Przekurat v. Torres

COLORADO COURT OF APPEALS 2016COA177
Court of Appeals No. 15CA1327
Boulder County District Court No. 12CV540
Honorable Judith L. LaBuda, Judge
Honorable Bruce Langer, Judge
Jared J. Przekurat, by and through his parent, co-guardian, co-conservator
and next friend, Jerome Przekurat,
Plaintiff-Appellant,
v.
Christopher Torres, Samuel S. Stimson, Peter Stimson, and Mitchell Davis,
Defendants-Appellees.
JUDGMENT AFFIRMED
Division VII
Opinion by JUDGE BERGER
Terry and Booras, JJ., concur
Announced December 1, 2016
Ciccarelli & Associates, P.C., A. Troy Ciccarelli, Littleton, Colorado; The Fowler
Law Firm, LLC, Timms R. Fowler, Fort Collins, Colorado, for Plaintiff-Appellant
Hall & Evans, L.L.C., Alan Epstein, Denver, Colorado; Ray Lego & Associates,
Thomas E. Hames, Greenwood Village, Colorado, for Defendant-Appellee
Christopher Torres
Prendergast & Associates, P.C., Paul A. Prendergast, Littleton, Colorado, for
Defendants-Appellees Samuel S. Stimson and Peter Stimson
Campbell, Latiolais & Averbach, LLC, Colin C. Campbell, Kirsten M. Dvorchak,
Denver, Colorado, for Defendant-Appellee Mitchell Davis
¶1 In 2005, the General Assembly amended the Colorado Dram
Shop Act, section 12-47-801, C.R.S. 2016, to impose civil liability
not only when a social host knowingly served alcoholic beverages to
a person under the age of twenty-one, but also when the social host
“knowingly provided the person under the age of twenty-one a place
to consume an alcoholic beverage.” § 12-47-801(4)(a)(I); see Ch.
282, sec. 6, § 12-47-801, 2005 Colo. Sess. Laws 1244-45. No
Colorado appellate court has addressed the meaning of the 2005
amendments; this case requires us to do so.
¶2 Plaintiff, Jared J. Przekurat, was severely injured after Hank
Sieck drove Przekurat’s car home from a party and was involved in
a catastrophic single-car accident. Sieck was highly intoxicated at
the time of the accident and was under the age of twenty-one.
¶3 Przekurat claimed that the four hosts of the party, defendants
Christopher Torres, Samuel S. Stimson, Peter Stimson, and Mitchell
Davis (the hosts), were liable for his damages under the 2005
amendments to the Dram Shop Act because the hosts “knowingly
provided [Sieck] a place to consume an alcoholic beverage.” In
granting the hosts’ summary judgment motion, the district court
rejected Przekurat’s expansive interpretation of the 2005
1
amendments and determined that Przekurat failed to establish that
there were disputed issues of material fact on whether any of the
hosts knew that Sieck was under the age of twenty-one or that he
was drinking alcohol at the party.
¶4 We conclude that the trial court correctly construed the 2005
amendments and also correctly determined that Przekurat failed to
demonstrate a disputed issue of material fact regarding the hosts’
knowledge that Sieck was underage and was drinking at the party.
Accordingly, we affirm the summary judgment in favor of the hosts.
¶5 While we agree with Przekurat that the district court erred in
denying on jurisdictional grounds his motion for reconsideration of
summary judgment, that error does not require reversal or a
remand.
I. Relevant Facts and Procedural History
¶6 The hosts shared a house in Boulder. To celebrate Davis’
twenty-fourth birthday and Torres’ graduation from college, they
planned a party at the house. The hosts invited numerous people
to the party, hired a disc jockey, and provided two kegs of beer.
Although the witnesses’ testimony varied regarding the number of
2
attendees at the party, it appears that at various times, between
twenty to more than one hundred people attended.
