Feller v. Kraxberger

24CA1881 Feller v Kraxberger 02-19-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1881
Larimer County District Court No. 21CV30863
Honorable C. Michelle Brinegar, Judge

Steven R. Feller and Stephanie G. Feller,

Plaintiffs-Appellants,

v.

Kraxberger Enterprises, Ltd., a Colorado corporation,

Defendant-Appellee.

JUDGMENT AND ORDER VACATED,
AND CASE REMANDED WITH DIRECTIONS

Division III
Opinion by JUDGE HARRIS
Dunn and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 19, 2026

Herms & Cullers, LLC, Jeffrey Cullers, Fort Collins, Colorado, for Plaintiffs-
Appellants

Fischer Law Group, P.C., Erik G. Fischer, Ashleigh Bravo, Fort Collins,
Colorado, for Defendant-Appellee
¶1 Steven and Stephanie Feller appeal the trial court’s C.R.C.P.

60(b) order setting aside the default judgment entered against

Kraxberger Enterprises, Ltd., d/b/a Builder’s Supply, Inc.

(Kraxberger), and the subsequent judgment entered after a damages

hearing. We vacate the order and judgment and remand the case

for further proceedings.

I. Background

A. Factual Summary

¶2 After a hailstorm damaged their home, the Fellers decided to

replace the home’s windows and a couple of exterior doors. (For

ease of reference, we refer to these items collectively as “the

windows.”) They hired Kraxberger (a glass product supplier but not

an installer) to supply the windows and Rogers Construction, LLC

(Rogers), to install them. Kraxberger and Rogers each sent an

employee to the Fellers’ home to take measurements and assist the

Fellers with product selection. The cost of the initial replacement

windows was $30,963.14.

¶3 When Kraxberger delivered the products, some of the windows

were the wrong color, so Kraxberger agreed to replace them. Rogers

1
installed the remaining windows but stopped work on the project

before Kraxberger delivered the remainder of the order.

¶4 The Fellers hired AllGuard Windows and Doors, LLC

(AllGuard), to install the rest of the windows. AllGuard completed

the work, but the Fellers were dissatisfied with the installation and

withheld the final payment.

¶5 The installed windows did not work properly. It turned out

that the initial measurements were inaccurate, so the windows were

the wrong size.

¶6 The Fellers ordered new windows from a second window

supplier and hired a third installer to remove and replace the

windows installed by Rogers and AllGuard.1 But the second

supplier and third installer ran into their own problems and could

not complete the work. At the time of the ensuing litigation, the

Fellers had purchased replacement windows from a third window

supplier and hired a fourth installer to complete the work.

1 The windows supplied by Kraxberger and installed by Rogers and

AllGuard were discarded after removal because the Fellers were
unable to find an entity that could repurpose them.

2
B. Procedural History

¶7 In November 2021, AllGuard sued the Fellers for failure to pay

the final invoice. The Fellers counterclaimed against AllGuard and

Rogers, alleging that both companies had performed the installation

work negligently.

¶8 As part of their investigation of the claims against AllGuard

and Rogers, the Fellers served Kraxberger with a subpoena for

documents in August 2022. Kraxberger accepted service, and

Steven Kraxberger, the company’s principal, promptly emailed the

responsive documents to the Fellers’ lawyer.

¶9 Around this same time, and in response to the Fellers’

counterclaims, Rogers designated Kraxberger a nonparty at fault.

See § 13-21-111.5(3), C.R.S. 2025. The Fellers then amended their

pleading to add Kraxberger as a counterclaim defendant,2 alleging

negligent measurement and product selection but not negligent

installation.

2 Contrary to the Fellers’ repeated arguments on appeal, they

denominated Kraxberger a “counterclaim defendant,” not a third-
party defendant, in their amended pleading. See C.R.C.P. 13(h).
Regardless, Kraxberger’s status in the litigation does not affect the
analysis.

3
¶ 10 In the meantime, AllGuard and the Fellers settled their

dispute, and AllGuard was dismissed from the case, leaving only

the Fellers’ counterclaims against Rogers and Kraxberger to be

resolved.

