Walker Commercial, Inc. v. Brown

• Citation: 492 P.3d 1045,2021 COA 60
• Decision Date: 29 April 2021
• Docket Number: Court of Appeals No. 20CA0205
• Court: Colorado Court of Appeals
• Parties: WALKER COMMERCIAL, INC., Plaintiff-Appellant, v. Marshall P. BROWN, in his official capacity as Director of Water of the City of Aurora, Colorado, Defendant-Appellee.

492 P.3d 1045

2021 COA 60

WALKER COMMERCIAL, INC., Plaintiff-Appellant,

v.Marshall P. BROWN, in his official capacity as Director of Water of the City of Aurora, Colorado, Defendant-Appellee.

Court of Appeals No. 20CA0205

Colorado Court of Appeals, Division II.

Announced April 29, 2021

Cambridge Law, LLC, Reid Allred, Jared Haynie, Denver, Colorado, for Plaintiff-Appellant

Daniel L. Brotzman, City Attorney, Julie Bannon, Assistant City Attorney, Aurora, Colorado; Hamre, Rodriguez, Ostrander, and Dingess, P.C., Richard F. Rodriguez, Denver, Colorado for Defendant-Appellee

Laurel Witt, David Broadwell, Denver, Colorado, for Amicus Curiae Colorado Municipal League

Opinion by JUDGE BROWN

¶ 1 Plaintiff, Walker Commercial, Inc. (Walker), appeals three district court orders that resulted in the dismissal of its C.R.C.P. 106(a)(4) complaint seeking review of a fee imposed by the City of Aurora (the City). The district court concluded it lacked jurisdiction because Walker filed the complaint two days after the deadline set by C.R.C.P. 106(b). It also denied Walker's motion for extension of time filed pursuant to C.R.C.P. 6(b)(2), concluding that C.R.C.P. 6(b) does not authorize a court to extend a jurisdictional deadline like the one in C.R.C.P. 106(b) and that, even if C.R.C.P. 6(b)(2) could apply, Walker failed to demonstrate that its untimely filing resulted from excusable neglect.

¶ 2 As an issue of first impression, we conclude that C.R.C.P. 6(b)(2) authorizes a court to accept a C.R.C.P. 106(a)(4) complaint filed past the deadline set by C.R.C.P. 106(b) upon a showing of excusable neglect. We also clarify that the standard for evaluating excusable neglect under C.R.C.P. 6(b)(2) parallels the standard under C.R.C.P. 60(b) and requires a balancing of the equities. Because the district court did not consider all the pertinent factors when evaluating Walker's C.R.C.P. 6(b)(2) motion, we reverse the orders and remand the case for further proceedings.

I. Background

¶ 3 In the 1980s, certain real property situated in the City was subdivided and platted to be developed into a self-storage facility (the Property). Walker bought the Property in 2011. In 2017, Walker's proposal to develop the Property was approved.

¶ 4 In April 2019, Walker received an invoice from the City for a storm drain development fee (the Fee). Walker disagreed that it owed the Fee, paid it under protest, and petitioned the City's Director of Water (Director) for an administrative hearing pursuant to the Aurora City Code (the Code).

¶ 5 In May 2019, a city attorney left Walker's attorney a voicemail message stating that the City had decided to refund the Fee because it agreed the Fee was not due or owing. But the Director later emailed Walker's attorney retracting the city attorney's communication that the Fee was not due or owing and insisting a hearing be scheduled.

¶ 6 On July 15, 2019, the Director held a hearing on Walker's petition. On August 13, 2019, the Director emailed Walker stating that the City would accept $74,140.32 for the Fee.

¶ 7 Walker's attorney called the City to determine whether the email was the Director's final decision and learned that it was. So, the next day, Walker's attorney emailed the City: "Per our phone conversation, this email confirms that the [August 13 email] was intended as (and is) the City's final decision on the matter." The City did not mail or personally serve the final decision on Walker.

¶ 8 On September 12, 2019, thirty days after the August 13 email, Walker filed a complaint in the district court pursuant to C.R.C.P. 106(a)(4) seeking review of the Director's final decision. The complaint alleged that it was timely filed because the applicable provision of the Code provides a thirty-day deadline to appeal.

¶ 9 The City filed a motion to dismiss Walker's claim for lack of subject matter jurisdiction pursuant to C.R.C.P. 12(b)(1), arguing that Walker's complaint was time barred under C.R.C.P. 106(b), which states that a complaint seeking review under C.R.C.P. 106(a)(4) "shall be filed in the district court not later than 28 days after the final decision of the body or officer." In lieu of a response to the motion to dismiss, Walker filed an amended complaint. It reasserted its C.R.C.P. 106(a)(4) claim but, among other differences, alleged that the Director's August 13 email was not a "final decision," so the clock on its time to appeal had never started running.

¶ 10 The City filed a motion to dismiss the amended complaint, reasserting its argument that the action was time barred. Walker filed a response and a motion for an extension of time pursuant to C.R.C.P. 6(b)(2), in which it argued that its untimely filing of the original complaint was the result of excusable neglect.

