     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
                                                                 April 2, 2020

                                2020COA60

No. 19CA0349, Credit Service Co. v. Skivington — Civil
Procedure — Defenses and Objections — Failure to State a
Claim Upon Which Relief Can be Granted

     A division of the court of appeals considers whether a party

may appeal a denial of a motion to dismiss for failure to state a

claim under C.R.C.P. 12(b)(5) once judgment has been entered

following a trial. The division concludes that after a trial on the

merits, an order denying a motion to dismiss for failure to state a

claim is not appealable.
COLORADO COURT OF APPEALS                                 2020COA60


Court of Appeals No. 19CA0349
El Paso County District Court No. 18CV31955
Honorable David A. Gilbert, Judge


Credit Service Company, Inc.,

Plaintiff-Appellee,

v.

Paul Skivington,

Defendant-Appellant.


                      JUDGMENT AND ORDER AFFIRMED

                                    Division V
                          Opinion by JUDGE J. JONES
                          Harris and Brown, JJ., concur

                            Announced April 2, 2020


No Appearance for Plaintiff-Appellee

Paul Skivington, Pro Se
¶1    Defendant, Paul Skivington, appeals the trial court’s judgment

 and its order denying his motion for new trial. We affirm. Among

 the issues we address is whether a party may appeal a denial of a

 motion to dismiss for failure to state a claim under C.R.C.P. 12(b)(5)

 once judgment has been entered following a trial. We hold that a

 party may not.

                           I.    Background

¶2    In early 2017, Mr. Skivington suffered a stroke. He went to a

 University of Colorado Health (UC Health) hospital for medical

 treatment. While there he signed an agreement, titled “Treatment

 Agreement and Conditions of Service,” providing that UC Health

 would treat him in exchange for his agreement to pay for that

 treatment. After treating Mr. Skivington, UC Health billed him

 $30,536.10 for its services. Mr. Skivington didn’t pay. UC Health

 then assigned his account to plaintiff, Credit Service Company, Inc.

 (CSC), a collection agency, to collect the debt.

¶3    CSC sued Mr. Skivington to recover the outstanding balance

 on his UC Health account. Mr. Skivington filed two C.R.C.P.

 12(b)(5) motions to dismiss the claims: in the first motion, he

 asserted that CSC’s complaint was invalid because CSC hadn’t filed


                                    1
 a response to Mr. Skivington’s answer to the complaint; and in the

 second motion, he argued, as now relevant, that (1) the evidence

 showed that UC Health treated not him, but a person named Paul

 Doe; and (2) CSC’s complaint failed to state a plausible claim for

 relief. The trial court denied both motions.

¶4    The case went to trial before the court on January 24, 2019,

 almost two years after the event. At the end of trial, the court ruled

 in CSC’s favor, finding that it had presented sufficient evidence

 linking Mr. Skivington to the debt owed to UC Health.

¶5    Two weeks later, Mr. Skivington filed a C.R.C.P. 59 motion for

 a new trial, which the trial court denied.

                            II.   Discussion

¶6    Mr. Skivington contends on appeal that the trial court erred by

 (1) denying his Rule 12(b)(5) motion to dismiss because CSC’s

 complaint failed to state a plausible claim; (2) admitting CSC’s

 Exhibits 2 and 4; and (3) denying his Rule 59 motion for a new trial.

 We address and reject each of these contentions in turn.

                   A.   Denial of Motion to Dismiss

¶7    Mr. Skivington first contends that the trial court erred by

 denying his Rule 12(b)(5) motion to dismiss for failure to state a


                                    2
 claim. But we conclude that the court’s denial of that motion isn’t

 reviewable.1

¶8    No published Colorado appellate court decision addresses

 specifically whether an order denying a motion to dismiss for failure

 to state a claim is reviewable after a trial on the merits. But the

 Colorado Supreme Court has addressed a similar issue — whether

 the denial of a motion for summary judgment is appealable after a

 trial. And it has held that such a denial isn’t reviewable, whether

 based on a question of law or the existence of disputed issues of

 material fact. Feiger, Collison & Killmer v. Jones, 926 P.2d 1244,

 1250 (Colo. 1996); Manuel v. Fort Collins Newspapers, Inc., 631 P.2d

 1114 (Colo. 1981).

