Dickinson v. Lincoln Bldg. Corp.

• Decision Date: 19 November 2015
• Docket Number: Court of Appeals No. 14CA0901, 14CA1511
• Citation: 378 P.3d 797
• Parties: Charlene DICKINSON, Plaintiff–Appellant and Cross–Appellee, v. LINCOLN BUILDING CORPORATION, a foreign corporation and Wells Fargo Bank NA, Cross–Appellants G4S Secure Solutions (USA) Inc.a foreign corporation, Defendant–Appellee.
• Court: Colorado Court of Appeals

378 P.3d 797

Charlene DICKINSON, Plaintiff–Appellant and Cross–Appellee

v. LINCOLN BUILDING CORPORATION, a foreign corporation and Wells Fargo Bank NA, Cross–AppellantsG4S Secure Solutions (USA) Inc.a foreign corporation, Defendant–Appellee.

Court of Appeals No. 14CA0901, 14CA1511

Colorado Court of Appeals, Div. III.

Announced November 19, 2015

As Modified December 17, 2015

Cook & Pagano, PC, Stephen H. Cook, James L. Pagano, Lafayette, Colorado, for Plaintiff–Appellant and Cross–Appellee.

Montgomery Amatuzio Dusbabek Chase, LLP, David Fawley, Sara K. Stieben, Fort Collins, Colorado, for Cross–Appellee.

Zupkus & Angell, P.C., Richard L. Angell, Muliha A. Khan, Denver, Colorado, for Defendant–Appellee.

Opinion by JUDGE FOX

¶ 1 This consolidated appeal arises from a premises liability case brought by Charlene Dickinson against Lincoln Building Corporation, a foreign corporation (LBC); Wells Fargo Bank National Association, a foreign corporation (Wells Fargo); and G4S Secure Solutions (USA) Inc., a foreign corporation (G4S). Dickinson sought damages for shoulder injuries sustained when she attempted to open a door leading to her workplace that she alleged was locked or malfunctioning.¹

¶ 2 Although LBC and Wells Fargo do not dispute that they were served, they failed to either enter an appearance or file an answer. The district court entered default against them. They then filed a joint motion to set aside the default, which the court denied; and a joint motion to reconsider, which the court also denied. LBC and Wells Fargo appeal from those denials (case number 14CA1511), and we affirm.

¶ 3 Following the entry of default, the court conducted a damages hearing. LBC and Wells Fargo requested the opportunity to present evidence of the comparative fault of Dickinson and G4S at the hearing. The court denied the request. LBC and Wells Fargo also appeal that denial (case number 14CA1511) and, again, we affirm.

¶ 4 Meanwhile, G4S responded to the complaint and denied liability. Following a jury trial, the court entered judgment in favor of G4S, which Dickinson now appeals (case number 14CA901), and we affirm. Dickinson also appeals from the district court's order denying her motion for a new trial (case number 14CA901). We affirm the order as well.

I. Dickinson v. LBC and Wells Fargo (Case Number 14CA1511)

A. Background

¶ 5 The record reflects the following sequence of events:

• August 29, 2012: Dickinson filed a complaint against LBC and Wells Fargo, asserting claims of negligence and premises liability.

• September 7, 2012: Dickinson timely served LBC and Wells Fargo with the complaint and summons, as evidenced by the returns of service filed in the district court.

• January 2, 2013: The court dismissed the case when Dickinson failed to comply with the court's Delay Reduction Order.

• January 2, 2013: Dickinson filed (1) a motion under C.R.C.P. 60(b)

requesting

that the court reconsider its dismissal order and (2) a motion for entry of default against LBC and Wells Fargo. Because LBC and Wells Fargo had not answered or entered appearances, the motions were not served on them.

• February 4, 2013: The district court vacated its dismissal order and reinstated the case. The order was electronically served on all appearing parties.

• March 6, 2013: The district court entered default against LBC and Wells Fargo.

• August 19, 2013: LBC and Wells Fargo entered an appearance.

• September 6, 2013: LBC and Wells Fargo filed a joint motion to set aside the default under C.R.C.P. 55(c)

or C.R.C.P. 60(b).

• November 26, 2013: The court heard argument on, and denied, the motion to set aside the default.

• March 20, 2014: LBC and Wells Fargo filed a joint motion requesting that the court reconsider its denial of their motion to set aside the entry of default.

• May 8, 2014: The district court issued a written order denying LBC's and Wells Fargo's motion to reconsider.

• May 27–28, 2014: A damages hearing was held, in which LBC and Wells Fargo participated.

• June 18, 2014: the district court awarded Dickinson $527,098.67 in damages, $179,545.82 in prejudgment interest, and $21,118.98 in costs.

B. Entry of Default

¶ 6 LBC and Wells Fargo first contend that the court abused its discretion in declining to set aside its entry of default. They primarily argue that the default should have been set aside because (1) it was entered in violation of their right to due process of the law and (2) Dickinson's complaint was not well-pleaded. We reject both contentions.

