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Denver and Colorado Appeal Lawyer
When receiving an adverse judgment or ruling in state court, a losing party can appeal to a higher, appellate court. The appeals process is significantly different from the trial court process and, in general, is limited to appellate briefing only. Due to the differences in procedures, hiring an appeal attorney that is familiar with appellate law can significantly help in navigating the process. This article discusses the civil appeal process for Denver and Colorado state courts and is oriented towards civil appeal attorneys and individuals navigating the civil appeal process on their own.
General Overview of Colorado’s Appeals System
Most state court systems, Colorado included, allow a litigant one appeal as of right and a second, discretionary appeal after the first appeal. Thus, there is usually one court above the trial court that a party can always appeal to and that court must take and review the appeal. After that appeal, if a party is dissatisfied with the outcome, there is typically a second, higher court the party can then appeal to. However, that second, higher court usually has discretion as to whether or not it wants to take the appeal. If it declines to take the appeal, the first appeal judgment stands.
For civil cases in Colorado state court, there are effectively 3 courts that can have appellate jurisdiction. Their jurisdiction and the appellate route hierarchy are dependent on where the case originated and the type of case that is at issue. There are numerous exceptions as to appellate routes and ways in which the route can be changed depending on the circumstances of the case. In broad strokes, however, the 3 courts that can have appellate jurisdiction over a case are:
– District courts. These courts are the highest-level trial court and most commonly function as trial courts. However, they also set as appeals courts for trial courts or tribunals that are lower than district court. In particular, and by way of example, district courts function as the first appellate court for small claims cases, cases from county court, and cases from municipal court. For cases where district courts sit as an intermediate appellate court, once that appeal is resolved the next step is to appeal to the Colorado Supreme Court which has discretionary review over those case. In other words, where a district court has appellate jurisdiction the appellate court hierarchy skips over the Colorado Court of Appeals and, after district court, goes to the Colorado Supreme Court. See C.R.C.P. 411; C.R.C.P. 519
– The Colorado Court of Appeals. This court is the traditional intermediate appellate court in Colorado and is the first appellate court for cases that were litigated in district court. That is, for cases where the district court functioned as the trial court, the first route of appeal is to the Court of Appeals. The Court of Appeals also has jurisdiction over appeals from the Industrial Claim Appeals Office, which handles unemployment and workers’ compensation cases; and has jurisdiction over dependency and neglect appeals pertaining to child custody decisions. See C.A.R. 3.2; C.A.R. 3.3.
– The Colorado Supreme Court. The highest state court in Colorado is the Colorado Supreme Court and it has final jurisdiction over all appeals. In general, if one is unhappy with the first appellate decision rendered in his or her case, that person would then appeal to the Colorado Supreme Court which can overrule that decision. However, most appeals to the Colorado Supreme Court are discretionary, meaning it is up to the Colorado Supreme Court to take the appeal. If it declines, the lower ruling will stand. Importantly, there are some specific instances where the Colorado Supreme Court has original jurisdiction over an appeal meaning the first appeal is taken directly to the Colorado Supreme Court. The appeal skips over any intermediate appellate courts. Examples of such cases include water court decisions, death sentence cases, and cases where a trial court has declared a statute or municipal ordinance unconstitutional. See C.A.R. 21; C.R.S. § 13-4-102.
Most appeals follow the traditional hierarchy of first going to the Court of Appeal and then, if further review is sought, seeking certiorari with the Colorado Supreme Court. For cases that are in the Court of Appeals or Colorado Supreme Court, the Colorado Rules of Appellate Procedure (“C.A.R.”) govern the process and requirements of filing an appeal, and the procedures of appellate review. This includes specific rules governing the form, content, and length requirements for appellate briefing.
In contrast, for appeals in district court there are usually only minimal procedural and form requirements that apply. Instead of comprehensive format and briefing requirements, like those that exist in the Colorado Rules of Appellate Procedure, for district court appeals the only rule that typically applies is the one specifying the district court has appellate jurisdiction. Such rules usually give only minimal guidance as to how the appeal should procced, often time only specifying the time frame for filing the appeal and the timeline for submitting briefs. Accordingly, the forma and content of appellate briefing in district court is much more free form than traditional appeals.
