COLORADO COURT OF APPEALS                                           2017COA78


Court of Appeals No. 16CA1005
Garfield County District Court No. 13CV30316
Honorable John F. Neiley, Judge


Erika Galindo, individually and as parent, guardian, and next friend of Ariana
Guadalupe Galindo, a minor child; and Jose Galindo, individually and as
parent, guardian, and next friend of Ariana Guadalupe Galindo, a minor child,

Plaintiffs-Appellants,

v.

Valley View Association, d/b/a/ Valley View Hospital,

Defendant-Appellee.


                              APPEAL DISMISSED

                                   Division IV
                          Opinion by JUDGE J. JONES
                         Graham and Welling, JJ., concur

                            Announced June 1, 2017


Law Office of Stan Epshtein, Stan Epshtein, John Bellinger, Denver, Colorado,
for Plaintiffs-Appellants

Jaudon & Avery LLP, David H. Yun, Jared R. Ellis, Denver, Colorado, for
Defendant-Appellee

The Law Office of Natalie L. Decker, LLC, Natalie L. Decker, Littleton, Colorado;
Michael J. Norton, Greenwood Village, Colorado, for Amicus Curiae Colorado
Family Action
¶1    Plaintiffs, Erika and Jose Galindo, are the parents of Ariana

 Guadalupe Galindo, who died in utero. They have brought claims

 against Valley View Association, doing business as Valley View

 Hospital (the hospital), seeking damages on behalf of themselves

 and Ariana’s estate. They allege that medical personnel at the

 hospital acted negligently in diagnosing and treating Mrs. Galindo

 when she went to the hospital showing signs of a ruptured

 placenta. They further assert that as a result of that negligence,

 Ariana died and they were injured.

¶2    The district court dismissed the claims plaintiffs assert based

 on Ariana’s death and sua sponte certified its order as final under

 C.R.C.P. 54(b). Because we conclude that the district court erred in

 ruling that there was no just reason to delay an appeal of its order,

 we dismiss the appeal.

                       I. Additional Background

¶3    Plaintiffs’ complaint asserts causes of action against the

 hospital for negligence on behalf of Mr. Galindo, Mrs. Galindo, and

 Ariana (or her estate); negligent infliction of emotional distress on

 behalf of Mrs. Galindo; loss of consortium on behalf of Mr. Galindo;

 and wrongful death on behalf of Mr. and Mrs. Galindo. It also


                                    1
 asserts that damages can be awarded for Ariana’s pre-death

 injuries under the survival statute, section 13-20-101, C.R.S.

 2016.1

¶4    Shortly before trial, the district court ordered the parties to

 brief the issue whether an unborn fetus (who was not subsequently

 born alive) is a “person” within the meaning of the wrongful death

 and survival statutes. (The wrongful death statute, section 13-21-

 202, C.R.S. 2016, and the survival statute apply in the event of the

 “death of a person.”)2




 1 A wrongful death claim based on negligence in causing the death
 of another may be brought by certain statutorily identified
 individuals to recover damages those individuals incurred as a
 result of the other’s death. §§ 13-21-201 to -204, C.R.S. 2016. In
 contrast, the survival statute, section 13-20-101, C.R.S. 2016,
 allows an action on behalf of a deceased person’s estate for
 damages that person incurred prior to death; it provides that a
 cause of action that accrued prior to death is not extinguished upon
 the person’s death. See Espinoza v. O’Dell, 633 P.2d 455, 462-66
 (Colo. 1981) (explaining how the wrongful death and survival
 statutes operate); Gonzales v. Mascarenas, 190 P.3d 826, 828-29
 (Colo. App. 2008) (same).
 2 The hospital never raised the issue of whether Ariana was a
 “person” within the meaning of the wrongful death and survival
 statutes. Though we don’t approve of the court’s decision to raise
 the issue on its own, the case is nevertheless before us.


                                    2
¶5    The court postponed the trial. After considering the parties’

 briefs, the court ruled that Ariana was not a “person” within the

 meaning of the statutes, and it dismissed the wrongful death claim

 and the negligence claim brought on behalf of Ariana’s estate.3 At

 the end of the order, the court wrote: “There being no just reason

 for delay, final judgment is hereby entered in favor of [the hospital]

 and against the Plaintiffs on both claims pursuant to C.R.C.P.

 54(b).” The court didn’t explain why there was no just reason for

 delay.

