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 April 2, 2020
2020COA60
No. 19CA0349, Credit Service Co. v. Skivington — Civil Procedure — Defenses and Objections — Failure to State a Claim Upon Which Relief Can be Granted
A division of the court of appeals considers whether a party
may appeal a denial of a motion to dismiss for failure to state a
claim under C.R.C.P. 12(b)(5) once judgment has been entered
following a trial. The division concludes that after a trial on the
merits, an order denying a motion to dismiss for failure to state a
claim is not appealable. COLORADO COURT OF APPEALS 2020COA60
Court of Appeals No. 19CA0349 El Paso County District Court No. 18CV31955 Honorable David A. Gilbert, Judge
Credit Service Company, Inc.,
Plaintiff-Appellee,
v.
Paul Skivington,
Defendant-Appellant.
JUDGMENT AND ORDER AFFIRMED
Division V Opinion by JUDGE J. JONES Harris and Brown, JJ., concur
Announced April 2, 2020
No Appearance for Plaintiff-Appellee
Paul Skivington, Pro Se ¶1 Defendant, Paul Skivington, appeals the trial court’s judgment
and its order denying his motion for new trial. We affirm. Among
the issues we address is whether a party may appeal a denial of a
motion to dismiss for failure to state a claim under C.R.C.P. 12(b)(5)
once judgment has been entered following a trial. We hold that a
party may not.
I. Background
¶2 In early 2017, Mr. Skivington suffered a stroke. He went to a
University of Colorado Health (UC Health) hospital for medical
treatment. While there he signed an agreement, titled “Treatment
Agreement and Conditions of Service,” providing that UC Health
would treat him in exchange for his agreement to pay for that
treatment. After treating Mr. Skivington, UC Health billed him
$30,536.10 for its services. Mr. Skivington didn’t pay. UC Health
then assigned his account to plaintiff, Credit Service Company, Inc.
(CSC), a collection agency, to collect the debt.
¶3 CSC sued Mr. Skivington to recover the outstanding balance
on his UC Health account. Mr. Skivington filed two C.R.C.P.
12(b)(5) motions to dismiss the claims: in the first motion, he
asserted that CSC’s complaint was invalid because CSC hadn’t filed
1 a response to Mr. Skivington’s answer to the complaint; and in the
second motion, he argued, as now relevant, that (1) the evidence
showed that UC Health treated not him, but a person named Paul
Doe; and (2) CSC’s complaint failed to state a plausible claim for
relief. The trial court denied both motions.
¶4 The case went to trial before the court on January 24, 2019,
almost two years after the event. At the end of trial, the court ruled
in CSC’s favor, finding that it had presented sufficient evidence
linking Mr. Skivington to the debt owed to UC Health.
¶5 Two weeks later, Mr. Skivington filed a C.R.C.P. 59 motion for
a new trial, which the trial court denied.
II. Discussion
¶6 Mr. Skivington contends on appeal that the trial court erred by
(1) denying his Rule 12(b)(5) motion to dismiss because CSC’s
complaint failed to state a plausible claim; (2) admitting CSC’s
Exhibits 2 and 4; and (3) denying his Rule 59 motion for a new trial.
We address and reject each of these contentions in turn.
A. Denial of Motion to Dismiss
¶7 Mr. Skivington first contends that the trial court erred by
denying his Rule 12(b)(5) motion to dismiss for failure to state a
2 claim. But we conclude that the court’s denial of that motion isn’t
reviewable.1
¶8 No published Colorado appellate court decision addresses
specifically whether an order denying a motion to dismiss for failure
to state a claim is reviewable after a trial on the merits. But the
Colorado Supreme Court has addressed a similar issue — whether
the denial of a motion for summary judgment is appealable after a
trial. And it has held that such a denial isn’t reviewable, whether
based on a question of law or the existence of disputed issues of
material fact. Feiger, Collison & Killmer v. Jones, 926 P.2d 1244,
1250 (Colo. 1996); Manuel v. Fort Collins Newspapers, Inc., 631 P.2d
1114 (Colo. 1981).
