Flow Formulas v. Kulik Consulting

23CA1913 Flow Formulas v Kulik Consulting 11-21-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1913
Jefferson County District Court No. 22CV30530
Honorable Christopher Rhamey, Judge

Flow Formulas, LLC, a Virginia limited liability company, Hannah Reese, Caleb
Reese, Ryan Mehaffey, and Bill Hannah,

Plaintiffs-Appellees,

v.

Kulik Consulting LLC, a Virginia limited liability company,

Defendant-Appellant.

APPEAL DISMISSED AND CASE
REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE BROWN
Welling and Graham*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 21, 2024

Spencer Fane, LLP, Jeremy A. Moseley, Denver, Colorado, for Plaintiffs-
Appellees

Leland Shafer, LLP, Thomas D. Leland, Maxwell N. Shafer, Denver, Colorado,
for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 Defendant, Kulik Consulting LLC, appeals the district court’s

order granting partial summary judgment in favor of plaintiffs and

counterclaim defendants, Hannah Reese, Caleb Reese, and Ryan

Mehaffey (collectively, the individual plaintiffs), and in favor of

counterclaim defendants, Bill Hannah and RDM Business Solutions

LLC (RDM). Hannah Reese, Caleb Reese, Ryan Mehaffey, and Bill

Hannah (collectively, the individual owners) are members of Flow

Formulas, LLC. Flow Formulas alone initiated this action against

defendants and counterclaim plaintiffs, Robert Kulik and Kulik

Consulting (collectively, the Kulik defendants).1 By stipulation

several months later, the individual owners and RDM were joined as

parties.2

1 Kulik Consulting is owned by Robert Kulik, who is a named

defendant to the claims asserted in the operative complaint and
against whom partial summary judgment ultimately entered but
who is not a party to this appeal.
2 The individual plaintiffs were joined as plaintiffs and counterclaim

defendants while Bill Hannah and RDM, which is owned by Ryan
Mehaffey, were joined as “counterclaim defendants.” It is unclear
how Hannah and RDM could be joined as “counterclaim
defendants” without first being joined as plaintiffs; instead, it
appears that they should have been joined as third-party
defendants. In addition, as best we can tell, Kulik asserted no
claims against RDM, and RDM asserted no claims against any other
party, so query whether RDM is a proper party to the underlying
litigation. RDM is not a party to this appeal.

1
¶2 After the individual owners and Kulik Consulting filed

cross-motions for summary judgment, the district court entered an

order granting partial summary judgment in favor of the individual

owners. Six months later, the court certified the partial summary

judgment order as a final judgment for purposes of appeal under

C.R.C.P. 54(b). In doing so, the court confirmed that the partial

summary judgment order resolved one claim in favor of the

individual plaintiffs against the Kulik defendants, dismissed three

other of the individual plaintiffs’ claims as moot, and dismissed or

denied twelve of the Kulik defendants’ counterclaims against the

individual owners.

¶3 On appeal, Kulik Consulting contends that (1) Flow Formulas

lacked standing to bring the underlying civil suit; (2) the district

court erred by granting partial summary judgment in favor of the

individual owners; (3) the court erred by entering judgment on

counterclaims that were not addressed in the cross-motions for

summary judgment; and (4) the court erred by certifying its partial

summary judgment order for immediate appeal under C.R.C.P.

54(b). Because we agree with Kulik Consulting’s last contention, we

2
dismiss the appeal and remand the case for further proceedings.

As a result, we do not address the remaining contentions.

I. Background

¶4 Flow Formulas is a limited liability company formed under the

Colorado Limited Liability Company Act. See §§ 7-80-101 to -1101,

C.R.S. 2024. In 2020, Kulik Consulting joined Flow Formulas.3

Beginning in April 2022, after disagreements arose between the

individual plaintiffs and Kulik, Kulik Consulting sought to buy out

the individual owners’ interests pursuant to the company’s

operating agreement. Each of the individual owners responded by

offering to buy out Kulik Consulting’s interest. Ultimately, the

parties refused to sell their respective interests.

¶5 In December 2022, Flow Formulas commenced the underlying

lawsuit against the Kulik defendants. The operative complaint

asserts the following claims:

Asserted
Claim Asserted By
Against
Flow Kulik
1. Breach of Fiduciary Duty
Formulas defendants

3 Kulik denies that he is the alter ego of Kulik Consulting or that he

was a member of Flow Formulas in an individual capacity. This
issue does not affect our disposition, and our reference to Kulik
Consulting here is not binding on the district court on remand.

