Hanna v. Nelson (2026)

Case details
Full caption
Saad Hanna v. Kimberly A. Nelson
Country
United States
Jurisdiction
Colorado (CO)
Court
Colorado Supreme Court
Decided
2026
Disposition
Motion Denied
Saad Hanna, Plaintiff-Appellant, v. Kimberly A. Nelson,..., Not Reported in Pac.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.12026 WL 71071Only the Westlaw citation is currently available.NOT PUBLISHED PURSUANT TO C.A.R. 35(e)Colorado Court of Appeals, Division IV.Saad Hanna, Plaintiff-Appellant,v.Kimberly A. Nelson, Defendant-Appellee.Court of Appeals No. 25CA0533|Announced January 8, 2026Arapahoe County District Court No. 24CV34 Honorable BenFiga, JudgeAttorneys and Law FirmsSaad Hanna, Pro SeSharuzi Law Group Ltd., Jacqueline B. Sharuzi, Erik D.Moya, Denver, Colorado, for Defendant-AppelleeSchock and Taubman*, JJ., concurORDER AFFIRMEDOpinion by JUDGE HARRIS*1 1 After undergoing an allegedly unsuccessful surgery,pro se plaintiff, Saad Hanna, asserted a professionalnegligence claim against defendant, Kimberly A. Nelson(doctor). The district court dismissed Hanna's complaint forfailure to state a claim and failure to file a certificate ofreview as required by section 13-20-602, C.R.S. 2025. Itthen denied Hanna's subsequent C.R.C.P. 60(b) motion forreconsideration. 2 Hanna appeals the denial of his Rule 60(b) motion.1 Weaffirm.I. Background 3 Hanna sued the doctor2 in January 2024. He alleged thatafter she performed surgery in 2022 to correct his deviatedseptum, he had difficulty breathing and had to seek emergencycare on five occasions for severe nose bleeds. 4 On the doctor's motion to dismiss, the court concludedthat Hanna had failed to sufficiently plead a professionalnegligence claim and dismissed Hanna's complaint withoutprejudice. Four months later, Hanna filed an amendedcomplaint, but the court dismissed that complaint withoutprejudice too, this time in part based on Hanna's failure to filethe certificate of review required by section 13-20-602. Thecourt gave Hanna thirty-five days to cure the deficiencies. 5 Hanna retained counsel, who obtained an extension of timeto file a second amended complaint and certificate of review.But his counsel withdrew several months later without filingeither one. In November 2024, after Hanna failed to file a newcomplaint and certificate, the court dismissed the case withprejudice. 6 Hanna then filed the C.R.C.P. 60(b) motion at issue in thisappeal. The motion alleged that newly discovered evidencesupported the negligence claim and warranted reinstatementof the complaint. The court summarily denied the motion.II. Hanna's C.R.C.P. 60(b) Motion 7 Hanna contends that the court erred in denying his Rule60(b) motion by disregarding the newly discovered evidenceand not providing an explanation for the denial. We disagree.A. Applicable Law and Standard of Review 8 The purpose of C.R.C.P. 60 is to allow a court to setaside a final judgment “when [a] significant new matter offact or law arises which is extrinsic to it because of nothaving been presented to the court.” E.B. Jones Constr. Co.v. City & County of Denver, 717 P.2d 1009, 1013 (Colo.App. 1986). The rule specifies reasons for setting asidea judgment: mistake or excusable neglect, C.R.C.P. 60(b)(1); fraud or other improper conduct by the adverse party,C.R.C.P. 60(b)(2); voidness, C.R.C.P. 60(b)(3); or equitableconsiderations, C.R.C.P. 60(b)(4). Rule 60(b)’s residuaryprovision authorizes vacatur for “any other reason justifyingrelief from the operation of the judgment.” C.R.C.P. 60(b)(5).*2 9 Although Rule 60(b) does not explicitly provide forrelief based on newly discovered evidence, the supreme court
Saad Hanna, Plaintiff-Appellant, v. Kimberly A. Nelson,..., Not Reported in Pac.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.2has held that “the ‘any other reason justifying relief’ languageof Rule 60(b)(5) encompasses newly discovered evidence.”Se. Colo. Water Conservancy Dist. v. O'Neill, 817 P.2d 500,505 (Colo. 1991). A Rule 60(b) motion predicated on newlydiscovered evidence “should be resolved by the same criteriaapplicable to a [C.R.C.P.] 59(d)(4) motion” for a new trial.Id. at 506. Thus, to show entitlement to relief, the movingparty must establish that (1) the evidence could not havebeen discovered by the exercise of reasonable diligence andproduced before the entry of the judgment; (2) the evidenceis material to an issue; and (3) “the new evidence, if admitted,would probably change the result of the judgment.” Meyer v.Haskett, 251 P.3d 1287, 1293 (Colo. App. 2010). 10 We review the district court's denial of a Rule 60(b)motion for an abuse of discretion. Taylor v. HCA-HealthONELLC, 2018 COA 29, 30. A district court abuses its discretiononly when it misapplies the law or when its decision ismanifestly arbitrary, unreasonable, or unfair. Int'l Network,Inc. v. Woodard, 2017 COA 44, 24.B. Analysis 11 The “newly discovered” evidence in this case is a one-page computer screenshot from UCHealth listing Hanna's“current health issues,” including “nasal valve collapse” —a condition that “started 6/12/2023,” about a year after thesurgery. 