2016 COA 43
Colo. Ct. App.2016Background
- Plaintiff David Harriman injured testing a hunting bow at defendant Cabela’s store; he had signed a liability waiver.
- Harriman sued for negligence in April 2018; Cabela’s moved to dismiss under C.R.C.P. 12(b)(5).
- Harriman did not timely respond to the 12(b)(5) motion; the trial court granted dismissal and awarded defendant fees.
- On the same day, Harriman filed a motion titled “Motion to Set Aside Court’s Order Dismissing this Action,” asserting an agreement with defendant for extra time and alleging excusable neglect; he characterized the motion under C.R.C.P. 60(b)(1).
- The trial court concluded the motion was deemed denied under C.R.C.P. 59(j) (63-day rule) and therefore refused to consider it; Harriman appealed.
- The appellate court reversed, holding the motion properly invoked C.R.C.P. 60(b)(1), was filed within C.R.C.P. 60’s reasonable/six-month window, and was not governed by C.R.C.P. 59(j); the case was remanded for an evidentiary hearing under the Goodman factors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a C.R.C.P. 60(b)(1) motion alleging excusable neglect is governed by C.R.C.P. 59(j) timing and therefore deemed denied if not decided within 63 days | Harriman: his motion was a timely C.R.C.P. 60(b)(1) motion (filed same day as judgment), so C.R.C.P. 59(j) does not apply | Cabela’s: the motion should be treated as a C.R.C.P. 59 motion or otherwise subject to 59(j), making it deemed denied and untimely | Court: Reversed trial court; 60(b)(1) motion not governed by 59(j) when it raises excusable neglect and was timely under 60(b); remand for fact-intensive Goodman analysis |
| Whether prior dismissed appeal bars reconsideration of the 60(b)(1) motion | Harriman: prior dismissal did not adjudicate merits of the 60(b) motion and did not negate trial court’s jurisdiction to entertain it | Cabela’s: prior dismissal and appellate mandate require treating the motion as resolved/untimely | Court: Prior dismissal for lack of jurisdiction left judgment intact and did not preclude trial court from hearing a timely 60(b)(1) motion; motion did not contravene mandate |
| Whether trial court must apply Goodman test before denying 60(b)(1) relief | Harriman: contends trial court must evaluate excusable neglect, meritorious claim, and equity | Cabela’s: argued procedural bars precluded merits consideration | Court: Trial court erred by not engaging Goodman fact-intensive balancing; remand required for evidentiary hearing |
| Whether appellate fees should be awarded to defendant | Harriman: N/A | Cabela’s: requested appellate fees and costs | Court: Denied defendant’s request for appellate fees and costs |
Key Cases Cited
- Goodman Assocs., LLC v. WP Mountain Props., LLC, 222 P.3d 310 (Colo. 2010) (sets three-factor Goodman test for excusable neglect under C.R.C.P. 60(b)(1))
- De Avila v. Estate of DeHerrera, 75 P.3d 1144 (Colo. App. 2008) (discusses limits on using C.R.C.P. 60(b)(5) to circumvent C.R.C.P. 59(j))
- E.B. Jones Construction Co. v. City & County of Denver, 717 P.2d 1009 (Colo. App. 1986) (describes C.R.C.P. 60 focus on new matter extrinsic to judgment)
- Canton Oil Corp. v. District Court, 731 P.2d 687 (Colo. 1987) (permits 60(b)(5) relief in extreme cases like horrific jury misconduct)
- Davidson v. McClellan, 16 P.3d 233 (Colo. 2001) (construes residuary 60(b)(5) as narrow, for extraordinary circumstances)
- Tyler v. Adams County Dep’t of Social Services, 697 P.2d 29 (Colo. 1985) (dismissal for lack of appellate jurisdiction leaves judgment as if not reached)