24CA1967 Leventhal v Jensen 10-30-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1967 El Paso County District Court No. 23CV32027 Honorable Eric Bentley, Judge
Leventhal Lewis Kuhn Taylor Swan P.C.,
Plaintiff-Appellee,
v.
Kristoffer Odin Jensen and Amanda Michelle Lancaster,
Defendants-Appellants.
JUDGMENT AFFIRMED
Division II Opinion by JUDGE BROWN Fox and Meirink, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 30, 2025
Lahti Helfgott LLC, Jonathan A. Helfgott, Denver, Colorado, for Plaintiff- Appellee
Springer and Steinberg, P.C., Jeffrey A. Springer, Joel A. Richardson, Denver, Colorado, for Defendants-Appellants ¶1 Defendants, Kristoffer Odin Jensen and Amanda Michelle
Lancaster, appeal the district court’s order entering judgment in
favor of plaintiff, Leventhal Lewis Kuhn Taylor Swan P.C. (the firm).
Defendants contend that the court erred by (1) denying their motion
to dismiss for lack of personal jurisdiction; (2) entering default
against them; (3) denying their motion to set aside default;
(4) denying their request to testify remotely; and (5) awarding the
firm all requested damages, including treble damages. We affirm.
I. Background
¶2 The firm is a Colorado-based law firm. Defendants are
attorneys who reside in Alaska. In early 2023, defendants agreed to
open a branch office of the firm in Anchorage, Alaska, but the
parties’ relationship deteriorated quickly. By August, defendants
decided to terminate their affiliation with the firm. In October, the
firm sued defendants in Colorado for civil theft, conversion, unjust
enrichment, constructive fraud, civil conspiracy, violation of the
Colorado Organized Crime Control Act (COCCA), breach of duty of
loyalty, misappropriation of business advantage, breach of contract,
declaratory relief, and accounting.
1 ¶3 More than three weeks beyond their deadline to respond to the
complaint, and after the firm first moved for entry of clerk’s default,
defendants filed a C.R.C.P. 12(b)(2) motion to dismiss for lack of
personal jurisdiction. The district court denied the firm’s request
for entry of default as moot and considered the defendants’
untimely motion but nevertheless denied it on February 1, 2024.
When defendants failed to timely file an answer following the court’s
order, the firm again moved for entry of default. The court granted
the motion on March 20.
¶4 On April 1, forty-six days late, Lancaster filed an untimely
answer that substantively stated, in its entirety: “(1) - (11) Denial of
all [c]laims and damages.” The firm moved for entry of default
judgment and requested a hearing on damages. Lancaster filed a
motion to set aside entry of default. The court denied the motion
and set a damages hearing. At that hearing, the court ruled orally
and awarded the firm damages, including treble damages, totaling
$379,711.47. The court incorporated its oral ruling into a written
judgment entered the same day.
2 II. Personal Jurisdiction
¶5 Defendants contend that the district court erred by denying
their C.R.C.P. 12(b)(2) motion to dismiss and exercising personal
jurisdiction over them. We disagree.
A. Standard of Review
¶6 We review de novo whether a trial court has personal
jurisdiction over a party. Giduck v. Niblett, 2014 COA 86, ¶ 11. We
also review de novo a court’s ruling without a hearing on a C.R.C.P.
12(b)(2) motion to dismiss. Align Corp. Ltd. v. Boustred, 2017 CO
103, ¶ 8.
¶7 When a court decides a C.R.C.P. 12(b)(2) motion on the
documentary evidence alone, the plaintiff need only make a prima
facie showing of personal jurisdiction. Archangel Diamond Corp. v.
Lukoil, 123 P.3d 1187, 1192 (Colo. 2005). That burden is satisfied
when “the plaintiff raises a reasonable inference that the court has
jurisdiction over the defendant.” Id. “The purpose of the light
prima facie burden of proof at this early stage of litigation is simply
to screen out ‘cases in which personal jurisdiction is obviously
lacking, and those in which the jurisdictional challenge is patently
3 bogus.’” Id. (quoting Foster-Miller, Inc. v. Babcock & Wilcox Can., 46
F.3d 138, 145 (1st Cir. 1995)).
¶8 In resolving the motion, the court must accept as true the
allegations in the complaint and the affidavits or other evidence
submitted by the plaintiff unless contradicted by competent
evidence submitted by the defendant. Goettman v. N. Fork Valley
Rest., 176 P.3d 60, 66 (Colo. 2007). If the parties submit conflicting
competent evidence, any discrepancies must be resolved in favor of
exercising jurisdiction. Id.
B. Law Governing Personal Jurisdiction
¶9 “For a Colorado court to exercise jurisdiction over a
non-resident defendant, the court must comply with Colorado’s
long-arm statute and constitutional due process.” Align Corp. Ltd.,
¶ 9; see also § 13-1-124, C.R.S. 2025. Colorado’s long-arm statute
extends the state’s jurisdiction to the maximum limit permitted by
the Due Process Clauses of the United States and Colorado
Constitutions. Goettman, 176 P.3d at 67. Thus, if the
constitutional requirements are satisfied, the long-arm statute is
also satisfied. Found. for Knowledge in Dev. v. Interactive Design
Consultants, LLC, 234 P.3d 673, 677 (Colo. 2010).
4 ¶ 10 Due process requires that a defendant have “certain minimum
contacts with the forum state so that he may foresee being
answerable in court there.” Archangel, 123 P.3d at 1194. The
quantity and quality of the contacts required for a court to exercise
personal jurisdiction depends on whether a plaintiff alleges general
or specific jurisdiction. Goettman, 176 P.3d at 67. Here, the firm
alleged specific jurisdiction. To assess whether a nonresident
defendant has sufficient minimum contacts to justify the exercise of
specific personal jurisdiction, a court must assess whether (1) the
defendant “‘purposefully directed’ its activities at residents of the
forum state,” and (2) “the plaintiff’s injuries . . . ‘arise out of or
relate to’ the defendant’s forum-related activities.” State ex rel.
