v. Aune

     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                            January 24, 2019

                                 

No. 17CA2254, Tallman v. Aune — Civil Procedure — Relief
From Judgment or Order — Judgment is Void; Creditors and
Debtors — Judgments — Presumption of Regularity; Courts and
Court Procedure — Lost or Destroyed Records

     A division of the court of appeals considers whether the

district court erred in vacating a default judgment under C.R.C.P.

60(b)(3) for lack of personal service, where the judgment was twenty

years old, the district court’s case file had been destroyed, and the

return of service was not available. The division concludes that the

presumption of regularity applied to the default judgment and the

defendant had the burden to overcome the presumption that the

default judgment was entered with jurisdiction. The district court,

therefore, erred in placing the burden on the plaintiff to prove valid

service.
     The division further concludes that the defendant did not

present any affirmative evidence to overcome the presumption of

regularity or to show by clear and convincing evidence that the

default judgment was void. Accordingly, the division reverses the

district court’s order vacating the default judgment and remands

the case to the district court to reinstate the default judgment.

     The division also concludes that the plaintiff’s request to revive

the default judgment is not moot. On remand, the district court

shall consider the request to revive the default judgment.
COLORADO COURT OF APPEALS                                            

Court of Appeals No. 17CA2254
Jefferson County District Court No. 96CV1028
Honorable Randall C. Arp, Judge


Michael Eugene Tallman,

Plaintiff-Appellant,

v.

Richard Aune,

Defendant-Appellee.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                   Division VI
                            Opinion by JUDGE DUNN
                       Martinez* and Márquez*, JJ., concur

                          Announced January 24, 2019


Miller Steiert, P.C., Christopher J. Forrest, Stephen J. Woolsey, Littleton,
Colorado, for Plaintiff-Appellant

The Law Office of Ahson Wali LLC, Ahson B. Wali, Greenwood Village,
Colorado, for Defendant-Appellee


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶1    Michael Eugene Tallman obtained a default judgment in 1996

 against Richard Aune. Twenty years after the judgment entered,

 and after the court file had been destroyed, the district court

 granted Mr. Aune’s motion to vacate the default judgment under

 C.R.C.P. 60(b)(3), finding that Mr. Tallman “failed to establish by

 clear and convincing evidence that [Mr. Aune] was ever properly

 served in this case.” Mr. Tallman asks us to reverse that ruling

 because, in his view, (1) the district court erred in declining to apply

 the presumption of regularity to the default judgment and presume

 it was entered with jurisdiction and (2) Mr. Aune’s unsworn

 statements in his motion to vacate the default judgment were not

 sufficient to overcome the presumption of regularity or meet his

 threshold burden to establish that the default judgment was void.

¶2    Because we agree with Mr. Tallman, we reverse the district

 court’s judgment and remand the case for reinstatement of the

 default judgment.

                              I.     Background

                         A.        The Court Record

¶3    This case comes to us under unusual circumstances. Though

 asked to consider whether the district court erred in vacating Mr.


                                        1
 Tallman’s default judgment obtained nearly two decades ago, we are

 limited by the district court’s destruction of the case file under its

 records retention policy (nearly fifteen years after the default

 judgment entered). Only the register of actions survived the purge,

 reflecting what was filed and when. Nothing in the register

 indicated that the parties were notified about the records retention

 policy or the destruction of the case file.

¶4    While the original court pleadings were destroyed, Mr. Tallman

 possessed copies of two pleadings that his attorney had, at some

 point, provided him: (1) the September 1996 “verified motion for

 entry of default” (default motion) and (2) the district court’s

 December 1996 “judgment and order” entering default judgment

 against Mr. Aune (1996 default judgment). Given the destruction of

 the case file, Mr. Tallman filed a verified motion for new order or

 record under section 13-1-104, C.R.S. 2018, asking the court to

 enter the two pleadings in “the record with the same effect which

 the original record would have had if [the pleadings] had not been

 lost or destroyed.” Mr. Aune did not dispute that the two pleadings

 in Mr. Tallman’s possession were true and accurate. The district




                                     2
 court granted the motion, making these pleadings part of the

 record.

