26 CO 50, 24SC747 J.B. v. MKBS, LLC.

OCR transcription for search; preserved printed pages are authoritative

The opinion summaries are not part of the Colorado Supreme
Court's opinion. They have been prepared solely for the reader's
convenience. As such, they may not be cited or relied upon. If
there is any discrepancy between the language in the summary
and the opinion, the language in the opinion controls.

ADVANCE SHEET HEADNOTE
June 23, 2026
AS MODIFIED August 3, 2026

# 2026 CO 50M

No. 24SC747, J.B. v. MKBS-Default Judgment-Setting Aside Default
Judgment - Inconsistent Judgments.

In this case, involving two defendants, one who defaulted and one who
didn't, the supreme court holds that the district court didn't abuse its discretion
by allowing the defaulting defendant to testify at the non-defaulting defendant's
trial even though his testimony contradicted the facts admitted by his default. The
supreme court also concludes that the district court reasonably applied the three-
factor test from Goodman Assocs., LLC v. WP Mountain Props., LLC, 222 P.3d 310,
319 (Colo. 2010), in determining whether to set aside the default judgment and that
the defaulting defendant had established excusable neglect.

Finally, the supreme court concludes that the district court didn't abuse its
discretion by entering judgment in favor of the defendant whose default judgment
had been set aside because doing so avoided the entry of inconsistent judgments.

The court therefore affirms the judgment of the court of appeals.

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# The Supreme Court of the State of Colorado 2 East 14th Avenue . Denver, Colorado 80203

2026 CO 50M

Supreme Court Case No. 24SC747
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 23CA1415

Petitioner:
J.B., as legal guardian and personal representative of E.B., an adult with a
disability,

V.

Respondents:
MKBS, LLC d/b/a Metro Taxi, Inc. a/k/a Metro Transportation Planning and
Solution Group and Jesus Manuel Ortiz.

Judgment Affirmed
en banc
June 23, 2026

Opinion modified, and as modified, petition for rehearing DENIED. EN BANC.
August 3, 2026

Attorneys for Petitioner:

Burg Simpson Eldredge Hersh & Jardine, P.C.

Jessica B. Prochaska

Jessica L. Breuer

D. Dean Batchelder

Englewood, Colorado

Attorneys for Respondent MKBS, LLC d/b/a Metro Taxi, Inc. a/k/a Metro
Transportation Planning and Solution Group:

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Harris, Karstaedt, Jamison & Powers, P.C.
Jamey W. Jamison
Mark A. Sares
Englewood, Colorado

Attorneys for Respondent Jesus Manuel Ortiz:
Squire Patton Boggs (US) LLP
Keith Bradley
Kayla Marie Mendez
Denver, Colorado

Squire Patton Boggs (US) LLP
Samuel Ballingrud
Washington, District of Columbia

JUSTICE HOOD delivered the Opinion of the Court, in which JUSTICE
BOATRIGHT, JUSTICE GABRIEL, JUSTICE SAMOUR, JUSTICE
BERKENKOTTER, and JUSTICE BLANCO joined.
CHIEF JUSTICE MÁRQUEZ dissented.

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JUSTICE HOOD delivered the Opinion of the Court.

11 Jesus Manuel Ortiz was accused of sexually assaulting E.B., whom he
regularly drove to activities as part of his employment with MKBS, LLC
("MKBS"), a taxi company. E.B.'s legal guardian, J.B., 1 sued both Ortiz and MKBS;
however, Ortiz never responded to the complaint, and the district court entered a
clerk's default against him.

12 During J.B.'s subsequent trial against MKBS, the court allowed Ortiz to
testify contrary to the facts established by his default, and the jury found in
MKBS's favor. Then, upon Ortiz's request, the court set aside the default and
entered judgment in Ortiz's favor.

13 J.B. appealed. We agree with the division majority below that the district
court properly (1) allowed Ortiz to testify at MKBS's trial (despite the default),
(2) set aside the default judgment entered against Ortiz, and (3) entered judgment
in his favor consistent with MKBS's jury verdict. Therefore, we affirm the
judgment of the court of appeals.

1 The complaint was filed by both of E.B.'s legal guardians, A.B. and J.B. However,
only J.B. petitioned this court. For ease of reference, we only refer to J.B.
throughout the opinion.

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## I. Facts and Procedural History

14
J.B. is the personal representative and legal guardian of E.B., a cognitively
impaired, blind adult who uses a wheelchair. For several years, E.B. used MKBS
to transport her to a day-program center. Ortiz was E.B.'s regular driver for a few
months, and E.B. alleged that, during one of her trips with Ortiz, he sexually
assaulted her.

