The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY January 24, 2019
2019COA12
No. 17CA2254, Tallman v. Aune — Civil Procedure — Relief From Judgment or Order — Judgment is Void; Creditors and Debtors — Judgments — Presumption of Regularity; Courts and Court Procedure — Lost or Destroyed Records
A division of the court of appeals considers whether the
district court erred in vacating a default judgment under C.R.C.P.
60(b)(3) for lack of personal service, where the judgment was twenty
years old, the district court’s case file had been destroyed, and the
return of service was not available. The division concludes that the
presumption of regularity applied to the default judgment and the
defendant had the burden to overcome the presumption that the
default judgment was entered with jurisdiction. The district court,
therefore, erred in placing the burden on the plaintiff to prove valid
service. The division further concludes that the defendant did not
present any affirmative evidence to overcome the presumption of
regularity or to show by clear and convincing evidence that the
default judgment was void. Accordingly, the division reverses the
district court’s order vacating the default judgment and remands
the case to the district court to reinstate the default judgment.
The division also concludes that the plaintiff’s request to revive
the default judgment is not moot. On remand, the district court
shall consider the request to revive the default judgment. COLORADO COURT OF APPEALS 2019COA12
Court of Appeals No. 17CA2254 Jefferson County District Court No. 96CV1028 Honorable Randall C. Arp, Judge
Michael Eugene Tallman,
Plaintiff-Appellant,
v.
Richard Aune,
Defendant-Appellee.
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Division VI Opinion by JUDGE DUNN Martinez* and Márquez*, JJ., concur
Announced January 24, 2019
Miller Steiert, P.C., Christopher J. Forrest, Stephen J. Woolsey, Littleton, Colorado, for Plaintiff-Appellant
The Law Office of Ahson Wali LLC, Ahson B. Wali, Greenwood Village, Colorado, for Defendant-Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2018. ¶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.
I. Background
A. The Court Record
¶3 This case comes to us under unusual circumstances. Though
asked to consider whether the district court erred in vacating Mr.
1 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
2 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.
B. The 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)”;1
1The referenced exhibits were not attached to the copy of the default motion that Mr. Tallman retained and the court entered as part of the recreated record.
3 more than thirty days had passed since “personal
service”; and
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 16, 1996.”
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.”
4 Mr. Tallman was entitled to judgment in the amount of
$91,574.45.
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 entered in
the register of actions on that date.
C. Garnishment and Motion to Vacate
¶ 11 Beyond a 2011 notation that the case file was “[d]estroyed,”
the register of actions reflected no activity until 2016 when Mr.
Tallman filed writs of garnishment, seeking to enforce the 1996
default judgment. The writs issued, and Mr. Tallman served them
on several banks.
¶ 12 Shortly after, Mr. Aune filed what he captioned a “verified
motion to vacate default judgment and quash writ of garnishment”
(motion to vacate). In this motion, Mr. Aune asserted that (1) he
was not previously “aware that he had been sued or that a
judgment had been entered against him”; (2) Mr. Tallman “could not
provide a copy of the [a]ffidavit of [s]ervice”; and (3) he “would have
defended this matter had he been properly served.” Mr. Aune then
5 asserted, in conclusion, that he “was never served in this case” and
“a default judgment obtained without service of process” is void. He
therefore asked the district court “to vacate the [1996 default
judgment] and quash all writs of garnishment.”
¶ 13 In response, Mr. Tallman admitted that he could not produce
the affidavit of service but argued that he properly served Mr. Aune
and complied with the rules for entry of default judgment. As
evidence that he did, Mr. Tallman attached the default motion, the
1996 default judgment, and email exchanges with the court
regarding the destruction of the case file. He also pointed to the
register of actions entry, noting “SVC on 7-16-96.” And Mr.
Tallman argued that Mr. Aune “failed to present any proof that he
was not served or that the judgment [was] void” and had not
satisfied his burden to establish by clear and convincing evidence
that the 1996 default judgment should be vacated.