¶5    We therefore take the facts and procedural history from the

 register of actions and the limited replaced portions of the district

 court’s record.

                    B.    The 1996 Default Judgment

¶6    Those records show that Mr. Tallman filed a complaint against

 Mr. Aune in 1996. Mr. Aune did not file an answer or otherwise

 respond to the complaint. Mr. Tallman then filed the default

 motion under C.R.C.P. 55. As relevant here, the motion stated that

            Mr. Tallman filed his complaint on May 23, 1996;

            “a copy of the [c]omplaint and [s]ummons was served

             upon [Mr. Aune] in Honolulu, Hawaii, on July 16, 1996,

             a copy of which [was] filed with this Court, (See copy of

             [s]ummons and [a]ffidavit attached hereto as Exhibits 1

             and 2, respectively)”;1




 1The referenced exhibits were not attached to the copy of the
 default motion that Mr. Tallman retained and the court entered as
 part of the recreated record.

                                       3
          more than thirty days had passed since “personal

            service”; and

          Mr. Aune had not answered or responded.

¶7    The default motion was verified via Mr. Tallman’s counsel’s

 sworn and notarized statement that the information was “true to

 the best of [his] knowledge, information and belief.”

¶8    The surviving register of actions showed several entries

 consistent with the default motion, including a complaint filed on

 May 23, 1996, “SVC” on July 16, 1996, and “[s]ummons” on August

 2, 1996. The register of actions also reflected that the clerk of court

 entered default in October 1996.

¶9    The district court later granted Mr. Tallman’s verified motion

 for default judgment. In the 1996 default judgment, the court made

 the following relevant factual findings:

          The complaint was filed on May 23, 1996.

          “Service was effectuated on [Mr. Aune] on July 16, 1996.”

          A responsive pleading “should have been filed” no later

            than August 15, 1996.

          Mr. Tallman had “complied with all applicable rules for

            entry of default judgment.”

                                    4
           Mr. Tallman was entitled to judgment in the amount of

             $91,574.45.

           And Mr. Tallman was “entitled to execute upon this

             judgment in accordance with law.”

¶ 10   The 1996 default judgment was signed by District Court Judge

  Kenneth Barnhill and dated December 11, 1996. It was entered in

  the register of actions on that date.

                C.    Garnishment and Motion to Vacate

¶ 11   Beyond a 2011 notation that the case file was “[d]estroyed,”

  the register of actions reflected no activity until 2016 when Mr.

  Tallman filed writs of garnishment, seeking to enforce the 1996

  default judgment. The writs issued, and Mr. Tallman served them

  on several banks.

¶ 12   Shortly after, Mr. Aune filed what he captioned a “verified

  motion to vacate default judgment and quash writ of garnishment”

  (motion to vacate). In this motion, Mr. Aune asserted that (1) he

  was not previously “aware that he had been sued or that a

  judgment had been entered against him”; (2) Mr. Tallman “could not

  provide a copy of the [a]ffidavit of [s]ervice”; and (3) he “would have

  defended this matter had he been properly served.” Mr. Aune then


                                     5
  asserted, in conclusion, that he “was never served in this case” and

  “a default judgment obtained without service of process” is void. He

  therefore asked the district court “to vacate the [1996 default

  judgment] and quash all writs of garnishment.”

¶ 13   In response, Mr. Tallman admitted that he could not produce

  the affidavit of service but argued that he properly served Mr. Aune

  and complied with the rules for entry of default judgment. As

  evidence that he did, Mr. Tallman attached the default motion, the

  1996 default judgment, and email exchanges with the court

  regarding the destruction of the case file. He also pointed to the

  register of actions entry, noting “SVC on 7-16-96.” And Mr.