15
J.B. filed suit against MKBS and Ortiz based on the alleged sexual assault.
She asserted claims against Ortiz for outrageous conduct, intentional infliction of
emotional distress, battery, and assault. She also asserted claims against MKBS
for negligent hiring and retention, negligent supervision, negligence, negligent
infliction of emotional distress, respondeat superior liability, and outrageous
conduct. MKBS filed a timely answer denying the claims against it. Ortiz failed
to respond to the complaint, and the district court granted J.B.'s motion for entry
of default against Ortiz pursuant to C.R.C.P. 55(a).

16
The effect of the default was that Ortiz was deemed to have admitted the
material allegations in J.B.'s complaint. See Pinkstaff v. Black & Decker (U.S.) Inc.,
211 P.3d 698, 703 (Colo. 2009). The order granting the entry of default directed J.B.
to file a motion for default judgment against Ortiz within thirty-five days. J.B.,
however, didn't move for a default judgment for almost two years (after the civil
trial against MKBS).

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17
While the civil case was pending, Ortiz faced criminal charges for the same
incident. J.B. and MKBS conferred and jointly filed a motion to stay the civil
proceedings pending resolution of Ortiz's criminal trial due to impediments to
discovery and the development of evidence for both parties. The district court
granted the motion. The criminal case went to trial, and a jury acquitted Ortiz. In
the civil case, J.B. filed, and the court granted, a motion to exclude evidence of
Ortiz's acquittal in the criminal case.

18 At a pretrial conference, MKBS indicated that it planned to call Ortiz to
testify in its defense. J.B. moved to preclude Ortiz from making any arguments or
presenting testimony that would contradict the factual allegations he admitted by
default. The district court denied the motion, concluding that J.B. knew she had
to prove liability as to MKBS and failed to provide authority to support her claim
that Ortiz's default admissions were binding on MKBS or that MKBS was
precluded from introducing Ortiz's testimony as it related to MKBS's liability.

19
The jury trial began, but the court quickly declared a mistrial because Ortiz
was at the courthouse talking near and with prospective jurors about the lawsuit
and the fact that he was accused of sexual assault. The court reset the trial to begin
a couple of months later.

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110
At trial, Ortiz testified for MKBS and denied sexually assaulting E.B. He
also acknowledged that he was in default and aware that MKBS's lawyer was not
representing him in the civil case.

111 Before closing arguments, the district court read, among others, the
following jury instruction aloud in open court:

When a defendant has failed to defend himself in a lawsuit, a
default shall enter against him. An entry of default establishes a
defendant's liability and the allegations in the plaintiff's complaint
concerning the defaulting defendant are deemed admitted as to that
defendant. An entry of default, however, is not an admission
regarding damages.

Jesus Ortiz is a defaulting defendant.

The jury returned a verdict in MKBS's favor, and on a special verdict form, the jury
indicated that, "with respect to all claims against [MKBS]," Ortiz didn't sexually
assault E.B. The jury also concluded that E.B. didn't have any injuries, damages,
or losses from the alleged sexual assault.

112 About a month after the trial, J.B. moved for entry of a default judgment
against Ortiz pursuant to C.R.C.P. 55(b). The court entered judgment against Ortiz
in the amount of almost $700,000 based on the evidence that J.B. had presented
during MKBS's trial.

113 Then, Ortiz, filing pro se, moved to set aside the default judgment. The
district court granted Ortiz's motion, finding that he had established excusable
neglect. J.B. moved for reconsideration, and the court denied J.B.'s motion.

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114 Ortiz, now represented by counsel, then moved for entry of judgment in his
favor. After a hearing, the court granted the motion. The court relied on the
verdict from MKBS's jury trial in issuing its order. And because the jury had found
that E.B. had no injury, damages, or losses from the alleged sexual assault, the
court concluded that the determination of damages had been fully resolved.

115 J.B. appealed, and in a split decision, a division of the court of appeals
affirmed the district court's judgment. J.B. v. MKBS, LLC, 2024 COA 117, 1 89,
563 P.3d 189, 203. Judge Schutz dissented, expressing concern that the majority
opinion "reward[ed] a defendant who failed to comply with litigation deadlines,
and depriv[ed] a plaintiff of their opportunity to try their claims against the
defaulted defendant." Id. at 1 92, 563 P.3d at 203 (Schutz, J., dissenting).

116
J.B. petitioned this court for certiorari review, and we granted her petition.2

2 We granted certiorari to review the following issues:

1\. Whether the court of appeals erred in affirming the trial court's
order permitting a defaulting defendant to testify contrary to the
facts of his default.

2\. Whether the court of appeals erred in affirming the trial court's
order entering judgment, premised on the verdict the jury reached
after hearing a defaulting defendant's testimony contrary to his
default, in favor of that same defendant.

