Harris v. Stallings

24CA1543 Harris v Stallings 07-24-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1543
Larimer County District Court No. 22CV30740
Honorable C. Michelle Brinegar, Judge

David Harris,

Plaintiff-Appellant,

v.

Dustin Stallings; Premier Medical Corporation, a Colorado Corporation;
Lincare, Inc., a Delaware Corporation; Lincare Holdings, Inc., a Delaware
Corporation; and RCS Management Holdings Company, a Delaware
Corporation,

Defendants-Appellees.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE TOW
Yun and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 24, 2025

The Law Office of Sam Cannon, LLC, Sam Cannon, Megan McDonald, Fort
Collins, Colorado; Metier Law Firm, LLC, R. Todd Ingram, Michael W.
Chaloupka, Rebecca J. Fisher, Fort Collins, Colorado, for Plaintiff-Appellant

Montgomery Amatuzio Chase Bell Jones, LLP, Lori K. Bell, Taylor G. Ostrowski,
Denver, Colorado, for Defendants-Appellees
¶1 Plaintiff, David Harris, appeals the judgment entered against

defendants, Dustin Stallings, Premier Medical Corporation

(Premier), and Lincare Holdings, Inc (Lincare).1 We will refer to

Premier and Lincare collectively as “the employers.” We affirm the

judgment in part, reverse it in part, and remand the case with

instructions for further proceedings.

I. Background

¶2 Harris was injured when Stallings, driving his employer’s

truck, turned left in front of Harris against the light and their

vehicles collided. Harris sued Stallings and various corporate

entities he alleged were Stallings’s employers. His claims against

the corporate entities were based on both vicarious liability as

1 Harris originally sued two other corporate entities — Lincare, Inc.,

and RCS Management Holdings Company (RCS). No judgment was
entered against either of these entities. The claims against Lincare,
Inc., were dismissed without prejudice by stipulation, and Harris’s
later effort to reinstate those claims was rejected by the court, thus
making the dismissal with prejudice. As to RCS, no evidence was
presented at trial about that entity, and the jury was not asked to
render any verdict on the claims against it. Those claims have
therefore been abandoned. See Scott Wetzel Servs., Inc. v. Johnson,
821 P.2d 804, 807-08 (Colo. 1991) (noting that the trial court’s
having instructed on only one of several claims implicitly meant
that the remaining claims had been abandoned).

1
Stallings’s employers and direct liability for negligent hiring,

training, and supervision.

¶3 On April 19, 2024, after a five-day trial, a jury found in favor

of Harris and awarded Harris $1.2 million in noneconomic damages

and $75,000 in physical impairment damages. The jury found

Stallings to be 5% at fault and found the employers, identified in

the verdict form as “Premier Medical Corporation/Lincare Holdings,

Inc.,” to be 95% at fault for their negligent training and supervision

of Stallings.

¶4 Several days later, Harris filed a motion for entry of judgment

along with a proposed order of judgment that did not reduce the

noneconomic damage award according to the statutory cap on such

damages. See § 13-21-102.5(3), C.R.S. 2024. Specifically, Harris

argued that the cap should be applied on a per defendant basis and

that because Premier and Lincare were separate entities, the total

award did not exceed the statutory cap. The employers objected,

arguing that, because the parties had treated the employers as a

single entity, the cap must apply to the single award as it relates to

those companies.

2
¶5 On June 27, 2024, the trial court entered a signed, written

order titled “Order Regarding Motion for Entry of Judgment” (the

June order). In this order, the trial court agreed with employers

and apportioned the judgment consistent with the jury’s findings

and applied the statutory cap to reduce the award against the

employers. The June order stated that “[j]udgment shall enter”

against defendants in a sum certain ($539,260 against the

employers and $63,750 against Stallings) plus statutory interest.

Further, the order stated that Harris was entitled to “interest on the

aforesaid amounts of the verdict at the rate of 9% per annum from

the date of the subject incident, December 23, 2019, until the

judgment is paid.” The court then instructed Harris to submit a

new proposed order of judgment “consistent with the Court’s

findings and parameters.”