  Tallman argued that Mr. Aune “failed to present any proof that he

  was not served or that the judgment [was] void” and had not

  satisfied his burden to establish by clear and convincing evidence

  that the 1996 default judgment should be vacated.

¶ 14   Mr. Tallman later filed an affidavit from the attorney who

  obtained the 1996 default judgment. That affidavit stated that “he

  was the attorney of record in this matter in 1996” and that he

  “understand[s] and [was] informed that service on [Mr. Aune] in this

  case was effectuated in Hawaii.” Counsel also stated he


                                    6
  “specifically recall[ed] looking into the issue of service of process in

  Hawaii” and he only handled one case that required service there.

¶ 15   The district court granted Mr. Aune’s motion to vacate. In

  doing so, it found that Mr. Tallman “failed to produce” the affidavit

  of service and, without the affidavit of service, nothing showed “the

  essential facts to demonstrate adequacy of service.” Accordingly,

  the court concluded that Mr. Aune had “met [his] burden.” It then

  shifted the burden to Mr. Tallman and concluded that he had not

  established that Mr. Aune was properly served.

                      D.   The Motion to Reconsider

¶ 16   Mr. Tallman moved the court to reconsider, arguing that the

  presumption of regularity must apply. He specifically contended

  that the court must presume that the 1996 default judgment was

  properly entered and that Mr. Aune was properly served — a

  requirement for entry of a default judgment. He further argued that

  Mr. Aune’s unsworn statements did “not affirmatively show that

  service did not occur, nor [did they] overcome the presumption of

  regularity.”

¶ 17   The district court rejected the argument, noting that Mr.

  Tallman “cited no authority indicating that the presumption ha[d]


                                      7
  been applied to a [district] court’s review of its own record in

  Colorado.” The court added that even if the presumption of

  regularity does apply to a district court, it is “not the standard by

  which to judge [Mr. Aune’s motion to vacate].”

¶ 18     The district court later dismissed the case.

                 II.   Vacating the 1996 Default Judgment

¶ 19     Mr. Tallman contends that the district court erred in vacating

  the 1996 default judgment. More to the point, he argues that the

  district court should have applied the presumption of regularity to

  presume the 1996 default judgment was entered with jurisdiction.

                          A.   Standard of Review

¶ 20     We review de novo a district court’s order granting relief from a

  default judgment under C.R.C.P. 60(b)(3). Goodman Assocs., LLC v.

  WP Mountain Props., LLC, 

 (Colo. 2010).

¶ 21     Mr. Aune, however, argues that because Mr. Tallman didn’t

  raise the presumption of regularity until the motion for

  reconsideration, we should review only for an abuse of discretion.2

  See Hytken v. Wake, 

 (Colo. App. 2002). While Mr.




  2   Mr. Aune raises no preservation challenge.

                                      8
  Aune is correct on the timing, the district court considered the

  argument and concluded the presumption of regularity didn’t apply.

  And whether the district court applied the correct legal standard is

  a question of law that we review de novo. Wal-Mart Stores, Inc. v.

  Crossgrove, 

. In any event, a district court abuses

  its discretion if it applies the wrong legal standard. 

                B.    Requirements for Default Judgment

¶ 22   When a defendant fails to defend against a civil lawsuit, the

  plaintiff may request “a judgment by default.” C.R.C.P. 55(b).3 To

  obtain one, the plaintiff must provide the court with the following:

           “[t]he original summons showing valid service on the

             particular defendant in accordance with [C.R.C.P.] 4”;

           an affidavit stating the facts necessary to show proper

             venue;

           an affidavit establishing that the defendant is not an

             infant, an incompetent person, an officer or agency of

             Colorado, or in the military service; and




  3The requirements for entry of default judgment have not
  materially changed since 1996.

                                     9
           an affidavit or exhibit establishing the amount of

            damages.

