Colo. R. App. P. 10
C.A.R. 10
Comment:
2018
[1] The rule contains the substance of former C.A.R. 11, Transmission of Record. With the adoption of the 2018 revisions, C.A.R. 11 has been deleted from the Colorado Appellate Rules
[2] The amendments are designed to provide better organization and to create a more comprehensive records rule. With the 2018 revisions, designation of the record, found in prior versions of C.A.R. 10, has been deleted from the rule.
[3] Two new forms, Designation of Transcripts (Form 8) and Motion to Supplement the Record (Form 9) were adopted with the rule change.
Annotation I. General Consideration. Law reviews. For article, "Supreme Court Proceedings: Rules 111-119 ", see 23 Rocky Mtn. L. Rev. 618 (1951). For article, "Appellate Procedure and the New Supreme Court Rules", see 30 Dicta 1 (1953). For article, "Some Observations on Colorado Appellate Practice", see 34 Dicta 363 (1957). For note, "Colorado Appellate Procedure", see 40 U. Colo. L. Rev. 551 (1968). For article, "The Problem of Delay in the Colorado Court of Appeals", see 58 Den. L.J. 1 (1980). This rule is not inherently constitutionally invalid. Almarez v. Carpenter, 347 F. Supp. 597 (D. Colo. 1972). Intent of this rule, in dealing with the preparation of transcripts, is to insure that the appellate court will be given sufficient information to arrive at a just and reasoned decision. City of Aurora v. Webb, 41 Colo. App. 11, 585 P.2d 288 (1978); People in Interest of J.L.P., 870 P.2d 1252 (Colo. App. 1994). For three-part test to determine whether a new trial is warranted as relief for an inadequate or missing court record, see Knoll v. Allstate Fire & Cas. Ins., 216 P.3d 615 (Colo. App. 2009). Trial court to supervise preparation of record. The intention of this rule is that the trial court shall supervise the preparation of the record on appeal as designated by the party seeking same. Cont'l Air Lines v. City & County of Denver, 129 Colo. 1, 266 P.2d 400 (1954). Appellant must overcome adverse judgment by record. A judgment entered by a court of general jurisdiction is presumed to be correct. A litigant suffering an adverse judgment has the burden of overcoming this presumption, and the supreme court must look to the record alone to determine whether the trial court acted properly in the premises. Laessig v. May D & F, 157 Colo. 260, 402 P.2d 183 (1965). Appellant's duty to obtain record. The party prosecuting an appeal shall do any and all things necessary under this rule to obtain the record on appeal. Cont'l Air Lines v. City & County of Denver, 129 Colo. 1, 266 P.2d 400 (1954). It is the appellant's duty to designate portions of record he deems necessary for appeal, and to see that the record is transmitted, and the appellant will not be permitted to take advantage of his own failure to designate the pertinent portions of the transcript as part of the record on appeal. Till v. People, 196 Colo. 126, 581 P.2d 299 (1978); People v. Tippett, 733 P.2d 1183 (Colo. 1987). It is the responsibility of an appellant to designate the record on appeal or such parts thereof as he deems necessary for his appeal and to ensure that the record is transmitted to the appellate court. People v. Velarde, 200 Colo. 374, 616 P.2d 104 (1980); People v. Rollins, 759 P.2d 816 (Colo. App. 1988). Duty rests upon counsel to present a complete record in cases brought to the supreme court. Nutter v. Wright, 132 Colo. 304, 287 P.2d 655 (1955). Appeal subject to dismissal for failure to comply with rule. Where a record on review fails to conform with this rule, the appeal may be dismissed either on motion or the court's own initiative. Williams v. Williams, 110 Colo. 473, 135 P.2d 1016 (1943); George W. Clayton Coll. v. District Court, 110 Colo. 365, 135 P.2d 138 (1943). A reviewing court may of its own motion dismiss a proceeding where the record is confused or incomplete. Hinshaw v. Dyer, 166 Colo. 394, 443 P.2d 992 (1968). But court has discretion to pass on questions presented. Although a record on appeal may not comply with this rule, the supreme court may, in its discretion, elect to pass upon questions presented in order that further delay and expense to the parties may be avoided. Williams