Matter of the Estate of Ramon Lopez Ybarra

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
January 4, 2024

2024COA3

No. 23CA0124, In the Matter of the Estate of Ybarra —
Colorado Rules for Magistrates — Magistrate has no Authority
to Consider a Petition for Rehearing; Colorado Rules of
Appellate Procedure — Appeals in Civil Cases — Time for filing
Notice of Appeal

As a matter of first impression, a division of the court of

appeals considers whether a motion seeking an extension of the

deadline to file post-trial motions, or an order granting such a

motion, tolls the deadline to file a notice of appeal under C.R.C.P.

59 and C.A.R. 4(a)(1) when no cognizable C.R.C.P. 59 motion is ever

filed. The division concludes that it does not.

Thus, the division concludes that the appeal was untimely and

was filed beyond the maximum period allowed for excusable neglect

under C.A.R. 4(a)(4). The division also concludes that unique

circumstances don’t justify accepting the untimely appeal. The
division accordingly dismisses the appeal for lack of jurisdiction.

The court also awards appellate attorney fees and costs to the

appellee.
COLORADO COURT OF APPEALS 2024COA3

Court of Appeals No. 23CA0124
Adams County District Court No. 20PR222
Honorable Sara Sheffield Price, Magistrate

In re the Matter of the Estate of Ramon Lopez Ybarra, a/k/a Ramon L. Ybarra,
a/k/a Ramon Ybarra, deceased.

Raymond Ybarra Jr.

Appellant,

v.

Connie DeLeon, n/k/a Connie Zamora,

Appellee.

APPEAL DISMISSED AND CASE REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE GOMEZ
Welling and Lipinsky, JJ., concur

Announced January 4, 2024

Solem Woodward & McKinley, P.C., Zachary F. Woodward, Englewood,
Colorado, for Appellant

The Moore Law Firm, P.C., Theresa M. Moore, Englewood, Colorado, for
Appellee
¶1 This case presents a novel issue concerning the timeliness of

an appeal — and once again demonstrates the “confusing appellate

labyrinth” that has plagued parties who seek to appeal rulings

entered by magistrates. In re Marriage of Stockman, 251 P.3d 541,

543 (Colo. App. 2010) (quoting In Interest of C.A.B.L., 221 P.3d 433,

443-44 (Colo. App. 2009) (Roy, J., specially concurring)). The

appellant in this case, Raymond Ybarra Jr., seeks to appeal a

magistrate’s order, entered with the required consent, removing him

as the personal representative of his father’s estate and awarding

the appellee, his sister Connie Zamora, damages against him for

breach of fiduciary duty, conversion, and civil theft.

¶2 After the magistrate entered her order, Ybarra’s new attorney

sought and obtained an extension of time to “review the [c]ourt

record and determine whether post-trial relief may be warranted.”

Within that extended deadline, the attorney filed a motion for relief

under C.R.C.P. 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. Based on a 49-day

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appeal deadline, see C.A.R. 4(a)(1), this means that, if the deadline

to appeal was based on the date of the magistrate’s initial order,

Ybarra’s appeal was 61 days late; if it was based on the extended

post-trial motion deadline, his appeal was 17 days late; and if it was

based on the date of the magistrate’s denial of his Rule 59 motion,

his appeal was timely.

¶3 Ybarra contends that the appeal deadline was based on the

extended post-trial motion deadline. Specifically, he argues that the

magistrate’s order granting additional time to seek post-trial relief

tolled his deadline for filing an appeal, making his appeal only 17

days late, and that we should accept it due to excusable neglect.

Alternatively, he argues that we should accept the appeal under the

unique circumstances doctrine.

¶4 We reject both arguments. Colorado courts have held that a

request for an extension of time to file a Rule 59 motion is not itself

a Rule 59 motion, see Campbell v. McGill, 810 P.2d 199, 200 (Colo.

1991), and that a Rule 59 motion doesn’t toll the deadline to appeal

a magistrate’s order entered where consent was necessary, see In re

Marriage of James, 2023 COA 51, ¶ 24. But no published Colorado

case has addressed whether obtaining an extension of time to file a

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post-trial motion tolls the appeal deadline where no cognizable post-

trial motion is filed, particularly following a recent amendment to

C.A.R. 4(a).1 We now hold that it does not. Thus, Ybarra’s appeal

was filed 61 days late — beyond the maximum period allowed for

excusable neglect. See C.A.R. 4(a)(4). We also conclude that

unique circumstances don’t justify accepting the appeal.

