J.B. v. MKBS, LLC

2024 COA 117, 563 P.3d 189

• Court: Colorado Court of Appeals
• Decided: October 24, 2024
• Docket: 23CA1415
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY October 24, 2024

2024COA117

No. 23CA1415, J.B. v MKBS, LLC — Civil Procedure — Default — Co-Defendants — Entry of Default — Default Judgment — Relief from Judgment or Order — Excusable Neglect

This case presents three novel issues concerning the

application of C.R.C.P. 55(a) and 55(b) where one codefendant

defaulted and a second codefendant did not default and prevailed at

trial. The plaintiff’s claims against both defendants arose from the

allegation that the defaulting codefendant sexually assaulted the

plaintiff’s daughter. (The non-defaulting codefendant was the

employer of the defaulting codefendant.)

First, the division analyzes whether, under these

circumstances, the non-defaulting codefendant could call the

defaulting codefendant to testify at trial regarding, among other

issues, whether he sexually assaulted the victim. The majority

holds that the non-defaulting codefendant may call the defaulting codefendant to testify because the codefendant’s default cannot

restrict the non-defaulting codefendant’s right to defend itself.

Second, the division considers whether the court erred by

setting aside the default judgment entered against the defaulting

codefendant after the jury at the non-defaulting codefendant’s trial

found that the defaulting codefendant did not commit the sexual

assault. The majority concludes that the court did not err.

Third, the division considers whether, under these facts, the

court erred by subsequently entering judgment in favor of the

defaulting codefendant, rather than conducting a separate damages

trial that would create the risk of the entry of inconsistent

adjudications. The majority holds that the court did not err.

The dissent disagrees, concluding that the court erred by

(1) allowing the defaulting codefendant to testify at the trial of the

plaintiff’s claims against the non-defaulting codefendant in a

manner that contradicted the facts that he was deemed to have

admitted by virtue of his default and (2) entering judgment in favor

of the defaulted codefendant without the claims asserted against

him ever having been tried to a jury. COLORADO COURT OF APPEALS 2024COA117

Court of Appeals No. 23CA1415 City and County of Denver District Court No. 19CV30687 Honorable Martin F. Egelhoff, Judge Honorable Marie Avery Moses, Judge

J.B., as legal guardian and personal representative of E.B., an adult with a disability,

Plaintiff-Appellant,

v.

MKBS, LLC d/b/a/ Metro Taxi, Inc. a/k/a Metro Transportation Planning and Solution Group and Jesus Manuel Ortiz,

Defendants-Appellees.

JUDGMENT AFFIRMED

Division VI Opinion by JUDGE LIPINSKY Freyre, J., concurs Schutz, J., dissents

Announced October 24, 2024

Burg Simpson Eldredge Hersh & Jardine, P.C., D. Dean Batchelder, Jessica L. Breuer, Jessica B. Prochaska, Englewood, Colorado, for Plaintiff-Appellant

Harris, Karstaedt, Jamison & Powers, P.C., Jamey W. Jamison, Mark A. Sares, Dino G. Moncecchi, Englewood, Colorado, for Defendant-Appellee MKBS, LLC

Squire Patton Boggs (US) LLP, Keith Bradley, Denver, Colorado, for Defendant- Appellee Jesus Manuel Ortiz ¶1 Parties ignore litigation deadlines at their peril. A defendant

who, after being properly served with a summons and complaint,

does not timely respond to the complaint faces the risk of a default

judgment.

¶2 A plaintiff who seeks a default judgment must take two steps.

First, the plaintiff must obtain a default under C.R.C.P. 55(a),

known as a clerk’s default. A clerk’s default documents that the

defendant failed to respond to the plaintiff’s complaint. “The ‘entry

of default’ accepts the complaint’s allegations and establishes the

defendant’s liability, but it does not establish damages.” Ferraro v.

Frias Drywall, LLC, 2019 COA 123, ¶ 11, 451 P.3d 1255, 1259.

¶3 Second, the plaintiff must then move for entry of a default

judgment under C.R.C.P. 55(b). A court cannot enter a final default

judgment until it has determined the amount of damages that the

plaintiff is entitled to recover from the defaulting defendant. Courts

will generally conduct evidentiary hearings or trials to determine the

damages awardable to the plaintiff against the defaulted defendant.

¶4 Both clerk’s defaults and default judgments may be set aside.

As we explain below, a defaulting defendant must show good cause

1 to set aside a clerk’s default and may set aside a default judgment

in accordance with C.R.C.P. 60(b). C.R.C.P. 55(c).

¶5 This case presents three important issues concerning

defaulting defendants that prior Colorado decisions have not

addressed.

¶6 First, we decide whether, in a civil case involving multiple

parties, arising from a single set of facts, a non-defaulting

codefendant may call a defaulting codefendant to testify at trial,

even though the defaulting codefendant’s liability to the plaintiff

was established under C.R.C.P. 55(a). We hold that, under these

circumstances, the non-defaulting codefendant has the right to call

the defaulting codefendant to the witness stand because the default

entered against the codefendant cannot restrict the non-defaulting

codefendant’s right to defend itself against the plaintiff’s claims.

¶7 Second, we consider whether a court may set aside a default

judgment entered against the defaulting codefendant when the

jury’s answers on a special verdict form at the trial against the

non-defaulting codefendant establish that such defendant is not

liable to the plaintiff and that the plaintiff incurred no damages as a

result of the defaulting codefendant’s actions. We hold that a court

2 does not err by setting aside a default judgment that rests on facts

directly contrary to the jury’s findings at the trial against the non-

defaulting codefendant.

¶8 Third, we hold that, under these facts, a court does not err by

subsequently entering judgment in favor of the defaulting

codefendant rather than conducting a separate damages trial that

creates the risk of logically inconsistent adjudications entered in the

same case.

¶9 We affirm.

I. Background Facts

¶ 10 E.B. is a visually impaired adult with reduced cognitive ability

who uses a wheelchair. J.B. is her parent, personal representative,

and legal guardian.

¶ 11 E.B. attended a day program (the program) for people with

neurological conditions and brain injuries. For several years, Metro

Taxi transported E.B. from her home to the program and back. At

the times relevant to this case, Jesus Ortiz was the employee of

Metro Taxi who drove E.B.

¶ 12 J.B. alleged that, in February 2018, Ortiz sexually assaulted

E.B. while taking her to the program. According to J.B., as a result

3 of the sexual assault, E.B. suffered injuries, including post-

traumatic stress disorder.

II. Procedural History

¶ 13 On February 20, 2019, J.B., acting on behalf of E.B., filed a

single lawsuit, premised on the same factual allegations, against

Metro Taxi and Ortiz. J.B. pleaded claims against Metro Taxi for

negligent hiring and retention, negligent supervision, negligence,

negligent infliction of emotional distress, respondeat superior

liability, and outrageous conduct. J.B.’s claims against Ortiz arose

under theories of intentional infliction of emotional distress,

battery, assault, and outrageous conduct. J.B. effected service on

both defendants in April 2019.

¶ 14 Metro Taxi filed a timely answer, in which it denied J.B.’s

claims. Ortiz did not respond to J.B.’s complaint, however.

¶ 15 On June 7, 2019, the court granted J.B.’s motion for entry of a

C.R.C.P. 55(a) clerk’s default against Ortiz and ordered her to file a

motion for default judgment against Ortiz within thirty-five days.

But J.B.’s counsel did not move for a default judgment for more

than two years.

4 ¶ 16 Ortiz was charged with unlawful sexual contact based on

J.B.’s allegations that he had sexually assaulted E.B. A public

defender represented Ortiz in his criminal case. That case went to

trial, and a jury acquitted Ortiz of the charge.

