Opinion
No. 80CA0329 No. 80CA0640
Decided September 2, 1982. Rehearing denied October 7, 1982. Certiorari denied November 29, 1982.
Appeal from the District Court of El Paso County, Honorable Bernard R. Baker, Judge.
Hornbein, MacDonald, Fattor and Buckley, P.C., Donald P. MacDonald, Rhett K. Dacus, Cross, Gaddis, Kin Quicksall, David L. Quicksall, for plaintiffs-appellees.
Gordon D. Hinds, City Attorney, James C. Colvin, II, City Attorney, Jackson L. Smith, Deputy City Attorney, Michael J. Heydt, Deputy City Attorney, Spurgeon, Haney and Howbert, W. Allen Spurgeon, for defendant-appellant.
Defendant, City of Colorado Springs (City), appeals partial summary judgment entered in favor of plaintiffs, discharged city employees. We dismiss this appeal as premature.
The City of Colorado Springs adopted a charter amendment entitled "Removal of Striking Employees." A subsection of this amendment requires that each city employee be furnished a copy of the amendment and be apprised of its provisions. Plaintiffs were absent from employment when the City implemented discharge proceedings without complying with this notice provision.
At the beginning of discharge hearings, plaintiffs filed this action for injunctive relief and damages under 42 U.S.C.A. § 1983 (1976). The trial court granted a preliminary injunction which enjoined the City from proceeding with these hearings. Later, the trial court granted plaintiffs' motion for partial summary judgment and ordered a mandatory permanent injunction which required the City to reinstate plaintiffs to their former positions. The trial court certified the granting of the permanent injunction as a final judgment under C.R.C.P. 54(b), while reserving the questions of liability and damages under 42 U.S.C.A. § 1983 (1976).
Our jurisdiction to entertain an appeal of the trial court's C.R.C.P. 54(b) certification depends upon the correctness of the certification itself. See Harding Glass Co. v. Jones, 640 P.2d 1123 (Colo. 1982). Before an appeal can be brought, all claims for relief in a case must be resolved by final judgment unless C.R.C.P. 54(b) or another rule or statutory section is applicable. D.H. v. People, 192 Colo. 542, 561 P.2d 5 (1977). A final judgment ends the action "leaving nothing further for the court . . . to do in order to completely determine the rights of the parties involved in the proceeding." Stillings v. Davis, 158 Colo. 308, 406 P.2d 337 (1965).
However, pursuant to C.R.C.P. 54(b), a trial court may certify the entry of a final judgment of a particular claim in actions involving multiple claims for relief. A C.R.C.P. 54(b) certification requires the trial court to determine:
"First, . . . that the decision to be certified is a ruling upon an entire `claim for relief . . . .' Next, that the decision is final `in the sense of an ultimate disposition of an individual claim . . . . Finally, . . . whether there is just reason for delaying entry of a final judgment on the claim." Harding Glass Co., supra, at 1125.
In the instant case, appeal cannot be taken because the final order under C.R.C.P. 54(b) is improperly granted. The judgment is void because C.R.C.P. 54(b) applies only when multiple claims for relief are present. C.R.C.P. 54(b) cannot be used to appeal a part of a single claim for relief. See Moore Co. v. Triangle Construction Development Co., 44 Colo. App. 499, 619 P.2d 80 (1980). By its terms C.R.C.P. 54(b) is limited to an action involving multiple claims for relief, at least one of which has been totally adjudicated.
Although plaintiffs here requested different remedies for relief, injunction and damages, the multiple remedies sought were to redress the violation of one legal right. See Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976); Julius Hyman Co. v. Velsicol Corp., 119 Colo. 121, 201 P.2d 380 (1948). Plaintiffs assert their due process right to appropriate notice prior to termination of employment was violated, and should have been remedied by either entry of an injunction, or damages, or both. As plaintiffs allege the violation of one legal right, only one claim is asserted, which, by virtue of its singularity, is not certifiable under C.R.C.P. 54(b). See Harding Glass Co., supra.
The appeal is dismissed.
JUDGE STERNBERG concurs.
JUDGE BERMAN dissents.