¶5 We therefore dismiss the appeal for lack of jurisdiction. We

also award Zamora her appellate attorney fees and costs, in an

amount to be determined by the district court on remand.

I. Background

¶6 This case stems from a dispute between Ybarra and Zamora

concerning their father’s estate. Ybarra opened the case by filing an

application through which he was appointed as the personal

representative of the estate. The court issued a notice informing

the parties that “this matter may be assigned to a district court

1 Until July 1, 2022, C.A.R. 4(a)(3) provided that the time to file an

appeal didn’t start to run until “expiration of a court granted
extension of time to file motion(s) for post-trial relief under C.R.C.P.
59, where no motion is filed.” Rule Change 2022(05), Colorado
Appellate Rules (Amended and Adopted by the Court En Banc, Feb.
24, 2022), https://perma.cc/6EQ9-625W. This provision doesn’t
apply to Ybarra because the order he seeks to appeal was entered a
few months after the amendment went into effect.

3
magistrate” and that “all parties must consent to any decisions

made in this matter being performed by a magistrate.” The notice

stated that, if an interested party didn’t object to the notice within

fourteen days, that party “will have consented to the magistrate.”

Neither party filed an objection.

¶7 A year later, Zamora filed a petition for removal of the personal

representative and for damages under sections 15-12-611(1) and

15-10-501(1), C.R.S. 2023, leading to the order Ybarra now seeks to

appeal. In that order, the magistrate found that Ybarra had

committed multiple breaches of his fiduciary duties by converting

estate assets for the benefit of himself and third parties; removed

him as personal representative; awarded damages to Zamora for

breach of fiduciary duty, conversion, and civil theft; and awarded

Zamora’s attorney fees and costs under sections 15-10-504(2)(a)

and 18-4-405, C.R.S. 2023. At the bottom of the order was an

advisement about the process for appealing a magistrate’s order:

Any order or judgment of a magistrate entered
in a proceeding in which consent is necessary
is issued with consent and any appeal must be
taken pursuant to C.R.M. 7(b). Any order or
judgment of a magistrate entered in a
proceeding in which consent is not necessary
must be appealed no later than fourteen days

4
subsequent to the final order or judgment if
the parties are present when the magistrate’s
order is entered, or twenty-one days from the
date the final order or judgment is mailed or
otherwise transmitted to the parties, pursuant
to C.R.M. 7(a) . . . .

II. Timeliness of the Appeal

¶8 We interpret court rules using the same principles we use to

interpret statutes. People in Interest of B.H., 2022 COA 9, ¶ 7.

Accordingly, we apply the plain and ordinary meanings of the words

in the rules, attempt to give effect to each word, and, where

possible, interpret each provision in the rules in harmony with the

rules’ overall design. Id.; James, ¶ 7.

¶9 The timely filing of a notice of appeal is generally a

jurisdictional prerequisite for appellate review. B.H., ¶ 8. The

procedure for appealing a magistrate’s order or judgment depends

on whether the parties had to consent to a magistrate adjudicating

the matter. James, ¶ 14. In probate cases, the parties’ consent is

required for a magistrate to hear and rule on any matters filed

pursuant to titles 15, 25, or 27 of the Colorado Revised Statutes.

C.R.M. 6(e)(2). If consent is required, the matter must be “appealed

pursuant to the Colorado Rules of Appellate Procedure in the same

5
manner as an order or judgment of a district court.” C.R.M. 7(b). If

consent isn’t required, the matter must first be reviewed by a

district court judge before this court can review it. C.R.M. 7(a).

¶ 10 Pursuant to the Colorado Appellate Rules, in civil cases, a

notice of appeal must be filed within forty-nine days after “entry of

the judgment, decree, or order being appealed.” C.A.R. 4(a)(1). But

under C.A.R. 4(a)(3), “[t]he running of the time for filing a notice of

appeal is terminated as to all parties when any party timely files a

motion in the lower court pursuant to C.R.C.P. 59.” The time to

appeal restarts when the Rule 59 motion is resolved — either when

it is ruled upon or when it is deemed denied after sixty-three days.

C.A.R. 4(a)(3); see also C.R.C.P. 59(j).

¶ 11 C.R.M. 5(a), however, prohibits magistrates from entertaining

Rule 59 motions, regardless of whether the underlying ruling did or

did not require consent. James, ¶ 19; In re Parental Responsibilities

Concerning M.B.-M., 252 P.3d 506, 510 (Colo. App. 2011). Due to

that prohibition, a division of this court recently held that the

tolling that ordinarily applies to a Rule 59 motion doesn’t apply

where such a motion relates to a magistrate’s order or judgment.