3\. Whether the court of appeals erred in affirming the trial court's
order setting aside the default judgment entered against a
defaulting defendant, misapplying the applicable three factor test
and its heightened standard of proof.

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## II. Analysis

117 We begin by addressing the issue of preservation and identifying the
standard of review. Next, we discuss whether a defaulting defendant may testify
at a non-defaulting codefendant's trial contrary to facts deemed admitted by his
default. Then, we review the factors a court must balance before setting aside a
default judgment and apply them to the facts of this case. Finally, we analyze
whether the district court erred by entering judgment in favor of Ortiz based on
the jury verdict in MKBS's trial.

### A. Preservation and Standard of Review

118 Ortiz argues that J.B. did not preserve the issue of whether a defaulting
defendant may testify at a non-defaulting codefendant's trial. However, we agree
with the division majority that J.B. preserved this issue through her motion
arguing that she would be unfairly prejudiced if the court permitted Ortiz to
testify. See J.B., 1 34, 563 P.3d at 195.

119 Generally, we review for an abuse of discretion a district court's decision on
whether to allow someone to testify, see Murray v. Just In Case Bus. Lighthouse, LLC,
2016 CO 47M, T1 32, 41, 374 P.3d 443, 453, 455, whether to set aside a default
judgment for excusable neglect, McMichael v. Encompass PAHS Rehab. Hosp., LLC,
2023 CO 2, 1 12, 522 P.3d 713, 719, and whether to enter judgment in favor of a
defaulting defendant, see also Ehrlinger v. Parker, 327 P.2d 267, 269 (Colo. 1958). A

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district court abuses its discretion when its decision is based on a misapplication
or misinterpretation of the law, or is otherwise manifestly arbitrary, unreasonable,
or unfair. People v. West, 2025 CO 61, 1 13, 578 P.3d 832, 835; People v. Chavez,
2020 COA 80M, 18, 486 P.3d 377, 378.

120 But here, we must first consider whether a defaulting party's testimony may
be admissible in a non-defaulting defendant's trial and whether a defaulting
defendant may be entitled to judgment in his favor to avoid inconsistent
adjudications, which are questions of law that we review de novo. See Dickinson v.
Lincoln Bldg. Corp., 2015 COA 170M, 1 21, 378 P.3d 797, 804. If we answer these
threshold legal questions in the affirmative, we then review for an abuse of
discretion a trial court's more fact-driven decision regarding whether to permit a
witness to testify or to enter judgment in favor of a defaulting defendant.

## B. Permitting a Defaulting Defendant to Testify at a Non-Defaulting Codefendant's Trial

121 Rule 55 governs the entry of default judgments. Under Rule 55(a), a clerk
shall enter a default "[w]hen a party against whom a judgment for affirmative
relief is sought has failed to plead or otherwise defend." An entry of default
"constitutes an admission by the defendant of the material allegations contained
in the complaint, and the only remaining issue to be determined is the amount of
damages." Pinkstaff, 211 P.3d at 703; see also Kwik Way Stores, Inc. v. Caldwell,
745 P.2d 672, 678 (Colo. 1987) (explaining that an entry of "default establishes

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liability but does not fix the amount of damages" (citation omitted)). The plaintiff
may then move for a default judgment to be entered, after which the court will
determine damages and, if needed, may hold a hearing to do so. C.R.C.P. 55(b)(1).
Defaulting defendants may not challenge their liability at a Rule 55(b)(1) damages
hearing. Dickinson, 1 37, 378 P.3d at 806. Unless a default is set aside, a defendant
is precluded from "urging anything contrary to the complaint." Bettcher v. State ex
rel. Att'y Gen., 344 P.2d 969, 971 (Colo. 1959). In other words, a defaulting
defendant may not testify or present evidence at a damages hearing that is
contrary to the factual basis he is deemed to have admitted by the entry of default.
122 The Rules are silent about the use of a defaulting defendant's testimony in
other proceedings.

123 For two reasons, the division majority held that the district court didn't
abuse its discretion by allowing MKBS to call Ortiz as a witness: (1) Ortiz's
testimony was relevant to the central question of whether MKBS was liable to J.B.,
and MKBS's ability to defend itself would be materially prejudiced if Ortiz was
prevented from testifying; and (2) Ortiz didn't testify in his capacity as a
codefendant and didn't challenge his own liability under the default -he was a
subpoenaed witness in a non-defaulting defendant's trial. J.B., 11 37-39, 44-46,
563 P.3d at 196-97. J.B. counters that allowing defaulting defendants to testify

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about their liability would undercut the reasons for default. We agree with the
division majority that the district court didn't abuse its discretion.