1. Standard of Review

¶ 7 Normally, a decision to grant relief from an entry of default is within the trial court's discretion and is reviewed for abuse of that discretion. Goodman Assocs., LLC v. WP Mountain Props., LLC, 222 P.3d 310, 314 (Colo.2010)

. A court abuses its discretion when its decision is manifestly arbitrary, unreasonable, unfair, or contrary to law. Id. ; Singh v. Mortensun, 30 P.3d 853, 856 (Colo.App.2001). But whether a defaulting party's due process right was violated by lack of notice presents a question of law that we review de novo. First Nat'l Bank v. Fleisher, 2 P.3d 706, 714 (Colo.2000).

2. Law and Analysis

¶ 8 LBC and Wells Fargo argue that Dickinson's failure to serve them with her C.R.C.P. 60

motion, which requested that the court reconsider its dismissal, and the court's reinstatement order constitutes a due process violation and renders the court's later entry of default invalid. We disagree. As pertinent here, C.R.C.P. 5(a) requires service of “every pleading subsequent to the original complaint,” and “every written motion other than one which may be heard ex parte.” However, “[n]o service need be made on parties in default for failure to appear.” C.R.C.P. 5(a).

¶ 9 Dickinson properly served LBC and Wells Fargo with the complaint and summons. LBC and Wells Fargo did not enter an appearance or file an answer until almost one year later, which was well after the court had entered default and long past the twenty-one day deadline required under C.R.C.P. 12(a)(1)

. See

Plaza del Lago Townhomes Ass'n, Inc. v. Highwood Builders, LLC, 148 P.3d 367, 371 (Colo.App.2006) (concluding that a defendant “appear[s] in the action” when he communicates with the court in a manner that demonstrates that he is aware of the proceedings and intends to participate in them). Thus, LBC and Wells Fargo were “parties in default for failure to appear,” and service of the C.R.C.P. 60 motion was not required. Compare

Realty World–Range Realty, Ltd. v. Prochaska, 691 P.2d 761, 763 (Colo.App.1984) (rejecting the defendants' due process argument because, after being served with the complaint, they “did not make contact with the court prior to the entry of judgment against them”), with F & S Constr. Co. v. Christlieb, 166 Colo. 67, 70, 441 P.2d 656, 657–58 (1968)

(due process violation where the defendant had no actual notice of the suit, promptly filed a motion to set aside default, and presented a meritorious defense), and

Bankers Union Life Ins. Co. v. Fiocca, 35 Colo.App. 306, 308, 532 P.2d 57, 58–59 (1975) (due process violation where defendants had appeared in the case and indicated a clear intent to defend).

¶ 10 LBC and Wells Fargo nonetheless argue that (1) they were not “in default” because they believed that the case had been dismissed or, alternatively, (2) Dickinson's reinstatement motion constituted “new or additional claims for relief,” which must be served on defaulted defendants under C.R.C.P. 5(a)

. We reject these arguments.

¶ 11 First, nothing in the record supports LBC's and Wells Fargo's argument that they believed the case had been dismissed or that they relied on that dismissal in failing to respond or enter an appearance. In their motion to set aside default, LBC and Wells Fargo told the district court that they had just become aware of the case “a few weeks ago,” but they did not explain how. In a later court appearance, LBC and Wells Fargo conceded that they “had no earthly idea” how the case “got lost.” Then, in the motion requesting the court to reconsider setting aside default, LBC and Wells Fargo changed their position by stating that they knew about the case, were informed of the dismissal, and relied on that dismissal in declining to respond. In its order denying LBC and Wells Fargo relief from default, the district court found this contention to be without support and concluded

there is no factual support in the record for this statement. If there is any factual support for it at all, [LBC and Wells Fargo] are directed to file it with the Court immediately. Even if this statement were true, it would not constitute good cause for the failure to timely respond to the Complaint. On the contrary, it would show that [LBC and Wells Fargo] were aware of the case and their failure to file an Answer was deliberate.

Because this finding has record support, we decline to disturb it. C.R.C.P. 52

; Leo Payne Pontiac, Inc. v. Ratliff, 178 Colo. 361, 366, 497 P.2d 997, 999 (1972).

¶ 12 Second, Dickinson's motion did not constitute “new or additional claims for relief.” See C.R.C.P. 5(a)

. The C.R.C.P. 60(b) motion simply resurrected claims that had already been served on LBC and Wells Fargo in Dickinson's original complaint. The existing claims were not amended nor were any new claims added. Contra

Continental Oil Co. v. Benham, 163 Colo. 255, 257–60, 430 P.2d 90, 90–92 (1967) (defaulted defendants were not served with the plaintiff's motion requesting relief from a foreclosure sale; plaintiff's request, in substance, included new claims for relief that threatened potentially new consequences for the defendants, rather than merely revitalizing pre-existing claims). LBC and Wells Fargo do not cite any authority, nor have we found any in Colorado, requiring new service under these circumstances. Thus, new service was not required.

¶ 13 Accordingly, we conclude that the court did not err in rejecting LBC's and Wells Fargo's contention that the default should be set aside. See Goodman Assocs., 222...