¶ 17 In the meantime, J.B.’s civil claims against Metro Taxi also

proceeded to trial. Before the trial, the court granted J.B.’s motion

in limine to exclude evidence of Ortiz’s acquittal in the criminal

case.

¶ 18 At a pretrial conference, counsel for Metro Taxi said he

intended to subpoena Ortiz to testify at trial. In response, J.B.’s

counsel filed a forthwith motion to preclude Ortiz from presenting

testimony that would contradict the allegations against him in

J.B.’s complaint because Ortiz was deemed to have admitted those

allegations upon the entry of the clerk’s default. Specifically, J.B.’s

counsel argued that she had “relied upon these admissions since

the beginning of this case and these admissions must be considered

binding.”

¶ 19 The court denied the forthwith motion, noting that J.B.’s

counsel did not provide any authority supporting her argument that

Metro Taxi could not call Ortiz to testify regarding the facts

5 underlying J.B.’s claims against Metro Taxi. As the court

explained, the upcoming trial concerned J.B.’s claims against Metro

Taxi only, and not her claims against Ortiz. Thus, the court

explained, the jury would be asked to determine “the underlying

allegations of sexual assault as [they] relate[] to [Metro Taxi]’s

liability.” (Emphasis added.)

¶ 20 The jury trial began on August 23, 2021. During voir dire, a

prospective juror told the court and counsel that he had heard Ortiz

say in the hallway that he had not touched E.B. inappropriately.

The court declared a mistrial.

¶ 21 Following the mistrial, J.B.’s counsel filed a motion for

reconsideration of her forthwith motion, pointing to Ortiz’s conduct

in causing the mistrial as an example of the prejudice to J.B. and

the risk of jury confusion if Ortiz were allowed to testify. J.B.’s

counsel reiterated that Ortiz “should not now after being in default

and [being deemed to have] admitt[ed] all allegations against him

have the opportunity to defend himself, garner jury favor, and

potentially lessen his apportionment of fault.” The court denied the

motion to reconsider.

6 ¶ 22 The second trial of J.B.’s claims against Metro Taxi began on

November 1, 2021. Testifying for Metro Taxi, Ortiz denied that he

had sexually assaulted E.B. He further explained that he learned

before the trial that he had defaulted and that Metro Taxi’s lawyer

did not represent him. Ortiz did not specify when he became aware

of these facts and noted that he had his own attorney for another

“event,” meaning his criminal case. At a sidebar immediately

following this testimony, the court said it “appreciate[d] [Ortiz’s]

efforts not to refer to the criminal case” and asked Ortiz to confirm

that “[he] had a lawyer associated with [his] criminal case, not with

respect to this civil case.” Ortiz confirmed that the court’s

understanding was correct.

¶ 23 At the conclusion of the trial, the court instructed the jury

that “entry of default establishes a defendant’s liability and the

allegations in the plaintiff’s complaint concerning [Ortiz] are deemed

admitted . . . . [E]ntry of default, however, is not an admission

regarding damages.” The instructions stated that “Ortiz is a

defaulting defendant.”

¶ 24 The jury found in Metro Taxi’s favor. On a special verdict

form, the jury indicated that, “with respect to all claims against

7 Metro Taxi,” Ortiz did not sexually assault E.B., and E.B. did not

“have injuries, damages, or losses from the [alleged] sexual assault.”

(Although J.B.’s counsel objected to the special verdict form that

the court gave the jury, J.B.’s counsel proposed asking the jury

whether E.B. “was sexually assaulted on February 26, 2018,” and

whether she had “injuries, damages, or losses from the sexual

assault on February 26, 2018.” Accordingly, J.B. knew that, at the

conclusion of the trial of her claims against Metro Taxi, the jury

could make express findings that Ortiz did not sexually assault E.B.

and that E.B. suffered no damages from the claimed sexual

assault.)

¶ 25 Following the trial, J.B.’s counsel filed a motion for entry of a

default judgment against Ortiz pursuant to C.R.C.P. 55(b). On

January 10, 2021, the court granted the motion and entered

judgment against Ortiz in the amount of $698,929.81. (The court

premised that figure on the testimony of J.B.’s damages expert at

the trial of J.B.’s claims against Metro Taxi.)

¶ 26 Ortiz moved to set aside the default judgment on grounds of

excusable neglect. He asserted that he “was led to believe that

[Metro Taxi and he] were together in the defense” and that J.B.’s

8 counsel did not provide him with notice of her motion for entry of

default judgment.

¶ 27 On April 6, 2022, the court granted Ortiz’s motion to set aside

the default judgment. The court concluded, “[I]t was reasonable for

Ortiz to believe that he was being represented by the same attorney

as his co-defendant employer” — Metro Taxi — and that, “if the jury

in this civil case . . . found that no assault had occurred, there

would be no basis for entry of a judgment against him.” The court

noted Ortiz’s “considerable confusion as to the interplay between

the criminal case and this civil case, including the role of his court

appointed public defender.”

¶ 28 J.B.’s counsel moved for reconsideration; the court denied the

motion.

¶ 29 Ortiz subsequently moved for entry of judgment in his favor.

Following a hearing conducted on June 28, 2023, the court entered

judgment in Ortiz’s favor based on the jury verdict in Metro Taxi’s

favor, nunc pro tunc to November 5, 2021. The court reasoned that

the jury’s findings on the special verdict form that Ortiz did not

sexually assault E.B. and that E.B. “sustained no injuries, damages

or losses, fully resolve[d] all claims as to . . . Ortiz, inasmuch as an

9 essential element of each asserted claim for relief is a determination

of damages.”

¶ 30 J.B. appeals.

III. Analysis

¶ 31 J.B. contends that the court reversibly erred by

(1) permitting Ortiz to testify at Metro Taxi’s jury trial;

(2) setting aside the default judgment entered against Ortiz;

and

(3) entering judgment in Ortiz’s favor.

A. The Court’s Ruling that Metro Taxi Could Call Ortiz as a Fact Witness at the Trial of J.B.’s Claims Against Metro Taxi

¶ 32 J.B. challenges the court’s decision to allow Ortiz to testify at

Metro Taxi’s jury trial. We disagree.

1. Preservation and Standard of Review

¶ 33 Metro Taxi argues that J.B. did not preserve this issue

because, while she presents a CRE 403 argument on appeal, the

trial court did not consider that rule in deciding that Ortiz could

testify. It further asserts that the issue is not preserved because

J.B.’s counsel did not object at trial to Ortiz’s testimony, although

10 Metro Taxi acknowledges that J.B.’s counsel filed a pretrial motion

“to exclude Ortiz’s testimony wholesale.”

¶ 34 We conclude that J.B. preserved her challenge to Ortiz’s

testimony at the trial of her claims against Metro Taxi. The filing of

J.B.’s forthwith motion, in which her counsel argued that she would

be unfairly prejudiced if the court permitted Ortiz to testify, was

sufficient to preserve her opposition to Ortiz’s trial testimony. See

Berra v. Springer & Steinberg, P.C., 251 P.3d 567, 570 (Colo. App.

2010) (“[T]o preserve the issue for appeal[,] all that [i]s needed [i]s

that the issue be brought to the attention of the trial court and that

the court be given an opportunity to rule on it.”); see also Am. Fam.

Mut. Ins. Co. v. DeWitt, 218 P.3d 318, 325-26 (Colo. 2009) (“[E]ven if

an objection does not specifically identify the rule underlying the

objection, it may nonetheless be sufficient to preserve an issue for

appeal . . . .”).

¶ 35 We review a trial court’s ruling on the admissibility of evidence

for an abuse of discretion. Bly v. Story, 241 P.3d 529, 535 (Colo.

