No. 90CA997 | Colo. Ct. App. | Jun 6, 1991
Opinion by
Defendants, John and Barbara Novinger, appeal the order of the trial court denying their C.R.C.P. 60(b) motion to vacate the default judgment entered against them and in favor of plaintiff, William Roberts. The default was entered by the trial court because defendants did not respond to plaintiff’s amended complaint. We reverse and remand.
In this appeal, defendants contend the default was improperly entered and should have been vacated because they were not notified of the trial court’s order granting
Under C.R.C.P. 55, no default judgment can properly be entered unless a litigant has failed to plead or otherwise respond as required by the rules of civil procedure. C.R.C.P. 55(a).
Here, although defendants received a copy of the underlying proposed amended complaint when plaintiff served notice of the motion to amend, the record indicates that defendants received neither actual nor constructive notice of the court order authorizing the amendment. C.R.C.P. 121 § 1-15(5) requires the trial court, whenever it enters an order denying or granting a motion without a hearing, to forthwith notify the parties of such order. Moreover, it is undisputed that plaintiff failed to serve defendants with a copy of the amended complaint after the court issued its order authorizing such amendment.
Furthermore, we note that the allegations against these defendants are the same in the amended complaint as in the original one. Defendants’ answer to the original complaint had specifically denied those claims. Accordingly, defendants’ answer to the original complaint placed in the record their denial of plaintiff’s claims, and such denials carry forward to provide a denial and answer to the claims in the amended complaint. See Lee v. Colorado Department of Health, 718 P.2d 221" court="Colo." date_filed="1986-05-02" href="https://app.midpage.ai/document/lee-v-colorado-department-of-health-1160017?utm_source=webapp" opinion_id="1160017">718 P.2d 221 (Colo.1986); see also LaGorga v. Kroger Co., 407 F.2d 671" court="3rd Cir." date_filed="1969-03-03" href="https://app.midpage.ai/document/john-jeff-lagorga-v-the-kroger-company-283676?utm_source=webapp" opinion_id="283676">407 F.2d 671 (3d Cir.1969) (answer to initial complaint was an adequate basis for denial of amended complaint where the allegations against defendant were essentially the same). We also note that here, the trial court did not order defendants to file an amended answer.
Under these circumstances, we conclude no valid default judgment was entered on the amended complaint. Consequently, the trial court erred in denying defendants’ motion to vacate the judgment. See C.R.C.P. 55(c).
The judgment of the trial court is reversed, and the cause is remanded for further proceedings.