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Harriman v. Cabela's Inc.

Court of Appeals of Colorado, Fifth Division

March 24, 2016

David Harriman, Plaintiff-Appellant,
v.
Cabela's Inc., d/b/a Cabela's, Defendant-Appellee

          Mesa County District Court No. 13CV4227. Honorable Valerie J. Robison, Judge.

         The Law Firm of Alan G. Molk, P.C., Alan G. Molk, Greenwood Village, Colorado; The Fowler Law Firm, LLC, Timms R. Fowler, Fort Collins, Colorado, for Plaintiff-Appellee.

         Godfrey Johnson, P.C., Brett Godfrey, David R. Struthers, Englewood, Colorado, for Defendant-Appellee.

         Opinion by JUDGE BERNARD. Lichtenstein and Màrquez[*], JJ., concur.

          OPINION

         BERNARD, JUDGE.

         [¶ 1] Colorado case law holds that a litigant cannot file a C.R.C.P. 60 motion as a substitute for an appeal or to avoid C.R.C.P. 59(j). This appeal raises the following question: Should a C.R.C.P. 60(b)(1) motion, which alleged that a litigant did not timely respond to a C.R.C.P. 12(b)(5) motion because of excusable neglect, be deemed denied by operation of C.R.C.P. 59(j)? The facts of this case lead us to answer this question " no."

          [¶ 2] The plaintiff in this case, David Harriman, was injured when he was a customer testing a hunting bow at an archery range in a store that was operated by the defendant, Cabela's, Inc, d/b/a Cabela's. He sued the store. The trial court granted the store's C.R.C.P. 12(b)(5) motion.

         [¶ 3] The customer filed a C.R.C.P. 60(b)(1) motion that asked the trial court to set aside its judgment. The court denied the motion because it concluded that the motion to set aside had been deemed denied by operation of C.R.C.P. 59(j). The customer appealed. We reverse, and we remand the case for additional proceedings.

         I. Background

         A. Facts

         [¶ 4] The customer's complaint contains the following factual allegations.

         [¶ 5] The customer wanted to buy a bow for hunting game, so he went to the store in August 2011. He decided that he would test one bow by firing arrows at targets in the store's indoor archery range. He signed a liability waiver before he began the test. The waiver stated that (1) the store was not liable for any injuries that he might suffer from testing the bow; and (2) the customer assumed all responsibility for any such injuries.

         [¶ 6] The customer shot about nine arrows at targets without incident. Then the store's salesman recommended that " the length of the [bow's] draw be adjusted to better suit" the customer.

         [¶ 7] The customer agreed. This process took about an hour. The customer then resumed the test, although it is unclear whether he did so at the indoor archery range or near a sales counter.

         [¶ 8] When the customer had trouble drawing the bow, the salesman urged him to pull harder. The customer did so. Either the bowstring or one of the bow's pulleys broke, and a part of the bow struck the customer's left forearm, cutting it deeply. This cut caused some permanent impairment of the customer's arm, and it left him with a large, prominent scar.

         B. Procedural History

         [¶ 9] The customer filed this personal injury lawsuit against the store in April 2013. He asserted that the store had been negligent under several legal theories, and he asked for money damages. The store's answer denied that it was liable for the customer's injury.

         [¶ 10] In July 2013, the store filed a motion to dismiss the customer's complaint, relying on C.R.C.P. 12(b)(5). The customer did not file a timely response. In a written order, the trial court granted the motion to dismiss. The court decided that the waiver that the customer had signed insulated the store from liability. The trial court also thought that section 13-21-115, C.R.S. 2015, of Colorado's Premises Liability Act barred the customer's lawsuit. Granting another request by the store, the court ordered the customer to pay the store's attorney fees and costs.

         [¶ 11] On the same day that the court granted the motion to dismiss, the customer filed a document entitled " Motion to Set Aside Court's Order Dismissing this Action." In it, the customer asserted that the store had agreed that he could have more time to file a response to the C.R.C.P. 12(b)(5) motion. But, " due to an oversight," the customer had not asked the trial court for an extension. The motion to set aside did not cite any legal authority to support the customer's request.

         [¶ 12] The store filed a response to the motion to set aside. The response stated that the motion to set aside (1) was apparently based on C.R.C.P. 60(b); and (2) did not allege sufficient grounds that would authorize the trial court to grant the customer relief under C.R.C.P. 60(b).

