277 P.3d 847
Colo. Ct. App.2011Background
- Justi injured during a stay at Hi Country Haus Condominiums and sued RHO Condominium Association for premises liability under § 18-21-115, C.R.S. 2010.
- At trial, Justi presented witnesses including a VA records custodian, his brother, and an independent medical examiner, and testified himself.
- RHO moved for a directed verdict under C.R.C.P. 50, arguing no link between Justi’s injury and RHO and no evidence of unreasonable care.
- Justi sought to reopen the case to present ownership-related evidence (RHO ownership and management), claiming defense counsel would have called a witness.
- The court denied the motion to reopen and granted the directed verdict; Justi appealed and challenged the denial and later any purported Rule 60(b) relief.
- The appellate court affirmed the judgment and declined to award appellate attorney fees to RHO based on lack of frivolousness in Justi’s appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by denying reopening of evidence after resting | Justi sought to reopen to prove RHO ownership/connection | RHO argued lack of evidence linking RHO to the property and no basis to reopen | No reversible error; at minimum, harmless error even if reopened |
| Whether the denial of Justi’s Rule 60(b) motion was an abuse of discretion | Justi contends excusable neglect or misrepresentation warranted relief | RHO argues no grounds under 60(b) proven or misapplication of discretion | No abuse of discretion; grounds for relief not established |
| Whether appellate attorney fees should be awarded to RHO | Appeal lacked substantial merit to reopen evidence | Appeal frivolous due to lack of case law on reopening | Not frivolous; fees not awarded |
Key Cases Cited
- Rocky Mountain Animal Def. v. Colo. Div. of Wildlife, 100 P.3d 508 (Colo.App.2004) (trial court may permit post-resting evidence; harmless error standard)
- Rojhani v. Meagher, 22 P.3d 554 (Colo.App.2000) (harmless error assessment; substantial rights affected if outcome altered)
- Caldwell v. Tilford, 90 Ariz. 202, 367 P.2d 239 (Ariz.1961) (offer of proof required when moving to reopen; cures deficiencies)
- Alpert v. Villa Romano Homeowners Ass'n, 81 Cal.App.4th 1320, 96 Cal.Rptr.2d 364 (Cal.App.2000) (requirement of offer of proof to reopen; describe evidence and cure)
- Kay Found. v. S & F Towing Serv. of Staten Island, Inc., 31 A.D.3d 499, 819 N.Y.S.2d 765 (N.Y. App. Div.2006) (consider offer of proof, prejudice, and delay in reopening)
- Liberty Nat'l Bank v. Daly, 96 N.W.2d 897 (N.D.1959) (reopening denied where no offer of proof or basis shown)
- Davidson v. McClellan, 16 P.3d 233 (Colo.App.2001) (60(b) relief requires extraordinary circumstances; residuary relief limited)
- S.R. Condos., LLC v. K.C. Constr., Inc., 176 P.3d 866 (Colo.App.2007) (60(b)(5) remedies limited to extreme/extraordinary circumstances; not broad equity)
- Canton Oil Corp. v. Dist. Court, 731 P.2d 687 (Colo.1987) (illustrates 60(b)(5) extreme circumstances)