James, ¶ 24. The division therefore concluded that the appellant’s

6
filing of a Rule 59 motion with a magistrate concerning a matter for

which consent was required didn’t toll the appellant’s deadline to

file an appeal. Id. at ¶¶ 24, 26.

¶ 12 Ybarra doesn’t reargue the issue decided in James. In fact, he

acknowledges that his Rule 59 motion didn’t toll the appeal

deadline. He also acknowledges that the magistrate required

consent to decide the underlying issues (which Zamora had raised

under title 15) and that the parties gave the requisite consent. See

C.R.M. 6(e)(2)(A) (consent is necessary for a magistrate to “[h]ear

and rule upon all matters filed pursuant to C.R.S. Title 15”); C.R.M.

3(f)(1)(A)(ii) (parties are “deemed to have consented to a proceeding

before a magistrate” if they’re provided notice of the referral and

don’t file a written objection within fourteen days). Accordingly,

under C.R.M. 7(b), Ybarra had to file his appeal with this court

within the forty-nine-day deadline prescribed by C.A.R. 4(a), and his

Rule 59 motion didn’t toll that deadline.

¶ 13 Ybarra contends, however, that the magistrate’s order granting

an extension of time to file post-trial motions “ma[de] the finality of

the judgment at hand subject to those anticipated motions,” which

7
“could have destroyed the finality of the [order on appeal].” This, he

contends, tolled his deadline to appeal. We disagree.

¶ 14 Although Ybarra obtained an extension of time to file a post-

trial motion, there was no post-trial motion he could’ve filed that

would’ve tolled the deadline to appeal. The only post-trial motion

over which a magistrate has authority to rule — and, thus, the only

post-trial motion Ybarra could’ve properly filed — is a C.R.C.P. 60(a)

motion. See C.R.M. 5(a) (“Except for correction of clerical errors

pursuant to C.R.C.P. 60(a), a magistrate has no authority to

consider a petition for rehearing.”). But Rule 60(a) motions don’t

toll the appeal deadline. See C.A.R. 4(a)(3); In re Marriage of

Forsberg, 783 P.2d 283, 284 n.2 (Colo. 1989). And, as we’ve

explained, while Rule 59 motions generally toll the appeal deadline,

that tolling doesn’t apply in magistrate proceedings. James, ¶ 24.

We fail to see how an extension of time to seek post-trial relief could

toll the appeal deadline in a proceeding where the only available

post-trial relief doesn’t toll that deadline.

¶ 15 More generally, regardless of what post-trial relief was

available to Ybarra, a motion for an extension of time to file a post-

trial motion doesn’t, in and of itself, toll the appeal deadline. The

8
only motion listed in C.A.R. 4(a)(3) as tolling the appeal deadline is

a Rule 59 motion. Therefore, under the plain language of the rule,

the filing of any other motion — including a motion for an extension

of time to file a post-trial motion — doesn’t toll the deadline. Cf.

Forsberg, 783 P.2d at 284 n.2 (a Rule 60 motion doesn’t toll the

appeal deadline); Kindig v. Kindig, 536 P.2d 320, 322 (Colo. App.

1975) (not published pursuant to C.A.R. 35(f)) (stating, in applying

an earlier version of C.A.R. 4(a), which listed four specific motions

that extended the deadline for filing an appeal, that “[t]he filing of

any other motion does not so extend that time”).

¶ 16 To be sure, a court may extend the fourteen-day deadline to

file a Rule 59 motion, so long as a request for an extension is made

before that deadline expires. See C.R.C.P. 59(a). And, as Ybarra

points out, if a party doesn’t obtain an extension of time to seek

post-trial relief, a late-filed Rule 59 motion won’t toll the appeal

deadline. See Stone v. People, 895 P.2d 1154, 1156 (Colo. App.

1995). But that doesn’t mean that a motion for an extension of

time to seek post-trial relief filed during this fourteen-day period, or

an order granting such a motion, itself tolls the deadline to appeal.

This is because, under C.A.R. 4(a)(3), the deadline to appeal is tolled

9
only upon the “timely” filing of a Rule 59 motion. Thus, while an

extension may be necessary to ensure that a Rule 59 motion is

timely and will have a tolling effect, that doesn’t mean that the

extension itself has any impact on the appeal deadline when a

cognizable Rule 59 motion is never filed.

