Randy Barnhart

Heads up - Colorado appellate attorneys

Colorado statute, Section 13-4-108, was recently amended, to take effect July 31, 2013.

For Colorado supreme court review by petition for cert, there is a new time period, which is shorter than before:

(2) Within thirty TWENTY-EIGHT days after a rehearing has been refused by the court of appeals, any party in interest who is aggrieved by the judgment of the court of appeals may appeal by application to the supreme court for a writ of certiorari.

The time interval is counted forward, so the new statute provides that the new time period applies if it both "commences and ends with dates on or after July 1, 2013.

Tenth Circuit Note

Effective January 7, 2013, the US Tenth Circuit Court of Appeals is changing how the district courts are distributed between its two case management teams. Note the new contact information below:

 

TEAM ONE- Colorado, New Mexico,Wyoming & Agency

Team Phone Number: 303-335-2729

Team Email Address:ca10_team1@ca10.uscourts.gov

 

TEAM TWO- Oklahoma, Kansas, Utah & Tax

Team Phone Number: 303-335-2728

Team Email Address:ca10_team2@ca10.uscourts.gov

New rules re appearances in appellate courts

Recently, the Colorado Supreme Court promulgated he following new rules:

COLORADO APPELLATE RULES - Rule 5. ENTRY OF APPEARANCE AND WITHDRAWAL

(e) Notice of Limited Representation Entry of Appearance and Withdrawal. An attorney may undertake to provide limited representation to a pro se party involved in a civil appellate proceeding. Upon the request and with the consent of a pro se party, an attorney may make a limited appearance for the pro se party to file a notice of appeal and designation of record in the court of appeals or the supreme court, to file or oppose a petition or cross-petition for a writ of certiorari in the supreme court, to respond to an order to show cause issued by the supreme court or the court of appeals, or to participate in one or more specified motion proceedings in either court, if the attorney files and serves with the court and the other parties and attorneys (if any) a notice of the limited appearance prior to or simultaneous with the proceeding(s) for which the attorney appears. At the conclusion of such proceeding(s), the attorney’s appearance terminates without the necessity of leave of court, upon the attorney filing a notice of completion of limited appearance in the appellate court in which the attorney appeared, a copy of which may be filed in any other court, except that an attorney filing a notice of appeal or petition or cross-petition for writ of certiorari is obligated, absent leave of court, to respond to any issues regarding the appellate court’s jurisdiction. Service on an attorney who makes a limited appearance for a party shall be valid only in connection with the specific proceedings(s) for which the attorney appears. The provisions of this C.A.R. 5(e) shall not apply to an attorney who has filed an opening or answer brief pursuant to C.A.R. 31.

(f) Termination of Representation. When an attorney has entered an appearance, other than a limited appearance pursuant to C.A.R. 5(e), on behalf of a party in an appellate court without having previously represented that party in the matter in any other court, the attorney’s representation of the party shall terminate at the conclusion of the proceedings in the appellate court in which the attorney has appeared, unless otherwise directed by the appellate court or agreed to by the attorney and the party represented. Counsel may file a notice of such termination of representation in any other court.

COMMENT The purpose of C.A.R. 5(e) is to establish a procedure similar to that set forth in Colorado Rule of Civil Procedure 121 Section 1-1(5). This procedure provides assurance that an attorney who makes a limited appearance for a pro se party in a specified appellate case proceeding(s), at the request of and with the consent of the pro se party, can withdraw from the case upon filing a notice of completion of the limited appearance, without leave of court. The purpose of C.A.R. 5(f) is to make clear that when an attorney appears for a party, whom he or she has not previously represented, in an appellate court and the proceedings in that court have concluded, the attorney is not obligated to represent the party in any other proceeding on remand or in any review of the appellate court’s decision by any other court. Nothing in this provision would prevent the attorney from entering a limited or general appearance on behalf of the party in another court (for example, on a writ of certiorari to the supreme court), if agreed to by the attorney and the party.