124 Defendants are generally allowed to defend themselves with the best
evidence available, subject to the limits imposed by constitutions, rules, and
statutes. See CRE 402 ("All relevant evidence is admissible, except as otherwise
provided by the Constitution of the United States, by the Constitution of the State
of Colorado, by these rules, or by other rules prescribed by the Supreme Court, or
by the statutes of the State of Colorado."); see also Pub. Utils. Comm'n v. Donahue,
335 P.2d 285, 291 (Colo. 1959) (stating that parties should be afforded a fair
opportunity to present their case and submit all pertinent facts). "The truth-
seeking function of our legal system is thwarted ... if the finder of fact is denied
[material] evidence at trial." Warembourg v. Excel Elec., Inc., 2020 COA 103, 1 1,
471 P.3d 1213, 1217. Accordingly, a non-defaulting codefendant may call a
defaulting defendant to testify, as long as doing so isn't prohibited by other
sources of law. See Henry v. Oluwole, 108 F.4th 45, 49-50 (2d Cir. 2024) (concerning
a defaulting employee testifying at his employer's trial for claims deriving from
the employee's conduct).

125 Our conclusion isn't novel. For example, in Henry, the plaintiff alleged that
her doctor sexually assaulted her. Id. at 49. She asserted numerous claims against
the doctor and the hospital where he worked at the time of the alleged assault. Id.

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The doctor failed to respond to the complaint, and the court entered a default
against him. Id. At the subsequent trial against the hospital, the doctor was
allowed to testify, and the jury found that he hadn't assaulted the plaintiff,
absolving the hospital of liability. Id. at 50.

126 Just as the hospital in Henry relied on the doctor's testimony to defend
against the sexual assault allegations, MKBS called Ortiz to defend itself.
Therefore, we find this federal precedent instructive. See Ferraro v. Frias Drywall,
LLC, 2019 COA 123, 1 15, 451 P.3d 1255, 1259 (explaining that Colorado's default
judgment rule- Rule 55-is similar to its federal counterpart, so we may rely on
federal cases for guidance in interpreting the rule); see also Brown v. Walker Com.,
Inc., 2022 CO 57, 1 15, 521 P.3d 1014, 1018. Ortiz was one of only two people
present at the time of the alleged sexual assault, so MKBS would've been
prejudiced if it hadn't been allowed to call him as a witness. See People v. Jackson,
2018 COA 79, 1 51, 474 P.3d 60, 72 (stating that the jury's truth-finding function
and the interests of justice are better served by admitting observations from
someone who was a firsthand witness to the event), aff'd, 2020 CO 75, 472 P.3d 553.
127 Additionally, the clerk's entry of default against Ortiz constituted an
admission of the facts alleged in the complaint, but it wasn't a judgment on the
merits of the case. We have a long-established preference for resolving cases on
the merits rather than through default judgments whenever possible. See

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McMichael, 1 11, 522 P.3d at 718-19. Prohibiting MKBS from introducing Ortiz's
firsthand testimony because of an entry of default against Ortiz would subvert this
preference. Allowing Ortiz to testify promoted the truth-seeking function of our
legal system.

128 Furthermore, although defaulting defendants are prohibited from
challenging their liability at a Rule 55(b)(1) damages hearing, Dickinson, 1 37,
378 P.3d at 806, there is no rule that prevents a defaulting defendant from
testifying as a witness at a different defendant's trial. The trial here was limited in
scope to determining MKBS's liability and damages. Ortiz's liability to J.B. wasn't
at issue in this trial; he was testifying as a subpoenaed witness (not a codefendant),
and the jury was instructed that he was deemed liable for the sexual assault by
virtue of his default.

129 Therefore, we agree with the division majority that the district court didn't
abuse its discretion by allowing Ortiz to testify at MKBS's trial even though his
testimony contradicted the facts admitted by his default. See J.B., 1 48, 563 P.3d at
197.

## C. Setting Aside a Default Judgment

130 Default judgment is disfavored and should be imposed only in extreme
circumstances. McMichael, 1 11, 522 P.3d at 718. "A judgment by default is not
designed to be a device to catch the unwary or even the negligent." R.F. v. D.G.W.,

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560 P.2d 837, 839 (Colo. 1977). And so, "when doubt exists as to whether a default
should be granted or vacated, the doubt should be resolved in favor of the
defaulting party." Henry, 108 F.4th at 51 (quoting Enron Oil Corp. v. Diakuhara,
10 F.3d 90, 96 (2d Cir. 1993)).

