CHAPTER 12 POST-TRIAL PROCEDURE AND APPEAL
| Jurisdiction | United States |
(Dec 1989)
POST-TRIAL PROCEDURE AND APPEAL
Welborn Dufford Brown & Tooley, P.C.
Denver, Colorado
I. INTRODUCTION.
This paper will discuss three areas which relate to post-trial practice and appeal:
1. Identifying and preserving issues for appeal;
2. Post-trial relief and execution; and
3. Preparation and presentation of the appeal.
Because it is this writer's opinion that the appeal process begins long before the filing of the formal notice of appeal, the paper will initially examine matters which influence the appellate process but which have their genesis during the trial process. Whether you are the "winner" or "loser" at trial, the strength and the merits of the trial court decision will often be supported or undermined by issues which are identified (or missed) at trial.
The paper will then outline general concepts and concerns respecting the process of collecting and staying the enforcement of a judgment. In most cases, the end of trial signals the first time when a successful plaintiff can actually begin tasting the fruits of its victory; i.e., through execution on or enforcement of the judgment. Due to the poor economy in many of the western states, it is especially
[Page 12-2]
important that the practitioner be mindful of the methods for preserving the viability of a judgment pending the appeal, either through direct execution or adequate security.
Finally, the paper will address basic issues relating to the preparation and presentation of an appeal, along with a broad review of the standards of review for an appeal.
II. IDENTIFYING AND PRESERVING APPELLATE ISSUES.
A. During Trial.
Where the outcome of a case depends upon the construction of a contract, the interpretation of the legal effect of admitted facts or the legal sufficiency of the claims or defenses in a case, the practitioner may raise these issues at the trial court level and preserve the matters for appeal.
The scope of appellate review is generally limited to matters raised at trial. Any error that is raised on appeal must appear in the trial court record. The aggrieved party must have objected to the allegedly erroneous ruling at the trial court. Errors to which no objection is made and arguments which are not raised at trial, generally cannot be raised for the first time on appeal.
In National Advertising v. Arizona Department of Transportation, the court stated: "Our review is limited to the record on appeal. We can consider only those matters which are presented to us." 126 Ariz. 542, 617 P.2d 50, 52 (Ariz. App. 1980). An opposing party should not have to defend a theory or issue for the first time, when the issue or theory was not presented at trial. A change in theory is permitted
[Page 12-3]
when it is only a question of law and when a refusal by the court to consider it would result in a miscarriage of justice, Ward v. Taggart, 336 P.2d 534, 537-8 (Cal. 1959).
1. Summary Judgment.
Summary judgment attempts to identify issues early on and to resolve cases in a more efficient and less expensive manner than a full trial by forcing the court to rule at an early date on issues which will ultimately decide the outcome of the case. A summary judgment is granted only when there is no real dispute over the facts that are central to a claim or a defense. The court in Cote v. A.J. Bayless Markets, Inc., 128 Ariz. 438, 626 P.2d 602, 604 (Ariz. App. 1981), discussed that when reviewing a summary judgment, the court must "view the evidence in the light most favorable to the party opposing the motion and give that party the benefit of all reasonable inferences from the evidence."2
2. Directed Verdict.
A motion for directed verdict challenges the sufficiency of your opponent's evidence and preserves the right of a party to claim on appeal that the evidence produced by the opposing side was insufficient to support a judgment in favor of that party. It is typically presented by the defendant at the close of the plaintiff's case. A motion for directed
[Page 12-4]
verdict is similar to a motion for summary judgment in that it challenges the legal sufficiency of the opposing party's case and views the evidence in a light most favorable to the opposing side. The motion argues that the evidence is insufficient as a matter of law, or that no genuine issue of material fact exists. In Control, Inc. v. Mountain States Telephone and Telegraph Company, 32 Colo. App. 384, 513 P.2d 1082, 1084 (1973), the court stated that a motion for a directed verdict should not be granted unless the court concludes that "reasonable men could not disagree and that no evidence or inference had been received at trial upon which a verdict against the moving party could be sustained."
