The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY April 30, 2026
2026COA33
No. 24CA1860, Rigato v. Exec. Dir. of Colo. Dep’t of Corr. — Civil Procedure — Time — Computation — Correctional Facility Quasi-Judicial Hearing Review — Limitations as to Time
A division of the court of appeals considers for the first time
whether C.R.C.P. 6(a)(1), which provides that, if the last day of a
deadline found in the Colorado Rules of Civil Procedure “is a
Saturday, a Sunday, or a legal holiday,” the deadline is calculated
as “the end of the next day which is not a Saturday, a Sunday, or a
legal holiday,” applies to actions subject to C.R.C.P. 106(b)’s
twenty-eight-day deadline.
The division concludes that C.R.C.P. 6(a)(1)’s computation rule
determines the actual deadline under C.R.C.P. 106(b) when the
twenty-eighth calendar day falls on a Saturday, Sunday, or legal
holiday. The division distinguishes Brown v. Walker Commercial,
Inc., 2022 CO 57, 521 P.3d 1014, in which the Colorado Supreme Court held that C.R.C.P. 6(b) — which authorizes courts to grant
motions for extension of time in civil cases under certain
circumstances — cannot extend C.R.C.P. 106(b)’s filing deadline.
The division explains that Brown does not apply to this case
because C.R.C.P. 6(a)(1), unlike C.R.C.P. 6(b), governs the
computation of deadlines and is not an extension of time rule.
For these reasons, the division reverses the district court’s
order dismissing for lack of jurisdiction the plaintiff’s case
challenging his prison disciplinary convictions. COLORADO COURT OF APPEALS 2026COA33
Court of Appeals No. 24CA1860 Fremont County District Court No. 24CV18 Honorable Patrick W. Murphy, Judge
Nicholas A. Rigato,
Plaintiff-Appellant,
v.
Executive Director of the Colorado Department of Corrections and Warden of Fremont Correctional Facility,
Defendants-Appellees.
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Division V Opinion by JUDGE LIPINSKY Tow and Bernard*, JJ., concur
Announced April 30, 2026
Nicholas A. Rigato, Pro Se
Philip J. Weiser, Attorney General, Kristin K. Lindemann, Assistant Attorney General II, Denver, Colorado, for Defendants-Appellees
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 Plaintiffs in civil cases are granted only a limited amount of
time in which to file their claims. As the Colorado Supreme Court
explained, “As part of our adversarial legal system, we include
limitation periods ‘to promote justice, discourage unnecessary
delay, and forestall prosecution of stale claims.’” Brown v. Walker
Com., Inc., 2022 CO 57, ¶ 34, 521 P.3d 1014, 1021 (quoting Dean
Witter Reynolds, Inc. v. Hartman, 911 P.2d 1094, 1096 (Colo. 1996)).
But determining whether a case was filed by the applicable deadline
can be challenging, as this case demonstrates.
¶2 Appeals of prison disciplinary convictions, which are governed
by C.R.C.P. 106.5, must be filed in district court “not later than
[twenty-eight] days after the final decision of the body or officer.”
C.R.C.P. 106(b).
¶3 Nicholas A. Rigato, an inmate in the custody of the Colorado
Department of Corrections (DOC), filed a case in district court to
appeal the April 29, 2024, decision of his prison’s administrative
head upholding Rigato’s three disciplinary convictions.
Twenty-eight calendar days after April 29 was Monday, May 27 —
the 2024 Memorial Day holiday. Rigato filed his appeal on Tuesday,
May 28 — the next business day following the holiday. The district
1 court dismissed Rigato’s appeal for lack of jurisdiction because
Rigato filed it more than twenty-eight calendar days after the date of
the administrative head’s decision.
¶4 We decide, for the first time in a published opinion, that
C.R.C.P. 6(a)(1)’s calculation rule — if the last day of a deadline
found in a rule of civil procedure “is a Saturday, a Sunday, or a
legal holiday, . . . the period runs until the end of the next day
which is not a Saturday, a Sunday, or a legal holiday” — applies to
actions subject to C.R.C.P. 106(b)’s twenty-eight-day deadline.
Accordingly, the deadline for Rigato to file an appeal in district
court was Tuesday, May 28, 2024; Rigato’s appeal was timely; the
district court had jurisdiction over the appeal; and the court erred
by dismissing the case.
¶5 Thus, we reverse the district court’s dismissal of Rigato’s case
and remand this matter to the district court for further proceedings.
