     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                            January 16, 2020

                                2020COA10

No. 18CA2098, Spiremedia v. Wozniak — Civil Procedure —
Default — District Court Practice Standards — Default
Judgments

     A division of the court of appeals considers whether, when a

district court denies a motion for default judgment for failure to

comply with C.R.C.P. 55 and 121, section 1–14, the court is

required to explain the basis for its denial. The division concludes

that Rule 121, section 1-14(2), requires the court to provide the

parties with a sufficient explanation to afford the moving party an

opportunity to identify and correct the deficiency, if it can.

     The appellant filed two motions for default judgment, both of

which the district court denied for not complying with the

requirements listed in Rule 121, section 1-14. When it denied both

motions, the district court did not provide any explanation as to
how the motions failed to satisfy section 1-14. Further, when the

court denied the second motion for default judgment, it also

dismissed the case for violation of the court’s delay reduction order.

     After reviewing the second motion, the division concludes that

the motions were deficient. However, the division also concludes

that the district court was obligated to provide an explanation as to

how the motions failed to meet the requirements of Rule 121,

section 1-14. Under Rule 121, section 1-14(2), when a court

reviews a motion for default judgment, “[i]f further documentation,

proof or hearing is required, the court shall so notify the moving

party.” The division concludes that, under this rule, a court is

obligated to provide some explanation of how a motion for default

judgment is deficient such that a party can identify and attempt to

correct the deficiencies before the case is dismissed.

     Because the district court didn’t adequately articulate its basis

for denying the motion for default judgment before dismissing the

case, the division reverses the judgment and remands the case for

further proceedings
COLORADO COURT OF APPEALS                                        2020COA10


Court of Appeals No. 18CA2098
City and County of Denver District Court No. 18CV30504
Honorable Brian R. Whitney, Judge


Spiremedia Inc., d/b/a Spire Digital,

Plaintiff-Appellant,

v.

Timothy Richard Wozniak, a/k/a Timmy Wozniak,

Defendant-Appellee.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                  Division VI
                         Opinion by JUDGE WELLING
                         Terry and Berger, JJ., concur

                         Announced January 16, 2020


Bighorn Legal, Jonathan Hagn, Englewood, Colorado, for Plaintiff-Appellant

No Appearance for Defendant-Appellee
¶1    Spiremedia Inc. appeals the district court’s order denying its

 motion for default judgment and dismissing the case for violation of

 the district court’s delay reduction order (DRO).

¶2    This case raises an issue of first impression: What is a court

 required to tell a party when it denies a motion for default judgment

 pursuant to C.R.C.P. 55(b) and 121, section 1-14, and dismisses a

 case for failure to comply with the rules? We conclude that a court

 is required to identify the deficiencies in the motion that supports

 its decision, particularly before taking the extraordinary step of

 dismissing the case. Such an explanation provides a party an

 opportunity to remedy the deficiencies in its motion. Because the

 court here didn’t adequately articulate its basis for denying the

 motion for default judgment before dismissing the case, we reverse

 the judgment and remand the case for further proceedings.

                           I.    Background

¶3    On February 8, 2018, Spiremedia filed its complaint against

 Timothy Richard Wozniak for breach of contract and treble damages

 for a dishonored check pursuant to section 13–21–109(2), C.R.S.

 2019. Four days later, the district court issued a DRO, stating that

 “application for entry of default under C.R.C.P. 55(a) must be filed


                                    1
 within 14 days after default has occurred. . . . Motions for entry of

 default judgment must comply with C.R.C.P. 121, § 1-14.” The

 DRO also warned (in bold and all capital letters) that “IF AN

 ATTORNEY OR PRO SE PARTY FAILS TO COMPLY WITH THIS

 ORDER, THE COURT MAY DISMISS THE CASE WITHOUT

 PREJUDICE.”

¶4    On May 8, 2018, Spiremedia filed an affidavit of service

 attesting that Wozniak was served outside of Colorado on May 6,

 2018. (Under C.R.C.P. 12(a)(2), a defendant served outside of

 Colorado has thirty-five days from the date of service to file an

 answer or other initial response.) Thus, Wozniak had until June

 10, 2018, to respond to the complaint. By June 15, 2018, however,

 Wozniak had not filed any responsive pleadings or motion to

 dismiss, so Spiremedia filed a motion for default judgment under

 C.R.C.P. 55.

