Karl v. Dept of Safety ( 2024 )

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<div>23CA2203 Karl v Dept of Safety 10-10-2024 </div>
<div> </div>
<div>COLORADO COURT OF APPEALS </div>
<div> </div>
<div> </div>
<div>Court of Appeals No. 23CA2203 </div>
<div>City and County of Denver District Court No. 23CV30672 </div>
<div>Honorable Martin F. Egelhoff, Judge </div>
<div> </div>
<div> </div>
<div>Charles Karl, </div>
<div> </div>
<div>Plaintiff-Appellant, </div>
<div> </div>
<div>v. </div>
<div> </div>
<div>Department of Safety, </div>
<div> </div>
<div>Defendant-Appellee. </div>
<div> </div>
<div> </div>
<div>ORDERS AFFIRMED </div>
<div> </div>
<div>Division VII </div>
<div>Opinion by JUDGE SCHUTZ </div>
<div>T<span>ow</span><span> and Pawar, JJ., concur </span>
</div>
<div> </div>
<div>NOT PUBLISHED PURSUANT TO C.A.R. 35(e) </div>
<div>Announced October 10, 2024 </div>
<div> </div>
<div> </div>
<div>Empower P.C., <span>Christopher M.A. Lujan, Aurora, Colorado, for Plaintiff-</span>
</div>
<div>Appellant </div>
<div> </div>
<div>Kerry C. Tipper, City Attorney, <span>Charles T. Mitchell, Assistant City Attorney, </span>
</div>
<div>Margaret C. Tharp, Assistant City Attorney, Denver, Colorado, for Defendant-</div>
<div>Appellee </div>
<div> </div>
</div></div>
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<div>1 </div>
<div>¶ 1<span> </span><span>Plaintiff, Charles Karl, <span>appeals the district court’s order</span>s </span>
</div>
<div>denying his motion to certify the record and affirming the decision </div>
<div>and final order entered by defendant, the Civil Service Commissi<span></span>on </div>
<div>of the City and County of Denver (Commission). We affirm. </div>
<div>I.<span> <span>Background </span></span>
</div>
<div>¶ 2<span> </span><span>Karl was a captain with the Denver Fire Department. In </span>
</div>
<div>September 2021, the Department of Safety demoted him from the </div>
<div>rank of captain to the rank of firefighter based on two personnel </div>
<div>incidents that occurred in the spring of 2021. Karl appealed the </div>
<div>demotion. An administrate law judge held an evidentiary hearing <span></span>in </div>
<div>December 2021. The hearing officer issued a decision upholding </div>
<div>the demotion in January 2022. <span>Karl appealed the hearing officer’s </span>
</div>
<div>decision to the Commission on January 18, 2022. </div>
<div>¶ 3<span> </span><span>After more than 200 days passed without a decision, Karl filed </span>
</div>
<div>a <span>petition in Denver District Court Case No. 23CV30675, seeking <span></span>an </span>
</div>
<div>order compelling the Commission to issue a decision<span>. </span>Eleven days </div>
<div>later, which was 238 days after the briefing period had ended, <span></span>the </div>
<div>Commission issued its final decision and order affirming t<span></span>he </div>
<div>hearing officer’s decision<span>. </span>
</div>
</div></div>
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<div>2 </div>
<div>¶ 4<span> </span><span>Karl then filed the present case in the district court under </span>
</div>
<div>C.R.C.P. 106(a)(4) seeking judicial review and reversal of <span></span>the </div>
<div>Commission’s decision. He argued that the <span>Commission abused it<span></span>s </span>
</div>
<div>discretion in two ways: (1) by misapplying the applicable provi<span></span>sions </div>
<div>of the Denver Fire Department Discipline Handbook; and (2) by </div>
<div>failing to issue a decision <span>by</span> the deadline specified in Denver Civil </div>
<div>Service Commission Rule 12, section 11(K)(3), which states the </div>
<div>Commission has eighty-four days to issue a decision. </div>
<div>¶ 5<span> </span><span>Rule 106(a)(4)(III) <span>provides that “[i]</span>f the complaint is </span>
</div>
<div>accompanied by a motion and proposed order requiring <span></span>certification </div>
<div>of a record, the court shall order the defendant body <span></span>or officer to file </div>
<div>with the clerk on a specified date, the record or such portion <span></span>or </div>
<div>transcript thereof as is identified in the order<span>.” Karl did not file </span>
</div>
<div>such a motion with the complaint, or his subsequently f<span></span>iled </div>
<div>amended complaint<span>. </span><span>Rule 106(a)(4)(VII) continues: “If no record is </span>
