Colorado Adopts an Expanded Frow Rule: A Defaulting Defendant May Testify at a Codefendant’s Trial, and Inconsistent Default Judgments Must Yield to Merits Verdicts

I. Introduction

In J.B. v. MKBS, LLC, 2026 CO 50, the Colorado Supreme Court addressed a procedurally unusual but practically important scenario: a defendant (Ortiz) defaults in a multi-defendant tort suit, yet later becomes a key witness for the answering codefendant (MKBS) at trial. After MKBS wins a defense verdict—driven in part by the defaulted defendant’s testimony denying the core misconduct—the trial court (i) sets aside the default judgment against Ortiz and (ii) enters judgment for Ortiz in harmony with the jury’s verdict.

The case arises from allegations that Jesus Manuel Ortiz, a taxi driver employed by MKBS, LLC, sexually assaulted E.B., an adult with significant disabilities, while transporting her. J.B., E.B.’s guardian and personal representative, sued Ortiz for intentional torts and sued MKBS under negligence theories and vicarious liability theories. Ortiz did not answer, resulting in a clerk’s default. MKBS answered and proceeded to trial.

The key issues were:

  • whether a defaulting defendant may testify at a non-defaulting codefendant’s trial contrary to facts deemed admitted by the default;
  • whether the trial court properly set aside the default judgment under C.R.C.P. 60(b) (via Rule 55(c)); and
  • whether a merits verdict for the codefendant permits (or requires) judgment for the defaulting defendant to avoid inconsistent outcomes—invoking and expanding Frow v. De La Vega, 82 U.S. 552 (1872).

II. Summary of the Opinion

The Court (Justice Hood) affirmed the court of appeals and the district court on all contested rulings:

  1. The district court did not abuse its discretion by allowing Ortiz to testify for MKBS, even though his testimony contradicted the allegations deemed admitted by his default.
  2. The district court did not abuse its discretion by setting aside the default judgment against Ortiz under the three-factor excusable neglect framework of Goodman Assocs., LLC v. WP Mountain Props., LLC, 222 P.3d 310 (Colo. 2010).
  3. To avoid “unseemly and absurd” inconsistent results, the Court adopted and expanded the Frow principle: where defendants are “similarly situated” or have “closely related defenses,” a default judgment inconsistent with a merits judgment should not stand. Accordingly, judgment for Ortiz was proper in light of MKBS’s jury verdict that no assault occurred and no damages were suffered.

Chief Justice Marquez dissented, arguing that the majority misapplied Frow, undermined default procedure, and effectively rewarded Ortiz’s default while depriving J.B. of a trial against him.

III. Analysis

A. Precedents Cited

1. Colorado default principles: what default admits (and what it does not)

  • Pinkstaff v. Black & Decker (U.S.) Inc., 211 P.3d 698 (Colo. 2009): the Court relied on Pinkstaff for the baseline proposition that entry of default deems the complaint’s material allegations admitted as to the defaulting defendant; only damages remain. Here, that principle framed the tension: Ortiz had admitted the assault allegations “as to that defendant,” yet later denied them when testifying for MKBS.
  • Kwik Way Stores, Inc. v. Caldwell, 745 P.2d 672 (Colo. 1987): reinforced the liability/damages distinction—default establishes liability but does not fix damages—supporting the Court’s continued view that default’s primary effect is procedural (removing liability from dispute) rather than a merits adjudication equivalent to a jury verdict.
  • Dickinson v. Lincoln Bldg. Corp., 2015 COA 170M: used for the rule that a defaulting defendant may not contest liability at a Rule 55(b)(1) damages hearing. The Court contrasted that rule with the absence of any rule explicitly barring a defaulted party from testifying as a witness at a different defendant’s trial.
  • Bettcher v. State ex rel. Att’y Gen., 344 P.2d 969 (Colo. 1959): cited for the general statement that a defaulting party is precluded from “urging anything contrary to the complaint.” The Court effectively limited Bettcher’s force to contexts where the defaulting party is litigating its own liability (not merely giving testimony in another party’s trial).

2. Trial-court discretion and evidentiary framing

  • Murray v. Just In Case Bus. Lighthouse, LLC, 2016 CO 47M: provided the standard for reviewing witness-testimony rulings (abuse of discretion).
  • CRE 402 and Pub. Utils. Comm’n v. Donahue, 335 P.2d 285 (Colo. 1959): supported the Court’s emphasis on admissibility of relevant evidence and parties’ fair opportunity to present pertinent facts.
  • Warembourg v. Excel Elec., Inc., 2020 COA 103 and People v. Jackson, 2018 COA 79, aff’d, 2020 CO 75: invoked to highlight the “truth-seeking function” and why firsthand accounts are important to the factfinder—especially where the witness (Ortiz) was one of only two people present during the alleged assault.

