Colo. R. App. P. 35

As amended through Rule Change 2021(19), effective September 23, 2021
Rule 35 - Determination of Appeal
(a) Disposition of Appeal. The appellate court may, in whole or in part, dismiss an appeal; affirm, vacate, modify, reverse, or set aside a lower court judgment; and remand any portion of the case to the lower court for further proceedings. When reviewing a ruling or judgment dismissing criminal charges, the appellate court may approve or disapprove of the judgment if retrial of the defendant is prohibited. The appellate court may dismiss an appeal or affirm a lower court judgment without opinion, but it must issue a written opinion when vacating, modifying, reversing, setting aside, or remanding any portion of the lower court judgment.
(b) Equally Divided Supreme Court. When the supreme court acting en banc is equally divided in an opinion, the judgment being appealed will stand affirmed.
(c) Harmless Error. The appellate court may disregard any error or defect not affecting the substantial rights of the parties.
(d) Advancement on Docket. Any pending action may be advanced on the docket and may be disposed of in such order as the court deems appropriate. The court may make such orders relating to the time and necessity for the filing brief and for oral argument as it deems the circumstances demand.
(e) Published Opinions of Court of Appeals. A majority of all of the judges of the court of appeals shall determine which opinions of that court will be designated for official publication. They opinions shall be published in the official publication designated by the supreme court. Opinions designated for official publication must be followed as precedent by all lower court judges in the state of Colorado.

No court of appeals opinion shall be designated for official publication unless it satisfies one or more of the following standards:

(1) the opinion establishes a new rule of law, or alters or modifies an existing rule, or applies an established rule to a novel fact situation;
(2) the opinion involves a legal issue of continuing public interest;
(3) the majority opinion, dissent, or special concurrence directs attention to the shortcomings of existing common law or inadequacies in statutes; or
(4) the opinion resolves an apparent conflict of authority.
(f) Unpublished Opinions of Court of Appeals. A court of appeals opinion not designated for official publication must contain the following notation on the title page: "NOT PUBLISHED PURSUANT TO C.A.R. 35(e)."

If the supreme court grants certiorari to a court of appeals opinion not designated for official publication, and if the supreme court announces an opinion in the case, the court of appeals' opinion will not be published unless otherwise ordered by the supreme court.

(g) Effect of Denial of Writ of Certiorari. The supreme court's denial of a writ of certiorari does not constitute approval of the lower court judgment.
(h) References to Minors and Sexual Assault Victims. Opinions and orders issued by the appellate courts will refer to sexual assault victims and minors in a manner consistent with C.A.R. 32(f).

C.A.R. 35

Source: f amended and adopted June 27, 2002, effective July 1, 2002; f amended and effective February 7, 2008; e amended and effective April 5, 2010.

COMMENTS

2016

(1) Prior subsections (c), entitled, "Affirmation;" (d), entitled, "Reversal;" and (e), entitled, "Disposition of Cause;" were deleted to reflect current appellate practice, for readability, and because portions of these prior subsections addressed functions of the trial court rather than functions of an appellate court. The relevant substance of those prior subsections, however, has been relocated to new subsections (a), entitled "Disposition of Appeal;" (b) entitled "Equally Divided Supreme Court;" and (c), entitled "Harmless Error."

(2) Because prior subsections (c), (d), and (e) were deleted, prior subsection (f), entitled, "Published Opinions of the Court of Appeals," has been re-lettered to subsection (e). For readability and organization, the contents of prior subsection (f) have been divided into new subsections (e); (f), entitled, "Unpublished Opinions of the Court of Appeals;" and (g) entitled, "Effect of Denial of Writ of Certiorari."

(3) New subsection (h) is consistent with C.A.R. 32(f) and 34, and is based on the legislative requirements set forth in Colo. Rev. Stat. §§ 19-1-102 (1.7), 19-1-109(1), and 24-72-304(4)(a), and is consistent with longstanding court practice.

