Colo. R. App. P. 26
C.A.R. 26
Committee Comment
The rule as amended conforms to C.R.C.P. 6(a).
Comment
After the particular effective date, time computation in most situations is intended to incorporate the Rule of Seven. Under the Rule of Seven, a day is a day, and because calendars are divided into 7-day week intervals, groupings of days are in 7-day or multiples of 7-day intervals. Groupings of less than 7 days have been left as they were because such small numbers do not interfere with the underlying concept. Details of the Rule of Seven reform are set forth in an article by Richard P. Holme, 41 Colo. Lawyer, Vol. 1, P 33 (January 2012).
Time computation is sometimes "forward," meaning starting the count at a particular stated event such as date of filing and counting forward to the deadline date. Counting "backward" means counting backward from the event to reach the deadline date such as a stated number of days being allowed before the commencement of trial. In determining the effective date of the Rule of Seven time computation/time interval amendments having a statutory basis, said amendments take effect on July 1, 2012 and regardless of whether time intervals are counted forward or backward, both the time computation start date and deadline date must be after June 30, 2012. Further, the time computation/time interval amendments do not apply to modify the settings of any dates or time intervals set by an order of a court entered before July 1, 2012.
Annotation Law reviews. For article, "The Problem of Delay in the Colorado Court of Appeals", see 58 Den. L.J. 1 (1980). For article, "'Rule of Seven' for Trial Lawyers: Calculating Litigation Deadlines", see 41 Colo. Law. 33 (January 2012). Appellate court cannot enlarge the time for filing notice of appeal in civil cases beyond that prescribed in Rule 4(a), C.A.R.Chapman v. Miller, 29 Colo. App. 8, 476 P.2d 763 (1970). The provisions of section (b) of this rule prohibit an appellate court from enlarging the time for filing a notice of appeal under C.A.R. (4)(a). People v. Allen, 182 Colo. 395, 513 P.2d 1060 (1973). Filing appeal within time set by statute vests court of appeals with jurisdiction and the court itself cannot enlarge time set by statute. Denver v. Bd. of Assessment Appeals, 748 P.2d 1306 (Colo. App. 1987). New requirement that notice of appeal be filed with the appellate court is jurisdictional and strict compliance with the rule is required. Therefore, a notice of appeal erroneously filed in the trial court was of no effect under the new rules, and trial court was without authority to grant an extension of time to correctly file a notice of appeal. Collins v. Boulder Urban Renewal Auth., 684 P.2d 952 (Colo. App. 1984). But can enlarge time in criminal cases. An appellate court may, for good cause shown, enlarge the time for filing under C.A.R. (4)(a). People v. Allen, 182 Colo. 395, 513 P.2d 1060 (1973). Although counsel's neglect in timely filing a notice of appeal is inexcusable, the court should consider whether other factors, such as the potential prejudice the appellee may suffer from a late filing, the interests of judicial economy, and the propriety of requiring the defendant to pursue other remedies to redress his counsel's neglect, weigh heavily in favor of permitting the late filing. Estep v. People, 753 P.2d 1241 (Colo. 1988). Estep v. People factors equally important in a juvenile case when appellate review of a judgment of delinquency entered by a magistrate is foreclosed by counsel's failure to file a timely petition for district court review pursuant to § 19-1-108(5). People ex rel. M.A.M., 167 P.3d 169 (Colo. App. 2007) (decided prior to 2007 repeal of § 19-1-108(5) ). A knowing and intentional failure to file an appeal does not constitute good cause for extending the filing time pursuant to section (b). People v. Gilmore, 97 P.3d 123 (Colo. App. 2003). Judicial economy may constitute excusable neglect under section (b) only when accepting the appeal prevents the case from going back to the trial court on a new motion. People v. Gilmore, 97 P.3d 123 (Colo. App. 2003). Section (c) is inapplicable as extension of time limit for petition for rehearing set forth in C.A.R. (40)(a). Garrett v. Garrett, 30 Colo. App. 167, 505 P.2d 39 (1971). Application for time extension must generally be made before time prescribed expires. The application for extension, except on the happening of an unforeseen contingency, must be made before the time to take the step for which further time is asked has expired. La Junta & Lamar Canal Co. v. Fort Lyon Canal Co., 25 Colo. 515, 55 P. 728 motion to set aside order dismissing appeal granted, 25 Colo. 513, 55 P. 729 (1898). Otherwise, right to perform act lost. Under C.R.C.P. 6 and C.A.R. 31, a right to file an answer brief is lost where no request for extension of time is made within the time limit the brief was due, except upon a showing that failure to act was the result of excusable neglect. Fraka v. Malernee, 129 Colo. 87, 267 P.2d 651 (1954). Time extension granted where good cause shown. When the required steps in each case cannot be taken within the time limited, on good cause shown such time may be extended. La Junta & Lamar Canal Co. v. Fort Lyon Canal Co., 25 Colo. 515, 55 P. 728, motion to set aside order dismissing appeal granted, 25 Colo. 513, 55 P. 729 (1898). When an appellant pleads for an enlargement of time under this rule solely on the basis that his counsel neglected to file the notice of appeal, such neglect constitutes "good cause" only if it satisfies the excusable neglect standard set forth in Farmers Ins. Group (507 P.2d 865). Estep v. People, 753 P.2d 1241 (Colo. 1988). The determination of whether good cause exists for enlargement of time pursuant to this rule for the late filing of a notice of appeal is within the broad discretion of the court of appeals, but such discretion cannot be exercised in a manner that is manifestly arbitrary, unreasonable, or unfair. Estep v. People, 753 P.2d 1241 (Colo. 1988). Stipulations fixing or extending time disregarded unless expressly approved. Parties cannot by stipulation or agreement fix or extend the time for filing briefs in the supreme court contrary to the rules, and, unless such agreements are approved by the court, they will be disregarded. Wilson v. People, 25 Colo. 375, 55 P. 721 (1898); La Junta & Lamar Canal Co. v. Fort Lyon Canal Co., 25 Colo. 515, 55 P. 728, motion to set aside order dismissing appeal granted, 25 Colo. 513, 55 P. 729 (1898); Estep v. People, 753 P.2d 1241 (Colo. 1988). The time for filing an appeal to a decision of the title board is five days after the board denies the motion for rehearing and not five days from the date the secretary of state certifies the documents requested for appeal. Matter of Title, Ballot Title for 1997-98 No. 62, 961 P.2d 1077 (Colo. 1998). The requirement that an appeal be filed within five days from the board's denial of a motion for rehearing is to be construed in conjunction with this rule, thus limiting the computation of five days to exclude Saturday and Sunday. Matter of Title, Ballot Title for 1997-98 No. 62, 961 P.2d 1077 (Colo. 1998). General rule on time computation does not affect specific time limits imposed by statute. A party to a proceeding who received notice of the industrial claim appeals office's order by mail, and who did not file an appeal within 20 days after the date of the certificate of mailing of the order as required by the applicable statute, was not entitled to the additional three days allowed by this rule for service by mail. Indus. Claim Appeals Office v. Zarlingo, 57 P.3d 736 (Colo. 2002). Applied in Widener v. District Court, 200 Colo. 398, 615 P.2d 33 (1980); People v. Boivin, 632 P.2d 1038 (Colo. App. 1981); Cline v. Farmers Ins. Exch., 792 P.2d 305 (Colo. App. 1990); Garcia v. Medved Chevrolet, Inc., 240 P.3d 371 (Colo. App. 2009), aff'd, 263 P.3d 92 (Colo. 2011).