¶9    As it has explained,

            [t]his holding comports with the purpose of a
            summary judgment motion — to expeditiously
            dispose of cases that can be decided without
            the expense and delay associated with trial at
            an early stage in the litigation. This objective
            is no longer achievable after a full trial on the
            merits. . . . In particular, foreclosing appellate
            review of a trial court’s determination that a

 1 And, in any event, we conclude that CSC’s complaint contains
 sufficient factual allegations that, if accepted as true, state a claim
 for relief that is plausible on its face. See Warne v. Hall, 2016 CO
 50, ¶ 1.

                                    3
             trial on the merits is warranted underscores
             the principle that a summary judgment motion
             appropriately is granted only in the clearest of
             circumstances and reinforces the
             understanding that the trial court is best-
             situated to render that determination in the
             first instance.

  Feiger, Collison & Killmer, 926 P.2d at 1250 (citations omitted).

¶ 10   Perhaps more importantly, appellate review of such an order

  “could lead to the absurd result” of depriving a prevailing party —

  “after a full trial and a more complete presentation of the evidence”

  — of its favorable verdict for its failure to prove its case earlier in

  the litigation. Manuel, 631 P.2d at 1117 (quoting Navajo Freight

  Lines, Inc. v. Liberty Mut. Ins. Co., 471 P.2d 309, 313 (Ariz. Ct. App.

  1970)). As a matter of fairness, therefore, “a final judgment should

  be tested upon the record as it exists at the time it is rendered,

  rather than at the time the motion for summary judgment is denied

  since further evidence may be supplied at trial.” Rick’s Pro Dive ’N

  Ski Shop, Inc. v. Jennings-Lemon, 803 S.W.2d 934, 935 (Ark. 1991).

¶ 11   Courts in other jurisdictions have held that the rationale for

  this rule “applies with equal force” to motions to dismiss for failure

  to state a claim. See, e.g., Nolfi v. Ohio Ky. Oil Corp., 675 F.3d 538,

  545 (6th Cir. 2012). We agree. After all, the purpose of a motion to


                                      4
dismiss for failure to state a claim “is to test the formal sufficiency

of the complaint” so as “to permit early dismissal of meritless

claims,” Dorman v. Petrol Aspen, Inc., 914 P.2d 909, 911, 915 (Colo.

1996), and that purpose is no longer achievable if the plaintiff

prevails after a full trial on the merits, Bennett v. Pippin, 74 F.3d

578, 585 (5th Cir. 1996). As well, “the sufficiency of the allegations

in the complaint [becomes] irrelevant” following the trial; the

plaintiff “has proved, not merely alleged, facts sufficient to support

relief.” Id. And relatedly,

           [t]he policy behind the Rules of Civil Procedure
           is to resolve controversies on the merits, not
           on technicalities of pleading. . . . This is
           especially true in light of the liberal pleading
           now allowed, the relatively free availability of
           amendments, and the affirmative duty of the
           opponent to object to evidence as outside the
           pleadings.

Concrete Serv. Corp. v. Inv’rs Grp., Inc., 340 S.E.2d 755, 758 (N.C.

Ct. App. 1986) (citation omitted). Indeed, “[t]he arguments for not

considering an appeal from a denial of a . . . dismissal [for failure to

state a claim] are stronger than those for not considering a refusal

to dismiss under Rule 56, given the ease with which a plaintiff may




                                    5
  amend a complaint after judgment in order to conform to the

  evidence.” Bennett, 74 F.3d at 585.

¶ 12   We therefore hold that a denial of a motion to dismiss for

  failure to state a claim isn’t reviewable on appeal following a trial on

  the merits. See also ClearOne Commc’ns, Inc. v. Biamp Sys., 653

  F.3d 1163, 1172 (10th Cir. 2011) (“[A]s a general rule, a defendant

  may not, after a plaintiff has prevailed at trial, appeal from the

  pretrial denial of a . . . motion to dismiss [for failure to state a

  claim], but must instead challenge the legal sufficiency of the

  plaintiff’s claim through a motion for judgment as a matter of law.”);