Appellate Alert: New 10th Circuit Local Rule with Deadline

The following proposed rule may be adopted December 1, 2011, effective January 1, 2012. Note the deadline, which is not a multiple of 7!

10th Cir. R. 5.1 Reply briefs.

A party seeking to file a reply in support of a petition may file a motion to that effect. Replies may be no longer than six pages in length in a 13 point font. The motion must include the proposed reply. Motions filed under this rule must be submitted within 5 business days of service of the response.

Rule 60 Motions in the Trial Court After Filing a Notice of Appeal? Part 2

Following up on the firm's post, Rule 60 Motions in the Trial Court After Filing a Notice of Appeal? Part 1, there are timeliness issues which counsel must appreciate.

Even on remand from the court of appeals, the timeliness of a Rule 60(b) motion is governed by the 6 months period in teh rule. The Colorado Supreme Court’s decision in Se. Colorado Water Conservancy Dist. v. Cache Creek Min. Trust, 854 P.2d 167, 171 (Colo. 1993), explains, although there the proceedings there were highly convoluted.

In essence, the party seeking relief in Cache Creek argued that its Rule 60(b)(2) motion was timely filed because it was directed against the denial of a previously filed Rule 60(b)(5) motion, and not against the original judgment. Had it been directed against the former, the motion would have been timely. However, the court rejected this argument based on the face of the Rule 60(b)(2) motion, finding that the argument “lacked any substantial factual basis.”

The court reiterated that finding: “the factual basis” of the argument “is wholly insubstantial and contrary to the clear intent of” the Rule 60(b)(2) motion. 854 P.2d at 177. In effect, the court found that the Rule 60(b)(2) motion was in fact expressly directed at relief from the original judgment, and not from any “alleged fraud [which] somehow tainted the discretion of the court in denying the 60(b)(5) motion.” 854 P.2d at 171.

The court found that the Rule 60(b)(2) motion “could be timely only if it were truly directed at” the Rule 60(b)(5) motion and not at the original judgment. The case  suggests that a Rule 60(b)(2) motion can attack an “order” subsequent to the “judgment” entered on a jury verdict!

After all, Rule 60(b) provides that a motion is timely if is filed “no more than six months after the judgment, order, or proceeding was taken.” Since “judgment” and “order” are separately-listed items in the rule, there is no reason to conflate the two and make judgment and order one and the same thing.

As the Cache Creek court stated: the “standard” which must be met in order to make a Rule 60 motion timely filed is whether it in fact seeks relief from an order issued within the last 6 months, and in which case, to prevail, the further standard that “the alleged fraud somehow tainted the discretion of the court” in denying the motion for JNOV.

In this regard, note that according to Molitor,

A request for a remand to permit the trial court to rule on a motion to vacate judgment does not require the appellate court to determine the merits of the motion, but only to determine whether the motion contains sufficient allegations to satisfy the requirements of C.R.C.P. 60(b). 

795 P.2d at 269. 

Colorado - Rule 60 Motions in the Trial Court After Filing a Notice of Appeal?

Once you have filed a notice of appeal in a Colorado case, jurisdiction over most matters is transferred out of the trial court and into the court of appeals.

Hence, a motion to remand the case filed in the court of appeals is necessary if grounds for a Rule 60(b)(2) motion and/or a Rule 60(b)(5) motion for an independent action arise after filing the notice of appeal. That can happen more often what one would think given the rampant unethical conduct by big, corporate defendants and their equally well-heeled defense attorneys.

The pole star case is Molitor v. Anderson, 795 P.2d 266, 267 (Colo. 1990), which addressed the following issue:

“whether, after an appeal of a trial court’s final judgment has been perfected by the filing of a notice of appeal, the trial court retains jurisdiction to consider and deny a C.R.C.P. 60(b) motion to vacate that judgment.”

