Annotation I. General Consideration. Law reviews. For article, “Misconduct of Jury-Ground for New Trial”, see 16 Dicta 317 (1939). For article, “Notes on Proposed Amendments to Colorado Rules of Civil Procedure”, see 27 Dicta 165 (1950). For article, “Amendments to the Colorado Rules of Civil Procedure”, see 28 Dicta 242 (1951). For article, “Judgment: Rules 54-63 “, see 23 Rocky Mt. L. Rev. 581 (1951). For article, “Appellate Procedure and the New Supreme Court Rules”, see 30 Dicta 1 (1953). For article, “Civil Remedies and Civil Procedure”, see 30 Dicta 465 (1953). For article, “One Year Review of Civil Procedure”, see 34 Dicta 69 (1957). For article, “One Year Review of Civil Procedure and Appeals”, see 36 Dicta 5 (1959). For article, “One Year Review of Civil Procedure and Appeals”, see 37 Dicta 21 (1960). For article, “One Year Review of Civil Procedure and Appeals”, see 38 Dicta 133 (1961). For article, “One Year Review of Civil Procedure and Appeals”, see 39 Dicta 133 (1962). For article, “One Year Review of Civil Procedure and Appeals”, see 40 Den. L. Ctr. J. 66 (1963). For note, “One Year Review of Civil Procedure”, see 41 Den. L. Ctr. J. 67 (1964). For note, “New Trial Motion in Colorado-Some Significant Changes”, see 37 U. Colo. L. Rev. 379 (1965). For a discussion of federal jurisdiction arising under this rule, see survey of Tenth Circuit decisions on federal practice and procedure, 53 Den. L.J. 153 (1976). For article, “The One Percent Solution”, see 11 Colo. Law. 86 (1982). For article, “Federal Practice and Procedure”, which discusses a recent Tenth Circuit decision dealing with post-trial motions, see 62 Den. U. L. Rev. 232 (1985). For article, “Post-Trial Motions in the Civil Case: An Appellate Perspective”, see 32 Colo. Law. 71 (November 2003). Annotator’s note. Since this rule, as it existed prior to January 1, 1985, was similar to §§ 237 and 238 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, and, since present provisions of sections (e) and (i) of this rule are similar to C.R.C.P. 50(b) and (c), as they existed prior to January 1, 1985, relevant cases construing §§ 237 and 238 of the former code and former C.R.C.P. 50(b) and (c) have been included in the annotations to this rule. Purpose of a motion for a new trial is to give the trial court an opportunity to correct alleged errors. Danielson v. Kerbs AG., Inc., 646 P.2d 363 (Colo. 1982). The primary purpose of a motion to amend judgment or for new trial is to give the court an opportunity to correct any errors that it may have made. In re Jones, 668 P.2d 980 (Colo. App. 1983). Relief sought, and therefore time limitations, for judgment entered pursuant to C.R.C.P. 58 is pursuant to subsection (a)(4) of this rule even though relief sought was from costs taxed by clerk pursuant to C.R.C.P. 54. Davis v. Bruton, 797 P.2d 830 (Colo. App. 1990). This rule authorizes the filing of a motion for new trial and empowers the court under certain conditions to grant a new trial on all or part of the issues. Dale v. Safeway Stores, Inc., 152 Colo. 581, 383 P.2d 795 (1963). A motion for reconsideration of an order granting a new trial is not governed by this section because such order is not a final judgment. Bowman v. Songer, 820 P.2d 1110 (Colo. 1991). A motion to reconsider is not specifically delineated in this rule, and no other rule or statute establishes a party’s right to file such a motion, except under the Administrative Procedure Act and the Colorado appellate rules. Stone v. People, 895 P.2d 1154 (Colo. App. 1995). A motion to reconsider in light of new circumstances or newly discovered evidence is not subject to the limitations in section (d) of this rule. UIH-SFCC Holdings, L.P. v. Brigato, 51 P.3d 1076 (Colo. App. 2002). New trial is the only means for trial court to change judgment. Once a valid judgment is entered the only means by which the trial court may thereafter alter, amend, or vacate the judgment is by appropriate motion under either this rule or C.R.C.P. 60. Cortvriendt v. Cortvriendt, 146 Colo. 387, 361 P.2d 767 (1961); In re Warner, 719 P.2d 363 (Colo. App. 1986). Plaintiff’s motion to reconsider the summary judgment determination must be characterized as a motion for new trial under subsection (d)(4). The primary purpose of a motion for a new trial is to give the trial court an opportunity to correct any errors it may have made. Graven v. Vail Assocs., Inc., 888 P.2d 310 (Colo. App. 1994); Zolman v. Pinnacol Assurance, 261 P.3d 490 (Colo. App. 2011). Retired judge may not entertain a motion for a new trial. After the expiration of his term of office, a judge may not entertain a motion under this rule, even though such motion is filed in a proceeding wherein the “former” judge had himself entered the final judgment at a time when he was actually serving as a judge. Olmstead v. District Court, 157 Colo. 326, 403 P.2d 442 (1965). An appellate court does not grant or deny motions filed subsequent to entry of judgment under this rule since this is a function of the trial court; once a trial court has acted, however, an appellate court may in appropriate proceedings be called upon to review the propriety of the action thus taken by it. Olmstead v. District Court, 157 Colo. 326, 403 P.2d 442 (1965). Court of appeals had subject matter jurisdiction to rule on issue to setoff two judgments and to enter single judgment despite fact that second notice of appeal to amended judgment was untimely where plaintiff raised issue of lack of setoff in trial court. Husband v. Colo. Mountain Cellars, 867 P.2d 57 (Colo. App. 1993). Motion for new trial is analogous to motion for reconsideration, reargument, or rehearing in a proceeding before the public utilities commission. Peoples Natural Gas Div. v. Pub. Utils. Comm’n, 626 P.2d 159 (Colo. 1981). An order denying a motion for a new trial does not deprive the court of jurisdiction to reconsider. Zehnder v. Thirteenth Judicial Dist. Court, 193 Colo. 502, 568 P.2d 457 (1977). Lack of a proper order, entered in accordance with C.R.C.P. 58, determining a motion under this rule was not fatal to appeal where party appealed from underlying order of dissolution of marriage, not from denial of the motion. In re Christen, 899 P.2d 339 (Colo. App. 1995). After reconsideration of the motion to set aside, the court can adhere to its order which has the effect of striking the motion for a new trial. Zehnder v. Thirteenth Judicial Dist. Court, 193 Colo. 502, 568 P.2d 457 (1977). Court has duties upon timely filing of motion. Where a timely motion for a new trial is filed, it is then incumbent upon the district court to either set the motion for hearing or to dispense with oral argument and decide the motion on the basis of the written briefs alone. Danielson v. Kerbs AG., Inc., 646 P.2d 363 (Colo. 1982). A trial court has great discretion in granting of motions for new trials. DeMott v. Smith, 29 Colo. App. 531, 486 P.2d 451 (1971). In determining whether a new trial should be granted, the trial court has broad discretionary powers. Park Stations, Inc., v. Hamilton, 38 Colo. App. 216, 554 P.2d 311 (1976). Whether or not a new trial is granted is usually a matter for the sound discretion of the trial judge whose presence and observation at the trial better equip him for making this decision. First Nat’l Bank v. Campbell, 198 Colo. 344, 599 P.2d 915 (1979). The trial court properly exercised discretion when granting a motion for reconsideration in order to correct a previous erroneous ruling on a motion to reconsider if done within 60 days of the prior ruling. In re Nixon, 785 P.2d 151 (Colo. App. 1989). Where the record indicated that no further issues of material fact remained to be addressed, summary judgment was a final judgment despite trial court order indicating that genuine issues of material fact remained to be addressed, and district court lacked jurisdiction for further orders. Driscoll v. District Court, 870 P.2d 1250 (Colo. 1994). Order reversed where court substitutes opinion on disputed facts. Orders granting new trials are subject to reversal where it appears from the record that the trial court has merely substituted its opinion on disputed questions of fact for that of the jury. DeMott v. Smith, 29 Colo. App. 531, 486 P.2d 451 (1971); Roth v. Stark Lumber Co., 31 Colo. App. 121, 500 P.2d 145 (1972). Where the court failed to rule on a motion for reconsideration within 60 days, the court effectively denied the motion, the judgment became final, and the court lost jurisdiction for any further action. Driscoll v. District Court, 870 P.2d 1250 (Colo. 1994). Automatic denial after the 60-day determination period described in section (j) of this rule is mandatory. Actions taken by the court under this rule after the 60-day period are outside the court’s jurisdiction and void. De Avila v. Estate of DeHerrera, 75 P.3d 1144 (Colo. App. 2003). But divestiture of jurisdiction under this rule does not preclude the court from considering proper motions made under C.R.C.P. 60. De Avila v. Estate of DeHerrera, 75 P.3d 1144 (Colo. App. 2003). A trial judge may not change the substance of a jury’s verdict upon his own motion. Leo Payne Pontiac, Inc. v. Ratliff, 178 Colo. 361, 497 P.2d 997 (1972). The granting of a new trial by the trial court should be reversed if the reasons for granting a new trial do not constitute legal grounds, or do not in fact exist. DeMott v. Smith, 29 Colo. App. 531, 486 P.2d 451 (1971). In trial by court, judge retains jurisdiction after motion filed. Upon the filing of the motion for new trial within the time provided by rule, the trial court retained full power to correct any and all errors theretofore committed in the trial to the court. Goodwin v. Eller, 127 Colo. 529, 258 P.2d 493 (1953). Filing of motion operates to continue jurisdiction of court. Where a trial was to the court, and its findings were announced, and counsel gave notice of a motion for a new trial, and subsequently at the same term filed his motion, but the motion was not disposed of until the subsequent term, held that the proceedings at the first term, subsequent to the findings, operated to reserve the case and to continue the jurisdiction beyond that term, for the purpose of disposing of the motion and the settling of the bill of exceptions. Gomer v. Chaffe, 5 Colo. 383 (1880). The trial court may reverse judgment. Where an action has been tried to the court without a jury, and a motion for new trial has been filed after entry of findings and judgment, the trial court has the power, upon consideration of such motion, to vacate the original findings and judgment, reverse itself, and enter a judgment in favor of the opposite party. Goodwin v. Eller, 127 Colo. 529, 258 P.2d 493 (1953); Smith v. Whitlow, 129 Colo. 239, 268 P.2d 1031 (1954). Trial court properly refused to consider the issues raised in affidavits and did not abuse its discretion in denying plaintiff’s motion to reconsider since affidavits filed after the granting of a motion for summary judgment cannot be considered on a motion to reconsider and a court need not entertain new theories on a motion to reconsider following the grant of summary judgment. Graven v. Vail Assocs., Inc., 888 P.2d 310 (Colo. App. 1994). The court will not address issues raised for the first time in a reply brief on a post-trial motion for the same reason that issues will not be considered when raised for the first time in reply briefs on appeal. Flagstaff Enters. Constr. Inc. v. Snow, 908 P.2d 1183 (Colo. App. 1995). Court may limit issues to be retried. When error exists as to only one or more issues and the judgment is in other respects free from error, a reviewing court may, when remanding the cause for a new trial, whether by the court or a jury, limit the new trial to the issues affected by the error whenever these issues are entirely distant and separable from the matters involved in other issues and the trial can be had without danger of complication with other matters. Murrow v. Whitely, 125 Colo. 392, 244 P.2d 657 (1952). Where the practice permits a partial new trial, it may not properly be resorted to unless it clearly appears that the issue to be retried is so distinct and separable from the others that a trial of it alone may be had without injustice to either party. Murrow v. Whiteley, 125 Colo. 392, 244 P.2d 657 (1952). Where the issues of damages and of liability in the action are closely intertwined, it would be error to confine the new trial solely to the liability issue. Where the issues at trial are interrelated and depend upon one another for determination, then error which requires a new trial on one issue will, of necessity, require a new trial as to all issues. Bassett v. O’Dell, 30 Colo. App. 215, 491 P.2d 604 (1971), aff’d, 178 Colo. 425, 498 P.2d 1134 (1972). Under this rule, the court may, on review, subject dependency proceedings to a complete review, in furtherance of which he is empowered, inter alia, to reconsider the petition, take additional testimony, amend findings of fact and conclusions of law, or make new findings and conclusions, and direct the entry of a new order. People in Interest of S.S.T., 38 Colo. App. 110, 553 P.2d 418 (1976). The motion for a new trial set forth numerous alleged errors of the trial court relating to the admission of evidence, exhibits, the giving and refusal of instructions, and other matters bearing directly upon the issue of liability and which, if overruled, defendants would be entitled to have reviewed upon writ of error. To limit the retrial to the issue of damages alone would deprive them of the full review covering all elements of the case to which they are unquestionably entitled. The trial court acted within its discretion and authority in declining to limit the issues upon retrial. Piper v. District Court, 147 Colo. 87, 364 P.2d 213 (1961). Original judgment retains force until modified. Irregular and erroneous judgments necessarily retain their force and have effect until modified by a trial court in consequence of its authority in certain circumstances, or until vacated pursuant to new trial procedures under this rule, or until reversed by an appellate court in review proceedings. Such judgments are subject only to direct attack; they are not vulnerable to collateral assault. Davidson Chevrolet, Inc. v. City & County of Denver, 138 Colo. 171, 330 P.2d 1116 (1958), cert. denied, 359 U.S. 926, 79 S. Ct. 609, 3 L. Ed. 2d 629 (1959). Interest runs from original judgment when motion for new trial is denied. Where a motion for a new trial is overruled and thereafter a trial court computes interest on the verdict and orders judgment in the amount of the verdict and interest, this concludes the trial court’s action relative to the judgment and becomes the final judgment. Green v. Jones, 134 Colo. 208, 304 P.2d 901 (1956). A memorandum in support of a motion for new trial is not mandatory but it is within the discretion of the trial judge to consider a motion for new trial without a memorandum. West-Fir Studs, Inc. v. Anlauf Lumber Co., 190 Colo. 298, 546 P.2d 487 (1976). Memorandum brief is for benefit of trial court. Although section (a) (now section (d)) formerly required a memorandum brief and it was within the discretion of the trial court to strike a motion for new trial unaccompanied by such a brief, this requirement was for the benefit of the trial court in its own review and evaluation of its determination of the case, and where the trial court ruled on a motion for new trial without requiring a brief, the brief requirement was waived. L.C. Fulenwider, Inc. v. Ginsberg, 36 Colo. App. 246, 539 P.2d 1320 (1975) (decided prior to 1985 amendment). The requirement of a memorandum brief in support of a motion for new trial is for the benefit of the trial court in its review of its determination of the case. Where the trial court considers the brief to be sufficient and considers the brief in its ruling on the motion, the brief has fulfilled its purpose as intended by the rules of procedure. In re Flohr, 672 P.2d 1024 (Colo. App. 1983). Counsel is not entitled to free transcript to aid in preparation of motion. In absence of statute authorizing furnishing of free transcript of proceedings to aid in preparation of motion for new trial, counsel is not entitled to copy for preparation of such motion. People in Interest of A.R.S., 31 Colo. App. 268, 502 P.2d 92 (1972). A motion for new trial filed in apt time suspends the judgment so that it becomes final only when the motion is overruled. Bates v. Woodward, 66 Colo. 555, 185 P. 351 (1919); Kinney v. Yoelin Bros. Mercantile Co., 74 Colo. 295, 220 P. 998 (1923). This rule does not apply to appeals in a district court from judgments of a county court. Such appeals are pure creatures of statute, and no motion for a new trial is provided for in such cases. Erbaugh v. Jacobson, 140 Colo. 182, 342 P.2d 1026 (1959). After an appeal of a final judgment has been perfected, the trial court is without jurisdiction to entertain any motion or any order affecting the judgment. People in Interest of J.L.P., 870 P.2d 1252 (Colo. App. 1994). Requirement of supporting affidavit serves to demonstrate that one, who moves for a new trial alleging irregularities in prior proceedings that denied him a fair trial, is acting upon a basis of knowledge, not upon a suspicion or mere hope. Peoples Natural Gas Div. v. Pub. Utils. Comm’n, 626 P.2d 159 (Colo. 1981). Affidavit of losing counsel allowed to support motion for new trial where the affidavit contains factual allegations and a basis of knowledge upon which the motion for a new trial rests. Aldrich v. District Court, 714 P.2d 1321 (Colo. 1986). Successor judge has discretion to rule on a motion for a new trial which challenges the sufficiency of the evidence. Faris v. Rothenberg, 648 P.2d 1089 (Colo. 1982). There is nothing in the rules prohibiting early filing of a motion for new trial; they only proscribe motions filed too late. Haynes v. Troxel, 670 P.2d 812 (Colo. App. 1983). A judgment is final when it disposes of the entire litigation on the merits and a motion for costs does not stay the finality of that judgment. Driscoll v. District Court, 870 P.2d 1250 (Colo. 1994). The provisions of C.R.C.P. 6(e) authorize the addition of three days to the prescribed period for taking certain actions following service by mail. However, the time for filing a rule 59 motion is specifically triggered either by entry of judgment in the presence of the parties or by mailing of notice of the court’s entry of judgment if all parties were not present when judgment was entered. As a result, C.R.C.P. 6(e) is not applicable to the filing of rule 59 motions. Wilson v. Fireman’s Fund Ins. Co., 931 P.2d 523 (Colo. App. 1996). Attorney fee issues. Trial court retains jurisdiction to determine motions on attorney fee issues even though the merits of the judgment are pending appeal. Koontz v. Rosener, 787 P.2d 192 (Colo. App. 1989). Where each party prevails in part an award of costs is committed to sole discretion of trial court and court’s discretion remains unaffected by fact that judgment awarded to one party is larger than judgment awarded to the other. Husband v. Colo. Mountain Cellars, 867 P.2d 57 (Colo. App. 1993). A request for costs is outside the purview of this section because a decision concerning a request for costs does not amend or otherwise affect the finality of the judgment on the merits. Because a request for costs is not subject to the 60-day limitation, the trial court had jurisdiction to consider the defendant’s bill of costs following the expiration of that period. Hierath-Prout v. Bradley, 982 P.2d 329 (Colo. App. 1999). Rule not applicable. Motions filed following a jury trial that pertained to unresolved, substantive claims raised in the complaint are not directed at post-judgment relief and, therefore, this rule is not applicable. Church v. Amer. Standard Ins. Co. of Wis., 742 P.2d 971 (Colo. App. 1987). No error by trial court in denying appellant’s motion for leave to file a motion for reconsideration of motion to dismiss and in rejecting arguments to clarify trial court’s original order. Failure to file motion within time allowed by section (a), absent extension, deprives court of jurisdiction to act under rule. Here, time to file motion for post-trial relief ended before appellant filed motion for leave to file motion for reconsideration of motion to dismiss. As such, motion for leave was untimely, and trial court did not err in denying it. Titan Indem. Co. v. Travelers Prop. Cas. Co. of Am., 181 P.3d 303 (Colo. App. 2007). Applied in Miller v. Carnation Co., 33 Colo. App. 62, 516 P.2d 661 (1973); City of Englewood v. Reffel, 34 Colo. App. 103, 522 P.2d 1241 (1974); Bd. of County Comm’rs v. Evergreen, Inc., 35 Colo. App. 171, 532 P.2d 777 (1974); Cline v. City of Boulder, 35 Colo. App. 349, 532 P.2d 770 (1975); Lehman v. Williamson, 35 Colo. App. 372, 533 P.2d 63 (1975); Joslin Dry Goods Co. v. Villa Italia, Ltd., 35 Colo. App. 252, 539 P.2d 137 (1975), 541 P.2d 118 (Colo. App. 1975); Dill v. County Court, 37 Colo. App. 75, 541 P.2d 1272 (1975); In re Franks, 189 Colo. 499, 542 P.2d 845 (1975); Lewis v. People in Interest of C.K.L., 189 Colo. 552, 543 P.2d 722 (1975); Poor v. District Court, 190 Colo. 433, 549 P.2d 756 (1976); Miller v. Carnation Co., 39 Colo. App. 1, 564 P.2d 127 (1977); Allred v. City of Lakewood, 40 Colo. App. 238, 576 P.2d 186 (1977); Catron v. Catron, 40 Colo. App. 476, 577 P.2d 322 (1978); Bd. of Water Works v. Pueblo Water Works Employees Local 1045, 196 Colo. 308, 586 P.2d 18 (1978); Taylor v. Barnes, 41 Colo. App. 246, 586 P.2d 238 (1978); State Dept. Natural Res. v. Benjamin, 41 Colo. App. 520, 587 P.2d 1207 (1978); First Nat’l Bank v. Campbell, 41 Colo. App. 406, 589 P.2d 501 (1978); Matthews v. Tri-County Water Conservancy Dist., 42 Colo. App. 80, 594 P.2d 586 (1979); O’Hara Group Denver, Ltd. v. Marcor Hous. Sys., 197 Colo. 530, 595 P.2d 679 (1979); City of Colo. Springs v. Gladin, 198 Colo. 333, 599 P.2d 907 (1979); Hitti v. Montezuma Valley Irrigation Co., 42 Colo. App. 194, 599 P.2d 918 (1979); Ayala v. Colo. Dept. of Rev., 43 Colo. App. 357, 603 P.2d 979 (1979); In re Stroud, 657 P.2d 960 (Colo. App. 1979); People in Interest of J.B.P., 44 Colo. App. 95, 608 P.2d 847 (1980); Matthews v. Tri-County Water Conservancy Dist., 200 Colo. 202, 613 P.2d 889 (1980); Prof’l Group, Ltd. v. Great Falls Props., Inc., 44 Colo. App. 370, 622 P.2d 76 (1980); D.E.B. Adjustment Co. v. Cawthorne, 623 P.2d 82 (Colo. App. 1981); Fitzgerald v. Edelen, 623 P.2d 418 (Colo. App. 1981); Fort Lupton State Bank v. Murata, 626 P.2d 757 (Colo. App. 1981); Craig v. Rider, 628 P.2d 623 (Colo. App. 1980); In re Stroud, 631 P.2d 168 (Colo. 1981); Maltby v. J.F. Images, Inc., 632 P.2d 646 (Colo. App. 1981); In re Stedman, 632 P.2d 1048 (Colo. App. 1981); Young v. Golden State Bank, 632 P.2d 1053 (Colo. App. 1981); In re Van Camp, 632 P.2d 1062 (Colo. App. 1981); People in Interest of E.A., 638 P.2d 278 (Colo. 1981); In re Smith, 641 P.2d 301 (Colo. App. 1981); Duran v. Lamm, 644 P.2d 66 (Colo. App. 1981); Cavanaugh v. State Dept. of Soc. Servs., 644 P.2d 1 (Colo. 1982); Baum v. S.S. Kresge Co., 646 P.2d 400 (Colo. App. 1982); Davis Mfg. & Supply Co. v. Coonskin Props., Inc., 646 P.2d 940 (Colo. App. 1982); Jameson v. Foster, 646 P.2d 955 (Colo. App. 1982); Kennedy v. Leo Payne Broadcasting, 648 P.2d 673 (Colo. App. 1982); State Dept. of Highways v. Pigg, 656 P.2d 46 (Colo. App. 1982); In re Chambers, 657 P.2d 458 (Colo. App. 1982); Parry v. Walker, 657 P.2d 1000 (Colo. App. 1982); Ackmann v. Merchants Mtg. & Trust Corp., 659 P.2d 697 (Colo. App. 1982); Moore v. Wilson, 662 P.2d 160 (Colo. 1983); Acme Delivery Serv., Inc., v. Samsonite Corp., 663 P.2d 621 (Colo. 1983); Blecker v. Kofoed, 714 P.2d 909 (Colo. 1986); Blue Cross of W. New York v. Bulkumez, 736 P.2d 834 (Colo. 1987); Top Rail Ranch Estates, LLC v. Walker, 2014 COA 9, __ P.3d __. II. Post-Trial Motions. A. New Trial. The purpose of filing a post-trial motion is to give a trial court an opportunity to correct any errors. Walter v. Walter, 136 Colo. 405, 318 P.2d 221 (1957); Minshall v. Pettit, 151 Colo. 501, 379 P.2d 394 (1963); Rowe v. Watered Down Farms, 195 Colo. 152, 576 P.2d 172 (1978). A motion for a new trial is not to be regarded as a routine or perfunctory matter. Its obvious purpose is to direct the attention of the trial court with at least some degree of specificity to that which the losing litigant asserts to be error, all to the end that the trial court will be afforded a last look, and an intelligent last look, at the controversy still before it. General allegations of error do not comply. Martin v. Opdyke Agency, Inc., 156 Colo. 316, 398 P.2d 971 (1965); Hamilton v. Gravinsky, 28 Colo. App. 408, 474 P.2d 185 (1970). Order granting new trial is an interlocutory order, and the trial court retains jurisdiction to modify or rescind the order prior to the entry of any final judgment thereafter. A motion for reconsideration of such an order does not challenge the entry of the judgment and is not subject to the limitations of this rule. Songer v. Bowman, 804 P.2d 261 (Colo. App. 1990). Section (f) of this rule, through the language “if a ground exists”, incorporates the six specific grounds upon which post-trial relief may be granted, which are found in section (d) of the rule. Kincaid v. Western Oper. Co., 890 P.2d 249 (Colo. App. 1994). Section (b) (now (a)) permits a motion for new trial to be filed within 10 (now 15) days after entry of judgment, which means after entry