COLORADO COURT OF APPEALS 2017COA78 

Court of Appeals No. 16CA1005 

Garfield County District Court No. 13CV30316 

Honorable John F. Neiley, Judge 

Erika Galindo, individually and as parent, guardian, and next friend of Ariana 

Guadalupe Galindo, a minor child; and Jose Galindo, individually and as 

parent, guardian, and next friend of Ariana Guadalupe Galindo, a minor child, 

Plaintiffs-Appellants, 

v. 

Valley View Association, d/b/a/ Valley View Hospital, 

Defendant-Appellee. 

APPEAL DISMISSED 

Division IV 

Opinion by JUDGE J. JONES 

Graham and Welling, JJ., concur 

Announced June 1, 2017 

Law Office of Stan Epshtein, Stan Epshtein, John Bellinger, Denver, Colorado, 

for Plaintiffs-Appellants 

Jaudon & Avery LLP, David H. Yun, Jared R. Ellis, Denver, Colorado, for 

Defendant-Appellee 

The Law Office of Natalie L. Decker, LLC, Natalie L. Decker, Littleton, Colorado; 

Michael J. Norton, Greenwood Village, Colorado, for Amicus Curiae Colorado 

Family Action 
1 

¶ 1 Plaintiffs, Erika and Jose Galindo, are the parents of Ariana 

Guadalupe Galindo, who died in utero. They have brought claims 

against Valley View Association, doing business as Valley View 

Hospital (the hospital), seeking damages on behalf of themselves 

and Ariana’s estate. They allege that medical personnel at the 

hospital acted negligently in diagnosing and treating Mrs. Galindo 

when she went to the hospital showing signs of a ruptured 

placenta. They further assert that as a result of that negligence, 

Ariana died and they were injured. 

¶ 2 The district court dismissed the claims plaintiffs assert based 

on Ariana’s death and sua sponte certified its order as final under 

C.R.C.P. 54(b). Because we conclude that the district court erred in 

ruling that there was no just reason to delay an appeal of its order, 

we dismiss the appeal. 

I. Additional Background 

¶ 3 Plaintiffs’ complaint asserts causes of action against the 

hospital for negligence on behalf of Mr. Galindo, Mrs. Galindo, and 

Ariana (or her estate); negligent infliction of emotional distress on 

behalf of Mrs. Galindo; loss of consortium on behalf of Mr. Galindo; 

and wrongful death on behalf of Mr. and Mrs. Galindo. It also 
2 

asserts that damages can be awarded for Ariana’s pre-death 

injuries under the survival statute, section 13-20-101, C.R.S. 

2016.1 

¶ 4 Shortly before trial, the district court ordered the parties to 

brief the issue whether an unborn fetus (who was not subsequently 

born alive) is a “person” within the meaning of the wrongful death 

and survival statutes. (The wrongful death statute, section 13-21-

202, C.R.S. 2016, and the survival statute apply in the event of the 

“death of a person.”)2 

 

1 A wrongful death claim based on negligence in causing the death 

of another may be brought by certain statutorily identified 

individuals to recover damages those individuals incurred as a 

result of the other’s death. §§ 13-21-201 to -204, C.R.S. 2016. In 

contrast, the survival statute, section 13-20-101, C.R.S. 2016, 

allows an action on behalf of a deceased person’s estate for 

damages that person incurred prior to death; it provides that a 

cause of action that accrued prior to death is not extinguished upon 

the person’s death. See Espinoza v. O’Dell, 633 P.2d 455, 462-66 

(Colo. 1981) (explaining how the wrongful death and survival 

statutes operate); Gonzales v. Mascarenas, 190 P.3d 826, 828-29 

(Colo. App. 2008) (same). 

2 The hospital never raised the issue of whether Ariana was a 

“person” within the meaning of the wrongful death and survival 

statutes. Though we don’t approve of the court’s decision to raise 

the issue on its own, the case is nevertheless before us. 
3 

¶ 5 The court postponed the trial. After considering the parties’ 

briefs, the court ruled that Ariana was not a “person” within the 

meaning of the statutes, and it dismissed the wrongful death claim 

and the negligence claim brought on behalf of Ariana’s estate.3 At 

the end of the order, the court wrote: “There being no just reason 

for delay, final judgment is hereby entered in favor of [the hospital] 

and against the Plaintiffs on both claims pursuant to C.R.C.P. 