</div>
<div>requested by the plaintiff, the plaintiff shall file an opening brief </div>
<div>within 42 days after the defendant has served its answer up<span></span>on the </div>
<div>plaintiff.” Thus, Karl’s opening brief was due within <span>forty-two days </span>
</div>
<div>after the Commission served its answer to the amended complaint<span>. </span>
</div>
<div>See <span>C.R.C.P. 106(a)(4)(VII). </span>
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<div>3 </div>
<div>¶ 6<span> <span>Nearly a month after Karl’s deadline for filing his openin<span></span>g brief, </span></span>
</div>
<div>the district court’s judicial assistant emailed Karl’s counsel to </div>
<div>inquire about the status of the case. Karl’s counsel responded t<span></span>hat </div>
<div>“<span>this matter is ready for a briefing schedule to be issued,<span>” and</span> </span>
</div>
<div>“<span>[t]here is no motion for certification of the record pending <span></span>in this </span>
</div>
<div>case.<span>” The same day, the district court entered an order sett<span></span>ing <span>a </span></span>
</div>
<div>briefing schedule for the Rule 106 claims. </div>
<div>¶ 7<span> </span><span>A month later, and approximately a week before the opening </span>
</div>
<div>brief was due, Karl filed a motion to certify the record. In his reply </div>
<div>to the Commission’s response to his motion to certify t<span></span>he record<span>, </span>
</div>
<div>Karl’s attorney <span>stated that he did not file the motion earlier becau<span></span>se </span>
</div>
<div>he was trying to save his client the expense of certifying t<span></span>he record </div>
<div>and that he had an expectation the <span>Commission’s </span>counsel would file </div>
<div>the certification.</div>
</div>
<div><div>1</div></div>
<div>
<div> The district court denied his motion, concluding </div>
<div>that <span>it</span> was untimely and that Karl had made no showing <span></span>of </div>
<div>excusable neglect to justify the late filing. </div>
<div> </div>
</div>
<div><div>1</div></div>
<div>
<div> On appeal, the <span>Commission’s </span>counsel <span>denies that Karl’s attorney </span>
</div>
<div>ever asked or confirmed whether the Commission would file the </div>
<div>certified record. </div>
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<div>4 </div>
<div>¶ 8<span> </span><span>After the briefing process, the district court entered an orde<span></span>r </span>
</div>
<div>concluding that the Commission did not lose its jurisdiction, excee<span></span>d </div>
<div>its authority, or abuse its discretion by issuing its final decision and </div>
<div>order more than eighty-four days after the briefing before the </div>
<div>Commission was completed. Karl appeals this order and the </div>
<div>district court’s order denying his motion to <span>certify the record. </span>
</div>
<div>II.<span> <span>Timeliness of the <span>Commission’s Order</span> </span></span>
</div>
<div>A.<span> <span>Standard of Review </span></span>
</div>
<div>¶ 9<span> </span><span>Under Rule 106(a)(4), we review a<span>n agency’s </span>quasi-judicial </span>
</div>
<div>decisions to determine if it <span>has “exceeded its jurisdiction or ab<span></span>used </span>
</div>
<div>its discretion.” <span>The agency decision that Karl challenges is the </span>
</div>
<div>issuance of <span>the Commission’s</span> final decision and order long after the </div>
<div>expiration of the deadline established by Rule 12, section 11(K)(<span></span>3). </div>
<div>The Commission’s interpretation and <span>application of that Rule </span>
</div>
<div>presents an issue of law that we review de novo.<span> See Colo. Dep<span>’</span>t<span></span> of </span>
</div>
<div>Lab. <span>&amp; </span>Emp. v. Esser<span>, 30 P.3d 189, 194 (Colo. 2001) <span>(“[C]</span>onclusions </span>
</div>
<div>of law, including interpretations of the constitutions and stat<span></span>utes, </div>
<div>are always subject to de novo review<span>.”</span><span>)</span><span>; </span><span>Safeway, Inc. v. Indus. </span>
</div>
<div>Claim Appeals Off.<span>, 186 P.3d 103, 105 (Colo. App. 2008) (“<span>I<span>n </span></span></span>
</div>
<div>construing an administrative rule or regulation, we ap<span></span>ply the same </div>
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<div>5 </div>