2010). “A trial court abuses its discretion if its decision is

manifestly unreasonable, arbitrary, or unfair, or it misapplies the

11 law.” HMLL LLC v. MJM Holdings Ltd., 2024 COA 85, ¶ 17, ___ P.3d

___, ___.

¶ 36 Because the admissibility of Ortiz’s testimony involves a

question of law, we review the issue de novo. See Dickinson v.

Lincoln Bldg. Corp., 2015 COA 170M, ¶ 21, 378 P.3d 797, 804

(“Here, we assess the legal role of comparative negligence and pro

rata liability in the damages phase of default proceedings. Because

this assessment raises a novel question of law, we review de novo

the district court’s decision to exclude any evidence of comparative

fault . . . .”).

2. The Court Did Not Abuse its Discretion by Permitting Ortiz to Testify at Metro Taxi’s Trial

¶ 37 The court did not err by allowing Metro Taxi to call Ortiz as a

witness at trial for two reasons.

¶ 38 First, as Metro Taxi argues, Ortiz’s testimony was relevant to

the central question at trial: whether Metro Taxi was liable to J.B.

If the jury did not believe that Ortiz sexually assaulted E.B. or that

E.B. suffered any injuries as a consequence of such alleged sexual

assault, Metro Taxi could not be held liable to J.B. Only two people

were present at the time of the alleged sexual assault — Ortiz and

12 E.B. Because of her physical condition, E.B. could not testify. That

left Ortiz as the only eyewitness of what occurred between him and

E.B. at the time of the alleged sexual assault.

¶ 39 Metro Taxi’s ability to defend itself against J.B.’s claims would

have been materially prejudiced if the court had not allowed it to

call Ortiz to the witness stand. As Metro Taxi emphasizes, it was

the sole defendant at trial. Metro Taxi asserts in its answer brief

that the “trial was not against . . . Ortiz, but was limited in scope as

solely against the non-defaulting defendant, Metro Taxi.” J.B.

concedes that the court had no basis for sanctioning Metro Taxi by

limiting the evidence it would introduce at trial. Metro Taxi

complied with the rules of civil procedure and did not miss any

pretrial deadline.

¶ 40 We respectfully disagree with the dissent’s suggestion that

“enforcing the default against Ortiz” by barring him from testifying

at the trial of J.B.’s claims against Metro Taxi would not have

“deprived Metro Taxi of a meaningful opportunity to defend the

claims asserted against it.” Infra ¶ 102. We acknowledge that, as

the dissent correctly notes, Metro Taxi and Ortiz could not be held

jointly and severally liable and that Metro Taxi could only be found

13 liable for the percentage of fault that its alleged wrongful conduct

contributed to E.B.’s damages, if she incurred any. Further, as the

dissent accurately observes, J.B. asserted claims against Metro Taxi

that she could not plead against Ortiz, including claims for

negligent supervision and negligent retention. These true

statements, however, lose sight of the big picture: Metro Taxi, which

did not default and played by the rules, had the right to present its

strongest defense at trial. There is no hint in the record, and J.B.

does not contend, that Metro Taxi was in any way responsible for

Ortiz’s default.

¶ 41 The dissent’s statement that, to “preserve[] the legal impact of

Ortiz’s default,” the jury could have found Metro Taxi not liable

“without resolving the question of whether a sexual assault

occurred,” infra ¶¶ 99, 101, suggests that the court would not have

erred by barring Metro Taxi from calling Ortiz to testify at trial. But

forcing Metro Taxi to rest its case on its defenses to J.B.’s

negligence claims would have deprived Metro Taxi of what was

undoubtedly its strongest defense: that no sexual assault occurred.

If the jury believed — as it did believe — that there was no sexual

assault, Metro Taxi would have won the case even if the jury

14 rejected its defenses to J.B.’s negligence theories. Accordingly,

Metro Taxi could have prevailed at trial based solely on Ortiz’s

testimony that he did not sexually assault E.B. The fact that Ortiz

was in default at the time of his trial testimony was of no

consequence to Metro Taxi’s right to present its most persuasive

defense at trial.

¶ 42 In sum, the dissent would bar Metro Taxi, a party that

followed the rules, from presenting its strongest evidence to the

jury. We are unaware of any case, from any jurisdiction, that

would, in effect, impose sanctions against such a party solely

because its key witness had not complied with the rules.

¶ 43 Further, J.B. does not present a persuasive argument that the

probative value of Ortiz’s testimony was “substantially outweighed

by the danger of unfair prejudice” to her, and, thus, the testimony

was inadmissible under CRE 403. As Ortiz argues, the only

conceivable prejudice to J.B. was the “legitimate probative force of

the evidence” against her allegations. People v. Kembel, 2023 CO 5,

¶ 53, 524 P.3d 18, 29 (quoting People v. Gibbens, 905 P.2d 604, 608

(Colo. 1995)); see also People v. Dist. Ct., 785 P.2d 141, 147 (Colo.

15 1990) (“[E]vidence [is not] unfairly prejudicial simply because it

damages the [opponent’s] case.”).

¶ 44 Second, J.B.’s counsel does not cite any authority supporting

J.B.’s contention that the court abused its discretion by allowing

Metro Taxi to call Ortiz to the witness stand. Rather, J.B.’s counsel

rests the abuse of discretion argument on an inapposite case,

Dickinson v. Lincoln Building Corp., 2015 COA 170M, 378 P.3d 797.

Dickinson concerned defaulted defendants who, at a hearing on the

amount of the judgment to which the plaintiff was entitled, sought

to assert affirmative defenses to challenge their liability to the

plaintiff. See id. at ¶ 27, 378 P.3d at 804. The division held that

the defendants could not challenge their liability at the damages

hearing because they had already defaulted. As the division

explained, “A damages hearing is only held to determine the

amount of damages owed, and any discussion of the liability

underlying that award is prohibited.” Id. at ¶ 28, 378 P.3d at 805.

To permit otherwise “would weaken the efficacy and purpose of

default” as “[i]t would allow a defaulted party to maintain a

defensive posture on liability as though default had never

occurred.” Id. at ¶ 29, 378 P.3d at 805.

16 ¶ 45 The circumstances in Dickinson are materially different from

those in this case. Unlike the defendants’ attempt to contest their

liability in Dickinson, at Metro Taxi’s trial, Ortiz neither testified in

his capacity as a codefendant nor challenged his own liability to

J.B. He did not argue at trial that the court should set aside the

default entered against him or challenge the jury instruction that he

was deemed liable for the sexual assault by virtue of his default.

The critical point is that Ortiz testified as a witness for Metro

Taxi — a non-defaulting codefendant that subpoenaed him to

testify.

¶ 46 Under the circumstances, Ortiz’s default could not deprive

Metro Taxi of the ability to introduce critical evidence in its defense

against J.B.’s liability claims against Metro Taxi. J.B. concedes that

Ortiz’s default did not bind Metro Taxi: “Metro Taxi was certainly

permitted to challenge whether the sexual assault had occurred,

since it was not in default.” Ortiz’s testimony at Metro Taxi’s trial

solely related to the issue of Metro Taxi’s liability.

¶ 47 J.B. acknowledges that Dickinson is distinguishable because

“there are competing needs in a jury trial that may not be present in

a damages hearing.” One “competing need” is Metro Taxi’s right to

17 defend itself against J.B.’s allegations by relying on relevant

evidence. Moreover, a further competing need is ensuring that the

truth-seeking function of our legal system is not thwarted because

the trier of fact is denied material evidence at trial. See

Warembourg v. Excel Elec., Inc., 2020 COA 103, ¶ 1, 471 P.3d 1213,

1217.

¶ 48 In sum, the court did not abuse its discretion by allowing

Metro Taxi to call Ortiz as a witness.

