Leventhal v. Jensen

24CA1967 Leventhal v Jensen 10-30-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1967
El Paso County District Court No. 23CV32027
Honorable Eric Bentley, Judge

Leventhal Lewis Kuhn Taylor Swan P.C.,

Plaintiff-Appellee,

v.

Kristoffer Odin Jensen and Amanda Michelle Lancaster,

Defendants-Appellants.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE BROWN
Fox and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 30, 2025

Lahti Helfgott LLC, Jonathan A. Helfgott, Denver, Colorado, for Plaintiff-
Appellee

Springer and Steinberg, P.C., Jeffrey A. Springer, Joel A. Richardson, Denver,
Colorado, for Defendants-Appellants
¶1 Defendants, Kristoffer Odin Jensen and Amanda Michelle

Lancaster, appeal the district court’s order entering judgment in

favor of plaintiff, Leventhal Lewis Kuhn Taylor Swan P.C. (the firm).

Defendants contend that the court erred by (1) denying their motion

to dismiss for lack of personal jurisdiction; (2) entering default

against them; (3) denying their motion to set aside default;

(4) denying their request to testify remotely; and (5) awarding the

firm all requested damages, including treble damages. We affirm.

I. Background

¶2 The firm is a Colorado-based law firm. Defendants are

attorneys who reside in Alaska. In early 2023, defendants agreed to

open a branch office of the firm in Anchorage, Alaska, but the

parties’ relationship deteriorated quickly. By August, defendants

decided to terminate their affiliation with the firm. In October, the

firm sued defendants in Colorado for civil theft, conversion, unjust

enrichment, constructive fraud, civil conspiracy, violation of the

Colorado Organized Crime Control Act (COCCA), breach of duty of

loyalty, misappropriation of business advantage, breach of contract,

declaratory relief, and accounting.

1
¶3 More than three weeks beyond their deadline to respond to the

complaint, and after the firm first moved for entry of clerk’s default,

defendants filed a C.R.C.P. 12(b)(2) motion to dismiss for lack of

personal jurisdiction. The district court denied the firm’s request

for entry of default as moot and considered the defendants’

untimely motion but nevertheless denied it on February 1, 2024.

When defendants failed to timely file an answer following the court’s

order, the firm again moved for entry of default. The court granted

the motion on March 20.

¶4 On April 1, forty-six days late, Lancaster filed an untimely

answer that substantively stated, in its entirety: “(1) - (11) Denial of

all [c]laims and damages.” The firm moved for entry of default

judgment and requested a hearing on damages. Lancaster filed a

motion to set aside entry of default. The court denied the motion

and set a damages hearing. At that hearing, the court ruled orally

and awarded the firm damages, including treble damages, totaling

$379,711.47. The court incorporated its oral ruling into a written

judgment entered the same day.

2
II. Personal Jurisdiction

¶5 Defendants contend that the district court erred by denying

their C.R.C.P. 12(b)(2) motion to dismiss and exercising personal

jurisdiction over them. We disagree.

A. Standard of Review

¶6 We review de novo whether a trial court has personal

jurisdiction over a party. Giduck v. Niblett, 2014 COA 86, ¶ 11. We

also review de novo a court’s ruling without a hearing on a C.R.C.P.

12(b)(2) motion to dismiss. Align Corp. Ltd. v. Boustred, 2017 CO

103, ¶ 8.

¶7 When a court decides a C.R.C.P. 12(b)(2) motion on the

documentary evidence alone, the plaintiff need only make a prima

facie showing of personal jurisdiction. Archangel Diamond Corp. v.

Lukoil, 123 P.3d 1187, 1192 (Colo. 2005). That burden is satisfied

when “the plaintiff raises a reasonable inference that the court has

jurisdiction over the defendant.” Id. “The purpose of the light

prima facie burden of proof at this early stage of litigation is simply

to screen out ‘cases in which personal jurisdiction is obviously

lacking, and those in which the jurisdictional challenge is patently

3
bogus.’” Id. (quoting Foster-Miller, Inc. v. Babcock & Wilcox Can., 46

F.3d 138, 145 (1st Cir. 1995)).

¶8 In resolving the motion, the court must accept as true the

allegations in the complaint and the affidavits or other evidence

submitted by the plaintiff unless contradicted by competent

evidence submitted by the defendant. Goettman v. N. Fork Valley

Rest., 176 P.3d 60, 66 (Colo. 2007). If the parties submit conflicting

competent evidence, any discrepancies must be resolved in favor of

exercising jurisdiction. Id.

B. Law Governing Personal Jurisdiction

¶9 “For a Colorado court to exercise jurisdiction over a

non-resident defendant, the court must comply with Colorado’s

long-arm statute and constitutional due process.” Align Corp. Ltd.,

¶ 9; see also § 13-1-124, C.R.S. 2025. Colorado’s long-arm statute

extends the state’s jurisdiction to the maximum limit permitted by

the Due Process Clauses of the United States and Colorado

Constitutions. Goettman, 176 P.3d at 67. Thus, if the

constitutional requirements are satisfied, the long-arm statute is

also satisfied. Found. for Knowledge in Dev. v. Interactive Design

Consultants, LLC, 234 P.3d 673, 677 (Colo. 2010).

4
¶ 10 Due process requires that a defendant have “certain minimum

contacts with the forum state so that he may foresee being

answerable in court there.” Archangel, 123 P.3d at 1194. The

quantity and quality of the contacts required for a court to exercise

personal jurisdiction depends on whether a plaintiff alleges general

or specific jurisdiction. Goettman, 176 P.3d at 67. Here, the firm

alleged specific jurisdiction. To assess whether a nonresident

defendant has sufficient minimum contacts to justify the exercise of

specific personal jurisdiction, a court must assess whether (1) the

defendant “‘purposefully directed’ its activities at residents of the

forum state,” and (2) “the plaintiff’s injuries . . . ‘arise out of or

relate to’ the defendant’s forum-related activities.” State ex rel.

