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In the Matter of Estate of Ybarra.

2024 COA 3. No. 23CA0124. Colorado Rules for Magistrates—Authority to Consider a Petition for Rehearing—Civil Appeals—Time for Filing Notice of Appeal—Excusable Neglect—Unique Circumstances Doctrine.

January 4, 2024

A magistrate entered an order, with the required consent, removing Ybarra as the personal representative of his father’s estate and awarding his sister Connie Zamora damages against him for breach of fiduciary duty, conversion, and civil theft. Ybarra’s new attorney then sought and obtained an extension of time to determine whether post-trial relief was warranted. Within that extended deadline, the attorney moved for relief under CRCP 59, which the magistrate denied, citing her lack of authority to grant such relief. Ybarra’s attorney then filed a notice of appeal 110 days after the initial magistrate’s order, 66 days after the extended deadline for post-trial motions, and 26 days after the magistrate denied Ybarra’s Rule 59 motion.

On appeal, Ybarra argued that the magistrate’s order granting additional time to seek post-trial relief tolled his deadline for filing an appeal, so his appeal was only 17 days late, and the court of appeals should accept it due to excusable neglect. Alternatively, he argued that the appeal should be accepted under the unique circumstances doctrine. Colorado courts have held that a Rule 59 motion doesn’t toll the deadline to appeal a magistrate’s order entered where, as here, consent was necessary. Further, although Ybarra obtained an extension of time to file a post-trial motion, no post-trial motion that he could have filed would have tolled the deadline to appeal, because the only post-trial motion over which a magistrate has authority to rule is a CRCP 60(a) motion, which does not toll the appeal deadline. The court determined, following a recent amendment to C.A.R. 4(a), that obtaining an extension of time to file a post-trial motion does not toll the appeal deadline where no cognizable post-trial motion was filed. Accordingly, under C.R.M. 7(b), Ybarra had to file his appeal within the 49-day deadline in C.A.R. 4(a), and his Rule 59 motion didn’t toll that deadline. Thus, Ybarra’s appeal was filed 61 days late, beyond the maximum period allowed for excusable neglect. Further, unique circumstances don’t justify accepting the untimely appeal because no fundamental rights are at stake, and the magistrate’s orders were not erroneous or misleading.

The appeal was dismissed and the case was remanded for the district court to determine and award Zamora her reasonable appellate attorney fees and costs.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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