v. Williams, 110 Colo. 473, 135 P.2d 1016 (1943). Appellant who does not correctly anticipate appellee's and court's conceptions of what should be included in a record should not forfeit his case. City of Aurora v. Webb, 41 Colo. App. 11, 585 P.2d 288 (1978). Presumption that trial court's findings are supported by evidence. An appellate court must presume that the trial court's findings and conclusions are supported by the evidence where the appellant has failed to provide a complete record on appeal. People v. Morgan, 199 Colo. 237, 606 P.2d 1296 (1980); People v. Alberico, 817 P.2d 573 (Colo. App. 1991). Where no transcript of evidence considered by lower court is made part of record on appeal and there is no showing to contrary, an appellate court must presume that findings are supported by evidence presented to and considered by court. People v. Gallegos, 179 Colo. 211, 499 P.2d 315 (1972). Where the record does not contain any of the trial court's instructions, a reviewing court will presume that an instruction given by the trial court correctly and clearly stated the law and that defendant's objection is that the evidence does not support the giving of the instruction. Nunn v. People, 177 Colo. 87, 493 P.2d 6 (1972). Claim not raised in trial court will not be considered on appeal. Cmty. Mgt. Ass'n v. Tousley, 32 Colo. App. 33, 505 P.2d 1314 (1973). An issue not before the trial court in the motion for new trial will not be considered on appeal. Cady v. City of Arvada, 31 Colo. App. 85, 499 P.2d 1203 (1972). Ineffective assistance of counsel claim procedurally barred where appellant failed to specially designate on appeal any and all exhibits that were necessary to a resolution of the claim. Bunton v. Atherton, 613 F.3d 973 (10th Cir. 2010). Defendant cannot bottom error upon occurrence in a portion of the trial which he has specifically agreed is not to be reported, for there is no way for an appellate court to review the alleged error. Taylor v. People, 176 Colo. 316, 490 P.2d 292 (1971). Issue must be raised by parties, not "amicus curiae". Where issue is not raised by parties to appeal, but is raised in brief of "amicus curiae" issue will not be considered by appellate court. Eugene Cervi & Co. v. Russell, 31 Colo. App. 525, 506 P.2d 748 (1972), aff'd, 184 Colo. 282, 519 P.2d 1189 (1974). Error cannot be asserted on prosecution's evidence alone. Where upon trial court's denial of defendant's motion for acquittal at close of people's case, defendant proceeds to offer evidence warranting submission of case to jury, defendant cannot assert error on people's evidence alone. People v. Olinger, 180 Colo. 58, 502 P.2d 79 (1972). Applied in People ex rel. Dunbar v. South Platte Water Conservancy Dist., 139 Colo. 503, 343 P.2d 812 (1959); Hinshaw v. Dept. of Welfare, 157 Colo. 447, 403 P.2d 206 (1965); Schroeder v. Bd. of County Comm'rs, 152 Colo. 313, 381 P.2d 820 (1963); Threadgill v. Capra, 161 Colo. 453, 423 P.2d 318 (1967); In re People in Interest of A.R.S., 31 Colo. App. 268, 502 P.2d 92 (1972); People v. Slender Wrap, Inc., 36 Colo. App. 11, 536 P.2d 850 (1975); Tucker v. Shoemaker, 190 Colo. 267, 546 P.2d 951 (1976); Lemier v. Real Estate Comm'n, 38 Colo. App. 489, 558 P.2d 591 (1976); C.M. v. People in Interest of J.M., 198 Colo. 436, 601 P.2d 1364 (1979); Augustin v. Barnes, 626 P.2d 625 (Colo. 1981); In re Edilson, 637 P.2d 362 (Colo. 1981). II. Composition of Record. A. In General. Purpose of the notice of appeal is to require the clerk of the court in which the judgment complained of is entered to certify the record for review. Hull v. Denver Tramway Corp., 97 Colo. 523, 50 P.2d 791 (1935); Wheeler Kelly Hagny Trust Co. v. Williamson, 111 Colo. 515, 143 P.2d 685 (1943). This rule retains a vestige of the bill of exceptions procedure not contained in the federal rules, for section (a) requires certification of the reporter's transcript by the trial judge, but Federal Rule of Appellate Procedure 10(a) has no such requirement. Almarez v. Carpenter, 347 F. Supp. 597 (D. Colo. 1972). The right to an appeal is not denied by the absence of written findings of fact or conclusions of law in the record. Neither C.R.C.P. 52(a) nor this rule, requires written