There Is a Still a Chance: Raising Unpreserved Arguments on Appeal
| Publication year | 2013 |
| Pages | 29 |
| Citation | Vol. 42 No. 6 Pg. 29 |
By John M. Bowlin
Articles The Civil Litigator
The Civil Litigator articles address issues of importance and interest to litigators and trial lawyers practicing in Colorado courts. The Civil Litigator is published six times a year.
Coordinating Editor
Timothy Reynolds, Boulder, of Bryan Cave HRO—(303) 417-8510, timothy.reynolds@bryancave.com
About the Author
John M. Bowlin is an associate with the firm of Davis Graham & Stubbs LLP. His practice focuses primarily on appellate litigation and commercial litigation —(303) 892-9400, John. bowlin@dgslaw. com.
Generally, Colorado appellate courts will not address contentions that were not raised and ruled on in the trial court, but sometimes they do. This article discusses how an attorney might successfully raise an unpreserved argument on appeal
Preservation of arguments is perhaps one of the most important components to a successful appeal. It is so important that the Colorado appellate courts require a separate statement in briefs of the precise location in the record where each argument was raised and ruled on. [1]Sometimes, though, a practitioner discovers a potentially winning argument in a civil case that 5ivas not preserved in the trial court. This article describes some of the options available to an attorney who faces such a situation in the Colorado appellate courts.[2]
Attorneys whose clients seek to persuade the appellate court to affirm a lower court's judgment may present any argument supporting the lower court's decision, even if it was never mentioned before. [3] This principle obviously applies when raising an argument for the first time on direct appeal. It also should apply when an attorney raises such an argument for the first time on certiorari review, but the cases are less clear on this point and the rule's application leads to a potentially broad allowance of unpreserved arguments.
An attorney arguing for reversal of the trial court's judgment in a civil case might argue that no specific rule required preservation [4] or might convince an appellate court to exercise its discretion to notice unpreserved errors. [5] Colorado appellate courts exercise this discretion only very rarely, and this article attempts to identify the areas in which the courts are most likely to do so. [6]
Preserving Arguments for Appeal
Although this article discusses an attorney's options where arguments have not been preserved, it is important to remember that practitioners should always preserve their arguments for appeal. Cases addressing unpreserved arguments are exceedingly rare. [7]Numerous articles in past issues of The Colorado Lawyer provide detailed instruction on preserving arguments for appeal. [8] The rules of preservation are at times nuanced, so all attorneys should study them carefully and remain vigilant at trial to apply them for the benefit of the client.
Defending the Judgment Below
On appeal, a party may defend the trial court’s judgment "on any ground supported by the record, regardless of whether that ground was relied upon or even contemplated by the trial court."[9] This general rule most clearly applies when a party has brought an appeal to either the Colorado Court of Appeals or the Colorado Supreme Court directly from the trial court’s judgment.[10]
The rule also should apply when a party wishes to defend the judgment of the Court of Appeals, not the judgment of the trial court, on certiorari review before the Supreme Court.[11] In Farmers Group, Inc. v. Williams, the Colorado Supreme Court stated that "[i]t is settled law that a respondent may defend the judgment of the trial court or the court of appeals on any ground supported by the record."[12]
A party may raise such an unpreserved contention even where the court of appeals overturned the trial court’s ruling and so, in essence, the party can assert an unpreserved argument that the trial court committed reversible error. Consider, for example, a case where the trial court gives the jury an instruction about the elements of a claim and the defendant objects only to the description of one element. The court of appeals then reverses, holding that the trial court’s instruction on that element was erroneous. On certiorari, the defendant could seek to defend the court of appeals’ judgment by arguing that the trial court’s description of a different element was erroneous, even though that language was not challenged in the lower court. Although they have not expressly held that the rule should apply in these circumstances, Colorado courts adopted the rule from the federal courts in 1975, [13] and the federal courts appear to apply the rule to such a contention.[14]
A party also should be able to present any argument in support of the trial court’s judgment on certiorari review in the Supreme Court.[15] The reason is simple. The Supreme Court would waste judicial resources if it reversed and remanded for the trial court to enter the same judgment again, but based on different reasoning.[16]
Interestingly, based on the rule’s application in these latter two situations, it is possible that both parties on certiorari review could raise unpreserved arguments to the Supreme Court. That is, if the court of appeals reversed the trial court’s judgment and the appellee obtained certiorari review, the appellee (now petitioner) could raise new arguments in support of the trial court’s judgment and the appellant (now respondent) could raise new arguments in support of the court of appeals’ judgment.
