Tucco Home v. Air Pros

24CA0503 Tucco Home v Air Pros 03-20-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0503
El Paso County District Court No. 22CV30909
Honorable Gregory R. Werner, Judge

Tucco Home Improvements LLC,

Plaintiff-Appellee,

v.

Air Pros One Source LLC,

Defendant-Appellant.

ORDER AFFIRMED

Division III
Opinion by JUDGE MEIRINK
Dunn and Tow, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 20, 2025

Bufkin & Schneider Law, LLC, Bradley T. Bufkin, Colorado Springs, Colorado,
for Plaintiff-Appellee

Jensen Cofer LLC, Trevor L. Cofer, Lars F. Bergstrom, Colorado Springs,
Colorado, for Defendant-Appellant
¶1 Defendant, Air Pros One Source LLC (Air Pros), appeals the

district court’s amended order denying its motion to set aside

default judgment in favor of plaintiff, Tucco Home Improvements

LLC (Tucco). We affirm.

I. Background

¶2 Tucco initiated an action against Air Pros for unpaid contracts.

After receiving no response, Tucco filed a motion for default

judgment, which the district court granted. Tucco then filed a writ

of garnishment with notice and pending levy, which the district

court also granted.

¶3 After it learned of the writ, Air Pros moved to set aside the

default judgment for excusable neglect under C.R.C.P. 60(b). Air

Pros argued that because of its rapid growth and national

expansion outside of Florida, it neglected to provide its new email

address to its registered agent, and the agent emailed Tucco’s

complaint to the old email address. Air Pros also claimed it had

meritorious defenses against each of the ten claims Tucco had

raised. In its motion to set aside default judgment, Air Pros denied

that (1) it was Tucco’s subcontractor; (2) Tucco had substantially

performed its work; (3) Air Pros agreed to pay outstanding nonparty

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obligations to Tucco; and (4) Air Pros had any separate fiduciary

duties to Tucco for which it could be liable, except for the trust fund

claims Tucco asserted in its fourth, six, and eighth claims. Lastly,

Air Pros asserted relief from the default judgment was “consistent

with considerations of equity.”

¶4 The district court denied the motion, concluding that Air Pros

had not demonstrated excusable neglect. Air Pros appealed the

decision, and a division of this court reversed and remanded with

directions for the district court to complete the analysis of all three

factors outlined in Goodman Associates, LLC v. WP Mountain

Properties, LLC, 222 P.3d 310 (Colo. 2010). Tucco Home

Improvements LLC v. Air Pros One Source LLC, (Colo. App. No.

22CA2237, Dec. 7, 2023) (not published pursuant to C.A.R. 35(e)).

On remand, the district court again denied the motion on the basis

that Air Pros failed to meet any of the three Goodman factors.

II. Arguments on Appeal and Preservation

¶5 Air Pros contends that the district court erred by denying its

motion to set aside default judgment under Goodman. Air Pros

asserts that the district court (1) misapplied the excusable neglect

standard; (2) ignored its claims of a meritorious defense; and

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(3) failed to consider equitable reasons for setting aside default

judgment.

¶6 Air Pros also contends that the district court focused on

excusable neglect without analyzing whether mistake, inadvertence,

or surprise occurred. But Air Pros did not raise this argument in

the district court. And we do not consider arguments raised for the

first time on appeal. Est. of Stevenson v. Hollywood Bar & Cafe,

Inc., 832 P.2d 718, 721 n.5 (Colo. 1992) (“Arguments never

presented to, considered or ruled upon by a trial court may not be

raised for the first time on appeal.”).

III. Standard of Review and Applicable Law

A. Standard of Review

¶7 Other than an argument that a judgment is void under

C.R.C.P. 60(b)(3), we review orders denying relief from default

judgment for an abuse of discretion. Goodman, 222 P.3d at 314. A

district court abuses its discretion when its decision is manifestly

arbitrary, unreasonable, or unfair. Id. Under this standard, “the

court is not bound to decide an issue one way or another, but,

instead, has the power to choose between two or more courses of

action, each of which is considered a permissible resolution of the

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question.” Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112, 1115

(Colo. 1986).

B. Applicable Law

¶8 In determining whether to grant relief from a default judgment

because of excusable neglect, the trial court must engage in a fact-

intensive, three-part inquiry. Goodman, 222 P.3d at 319. The three

factors that the court must consider are as follows:

(1) whether the neglect that resulted in the 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.

Id. While a failure to satisfy any one of these factors may result in

the denial of a motion to set aside the default judgment, a court

must consider and balance all three factors to determine whether

excusable neglect exists under C.R.C.P. 60(b)(1). Id. at 319-20.