<div>rules of construction as we would in interpreting a statute.<span>”</span> </div>
<div>(quoting <span>Lucero v. Dep’t of <span>Insts.</span></span>, 942 P.2d 1246, 1249 (Colo. <span></span>App. </div>
<div>1996))). An agency abuses its discretion when it misapplies the </div>
<div>law. <span>Gallegos v. Garcia</span>, 155 P.3d 405, 406 (Colo. App. <span></span>2006). </div>
<div>B.<span> <span>The Parties’ Arguments<span> </span></span></span>
</div>
<div>¶ 10<span> </span><span>As best we understand his argument on appeal, Karl asserts </span>
</div>
<div>that under Rule 12, section 11(K)(3), the Commission either </div>
<div>exceeded its authority or abused its discretion by issuing its final </div>
<div>decision and order more than eighty-four days after the briefing was </div>
<div>complete<span>. <span>In its answer brief, the Commission frames K<span>arl’s </span></span></span>
</div>
<div>argument as a contention that the Commission lost its jurisdiction </div>
<div>to act.<span> </span>
</div>
<div>¶ 11<span> </span><span>Both in the district court and on appeal, the Commission cites </span>
</div>
<div>Shaball v. State Compensation Insurance Authorit<span></span>y<span>, 799 P.2d 399 </span>
</div>
<div>(Colo. App. 1990), as the analytical framework for its jurisdictional </div>
<div>analysis. In rejecting <span>Karl’s </span>challenge to the timeliness of the </div>
<div>Commission’s decision, t<span>he district court also viewed the Rule 12<span>, </span></span>
</div>
<div>section <span>11</span>(K)(3), timing issue as a question of jurisdict<span></span>ion and </div>
<div>analyzed it through the <span>Shaball</span> framework. </div>
</div></div>
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<div>6 </div>
<div>¶ 12<span> </span><span>In his reply brief on appeal<span>, </span>however, Karl expressly denies </span>
</div>
<div>that he is making a jurisdictional argument<span>. </span>Rather, he reiterates </div>
<div>that he is arguing that the Commission exceeded its authority and </div>
<div>abused its discretion by deciding the appeal after the eighty-four-</div>
<div>day deadline. </div>
<div>¶ 13<span> </span><span>As a remedy for the asserted violation of the deadline, Karl </span>
</div>
<div>requested that the district court reverse the Commission<span>’s</span> decision. </div>
<div>While less than clear, it seems he was also asking the court t<span></span>o </div>
<div>reverse or vacate the hearing officer’s decision and reinstate him <span></span>to </div>
<div>his former rank of captain. This argument <span>is</span> premised on the </div>
<div>contention that the factual record and disciplinary matri<span></span>x did not </div>
<div>support his demotion. </div>
<div>1.<span> <span>The Commission’s Jurisdiction<span> and Authority to Act </span></span></span>
</div>
<div>¶ 14<span> </span><span>Rule 12 addresses disqualification and disciplinary appeals, </span>
</div>
<div>hearings, and procedures. Section 11(K)(1) and (K)(3) of Rule 12 </div>
<div>provides as follows: </div>
<div>1.<span> The Commissioners shall issue a written </span>
</div>
<div>Decision and Final Order, that shall be binding </div>
<div>upon all parties, affirming, reversing, or </div>
<div>modifying the Hearing Officer<span>’</span>s Decision and </div>
<div>Order with respect to any charged violation </div>
<div>and any imposed penalty that is a subject of </div>
</div></div>
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<div>7 </div>
<div>the appeal. The Commissioners’ decision shall </div>
<div>be final and is subject to judicial review . . . . </div>
<div>. . . . </div>
<div>3. The Commissioners shall issue their </div>
<div>decision no later than eighty-four (84) days </div>
<div>after the close of Oral Argument or, if no Oral </div>
<div>Argument is held, after the close of the briefing </div>
<div>period. </div>
<div>¶ 15<span> </span><span>Despite the terms of Rule 12, section 11(K)(3), the Commissi<span></span>on </span>
</div>
<div>did not issue its decision and final order within eight<span></span>y-four days </div>
<div>after the close of the briefing period. </div>
<div>¶ 16<span> <span>Although we acknowledge Karl’s disclaimer, we elect<span></span> to </span></span>
</div>
<div>address the jurisdictional question for three reasons. <span></span>First, an </div>