Weiser v. JUUL Labs, Inc., 2022 CO 46, ¶ 37 (quoting Burger King

Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)).

¶ 11 Once a court is satisfied that a defendant has the requisite

minimum contacts with the forum state, these contacts must be

separately analyzed “to determine whether the assertion of personal

jurisdiction would comport with fair play and substantial justice.”

Archangel, 123 P.3d at 1195 (quoting Keefe v. Kirschenbaum &

Kirschenbaum, P.C., 40 P.3d 1267, 1271 (Colo. 2002)). Factors a

5
court examines include “the burden on the defendant, the forum

state’s interest in resolving the controversy, and the plaintiff’s

interest in attaining effective and convenient relief.” Id. Ultimately,

the inquiry turns on whether the exercise of personal jurisdiction is

reasonable under the circumstances surrounding the case. Id.

C. Additional Background

¶ 12 In its complaint, the firm asserted contract and tort-based

claims against defendants. It alleged that the district court had

personal jurisdiction over defendants because they transacted

business within Colorado and committed tortious acts expressly

aimed at Colorado with the knowledge that those acts would cause

injuries in the state. In opposing defendants’ motion to dismiss, the

firm submitted a declaration from shareholder Michael D. Kuhn.

Collectively, the complaint and declaration alleged the following

relevant facts, which we presume are true for purposes of analyzing

personal jurisdiction.

¶ 13 In early 2023, Jensen initiated discussions with a firm

shareholder about joining the firm because he and Lancaster were

planning to leave their employment. The parties had a series of

discussions by phone and email exploring the prospect of

6
defendants opening an Anchorage office for the firm. In March,

defendants came to Colorado and had lengthy meetings spanning

two days to negotiate the terms that would govern their business

relationship. Although defendants prepared and submitted a

proposed term sheet while they were in Colorado, they did not sign

a contract at that time. The parties eventually opened a branch

office in Anchorage.

¶ 14 The firm “incurred extraordinary costs and obligations to bring

the firm’s Anchorage office into fruition.” The firm and defendants

jointly signed a commercial lease for office space in Anchorage.

Defendants used the firm’s money to buy furniture, appliances,

artwork, technology, marketing services, and web design. And the

firm purchased a premier sponsorship to increase its visibility in

the region.

¶ 15 The firm maintained a JPMorgan Chase Bank account through

the Colorado Springs branch. Because Chase Bank did not have a

branch in Alaska, however, the firm set up a KeyBank account

there to deposit unearned funds for its Alaskan clients and to

transfer money to the Chase Bank account. Defendants made

“thousands of dollars in cash withdrawals” from the KeyBank

7
account that “have not been justified.” The firm also gave

defendants credit cards linked to the Chase Bank account, and

defendants “made numerous charges on these cards, including

certain unauthorized and unreimbursed charges.” Defendants sent

client invoices through the firm’s billing system, and when clients

paid those invoices, funds were deposited into the firm’s Chase

Bank account. The firm also paid defendants’ income by electronic

transfer or check from the Chase Bank account in Colorado.

¶ 16 Within a few months, it became clear to the firm that

defendants’ “[p]rofligate spending, lack of legal experience, subpar

work, poor organization, and untrained administrative skills were

inconsistent with the [f]irm’s reputation.” In August, defendants

decided to terminate their relationship with the firm and announced

they would be opening their own firm. The firm sent defendants a

written summary of terms and conditions for closing the Anchorage

office, which noted that their affiliation would end by September 4.

Defendants did not substantively respond.

¶ 17 After the firm sent the closing letter, defendants’ billings “fell

dramatically” because they were “slow billing” clients to avoid

paying commissions to the firm. “Lancaster made hundreds of

8
dollars of personal purchases with [f]irm assets,” and defendants

spent firm assets “to acquire supplies for their new business

venture.” Defendants “misappropriated funds” owed to the firm

under a municipal contract in Alaska. Then, in September, Jensen

“illegally withdrew over $10,000 in cash from [the firm’s] KeyBank

operating account . . . with the express approval of, if not an

outright request by” Lancaster.

¶ 18 Defendants filed a C.R.C.P. 12(b)(2) motion to dismiss for lack

of personal jurisdiction. Although defendants disputed many of the

facts the firm alleged in the complaint, they did not verify the

motion or submit affidavits or other competent evidence to

contradict those facts.

D. Minimum Contacts

¶ 19 The firm sufficiently alleged that defendants “purposefully

availed [themselves] of the privilege of conducting business in the

forum state,” Found. for Knowledge in Dev., 234 P.3d at 678

(quoting Archangel, 123 P.3d at 1194), by pursuing a relationship

with a firm they knew was based in Colorado, negotiating the terms

of the business relationship in Colorado, communicating with the

firm through emails and calls, representing clients who made

9
payments to the firm in Colorado, and maintaining a business

relationship with the firm for several months. Defendants’ actions,

when considered in the aggregate, make a prima facie showing that

defendants purposefully directed their business activities at

Colorado. See Benton v. Cameco Corp., 375 F.3d 1070, 1076 (10th

Cir. 2004) (a defendant purposefully directed its activities at

Colorado when the contract was entered into with a Colorado

resident, defendant would have been required to make payments in

Colorado, defendant sent representatives to Colorado to conduct

due diligence, and defendant sent significant correspondence to

plaintiff in Colorado); see also Found. for Knowledge in Dev., 234

P.3d at 679 (a defendant purposefully directed his activities at

Colorado when he contracted with a Colorado public charity, he

traveled to Colorado numerous times, he communicated by email

and telephone with the business, the plaintiff signed the agreement

in Colorado, and the program was developed in Colorado); cf. New

Frontier Media, Inc. v. Freeman, 85 P.3d 611, 614-15 (Colo. App.

2003) (defendants did not have sufficient contacts with Colorado

when they did not enter Colorado, plaintiff initiated the transaction

out of state, due diligence was conducted out of state, the assets to

10
be purchased were out of state, the letter of interest was signed out

of state, and no activities were required in Colorado).

