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Walker Commercial, Inc. v. Brown.

2021 COA 60. No. 20CA0205.  CRCP 106(a)(4)—Subject Matter Jurisdiction—Time Limitations—CRCP 106(b)—Excusable Neglect.

April 29, 2021


Plaintiff filed a complaint for review of a fee imposed by the City of Aurora. The district court dismissed the complaint for lack of subject matter jurisdiction because the complaint was filed two days after the jurisdictional deadline in CRCP 106(b). Plaintiff asked the district court to accept the untimely complaint under CRCP 6(b)(2), but its request was denied.

On appeal, plaintiff argued that its Rule 106(a)(4) action was timely filed because the Rule 106(b) 28-day deadline applies only where a statute authorizes judicial review of agency action, not where, as here, a municipal code provision provides another deadline. And if Rule 106(b) applies, it violates plaintiff’s due process rights. However, Rule 106(b) 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 28 days. Further, an ordinance is not a statute and cannot provide an alternative deadline to commence a Rule 106(a)(4) action. Therefore, the Rule 106(b) deadline applies to plaintiff’s Rule 106(a)(4) complaint. Moreover, holding plaintiff to that deadline under the circumstances of this case does not violate its right to due process.

Plaintiff also argued that the district court erred by concluding that Rule 6(b)(2) does not allow it to accept a Rule 106(a)(4) complaint beyond the deadline. The Court of Appeals decided, as an issue of first impression, that Rule 6(b)(2) authorizes a court to accept a Rule 106(a)(4) complaint filed past the Rule 106(b) deadline upon a showing of excusable neglect. Further, the standard for evaluating excusable neglect under Rule 6(b)(2) parallels the standard under Rule 60(b) and requires a balancing of the equities. Here, the district court did not consider all pertinent factors when evaluating plaintiff’s Rule 6(b)(2) motion.

The orders dismissing the amended complaint and denying the Rule 6(b)(2) motion were reversed and the case was remanded for reconsideration of the Rule 6(b)(2) motion and further proceedings as necessary.

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

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