12 The screenshot does not satisfy the criteria for newlydiscovered evidence. As Hanna acknowledges, it is notactually new evidence. The same screenshot was attached tothe original complaint as an exhibit. Therefore, the evidencewas discovered and was produced before entry of judgment.And the screenshot did not prevent dismissal of the complaint,so, by necessity, its resubmission would not change theoutcome of the judgment. 13 Nor does the screenshot satisfy the certificate ofreview requirement. Section 13-20-602 provides that in everyprofessional negligence action (which includes a medicalmalpractice case), the plaintiff must file a certificate ofreview within sixty days after service of the complaintaffirming that he has consulted with an expert and theexpert has concluded that the claim does not lack substantialjustification. § 13-20-602(1), (3). This requirement appliesto both represented and unrepresented parties. Yadon v.Southward, 64 P.3d 909, 912 (Colo. App. 2002). The failureto file a certificate of review “shall result in the dismissal ofthe complaint.” § 13-20-602(4); Woo v. Baez, 2022 COA 113, 15 (“[U]pon the defendant's request, the court must dismissa claim that requires a certificate of review if the plaintiff hasnot complied with the statute.”). 14 To comply with section 13-20-602, Hanna had to affirmthat a qualified medical expert had “reviewed the relevantinformation” concerning his medical malpractice claim andthat the expert had determined that the claim did not lacksubstantial justification. RMB Servs., Inc. v. Truhlar, 151 P.3d673, 675 (Colo. App. 2006); § 13-20-602(3). And because thecourt ordered him to do so, Hanna also had to provide theexpert's name. See § 13-20-602(3) (The court, in its discretion,may require the identity of the ... licensed professional whowas consulted ... to be disclosed to the court ....”). Thescreenshot listed a “nasal valve collapse” as a “current healthissue,” but it did not indicate that any medical expert hadattributed the nasal valve collapse (or any other health issue)to the doctor's negligence. In fact, Hanna told the court that hehad tried to obtain a certificate of review, but no expert wouldprovide one.*3 15 Because Hanna neither submitted new evidence norcomplied with the certificate of review requirement, the courtdid not abuse its discretion by denying his Rule 60(b) motion. 16 True, in denying the motion, the court did not makefactual findings or state its conclusions of law. But theabsence of detailed findings and conclusions does not hamperappellate review in this case, see Morris v. Belfor USA Grp.,Inc., 201 P.3d 1253, 1263 (Colo. App. 2008) (a trial court'sorder must include findings and conclusions sufficient toenable appellate review), because the court's reasons fordenying the motion are clear from the record, see People inInterest of C.L.T., 2017 COA 119, 36 (recognizing that acourt's findings may be implicit from the record); cf. Fosterv. Phillips, 6 P.3d 791, 796 (Colo. App. 1999) (when a court'sruling, in the context of the record, is sufficient to determineits basis, a failure to make express findings does not requirereversal). Accordingly, the lack of findings and conclusionsdoes not provide a basis for reversal.III. The Doctor's Request for Attorney Fees and Costs 17 The doctor requests an award of appellate attorney feesand double costs under C.A.R. 38 and C.A.R. 39.1. She arguesthat Hanna's appeal is frivolous and that his brief includes
Saad Hanna, Plaintiff-Appellant, v. Kimberly A. Nelson,..., Not Reported in Pac.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.3citations to nonexistent cases — i.e., “hallucinations” createdby a generative artificial intelligence (GenAI) tool. See Al-Hamim v. Star Hearthstone, LLC, 2024 COA 128, 2. 18 Under C.A.R. 38, we may award attorney fees and doublecosts as a sanction when an appeal is frivolous, meaning“the proponent can present no rational argument based on theevidence or law ... or the appeal is prosecuted for the solepurpose of harassment or delay.” Averyt v. Wal-Mart Stores,Inc., 2013 COA 10, 43 (citation omitted); see C.A.R. 38(b).But we may not assess attorney fees against a pro se partyexcept on a finding that “the party clearly knew or reasonablyshould have known that the party's action ... was substantiallyfrivolous.” § 13-17-102(6), C.R.S 2025. 19 On one hand, Hanna's appeal of the Rule 60(b) orderclearly lacks merit. As we have explained, the documentindicating that Hanna had a collapsed nasal valve is not asubstitute for the required certificate of review, and, in anycase, it was submitted with the original complaint. And eachtime the court issued an order adverse to Hanna, Hanna fileda notice of appeal, resulting in the initiation of four priorappeals,3 all of which were promptly dismissed on proceduralgrounds (without requiring any action from the doctor). 20 On the other hand, the doctor does not allege thatHanna knew or reasonably should have known that this appealwas frivolous. That omission alone is grounds for denialof the fee request. See C.A.R. 39.1 (a request for appellateattorney fees must include the legal basis for an award).And, as Hanna points out, the court did not make findingsor state conclusions of law to explain its denial of the Rule60(b) motion. Moreover, contrary to the doctor's argument,newly discovered evidence is a valid basis for setting asidea judgment under Rule 60(b), and the screenshot did, infact, show a “medical issue” — a collapsed nasal valve— that arose after the surgery. Indeed, Hanna's allegations(which we must accept as true) indicate that he sufferedsevere complications from the surgery — complications thata UCHealth doctor opined were not “normal.”