SUMMARY

February 11, 2021

2021COA17

No. 19CA2234, Tug Hill Marcellus LLC v. BKV Chelsea LLC —

Courts and Court Procedure — Colorado Uniform Arbitration 

Act — Appeals

A division of the court of appeals considers for the first time 

whether the court has jurisdiction to hear an appeal of an order 

denying a motion to consolidate arbitration proceedings under 

section 13-22-228(1), C.R.S. 2020, of the Colorado Revised Uniform 

Arbitration Act. The division concludes that, because an order 

denying a motion to consolidate arbitration proceedings is neither 

one of the pre-arbitration orders listed in section 13-22-228(1)(a) 

and (b), nor a “final judgment” under section 13-22-228(1)(f), the 

court lacks jurisdiction over the appeal. 

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion.
COLORADO COURT OF APPEALS 2021COA17

Court of Appeals No. 19CA2234

City and County of Denver District Court No. 19CV33147

Honorable Morris B. Hoffman, Judge

Tug Hill Marcellus LLC, Radler 2000 LP, and Chief Exploration & Development 

LLC,

Petitioners-Appellants,

v.

BKV Chelsea LLC,

Respondent-Appellee.

APPEAL DISMISSED

Division VI

Opinion by JUDGE LIPINSKY

Richman and Pawar, JJ., concur

Announced February 11, 2021

Lewis Roca Rothgerber Christie LLP, Douglas B. Tumminello, Denver,

Colorado; Sidley Austin LLP, Angela C. Zambrano, Barret V. Armbruster, 

Dallas, Texas, for Petitioners-Appellants Tug Hill Marcellus LLC and Radler 

2000 LLP

Hayes and Boone, LLP, Lee F. Jonston, Kate Repko, Kelli Bills, Denver, 

Colorado, for Petitioner-Appellant Chief Exploration & Development LLC

Fox Rothschild LLP, Patrick J. Casey, Spencer L. Sears, Esther H. Lee, Denver, 

Colorado, for Respondent-Appellee
1

¶ 1 Appellants Tug Hill Marcellus LLC, Radler 2000 LP, and Chief 

Exploration & Development LLC (collectively, Sellers), appeal the 

district court’s order denying their petition to consolidate appellee 

BKV Chelsea LLC’s three separate arbitration proceedings against 

them. Because orders denying petitions to consolidate arbitration 

proceedings are not one of the two pre-award court orders that may 

be appealed under the Colorado Revised Uniform Arbitration Act 

(the Act), we lack jurisdiction over this matter and dismiss Sellers’ 

appeal. 

I. Background

¶ 2 Sellers entered into substantially similar agreements with BKV 

for the sale of interests in oil, gas, and mineral leases and related 

assets. The agreements included identical arbitration provisions. 

BKV alleged that Sellers breached their agreements and served the 

individual Sellers with a demand for arbitration. BKV requested a 

separate arbitration proceeding against each of the Sellers. 

¶ 3 Sellers proposed that the arbitration proceedings be 

consolidated, but BKV refused. Sellers petitioned the district court 

to consolidate the three arbitration proceedings. The district court 

entered an order denying Sellers’ petition on the grounds that the 
2

arbitration provisions in the agreements did not indicate that BKV 

had consented in advance to consolidate the separate arbitration 

proceedings. 

¶ 4 Sellers appealed the district court’s order. Sellers assert that 

this court has jurisdiction over this appeal under section 

13-22-228(1)(f), C.R.S. 2020, and C.A.R. 1(a)(1). BKV moved to 

dismiss the appeal on jurisdictional grounds. A motions division of 

this court deferred a decision on BKV’s motion until Sellers and 

BKV had fully briefed the issue. 

II. Discussion

A. An Order Denying a Motion to Consolidate Arbitration 

Proceedings Is Not One of the Two Pre-Award Arbitration 

Orders Appealable Pursuant to Section 13-22-228(1) 

¶ 5 Although section 13-4-102, C.R.S. 2020, and C.A.R. 1(a)(1) 

grant this court jurisdiction over the “final judgments” of district 

courts, section 13-22-228(1) of the Act narrowly circumscribes our 

jurisdiction to hear appeals of arbitration-related orders. 

