McElvaney v. Batley
| Decision Date | 15 August 1991 |
| Docket Number | 90CA1976,Nos. 90CA1132,s. 90CA1132 |
| Citation | 824 P.2d 73 |
| Parties | Mignon D. McELVANEY, Plaintiff-Appellant, v. Craig W. BATLEY, Defendant-Appellee. . IV |
| Court | Colorado Court of Appeals |
Michael S. Rennich, Louisville, for plaintiff-appellant.
Rothgerber, Appel, Powers & Johnson, Franklin D. O'Loughlin, Samuel M. Ventola, Denver, for defendant-appellee.
Opinion by Chief Judge STERNBERG.
On October 30, 1986, the plaintiff, Mignon D. McElvaney, filed suit in Arapahoe County against the defendant, Craig A. Batley, and against Western Development and Investment Corporation. Both defendants answered, and Batley cross-claimed against Western.
Subsequently, no action having been taken by plaintiff for nearly two and one-half years, defendant Batley moved to dismiss for failure to prosecute. Plaintiff did not respond to the motion. On October 3, 1989, the court granted the motion to dismiss. Neither the motion nor the order granting it specified whether the dismissal was with or without prejudice.
Present counsel was retained by plaintiff, and an identical suit against defendant Batley was filed in Denver District Court on October 16, 1989.
On April 2, 1990, Batley filed a motion, seeking relief under C.R.C.P. 60(b)(1) and (5), asking the Arapahoe County District Court to clarify or amend the October 3, 1989, order of dismissal by specifying that the dismissal was with prejudice. Over plaintiff's objections, on May 22, 1990, that court granted the motion and amended its earlier order to show the case as dismissed with prejudice.
Thereafter, because the Arapahoe County case then stood as dismissed with prejudice, the Denver District Court likewise dismissed with prejudice the second suit. The plaintiff appealed both cases, and they have been consolidated for disposition. We reverse and remand both cases.
With regard to the original order of dismissal, the plaintiff argues that the clear language of the applicable rules of procedure require the dismissal to be without prejudice. We agree.
C.R.C.P. 121 § 1-10(5) provides that "Any dismissal under this rule shall be without prejudice unless otherwise specified by the court."
And, C.R.C.P. 41(b)(3) states:
A movant must specify whether the dismissal requested is to be with or without prejudice; there was no such specification made in defendant's motion. The rule also requires the court to so specify; however, the dismissal in this case was merely done by a stamp placed on the motion, and it did not indicate whether the dismissal was with or without prejudice. Thus, by C.R.C.P. 41(b)(3), the original order of dismissal entered on October 3, 1989, must be deemed to be without prejudice.
Nevertheless, the defendant contends that the trial court's "clarification" of its order of dismissal entered in response to defendant's C.R.C.P. 60(b) motion should stand because the plaintiff made no showing of excusable neglect for his failure to prosecute. In our view, this contention begs the question; it does not explain the defendant's failure in the first instance to request the dismissal be with prejudice.
C.R.C.P. 60(b) provides, in 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; ... or (5) any other reason justifying relief from the operation of the judgment."
The mistake, inadvertence, surprise, or excusable neglect subject to correction under C.R.C.P. 60(b)(1) must be that of a party to the action or his legal representative. Columbia Savings & Loan Ass'n v. District Court, 186 Colo. 212, 526 P.2d 661 (1974). One who seeks relief from a judgment has the burden...
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Goodman Associates v. Wp Mountain Properts.
...for obtaining relief from judgment are covered by C.R.C.P. 60(b)(1), and the residuary clause (5) is inapplicable); McElvaney v. Batley, 824 P.2d 73, 75 (Colo.App.1991) (finding relief under C.R.C.P. 60(b)(5) inappropriate where the only grounds upon which relief is sought are covered by ot......
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Guevara v. Foxhoven, 95CA1387
...v. Trinidad Area Health Ass'n, 752 P.2d 1062 (Colo.App.1988), and is unavailable under other clauses of the rule. McElvaney v. Batley, 824 P.2d 73 (Colo.App.1991). Appellate review of the denial of a C.R.C.P. 60(b) motion is limited to whether the trial court abused its discretion. Front Ra......
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Domenico v. Southwest Properties Venture, 94CA0686
...60(b)(5) is a residuary clause which covers situations not covered by the other clauses in that portion of the rule. McElvaney v. Batley, 824 P.2d 73 (Colo.App.1991). The resolution of a C.R.C.P. 60(b) motion cannot be overturned on appeal in the absence of an abuse of discretion by the tri......
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...with the gross negligence of counsel. See Tyler v. Adams County Department of Social Services, 697 P.2d 29 (Colo.1985); McElvaney v. Batley, 824 P.2d 73 (Colo.App.1991). However, even if we assume that the negligence of counsel in this case was not gross negligence, we are unable to conclud......
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COLORADO RULES OF CIVIL PROCEDURE
...Section (b)(5) is a residuary clause for application only in situations not covered by other sections in this rule. McElvaney v. Batley, 824 P.2d 73 (Colo. App. 1991); Domenico v. Sw. Props. Venture, 914 P.2d 390 (Colo. App. 1995). Section (b)(5) does not apply where motion is based on "fra......
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Rule 60 RELIEF FROM JUDGMENT OR ORDER.
...Section (b)(5) is a residuary clause for application only in situations not covered by other sections in this rule. McElvaney v. Batley, 824 P.2d 73 (Colo. App. 1991); Domenico v. Sw. Props. Venture, 914 P.2d 390 (Colo. App. 1995). Section (b)(5) does not apply where motion is based on "fra......
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RULE 60
...Section (b)(5) is a residuary clause for application only in situations not covered by other sections in this rule. McElvaney v. Batley, 824 P.2d 73 (Colo. App. 1991); Domenico v. Sw. Props. Venture, 914 P.2d 390 (Colo. App. 1995). Section (b)(5) does not apply where motion is based on "fra......