Chapter 12 - § 12.11 • TRIAL

• Jurisdiction: Colorado

§ 12.11 • TRIAL

When the time for response to the summons has expired (35 days after the date of the last publication for those parties served by publication), if no responses other than disclaimers and the answer of the military attorney have been filed, the matter can be set for a non-contested trial. A fictitious transcript is included in these materials to give you an idea of the non-contested trial procedure. See Exhibit 12A. Alternatively, a motion for summary judgment may be appropriate. Upon conclusion of the trial, or upon granting of the motion for summary judgment, the court should sign an Order for Default and Entry of Judgment with respect to all non-appearing defendants.

Whether by summary judgment or trial, remember that the plaintiff has the burden of proof and must present a prima facie case to the court by a preponderance of the evidence, C.R.S. § 13-25-127, except in adverse possession cases, which require proof by clear and convincing evidence if commenced on or after July 1, 2008. C.R.S. § 38-41-101(3)(a). If your QTA includes an allegation of adverse possession, this statute should be carefully analyzed. Easements claimed by prescription are not, however, affected. C.R.S. § 38-41-101(4). The plaintiff must rely upon the strength of the plaintiff's evidence and not the weakness of the defendant's case. Perfect Place,...