Structure and Procedures of the Colorado Court of Appeals
The Court of Appeals, as the general intermediate appellate court for the state and first appeal as of right court for most cases in Colorado, handles a significant number of appeals every year. It handles approximately 2,500 cases yearly. There are 22 appointed judges on the Court of Appeals. However, the Court of Appeals can, and does, use retired senior judges to help with the appellate workload on an as needed basis. Thus, the number of judges actually working on appeals in the Court of Appeals exceeds 22. See Colo. Const. Art. VI, § 5(3); C.R.S. § 24-51-1105.
Procedurally, the Court of Appeals reviews appellate cases in divisions of 3 judges meaning that 3 appellate judges are assigned to each case. For each case, these judges, with the assistance of law clerks and court staff, review the briefings, conduct legal research, and author an opinion for each case. Given the volume of cases the Court of Appeals handles, each appellate judge is responsible for authorizing approximately 80 written opinions every year.
The decision process for rendering an opinion in the Court of Appeals begins after all appellate briefs are filed and accepted by the court. At that point, the case is officially at issue and it is then assigned randomly to one of the court’s divisions. Judges rotate divisions every 4 months such that cases filed more than 4 months apart would be very unlikely to have the same judges assigned.
Once a case is assigned to a particular division, the task of authoring an opinion for that case is assigned to one of the judges in that division. That judge then reads the briefs, reviews the record, conducts appropriate research, and drafts a memorandum to the other two judges in the division discussing the case and recommending a disposition for the case. This is called a pre-disposition memorandum.
The other two judges in the division then review the memorandum, conduct their own research, review the record as necessary, and prepare to discuss their thoughts on the case at a later division conference, normally held every 2 weeks. If oral argument is requested or if the judges determine oral argument is necessary where it hasn’t been requested, the memorandum serves as a guidance and preparation for the judges as to what questions to ask after oral argument.
After oral argument has been held, or if oral argument is deemed unnecessary, the division will again discuss the memorandum at their next division conference. The conferences serve as the forum for discussion of the case, to determine whether or not there is consensus by the judges for disposition of the case, and determine who will author any final opinions.
Once the case is deemed ready for disposition, a final opinion is authored and announced as a published or unpublished opinion. Published opinions have precedential value while unpublished opinions do not. Altogether, in the Court of Appeals this overall process, from filing an appeal to disposition of an appeal, takes 6 to 12 months depending on the type of case and complexity of issues in the case.
After an opinion is issued a mandate will issue after 42 days unless subsequent appellate steps, such as petitioning the Colorado Supreme Court for certiorari review, are taken. Once the mandate is issued the opinion is final and jurisdiction is returned to the trial court.
Structure and Procedures of the Colorado Supreme Court
The Colorado Supreme Court is the highest state court in Colorado and, for most appeals, its appellate jurisdiction is discretionary meaning it can decide what appeals to take. The court is currently comprised of 7 justices. However, pursuant to the Colorado Constitution, that number may be enlarged to 9. Colo. Const. Art. VI, § 5(1).
The Colorado Supreme Court holds three terms each year, although, in practice, the court is always in session. Its schedule varies during the year as to when it meets to decide cases and when it holds oral argument. See C.R.S. § 13-2-101.
The Colorado Supreme Court decides appeals en banc, meaning that all justices sit for each case and may participate in each decision. The court does not divide appeals and assign them into different divisions such as the Court of Appeals does.
The Colorado Supreme Court accepts only a fraction of the appeals that are sought for review. Specifically, in 2019 approximately 2000 petitions for certiorari were filed with the Colorado Supreme Court and only 102 were accepted. Thus, roughly speaking, only 5% of appeals submitted to the Colorado Supreme Court are accepted.
If accepted, the time for review is significant. For civil appeals, the Colorado Supreme Court averages approximately 425 days from docketing to oral argument, and 175 days from oral argument to decision. In effect, a civil case is typically pending before the Colorado Supreme Court for 1.65 years before a decision is rendered, a significant amount of time.
