1. APPEAL AND ERROR — Motion to Set Aside Judgment — Denied — Motion for New Trial — Or — Alter or Amend — Jurisdictional Prerequisite — Appeal — No Controverted Fact Issue — Motion Not Required. Where defendant sought to appeal from trial court's denial of his motion filed pursuant to C.R.C.P. 60(b) to set aside a judgment previously entered against him, a timely motion for new trial, or to alter or amend the judgment is a jurisdictional prerequisite to such an appeal, and only if the hearing on the C.R.C.P. 60(b) motion involved no controverted issues of fact may defendant be excused from meeting that prerequisite.
Opinion by JUDGE ENOCH.
Defendant, Clarence Rowe, appeals from a judgment denying his C.R.C.P. 60(b) motion to set aside a judgment entered against him in favor of plaintiff, Watered Down Farms. Plaintiff cross-appeals from a modification of the original judgment made during the C.R.C.P. 60(b) hearing. As a result of a preargument conference held pursuant to C.A.R. 33, we issued an order to show cause why defendant's appeal should not be dismissed for failure to file a motion for new trial, C.R.C.P 59(f), and why plaintiff's cross-appeal should not be dismissed for failure to file a timely notice of appeal, C.A.R. 4(a). After considering their responses and the record filed in this case, we dismiss both defendant's appeal and plaintiff's cross-appeal.
[1] As to defendant's appeal, the final judgment appealed from is the denial of defendant's motion, pursuant to C.R.C.P. 60(b), to set aside the judgment previously entered against him. In general, a timely motion for a new trial, or to alter or amend the judgment, is a jurisdictional prerequisite to appellate review of such judgment. C.R.C.P. 59(f); Janicek v. Hinnen, 34 Colo. App. 68, 522 P.2d 113. Certain exceptions to this requirement are stated in C.R.C.P. 59(h), but a ruling on a motion under C.R.C.P. 60(b) is not listed as one of the exceptions. Therefore, only if the hearing on the C.R.C.P. 60(b) motion involved no controverted issues of fact was defendant excused from filing a motion for new trial, or to alter or amend the judgment. See C.R.C.P. 59(h).
We have considered the case of Fraka v. Malernee, 129 Colo. 87, 267 P.2d 651, and the dictum therein, and find it to be inapplicable inasmuch as that case was decided before C.R.C.P. 59 was changed to include subsection (h).
Here, the circumstances relevant to defendant's failure to appear for trial are not disputed. What is disputed are the inferences and conclusion to be drawn from these circumstances, i.e., whether or not defendant's failure to appear resulted from excusable neglect.
[2,3] Excusable neglect involves a situation where the failure to act results from circumstances which would cause a reasonably careful person to neglect a duty. Failure to act due to carelessness and negligence is not excusable neglect. Farmers Insurance Group v. District Court, 181 Colo. 85, 507 P.2d 865. Thus, just as in a tort action, the question is whether the party acted as a reasonably prudent person under the circumstances. See Hogue v. Colorado Southern Ry., 110 Colo. 552, 136 P.2d 276. Even where the facts are undisputed, the issue of negligence is for the trier of fact so long as fairminded persons may draw different conclusions or inferences from the evidence. Yockey Trucking Co. v. Handy, 128 Colo. 404, 262 P.2d 930.
[4] Here, the court had to draw inferences from the evidence in order to arrive at its conclusion. In deciding whether defendant's neglect was excusable, the court was acting as trier of fact and was deciding a controverted issue of fact as that term is used in C.R.C.P. 59(h). The issue of excusable neglect was decided against defendant and thus a motion for new trial addressed to the C.R.C.P. 60(b) ruling was required before defendant could seek review of that ruling.
[5] Plaintiff also did not file a motion for new trial after the court vacated its award of exemplary damages and body execution as a result of the C.R.C.P. 60(b) hearing. However, we need not address this issue because in any event plaintiff's notice of cross-appeal was not timely filed. Plaintiff's notice of cross-appeal was filed 17 days after defendant filed his notice of appeal, and 45 days after entry of the judgment appealed from. A notice of appeal must be filed within 30 days of entry of the judgment or order appealed from or within 14 days after another party files a notice of appeal, whichever period terminates later. C.A.R. 4(a). Here, neither time limit was met.
Furthermore, under the facts of this case plaintiff's cross-appeal was not perfected even if filed within the 14-day period because defendant's appeal was jurisdictionally defective.
[6] Plaintiff could have, but did not file his notice of appeal within 30 days after entry of judgment, which action would have protected his right of appeal regardless of defendant's actions. However, plaintiff waited until after expiration of the 30 days, and a cross-appeal filed after that period is valid only if the other party has in fact filed a "timely notice of appeal." A notice of appeal which is jurisdictionally defective is not a "timely notice of appeal" as contemplated in C.A.R. 4(a). Since defendant's appeal was defective as determinated above, plaintiff's notice of appeal filed after the 30-day period was not timely. Furthermore, plaintiff made no effort to obtain an extension of time for filing. See C.A.R. 4(a). Therefore we are without jurisdiction to entertain the cross-appeal. Chapman v. Miller, 29 Colo. App. 8, 476 P.2d 763.
This result works no hardship on a cross-appellant. As previously indicated, a party who is dissatisfied with a judgment may always file a notice of appeal within 30 days after entry of judgment, without regard to the actions of the other parties.
The appeal of defendant Rowe and the cross-appeal of plaintiff Watered Down Farms are dismissed.
JUDGE RULAND concurs.
JUDGE KELLY dissents.