Molitor v. Anderson, 89SC13

• Decision Date: 16 July 1990
• Docket Number: No. 89SC13,89SC13
• Citation: 795 P.2d 266
• Parties: Victor D. MOLITOR and Molitor Industries, Inc., Petitioners, v. Donald L. ANDERSON, Respondent.
• Court: Colorado Supreme Court

Page 266

795 P.2d 266

5 A.L.R.5th 1091

Victor D. MOLITOR and Molitor Industries, Inc., Petitioners, v. Donald L. ANDERSON, Respondent.

No. 89SC13.

Supreme Court of Colorado En Banc.

July 16, 1990.

As Corrected July 23, 1990.

Rehearing Denied Aug. 27, 1990.

Dickinson, Everstine, Kelly & Prud'Homme, P.C., Gilbert A. Dickinson, Leonard M. Cooper, Denver, for petitioners.

Netzorg & McKeever, P.C., J. Nicholas McKeever, Jr., Gordon W. Netzorg, Denver, for respondent.

Justice KIRSHBAUM delivered the Opinion of the Court.

In Anderson v. Molitor, 770 P.2d 1305 (Colo.App.1988), the Court of Appeals affirmed the trial court's order denying a motion filed pursuant to Rule 60(b) of the Colorado Rules of Civil Procedure by petitioners, Victor D. Molitor and Molitor Industries, Inc. (defendants), requesting the trial court to vacate a judgment previously entered against defendants and in favor of respondent, Donald L. Anderson (plaintiff). We granted certiorari to review the Court of Appeals' conclusion that the trial court had jurisdiction to consider and deny the motion even though a notice of appeal of the judgment had been filed prior to the date upon which the motion was filed. We reverse.

I

The relevant facts are not in dispute. In 1982, plaintiff filed a civil action against defendants seeking damages for alleged wrongful termination of employment, slander, and outrageous conduct. On July 10, 1986, after a jury returned a verdict in favor of plaintiff on his wrongful discharge and slander claims, the trial court entered judgment against defendants in the amount of $622,420.86. Defendants filed a motion for new trial pursuant to C.R.C.P. 59 on August 7, 1986. The trial court requested the parties to file briefs, and on November 17, 1986, entered an order denying the motion. ¹ Defendants filed a notice of appeal on January 2, 1987, but did not apply for a stay of execution.

On January 12, 1987, while the appeal was pending, defendants filed a motion with the trial court for relief from judgment pursuant to C.R.C.P. 60(b)(1), (2) and (5). The motion alleged that plaintiff had filed a motion to dismiss defendants' appeal on the ground that it was untimely filed; asserted that if the appeal were dismissed defendants "will be exposed to entry of the judgment on the basis of excusable negligen[ce] in the filing of the Notice of Appeal"; and requested the trial court to vacate its initial judgment and enter a new judgment, thus initiating a new period within which to file an appeal. In support of their C.R.C.P. 60(b) motion, the defendants argued that certain conduct of the initial trial judge during the pendency of their C.R.C.P. 59 motion had so misled them, to their prejudice, that the unique circumstances doctrine of Converse v. Zinke, 635 P.2d 882 (Colo.1981), should be applied to relieve them from the mandatory provisions of C.R.C.P. 59(j). ² Defendants submitted the same arguments to the Court of Appeals in response to the plaintiff's motion to dismiss their appeal.

On February 5, 1987, while defendants' C.R.C.P. 60(b) motion was pending in the trial court, the Court of Appeals dismissed defendants' appeal on the ground that it had not been timely filed. Defendants' petition for rehearing was denied on March 5, 1987, and this court subsequently denied certiorari. The mandate of the Court of Appeals entered on June 19, 1987.

On February 12, 1987, the trial court denied defendants' C.R.C.P. 60(b) motion on the merits. The trial court concluded that the motion had not been timely filed for purposes of C.R.C.P. 60(b)(1) and (2), and further held that, assuming the motion had been timely filed for purposes of C.R.C.P. 60(b)(5), defendants had failed to establish excusable neglect.

On appeal, the Court of Appeals affirmed the trial court's order. The court held that the trial court had jurisdiction to deny defendants' C.R.C.P. 60(b) motion to vacate judgment even though prior to filing the motion defendants had perfected an appeal of that very judgment by filing a notice of appeal. The Court of Appeals indicated that the trial court did not have jurisdiction to grant defendants' C.R.C.P. 60(b) motion in the absence of an order remanding the case to the trial court for that purpose.

II

The issue for determination is 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. Because courts have developed different answers to this question, the issue "is not free from doubt." Wright & Miller, Federal Practice & Procedure § 2873 at 263 (1973).

