Colorado Appellate Procedure: Part Ii
| Publication year | 1973 |
| Pages | 21 |
1973, June, Pg. 21. Colorado Appellate Procedure: Part II
This article is a continuation of "Colorado Appellate Procedure" which appeared in the May issue of The Colorado Lawyer. The earlier portion dealt with appeals from the municipal and county courts. This part deals with appeals from the district court to either the Court of Appeals or the Supreme Court of Colorado and certiorari proceedings in the Supreme Court to review decisions of lower courts. Proceedings which are of special or limited interest are not discussed---for example, review of Industrial Commission orders is not discussed, nor are proceedings invoking the original jurisdiction of the Supreme Court or postconviction proceedings under the Colorado Rules of Criminal Procedure. Rules, statutes and cases dealing with these special situations are extremely important when such a situation is encountered. However, it is the purpose of this article to address appellate procedure as it applies in general to the vast majority of cases.
Upon receiving an adverse decision in the district court, counsel for the losing party customarily considers whether the decision should be appealed. The question, of course, must be answered on a case-by-case basis. The chances of obtaining a reversal in whole or in part obviously depend on the merits of each individual case and no general counsel can be offered in this respect. However, statistics may be influential in the process of deciding whether to appeal. Of 353 cases decided by the Court of Appeals in 1972, 87 or 22 percent were completely reversed. Fifteen cases or 6 percent were reversed in part.(fn1)
Prior to 1970, review of the final judgment of a district court was accomplished by writ of error to the Supreme Court(fn2) except where the judgment resulted from an appeal to the district court from a county court, in which case review was by writ of certiorari.(fn3) The Colorado Rules of Civil Procedure governed the procedural aspects of appeals. However, in 1969, the General Assembly reestablished(fn4) the Court of Appeals,(fn5) and the Supreme Court promulgated the Colorado Revised Rules of Civil and Appellate Procedure and the
Colorado Appellate Rules which replaced the writ of error(fn6) and provided for appeals of both civil and criminal matters.(fn7)
An appeal to the appellate court may be taken from a final judgment(fn8) of any district, superior, probate, or juvenile court in all actions or special proceedings whether governed by the Colorado Appellate Rules or by Colorado statute.(fn9) In addition, appeals are allowed from: a judgment and decree, or any portion thereof, in a proceeding concerning water rights and an order refusing, granting, modifying, canceling, affirming or continuing in whole or in part a conditional water right, or a determination that reasonable diligence or progress has or has not been shown in an enterprise granted a conditional water right;(fn10) an order granting or denying a temporary injunction;(fn11) an order appointing or denying the appointment of or sustaining or overruling a motion to discharge a receiver.(fn12) One seeking review of a judgment or order must bring his case within one of the categories under the above provisions; otherwise it is not appealable.(fn13)
The changes in the appellate process brought about by the legislation enacted by the General Assembly and the new court rules gave the Court of Appeals initial jurisdiction over appeals from final judgments of the district courts and superior, probate and juvenile courts of the City and County of Denver.(fn14) In addition, the Court of Appeals was given initial jurisdiction to review awards or actions of the Industrial Commission(fn15) and was given authority to issue any writs, directives, orders, and mandates necessary to the determination of cases within its jurisdiction.(fn16)
The general appellate jurisdiction of the Court of Appeals does not extend to:
Criminal cases tried initially in district court and contributing delinquency cases, pursuant to section 22-1-4(2)(b), C.R.S. 1963, as amended, tried initially in the juvenile court of the City and County of Denver;(fn17)
Cases in which the constitutionality of a statute, a municipal charter provision, or an ordinance is in question;(fn18)
Cases concerned with decisions or actions of the public utilities commission;(fn19)
Water cases involving priorities or adjudication;(fn20)
Writs of habeas corpus;(fn21)
Cases appealed from the county court to the district court or superior court, as provided in Section 37-15-10;(fn22)
Summary proceedings initiated under chapter 49 C.R.S. 1963, as amended.(fn23)
The first exception above removed all criminal cases from the jurisdiction of the Court of Appeals. Hence, review in criminal matters is directly to the Supreme Court. However, at the time of this writing, H.B. 1170 is under consideration by the General Assembly. Passage of this bill would remove the exception dealing with criminal cases.