¶5    On July 11, 2018, the district court denied Spiremedia’s

 motion for default judgment, stating only: “A motion for default

 judgment must comport with the requirements of C.R.C.P. 121, § 1-

 14. The Motion as filed does not do so, and is therefore presented

 in an improper format. Accordingly, the Motion is DENIED.” The


                                    2
 court did not provide any explanation of those purported

 deficiencies.

¶6    Two days later, Spiremedia, apparently uncertain was

 deficienct about its first motion — but suspecting it may have been

 a failure to include an affidavit stating Wozniak is not a minor,

 incompetent, or a servicemember, see C.R.C.P. 121, § 1-14(1)(c) —

 refiled the motion for default judgment, this time adding what it

 referred to as an “affidavit equivalent” pursuant to the Uniform

 Unsworn Declarations Act (UUDA), § 13–27–104(1), C.R.S. 2019,

 averring compliance with C.R.C.P. 121, section 1-14(1)(c).

¶7    On September 10, 2018, the district court ruled on

 Spiremedia’s second motion for default judgment as follows:

            Plaintiff previously filed a motion for default
            judgment on June 15, 2018. That motion was
            denied for failure to comport with the
            requirements of C.R.C.P. 121 § 1-14. The
            current Motion is substantially identical to
            that motion, with the addition of a[n]
            unnotarized affidavit regarding Defendant’s
            servicemember status. Thus, as with the prior
            motion, this Motion does not comport with
            C.R.C.P. 121 § 1-14, and is therefore presented
            in an improper format. Accordingly, the
            Motion is DENIED. Furthermore, because
            Plaintiff has twice filed the Motion in an
            improper format, Plaintiff is in violation of this



                                    3
            Court’s Delay Reduction Order. The action is
            accordingly DISMISSED.

 We will refer to this order as the Dismissal Order.

¶8    On September 19, 2018, Spiremedia filed a motion for

 reconsideration of the Dismissal Order. It asserted that, after a

 review of the requirements for a motion for default judgment listed

 in C.R.C.P. 121, section 1-14, it was “unable to discern any

 substantive defect in the papers already filed with the Court.” And

 it told the court that, even if there was a defect, the court “has still

 never notified [Spiremedia] as to what ‘further documentation,

 proof, or hearing is required’ to resolve the Motion . . . .” (Quoting

 C.R.C.P. 121, § 1-14(2).) Thus, Spiremedia contended, the district

 court should vacate its order dismissing the case and either enter

 default judgment in its favor or “notify [Spiremedia] and its counsel

 as to the specific defect(s) with the Motion [for default judgment]

 under C.R.C.P. 121[,] § 1-14.”

¶9    On October 11, 2018, the district court denied Spiremedia’s

 motion to reconsider. In its order, the district court said, without

 further explanation, that “[t]he supporting documents for both prior




                                     4
  motions were wholly incomplete for the purposes of default

  judgment, sworn or not.”

                              II.   Analysis

¶ 10   Spiremedia appeals both the Dismissal Order and the order

  denying its motion for reconsideration, raising two contentions.

  First, it asserts that the district court erred by denying its second

  motion for default judgment because it complied with C.R.C.P. 121,

  section 1-14. Second, Spiremedia asserts that, even if its second

  motion for default judgment was deficient, the district court erred

  by failing to notify Spiremedia as to what further documentation or

  proof was required for the motion to comply with the rules. While

  we disagree with Spiremedia’s first contention — that its second

  motion for default judgment complied with C.R.C.P. 121, section 1-

  14 — we are persuaded by its second contention. Accordingly, we

  reverse the Dismissal Order and remand the case with instructions

  for the court to provide further explanation for the denial of the

  motion such that Spiremedia may, if possible, remedy the

  deficiencies.




                                     5
                       A.    Appellate Jurisdiction

¶ 11   Before reaching Spiremedia’s contentions, we must first

  consider our jurisdiction over this appeal, on our own accord if

  necessary. See Allison v. Engel, 2017 COA 43, ¶ 22 (“We must

  determine independently our jurisdiction over an appeal, nostra

  sponte if necessary.” (first citing People v. S.X.G., 2012 CO 5, ¶ 9;

  then citing Meridian Ranch Metro. Dist. v. Colo. Ground Water

  Comm’n, 240 P.3d 382, 385 (Colo. App. 2009))). At issue in this

  appeal are both finality and timeliness. We address each in turn.