¶7 Among the attendees were Przekurat, who was twenty-one
years old at the time, and Sieck, who was twenty years old. Sieck
did not know any of the hosts, but was invited to the party by his
friend, Victor Mejia, who in turn had been invited not by one of the
hosts, but by another person who was also involved in planning the
party. The only indication that Sieck interacted with any of the
hosts that night came from Mejia’s deposition testimony, where he
stated that he, Sieck, and some others encountered Torres in the
kitchen of the house where the party was taking place. According
to Mejia, Torres said to Mejia something like “I don’t really know
these other people, but I know you.” There was no evidence in the
record that Sieck (or anyone else) ever told the hosts that Sieck was
under the age of twenty-one.1
¶8 Sieck apparently drank substantial amounts of alcohol at the
party.2 At approximately two o’clock in the morning, Sieck,
1 There also was no evidence that Sieck, then twenty years old,
obviously looked younger than twenty-one years old.
2 While there was little evidence regarding the amount of alcohol
that Sieck consumed at the party, forensic testing of his blood after
3
Przekurat, and Mejia left the party in Przekurat’s car, which Sieck
drove. Sieck drove at speeds in excess of one hundred miles per
hour before losing control of the car, driving off of the road, and
colliding with an embankment. The car rolled several times,
ejecting Przekurat. All three occupants of the car survived the
crash, but Przekurat sustained catastrophic injuries, including
brain damage, which rendered him incompetent and he now
requires around-the-clock care for the rest of his life.
¶9 Przekurat’s father sued the hosts on Przekurat’s behalf,
alleging, as pertinent to this appeal, liability under section 12-47-
801(4)(a)(I) of the Dram Shop Act.
¶ 10 After his pre-discovery summary judgment motion was denied,
Torres renewed his motion for summary judgment following the
completion of discovery. He asserted that no evidence showed that
he knew Sieck was drinking in his home or that Sieck was
the accident showed that his blood alcohol content ranged between
0.090 and 0.129 grams of alcohol per 100 milliliters of blood,
readings that exceed the legal limits for driving. § 42-1-102(27.5),
C.R.S. 2016. It is also not clear from the record whether the alcohol
Sieck drank at the party was supplied by the hosts or by another
party guest. In view of our disposition, we need not address this
question.
4
underage. The other three hosts moved for summary judgment on
similar grounds.
¶ 11 Przekurat opposed the summary judgment motions, asserting
that the hosts freely provided alcohol at the party, guests were
invited without restriction, the hosts knew it was likely that people
under the age of twenty-one would drink alcohol at the party, and
many underage people drank alcohol at the party.
¶ 12 The district court granted summary judgment in favor of all
the hosts, finding that there was no evidence “that Defendants had
actual knowledge that Sieck was under the age of 21 and was either
knowingly supplied alcohol by Defendants or knowingly allowed to
consume alcohol on Defendants’ property.”
¶ 13 The court (with a different judge presiding) later denied
Przekurat’s motion to reconsider summary judgment not on the
merits, but because it had been filed beyond the fourteen-day
period prescribed by C.R.C.P. 59, thus supposedly depriving the
court of jurisdiction.
5
II. Interpretation of the “Social Host” Provision of the
Colorado Dram Shop Act
¶ 14 Przekurat first argues that the district court erred when it held
that section 12-47-801(4)(a)(I) of the Dram Shop Act requires actual
knowledge of two separate elements: (1) that the defendant provided
a place for the consumption of alcohol by a person under the age of
twenty-one and (2) that the defendant knew that the person who
consumed alcohol at that place was under the age of twenty-one.
We hold that the district court correctly construed and applied the
statute.
¶ 15 Statutory interpretation presents a question of law that we
review de novo. Build It & They Will Drink, Inc. v. Strauch, 253 P.3d
302, 304 (Colo. 2011). “When interpreting a statute, we must
ascertain and effectuate the intent of the General Assembly.”
Vanderborgh v. Krauth, 2016 COA 27, ¶ 8. To do so, we look first to
the statutory language, giving words and phrases their plain and
ordinary meanings according to the rules of grammar and common
usage. § 2-4-101, C.R.S. 2016; Krol v. CF & I Steel, 2013 COA 32,
¶ 15.
