Category: Civil Appeals

Alderman Law Firm Wins Appeal to Save Historic Monument

Last week, the Wisconsin Court of Appeals overturned a circuit court order that would have allowed demolition of the historic Sisters of Holy Nativity Convent.

On appeal, Attorney K.L. Penix argued the circuit court’s decision allowing for the demolition was erroneous because, in relevant part, the owner of the Convent attempted to comply with a raze or repair order issued by the City of Fond du Lac. If the City still intended to seek demolition of the building following the repairs, it should have sought a new raze or repair order.

This matter will resume in the circuit court, where the fate of the historic monument will be decided.

For the rest of the story, please see the FLD reporter at Fond du Lac Holy Nativity Convent: Appeals court upholds challenge (fdlreporter.com)

Alderman Law Firm Fights City on Demolition of Historic Monument

“Fate of Sisters of the Holy Nativity Convent in hands of appeals court

A brief filed Friday with Wisconsin Court of Appeals by legal counsel for the owner of Sisters of the Holy Nativity Convent [Alderman Law Firm] asks that the property be saved from the city of Fond du Lac’s demolition order. . .

“Our national historic monuments should be preserved, not destroyed and, especially given the current pandemic, there is no better use for the property than to allow time for repair,” [Attorney] Penix said. “Panoussis hopes that the city will not be able to scrape away history and replace the nativity with a Kentucky Fried Chicken, and turns to the Court of Appeals in hopes of support for his efforts and our collective past.””

For the rest of the story, please see the FDL Reporter at https://www.fdlreporter.com/story/news/2020/08/26/fond-du-lac-holy-nativity-convent-fate-hands-wiscons-court-of-appeals/5626383002/

The Cumulative Error Doctrine in Colorado Appeals

The first step in a direct appeal is to ask the court of appeals to provide relief for specific legal errors made at the trial level. But sometimes, the trial court made only a series of smaller errors, rather than a severe error that would alone warrant reversal. In these cases, the cumulative error doctrine may be of help in finding relief.

The court of appeals considers de novo whether the cumulative effect of multiple errors at trial requires reversal, even if any one of those errors individually may not warrant relief. Kogan v. People, 756 P.2d 945, 961 (Colo. 1988), abrogated on other grounds by Erickson v. People, 951 P.2d 919 (Colo. 1998). Under a cumulative error analysis, “regardless of whether any error was preserved or unpreserved . . . reversal is warranted when numerous errors in the aggregate show the absence of a fair trial, even if individually the errors were harmless or did not affect the defendant’s substantial rights.” Howard-Walker v. People, 443 P.3d 1007, 1011-1012 (Colo. 2019).

In Colorado, the cumulative error doctrine has only been applied in criminal appeals. The court of appeals has thus far declined to extend the doctrine to civil cases. Neher v. Neher, 402 P.3d 1030 (Colo. App. 2015) (holding the court “decline[s] to extend [the cumulative error doctrine] to civil cases.”)

To speak with a knowledgeable attorney about your appeal, contact the Alderman Law Firm today for a free consultation.

Issue Preservation in Colorado Appeals: Was my issue preserved for appeal?

With few exceptions, a legal issue must be preserved in the trial court in order to raise it on appeal. This means that the issue must have been brought to the attention of the trial court and the court must’ve been given the chance to make the correct decision.

The most common means of preservation is through objection, either written or oral. Objections should state the basis for the objection – alerting the trial court to what law it should consider in deciding whether to correct the problem. Vague or nonspecific objections are often insufficient to preserve an issue – the basis for the objection must be clear. Regardless of the means of alerting the court, the issue must have been raised in a timely, specific way, and the raising of and ruling on the issue must be on the record. People v. Salazar, 964 P.2d 502, 507 (Colo. 1998)

But there are exceptions that cut both ways. If the party raising the argument invited the error or later waived the issue, that issue will be deemed not properly preserved. On the other hand, subject matter jurisdiction and standing may be raised for the first time on appeal. Paine, Webber, Jackson & Curtis, Inc. v. Adams, 718 P.2d 508, 513 (Colo. 1986) (subject matter jurisdiction); Tising v. State Personnel Bd., 825 P.2d 1011, 1012 (Colo. App. 1991) (standing) And, in criminal cases, even unpreserved issues may be reviewed for plain error. Crim. P. 52(b); Hagos v. People, 2012 CO 63.