                               1.   Finality

¶ 12   With some exceptions not relevant here, we have jurisdiction

  only over appeals from final judgments. § 13–4–102(1), C.R.S.

  2019; C.A.R. 1(a). Generally, “an order of dismissal without

  prejudice is not a final judgment” subject to appeal. SMLL, L.L.C. v.

  Daly, 128 P.3d 266, 268–69 (Colo. App. 2005).

¶ 13   The district court’s Dismissal Order was silent as to whether

  the case was being dismissed with or without prejudice. Under

  C.R.C.P. 41(b)(3), “orders that do not so specify [whether the

  dismissal is with or without prejudice] shall be deemed motions for

  dismissal without prejudice . . . .” And, under C.R.C.P. 121, section


                                     6
  1-10(5), which provides the steps required for dismissal of an action

  under C.R.C.P. 41(b), “[a]ny dismissal under this rule shall be

  without prejudice unless otherwise specified by the court.”

  (Emphasis added.) See also C.R.C.P. 41(b)(2) (requiring that orders

  of dismissal under this rule must comport with the requirements in

  C.R.C.P. 121, section 1-10). Further, the district court dismissed

  the case for noncompliance with the DRO, which provided that “if

  an attorney . . . fails to comply with this order, the court may

  dismiss the case without prejudice.” (Emphasis added.)

  Accordingly, though the Dismissal Order itself is silent, we conclude

  that it dismissed the case without prejudice.

¶ 14   Notwithstanding the general rule discussed above, a dismissal

  without prejudice is a final judgment if the statute of limitations

  period has expired or the dismissal otherwise results in prohibiting

  further proceedings. See SMLL, L.L.C., 128 P.3d at 268–69; see also

  Golden Lodge No. 13, I.O.O.F. v. Easley, 916 P.2d 666, 667 (Colo.

  App. 1996); Wyler/Pebble Creek Ranch v. Colo. Bd. of Assessment

  Appeals, 883 P.2d 597, 599 (Colo. App. 1994).

¶ 15   We conclude the Dismissal Order is a final, appealable order

  because the statute of limitations has run. Spiremedia filed suit for


                                     7
  breach of contract and treble damages under section 13–21–109(2).

  The latter claim has a statute of limitations of two years from the

  date the cause of action accrues. § 13–80–102(1)(k), C.R.S. 2019.

  In its complaint, Spiremedia alleged that the statutory violation

  occurred on or around February 12, 2016, when Wozniak’s check

  was allegedly dishonored. Thus, the statute of limitations on

  Spiremedia’s statutory claim had run by February 12, 2018, just

  four days after the complaint was filed. And by the time the district

  court denied the motion for default judgment the second time and

  dismissed the action on September 10, 2018, the statute of

  limitations period for Spiremedia’s statutory claim had expired

  nearly seven months earlier. Accordingly, the judgment was final

  for purposes of appeal. See, e.g., SMLL, L.L.C., 128 P.3d at 268–69.

                             2.    Timeliness

¶ 16   Under Colorado Appellate Rule 4(a), a notice of appeal in a

  civil case must “be filed with the appellate court . . . within 49 days

  of the date of the entry of the judgment, decree, or order from which

  the party appeals.” However, the forty-nine-day period does not

  begin to run if a party timely files — that is, within fourteen days of

  the final judgment — a motion under C.R.C.P. 59. C.R.C.P.


                                     8
  59(a)(3), (4); C.A.R. 4(a). If a party files a timely Rule 59 motion, the

  time to file a notice of appeal will begin to run once the district

  court enters an order either granting or denying the motion under

  C.R.C.P. 59, or, if the court does not rule within sixty-three days of

  the motion being filed, upon the expiration of the sixty-three-day

  period. C.R.C.P. 59(j); C.A.R. 4(a).

¶ 17   Here, the court entered its Dismissal Order on September 10,

  2018. But the notice of appeal was not filed until November 5,

  2018 — fifty-six days after the entry of the Dismissal Order. This

  appeal would be untimely under C.A.R. 4(a) as to the Dismissal

  Order unless the “motion for reconsideration” filed on September

  19, 2018, was a motion under Rule 59. That is where we turn next.

