Citation240 P.3d 371
Decision Date12 November 2009
Docket NumberNo. 09CA1465.
PartiesTrina GARCIA, Plaintiff-Appellee, v. MEDVED CHEVROLET, INC., d/b/a Medved Cadillac, Inc., d/b/a Medved Cadillac Oldsmobile, Inc., d/b/a Medved Chevrolet-GEO, Inc., d/b/a Medved Oldsmobile, Inc., d/b/a Medved Craig Chevrolet, Inc.; Medved Chevrolet South, Inc., d/b/a Medved Hummer South; Castle Rock Ford-Mercury, Inc., d/b/a Medved Ford Lincoln Mercury, Inc., d/b/a Medved Brutyn Ford Lincoln Mercury, Inc.; Medved Buick Pontiac GMC, Inc.; Lakewood Chrysler-Plymouth, Inc., d/b/a Medved Chrysler Jeep, Inc.; Medved Chrysler Jeep Dodge South, Inc.; Medved Chrysler Jeep Dodge, Inc.; Medved Pontiac Buick GMC, Inc.; Medved Suzuki North, Inc.; Medved Suzuki South, Inc.; and John Medved, individually, Defendants-Appellants.
CourtCourt of Appeals of Colorado



Hale Friesen, LLP, Daniel E. Friesen, Peter J. Krumholz, Denver, Colorado, for Plaintiff-Appellee.

Reilly Pozner LLP, Daniel M. Reilly, Larry Pozner, Anthony L. Giacomini, Molly H. Ferrer, Denver, Colorado; Holley, Albertson & Polk P.C., Dennis B. Polk, Golden, Colorado, for Defendants-Appellants.

Opinion by Judge GRAHAM.

We consider a petition for interlocutory appeal of class action certification pursuant to C.R.C.P. 23, together with the request of plaintiff, Trina Garcia, on behalf of herself and all those similarly situated, to dismiss the petition as untimely. The petition seeks review of the trial court's order granting class certification in a suit against defendants, ten automobile dealerships, Medved Chevrolet, Inc.; Medved Chevrolet South, Inc.; Castle Rock Ford-Mercury, Inc.; Medved Buick Pontiac GMC, Inc.; Lakewood Chrysler-Plymouth, Inc.; Medved Chrysler Jeep Dodge South, Inc.; Medved Chrysler Jeep Dodge, Inc.; Medved Pontiac Buick GMC, Inc.; Medved Suzuki North, Inc.; and Medved Suzuki South, Inc.; and one individual, John Medved, for violation of the Colorado Consumer Protection Act (CCPA) by failing adequately to disclose the identity and cost of dealer-added aftermarket products in connection with the sale of new automobiles. We reverse and remand.

I. Timeliness of Petition Seeking Review

We first consider the timeliness of the petition. Plaintiff has filed a motion seeking to dismiss defendants' petition for review, arguing that defendants missed a ten-day interlocutory appeal deadline imposed by section 13-20-901, C.R.S.2009. We will consider the petition because we deem it to have been timely filed.

The trial court's order granting class certification was entered on June 26, 2009. Defendants' petition was filed on July 13, 2009. We conclude that the petition was filed within ten days, excluding intervening weekend days and holidays. Our conclusion of timeliness requires us to construe both section 13-20-901 and our appellate rules.

When interpreting statutes, our primary task is to give effect to the General Assembly's intent by looking to a statute's plain language, and we construe the words of the statute based upon their commonly accepted meanings. Jenkins v. Panama Canal Ry. Co., 208 P.3d 238, 241 (Colo.2009) (citing Reg'l Transp. Dist. v. Voss, 890 P.2d 663, 667 (Colo.1995)). Where the language is plain and unambiguous, we need not resort to further canons of interpretation. Frazier v. People, 90 P.3d 807, 810 (Colo.2004).

We interpret rules of procedure consistently with principles of statutory construction. People v. Stanley, 169 P.3d 258, 260 (Colo.App.2007) (citing People v. Shell, 148 P.3d 162, 178 (Colo.2006)). A reviewing court must consider the rule as a whole and interpret it so as to give consistent, harmonious, and sensible effect to all its parts. Leaffer v. Zarlengo, 44 P.3d 1072, 1078 (Colo.2002). However, if it is impossible to reconcile all the provisions of a rule, specific provisions typically prevail over general provisions. Id. (citing § 2-4-205, C.R.S.2009). We will not follow a literal interpretation leading to an illogical or absurd result. Frazier, 90 P.3d at 811.

Section 13-20-901(1), C.R.S.2009, provides in pertinent part:

A court of appeals may, in its discretion, permit an interlocutory appeal of a district court's order that grants or denies class action certification under court rule so long as application is made ... within ten days after entry of the district court's order.

(Emphasis added.)

The plain language of the statute allows an appellate court to permit the appeal under its rules within ten days after entry of the order. The statute does not set forth a method to compute the ten-day deadline. However, our appellate rules contain a method for computing a ten-day period, allowing a grace period for intervening weekend days and holidays.

C.A.R. 1(b) provides that the taking of appeals “shall be in accordance with [the appellate court's] rules except for special proceedings in which a different time period is set by statute for the taking of an appeal.”