3
Asserted
Claim Asserted By
Against
Intentional Interference with Flow Kulik
2.
Athlete Promotional Contracts Formulas defendants
Breach of the Operating Flow Kulik
3.
Agreement Formulas defendants
Conversion of Company Flow Kulik
4.
Property Formulas defendants
Declarations re: Kulik’s Capital Flow Kulik
5.
Account Formulas defendants
Declaration that the Buy/Sell
Flow Kulik
6. Provision Does Not Apply to
Formulas defendants
Athlete Promotional Contracts
Flow Kulik
7. Breach of Duty of Loyalty
Formulas defendants
Declaration of the Ownership
Sale that Kulik Must Make to
Individual Kulik
8. Mehaffey, or Alternatively, to
Plaintiffs defendants
Another Owner Who Elected to
Purchase His Interest
Breach of the Operating Kulik
9. Mehaffey
Agreement with Mehaffey defendants
Breach of the Operating Kulik
10. Caleb Reese
Agreement with Caleb Reese defendants
Breach of the Operating Hannah Kulik
11.
Agreement with Hannah Reese Reese defendants
Breach of Duty of Loyalty to Individual Kulik
12.
Other Owners Plaintiffs defendants
¶6 The Kulik defendants assert the following counterclaims:

Asserted
Counterclaim Asserted By
Against
Declaratory Judgment
Regarding Kulik Consulting’s
Kulik Ryan
1. Offer to Purchase Mehaffey’s
Consulting Mehaffey
Membership Interest and
Mehaffey’s Response

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Asserted
Counterclaim Asserted By
Against
Breach of the Operating Kulik Ryan
2.
Agreement Consulting Mehaffey
Equitable Remedy of Specific Kulik Ryan
3.
Performance Consulting Mehaffey
Declaratory Judgment
Regarding Kulik Consulting’s
Kulik
4. offer to Purchase Reese’s Caleb Reese
Consulting
Membership Interest and
Reese’s Response
Breach of the Operating Kulik
5. Caleb Reese
Agreement Consulting
Equitable Remedy of Specific Kulik
6. Caleb Reese
Performance Consulting
Declaratory Judgment
Regarding Kulik Consulting’s
Kulik Hannah
7. offer to Purchase Reese’s
Consulting Reese
Membership Interest and
Reese’s Response
Breach of the Operating Kulik Hannah
8.
Agreement Consulting Reese
Equitable Remedy of Specific Kulik Hannah
9.
Performance Consulting Reese
Declaratory Judgment
Regarding Kulik Consulting’s
Kulik
10. offer to Purchase Hannah’s Bill Hannah
Consulting
Membership Interest and
Hannah’s Response
Breach of the Operating Kulik
11. Bill Hannah
Agreement Consulting
Equitable Remedy of Specific Kulik
12. Bill Hannah
Performance Consulting
Declaratory Judgment as to Kulik Individual
13.
Value of Capital Account Consulting Plaintiffs
Breach of the Operating
Kulik Individual
14. Agreement [Including Failing to
Consulting Plaintiffs
Adjust Kulik’s Capital Account,

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Asserted
Counterclaim Asserted By
Against
Mishandling Corporate
Finances, and Failing to
Transfer Membership Interests]
Breach of the Operating Kulik Individual
15.
Agreement Article 5.4 Consulting Plaintiffs
Kulik Individual
16. Breach of Fiduciary Duty
Consulting Plaintiffs
Fraud/Fraudulent Inducement Kulik Individual
17.
(Pled in the Alternative) defendants Plaintiffs
Flow
Formulas
Unjust Enrichment (Pled in the Kulik
18. and
Alternative) defendants
Individual
Plaintiffs
¶7 In January 2023, the individual plaintiffs moved for partial

summary judgment on their five claims (claims 8-12) against Kulik

Consulting.4 Kulik Consulting simultaneously moved for partial

summary judgment on six of its counterclaims (counterclaims 4-9)

against Hannah Reese and Caleb Reese. Kulik Consulting

requested that the court certify its order under C.R.C.P. 54(b) “if the

[c]ourt denies Kulik Consulting’s request for partial summary

judgment and specific performance” as to Hannah Reese and Caleb

Reese. On April 18, the district court “grant[ed]” the individual

4 Although the individual plaintiffs asserted claims 8-12 against

both Kulik and Kulik Consulting, apparently they sought summary
judgment against only Kulik Consulting, and only Kulik Consulting
responded to the motion.

