A NEW Definition for Time — 3 Axioms

Definition for Time — 3 Axioms

The OSCC USA Causal-Mechanical Edifice

This is how OSCC USA represents Citizen’s who have identifying a jurisprudential system cycle with directivity or pattern.

A NEW Definition for Time — The OSCC USA Causal-Mechanical Edifice — 3 Axioms:

First Axiom:
Time possesses a quality, creating a difference in causes from effects, this is detectable to a Citizen by identifying a jurisprudential system cycle with directivity or pattern.  This property determines the difference in the past from the future.

Proceeding from those circumstances in which: 1) cause is always outside of the body in which the result is realized and 2) the result sets in after the cause.

Second Axiom:
Causes and results are always separated by space. Therefore, between them exists an arbitrarily small, but not equaling zero, spatial difference.

Third Axiom:
Causes and results are separated in time. Therefore, between their appearance there exists an arbitrarily small, but not equaling zero time difference of a fixed sign.

identifying a jurisprudential system cycle with directivity or pattern.




 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 







Simple Definition of time

  • : the thing that is measured as seconds, minutes, hours, days, years, etc.

  • : a particular minute or hour shown by a clock

  • : the time in a particular area or part of the world




Full Definition for Time:

1    a :  the measured or measurable period during which an action, process, or condition exists or continues :  durationb :  a nonspatial continuum that is measured in terms of events which succeed one another from past through present to futurec :  leisure <time for reading>

2    :  the point or period when something occurs :  occasion

3    a :  an appointed, fixed, or customary moment or hour for something to happen, begin, or end <arrived ahead of time>b :  an opportune or suitable moment <decided it was time to retire> —often used in the phrase about time <about time for a change>

4    a :  a historical period :  ageb :  a division of geologic chronologyc :  conditions at present or at some specified period —usually used in plural <times are hard> <move with the times>d :  the present time <issues of the time>

5    a :  lifetimeb :  a period of apprenticeshipc :  a term of military serviced :  a prison sentence

6    :  season <very hot for this time of year>

7    a :  rate of speed :  tempob :  the grouping of the beats of music :  rhythm

8    a :  a moment, hour, day, or year as indicated by a clock or calendar <what time is it>b :  any of various systems (as sidereal or solar) of reckoning time

9    a :  one of a series of recurring instances or repeated actions <you’ve been told many times>b plural (1) :  added or accumulated quantities or instances <five times greater> (2) :  equal fractional parts of which an indicated number equal a comparatively greater quantity <seven times smaller> <three times closer>c :  turn <three times at bat>

10    :  finite as contrasted with infinite duration

11    :  a person’s experience during a specified period or on a particular occasion <a good time> <a hard time>

12    a :  the hours or days required to be occupied by one’s work <make up time> <on company time>b :  an hourly pay rate <straight time>c :  wages paid at discharge or resignation <pick up your time and get out>

13    a :  the playing time of a gameb :  time-out 1

14    :  a period during which something is used or available for use <computer time>



Phrases for Time

at the same time
:  nevertheless, yet <slick and at the same time strangely unprofessional — Gerald Weaks>

at times
:  at intervals :  occasionally

for the time being
:  for the present

from time to time
:  once in a while :  occasionally

in no time
:  very quickly or soon

in time
1    :  sufficiently early
2    :  eventually
3    :  in correct tempo <learn to play in time>

on time
1    a :  at the appointed timeb :  on schedule
2    :  on the installment plan

time and again
:  frequently, repeatedly




Special Reactivity:

In physics, special relativity (SR, also known as the special theory of relativity or STR) is the generally accepted and experimentally well-confirmed physical theory regarding the relationship between space and time. In Albert Einstein‘s original pedagogical treatment, it is based on two postulates:

  1. The laws of physics are invariant (i.e. identical) in all inertial systems (non-accelerating frames of reference).
  2. The speed of light in a vacuum is the same for all observers, regardless of the motion of the light source.

It was originally proposed in 1905 by Albert Einstein in the paper “On the Electrodynamics of Moving Bodies“.[1] The inconsistency of Newtonian mechanics with Maxwell’s equations of electromagnetism and the lack of experimental confirmation for a hypothesized luminiferous aether led to the development of special relativity, which corrects mechanics to handle situations involving motions nearing the speed of light. As of today, special relativity is the most accurate model of motion at any speed. Even so, the Newtonian mechanics model is still useful (due to its simplicity and high accuracy) as an approximation at small velocities relative to the speed of light.

Special relativity implies a wide range of consequences, which have been experimentally verified,[2] including length contraction, time dilation, relativistic mass, mass–energy equivalence, a universal speed limit and relativity of simultaneity. It has replaced the conventional notion of an absolute universal time with the notion of a time that is dependent on reference frame and spatial position. Rather than an invariant time interval between two events, there is an invariant spacetime interval. Combined with other laws of physics, the two postulates of special relativity predict the equivalence of mass and energy, as expressed in the mass–energy equivalence formula E = mc2, where c is the speed of light in a vacuum.[3][4]

A defining feature of special relativity is the replacement of the Galilean transformations of Newtonian mechanics with the Lorentz transformations. Time and space cannot be defined separately from each other. Rather space and time are interwoven into a single continuum known as spacetime. Events that occur at the same time for one observer can occur at different times for another.

The theory is “special” in that it only applies in the special case where the curvature of spacetime due to gravity is negligible.[5][6] In order to include gravity, Einstein formulated general relativity in 1915. Special relativity, contrary to some outdated descriptions, is capable of handling accelerated frames of reference.[7][8]




Legal References for Time

Full Definition of Time

C.R.S. 1-1-106


COLORADO REVISED STATUTES

*** Titles 1 through 11, 13 to 17, 19 through 21, 23, 25 through 38, and 40 through 43 of the Colorado Statutes have been updated and are current through all laws passed during the 2016 Legislative Session, subject to final review by the Colorado Office of Legislative Legal Services. The remainder of the titles are current through all laws passed during the 2015 Legislative Session and are in the process of being updated. ***

TITLE 1. ELECTIONS  
GENERAL, PRIMARY, RECALL, AND CONGRESSIONAL VACANCY ELECTIONS  
ARTICLE 1.ELECTIONS GENERALLY  
PART 1. DEFINITIONS AND GENERAL PROVISIONS

C.R.S. 1-1-106 (2016)

1-1-106. Computation of time



(1) Calendar days shall be used in all computations of time made under the provisions of this code.

(2) In computing any period of days prescribed by this code, the day of the act or event from which the designated period of days begins to run shall not be included and the last day shall be included. Saturdays, Sundays, and legal holidays shall be included, except as provided in subsection (4) of this section.

(3) If a number of months is to be computed by counting the months from a particular day, the period shall end on the same numerical day in the concluding month as the day of the month from which the computation is begun; except that, if there are not that many days in the concluding month, the counting period shall end on the last day of the concluding month.

(4) If the last day for any act to be done or the last day of any period is a Saturday, Sunday, or legal holiday and completion of such act involves a filing or other action during business hours, the period is extended to include the next day which is not a Saturday, Sunday, or legal holiday.

(5) If the state constitution or a state statute requires doing an act in “not less than” or “no later than” or “at least” a certain number of days or “prior to” a certain number of days or a certain number of months “before” the date of an election, or any phrase that suggests a similar meaning, the period is shortened to and ends on the prior business day that is not a Saturday, Sunday, or legal holiday, except as provided in section 1-2-201 (3).

HISTORY: Source: L. 92: Entire article R&RE, p. 631, § 1, effective January 1, 1993.L. 93: (5) amended, p. 1395, § 3, effective July 1.L. 95: (2) and (5) amended, p. 820, § 2, effective July 1.L. 96: (5) amended, p. 1773, § 76, effective July 1.L. 99: (4) and (5) amended, p. 756, § 2, effective May 20.



Editor’s note: This section is similar to former § 1-1-105 as it existed prior to 1992.

Cross references: For computation of time under the statutes generally, see § 2-4-108.
 
ANNOTATION

This section shall be used in all computations of time made under the provisions of the elections statutes which relate to general, primary, and special (now congressional vacancy) elections. Ray v. Mickelson, 196 Colo. 325, 584 P.2d 1215 (1978) (decided under former law).

 

C.R.C.P. 6

 

COLORADO COURT RULES
Copyright (c) 2016 by Matthew Bender & Company Inc.
All rights reserved

*** This document reflects changes received through February 19, 2016 ***

COLORADO RULES OF CIVIL PROCEDURE  
CHAPTER 1 SCOPE OF RULES, ONE FORM OF ACTION, COMMENCEMENT OF ACTION, SERVICE OF PROCESS, PLEADINGS, MOTIONS AND ORDERS

C.R.C.P. 6 (2016)

Rule 6. Time.

(a) Computation.
 
(1) In computing any period of time prescribed or allowed by these rules, the day of the act, event, or default from which the designated period of time begins to run shall not be included. Thereafter, every day shall be counted, including holidays, Saturdays or Sundays. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. The “next day” is determined by continuing to count forward when the period is measured after an event and backward when measured before an event.

(2) As used in this Rule, “Legal holiday” includes the first day of January, observed as New Year’s Day; the third Monday in January, observed as Martin Luther King Day; the third Monday in February, observed as Washington-Lincoln Day; the last Monday in May, observed as Memorial Day; the fourth day of July, observed as Independence Day; the first Monday in September, observed as Labor Day; the second Monday in October, observed as Columbus Day; the 11th day of November, observed as Veteran’s Day; the fourth Thursday in November, observed as Thanksgiving Day; the twenty-fifth day of December, observed as Christmas Day, and any other day except Saturday or Sunday when the court is closed.

(b) Enlargement. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may, at any time in its discretion (1) with or without motion or notice, order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under Rules 59 and 60(b), except to the extent and under the conditions therein stated.

(c) Unaffected by Expiration of Term. Repealed.

(d) For Motions — Affidavits. Repealed.

(e) Additional Time After Service Under C.R.C.P. 5(b)(2)(B), (C), or (D). Repealed.

HISTORY: Source: (e) amended and effective September 6, 1990; (a) amended and effective October 22, 1992; (a) and (e) amended and adopted October 20, 2005, effective January 1, 2006; (a) and (e) amended and effective and (e) committee comment added and effective June 28, 2007; (a) corrected and effective November 5, 2007; (a) amended, (c), (d), and (e) repealed, and (e) committee comment deleted and adopted December 14, 2011, effective January 1, 2012, for all cases pending on or filed on or after January 1, 2012, pursuant to C.R.C.P. 1(b); comment added and adopted June 21, 2012, effective July 1, 2012.

Cross references: For times courts open during terms of court, see C.R.C.P. 77(a); for motions for post-trial relief, see C.R.C.P. 59; for relief from judgment, order, or proceedings for mistakes, inadvertence, surprise, excusable neglect, and fraud, etc., see C.R.C.P. 60(b); for process, see C.R.C.P. 4; for service and filing of pleadings and other papers, see C.R.C.P. 5; for time for filing opposing affidavits for a new trial, see C.R.C.P. 59(d).

COMMENT After the particular effective date, time computation in most situations is intended to incorporate the Rule of Seven. Under the Rule of Seven, a day is a day, and because calendars are divided into 7-day week intervals, groupings of days are in 7-day or multiples of 7-day intervals. Groupings of less than 7 days have been left as they were because such small numbers do not interfere with the underlying concept. Details of the Rule of Seven reform are set forth in an article by Richard P. Holme, 41 Colo. Lawyer, Vol. 1, P 33 (January 2012).

Time computation is sometimes “forward,” meaning starting the count at a particular stated event [such as date of filing] and counting forward to the deadline date. Counting “backward” means counting backward from the event to reach the deadline date [such as a stated number of days being allowed before the commencement of trial]. In determining the effective date of the Rule of Seven time computation/time interval amendments having a statutory basis, said amendments take effect on July 1, 2012 and regardless of whether time intervals are counted forward or backward, both the time computation start date and deadline date must be after June 30, 2012. Further, the time computation/time interval amendments do not apply to modify the settings of any dates or time intervals set by an order of a court entered before July 1, 2012.

RECENT ANNOTATIONS

The procedural computation of time for Colorado state courts’ civil proceedings specified in section (a)(1) does not govern the computation of time periods provided in § 13-80-102. Williams v. Crop Prod. Servs., Inc., 2015 COA 64, __ P.3d __ [published May 7, 2015].

ANNOTATION

I. General Consideration.
II. Computation.
III. Enlargement.
   A. In General.
   B. Before Expiration.
   C. After Expiration.
IV. Unaffected by Expiration of Term.

I. GENERAL CONSIDERATION. Law reviews. For article, “Pre-Trial in Colorado in Words and at Work”, see 27 Dicta 157 (1950). For article, “Notes on Proposed Amendments to Colorado Rules of Civil Procedure”, see 27 Dicta 165 (1950). For article, “Amendments to the Colorado Rules of Civil Procedure”, see 28 Dicta 242 (1951). For article, “Commitment Procedures in Colorado”, see 29 Dicta 273 (1952). For article, “2006 Amendments to the Civil Rules: Modernization, New Math, and Polishing”, see 35 Colo. Law. 21 (May 2006). For article, “‘Rule of Seven’ for Trial Lawyers: Calculating Litigation Deadlines”, see 41 Colo. Law. 33 (January 2012).

The provisions of section (e) authorize the addition of three days to the prescribed period for taking certain actions following service by mail. However, the time for filing a C.R.C.P. 59 motion is specifically triggered either by entry of judgment in the presence of the parties or by mailing of notice of the court’s entry of judgment if all parties were not present when judgment was entered. As a result, section (e) is not applicable to the filing of C.R.C.P. 59 motions. Wilson v. Fireman’s Fund Ins. Co., 931 P.2d 523 (Colo. App. 1996).

The provision of section (e) authorizing the addition of three days for service by e-filing does not apply to statutorily proscribed time periods. This rule does not extend the time period for accepting an offer of settlement under § 13-17-202. Montoya v. Connolly’s Towing, Inc., 216 P.3d 98 (Colo. App. 2008).

Section (e) does not modify statutory time period for petitions to review workers’ compensation orders. Speier v. Indus. Claim Appeals Office, 181 P.3d 1173 (Colo. App. 2008).

Applied in Joslin Dry Goods Co. v. Villa Italia, Ltd., 35 Colo. App. 252, 539 P.2d 137 (1975); Joslins Dry Goods Co. v. Villa Italia, Ltd., 541 P.2d 118 (Colo. App. 1975); SCA Servs., Inc. v. Gerlach, 37 Colo. App. 20, 543 P.2d 538 (1975); Reiger v. Reiger, 39 Colo. App. 471, 566 P.2d 722 (1977); People ex rel. Garrison v. Lamm, 622 P.2d 87 (Colo. App. 1980); Cortez v. Brokaw, 632 P.2d 635 (Colo. App. 1981); Nat’l Account Sys. v. District Court, 634 P.2d 48 (Colo. 1981); Kofoed v. Blecker, 644 P.2d 74 (Colo. App. 1981); Marks v. District Court, 643 P.2d 741 (Colo. 1982); Blecker v. Kofoed, 672 P.2d 526 (Colo. 1983); Garcia v. Title Ins. Co. of Minnesota, 712 P.2d 1114 (Colo. App. 1985).

II. COMPUTATION. Day of the act or event from which period runs not to be included in computation. In computing any period of time prescribed or allowed by statute, the day of the act or event from which the designated period of time begins to run is not to be included, but the last day of the period is to be included. Cade v. Regensberger, 804 P.2d 238 (Colo. App. 1990).

Where a complaint is filed on Saturday, and an adjudication had on the following Thursday, such adjudication is invalid for failure to comply with the statutory requirement of five days’ notice of the commencement of the proceedings, Saturday being the filing date and therefore eliminated, and Sunday being excluded under this rule, since, the adjudication was held one day less than the minimum requirement of notice. Okerberg v. People, 119 Colo. 529, 205 P.2d 224 (1949).

A motion for a new trial filed on Monday, the eleventh day after the entry of judgment, is timely. Bursack v. Moore, 165 Colo. 414, 439 P.2d 993 (1968).

In computing the time for serving subpoenas, computation shall not include the day of the act or intermediate Saturdays, Sundays, and legal holidays. Thus, subpoenas which were served on Friday morning, directing the witnesses to appear on Monday morning, were not served 48 hours before the time the witnesses were to appear and were properly quashed. Wilkerson v. State, 830 P.2d 1121 (Colo. App. 1992).

Applied in N.E., Inc. v. Iliff & Monaco Assocs., 890 P.2d 146 (Colo. App. 1994).

III. ENLARGEMENT.

A.In General. By its own clear terms, section (b) of this rule does not apply to a time period specified by the Colorado appellate rules. The phrase “these rules” plainly refers to the Colorado rules of civil procedure, of which this rule is a part. Farm Deals, LLLP v. State, 2012 COA 6, 300 P.3d 921.

Section (b) does not apply to the statutory deadline for payment of jury fees. If a statute sets forth a particular deadline or procedure, court-promulgated rules do not apply. Premier Members Fed. Credit Union v. Block, 2013 COA 128, 312 P.3d 276.

The trial court has broad latitude under section (b)(2) in permitting enlargement of time within which to file responsive pleadings. People v. McBeath, 709 P.2d 38 (Colo. App. 1985).

The time limits set by the court cannot be extended by a stipulation of the parties to a motion requesting an extension, unless the court approves. Moyer v. Empire Lodge Homeowner’s Assoc., 78 P.3d 313 (Colo. 2003).

The granting of an extension of the period allowed for the filing of a reporter’s transcription with the clerk rests within the sound discretion of the trial court. Mitchell v. Espinosa, 125 Colo. 267, 243 P.2d 412 (1952).

The action taken will not be disturbed on review in the absence of a clear showing of abuse of that discretion. Mitchell v. Espinosa, 125 Colo. 267, 243 P.2d 412 (1952); Farmer v. Norm “Fair Trade” Stamp, Inc., 164 Colo. 156, 433 P.2d 490 (1967).

Where a reporter’s transcript is lodged with the clerk late after the entry of judgment, no application having been made for extension of time pursuant to section (b) of this rule, the reporter’s transcript will be ordered stricken from the record on appeal. Hildenbrandt v. Hall, 129 Colo. 16, 269 P.2d 708 (1954).

Where it is clearly manifest that no attempt was made to comply with the provisions concerning the filing of reporter’s transcripts, nor was any relief sought from their more or less strict requirements through resort to the simple procedure provided by section (b) of this rule, it is the disagreeable duty of an appellate court to be obliged to adhere to established precedent that the reporter’s transcript be stricken from the record on appeal. Continental Air Lines v. City & County of Denver, 129 Colo. 1, 266 P.2d 400 (1954); Freeman v. Cross, 134 Colo. 437, 305 P.2d 759 (1957).

Where a case is before an appellate court on appeal, a motion for enlargement of time for filing a transcript of record should be made to the appellate court, not the trial court. Moreau v. Buchholz, 124 Colo. 302, 236 P.2d 540 (1951).

Removal to federal court made within extended time is timely. When the time for answer after service of summons has been extended by a state court, a motion for removal to a federal court made within the extended time is timely made. Oldland v. Gray, 179 F.2d 408 (10th Cir.), cert denied, 339 U.S. 948, 70 S. Ct. 803, 94 L. Ed. 1362 (1950).

When no motion to extend is made pursuant to this rule, it may be stricken. When one files no motion to extend, nor does the trial court on its own motion extend a period before its expiration, and after the time expires, defendant files no motion alleging excusable neglect in failing to comply with the time limitation set by the court, there is no basis for the court to deny a motion to strike the motion in view of the provisions of section (b) of this rule. AA Constr. Co. v. Gould, 28 Colo. App. 161, 470 P.2d 916 (1970).

Deposit of motion in mail on last day of extension not a sufficient filing. Where, under this rule, a 15-day period was allowed a proponent of a will to make a motion and on the fifteenth day the original motion was deposited in the United States mail for delivery to the court, such delivery was not a sufficient filing, since the deposit of the motion with the clerk, with intent that he retain it, he being in any sufficient manner notified of this purpose, is the essential thing to constitute a filing. Niles v. Shinkle, 119 Colo. 458, 204 P.2d 1077 (1949).

Amendment to timely filed objection permitted. There is no prohibition against filing an amendment to a timely filed objection to a master’s report before a hearing on that objection has occurred. Rocky Mt. Power Co. v. Colo. River Water Conservation Dist., 646 P.2d 383 (Colo. 1982).

For history of section (b), see In re Van Camp, 632 P.2d 1062 (Colo. App. 1981).

Applied in Walter v. Walter, 136 Colo. 405, 318 P.2d 221 (1957); Stuckman v. Kasal, 158 Colo. 232, 405 P.2d 948 (1965).

B.Before Expiration. Under section (b)(1) of this rule, enlargements of time are so readily obtainable where application is made therefor within apt time that there is rarely an occasion where failure to do so would appear to be excusable. Smith v. Woodall, 129 Colo. 435, 270 P.2d 746 (1954); Freeman v. Cross, 134 Colo. 437, 305 P.2d 759 (1957).

C.After Expiration. Extensions of time are a nullity where they are not obtained in the manner prescribed in section (b)(2) of this rule. Marcotte v. Olin Mathieson Chem. Corp., 162 Colo. 131, 425 P.2d 37 (1967).

The court’s failure to act on a motion to enlarge time period before the time has expired does not automatically extend an existing deadline. Moyer v. Empire Lodge Homeowner’s Assoc., 78 P.3d 313 (Colo. 2003).

Court’s permission on motion with cause shown is necessary. Authority, under this rule, for a court to permit a paper to be filed upon cause shown and on motion therefor, in the case of excusable neglect, is certainly not authority for such filing without permission of the court, without cause shown, and without motion therefor. Niles v. Shinkle, 119 Colo. 458, 204 P.2d 1077 (1949).

The trial court has broad latitude under the provisions of section (b)(2) of this rule. Farmer v. Norm “Fair Trade” Stamp, Inc., 164 Colo. 156, 433 P.2d 490 (1967).

A court of review will assume that an extension was properly made, in the absence of proper objections to the order of the court. Niles v. Shinkle, 119 Colo. 458, 204 P.2d 1077 (1949).

A trial court may, for good cause, allow an extension of time to file an answer, even though the original time limit has passed. Reap v. Reap, 142 Colo. 354, 350 P.2d 1063 (1960).

Under the language of this rule, the right to file an answer brief is lost where no request for extension of time is made within the time limit the brief was due, except upon a showing that failure to act was the result of excusable neglect. Fraka v. Malernee, 129 Colo. 87, 267 P.2d 651 (1954).

Exception not expanded to reliance on postal employee’s assurance of timely delivery. The exception to the requirement of strict compliance with the time limits for filing new trial motions will not be expanded to include late filings resulting from counsel’s reliance on a postal employee’s assurance of timely delivery, because such expansion would be inconsistent with the language of section (b) and with the policy of giving finality to judgments after a reasonable time has been allowed to seek appellate review. Schuster v. Zwicker, 659 P.2d 687 (Colo. 1983).

“Excusable neglect” occurs when there has been a failure to take proper steps at the proper time, not in consequence of carelessness, but as the result of some unavoidable hindrance or accident. Farmers Ins. Group v. District Court, 181 Colo. 85, 507 P.2d 865, cert. denied, 414 U.S. 878, 94 S. Ct. 156, 38 L. Ed. 2d 123 (1973); Moyer v. Empire Lodge Homeowner’s Assoc., 78 P.3d 313 (Colo. 2003).

If statutory section expressly permits a court to accept nonparty designations filed outside the 90-day period when it determines that a “longer period is necessary”, the provisions of section (b)(2) concerning demonstration of “excusable neglect” do not apply. Antolovich v. Brown Group Retail, Inc., 183 P.3d 582 (Colo. App. 2007).

In general, most such situations involve unforeseen occurrences. It is impossible to describe the myriad situations showing excusable neglect, but, in general, most situations involve unforeseen occurrences such as personal tragedy, illness, family death, destruction of files, and other similar situations which would cause a reasonably prudent person to overlook a required deadline date in the performance of some responsibility. Farmers Ins. Group v. District Court, 181 Colo. 85, 507 P.2d 865, cert. denied, 414 U.S. 878, 94 S. Ct. 156, 38 L. Ed. 2d 123 (1973).

Failure to act due to carelessness and negligence is not excusable neglect. Farmers Ins. Group v. District Court, 181 Colo. 85, 507 P.2d 865, cert. denied, 414 U.S. 878, 94 S. Ct. 156, 38 L. Ed. 2d 123 (1973).

Section (b) of this rule provides that a court may not extend the time for taking any action under C.R.C.P. 50(b) (provisions now in C.R.C.P. 59); therefore, filing a motion for judgment notwithstanding the verdict within 10 days after receipt of verdict is mandatory, and unless such motion is filed within the time prescribed the court has no power to pass on it. Ross v. Arrow Mfg. Co., 134 Colo. 530, 307 P.2d 196 (1957).

An order for the enlargement of the time within which a motion for a direct verdict after verdict can be filed is abortive in view of the specific provisions of section (b) of this rule prohibiting such enlargement. Mumm v. Adam, 134 Colo. 493, 307 P.2d 797 (1957).

A trial court cannot enlarge the time for the filing of a motion for new trial after the expiration of the specified period permitted by the rules. Austin v. Coll./Univ. Ins. Co. of Am., 30 Colo. App. 502, 495 P.2d 1162 (1972).