  C.R.C.P. 121, § 1-14(1); see also Crow-Watson No. 8 v. Miranda, 

 (Colo. App. 1986) (“C.R.C.P. 121 § 1–14 . . .

  specifies what documents, affidavits, and other information must be

  provided to the court before default judgment is entered.”).

¶ 23   What remains of the record confirms that Judge Barnhill

  found that Mr. Tallman complied with these procedural

  requirements.

                          C.   C.R.C.P. 60(b)(3)

¶ 24   To set aside a default judgment, the defendant “bears the

  burden of establishing by clear and convincing evidence that the

  motion should be granted.” Goodman, 

; see also

  Borer v. Lewis, 

 (Colo. 2004) (same). And while

  a default judgment entered without jurisdiction is void, the “burden

  of proof remains upon the defendant to establish lack of personal

  jurisdiction resulting in a void judgment under C.R.C.P. 60(b)(3).”

  Goodman, 

. But Goodman recognizes an exception

  to this general rule in those cases where “the return of service

  insufficiently recites the essential facts to demonstrate adequacy of


                                    10
  service.” 

 In such a case, Goodman instructs that the burden

  “may” shift back to the plaintiff. 

                       D.   The Goodman Exception

¶ 25   Mr. Tallman contends that the district erred in concluding

  that his inability to produce the return of service, along with Mr.

  Aune’s claim that he was “never served,” shifted the burden to Mr.

  Tallman to prove service under the Goodman exception. Under the

  circumstances here, we agree.

¶ 26   The district court specifically concluded that “[b]ecause the

  affidavit [of service] does not exist, it cannot state ‘the essential

  facts to demonstrate adequacy of service,’” and thus it shifted the

  burden to Mr. Tallman to prove service. Goodman, however, didn’t

  address a situation where the default judgment and register of

  actions showed the defendant was served but the court file was

  destroyed, leaving no return of service to review. Rather, the

  Goodman exception says only that a court may shift the burden

  back to the plaintiff when a “return of service” insufficiently recites

  facts demonstrating adequate service. 

 This exception, therefore,

  presupposes the return is available in the record and the dispute is

  over the sufficiency of the return’s contents. See 

 at 316


                                      11
  (declining to consider whether the burden shifted to the plaintiff

  where the service affidavit was in the record and the record

  demonstrated adequate service); cf. In re Marriage of Thacker, 

 (Colo. App. 1985) (setting aside marriage dissolution

  decree where the record showed that the return of service named a

  person other than defendant). Such an exception is not surprising

  given that a “[r]eturn of service is prima facie evidence of the facts

  recited.” Stegall v. Stegall, 

 (Colo. App. 1987).

¶ 27   The return of service recitals’ sufficiency — or the lack thereof

  — is not the dispute here. Because the return of service is not

  available, Mr. Aune can’t point to any insufficient factual recital in

  the return. For the same reason, we can’t consider the sufficiency

  of the return’s factual recitals. We therefore don’t agree that

  Goodman’s burden-shifting exception applies here.

¶ 28   Instead, when the register of actions, the limited record, and

  the 1996 default judgment show service was effectuated, but the

  return of service is no longer available, the presumption of

  regularity applies.




                                     12
                     E.   Presumption of Regularity

¶ 29   The presumption of regularity generally presumes that a

  judgment is valid and was properly entered. See LePage v. People,

  

; see also Cook v. Cook, 

 (1951)

  (recognizing that the court presumes a sister state’s judgment was

  entered with “jurisdiction over the subject matter and over the

  persons”). This presumption is “deeply rooted in our

  jurisprudence.” Parke v. Raley, 

 (1992). And

  Colorado has long recognized it. See Haskell v. Gross, 

, 

 (1961); Kavanagh v. Hamilton, 

, 

, 516 (1912).

¶ 30   Indeed, “[t]here is no principle of law better settled, than that

  every act of a court of competent jurisdiction shall be presumed to

  have been rightly done, till the contrary appears[.]” Voorhees v.