of an adverse judgment. Bushner v. Bushner, 141 Colo. 283, 348 P.2d 153 (1959). Where the trial court issued its order nunc pro tunc on April 22, 1974, but the order was not noted in the registry of actions until May 31, 1974, the motion for new trial filed within 10 (now 15) days from that date was timely filed. In re Talarico, 36 Colo. App. 389, 540 P.2d 1147 (1975). When 10-day rule not applicable. Where the court was granting plaintiff’s motion for a new trial and not acting on its own motion, the 10-day rule set forth in section (b) (now (a)) of this rule was not applicable. Park Stations, Inc. v. Hamilton, 38 Colo. App. 216, 554 P.2d 311 (1976) (decided prior to 1977 and 1985 amendments). Provision of section (b) (now (a)) is mandatory. Austin v. Coll./Univ. Ins. Co. of Am., 30 Colo. App. 502, 495 P.2d 1162 (1972). Section (b) (now (a)) is mandatory, and failure to comply with it requires a dismissal of the appeal. SCA Servs., Inc. v. Gerlach, 37 Colo. App. 20, 543 P.2d 538 (1975); Henley v. Wendt, 640 P.2d 271 (Colo. App. 1982). Timely filing is jurisdictional. Timely filing of a motion for a new trial is jurisdictional. SCA Servs., Inc. v. Gerlach, 37 Colo. App. 20, 543 P.2d 538 (1975). The failure to file a motion for a new trial within the time prescribed by section (b) (now (a)), as extended by any orders of court pursuant to motions timely made, deprives the court of jurisdiction and requires dismissal of the appeal. Nat’l Account Sys. v. District Court, 634 P.2d 48 (Colo. 1981); Schuster v. Zwicker, 659 P.2d 687 (Colo. 1983); Liberty Mutual Ins. Co. v. Safeco Ins. Co., 679 P.2d 1115 (Colo. App. 1984); In re McSoud, 131 P.3d 1208 (Colo. App. 2006). A timely motion for a new trial, or to alter or amend the judgment, is a jurisdictional prerequisite to appellate review of such judgment. Watered Down Farms v. Rowe, 39 Colo. App. 169, 566 P.2d 710 (1977), rev’d on other grounds, 195 Colo. 152, 576 P.2d 172 (1978). Period for filing a motion for a new trial begins when notice of entry of judgment is mailed to the parties, but C.R.C.P. 6(e) extends that period when a judgment is mailed. Because C.R.C.P. 6(e) does not specifically exclude C.R.C.P. 59 motions from its provisions, C.R.C.P. 6(e) extends the time for filing a C.R.C.P. 59 motion when the parties were not present when the judgment was signed and the notice of entry of judgment was mailed to the parties. Littlefield v. Bamberger, 10 P.3d 710 (Colo. App. 2000). Extension of time is discretionary. Trial judge’s extension of the time for filing the motion for new trial, from 10 (now 15) to 20 days, is within his discretion. City & County of Denver v. Bd. of Adjustment, 31 Colo. App. 324, 505 P.2d 44 (1972). Discretion to grant or deny belated request. Where party did not file motion for fees until 24 days after expiration of 15-day period and did not request extension of time nor offer excuse for delay, court did not abuse its discretion by denying the motion. Major v. Chons Bros., Inc., 53 P.3d 781 (Colo. App. 2002). Extension of time for filing post-trial motions. Where the trial court, following judgment, grants a “stay” in order for counsel to have an “opportunity to pursue the matter further”, it intends to extend the permissible time for filing post-trial motions. Blecker v. Kofoed, 672 P.2d 526 (Colo. 1983). Court of review will assume extension was properly made. Where the time for filing a motion for new trial was extended to 15 (now regular time limit) days after the entry of judgment, the court of review will assume that the extension was properly made, in the absence of proper objections to the order of the county court. Niles v. Shinkle, 119 Colo. 458, 204 P.2d 1077 (1949). Failure to file motion in time is fatal. The failure to file a motion for a new trial within the time provided by this rule, or within the extended period fixed by the court for so doing, is fatal to the right of review. Therefore, the county court was without jurisdiction to entertain a motion for a new trial after the time allowed by the court; and such motion should have been stricken from the files. Niles v. Shinkle, 119 Colo. 458, 204 P.2d 1077 (1949); City & County of Denver v. Just, 175 Colo. 260, 487 P.2d 367 (1971). Trial court proceeded in excess of its jurisdiction when it vacated the jury verdict and ordered a new trial outside of the time limits provided by this rule. The trial court had jurisdiction to order a new trial within the time limit only. Beavers v. Archstone Comtys. Ltd., 64 P.3d 855 (Colo. 2003). For permissibility of filing motion with judge or clerk, see Sprott v. Roberts, 154 Colo. 252, 390 P.2d 465 (1964). Defendant must file for new trial after his case is dismissed, not after conclusion of entire case. Where a complaint is dismissed as to certain defendants and judgment of dismissal entered under C.R.C.P. 41(b)(1), a court has no power after the time to file a motion for a new trial has expired as to such defendants, to grant a motion for a new trial as to all defendants, such dismissal constituting a judgment on the merits under C.R.C.P. 41. Graham v. District Court, 137 Colo. 233, 323 P.2d 635 (1958). A judgment is entered only when noted in judgment docket. For purposes of timely filing of a motion for new trial under section (b) (now (a)) of this rule, a judgment is “entered” only upon notation in the judgment docket pursuant to C.R.C.P. 58(a)(3) (now (a)) and C.R.C.P. 79(d). City & County of Denver v. Just, 175 Colo. 260, 487 P.2d 367 (1971). If this section is not complied with, supreme court cannot review. Where a record on error fails to show compliance with this section requiring the filing of a motion for a new trial, or that a trial court otherwise ordered under section (f), the supreme court will not consider the merits on review. Sullivan v. Modern Music Co., 137 Colo. 292, 324 P.2d 374 (1958) (decided prior to 1985 amendment). C.R.C.P. 6(a) does apply to extend time under this rule. Bonanza Corp. v. Durbin, 696 P.2d 818 (Colo. 1985). Court did not forestall 60-day deadline by taking inconclusive action within said period, i.e. scheduling hearing on motion. Canton Oil v. District Court, 731 P.2d 687 (Colo. 1987). Motion may be filed prior to entry of judgment. A motion for new trial may properly be filed prior to the execution of the written order entering the judgment. In re Jones, 668 P.2d 980 (Colo. App. 1983). Date of entry of judgment on jury verdict is effective date. The date that judgment on a jury verdict is entered in open court is the effective date of entry of judgment which governs the filing of a motion for new trial under section (b) (now (a)). Henley v. Wendt, 640 P.2d 271 (Colo. App. 1982). C.R.C.P. 58(a) controls date of entry of judgment. The timeliness of a civil appeal is governed by C.A.R. 4(a) (appeal as of right), not C.R.C.P. 58(a); C.R.C.P. 58(a), however, does control the date of entry of judgment for the purposes of this rule. Moore & Co. v. Williams, 672 P.2d 999 (Colo. 1983). When post-trial motion is filed prior to entry of judgment, it is deemed to have been filed on the date of entry of judgment, and the 60-day period within which to rule on motion commences to run from said date. People in Interest of T.R.W., 759 P.2d 768 (Colo. App. 1988). Post-trial motions for attorney fees are subject to the provisions of this rule, and the effect of such motions upon the time limitations of C.A.R. 4(a) are as specified in this rule. Torrez v. Day, 725 P.2d 1184 (Colo. App. 1986). Evidence was not “newly discovered” when the party seeking a new trial had the evidence in its possession two months prior to the trial court’s judgment, but did not file the evidence with the trial court. Mortgage Invs. Corp. v. Battle Mountain Corp., 70 P.3d 1176 (Colo. App. 2003). Where there has never been a trial, this section cannot be violated. In a proceeding under the Colorado Children’s Code, title 19, where it was argued that the petition for new trial and demand for jury trial were filed too late, and thus were not in accordance with section (b) (now (a)) of this rule, this argument was rejected since according to the record there had never been any trial held or evidence presented in support of the dependency petition and, hence, no violation of said section could have occurred. C. B. v. People in Interest of J. T. B., 30 Colo. App. 269, 493 P.2d 691 (1971). The running of the time for filing a notice of appeal is terminated upon the timely filing of a motion for new trial, and the time begins to run anew when that motion is denied. A subsequent motion for new trial that raises issues that either were or could have been raised in the movant’s prior motion does not affect the running of the time for filing the notice of appeal. Wright Farms, Inc. v. Weninger, 669 P.2d 1054 (Colo. App. 1983). Trial court erred in failing to consider a motion for new trial and motion to amend judgment which were filed after court entered judgment from bench but before judgment was signed as written order and filed. Haynes v. Troxel, 670 P.2d 812 (Colo. App. 1983). For distinction between considerations governing determination of effect of time limitations in criminal cases and in civil cases, see People v. Moore, 193 Colo. 81, 562 P.2d 749 (1977). Where defendant did not seek to reopen the divorce proceeding until approximately five years after entry of judgment, none of the grounds of this rule or C.R.C.P. 60 were available to him to reopen the divorce proceeding. McNeece v. McNeece, 39 Colo. App. 160, 562 P.2d 767 (1977). Extinguishing right of appeal by relating action back to date of judgment. Trial court’s action in relating back matters decided on May 28 to the May 15 entry on the judgment docket had the effect of extinguishing the petitioner’s right to appeal from the determinations made on May 28. Under these circumstances, the 10-day period of section (b) (now (a)) of this rule expired before the remaining issues in the case had even been determined by the trial court. This result contravenes the right of appeal granted by the Colorado constitution. In re Gardella, 190 Colo. 402, 547 P.2d 928 (1976) (decided prior to the 1977 and 1985 amendments). Motion for judgment “non abstante” is wholly separate and distinct from motion for new trial and does not take the place of one. Ross v. Arrow Mfg. Co., 134 Colo. 530, 307 P.2d 196 (1957). A motion for a new trial may be joined with a motion for judgment “non abstante” or a new trial may be prayed in the alternative. Ross v. Arrow Mfg. Co., 134 Colo. 530, 307 P.2d 196 (1957). Granting a motion for judgment n.o.v. does not effect an automatic denial of an alternative motion for a new trial. Grange Mut. Fire Ins. Co. v. Golden Gas Co., 133 Colo. 537, 298 P.2d 950 (1956). Ruling on both should be made at same time. Where a motion for judgment notwithstanding the verdict or in the alternative for a new trial is filed under this rule, a trial court should make a ruling on both phases of the motion at the same time. Grange Mut. Fire Ins. Co. v. Golden Gas Co., 133 Colo. 537, 298 P.2d 950 (1956). This rule contemplates that either party to an action is entitled to the trial judge’s decision on both motions, if both are presented. Ross v. Arrow Mfg. Co., 134 Colo. 530, 307 P.2d 196 (1957). If a trial court errs in granting the motion n.o.v., the party against whom the verdict goes is entitled to have his motion for a new trial considered in respect of asserted substantial trial errors and matters appealing to the discretion of the judge. Ross v. Arrow Mfg. Co., 134 Colo. 530, 307 P.2d 196 (1957). The cause will be remanded for a ruling on such motion. Where a motion for judgment notwithstanding the verdict or in the alternative for a new trial is filed, and the court erroneously grants the motion for judgment, leaving the motion for a new trial undecided, the cause will be remanded for a ruling on such motion. Ross v. Arrow Mfg. Co., 134 Colo. 530, 307 P.2d 196 (1957). A decision in favor of the moving party upon the motion for judgment ends the litigation and often makes it possible for an appellate court to dispose of the case without remanding it for a new trial. Ross v. Arrow Mfg. Co., 134 Colo. 530, 307 P.2d 196 (1957). Trial court may grant a motion for a new trial on all or part of the issues. Trione v. Mike Wallen Standard, Inc., 902 P.2d 454 (Colo. App. 1995). Before granting a partial new trial, it should clearly appear that the issue to be retried is entirely distinct and separable from the other issues involved in the case and that a partial retrial can be had without injustice to any party. Bassett v. O’Dell, 178 Colo. 425, 498 P.2d 1134 (1972); Trione v. Mike Wallen Standard, Inc., 902 P.2d 454 (Colo. App. 1995). If a trial court, in reviewing and examining the facts, is dissatisfied with