Rule is controlling over C.R.C.P. 60(b), as to whether a trial court may extend the period of time for filing a motion for new trial under C.R.C.P. 59(b) (now C.R.C.P. 59(d)), after the original filing period has expired. Liberty Mutual Ins. Co. v. Safeco Ins. Co., 679 P.2d 1115 (Colo. App. 1984).

District court is without discretionary power to deny a motion for default judgment where the opposing party, not an agency of the state, fails to comply with a court order requiring a certain act be done within a specified time and, after expiration of that time, fails to establish such failure to act was a result of excusable neglect. Sauer v. Heckers, 34 Colo. App. 217, 524 P.2d 1387 (1974).

A trial court is in error in extending the period of redemption after the redemption period had already expired; redemption is a purely statutory matter, and there is no rule that would allow the court to enlarge it. AA Constr. Co. v. Gould, 28 Colo. App. 161, 470 P.2d 916 (1970).

Applied in Business & Prod. Promotion, Inc. v. East Tincup, Inc., 154 Colo. 268, 389 P.2d 851 (1964).

IV. UNAFFECTED BY EXPIRATION OF TERM. Law reviews. For comment on Green v. Hoffman appearing below, see 24 Rocky Mt. L. Rev. 376 (1952).

Section (c) of this rule held inapplicable where section (b) excludes matters under C.R.C.P. 59(e). Green v. Hoffman, 126 Colo. 104, 251 P.2d 933 (1952).


C.R.C.P. 59

 

COLORADO COURT RULES
Copyright (c) 2016 by Matthew Bender & Company Inc.
All rights reserved

*** This document reflects changes received through February 19, 2016 ***

COLORADO RULES OF CIVIL PROCEDURE  
CHAPTER 6 JUDGMENT

C.R.C.P. 59 (2016)

Rule 59. Motions for Post-Trial Relief.

(a) Post-Trial Motions. Within 14 days of entry of judgment as provided in C.R.C.P. 58 or such greater time as the court may allow, a party may move for post-trial relief including:

(1) A new trial of all or part of the issues;

(2) Judgment notwithstanding the verdict;

(3) Amendment of findings; or

(4) Amendment of judgment. Motions for post-trial relief may be combined or asserted in the alternative. The motion shall state the ground asserted and the relief sought.

(b) No Post-Trial Motion Required. Filing of a motion for post-trial relief shall not be a condition precedent to appeal or cross-appeal, nor shall filing of such motion limit the issues that may be raised on appeal.

(c) On Initiative of Court. Within the time allowed the parties and upon any ground available to a party, the court on its own initiative, may:

(1) Order a new trial of all or part of the issues;

(2) Order judgment notwithstanding the verdict;

(3) Order an amendment of its findings; or

(4) Order an amendment of its judgment. The court’s order shall specify the grounds for such action.

(d) Grounds for New Trial. Subject to provisions of Rule 61, a new trial may be granted for any of the following causes:

(1) Any irregularity in the proceedings by which any party was prevented from having a fair trial;

(2) Misconduct of the jury;

(3) Accident or surprise, which ordinary prudence could not have guarded against;

(4) Newly discovered evidence, material for the party making the application which that party could not, with reasonable diligence, have discovered and produced at the trial;

(5) Excessive or inadequate damages; or

(6) Error in law. When application is made under grounds (1), (2), (3), or (4), it shall be supported by affidavit filed with the motion. The opposing party shall have 21 days after service of an affidavit within which to file opposing affidavits, which period may be extended by the court or by written stipulation between the parties. The court may permit reply affidavits.

(e) Grounds for Judgment Notwithstanding Verdict. A judgment notwithstanding verdict may be granted for either of the following grounds:

(1) Insufficiency of evidence as a matter of law; or

(2) No genuine issue as to any material fact and the moving party being entitled to judgment as a matter of law. A motion for directed verdict shall not be a prerequisite to any form of post-trial relief, including judgment notwithstanding verdict.

(f) Scope of Relief in Trials to Court. On motion for post-trial relief in an action tried without a jury, the court may, if a ground exists, open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct entry of a new judgment.

(g) Scope of Relief in Trials to a Jury. On motion for post-trial relief in a jury trial, the court may, if a ground exists, order a new trial or direct entry of judgment. If no verdict was returned, the court may, if a ground exists, direct entry of judgment or order a new trial.

(h) Effect of Granting New Trial. The granting of a new trial shall not be an appealable order, but a party by participating in the new trial shall not be deemed to have waived any objection to the granting of the new trial, and the validity of the order granting new trial may be raised by appeal after final judgment has been entered in the case.

(i) Effect of Granting Judgment Notwithstanding Verdict, Amendment of Findings or Amendment of Judgment. Subject to C.R.C.P. 54(b), granting of judgment notwithstanding the verdict, amendment of findings or amendment of judgment shall be an appealable order.

(j) Time for Determination of Post-Trial Motions. The court shall determine any post-trial motion within 63 days (9 weeks) of the date of the filing of the motion. Where there are multiple motions for post-trial relief, the time for determination shall commence on the date of filing of the last of such motions. Any post-trial motion that has not been decided within the 63-day determination period shall, without further action by the court, be deemed denied for all purposes including Rule 4(a) of the Colorado Appellate Rules and time for appeal shall commence as of that date.

(k) When Judgment Becomes Final. For purposes of this Rule 59, judgment shall be final and time for filing of notice of appeal shall commence as set forth in Rule 4(a) of the Colorado Appellate Rules.

HISTORY: Source: (a) amended March 17, 1994, effective July 1, 1994; entire rule amended and effective October 11, 2001; IP(a), (a) last paragraph, (d) last paragraph, and (j) amended and adopted December 14, 2011, effective January 1, 2012, for all cases pending on or filed on or after January 1, 2012, pursuant to C.R.C.P. 1(b).



ANNOTATION

I. General Consideration.
II. Post-Trial Motions.
   A. New Trial.
   B. Judgment Notwithstanding the Verdict.
   C. Amendment of Judgment.
III. On Initiative of Court.
IV. Grounds for New Trial.
   A. In General.
   B. Irregularity in Proceedings.
   C. Misconduct of Jury.
   D. Accident or Surprise.
   E. Newly Discovered Evidence.
   F. Excessive or Inadequate Damages.
   G. Error in Law.
V. Grounds for Judgment Notwithstanding Verdict.
VI. Effect of Granting New Trial.
VII. Effect of Granting Judgment Notwithstanding Verdict, Amendment of Findings, or Amendment of Judgment.
VIII. Time for Determination of Post-Trial Motions.

I. GENERAL CONSIDERATION.

Law reviews. For article, “Misconduct of Jury — Ground for New Trial”, see 16 Dicta 317 (1939). For article, “Notes on Proposed Amendments to Colorado Rules of Civil Procedure”, see 27 Dicta 165 (1950). For article, “Amendments to the Colorado Rules of Civil Procedure”, see 28 Dicta 242 (1951). For article, “Judgment: Rules 54-63”, see 23 Rocky Mt. L. Rev. 581 (1951). For article, “Appellate Procedure and the New Supreme Court Rules”, see 30 Dicta 1 (1953). For article, “Civil Remedies and Civil Procedure”, see 30 Dicta 465 (1953). For article, “One Year Review of Civil Procedure”, see 34 Dicta 69 (1957). For article, “One Year Review of Civil Procedure and Appeals”, see 36 Dicta 5 (1959). For article, “One Year Review of Civil Procedure and Appeals”, see 37 Dicta 21 (1960). For article, “One Year Review of Civil Procedure and Appeals”, see 38 Dicta 133 (1961). For article, “One Year Review of Civil Procedure and Appeals”, see 39 Dicta 133 (1962). For article, “One Year Review of Civil Procedure and Appeals”, see 40 Den. L. Ctr. J. 66 (1963). For note, “One Year Review of Civil Procedure”, see 41 Den. L. Ctr. J. 67 (1964). For note, “New Trial Motion in Colorado — Some Significant Changes”, see 37 U. Colo. L. Rev. 379 (1965). For a discussion of federal jurisdiction arising under this rule, see survey of Tenth Circuit decisions on federal practice and procedure, 53 Den. L.J. 153 (1976). For article, “The One Percent Solution”, see 11 Colo. Law. 86 (1982). For article, “Federal Practice and Procedure”, which discusses a Tenth Circuit decision dealing with post-trial motions, see 62 Den. U. L. Rev. 232 (1985). For article, “Post-Trial Motions in the Civil Case: An Appellate Perspective”, see 32 Colo. Law. 71 (November 2003).

Annotator’s note. Since this rule, as it existed prior to January 1, 1985, was similar to §§ 237 and 238 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, and, since present provisions of sections (e) and (i) of this rule are similar to C.R.C.P. 50(b) and (c), as they existed prior to January 1, 1985, relevant cases construing §§ 237 and 238 of the former code and former C.R.C.P. 50(b) and (c) have been included in the annotations to this rule.

Purpose of a motion for a new trial is to give the trial court an opportunity to correct alleged errors. Danielson v. Kerbs AG., Inc., 646 P.2d 363 (Colo. 1982).

The primary purpose of a motion to amend judgment or for new trial is to give the court an opportunity to correct any errors that it may have made. In re Jones, 668 P.2d 980 (Colo. App. 1983).

Relief sought, and therefore time limitations, for judgment entered pursuant to C.R.C.P. 58 is pursuant to section (a)(4) of this rule even though relief sought was from costs taxed by clerk pursuant to C.R.C.P. 54. Davis v. Bruton, 797 P.2d 830 (Colo. App. 1990).

This rule authorizes the filing of a motion for new trial and empowers the court under certain conditions to grant a new trial on all or part of the issues. Dale v. Safeway Stores, Inc., 152 Colo. 581, 383 P.2d 795 (1963).

A motion for reconsideration of an order granting a new trial is not governed by this section because such order is not a final judgment. Bowman v. Songer, 820 P.2d 1110 (Colo. 1991).

A motion to reconsider is not specifically delineated in this rule, and no other rule or statute establishes a party’s right to file such a motion, except under the Administrative Procedure Act and the Colorado appellate rules. Stone v. People, 895 P.2d 1154 (Colo. App. 1995).

A motion to reconsider in light of new circumstances or newly discovered evidence is not subject to the limitations in section (d) of this rule. UIH-SFCC Holdings, L.P. v. Brigato, 51 P.3d 1076 (Colo. App. 2002).

New trial is the only means for trial court to change judgment. Once a valid judgment is entered the only means by which the trial court may thereafter alter, amend, or vacate the judgment is by appropriate motion under either this rule or C.R.C.P. 60. Cortvriendt v. Cortvriendt, 146 Colo. 387, 361 P.2d 767 (1961); In re Warner, 719 P.2d 363 (Colo. App. 1986).

Plaintiff’s motion to reconsider the summary judgment determination must be characterized as a motion for new trial under section (d)(4). The primary purpose of a motion for a new trial is to give the trial court an opportunity to correct any errors it may have made. Graven v. Vail Assocs., Inc., 888 P.2d 310 (Colo. App. 1994); Zolman v. Pinnacol Assurance, 261 P.3d 490 (Colo. App. 2011).

Retired judge may not entertain a motion for a new trial. After the expiration of his term of office, a judge may not entertain a motion under this rule, even though such motion is filed in a proceeding wherein the “former” judge had himself entered the final judgment at a time when he was actually serving as a judge. Olmstead v. District Court, 157 Colo. 326, 403 P.2d 442 (1965).

An appellate court does not grant or deny motions filed subsequent to entry of judgment under this rule since this is a function of the trial court; once a trial court has acted, however, an appellate court may in appropriate proceedings be called upon to review the propriety of the action thus taken by it. Olmstead v. District Court, 157 Colo. 326, 403 P.2d 442 (1965).

Court of appeals had subject matter jurisdiction to rule on issue to setoff two judgments and to enter single judgment despite fact that second notice of appeal to amended judgment was untimely where plaintiff raised issue of lack of setoff in trial court. Husband v. Colo. Mountain Cellars, 867 P.2d 57 (Colo. App. 1993).

Motion for new trial is analogous to motion for reconsideration, reargument, or rehearing in a proceeding before the public utilities commission. Peoples Natural Gas Div. v. Pub. Utils. Comm’n, 626 P.2d 159 (Colo. 1981).

An order denying a motion for a new trial does not deprive the court of jurisdiction to reconsider. Zehnder v. Thirteenth Judicial Dist. Court, 193 Colo. 502, 568 P.2d 457 (1977).

Lack of a proper order, entered in accordance with C.R.C.P. 58, determining a motion under this rule was not fatal to appeal where party appealed from underlying order of dissolution of marriage, not from denial of the motion. In re Christen, 899 P.2d 339 (Colo. App. 1995).

After reconsideration of the motion to set aside, the court can adhere to its order which has the effect of striking the motion for a new trial. Zehnder v. Thirteenth Judicial Dist. Court, 193 Colo. 502, 568 P.2d 457 (1977).

Court has duties upon timely filing of motion. Where a timely motion for a new trial is filed, it is then incumbent upon the district court to either set the motion for hearing or to dispense with oral argument and decide the motion on the basis of the written briefs alone. Danielson v. Kerbs AG., Inc., 646 P.2d 363 (Colo. 1982).

A trial court has great discretion in granting of motions for new trials. DeMott v. Smith, 29 Colo. App. 531, 486 P.2d 451 (1971).

In determining whether a new trial should be granted, the trial court has broad discretionary powers. Park Stations, Inc., v. Hamilton, 38 Colo. App. 216, 554 P.2d 311 (1976).

Whether or not a new trial is granted is usually a matter for the sound discretion of the trial judge whose presence and observation at the trial better equip him for making this decision. First Nat’l Bank v. Campbell, 198 Colo. 344, 599 P.2d 915 (1979).

The trial court properly exercised discretion when granting a motion for reconsideration in order to correct a previous erroneous ruling on a motion to reconsider if done within 60 days of the prior ruling. In re Nixon, 785 P.2d 151 (Colo. App. 1989).

Where the record indicated that no further issues of material fact remained to be addressed, summary judgment was a final judgment despite trial court order indicating that genuine issues of material fact remained to be addressed, and district court lacked jurisdiction for further orders. Driscoll v. District Court, 870 P.2d 1250 (Colo. 1994).

Order reversed where court substitutes opinion on disputed facts. Orders granting new trials are subject to reversal where it appears from the record that the trial court has merely substituted its opinion on disputed questions of fact for that of the jury. DeMott v. Smith, 29 Colo. App. 531, 486 P.2d 451 (1971); Roth v. Stark Lumber Co., 31 Colo. App. 121, 500 P.2d 145 (1972).

Where the court failed to rule on a motion for reconsideration within 60 days, the court effectively denied the motion, the judgment became final, and the court lost jurisdiction for any further action. Driscoll v. District Court, 870 P.2d 1250 (Colo. 1994).

Automatic denial after the 60-day determination period described in section (j) of this rule is mandatory. Actions taken by the court under this rule after the 60-day period are outside the court’s jurisdiction and void. De Avila v. Estate of DeHerrera, 75 P.3d 1144 (Colo. App. 2003).

But divestiture of jurisdiction under this rule does not preclude the court from considering proper motions made under C.R.C.P. 60. De Avila v. Estate of DeHerrera, 75 P.3d 1144 (Colo. App. 2003).

A trial judge may not change the substance of a jury’s verdict upon his own motion. Leo Payne Pontiac, Inc. v. Ratliff, 178 Colo. 361, 497 P.2d 997 (1972).

The granting of a new trial by the trial court should be reversed if the reasons for granting a new trial do not constitute legal grounds, or do not in fact exist. DeMott v. Smith, 29 Colo. App. 531, 486 P.2d 451 (1971).

In trial by court, judge retains jurisdiction after motion filed. Upon the filing of the motion for new trial within the time provided by rule, the trial court retained full power to correct any and all errors theretofore committed in the trial to the court. Goodwin v. Eller, 127 Colo. 529, 258 P.2d 493 (1953).

Filing of motion operates to continue jurisdiction of court. Where a trial was to the court, and its findings were announced, and counsel gave notice of a motion for a new trial, and subsequently at the same term filed his motion, but the motion was not disposed of until the subsequent term, held that the proceedings at the first term, subsequent to the findings, operated to reserve the case and to continue the jurisdiction beyond that term, for the purpose of disposing of the motion and the settling of the bill of exceptions. Gomer v. Chaffe, 5 Colo. 383 (1880).

The trial court may reverse judgment. Where an action has been tried to the court without a jury, and a motion for new trial has been filed after entry of findings and judgment, the trial court has the power, upon consideration of such motion, to vacate the original findings and judgment, reverse itself, and enter a judgment in favor of the opposite party. Goodwin v. Eller, 127 Colo. 529, 258 P.2d 493 (1953); Smith v. Whitlow, 129 Colo. 239, 268 P.2d 1031 (1954).

Trial court properly refused to consider the issues raised in affidavits and did not abuse its discretion in denying plaintiff’s motion to reconsider since affidavits filed after the granting of a motion for summary judgment cannot be considered on a motion to reconsider and a court need not entertain new theories on a motion to reconsider following the grant of summary judgment. Graven v. Vail Assocs., Inc., 888 P.2d 310 (Colo. App. 1994).

The court will not address issues raised for the first time in a reply brief on a post-trial motion for the same reason that issues will not be considered when raised for the first time in reply briefs on appeal. Flagstaff Enters. Constr. Inc. v. Snow, 908 P.2d 1183 (Colo. App. 1995).

Court may limit issues to be retried. When error exists as to only one or more issues and the judgment is in other respects free from error, a reviewing court may, when remanding the cause for a new trial, whether by the court or a jury, limit the new trial to the issues affected by the error whenever these issues are entirely distant and separable from the matters involved in other issues and the trial can be had without danger of complication with other matters. Murrow v. Whitely, 125 Colo. 392, 244 P.2d 657 (1952).

Where the practice permits a partial new trial, it may not properly be resorted to unless it clearly appears that the issue to be retried is so distinct and separable from the others that a trial of it alone may be had without injustice to either party. Murrow v. Whiteley, 125 Colo. 392, 244 P.2d 657 (1952).

Where the issues of damages and of liability in the action are closely intertwined, it would be error to confine the new trial solely to the liability issue. Where the issues at trial are interrelated and depend upon one another for determination, then error which requires a new trial on one issue will, of necessity, require a new trial as to all issues. Bassett v. O’Dell, 30 Colo. App. 215, 491 P.2d 604 (1971), aff’d, 178 Colo. 425, 498 P.2d 1134 (1972).

Under this rule, the court may, on review, subject dependency proceedings to a complete review, in furtherance of which he is empowered, inter alia, to reconsider the petition, take additional testimony, amend findings of fact and conclusions of law, or make new findings and conclusions, and direct the entry of a new order. People in Interest of S.S.T., 38 Colo. App. 110, 553 P.2d 418 (1976).

The motion for a new trial set forth numerous alleged errors of the trial court relating to the admission of evidence, exhibits, the giving and refusal of instructions, and other matters bearing directly upon the issue of liability and which, if overruled, defendants would be entitled to have reviewed upon writ of error. To limit the retrial to the issue of damages alone would deprive them of the full review covering all elements of the case to which they are unquestionably entitled. The trial court acted within its discretion and authority in declining to limit the issues upon retrial. Piper v. District Court, 147 Colo. 87, 364 P.2d 213 (1961).

Original judgment retains force until modified. Irregular and erroneous judgments necessarily retain their force and have effect until modified by a trial court in consequence of its authority in certain circumstances, or until vacated pursuant to new trial procedures under this rule, or until reversed by an appellate court in review proceedings. Such judgments are subject only to direct attack; they are not vulnerable to collateral assault. Davidson Chevrolet, Inc. v. City & County of Denver, 138 Colo. 171, 330 P.2d 1116 (1958), cert. denied, 359 U.S. 926, 79 S. Ct. 609, 3 L. Ed. 2d 629 (1959).

Interest runs from original judgment when motion for new trial is denied. Where a motion for a new trial is overruled and thereafter a trial court computes interest on the verdict and orders judgment in the amount of the verdict and interest, this concludes the trial court’s action relative to the judgment and becomes the final judgment. Green v. Jones, 134 Colo. 208, 304 P.2d 901 (1956).

A memorandum in support of a motion for new trial is not mandatory but it is within the discretion of the trial judge to consider a motion for new trial without a memorandum. West-Fir Studs, Inc. v. Anlauf Lumber Co., 190 Colo. 298, 546 P.2d 487 (1976).

Memorandum brief is for benefit of trial court. Although section (a) (now section (d)) formerly required a memorandum brief and it was within the discretion of the trial court to strike a motion for new trial unaccompanied by such a brief, this requirement was for the benefit of the trial court in its own review and evaluation of its determination of the case, and where the trial court ruled on a motion for new trial without requiring a brief, the brief requirement was waived. L.C. Fulenwider, Inc. v. Ginsberg, 36 Colo. App. 246, 539 P.2d 1320 (1975) (decided prior to 1985 amendment).

The requirement of a memorandum brief in support of a motion for new trial is for the benefit of the trial court in its review of its determination of the case. Where the trial court considers the brief to be sufficient and considers the brief in its ruling on the motion, the brief has fulfilled its purpose as intended by the rules of procedure. In re Flohr, 672 P.2d 1024 (Colo. App. 1983).

Counsel is not entitled to free transcript to aid in preparation of motion. In absence of statute authorizing furnishing of free transcript of proceedings to aid in preparation of motion for new trial, counsel is not entitled to copy for preparation of such motion. People in Interest of A.R.S., 31 Colo. App. 268, 502 P.2d 92 (1972).

A motion for new trial filed in apt time suspends the judgment so that it becomes final only when the motion is overruled. Bates v. Woodward, 66 Colo. 555, 185 P. 351 (1919); Kinney v. Yoelin Bros. Mercantile Co., 74 Colo. 295, 220 P. 998 (1923).

This rule does not apply to appeals in a district court from judgments of a county court. Such appeals are pure creatures of statute, and no motion for a new trial is provided for in such cases. Erbaugh v. Jacobson, 140 Colo. 182, 342 P.2d 1026 (1959).

After an appeal of a final judgment has been perfected, the trial court is without jurisdiction to entertain any motion or any order affecting the judgment. People in Interest of J.L.P., 870 P.2d 1252 (Colo. App. 1994).

Requirement of supporting affidavit serves to demonstrate that one, who moves for a new trial alleging irregularities in prior proceedings that denied him a fair trial, is acting upon a basis of knowledge, not upon a suspicion or mere hope. Peoples Natural Gas Div. v. Pub. Utils. Comm’n, 626 P.2d 159 (Colo. 1981).

Affidavit of losing counsel allowed to support motion for new trial where the affidavit contains factual allegations and a basis of knowledge upon which the motion for a new trial rests. Aldrich v. District Court, 714 P.2d 1321 (Colo. 1986).

Successor judge has discretion to rule on a motion for a new trial which challenges the sufficiency of the evidence. Faris v. Rothenberg, 648 P.2d 1089 (Colo. 1982).

There is nothing in the rules prohibiting early filing of a motion for new trial; they only proscribe motions filed too late. Haynes v. Troxel, 670 P.2d 812 (Colo. App. 1983).

A judgment is final when it disposes of the entire litigation on the merits and a motion for costs does not stay the finality of that judgment. Driscoll v. District Court, 870 P.2d 1250 (Colo. 1994).

The provisions of C.R.C.P. 6(e) authorize the addition of three days to the prescribed period for taking certain actions following service by mail. However, the time for filing a rule 59 motion is specifically triggered either by entry of judgment in the presence of the parties or by mailing of notice of the court’s entry of judgment if all parties were not present when judgment was entered. As a result, C.R.C.P. 6(e) is not applicable to the filing of rule 59 motions. Wilson v. Fireman’s Fund Ins. Co., 931 P.2d 523 (Colo. App. 1996).

Attorney fee issues. Trial court retains jurisdiction to determine motions on attorney fee issues even though the merits of the judgment are pending appeal. Koontz v. Rosener, 787 P.2d 192 (Colo. App. 1989).

Where each party prevails in part an award of costs is committed to sole discretion of trial court and court’s discretion remains unaffected by fact that judgment awarded to one party is larger than judgment awarded to the other. Husband v. Colo. Mountain Cellars, 867 P.2d 57 (Colo. App. 1993).

A request for costs is outside the purview of this section because a decision concerning a request for costs does not amend or otherwise affect the finality of the judgment on the merits. Because a request for costs is not subject to the 60-day limitation, the trial court had jurisdiction to consider the defendant’s bill of costs following the expiration of that period. Hierath-Prout v. Bradley, 982 P.2d 329 (Colo. App. 1999).

Rule not applicable. Motions filed following a jury trial that pertained to unresolved, substantive claims raised in the complaint are not directed at post-judgment relief and, therefore, this rule is not applicable. Church v. Amer. Standard Ins. Co. of Wis., 742 P.2d 971 (Colo. App. 1987).

No error by trial court in denying appellant’s motion for leave to file a motion for reconsideration of motion to dismiss and in rejecting arguments to clarify trial court’s original order. Failure to file motion within time allowed by section (a), absent extension, deprives court of jurisdiction to act under rule. Here, time to file motion for post-trial relief ended before appellant filed motion for leave to file motion for reconsideration of motion to dismiss. As such, motion for leave was untimely, and trial court did not err in denying it. Titan Indem. Co. v. Travelers Prop. Cas. Co. of Am., 181 P.3d 303 (Colo. App. 2007).