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owners’ motion and “denie[d]” Kulik Consulting’s motion. The court

did not address Kulik Consulting’s request for Rule 54(b)

certification.

¶8 In July, Flow Formulas moved for partial summary judgment

on claim 6 and the remaining counterclaims, arguing in part that

the Kulik defendants could not demonstrate any damages given the

court’s partial summary judgment order. In response, the Kulik

defendants argued that the partial summary judgment order was

not a final judgment under C.R.C.P. 54(b) and could be

reconsidered. Flow Formulas’ motion is fully briefed and remains

pending before the district court.

¶9 On October 25, the district court entered an “Order Certifying

the Court’s April 18th Ruling Under C.R.C.P. 54(b).” The court first

noted that Kulik Consulting had requested that the court certify its

order as a final judgment under Rule 54(b) if it “sided with” the

individual plaintiffs. But “for reasons unknown . . . due to the

transition between judicial officers in the case, [the court] did not

certify its decision under C.R.C.P. 54(b).”5 The court explained that

5 The judge who entered the C.R.C.P. 54(b) certification was not the

same judge who entered the partial summary judgment order.

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[t]he result of not certifying the prior ruling is
that the subsequent filings on the second
motion for summary judgment resemble two
ships passing in the night; whereby both
parties[’] arguments are contingent on if the
[c]ourt will exercise its discretion to revise that
prior ruling. The [c]ourt feels it inappropriate
to rule on the second summary judgment
motion at this time because its failure to
certify under C.R.C.P. 54(b) may have
impacted the type, quality, and extent of
argument submitted by the parties to their
own prejudice. Further, the [c]ourt returning
to re-evaluate the merits of its April 18th Order
may substantially modify the parties[’]
positions as to nullify large segments of their
second summary judgment motions. The
[c]ourt believes the best way to remedy this
error is to certify its April 18th order under
C.R.C.P. 54(b), and then allow revised
summary judgment filings in the wake of the
Court of Appeals ruling.

¶ 10 The court clarified that, in its view, the partial summary

judgment order had effectively disposed of the individual plaintiffs’

claims 8-11 and the Kulik defendants’ counterclaims 1-12. The

court “granted” claim 8; “dismiss[ed] . . . for mootness” claims 9-11;

“denied as moot” counterclaims 1, 4, 7, and 10; and “denied”

counterclaims 2, 3, 5, 6, 8, 9, 11, and 12. As to each claim and

counterclaim on which it entered judgment, the court stated,

8
without elaboration, that it saw no just reason for delaying entry of

a final judgment on the claim.

¶ 11 Following the Rule 54(b) certification order, the status of the

claims asserted in the complaint was as follows (with the resolved

claims shaded in red and the still-pending claims shaded in green):

Claim
Asserted By Asserted Against Claim Status
No.
1. Flow Formulas Kulik defendantsPending
2. Flow Formulas Kulik defendantsPending
3. Flow Formulas Kulik defendantsPending
4. Flow Formulas Kulik defendantsPending
5. Flow Formulas Kulik defendantsPending
6. Flow Formulas Kulik defendantsPending
7. Flow Formulas Kulik defendantsPending
8. Individual Plaintiffs Kulik defendantsGranted
Dismissed as
9. Mehaffey Kulik defendants
Moot
Dismissed as
10. Caleb Reese Kulik defendants
Moot
Dismissed as
11. Hannah Reese Kulik defendants
Moot
12. Individual Plaintiffs Kulik defendants Pending
¶ 12 And the status of the counterclaims was as follows (with the

resolved counterclaims shaded in red and the still-pending

counterclaims shaded in green):

CC Counterclaim
Asserted By Asserted Against
No. Status
1. Kulik Consulting Ryan Mehaffey Denied as Moot
2. Kulik Consulting Ryan Mehaffey Denied
3. Kulik Consulting Ryan Mehaffey Denied

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CC Counterclaim
Asserted By Asserted Against
No. Status
4. Kulik Consulting Caleb Reese Denied as Moot
5. Kulik Consulting Caleb Reese Denied
6. Kulik Consulting Caleb Reese Denied
7. Kulik Consulting Hannah Reese Denied as Moot
8. Kulik Consulting Hannah Reese Denied
9. Kulik Consulting Hannah Reese Denied
10. Kulik Consulting Bill Hannah Denied as Moot
11. Kulik Consulting Bill Hannah Denied
12. Kulik Consulting Bill Hannah Denied
Individual
13. Kulik Consulting Pending
Plaintiffs
Individual
14. Kulik Consulting Pending
Plaintiffs
Individual
15. Kulik Consulting Pending
Plaintiffs
Individual
16. Kulik Consulting Pending
Plaintiffs
Individual
17. Kulik defendants Pending
Plaintiffs
Flow Formulas and
18. Kulik defendants Individual Pending
Plaintiffs

II. Analysis

¶ 13 Kulik Consulting contends that the district court erroneously

certified its partial summary judgment order as a final judgment for

purposes of appeal under C.R.C.P. 54(b). We agree.