<div>agency decision is void if it is entered without jurisdiction. <span></span> <span>Emmons </span>
</div>
<div>v. Colo. Dep<span>’</span>t of Revenue<span>, 2020 COA 17, ¶ 32 <span>(“</span>If we find that t<span></span>he </span>
</div>
<div>Department acted without jurisdiction, we must reverse t<span></span>he district </div>
<div>court judgment . . . .<span>”</span><span>).</span><span> </span>Second, an appellate court must be </div>
<div>satisfied that the reviewing agency had jurisdiction <span>to</span> resolve the </div>
<div>disputed issue. <span>Id<span>.</span></span> And third, the district court expressly resolved </div>
<div>the jurisdictional question after applying <span>Shaball</span>, which we agre<span></span>e </div>
<div>provides the most relevant authority for determining if <span></span>an agency </div>
<div>loses the ability to act because a decision was not timely issue<span></span>d. </div>
</div></div>
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<div>8 </div>
<div>¶ 17<span> <span>Shaball<span>, <span>like the present case, involved the appeal of a </span></span></span></span>
</div>
<div>disciplinary action. <span>See</span> 799 P.2d at 402. There, the plaintiff </div>
<div>argued that the administrative agency “lost jurisdiction <span></span>when the </div>
<div>hearing officer failed to issue a decision” within the timefra<span></span>me </div>
<div>specified by the applicable statute. <span>Id.</span><span> </span><span>In rejecting the plaintiff’s </span>
</div>
<div>jurisdictional argument, <span>the division held that “[s]</span>tatutory </div>
<div>provisions governing the time for actions to be taken by public </div>
<div>officials and agencies are not jurisdictional unless a contrary intent </div>
<div>is clearly expressed<span>.” <span>Id.<span> </span></span></span>The division explained, </div>
<div>The crucial difference between statutes </div>
<div>considered to be directory and those deemed </div>
<div>mandatory arises from the consequence of </div>
<div>noncompliance. Failure to follow the former </div>
<div>does not terminate the authority of the </div>
<div>administrative or judicial body to decide the </div>
<div>issue, whereas the failure to follow the latter </div>
<div>may terminate its power or jurisdiction. </div>
<div>¶ 18<span> <span>Id. </span></span>
</div>
<div>¶ 19<span> <span>Shaball<span> sets forth three factors for assessing whether a time </span></span></span>
</div>
<div>limit governing the issuance of an agency decision is directory </div>
<div>rather than mandatory.<span> </span><span>Id.</span><span> </span>The first is whether the rule indicates </div>
<div>that <span>“time is of the essence”</span> to issue a decision.<span> </span><span>Id.</span><span> </span>Aside from </div>
<div>articulating the timeframe, Rule 12, section 11(K)(3), contains no </div>
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<div>9 </div>
<div>indication that time is of the essence in meeting the eighty-four-day </div>
<div>deadline. </div>
<div>¶ 20<span> </span><span>The second <span>Shaball</span> factor is whether the governing statute </span>
</div>
<div>“contains negative language denying the exercise of authority </div>
<div>beyond the time period prescribed for action.” <span>799 P.2d at 402<span>. </span></span>
</div>
<div>Section 11(K)(3) of Rule 12 contains no language indicating that an </div>
<div>agency loses jurisdiction or its authority to act <span>if</span> its decision is not </div>
<div>issued within eighty-four days. </div>
<div>¶ 21<span> </span><span>The third <span>Shaball</span> factor requires us to consider whether </span>
</div>
<div>“disregarding the relevant provision would injuriously aff<span></span>ect public </div>
<div>interests or private rights.” <span>799 P.2d at 402. Certainly, Karl had a </span>
</div>
<div>personal interest in receiving a timely decision from the </div>
<div>Commission. And we appreciate his frustration with the </div>
<div>Commission’s significant delay in issuing the decision in t<span></span>his case. </div>
<div>The Commission<span>’s</span> decisions materially impact important aspects of </div>
<div>employees’ daily lives<span>: </span><span>Karl’s</span><span> employment status, salary, and </span>
</div>
<div>retirement benefits remained in limbo while the Commission </div>