¶9 As it has explained,
[t]his holding comports with the purpose of a summary judgment motion — to expeditiously dispose of cases that can be decided without the expense and delay associated with trial at an early stage in the litigation. This objective is no longer achievable after a full trial on the merits. . . . In particular, foreclosing appellate review of a trial court’s determination that a
1 And, in any event, we conclude that CSC’s complaint contains sufficient factual allegations that, if accepted as true, state a claim for relief that is plausible on its face. See Warne v. Hall, 2016 CO 50, ¶ 1.
3 trial on the merits is warranted underscores the principle that a summary judgment motion appropriately is granted only in the clearest of circumstances and reinforces the understanding that the trial court is best- situated to render that determination in the first instance.
Feiger, Collison & Killmer, 926 P.2d at 1250 (citations omitted).
¶ 10 Perhaps more importantly, appellate review of such an order
“could lead to the absurd result” of depriving a prevailing party —
“after a full trial and a more complete presentation of the evidence”
— of its favorable verdict for its failure to prove its case earlier in
the litigation. Manuel, 631 P.2d at 1117 (quoting Navajo Freight
Lines, Inc. v. Liberty Mut. Ins. Co., 471 P.2d 309, 313 (Ariz. Ct. App.
1970)). As a matter of fairness, therefore, “a final judgment should
be tested upon the record as it exists at the time it is rendered,
rather than at the time the motion for summary judgment is denied
since further evidence may be supplied at trial.” Rick’s Pro Dive ’N
Ski Shop, Inc. v. Jennings-Lemon, 803 S.W.2d 934, 935 (Ark. 1991).
¶ 11 Courts in other jurisdictions have held that the rationale for
this rule “applies with equal force” to motions to dismiss for failure
to state a claim. See, e.g., Nolfi v. Ohio Ky. Oil Corp., 675 F.3d 538,
545 (6th Cir. 2012). We agree. After all, the purpose of a motion to
4 dismiss for failure to state a claim “is to test the formal sufficiency
of the complaint” so as “to permit early dismissal of meritless
claims,” Dorman v. Petrol Aspen, Inc., 914 P.2d 909, 911, 915 (Colo.
1996), and that purpose is no longer achievable if the plaintiff
prevails after a full trial on the merits, Bennett v. Pippin, 74 F.3d
578, 585 (5th Cir. 1996). As well, “the sufficiency of the allegations
in the complaint [becomes] irrelevant” following the trial; the
plaintiff “has proved, not merely alleged, facts sufficient to support
relief.” Id. And relatedly,
[t]he policy behind the Rules of Civil Procedure is to resolve controversies on the merits, not on technicalities of pleading. . . . This is especially true in light of the liberal pleading now allowed, the relatively free availability of amendments, and the affirmative duty of the opponent to object to evidence as outside the pleadings.
Concrete Serv. Corp. v. Inv’rs Grp., Inc., 340 S.E.2d 755, 758 (N.C.
Ct. App. 1986) (citation omitted). Indeed, “[t]he arguments for not
considering an appeal from a denial of a . . . dismissal [for failure to
state a claim] are stronger than those for not considering a refusal
to dismiss under Rule 56, given the ease with which a plaintiff may
5 amend a complaint after judgment in order to conform to the
evidence.” Bennett, 74 F.3d at 585.
¶ 12 We therefore hold that a denial of a motion to dismiss for
failure to state a claim isn’t reviewable on appeal following a trial on
the merits. See also ClearOne Commc’ns, Inc. v. Biamp Sys., 653
F.3d 1163, 1172 (10th Cir. 2011) (“[A]s a general rule, a defendant
may not, after a plaintiff has prevailed at trial, appeal from the
pretrial denial of a . . . motion to dismiss [for failure to state a
claim], but must instead challenge the legal sufficiency of the
plaintiff’s claim through a motion for judgment as a matter of law.”);