A. Applicable Law and Standard of Review

¶ 14 This court only has jurisdiction over appeals from final

judgments. C.A.R. 1(a); § 13-4-102(1), C.R.S. 2024; see Musick v.

10
Woznicki, 136 P.3d 244, 249 (Colo. 2006). A final judgment “ends

the particular action in which it is entered, leaving nothing further

for the court pronouncing it to do except to execute the judgment.”

Musick, 136 P.3d at 249 (citation omitted).

¶ 15 However, Rule 54(b) creates an exception to the “universal

requirement” that an entire case must be resolved by a final

judgment. E. Cherry Creek Valley Water & Sanitation Dist. v.

Greeley Irrigation Co., 2015 CO 30M, ¶ 11. The rule provides, in

relevant part, that

[w]hen more than one claim for relief is
presented in an action, whether as a claim,
counterclaim, cross-claim or third-party claim,
or when multiple parties are involved, the
court may direct the entry of a final judgment
as to one or more but fewer than all the claims
or parties only upon an express determination
that there is no just reason for delay and upon
an express direction for the entry of judgment.

C.R.C.P. 54(b).

¶ 16 Our “jurisdiction to entertain the appeal of a judgment

certified pursuant to Rule 54(b) depends upon a correct

certification.” E. Cherry Creek Valley Water & Sanitation Dist., ¶ 12

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

11
1982)). Said simply, if the Rule 54(b) certification is not correct, we

must dismiss the appeal for lack of jurisdiction.

¶ 17 A trial court may issue a Rule 54(b) certification only when

three requirements are met: (1) the decision certified rules upon an

entire claim for relief; (2) the decision certified is final in that it is an

ultimate disposition of an individual claim; and (3) the court

determines there is no just reason for delay in entry of a final

judgment on the claim. Id. at ¶ 11 (citing Lytle v. Kite, 728 P.2d

305, 308 (Colo. 1986)).

¶ 18 We review the first two requirements de novo, but “the third ‘is

committed to the trial court’s sound judicial discretion.’” Wolf v.

Brenneman, 2024 CO 31, ¶ 16 (Wolf I) (quoting Harding Glass Co.,

640 P.2d at 1125-26). Thus, we review a court’s determination that

there is “no just reason for delay” for an abuse of discretion. Id. at

¶ 9. A court abuses its discretion when its decision is manifestly

arbitrary, unreasonable, or unfair, or when it misapplies the law.

Id.; Core-Mark Midcontinent Inc. v. Sonitrol Corp., 2016 COA 22,

¶ 49.

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B. Kulik Consulting Could Not Invite an Erroneous C.R.C.P. 54(b)
Certification

¶ 19 As a threshold matter, we reject the individual owners’

contention that Kulik Consulting invited any alleged error by asking

the court to certify its partial summary judgment order under

C.R.C.P. 54(b). True, the invited error doctrine applies narrowly to

prevent a party from complaining on appeal of an error that the

party invited or injected into the case. Horton v. Suthers, 43 P.3d

611, 618 (Colo. 2002). But the correctness of the Rule 54(b)

certification is jurisdictional, see Harding Glass Co., 640 P.2d at

1126, and a party cannot create jurisdiction where it does not exist,

see Nguyen v. Lai, 2022 COA 141, ¶ 15 (Parties “cannot consent to,

or waive, our jurisdiction over the matter when jurisdiction does not

exist. Nor can we confer jurisdiction upon ourselves.”) (citations

omitted). Consequently, we conclude that Kulik Consulting could

not invite an erroneous Rule 54(b) certification.

C. The District Court Erroneously Certified its Order Under
C.R.C.P. 54(b)

¶ 20 There is no dispute that the decision the district court certified

meets the first two requirements for C.R.C.P. 54(b) certification.