  Jackson, 

 (1836); see also Haskell, 

, 

. “[T]his rule applies . . . to every judgment or

  decree, rendered in the various stages of their proceedings from the

  initiation to their completion[.]” Voorhees, 

; see

  Guthner v. Union Fin. & Loan Co., 

, 

  237, 239 (1943) (presuming the validity of the trial court’s findings

  made in support of its order).

¶ 31   Mr. Aune argues the presumption of regularity doesn’t apply

  because he “never claimed” Judge Barnhill “committed error.”

  Instead, he “merely” alleged that Mr. Tallman “did not properly

  serve” him.

¶ 32   We are unconvinced for two reasons. First, while true Mr.

  Aune challenged service of process, the necessary corollary to that

  argument is that Judge Barnhill erred in finding that (1) “service

  was effectuated on” Mr. Aune and (2) Mr. Tallman “complied with all

  applicable rules” to obtain the 1996 default judgment (one of which

  required him to provide the original summons showing “valid

  service” “in accordance” with the service rules). C.R.C.P. 121,

  § 1-14(1)(a). Thus, a motion to vacate a default judgment based on

  lack of service of process is, by extension, a contention that the

  district court erred in entering default judgment based on a finding

  of valid service.

¶ 33   But, even if we agree that Mr. Aune “never claimed” Judge

  Barnhill “committed error,” the result is no different. If true, then

  Mr. Aune concedes that Judge Barnhill correctly found that “service


                                    14
  was effectuated on” Mr. Aune and that Mr. Tallman “complied with

  all applicable rules” to obtain the 1996 default judgment. And if

  correct, these findings again refute Mr. Aune’s claim that he was

  not served.

¶ 34   Second, our supreme court applied the presumption of

  regularity to a somewhat similar contention in Haskell. There, the

  defendant failed to answer the plaintiff’s complaint after initially

  appearing in the case. Haskell, 

, 

.

  As a result, the court entered default judgment. 

 The defendant

  then moved to vacate the default judgment, arguing that he had not

  been served with the required notice before the court entered the

  default judgment. Id.; see also C.R.C.P. 55(b) (requiring the

  application for a default judgment to be served on a defendant who

  has appeared in the action). Because neither the record nor

  evidence before the district court showed whether the notice had

  been served, the district court vacated the default judgment.

  Haskell, 

, 

.

¶ 35   Our supreme court reversed, reinstating the default judgment.

  

, 

. The court explained that “[i]t was

  incumbent upon the [district] court to give effect to the presumption


                                     15
  that the legal prerequisites to the entry of a valid judgment had

  been duly observed.” 

, 

. It went on to

  explain that “[i]t has always been the law in this state that in the

  absence of anything in the record to the contrary, the [reviewing]

  court will presume that the facts necessary to warrant the judgment

  were proved or admitted.” 

 (citation omitted). The supreme court

  therefore concluded that the default judgment was entitled to a

  presumption of regularity. 

, 

.

¶ 36   To the extent Mr. Aune argues that the presumption of

  regularity may be applied only by appellate courts and not the

  district court, we are not persuaded that the presumption is so

  limited. After all, Haskell itself suggested that the district court

  erred in not applying the presumption to its own default judgment.

  Id.; see also United States v. Manos, 

 (S.D. Ohio

  1972) (federal district court recognized that a default judgment

  entered in that court was “presumptively valid” when considering a

  motion to vacate the default judgment).

¶ 37   Nor do we agree with Mr. Aune’s suggestion that the

  destruction of the case file doesn’t matter. Indeed, given its premise

  that a court observes the legal requirements necessary to enter a


                                     16
  valid judgment, the presumption of regularity is particularly apt

  where, as here, the court file is silent or has been lost or destroyed.

