Carls Const., Inc. v. Gigliotti, 77-438
| Citation | 40 Colo.App. 535,577 P.2d 1107 |
| Decision Date | 06 April 1978 |
| Docket Number | No. 77-438,77-438 |
| Parties | CARLS CONSTRUCTION, INC., and Carl Phelps, Plaintiff-Appellee, v. Joe GIGLIOTTI, Individually and d/b/a Custom Concrete Products, Defendants-Appellants. . III |
| Court | Court of Appeals of Colorado |
Kirschenmann, King, Dawes & Ker, Jon R. Ker, Durango, for defendants-appellants.
Defendant, Joe Gigliotti, appeals the trial court's denial of his motion to set aside a default judgment. We reverse.
On November 8, 1976, defendant was served with summons and complaint in Webb County, Texas. His answer was therefore due on December 8, 1976. C.R.C.P. 12(a). Sometime in mid-December, defendant, acting without counsel, mailed to the court a letter which purported to be an answer and which set out a number of meritorious defenses. Though the trial court received the letter on December 28, 1976, it was never filed since defendant did not tender a docket fee. Without further notice to defendant, the court granted plaintiff's motion for a default judgment on January 11, 1977.
The first question we address is whether the letter is a sufficient "appearance" under C.R.C.P. 55(b)(2) to entitle defendant to three days notice and a hearing. We hold that it is. As the Supreme Court said in R.F. v. D.G.W., Colo., 560 P.2d 837 (1977):
Here, the letter clearly indicated an intention on Gigliotti's part to defend, and the three-day notice requirement of C.R.C.P. 55(b)(2) was therefore triggered. See Bankers Union Life Insurance Co. v. Fiocca, 35 Colo.App. 306, 532 P.2d 57 (1975).
Furthermore, we are not aware of any rule, statute, or case authority which makes the payment of the docket fee a prerequisite to an entry of appearance for the purpose of entitling a party to notice before entry of default judgment. Here, the defendant was only informed by the summons that he must submit an answer within a definite period of time. The court was aware of defendant's address on the return of summons and could have requested payment of the docket fee. However, the case cannot proceed to a determination of the issues without payment of the fee. See § 13-32-101...
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...entitled to notice when they did not make any contact with the court prior to the entry of default); Carls Constr., Inc. v. Gigliotti, 40 Colo.App. 535, 536, 577 P.2d 1107, 1108-09 (1978) (holding that the defendant sufficiently appeared and triggered the notice requirements by filing a let......
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...defendant's attorney did nothing until judgment was taken six weeks later. The same reasoning was applied in Carl's Constr. Inc. v. Gigliotti, 40 Colo.App. 535, 577 P.2d 1107 (1978): "Defendant, Joe Gigliotti, appeals the trial court's denial of his motion to set aside a default judgment. W......
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