Stephen L. Allison and Barry R. Allison, Plaintiffs-Appellants and Cross-Appellees,
Frank Engel and Mary Engel, Defendants-Appellees and Cross-Appellants.
County District Court No. 12CV43 Honorable Michael K. Singer,
and Boone, LLP, John D. Fognani, Robert P. Thibault, Denver,
Colorado, for Plaintiffs-Appellants and Cross-Appellees
Halliburton Law Firm, L.L.C., Samantha L. Halliburton,
Denver, Colorado, for Defendants-Appellees and
1 C.R.C.P. 54(b) allows a district court to enter a final
judgment on one claim in a multiple claim case, thereby
allowing an immediate appeal of that judgment, but only if
certain requirements are met. One of those requirements is
that there is "no just reason for delay." To give
due force to the strong policy against piecemeal appeals, a
district court must apply this requirement (as well as the
others) with caution, and only where doing so is justified by
reasons that clearly outweigh the concerns animating that
policy. We therefore hold that to satisfy the requirement of
no just reason for delay, a district court must give reasons
for certification showing that unless the judgment on the
claim is certified as final, a party would experience some
hardship or injustice through delay that could be alleviated
only by an immediate appeal.
2 In this case, which pits neighboring landowners against
each other, the district court certified a default judgment
on one of several counterclaims - one for unjust enrichment -
as final, purportedly to "avoid duplicative
efforts" (presumably, multiple trials) and to get
"a clear sense of direction" from the appellate
court as to "the propriety of [the] . . . default
judgment and related issues." These reasons, considered
individually or together, do not show a danger of hardship or
injustice to any party that could be alleviated only by
allowing an immediate appeal. It follows that the district
court abused its discretion in determining that there was no
just reason for delay. It further follows that the district
court improperly certified its default judgment on the unjust
enrichment counterclaim as final, and therefore we lack
jurisdiction over the appeal.
3 The history of this case is rather complicated, but bear
4 The Allisons own parcels of property on either side of a
parcel owned by the Engels. But the Allisons and Engels
differ as to the precise boundaries of their neighboring
parcels, and for a number of years they have had
disagreements and run-ins primarily over a pair of water
wells (one drilled in 1976 and the other drilled in 1995)
located on one of the Allisons' parcels.
5 The Allisons filed a complaint against the Engels asserting
two claims for trespass and one for a declaration of
"the parties' respective rights, obligations,
ownership, use and charges related to" the 1995 well.
The trespass claims allege that the Engels built a fence on
the Allisons' land without their permission, and that the
Engels have trespassed on the Allisons' other parcel,
resulting in "destruction" of a portion of that
6 On July 25, 2013, the Engels filed both their answer to the
complaint and counterclaims. They deny trespassing on either
of the Allisons' parcels because, they allege,
they've obtained both disputed tracts by adverse
possession. In response to the Allisons' declaratory
judgment claim, the Engels allege that (1) the previous owner
of the Allisons' property granted them an easement to
drill a water well, to install pipes delivering well water to
their property, and for access to the well; (2) they drilled
the well in 1976 and used it continually thereafter; (3) a
replacement water well was drilled in 1995; (4) they
installed water lines from the replacement well to the first
well to enable them to get water from the replacement well;
(5) the Allisons allowed others to attach water lines to the
Engels' water lines; and (6) since 1976, they've paid
all electric bills associated with use of the wells. They too
ask for a declaration of the parties' rights and
obligations relating to the water and the wells.
7 The Engels also assert several counterclaims. The first
seeks a declaration quieting title of both disputed tracts.
The second alleges that the Allisons have been unjustly
enriched by the Engels' payment of all electric bills
associated with operation of the wells and of all costs to
repair the wells. The third alleges intentional infliction of
emotional distress resulting from confrontations between the
parties. And the fourth asserts that Mr. Allison has created
a "private nuisance" by interfering with the
Engels' use of and access to the wells and by trespassing
on their property.
8 Rather than replying to the Engels' counterclaims, the
Allisons filed a motion for partial summary judgment on
September 30, 2013, the last day of an extension the court
had previously granted the Allisons to answer or otherwise
respond to the counterclaims. The motion sought summary
judgment on only two of the Engels' allegations - that
they have a "senior water right" in the 1995
replacement well and that they have an easement for access to
that well. The Allisons did not answer or otherwise respond
to any other aspect of the Engels' counterclaims.
9 One week later, the Engels filed a motion for default
judgment on their counterclaims based on the Allisons'
failure to answer or otherwise respond except as in the
motion for partial summary judgment. By rule, the Allisons
had until October 28, 2013, to respond to that motion. They
didn't meet that deadline.
10 Consequently, the district court, noting the Allisons'
failure to respond, granted the Engels' motion for
default judgment in part. The court entered default judgment
in the Engels' favor on all four of their counterclaims
and awarded them damages of $32, 114.05.The court
certified the default judgment as final under Rule 54(b),
though no party had asked for such a
11 Later that same day, the Allisons filed their response to
the motion for default judgment and a motion under C.R.C.P.
60 to set aside the default judgment. They asserted,
incorrectly, that their response wasn't due until October
29, and so the court shouldn't have entered default
judgment. Much procedural wrangling ensued.
12 As now relevant, the Engels responded to the Allisons'
Rule 60 motion, arguing that the Allisons' counsel had
simply miscalculated the response date and that the Allisons
had been obligated to answer the counterclaims because they
had addressed only two "very narrow issues"
relating to one of the counterclaims in their motion for
partial summary judgment. Before filing a reply in support of
their Rule 60 motion, the Allisons filed an answer to the
counterclaims on November 7, 2013, which the Engels
subsequently moved to strike. In their Rule 60 reply, the
Allisons belatedly acknowledged that their counsel had
miscalculated the due date for their response to the
Engels' motion for default judgment. Nonetheless, they
argued that they weren't required to answer or otherwise
respond to the counterclaims because they had filed a
dispositive motion - the aforementioned motion for partial
summary judgment. The Engels moved to strike this new
argument. In the midst of all this, the parties completed
briefing on the Allisons' motion for partial summary
13 On December 30, 2013, the court entered an order setting
aside the default judgment in part. The court ruled that the
Allisons hadn't shown any excusable neglect for failing
to timely answer the counterclaims. But because the motion
for partial summary judgment could "fairly be read as
contesting at least some of the underlying factual
allegations concerning the water wells, " the court said
it had erred in awarding damages on the Engels'
intentional infliction of emotional distress and nuisance
counterclaims. The court left intact the remainder of the
14 After the Allisons filed additional motions under Rules 59
and 60 further attacking the default judgment, the court held
a hearing on the Engels' quiet title counterclaim.
(Before the hearing, the court granted the Allisons'
motion for partial summary judgment only on the issue whether
the Engels had a "senior water right.") Because the
court concluded that there was a factual dispute as to
whether the Engels had adversely possessed the two tracts at
issue, it set aside the default judgment on the quiet title
15 The Allisons appealed. The Engels cross-appealed. This
court ordered the parties to show cause why the appeal should
not be dismissed for lack of a final, appealable order. The
Allisons responded that there had been a proper Rule 54(b)
certification; the Engels asserted (as they had in their
notice of cross-appeal) that there wasn't a final,
appealable order. A motions division of this court dismissed
the appeal and cross-appeal.
16 Undeterred, the Allisons asked the district court for a
new Rule 54(b) certification, arguing that the court's
rulings on the post- default judgment motions had
"clarifi[ed]" the "scope" of the default
judgment. They ...