C.R.C.P. 62

History

COMMITTEE COMMENT The 1988 amendment to C.R.C.P. 62(b) is a change to make that section fully consistent with the changes made to C.R.C.P. 59. The post-trial relief features of C.R.C.P. 50 and 52(b) were brought into C.R.C.P. 59. As a re- sult, those Rules (50) and (52) no longer bear on post-trial relief and need not be referenced in C.R.C.P. 62. Source: (b) amended and adopted, effective November 16, 1995; (a) amended and adopted December 14, 2011, effective January 1, 2012, for all cases pending on or filed on or after January 1, 2012, pursuant to C.R.C.P. 1(b). Cross references: For motion for directed verdict, see C.R.C.P. 50; for when bond not required, see C.A.R. 8(c); for stays pending appeal, see C.A.R. 8. ANNOTATION I. General Consideration. II. Automatic Stay. III. Stay on Motion. IV. Injunction. V. Stay upon Appeal. I. GENERAL CONSIDERATION. Law reviews. For article, ‘‘Amendments to the Colorado Rules of Civil Procedure’’, see 28 Dicta 242 (1951). For article, ‘‘Judgment: Rules 54-63’’, see 23 Rocky Mt. L. Rev. 581 (1951). For article, ‘‘Obtaining a Supersedeas Bond’’, see 23 Colo. Law. 607 (1994). For article, ‘‘Bonds in Colorado Courts: A Primer for Prac- titioners’’, see 34 Colo. Law. 59 (March 2005). For article, ‘‘Staying Enforcement of a Judg- ment Pending Appeal’’, see 48 Colo. Law. 30 (May 2019). No power is lodged in any court to stay an order of discharge in a habeas corpus pro- ceeding, as such action would defeat the very purpose of habeas corpus. Geer v. Alaniz, 137 Colo. 432, 326 P.2d 71 (1958). Generally, court may not impair creditor’s right to enforce judgment. As a general rule, a court may not stay execution and thereby im- pair or destroy the statutory right of a judgment creditor to enforce collection of its judgment against nonexempt property of the judgment debtor. First Nat’l Bank v. District Court, 652 P.2d 613 (Colo. 1982). This rule does not require a judgment creditor to have a valid judgment lien as a prerequisite to execute on a judgment and certificate of levy. Franklin Credit Mgmt. Corp. v. Galvan, 2019 COA 107, 457 P.3d 749. Right to enforce may be statutorily lim- ited. The substantive right of a judgment credi- tor to enforce collection of the judgment may be statutorily limited, as by § 7-60-128. First Nat’l Bank v. District Court, 652 P.2d 613 (Colo. 1982). Effect of stay on certain statutory require- ments. The stay of execution provided for in this rule has no effect on the requirement that a transcript of judgment be issued on payment of the fee pursuant to § 13-32-104 (1)(g). Rocky Mt. Ass’n of Credit Mgt. v. District Court, 193 Colo. 344, 565 P.2d 1345 (1977). Applied in Ireland v. Wynkoop, 36 Colo. App. 206, 539 P.2d 1349 (1975). II. AUTOMATIC STAY. Under section (a) of this rule, a judgment order dividing property is automatically stayed and unenforceable for a period of 10 (now 15) days following its entry. Sarno v. Sarno, 28 Colo. App. 598, 478 P.2d 711 (1970). Section (a) is inapplicable to temporary custody order the mother was found to have violated. Order was not subject to 15-day auto- matic stay. In re Adams, 778 P.2d 294 (Colo. App. 1989). A forcible medication administration or- der is not the type of action contemplated by section (a) and is thus not automatically stayed for 14 days after entry. People ex rel. Strodtman, 293 P.3d 123 (Colo. App. 2011). III. STAY ON MOTION. Unless stayed by the court, a judgment may be executed upon before a new trial mo- tion is decided. Oman v. Morris, 28 Colo. App. 124, 471 P.2d 430 (1970). IV. INJUNCTION. Effect of section (c) is to protect rights of parties. Section (c) of this rule authorizes the trial court to enter orders which preserve the status quo, or otherwise protect the rights of the parties pending appeal, but does not give the trial court authority to enter an order which alters the rights granted, or created by the origi- nal order. Rivera v. Civil Serv. Comm’n, 34 Colo. App. 152, 529 P.2d 1347 (1974). By virtue of this rule, a trial court can, in its discretion, suspend, modify, restore, or grant an injunction, so long as an appellate court has not granted a supersedeas. Woitchek v. Isenberg, 151 Colo. 544, 379 P.2d 392 (1963). Injunctive power of the court has been long recognized. At least since 1887, it has been recognized statutorily that trial courts can more speedily, economically, and satisfactorily consider applications for injunctive relief in ac- tions which are pending in an appellate court. Woitchek v. Isenberg, 151 Colo. 544, 379 P.2d 392 (1963). An obvious reason for recognizing the court’s injunctive power is that trial courts are equipped to conduct the trial process. Woitchek v. Isenberg, 151 Colo. 544, 379 P.2d 392 (1963). But injunctive proceedings may not be in- voked to bring about a forfeiture of a prop- erty right. Injunction and forfeiture cannot be equated; they are separate and distinct concepts. Woitchek v. Isenberg, 151 Colo. 544, 379 P.2d 392 (1963). V. STAY UPON APPEAL. Annotator’s note. Since section (d) of this rule is similar to § 428 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing § 428 have been included in the annotations to this rule. A trial court retains jurisdiction in order to enforce a judgment it has rendered where defendant does not move for stay of execution or file a supersedeas bond. Oman v. Morris, 28 Colo. App. 124, 471 P.2d 430 (1970). Where a defendant fails to take these affir- mative steps necessary in order to prevent the trial court from making a final disposition of the case in accordance with its findings, no error is committed by a trial court in entering a final decree confirming a title after an appeal has issued. Failure of defendant to stay the execu- tion means that the trial court retains jurisdic- tion, and its actions subsequent to the issuance of the notice of appeal are fully within its pow- ers. Oman v. Morris, 28 Colo. App. 124, 471 P.2d 430 (1970). Effect of trial court’s failure to rule on motion. In foreclosure action, where motion for stay under section (d) of this rule and for waiver of the supersedeas bond requirement had been filed in the trial court but not determined at time of appeal, and where a request for stay under C.A.R. 8 had not been filed in the court of appeals, title to secured property vested in cer- tificate holder and appeal was moot. Mount Carbon Metro. Dist. v. Lake George Co., 847 P.2d 254 (Colo. App. 1993). Stay may be issued before or after appeal filed. The 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). The filing of a supersedeas bond is a pre- requisite for obtaining an order staying ex- ecution of judgment pending appeal under section (d) of this rule. Muck v. District Ct., 814 P.2d 869 (Colo. 1991). The issuance of a writ of supersedeas is the consideration for the giving of a supersedeas bond. Buchhalter v. Solomon, 78 Colo. 227, 241 P. 718 (1925). There can be no supersedeas where one cannot furnish bond therefor. Riant Amuse- ment Co. v. Bailey, 80 Colo. 65, 249 P. 7 (1926). A supersedeas writ may not be granted on an invalid bond. Buchhalter v. Solomon, 78 Colo. 227, 241 P. 718 (1925). Trial court erred in entering an order stay- ing all proceedings relative to enforcement of family support order without requiring ap- pellant to file supersedeas bond. Muck v. Dis- trict Ct., 814 P.2d 869 (Colo. 1991).