Beard v. Parry

23CA1427 Beard v Parry 09-19-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1427
Jefferson County District Court No. 21CV30882
Honorable Jeffrey R. Pilkington, Judge

Mark Beard,

Plaintiff-Appellant,

v.

Max Parry,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division III
Opinion by JUDGE GOMEZ
Dunn and Navarro, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 19, 2024

Falgien Warr & Iyer, P.C., Brianne Falgien, Vinod K. Iyer, Nicholas D. Stofa,
Wheat Ridge, Colorado, for Plaintiff-Appellant

Ross-Shannon & Proctor, P.C., Bradley Ross-Shannon, Lakewood, Colorado,
for Defendant-Appellee
¶1 Plaintiff, Mark Beard, appeals the judgment entered on a jury

verdict in favor of defendant, Max Parry, on negligence and

negligence per se claims arising out of a traffic accident. Beard

challenges the trial court’s denial of his motion for partial summary

judgment; denial of his post-trial motion for judgment

notwithstanding the verdict or, alternatively, for a new trial;

instruction to the jury regarding the presumption of negligence; and

exclusion of testimony related to the negligence per se claim.

We reject those challenges and affirm the judgment.

I. Background

¶2 This lawsuit arises from a traffic accident on Interstate 70

near Evergreen. Both parties were traveling westbound on the

interstate, Beard in the center lane and Parry in the far-right lane.

Parry decided to merge into the center lane to pass some slow-

moving semitrucks in front of him. According to Parry, just as he

was doing so, traffic in the middle lane abruptly stopped, and he

slammed on his brakes but couldn’t avoid striking the rear of

Beard’s car. But according to Beard, traffic in the middle lane only

gradually slowed and then he was suddenly struck by Parry’s car

from behind. Beard claimed to have sustained injuries in the

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accident. A state trooper responded to the scene and took the

parties’ statements.

¶3 Beard brought this lawsuit, asserting claims for negligence

and negligence per se, along with other claims that he later

dismissed. Before trial, he filed a motion for partial summary

judgment, which the trial court denied.

¶4 The case proceeded to a five-day jury trial in January 2023.

The jury returned a verdict for Parry, finding that Beard had

sustained injuries, damages, or losses but that Parry was not

negligent and that any negligence of Parry’s hadn’t caused Beard’s

injuries, damages, or losses.

¶5 After obtaining extensions of time to file post-trial motions,

Beard filed a motion on March 24 for judgment notwithstanding the

verdict or, alternatively, for a new trial. On July 10, the trial court

entered an order denying the motion. Beard filed this appeal on

August 18.

II. Timeliness of the Appeal

¶6 We first address the timeliness of the notice of appeal, as we

must ensure that we have jurisdiction over the appeal. See Chavez

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v. Chavez, 2020 COA 70, ¶ 22 (“An appellate court must always be

satisfied that it has jurisdiction to hear an appeal.”).

¶7 Beard argues that the trial court’s order denying his post-trial

motion came too late, as it was entered after the sixty-three-day

deadline proscribed by C.R.C.P. 59(j), and that it is therefore void.

He is correct. By operation of Rule 59(j), the motion was deemed

denied after sixty-three days, so the later order purporting to rule

on the motion is void. See C.R.C.P. 59(j); Durdin v. Cheyenne

Mountain Bank, 98 P.3d 899, 902 (Colo. App. 2004).

¶8 But that begs the question whether Beard’s appeal was timely.

We conclude that it was. The deemed-denied date of any Rule 59

motions generally marks the start of the forty-nine-day period to file

a notice of appeal. See C.A.R. 4(a)(1), (3); C.R.C.P. 59(j); Baum v.

State Bd. for Cmty. Colls. & Occupational Educ., 715 P.2d 346, 347

(Colo. App. 1986). So when Beard’s Rule 59 motion was deemed

denied on May 26 (sixty-three days after the March 24 filing), that

would’ve started the forty-nine-day clock, and the notice of appeal

would’ve been due by July 14. But it wasn’t filed until August 18.