¶ 14 Mr. Tallman later filed an affidavit from the attorney who
obtained the 1996 default judgment. That affidavit stated that “he
was the attorney of record in this matter in 1996” and that he
“understand[s] and [was] informed that service on [Mr. Aune] in this
case was effectuated in Hawaii.” Counsel also stated he
6 “specifically recall[ed] looking into the issue of service of process in
Hawaii” and he only handled one case that required service there.
¶ 15 The district court granted Mr. Aune’s motion to vacate. In
doing so, it found that Mr. Tallman “failed to produce” the affidavit
of service and, without the affidavit of service, nothing showed “the
essential facts to demonstrate adequacy of service.” Accordingly,
the court concluded that Mr. Aune had “met [his] burden.” It then
shifted the burden to Mr. Tallman and concluded that he had not
established that Mr. Aune was properly served.
D. The Motion to Reconsider
¶ 16 Mr. Tallman moved the court to reconsider, arguing that the
presumption of regularity must apply. He specifically contended
that the court must presume that the 1996 default judgment was
properly entered and that Mr. Aune was properly served — a
requirement for entry of a default judgment. He further argued that
Mr. Aune’s unsworn statements did “not affirmatively show that
service did not occur, nor [did they] overcome the presumption of
regularity.”
¶ 17 The district court rejected the argument, noting that Mr.
Tallman “cited no authority indicating that the presumption ha[d]
7 been applied to a [district] court’s review of its own record in
Colorado.” The court added that even if the presumption of
regularity does apply to a district court, it is “not the standard by
which to judge [Mr. Aune’s motion to vacate].”
¶ 18 The district court later dismissed the case.
II. Vacating the 1996 Default Judgment
¶ 19 Mr. Tallman contends that the district court erred in vacating
the 1996 default judgment. More to the point, he argues that the
district court should have applied the presumption of regularity to
presume the 1996 default judgment was entered with jurisdiction.
A. Standard of Review
¶ 20 We review de novo a district court’s order granting relief from a
default judgment under C.R.C.P. 60(b)(3). Goodman Assocs., LLC v.
WP Mountain Props., LLC, 222 P.3d 310, 314 (Colo. 2010).
¶ 21 Mr. Aune, however, argues that because Mr. Tallman didn’t
raise the presumption of regularity until the motion for
reconsideration, we should review only for an abuse of discretion.2
See Hytken v. Wake, 68 P.3d 508, 512 (Colo. App. 2002). While Mr.
2 Mr. Aune raises no preservation challenge.
8 Aune is correct on the timing, the district court considered the
argument and concluded the presumption of regularity didn’t apply.
And whether the district court applied the correct legal standard is
a question of law that we review de novo. Wal-Mart Stores, Inc. v.
Crossgrove, 2012 CO 31, ¶ 7. In any event, a district court abuses
its discretion if it applies the wrong legal standard. Id.
B. Requirements for Default Judgment
¶ 22 When a defendant fails to defend against a civil lawsuit, the
plaintiff may request “a judgment by default.” C.R.C.P. 55(b).3 To
obtain one, the plaintiff must provide the court with the following:
“[t]he original summons showing valid service on the
particular defendant in accordance with [C.R.C.P.] 4”;
an affidavit stating the facts necessary to show proper
venue;
an affidavit establishing that the defendant is not an
infant, an incompetent person, an officer or agency of
Colorado, or in the military service; and
3The requirements for entry of default judgment have not materially changed since 1996.
9 an affidavit or exhibit establishing the amount of
damages.
C.R.C.P. 121, § 1-14(1); see also Crow-Watson No. 8 v. Miranda, 736
P.2d 1260, 1261 (Colo. App. 1986) (“C.R.C.P. 121 § 1–14 . . .
specifies what documents, affidavits, and other information must be
provided to the court before default judgment is entered.”).
¶ 23 What remains of the record confirms that Judge Barnhill
found that Mr. Tallman complied with these procedural
requirements.