¶ 11 In September 2022, one month after Steven Kraxberger had

emailed documents to the Fellers’ lawyer, the Fellers filed a return

of service indicating that Kraxberger had been served with a

summons and the amended counterclaims via personal service on

Steven Kraxberger. Kraxberger failed to respond within the twenty-

one-day deadline. See C.R.C.P. 12(a). The Fellers moved for, and

the clerk entered, default against Kraxberger. See C.R.C.P. 55(a).

¶ 12 Several months later, the Fellers moved for entry of default

judgment. See C.R.C.P. 55(b). They sought approximately $85,000

in economic damages, which included $44,651 for the second set of

replacement windows (and staining); $35,700 for the third

installer’s labor; $930 in noneconomic damages for the

inconvenience to Stephanie Feller; and nearly $20,000 in interest,

for a total of $104,396.49.

¶ 13 By then, the Fellers had settled with Rogers for $20,000, most

of which they agreed should be applied as a setoff to the default

4
judgment. The court adopted the Fellers’ representations

concerning damages, but, without providing an explanation, it did

not set off the settlement amount. Accordingly, the court entered

judgment against Kraxberger in the amount of $104,396.49 plus

postjudgment interest and approximately $7,500 in costs.

¶ 14 Despite his earlier communication with Steven Kraxberger, the

Fellers’ lawyer delayed informing Kraxberger of the judgment in

order to preclude a motion to set the judgment aside. See C.R.C.P.

60(b) (a motion to set aside a judgment due to excusable neglect or

misconduct by the adverse party must be filed within 182 days, or

approximately six months, of entry of the judgment). Seven months

after entry of default judgment, the Fellers’ lawyer contacted Steven

Kraxberger, informed him of the judgment, and initiated collection

efforts.

¶ 15 Kraxberger promptly filed a motion to set aside the default

judgment, asserting that service had not been effectuated, the

damages awarded were grossly excessive and beyond the scope of

Kraxberger’s alleged liability, and equitable factors supported

setting aside the judgment.

5
¶ 16 At the evidentiary hearing on Kraxberger’s motion, the trial

court noted that the purpose of the hearing was to resolve the

dispute concerning service but said that it would hear additional

arguments on the motion to the extent the parties were prepared to

present such arguments.

¶ 17 The evidence surrounding the issue of service was sharply

conflicting. The process server testified that when he arrived at the

Kraxberger office, a woman greeted him and retrieved Steven

Kraxberger, whom he then served with the pleading. But Steven

Kraxberger testified that he had “never been served with a

summons and [counterclaim] in th[e] case,” and he said that no

woman had worked at the company for over ten years.

¶ 18 The trial court issued a brief oral ruling. It first found that

Steven Kraxberger’s testimony was “more persuasive” than the

process server’s, and, if a preponderance standard applied, it would

set aside the judgment for lack of service. But it concluded that

Steven Kraxberger’s testimony did not “rise to” the clear and

convincing standard of proof applicable to Rule 60(b) motions.

¶ 19 Nonetheless, although the court determined that relief was not

warranted for ineffective service, it agreed to set aside the judgment.

6
[T]he Court also finds that in this particular
situation, and in all cases, there’s really a
preference by the courts to resolve case[s] on
the merits and not on a default basis.
Especially in a situation like this where there
has been — this is a long-standing litigation.
This is a counterclaim. This is something that
the, that the Fellers sat on for quite some time.
And [the Fellers’ counsel] is correct, that’s the
rule and he’s exercising his judgment the way
he wants to exercise it. However, the Court
does not find it particularly appropriate in this
case to continue with the judgment as it is
now.

So I am going to not set aside the default.
However, I am going to . . . set aside the
judgment. So, now the judgment is at issue
before the Court. . . . [T]here is a default. I
can’t set that aside. By clear and convincing
evidence I just can’t based on the evidence
today. However, the judgment is not
appropriate, given all the information I’ve
heard. Given [Steven] Kraxberger’s willingness
and demonstrated ability to cooperate with the
defense. So that’s where we’re at.

¶ 20 The court held a damages hearing over two days. At the

conclusion of the hearing, the court awarded the Fellers $30,963.14

in damages — the amount they had paid Kraxberger for the original

order of replacement windows — plus interest. The court explained

that the Fellers had failed to prove that Kraxberger’s negligence,

which had been established by the default, caused the

7
approximately $100,000 in claimed damages. That conclusion was

based in part on the court’s finding that Stephanie Feller’s

testimony was unpersuasive and not credible. In the court’s view,

awarding the full amount of the requested damages would “not [be]

just.”