See E. Cherry Creek Valley & Water Sanitation Dist., ¶ 11. The

13
partial summary judgment order, when read in conjunction with

the Rule 54(b) certification order, ruled on the entirety of claims

8-11 and counterclaims 1-12. The court “granted” claim 8 and

“denied” or “dismissed” the balance of the claims and

counterclaims. Thus, the decision ultimately disposed of those

claims. See id.

¶ 21 But Kulik Consulting contends that the court erred with

respect to the third requirement because it did not explain why

certification was appropriate under the circumstances and

procedural posture of the case. We agree that the court failed to

explain why there was no just reason for delaying entry of a final

judgment on the claims it certified. Instead, with respect to each

claim or group of claims, the court simply repeated the language

from the rule, noting that “there is no just reason for delay in entry

of a final judgment on the claim” or that it “[saw] no just reason for

delay.”

¶ 22 We acknowledge that our role “is not to reweigh the equities or

reassess the facts but to make sure that the conclusions derived

from those weighings and assessments are juridically sound and

supported by the record.” Wolf I, ¶ 17 (quoting Curtiss-Wright Corp.

14
v. Gen. Elec. Co., 446 U.S. 1, 10 (1980)). But because the court

failed to make findings of fact or articulate its rationale, and that

rationale is not apparent from the record, we are unable to discern

whether its determination is juridically sound and supported by the

record or amounts to an abuse of discretion. See id.; see also DCP

Midstream, LP v. Anadarko Petroleum Corp., 2013 CO 36, ¶ 37 (the

trial court abused its discretion when it made no findings about the

appropriate scope of discovery or any attempt to tailor discovery

needs); In re Marriage of Rozzi, 190 P.3d 815, 822 (Colo. App. 2008)

(“A trial court’s order must contain findings of fact and conclusions

of law sufficiently explicit to give an appellate court a clear

understanding of the basis of its order and to enable the appellate

court to determine the grounds upon which it rendered its

decision.” (citing In re Marriage of Van Inwegen, 757 P.2d 1118,

1121 (Colo. App. 1988))); Ovation Plumbing Inc. v. Furton, 33 P.3d

1221, 1226 (Colo. App. 2001) (the appellate court was unable to

determine whether the trial court abused its discretion by denying

an injunction when the court made no findings of fact to support its

conclusion).

15
¶ 23 Reading the order in its entirety, it appears that the district

court believed certification under C.R.C.P. 54(b) was appropriate

because (1) Kulik Consulting requested certification; (2) the court

did not know why the previous judicial officer had not already

certified the partial summary judgment as final; and (3) resolution

of the second motion for summary judgment filed by Flow Formulas

depended on the disposition of the first motion for summary

judgment. Although the court did not tether these reasons to its

determination that there was no just reason for delay, we will

consider whether they support the determination anyway.

¶ 24 The first two reasons suggest that the court based its

determination regarding the propriety of certification on Kulik

Consulting’s request for certification or on what it presumed to be

the previous judicial officer’s intent to certify the order.6 But the

court actually entering the Rule 54(b) order must satisfy itself that

certification is proper; it cannot abdicate that responsibility by

acquiescing to a party’s request or presuming that another judicial

6 We note that the certifying judge presumed that the previous

judge had mistakenly failed to certify the order, but it is equally, if
not more, plausible that the previous judge determined certification
was inappropriate.

16
officer simply forgot to certify the order. See E. Cherry Creek Valley

Water & Sanitation Dist., ¶ 11 (outlining the three requirements that

a trial court must determine are met before certifying an order). By

deferring to Kulik Consulting — which notably made no effort to

explain why certification was appropriate — or the previous judicial

officer, the court failed to exercise its own discretion, and “failure to

exercise discretion is itself an abuse of discretion.” People v.

Darlington, 105 P.3d 230, 232 (Colo. 2005).

¶ 25 As to the third reason, our review of the record reveals that it

is not a sound rationale for determining that there was no just

reason for delaying entry of final judgment on claims 8-11 and

counterclaims 1-12. The court noted that the parties’ arguments in

the second summary judgment briefing were “contingent on if the

[c]ourt will exercise its discretion to revise” the partial summary

judgment order. It explained that “returning to re-evaluate the

merits of its [partial summary judgment order] may substantially

modify the parties[’] positions as to nullify large segments of their

second summary judgment motions.”

