 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Guevara v. Foxhoven5/2/1996
In this personal injury action, defendant, Donald P. Foxhoven, appeals from the judgment in favor of plaintiff, Wilfredo A. Guevara, and from the denial of a C.R.C.P. 60(b) motion to vacate the judgment. We dismiss the appeal in part and affirm it in part.
In January 1994, the parties were involved in an automobile accident. Approximately one year later, plaintiff filed suit seeking damages against defendant alleging that defendant had been negligent and had caused the accident.
An attorney retained by defendant's insurance carrier entered an appearance on defendant's behalf and answered the complaint. Shortly thereafter, defendant's personal attorney -- retained prior to the filing of plaintiff's complaint -- together with defendant's insurance attorney, filed an amended answer and counterclaim. The counterclaim mirrored plaintiff's claim and sought damages from plaintiff arising from the accident.
Defendant's insurance attorney then submitted to plaintiff's attorney an offer of settlement in the amount of $1,500 pursuant to the statute then in effect, Colo. Sess. Laws 1990, ch. 100, ยง 13-17-202(3) at 852-53. The offer was accepted and the trial court subsequently entered judgment on it on March 27, 1995, and dismissed the action with prejudice.
Defendant's insurance attorney then filed a motion to amend the judgment seeking reinstatement of defendant's counterclaim. He asserted that the offer of settlement only went to plaintiff's claim against defendant and was not intended to affect defendant's counterclaim. The trial court denied this motion on May 1, 1995.
Defendant's insurance attorney then moved to set aside the judgment pursuant to C.R.C.P. 60(b)(1) and (5). He again asserted that the offer of settlement was not meant to affect defendant's counterclaim. The trial court denied this motion on July 29, 1995, and defendant filed a notice of appeal on August 14.
I.
At the outset, while neither party addressed this issue, we must determine whether defendant's notice of appeal was timely and, thus, whether we have subject matter jurisdiction over this appeal. To the extent that defendant seeks review of the judgment dismissing the action or the order denying the motion to amend the judgment, we conclude that the appeal must be dismissed.
C.A.R. 4(a) requires that a notice of appeal be filed within 45 days of the entry of the order from which the party appeals. However, if a C.R.C.P. 59 motion is timely filed, the time for filing a notice of appeal commences when the trial court determines the motion or when the motion is deemed denied under the rule. See C.R.C.P. 59(j) and (k); Stone v. People, 895 P.2d 1154 (Colo. App. 1995).
Defendant timely filed a motion to amend the trial court's order dismissing the complaint and the trial court denied that motion within the 60-day period permitted under C.R.C.P. 59(j). Thus, defendant had 45 days in which to file a notice of appeal as to the order of dismissal and the order denying the motion to amend. See C.A.R. 4(a). Since defendant did not file his notice of appeal until well after that 45-day period had expired, the appeal is untimely as to these orders, and we must dismiss this part of the appeal. See Widener v. District Court, 200 Colo. 398, 615 P.2d 33 (1980).
However, because an order denying a C.R.C.P. 60(b) motion is appealable independently of an underlying judgment, and the noti
Page 1 2 3 4 Colorado Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|