There are several different standards for evaluating the merits of a motion for directed verdict: the scintilla and the substantial evidence test. Under the scintilla test, the judge will deny the motion and refer the case to the jury if there is any (scintilla) evidence on which the jury might possibly render a verdict for the non-movant, Hanson v. Couch, 360 So.2d 942 (Ala. 1978). Using the substantial evidence test, the court will grant the motion unless there is sufficient or substantial evidence suggesting that the jury should decide for the non-movant, Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 53 S.Ct. 391, 77 L.Ed. 819 (1933). A final standard involves determining whether the plaintiff's case has been proven by something close to a preponderance of the evidence, viewing that evidence most favorably to the
[Page 12-5]
plaintiff at the close of its case. Olsen v. Progressive Music Supply, Inc., 703 F.2d 432 (10th Cir. 1983).
In reviewing a judgment entered on a directed verdict, the appellate court will view the evidence in the light most favorable to the party against whom the verdict was directed. Ce Buzz, Inc. v. Sniderman, 171 Colo. 246, 466 P.2d 457, 458 (1970). When evaluating whether a particular movant has met the directed verdict's standard, a court may also be influenced by whether the opposing party had the burden of proof as well as whether the opponent was in a position to present more evidence. Id.3
3. Objections to Jury Instructions
Rule 51 of the Colorado Rules of Civil Procedure governs instructions to juries. Rule 51 requires that any objection to a proposed instruction be made before the instructions are given to the jury. Any objections made after that time will not provide proper grounds for appellate review, Ross v. Colorado National Bank, 170 Colo. 463, 463 P.2d 882 (1969). In Blain v. Yockey, 117 Colo. 29, 184 P.2d 1015 (1947), the court stated that any objection which counsel for appellant may have had by reason of the trial court's refusal to give his tendered instruction, "was waived when he expressly
[Page 12-6]
stated that the record should show that he had no objections to the instructions." 117 Colo. at 28.
To assure that an objection to a jury instruction is preserved for appellate review, counsel should make a record during the trial of the objection. This should take the form of a precise statement of the basis for the objection. An alternative instruction should also be tendered. In First National Bank of Canon City v. Campbell, 198 Colo. 344, 599 P.2d 915 (1979), the court stated that parties must object to jury instructions before the instructions are given to the jury. The court in Blue Flame Gas, Inc. v. Van Hoose, 679 P.2d 579 (Colo. 1984), stated that a general objection which states no ground of error is equivalent to no objection at all; but where the objection sufficiently directs the court's attention to asserted error, the objection to the instruction is preserved.
B. Motions for New Trial and Judgment Notwithstanding the Verdict.
1. New Trial Motions.
Motions for a new trial should be filed with the trial court, although some states also allow the motion to be filed with the appellate court. The appellate courts prefer to have the trial courts rule on these motions, as the trial courts are in the best position to make a ruling. In Hill v. Cherry, 379 So.2d 590, 592 (Ala. 1980), the court stated:
[g]ranting or refusing a motion for new trial rests within the sound discretion of the trial court; the exercise of that discretion carries with it a presumption
[Page 12-7]
of correctness which will not be disturbed by this court unless some legal right was abused and the record plainly and palpably shows the trial court was in error.
When reviewing a trial court's ruling on a new trial motion, the appellate court will use an abuse of discretion standard. Reversals of new trial rulings occur only when the appellate court finds that the trial judge was wrong as a matter of law. Estate of Sheldon v. Huffman, 75 Cal. App. 3rd 364, 142 Cal. Rptr. 119, 125 (1977).
Under the Colorado Rules of Civil Procedure, Rule 59, grounds which may be asserted as basis for a new trial are as follows:
(1) Any irregularity in the proceedings by which any party was prevented from having a fair trial;
(2) Misconduct of the jury;
(3) Accident or surprise;
(4) Newly discovered evidence;
(5) Excessive or inadequate damages; or
(6) Error in law.
Rules containing these, or similar enumerated bases, have been broadly construed to allow a new trial where the verdict is generally against the weight of the evidence. See Wright and Miller, Federal Practice and Procedure, § § 2805-2810. In ruling on a motion for new trial, a court has discretion to set aside a verdict and order a new trial if it finds that the verdict is against the preponderance of the evidence. Id.
[Page 12-8]
If a trial court grants a new trial, the appellate courts appear to give great deference to that decision on the grounds that it involves a question of fact. The standard of review is whether the court abused its discretion in granting a new...
To continue reading
Request your trial