2026 CO 50
J.B., as legal guardian and personal representative of E.B., an adult with a disability, Petitioner
v.
MKBS, LLC d/b/a Metro Taxi, Inc. a/k/a Metro Transportation Planning and Solution Group and Jesus Manuel Ortiz. Respondents
No. 24SC747
Supreme Court of Colorado, En Banc
June 23, 2026
2
Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 23CA1415
Attorneys for Petitioner: Burg Simpson Eldredge Hersh
&Jardine, P.C. Jessica B. Prochaska Jessica L. Breuer D.
Dean Batchelder Englewood, Colorado
Attorneys for Respondent MKBS, LLC d/b/a Metro Taxi, Inc.
a/k/a Metro Transportation Planning and Solution Group:
Harris, Karstaedt, Jamison &Powers, P.C. Jamey W. Jamison
Mark A. Sares Englewood, Colorado
3
Attorneys for Respondent Jesus Manuel Ortiz: Squire Patton
Boggs (US) LLP Keith Bradley Kayla Marie Mendez Denver,
Colorado Squire Patton Boggs (US) LLP Samuel Ballingrud
Washington, District of Columbia
JUSTICE HOOD delivered the Opinion of the Court, in which
JUSTICE BOATRIGHT, JUSTICE GABRIEL, JUSTICE SAMOUR, JUSTICE
BERKENKOTTER, and JUSTICE BLANCO joined. CHIEF JUSTICE
MARQUEZ dissented.
4
OPINION
HOOD,
JUSTICE.
¶1
Jesus Manuel Ortiz was accused of sexually assaulting E.B.,
whom he regularly drove to activities as part of his
employment with MKBS, LLC ("MKBS"), a taxi company.
E.B.'s legal guardian, J.B., [1] sued both Ortiz and MKBS;
however, Ortiz never responded to the complaint, and the
district court entered a clerk's default against him.
¶2
During J.B.'s subsequent trial against MKBS, the court
allowed Ortiz to testify contrary to the facts established by
his default, and the jury found in MKBS's favor. Then,
upon Ortiz's request, the court set aside the default and
entered judgment in Ortiz's favor.
¶3
J.B. appealed. We agree with the division majority below that
the district court properly (1) allowed Ortiz to testify at
MKBS's trial (despite the default), (2) set aside the
default judgment entered against Ortiz, and (3) entered
judgment in his favor consistent with MKBS's jury
verdict. Therefore, we affirm the judgment of the court of
appeals.
5
I.
Facts and Procedural History
¶4
J.B. is the personal representative and legal guardian of
E.B., a cognitively impaired, blind adult who uses a
wheelchair. For several years, E.B. used MKBS to transport
her to a day-program center. Ortiz was E.B.'s regular
driver for a few months, and E.B. alleged that, during one of
her trips with Ortiz, he sexually assaulted her.
¶5
J.B. filed suit against MKBS and Ortiz based on the alleged
sexual assault. She asserted claims against Ortiz for
outrageous conduct, intentional infliction of emotional
distress, battery, and assault. She also asserted claims
against MKBS for negligent hiring and retention, negligent
supervision, negligence, negligent infliction of emotional
distress, respondeat superior liability, and outrageous
conduct. MKBS filed a timely answer denying the claims
against it. Ortiz failed to respond to the complaint, and the
district court granted J.B.'s motion for entry of default
against Ortiz pursuant to C.R.C.P. 55(a).
¶6
The effect of the default was that Ortiz was deemed to have
admitted the material allegations in J.B.'s complaint.
See Pinkstaff v. Black &Decker (U.S.) Inc., 211
P.3d 698, 703 (Colo. 2009). The order granting the entry of
default directed J.B. to file a motion for default judgment
against Ortiz within thirty-five days. J.B., however,
didn't move for a default judgment for almost two years
(after the civil trial against MKBS).
6
¶7
While the civil case was pending, Ortiz faced criminal
charges for the same incident. J.B. and MKBS conferred and
jointly filed a motion to stay the civil proceedings pending
resolution of Ortiz's criminal trial due to impediments
to discovery and the development of evidence for both
parties. The district court granted the motion. The criminal
case went to trial, and a jury acquitted Ortiz. In the civil
case, J.B. filed, and the court granted, a motion to exclude
evidence of Ortiz's acquittal in the criminal case.
¶8
At a pretrial conference, MKBS indicated that it planned to
call Ortiz to testify in its defense. J.B. moved to preclude
Ortiz from making any arguments or presenting testimony that
would contradict the factual allegations he admitted by
default. The district court denied the motion, concluding
that J.B. knew she had to prove liability as to MKBS and
failed to provide authority to support her claim that
Ortiz's default admissions were binding on MKBS or that
MKBS was precluded from introducing Ortiz's testimony as
it related to MKBS's liability.
