Motions Practice in the Court of Appeals
| Publication year | 1994 |
| Pages | 1997 |
1994, August, Pg. 1997. Motions Practice in the Court of Appeals
More than 7,000 motions a year are filed in the Colorado Court of Appeals, resulting in a like number of orders. This article covers the criteria considered in deciding the most common civil motions in the Court of Appeals. Additionally, it discusses some of the recently adopted changes to the Colorado Appellate Rules ("C.A.R.").
The most common question asked of the clerk's office is, "How many copies need to be filed?" The answer is the original motion and five copies, except for requests for extensions of time, which require only an original.(fn1)
When motions are filed in the clerk's office, they are attached to the proper case file (the flat file) for review by the motions staff attorney. The initial review is for obvious defects, such as lack of a certificate of service. A motion with a defective certificate of service or no certificate will be denied immediately. The motions are then trailed (that is, tagged in the court's computer system) for responses and acted on in accordance with the guidelines presented in this article. Most motions, such as motions for stay, supplemental record, remand or dismissal, are put on a trailing docket for ten days to allow time for a response.(fn2) Exceptions are withdrawal of an attorney, 15 days,(fn3) and dismissal for untimely filing of the record, 14 days.(fn4)
Emergency stays and motions to expedite are reviewed to determine whether immediate action is needed. Motions for extensions of time and to exceed page limits on briefs are decided within twenty-four hours.
One judge is assigned to motions duty and decides contested motions. A motions division of three judges decides motions for stays, to dismiss and requests to reconsider orders of the motions judge. Assignment of judges to the motions division rotates every month. Certain motions, such as to transfer a case to the Colorado Supreme Court or for extension of time beyond established guidelines, are decided by the chief judge.
C.A.R. 3 details the information that notices of appeal should include. Although the contents of the notice are not jurisdictional,(fn5) the Court of Appeals will issue an order to correct serious deficiencies.(fn6) In addition to reviewing the notice of appeal when the file is first set up, court staff also screen all civil appeals for jurisdictional defects after the trial court register of actions is received.
Nearly 25 percent of the civil cases filed in the Court of Appeals have potentially fatal jurisdictional defects when the notices of appeal are reviewed in conjunction with trial court registers of actions.(fn7) Almost half of the defects relate to noncompliance with Colorado Rules of Civil Procedure ("C.R.C.P.") 58(a); more than 30 percent involve questions of timeliness; and about 16 percent concern whether the substance of the order being appealed is final.(fn8)
Notices of appeal must identify the appellant, the appellee and counsel.(fn9) Parties who were before the trial court who are not involved in the appeal do not need to be included.(fn10) Attorneys seeking to appeal an award of fees against themselves must identify themselves as appellants.(fn11) Appeals from administrative agencies must include the agency as a party to the appeal.(fn12)
Extensions of time to file notices of appeal are usually granted subject to the jurisdictional limitation in C.A.R. 4(a).(fn13) Generally, extensions of time for filing notices of appeal from administrative agency orders are not available.(fn14) However, the organic statute for the specific agency should be reviewed to confirm that no extension of time has been authorized. Motions for extensions of time to file notices of appeal in Industrial Claim Appeals Office ("ICAO") cases will be denied.(fn15)
Effective July 1, 1994, the Colorado Appellate Rules specifically address cross-appeals.(fn16) C.A.R. 28(h) now provides that the party first filing a notice of appeal shall be deemed the appellant
unless otherwise stipulated or ordered.(fn17) The amendment to C.A.R. 28(h) also incorporates the policy of the Court of Appeals to require combination briefs in cross-appeals: the cross-appellant shall file a single brief entitled an "opening-answer brief." The appellant's response to that shall be entitled an "answer-reply brief."
The combination briefs are limited to thirty pages.(fn18) In addition, the combination briefs must be filed within thirty days after service of the opposing party's brief.(fn19)
Extensions are routinely granted for parties represented by counsel in...
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