¶ 21 The Fellers appeal the trial court’s order setting aside the

default judgment against Kraxberger and the subsequent judgment.

In the alternative, they appeal only the subsequent judgment —

that is, the court’s damages award.3

¶ 22 We agree that the trial court’s factual findings and legal

conclusions are insufficient to support its decision to set aside the

default judgment. Accordingly, we vacate the court’s order and the

3 The Fellers purport to appeal the trial court’s order awarding

costs, but we lack jurisdiction to address that order. After the trial
court entered the damages judgment, the Fellers filed a notice of
appeal. While the appeal was pending, the trial court issued an
order awarding costs. Because costs are separately appealable from
the damages judgment, see Oster v. Baack, 2015 COA 39, ¶ 20, the
Fellers’ failure to file a separate notice of appeal or an amended
notice means that the cost award is not part of this appeal, see In re
Estate of Anderson, 727 P.2d 867, 870 (Colo. App. 1986) (notice of
appeal was not effective to initiate an appeal of an order entered
after the notice was filed).

8
subsequent judgment and remand for further proceedings without

addressing the Fellers’ alternative argument.

II. Analysis

A. Standard of Review and Preservation

¶ 23 As a general matter, we review a trial court’s decision to set

aside a judgment under C.R.C.P. 60(b) for an abuse of discretion.

Nickerson v. Network Sols., LLC, 2014 CO 79, ¶ 10. This deferential

standard reinforces two related principles — first, that “the criteria

for vacating a default judgment should be liberally construed” and,

second, that the trial court is ordinarily in the best position to

determine whether relief should be granted. McMichael v.

Encompass PAHS Rehab. Hosp., LLC, 2023 CO 2, ¶¶ 10, 12 (quoting

Sumler v. Dist. Ct., 889 P.2d 50, 56 (Colo. 1995)). A court abuses its

discretion when its ruling is “manifestly arbitrary, unreasonable,

unfair, or is based on a misapprehension or misapplication of the

law.” In re Estate of Chavez, 2022 COA 89M, ¶ 19.

¶ 24 However, “when a trial court finds a judgment void under

C.R.C.P. 60(b)(3), we review its decision de novo.” Nickerson, ¶ 10.

The Fellers argue that, because it is unclear whether the trial court

relied on C.R.C.P. 60(b)(3) or another provision of the rule when

9
setting aside the default judgment, de novo review applies. We need

not decide this issue, though, because, even applying the more

deferential standard, we conclude that the court erred.

¶ 25 The Fellers argue that because “Kraxberger never raised

C.R.C.P. 60(b)(5) as a reason to set aside the judgment, this Court

cannot consider it.” But Kraxberger’s motion to set aside the

default judgment discussed C.R.C.P. 60(b) generally, including

considerations of substantial justice and equity relevant to

subsection (5), and its reply brief confirmed that it was relying on

C.R.C.P. 60(b)(5). Kraxberger’s invocation of C.R.C.P. 60(b)(5) in the

trial court, together with the trial court’s ruling, sufficiently

preserved the issue for appeal. See Brown v. Am. Standard Ins. Co.

of Wis., 2019 COA 11, ¶ 23 (concluding that because the trial court

had ruled on the issue raised in the appellate court, the issue was

preserved for appeal).

B. Legal Principles

¶ 26 “Default judgments are disfavored. This is because default

judgment is ‘the harshest of all sanctions,’ which is why it ‘should

be imposed only in extreme circumstances.’” McMichael, ¶ 11

(quoting Beeghly v. Mack, 20 P.3d 610, 613 (Colo. 2001)).

10
¶ 27 A trial court may grant relief from a judgment “upon such

terms as are just.” C.R.C.P. 60(b); see Davidson v. McClellan, 16

P.3d 233, 237 (Colo. 2001). “When deciding whether to set aside a

default judgment, a court’s underlying goal must be to ‘promote

substantial justice.’” McMichael, ¶ 11 (quoting Buckmiller v.

Safeway Stores, Inc., 727 P.2d 1112, 1116 (Colo. 1986)).