6
¶ 16 “We read the language in the dual contexts of the statute as a
whole and the comprehensive statutory scheme, giving consistent,
harmonious, and sensible effect to all of the statute’s language.”
Krol, ¶ 15. After doing this, if we determine that the statute is not
ambiguous, we enforce it as written and do not resort to other rules
of statutory construction. Id.¶ 17 In enacting the Dram Shop Act, section 12-47-801, the
General Assembly codified the common law rule that, except under
limited circumstances, the consumption of alcohol is the proximate
cause of injuries inflicted by an intoxicated person, not the
provision of alcohol to that person. § 12-47-801(1); Build It, 253
P.3d at 307. Section 12-47-801 also codifies the limited exceptions
to the general rule and thus provides the exclusive remedy for a
plaintiff injured by an intoxicated person against a provider of
alcoholic beverages. Build It, 253 P.3d at 305. As relevant here,
section 12-47-801(4)(a)(I) provides:
No social host who furnishes any alcohol
beverage is civilly liable to any injured
individual . . . because of the intoxication of
any person due to the consumption of such
alcohol beverages, except when . . . [i]t is
proven that the social host knowingly served
any alcohol beverage to such person who was
7
under the age of twenty-one years or
knowingly provided the person under the age
of twenty-one a place to consume an alcoholic
beverage[.]
¶ 18 To decide this case, we must determine whether the word
“knowingly,” which is not defined in the Dram Shop Act, applies to
both the act of providing a place for a person to consume an
alcoholic beverage and the age of the drinker, or, rather, as
Przekurat contends, liability is established by proof only that the
social host provided a “place to consume an alcoholic beverage”
without regard to the social host’s knowledge of the age of the
drinker.
¶ 19 To decide this question, we look to the plain language of the
2005 amendments as well as to this court’s decision in Dickman v.
Jackalope, Inc., 870 P.2d 1261 (Colo. App. 1994). While Dickman
addressed the statutory phrase “willfully and knowingly” in the
context of the liability of liquor licensees for injuries to a person
who was served alcohol by the licensees, it is nevertheless
instructive. The statute addressed in Dickman provides:
No licensee is civilly liable to any injured
individual or his or her estate for any injury to
such individual or damage to any property
suffered because of the intoxication of any
8
person due to the sale or service of any alcohol
beverage to such person, except when . . . [i]t
is proven that the licensee willfully and
knowingly sold or served any alcohol beverage
to such person who was under the age of
twenty-one years or who was visibly
intoxicated[.]
§ 12-47-801(3) (emphasis added).3
¶ 20 In Dickman, the plaintiff sued a bar for serving alcohol to a
woman who was underage and who later injured him when she lost
control of her car. 870 P.2d at 1262. The evidence demonstrated
that even though the bar employees did not ask for the woman’s
identification, they believed that the woman was over twenty-one
years old. Id. The trial court determined that the plaintiff had not
presented any evidence that the bar had “knowingly and willfully”
served alcohol to the woman, and therefore granted summary
judgment in favor of the bar. Id.¶ 21 The issue in Dickman was whether the mental state of
“willfully and knowingly” applied to the person’s age as well as the
3 The liquor licensee liability provision in effect at the time that
Dickman v. Jackalope, Inc., 870 P.2d 1261 (Colo. App. 1994), was
decided is substantively identical to the current liquor licensee
provision. See § 12-47-128.5(3), C.R.S. 1991 (repl. vol. 5B)
(repealed 1997). The language relevant to this case, “willfully and
knowingly,” did not change.
9
provision of alcohol, or whether the plaintiff was only required to
prove that the licensee “knowingly and willfully” served alcohol to
an underage person, regardless of whether the licensee knew that
that person was underage. Id. To resolve the question, the court
applied the rule that when a criminal statute prescribes a culpable
mental state, that mental state applies to every element of the
offense unless the statute provides otherwise. Id. (citing section 18-
1-503(4), C.R.S. 2016). The court affirmed the summary judgment,
holding that under the plain language of the statute, a liquor
licensee may be held liable for serving alcohol to someone under the
age of twenty-one only if “the licensee knows that he or she is
serving alcohol to a person under 21 years of age.” Id.