Simon v. Jackson, 855 So. 2d 1026, 1030 (Ala. 2003) (the denial of a
motion to dismiss for failure to state a claim is moot after a trial on
the merits); Denali Real Estate, LLC v. Denali Custom Builders, Inc.,
926 N.W.2d 610, 621 (Neb. 2019) (same); Raider Ranch, LP v.
Lugano, Ltd., 579 S.W.3d 131, 133 (Tex. App. 2019) (the denial of
motion to dismiss for failure to state a claim isn’t reviewable
following a trial on the merits); cf. W. Fire Truck, Inc. v. Emergency
One, Inc., 134 P.3d 570, 577 (Colo. App. 2006) (an order denying a
motion for judgment on the pleadings isn’t reviewable on appeal). It
6 follows that we won’t consider Mr. Skivington’s challenge to the trial
court’s denial of his Rule 12(b)(5) motion.
B. Admission of Exhibits 2 and 4
¶ 13 During its case-in-chief, CSC introduced a document marked
as Exhibit 2 to prove that UC Health correctly billed Mr. Skivington,
and not some other patient, for the medical services it rendered in
2017. Exhibit 2 is an internal UC Health document showing inputs
of Mr. Skivington’s personally identifiable information, including his
name, address, date of birth, and social security number. It shows
that the hospital input information on three occasions: the first
includes Mr. Skivington’s first name (Paul); the second includes his
address and phone number; and the third includes his full name
(Paul Skivington), date of birth, and social security number.
Mr. Skivington objected to the admission of the exhibit
because CSC had failed to disclose it to him before trial. CSC’s
counsel acknowledged his failure to disclose Exhibit 2 previously
but explained that CSC only sought to introduce the exhibit in
“anticipation of Mr. Skivington’s defense of: I don’t know why I’m
here.” The court considered Exhibit 2 as “[p]rophylactic rebuttal”
evidence and admitted it over Mr. Skivington’s objection.
7 ¶ 14 CSC also introduced Exhibit 4, which is an itemization of UC
Health’s charges. It appears that CSC introduced this exhibit to
prove identity as well, and to prove the amount owed. Mr.
Skivington didn’t object.
¶ 15 Mr. Skivington contends that the trial court erred by admitting
Exhibit 2 because (1) CSC didn’t timely disclose it in accordance
with C.R.C.P. 16.1(k)(6); and (2) it includes his personal identifying
information, and so admitting it into evidence violated the Health
Insurance Portability and Accountability Act (HIPAA) of 1996, 42
U.S.C. §§ 1320d to 1320d-9 (2018). He contends that the court
erred by admitting Exhibit 4 because it, too, contains his personal
identifying information. These contentions fail.
1. Standard of Review
¶ 16 We review a trial court’s evidentiary rulings for an abuse of
discretion. Scholle v. Delta Air Lines, Inc., 2019 COA 81M, ¶ 16. A
trial court abuses its discretion when its ruling is manifestly
arbitrary, unreasonable, or unfair, or based on a misapplication or
misunderstanding of the law. Bd. of Cty. Comm’rs v. DPG Farms,
LLC, 2017 COA 83, ¶ 34.
8 2. Analysis
¶ 17 Rebuttal evidence “may take a variety of forms, including ‘any
competent evidence which explains, refutes, counteracts, or
disproves the evidence put on by the other party, even if the
rebuttal evidence also tends to support the party’s case-in-chief.’”
People v. Welsh, 80 P.3d 296, 304 (Colo. 2003) (quoting People v.
Rowerdink, 756 P.2d 986, 994 (Colo. 1988)). The party offering
rebuttal evidence must show that the evidence is relevant to rebut
the adverse party’s claim, theory, witness, or other evidence. Id.
¶ 18 At trial, CSC’s counsel explained that CSC sought to introduce
Exhibit 2 for the sole purpose of rebutting Mr. Skivington’s
anticipated defense — that UC Health had mistakenly identified
him as the patient who had received the medical services at issue.
The trial court admitted Exhibit 2 for that limited purpose. And
mistaken identity was, in fact, the defense Mr. Skivington raised
after CSC’s case-in-chief. The exhibit therefore qualified as rebuttal
evidence, admissible in the district court’s discretion.