Applied in Miller v. Carnation Co., 33 Colo. App. 62, 516 P.2d 661 (1973); City of Englewood v. Reffel, 34 Colo. App. 103, 522 P.2d 1241 (1974); Bd. of County Comm’rs v. Evergreen, Inc., 35 Colo. App. 171, 532 P.2d 777 (1974); Cline v. City of Boulder, 35 Colo. App. 349, 532 P.2d 770 (1975); Lehman v. Williamson, 35 Colo. App. 372, 533 P.2d 63 (1975); Joslin Dry Goods Co. v. Villa Italia, Ltd., 35 Colo. App. 252, 539 P.2d 137 (1975), 541 P.2d 118 (Colo. App. 1975); Dill v. County Court, 37 Colo. App. 75, 541 P.2d 1272 (1975); In re Franks, 189 Colo. 499, 542 P.2d 845 (1975); Lewis v. People in Interest of C.K.L., 189 Colo. 552, 543 P.2d 722 (1975); Poor v. District Court, 190 Colo. 433, 549 P.2d 756 (1976); Miller v. Carnation Co., 39 Colo. App. 1, 564 P.2d 127 (1977); Allred v. City of Lakewood, 40 Colo. App. 238, 576 P.2d 186 (1977); Catron v. Catron, 40 Colo. App. 476, 577 P.2d 322 (1978); Bd. of Water Works v. Pueblo Water Works Employees Local 1045, 196 Colo. 308, 586 P.2d 18 (1978); Taylor v. Barnes, 41 Colo. App. 246, 586 P.2d 238 (1978); State Dept. Natural Res. v. Benjamin, 41 Colo. App. 520, 587 P.2d 1207 (1978); First Nat’l Bank v. Campbell, 41 Colo. App. 406, 589 P.2d 501 (1978); Matthews v. Tri-County Water Conservancy Dist., 42 Colo. App. 80, 594 P.2d 586 (1979); O’Hara Group Denver, Ltd. v. Marcor Hous. Sys., 197 Colo. 530, 595 P.2d 679 (1979); City of Colo. Springs v. Gladin, 198 Colo. 333, 599 P.2d 907 (1979); Hitti v. Montezuma Valley Irrigation Co., 42 Colo. App. 194, 599 P.2d 918 (1979); Ayala v. Colo. Dept. of Rev., 43 Colo. App. 357, 603 P.2d 979 (1979); In re Stroud, 657 P.2d 960 (Colo. App. 1979); People in Interest of J.B.P., 44 Colo. App. 95, 608 P.2d 847 (1980); Matthews v. Tri-County Water Conservancy Dist., 200 Colo. 202, 613 P.2d 889 (1980); Prof’l Group, Ltd. v. Great Falls Props., Inc., 44 Colo. App. 370, 622 P.2d 76 (1980); D.E.B. Adjustment Co. v. Cawthorne, 623 P.2d 82 (Colo. App. 1981); Fitzgerald v. Edelen, 623 P.2d 418 (Colo. App. 1981); Fort Lupton State Bank v. Murata, 626 P.2d 757 (Colo. App. 1981); Craig v. Rider, 628 P.2d 623 (Colo. App. 1980); In re Stroud, 631 P.2d 168 (Colo. 1981); Maltby v. J.F. Images, Inc., 632 P.2d 646 (Colo. App. 1981); In re Stedman, 632 P.2d 1048 (Colo. App. 1981); Young v. Golden State Bank, 632 P.2d 1053 (Colo. App. 1981); In re Van Camp, 632 P.2d 1062 (Colo. App. 1981); People in Interest of E.A., 638 P.2d 278 (Colo. 1981); In re Smith, 641 P.2d 301 (Colo. App. 1981); Duran v. Lamm, 644 P.2d 66 (Colo. App. 1981); Cavanaugh v. State Dept. of Soc. Servs., 644 P.2d 1 (Colo. 1982); Baum v. S.S. Kresge Co., 646 P.2d 400 (Colo. App. 1982); Davis Mfg. & Supply Co. v. Coonskin Props., Inc., 646 P.2d 940 (Colo. App. 1982); Jameson v. Foster, 646 P.2d 955 (Colo. App. 1982); Kennedy v. Leo Payne Broadcasting, 648 P.2d 673 (Colo. App. 1982); State Dept. of Highways v. Pigg, 656 P.2d 46 (Colo. App. 1982); In re Chambers, 657 P.2d 458 (Colo. App. 1982); Parry v. Walker, 657 P.2d 1000 (Colo. App. 1982); Ackmann v. Merchants Mtg. & Trust Corp., 659 P.2d 697 (Colo. App. 1982); Moore v. Wilson, 662 P.2d 160 (Colo. 1983); Acme Delivery Serv., Inc., v. Samsonite Corp., 663 P.2d 621 (Colo. 1983); Blecker v. Kofoed, 714 P.2d 909 (Colo. 1986); Blue Cross of W. New York v. Bukulmez, 736 P.2d 834 (Colo. 1987); Top Rail Ranch Estates, LLC v. Walker, 2014 COA 9, 327 P.3d 321.

II. POST-TRIAL MOTIONS.

A. New Trial.

The purpose of filing a post-trial motion is to give a trial court an opportunity to correct any errors. Walter v. Walter, 136 Colo. 405, 318 P.2d 221 (1957); Minshall v. Pettit, 151 Colo. 501, 379 P.2d 394 (1963); Rowe v. Watered Down Farms, 195 Colo. 152, 576 P.2d 172 (1978).

A motion for a new trial is not to be regarded as a routine or perfunctory matter. Its obvious purpose is to direct the attention of the trial court with at least some degree of specificity to that which the losing litigant asserts to be error, all to the end that the trial court will be afforded a last look, and an intelligent last look, at the controversy still before it. General allegations of error do not comply. Martin v. Opdyke Agency, Inc., 156 Colo. 316, 398 P.2d 971 (1965); Hamilton v. Gravinsky, 28 Colo. App. 408, 474 P.2d 185 (1970).

Order granting new trial is an interlocutory order, and the trial court retains jurisdiction to modify or rescind the order prior to the entry of any final judgment thereafter. A motion for reconsideration of such an order does not challenge the entry of the judgment and is not subject to the limitations of this rule. Songer v. Bowman, 804 P.2d 261 (Colo. App. 1990).

Section (f) of this rule, through the language “if a ground exists”, incorporates the six specific grounds upon which post-trial relief may be granted, which are found in section (d) of the rule. Kincaid v. Western Oper. Co., 890 P.2d 249 (Colo. App. 1994).

Section (b) (now (a)) permits a motion for new trial to be filed within 10 (now 15) days after entry of judgment, which means after entry of an adverse judgment. Bushner v. Bushner, 141 Colo. 283, 348 P.2d 153 (1959).

Where the trial court issued its order nunc pro tunc on April 22, 1974, but the order was not noted in the registry of actions until May 31, 1974, the motion for new trial filed within 10 (now 15) days from that date was timely filed. In re Talarico, 36 Colo. App. 389, 540 P.2d 1147 (1975).

When 10-day rule not applicable. Where the court was granting plaintiff’s motion for a new trial and not acting on its own motion, the 10-day rule set forth in section (b) (now (a)) of this rule was not applicable. Park Stations, Inc. v. Hamilton, 38 Colo. App. 216, 554 P.2d 311 (1976) (decided prior to 1977 and 1985 amendments).

Provision of section (b) (now (a)) is mandatory. Austin v. Coll./Univ. Ins. Co. of Am., 30 Colo. App. 502, 495 P.2d 1162 (1972).

Section (b) (now (a)) is mandatory, and failure to comply with it requires a dismissal of the appeal. SCA Servs., Inc. v. Gerlach, 37 Colo. App. 20, 543 P.2d 538 (1975); Henley v. Wendt, 640 P.2d 271 (Colo. App. 1982).

Timely filing is jurisdictional. Timely filing of a motion for a new trial is jurisdictional. SCA Servs., Inc. v. Gerlach, 37 Colo. App. 20, 543 P.2d 538 (1975).

The failure to file a motion for a new trial within the time prescribed by section (b) (now (a)), as extended by any orders of court pursuant to motions timely made, deprives the court of jurisdiction and requires dismissal of the appeal. Nat’l Account Sys. v. District Court, 634 P.2d 48 (Colo. 1981); Schuster v. Zwicker, 659 P.2d 687 (Colo. 1983); Liberty Mutual Ins. Co. v. Safeco Ins. Co., 679 P.2d 1115 (Colo. App. 1984); In re McSoud, 131 P.3d 1208 (Colo. App. 2006).

A timely motion for a new trial, or to alter or amend the judgment, is a jurisdictional prerequisite to appellate review of such judgment. Watered Down Farms v. Rowe, 39 Colo. App. 169, 566 P.2d 710 (1977), rev’d on other grounds, 195 Colo. 152, 576 P.2d 172 (1978).

Period for filing a motion for a new trial begins when notice of entry of judgment is mailed to the parties, but C.R.C.P. 6(e) extends that period when a judgment is mailed. Because C.R.C.P. 6(e) does not specifically exclude C.R.C.P. 59 motions from its provisions, C.R.C.P. 6(e) extends the time for filing a C.R.C.P. 59 motion when the parties were not present when the judgment was signed and the notice of entry of judgment was mailed to the parties. Littlefield v. Bamberger, 10 P.3d 710 (Colo. App. 2000).

Extension of time is discretionary. Trial judge’s extension of the time for filing the motion for new trial, from 10 (now 15) to 20 days, is within his discretion. City & County of Denver v. Bd. of Adjustment, 31 Colo. App. 324, 505 P.2d 44 (1972).

Discretion to grant or deny belated request. Where party did not file motion for fees until 24 days after expiration of 15-day period and did not request extension of time nor offer excuse for delay, court did not abuse its discretion by denying the motion. Major v. Chons Bros., Inc., 53 P.3d 781 (Colo. App. 2002).

Extension of time for filing post-trial motions. Where the trial court, following judgment, grants a “stay” in order for counsel to have an “opportunity to pursue the matter further”, it intends to extend the permissible time for filing post-trial motions. Blecker v. Kofoed, 672 P.2d 526 (Colo. 1983).

Court of review will assume extension was properly made. Where the time for filing a motion for new trial was extended to 15 (now regular time limit) days after the entry of judgment, the court of review will assume that the extension was properly made, in the absence of proper objections to the order of the county court. Niles v. Shinkle, 119 Colo. 458, 204 P.2d 1077 (1949).

Failure to file motion in time is fatal. The failure to file a motion for a new trial within the time provided by this rule, or within the extended period fixed by the court for so doing, is fatal to the right of review. Therefore, the county court was without jurisdiction to entertain a motion for a new trial after the time allowed by the court; and such motion should have been stricken from the files. Niles v. Shinkle, 119 Colo. 458, 204 P.2d 1077 (1949); City & County of Denver v. Just, 175 Colo. 260, 487 P.2d 367 (1971).

Trial court proceeded in excess of its jurisdiction when it vacated the jury verdict and ordered a new trial outside of the time limits provided by this rule. The trial court had jurisdiction to order a new trial within the time limit only. Beavers v. Archstone Comtys. Ltd., 64 P.3d 855 (Colo. 2003).

For permissibility of filing motion with judge or clerk, see Sprott v. Roberts, 154 Colo. 252, 390 P.2d 465 (1964).

Defendant must file for new trial after his case is dismissed, not after conclusion of entire case. Where a complaint is dismissed as to certain defendants and judgment of dismissal entered under C.R.C.P. 41(b)(1), a court has no power after the time to file a motion for a new trial has expired as to such defendants, to grant a motion for a new trial as to all defendants, such dismissal constituting a judgment on the merits under C.R.C.P. 41. Graham v. District Court, 137 Colo. 233, 323 P.2d 635 (1958).

A judgment is entered only when noted in judgment docket. For purposes of timely filing of a motion for new trial under section (b) (now (a)) of this rule, a judgment is “entered” only upon notation in the judgment docket pursuant to C.R.C.P. 58(a)(3) (now (a)) and C.R.C.P. 79(d). City & County of Denver v. Just, 175 Colo. 260, 487 P.2d 367 (1971).

If this section is not complied with, supreme court cannot review. Where a record on error fails to show compliance with this section requiring the filing of a motion for a new trial, or that a trial court otherwise ordered under section (f), the supreme court will not consider the merits on review. Sullivan v. Modern Music Co., 137 Colo. 292, 324 P.2d 374 (1958) (decided prior to 1985 amendment).

C.R.C.P. 6(a) does apply to extend time under this rule. Bonanza Corp. v. Durbin, 696 P.2d 818 (Colo. 1985).

Court did not forestall 60-day deadline by taking inconclusive action within said period, i.e. scheduling hearing on motion. Canton Oil v. District Court, 731 P.2d 687 (Colo. 1987).

Motion may be filed prior to entry of judgment. A motion for new trial may properly be filed prior to the execution of the written order entering the judgment. In re Jones, 668 P.2d 980 (Colo. App. 1983).

Date of entry of judgment on jury verdict is effective date. The date that judgment on a jury verdict is entered in open court is the effective date of entry of judgment which governs the filing of a motion for new trial under section (b) (now (a)). Henley v. Wendt, 640 P.2d 271 (Colo. App. 1982).

C.R.C.P. 58(a) controls date of entry of judgment. The timeliness of a civil appeal is governed by C.A.R. 4(a) (appeal as of right), not C.R.C.P. 58(a); C.R.C.P. 58(a), however, does control the date of entry of judgment for the purposes of this rule. Moore & Co. v. Williams, 672 P.2d 999 (Colo. 1983).

When post-trial motion is filed prior to entry of judgment, it is deemed to have been filed on the date of entry of judgment, and the 60-day period within which to rule on motion commences to run from said date. People in Interest of T.R.W., 759 P.2d 768 (Colo. App. 1988).

Post-trial motions for attorney fees are subject to the provisions of this rule, and the effect of such motions upon the time limitations of C.A.R. 4(a) are as specified in this rule. Torrez v. Day, 725 P.2d 1184 (Colo. App. 1986).

Evidence was not “newly discovered” when the party seeking a new trial had the evidence in its possession two months prior to the trial court’s judgment, but did not file the evidence with the trial court. Mortgage Invs. Corp. v. Battle Mountain Corp., 70 P.3d 1176 (Colo. App. 2003).

Where there has never been a trial, this section cannot be violated. In a proceeding under the Colorado Children’s Code, title 19, where it was argued that the petition for new trial and demand for jury trial were filed too late, and thus were not in accordance with section (b) (now (a)) of this rule, this argument was rejected since according to the record there had never been any trial held or evidence presented in support of the dependency petition and, hence, no violation of said section could have occurred. C. B. v. People in Interest of J. T. B., 30 Colo. App. 269, 493 P.2d 691 (1971).

The running of the time for filing a notice of appeal is terminated upon the timely filing of a motion for new trial, and the time begins to run anew when that motion is denied. A subsequent motion for new trial that raises issues that either were or could have been raised in the movant’s prior motion does not affect the running of the time for filing the notice of appeal. Wright Farms, Inc. v. Weninger, 669 P.2d 1054 (Colo. App. 1983).

Trial court erred in failing to consider a motion for new trial and motion to amend judgment which were filed after court entered judgment from bench but before judgment was signed as written order and filed. Haynes v. Troxel, 670 P.2d 812 (Colo. App. 1983).

For distinction between considerations governing determination of effect of time limitations in criminal cases and in civil cases, see People v. Moore, 193 Colo. 81, 562 P.2d 749 (1977).

Where defendant did not seek to reopen the divorce proceeding until approximately five years after entry of judgment, none of the grounds of this rule or C.R.C.P. 60 were available to him to reopen the divorce proceeding. McNeece v. McNeece, 39 Colo. App. 160, 562 P.2d 767 (1977).

Extinguishing right of appeal by relating action back to date of judgment. Trial court’s action in relating back matters decided on May 28 to the May 15 entry on the judgment docket had the effect of extinguishing the petitioner’s right to appeal from the determinations made on May 28. Under these circumstances, the 10-day period of section (b) (now (a)) of this rule expired before the remaining issues in the case had even been determined by the trial court. This result contravenes the right of appeal granted by the Colorado constitution. In re Gardella, 190 Colo. 402, 547 P.2d 928 (1976) (decided prior to the 1977 and 1985 amendments).

Motion for judgment “non abstante” is wholly separate and distinct from motion for new trial and does not take the place of one. Ross v. Arrow Mfg. Co., 134 Colo. 530, 307 P.2d 196 (1957).

A motion for a new trial may be joined with a motion for judgment “non abstante” or a new trial may be prayed in the alternative. Ross v. Arrow Mfg. Co., 134 Colo. 530, 307 P.2d 196 (1957).

Granting a motion for judgment n.o.v. does not effect an automatic denial of an alternative motion for a new trial. Grange Mut. Fire Ins. Co. v. Golden Gas Co., 133 Colo. 537, 298 P.2d 950 (1956).

Ruling on both should be made at same time. Where a motion for judgment notwithstanding the verdict or in the alternative for a new trial is filed under this rule, a trial court should make a ruling on both phases of the motion at the same time. Grange Mut. Fire Ins. Co. v. Golden Gas Co., 133 Colo. 537, 298 P.2d 950 (1956).

This rule contemplates that either party to an action is entitled to the trial judge’s decision on both motions, if both are presented. Ross v. Arrow Mfg. Co., 134 Colo. 530, 307 P.2d 196 (1957).

If a trial court errs in granting the motion n.o.v., the party against whom the verdict goes is entitled to have his motion for a new trial considered in respect of asserted substantial trial errors and matters appealing to the discretion of the judge. Ross v. Arrow Mfg. Co., 134 Colo. 530, 307 P.2d 196 (1957).

The cause will be remanded for a ruling on such motion. Where a motion for judgment notwithstanding the verdict or in the alternative for a new trial is filed, and the court erroneously grants the motion for judgment, leaving the motion for a new trial undecided, the cause will be remanded for a ruling on such motion. Ross v. Arrow Mfg. Co., 134 Colo. 530, 307 P.2d 196 (1957).

A decision in favor of the moving party upon the motion for judgment ends the litigation and often makes it possible for an appellate court to dispose of the case without remanding it for a new trial. Ross v. Arrow Mfg. Co., 134 Colo. 530, 307 P.2d 196 (1957).

Trial court may grant a motion for a new trial on all or part of the issues. Trione v. Mike Wallen Standard, Inc., 902 P.2d 454 (Colo. App. 1995).

Before granting a partial new trial, it should clearly appear that the issue to be retried is entirely distinct and separable from the other issues involved in the case and that a partial retrial can be had without injustice to any party. Bassett v. O’Dell, 178 Colo. 425, 498 P.2d 1134 (1972); Trione v. Mike Wallen Standard, Inc., 902 P.2d 454 (Colo. App. 1995).

If a trial court, in reviewing and examining the facts, is dissatisfied with the verdict because it is against the weight, sufficiency, or preponderance of the evidence, it may, under certain limitations, set the same aside and grant a new trial so that the issues of fact may ultimately be determined. Burenheide v. Wall, 131 Colo. 371, 281 P.2d 1000 (1955).

In passing upon such motions, a trial judge is necessarily required to weigh the evidence, so that he may determine whether the verdict was one which might reasonably have been reached. Singer v. Chitwood, 126 Colo. 173, 247 P.2d 905 (1952).

The trial judge has discretion to grant a new trial before another jury if he thinks the verdict is wrong, though there be some evidence to support it, and his action is generally not subject to review on appeal. Burenheide v. Wall, 131 Colo. 371, 281 P.2d 1000 (1955).

Applied in Thorpe v. Durango Sch. Dist. No. 9-R, 41 Colo. App. 473, 591 P.2d 1329 (1978); Luna v. Fisher, 690 P.2d 264 (Colo. App. 1984).

B. Judgment Notwithstanding the Verdict.

Law reviews. For article, “Colorado Criminal Procedure — Does It Meet Minimum Standards?”, see 28 Dicta 14 (1951).

This rule provides the method for securing a judgment “non obstante veredicto” when a motion for a directed verdict has been properly requested. Grange Mut. Fire Ins. Co. v. Golden Gas Co., 133 Colo. 537, 298 P.2d 950 (1956).

This rule adds nothing of substance to the rights of litigants previously available through a more cumbersome procedure. Burenheide v. Wall, 131 Colo. 371, 281 P.2d 1000 (1955).

The reason underlying this rule is that an opportunity should be given a trial court to reexamine, as a matter of law, the facts which have been considered and resolved by a jury. Ross v. Arrow Mfg. Co., 134 Colo. 530, 307 P.2d 196 (1957).

Motion for directed verdict must be made at conclusion of evidence. In actions where the issues are submitted to a jury for determination, it is an essential prerequisite to the right of either party to file a motion for judgment notwithstanding the verdict that a motion for directed verdict shall have been made at the conclusion of all the evidence. Ross v. Arrow Mfg. Co., 134 Colo. 530, 307 P.2d 196 (1957).

This rule does not compel a party against whom a verdict is directed to make a motion for a directed verdict in his favor as a condition to the right to file a motion for judgment notwithstanding the verdict, since a verdict having been directed by the court, the reason for the requirement no longer exists. Ross v. Arrow Mfg. Co., 134 Colo. 530, 307 P.2d 196 (1957).

Where a motion to dismiss is interposed at the conclusion of all the evidence and after verdict and judgment a motion for a new trial is filed, one of the grounds thereof being that a court erred in denying the motion to dismiss made at the conclusion of all the evidence, such motion is sufficient to authorize a trial court to enter judgment for a defendant notwithstanding the verdict. Mountain States Mixed Feed Co. v. Ford, 140 Colo. 224, 343 P.2d 828 (1959).

For a court to set aside a verdict as against the weight of evidence, the evidence may be merely insufficient in fact and it may be either insufficient in law or it may have more weight and not enough to justify the court in exercising the control which the law gives it to prevent unjust verdicts to allow a verdict to stand. Gossard v. Watson, 122 Colo. 271, 221 P.2d 353 (1950); Singer v. Chitwood, 126 Colo. 173, 247 P.2d 905 (1952).

This rule does not allow for a belated disturbance of a jury’s finding on the facts when a reservation has been made to determine law questions only. Wallower v. Elder, 126 Colo. 109, 247 P.2d 682 (1952).

Filing a motion for judgment notwithstanding the verdict within 10 days after receipt of the verdict is mandatory. Ross v. Arrow Mfg. Co., 134 Colo. 530, 307 P.2d 196 (1957).

Unless such motion is filed within that time, a court has no power to pass on it. Ross v. Arrow Mfg. Co., 134 Colo. 530, 307 P.2d 196 (1957); Arrow Mfg. Co. v. Ross, 141 Colo. 1, 346 P.2d 305 (1959).

Appellate court forbidden to enter judgment. In the absence of a motion for judgment notwithstanding the verdict made in the trial court within 10 days after reception of a verdict, the rule forbids the trial judge or an appellate court to enter such a judgment. Mero v. Holly Hudson Motor Co., 129 Colo. 282, 269 P.2d 698 (1954).

Standard for granting judgment n.o.v. A jury’s verdict can be set aside and judgment notwithstanding the verdict entered only if the evidence is such that reasonable men could not reach the same conclusion as the jury. Thorpe v. Durango Sch. Dist. No. 9-R, 41 Colo. App. 473, 591 P.2d 1329 (1978), aff’d, 200 Colo. 268, 614 P.2d 880 (1980); Wesley v. United Servs. Auto Ass’n, 694 P.2d 855 (Colo. App. 1984); Smith v. Denver, 726 P.2d 1125 (Colo. 1986); Alzado v. Blinder, Robinson & Co., Inc., 752 P.2d 544 (Colo. 1988); Nelson v. Hammond, 802 P.2d 452 (Colo. 1990); McCafferty v. Musat, 817 P.2d 1039 (Colo. App. 1990).

When order enlarging time to file motion for judgment n.o.v. permissible. Although C.R.C.P. 6(b) expressly limits a trial court’s ability to extend a time for acting under section (b) of this rule, there is an exception to that limitation where a party reasonably relies and acts upon an erroneous or misleading statement of ruling by a trial court regarding the time for filing post-trial motions. Converse v. Zinke, 635 P.2d 882 (Colo. 1981).

Motion for judgment “non abstante” is wholly separate and distinct from motion for new trial and does not take the place of one. Ross v. Arrow Mfg. Co., 134 Colo. 530, 307 P.2d 196 (1957).

A motion for a new trial may be joined with a motion for judgment “non abstante” or a new trial may be prayed in the alternative. Ross v. Arrow Mfg. Co., 134 Colo. 530, 307 P.2d 196 (1957).

Granting a motion for judgment n.o.v. does not effect an automatic denial of an alternative motion for a new trial. Grange Mut. Fire Ins. Co. v. Golden Gas Co., 133 Colo. 537, 298 P.2d 950 (1956).

The standard for granting a motion for judgment notwithstanding the verdict is complicated when statutory presumptions exist. Such presumptions may be rebutted only by clear and convincing evidence that persuades the finder of fact that the truth of the contention is highly probable and free from serious and substantial doubt. People in Interest of M.C., 844 P.2d 1313 (Colo. App. 1992).

This rule contemplates that either party to an action is entitled to the trial judge’s decision on both motions, if both are presented. Ross v. Arrow Mfg. Co., 134 Colo. 530, 307 P.2d 196 (1957).