<div>considered its decision. However, we find no indication that<span></span> Karl </div>
<div>suffered <span>a specific injury from the Commission’s delay t<span></span>hat could </span>
</div>
<div>not have been remedied if the Commission had found in his f<span></span>avor. </div>
</div></div>
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<div>10 </div>
<div>His title and retirement benefits could have been reinstated, and <span></span>he </div>
<div>could have received backpay. </div>
<div>¶ 22<span> </span><span>On a less tangible level, the uncertainty created by the delay<span></span>ed </span>
</div>
<div>decision likely impacted <span>Karl’s </span>work environment and his mental </div>
<div>state. But these tensions are inherent in the litigation of all </div>
<div>employment actions, and Karl has identified no concrete personal </div>
<div>loss that he suffered because of the delay. </div>
<div>¶ 23<span> </span><span>Finding none of the three <span>Shaball</span> factors satisfied in this c<span>as<span>e,</span></span> </span>
</div>
<div>we conclude that the Commission<span>’</span>s delay in issuing its decision di<span></span>d </div>
<div>not result in the loss of its jurisdiction or authority to act. </div>
<div>2.<span> <span>Abuse of Discretion </span></span>
</div>
<div>¶ 24<span> </span><span>Perhaps in view of <span>Shaball</span><span>, Karl’s focus </span><span>in</span> the district court </span>
</div>
<div>and on appeal is his argument that the Commission abused it<span></span>s </div>
<div>discretion by issuing its decision long after the eighty-four-day </div>
<div>deadline. An agency abuses its discretion when it misconstrues or </div>
<div>misapplies the law or when it makes a decision that is <span>un</span>support<span></span>ed </div>
<div>by competent evidence in the record such that the decision can only<span></span> </div>
<div>be explained as an arbitrary or capricious exercise of authority<span>. </span> </div>
<div>Freedom Colo. Info., Inc. v. El Paso Cnty. <span>Sheriff’s Dep’t.<span>, 196 <span></span>P.3d </span></span>
</div>
</div></div>
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<div><div>
<div>11 </div>
<div>892, 899-<span>900</span> (Colo. App. 2008) (citing <span>Ross v. Fire &amp; Police Pension </span>
</div>
<div>Ass’n<span>, 713 P.2d 1304, 1308-09 (Colo. 1986)). </span>
</div>
<div>¶ 25<span> </span><span>In rejecting this argument, the district court relied on a </span>
</div>
<div>decision from a division of this court in <span>Mayerle v. Civil Service </span>
</div>
<div>Commission<span>, 738 P.2d 1198 (Colo. App. 1987). In </span>Mayerle<span>, the </span>
</div>
<div>division rejected the plaintiff’s contention that the Commissi<span></span>on’s </div>
<div>five-month delay in issuing its opinion was arbitrary and </div>
<div>capricious. <span>Id.</span> at 1200 (<span>“</span><span>P</span><span>etitioner’s argument that the <span></span>Commission </span>
</div>
<div>acted arbitrarily and capriciously in rendering its decision f<span></span>ive </div>
<div>months after the hearing is without merit.<span>” </span>(citing <span>Clevela<span></span>nd Bd. of </span>
</div>
<div>Educ. v. Loudermill<span>,</span> <span>470 U.S. 532 (1985))); </span><span>Loudermill</span><span>, 470 U.S. at </span>
</div>
<div>547 (concluding that a ni<span>ne</span>-month delay in issuing a decision was </div>
<div>neither unreasonable n<span>or </span>unconstitutionally lengthy<span></span> per se). In </div>
<div>Karl’s case, <span>the <span>seven</span>-month delay falls squarely between <span></span>the five-</span>
</div>
<div>month delay in <span>Mayerle</span> and the nine-month delay in the case </div>
<div>Mayerle<span> cites, </span>Loudermill<span>. </span>
</div>
<div>¶ 26<span> </span><span>Karl <span>re</span>lies heavily on <span>Rags Over the Arkansas River, Inc. v. </span></span>
</div>
<div>Colorado Parks &amp; Wildlife Board<span>, 2015 COA 11M, to support his </span>
</div>
<div>argument that the Commission exceeded its authority by <span></span>not </div>
<div>adhering to the eighty-four-day deadline. In <span>Rags</span>, the Colorado </div>
</div></div>
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<div><div>
<div>12 </div>
<div>Parks and Outdoor Recreation Board delayed issuing a permit that </div>