¶ 20 The firm also sufficiently alleged that defendants intentionally

committed tortious acts directed at Colorado knowing that the

brunt of the injury would be felt in Colorado, see JUUL Labs, ¶ 40,

by illegally withdrawing $10,000 in cash from an account owned by

the Colorado-based firm, misappropriating funds from a municipal

contract due to the firm, undermining the firm’s billing, retaining

funds they were obligated to pay the firm, and using credit cards

connected to a Colorado bank account for unauthorized purchases.

See Found. for Knowledge in Dev., 234 P.3d at 681 (a defendant’s

tortious conduct was purposefully directed at Colorado when he

knew he was negotiating with a corporation headquartered in

Colorado, he understood those communications would be received

in Colorado, and the corporation suffered the injury in Colorado).

¶ 21 Citing Far West Capital, Inc. v. Towne, 46 F.3d 1071, 1076

(10th Cir. 1995), defendants argue that withdrawing money from

the KeyBank account in Alaska was insufficient to establish that

they purposefully directed their actions at Colorado. Defendants

similarly point to Wenz v. Memery Crystal, 55 F.3d 1503, 1507-08

11
(10th Cir. 1995), in which a plaintiff alleged that defendants in

London, England, illegally disbursed his money after he sent that

money to London. But unlike Far West Capital and Wenz,

defendants’ withdrawal of money in Alaska was not the only

allegation supporting the tort claims. Defendants also slow billed

clients, retained funds due to the firm, and used credit cards linked

to the firm’s Colorado account. When defendants’ conduct is

viewed in the aggregate, it satisfies the firm’s burden to make a

prima facie showing of minimum contacts. See Found. for

Knowledge in Dev., 234 P.3d at 681.

¶ 22 Finally, it is undisputed that the business relationship

between the parties and defendants’ tortious conduct gave rise to

the litigation. See JUUL Labs, ¶ 35. Accordingly, we conclude that

the firm made a prima facie showing that defendants had sufficient

minimum contacts to justify the district court’s exercise of personal

jurisdiction. Id.

E. Reasonableness

¶ 23 In their opening brief, defendants contend that the district

court’s exercise of jurisdiction over them was unreasonable because

they were “severely prejudiced by being forced to litigate in

12
Colorado . . . in the absence of any countervailing considerations.”

They do not explain the claimed prejudice or how that prejudice

outweighed any countervailing considerations. They only

generically cite International Shoe Co. v. Washington, 326 U.S. 310,

316 (1945). And we reject their attempt to expand upon this

argument in their reply brief. See In re Marriage of Dean, 2017 COA

51, ¶ 31 (declining to consider arguments made in a reply brief that

expanded upon contentions raised in an opening brief). Because

defendants failed to develop this argument, we do not consider it

further. See S. Colo. Orthopaedic Clinic Sports Med. & Arthritis

Surgeons, P.C. v. Weinstein, 2014 COA 171, ¶ 35 (declining to

address conclusory argument presented without authority); Barnett

v. Elite Props. of Am., Inc., 252 P.3d 14, 19 (Colo. App. 2010)

(Appellate courts “will not consider a bald legal proposition

presented without argument or development.”).

13
¶ 24 We conclude that the district court did not err by denying

defendants’ C.R.C.P. 12(b)(2) motion to dismiss and exercising

specific personal jurisdiction over defendants.1

III. Setting Aside the Entry of Default

¶ 25 Defendants contend that the district court erroneously denied

their motion to set aside default2 by (1) concluding that defendants

failed to demonstrate good cause; (2) entering default as a sanction;

(3) denying any relief as to Jensen; and (4) “disregarding”

1 To the extent defendants contend that the district court should

have held a hearing on their C.R.C.P. 12(b)(2) motion, we reject that
contention. First, defendants never requested a hearing and thus
waived that argument. See In re Estate of Ashworth, 2024 CO 39,
¶ 20 n.3. Second, they offered no evidence, competent or otherwise,
that conflicted with the facts the firm alleged to support the exercise
of personal jurisdiction, so the court was not required to hold a
hearing. See Archangel Diamond Corp. v. Lukoil, 123 P.3d 1187,
1193 (Colo. 2005) (an evidentiary hearing is only necessary “when
the proffered evidence is conflicting and the record is rife with
contradictions, or when a plaintiff’s affidavits are patently
incredible” (quoting Foster-Miller, Inc. v. Babcock & Wilcox Can., 46
F.3d 138, 145 (1st Cir. 1995))).
2 The motion also sought to set aside default judgment and

damages, but the district court had not yet entered default
judgment or awarded damages.

14
Lancaster’s argument that she was protected by the

Servicemembers Civil Relief Act (SCRA).3 We perceive no error.

A. Generally Applicable Law and Standard of Review

¶ 26 Default judgment occurs in two steps: (1) entry of default by

the clerk and (2) entry of default judgment by the court. Ferraro v.

Frias Drywall, LLC, 2019 COA 123, ¶ 11; C.R.C.P. 55(a). “When a

party against whom a judgment for affirmative relief is sought has

failed to plead or otherwise defend as provided by these rules and

that fact is made to appear by affidavit or otherwise, the clerk shall

enter his default.” C.R.C.P. 55(a). An entry of default “accepts the

complaint’s allegations and establishes the defendant’s liability, but

it does not establish damages.” Ferraro, ¶ 11. After the entry of

default, the court then determines damages and enters a default

judgment. Id. at ¶ 12.

3 Defendants also contend that the district court erred by failing to

provide them an opportunity to respond to the firm’s motion under
C.R.C.P. 121, section 1-15, and by entering default when they had
otherwise appeared under C.R.C.P. 55(a) by filing a motion to
dismiss. We decline to address these arguments because
defendants did not make them to the district court. See Gebert v.
Sears, Roebuck & Co., 2023 COA 107, ¶ 25 (“In civil cases,
arguments never presented to, considered by, or ruled upon by a
district court may not be raised for the first time on appeal.”).

