dissenting.
Because, in my view, the November 18, 2002 order was a final judgment when entered, proponent's notice of appeal is untimely. Hence I would dismiss the appeal, and therefore respectfully dissent from part I of the majority opinion.
Stillings v. Davis, 158 Colo. 308, 810, 406 P.2d 337, 338 (1965), defines the term "final judgment" as "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." Hence, generally, an entire case must be resolved by a final judgment before an appeal can or must be brought. Section 13-4-102(1), C.R.S.2004; Pham v. State Farm Mut. Auto. Ins. Co., 70 P.3d 567 (Colo.App.2003).
Ordinarily, under CR.C.P. 54, an order that adjudicates fewer than all claims or the rights and Habilities of fewer than all parties is not final, but remains interlocutory and thus not subject to appeal absent an express certification of finality by the trial court under C.R.C.P. 54(b). In probate cases, however, the requirement for resolution of the entire case as a condition of finality makes little sense. As the court stated in In re Estate of Cook, 245 So.2d 694, 695 (Fla.Dist.Ct.App.1971):
It is apparent upon reflection that probate proceedings differ from ordinary litigation in that the rights of outside parties are from time to time determined and orders entered in the course of administration result in payment, or the necessity for filing suit, whereas the ordinary action involves the same parties throughout and a single appeal from final judgment is appropriate.
Hence, an entire probate case need not be concluded before an order is final for appellate purposes. See In re Estate of Dodge, 685 P.2d 260 (Colo.App.1984)(order constituted a complete determination of the rights of the three parties as to the homestead exemp*518tion and was therefore an appealable final judgment).
The Colorado Probate Code furnishes minimal guidance as to which probate court orders are deemed final for purposes of appellate review. See § 15-12-107, C.R.S.2004 {unless supervised administration is involved, each proceeding before the court is independent of any other proceeding involving the same estate; proceedings for probate of wills may be combined with proceedings for appointment of personal representatives; a proceeding for appointment of a personal representative is concluded by an order making or declining the appointment); § 15-12-412, C.R.S.2004 (a formal testacy order is final as to all persons); In re Estate of Dodge, supra. Therefore, that determination is made on a case-by-case basis. In re Estate of Binford v. Gibson, 889 P.2d 508 (Colo.App.1992); In re Estate of Swanson, 98 Mich.App. 347, 296 N.W.2d 256 (1980).
In probate cases, "[the test for determining finality is whether an order disposes of and is conclusive of the controverted claim for which that part of the proceeding was brought." See Estate of Binford v. Gibson, supra, 839 P.2d at 510. If, on the one hand, the order merely leads to further hearings on the same issue, it is interlocutory, and no appeal can or must be commenced. Indeed, such an order cannot be appealed, absent certification under C.R.C.P. 54(b). If, on the other hand, additional hearings are not required, the order is final and appealable, and hence the time within which an appeal must be commenced begins to run, even though other aspects of the administration of the estate remain for disposition. See Estate of Binford v. Gibson, supra.
Here, the probate court's November 18, 2002 order completely determined the issue of decedent's legal capacity to execute the second codicil, which purported to exercise the power of appointment, and was conclusive of that controverted claim. The order did not merely lead to further hearings on the same issue. Indeed, no additional hearings were required. Hence, I conclude that the order was final and appealable on that date even though proponent's request to be appointed personal representative and other aspects of the administration of the estate remained for disposition. Because the order was final and appealable on November 18, 2002, proponent's notice of appeal, filed on March 28, 20083, was well in excess of the forty-five days provided for in C.A.R. 4(a). Hence, it was untimely, and I would therefore dismiss the appeal for lack of jurisdiction as to that November order.
I note that the parties and the probate court were under the impression that C.R.C.P. 54 governed the finality of the order for purposes of appeal. Indeed, the court's refusal to certify the November 18 order as final under C.R.C.P. 54(b) is an indication of its belief that proponent could not appeal that order. In ordinary civil cases, that determination would be correct. However, this is a probate proceeding, and even though § 15-10-804, C.R.S$.2004, provides that the Colorado Rules of Civil Procedure govern formal proceedings under the Probate Code, including appellate review, I perceive that Estate of Binford v. Gibson, supra, and In re Estate of Dodge, supra, govern finality here, not C.R.C.P. 54.
The majority reasons that proponent raised two issues in the probate court and that the November 18, 2002 order adjudicated fewer than all his pending claims in the proceedings; hence it did not constitute a final judgment. However, I interpret the phrase "controverted claim for which that part of the proceeding was brought" employed in Estate of Binford to mean each discrete controverted issue that involves substantial rights of the parties. See Estate of Wright, 676 S.W.2d 161 (Tex.App.1984). Because the effect of the second codicil was to exercise a power of appointment that would have placed assets under proponent's control and direction rather than under objector's, it involved a substantial right and was itself an issue discrete from the issue concerning appointment of the personal representative. See In re Estate of Ove, 114 Colo. 286, 163 P.2d 651 (1945)(collecting cases determining that various probate court orders were final and thus subject to appellate review); In re Estate - of - Franchs, 722 P2d - 422 (Colo.App.1986){order determining issue of statutory authority or qualification of a party *519to be personal representative is final and appealable).
Accordingly, I would hold that C.R.C.P. 54 is not applicable in this case to render the November 18 order interlocutory. While I acknowledge that this resolution would present a trap for the unwary, the law regarding this issue has been clearly settled since, at the latest, 1992, when Estate of Binford was decided. See generally Leonard P. Plank & Anne Whalen Gill, Colorado Appellate Law and Practice § 4.17 Probate Proceedings (1999).
In view of this determination, I would hold that we have no jurisdiction to review the merits of proponent's contentions concerning the court's resolution of decedent's legal capacity to exercise the power of appointment. Accordingly, I would dismiss the appeal with prejudice and, in light of that conclusion, would not reach the merits as the majority does in part II of the opinion.