131 Rule 55(c) allows a court to set aside a default judgment in accordance with
C.R.C.P. 60(b). Under Rule 60(b), the defaulting party has the burden to prove by
clear and convincing evidence that the court should grant the motion to set aside
a default judgment. Goodman Assocs., LLC v. WP Mountain Props., LLC, 222 P.3d
310, 315 (Colo. 2010). A court may set aside a default judgment if the defaulting
party establishes excusable neglect for its failure to respond. C.R.C.P. 60(b). A
court should consider three factors in determining whether to set aside a default
judgment for excusable neglect: "(1) whether the neglect that resulted in entry of
judgment by default was excusable; (2) whether the moving party has alleged a
meritorious claim or defense; and (3) whether relief from the challenged order
would be consistent with considerations of equity." Goodman, 222 P.3d at 319.
Because resolution of a dispute on the merits is favored over a default judgment,
courts should liberally construe these factors in favor of the defaulting party. Id.
at 320.

132 The division majority held, and we agree, that the district court "did not
abuse its discretion by setting aside the default judgment entered against Ortiz

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because it properly considered the three C.R.C.P. 60(b) factors." J.B., 1 56, 563 P.3d
at 198.

133 First, the division majority agreed with the district court's finding that
Ortiz's failure to respond to J.B.'s complaint was excusable because he was
legitimately confused about whether an attorney represented him. Id. at 11 57,
64-65, 563 P.3d at 198-99. The district court reasonably relied on Ortiz's
explanation in his motion to set aside the default, in which he said that he believed
that MKBS's attorneys represented him because the incident happened during his
employment. Id. at 11 62, 64, 563 P.3d at 199. Additionally, Ortiz explained that,
because he had a public defender represent him during his criminal trial and
because he was acquitted, he was confused as to what actions he needed to take in
the civil case. Id. at 1 57, 563 P.3d at 198.

134 We agree with the division majority that the district court properly applied
an objective test in finding that Ortiz's assumptions were reasonable. Id. at [ 62,
563 P.3d at 199. Excusable neglect hinges on whether a reasonably careful person
would have similarly neglected a duty. Goodman, 222 P.3d at 319. "Common
carelessness and negligence do not amount to excusable neglect." Id. (quoting In
re Weisbard, 25 P.3d 24, 26 (Colo. 2001)). But a reasonably careful person in Ortiz's
situation could have believed that his employer's counsel represented him because
the civil case arose out of an event that occurred while Ortiz was on the job. And

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although Ortiz testified at trial that he understood that MKBS's attorney didn't
represent him, he didn't say when he came to this understanding. The district
court noted that Ortiz didn't appear to have a sophisticated grasp of the legal
process, and it was therefore reasonable for him to believe that his employer's
counsel would also be representing him. We conclude that the district court didn't
abuse its discretion by concluding that, under these circumstances, a reasonably
careful person might have similarly neglected the duty to respond to the
complaint.

135 Second, we agree with the division majority that the district court didn't
abuse its discretion by concluding that the outcome of the MKBS trial indicated
that Ortiz had a meritorious defense. See J.B., TT 58, 66, 563 P.3d at 198-99. At
MKBS's trial, the jury found that Ortiz didn't assault E.B. and that E.B. didn't have
any injuries, damages, or losses from the alleged sexual assault. Id. at [ 58,
563 P.3d at 198. He was also acquitted of all criminal charges. Id.

136 Third, in determining whether setting aside a default judgment would be
consistent with considerations of equity, a court should "take into account the
promptness of the moving party in filing the [R]ule 60(b) motion, the fact of any
detrimental reliance by the opposing party on the order or judgment of dismissal,
and any prejudice to the opposing party if the motion were to be granted."
Goodman, 222 P.3d at 319 (quoting Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112,

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1116 (Colo. 1986)). Here, the division majority held that the district court properly
concluded that the considerations of equity weighed in Ortiz's favor because Ortiz
filed his motion to set aside the default only three weeks after its entry and,
although his actions caused a mistrial, when given instructions by the court, he
complied with them. See J.B., 1 60, 563 P.3d at 198-99.

137 The division majority was also unpersuaded by J.B.'s argument that it
would be unfair to set aside the default because she had relied on it. Id. at
11 67-68, 563 P.3d at 199-200. The division majority noted that J.B. waited until
after the MKBS trial to move for default judgment against Ortiz despite the court's
entry of default two years earlier. Id. at [ 68, 563 P.3d at 199-200. A motion to set
aside a judgment under Rule 60(b) is used to set aside a default judgment issued
under Rule 55(b), not to set aside a clerk's entry of default under Rule 55(a). So, in
determining whether J.B. detrimentally relied on the default against Ortiz, the
district court correctly looked at the default judgment entered after the trial in
2021, not the clerk's default entered in 2019.

