dissenting:
I respectfully dissent from the majority’s opinion which holds that the trial court’s order and findings should be vacated because this appeal became moot due to Fu-lenwider’s compliance with the trial court’s order. Because Fulenwider did not pursue its C.R.C.P. 54(b) appeal of the dissolution order, the findings of the trial court are entitled to preclusive effect to the extent that they are relevant to the remaining claims. Accordingly, I would reverse the judgment of the court of appeals.
I.
The majority cites United States v. Munsingwear, 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950), for the usual rule to be followed by appellate courts when a case becomes moot on appeal. According to the majority, the appeal is to be dismissed and the trial court judgment vacated unless the appellate court finds that the appellant mooted the appeal to “deliberately avoid the appellate process in order to obtain a vacation of the lower court’s judgment.” Maj. op. at 428. Having adopted Munsing-wear, the majority reviews numerous cases which have provided exceptions to the Munsingwear rule, attempts to distinguish these exceptions from the facts at hand, and holds that the Munsingwear rule is appropriate in this case. I disagree.
A.
I view Munsingwear as of questionable value. It has become so riddled with exceptions that it can hardly be characterized as a rule. See 13A C. Wright, A. Miller, E. Cooper, Federal Practice and Procedure § 3533.10 (2d ed. 1984 and 1990 Supp.) (discusses numerous exceptions to Munsing-wear). The fact that so many decisions written after Munsingwear, including later decisions by the Supreme Court itself, have created various exceptions to Munsing-wear reflects its analytical weakness and makes it very difficult to apply. In my view, we should not follow Munsingwear. The general rule ought to be that the trial court’s judgment stands if, for whatever reason, a case becomes moot on appeal. Such a rule would be easy to apply and the exceptional case could be handled on remand by the trial court which would apply the normal rules allowing a judgment to be set aside. See C.R.C.P. 60(b). This approach would put the fact finding in the trial court where it belongs and would avoid placing an appellate court in the impossible position of determining, without an evidentiary hearing, the appellant’s motive for abandoning its appeal.
B.
Even taking Munsingwear as the rule, the decision of the court of appeals should be reversed. Munsingwear applies only when the appeal becomes moot through “happenstance” and mootness here occurred because of Fulenwider’s actions, not because of happenstance. Thus, Munsing-wear, by its own terms, does not apply to this case. Further, I disagree that the cases cited by the majority as exceptions to Munsingwear are easily distinguished. In my view, the reasoning of these cases supports the conclusion that the trial court judgment should not be vacated.
The majority cites United States v. Garde, 848 F.2d 1307 (D.C.Cir.1988), Constangy, Brooks & Smith v. NLRB, 851 F.2d 839 (6th Cir.1988), and Wisconsin v. Baker, 698 F.2d 1323 (7th Cir.1983), for the proposition that an exception to Munsing-wear applies when the losing party deliberately moots the question on appeal so as to destroy the preclusive effect of the judgment below. From a review of these cases, I do not find that the holdings depend on the appellant's illicit motives, and I do not discern that the courts have distinguished between appellants who simply have mooted an appeal voluntarily and appellants who have mooted an appeal voluntarily with the intent to manipulate the appellate process. Rather, I find these cases to be *433factually similar to the case at hand and to provide an analytically sound basis for not applying Munsingwear to this case.
In Constangy, a law firm brought a Freedom of Information Act action against the National Labor Relations Board (NLRB) for production of certain documents. The NLRB was ordered to produce the records and it appealed. The Sixth Circuit held that, when the appeal became moot because the NLRB complied in toto with the district court’s production order, it would be inappropriate to vacate the district court’s order in light of the law firm’s motion for attorney fees pending before the district court. 851 F.2d at 842. In so holding, the Sixth Circuit relied on Karcher v. May, 484 U.S. 72, 108 S.Ct. 388, 98 L.Ed.2d 327 (1987), as providing an exception to Munsingwear when mootness was due to failure of the proper party to pursue an appeal. Id. The majority rejects Karcher because, as the majority points out at maj. op. p. 428, fn. 4, Karcher is based on jurisdictional principles rather than mootness. However, Karcher has been cited in numerous cases for the principle that the Munsingwear rule is not applicable when the controversy did not become moot due to happenstance but rather when a litigant is responsible for rendering its case moot. See Allard v. DeLorean, 884 F.2d 464, 467 (9th Cir.1989); United States v. Garde, 848 F.2d 1307, 1311; Constangy, 851 F.2d 839, 842. Karcher plainly has been extended beyond its facts and its analysis should apply to the case now before us.