B. The Order Setting Aside the Default Judgment Entered Against Ortiz

¶ 49 J.B. challenges the court’s order setting aside the default

judgment entered against Ortiz. We disagree.

1. Standard of Review

¶ 50 “[A] trial court’s order setting aside a default judgment will not

be disturbed unless the record reflects a clear abuse of discretion.”

McMichael v. Encompass PAHS Rehab. Hosp., LLC, 2023 CO 2, ¶ 12,

522 P.3d 713, 719.

2. The Law Governing Setting Aside a Default Judgment

¶ 51 “For good cause shown the court may set aside an entry of

default and, if a judgment by default has been entered, may

18 likewise set it aside in accordance with Rule 60(b).” C.R.C.P. 55(c).

C.R.C.P. 60(b)(1) says that “the court may relieve a party or his legal

representative from a final judgment, order, or proceeding” for, as

relevant here, “inadvertence, surprise, or excusable neglect.”

¶ 52 When determining whether to relieve a party from a default

judgment under C.R.C.P. 60(b), a court must ask “(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.” McMichael, ¶ 13, 522

P.3d at 719 (quoting Buckmiller v. Safeway Stores, Inc., 727 P.2d

1112, 1116 (Colo. 1986)).

¶ 53 The “first factor looks to the cause of the neglect.” Goodman

Assocs., LLC v. WP Mountain Props., LLC, 222 P.3d 310, 319 (Colo.

2010) (emphasis added). “A party’s conduct constitutes excusable

neglect” for purposes of setting aside a default judgment “when the

surrounding circumstances would cause a reasonably careful

person similarly to neglect a duty.” Id. (quoting In re Weisbard, 25

P.3d 24, 26 (Colo. 2001)). The court applies an objective test in

determining excusable neglect. See Tyler v. Adams Cnty. Dep’t of

19 Soc. Servs., 697 P.2d 29, 32 (Colo. 1985). The second factor focuses

on the merits of the defaulting defendant’s defense. See Goodman,

222 P.3d at 319. The third factor “addresses the circumstances

surrounding the neglect and the motion to set aside” the default

judgment. Id.

¶ 54 “[T]hese three factors constitute a balancing test and each

must be considered in resolving the motion.” Id. at 321. A court’s

consideration of the three factors must be guided by the general

rule that motions to set aside default judgments “should be liberally

construed in favor of the movant, especially where the motion has

been promptly made.” Craig v. Rider, 651 P.2d 397, 402 (Colo.

1982); see also Goodman, 222 P.3d at 322.

¶ 55 A defaulting defendant bears the burden of showing by clear

and convincing evidence that the default judgment should be set

aside. McMichael, ¶ 13, 522 P.3d at 719.

3. The Court Did Not Abuse its Discretion by Setting Aside the Default Judgment Against Ortiz

¶ 56 The 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.

20 ¶ 57 First, the court found that Ortiz’s “failure to participate in

these proceedings was the result of excusable neglect,” as it was “a

reasonable assumption” for Ortiz to assume that Metro Taxi’s

counsel would represent him, as well as Metro Taxi. As the court

noted, “the assault was alleged to have occurred during his

employment” by Metro Taxi; Ortiz was a defendant in a criminal

case arising from the alleged incident involving E.B.; a public

defender represented him in that case; and he was acquitted.

¶ 58 Second, the court found that Ortiz “asserted a meritorious

defense, namely that he did not assault [E.B.].” The court noted

that the jury acquitted Ortiz in the criminal case and that, at the

trial of J.B.’s claims against Metro Taxi, the jury found that “Ortiz

did not assault [E.B.]” and that E.B. did not “have injuries,

damages, or losses from the [alleged] sexual assault.”

¶ 59 The dissent is technically correct that “J.B.’s claims against

Ortiz were never tried or adjudicated.” Infra ¶ 114. But at the trial

of J.B.’s claims against Metro Taxi, J.B. had a full opportunity to

litigate the most fundamental fact underlying J.B.’s claim against

Ortiz — whether Ortiz sexually assaulted E.B. After hearing J.B.’s

21 evidence, the jury rejected the evidence supporting her assertion

that E.B. was sexually assaulted.

¶ 60 Third, while the considerations of equity included the

significant expense that J.B. would incur at a trial on the merits of

her claims against Ortiz, the court found that those considerations

were secondary to other factors. Those factors included Ortiz’s

filing of his motion to set aside “only three weeks after entry of the

Default Judgment” and that, although Ortiz’s “ongoing confusion as

to the differences and significances of the different legal

proceedings” caused a mistrial, “when Ortiz understands what is

required of him, he attempts to comply with the instructions he has

been given.”

¶ 61 J.B. contends that, in analyzing the first C.R.C.P. 60(b)

factor — excusable neglect — the court erroneously focused on

Ortiz’s subjective understanding of whether Metro Taxi’s lawyers

also represented him and disregarded the case law holding that a

pro se litigant must comply with the rules of civil procedure.

(Although Ortiz argues that J.B. “forfeited this issue” by not

mentioning it in her opposition to Ortiz’s motion to set aside the

default judgment or in counsel for J.B.’s motion for reconsideration,

22 J.B. preserved this argument by generally challenging the court’s

finding of excusable neglect. See Taylor v. HCA-HealthONE LLC,

2018 COA 29, ¶ 50, 417 P.3d 943, 951 (holding that, while a more

specific reference “would have been helpful, it was not necessary”

where the defendant “fairly presented the issue to the district court:

she filed a Rule 60(b) motion to set aside a judgment entered

without consideration of the merits on the basis of excusable

neglect”).)

¶ 62 Contrary to J.B.’s argument, the court expressly found that it

was reasonable for Ortiz to assume that Metro Taxi’s lawyers were

representing him because J.B.’s claims arose from Ortiz’s alleged

conduct while employed by Metro Taxi. Although the court did not

expressly say whether it was applying an objective or a subjective

test in deciding whether Ortiz’s failure to respond to J.B.’s

complaint was reasonable, we interpret the court’s language as

meaning that a reasonable person similarly situated to Ortiz would

have believed that his employer’s counsel represented him in the

civil case.

¶ 63 Significantly, the court reminded the parties that it had

presided over the trial of J.B.’s claims against Metro Taxi, at which

23 it observed Ortiz’s testimony about “his understanding regarding

the default that had been entered against him and his

understanding of whether he was represented by an attorney

(including the attorney for [Metro Taxi]) in this civil action.” The

court credited Ortiz’s claim that he thought that Metro Taxi’s

lawyers represented him “because the assault was alleged to have

occurred during his employment.”

¶ 64 For these reasons, the court correctly objectively assessed

whether “the surrounding circumstances would cause a reasonably

careful person similarly to neglect a duty.” Weisbard, 25 P.3d at 26

(quoting Tyler, 697 P.2d at 32).

¶ 65 The court, therefore, set aside the default judgment only after

thoroughly considering the “cause of the neglect.” Goodman, 222

P.3d at 319, 322. The court’s detailed explanation for its

determination that Ortiz established excusable neglect

demonstrates why appellate “[r]eview of a trial court’s order setting

aside a default judgment is deferential.” McMichael, ¶¶ 10, 12, 522

P.3d at 718-19 (“[W]e emphasize that weighing the relevant factors

for relief pursuant to C.R.C.P. 60(b)(1) remains within the province

of the trial court.”). Accordingly, we hold that the court did not

24 abuse its discretion by determining that Ortiz established excusable

neglect to set aside the default judgment.

¶ 66 J.B. “does not contest that Ortiz could meet” the second

factor — that he had a meritorious defense — given his testimony

and the jury’s findings on the special verdict form at the trial

against Metro Taxi.

