Hopkins v. Coffelt

• Court: Colorado Court of Appeals
• Decided: March 6, 2025
• Docket: 24CA0547
• Status: Unpublished

Opinion

24CA0547 Hopkins v Coffelt 03-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0547 Fremont County District Court No. 23CV17 Honorable Lynette M. Wenner, Judge

Ashlea A. Hopkins,

Plaintiff-Appellee,

v.

Joseph M. Coffelt,

Defendant-Appellant.

ORDER AFFIRMED

Division V Opinion by JUDGE FREYRE Schock and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 6, 2025

Ashlea A. Hopkins, Pro Se

Gardner Legal Services, LLC, Matthew R. Gardner, Linton Wright, Boulder, Colorado, for Defendant-Appellant ¶1 Defendant, Joseph M. Coffelt, appeals the district court’s order

denying his motion to set aside the default judgment entered in

favor of plaintiff, Ashlea A. Hopkins. We affirm.

I. Background

¶2 In November 2020, Hopkins purchased a home and Coffelt

was the real estate broker overseeing the sale. Following the

property’s inspection, the inspector recommended that a licensed

HVAC professional service and fully evaluate the heating system

before closing. At the closing, both Coffelt and the seller assured

Hopkins that the heating system had been inspected by a licensed

HVAC professional and that the heating system had been fixed and

was running properly.

¶3 Three months later, Hopkins awoke in the night to the smell of

gas. She and her son left the house and stayed with family the

following night. An HVAC professional then informed her that the

heater had not been inspected or repaired as represented, and that

a professional would not have legally signed off on it in its current

condition.

¶4 On April 2, 2022, Hopkins sent a demand letter to Coffelt via

email explaining what had happened and asking what he could do

1 to remedy the situation. Coffelt responded that it was not his

responsibility. On April 4, Hopkins’ paralegal emailed Coffelt again

about the situation and was met with a similar response. On April

5, Hopkins filed a claim with her homeowners insurance company.

The claim was later denied because the heater constituted a

preexisting condition not covered by her policy, which she obtained

after the closing. On December 20, Hopkins sent another email to

Coffelt asking if he would like to go to mediation. Coffelt did not

respond.

¶5 Hopkins filed suit on February 17, 2023, alleging negligence,

fraud, unethical conduct, misrepresentation, bodily injury and

property damage, failure to disclose a property defect, breach of

duty, and misleading the buyer. Hopkins attempted to serve Coffelt

on multiple occasions, including on March 26 and March 30. On

March 31, a process server, Andrea Meyers, attempted to serve

Coffelt, but he refused service. Around this time, Coffelt learned of

the lawsuit from his supervisor, who had been served with a delay

reduction order.

¶6 On June 6, another process server, Holly Papasodora, served

Coffelt and attested to service of the complaint in her affidavit.

2 When Coffelt did not file an answer, Hopkins filed a motion for entry

of default judgment on June 29. The district court conducted a

damages hearing on August 1. In a written order dated September

12, the court granted the motion for entry of default judgment and

awarded Hopkins $1,000,000 in damages.

¶7 After receiving the notice of the default judgment, Coffelt

retained counsel and moved for relief from the default judgment

under C.R.C.P. 60(b). In his motion, Coffelt argued that he would

have answered the complaint but was never served the summons.

Tracking the three-factor analysis from Buckmiller v. Safeway

Stores, Inc., 727 P.2d 1112, 1116 (Colo. 1986), and Goodman

Associates, LLC v. WP Mountain Properties, LLC, 222 P.3d 310, 319

(Colo. 2010), he further argued that he had meritorious defenses

and that equitable considerations weighed in his favor.

¶8 At the hearing on the motion to set aside the default judgment,

Coffelt testified that he called the court phone number on the delay

reduction order after it was received by his supervisor. He said he

was told by a court representative that there was nothing for him to

do at the time and that he would have to wait until he received the

summons. While conceding that he received the complaint, Coffelt

3 maintained that he was never served with the summons, despite an

affidavit that Papasodora submitted in advance of the hearing

attesting to the contrary. After he was served with the complaint,

he called the court again because he was unsure of how to proceed.

