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This was signed by the Court June 29. We have not altered the content.

Case No. 01 CV 120

DISTRICT COURT, PARK COUTY, COLORADO
Court Address: 300 4th Street
                Post Office Box 190
                Fairplay, CO 80440
Phone Number: 719-836-2940

Plaintiff / Counterclaim Defendant:
Northstar Companies International, LLC
Northstar Design & Construction, LLC dba
Northstar Homes Sales
Northstar Construction

v.

Michael Thomas Meadors
Karen Dudnikov


ORDER


                This matter comes before the Court on Barbara A. Robbins' motion requesting that the court vacate the judgment entered against her individually in this action, and the Court being advised in the matter;

FINDS AND CONCLUDES THAT:

        On October 8, 2002, a default judgment was entered against Plaintiffs\Counterclaim Defendants NorthStar Companies International, LLC; NorthStar Design & Costruction, LLC d/b/a/ NorthSTar Home Sales, d/b/a NorthStar in the total amount of $28,477.15. On May 6, 2004, the Court order that the judgment against NorthStar Companies Internatinoal, LLC, in the amount of $28,477.15 was also entered against Barbara A. Robbins (Robbins) jointly and severally pursuant to C.R.S. §7-80-105. Robbins filed the pending motion to vacate the judgment against her individually on January 18, 2007.

        Robbins does not clearly identify which provision of the Colorado Rules of Civil Procedure under which her motion is filed, although she does make reference in paragraph 29 of her motion to Rule 60(b) of the Federal Rules of Civil Procedure. Factually, Robbins asserts that she was not given adequate notice of the hearing held on March 19, 2004, on Defendants\Counterclaim Plaintiffs' motion to show cause why their judgment should not be entered against her individually thereby denying her due process and rendering the judgment against her void. Construing Robbins' motion liberally, it would appear to seek relief pursuant to C.R.C.P. 60(b)(3) (apply to void judgments). If a party's due process rights were violated by a failure to receive notice C.R.C.P. 60(b)(3) may be a proper basis vacating a judgment. First Nat. Bank of Telluride v. Fleisher, 2P.3d 706, 711-712 (Colo.2000). However, lack of notice of a hearing does nto automatically render a judgment void. Relief under C.R.C.P. 60(b)(3) is required only if the surrounding circumstances indicate that the complaining party's due process right was unfairly compromised by lack of notice. Id. At 714.

        Motions pursuant to C.R.C.P. 60(b)(3) must be made within a 'reasonable time' after the judgment was entered. C.R.C.P. 60(b). However, a void judgment may be challenged under C.R.C.P. 60(b)(3) at any time. McGuire v. Champion Fence & Const., Inc. 104 P. 3d 327, 329 (Colo.App.2004).

        Neither party has requested an evidentiary hearing on the pending motion. Having reviewed its file and the evidence submitted by the parties in support of and in opposition to Robbins' motin, the Court finds that Robbins was provided with adequate notice of the hearing scheduled on March 19, 2004. The Court's file reflects that it entered an order on December 22, 2003, ordering Robbins to “appear before this Court on March 19,2004” to show cause as to why judgment should not be entered against her individually. The Court has examined the originally signed order in the Court's file and notes that when the date of the hearing was first inserted by the clerk, the day noted was the 18th. The “8” was then whited out and a “9” was written over the “8” to change the date to the 19th. The Registry of Actions reflects that this order was signed by the judge and mailed to the parties by the clerk. The Registry of Actions also includes a minute order dated 3/19/2004 which contains an entry by the judge stating “Clerk recalls advising Barbrara [Sic] Robbins that her court date was scheduled for March 19, 2004 on March 1, 2004 when she filed her motion.” The affidavit of Michael Meadors filed in support of the response of Defendants\Counterclaim Plaintiffs corroborates that the notice of hearing reflected that the date of the hearing was March 19th and that the clerk informed the Court that she verbally notified Robbins of this fact. Robbins has submitted not affidavits in support of the factual allegations contained in her motion. The factual allegations contained in her motion are unverified. The only evidence she submits which arguably supports her allegations that she received an incorrect or altered notice of the hearing, is the copy of the order of December 22, 2003, attached to her motion as Attachment 8. This copy of the order does show March “1” as the day of the hearing and it appears that the second digit of the date has been whited out. However, this document standing alone gives rise to two inferences; first, that the second digit was whited out prior to its receipt by Robbins or, second, that the digit was whited out after the notice as received by Robbins. Given that the original notice in the Court's file indicates that the hearing was scheduled on the 19th that the clerk, rather than counsel, mailed a copy of the signed order to Robbins; and that the copy mailed to opposing counsel indicated the date of the hearing was the 19th to infer that the clerk sent Robbins a notice with the second digit whited out does not strike the court as reasonable.

