Summary
holding that violation of the notice requirement "mandates vacation of the entry of default as well as the default judgment"
Summary of this case from First National Bank v. FleisherOpinion
No. 80CA0132
Decided December 26, 1980.
Appeal from the District Court of Pitkin County, Honorable Gavin D. Litwiller, Judge.
Garfield Hecht, K. Roulhac Garn, for plaintiffs-appellees.
John P. Van Ness, for defendants-appellants.
Division I.
Defendants, Rip Martin Enterprises and R. P. Martin, appeal from the denial of a motion to vacate a default judgment entered against them. We reverse.
On April 25, 1979, defendants were served with a summons and complaint by plaintiffs. Since no response was filed within the required time limit, default was entered against defendants by the clerk on June 6, 1979.
On June 26, 1979, defendants' attorney filed an entry of appearance with the district court, but no copy of the entry of appearance was served upon plaintiffs.
Defendants' attorney was orally informed on July 30, 1979, that a hearing was to be held that day on plaintiffs' motion for default judgment. No written notice to either defendants or their attorney preceded this hearing. At the hearing, the trial court denied defendants' motion for continuance, and entered default judgment against them.
Defendants filed a motion to set aside the entry of default and default judgment, and also filed an answer and counterclaim on August 2, 1979.
Defendants contend on appeal that the trial court erred in entering default judgment against them since the notice requirement of C.R.C.P 55(b)(2) was not complied with. We agree.
I.
C.R.C.P. 55(b)(2) states: "If the party against whom judgment by default is sought has appeared in the action, he (or, if appearing by representative, his representative) shall be served with written notice of the application for judgment at least three days prior to the hearing on such application."
It is uncontested that no written notice of the July 30 hearing was served on either defendants or their attorney. However, plaintiff contends that the defendants did not make an appearance sufficient to trigger the notice requirement of C.R.C.P. 55(b)(2). We disagree.
The Colorado Supreme Court has expressed a judicial disinclination to apply technical concepts in determining whether a party had entered an appearance for purposes of the notice requirement of C.R.C.P. 55(b)(2). R.F. v. D.G.W., 192 Colo. 528, 560 P.2d 837 (1977). See Carls Construction, Inc. v. Gigliotti, 40 Colo. App. 535, 577 P.2d 1107 (1978).
The defendants' attorney here filed an appearance with the court. Defendants therefore appeared for purposes of the notice requirement of C.R.C.P. 55(b)(2), and since defendants were not served with notice, the default judgment entered against them is void. See Salter v. Board of Commissioners, 126 Colo. 39, 246 P.2d 890 (1952).
II.
We see no distinction between a default entered for failure to appear and answer, and a default entered for failure to file a timely answer after an appearance has been entered. See Bankers Union Life Insurance Co. v. Fiocca, 35 Colo. App. 306, 532 P.2d 57 (1975). Thus, we hold that failure to comply with the notice provision of C.R.C.P. 55(b)(2), mandates vacation of the entry of default as well as the default judgment, thus rendering further proceedings on the default issue unwarranted. Bankers Union Life Insurance Co. v. Fiocca, supra. Since defendant filed an answer and counterclaim prior to entry of a valid default judgment, this answer and counterclaim was timely, and must be reinstated. Bankers Union Life Insurance Co. v. Fiocca, supra.
The judgment is reversed and the cause remanded with directions to reinstate defendants' answer and counterclaim.
JUDGE RULAND concurs.