¶9
The jury trial began, but the court quickly declared a
mistrial because Ortiz was at the courthouse talking near and
with prospective jurors about the lawsuit and the fact that
he was accused of sexual assault. The court reset the trial
to begin a couple of months later.
7
¶10
At trial, Ortiz testified for MKBS and denied sexually
assaulting E.B. He also acknowledged that he was in default
and aware that MKBS's lawyer was not representing him in
the civil case.
¶11
Before closing arguments, the district court read, among
others, the following jury instruction aloud in open court:
When a defendant has failed to defend himself in a lawsuit, a
default shall enter against him. An entry of default
establishes a defendant's liability and the allegations
in the plaintiff's complaint concerning the defaulting
defendant are deemed admitted as to that defendant. An entry
of default, however, is not an admission regarding damages.
Jesus Ortiz is a defaulting defendant.
The
jury returned a verdict in MKBS's favor, and on a special
verdict form, the jury indicated that, "with respect to
all claims against [MKBS]," Ortiz didn't sexually
assault E.B. The jury also concluded that E.B. didn't
have any injuries, damages, or losses from the alleged sexual
assault.
¶12
About a month after the trial, J.B. moved for entry of a
default judgment against Ortiz pursuant to C.R.C.P. 55(b).
The court entered judgment against Ortiz in the amount of
almost $700,000 based on the evidence that J.B. had presented
during MKBS's trial.
¶13
Then, Ortiz, filing pro se, moved to set aside the default
judgment. The district court granted Ortiz's motion,
finding that he had established excusable neglect. J.B. moved
for reconsideration, and the court denied J.B.'s motion.
8
¶14
Ortiz, now represented by counsel, then moved for entry of
judgment in his favor. After a hearing, the court granted the
motion. The court relied on the verdict from MKBS's jury
trial in issuing its order. And because the jury had found
that E.B. had no injury, damages, or losses from the alleged
sexual assault, the court concluded that the determination of
damages had been fully resolved.
¶15
J.B. appealed, and in a split decision, a division of the
court of appeals affirmed the district court's judgment.
J.B. v. MKBS, LLC, 2024 COA 117, ¶ 89, 563 P.3d
189, 203. Judge Schutz dissented, expressing concern that the
majority opinion "reward[ed] a defendant who failed to
comply with litigation deadlines, and depriv[ed] a plaintiff
of their opportunity to try their claims against the
defaulted defendant." Id. at ¶ 92, 563
P.3d at 203 (Schutz, J., dissenting).
¶16
J.B. petitioned this court for certiorari review, and we
granted her petition.[2]
9
II.
Analysis
¶17
We begin by addressing the issue of preservation and
identifying the standard of review. Next, we discuss whether
a defaulting defendant may testify at a non-defaulting
codefendant's trial contrary to facts deemed admitted by
his default. Then, we review the factors a court must balance
before setting aside a default judgment and apply them to the
facts of this case. Finally, we analyze whether the district
court erred by entering judgment in favor of Ortiz based on
the jury verdict in MKBS's trial.
A.
Preservation and Standard of Review
¶18
Ortiz argues that J.B. did not preserve the issue of whether
a defaulting defendant may testify at a non-defaulting
codefendant's trial. However, we agree with the division
majority that J.B. preserved this issue through her motion
arguing that she would be unfairly prejudiced if the court
permitted Ortiz to testify. See J.B., ¶ 34, 563
P.3d at 195.
¶19
We review a district court's decision on whether to allow
someone to testify for an abuse of discretion. See Murray
v. Just In Case Bus. Lighthouse, LLC, 2016 CO 47M,
¶¶ 32, 41, 374 P.3d 443, 453, 455. We also review a
district court's order setting aside a default judgment
for an abuse of discretion. McMichael v. Encompass PAHS
Rehab. Hosp., LLC, 2023 CO 2, ¶ 12, 522 P.3d 713,
719. A district court abuses its discretion when its decision
is based on a misapplication or misinterpretation
10
of the law, or is otherwise manifestly arbitrary,
unreasonable, or unfair. People v. West, 2025 CO 61,
¶ 13, 578 P.3d 832, 835; People v. Chavez, 2020
COA 80M, ¶ 8, 486 P.3d 377, 378.