¶ 22 Przekurat argues that we should not rely on Dickman because
it preceded the 2005 amendments and, in any event, is inapposite
because it interpreted the phrase “willfully and knowingly” and not
“knowingly” alone. For three reasons, we reject these arguments.
¶ 23 First, when the General Assembly amends a statute, we
presume that it is aware of published judicial precedents construing
the prior version of the statute. Vaughan v. McMinn, 945 P.2d 404,
409 (Colo. 1997). Dickman was decided prior to the 2005
10
amendments, and thus the legislature is presumed to have known
of the construction of the statute in Dickman. Nothing in the
language of the 2005 amendments reflects a legislative intent to
overrule Dickman.
¶ 24 Second, Dickman compels the conclusion that the statutory
requirement of “knowingly” applies to all of the elements of liability
under the 2005 amendments. Huddleston v. Bd. of Equalization, 31
P.3d 155, 159 (Colo. 2001) (citing Colo. Common Cause v. Meyer,
758 P.2d 153, 162 (Colo. 1988)). We think that Dickman was
correctly decided, and we adopt its reasoning here.
¶ 25 Third, the fact that the General Assembly removed the word
“willfully” from subsection (4)(a)(I) when it enacted the 2005
amendments simply has no bearing on whether the word
“knowingly,” which remains in the statute, applies to all of the
elements of liability under the statute.4
4 The parties dispute the significance of the General Assembly’s
deletion of the word “willfully” from section 12-47-801(4)(a)(I),
C.R.S. 2016. Relying on the legislative history of the 2005
amendments, the hosts suggest that the term “willfully” was
removed for the sole purpose of preventing insurance companies
from avoiding coverage of Dram Shop Act claims on a homeowner’s
insurance policy. See Hearing on H.B. 1183 Before the H. Judiciary
Comm., 65th Gen. Assemb., 1st Reg. Sess. (Feb. 17, 2005)
11
¶ 26 We thus conclude that, just as the “knowingly” mental state
applies to knowledge of the age of the person in section 12-47-
801(3)(a)(I), it also applies to knowledge of the age of the person in
section 12-47-801(4)(a)(I). Therefore, to satisfy his summary
judgment burden, Przekurat was required to present evidence that
the hosts had actual knowledge that Sieck was underage and was
drinking at the party. But he failed to do so.
¶ 27 Instead, Przekurat relies on legislative history and an affidavit
from the House Bill 05-1183 sponsor to argue that the 2005
amendments were intended to impose liability on social hosts who
throw an “uncontrolled” party where it is likely that underage
people will drink, without regard to the defendant’s knowledge of
the age of the drinker. See Hearing on H.B. 1183 before the H.
Judiciary Comm., 65th Gen. Assemb., 1st Reg. Sess. (Feb. 17, 2005)
(statement of Rep. Angie Paccione). But we may not resort to
legislative history unless the statute is ambiguous. Smith v. Exec.
Custom Homes, Inc., 230 P.3d 1186, 1189 (Colo. 2010).
(statement of Rep. Angie Paccione). In view of our conclusion that
the language of the 2005 amendments is clear and unambiguous,
we do not address the legislative purpose for removal of the word
“willfully” from the Dram Shop Act.
12
¶ 28 Here, as we have concluded above, the language of the statute
is clear and unambiguous. While we agree that the 2005
amendments expanded social host liability, the plain language of
the statute requires that a social host must knowingly provide the
person under the age of twenty-one a place to consume alcohol.
§ 12-47-801(4)(a)(I). Furthermore, affidavits of former legislators
regarding their personal views of what a particular piece of
legislation meant or what the legislature intended it to mean are not
competent evidence to determine legislative intent, even when
legislative intent is properly considered. Bread Political Action
Comm. v. Fed. Election Comm’n, 455 U.S. 577, 582 n.3 (1982).