Weiser v. JUUL Labs, Inc., 2022 CO 46, ¶ 37 (quoting Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)).
¶ 11 Once a court is satisfied that a defendant has the requisite
minimum contacts with the forum state, these contacts must be
separately analyzed “to determine whether the assertion of personal
jurisdiction would comport with fair play and substantial justice.”
Archangel, 123 P.3d at 1195 (quoting Keefe v. Kirschenbaum &
Kirschenbaum, P.C., 40 P.3d 1267, 1271 (Colo. 2002)). Factors a
5 court examines include “the burden on the defendant, the forum
state’s interest in resolving the controversy, and the plaintiff’s
interest in attaining effective and convenient relief.” Id. Ultimately,
the inquiry turns on whether the exercise of personal jurisdiction is
reasonable under the circumstances surrounding the case. Id.
C. Additional Background
¶ 12 In its complaint, the firm asserted contract and tort-based
claims against defendants. It alleged that the district court had
personal jurisdiction over defendants because they transacted
business within Colorado and committed tortious acts expressly
aimed at Colorado with the knowledge that those acts would cause
injuries in the state. In opposing defendants’ motion to dismiss, the
firm submitted a declaration from shareholder Michael D. Kuhn.
Collectively, the complaint and declaration alleged the following
relevant facts, which we presume are true for purposes of analyzing
personal jurisdiction.
¶ 13 In early 2023, Jensen initiated discussions with a firm
shareholder about joining the firm because he and Lancaster were
planning to leave their employment. The parties had a series of
discussions by phone and email exploring the prospect of
6 defendants opening an Anchorage office for the firm. In March,
defendants came to Colorado and had lengthy meetings spanning
two days to negotiate the terms that would govern their business
relationship. Although defendants prepared and submitted a
proposed term sheet while they were in Colorado, they did not sign
a contract at that time. The parties eventually opened a branch
office in Anchorage.
¶ 14 The firm “incurred extraordinary costs and obligations to bring
the firm’s Anchorage office into fruition.” The firm and defendants
jointly signed a commercial lease for office space in Anchorage.
Defendants used the firm’s money to buy furniture, appliances,
artwork, technology, marketing services, and web design. And the
firm purchased a premier sponsorship to increase its visibility in
the region.
¶ 15 The firm maintained a JPMorgan Chase Bank account through
the Colorado Springs branch. Because Chase Bank did not have a
branch in Alaska, however, the firm set up a KeyBank account
there to deposit unearned funds for its Alaskan clients and to
transfer money to the Chase Bank account. Defendants made
“thousands of dollars in cash withdrawals” from the KeyBank
7 account that “have not been justified.” The firm also gave
defendants credit cards linked to the Chase Bank account, and
defendants “made numerous charges on these cards, including
certain unauthorized and unreimbursed charges.” Defendants sent
client invoices through the firm’s billing system, and when clients
paid those invoices, funds were deposited into the firm’s Chase
Bank account. The firm also paid defendants’ income by electronic
transfer or check from the Chase Bank account in Colorado.
¶ 16 Within a few months, it became clear to the firm that
defendants’ “[p]rofligate spending, lack of legal experience, subpar
work, poor organization, and untrained administrative skills were
inconsistent with the [f]irm’s reputation.” In August, defendants
decided to terminate their relationship with the firm and announced
they would be opening their own firm. The firm sent defendants a
written summary of terms and conditions for closing the Anchorage
office, which noted that their affiliation would end by September 4.
Defendants did not substantively respond.
¶ 17 After the firm sent the closing letter, defendants’ billings “fell
dramatically” because they were “slow billing” clients to avoid
paying commissions to the firm. “Lancaster made hundreds of
8 dollars of personal purchases with [f]irm assets,” and defendants
spent firm assets “to acquire supplies for their new business
venture.” Defendants “misappropriated funds” owed to the firm
under a municipal contract in Alaska. Then, in September, Jensen
“illegally withdrew over $10,000 in cash from [the firm’s] KeyBank
operating account . . . with the express approval of, if not an
outright request by” Lancaster.
¶ 18 Defendants filed a C.R.C.P. 12(b)(2) motion to dismiss for lack
of personal jurisdiction. Although defendants disputed many of the
facts the firm alleged in the complaint, they did not verify the
motion or submit affidavits or other competent evidence to
contradict those facts.
D. Minimum Contacts
¶ 19 The firm sufficiently alleged that defendants “purposefully
availed [themselves] of the privilege of conducting business in the
forum state,” Found. for Knowledge in Dev., 234 P.3d at 678
(quoting Archangel, 123 P.3d at 1194), by pursuing a relationship
with a firm they knew was based in Colorado, negotiating the terms
of the business relationship in Colorado, communicating with the
firm through emails and calls, representing clients who made
9 payments to the firm in Colorado, and maintaining a business
relationship with the firm for several months. Defendants’ actions,
when considered in the aggregate, make a prima facie showing that
defendants purposefully directed their business activities at
Colorado. See Benton v. Cameco Corp., 375 F.3d 1070, 1076 (10th
Cir. 2004) (a defendant purposefully directed its activities at
Colorado when the contract was entered into with a Colorado
resident, defendant would have been required to make payments in
Colorado, defendant sent representatives to Colorado to conduct
due diligence, and defendant sent significant correspondence to
plaintiff in Colorado); see also Found. for Knowledge in Dev., 234
P.3d at 679 (a defendant purposefully directed his activities at
Colorado when he contracted with a Colorado public charity, he
traveled to Colorado numerous times, he communicated by email
and telephone with the business, the plaintiff signed the agreement
in Colorado, and the program was developed in Colorado); cf. New
Frontier Media, Inc. v. Freeman, 85 P.3d 611, 614-15 (Colo. App.
