Hillen v. Colorado Compensation Ins. Authority, 93CA0241
| Decision Date | 08 September 1994 |
| Docket Number | No. 93CA0241,93CA0241 |
| Citation | 883 P.2d 586 |
| Parties | Shelley HILLEN, Plaintiff-Appellant, v. COLORADO COMPENSATION INSURANCE AUTHORITY, a corporation and political subdivision of the State of Colorado, Defendant-Appellee. . I |
| Court | Colorado Court of Appeals |
Van Horne, Noall & Hodges, P.C., Richard M. Hodges, L. Scott Noall, Anthony J. Kohler, Denver, for plaintiff-appellant.
Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Larry D. Tannenbaum, Sr. Asst. Atty. Gen., Tilly & Graves, P.C., Greg L. Perczak, Christopher P. Seerveld, Denver, for defendant-appellee.
Dallas, Holland & O'Toole, P.C., Neil D. O'Toole, Denver, Dawes and Harriss, P.C., Robert C. Dawes, Durango, for amicus curiae The Colorado Trial Lawyers Ass'n and Workers Compensation Educ. Ass'n.
Opinion by Judge METZGER.
Plaintiff, Shelley Hillen, appeals the judgment dismissing her claims against defendant, Colorado Compensation Insurance Authority. We dismiss the appeal.
Defendant asserts that this court lacks jurisdiction to consider the issues on the merits because the notice of appeal was untimely filed. We agree.
C.A.R. 4(a) requires an appeal in a civil case to be filed with the appellate court within 45 days from the date of the mailing of the notice of judgment by the trial court. The filing of a notice of appeal within the time limits established by C.A.R. 4(a) is mandatory and jurisdictional. Sheraton Steamboat Corp. v. State Board of Assessment Appeals, 765 P.2d 1050 (Colo.App.1988).
C.A.R. 4(a) goes on to provide for an extension of time. It states:
Upon a showing of excusable neglect, the appellate court may extend the time for filing the notice of appeal by a party for a period not to exceed thirty days from the expiration of the time otherwise prescribed by this section (a). Such an extension may be granted before or after the time otherwise prescribed by this section (a) has expired; but if a request for an extension is made after such time has expired, it shall be made by motion with such notice as the court shall deem appropriate.
Therefore, in some instances, a party may have a total of 75 days from the date of the trial court's mailing of the judgment to file a notice of appeal.
There is a limited exception to this general rule, which applies if the party filing a late notice of appeal can establish the existence of unique circumstances for the late filing. Converse v. Zinke, 635 P.2d 882 (Colo.1981).
This court has jurisdiction to consider a request to file a late notice of appeal if unique circumstances exist. P.H. v. People, 814 P.2d 909 (Colo.1991). In P.H., our supreme court determined that, if counsel reasonably relies on an erroneous trial court action which results in the late filing of a notice of appeal, then unique circumstances have been established. See also Weason v. Colorado Court of Appeals, 731 P.2d 736 (Colo.1987) ().
No unique circumstances exist here. The judgment entered on December 2, 1992, by the trial court provided: "A judgment of dismissal is entered, dismissing the action with prejudice.... plaintiff's motion for rule 54(b) certification is moot." This was sufficiently clear to apprise counsel that a final, appealable judgment had been entered.
And, the procedural history of this case after the entry of judgment reveals no unique circumstances that would justify the late filing of the motion for extension of time to file the notice of appeal.
The register of actions shows that the trial court sent the judgment to counsel on December 2, 1992. Therefore, the original 45-day appeal period expired on January 19, 1993. C.A.R. 4(a).
On February 5, 1993, plaintiff filed a notice of appeal in the Colorado Supreme Court. On February 12, 1993, the supreme court transferred the appeal to the Court of Appeals by order, and noted: "The Court makes no determination as to the timeliness of this appeal."
Then on February 19, 1993, after the expiration of the 75 days provided in C.A.R. 4(a), defendant filed a motion in the Court of Appeals to dismiss the appeal for lack of jurisdiction because of untimely filing. Plaintiff filed a response to that motion to dismiss and a motion for extension of time to file a notice of appeal on March 4, 1993.
Plaintiff's motion and response listed two grounds to support the request for extension. First, they indicated that, well within the original 45-day filing period, plaintiff's counsel had prepared a notice of appeal and had mailed it to...
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