I. Background
¶6 While Rigato was incarcerated at the Four Mile Correctional
Center (the facility), DOC officials charged him with three violations
of the Code of Penal Discipline. Rigato was found guilty of all three
charges following a disciplinary hearing. Rigato appealed his
2 disciplinary convictions to the facility’s administrative head, who
upheld Rigato’s convictions on Monday, April 29, 2024.
¶7 On May 28, Rigato filed in the district court a “[C.R.C.P.] 106.5
Complaint for Review of Quasi-Judicial Action of the [DOC],”
together with a motion “requesting to file without prepayment of
filing fee/service fee.” Rigato named the DOC’s executive director
and other parties as defendants. (We refer to the defendants
collectively as the “DOC.”)
¶8 Three days later, the district court rejected Rigato’s filings
because Rigato had not paid the required filing fee and returned the
documents to him.
¶9 Rigato refiled his papers in the district court, together with a
new motion requesting to file without prepayment of filing and
service fees, on June 10. One week later, a magistrate granted
Rigato’s new fee motion and the court accepted Rigato’s papers,
including his refiled complaint.
¶ 10 The DOC filed a motion to dismiss Rigato’s case for lack of
subject matter jurisdiction under C.R.C.P. 12(b)(1) and C.R.C.P.
106(b). In the motion, the DOC argued that the district court
lacked jurisdiction over the case because Rigato did not file his
3 complaint within twenty-eight calendar days of the administrative
head’s decision.
¶ 11 The district court granted the motion to dismiss, concluding
that “[t]imely filing in [Rigato’s] action expired twenty-eight days
after the [administrative head’s] decision was made.” Under the
court’s reasoning, Monday, May 27, was the deadline for Rigato’s
case and he filed his complaint after that date. For this reason, the
district court dismissed the case for lack of subject matter
jurisdiction.
¶ 12 On appeal, Rigato contends that he timely filed his case and
the district court clerk erred by rejecting his original filings. We
agree with Rigato’s first contention and, therefore, need not reach
his second argument.
II. Analysis
A. Standard of Review
¶ 13 In appeals of orders dismissing civil actions for lack of subject
matter jurisdiction, “we review legal conclusions de novo.” Grant
Bros. Ranch, LLC v. Antero Res. Piceance Corp., 2016 COA 178,
¶ 15, 409 P.3d 637, 641. “Our standard of review when we
4 interpret the Colorado Rules of Civil Procedure is [also] de novo.” In
re Marriage of Durie, 2020 CO 7, ¶ 13, 456 P.3d 463, 468.
¶ 14 “Whenever it appears by suggestion of the parties or otherwise
that the court lacks jurisdiction of the subject matter, the court
shall dismiss the action.” C.R.C.P. 12(h)(3).
B. C.R.C.P. 106.5 Actions
¶ 15 C.R.C.P. 106.5 governs inmate appeals of decisions “resulting
from a quasi-judicial hearing of any [DOC] facility.” C.R.C.P.
106.5(a). This rule applies to inmate appeals of prison
administrators’ decisions upholding disciplinary convictions. See
Garcia v. Harms, 2014 COA 154, ¶ 10, 410 P.3d 561, 565.
¶ 16 C.R.C.P. 106.5 does not contain a filing deadline. Rather, the
deadline for filing a C.R.C.P. 106.5 action is found in C.R.C.P.
106(b). C.R.C.P. 106.5(a) (“The provisions of C.R.C.P. 106(b) . . .
shall govern all cases brought under [C.R.C.P.] 106.5.”); see Garcia,
¶ 4, 410 P.3d at 563.
¶ 17 C.R.C.P. 106(b) says that, “[i]f no time within which review
may be sought is provided by any statute, a complaint seeking
review” of an administrative decision subject to the rule “shall be
filed in the district court not later than [twenty-eight] days after the
5 final decision of the body or officer.” This twenty-eight-day deadline
applies to C.R.C.P. 106.5 actions. See Garcia, ¶ 12, 410 P.3d at
565. (The deadline for filing C.R.C.P. 106.5 actions was thirty days
when Garcia was decided. See id. at ¶ 4, 410 P.3d at 563. The
change in the deadline to twenty-eight days has no impact on
Garcia’s reasoning.)
¶ 18 C.R.C.P. 106(b)’s twenty-eight-day deadline “establishes a
limitation period that is jurisdictional and that must be strictly
enforced.” Brown, ¶ 3, 521 P.3d at 1016. Such deadline thus
“function[s] similarly to a non-claim provision.” Id. at ¶ 38, 521
P.3d at 1022.
