23CA1629 Bert v Evans 07-03-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1629
Elbert County District Court No. 23CV30047
Honorable Theresa Slade, Judge
Carlton Bert and Shari Bert,
Plaintiffs-Appellees,
v.
Chad E. Evans and Evans Performance Horses, LLC,
Defendants-Appellants.
ORDER AFFIRMED
Division IV
Opinion by JUDGE PAWAR
Navarro and Johnson, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 3, 2024
Spencer Fane LLP, John O’Brien, Scott C. Sandberg, Denver, Colorado, for
Plaintiffs-Appellees
FENNEMORE CRAIG, P.C., Patrick J. Hickey, Tanya J. Sevy, Denver, Colorado,
for Defendants-Appellants
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¶ 1 Defendants, Chad E. Evans and Evans Performance Horses,
LLC (collectively, the Evans parties), appeal from the district court’s
order denying their motion for relief from a default judgment in
favor of plaintiffs, Carlton Bert and Shari Bert (collectively, the
Berts) entered by a Kansas court. We affirm.
I. Background
¶ 2 The Berts filed a complaint in Kansas district court asserting
claims for fraud, conversion, breach of fiduciary duties, and breach
of contract, against the Evans parties. The claims pertained to an
agreement for the purchase and sale of a show horse, the proceeds
of which the Berts alleged they did not receive. The Evans parties
did not answer the complaint, and the Kansas district court issued
a default judgment against them.
¶ 3 Shortly thereafter, the Evans parties, through counsel, moved
for the Kansas court to set aside the default judgment. They argued
that they were not involved in the transactions involving the horse
at issue and did not reside, own property, or do business in Kansas.
They also asserted that they had not hired counsel or taken action
in response to the Berts’ complaint because they believed the
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matter had been resolved by way of a phone conversation. The
Kansas court denied the motion.
¶ 4 After the Berts domesticated the Kansas default judgment in
Colorado, the Evans parties filed the underlying motion for relief
from the foreign judgment. They argued that the judgment was
void because the Kansas court lacked personal jurisdiction over
them. The district court summarily denied the motion for relief.
¶ 5 The Evans parties appeal.
II. Applicable Law
¶ 6 Article IV of the United States Constitution provides that “Full
Faith and Credit shall be given in each State to . . . judicial
Proceedings of every other State.” U.S. Const. art. IV, § 1. Under
the Uniform Enforcement of Foreign Judgments Act (UEFJA),
section 13-53-103, C.R.S. 2023, a foreign judgment properly
authenticated and filed in a Colorado court renders that judgment
enforceable in the same manner as a Colorado judgment. See
Hunter Tech., Inc. v. Scott, 701 P.2d 645, 646 (Colo. App. 1985). A
proper foreign judgment is further “subject to the same procedures,
defenses, and proceedings for reopening, vacating, or staying as a
judgment of the court of this state.” § 13-53-103.
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¶ 7 The UEFJA is intended to implement the full faith and credit
clause and to provide a summary procedure for enforcing foreign
judgments. While a debtor may challenge a foreign judgment under
C.R.C.P. 60(b), they may do so only to the extent permitted by the
full faith and credit clause. See Marworth, Inc. v. McGuire, 810 P.2d
653, 657 (Colo. 1991). Relief from a qualifying foreign judgment
under C.R.C.P. 60(b) is limited to cases involving lack of personal or
subject matter jurisdiction of the rendering court; fraud in the
procurement of the judgment; or satisfaction, lack of due process,
or other grounds that make the judgment invalid or unenforceable.
See id. at 656 (the judgment debtor may not relitigate the nature,
amount, or other aspects of the merits of the judgment).
III. Discussion
¶ 8 We recognize that a foreign judgment may be challenged on
the grounds that it was entered without personal jurisdiction.
Nevertheless, the Berts argue the Evans parties are barred from
challenging the Kansas court’s personal jurisdiction here under the
doctrine of res judicata. We agree.