Annotation I. General Consideration. Law reviews. For article, "Supreme Court Proceedings: Rules 111-119 ", see 23 Rocky Mt. L. Rev. 618 (1951). For article, "Appellate Procedure and the New Supreme Court Rules", see 30 Dicta 1 (1953). For article, "A Summary of Colorado Supreme Court Internal Operating Procedures", see 11 Colo. Law. 356 (1982). For article, "Collecting Pre- and Post-Judgment Interest in Colorado: A Primer", see 15 Colo. Law. 753 (1986). Where question presented on appeal is moot, dismissal of the appeal is in order. People in Interest of P.L.V., 176 Colo. 342, 490 P.2d 685 (1971). An appeal from order of foreclosure on real property was mooted where record reveals a conscious and voluntary choice by the defendants to allow the property to be sold to satisfy the judgment. Stenback v. Front Range Financial Corp., 764 P.2d 380 (Colo. App. 1988). Appeal becomes moot if events subsequent to the filing of the appeal render the issues present moot. In re Hartley, 886 P.2d 665 (Colo. 1994). A case is moot when a judgment, if rendered, would have no practical legal effect upon the existing controversy. In re Hartley, 886 P.2d 665 (Colo. 1994). Decision on review reinvests jurisdiction in lower court. When a case is determined in the supreme court on review, the lower court is thereupon immediately reinvested with jurisdiction without the issuance of, or receipt by the clerk of the trial court, of a remittitur. Haggott v. Plains Iron Works Co., 74 Colo. 37, 218 P. 909 (1923). Remittitur is not essential. The former rule directing the clerk to issue remittitur contained no suggestion that it is essential to further proceeding in the trial court. The practice from earliest times has been for the clerk to issue the mandate only upon request. Haggot v. Plains Iron Works Co., 74 Colo. 37, 218 P. 909 (1923). Supreme court has jurisdiction to compel obedience to its remittitur to district court to require that court to show cause as to whether and in what manner remittitur had been complied with. Green v. Green, 170 Colo. 197, 460 P.2d 224 (1969). Applied in Brinker v. City of Sterling, 121 Colo. 430, 217 P.2d 613 (1950); Lewis v. Oliver, 129 Colo. 479, 271 P.2d 1055 (1954); Pettingell v. Moede, 129 Colo. 484, 271 P.2d 1038 (1954); Bohn v. Bd. of Adjustment, 129 Colo. 539, 271 P.2d 1051 (1954); Am. Nat'l Bank v. Hereford State Bank, 139 Colo. 345, 338 P.2d 1032 (1959); Colo. Interstate Gas Co. v. Logan Props. Corp., 140 Colo. 411, 344 P.2d 693 (1959); McKenzie v. People, 178 Colo. 450, 497 P.2d 1262 (1972); People v. Chavez, 179 Colo. 69, 498 P.2d 341 (1972); Thornburg v. Homestead Minerals Corp., 184 Colo. 141, 518 P.2d 941 (1974); Coen v. Boulder Valley Sch. Dist. No. RE-2, 402 F. Supp. 1335 (D. Colo. 1975); People v. Morris, 190 Colo. 215, 545 P.2d 151 (1976); Martin v. District Court, 191 Colo. 107, 550 P.2d 864 (1976); Columbine Valley Constr. Co. v. Bd. of Dirs., 626 P.2d 686 (Colo. 1981); Jackson v. Harsco Corp., 653 P.2d 407 (Colo. App. 1982); Palmer v. A.H. Robins Co., Inc., 684 P.2d 187 (Colo. 1984); Martinez v. Dixon, 710 P.2d 498 (Colo. App. 1985); Banek v. Thomas, 733 P.2d 1171 (Colo. 1986); Coors v. Sec. Life of Denver Ins. Co., 112 P.3d 59 (Colo. 2005). II. Affirmation. Findings of the trial court will not be disturbed on review unless they are clearly erroneous. C.K.A. v. M.S., 695 P.2d 785 (Colo. App. 1984), cert. denied, 705 P.2d 1391 (Colo. 1985). Affirmance of the trial court's action disposes of all issues properly presented for review. Mills v. Saunders, 30 Colo. App. 462, 494 P.2d 1309 (1972). Judgment affirmed where a retrial would result in the same judgment. Boyd v. Munson, 59 Colo. 166, 