¶ 17 Moreover, as our supreme court’s decision in Campbell makes

clear, a motion for an extension of time to file a Rule 59 motion is

“not itself a [Rule] 59 motion.” 810 P.2d at 200. The court in

Campbell considered the operation of Rule 59(j), concluding that the

Rule 59 motion filed in that case could be deemed denied, at the

earliest, the requisite number of days after the effective filing of the

Rule 59 motion — not after the filing of a motion for an extension of

time to seek Rule 59 relief. Campbell, 810 P.2d at 200-01 (applying

an earlier version of C.R.C.P. 59(j), in which Rule 59 motions were

deemed denied after sixty days). Thus, the deemed-denied date and

the restarting of the appeal clock were based on when the Rule 59

motion was filed, not when the motion for an extension of time was

filed. See Campbell, 810 P.2d at 200-01.

¶ 18 If the Rule 59 motion dictates when the appeal clock restarts,

then it must also dictate when the appeal clock tolls. Any other

10
conclusion would be inconsistent with the plain language of C.A.R.

4(a)(3), which sets the filing and disposition of a Rule 59 motion as

the benchmarks for determining when the appeal timeline tolls and

restarts. Thus, neither Ybarra’s motion for an extension of time nor

the magistrate’s order granting it tolled the deadline to appeal.

Accordingly, the appeal deadline was based on the date of the

magistrate’s initial order, and the appeal was sixty-one days late.

III. Excusable Neglect

¶ 19 Having concluded that the appeal was sixty-one days late, we

needn’t consider the merits of Ybarra’s contention that excusable

neglect justifies his untimely appeal. This is because the notice of

appeal was filed after our authority to accept an appeal based on

excusable neglect had expired.

¶ 20 C.A.R. 4(a)(4) grants us authority to extend an appeal deadline

upon a showing of excusable neglect for up to thirty-five days. After

that date, we lack jurisdiction over an appeal regardless of whether

the appellant can show excusable neglect. Heotis v. Colo. Dep’t of

Educ., 2016 COA 6, ¶¶ 24-25; In re Marriage of Buck, 60 P.3d 788,

790 (Colo. App. 2002); see also C.A.R. 26(c)(1) (“[T]he court may not

extend the time to file . . . a notice of appeal beyond that prescribed

11
in C.A.R. 4(a) . . . .”). Thus, irrespective of whether Ybarra can

show excusable neglect, we lack jurisdiction over his appeal.

IV. Unique Circumstances

¶ 21 We now turn to Ybarra’s argument that unique circumstances

justify acceptance of his untimely appeal. We aren’t persuaded.2

¶ 22 The unique circumstances doctrine creates a “narrow

exception” to the procedural rules that limit our ability to grant

extensions, such as C.A.R. 4(a)(4). Converse v. Zinke, 635 P.2d 882,

886 (Colo. 1981). Because the doctrine applies only in “extreme

situation[s],” it’s often reserved for cases that involve fundamental

liberty interests, such as termination of parental rights. People in

Interest of A.J.H., 134 P.3d 528, 531 (Colo. App. 2006). And while

the doctrine is “rarely invoked,” it may apply if an appellant

reasonably relies and acts on an erroneous or misleading ruling

relating to appellate procedures or deadlines. Id.

2 At least one division of this court has held that the unique

circumstances doctrine cannot apply to cases that are filed past the
deadline for accepting an appeal under the excusable neglect
provision. See Heotis v. Colo. Dep’t of Educ., 2016 COA 6, ¶¶ 32-38.
We needn’t decide whether we agree because we conclude, at any
rate, that Ybarra hasn’t established unique circumstances.

12
¶ 23 For instance, in P.H. v. People in Interest of S.H., our supreme

court applied the unique circumstances doctrine to allow an

untimely appeal because the case “involv[ed] fundamental values”

concerning termination of parental rights and the late filing was a

“direct result of [the appellant’s] reliance on an erroneous trial court

ruling purporting to extend the [appeal] deadline,” which the trial

court lacked authority to do. 814 P.2d 909, 912 (Colo. 1991).

¶ 24 Here, however, no fundamental rights are at stake, and the

magistrate’s orders were not erroneous or misleading.

¶ 25 We reject Ybarra’s argument that the magistrate’s order

granting his request for an extension of time to seek post-trial relief

was erroneous or misleading. Unlike the trial court in P.H., the

magistrate had authority to grant the extension that Ybarra says

caused him to delay filing his appeal. See id. Ybarra’s attorney’s

generic request for an extension of time to “determine whether post-

trial relief may be warranted” included relief from clerical mistakes

under Rule 60(a), which the magistrate would’ve had authority to

adjudicate. See C.R.M. 5(a). Thus, when the magistrate granted

the extension, she wasn’t extending a deadline or authorizing a

motion over which she lacked authority. Nor did anything in her

13
order suggest that Ybarra could file, or that she could adjudicate, a

Rule 59 motion. And to the extent that Ybarra suggests that the

magistrate could’ve clarified the scope of her authority earlier by

highlighting it in her extension order or ruling sooner on his Rule

59 motion, it wasn’t the magistrate’s responsibility to clarify what

post-trial relief Ybarra intended to seek or to forewarn him that she

lacked authority over Rule 59 motions. See Chavez v. Chavez, 2020

COA 70, ¶ 37 (“[Courts] are not obligated to act as advocates or do

the work of counsel.”).