the verdict because it is against the weight, sufficiency, or preponderance of the evidence, it may, under certain limitations, set the same aside and grant a new trial so that the issues of fact may ultimately be determined. Burenheide v. Wall, 131 Colo. 371, 281 P.2d 1000 (1955). In passing upon such motions, a trial judge is necessarily required to weigh the evidence, so that he may determine whether the verdict was one which might reasonably have been reached. Singer v. Chitwood, 126 Colo. 173, 247 P.2d 905 (1952). The trial judge has discretion to grant a new trial before another jury if he thinks the verdict is wrong, though there be some evidence to support it, and his action is generally not subject to review on appeal. Burenheide v. Wall, 131 Colo. 371, 281 P.2d 1000 (1955). Applied in Thorpe v. Durango Sch. Dist. No. 9 -R, 41 Colo. App. 473, 591 P.2d 1329 (1978); Luna v. Fisher, 690 P.2d 264 (Colo. App. 1984). B. Judgment Notwithstanding the Verdict. Law reviews. For article, “Colorado Criminal Procedure-Does It Meet Minimum Standards?”, see 28 Dicta 14 (1951). This rule provides the method for securing a judgment “non obstante veredicto” when a motion for a directed verdict has been properly requested. Grange Mut. Fire Ins. Co. v. Golden Gas Co., 133 Colo. 537, 298 P.2d 950 (1956). This rule adds nothing of substance to the rights of litigants previously available through a more cumbersome procedure. Burenheide v. Wall, 131 Colo. 371, 281 P.2d 1000 (1955). The reason underlying this rule is that an opportunity should be given a trial court to reexamine, as a matter of law, the facts which have been considered and resolved by a jury. Ross v. Arrow Mfg. Co., 134 Colo. 530, 307 P.2d 196 (1957). Motion for directed verdict must be made at conclusion of evidence. In actions where the issues are submitted to a jury for determination, it is an essential prerequisite to the right of either party to file a motion for judgment notwithstanding the verdict that a motion for directed verdict shall have been made at the conclusion of all the evidence. Ross v. Arrow Mfg. Co., 134 Colo. 530, 307 P.2d 196 (1957). This rule does not compel a party against whom a verdict is directed to make a motion for a directed verdict in his favor as a condition to the right to file a motion for judgment notwithstanding the verdict, since a verdict having been directed by the court, the reason for the requirement no longer exists. Ross v. Arrow Mfg. Co., 134 Colo. 530, 307 P.2d 196 (1957). Where a motion to dismiss is interposed at the conclusion of all the evidence and after verdict and judgment a motion for a new trial is filed, one of the grounds thereof being that a court erred in denying the motion to dismiss made at the conclusion of all the evidence, such motion is sufficient to authorize a trial court to enter judgment for a defendant notwithstanding the verdict. Mountain States Mixed Feed Co. v. Ford, 140 Colo. 224, 343 P.2d 828 (1959). For a court to set aside a verdict as against the weight of evidence, the evidence may be merely insufficient in fact and it may be either insufficient in law or it may have more weight and not enough to justify the court in exercising the control which the law gives it to prevent unjust verdicts to allow a verdict to stand. Gossard v. Watson, 122 Colo. 271, 221 P.2d 353 (1950); Singer v. Chitwood, 126 Colo. 173, 247 P.2d 905 (1952). This rule does not allow for a belated disturbance of a jury’s finding on the facts when a reservation has been made to determine law questions only. Wallower v. Elder, 126 Colo. 109, 247 P.2d 682 (1952). Filing a motion for judgment notwithstanding the verdict within 10 days after receipt of the verdict is mandatory. Ross v. Arrow Mfg. Co., 134 Colo. 530, 307 P.2d 196 (1957). Unless such motion is filed within that time, a court has no power to pass on it. Ross v. Arrow Mfg. Co., 134 Colo. 530, 307 P.2d 196 (1957); Arrow Mfg. Co. v. Ross, 141 Colo. 1, 346 P.2d 305 (1959). Appellate court forbidden to enter judgment. In the absence of a motion for judgment notwithstanding the verdict made in the trial court within 10 days after reception of a verdict, the rule forbids the trial judge or an appellate court to enter such a judgment. Mero v. Holly Hudson Motor Co., 129 Colo. 282, 269 P.2d 698 (1954). Standard for granting judgment n.o.v. A jury’s verdict can be set aside and judgment notwithstanding the verdict entered only if the evidence is such that reasonable men could not reach the same conclusion as the jury. Thorpe v. Durango Sch. Dist. No. 9 -R, 41 Colo. App. 473, 591 P.2d 1329 (1978), aff’d, 200 Colo. 268, 614 P.2d 880 (1980); Wesley v. United Servs. Auto Ass’n, 694 P.2d 855 (Colo. App. 1984); Smith v. Denver, 726 P.2d 1125 (Colo. 1986); Alzado v. Blinder, Robinson & Co., Inc., 752 P.2d 544 (Colo. 1988); Nelson v. Hammond, 802 P.2d 452 (Colo. 1990); McCafferty v. Musat, 817 P.2d 1039 (Colo. App. 1990). When order enlarging time to file motion for judgment n.o.v. permissible. Although C.R.C.P. 6(b) expressly limits a trial court’s ability to extend a time for acting under section (b) of this rule, there is an exception to that limitation where a party reasonably relies and acts upon an erroneous or misleading statement of ruling by a trial court regarding the time for filing post-trial motions. Converse v. Zinke, 635 P.2d 882 (Colo. 1981). Motion for judgment “non abstante” is wholly separate and distinct from motion for new trial and does not take the place of one. Ross v. Arrow Mfg. Co., 134 Colo. 530, 307 P.2d 196 (1957). A motion for a new trial may be joined with a motion for judgment “non abstante” or a new trial may be prayed in the alternative. Ross v. Arrow Mfg. Co., 134 Colo. 530, 307 P.2d 196 (1957). Granting a motion for judgment n.o.v. does not effect an automatic denial of an alternative motion for a new trial. Grange Mut. Fire Ins. Co. v. Golden Gas Co., 133 Colo. 537, 298 P.2d 950 (1956). The standard for granting a motion for judgment notwithstanding the verdict is complicated when statutory presumptions exist. Such presumptions may be rebutted only by clear and convincing evidence that persuades the finder of fact that the truth of the contention is highly probable and free from serious and substantial doubt. People in Interest of M.C., 844 P.2d 1313 (Colo. App. 1992). This rule contemplates that either party to an action is entitled to the trial judge’s decision on both motions, if both are presented. Ross v. Arrow Mfg. Co., 134 Colo. 530, 307 P.2d 196 (1957). Ruling on both should be made at same time. Where a motion for judgment notwithstanding the verdict or in the alternative for a new trial is filed under this rule, a trial court should make a ruling on both phases of the motion at the same time. Grange Mut. Fire Ins. Co. v. Golden Gas Co., 133 Colo. 537, 298 P.2d 950 (1956). If a trial court errs in granting the motion n.o.v., the party against whom the verdict goes is entitled to have his motion for a new trial considered in respect of asserted substantial trial errors and matters appealing to the discretion of the judge. Ross v. Arrow Mfg. Co., 134 Colo. 530, 307 P.2d 196 (1957). The cause will be remanded for a ruling on such motion. Where a motion for judgment notwithstanding the verdict or in the alternative for a new trial is filed, and the court erroneously grants the motion for judgment, leaving the motion for a new trial undecided, the cause will be remanded for a ruling on such motion. Ross v. Arrow Mfg. Co., 134 Colo. 530, 307 P.2d 196 (1957). A decision in favor of the moving party upon the motion for judgment ends the litigation and often makes it possible for an appellate court to dispose of the case without remanding it for a new trial. Ross v. Arrow Mfg. Co., 134 Colo. 530, 307 P.2d 196 (1957). If a trial court, in reviewing and examining the facts, is dissatisfied with the verdict because it is against the weight, sufficiency, or preponderance of the evidence, it may, under certain limitations, set the same aside and grant a new trial so that the issues of fact may ultimately be determined. Burenheide v. Wall, 131 Colo. 371, 281 P.2d 1000 (1955). In ruling on motion for judgment notwithstanding the verdict, the court must determine whether a reasonable person could not have reached the same conclusion as did the jury and, in making such determination, the court cannot consider the weight of the evidence or the credibility of the witnesses and must consider the evidence in the light most favorable to the verdict. People in Interest of T.R.W., 759 P.2d 768 (Colo. App. 1988); Tuttle v. ANR Freight Sys., Inc., 797 P.2d 825 (Colo. App. 1990); Durdin v. Cheyenne Mountain Bank, 98 P.3d 899 (Colo. App. 2004). A judgment notwithstanding the verdict may be entered only if a reasonable person could not reach the same conclusion as the jury, when viewing the evidence in the light most favorable to the party against whom the motion is directed. Every reasonable inference that may be drawn from the evidence must be drawn in favor of the non-moving party. Boulder Valley Sch. Dist. R-2 v. Price, 805 P.2d 1085 (Colo. 1991). In passing upon such motions, a trial judge is necessarily required to weigh the evidence, so that he may determine whether the verdict was one which might reasonably have been reached. Singer v. Chitwood, 126 Colo. 173, 247 P.2d 905 (1952). The trial judge has discretion to grant a new trial before another jury if he thinks the verdict is wrong, though there be some evidence to support it, and his action is generally not subject to review on appeal. Burenheide v. Wall, 131 Colo. 371, 281 P.2d 1000 (1955). The trial court did not view the evidence presented in appellant’s favor and thereby misapplied the standard for granting a judgment notwithstanding the verdict. People in Interest of M.C., 844 P.2d 1313 (Colo. App. 1992). Applied in Alden Sign Co. v. Roblee, 121 Colo. 432, 217 P.2d 867 (1950); Farmer v. Norm “Fair Trade” Stamp, Inc., 164 Colo. 156, 433 P.2d 490, 36 A.L.R.3d 232 (1967); DeCaire v. Pub. Serv. Co., 173 Colo. 402, 479 P.2d 964 (1971); Wheller & Lewis v. Slifer, 195 Colo. 291, 577 P.2d 1092 (1978); Thorpe v. Durango Sch. Dist. No. 9 -R, 41 Colo. App. 473, 591 P.2d 1329 (1978). C. Amendment of Judgment. Section (e) (now (a)) requires that a motion to alter or amend must be filed within 10 (now 15) days after entry of judgment. Vanadium Corp. of Am. v. Wesco Stores Co., 135 Colo. 77, 308 P.2d 1011 (1957). (Former) section (e) of this rule provides for the filing of a motion to alter or amend a judgment, which is the motion that is referred to in (former) section (f) of this rule, and it is not to be confused with a (former) C.R.C.P. 52(b) motion to amend the findings. Austin v. Coll./Univ. Ins. Co. of Am., 30 Colo. App. 502, 495 P.2d 1162 (1972). When trial court amends pursuant to a motion, original judgment is not final. Section (e) (now (a)) of this rule specifies that a party may move to alter or amend a judgment by a motion filed not later than 10 (now 15) days after entry of judgment. Appellee filed such a motion within the allotted time, and the trial court subsequently did amend its judgment pursuant to such motion and the supplemental motion. Under these circumstances, the original trial court’s judgment never became final. It was not enforceable by either divorced party with respect to his or her property rights. It did not create an enforceable right either in the husband or in his estate to take a divided share of the joint tenancy property. Sarno v. Sarno, 28 Colo. App. 598, 478 P.2d 711 (1970). A judgment amended to comply with a motion therefor is the only judgment to which a writ of error will lie. Green v. Jones, 134 Colo. 208, 304 P.2d 901 (1956). C.R.C.P. 6(b) divests the court of jurisdiction to extend the time for taking action under C.R.C.P. 6(b). Vanadium Corp. of Am. v. Wesco Stores Co., 135 Colo. 77, 308 P.2d 1011 (1957). C.R.C.P. 6(b), gives trial court wide latitude in extending 10-day (now 15-day) period of section (e) (now (a)). Farmer v. Norm “Fair Trade” Stamp, Inc., 164 Colo. 156, 433 P.2d 490 (1967). Memorandum brief must be filed with motion. The rule requiring a short memorandum brief to be filed with a motion for new trial applies equally to a motion to alter or amend the judgment. Zehnder v. Thirteenth Judicial Dist. Court, 193 Colo. 502, 568 P.2d 457 (1977) (decided before 1985 amendment). Court loses jurisdiction to hear plaintiff’s application for attorney’s fees if the plaintiff fails to file a motion to amend the judgment within 15 days. Wesson v. Johnson, 622 P.2d 104 (Colo. App. 1980). Omission of order for costs indicates no allowance of costs. As determined by the court entering judgment, the omission of an order relating to costs constitutes a direction by it