147 P. 662 (1915); Swanson v. First Nat'l Bank, 74 Colo. 135, 219 P. 784 (1923). Or when supported by substantial evidence. A determination by a quasi-judicial body is not arbitrary or capricious, and thus not an abuse of discretion, where it is supported by substantial competent evidence, and it will be affirmed on review. Kizer v. Beck, 30 Colo. App. 569, 496 P.2d 1062 (1972). Where the sufficiency of the evidence to support a guilty verdict is challenged, an appellate court must review the testimony in the light most favorable to the prosecution. If there is sufficient competent evidence to establish the essential elements of a crime, a guilty verdict will not be overturned by an appellate court even though there are conflicts and inconsistencies in the evidence. People v. Diefenderfer, 784 P.2d 741 (Colo. 1989). The court of appeals should not substitute its opinion of what damages are appropriate for that of the jury. Mere disagreement with the amount of damages awarded is not a sufficient ground to overturn an award of damages which is supported by competent evidence in the record as it is the sole province of the jury to fix fair and just damages, and only upon a showing of arbitrary or capricious jury action, or that the jury was swayed by passion or prejudice, should an appellate court overturn a jury verdict. Morrison v. Bradley, 655 P.2d 385 (Colo. 1982); Lee's Mobile Wash v. Campbell, 853 P.2d 1140 (Colo. 1993). Where the evidence is conflicting, a reviewing court should not disregard the jury's verdict, which has support in the evidence, in favor of its own view of the evidence, but must reconcile the verdict with the evidence if at all possible, and if there is any basis for the verdict, it will not be reversed for inconsistency. Lee's Mobile Wash v. Campbell, 853 P.2d 1140 (Colo. 1993). There was evidence in the record to support the jury award of zero noneconomic damages, and the fact that the jury instruction mandated that the jury "shall determine" the amount of noneconomic damages did not necessarily require an affirmative award of damages since an award of such damages was required only if the damages were caused by the petitioners' negligence. Lee's Mobile Wash v. Campbell, 853 P.2d 1140 (Colo. 1993). Deference is given to the trial court's findings of fact which will not be overturned as long as there is support for them. This is true even though a contrary position may find support in the record and even though the court might have reached a different result had it been acting as the finder of fact. People v. Thomas, 853 P.2d 1147 (Colo. 1993). Correct judgment entered for the wrong reason will be affirmed. Klipfel v. Neill, 30 Colo. App. 428, 494 P.2d 115 (1972). III. Reversal. Retrial may be ordered on liability only. On reversal of a judgment in an action for damages, the reviewing court may order retrial only upon the question of liability, holding the amount of damages to have been established on the first trial. Boyle v. Bay, 81 Colo. 125, 254 P. 156 (1927). Or on amount of damages. Where the amount of the judgment due plaintiff was determined on conflicting evidence, a reversal of the judgment will require that the amount be set aside in its entirety pending a trial court determination of the sum properly due plaintiff. Farmers Elevator Co. v. First Nat'l Bank, 30 Colo. App. 529, 497 P.2d 352 (1972) aff'd, 181 Colo. 231, 508 P.2d 1261 (1973). Mixed questions of law and fact presented for determination must be decided by the trial court, and where left undecided, the cause will be remanded for additional findings. Cook v. Cook, 74 Colo. 339, 221 P. 883 (1923). When court may direct that