Rehearing Denied February 21, 2019
[Copyrighted Material Omitted]
Jefferson County District Court No. 96CV1028, Honorable
Randall C. Arp, Judge
Steiert, P.C., Christopher J. Forrest, Stephen J. Woolsey,
Littleton, Colorado, for Plaintiff-Appellant
Office of Ahson Wali LLC, Ahson B. Wali, Greenwood Village,
Colorado, for Defendant-Appellee
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. Aunes 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. Aunes 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 courts judgment and remand the case for
reinstatement of the default judgment.
3] This case comes to us under unusual
circumstances. Though asked to consider whether the district
court erred in vacating Mr. Tallmans default judgment
obtained nearly two decades ago, we are limited by the
district courts 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 courts
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. Tallmans 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 courts record.
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;
• "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)"; 
• more than thirty days had passed since "personal
• Mr. Aune had not answered or responded.
7] The default motion was verified via Mr. Tallmans
counsels sworn and notarized statement that the information
was "true to the best of [his] knowledge, information
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. Tallmans
verified motion for default judgment. In the 1996 default
judgment, the court made the following relevant factual
• The complaint was filed on May 23, 1996.
• "Service was effectuated on [Mr. Aune] on July
• 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 ...