¶ 19 Unlike statutes of limitation, which “limit[] the time in which
an action may be brought, but do[] not deprive a court of
jurisdiction,” id. at ¶ 35, 521 P.3d at 1021 (quoting In re Estate of
Kubby, 929 P.2d 55, 57 (Colo. App. 1996)), non-claim provisions
are, “in effect, conditions on the existence of a right to seek
redress,” id. at ¶ 36, 521 P.3d at 1022 (quoting UMB Bank, N.A. v.
Landmark Towers Ass’n, 2017 CO 107, ¶ 28, 408 P.3d 836, 841).
They “prohibit[] the initiation of litigation after the prescribed date
and, therefore, [are] jurisdictional in effect.” Id. (quoting UMB Bank,
6 ¶ 28, 408 P.3d at 841). Thus, the failure to file a timely C.R.C.P.
106.5 action is a “jurisdictional defect.” Gold Star Sausage Co. v.
Kempf, 653 P.2d 397, 400 (Colo. 1982).
¶ 20 Accordingly, if a complaint challenging a prison disciplinary
decision is “filed more than [twenty-eight] days after the date the
agency takes final action, the complaint must be dismissed for lack
of subject matter jurisdiction.” Wallin v. Cosner, 210 P.3d 479, 480
(Colo. App. 2009) (applying C.R.C.P. 106(b)’s prior thirty-day
deadline); see Garcia, ¶¶ 4, 12, 410 P.3d at 563, 565 (concluding
that the trial court did not err by dismissing the plaintiff’s legal
challenge to his conviction for violating a provision of the DOC’s
Code of Penal Discipline because the plaintiff filed his case nearly
two years after the conviction became final).
¶ 21 But the Colorado appellate courts have not previously decided
the issue presented in this appeal — whether C.R.C.P. 6(a)(1)’s time
calculation language applies to C.R.C.P. 106(b)’s twenty-eight-day
deadline. We conclude that C.R.C.P. 6(a)(1) applies to the
calculation of C.R.C.P. 106(b)’s twenty-eight-day deadline and,
therefore, hold that Rigato’s action was timely filed and the district
court erred by dismissing the case.
7 C. The District Court Had Subject Matter Jurisdiction Over Rigato’s Case
1. The Court’s Initial Rejection of Rigato’s Complaint Does Not Affect the Filing Date
¶ 22 We must initially determine whether Rigato filed his complaint
on May 28 or on June 10, when he refiled it after the court rejected
his original submissions.
¶ 23 We conclude that the filing date was May 28 because, together
with his original complaint, Rigato filed a motion “to file without
prepayment of filing fee/service fee.” The court apparently rejected
Rigato’s May 28 submissions because he did not use an official
court form to request permission to file them without prepayment of
fees. (The filing dates noted in this opinion are the dates Rigato
placed his documents in the facility’s legal mail. The inmate filing
and service rule says that “a pleading or paper filed or served by an
inmate confined to an institution is timely filed or served if
deposited in the institution’s internal mailing system on or before
the last day for filing or serving.” C.R.C.P. 5(f).)
¶ 24 In Fraser v. Colorado Board of Parole, 931 P.2d 560, 564 (Colo.
App. 1996), superseded by rule as stated in, Wallin, 210 P.3d at
480, a division of this court held that, to determine the filing date of
8 an inmate’s case challenging a disciplinary conviction when the
district court rejected the inmate’s original complaint and motion to
proceed in forma pauperis, we look to the date on which the inmate
filed his original complaint and motion, so long as the inmate
promptly submitted an amended in forma pauperis motion and the
court granted it. See id. (“Under these circumstances in which
plaintiff acted promptly to submit his amended [in forma pauperis]
motion, we hold that the granting of the amended motion should
relate back to the filing of the original [in forma pauperis]
motion . . . .”); see also Moore v. Grossman, 824 P.2d 7, 9 (Colo.
App. 1991) (explaining that courts should “reject the approach that
‘pleading is a game of skill in which one misstep . . . may be
decisive to the outcome’” (quoting Conley v. Gibson, 355 U.S. 41, 48
(1957))).
¶ 25 As noted above, Rigato submitted a motion to proceed without
prepaying fees on May 28 together with his original filings, and he
promptly filed a second fee motion, using an approved court form,
after the court rejected his original filings. Thus, Rigato is deemed
to have commenced this case on May 28 — the date he filed his
original complaint.