findings of fact and conclusions of law. Dunbar v. District Court, 131 Colo. 483, 283 P.2d 182 (1955). Trial court's findings held adequate for purpose of appellate review. In re People in Interest of D.S., 31 Colo. App. 300, 502 P.2d 95 (1972). No requirement that appellate record be all inclusive. This rule does not require that every folio with any conceivable relationship to an issue raised on appeal be designated as part of the appellate record. Rather, this rule gives the appellant the discretion to determine what is necessary, and the appellant himself may, if it appears he has not included enough, supplement the record; or an appellee who feels that the designated record is lacking in some essential respect may file and serve on the appellant a designation of additional parts of the record to be included. City of Aurora v. Webb, 41 Colo. App. 11, 585 P.2d 288 (1978). Certification of the record is an official act of the inferior tribunal. Civil Serv. Comm'n v. Doyle, 174 Colo. 149, 483 P.2d 380 (1971). And is not necessarily contingent upon certification of the transcript of the proceedings by a certified shorthand reporter. Civil Serv. Comm'n v. Doyle, 174 Colo. 149, 483 P.2d 380 (1971). Judicial notice may generally not be taken of municipal ordinances or resolutions, and thus, it is a party's responsibility to introduce into the record copies of municipal ordinances or resolutions on which reliance is placed. Concrete Contractors v. City of Arvada, 621 P.2d 320 (Colo. 1981). Where the district court considered the provisions of a city's charter, a municipal ordinance, and a municipal resolution in reaching its decision, the court of appeals abused its discretion in failing to ensure that those provisions of municipal law were made a part of the record in the case. Concrete Contractors v. City of Arvada, 621 P.2d 320 (Colo. 1981). B. Judgment. "Judgment" construed. To constitute a judgment there must be an express adjudication to that effect, but, subject to the requirements of statute or court rule or practice, no particular form or verbal formula is required in a court proceeding to render its order a judgment, provided the rights of the parties may be ascertained therefrom. Jones v. Galbasini, 134 Colo. 64, 299 P.2d 503 (1956). Inclusion of the judgment in the record is mandatory. J. & R. A. Savageau, Inc. v. Larsen, 117 Colo. 229, 185 P.2d 1012 (1947); Horlbeck v. Walther, 131 Colo. 36, 279 P.2d 434 (1955). French v. Haarhues, 132 Colo. 261, 287 P.2d 278 (1955); Nutter v. Wright, 132 Colo. 304, 287 P.2d 655 (1955); Abbott v. Poynter, 153 Colo. 147, 385 P.2d 120 (1963). Failure to include judgment requires dismissal. Without a compliance with this rule requiring the inclusion of the judgment in the record, there is nothing for this court to review; consequently, an order of dismissal should be entered. J. & R. A. Savageau, Inc. v. Larsen, 117 Colo. 229, 185 P.2d 1012 (1947); Horlbeck v. Walther, 131 Colo. 36, 279 P.2d 434 (1955). Unless a final judgment appears in the record, the appeal will be dismissed. Sutley v. Davis, 131 Colo. 75, 279 P.2d 848 (1955); French v. Haarhues, 132 Colo. 261, 287 P.2d 278 (1955); Nutter v. Wright, 132 Colo. 304, 287 P.2d 655 (1955). Where the record did not disclose any final judgment entered in the court below in violation of this rule, there was nothing presented for review. Howard v. Am. Law Book Co., 121 Colo. 5, 212 P.2d 1006 (1949). Litigant has duty to ensure record contains proper judgment. The entry of judgment upon the court's order is a ministerial duty of the clerk, but if a litigant desires a review on appeal, it is his duty to see that the record on appeal is properly prepared and contains a final judgment; otherwise dismissal will follow. French v. Haarhues, 132 Colo. 216, 287 P.2d 278 (1955); Nutter v. Wright, 132 Colo. 304, 287 P.2d 655 (1955). It is the duty of one who seeks review in the supreme court to see to it that an actual judgment has been pronounced by the trial court and entered by the clerk and that such judgment appears in the record on appeal. Jones v. Galbasini, 134 Colo. 64, 299 P.2d 503 (1956); Abbott v. Poynter, 153 Colo. 147, 385 P.2d 120 (1963). Ruling is not substitute for judgment. A