C. C.R.C.P. 60(b)(3)
¶ 24 To set aside a default judgment, the defendant “bears the
burden of establishing by clear and convincing evidence that the
motion should be granted.” Goodman, 222 P.3d at 315; see also
Borer v. Lewis, 91 P.3d 375, 380-81 (Colo. 2004) (same). And while
a default judgment entered without jurisdiction is void, the “burden
of proof remains upon the defendant to establish lack of personal
jurisdiction resulting in a void judgment under C.R.C.P. 60(b)(3).”
Goodman, 222 P.3d at 315. But Goodman recognizes an exception
to this general rule in those cases where “the return of service
insufficiently recites the essential facts to demonstrate adequacy of
10 service.” Id. In such a case, Goodman instructs that the burden
“may” shift back to the plaintiff. Id.
D. The Goodman Exception
¶ 25 Mr. Tallman contends that the district erred in concluding
that his inability to produce the return of service, along with Mr.
Aune’s claim that he was “never served,” shifted the burden to Mr.
Tallman to prove service under the Goodman exception. Under the
circumstances here, we agree.
¶ 26 The district court specifically concluded that “[b]ecause the
affidavit [of service] does not exist, it cannot state ‘the essential
facts to demonstrate adequacy of service,’” and thus it shifted the
burden to Mr. Tallman to prove service. Goodman, however, didn’t
address a situation where the default judgment and register of
actions showed the defendant was served but the court file was
destroyed, leaving no return of service to review. Rather, the
Goodman exception says only that a court may shift the burden
back to the plaintiff when a “return of service” insufficiently recites
facts demonstrating adequate service. Id. This exception, therefore,
presupposes the return is available in the record and the dispute is
over the sufficiency of the return’s contents. See id. at 316
11 (declining to consider whether the burden shifted to the plaintiff
where the service affidavit was in the record and the record
demonstrated adequate service); cf. In re Marriage of Thacker, 701
P.2d 871, 872 (Colo. App. 1985) (setting aside marriage dissolution
decree where the record showed that the return of service named a
person other than defendant). Such an exception is not surprising
given that a “[r]eturn of service is prima facie evidence of the facts
recited.” Stegall v. Stegall, 756 P.2d 384, 385 (Colo. App. 1987).
¶ 27 The return of service recitals’ sufficiency — or the lack thereof
— is not the dispute here. Because the return of service is not
available, Mr. Aune can’t point to any insufficient factual recital in
the return. For the same reason, we can’t consider the sufficiency
of the return’s factual recitals. We therefore don’t agree that
Goodman’s burden-shifting exception applies here.
¶ 28 Instead, when the register of actions, the limited record, and
the 1996 default judgment show service was effectuated, but the
return of service is no longer available, the presumption of
regularity applies.
12 E. Presumption of Regularity
¶ 29 The presumption of regularity generally presumes that a
judgment is valid and was properly entered. See LePage v. People,
2014 CO 13, ¶ 15; see also Cook v. Cook, 342 U.S. 126, 128 (1951)
(recognizing that the court presumes a sister state’s judgment was
entered with “jurisdiction over the subject matter and over the
persons”). This presumption is “deeply rooted in our
jurisprudence.” Parke v. Raley, 506 U.S. 20, 29 (1992). And
Colorado has long recognized it. See Haskell v. Gross, 145 Colo.
365, 367, 358 P.2d 1024, 1026 (1961); Kavanagh v. Hamilton, 53
Colo. 157, 165, 125 P. 512, 516 (1912).
¶ 30 Indeed, “[t]here is no principle of law better settled, than that
every act of a court of competent jurisdiction shall be presumed to
have been rightly done, till the contrary appears[.]” Voorhees v.
Jackson, 35 U.S. 449, 472 (1836); see also Haskell, 145 Colo. at
367, 358 P.2d at 1026. “[T]his rule applies . . . to every judgment or
decree, rendered in the various stages of their proceedings from the
initiation to their completion[.]” Voorhees, 35 U.S. at 472; see
Guthner v. Union Fin. & Loan Co., 110 Colo. 449, 452-53, 135 P.2d
13 237, 239 (1943) (presuming the validity of the trial court’s findings
made in support of its order).
