Interlocutory Appeals in Civil Cases Under C.a.r. 4.2
| Publication year | 2012 |
| Pages | 67 |
| Citation | Vol. 41 No. 4 Pg. 67 |
2012, April, Pg. 67. Interlocutory Appeals in Civil Cases Under C.A.R. 4.2
April 2012
Vol. 41, No. 4 [Page67]
Judges' Corner is published quarterly to provide information Colorado judges would like to disseminate to attorneys. If you would like to suggest topics or write an article for this Department, please send an e-mail to Coorindating Editor Alan Loeb, Colorado Court of Appeals Judge, at alan.loeb@judicial.state.co.us.
About the Author
John R. Webb has been a judge on the Colorado Court of Appeals since 2002.
Effective January 2011, a new statute and an implementing appellate rule significantly expanded the Colorado Court of Appeals' jurisdiction to accept interlocutory appeals of certain orders in civil cases. In exercising this jurisdiction, the court has issued published opinions rejecting four petitions for interlocutory appeal and accepting two petitions. In unpublished orders, it has rejected seven petitions. This article reviews the background, the statute,(fn1) the rule,(fn2) and the published decisions.(fn3)
Background
Piecemeal appeals "hinder judicial administration."(fn4) Nevertheless, interlocutory appeals have long been a matter of right as to rulings involving preliminary injunctions,(fn5) arbitrability,(fn6) certain immunity issues,(fn7) and contempt.(fn8) In addition, on motion, a trial court may certify as final a judgment that would not otherwise be appealable, if it completely resolves a claim as to at least one party and the court discerns no just reason for delay.(fn9)
In 2009, a practitioner requested that the Colorado Supreme Court Appellate Rules Committee (Committee) consider recommending a statutory change to permit interlocutory appeals.(fn10) The proposal referenced the federal interlocutory appeal statute.(fn11) A subcommittee drafted a statute, which the Committee endorsed. The Colorado Bar Association obtained legislative sponsorship.(fn12)
In 2010, the General Assembly enacted and the governor signed CRS § 13-4-102.1. The statute provides:
(1) The court of appeals, under rules promulgated by the Colorado supreme court, may permit an interlocutory appeal of a certified question of law in a civil matter from a district court or the probate court of the city and county of Denver if:
(a) The trial court certifies that immediate review may promote a more orderly disposition or establish a final disposition of the litigation; and
(b) The order involves a controlling and unresolved question of law.
(2) A majority of the judges who are in regular active service on the court of appeals and who are not disqualified may, if approved by rules promulgated by the Colorado supreme court, order that an interlocutory appeal permitted by the court of appeals be heard or reheard by the court of appeals en banc.
The Committee then reconvened the subcommittee to draft a proposed rule. The subcommittee prepared, the Committee approved, and the Supreme Court adopted C.A.R. 4.2.(fn13) The Rule became effective January 1, 2011.
CRS § 13-4-102.1
The statute includes three requirements. The first requirement-that the immediate appeal "may promote a more orderly disposition or establish a final disposition of the litigation"(fn14)-differs from the federal language ("may materially advance the ultimate termination of the litigation"(fn15)). Neither the legislative history nor the Committee Minutes address this difference. The second and thirdrequirements-that an order involve "a controlling and unresolved question of law"(fn16)-are similar to the federal statute ("a controlling question of law as to which there is substantial ground for difference of opinion"(fn17)).
C.A.R. 4.2
C.A.R. 4.2(b)(2) explains that an "unresolved question of law" means:
Otherwise, the Rule repeats but does not amplify on the three requirements of the statutea question that has not been resolved by the Colorado Supreme Court or determined in a published decision of the Colorado Court of Appeals, or a question of federal law that has not been resolved by the United States Supreme Court.
C.A.R. 4.2(c) addresses procedures in the trial court. Within fourteen days of the date of the order being appealed, the party seeking to appeal either must move for certification or submit a stipulation by all parties. The court has discretion to certify the order, unless all parties have stipulated to certification. Denial of a motion for certification is not appealable.
C.A.R. 4.2(d) addresses procedures in the court of appeals. The original and one copy of the petition, along with all supporting documents saved in PDF format and on a CD, must be filed within fourteen days of the date of the trial court's certification order. The docketing fee is $220. The form and content of the petition, as well as the list of supporting documents, generally parallel the requirements for a petition under C.A.R. 21.
Unless requested by the court of appeals, no response to the petition is allowed. If the court grants the petition, it serves as the opening brief. An...
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