¶6 Harris complied with that instruction on July 11, 2024,

submitting a proposed order of judgment consistent with the June

order. In this proposed order, Harris calculated the prejudgment

interest through July 11, 2024. As drafted by Harris, the proposed

order ended with “Judgment Enters on July 11, 2024.” On July 16,

3
the trial court signed this proposed order without changes (the July

order).

¶7 On August 29, 2024, Harris filed a notice of appeal identifying

several orders he wished to appeal, including the June order and

the July order, as well as a pretrial ruling denying his request to

seek exemplary damages. He asserted that judgment entered on

July 11, 2024, but was filed and served on the parties on July 16,

2024.

II. Jurisdiction

¶8 We must first address our jurisdiction to hear this appeal.

¶9 After briefing was complete, this court issued an order

directing Harris to show cause why the appeal should not be

dismissed with prejudice for failure to file a timely notice of appeal.2

The show cause order suggested that the June order was a final,

appealable judgment because it met all the criteria of a judgment

under C.R.C.P. 54(a) and 58(a): It was signed, written, and dated,

2 As Harris notes in his response to the show cause order,

defendants did not raise the timeliness of the appeal either in their
briefs or through a motion to dismiss. However, “[w]e must
determine independently our jurisdiction over an appeal, nostra
sponte if necessary.” Allison v. Engel, 2017 COA 43, ¶ 22, overruled
on other grounds by Wolf v. Brenneman, 2024 CO 31.

4
and it resolved all issues of liability and damages. Thus, because

Harris filed his notice of appeal more than forty-nine days after the

entry of the June order, it appeared that the appeal was not timely

filed.

¶ 10 In his response, Harris argues that the June order was not a

final and appealable judgment under C.R.C.P. 58. First, Harris

contends that the order did not reference C.R.C.P. 58 or say that

judgment entered on that date. Second, the trial court’s direction

to prepare a proposed order of judgment would have been

unnecessary if the June order were the judgment. And third, the

clerk of the court did not enter the June order as a judgment in the

register of actions. Alternatively, Harris argues that the court’s

actions and statements misled him as to the date of the entry of

judgment and, thus, the deadline for his appeal. Accordingly, we

should determine that his untimely filing was the result of

excusable neglect and accept the filing under C.A.R. 4(a)(4).

5
¶ 11 After reviewing Harris’s response, a motions division of this

court deferred the determination of this court’s jurisdiction to the

division considering the merits of the appeal.3

¶ 12 Reviewing our jurisdiction de novo, Stone Grp. Holdings LLC v.

Ellison, 2024 COA 10, ¶ 15, we conclude that the June order was a

final and appealable judgment, which Harris did not timely appeal;

nevertheless, we further conclude that he has demonstrated

excusable neglect for not doing so. Consequently, we accept the

appeal.

¶ 13 We begin by considering whether the June order was a

judgment. We conclude that it was.

A. Applicable Law

¶ 14 C.R.C.P. 54(a) defines “judgment” as “a decree and order to or

from which an appeal lies.” C.R.C.P. 58(a) provides that “[t]he term

‘judgment’ includes an appealable decree or order as set forth in

C.R.C.P. 54(a).” Rule 58(a) also provides that

[s]ubject to the provisions of C.R.C.P. 54(b),
upon a general or special verdict of a jury . . .
the court shall promptly prepare, date, and
sign a written judgment and the clerk shall

3 Though given the opportunity to file a response to the show cause

order, no defendant did so.

6
enter it on the register of actions as provided
in C.R.C.P. 79(a). . . . The effective date of
entry of judgment shall be the actual date of
the signing of the written judgment. The
notation in the register of actions shall show
the effective date of the judgment.

C.R.C.P. 79(a)(4) provides, “The notation of an order, or of the entry

of judgment, shall show the date the order or judgment was ordered

in open court, in chambers, or under the provisions of Rule 55

regarding default.” C.R.C.P. 79(d) requires that the district court

clerk “keep a judgment record in which a notation shall be made of

every money judgment.”