¶ 26 But the court did not explain whether or why it would be

inclined to revisit the partial summary judgment order. None of the

17
parties asked the court to reconsider the order, and the court did

not suggest that the order had been wrongly decided. But even if

the court was hinting that reconsidering the order would be

appropriate, it had the authority to do so. See In re Bass, 142 P.3d

1259, 1263 (Colo. 2006) (explaining that “[e]very ruling or order

made in the progress of an on-going proceeding may be rescinded or

modified during that proceeding upon proper grounds” (quoting

Broyles v. Fort Lyon Canal Co., 695 P.2d 1136, 1144 (Colo. 1985))).

¶ 27 Furthermore, the court did not explain why the issues raised

in the second summary judgment motion depended on the court’s

resolution of claims 8-11 and counterclaims 1-12. Claim 8 asked

the court to declare that Kulik Consulting must sell its membership

interest in Flow Formulas to Mehaffey, or alternatively to another

owner who elected to purchase his interest. Claims 9-11 generally

asserted that Kulik Consulting breached the operating agreement

with individual owners by refusing to sell its interest in Flow

Formulas. And counterclaims 1-12 generally asserted that the

individual owners breached the operating agreement by refusing to

sell their interests in Flow Formulas to Kulik Consulting and by

making improper elections to buy Kulik Consulting’s interest.

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¶ 28 The court “granted” claim 8 and “dismissed” or “denied” the

rest of the claims and counterclaims. In so doing, the court

effectively declared that each of the individual owners had made

valid elections to purchase Kulik Consulting’s interest in Flow

Formulas, were not required to sell their interests to Kulik

Consulting, and had not breached the operating agreement by

declining to sell their interests. It also ordered Kulik Consulting to

sell its interest to Mehaffey, who was the first individual plaintiff to

make a valid election to purchase it.

¶ 29 But it is not readily apparent that the resolution of claim 6 or

the remaining counterclaims addressed in the second motion for

summary judgment depends on the partial summary judgment

order.7 For example, through claim 6, Flow Formulas seeks a

declaration that the Kulik defendants cannot use the buy/sell

provision of the operating agreement to purchase interests in Flow

Formulas that had been acquired by athletes under separate

promotional contracts. But the partial summary judgment order

7 We also note that even if the district court had granted the second

summary judgment motion, six claims would have remained
unresolved.

19
did not address the interplay, if any, between Flow Formulas’

operating agreement and the athletes’ promotional contracts.

¶ 30 In addition, counterclaim 14 involves Kulik Consulting’s claim

that the individual plaintiffs breached the operating agreement by,

among other things, mismanaging Flow Formulas’ finances and

“making up a phony reason to fire Mr. Kulik and to remove him

from his contractually agreed-upon management role.” Through

counterclaim 15, Kulik Consulting claims that the individual

plaintiffs took ultra vires action to retain a law firm and commence

litigation against the Kulik defendants. Counterclaim 16 involves

allegations that the individual plaintiffs breached their fiduciary

duties by conspiring to eject Kulik Consulting from Flow Formulas

and by self-dealing and comingling funds. And in counterclaim 18,

the Kulik defendants assert that Flow Formulas and the individual

plaintiffs have been unjustly enriched and should have to

compensate Kulik for the services, money, and access he provided.

But none of these issues were addressed or resolved in the partial

summary judgment order.

¶ 31 Even if claim 6 and the remaining counterclaims implicated in

the second motion for summary judgment depended on the partial

20
summary judgment order, the court did not explain why it made

more sense to hold the second motion in abeyance while seeking

review of the first order rather than resolving the second motion

and then certifying all the resolved claims under C.R.C.P. 54(b).

Perhaps the court wanted this court’s advice on whether the

previous judge correctly granted partial summary judgment in favor

of the individual owners. But “a district court’s desire to have an

appellate court’s views on the relevant issues before conducting a

trial” will generally not be sufficient to sustain a Rule 54(b)

certification. Wolf v. Brenneman, 2024 COA 71, ¶ 22 (Wolf II).

¶ 32 Under the facts and circumstances presented here, we

conclude that the district court abused its discretion by concluding

there was no just reason for delay and certifying the partial

summary judgment order as final under C.R.C.P. 54(b). See Wolf I,

¶ 18; Wolf II, ¶ 22. Consequently, we lack jurisdiction to review the

appeal. E. Cherry Creek Valley Water & Sanitation Dist., ¶ 12.

III. Disposition

¶ 33 We dismiss the appeal and remand the case to the district

court for further proceedings.

JUDGE WELLING and JUDGE GRAHAM concur.

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