Similarly, in Garde, the Nuclear Regulatory Commission (NRC) appealed the district court’s refusal to enforce a subpoena requesting information on safety problems and the names of certain whistleblowers. However, pending appeal, the NRC complied with the district court’s alternate procedure for obtaining the information. The court of appeals refused to vacate the lower court judgment to prevent the NRC from gaining an unfair advantage by complying with the district court’s order so as to moot the appeal. The court asserted “[t]he distinction between litigants who are and are not responsible for the circumstances that render the case moot is important.” Garde, 848 F.2d at 1311.
In Wisconsin v. Baker, the Seventh Circuit held that “[cjircumstances beyond defendants’ control have not prevented them from exercising their right of appeal from the judgment below.” Id., 698 F.2d at 1330. The court further found that the defendants exercised that right by filing a notice of appeal and later voluntarily attempted to waive the sovereign immunity defense in “the apparent hope of escaping the preclusive effect of the district court’s rejection of that defense.” Id. Although the court noted that the appellant’s voluntary attempt to waive its already litigated defense may have been for manipulative reasons, the holding in Baker was not based on this distinction. Rather, its analysis is applicable to this case and encourages an exception to the Munsingwear rule when a party voluntarily moots the appeal. The Baker court compared the case before it to the situation in which the losing party simply chose not to appeal or abandoned its appeal. Observing that the judgment would stand in those cases, the court stated:
[w]e see no reason why it should be otherwise when defendants file a notice of appeal and then purport to waive a defense advanced and thoroughly litigated before the district court. Defendants gambled when they chose to litigate the sovereign immunity issue in district court and they lost. Just as winning litigants may not bolster the preclusive effect of final judgments by deliberately mooting questions on appeal, so losing litigants may not destroy their preclusive effect by adopting the same ploy. Whether sovereign immunity bars this suit was a live issue when the district court decided it, and defendants’ change of heart on appeal has not effected a loss of life below.
Id., 698 F.2d at 1330-31 (citations omitted).
Several other cases cited by the majority lend support for the view that Munsing-wear is not applicable when a party has changed its position causing an appeal to be mooted. The court in Kitlutsisti v. *434Arco Alaska, Inc., 782 F.2d 800 (9th Cir. 1986), noted that an exception to Munsing-wear was not applicable when the mooted appeal did not result from the appellants’ changed positions. Also, in Northwest Pipeline Corp. v. FERC, 863 F.2d 73 (D.C. Cir.1988), the court applied the Munsing-wear rule because the appellant had continued to oppose a finding of mootness by the court of appeals and had sought a resolution of the case on the merits. Accordingly, the court placed emphasis on the fact that the appellant was not responsible for rendering the case moot. See also Center for Science in the Public Interest v. Regan, 727 F.2d 1161, 1166 (D.C.Cir.1984) (“When the appellant, here the Department [of Treasury], causes the dismissal of its own appeal, it ‘is in no position to complain that [its] right of review of an adverse lower court decision has been lost,’ ” (citing Ringsby Truck Lines, Inc. v. Western Conference of Teamsters, 686 F.2d 720, 722 (9th Cir.1982))).
The majority asserts that Fulenwider’s actions do not fall within the cases creating an exception to Munsingwear. The majority states that “it is clear from the record that Fulenwider did not deliberately manipulate the appellate process in order to obtain a vacation of the lower court’s judgment. Rather, Fulenwider’s agreement to the dissolution of Box Elder was made solely in response to time constraints imposed by the tax laws.” Maj. op., p. 428. By reaching this conclusion, the majority engages in appellate fact finding which I find inappropriate. Contrary to the majority's implication, there is no “record” for this court to scrutinize regarding Fulenwider’s motives for mooting the appeal. The majority simply accepts Fulenwider’s assertion that it was motivated by tax considerations. Having accepted this assertion, the majority then finds Fulenwider’s motive to be acceptable and not an attempt to “deliberately manipulate the appellate process.” I do not know how an appellate court can probe a party’s motives and decide whether an asserted motive might be a sham. I think the majority may have constructed a test which is impossible to apply. If so, a trial court’s judgment will always be set aside when a case becomes moot on appeal as long as the appellant alleges some motive for its actions other than a deliberate attempt to moot the appeal.