¶ 31 Mr. Aune argues the presumption of regularity doesn’t apply
because he “never claimed” Judge Barnhill “committed error.”
Instead, he “merely” alleged that Mr. Tallman “did not properly
serve” him.
¶ 32 We are unconvinced for two reasons. First, while true Mr.
Aune challenged service of process, the necessary corollary to that
argument is that Judge Barnhill erred in finding that (1) “service
was effectuated on” Mr. Aune and (2) Mr. Tallman “complied with all
applicable rules” to obtain the 1996 default judgment (one of which
required him to provide the original summons showing “valid
service” “in accordance” with the service rules). C.R.C.P. 121,
§ 1-14(1)(a). Thus, a motion to vacate a default judgment based on
lack of service of process is, by extension, a contention that the
district court erred in entering default judgment based on a finding
of valid service.
¶ 33 But, even if we agree that Mr. Aune “never claimed” Judge
Barnhill “committed error,” the result is no different. If true, then
Mr. Aune concedes that Judge Barnhill correctly found that “service
14 was effectuated on” Mr. Aune and that Mr. Tallman “complied with
all applicable rules” to obtain the 1996 default judgment. And if
correct, these findings again refute Mr. Aune’s claim that he was
not served.
¶ 34 Second, our supreme court applied the presumption of
regularity to a somewhat similar contention in Haskell. There, the
defendant failed to answer the plaintiff’s complaint after initially
appearing in the case. Haskell, 145 Colo. at 366, 358 P.2d at 1025.
As a result, the court entered default judgment. Id. The defendant
then moved to vacate the default judgment, arguing that he had not
been served with the required notice before the court entered the
default judgment. Id.; see also C.R.C.P. 55(b) (requiring the
application for a default judgment to be served on a defendant who
has appeared in the action). Because neither the record nor
evidence before the district court showed whether the notice had
been served, the district court vacated the default judgment.
Haskell, 145 Colo. at 366-67, 358 P.2d at 1025.
¶ 35 Our supreme court reversed, reinstating the default judgment.
Id. at 367-68, 358 P.2d at 1026. The court explained that “[i]t was
incumbent upon the [district] court to give effect to the presumption
15 that the legal prerequisites to the entry of a valid judgment had
been duly observed.” Id. at 367, 358 P.2d at 1026. It went on to
explain that “[i]t has always been the law in this state that in the
absence of anything in the record to the contrary, the [reviewing]
court will presume that the facts necessary to warrant the judgment
were proved or admitted.” Id. (citation omitted). The supreme court
therefore concluded that the default judgment was entitled to a
presumption of regularity. Id. at 367-68, 358 P.2d at 1026.
¶ 36 To the extent Mr. Aune argues that the presumption of
regularity may be applied only by appellate courts and not the
district court, we are not persuaded that the presumption is so
limited. After all, Haskell itself suggested that the district court
erred in not applying the presumption to its own default judgment.
Id.; see also United States v. Manos, 56 F.R.D. 655, 661 (S.D. Ohio
1972) (federal district court recognized that a default judgment
entered in that court was “presumptively valid” when considering a
motion to vacate the default judgment).
¶ 37 Nor do we agree with Mr. Aune’s suggestion that the
destruction of the case file doesn’t matter. Indeed, given its premise
that a court observes the legal requirements necessary to enter a
16 valid judgment, the presumption of regularity is particularly apt
where, as here, the court file is silent or has been lost or destroyed.
See LePage, ¶ 15; see also Haskell, 145 Colo. at 367-68, 358 P.2d
at 1025-26 (applying the presumption of regularity where the
“record [was] silent” as to whether a hearing notice was filed before
entry of a judgment).
