 883 P.2d 586, 588 (Colo. App. 1994)

  (dismissing appeal based on untimely filing of notice of appeal

  despite motions division’s denial of motion to dismiss on that basis);

  see also Stor-N-Lock Partners #15, LLC v. City of Thornton, 2018

  COA 65, ¶ 38 (“[W]e must avoid issuing advisory opinions.”).7

¶ 39   We therefore explicitly disapprove of the practice of filing

  motions such as the one we consider here.




  7 Some decisions of the motions division are not advisory: decisions
  that determine rights or resolve an issue in a way that is final —
  that is, not subject to further review by a merits division — would
  not be advisory. See, e.g., People in Interest of N.S., 2017 COA 8,
  ¶¶ 12-18 (motions division determines jurisdiction and resolves the
  merits of the appeal); Romero v. City of Fountain, 307 P.3d 120,
  121-22 (Colo. App. 2011) (motions division denies stay pending
  appeal); People v. Hill, 296 P.3d 121, 123 (Colo. App. 2011) (motions
  division denies motion to file an amended notice of appeal). Indeed,
  this case is such a case. But a determination to allow a case to
  proceed to the merits division notwithstanding a question of finality
  presents no such finality because there the merits division is free to
  reach a contrary conclusion and its decision, not that of the
  motions division, controls.

                                     21
                           VI.   Conclusion

¶ 40   The appeal and cross-appeal are dismissed without prejudice.




                                  22