¶ 28 A party seeking relief under C.R.C.P. 60(b)(1) or (b)(2) for

mistake, excusable neglect, or fraud must file the motion “not more

than 182 days after the judgment.” C.R.C.P. 60(b). Failure to seek

relief within this time limit bars the motion. In re Marriage of Seely,

689 P.2d 1154, 1159 (Colo. App. 1984).

¶ 29 In contrast, a party seeking relief under C.R.C.P. 60(b)(3),

(b)(4), or (b)(5) is not subject to a specific time bar. C.R.C.P.

60(b)(3), which permits relief from a void judgment, may be invoked

at any time. Burton v. Colo. Access, 2018 CO 11, ¶ 35. A party

seeking relief under C.R.C.P. 60(b)(4) because it is no longer

equitable for the judgment to have prospective effect or, under

C.R.C.P. 60(b)(5), for “any other reason justifying relief from the

operation of the judgment,” must file the motion within a

reasonable time. C.R.C.P. 60(b); see Seely, 689 P.2d at 1160

11
(concluding that motion filed eight months after judgment entered

was filed within a reasonable time).

¶ 30 C.R.C.P. 60(b)(5) “attempts to strike a balance between” the

principles of finality and justice. SR Condos., LLC v. K.C. Constr.,

Inc., 176 P.3d 866, 870 (Colo. App. 2007). But “to prevent this

residuary provision from swallowing the enumerated reasons and

subverting the principle of finality, it has been construed to apply

only to situations not covered by the enumerated provisions and

only in extreme situations or extraordinary circumstances.”

Davidson, 16 P.3d at 237; see also Canton Oil Corp. v. Dist. Ct., 731

P.2d 687, 694 (Colo. 1987) (explaining that the residual provision

should be “narrowly interpreted”). “However, this does not mean

that relief is unavailable under other provisions of C.R.C.P. 60(b)

simply because grounds have also been established under either or

both of clauses (1) and (2) of the rule.” Seely, 689 P.2d at 1159.

Thus, a court may grant relief under C.R.C.P. 60(b)(5) when

“circumstances exist[] that d[o] not fall solely within the ambit of”

the rule’s other provisions. Id. (emphasis added).

12
C. Application

¶ 31 The trial court did not make clear which subsection of

C.R.C.P. 60(b) it relied on to vacate the default judgment. However,

because Kraxberger’s motion was untimely for purposes of

subsections (1) and (2), the trial court disclaimed an ability to

provide relief under subsection (3) by finding that service was

effective, and subsection (4) is inapplicable to the facts of the case,

we presume that the trial court’s ruling was based on subsection

(5).

¶ 32 But to the extent the trial court intended to rely on the

residual provision, it failed to make the necessary finding of

“extraordinary circumstances” or an “extreme situation[]”

warranting vacatur of the default judgment. Davidson, 16 P.3d at

237. Instead, the trial court alluded to various procedural and

substantive issues present in the case, then concluded that

preserving the judgment would not be “particularly appropriate.”

The court noted, for example, that the litigation was “long-

standing”; Kraxberger was brought into the litigation late, as a

counterclaim defendant; Steven Kraxberger had demonstrated a

willingness to cooperate with the Fellers; and the Fellers had

13
delayed notifying Kraxberger of the default judgment. In addition,

although it had adopted the Fellers’ measure of damages in entering

the default judgment, the court later determined that Kraxberger

did not cause most of the Fellers’ damages, and, therefore, the

amount of the default judgment was erroneous and grossly

excessive.

¶ 33 Colorado appellate courts have “never definitively delineated

the scope of the extraordinary circumstances required for relief

under the ‘other reason’ clause” in C.R.C.P. 60(b). Canton Oil, 731

P.2d at 694. The cases approving vacatur under C.R.C.P. 60(b)(5)

present disparate factual scenarios.

¶ 34 In Seely, 689 P.2d at 1160, a division of this court held that

the trial court had properly set aside a separation agreement under

C.R.C.P. 60(b)(5) when the agreement was unfair, wife had not

appeared in the dissolution proceedings, and no judicial officer had

scrutinized the agreement before incorporating it into the decree.