2003) (defendants did not have sufficient contacts with Colorado
when they did not enter Colorado, plaintiff initiated the transaction
out of state, due diligence was conducted out of state, the assets to
10 be purchased were out of state, the letter of interest was signed out
of state, and no activities were required in Colorado).
¶ 20 The firm also sufficiently alleged that defendants intentionally
committed tortious acts directed at Colorado knowing that the
brunt of the injury would be felt in Colorado, see JUUL Labs, ¶ 40,
by illegally withdrawing $10,000 in cash from an account owned by
the Colorado-based firm, misappropriating funds from a municipal
contract due to the firm, undermining the firm’s billing, retaining
funds they were obligated to pay the firm, and using credit cards
connected to a Colorado bank account for unauthorized purchases.
See Found. for Knowledge in Dev., 234 P.3d at 681 (a defendant’s
tortious conduct was purposefully directed at Colorado when he
knew he was negotiating with a corporation headquartered in
Colorado, he understood those communications would be received
in Colorado, and the corporation suffered the injury in Colorado).
¶ 21 Citing Far West Capital, Inc. v. Towne, 46 F.3d 1071, 1076
(10th Cir. 1995), defendants argue that withdrawing money from
the KeyBank account in Alaska was insufficient to establish that
they purposefully directed their actions at Colorado. Defendants
similarly point to Wenz v. Memery Crystal, 55 F.3d 1503, 1507-08
11 (10th Cir. 1995), in which a plaintiff alleged that defendants in
London, England, illegally disbursed his money after he sent that
money to London. But unlike Far West Capital and Wenz,
defendants’ withdrawal of money in Alaska was not the only
allegation supporting the tort claims. Defendants also slow billed
clients, retained funds due to the firm, and used credit cards linked
to the firm’s Colorado account. When defendants’ conduct is
viewed in the aggregate, it satisfies the firm’s burden to make a
prima facie showing of minimum contacts. See Found. for
Knowledge in Dev., 234 P.3d at 681.
¶ 22 Finally, it is undisputed that the business relationship
between the parties and defendants’ tortious conduct gave rise to
the litigation. See JUUL Labs, ¶ 35. Accordingly, we conclude that
the firm made a prima facie showing that defendants had sufficient
minimum contacts to justify the district court’s exercise of personal
jurisdiction. Id.
E. Reasonableness
¶ 23 In their opening brief, defendants contend that the district
court’s exercise of jurisdiction over them was unreasonable because
they were “severely prejudiced by being forced to litigate in
12 Colorado . . . in the absence of any countervailing considerations.”
They do not explain the claimed prejudice or how that prejudice
outweighed any countervailing considerations. They only
generically cite International Shoe Co. v. Washington, 326 U.S. 310,
316 (1945). And we reject their attempt to expand upon this
argument in their reply brief. See In re Marriage of Dean, 2017 COA
51, ¶ 31 (declining to consider arguments made in a reply brief that
expanded upon contentions raised in an opening brief). Because
defendants failed to develop this argument, we do not consider it
further. See S. Colo. Orthopaedic Clinic Sports Med. & Arthritis
Surgeons, P.C. v. Weinstein, 2014 COA 171, ¶ 35 (declining to
address conclusory argument presented without authority); Barnett
v. Elite Props. of Am., Inc., 252 P.3d 14, 19 (Colo. App. 2010)
(Appellate courts “will not consider a bald legal proposition
presented without argument or development.”).
13 ¶ 24 We conclude that the district court did not err by denying
defendants’ C.R.C.P. 12(b)(2) motion to dismiss and exercising
specific personal jurisdiction over defendants.1
III. Setting Aside the Entry of Default
¶ 25 Defendants contend that the district court erroneously denied
their motion to set aside default2 by (1) concluding that defendants
failed to demonstrate good cause; (2) entering default as a sanction;
(3) denying any relief as to Jensen; and (4) “disregarding”
1 To the extent defendants contend that the district court should
have held a hearing on their C.R.C.P. 12(b)(2) motion, we reject that contention. First, defendants never requested a hearing and thus waived that argument. See In re Estate of Ashworth, 2024 CO 39, ¶ 20 n.3. Second, they offered no evidence, competent or otherwise, that conflicted with the facts the firm alleged to support the exercise of personal jurisdiction, so the court was not required to hold a hearing. See Archangel Diamond Corp. v. Lukoil, 123 P.3d 1187, 1193 (Colo. 2005) (an evidentiary hearing is only necessary “when the proffered evidence is conflicting and the record is rife with contradictions, or when a plaintiff’s affidavits are patently incredible” (quoting Foster-Miller, Inc. v. Babcock & Wilcox Can., 46 F.3d 138, 145 (1st Cir. 1995))). 2 The motion also sought to set aside default judgment and
damages, but the district court had not yet entered default judgment or awarded damages.
14 Lancaster’s argument that she was protected by the
Servicemembers Civil Relief Act (SCRA).3 We perceive no error.
A. Generally Applicable Law and Standard of Review
¶ 26 Default judgment occurs in two steps: (1) entry of default by
the clerk and (2) entry of default judgment by the court. Ferraro v.
Frias Drywall, LLC, 2019 COA 123, ¶ 11; C.R.C.P. 55(a). “When a
party against whom a judgment for affirmative relief is sought has
failed to plead or otherwise defend as provided by these rules and
that fact is made to appear by affidavit or otherwise, the clerk shall
enter his default.” C.R.C.P. 55(a). An entry of default “accepts the
complaint’s allegations and establishes the defendant’s liability, but
it does not establish damages.” Ferraro, ¶ 11. After the entry of
default, the court then determines damages and enters a default
judgment. Id. at ¶ 12.
3 Defendants also contend that the district court erred by failing to
provide them an opportunity to respond to the firm’s motion under C.R.C.P. 121, section 1-15, and by entering default when they had otherwise appeared under C.R.C.P. 55(a) by filing a motion to dismiss. We decline to address these arguments because defendants did not make them to the district court. See Gebert v. Sears, Roebuck & Co., 2023 COA 107, ¶ 25 (“In civil cases, arguments never presented to, considered by, or ruled upon by a district court may not be raised for the first time on appeal.”).
