Opinion
April 30, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Larry V. Johnson, Boulder, for plaintiff-appellee.
Hutchinson, Black, Hill, Buchanan & Cook, John A. Purvis, Boulder, for defendants-appellants.
RULAND, Judge.
Defendants appeal from a judgment denying their motion to vacate a prior default judgment. We affirm.
On October 25, 1972, plaintiff filed suit against defendants, seeking damages for breach of warranty. No responsive pleading was filed within the time allowed by C.R.C.P. 12, and on November 27, 1972, the trial court entered default judgment against defendants. On January 11, 1973 defendants filed a motion to set aside the default judgment. In support of the motion, defendant Starbuck filed an affidavit setting forth as reasons for his failure to obtain counsel and answer in a timely manner: (1) That his personal business commitments required extensive travel and thus he was unable to keep appointments with his attorney; and (2) he made attempts to negotiate settlement directly with plaintiff and plaintiff's counsel. On January 12, 1973, the trial court denied defendants' motion. On March 8, 1973, defendants, by new counsel, moved to enlarge the time for appeal. That motion was granted, and defendants prosecute this appeal.
Defendants contend here that the trial court erred in refusing to set aside the default judgment because, in entering that judgment, the trial court did not have before it evidence sufficient to establish the amount of plaintiff's damages. However, the evidence in the record supports the amount of damages awarded.
In order to set aside a default judgment, C.R.C.P. 60(b) requires both a showing of excusable neglect and the existence of a meritorious defense. Moskowitz v. Michaels Artists & Engineering Supplies, Inc., 29 Colo.App. 44, 477 P.2d 465. The determination of those issues rests within the sound discretion of the trial court, and that determination will not be set aside on review unless an abuse of discretion is clearly shown. Riss v. Air Rental, Inc., 136 Colo. 216, 315 P.2d 820.
In the instant case, the trial court concluded that the neglect in answering plaintiff's complaint was not excusable because of defendant Starbuck's admitted communication with both plaintiff and Starbuck's attorney during the time for responsive pleading and his failure to request an extension of time within which to answer. The court further found that the defendant took personal responsibility for conducting his defense and only belatedly requested the assistance of counsel. Therefore, when, as here, it appears that the defendant himself is responsible for the failure to file a timely response, a trial court does not abuse its discretion in refusing to set aside a default judgment. See Weeks v. Sigala, Colo.App., 509 P.2d 320.
Judgment affirmed.
PIERCE and SMITH, JJ., concur.