that no costs, including attorney fees, are allowed. Wesson v. Johnson, 622 P.2d 104 (Colo. App. 1980). Appellants barred on appeal from asserting error by trial court. Where, after two cases were tried and the parties’ rights and obligations were determined by partial summary judgments which were not made final judgments under C.R.C.P. 54(b), appellants could have, and indeed should have, moved for a new trial or an altered or amended judgment under this rule and where they did not timely file such motions and allow the trial court an opportunity to review its possible errors, appellants were barred on appeal from asserting error by the trial court. Manka v. Martin, 200 Colo. 260, 614 P.2d 875 (1980), cert. denied, 450 U.S. 913, 101 S. Ct. 1354, 67 L. Ed. 2d 338 (1981). Repeated assurances by the court clerk that the defendant’s motion to alter and amend the judgment had been forwarded to the presiding judge when, in fact, no notification of said motion had been given to the judge did not constitute an “extreme situation” allowing relief under C.R.C.P. 60(b)(5). Sandoval v. Trinidad Area Health Ass’n, 752 P.2d 1062 (Colo. App. 1988). Court properly denied motion to amend judgment in malpractice claim against attorney as defendant is not entitled to set-off fees which would otherwise have been collected from original action. McCafferty v. Musat, 817 P.2d 1039 (Colo. App. 1990). Where notice of entry of judgment is mailed to only one party in contravention of C.R.C.P. 58(a), the time provided by section (a) of this rule for filing a post-trial motion commences from the date that the notice is mailed by that party to the party subsequently moving for post-trial relief. Padilla v. D.E. Frey & Co., Inc., 939 P.2d 475 (Colo. App. 1997). Trial court’s property division in dissolution of marriage action reflects no abuse of discretion based on husband’s economic circumstances, the characterization of property as marital or separate, or wife’s depletion of marital property, where trial court did its best in dividing marital property based only on wife’s evidence since husband elected not to participate in the action. In re Eisenhuth, 976 P.2d 896 (Colo. App. 1999). Applied in Hughes v. Worth, 162 Colo. 429, 427 P.2d 327 (1967); Bittle v. CAM-Colo., LLC, 2012 COA 93, 318 P.3d 65. III. On Initiative of Court. The trial court has an immemorial right to grant a new trial whenever, in its opinion, the justice of the particular case so requires. Brncic v. Metz, 28 Colo. App. 204, 471 P.2d 618 (1970). New trials are not abridged or disfavored by the new rules. The judge may even grant one on his own initiative without a motion. Singer v. Chitwood, 126 Colo. 173, 247 P.2d 905 (1952). Judge may grant new trial even if party’s motion is insufficient. Where plaintiffs filed a motion for new trial in apt time on the ground of an erroneous instruction to the jury, the fact that the court granted a new trial on a portion of motion which correctly stated the law and hence was insufficient to justify granting the new trial did not support claim that the court erroneously acted upon its own initiative under this rule where the instruction was patently erroneous in other respects. Callaham v. Slavsky, 153 Colo. 291, 385 P.2d 674 (1963). C.R.C.P. 51, does not apply to trial court when it sua sponte grants new trial. The purposes of the contemporaneous objection requirement of C.R.C.P. 51 are not violated when the trial court acts on its own initiative to order a new trial under this rule. First Nat’l Bank v. Campbell, 198 Colo. 344, 599 P.2d 915 (1979). Where status of minor children at stake, court remanded for findings. While a motion may fail to comply strictly with the requirements of this rule when the status of minor children is at stake, a court of appeals will notice error in the trial court proceedings and remand for findings. In re Brown, 626 P.2d 755 (Colo. App. 1981). An order enlarging the time within which to file a motion for judgment n.o.v. is without effect in view of the provisions of C.R.C.P. 6(b). Mumm v. Adam, 134 Colo. 493, 307 P.2d 797 (1957). C.R.C.P. 6(b) provides that a court may not extend the time for taking any action under this rule. Ross v. Arrow Mfg. Co., 134 Colo. 530, 307 P.2d 196 (1957). District court exceeded its jurisdiction by ordering, sua sponte, a new trial on all the issues of marriage dissolution proceeding because the district court acted outside its time limits mandated by section (c) of this rule to initiate such post-trial relief and failed to state adequate grounds for a new trial as required by said rule. Koch v. District Court, Jefferson County, 948 P.2d 4 (Colo. 1997). IV. Grounds for New Trial. A. In General. Annotator’s note. Since former subsection (a)(1) (now (d)(1)) of this rule is similar to § 237 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule. Use of “shall” in section (a). Prior to 1985, former section (a) of this rule specified that the memorandum brief “shall be filed with the motion”. There is a presumption that the word “shall” when used in a statute or rule is mandatory. Anlauf Lumber Co. v. West-Fir Studs, Inc., 35 Colo. App. 119, 531 P.2d 980 (1974), aff’d, 190 Colo. 298, 546 P.2d 487 (1976) (decided prior to the 1985 amendment). This rule specifies that an application for new trial, under certain circumstances, “shall be supported by affidavit”, and there is a presumption that the word “shall” when used in a statute or rule is mandatory. Park Stations, Inc., v. Hamilton, 38 Colo. App. 216, 554 P.2d 311 (1976); In re Fleet, 701 P.2d 1245 (Colo. App. 1985). Notwithstanding the affidavit requirement in section (d) of this rule, C.R.E. 606(b) acts to preclude juror affidavits as a basis for seeking post-trial relief, unless the exceptions in that rule apply. Stewart v. Rice, 47 P.3d 316 (Colo. 2002). Issues must be preserved for consideration on appeal. Where a party fails to preserve issues for review in his motion for a new trial or in his motion to amend judgment, the court will not consider them on appeal. Hawkins v. Powers, 635 P.2d 915 (Colo. App. 1981). Court not required to act in absence of affidavit. Upon receipt of a motion for a new trial on those grounds which, according to the rules, must be supported by affidavit, the court is not required to act in the absence of such affidavit. Park Stations, Inc., v. Hamilton, 38 Colo. App. 216, 554 P.2d 311 (1976). A motion to alter or amend judgment, or for new trial, does not in itself amount to a memorandum brief. Zehnder v. Thirteenth Judicial Dist. Court, 193 Colo. 502, 568 P.2d 457 (1977) (decided prior to the 1985 amendment). Where events forming the basis for the granting of a new trial occurred in the presence of the court and during the trial, the trial judge obviously had sufficient first hand knowledge to determine whether there was adequate ground for a new trial under this rule, and, under such circumstances, the absence of an affidavit does not deprive the court of the power to grant relief. Park Stations, Inc. v. Hamilton, 38 Colo. App. 216, 554 P.2d 311 (1976). Where a motion for a new trial is based on misconduct of counsel which occurred in the presence of the court, the court may act upon and grant such motion even if no affidavit is submitted. Park Stations, Inc. v. Hamilton, 38 Colo. App. 216, 554 P.2d 311 (1976). New trial may be granted upon misconduct of counsel. The granting of a new trial may be founded upon counsel’s misstatements of fact, or on his statements of fact which have not been introduced in or established by evidence, or on a finding that counsel has made a statement or argument appealing to the emotions and prejudices of the jury. Park Stations, Inc. v. Hamilton, 38 Colo. App. 216, 554 P.2d 311 (1976). A new trial is not granted for misconduct of counsel as a disciplinary measure, but to prevent a miscarriage of justice. Park Stations, Inc. v. Hamilton, 38 Colo. App. 216, 554 P.2d 311 (1976). Fact that the court found defendant’s counsel to be guilty of misconduct during the course of the trial for more reasons than those alleged by plaintiff does not put the court in the position of acting on its own initiative in granting motion for new trial. Park Stations, Inc. v. Hamilton, 38 Colo. App. 216, 554 P.2d 311 (1976). Filing of motion tolls time for filing notice of appeal. The filing of a motion to alter or amend a judgment tolls the running of the time for filing notice of appeal. Valenzuela v. Mercy Hosp., 34 Colo. App. 5, 521 P.2d 1287 (1974). Affidavit filed after time allowed is not to be considered. An affidavit filed in support of a motion for a new trial without leave of the court, and after the time limited by a previous order, is not to be considered. Denver & R. G. R. R. v. Heckman, 45 Colo. 470, 101 P. 976 (1909). Sufficiency of affidavit required. An affidavit merely stating what the opposing counsel had directed his client to do, but not showing that in fact anything was done pursuant to the direction, is insufficient to convict the party of misconduct. Denver & R. G. R. R. v. Heckman, 45 Colo. 470, 101 P. 976 (1909). The requirement of an affidavit presupposes that the affiant has firsthand information rather than possessing only hearsay. Hansen v. Dillon, 156 Colo. 396, 400 P.2d 201 (1965). The reception of oral testimony at the time the motion for new trial is under consideration is a matter within the discretion of the trial court. The record in the instant case does not suggest an abuse of this discretion. Burnham v. Grant, 24 Colo. App. 131, 134 P. 254 (1913). Hearsay and conclusory allegations are insufficient under rule. Peoples Natural Gas Div. v. Pub. Utils. Comm’n, 626 P.2d 159 (Colo. 1981). B. Irregularity in Proceedings. Ruling on motion for new trial on ground of misconduct of witness is within discretion of trial court. Hicks v. Cramer, 85 Colo. 409, 277 P. 299 (1929); Simon v. Williams, 123 Colo. 505, 232 P.2d 181 (1951). Ruling will not be disturbed in absence of showing that the court’s discretion was abused. Hicks v. Cramer, 85 Colo. 409, 277 P. 299 (1929). For when discretion is allowed, see Simon v. Williams, 123 Colo. 505, 232 P.2d 181 (1951). The finding of the court cannot be disturbed unless it was manifestly against the weight of the testimony. Liutz v. Denver City Tramway Co., 54 Colo. 371, 131 P. 258 (1913). Objection on ground of misconduct of witness must be made before verdict. A party to a trial who, although knowing of apparent misconduct on the part of a witness, remains silent until after the verdict has gone against him, may not then assign such misconduct as a ground for a new trial. Hicks v. Cramer, 85 Colo. 409, 277 P. 299 (1929). Conduct of witness held insufficient to warrant reversal. The fact that a witness was seen in conversation with a juror during a recess of the court, is insufficient to warrant a reversal of the judgment, where there was nothing to indicate any attempt to influence the juror. Hicks v. Cramer, 85 Colo. 409, 277 P. 299 (1929). Giving cigars to jurors after verdict is not grounds for new trial. The fact that the attorney of the successful party treated four of the jurors to cigars, after the verdict, merely in a way of civility, and without any design or forethought, held no ground to vacate the verdict, though the court suggested that, upon ethical grounds the act of the attorney was indiscreet. Liutz v. Denver City Tramway Co., 54 Colo. 371, 131 P. 258 (1913). Improper remarks by employees of a party to jury may be grounds for new trial. If persons employed by a suitor hang about the purlieus of the court, mingle with those summoned as jurors, converse with them touching causes in which the suitor is concerned, and by flattery, ridicule, and like insidious means, endeavor to improperly influence them, a verdict shown to have been influenced by such practices should be unhesitatingly vacated. Liutz v. Denver City Tramway Co., 54 Colo. 371, 131 P. 258 (1913). Improper remarks to jurors which manifestly had no effect upon their deliberations are not ground for a new trial. Liutz v. Denver City Tramway Co., 54 Colo. 371, 131 P. 258 (1913). Seeing of excluded exhibit by jury may be grounds for new trial. A mistake or inadvertence whereby the jury was permitted to have access to an exhibit which had been excluded from consideration was an irregularity in the proceedings, and under the provisions of this rule, the proper method of presenting it in a motion for a new trial is to support and file an affidavit with the motion. Maloy v. Griffith, 125 Colo. 85, 240 P.2d 923 (1952). If trial court instructs jury on improper closing remarks, there are no grounds for new trial. Where remarks in closing argument are improper but the trial court immediately and subsequently properly instructs, the reviewing court must presume