¶ 29 For these reasons, we conclude that the district court correctly
applied the 2005 amendments. To the extent that Przekurat argues
that the Dram Shop Act should impose liability on a social host who
provides a venue but does not have knowledge that specific
underage persons are drinking at the venue, that is a matter of
policy that must be addressed to the General Assembly, not the
courts. Loar v. State Farm Mut. Auto. Ins. Co., 143 P.3d 1083, 1087
(Colo. App. 2006).
13
III. Summary Judgment
¶ 30 Przekurat next argues that the district court’s summary
judgment must be reversed because he offered “abundant” evidence
that the hosts knew that they were hosting an “open” party and
providing a venue to underage guests, including Sieck, to drink
indiscriminately. Because the summary judgment record does not
support Przekurat’s contention, we reject it.
¶ 31 We review summary judgments de novo. Brodeur v. Am. Home
Assurance Co., 169 P.3d 139, 146 (Colo. 2007). Summary
judgment is a drastic remedy appropriate only when the pleadings
and supporting documents show that no genuine issue of material
fact exists and the moving party is entitled to judgment as a matter
of law. Id. The moving party has the burden of establishing the
lack of a triable factual issue, and all doubts as to the existence of
such an issue must be resolved in favor of the nonmoving party.
Churchey v. Adolph Coors Co., 759 P.2d 1336, 1340 (Colo. 1988).
Once the moving party has met this burden, the burden shifts to
the nonmoving party to establish a triable issue of fact. Cont’l Air
Lines, Inc. v. Keenan, 731 P.2d 708, 712-13 (Colo. 1987).
14
¶ 32 As we held in Part II of this opinion, to impose liability under
section 12-47-801(4)(a)(I) of the Dram Shop Act, a social host must
have actual knowledge both that he has provided a place to
consume an alcoholic beverage and that the person consuming the
beverage at that place is under the age of twenty-one.
¶ 33 In their motions for summary judgment, the hosts presented
legally admissible evidence to prove that none of them knew Sieck,
knew that he was drinking at the party, or knew that he was
underage. The supporting evidence consisted of the following:
 Sieck testified in his deposition that he did not know and
had never met any of the hosts; he was not invited to the
party by any of the hosts; he had never been to the hosts’
home prior to the night of the party; and he did not tell
anyone at the party that he was underage.
 Torres testified in his deposition that he did not ask any
of the party attendees their age, and he swore in an
affidavit that he did not know Sieck or know that Sieck
had attended the party.
 Peter Stimson testified in his deposition that he did not
know Sieck.
15
 Davis testified in his deposition that he did not know
Sieck.
 Samuel Stimson swore in an affidavit that he did not
know Sieck, had not invited Sieck to the party, and did
not come into contact with Sieck at the party.
¶ 34 In response to this showing, Przekurat presented the following
evidence:
 The hosts threw a party with between 30 and 120
attendees.
 Alcohol was freely available at this party.
 Access to the party was unrestricted.
 When Sieck entered the kitchen with a group of friends,
including Mejia, Torres told Mejia, “I don’t really know
these other people, but I know you.”
 The hosts knew that Samuel Stimson was underage and
had planned to attend the party.
 The hosts did not ask party attendees their age or take
any other steps to ensure that underage drinking would
not take place at the party.
16
 Sieck, who was twenty years old at the time, drank
alcohol at the party.
¶ 35 Przekurat argues here, as he did in the district court, that
circumstantial evidence raised a genuine issue of material fact that
“[the hosts] clearly had knowledge of the fact that there were
underage people consuming alcohol that they served at their home.”
He also argues that the hosts had “constructive knowledge” that
Sieck was underage and that they had provided a place for him to
drink alcohol, and that constructive knowledge is sufficient to
establish the statutory requirement of “knowingly.”
¶ 36 For two reasons, we agree with the district court that this
evidence was insufficient to meet Przekurat’s summary judgment
burden.