Ruling on both should be made at same time. Where a motion for judgment notwithstanding the verdict or in the alternative for a new trial is filed under this rule, a trial court should make a ruling on both phases of the motion at the same time. Grange Mut. Fire Ins. Co. v. Golden Gas Co., 133 Colo. 537, 298 P.2d 950 (1956).

If a trial court errs in granting the motion n.o.v., the party against whom the verdict goes is entitled to have his motion for a new trial considered in respect of asserted substantial trial errors and matters appealing to the discretion of the judge. Ross v. Arrow Mfg. Co., 134 Colo. 530, 307 P.2d 196 (1957).

The cause will be remanded for a ruling on such motion. Where a motion for judgment notwithstanding the verdict or in the alternative for a new trial is filed, and the court erroneously grants the motion for judgment, leaving the motion for a new trial undecided, the cause will be remanded for a ruling on such motion. Ross v. Arrow Mfg. Co., 134 Colo. 530, 307 P.2d 196 (1957).

A decision in favor of the moving party upon the motion for judgment ends the litigation and often makes it possible for an appellate court to dispose of the case without remanding it for a new trial. Ross v. Arrow Mfg. Co., 134 Colo. 530, 307 P.2d 196 (1957).

If a trial court, in reviewing and examining the facts, is dissatisfied with the verdict because it is against the weight, sufficiency, or preponderance of the evidence, it may, under certain limitations, set the same aside and grant a new trial so that the issues of fact may ultimately be determined. Burenheide v. Wall, 131 Colo. 371, 281 P.2d 1000 (1955).

In ruling on motion for judgment notwithstanding the verdict, the court must determine whether a reasonable person could not have reached the same conclusion as did the jury and, in making such determination, the court cannot consider the weight of the evidence or the credibility of the witnesses and must consider the evidence in the light most favorable to the verdict. People in Interest of T.R.W., 759 P.2d 768 (Colo. App. 1988); Tuttle v. ANR Freight Sys., Inc., 797 P.2d 825 (Colo. App. 1990); Durdin v. Cheyenne Mountain Bank, 98 P.3d 899 (Colo. App. 2004).

A judgment notwithstanding the verdict may be entered only if a reasonable person could not reach the same conclusion as the jury, when viewing the evidence in the light most favorable to the party against whom the motion is directed. Every reasonable inference that may be drawn from the evidence must be drawn in favor of the non-moving party. Boulder Valley Sch. Dist. R-2 v. Price, 805 P.2d 1085 (Colo. 1991).

In passing upon such motions, a trial judge is necessarily required to weigh the evidence, so that he may determine whether the verdict was one which might reasonably have been reached. Singer v. Chitwood, 126 Colo. 173, 247 P.2d 905 (1952).

The trial judge has discretion to grant a new trial before another jury if he thinks the verdict is wrong, though there be some evidence to support it, and his action is generally not subject to review on appeal. Burenheide v. Wall, 131 Colo. 371, 281 P.2d 1000 (1955).

The trial court did not view the evidence presented in appellant’s favor and thereby misapplied the standard for granting a judgment notwithstanding the verdict. People in Interest of M.C., 844 P.2d 1313 (Colo. App. 1992).

Applied in Alden Sign Co. v. Roblee, 121 Colo. 432, 217 P.2d 867 (1950); Farmer v. Norm “Fair Trade” Stamp, Inc., 164 Colo. 156, 433 P.2d 490, 36 A.L.R.3d 232 (1967); DeCaire v. Pub. Serv. Co., 173 Colo. 402, 479 P.2d 964 (1971); Wheller & Lewis v. Slifer, 195 Colo. 291, 577 P.2d 1092 (1978); Thorpe v. Durango Sch. Dist. No. 9-R, 41 Colo. App. 473, 591 P.2d 1329 (1978).

C. Amendment of Judgment.

Section (e) (now (a)) requires that a motion to alter or amend must be filed within 10 (now 15) days after entry of judgment. Vanadium Corp. of Am. v. Wesco Stores Co., 135 Colo. 77, 308 P.2d 1011 (1957).

(Former) section (e) of this rule provides for the filing of a motion to alter or amend a judgment, which is the motion that is referred to in (former) section (f) of this rule, and it is not to be confused with a (former) C.R.C.P. 52(b) motion to amend the findings. Austin v. Coll./Univ. Ins. Co. of Am., 30 Colo. App. 502, 495 P.2d 1162 (1972).

When trial court amends pursuant to a motion, original judgment is not final. Section (e) (now (a)) of this rule specifies that a party may move to alter or amend a judgment by a motion filed not later than 10 (now 15) days after entry of judgment. Appellee filed such a motion within the allotted time, and the trial court subsequently did amend its judgment pursuant to such motion and the supplemental motion. Under these circumstances, the original trial court’s judgment never became final. It was not enforceable by either divorced party with respect to his or her property rights. It did not create an enforceable right either in the husband or in his estate to take a divided share of the joint tenancy property. Sarno v. Sarno, 28 Colo. App. 598, 478 P.2d 711 (1970).

A judgment amended to comply with a motion therefor is the only judgment to which a writ of error will lie. Green v. Jones, 134 Colo. 208, 304 P.2d 901 (1956).

C.R.C.P. 6(b) divests the court of jurisdiction to extend the time for taking action under C.R.C.P. 6(b). Vanadium Corp. of Am. v. Wesco Stores Co., 135 Colo. 77, 308 P.2d 1011 (1957).

C.R.C.P. 6(b), gives trial court wide latitude in extending 10-day (now 15-day) period of section (e) (now (a)). Farmer v. Norm “Fair Trade” Stamp, Inc., 164 Colo. 156, 433 P.2d 490 (1967).

Memorandum brief must be filed with motion. The rule requiring a short memorandum brief to be filed with a motion for new trial applies equally to a motion to alter or amend the judgment. Zehnder v. Thirteenth Judicial Dist. Court, 193 Colo. 502, 568 P.2d 457 (1977) (decided before 1985 amendment).

Court loses jurisdiction to hear plaintiff’s application for attorney’s fees if the plaintiff fails to file a motion to amend the judgment within 15 days. Wesson v. Johnson, 622 P.2d 104 (Colo. App. 1980).

Omission of order for costs indicates no allowance of costs. As determined by the court entering judgment, the omission of an order relating to costs constitutes a direction by it that no costs, including attorney fees, are allowed. Wesson v. Johnson, 622 P.2d 104 (Colo. App. 1980).

Appellants barred on appeal from asserting error by trial court. Where, after two cases were tried and the parties’ rights and obligations were determined by partial summary judgments which were not made final judgments under C.R.C.P. 54(b), appellants could have, and indeed should have, moved for a new trial or an altered or amended judgment under this rule and where they did not timely file such motions and allow the trial court an opportunity to review its possible errors, appellants were barred on appeal from asserting error by the trial court. Manka v. Martin, 200 Colo. 260, 614 P.2d 875 (1980), cert. denied, 450 U.S. 913, 101 S. Ct. 1354, 67 L. Ed. 2d 338 (1981).

Repeated assurances by the court clerk that the defendant’s motion to alter and amend the judgment had been forwarded to the presiding judge when, in fact, no notification of said motion had been given to the judge did not constitute an “extreme situation” allowing relief under C.R.C.P. 60(b)(5). Sandoval v. Trinidad Area Health Ass’n, 752 P.2d 1062 (Colo. App. 1988).

Court properly denied motion to amend judgment in malpractice claim against attorney as defendant is not entitled to set-off fees which would otherwise have been collected from original action. McCafferty v. Musat, 817 P.2d 1039 (Colo. App. 1990).

Where notice of entry of judgment is mailed to only one party in contravention of C.R.C.P. 58(a), the time provided by section (a) of this rule for filing a post-trial motion commences from the date that the notice is mailed by that party to the party subsequently moving for post-trial relief. Padilla v. D.E. Frey & Co., Inc., 939 P.2d 475 (Colo. App. 1997).

Trial court’s property division in dissolution of marriage action reflects no abuse of discretion based on husband’s economic circumstances, the characterization of property as marital or separate, or wife’s depletion of marital property, where trial court did its best in dividing marital property based only on wife’s evidence since husband elected not to participate in the action. In re Eisenhuth, 976 P.2d 896 (Colo. App. 1999).

Applied in Hughes v. Worth, 162 Colo. 429, 427 P.2d 327 (1967); Bittle v. CAM-Colo., LLC, 2012 COA 93, 318 P.3d 65.

III. ON INITIATIVE OF COURT.

The trial court has an immemorial right to grant a new trial whenever, in its opinion, the justice of the particular case so requires. Brncic v. Metz, 28 Colo. App. 204, 471 P.2d 618 (1970).

New trials are not abridged or disfavored by the new rules. The judge may even grant one on his own initiative without a motion. Singer v. Chitwood, 126 Colo. 173, 247 P.2d 905 (1952).

Judge may grant new trial even if party’s motion is insufficient. Where plaintiffs filed a motion for new trial in apt time on the ground of an erroneous instruction to the jury, the fact that the court granted a new trial on a portion of motion which correctly stated the law and hence was insufficient to justify granting the new trial did not support claim that the court erroneously acted upon its own initiative under this rule where the instruction was patently erroneous in other respects. Callaham v. Slavsky, 153 Colo. 291, 385 P.2d 674 (1963).

C.R.C.P. 51, does not apply to trial court when it sua sponte grants new trial. The purposes of the contemporaneous objection requirement of C.R.C.P. 51 are not violated when the trial court acts on its own initiative to order a new trial under this rule. First Nat’l Bank v. Campbell, 198 Colo. 344, 599 P.2d 915 (1979).

Where status of minor children at stake, court remanded for findings. While a motion may fail to comply strictly with the requirements of this rule when the status of minor children is at stake, a court of appeals will notice error in the trial court proceedings and remand for findings. In re Brown, 626 P.2d 755 (Colo. App. 1981).

An order enlarging the time within which to file a motion for judgment n.o.v. is without effect in view of the provisions of C.R.C.P. 6(b). Mumm v. Adam, 134 Colo. 493, 307 P.2d 797 (1957).

C.R.C.P. 6(b) provides that a court may not extend the time for taking any action under this rule. Ross v. Arrow Mfg. Co., 134 Colo. 530, 307 P.2d 196 (1957).

District court exceeded its jurisdiction by ordering, sua sponte, a new trial on all the issues of marriage dissolution proceeding because the district court acted outside its time limits mandated by section (c) of this rule to initiate such post-trial relief and failed to state adequate grounds for a new trial as required by said rule. Koch v. District Court, Jefferson County, 948 P.2d 4 (Colo. 1997).

IV. GROUNDS FOR NEW TRIAL.

A. In General.

Annotator’s note. Since former section (a)(1) (now (d)(1)) of this rule is similar to § 237 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule.

Use of “shall” in section (a). Prior to 1985, former section (a) of this rule specified that the memorandum brief “shall be filed with the motion”. There is a presumption that the word “shall” when used in a statute or rule is mandatory. Anlauf Lumber Co. v. West-Fir Studs, Inc., 35 Colo. App. 119, 531 P.2d 980 (1974), aff’d, 190 Colo. 298, 546 P.2d 487 (1976) (decided prior to the 1985 amendment).

This rule specifies that an application for new trial, under certain circumstances, “shall be supported by affidavit”, and there is a presumption that the word “shall” when used in a statute or rule is mandatory. Park Stations, Inc., v. Hamilton, 38 Colo. App. 216, 554 P.2d 311 (1976); In re Fleet, 701 P.2d 1245 (Colo. App. 1985).

Notwithstanding the affidavit requirement in section (d) of this rule, C.R.E. 606(b) acts to preclude juror affidavits as a basis for seeking post-trial relief, unless the exceptions in that rule apply. Stewart v. Rice, 47 P.3d 316 (Colo. 2002).

Issues must be preserved for consideration on appeal. Where a party fails to preserve issues for review in his motion for a new trial or in his motion to amend judgment, the court will not consider them on appeal. Hawkins v. Powers, 635 P.2d 915 (Colo. App. 1981).

Court not required to act in absence of affidavit. Upon receipt of a motion for a new trial on those grounds which, according to the rules, must be supported by affidavit, the court is not required to act in the absence of such affidavit. Park Stations, Inc., v. Hamilton, 38 Colo. App. 216, 554 P.2d 311 (1976).

A motion to alter or amend judgment, or for new trial, does not in itself amount to a memorandum brief. Zehnder v. Thirteenth Judicial Dist. Court, 193 Colo. 502, 568 P.2d 457 (1977) (decided prior to the 1985 amendment).

Where events forming the basis for the granting of a new trial occurred in the presence of the court and during the trial, the trial judge obviously had sufficient first hand knowledge to determine whether there was adequate ground for a new trial under this rule, and, under such circumstances, the absence of an affidavit does not deprive the court of the power to grant relief. Park Stations, Inc. v. Hamilton, 38 Colo. App. 216, 554 P.2d 311 (1976).

Where a motion for a new trial is based on misconduct of counsel which occurred in the presence of the court, the court may act upon and grant such motion even if no affidavit is submitted. Park Stations, Inc. v. Hamilton, 38 Colo. App. 216, 554 P.2d 311 (1976).

New trial may be granted upon misconduct of counsel. The granting of a new trial may be founded upon counsel’s misstatements of fact, or on his statements of fact which have not been introduced in or established by evidence, or on a finding that counsel has made a statement or argument appealing to the emotions and prejudices of the jury. Park Stations, Inc. v. Hamilton, 38 Colo. App. 216, 554 P.2d 311 (1976).

A new trial is not granted for misconduct of counsel as a disciplinary measure, but to prevent a miscarriage of justice. Park Stations, Inc. v. Hamilton, 38 Colo. App. 216, 554 P.2d 311 (1976).

Fact that the court found defendant’s counsel to be guilty of misconduct during the course of the trial for more reasons than those alleged by plaintiff does not put the court in the position of acting on its own initiative in granting motion for new trial. Park Stations, Inc. v. Hamilton, 38 Colo. App. 216, 554 P.2d 311 (1976).

Filing of motion tolls time for filing notice of appeal. The filing of a motion to alter or amend a judgment tolls the running of the time for filing notice of appeal. Valenzuela v. Mercy Hosp., 34 Colo. App. 5, 521 P.2d 1287 (1974).

Affidavit filed after time allowed is not to be considered. An affidavit filed in support of a motion for a new trial without leave of the court, and after the time limited by a previous order, is not to be considered. Denver & R. G. R. R. v. Heckman, 45 Colo. 470, 101 P. 976 (1909).

Sufficiency of affidavit required. An affidavit merely stating what the opposing counsel had directed his client to do, but not showing that in fact anything was done pursuant to the direction, is insufficient to convict the party of misconduct. Denver & R. G. R. R. v. Heckman, 45 Colo. 470, 101 P. 976 (1909).

The requirement of an affidavit presupposes that the affiant has firsthand information rather than possessing only hearsay. Hansen v. Dillon, 156 Colo. 396, 400 P.2d 201 (1965).

The reception of oral testimony at the time the motion for new trial is under consideration is a matter within the discretion of the trial court. The record in the instant case does not suggest an abuse of this discretion. Burnham v. Grant, 24 Colo. App. 131, 134 P. 254 (1913).

Hearsay and conclusory allegations are insufficient under rule. Peoples Natural Gas Div. v. Pub. Utils. Comm’n, 626 P.2d 159 (Colo. 1981).

B. Irregularity in Proceedings.

Ruling on motion for new trial on ground of misconduct of witness is within discretion of trial court. Hicks v. Cramer, 85 Colo. 409, 277 P. 299 (1929); Simon v. Williams, 123 Colo. 505, 232 P.2d 181 (1951).

Ruling will not be disturbed in absence of showing that the court’s discretion was abused. Hicks v. Cramer, 85 Colo. 409, 277 P. 299 (1929).

For when discretion is allowed, see Simon v. Williams, 123 Colo. 505, 232 P.2d 181 (1951).

The finding of the court cannot be disturbed unless it was manifestly against the weight of the testimony. Liutz v. Denver City Tramway Co., 54 Colo. 371, 131 P. 258 (1913).

Objection on ground of misconduct of witness must be made before verdict. A party to a trial who, although knowing of apparent misconduct on the part of a witness, remains silent until after the verdict has gone against him, may not then assign such misconduct as a ground for a new trial. Hicks v. Cramer, 85 Colo. 409, 277 P. 299 (1929).

Conduct of witness held insufficient to warrant reversal. The fact that a witness was seen in conversation with a juror during a recess of the court, is insufficient to warrant a reversal of the judgment, where there was nothing to indicate any attempt to influence the juror. Hicks v. Cramer, 85 Colo. 409, 277 P. 299 (1929).

Giving cigars to jurors after verdict is not grounds for new trial. The fact that the attorney of the successful party treated four of the jurors to cigars, after the verdict, merely in a way of civility, and without any design or forethought, held no ground to vacate the verdict, though the court suggested that, upon ethical grounds the act of the attorney was indiscreet. Liutz v. Denver City Tramway Co., 54 Colo. 371, 131 P. 258 (1913).

Improper remarks by employees of a party to jury may be grounds for new trial. If persons employed by a suitor hang about the purlieus of the court, mingle with those summoned as jurors, converse with them touching causes in which the suitor is concerned, and by flattery, ridicule, and like insidious means, endeavor to improperly influence them, a verdict shown to have been influenced by such practices should be unhesitatingly vacated. Liutz v. Denver City Tramway Co., 54 Colo. 371, 131 P. 258 (1913).

Improper remarks to jurors which manifestly had no effect upon their deliberations are not ground for a new trial. Liutz v. Denver City Tramway Co., 54 Colo. 371, 131 P. 258 (1913).

Seeing of excluded exhibit by jury may be grounds for new trial. A mistake or inadvertence whereby the jury was permitted to have access to an exhibit which had been excluded from consideration was an irregularity in the proceedings, and under the provisions of this rule, the proper method of presenting it in a motion for a new trial is to support and file an affidavit with the motion. Maloy v. Griffith, 125 Colo. 85, 240 P.2d 923 (1952).

If trial court instructs jury on improper closing remarks, there are no grounds for new trial. Where remarks in closing argument are improper but the trial court immediately and subsequently properly instructs, the reviewing court must presume that the jury followed the trial court’s instructions, such not constituting grounds for new trial. Candelaria v. People, 177 Colo. 136, 493 P.2d 355 (1972).

Denial of a motion for a continuance because of the unavoidable absence of a party during litigation is grounds for the granting of a new trial because the attendance of a litigant is necessary for a fair presentation of his case. Gonzales v. Harris, 189 Colo. 518, 542 P.2d 842 (1975).

For deficiency in trial record which requires reversal of judgment but not new trial, see Moore v. Fischer, 31 Colo. App. 425, 505 P.2d 383 (1972), aff’d, 183 Colo. 392, 517 P.2d 458 (1973).

No relief under this rule for malpractice of party’s own attorney. In re Jaeger, 883 P.2d 577 (Colo. App. 1994).

Untimely filing of motion contending irregularity in proceedings fails because the court was deprived of jurisdiction after the time allowed by section (a) had run. When plaintiff did not argue that the trial court erred in ruling her motion under this rule was untimely, she was considered to have abandoned the issue of timeliness. In re McSoud, 131 P.3d 1208 (Colo. App. 2006).

C. Misconduct of Jury. Annotator’s note. Since section (a)(2) (now (d)(2)) of this rule is similar to § 237 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule.

Disposition of motion is within discretion of trial court. Disposition of a motion for a new trial based on the ground of misconduct of jurors is within the sound discretion of the trial court. Denver Alfalfa Milling & Prods. Co. v. Erickson, 77 Colo. 583, 239 P. 17 (1925).

Verdict set aside where misconduct revealed. Jury verdict will be set aside when juror’s affidavit revealed certain misconduct on the part of one or more of the jurors. Santilli v. Pueblo, 184 Colo. 432, 521 P.2d 170 (1974).

Ruling on motion will not be disturbed on review, unless the discretion has been abused or the ruling is manifestly against the weight of the evidence. Denver Alfalfa Milling & Prods. Co. v. Erickson, 77 Colo. 583, 239 P. 17 (1925).

Test of misconduct is capacity of influencing result. The test for determining whether a new trial will be granted because of the misconduct of jurors or the intrusion of irregular influences is whether such matters could have a tendency to influence the jury in arriving at its verdict in a manner inconsistent with the legal proofs and the court’s charge. If the irregular matter has that tendency on the face of it, a new trial should be granted without further inquiry as to its actual effect. The test is not whether the irregular matter actually influenced the result, but whether it had the capacity of doing so. Butters v. Wann, 147 Colo. 352, 363 P.2d 494 (1961); T.S. v. G.G., 679 P.2d 118 (Colo. App. 1984); People v. Wadle, 77 P.3d 764 (Colo. App. 2003), aff’d, 97 P.3d 932 (Colo. 2004).

Sympathy for a plaintiff’s injured condition is not tantamount to the passion or prejudice necessary to overturn a jury verdict. Whitlock v. Univ. of Denver, 712 P.2d 1072 (Colo. App. 1985), rev’d on other grounds, 744 P.2d 54 (Colo. 1987).

Test is determined as a matter of law. It is not the province of the court to speculate, conjecture or determine what or how much effect upon a verdict the gross misconduct of a juror or jurors may in fact have in a particular case. While a correct determination might be possible in some cases, the inquiry would be impractical and fruitless in many cases and in all cases contain an element of speculation. The proper function of the court is to hear the facts of the alleged misconduct and to determine as a matter of law the effect reasonably calculated to be produced upon the minds of the jury by such misconduct. Butters v. Wann, 147 Colo. 352, 363 P.2d 494 (1961); People v. Wadle, 77 P.3d 764 (Colo. App. 2003), aff’d, 97 P.3d 932 (Colo. 2004).

A new trial on all issues, not the granting of remittitur of the verdict, must be ordered when a trial court makes a finding that an excessive jury verdict resulted from bias, prejudice, or passion. Whitlock v. Univ. of Denver, 712 P.2d 1072 (Colo. App. 1985), rev’d on other grounds, 744 P.2d 54 (Colo. 1987).

Movant seeking to set aside verdict based upon jury misconduct must establish fact of improper communication and as a result thereof the movant was prejudiced. Ravin v. Gambrell by and through Eddy, 788 P.2d 817 (Colo. 1990).

A party seeking a new trial on the basis of a jury’s improper exposure to extraneous information must establish that the information was revealed to the jury and that it had the capacity to influence the verdict. Destination Travel, Inc. v. McElhanon, 799 P.2d 454 (Colo. App. 1992); Stevens v. Humana of Delaware, Inc., 832 P.2d 1076 (Colo. App. 1992).

Misconduct of a juror, if known to counsel, should be made the ground of objection at the time, and before the cause is submitted. If first suggested in the motion for a new trial it is within the discretion of the court to disregard it. Denver City Tramway Co. v. Armstrong, 21 Colo. App. 640, 123 P. 136 (1912).

The reason for a supporting affidavit where there is an accusation of juror misconduct is to require the movant to prove his good faith and, by particularizing, demonstrate that his serious allegation of juror misconduct is based on knowledge, not suspicion or mere hope. Cawthra v. City of Greeley, 154 Colo. 483, 391 P.2d 876 (1964).

Motion unsupported by affidavit denied summarily. A motion for new trial based on alleged juror misconduct unsupported by affidavit, and lacking any indication that the movant had a legal excuse for its failure to do so, should be summarily denied. Cawthra v. City of Greeley, 154 Colo. 485, 391 P.2d 876 (1964); Hansen v. Dillon, 156 Colo. 396, 400 P.2d 201 (1965).

Juror affidavit revealing that some jury members had stated that they had learned of codefendant’s plea of guilty was insufficient to impeach jury verdict when it was determined from questioning jurors that they learned of plea only after completion of their deliberations. People v. Thornton, 712 P.2d 1095 (Colo. App. 1985).

Only the affidavit of losing counsel, and itself largely hearsay and conclusionary, is insufficient. Hansen v. Dillon, 156 Colo. 396, 400 P.2d 201 (1965).

A quotient verdict as such is invalid. A quotient verdict, as such, is invalid, but where there is no antecedent agreement, or if after the quotient is ascertained, the jury proceeds to discuss and consider the propriety of the rendition of a verdict for an amount equal to the quotient, the verdict is good. City of Colo. Springs v. Duff, 15 Colo. App. 437, 62 P. 959 (1900); City & County of Denver v. Talarico, 99 Colo. 178, 61 P.2d 1 (1936).

Quotient verdict will be permitted to stand if it is an expression of deliberation. Quotient verdict, shown to have been afterwards voted upon and accepted by the jury as a legitimate expression of their deliberations, will be permitted to stand upon a showing of very little proof in this direction. Pawnee Ditch & Imp. Co. v. Adams, 1 Colo. App. 250, 28 P. 662 (1891); Greeley Irrigation Co. v. Von Trotha, 48 Colo. 12, 108 P. 985 (1910).

Impeachment of a verdict on grounds which delve into the mental processes of the jury deliberation is not permitted. Santilli v. Pueblo, 184 Colo. 432, 521 P.2d 170 (1974); Rome v. Gaffrey, 654 P.2d 333 (Colo. App. 1982).

Extrajudicial investigation on inadmissible matters was manifestly improper. The question of the deceased’s contributory negligence and his intoxication at the time of the accident was material. The extrajudicial investigation made during the course of the trial by the juror of the deceased’s drinking habits, intoxication on other occasions, and the revocation of his driver’s license, matters which had been specifically declared incompetent and inadmissible by the court, is misconduct as a matter of law the tendency of which is to influence the mind of the juror and for which a new trial should have been granted. In such cases the court should not consider whether the verdict was or was not influenced by the petitioner. The conduct complained of is so manifestly improper that there is but one course open. Butters v. Wann, 147 Colo. 352, 363 P.2d 494 (1961).

