Valenzuela v. Mercy Hospital, Denver, Colo., 73--162
| Decision Date | 16 April 1974 |
| Docket Number | No. 73--162,73--162 |
| Citation | 521 P.2d 1287,34 Colo.App. 5 |
| Parties | Christine VALENZUELA and Manuel A. Valenzuela, Plaintiffs-Appellants, v. MERCY HOSPITAL, DENVER, COLORADO, a Colorado corporation, et al., Defendants-Appellees. . II |
| Court | Colorado Court of Appeals |
Page 1287
v.
MERCY HOSPITAL, DENVER, COLORADO, a Colorado corporation, et
al., Defendants-Appellees.
[34 Colo.App. 7]
Page 1288
W. Robert Awenius, Lakewood, for plaintiffs-appellants.Wagner, Wyers & Vanatta, P.C., Dean R. Vanatta, Denver, for defendants-appellees.
PIERCE, Judge.
Plaintiffs appeal from a summary judgment dismissing their complaint. Plaintiffs' complaint alleged that plaintiff, Christine Valenzuela, sustained serious bodily injury while a patient at the defendant hospital after being struck on the head by a full intravenous bottle which became dislodged from its standard. The complaint further alleged that the injuries were a result of the negligent acts of unknown employees of the hospital, on or about October 24, 1969. Following pretrial discovery, the parties agreed that the negligent acts, if any, occurred on November 25, 1969. The complaint was filed on March 16, 1972.
Defendants filed a motion for summary judgment alleging that the plaintiffs' action was barred by the two-year statute of limitations found in 1967 Perm.Supp., C.R.S.1963, 87--1--6. Plaintiffs were granted ten days in which to file a brief in opposition to defendants' motion, but failed to do so and the motion was granted on October 17, 1972. Plaintiffs' counsel then filed a motion designated 'Motion under Rule 60 to Vacate Summary Judgment' alleging, in effect, excusable neglect in his failure to file a brief in opposition to the summary judgment motion. Following the hearing, the trial court entered an order granting plaintiffs leave to file the brief in reply to defendants' motion for summary judgment, and further ordered that the motion to vacate under C.R.C.P. 60 be construed to be a motion to amend the judgment under C.R.C.P. 59(e). That motion was denied on January 17, 1973, and plaintiffs filed notice of appeal on January 30, 1973.
[34 Colo.App. 8] I
Defendants have asked dismissal of plaintiffs' appeal on the ground that it was untimely filed.
Defendants argue that the trial court abused its discretion by construing plaintiffs' 'Motion under Rule 60 to Vacate Summary Judgment' to be a motion to amend the judgment under Rule 59(e). If defendants are correct in that contention,
Page 1289
then, by C.A.R. 4, the time for filing a notice of appeal was not extended by plaintiffs' motion, and...To continue reading
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...63. Forsberg, supra, note 28 (C.R.C.P. 60(b) motion); Buck, supra, note 34 (C.R.C.P. 60(a) motion). But see Valenzuela v. Mercy Hosp., 521 P.2d 1287 (Colo.App. 1974) (trial court not abuse discretion in construing plaintiff's C.R.C.P. 60 motion as C.R.C.P. 59(e) motion and holding that fili......