9 2. Rigato’s Complaint Was Timely Because C.R.C.P. 6(a)(1) Applied to His Action
¶ 26 The district court had jurisdiction over Rigato’s case if he
timely filed his C.R.C.P. 106.5 action. Rigato contends that the
filing deadline was Tuesday, May 28 — the first business day
following Memorial Day — and that his complaint was timely
because he placed it in the facility’s mailing system on that date.
We agree.
¶ 27 C.R.C.P. 6(a)(1)’s computation rule specifies how days are
counted for calculating time periods under the Rules of Civil
Procedure. See C.R.C.P. 6(a) (stating that the rule applies “[i]n
computing any period of time prescribed or allowed by these rules”
(emphasis added)); see also Bartlik v. U.S. Dep’t of Lab., 62 F.3d
163, 166 (6th Cir. 1995) (holding that Fed. R. Civ. P. 6(a) does not
expand or enlarge the court’s jurisdiction because it does “nothing
more than provide the court and the parties with a means of
determining the beginning and end” of a prescribed time period);
Fed. R. Civ. P. 6 advisory committee’s note to 2009 amendment
(“The time-computation provisions of subdivision (a) apply only
when a time period must be computed. They do not apply when a
10 fixed time to act is set.”). (Because the Colorado Rules of Civil
Procedure are patterned on the Federal Rules of Civil Procedure,
“we may also look to the federal rules and decisions for guidance.”
See Garrigan v. Bowen, 243 P.3d 231, 235 (Colo. 2010).)
¶ 28 Because the plain language of C.R.C.P. 6(a)(1) applies to any
period of time prescribed or allowed under the Rules of Civil
Procedure, the twenty-eight-day deadline in C.R.C.P. 106(b) is
subject to C.R.C.P. 6(a)(1). See Stamp v. Vail Corp., 172 P.3d 437,
447 (Colo. 2007) (“When used as an adjective in a statute, the word
‘any’ means ‘all.’” (quoting Winslow v. Morgan Cnty. Comm’rs, 697
P.2d 1141, 1141 (Colo. App. 1985))).
¶ 29 But the People argue that, under the supreme court’s
reasoning in Brown, C.R.C.P. 6(a)(1) does not apply to C.R.C.P.
106(b). In Brown, the supreme court held that courts may not
apply C.R.C.P. 6(b) to extend C.R.C.P. 106(b)’s twenty-eight-day
deadline. Brown, ¶ 50, 521 P.3d at 1025. C.R.C.P. 6(b) provides, in
relevant part,
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 court for cause shown may, at any time in its discretion (1) with or without
11 motion or notice, order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect . . . .
¶ 30 The petitioner in Brown filed a C.R.C.P. 106(a)(4) complaint to
challenge the decision of a City of Aurora officer. See Brown, ¶ 1,
521 P.3d at 1016. He filed the complaint after the twenty-eight-day
deadline specified in C.R.C.P. 106(b), however, allegedly due to
excusable neglect. See id. at ¶¶ 2-3, 521 P.3d at 1016. The
petitioner asserted that C.R.C.P. 6(b) allows courts to extend filing
deadlines in civil cases governed by C.R.C.P. 106(b) upon a showing
of excusable neglect. See id. The supreme court disagreed because
“the language, history, and purpose of [C.R.C.P.] 6(b) and
[C.R.C.P.] 106 and the case law interpreting these rules,” id. at
¶ 17, 521 P.3d at 1018, show that “[C.R.C.P.] 6(b) does not apply to
extend [C.R.C.P.] 106(b)’s twenty-eight-day filing deadline,” id. at
¶ 4, 521 P.3d at 1016.
¶ 31 The Brown court stressed the public policy grounds for the
strict application of Rule 106(b)’s deadline. “[T]he strict
12 enforcement of [C.R.C.P] 106(b)’s twenty-eight-day filing deadline
‘promote[s] government efficiency and sound municipal planning.’”
Id. at ¶ 43, 521 P.3d 1023 (quoting Bd. of Cnty. Comm’rs v.
