Colo. R. App. P. 8

As amended through Rule Change 2024(7), effective April 4, 2024

Rule 8 - Stay or Injunction Pending Appeal

(a) Motions for Stay.

(1) Initial Motion in District Court. A party must ordinarily move first in the district court for the following relief:

(A) a stay of the judgment or order of a district court pending appeal;

(B) approval of a supersedeas bond;

(C) an order suspending, modifying, restoring, or granting an injunction while an appeal is pending.

(2) Motion in Appellate Court; Conditions on Relief. A motion for relief under Rule 8(a)(1) may be made to the appellate court or to an appellate justice or judge.

(A) any such motion must:

(i) show that moving first in the district court would be impracticable, or

(ii) show that the district court has denied an application, or has failed to afford the relief requested, and state the reasons given by the district court for its action.

(B) The motion must also include:

(i) the reasons for granting the relief requested and the facts relied on;

(ii) originals or copies of affidavits or other sworn statements if the facts are in dispute; and

(iii) relevant parts of the record.

(C) The moving party must give reasonable notice of the motion to all parties.

(D) A motion under this Rule 8(a)(2) must be filed with the clerk but in exceptional cases where such filing would be impracticable due to the requirements of time, the motion may be made to and considered by a single justice or judge.

(E) Except as provided in Rule 8(c), the appellate court may condition relief on a party's filing a bond or other appropriate security in the district court.

(b) Proceedings Against Sureties. If a party gives security in the form of a bond or stipulation or other undertaking with one or more sureties, each surety submits to the jurisdiction of the district court and irrevocably appoints the district court clerk as the surety's agent on whom any documents affecting the surety's liability on the bond or undertaking may be served. On motion, the surety's liability may be enforced in the district court without the necessity of an independent action. The motion and any notice that the district court prescribes may be served on the district court clerk, who must mail a copy to each surety whose address is known.

(c) When Bond Not Required. The appellate court may, in its discretion, dispense with or limit the amount of bond when the appellant is an executor, administrator, conservator, or guardian of an estate and has given sufficient bond as such. The appellate court shall not require the following to furnish bond:

(1) the state;

(2) the county commissioners of the various counties;

(3) cities;

(4) towns;

(5) school districts;

(6) charitable, educational, and reformatory institutions under the patronage or control of the state; and

(7) public officials when suing or defending in their official capacities for the benefit of the public.

(d) Bond; Release of Lien or of Notice of Lis Pendens. If a money judgment has been made a lien upon real estate, the lien will be released when a bond is given. The clerk of the court that granted a stay will issue a certificate that the judgment has been stayed. The certificate may be recorded with the recorder of the county in which the real estate is situated. The certificate may also be served upon any officer holding an execution. Upon such service, all proceedings under such execution must be discontinued, and the officer must return the same in to the issuing court together with the certificate served on the officer. The return must indicate what the officer has done under the execution.