¶ 37 First, while we agree with Przekurat that circumstantial
evidence is admissible to prove knowledge under the statute,
Christoph v. Colo. Commc’ns Corp., 946 P.2d 519, 523 (Colo. App.
1997), Przekurat did not offer any evidence, circumstantial or
direct, that would permit a reasonable inference that any of the
17
hosts knew Sieck, much less that they knew his age.5 And
Przekurat did not present any evidence that the twenty-year-old
Sieck appeared to be obviously underage. Without knowledge,
established either by direct or circumstantial evidence, of Sieck’s
age, the hosts could not have knowingly provided Sieck, a person
under the age of twenty-one, with a place to consume alcohol.
¶ 38 Second, constructive knowledge, or evidence that a person
“should have known” of a condition or circumstance, Full Moon
Saloon, Inc. v. City of Loveland ex rel. Local Liquor Licensing Auth.,
111 P.3d 568, 570 (Colo. App. 2005), does not satisfy the mental
state requirement of “knowingly” in section 12-47-801(4)(a)(I).
¶ 39 The supreme court’s decision in Build It & They Will Drink
compels this conclusion even though the court was addressing
licensee liability under the Dram Shop Act rather than social host
liability. There, the supreme court squarely held that section
5 The district court’s order did not prohibit the use of circumstantial
evidence to establish whether the hosts had actual knowledge of the
required circumstances under the 2005 amendments. Przekurat
appears to conflate circumstantial evidence with constructive
knowledge. They are not the same thing. See People v. Parga, 964
P.2d 571, 573 (Colo. App. 1998) (holding that jury instructions were
defective because they allowed the jury to convict the defendant
based on his constructive knowledge when the statute required
actual knowledge, established by direct or circumstantial evidence).
18
12-47-801(3), which provides that a liquor licensee must “willfully
and knowingly” serve an underage or intoxicated person to be
liable, requires proof that the licensee had “actual knowledge” of a
person’s age or intoxicated state. 253 P.3d at 308. According to
the court, “[i]t would not be enough that the licensee ‘should have
known’ that the person was visibly intoxicated [or underage].” Id.
¶ 40 Because “the meaning attributed to words or phrases found in
one part of a statute should be ascribed consistently to the same
words or phrases throughout the statute,” we must apply the same
meaning of the word “knowingly” here. Huddleston, 31 P.3d at 159
(citing Colo. Common Cause, 758 P.2d at 162).
¶ 41 We also reject Przekurat’s assertion that Full Moon Saloon is
dispositive of whether constructive knowledge satisfies the requisite
mental state of section 12-47-801(4)(a)(I). Even if a Colorado Court
of Appeals decision could overcome the holding of a Colorado
Supreme Court case, which it obviously cannot, that case involved
an entirely different statute, section 12-47-901, C.R.S. 2016, which
makes it unlawful for any person to “permit” the sale or service of
alcohol to a person under the age of twenty-one. This court held
that a liquor licensee “permit[s]” that prohibited conduct if he or she
19
has actual knowledge or constructive knowledge that it is occurring.
Full Moon Saloon, 111 P.3d at 570. One of the reasons that the
court concluded that constructive knowledge is sufficient was
because “[t]he holder of a liquor license has an ‘affirmative
responsibility’ to conduct the business, and see that his or her
employees conduct the business, in compliance with the law.” Id.¶ 42 But, unlike section 12-47-901, the social host provision of the
Colorado Dram Shop Act does not impose any comparable
“affirmative responsibility,” and it does not impose liability for
“permitting” an underage person to consume alcohol.
¶ 43 For these reasons, we conclude that while the hosts met their
summary judgment burdens, Przekurat did not meet his, and the
district court correctly granted summary judgment in favor of the
hosts on Przekurat’s social host liability claim.
IV. Przekurat’s Motion for Reconsideration of Summary Judgment
¶ 44 Przekurat next argues that the district court erred in
concluding that it did not have jurisdiction to rule on his motion for
reconsideration of summary judgment in favor of the hosts. We
agree that the district court erroneously denied the C.R.C.P. 59
20
motion for lack of jurisdiction, but we nevertheless conclude that
the error does not require either reversal or a remand.