proper judgment be entered. Where on review the record clearly discloses the entry of a judgment by the trial court finding all issues for the plaintiff but for an erroneous sum, the cause may be remanded with directions to enter the proper judgment. Mystic Tailoring Co. v. Jacobstein, 94 Colo. 306, 30 P.2d 263 (1934). In appeal involving challenge to sales and use tax provisions of municipal code, appropriate remedy on appeal is not remand to district court for de novo review under § 29-2-106.1 since taxpayer pursued review under municipal code. Arapahoe Roofing & Sheet Metal v. Denver, 831 P.2d 451 (Colo. 1992). Judgment reversed where appeal and questions presented are moot. An ordinance passed while an action is pending on error renders the question before the supreme court moot, and a new zoning resolution adopted by the board of county commissioners even before the action is commenced renders the original action moot. Holding that the action before the lower court and the proceedings on appeal before the supreme court are on questions that are now moot, the judgment of the trial court is reversed and the cause is remanded with directions to dismiss the complaint. Bd. of Adjustment v. Iwerks, 135 Colo. 578, 316 P.2d 573 (1957). Abstract claim, as an afterthought on appeal, will not support reversal. Anderson v. People, 176 Colo. 224, 490 P.2d 47 (1971), cert. denied, 405 U.S. 1042, 92 S. Ct. 1376, 31 L. Ed. 2d 583 (1972). IV. Disposition of Cause. A. In General. Duties of trial court.Upon regaining jurisdiction, a trial court, through the use of its own enforcement procedures, is then responsible for execution on its own judgment in accordance with any directions issued by an appellate court. Hylton v. City of Colo. Springs, 32 Colo. App. 9, 505 P.2d 26 (1973). Petition for certiorari is addressed to sound judicial discretion, and denial does not constitute a determination of the issues on the merits. Menefee v. City & County of Denver, 190 Colo. 163, 544 P.2d 382 (1976). Denial of a petition for certiorari in a criminal case means nothing more than that the supreme court has declared that the case is not properly postured for further appellate review. Menefee v. City & County of Denver, 190 Colo. 163, 544 P.2d 382 (1976). B. Equally Divided Court. Affirmed by operation of law. Where one justice did not sit and the remaining six divided equally, the judgment is affirmed by operation of law. Speer v. People ex rel. Rush, 52 Colo. 325, 122 P. 768 (1912); City & County of Denver v. Gunter, 63 Colo. 69, 163 P. 1118 (1917); Menzel v. McKee Live Stock Comm'n Co., 71 Colo. 326, 206 P. 383 (1922); People v. Stapleton, 79 Colo. 629, 247 P. 1062 (1926); Craddock v. Craddock, 90 Colo. 284, 8 P.2d 1112 (1932); La Argo v. Cronbaugh, 90 Colo. 286, 8 P.2d 1112 (1932); Midland Oil Ref. Co. v. Allen, 93 Colo. 102, 23 P.2d 1119 (1933); People ex rel. Link v. Tucker, 96 Colo. 273, 42 P.2d 472 (1935); Pring v. Brown, 96 Colo. 284, 42 P.2d 607 (1935); Larson v. Kalcevic, 99 Colo. 279, 62 P.2d 572 (1936); Courtright v. Legislative Statutory Comm'n, 100 Colo. 82, 65 P.2d 710, cert. denied, 302 U.S. 695, 58 S.Ct. 13, 82 L. Ed. 537 (1937); Creel v. Pueblo Masonic Bldgs. Ass'n, 100 Colo. 281, 68 P.2d 23 (1937); Taylor v. Bd. of Control of State Indus. Sch., 105 Colo. 219, 94 P.2d 184 (1939); Snyder v. Bd. for Appointment of Civil Serv. Comm'rs, 106 Colo. 83, 101 P.2d 436 (1940); Roenfeldt v. Rinker, 108 Colo. 359, 116 P.2d 964 (1941); Butler v. Byrne, 108 Colo. 507, 120 P.2d 196 (1941); Henderson v. Anderson, 108 Colo. 529, 120 P.2d 195 (1941); Hinkley v. Oriental Ref. Co., 116 Colo. 33, 178 P.2d 416 (1947); White v. Jensen, 116 Colo. 