In reaching its conclusion, the Court of Appeals properly noted that a majority of federal circuit courts of appeal that have considered the issue in the context of Fed.R.Civ.P. 60(b) motions to vacate judgment have determined that United States district courts retain jurisdiction to deny, but not to grant such a motion after an appeal of the judgment has been perfected. Textile Banking v. Rentschler, 657 F.2d 844 (7th Cir.1981); Puerto Rico v. SS Zoe Colocotroni, 601 F.2d 39 (1st Cir.1979), cert. denied 450 U.S. 912, 101 S.Ct. 1350, 67 L.Ed.2d 336 (1981); Pioneer Ins. Co. v. Gelt, 558 F.2d 1303 (8th Cir.1977); Lairsey v. Advance Abrasives Co., 542 F.2d 928 (5th Cir.1976); First Nat'l Bank of Salem v. Hirsch, 535 F.2d 343 (6th Cir.1976); Salsbury v. United States, 123 U.S.App.D.C. 69, 356 F.2d 822 (D.C.Cir.1966). See Wright & Miller, Federal Practice & Procedure § 2873 at 263-66 (1973). See also Jusino v. Zayas, 875 F.2d 986 (1st Cir.1989); Brown v. United Ins. Co. of Am., 807 F.2d 1239 (5th Cir.1987). This procedural rule stems in part from the recognition that although the filing of a notice of appeal generally results in the transfer of jurisdiction over the entire case to the appellate court, the trial court is not divested of all jurisdiction but by necessity retains authority to aid the appellate process. Puerto Rico v. SS Zoe Colocotroni, 601 F.2d at 41. Orders denying Fed.R.Civ.P. 60(b) motions are viewed by these authorities as orders that aid the appellate process. Id. at 41. Courts also find support for this conclusion in the suggestion that trial courts are in the best position to evaluate quickly the merits of such a motion. Id. at 41.

Other federal circuit courts of appeal have adopted the view that a trial court does not retain jurisdiction to deny or to grant a Fed.R.Civ.P. 60(b) motion to vacate judgment after an appeal of that judgment has been perfected in the absence of an appellate court order remanding the case to the trial court for that purpose. Contemporary Mission, Inc. v. United States Postal Serv., 648 F.2d 97 (2d Cir.1981); Smith v. Lujan, 588 F.2d 1304 (9th Cir.1979); Zig Zag Spring Co. v. Comfort Spring Corp., 200 F.2d 901 (3d Cir.1953). Those courts conclude that whatever minimal jurisdiction trial courts retain over a case after a judgment entered therein has been appealed does not include jurisdiction to act in any manner on requests to modify that judgment. ³

State courts also differ with respect to the proper resolution of the issue here posed. Several such courts have concluded that under applicable procedural rules a trial court does not retain jurisdiction to either deny or grant a motion to modify a judgment after an appeal of that judgment has been perfected in the absence of an order by the appellate court remanding the case for that purpose. Simpson v. Simpson, 233 Ga. 17, 209 S.E.2d 611 (1974); Erickson v. State, 444 A.2d 345 (Me.1982); State v. Hansen Lumber Co., Inc., 86 N.M. 312, 523 P.2d 810 (1974); Nichola v. John Hancock Mut. Life Ins. Co., 471 A.2d 945 (R.I.1984); Kotz v. Kotz, 134 Vt. 36, 349 A.2d 882 (1975); Ferrara v. Belcher, 483 So.2d 477 (Fla.Dist.Ct.App.1986). Other state courts have adopted the rule approved by the majority of federal circuit courts of appeal. See Commonwealth v. Cronk, 396 Mass. 194, 484 N.E.2d 1330 (1985); Huneycutt v. Huneycutt, 94 Nev. 79, 575 P.2d 585 (1978); Menno State Bank v. City of Menno, 297 N.W.2d 460 (S.D.1980); Baker v. Western Sur. Co., 757 P.2d 878 (Utah App.1988).

Courts universally recognize the general principle that once an appeal is perfected jurisdiction over the case is transferred from the trial court to the appellate court for all essential purposes with regard to the substantive issues that are the subject of the appeal. Schnier v. District Court, 696 P.2d 264, 267 (Colo.1985). Such divestiture or transfer principle is essential to the efficient administration of appellate processes and is an important adjunct to the concept of the finality of judgments. People v. District Court, 638 P.2d 65, 66 (Colo.1981). Once a judgment is final, see Fed.R.Civ.P. 54, C.R.C.P. 54, 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.

Of course, trial courts by necessity retain jurisdiction to aid the parties to an appeal in their efforts to perfect the record of the trial court proceedings. See C.A.R. 10(a)(3). Furthermore, a motion to enforce a judgment may be determined by a trial court during the pendency of an appeal of that judgment. Lay v. District Court, 171 Colo. 472, 468 P.2d 375 (1970). However, such collateral post-judgment proceedings do not challenge the propriety of the judgment itself.

The transfer or divestiture principle requires an appellate court to exercise responsibility for the process of the appeal from the moment the appeal is filed. 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...