Because the Colorado Supreme Court is the highest state court in Colorado, all decisions that the Colorado Supreme Court renders are published and have precedential value. However, denials to take an appeal – that is, denials of a petition for writ of certiorari – are not opinions and, thus, do not have precedential value. C.A.R. 54.
Preserving Issues for Appellate Review in Colorado Courts
For civil cases, in order for an issue to be reviewable on appeal it must have been preserved in the trial court. Preservation simply means that the parties adequately addressed or raised a disputed issue of law or fact to allow an appellate court to address it. There are many different issues of law and fact that come up during the progression of a case with each issue capable of being addressed in different ways. Accordingly, there are many different ways an issue can be properly preserved for review on appeal.
There are no specific requirements or talismanic language necessary to preserve an issue for appeal. Instead, the issue need only be sufficiently raised by the parties and in sufficient detail as to identify what the disputed issue is and allow the trial court a meaningful chance to address it and rule upon it. See McGihon v. Cave, 410 P.3d 647, 652 (Colo. App. 2016).
Issues of law are frequently addressed in the trial court through legal briefing or through oral argument. Accordingly, by their nature, such issues are automatically raised with the trial court in sufficient detail as to allow the trial court a meaningful opportunity to address it. Thus, most issues of law addressed and raised in the trial court are preserved for appellate review simply through the normal case filings and case procedures.
In contrast, other aspects of trial court proceedings that are not typically addressed by written briefing will have to have the issue preserved in another manner. Most frequently this would occur through oral objections during in-person proceedings, such as opening and closing arguments during trial, admitting evidence during trial, and giving jury instructions to the jury. Importantly, where an objection is the basis for preserving an issue for appeal, the objection must be made in sufficient detail as to give a basis for the trial court’s error or reasoning. General objections are not sufficient to preserve an issue. See People v. Smalley, 2015 COA 140, ¶ 81 (Colo. App. 2015).
If an issue is not raised with the trial court or, if it is raised with the trial court but is later conceded or otherwise waived by the same party, then it is not preserved for appeal. Preservation problems most frequently occur with conduct during trial since, if evidence is admitted or statements are made in court but no objection is made, then any later asserted error is not reviewable on appeal. Put in other words, errors asserted for the first time on appeal that were not objected to or otherwise brought up in the trial court are not reviewable on appeal. Consulting with a Colorado appellate attorney can help determine how to appropriately preserve an issue for review and what issues in a case have already been preserved. See Berra v. Springer & Steinberg, P.C., 251 P.3d 567, 570 (Colo. App. 2010).
Standards of Review for Appeals in Colorado
Where an issue is properly preserved for appellate review and that issue is addressed as error in the appellate briefings, the appellate court will review that issue under the appropriate standard of review. The standard of review is the level of deference the appellate court gives to the trial court’s ruling and any findings of fact or law contained in that ruling. There are different standards of review with the applicable standard dependent upon the type of ruling and the type of issue being presented.
In general, the more a ruling or decision is dependent upon underlying facts in the trial court or the more discretion a trial court has in making a ruling, the more deference will be given to that ruling on appeal. The standards of review are:
– De Novo. De novo is Latin for “of new” and, as the name reflects, means that the appellate court is looking at the issue anew and no deference is afforded to the trial court. De novo review is the least deferential standard of review and is most commonly applicable to rulings of law in the trial court that are not dependent upon any facts. By way of example, rulings of law that are subject to de novo review include rulings by the trial court interpreting legal documents or legal authorities, such as contracts in dispute or applicable statutes. Because such decisions are not based on facts in front of the trial court, appellate courts are in effectively the same position as trial courts in rendering a decision and, thus, there is no need to afford deference to the trial court. See E-470 Public Highway Authority v. 455 Co., 3 P.3d 18, 22 (Colo. 2000).