¶ 6 Under section 13-22-228(1), a party may only appeal two types 

of arbitration-related court orders entered before an arbitrator 

enters an award — an order denying a motion to compel arbitration 

and an order granting a motion to stay arbitration. 
3

§ 13-22-228(1)(a) & (b). (Section 13-22-228(1) also authorizes 

appeals of orders confirming or denying confirmation of an award,

modifying or correcting an award, vacating an award without 

directing a rehearing, and a final judgment entered pursuant to the 

Act. § 13-22-228(1)(c), (d), (e) & (f).) A division of this court 

explained that “[t]he specific language of the Act reveals a legislative 

intent to limit appeals to the listed circumstances.” Gergel v. High 

View Homes, L.L.C., 58 P.3d 1132, 1134 (Colo. App. 2002).

¶ 7 Section 13-22-228(1)’s limited grant of appellate jurisdiction is 

consistent with the state’s policy of favoring arbitration “as a

convenient and efficient alternative to resolving disputes by 

litigation.” Vallagio at Inverness Residential Condo. Ass’n v. Metro. 

Homes, Inc., 2015 COA 65, ¶ 13, 412 P.3d 709, 713, aff’d, 2017 CO 

69, ¶ 13, 395 P.3d 788. “In Colorado, arbitration is a favored 

method of dispute resolution. Our constitution, our statutes, and 

our case law all support agreements to arbitrate disputes.” Lane v. 

Urgitus, 145 P.3d 672, 678 (Colo. 2006) (citations omitted). The 

General Assembly adopted the Act “to provide a uniform statutory 

framework for arbitration and to encourage settlement of disputes 
4

through the arbitration process.” Sopko v. Clear Channel Satellite 

Servs., Inc., 151 P.3d 663, 666 (Colo. App. 2006). 

¶ 8 The Act expressly authorizes parties to file specified 

arbitration-related motions in district court, even though the court’s 

rulings on those motions may not be appealable. (We interpret 

Sellers’ “petition” as a motion.) “Not all orders entered by a trial 

court respecting arbitration proceedings are appealable.” Thomas v. 

Farmers Ins. Exch., 857 P.2d 532, 534 (Colo. App. 1993). 

¶ 9 For example, one of the permissible arbitration-related 

motions is a motion for the “consolidation of separate arbitration 

proceedings.” § 13-22-210(1), C.R.S. 2020. The district court “may 

order consolidation . . . as to all or some of the claims if all parties 

in the arbitration proceedings consent” and the court finds that the 

criteria listed in the statute are met. Id. 

¶ 10 But an order denying a motion to consolidate separate 

arbitration proceedings is not appealable because it is not one of 

the pre-award orders listed in section 13-22-228(1). Such orders 

are neither orders denying a motion to compel arbitration nor 

orders granting a motion to stay arbitration, which are appealable 
5

under section 13-22-228(1)(a) and (b). (And, as explained in Part 

II.B below, they are also not appealable “final judgments.”)

¶ 11 “[W]hen the legislature speaks with exactitude, [courts] must 

construe the statute to mean that the inclusion or specification of a 

particular set of conditions necessarily excludes others.” Lunsford 

v. W. States Life Ins., 908 P.2d 79, 84 (Colo. 1995). The precise 

language of section 13-22-228(1) “leaves no room for permitting 

appeals other than those specifically enumerated.” J.P. Meyer 

Trucking & Constr., Inc. v. Colo. Sch. Dists. Self Ins. Pool, 18 P.3d 

198, 202 (Colo. 2001). The omission of orders denying motions to 

consolidate arbitration proceedings from section 13-22-228(1) 

indicates that “the legislature could not have intended” to allow 

appeals of such orders. Beeghly v. Mack, 20 P.3d 610, 613 (Colo. 

2001) (“Under the rule of interpretation expressio unius [est] exclusio 

alterius, the inclusion of certain items implies the exclusion of 

others.”).

¶ 12 Our conclusion is consistent with the case law addressing the 

appealability of other types of pre-award orders not listed in section 

13-22-228(1). For example, “an order compelling arbitration is not 

appealable because it is not denominated as such by the Act.” 
6

Gergel, 58 P.3d at 1135; see Frontier Materials, Inc. v. City of 

Boulder, 663 P.2d 1065, 1066 (Colo. App. 1983) (“Conspicuously 

absent from that list [in the substantially similar predecessor 

statute to 13-22-228(1)] is an order by the court compelling the 

parties to arbitrate.”). 

¶ 13 Courts in other states that have adopted statutes identical to 

section 13-22-228(1) have reached the same conclusion. In St. 

Francis Xavier Hospital v. Ruscon/Abco, the South Carolina Court of 

Appeals refused to hear the appeal of an order denying the 

consolidation of arbitration proceedings because the language of 

that state’s analogue to section 13-22-228(1) “does not expressly 

allow an appeal from an order denying an application to consolidate 

pending arbitration proceedings.” 330 S.E.2d 548, 550 (S.C. Ct. 