Sundheim, 926 P.2d 545, 549 (Colo. 1996)). The court added that
“the short deadline for filing [C.R.C.P.] 106(a)(4) actions supports
our intent to ‘balance a citizen’s right to have [their] case heard
against the need for efficient [governmental] planning.’” Id. at ¶ 43,
521 P.3d at 1024 (quoting Sundheim, 926 P.2d at 550).
¶ 32 The court reasoned that “[t]his approach — treating
[C.R.C.P.] 106(b)’s deadline as strict and jurisdictional to balance
the rights of aggrieved citizens with legitimate government interests
in finality — also aligns with the uniform strictness with which the
General Assembly and our courts have treated other types of
untimely challenges of governmental actions,” including Colorado
Governmental Immunity Act (CGIA) actions. Id. at ¶ 44, 521 P.3d
1024. The General Assembly made the CGIA’s 182-day limitation a
“jurisdictional prerequisite rather than an affirmative defense . . .
[to] provide certainty.” Id. (quoting Reg’l Transp. Dist. v. Lopez, 916
P.2d 1187, 1193 (Colo. 1996)).
13 ¶ 33 The Brown court noted that a C.R.C.P. 106(a)(4) action is
“special among the Colorado Rules of Civil Procedure — hearkening
back to its predecessors, the special writs — in that it constitutes a
self-contained process.” Id. at ¶ 32, 521 P.3d at 1021. Accordingly,
the court held that the limitation period for C.R.C.P. 106(a)(4)
actions “prohibits the initiation of litigation after the prescribed
date,” is “jurisdictional in effect,” and is therefore not subject to
C.R.C.P. 6(b). Id. at ¶ 36, 521 P.3d at 1022 (emphasis added)
(quoting UMB Bank, ¶ 28, 408 P.3d at 841).
¶ 34 Despite the sweeping language in Brown, that case does not
compel a conclusion that courts must ignore C.R.C.P. 6(a)(1)’s
computation rule when determining the timeliness of an action
subject to C.R.C.P. 106(b)’s deadline. Critically, unlike C.R.C.P.
6(b), C.R.C.P. 6(a)(1) is not an extension of time rule.
¶ 35 C.R.C.P. 6(a)(1), titled “Computation,” explains how litigants
and courts must calculate “any period of time prescribed or allowed
by” the Rules of Civil Procedure; it does not refer to extensions of
time. C.R.C.P. 6(a)(1) specifies when the computation of a time
period begins, that weekends and holidays are included in the
count, and how to determine the period’s end.
14 ¶ 36 The different purposes of C.R.C.P. 6(a)(1) and 6(b) support our
conclusion that Brown’s reasoning does not apply to our analysis of
whether C.R.C.P. 6(a)(1) determines the deadline date in cases
subject to C.R.C.P. 106(b)’s twenty-eight-day deadline. This
difference between the rules is important because Rigato did not
seek an extension of that deadline.
¶ 37 The application of C.R.C.P. 6(a)(1) to calculate
C.R.C.P. 106(b)’s deadline comports with the supreme court’s
direction that courts construe the Colorado Rules of Civil Procedure
“liberally to effectuate their objective to secure the just, speedy, and
inexpensive determination of every case and their truth-seeking
purpose.” Antero Res. Corp. v. Strudley, 2015 CO 26, ¶ 15, 347
P.3d 149, 154 (quoting DCP Midstream, LP v. Anadarko Petroleum
Corp., 2013 CO 36, ¶ 24, 303 P.3d 1187, 1193).
¶ 38 Further, looking to C.R.C.P. 6(a)(1) to determine when C.R.C.P.
106(b)’s deadline runs is consistent with Matthews v. City & County
of Denver, 20 P.3d 1227, 1229 (Colo. App. 2000), in which the
division held that a notice of claim filed under the CGIA was timely
because the deadline fell on a legal holiday and the plaintiff filed the
notice the next business day.
15 ¶ 39 In that case, the division analyzed whether the state’s general
time computation statute, section 2-4-108, C.R.S. 2025, informs
the determination of the timeliness of claims filed under section
24-10-109(1), C.R.S. 2025 — the CGIA “non-claim statute.”
Matthews, 20 P.3d at 1228 (Section 24-10-109(1) “has been
characterized as a ‘non-claim’ statute which divests courts of
subject matter jurisdiction when a notice of claim is not filed within
specified time limits.”). Section 24-10-109(1) specifies that “[a]ny
person claiming to have suffered an injury by a public entity or by
an employee thereof while in the course of such employment . . .
shall file a written notice . . . within one hundred eighty-two days
after the date of the discovery of the injury” and that “[c]ompliance
with the provisions of this section shall be a jurisdictional
prerequisite to any action brought under the provisions of this
article, and failure of compliance shall forever bar any such
action.” Section 2-4-108(2) says that, “[i]f the last day of any period
is a Saturday, Sunday, or legal holiday, the period is extended to
include the next day which is not a Saturday, Sunday, or legal
holiday.”