A court representative instructed him to search for his case online,

but Coffelt was unable to locate his case due to issues that the

court was having with its website at the time. Coffelt’s wife testified

that she reviewed the documents that Coffelt received on June 6

and that they did not include a summons. Coffelt argued that

excusable neglect existed because he never received a summons

and because there was no proof of service produced by Hopkins at

the hearing. He further argued that after receiving the complaint,

he relied on the information provided by the court’s

self-representation line that he did not need to do anything until he

received the summons.

¶9 Hopkins testified that she printed out the paperwork herself

and that the file she gave to the process servers included the

complaint, summons, and cover sheet. She testified that the

process servers double-checked the paperwork.

4 ¶ 10 Meyers testified that she attempted to serve Coffelt twice. On

June 6, she examined the file’s contents, confirmed it was more

than just the complaint, and gave the file to Papasodora, who was

training as a process server. The two drove to Coffelt’s house, and

Meyers watched Papasodora personally serve Coffelt in his

driveway.

¶ 11 Papasodora testified that the file she served on Coffelt

contained a cover page, summons, and complaint. She handed

Coffelt the file in his driveway. Initially, Papasodora’s affidavit

stated she had served Coffelt with the complaint. She corrected her

affidavit on January 29 to reflect that she had served Coffelt with

the cover sheet, complaint, and summons.

¶ 12 The district court denied Coffelt’s motion to set aside and

found that he failed to establish excusable neglect. The district

court found that Coffelt was thoroughly aware that Hopkins was

pursuing legal action against him and knew that numerous

attempts had been made to serve him. The court was not

persuaded by Coffelt’s reliance on the self-represented litigant

coordinator telling him that he did not need to do anything until

served with a summons because that conversation would have

5 taken place before the register of actions contained a return of

service.

¶ 13 Similarly, the court was not persuaded by Coffelt’s testimony

that he contacted the court after his supervisor received a delay

reduction order but before he received a phone call from the process

server because, again, the register of actions did not show a return

of service at that time. The court found that Coffelt’s testimony

established that as of June 6, when he was subsequently served

with the summons, Coffelt knew, not only from the summons but

also from the court representative, that he needed to respond.

¶ 14 Additionally, the district court found that the misidentification

of items served by Papasodora on the original affidavit of service did

not invalidate the proof of service. The court found Papasodora’s

and Meyer’s testimony credible on this point.

¶ 15 Finally, considering and weighing the excusable neglect

testimony, meritorious defenses, and equity of the parties, the court

found that the equities favored Hopkins.

¶ 16 On appeal, Coffelt contends that the district court reversibly

erred by failing to (1) require Hopkins to prove, by clear and

convincing evidence, that she properly served Coffelt a summons

6 under C.R.C.P. 60(b)(3); and (2) properly consider whether relief

from the default judgment would be consistent with considerations

of equity. Initially, we note, and Coffelt concedes, that his proof of

service argument was made to the district court under C.R.C.P.

60(b)(1), while here he asks us to review that same issue under

C.R.C.P. 60(b)(3). We decline to do so because it was not preserved.

Gf Gaming Corp. v. Taylor, 205 P.3d 523, 528 (Colo. App. 2009).

Accordingly, we address Coffelt’s arguments solely under C.R.C.P.

60(b)(1).

II. C.R.C.P. 60(b)(1)

¶ 17 Coffelt contends the court erred by failing to require Hopkins

to prove adequate service and by failing to properly weigh and

consider the equity of the parties in denying his motion to set aside

the default judgment.1 We are not persuaded and discern no abuse

of discretion in the court’s findings.

A. Standard of Review and Applicable Law

¶ 18 We review the district court’s denial of relief under Rule 60(b)

for an abuse of discretion. Goodman Assocs., LLC, 222 P.3d at 314.

1 Coffelt does not appeal the damages award, and we do not address

it.

7 “Abuse of discretion exists where a decision is manifestly arbitrary,

unreasonable, or unfair.” Id. A court also abuses its discretion if

its decision is based on a misapplication of the law. Ferraro v. Frias

Drywall, LLC, 2019 COA 123, ¶ 10.

