Interesting trick to avoid court-stipulated agreement
Salvo v. Simone, 727 P.2d 879 (Colo.App. 09/25/1986)
 Colorado Court of Appeals
 No. 85CA0196
 727 P.2d 879, 1986.CO.40172 <http://www.versuslaw.com>
 Decided and Filed: September 25, 1986.
 JOSEPH A. SALVO, PLAINTIFF-APPELLEE, v. RICHARD N. DE SIMONE,
DEFENDANT-APPELLANT, AND TRENDSETTER OF COLORADO SPRINGS ,
 Appeal from the District Court of El Paso County , Honorable Bernard R. Baker,
 John C. Eastlack, Attorney for Plaintiff-Appellee.
 Charles J. Haase, Attorney for Defendant-Appellant.
 Judge Sternberg, Pierce and Tursi, J., Concur.
 STERNBERG, J.
 The defendant, Richard N. De Simone, appeals from the denial of his motion to set
aside judgment. We reverse and remand.
 In December 1982, plaintiff, Joseph A. Salvo, filed suit against De Simone and
Trendsetter of Colorado Springs, Inc. The suit sought compensatory damages for
defendants' failure to complete construction of plaintiff's home in a good and
workmanlike manner. When defendants failed to respond, a default judgment was entered
on February 18, 1983. The following month, on De Simone's motion, the court set aside
the default as to De Simone on the question of his individual liability, but let stand the
judgment against Trendsetter and the amount of damages assessed.
 On December 15, 1983, a stipulation and settlement agreement was executed by
plaintiff and De Simone and thereafter approved by the trial court. As pertinent here, the
agreement required De Simone to complete construction and repair the home on or before
April 1, 1984. In the event that De Simone failed to do so, it further provided that:
"Plaintiff shall be entitled to complete an affidavit and statement of non-compliance by
[De Simone] and judgment shall enter by the court against the Defendant, Richard N. De
Simone individually . . . ."
 Pursuant to this stipulation, on October 5, 1984, plaintiff filed a sworn motion for
entry of judgment alleging that De Simone had failed to provide materials and labor for
completion of construction and for correction of the defects in the home. The motion was
not served on De Simone. The trial court granted the motion and entered judgment in
favor of plaintiff on October 17, 1984.
 On October 26, De Simone moved to set aside the judgment alleging that plaintiff's
motion for entry of judgment did not set forth a true and correct statement of the facts
and that, therefore, it constituted a fraud on the court. De Simone also asserted that he
was entitled to notice and hearing under the provisions of C.R.C.P. 55(b). The motion
was accompanied by an affidavit asserting that the repairs and work required by the
settlement agreement had been adequately completed.
 Finding that the settlement agreement did not permit the filing of a traverse affidavit
by De Simone, and that it removed all factual determinations from the jurisdiction of the
court, the trial court concluded that plaintiff had satisfied the terms of the settlement
agreement by filing its sworn motion. It then denied defendant's motion to set aside the
 De Simone reasserted his fraud claim in a motion seeking reconsideration of the trial
court's denial of his motion to set aside the judgment. The trial court again denied the
motion, reaffirming its earlier findings of fact and conclusions of law emphasizing
plaintiff's compliance with the terms of the settlement agreement for obtaining judgment.
In addition, the trial court found that the settlement agreement was intended to avoid
further litigation and that the parties, having made their own agreement, were bound by its
 Seeking reversal of the trial court's denial of his motions, De Simone contends that he
is entitled to a hearing on his fraud claim. Although we reject De Simone's assertion that
the provisions of C.R.C.P. 55(b) entitle him to a hearing, we reverse the trial court's order
denying his motion to set aside the judgment.
 A judgment entered pursuant to a stipulated agreement is not a default judgment;
thus, the provisions of C.R.C.P. 55 do not apply, and an ex parte entry of judgment is
valid if the procedure for obtaining judgment set forth in the agreement does not require a
hearing. In Re Marriage of George, 650 P.2d 1353 ( Colo. App. 1982); Kopel v. Davie ,
163 Colo. 57, 428 P.2d 712 (1967). However, where the necessity for relief from
judgment on the basis of fraud comes to the attention of the court, the provisions of
C.R.C.P. 60(b)(2) may be invoked without requiring the filing of a motion so
denominated. 11 C. Wright & A. Miller, Federal Practice & Procedure § 2865 (1973). See
generally Kopel v. Davie , supra.
 C.R.C.P. 60(b)(2) provides that relief from final judgment may be had on the ground
of fraud whether intrinsic or extrinsic. C.R.C.P. 1(a) directs that the rules of procedure be
liberally construed. Therefore, we hold that the allegations set forth in De Simone's
C.R.C.P. 55 motion are sufficient to assert a basis for relief from judgment on the basis
of fraud. See C.R.C.P. 60(b)(2); Estate of Bonfils v. Davis, 190 Colo. 70, 543 P.2d 701
(1976). Thus, De Simone is entitled to a determination of his motion on its merits
following a hearing. See C.R.C.P. 121 § 1-15(4) and 11 C. Wright & A. Miller, Federal
Practice & Procedure § 2866 (1973).
 Accordingly, the judgment is reversed, and the cause is remanded for determination
of De Simone's motion to set aside judgment.
 JUDGE PIERCE and JUDGE TURSI concur.
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