¶ 67 The parties dispute whether Ortiz established the third factor

of the C.R.C.P. 60(b) analysis — that setting aside the default would

be consistent with considerations of equity. J.B. argues that the

court did not give sufficient weight to her reliance on “the effect of

Ortiz’s failure to appear, including the deemed admission of

allegations in the complaint” as a consequence of the entry of the

clerk’s default against him.

¶ 68 In assessing a C.R.C.P. 60(b)(1) motion to set aside a default

judgment, we look to the C.R.C.P. 55(b) judgment and not to the

C.R.C.P. 55(a) clerk’s default. See C.R.C.P. 60(b) (“[T]he court may

relieve a party or his legal representative from a final judgment,

order, or proceeding . . . .”) (emphasis added). Therefore, in

deciding whether the default judgment against Ortiz should be set

aside, the court correctly considered J.B.’s alleged reliance on the

25 default judgment entered in 2021, after the trial on J.B.’s claims

against Metro Taxi, and not her alleged reliance on the clerk’s

default entered in 2019.

¶ 69 In addition, when assessing whether a defaulting defendant

promptly moved to set aside the default judgment, see Craig, 651

P.2d at 403-05, we determine promptness from the date on which

the court entered the default judgment, see C.R.C.P. 60(b) (A

motion to set aside a judgment on grounds of excusable neglect

“shall be made within a reasonable time, and . . . not more than

182 days after the judgment . . . was entered . . . .”). As the court

noted, Ortiz filed his motion to set aside the default judgment “only

three weeks” following entry of the default judgment. Thus, counsel

for J.B.’s assertion that “[i]t was years since he should have

answered,” referring to the June 7, 2019, date of the clerk’s default,

is incorrect.

¶ 70 For these reasons, we perceive no abuse of discretion in the

court’s decision to set aside the default judgment against Ortiz. See

CF & I Steel Corp. v. Robb, 533 P.2d 491, 494 (Colo. 1975) (Where

the motion to set aside the default judgment “has been promptly

made and a prima facie meritorious defense is shown,” the supreme

26 court has not hesitated to conclude that the court abused its

discretion by refusing to set aside the default judgment,

“particularly in cases where the defendant had no actual notice of

the suit, or of the trial.” (quoting F & S Constr. Co. v. Christlieb, 441

P.2d 656, 657 (Colo. 1968))).

C. The Entry of Judgment in Ortiz’s Favor

¶ 71 We also disagree with J.B.’s argument that the court reversibly

erred by entering judgment in Ortiz’s favor.

¶ 72 Neither the court nor the parties cite to a case squarely

addressing the standard of review we should apply when

considering a trial court’s entry of judgment in favor of a defaulting

codefendant following a jury’s verdict in favor of a non-defaulting

codefendant. We conclude that the appropriate standard is de novo

review, as the court determined that Ortiz was entitled to judgment

in his favor as a matter of law to avoid inconsistent adjudications.

See Salomon Smith Barney, Inc. v. Schroeder, 43 P.3d 715, 716-17

(Colo. App. 2001) (applying the United States Supreme Court’s

holding in Frow v. De La Vega, 82 U.S. 552, 554 (1872), in deciding

that a default judgment could not be entered against a defaulting

27 codefendant until the liability of the non-defaulting codefendant

had been adjudicated, where the liability of the former depended on

the liability of the latter).

2. The Court Did Not Err by Entering Judgment in Ortiz’s Favor

¶ 73 At the hearing at which the court and counsel discussed how

the case should proceed after the court set aside the default

judgment against Ortiz, the court observed that it was “obligated to

give effect to the jury’s verdict. And at that point in time, the issue

for Mr. Ortiz wasn’t liability; it was damages. . . . Ortiz was entitled

to have some determination with respect to damages” before the

court entered a default judgment against him. The court explained

that entry of a money judgment against Ortiz would be inconsistent

with the jury’s finding that E.B. had suffered no injuries or

damages as a consequence of the alleged sexual assault.

¶ 74 J.B.’s counsel argued that the jury’s findings pertained to

Metro Taxi only and that the court should not consider those

findings when determining the amount of damages that Ortiz

should be required to pay to J.B. In response to this argument, the

court underscored that all of J.B.’s claims against Metro Taxi rested

on her allegation that Ortiz had sexually assaulted E.B. The court

28 reiterated that the jury had expressly found that no sexual assault

had occurred.

¶ 75 Like its statements at the hearing, the court’s order entering

judgment in favor of Ortiz was well reasoned. The court explained:

• At Metro Taxi’s trial, the court instructed the jury that

J.B. “was required to prove the nature and extent of her

damages, and to determine the total dollar amount

caused by the negligence, ‘if any,’” of Metro Taxi and “by

the fault” of Ortiz.

• On the special verdict form, the jury expressly found that

E.B. had no injuries, damages, or losses from the sexual

assault.

• The sole issue outstanding as to Ortiz at the time of trial

was the determination of the amount of damages he owed

in light of the entry of the clerk’s default against him.

• “Giving maximum effect to the jury’s verdict, the

determination that [E.B.] sustained no injuries, damages

or losses . . . fully resolves all claims as to . . . Ortiz,

inasmuch as an essential element of each asserted claim

for relief is a determination of damages.”

29 ¶ 76 We hold that the court did not abuse its discretion by entering

judgment in favor of Ortiz. The court painstakingly avoided

entering logically inconsistent judgments: One predicated on the

jury’s finding that Ortiz did not sexually assault E.B. and that E.B.

suffered no damages from any such sexual assault, and a second

predicated on the presumptions that Ortiz did sexually assault her

and that she suffered damages as a result.

¶ 77 “Inconsistent default judgments, like inconsistent judgments

more generally, are strongly disfavored. When a case involves

multiple defendants, courts may not grant default judgment against

one defendant if doing so would conflict with the position taken by

another defendant.” Escalante v. Lidge, 34 F.4th 486, 495 (5th Cir.

2022).

¶ 78 Following this reasoning, a court should enter judgment in

favor of a defaulting codefendant when a judgment against that

defendant would directly conflict with the jury verdict entered at the

conclusion of the trial of the plaintiff’s claims against a non-

defaulting codefendant. See Schenck v. Van Ningen, 719 P.2d 1100,

1102 (Colo. App. 1986) (holding that the trial court did not err by

dismissing the plaintiff’s suit against a defaulting codefendant

30 where the court had previously entered summary judgment in favor

of the non-defaulting codefendant, noting, “It would be inconsistent

to enter judgment against the [defaulting codefendant] after having

held the same facts do not state a claim for relief against the [non-

defaulting codefendant]”).

¶ 79 As the United States Supreme Court advised in Frow, when a

case involves multiple defendants and one has defaulted, the court

should “simply . . . enter a default” against the defaulting defendant

“and proceed with the cause upon the answers of the other

defendant[].” 82 U.S. at 554 (emphasis added). The Supreme Court

explained,

[I]f the suit should be decided against the complainant on the merits, the bill will be dismissed as to all the defendants alike — the defaulter as well as the others. If it be decided in the complainant’s favor, he will then be entitled to a final decree against all. But a final decree on the merits against the defaulting defendant alone, pending the continuance of the cause, would be incongruous and illegal.

Id.; see also Salomon Smith Barney, Inc., 43 P.3d at 716-17

(applying Frow and holding that, although a defaulting defendant

could not “participate further in the proceedings,” such defendant

31 “would be entitled to the benefit of any favorable judgment” entered

on the plaintiff’s claims against the non-defaulting defendants). “[I]f

Frow still stands for anything, it explicates a cautionary warning to

the courts: logically inconsistent judgments resulting from an

answering defendant’s success on the merits and another

defendant’s suffering of a default judgment are to be avoided.”