¶ 19 “To set aside a judgment under C.R.C.P. 60(b), the movant

bears the burden of establishing by clear and convincing evidence

that the motion should be granted.” Goodman Assocs., LLC, 222

P.3d at 315. Clear and convincing evidence is evidence that is

highly probable and free from serious or substantial doubt. L.S.S.

v. S.A.P., 2022 COA 123, ¶ 39. At its core, the decision whether to

set aside a default judgment is an equitable decision designed to

balance the finality of judgments and the need to provide relief in

the interests of justice in exceptional circumstances. Goodman

Assocs., LLC, 222 P.3d at 319.

¶ 20 Courts consider three factors when determining whether to

relieve a party from default judgment under C.R.C.P. 60(b)(1): “(1)

whether the neglect that resulted in the entry of judgment by

default was excusable; (2) whether the moving party has alleged a

meritorious claim or defense; and (3) whether relief from the

challenged order would be consistent with considerations of equity.”

8 McMichael v. Encompass PAHS Rehab. Hosp., LLC, 2023 CO 2, ¶ 13

(quoting Buckmiller, 727 P.2d at 1116). “[E]ach factor must be

weighed and considered together as part of the question whether

excusable neglect exists to satisfy C.R.C.P. 60(b)(1).” Goodman

Assocs., LLC, 222 P.3d at 320. A court’s consideration of these

factors must be guided by the general rule that motions to set aside

default judgments “should be liberally construed in favor of the

movant, especially where the motion has been promptly made.”

Craig v. Rider, 651 P.2d 397, 402 (Colo. 1982); see also Goodman

Assocs., LLC, 222 P.3d at 320. A district court may deny a motion

to set aside a default judgment if the moving party fails to establish

any one of these factors by clear and convincing evidence.

McMichael, ¶ 13; Goodman Assocs., LLC, 222 P.3d at 321;

Buckmiller, 727 P.2d at 1116.

B. Analysis

1. Proof of Service

¶ 21 We begin with Coffelt’s contention that the court improperly

placed the burden of proving sufficient service of process on him

rather than Hopkins. See Goodman Assocs., LLC, 222 P.3d at 315

(“[T]he burden may shift back to the plaintiff if the return of service

9 insufficiently recites the essential facts to demonstrate adequacy of

service.”). He relies on the district court’s conclusion that Coffelt

failed “to carry his burden of proof.”

¶ 22 Coffelt acknowledges in a footnote in the opening brief that

this issue is more properly analyzed under C.R.C.P. 60(b)(3) and

that he only raised C.R.C.P. 60(b)(1) in his motion to set aside the

default judgment. Because we do not consider issues raised for the

first time on appeal, we conclude that this issue is not preserved for

our review and we do not consider it further. Gf Gaming Corp., 205

P.3d at 528 (“Issues not presented to or raised at the trial court will

not be considered on appeal.”); see also Garcia v. Puerto Vallarta

Sports Bar, LLC, 2022 COA 17, ¶ 26 (a party may waive a challenge

to personal jurisdiction by failing to timely assert it).

¶ 23 Nor can we consider Coffelt’s burden-shifting argument under

C.R.C.P. 60(b)(1). The supreme court in Goodman noted that the

burden of proving adequate service of process can sometimes shift

to the plaintiff in the context of explaining the burden of proving

personal jurisdiction (or lack thereof) under C.R.C.P. 60(b)(3). 222

P.3d at 315. Indeed, the sole case cited by the Goodman court for

its burden-shifting statement, Denman v. Great W. Ry. Co., 811

10 P.2d 415, 418 (Colo. App. 1990), involved only personal jurisdiction,

not a claim of mistake, inadvertence, surprise, or excusable neglect.

A division of this court has similarly analyzed Goodman’s burden-

shifting rationale under C.R.C.P. 60(b)(3). See Tallman v. Aune,

2019 COA 12, ¶¶ 21, 24-28. Given this, we decline to analyze

Coffelt’s burden-shifting argument under C.R.C.P. 60(b)(1).

