Anderson v. Gegus-Brown

24CA0443 Anderson v Gegus-Brown 12-26-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0443
Larimer County District Court No. 23CV30389
Honorable Juan G. Villaseñor, Judge

Denice Anderson,

Plaintiff-Appellee,

v.

Shawn Gegus-Brown, a/k/a Shawn Brown,

Defendant-Appellant.

ORDER AFFIRMED

Division I
Opinion by JUDGE LIPINSKY
J. Jones and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 26, 2024

Hadfield, Stieben & Doutt, LLC, Gordon M. Hadfield, Sara K. Stieben, Michie
Kuhlman, Fort Collins, Colorado, for Plaintiff-Appellee

Stinar, Zendejas, Burrell & Wilhelmi, PLLC, Christopher G. Wilhelmi, Colorado
Springs, Colorado, for Defendant-Appellant
¶1 Defendant, Shawn Gegus-Brown, appeals the district court’s

order denying her motion to set aside the default judgment entered

against her. We affirm.

I. Background Facts and Procedural History

¶2 In July 2021, Gegus-Brown’s dog bit plaintiff, Denise

Anderson, while Anderson was viewing a room for rent in

Gegus-Brown’s home. Paramedics took Anderson to a hospital,

where she was treated for multiple lacerations and received stitches

in her right cheek, chin, and neck.

¶3 Anderson filed a lawsuit against Gegus-Brown in May 2023.

Anderson asserted three negligence claims arising from the dog bite

incident and requested awards of economic damages, noneconomic

damages, and damages for permanent impairment and

disfigurement, as well as interest and court costs.

¶4 According to the return of service that Anderson submitted to

the court, a process server served Gegus-Brown with the complaint

two days after Anderson filed it.

¶5 After Gegus-Brown failed to file an answer or other response,

the court directed Anderson to submit a motion for default

judgment. In that motion, Anderson requested entry of a judgment

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in the amount of $259,869.41 — $258,088.64 in damages and

$1,780.77 in “legal costs.” The damages figure included $8,088.64

for medical expenses, $100,000 for permanent disfigurement, and

$150,000 for additional noneconomic damages.

¶6 The court conducted an evidentiary hearing on damages in

August 2023. Gegus-Brown failed to appear at the hearing. The

court entered a final judgment in Anderson’s favor in the amount of

$259,869.41.

¶7 Anderson later filed a motion to add $46,178.97 in

prejudgment interest to the amount of the judgment. The court

granted the motion and increased the amount of the judgment to

$304,267.61.

¶8 Four months after the damages hearing, Gegus-Brown,

through counsel, filed a motion to set aside the default judgment

(the motion to set aside), arguing that the judgment was void under

C.R.C.P. 60(b)(3) because Anderson had never served her.

Gegus-Brown’s lawyer asserted in the motion to set aside that

Gegus-Brown had meritorious defenses and that equity favored

setting aside the default judgment.

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¶9 The court conducted an evidentiary hearing on the motion to

set aside. Gegus-Brown appeared pro se and Anderson appeared

through counsel.

¶ 10 The court explained that it was struggling to make sense of the

arguments presented in the motion to set aside. It remarked that

the motion to set aside referred to conflicting theories under

C.R.C.P. 60(b)(1) and C.R.C.P. 60(b)(3). The court explained that

C.R.C.P. 60(b)(1) applies when the moving party argues that she

was served but failed to respond due to excusable neglect. The

court said that, in contrast, a party can obtain relief under C.R.C.P.

60(b)(3) if she was never served.

¶ 11 After noting that Gegus-Brown’s lawyer argued in the motion

to set aside that Gegus-Brown was never served, the court said it

would construe her argument at the hearing as a request to set

aside the default judgment for lack of service under C.R.C.P.

60(b)(3). When the court asked Gegus-Brown whether she

understood what it had said, Gegus-Brown responded, “Somewhat.”

¶ 12 Gegus-Brown and her ex-husband testified in support of the

motion to set aside. Anderson’s lawyer called one witness — a

process server who testified that he had served Gegus-Brown,

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whom he identified in the courtroom as the individual he had

served.

¶ 13 The court afforded Gegus-Brown multiple opportunities to

object when Anderson’s lawyer cross-examined her and to present

additional arguments in her rebuttal case. The court told her, “It[’]s

your motion so you get a rebuttal case. Any, anything else you

want to present I mean Ms. Gegus-Brown. You can testify again if

you want based on what you heard” at the hearing. Gegus-Brown

responded, “No, Your Honor.”

¶ 14 At the conclusion of the hearing, the court denied the motion

to set aside. The court said that the testimony of Gegus-Brown’s

ex-husband was “far-fetched fiction and . . . an attempt to deceive

the Court” and that Gegus-Brown’s testimony was “similarly

evasive.” The court further found that her testimony was “not

credible.”