54(b).” The court didn’t explain why there was no just reason for 

delay. 

¶ 6 Plaintiffs appealed the order. After the appeal was fully 

briefed, the clerk assigned the case to this division. The division 

then ordered the parties to brief the issue whether the district court 

had properly certified the order as final under Rule 54(b), directing 

them specifically to explain why there was no just reason to delay 

an appeal until the entire case has been resolved, and, even more 

 

3 The court said it was dismissing the wrongful death and survival 

statute claims. But, as discussed, the survival statute does not 

create an independent cause of action; rather, it provides that a 

person’s death does not preclude an action by that person’s estate if 

that person could have brought an action had she survived. § 13-

20-101(1). The effect of the court’s order, therefore, was to dismiss 

the wrongful death claim and the negligence claim that plaintiffs 

have asserted on Ariana’s behalf (or on behalf of her estate). 
4 

specifically, to explain what hardship or injustice would result to 

any party if the appeal is not allowed to proceed. See Allison v. 

Engel, 2017 COA 43, ¶ 1 (to show that there is no just reason for 

delay, it must appear that “a party would experience some hardship 

or injustice through delay that could be alleviated only by an 

immediate appeal”). Having considered the parties’ supplemental 

briefs and the record, we conclude that the district court’s 

conclusory ruling that there is no just reason for delay is 

unsupported by the record or law. 

II. The Requirements of Rule 54(b) 

¶ 7 Rule 54(b) creates an exception to the rule that an appellate 

court has jurisdiction only over appeals from final judgments. 

Harding Glass Co. v. Jones, 640 P.2d 1123, 1125, 1126 (Colo. 

1982). But that exception is quite limited, and it must be 

construed consistently with the historical policy against allowing 

piecemeal appeals. Allison, ¶ 31. 

¶ 8 A court correctly certifies a ruling as final under the rule only 

if (1) it is on an entire claim for relief; (2) it ultimately disposes of 

the claim; and (3) the court determines expressly that there is no 

just reason to delay an appeal on the ruling. Lytle v. Kite, 728 P.2d 
5 

305, 308 (Colo. 1986); Harding Glass, 640 P.2d at 1125; Allison, 

¶ 24. 

¶ 9 In this case, we assume that the ruling satisfies the first two 

parts of this test.4 We focus on part three. 

III. Standard of Review — No Just Reason for Delay 

¶ 10 Ordinarily, we review a district court’s determination that 

there is no just reason for delay for an abuse of discretion. Lytle, 

728 P.2d at 308, 309; Allison, ¶ 25. We do so because determining 

whether there is no just reason for delay requires considering 

interests of judicial administration and equitable factors, see 

Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 8 (1980); Lytle, 

728 P.2d at 309, and “the district court is ‘most likely to be familiar 

with the case and with any justifiable reasons for delay.’” Allison, 

 

4 But this assumption is questionable. We don’t just look at the 

labels in a party’s pleading. Claims are separate “when more than 

one recovery is possible and when a judgment on one claim would 

not bar a judgment on the other claims.” Richmond Am. Homes of 

Colo., Inc. v. Steel Floors, LLC, 187 P.3d 1199, 1203 (Colo. App. 

2008). The negligence claim and the wrongful death claim are 

premised on the same alleged negligence. So if the fact finder 

determines that the hospital employees were not negligent, and 

finds against Mrs. Galindo on that basis, that would seem to bar 

any claim based on Ariana’s death or on behalf of Ariana’s estate. 

See Argus Real Estate, Inc. v. E-470 Pub. Highway Auth., 109 P.3d 

604, 608 (Colo. 2005) (claim preclusion); Bebo Constr. Co. v. Mattox 

& O’Brien, P.C., 990 P.2d 78, 84-85 (Colo. 1999) (issue preclusion). 
6 

¶ 25 (quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437 

(1956)).5 

¶ 11 Our deference to the district court’s determination therefore 

depends on whether we know the court’s reasons, so it’s important 

that the court not merely parrot the language of the rule (“no just 

reason for delay”), but clearly explain its reasoning. Still, we do not 

say that a court’s failure to do that is some sort of jurisdictional 

defect. It isn’t. But unless the court explains its reasoning, or the 

reasons are otherwise obvious from the record, “any deference we 

 

5 Relevant considerations include 

(1)the relationship between the adjudicated 

and unadjudicated claims; (2) the possibility 

that the need for review might or might not be 

mooted by future developments in the district 

court; (3) the possibility that the reviewing 

court might be obliged to consider the same 

issue a second time; (4) the presence or 

absence of a claim or counterclaim which 

could result in set-off against the judgment 

sought to be made final; [and] (5) 

miscellaneous factors such as delay, economic 

and solvency considerations, shortening the 

time of trial, frivolity of competing claims, 

expense, and the like. 