         [¶ 13] In August 2013, even though the trial court had previously dismissed the customer's complaint and it had not ruled on the motion to set aside, the customer nonetheless filed a response to the store's C.R.C.P. 12(b)(5) motion to dismiss. It filed a " First Amended Complaint" a week later.

         [¶ 14] In October 2013, the store filed a motion that asked the trial court to determine the amount of attorney fees that the customer owed the store. (Recall that the court had ordered the customer to pay the store's attorney fees when it had granted the store's motion to dismiss the case.) The store contended that, under C.R.C.P. 59(j), the court should deem the motion to set aside denied because the court had not ruled on that motion within sixty-three days of when it was filed.

         [¶ 15] The customer promptly filed a response. He asserted that the motion to set aside was not subject to the time limits found in C.R.C.P. 59(j) because the motion was based on C.R.C.P. 60(b)(1).

         [¶ 16] In November 2013, the customer did two things. He filed a document entitled " Voluntary Status Report and Request for Ruling" with the trial court. And he filed an appeal in this court. In February 2014, a division of this court dismissed the customer's appeal with prejudice.

         [¶ 17] In August 2014, the trial court issued a written order. In it, the court concluded that, although the customer had asserted that he had filed the motion under C.R.C.P. 60(b)(1), the motion was subject to the time limits of C.R.C.P. 59(j). And, although the customer had filed the motion to set aside on the same day that the court granted the store's motion to dismiss, the court had not issued any orders concerning it until well after the sixty-three-day period established by C.R.C.P. 59(j). The court therefore decided that the motion to set aside was " deemed denied" by operation of C.R.C.P. 59(j).

         II. The Motion to Set Aside

         [¶ 18] The customer contends that the trial court erred when it concluded that his motion to set aside had been deemed denied by operation of C.R.C.P. 59(j). We agree.

         A. Standard of Review

         [¶ 19] We generally review a trial court's decision to grant or to deny a C.R.C.P. 60(b)(1) motion for an abuse of discretion. See Goodman Assocs., LLC v. WP Mountain Props., LLC, 222 P.3d 310, 314 (Colo. 2010). As is pertinent to this appeal, a court abuses its discretion when it rests its decision on a misunderstanding or a misapplication of the law. Genova v. Longs Peak Emergency Physicians, P.C., 72 P.3d 454, 458 (Colo.App. 2003).

         B. The Trial Court's Analysis

         [¶ 20] The trial court reasoned that the motion to set aside had been filed too late because " a motion pursuant to C.R.C.P. 60(b)(1) cannot be used to circumvent the limitations of C.R.C.P. 59(j)." The trial court based its analysis on the following sentences that appear in De Avila v. Estate of DeHerrera, 75 P.3d 1144, 1146 (Colo.App. 2003): " C.R.C.P. 60 is not a substitute for appeal, but instead is meant to provide relief in the interest of justice in extraordinary circumstances. Thus, a C.R.C.P. 60 motion generally cannot be used to circumvent the operation of C.R.C.P. 59(j)." (Citation omitted.)

         [¶ 21] The trial court recognized that De Avila also set forth exceptions to the general rule. The exceptions included when there was an " extreme situation" warranting relief under C.R.C.P. 60(b)(5) or when the judgment was void under C.R.C.P. 60(b)(3). De Avila, 75 P.3d at 1146. But these exceptions did not apply to the customer's motion to set aside.

         [¶ 22] The trial court added that three other opinions supported its approach. They were Diamond Back Services, Inc. v. Willowbrook Water & Sanitation District, 961 P.2d 1134, 1137 (Colo.App. 1997); Guevara v. Foxhoven, 928 P.2d 793, 795 (Colo.App. 1996); and Sandoval v. Trinidad Area Health Association, Inc., 752 P.2d 1062, 1063 (Colo.App. 1988).

         C. Our Analysis

         i. The Requirements of C.R.C.P. 59 and C.R.C.P. 60

         [¶ 23] We begin by comparing and contrasting the parts of C.R.C.P. 59 and C.R.C.P. 60 that are relevant to our analysis.

          [¶ 24] They have different purposes.

         [¶ 25] " The primary purpose of a [C.R.C.P. 59] 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 Marriage of Jones, 668 P.2d 980, 981 (Colo.App. 1983); see alsoMcDonald v. Zions First Nat'l Bank, N.A., 2015 COA 29, ¶ 36, 348 P.3d 957 ...


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