¶ 15 Gegus-Brown appeals the order denying the motion to set

aside.

II. Analysis

¶ 16 Gegus-Brown contends that the court abused its discretion by

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• refusing to allow her to argue excusable neglect under

C.R.C.P. 60(b)(1) at the hearing and not considering the

factors outlined in McMichael v. Encompass PAHS

Rehabilitation Hospital, LLC, 2023 CO 2, ¶ 13, 522 P.3d

713, 719, for determining whether a judgment should be

set aside for excusable neglect; and

• entering an excessive damages award against her.

A. Gegus-Brown’s Excusable Neglect Argument

¶ 17 Gegus-Brown contends that the court erred by not considering

whether the default judgment against her should be set aside for

excusable neglect under C.R.C.P. 60(b)(1). The record, however,

shows that Gegus-Brown did not present a C.R.C.P. 60(b)(1)

argument in her motion to set aside or at the hearing and,

furthermore, that the court did not limit the arguments that

Gegus-Brown could present at the hearing.

1. Standard of Review

¶ 18 We review a district court’s order on a motion to set aside a

default judgment for an abuse of discretion. Plaza del Lago

Townhomes Ass’n v. Highwood Builders, LLC, 148 P.3d 367, 373

(Colo. App. 2006). A court abuses its discretion when its decision

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“rests on a misunderstanding or misapplication of the law, or when

its decision is manifestly arbitrary, unreasonable, or unfair.”

Sebastian v. Douglas County, 2013 COA 132, ¶ 12, 370 P.3d 175,

177 (citation omitted), aff’d, 2016 CO 13, 366 P.3d 601.

2. Gegus-Brown’s Motion to Set Aside

¶ 19 Although Gegus-Brown’s lawyer mentioned “excusable neglect”

in the motion to set aside, he did not present an excusable neglect

argument in that motion. Gegus-Brown’s lawyer cited — but did

not apply to the facts of Gegus-Brown’s case — the three factors

that courts consider when determining whether a default judgment

may be set aside for excusable neglect under C.R.C.P. 60(b)(1). See

McMichael, ¶ 13, 522 P.3d at 719 (When determining whether to

relieve a party of a default judgment under C.R.C.P. 60(b), a court

should consider “(1) whether the neglect that resulted in entry of

judgment by default was excusable; (2) whether the moving party

has alleged a meritorious claim or defense; and (3) whether relief

from the challenged order would be consistent with considerations

of equity.” (quoting Buckmiller v. Safeway Stores, Inc., 727 P.2d

1112, 1116 (Colo. 1986))).

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¶ 20 Rather, Gegus-Brown’s lawyer attempted to shoehorn the

McMichael factors into his argument that Anderson’s default

judgment should be set aside for lack of personal service under

C.R.C.P. 60(b)(3). The McMichael factors do not apply to C.R.C.P.

60(b)(3) arguments, however. For example, the first McMichael

factor focuses on whether the moving party’s neglect was excusable.

Yet a party who was never served cannot argue that she did not

respond to the opposing party’s complaint because the surrounding

circumstances “would cause a reasonably careful person similarly

to neglect a duty.” McMichael, ¶ 14, 522 P.3d at 719 (quoting In re

Weisbard, 25 P.3d 24, 26 (Colo. 2001)). A litigant has no duty to

respond to a complaint never served on her.

¶ 21 In any event, nowhere in the motion to set aside did

Gegus-Brown’s lawyer argue that Gegus-Brown’s failure to respond

to Anderson’s complaint was attributable to excusable neglect. Her

additional claims that she had a meritorious defense and that

equitable considerations favored granting her relief from the default

judgment — the remaining McMichael factors — are irrelevant in the

absence of an assertion of excusable neglect. It is of no

consequence that a defendant has a meritorious defense if the

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defendant was never served. A judgment cannot stand if the

defendant was never served, regardless of the strength of the

moving party’s defenses. Similarly, equitable considerations are

irrelevant if the defendant was never served.

¶ 22 In addition, although Gegus-Brown’s lawyer emphasized in the

statement of the facts section of the opening brief that

Gegus-Brown was not served with Anderson’s motion for entry of

default judgment and the related filings and orders (the default

judgment documents), he did not argue that the default judgment

entered against Gegus-Brown should be set aside for that reason.

Moreover, in the motion to set aside, Gegus-Brown’s lawyer did not

assert that the default judgment documents should have been

served on Gegus-Brown. In any event, Gegus-Brown was not

entitled to service of any filings or orders in the case before her

attorney entered his appearance on her behalf following the entry of

the default judgment against her. See Goodman Assocs., LLC v. WP

Mountain Props., LLC, 222 P.3d 310, 323 (Colo. 2010).