If either party alleges or the court is of the opinion that a case before the Court of Appeals is not properly within its jurisdiction, the Court of Appeals must refer the case to the Supreme Court which must conclusively decide the question of jurisdiction in a summary manner.(fn24)
If improper jurisdiction is alleged by a party in interest, such allegation must be made by motion filed with the Court of Appeals within 20 days after the record is filed with the Clerk of the Court of Appeals.(fn25) Cases filed in the wrong court may not be dismissed but must be transferred and considered properly filed in the court which the Supreme Court determines has jurisdiction.(fn26)
Prior to final adjudication, the Court of Appeals may certify any case before it to the Supreme Court for its review and final determination if the Court of Appeals finds the subject matter of the appeal has significant public interest,(fn27) if the case involves legal principles of major significance,(fn28) or if the caseload of the Court of Appeals is such that the expeditious administration of justice requires certification.(fn29) The Supreme Court must consider such certification and may accept the case for final determination or remand it for determination by the Court of Appeals.(fn30) In the
alternative, the Supreme Court may order certification of any case before the Court of Appeals to the Supreme Court for final determination.(fn31)
The Colorado Appellate Rules set forth the procedure which must be followed in prosecuting an appeal. A timely motion for new trial together with a supporting brief is a prerequisite to undertaking most civil appeals;(fn32) without such motion the appeal is subject to dismissal.(fn33) Furthermore, a trial court cannot enlarge the time for the filing of a motion for new trial after the expiration of the time limit.(fn34) Only issues raised in such motion will be considered on review(fn35) and issues not raised in the trial court will not be considered by the appellate court when raised for the first time on appeal.(fn36)
The first step in the appellate process is the filing of a timely notice of appeal with the clerk of the trial court.(fn37) The notice of appeal must specify the party or parties taking the appeal and must designate the judgment, order or part thereof appealed from.(fn38) The clerk of the trial court must then serve notice of the filing of the notice of appeal by mailing a copy thereof to counsel of record of each party other than the appellant, or, if a party is not represented by counsel, to the party at his last known address. In the event of the clerk's failure to serve notice, the validity of the appeal is not affected.(fn39)
In civil cases, the notice of appeal must be filed within 30 days of the entry of judgment if the parties are present at the time the final judgment is announced.(fn40) However, if notice of entry of judgment is given by mail, the time for the filing of the notice of appeal commences from the date of mailing. Upon a showing of excusable neglect, the trial court may extend the time for filing the notice of appeal for a period not to exceed 30 days from the expiration of initial period.(fn41) The appellate court is precluded from enlarging the time for filing a notice of appeal beyond that prescribed in Colorado Appellate Rule 4(a).(fn42) The timely filing of a notice of appeal is mandatory and jurisdictional, and where filing is not timely the appeal will be dismissed.(fn43)
As long as the notice of appeal is filed subsequent to the entry of a final judgment which is appealable, the fact that it is technically premature does not subject the appeal to dismissal.(fn44) Once a timely notice of appeal is filed, any other party may file a notice of appeal within 14 days of the date on which the first notice of appeal was filed, or within the time remaining on the initial 30-day period if such time is longer.(fn45) Thus, if the appellee desires to cross-appeal, he must follow the above rule.(fn46)
Together with the notice of appeal, the appellant in a civil case must file a bond for costs on appeal with the trial court.(fn47) The bond or equivalent security must be in the sum or value of $250 unless the trial court fixes a different amount.(fn48) The appellee may raise the issue of the sufficiency of a surety and the adequacy of the amount.
Since initiation of an appeal does not stay the judgment or order...
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