15 ¶ 27 Under C.R.C.P. 55(c), a court may set aside entry of default
“[f]or good cause shown.” When considering whether a defaulting
party has demonstrated good cause, a trial court should consider
whether (1) the neglect that resulted in entry of default was
excusable; (2) the moving party alleged a meritorious claim or
defense; and (3) relief from the challenged order would be consistent
with considerations of equity. Buckmiller v. Safeway Stores, Inc.,
727 P.2d 1112, 1116 (Colo. 1986); see also Singh v. Mortensun, 30
P.3d 853, 855 (Colo. App. 2001) (the factors to be considered in
setting aside the entry of default are substantially the same as the
factors to be considering in setting aside a default judgment (citing
Buckmiller, 727 P.2d at 1116)). These factors are to be “flexibly
applied and liberally interpreted.” Singh, 30 P.3d at 855.
¶ 28 For the first factor, a party’s conduct must show more than
“[c]ommon carelessness and negligence.” Goodman Assocs., LLC v.
WP Mountain Props., LLC, 222 P.3d 310, 319 (Colo. 2010). The
circumstances surrounding the neglect should involve “unforeseen
circumstances which would cause a reasonably prudent person to
overlook a required act in the performance of some responsibility.”
Id. (citation omitted). To satisfy the second factor, a party must
16 support the asserted meritorious defense with factual allegations,
not just legal conclusions. Id. For the third factor, a court should
consider the promptness of the motion, any detrimental reliance by
the opposing party on the entry of default, the prejudice to the
opposing party if the motion were to be granted, and the prejudice
to the moving party if the motion were to be denied. Id.
¶ 29 We review a court’s interpretation of the rules of civil
procedure de novo. Home Improvement, Inc. v. Villar, 2022 COA
129, ¶ 12. But we review a trial court’s decision to grant or deny a
motion to set aside a clerk’s entry of default for an abuse of
discretion. Ferraro, ¶ 10. A court abuses its discretion when its
decision is manifestly arbitrary, unreasonable, or unfair, or when it
misapplies the law. Id. Whether to set aside an entry of default “is
at its core an equitable decision.” Goodman, 222 P.3d at 319. The
court must consider and weigh each factor, but a failure to satisfy
any one factor may result in the denial of a motion to set aside the
entry of default. Id. at 320.
B. The District Court Properly Entered Default
¶ 30 As an initial matter, to the extent that defendants contend the
district court’s entry of default was improper, we disagree.
17 ¶ 31 A defendant initially has thirty-five days to file an answer or
otherwise respond after service of a summons and complaint
outside of Colorado. C.R.C.P. 12(a)(2).4 But once the district court
denies a C.R.C.P. 12 motion, “the responsive pleadings shall be filed
within [fourteen] days after notice of the court’s action.” C.R.C.P.
12(a)(1)(A).
¶ 32 Defendants were served with the court’s order denying their
C.R.C.P. 12(b)(2) motion to dismiss on February 1, 2024. See
C.R.C.P. 5(b)(2)(B) (“Service by mail is complete on mailing[.]”).
Consequently, defendants’ deadline to file an answer was February
15.5 Lancaster filed a one-line answer on April 1. Although the
answer was purportedly filed on behalf of “Kris Kensen [sic] and
Amanda Lancaster,” Jensen did not sign it. Thus, Jensen never
filed an answer. See C.R.C.P. 11(a) (“A party who is not represented
4 Defendants do not contest that they were properly and personally
served with the summons and complaint. See C.R.C.P. 4. 5 Defendants assert that they did not receive the district court’s
order denying their motion until February 23. Even assuming that date triggered the deadline to respond — and it does not — defendants’ deadline to answer would have been March 8.
18 by an attorney shall sign his pleadings and state his address.”).6
Because defendants failed to file a timely answer, the district court
properly entered default. See C.R.C.P. 12(a)(1)(A); C.R.C.P. 55(a).
C. Good Cause
¶ 33 Defendants contend the district court abused its discretion by
concluding that defendants failed to demonstrate good cause for
setting aside the entry of default. We are not persuaded.
1. Excusable Neglect
¶ 34 Defendants contend that their neglect in failing to timely file
an answer was excusable because (1) they were not properly served
at their last known address; (2) delays in the mail hindered their
ability to timely answer; and (3) they believed they had thirty-five
days to file their answer. None of these reasons demonstrates
excusable neglect.
a. Last Known Address
¶ 35 Defendants first contend that they were not served the district
court’s order denying their motion to dismiss at their “last known
6 Although defendants are lawyers, they initially appeared in the
case as unrepresented parties, were briefly represented by counsel from June 25 to July 25, 2024, and then were unrepresented throughout the remaining proceedings.
19 address” as required by C.R.C.P. 5(b)(2), rendering service invalid
and ineffective to trigger their deadline to answer.7 Citing no
authority, defendants argue that the “last known address” is the
address listed on a party’s pleading, and the only address that was
ever listed on defendants’ pleadings was their business address.
¶ 36 The Colorado Rules of Civil Procedure do not define “last
known address,” but a division of this court looked to dictionary
definitions of the words to define the phrase for purposes of
C.R.C.P. 4(g). Villar, ¶¶ 16-17; see also Hiner v. Johnson, 2012 COA
164, ¶ 13 (we interpret rules of procedure by affording the words
their plain and ordinary meaning). Ultimately, the division defined
“address” as “the place at which a party generally recognizes that
another party can be communicated with” and “last known address”
as “the most recent such place.” Villar, ¶ 17. We agree with the
7 To the extent defendants argue their delay in filing an answer was
excusable because the firm failed to serve the motion for entry of default at defendants’ “last known address,” that argument misses the mark for two reasons. First, the firm did not have to file a motion for entry of default; C.R.C.P. 55(a) plainly directs that the clerk “shall” enter default when a party “has failed to plead or otherwise defend” without being prompted by a motion. Second, the motion for default did not trigger defendants’ answer deadline; the district court’s order denying defendants’ C.R.C.P. 12(b)(2) motion to dismiss was the trigger. See C.R.C.P. 12(a)(1).