¶ 38 The Ninth Circuit Court of Appeals took this approach in
Securities & Exchange Commission v. Worthen, 98 F.3d 480 (9th Cir.
1996). In that case, the district court entered default judgment
after the defendant failed to respond to the complaint. Id. at 481.
The court’s file was later lost, and “only the docket sheet
documenting [the court] filings and orders [was] . . . available.” Id.
¶ 39 The defendant moved to vacate the default judgment under
Fed. R. Civ. P. 60(b), arguing, in part, that the judgment was void
for lack of service. Id. at 481, 483. The district court denied the
motion, and the Ninth Circuit affirmed. Id. In rejecting the
defendant’s argument, the Ninth Circuit applied the presumption of
regularity to the default judgment. Id. at 483-84. It concluded that
although the return of service in the court file had been lost, the
docket sheet showed that the return of service had been filed in the
17 district court and this, together with the presumption of regularity,
showed the judgment was not void. Id.; see also Choctaw &
Chickasaw Nations v. City of Atoka, 207 F.2d 763, 766 (10th Cir.
1953) (noting that where a party challenged a judgment for lack of
jurisdiction and a fire had destroyed the court’s records, “a
presumption arises in favor of the validity of the judgment and the
existence of all matters going to the power of the court to render the
judgment”).
¶ 40 Given all this, we disagree with Mr. Aune that the presumption
of regularity doesn’t apply to the 1996 default judgment. We,
instead, conclude that it was “incumbent upon the [district] court to
give effect to the presumption that the legal prerequisites to the
entry of a valid judgment had been duly observed.” Haskell, 145
Colo. at 367, 358 P.2d at 1026; see also Worthen, 98 F.3d at
483-84; Hoag v. Jeffers, 159 N.E. 753, 754 (Ind. 1928) (“A judgment
by default, regular upon its face, is presumed to be clothed with the
presumption that it was properly entered, when the record does not
show anything inconsistent with such presumption.”).
¶ 41 And integral to that presumption is that Mr. Tallman properly
served Mr. Aune and the court had jurisdiction to enter the 1996
18 default judgment. Hansen v. Pingenot, 739 P.2d 911, 913 (Colo.
App. 1987) (“The mere existence of a default judgment . . . raises a
presumption of valid jurisdiction.”); see Seaboard Nat’l Bank v.
Ackerman, 116 P. 91, 93 (Cal. Dist. Ct. App. 1911) (“The fact that
the evidence in the case at bar does not show upon whom or how
the service of summons in the original action was made is not
inconsistent with the conclusion that the defendant therein was
properly served with summons, and ‘it must be presumed in
support of the action of the court that such service was shown to it,
although it has not preserved any record thereof.’”) (citation
omitted); Brenner v. Port of Bellingham, 765 P.2d 1333, 1335 (Wash.
Ct. App. 1989) (“When there is a recital in a default judgment that
proper service of process has occurred, a presumption of
jurisdiction arises . . . .”); see also Worthen, 98 F.3d at 484; Haskell,
145 Colo. at 367-68, 358 P.2d at 1026; Kavanagh, 53 Colo. at 165,
125 P. at 516; People ex rel. Wyoming v. Stout, 969 P.2d 819, 821
(Colo. App. 1998).
¶ 42 We therefore conclude that the district court erred in declining
to apply the presumption of regularity to the 1996 default judgment
when it granted the motion to vacate.
19 III. Overcoming the Presumption of Regularity
¶ 43 The presumption of regularity, however, is just that — a
presumption. It’s not conclusive proof that something is true, and
it may be overcome. LePage, ¶ 16; see Krueger v. Ary, 205 P.3d
1150, 1154 (Colo. 2009) (stating that if a rebuttable presumption is
overcome, the presumption no longer establishes the presumed
fact).
¶ 44 The burden therefore was on Mr. Aune to overcome the
presumption attached to the 1996 default judgment. Haskell, 145
Colo. at 368, 358 P.2d at 1026. To do that, Mr. Aune needed to
“affirmatively show” that Judge Barnhill erred in finding that Mr.