¶ 26 We also reject Ybarra’s argument that the initial order by the

magistrate was erroneous or misleading because it lacked a clear

advisement under C.R.M. 7(b). See C.R.M. 7(a), (b) (requiring that a

magistrate’s order or judgment include an advisement of the

applicable appeal process). The order included the relevant

language that “[a]ny order or judgment of a magistrate entered in a

proceeding in which consent is necessary is issued with consent

and any appeal must be taken pursuant to C.R.M. 7(b).” Of course,

it would’ve been clearer had the order provided only the C.R.M. 7(b)

advisement without adding the C.R.M. 7(a) advisement. But we

cannot say that the inclusion of the additional information was

14
erroneous or misleading, particularly given that Ybarra has never

indicated that his attorney was confused about which route of

appellate review applied in his case. Thus, this case is nothing like

C.A.B.L., where the appellant relied on erroneous advice from a

magistrate who told her that she could appeal by filing a petition for

review with the district court when, in actuality, the appeal needed

to be filed with this court. 221 P.3d at 440-41.

¶ 27 Indeed, divisions of this court have declined to apply the

unique circumstances doctrine in similar circumstances. For

example, the division in Heotis declined to apply the doctrine,

notwithstanding that the appellant had misunderstood the

applicable process for appealing a magistrate’s order issued where

consent was necessary and that the record didn’t indicate whether

the magistrate’s order had included the required advisement.

Heotis, ¶¶ 20-23, 27, 37. Among the reasons the division cited

supporting its decision were that the case didn’t involve a

fundamental liberty interest or an “extreme situation.” Id. at ¶¶ 39-

40, 42 (quoting A.J.H., 134 P.3d at 531).

¶ 28 Although we sympathize with Ybarra’s predicament in losing

his appeal rights because of his attorney’s apparent confusion

15
about the effect of his post-trial filings, we, like the division in

Heotis, conclude that the unique circumstances doctrine cannot be

extended to apply to the situation before us. We also reiterate the

Heotis division’s assessment that, “even if there is some confusion

in th[e] [magistrate] rules, the solution does not lie in contorting the

law of appellate jurisdiction to remedy it; the solution lies, instead,

in amending the rules.” Id. at ¶ 45.

¶ 29 We therefore decline to apply the unique circumstances

doctrine. Accordingly, we lack jurisdiction over this appeal.

V. Appellate Attorney Fees and Costs

¶ 30 Zamora requests an award of her appellate attorney fees and

costs under sections 15-10-504(2)(a) and 18-4-405 based on

Ybarra’s breach of fiduciary duty and civil theft. We agree that

these statutes entitle Zamora to an award of her reasonable

attorney fees and costs incurred in this appeal defending the

magistrate’s findings of breach of fiduciary duty and civil theft. See

§ 15-10-504(2)(a) (damages for breach of fiduciary duty may include

attorney fees and costs); § 18-4-405 (damages for civil theft may

include attorney fees and costs); Tisch v. Tisch, 2019 COA 41, ¶ 93

(awarding appellate attorney fees under section 18-4-405). See

16
generally Bailey v. Chamblee, 192 So. 3d 1078, 1083 (Miss. Ct. App.

2016) (an appellate court has jurisdiction to award appellate

attorney fees even if it lacks jurisdiction to review the judgment);

Morand v. Stoneburner, 516 So. 2d 270, 271 (Fla. Dist. Ct. App.

1987) (same).

¶ 31 Because we grant Zamora’s request under sections 15-10-

504(2)(a) and 18-4-405, we don’t consider her alternative request

for appellate attorney fees under C.A.R. 38.

¶ 32 We exercise our authority under C.A.R. 39.1 to remand the

case to the district court to determine a reasonable amount of

appellate attorney fees and costs to be awarded to Zamora.

VI. Disposition

¶ 33 The appeal is dismissed, and the case is remanded to the

district court to determine and award Zamora her reasonable

appellate attorney fees and costs.

JUDGE WELLING and JUDGE LIPINSKY concur.

17