¶9 Nonetheless, because no judgment entered immediately after

the trial, the deadline to file an appeal didn’t start until later. A

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judgment doesn’t enter — and thus the appeal clock doesn’t start —

until a trial court prepares, dates, and signs a written judgment,

and the clerk enters it on the register of actions. See C.R.C.P. 58(a);

Furlong v. Gardner, 956 P.2d 545, 553 (Colo. 1998). Because the

trial court didn’t enter a signed order addressing the judgment until

its July 10 order on the post-trial motion, we treat that date as the

date of judgment (even if the order was void insofar as it purported

to rule on the post-trial motion). See In re Estate of Royal, 813 P.2d

790, 791 (Colo. App. 1991), aff’d on other grounds, 826 P.2d 1236

(Colo. 1992). And because Beard filed his appeal on August 18, less

than forty-nine days later, the appeal is timely. See C.A.R. 4(a)(1).

III. Summary Judgment Ruling

¶ 10 As his first contention, Beard challenges the trial court’s

ruling denying his motion for partial summary judgment on the

issue of Parry’s negligence. This contention is unreviewable.

¶ 11 A denial of summary judgment is not reviewable on appeal,

even after a trial on the merits. Feiger, Collison & Killmer v. Jones,

926 P.2d 1244, 1250 (Colo. 1996). Instead, a party may only raise

the issue presented at summary judgment through a motion filed at

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or after trial, such as Beard’s post-trial motion for judgment

notwithstanding the verdict. See Tisch v. Tisch, 2019 COA 41, ¶ 48.

¶ 12 Accordingly, we cannot review the trial court’s denial of the

partial summary judgment motion but can only review the court’s

ruling on the post-trial motion. We turn to that issue next.

IV. Post-Trial Ruling

¶ 13 Beard contends that the trial court should’ve granted his post-

trial motion for judgment notwithstanding the verdict or for a new

trial because there was insufficient evidence to support the jury’s

finding that Parry wasn’t negligent. We disagree.

¶ 14 We review an order resolving a motion for judgment

notwithstanding the verdict de novo. Parks v. Edward Dale Parrish

LLC, 2019 COA 19, ¶ 9. In doing so, we view the evidence, and all

inferences that may reasonably be drawn from it, in the light most

favorable to the nonmoving party. Id. at ¶ 10. A court should deny

the motion unless there is no evidence from the trial that could

support a verdict against the moving party. Id.

¶ 15 Ordinarily, we review an order resolving a motion for a new

trial for an abuse of discretion, such that we won’t reverse the order

unless it was manifestly arbitrary, unreasonable, or unfair or was

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based on a misapplication or misunderstanding of the law. Credit

Serv. Co. v. Skivington, 2020 COA 60M, ¶ 24. Here, however, the

motion was deemed denied under Rule 59(j), so the court’s later

order explaining its reasons for the denial is of no consequence.

Moreover, Beard seeks a new trial on the basis of an error in law

(essentially the same error he argues with respect to the motion for

judgment as a matter of law). See C.R.C.P. 59(d)(6). Indeed, Beard

doesn’t seek a retrial on the same issues, which is the relief

ordinarily afforded on a motion for a new trial, see Rains v. Barber,

2018 CO 61, ¶ 6; instead, he asserts that the issue of negligence

should be resolved as a matter of law, and he seeks a new trial

solely on the issues of causation and damages. Yet we generally

review questions of law de novo. See, e.g., In re Marriage of

Thorburn, 2022 COA 80, ¶ 26. Thus, de novo review is likely more

appropriate here.

¶ 16 But regardless of which review standard we apply, the

outcome is the same: the trial court didn’t err or abuse its

discretion by denying the motion for judgment as a matter of law or,

alternatively, for a new trial, as there is ample evidence to support

the jury’s verdict in Parry’s favor on the issue of negligence.

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¶ 17 In cases like this one involving a rear-end collision, the driver

of the car in the rear that collides with the car in front is generally

presumed negligent. See Huntoon v. TCI Cablevision of Colo., Inc.,

969 P.2d 681, 687 (Colo. 1998); Vititoe v. Rocky Mountain Pavement

Maint., Inc., 2015 COA 82, ¶ 84. But this presumption may be

rebutted where there is competent evidence indicating that the rear

driver wasn’t negligent. Bauer v. Dayton, 502 P.2d 972, 973 (Colo.

App. 1972); see also Denver Tramway Corp. v. Burke, 28 P.2d 253,

254 (Colo. 1933) (“Ordinarily a driver who collides with a car ahead

of him, going in the same direction, is negligent but not always so.