A. Additional Procedural History
¶ 45 In his amended complaint, Przekurat asserted claims against
an additional defendant, Robert Fix, who is not a party to this
appeal. At the time that the district court granted summary
judgment in favor of the hosts, Przekurat’s claims against Fix had
not yet been resolved. No C.R.C.P. 54(b) order was ever entered
with respect to the summary judgment in favor of the hosts.
¶ 46 The district court later granted summary judgment in favor of
Fix. Przekurat moved for reconsideration of that order, and the
district court (with a different judge presiding) reversed its earlier
ruling as to Fix.
¶ 47 Przekurat then settled his claims against Fix, and the district
court dismissed those claims. That same day, which was more
than one year after the court granted summary judgment in favor of
the hosts, Przekurat moved for reconsideration of the summary
judgment in favor of the hosts. The district court denied the
motion, concluding that it had not been filed within the fourteen
21
days prescribed by C.R.C.P. 59 and that therefore, the court did not
have jurisdiction to consider the motion.
B. Analysis
¶ 48 “Within 14 days of entry of judgment as provided in C.R.C.P.
58,” a party may move to amend the judgment under C.R.C.P.
59(a)(4). Failure to file the motion within the time allowed by
C.R.C.P. 59(a) deprives the court of jurisdiction to act under that
rule. In re Marriage of McSoud, 131 P.3d 1208, 1212 (Colo. App.
2006).
¶ 49 Przekurat argues that, contrary to the district court’s
conclusion, the time for him to file a motion for reconsideration
under C.R.C.P. 59 began to run when there was a final judgment,
which resulted only when the district court dismissed the claims
against Fix.
¶ 50 There are two types of motions for reconsideration. The first is
a motion for reconsideration of an interlocutory order under
C.R.C.P. 121, section 1-15(11), which provides, in relevant part:
“Motions to reconsider interlocutory orders of the court, meaning
motions to reconsider other than those governed by C.R.C.P. 59 or 60,
are disfavored.” (Emphasis added.) Thus, that rule authorizes the
22
filing of a motion to reconsider a non-final order or judgment. Until
the entry of final judgment, any order or judgment entered by the
court is “subject to revision at any time before the entry of judgment
adjudicating all the claims and the rights and liabilities of all the
parties.” C.R.C.P. 54(b).
¶ 51 The second type is a motion for reconsideration of a final order
or judgment under C.R.C.P. 59. In re Marriage of Warner, 719 P.2d
363, 364-65 (Colo. App. 1986).
¶ 52 As noted, Rule 59(a) provides that “[w]ithin 14 days of entry of
judgment as provided in C.R.C.P. 58 . . . a party may move for post-
trial relief[.]” (Emphasis added.) C.R.C.P. 58 states that “[t]he term
‘judgment’ includes an appealable decree or order as set forth in
C.R.C.P. 54(a).” C.R.C.P. 54(a) provides that “‘[j]udgment’ as used
in these rules includes a decree and order to or from which an
appeal lies.”
¶ 53 Reading these provisions together, a C.R.C.P. 59 motion may
only be filed to challenge a final order or judgment, not a non-final
or interlocutory order or judgment.
¶ 54 Our reading of C.R.C.P. 59(a) is supported by the Tenth
Circuit’s construction of the similar provision of Fed. R. Civ. P.
23
59(e). Garcia v. Schneider Energy Servs., Inc., 2012 CO 62, ¶ 7
(stating that an appellate court may rely on federal precedents
interpreting similar federal rules in interpreting the Colorado Rules
of Civil Procedure).
¶ 55 The timing provision of Fed. R. Civ. P. 59(e), which states that
“[a] motion to alter or amend a judgment must be filed no later than
28 days after the entry of the judgment,” is, for relevant purposes,
substantively similar to C.R.C.P. 59(a). The Tenth Circuit held that
the time for filing a motion under Fed. R. Civ. P. 59 begins to run
only upon entry of a final judgment, not an interlocutory order.