Given these implications, the principle appears fairly broad. However, the careful practitioner must remember one important limitation: the party defending the judgment may raise only arguments that "would not increase his rights under the judgment."[17] Such unpreserved arguments therefore are generally limited to alternative lines of reasoning that would support the same relief obtained in the lower court.[18] Under this rubric, fewer unpreserved arguments are possible, given a certain set of circumstances. A party defending an evidentiary ruling, for example, probably cannot assert that the trial court committed error in denying its motion for summary judgment, even though an appellate holding in that party’s favor on the latter issue would excuse the trial court’s erroneous evidentiary ruling.
Attacking the Judgment Below
As a general rule, an attorney may not raise unpreserved issues on appeal. In fact, the Colorado Supreme Court has stated that "[i]t is axiomatic that issues not raised in or decided by a lower court will not be addressed for the first time on appeal."[19] This general statement is not all-encompassing, however. As discussed above, courts routinely consider alternative arguments supporting the judgment of a lower court. As to new arguments to overturn a judgment, two considerations warrant further attention: (1) the general proposition actually rests on various specific rules requiring a party to raise arguments in the trial court;[20] and (2) Colorado appellate courts retain the right to notice any error of record.[21]
Specific Rules About Preserving Arguments
Though often stated as a broad proposition, the Colorado Supreme Court instructed in Roberts v. American Family Mutual Insurance Co. that the prohibition on raising new issues actually consists of several distinct rules.[22] First, courts will not review an issue if it was required to be raised under CRCP 12(b) and the party failed to raise it in the time and manner prescribed by the rule.[23] This result should be obvious because, with limited exception, defenses not raised in the answer or in a Rule 12(b) motion, if allowed, are waived.[24]In addition, courts will not review an issue if the party was required to raise it in a motion for directed verdict and failed to raise it in the time and manner prescribed by CRCP 50.[25] Similarly, courts will not review a contention of instructional error if not raised when and how CRCP 51 requires.[26] Courts also will not review a contention of evidentiary error unless the party makes a contemporaneous objection to admission of the evidence under CRE 103(a)(1).[27]
CRCP 46 includes a fairly broad statement that, at the time a court rules on an issue, a party must "make[] known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor." This requirement applies only to certain issues that, under a prior rule, must have been preserved by taking formal exceptions to the trial court’s actions.[28] At a minimum, Rule 46 does not require preservation of the following categories of trial court decisions that were not required to be included in a bill of exceptions under the prior rules: rulings on motions to dismiss and motions for judgment on the pleadings, rulings on motions for a new trial, rulings on continuances and motions for change of venue, and decisions on jury instructions.[29]
These distinct rules therefore are "not all-inclusive."[30] Accordingly, if no specific rule requires a party to raise an issue in the trial court, an appellate court should review it. From the Colorado Supreme Court’s analysis of these separate rules, at least one type of issue appears to need no preservation: legal arguments that could have been, but were not, raised in a motion for summary judgment.
In Roberts, for example, an insurer moved for summary judgment on the basis that any claims for insurance benefits under numerous automobile and motorcycle policies were limited by a so-called anti-stacking provision to the policy limit of any single policy.[31] The insureds also moved for summary judgment, asserting that these anti-stacking provisions were not conspicuous enough to be enforceable.[32] The trial court...
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