20 Villar division’s definition and with its conclusion that the definition
“comports with due process.” Id.
¶ 37 The district court’s order denying defendants’ C.R.C.P. 12(b)(2)
motion to dismiss was served by mail on Lancaster at an address
on Quesada Avenue and on Jensen at an address on Kaskanak
Drive (residential addresses). The firm listed these residential
addresses in the summonses served on defendants when the
lawsuit commenced. It is reasonable to infer that the residential
addresses were the most recent places at which the firm recognized
it could communicate with defendants.8
¶ 38 Defendants have never disputed that the residential addresses
belonged to them and were addresses at which they could be
communicated with, nor did they offer evidence that they did not
receive the orders and other documents sent to those addresses.9
8 Indeed, the Quesada address was listed on a check the firm sent
Lancaster reimbursing her for authorized expenditures incurred in opening the Anchorage office. 9 To the extent the motion to set aside default asserted that Jensen
had “never been served a filing in this case” or “been served or sent any correspondence regarding orders from the [c]ourt,” we note that Jensen did not sign the motion, see C.R.C.P. 11(a), and defendants provided no evidence to support that broad claim. And despite the statement in the motion that defendants provided affidavits to establish the lack of notice, no such affidavits were filed.
21 The court file does not include any returned mail sent to the
residential addresses. In fact, Lancaster admitted receiving the
court’s order denying the C.R.C.P. 12(b)(2) motion, albeit after some
delay. And although Lancaster asserted that she repeatedly asked
to be served at her business address, she pointed to nothing in the
record — nor can we find anything — where such a request was
made before default entered.
¶ 39 That defendants may have preferred service at a different
address does not mean service was invalid. Because C.R.C.P.
5(b)(2)(B) authorizes service at the “last known address,” we decline
to impose additional requirements for such service. See Spahmer v.
Gullette, 113 P.3d 158, 162 (Colo. 2005) (“We will not create an
22 addition to a statute that the plain language does not suggest or
demand.”).10
¶ 40 We also reject defendants’ reliance on People v. Buscarello, in
which an attorney sent a motion to dismiss to a different address
than the one on the pleadings. 706 P.2d 805, 806 (Colo. App.
1985). Buscarello applied the 1985 version of C.R.C.P. 5(b), which
required that “[s]ervice upon the attorney or upon a party shall be
made by delivering a copy to [them] or by mailing it to [them] at
[their] address as given in the pleadings.” (Emphasis added.) Under
10 We recognize that the district court clearly erred when it found
that (1) the firm had served defendants with the motion for entry of default at their business address and (2) the business address had always been the address on file with the court. The firm’s certificate of service clearly lists the residential addresses, and nothing in the record shows that the court had defendants’ business address on file as the address for service. See Whiting-Turner Contracting Co. v. Guarantee Co. of N. Am. USA, 2019 COA 44, ¶ 36 (“A factual finding is clearly erroneous if nothing in the record supports it.”). However, any error was harmless because the motion for entry of default was not the event that triggered defendants’ deadline to file an answer, see C.R.C.P. 12(a)(1)(A), and defendants were served with the court’s order denying their motion to dismiss at an appropriate “last known address,” C.R.C.P. 5(b)(2)(B). See Walker v. Ford Motor Co., 2017 CO 102, ¶ 21 (“This court will deem an error harmless, and thus will not reverse a judgment, unless the error resulted in substantial prejudice to a party.”).
23 the current version of C.R.C.P. 5(b)(2)(B), service by mailing a copy
to a party’s “last known address” suffices.
¶ 41 Similarly, we reject defendants’ reliance on First National Bank
of Telluride v. Fleisher, in which the Colorado Supreme Court
vacated the trial court’s default judgment because the court’s order
triggering the defaulting party’s obligation to respond was
(apparently undisputedly) mailed to the wrong address and the
party received no notice, in violation of due process. 2 P.3d 706,
709, 712-15 (Colo. 2000). Unlike Fleisher, the district court’s order
was not sent to the “wrong address,” and defendants received
actual notice, as evidenced by their intermittent participation in the
litigation. See In re Estate of Ongaro, 998 P.2d 1097, 1105 (Colo.
2000) (actual notice satisfies due process requirements of notice
and an opportunity to participate).11
11 To the extent defendants attempt to raise a due process
challenge, it is undeveloped, and we decline to address it. See S. Colo. Orthopaedic Clinic Sports Med. & Arthritis Surgeons, P.C. v. Weinstein, 2014 COA 171, ¶ 35; Barnett v. Elite Props. of Am., Inc., 252 P.3d 14, 19 (Colo. App. 2010).
24 b. Mail Delays
¶ 42 Defendants next contend that their delay in filing an answer
was excusable because of delays in the mail. Even assuming that
mail delays are the reason Lancaster did not receive the district
court’s order denying defendants’ motion to dismiss until February
23, 2024, as she claimed, mail delays do not explain why she
waited another thirty-eight days to file a one-line answer.
¶ 43 Recall that the court did not enter default until March 20,
almost a month after Lancaster said she received the order.
Lancaster signed the answer on March 26, and it was accepted for
filing by the court just six days later. Had she signed and mailed
the answer for filing shortly after she received the court’s order, it is
reasonable to presume that the court would have received it long
before entering default. Without further explanation, defendants
have failed to show that delays in the mail were an “unforeseen
circumstance” that would excuse their neglect. Goodman, 222 P.3d
at 319; see also Ford v. Henderson, 691 P.2d 754, 756 (Colo. App.