¶20
Whether a defaulting party's testimony is admissible in a
non-defaulting defendant's trial and whether a defaulting
defendant is entitled to judgment in his favor to avoid
inconsistent adjudications are questions of law, which we
review de novo. See Dickinson v. Lincoln Bldg.
Corp., 2015 COA 170M, ¶ 21, 378 P.3d 797, 804.
B.
Permitting a Defaulting Defendant to Testify at a
Non-Defaulting Codefendant's Trial
¶21
Rule 55 governs the entry of default judgments. Under Rule
55(a), a clerk shall enter a default "[w]hen a party
against whom a judgment for affirmative relief is sought has
failed to plead or otherwise defend." An entry of
default "constitutes an admission by the defendant of
the material allegations contained in the complaint, and the
only remaining issue to be determined is the amount of
damages." Pinkstaff, 211 P.3d at 703; see
also Kwik Way Stores, Inc. v. Caldwell, 745 P.2d 672,
678 (Colo. 1987) (explaining that an entry of "default
establishes liability but does not fix the amount of
damages" (citation omitted)). The plaintiff may then
move for a default judgment to be entered, after which the
court will determine damages and, if needed, may hold a
hearing to do so. C.R.C.P. 55(b)(1). Defaulting defendants
may not challenge their liability at a Rule 55(b)(1) damages
11
hearing. Dickinson, ¶ 37, 378 P.3d at 806.
Unless a default is set aside, a defendant is precluded from
"urging anything contrary to the complaint."
Bettcher v. State ex rel. Att'y Gen., 344 P.2d
969, 971 (Colo. 1959). In other words, a defaulting defendant
may not testify or present evidence at a damages hearing that
is contrary to the factual basis he is deemed to have
admitted by the entry of default. ¶22 The Rules are
silent about the use of a defaulting defendant's
testimony in other proceedings.
¶23
For two reasons, the division majority held that the district
court didn't abuse its discretion by allowing MKBS to
call Ortiz as a witness: (1) Ortiz's testimony was
relevant to the central question of whether MKBS was liable
to J.B., and MKBS's ability to defend itself would be
materially prejudiced if Ortiz was prevented from testifying;
and (2) Ortiz didn't testify in his capacity as a
codefendant and didn't challenge his own liability under
the default—he was a subpoenaed witness in a
non-defaulting defendant's trial. J.B.,
¶¶ 37-39, 44-46, 563 P.3d at 196-97. J.B. counters
that allowing defaulting defendants to testify about their
liability would undercut the reasons for default. We agree
with the division majority that the district court didn't
abuse its discretion.
¶24
Defendants are generally allowed to defend themselves with
the best evidence available, subject to the limits imposed by
constitutions, rules, and statutes. See CRE 402
("All relevant evidence is admissible, except as
otherwise
12
provided by the Constitution of the United States, by the
Constitution of the State of Colorado, by these rules, or by
other rules prescribed by the Supreme Court, or by the
statutes of the State of Colorado."); see also Pub.
Utils. Comm'n v. Donahue, 335 P.2d 285, 291 (Colo.
1959) (stating that parties should be afforded a fair
opportunity to present their case and submit all pertinent
facts). "The truthseeking function of our legal system
is thwarted . . . if the finder of fact is denied [material]
evidence at trial." Warembourg v. Excel Elec.,
Inc., 2020 COA 103, ¶ 1, 471 P.3d 1213, 1217.
Accordingly, a non-defaulting codefendant may call a
defaulting defendant to testify, as long as doing so
isn't prohibited by other sources of law. See Henry
v. Oluwole, 108 F.4th 45, 49-50 (2d Cir. 2024)
(concerning a defaulting employee testifying at his
employer's trial for claims deriving from the
employee's conduct).
¶25
Our conclusion isn't novel. For example, in
Henry, the plaintiff alleged that her doctor
sexually assaulted her. Id. at 49. She asserted
numerous claims against the doctor and the hospital where he
worked at the time of the alleged assault. Id. The
doctor failed to respond to the complaint, and the court
entered a default against him. Id. At the subsequent
trial against the hospital, the doctor was allowed to
testify, and the jury found that he hadn't assaulted the
plaintiff, absolving the hospital of liability. Id.
at 50.
