Rodriguez v. Elite
Rodriguez v. Elite
Rodriguez v. Elite
Opinion
23CA1728 Rodriguez v Elite 08-01-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1728
Weld County District Court No. 22CV30728
Honorable Todd Taylor, Judge
Daniel Rodriguez,
Plaintiff-Appellee,
v.
Elite Rooter Denver, Inc., a Colorado corporation; Pratik Patel; and Alfonso
Jimenez,
Defendants-Appellants.
ORDERS AFFIRMED AND APPEAL
DISMISSED IN PART
Division IV
Opinion by JUDGE JOHNSON
Navarro and Pawar, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 1, 2024
The Wilhite & Miller Law Firm, David H. Miller, Victoria E. Guzman, Denver,
Colorado, for Plaintiff-Appellee
Gray Bugos & Schroeder LLC, J. Lee Gray, Joshua F. Bugos, Littleton,
Colorado, for Defendants-Appellants
1
¶ 1 In this employment matter, defendants, Elite Rooter Denver,
Inc. (Elite Rooter); Pratik Patel (Patel); and Alfonso Jimenez
(Alfonso)
1
(collectively defendants), appeal the district court’s order
entering default judgment against them in favor of plaintiff, Daniel
Rodriguez (Rodriguez). Elite Rooter also appeals the district court’s
orders denying defendants’ motions to quash service of process and
to vacate the default judgment. We affirm the orders and dismiss
the appeal in part.
I. Background
¶ 2 Elite Rooter employed Rodriguez from June 2020 to December
2022. As a division manager whose duties were to make sales to
customers and supervise technicians, Rodriguez was paid on a
commission basis for sales over $1,000. In May 2022, Rodriguez
made a sale to a customer totaling $454,592.32.
¶ 3 On September 27, 2022, Rodriguez filed a complaint alleging
that Elite Rooter; Patel, the owner of Elite Rooter; and Alfonso, the
Colorado area manager of Elite Rooter, failed to pay him his
1
Because we later refer to another individual by the name of
Connor Jimenez, and he and Alfonso Jimenez share the same last
name, we will refer to the individuals by their first names. We
intend no disrespect in doing so.
2
commission and unlawfully retaliated against him for demanding
payment of those wages. The complaint also alleged that Alfonso
committed civil theft of Rodriguez’s wages. Alfonso was served with
the complaint on October 3; Elite Rooter was served on October 5
via April Sarmiento (Sarmiento), the receptionist of Elite Rooter’s
operations manager, Connor Jimenez (Connor); and Patel was
served on October 17 in Ventura, California.
¶ 4 Because the defendants failed to answer or otherwise respond
to the complaint, Rodriguez applied for entry of clerk’s default on
December 5, which the court clerk entered against all defendants
on December 14. On January 17, 2023, Rodriguez filed a motion
for default judgment. As requested by the court, Rodriguez set a
damages hearing. The hearing took place on March 21, and none of
the defendants attended. On March 22, Rodriguez filed an
amended motion for default judgment requesting attorney fees and
costs. The next day, on March 23, the court entered default
judgment against defendants, jointly and severally, in the amount
3
of $143,764.71
2
for the unpaid commissions and entered default
judgment against Alfonso, individually, in the amount of
$58,438.83 for civil theft.
¶ 5 On May 5, Rodriguez began collection efforts to satisfy the
judgment by filing a writ of garnishment directed to Elite Rooter’s
bank accounts. Elite Rooter entered its appearance through
counsel for the first time on June 15 by filing a motion seeking to
quash service of process. On July 6, Elite Rooter also filed a
C.R.C.P. 60(b)(3) motion to vacate the default judgment and set
aside the writ of garnishment as well as a motion to stay further
enforcement of the default judgment. Rodriguez filed responses to
the three motions, and on August 23, the court entered three orders
denying Elite Rooter’s requested relief.
¶ 6 Defendants then filed two additional Rule 60 motions — a
motion to reconsider and vacate the court’s damages award and a
motion for reconsideration of the court’s orders denying the motion
to quash and the motion to vacate the default judgment. In an
2
This amount included Rodriguez’s back wages, penalties under
the Colorado Wage Act, compensatory damages, attorney fees, and
costs.