1984) (affirming a trial court’s conclusion that a party’s reliance
upon the postal service to timely deliver mail does not constitute
excusable neglect).
25 c. Deadline to File
¶ 44 Finally, defendants argue that they believed they had
thirty-five days after receiving the district court’s order to file an
answer because the summonses indicated they had thirty-five days
“to file [an] answer or other response” if they were served outside of
Colorado. But the deadline in the summonses was the deadline for
defendants to file some initial response to the complaint.
Defendants elected to file a motion to dismiss, albeit well beyond
the thirty-five-day deadline. Once the court denied defendants’
motion, they had fourteen days to file an answer. C.R.C.P.
¶ 45 Regardless of whether the court’s order included the answer
deadline, even unrepresented parties are bound by the rules of civil
procedure. Cornelius v. River Ridge Ranch Landowners Ass’n, 202
P.3d 564, 572 (Colo. 2009). And these unrepresented parties were
licensed attorneys in Alaska. Defendants’ failure to follow the rules
does not excuse their untimely answer. See id.; Adams v. Sagee,
2017 COA 133, ¶ 3 n.1 (“[T]he law is clear that mistake or
ignorance of the law doesn’t constitute excusable neglect.” (citing
Goodman, 222 P.3d at 321-22)).
26 ¶ 46 We conclude that the district court did not err by concluding
that defendants did not demonstrate excusable neglect. See
Goodman, 222 P.3d at 319.
2. Meritorious Defense
¶ 47 Defendants next contend that they presented a meritorious
defense because their motion to set aside default and associated
reply incorporated the factual allegations contained in their motion
to dismiss. But the motion and reply belie this contention.
¶ 48 The motion does not incorporate the motion to dismiss or any
of its content. In the section of the motion discussing a meritorious
defense, it merely states “[t]he [d]efendant’s [sic] affidavits are taken
as testimony as to the facts of the case as they know them,” but
defendants did not submit any affidavits with their motion. And
although a party may not raise new arguments for the first time in a
reply, the reply to the motion to set aside default also fails to
incorporate the motion to dismiss. All it says is that “[a] threshold
issue the court will need to address in a separate pleading is
whether there is a source for remedy, such as a contract (which to
date has not been presented by [the firm]).” Merely flagging for the
court that it must determine whether a contract exists to resolve a
27 breach of contract claim does not reflect any theory of defense.
Defendants failed entirely to alleged a meritorious defense. See id.
3. Equitable Considerations
¶ 49 Lastly, defendants argue that equitable considerations should
have resulted in the district court setting aside the entry of default.
Defendants point out that they promptly filed the motion to set
aside default, and the firm suffered no prejudice beyond having to
prove its case. We are not persuaded.
¶ 50 The court found that Lancaster’s “relative promptness” in filing
the motion to set aside default “would weigh heavily in her favor
and could, by itself, be decisive,” “under most circumstances.” But
two facts “weighed against that” here: (1) Lancaster is an attorney
who should understand the applicable rules and deadlines, and
(2) she “casually and contemptuously ignored all deadlines and
rules and failed even to begin to engage with the merits of the case.”
True, the court did not analyze the prejudice, or lack thereof, to the
firm. But because failure to satisfy even one factor may justify
denying a request to set aside the entry of default, and because
defendants wholly failed to show excusable neglect or allege a
28 meritorious defense, we perceive no error in how the court weighed
the equities. See id. at 320.
¶ 51 We conclude that the district court did not abuse its discretion
by determining that defendants failed to demonstrate good cause to
set aside the entry of default. See Ferraro, ¶ 10.
D. Sanction
¶ 52 Defendants also contend that the district court erroneously
entered default against them as a sanction. We reject this
argument. It is apparent from the court’s order denying defendants’
motion to set aside default that it did not enter default as a
sanction but because defendants failed to timely file an answer.
And it refused to set aside the default because defendants failed to
demonstrate good cause.
E. Relief as to Jensen
¶ 53 Defendants contend that the district court erred by
considering the motion to set aside default as not having been filed
by Jensen because he did not sign it. As an unrepresented party,
Jensen was required to sign any pleading he filed with the court.
C.R.C.P. 11(a). He did not sign the answer or the motion to set
aside default purportedly filed on his behalf. Thus, we perceive no
29 error in the court’s analysis. But even assuming the court should
have considered the reply Jensen signed as his affirmative motion
to set aside default, any error was necessarily harmless because we
have concluded that the court did not abuse its discretion by
denying the motion (and reply) on the merits. See Walker v. Ford
Motor Co., 2017 CO 102, ¶ 21.
F. Servicemembers Civil Relief Act
¶ 54 Lancaster contends that the district court erred by
“disregarding” her argument that § 3931 of the SCRA applied and
by failing to investigate her military status further when she
claimed to be protected by the SCRA. But the court did not
disregard her argument; it concluded that the SCRA did not apply.
We affirm that conclusion, albeit on different grounds. See Laleh v.
Johnson, 2017 CO 93, ¶ 24 (an appellate court can affirm a trial
court’s order on any ground supported by the record, whether relied
upon or even considered by the trial court).
¶ 55 First, § 3931 of the SCRA, titled “Protection of servicemembers
against default judgments,” applies in any civil case when a
defendant has failed to make an appearance. 50 U.S.C. § 3931(a).
Lancaster did not fail to appear — she filed a motion to dismiss.
30 See Rouse v. Moore, 724 F. Supp. 3d 410, 421 (D. Md. 2024)
(explaining that § 3931 obligates courts to ensure servicemembers
are protected when they have not appeared); Martin v. Indianapolis
Morris Plan Corp., 400 N.E.2d 1173, 1176 (Ind. Ct. App. 1980)
(when defendant appeared by filing a motion for preferred venue,
the SCRA’s requirement for an affidavit showing the defendant was
not in the military service did not apply).