  See LePage, ¶ 15; see also Haskell, 

, 

 (applying the presumption of regularity where the

  “record [was] silent” as to whether a hearing notice was filed before

  entry of a judgment).

¶ 38   The Ninth Circuit Court of Appeals took this approach in

  Securities & Exchange Commission v. Worthen, 

 (9th Cir.

  1996). In that case, the district court entered default judgment

  after the defendant failed to respond to the complaint. 

.

  The court’s file was later lost, and “only the docket sheet

  documenting [the court] filings and orders [was] . . . available.” 

¶ 39   The defendant moved to vacate the default judgment under

  Fed. R. Civ. P. 60(b), arguing, in part, that the judgment was void

  for lack of service. 

. The district court denied the

  motion, and the Ninth Circuit affirmed. 

 In rejecting the

  defendant’s argument, the Ninth Circuit applied the presumption of

  regularity to the default judgment. 

. It concluded that

  although the return of service in the court file had been lost, the

  docket sheet showed that the return of service had been filed in the


                                    17
  district court and this, together with the presumption of regularity,

  showed the judgment was not void. Id.; see also Choctaw &

  Chickasaw Nations v. City of Atoka, 

 (10th Cir.

  1953) (noting that where a party challenged a judgment for lack of

  jurisdiction and a fire had destroyed the court’s records, “a

  presumption arises in favor of the validity of the judgment and the

  existence of all matters going to the power of the court to render the

  judgment”).

¶ 40   Given all this, we disagree with Mr. Aune that the presumption

  of regularity doesn’t apply to the 1996 default judgment. We,

  instead, conclude that it was “incumbent upon the [district] court to

  give effect to the presumption that the legal prerequisites to the

  entry of a valid judgment had been duly observed.” Haskell, 

, 

; see also Worthen, 

; Hoag v. Jeffers, 

 (Ind. 1928) (“A judgment

  by default, regular upon its face, is presumed to be clothed with the

  presumption that it was properly entered, when the record does not

  show anything inconsistent with such presumption.”).

¶ 41   And integral to that presumption is that Mr. Tallman properly

  served Mr. Aune and the court had jurisdiction to enter the 1996


                                    18
  default judgment. Hansen v. Pingenot, 

 (Colo.

  App. 1987) (“The mere existence of a default judgment . . . raises a

  presumption of valid jurisdiction.”); see Seaboard Nat’l Bank v.

  Ackerman, 

 (Cal. Dist. Ct. App. 1911) (“The fact that

  the evidence in the case at bar does not show upon whom or how

  the service of summons in the original action was made is not

  inconsistent with the conclusion that the defendant therein was

  properly served with summons, and ‘it must be presumed in

  support of the action of the court that such service was shown to it,

  although it has not preserved any record thereof.’”) (citation

  omitted); Brenner v. Port of Bellingham, 

 (Wash.

  Ct. App. 1989) (“When there is a recital in a default judgment that

  proper service of process has occurred, a presumption of

  jurisdiction arises . . . .”); see also Worthen, 

; Haskell,

  

, 

; Kavanagh, 

,

  125 P. at 516; People ex rel. Wyoming v. Stout, 

  (Colo. App. 1998).

¶ 42   We therefore conclude that the district court erred in declining

  to apply the presumption of regularity to the 1996 default judgment

  when it granted the motion to vacate.


                                     19
                III.   Overcoming the Presumption of Regularity

¶ 43       The presumption of regularity, however, is just that — a

  presumption. It’s not conclusive proof that something is true, and

  it may be overcome. LePage, ¶ 16; see Krueger v. Ary, 

 (Colo. 2009) (stating that if a rebuttable presumption is

  overcome, the presumption no longer establishes the presumed

  fact).

¶ 44       The burden therefore was on Mr. Aune to overcome the

  presumption attached to the 1996 default judgment. Haskell, 

, 

. To do that, Mr. Aune needed to

  “affirmatively show” that Judge Barnhill erred in finding that Mr.