App. 1985). The Washington Court of Appeals similarly noted that, 

while the statute “designates specific orders in arbitration actions 

from which an appeal may be taken, . . . an order of consolidation is 

not one of them.” Cummings v. Budget Tank Removal & Env’t Servs. 

LLC, 260 P.3d 220, 224 (Wash. Ct. App. 2011).

¶ 14 Our reading of section 13-22-228(1) is also consistent with the 

policy underlying the Act — to provide a convenient and efficient 
7

alternative to litigation. See Vallagio at Inverness Residential 

Condo. Ass’n, ¶ 13, 412 P.3d at 713. Appeals of district court 

orders denying motions to consolidate separate arbitration 

proceedings would delay the arbitration process and increase the 

parties’ legal expenses. Notably, the only pre-award orders that are 

appealable under section 13-22-228(1) are orders blocking or 

hindering the arbitration process. See § 13-22-228(1)(a) & (b) 

(authorizing appeals of orders denying motions to compel 

arbitration and orders staying arbitration). An order denying a 

motion to consolidate separate arbitration proceedings neither 

blocks nor hinders the arbitration process. Rather, it allows the 

arbitration process to proceed.

¶ 15 For these reasons, we conclude that we lack jurisdiction to 

hear appeals from orders denying a motion to consolidate separate 

arbitration proceedings. “Because this court’s jurisdiction is 

conferred by statute, we cannot expand its scope beyond [its]

legislative grant,” Wilson v. Kennedy, 2020 COA 122, ¶ 6, ___ P.3d 

___, ___, and, therefore, we may not exercise jurisdiction in this 

case. 
8

B. An Order Denying a Motion to Consolidate Arbitration 

Proceedings Is Not a “Final Judgment”

¶ 16 Sellers seek to circumvent the omission of orders denying 

motions to consolidate separate arbitration proceedings from 

section 13-22-228(1) by arguing that the district court’s order is an 

appealable “final judgment” under section 13-22-228(1)(f) and 

C.A.R. 1(a)(1). As noted above, subsections 13-22-228(1)(a) and (b) 

describe with specificity the pre-award orders that may be appealed, 

and an order denying a motion to consolidate separate arbitration 

proceedings is not one of them. 

¶ 17 More fundamentally, an order denying a motion to consolidate 

separate arbitration proceedings is not the equivalent of a “final 

judgment.” “[I]n determining whether a trial court’s order is subject 

to review, the appellate court must consider the substance and not 

the form of the order.” Gergel, 58 P.3d at 1136. Gergel concerned 

an attempt to appeal an order compelling the parties to arbitrate. 

The appellants contended that their motion to stay the arbitration 

proceedings, which the district court denied, was substantively a 

motion for a temporary injunction, as they had labeled it. Id. at 

1135-36. The grant or denial of a temporary injunction is an 
9

appealable order. Id. at 1135. But because the parties’ motion

“requested neither temporary relief nor preservation of the status 

quo,” the division of this court concluded that the district court’s 

denial of the motion was the functional equivalent of an order 

directing arbitration. Id. at 1136. Such an order is not listed in 

section 13-22-228(1) and, thus, is not appealable. Id. 

¶ 18 In contrast to the form and substance of the court’s order 

denying Sellers’ motion to consolidate BKV’s arbitration 

proceedings, an order entering a “final judgment” “finally disposes 

of the particular action and prevents further proceedings . . . .” 

State ex rel. Suthers v. CB Servs. Corp., 252 P.3d 7, 10 (Colo. App. 

2010) (quoting Levine v. Empire Savings & Loan Ass’n, 192 Colo. 

188, 190, 557 P.2d 386, 387 (1976)). In civil cases, our supreme 

court has “consistently held that a ‘final judgment is one which

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

further for the court pronouncing it to do in order to completely 

determine the rights of the parties involved in the proceeding.’” 

Scott v. Scott, 136 P.3d 892, 895 (Colo. 2006) (quoting Harding 

Glass Co. v. Jones, 640 P.2d 1123, 1125 n.2 (Colo. 1982)). 
10

¶ 19 Here, although Sellers’ motion to consolidate was the only 

filing in the underlying case, the district court’s order denying it did 

not “finally dispose[] of the . . . action and prevent[] further 

proceedings.” See Suthers, 252 P.3d at 10. The parties may return 

to the district court before, during, or after the arbitrations by filing 

one of the arbitration-related motions authorized under the Act. 