15
¶ 27 Under C.R.C.P. 55(c), a court may set aside entry of default

“[f]or good cause shown.” When considering whether a defaulting

party has demonstrated good cause, a trial court should consider

whether (1) the neglect that resulted in entry of default was

excusable; (2) the moving party alleged a meritorious claim or

defense; and (3) relief from the challenged order would be consistent

with considerations of equity. Buckmiller v. Safeway Stores, Inc.,

727 P.2d 1112, 1116 (Colo. 1986); see also Singh v. Mortensun, 30

P.3d 853, 855 (Colo. App. 2001) (the factors to be considered in

setting aside the entry of default are substantially the same as the

factors to be considering in setting aside a default judgment (citing

Buckmiller, 727 P.2d at 1116)). These factors are to be “flexibly

applied and liberally interpreted.” Singh, 30 P.3d at 855.

¶ 28 For the first factor, a party’s conduct must show more than

“[c]ommon carelessness and negligence.” Goodman Assocs., LLC v.

WP Mountain Props., LLC, 222 P.3d 310, 319 (Colo. 2010). The

circumstances surrounding the neglect should involve “unforeseen

circumstances which would cause a reasonably prudent person to

overlook a required act in the performance of some responsibility.”

Id. (citation omitted). To satisfy the second factor, a party must

16
support the asserted meritorious defense with factual allegations,

not just legal conclusions. Id. For the third factor, a court should

consider the promptness of the motion, any detrimental reliance by

the opposing party on the entry of default, the prejudice to the

opposing party if the motion were to be granted, and the prejudice

to the moving party if the motion were to be denied. Id.

¶ 29 We review a court’s interpretation of the rules of civil

procedure de novo. Home Improvement, Inc. v. Villar, 2022 COA

129, ¶ 12. But we review a trial court’s decision to grant or deny a

motion to set aside a clerk’s entry of default for an abuse of

discretion. Ferraro, ¶ 10. A court abuses its discretion when its

decision is manifestly arbitrary, unreasonable, or unfair, or when it

misapplies the law. Id. Whether to set aside an entry of default “is

at its core an equitable decision.” Goodman, 222 P.3d at 319. The

court must consider and weigh each factor, but a failure to satisfy

any one factor may result in the denial of a motion to set aside the

entry of default. Id. at 320.

B. The District Court Properly Entered Default

¶ 30 As an initial matter, to the extent that defendants contend the

district court’s entry of default was improper, we disagree.

17
¶ 31 A defendant initially has thirty-five days to file an answer or

otherwise respond after service of a summons and complaint

outside of Colorado. C.R.C.P. 12(a)(2).4 But once the district court

denies a C.R.C.P. 12 motion, “the responsive pleadings shall be filed

within [fourteen] days after notice of the court’s action.” C.R.C.P.

12(a)(1)(A).

¶ 32 Defendants were served with the court’s order denying their

C.R.C.P. 12(b)(2) motion to dismiss on February 1, 2024. See

C.R.C.P. 5(b)(2)(B) (“Service by mail is complete on mailing[.]”).

Consequently, defendants’ deadline to file an answer was February

15.5 Lancaster filed a one-line answer on April 1. Although the

answer was purportedly filed on behalf of “Kris Kensen [sic] and

Amanda Lancaster,” Jensen did not sign it. Thus, Jensen never

filed an answer. See C.R.C.P. 11(a) (“A party who is not represented

4 Defendants do not contest that they were properly and personally

served with the summons and complaint. See C.R.C.P. 4.
5 Defendants assert that they did not receive the district court’s

order denying their motion until February 23. Even assuming that
date triggered the deadline to respond — and it does not —
defendants’ deadline to answer would have been March 8.

18
by an attorney shall sign his pleadings and state his address.”).6

Because defendants failed to file a timely answer, the district court

properly entered default. See C.R.C.P. 12(a)(1)(A); C.R.C.P. 55(a).

C. Good Cause

¶ 33 Defendants contend the district court abused its discretion by

concluding that defendants failed to demonstrate good cause for

setting aside the entry of default. We are not persuaded.

1. Excusable Neglect

¶ 34 Defendants contend that their neglect in failing to timely file

an answer was excusable because (1) they were not properly served

at their last known address; (2) delays in the mail hindered their

ability to timely answer; and (3) they believed they had thirty-five

days to file their answer. None of these reasons demonstrates

excusable neglect.

a. Last Known Address

¶ 35 Defendants first contend that they were not served the district

court’s order denying their motion to dismiss at their “last known

6 Although defendants are lawyers, they initially appeared in the

case as unrepresented parties, were briefly represented by counsel
from June 25 to July 25, 2024, and then were unrepresented
throughout the remaining proceedings.

19
address” as required by C.R.C.P. 5(b)(2), rendering service invalid

and ineffective to trigger their deadline to answer.7 Citing no

authority, defendants argue that the “last known address” is the

address listed on a party’s pleading, and the only address that was

ever listed on defendants’ pleadings was their business address.

¶ 36 The Colorado Rules of Civil Procedure do not define “last

known address,” but a division of this court looked to dictionary

definitions of the words to define the phrase for purposes of

C.R.C.P. 4(g). Villar, ¶¶ 16-17; see also Hiner v. Johnson, 2012 COA

164, ¶ 13 (we interpret rules of procedure by affording the words

their plain and ordinary meaning). Ultimately, the division defined

“address” as “the place at which a party generally recognizes that

another party can be communicated with” and “last known address”

as “the most recent such place.” Villar, ¶ 17. We agree with the

7 To the extent defendants argue their delay in filing an answer was

excusable because the firm failed to serve the motion for entry of
default at defendants’ “last known address,” that argument misses
the mark for two reasons. First, the firm did not have to file a
motion for entry of default; C.R.C.P. 55(a) plainly directs that the
clerk “shall” enter default when a party “has failed to plead or
otherwise defend” without being prompted by a motion. Second,
the motion for default did not trigger defendants’ answer deadline;
the district court’s order denying defendants’ C.R.C.P. 12(b)(2)
motion to dismiss was the trigger. See C.R.C.P. 12(a)(1).