138 Even if we were to consider J.B.'s reliance on the clerk's entry of default in
2019, any prejudice to her was minimal. J.B. knew that MKBS planned on calling
Ortiz to testify, and she was able to present evidence about the alleged sexual
assault and to cross-examine Ortiz.

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139 Regarding the concern about J.B.'s expenses, had Ortiz timely answered
J.B.'s complaint, she would have incurred similar costs to those already incurred
in her case against MKBS, so setting aside the default would not substantially
prejudice her. See Henry, 108 F.4th at 52-53 ("[I]t must be shown that delay will
result in the loss of evidence, create increased difficulties of discovery, or provide
greater opportunity for fraud and collusion." (quoting Davis v. Musler, 713 F.2d
907, 916 (2d Cir. 1983))). And the division majority deemed the expense that J.B.
might incur in a trial on the merits of her claim against Ortiz secondary to the other
factors. J.B., 1 60, 563 P.3d at 198. We therefore agree with the division majority
that the district court didn't abuse its discretion by concluding that the
considerations of equity weighed in Ortiz's favor.

## D. Entering Judgment in Ortiz's Favor

140 We agree with the United States Supreme Court that it would be "unseemly
and absurd, as well as unauthorized by law" to allow a default judgment to create
an incongruity with a judgment on the merits. Frow v. De La Vega, 82 U.S. 552, 554
(1872); see also In re Water Rts. of Elk Dance Colo., LLC, 139 P.3d 660, 667 (Colo. 2006)
(explaining that avoiding inconsistent judgments promotes reliance on the judicial
system). So, we, like a majority of federal courts, adopt and expand the rule from
Frow, which "prohibits a default judgment that is inconsistent with a judgment on
the merits," Moore v. Booth, 122 F.4th 61, 67 (2d Cir. 2024) (quoting Henry, 108 F.4th

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at 53), as long as "the defendants are 'similarly situated' or have 'closely related
defenses' even if not jointly liable," id. See Schenck v. Van Ningen, 719 P.2d 1100,
1102 (Colo. App. 1986). Therefore, when a jury verdict conflicts with the
allegations in a plaintiff's complaint, a default judgment based on those allegations
should be vacated. Henry, 108 F.4th at 56.

141 Again, we find the Second Circuit's reasoning in Henry helpful. As in Henry,
a judgment against Ortiz would directly conflict with the jury verdict entered at
the conclusion of the MKBS trial, finding that Ortiz hadn't sexually assaulted E.B.
and that E.B. had no injuries, damages, or losses from the alleged sexual assault.
See Henry, 108 F.4th at 55-56, 63 (applying the rule from Frow, the court ordered
the district court to enter judgment in favor of the doctor because the jury from the
codefendant hospital's trial concluded that the doctor hadn't sexually assaulted
the plaintiff). Similar to the plaintiff in Henry, who had the opportunity to examine
and challenge the doctor's version of the alleged sexual assault and present
essentially the same evidence at the hospital's trial that she would have presented
in a trial against the doctor, 108 F.4th at 54, J.B. had the same opportunity to present
evidence about the alleged sexual assault and cross-examine Oritz in the trial
against MKBS as she would have had in a trial against Ortiz.

142 Therefore, given the preference for a judgment on the merits over one
entered by default and to avoid the entry of inconsistent judgments, we conclude

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that the district court didn't abuse its discretion by entering judgment in favor of
Ortiz.

## III. Conclusion

143
We affirm the judgment of the court of appeals.

CHIEF JUSTICE MÁRQUEZ dissented.

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CHIEF JUSTICE MÁRQUEZ, dissenting.

144 As Judge Schutz observed in his dissent below, this case "requires us to
make difficult choices balancing the tension between the desire for entering
consistent judgments, holding defaulted parties accountable, and ensuring parties
an opportunity to pursue their claims." J.B. v. MKBS, LLC, 2024 COA 117, 1 90,
563 P.3d 189, 203 (Schutz, J., dissenting). The majority strikes the balance today in
a way that not only fails to hold Jesus Manuel Ortiz accountable for his default but
ultimately rewards him for the very conundrum he created. Indeed, by upholding
the entry of judgment in Ortiz's favor-a judgment that can be directly traced to
Ortiz's improper testimony contrary to facts admitted through his default-the
majority also simultaneously deprives the plaintiff of any opportunity to try her
claims against Ortiz. All told, this is a startling outcome for a defendant who
defaulted, and for a plaintiff who played by the rules.

145 Today's outcome undermines the stability and predictability of the rules of
procedure that undergird our legal system. Moreover, this outcome is
unnecessary, assuming the goal was to strike a fair balance between the interests
of the plaintiff, J.B., Ortiz, and MKBS, LLC ("MKBS").