4
October 25 order addressing the two motions, the district court
stated that because defendants had filed a notice of appeal “related
to the judgment they seek to reconsider and vacate,” jurisdiction
had shifted to this court. Thus, the district court said it “w[ould]
take no action on the motion[s].”
¶ 7 Defendants appeal the March 23, 2023 order granting the
amended motion for default judgment. Elite Rooter separately
appeals the August 23, 2023 order denying the company’s request
to set aside the default judgment because (1) its due process rights
were violated when Rodriguez failed to notify it of the damages
hearing, and (2) the judgment was void due to improper service of
process. Respectively, defendants and Rodriguez also request
appellate attorney fees and costs.
II. March 23, 2023 Order
¶ 8 Rodriguez contends that defendants’ appeal of the March 23,
2023 order must be dismissed because their notice of appeal was
untimely filed. We agree.
¶ 9 C.A.R. 4(a)(1) requires appellants to file an appeal within forty-
nine days of a final appealable order. It is well settled that a district
court’s order denying relief under C.R.C.P. 60(b) “is appealable
5
independently of an underlying judgment.” Guevara v. Foxhoven,
928 P.2d 793, 794 (Colo. App. 1996); see also Harriman v. Cabela’s
Inc., 2016 COA 43, ¶¶ 55-56 (reaffirming that a party’s Rule 60(b)
motion cannot circumvent the time limitations for a motion under
C.R.C.P. 59(j), nor can it be used as a substitute for appeal).
¶ 10 The deadline to appeal the March 23 order was May 11, 2023.
Defendants filed their notice of appeal seeking review of the March
23 order on October 5, 2023, 147 days past the deadline.
¶ 11 Because their notice of appeal was untimely filed, we dismiss
the portion of defendants’ appeal seeking review of the March 23,
2023 default judgment. See Bosworth Data Servs., Inc. v. Gloss, 41
Colo. App. 530, 530-31, 587 P.2d 1201, 1202 (1978) (“Compliance
with C.A.R. 4(a) is mandatory; failure to comply deprives this court
of jurisdiction and precludes a review of the merits.”).
6
III. August 23, 2023 Order
¶ 12 Elite Rooter contends that the district court erred when it did
not vacate the default judgment because the company (1) was not
properly served; and (2) did not get notice of the damages hearing.
3
A. Standard of Review and Applicable Law
¶ 13 C.R.C.P. 55(c) provides that the entry of a default judgment
may be set aside in accordance with C.R.C.P. 60(b). A party may
seek to set aside a default judgment on grounds it is void due to
improper service of process under C.R.C.P. 60(b)(3). Goodman
Assocs., LLC v. WP Mountain Props., LLC, 222 P.3d 310, 314 (Colo.
2010). We review de novo a court’s ruling under Rule 60(b)(3), as
there is no discretion for the district court to exercise because “[t]he
judgment either is void or it isn’t and relief must be afforded
accordingly.” In re Marriage of Stroud, 631 P.2d 168, 170 n.5 (Colo.
1981).
3
In the reply brief, Patel and Alfonso appear to challenge the
August 23, 2023 order. But in the opening brief, Patel and Alfonso
say that only Elite Rooter challenges that order. Regardless, those
two individuals did not file a motion to vacate the judgment under
C.R.C.P. 60(b), so they cannot now appeal the August 23, 2023
order.
7
¶ 14 The defendant bears the burden of proof to establish by clear
and convincing evidence that the judgment is void due to lack of
personal jurisdiction because of improper service of process.
Tallman v. Aune, 2019 COA 12, ¶ 24.
¶ 15 “The presumption of regularity generally presumes that a
judgment is valid and was properly entered.” Id. at ¶ 29. A district
court must “give effect to the presumption that the legal
prerequisites to the entry of a valid judgment had been duly
observed.” Id. at ¶ 40 (quoting Haskell v. Gross, 145 Colo. 365,
367, 358 P.2d 1024, 1026 (1961)). To rebut the presumption, the
defendant must “affirmatively show” that the district court erred by
finding proper service of process. Id. at ¶ 44 (quoting LePage v.
