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Interesting trick to avoid court-stipulated agreement

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  • Legalbear
    Salvo v. Simone, 727 P.2d 879 (Colo.App. 09/25/1986) [1] Colorado Court of Appeals [2] No. 85CA0196 [3] 727 P.2d 879, 1986.CO.40172
    Message 1 of 1 , Feb 24, 2006
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      Salvo v. Simone, 727 P.2d 879 (Colo.App. 09/25/1986)

       

      [1] Colorado Court of Appeals

       

      [2] No. 85CA0196

       

      [3] 727 P.2d 879, 1986.CO.40172 <http://www.versuslaw.com>

       

      [4] Decided and Filed: September 25, 1986.

       

      [5] JOSEPH A. SALVO, PLAINTIFF-APPELLEE, v. RICHARD N. DE SIMONE,

      DEFENDANT-APPELLANT, AND TRENDSETTER OF COLORADO SPRINGS ,

      INC., DEFENDANT

       

      [6] Appeal from the District Court of El Paso County , Honorable Bernard R. Baker,

      Judge.

       

      [7] John C. Eastlack, Attorney for Plaintiff-Appellee.

       

      [8] Charles J. Haase, Attorney for Defendant-Appellant.

       

      [9] Judge Sternberg, Pierce and Tursi, J., Concur.

       

      [10] Sternberg

       

      [11] STERNBERG, J.

       

      [12] The defendant, Richard N. De Simone, appeals from the denial of his motion to set

      aside judgment. We reverse and remand.

       

      [13] 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.

       

      [14] 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 . . . ."

       

      [15] 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.

       

      [16] 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.

       

      [17] 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

      judgment.

       

      [18] 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

      terms.

       

      [19] 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.

       

      [20] 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.

       

      [21] 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).

       

      [22] Accordingly, the judgment is reversed, and the cause is remanded for determination

      of De Simone's motion to set aside judgment.

       

      [23] JUDGE PIERCE and JUDGE TURSI concur.

       

      19860925

       

       

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