dissenting:
I respectfully dissent. In my view, the trial court abused its discretion by vacating the petitioner’s judgment pursuant to C.R. C.P. 60(b)(5). Rule 60(b)(5) provides extraordinary relief and may be invoked only upon a showing of exceptional circumstances. Cavanaugh v. Department of Social Services, 644 P.2d 1, 5 (Colo.1982); Stradley v. Cortez, 518 F.2d 488, 494 (3rd Cir.1975). In Cavanaugh, we recognized that Rule 60(b)(5) is not a substitute for appeal, and that the movant’s failure to appeal when appeal is an adequate remedy precludes relief under Rule 60:
Rule 60 also contains a residuary clause which allows relief from judgment for “any other reason justifying relief from the operation of the judgment,” in addition to those specifically enumerated in other subsections of the rule.... However, even the expansive “any other reason” language has been narrowly interpreted so as to avoid undercutting the preferred rule of finality of judgments. Rule 60 is not a substitute for appeal, but instead is meant to provide relief in the interests of justice in extraordinary circumstances.
The failure to timely file an appeal has been held not to be a sufficient ground to justify extraordinary relief from judgment. Appellant’s failure to perfect an appeal from the earlier proceeding does not present a sufficient factual basis to warrant extraordinary relief.
644 P.2d at 5 (citations omitted).
In this case, the defendants did not demonstrate that the automatic denial of their motion for a new trial caused appellate review to be an inadequate remedy, and the *698defendants have not established that exceptional circumstances warranted setting aside the judgment against them. The denial of a motion for a new trial as a result of time limitations in the rule is no different than denial after a hearing. Denial of the motion for a new trial permits appeal of the issues raised in the motion without further delay. The majority opinion, which allows the trial court to vacate a judgment under Rule 60(b)(5) upon proof of “awesome” and “horrifying” juror misconduct that renders the process “fetid” and the case a “shame,” provides no guidance to the courts below on the standard that should be applied when a Rule 60(b)(5) motion is filed, and permits Rule 60(b)(5) to be used in many instances as a means for circumventing C.R.C.P. 59.
The trial court also erred in granting the defendants’ motion to vacate because, as the trial court stated, “the result [in this case] would have been exactly the same” in the absence of juror misconduct. The majority recognizes that the trial court must disregard errors that do not affect “the substantial rights of the parties,” see C.R. C.P. 61, but declares, “it goes almost without saying that the right to an impartial jury deciding a case on the evidence presented at trial is a ‘substantial right' under C.R.C.P. 61 and otherwise_” In my view, the majority considers only part of the test set forth in Rule 61. It is indisputable that the defendants’ right to an impartial jury is a “substantial right” under Rule 61. However, regardless of the sanctity of the defendants’ right to an impartial jury, the defendants must prove that juror misconduct affected that right. The trial court found, and the record supports the court’s finding, that the actions of Ms. Adams and others did not prejudice the defendants.1 I do not believe that Rule 61 supports the majority’s conclusion that prejudice exists because of the right allegedly affected, and nothing more. If that interpretation of Rule 61 were correct, juror misconduct, errors in the admission of evidence, errors in instruction given to the jury, restrictions on cross-examination, and prosecutorial misconduct could never be harmless error because the rights allegedly affected are “substantial.” The law is clear that such errors may be harmless, as I conclude the errors were in this case. See 11 C. Wright & A. Miller, Federal Practice and Procedure § 2885-88 (1973 & 1986 Supp.).
Accordingly, I would make the rule absolute.
I am authorized to say that Justice VOLLACK joins in this dissent.
. Unlike the majority, I do not believe that the court’s statements, “we simply can't have trial like this" and “the motion under C.R.C.P. 60(b)(5) ... must be granted to avoid manifest injustice,” overcome the trial judge’s belief that the verdict would not have been different in the absence of juror misconduct.