¶6    Plaintiffs appealed the order. After the appeal was fully

 briefed, the clerk assigned the case to this division. The division

 then ordered the parties to brief the issue whether the district court

 had properly certified the order as final under Rule 54(b), directing

 them specifically to explain why there was no just reason to delay

 an appeal until the entire case has been resolved, and, even more


 3 The court said it was dismissing the wrongful death and survival
 statute claims. But, as discussed, the survival statute does not
 create an independent cause of action; rather, it provides that a
 person’s death does not preclude an action by that person’s estate if
 that person could have brought an action had she survived. § 13-
 20-101(1). The effect of the court’s order, therefore, was to dismiss
 the wrongful death claim and the negligence claim that plaintiffs
 have asserted on Ariana’s behalf (or on behalf of her estate).

                                    3
 specifically, to explain what hardship or injustice would result to

 any party if the appeal is not allowed to proceed. See Allison v.

 Engel, 2017 COA 43, ¶ 1 (to show that there is no just reason for

 delay, it must appear that “a party would experience some hardship

 or injustice through delay that could be alleviated only by an

 immediate appeal”). Having considered the parties’ supplemental

 briefs and the record, we conclude that the district court’s

 conclusory ruling that there is no just reason for delay is

 unsupported by the record or law.

                   II. The Requirements of Rule 54(b)

¶7    Rule 54(b) creates an exception to the rule that an appellate

 court has jurisdiction only over appeals from final judgments.

 Harding Glass Co. v. Jones, 640 P.2d 1123, 1125, 1126 (Colo.

 1982). But that exception is quite limited, and it must be

 construed consistently with the historical policy against allowing

 piecemeal appeals. Allison, ¶ 31.

¶8    A court correctly certifies a ruling as final under the rule only

 if (1) it is on an entire claim for relief; (2) it ultimately disposes of

 the claim; and (3) the court determines expressly that there is no

 just reason to delay an appeal on the ruling. Lytle v. Kite, 728 P.2d


                                      4
  305, 308 (Colo. 1986); Harding Glass, 640 P.2d at 1125; Allison,

  ¶ 24.

¶9        In this case, we assume that the ruling satisfies the first two

  parts of this test.4 We focus on part three.

             III. Standard of Review — No Just Reason for Delay

¶ 10      Ordinarily, we review a district court’s determination that

  there is no just reason for delay for an abuse of discretion. Lytle,

  728 P.2d at 308, 309; Allison, ¶ 25. We do so because determining

  whether there is no just reason for delay requires considering

  interests of judicial administration and equitable factors, see

  Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 8 (1980); Lytle,

  728 P.2d at 309, and “the district court is ‘most likely to be familiar

  with the case and with any justifiable reasons for delay.’” Allison,

  4 But this assumption is questionable. We don’t just look at the
  labels in a party’s pleading. Claims are separate “when more than
  one recovery is possible and when a judgment on one claim would
  not bar a judgment on the other claims.” Richmond Am. Homes of
  Colo., Inc. v. Steel Floors, LLC, 187 P.3d 1199, 1203 (Colo. App.
  2008). The negligence claim and the wrongful death claim are
  premised on the same alleged negligence. So if the fact finder
  determines that the hospital employees were not negligent, and
  finds against Mrs. Galindo on that basis, that would seem to bar
  any claim based on Ariana’s death or on behalf of Ariana’s estate.
  See Argus Real Estate, Inc. v. E-470 Pub. Highway Auth., 109 P.3d
  604, 608 (Colo. 2005) (claim preclusion); Bebo Constr. Co. v. Mattox
  & O’Brien, P.C., 990 P.2d 78, 84-85 (Colo. 1999) (issue preclusion).

                                       5
  ¶ 25 (quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437

  (1956)).5

¶ 11     Our deference to the district court’s determination therefore

  depends on whether we know the court’s reasons, so it’s important

  that the court not merely parrot the language of the rule (“no just

  reason for delay”), but clearly explain its reasoning. Still, we do not

  say that a court’s failure to do that is some sort of jurisdictional

  defect. It isn’t. But unless the court explains its reasoning, or the

  reasons are otherwise obvious from the record, “any deference we


  5   Relevant considerations include

              (1)the relationship between the adjudicated
              and unadjudicated claims; (2) the possibility
              that the need for review might or might not be
              mooted by future developments in the district
              court; (3) the possibility that the reviewing
              court might be obliged to consider the same
              issue a second time; (4) the presence or
              absence of a claim or counterclaim which
              could result in set-off against the judgment
              sought to be made final; [and] (5)
              miscellaneous factors such as delay, economic
              and solvency considerations, shortening the
              time of trial, frivolity of competing claims,
              expense, and the like.

