State of Colorado v. Robert J. Hopp & Associates, LLC , 442 P.3d 986 ( 2018 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
May 17, 2018
2018COA69
No. 16CA1983, State of Colorado v. Robert J. Hopp and
Associates, LLC — Consumers — Colorado Consumer Protection
Act — Colorado Fair Debt Collection Practices Act
A division of the court of appeals considers whether the
Colorado Consumer Protection Act (CCPA) and the Colorado Fair
Debt Collection Practices Act (CFDCPA) prohibit foreclosure
attorneys and title companies from billing mortgage servicer clients
foreclosure commitment charges when those full costs were not
actually incurred, despite knowing that these fraudulent costs
would be assessed against homeowners in foreclosure. The division
concludes that such a practice violates the CCPA and CFDCPA.
COLORADO COURT OF APPEALS 2018COA69
Court of Appeals No. 16CA1983
City and County of Denver District Court No. 14CV34780
Honorable Shelley I. Gilman, Judge
State of Colorado, ex rel. Cynthia H. Coffman, Attorney General for the State of
Colorado; and Julie Ann Meade, Administrator, Uniform Consumer Credit
Code,
Plaintiffs-Appellees and Cross-Appellants,
v.
Robert J. Hopp & Associates, LLC; The Hopp Law Firm, LLC; National Title,
LLC, d/b/a Horizon National Title insurance, LLC; First National Title
Residential, LLC; Safehaus Holdings Group, LLC; and Robert J. Hopp,
Defendants-Appellants and Cross-Appellees,
JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE ROTHENBERG*
Taubman and Harris, JJ., concur
Announced May 17, 2018
Cynthia H. Coffman, Attorney General, Jennifer H. Hunt, First Assistant
Attorney General, Erik R. Neusch, Senior Assistant Attorney General, Rebecca
M. Taylor, Mark L. Boehmer, Assistant Attorneys General, Denver, Colorado,
for Plaintiffs-Appellees and Cross-Appellants
Richards Carrington, LLC, Christopher P. Carrington, Ruth M. Moore, Denver,
Colorado, for Defendants-Appellants and Cross-Appellees
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶1 In a case of first impression in the Colorado courts, we
address whether the Colorado Consumer Protection Act (CCPA) and
the Colorado Fair Debt Collection Practices Act (CFDCPA) prohibit
foreclosure attorneys and title companies from billing mortgage
servicer clients foreclosure commitment charges when those full
costs were not actually incurred, despite knowing that these
fraudulent costs would be assessed against homeowners in
foreclosure. We conclude that such a practice violates the CCPA
and CFDCPA.
¶2 Plaintiffs, the State of Colorado, ex rel. Cynthia H. Coffman,
Attorney General for the State of Colorado; and Julie Ann Meade,
Administrator, Uniform Consumer Credit Code, brought a civil law
enforcement action against defendants, foreclosure lawyer Robert J.
Hopp; his law firms, Robert J. Hopp & Associates, LLC, and The
Hopp Law Firm, LLC (collectively, the law firms); as well as Hopp’s
affiliated title companies, National Title, LLC, d/b/a Horizon
National Title Insurance, LLC, and First National Title Residential,
LLC; and Safehaus Holdings Group, LLC, a company owned by
Hopp and his wife Lori L. Hopp, which, through its subsidiary,
provided accounting and bookkeeping services for the law firms and
1
title companies. The State alleged that Hopp, the law firms, and
their affiliated companies violated the CCPA and the CFDCPA by
engaging in the billing practice described above. The district court
agreed, for the most part, with the State and imposed penalties
totaling $624,000. While Hopp’s wife, Lori Hopp, was a defendant
in the district court action, she was not found liable for any claims
and is not named as a party to this appeal.
¶3 Defendants appeal the trial court’s judgment; plaintiffs
cross-appeal an evidentiary ruling.
¶4 We affirm the district court’s judgment and remand the case
with directions.
I. Background
¶5 The trial court, in a thorough written order, found the
following facts and described the mechanics of the foreclosure
process in Colorado. The parties do not dispute these facts or
description.
A. Foreclosure Process
¶6 Generally, in Colorado, a person who borrows money from a
lender to purchase real property signs a promissory note and an
accompanying deed of trust. A deed of trust is “a security
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instrument containing a grant to a public trustee together with a
power of sale.” § 38-38-100.3(7), C.R.S. 2017. In the deed of trust,
the borrower agrees that, upon default, the lender can initiate a
nonjudicial foreclosure proceeding, which can result in the public
trustee’s eventual sale of the property.
