2014 COA 148
Colo. Ct. App.2014Background
- J.A.A.U., biological father of M.K.D.A.L., petitioned for permanent guardianship under §15-14-304(1), C.R.S.2014.
- Petition alleged Respondent cannot communicate in English to satisfy essential health, safety, or self-care requirements even with technological assistance.
- Trial court denied the petition and held that English speaking is not a competency requirement, then stayed the order 14 days and certified that there is no current case law on this point to permit an appeal under C.A.R. 4.2.
- The stay was to allow an interlocutory appeal under rule 4.2, but the order included sua sponte certification rather than a motion under the rule.
- J.A.A.U. timely filed a petition for interlocutory appeal, but neither the petition nor supporting documents identified a motion or stipulation for certification.
- The court must determine whether a trial court may certify sua sponte under C.A.R. 4.2 and whether the petition to appeal is properly grounded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can a petition to appeal be based on sua sponte certification? | J.A.A.U. argues sua sponte certification allows appeal. | Court held sua sponte certification is not permitted by rule 4.2. | Not permitted; petition cannot be based on sua sponte certification. |
| Does C.A.R. 4.2(c) require a party to move for certification? | Certification must be initiated by a party under the rule. | The rule contemplates a party-led motion for certification. | Yes; requires a party's motion for certification. |
| Does expressio unius est exclusio alterius support implied trial-court sua sponte certification? | Policy should allow flexible certification by courts. | Expressio unius disfavors implying trial courts may certify sua sponte. | Disfavored; rule does not authorize sua sponte certification. |
| May a trial court initiate certification under 4.2(b) despite the lack of a motion? | Trial court might identify a controlling, unresolved question to warrant review. | Rule empowers court to grant or deny a motion for certification, not initiate. | No; the court cannot initiate certification. |
Key Cases Cited
- Willhite v. Rodriguez-Cera, 274 P.3d 1233 (Colo. 2012) (interpreting rule-like standards; informs mandatory nature of 'shall')
- Ruff v. Indus. Claim Appeals Office, 218 P.3d 1109 (Colo.App.2009) (statutory/regulatory interpretation principles apply to administrative rules)
- Turbyne v. People, 151 P.3d 563 (Colo.2007) (courts do not add or subtract statutory words)
- Shaw Constr., LLC v. United Builder Servs., Inc., 296 P.3d 145 (Colo.App.2012) (reinstatement of third-party claims increases settlement pressure)