146 Importantly, the claims against MKBS did not require the jury to resolve the
question of whether a sexual assault occurred. While MKBS may have preferred
to have Ortiz testify that he did not sexually assault E.B., his testimony was not, in

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fact, legally necessary to MKBS's defense. The district court nevertheless allowed
Ortiz to testify as a witness at MKBS's trial to facts directly contrary to the
admissions made through his default. This error set in motion a chain of events
that ultimately allowed Ortiz to not only escape his own default but to ultimately
claim judgment in his favor as a party on the merits of J.B.'s claims - all without
ever facing a trial on those claims.

147 The majority blesses this outcome, Maj. op. 1 3, and along the way,
misapplies the narrow rule in Frow v. De La Vega, 82 U.S. 552, 554 (1872), while
simultaneously ignoring the salient language from that decision emphasizing that
a defaulting defendant is not entitled to "adduce . . . evidence" or "be heard" at a
proceeding against a codefendant or to "appear in it in any way."

148
For these reasons, I respectfully dissent.

## I. The Majority Misapplies Frow

149
The majority relies on Frow to justify entering judgment in Ortiz's favor,
reasoning that Frow "prohibits a default judgment that is inconsistent with a
judgment on the merits." Maj. op. 1 40 (quoting Moore v. Booth, 122 F.4th 61, 67
(2d Cir. 2024)). But the decision in Frow stands for a narrow rule applicable to
situations involving joint liability - which is not the case here.

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150 In Frow, the plaintiff alleged a joint conspiracy by several defendants,
including Frow, to defraud the plaintiff of a tract of land. 82 U.S. at 552-53.1 Frow
failed to respond to the complaint and the court entered a decree against him. Id.
at 553. While Frow's appeal was pending, a bench trial proceeded against the non-
defaulting defendants, and the court ultimately ruled in their favor. Id. In
resolving Frow's appeal, the Supreme Court observed that "in such a case as this,"
the incongruent judgments (one against Frow and another in favor of all the other
codefendants regarding title to the same property) created an "unseemly and
absurd" situation. Id. at 554.

151 The Court then explained the procedure to be followed in such cases:
"[W]here a bill makes a joint charge against several defendants, and one of them
makes default, [the proper procedure] is simply to enter a default . . . against him,
and proceed with the cause upon the answers of the other defendants." Id.
(emphasis added). The Court reasoned that if the case is then decided against the
plaintiff on the merits, the case should be "dismissed as to all the defendants
alike-the defaulter as well as the others" - and vice versa. Id.

1 These facts are taken from the syllabus in Frow and confirmed in 10 Moore's
Federal Practice - Civil § 55.36[2], LEXIS (database updated 2026). See also J.B., 1 95
& n.2, 563 P.3d at 204 & n.2 (Schutz, J., dissenting).

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152
2 Frow thus sought to avoid the specific outcome where "there might be one
decree of the court sustaining the charge of joint fraud committed by the
defendants; and another decree disaffirming the said charge, and declaring it to be
entirely unfounded, and dismissing the [plaintiff's] bill." Id. (emphasis added). In
other words,

Frow stands for the narrow rule that a default judgment may not be
entered against one of several defendants (1) when the theory of
recovery is one of true joint liability, such that, as a matter of law, no
one defendant may be liable unless all defendants are liable, or
(2) when the nature of the relief demanded is such that, in order to be
effective, it must be granted against each and every defendant.

10 Moore's Federal Practice - Civil § 55.36[2], LEXIS (database updated 2026).

153
53 Frow's narrow rule is simply inapplicable here. The claims against MKBS
that were submitted to the jury in this case (negligence, negligent supervision,
negligent retention, and negligent infliction of emotional distress) do not involve
joint and several liability with Ortiz. And importantly, a jury could find MKBS
not liable for such claims (i.e., not negligent, or not a cause of the plaintiff's
damages) without having to resolve the question of whether a sexual assault
occurred. In other words, while MKBS preferred to contest that the assault
occurred, it was not legally necessary for it to do so to avoid liability. Enforcing

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the consequence of Ortiz's default would not have deprived MKBS of a
meaningful opportunity to defend the case against it.2

154 Instead, the majority concludes that "a non-defaulting codefendant may call
a defaulting defendant to testify, as long as doing so isn't prohibited by other
sources of law," Maj. op. [ 24, and that "there is no rule that prevents a defaulting
defendant from testifying as a witness at a different defendant's trial," id. at 1 28.
But in fact, Frow expressly prohibits this.

155 Indeed, the Court in Frow emphasized that a defaulting defendant is
"not ... entitled" to "appear in [the proceeding] in any way. He can adduce no
evidence, he cannot be heard at the final hearing." 82 U.S. at 554 (emphases added).