  Allis-Chalmers Corp. v. Phila. Elec. Co., 521 F.2d 360, 364 (3d Cir.
  1975) (footnotes omitted), abrogation on other grounds recognized by
  Elliott v. Archdiocese of N.Y., 682 F.3d 213, 221 (3d Cir. 2012); see
  also Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 8 (1980).

                                        6
  might otherwise accord the 54(b) certification decision will be

  nullified.” Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d 162,

  166 (11th Cir. 1997); accord, e.g., Braswell Shipyards, Inc. v. Beazer

  E., Inc., 2 F.3d 1331, 1336 (4th Cir. 1993); Consol. Rail Corp. v. Fore

  River Ry. Co., 861 F.2d 322, 325-26 (1st Cir. 1988); Solomon v.

  Aetna Life Ins. Co., 782 F.2d 58, 61 (6th Cir. 1986); see also 10

  James Wm. Moore et al., Moore’s Federal Practice § 54.23[2], at 54-

  68 to 54-69 (3d ed. 2015); 10 Charles Alan Wright, Arthur R. Miller

  & Mary Kay Kane, Federal Practice and Procedure § 2659, at 140-44

  (4th ed. 2014).6

¶ 12   In this case, the district court didn’t give any explanation as to

  why it was certifying the ruling, much less any explanation as to

  why there was no just reason for delay. The record doesn’t

  otherwise reveal some obvious explanation.7 Thus, we will carefully



  6 We consider persuasive case law applying the federal counterpart
  to C.R.C.P. 54(b) because the federal rule and the state rule are
  virtually identical. Harding Glass Co. v. Jones, 640 P.2d 1123,
  1126 n.5 (Colo. 1981); Allison v. Engel, 2017 COA 43, ¶ 25 n.3.
  7 Sometimes the reasons may be obvious based on how claims are
  pleaded. And oftentimes the reasons for finding that there is no
  just reason for delay may be set forth in a party’s motion requesting
  certification, and an appellate court can assume that the district
  court relied on those reasons. See Clos v. Corr. Corp. of Am., 597

                                     7
  scrutinize the district court’s decision without according it

  deference.

                IV. Analysis — No Just Reason for Delay

¶ 13   The hospital concedes that the district court improperly

  certified the ruling. It gleans from the court’s ruling and the court’s

  decision to stay the proceedings pending this appeal that the court

  sought to avoid multiple trials, and it recognizes that Allison holds

  that that reason is “plainly insufficient to justify certification

  because the same could be said about any case involving multiple

  claims or parties as to which a dispositive ruling is entered on one

  claim, or as to one party, before trial.” Allison, ¶ 40.

¶ 14   Plaintiffs, however, try to justify the court’s certification in four

  ways.

¶ 15   First, they argue that unlike the situation in Harding Glass,

  the claims the court dismissed in this case are “entire stand-alone



  F.3d 925, 929 (8th Cir. 2010); see also Huggins v. FedEx Ground
  Package Sys., Inc., 566 F.3d 771, 774 (8th Cir. 2009) (“In some
  cases, a sufficient reason for Rule 54(b) certification may be evident
  from the record, even though the court did not explain its
  reasoning.”); Bldg. Indus. Ass’n of Superior Cal. v. Babbitt, 161 F.3d
  740, 744 (D.C. Cir. 1998) (failure to give reasons may not be a
  problem where the court’s reasoning is discernable from other parts
  of the record). But in this case, no party moved for certification.

                                      8
  claims.” But that goes mainly to the first two parts of the Rule

  54(b) certification test, not the issue whether there is no just reason

  for delay.8

¶ 16   Second, and similarly, plaintiffs argue that this case is not like

  Allison, where the court had dismissed one counterclaim while

  various claims and counterclaims remained pending. That’s true,

  but the difference is merely one of degree, not kind. That this case

  involves dismissal of a greater percentage of claims says nothing

  about whether there is no just reason for delay, or even more

  specifically about whether any party will suffer hardship or injustice

  unless this appeal proceeds.

