Post-trial Motions in the Civil Case: an Appellate Perspective

• Publication year: 2003
• Pages: 71

32 Colo.Law. 71 Colorado Lawyer 2003.

2003, November, Pg. 71. Post-Trial Motions in the Civil Case: An Appellate Perspective

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71

Vol. 32, No. 11, Pg. 71

The Colorado Lawyer
November 2003
Vol. 32, No. 11 [Page 71]

Specialty Law Columns
The Civil Litigator
Post-Trial Motions in the Civil Case: An Appellate Perspective
by Marilyn L. Robertson, Anne Whalen Gill

The Civil Litigator column addresses issues of importance and interest to litigators and trial lawyers practicing in Colorado courts. The Civil Litigator is published six times a year

Column Editor

Richard L. Gabriel of Holme Roberts & Owen llp, Denver - (303) 861-7000, gabrier@hro.com

About The Authors

This month's article was written by Marilyn L. Robertson, Denver, a solo practitioner in appellate law - (303) 292-5595, marilyn@robertson.name; and Anne Whalen Gill, Castle Rock, a solo practitioner in appellate law - (303) 713-9050, annewhalengillpc@ qwest.net.

This article presents an overview of post-trial motions from the perspective of planning an appeal of a final judgment or order in civil litigation.

For the civil litigator, post-trial motions are used for many purposes. Such motions may involve altering or amending the judgment, correcting clerical errors, presenting new evidence, and requesting attorney fees. Additionally, most post-trial motions result in rulings appealable independently from the underlying judgment. However, because the utility of post-trial motions from an appellate perspective has largely been unaddressed, this article attempts to remedy this oversight.

The most common types of post-trial motions are Colorado Rules of Civil Procedure ("C.R.C.P." or "Rule") 59 and 60 motions. Both Rule 59 and Rule 60 motions are the procedural mechanisms that can be used to challenge a final judgment or order. These rules provide the only means by which the trial court may alter, amend, or vacate the judgment after a valid judgment is entered.1

It is critical to correctly identify the type of post-trial motion, because Rule 59 and Rule 60 motions differ as to: (1) jurisdictional time limits for timely filing; (2) jurisdictional time limits for deciding; and (3) effects on jurisdictional time limits for an appeal.

This article addresses post-trial motions from the perspective of planning an appeal of the final judgment or order in civil litigation. It focuses primarily on post-trial motions brought under C.R.C.P. 59 and 60. The article also examines the viability of C.R.C.P. 52 motions, as well as motions for attorney fees and costs under C.R.C.P. 121 § 1-22. Novice and seasoned practitioners alike should benefit from an increased understanding of the utility of post-trial motions for posturing their cases on appeal.

Threshold Considerations Involving C.R.C.P 59 and 60 Motions Prior to Appeal

Before filing a post-trial motion, and in posturing for appeal, the attorney should initially consider a number of issues. These include: (1) determining if there is a final and appealable judgment; (2) identifying the basis of the post-trial motion; (3) assessing issues involving combined post-trial motions (if applicable); and (4) understanding C.R.C.P. 59 and 60 rulings. As discussed below, each of these matters has ramifications in the appeals context.

Final and Appealable
Judgment

By far, the single most important threshold consideration is whether the practitioner has a final judgment. The filing of a post-trial motion does not turn an otherwise non-final judgment into a final and appealable judgment.2 Generally, in civil cases, appeals can be taken only from final judgments. Further, the notice of appeal must be filed within forty-five days of the entry of the judgment.3 In a civil case, the judgment or order must be written, signed, and dated.4 Thus, the determination of whether a judgment is a final judgment for purposes of appeal is unrelated to the filing of a post-trial motion. However, before filing an appeal, the prudent litigator should ascertain that he or she has a final judgment.5 The Court of Appeals will dismiss the appeal if there is not a final judgment.

Proper Identification of
Post-Trial Motion - Beware "Motions for Reconsideration"

It is a common, albeit highly questionable, practice for litigators to file a post-trial motion labeled simply as a "Motion for Reconsideration."6 By so labeling the motion, a litigator may think he or she is covering all bases when the litigator is unsure of the nature of the motion. However, such strategy is unwise and ultimately may backfire.