¶7 A foreclosure may be withdrawn prior to sale for various
reasons, such as the borrower’s agreement to a loan modification,
disposal of the property through a short sale, the lender’s
agreement to a deed-in-lieu of foreclosure, or the borrower’s cure of
the default. The public trustee for El Paso County testified that
between 2008 and 2016, approximately half of the foreclosures filed
in Colorado were withdrawn before sale.
B. Cure Process
¶8 If a borrower wishes to end the foreclosure proceedings by
curing the default on the property, he or she may file a written
notice of intent to cure with the public trustee. § 38-38-104(1),
C.R.S. 2017. The public trustee must promptly contact the lender’s
attorney to request a written “cure statement” itemizing all sums
necessary to cure the default, including missed payments, accrued
interest, late fees, penalties, and the fees and costs associated with
3
the foreclosure. § 38-38-104(2)(a)(I). The lender’s attorney may
include good faith estimates with respect to interest, fees, and
costs. § 38-38-104(5).
C. Bid Process
¶9 If a foreclosure action is not withdrawn, the property that
serves as collateral for the borrower’s loan proceeds to sale. Before
the scheduled sale date, the holder of the evidence of debt, or the
holder’s attorney, submits a bid to the public trustee. § 38-38-
106(2), (6), C.R.S. 2017. The holder’s bid sets the minimum price
for bidding on the property and that bid must be at least the
lender’s good faith estimate of the fair market value of the property,
less certain sums identified in section 38-38-106(6). The bid
includes the attorney fees and costs.
¶ 10 If the property is purchased at sale for less than the borrower’s
total indebtedness to the lender, the lender may pursue the
collection of the deficiency from the borrower through other
avenues. If the property is purchased for more than the total
amount of indebtedness to the lender, any overbid may be claimed
by others with interests in the property, and then, upon payment of
those claims, by the borrower.
4
D. Title Commitments In Foreclosure Actions
¶ 11 At the beginning of a nonjudicial foreclosure action, the
lender’s attorney orders a title product for the subject property. A
foreclosure commitment is a title insurance product used to ensure
that insurable and marketable title is delivered to the lender at the
end of a foreclosure. It is a commitment to issue a title insurance
policy upon the satisfaction of certain conditions. A foreclosure
commitment often contains a hold-open provision so it does not
expire until twenty-four months after it is issued, in contrast to
non-foreclosure title commitments, which usually expire six months
after issuance.
¶ 12 The title agent’s underwriter sets the cost of title products
such as a foreclosure commitment. The underwriter sets forth
costs in the title company’s rate manual and submits the manual to
the Division of Insurance (DOI) for approval. The DOI reviews the
rates as part of its regulation of the insurance industry. See § 10-4-
401, C.R.S. 2017. A title agent is bound by the rate filed with the
DOI and may not charge more or less than that rate. Div. of Ins.
Reg. 8-1-1, § 6(F)-(G), 3 Code Colo. Regs. 702-8.
5
¶ 13 In the event that a foreclosure action is not completed because
the homeowner cures the deficiency by paying the asserted amount
due in the foreclosure action, or the foreclosure action is otherwise
cancelled or withdrawn, the foreclosure sale does not occur and the
title company cannot issue a title insurance policy.
E. The Defendants
¶ 14 Hopp is an attorney. His law firms provided legal services for
mortgage defaults, including residential foreclosures, in Colorado.
¶ 15 Through the law firms, Hopp represented loan servicers, such
as the Colorado Housing and Finance Authority, JPMorgan Chase,
and Bank of America in foreclosure proceedings. The
servicers-clients are not parties to this action.
¶ 16 Hopp owned several businesses which supported the law
firms’ foreclosure services. Together with his wife, Hopp owned a
holding group, SafeHaus Holdings Group, LLC (SafeHaus).
Safehaus owned a subsidiary which performed accounting and
bookkeeping services for the law firms. Safehaus also owned a title
company, National Title, LLC, which provided foreclosure
commitments for the law firms. Hopp was a partial owner of
another title company, First National Title Residential, LLC, which
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also provided foreclosure commitments to the law firms in 2008 and
2009.
¶ 17 National Title and First National Title Residential were
authorized to issue title commitments and policies through an
underwriter, Fidelity National Title Insurance Company (Fidelity).