¶ 9 The doctrine of res judicata encompasses both claim
preclusion, which is true res judicata, and issue preclusion, more
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commonly called collateral estoppel. In re Marriage of Mallon, 956
P.2d 642, 644 (Colo. App. 1998). Under claim preclusion, a final
judgment on the merits of an action precludes the parties from
relitigating claims that were or could have been raised in that
action. People v. Tolbert, 216 P.3d 1, 4 (Colo. App. 2007). For a
claim in a second judicial proceeding to be precluded by a previous
judgment, there must exist: (1) finality of the first judgment; (2)
identity of subject matter; (3) identity of claims for relief; and (4)
identity or privity between parties to the actions. Argus Real Est.,
Inc. v. E-470 Pub. Highway Auth., 109 P.3d 604, 608 (Colo. 2005).
¶ 10 With respect to the first and fourth elements of this test, there
is no question that the Kansas default judgment is final or that the
Berts and Evans parties were involved in the litigation in both
Kansas and Colorado. We further conclude that the second element
— identity of subject matter — is satisfied because the subject
matter of the parties’ dispute remains the same. That is, the foreign
judgment at issue here stems from the original underlying lawsuit.
¶ 11 The Evans parties assert the third element — identity of
claims for relief — cannot be satisfied because they never raised the
“actual argument” of personal jurisdiction in Kansas. We are not
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persuaded. Although they fail to mention it in the opening brief,
the Evans parties contested the Kansas court’s “proper jurisdiction
over them” when their attorney entered a special appearance to set
aside the default judgment there. See Delta Cnty. Mem’l Hosp. v.
Indus. Claim Appeals Off., 2021 COA 84, ¶ 22 (“A special
appearance is one made for the purpose of urging jurisdictional
objections.”). Their motion under section 60-260, K.S.A. 2023
(Kansas’s equivalent to C.R.C.P. 60(b)), also asserted a similar
argument as to the one they raised in Colorado — that they had not
done business with the Berts at all relating to the transaction at
issue or been to Kansas during the time alleged. In support, the
Kansas motion asserted that Chad Evans currently resides in
Colorado, has never resided in Kansas, and has not owned any
property or business interest in Kansas. The motion further states
that Evans’ company is incorporated in and authorized to do
business solely in Colorado and its principal office is located in
Colorado.
¶ 12 Considering the special entry of appearance filed by the Evans
parties’ attorney, the stated ongoing challenge to personal
jurisdiction, and the factual averments relevant to such challenge,
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we conclude the issue of personal jurisdiction raised before the
Colorado court was raised and fully litigated before the Kansas
court. See Argus Real Est., Inc., 109 P.3d at 608-09 (the inquiry of
whether there exists identity of claims for relief for purposes of
claim preclusion “does not focus on the specific claim asserted or
the name given to the claim”).
¶ 13 True, personal jurisdiction can be raised for the first time
when challenging a foreign judgment. But after the default
judgment entered against the Evans parties, they did not merely
wait to challenge its validity once the Berts sought to domesticate it
in Colorado. The Evans parties actually challenged the validity of
the default judgment in Kansas on personal jurisdiction grounds.
¶ 14 Indeed, the Evans parties had the option of declining to appear
at all in the Kansas proceedings. But instead, they sought remedy
under various theories, including personal jurisdiction. Having
done so, “the doctrine of res judicata must be applied” to this
question of jurisdiction. See Superior Distrib. Corp. v. White, 146
Colo. 595, 600, 362 P.2d 196, 199 (1961) (claim preclusion applies
to questions of jurisdiction in matters “involving application of the
full faith and credit clause”). The Evans parties were unsuccessful
7
in their jurisdictional challenge in Kansas. They cannot now seek
relief from the Colorado district court under the same theory,
hoping for a different outcome. Accordingly, we conclude they are
not entitled to relief.
IV. Disposition
¶ 15 The order is affirmed.
JUDGE NAVARRO and JUDGE JOHNSON concur.
