C.r.c.p. 6
C.r.c.p. 6
Comments
2012
[1] 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).
[2] 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.
Recent Annotation Section (b) does not apply to the statutory deadline for payment of jury fees. If a statute sets forth a particular deadline or procedure, court-promulgated rules do not apply. Premier Members Fed. Credit Union v. Block, 2013 COA 128, 312 P.3d 276. Annotation I. General Consideration. Law reviews. For article, "Pre-Trial in Colorado in Words and at Work", see 27 Dicta 157 (1950). For article, "Notes on Proposed Amendments to Colorado Rules of Civil Procedure", see 27 Dicta 165 (1950). For article, "Amendments to the Colorado Rules of Civil Procedure", see 28 Dicta 242 (1951). For article, "Commitment Procedures in Colorado", see 29 Dicta 273 (1952). For article, "2006 Amendments to the Civil Rules: Modernization, New Math, and Polishing", see 35 Colo. Law. 21 (May 2006). For article, "'Rule of Seven' for Trial Lawyers: Calculating Litigation Deadlines", see 41 Colo. Law. 33 (January 2012). The provisions of section (e) authorize the addition of three days to the prescribed period for taking certain actions following service by mail. However, the time for filing a C.R.C.P. 59 motion is specifically triggered either by entry of judgment in the presence of the parties or by mailing of notice of the court's entry of judgment if all parties were not present when judgment was entered. As a result, section (e) is not applicable to the filing of C.R.C.P. 59 motions. Wilson v. Fireman's Fund Ins. Co., 931 P.2d 523 (Colo. App. 1996). The provision of section (e) authorizing the addition of three days for service by e-filing does not apply to statutorily proscribed time periods. This rule does not extend the time period for accepting an offer of settlement under § 13-17-202 . Montoya v. Connolly's Towing, Inc., 216 P.3d 98 (Colo. App. 2008). Section (e) does not modify statutory time period for petitions to review workers' compensation orders. Speier v. Indus. Claim Appeals Office, 181 P.3d 1173 (Colo. App. 2008). Applied in Joslin Dry Goods Co. v. Villa Italia, Ltd., 35 Colo. App. 252, 539 P.2d 137 (1975); Joslins Dry Goods Co. v. Villa Italia, Ltd., 541 P.2d 118 (Colo. App. 1975); SCA Servs., Inc. v. Gerlach, 37 Colo. App. 20, 543 P.2d 538 (1975); Reiger v. Reiger, 39 Colo. App. 471, 566 P.2d 722 (1977); People ex rel. Garrison v. Lamm, 622 P.2d 87 (Colo. App. 1980); Cortez v. Brokaw, 632 P.2d 635 (Colo. App. 1981); Nat'l Account Sys. v. District Court, 634 P.2d 48 (Colo. 1981); Kofoed v. Blecker, 644 P.2d 74 (Colo. App. 1981); Marks v. District Court, 643 P.2d 741 (Colo. 1982); Blecker v. Kofoed, 672 P.2d 526 (Colo. 1983); Garcia v. Title Ins. Co. of Minnesota, 712 P.2d 1114 (Colo. App. 1985). II. Computation. Day of the act or event from which period runs not to be included in computation. In computing any period of time prescribed or allowed by statute, the day of the act or event from which the designated period of time begins to run is not to be included, but the last day of the period is to be included. Cade v. Regensberger, 804 P.2d 238 (Colo. App. 1990). Where a complaint is filed on Saturday, and an adjudication had on the following Thursday, such adjudication is invalid for failure to comply with the statutory requirement of five days' notice of the commencement of the proceedings, Saturday being the filing date and therefore eliminated, and Sunday being excluded under this rule, since, the adjudication was held one day less than the minimum requirement of notice. Okerberg v. People, 119 Colo. 529, 205 P.2d 224 (1949). A motion for a new trial filed on Monday, the eleventh day after the entry of judgment, is timely. Bursack v. Moore, 165 Colo. 414, 439 P.2d 993 (1968). In computing the time for serving subpoenas, computation shall not include the day of the act or intermediate Saturdays, Sundays, and legal holidays. Thus, subpoenas which were served on Friday morning, directing the witnesses to appear on Monday morning, were not served 48 hours before the time the witnesses were to appear and were properly quashed. Wilkerson v. State, 830 P.2d 1121 (Colo. App. 1992). Applied in N.E., Inc. v. Iliff & Monaco Assocs., 890 P.2d 146 (Colo. App. 1994). III. Enlargement. A. In General. The time limits set by the court cannot be extended by a stipulation of the parties to a motion requesting an extension, unless the court approves. Moyer v. Empire Lodge Homeowner's Assoc., 78 P.3d 313 (Colo. 2003). The granting of an extension of the period allowed for the filing of a reporter's transcription with the clerk rests within the sound discretion of the trial court. Mitchell v. Espinosa, 125 Colo. 267, 243 P.2d 412 (1952). The action taken will not be disturbed on review in the absence of a clear showing of abuse of that discretion. Mitchell v. Espinosa, 125 Colo. 267, 243 P.2d 412 (1952); Farmer