For example, if one of the Sellers refused to arbitrate, BKV could file 

a motion to compel arbitration under section 13-22-207(1), C.R.S. 

2020, or, if a party found evidence that one of the arbitrators 

engaged in misconduct in connection with the arbitration, that 

party could file a motion to vacate the arbitrator’s award under 

section 13-22-223(1)(b)(III), C.R.S. 2020. The district court’s order 

denying Sellers’ motion to consolidate the arbitration proceedings 

does not prevent any of these further proceedings. 

¶ 20 In any event, a final and appealable judgment will be entered 

in this case only if and when an arbitrator enters an award in one of 

the arbitration proceedings and the district court enters a judgment 

“in conformity therewith.” See § 13-22-225(1), C.R.S. 2020; 

S. Wash. Assocs. v. Flanagan, 859 P.2d 217, 220 (Colo. App. 1992) 

(“The ‘award’ of a panel of arbitrators . . . [was] not . . . a ‘final 
11

judgment.’” Rather, the final judgment in the case was “the 

stipulated order and judgment confirming the arbitration award 

pursuant to the [Act].”); see Mountain Plains Constructors, Inc. v. 

Torrez, 785 P.2d 928, 930-31 (Colo. 1990) (holding that “an order 

denying a motion to compel arbitration may . . . be appealed after 

final judgment”). The language of Mountain Plains Constructors

would make no sense if an order denying a motion to compel 

arbitration could be appealed immediately after the district court 

ruled on a different pre-award motion, such as a motion to 

consolidate separate arbitration proceedings.

¶ 21 Sellers attempt to distinguish Marshwood Associates v. 

Krumbhaar & Holt, Associated Architects, P.A., 451 A.2d 305 (Me. 

1982), and St. Francis Xavier Hospital, the two out-of-state cases 

BKV cites in support of its argument that an order denying 

consolidation is not an appealable final judgment. Both cases held 

that an order denying consolidation of arbitration proceedings does 

not have the effect of a final judgment and is thus not appealable. 

Marshwood Assocs., 451 A.2d at 307; St. Francis Xavier Hosp., 330 

S.E.2d at 550. Sellers contend that these cases are distinguishable 
12

because they interpreted versions of the Act that do not authorize 

trial courts to consolidate arbitration proceedings. 

¶ 22 But Sellers’ argument assumes, contrary to the Act, that every 

ruling on a permitted arbitration-related motion is appealable. As 

explained in Part II.A above, simply because a statute authorizes 

the court to take an action does not make that action appealable. 

¶ 23 Moreover, under Sellers’ reasoning, any pre-award order, even 

if not listed in section 13-22-228(1), would be an appealable final 

judgment. This argument cannot be squared with section 

13-22-228(1)’s meticulous delineation of the only pre-award court 

orders that may be appealed. See § 13-22-228(1)(a) & (b). If any 

pre-award order were a “final judgment,” then section 

13-22-228(1)(a) & (b) would be superfluous; there would be no need 

to specify that an order denying a motion to compel arbitration and 

an order granting a motion to stay arbitration are appealable. We 

do not interpret statutes to render the language in a subsection 

superfluous. People v. Burnett, 2019 CO 2, ¶ 21, 432 P.3d 617, 

622.

¶ 24 It is significant that section 13-22-228(1) places the two 

appealable pre-award orders in separate subsections from “final 
13

judgments.” Because they are listed in different subsections from 

“final judgments,” an order denying a motion to compel arbitration 

and an order granting a motion to stay arbitration cannot be “final 

judgments.” And it would make no sense to read section 

13-22-228(1) to mean that, while these two pre-award orders are 

not “final judgments,” all other types of pre-award orders may be 

deemed “final judgments.” 

¶ 25 In sum, we only have jurisdiction to “review interlocutory 

orders where specifically authorized by statute or rule.” Gergel, 58 

P.3d at 1134 (emphasis added). “We have ‘no authority to expand 

[our] appellate jurisdiction’” beyond that granted by the General 

Assembly and “cannot ‘modify the jurisdiction granted [us] by 

statute.’” Wilson, ¶ 6, ___ P.3d at ___ (alterations in original) 

(quoting People in Interest of L.R.B., 2019 COA 85, ¶ 15, ___ P.3d 

___, ___). Under the plain language of section 13-22-228(1), we 

have no jurisdiction to review an order denying a motion to 

consolidate arbitration proceedings. 

III. Conclusion

¶ 26 The appeal is dismissed. 

JUDGE RICHMAN and JUDGE PAWAR concur.