  Tallman effectuated service on Mr. Aune and complied with the

  service rules. LePage, ¶ 16; see also Schuster v. Zwicker, 

 (Colo. 1983) (presuming judgment correct “until the

  contrary affirmatively appears”). Conflicting inferences that may be

  drawn from the destroyed return of service alone are insufficient to

  overcome the presumption. See LePage, ¶ 16; see also Choctaw &

  Chickasaw Nations, 

 (“In the absence of any

  showing in the record either one way or the other, . . . it will be




                                       20
  presumed . . . that all parties to the action were properly served

  with process.”).

¶ 45   Mr. Tallman argues that the unsworn statements in Mr.

  Aune’s motion to vacate were not sufficient to meet his burden to

  overcome the presumption of regularity, and even if the statements

  could satisfy this burden, they don’t show by clear and convincing

  evidence that the 1996 default judgment was void under C.R.C.P.

  60(b)(3). Reviewing the record de novo, see Goodman, 

, we agree.

¶ 46   Despite seeking to set aside the 1996 default judgment, Mr.

  Aune presented no affidavits or other affirmative evidence showing

  that service was not accomplished. Nor did he request an

  evidentiary hearing or seek to supplement any of his filings with

  affirmative evidence.4 His showing was limited to assertions in his

  motion to vacate that he was “never served.” And the motion to

  vacate itself — though labeled “verified” — was not accompanied by

  an affidavit or signed under oath, and it did not contain an




  4Nor does Mr. Aune ask this court to remand for an evidentiary
  hearing.

                                    21
  affirmation that the allegations were true to the best of Mr. Aune’s

  knowledge, information, or belief.

¶ 47   At most, then, despite his burden of proof, Mr. Aune presented

  the district court with an unsworn assertion that two decades ago

  he was never served. Such “self-serving and conclusory inferences

  . . . do not suffice as ‘affirmative’ evidence” to overcome the

  presumption of regularity. State v. Chaussee, 

  (Mont. 2011); see also Cambria v. Worldwide Custom Materials, Inc.,

  

 (Ala. Civ. App. 2008) (concluding that unsworn

  assertion that parties had not been served with process was

  insufficient to rebut the presumption that the court rendering

  default judgment had jurisdiction). For the same reason, Mr. Aune

  didn’t satisfy his burden of proof to present clear and convincing

  evidence to set aside the 1996 default judgment under C.R.C.P.

  60(b)(3). See Goodman, 

.

¶ 48   We therefore reverse the district court’s order vacating the

  1996 default judgment and remand the case to the district court to

  reinstate it. See Haskell, 

, 

.




                                     22
               IV.   Revival of the 1996 Default Judgment

¶ 49   Mr. Tallman lastly asks us to direct the district court to “grant

  a nunc pro tunc order for revival of judgment,” arguing he complied

  with the procedural requirements to revive the 1996 default

  judgment. See Robbins v. A.B. Goldberg, 

 (Colo.

  2008) (allowing for the revival of a judgment if the request was filed

  with the court within the required timeframe under C.R.C.P. 54(h)).

       The district court didn’t consider the merits of Mr. Tallman’s

  motion to revive the 1996 default judgment but instead denied it as

  moot. Because we conclude the 1996 default judgment must be

  reinstated, the motion to revive is not moot. See Holliday v. Reg’l

  Transp. Dist., 

 (Colo. App. 2001).

¶ 50   Thus, we reverse the denial of Mr. Tallman’s motion to revive

  the 1996 default judgment, and on remand, the district court shall

  consider his request. We express no opinion on the merits of the

  motion.

                             V.   Conclusion

¶ 51   We reverse the district court’s judgment and remand the case

  to the district court to reinstate the 1996 default judgment and to

  consider Mr. Tallman’s request to revive the 1996 default judgment.


                                    23
JUSTICE MARTINEZ and JUDGE MÁRQUEZ concur.




                      24