April 19, 2019

Colorado Court of Appeals: C.R.C.P. 60(b)(1) Motion Incorrectly Deemed Denied by Operation of C.R.C.P. 59(j)

The Colorado Court of Appeals issued its opinion in Harriman v. Cabela’s Inc. on Thursday, March 24, 2016.

Motion to Dismiss—C.R.C.P. 12(b)(5)—Motion to Set Aside—C.R.C.P. 60(b)(1)—C.R.C.P. 59(j).

Plaintiff sued Cabela’s Inc. after he was injured while testing a hunting bow at an archery range in one of its stores. The trial court granted Cabela’s C.R.C.P. 12(b)(5) motion. Plaintiff filed a C.R.C.P. 60(b)(1) motion asking 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).

On appeal, plaintiff contended the trial court erred in concluding that his C.R.C.P. 60(b)(1) motion to set aside had been deemed denied by operation of C.R.C.P. 59(j). The Court of Appeals agreed. C.R.C.P. 59(j) states that the court must decide a C.R.C.P. 59 motion within 63 days of when it was filed or the motion is deemed denied. The C.R.C.P. 59(j) time limit, however, does not affect motions that are properly filed under C.R.C.P. 60. Plaintiff’s timely filed motion to set aside alleged that the store had agreed to his filing a response to the store’s C.R.C.P. 12(b)(5) motion beyond the regular time limit. The motion added that “due to an oversight” plaintiff had not informed the trial court of this agreement. This allegation generally falls within the scope of C.R.C.P. 60(b)(1) (mistake, inadvertence, surprise, or excusable neglect), and does not generally fall within the scope of C.R.C.P. 59(d) or (e). The trial court’s decision to deny the motion to set aside was based on a misunderstanding of the applicable law.

Cabela’s asserted that this appeal should be dismissed because of the Court of Appeals’ decision to dismiss a prior appeal in this matter. The Court disagreed, determining that the motion to set aside at issue in this appeal did not contravene the mandate issued by the Court in the prior appeal.

The order was reversed and the case was remanded to the trial court to hold an evidentiary hearing to consider plaintiff’s motion to set aside.

Summary and full case available here, courtesy of The Colorado Lawyer.

Print Friendly, PDF & Email

Speak Your Mind

*