Anderson v. Deere & Co., 852 F.2d 1244, 1246 (10th Cir. 1988).
¶ 56 Until the claims against Fix were dismissed, the summary
judgment entered in favor of the hosts was not a final order or
judgment and thus was not subject to challenge by a motion under
C.R.C.P. 59. Instead, it was subject to modification by the court at
any time, either on motion of the parties or on the court’s own
motion. C.R.C.P. 54(b); Harding Glass Co. v. Jones, 640 P.2d 1123,
1125 n.2 (Colo. 1982).
¶ 57 Once the summary judgment in favor of the hosts became
final, which it did upon the dismissal of the claims against Fix,
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Przekurat had fourteen days to file a C.R.C.P. 59 motion directed to
that judgment. Przekurat timely filed his C.R.C.P. 59 motion, and
thus the district court erred when it denied the motion based upon
lack of jurisdiction.
¶ 58 But this error does not require either reversal or a remand for
consideration of the motion for reconsideration. Except for
testimony that at one point there may have been as few as twenty
people at the party, Przekurat’s motion for reconsideration did not
advance any factual or legal argument beyond what he had
presented in his original response to the hosts’ motions for
summary judgment. To the extent that Przekurat’s motion for
reconsideration presented additional evidence regarding the size of
the party, that evidence, by itself, does not change the summary
judgment calculus. Without direct or circumstantial evidence that
the hosts knew that Sieck was drinking at the party and was under
the age of twenty-one, Przekurat could not meet his summary
judgment burden.
¶ 59 Moreover, in the absence of a claim of newly discovered
evidence, which was not asserted here, evidence submitted after the
grant of summary judgment cannot properly be considered by the
25
district court. Schmidt v. Frankewich, 819 P.2d 1074, 1078 (Colo.
App. 1991) (citing Conrad v. Imatani, 724 P.2d 89, 94 (Colo. App.
1986)).
¶ 60 Nor does the district court’s reversal of its initial grant of
summary judgment in favor of Fix affect our analysis. That order
reversing the prior grant of summary judgment was based on
evidence specific to Fix: Fix knew Sieck prior to the party and talked
with Sieck at the party; Fix invited Mejia to the party, and Mejia
invited Sieck; Fix knew that Mejia was underage and was a friend of
others who were underage; and there may have been as few as
twenty party attendees, increasing the likelihood that Fix was aware
that Sieck — a person he had met before — was at the party. Other
than raising an issue about the size of the party, which we
addressed above, none of this evidence established a disputed issue
of material fact as to the hosts.6
V. Cost Awards
¶ 61 Because we affirm the summary judgment, we also affirm the
cost awards to Peter Stimson, Samuel Stimson, and Torres. Rocky
6Given our resolution of this issue, we necessarily reject the hosts’
contention that Przekurat engaged in improper judge shopping
when he filed his C.R.C.P. 59 motion.
26
Mountain Expl., Inc. v. Davis Graham & Stubbs LLP, 2016 COA 33,
¶ 67.
VI. Appellate Attorney Fees
¶ 62 Peter Stimson and Samuel Stimson request appellate attorney
fees and single or double costs pursuant to C.A.R. 38(b) and section
13-17-103, C.R.S. 2016, both of which grant an appellate court
discretion to impose attorney fees against a party who has brought
or defended a frivolous action. Mission Denver Co. v. Pierson, 674
P.2d 363, 366 (Colo. 1984). Przekurat made “coherent assertion[s]
of error” and supported his arguments with legal authority. Castillo
v. Koppes-Conway, 148 P.3d 289, 292 (Colo. App. 2006). Therefore,
his appeal was not frivolous and we deny Peter Stimson’s and
Samuel Stimson’s requests for appellate attorney fees and double
costs. They are entitled to costs as the prevailing party on appeal
pursuant to C.A.R. 39.
VII. Conclusion
¶ 63 The summary judgment in favor of the hosts and the award of
costs are affirmed.
JUDGE TERRY and JUDGE BOORAS concur.
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