v. Norm "Fair Trade" Stamp, Inc., 164 Colo. 156, 433 P.2d 490 (1967). Where a reporter's transcript is lodged with the clerk late after the entry of judgment, no application having been made for extension of time pursuant to section (b) of this rule, the reporter's transcript will be ordered stricken from the record on appeal. Hildenbrandt v. Hall, 129 Colo. 16, 269 P.2d 708 (1954). Where it is clearly manifest that no attempt was made to comply with the provisions concerning the filing of reporter's transcripts, nor was any relief sought from their more or less strict requirements through resort to the simple procedure provided by section (b) of this rule, it is the disagreeable duty of an appellate court to be obliged to adhere to established precedent that the reporter's transcript be stricken from the record on appeal. Continental Air Lines v. City & County of Denver, 129 Colo. 1, 266 P.2d 400 (1954); Freeman v. Cross, 134 Colo. 437, 305 P.2d 759 (1957). Where a case is before an appellate court on appeal, a motion for enlargement of time for filing a transcript of record should be made to the appellate court, not the trial court. Moreau v. Buchholz, 124 Colo. 302, 236 P.2d 540 (1951). Removal to federal court made within extended time is timely. When the time for answer after service of summons has been extended by a state court, a motion for removal to a federal court made within the extended time is timely made. Oldland v. Gray, 179 F.2d 408 (10th Cir.), cert denied, 339 U.S. 948, 70 S. Ct. 803, 94 L. Ed. 1362 (1950). When no motion to extend is made pursuant to this rule, it may be stricken. When one files no motion to extend, nor does the trial court on its own motion extend a period before its expiration, and after the time expires, defendant files no motion alleging excusable neglect in failing to comply with the time limitation set by the court, there is no basis for the court to deny a motion to strike the motion in view of the provisions of section (b) of this rule. AA Constr. Co. v. Gould, 28 Colo. App. 161, 470 P.2d 916 (1970). Deposit of motion in mail on last day of extension not a sufficient filing. Where, under this rule, a 15-day period was allowed a proponent of a will to make a motion and on the fifteenth day the original motion was deposited in the United States mail for delivery to the court, such delivery was not a sufficient filing, since the deposit of the motion with the clerk, with intent that he retain it, he being in any sufficient manner notified of this purpose, is the essential thing to constitute a filing. Niles v. Shinkle, 119 Colo. 458, 204 P.2d 1077 (1949). Amendment to timely filed objection permitted. There is no prohibition against filing an amendment to a timely filed objection to a master's report before a hearing on that objection has occurred. Rocky Mt. Power Co. v. Colo. River Water Conservation Dist., 646 P.2d 383 (Colo. 1982). The trial court has broad latitude under section (b)(2) in permitting enlargement of time within which to file responsive pleadings. People v. McBeath, 709 P.2d 38 (Colo. App. 1985). For history of section (b), see In re Van Camp, 632 P.2d 1062 (Colo. App. 1981). Applied in Walter v. Walter, 136 Colo. 405, 318 P.2d 221 (1957); Stuckman v. Kasal, 158 Colo. 232, 405 P.2d 948 (1965). B. Before Expiration. Under section (b)(1) of this rule, enlargements of time are so readily obtainable where application is made therefor within apt time that there is rarely an occasion where failure to do so would appear to be excusable. Smith v. Woodall, 129 Colo. 435, 270 P.2d 746 (1954); Freeman v. Cross, 134 Colo. 437, 305 P.2d 759 (1957). C. After Expiration. Extensions of time are a nullity where they are not obtained in the manner prescribed in section (b)(2) of this rule. Marcotte v. Olin Mathieson Chem. Corp., 162 Colo. 131, 425 P.2d 37 (1967). The court's failure to act on a motion to enlarge time period before the time has expired does not automatically extend an existing deadline. Moyer v. Empire Lodge Homeowner's Assoc., 78 P.3d 313 (Colo. 2003). Court's permission on motion with cause shown is necessary. Authority, under this rule, for a court to permit a paper to be filed upon cause shown and on motion therefor, in the case of excusable neglect, is certainly not authority for such filing without permission of the court, without cause shown, and without motion therefor. Niles v. Shinkle, 119 Colo. 458, 204 P.2d 1077 (1949). The trial court has broad latitude under the provisions of section (b)(2) of this rule. Farmer v. Norm "Fair Trade" Stamp, Inc., 164 Colo. 156, 433 P.2d 490 (1967). A court of review will assume that an extension was properly made, in the absence of proper objections to the order of the court. Niles v. Shinkle, 119 Colo. 458, 204 P.2d 1077 (1949). A trial court may, for good cause, allow an extension of time to file an answer, even though the original time limit has passed. Reap