¶ 56 Second, the affidavit requirement Lancaster contends was not
satisfied applies to protect military personnel against default
judgment, not entry of default. See Interinsurance Exch. v. Collins,
37 Cal. Rptr. 2d 126, 127 (Ct. App. 1994) (“Congress sought to
protect military personnel not from defaults, but from default
judgments.”). Indeed, the plain language of the statute confirms as
much when it provides that, “before entering judgment for the
plaintiff,” the court shall require the plaintiff to file an affidavit
stating (1) whether or not the defendant is in the military and
showing the necessary facts to support the affidavit or (2) that the
plaintiff cannot determine whether the defendant is in military
service. 50 U.S.C. § 3931(b)(1) (emphasis added). The firm’s
31 alleged failure to file an SCRA-compliant affidavit provides no
grounds for setting aside the entry of default.
¶ 57 Even so, the firm complied with the affidavit requirement when
moving for default judgment. It submitted a declaration from Kuhn
stating that Jensen was not in the military and that Lancaster had
not actively served in the military in the last 367 days. The
declaration attached a report from the Department of Defense
reflecting Lancaster’s status. The affidavit requirement is “satisfied
by a statement, declaration, verification, or certificate, in writing,
subscribed and certified or declared to be true under penalty of
perjury.” 50 U.S.C. § 3931(b)(4); see Mulligan Funding LLC v.
Tommy Interior Contracting Corp., 765 F. Supp. 3d 201, 214
(E.D.N.Y. 2025) (plaintiff complied with the SCRA by filing a report
indicating the defendant was not on active duty at the time of
default); cf. Sprinkle v. SB&C Ltd., 472 F. Supp. 2d. 1235, 1245-47
(W.D. Wash. 2006) (concluding that debt collectors violated the
SCRA by failing to file the requisite affidavit when the debtor was on
active military duty). The district court correctly concluded that the
SCRA provides Lancaster no relief from the entry of default.
32 IV. Motion to Testify Remotely
¶ 58 Defendants next contend that the district court erred by
denying their motion to testify remotely at the damages hearing
based on a “strict application” of the Colorado Rules of Civil
Procedure.12 We are not persuaded.
¶ 59 Under C.R.C.P. 43(i)(1), a party may request permission to
present testimony remotely. Such a request must be made by
written motion “as soon as practicable after the need for absentee
testimony becomes known,” and it must include, as relevant here,
“[t]he reason(s) for allowing such testimony” and “[a] detailed
description of all testimony which is proposed to be taken.”
C.R.C.P. 43(i)(1)(A)-(B). The court shall determine whether remote
testimony may be allowed “in the interest of justice” after
considering several nonexhaustive factors, including whether there
is a statutory right to absentee testimony. We review a trial court’s
decision whether to allow remote testimony for an abuse of
discretion. People in Interest of M.W., 2022 COA 72, ¶ 12.
12 To the extent defendants argue that the district court erred by
denying their motion to continue the hearing and to disqualify the judge, they do not develop those arguments, so we decline to address them. See Weinstein, ¶ 35; Barnett, 252 P.3d at 19.
33 ¶ 60 The district court denied defendants’ motion to testify remotely
“for failure to comply with the requirements of C.R.C.P. 43(i),”
including the requirements to file as soon as practicable and to
provide a detailed description of the proposed testimony.
Defendants make no attempt to justify their noncompliance with
the rule’s filing requirements. Instead, although they acknowledge
that the court generally has discretion to permit or deny remote
testimony under C.R.C.P. 43, they argue that the court’s discretion
was displaced by C.R.C.P. 55, which they say requires the court to
conduct a hearing at which the defaulting party may
“cross-examine witnesses and present mitigating evidence.”13
¶ 61 It is true that a court’s discretion to determine whether the
interests of justice require the acceptance of absentee testimony
under C.R.C.P. 43(i) may be displaced by a statutory mandate to
allow such testimony. See, e.g., People in Interest of S.C., 2020 COA
13 Notably, the district court did not deny defendants the ability to
participate remotely, it simply denied them the opportunity to testify remotely. Lancaster participated remotely, including by cross-examining the firm’s witness, presenting exhibits, and making a closing argument. Jensen was present remotely for a portion of the hearing but did not participate, so the court did not allow him to make a closing argument.
34 95, ¶¶ 17-18 (trial court’s discretion under C.R.C.P. 43 was
displaced by section 14-5-316(a), (f), C.R.S. 2025, which requires a
court to permit a party residing out of state to testify remotely in a
proceeding under the Uniform Interstate Family Support Act). But
C.R.C.P. 55 is not a statute, and it does not require a court to
permit remote testimony; it provides only that “[i]f the party against
whom judgment by default is sought has appeared in the action,
the party . . . shall be served with written notice of the application
for judgment at least [seven] days prior to the hearing on such
application.” C.R.C.P. 55(b)(1). The court gave defendants notice
and an opportunity to meaningfully participate in the hearing. Cf.
Kwik Way Stores, Inc. v. Caldwell, 745 P.2d 672, 679 (Colo. 1987)
(when the trial court refused to allow defendants the opportunity to
object, present evidence, or cross-examine witnesses, it denied
defendants an opportunity to meaningfully participate).
¶ 62 Thus, we reject defendants’ claim that C.R.C.P. 55 deprived
the court of discretion to deny their request for remote testimony.
And because defendants fail to address the reason the court denied
their request — failure to comply with C.R.C.P. 43(i) — we
necessarily affirm the court’s order. See IBC Denver II, LLC v. City
35 of Wheat Ridge, 183 P.3d 714, 717-18 (Colo. App. 2008) (an
appellant’s failure to challenge all bases for the lower court’s
decision requires affirmance).
V. Damages
¶ 63 Finally, defendants contend that the district court erred by
awarding the firm “all claimed damages,” including treble damages,
because (1) the evidence did not support the claimed damages; and
(2) the firm’s complaint failed to set forth a sufficient basis for its
claims of civil theft, COCCA violation, or civil conspiracy. We are
not persuaded.