Tallman effectuated service on Mr. Aune and complied with the
service rules. LePage, ¶ 16; see also Schuster v. Zwicker, 659 P.2d
687, 690 (Colo. 1983) (presuming judgment correct “until the
contrary affirmatively appears”). Conflicting inferences that may be
drawn from the destroyed return of service alone are insufficient to
overcome the presumption. See LePage, ¶ 16; see also Choctaw &
Chickasaw Nations, 207 F.2d at 766 (“In the absence of any
showing in the record either one way or the other, . . . it will be
20 presumed . . . that all parties to the action were properly served
with process.”).
¶ 45 Mr. Tallman argues that the unsworn statements in Mr.
Aune’s motion to vacate were not sufficient to meet his burden to
overcome the presumption of regularity, and even if the statements
could satisfy this burden, they don’t show by clear and convincing
evidence that the 1996 default judgment was void under C.R.C.P.
60(b)(3). Reviewing the record de novo, see Goodman, 222 P.3d at
314, we agree.
¶ 46 Despite seeking to set aside the 1996 default judgment, Mr.
Aune presented no affidavits or other affirmative evidence showing
that service was not accomplished. Nor did he request an
evidentiary hearing or seek to supplement any of his filings with
affirmative evidence.4 His showing was limited to assertions in his
motion to vacate that he was “never served.” And the motion to
vacate itself — though labeled “verified” — was not accompanied by
an affidavit or signed under oath, and it did not contain an
4Nor does Mr. Aune ask this court to remand for an evidentiary hearing.
21 affirmation that the allegations were true to the best of Mr. Aune’s
knowledge, information, or belief.
¶ 47 At most, then, despite his burden of proof, Mr. Aune presented
the district court with an unsworn assertion that two decades ago
he was never served. Such “self-serving and conclusory inferences
. . . do not suffice as ‘affirmative’ evidence” to overcome the
presumption of regularity. State v. Chaussee, 259 P.3d 783, 790
(Mont. 2011); see also Cambria v. Worldwide Custom Materials, Inc.,
10 So. 3d 615, 617 (Ala. Civ. App. 2008) (concluding that unsworn
assertion that parties had not been served with process was
insufficient to rebut the presumption that the court rendering
default judgment had jurisdiction). For the same reason, Mr. Aune
didn’t satisfy his burden of proof to present clear and convincing
evidence to set aside the 1996 default judgment under C.R.C.P.
60(b)(3). See Goodman, 222 P.3d at 315.
¶ 48 We therefore reverse the district court’s order vacating the
1996 default judgment and remand the case to the district court to
reinstate it. See Haskell, 145 Colo. at 368, 358 P.2d at 1026.
22 IV. Revival of the 1996 Default Judgment
¶ 49 Mr. Tallman lastly asks us to direct the district court to “grant
a nunc pro tunc order for revival of judgment,” arguing he complied
with the procedural requirements to revive the 1996 default
judgment. See Robbins v. A.B. Goldberg, 185 P.3d 794, 797 (Colo.
2008) (allowing for the revival of a judgment if the request was filed
with the court within the required timeframe under C.R.C.P. 54(h)).
The district court didn’t consider the merits of Mr. Tallman’s
motion to revive the 1996 default judgment but instead denied it as
moot. Because we conclude the 1996 default judgment must be
reinstated, the motion to revive is not moot. See Holliday v. Reg’l
Transp. Dist., 43 P.3d 676, 688 (Colo. App. 2001).
¶ 50 Thus, we reverse the denial of Mr. Tallman’s motion to revive
the 1996 default judgment, and on remand, the district court shall
consider his request. We express no opinion on the merits of the
motion.
V. Conclusion
¶ 51 We reverse the district court’s judgment and remand the case
to the district court to reinstate the 1996 default judgment and to
consider Mr. Tallman’s request to revive the 1996 default judgment.
23 JUSTICE MARTINEZ and JUDGE MÁRQUEZ concur.