that the jury followed the trial court’s instructions, such not constituting grounds for new trial. Candelaria v. People, 177 Colo. 136, 493 P.2d 355 (1972). Denial of a motion for a continuance because of the unavoidable absence of a party during litigation is grounds for the granting of a new trial because the attendance of a litigant is necessary for a fair presentation of his case. Gonzales v. Harris, 189 Colo. 518, 542 P.2d 842 (1975). For deficiency in trial record which requires reversal of judgment but not new trial, see Moore v. Fischer, 31 Colo. App. 425, 505 P.2d 383 (1972), aff’d, 183 Colo. 392, 517 P.2d 458 (1973). No relief under this rule for malpractice of party’s own attorney. In re Jaeger, 883 P.2d 577 (Colo. App. 1994). Untimely filing of motion contending irregularity in proceedings fails because the court was deprived of jurisdiction after the time allowed by section (a) had run. When plaintiff did not argue that the trial court erred in ruling her motion under this rule was untimely, she was considered to have abandoned the issue of timeliness. In re McSoud, 131 P.3d 1208 (Colo. App. 2006). C. Misconduct of Jury. Annotator’s note. Since subsection (a)(2) (now (d)(2)) of this rule is similar to § 237 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule. Disposition of motion is within discretion of trial court. Disposition of a motion for a new trial based on the ground of misconduct of jurors is within the sound discretion of the trial court. Denver Alfalfa Milling & Prods. Co. v. Erickson, 77 Colo. 583, 239 P. 17 (1925). Verdict set aside where misconduct revealed. Jury verdict will be set aside when juror’s affidavit revealed certain misconduct on the part of one or more of the jurors. Santilli v. Pueblo, 184 Colo. 432, 521 P.2d 170 (1974). Ruling on motion will not be disturbed on review, unless the discretion has been abused or the ruling is manifestly against the weight of the evidence. Denver Alfalfa Milling & Prods. Co. v. Erickson, 77 Colo. 583, 239 P. 17 (1925). Test of misconduct is capacity of influencing result. The test for determining whether a new trial will be granted because of the misconduct of jurors or the intrusion of irregular influences is whether such matters could have a tendency to influence the jury in arriving at its verdict in a manner inconsistent with the legal proofs and the court’s charge. If the irregular matter has that tendency on the face of it, a new trial should be granted without further inquiry as to its actual effect. The test is not whether the irregular matter actually influenced the result, but whether it had the capacity of doing so. Butters v. Wann, 147 Colo. 352, 363 P.2d 494 (1961); T.S. v. G.G., 679 P.2d 118 (Colo. App. 1984); People v. Wadle, 77 P.3d 764 (Colo. App. 2003), aff’d, 97 P.3d 932 (Colo. 2004). Sympathy for a plaintiff’s injured condition is not tantamount to the passion or prejudice necessary to overturn a jury verdict. Whitlock v. Univ. of Denver, 712 P.2d 1072 (Colo. App. 1985), rev’d on other grounds, 744 P.2d 54 (Colo. 1987). Test is determined as a matter of law. It is not the province of the court to speculate, conjecture or determine what or how much effect upon a verdict the gross misconduct of a juror or jurors may in fact have in a particular case. While a correct determination might be possible in some cases, the inquiry would be impractical and fruitless in many cases and in all cases contain an element of speculation. The proper function of the court is to hear the facts of the alleged misconduct and to determine as a matter of law the effect reasonably calculated to be produced upon the minds of the jury by such misconduct. Butters v. Wann, 147 Colo. 352, 363 P.2d 494 (1961); People v. Wadle, 77 P.3d 764 (Colo. App. 2003), aff’d, 97 P.3d 932 (Colo. 2004). A new trial on all issues, not the granting of remittitur of the verdict, must be ordered when a trial court makes a finding that an excessive jury verdict resulted from bias, prejudice, or passion. Whitlock v. Univ. of Denver, 712 P.2d 1072 (Colo. App. 1985), rev’d on other grounds, 744 P.2d 54 (Colo. 1987). Movant seeking to set aside verdict based upon jury misconduct must establish fact of improper communication and as a result thereof the movant was prejudiced. Ravin v. Gambrell by and through Eddy, 788 P.2d 817 (Colo. 1990). A party seeking a new trial on the basis of a jury’s improper exposure to extraneous information must establish that the information was revealed to the jury and that it had the capacity to influence the verdict. Destination Travel, Inc. v. McElhanon, 799 P.2d 454 (Colo. App. 1992); Stevens v. Humana of Delaware, Inc., 832 P.2d 1076 (Colo. App. 1992). Misconduct of a juror, if known to counsel, should be made the ground of objection at the time, and before the cause is submitted. If first suggested in the motion for a new trial it is within the discretion of the court to disregard it. Denver City Tramway Co. v. Armstrong, 21 Colo. App. 640, 123 P. 136 (1912). The reason for a supporting affidavit where there is an accusation of juror misconduct is to require the movant to prove his good faith and, by particularizing, demonstrate that his serious allegation of juror misconduct is based on knowledge, not suspicion or mere hope. Cawthra v. City of Greeley, 154 Colo. 483, 391 P.2d 876 (1964). Motion unsupported by affidavit denied summarily. A motion for new trial based on alleged juror misconduct unsupported by affidavit, and lacking any indication that the movant had a legal excuse for its failure to do so, should be summarily denied. Cawthra v. City of Greeley, 154 Colo. 485, 391 P.2d 876 (1964); Hansen v. Dillon, 156 Colo. 396, 400 P.2d 201 (1965). Juror affidavit revealing that some jury members had stated that they had learned of codefendant’s plea of guilty was insufficient to impeach jury verdict when it was determined from questioning jurors that they learned of plea only after completion of their deliberations. People v. Thornton, 712 P.2d 1095 (Colo. App. 1985). Only the affidavit of losing counsel, and itself largely hearsay and conclusionary, is insufficient. Hansen v. Dillon, 156 Colo. 396, 400 P.2d 201 (1965). A quotient verdict as such is invalid. A quotient verdict, as such, is invalid, but where there is no antecedent agreement, or if after the quotient is ascertained, the jury proceeds to discuss and consider the propriety of the rendition of a verdict for an amount equal to the quotient, the verdict is good. City of Colo. Springs v. Duff, 15 Colo. App. 437, 62 P. 959 (1900); City & County of Denver v. Talarico, 99 Colo. 178, 61 P.2d 1 (1936). Quotient verdict will be permitted to stand if it is an expression of deliberation. Quotient verdict, shown to have been afterwards voted upon and accepted by the jury as a legitimate expression of their deliberations, will be permitted to stand upon a showing of very little proof in this direction. Pawnee Ditch & Imp. Co. v. Adams, 1 Colo. App. 250, 28 P. 662 (1891); Greeley Irrigation Co. v. Von Trotha, 48 Colo. 12, 108 P. 985 (1910). Impeachment of a verdict on grounds which delve into the mental processes of the jury deliberation is not permitted. Santilli v. Pueblo, 184 Colo. 432, 521 P.2d 170 (1974); Rome v. Gaffrey, 654 P.2d 333 (Colo. App. 1982). Extrajudicial investigation on inadmissible matters was manifestly improper. The question of the deceased’s contributory negligence and his intoxication at the time of the accident was material. The extrajudicial investigation made during the course of the trial by the juror of the deceased’s drinking habits, intoxication on other occasions, and the revocation of his driver’s license, matters which had been specifically declared incompetent and inadmissible by the court, is misconduct as a matter of law the tendency of which is to influence the mind of the juror and for which a new trial should have been granted. In such cases the court should not consider whether the verdict was or was not influenced by the petitioner. The conduct complained of is so manifestly improper that there is but one course open. Butters v. Wann, 147 Colo. 352, 363 P.2d 494 (1961). A new trial is not automatically required whenever a jury is exposed to extraneous information during trial or deliberations. Stevens v. Humana of Delaware, Inc., 832 P.2d 1076 (Colo. App. 1992). Extraneous information concerning the symptoms of a disease listed on a grocery bag obtained by a juror did not require a new trial. Stevens v. Humana of Delaware, Inc., 832 P.2d 1076 (Colo. App. 1992). D. Accident or Surprise. Annotator’s note. Since subsection (a)(3) (now (d)(3)) of this rule is similar to § 237 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule. Surprise must be called to attention of court at trial. A party cannot avail himself of a motion for a new trial on the ground of surprise unless he calls the attention of the court to the matter at the time when it occurs and asks for proper relief. It is too late for him to manifest his surprise for the first time after the cause has been submitted to the jury and a verdict rendered against him. Outcalt v. Johnston, 9 Colo. App. 519, 49 P. 1058 (1897); Agnew v. Mathieson, 26 Colo. App. 59, 140 P. 484 (1914). Untimely filing of motion contending “accident or surprise” fails because the court was deprived of jurisdiction after the time allowed by section (a) had run. When plaintiff did not argue that the trial court erred in ruling her motion under this rule was untimely, she was considered to have abandoned the issue of timeliness. In re McSoud, 131 P.3d 1208 (Colo. App. 2006). E. Newly Discovered Evidence. Annotator’s note. Since subsection (a)(4) (now (d)(4)) of this rule is similar to § 237 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule. Motions for new trial on ground of newly discovered evidence are viewed with suspicion. Sebold v. Rieger, 26 Colo. App. 209, 142 P. 201 (1914); Eachus v. People, 77 Colo. 445, 236 P. 1009 (1925); Gasper v. People, 83 Colo. 341, 265 P. 97 (1928). Granting of new trial is a matter of trial court’s discretion. Whether to grant a new trial because of newly discovered evidence is a matter that lies within the sound discretion of the trial court. Am. Nat’l Bank v. Christensen, 28 Colo. App. 501, 476 P.2d 281 (1970); Meyer v. Schwartz, 638 P.2d 821 (Colo. App. 1981). In the absence of abuse of discretion the judge’s decision on the merits of a motion for new trial will not be disturbed. Bushner v. Bushner, 141 Colo. 283, 348 P.2d 153 (1959); Hudson v. Am. Founders Life Ins. Co., 151 Colo. 54, 377 P.2d 391 (1962). New trial is to be granted only if the newly discovered evidence, if received, would probably change the result. Crespin v. Largo Corp., 698 P.2d 826 (Colo. App. 1984), aff’d, 727 P.2d 1098 (Colo. 1986). The following requirements are essential to sustain a motion for new trial on the grounds of newly discovered evidence: (1)The evidence could not have been discovered in the exercise of reasonable diligence and produced at the trial; (2)the evidence is material to some issue before the court under the pleadings; (3)if received, the evidence would probably change the result. Kennedy v. Bailey, 169 Colo. 43, 453 P.2d 808 (1969); Am. Nat’l Bank v. Christensen, 28 Colo. App. 501, 476 P.2d 281 (1970); C.K.A. v. M.S., 695 P.2d 785 (Colo. App. 1984), cert. denied, 705 P.2d 1391 (Colo. 1985); Durbin v. Bonanza Corp., 716 P.2d 1124 (Colo. App. 1986); People v. Distel, 759 P.2d 654 (Colo. 1988). Three factors affecting decision under subsection (d)(4), as adopted in cases interpreting this rule, are not discrete items that lend themselves to mechanistic application, but rather are closely interrelated and require the exercise of a prudential judgment informed by considerations of fundamental fairness. Aspen Skiing Co. v. Peer, 804 P.2d 166 (Colo. 1991). For necessity of evidence being sufficient to change result, see Colo. Springs & Interurban Ry. v. Fogelsong, 42 Colo. 341, 94 P. 356 (1908); Specie Payment Gold Mining Co. v. Kirk, 56 Colo. 275, 139 P. 21 (1914); Lanham v. Copeland, 66 Colo. 27, 178 P. 562 (1919); Wiley v. People, 71 Colo. 449, 207 P. 478 (1922); Eachus v. People, 77 Colo. 445, 236 P. 1009 (1925); Heishman v. Hope, 79 Colo. 1, 242 P. 782 (1925); Warshauer Sheep & Wool Co. v. Rio Grande State Bank, 81 Colo. 463, 256 P. 21 (1927); Trinidad Creamery Co. v. McDonald, 82 Colo. 328, 259 P. 1028 (1927); City of Ft. Collins v. Smith, 84 Colo. 511, 272 P. 6 (1928); Schlessman v. Brainard, 104 Colo. 514, 92 P.2d 749 (1939). Party cannot reframe issues where facts were known at time of trial. No issue of mental competency was raised in the probate court during the trial of this action, despite the fact that counsel for plaintiffs were aware of the fact that an issue of competency