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

Posted by Kimberly Penix - March 3, 2020 - Civil Appeals, Colorado Appeals, Criminal Appeals, Issue Preservation - No Comments

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.