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De Avila v. Estate of DeHerrera3/13/2003
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Ney and Ruland, JJ., concur
Plaintiff, Francisco Hernandez De Avila, appeals from an amended judgment against defendant, Estate of Emilio DeHerrera (decedent), reducing the prior judgment in the sum of $613,700 plus interest to a sum of $100,000 plus interest and costs. We reverse and remand for reinstatement of the original judgment.
On March 18, 1997, plaintiff was injured in an accident while riding as a passenger in a truck driven by decedent. Because no personal representative had been appointed for decedent's estate, plaintiff filed a petition on February 16, 1999, seeking his own appointment. However, decedent's widow was ultimately appointed.
On March 3, 2000, plaintiff filed the present personal injury action. Defendant's answer asserted as an affirmative defense that "Plaintiff's claims are barred or limited by the provisions of the probate code, including but not limited to C.R.S. § 15-12-801, et seq." However, the defense was not mentioned during the trial.
Following a jury verdict, judgment was entered in favor of plaintiff. Defendant subsequently moved to vacate or amend the judgment pursuant to C.R.C.P. 59 and 60 based on § 15-12-801, et seq. The court granted the motion and reduced the amount of judgment as indicated above. In doing so, the court found as follows:
[Section 15-12-803(3)(b), C.R.S. 2002,] provides that claims brought four months or more after the death of the decedent are barred except that this proceeding against the defendant, or estate or personal representative may be brought "to the limits of the insurance protection only." The record reflects that this action was brought more than four months after the death of the decedent, at which time the claim arose. The record reflects that the limits of the insurance protection in this case are $100,000.
I.
Initially, we conclude that the sixty-day period for granting the motion to amend judgment under C.R.C.P. 59(j) had expired.
Automatic denial under C.R.C.P. 59(j) is mandatory. When the court fails to rule within sixty days, the judgment becomes final, and the court loses jurisdiction. Actions taken under C.R.C.P. 59 after the sixty-day period are outside the court's jurisdiction and are void. See Driscoll v. District Court, 870 P.2d 1250 (Colo. 1994).
Here, defendant filed a timely motion to vacate or amend judgment pursuant to both C.R.C.P. 59 and 60 on June 25, 2001, but the amended judgment was not signed until January 7, 2002. Therefore, the court was without jurisdiction to amend the judgment under C.R.C.P. 59.
II.
However, we conclude the court had jurisdiction to rule under C.R.C.P. 60.
Divestiture of jurisdiction under C.R.C.P. 59 does not preclude the court from considering motions made under C.R.C.P. 60. See Canton Oil Corp. v. District Court, 731 P.2d 687 (Colo. 1987)(holding that failure to rule within sixty days under C.R.C.P. 59 did not bar relief under defendants' C.R.C.P. 60(b) motion where misconduct was extraordinary). Thus, defendant's motion to amend theoretically could have been granted under C.R.C.P. 60.
III.
Nonetheless, we conclude that relief was not warranted under C.R.C.P. 60, and the court therefore erred in amending the judgment.
C.R.C.P. 60(b) provides in pertinent part:
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) Mistake, inadvertence, surprise, or excusable neglect . . . (3) the judgm
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