The timeliness and sufficiency of preserving issues at the trial level can be a bit tricky, particularly in Colorado civil cases. For instance, affirmative defenses need to be raised in the complaint, and responsive arguments need to be raised in the responsive pleadings. For summary judgment motions, denials are generally not reviewable once the final judgment has been issued. So the party must-reraise the issue later in the proceedings via a timely directed verdict motion or motion for judgment notwithstanding the verdict. Feiger, Collison & Killmer v. Jones, 926 P.2d 1244, 1251 (Colo. 1996). Even in criminal cases, an argument that two cases were improperly joined must be renewed at the close of evidence in order to preserve the issue for apepal. Bondsteel v. People, 2019 CO 26.

To speak with a knowledgeable attorney about your appeal, contact the Alderman Law Firm today for a free consultation.

How Do Appeals Work in Colorado?

In any jurisdiction, an appeal is a legal proceeding through which a party that received an adverse decision seeks review of that decision in a higher court. An appeal is not an opportunity to re-litigate a case or present new evidence, but rather to point out an error that occurred in the trial court.

The first step to filing an appeal is determining what court has jurisdiction to hear your appeal, and when the deadline is to file your notice of appeal. It is vital that you file your notice of appeal within the correct deadline with the correct court. In most cases, failure to do so will be fatal to an appeal.

The reviewing court will decide your appeal based on the record. The record contains pertinent documents evidencing what happened at the trial level, including pleadings, transcripts, and orders. Generally, a litigant cannot add newly discovered materials to the record. It is important to show that the alleged error has been preserved – meaning that you or your attorney pointed out the error via objection or motion, and the trial court had an opportunity to issue an appropriate ruling.

The process of an appeal is lengthy and uneventful. You or your attorney will review the record, then make your argument in writing (your opening brief). The appellee will have an opportunity to file a written answer to your opening brief, after which you may (but are not required to) file a reply brief. Following submission of these three briefs, neither party is permitted to file any additional materials. In most cases, the court will decide the case based on the briefs and record, then file a written decision.

To speak with a knowledgeable attorney about your appeal, contact the Alderman Law Firm today for your free consultation.

Who are the Colorado Supreme Court Justices?

The Colorado Supreme Court is made up of seven justices who serve ten-year terms. The current seven justices are Chief Justice Nancy E. Rice, and Justices Nathan B. Coats, Allison H. Eid, Monica M. Márquez, Brian D. Boatright, William W Hood, III, and Richard L. Gabriel.

To become a justice, an attorney must be recommended by the Colorado Supreme Court Nominating Commission. The nominating commission is made up of seventeen members, eight of which are non-attorneys. To serve on the commission, a potential member must apply with the nominating commission liaison. Of the nominees, the Governor of Colorado will appoint one to serve. The appointed nominee will serve an initial term of ten years, and then must earn retention through a general election.

Because of the nomination scheme, judicial terms will expire periodically as a particular justice’s term ends. A justice who achieves initial retention will then begin serving a ten-year term. Justices may seek retention at the end of any ten-year term, but must retire at age 72.

Photographs, biographies, and contact information for current supreme court justices can be found on the Colorado Judicial Branch’s Web page, here.

To speak with a knowledgeable attorney about your appeal, contact the Alderman Law Firm today for your free consultation.

Who are the Judges on the Colorado Court of Appeals?

The Colorado Court of Appeals consists of 22 judges each serving an eight-year term. To become a judge, an attorney must be nominated by commission, and then appointed by the Governor of Colorado. A newly nominated judge will serve a two-year term, and then must achieve retention through a general election. Judges who achieve retention will then begin serving their eight-year term.

Because of this nomination scheme, judicial appointments expire periodically as a particular judge’s eight-year term comes to a close. At the end of this term, the judge may seek retention for another term or retire. Judicial retirement is mandatory at age 72.

The judges hear and decide cases in panels of three. The chief judge – who is appointed to serve indefinitely by the Colorado Supreme Court – makes all case assignments. Currently, the honorable Alan M. Loeb serves as chief judge.

Photographs, biographies, and contact information for each judge can be found on the Colorado Judicial Branch Web page, here.

To speak with a knowledgeable attorney about your appeal, contact the Alderman Law Firm today for your free consultation.

What is Jurisdiction?

A particular court’s jurisdiction refers to what types of cases it is authorized to hear, or the scope of its power. A court of general jurisdiction is a court that can hear any type of case that may arise within its assigned geographic location, such as civil, criminal, or family.

Most state court systems divide jurisdiction between various courts. For example, a new case in the state courts of Colorado would be filed in a trial level court. Which trial level court depends on the type of case being filed: municipal court for municipal code violations, small claims courts for civil disputes valuing $7,500 or less, county courts for state law matters, civil disputes above the small claims limit, traffic offenses, and misdemeanor criminal offenses, and state district courts for felony offenses, civil matters exceeding the jurisdiction of county courts, and other specified matters.

