Herrera v. Anderson, 85CA0169
| Decision Date | 05 March 1987 |
| Docket Number | No. 85CA0169,85CA0169 |
| Citation | 736 P.2d 416 |
| Parties | Ralph HERRERA, d/b/a Construction Enterprise, Excavating and Construction Enterprises Excavating, Inc., Plaintiff-Appellee, v. Stanley ANDERSON, d/b/a Anderson Excavating, Defendant-Appellant. . II |
| Court | Colorado Court of Appeals |
No appearance for plaintiff-appellee.
Bell & Pollock, Bradley P. Pollock, Littleton, for defendant-appellant.
In this action to recover amounts due under a construction contract, defendant, Stanley Anderson, appeals from the judgment of the trial court entered in favor of plaintiff in the amount of $21,595. The judgment was entered following a trial to the court at which Anderson was neither present nor represented by counsel. We affirm.
This case was originally filed on June 30, 1982. Anderson obtained the services of an attorney who filed an answer on August 25, 1982. The matter was then set for trial on May 30, 1984, with a pretrial conference scheduled for March 12, 1984.
Sometime in late February 1984, Anderson's attorney committed suicide, leaving him without counsel. Consequently, no one appeared on his behalf at the March pretrial conference, nor did Anderson himself attend.
The trial court, aware that defense counsel had died, caused Anderson to be notified that the trial was scheduled for May 30, 1984, and that the pretrial conference had been rescheduled for April 24, 1984. Further, Anderson was informed that he would have to appear either in person or by counsel at the pretrial conference or the court would take appropriate sanctions against him which could include judgment by default.
Defendant attempted to obtain the services of a new attorney, but that attorney refused to take the case unless a continuance of the trial date was granted. That attorney requested that plaintiff stipulate to a continuance; however, he refused. On May 4th, the new attorney filed a motion with the court in which he entered a "special appearance" and requested that the trial date be continued. This motion was not set for hearing nor was it ruled upon.
Meanwhile, neither defendant nor his attorney appeared at the April 24th pretrial conference. On May 30th, when defendant failed to appear for the scheduled trial date, the court took evidence and entered judgment for plaintiff. Anderson subsequently filed a motion to set aside the judgment which was denied, and a motion for reconsideration which was also denied.
On appeal, Anderson argues that the trial court improperly refused to set aside the judgment and grant him a new trial based solely on the fact that its docket was severely crowded. We disagree.
The granting or denial of a motion for relief from judgment is committed to the sound discretion of the trial court, and its decision will not be disturbed absent a clear abuse of that discretion. In re Marriage of Snyder, 701 P.2d 153 (Colo.App.1985).
Here, the trial court based its decision to deny the motion to set aside judgment on several factors. It noted that Anderson had been informed of the trial date well in advance but had failed to appear on that date even to ask for a continuance. Further, he did not have counsel for the trial, and although his attorney had entered a special appearance and filed a motion for continuance, the motion had not been set for hearing or otherwise pursued.
Under these circumstances, the trial court did not abuse its discretion in denying the motion to set aside judgment.
Anderson next argues that the trial court erred in determining that it was incumbent upon him to set the motion to continue for a hearing in order to obtain a ruling on it.
The burden is on the appellant to provide a record on appeal which justifies reversal of a trial court's judgment, and absent such a record, we presume the regularity of ...
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Brody v. Hellman
...the hearing, to provide them with the fee agreement. Thus, we determine objectors have abandoned this argument. See Herrera v. Anderson, 736 P.2d 416, 418 (Colo.App. 1987)("[I]t goes without saying that one who affirmatively seeks relief, such as a continuance, must pursue his request to it......
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People v. Ullery
...correctness of the trial court's proceedings. See People v. Morgan, 199 Colo. 237, 242, 606 P.2d 1296, 1300 (1980); Herrera v. Anderson, 736 P.2d 416, 418 (Colo.App.1987). Here, the record does indicate that Ullery objected to the discovery of the file containing the disputed materials. Onc......
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Marriage of Finer, In re
...right to a hearing. Father cites City & County of Denver v. Ameritrust Co., 832 P.2d 1054 (Colo.App.1992) and Herrera v. Anderson, 736 P.2d 416 (Colo.App.1987) for the proposition that it is within the trial court's discretion to allow an evidentiary hearing on any written motion. However, ......
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Todd v. Bear Valley Village Apartments
...Voelker, 859 P.2d 805, 809 (Colo.1993). Continuances "shall be granted only for good cause." C.R.C.P. 121 § 1-11; see Herrera v. Anderson, 736 P.2d 416, 418 (Colo.App.1987). We note that credible trial dates are a vital component of our civil justice system. Parties should be able to rely o......
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COLORADO RULES OF CIVIL PROCEDURE
...Section 1-10 (2) is applied in Maxwell v. W.K.A. Inc., 728 P.2d 321 (Colo. App. 1986). Section 1-11 is applied in Herrera v. Anderson, 736 P.2d 416 (Colo. App. 1987); Todd v. Bear Valley Village Apts., 980 P.2d 973 (Colo. 1999). Section 1-15 is applied in Herrera v. Anderson, 736 P.2d 416 (......
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RULE 121
...Section 1-10 (2) is applied in Maxwell v. W.K.A. Inc., 728 P.2d 321 (Colo. App. 1986). Section 1-11 is applied in Herrera v. Anderson, 736 P.2d 416 (Colo. App. 1987); Todd v. Bear Valley Village Apts., 980 P.2d 973 (Colo. 1999). Section 1-15 is applied in Herrera v. Anderson, 736 P.2d 416 (......
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Rule 121 LOCAL RULES — STATEWIDE PRACTICE STANDARDS.
...Section 1-10 (2) is applied in Maxwell v. W.K.A. Inc., 728 P.2d 321 (Colo. App. 1986). Section 1-11 is applied in Herrera v. Anderson, 736 P.2d 416 (Colo. App. 1987); Todd v. Bear Valley Village Apts., 980 P.2d 973 (Colo. 1999). Section 1-15 is applied in Herrera v. Anderson, 736 P.2d 416 (......