13
¶26
Just as the hospital in Henry relied on the
doctor's testimony to defend against the sexual assault
allegations, MKBS called Ortiz to defend itself. Therefore,
we find this federal precedent instructive. See Ferraro
v. Frias Drywall, LLC, 2019 COA 123, ¶ 15, 451 P.3d
1255, 1259 (explaining that Colorado's default judgment
rule—Rule 55—is similar to its federal
counterpart, so we may rely on federal cases for guidance in
interpreting the rule); see also Brown v. Walker Com.,
Inc., 2022 CO 57, ¶ 15, 521 P.3d 1014, 1018. Ortiz
was one of only two people present at the time of the alleged
sexual assault, so MKBS would've been prejudiced if it
hadn't been allowed to call him as a witness. See
People v. Jackson, 2018 COA 79, ¶ 51, 474 P.3d 60,
72 (stating that the jury's truth-finding function and
the interests of justice are better served by admitting
observations from someone who was a firsthand witness to the
event), aff'd, 2020 CO 75, 472 P.3d 553.
¶27 Additionally, the clerk's entry of default
against Ortiz constituted an admission of the facts alleged
in the complaint, but it wasn't a judgment on the merits
of the case. We have a long-established preference for
resolving cases on the merits rather than through default
judgments whenever possible. See McMichael, ¶
11, 522 P.3d at 718-19. Prohibiting MKBS from introducing
Ortiz's firsthand testimony because of an entry of
default against Ortiz would subvert this preference. Allowing
Ortiz to testify promoted the truth-seeking function of our
legal system.
14
¶28
Furthermore, although defaulting defendants are prohibited
from challenging their liability at a Rule 55(b)(1) damages
hearing, Dickinson, ¶ 37, 378 P.3d at 806,
there is no rule that prevents a defaulting defendant from
testifying as a witness at a different defendant's trial.
The trial here was limited in scope to determining MKBS's
liability and damages. Ortiz's liability to J.B.
wasn't at issue in this trial; he was testifying as a
subpoenaed witness (not a codefendant), and the jury was
instructed that he was deemed liable for the sexual assault
by virtue of his default.
¶29
Therefore, we agree with the division majority that the
district court didn't abuse its discretion by allowing
Ortiz to testify at MKBS's trial even though his
testimony contradicted the facts admitted by his default.
See J.B., ¶ 48, 563 P.3d at 197.
C.
Setting Aside a Default Judgment
¶30
Default judgment is disfavored and should be imposed only in
extreme circumstances. McMichael, ¶ 11, 522
P.3d at 718. "A judgment by default is not designed to
be a device to catch the unwary or even the negligent."
R.F. v. D.G.W., 560 P.2d 837, 839 (Colo. 1977). And
so, "when doubt exists as to whether a default should be
granted or vacated, the doubt should be resolved in favor of
the defaulting party." Henry, 108 F.4th at 51
(quoting Enron Oil Corp. v. Diakuhara, 10 F.3d 90,
96 (2d Cir. 1993)).
15
¶31
Rule 55(c) allows a court to set aside a default judgment in
accordance with C.R.C.P. 60(b). Under Rule 60(b), the
defaulting party has the burden to prove by clear and
convincing evidence that the court should grant the motion to
set aside a default judgment. Goodman Assocs., LLC v. WP
Mountain Props., LLC, 222 P.3d 310, 315 (Colo. 2010). A
court may set aside a default judgment if the defaulting
party establishes excusable neglect for its failure to
respond. C.R.C.P. 60(b). A court should consider three
factors in determining whether to set aside a default
judgment for excusable neglect: "(1) whether the neglect
that resulted in entry of judgment by default was excusable;
(2) whether the moving party has alleged a meritorious claim
or defense; and (3) whether relief from the challenged order
would be consistent with considerations of equity."
Goodman, 222 P.3d at 319. Because resolution of a
dispute on the merits is favored over a default judgment,
courts should liberally construe these factors in favor of
the defaulting party. Id. at 320.
¶32
The division majority held, and we agree, that the district
court "did not abuse its discretion by setting aside the
default judgment entered against Ortiz because it properly
considered the three C.R.C.P. 60(b) factors."
J.B., ¶ 56, 563 P.3d at 198.
¶33
First, the division majority agreed with the
district court's finding that Ortiz's failure to
respond to J.B.'s complaint was excusable because he was
16
legitimately confused about whether an attorney represented
him. Id. at ¶¶ 57, 64-65, 563 P.3d at
198-99. The district court reasonably relied on Ortiz's
explanation in his motion to set aside the default, in which
he said that he believed that MKBS's attorneys
represented him because the incident happened during his
employment. Id. at ¶¶ 62, 64, 563 P.3d at
199. Additionally, Ortiz explained that, because he had a
public defender represent him during his criminal trial and
because he was acquitted, he was confused as to what actions
he needed to take in the civil case. Id. at ¶
57, 563 P.3d at 198.
