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757 P.2d 1142

12 BriefTimesRptr. 882

Westbrook v. Burris

Colorado Court of Appeals

Decided June 9, 1988

Colorado Court of Appeals · decided 1988-06-09

Cited by 1 later decisions — most recently May 2000

1 state decisions

Relies on 35 Colo. App. 306 - BANKERS UNION LIFE INSURANCE COMPANY v. Fiocca · Schaffer v. Martin

Good law ✅— No negative treatment on recordhow we know

Decided 1988-06-09

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PLANK, Judge.

¶1Defendant, Terry Burris, appeals from a default judgment entered against him upon the cross-claim of co-defendant, Al E. West-brook. We reverse.

¶2Burris contends that the trial court erred in entering default judgment without giving three days notice pursuant to C.R.C.P. 55(b)(2). We agree.

¶3Plaintiff, Karen Andrews, filed a complaint for breach of contract against multiple defendants including Burris and Westbrook. All defendants filed timely answers. Westbrook also filed a cross-claim against Burris and another defendant not a party to this appeal. Burris failed to answer the cross-claim and Westbrook moved for default judgment. A copy of the mo*1143tion was not served on Burris. Without prior notice, the trial court entered default and judgment against Burris.

¶4By filing an answer to plaintiffs complaint, Burris appeared in the action and exhibited an intent to defend. Thus, Burris was entitled to receive written notice of the application for default judgment. The failure to comply with this notice requirement is error and renders the default judgment void. See Schaffer v. Martin, 623 P.2d 77 (Colo.App.1980); Bankers Union Life Insurance Co. v. Fiocca, 35 Colo. App. 306, 532 P.2d 57 (1975).

¶5The judgment is reversed and the cause is remanded with directions to reinstate the cross-claim against Burris and for further proceedings as necessary for disposition of that claim.

PIERCE and TURSI, JJ., concur.
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