February 17, 2019

Colorado Court of Appeals: Presumption of Regularity Applied to 20-Year-Old Default Judgment; Error to Place Burden on Plaintiff to Prove Valid Service

The Colorado Court of Appeals issued its opinion in Tallman v. Aune on Thursday, January 24, 2019.

Default Judgment—Presumption of Regularity—Lost or Destroyed Records—C.R.C.P. 60(b)(3).

In 1996, Tallman obtained a default judgment against Aune. About 15 years after the judgment entered, the district court destroyed the case file under its records retention policy. In 2016, Tallman filed writs of garnishment to enforce the judgment and the writs issued. Shortly after, Aune filed a motion to vacate the default judgment and quash the writ of garnishment, asserting that he had not been aware that a judgment had been entered against him and he had not been served. In response, Tallman admitted he could not produce the affidavit of service, but he attached copies of the default motion and default judgment and cited the register of actions entry noting service had been made. The district court granted Aune’s motion to vacate, finding that Tallman failed to establish by clear and convincing evidence that Aune was properly served. It also denied Tallman’s motion to revive the default judgment as moot. Tallman moved for reconsideration, arguing that the presumption of regularity must apply. The district court dismissed the case.

On appeal, Tallman argued that the district court erred in vacating the default judgment and it should have applied the presumption of regularity to presume the default judgment was entered with jurisdiction. Here, though the return of service is no longer available, the register of actions, the limited record, and the 1996 default judgment show service was effectuated, so the presumption of regularity applies. The district court erred in declining to apply the presumption of regularity to the default judgment when it granted the motion to vacate. Further, the burden remained on Aune to overcome the presumption as to the default judgment. At most, Aune provided the district court with an unsworn assertion that he had not been served two decades ago. These inferences do not constitute sufficient evidence to overcome the presumption of regularity. For the same reason, Aune didn’t satisfy his burden of proof to present clear and convincing evidence to set aside the default judgment

Tallman also requested the court of appeals 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 default judgment. Because the default judgment must be reinstated, the motion to revive is not moot.

The judgment was reversed and the case was remanded to reinstate it and to consider Tallman’s request to revive the default judment.

Summary provided courtesy of Colorado Lawyer.

Community Action Network Participates in a Day of Service in Honor of Sarah Rector

By Kate Schuster

On Tuesday, June 18, the Denver Bar Association’s Community Action Network held a day of service in honor of Sarah Rector, a committee member who passed away suddenly last March. CAN members volunteered at two local non-profit organizations, Project Angel Heart and Metro CareRing, and encouraged the entire DBA community to volunteer during the month of June in Sarah’s honor.

At Project Angel Heart volunteers Kris Reed, Arax Corn, and Sarah Millard, helped prepare meals for individuals facing life threatening illnesses.  At Metro CareRing, the nonprofit that benefits from CAN’s annual Roll Out the Barrels Food Drive, volunteers Kasi Schuelke and JoAnne Zboyan provided personal shopping services for families and individuals using Metro CareRing’s services and volunteers Molly McNab, Trent Ongert, Patrick Thiessen, and Robin Perkins helped sort and stock donations in the pantry.

We miss Sarah greatly and the CAN committee is dedicated to honoring her memory through service to Denver at large, which Sarah was passionate about.  If you have any questions or would like to volunteer with CAN please contact Robin Perkins at robineperkins@gmail.com or Kate Schuster at kschuster@cobar.org.

Legal Community Donates More Than $54,000 in Food and Cash for Annual Drive

ROTB2-2Members of the legal community donated food and dollars totaling $54,145 to hunger relief organization Metro CareRing through the Denver Bar Association’s 14th Annual Roll Out the Barrels Food Drive, collecting 3,000 pounds more food than in the previous year.

Forty-eight law firms participated in the drive, collecting 10,093 pounds of food and $31,940 in cash donations. This year’s top donating firms are Berenbaum Weinshienk PC, the Castle Law Group, Faegre Baker Daniels, Katz, Look & Onorato PC, Kilpatrick Townsend & Stockton and Orten Cavanagh & Holmes LLC. The food drive was sponsored by the Denver Bar Association’s Community Action Network and ran April 15 to 26.

ROTB1-1“We’re thrilled that the legal community has stepped up this year to provide even more food to Metro CareRing,” said CAN Committee Chair Kris Reed, a partner with Kilpatrick Townsend & Stockton. “Summer months can hard on families because school is out and kids are home for most meals. We’re pleased the Roll Out the Barrels Food Drive can help close the hunger gap in the metro area.”

Metro CareRing operates one of the largest food pantries in Denver. The food and money donated will translate to approximately 15,600 people provided with a five-day supply of food, according to Metro CareRing.

The Community Action Network Committee offers DBA members year-round opportunities to connect with the community and provide valuable legal, social and civic assistance to those in need.

Electronic Filing Rule Under C.R.C.P. 121 and Rule 305.5 Amended by Colorado Supreme Court

On May 9, 2013, the Colorado Supreme Court issued Rule Change 2013(04). The changes affect C.R.C.P. 121, § 1-26, and Rule 305.5 of the Colorado Rules of County Court Civil Procedure.

The rule change deletes language from C.R.C.P. 121 and Rule 305.5 regarding addresses and contact information in the e-service database. The rule changes clarify that service must be made pursuant to C.R.C.P. 4 and 5, and delete the requirement that the serving party or serving party’s attorney must provide the best known address for each party served.

For a redline of the changes to C.R.C.P. 121, § 1-26, and Rule 305.5 of the Colorado Rules of County Court Civil Procedure, click here. For a complete list of the Supreme Court’s 2013 rule changes, click here.