¶34
We agree with the division majority that the district court
properly applied an objective test in finding that
Ortiz's assumptions were reasonable. Id. at
¶ 62, 563 P.3d at 199. Excusable neglect hinges on
whether a reasonably careful person would have similarly
neglected a duty. Goodman, 222 P.3d at 319.
"Common carelessness and negligence do not amount to
excusable neglect." Id. (quoting In re
Weisbard, 25 P.3d 24, 26 (Colo. 2001)). But a reasonably
careful person in Ortiz's situation could have believed
that his employer's counsel represented him because the
civil case arose out of an event that occurred while Ortiz
was on the job. And although Ortiz testified at trial that he
understood that MKBS's attorney didn't represent him,
he didn't say when he came to this understanding. The
district court noted that Ortiz didn't appear to have a
sophisticated grasp of the legal process, and it was
therefore reasonable for him to believe that his
employer's
17
counsel would also be representing him. We conclude that the
district court didn't abuse its discretion by concluding
that, under these circumstances, a reasonably careful person
might have similarly neglected the duty to respond to the
complaint.
¶35
Second, we agree with the division majority that the
district court didn't abuse its discretion by concluding
that the outcome of the MKBS trial indicated that Ortiz had a
meritorious defense. See J.B., ¶¶ 58, 66,
563 P.3d at 198-99. At MKBS's trial, the jury found that
Ortiz didn't assault E.B. and that E.B. didn't have
any injuries, damages, or losses from the alleged sexual
assault. Id. at ¶ 58, 563 P.3d at 198. He was
also acquitted of all criminal charges. Id.
¶36
Third, in determining whether setting aside a
default judgment would be consistent with considerations of
equity, a court should "take into account the promptness
of the moving party in filing the [R]ule 60(b) motion, the
fact of any detrimental reliance by the opposing party on the
order or judgment of dismissal, and any prejudice to the
opposing party if the motion were to be granted."
Goodman, 222 P.3d at 319 (quoting Buckmiller v.
Safeway Stores, Inc., 727 P.2d 1112, 1116 (Colo. 1986)).
Here, the division majority held that the district court
properly concluded that the considerations of equity weighed
in Ortiz's favor because Ortiz filed his motion to set
aside the default only three weeks after its entry and,
18
although his actions caused a mistrial, when given
instructions by the court, he complied with them. See
J.B., ¶ 60, 563 P.3d at 198-99.
¶37
The division majority was also unpersuaded by J.B.'s
argument that it would be unfair to set aside the default
because she had relied on it. Id. at ¶¶
67-68, 563 P.3d at 199-200. The division majority noted that
J.B. waited until after the MKBS trial to move for default
judgment against Ortiz despite the court's entry of
default two years earlier. Id. at ¶ 68, 563
P.3d at 199-200. A motion to set aside a judgment under Rule
60(b) is used to set aside a default judgment issued
under Rule 55(b), not to set aside a clerk's
entry of default under Rule 55(a). So, in
determining whether J.B. detrimentally relied on the default
against Ortiz, the district court correctly looked at the
default judgment entered after the trial in 2021, not the
clerk's default entered in 2019.
¶38
Even if we were to consider J.B.'s reliance on the
clerk's entry of default in 2019, any prejudice to her
was minimal. J.B. knew that MKBS planned on calling Ortiz to
testify, and she was able to present evidence about the
alleged sexual assault and to cross-examine Ortiz.
¶39
Regarding the concern about J.B.'s expenses, had Ortiz
timely answered J.B.'s complaint, she would have incurred
similar costs to those already incurred in her case against
MKBS, so setting aside the default would not substantially
prejudice her. See Henry, 108 F.4th at 52-53
("[I]t must be shown that delay will
19
result in the loss of evidence, create increased difficulties
of discovery, or provide greater opportunity for fraud and
collusion." (quoting Davis v. Musler, 713 F.2d
907, 916 (2d Cir. 1983))). And the division majority deemed
the expense that J.B. might incur in a trial on the merits of
her claim against Ortiz secondary to the other factors.
J.B., ¶ 60, 563 P.3d at 198. We therefore agree
with the division majority that the district court didn't
abuse its discretion by concluding that the considerations of
equity weighed in Ortiz's favor.
D.
Entering Judgment in Ortiz's Favor
¶40
We agree with the United States Supreme Court that it would
be "unseemly and absurd, as well as unauthorized by
law" to allow a default judgment to create an
incongruity with a judgment on the merits. Frow v. De La
Vega, 82 U.S. 552, 554 (1872); see also In re Water
Rts. of Elk Dance Colo., LLC, 139 P.3d 660, 667 (Colo.