20
Villar division’s definition and with its conclusion that the definition

“comports with due process.” Id.

¶ 37 The district court’s order denying defendants’ C.R.C.P. 12(b)(2)

motion to dismiss was served by mail on Lancaster at an address

on Quesada Avenue and on Jensen at an address on Kaskanak

Drive (residential addresses). The firm listed these residential

addresses in the summonses served on defendants when the

lawsuit commenced. It is reasonable to infer that the residential

addresses were the most recent places at which the firm recognized

it could communicate with defendants.8

¶ 38 Defendants have never disputed that the residential addresses

belonged to them and were addresses at which they could be

communicated with, nor did they offer evidence that they did not

receive the orders and other documents sent to those addresses.9

8 Indeed, the Quesada address was listed on a check the firm sent

Lancaster reimbursing her for authorized expenditures incurred in
opening the Anchorage office.
9 To the extent the motion to set aside default asserted that Jensen

had “never been served a filing in this case” or “been served or sent
any correspondence regarding orders from the [c]ourt,” we note that
Jensen did not sign the motion, see C.R.C.P. 11(a), and defendants
provided no evidence to support that broad claim. And despite the
statement in the motion that defendants provided affidavits to
establish the lack of notice, no such affidavits were filed.

21
The court file does not include any returned mail sent to the

residential addresses. In fact, Lancaster admitted receiving the

court’s order denying the C.R.C.P. 12(b)(2) motion, albeit after some

delay. And although Lancaster asserted that she repeatedly asked

to be served at her business address, she pointed to nothing in the

record — nor can we find anything — where such a request was

made before default entered.

¶ 39 That defendants may have preferred service at a different

address does not mean service was invalid. Because C.R.C.P.

5(b)(2)(B) authorizes service at the “last known address,” we decline

to impose additional requirements for such service. See Spahmer v.

Gullette, 113 P.3d 158, 162 (Colo. 2005) (“We will not create an

22
addition to a statute that the plain language does not suggest or

demand.”).10

¶ 40 We also reject defendants’ reliance on People v. Buscarello, in

which an attorney sent a motion to dismiss to a different address

than the one on the pleadings. 706 P.2d 805, 806 (Colo. App.

1985). Buscarello applied the 1985 version of C.R.C.P. 5(b), which

required that “[s]ervice upon the attorney or upon a party shall be

made by delivering a copy to [them] or by mailing it to [them] at

[their] address as given in the pleadings.” (Emphasis added.) Under

10 We recognize that the district court clearly erred when it found

that (1) the firm had served defendants with the motion for entry of
default at their business address and (2) the business address had
always been the address on file with the court. The firm’s certificate
of service clearly lists the residential addresses, and nothing in the
record shows that the court had defendants’ business address on
file as the address for service. See Whiting-Turner Contracting Co. v.
Guarantee Co. of N. Am. USA, 2019 COA 44, ¶ 36 (“A factual finding
is clearly erroneous if nothing in the record supports it.”). However,
any error was harmless because the motion for entry of default was
not the event that triggered defendants’ deadline to file an answer,
see C.R.C.P. 12(a)(1)(A), and defendants were served with the
court’s order denying their motion to dismiss at an appropriate “last
known address,” C.R.C.P. 5(b)(2)(B). See Walker v. Ford Motor Co.,
2017 CO 102, ¶ 21 (“This court will deem an error harmless, and
thus will not reverse a judgment, unless the error resulted in
substantial prejudice to a party.”).

23
the current version of C.R.C.P. 5(b)(2)(B), service by mailing a copy

to a party’s “last known address” suffices.

¶ 41 Similarly, we reject defendants’ reliance on First National Bank

of Telluride v. Fleisher, in which the Colorado Supreme Court

vacated the trial court’s default judgment because the court’s order

triggering the defaulting party’s obligation to respond was

(apparently undisputedly) mailed to the wrong address and the

party received no notice, in violation of due process. 2 P.3d 706,

709, 712-15 (Colo. 2000). Unlike Fleisher, the district court’s order

was not sent to the “wrong address,” and defendants received

actual notice, as evidenced by their intermittent participation in the

litigation. See In re Estate of Ongaro, 998 P.2d 1097, 1105 (Colo.

2000) (actual notice satisfies due process requirements of notice

and an opportunity to participate).11

11 To the extent defendants attempt to raise a due process

challenge, it is undeveloped, and we decline to address it. See S.
Colo. Orthopaedic Clinic Sports Med. & Arthritis Surgeons, P.C. v.
Weinstein, 2014 COA 171, ¶ 35; Barnett v. Elite Props. of Am., Inc.,
252 P.3d 14, 19 (Colo. App. 2010).

24
b. Mail Delays

¶ 42 Defendants next contend that their delay in filing an answer

was excusable because of delays in the mail. Even assuming that

mail delays are the reason Lancaster did not receive the district

court’s order denying defendants’ motion to dismiss until February

23, 2024, as she claimed, mail delays do not explain why she

waited another thirty-eight days to file a one-line answer.

¶ 43 Recall that the court did not enter default until March 20,

almost a month after Lancaster said she received the order.

Lancaster signed the answer on March 26, and it was accepted for

filing by the court just six days later. Had she signed and mailed

the answer for filing shortly after she received the court’s order, it is

reasonable to presume that the court would have received it long

before entering default. Without further explanation, defendants

have failed to show that delays in the mail were an “unforeseen

circumstance” that would excuse their neglect. Goodman, 222 P.3d

at 319; see also Ford v. Henderson, 691 P.2d 754, 756 (Colo. App.