A new trial is not automatically required whenever a jury is exposed to extraneous information during trial or deliberations. Stevens v. Humana of Delaware, Inc., 832 P.2d 1076 (Colo. App. 1992).

Extraneous information concerning the symptoms of a disease listed on a grocery bag obtained by a juror did not require a new trial. Stevens v. Humana of Delaware, Inc., 832 P.2d 1076 (Colo. App. 1992).

D. Accident or Surprise.

Annotator’s note. Since section (a)(3) (now (d)(3)) of this rule is similar to § 237 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule.

Surprise must be called to attention of court at trial. A party cannot avail himself of a motion for a new trial on the ground of surprise unless he calls the attention of the court to the matter at the time when it occurs and asks for proper relief. It is too late for him to manifest his surprise for the first time after the cause has been submitted to the jury and a verdict rendered against him. Outcalt v. Johnston, 9 Colo. App. 519, 49 P. 1058 (1897); Agnew v. Mathieson, 26 Colo. App. 59, 140 P. 484 (1914).

Untimely filing of motion contending “accident or surprise” fails because the court was deprived of jurisdiction after the time allowed by section (a) had run. When plaintiff did not argue that the trial court erred in ruling her motion under this rule was untimely, she was considered to have abandoned the issue of timeliness. In re McSoud, 131 P.3d 1208 (Colo. App. 2006).

E. Newly Discovered Evidence.

Annotator’s note. Since section (a)(4) (now (d)(4)) of this rule is similar to § 237 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule.

Motions for new trial on ground of newly discovered evidence are viewed with suspicion. Sebold v. Rieger, 26 Colo. App. 209, 142 P. 201 (1914); Eachus v. People, 77 Colo. 445, 236 P. 1009 (1925); Gasper v. People, 83 Colo. 341, 265 P. 97 (1928).

Granting of new trial is a matter of trial court’s discretion. Whether to grant a new trial because of newly discovered evidence is a matter that lies within the sound discretion of the trial court. Am. Nat’l Bank v. Christensen, 28 Colo. App. 501, 476 P.2d 281 (1970); Meyer v. Schwartz, 638 P.2d 821 (Colo. App. 1981).

In the absence of abuse of discretion the judge’s decision on the merits of a motion for new trial will not be disturbed. Bushner v. Bushner, 141 Colo. 283, 348 P.2d 153 (1959); Hudson v. Am. Founders Life Ins. Co., 151 Colo. 54, 377 P.2d 391 (1962).

New trial is to be granted only if the newly discovered evidence, if received, would probably change the result. Crespin v. Largo Corp., 698 P.2d 826 (Colo. App. 1984), aff’d, 727 P.2d 1098 (Colo. 1986).

The following requirements are essential to sustain a motion for new trial on the grounds of newly discovered evidence: (1) The evidence could not have been discovered in the exercise of reasonable diligence and produced at the trial; (2) the evidence is material to some issue before the court under the pleadings; (3) if received, the evidence would probably change the result. Kennedy v. Bailey, 169 Colo. 43, 453 P.2d 808 (1969); Am. Nat’l Bank v. Christensen, 28 Colo. App. 501, 476 P.2d 281 (1970); C.K.A. v. M.S., 695 P.2d 785 (Colo. App. 1984), cert. denied, 705 P.2d 1391 (Colo. 1985); Durbin v. Bonanza Corp., 716 P.2d 1124 (Colo. App. 1986); People v. Distel, 759 P.2d 654 (Colo. 1988).

Three factors affecting decision under section (d)(4), as adopted in cases interpreting this rule, are not discrete items that lend themselves to mechanistic application, but rather are closely interrelated and require the exercise of a prudential judgment informed by considerations of fundamental fairness. Aspen Skiing Co. v. Peer, 804 P.2d 166 (Colo. 1991).

For necessity of evidence being sufficient to change result, see Colo. Springs & Interurban Ry. v. Fogelsong, 42 Colo. 341, 94 P. 356 (1908); Specie Payment Gold Mining Co. v. Kirk, 56 Colo. 275, 139 P. 21 (1914); Lanham v. Copeland, 66 Colo. 27, 178 P. 562 (1919); Wiley v. People, 71 Colo. 449, 207 P. 478 (1922); Eachus v. People, 77 Colo. 445, 236 P. 1009 (1925); Heishman v. Hope, 79 Colo. 1, 242 P. 782 (1925); Warshauer Sheep & Wool Co. v. Rio Grande State Bank, 81 Colo. 463, 256 P. 21 (1927); Trinidad Creamery Co. v. McDonald, 82 Colo. 328, 259 P. 1028 (1927); City of Ft. Collins v. Smith, 84 Colo. 511, 272 P. 6 (1928); Schlessman v. Brainard, 104 Colo. 514, 92 P.2d 749 (1939).

Party cannot reframe issues where facts were known at time of trial. No issue of mental competency was raised in the probate court during the trial of this action, despite the fact that counsel for plaintiffs were aware of the fact that an issue of competency had been raised in the federal court and could have been made in the probate court. In legal effect, the motions for new trial were insufficient and made no showing of the discovery of any new evidence which was pertinent to any issue tried in the probate court. Actually, the plaintiffs attempt to reframe the issues and inject into the proceedings a complete new theory upon which they elected not to rely at the time of the trial. Kennedy v. Bailey, 169 Colo. 43, 453 P.2d 808 (1969).

A motion for a new trial on the ground of newly discovered evidence will not be granted where counsel seeks to advance at a second trial a new theory based on different evidence which was available during the first trial. People in Interest of P.N., 663 P.2d 253 (Colo. 1983).

A new trial is not to be awarded for the discovery of evidence merely cumulative. Griffin v. Carrig, 23 Colo. App. 313, 128 P. 1126 (1913); Hudson v. Am. Founders Life Ins. Co., 151 Colo. 54, 377 P.2d 391 (1962).

It is error to grant a new trial on the ground of newly discovered evidence, when such evidence would be immaterial. Warshauer Sheep & Wool Co. v. Rio Grande State Bank, 81 Colo. 463, 256 P. 21 (1927).

Newly discovered evidence to justify the granting of a new trial must be relevant and material. Barton v. Laws, 4 Colo. App. 212, 35 P. 284 (1894).

New trial will not be granted for new evidence which is merely impeaching or discrediting. The general rule is that a new trial will not be granted for new evidence which is merely impeaching or discrediting. Hence, impeaching evidence which is merely cumulative of what might have been produced at the trial is not a sufficient ground for a new trial. Trinidad Creamery Co. v. McDonald, 82 Colo. 328, 259 P. 1028 (1927).

Denial of motion for new trial upheld where newly discovered evidence allegedly demonstrating that plaintiff perjured himself at trial could have been obtained through reasonable diligence more than two years prior to trial. Aspen Skiing Co. v. Peer, 804 P.2d 166 (Colo. 1991).

Denial of motion for new trial was proper where defendant was not denied access to her bank balance and account activity and could, therefore, have discovered the canceled checks showing payment of the disputed insurance premiums. CNA Ins. Co. v. Berndt, 839 P.2d 492 (Colo. App. 1992).

Application for new trial should be supported by affidavit. In an application for a new trial on the ground of newly discovered evidence, the application should be supported by an affidavit of the newly discovered witness, stating the facts to which he will testify, and if such affidavit is not attached to the application, there should be a showing that it was impossible or impracticable to secure the same. Wiley v. People, 71 Colo. 449, 207 P. 478 (1922).

Affidavit must show that by exercise of reasonable diligence such evidence could not have been produced. If it does not appear from the affidavits in support of a motion for new trial, on the ground of newly discovered evidence, that by the exercise of reasonable diligence such evidence could not have been produced at the trial, the showing is insufficient. Outcalt v. Johnston, 9 Colo. App. 519, 49 P. 1058 (1897).

The affidavits for a new trial on the ground of newly discovered evidence must show the efforts made by the applicant to locate the additional witnesses proposed to be examined, and must exclude all inference of delay or neglect on the part of the applicant. Evidence as to matters not controverted on the trial will not suffice. Sebold v. Rieger, 26 Colo. App. 209, 142 P. 201 (1914).

For denial of new trial because party made no effort to present evidence, see Sall v. Sall, 173 Colo. 464, 480 P.2d 576 (1971).

Where application is based upon the recent discovery of a document, a copy thereof should be set forth, or at least the substance of it shown; otherwise its pertinency as evidence does not appear. Colo. & S. Ry. v. Breniman, 22 Colo. App. 1, 125 P. 855 (1912).

The affidavit of counsel, based upon information and belief, of what a witness will testify is insufficient to secure a new trial on the ground of newly discovered evidence. Cole v. Thornburg, 4 Colo. App. 95, 34 P. 1013 (1893).

After reversal, initially successful party may move for new trial. After reversal by the supreme court the party originally successful in the trial court can file a motion for new trial on the ground of newly discovered evidence, and only on that ground. To hold otherwise would deprive a party of an absolute right he would have had if the trial judge had made no error. Bushner v. Bushner, 141 Colo. 283, 348 P.2d 153 (1959).

Where the contention is that perjury has been committed, the motion for a new trial must be grounded upon newly discovered evidence. Buchanan v. Burgess, 99 Colo. 307, 62 P.2d 465 (1936); Schlessman v. Brainard, 104 Colo. 514, 92 P.2d 749 (1939).

Motion for new trial held properly overruled. In an action for damages resulting from an automobile accident, the contention of defendant that a new trial should have been granted on the ground of newly discovered evidence was considered and overruled. Morgan v. Gore, 96 Colo. 508, 44 P.2d 918 (1935).

Newly discovered evidence must be credible. In order for newly discovered evidence to serve as a basis for granting a new trial, it must be credible. Crespin v. Largo Corp., 698 P.2d 826 (Colo. App. 1984), aff’d, 727 P.2d 1098 (Colo. 1986).

Although determining the credibility of a witness is normally the function of the trier of fact, when dealing with a motion for new trial based on newly discovered evidence, the trial court necessarily must include a determination of credibility in its evaluation of whether the new evidence would, if received, change the result already reached. Crespin v. Largo Corp., 698 P.2d 826 (Colo. App. 1984), aff’d, 727 P.2d 1098 (Colo. 1986).

Denial of motion for new trial upheld. Phillips v. Monarch Recreation Corp., 668 P.2d 982 (Colo. App. 1983); Gilmore v. Rubeck, 708 P.2d 486 (Colo. App. 1985).

Standards set forth in section (a)(4) (now (d)(4)) are not unduly rigorous when applied to evidence discovered after an order for summary judgment has been entered. DuBois v. Myers, 684 P.2d 940 (Colo. App. 1984).

F. Excessive or Inadequate Damages.

Annotator’s note. Since section (a)(5) (now (d)(5)) of this rule is similar to § 237 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule.

Excessive damages are legitimate grounds for granting a motion for new trial. Leo Payne Pontiac, Inc. v. Ratliff, 29 Colo. App. 386, 486 P.2d 477 (1971), modified, 178 Colo. 361, 497 P.2d 997 (1972).

Award of inadequate damages is a proper ground for the granting of a new trial. Roth v. Stark Lumber Co., 31 Colo. App. 121, 500 P.2d 145 (1972).

New trial may be had as to single issue of damages. Where damages assessed by verdict were grossly inadequate and there was no need of another trial on other issues raised in a negligence action, new trial would be granted as to damages only. Whiteside v. Harvey, 124 Colo. 561, 239 P.2d 989 (1951).

When an award of damages is excessive but liability is clear, it may be permissible to order a new trial limited to the issue of damages only. Marks v. District Court, 643 P.2d 741 (Colo.), cert. denied, 458 U.S. 1107, 102 S. Ct. 3486, 73 L. Ed. 2d 1368 (1982).

Excessive verdict based on bias requires new trial. Where the trial judge makes a finding that the excessive jury verdict resulted from bias, prejudice, and passion, firmly established precedent requires that a new trial on all issues be granted. Marks v. District Court, 643 P.2d 741 (Colo.), cert. denied, 458 U.S. 1107, 102 S. Ct. 3486, 73 L. Ed. 2d 1368 (1982).

Where the issue of liability is properly determined, but the jury has failed in its function adequately to assess the compensation required, it is mandatory that the court order a new trial on the issue of damages alone. Brncic v. Metz, 28 Colo. App. 204, 471 P.2d 618 (1970).

Court may order new trial on all issues where motion limited to damages. A party by moving for a new trial on the question of damages only cannot restrict the judge so as to prevent the exercise of sound judicial discretion. Dale v. Safeway Stores, Inc., 152 Colo. 581, 383 P.2d 795 (1963).

Where jury refuses to award compensatory damages, new trial on damages alone is warranted. Where the jury failed in its function in rendering a verdict by refusing to recognize the undisputed facts concerning plaintiff’s injuries and to award him compensatory damages to which he was entitled, a new trial on the issue of damages only is warranted. Kistler v. Halsey, 173 Colo. 540, 481 P.2d 722 (1971).

New trial on the issue of damages only is warranted when there are undisputed facts as to injuries. In an action by a bicyclist seeking damages for injuries suffered as a result of an intersection pickup truck-bicycle collision, where the verdict, considering the undisputed evidence of severe multiple physical injuries sustained by plaintiff, was manifestly inadequate, indicating that the jury disregarded the trial court’s instructions on damages, held a new trial on issue of damages only is warranted since the jury failed in its function to render a true verdict by refusing to recognize the undisputed facts concerning plaintiff’s injuries and to award him compensatory damages to which he was entitled. Kistler v. Halsey, 173 Colo. 540, 481 P.2d 722 (1971).

Plaintiff’s participation in new trial on damages alone waives other objections. Where plaintiffs, dissatisfied with verdict on first trial, file a motion for additur or a new trial on the question of damages only and the trial court grants a new trial on all issues, the plaintiffs by voluntarily participating in the second trial as ordered by the trial court waive any other error occurring in first trial. Dale v. Safeway Stores, Inc., 152 Colo. 581, 383 P.2d 795 (1963).

Verdict must be manifestly inadequate to be set aside. It is an abuse of discretion on the part of the court to set aside the verdict of the jury and grant a new trial solely on the ground of inadequacy of the verdict unless, under the evidence, it can be definitely said that the verdict is grossly and manifestly inadequate, or unless the amount thereof is so small as to clearly and definitely indicate that the jury neglected to take into consideration evidence of pecuniary loss or were influenced either by prejudice, passion or other improper considerations. Lehrer v. Lorenzen, 124 Colo. 17, 233 P.2d 382 (1951); King v. Avila, 127 Colo. 538, 259 P.2d 268 (1953); DeMott v. Smith, 29 Colo. App. 531, 486 P.2d 451 (1971).

Where plaintiff’s evidence showed damages considerably in excess of the original jury award and the trial court could properly determine that the jury disregarded the instructions or ignored the evidence, there is no error in granting a new trial on the issue of damages. Thorpe v. City & County of Denver, 30 Colo. App. 284, 494 P.2d 129 (1971).

Jury damage award set aside on basis of inadequacy when evidence was undisputed with respect to the existence and nature of the injuries sustained, and the jury failed to award any damages for noneconomic losses. Martinez v. Shapland, 833 P.2d 837 (Colo. App. 1992).

Retrial on damages only was ordered because of the inconsistency in the damage award of the jury. The award of $3,000 for economic losses for the treatment and alleviation of pain is inconsistent with the award of zero dollars for noneconomic damages. Kepley v. Kim, 843 P.2d 133 (Colo. App. 1992).

When a new trial will be granted for excessive or inadequate damages rests in the discretion of the trial court, in cases where there is no legal measure of damages, or where the correctness of the result is not determinable by any definite and precise rule. Clark v. Aldenhoven, 26 Colo. App. 501, 143 P. 267 (1914).

The court of review will not interfere where there is evidence to support the verdict. Clark v. Aldenhoven, 26 Colo. App. 501, 143 P. 267 (1914).

Neither the Colorado supreme court nor any other appellate tribunal stands in as good a position as the trial court to review the relationship between an award of exemplary damages and the purposes these damages are to serve and, absent a clear abuse of discretion, the trial court’s determination in this regard will not be disturbed on review. Leo Payne Pontiac, Inc. v. Ratliff, 178 Colo. 361, 497 P.2d 997 (1972).

Trial court may give prevailing party option to remit excessive damages. Following a motion for a new trial based on excessive damage, the trial judge may grant the motion for a new trial, but at the same time give the prevailing party the option of remitting that portion of the jury’s award which is deemed to be excessive, or facing a new trial on damages. If the prevailing party thereafter remits this portion of the award, the trial court would thereupon deny the motion for a new trial and enter a final judgment. Leo Payne Pontiac, Inc. v. Ratliff, 178 Colo. 361, 497 P.2d 997 (1972); McCrea & Co. Auctioneers, Inc. v. Dwyer Auto Body, 799 P.2d 394 (Colo. App. 1989).

A trial court has the power to grant a new trial under this rule or, in the alternative, to deny the new trial on the condition that the plaintiff will agree to a remittitur of the amount of the damages found by the court to be excessive. Marks v. District Court, 643 P.2d 741 (Colo.), cert. denied, 458 U.S. 1107, 102 S. Ct. 3486, 73 L. Ed. 2d 1368 (1982).

Option of remittitur or new trial permissible where damages manifestly excessive. The option of remittitur or new trial is permissible in cases where the trial court considers the damages manifestly excessive, section (a)(5) (now (d)(5)), but cannot conclude that the damages were a product of bias, prejudice, or passion. Burns v. McGraw-Hill Broadcasting Co., 659 P.2d 1351 (Colo. 1983); E-470 Pub. Hwy. Auth. v. Jagow, 30 P.3d 798 (Colo. App. 2001), aff’d, 49 P.3d 1151 (Colo. 2002).

Remittitur appropriate where evidence did not show that damages for fraud and those for breach of contract were separate and distinct, nor that damages for business interference were greater than or different from lost profits resulting from the breach. McCrea & Co. Auctioneers, Inc. v. Dwyer Auto Body, 799 P.2d 394 (Colo. App. 1989).

Remittitur is not sustainable where the amount of damages awarded is supported by the court’s instruction and the evidence presented or, alternatively, where the plaintiff is not offered an opportunity to refuse the modified amount and request a new trial. Belfor USA Group v. Rocky Mtn. Caulking & Waterproofing, 159 P.3d 672 (Colo. App. 2006).

Trial court must enter findings to support order of remittitur. Belfor USA Group v. Rocky Mtn. Caulking & Waterproofing, 159 P.3d 672 (Colo. App. 2006).

New trial granted where trial court erred in damages instruction. Walton v. Kolb, 31 Colo. App. 95, 500 P.2d 149 (1972).

G. Error in Law.

A judicial admission can be made in closing argument. Counsel’s statements that plaintiff had incurred some physical injury in the accident must be considered a binding judicial admission and a new trial ordered on the issue of damages. Larson v. A.T.S.I., 859 P.2d 273 (Colo. App. 1993).

V. GROUNDS FOR JUDGMENT NOTWITHSTANDING VERDICT.

Annotator’s note. Since section (a)(6) (now (e)(1)) of this rule is similar to § 237 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule.

The weight of evidence does not depend upon its volume or the number of witnesses. Jurors exercise a large discretion in judging of the credibility of witnesses, and separating the true from the false. Their conclusions will not be disturbed, unless the verdict manifests bias, prejudice, or a wanton disregard of their duties and obligation by the jurors. Clark v. Aldenhoven, 26 Colo. App. 501, 143 P. 267 (1914).

As a general rule, when the evidence is conflicting the trial court will refuse a new trial even though there may be a slight preponderance against the verdict. Clark v. Aldenhoven, 26 Colo. App. 501, 143 P. 267 (1914).

The trial court’s action will not be reviewed unless a manifest abuse of discretion appears. Clark v. Aldenhoven, 26 Colo. App. 501, 143 P. 267 (1914).

Where the verdict of a jury is manifestly against the weight of the evidence, it will be set aside by the appellate court. Denver & R. G. R. R. v. Peterson, 30 Colo. 77, 69 P. 578 (1902); McGraw v. Kerr, 23 Colo. App. 163, 128 P. 870 (1912).

Where the record fails to disclose any satisfactory evidence as to the real merits of the controversy, the judgment will be reversed and the cause remanded for a new trial. Scott v. Conrad, 24 Colo. App. 452, 135 P. 135 (1913).

In actions for tort a verdict will not so readily be vacated as against the weight of evidence, as in actions ex contractu. A verdict will not be set aside either in the trial court or the court of review unless it is so manifestly against the weight of evidence as to warrant a presumption that the jury misunderstood the evidence or misconstrued its effect, or were influenced by improper motives. Clark v. Aldenhoven, 26 Colo. App. 501, 143 P. 267 (1914).

VI. EFFECT OF GRANTING NEW TRIAL.

To grant a new trial decides no one’s rights finally, but only submits them to another jury, with an opportunity to each party to bring forward better evidence if he can, and with opportunity to the judge to correct his own errors if any. Singer v. Chitwood, 126 Colo. 173, 247 P.2d 905 (1952).

A litigant may elect not to participate in trial and still seek review. In Colorado a litigant against whom a new trial has been ordered may elect to stand on such order, obtain a dismissal of the action, and thereupon seek review by appeal. Chartier v. Winslow Crane Serv. Co., 142 Colo. 294, 350 P.2d 1044 (1960).

New trial participation does not waive other objections. Prior to the amendment in 1964, a party against whom an order granting a new trial had been entered waived any error in the order by participating in the new trial. The amendment merely removed this waiver. It did not change the rule of Chartier in Chartier v. Winslow (142 Colo. 294, 350 P.2d 1044 (1960)) that a party may decline to participate in a new trial, permit judgment to be entered against him and sue out appeal for a determination of the correctness of the order granting the new trial. Rice v. Groat, 167 Colo. 554, 449 P.2d 355 (1969).

Proceeding to terminate parental rights. The granting of a new trial in a proceeding to terminate parental rights placed the parties in the positions they occupied prior to the vacated hearing. People in Interest of M.B., 188 Colo. 370, 535 P.2d 192 (1975).

VII. EFFECT OF GRANTING JUDGMENT NOTWITHSTANDING VERDICT, AMENDMENT OF FINDINGS, OR AMENDMENT OF JUDGMENT.

The effect of this rule is merely to render unnecessary a request for a formal reservation of the question of law raised by the motion for a directed verdict and, in addition, to regulate the time and manner of moving for direction and of moving for judgment on the basis of the refusal to direct. Burenheide v. Wall, 131 Colo. 371, 281 P.2d 1000 (1955).

VIII. TIME FOR DETERMINATION OF POST-TRIAL MOTIONS.

Section (j) is applicable only to motions filed on or after January 1, 1985, and does not apply to motions which were pending upon that date. Stientjes v. Olde-Cumberlin Auctioneers, Inc. 754 P.2d 1384 (Colo. App. 1988).

Motion for costs is not a motion for post-trial relief governed by this section and, therefore, need not be determined within 60 days under section (j). Meier v. McCoy, 119 P.3d 519 (Colo. App. 2004).

Construction of “determine” within context of section (j) for purposes of resolving timeliness of notices of appeal. Trial court made a “determination” on post-trial motions upon oral ruling from bench within 60 days from date of filing of last of such motions even though written order was not signed and entered until after expiration of 60-day period. In re Forsberg, 783 P.2d 283 (Colo. 1989).

Motion for amendment of findings and judgment was “determined” when trial court came to a decision on the merits of such motion and directed movant’s counsel to prepare order reflecting such decision, which order was not signed and entered until after 60-day period. In re Forsberg, 783 P.2d 283 (Colo. 1989).

A motion made pursuant to C.R.C.P. 60 cannot be used to circumvent the operation of section (j) unless the facts of the case constitute an “extreme situation” justifying relief from a judgment pursuant to C.R.C.P. 60(b)(5). Sandoval v. Trinidad Area Health Ass’n, 752 P.2d 1062 (Colo. App. 1988).

The “unique circumstances” doctrine is not available to a party seeking to modify the time for determination of a post-trial motion pursuant to section (j). Sandoval v. Trinidad Area Health Ass’n, 752 P.2d 1062 (Colo. App. 1988).

Time limits for filing notice of appeal under C.A.R. 4 must be met for appeals of judgments for attorney fees. The award of attorney fees in a case is sufficiently separate from an underlying judgment on the merits to require that a notice of appeal of the judgment awarding attorney fees be filed within the time limits of C.A.R. 4 independently of the judgment entered on the merits of the underlying case. If this is not done, the court of appeals is not vested with subject matter jurisdiction to determine issues related to the award of attorney fees. Dawes Agency v. Am. Prop. Mortg., 804 P.2d 255 (Colo. App. 1990).

Timely filing of motion for reconsideration of a completed post-trial ruling on an attorney fees issue tolls the time for filing a notice of appeal until the court determines the motion or the motion is deemed denied after 60 days pursuant to section (j). Jensen v. Runta, 80 P.3d 906 (Colo. App. 2003).

Time limits for filing notice of appeal under C.A.R. 4 are terminated as to all parties by timely filing of a motion under this rule. Thereafter, time begins to run upon determination of the motion or the date the motion is deemed denied, whichever is earlier. United Bank of Boulder, N.A. v. Buchanan, 836 P.2d 473 (Colo. App. 1992); Stone v. People, 895 P.2d 1154 (Colo. App. 1995).