The Molitor court answered: NO. Needless to say, neither does the trial court retain jurisdiction to grant a Rule 60(b) motion.

According to Molitor:

“Once a judgment is final, . . . , trial court proceedings concerning the substance of that judgment are concluded and the appellate court assumes control over all matters pertaining to the propriety thereof. The appellate process would indeed become a quagmire of uncertainty if parties could obtain trial court alteration of rulings subject to an appeal during the pendency of that appeal.”

795 P.2d at 268.

Thus, “a trial court may not determine matters affecting the substance of a judgment once an appeal of that judgment has been perfected unless the appellate court issues an order remanding the judgment to the trial court for that purpose. Such policy emphasizes the central responsibility of appellate courts to control the course of an appeal.” Molitor, 795 P.2d at 269 (underscoring added).

Hence, once a notice of appeal is filed, a litigant must move the court of appeals for a remand first. As the Molitor court found:

While an appellate court must endure some measure of inconvenience when required to consider a motion to remand a case for trial court action, it seems appropriate that such court be informed of so significant a development as the determination by a party to an appeal that grounds exist to justify setting aside all or part of the judgment. In the absence of such information, the appellate court might determine the merits of an appeal at the same time the trial court is determining the results of a motion to vacate the judgment that forms the basis of the appeal. It must also be noted that while a trial court may be better equipped than an appellate court to evaluate quickly the merits of a motion to vacate judgment, that fact does not justify the conclusion that no remand need be required to permit a trial court to deny such a motion. 

795 P.2d at 268-69.

There is a possible exception to the requirement of a remand, namely, asking the court of appeals to grant relief as a matter of law. In the very recent opinion in In re C.L.S., 252 P.3d 556, 561 (Colo. App. 2011) cert. denied, 11 SC 261, 2011 WL 2535031 (Colo. June 27, 2011), the court found:

Where the relevant facts are undisputed, an appellate court may make an independent determination as a matter of law. See People v. Miranda–Olivas, 41 P.3d 658, 661 (Colo. 2001). Here, the undisputed facts establish such fraud as a matter of law. See Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.1989)(“A ‘fraud upon the court’ occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense.”). Thus, father was also entitled to relief under the “fraud upon the court” provision of Rule 60(b).

Next, Part 2: Timeliness Issues

New Colorado Appellate Rule - Interlocutory Review!

A new rule was recently added to the Colorado Appellate Rules which has the potential to get to the right result while a case is still at the trial level. Original petitions to the Colorado Supreme Court under Rule 21 is now not the only way to get the trial court on the right track. The thinking behind the new rule is innovative and should improve the delivery of justice and enhance the rule of law.

Rule 4.2 Interlocutory Appeals in Civil Cases

(a) Discretionary Interlocutory Appeals. Upon certification by the trial court, or stipulation of all parties, the court of appeals may, in its discretion, allow an interlocutory appeal of an order in a civil action. This rule applies only to cases governed by C.R.S. 13-4-102.1.
 
(b) Grounds for Granting Interlocutory Appeal. Grounds for certifying and allowing an interlocutory appeal are:

(1) Where immediate review may promote a more orderly disposition or establish a final disposition of the litigation; and

(2) The order involves a controlling and unresolved question of law. For purposes of this rule, an “unresolved question of law” is a 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) Procedure in the Trial Court.The party seeking to appeal shall move for certification or submit a stipulation signed by all parties within fourteen days after the date of the order to be appealed, stating that the appeal is not being sought for purposes of delay. The trial court may, in its discretion, certify an order as immediately appealable, but if all parties stipulate, the trial court must forthwith certify the order. Denial of a motion for certification is not appealable.
 
(d) Procedure in the Appellate Court. If the trial court certifies an order for an interlocutory appeal, the party seeking an appeal shall file a petition to appeal with the clerk of the court of appeals with an advisory copy served on the clerk of the trial court within fourteen days of the date of the trial court’s certification.