ruling by the trial court at the close of plaintiff's evidence granting a motion to dismiss and dispensing with the motion for new trial does not rise to the dignity of a judgment, and its inclusion in the record is not a substitute for the requirement of this rule that the record must include the judgment to be reviewed. Jones v. Galbasini, 134 Colo. 64, 299 P.2d 503 (1956); Abbott v. Poynter, 153 Colo. 147, 385 P.2d 120 (1963). Where the designation of record on error requests that the record include the judgment entered and the direction for entry of the same judgment, the record contains the "order and judgment" and the order to the clerk of the court for entry of judgment, and this rule requires no more. Flournoy v. McComas, 175 Colo. 526, 488 P.2d 1104 (1971). C. Reporter's Transcript. Compliance with rule imperative. Compliance with the rules in the preparation, certification, and lodging of the transcript is imperative if it is desired to make it a part of the record on appeal. Freeman v. Cross, 134 Colo. 437, 305 P.2d 759 (1957). Transcript is not an absolute necessity in the reviewing court. Almarez v. Carpenter, 173 Colo. 284, 477 P.2d 792 (1970). Because it is only part of record. The reporter's transcript is not the record on appeal, but only a part thereof. Cont'l Air Lines v. City & County of Denver, 129 Colo. 1, 266 P.2d 400 (1954). Transcript is not, by definition, a writ, process, or proceeding. Almarez v. Carpenter, 173 Colo. 284, 477 P.2d 792 (1970). Only relevant portions of the trial proceedings need be included in the record, as may be necessary to present the issues on appeal. Almarez v. Carpenter, 173 Colo. 284, 477 P.2d 792 (1970); Almarez v. Carpenter, 347 F. Supp. 597 (D. Colo. 1972). Transcript must be certified by the judge. Hudson v. Am. Founders Life Ins. Co., 151 Colo. 54, 377 P.2d 391 (1962). Authentication is judicial act. In the authentication of the full transcript, the trial judge acts as a judge under the solemnity of his official oath, and is presumed to have faithfully and honestly performed his duty. Hudson v. Am. Founders Life Ins. Co., 151 Colo. 54, 377 P.2d 391 (1962). It is presumed that a court acts under the solemnity of its oath in determining the authenticity of the transcript. Churning v. Staples, 628 P.2d 180 (Colo. App. 1981). When certified transcript considered true. A transcript of the record as originally prepared by the reporter which is authenticated by a certificate signed by the trial judge, and transmitted to the supreme court under the seal of the clerk of the trial court, is to be considered true as if the parties had agreed to it. Hudson v. Am. Founders Life Ins. Co., 151 Colo. 54, 377 P.2d 391 (1962). Imperfection in a reporter's transcript cannot be cured by guesswork or by indulging in inferences or presumptions. Hinshaw v. Dyer, 166 Colo. 394, 443 P.2d 992 (1968). Uncertified transcript of evidence filed with reviewing court is not properly before it. Stuckman v. Kasal, 158 Colo. 232, 405 P.2d 948 (1965). Uncertified transcript stricken. Rechnitz v. Rechnitz, 135 Colo. 165, 309 P.2d 200 (1957). Lacking transcript, support of findings presumed. There being no reporter's transcript properly before the supreme court for consideration due to untimely filing, the regularity of the judgment and support of the findings of fact by the evidence must be presumed. Bonham v. City of Aurora, 133 Colo. 276, 294 P.2d 267 (1956). Where a transcript of the evidence not filed pursuant to this rule cannot be considered because of the trial judge's justifiable refusal to certify it, the regularity of the judgment and support of it in evidence must be presumed. Stuckman v. Kasal, 158 Colo. 232, 405 P.2d 948 (1965). In the absence of a transcript, the supreme court is bound to presume that the findings and conclusions of the trial court are correct and that the evidence presented supports the judgment. Cox v. Adams, 171 Colo. 37, 464 P.2d 513 (1970); Furer v. Allied Steel Co., 174 Colo. 171, 483 P.2d 212 (1971). Unless there is before the supreme court a certified transcript of the proceedings, the supreme court is unable to state that the trial court abused its discretion or that it was arbitrary and capricious. Rechnitz