Pistora v. Rendon, 87CA1650
| Decision Date | 25 November 1988 |
| Docket Number | No. 87CA1650,87CA1650 |
| Citation | 765 P.2d 1089 |
| Parties | Wayne M. PISTORA and Michelle Pistora, Plaintiffs-Appellants, v. Crystal D. RENDON, Defendant-Appellee. . I |
| Court | Colorado Court of Appeals |
Wilcox & Ogden, Ralph Ogden, Denver, for plaintiffs-appellants.
Robert Hibschweiler, Charles T. Trowbridge, Littleton, for defendant-appellee.
Wayne M. and Michelle Pistora appeal the dismissal with prejudice of their suit seeking damages for personal injuries sustained in an automobile collision with the defendant, Crystal D. Rendon. We reverse.
The accident occurred on February 7, 1986, and suit was filed on May 21 of that year. On August 24, 1987, Pistoras' counsel filed a trial data certificate in which the medical expenses were shown to total $1,800. By one provision of the "No Fault" Motor Vehicle Insurance Act, § 10-4-714, C.R.S. , an action such as this cannot be maintained unless medical expenses exceed a threshold requirement of $2,500. On August 27, Rendon moved for dismissal for failure to meet the threshold medical expense requirement.
The Pistoras did not respond directly to that motion. The trial court treated it "as being under C.R.C.P. 56 and as seeking a final order of judgment" and, on September 21, dismissed the action with prejudice. Two days later, however, the Pistoras moved that the action be dismissed without prejudice for failure to meet the threshold requirement and also filed a separate motion for reconsideration of the September 21 order of dismissal. The trial court denied the motion, and this appeal followed.
In its entry of summary judgment on September 21, the court noted, inter alia, that the Pistoras had not responded to the motion. Failure to respond to a motion for summary judgment, in and of itself, cannot serve as the basis for entry of judgment. Seal v. Hart, 755 P.2d 462 (Colo.App.1988). Thus, the issue presented is whether the trial court abused its discretion in dismissing the suit with, rather than without, prejudice.
In arguing that the dismissal should be without prejudice, the Pistoras point out that medical treatment of the injuries sustained was of an ongoing nature and, thus, was likely to exceed the $2,500 threshold in the foreseeable future. We note that, had the Pistoras' motion for dismissal without prejudice for failure to reach the threshold been filed prior to that of the defendants, such motion might properly have been granted under C.R.C.P. 41(a)(1)(B).
A trial court's exercise of discretion is not without bounds. See Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112 (Colo.1986); Rudd v. Rogerson, 152 Colo. 370, 381 P.2d 995 (1963). In determining whether there has been an abuse of discretion, it should be borne in mind that courts exist primarily to afford a forum to settle disputes between parties on the merits. Mizar v. Jones, 157 Colo. 535, 403 P.2d 767 (1965).
In Nagy v. District Court, 762 P.2d 158 (Colo.1988), the supreme court held ...
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Dawes Agency, Inc. v. American Property Mortg., Inc., 88CA1493
...on attorney fees. Because courts exist primarily to afford a forum to settle disputes between parties on the merits, Pistora v. Rendon, 765 P.2d 1089 (Colo.App.1988), this court should apply a liberal approach in determining whether a litigant has met the requirements for filing an appeal. ......
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Jones v. Cox
...to run from the date that she knows of her physical injury and its cause, would be unjust. Therefore, we disapprove of Pistora v. Rendon, 765 P.2d 1089 (Colo.App.1988), in which the court of appeals held that an action which was filed before the threshold amount of section 10-4-714 was reac......
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Lopez v. Regional Transp. Dist.
...action against a public entity in violation of § 24-10-109(6). See Woodsmall v. Regional Transportation District, supra; Pistora v. Rendon, 765 P.2d 1089 (Colo.App.1988). Here, because unresolved factual issues remain with respect to whether plaintiff's negligence claim was prematurely file......
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Benson v. Colorado Compensation Ins. Authority, 93CA0070
...Failure to respond to a motion for summary judgment, in and of itself, cannot serve as the basis for entry of judgment. Pistora v. Rendon, 765 P.2d 1089 (Colo.App.1988). By the same reasoning, the trial court may consider oral argument on the motion even if no written response has been file......