Riggs Oil & Gas Corp. v. Jonah Energy

• Docket Number: Court of Appeals No. 23CA0449
• Decision Date: 23 May 2024
• Citation: 555 P.3d 90,2024 COA 57
• Parties: RIGGS OIL & GAS CORPORATION; Gasconade Oil Co.; Helm Energy, LLC; McLish Resources, L.P., LLLP; and W. Clifton Arbuckle Trust Dated 1/1/1996, Plaintiffs-Appellees, and Los Feliz Oil Company, LLC; Samis Oil Company, Inc.; MKB Energy, L.L.C.; Westar Oil & Gas, Inc.; JJB Energy Ventures, LC; Callaway Oil, L.L.C.; Anadarko Partners II, L.P.; Cartel Petroleum, Inc.; Castlebay Energy LLC; Coyote Energy LLC; S.N.S. Oil & Gas Properties, Inc.; Winchester Energy, LLC; El Dorado Corporation; and Ridgeview Exploration, Inc., Plaintiffs-Intervenors-Appellees, v. JONAH ENERGY LLC, Defendant-Appellant.
• Court: Colorado Court of Appeals

555 P.3d 90

2024 COA 57

RIGGS OIL & GAS CORPORATION; Gasconade Oil Co.; Helm Energy, LLC; McLish Resources, L.P., LLLP; and W. Clifton Arbuckle Trust Dated 1/1/1996, Plaintiffs-Appellees,

and

Los Feliz Oil Company, LLC; Samis Oil Company, Inc.; MKB Energy, L.L.C.; Westar Oil & Gas, Inc.; JJB Energy Ventures, LC; Callaway Oil, L.L.C.; Anadarko Partners II, L.P.; Cartel Petroleum, Inc.; Castlebay Energy LLC; Coyote Energy LLC; S.N.S. Oil & Gas Properties, Inc.; Winchester Energy, LLC; El Dorado Corporation; and Ridgeview Exploration, Inc., Plaintiffs-Intervenors-Appellees,

v.JONAH ENERGY LLC, Defendant-Appellant.

Court of Appeals No. 23CA0449

Colorado Court of Appeals, Div. VII.

Announced May 23, 2024

City and County of Denver District CourtNo. 18CV30838, Honorable Marie Avery Moses, Judge

Boigon Law, Ltd., Howard L. Boigon, Denver, Colorado; Poulson, Odell & Peterson, LLC, Nick A. Swartzendruber, Denver, Colorado, for Plaintiffs-Appellees

Holland & Hart LLP, Stephen G. Masciocchi, Anthony J. Shaheen, Jessica M. Schmidt, Denver, Colorado, for Plaintiffs-Intervenors-Appellees

Wheeler Trigg O’Donnell LLP, Frederick R. Yarger, Joel S. Neckers, Andrew W. Myers, Gabrielle L. Schneiderman, Denver, Colorado; Bryan Cave Leighton Paisner LLP, Paul J. Lopach, Michael J. Hofmann, Stephen D. Rynerson, Denver, Colorado, for Defendant-Appellant

Travis Jordan, Cheyenne, Wyoming, for Amicus CuriaeOffice of the Wyoming Attorney General

Opinion by JUDGE LIPINSKY

¶ 1 Appellate courts lack jurisdiction over untimely appeals.Under C.A.R. 4(a)(1), a party to a civil case seeking to appeal a judgment or order to this court must file a notice of appeal no later than forty-nine days from the date of the judgment or order.

¶ 2 C.A.R. 4(a)(4) contains an exception to this requirement.We will accept an untimely notice of appeal upon a showing that the party seeking to commence the appeal missed the filing deadline due to excusable neglect.

[1]¶ 3"Excusable neglect" is "a somewhat ‘elastic concept,’ "Goodman Assocs., LLC v. WP Mountain Props., LLC,222 P.3d 310, 319(Colo.2010)(quotingPeople v. Wiedemer,852 P.2d 424, 442 n.20(Colo.1993)), that does not encompass the same acts or omissions in every context.A court may excuse a lawyer’s neglect for purposes of certain court rules but not for other rules.

¶ 4 In this case, we consider whether the excusable neglect language in C.A.R. 4(a)(4) allows us to accept an untimely appeal resulting from a lawyer’s failure to read the submission receipt showing that, on the filing deadline, his nonlawyer assistant filed the notice of appeal in the district court, rather than in this court.In analyzing excusable neglect in this context, we decide the novel issue of whether, and, if so, under what circumstances, the appellate courts consider prejudice to the parties in deciding whether to accept an untimely appeal on grounds of excusable neglect under C.A.R. 4(a)(4).

¶ 5We conclude that the lawyer’s failure in this case constitutes mere "garden-variety attorney inattention,"Lowry v. McDonnell Douglas Corp.,211 F.3d 457, 464(8th Cir.2000), which does not rise to the level of excusable neglect.Because we conclude that the untimely filing of the notice of appeal was not the result of excusable neglect, we do not consider whether any party was actually prejudiced.Accordingly, we hold that we lack jurisdiction over this appeal and dismiss it.

I.Background and Procedural History

¶ 6Defendant, Jonah Energy LLC, appeals the district court’s judgment in favor of plaintiffs — Riggs Oil & Gas Corporation; Gasconade Oil Co.; Helm Energy, LLC; McLish Resources, L.P., LLLP; and W. Clifton Arbuckle Trust Dated 1/1/1996 — and plaintiffs-intervenors — Los Feliz Oil Company, LLC; Samis Oil Company, Inc.; MKB Energy, L.L.C.; Westar Oil & Gas, Inc.; JJB Energy Ventures, LC; Callaway Oil, L.L.C.; Anadarko Partners II, L.P.; Cartel Petroleum, Inc.; Castlebay Energy LLC; Coyote Energy LLC; S.N.S. Oil & Gas Properties, Inc.; Winchester Energy, LLC; El Dorado Corporation; and Ridgeview Exploration, Inc.