378, 182 P.2d 139 (1947); DeWitt v. Victor Am. Fuel Co., 116 Colo. 450, 181 P.2d 816 (1947); State v. Knight-Campbell Music Co., 117 Colo. 326, 187 P.2d 931 (1947); Oestereick v. Roper, 122 Colo. 59, 220 P.2d 551 (1950); Metropolitan Life Ins. Co. v. Hoffman, 122 Colo. 431, 222 P.2d 620 (1950); Eresch v. Hines, 122 Colo. 588, 225 P.2d 59 (1950); In re McNeal's Estate, 124 Colo. 99, 234 P.2d 622 (1951); Hix v. Stanchfield, 124 Colo. 422, 238 P.2d 200 (1951); Jabelonsky v. Fike, 125 Colo. 487, 244 P.2d 1081 (1952); City & County of Denver v. Bd. of County Comm'rs, 145 Colo. 451, 359 P.2d 1031 (1961); State Dept. of Hwys. v. Biella, 672 P.2d 529 (Colo. 1983); Pease v. District Court, 708 P.2d 800 (Colo. 1985). Constitutes no precedent. A judgment by an equally divided court constitutes no precedent. People ex rel. Walker v. Stapleton, 79 Colo. 629, 247 P. 1062 (1926). Same question cannot be relitigated between the same parties merely by bringing in a different action. In re Craddock's Estate, 91 Colo. 79, 11 P.2d 807 (1932). Because judgment has the same effect as if entered with the approval of all the justices. In re Craddock's Estate, 91 Colo. 79, 11 P.2d 807 (1932). C. Error Not Affecting Substantial Rights of the Parties. Error which clearly does not prejudice substantial rights of the complaining party is not ground for reversal. Swanson v. First Nat'l Bank, 74 Colo. 135, 219 P. 784 (1923); Thuro v. Meredith, 75 Colo. 471, 226 P. 867 (1924); Myers v. Hayden, 82 Colo. 98, 257 P. 351 (1927); Parker v. Ullom, 84 Colo. 433, 271 P. 187 (1928). "Substantial right" defined. In construing this rule, as well as C.R.C.P. 61, a substantial right is one which relates to the subject matter and not to a matter of procedure and form. Sowder v. Inhelder, 119 Colo. 196, 201 P.2d 533 (1948). Variance between pleading and proof does not affect substantial rights. Hiner v. Cassidy, 92 Colo. 78, 18 P.2d 309 (1932). The variance was not such as affected the substantial right of the parties and was, therefore, such error or defect as the supreme court may disregard. Southwestern Sur. Ins. Co. v. Miller, 63 Colo. 15, 164 P. 507 (1917); Otis & Co. v. Teal, 74 Colo. 336, 221 P. 884 (1923). Harmless instruction does not affect substantial rights. Howard v. Mitchell, 27 Colo. App. 45, 146 P. 486 (1915). Improper admission of evidence to a fact which is established by other sufficient evidence does not affect substantial rights. Patterson v. People ex rel. Parr, 23 Colo. App. 479, 130 P. 618 (1913). Appellate review of trial court's determination pursuant to § 13-25-129 regarding admissibility of child's hearsay statement should be based upon record made at in limine hearing and may go beyond such record only if issue of harmless error or plain error is raised. People v. Bowers, 801 P.2d 511 (Colo. 1990). Defect in summons. Error cannot be predicated on any defect in a summons unless the defect results in prejudice. Hocks v. Farmers Union Coop. Gas & Oil Co., 116 Colo. 282, 180 P.2d 860 (1947). Receipt of verdict in absence of trial judge is technical error. Although the trial judge was not present when the verdict was received, it did not appear that any substantial rights of the defendant were violated by the trial court's procedure, and, as directed by this rule, mere technicalities would not constitute ground for reversal. Sowder v. Inhelder, 119 Colo. 196, 201 P.2d 533 (1948). V. Published Opinions of Court of Appeals. An unpublished court of appeals decision has no value as precedent. In re Ballot Title 2005-06 No. 55, 138 P.3d 273 (Colo. 2006). .

For provision on harmless error in proceedings before the trial court, see C.R.C.P. 61. .