¶ 23 But even if Gegus-Brown’s appellate lawyer intended to

challenge service of the default judgment documents, we would not

consider such argument on the merits because it was neither

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preserved nor sufficiently developed. See Melat, Pressman & Higbie,

L.L.P. v. Hannon L. Firm, L.L.C., 2012 CO 61, ¶ 18, 287 P.3d 842,

847 (“It is axiomatic that issues not raised in or decided by a lower

court will not be addressed for the first time on appeal.”); Grand

Junction Peace Officers’ Ass’n v. City of Grand Junction, 2024 COA

89, ¶ 28, 558 P.3d 1021, 1031 (declining to consider undeveloped

assertion).

3. The Evidentiary Hearing

¶ 24 In addition, Gegus-Brown did not argue excusable neglect at

the hearing on the motion to set aside, although the court permitted

her to do so.

¶ 25 As noted above, at the beginning of the hearing, the court

attempted to determine what arguments Gegus-Brown’s lawyer

asserted in the motion to set aside, which the court characterized

as “very confusing.” The court noted that the motion to set aside

referred to two conflicting arguments — that the default judgment

was void under C.R.C.P. 60(b)(3) because Gegus-Brown was never

served and that her failure to respond to Anderson’s complaint was

excusable under C.R.C.P. 60(b)(1). In light of the motion to set

aside’s focus on Anderson’s alleged failure to serve Gegus-Brown,

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the court said, “[S]o as I see it, the only ground that we’re

proceeding under is that you were not served with process

properly. . . . I don’t see any grounds for [proceeding] under . . .

[C.R.C.P.] 60(b)(1), excusable neglect. Do you understand what I

said?” Gegus-Brown responded “[s]omewhat” and did not indicate

what portions, if any, of the court’s statement she did not

understand or ask for clarification.

¶ 26 Accordingly, the court did not bar Gegus-Brown from

presenting an excusable neglect argument under C.R.C.P. 60(b)(1).

Rather, it determined that the motion to set aside rested on an

argument that Anderson had never served Gegus-Brown, and that

Gegus-Brown intended to present such an argument at the hearing.

¶ 27 In any event, the court allowed Gegus-Brown to raise

additional arguments at the hearing. After Gegus-Brown testified

that she was never served, the court asked, “Anything else you want

to add as far as service?” Gegus-Brown responded, “[M]y attorney

that had been representing me told me [that] this was just going to

be the service of . . . papers.”

¶ 28 At the conclusion of Gegus-Brown’s testimony, the court gave

her yet another opportunity to raise further arguments. The court

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asked, “Ms. Gegus-Brown, anything else you want to add to your

testimony in a narrative fashion?” Gegus-Brown responded, “No,

thank you, Your Honor.” Thus, the record shows that the court

afforded Gegus-Brown several opportunities to present additional

arguments, each of which she declined.

¶ 29 Under these circumstances, we conclude that the court’s

denial of the motion to set aside neither “rest[ed] on a

misunderstanding or misapplication of the law” nor was “manifestly

arbitrary, unreasonable, or unfair.” Sebastian, ¶ 12, 370 P.3d at

177. At the hearing, Gegus-Brown presented a C.R.C.P. 60(b)(3)

argument and declined to present any other arguments. For these

reasons, we hold that the court did not abuse its discretion by

declining to consider whether Gegus-Brown’s default was

attributable to excusable neglect.

B. Gegus-Brown’s Argument Regarding the Amount of
the Default Judgment

¶ 30 Gegus-Brown contends that the court erred by entering an

excessive judgment against her. But she did not provide us with a

transcript of the hearing at which Anderson presented evidence in

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support of her request for entry of a judgment in the amount of

$259,869.41, and the court entered a judgment in that amount.

¶ 31 “If [the] appellant intends to include transcripts of any

hearings or trial . . . in the record on appeal, the appellant must file

a designation of transcripts with the trial court . . . .” C.A.R.

10(d)(1). “The appellant must include in the record transcripts of

all proceedings necessary for considering and deciding the issues

on appeal.” C.A.R. 10(d)(3).

¶ 32 “[I]f the appellant does not provide a complete record on

appeal, we must presume the record supports the trial court’s

conclusions.” Colorado Dep’t of Pub. Health & Env’t v. Bethell, 60

P.3d 779, 787 (Colo. App. 2002).

¶ 33 The burden was on Gegus-Brown to request the transcript.

Without the transcript, we cannot review the evidence supporting

the court’s award of damages to Anderson, are unable to consider

Gegus-Brown’s excessive damages argument, and must defer to the

court’s determination of damages.

III. Disposition

¶ 34 The order is affirmed.

JUDGE J. JONES and JUDGE SULLIVAN concur.

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