Section (j) is designed to encourage expeditious determination of post-trial motions and to provide certainty in the calculation of the time within which a party must file a notice of appeal. Campbell v. McGill, 810 P.2d 199 (Colo. 1991).

Section (j) does not apply to issues concerning recovery of attorney fees not sought as damages. Tallitsch v. Child Support Servs., Inc., 926 P.2d 143 (Colo. App. 1996).

Section (j) satisfied where the court acted on motion within 60 days following the filing of the last multiple motions and where the court orally ruled upon the motions within 60 days, even though the written order was signed and entered after the period. Fenton v. Fibreboard Corp., 827 P.2d 564 (Colo. App. 1991).

Section (j) satisfied where plaintiff’s motion for reconsideration was entered within 60 days of the date trial court granted plaintiff’s motion to represent himself. Campbell v. McGill, 810 P.2d 199 (Colo. 1991).

The provisions of C.R.C.P. 54(b) regarding a trial court’s jurisdiction to revise its initial judgment are expressly incorporated in C.R.C.P. 58 and, therefore, are applicable to motions filed pursuant to this rule. The 60-day limit specified in section (j) did not bar trial court’s determination of a motion for new trial in case involving multiple claims and multiple parties when trial court did not make an express direction for entry of final judgment under C.R.C.P. 54(b) and there could be no entry of final judgment under C.R.C.P. 58(a). Smeal v. Oldenettel, 814 P.2d 904 (Colo. 1991).

Ruling on post-trial motion must be entered within 60-day time limit specified in section (j) and any order entered after such 60-day limitation is null and void. In re Micaletti, 796 P.2d 54 (Colo. App. 1990); Spencer v. Bd. of County Comm’rs, 39 P.3d 1272 (Colo. App. 2001).

A court loses jurisdiction when it fails to rule on a post-judgment motion within 60 days. The language of section (j) is mandatory and provides that the district court shall rule within 60 days or the motion shall be automatically denied. Arguelles v. Ridgeway, 827 P.2d 553 (Colo. App. 1991).

A motion under section (j) is automatically deemed denied after 60 days, however the court had authority under C.R.C.P. 60(a) to vacate such denial and rule on the motion because the court was unaware that defendant’s motion was pending at the time it entered judgment in favor of plaintiff. Farmers Ins. Exchange v. Am. Mfrs. Mut. Ins. Co., 897 P.2d 880 (Colo. App. 1995).

The time period for responding to motions is not extended when a court grants a party additional time to respond to the opposing party’s briefs. Arguelles v. Ridgeway, 827 P.2d 553 (Colo. App. 1991).

Failure to obtain an extension of time within which to file motion under this rule deprived the district court of jurisdiction to hear any motion filed after the 15-day period had expired and the untimely filing of that motion did not toll the running of the 45 days for the filing of a notice of appeal under C.A.R. 4. Stone v. People, 895 P.2d 1154 (Colo. App. 1995).

While section (a) provides that motions for amendment of judgment shall be filed within 15 days or such greater time as the court may allow, a court may only allow greater time during the 15 days following the entry of judgment. Once that period expires, the court loses jurisdiction to grant additional time. Spencer v. Bd. of County Comm’rs, 39 P.3d 1272 (Colo. App. 2001).

Plaintiff abandons timeliness issue if he or she does not argue that the trial court erred in rejecting her motion under this rule as untimely. In re McSoud, 131 P.3d 1208 (Colo. App. 2006).


Colo. Crim. P. 59

 

COLORADO COURT RULES
Copyright (c) 2016 by Matthew Bender & Company Inc.
All rights reserved

*** This document reflects changes received through February 19, 2016 ***

COLORADO RULES OF CRIMINAL PROCEDURE  
CHAPTER 29 COLORADO RULES OF CRIMINAL PROCEDURE FOR ALL COURTS OF RECORD IN COLORADO  
VIII. SUPPLEMENTARY AND SPECIAL PROCEEDINGS

Colo. Crim. P. 59 (2016)

Rule 59. Effective Date.

These Rules, except as noted on specific rules, take effect on April 1, 1974. Amendments take effect on the date indicated. They govern all proceedings in criminal actions brought after they take effect and also all further proceedings in actions then pending.



ANNOTATION

Applied in People v. Slender Wrap, Inc., 36 Colo. App. 11, 536 P.2d 850 (1975).


C.R.C.P. 60

 

COLORADO COURT RULES
Copyright (c) 2016 by Matthew Bender & Company Inc.
All rights reserved

*** This document reflects changes received through February 19, 2016 ***

COLORADO RULES OF CIVIL PROCEDURE  
CHAPTER 6 JUDGMENT

C.R.C.P. 60 (2016)

Rule 60. Relief from Judgment or Order.

(a) Clerical Mistakes. Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal such mistakes may be so corrected before the case is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.

(b) Mistakes; Inadvertence; Surprise; Excusable Neglect; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) Mistake, inadvertence, surprise, or excusable neglect; (2) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (3) the judgment is void; (4) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1) and (2) not more than six months after the judgment, order, or proceeding was entered or taken. A motion under this section (b) does not affect the finality of a judgment or suspend its operation. This Rule does not limit the power of a court: (1) To entertain an independent action to relieve a party from a judgment, order, or proceeding, or (2) to set aside a judgment for fraud upon the court; or (3) when, for any cause, the summons in an action has not been personally served within or without the state on the defendant, to allow, on such terms as may be just, such defendant, or his legal representatives, at any time within six months after the rendition of any judgment in such action, to answer to the merits of the original action. Writs of coram nobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.

Cross references: For stay of proceedings to enforce judgments, see C.R.C.P. 62(b); for setting aside default, see C.R.C.P. 55(c).

RECENT ANNOTATIONS

Trial court has jurisdiction to consider a request for relief from an award of attorney fees and costs under section (b)(4) if the award was based on an underlying judgment that was reversed or vacated on appeal. Party did not waive her right to challenge the award by failing to separately appeal the award. Oster v. Baack, 2015 COA 39, 351 P.3d 546.

ANNOTATION

I. General Consideration.
II. Clerical Mistakes.
III. Mistake; Inadvertence; Surprise; Excusable Neglect; Fraud; etc.
   A. In General.
   B. Default Judgments.

I. GENERAL CONSIDERATION. Law reviews. For article, “Notes on Proposed Amendments to Colorado Rules of Civil Procedure”, see 27 Dicta 165 (1950). For article, “Amendments to the Colorado Rules of Civil Procedure”, see 28 Dicta 242 (1951). For article, “Judgment: Rules 54-63”, see 23 Rocky Mt. L. Rev. 581 (1951). For article, “One Year Review of Civil Procedure”, see 34 Dicta 69 (1957). For article, “One Year Review of Civil Procedure”, see 35 Dicta 3 (1958). For article, “One Year Review of Civil Procedure and Appeals”, see 37 Dicta 21 (1960). For article, “One Year Review of Civil Procedure and Appeals”, see 40 Den. L. Ctr. J. 66 (1963). For note, “One Year Review of Civil Procedure”, see 41 Den. L. Ctr. 67 (1964). For a discussion of federal jurisdiction arising under this rule, see survey of Tenth Circuit decisions on federal practice and procedure, 53 Den. L.J. 153 (1976). For article, “Post-Trial Motions in the Civil Case: An Appellate Perspective”, see 32 Colo. Law. 71 (November 2003).

Annotator’s note. Since this rule is similar to §§50(e) and 81 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that sections have been included in the annotations to this rule.

Once a valid judgment is entered, the only means by which the trial court may thereafter alter, amend, or vacate the judgment is by appropriate motion under either C.R.C.P. 59 or this rule. Cortvriendt v. Cortvriendt, 146 Colo. 387, 361 P.2d 767 (1961).

This rule prescribes the conditions upon which the court may relieve a party from a final judgment. Riss v. Air Rental, Inc., 136 Colo. 216, 315 P.2d 820 (1957).

Court may relieve only a party or a party’s legal representative from a final judgment; therefore, garnishor of judgment debtor could not seek to modify or set aside an order in the principal case since it was not a party to that case. Law Offices of Quiat v. Ellithorpe, 917 P.2d 300 (Colo. App. 1995).

A motion under this rule may not be used to circumvent the operation of C.R.C.P. 59(j), absent extraordinary circumstances involving extreme situations. Anderson v. Molitor, 770 P.2d 1305 (Colo. App. 1988).

A motion for relief from judgment under section (b) of this rule may not be construed to avoid C.R.C.P. 59(j) and its 60-day requirement. Diamond Back Servs., Inc. v. Willowbrook Water, 961 P.2d 1134 (Colo. App. 1998).

This rule is not a substitute for appeal, but instead is meant to provide relief in the interest of justice in extraordinary circumstances. Thus, a motion under this rule generally cannot be used to circumvent the operation of C.R.C.P. 59(j). De Avila v. Estate of DeHerrera, 75 P.3d 1144 (Colo. App. 2003).

After the expiration of his term of office, a judge may not entertain a motion under this rule, even though such motion is filed in a proceeding wherein the “former” judge had himself entered the final judgment at a time when he was actually serving as a judge. Olmstead v. District Court, 157 Colo. 326, 403 P.2d 442 (1965).

A court’s error in interpreting a statutory grant of jurisdiction is not equivalent to acting with a total lack of jurisdiction. King v. Everett, 775 P.2d 65 (Colo. App. 1989), cert. denied, Everett v. King, 786 P.2d 411 (Colo. 1989).

Trial court could not amend judgment to include prejudgment interest when omission was intentional. Jennings v. Ibarra, 921 P.2d 62 (Colo. App. 1996).

A judgment creditor is not required to get an amended judgment showing trial court intended to award post-judgment interest where court inadvertently failed to do so. Bainbridge, Inc., v. Douglas County Sch. Dist., 973 P.2d 684 (Colo. App. 1998) (declining to follow Jennings v. Ibarra, 921 P.2d 62 (Colo. App. 1996)).

An appellate court does not grant or deny motions filed subsequent to entry of judgment under this rule, since this is a function of the trial court; once a trial court has acted, however, an appellate court may in appropriate proceedings be called upon to review the propriety of the action thus taken by it. Olmstead v. District Court, 157 Colo. 326, 403 P.2d 442 (1965).

Default judgment entered after a hearing on damages was a final judgment because it left the court with nothing to do but execute upon the judgment. Therefore, motion to set aside the default judgment filed within six months was timely filed. Sumler v. District Ct., City & County of Denver, 889 P.2d 50 (Colo. 1995).

There were no grounds for vacating the default judgment where plaintiff failed to show a reason for not amending the original complaint during the three months before default judgment was entered. Since the judgment was not vacated, it was within the court’s discretion to deny the motion to amend the original complaint after entry of the default judgment. Wilcox v. Reconditioned Office Sys., 881 P.2d 398 (Colo. App. 1994).

Where none of the grounds prescribed by this rule, upon which a party may be relieved from a final judgment or order is urged in a motion to vacate, no abuse of discretion in denying such motion can be shown. Cortvriendt v. Cortvriendt, 146 Colo. 387, 361 P.2d 767 (1961).

There were no grounds for vacating the default judgement where the federal district court entered an order denying defendant’s attempt to remove the case to federal court and remanded the case to state court prior to the trial date. Plaintiff’s request for reconsideration of the federal court’s order did not cut off the state court’s jurisdiction since, under federal law, remand orders are not reviewable on appeal or otherwise. Blazer Elec. Supply Co. v. Bertrand, 952 P.2d 857 (Colo. App. 1998).

Meritorious defense not grounds for vacation of judgment. A party may not have a judgment vacated solely upon an allegation of the existence of a meritorious defense. Craig v. Rider, 628 P.2d 623 (Colo. App. 1980), rev’d on other grounds, 651 P.2d 397 (Colo. 1982).

The mere existence of a meritorious defense is not sufficient alone to justify vacating the judgment. Biella v. State Dept. of Hwys., 652 P.2d 1100 (Colo. App. 1982).

Appellate review limited to whether trial court abused its discretion. Appellate review of the grant or denial of a motion under section (b) is normally limited to determining whether the district court abused its discretion. In re Stroud, 631 P.2d 168 (Colo. 1981).

It is within the discretion of the trial court to determine whether a party’s conduct justifies relief from a judgment, and such determination will be upheld unless the court abused its discretion. Messler v. Phillips, 867 P.2d 128 (Colo. App. 1993).

Appellate review of the denial of a motion under section (b) of this rule is limited to whether the trial court abused its discretion. A trial court abuses its discretion if its decision is manifestly arbitrary, unreasonable, or unfair. Guevara v. Foxhoven, 928 P.2d 793 (Colo. App. 1996).

A motion pursuant to section (b) must meet the requirements of the rule in order to be subject to exercise of the court’s discretion. Especially with respect to the residuary provision of section (b)(5), which has been narrowed to include only extreme situations and extraordinary circumstances, a trial court’s ruling must be reviewed in light of the purposes of the rule and the importance to be accorded the principle of finality. Davidson v. McClellan, 16 P.3d 233 (Colo. 2001).

Where defendant failed to object to plaintiff’s motion for substitution of parties and also failed to object to trial court’s order permitting the substitution, the right to appeal on those issues is waived. Thomason v. McAlister, 748 P.2d 798 (Colo. App. 1987).

Where there has been a hearing on a motion pursuant to this rule involving controverted issues of fact, a motion for new trial is a jurisdictional prerequisite for appellate review. Canady v. Dept. of Admin., 678 P.2d 1056 (Colo. App. 1983).

Order granting relief on insufficient grounds not void. Failure to allege sufficient grounds for relief from a prior judgment does not make the subsequent order granting that motion void; rather, the court’s action is legal error, vulnerable to reversal upon appeal. In re Stroud, 631 P.2d 168 (Colo. 1981).

Judgment must be final before time limitations apply. Where order of default was entered against one of two defendants but action remained pending and no C.R.C.P. 54(b) certification was obtained, timeliness of motion would be gauged in relation to date of dismissal of action against second defendant. United Bank of Boulder, N.A. v. Buchanan, 836 P.2d 473 (Colo. App. 1992).

Time limit inapplicable where judgment exceeded jurisdiction. Where a claim is made that the district court’s judgment exceeded its jurisdiction, the time limit of section (b) does not apply. Mathews v. Urban, 645 P.2d 290 (Colo. App. 1982); United Bank of Boulder, N.A. v. Buchanan, 836 P.2d 473 (Colo. App. 1992).

Even though a motion under C.R.C.P. 59(j) is automatically denied after 60 days, the court had authority under section (a) to vacate the judgment on its own motion because the court was unaware that defendant’s motion was pending at the time it entered judgment in favor of plaintiff. Farmers Ins. Exch. v. Am. Mfrs. Mut. Ins. Co., 897 P.2d 880 (Colo. App. 1995).

Successor judge may consider challenges to rulings of law presented in a motion for a new trial. Faris v. Rothenberg, 648 P.2d 1089 (Colo. 1982).

Appeal from denial of motion. Denial of a motion under this rule is appealable independently of an underlying judgment. United Bank of Boulder, N.A. v. Buchanan, 836 P.2d 473 (Colo. App. 1992).

An order denying a motion under section (b) of this rule is appealable independently of an underlying judgment and requires a separate notice of appeal. Sender v. Powell, 902 P.2d 947 (Colo. App. 1995); Guevara v. Foxhoven, 928 P.2d 793 (Colo. App. 1996).

District court has jurisdiction to review a section (b)(2) motion where a magistrate has authority under § 13-5-301 to hear the motion without the consent of the parties. In re Malewicz, 60 P.3d 772 (Colo. App. 2002).

A section (b)(2) motion filed within six months of the district court’s order is timely filed under this rule. In re Malewicz, 60 P.3d 772 (Colo. App. 2002).

Court’s order discharging a receiver appointed under predecessor to § 38-38-601 is a final judgment subject to appellate review, and any claim based on misfeasance or malfeasance of the receiver must be presented prior to discharge, if at all, unless grounds exist for relief from judgment under this rule. Four Strong Winds, Inc. v. Lyngholm, 826 P.2d 414 (Colo. App. 1992).

Relief from foreign judgments available under this rule is limited by full faith and credit clause of federal constitution to: (1)Judgments based upon fraud; (2)void judgments; and (3)judgments which have been satisfied, released, or discharged, or a prior judgment upon which it was based has been reversed or vacated, or it is no longer equitable that judgment should have prospective application. Marworth, Inc. v. McGuire, 810 P.2d 653 (Colo. 1991).

A trial court’s ruling in resolving a motion for relief from judgment predicated on newly discovered evidence under section (b) will not be disturbed absent a clear showing of an abuse of discretion. Sender v. Powell, 902 P.2d 947 (Colo. App. 1995).

Failure to submit financial information to the trial court and the failure of the trial court to review the modified child support agreement between the parties rendered the resulting trial court order subject to being set aside under section (b)(5). In re Smith, 928 P.2d 828 (Colo. App. 1996).

The provisions for vacating, modifying, or correcting an arbitration award are set forth in §§ 13-22-223 and 13-22-224 and are the exclusive means for challenging an award. Therefore, this rule is not the appropriate vehicle to challenge the award. Superior Constr. Co. v. Bentley, 104 P.3d 331 (Colo. App. 2004).

Applied in Valenzuela v. Mercy Hosp., 34 Colo. App. 5, 521 P.2d 1287 (1974); Janicek v. Hinnen, 34 Colo. App. 68, 522 P.2d 113 (1974); Bankers Union Life Ins. Co. v. Fiocca, 35 Colo. App. 306, 532 P.2d 57 (1975); In re Estate of Bonfils, 190 Colo. 70, 543 P.2d 701 (1975); Duran v. District Court, 190 Colo. 272, 545 P.2d 1365 (1976); Johnston v. District Court, 196 Colo. 261, 580 P.2d 798 (1978); In re Gallegos, 41 Colo. App. 116, 580 P.2d 838 (1978); O’Hara Group Denver, Ltd. v. Marcor Hous. Sys., 197 Colo. 530, 595 P.2d 679 (1979); Sec. State Bank v. Weingardt, 42 Colo. App. 219, 597 P.2d 1045 (1979); In re Stroud, 657 P.2d 960 (Colo. App. 1979); Collection Agency, Inc. v. Golding, 44 Colo. App. 421, 616 P.2d 988 (1980); Town of Breckenridge v. City & County of Denver, 620 P.2d 1048 (Colo. 1980); People in Interest of T.A.F. v. B.F., 624 P.2d 349 (Colo. App. 1980); In re Van Camp, 632 P.2d 1062 (Colo. App. 1981); Soehner v. Soehner, 642 P.2d 27 (Colo. App. 1981); Cross v. District Court, 643 P.2d 39 (Colo. 1982); Best v. Jones, 644 P.2d 89 (Colo. App. 1982); Moore & Co. v. Williams, 657 P.2d 984 (Colo. App. 1982); Kendall v. Costa, 659 P.2d 715 (Colo. App. 1982); Falzon v. Home Ins. Co., 661 P.2d 696 (Colo. App. 1982); Ground Water Comm’n v. Shanks, 658 P.2d 847 (Colo. 1983); In re Hiner, 669 P.2d 135 (Colo. App. 1983); Yard v. Ambassador Bldr. Corp., 669 P.2d 1040 (Colo. App. 1983); Wright Farms, Inc. v. Weninger, 669 P.2d 1054 (Colo. App. 1983); In re Ward, 670 P.2d 1260 (Colo. App. 1983); Turchick & Kempter v. Hurd & Titan Constr., 674 P.2d 969 (Colo. App. 1983); Realty World-Range Realty, Ltd. v. Prochaska, 691 P.2d 761 (Colo. App. 1984); E.B. Jones Constr. Co. v. Denver, 717 P.2d 1009 (Colo. App. 1986); In re Allen, 724 P.2d 651 (Colo. 1986); People v. Caro, 753 P.2d 196 (Colo. 1988); Blesch v. Denver Publ’g Co., 62 P.3d 1060 (Colo. App. 2002).

II. CLERICAL MISTAKES. The failure to include interest is an oversight or omission and falls squarely within this rule. Crosby v. Kroeger, 138 Colo. 55, 330 P.2d 958 (1958); Reasoner v. District Court, 197 Colo. 516, 594 P.2d 1060 (1979).

Since the statute required an award of prejudgment interest and failure to include such interest was merely a ministerial oversight, passage of five years since entry of the award would not prevent the addition of prejudgment interest, even though the original amount of the award had been satisfied. Brooks v. Jackson, 813 P.2d 847 (Colo. App. 1991).

It is not error for a court to correct a judgment by including interest when the omission is called to its attention. Crosby v. Kroeger, 138 Colo. 55, 330 P.2d 958 (1958).

An error in the calculation of interest is merely clerical and does not require court intervention and stay of execution. Schaffer v. District Court, 172 Colo. 43, 470 P.2d 18 (1970).

Where the written, final decree does not reflect the oral findings of fact and an earlier order of the court, the decree is not in accord with the expectations and understanding of the court and the parties and that is the type of error section (a) of this rule is designed to remedy. Reasoner v. District Court, 197 Colo. 516, 594 P.2d 1060 (1979).

This rule provides that a trial court may correct an oversight while the case is pending on appeal, provided leave of the appellate court is obtained. Callaham v. Slavsky, 153 Colo. 291, 385 P.2d 674 (1963).

Language of the order of remand was sufficiently broad to authorize the trial court’s amendment of its order. Flatiron Paving Co. v. Wilkin, 725 P.2d 103 (Colo. App. 1986).

Under section (a), a district court may correct a misnamed party in a judgment. Reisbeck, LLC v. Levis, 2014 COA 167, 342 P.3d 603.

Where the failure is not that of a judge in entering an incorrect judgment or decree, or that of a clerk in incorrectly recording the proceedings had in a case, but rather, it is the attorney’s failure to prosecute with due diligence the proceedings which he has commenced on behalf of a plaintiff, then, under these circumstances, relief is properly denied under section (a) of this rule. Hatcher v. Hatcher, 169 Colo. 174, 454 P.2d 812 (1969).

Attorney’s failure to proceed diligently not clerical error. Unexcused attorney failure to diligently proceed on behalf of his client does not constitute clerical error justifying relief under section (a). Cavanaugh v. State Dept. of Soc. Servs., 644 P.2d 1 (Colo. 1982), appeal dismissed for want of substantial federal question, 459 U.S. 1011, 103 S. Ct. 367, 74 L. Ed. 2d 504 (1982), reh’g denied, 460 U.S. 1104, 103 S. Ct. 1806, 76 L. Ed. 2d 369 (1983).

Where the record reflects the court’s intent to include amounts owing under a contract, the amount due under the contract was virtually undisputed, and the court made extensive findings that the contract was wrongfully terminated, it was judicial error and correctable under section (a) when the court omitted such amounts from its final order. Diamond Back Servs., Inc. v. Willowbrook Water, 961 P.2d 1134 (Colo. App. 1998).

Where plaintiff filed a motion under C.R.C.P. 59 for post-judgment relief for a clerical error made by the court for failure to include the amount unpaid in a wrongfully terminated contract, the court’s failure to rule on the C.R.C.P. 59 motion did not bar the plaintiff from seeking relief under section (a) of this rule. Diamond Back Servs., Inc. v. Willowbrook Water, 961 P.2d 1134 (Colo. App. 1998).

A motion under section (a) is limited to making a judgment speak the truth as originally intended, and not intended to relitigate the matter before the court. Diamond Back Servs., Inc. v. Willowbrook Water, 961 P.2d 1134 (Colo. App. 1998).

A motion or order under section (a) does not extend the time for filing a notice of appeal of the underlying judgment. An order clarifying the original judgment relates back to the time of the filing of the initial judgment and does not extend the time for appeal of that judgment. In re Buck, 60 P.3d 788 (Colo. App. 2002).

Clerical error in a verdict form does not include an alleged error that either alters the legal effect of the jury’s verdict or addresses the jury’s misunderstanding or misapplication of the court’s instructions. Clerical error corrections to a jury’s verdict are disfavored. Stewart v. Rice, 47 P.3d 316 (Colo. 2002).

Use of Larimer county as the venue defendant had erroneously identified on the caption of the proposed order authorizing foreclosure sale was a clerical error that did not affect its validity. Colorado law looks to the substance of a pleading and not to the form of its caption. Moreover, under section (a), courts have the power to correct a clerical error in an order. Upon defendant’s motion brought under section (a), district court magistrate corrected the clerical error by issuing an amended order, nunc pro tunc. Estates in Eagle Ridge, LLLP v. Valley Bank & Trust, 141 P.3d 838 (Colo. App. 2005).

Equipment failure resulting in the lack of a complete transcript is not a clerical error. Correction of clerical errors under section (a) is a matter within the discretion of the trial court, and the court here did not abuse its discretion in ruling that plaintiff’s motion for a new trial based on equipment failure was not a clerical error as contemplated by section (a). In re McSoud, 131 P.3d 1208 (Colo. App. 2006).

III. MISTAKE; INADVERTENCE; SURPRISE; EXCUSABLE NEGLECT; FRAUD; ETC.

A.In General. Law reviews. For article, “Appellate Procedure and the New Supreme Court Rules”, see 30 Dicta 1 (1953). For article, “One Year Review of Appeals and Agency”, see 33 Dicta 13 (1956). For article, “One Year Review of Civil Procedure and Appeals”, see 36 Dicta 5 (1959). For note, “Res Judicata — Should It Apply to a Judgment Which is Being Appealed?”, see 33 Rocky Mt. L. Rev. 95 (1960). For note, “Batton v. Massar: The Finality of Colorado Adoptions”, see 35 U. Colo. L. Rev. 314 (1963).