– Clearly Erroneous. In contrast to de novo review, the clearly erroneous standard, also commonly called the clear error standard, is the next step down and deference is afforded to the trial court. The clearly erroneous standard most frequently applies to factual determinations and findings by a trial court. For example, evidentiary hearings and final verdicts often require findings of fact to determine the prevailing party. It is those types of factual type findings that are subject to the clearly erroneous standard. Because trial courts are the court level where evidence is taken and factual records are made, significant deference is given to trial courts for such findings. In other words, because trial courts actually hear and see the factual evidence, whereas as appellate courts do not and only see what is submitted on the record, trial courts are closer to those facts and, thus, deference is given to a trial court’s interpretation of those facts. Where the clearly erroneous standard applies it will only be overturned if the ruling is not supported by competent evidence in the record. Accordingly, significant deference is afforded to the trial court’s findings under the clearly erroneous standard. Bd. of Cty. Comm’rs v. Conder, 927 P.2d 1339, 1343 (Colo. 1996).
– Abuse of discretion. The abuse of discretion standard affords the most deference to the trial court’s ruling. It is most commonly applicable to procedural aspects in the trial court, such as granting extensions of time to respond to briefing, making discovery rulings, and rulings on admissibility of evidence. However, it is also applicable to rulings dependent upon factual findings where a trial court by law has significant discretion in making those findings, such as determining whether or not criminal records should be sealed or allocating parental rights for children. The reasoning for giving significant deference to the trial court’s ruling is similar to the clearly erroneous standard. The trial court deals with the parties, hears testimony, and takes evidence first-hand and, thus, is in a better position to determine what weight to give those aspects than an appellate court. An abuse of discretion occurs where a trial court’s ruling is so devoid of support in the record that it is manifestly arbitrary, unreasonable, or unfair. A misapplication of the law or misinterpretation of the law is also an abuse of discretion. While similar to the clearly erroneous standard, the abuse of discretion standard generally affords even more deference to the trial court. An abuse of discretion is not just that the ruling is unsupported by evidence, but that it is so devoid of support that there’s no rational basis at all for supporting it. See City & County of Denver v. County Court, 37 P.3d 453, 456 (Colo. App. 2002).
Importantly, regardless of the standard of review, an error must have also have substantially impacted the case. That is, a ruling or judgment may be found to be incorrect, but if it did not affect the outcome of the case, it will be deemed a harmless error and the judgment or ruling left to stand. Common examples of harmless error include the admission of evidence that may have been improper but that was immaterial to the case, the drafting and submittal of erroneous but non-impactful jury instructions, and rulings on ancillary legal issues in the case that don’t impact the outcome. Consulting with an attorney familiar with Colorado appeal law well help determine the appropriate standard of review as well as whether or not an error was potentially harmless. See Dorsey & Whitney LLP v. RegScan, Inc., 2018 COA 21 (Colo. App. 2018).
What Qualifies as an Appealable Final Judgment in Colorado Courts
Parties cannot simply appeal any ruling or judgment at any point in the case as they so please. Instead, a party generally has to wait until the case is fully resolved and a final judgment entered on the merits in order to appeal. Or, if a particular ruling or judgment entered during the case is important enough and permission is obtained from the court, in extraordinary circumstances a party may appeal that ruling or judgment immediately.
Procedurally, these are two different types of appeal. The first is an appeal from a final judgment and is how most cases proceed. The second is called an interlocutory appeal, meaning it is an appeal taken while the case is still pending in the trial court and has not yet been resolved. Interlocutory appeals are unusual as courts have a strong preference for allowing a case to proceed to completion before appeal so that all alleged errors in the case can be addressed in one appeal.
Accordingly, most cases are subject to the final judgment rule meaning that an appeal may only be taken after a final judgment is entered disposing of all claims in the case. Since many lawsuits involve multiple claims that can be disposed of at various points during a lawsuit, there may be confusion as to what qualifies as a final judgment and, thus, when it may be appealed.
More specifically, a final judgment is one that disposes of the entire litigation on its merits leaving nothing for the court to do but execute on the judgment. Thus, a motion to dismiss that dismisses some claims but not all claims, is not a final judgment. A summary judgment order that dismisses or enters judgment on some claims but not all claims is not a final judgment. And, an order determining liability but still leaving the issue of damages to be litigated is also not a final judgment. Put simply, a final judgment is the last judgment that leaves no legal issues outstanding. Instead, all that is left to do is enforce the judgment. Consulting with a Colorado civil appeal attorney can help determine when a final judgment is entered and what appellate routes may be available. See Grand County Custom Homebuilding, LLC v. Bell, 148 P.3d 398, 400 (Colo. App. 2006).