*4 21 None of this provides any reason to reverse thecourt's order, but the fact that Hanna did not prevail on appealdoes not mean that he knew or should have known that theappeal was frivolous. See, e.g., In re Estate of Shimizu, 2016COA 163, 34. 22 That brings us to Hanna's alleged use of a GenAI toolin the preparation of his brief. While GenAI can be a usefultool for pro se litigants, see Natalie Runyon, Chatbots forjustice: The impact of AIdriven tech tools for pro se litigants(Thomson Reuters Inst., Feb. 12, 2025), we agree with thedoctor that it presents some risks, including that the GenAItool may generate fictitious case citations, see Al-Hamim, 30. The doctor says that three such citations appear in Hanna'sbrief, warranting sanctions.4 23 True, by the time Hanna filed his opening brief, a divisionof this court had issued an opinion cautioning lawyers andself-represented litigants that “future filing[s] in this courtcontaining [GenAI]-generated hallucinations may result insanctions.” Id. at 41. But despite the recent opinion, ourcourt is still in the early stages of navigating self-representedlitigants’ use of this new technology. And the Al-Hamimdivision itself declined to impose sanctions, in part becauselitigants lacked notice of possible sanctions, but also becausethe litigant in that case had not previously filed documentswith hallucinations, and the eight fake citations in his brief didnot amount to an egregious violation of our appellate rules.Id. at ¶¶ 39-40. 24 Like the litigant in Al-Hamim, Hanna appears to be afirst-time offender when it comes to the use of hallucinations.And the allegedly fictitious cases were cited for well-settledlegal propositions that could have been supported by otherlegitimate authorities. 25 Given Hanna's insubstantial arguments and inaccuratecitations, the question of whether to award appellate attorneyfees or otherwise impose a sanction is a close one. But onbalance, we cannot say that this a “clear and unequivocal”case involving the kind of “egregious conduct” that warrantssanctions, Glover v. Serratoga Falls LLC, 2021 CO 77, 70 (citation omitted), particularly against a pro se party.Accordingly, we deny the doctor's request for appellateattorney fees and double costs. However, we caution Hannathat future infractions may result in dismissal of the appeal,striking of a brief, or an award of attorney fees.IV. Disposition*5 26 The order is affirmed.JUDGE SCHOCK and JUDGE TAUBMAN concur.
Saad Hanna, Plaintiff-Appellant, v. Kimberly A. Nelson,..., Not Reported in Pac.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.4All CitationsNot Reported in Pac. Rptr., 2026 WL 71071Footnotes*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025.1Later, Hanna filed two more motions to set aside the judgment under C.R.C.P. 60(b). But by then, he had filed a noticeof appeal with respect to the order denying his initial Rule 60(b) motion for reconsideration, so the court denied thesubsequent motions for lack of jurisdiction. Although Hanna's briefing suggests that he is appealing all orders denyinghis three Rule 60(b) motions, the latter two orders are not part of this appeal because Hanna did not amend his noticeof appeal to include those orders. See In re Estate of Anderson, 727 P.2d 867, 869 (Colo. App. 1986) (notice of appealwas not effective to initiate appeal of order entered after the notice was filed).2Hanna also named Littleton Adventist Hospital and Rose Medical Center as defendants, but the court dismissed hisclaims against these entities, and Hanna does not appeal their dismissal.3Hanna appealed the court's orders dismissing his claims against Littleton Adventist Hospital and Rose Medical Center.But those appeals were dismissed for lack of a final order and untimeliness, respectively. Later, Hanna appealed thecourt's order quashing a subpoena and its order denying a motion to disqualify. Those appeals were dismissed for failureto pay a filing fee.4Two of the cases are not fictitious. People in Interest of J.L.S., (Colo. App. No. 24CA0623, Sept. 19, 2024) (not publishedpursuant to C.A.R. 35(e)), incorrectly cited, is an unpublished decision that stands for the proposition for which Hannacited it. See id., slip op. at 12 (a court abuses its discretion when its ruling is manifestly arbitrary, unreasonable, or unfairor when it misapplies the law). (Still, Hanna's citation to an unpublished decision violates this court's policy prohibitingcitation of unpublished opinions, see Colo. Jud. Branch, Court of Appeals Policies, Policy Concerning Citation of OpinionsNot Selected for Official Publication (2025), https://perma.cc/Z88K-5U7F). In re Estate of Ongaro, 973 P.2d 660 (Colo.App. 1998), aff'd, 998 P.2d 1097 (Colo. 2000), also incorrectly cited, is a published case, but it does not articulate thetest for determining whether newly discovered evidence warrants relief.End of Document© 2026 Thomson Reuters. No claim to original U.S.Government Works.
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