Part 1: Common Traps to Timely Filing a Notice of Appeal

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Though by no means an exhaustive summary, this two-part article serves as a guide to avoiding traps to timely filing your notice of appeal (and hopefully to avoid that call to your malpractice insurer!). Part One raises some of those traps, and provides suggestions for how to avoid them, and Part Two includes a discussion on what to do if the deadline is missed.

Failure to Follow the Appellate Rules

One of the easiest (and probably the most common) ways to find yourself faced with an untimely filing is simply through failing to read and precisely follow the Colorado Appellate Rules. Failure to read the appellate rules has led to counsel making mistakes that could have been avoided, such as filing the notice of appeal in the trial court, rather than the appellate court; filing a motion for extension of time in the trial court; or simply miscalculating the number of days within which to file the appeal.

The rules explain what cases are governed by which rules, as well as provide information on how to perform the calculations. For example, Rule 26(a) contains a detailed explanation of how time is calculated, including how to treat weekends and legal holidays in the calculation. A careful reading of the rules goes a long way toward ensuring compliance. If you are in doubt about the deadline, filing early is unlikely to create a problem.

Confusion Over the Finality of the Order

Another way attorneys can be trapped into an untimely filing is by misunderstanding when the order from which they are appealing actually became final. In most instances, appeals to the Court of Appeals are from final judgments, and a final judgment is one that ends the action and leaves nothing further for the court to do to figure out the rights of the parties involved. In most instances, this will be fairly clear: case is over = final judgment. But what about the case where the judgment seems final, but there is still something further for the court to do? One major example for Colorado lawyers that fits into this scenario is the issue of attorney fees and costs. Does the judgment become final after this award is reduced to a sum certain? What if counsel waits until this is the case to file the notice of appeal? Unfortunately, the answer to the question is the ubiquitous lawyerly answer: It depends.

The issue of the finality of an order where attorney fees remain outstanding is a particularly thorny issue for Colorado courts. Some opinions have stated that the judgment is final and immediately appealable, despite the fact that attorney fees remain outstanding. In other cases, attorney fees are considered part of the merits of the case and the judgment will not be final until those issues are resolved. Careful review of the cases around this issue is important to make sure that a timely appeal is filed. If you are confused about the effect of this law on your case, one suggestion is to file a notice of appeal once the substantive order is final, then follow up with another notice after attorney fees have been decided, if that is necessary. The appellate court will review the NOA and come to its own conclusion.

Post-Judgment Motions

Filing certain post-judgment motions can affect the calculation of the time period for filing the notice of appeal. For example, in civil cases, certain post-judgment motions filed under C.R.C.P. 59 terminate the running of the time for filing a notice of appeal, as long as they are timely filed and determined within the time specified in C.R.C.P. 59. While most of the time, this should give you MORE time to file, it can present a few tricky issues.

First, not all civil post-judgment motions are created equally when it comes to tolling the time for filing a notice of appeal. C.A.R. 4(a)—the rule that explains which post-trial motions have a tolling effect—includes only specific motions, mostly those filed under C.R.C.P. 59. For instance, filing a motion for relief from the judgment under C.R.C.P. 60 would not affect the time for filing a notice of appeal, which is a puzzling difference.

Second, pay careful attention to the “deemed denied” date. C.R.C.P. 59(j) makes clear that any judgment filed under Rule 59 is deemed denied after 63 days of the date of the filing of the motion. Even if the trial court later enters an order on the motion, after 63 days from the date of filing, the appellate clock ticks on.

The trickiness of post-trial motions can be somewhat alleviated by being diligent about getting a ruling from the court, and again, reading the rules carefully to be sure you haven’t missed something.

Appealing from a Magistrate’s Ruling

One judge has said that the Colorado Rules for Magistrates present “a confusing appellate labyrinth” that unnecessarily sets traps for the unwary. Indeed, many an attorney and pro se party have misinterpreted the rules that govern how an appeal should proceed after a ruling is entered by a magistrate judge in state court.

In fact, the Colorado Court of Appeals just recently announced a case dealing with this very issue, In re Petition of Heotis, 2016 COA 6, which should strike fear into the hearts of anyone appealing from a magistrate’s ruling. In that case, a district court magistrate had denied the request of a teacher to seal the record of a criminal case in which she had been the defendant (the Colorado Department had denied her request to renew her teaching certificate because of the criminal case). The teacher appealed the decision to the district court, which affirmed the magistrate’s order, and then appealed to the Colorado Court of Appeals. The Court of Appeals dismissed the appeal, after concluding it lacked jurisdiction because the notice of appeal was not timely filed. The court reached this decision after concluding that the teacher should not have first filed the appeal in the district court after the magistrate ruled against her, but instead, should have filed directly with the Court of Appeals because the magistrate ruled on the matter by consent. Case over, no appeal.

The Heotis case emphasizes the importance of careful review of the Colorado Rules for Magistrates if you are dealing with a case involving a magistrate, because how you appeal depends on whether the magistrate is hearing a matter by consent or not. If your case involves a ruling by a magistrate, carefully review the applicable rules and statutes to determine where the notice of appeal must be filed.

Certain Types of Cases Are Not Governed by C.A.R. 4

Finally, it is extremely important to remember that not all cases are governed by the 49-day timeline of C.A.R. 4. The following classes of cases are governed by unique rules and statutory schemes: (1) appeals from the Industrial Claim Appeals Office; (2) Appeals from Proceedings in Dependency and Neglect; (3) Appeals from the Denial of a Petition for Waiver of Parental Notification Requirements; and (4) Appeals of Grant or Denial of Class Certification. Most of these involve shorter deadlines than that provided for in C.A.R. 4. If confronted with one of these cases, review these special rules to avoid an untimely filing.

In a similar vein, if you are pursuing an interlocutory appeal, rather than a direct appeal, the rule that authorizes the specific interlocutory appeal sought will almost certainly contain a shorter timeframe, as well as a different procedure, for initiating the appeal. For example, an interlocutory appeal in a civil case must first begin with a motion for the trial court to certify the order within 14 days after the order is entered, and then, within 14 days after the certification has been issued, the party must file a petition with the court of appeals.

Flagging these issues should go a long way toward keeping the path toward appeal clear. If, however, you find you’ve been trapped, check out Part Two for how to do damage control.