A. Standard of Review and Generally Applicable Law
¶ 64 We review a trial court’s assessment of damages for clear
error. Blakeland Drive Invs., LLP IV v. Taghavi, 2023 COA 30M,
¶ 38. The trial court has broad discretion to determine the amount
of damages to award. McDonald’s Corp. v. Brentwood Ctr., Ltd., 942
P.2d 1308, 1311 (Colo. App. 1997). We will not disturb an award of
damages unless it is completely without record support. Hauser v.
Rose Health Care Sys., 857 P.2d 524, 531 (Colo. App. 1993).
¶ 65 An entry of default establishes liability, but it does not
establish damages. Dickinson v. Lincoln Bldg. Corp., 2015 COA
36 170M, ¶¶ 22-23. If information is needed to determine damages
beyond the complaint’s allegations — which are deemed admitted —
the court should hold a hearing. C.R.C.P. 55(b)(1); Kwik Way
Stores, 745 P.2d at 679. But “[a] damages hearing is only held to
determine the amount of damages owed, and any discussion of the
liability underlying that award is prohibited.” Dickinson, ¶ 28.
B. Additional Background
¶ 66 The firm requested $126,570.49 in damages as follows:
a. KeyBank Theft: $10,628.36
b. Office Pre-Paid Rent/Deposit: $25,478.70
c. Possession/Retention of Artwork: $2,400
d. Possession/Retention of Copy Machine: $22,283.12
e. Possession/Retention of Equipment/ Appliances/Supplies/Insurance: $22,858.43
f. (Estimated) Diverted Municipality of Anchorage Revenue: $18,360
g. (Estimated) Diverted Receivables: $24,561.88.
The firm also requested treble damages based on its civil theft and
COCCA claims and prejudgment interest.
37 ¶ 67 At the damages hearing, Kuhn testified, and the court
admitted email exchanges between Kuhn and defendants regarding
the $10,000 cash withdrawal from the KeyBank account. In the
emails, defendants did not deny taking the money; they argued they
were entitled to it. The firm also admitted the KeyBank withdrawal
receipt for the $10,000, the office lease agreement and a copy of a
check reflecting payment of the security deposit, a KeyBank
withdrawal receipt for money Lancaster used to buy art for the
office, and receipts for unauthorized personal purchases by
Lancaster on the firm’s credit card. The firm also admitted an
itemized breakdown of the requested damages.
¶ 68 Lancaster arrived at the hearing late but cross-examined Kuhn
regarding the claimed damages and the admitted exhibits. During
closing, Lancaster argued that Kuhn “couldn’t answer . . . what was
done by [the firm] to open a firm in Alaska and then claim all these
damages.” She continued, “[O]utside of the [c]omplaint, [Kuhn]
basically repeated that he doesn’t have clear documents. He
doesn’t have clear invoicing. He doesn’t know what happened. He
doesn’t know what’s spent. He doesn’t know who signed things. He
38 doesn’t know what checks went out.” Lancaster also argued that
treble damages are “punitive” and should be determined by a jury.
¶ 69 The district court first ruled that the allegations in the
complaint were deemed admitted because default had entered
against the defendants. The court then determined that the firm’s
complaint, Kuhn’s testimony, and the exhibits established that
defendants “knowingly and intentionally took control over monies
and things of value of the firm without authorization and then
retained control over those and refused to return or reimburse
despite requests to do so.” The court concluded that the firm’s
requested damages were supported by the evidence. And the court
awarded treble damages based on the civil theft and COCCA claims.
C. The Record Supports the Damages Award
¶ 70 Although defendants contend that the district court erred by
granting the firm all claimed damages “despite evidence within the
record that [the firm] was not damaged as claimed,” they point us to
no such evidence. It is the defendants’ burden to direct us to the
relevant evidence in the record. See Brighton Sch. Dist. 27J v.
Transamerica Premier Ins. Co., 923 P.2d 328, 335 (Colo. App. 1996)
(“[I]t is not the duty of the reviewing court to search the record for
39 evidence to support bald assertions.”), aff’d, 940 P.2d 348 (Colo.
1997). And even if the evidence was conflicting, we will not reweigh
it. Lawry v. Palm, 192 P.3d 550, 558 (Colo. App. 2008) (“When the
evidence is conflicting, a reviewing court may not substitute its
conclusions for those of the trial court merely because there may be
credible evidence supporting a different result.”). Because the
record supports the court’s damages award, we will not disturb it.
See Blakeland Drive Invs., ¶ 38; Hauser, 857 P.2d at 531.
¶ 71 As to the argument that the allegations in the firm’s complaint
were not well pleaded and thus were insufficient to establish
defendants’ liability on the civil theft, COCCA, and civil conspiracy
claims, see Ferraro, ¶¶ 16-17 (a defendant does not admit facts that
are not well pleaded or admit conclusions of law because baseless
claims should not proceed to final judgment), we conclude that
defendants failed to preserve this contention. The only argument
Lancaster made at the hearing with regard to treble damages was
that an award of such damages was punitive and should be
determined by a jury. Defendants’ argument on appeal is different,
so we decline to address it. See Gebert v. Sears, Roebuck & Co.,
2023 COA 107, ¶ 25 (“In civil cases, arguments never presented to,
40 considered by, or ruled upon by a district court may not be raised
for the first time on appeal.”).
VI. The Firm’s Request for Appellate Attorney Fees
¶ 72 The firm requests an award of appellate attorney fees on the
basis that the district court awarded it fees for prevailing on the
civil theft and COCCA claims. Because the firm failed to cite any
authority entitling it to the requested fees, we decline to award
them. See C.A.R. 39.1 (“If attorney fees are recoverable for the
appeal, the principal brief of the party claiming attorney fees must
include a specific request, under a separate heading, and must
explain the legal and factual basis for an award of attorney fees.”).
VII. Disposition
¶ 73 We affirm the judgment.
JUDGE FOX and JUDGE MEIRINK concur.