<div>would have allowed the plaintiff to create an outdoor artistic f<span></span>eature </div>
<div>over the Arkansas River. <span>Id. </span>at ¶ 5<span>. </span>Thus, <span>Rags</span> involved an </div>
<div>agency’s failure to <span>follows its own rules governing the issuance of <span></span>a </span>
</div>
<div>special activities permit<span>. <span> </span></span><span>Id. </span>at ¶ <span>66<span>. </span></span>The division concluded that </div>
<div>the agency<span>’s</span> failure to follow its own regulations in the <span></span>permitting </div>
<div>process was error, but that any error was harmless. <span>Id.</span> at ¶ <span>64</span>.<span></span> </div>
<div>¶ 27<span> <span>Karl’s contention is that the Commission’s <span>failure to issue a </span></span></span>
</div>
<div>timely decision was an abuse of discretion<span>. </span>This is so, h<span>e </span><span>argues</span><span>, </span>
</div>
<div>because the language of Rule 12, section 11(K)(3), is mandatory </div>
<div>rather than directive. But <span>Rags</span> does not provide an analytic </div>
<div>framework for deciding when a deadline to issue a decision is </div>
<div>mandatory rather than directi<span>ve</span>. That framework is provided by </div>
<div>Shaball<span>. <span>799 P.2d at 402. And </span><span>for</span><span> the reasons previously </span></span>
</div>
<div>articulated, the application of <span>Shaball</span><span>’s three factors leads to </span>the </div>
<div>conclusion that <span>Rule 12’s</span> eighty-four-day deadline is directive </div>
<div>rather than mandatory. </div>
<div>¶ 28<span> </span><span>Karl relies on various nonbinding decisions from other </span>
</div>
<div>jurisdictions <span>to argue that the word “shall” in Rule 12, section </span>
</div>
<div>11(K)(3), imposes a mandatory deadline.<span> </span><span>See, e.g.</span><span>, </span><span>Moha<span>sco <span>Corp. </span>v. </span></span>
</div>
</div></div>
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<div><div>
<div>13 </div>
<div>Silver<span>, 447 U.S. 807, 825-26 (1980) (concluding that deadline f<span></span>or </span>
</div>
<div>filing unfair employment practices claim is mandatory)<span>; </span><span>In re Comp. </span>
</div>
<div>of Pena<span>, 432 P.3d 382, 386 (Or. Ct. App. 2018) (concluding that the </span>
</div>
<div>Worker’s Compensation Division misapplied its own rules<span> and </span>
</div>
<div>reversing decision that failed to follow the rule<span>).</span> </div>
<div>¶ 29<span> </span><span>But these decisions are based on statutes or rules not at issue </span>
</div>
<div>here. Moreover, Karl cites no analytic framework that displaces t<span></span>he </div>
<div>Shaball<span> factors in assessing whether an agency rule that </span>
</div>
<div>establishes a deadline for the issuance of a decision is mandat<span></span>ory or </div>
<div>directive. Similarly, he provides no framework by which we are to </div>
<div>determine when a delay in the issuance of a decision rises to the </div>
<div>level of arbitrary or capricious conduct. </div>
<div>¶ 30<span> </span><span>In the absence of such authority, we conclude that the </span>
</div>
<div>Commission did not act arbitrarily or capriciously by issuing <span></span>its </div>
<div>decision after the eighty-four-day deadline. </div>
<div>¶ 31<span> </span><span>But even if we assume there was error, such error would <span></span>not </span>
</div>
<div>justify either remedy that Karl requests. Karl effectively prop<span></span>oses </div>
<div>two remedies. First, he suggests that we should vacate the </div>
<div>Commission’s decision because of its untimeliness and vacate t<span></span>he </div>
<div>he<span>aring officer’s decision, reinstating his original position<span> <span>as </span></span></span>
</div>
</div></div>
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<div><div>
<div>14 </div>
<div>captain. Alternatively, he argues that we should reverse t<span></span>he district </div>
<div>court’s order denying his motion to certify the record and <span></span>remand </div>
<div>this matter with instructions that the district court review the </div>
<div>record and reconsider the merits of the Commission’s de<span></span>cision. The </div>
<div>first remedy is well outside our authority. The second would <span></span>only </div>