  Simon v. Jackson, 855 So. 2d 1026, 1030 (Ala. 2003) (the denial of a

  motion to dismiss for failure to state a claim is moot after a trial on

  the merits); Denali Real Estate, LLC v. Denali Custom Builders, Inc.,

  926 N.W.2d 610, 621 (Neb. 2019) (same); Raider Ranch, LP v.

  Lugano, Ltd., 579 S.W.3d 131, 133 (Tex. App. 2019) (the denial of

  motion to dismiss for failure to state a claim isn’t reviewable

  following a trial on the merits); cf. W. Fire Truck, Inc. v. Emergency

  One, Inc., 134 P.3d 570, 577 (Colo. App. 2006) (an order denying a

  motion for judgment on the pleadings isn’t reviewable on appeal). It




                                       6
  follows that we won’t consider Mr. Skivington’s challenge to the trial

  court’s denial of his Rule 12(b)(5) motion.

                   B.   Admission of Exhibits 2 and 4

¶ 13   During its case-in-chief, CSC introduced a document marked

  as Exhibit 2 to prove that UC Health correctly billed Mr. Skivington,

  and not some other patient, for the medical services it rendered in

  2017. Exhibit 2 is an internal UC Health document showing inputs

  of Mr. Skivington’s personally identifiable information, including his

  name, address, date of birth, and social security number. It shows

  that the hospital input information on three occasions: the first

  includes Mr. Skivington’s first name (Paul); the second includes his

  address and phone number; and the third includes his full name

  (Paul Skivington), date of birth, and social security number.

       Mr. Skivington objected to the admission of the exhibit

  because CSC had failed to disclose it to him before trial. CSC’s

  counsel acknowledged his failure to disclose Exhibit 2 previously

  but explained that CSC only sought to introduce the exhibit in

  “anticipation of Mr. Skivington’s defense of: I don’t know why I’m

  here.” The court considered Exhibit 2 as “[p]rophylactic rebuttal”

  evidence and admitted it over Mr. Skivington’s objection.


                                    7
¶ 14   CSC also introduced Exhibit 4, which is an itemization of UC

  Health’s charges. It appears that CSC introduced this exhibit to

  prove identity as well, and to prove the amount owed. Mr.

  Skivington didn’t object.

¶ 15   Mr. Skivington contends that the trial court erred by admitting

  Exhibit 2 because (1) CSC didn’t timely disclose it in accordance

  with C.R.C.P. 16.1(k)(6); and (2) it includes his personal identifying

  information, and so admitting it into evidence violated the Health

  Insurance Portability and Accountability Act (HIPAA) of 1996, 42

  U.S.C. §§ 1320d to 1320d-9 (2018). He contends that the court

  erred by admitting Exhibit 4 because it, too, contains his personal

  identifying information. These contentions fail.

                        1.    Standard of Review

¶ 16   We review a trial court’s evidentiary rulings for an abuse of

  discretion. Scholle v. Delta Air Lines, Inc., 2019 COA 81M, ¶ 16. A

  trial court abuses its discretion when its ruling is manifestly

  arbitrary, unreasonable, or unfair, or based on a misapplication or

  misunderstanding of the law. Bd. of Cty. Comm’rs v. DPG Farms,

  LLC, 2017 COA 83, ¶ 34.




                                     8
                              2.    Analysis

¶ 17   Rebuttal evidence “may take a variety of forms, including ‘any

  competent evidence which explains, refutes, counteracts, or

  disproves the evidence put on by the other party, even if the

  rebuttal evidence also tends to support the party’s case-in-chief.’”

  People v. Welsh, 80 P.3d 296, 304 (Colo. 2003) (quoting People v.

  Rowerdink, 756 P.2d 986, 994 (Colo. 1988)). The party offering

  rebuttal evidence must show that the evidence is relevant to rebut

  the adverse party’s claim, theory, witness, or other evidence. Id.

¶ 18   At trial, CSC’s counsel explained that CSC sought to introduce

  Exhibit 2 for the sole purpose of rebutting Mr. Skivington’s

  anticipated defense — that UC Health had mistakenly identified

  him as the patient who had received the medical services at issue.

  The trial court admitted Exhibit 2 for that limited purpose. And

  mistaken identity was, in fact, the defense Mr. Skivington raised

  after CSC’s case-in-chief. The exhibit therefore qualified as rebuttal

  evidence, admissible in the district court’s discretion.