        There is substantial evidence that Robbins had notice of the March 19th hearing, although she did not appear. It is further noted that the Court did not enter judgment against Robbins because she failed to appear at the hearing on March 19,2004. Robbins filed a lengthy written response opposing entry of the judgment against her which the record reflects was considered by the Court prior to deciding the issue and entering judgment. [See Robbins's “Motion to Deny Entering Judgment against Barbara Robbins, Individually”]. Given the circumstances surrounding entry of the judgment against Robbins, relief is not warranted under C.R.C.P. 60(b)(3) First Nat. Bank of Telluride v. Fleisher, supra at. 714.

        To the extent that Robbins' motion may be construed to assert grounds for relief under any other sub-section of C.R.C.P. 60(b) the Court finds that it is untimely. Motions under C.R.C.P. 60(b)(1) (mistake, inadvertence, surprise, or excusable neglect) and C.R.C.P. 60(b)(2) (fraud or misrepresentation by a party) must be brought within six months of entry of the challenged judgment. Robbins' motion was not filed for more than two and a half years after entry of the judgment against her.

        Motions brought under C.R.C.P. 60(b)(4) (judgment satisfied or discharged) or C.R.C.P. 60(b)(5) (any other reason justifying relief from the operation of the judgment) must be brought with a “reasonable time.” An entry dated 5/6/04 on the Registry of actions indicates that the order for entry of judgment entered against Barbara Robbins for $28,477.15 was signed and mailed to the parties. Robbins stated in a signed pleading in bankruptcy court that she called the court “a week or so” after March 1, 2004, and was informed that they hearing had taken place several days ago and “because I wasn't there, I lost due to default.” [Exhibit C to Response to Motion to Vacate Default and Default Judgment]. In her motion Robbins represents to the Court that she discovered the judgment against her in “November 2006 through a separate discovery process.” [Motion ¶ 12]. This claims lacks candor in light of evidence produced by Defendants\Counterclaim Plaintiffs showing that Robbins listed the $28,477.15 judgment when she filed for bankruptcy on October 7, 2005, and moved to vacate this very judgment in bankruptcy court in April, 2006. [Exhibits A-CC to Response to Motion to Vacate Default and Default Judgment]. Notwithstanding these circumstances, Robbins did not file any motion in this Court challenging the May 6,2004 judgment until January 18, 2007. This delay is unjustified and unreasonable. Ehrlinger v. Parker, 137 Colo. 514, 327 P.2d 267 (1958) (three months unreasonable); Martinez v. Dixon, 710 P.2d 498 (Colo Appl 1985) (sixteen months unreasonable)

        Finally, to the extent that Robbins' motion may be construed as being brought under C.R.C.P. 59, it is untimely since it was not filed within 15 days of entry of judgment or within any greater time allowed by the Court. C.R.C.P. 59(a).

        IT IS THEREFORE ORDERED that Robbins motion to vacate the judgment entered against her in this action on May 6, 2004, is denied, with prejudice.

Dated this 29 day of June 2007

BY THE COURT:

Charles M. Barton
District Court Judge.

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