Jefferson v. Briner, Inc., 461 F. Supp. 2d 430, 434 (E.D. Va. 2006).

¶ 80 The Second Circuit described the proper procedure under

such circumstances in Henry v. Oluwole, 108 F.4th 45 (2d Cir.

2024), which involved facts remarkably similar to those presented

here. The plaintiff, Henry, asserted multiple claims against an

individual defendant, Oluwole, and his employer, Bristol Hospital,

predicated on her allegation that Oluwole sexually assaulted her

when he was employed at Bristol Hospital. See id. at 48. “Oluwole

did not initially appear, and the district court entered a default

judgment against him as to liability but not as to damages.” Id.

¶ 81 Henry’s case against Bristol Hospital then proceeded to trial.

Bristol Hospital called Oluwole as a witness. Oluwole testified that

his encounter with Henry had been consensual. Id. at 50.

32 ¶ 82 The jury returned a verdict in favor of Bristol, “finding that

Henry had failed to prove that Oluwole sexually assaulted . . . her.”

Id. at 48. Following the trial, the district court vacated the default

judgment as to Henry’s assault and battery claims because

“allowing [those claims] to stand would result in the entry of

‘logically inconsistent judgments’ in contravention of Frow.” Id. at

48-49 (quoting Henry v. Bristol Hosp., Inc., No. 13-CV-00826, 2020

WL 7773418, at *4 (D. Conn. Dec. 30, 2020) (unpublished order)).

Oluwole then moved to set aside the default judgment on Henry’s

remaining claims against him, arguing that maintaining them

would also result in logically inconsistent judgments. The district

court denied his motion. Id.

¶ 83 The Second Circuit reversed, holding that “the Frow principle,

which prohibits a default judgment that is inconsistent with a

judgment on the merits, required vacatur of the entire default

judgment because all of Henry’s claims against Oluwole are

inconsistent with the jury verdict in favor of Bristol.” Id. at 53-54.

The Second Circuit noted that “the defaulting party, Oluwole, even

testified at the trial of the non-defaulting co-defendant, Bristol, the

liability of which was entirely derivative of Oluwole’s own.” Id. at

33 54. “Henry had the same opportunity to examine and to challenge

Oluwole’s version of the sexual encounter at the trial against Bristol

that she would have had at a trial against Oluwole.” Id.

¶ 84 The Second Circuit further observed that setting aside the

default judgment would not prejudice Henry, as she had already

incurred significant litigation expenses in her case against Bristol

Hospital, see id. at 52, and she “would have incurred the same

costs had Oluwole timely answered her complaint,” id. at 53. The

court’s reasoning in Henry reinforces our holding in this case

regarding the judgment entered in favor of Ortiz. A court cannot, in

the same case, enter an adjudication that a defaulting defendant

did not commit a sexual assault and that the alleged victim suffered

no damages as a result of any such sexual assault and an

adjudication that the defendant committed a sexual assault and

that the alleged victim suffered damages as a result. This type of

nonsensical outcome would not only defy logic, but it would

undermine confidence in our legal system.

¶ 85 J.B. argues that it would be inconsistent to “complete[ly]

revers[e]” the entry of the default judgment against Ortiz by setting

that judgment aside. But there is no inconsistency when a court

34 enters a judgment in favor of a defaulting codefendant to avoid an

adjudication that directly contradicts the jury’s findings at the trial

of the plaintiff’s claims against a non-defaulting codefendant. See

id. at 53-54; Frow, 82 U.S. at 554; Escalante, 34 F.4th at 495.

¶ 86 Lastly, J.B. contends that the court provided no explanation

for reversing the default judgment. The record refutes J.B.’s

argument. The court explained in detail why the court previously

erred by entering the default judgment:

[W]hat should have happened is that at the time of the verdict, [the court] should have given maximum effect to the verdict . . . [and] entered judgment based upon those findings. That didn’t happen. . . . I think there was an error that occurred in not entering the judgment at that time. It’s an error [that] can be cured by me issuing an order to that effect, nunc pro tunc, to the date of the verdict, which is what I’m going to do. And I’ve articulated my rationale for that.

(Emphasis added.) Cf. S. Cross Ranches, LLC v. JBC Agric. Mgmt.,

LLC, 2019 COA 58, ¶ 46, 442 P.3d 1012, 1020 (holding that the

district court abused its discretion where “the second order did not

mention the first order, much less give any reason for reaching the

opposite result”).

35 ¶ 87 In sum, the court did not err by entering judgment in Ortiz’s

favor, consistent with the jury’s findings at the conclusion of the

trial of J.B.’s claims against Metro Taxi.

IV. Costs

¶ 88 J.B. requests that we set aside the court’s award of costs to

Ortiz. In light of our disposition of J.B.’s contentions, there is no

basis for reversing the cost award.

V. Disposition

¶ 89 The judgment is affirmed.

JUDGE FREYRE concurs.

JUDGE SCHUTZ dissents.

36 JUDGE SCHUTZ, dissenting.

¶ 90 The procedural context of 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. The majority concludes that these principles require the

entry of a judgment in favor of a defaulting defendant even though

the plaintiff was never afforded the opportunity to pursue their

claim for damages against that party.

¶ 91 The majority relies upon the Supreme Court’s opinion in Frow

v. De La Vega, 82 U.S. 552 (1872), in support of its opinion. The

majority reasons that its application of Frow prevents irrational

inconsistent judgments, allows a non-defaulting codefendant the

full opportunity to litigate their defense, and provides accountability

for those who fail to comply with litigation deadlines.

¶ 92 In contrast, I conclude that the majority opinion reaches an

outcome that runs counter to the foundational principles it intends

to promote by endorsing a process that creates illogical results,

rewarding a defendant who failed to comply with litigation

37 deadlines, and depriving a plaintiff of their opportunity to try their

claims against the defaulted defendant.

I. Additional Facts and Procedural Context

¶ 93 The majority thoroughly and aptly describes the factual

circumstances that gave rise to this litigation and the procedural

machinations that followed. Without repeating that history, the

following points are central to my analysis:

• E.B. claims that she was sexually assaulted by Jesus

Ortiz while Ortiz was transporting her in a taxi owned by

his employer, MKBS, Inc. d/b/a Metro Taxi, Inc. (Metro

Taxi). E.B. brought this suit through her legal guardian,

J.B.

• Ortiz failed to timely answer the complaint.

• The court entered a clerk’s default against Ortiz in June

2019 and directed J.B.’s counsel to file a motion for entry

of default judgment within thirty-five days. J.B.’s

counsel failed to meet that deadline.

• Metro Taxi timely filed its answer.

• J.B.’s claims against Metro Taxi proceeded to a jury trial

in November 2021. Over the objection of J.B.’s counsel,

38 the trial court permitted Ortiz to testify at the trial and

deny that he assaulted E.B., a fact that was deemed

admitted as a matter of law by virtue of Ortiz’s default.

See Suydam v. LFI Fort Pierce, Inc., 2020 COA 144M, ¶ 46

(“[A]n entry of default establishes a party’s liability [and]

[t]he allegations in the plaintiff’s complaint [concerning

the defaulting party] are also deemed admitted.” (quoting

Dickinson v. Lincoln Bldg. Corp., 2015 COA 170M, ¶ 22));

Ferraro v. Frias Drywall, LLC, 2019 COA 123, ¶ 11 (“The

‘entry of default’ accepts the complaint’s allegations and

establishes the defendant’s liability . . . .” (quoting

Dickinson, ¶ 22)).

• At trial, the court instructed the jury that “[b]ecause . . .

Ortiz has not participated in this case, the [c]ourt has

found him liable to [J.B.] and a cause of her damages, if

any.”