Fidelity’s manual set forth, in relevant part, the following rates and
charges for a foreclosure commitment:
I-16 Foreclosure Commitment:
This section applies to a title commitment
issued to facilitate the foreclosure of a deed of
trust, including a policy to be issuable, within
a 24-month period after the commitment date,
naming as proposed insured the grantee of a
Confirmation Deed following the foreclosure,
the holder of a certificate of redemption or the
grantee upon the consummation of a resale
between the holder of a Confirmation Deed and
a bona fide third party purchaser within the
24-month hold open period. . . .
The charge will be 110% of the applicable
Schedule of Basic Rates based on the unpaid
balance of the deed of trust being foreclosed.
In the event of a cancellation prior to the
public trustee’s sale there shall be a charge of
$300.00 to $750.00, based on the amount of
work performed. Cancellations following the
public trustee’s sale shall be subject to the full
charges set forth in the second paragraph.
7
¶ 18 While representing the servicers, the law firms typically
ordered foreclosure commitments from Hopp’s title companies.
National Title invoiced the law firms a charge of 110% of the
schedule of basic rates upon the delivery of a foreclosure
commitment. As a routine practice, within ten days of filing a
foreclosure action, the law firms passed this cost on to the servicers
by billing and seeking reimbursement from them for the charge of
110% of the schedule of basic rates. This is the same amount that
Fidelity’s manual listed as the charge for a completed title insurance
policy, even though a policy had not yet been issued, and in many
cases, never would be issued if a foreclosure was cured or
cancelled.
F. Procedural History
¶ 19 After a lengthy investigation into defendants’ billing practices,
plaintiffs filed a civil enforcement action. Their 2014 complaint
cites to the former location of the CFDCPA, sections 12-14-101 to -
137, C.R.S. 2014. The CFDCPA was repealed and replaced in 2017
by sections 5-16-101 to -135, C.R.S. 2017. In this opinion, we cite
throughout to the current version of the CFDCPA which, as relevant
here, is not materially different.
8
¶ 20 The plaintiffs asserted the following claims:
 All defendants violated section 6-1-105(1)(l), C.R.S. 2017,
of the CCPA by making false or misleading statements
concerning the price of services claimed for title search
costs, title commitments, and court filing costs.
 The law firms and Hopp violated section 5-16-107(1)(b)(I),
C.R.S. 2017, of the CFDCPA by using false, deceptive, or
misleading representations in connection with the
collection of foreclosure-related debt.
 The law firms and Hopp violated section 5-16-108(1)(a),
C.R.S. 2017, of the CFDCPA by collecting amounts that
were not expressly authorized by the agreements
borrowers had signed creating their debt, or permitted by
law, and using unfair and unconscionable means to
collect that debt.
Plaintiffs sought a judgment against defendants for declaratory
relief, injunctive relief, disgorgement of unjustly obtained proceeds,
civil penalties, and attorney fees and costs. Defendants moved to
dismiss the action as untimely.
9
¶ 21 The district court issued numerous, detailed written orders in
this case. It denied defendants’ motion to dismiss for untimeliness
prior to trial. The court again addressed and rejected defendants’
arguments that plaintiffs’ claims were barred by the statute of
limitations set forth in the CFDCPA in its detailed written judgment.
¶ 22 The district court concluded that defendants, with the
exception of Lori Hopp, violated the CCPA in their invoicing for
foreclosure commitments ordered from the affiliated title
companies. It ruled that the law firms knowingly made “false and
misleading statements of fact concerning the price of foreclosure
commitments by charging for and collecting policy premium
amounts shortly after the initiation of the foreclosure proceeding
and by representing that these costs were actually incurred.” In
doing so, the court credited the testimony that emphasized that a
title premium charge was not earned unless a policy was issued.
¶ 23 The trial court further concluded that Hopp and the law firms
violated the CFDCPA by using “false, deceptive, and misleading
representations in connection with the collection of homeowners’
debt because they falsely represented the 110% policy premium
amount as an actual, necessary, reasonable, and actually incurred
10
cost, when that amount was not actually incurred by the Hopp law
firms.” Hopp directed the law firms to invoice these amounts to
servicers, knowing they would be ultimately charged to
homeowners.
¶ 24 However, the district court concluded that the State failed to
prove its CCPA claim alleging Hopp and the law firms engaged in
deceptive trade practices when they collected a full title policy
premium from servicers, but paid nothing — neither a policy
premium nor a cancellation fee — when it ordered title
commitments through a nonaffiliated title agency.