¶ 18   Spiremedia’s motion for reconsideration did not cite or

  otherwise reference C.R.C.P. 59, and C.R.C.P. 59 itself does not

  mention “motions to reconsider.” See Stone v. People, 895 P.2d

  1154, 1155 (Colo. App. 1995) (“A motion to reconsider is not

  specifically delineated in C.R.C.P. 59 . . . .”). But C.R.C.P. 121,

  section 1-15(11), does reference “motions to reconsider other than

  those governed by C.R.C.P. 59 or 60” (emphasis added), implying

  that motions to reconsider may also be recognized under Rules 59


                                      9
  and 60. Further, divisions of this court have repeatedly held that

  “[a] motion to reconsider may be treated as a post-trial motion

  under C.R.C.P. 59.” Bailey v. Airgas-Intermountain, Inc., 250 P.3d

  746, 752–53 (Colo. App. 2010) (citing In re Petition of Taylor, 134

  P.3d 579, 582 (Colo. App. 2006)). Additionally, the relief requested

  in Spiremedia’s motion to reconsider fits squarely within Rule

  59(a)(3) and (4) — to amend the findings and final judgment.

  Accordingly, we conclude that Spiremedia’s motion to reconsider

  was a timely Rule 59 motion.

¶ 19   Therefore, Spiremedia’s time to appeal the Dismissal Order

  only began to run once the district court entered its order denying

  the motion for reconsideration on October 11, 2018. This order

  reset the deadline within which Spiremedia could appeal the

  Dismissal Order to the same date as the cut-off for appeal of the

  order denying the motion to reconsider — November 22, 2018.

  C.A.R. 4(a). Thus, Spiremedia’s notice of appeal filed on November

  5, 2018, was timely as to both orders.

¶ 20   Satisfied that we have jurisdiction, we now turn to the merits

  of Spiremedia’s contentions.




                                    10
                               B.    Merits

¶ 21   We review a district court’s interpretation of the Colorado

  Rules of Civil Procedure de novo. City & Cty. of Broomfield v.

  Farmers Reservoir & Irrigation Co., 239 P.3d 1270, 1275 (Colo.

  2010) (first citing People v. Shell, 148 P.3d 162, 178 (Colo. 2006);

  then citing Leaffer v. Zarlengo, 44 P.3d 1072, 1078 n.6 (Colo. 2002);

  and then citing Isis Litigation, L.L.C. v. Svensk Filmindustri, 170

  P.3d 742, 744 (Colo. App. 2007)). We use “commonly understood

  and accepted meaning[s]” of words to interpret the language of the

  Rules. Id.

¶ 22   Under C.R.C.P. 55(a), “[w]hen a party against whom a

  judgment for affirmative relief is sought has failed to plead or

  otherwise defend . . . and that fact is made to appear by affidavit or

  otherwise, the clerk shall enter his default.” The party entitled to

  default may then apply to the court for the entry of default

  judgment in its favor pursuant to C.R.C.P. 55(b).

¶ 23   C.R.C.P. 121, section 1-14 lists the documents that a moving

  party must include with a motion for default judgment. C.R.C.P.

  121, § 1-14(1)(a)–(g). Under this rule, the moving party must

  provide the court with the following:


                                    11
(a) The original summons showing valid service
on the particular defendant in accordance with
Rule 4, C.R.C.P.

(b) An affidavit stating facts showing that
venue of the action is proper. The affidavit
may be executed by the attorney for the
moving party.

(c) An affidavit or affidavits establishing that
the particular defendant is not a minor, an
incapacitated person, an officer or agency of
the State of Colorado, or in the military
service. The affidavit must be executed by the
attorney for the moving party on the basis of
reasonable inquiry.

(d) An affidavit or affidavits or exhibits
establishing the amount of damages and
interest, if any, for which judgment is being
sought. The affidavit may not be executed by
the attorney for the moving party. The
affidavit must be executed by a person with
knowledge of the damages and the basis
therefor.