¶ 15 The court of appeals has jurisdiction over appeals from final

judgments of the district courts. § 13-4-102(1), C.R.S. 2024. “[A]

final judgment is ‘one that ends the particular action in which it is

entered, leaving nothing further for the court pronouncing it to do

in order to completely determine the rights of the parties involved in

the proceedings.’” Chavez v. Chavez, 2020 COA 70, ¶ 24 (quoting

People v. G.S., 2018 CO 31, ¶ 37). In other words, a final judgment

is one that fully resolves liability and reduces damages (including

prejudgment interest) to a sum certain. Stone Grp. Holdings, ¶ 18.

7
Prejudgment interest is reduced to a sum certain if it is easily

calculable from the face of the judgment. Id. at ¶ 25.

¶ 16 The notice of appeal must be filed with the appellate court

within forty-nine days after entry of the judgment or order being

appealed. C.A.R. 4(a)(1). Rule 4 also provides that “[a] judgment or

order is entered within the meaning of section (a)(1) and (a)(4) when

it is entered pursuant to C.R.C.P. 58,” and the time for the filing of

the notice of appeal runs from the date of the mailing or electronic

service of the notice of the entry of the judgment or order. C.A.R.

4(a)(5).

B. Analysis

¶ 17 The core issue is whether the June order was a final and

appealable judgment. The order fully resolved liability. It reduced

the jury’s damage award to a sum certain. And it stated that

prejudgment interest would run from the date of the incident and

be calculated at 9% per annum. In other words, the prejudgment

interest could be calculated from the face of the order. Thus, the

June order met all the criteria of a final and appealable judgment.

¶ 18 Harris contends otherwise. As noted, Harris points out that

the order did not state that judgment entered on that date; did not

8
reference C.R.C.P. 58; said “so ordered” as opposed to “judgment

enters”; and used the future tense, “judgment shall enter,” without

specifying a date. Further, the court ordered him to prepare a

“proposed order of judgment consistent with the court’s findings”

within fourteen days. Finally, Harris relies on the fact that the

court clerk did not enter the June order in the register of actions as

a judgment on that date.

¶ 19 Though true, none of these facts negates the finality of the

June order. C.R.C.P. 58 does not require a judgment to explicitly

invoke the rule itself, nor does it require any other particular

language — and Harris points us to no authority that does. To the

contrary, “[i]n determining whether an order is final, we look to the

legal effect of the order rather than its form.” Luster v. Brinkman,

250 P.3d 664, 666 (Colo. App. 2010). Nor is “judgment shall enter”

necessarily a use of future tense. Indeed, while that language could

be described as stilted legalese and a bit arcane, such language is

commonly used at the time judgment is entered by trial courts

throughout the state without precluding finality. See, e.g., In re

Parental Responsibilities Concerning M.B-M., 252 P.3d 506, 508-09

(Colo. App. 2011) (holding that the magistrate’s signed minute order

9
saying, “[J]udgment shall enter” . . . in the amount of $1,500,” was

a final order that the magistrate lacked authority to alter with later

ruling). Reading the court’s language in this light, we disagree with

Harris’s contention that the order did not state that judgment

entered.4

¶ 20 We acknowledge that the trial court created some confusion by

asking Harris to prepare an unnecessary “proposed order of

judgment consistent with the court’s findings.” But a superfluous

order, even it titled “final judgment,” does not abrogate the finality

or appealability of a proper final judgment already entered. See

Stone Grp. Holdings, ¶ 37 (concluding that order that reduced

sanctions amount to a sum certain was the final order and

subsequent order entering “final judgment” was superfluous).

¶ 21 Finally, Rule 58(a) provides that the effective date is

determined by the date the written judgment is signed, and then

that date shall be entered in the register of actions. It does not

4 In light of our conclusion that the language of the June order

satisfied all the elements of a judgment, we necessarily reject
Harris’s claim that E-Service of the June order on the parties (which
the judicial department’s case management system reflects
occurred the day the order was entered) was not sufficient to trigger
C.A.R. 4(a)(5)’s forty-nine-day clock for filing the notice of appeal.

