Farm Deals, LLLP v. State, Colorado Department of Revenue

2012 COA 6, 300 P.3d 921, 2012 WL 19763, 2012 Colo. App. LEXIS 17
CourtColorado Court of Appeals
DecidedJanuary 5, 2012
DocketNo. 11CA2467
StatusPublished
Cited by5 cases

This text of 2012 COA 6 (Farm Deals, LLLP v. State, Colorado Department of Revenue) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Farm Deals, LLLP v. State, Colorado Department of Revenue, 2012 COA 6, 300 P.3d 921, 2012 WL 19763, 2012 Colo. App. LEXIS 17 (Colo. Ct. App. 2012).

Opinion

Opinion by

Judge J. JONES.

T1 Petitioners, Farm Deals, LLLP; Farms of Hasty, LLLP; Kindone, LLLP; and Vanman, LLLP, have filed a petition to appeal an interlocutory order of the trial court pursuant to section 13-4-102.1, C.R.S. 2011, and C.A.R. 4.2. Their underlying motion for certification was not filed in the trial court within the time provided by CAR. 4.2(c). We conclude that the trial court erred in allowing petitioners to file their motion for certification of the order sought to be appealed beyond that deadline because a trial court does not have authority to extend it. Petitioners have also moved for leave to file the petition late. Because we conclude that petitioners have not shown good cause for their failure to file the petition by the deadline in C.A.R. 4.2(d), we deny the motion and dismiss the petition.

I. Background

T2 Petitioners filed an appeal in the trial court challenging determinations by the Colorado Department of Revenue denying income tax credits for conservation easements during the 2003 tax year. In their complaint, petitioners allege that they made charitable contributions of conservation easements during 2003, and that they sold resulting conservation easement tax credits to various transferees for value, but that the Department disallowed most of the value of the gifts. Petitioners sought a determination of the rights of the transferees in the conservation easement tax credits. They did not, however, name the transferees as parties.

13 Respondents, the Department and its Executive Director, moved for an order requiring petitioners to join the transferees as parties pursuant to C.R.C.P. 19. Over petitioners' objection, the court granted the motion.

14 Respondents then filed a motion requesting the court to order petitioners to personally serve each of the transferees (of whom there are about eighty) with a summons and the complaint in accordance with C.R.C.P. 4. Contending that service by mail is permitted in these cireumstances under section 39-21-105.5, C.R.S.2011, petitioners opposed the motion.

5 By order dated and filed September 29, 2011, the court ruled as follows:

1. Section 89-21-105.5 does not apply here.
2. Section 39-22-522.5, C.R.S.2011, which specifically applies to the resolution of disputes over conservation easement tax credits, requires district courts to hear appeals thereunder "in accordance with the Colorado rules of civil procedure." See § 39-22-522.5(2)(n).
3. Therefore, petitioners must personally serve the transferees in accordance with C.R.C.P. 4.
4. The summons to each transferee must advise the transferee of the action, inform the transferee that he or she has twenty days to answer or otherwise respond to the complaint, and inform the transferee that a default judgment may be entered against him or her if he or she fails to timely respond to the complaint.

T6 At a status conference on October 12, 2011, the parties and the court apparently discussed the possibility of petitioners attempting an interlocutory appeal of the court's September 29 order. That same day, the court entered an order stating, as relevant here, that petitioners "shall notify the Court and opposing counsel by October 19, 2011, whether or not they will seek an interlocutory appeal of the order requiring them to personally serve their tax credit transferees."

T7 On October 19, 2011, petitioners filed a motion in the trial court requesting certification of the September 29 order for interlocutory appeal under section 18-4-102.1. See CAR. 4.2(c). Respondents opposed that motion for several reasons, including that petitioners had not filed it within fourteen days of September 29, as required by CAR. 4.2(c).

T8 By order dated November 15, 2011, the [923]*923court granted the motion for certification.1 As to the timeliness issue, the court ruled that it had authority under C.R.C.P. 6(b) to extend the deadline in C.A.R. 4.2(c), and that its October 12 order had done so.

- T9 On December 7, 2011, petitioners filed their petition to appeal in this court, requesting leave to appeal the service of process issues decided by the trial court in its September 29 order and certified by the trial court in its November 15 order. See C.A.R. 4.2(d). Recognizing that they had filed their petition with this court after the fourteen-day deadline set by C.A.R. 4.2(d), petitioners also filed a motion to permit the late filing of the petition.

110 These cireumstances require us to decide certain procedural questions arising under recently adopted C.AR. 4.2; first, whether a trial court can extend the deadline for filing a motion for certification under C.AR. 4.2(c); and second, whether the deadline in C.AR. 4.2(d) for filing a petition to appeal is jurisdictional.

II. Discussion

1 11 Section 13-4-102.1(1) provides:

The court of appeals, under rules promulgated by the Colorado supreme court, may permit an interlocutory appeal of a certified question of law in a civil matter from a district court or the probate court of the city and county of Denver if;
(a) The trial court certifies that immediate review may promote a more orderly disposition or establish a final disposition of the litigation; and
(b) The order involves a controlling and unresolved question of law.

'I 12 The Colorado Supreme Court promulgated C.A.R. 4.2 to establish procedures to be followed by litigants and courts in applying section 13-4-102.1. That rule provides, in pertinent part, that a party desiring to appeal an interlocutory order must, first, file a motion for certification of issues in the trial court and, second, file a petition to appeal the certified order in the court of appeals. It also specifies when a party desiring to appeal an interlocutory order must file the motion and subsequent petition. C.AR. 4.2(c) provides that "[the party seeking to appeal shall move for certification or submit a stipulation signed by all parties within fourteen days after the date of the order to be appealed...." CAR. 4.2(d) provides that if the trial court certifies an order for interlocutory appeal, "the party seeking an appeal shall file a petition to appeal with the clerk of the court of appeals with an advisory copy served on the clerk of the trial court within fourteen days of the date of the trial court's certification."

{13 Here, petitioners did not meet either deadline.

A. A Trial Court May Not Extend the C.A.R. 4.2(c) Deadline

114 Assuming that the trial court's October 12 order extended the fourteen-day deadline in C.AR. 4.2(c) for filing a motion for certification, we conclude that the court did not have authority to do so under C.R.C.P. 6(b). That rule governs extensions of time, but only "[when by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time. ..." The phrase "these rules" plainly refers to the Colorado Rules of Civil Procedure, of which C.R.C.P. 6 is a part. Therefore, by its own clear terms, C.R.C.P. 6(b) does not apply to a time period specified by the Colorado Appellate Rules. See People v. Fuqua, 764 P.2d 56

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Cite This Page — Counsel Stack

Bluebook (online)
2012 COA 6, 300 P.3d 921, 2012 WL 19763, 2012 Colo. App. LEXIS 17, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farm-deals-lllp-v-state-colorado-department-of-revenue-coloctapp-2012.