On June 11, 2026, the Colorado Court of Appeals held in Nunn v. Nestor, 2026 COA 49, that a verdict form labeled “Special Verdict Form” was in fact a general verdict accompanied by answers to interrogatories under Colorado Rule of Civil Procedure 49(b). The division reached this conclusion because the verdict form required the jury to decide the ultimate legal result of each claim, leaving nothing for the court to do but enter judgment. Because the form constituted a general verdict rather than a special verdict, the defendant-appellant was required to object to any inconsistency before the jury was discharged. His failure to do so resulted in waiver of the right to raise that challenge on appeal.
Background
In May 2021, Officer Nestor pulled over Nunn, a young black man, for failing to yield to an emergency vehicle. As Nunn handed Nestor his registration and reached for his wallet to produce his driver’s license, Nestor drew his gun and called for backup. Nunn got out of his car at gunpoint as more officers arrived. Once out of the car, Nunn was tackled to the ground by another officer, tased twice, arrested, and charged with several crimes. All charges were later dismissed.
Nunn sued Nestor for excessive force, unreasonable seizure, failure to intervene in another officer’s use of force, and an equal protection violation based on racial discrimination. The jury found in Nunn’s favor only on the excessive force claim based on the officer pointing his weapon at Nunn.
Nestor appealed, contending that the jury’s verdict was irreconcilably inconsistent. Nunn responded that Nestor failed to preserve that issue for appeal because he did not object before the jury was dismissed.
Both arguments turned on whether the jury’s verdict was (1) a special verdict, or (2) a general verdict with special interrogatories. A challenge to a special verdict need not be preserved before the jury is discharged, but a challenge to a general verdict with interrogatories must be raised before discharge or it is waived.
The Jury Verdict Form
The trial court submitted a verdict form to the jury labeled “SPECIAL VERDICT FORM-DEFENDANT NESTOR.” In relevant part, the verdict form asked:
SECTION I: PRESTON NUNN’S EXCESSIVE FORCE CLAIM AGAINST GABRIEL NESTOR
1. Did Defendant Gabriel Nestor deprive Plaintiff Preston Nunn of his constitutional right to be free from excessive force?
Yes X No
. . . .
(a). Did Defendant Gabriel Nestor deprive Plaintiff Preston Nunn of his constitutional right to be free from excessive force when he pointed his duty weapon at Plaintiff Nunn?
Yes X No
(b). Did Defendant Gabriel Nestor deprive Plaintiff Preston Nunn of his constitutional right to be free from excessive force when he used his Taser on Plaintiff Nunn?
Yes No X
. . . .
SECTION II: PRESTON NUNN’S UNREASONABLE SEIZURE CLAIM AGAINST GABRIEL NESTOR
1. Did Defendant Gabriel Nestor deprive Plaintiff Preston Nunn of his constitutional right to be free from unlawful seizure?
Yes No X
The Division’s Analysis
The Division began by highlighting that Colo. R. Civ. P. 49 is identical to Fed. R. Civ. P. 49, and that the Division may look to federal authority for guidance in construing the Colorado rule.
The division recognized that the Colorado Rules of Civil Procedure contemplate three types of verdicts and described each as follows:
- General Verdict: A verdict by which the jury finds in favor of one party or the other, as opposed to resolving specific legal questions. The hallmark of a general verdict is that it requires the jury to announce the ultimate legal result of each claim and leaves nothing for the judge to do other than enter judgment.
- Special Verdict: A verdict in which the jury makes findings only on factual issues submitted by the judge, and the judge decides the legal effect of those findings. It is a special verdict only if the judgment itself requires the judge to apply the law to the facts found by the jury.
- General Verdict with Interrogatories: A verdict that combines a general verdict with factual questions that, standing alone, would be special verdicts. If the court asks for a general verdict, then any factual question is an interrogatory.
The division reaffirmed that if a party fails to object to a Rule 49(b) general verdict accompanied by answers to interrogatories before the jury is discharged, the party waives any later challenge based on an alleged inconsistency. A timely objection matters because it gives the trial court the option to send the jury back for further deliberations.
The division next examined the language of the verdict form, which was labeled as a “Special Verdict Form.” The form asked the jury:
- “Did Defendant Nestor deprive Plaintiff Preston Nunn of his constitutional right to be free from excessive force?”
- “Did Defendant Nestor deprive Plaintiff Preston Nunn of his constitutional right to be free from unlawful seizure?”
The division concluded that those questions required the jury to decide the ultimate legal result of each claim. By answering these questions, the jury left nothing for the court to do but enter judgment. All remaining factual questions were therefore interrogatories accompanying a general verdict under Rule 49(b).
The verdict form’s label as a “Special Verdict Form” did not change the conclusion because the label given to a verdict form is not controlling.
Accordingly, the division held Nestor needed to object to any inconsistencies before the jury was discharged to preserve the issue for appellate review. Because he didn’t object, Nestor was barred from raising his inconsistent-verdict argument on appeal.
Implications
In order to preserve its rights to appeal, a party should object to a plausible verdict-inconsistency issue before the jury is discharged. Waiting until post-trial motions or appeal risks waiver of the objection if the verdict is later characterized as a general verdict or a general verdict accompanied by answers to interrogatories.
In addition, parties should examine the verdict form’s language, not just the label. If the form requires the jury to determine liability or damages and leaves only entry of judgment for the court, the form may be treated as a general verdict even if it is labeled as a “Special Verdict Form.” The division’s decision also reinforces the importance of preserving objections in real time. This preserves the client’s right to challenge a verdict’s consistency on appeal.
This decision clarifies the boundaries between special verdicts and general verdicts (including general verdicts with interrogatories). The division’s reasoning reinforces that substance—not the form’s label—controls the classification.
The Court of Appeals affirmed.
The opinion was authored by Judge Moultrie, Judges Gomez and Berger concurring.
For questions about this legal alert, please contact a member of the Davis Graham Appellate Group.