¶ 7 This is Jonah Energy’s second appeal in this case.In the first appeal, a different division of this court affirmed the district court’s grant of summary judgment in favor of the plaintiffs and plaintiffs-intervenors(collectively, the non-operators).SeeRiggs Oil & Gas Corp. v. Jonah Energy LLC,2020 WL 7407183(Colo. App.No. 19CA1464, Dec. 10, 2020)(not published pursuant to C.A.R. 35(e)).

¶ 8 After Jonah Energy filed a petition for rehearing and a petition for a writ of certiorari, and the parties engaged in an unsuccessful mediation, the non-operators filed a "Motion to Release Escrow and Approve Forms of Assignment."The district court granted the motion on January 23, 2023.This appeal followed.

¶ 9 Pursuant to C.A.R. 4(a)(1), Jonah Energy’s notice of appeal was due in this court no later than March 13, 2023, forty-nine days from January 23, 2023.

¶ 10 The day after the filing deadline, counsel for Jonah Energy filed a notice of appeal in this court, together with a motion for leave to file the notice of appeal out of time that said counsel’s late filing was attributable to excusable neglect.

¶ 11 In the motion, counsel said that, because his law firm’s offices were being remodeled, he and his staff had worked remotely on the day of the filing deadline.He said that he instructed his assistant by email to "file after 4 PM with the Colorado Court of Appeals the attached Notice of Appeal."In a separate email, counsel directed his assistant to file an advisory copy of the notice of appeal in the district court.Counsel asserted that, because he and his legal assistant were working remotely that day, he was unable to supervise his assistant in person when she filed the notice of appeal.

¶ 12 According to counsel, his assistant selected an option in the Colorado courts’ electronic filing system (the e-filing system) to commence a new case filing in the district court, rather than in this court.Because of this error, the assistant filed the notice of appeal in the district court.

¶ 13 At 4:36 p.m. on March 13, the e-filing system sent a submission receipt for "Notice of Appeal" to counsel for Jonah Energy, whose account the assistant had used for the filing.The receipt indicated that the notice of appeal had been filed in "Denver County – District."Additionally, the receipt provided a "CV" rather than a "CA" case number, which further indicated that the notice of appeal had been filed in the district court.

¶ 14 One minute later, the assistant informed counsel by email that she had filed the "new appeal case."At 4:51 p.m., she advised counsel by email that she had submitted "part 2 of this filing"(the advisory copy to the district court).

¶ 15 The next day, the district court sent counsel a rejection notice stating, "Document is captioned for the appeals court."Later that day, counsel filed in this courtJonah Energy’s notice of appeal and the motion for leave.

¶ 16 The non-operators opposed the motion for leave, arguing that Jonah Energy’s untimely filing was not attributable to excusable neglect and that this court should dismiss the appeal for lack of jurisdiction.

¶ 17 A motions division of this court voted two to one to accept the untimely appeal.See Riggs Oil & Gas Corp. v. Jonah Energy LLC,(Colo. App.No. 23CA0449, Mar. 24, 2023)(unpublished order).

¶ 18The parties subsequently filed their merits briefs.In their answer brief, the non-operators renewed their argument that we should dismiss the appeal for lack of jurisdiction because Jonah Energy failed to establish that its counsel missed the filing deadline due to excusable neglect.

¶ 19We ordered the parties to file supplemental briefs addressing the untimely filing of the notice of appeal.See Riggs Oil & Gas Corp. v. Jonah Energy LLC,(Colo. App.No. 23CA0449, Feb. 29, 2024)(unpublished order).

¶ 20 Having reviewed the parties’ supplemental briefing and the authorities cited in those briefs, we agree with the non-operators that Jonah Energy has not shown that its counsel missed the filing deadline for the notice of appeal due to excusable neglect.Accordingly, we dismiss this appeal for lack of jurisdiction.

II.Relevant Law

A.The Law Governing Untimely Appeals in Civil Cases

[2–4]¶ 21"Failure to file a notice of appeal within the prescribed time deprives the appellate court of jurisdiction and precludes a review of the merits."Widener v. Dist. Ct.,200 Colo. 398, 400, 615 P.2d 33, 34(1980)."Strict compliance" with this jurisdictional rule is "required."Collins v. Boulder Urb. Renewal Auth.,684 P.2d 952, 954(Colo. App.1984).Unlike other deadlines in Colorado court rules, an appellate court may not grant a would-be appellant leave to file an untimely notice of appeal in a civil case for "good cause shown."See, e.g.,C.A.R. 26(c)(providing that this court can extend the time for certain filings — but not for notices of appeal in civil cases — "[f]or good cause shown").Rather, C.A.R. 4(a)(4) prescribes that an appellate court may accept an untimely notice of appeal only upon a showing of "excusable neglect."

B.The Meaning of Excusable Neglect

¶ 22Jonah Energy urges us to consider prejudice to the parties as part of our excusable neglect analysis.Specifically, Jonah Energy asserts that the non-operators were not prejudiced by the untimely filing because they received the notice of appeal upon the filing of the notice in the district court on the forty-ninth day following entry of the January 23, 2023, order.Jonah Energy said that, in contrast, it would be significantly prejudiced if not permitted to proceed with its appeal.

¶ 23 The non-operators argue that the Colorado courts do not consider equitable factors, such as prejudice, when considering whether to accept an untimely notice of appeal for excusable neglect under C.A.R. 4(a)(4).They contend that, in this context, we must focus on whether the attorney’s...