Authority for relief from a judgment order or proceeding is conferred in an appropriate proceeding by section (b) of this rule. Peercy v. Peercy, 154 Colo. 575, 392 P.2d 609 (1964).

It is incumbent upon one to prove mistake, inadvertence, surprise, excusable neglect, or fraud or that a judgment is void because no service was had upon him. Riss v. Air Rental, Inc., 136 Colo. 216, 315 P.2d 820 (1957).

In order to be entitled to relief under this rule, a defendant has to demonstrate to the trial court either mistake, inadvertence, surprise, excusable neglect, fraud, misrepresentation, or other misconduct on the part of plaintiff. Eisenson v. Eisenson, 158 Colo. 394, 407 P.2d 20 (1965).

Party seeking relief from judgment must demonstrate by clear, strong, and satisfactory proof that such relief is warranted. Domenico v. Sw. Props. Venture, 914 P.2d 390 (Colo. App. 1995).

A motion to vacate a judgment must allege a defense which is “prima facie” meritorious. Henritze v. Borden Co., 163 Colo. 589, 432 P.2d 2 (1967).

A meritorious defense must be stated with such particularity that the court can see that it is a substantial and meritorious defense, and not merely a technical or frivolous one. Henritze v. Borden Co., 163 Colo. 589, 432 P.2d 2 (1967).

This rule prescribes the conditions upon which a court may relieve a party from a final judgment. Riss v. Air Rental, Inc., 136 Colo. 216, 315 P.2d 820 (1957).

Motions for relief from a final order are governed by this rule under which the time for filing such motions is expressly limited to six months. Love v. Rocky Mt. Kennel Club, 33 Colo. App. 4, 514 P.2d 336 (1973).

To be entitled to have a judgment vacated or set aside, a disadvantaged party must bring himself within the terms and conditions of this rule. Peercy v. Peercy, 154 Colo. 575, 392 P.2d 609 (1964).

Surety bond not required. Section (b) of this rule, providing that a court may set aside a judgment upon such terms as may be just, does not warrant an order of court requiring defendants to post a surety bond in the full amount of a plaintiffs’ claim as a condition to having their defense heard. Prather v. District Court, 137 Colo. 584, 328 P.2d 111 (1958); Rencher v. District Court, 160 Colo. 523, 418 P.2d 289 (1966).

This rule provides for the granting of relief from judgments entered by mistake, inadvertence, surprise, excusable neglect, fraud, etc. Prather v. District Court, 137 Colo. 584, 328 P.2d 111 (1958).

Section (b) of this rule permits a court to relieve a party from a final judgment or order for “mistake, inadvertence, surprise, or excusable neglect”. Burson v. Burson, 149 Colo. 566, 369 P.2d 979 (1962); Dept. of Welfare v. Schneider, 156 Colo. 189, 397 P.2d 752 (1964); Domenico v. Sw. Props. Venture, 914 P.2d 390 (Colo. App. 1995).

A court may set aside a judgment in favor of a debtor if the judgement was entered into in violation of the automatic stay provision of the federal bankruptcy code. McGuire v. Champion Fence & Contstr., Inc., 104 P.3d 327 (Colo. App. 2004).

Relief under section (b) is limited to setting aside an order or judgment. It is beyond the authority of a court to grant additional affirmative relief, such as reformation of a settlement agreement, in instances of fraud, misrepresentation, or other misconduct. Affordable Country Homes, LLC v. Smith, 194 P.3d 511 (Colo. App. 2008).

Father’s motion for relief not time-barred because judgment was void. Where notice through publication was inadequate because birth mother made fraudulent misrepresentations to the court, birth father was deprived of his constitutional right to due process, thus making the judgment terminating his parental rights void by default. The requirements of due process take precedence over statutory enactments. In re C.L.S., 252 P.3d 556 (Colo. App. 2011).

C.R.C.P. 11 imposes sanctions upon those who violate its provisions, it does not preclude relief under section (b)(1) of this rule. Domenico v. Sw. Props. Venture, 914 P.2d 390 (Colo. App. 1995).

Relief under section (b) is available for judgments entered pursuant to § 13-17-202. Domenico v. Sw. Props. Venture, 914 P.2d 390 (Colo. App. 1995).

Responsibility for reasons under clause (1) in the first sentence of section (b) shall be of party. The mistake, inadvertence, surprise, or excusable neglect subject to correction under this rule must be by a party to the action or his legal representative. Columbia Sav. & Loan Ass’n v. District Court, 186 Colo. 212, 526 P.2d 661 (1974).

Acceptance under judgment waives right to review. A party who accepts an award or legal advantage under a judgment normally waives his right to any review of the adjudication which may again put in issue his right to the benefit which he has accepted. Farmers Elevator Co. v. First Nat’l Bank, 181 Colo. 231, 508 P.2d 1261 (1973).

A motion to vacate upon any of the grounds must be made within a “reasonable time”. Sunshine v. Robinson, 168 Colo. 409, 451 P.2d 757 (1969).

A motion to vacate judgment must be filed within a “reasonable time” under this rule. Salter v. Bd. of County Comm’rs, 133 Colo. 138, 292 P.2d 345, cert. denied, 352 U.S. 829, 77 S. Ct. 37, 1 L. Ed. 2d 48 (1956).

For purposes of motion based on evidence of perjury, there is a critical difference between perjury and the mere presence of factual conflicts or deficiencies in the evidence; proponent must show that discrepancies or inaccuracies in testimony were not the result of the usual shortcomings inherent in human perception and memory but rather were the result of a willful fabrication of evidence bearing on a material issue. Aspen Skiing Co. v. Peer, 804 P.2d 166 (Colo. 1991); In re Eisenhuth, 976 P.2d 896 (Colo. App. 1999).

In dissolution of marriage case trial court did not abuse its discretion in denying husband’s motion under section (b)(2) even though husband contended wife undervalued, omitted, or otherwise hid marital assets at dissolution of marriage hearings where husband did not show that such alleged discrepancies or inaccuracies in wife’s testimony resulted from a willful fabrication of evidence. In re Eisenhuth, 976 P.2d 896 (Colo. App. 1999).

Denial of motion for new trial upheld where newly discovered evidence allegedly demonstrating that plaintiff perjured himself at trial was equally consistent with theory that plaintiff’s perceptions and recollections of accident honestly differed from those of certain other witnesses. Aspen Skiing Co. v. Peer, 804 P.2d 166 (Colo. 1991).

Denial of motion for new trial upheld where intentional misconduct was ameliorated before and during trial. Court held that there was no reason to presume that defendant’s misconduct substantially impaired plaintiff’s ability to prepare for and proceed at trial. Antolovich v. Brown Group Retail, Inc., 183 P.3d 582 (Colo. App. 2007).

Relief from the operation of a judgment alleged to have resulted from mistake must be pursued by motion, to be made within a “reasonable time”. Peercy v. Peercy, 154 Colo. 575, 392 P.2d 609 (1964).

“Any other reason justifying relief” language of section (b)(5) encompasses newly discovered evidence. A motion for relief from a judgment pursuant to this rule on the ground of newly discovered evidence should be resolved by the same criteria applicable to a C.R.C.P. 59 (d)(4) motion: Applicant must establish that the evidence could not have been discovered by the exercise of reasonable diligence and produced at the first trial; the evidence was material to an issue in the first trial; and the evidence, if admitted, would probably change the result of the first trial. S.E. Colorado Water Conservancy Dist. v. O’Neill, 817 P.2d 500 (Colo. 1991), aff’d, 854 P.2d 167 (Colo. 1993).

Section (b)(5) is a residuary clause for application only in situations not covered by other sections in this rule. McElvaney v. Batley, 824 P.2d 73 (Colo. App. 1991); Domenico v. Sw. Props. Venture, 914 P.2d 390 (Colo. App. 1995).

Section (b)(5) does not apply where motion is based on “fraudulent acts and misrepresentations”. Instead, such a motion is subject to section (b)(2) and the corresponding six-month time limit. In re Adoption of P.H.A., 899 P.2d 345 (Colo. App. 1995).

This rule may be used as a mechanism for obtaining relief from a final judgment due to a change in case law precedent. State Farm Mut. Auto. Ins. Co. v. McMillan, 925 P.2d 785 (Colo. 1996).

However, while C.R.C.P. 59 gives a trial court “full power to correct any and all errors committed,” under section (b)(5) of this rule, the erroneous application of the law is simply not a sufficient basis for relief. Spencer v. Bd. of County Comm’rs, 39 P.3d 1272 (Colo. App. 2001); SR Condos., LLC v. K.C. Constr., Inc., 176 P. 3d 866 (Colo. App. 2007).

Section (b) of this rule requires any motion for relief of judgment on the grounds of mistake or fraud to be made within six months after judgment. Schaffer v. District Court, 172 Colo. 43, 470 P.2d 18 (1970).

Less than five weeks is not unreasonable. A delay of less than five weeks, if the allegation of when they learned of the judgment be true, cannot be said to be unreasonable. Sunshine v. Robinson, 168 Colo. 409, 451 P.2d 757 (1969).

Relief must be sought not more than six months after the judgment by section (b) of this rule. Burson v. Burson, 149 Colo. 566, 369 P.2d 979 (1962); Peercy v. Peercy, 154 Colo. 575, 392 P.2d 609 (1964); Dept. of Welfare v. Schneider, 156 Colo. 189, 397 P.2d 752 (1964).

Under section (b)(1) a motion to vacate must be filed within six months, or it is barred. Atlas Constr. Co. v. District Court, 197 Colo. 66, 589 P.2d 953 (1979).

Where a judgment resulted from a mistaken belief in the existence of a terminated order, this constitutes grounds for relief under section (b)(1), and the “reasonable time” limitation of this rule for avoiding the effects of the judgment upon such grounds cannot exceed six months. Sauls v. Sauls, 40 Colo. App. 275, 577 P.2d 771 (1977).

Where one seeks to be relieved from the judgment more than six months after its entry, such attempt is too late. Peercy v. Peercy, 154 Colo. 575, 392 P.2d 609 (1964).

A motion filed seven months after entry of judgment is filed too late. Fiant v. Town of Naturita, 127 Colo. 571, 259 P.2d 278 (1953); Salter v. Bd. of County Comm’rs, 133 Colo. 138, 292 P.2d 345, cert. denied, 352 U.S. 829, 77 S. Ct. 37, 1 L. Ed. 2d 48 (1956).

Since each of the installments for support becomes a judgment when it accrues, the only relief from judgment on the grounds of fraud or mistake would pertain to those installments which became due six months or less before the final judgment. Schaffer v. District Court, 172 Colo. 43, 470 P.2d 18 (1970).

Section (b) of this rule cannot be applied to bar a motion brought under § 14-10-122 (1)(c) for retroactive modification of child support based on a mutually agreed upon change of physical custody. Section (b) of the rule imposes a time limit for the motion and is inconsistent with the procedure contemplated in the statute. In re Green, 93 P.3d 614 (Colo. App. 2004).

A court has no authority to grant relief. Where a motion is filed after the six-month deadline required by this rule, a court would have had no authority to grant relief. AA Constr. Co. v. Gould, 28 Colo. App. 161, 470 P.2d 916 (1970).

Where plaintiff’s motion for reinstatement of the case was not timely filed within the specified six-month period following entry of the order of dismissal, the trial court was without authority to reinstate the case or to provide further relief. Love v. Rocky Mt. Kennel Club, 33 Colo. App. 4, 514 P.2d 336 (1973).

When the limiting period has passed, an order vacating judgment is absolutely void for lack of jurisdiction. Elder v. Richmond Gold & Mining Co., 58 F. 536 (8th Cir. 1893); Empire Const. Co. v. Crawford, 57 Colo. 281, 141 P. 474 (1914); Bd. of Control v. Mulertz, 60 Colo. 468, 154 P. 742 (1916).

Claim preclusion (otherwise known as res judicata) bars independent damages actions for wrongs committed in dissolution proceedings. After the six-month period following entry of judgment provided by section (b)(2), independent damages action for wrongs allegedly committed in the dissolution proceeding are barred. Gavrilis v. Gavrilis, 116 P.3d 1272 (Colo. App. 2005).

There was no fraud upon the court in dissolution of marriage action where husband’s fraudulent nondisclosure of assets and income was purely between the parties. In re Gance, 36 P.3d 114 (Colo. App. 2001).

Void judgment may be vacated at any time regardless of time limits established by rules of civil procedure. Don J. Best Trust v. Cherry Creek Nat. Bank, 792 P.2d 302 (Colo. App. 1990).

Independent equitable action permitted. The propriety of an independent equitable action to afford relief from a prior judgment is expressly permitted under the provisions of section (b) of this rule. Dudley v. Keller, 33 Colo. App. 320, 521 P.2d 175 (1974).

Six-month limitation has no application to independent equitable action. An independent action to obtain equitable relief from a prior judgment is not brought under section (b) of this rule, and, hence, the six months’ time limitation contained in this rule has no application. Terry v. Terry, 154 Colo. 41, 387 P.2d 902 (1963); Caldwell v. District Court, 644 P.2d 26 (Colo. 1982).

An independent equitable action to afford relief from a prior judgment is not restricted by the six-month time limitation upon motions made under clauses (1) to (5) in the first sentence of this rule. Dudley v. Keller, 33 Colo. App. 320, 521 P.2d 175 (1974).

Because an independent equitable action is not brought under this rule, the six-month time limit of clauses (1) and (2) in the first sentence of section (b) do not apply; rather, an independent equitable action must only be brought within a “reasonable time”. Atlas Constr. Co. v. District Court, 197 Colo. 66, 589 P.2d 953 (1979).

An independent equitable action may provide additional remedies. An independent equitable action to afford relief from a prior judgment may provide remedies in addition to those afforded under section (b) of this rule. Dudley v. Keller, 33 Colo. App. 320, 521 P.2d 175 (1974).

Essential criteria upon which relief may be granted in an equitable action to afford relief from a prior judgment contemplated by section (b) are as follows: (1) That the judgment ought not, in equity and good conscience, be enforced; (2) that there can be asserted a meritorious defense to the cause of action on which the judgment is founded; (3) that fraud, accident, or mistake prevented the defendant in the action from obtaining the benefit of his defense; (4) that there is an absence of fault or negligence on the part of defendant; (5) and that there exists no adequate remedy at law. Dudley v. Keller, 33 Colo. App. 320, 521 P.2d 175 (1974); In re Gance, 36 P.3d 114 (Colo. App. 2001).

Independent action to obtain equitable relief from prior judgment not brought under rule; rather, it is a new action, commenced in the same manner as any other civil action. Atlas Constr. Co. v. District Court, 197 Colo. 66, 589 P.2d 953 (1979).

Dismissal of judgment debtor’s motion for relief under section (b)(4) on the basis of settlement agreement between judgment debtor and judgment creditor was proper where such motion was not timely filed and the court lacked jurisdiction since judgment debtor elected to litigate settlement agreement in a separate action. Tripp v. Parga, 764 P.2d 367 (Colo. App. 1988).

A party may not use an independent equitable action to accomplish what it could have accomplished by appeal. In case where plaintiff argued that second complaint was an independent equitable action seeking relief from order dismissing his first complaint, plaintiff’s proper remedy was to seek timely appellate relief. Therefore, district court properly dismissed plaintiff’s second complaint. Kelso v. Rickenbaugh Cadillac Co., 262 P.3d 1001 (Colo. App. 2011).

This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding. Terry v. Terry, 154 Colo. 41, 387 P.2d 902 (1963).

Claimant seeking relief through an independent equitable action based on fraud must establish extrinsic fraud as opposed to mere intrinsic fraud. A mere showing of intrinsic fraud, such as perjury or nondisclosure between the litigants concerning the subject matter of the original action, is insufficient. In re Gance, 36 P.3d 114 (Colo. App. 2001).

Husband’s concealment of income and assets in dissolution of marriage action pertained to the substance and merits of the litigation and involved the parties themselves; it therefore did not rise to the level of fraud necessary to support an independent equitable action to vacate the underlying permanent orders. In re Gance, 36 P.3d 114 (Colo. App. 2001).

“Excusable neglect” sufficient to vacate an order results from circumstances which would cause a reasonably careful person to neglect a duty, and the issue of negligence is determined by the trier of fact. Craig v. Rider, 628 P.2d 623 (Colo. App. 1980), rev’d on other grounds, 651 P.2d 397 (Colo. 1982).

Party’s own negligence not excusable neglect. Where a party’s own carelessness resulted in its failure to file a responsive pleading, this carelessness does not constitute excusable neglect. Biella v. State Dept. of Hwys., 652 P.2d 1100 (Colo. App. 1982); Johnston v. S.W. Devanney & Co., Inc., 719 P.2d 734 (Colo. App. 1986).

In general, excusable neglect involves unforeseen occurrences that would cause a reasonably prudent person to overlook a required act in the performance of some responsibility. Failure to act because of carelessness and negligence is not excusable neglect. Messler v. Phillips, 867 P.2d 128 (Colo. App. 1993).

Reliance on opposing party’s pleadings held to be “excusable neglect”. A defendant’s reliance upon the plaintiff’s verified statement and pleadings appearing to drop the defendant from the action, coupled with the advice of an attorney that he need not be concerned about the proceedings, constitutes “excusable neglect” as a matter of law. People in Interest of C.A.W., 660 P.2d 10 (Colo. App. 1982).

Reliance on district court’s statements held to be “excusable neglect”. A defendant’s failure to move for a new trial, based on the district court’s assurance that such a motion was unnecessary in order for the defendant to appeal, constitutes excusable neglect under this rule. Tyler v. Adams County Dept. of Soc. Servs., 697 P.2d 29 (Colo. 1985).

Excusable neglect not found. Pro se plaintiff’s failure to comply with notice provisions of § 24-10-109 does not constitute excusable neglect. Deason v. Lewis, 706 P.2d 1283 (Colo. App. 1985).

The rule that negligence on the part of an attorney may constitute excusable neglect on the part of the client has no application if the client itself is also negligent. Johnson v. Capitol Funding, LTD., 725 P.2d 1179 (Colo. App. 1986).

Common carelessness and negligence do not amount to excusable neglect and a party’s conduct constitutes excusable neglect when the surrounding circumstances would cause a reasonably careful person similarly to neglect a duty. Guynn v. State Farm Mut. Auto Ins. Co., 725 P.2d 1162 (Colo. App. 1986).

Defendant’s assertion that its agent was without authority to enter into a contract with plaintiff was not excusable neglect. Merrill Chadwick Co. v. October Oil Co., 725 P.2d 17 (Colo. App. 1986).

Conduct of a party’s legal representative constitutes excusable neglect when surrounding circumstances would cause a reasonably prudent person to overlook a required act in the performance of some responsibility; however, common carelessness and negligence by the party’s attorney does not amount to excusable neglect. Guevara v. Foxhoven, 928 P.2d 793 (Colo. App. 1996).

Failure of settlement offer made by defendant’s insurance attorney to specify whether offer addressed fewer than all of the claims between the parties, did not constitute excusable neglect. Guevara v. Foxhoven, 928 P.2d 793 (Colo. App. 1996).

Excusable neglect does not constitute grounds for relief from the operation of C.R.C.P. 59(j). Sandoval v. Trinidad Area Health Ass’n, 752 P.2d 1062 (Colo. App. 1988).

Relief from a judgment may be granted on equitable grounds. Continental Nat’l Bank v. Dolan, 39 Colo. App. 16, 564 P.2d 955 (1977).

A motion under this rule cannot be overturned on appeal in the absence of an abuse of discretion by the district court. Front Range Partners v. Hyland Hills Metro., 706 P.2d 1279 (Colo. 1985); Domenico v. Sw. Props. Venture, 914 P.2d 390 (Colo. App. 1995).

Abuse of discretion will warrant reversal. While the grant or denial of relief from a judgment on equitable grounds is within the discretion of the trial court, an abuse of this discretion will warrant reversal. Continental Nat’l Bank v. Dolan, 39 Colo. App. 16, 564 P.2d 955 (1977); S.E. Colo. Water Conservancy Dist. v. O’Neill, 817 P.2d 500 (Colo. 1991), aff’d, 854 P.2d 167 (Colo. 1993); Blesch v. Denver Publ’g Co., 62 P.3d 1060 (Colo. App. 2002).

It is error to deny relief where dismissal erroneously ordered on court’s own motion. Where court on own motion dismissed action for failure to prosecute without complying with notice requirements of C.R.C.P. 41(b) and C.R.C.P. 121, §1-10(2), erroneous dismissal constituted sufficient reason to justify relief. Maxwell v. W.K.A. Inc., 728 P.2d 321 (Colo. App. 1986).

Abuse of discretion found where trial court refused to set aside the damages portion of a judgment. Johnston v. S.W. Devanney & Co., Inc., 719 P.2d 734 (Colo. App. 1986).

Abuse of discretion not found. Luna v. Fisher, 690 P.2d 264 (Colo. App. 1984); Merrill Chadwick Co. v. October Oil Co., 725 P.2d 17 (Colo. App. 1986).

Existence of meritorious defense and lack of prejudice to the plaintiff are insufficient to show an abuse of discretion in denying a motion to set aside a default. Johnston v. S.W. Devanney & Co., Inc., 719 P.2d 734 (Colo. App. 1986).

Even without tainted expert’s testimony, trial court found that other evidence in the case supported the judgment. People ex rel. S.G., 91 P.3d 443 (Colo. App. 2004).

This rule is not applicable to a motion to reform a property settlement agreement incorporated into a divorce decree, since C.R.C.P. 81(b) provides that the Rules of Civil Procedure shall not govern procedure and practice in divorce actions if in conflict with applicable statutes. Ingels v. Ingels, 29 Colo. App. 585, 487 P.2d 812 (1971).

This rule is not applicable to a juvenile court’s entry of an order terminating probation by mistake. The Colorado Rules of Civil Procedure apply only to juvenile matters that are not governed by the Colorado Children’s Code. People in Interest of M.T., 950 P.2d 669 (Colo. App. 1997).

District court erred in denying husband relief from provision of dissolution of marriage decree requiring him to pay part of his future social security benefits to wife. State law equitable estoppel principles cannot be applied to bar a party from challenging a judgment rendered void by the supremacy clause of the U.S. constitution. In re Anderson, 252 P.3d 490 (Colo. App. 2010).

A decree determining property rights in a divorce matter is final and cannot be subsequently modified by reason of a change of circumstances. Ferguson v. Olmsted, 168 Colo. 374, 451 P.2d 746 (1969).

Where a court may provide for custody of children by orders made “before or after” the entry of a final decree, the trial court may provide for the custody of the child even though the subject was not mentioned in the original decree. Kelley v. Kelley, 161 Colo. 486, 423 P.2d 315 (1967).

Six-month limit applicable in child support action. Where defendant in a child support action alleged there was fraud, extrinsic to the record, perpetrated by plaintiff, unless the fraud alleged was such as to defeat the jurisdiction of the court, defendant was subject to the six-month limit of this rule. McNeece v. McNeece, 39 Colo. App. 160, 562 P.2d 767 (1977).

Where defendant did not seek to reopen the divorce proceeding until approximately five years after entry of judgment, none of the grounds of C.R.C.P. 59 or this rule were available to him to reopen the divorce proceeding. McNeece v. McNeece, 39 Colo. App. 160, 562 P.2d 767 (1977).

Clause (5) of section (b) is residuary clause, covering extreme situations not covered by the preceding clauses in section (b). Atlas Constr. Co. v. District Court, 197 Colo. 66, 589 P.2d 953 (1979); Sisneros v. First Nat. Bank of Denver, 689 P.2d 1178 (Colo. App. 1984); Canton Oil v. District Court, 731 P.2d 687 (Colo. 1987).

A motion under this rule cannot be used to circumvent the operation of C.R.C.P. 59(j) unless the facts of the case constitute an “extreme situation” justifying relief from a judgment pursuant to clause (5) of section (b). Sandoval v. Trinidad Area Health Ass’n, 752 P.2d 1062 (Colo. App. 1988).

Total lack of judicial review of property division provisions of a separation agreement constitutes an omission falling within the ambit of clause (5) of section (b). In re Seely, 689 P.2d 1154 (Colo. App. 1984).

Reason alleged by a movant under clause (5) of section (b) must justify relief. Atlas Constr. Co. v. District Court, 197 Colo. 66, 589 P.2d 953 (1979); Sisneros v. First Nat. Bank of Denver, 689 P.2d 1178 (Colo. App. 1984).

Grievous jury misconduct raising sensitive issues of religion presents grounds for relief under clause (5) (“other reason”) of section (b). Canton Oil v. District Court, 731 P.2d 687 (Colo. 1987).

Where there is misconduct of jurors or the intrusion of irregular influences in the course of a trial, the test for determining whether a new trial will be granted is whether such matters had capacity of influencing result. Butters v. Dee Wann, 363 P.2d 494 (1961); Canton Oil v. District Court, 731 P.2d 687 (Colo. 1987).

While trial court personally expressed belief that verdict would have been same with a “decent” jury, trial court made necessary finding, in setting aside judgment, that jurors’ conduct had capacity of influencing verdict. Canton Oil v. District Court, 731 P.2d 687 (Colo. 1987).