Surrounding facts and circumstances are always relevant and

material and may throw an entirely different light on the

question.”). In that event, the issue of negligence becomes a

question of fact for the fact finder to resolve. Bauer, 502 P.2d at

973; see also Bartlett v. Bryant, 442 P.2d 425, 426 (Colo. 1968);

Lesondak v. O’Hara, 483 P.2d 417, 418 (Colo. App. 1971).

¶ 18 We conclude that Parry presented competent evidence to rebut

the presumption of negligence and, therefore, the issue was

appropriately submitted to and resolved by the jury. This includes,

in particular, the following evidence:

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• Parry’s testimony that he was familiar with the route he

was driving, having taken it many times in the past.

• Parry’s testimony that at the time of the accident, he

didn’t have the radio on, wasn’t using his cell phone, and

wasn’t distracted by anything else.

• The trooper’s testimony, consistent with Parry’s, that

there was no indication Parry had been distracted in any

way, such as on a cell phone.

• Parry’s testimony about how the accident occurred. He

said that he was initially looking ahead of him and that

in preparation for merging into the center lane, he put on

his turn signal and checked his mirrors. He then turned

his head to check his blind spot as he started merging,

and in that split second, the traffic stopped. He did

everything he could to stop, but he couldn’t avoid

colliding into the back of Beard’s car.

• The trooper’s testimony that the speed limit in that area

is sixty-five miles per hour and that just after the

accident Parry reported that he’d been driving forty-five

miles per hour. (At trial, Parry couldn’t recall how fast he

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was going — only that he was going along with the flow of

the dense morning traffic.)

• The trooper’s testimony that both parties indicated at the

scene that the traffic had slowed suddenly, that Parry

had said the sudden slowdown was due to semitrucks

changing lanes ahead of them, and that Beard had said

the only reason Parry’s car struck his car was because of

the traffic slowing.

See Bauer, 502 P.2d at 973 (evidence that the rear driver in a rear-

end collision was “driving at a moderate speed,” was “looking

forward just prior to the accident,” and braked in an attempt to

prevent a collision helped to overcome the presumption and create a

factual question on the issue of negligence).

¶ 19 Beard cites evidence indicating that he wasn’t comparatively

negligent. He also notes that Parry didn’t present a comparative

negligence defense to the jury. But the issue isn’t one of Beard’s

comparative negligence; instead, it’s one of Parry’s negligence. And,

as we’ve stated, there was sufficient evidence for the jury to find

that Parry wasn’t negligent.

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¶ 20 Beard also cites other evidence that could’ve supported a

finding that Parry was negligent. But ultimately this was a question

for the jury — and because there is evidence supporting the jury’s

finding, we cannot disturb it. See Ajay Sports, Inc. v. Casazza,

1 P.3d 267, 274 (Colo. App. 2000).

V. Jury Instruction

¶ 21 Beard also contends that the trial court erroneously instructed

the jury on the presumption of negligence. Again, we disagree.1

¶ 22 We review de novo whether a particular jury instruction is a

correct statement of the law and whether the jury instructions as a

whole accurately set forth the governing law. Suydam v. LFI Fort

Pierce, Inc., 2020 COA 144M, ¶ 10. But because trial courts have

broad discretion to fashion the form and style of instructions, we

review for an abuse of discretion a trial court’s decision whether to

give a particular jury instruction. Id.

¶ 23 The challenged jury instruction reads as follows:

When a driver of a motor vehicle hits another
vehicle in the rear, the law presumes that the
driver was negligent.

1 Because we reject this contention on its merits, we don’t address

Parry’s argument that any error was invited.

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In this case, it is established that [Parry’s]
vehicle hit [Beard’s] vehicle in the rear. From
this fact, you may, but are not required to,
draw an inference that [Parry] was negligent.
If you draw this inference, you may consider it
along with all the other evidence in the case in
deciding whether or not [Parry] was negligent.

¶ 24 Beard argues that the trial court should’ve given only the first

part of this instruction — that when a driver of a motor vehicle hits

another vehicle in the rear, the law presumes the driver was

negligent — because there was insufficient evidence to rebut the

presumption. He also argues that the court should’ve given

additional optional language from the model instruction indicating

not only that the law presumes the driver was negligent but also

that the jury “must find” the driver was negligent. CJI-Civ. 11:12

(2024). In other words, he argues that, for the same reason the

evidence was supposedly insufficient to support the jury’s finding

that the presumption of negligence had been rebutted, the jury also

shouldn’t have been instructed that the presumption of negligence

may be rebutted.

