1989-10-10_REVISION - M1988112 (35)

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Court as provided by law." Continental Airlines, at 87 citing §80- 24-8(7) C.R.S. (1953). Colorado's APA, which governs judicial review of MLRB decisions, does not contain a similar provision. In fact, the APA contemplates continuing agency jurisdiction and §24-4-106 expressly provides that a court may stay the enforcement of an agency order only (1) upon application for a stay by a party; (2) in order to preserve the rights of the parties pending conclusion of the review proceedings; or (3) after review and the court has set aside the order as unlawful. §24-4-106(4.5) and (7) C.R.S. (1988 Repl. Vol.). Notwithstanding the exclusive jurisdiction conferred upon the reviewing court by the Colorado Anti Discrimination Act, the Supreme Court's analogy of judicial review of an administrative order to appellate review of an "inferior" court ordex• is itself subject to limitation. Just as §24-4-106 does not automatically enjoin an agency from enforcing an order once judicial. review is pending, Rule 8(a) of the Colorado Appellate Rules provides for a stay of execution of a trial court order only upon application by a party first with the trial court and secondly with the appellate court. Absent a stay, numerous jurisdictions have held that the trial court in a civil proceeding retains jurisdiction spending the appeal to take such action as may be necessary to enforce its previously entered judgment. See, Castillo v. Industrial Commission, 520 P.2d 1142 (Ariz.App. 1974); Magnolia Petroleum Co. v. Blankenship, 70 S.W.2d 258 (Tex.Civ.App.1931); Lvnct,x v. Clinch Motor Co., 108 S.E. 641 (1921); R.W.Holdina Corp. v. R.F.W. Waterproofing and Decorating Co., 179 So. 753 (F1. 19;t8); Smilev v. Atkinson, 280 A.2d 277 (Md. 1971); Waddle v. State In~3. Ct., 304 P.2d 511 (Okla. 1964); Fishback & Moore of Alaska Inc. v. Lvnn, 407 P.2d 174 (1963); Pressman v. State Accident Fund, 278 P.2d 443 (Md. 1967). Similarly, Am.Jur. 2d states that an appeal from an appealable intermediate or interlocutory order does not divest the trial court of jurisdiction to proceed in matters not :involved in the appeal. 4 Am.Jur. 2d, Appeal and Error, §357 P.F~35 (1962). C.J.S. extends this further by stating: An appellate proceeding for the review o:' incidental or interlocutory matters divests the trial court of jurisdiction only witlx respect to matters directly involved in, or the subject of, the appellate proceeding. 4iA C.J.S. Appeal and Error, §609 p. 399 (1957). Clearly, a trial court may exercise continuing jurisdiction over an order which is subject to appellaite review, just as an agency may exercise continuing jurisdiction over an order which is subject to judicial review, as long as such jurisdiction does not conflict with the exercise of the reviewing court's jurisdiction. 6