2006) (explaining that avoiding inconsistent judgments
promotes reliance on the judicial system). So, we, like a
majority of federal courts, adopt and expand the rule from
Frow, which "prohibits a default judgment that
is inconsistent with a judgment on the merits,"
Moore v. Booth, 122 F.4th 61, 67 (2d Cir. 2024)
(quoting Henry, 108 F.4th at 53), as long as
"the defendants are 'similarly situated' or have
'closely related defenses' even if not jointly
liable," id. See Schenck v. Van Ningen, 719
P.2d 1100, 1102 (Colo.App. 1986). Therefore, when a jury
verdict conflicts with the
20
allegations in a plaintiff's complaint, a default
judgment based on those allegations should be vacated.
Henry, 108 F.4th at 56.
¶41
Again, we find the Second Circuit's reasoning in
Henry helpful. As in Henry, a judgment
against Ortiz would directly conflict with the jury verdict
entered at the conclusion of the MKBS trial, finding that
Ortiz hadn't sexually assaulted E.B. and that E.B. had no
injuries, damages, or losses from the alleged sexual assault.
See Henry, 108 F.4th at 55-56, 63 (applying the rule
from Frow, the court ordered the district court to
enter judgment in favor of the doctor because the jury from
the codefendant hospital's trial concluded that the
doctor hadn't sexually assaulted the plaintiff). Similar
to the plaintiff in Henry, who had the opportunity
to examine and challenge the doctor's version of the
alleged sexual assault and present essentially the same
evidence at the hospital's trial that she would have
presented in a trial against the doctor, 108 F.4th at 54,
J.B. had the same opportunity to present evidence about the
alleged sexual assault and cross-examine Oritz in the trial
against MKBS as she would have had in a trial against Ortiz.
¶42
Therefore, given the preference for a judgment on the merits
over one entered by default and to avoid the entry of
inconsistent judgments, we conclude that the district court
didn't abuse its discretion by entering judgment in favor
of Ortiz.
21
III.
Conclusion
¶43
We affirm the judgment of the court of appeals.
CHIEF
JUSTICE MARQUEZ dissented.
22
CHIEF
JUSTICE MARQUEZ, dissenting.
¶44
As Judge Schutz observed in his dissent below, this case
"requires us to make difficult choices balancing the
tension between the desire for entering consistent judgments,
holding defaulted parties accountable, and ensuring parties
an opportunity to pursue their claims." J.B. v.
MKBS, LLC, 2024 COA 117, ¶ 90, 563 P.3d 189, 203
(Schutz, J., dissenting). The majority strikes the balance
today in a way that not only fails to hold Jesus Manuel Ortiz
accountable for his default but ultimately rewards him for
the very conundrum he created. Indeed, by upholding the entry
of judgment in Ortiz's favor—a judgment that can be
directly traced to Ortiz's improper testimony contrary to
facts admitted through his default—the majority also
simultaneously deprives the plaintiff of any opportunity to
try her claims against Ortiz. All told, this is a startling
outcome for a defendant who defaulted, and for a plaintiff
who played by the rules.
¶45
Today's outcome undermines the stability and
predictability of the rules of procedure that undergird our
legal system. Moreover, this outcome is unnecessary, assuming
the goal was to strike a fair balance between the interests
of the plaintiff, J.B., Ortiz, and MKBS, LLC
("MKBS").
¶46
Importantly, the claims against MKBS did not require the jury
to resolve the question of whether a sexual assault occurred.
While MKBS may have preferred to have Ortiz testify that he
did not sexually assault E.B., his testimony was not, in
23
fact, legally necessary to MKBS's defense. The district
court nevertheless allowed Ortiz to testify as a
witness at MKBS's trial to facts directly
contrary to the admissions made through his default. This
error set in motion a chain of events that ultimately allowed
Ortiz to not only escape his own default but to ultimately
claim judgment in his favor as a party on the merits
of J.B.'s claims—all without ever facing a trial on
those claims.
¶47
The majority blesses this outcome, Maj. op. ¶ 3, and
along the way, misapplies the narrow rule in Frow v. De
La Vega, 82 U.S. 552, 554 (1872), while simultaneously
ignoring the salient language from that decision emphasizing
that a defaulting defendant is not entitled to "adduce .
. . evidence" or "be heard" at a proceeding
against a codefendant or to "appear in it in any
way."
¶48
For these reasons, I respectfully dissent.
I.
The Majority Misapplies Frow
¶49
The majority relies on Frow to justify entering
judgment in Ortiz's favor, reasoning that Frow
"prohibits a default judgment that is inconsistent with
a judgment on the merits." Maj. op. ¶ 40 (quoting
Moore v. Booth, 122 F.4th 61, 67 (2d Cir. 2024)).