¶ 17   Third, plaintiffs assert that this appeal involves “an issue of

  first impression” that we “will inevitably have to address.” Many

  cases, however, involve issues of first impression. Plaintiffs haven’t

  cited any authority for the proposition that the presence of such an

  issue justifies Rule 54(b) certification, and we haven’t found any.

  See Braswell Shipyards, 2 F.3d at 1336 (deeming that reason



  8As discussed in footnote 4 above, it is not at all clear that the
  dismissed claims are truly “stand-alone claims.”


                                     9
  insufficient and dismissing the appeal).9 And as for whether we will

  “inevitably” have to address the issue, again the same could be said

  about issues in most any multiple-claim or multiple-party case.

¶ 18   Moreover, the assumption that we will have to decide the

  “person” issue at some point in this case may prove incorrect. If a

  fact finder determines that the hospital wasn’t negligent, and that

  finding is affirmed on appeal, that would be an independent basis

  for affirming the judgment on the wrongful death claim and the

  negligence claim brought on behalf of Ariana’s estate pursuant to

  the survival statute. Because all of the claims are premised on

  exactly the same allegations of negligence, the doctrines of claim

  and issue preclusion would thus bar relitigation of the matter of the

  hospital’s negligence, even if we decided the “person” issue

  differently. See Argus Real Estate, Inc. v. E-470 Pub. Highway Auth.,

  109 P.3d 604, 608 (Colo. 2005) (claim preclusion); Bebo Constr. Co.

  v. Mattox & O’Brien, P.C., 990 P.2d 78, 84-85 (Colo. 1999) (issue


  9 That the case involves a matter of first impression is relevant to
  whether the ruling would be appropriate for an interlocutory appeal
  under C.A.R. 4.2. See C.A.R. 4.2(b)(2); Braswell Shipyards, Inc. v.
  Beazer E., Inc., 2 F.3d 1331, 1336 n.4 (4th Cir. 1993) (so reasoning
  in light of the federal statutory counterpart to C.A.R. 4.2).


                                   10
  preclusion).10 In any event, the fact that we may be called on to

  decide the issue at some point doesn’t mean that any party will

  suffer hardship or injustice if we don’t decide it now.

¶ 19      Fourth, plaintiffs assert in purely conclusory fashion that

  dismissing the appeal will be “harmful to the parties” and “the

  justice system as a whole.” We don’t see how. Requiring all issues

  in the case to be resolved before an appeal in no way hinders any

  party’s access to justice. Rather, it promotes such access in a more

  efficient fashion.

¶ 20      The district court’s ruling is inappropriate for certification

  under Rule 54(b) for the added reason that the adjudicated and

  unadjudicated claims are closely interrelated. See Curtiss-Wright,

  446 U.S. at 10 (a court should consider “the interrelationship of the

  claims so as to prevent piecemeal appeals in cases which should be

  reviewed only as single units”); Ebrahimi, 114 F.3d at 167; Braswell

  Shipyards, 2 F.3d at 1337; Consol. Rail Corp., 861 F.2d at 326;

  Solomon, 782 F.2d at 62; see also 10 Moore’s Federal Practice

  § 54.23[1][a]; 10 Federal Practice and Procedure § 2659, at 108-10.

  The operative facts of all of the claims are the same. Mr. and Mrs.

  10   Also, the parties could settle the case.

                                       11
  Galindo remain parties to the unadjudicated claims. See Consol.

  Rail Corp., 861 F.2d at 326 (“Application of Rule 54(b) is particularly

  inappropriate ‘when the contestants on appeal remain,

  simultaneously, contestants below.’” (quoting Spiegel v. Trs. of Tufts

  Coll., 843 F.2d 38, 44 (1st Cir. 1988))). And, as discussed, the key

  issue common to all the claims is whether the hospital was

  negligent. So while the dismissed claims may be separate from the

  other claims asserted by Mr. and Mrs. Galindo individually, all the

  claims are so closely interrelated that allowing piecemeal appeals

  would be counterproductive. Cf. Clark v. Baka, 593 F.3d 712 (8th

  Cir. 2010) (in action seeking damages for injuries caused to child

  during birth at hospital, district court improperly certified judgment

  in favor of one defendant, a hospital management company, where

  claims against the remaining health care providers arose out of the

  same facts).

                             V. Conclusion

¶ 21   The appeal is dismissed.

       JUDGE GRAHAM and JUDGE WELLING concur.




                                    12