¶ 24 To the extent Coffelt challenges the sufficiency of the affidavit

of service under C.R.C.P. 60(b)(1), he relies on the conflict between

the initial affidavit and corrected affidavit and argues that

Papasodora’s testimony concerning the discrepancies was not

credible. In essence, he asserts that because he never received a

summons, he was excused from answering the complaint.

However, appellate courts may not reweigh the evidence or make

credibility findings. People v. Poe, 2012 COA 166, ¶ 14. Instead, we

must defer to the district court’s finding that Papasodora’s

testimony was credible and, together with the testimony of Meyers,

established by clear and convincing evidence that Coffelt had been

properly served with the complaint and summons. See Shekarchian

v. Maxx Auto Recovery, Inc., 2019 COA 60, ¶ 28. Moreover, we

construe the court’s finding that Coffelt failed “to carry his burden

11 of proof” as a finding under C.R.C.P. 60(b)(1), not C.R.C.P. 60(b)(3).

Again, the latter rule was never argued to the court. Accordingly,

we discern no basis to reverse.

2. Considerations of Equity

¶ 25 We next consider Coffelt’s contention that the court failed to

properly consider the third Goodman factor, equitable

considerations. Notably, Coffelt does not challenge the court’s

finding that he failed to establish excusable neglect, which alone

justifies our affirmance of the court’s order denying his motion. See

Buckmiller, 727 P.2d at 1116. Nevertheless, we address his

contention as to the third factor and discern no abuse of discretion

in the court’s consideration of it.

¶ 26 In determining whether Rule 60(b) relief would be consistent

with equitable considerations, a district court should take into

account the promptness of the moving party in filing the Rule 60(b)

motion, the fact of any detrimental reliance by the opposing party

on the order or judgment of dismissal, and any prejudice to the

opposing party if the motion were to be granted, including any

12 impairment of that party’s ability to adduce proof at trial in defense

of the claim. Buckmiller, 727 P.2d at 1116.

¶ 27 We are unpersuaded by Coffelt’s reliance on Buckmiller. In

Buckmiller, the court reversed a district court’s denial of a C.R.C.P.

60(b)(1) motion because the district court only partially considered

the third factor. The court stated:

Although the trial court did conclude in a general way that the prejudice to [defendant] from granting Buckmiller’s motion would outweigh any wrong to Buckmiller from denying her motion, there is no indication that it had considered such factors as the timing of Buckmiller’s motion, any possible reliance by [defendant] on the judgment of dismissal, and the manner in which [defendant’s] defense of the case might somehow have been damaged by lost evidence, the passage of time, or some other factor. Consideration of these particulars might well have altered the trial court’s decision on Buckmiller’s motion.

Buckmiller, 727 P.2d at 1117.

¶ 28 Here, the district court found that the equities favored

Hopkins:

She has shown that insurance coverage of defendant’s actions is unavailable to her, despite her efforts to ferret it out. Because of the damage to the home, which she attributes to defendant’s conduct in the real estate transaction, she has no source of heat, must

13 make extensive and expensive repairs, and is financially unable to repair the home to make it livable for her and her son. Plaintiff’s evidence is clear and convincing; defendant’s is not. Defendant fails to carry his burden of proof.

¶ 29 We conclude that the district court properly considered the

third factor in its analysis. Earlier in the order, the district court

found that Coffelt was thoroughly aware that Hopkins was pursuing

legal action against him and also found that Coffelt’s testimony

about his reliance on the self-represented litigant coordinator’s

guidance was not credible. Despite this awareness, Coffelt waited

until after the judgment entered to take any action; so although the

motion to set aside was timely filed, its filing was avoidable before

judgment entered. Moreover, the district court’s analysis focused

on the extent to which Hopkins would be prejudiced if the court

granted Coffelt’s motion by detailing her inability to obtain

insurance coverage and her resulting financial inability to repair the

home to make it livable, which would have been exacerbated by

further delay in the litigation. Accordingly, we conclude that the

district court properly considered the third Goodman factor.

14 III. Disposition

¶ 30 The order is affirmed.

JUDGE SCHOCK and JUDGE SULLIVAN concur.