How to Lose an Appeal Without Really Trying
| Publication year | 1975 |
| Pages | 831 |
| Citation | Vol. 4 No. 5 Pg. 831 |
1975, May, Pg. 831. How to lose an Appeal Without Really Trying
Mistakes and oversights occur frequently in the handling of appeals which at the least cause unnecessary delay and at the most result in dismissal by the appellate court. The purpose of this article is to serve as a refresher relative to appeals of civil cases commenced in the district court in the hope that most of these problems can be eliminated so that all appeals can be determined on their merits. Subsequent articles will treat appeals in other types of cases.
At the outset, the practitioner should remember that an appeal starts with the first client interview. The facts of each case must be carefully investigated so that the proper claim for relief or defense can be pleaded. Incorrect pleadings often prevent the determination of the case on its merits. In this connection, Colorado Jury Instructions should be consulted for assistance in determining whether the evidence that can be produced will establish the elements of a cause of action or defense.
Preparation for trial cannot be overemphasized. The practitioner must take the time necessary to research and prepare the evidence so as to qualify it for admission in the case, to prepare for objections from the opposition, to prepare objections to the opponent's evidence, and to make certain that the record is preserved for appeal. Generally, it is immaterial that the trial court has erred if the error is raised for the first time before the appellate court.
With these fundamentals in mind, this article emphasizes three areas: appellate procedure, preparation of briefs, and oral arguments. Consistent with the trend to present procedural subjects in checklist form, a checklist for the practitioner in appeals of civil cases commenced in the district court is as follows:
---Entry of Judgment: C.R.C.P. 58, 79, and 54(b)
---Motion for New Trial: C.R.C.P. 59
---Notice of Appeal and Bond: C.A.R. 3, 4, and 7
---Designation of Record: C.A.R. 10
---Docketing the Appeal: C.A.R. 11 and 12
---Motions Relative to the Appeal: C.A.R. 27
---Appellate Briefs: C.A.R. 28, 31, and 32
---Oral Argument: C.A.R. 34
---Petition for Rehearing: C.A.R. 40
---Certiorari to Supreme Court: C.A.R. 52
C.R.C.P. 58 and 79 govern the entry of judgment except for judgments rendered pursuant to C.R.C.P. 54(b). Entry of judgment is a critical factor in the appellate process because the time period for filing motions for new trial and the notice of
With the exception of cases covered by C.R.C.P. 54(b), the judgment is not final for the purposes of appeal until it concludes the case so that no further action is necessary to determine completely the rights of the parties involved.(fn2) Thus, for example, the following orders of the trial court are not final judgments: denying a motion to add additional parties,(fn3) quashing service of process,(fn4) dismissing a third-party complaint without prejudice,(fn5) dismissing a plaintiff's claim against some (but not all) of the defendants,(fn6) adjudicating part (but not all) of the claims,(fn7) and granting a new trial.(fn8)
Final adjudication of a particular claim in a case involving multiple claims or multiple parties may be certified as a final judgment pursuant to C.R.C.P. 54(b).(fn9) However, if counsel seeks to appeal under these circumstances, the requirement of C.R.C.P. 54(b) for entry of judgment must be followed,(fn10) and it must appear that, in fact, final adjudication has occurred as to that particular claim.(fn11)
Pursuant to C.R.C.P. 59(h) a motion for new trial is required in all cases involving controverted issues of fact. C.R.C.P. 59(f) does not allow the trial court to waive this requirement.
Unless "newly discovered evidence" is urged as ground for a new trial, C.R.C.P. 59(b) requires that a motion for new trial be filed within 10 days after entry of judgment, or within such further time as is allowed by the trial court. However, the request for any extension of time must be made within the initial 10 days because the trial court loses jurisdiction to grant an extension once the 10-day period has expired.(fn12) A motion for new trial based upon newly discovered evidence must be filed within six months after entry of the judgment.
In lieu of a motion for new trial, C.R.C.P. 59(e) authorizes a motion to alter or amend the judgment. This motion must not be confused with a motion to amend the findings pursuant to C.R.C.P. 52; a Rule 52 motion will not serve as a motion for new trial.(fn13) Failure to file a motion for new trial or to amend the judgment when the case involves controverted issues of fact will result in dismissal of the appeal,(fn14) and issues not raised in the motion generally may not be considered in the appeal.(fn15)
A motion for new trial or to amend the judgment pursuant to C.R.C.P. 59 must be supported by the memorandum brief specified in the rule. Failure to file the required memorandum will result in...
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