(e) If attorney fees are requested, an affidavit
that the defendant agreed to pay attorney fees
or that they are provided by statute; that they
have been paid or incurred; and that they are
reasonable. The attorney for the moving party
may execute the affidavit setting forth those
matters listed in or required by Colorado Rule
of Professional Conduct 1.5.

(f) If the action is on a promissory note, the
original note shall be presented to the court in
order that the court may make a notation of
the judgment on the face of the note. If the


                       12
               note is to be withdrawn, a photocopy shall be
               substituted.

               (g) A proposed form of judgment . . . .

  C.R.C.P. 121, § 1-14(1); see also Tallman v. Aune, 2019 COA 12,

  ¶ 22.

¶ 24           If the district court finds, after reviewing the motion for

  default judgment, that “further documentation, proof or hearing is

  required, the court shall so notify the moving party.” C.R.C.P. 121,

  § 1-14(2).

   1.      Spiremedia’s Motions for Default Judgment Did Not Comply
                        With C.R.C.P. 121, Section 1-14

¶ 25      Spiremedia first asserts that the second motion for default

  judgment complied with the requirements of C.R.C.P. 121, section

  1-14. Spiremedia submitted its motion twice, with substantively

  the same documents except that the second motion included what

  it referred to as an “affidavit equivalent” pursuant to the UUDA

  attesting that Wozniak was not a minor, incompetent, or a

  servicemember to satisfy C.R.C.P. 121, section 1-14(1)(c). See § 13-

  27-104(1). Although Spiremedia speculated that the district court

  took issue with this affidavit substitute (and accordingly denied the

  motion for noncompliance with the rule’s affidavit requirement), the


                                       13
  district court’s order on the motion to reconsider seems to suggest

  some other defect because, in denying the motion to reconsider, the

  court said “both motions were wholly incomplete for the purposes of

  default judgment, sworn or not.” (Emphasis added.)

¶ 26   Though, as we will discuss below, the district court’s

  articulated rationale is lacking, we agree with the district court that

  both of Spiremedia’s motions for default judgment were deficient.

  After a cursory review of both motions, we have found that, at a

  minimum, the attorney fees request is deficient. Spiremedia’s

  attorney fees request was listed as a lump sum of $1980.00 without

  “setting forth those matters listed in or required by Colorado Rule of

  Professional Conduct 1.5.” C.R.C.P. 121, § 1-14(1)(e). Further, the

  attorney fees request is unsupported by an affidavit of counsel. Id.

  On this basis alone, we must disagree with Spiremedia’s contention

  that its motions were “wholly compliant with C.R.C.P. 121, section

  1-14,” and we need not decide whether there are further

  deficiencies. Accordingly, the district court did not err by

  concluding that the motions were deficient.

¶ 27   But before we move on to the next issue, we address an issue

  that is likely to arise on remand — namely, whether an unsworn


                                    14
  declaration that complies with the UUDA satisfies section 1-14’s

  affidavit requirements. In its second motion for default judgment,

  Spiremedia included an unsworn declaration attesting to certain

  matters required to be addressed by Rule 121, section 1-14. The

  unsworn declaration was not an affidavit, but it did comply with the

  UUDA, § 13-27-104. Although whether perceived noncompliance

  with section 1-14’s affidavit requirement contributed to the district

  court’s denial of Spiremedia’s motion for default judgment is

  unclear, because this question is likely to arise on remand, we

  address the issue of whether compliance with the UUDA satisfies

  the affidavit requirement of Rule 121, section 1-14. We conclude

  that it does. The UUDA provides that “if a law of this state requires

  or permits use of a sworn declaration in a court proceeding, an

  unsworn declaration meeting the requirements of [the UUDA] has

  the same effect as a sworn declaration.” § 13-27-104(1). This

  provision is subject to five enumerated exceptions, none of which

  applies to the motion for default judgment in this case. See § 13-

  27-104(2).

¶ 28   We now turn to the matter of how the district court explained

  its denials.


                                    15
   2.    The District Court Erred in Denying Spiremedia’s Motion for
           Default Judgment Twice Without Providing a Sufficient
          Rationale Such That Spiremedia Could Correct the Defects

¶ 29    Spiremedia’s second contention is that when a court denies a

  motion for default judgment, Rule 121, section 1-14(2) requires a

  court to explain how the motion was deficient and that the district

  court erred by failing to do so before dismissing the case. We agree.