3. Setting aside default judgments: the Goodman framework and Colorado’s merits preference

  • McMichael v. Encompass PAHS Rehab. Hosp., LLC, 2023 CO 2: reaffirmed that default judgments are disfavored and reviewed for abuse of discretion. The Court used McMichael to ground its “preference for resolving cases on the merits.”
  • R.F. v. D.G.W., 560 P.2d 837 (Colo. 1977): emphasized that default is not meant to “catch the unwary or even the negligent,” supplying policy support for leniency in appropriate cases.
  • Goodman Assocs., LLC v. WP Mountain Props., LLC, 222 P.3d 310 (Colo. 2010): the controlling Colorado test—excusable neglect, meritorious defense, and equity—liberally construed in favor of the defaulting party.
  • In re Weisbard, 25 P.3d 24 (Colo. 2001): cited via Goodman for the line between excusable neglect and “common carelessness.”
  • Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112 (Colo. 1986): provided equity subfactors such as promptness, reliance, and prejudice.

4. Federal guidance and Colorado’s adoption/expansion of the “no inconsistent default judgment” rule

  • Ferraro v. Frias Drywall, LLC, 2019 COA 123 and Brown v. Walker Com., Inc., 2022 CO 57: used to justify consulting federal decisions when Colorado rules resemble federal counterparts.
  • Henry v. Oluwole, 108 F.4th 45 (2d Cir. 2024): the Court’s closest factual analogue: a defaulting employee testified at an employer’s trial, the jury found no assault, and the federal court applied Frow-type logic to avoid inconsistent judgments. The Colorado Supreme Court treated Henry as instructive both for admitting testimony and for harmonizing outcomes.
  • Frow v. De La Vega, 82 U.S. 552 (1872): the Court adopted and expanded the Frow principle, calling it “unseemly and absurd” to allow default to create a result inconsistent with a merits judgment.
  • In re Water Rts. of Elk Dance Colo., LLC, 139 P.3d 660 (Colo. 2006): cited to connect consistency of judgments with public confidence and reliance on the judicial system.
  • Moore v. Booth, 122 F.4th 61 (2d Cir. 2024): quoted for the proposition that Frow “prohibits a default judgment that is inconsistent with a judgment on the merits.”
  • Schenck v. Van Ningen, 719 P.2d 1100 (Colo.App. 1986): cited to support extending the no-inconsistent-judgment principle to defendants with closely related defenses even if not technically jointly liable.

B. Legal Reasoning

1. A default’s admissions bind the defaulter—but do not gag the witness in a codefendant’s trial

The Court began with orthodox Rule 55 doctrine: default admits the complaint’s allegations and removes liability from dispute as to the defaulting party (Pinkstaff; Kwik Way Stores). But the Court drew a sharp line between:

  • litigating one’s own liability (where default prevents contesting the complaint’s factual basis, including at a Rule 55(b)(1) damages hearing (Dickinson; Bettcher)), and
  • serving as a witness in a different party’s trial, where the rules contain no express prohibition and where relevant evidence is presumptively admissible (CRE 402).

On this view, Ortiz’s testimony was admissible because MKBS was entitled to defend itself with relevant, firsthand evidence; excluding Ortiz would materially prejudice MKBS because he was a direct witness to the event. The Court stressed that the jury was instructed about the legal effect of Ortiz’s default, attempting to cabin any confusion about his status.

2. Setting aside the default judgment: Goodman applied in a manner consistent with the “merits preference”

Under Rule 55(c) and Rule 60(b), Ortiz had the burden to show by clear and convincing evidence that the default judgment should be set aside (Goodman). The Court upheld the district court’s application of the three Goodman factors:

  1. Excusable neglect: Ortiz claimed confusion about representation—believing his employer’s counsel represented him because the incident occurred on the job, and also being confused after having a public defender in his criminal case and then being acquitted. The Court treated this as potentially reasonable for an unsophisticated litigant under an objective standard (Goodman; In re Weisbard).
  2. Meritorious defense: The Court accepted the jury’s finding in MKBS’s trial (no assault; no damages) as demonstrating a meritorious defense, and noted Ortiz’s criminal acquittal as additional support (even though the acquittal itself was excluded from evidence at the civil trial).
  3. Equity: Ortiz moved promptly after the default judgment entered; J.B. waited nearly two years after the clerk’s default to seek a default judgment; and J.B. could not show substantial prejudice beyond ordinary litigation costs (Buckmiller; Henry (2d Cir.) citing Davis v. Musler, 713 F.2d 907 (2d Cir. 1983)).

