C.r.c.p. 61
No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
C.r.c.p. 61
Annotation Law reviews. For article, "Judgment: Rules 54-63 ", see 23 Rocky Mt. L. Rev. 581 (1951). For article, "The Applicability of the Rules of Evidence in Non-Jury Trials", 24 Rocky Mt. L. Rev. 480 (1952). A substantial right is one which relates to the subject matter and not to a matter of procedure and form. Sowder v. Inhelder, 119 Colo. 196, 201 P.2d 533 (1948); Corbin by Corbin v. City and County of Denver, 735 P.2d 214 (Colo. App. 1987). Lack of adherence to formalities which do not result in prejudice should not interfere with the determination of the issues on the merits. Swan v. Zwahlen, 131 Colo. 184, 280 P.2d 439 (1955). A new trial will not be granted for error which did not prejudice or harm the party seeking a new trial, or where the trial resulted in substantial justice. Francis v. O'Neal, 127 Colo. 432, 257 P.2d 973 (1953); Tincombe v. Colo. Const. & Supply Corp., 681 P.2d 533 (Colo. App. 1984). To the extent there was any error in judge's comments that defendant was "playing games" by filing motions for recusal, such error was harmless where defendant filed a subsequent motion for recusal which included the arguments made in the previous recusal motions and the subsequent motion was decided. Moody v. Corsentino, 843 P.2d 1355 (Colo. 1993). Error in admission of immaterial evidence is not prejudicial where the findings are not based on, nor related to, any of the immaterial matter. Lloyd A. Fry Roofing Co. v. State, 179 Colo. 223, 499 P.2d 1176 (1972). Violation of rule provisions allowing for a response from the party opposing a motion for summary judgment found to be harmless error under the circumstances. Union Ins. Co. v. Hottenstein, 83 P.3d 1196 (Colo. App. 2003). It was harmless error for the court to enter summary judgment on an issue which was not raised by the parties when the party against whom judgment is entered has the opportunity to respond to the new issue raised by the trial court. Ferrera v. Nielsen, 799 P.2d 458 (Colo. App. 1990); Davis v. Lira, 817 P.2d 539 (Colo. App. 1991). Where testimony is hearsay, its admission is harmless when the essential and operative facts upon which an award rests are established by competent evidence in the record. San Isabel Elec. Ass'n v. Bramer, 31 Colo. App. 134, 500 P.2d 821 (1972), aff'd, 182 Colo. 15, 510 P.2d 438 (1973). The admission of part of the deposition of a party in court and able to testify is harmless error where the evidence contained therein is merely cumulative to the evidence already before the court. Its admission neither adds to nor detracts from evidence previously admitted. Therefore, the admission of the deposition is not reversible error. Sentinel Petroleum Corp. v. Bernat, 29 Colo. App. 109, 478 P.2d 688 (1970). It was harmless error to admit evidence that deposition was taken at Texas state penitentiary, since defendants failed to prove that its admission affected substantial rights. Cheney v. Hailey, 686 P.2d 808 (Colo. App. 1984). Where a trial judge drives past the premises in question in a zoning case to gain familiarity with its location and topography so he could better understand references in the record to the property, he does not commit reversible error so long as there is no indication that when the trial judge viewed the property it was not in substantially the same condition as when the ordinance in question was passed nor is there any indication that the trial court was influenced by or based its decision upon any evidence not a part of the record. Trans-Robles Corp. v. City of Cherry Hills Village, 30 Colo. 511, 497 P.2d 335 (1972), aff'd, 181 Colo. 356, 509 P.2d 797 (1973). Where the stated reason for a transcript record's use is to show the scope of a previous judgment, which it fails to include, its admission is error, but harmless error. Wasinger v. Miller, 154 Colo. 61, 388 P.2d 250 (1964). Errors and deficiencies of counsel will be disregarded where not to do so would result in palpable injury. Griffith v. Anderson, 109 Colo. 265, 124 P.2d 599 (1942). Although a trial court applies the wrong test, the failure to dismiss does not result in reversible error, where had the trial court applied the right rule, the result would have been the same. Am. Nat'l Bank v. First Nat'l Bank, 28 Colo. App. 486, 476 P.2d 304 (1970). Error held harmless. Where the record is clear that adequate funds were in fact remitted on behalf of the judgment debtor, and at all times subsequent to the inaccurate change refund by the clerk, the judgment debtor was willing and able to pay the interest to the judgment creditor, and payment was obstructed solely by the latter, substantial justice would not be served by penalizing the defendant for the minor mathematical error of the clerk of the trial court, and thus the error is harmless. Osborn Hdwe. Co. v. Colo. Corp., 32 Colo. App. 254, 510 P.2d 461 (1973). Even if the trial court erred in issuing a protective order precluding discovery by plaintiff, such error was harmless because it would not alter the court's conclusion that summary judgment was proper. Pierce v. St. Vrain Valley Sch. Dist., 944 P.2d 646 (Colo. App. 1997); rev'd on other grounds, 981 P.2d 600 (Colo. 1999). Failure to include a citation of legal authorities in trial data certificate and late filing of authorities in trial memorandum held to be harmless error. Yoder v. Hooper, 695 P.2d 1182 (Colo. App. 1984), aff'd, 732 P.2d 852 (Colo. 1987). Presentation of factual requirements for entry of default judgment by means of testimony and other evidence, rather than by affidavit as required byC.R.C.P. 121 § 1-14, held to be harmless error. Dunton v. Whitewater West Recreation, Ltd., 942 P.2d 1348 (Colo. App. 1997). Applied in Jones v. Gates Serv. Station, Inc., 108 Colo. 201, 115 P.2d 396 (1941); Odell v. Pub. Serv. Co., 158 Colo. 404, 407 P.2d 330 (1965); McQueen v. Robbins, 28 Colo. App. 436, 476 P.2d 57 (1970); Kerby v. Flamingo Club, Inc., 35 Colo. App. 127, 532 P.2d 975 (1974); Lopez v. Motor Vehicle Div., Dept. of Rev., 189 Colo. 133, 538 P.2d 446 (1975); Osborne v. Holford, 40 Colo. App. 365, 575 P.2d 866 (1978); Kaltenbach v. Julesburg Sch. Dist. Re-1, 43 Colo. App. 150, 603 P.2d 955 (1979); Baum v. S.S. Kresge Co., 646 P.2d 400 (Colo. App. 1982); In re Tatum, 653 P.2d 74 (Colo. App. 1982); Jackson v. Harsco Corp., 653 P.2d 407 (Colo. App. 1982); Banek v. Thomas, 697 P.2d 743 (Colo. App. 1984), aff'd, 733 P.2d 1171 (Colo. 1986); Kedar v. Pub. Serv. Co., 709 P.2d 15 (Colo. App. 1985); Greenemeier by Redington v. Spencer, 719 P.2d 710 (Colo. 1986); Denman v. Burlington Northern R. Co., 761 P.2d 244 (Colo. App. 1988); Clark v. Buhring, 761 P.2d 266 (Colo. App. 1988); Southerland v. Argonaut Ins. Co., 794 P.2d 1102 (Colo. App. 1990); States v. R.D. Werner Co., 799 P.2d 427 (Colo. App. 1990); Cook Inv. v. Seven-Eleven Coffee Shop, 841 P.2d 333 (Colo. App. 1992); Cherry Creek Sch. Dist. v. Voelker, 859 P.2d 805 (Colo. 1993); Radcliff Props. v. City of Sheridan, 2012 COA 82, 296 P.3d 310.