v. Rechnitz, 135 Colo. 165, 309 P.2d 200 (1957). Where there is no transcript before the court on appeal, the regularity of the trial court's judgment and the competency of the evidence upon which that judgment is based must be presumed. Oman v. Morris, 28 Colo. App. 124, 471 P.2d 430 (1970). Where no transcript is provided on appeal the court must look to the record alone to determine whether the trial court acted properly. Statements made in the briefs of litigants cannot supply that which must appear in a certified record. Loomis v. Seely, 677 P.2d 400 (Colo. App. 1983). Reconstruction of the record in the trial court is not appropriate when the precise language of the testimony is critical. People v. Killpack, 793 P.2d 642 (Colo. App. 1990). Where defendant's argument on appeal is ascertainable from the existing record and the record is sufficient for appellate review, a complete transcript is unnecessary for purposes of reconstructing the record for one of the days during trial. People v. Jackson, 98 P.3d 940 (Colo. App. 2004). The statements of counsel may not substitute for that which must appear of record. Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo. App. 1987). Litigant must make his own arrangements with the reporter if he desires a transcript. Almarez v. Carpenter, 173 Colo. 284, 477 P.2d 792 (1970). Transcript fees may not be waived by court. The preparation of a transcript by a reporter of his notes is a service which is not covered by his salary. Hence, the fees for such service are not payable to the court and the court cannot waive them. Almarez v. Carpenter, 173 Colo. 284, 477 P.2d 792 (1970). Free transcript need not be provided when the furnishing of a transcript would be a vain and useless gesture. Snavely v. Shannon, 182 Colo. 223, 511 P.2d 905 (1973). Since the provisions of subsections (c) and (d) provide for a constitutionally permissible alternative method of proceeding on appeal where no reporter's transcript is available, there is no deprivation of due process or equal protection because indigents cannot obtain a cost-free reporter's transcript. Almarez v. Carpenter, 347 F. Supp. 597 (D. Colo. 1972). And denial does not preclude appellate remedy. The denial of a request for a free transcript does not deny an indigent litigant any appellate remedy. Almarez v. Carpenter, 173 Colo. 284, 477 P.2d 792 (1970). Or deny constitutional right. By virtue of the waiver of costs provided by § 13-16-103, and the alternative methods of furnishing a trial court record provided by this rule, courts of justice, both trial and appellate, are "open" and available to the indigent litigant, and there is no denial of any constitutional right embraced within the language or interpretation of § 6 of art. II, Colo. Const.Almarez v. Carpenter, 173 Colo. 284, 477 P.2d 792 (1970). D. Alternatives to Transcript; Agreed Statement. Reporter's transcript is not only means provided by sections (a) through (e) of this rule for preserving and presenting to the appellate courts alleged error involving evidentiary or factual issues. Almarez v. Carpenter, 347 F. Supp. 597 (D. Colo. 1972). Requirements in circumstances in which stenographic transcipt unavailable. Appellant must prepare a statement from recollection that is first submitted to trial court for approval. If it is necessary to add to record parts of evidence or proceedings that were not recorded by the reporter, the provisions of section (c) must be followed. Where there was no compliance with this rule, the appellate court has an inadequate basis to evaluate the parties' claims and the trial court's ruling. Halliburton v. Pub. Serv. Co., 804 P.2d 213 (Colo. App. 1990); In re McSoud, 131 P.3d 1208 (Colo. App. 2006); Knoll v. Allstate Fire & Cas. Ins., 216 P.3d 619 (Colo. App. 2009). Nothing in section (c) prohibits a trial court from using its own notes or recollection in record reconstruction. People v. Jackson, 98 P.3d 940 (Colo. App. 2004). The trial court in doing so in an impartial manner eliminates any need for the trial judge to testify before a different judge regarding the reconstruction to maintain impartiality. People v. Jackson, 98 P.3d 940 (Colo. App. 2004). Duty to follow procedures