Interlocutory Appeals in Colorado Courts
In contrast to an appeal from a final judgment, an interlocutory appeal is an appeal of a non-final judgment or opinion that does not dispose of the case. For example, if a motion to dismiss is denied, thereby allowing the case to continue, a party may want to immediately the denial of that motion to dismiss without waiting for the end of the case. That would be an interlocutory appeal. In most circumstances interlocutory appeals are not allowed.
The reason for Colorado courts disfavoring interlocutory appeals comes from efficiency concerns. If appeals for each order in a case were allowed, then a case would effectively be subject to piecemeal appeals which would slow the orderly progression of the case. Instead, the court system favors full litigation of the matter in the trial court and, then, after a final disposition of the case in the trial court, parties can appeal and address all errors they perceive occurred in one appeal.
For orders or opinions that are important enough to justify seeking appellate review immediately, the Court of Appeals may permit and accept an interlocutory appeal where the trial court has certified that immediate review of the issue may promote a more orderly disposition of the case and the issue involves a controlling and unresolved question of law. Thus, for most circumstances, a party has to seek permission to pursue an interlocutory appeal on the basis that the issue is important enough that it should be pursued immediately. See C.R.S. § 13-4-102.1; C.A.R. 4.2; Kowalchik v. Brohl, 277 P.3d 885 (Colo. App 2012).
In addition to pursuing an interlocutory appeal by permission of the courts, some specific trial court rulings come with an automatic right to pursue an interlocutory appeal. Such rulings determinations of governmental and sovereign immunity; pretrial rulings on immunity under Colorado’s Governmental Immunity Act; orders denying an application to compel arbitration; temporary injunction orders; and orders appointing a receiver to manage property or assets in a case. In such circumstances if an interlocutory appeal is not pursued the party retains the right to appeal after a later final judgment. Due to the nuance of determining whether an interlocutory appeal is appropriate, having a Colorado appellate attorney review the circumstances of the case may be beneficial. See C.R.S. § 24-10-108; C.R.S. § 13-22-228; C.A.R. 1(a)(3); C.A.R. (4).
Parties That Should Be Named in the Appeal
In order to have a right to appeal, the person filing the appeal must have been aggrieved or injured by the ruling. Specifically, Colorado courts have opined that a right to appeal only attaches where the judgment or ruling denied a party or person some claim or right, either of property or a personal right, or imposed upon that party or person some burden or obligation. Put in other words, only those actually impacted by a trial court ruling or judgment have the right to appeal. See City and County of Broomfield v. Farmers Reservoir and Irr. Co., 235 P.3d 296 (Colo. 2010); C.A.R. 1(d).
Along these same lines, where a party is aggrieved by a ruling and seeks to appeal that ruling, it must be the real party in interest that files and is named in the appeal. This nuance does not create an issue in a majority of cases since the parties actually named in the case in the trial court are generally the only ones affected by rulings in that court.
However, one particular circumstance that this has created issues are where attorney’s fees are awarded against a party’s attorney as opposed to against the party itself. In such circumstances, even though the attorney is not actually a named party in the trial court case, the attorney is deemed the real party in interest since the attorney’s fees are awarded against the attorney directly.
Accordingly, the attorney, as opposed to the party the attorney represents, has to be the named in the appeal. Failure to name the real party in interest is a question of jurisdiction and, thus, can result in dismissal. See Anglum v. USAA Cas. Ins. Co., 166 P.3d 191 (Colo. App. 2007).
Similarly, while a party or person has to meet the above requirements to have the right to pursue an appeal, once the appeal is filed there are potential issues as to what other parties to name in the appeal. The same aggrieved party principles apply to those that must be named in the appeal. That is, just like a party has to be aggrieved by a trial court ruling in order to be able to file an appeal, the filing party also has to include in the appeal any other parties that could be aggrieved by the appellate court ruling.
