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Jack Hait v. Walter K. Miller, d/b/a Ten Pin Lounge; George A. Canjar, Director of Excise and Licenses for the City and County of Den

1. APPEAL AND ERROR — Absence of Final Judgment — Not Raised by Parties — Notice Taken — Appellate Court. Even though the absence of a final judgment was not raised by the parties to an appeal, the Court of Appeals is required to take notice thereof; accordingly, where there was no order dismissing or otherwise disposing of a claim against one of the parties to an appeal, nor any order entered in accordance with C.R.C.P. 54(b), there was no final judgment to support the appeal as required by the appellate rules.

Opinion by JUDGE BERMAN.

Appellant Hait appeals the granting of a liquor license to Miller. Because there is no final judgment, we dismiss the appeal.

Hait instituted this action in the district court under C.R.C.P. 106(a)(4) alleging among other things that appellee Canjar abused his discretion and acted arbitrarily and capriciously in the granting of Miller's application for a liquor license, and that the action of appellee Dolan in denying Hait's application for a state hearing was unlawful, arbitrary, and capricious. Hait prayed that the defendants be enjoined from giving effect to the decision approving the application for a liquor license.

After argument, the district court issued the following order:

"IT IS ORDERED BY THE COURT that the Opinion of the Director of Excise and Licenses for the City and County of Denver, Colorado, be, and hereby is affirmed."

The record reveals no action being taken by the court with respect to the claim against appellee Dolan.

[1] Although the absence of a final judgment has not been raised by any of the parties, we are required to take notice thereof. Schtul v. Christ, 132 Colo. 293, 287 P.2d 661 (1955). There is no order dismissing or otherwise disposing the claim against the appellee Dolan, nor is there any order entered in accordance with C.R.C.P. 54(b). Thus, there is no final judgment to support this appeal as required by C.A.R. (1)(a). [2] We do not engage in piecemeal review of a case, and "a judgment or decree is not final which determines the action as to less than all of the defendants, except as provided in Rule 54(b)," Berry v. Westknit Originals, Inc. 145 Colo. 48, 357 P.2d 652 (1960). We hold that C.R.C.P. 54(b) is not applicable to the instant case. See TransCentral v. McBreen, 31 Colo. App. 71, 497 P.2d 1033 (1972); cf. Moschetti v. Liquor Licensing Authority, 176 Colo. 281, 490 P.2d 299 (1971).

The appeal is dismissed without prejudice.

CHIEF JUDGE SILVERSTEIN and JUDGE RULAND concur.

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HAIT v. MILLER
(Jan 6, 1977)