C.A.R. 8

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). This rule must be observed, and the supreme court will grant the application for supersedeas only after compliance with the rule. Alsup v. Alsup, 76 Colo. 260, 230 P. 796 (1924). Trial court's jurisdiction usually lost upon perfection of appeal. Under normal appellate procedures a trial court loses its jurisdiction over a case as soon as an appeal is perfected in an appellate court. Hylton v. City of Colo. Springs, 32 Colo. App. 9, 505 P.2d 26 (1973). But jurisdiction reinvested upon appellate court's decision. When an appellate court announces its decision to affirm, reverse, remand, or modify then a trial court is automatically reinvested with jurisdiction. Hylton v. City of Colo. Springs, 32 Colo. App. 9, 505 P.2d 26 (1973). No power to stay writ of habeas corpus. A court has no power to stay proceedings upon an order of discharge of a prisoner upon a writ of habeas corpus. Geer v. Alaniz, 137 Colo. 432, 326 P.2d 71 (1958). Court does not pass upon plaintiff's claim that the stay order was improperly entered when he did not formally protest that order by filing either a notice of appeal under C.A.R. 4 or a motion under this rule. DiMarco v. Dept. of Rev., MVD, 857 P.2d 1349 (Colo. App. 1993). Although a habeas corpus proceeding is a civil action, this rule and Rule 62, C.R.C.P., do not apply, and stays of execution are not appropriate in such a proceeding. Geer v. Alaniz, 137 Colo. 432, 326 P.2d 71 (1958). Applied in Bernstein v. Goldberg, 81 Colo. 39, 253 P. 477 (1927); Shotking v. Atchison, T. & S.F.R.R., 124 Colo. 141, 235 P.2d 990 (1951); Williams v. Guaranty Nat'l Ins. Co., 152 Colo. 457, 382 P.2d 802 (1963). II. Application for Stay or Injunction. "Supersedeas" defined. Supersedeas is merely an auxiliary process designed to supersede the enforcement of the judgment of the court below brought up on appeal for review. Monks v. Hemphill, 119 Colo. 378, 203 P.2d 503 (1949). Appeal may be had without supersedeas. The appeal and supersedeas are two separate things, and the appeal can be sustained without a supersedeas. Monks v. Hemphill, 119 Colo. 378, 203 P.2d 503 (1949). But stay of execution must be sought by supersedeas. Where a stay of execution is desired by appellant, such relief must be sought by application for supersedeas. Alden Sign Co. v. Roblee, 119 Colo. 409, 203 P.2d 915 (1949). Record must be complete before supersedeas will be granted. While the record must be complete before an application for supersedeas will be granted, in a case involving many parties and many causes of action and counterclaims, if it is complete so far as concerns those controversies in which error is assigned, it will be sufficient. Murray v. Stuart, 77 Colo. 167, 234 P. 1113 (1925). Supersedeas not granted until application made therefor. Whether or not a supersedeas should be granted will not be considered until an application is made for the writ. Ward v. Ward, 89 Colo. 396, 3 P.2d 415 (1931). Trial court may issue a stay either before or after a notice of appeal is filed. Odd Fellows Bldg. & Inv. Co. v. City of Englewood, 667 P.2d 1358 (Colo. 1983). To determine whether to stay an order denying or granting an injunction, a court must consider four factors: (1) Whether the stay applicant has made a strong showing that he or she is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Romero v. City of Fountain, __ P.3d __ (Colo. App. 2011). The probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury a plaintiff will suffer absent the stay. More of one excuses less of the other. Romero v. City of Fountain, __ P.3d __ (Colo. App. 2011). Supersedeas not granted to stay execution for costs. Where a supersedeas would serve only to stay an execution for costs application for the writ will be denied. Hunter v. Stapleton, 77 Colo. 456, 236 P. 1013 (1925). Stay of proceedings ordered. Zaharia v. County Court ex rel. County of Jefferson, 673 P.2d 378 (Colo. App. 1983). III. Bond; Sureties; When Bond Not Required. Law reviews. For article, "Bonds in Colorado Courts: A Primer for Practitioners", see 34 Colo. Law. 59 (March 2005). Trial court erred in entering an order staying all proceedings relative to enforcement of family support order without requiring appellant to file supersedeas bond. Muck v. Arapahoe County Dist. Court, 814 P.2d 869 (Colo. 1991). Charitable institution may execute supersedeas bond as principal. Buchhalter v. Solomon, 78 Colo. 227, 241 P. 718 (1925), appeal dismissed, 273 U.S. 640, 47 S. Ct. 106, 71 L. Ed. 818 (1926). Bond in form of cost bond not within rule. A bond in the form prescribed by § 13-16-101 for a cost bond is not a supersedeas bond and is not within this rule. Fifer v. Fifer, 120 Colo. 10, 206 P.2d 336 (1949). Sureties subject themselves to judgment. In entering into the bond the sureties agreed, in effect, to abide by the law permitting the entry of judgment. Buchhalter v. Solomon, 78 Colo. 227, 241 P. 718 (1925), appeal dismissed, 273 U.S. 640, 47 S. Ct. 106, 71 L. Ed. 818 (1926). Burden to show cause why the execution should not issue. In a proceeding by scire facias to obtain execution upon a judgment on a supersedeas bond, the burden is upon the surety to show cause why the execution should not issue. Bosworth v. Garwood, 79 Colo. 391, 246 P. 555 (1926). Corporation held not under patronage or control of state. Buchhalter v. Solomon, 78 Colo. 227, 241 P. 718 (1925), appeal dismissed, 273 U.S. 640, 47 S. Ct. 106, 71 L. Ed. 818 (1926).