As a practical matter, this means that those parties that could potentially be affected by an appellate ruling need to be included in the appeal. Thus, for most cases, the appellate filing would simply name all parties in the trial court. However, there are scenarios where a party may not have to be included in the appeal if they would be unaffected by or would have no interest in the appellate proceedings. Having an appeal attorney review your case can help determine the appropriate parties that should be named in the appeal. See In re Claim of Sakal, 620 P.2d 65, 66 (Colo. App. 1980).
Filing an Appeal in the Colorado Court of Appeals
The procedural timeline for filing a civil appeal in the Colorado Court of Appeals can be nuanced as it is dependent on several factors, such as whether the appealed ruling or judgment qualifies as a final judgment, whether an interlocutory appeal is sought, and whether any post-judgment motions are filed. Retaining an attorney familiar with appellate law can help navigate the process. Importantly, appeal timing requirements are often jurisdictional meaning that if an appeal is not properly and timely filed, the right to appeal can be lost. See Hillen v. Colo. Comp. Ins. Auth., 883 P.2d 586 (Colo. App. 1994).
For traditional appeals – that is, those sought after a final judgment is entered at the end of the case – a notice of appeal must be filed in the Colorado Court or Appeals within 49 days of the entry of judgment. However, where a C.R.C.P. 59 post-judgment motion is filed, the 49 day timeline for filing an appeal does not begin to run until the motion is ruled on or, if no action is taken on the motion, denied by default 63 days after it is filed. Thus, the deadline for filing an appeal can be from 49 days after entry of the judgment or up to 112 days if a C.R.C.P. 59 motion is filed. See C.A.R. 4; C.R.C.P. 59.
For interlocutory appeals, the party seeking to appeal must move for certification in the trial court that the order or ruling sought for appeal is appropriate for interlocutory review and must do within 14 days of that order or ruling being entered. If a trial court certifies the ruling as appropriate for interlocutory review, the party seeking an appeal must then file a petition to appeal with the Court of Appeals within 14 days of that certification. Notably, even though the trial court may have certified the issue as appropriate for interlocutory review, the Court of Appeals may determine the opposite and deny the appeal. See C.A.R. 4.2.
Cross-Appeals in the Colorado Court of Appeals
Importantly, when a party files an appeal it must specify the judgment or ruling that it is seeking to having modified or overturned. Accordingly, the first notice of appeal sets the framework for what will be addressed in the appeal. If another party wishes to challenge a different judgment or ruling, then that party must file a cross-appeal and specify the ruling or judgment it wishes to appeal. See C.A.R. 3; C.A.R. 4; Blocker Exploration Co. v. Frontier Exploration, 740 P.2d 983, 989 (Colo. 1987).
A cross-appeal must be filed within 14 days after the first notice of appeal is filed, or within 49 days of the date of entry of the judgment or ruling which is being appealed, whichever is later. A cross-appeal alters the timing and procedures of the appeal, such as briefing schedules and transcript designation requirements. However, in general, a cross-appeal functions similar to a normal appeal except the overall scope of the appeal is now expanded to include the judgment or ruling also being challenged in the cross-appeal. See C.A.R. 4; C.A.R. 28.1.
Whether or not a party needs to file a cross-appeal is a nuanced issue and consulting with an appellate attorney may help to determine if one is necessary. Specifically, a cross-appeal may not be necessary where certain types of legal issues are being raised, such as subject matter jurisdiction which can be raised at any time or where a party is simply defending against a judgment. That is, a cross-appeal is not necessary if a party is simply defending against a judgment and is not seeking to increase its rights under the judgment. If, however, a party is seeking to overturn or modify a judgment or ruling, a cross-appeal may need to be filed. See Fonden v. U.S. Home Corp., 85 P.3d 600, 602 (Colo. App. 2004).
General Appeal Process in the Colorado Court of Appeals
After a notice of appeal is filed the trial court is divested of jurisdiction over the merits of the case and only retains jurisdiction over post-judgment actions, such as a party’s ability to enforce the judgment during the pendency of the appeal. The trial court no longer has jurisdiction to modify the underlying judgment. See Southeastern Colorado Water v. Cache Creek Mining, 854 P.2d 167, 174 (Colo. 1993).
