Rainsberger v. Klein

5 P.3d 351, 2000 Colo. J. C.A.R. 6582, 1999 Colo. App. LEXIS 310, 1999 WL 1128671

• Court: Colorado Court of Appeals
• Decided: December 9, 1999
• Docket: 98CA2029
• Status: Published

Opinions

Opinion by

Judge KAPELKE.

Defendant, J. Klein, appeals from the trial court's order denying his C.R.C.P. 60(b)(8) motion challenging a default judgment entered against him in favor of plaintiff, Charles J. Rainsberger. We reverse the post-judgment order, vacate the default judgment, and remand for further proceedings.

The record reveals the following facts. This action was commenced in March 1995, when plaintiff filed a complaint asserting a negligence claim against a defendant designated in the caption as "J. Klein Construetion," which was further described in the body of the complaint as "a business entity." The summons and complaint were personally served on "Jay Klein" on May 8, 1995.

In September 1995, the trial court granted plaintiff's motion to amend the caption of the complaint to designate the name of the defendant as "J. Klein, d/b/a J. Klein Construction." No notice of either the motion or the order was given to the newly-designated individual defendant, and there was no further service of process on him.

No answer has been filed, and defendant did not appear or otherwise defend in the trial court prior to entry of judgment. On plaintiff's motion, a default judgment was eventually entered against defendant "J. Klein, d/b/a J. Klein Construction" on January 12, 1996.

Defendant's first appearance in the trial court was by the filing of his answers to C.R.C.P. 69 interrogatories, in which he denied using "any business or trade names." Later, on June 12, 1998, defendant filed a motion pursuant to C.R.C.P. 60(b)(8) to set aside the default judgment.

The trial court denied the motion, ruling -that the judgment against defendant was not void. In so ruling, the trial court found that defendant was "well aware of the suit against him individually" when he was served with the summons and complaint, and was made aware that the judgment was against him individually when he received and answered the interrogatories.

Defendant contends that the judgment is void because he was not properly served with process as to any claims against him individually and the trial court thus lacked personal jurisdiction over him at the time the judgment was entered. We agree.

C.R.CP. 60(b)(8) provides for relief from a final judgment if the judgment being challenged is "void." See Mason-Jares, Ltd. v. Peterson, 939 P.2d 522 (Colo.App.1997). Further, a default judgment entered when the trial court lacks personal jurisdiction over a defendant because of invalid service of process is void and must be vacated upon request. See Weaver Construction Co. v. District Court, 190 Colo. 227, 545 P.2d 1042 (1976); United Bank v. Buchanan, 836 P.2d 473 (Colo.App.1992)

Here, in granting plaintiffs motion to "amend the caption," the trial court essentially allowed plaintiff to add "J. Klein" as an individual party defendant. However, notice of this change was not given to defendant prior to the entry of judgment against him individually. We also agree with defendant that the original service of process on him was ineffective as to any claims purporting to be against him as an individual defendant.

Contrary to plaintiff's argument, defendant's knowledge of any claims asserted against the allegedly related business entity is irrelevant, and the inquiry must focus on the summons and complaint actually served, rather than on the relationship between the parties. The purpose of a pleading and the requirement for service of process are to give the adverse party notice of the commencement of the action and the claims against it so as to provide it with the opportunity to appear and defend. See Bush v. Winker, 907 P.2d 79 (Colo.1995).

The summons and complaint actually served here did not name "J. Klein" as an individual party defendant, nor was there any indication given that his receipt of service of process on behalf of "J. Klein Construction" also somehow constituted service of process concerning any claims against "J. Klein" individually. Thus, we conclude that the original complaint and the original service of process were insufficient to put defendant on notice of any claims against him individually as a party defendant. See Bush v. Winker, supra.

Because defendant was not served with process after the "caption change," we further conclude that the default judgment against him individually is void for lack of personal jurisdiction over him. See Weaver Construction Co. v. District Court, supra; United Bank v. Buchanan, supra; see also Roberts v. Novinger, 815 P.2d 996 (Colo.App.1991) (no valid default judgment entered on amended complaint where defendants were neither notified of authorization for amendment nor served with amended complaint).

Courts in other jurisdictions have held that an individual sued only under his or her trade name has nevertheless received sufficient notice to support the court's acquisition of personal jurisdiction. See, e.g., Hughes v. Cox, 601 So.2d 465 (Ala.1992). In that case, the court concluded that: "[olne doing business in a trade name has fair notice that a complaint alleging a cause of action arising out of his business may lead to personal liability." Hughes v. Cox, supra, 601 So.2d at 471.

Here, however, the pleadings served on defendant prior to entry of the default judgment did not allege that he was being sued in an individual capacity. The summons and complaint named as the sole defendant "J. Klein Construction," which the complaint identifies as a "business entity." Significantly, the record does not demonstrate that defendant had in fact conducted business under the trade name "J. Klein Construction." Under these cireumstances, we view the Hughes case and similar decisions involving parties conducting business under trade names as distinguishable from the situation presented here.

Next, we reject plaintiff's argument that defendant's post-judgment court appearances served to validate the void default judgment by curing any deficiency in the trial court's personal jurisdiction over him. Although defendant has now made an appearance in this action and is subject to the jurisdiction of the court from the date he did so, his post-judgment appearance is not retroactive and does not serve to validate the void judgment. See Weaver Construction Co. v. District Court, supra.

We also reject plaintiff's argument that defendant's CRCP. 60(b)@8) motion was untimely. To the contrary, a void judgment may be challenged at any time pursuant to C.R.C.P. 60(b)(8), and must be vacated upon request. See United Bank v. Buchanan, supra.

We decline to address plaintiff's contentions regarding defendant's alleged bank-ruptey filing, because we find no basis in the record to consider such matters. See Westrac, Inc. v. Walker Field, 812 P.2d 714 (Colo.App.1991) (statements in a party's brief cannot supply that which must be contained in the record).

In light of our disposition of the issues, we need not address the remaining contentions of the parties concerning the validity of the default judgment, and we necessarily reject plaintiff's contention that this appeal is frivolous and groundless.

Accordingly, the order denying defendant's C.R.C.P. 60(b)(8) motion is reversed, the default judgment is vacated, and the cause is remanded to the trial court with directions to allow defendant to file an answer to the complaint and for further proceedings.

Judge RULAND concurs. Judge BRIGGS dissents.