3. The new Colorado rule: expanded Frow to similarly situated defendants / closely related defenses

The opinion’s most consequential doctrinal move is its explicit adoption and expansion of Frow. The Court held that Colorado will prohibit default judgments inconsistent with merits judgments not only where defendants are jointly liable, but also where they are “similarly situated” or have “closely related defenses” even without joint liability.

Applied here, the jury’s verdict for MKBS necessarily rested on rejecting the underlying assault allegation and finding no injury/damages. A default judgment against Ortiz premised on the complaint’s allegations would directly contradict that merits determination. To avoid that inconsistency, the Court approved vacatur of the default judgment and entry of judgment for Ortiz.

C. Impact

1. Practical effects in multi-defendant litigation

  • Default no longer ensures a separate plaintiff-only damages path if a codefendant proceeds to trial and obtains a verdict negating the factual predicate shared with the defaulted party. Plaintiffs must account for the risk that a defense verdict for an answering defendant may erase the functional value of a default against a non-answering defendant.
  • Defaulted parties may become key defense witnesses: the decision authorizes calling the defaulted defendant as a witness for the answering defendant, even if the testimony contradicts default admissions—so long as the testimony is otherwise admissible and the trial is not the defaulter’s damages hearing.
  • Procedural strategy matters: the Court relied in part on J.B.’s delay in seeking default judgment after the clerk’s default. The case implicitly warns plaintiffs that waiting to convert a clerk’s default into a default judgment may reduce reliance arguments and increase the chance that later merits developments will control.

2. Doctrinal effects: expanded Frow becomes Colorado law

By adopting and expanding Frow, the Court supplies Colorado trial courts with a harmonization tool in cases involving overlapping factual predicates across defendants. Expect future disputes over:

  • what qualifies as “similarly situated” defendants;
  • what counts as “closely related defenses”;
  • how to treat verdicts that resolve some but not all overlapping elements (e.g., no damages vs. no liability); and
  • whether and when a trial court should delay entry of default judgment pending resolution of claims against answering defendants (a practice some federal courts employ under Frow-type logic).

3. The dissent’s warning as a likely litigation roadmap

Chief Justice Marquez’s dissent argues the majority:

  • misreads Frow as broader than joint-liability contexts;
  • ignores Frow language suggesting the defaulter should not “appear” or “adduce” evidence in proceedings against codefendants; and
  • creates perverse incentives by allowing a defaulting defendant to benefit from participation that default rules traditionally curtail.

Those points will likely reappear in future cases as litigants contest the outer bounds of “expanded Frow” and attempt to distinguish between (i) preventing inconsistent judgments and (ii) preserving default’s accountability function.

IV. Complex Concepts Simplified

  • Clerk’s entry of default (C.R.C.P. 55(a)) vs. default judgment (C.R.C.P. 55(b)): a clerk’s default is the procedural event that treats allegations as admitted as to the defaulter. A default judgment is the court’s enforceable judgment (usually after determining damages). This case turned on that distinction because Ortiz moved to set aside the default judgment, and the Court evaluated prejudice and reliance with that timing in mind.
  • “Excusable neglect”: not every failure to respond is excusable. The test is objective—would a reasonably careful person have made a similar mistake? (Goodman). Here, confusion about representation and criminal/civil process overlap was deemed potentially reasonable.
  • “Meritorious defense”: the defaulting party must show there is a real defense worth adjudicating, not merely a desire to relitigate. The Court treated the codefendant’s trial verdict (no assault; no damages) as strong evidence of a defense.
  • The expanded “Frow rule”: you generally cannot have two court outcomes that logically cannot both be true (e.g., one judgment saying an assault occurred and caused damages, and another merits verdict saying it did not and caused none) when defendants are similarly situated or share closely related defenses. Colorado now treats avoiding that contradiction as a reason to vacate a default judgment and enter a consistent judgment.

V. Conclusion

J.B. v. MKBS, LLC establishes two highly consequential principles in Colorado civil procedure:

  1. A defaulting defendant may testify as a witness at a non-defaulting codefendant’s trial—even contrary to default-admitted allegations—because the trial is about the codefendant’s liability, and relevant evidence is generally admissible absent a specific prohibition.
  2. Colorado now adopts and expands the Frow principle: when defendants are similarly situated or have closely related defenses, courts should not allow a default judgment inconsistent with a merits judgment and may enter judgment for the defaulting defendant to harmonize results.

The decision elevates consistency and merits adjudication over the traditional deterrent and accountability features of default—an approach forcefully questioned in dissent. Going forward, litigants should expect intensified strategic focus on sequencing (default judgment timing), verdict form design, and how broadly trial outcomes are deemed to resolve overlapping factual predicates across defendants.