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 

¶ 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 
2 

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 
3 

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 
4 

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. 
5 

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. 
6 

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. 
7 

¶ 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 
8 

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 
9 

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. 
10 

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 
11 

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) 
12 

¶ 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. 
13 

¶ 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). 
14 

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). 
15 

¶ 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. 
16 

 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. 
17 

 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 
18 

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). 
19 

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 
20 

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 
21 

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 
22 

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 
23 

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 posttrial 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. 
24 

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, 
25 

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 
26 

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 

 

6 Given 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. 
27 

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.