Opinion
June 25, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Brenman, Sobol & Baum, Martin Zerobnick, Denver, for plaintiff-appellant Franklin Contract Sales Co.
Doyle & Biesterfeld, M. D. Biersterfeld, Denver, for third-party defendant-appellee Mead and Mount Const. Co.
PIERCE, Judge.
Plaintiff, Franklin Contract Sales Company, filed a contract action against American Flooring Company. The latter then filed a third-party complaint against the appellee, Mead and Mount Construction Company. Although the third-party complaint was dismissed early in the proceedings, plaintiff filed an amended complaint alleging a cause of action in the nature of abuse of process against Mead and Mount. Plaintiff brings this appeal to challenge the trial court's determination that it had no claim for relief against Mead and Mount.
In addition to defending the action of the trial court on the merits, Mead and Mount have requested dismissal of this appeal on the ground that the appeal has not been timely perfected. We agree with this contention and dismiss the appeal.
The judgment of the trial court dismissing the plaintiff's cause of action against Mead and Mount was entered on May 4, 1973. Plaintiff filed a motion for new trial on May 16, 1973, two days late. Three months later plaintiff, discovering the late filing, attempted to correct the error by requesting an order extending the time for filing the motion for new trial, which motion was purportedly granted on August 29, 1973, Nunc pro tunc to May 14, 1973. In the interim, a notice of appeal had been filed on June 12, 1973.
C.R.C.P. 59(b) requires that a motion for new trial be filed not later than ten days after the entry of judgment. This requirement is mandatory, and failure to comply with the rule requires dismissal of the appeal. Austin v. College/University Insurance Co., 30 Colo.App. 502, 495 P.2d 1162. Furthermore, the time period specified by this rule may only be extended by the trial court where the request for such extension is made within the ten-day period. C.R.C.P. 6(b). Thus, the trial court was not free in August to extend the time for filing the motion for new trial, and the order of the court purporting to grant the extension Nunc pro tunc to May 14, 1973, was of no effect.
However, plaintiff argues that the judgment of the trial court falls within those judgments specified in C.R.C.P. 59(h) for which a motion for new trial need not be filed. Plaintiff argues that the dismissal of the cause of action against Mead and Mount was a summary judgment under C.R.C.P. 56. Thus, plaintiff contends that the untimeliness of the motion for new trial is irrelevant.
Even if this court were to accept plaintiff's argument that the motion for new trial was unnecessary, the appeal must still be dismissed. C.A.R. 4(a) requires that a notice of appeal be filed in the trial court within thirty days after entry of judgment. No request for extension of time for filing of notice of appeal as permitted under C.A.R. 4(a) was made in this case. Thus, plaintiff's notice of appeal, filed thirty-nine days after entry of judgment, was not timely and the appeal must be dismissed. Chapman v. Miller, 29 Colo.App. 8, 476 P.2d 763.
Although this case is not properly before us, we have considered the record, the briefs, and oral arguments presented by counsel, and we conclude that, if an opinion were written on the merits, the determination of the trial court would be affirmed.
The appeal is dismissed.
SMITH and RULAND, JJ., concur.