But the decision in Frow stands for a narrow rule
applicable to situations involving joint
liability—which is not the case here.
24
¶50
In Frow, the plaintiff alleged a joint conspiracy by
several defendants, including Frow, to defraud the plaintiff
of a tract of land. 82 U.S. at 552-53.[1] Frow failed to
respond to the complaint and the court entered a decree
against him. Id. at 553. While Frow's appeal was
pending, a bench trial proceeded against the nondefaulting
defendants, and the court ultimately ruled in their favor.
Id. In resolving Frow's appeal, the Supreme
Court observed that "in such a case as this," the
incongruent judgments (one against Frow and another in favor
of all the other codefendants regarding title to the same
property) created an "unseemly and absurd"
situation. Id. at 554.
¶51
The Court then explained the procedure to be followed in such
cases: "[W]here a bill makes a joint charge
against several defendants, and one of them makes default,
[the proper procedure] is simply to enter a default . . .
against him, and proceed with the cause upon the answers of
the other defendants." Id. (emphasis added).
The Court reasoned that if the case is then decided against
the plaintiff on the merits, the case should be
"dismissed as to all the defendants alike—the
defaulter as well as the others"—and vice versa.
Id.
25
¶52
Frow thus sought to avoid the specific outcome where
"there might be one decree of the court sustaining the
charge of joint fraud committed by the defendants;
and another decree disaffirming the said charge, and
declaring it to be entirely unfounded, and dismissing the
[plaintiff's] bill." Id. (emphasis added).
In other words,
Frow stands for the narrow rule that a default
judgment may not be entered against one of several defendants
(1) when the theory of recovery is one of true joint
liability, such that, as a matter of law, no one defendant
may be liable unless all defendants are liable, or (2) when
the nature of the relief demanded is such that, in order to
be effective, it must be granted against each and every
defendant.
10 Moore's Federal Practice—Civil §
55.36[2], LEXIS (database updated 2026).
¶53
Frow's narrow rule is simply inapplicable here.
The claims against MKBS that were submitted to the jury in
this case (negligence, negligent supervision, negligent
retention, and negligent infliction of emotional distress) do
not involve joint and several liability with Ortiz. And
importantly, a jury could find MKBS not liable for such
claims (i.e., not negligent, or not a cause of the
plaintiff's damages) without having to resolve the
question of whether a sexual assault occurred. In other
words, while MKBS preferred to contest that the assault
occurred, it was not legally necessary for it to do so to
avoid liability. Enforcing
26
the consequence of Ortiz's default would not have
deprived MKBS of a meaningful opportunity to defend the case
against it.[2]
¶54
Instead, the majority concludes that "a non-defaulting
codefendant may call a defaulting defendant to testify, as
long as doing so isn't prohibited by other sources of
law," Maj. op. ¶ 24, and that "there is no
rule that prevents a defaulting defendant from testifying as
a witness at a different defendant's trial,"
id. at ¶ 28. But in fact, Frow
expressly prohibits this.
¶55
Indeed, the Court in Frow emphasized that a
defaulting defendant is "not . . . entitled" to
"appear in [the proceeding] in any way. He can
adduce no evidence, he cannot be heard at
the final hearing." 82 U.S. at 554 (emphases added).
¶56
Thus, under Frow, the district court erred by
permitting Ortiz to testify in this case at all, let alone
testify contrary to the facts he admitted by default. As
Judge Schutz explained,
The [division] majority's rationale gives Ortiz the
benefit of the Frow rule without adhering to the
basic precept that any judgment entered in favor of the
remaining defendants must be obtained without the
participation of the defaulted defendant. And in doing so,
the
27
majority approves a process that is contrary to the
principles of consistency, accountability, and fairness that
it seeks to promote.
J.B., ¶ 104, 563 P.3d at 206 (Schutz, J.,
dissenting) (footnote omitted).
II.
The Initial Error Under Frow Is Then
Compounded
¶57
Having taken this wrong turn at the outset, the majority,
following the courts below, then compounds this error in
multiple ways.
¶58
First, the district court correctly instructed the jury that
Ortiz, as a defaulting defendant, was liable to J.B. and a
cause of her damages, if any. This was appropriate given that
the court had already determined that Ortiz's default
established a legally binding admission. But then, the court
contradicted its own instructions by presenting the jury with
a special verdict form asking it to determine whether Ortiz
sexually assaulted E.B.[3] Importantly, neither the jury
instructions nor the special verdict form contained any claim
for relief against Ortiz, yet the district court
later relied on Ortiz's testimony and the jury's
responses to the special verdict form to determine that Ortiz
had a meritorious defense justifying setting aside his
default judgment.