• The court’s jury instructions and verdict form did not

contain any claim for relief against Ortiz.

39 • Based largely on Ortiz’s testimony at trial denying the

assault, the jury answered the first two interrogatories on

the verdict form as follows:

1. Do you find that [E.B.] was sexually assaulted by Ortiz . . . ? (Yes or No)

ANSWER: No.

2. Did [E.B.] have injuries, damages, or losses from the sexual assault . . . ?

ANSWER: No.1

• Based on the jury’s answers to these interrogatories, the

court entered judgment against J.B. on her claims

against Metro Taxi. No judgment was entered for or

against Ortiz.

• After the jury trial, J.B.’s counsel moved for the entry of a

default judgment against Ortiz. Ortiz did not respond to

the motion.

1 It should be noted that the jury’s answer to the first

interrogatory — that no assault occurred — dictated its answer to the second. This is so because, if no assault occurred, it necessarily follows that no damages could have been caused by such nonoccurrence.

40 • Based on the evidence of damages J.B. submitted to the

jury at the Metro Taxi trial, the trial court entered a

default judgment against Ortiz in the amount of

approximately $700,000.

• Three weeks later, Ortiz moved to set aside the default

• The trial court granted the motion and set aside the

clerk’s default and the default judgment. The court then

set the matter for a case management conference.

• At the conference, and after argument from counsel, a

different district court judge ruled that the jury’s answers

to the special interrogatories precluded J.B. from

pursuing the claims against Ortiz and entered judgment

in favor of Ortiz and against J.B.

• J.B. appeals the entry of judgment against her on her

claims against both Metro Taxi and Ortiz.

II. Analysis

¶ 94 As a starting point, I respectfully disagree with the majority’s

partial application of the Frow principles to the circumstances of

this case.

41 A. The Limits of Frow

¶ 95 In Frow, De La Vega alleged that multiple defendants had

defrauded him of a parcel of land. 82 U.S. at 552-53.2 Frow failed

to timely answer the complaint, and the trial court entered a

judgment against him awarding the property to De La Vega. Id.

Frow appealed. While the appeal was pending, a trial was held

against the defendants who had not defaulted. Id. That trial ended

in a judgment in favor of the non-defaulting defendants. Id.

¶ 96 In resolving the appeal against De La Vega, the Supreme Court

disapproved of the trial court’s entry of a final judgment against

Frow while the same claim against his non-defaulting codefendants

remained pending. The court noted that the inconsistent

judgments created an incongruent, unseemly, and absurd result.

Id. at 554. The Court then explained the proper procedure that

should be followed in such cases:

[If a complaint asserts a claim against] several defendants, and one of them makes default, [the proper procedure] is simply to enter a default . . . against him, and proceed with the

2 These facts are taken from the syllabus that precedes the

Supreme Court’s opinion in Frow. They are also confirmed in 10 James Wm. Moore et al., Moore’s Federal Practice — Civil § 55.36[2] (3d ed. 2022).

42 cause upon the answers of the other defendants. The defaulting defendant has merely lost his standing in court. He will not be entitled to service of notices in the cause, nor to appear in it in any way. He can adduce no evidence, he cannot be heard at the final hearing. But if the suit should be decided against the complainant on the merits, the bill will be dismissed as to all the defendants alike — the defaulter as well as the others. If it be decided in the complainant’s favor, he will then be entitled to a final decree against all.

Frow, 82 U.S. at 554 (emphasis added).

¶ 97 There are two aspects of Frow to which the majority opinion

does not abide. First, Frow involved a claim against multiple

defendants in which the relief sought — title to the disputed

parcel — could not be awarded against one defendant and not the

others. See 10 James Wm. Moore et al., Moore’s Federal Practice —

Civil § 55.36[2] (3d ed. 2022) (“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.”); see also Jefferson v.

43 Briner, Inc., 461 F. Supp. 2d 430, 435 n.6 (E.D. Va. 2006) (noting a

divide among federal courts regarding whether Frow is limited to

cases involving joint and several liability). But see In re First T.D. &

Inv., Inc., 253 F.3d 520, 532 (9th Cir. 2001) (stating that, in the

context of a bankruptcy case concerning the perfection of security

interests, Frow “appl[ies] to defendants who are similarly situated,

even if not jointly and severally liable”).

¶ 98 The claims involved in this case do not involve joint and

several liability. Indeed, in 1986, the Colorado General Assembly

abolished the doctrine of joint and several liability and replaced it

with pro rata liability for defendants based on their respective

percentage of fault in causing the claimant’s damages. Niemet v.

Gen. Elec. Co., 843 P.2d 87, 90 (Colo. App. 2001) (citing § 13-21-

111.5, C.R.S. 1987), aff’d, 866 P.2d 1361 (Colo. 1994). Thus, on

the claims against Metro Taxi that were submitted to the jury

(negligence, negligent supervision, negligent retention, and

negligent infliction of emotional distress), Metro Taxi could not be

held jointly and severally liable with any judgment entered against

Ortiz. Instead, Metro Taxi could only be held liable for the

44 percentage of fault that its wrongful conduct, if any, contributed to

the cause of E.B.’s damages.

¶ 99 Moreover, a monetary judgment could be entered on the

claims against Ortiz (outrageous conduct, intentional infliction of

emotional distress, battery, and assault) without entering a

monetary judgment against Metro Taxi. Likewise, a finding that

Metro Taxi was not liable — for example, because it did not know or

should not have known that Ortiz’s character or prior conduct

created an unreasonable risk of harm to passengers — could have

been resolved without resolving the question of whether a sexual

assault occurred. If the jury returned a verdict finding that Metro

Taxi was not at fault, then the case would have proceeded only on

the claims asserted against Ortiz, and Metro Taxi would face no

liability.

¶ 100 If the jury found that Metro Taxi was at fault, the claims

against it could not be fully resolved until a jury determined the

percentage of fault to be allocated between Ortiz and Metro Taxi.

But this could have occurred at a single subsequent trial, and at

that trial, the jury could have been instructed, consistent with the

prior clerk’s default and the jury’s prior allocation of fault, that

45 Ortiz was deemed, as a matter of law, to have assaulted E.B. The

jury would then be required to allocate the separate percentages of

fault to be attributed to Ortiz and Metro Taxi. The jury would also

be required to determine the amount of E.B.’s damages, if any.

Ortiz would be responsible for the percentage of damages that

corresponded to the percentage of fault attributed to him, and

Metro Taxi would have been responsible for damages proportional

to the percentage of fault the jury attributed to it.

¶ 101 Both of these results would have preserved the legal impact of

Ortiz’s default. And in either scenario, neither Ortiz nor Metro Taxi

would have faced liability for damages they did not cause. And

there would be no problem awarding separate monetary damages

against Ortiz and Metro Taxi if they were both found liable — trial

courts throughout Colorado routinely do just that when multiple

codefendants are both held liable in tort for a claimant’s personal

injuries.

¶ 102 I acknowledge that there is some theoretical tension in

precluding Metro Taxi from contesting that the assault actually

occurred. But to say that enforcing the consequence of the default

against Ortiz deprives Metro Taxi of its opportunity to defend the

46 case against it stretches credulity based on how co-tortfeasors are

treated in Colorado. Moreover, any conceivable inconsistency

would be obviated if Metro Taxi simply demonstrated that it was not

at fault or that E.B. suffered no damages. Given these dynamics, I

cannot see how enforcing the default against Ortiz would have

deprived Metro Taxi of a meaningful opportunity to defend the

claims asserted against it.