Further, despite Fulenwider’s alleged reasons for complying with the dissolution orders, the fact remains that Fulenwider fully defended the dissolution claim and then changed its position pending appeal. The trial court, having the benefit of a five-day trial with extensive testimony, made detailed evidentiary findings. For whatever reason, Fulenwider abandoned its appeal. Although tax considerations may have controlled the parties’ actions in connection with the dissolution issue, such tax considerations were not responsible for mooting the appeal. Rather, potential tax consequences were factors which the parties could consider in planning their litigation strategy.
Accordingly, I read Garde, Constangy, and Baker as similar to the facts in this ease and I do not distinguish them on the grounds that the appellants in those cases mooted the appeal for a manipulative or strategic purpose. Rather, I find that the more persuasive distinction under the Mun-singwear rule lies between litigants who are and are not responsible for rendering their case moot at the appellate level. See Ringsby Truck Lines, Inc. v. Western Conference of Teamsters, 686 F.2d at 721; see also Munsingwear, 340 U.S. at 40, 71 S.Ct. at 107 (if a case is mooted on appeal, the appellate court should vacate the judgment below and remand with directions to dismiss; this practice “clears the path for future relitigation of the issues between the parties and eliminates a judgment, review of which was prevented through happenstance” (emphasis added)). Thus, I would conclude that the principles of Mun-singwear are inapplicable in this 54(b) appeal where the issues appealed are mooted due to Fulenwider’s voluntary decision not to pursue its appeal, and when there are remaining issues to be tried.
II.
I also find that the majority’s opinion is inconsistent with the character of C.R.C.P. *43554(b) appeals when the majority relies in part on the principles of equity rather than the application of res judicata1 which is inherent in 54(b) appeals. In my opinion, the determination of whether the trial court’s findings in the dissolution claim should be preclusive as to the remaining claims is dependent on the legal doctrine surrounding 54(b) appeals. The basic purpose of 54(b) is to avoid the potential injustice of a delay in entering judgment on a distinctively separate claim or as to fewer than all the parties by making an immediate appeal available prior to the final adjudication of the entire case. 10 C. Wright, A. Miller, and M. Kane, Federal Practice and Procedure § 2654 (2d ed. 1983). An appeal following a 54(b) order is the exception rather than the rule and “the limitations on its availability mean that there is relatively little chance that the appellate court will be forced to consider the same issues on successive appeals.” Id. at p. 38. Furthermore, Rule 54(b) orders are viewed as final judgments to which the principles of res judicata apply. Id., § 2661, at p. 128.
The majority implies that equitable considerations in this case require an exception to the general rule of res judicata. I see no such injustice. In my opinion, we should not waive the application of res judicata just because the parties failed to realize and properly assess the implications of a 54(b) appeal.
There are two sides to the equity argument. Munsingwear and the eases creating exceptions to Munsingwear frequently have emphasized the unfairness which would result to the prevailing party if the trial court’s judgments were vacated and thus “wiped from the books.” See Ringsby, 686 F.2d at 721; Constangy, 851 F.2d at 842; Harrison Western Gory. v. United States, 792 F.2d 1391 (9th Cir.1986) (no “Ringsby problem” here because there is no possibility that the appellants will reliti-gate the issue already decided by the district court); Kitlutsisti, ■ 782 F.2d 800 (Ringsby analysis inapplicable in part because no likelihood that controversy will be renewed). The majority is concerned about the inequities in holding Fulenwider to the unreviewed findings of “self dealing and waste which, if allowed to stand, will effectively determine the outcome of the six remaining claims.” Maj. op. at 430. However, the majority neglects the inequities which would result to Van Schaack by vacating the trial court’s detailed findings of fact and conclusions of law.