¶ 11 On December 20, 2019, the district court issued two orders: (1) a single-paragraph order concluding that Walker's amended complaint was untimely filed and dismissing the case for lack of subject matter jurisdiction; and (2) an order denying Walker's motion for an extension of time, concluding that C.R.C.P. 6(b) is inapplicable to the jurisdictional deadline contained in C.R.C.P. 106(b) and that, in any event, Walker's mistake or ignorance of the law was not excusable neglect.

¶ 12 Then, on January 28, 2020, the district court issued an eight-page order titled, "Order re: Defendant's Motion to Dismiss Per C.R.C.P. 12(b)(1)." In this third order, the court further explained why Walker's C.R.C.P. 106(a)(4) action was time barred, why Walker failed to demonstrate excusable neglect, and why holding Walker to the C.R.C.P. 106(b) deadline did not violate due process.¹

II. Analysis

¶ 13 Walker contends that its C.R.C.P. 106(a)(4) action was timely filed in the district court because the deadline in C.R.C.P. 106(b) does not apply. If we conclude that the C.R.C.P. 106(b) deadline applies, however, then Walker contends that enforcing that deadline under the circumstances presented here violates its right to due process. In the alternative, Walker contends that the untimely filing of its complaint was the result of excusable neglect and that the court should have accepted the complaint two days late pursuant to C.R.C.P. 6(b)(2). Finally, Walker contends that the district court erred by dismissing the third claim asserted in its amended complaint because that claim is not governed by the deadline in C.R.C.P. 106(b).

¶ 14 We conclude that the deadline in C.R.C.P. 106(b) applies to Walker's C.R.C.P. 106(a)(4) complaint and that holding Walker to that deadline under the circumstances of this case does not violate its right to due process. We also conclude that C.R.C.P. 6(b)(2) authorizes a court to accept a C.R.C.P. 106(a)(4) complaint filed beyond the deadline set by C.R.C.P. 106(b) upon a showing of excusable neglect. And we conclude that the standard for evaluating excusable neglect under C.R.C.P. 6(b)(2) parallels the excusable neglect standard under C.R.C.P. 60(b) and requires a balancing of the equities.

A. Walker's C.R.C.P. 106(a)(4) Complaint Was Untimely

1. C.R.C.P. 106(b) ’s Twenty-Eight-Day Deadline Applies

¶ 15 Walker contends that the deadline in C.R.C.P. 106(b) applies only where a statute authorizes judicial review of agency action, not where, as here, an ordinance authorizes such review. It argues that a thirty-day deadline set forth in the Code controls. We disagree.

¶ 16 We review de novo whether a district court has subject matter jurisdiction over an action. Maslak v. Town of Vail , 2015 COA 2, ¶ 10, 345 P.3d 972. And to the extent our review requires us to interpret the Colorado Rules of Civil Procedure, we do so de novo. Id.

¶ 17 To interpret the rules, we apply well-settled principles of statutory construction. Schaden v. DIA Brewing Co. , 2021 CO 4M, ¶ 32, 478 P.3d 1264. Thus, we interpret the rules according to their commonly understood and accepted meanings. Id. We read them as a whole, giving consistent, harmonious, and sensible effect to all of their parts and avoiding constructions that would render any words or phrases superfluous or lead to illogical or absurd results. Id. ; accord Willhite v. Rodriguez-Cera , 2012 CO 29, ¶ 9, 274 P.3d 1233. We also construe the rules "liberally to effectuate their objective to secure the just, speedy, and inexpensive determination of every case and their truth-seeking purpose." Maslak , ¶ 10 (quoting DCP Midstream, LP v. Anadarko Petroleum Corp. , 2013 CO 36, ¶ 24, 303 P.3d 1187 ); see also C.R.C.P. 1.

¶ 18 C.R.C.P. 106(a)(4) authorizes judicial review "[w]here, in any civil matter, any governmental body or officer or any lower judicial body exercising judicial or quasi-judicial functions has exceeded its jurisdiction or abused its discretion, and there is no plain, speedy, and adequate remedy otherwise provided by law." C.R.C.P. 106(b) provides, in relevant part, as follows:

Where a statute provides for review of the acts of any governmental body or officer or judicial body by certiorari or other writ, or for a proceeding in quo warranto, relief therein provided may be had under this Rule. If no time within which review may be sought is provided by any statute , a complaint seeking review under subsection (a)(4) of this Rule shall be filed in the district court not later than 28 days after the final decision of the body or officer.

(Emphasis added.) The rule is clear that, unless a statute provides a different deadline for seeking review of a final agency decision, a Rule 106(a)(4) complaint must be filed within twenty-eight days.

¶ 19 Notwithstanding the plain language of the rule, Walker argues that the deadline in Rule 106(b) applies only when judicial review of the final agency decision is authorized in the first instance by a statute — not an ordinance. It asserts that the first sentence of subsection (b) is a specific authorization to seek judicial review whenever a statute provides for it, and that the second sentence means that "if the authorizing statute — i.e., the same ‘statute’...