had been raised in the federal court and could have been made in the probate court. In legal effect, the motions for new trial were insufficient and made no showing of the discovery of any new evidence which was pertinent to any issue tried in the probate court. Actually, the plaintiffs attempt to reframe the issues and inject into the proceedings a complete new theory upon which they elected not to rely at the time of the trial. Kennedy v. Bailey, 169 Colo. 43, 453 P.2d 808 (1969). A motion for a new trial on the ground of newly discovered evidence will not be granted where counsel seeks to advance at a second trial a new theory based on different evidence which was available during the first trial. People in Interest of P.N., 663 P.2d 253 (Colo. 1983). A new trial is not to be awarded for the discovery of evidence merely cumulative. Griffin v. Carrig, 23 Colo. App. 313, 128 P. 1126 (1913); Hudson v. Am. Founders Life Ins. Co., 151 Colo. 54, 377 P.2d 391 (1962). It is error to grant a new trial on the ground of newly discovered evidence, when such evidence would be immaterial. Warshauer Sheep & Wool Co. v. Rio Grande State Bank, 81 Colo. 463, 256 P. 21 (1927). Newly discovered evidence to justify the granting of a new trial must be relevant and material. Barton v. Laws, 4 Colo. App. 212, 35 P. 284 (1894). New trial will not be granted for new evidence which is merely impeaching or discrediting. The general rule is that a new trial will not be granted for new evidence which is merely impeaching or discrediting. Hence, impeaching evidence which is merely cumulative of what might have been produced at the trial is not a sufficient ground for a new trial. Trinidad Creamery Co. v. McDonald, 82 Colo. 328, 259 P. 1028 (1927). Denial of motion for new trial upheld where newly discovered evidence allegedly demonstrating that plaintiff perjured himself at trial could have been obtained through reasonable diligence more than two years prior to trial. Aspen Skiing Co. v. Peer, 804 P.2d 166 (Colo. 1991). Denial of motion for new trial was proper where defendant was not denied access to her bank balance and account activity and could, therefore, have discovered the canceled checks showing payment of the disputed insurance premiums. CNA Ins. Co. v. Berndt, 839 P.2d 492 (Colo. App. 1992). Application for new trial should be supported by affidavit. In an application for a new trial on the ground of newly discovered evidence, the application should be supported by an affidavit of the newly discovered witness, stating the facts to which he will testify, and if such affidavit is not attached to the application, there should be a showing that it was impossible or impracticable to secure the same. Wiley v. People, 71 Colo. 449, 207 P. 478 (1922). Affidavit must show that by exercise of reasonable diligence such evidence could not have been produced. If it does not appear from the affidavits in support of a motion for new trial, on the ground of newly discovered evidence, that by the exercise of reasonable diligence such evidence could not have been produced at the trial, the showing is insufficient. Outcalt v. Johnston, 9 Colo. App. 519, 49 P. 1058 (1897). The affidavits for a new trial on the ground of newly discovered evidence must show the efforts made by the applicant to locate the additional witnesses proposed to be examined, and must exclude all inference of delay or neglect on the part of the applicant. Evidence as to matters not controverted on the trial will not suffice. Sebold v. Rieger, 26 Colo. App. 209, 142 P. 201 (1914). For denial of new trial because party made no effort to present evidence, see Sall v. Sall, 173 Colo. 464, 480 P.2d 576 (1971). Where application is based upon the recent discovery of a document, a copy thereof should be set forth, or at least the substance of it shown; otherwise its pertinency as evidence does not appear. Colo. & S. Ry. v. Breniman, 22 Colo. App. 1, 125 P. 855 (1912). The affidavit of counsel, based upon information and belief, of what a witness will testify is insufficient to secure a new trial on the ground of newly discovered evidence. Cole v. Thornburg, 4 Colo. App. 95, 34 P. 1013 (1893). After reversal, initially successful party may move for new trial. After reversal by the supreme court the party originally successful in the trial court can file a motion for new trial on the ground of newly discovered evidence, and only on that ground. To hold otherwise would deprive a party of an absolute right he would have had if the trial judge had made no error. Bushner v. Bushner, 141 Colo. 283, 348 P.2d 153 (1959). Where the contention is that perjury has been committed, the motion for a new trial must be grounded upon newly discovered evidence. Buchanan v. Burgess, 99 Colo. 307, 62 P.2d 465 (1936); Schlessman v. Brainard, 104 Colo. 514, 92 P.2d 749 (1939). Motion for new trial held properly overruled. In an action for damages resulting from an automobile accident, the contention of defendant that a new trial should have been granted on the ground of newly discovered evidence was considered and overruled. Morgan v. Gore, 96 Colo. 508, 44 P.2d 918 (1935). Newly discovered evidence must be credible. In order for newly discovered evidence to serve as a basis for granting a new trial, it must be credible. Crespin v. Largo Corp., 698 P.2d 826 (Colo. App. 1984), aff’d, 727 P.2d 1098 (Colo. 1986). Although determining the credibility of a witness is normally the function of the trier of fact, when dealing with a motion for new trial based on newly discovered evidence, the trial court necessarily must include a determination of credibility in its evaluation of whether the new evidence would, if received, change the result already reached. Crespin v. Largo Corp., 698 P.2d 826 (Colo. App. 1984), aff’d, 727 P.2d 1098 (Colo. 1986). Denial of motion for new trial upheld. Phillips v. Monarch Recreation Corp., 668 P.2d 982 (Colo. App. 1983); Gilmore v. Rubeck, 708 P.2d 486 (Colo. App. 1985). Standards set forth in subsection (a)(4) (now (d)(4)) are not unduly rigorous when applied to evidence discovered after an order for summary judgment has been entered. DuBois v. Myers, 684 P.2d 940 (Colo. App. 1984). F. Excessive or Inadequate Damages. Annotator’s note. Since subsection (a)(5) (now (d)(5)) of this rule is similar to § 237 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule. Excessive damages are legitimate grounds for granting a motion for new trial. Leo Payne Pontiac, Inc. v. Ratliff, 29 Colo. App. 386, 486 P.2d 477 (1971), modified, 178 Colo. 361, 497 P.2d 997 (1972). Award of inadequate damages is a proper ground for the granting of a new trial. Roth v. Stark Lumber Co., 31 Colo. App. 121, 500 P.2d 145 (1972). New trial may be had as to single issue of damages. Where damages assessed by verdict were grossly inadequate and there was no need of another trial on other issues raised in a negligence action, new trial would be granted as to damages only. Whiteside v. Harvey, 124 Colo. 561, 239 P.2d 989 (1951). When an award of damages is excessive but liability is clear, it may be permissible to order a new trial limited to the issue of damages only. Marks v. District Court, 643 P.2d 741 (Colo.), cert. denied, 458 U.S. 1107, 102 S. Ct. 3486, 73 L. Ed. 2d 1368 (1982). Excessive verdict based on bias requires new trial. Where the trial judge makes a finding that the excessive jury verdict resulted from bias, prejudice, and passion, firmly established precedent requires that a new trial on all issues be granted. Marks v. District Court, 643 P.2d 741 (Colo.), cert. denied, 458 U.S. 1107, 102 S. Ct. 3486, 73 L. Ed. 2d 1368 (1982). Where the issue of liability is properly determined, but the jury has failed in its function adequately to assess the compensation required, it is mandatory that the court order a new trial on the issue of damages alone. Brncic v. Metz, 28 Colo. App. 204, 471 P.2d 618 (1970). Court may order new trial on all issues where motion limited to damages. A party by moving for a new trial on the question of damages only cannot restrict the judge so as to prevent the exercise of sound judicial discretion. Dale v. Safeway Stores, Inc., 152 Colo. 581, 383 P.2d 795 (1963). Where jury refuses to award compensatory damages, new trial on damages alone is warranted. Where the jury failed in its function in rendering a verdict by refusing to recognize the undisputed facts concerning plaintiff’s injuries and to award him compensatory damages to which he was entitled, a new trial on the issue of damages only is warranted. Kistler v. Halsey, 173 Colo. 540, 481 P.2d 722 (1971). New trial on the issue of damages only is warranted when there are undisputed facts as to injuries. In an action by a bicyclist seeking damages for injuries suffered as a result of an intersection pickup truck-bicycle collision, where the verdict, considering the undisputed evidence of severe multiple physical injuries sustained by plaintiff, was manifestly inadequate, indicating that the jury disregarded the trial court’s instructions on damages, held a new trial on issue of damages only is warranted since the jury failed in its function to render a true verdict by refusing to recognize the undisputed facts concerning plaintiff’s injuries and to award him compensatory damages to which he was entitled. Kistler v. Halsey, 173 Colo. 540, 481 P.2d 722 (1971). Plaintiff’s participation in new trial on damages alone waives other objections. Where plaintiffs, dissatisfied with verdict on first trial, file a motion for additur or a new trial on the question of damages only and the trial court grants a new trial on all issues, the plaintiffs by voluntarily participating in the second trial as ordered by the trial court waive any other error occurring in first trial. Dale v. Safeway Stores, Inc., 152 Colo. 581, 383 P.2d 795 (1963). Verdict must be manifestly inadequate to be set aside. It is an abuse of discretion on the part of the court to set aside the verdict of the jury and grant a new trial solely on the ground of inadequacy of the verdict unless, under the evidence, it can be definitely said that the verdict is grossly and manifestly inadequate, or unless the amount thereof is so small as to clearly and definitely indicate that the jury neglected to take into consideration evidence of pecuniary loss or were influenced either by prejudice, passion or other improper considerations. Lehrer v. Lorenzen, 124 Colo. 17, 233 P.2d 382 (1951); King v. Avila, 127 Colo. 538, 259 P.2d 268 (1953); DeMott v. Smith, 29 Colo. App. 531, 486 P.2d 451 (1971). Where plaintiff’s evidence showed damages considerably in excess of the original jury award and the trial court could properly determine that the jury disregarded the instructions or ignored the evidence, there is no error in granting a new trial on the issue of damages. Thorpe v. City & County of Denver, 30 Colo. App. 284, 494 P.2d 129 (1971). Jury damage award set aside on basis of inadequacy when evidence was undisputed with respect to the existence and nature of the injuries sustained, and the jury failed to award any damages for noneconomic losses. Martinez v. Shapland, 833 P.2d 837 (Colo. App. 1992). Retrial on damages only was ordered because of the inconsistency in the damage award of the jury. The award of $3,000 for economic losses for the treatment and alleviation of pain is inconsistent with the award of zero dollars for noneconomic damages. Kepley v. Kim, 843 P.2d 133 (Colo. App. 1992). When a new trial will be granted for excessive or inadequate damages rests in the discretion of the trial court, in cases where there is no legal measure of damages, or where the correctness of the result is not determinable by any definite and precise rule. Clark v. Aldenhoven, 26 Colo. App. 501, 143 P. 267 (1914). The court of review will not interfere where there is evidence to support the verdict. Clark v. Aldenhoven, 26 Colo. App. 501, 143 P. 267 (1914). Neither the Colorado supreme court nor any other appellate tribunal stands in as good a position as the trial court to review the relationship between an award of exemplary damages and the purposes these damages are to serve and, absent a clear abuse of discretion, the trial court’s determination in this regard will not be disturbed on review. eo Payne Pontiac, Inc. v. Ratliff, 178 Colo. 361, 497 P.2d 997 (1972). Trial court may give prevailing party option to remit excessive damages. Following a motion for a new trial based on excessive damage, the trial judge may grant the motion for a new trial, but at the same time give the prevailing party the option of remitting that portion of the jury’s award which is deemed to be excessive, or facing a new trial on damages. If the prevailing party thereafter remits this portion of the award, the trial