Once all notices of appeal and any cross-appeals have been filed, which sets the stage for the disputed issues in the appeal, the next step is certification of the record to the Court of Appeals. The clerk of the trial court is responsible for preparing copies of all record filings in the trial court and submitting it to the court of appeals. That is, the filings of the court record will be automatically sent to the Court of Appeals and the parties need to take no action to ensure that occurs. See C.A.R. 10.
However, while court filings are automatically included in the record, transcripts of any trial court hearings or in-person proceedings are not. Thus, if any issues on appeal relate to any such proceedings – for example, assertions that evidence was improperly admitted during trial – then transcripts of those proceedings will have to be included in the record. In order to include them in the record they must be designated by the requesting party. See C.A.R. 10.
The appellant has 7 days after filing her notice of appeal to designate the proceedings she needs transcribed. Any other parties then have 7 more days, for a total of 14 days after the notice of appeal was filed, to designate the proceedings they need transcribed. After these designations have been filed, the recordings of the designated proceedings will be sent to a stenographer who will transcribe them for inclusion on the record. Each party is responsible for paying the transcription fees for the proceedings it designates. If no transcripts are designated then the record will only consist of the court filings which, as discussed above, will be automatically submitted to the Court of Appeals. See C.A.R. 10.
Notably, properly designating the record is an important step as it is each party’s obligation to make sure any transcripts necessary to support their appellate arguments are included in the record. If a party fails to properly designate transcripts to be included in the record, and then later attempts to make arguments that required those transcripts to support the argument, those arguments will be rejected. See Sohocki v. Colorado Air Quality, 12 P.3d 274, 280 (Colo. App. 1999).
Once the record is designated and any requested transcripts are produced, those transcripts will then be sent and certified to the Court of Appeals along with the other court filings. After the Court of Appeals receives it, it will notify the parties that the record has been certified and that the briefing schedule has been triggered. See C.A.R. 10.
For traditional appeals where there is no cross-appeal, the appealing party has 42 days after the record is certified to submit its opening brief. Once the opening brief is submitted, opposing parties must then file their answer brief within 35 days. After any answer briefs are submitted, the appealing party then has 21 day to file a reply brief. See C.A.R. 31.
After all briefs are filed the case will then be put at issue and assigned to a division in the Court of Appeals. At that point, parties may request oral argument; however, they must do so by filing a separate notice within 7 days of the case being put at issue. Even though a request for oral argument has been submitted, the Court of Appeals is the ultimate decision maker as to whether oral argument is necessary. It may deny oral argument even though oral argument has been requested and, even if oral argument is not requested, it may still order oral argument to be held. If oral argument is ordered, it will be set several months out after the at-issue date. See C.A.R. 34.
At oral argument, each party will be given 15 minutes to argue their case. Given the short time frame for oral argument, it is intended to be a final persuasive opportunity to discuss only the most relevant issues with the presiding court. The briefs will frequently be much more comprehensive and in-depth then the issues raised in oral argument. Thus, appellate courts rely most heavily on the briefs, their own research, and the court record leaving oral argument mainly as a mechanism to clarify any questions for the court that arise from those aspects. It is a rare occurrence where oral argument is able to persuade a court to rule a certain way where the briefs alone otherwise would not. Consulting with an attorney familiar with oral argument can help with preparing a persuasive and compelling statement. After oral argument – or, if no oral argument is ordered then after the case is at-issue – the appeal will then be ripe for a decision. At that point the parties simply have to wait for the Court of Appeals to issue an opinion. See C.A.R. 34.
Staying a Judgment or Order While an Appeal Is Pending
When a party appeals a judgment or order, that judgment or order may be stayed pending resolution of the appeal. For example, if a final judgment awards monetary relief to a party but the losing party seeks to appeal that judgment, then the judgment may be stayed pending the appeal. Staying the judgment would prevent the prevailing party from enforcing the judgment and collecting on it while the losing party pursues its appellate rights.
