Volume 33 — Colorado Court of Appeals Reports

1. <bold>JUDGMENT</bold> — <italic>Independent Equitable Action — Afford Relief — Prior</italic><italic>Judgment — Recognized — Provided For — Rules of Procedure</italic>. The propriety of an independent equitable action to afford relief from a prior judgment has long been recognized in Colorado, and is expressly permitted under the provisions of the rules of procedure. 2. <italic>Independent Equitable Action — Relief — Prior Judgment — Remedies —</italic><italic>In Addition — Rules of Procedure — Not Subject — Procedural Limitations</italic>. An independent equitable action to afford relief from a prior judgment may provide remedies in addition to those afforded under the rules of procedure, and is not restricted by the six month time limitation imposed on motions made under the procedural rules nor the reasonable time limitation imposed upon motions made under those rules. 3. <italic>Independent Equitable Action — Direct Attack — Prior Judgment — Not</italic><italic>Subject — Restrictions Imposed — Collateral Attacks</italic>. An independent equitable action permitted under the rules of procedure is a direct attack on a prior judgment, and thus it is not subject to the restrictions imposed on collateral attacks in which the validity of a judgment is questioned as an incident of a proceeding held for some other purpose. 4. <italic>Independent Equitable Action — Set Aside — Default Judgment —</italic><italic>Within Discretion — Trial Court — Controlled — Fixed Legal Principles</italic>. In an independent equitable action to afford relief from a prior judgment, the determination of whether to vacate or set aside a default judgment has been held to be within the sole discretion of the trial court; however, the discretion of the court in considering any application to vacate a default<page_number>Page 321</page_number> is controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to serve and not to impede or defeat the ends of justice. 5. <italic>Independent Equitable Action — Afford Relief — Prior Judgment —</italic><italic>Criteria for Granting — Described</italic>. In an independent equitable action to afford relief from a prior judgment contemplated by the rules of procedure, the criteria upon which relief may be granted is as follows: 1) That the judgment ought not, in equity and good conscience, be enforced; 2) that there can be asserted a meritorious defense to the cause of action on which the judgment is founded; 3) that fraud, accident, or mistake prevented the defendant in the action from obtaining the benefit of his defense; 4) that there is an absence of fault or negligence on the part of the defendant; 5) and that there exists no adequate remedy at law. 6. <bold>ATTORNEY AND CLIENT</bold> — <italic>Gross Negligence — Of Counsel — Excusable Neglect</italic><italic>— Default Judgment — May Be Set Aside</italic>. Gross negligence on the part of counsel resulting in a default judgment is considered excusable neglect on the part of the client entitling him to have the judgment set aside. 7. <italic>Action — Set Aside — Default Judgment — Existence — Legal Action —</italic><italic>Against — Former Counsel — Not — Adequate Remedy at Law</italic>. In an independent equitable action to set aside a prior default judgment, the existence of a separate legal action against appellee's former counsel is not an adequate remedy at law that would operate to preclude the equitable action.