Richard G. Minshall and Vicky L. Minshall, Plaintiffs-Appellees,
David K. Johnston, Defendant-Appellant.
of Appeals No. 17CA0407 City and County of Denver District
Court No. 15CV34174 Honorable Catherine Lemon, Judge
Honorable Edward D. Bronfin, Judge
Gleason Wells, P.C., Todd A. Wells, Denver, Colorado, for
Semmens Law, P.C., Damon M. Semmens, Denver, Colorado, for
1 The district court entered a default judgment against
defendant, David K. Johnston, when he failed to respond to a
complaint filed by plaintiffs, Richard G. Minshall and Vicky
L. Minshall. Johnston was not personally served with process;
instead, the court permitted substituted service under
C.R.C.P. 4(f) on the registered agent of Aries Staffing LLC
(Aries), a corporation of which Johnston was a co-owner and
2 Some six months after he claimed that he learned about the
entry of the default judgment, Johnston moved pro se to set
it aside. He vaguely asserted in the district court, and
explicitly argues here, that the judgment was void because
the Minshalls did not properly serve him with process. The
district court denied the motion and Johnston appeals.
3 We agree with most of the district court's analysis.
However, the record is insufficient to determine whether
service on Aries' corporate agent for service of process,
Incorp Services Inc. (Incorp), was "reasonably
calculated to give actual notice" of the case to
Johnston. See C.R.C.P. 4(f). Because that is an
essential condition of valid substituted service under Rule
4(f), we must vacate the district court's order denying
Johnston's motion to set aside the judgment and remand
for the court to determine whether service on Incorp was
"reasonably calculated to give actual notice" to
Johnston. We reject all of Johnston's other contentions.
Relevant Facts and Procedural History
4 The Minshalls alleged in their complaint that they made two
loans to Aries, neither of which was repaid. Johnston was not
an obligor on either loan.
5 Johnston was a co-founder and shareholder of Aries. The
Minshalls pleaded that Aries was Johnston's alter ego and
that Johnston was liable for Aries' debts, including the
two loans. See In re Phillips, 139 P.3d 639, 644
(Colo. 2006) ("Individual liability is appropriate when
the corporation is merely the alter ego of the shareholder .
. . ."). In addition to the alter ego claim, the
Minshalls pleaded claims of breach of contract and unjust
enrichment against Aries, and claims of promissory estoppel,
deceit based on fraud or false representation, and negligent
misrepresentation against both Aries and Johnston.
6 The Minshalls served Aries through its corporate agent for
service of process, Incorp. Aries defaulted, and the district
court entered a default judgment against Aries, which Aries
did not appeal.
7 The Minshalls had great difficulty, however, attempting to
serve Johnston personally under C.R.C.P. 4(e). Because the
Minshalls were unsuccessful in personally serving Johnston,
they moved to serve him by mail, purportedly under Rule 4(f).
The district court correctly denied that motion because
Rule 4(f) does not allow for service on a party by mail.
Rather Plaintiffs' motion must identify a separate,
appropriate person on whom process will be hand delivered.
Because Plaintiffs' Motion does not identify such a
person, substitute service under rule 4(f) is not proper.
8 The Minshalls then filed an amended motion under Rule 4(f),
this time procedurally complying with that rule by
designating a "person, " Incorp, as the
"appropriate person on whom process will be hand
delivered." The court granted the amended motion and the
Minshalls served Johnston though Incorp as authorized by the
court's order. (Incorp had already been served when
service was obtained on Aries, so it was served a second
9 When Johnston failed to answer the complaint, the court
entered a default judgment against him. Months later, he
moved pro se (without identifying any particular rule in
support of his motion) to set aside the judgment, claiming he
only learned of the complaint when the Minshalls recorded a
judgment lien on his property in Georgia.
II. While The Minshalls Complied With Some of Rule 4(f)'s
Requirements, The Record Is Insufficient To Determine If All
of The Requirements Were Satisfied
10 Johnston raises the same argument on appeal (now through
counsel) that we liberally construe his motion to set aside
the default judgment to have raised before the district court
that the judgment entered against him is void for lack of
jurisdiction under C.R.C.P. 60(b)(3). See C.J.C. 2.6
cmt. 2; People ...