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Tallman v. Aune

Court of Appeals of Colorado, Sixth Division

January 24, 2019

Michael Eugene TALLMAN, Plaintiff-Appellant,
Richard AUNE, Defendant-Appellee.

          Rehearing Denied February 21, 2019

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[Copyrighted Material Omitted]

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          Jefferson County District Court No. 96CV1028, Honorable Randall C. Arp, Judge

         Miller Steiert, P.C., Christopher J. Forrest, Stephen J. Woolsey, Littleton, Colorado, for Plaintiff-Appellant

         The Law Office of Ahson Wali LLC, Ahson B. Wali, Greenwood Village, Colorado, for Defendant-Appellee


         DUNN, JUDGE

         [¶ 1] Michael Eugene Tallman obtained a default judgment in 1996 against Richard Aune. Twenty years after the judgment entered, and after the court file had been destroyed, the district court granted Mr. Aune’s motion to vacate the default judgment under C.R.C.P. 60(b)(3), finding that Mr. Tallman "failed to establish by clear and convincing evidence that [Mr. Aune] was ever properly served in this case." Mr. Tallman asks us to reverse that ruling because, in his view, (1) the district court erred in declining to apply the presumption of regularity to the default judgment and presume it was entered with jurisdiction and (2) Mr. Aune’s unsworn statements in his motion to vacate the default judgment were not sufficient to overcome the presumption of regularity or meet his threshold burden to establish that the default judgment was void.

         [¶ 2] Because we agree with Mr. Tallman, we reverse the district court’s judgment and remand the case for reinstatement of the default judgment.

          I. Background

          A. The Court Record

         [¶ 3] This case comes to us under unusual circumstances. Though asked to consider whether the district court erred in vacating Mr. Tallman’s default judgment obtained nearly two decades ago, we are limited by the district court’s destruction of the case file under its records retention policy (nearly fifteen years after the default judgment entered). Only the register of actions survived the purge, reflecting what was filed and when. Nothing in the register indicated that the parties were notified about the records retention policy or the destruction of the case file.

         [¶ 4] While the original court pleadings were destroyed, Mr. Tallman possessed copies of two pleadings that his attorney had, at some point, provided him: (1) the September 1996 "verified motion for entry of default" (default motion) and (2) the district court’s December 1996 "judgment and order" entering default judgment against Mr. Aune (1996 default judgment). Given the destruction of the case file, Mr. Tallman filed a verified motion for new order or record under section 13-1-104, C.R.S. 2018, asking the court to enter the two pleadings in "the record with the same effect which the original record would have had if [the pleadings] had not been lost or destroyed." Mr. Aune did not dispute that the two pleadings in Mr. Tallman’s possession were true and accurate. The district court granted the motion, making these pleadings part of the record.

         [¶ 5] We therefore take the facts and procedural history from the register of actions and the limited replaced portions of the district court’s record.

          B. The 1996 Default Judgment

         [¶ 6] Those records show that Mr. Tallman filed a complaint against Mr. Aune in 1996. Mr. Aune did not file an answer or otherwise respond to the complaint. Mr. Tallman then filed the default motion under C.R.C.P. 55. As relevant here, the motion stated that

• Mr. Tallman filed his complaint on May 23, 1996;

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• "a copy of the [c]omplaint and [s]ummons was served upon [Mr. Aune] in Honolulu, Hawaii, on July 16, 1996, a copy of which [was] filed with this Court, (See copy of [s]ummons and [a]ffidavit attached hereto as Exhibits 1 and 2, respectively)"; [1]

• more than thirty days had passed since "personal service"; and
• Mr. Aune had not answered or responded.

         [¶ 7] The default motion was verified via Mr. Tallman’s counsel’s sworn and notarized statement that the information was "true to the best of [his] knowledge, information and belief."

         [¶ 8] The surviving register of actions showed several entries consistent with the default motion, including a complaint filed on May 23, 1996, "SVC" on July 16, 1996, and "[s]ummons" on August 2, 1996. The register of actions also reflected that the clerk of court entered default in October 1996.

         [¶ 9] The district court later granted Mr. Tallman’s verified motion for default judgment. In the 1996 default judgment, the court made the following relevant factual findings:

• The complaint was filed on May 23, 1996.
• "Service was effectuated on [Mr. Aune] on July 16, 1996."
• A responsive pleading "should have been filed" no later than August 15, 1996.
• Mr. Tallman had "complied with all applicable rules for entry of default ...

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