The purpose of staying a judgment or order is to preserve the status quo of the parties during the appellate process. In general, any type of order or judgment may be stayed during an appeal, including orders granting only monetary relief and orders compelling injunctive relief or specific performance. A judgment that is not stayed is able to enforced during the pendency of the appeal. However, the party that chooses to enforce it during the appeal runs the risk that if the judgment or ruling is overturned, that party may have to return whatever money it collected under the judgment or otherwise unwind the actions it took in enforcing the judgment.
After an appeal is filed, if a party wishes to obtain a stay on the judgment or ruling, it must first seek a stay in the trial court. If a stay is denied the party may then seek a stay with the Colorado Court of Appeals or, if appropriate, with the Colorado Supreme Court. See C.R.C.P. 62; C.A.R. 8.
In seeking a stay, the presiding court has significant discretion as to the terms and conditions of implementing a stay. For example, in seeking to stay a monetary judgment, the presiding court may set the bond amount required to be deposited into the court registry to secure the judgment during the pendency of the appeal. The Colorado Rules of Civil Procedure reflect that 125% of the judgment is recommended as a supersedeas bond; however, the court is free to adjust that amount as it deems appropriate. Once a supersedeas bond amount is set, the judgment or order being appealed will only be stayed after the money is deposited with the court. If no deposit is made, a stay will not be entered. See C.R.C.P. 62; C.R.C.P. 121 § 1-23.
For nonmonetary judgments or rulings, such as those compelling a party to take some specific action, the presiding court has even more discretion as to whether or not to implement a stay as well as the terms and conditions of that stay. The court may stay the judgment automatically with no bond requirement, or set a bond to compensate for any injuries that a party may incur as the result of delay caused by the appeal. In determining whether or not to stay injunctive relief, Colorado courts have determined the following factors should be considered by the trial court:
(1) Whether the stay applicant has made a strong showing that he is likely to succeed on the merits;
(2) Whether the applicant will be irreparable injured absent a stay;
(3) Whether issuance of the stay will substantially injure the other parties interested in the proceeding; and
(4) Where the public interest lies in granting a stay.
See Romero v. City of Fountain, 307 P.3d 120 (Colo. App. 2011). Because of the complexity of determining how to seek a stay and the terms and conditions considered in implementing a stay, consulting with an appeal attorney may help navigate these issues. Since the appellate process can take years, obtaining or combating a stay can have a significant effect on the parties’ interests in pursuing an appeal.
Final Resolution of the Appeal
In reviewing a trial court judgment or ruling on appeal, the Court of Appeals or Colorado Supreme Court may affirm, vacate, modify, reverse, or set aside that judgment or ruling and, in circumstances where further proceedings in the trial court are necessary, remand the case back to the trial court to conduct those proceedings. See C.A.R. 35.
If the appeal is in the Court of Appeals, once an opinion is issued that opinion will become final and a mandate will be issued 42 days after entry of the opinion. However, if certiorari is sought with the Colorado Supreme Court, then a mandate will not issue until the Colorado Supreme Court proceedings have resolved. In contrast, and since the Colorado Supreme Court is the highest appellate court in Colorado, for cases in the Colorado Supreme Court a mandate will issue only 14 days after entry of an opinion. See C.A.R. 41.
In the time period between when an opinion is issued and a mandate issues, if a party is in disagreement with the opinion and believes there was an error in the opinion, the party may file a motion for reconsideration. The motion must point out with particularity the errors of law or fact that the party believes are in the opinion. Motions for reconsideration are only rarely granted and are typically reserved for scenarios where there is a demonstrable error in the opinion. Motions for reconsideration are not simply another opportunity to argue the merits of the appeal and motions of that type are routinely denied. See C.A.R. 40.
Once the mandate issues the opinion is given effect and jurisdiction is restored to the trial court. The issuance of a mandate is, in effect, the final appellate judgment which indicates all appeal issues have been resolved by the appellate court. Thus, there are no further proceedings in the appellate court and the case is returned to the trial court so that any further proceedings that may be necessary can be conducted. In other words, the issuance of a mandate represents the conclusion of the appellate proceedings. See C.A.R. 41(d).
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