court would thereupon deny the motion for a new trial and enter a final judgment. Leo Payne Pontiac, Inc. v. Ratliff, 178 Colo. 361, 497 P.2d 997 (1972); McCrea & Co. Auctioneers, Inc. v. Dwyer Auto Body, 799 P.2d 394 (Colo. App. 1989). A trial court has the power to grant a new trial under this rule or, in the alternative, to deny the new trial on the condition that the plaintiff will agree to a remittitur of the amount of the damages found by the court to be excessive. Marks v. District Court, 643 P.2d 741 (Colo.), cert. denied, 458 U.S. 1107, 102 S. Ct. 3486, 73 L. Ed. 2d 1368 (1982). Option of remittitur or new trial permissible where damages manifestly excessive. The option of remittitur or new trial is permissible in cases where the trial court considers the damages manifestly excessive, subsection (a)(5) (now (d)(5)), but cannot conclude that the damages were a product of bias, prejudice, or passion. Burns v. McGraw-Hill Broadcasting Co., 659 P.2d 1351 (Colo. 1983); E-470 Pub. Hwy. Auth. v. Jagow, 30 P.3d 798 (Colo. App. 2001), aff’d, 49 P.3d 1151 (Colo. 2002). Remittitur appropriate where evidence did not show that damages for fraud and those for breach of contract were separate and distinct, nor that damages for business interference were greater than or different from lost profits resulting from the breach. McCrea & Co. Auctioneers, Inc. v. Dwyer Auto Body, 799 P.2d 394 (Colo. App. 1989). Remittitur is not sustainable where the amount of damages awarded is supported by the court’s instruction and the evidence presented or, alternatively, where the plaintiff is not offered an opportunity to refuse the modified amount and request a new trial. Belfor USA Group v. Rocky Mtn. Caulking & Waterproofing, 159 P.3d 672 (Colo. App. 2006). Trial court must enter findings to support order of remittitur. Belfor USA Group v. Rocky Mtn. Caulking & Waterproofing, 159 P.3d 672 (Colo. App. 2006). New trial granted where trial court erred in damages instruction. Walton v. Kolb, 31 Colo. App. 95, 500 P.2d 149 (1972). G. Error in Law. A judicial admission can be made in closing argument. Counsel’s statements that plaintiff had incurred some physical injury in the accident must be considered a binding judicial admission and a new trial ordered on the issue of damages. Larson v. A.T.S.I., 859 P.2d 273 (Colo. App. 1993). V. Grounds for Judgment Notwithstanding Verdict. Annotator’s note. Since subsection (a)(6) (now (e)(1)) of this rule is similar to § 237 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule. The weight of evidence does not depend upon its volume or the number of witnesses. Jurors exercise a large discretion in judging of the credibility of witnesses, and separating the true from the false. Their conclusions will not be disturbed, unless the verdict manifests bias, prejudice, or a wanton disregard of their duties and obligation by the jurors. Clark v. Aldenhoven, 26 Colo. App. 501, 143 P. 267 (1914). As a general rule, when the evidence is conflicting the trial court will refuse a new trial even though there may be a slight preponderance against the verdict. Clark v. Aldenhoven, 26 Colo. App. 501, 143 P. 267 (1914). The trial court’s action will not be reviewed unless a manifest abuse of discretion appears. Clark v. Aldenhoven, 26 Colo. App. 501, 143 P. 267 (1914). Where the verdict of a jury is manifestly against the weight of the evidence, it will be set aside by the appellate court. Denver & R. G. R. R. v. Peterson, 30 Colo. 77, 69 P. 578 (1902); McGraw v. Kerr, 23 Colo. App. 163, 128 P. 870 (1912). Where the record fails to disclose any satisfactory evidence as to the real merits of the controversy, the judgment will be reversed and the cause remanded for a new trial. Scott v. Conrad, 24 Colo. App. 452, 135 P. 135 (1913). In actions for tort a verdict will not so readily be vacated as against the weight of evidence, as in actions ex contractu. A verdict will not be set aside either in the trial court or the court of review unless it is so manifestly against the weight of evidence as to warrant a presumption that the jury misunderstood the evidence or misconstrued its effect, or were influenced by improper motives. Clark v. Aldenhoven, 26 Colo. App. 501, 143 P. 267 (1914). VI. Effect of Granting New Trial. To grant a new trial decides no one’s rights finally, but only submits them to another jury, with an opportunity to each party to bring forward better evidence if he can, and with opportunity to the judge to correct his own errors if any. Singer v. Chitwood, 126 Colo. 173, 247 P.2d 905 (1952). A litigant may elect not to participate in trial and still seek review. In Colorado a litigant against whom a new trial has been ordered may elect to stand on such order, obtain a dismissal of the action, and thereupon seek review by appeal. Chartier v. Winslow Crane Serv. Co., 142 Colo. 294, 350 P.2d 1044 (1960). New trial participation does not waive other objections. Prior to the amendment in 1964, a party against whom an order granting a new trial had been entered waived any error in the order by participating in the new trial. The amendment merely removed this waiver. It did not change the rule of Chartier in Chartier v. Winslow (142 Colo. 294, 350 P.2d 1044 (1960)) that a party may decline to participate in a new trial, permit judgment to be entered against him and sue out appeal for a determination of the correctness of the order granting the new trial. Rice v. Groat, 167 Colo. 554, 449 P.2d 355 (1969). Proceeding to terminate parental rights. The granting of a new trial in a proceeding to terminate parental rights placed the parties in the positions they occupied prior to the vacated hearing. People in Interest of M.B., 188 Colo. 370, 535 P.2d 192 (1975). VII. Effect of Granting Judgment Notwithstanding Verdict, Amendment of Findings, or Amendment of Judgment. The effect of this rule is merely to render unnecessary a request for a formal reservation of the question of law raised by the motion for a directed verdict and, in addition, to regulate the time and manner of moving for direction and of moving for judgment on the basis of the refusal to direct. Burenheide v. Wall, 131 Colo. 371, 281 P.2d 1000 (1955). VIII. Time for Determination of Post-Trial Motions. Section (j) is applicable only to motions filed on or after January 1, 1985, and does not apply to motions which were pending upon that date. Stientjes v. Olde-Cumberlin Auctioneers, Inc. 754 P.2d 1384 (Colo. App. 1988). Motion for costs is not a motion for post-trial relief governed by this section and, therefore, need not be determined within 60 days under section (j). Meier v. McCoy, 119 P.3d 519 (Colo. App. 2004). Construction of “determine” within context of section (j) for purposes of resolving timeliness of notices of appeal. Trial court made a “determination” on post-trial motions upon oral ruling from bench within 60 days from date of filing of last of such motions even though written order was not signed and entered until after expiration of 60-day period. In re Forsberg, 783 P.2d 283 (Colo. 1989). Motion for amendment of findings and judgment was “determined” when trial court came to a decision on the merits of such motion and directed movant’s counsel to prepare order reflecting such decision, which order was not signed and entered until after 60-day period. In re Forsberg, 783 P.2d 283 (Colo. 1989). A motion made pursuant to C.R.C.P. 60 cannot be used to circumvent the operation of section (j) unless the facts of the case constitute an “extreme situation” justifying relief from a judgment pursuant to C.R.C.P. 60(b)(5). Sandoval v. Trinidad Area Health Ass’n, 752 P.2d 1062 (Colo. App. 1988). The “unique circumstances” doctrine is not available to a party seeking to modify the time for determination of a post-trial motion pursuant to section (j). Sandoval v. Trinidad Area Health Ass’n, 752 P.2d 1062 (Colo. App. 1988). Time limits for filing notice of appeal under C.A.R. 4 must be met for appeals of judgments for attorney fees. The award of attorney fees in a case is sufficiently separate from an underlying judgment on the merits to require that a notice of appeal of the judgment awarding attorney fees be filed within the time limits of C.A.R. 4 independently of the judgment entered on the merits of the underlying case. If this is not done, the court of appeals is not vested with subject matter jurisdiction to determine issues related to the award of attorney fees. Dawes Agency v. Am. Prop. Mortg., 804 P.2d 255 (Colo. App. 1990). Timely filing of motion for reconsideration of a completed post-trial ruling on an attorney fees issue tolls the time for filing a notice of appeal until the court determines the motion or the motion is deemed denied after 60 days pursuant to section (j). Jensen v. Runta, 80 P.3d 906 (Colo. App. 2003). Time limits for filing notice of appeal under C.A.R. 4 are terminated as to all parties by timely filing of a motion under this rule. Thereafter, time begins to run upon determination of the motion or the date the motion is deemed denied, whichever is earlier. United Bank of Boulder, N.A. v. Buchanan, 836 P.2d 473 (Colo. App. 1992); Stone v. People, 895 P.2d 1154 (Colo. App. 1995). Section (j) is designed to encourage expeditious determination of post-trial motions and to provide certainty in the calculation of the time within which a party must file a notice of appeal. Campbell v. McGill, 810 P.2d 199 (Colo. 1991). Section (j) does not apply to issues concerning recovery of attorney fees not sought as damages. Tallitsch v. Child Support Servs., Inc., 926 P.2d 143 (Colo. App. 1996). Section (j) satisfied where the court acted on motion within 60 days following the filing of the last multiple motions and where the court orally ruled upon the motions within 60 days, even though the written order was signed and entered after the period. Fenton v. Fibreboard Corp., 827 P.2d 564 (Colo. App. 1991). Section (j) satisfied where plaintiff’s motion for reconsideration was entered within 60 days of the date trial court granted plaintiff’s motion to represent himself. Campbell v. McGill, 810 P.2d 199 (Colo. 1991). The provisions of C.R.C.P. 54(b) regarding a trial court’s jurisdiction to revise its initial judgment are expressly incorporated in C.R.C.P. 58 and, therefore, are applicable to motions filed pursuant to this rule. The 60-day limit specified in section (j) did not bar trial court’s determination of a motion for new trial in case involving multiple claims and multiple parties when trial court did not make an express direction for entry of final judgment under C.R.C.P. 54(b) and there could be no entry of final judgment under C.R.C.P. 58(a). Smeal v. Oldenettel, 814 P.2d 904 (Colo. 1991). Ruling on post-trial motion must be entered within 60-day time limit specified in section (j) and any order entered after such 60-day limitation is null and void. In re Micaletti, 796 P.2d 54 (Colo. App. 1990); Spencer v. Bd. of County Comm’rs, 39 P.3d 1272 (Colo. App. 2001). A court loses jurisdiction when it fails to rule on a post-judgment motion within 60 days. The language of section (j) is mandatory and provides that the district court shall rule within 60 days or the motion shall be automatically denied. Arguelles v. Ridgeway, 827 P.2d 553 (Colo. App. 1991). A motion under section (j) is automatically deemed denied after 60 days, however the court had authority under C.R.C.P. 60(a) to vacate such denial and rule on the motion because the court was unaware that defendant’s motion was pending at the time it entered judgment in favor of plaintiff. Farmers Ins. Exchange v. Am. Mfrs. Mut. Ins. Co., 897 P.2d 880 (Colo. App. 1995). The time period for responding to motions is not extended when a court grants a party additional time to respond to the opposing party’s briefs. Arguelles v. Ridgeway, 827 P.2d 553 (Colo. App. 1991). Failure to obtain an extension of time within which to file motion under this rule deprived the district court of jurisdiction to hear any motion filed after the 15-day period had expired and the untimely filing of that motion did not toll the running of the 45 days for the filing of a notice of appeal under C.A.R. 4. Stone v. People, 895 P.2d 1154 (Colo. App. 1995). While section (a) provides that motions for amendment of judgment shall be filed within 15 days or such greater time as the court may allow, a court may only allow greater time during the 15 days following the entry of judgment. Once that period expires, the court loses jurisdiction to grant additional time. Spencer v. Bd. of County Comm’rs, 39 P.3d 1272 (Colo. App. 2001). Plaintiff abandons timeliness issue if he or she does not argue that the trial court erred in rejecting her motion under this rule as untimely. In re McSoud, 131 P.3d 1208 (Colo. App. 2006).