10
work in the other direction. In other words, the date of the

judgment entered in the register of actions does not determine the

date of finality. Indeed, if an administrative failure to enter the

judgment in the register of actions defeated finality, a party could

be deprived of the opportunity to appeal merely because this purely

ministerial task was not completed.

¶ 22 In sum, the June order was a final and appealable judgment.

But that does not end our inquiry. Upon a showing of excusable

neglect, we may extend the time for filing a notice of appeal by up to

thirty-five days. C.A.R. 4(a)(4). “Excusable neglect involves a

situation where the failure to act results from circumstances which

would cause a reasonably careful person to neglect a duty.”

Farmers Ins. Grp. v. Dist. Ct., 507 P.2d 865, 867 (Colo. 1973).

¶ 23 Here, we conclude the trial court’s actions created sufficient

confusion about the effect of the June order and the timing for filing

an appeal such that a reasonably careful lawyer may nevertheless

have been misled. Specifically, though there was no reason to do

so, the court instructed counsel to prepare and submit a revised

proposed order that would contain nothing more than what the

court had just announced. Thus, it was reasonable for counsel to

11
believe that the order left something more to do, notwithstanding

the fact that the June order met all the requirements of a final and

appealable judgment. That confusion was then exacerbated by the

court’s purporting to enter judgment on a later date and by the

court clerk’s incorrectly indicating the date of judgment in the

register of actions.

¶ 24 Thus, while in general “counsel has the obligation to

determine in the first instance whether there is a final, appealable

order, and should make that determination in a diligent and

informed manner,” Chavez, ¶ 36, the fact that counsel did not do so

here is understandable. We therefore conclude that counsel’s

neglect in failing to file a timely appeal was excusable. And because

the appeal was filed within the additional thirty-five days permitted

under C.A.R. 4(a)(4), we exercise our discretion to extend the

deadline for filing to the date the appeal was filed. Accordingly, we

have jurisdiction over the appeal.

III. The Merits

¶ 25 Turning to the merits of the appeal, Harris asserts two claims.

First, he argues that the trial court erred by treating the employers

as a single entity when applying the statutory cap on damages.

12
Second, he contends that the trial court erroneously denied his

request to amend the complaint to assert claims for exemplary

damages against defendants. We address each issue in turn.

A. Treating the Employers as a Single Entity

¶ 26 We conclude that Harris waived any challenge to treating

Premier and Lincare as a single entity in this case.

1. Additional Background

¶ 27 Before trial, Harris moved for partial summary judgment,

arguing that it was undisputed that, in addition to Premier, Lincare

was also Stallings’s employer. In response to the motion, the

employers denied that Lincare was Stallings’s employer. But the

employers also recognized that the business relationship between

Lincare and Premier may be confusing to the jury and stated that

they were willing to stipulate that Premier and Lincare could be

considered “one in the same.”

¶ 28 Harris replied, opposing this language and proposing his own:

“On July 23, 2018, Premier Medical Corporation and RCS

Management Holding Company were acquired by Lincare Holdings,

Inc. After the acquisition, each entity had the right to control Mr.

Stallings’s work. The parties agree that the entities are each

13
considered Mr. Stallings’s employers for purposes of this case.” In

addition to other reasons, Harris contended that this language

would reduce jury confusion and allow the parties to “separately

address” issues regarding the apportionment of liability and

application of Colorado’s noneconomic damages cap under sections

13-21-111.6, C.R.S. 2024, and 13-21-102.5. The court concluded

that there was a genuine dispute of material fact about who

Stallings’s employers were but nevertheless adopted the employers’

proposed language.5

¶ 29 Harris filed proposed jury instructions, with special verdict

forms, treating Lincare and Premier as two distinct defendants and

asking the jury to apportion damages amongst (1) Stallings;

(2) Premier; and (3) Lincare.

¶ 30 At trial, the court stated that it was redoing the jury

instructions and verdict form. The court said, “I don’t know how

you want to list the companies. They shouldn’t be listed separately.

They should be, like Lincare/Premier Medical. I want to make it

5 Notwithstanding the fact that the employers’ language was a

unilateral suggestion to which Harris objected and offered opposing
language, the trial court characterized its ruling as “adopt[ing] that
stipulation.”

