Randy Barnhart

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. 

Federal Courts Must Limit Civil Cases Which Are Sealed

This past week, the Judicial Conference of the United States adopted a policy which seeks to limit the civil cases which federal courts put under seal. The Conference is composed of Senior Circuit Judges and was created by Congress in 1922 to serve as the top policy-maker for the administration of the federal courts.

According to the new policy, "an entire civil case file should only be sealed when . . . sealing . . . is required by statute or rule or justified by a showing of extraordinary circumstances and the absence of narrower feasible and effective alternatives such as sealing discrete documents or redacting information, so that sealing an entire case file is a last resort." An order which seals a civil case in its entirety should include findings which justify the seal, and any seal should be lifted upon a determination that the initial reason is no longer operative.

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