First, judges have been critical of such general motions, finding "Motions for Reconsideration" to be ambiguous and the cause of significant confusion to both bench and bar.7 Such ambiguity forces the judge to determine the exact nature of the motion, such as whether the motion is a disguised C.R.C.P. 59 or 60 motion. It also unnecessarily focuses the judge on the procedural, instead of the substantive, impact of the motion.

Second, by using such ambiguous terminology, the litigator is placed in a self-imposed quandary as to whether the filing of a motion for reconsideration has tolled the time period for filing a notice of appeal. As discussed below, if the motion for reconsideration really is a C.R.C.P. 60 motion, the time period for filing the notice of appeal has not been tolled. However, if the motion is a C.R.C.P. 59 motion, the time period for filing the notice of appeal has been tolled.8

In such a situation, the litigator may wish for a crystal ball. To avoid ambiguity, and the risk of malpractice that it brings, counsel should determine the proper rule under which he or she is proceeding and caption the motion accordingly. For example, counsel should caption the motion as "Motion for New Trial Pursuant to C.R.C.P. 59" or a "Motion for Relief from Judgment Pursuant to C.R.C.P. 60." Proper captioning permits the judge to focus on the substantive arguments presented, rather than the procedural nature of the motion. Such proper captioning also prevents needless confusion and stress over the calculation of the proper time period for filing a notice of appeal, and minimizes the possibility of missing the jurisdictional appellate deadline for filing a notice of appeal.

Multiple Post-Trial Motions

Motions for post-trial relief under Rule 59 and Rule 60 may be asserted separately, combined, or asserted in the alternative. Nonetheless, if the motions are combined or asserted in the alternative, there is significant risk of obscuring the jurisdictional deadlines and missing the time to appeal. To minimize such risk, combining motions or asserting such motions in the alternative is not recommended.

C.R.C.P. 59 and 60 Rulings

Rulings on post-trial motions are themselves appealable orders and must be written, signed, and dated in compliance with C.R.C.P. 58(a).9 In addition, in the notice of appeal, such rulings should be identified specifically as an order being appealed, with the alleged error listed as an advisory issue.10

Such rulings on Rule 59 and Rule 60 motions create a new appellate issue, in addition to the issues that arise from the judgment on the merits.11 It is possible that the same issues, such as prejudgment interest and newly-discovered evidence, may be raised in post-trial motions filed pursuant to both C.R.C.P. 59 and 60.12

However, neither a C.R.C.P. 59 nor 60 motion serves as a mechanism to substitute for counsel's failure to raise issues during the trial.13 The ruling on the post-trial motion under C.R.C.P. 59 and 60 should be final for purposes of appeal pursuant to C.R.C.P. 58(a). As such, the ruling should be presented as an order being appealed in the notice of appeal, and the asserted error listed as an advisory issue in the notice of appeal.14

Overview of C.R.C.P. 59 Motions

A party may file a motion for post-trial relief pursuant to C.R.C.P. 59 requesting: (1) a new trial of all or part of the issues; (2) judgment notwithstanding the verdict; (3) amendment of findings; or (4) amendment of judgment.15 The motion must state the grounds asserted and the relief sought. The motion may request such post-trial relief in combination or in the alternative.

Under C.R.C.P. 59, the court, on its own initiative, may order the same relief as that available to a party. The court's order must specify the grounds and may be entered on any ground available to a party. In addition, the court's order must be entered within the time period allotted the parties.16

Grounds for the Motion

C.R.C.P. 59 sets forth the grounds for a new trial. Such grounds include:

Any irregularity in the proceedings by which any party was prevented from having a fair trial

Jury misconduct

Accident or surprise

Newly discovered evidence

Excessive or inadequate damages

Error in law.17

Grounds for a judgment notwithstanding the verdict include insufficiency of the evidence as a matter of law, or the absence of a genuine issue as to any material fact entitling the moving party to judgment as a matter of law.18

Jurisdictional Time
Limits for Filing

A C.R.C.P. 59 motion must be filed within fifteen days of entry of judgment or within such greater time as the court allows.19 If the judgment is transmitted to the parties by mail, the date of filing is extended by three days.20 Moreover, as long as the request for an extension of time for filing is made within the time for filing the motion, the trial court may grant an extension for filing a C.R.C.P. 59 motion.21

It is crucial that the litigator understand that the fifteen-day time period for filing a C.R.C.P. 59 motion is a jurisdictional one. Thus...