156 Thus, under Frow, the district court erred by permitting Ortiz to testify in
this case at all, let alone testify contrary to the facts he admitted by default. As
Judge Schutz explained,

The [division] majority's rationale gives Ortiz the benefit of the Frow
rule without adhering to the basic precept that any judgment entered
in favor of the remaining defendants must be obtained without the
participation of the defaulted defendant. And in doing so, the

2 The majority's reliance on the Second Circuit's decision in Henry v. Oluwole,
108 F.4th 45 (2d Cir. 2024), is misplaced. Maj. op. [ 41. The case is not binding,
nor does it serve as persuasive precedent for the proposition cited by the majority.
Although the defendant in that case was allowed to testify at the trial of his non-
defaulting codefendants, the propriety of such testimony was neither raised by the
parties nor addressed by the court. See Henry, 108 F.4th at 49-50, 53-54.

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majority approves a process that is contrary to the principles of
consistency, accountability, and fairness that it seeks to promote.

J.B., [ 104, 563 P.3d at 206 (Schutz, J., dissenting) (footnote omitted).

## II. The Initial Error Under Frow Is Then Compounded

157 Having taken this wrong turn at the outset, the majority, following the
courts below, then compounds this error in multiple ways.

158 First, the district court correctly instructed the jury that Ortiz, as a defaulting
defendant, was liable to J.B. and a cause of her damages, if any. This was
appropriate given that the court had already determined that Ortiz's default
established a legally binding admission. But then, the court contradicted its own
instructions by presenting the jury with a special verdict form asking it to
determine whether Ortiz sexually assaulted E.B.3 Importantly, neither the jury
instructions nor the special verdict form contained any claim for relief against
Ortiz, yet the district court later relied on Ortiz's testimony and the jury's
responses to the special verdict form to determine that Ortiz had a meritorious
defense justifying setting aside his default judgment.

3 Although the plaintiff presented this verdict form, she was essentially forced to
do so after the district court made multiple pretrial rulings indicating that it would
permit Ortiz to testify that he did not sexually assault E.B. And as Judge Schutz
noted, the plaintiff continued to contest the district court's rulings. J.B., [ 111,
563 P.3d at 207 (Schutz, J., dissenting).

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159 The majority makes the same mistake. It concludes that the district court
properly permitted Ortiz to testify contrary to the facts he admitted by default
under C.R.C.P. 55 by reasoning that "Ortiz's liability to J.B. wasn't at issue in this
trial; he was testifying as a subpoenaed witness (not a codefendant)." Maj. op.
[ 28. But then, the majority affirms the division's reasoning allowing Ortiz to
effectively leverage that testimony and the jury's special verdict finding to assert
that he had a meritorious defense as a defaulting party under C.R.C.P. 60(b). Maj.
op. 1 35 (agreeing with the division that the district court did not abuse its
discretion); J.B., 1 58, 563 P.3d at 198 (explaining that the district court did not
abuse its discretion when "the court found that Ortiz 'asserted a meritorious
defense, namely that he did not assault [E.B.]."" (alteration in original)). Thus, the
majority allows Ortiz's testimony at MKBS's trial specifically because Ortiz's
liability is not at issue with respect to the claims against MKBS-but then permits
Ortiz to use that very testimony and the resulting special verdict to directly contest
his liability under C.R.C.P. 60(b).

160 Finally, as if setting aside the default judgment were not enough, instead of
allowing the plaintiff to move forward with her claims, the majority affirms the
lower courts' additional final step of affirmatively entering judgment in Ortiz's
favor on those claims, reasoning that Frow requires this result to avoid inconsistent

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judgments. Maj. op. 11 40, 42. Yet for the reasons stated above, the rule of Frow
is inapplicable here.

161 None of this was necessary. As Judge Schutz explains, the inconsistency the
majority seeks to remedy could have been avoided by prohibiting Ortiz from
testifying contrary to the facts he was deemed to have admitted by his default.
J.B., 1 107, 563 P.3d at 206 (Schutz, J., dissenting).

## III. Conclusion

162 And so, as a consequence of the initial erroneous decision, contrary to Frow,
to allow Ortiz to testify directly contrary to facts deemed admitted as a matter of
law by his default, Ortiz is rewarded with a judgment in his favor on the merits of
J.B.'s claims, even though he defaulted, and even though J.B.'s claims against Ortiz
were never tried or adjudicated. I agree with Judge Schutz that "[s]uch a
conclusion does not serve the laudable principles of consistency, accountability, or
basic fairness." Id. at | 117, 563 P.3d at 208.

163
Accordingly, I respectfully dissent.