14
like, something like that.” Harris’s counsel responded, “You read

our minds, your Honor, because we just agreed on that.”

¶ 31 The next day, the court provided the parties with proposed

instructions. The instructions repeatedly referred to “Defendant

Premier Medical Corporation/Lincare Holdings, Inc.,” and stated

“both of the defendants Dustin Stallings and Premier Medical

Corporation/Lincare Holdings, Inc.” The instructions also asked

the jury to determine the total amount of damages and what

percent of damages were caused by the negligence or fault of

“Defendant Dustin Stallings for his driving” and of “Defendant

Premier Medical Corporation/Lincare Holdings, Inc. for its training

and/or supervision of Dustin Stallings.”

¶ 32 The court asked Harris’s counsel if he wanted to make a

record regarding the proposed instructions. Harris’s counsel

stated, “[W]e reviewed the instructions you e-mailed, and we do not

object to any of the instructions you proposed giving.”

2. Analysis

¶ 33 Defendants argue that Harris invited the error and thus

cannot raise it on appeal. We disagree that Harris invited any error.

He never asked for the two companies to be treated as a single

15
entity and objected to the language the trial court adopted as a

mischaracterized “stipulation.” Thus, it simply cannot be said that

Harris “injected into the case” any error in this regard. See

Blakeland Drive Invs., LLP IV v. Taghavi, 2023 COA 30M, ¶ 52.

¶ 34 However, Harris waived his right to complain about the error.6

¶ 35 When “the trial court requests input from the parties on the

proposed instructions, and a party affirms that it has no objections

to any of them, the party waives any claim of error based on the

instructions.” Hendricks v. Allied Waste Transp., Inc., 2012 COA

88, ¶ 31.

¶ 36 Harris’s counsel agreed to the instruction and the verdict form

proposed by the court treating Premier and Lincare as one entity.

This instruction and verdict form explicitly asked the jury to

allocate damages between only Stallings and the employers; the

jury was never asked to allocate the percentage of responsibility

between Premier and Lincare. By not objecting to the instruction or

6 Although the employers do not argue waiver, we have an

affirmative, independent obligation to determine whether a claim of
error was preserved. See Gomez v. Walker, 2023 COA 79, ¶ 25 n.6.

16
the verdict form, Harris waived any appellate challenge to the issue

of treating the employers as a single entity. See id. at ¶ 32.

¶ 37 “[W]aiver extinguishes error, and therefore appellate

review . . . .” People v. Rediger, 2018 CO 32, ¶ 40. Because he

waived this issue, Harris cannot now argue that the trial court

erred by not treating Premier and Lincare as two distinct entities

when applying the damages cap in section 13-21-102.5(3)(a). See

Gen. Elec. Co. v. Niemet, 866 P.2d 1361, 1362 (Colo. 1994) (holding

that the cap in section 13-21-102.5 applies to the liability share of

each defendant in a case). We thus decline to address this

argument further.

B. Request to Add Exemplary Damages Claims

¶ 38 Harris next contends that the trial court erred by denying his

motion for leave to amend his complaint to add exemplary damages

claims. We agree.

1. Additional Background

¶ 39 Harris filed a motion for leave to amend the complaint to add

claims for exemplary damages under section 13-21-102, C.R.S.

2024. He alleged that his injury was attended by circumstances of

fraud because Stallings testified that he did not receive any training

17
from the employers after his initial onboarding; however, the

training logs showed that Stallings had completed additional

training, and Premier testified that those logs were accurate and

that Stallings had completed numerous training courses during his

employment. He argued that based on this contradictory evidence,

either Stallings lied to his employers about his level of training, or

the employers committed fraud by falsifying a record of Stallings’s

training history.

¶ 40 Harris further alleged that Stallings acted willfully and

wantonly by failing to take an alcohol or controlled substance

screening test within the time required by the employers’ policies

and federal regulations. Harris argued that this would support an

inference that Stallings must have been intoxicated at the time of

the incident.

¶ 41 Harris also alleged that the employers’ conduct was willful and

wanton because they knew Stallings was an unsafe driver.

