Opinion
April 22, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 826
A. Daniel Rooney, Aurora, for plaintiffs-appellants.
Coulter & Kaufman, Richard Kaufman, Aurora, for defendants-appellees.
ENOCH, Judge.
As property owners and residents of the City of Aurora plaintiffs initiated this action to seek relief from the City's action zoning certain property which it had contemporaneously annexed from the County of Arapahoe. The appeal by plaintiffs is dismissed as there is no final appealable judgment.
In the first amended complaint, which framed the issues of this action, plaintiffs denominated three claims for relief. In the first claim plaintiffs seek to enjoin the use of the property as zoned, alleging an improper contract for annexation and zoning, and violation of a master zoning plan. The second claim asks for a declaratory judgment that the zoning ordinances in question are invalid. The third claim is in the nature of a writ of certiorari under C.R.C.P. 106 and states as follows:
'The acts of the defendant City of Aurora, through its Planning Commission and City Council, as described above, were arbitrary and capricious an abuse of discretion of the Defendant City of Aurora and said acts exceeded the jurisdiction of the Defendant City of Aurora.'
Pursuant to the City's motion, the first and second claims were dismissed. As to the third claim the court ruled that plaintiff was barred for failure to bring the action within thirty days of the action of the Planning Commission and that the Planning Commission was an indispensible party. Accordingly the court stated that 'the third claim for relief is dismissed with prejudice.' However, in the next sentence the court held that it 'does have jurisdiction to entertain review solely as to whether or not the City Council of the City of Aurora was arbitrary and capricious in reviewing the recommendation of the Planning Commission . . ..' The court then entered judgment as of March 19, 1974, in the following form:
'The court further orders that the dismissal as aforedescribed shal be a final judgment pursuant to the Colorado Rules of Civil Procedure.'
On March 28, plaintiffs filed a motion to amend their pleadings and tendered a second amended complaint to which the City filed its objection. According to the record no action has been taken on this motion. Plaintiff's motion for new trial filed April 24 was subsequently denied. On May 24, plaintiffs filed their notice of appeal and also filed a motion to amend the judgment. Plaintiffs specifically requested the court to amend its judgment to comply with the requirements of C.R.C.P. 54(b) by including 'a finding and determination that there is no just reason for delay in the entry of a final judgment as to the Court's dismissal of the First and Second Claims for Relief and the Order restricting the remaining issue to a review of the actions of the Aurora City Council.' In response to this request the court determined that 'no amendment is necessary.'
With the case in this posture it is impossible to determine if the trial court had decided that the requirements of C.R.C.P. 54(b) had been satisfied or if the court held in effect that an appealable final judgment had not yet been entered. In either event we find the judgment entered is not an appealable final judgment.
In order to have an appealable final judgment before a determination of all claims, there must be strict compliance with the requirements of C.R.C.P. 54(b). Though an express final judgment was entered, there was no determination that there was no just reason for delay. This alone is sufficient cause to require dismissal of this appeal. Smith v. City of Arvada, 163 Colo. 189, 429 P.2d 308; Blackburn v. Skinner, 156 Colo. 41, 396 P.2d 968; Fidelity & Deposit Co. v. May, 142 Colo. 195, 350 P.2d 343.
Appeal dismissed.
PIERCE and STERNBERG, JJ., concur.