The division explained that “[c]ourt errors and omissions” could

justify relief under C.R.C.P. 60(b)(5) and that the “total lack of any

significant judicial review” of the parties’ agreement amounted to

such an omission. Id.; see also Fed. Deposit Ins. Corp. v. United

14
Pac. Ins. Co., 152 F.3d 1266, 1275 (10th Cir. 1998) (collecting cases

from federal appellate courts applying Fed. R. Civ. P. 60(b) and

explaining that “a double recovery constitutes extraordinary

circumstances which justify relief from judgment”).

¶ 35 Canton Oil involved extraneous circumstances that affected

the judgment. In that case, the supreme court agreed with the trial

court that “grievous jury misconduct raising sensitive issues of

religion” amounted to extraordinary circumstances justifying setting

aside a verdict under C.R.C.P. 60(b)(5). Canton Oil, 731 P.2d at

694; see also State Farm Mut. Auto. Ins. Co. v. McMillan, 925 P.2d

785, 791 (Colo. 1996) (holding that, in limited instances, a change

in the controlling law could constitute an extraordinary

circumstance for purposes of C.R.C.P. 60(b)(5)); Cox v. Horn, 757

F.3d 113, 122 (3d Cir. 2014) (explaining that the court has “long

employed a flexible, multifactor approach . . . that takes into

account all the particulars of a movant’s case” when considering

motions under the residual provision of federal Rule 60(b)).

¶ 36 Given C.R.C.P. 60(b)(5)’s flexible standard, there may be a case

to be made that, in the aggregate, the issues the court identified in

its oral ruling — and potentially others that the court did not

15
articulate at that time — constitute an extraordinary circumstance

or extreme situation justifying relief. But the trial court did not

make that case. Indeed, it did not expressly acknowledge C.R.C.P.

60(b)(5) or make specific findings that the facts of this case satisfy

the standard for setting aside the default judgment under the

residual provision. See Buckmiller, 727 P.2d at 1115 (“We hold that

the trial court should have resolved Buckmiller’s [R]ule 60(b) motion

in accordance with clearly-defined legal criteria applicable to such a

motion and that its failure to do so constituted reversible error.”).

¶ 37 We decline the Fellers’ invitation to determine in the first

instance whether the court’s reasons for granting relief rise to the

level of extraordinary circumstances for purposes of C.R.C.P.

60(b)(5). For one thing, an appellate court is ill-suited to conduct

the equitable, fact-intensive inquiry called for by C.R.C.P. 60(b)(5).

Cf. Harriman v. Cabela’s Inc., 2016 COA 43, ¶¶ 76-77 (reversing the

trial court’s denial of a C.R.C.P. 60(b)(1) motion and remanding for

further findings because appellate courts may not undertake the

necessary fact-intensive inquiry Rule 60(b) requires). But also, as

the Fellers’ counsel acknowledged at oral argument, the trial court’s

findings are ambiguous. For example, the trial court identified

16
“[Steven] Kraxberger’s willingness and demonstrated ability to

cooperate with the defense” as a factor supporting its ruling. But it

is unclear whether the trial court’s comment refers to Steven

Kraxberger’s demeanor at the hearing on the motion to set aside the

default, his prior involvement in the litigation in connection with

the subpoena, or something else entirely. The court’s comments at

the damages hearing are likewise open to interpretation. We are

unsure whether the court thought the original judgment could not

stand because Stephanie Feller was not credible in detailing the

Fellers’ expenses or because it had committed a legal error by

failing to scrutinize the Fellers’ original request for a default

judgment in the amount of $104,396.49.

¶ 38 Whether the facts of this case present the type of

extraordinary circumstances entitling Kraxberger to relief under

C.R.C.P. 60(b) is for the trial court to decide in the first instance.

Accordingly, we vacate the court’s order setting aside the default

judgment and its subsequent damages judgment and remand this

matter for the court to reconsider Kraxberger’s motion anew under

the correct legal standard. When reconsidering the motion to set

aside the default, the trial court should identify the applicable

17
provision of C.R.C.P. 60(b) and explain the factual findings and

legal conclusions supporting its ruling. The court may, in its

discretion, hold an additional evidentiary hearing to resolve any

remaining factual issues.

III. Disposition

¶ 39 The trial court’s order setting aside the default judgment and

its subsequent judgment are vacated, and the case is remanded for

further proceedings.

JUDGE DUNN and JUDGE MOULTRIE concur.

18