¶ 19 Mr. Skivington’s position also rests on an overly restrictive
interpretation of C.R.C.P. 16.1(k)(6). True, that rule requires parties
to identify and exchange trial exhibits at least thirty-five days before
9 trial, and C.R.C.P. 16.1(k)(1)(A) requires that documents relevant to
a party’s claims or defenses be included in a party’s initial
disclosures. See also C.R.C.P. 26(a)(1)(B). But the supreme court
has held that the sanction of evidence preclusion for a failure to
disclose in accordance with such rules “is inappropriate if the
lateness of the disclosure is harmless to the other party.” Todd v.
Bear Valley Vill. Apartments, 980 P.2d 973, 979 (Colo. 1999). This
is so even if the late disclosing party can’t show a substantial
justification for the violation: even in such a case, “the inquiry is
not whether the new evidence is potentially harmful to the opposing
side’s case. Instead, the question is whether the failure to disclose
the evidence in a timely fashion will prejudice the opposing party by
denying that party an adequate opportunity to defend against the
evidence.” Id.
¶ 20 Mr. Skivington hasn’t presented any coherent argument
explaining how he was unfairly prejudiced by the admission of
Exhibit 2. He had an adequate opportunity to respond to the
exhibit at trial, and there was ample other evidence that he was the
patient who had incurred the charges. And we can’t help but note
that Mr. Skivington’s post-trial Rule 59(d) motion essentially
10 conceded that he was the patient who had been admitted to UC
Health on the relevant date because of a stroke. See In re Marriage
of Antuna, 8 P.3d 589, 593 (Colo. App. 2000) (no abuse of discretion
in allowing rebuttal expert to testify despite claimed noncompliance
with C.R.C.P. 26 disclosure requirement); Rice v. Dep’t of Corr., 950
P.2d 676, 681 (Colo. App. 1997) (no abuse of discretion in allowing
unendorsed witness to testify in rebuttal where other party failed to
explain how he was prejudiced).
¶ 21 Mr. Skivington’s contention that the trial court violated HIPAA
by admitting Exhibits 2 and 4 also fails. First off, he didn’t raise
this issue with the trial court, and we don’t consider issues raised
for the first time on appeal. See Estate of Stevenson v. Hollywood
Bar & Cafe, Inc., 832 P.2d 718, 721 n.5 (Colo. 1992) (“Arguments
never presented to, considered or ruled upon by a trial court may
not be raised for the first time on appeal.”). But if HIPAA applies to
any of the information in Exhibits 2 and 4, the proper remedy
would have been to redact portions of the exhibits disclosing
nonessential personal identifying information (or perhaps to receive
the exhibits under seal), not to exclude the exhibits.
11 C. Motion for a New Trial
¶ 22 Mr. Skivington contends that the trial court erred by denying
his motion for a new trial because (1) irregularities in the trial
proceedings prevented him from having a fair trial and (2) he
produced newly discovered evidence that he couldn’t have
reasonably discovered before trial “that would change the result of
the trial.” Again, we aren’t persuaded.
1. Standard of Review and Applicable Law
¶ 23 We review a trial court’s ruling on a Rule 59 motion for a new
trial for an abuse of discretion. See Sch. Dist. No. 12 v. Sec. Life of
Denver Ins. Co., 185 P.3d 781, 786 (Colo. 2008); Aspen Skiing Co. v.
Peer, 804 P.2d 166, 172 (Colo. 1991). We won’t disturb the court’s
ruling unless it was manifestly arbitrary, unreasonable, or unfair,
or based on a misapplication or misunderstanding of the law. DPG
Farms, ¶ 34.
¶ 24 As now relevant, under the rule, a trial court may grant a new
trial on the grounds of “[a]ny irregularity in the proceedings by
which any party was prevented from having a fair trial[,]” or “[n]ewly
discovered evidence, material for the party making the application
12 which that party could not, with reasonable diligence, have
discovered and produced at the trial[.]” C.R.C.P. 59(d)(1), (4).
