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Gestner v. Gestner.

2024 COA 55. No. 23CA1498. Court of Appeals Jurisdiction—Default Judgment—Final Appealable Order—Preservation.

May 16, 2024

Bruce Allen Gestner and Mary Jean Gestner (plaintiffs) are Bruce Michael Gestner’s parents. All own a single-family residence in joint tenancy (the property), which has been Bruce Michael’s home for about 30 years. The parties’ relationship deteriorated, and plaintiffs filed a lawsuit against Bruce Michael to partition the property. Bruce Michael was served with the complaint but did not answer it or appear in the case, and the clerk entered a default against him. Plaintiffs moved for a default judgment, which the district court entered, and plaintiffs then moved for possession of the property, including the right to evict Bruce Michael. The district court granted that motion. Counsel for Bruce Michael then entered an appearance and filed a motion to reconsider the order granting plaintiffs possession of the property. A week later, Bruce Michael filed an answer and counterclaim, along with a motion for relief from the default judgment. But before the district court ruled on the motion to reconsider or the motion for relief from judgment, Bruce Michael filed his notice of appeal of the default judgment. The district court thus concluded that it lacked jurisdiction to rule on the pending motions, and it took no action on them.

The court of appeals held that while it has jurisdiction over a direct appeal from a default judgment, normal preservation rules apply. Typically, a party challenging a default judgment based on a failure to respond to the complaint moves to set aside the default judgment in the district court and, if the motion is denied, appeals that denial. Here, however, Bruce Michael did not wait for the district court to rule on his motion to set aside the default judgment and instead appealed the default judgment itself. The court determined that when a party has not appeared or presented any arguments in the district court before default judgment is entered, the party’s challenges to the default judgment generally will not be reviewable on the merits, as a matter of preservation. Accordingly, while the court has jurisdiction over such an appeal, the party’s failure to develop the record or to preserve any arguments in the district court will likely prevent appellate review of the issues raised on appeal. Here, because Bruce Michael failed to preserve his arguments in the district court, the court declined to address them for the first time on appeal. But Bruce Michael may pursue his motion to set aside the default judgment in the district court or subsequently appeal the ruling on that motion.

Lastly, the court denied plaintiffs’ request for appellate attorney fees and costs because Bruce Michael’s appeal raised an issue of first impression, and his arguments were not so frivolous or lacking in substantial justification as to warrant an attorney fees award.

The judgment was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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