28
¶59
The majority makes the same mistake. It concludes that the
district court properly permitted Ortiz to testify contrary
to the facts he admitted by default under C.R.C.P. 55 by
reasoning that "Ortiz's liability to J.B. wasn't
at issue in this trial; he was testifying as a subpoenaed
witness (not a codefendant)." Maj. op. ¶ 28. But
then, the majority affirms the division's reasoning
allowing Ortiz to effectively leverage that testimony and the
jury's special verdict finding to assert that he had a
meritorious defense as a defaulting party under
C.R.C.P. 60(b). Maj. op. ¶ 35 (agreeing with the
division that the district court did not abuse its
discretion); J.B., ¶ 58, 563 P.3d at 198
(explaining that the district court did not abuse its
discretion when "the court found that Ortiz
'asserted a meritorious defense, namely that he did not
assault [E.B.].'" (alteration in original)). Thus,
the majority allows Ortiz's testimony at MKBS's trial
specifically because Ortiz's liability is not at issue
with respect to the claims against MKBS—but then
permits Ortiz to use that very testimony and the resulting
special verdict to directly contest his liability under
C.R.C.P. 60(b).
¶60
Finally, as if setting aside the default judgment were not
enough, instead of allowing the plaintiff to move forward
with her claims, the majority affirms the lower courts'
additional final step of affirmatively entering judgment in
Ortiz's favor on those claims, reasoning that
Frow requires this result to avoid inconsistent
29
judgments. Maj. op. ¶¶ 40, 42. Yet for the reasons
stated above, the rule of Frow is inapplicable here.
¶61
None of this was necessary. As Judge Schutz explains, the
inconsistency the majority seeks to remedy could have been
avoided by prohibiting Ortiz from testifying contrary to the
facts he was deemed to have admitted by his default.
J.B., ¶ 107, 563 P.3d at 206 (Schutz, J.,
dissenting).
¶62
And so, as a consequence of the initial erroneous decision,
contrary to Frow, to allow Ortiz to testify directly
contrary to facts deemed admitted as a matter of law by his
default, Ortiz is rewarded with a judgment in his favor on
the merits of J.B.'s claims, even though he defaulted,
and even though J.B.'s claims against Ortiz were never
tried or adjudicated. I agree with Judge Schutz that
"[s]uch a conclusion does not serve the laudable
principles of consistency, accountability, or basic
fairness." Id. at ¶ 117, 563 P.3d at 208.
¶63
Accordingly, I respectfully dissent.
---------
Notes:
[1] The complaint was filed by both of
E.B.'s legal guardians, A.B. and J.B. However, only J.B.
petitioned this court. For ease of reference, we only refer
to J.B. throughout the opinion.
[2] We granted certiorari to review the
following issues:
1. Whether the court of appeals erred in affirming the
trial court's order permitting a defaulting defendant to
testify contrary to the facts of his default.
2. Whether the court of appeals erred in affirming the
trial court's order entering judgment, premised on the
verdict the jury reached after hearing a defaulting
defendant's testimony contrary to his default, in favor
of that same defendant.
3. Whether the court of appeals erred in affirming the
trial court's order setting aside the default judgment
entered against a defaulting defendant, misapplying the
applicable three factor test and its heightened standard of
proof.
[1] These facts are taken from the
syllabus in Frow and confirmed in 10 Moore's
Federal Practice—Civil § 55.36[2], LEXIS
(database updated 2026). See also J.B., ¶ 95
& n.2, 563 P.3d at 204 & n.2 (Schutz, J.,
dissenting).
[2] The majority's reliance on the
Second Circuit's decision in Henry v. Oluwole,
108 F.4th 45 (2d Cir. 2024), is misplaced. Maj. op. ¶
41. The case is not binding, nor does it serve as persuasive
precedent for the proposition cited by the majority. Although
the defendant in that case was allowed to testify at the
trial of his nondefaulting codefendants, the propriety of
such testimony was neither raised by the parties nor
addressed by the court. See Henry, 108 F.4th at
49-50, 53-54.
[3] Although the plaintiff presented this
verdict form, she was essentially forced to do so after the
district court made multiple pretrial rulings indicating that
it would permit Ortiz to testify that he did not sexually
assault E.B. And as Judge Schutz noted, the plaintiff
continued to contest the district court's rulings.
J.B., ¶ 111, 563 P.3d at 207 (Schutz, J.,
dissenting).