2. Analysis
a. Irregularities in the Trial Proceedings
¶ 25 Mr. Skivington argues that irregularities in trial proceedings
prevented him from having a fair trial.
¶ 26 First, he argues that the trial court’s failure to allow him to
respond to Exhibit 2 deprived him of a fair trial. But contrary to his
contention, the trial court gave Mr. Skivington multiple chances to
respond to Exhibit 2 at trial.
¶ 27 Second, he argues that the court shouldn’t have asked
questions of CSC’s counsel concerning the admissibility of Exhibit
2. But he didn’t raise this issue with the trial court, so we won’t
address it. Estate of Stevenson, 832 P.2d at 721 n.5.
¶ 28 Third, he argues that the trial court rushed the trial, trying to
get it done during a break in another trial. He doesn’t argue,
however, that, as a result, he was unable to present any evidence
he wished to introduce or to make any argument on the merits that
he wished to make. He argues instead that “[t]his caused the trial
court . . . to be preoccupied with other things and unable to give full
13 mindfulness to this case.” But the record doesn’t bear out this
conclusory assertion.
b. Newly Discovered Evidence
¶ 29 Mr. Skivington asserted in his Rule 59 motion for a new trial
that his stroke had caused him to sustain long-term memory loss of
the event, and that he had started to recover his lost memory two
days after the trial. He argued that his recovered memory helped
him gain access to his UC Health patient portal, which allowed him
to locate a report from the attending physician who had treated him
after his stroke. The portion of that report on which Mr. Skivington
relies provides as follows:
DATE OF ADMISSION: February 28, 2017
DATE OF DISCHARGE: March 1, 2017
HOSPITAL COURSE: The patient was admitted via the Mobile Stroke Unit with a stroke syndrome. Telestroke neurologists advised t-PA. The patient was administered t-PA. On arrival to the ICU, he complained of being sleep-deprived and checked out against medical advice.
¶ 30 Mr. Skivington argues that this “newly discovered” evidence,
which he couldn’t have discovered before trial, would change the
14 result of the trial. He says that the report proves that he couldn’t
have received medical services amounting to $30,536.10 because he
discharged himself from the hospital immediately after arriving to
the ICU. His argument fails procedurally and substantively.
¶ 31 After being served with the complaint, Mr. Skivington knew
that CSC was suing him for his failure or refusal to pay for medical
services that UC Health claimed it had provided to him. Had he
acted prudently and diligently during the discovery phase of the
case and requested any relevant documents UC Health may have
had relating to the debt, he could have discovered the attending
physician’s report well before trial. Indeed, he didn’t even need to
contact UC Health to obtain the document. In his post-trial motion,
he said that he obtained the document after trial by accessing UC
Health’s “patient portal.” His only explanation for not doing that
sooner was that two days after trial he started to “recover
memories” that he had in fact been in the hospital. But his memory
loss can’t account for his failure to earlier access the patient portal.
Regardless whether he recalled the incident, he knew that CSC was
suing him for a debt owed to UC Health, what services UC Health
was claiming it had provided, and what UC Health was claiming he
15 owed. He knew as well the dates of his alleged stay at the hospital
and had obtained documents from CSC (including UC Health
documents) before and during the case. Thus, we conclude that the
report isn’t newly discovered evidence.
¶ 32 In any event, the trial court didn’t abuse its discretion by
denying Mr. Skivington’s motion because the report wouldn’t have
changed the outcome of the trial. Mr. Skivington correctly notes
that the report says that he discharged himself after arriving at the
ICU.2 But the report doesn’t indicate that he did so immediately on
arriving on February 28. To the contrary, it says, at least twice,
that he did so the next day, March 1. And other evidence submitted
by CSC also shows that he stayed at the hospital overnight.
III. Conclusion
¶ 33 The judgment and order are affirmed.
JUDGE HARRIS and JUDGE BROWN concur.
2 It doesn’t say the ICU was his first treatment stop at the hospital.