C.R.C.P. 42

History

Cross references: For judgement on a counterclaim or cross claim if separate trial is ordered, see C.R.C.P. 13(i); for separate trial of third-party issues, see C.R.C.P. 14(a); for separate judgments, see C.R.C.P. 54(b); for harmless error, see C.R.C.P. 61. ANNOTATION I. General Consideration. II. Consolidation. III. Separate Trials. IV. Court Sessions Public. I. GENERAL CONSIDERATION. Law reviews. For article, ‘‘Trials: Rules 38- 53’’, see 23 Rocky Mt. L. Rev. 571 (1951). For article, ‘‘One Y ear Review of Civil Procedure and Appeals’’, see 38 Dicta 133 (1961). The submission of issues for special ver- dicts is appropriate, especially when the issues are complicated or likely to confuse the jury. Thus, the submission of special issues of fact to the jury lies within the sound discretion of the trial court. Molnar v. Law, 776 P.2d 1156 (Colo. App. 1989). Applied in Dolan v. Mitchell, 179 Colo. 359, 502 P.2d 72 (1972); Gleason v. Guzman, 623 P.2d 378 (Colo. 1981); Judd Constr. Co. v. Ev- ans Joint V enture, 642 P.2d 922 (Colo. 1982). II. CONSOLIDATION. This rule for consolidation of causes of actions is a departure from the former Code of Civil Procedure. Willy v. Atchison, T. & S. F. Ry., 115 Colo. 306, 172 P.2d 958 (1946). Consolidated suits do not merge into a single cause or make those who are parties in one suit parties in another. Nat’l Farmers Union Prop. & Cas. Co. v. Frackelton, 645 P.2d 1321 (Colo. App. 1981); Nat’l Farmers Union Prop. & Cas. Co. v. Frackelton, 650 P.2d 571 (Colo. App. 1981), aff’d, 662 P.2d 1056 (Colo. 1983). A discretionary order of consolidation does not merge the consolidated suits into a single cause of action. Nat’l Farmers Union Prop. & Gas. Co. v. Frackelton, 662 P.2d 1056 (Colo. 1983). It gives to the trial judge discretionary authority to consolidate actions. Willy v. Atchison, T. & S. F. Ry., 115 Colo. 306, 172 P.2d 958 (1946). Consolidation is a matter of the trial court’s discretion. Nat’l Farmers Union Prop. & Cas. Co. v. Frackelton, 650 P.2d 571 (Colo. App. 1981), aff’d, 662 P.2d 1056 (Colo. 1983). Consolidation is a matter within the discre- tion of a trial court, and its exercise of that discretion will not be distributed absent a clear showing of abuse. People ex rel. J.F., 672 P.2d 544 (Colo. App. 1983). Consolidation is not an abuse of discretion where common questions of law and fact were present. Mortgage Inv. Corp. v. Battle Mountain Corp., 56 P.3d 1104 (Colo. App. 2001), rev’d on other grounds, 70 P.3d 1176 (Colo. 2003). Consolidation not abuse of court’s discre- tion where husband and wife were alleging that same defendant had been negligent to both par- ties, the same questions of law relating to proxi- mate cause and damages were raised by both plaintiffs, and both plaintiffs were represented by same attorney. Askew v. Gerace, 851 P.2d 199 (Colo. App. 1992). Standard of review shall be used by courts of review. It is only when it clearly appears that discretionary authority has been abused that courts of review will hold that the consolidation was prejudicial to a complaining party. Willy v. Atchison, T. & S. F. Ry., 115 Colo. 306, 172 P.2d 958 (1946). Consolidating several tort actions growing out of one accident was proper. The trial judge did not abuse his discretion in consolidating actions by a widow for the death of her hus- band, for medical care of her minor child, and, as next friend of her minor child, for injuries suffered by the child, all of which actions grew out of the same accident. Willy v. Atchison, T. & S. F. Ry., 115 Colo. 306, 172 P.2d 958 (1946). Consolidation would have been proper course of action, rather than dismissing one of two cases on the day of trial, if both actions involve common question of law or fact. Weyerhaeuser Mortgage Co. v. Equitable Gen. Ins. Co., 686 P.2d 1357 (Colo. App. 1983). Consolidation does not change different appeal procedures applicable to individual cases. Denver v. Bd. of Assessment Appeals, 748 P.2d 1306 (Colo. App. 1987). Applied in Schimmel v. District Court, 155 Colo. 240, 393 P.2d 741 (1964). III. SEPARATE TRIALS. Law reviews. For note, ‘‘Res Judicata — Should It Apply to a Judgment Which is Being Appealed?’’, see 33 Rocky Mt. L. Rev. 95 (1960). For article, ‘‘One Y ear Review of Civil Procedure