Allis-Chalmers Corp. v. Phila. Elec. Co., 521 F.2d 360, 364 (3d Cir. 

1975) (footnotes omitted), abrogation on other grounds recognized by 

Elliott v. Archdiocese of N.Y., 682 F.3d 213, 221 (3d Cir. 2012); see 

also Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 8 (1980). 
7 

might otherwise accord the 54(b) certification decision will be 

nullified.” Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d 162, 

166 (11th Cir. 1997); accord, e.g., Braswell Shipyards, Inc. v. Beazer 

E., Inc., 2 F.3d 1331, 1336 (4th Cir. 1993); Consol. Rail Corp. v. Fore 

River Ry. Co., 861 F.2d 322, 325-26 (1st Cir. 1988); Solomon v. 

Aetna Life Ins. Co., 782 F.2d 58, 61 (6th Cir. 1986); see also 10 

James Wm. Moore et al., Moore’s Federal Practice § 54.23[2], at 54-

68 to 54-69 (3d ed. 2015); 10 Charles Alan Wright, Arthur R. Miller 

& Mary Kay Kane, Federal Practice and Procedure § 2659, at 140-44 

(4th ed. 2014).6 

¶ 12 In this case, the district court didn’t give any explanation as to 

why it was certifying the ruling, much less any explanation as to 

why there was no just reason for delay. The record doesn’t 

otherwise reveal some obvious explanation.7 Thus, we will carefully 

 

6 We consider persuasive case law applying the federal counterpart 

to C.R.C.P. 54(b) because the federal rule and the state rule are 

virtually identical. Harding Glass Co. v. Jones, 640 P.2d 1123, 

1126 n.5 (Colo. 1981); Allison v. Engel, 2017 COA 43, ¶ 25 n.3. 

7 Sometimes the reasons may be obvious based on how claims are 

pleaded. And oftentimes the reasons for finding that there is no 

just reason for delay may be set forth in a party’s motion requesting 

certification, and an appellate court can assume that the district 

court relied on those reasons. See Clos v. Corr. Corp. of Am., 597 
8 

scrutinize the district court’s decision without according it 

deference. 

IV. Analysis — No Just Reason for Delay 

¶ 13 The hospital concedes that the district court improperly 

certified the ruling. It gleans from the court’s ruling and the court’s 

decision to stay the proceedings pending this appeal that the court 

sought to avoid multiple trials, and it recognizes that Allison holds 

that that reason is “plainly insufficient to justify certification 

because the same could be said about any case involving multiple 

claims or parties as to which a dispositive ruling is entered on one 

claim, or as to one party, before trial.” Allison, ¶ 40. 

¶ 14 Plaintiffs, however, try to justify the court’s certification in four 

ways. 

¶ 15 First, they argue that unlike the situation in Harding Glass, 

the claims the court dismissed in this case are “entire stand-alone 

 

F.3d 925, 929 (8th Cir. 2010); see also Huggins v. FedEx Ground 

Package Sys., Inc., 566 F.3d 771, 774 (8th Cir. 2009) (“In some 

cases, a sufficient reason for Rule 54(b) certification may be evident 

from the record, even though the court did not explain its 

reasoning.”); Bldg. Indus. Ass’n of Superior Cal. v. Babbitt, 161 F.3d 

740, 744 (D.C. Cir. 1998) (failure to give reasons may not be a 

problem where the court’s reasoning is discernable from other parts 

of the record). But in this case, no party moved for certification. 
9 

claims.” But that goes mainly to the first two parts of the Rule 

54(b) certification test, not the issue whether there is no just reason 

for delay.8

¶ 16 Second, and similarly, plaintiffs argue that this case is not like 

Allison, where the court had dismissed one counterclaim while 

various claims and counterclaims remained pending. That’s true, 

but the difference is merely one of degree, not kind. That this case 

involves dismissal of a greater percentage of claims says nothing 

about whether there is no just reason for delay, or even more 

specifically about whether any party will suffer hardship or injustice 

unless this appeal proceeds. 