v. Reap, 142 Colo. 354, 350 P.2d 1063 (1960). Under the language of this rule, the 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). Exception not expanded to reliance on postal employee's assurance of timely delivery. The exception to the requirement of strict compliance with the time limits for filing new trial motions will not be expanded to include late filings resulting from counsel's reliance on a postal employee's assurance of timely delivery, because such expansion would be inconsistent with the language of section (b) and with the policy of giving finality to judgments after a reasonable time has been allowed to seek appellate review. Schuster v. Zwicker, 659 P.2d 687 (Colo. 1983). "Excusable neglect" occurs when there has been a failure to take proper steps at the proper time, not in consequence of carelessness, but as the result of some unavoidable hindrance or accident. Farmers Ins. Group v. District Court, 181 Colo. 85, 507 P.2d 865, cert. denied, 414 U.S. 878, 94 S. Ct. 156, 38 L. Ed. 2d 123 (1973); Moyer v. Empire Lodge Homeowner's Assoc., 78 P.3d 313 (Colo. 2003). If statutory section expressly permits a court to accept nonparty designations filed outside the 90-day period when it determines that a "longer period is necessary", the provisions of section (b)(2) concerning demonstration of "excusable neglect" do not apply. Antolovich v. Brown Group Retail, Inc., 183 P.3d 582 (Colo. App. 2007). In general, most such situations involve unforeseen occurrences. It is impossible to describe the myriad situations showing excusable neglect, but, in general, most situations involve unforeseen occurrences such as personal tragedy, illness, family death, destruction of files, and other similar situations which would cause a reasonably prudent person to overlook a required deadline date in the performance of some responsibility. Farmers Ins. Group v. District Court, 181 Colo. 85, 507 P.2d 865, cert. denied, 414 U.S. 878, 94 S. Ct. 156, 38 L. Ed. 2d 123 (1973). Failure to act due to carelessness and negligence is not excusable neglect. Farmers Ins. Group v. District Court, 181 Colo. 85, 507 P.2d 865, cert. denied, 414 U.S. 878, 94 S. Ct. 156, 38 L. Ed. 2d 123 (1973). Section (b) of this rule provides that a court may not extend the time for taking any action under C.R.C.P. 50(b) (provisions now in C.R.C.P. 59 ); therefore, filing a motion for judgment notwithstanding the verdict within 10 days after receipt of verdict is mandatory, and unless such motion is filed within the time prescribed the court has no power to pass on it. Ross v. Arrow Mfg. Co., 134 Colo. 530, 307 P.2d 196 (1957). An order for the enlargement of the time within which a motion for a direct verdict after verdict can be filed is abortive in view of the specific provisions of section (b) of this rule prohibiting such enlargement. Mumm v. Adam, 134 Colo. 493, 307 P.2d 797 (1957). A trial court cannot enlarge the time for the filing of a motion for new trial after the expiration of the specified period permitted by the rules. Austin v. Coll./Univ. Ins. Co. of Am., 30 Colo. App. 502, 495 P.2d 1162 (1972). Rule is controlling over C.R.C.P. 60(b), as to whether a trial court may extend the period of time for filing a motion for new trial under C.R.C.P. 59(b) (now C.R.C.P. 59(d) ), after the original filing period has expired. Liberty Mutual Ins. Co. v. Safeco Ins. Co., 679 P.2d 1115 (Colo. App. 1984). District court is without discretionary power to deny a motion for default judgment where the opposing party, not an agency of the state, fails to comply with a court order requiring a certain act be done within a specified time and, after expiration of that time, fails to establish such failure to act was a result of excusable neglect. Sauer v. Heckers, 34 Colo. App. 217, 524 P.2d 1387 (1974). A trial court is in error in extending the period of redemption after the redemption period had already expired; redemption is a purely statutory matter, and there is no rule that would allow the court to enlarge it. AA Constr. Co. v. Gould, 28 Colo. App. 161, 470 P.2d 916 (1970). Applied in Business & Prod. Promotion, Inc. v. East Tincup, Inc., 154 Colo. 268, 389 P.2d 851 (1964). IV. Unaffected by Expiration of Term. Law reviews. For comment on Green v. Hoffman appearing below, see 24 Rocky Mt. L. Rev. 376 (1952). Section (c) of this rule held inapplicable where section (b) excludes matters under C.R.C.P. 59(e). Green v. Hoffman, 126 Colo. 104, 251 P.2d 933 (1952).
For times courts open during terms of court, see C.R.C.P. 77(a); for motions for post-trial relief, see C.R.C.P. 59; for relief from judgment, order, or proceedings for mistakes, inadvertence, surprise, excusable neglect, and fraud, etc., see C.R.C.P. 60(b); for process, see C.R.C.P. 4; for service and filing of pleadings and other papers, see C.R.C.P. 5; for time for filing opposing affidavits for a new trial, see C.R.C.P. 59(d).