1984) (affirming a trial court’s conclusion that a party’s reliance

upon the postal service to timely deliver mail does not constitute

excusable neglect).

25
c. Deadline to File

¶ 44 Finally, defendants argue that they believed they had

thirty-five days after receiving the district court’s order to file an

answer because the summonses indicated they had thirty-five days

“to file [an] answer or other response” if they were served outside of

Colorado. But the deadline in the summonses was the deadline for

defendants to file some initial response to the complaint.

Defendants elected to file a motion to dismiss, albeit well beyond

the thirty-five-day deadline. Once the court denied defendants’

motion, they had fourteen days to file an answer. C.R.C.P.

12(a)(1)(A).

¶ 45 Regardless of whether the court’s order included the answer

deadline, even unrepresented parties are bound by the rules of civil

procedure. Cornelius v. River Ridge Ranch Landowners Ass’n, 202

P.3d 564, 572 (Colo. 2009). And these unrepresented parties were

licensed attorneys in Alaska. Defendants’ failure to follow the rules

does not excuse their untimely answer. See id.; Adams v. Sagee,

2017 COA 133, ¶ 3 n.1 (“[T]he law is clear that mistake or

ignorance of the law doesn’t constitute excusable neglect.” (citing

Goodman, 222 P.3d at 321-22)).

26
¶ 46 We conclude that the district court did not err by concluding

that defendants did not demonstrate excusable neglect. See

Goodman, 222 P.3d at 319.

2. Meritorious Defense

¶ 47 Defendants next contend that they presented a meritorious

defense because their motion to set aside default and associated

reply incorporated the factual allegations contained in their motion

to dismiss. But the motion and reply belie this contention.

¶ 48 The motion does not incorporate the motion to dismiss or any

of its content. In the section of the motion discussing a meritorious

defense, it merely states “[t]he [d]efendant’s [sic] affidavits are taken

as testimony as to the facts of the case as they know them,” but

defendants did not submit any affidavits with their motion. And

although a party may not raise new arguments for the first time in a

reply, the reply to the motion to set aside default also fails to

incorporate the motion to dismiss. All it says is that “[a] threshold

issue the court will need to address in a separate pleading is

whether there is a source for remedy, such as a contract (which to

date has not been presented by [the firm]).” Merely flagging for the

court that it must determine whether a contract exists to resolve a

27
breach of contract claim does not reflect any theory of defense.

Defendants failed entirely to alleged a meritorious defense. See id.

3. Equitable Considerations

¶ 49 Lastly, defendants argue that equitable considerations should

have resulted in the district court setting aside the entry of default.

Defendants point out that they promptly filed the motion to set

aside default, and the firm suffered no prejudice beyond having to

prove its case. We are not persuaded.

¶ 50 The court found that Lancaster’s “relative promptness” in filing

the motion to set aside default “would weigh heavily in her favor

and could, by itself, be decisive,” “under most circumstances.” But

two facts “weighed against that” here: (1) Lancaster is an attorney

who should understand the applicable rules and deadlines, and

(2) she “casually and contemptuously ignored all deadlines and

rules and failed even to begin to engage with the merits of the case.”

True, the court did not analyze the prejudice, or lack thereof, to the

firm. But because failure to satisfy even one factor may justify

denying a request to set aside the entry of default, and because

defendants wholly failed to show excusable neglect or allege a

28
meritorious defense, we perceive no error in how the court weighed

the equities. See id. at 320.

¶ 51 We conclude that the district court did not abuse its discretion

by determining that defendants failed to demonstrate good cause to

set aside the entry of default. See Ferraro, ¶ 10.

D. Sanction

¶ 52 Defendants also contend that the district court erroneously

entered default against them as a sanction. We reject this

argument. It is apparent from the court’s order denying defendants’

motion to set aside default that it did not enter default as a

sanction but because defendants failed to timely file an answer.

And it refused to set aside the default because defendants failed to

demonstrate good cause.

E. Relief as to Jensen

¶ 53 Defendants contend that the district court erred by

considering the motion to set aside default as not having been filed

by Jensen because he did not sign it. As an unrepresented party,

Jensen was required to sign any pleading he filed with the court.

C.R.C.P. 11(a). He did not sign the answer or the motion to set

aside default purportedly filed on his behalf. Thus, we perceive no

29
error in the court’s analysis. But even assuming the court should

have considered the reply Jensen signed as his affirmative motion

to set aside default, any error was necessarily harmless because we

have concluded that the court did not abuse its discretion by

denying the motion (and reply) on the merits. See Walker v. Ford

Motor Co., 2017 CO 102, ¶ 21.

F. Servicemembers Civil Relief Act

¶ 54 Lancaster contends that the district court erred by

“disregarding” her argument that § 3931 of the SCRA applied and

by failing to investigate her military status further when she

claimed to be protected by the SCRA. But the court did not

disregard her argument; it concluded that the SCRA did not apply.

We affirm that conclusion, albeit on different grounds. See Laleh v.

Johnson, 2017 CO 93, ¶ 24 (an appellate court can affirm a trial

court’s order on any ground supported by the record, whether relied

upon or even considered by the trial court).

¶ 55 First, § 3931 of the SCRA, titled “Protection of servicemembers

against default judgments,” applies in any civil case when a

defendant has failed to make an appearance. 50 U.S.C. § 3931(a).

Lancaster did not fail to appear — she filed a motion to dismiss.

30
See Rouse v. Moore, 724 F. Supp. 3d 410, 421 (D. Md. 2024)

(explaining that § 3931 obligates courts to ensure servicemembers

are protected when they have not appeared); Martin v. Indianapolis

Morris Plan Corp., 400 N.E.2d 1173, 1176 (Ind. Ct. App. 1980)

(when defendant appeared by filing a motion for preferred venue,

the SCRA’s requirement for an affidavit showing the defendant was

not in the military service did not apply).