16 ¶ 40 The Matthews division held that section 2-4-108(2) governs
the calculation of the deadline for filing a CGIA notice of claim when
the 180th day falls on a Saturday, Sunday, or legal holiday. See
Matthews, 20 P.3d at 1228-29. (In 2012, the General Assembly
changed section 24-10-109(1)’s deadline to 182 days. See Ch. 208,
sec. 145, § 24-10-109(1), 2012 Colo. Sess. Laws 881.) Significantly,
the division said that section 2-4-108 (as well as the similar section
24-11-110, C.R.S. 2025) does not result “in a tolling, waiver, or
extension of the 180-day requirement. Rather, these statutes
merely allow the 180-day period to be given effect and, as noted by
the trial court, provide a uniform method for determining when a
statutory period begins and ends.” Matthews, 20 P.3d at 1229.
Because C.R.C.P. 6(a)(1) serves a similar function to section
2-4-108, Matthews supports our determination that, in contrast to
C.R.C.P. 6(b), the former does not provide for “tolling, waiver, or
extension” of deadlines. Id.
¶ 41 In addition, with one minor exception, our decision can be
harmonized with Gomez v. Walker, 2023 COA 79, 540 P.3d 936, in
which the division considered whether the three-year deadline for
filing certain tort actions in section 13-80-101(1), C.R.S. 2025, is
17 deemed to be the next business day if the deadline falls on a
Saturday. Gomez, ¶ 6, 540 P.3d at 939. The third anniversary of
the plaintiff’s car crash fell on a Saturday. See id. at ¶ 3, 540 P.3d
at 939. The plaintiff filed her lawsuit on the Monday immediately
following that Saturday, arguing that she was entitled to the
additional days under section 2-4-108(2). See id. at ¶¶ 3, 6, 540
P.3d at 939.
¶ 42 The plaintiff’s lawsuit in Gomez would have been timely if
section 2-4-108(2) applied to her case. See id. at ¶ 3, 540 P.3d at
939. But the division held that section 2-4-108(2) could not extend
the statute of limitations embodied in section 13-80-101(1) and,
therefore, that the plaintiff’s last day to file had been the Friday
before the accident’s third anniversary. See id. at ¶ 6, 540 P.3d at
939.
¶ 43 Gomez rests on a phrase contained in section 13-80-101(1)
but not found in C.R.C.P. 106(b) — “and not thereafter.” Tort
actions subject to section 13-80-101(1) must be brought “within
three years after the cause of action accrues, and not thereafter.”
(Emphasis added.)
18 ¶ 44 In Gomez, the division noted that it was required to give
meaning to “and not thereafter” under canons of statutory
construction and that “applying section 2-4-108(2) to extend the
three-year anniversary date either renders the phrase ‘and not
thereafter’ redundant to the phrase ‘within three years’ or reads
‘and not thereafter’ out of the statute entirely.” Gomez, ¶ 15, 540
P.3d at 941. Thus, the division held that the phrase means that
“the action cannot be filed after the three-year anniversary of the
date the cause of action accrued.” Id.
¶ 45 The reasoning of Gomez does not apply here because C.R.C.P.
6(a)(1) is not an extension of time rule and C.R.C.P. 106(b) does not
say that actions subject to C.R.C.P. 106(b) must be filed within
twenty-eight days and not thereafter. (For the reasons explained
above, we respectfully disagree with Gomez’s assertion that C.R.C.P.
6(a)(1) “provides for the extension of a time period when the period
ends on a Saturday, Sunday, or legal holiday.” Id. at ¶ 4, 540 P.3d
at 939 (emphasis added).)
¶ 46 In conclusion, we hold that the computation provisions of
C.R.C.P. 6(a)(1) apply when determining the timeliness of a
complaint subject to C.R.C.P. 106(b)’s twenty-eight-day deadline.
19 C.R.C.P. 6(a)(1) tells us that, for purposes of calculating Rigato’s
deadline to file his C.R.C.P. 106.5 action, the twenty-eighth day
following the administrative head’s order upholding Rigato’s
disciplinary convictions was May 28. Because Rigato filed his
complaint on that date, the district court erred by dismissing his
case for lack of subject matter jurisdiction.
III. Disposition
¶ 47 The judgment is reversed and the case is remanded to the
district court for further proceedings consistent with this opinion.
JUDGE TOW and JUDGE BERNARD concur.