The Colorado Supreme Court decided on Tuesday that a civil defendant, whose non-participation in the case meant that he legally admitted to the sexual assault allegations against him, could nonetheless prevail after he showed up to testify at trial.

A plaintiff identified as J.B. filed suit against Metro Taxi on behalf of her child, E.B., who is a disabled adult. J.B., an alleged taxi driver, Jesus Ortiz, sexually assaulted E.B. while driving her to her day program. Prosecutors separately charged Ortiz and a jury acquitted him.

Ortiz did not respond to the civil lawsuit in which he was also a defendant, and the clerk entered a default judgment against him. Legally, the default established Ortiz’s liability.

However, at the trial against Metro Taxi, the judge allowed Ortiz to testify. He maintained he did not assault E.B. Although jurors were told the default meant Ortiz admitted to the allegations, the jury found in Metro Taxi’s favor, that Ortiz did not assault E.B., and that E.B. did not suffer damages. A judge then overturned the default and, later, the case was resolved in Ortiz’s favor.

By 6-1, the Supreme Court took no issue with the sequence of events that resulted in Ortiz and Metro Taxi prevailing.

“We have a long-established preference for resolving cases on the merits rather than through default judgments whenever possible,” wrote Justice William W. Hood III in the June 23 opinion. “Allowing Ortiz to testify promoted the truth-seeking function of our legal system.”

Chief Justice Monica M. Márquez dissented, believing it was improper to allow Ortiz to testify solely as a witness for his employer and then permit him to prevail as a separate defendant based on that testimony.

“Indeed, by upholding the entry of judgment in Ortiz’s favor — a judgment that can be directly traced to Ortiz’s improper testimony contrary to facts admitted through his default — the majority also simultaneously deprives the plaintiff of any opportunity to try her claims against Ortiz,” Márquez wrote. “All told, this is a startling outcome for a defendant who defaulted, and for a plaintiff who played by the rules.”

Previously, the Court of Appeals addressed whether it was proper for Ortiz to testify at the trial against Metro Taxi, whether a judge could overturn the default judgment following the verdict, and whether Ortiz could ultimately prevail despite his default.

By 2-1, a three-judge appellate panel upheld the outcome.

Judge Lino S. Lipinsky de Orlov noted that Metro Taxi “followed the rules” and deserved to present evidence from a key witness — Ortiz.

“J.B. had a full opportunity to litigate the most fundamental fact underlying J.B.’s claim against Ortiz — whether Ortiz sexually assaulted E.B.,” wrote Lipinsky for himself and Judge Rebecca R. Freyre. “After hearing J.B.’s evidence, the jury rejected the evidence supporting her assertion that E.B. was sexually assaulted.”

Judge Timothy J. Schutz dissented, arguing the central problem was that jurors were told Ortiz’s default meant he admitted the allegations, yet the trial judge still asked them to decide whether Ortiz committed an assault.

The judge “gave the jury no guidance on how it was to resolve this inconsistency,” Schutz wrote. The result was “a profound reward: a judgment entered in Ortiz’s favor without ever having to face a trial on the merits of E.B.’s claims against him.”

During oral arguments to the Supreme Court, J.B.’s attorney maintained that she did everything right and the law imposes a consequence for Ortiz’s failure to participate.

But Metro Taxi also followed the rules, interjected Justice Richard L. Gabriel.

“Help me understand how it could be that we could prevent a non-defaulting defendant from putting on their best defense,” he said.

“This case has caused me to think about what is fair. Because there’s fairness to your client,” Márquez told Metro Taxi’s attorney. “There’s fairness to Mr. Ortiz. There’s fairness to the plaintiff. I understand that for your client’s purposes, the fact that the key witness here had defaulted ought not to somehow prejudice your ability to put on your defense.”

Yet, Ortiz “was allowed to essentially capitalize on that testimony and the jury verdict that resulted from it,” she continued.

Hood, in the majority opinion, noted the procedural rules say nothing about whether a defaulting defendant can testify like Ortiz did. Because defendants are “generally allowed to defend themselves with the best evidence available,” Hood wrote that it was proper for Metro Taxi to call Ortiz as someone who could testify directly about whether a sexual assault occurred.

“Ortiz’s liability to J.B. wasn’t at issue in this trial; he was testifying as a subpoenaed witness (not a codefendant), and the jury was instructed that he was deemed liable for the sexual assault by virtue of his default,” wrote Hood.

Then, after the jury decided in Metro Taxi’s favor, it would be “unseemly and absurd, as well as unauthorized by law” to continue to hold Ortiz liable by default based on his non-response to the plaintiff’s allegations. Under the circumstances, “a default judgment based on those allegations should be vacated,” Hood concluded.

Márquez, in dissent, wrote that permitting Ortiz to testify was a mistake that “set in motion a chain of events that ultimately allowed Ortiz to not only escape his own default but to ultimately claim judgment in his favor as a party on the merits of J.B.’s claims — all without ever facing a trial on those claims.”

The case is J.B. v. MKBS, LLC et al.