Specifically, Harris claimed that Premier knew of a prior accident in

which Stallings was following the car in front of him too closely and

was distracted by his cell phone, yet the company took no action in

response to this accident. He alleges that Premier obtained

18
Stallings’s driving record twice and that both times it stated, “MVR

NOT CLEAR,” but the company took no action. And he alleges that

Premier did not report the earlier accident (because it did not

appear on Stallings’s driving records) and that this failure to report

prevented Lincare from learning about the accident.

¶ 42 Finally, he alleged the employers required Stallings to work an

illegal schedule leading up to this incident in violation of federal

law.

¶ 43 Harris later supplemented his motion with an internal email

between Lincare’s Safety Administrator for Vehicle Accidents and

Stallings’s supervisor, in which the supervisor was told, “We can’t

con[ti]nue to put the Public or Lincare in Harm’s way by our

driver[’]s reckless behavior and driving habits.” Harris also

included a monthly report, which provided insight into Stallings’s

driving habits during the month of the incident, including that he

harshly cornered 119 times.

¶ 44 Defendants objected to Harris’s request to add exemplary

damages claims. As to Stallings’s training records, they pointed to

contrary evidence, including deposition testimony that Stallings did

not recall if he took certain trainings, documents that showed

19
Stallings did take those trainings, documents showing Stallings

filled out an accident report after the prior incident and was

assigned and completed additional training, logs showing the

number of hours Stallings worked leading up to the incident, and

documents showing how much vacation Stallings took leading up to

the incident. Defendants also contended that Harris miscited the

employers’ policies and federal regulations.

¶ 45 The trial court denied the motion, finding that

Plaintiff has shown no prima facie evidence to
support adding a claim for exemplary
damages. Plaintiff has not established facts in
which “the injury complained of is attended by
circumstances of fraud, malice, or willful and
wanton conduct.” C.R.S. § 13-21-102(1)(a).
Plaintiff solely offers argument and speculation
to support its position. That is insufficient.
Therefore, the Court denies the motion on
those grounds alone.

2. Standard of Review and Applicable Law

¶ 46 “The question of whether the plaintiff has established

sufficient proof to add a claim for exemplary damages lies within

the sound discretion of the trial court.” Stamp v. Vail Corp., 172

P.3d 437, 449 (Colo. 2007). The trial court’s ruling will not be

disturbed unless we determine that the trial court abused its

20
discretion. Id. “A court abuses its discretion when its ruling is

manifestly arbitrary, unreasonable, unfair, or is based on a

misapprehension or misapplication of the law.” In re Estate of

Chavez, 2022 COA 89M, ¶ 19. “A trial court necessarily abuses its

discretion if its ruling is based on an incorrect legal standard.

Whether the trial court applied the correct legal standard is a

question of law we review de novo.” Sunahara v. State Farm Mut.

Auto. Ins. Co., 2012 CO 30M, ¶ 12.

¶ 47 “Prima facie proof of a triable issue of exemplary damages is

established by ‘a showing of a reasonable likelihood that the issue

will ultimately be submitted to the jury for resolution.’” Stamp, 172

P.3d at 449 (quoting Leidholt v. Dist. Ct., 619 P.2d 768, 771 n.3

(Colo. 1980)). “Such proof may be established through discovery,

by evidentiary means, or by an offer of proof.” Id. “Prima facie

evidence is evidence that, unless rebutted, is sufficient to establish

a fact.” Id. The “prima facie proof” requirement is a “lenient

standard.” Id. at 450. In assessing whether the requisite prima

facie showing has been made, we view the evidence in the light most

favorable to the moving party to determine whether a reasonable

fact finder could find for the moving party. Cf. Boryla v. Pash, 960

21
P.2d 123, 126-27 (Colo. 1998) (in assessing whether a party has

made out a prima facie case sufficient to withstand a motion for

directed verdict, the court considers all of the facts in the light most

favorable to the nonmoving party to determine whether a

reasonable jury could have found in its favor).