People, 2014 CO 13, ¶16). Such an affirmative showing might
include a defendant submitting affidavits or requesting a hearing to
present evidence. See id. at ¶ 47.
¶ 16 Even if the district court correctly determines that the
judgment is not void and cannot be set aside under Rule 60(b)(3)
because service of process was proper, a default judgment may
nevertheless be set aside under Rule 60(b)(1) if the defendant can
prove mistake or excusable neglect. Goodman, 222 P.3d at 319.
8
We review a court’s ruling under Rule 60(b)(1) for an abuse of
discretion. Id. at 314. For excusable neglect, a court must consider
whether (1) the neglect that resulted in the default judgment is
excusable; (2) the moving party has alleged a meritorious defense;
and (3) relief from the challenged order would be consistent with
considerations of equity. Id. at 319.
B. Service of Process was Valid
¶ 17 In its June 15 motion to quash and July 6 motion to vacate
the default judgment, Elite Rooter submitted affidavits from
Connor, who asserted that he was the operations manager of and
“functional equivalent” of an officer for Elite Rooter. Connor
attested that he had not been served the complaint, did not know
about Rodriguez’s lawsuit until the company’s bank accounts were
frozen, and that Sarmiento, the person purportedly served on
October 5, 2022 by the process server, was a low-level employee
and not his receptionist, secretary, or assistant. Elite Rooter
argued that the default judgment should be vacated under Rule
60(b) by relying on federal case law and older Colorado case law.
Indeed, neither motion relies on, much less cites to, the standards
set forth in Goodman and Tallman.
9
¶ 18 In response, Rodriguez submitted his own affidavit, as well as
an affidavit from the process server. The process server attested
that, according to the Colorado Secretary of State’s website, Patel is
listed as the registered agent for Elite Rooter, and he is located at
the Windsor, Colorado office. At that office, the process server
spoke to an unidentified woman, who informed him that Patel
worked in the California office and that a person with authority for
the company could be located at the company’s office in
Westminster, Colorado. The process server went to the
Westminster office and served Sarmiento, “who identified herself as
the receptionist for Elite Rooter.”
¶ 19 In addition to the affidavits, Rodriguez argued that when
return of service is in the proper form and sets out the
requirements of C.R.C.P. 4, the burden shifts to the defendant to
prove by clear and convincing evidence that service was improper.
4
The court’s August 23 order denied the motion to vacate the default
4
P. 784, 785 (1924) for the legal standard, the standard he relies on
is generally consistent with the updated framework outlined in
Goodman Assocs., LLC v. WP Mountain Props., LLC, 222 P.3d 310,
10
judgment based on the rationale set forth in Rodriguez’s July 24
responses. For the below reasons and based on this record, we will
not disturb the court’s order.
5
¶ 20 Even though Rodriguez did not specifically refer to it as such,
he essentially argues that he is entitled to the presumption of
regularity that the court properly entered the default judgment. He
continues that the affidavit of service for Elite Rooter filed with the
court was in the proper format; thus, it sufficiently recited “the
essential facts to demonstrate adequacy of service.” Goodman, 222
P.3d at 315.
¶ 21 The court’s order does not explicitly find that Elite Rooter
failed to rebut the presumption of regularity, but the record
implicitly supports that Elite Rooter failed to “affirmatively show” by
clear and convincing evidence that service upon it was improper.
Tallman, ¶ 44 (quoting LePage, ¶ 16). Despite Connor’s affidavit,
Elite Rooter failed to show through sworn statements from
Sarmiento or Patel that
5
We treat Rodriguez’s responses to the motions to quash service
and to vacate the default judgment as a combined response, as he
incorporated his arguments made in the former into the latter.
11
• Sarmiento did not receive the summons.
• Sarmiento’s job title was not what she had identified to
the process server.
• Sarmiento’s job duties were not such that she had
authority to provide the summons to the appropriate
person in the company (Connor or Patel).
• Patel, as the registered agent, had not received the
summons from Sarmiento or the summons served on
him in Ventura, California.
Connor’s conclusory statements dispute that he received the
summons, but that does not mean service was not properly
effectuated on Elite Rooter given the absence of statements from
Patel and Sarmiento refuting proper service.
