In a 1992 amendment to a provision of the Colorado Governmental Immunity Act, ยง 24-10-101 to -120, 10A C.R.S. (1988 1996 Supp.), the General Assembly provided that a trial court decision on whether a public entity enjoyed sovereign immunity from suit "shall be a final judgment and shall be subject to interlocutory appeal." ยง 24-10-108, 10A C.R.S. (1996 Supp.). The court of appeals recently interpreted this language in Richland Development Co. v. East Cherry Creek Valley Water Sanitation District, 899 P.2d 371 (Colo.App. 1995). The court noted that an order refusing to dismiss a civil complaint would not ordinarily be considered a final judgment.
ยถ 13 We reject Denver's request to amend the notice of appeal to include Officer Jossi as an appellant. ยถ 14 C.A.R. 3 provides that an appeal permitted by law shall be taken by filing a notice of appeal within the time allowed by C.A.R. 4. Under section 24โ10โ108, a trial court's ruling on a motion brought by a public entity that raises the issue of sovereign immunity is final and subject to interlocutory appeal. See Richland Dev. Co. v. E. Cherry Creek Valley Water & Sanitation Dist., 899 P.2d 371, 372โ73 (Colo.App.1995).The timely filing of a notice of appeal is jurisdictional.
1996). Section 24-10-108 authorizes the taking of an interlocutory appeal on an issue involving governmental immunity without the necessity of obtaining trial court certification under C.R.C.P. 54(b). Walton v. State, supra; Richland Dev. Co. v. E. Cherry Creek Valley Water Sanitation Dist., 899 P.2d 371 (Colo.App. 1995) (no C.R.C.P. 54(b) certification is required to appeal a ruling on sovereign immunity even if there are other claims pending in the trial court). The public entity has a right, not an obligation, to take an interlocutory appeal. Walton v. State, supra.
Although the legislature provided that the trial court's CGIA ruling is "subject to interlocutory appeal" and may be certified as a final and appealable order pursuant to ยง 24-10-108, an order otherwise denying a motion to dismiss a complaint is not a final judgment that can be appealed because it leaves issues to be resolved by the trial court. Richland Dev. Co. v. E. Cherry Creek Valley Water Sanitation Dist., 899 P.2d 371 (Colo.App. 1995); Wales v. State Farm Mut. Auto. Ins. Co., 528 P.2d 394 (Colo.App. 1974) (not published pursuant to C.A.R. 35(f)). Thus, we do not have jurisdiction to entertain that portion of defendants' appeal related to the trial court's denial of their C.R.C.P. 12(b)(5) motion to dismiss.
This is true even if the order does not dispose of an entire claim or is otherwise interlocutory. See Richland Development Co. v. East Cherry Creek Valley Water Sanitation District, 899 P.2d 371 (Colo.App. 1995) (despite other claims pending in the trial court, no C.R.C.P. 54(b) certification required to appeal a ruling on sovereign immunity). Therefore, unlike provisions which may allow for, but do not require, an appeal from an interlocutory order, 24-10-108 requires that the appeal of the dismissal of a claim as barred by the GIA must be sought immediately, within the time requirements of C.A.R. 4(a), or it is barred.