¶ 48 When actual damages are assessed by a jury, the jury may

also award reasonable exemplary damages “for a wrong done to the

person or to personal or real property” if the injury is “attended by

circumstances of fraud, malice, or willful and wanton conduct.”

§ 13-21-102(1)(a). “[W]illful and wanton conduct” is conduct that is

“purposefully committed which the actor must have realized as

dangerous, done heedlessly and recklessly, without regard to

consequences, or of the rights and safety of others, particularly the

plaintiff.” § 13-21-102(1)(b).

¶ 49 “The injured party need prove only ‘circumstances of fraud’

surrounding a tortious act resulting in damages.” Amber Props.,

Ltd. v. Howard Elec. & Mech. Co., 775 P.2d 43, 46 (Colo. App. 1988).

“The elements of ‘circumstances of fraud’ are identical with the

necessary elements of fraud.” Id. (citing Palmer v. A.H. Robins Co.,

684 P.2d 187 (Colo. 1984)). “Fraud generally consists of a false

22
representation of a material existing fact, made with knowledge or

utter disregard of its falsity, with the intent to induce another to

rely upon the representation and to take detrimental action

thereon.” Palmer, 684 P.2d at 214-15.

3. Analysis

¶ 50 When requesting permission to add exemplary damages

claims, Harris submitted deposition testimony and documents,

including emails and driving data reports. He alleged specific facts

that, if true, could support inferences of fraudulent acts and willful

and wanton behavior.

¶ 51 The trial court recognized that prima facie proof of a triable

issue of exemplary damages can be established through discovery,

by evidentiary means, or by an offer of proof showing a reasonable

likelihood that the issue will ultimately be submitted to the jury for

resolution. The court also stated that the evidence must be viewed

in the light most favorable to Harris and that the standard for

establishing a prima facie case is lenient.

¶ 52 Yet, notwithstanding its correct recitation of the analytical

rubric, the trial court concluded that Harris solely offered argument

and speculation to support his position. The court denied the

23
motion “on those grounds alone.”7 In doing so, the court did not

apply the lenient standard it had just recited. Moreover, in order to

reach that conclusion, the trial court necessarily conducted some

level of factfinding and resolved conflicts in the evidence to conclude

that Harris’s position was speculative. Cf. Boryla, 960 P.2d at

126-27. This is a misapplication of the legal standard.

¶ 53 Contrary to the trial court’s analysis, Harris presented

sufficient evidence to establish “a reasonable likelihood that the

issue w[ould] ultimately be submitted to the jury for resolution.”

Stamp, 172 P.3d at 449 (quoting Leidholt, 619 P.2d at 771 n.3).8

Thus, the trial court should have granted Harris’s motion to amend

the complaint to add exemplary damages claims against Stallings

and the employers and to allow the jury to resolve the competing

evidence and inferences therefrom. We thus remand for a trial

7 Defendants argued that Harris’s motion for leave to amend the

complaint was filed after the deadline for such motions established
in the case management order. Harris had acknowledged that fact
in his motion but asserted that the tardiness was created by
defendants’ numerous delays in complying with discovery. The
court did not consider the motion untimely, noting that the trial
had been reset, and thus, “untimeliness [wa]s no longer a factor.”
8 We, of course, express no opinion on whether Harris’s claim for

exemplary damages will ultimately be successful.

24
solely on the exemplary damages claims. See Amber Props., Ltd.,

775 P.2d at 47.

IV. Disposition

¶ 54 The judgment for actual damages is affirmed. The order

denying Harris’s motion to amend the complaint to add exemplary

damages claims is reversed. The matter is remanded with

instructions (1) to amend the register of actions to reflect entry of

the actual damages judgment on June 27, 2024; and (2) to conduct

a trial on Harris’s claims for exemplary damages only. At trial, the

court shall advise the jury about the nature of Harris’s claims; that

the liability of Stallings and the employers pursuant to those

claims, including the pro rata allocation of fault, has been

determined; and that actual damages have been awarded on each of

the claims, including the amount of each award, and it shall

instruct the jurors only on the law relating to the issues concerning

exemplary damages.

JUDGE YUN and JUDGE SULLIVAN concur.

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