¶ 19   Mr. Skivington’s position also rests on an overly restrictive

  interpretation of C.R.C.P. 16.1(k)(6). True, that rule requires parties

  to identify and exchange trial exhibits at least thirty-five days before


                                     9
  trial, and C.R.C.P. 16.1(k)(1)(A) requires that documents relevant to

  a party’s claims or defenses be included in a party’s initial

  disclosures. See also C.R.C.P. 26(a)(1)(B). But the supreme court

  has held that the sanction of evidence preclusion for a failure to

  disclose in accordance with such rules “is inappropriate if the

  lateness of the disclosure is harmless to the other party.” Todd v.

  Bear Valley Vill. Apartments, 980 P.2d 973, 979 (Colo. 1999). This

  is so even if the late disclosing party can’t show a substantial

  justification for the violation: even in such a case, “the inquiry is

  not whether the new evidence is potentially harmful to the opposing

  side’s case. Instead, the question is whether the failure to disclose

  the evidence in a timely fashion will prejudice the opposing party by

  denying that party an adequate opportunity to defend against the

  evidence.” Id.

¶ 20   Mr. Skivington hasn’t presented any coherent argument

  explaining how he was unfairly prejudiced by the admission of

  Exhibit 2. He had an adequate opportunity to respond to the

  exhibit at trial, and there was ample other evidence that he was the

  patient who had incurred the charges. And we can’t help but note

  that Mr. Skivington’s post-trial Rule 59(d) motion essentially


                                     10
  conceded that he was the patient who had been admitted to UC

  Health on the relevant date because of a stroke. See In re Marriage

  of Antuna, 8 P.3d 589, 593 (Colo. App. 2000) (no abuse of discretion

  in allowing rebuttal expert to testify despite claimed noncompliance

  with C.R.C.P. 26 disclosure requirement); Rice v. Dep’t of Corr., 950

  P.2d 676, 681 (Colo. App. 1997) (no abuse of discretion in allowing

  unendorsed witness to testify in rebuttal where other party failed to

  explain how he was prejudiced).

¶ 21   Mr. Skivington’s contention that the trial court violated HIPAA

  by admitting Exhibits 2 and 4 also fails. First off, he didn’t raise

  this issue with the trial court, and we don’t consider issues raised

  for the first time on appeal. See Estate of Stevenson v. Hollywood

  Bar & Cafe, Inc., 832 P.2d 718, 721 n.5 (Colo. 1992) (“Arguments

  never presented to, considered or ruled upon by a trial court may

  not be raised for the first time on appeal.”). But if HIPAA applies to

  any of the information in Exhibits 2 and 4, the proper remedy

  would have been to redact portions of the exhibits disclosing

  nonessential personal identifying information (or perhaps to receive

  the exhibits under seal), not to exclude the exhibits.




                                    11
                       C.    Motion for a New Trial

¶ 22   Mr. Skivington contends that the trial court erred by denying

  his motion for a new trial because (1) irregularities in the trial

  proceedings prevented him from having a fair trial and (2) he

  produced newly discovered evidence that he couldn’t have

  reasonably discovered before trial “that would change the result of

  the trial.” Again, we aren’t persuaded.

              1.    Standard of Review and Applicable Law

¶ 23   We review a trial court’s ruling on a Rule 59 motion for a new

  trial for an abuse of discretion. See Sch. Dist. No. 12 v. Sec. Life of

  Denver Ins. Co., 185 P.3d 781, 786 (Colo. 2008); Aspen Skiing Co. v.

  Peer, 804 P.2d 166, 172 (Colo. 1991). We won’t disturb the court’s

  ruling unless it was manifestly arbitrary, unreasonable, or unfair,

  or based on a misapplication or misunderstanding of the law. DPG

  Farms, ¶ 34.

¶ 24   As now relevant, under the rule, a trial court may grant a new

  trial on the grounds of “[a]ny irregularity in the proceedings by

  which any party was prevented from having a fair trial[,]” or “[n]ewly

  discovered evidence, material for the party making the application




                                     12
  which that party could not, with reasonable diligence, have

  discovered and produced at the trial[.]” C.R.C.P. 59(d)(1), (4).