¶ 22 And although not specifically discussed in the court order, our
review of the record supports the court’s findings for two additional
reasons. First, Connor did not dispute that Patel was listed as Elite
Rooter’s registered agent, whose address for service was listed on
the Secretary of State’s website as the Windsor office; Connor
simply disputes that Patel, who was served at his workplace in
California, was served in his capacity as the registered agent for
12
Elite Rooter. Second, Patel had the burden “to put in place the
systems and personnel to make certain that documents reach the
Without an affidavit from Patel attesting to the procedures he
implemented to ensure he fulfilled his duties, and because Patel
lived in California (contrary to the Secretary of State’s information
for Elite Rooter), these facts do not satisfy the standards outlined in
Goodman. Thus, under Goodman and Tallman, the district court
did not err when it declined to vacate the default judgment.
C. Excusable Neglect
¶ 23 For the first time on appeal, Elite Rooter argues that the court
should have vacated the default judgment because its failure to
timely respond to the complaint was the result of excusable neglect
(i.e., the improper service of process). We do not see any argument
in Elite Rooter’s motion to quash or motion to vacate the default
judgment asking the district court to set aside the judgment
because of excusable neglect. And Elite Rooter cannot characterize
its improper service of process argument as one also asserting
excusable neglect, as the burdens of proof and standards of review
are distinct. We will not fault the district court for not addressing
13
the Goodman excusable neglect factors under C.R.C.P. 60(b)(1)
when Elite Rooter did not specifically raise this argument below.
See Est. of Stevenson v. Hollywood Bar & Cafe, Inc., 832 P.2d 718,
721 n.5 (Colo. 1992).
D. Notice of Damages Hearing
¶ 24 Finally, unrelated to the service of process issue, Elite Rooter
contends that the default judgment should be vacated because the
company did not have notice of the damages hearing. Rodriguez
argues that Elite Rooter did not preserve this argument. We agree
with Rodriguez.
¶ 25 Rodriguez points us to Elite Rooter’s July 6, 2023 motion in
which the company solely argued that the default judgment should
be vacated because the complaint was not properly served.
Rodriguez concedes that Elite Rooter raised due process arguments
related to the damages hearing later in the company’s October 5
motion to reconsider. But, as mentioned above, Elite Rooter also
filed on that same day its notice of appeal in this court, and
therefore, the district court took no action on the motion to
reconsider.
14
¶ 26 Based on this record, we agree with Rodriguez that Elite
Rooter’s argument was not preserved because the court lost
jurisdiction to rule on the alleged due process violation once Elite
Rooter filed an appeal. See Musick v. Woznicki, 136 P.3d 244, 246
(Colo. 2006) (“Generally, the filing of a notice of appeal
shifts jurisdiction to the appellate court, thus divesting the trial
court of jurisdiction to conduct further substantive action related to
the judgment on appeal.”). And even if the notice of appeal had not
been filed, we generally do not address issues raised for the first
time in a motion to reconsider. Lorenzen v. Pinnacol Assurance,
2019 COA 54, ¶ 18 n.3 (district courts and appellate courts are not
obligated to consider new arguments raised in a motion to
reconsider). Accordingly, we do not address this argument further.
See Est. of Stevenson, 832 P.2d at 721 n.5 (“Arguments never
presented to, considered or ruled upon by a [district] court may not
be raised for the first time on appeal.”).
IV. Appellate Attorney Fees and Costs
¶ 27 Given our disposition affirming the August 23, 2023 orders,
we grant Rodriguez’s request for appellate costs. See C.A.R. 39(a)(2)
(“[I]f a judgment is affirmed, costs are taxed against the appellant.”).
15
In doing so, we deny defendants’ request for appellate costs.
¶ 28 As to the parties’ respective requests for appellate attorney
fees, we deny both. Neither party cites any legal authority to
support their entitlement to such fees. See C.A.R. 39.1 (requiring
that the party requesting attorney fees explain the legal and factual
basis to support the request).
V. Conclusion
¶ 29 We affirm the August 23, 2023 orders and dismiss the appeal
of the March 23, 2023 default judgment.
JUDGE NAVARRO and JUDGE PAWAR concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.