Opinion
No. 78-880
Decided September 22, 1978.
Asserting that timely motion for new trial was not filed by appellant, appellees moved to dismiss appeal.
Appeal Dismissed
1. APPEAL AND ERROR — Motion for Temporary Injunction — Controverted Issues of Fact — Timely Motion for New Trial — Required — Prior to Appeal. Where there are controverted issues of fact before the trial court in conjunction with the hearing on a motion for temporary injunction, a timely motion for new trial is required prior to an appeal.
Appeal from the District Court of Adams County, Honorable Jean J. Jacobucci, Judge.
Richard W. Gillespie, Thomas J. Cross, Jr., for plaintiffs-appellees.
Hellerstein, Hellerstein Shore, P.C., Christian Carl Onsager, Stephen A. Hellerstein, for defendant-appellant defendant Lamco, Inc.
The appellees have moved to dismiss this appeal because a timely motion for new trial was not filed by appellant, Advance Mortgage Corporation. We conclude that the motion should be granted.
Appellees initiated this action seeking both a temporary and permanent injunction to restrain Advance Mortgage from exercising the right to cast the number of votes claimed by it in an election for members of the board of directors of Eastwood Estates Homeowners Association. A hearing on the appellees' motion for temporary injunction was held on August 11, 1978. Following presentation of testimony, the trial court entered an order restraining Advance Mortgage from voting for more than two of the seven members of the board. Advance Mortgage filed an untimely motion for rehearing with the trial court on September 1, 1978, see C.R.C.P. 59(b); the court denied the motion; and Advance Mortgage then filed its notice of appeal.
Appellees contend that the failure of Advance Mortgage to file a timely motion for new trial divests this court of jurisdiction to consider the appeal. Appellees rely upon Minshall v. Pettit, 151 Colo. 501, 379 P.2d 394 (1963), wherein our Supreme Court held that the motion for new trial then required by R.C.P. Colo. 59(b) and (f) was a prerequisite to appeal of a temporary injunction. Advance contends that Minshall is not dispositive here because C.R.C.P. 59 as now worded does not "address itself in any manner to temporary orders entered well before trial," but rather is applicable only to motions for new trial filed after entry of a "final judgment." Advance Mortgage points to the fact that in Minshall, the injunction was entered following a five-day trial which it equates to a full scale trial on the merits. We hold that where, as here, there are controverted issues of fact before the trial court in conjunction with the hearing on a motion for temporary injunction, a timely motion for new trial is required prior to an appeal from the trial court's order.
[1] Although the rule in question has been amended in various particulars since Minshall, compare R.C.P. 59 with C.R.C.P. 59, nevertheless, certain principles stated in Minshall still pertain, e.g., that "the reason for adhering to this rule is to attempt to give vitality to its purpose 'to give the trial court an opportunity to correct alleged errors.' " And, in Rowe v. Watered Down Farms, 195 Colo. 508, 576 P.2d 172 (1978), our Supreme Court stated:
"As a general rule, a timely motion for a new trial is a jurisdictional prerequisite for appellate review of a lower court decision . . . .
"A proper interpretation of the rules of civil procedure requires that they be read together. The references in Rule 59(f) to 'the trial of any case' and in Rule 59(h) to 'any hearing' indicate the broad application that is given to Rule 59. Disputed factual issues are often presented for determination in a 'hearing' as well as in a 'trial,' and it is salutary to provide the trial court the opportunity to correct errors it might have made in both instances."
It is evident that there were controverted issues of fact before the trial court in this case. For example, a witness for Advance Mortgage seemed to indicate that Advance Mortgage would cast its votes for only two of the board members. On appeal, Advance Mortgage strenuously contends that the trial court erred in its interpretation of this testimony urging that it represented only the witness's version of a compromise offer by Advance Mortgage to the appellees. Thus, it is apparent that certain underlying facts and circumstances are in dispute. See Rowe v. Watered Down Farms, supra. Hence, a motion for new trial was required.
Appeal dismissed.
JUDGE PIERCE and JUDGE BERMAN concur.