and Appeals’’, see 40 Den. L. Ctr. J. 66 (1963). For article, ‘‘One Y ear Review of Torts’’, see 40 Den. L. Ctr. J. 160 (1963). This rule vests discretion in the trial court as to whether there shall be separate trials of multiple claims. Moseley v. Lamirato, 149 Colo. 440, 370 P.2d 450 (1962); Prudential Prop. & Cas. Ins. Co. of Am. v. District Court, 617 P.2d 556 (Colo. 1980); People in Interest of D.M.W., 752 P.2d 587 (Colo. App. 1987). A trial judge is permitted wide discretion when he finds that the necessary prerequisites to separate trials laid down by the rules exist. Sutterfield v. District Court ex rel. County of Arapahoe, 165 Colo. 225, 438 P.2d 236 (1968). Upon finding that the jury might improp- erly use the evidence to show a propensity of negligent driving, the court properly bifur- cated separate claims of negligence and neg- ligent hiring and supervision. Martin v. Minnard, 862 P.2d 1014 (Colo. App. 1993). This rule is permissive, not mandatory. Moseley v. Lamirato, 149 Colo. 440, 370 P.2d 450 (1962). This rule is permissive and not mandatory, and the trial court has wide discretion in its application. Kielsmier v. Foster, 669 P.2d 630 (Colo. App. 1983). This section provides a remedy to prevent prejudice to parties resulting from joinder. Sutterfield v. District Court ex rel. County of Arapahoe, 165 Colo. 225, 438 P.2d 236 (1968). Court order as to joint or separate trial will not be disturbed in the absence of a clear showing that there has been an abuse of discre- tion. Prudential Prop. & Cas. Ins. Co. of Am. v. District Court, 617 P.2d 556 (Colo. 1980); O’Neal v. Reliance Mortg. Corp., 721 P.2d 1230 (Colo. App. 1986); Colo. Coffee Bean v. Peaberry Coffee, 251 P.3d 9 (Colo. App. 2010). Standard of review of discretionary power shall be used on appeal. A ruling by the trial court under this rule where it has discretionary power will not be disturbed on review, unless it be clearly shown that there was an abuse of such discretionary power. Moseley v. Lamirato, 149 Colo. 440, 370 P.2d 450 (1962). Severance without findings improper. Where the trial court made no finding that any of the conditions permitting separate trials of properly joined claims were present, the sever- ance cannot be sustained until proper findings are made. Sutterfield v. District Court ex rel. County of Arapahoe, 165 Colo. 225, 438 P.2d 236 (1968); Gaede v. District Court, 676 P.2d 1186 (Colo. 1984). But bifurcation without findings will not be disturbed unless it affected the substantial rights of the parties. Bjornsen v. Bd. of County Comm’rs of Boulder, 2019 COA 59, 487 P.3d 1015. Belated request properly denied. A request for a separate trial of the second claim of a complaint made moments before commence- ment of trial, where the case had been at issue more than seven months, was properly denied. Moseley v. Lamirato, 149 Colo. 440, 370 P.2d 450 (1962). Abuse of discretion in ordering joint trial occurs where the court’s failure to order sepa- rate proceedings virtually assures prejudice to a party. Prudential Prop. & Cas. Ins. Co. of Am. v. District Court, 617 P.2d 556 (Colo. 1980). Denial of motion for separate hearings not an abuse of discretion, where juvenile court found that issues concerning both parents were interlocked and that court as trier of fact would not have difficulty separating issues and evi- dence as to each party, and where no showing of actual prejudice was made. People in Interest of D.M.W., 752 P.2d 587 (Colo. App. 1987). Bifurcated trial on issue of liability for punitive damages in products liability suit not granted. In products liability claim, defen- dant did not make an adequate showing of past punitive damages awards arising out of the same course of conduct to warrant granting a bifurcated trial on the issue of punitive damages in order to avoid any prejudice to the defendant on the issue of liability. Palmer v. A.H. Robins Co., Inc., 684 P.2d 187 (Colo. 1984). IV. COURT SESSIONS PUBLIC. Protective order would not violate section (c) in trade secrets trial. Proviso in protective order for exclusion of the public would not violate the mandate of section (c) relating to public sessions of court where the trial involves trade secrets. Curtis, Inc. v. District Court, 186 Colo. 226, 526 P.2d 1335 (1974).