¶ 25 We reject this argument for the same reason we reject Beard’s

argument concerning the sufficiency of the evidence to rebut the

presumption of negligence. Simply stated, sufficient evidence

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supported instructing the jury — and supported the jury’s

finding — regarding rebuttal of the presumption of negligence.

VI. Exclusion of Evidence

¶ 26 Finally, Beard contends that the trial court abused its

discretion by excluding evidence that would’ve supported his

negligence per se claim. We are not persuaded.

¶ 27 “A trial court has substantial discretion in deciding questions

concerning the admissibility of evidence and broad discretion to

determine the relevancy of evidence, its probative value and its

prejudicial impact.” E-470 Pub. Highway Auth. v. 455 Co., 3 P.3d

18, 23 (Colo. 2000). Accordingly, we review a trial court’s

evidentiary rulings for an abuse of discretion. Gebert v. Sears,

Roebuck & Co., 2023 COA 107, ¶ 29.

¶ 28 Beard’s challenge relates to the testimony of the state trooper

who reported to the scene of the accident. The trooper testified for

Beard as an expert in accident investigation, including causation

and fault. Beard’s counsel elicited the trooper’s opinion testimony

that Parry was at fault for the accident because he “follow[ed] too

closely to allow sufficient time to react to many traffic conditions.”

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¶ 29 Beard’s counsel then started to ask a follow-up question:

“[Y]ou mentioned following too closely. Is that . . . a traffic code —”

Parry’s counsel objected on the basis of relevance (CRE 401) and

prejudice, confusion, or waste of time (CRE 403). At a bench

conference, Beard’s counsel argued, “We have a right to get into

that on a per se. I’m not going to ask him about to [sic] ticket. But

I have a right to say, could it be considered careless driving, could it

be considered following too closely?” But the court disagreed,

explaining that “[t]hen the jury’s going to speculate as to whether or

not he cited [Parry]” and that it “will give . . . those instructions” on

the statutes underlying the negligence per se claim.

¶ 30 We conclude that this ruling was not an abuse of the trial

court’s discretion.

¶ 31 To be sure, the trooper’s testimony about the existence of a

traffic code provision against following too closely may have been

relevant to establish the standard of conduct to support Beard’s

negligence per se claim. See Lombard v. Colo. Outdoor Educ. Ctr.,

Inc., 187 P.3d 565, 573 (Colo. 2008) (“The underlying principle of

the common law doctrine of negligence per se is that legislative

enactments such as statutes and ordinances can prescribe the

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standard of conduct of a reasonable person such that a violation of

the legislative enactment constitutes negligence.”).

¶ 32 But the trial court was justifiably concerned that allowing the

trooper’s testimony about the traffic code provision could lead the

jury to speculate as to whether the trooper had cited Parry for

violating that provision. Yet, undisputedly, any evidence of a

citation would’ve been inappropriate. See § 42-4-1713, C.R.S. 2024

(With specific exceptions not applicable here, “no record of the

conviction of any person for any violation of this [traffic code] shall

be admissible as evidence in any court in any civil action.”); Wark v.

McClellan, 68 P.3d 574, 579 (Colo. App. 2003) (“This statutory

proscription extends to reference to the issuance of a ticket.”). And,

as the court pointed out, it planned to — and did — instruct the

jury on the relevant traffic code sections, including the section on

following too closely (section 42-4-1008, C.R.S. 2024).

¶ 33 Thus, given the trial court’s concerns and the fact that the

jury had already heard the trooper’s testimony opining that Parry

was following Beard too closely, it was within the court’s discretion

to conclude that any marginal relevance from the trooper’s

reference to section 42-4-1008 was substantially outweighed by

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dangers of unfair prejudice, confusion of the issues, or misleading

the jury. See CRE 403; E-470 Pub. Highway Auth., 3 P.3d at 23;

see also Danko v. Conyers, 2018 COA 14, ¶¶ 43-51 (trial court

acted within its discretion in excluding evidence based in part on

concerns about confusing the jury); Schultz v. Wells, 13 P.3d 846,

852 (Colo. App. 2000) (trial court acted within its discretion in

excluding evidence based on concerns about confusing the issues

and misleading the jury).

VII. Disposition

¶ 34 The judgment is affirmed.

JUDGE DUNN and JUDGE NAVARRO concur.

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