C.A.R. 3.3 provides that interlocutory appeals of the grant or denial of a class action under C.R.C.P. 23(f) “may be allowed pursuant to the procedures set forth in that rule and C.R.S. § 13-20-[901].” Those procedures specify that the application shall be permitted “under court rule.” C.A.R. 26(a) specifies that in calculating deadlines, the date of the order being appealed shall not be included, and for any period less than eleven days, “intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation.”

We conclude that the General Assembly intended by its plain language for the appellate courts to apply both their rules of procedure and the permission granted in section 13-20-901(1) in considering interlocutory appeals. Thus, we must apply C.A.R. 26(a) together with the grant afforded under the statute to determine when the ten-day deadline occurs.

We are also persuaded that C.A.R. 26(a) should be applied here by Outcelt v. Schuck, 961 P.2d 1077, 1081 (Colo.1998), which similarly applied C.A.R. 26(a) to section 1-40-107(2), C.R.S.2009. That statute prescribes a procedure for appealing a title board's review but does not say how to measure the time limit. The court noted that by its own terms C.A.R. 26(a) is used to measure periods of time prescribed by statute. Outcelt, 961 P.2d at 1081.

We thus conclude that the phrase “under court rule in section 13-20-901(1) applies not just to C.R.C.P. 23 but also to court rules which prescribe the method of computing the time limit to appeal the grant or denial of class certification.

Our conclusion is not altered by section 2-4-108(2), C.R.S.2009, a statute which neither party has cited to us. That statute provides instructions on measuring statutory time periods and directs that in computing a period of days, the first day is excluded and the last day is included unless it is a weekday or a holiday. The section is silent concerning intervening holidays and weekend days. We therefore read its provisions in conjunction with the provisions of C.A.R. 26(a), the court rule which bears directly upon measuring time prescribed by statute.

Applying C.A.R. 26(a) to the question at hand, we determine that the appeal was filed in time. We note that June 26, 2009 fell on a Friday. Giving credit for intervening Saturdays and Sundays, as well as the Independence Day holiday during which court offices were closed, defendants filed their petition seeking review on the tenth business day after June 26, which was July 13, 2009. We therefore determine that the petition seeking review was timely.

II. Exercising Discretion to Grant Interlocutory Review

Initially, to determine whether to grant the petition, it is necessary to apply the five-factor test prescribed in Prado-Steiman v. Bush, 221 F.3d 1266 (11th Cir.2000), and enunciated by a division of this court in Clark v. Farmers Insurance Exchange, 117 P.3d 26, 29 (Colo.App.2004) (relying upon a five-factor test prescribed in Prado-Steiman to determine whether we should exercise our discretion to hear the interlocutory appeal). We conclude that we should review the class certification.

The first factor is known as the “death knell” because it asks whether the trial court's order would, on the one hand, provide an impetus for the plaintiff to cease seeking relief because individual claims are relatively small, or, on the other hand, provide an “irresistible pressure” to settle because the stakes are so high. Clark, 117 P.3d at 29. Here, in our view, the certification of two classes involving the sale of several thousand automobiles, combined with the treble damages and attorney fee provisions of the CCPA, arguably produces an irresistible pressure upon defendants to settle.

Second, we must evaluate whether the appellant makes a threshold showing that the class certification likely constitutes an abuse of discretion. Id. Here, we consider this factor in conjunction with the third: “whether allowing the appeal will permit resolution of an unsettled legal issue.” Id.

In considering this appeal, we are faced squarely with a question not yet considered by any Colorado appellate court. We are asked to determine whether a theory of presumed reliance on material omissions in a consumer protection claim will satisfy the requirement to show a classwide theory of causation and injury sufficient to satisfy the requirements of C.R.C.P. 23. Resolution of these second and third factors indicates, on balance, that we should review the certification.

Applying the fourth and fifth factors is less helpful to our analysis. The fourth factor directs that we should consider the nature of the litigation in the trial court and whether the scope of the classes or the dynamics of the litigation are likely to change as new facts are developed. Id. Defendants urge that the trial court should consider the particular facts of each vehicle sale and that only by doing so can the elements of reliance and damage be determined. Plaintiff contends that the case rises or falls on the basis of uniform...

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    ...representative is capable of fairly and adequately protecting the interests of the class. C.R.C.P. 23(a) ; Garcia v. Medved Chevrolet, Inc. , 240 P.3d 371, 377 (Colo. App. 2009), aff'd , 263 P.3d 92 (Colo. 2011). "[S]o long as the trial court rigorously analyzes the evidence, it retains dis......
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1 books & journal articles
  • New York State class actions: make it work - fulfill the promise.
    • United States
    • Albany Law Review Vol. 74 No. 2, January - January 2011
    • January 1, 2011
    ...v. Robertson, No. 09-619, 2010 WL 2006406 (Ark. 2010) (order granting class certification appealable); Garcia v. Medved Chevrolet, Inc., 240 P.3d 371, 376 (Colo. App. 2009) ("We ... conclude that immediate review of the class certification [order] is appropriate."); Neese v. Satellite Mgmt.......

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