County District Court No. 13CV4227. Honorable Valerie J.
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.
Johnson, P.C., Brett Godfrey, David R. Struthers, Englewood,
Colorado, for Defendant-Appellee.
by JUDGE BERNARD. Lichtenstein and
Màrquez[*], JJ., concur.
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.
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,
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
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).
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.
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).
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).
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
[¶ 24] They have different
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 ...