¶ 17 Third, plaintiffs assert that this appeal involves “an issue of 

first impression” that we “will inevitably have to address.” Many 

cases, however, involve issues of first impression. Plaintiffs haven’t 

cited any authority for the proposition that the presence of such an 

issue justifies Rule 54(b) certification, and we haven’t found any. 

See Braswell Shipyards, 2 F.3d at 1336 (deeming that reason 

 

8 As discussed in footnote 4 above, it is not at all clear that the 

dismissed claims are truly “stand-alone claims.” 
10 

insufficient and dismissing the appeal).9 And as for whether we will 

“inevitably” have to address the issue, again the same could be said 

about issues in most any multiple-claim or multiple-party case. 

¶ 18 Moreover, the assumption that we will have to decide the 

“person” issue at some point in this case may prove incorrect. If a 

fact finder determines that the hospital wasn’t negligent, and that 

finding is affirmed on appeal, that would be an independent basis 

for affirming the judgment on the wrongful death claim and the 

negligence claim brought on behalf of Ariana’s estate pursuant to 

the survival statute. Because all of the claims are premised on 

exactly the same allegations of negligence, the doctrines of claim 

and issue preclusion would thus bar relitigation of the matter of the 

hospital’s negligence, even if we decided the “person” issue 

differently. See Argus Real Estate, Inc. v. E-470 Pub. Highway Auth., 

109 P.3d 604, 608 (Colo. 2005) (claim preclusion); Bebo Constr. Co. 

v. Mattox & O’Brien, P.C., 990 P.2d 78, 84-85 (Colo. 1999) (issue 

 

9 That the case involves a matter of first impression is relevant to 

whether the ruling would be appropriate for an interlocutory appeal 

under C.A.R. 4.2. See C.A.R. 4.2(b)(2); Braswell Shipyards, Inc. v. 

Beazer E., Inc., 2 F.3d 1331, 1336 n.4 (4th Cir. 1993) (so reasoning 

in light of the federal statutory counterpart to C.A.R. 4.2). 
11 

preclusion).10 In any event, the fact that we may be called on to 

decide the issue at some point doesn’t mean that any party will 

suffer hardship or injustice if we don’t decide it now. 

¶ 19 Fourth, plaintiffs assert in purely conclusory fashion that 

dismissing the appeal will be “harmful to the parties” and “the 

justice system as a whole.” We don’t see how. Requiring all issues 

in the case to be resolved before an appeal in no way hinders any 

party’s access to justice. Rather, it promotes such access in a more 

efficient fashion. 

¶ 20 The district court’s ruling is inappropriate for certification 

under Rule 54(b) for the added reason that the adjudicated and 

unadjudicated claims are closely interrelated. See Curtiss-Wright, 

446 U.S. at 10 (a court should consider “the interrelationship of the 

claims so as to prevent piecemeal appeals in cases which should be 

reviewed only as single units”); Ebrahimi, 114 F.3d at 167; Braswell 

Shipyards, 2 F.3d at 1337; Consol. Rail Corp., 861 F.2d at 326; 

Solomon, 782 F.2d at 62; see also 10 Moore’s Federal Practice

§ 54.23[1][a]; 10 Federal Practice and Procedure § 2659, at 108-10. 

The operative facts of all of the claims are the same. Mr. and Mrs. 

 

10 Also, the parties could settle the case. 
12 

Galindo remain parties to the unadjudicated claims. See Consol. 

Rail Corp., 861 F.2d at 326 (“Application of Rule 54(b) is particularly 

inappropriate ‘when the contestants on appeal remain, 

simultaneously, contestants below.’” (quoting Spiegel v. Trs. of Tufts 

Coll., 843 F.2d 38, 44 (1st Cir. 1988))). And, as discussed, the key 

issue common to all the claims is whether the hospital was 

negligent. So while the dismissed claims may be separate from the 

other claims asserted by Mr. and Mrs. Galindo individually, all the 

claims are so closely interrelated that allowing piecemeal appeals 

would be counterproductive. Cf. Clark v. Baka, 593 F.3d 712 (8th 

Cir. 2010) (in action seeking damages for injuries caused to child 

during birth at hospital, district court improperly certified judgment 

in favor of one defendant, a hospital management company, where 

claims against the remaining health care providers arose out of the 

same facts). 

V. Conclusion 

¶ 21 The appeal is dismissed. 

JUDGE GRAHAM and JUDGE WELLING concur.