¶ 103 Finally, allowing Ortiz to testify at the trial on the claims

asserted against Metro Taxi while he was in default ran afoul of the

Supreme Court’s basic instructions in Frow: A defaulted defendant

is not “entitled to service of notices in the cause, nor to appear in it

in any way. He can adduce no evidence, he cannot be heard at the

final hearing.” 82 U.S. at 554. Colorado appellate courts have

recognized and applied this foundational principle of Frow. See,

e.g., Salomon Smith Barney, Inc. v. Schroeder, 43 P.3d 715 (Colo.

App. 2001) (“Although a default could properly enter against the

defendant in Frow, and although he could not participate further in

the proceedings, he would be entitled to the benefit of any favorable

judgment that might enter against his codefendants.”) (emphasis

added).

47 ¶ 104 The 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.3 And in doing so, the

majority approves a process that is contrary to the principles of

consistency, accountability, and fairness that it seeks to promote.

B. The Inconsistency

¶ 105 While the parties did not cite Frow in the trial court, E.B.

sought its protections by objecting to Metro Taxi calling Ortiz as a

witness.

¶ 106 The trial court attempted to address E.B.’s concerns by

instructing the jury that the court had already “found [Ortiz] liable

to [E.B.] and a cause of her damages, if any.” At the same time,

however, the court instructed the jury to answer the question

whether E.B. was sexually assaulted by Ortiz. Yet, the court gave

3 The majority cites Henry v. Oluwole, 108 F.4th 45 (2d Cir. 2024),

in support of the approach it adopts. While it is true that a defaulted defendant was allowed to testify at the trial of his non- defaulting codefendants in Henry, the case did not discuss the propriety of permitting such testimony, so the issue was not expressly addressed. Moreover, the nonbinding precedent of Henry does not address whether Connecticut, the originating jurisdiction, had enacted a statute that abolished joint and several liability.

48 the jury no guidance on how it was to resolve this inconsistency:

Ortiz was liable for the assault as a matter of law, but the jury

could still conclude that no assault occurred.

¶ 107 The essential premise of Frow, and the principle the majority

leans heavily on, is that the law does not tolerate inconsistent

results. But the inconsistency in this case was created by the trial

court allowing the jury to hear testimony from Ortiz that he did not

sexually assault E.B., when the trial court had already determined,

as matter of law, that his default resulted in a legally binding

admission that he had assaulted her. In essence, the trial court

applied the remedy of Frow — setting aside the default judgment —

to cure an inconsistency that could have been avoided by applying

the prophylactic condition designed to prevent such an

inconsistency — prohibiting Ortiz from testifying in a manner that

was inconsistent with the facts he was deemed to have admitted.

C. Accountability

¶ 108 The majority opinion begins with a reference to the established

and venerable principle that “[p]arties ignore litigation deadlines at

their peril.” Supra ¶ 1. The conundrum in this case was created by

Ortiz’s failure to timely file an answer to the complaint coupled with

49 his subsequent two-year delay in moving to set aside the default

prior to the trial of the claims against Metro Taxi. If Ortiz had

timely moved to set aside the default, the inconsistencies could

have been avoided. But he chose not to do that, instead moving to

set aside the default judgment only after the jury trial and resulting

judgment in favor of Metro Taxi.

¶ 109 Rather than holding Ortiz accountable for ignoring basic

pleading deadlines, the rationale of the majority opinion results in a

profound reward: a judgment entered in Ortiz’s favor without ever

having to face a trial on the merits of E.B.’s claims against him.

Rather than experiencing peril for ignoring his obligations, the

outcome in this case rewards him for such behavior.

¶ 110 The majority notes that E.B. failed to file the motion for entry

of default judgment until long after the thirty-five-day deadline set

by the trial court. To the extent that this rationale is offered to

justify the incongruities explained above, I’m not persuaded.

Indeed, under Frow and its progeny, the court was not permitted to

enter a judgment against Ortiz until the claims against Metro Taxi

were resolved:

50 The true mode of proceeding where a [complaint] makes a joint charge against several defendants, and one of them makes default, is simply to enter a default . . . against him, and proceed with the cause upon the answers of the other defendants. . . . [A] final decree on the merits against the defaulting defendant alone, pending the continuance of the cause, would be incongruous and illegal.

Frow, 82 U.S. at 554. Thus, under Frow it would have been futile

for J.B. to move for the entry of a judgment against Ortiz within

thirty-five days. Her failure to do so therefore provides no support

for the majority’s conclusion.

¶ 111 The majority also seems to imply that J.B. acquiesced in

allowing Ortiz to testify and deny the assault because J.B.’s counsel

tendered an instruction that asked the jury to determine whether

Ortiz sexually assaulted E.B. But counsel tendered that instruction

after the court made multiple pretrial rulings stating that it would

allow Metro Taxi to contest that issue and allow Ortiz to testify and

deny that the assault occurred. But as late as the final jury

instruction conference, J.B.’s counsel still contested the jury’s

resolution of this issue in a manner inconsistent with Ortiz’s

default. Thus, J.B. did not waive this issue. See Bennett v. Greeley

51 Gas Co., 969 P.2d 754, 758 (Colo. App. 1998) (a motion in limine is

adequate to preserve an objection to the evidence).

¶ 112 In sum, the principles of accountability noted by the majority

do not support punishing E.B. and certainly do not support a result

that rewards Ortiz for his default.

D. Absurdities

¶ 113 While grounded in concerns for consistent verdicts, the

process followed by the district court created legal absurdities of

equal or greater magnitude. It required the jury to resolve the issue

of whether the sexual assault occurred through Ortiz’s testimonial

denials, despite the fact that he was deemed to have admitted, as a

matter of law, that the assault occurred. Relatedly, the jury was

asked to resolve whether the assault occurred despite the court

having held that Ortiz was liable for the assault.

¶ 114 The majority justifies this process, at least in part, on the

notion that J.B. had the opportunity to litigate whether the assault

occurred at the trial involving Metro Taxi. Ortiz proffers the same

rationale, reasoning that J.B. had a full opportunity to litigate the

claims against Ortiz. But as the majority correctly notes, the trial

court expressly declared that the jury would be asked to determine

52 “the underlying allegations of sexual assault relate to [Metro Taxi’s]

liability.” Consistent with that explanation, the trial court did not

instruct the jury on E.B.’s claims against Ortiz, and it did not

permit the jury to return a verdict on those claims. Thus, J.B.’s

claims against Ortiz were never tried or adjudicated.

¶ 115 Contrast that outcome to the process that the majority opinion

contemplates for Ortiz. Clearly, if J.B. had prevailed on the claims

against Metro Taxi, J.B. could not have relied on those verdicts for

the entry of a judgment against Ortiz. Ortiz would have been

entitled to his day in court to contest J.B.’s claimed damages. Yet,

under the majority’s rationale, Ortiz was permitted to rely on those

same verdicts in favor of Metro Taxi to defeat J.B.’s claims against

him.

¶ 116 Effectively, the majority rationale gives a defaulting party two

bites at the proverbial apple, the first by testifying at a trial

involving the non-defaulting party in a manner that directly

contradicts the facts deemed admitted as a matter of law by virtue

of the default. And the second, if unhappy with the jury’s verdict

on the claims against the non-defaulting party, by permitting the

defaulted party to demand a second trial to contest the issues of

53 damages. In contrast to affording a defaulting party the benefit of

two trials, the majority rationale deprives a plaintiff of any trial or

verdict on the claims asserted against the defaulted party.

¶ 117 This scenario results in a reward to a defaulting party —

prevailing on a claim without ever facing the merits of that claim —

and an unwarranted punishment of a non-defaulting party —

depriving them of their day in court to present their claims against

the defaulting defendant with liability established as a matter of

law. Such a conclusion does not serve the laudable principles of

consistency, accountability, or basic fairness.

III. Conclusion

¶ 118 For the reasons stated, I respectfully dissent.