Importantly, each of these courts have their own set of rules, deadlines, and procedures. For example, civil cases in the county courts are governed by the Colorado Rules of County Court Civil Procedure, whereas criminal cases in the county courts are governed by Colorado Rule of Criminal Procedure. Failure to adhere to the correct rules may result in dismissal of your case.

Most adverse decisions entered within trial level courts may be appealed. The court that has jurisdiction over a particular appeal is determined by the court that entered the final order at the trial level. The district court hears most appeals from the municipal courts and county courts (civil and criminal). Appeals from the district court are within the jurisdiction of the Colorado Court of Appeals. Finally, an adverse decision from the court of appeals may be appealed to the Colorado Supreme Court.

If you file your case in the incorrect court, the court will dismiss the matter for lack of jurisdiction – regardless of the merits of your claim.

To speak with a knowledgeable attorney about your appeal, contact the Alderman Law Firm today for your free consultation.

How to Appeal to the Tenth Circuit

The United States Court of Appeals for the Tenth Circuit is the federal appellate court with jurisdiction over the federal districts of Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. In almost all cases, a would-be appellant cannot initiate a case in this court until he has received a final judgment within the district court. Through the ensuing appeal, the appellant can argue the district court erred in any order it issued prior to entry of final judgment.

Appeals before the Tenth Circuit are governed by the Federal Rules of Appellate Procedure (“Fed. R. App. P.”), which can be found here. These rules require the appellant begin by filing a notice of appeal that complies with Fed. R. App. P. 3 in terms of content, and Fed. R. App. P. 4 in terms of timeliness. As with an appeal before any court, it is vital that appellants adhere to the deadline to file a notice of appeal.

When filing the notice of appeal, the appellant must also pay the full appellate filing and docketing fee (currently $505) to the district court. Additionally, if a transcript is required for the appeal, appellant must request preparation of this transcript by filing a request with the district court.

Once the district court has determined that the record is complete, the court of appeals will set a deadline for filing all briefs. This deadline may be extended via motion, however these motions are disfavored. If you anticipate needing additional time, it is best to file a motion for extension at least five days prior to expiration of a deadline.

Appellant’s opening brief should comply with requirements in both the Federal Rules of Appellate Procedure as well as the 10th Circuit Local Rules. These requirements govern the format, content, length, and service requirements of the opening brief. The appellant’s opening brief will be followed by the appellee’s answer brief, and appellant’s optional reply brief.

If your case is scheduled for oral argument, you will be notified of this decision approximately two months ahead of your scheduled argument date. Litigants are generally permitted 15 minutes of argument, each. Following oral argument (if scheduled) or submission on briefs (if no argument is scheduled), the court will issue a written decision. There is no timetable for determining how long a decision may take.

To speak with a knowledgeable attorney about your appeal, contact the Alderman Law Firm today.

How Do I Appeal a Colorado District Court Case?

In most cases, a loss in a Colorado District Court case may be appealed directly to the Colorado Court of Appeals. In order to preserve the opportunity to pursue an appeal, however, a litigant must pay careful attention to the Colorado Appellate Rules (“CAR”) and the deadlines contained therein.

The first step is filing and serving a notice of appeal. This document must contain all information required by either CAR 3(d) (civil cases), or CAR 3(g) (criminal cases). To file, the litigant must (1) serve the original on the court of appeals, and (2) provide a copy to the trial court and all parties. The deadline for completing these actions is generally 49 days following entry of the order appealed from.

The filing fee for a notice of appeal is currently $223. You may additionally be required to pay an appellate bond of $250 to the district court – the clerk can advise whether this fee is applicable to your case. If you cannot pay these fees, you may complete and file Form JDF 205, which can be downloaded from the Colorado Judicial Branch’s Web page, here, to request a waiver.

Within 14 days after filing the notice of appeal, you must file and serve the designation of record on appeal. As with the notice of appeal, this document must be filed with both the district court and the court of appeals. At this point in the appeal, it is also important to ask the clerk how to begin ordering necessary transcripts.

Within 13 weeks of filing the designation of record on appeal, the district court will send the case record to the court of appeals. This event begins the clock on your deadline to file your opening brief: 42 days after the record is filed. If you chose to draft appellate documents yourself, pay attention to the court’s strict formatting rules contained in CAR 32, as well as content requirements contained in CAR 28.

In your opening brief, you must explain how the district court erred, and why the court of appeals should address the error. Importantly, an appeal must be based on the record and cannot incorporate any new information. The opposing party will have 35 days from service of your opening brief to file an answer brief, then you may choose to file and serve a reply brief within 21 days of service of the answer. The court will likely decide your case without a hearing and issue a written decision.

To speak with a knowledgeable attorney about your appeal, contact the Alderman Law Firm today for your free consultation.