Untimely assertion of federal statutory venue right is not an extreme situation justifying relief under clause (5) of section (b). Sisneros v. First Nat. Bank of Denver, 689 P.2d 1178 (Colo. App. 1984).

Repeated assurances by the court clerk that the defendant’s motion to alter and amend the judgment had been forwarded to the presiding judge when, in fact, no notification of said motion had been given to the judge did not constitute an “extreme situation” allowing relief under clause (5) of section (b). Sandoval v. Trinidad Area Health Ass’n, 752 P.2d 1062 (Colo. App. 1988).

Defense not timely raised. The existence of a defense not timely raised does not constitute an extreme situation justifying relief from a default judgment under clause (5) of section (b). Sisneros v. First Nat. Bank of Denver, 689 P.2d 1178 (Colo. App. 1984).

Changes in decisional law, even by the United States supreme court and even involving constitutionality, do not necessarily amount to the extraordinary circumstances required for relief pursuant to section (b)(5). Davidson v. McClellan, 16 P.3d 233 (Colo. 2001); SR Condos., LLC v. K.C. Constr., Inc., 176 P. 3d 866 (Colo. App. 2007).

Jurisdictional prerequisite for review of action on section (b) motion. A motion for a new trial is a jurisdictional prerequisite for appellate review of a grant or denial of a section (b) motion when there has been a hearing involving controverted issues of fact. Rowe v. Watered Down Farms, 195 Colo. 152, 576 P.2d 172 (1978).

Erroneous “in personam” decision may be vacated. A trial court may properly vacate its order of dismissal against a defendant where the original decision of the trial court to dismiss under the theory that the action was “in personam” and not “in rem” was erroneous. Linker v. Linker, 28 Colo. App. 136, 470 P.2d 882 (1970).

When a defendant voluntarily pays a judgment, he is barred from questioning any technicalities, either of pleading or form, incident to the entry of the judgment. Salter v. Bd. of County Comm’rs, 133 Colo. 138, 292 P.2d 345, cert. denied, 352 U.S. 829, 77 S. Ct. 37, 1 L. Ed. 2d 48 (1956).

Misplaced reliance on the advice of counsel is not in itself sufficient grounds for granting of relief under section (b) of this rule. BB v. SS, 171 Colo. 534, 468 P.2d 859 (1970); Luna v. Fisher, 690 P.2d 264 (Colo. App. 1984).

Where a party commits a cause to the agency of an attorney, the neglect, omission, or mistake of such attorney resulting in the rendition of a judgment against the party is available to authorize the vacation of the judgment. Fidelity Fin. Co. v. Groff, 124 Colo. 223, 235 P.2d 994 (1951); Domenico v. Sw. Props. Venture, 914 P.2d 390 (Colo. App. 1995).

When a trial court permits counsel to withdraw from a case without notice to his client and then adjudicated his rights “ex parte”, a judgment entered is void for lack of due process. Dalton v. People in Interest of Moors, 146 Colo. 15, 360 P.2d 113 (1961); Sunshine v. Robinson, 168 Colo. 409, 451 P.2d 757 (1969).

Malfeasance by attorney, consisting of failure to notify clients of motion for summary judgment or to respond to motion while under suspension from the practice of law, furnished grounds for relief from judgment where clients were unaware of the motion or of their attorney’s suspension. Valley Bank of Frederick v. Rowe, 851 P.2d 267 (Colo. App. 1993).

Action of trial court renders judgment void if defendants had no notice. The action of the trial judge in permitting the withdrawal of counsel and proceeding to judgment “ex parte” constituted a failure to protect the constitutional right of defendants to their day in court and renders judgment void if defendants had no notice that their counsel intended to seek permission to withdraw. Calkins v. Smalley, 88 Colo. 227, 294 P. 534 (1930); Blackwell v. Midland Fed. Sav. & Loan Ass’n, 132 Colo. 45, 284 P.2d 1060 (1955); Sunshine v. Robinson, 168 Colo. 409, 451 P.2d 757 (1969).

Where a judgment is entered upon a cognovit note without notice to the defendant, a motion in apt time is thereafter filed to set aside the same, and a meritorious defense is tendered by answer, it is the duty of a court to vacate the judgment and try the case on the merits. Richards v. First Nat’l Bank, 59 Colo. 403, 148 P. 912 (1915); Commercial Credit Co. v. Calkins, 78 Colo. 257, 241 P. 529 (1925); Mitchell v. Miller, 81 Colo. 1, 252 P. 886 (1927); Denver Indus. Corp. v. Kesselring, 90 Colo. 295, 8 P.2d 767 (1932); Lucero v. Smith, 110 Colo. 165, 132 P.2d 791 (1943); Prather v. District Court, 137 Colo. 584, 328 P.2d 111 (1958); Rencher v. District Court, 160 Colo. 523, 418 P.2d 289 (1966).

If a judgment of dismissal has terminated and put an end to, a case remains final for all purposes and is unaffected by a motion to grant relief therefrom. Johnson v. Johnson, 132 Colo. 236, 287 P.2d 49 (1955); Robles v. People in Interest of Robles, 150 Colo. 462, 373 P.2d 701 (1962).

A motion under section (b) does not affect the finality of a judgment or suspend its operation. Robles v. People in Interest of Robles, 150 Colo. 462, 373 P.2d 701 (1962).

A motion, in any event, is directed to the discretion of a trial court. Johnson v. Johnson, 132 Colo. 236, 287 P.2d 49 (1955); Robles v. People in Interest of Robles, 150 Colo. 462, 373 P.2d 701 (1962).

When one files such a motion, he admits for all practical purposes that the judgment is in all respects regular on the face of the record, but asserts that the record would show differently except for mistake, inadvertence, or excusable neglect on behalf of counsel or client. Johnson v. Johnson, 132 Colo. 236, 287 P.2d 49 (1955); Robles v. People in Interest of Robles, 150 Colo. 462, 373 P.2d 701 (1962).

The ruling on a motion to “dismiss and vacate” is not a final judgment from which an appeal will lie. Fiant v. Town of Naturita, 127 Colo. 571, 259 P.2d 278 (1953); Salter v. Bd. of County Comm’rs, 133 Colo. 138, 292 P.2d 345, cert. denied, 352 U.S. 829, 77 S. Ct. 37, 1 L. Ed. 2d 48 (1956).

Where defendant in prior action sought and obtained dismissal for failure to prosecute but did not specifically request dismissal with prejudice, order of dismissal did not so specify, and no good cause was shown for defendant’s failure to request dismissal with prejudice, subsequent “clarification” of order to specify dismissal with prejudice was ineffective. McElvaney v. Batley, 824 P.2d 73 (Colo. App. 1991).

Where a judgment is set aside on jurisdictional grounds, it is vacated and of no force and effect. Weaver Constr. Co. v. District Court, 190 Colo. 227, 545 P.2d 1042 (1976).

Party who lets judgment become final without objection to the court’s jurisdiction is precluded from attacking the subject matter jurisdiction through a motion under this rule. In re Mallon, 956 P.2d 642 (Colo. App. 1998).

Original judgment opened. Where a judgment is set aside on grounds other than those challenging the jurisdiction of the court, the judgment is opened and the moving party, after a showing of good cause and a meritorious defense, will be permitted to file an answer to the original complaint and participate in a trial on the merits. Weaver Constr. Co. v. District Court, 190 Colo. 227, 545 P.2d 1042 (1976).

If an issue is not res judicata, the district court’s judgment may be challenged as void through a motion pursuant to section (b) of this rule to vacate the judgment or through an independent action. Moore & Co. v. Williams, 672 P.2d 999 (Colo. 1983).

A void judgment is a judgment entered where jurisdictional defects exist and is a nullity, whereas an erroneous judgment is one rendered in accordance with method of procedure and practice allowed by law but is contrary to law; if a trial court has jurisdiction, it may correct an erroneous judgment. In re Pierce, 720 P.2d 591 (Colo. App. 1985).

Judgment rendered without jurisdiction is void and may be attacked directly or collaterally. In re Stroud, 631 P.2d 168 (Colo. 1981).

Judgment entered on legal holiday not void and becomes effective next business day. Section 13-1-118 (1) does not provide that any judicial business transacted in violation of its provisions is void. Rather, the statute is silent as to the effect of any order entered or other judicial business transacted in violation of its prohibitions. Section 13-1-118 (2) provides that the effect of having a day fixed for the opening of a court that falls on a prohibited day is that “the court shall stand adjourned until the next succeeding day.” Thus, the effect of the trial court’s entry of an order reviving judgment on a legal holiday was not to invalidate the order but, rather, merely to postpone its effective date until the next day the courts were open. Because the challenged judgment is not void, section (b)(3) of this rule provides no basis for relief. Arvada 1st Indus. Bank v. Hutchison, 15 P.3d 292 (Colo. App. 2000).

Government agencies treated same as other litigants. Absent an express statutory mandate to the contrary, government agencies are to be treated as would be any other litigant while before the court. Biella v. State Dept. of Hwys., 652 P.2d 1100 (Colo. App. 1982).

C.R.C.P. 6(b)(2) is controlling over this rule as to whether a trial court may extend the period of time for filing a motion for new trial under C.R.C.P. 59(b) (now (a)(1)) after the original filing period has expired. Liberty Mutual Ins. Co. v. Safeco Ins. Co., 679 P.2d 1115 (Colo. App. 1984).

Where court had lost jurisdiction under C.R.C.P. 59(b) (now (a)(1)), court had jurisdiction to set aside judgment under clause (5) of section (b) of this rule without unduly expanding the contours of the rule or undercutting C.R.C.P. 59(b) (now (a)(1)). Canton Oil v. District Court, 731 P.2d 687 (Colo. 1987).

Only issues contained in a motion under this rule are properly before the appellate court for review; constitutional objections not appearing in the motion will not be reviewed. Front Range Partners v. Hyland Hills Metro., 706 P.2d 1279 (Colo. 1985).

No evidentiary hearing need be conducted by the trial court considering a motion under this rule nor is there an abuse of discretion when a trial court determines such a motion without conducting such a hearing. Front Range Partners v. Hyland Hills Metro., 706 P.2d 1279 (Colo. 1985).

But nothing in this rule prevents a trial court from holding an evidentiary hearing on a motion under this rule if such a hearing would assist in reaching a just determination of the issues raised by the motion. Sharma v. Vigil, 967 P.2d 197 (Colo. App. 1998).

Reversal of conviction in criminal case grounds for relief from monetary forfeiture judgment. While a conviction is not required in every civil forfeiture case, the reversal of the conviction was relevant here because the court relied on that conviction in its forfeiture judgment. The physical evidence upon which the trial court had based its forfeiture judgment had been determined to be unconstitutionally seized, making it relevant. People v. $11,200.00 U.S. Currency, 316 P.3d 1 (Colo. App. 2011), rev’d on other grounds, 2013 CO 64, 313 P.3d 554.

Section (b) permits a trial court to rectify or reverse a prior judgment that, in light of new facts, is now erroneous. However, a holding that the forfeiture against a defendant’s property was void does not equate to a ruling that defendant is entitled to a return of the property or monetary relief from the government because a motion under section (b) is not a claim for the return of property. To the extent that the trial court’s order set aside the forfeiture judgment, the order was consistent with the power expressly granted the court under section (b). Section (b) does not empower the trial court to go further and order return of the property. People v. $11,200.00 U.S. Currency, 2013 CO 64, 313 P.3d 554.

B.Default Judgments. Law reviews. For comment on Self v. Watt, appearing below, see 26 Rocky Mt. L. Rev. 107 (1953). For comment on Coerber v. Rath appearing below, see 45 Den. L.J. 763 (1968).

Annotator’s note. For annotations relating to motions to vacate default judgments, see the annotations under the analysis title “IV. Setting Aside Default” under C.R.C.P. 55.

Review by writ of error is proper procedure. The only proper procedure to secure review of a trial court’s order granting an application to set aside a default judgment is by writ of error after final judgment, not prohibition. Stiger v. District Court, 188 Colo. 403, 535 P.2d 508 (1975).

Section (b) of this rule sets forth the procedure to be followed where one seeks to set aside a judgment entered by default. Fraka v. Malernee, 129 Colo. 87, 267 P.2d 651 (1954).

Section (b)(3) is the proper basis for vacating a default judgment if the defaulting party’s due process rights were violated by failure to receive notice of a default judgment. First Nat. Bank of Telluride v. Fleisher, 2 P.3d 706 (Colo. 2000).

Section (b) of this rule and C.R.C.P. 55(c) leave the matter of setting aside defaults and judgments entered thereon to the discretion of a trial judge. Ehrlinger v. Parker, 137 Colo. 514, 327 P.2d 267 (1958).

Allegations in a C.R.C.P. 55 motion for default are sufficient to assert a basis for relief from judgment on the basis of fraud. Salvo v. De Simone, 727 P.2d 879 (Colo. App. 1986).

Motion for a new trial is a jurisdictional prerequisite for appellate review of denial of a motion to vacate a default judgment, unless the hearing on the motion to vacate does not involve “controverted issues of fact”. Rowe v. Watered Down Farms, 195 Colo. 152, 576 P.2d 172 (1978).

The granting or denial of an application to vacate a default based on excusable neglect rests in the sound judicial discretion of a trial court. Browning v. Potter, 129 Colo. 448, 271 P.2d 418 (1954); Burr v. Allard, 133 Colo. 270, 293 P.2d 969 (1956); Ehrlinger v. Parker, 137 Colo. 514, 327 P.2d 267 (1958).

The determination of granting or denying relief under this rule rests in the sound discretion of the trial court on the particular facts of the case. Weeks v. Sigala, 32 Colo. App. 121, 509 P.2d 320 (1973).

The determination of whether to vacate or set aside a default judgment is within the sound discretion of the trial court. Dudley v. Keller, 33 Colo. App. 320, 521 P.2d 175 (1974).

A trial court’s determination of a motion to vacate a judgment under this rule will not be disturbed on appellate review in the absence of a clear abuse of discretion. Columbine Valley Constr. Co. v. Bd. of Dirs., 626 P.2d 686 (Colo. 1981).

The underlying goal in ruling on motions to set aside default judgments is to promote substantial justice. Whether substantial justice will be served by setting aside a default judgment on the ground of excusable neglect is to be determined by the trial court in the exercise of its sound discretion. Craig v. Rider, 651 P.2d 397 (Colo. 1982).

Where the moving party has delayed substantially in seeking to set aside a default judgment, relief is disfavored by the courts. Martinez v. Dixon, 710 P.2d 498 (Colo. App. 1985).

The trial court’s order on a motion for relief, based on a residuary clause covering extreme situations, may not be reversed absent an abuse of discretion. Fukutomi v. Siegel, 785 P.2d 147 (Colo. App. 1989).

To warrant a reversal, it must appear that there is an abuse of the court’s discretion. Browning v. Potter, 129 Colo. 448, 271 P.2d 418 (1954); Burr v. Allard, 133 Colo. 270, 293 P.2d 969 (1956); Ehrlinger v. Parker, 137 Colo. 514, 327 P.2d 267 (1958).

The determination of granting or denying relief under this rule will not be disturbed on review unless it clearly appears that there has been abuse of that discretion. Weeks v. Sigala, 32 Colo. App. 121, 509 P.2d 320 (1973).

Where service is not proper, judgment is void and may be challenged at any time. United Bank of Boulder, N.A. v. Buchanan, 836 P.2d 473 (Colo. App. 1992).

Discretion of the court in considering any application to vacate a default is controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to serve, and not to impede or defeat, the ends of justice. Dudley v. Keller, 33 Colo. App. 320, 521 P.2d 175 (1974).

A default judgment as to a party was properly set aside by the judge on the ground that he was not subjected to the personal jurisdiction of the court at the time of the judgment due to a lack of service of process because service had been served on his behalf on his alleged wife, but at the time of service, the couple had been divorced for over a month. Weaver Constr. Co. v. District Court, 190 Colo. 227, 545 P.2d 1042 (1976).

Default judgment was not void because process was adequately served and trial court therefore had personal jurisdiction over defendant. In case where process was properly served upon defendant’s registered agent pursuant to C.R.C.P. 4, agent’s failure to timely respond because of his own carelessness and negligence did not constitute excusable neglect. Therefore, trial court erred in setting aside the default judgment pursuant to sections (b)(1) and (b)(3) of this rule. Goodman Assocs., LLC v. WP Mtn. Props., LLC, 222 P.3d 310 (Colo. 2010).

Judgment must be final before time limitations apply. Where order of default was entered against one of two defendants but action remained pending and no C.R.C.P. 54(b) certification was obtained, timeliness of motion would be gauged in relation to date of dismissal of action against second defendant. United Bank of Boulder, N.A. v. Buchanan, 836 P.2d 473 (Colo. App. 1992).

Where a motion is not filed within six months after the default was entered, then, under section (b) of this rule, a trial court is correct in denying the motion to vacate the default. Browning v. Potter, 129 Colo. 448, 271 P.2d 418 (1954).

The trial court had no jurisdiction to hear, much less grant, a motion for relief from judgment filed more than six months after entry of judgment. Wesson v. Johnson, 622 P.2d 104 (Colo. App. 1980).

Seventeen years is not a “reasonable time”. Where for a period of more than 17 years one took no action to vacate or otherwise attack the validity of a default judgment, it can hardly be said that under such circumstances 17 years is a “reasonable time”. Haskell v. Gross, 145 Colo. 365, 358 P.2d 1024 (1961).

Petition to vacate such a judgment held filed in apt time. Senne v. Conley, 110 Colo. 270, 133 P.2d 381 (1943).

In cases such as this, a defendant must establish his grounds for relief by clear, strong, and satisfactory proof. Browning v. Potter, 129 Colo. 448, 271 P.2d 418 (1954); Riss v. Air Rental, Inc., 136 Colo. 216, 315 P.2d 820 (1957); Moskowitz v. Michaels Artists & Eng’r Supplies, Inc., 29 Colo. App. 44, 477 P.2d 465 (1970).

It is not sufficient to show that the neglect which brought about the default is excusable. Gumaer v. Bell, 51 Colo. 473, 119 P. 681 (1911); Riss v. Air Rental, Inc., 136 Colo. 216, 315 P.2d 820 (1957); Moskowitz v. Michaels Artists & Eng’r Supplies, Inc., 29 Colo. App. 44, 477 P.2d 465 (1970).

To vacate a default, a mere showing of excusable neglect is not sufficient. Burr v. Allard, 133 Colo. 270, 293 P.2d 969 (1956); Orebaugh v. Doskocil, 145 Colo. 484, 359 P.2d 671 (1961).

A defendant must show a meritorious defense to the action. Gumaer v. Bell, 51 Colo. 473, 119 P. 681 (1911); Riss v. Air Rental, Inc., 136 Colo. 216, 315 P.2d 820 (1957); Moskowitz v. Michaels Artists & Eng’r Supplies, Inc., 29 Colo. App. 44, 477 P.2d 465 (1970); Weeks v. Sigala, 32 Colo. App. 121, 509 P.2d 320 (1973).

The judge was acting within his jurisdiction under this rule when he set aside a default judgment on the ground of “excusable neglect” supported by a specific statement of meritorious defense. Weaver Constr. Co. v. District Court, 190 Colo. 227, 545 P.2d 1042 (1976).

A defense to the action “prima facie” meritorious must also appear. Burr v. Allard, 133 Colo. 270, 293 P.2d 969 (1956); Orebaugh v. Doskocil, 145 Colo. 484, 359 P.2d 671 (1961).

It must be stated with such fullness and particularity that the court can see it is substantial, not technical, meritorious, and not frivolous. Burr v. Allard, 133 Colo. 270, 293 P.2d 969 (1956); Orebaugh v. Doskocil, 145 Colo. 484, 359 P.2d 671 (1961).

Where there were no reasons proffered to the trial court as grounds for relief under section (b) other than youth and indifference, the trial court’s denial of motion to set aside default judgment was not an abuse of discretion. People in Interest of J.M.W., 36 Colo. App. 398, 542 P.2d 392 (1975).

It is not the duty of the trial court to relieve one of the consequences incident to the mistakes of his counsel. Self v. Watt, 128 Colo. 61, 259 P.2d 1074 (1953).

Where it is clear that defendants’ counsel was negligent and that such neglect was the primary cause for their failure, counsel’s neglect is inexcusable, but this neglect should not be imputed to the defendants. Coerber v. Rath, 164 Colo. 294, 435 P.2d 228 (1967).

Gross negligence on the part of counsel resulting in a default judgment is considered excusable neglect on the part of the client entitling him to have the judgment set aside. Temple v. Miller, 30 Colo. App. 49, 488 P.2d 252 (1971); Dudley v. Keller, 33 Colo. App. 320, 521 P.2d 175 (1974).

Gross negligence on the part of counsel, under certain circumstances, should be considered excusable neglect on the part of a client sufficient to permit the client to set aside a default judgment. Weeks v. Sigala, 32 Colo. App. 121, 509 P.2d 320 (1973).

Although a court recognizes the gross neglect of counsel, yet enters a default, it unwarrantly punishes defendants whose only dereliction is the misplacing of confidence in their attorney. Coerber v. Rath, 164 Colo. 294, 435 P.2d 228 (1967).

To hold that such reasons are inapplicable because a defendant failed to check the progress of the litigation is to make the client erroneously totally responsible for the attorney’s negligent failure to comply with the rules of civil procedure. Temple v. Miller, 30 Colo. App. 49, 488 P.2d 252 (1971).

Where one was, or should have been, aware that his interest in the action was adverse to another, his reliance on such individual does not constitute excusable neglect so as to justify vacating entry of default judgment. Moskowitz v. Michaels Artists & Eng’r Supplies, Inc., 29 Colo. App. 44, 477 P.2d 465 (1970).

Where the record discloses that the defendant himself was guilty of negligence separate and apart from that of his counsel, the alleged negligence of counsel would not be considered as excusable neglect for purpose of setting aside default judgment. Weeks v. Sigala, 32 Colo. App. 121, 509 P.2d 320 (1973).

The entry of a default judgment does not apply to a stipulated judgment. Where parties dealing at arm’s length have stipulated for the entry of a judgment, it is not a default judgment in the true sense of the word, but a stipulated judgment; consequently, there is no mistake, inadvertence, surprise or excusable neglect. Kopel v. Davie, 163 Colo. 57, 428 P.2d 712 (1967).

Where the parties to litigation, dealing at arm’s length, stipulate for the entry of a judgment of dismissal, and they do not claim mistake, inadvertence, surprise, or excusable neglect, nor are any of the parties to the action seeking to have the order set aside, that judgment is final. Columbia Sav. & Loan Ass’n v. District Court, 186 Colo. 212, 526 P.2d 661 (1974).

A default judgment may only be the subject of collateral attack when the trial court lacked jurisdiction over the parties or the subject matter. DeBoer v. District Court, 184 Colo. 112, 518 P.2d 942 (1974).

Where a default judgment has been entered and made final, it is not a proper subject of collateral attack particularly by strangers to the original action, although the rule prohibiting such attack applies to parties as well. DeBoer v. District Court, 184 Colo. 112, 518 P.2d 942 (1974).

Criteria to be utilized by court in ruling on a motion to vacate a judgment include whether the neglect that resulted in entry of judgment by default was excusable, whether the moving party has alleged a meritorious defense, and whether relief from the challenged order would be consistent with considerations of equity. Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112 (Colo. 1986); Dunton v. Whitewater West Recreation, Ltd., 942 P.2d 1348 (Colo. App. 1997); Goodman Assocs., LLC v. WP Mtn. Props., LLC, 222 P.3d 310 (Colo. 2010).

The preferred procedure is to consider all three criteria in a single hearing, as evidence relating to one factor might shed light on another and consideration of all three factors will provide the most complete information for an informed decision. Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112 (Colo. 1986); Dunton v. Whitewater West Recreation, Ltd., 942 P.2d 1348 (Colo. App. 1997).

Motion to vacate judgment under this rule on basis of excusable neglect and motion to set aside default judgment under C.R.C.P. 55(c) on the basis of failure to prosecute are sufficiently analogous to justify application of the same standards to either motion; thus, the same three criteria which are legal standard are applicable in both motions. Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112 (Colo. 1986).

In determining whether a party has established excusable neglect to obtain relief, the court should not impute gross negligence of an attorney to his client for the purpose of foreclosing the client from relief. Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112 (Colo. 1986).

Moving party must establish by factual averments, and not simply by legal conclusions, that claim previously dismissed was indeed meritorious and substantial. Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112 (Colo. 1986).

In determining whether relief would be consistent with equitable considerations, court should take into account promptness of moving party in filing motion, fact of any detrimental reliance by opposing party on order or judgment of dismissal, and any prejudice to opposing party if motion were to be granted, including impairment of party’s ability to adduce proof at trial in defense of claim. Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112 (Colo. 1986).

The mere existence of some negligence by client does not serve as per se basis to automatically deny relief, where motion was made based upon excusable neglect. Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112 (Colo. 1986).

Defendant failed to show excusable neglect where he failed to seek a continuance or communicate with the trial court in any manner while seeking to remove the case to federal court and failed to appear and participate at trial even though he knew the federal court had remanded the case back to state court. Blazer Elec. Supply Co. v. Bertrand, 952 P.2d 857 (Colo. App. 1998).

Rule as basis for jurisdiction. Welborn v. Hartman, 28 Colo. App. 11, 470 P.2d 82 (1970); Morehart v. Nat’l Tea Co., 29 Colo. App. 465, 485 P.2d 907 (1971).

Applied in Finegold v. Clarke, 713 P.2d 401 (Colo. App. 1985).