v. Aune, 2019 COA 12

Background

In 1996 Tallman obtained a default judgment against Aune; the judgment recited that service was effectuated on July 16, 1996, and a default judgment was entered for $91,574.45.
The original case file (including the return/affidavit of service) was destroyed under the court’s retention policy years later; only the register of actions and copies of the default motion and judgment (provided by Tallman) remained.
In 2016 Tallman sought writs of garnishment to enforce the 1996 judgment; after garnishments issued, Aune moved to vacate the default judgment under C.R.C.P. 60(b)(3), claiming he was never served.
The district court granted Aune’s motion, reasoning Tallman failed to produce the affidavit/return of service and therefore did not prove adequacy of service. The court shifted the burden to Tallman.
Tallman moved for reconsideration arguing the presumption of regularity applied to the 1996 default judgment and that Aune’s unsworn assertions were insufficient to overcome that presumption. The district court denied relief and dismissed the case.
The Colorado Court of Appeals reversed: it held the presumption of regularity applied, the burden remained on Aune to rebut it with affirmative evidence, and Aune’s unsworn, conclusory assertions did not meet the clear-and-convincing standard to void the judgment. The case was remanded to reinstate the default judgment and consider Tallman’s motion to revive it.

Issues

Issue	Plaintiff's Argument (Tallman)	Defendant's Argument (Aune)	Held
Whether the presumption of regularity applies to a long‑standing default judgment when the court file (including return of service) was destroyed	Presumption applies; judgment and docket entries showing service should be presumed valid and jurisdictional	Presumption should not control; lack of affidavit/return of service means plaintiff must prove service	Presumption of regularity applies; district court erred in refusing to apply it
Which party bears the burden to show service when the return is missing	Burden remains on defendant to overcome presumption; Goodman exception (burden shift) does not apply where return is lost, not merely insufficient	District court properly shifted burden to plaintiff because affidavit/return of service was absent	Burden stayed with defendant; Goodman’s burden‑shifting exception does not apply when the return is unavailable
Whether Aune’s submissions rebutted the presumption or met the clear‑and‑convincing standard to void the judgment under C.R.C.P. 60(b)(3)	Aune’s unsworn statements are insufficient; no affirmative evidence or evidentiary hearing was sought	Aune asserted he was never served and the plaintiff could not produce the affidavit of service	Aune failed to present affirmative, sworn evidence; unsworn, conclusory assertions do not overcome the presumption or satisfy clear‑and‑convincing standard
Whether Tallman’s motion to revive the judgment is moot given the vacatur	Revival is not moot if judgment is reinstated; court should consider revival on remand	District court treated revival as moot after vacatur	Revival denial reversed as mootness was improper; district court must consider motion on remand

Key Cases Cited

Goodman Assocs., LLC v. WP Mountain Props., LLC, 222 P.3d 310 (Colo. 2010) (defendant bears burden under C.R.C.P. 60(b)(3); return‑of‑service insufficiency may justify burden shift)
Haskell v. Gross, 358 P.2d 1024 (Colo. 1961) (presumption of regularity requires courts to presume legal prerequisites for valid judgment were observed)
Securities & Exchange Comm’n v. Worthen, 98 F.3d 480 (9th Cir. 1996) (applying presumption of regularity where court file was lost and docket indicated service filed)
Crow‑Watson No. 8 v. Miranda, 736 P.2d 1260 (Colo. App. 1986) (procedural requirements for entry of default judgment)
Stegall v. Stegall, 756 P.2d 384 (Colo. App. 1987) (return of service is prima facie evidence of facts recited)
Krueger v. Ary, 205 P.3d 1150 (Colo. 2009) (rebuttable presumptions may be overcome by evidence)