¶ 56 Second, the affidavit requirement Lancaster contends was not

satisfied applies to protect military personnel against default

judgment, not entry of default. See Interinsurance Exch. v. Collins,

37 Cal. Rptr. 2d 126, 127 (Ct. App. 1994) (“Congress sought to

protect military personnel not from defaults, but from default

judgments.”). Indeed, the plain language of the statute confirms as

much when it provides that, “before entering judgment for the

plaintiff,” the court shall require the plaintiff to file an affidavit

stating (1) whether or not the defendant is in the military and

showing the necessary facts to support the affidavit or (2) that the

plaintiff cannot determine whether the defendant is in military

service. 50 U.S.C. § 3931(b)(1) (emphasis added). The firm’s

31
alleged failure to file an SCRA-compliant affidavit provides no

grounds for setting aside the entry of default.

¶ 57 Even so, the firm complied with the affidavit requirement when

moving for default judgment. It submitted a declaration from Kuhn

stating that Jensen was not in the military and that Lancaster had

not actively served in the military in the last 367 days. The

declaration attached a report from the Department of Defense

reflecting Lancaster’s status. The affidavit requirement is “satisfied

by a statement, declaration, verification, or certificate, in writing,

subscribed and certified or declared to be true under penalty of

perjury.” 50 U.S.C. § 3931(b)(4); see Mulligan Funding LLC v.

Tommy Interior Contracting Corp., 765 F. Supp. 3d 201, 214

(E.D.N.Y. 2025) (plaintiff complied with the SCRA by filing a report

indicating the defendant was not on active duty at the time of

default); cf. Sprinkle v. SB&C Ltd., 472 F. Supp. 2d. 1235, 1245-47

(W.D. Wash. 2006) (concluding that debt collectors violated the

SCRA by failing to file the requisite affidavit when the debtor was on

active military duty). The district court correctly concluded that the

SCRA provides Lancaster no relief from the entry of default.

32
IV. Motion to Testify Remotely

¶ 58 Defendants next contend that the district court erred by

denying their motion to testify remotely at the damages hearing

based on a “strict application” of the Colorado Rules of Civil

Procedure.12 We are not persuaded.

¶ 59 Under C.R.C.P. 43(i)(1), a party may request permission to

present testimony remotely. Such a request must be made by

written motion “as soon as practicable after the need for absentee

testimony becomes known,” and it must include, as relevant here,

“[t]he reason(s) for allowing such testimony” and “[a] detailed

description of all testimony which is proposed to be taken.”

C.R.C.P. 43(i)(1)(A)-(B). The court shall determine whether remote

testimony may be allowed “in the interest of justice” after

considering several nonexhaustive factors, including whether there

is a statutory right to absentee testimony. We review a trial court’s

decision whether to allow remote testimony for an abuse of

discretion. People in Interest of M.W., 2022 COA 72, ¶ 12.

12 To the extent defendants argue that the district court erred by

denying their motion to continue the hearing and to disqualify the
judge, they do not develop those arguments, so we decline to
address them. See Weinstein, ¶ 35; Barnett, 252 P.3d at 19.

33
¶ 60 The district court denied defendants’ motion to testify remotely

“for failure to comply with the requirements of C.R.C.P. 43(i),”

including the requirements to file as soon as practicable and to

provide a detailed description of the proposed testimony.

Defendants make no attempt to justify their noncompliance with

the rule’s filing requirements. Instead, although they acknowledge

that the court generally has discretion to permit or deny remote

testimony under C.R.C.P. 43, they argue that the court’s discretion

was displaced by C.R.C.P. 55, which they say requires the court to

conduct a hearing at which the defaulting party may

“cross-examine witnesses and present mitigating evidence.”13

¶ 61 It is true that a court’s discretion to determine whether the

interests of justice require the acceptance of absentee testimony

under C.R.C.P. 43(i) may be displaced by a statutory mandate to

allow such testimony. See, e.g., People in Interest of S.C., 2020 COA

13 Notably, the district court did not deny defendants the ability to

participate remotely, it simply denied them the opportunity to testify
remotely. Lancaster participated remotely, including by
cross-examining the firm’s witness, presenting exhibits, and making
a closing argument. Jensen was present remotely for a portion of
the hearing but did not participate, so the court did not allow him
to make a closing argument.

34
95, ¶¶ 17-18 (trial court’s discretion under C.R.C.P. 43 was

displaced by section 14-5-316(a), (f), C.R.S. 2025, which requires a

court to permit a party residing out of state to testify remotely in a

proceeding under the Uniform Interstate Family Support Act). But

C.R.C.P. 55 is not a statute, and it does not require a court to

permit remote testimony; it provides only that “[i]f the party against

whom judgment by default is sought has appeared in the action,

the party . . . shall be served with written notice of the application

for judgment at least [seven] days prior to the hearing on such

application.” C.R.C.P. 55(b)(1). The court gave defendants notice

and an opportunity to meaningfully participate in the hearing. Cf.

Kwik Way Stores, Inc. v. Caldwell, 745 P.2d 672, 679 (Colo. 1987)

(when the trial court refused to allow defendants the opportunity to

object, present evidence, or cross-examine witnesses, it denied

defendants an opportunity to meaningfully participate).

¶ 62 Thus, we reject defendants’ claim that C.R.C.P. 55 deprived

the court of discretion to deny their request for remote testimony.

And because defendants fail to address the reason the court denied

their request — failure to comply with C.R.C.P. 43(i) — we

necessarily affirm the court’s order. See IBC Denver II, LLC v. City

35
of Wheat Ridge, 183 P.3d 714, 717-18 (Colo. App. 2008) (an

appellant’s failure to challenge all bases for the lower court’s

decision requires affirmance).

V. Damages

¶ 63 Finally, defendants contend that the district court erred by

awarding the firm “all claimed damages,” including treble damages,

because (1) the evidence did not support the claimed damages; and

(2) the firm’s complaint failed to set forth a sufficient basis for its

claims of civil theft, COCCA violation, or civil conspiracy. We are

not persuaded.