                              2.    Analysis

               a.    Irregularities in the Trial Proceedings

¶ 25   Mr. Skivington argues that irregularities in trial proceedings

  prevented him from having a fair trial.

¶ 26   First, he argues that the trial court’s failure to allow him to

  respond to Exhibit 2 deprived him of a fair trial. But contrary to his

  contention, the trial court gave Mr. Skivington multiple chances to

  respond to Exhibit 2 at trial.

¶ 27   Second, he argues that the court shouldn’t have asked

  questions of CSC’s counsel concerning the admissibility of Exhibit

  2. But he didn’t raise this issue with the trial court, so we won’t

  address it. Estate of Stevenson, 832 P.2d at 721 n.5.

¶ 28   Third, he argues that the trial court rushed the trial, trying to

  get it done during a break in another trial. He doesn’t argue,

  however, that, as a result, he was unable to present any evidence

  he wished to introduce or to make any argument on the merits that

  he wished to make. He argues instead that “[t]his caused the trial

  court . . . to be preoccupied with other things and unable to give full


                                    13
  mindfulness to this case.” But the record doesn’t bear out this

  conclusory assertion.

                     b.   Newly Discovered Evidence

¶ 29   Mr. Skivington asserted in his Rule 59 motion for a new trial

  that his stroke had caused him to sustain long-term memory loss of

  the event, and that he had started to recover his lost memory two

  days after the trial. He argued that his recovered memory helped

  him gain access to his UC Health patient portal, which allowed him

  to locate a report from the attending physician who had treated him

  after his stroke. The portion of that report on which Mr. Skivington

  relies provides as follows:

             DATE OF ADMISSION:
             February 28, 2017

             DATE OF DISCHARGE:
             March 1, 2017

             HOSPITAL COURSE:
             The patient was admitted via the Mobile Stroke
             Unit with a stroke syndrome. Telestroke
             neurologists advised t-PA. The patient was
             administered t-PA. On arrival to the ICU, he
             complained of being sleep-deprived and
             checked out against medical advice.

¶ 30   Mr. Skivington argues that this “newly discovered” evidence,

  which he couldn’t have discovered before trial, would change the


                                   14
  result of the trial. He says that the report proves that he couldn’t

  have received medical services amounting to $30,536.10 because he

  discharged himself from the hospital immediately after arriving to

  the ICU. His argument fails procedurally and substantively.

¶ 31   After being served with the complaint, Mr. Skivington knew

  that CSC was suing him for his failure or refusal to pay for medical

  services that UC Health claimed it had provided to him. Had he

  acted prudently and diligently during the discovery phase of the

  case and requested any relevant documents UC Health may have

  had relating to the debt, he could have discovered the attending

  physician’s report well before trial. Indeed, he didn’t even need to

  contact UC Health to obtain the document. In his post-trial motion,

  he said that he obtained the document after trial by accessing UC

  Health’s “patient portal.” His only explanation for not doing that

  sooner was that two days after trial he started to “recover

  memories” that he had in fact been in the hospital. But his memory

  loss can’t account for his failure to earlier access the patient portal.

  Regardless whether he recalled the incident, he knew that CSC was

  suing him for a debt owed to UC Health, what services UC Health

  was claiming it had provided, and what UC Health was claiming he


                                     15
  owed. He knew as well the dates of his alleged stay at the hospital

  and had obtained documents from CSC (including UC Health

  documents) before and during the case. Thus, we conclude that the

  report isn’t newly discovered evidence.

¶ 32     In any event, the trial court didn’t abuse its discretion by

  denying Mr. Skivington’s motion because the report wouldn’t have

  changed the outcome of the trial. Mr. Skivington correctly notes

  that the report says that he discharged himself after arriving at the

  ICU.2 But the report doesn’t indicate that he did so immediately on

  arriving on February 28. To the contrary, it says, at least twice,

  that he did so the next day, March 1. And other evidence submitted

  by CSC also shows that he stayed at the hospital overnight.

                               III.   Conclusion

¶ 33     The judgment and order are affirmed.

         JUDGE HARRIS and JUDGE BROWN concur.




  2   It doesn’t say the ICU was his first treatment stop at the hospital.

                                       16