¶ 30    Regardless of what deficiencies may be in a moving party’s

  motion for default judgment, under C.R.C.P. 121, section 1-14(2),

  “[i]f further documentation, proof or hearing is required, the court

  shall so notify the moving party.” To address Spiremedia’s

  contention, we must construe the meaning of “notify.”

¶ 31    C.R.C.P. 121, section 1-14 does not define “notify” or specify

  what is required for the notice to be adequate. But the 2006

  comment to C.R.C.P. 121, section 1-14, explaining the rationale for

  adopting the practice standard, provides guidance. It explains that,

  before the addition of this provision,

             [o]ne faced with the task of attempting to
             obtain a default judgment usually found
             themselves making several trips to the
             courthouse, numerous phone calls[,] and
             redoing needed documents several times. The
             Practice Standard is designed to minimize both
             court and attorney time.


                                    16
  (Emphasis added.)

¶ 32   The principal purpose of including granular detail in section 1-

  14 is to streamline the process of obtaining a default judgment.

  Section 1-14 does so by providing direction to and imposing

  obligations on both the parties and the court. On the one hand, the

  detailed requirements enumerated in section 1-14(1)(a) through (g)

  provide counsel or a pro se party with a meticulous procedure for

  assembling and filing a compliant motion for default judgment.

  Still, as any judicial officer who has presided over a civil docket for

  even a short time knows all too well, these itemized requirements do

  not always result in perfect compliance. So, to achieve the

  efficiencies envisioned in the comment to section 1-14, subsection

  (2), also requires the court to “so notify” a party of the reason or

  reasons it is denying a noncompliant motion for default judgment —

  not simply to notify the party of the fact of denial. And the need for

  an explanation is all the more acute when denial is accompanied by

  dismissal. Cf. Murray v. Bum Soo Kim, 2019 COA 163, ¶ 30 (Tow,

  J., specially concurring) (noting that when a district court

  summarily dismisses a case with little explanation of its rationale,

  “the chances of someone’s interests being adversely affected without


                                     17
  recourse are substantially increased”); Koh v. Kumar, 207 P.3d 900,

  901–02 (Colo. App. 2009) (“A court errs when it sua sponte

  dismisses a complaint without providing the parties with thirty days

  written notice and an opportunity to show cause in writing why the

  action should not be dismissed.” (first citing C.R.C.P. 41(b)(2); then

  citing C.R.C.P. 121, § 1-10(2))).

¶ 33   We don’t envision the requirement that notice under

  subsection 1-14(2) include an explanation will impose an

  appreciable additional burden on the district courts beyond that

  already borne. After all, the district court is already tasked with

  assessing on its own whether a motion for default judgment

  complies with subsection 1-14(1). Subsection 1-14(2) requires that

  the district court take just one more step: inform the parties of the

  defect that led it to deny the motion. This step ensures that the

  moving party has sufficient information to remedy the issue without

  engaging in a potentially fruitless guessing exercise — one that

  serves only to frustrate both the court and the moving party.

¶ 34   The bare-bones orders of the district court in this case

  resulted in the frustrating problem that section 1-14 sought to

  avoid — the moving party was left guessing as to the deficiencies in


                                      18
  its motions and it resubmitted documents in an (ultimately

  fruitless) attempt to finally get it right. Not only that, but the

  district court took the extraordinary step of dismissing the case

  with no mention of how Spiremedia went wrong.

¶ 35    Because we conclude that the court erred by dismissing the

  case without notifying Spiremedia of (and affording it the

  opportunity to correct) the deficiencies in its second motion for

  default judgment, we need not reach the issue whether the court

  abused its discretion by denying the motion to reconsider.

                             III.   Conclusion

¶ 36    For the reasons set forth above, we reverse the judgment of

  dismissal, reinstate the complaint, and remand with instructions

  for the district court to reconsider its denial of the motion for

  default judgment. If the court again denies the motion, it must

  explain why it does so — by citing to the subsection(s) of C.R.C.P.

  121, section 1-14(1) that the motion fails to satisfy — and give

  Spiremedia a reasonable opportunity to remedy any identified

  deficiencies, if it can.

        JUDGE TERRY and JUDGE BERGER concur.




                                     19