A. Standard of Review and Generally Applicable Law

¶ 64 We review a trial court’s assessment of damages for clear

error. Blakeland Drive Invs., LLP IV v. Taghavi, 2023 COA 30M,

¶ 38. The trial court has broad discretion to determine the amount

of damages to award. McDonald’s Corp. v. Brentwood Ctr., Ltd., 942

P.2d 1308, 1311 (Colo. App. 1997). We will not disturb an award of

damages unless it is completely without record support. Hauser v.

Rose Health Care Sys., 857 P.2d 524, 531 (Colo. App. 1993).

¶ 65 An entry of default establishes liability, but it does not

establish damages. Dickinson v. Lincoln Bldg. Corp., 2015 COA

36
170M, ¶¶ 22-23. If information is needed to determine damages

beyond the complaint’s allegations — which are deemed admitted —

the court should hold a hearing. C.R.C.P. 55(b)(1); Kwik Way

Stores, 745 P.2d at 679. But “[a] damages hearing is only held to

determine the amount of damages owed, and any discussion of the

liability underlying that award is prohibited.” Dickinson, ¶ 28.

B. Additional Background

¶ 66 The firm requested $126,570.49 in damages as follows:

a. KeyBank Theft: $10,628.36

b. Office Pre-Paid Rent/Deposit: $25,478.70

c. Possession/Retention of Artwork: $2,400

d. Possession/Retention of Copy Machine:
$22,283.12

e. Possession/Retention of Equipment/
Appliances/Supplies/Insurance: $22,858.43

f. (Estimated) Diverted Municipality of
Anchorage Revenue: $18,360

g. (Estimated) Diverted Receivables:
$24,561.88.

The firm also requested treble damages based on its civil theft and

COCCA claims and prejudgment interest.

37
¶ 67 At the damages hearing, Kuhn testified, and the court

admitted email exchanges between Kuhn and defendants regarding

the $10,000 cash withdrawal from the KeyBank account. In the

emails, defendants did not deny taking the money; they argued they

were entitled to it. The firm also admitted the KeyBank withdrawal

receipt for the $10,000, the office lease agreement and a copy of a

check reflecting payment of the security deposit, a KeyBank

withdrawal receipt for money Lancaster used to buy art for the

office, and receipts for unauthorized personal purchases by

Lancaster on the firm’s credit card. The firm also admitted an

itemized breakdown of the requested damages.

¶ 68 Lancaster arrived at the hearing late but cross-examined Kuhn

regarding the claimed damages and the admitted exhibits. During

closing, Lancaster argued that Kuhn “couldn’t answer . . . what was

done by [the firm] to open a firm in Alaska and then claim all these

damages.” She continued, “[O]utside of the [c]omplaint, [Kuhn]

basically repeated that he doesn’t have clear documents. He

doesn’t have clear invoicing. He doesn’t know what happened. He

doesn’t know what’s spent. He doesn’t know who signed things. He

38
doesn’t know what checks went out.” Lancaster also argued that

treble damages are “punitive” and should be determined by a jury.

¶ 69 The district court first ruled that the allegations in the

complaint were deemed admitted because default had entered

against the defendants. The court then determined that the firm’s

complaint, Kuhn’s testimony, and the exhibits established that

defendants “knowingly and intentionally took control over monies

and things of value of the firm without authorization and then

retained control over those and refused to return or reimburse

despite requests to do so.” The court concluded that the firm’s

requested damages were supported by the evidence. And the court

awarded treble damages based on the civil theft and COCCA claims.

C. The Record Supports the Damages Award

¶ 70 Although defendants contend that the district court erred by

granting the firm all claimed damages “despite evidence within the

record that [the firm] was not damaged as claimed,” they point us to

no such evidence. It is the defendants’ burden to direct us to the

relevant evidence in the record. See Brighton Sch. Dist. 27J v.

Transamerica Premier Ins. Co., 923 P.2d 328, 335 (Colo. App. 1996)

(“[I]t is not the duty of the reviewing court to search the record for

39
evidence to support bald assertions.”), aff’d, 940 P.2d 348 (Colo.

1997). And even if the evidence was conflicting, we will not reweigh

it. Lawry v. Palm, 192 P.3d 550, 558 (Colo. App. 2008) (“When the

evidence is conflicting, a reviewing court may not substitute its

conclusions for those of the trial court merely because there may be

credible evidence supporting a different result.”). Because the

record supports the court’s damages award, we will not disturb it.

See Blakeland Drive Invs., ¶ 38; Hauser, 857 P.2d at 531.

¶ 71 As to the argument that the allegations in the firm’s complaint

were not well pleaded and thus were insufficient to establish

defendants’ liability on the civil theft, COCCA, and civil conspiracy

claims, see Ferraro, ¶¶ 16-17 (a defendant does not admit facts that

are not well pleaded or admit conclusions of law because baseless

claims should not proceed to final judgment), we conclude that

defendants failed to preserve this contention. The only argument

Lancaster made at the hearing with regard to treble damages was

that an award of such damages was punitive and should be

determined by a jury. Defendants’ argument on appeal is different,

so we decline to address it. See Gebert v. Sears, Roebuck & Co.,

2023 COA 107, ¶ 25 (“In civil cases, arguments never presented to,

40
considered by, or ruled upon by a district court may not be raised

for the first time on appeal.”).

VI. The Firm’s Request for Appellate Attorney Fees

¶ 72 The firm requests an award of appellate attorney fees on the

basis that the district court awarded it fees for prevailing on the

civil theft and COCCA claims. Because the firm failed to cite any

authority entitling it to the requested fees, we decline to award

them. See C.A.R. 39.1 (“If attorney fees are recoverable for the

appeal, the principal brief of the party claiming attorney fees must

include a specific request, under a separate heading, and must

explain the legal and factual basis for an award of attorney fees.”).

VII. Disposition

¶ 73 We affirm the judgment.

JUDGE FOX and JUDGE MEIRINK concur.

41