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
Law 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. 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.
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.
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
• more than thirty days had passed since "personal
• 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
• 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 judgment."
• Mr. Tallman was entitled to judgment in the amount of
• And Mr. Tallman was "entitled to execute upon
this judgment in accordance with law."
10 The 1996 default judgment was signed by District Court
Judge Kenneth Barnhill and dated December 11, 1996. It was