Anderson v. Molitor
| Decision Date | 13 October 1988 |
| Docket Number | No. 87CA0480,87CA0480 |
| Citation | 770 P.2d 1305 |
| Parties | Donald L. ANDERSON, Plaintiff-Appellee, v. Victor D. MOLITOR and Molitor Industries, Inc., Defendants-Appellants. . III |
| Court | Colorado Court of Appeals |
Miller & Associates, P.C., James R. Miller, Netzorg & McKeever, P.C., J. Nicholas McKeever, Jr., Gordon W. Netzorg, Denver, for plaintiff-appellee.
Dickinson & Herrick-Stare, P.C., Gilbert A. Dickinson, Leonard M. Cooper, Denver, for defendants-appellants.
Victor D. Molitor and Molitor Industries, Inc., defendants, appeal the trial court's denial of their C.R.C.P. 60(b) motion for relief from judgment. We affirm.
In mid-July 1986, the trial court entered a judgment on a jury verdict against defendants, who thereafter filed a timely motion for new trial under C.R.C.P. 59, claiming that the court had committed instructional error and had improperly excluded certain testimony during the course of the trial. However, because of various requests by the parties for extensions of time for the filing of legal memoranda, this motion was not denied by that court until November 17, 1986--a date well beyond the 60-day period provided by C.R.C.P. 59(j) for a trial court to dispose of such a motion. Thus, this motion was deemed to have been denied on October 6, 1986. Baum v. State Board for Community Colleges & Occupational Education, 715 P.2d 346 (Colo.App.1986).
As a result of this delay, the notice of appeal that defendants filed with this court was untimely, and, although they argued before us that the untimeliness of the notice was the result of "excusable neglect" and involved "unique circumstances" under Converse v. Zinke, 635 P.2d 882 (Colo.1981), we rejected these arguments and dismissed their appeal. Anderson v. Molitor, 738 P.2d 402 (Colo.App.1987).
While that appeal was pending, however, defendants filed their unverified motion under C.R.C.P. 60(b) in the trial court, asking that court to vacate, and then immediately to re-enter, the judgment, so as to allow them to file a new notice of appeal with this court. After we entered our order of dismissal, but before the time set for the filing of any petition for rehearing had expired, the district court denied defendants' C.R.C.P. 60(b) motion, finding that they had failed to demonstrate any "excusable neglect" under C.R.C.P. 60(b)(1). It also concluded that "failure to timely file an appeal is not a sufficient ground to justify extraordinary relief from a judgment" under C.R.C.P. 60(b)(5).
Later, we denied defendants' petition for rehearing, the supreme court refused their request for a writ of certiorari, and our mandate, returning the cause to the trial court, issued.
Without arguing the point, defendants initially suggest that the trial court may have lacked jurisdiction to act upon their C.R.C.P. 60(b) motion, because its order was entered while their appeal was still pending before this court and before this court's mandate was issued. We conclude, however, that the trial court had proper jurisdiction to deny the motion.
It is true that, as a general rule, once a proper appeal is filed with an appellate court, a trial court is without jurisdiction to enter any order that enlarges, diminishes, or changes the rights or obligations of the parties arising out of the judgment from which the appeal has been taken, absent an order of remand from the appellate court. Rivera v. Civil Service Commission, 34 Colo.App. 152, 529 P.2d 1347 (1974). See Schnier v. District Court, 696 P.2d 264 (Colo.1985). This does not mean that an appeal divests the trial court of jurisdiction over all matters that might arise, however.
In Rivera, this court held that a trial court did not have jurisdiction to modify the terms of a preliminary injunction while an appeal from that injunction was pending. In doing so, however, we adopted the rule, approved by several federal courts, that the trial court did retain jurisdiction to deny a motion to modify the injunction's terms; it is only if the trial court concludes that the motion has merit that an order of remand is required to be issued out of this court in order to re-invest the trial court with jurisdiction to grant relief from the injunction's terms.
It appears that a majority of the federal courts of appeal that have passed upon this issue have adopted a similar rule for the disposition of motions under Fed.R.Civ.P. 60(b) during the pendency of appeals. Under these decisions, the trial court retains jurisdiction to deny such motions, but an order of remand is required if such a motion is to be granted. Textile Banking Co., Inc. v. Rentschler, 657 F.2d 844 (7th Cir.1981). See generally Annot., 62 A.L.R.Fed. 165 (1983).
Since such a rule has already been adopted by this court for motions to modify injunctions, we now extend the ruling in Rivera to make it applicable to all C.R.C.P. 60(b) motions that request modification or vacation of the order or judgment being appealed. We hold, then, that a trial court continues to retain jurisdiction to consider and to deny such motions, but that it lacks jurisdiction to take any action that would modify or vacate the order or judgment, absent an order for partial remand entered by the appellate court. Thus, the trial court here retained jurisdiction to enter the order of denial about which defendants complain.
Defendants assert that the trial court abused its discretion in denying their C.R.C.P. 60(b) motion to vacate. We disagree.
A C.R.C.P. 60(b) motion cannot be used to circumvent the operation of C.R.C.P. 59(j). Sandoval v. Trinidad Area Health Ass'n, Inc., 752 P.2d 1062 (Colo.App.1988); see Cavanaugh v. State Department of Social Services, 644 P.2d 1 (Colo.1982), appeal dismissed, 459 U.S. 1011, 103 S.Ct. 367, 74 L.Ed.2d 504 (1982). The sole exception that has been established is when the C.R.C.P. 60(b) motion is based upon "extraordinary circumstances" and involves "extreme situations." Canton Oil Corp. v. District Court, 731 P.2d 687 (Colo.1987) ().
Here, defendants did not file their C.R.C.P. 60(b) motion in order to obtain a new trial; their motion specifically requested the...
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