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IV. Analysis

A. Excusable Neglect

¶9 The first Goodman factor requires us to analyze whether the

district court properly considered excusable neglect. Id. at 319. “A

party’s conduct constitutes excusable neglect when the

surrounding circumstances would cause a reasonably careful

person similarly to neglect a duty.” In re Weisbard, 25 P.3d 24, 26

(Colo. 2001) (quoting Tyler v. Adams Cnty. Dep’t of Soc. Servs., 697

P.2d 29, 32 (Colo. 1985)). Common carelessness and negligence do

not amount to excusable neglect. Id. Further, it is a general

principle that oversights do not constitute excusable neglect if they

resulted from such carelessness or negligence. Id. Specifically,

“carelessness and neglect due to poor office procedures and an

apparently overwhelming workload do not justify the failure to

respond to [a] complaint.” Goodman, 222 P.3d at 322.

¶ 10 Failing to update an email address for over two years with the

registered agent that Air Pros selected leans closer to common

carelessness and negligence than excusable neglect. See Colo. Dep’t

of Pub. Health & Env’t v. Caulk, 969 P.2d 804, 809 (Colo. App. 1998)

(“[E]xcusable neglect involves unforeseen circumstances which

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would cause a reasonably prudent person to overlook a required act

in the performance of some responsibility.”). As the district court

correctly stated, the situation was one of Air Pros’ own making and

that decision has legal consequence.

¶ 11 Further, Air Pros did not monitor its former email address for

two years, and Tucco claims it also served Air Pros’ manager,

Dustin Hood. Updating the contact information for a company is

not a singularly unique experience that affected Air Pros during its

corporate restructuring. Such a change in operations is

commonplace and would be expected to encourage even more

attention to detail during the restructuring process.

¶ 12 Thus, we disagree with Air Pros’ claim that the district court

failed to consider and fully evaluate excusable neglect.

B. Meritorious Defense

¶ 13 Air Pros next contends that the district court failed to consider

that Air Pros established a meritorious defense. We disagree.

¶ 14 A party seeking relief from the judgment under Goodman must

also show the existence of a meritorious defense. Dunton v.

Whitewater W. Recreation, Ltd., 942 P.2d 1348, 1351 (Colo. App.

1997). “A movant must support a claim of meritorious defense by

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averments of fact, not simply legal conclusions.” Craig v. Rider, 651

P.2d 397, 403 (Colo. 1982). The factual allegations must be set

forth “with sufficient fullness and particularity to show that a

defense is ‘substantial, not technical; meritorious, not frivolous; and

that [it] may change the result upon trial.’” Id. (citation omitted).

However, the truth of the allegations need not be proven as long as

they are legally sufficient. Goodman, 222 P.3d at 319.

¶ 15 The district court determined that while Air Pros made several

arguments claiming that it had a meritorious defense, none of the

arguments were supported by factual averments. Air Pros primarily

argued that Tucco did not properly complete its work and was not

entitled to full payment. The affidavit Air Pros submitted, however,

focused on the claim that Air Pros did not receive a copy of the

summons and complaint and did not allege facts relating to any of

Air Pros’ defenses.

¶ 16 While Air Pros did not have to prove the truth of its factual

allegations, any asserted meritorious defense still had to be set

forth with sufficient fullness and particularity to satisfy the second

Goodman factor. Air Pros did not do this. We therefore agree with

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the district court’s determination that Air Pros did not present the

factual averments necessary to establish a meritorious defense.

C. Equitable Considerations

¶ 17 Finally, Air Pros contends that the district court “did not

properly consider whether it was equitable to set aside the default

judgment.” Again, we disagree.

¶ 18 When assessing whether equitable considerations warrant

setting aside default judgments, courts should examine the

promptness of the moving party in filing the motion, the fact of any

detrimental reliance by the opposing party on the order, and any

prejudice to the opposing party if the motion were to be granted.

Buckmiller, 727 P.2d at 1116. When analyzing these

considerations, the underlying goal is to promote substantial

justice. Id.

¶ 19 With respect to the third Goodman factor, the only argument

Air Pros presented in its motion to set aside default judgment was

that “[r]elief from the challenged order is consistent with

considerations of equity and the presumption that disputes should

be resolved on the merits, rather than by summary proceedings.”

Instead of developing its argument under the equitable

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consideration criteria, Air Pros presented a conclusory assertion.

We therefore agree with the district court’s determination that Air

Pros’ argument did not weigh in favor of granting relief based on

considerations of equity.

D. Conclusion

¶ 20 The district court properly considered the Goodman factors

and did not abuse its discretion by denying Air Pros’ motion to set

aside the default judgment.

V. Appellate Attorney Fees

¶ 21 Because Tucco failed to provide an adequate legal basis, we

deny its request for appellate attorney fees. See C.A.R. 39.1 (“Mere

citation to . . . a statute, without more, does not satisfy the legal

basis requirement” for attorney fees on appeal.).

VI. Disposition

¶ 22 The district court’s order is affirmed.

JUDGE DUNN and JUDGE TOW concur.

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