<div>be possible if we found the district court had erred in denyin<span></span>g Karl’s </div>
<div>motion to certify the record. But as explained below, we conclude </div>
<div>that the district court did not err by denying the motion to certify </div>
<div>the record. </div>
<div>III.<span> <span>Denial of the Motion to Certify Record </span></span>
</div>
<div>¶ 32<span> </span><span>Karl argues that the district court abused its discretion by </span>
</div>
<div>den<span>ying</span><span> his motion to certify the record<span>. </span>He asks that the case be </span>
</div>
<div>remanded to the district court with instructions to allow him to </div>
<div>submit a certified record, so the district court can evaluate the </div>
<div>merits of the Commission’s decision.<span> </span>
</div>
<div>A.<span> <span>Standard of Review </span></span>
</div>
<div>¶ 33<span> </span><span>We review the district <span>court’s </span>decision <span>whe</span>ther to grant a tardy </span>
</div>
<div>motion for an abuse of discretion. <span>See Brown v. Walker Com., I<span></span>nc.<span>, </span></span>
</div>
<div>2022 CO 57, ¶ <span>19</span>-20 (concluding that trial courts have br<span></span>oad </div>
<div>latitude to allow untimely filings under the provisions of Rule </div>
</div></div>
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<div><div>
<div>15 </div>
<div>6(b)(2)). <span>“</span>A trial court abuses its discretion when its decision is </div>
<div>manifestly arbitrary, unreasonable, unfair, or based on a </div>
<div>misapplication of the law.”<span> <span>Adams Cnty. Hous. Auth. v. Panzla<span></span>u<span>, </span></span></span>
</div>
<div>20<span>22 COA 148, ¶ 17 (quoting <span>Black v. Black</span>, 2020 CO 64M, <span></span>¶ 118). </span>
</div>
<div>B.<span> <span>Analysis </span></span>
</div>
<div>¶ 34<span> <span>The district court’s order denying Karl’s motion <span>adopted by </span></span></span>
</div>
<div>reference the arguments made in the Commission<span>’s </span>response to </div>
<div>Karl’s motion<span> to certify the record<span>. </span> <span>In</span> its response, the Commission </span>
</div>
<div>argued Karl failed to demonstrate <span>“good cause or excusable negl<span></span>ect” </span>
</div>
<div>for the delay in filing the motion. The Commission also noted that<span></span> </div>
<div>in response to the district court’s inquiry, Karl represented that </div>
<div>there was no request to certify the record and that the case was ripe </div>
<div>for setting the briefing schedule. </div>
<div>¶ 35<span> </span><span>In his reply <span>to the Commission’s response</span><span>, </span>Karl argued that he </span>
</div>
<div>didn’t timely file a motion <span>to certify because in a previous case </span>
</div>
<div>involving the same attorneys, defense counsel provided a certified </div>
<div>copy of the record even though <span>Karl’s counsel</span> had not filed a motion </div>
<div>to certify<span>. </span>Aside from this one alleged incident <span>—</span> the circumstances </div>
<div>of which are not documented or further explained <span>—</span> there is </div>
<div>nothing in the record to indicate an established relationshi<span></span>p or </div>
</div></div>
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<div><div>
<div>16 </div>
<div>practice between counsel that would justify Karl assuming that<span></span> </div>
<div>there was no need file a motion to certify in this case. </div>
<div>¶ 36<span> </span><span>On appeal, Karl offers the same justification for his belated </span>
</div>
<div>filing<span>: <span>in one prior Rule 106 case with defense counsel, the city </span></span>
</div>
<div>attorney had filed a record even though <span>Karl’s attorney had not filed </span>
</div>
<div>a <span>motion to certify<span>, </span>and he assumed the same practice would be </span>
</div>
<div>followed in this case. </div>
<div>¶ 37<span> <span>As an initial matter, we note that Karl’s counsel first raised </span></span>
</div>
<div>th<span>is<span> argument in his reply brief filed in the district court. Generally,<span></span> </span></span>
</div>
<div>we do not consider arguments raised for the first time in a reply </div>
<div>brief. <span>See Flagstaff Enters. Constr., Inc. v. Snow</span>, 908 P.2d 1<span></span>183, </div>
