Colo. R. App. P. 40

As amended through Rule Change 2024(18), effective October 2, 2024

Rule 40 - Petition for Rehearing

(a) Time to File; Contents; Answer; Oral Argument; Action by Court if Granted.

(1) Time. Unless the time is shortened or extended by order, a petition for rehearing may be filed within 14 days after entry of judgment.

(2) Contents. The petition must state with particularity each points of law or fact the petitioner believes the court has overlooked or misapprehended and must include an argument in support of the petition.

(3) Answer. Unless the court requests a response, no answer to a petition for rehearing is permitted.

(4) Oral Argument. Oral argument is not permitted on a petition for rehearing.

(5) Action by the Court. If a petition for rehearing is granted, the court may:

(A) make a final disposition of the case without reargument;

(B) restore the case to the calendar for reargument or resubmission; or

(C) issue any other order it deems appropriate.

(b) Form of Petition; Length. The petition must comply in form with C.A.R. 32. The petition must include the following in the caption:

(1) If filed in the supreme court: the name of the author justice; the name of any justice who wrote or participated in a separate opinion; the name of any justice who did not participate in the case; whether the decision was en banc; and, if a departmental decision, the names of the participating justices.

(2) If filed in the court of appeals: the names of the author judge and participating judges, and the name of any judge who wrote or participated in a separate opinion.

Except by permission of court, a petition for rehearing must not exceed 1,900 words, excluding material not counted under C.A.R. 28(g)(1).

(c) Petition for Rehearing in Supreme Court Proceedings. A petition for rehearing filed in proceedings before the supreme court must comply with the requirements of subsections (a) and (b) of this rule.

(1) In Direct Appeals. A petition for rehearing may be filed in a direct appeal to the supreme court only after issuance of an opinion. No petition for rehearing may be filed after issuance of an order affirming a lower court order.

(2) In Proceedings Under C.A.R. 21. A petition for rehearing may be filed only when the court has issued an opinion discharging an order to show cause or an opinion making the order absolute. No petition for rehearing may be filed after denial of a petition without explanation, if an order was discharged without opinion, or if an order was made absolute without opinion.

(3) In Certiorari Proceedings. A petition for rehearing may be filed after issuance of an opinion on the merits of a granted petition for writ of certiorari, or when, after granting a writ of certiorari, the court later denies the writ as having been improvidently granted. No petition for rehearing may be filed after issuance of an order denying a petition for writ of certiorari.

(4) In Interlocutory Appeals in Criminal Cases under C.A.R. 4.1. No petition for rehearing shall be permitted in interlocutory appeals filed pursuant to C.A.R. 4.1.

C.A.R. 40

Source: (b) amended and adopted April 4, 1996, effective 7/1/1996; entire rule amended and adopted February 24, 2005, effective 7/1/2005; (a) amended and adopted December 14, 2011, effective 1/1/2012, for all cases pending on or filed on or after January 1, 2012, pursuant to C.R.C.P. 1 (b); amended and comment added, effective 4/7/2016; amended and adopted by the Court, En Banc, 5/16/2024, effective immediately.

COMMENT

2016

Subsection (c), entitled "Petition for Rehearing in Supreme Court Proceedings" is new. It explains when a petition for rehearing may be filed, see also C.A.R. 21(p) and 54(b); reiterates that a petition for rehearing shall not be permitted in interlocutory appeals in criminal cases, see C.A.R. 4.1(g); and clarifies that a petition for rehearing may not be filed after issuance of an order without explanation.

Annotation Law reviews. For article, "A Summary of Colorado Supreme Court Internal Operating Procedures", see 11 Colo. Law. 356 (1982). For article, "Amendments to Appellate Rules Concerning Type Size and Word Count", see 34 Colo. Law. 27 (June 2005). Object of a petition for rehearing is to give the parties an opportunity to point out mistakes of law or fact, or both, which it may be claimed the court has made in reaching its conclusion. Norris v. Kelsey, 60 Colo. 297, 152 P. 1167 (1915). Direct attack upon the judgment after the mandate has issued is not contemplated by the appellate rules. Garrett v. Garrett, 30 Colo. App. 167, 490 P.2d 313 (1971). Rule inapplicable to decision neither raised nor argued. The prohibitions of this rule do not apply where a cause is decided upon a question not raised by the record nor argued by counsel. Model Land & Irrigation Co. v. Baca Irrigating Ditch Co., 83 Colo. 131, 262 P. 517 (1927). A certiorari denial is not a "judgment" that would authorize a party to petition for rehearing under section (a). Al-Yousif v. Trani, 11 F. Supp. 3d 1032 (D. Colo. 2014), rev'd on other grounds, 779 F.3d 1173 (10th Cir. 2015). Rule does not prohibit the citation of authorities, or a reference to those cited in the briefs. Book v. Book, 71 Colo. 502, 208 P. 474 (1922). Appellate court has no duty to accept untimely petition. Nothing in the language of this rule would imply nor was it the intention of this court in drafting this language that there be a duty on the part of the appellate court to accept an untimely petition for rehearing. The only duty which this rule creates is that the court use its sound discretion in considering a request for any extension of time. Wiggins v. People, 199 Colo. 341, 608 P.2d 348 (1980). Refusal to enlarge time was an abuse of discretion where the failure to timely file was due to the failure of the clerk of the court of appeals to mail copies of the court of appeals opinion to the third party defendants as required by C.A.R. 36. Brewster v. Nandrea, 705 P.2d 1 (Colo. 1985). Appellate court's jurisdiction not relinquished pending petition for rehearing. The appellate court holds jurisdiction of the cause for a fixed period for the purpose of permitting an application for a rehearing, and in no case except upon special order, is this jurisdiction relinquished during such period. Norris v. Kelsey, 60 Colo. 297, 152 P. 1167 (1915). If a petition for rehearing is filed, jurisdiction is retained until such application is finally disposed of, and which may result in a modification or even a reversal of the original judgment of the appellate court. Norris v. Kelsey, 60 Colo. 297, 152 P. 1167 (1915). Jurisdiction of district court is not restored until cause is finally disposed of by appellate court. Norris v. Kelsey, 60 Colo. 297, 152 P. 1167 (1915). Evenly divided vote denies petition. A three to three division of the supreme court on the question of granting or denying the first petition for a rehearing operates to deny that petition. For that reason, under this rule, the appellant was without legal right to file the second petition for rehearing, and should not have been permitted to do so. Such petition, if filed, should be stricken, or if not stricken, then denied. People ex rel. Link v. Tucker, 96 Colo. 273, 42 P.2d 472 (1935). C.A.R. 26(c) inapplicable as time extension. C.A.R. 26(c), relating to additional time after service by mail, has no application as an extension of time limit set forth in section (a) of this rule. Garrett v. Garrett, 30 Colo. App. 167, 490 P.2d 313 (1971). Petition held to sufficiently state issue. A petition stating a point the court might have overlooked, and showing the relation of that point to the court's decision, and nothing irrelevant thereto, does not violate this rule. Colburn v. Ernst, 75 Colo. 120, 223 P. 759 (1924). Petition which contains insulting criticism of the courts or flagrantly disregards court rules will be stricken. Goodrich v. Union Oil Co., 85 Colo. 218, 274 P. 935 (1929). Applied in Honey v. Ranchers & Farmers Livestock Auction Co., 191 Colo. 503, 553 P.2d 799 (1976); People v. Parsons, 645 P.2d 850 (Colo. 1982).