The majority dismisses the inequity which will be done to Van Schaack by claiming that Van Schaack has waived its right to assert that the findings are preclu-sive upon the remaining claims. The majority notes that Van Schaack’s legal position has been inconsistent because, prior to Fulenwider’s voluntary dismissal of its appeal, Van Schaack took the position that the trial court’s findings were limited solely to the dissolution issue and would not control the issue of liability. However, the majority fails to mention that Fulenwider, too, switched its position. If Van Schaack somehow is tainted by not maintaining a consistent position, so is Fulenwider. Prior to its compliance with the dissolution order Fulenwider maintained that the findings would be preclusive below. In Fulenwider’s response to Van Schaack’s Motion to Dismiss Consolidated Appeals, Fulenwider stated:
Basic tenants [sic] underlying res judica-ta and collateral estoppel, moreover, dictate that findings of fact cannot be dis*436puted in a subsequent action, even when reached as the result of an erroneous view of the facts, an erroneous application of law, or even when the purpose or subject matter of a subsequent action differs.... Unless the District Court Judge’s findings of fact and conclusions of law regarding the validity of the management agreement, oppressive conduct of the appellants, and corporate waste are redressed by this Court, appel-lees will be entitled to depend upon the District Judge’s findings.
(Citations omitted.)
This, of course, is not the first time we have been confronted with parties who asserted contrary positions in the course of a case. See, e.g., Gramiger v. Crowley, 660 P.2d 1279, 1280, n. 1 (Colo.1983). Here it seems that the parties’ predicament resulted in part from erroneous understandings of the relevant legal principles. The parties questioned the preclusive effect of the court’s findings in the 54(b) appeal and both parties have conveniently changed their positions at various times as to whether res judicata or collateral estoppel would arise from the district court’s order. This fact hardly tips the equities in favor of Fulenwider. Moreover, I do not agree that the record clearly indicates that both parties and the trial court intended to limit the hearing and the court’s findings solely to the dissolution issue. Any such intent was not expressly stated and there is no discussion directly pertaining to the preclusiveness of the court’s findings.
Finally, the majority asserts that the judgment should be vacated, but it notes that the trial court should have discretion to limit the presentation of evidence to that which was not produced before. Although I would hold that once the same parties have litigated the same issue in the same court and in the same adversary posture, the principles of res judicata or issue preclusion apply, there are exceptions to the general rules of issue preclusion and res judicata when justice and fairness require. See Restatement (Second) of Judgments § 28, at pp. 273-274 (1982); 18 C. Wright, A. Miller, M. Cooper, Federal Practice and Procedure § 4416; see also United States v. LaFatch, 565 F.2d 81, 83 (6th Cir.1977) (res judicata may be set aside when its application would result in “manifest injustice,” and would “violate overriding public policy”); Moch v. East Baton Rouge Parish School Bd., 548 F.2d 594, 597 (5th Cir.), cert. denied, 434 U.S. 859, 98 S.Ct. 183, 54 L.Ed.2d 132 (1977). Accordingly, although I would hold that the findings of the trial court are preclusive, Fulenwider might be able to relitigate the issues or provide further evidence if, in the trial court’s opinion, fairness and justice so require. I would leave that decision to the trial court’s sound discretion. I see no reason to vacate the trial court’s judgment.
Accordingly, I dissent.
QUINN and YOLLACK, JJ., join in this dissent.
. The parties, as well as cited authority, have used interchangeably the terms res judicata, collateral estoppel, and issue preclusion. I do not attempt to distinguish the intricacies of these legal principles here. Rather, res judicata in this case generally “deals with the effect of a judgment on the underlying claim or cause of action" and "precludes relitigation of the claims as to either issues of law or fact, if such issues could have been raised and determined.” IB J. Moore, J. Lucas, T. Currier, Moore’s Federal Practice ¶ 0.401 at p. 4 (2d ed. 1988). Collateral estoppel and issue preclusion, on the other hand, are often viewed as a part of the general doctrine of res judicata and deal "with the limits imposed on relitigation by a party to a final judgment, or one in privity with a party, of issues decided adversely to him, when such issues arise in a subsequent litigation on a claim or cause of action not barred by res judicata." Id.