<div>1185 (Colo. App. 1995) (it is not error for a trial court not to </div>
<div>consider arguments raised for the first time in <span>a </span>reply brief).<span> </span>But </div>
<div>even if we assume the argument was adequately preserved, we </div>
<div>conclude it fails on the merits. </div>
<div>¶ 38<span> </span><span>Neither before the district court nor on appeal does Karl point </span>
</div>
<div>to an established practice between counsel, or an express </div>
<div>representation from opposing counsel, that would justif<span></span>y his </div>
<div>assumption that he could ignore the requirements of Rule </div>
<div>106(a)(4)(III) and (IV)<span>. </span>Moreover, a party is not free to disregard a </div>
</div></div>
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<div><div>
<div>17 </div>
<div>deadline absent permission of the tribunal, and there is nothin<span></span>g in </div>
<div>the record suggesting that the district court agreed to such <span></span>practice. </div>
<div>¶ 39<span> </span><span>In addition to these omissions, Karl affirmatively represented </span>
</div>
<div>to the district court that there was no motion to certify t<span></span>he record </div>
<div>outstanding and that the parties were ready for a briefing schedule. </div>
<div>Noting that “a certified record has not been requested,” t<span></span>h<span>e district </span>
</div>
<div>court entered its order setting forth the deadlines for the <span>parties’</span> </div>
<div>briefs on appeal. Even th<span>en</span>, Karl did not file his motion to certif<span></span>y </div>
<div>until more than a month later<span>, </span>seven days before his opening brief </div>
<div>was due.<span> </span>And in his reply brief concerning the motion to certify, </div>
<div>Karl stated <span>that the filing of his opening brief “probably rendere<span></span>d </span>
</div>
<div>moot” the issue of record certification because he “was able to f<span></span>ile </div>
<div>his brief without a certification of record.”<span> </span>
</div>
<div>¶ 40<span> </span><span>Karl lastly conten<span>ds</span> that his motion to certify should not <span></span>be </span>
</div>
<div>treated as untimely because C.R.C.P. 106(a)(4) does not<span></span> set forth an </div>
<div>express deadline for filing a motion to certify. Similarly, he </div>
<div>contends that any delay was inconsequential because he filed the </div>
<div>motion before the deadline for filing his opening brief. We <span></span>disagree. </div>
<div>¶ 41<span> </span><span>Rule 106(a)(4)(III) contemplates the filing of <span>a </span>motion to certify </span>
</div>
<div>contemporaneously with the complaint. If no record is req<span></span>uest<span>ed</span><span>, </span>
</div>
</div></div>
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<div><div>
<div>18 </div>
<div>an opening brief is due within forty-two days of the answer. </div>
<div>C.R.C.P. 106(a)(4)(VII). <span>Karl’s opening brief was </span>already </div>
<div>significantly past due before the court’s clerk contacted him <span></span>to </div>
<div>inquire about its status. And when he stated that no record was </div>
<div>requested, the court set a deadline for filing the opening brief.<span></span> After </div>
<div>another thirty-five days had expired, Karl filed the motion t<span></span>o certify </div>
<div>seven days before the deadline for his opening brief. If the motion </div>
<div>had been granted, it would have delayed the briefing until the </div>
<div>record could be prepared and filed. This would have required a new </div>
<div>briefing schedule and caused additional delay <span>in</span> resolving the case. </div>
<div>¶ 42<span> </span><span>Given these facts, we cannot conclude that the district court </span>
</div>
<div>abused its discretion <span>by denying Karl’s </span>untimely motion to certify </div>
<div>the record. </div>
<div>IV.<span> </span><span>Disposition </span>
</div>
<div>¶ 43<span> </span><span>The district court<span>’s order</span>s denying the motion to certify t<span></span>he </span>
</div>
<div>record and affirming <span>the Commission’s final decision and order a<span></span>re </span>
</div>
<div>affirmed. </div>
<div>JUDGE <span>TOW</span> and JUDGE PAWAR concur. </div>
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