of this rule if no transcript available. An appellant is required to take the necessary steps to provide an adequate record for review. In those circumstances in which a stenographic transcript is not available, section (c) provides that the appellant should prepare a statement of the evidence or proceedings from the best available means, serve the statement upon opposing counsel for comments and changes, and then submit the final statement to the trial court for settlement, approval, and inclusion in the record on appeal. In the event the parties are unable to reach agreement concerning the contents of this statement, section (d) provides a mechanism for resolution of these differences. People v. Conley, 804 P.2d 240 (Colo. App. 1990). Sections (c), (d), and (e) were promulgated specifically to reduce the cost of appellate review to the litigants and to conserve review time by the court itself. Almarez v. Carpenter, 173 Colo. 284, 477 P.2d 792 (1970); Almarez v. Carpenter, 347 F. Supp. 597 (D. Colo. 1972). Section (e) of this rule insures adequate consideration of any issue involving evidentiary or factual material. Almarez v. Carpenter, 173 Colo. 284, 477 P.2d 792 (1970). Statements made in briefs insufficient to establish record. Statements made in briefs of litigants cannot supply what must appear from a certified record or an agreed statement. Laessig v. May D & F, 157 Colo. 260, 402 P.2d 183 (1965); Hinshaw v. Dyer, 166 Colo. 394, 443 P.2d 992 (1968); McCall v. Meyers, 94 P.3d 1271 (Colo. App. 2004). Although this rule does not on its face apply to appellate review of an administrative agency decision, the underlying principle is applicable to such review. Earl v. District Court, 719 P.2d 321 (Colo. 1986); Schaffer v. District Court, 719 P.2d 1088 (Colo. 1986). III. Correction or Modification of Record. Certification to the transcript of the proceedings is final. Hudson v. Am. Founders Life Ins. Co., 151 Colo. 54, 377 P.2d 391 (1962). This is true where the objectors produced no evidence or sworn testimony contradicting the transcript as finally certified and approved by the trial judge during the lengthy hearing on their objections. Hudson v. Am. Founders Life Ins. Co., 151 Colo. 54, 377 P.2d 391 (1962). Inaccuracies in certified transcript were not prejudicial. Although each of 98 inaccuracies in the certified transcript does alter the particular sentence somewhat, reviewing all of the changes elicited at the evidentiary hearing before the trial court, the supreme court concluded that reasonable men, considering the transcript in its entirety, would be compelled to find that the content of the transcript is not materially altered. Since this evidence showed no errors of any substance and since appellee did not show that the corrected record was in any manner false or untrue, he was not prejudiced by the changes and the transcript is a fair and accurate record of the civil service commission's proceedings which may be reviewed. Civil Serv. Comm'n v. Doyle, 174 Colo. 149, 483 P.2d 380 (1971). Although the juvenile court was not the proper forum to resolve a motion to narrow the record on appeal which had been designated pursuant to this rule, any error arising from the limitation imposed by the trial court was, under the circumstances, harmless error. People in Interest of J.L.P., 870 P.2d 1252 (Colo. App. 1994). Nothing in the plain language of this rule precludes an appellate court from considering a motion to correct a misstatement in the record after an opinion has been announced. It was reasonable for the trial court to correct the record and an injustice would occur here if an appeal were decided on the basis of an incorrect record. People v. Wolfe, 9 P.3d 1137 (Colo. App. 1999). Court rejected defendant's argument that People's attempt to correct the record was barred by doctrine of laches and waiver. Trial court properly concluded that the interest in finality of the opinion was outweighed by the importance of ensuring an accurate result on appeal. People v. Wolfe, 9 P.3d 1137 (Colo. App. 1999).
For transmission of transcript to appellate court, see C.A.R. 11; for inclusion of cost of reporter's transcript in taxable costs of appeal, see C.A.R. 39.