¶ 25 The district court declined to exercise its discretion to order
disgorgement, based on its finding that the State failed to present
trustworthy and reliable evidence that its calculations reasonably
approximated the amount of defendants’ unjustly obtained gains.
¶ 26 The court entered a permanent injunction prohibiting Hopp,
his law firms, or any other persons or entities acting under their
control, or in concert with them, from engaging in any of the
conduct that was the subject of the case, “including claiming
against homeowners in foreclosure a policy premium for a
foreclosure commitment before that cost is actually incurred.” The
11
district court imposed penalties on defendants under the CCPA,
which were capped by statute at $500,000. It further imposed
penalties on Hopp and the law firms in the amount of $1,374,600
under the CFDCPA. Upon consideration of defendants’ motion to
amend its judgment pursuant to C.R.C.P. 59, the district court
reduced the penalties imposed under the CFDCPA to a total of
$124,200. Because the statutory amendment allowing penalties
was not effective until July 1, 2011, the district court recalculated
the total penalty amount to include only transactions occurring
after the effective date. Ch. 121, sec. 5, § 12-14-135, 2011 Colo.
Sess. Laws 382; sec. 7, 2011 Colo. Sess. Laws at 382. The district
court further awarded the State its reasonable costs and attorney
fees incurred in enforcing the CCPA and CFDCPA. Defendants
appeal the district court’s award of plaintiffs’ attorney fees and
costs in a separate case, State v. Hopp, 2018 COA 71, also
announced today.
II. Statute of Limitations for Penalties
¶ 27 Defendants contend the trial court erred by imposing penalties
under the CCPA and the CFDCPA because they were barred by the
one-year limitation period set forth in section 13-80-103(1)(d),
12
C.R.S. 2017, as well as section 5-16-113(5), C.R.S. 2017 (CFDCPA
claims), and section 6-1-115, C.R.S. 2017 (CCPA claims). We
disagree.
A. Standard of Review and Statute of Limitations
¶ 28 “When a claim accrues under a statute of limitations is an
issue of law. We review de novo a trial court’s application of the
statute of limitations where the facts relevant to the date on which
the statute of limitations accrues are undisputed.” Kovac v.
Farmers Ins. Exch., 2017 COA 7M, ¶ 13 (citation omitted).
B. Background
¶ 29 Defendants moved to dismiss plaintiffs’ claims against them,
arguing they were time barred under section 5-16-113(5). Section
5-16-113(5) is contained in a section of the CFDCPA which
establishes a private cause of action and is titled “Civil Liability.” It
requires that any action be brought within one year of the date of
the violation. A separate section of the CFDCPA provides for
government enforcement actions. § 5-16-127, C.R.S. 2017.
¶ 30 The trial court relied on analogous federal authority applying
the federal Fair Debt Collection Practices Act, which limited the
application of the comparable statute of limitations provision set
13
forth within its private action section to private causes of action
only, not to government enforcement actions. It then reasoned that,
because the administrator charged with enforcement of the
CFDCPA is the administrator of the Uniform Consumer Credit Code
(UCCC), the power of the administrator arises from the UCCC, and
the statute of limitations set forth in the CFDCPA does not apply to
governmental enforcement actions. The trial court rejected
defendants’ alternate arguments that the one-year statute of
limitations from the catchall section 13-80-103(1)(d) should apply,
because it was more general than any specific limitation provisions
contained within the UCCC, which it concluded controlled here.
Accordingly, the court denied defendants’ motion to dismiss the
action as untimely, but did not articulate what it concluded the
applicable statute of limitations for the CCPA and CFDCPA claims
would be.
¶ 31 On appeal, defendants contend the one-year limitation period
set forth within the general catchall section 13-80-103(1)(d) should
be applied, because, regardless of the theory on which the suit is
brought, it states it includes “[a]ll actions for any penalty or
forfeiture of any penal statutes.” Defendants argue that plaintiffs’
14
CCPA and CFDCPA claims are barred under a one-year statute of
limitations because the underlying conduct for the action occurred
more than one year before the action was filed. While we agree with
the trial court’s conclusion that plaintiffs’ CCPA and CFDCPA
claims were not barred by the statute of limitations, we do so on
different grounds, and do not apply the UCCC.
¶ 32 The CCPA contains a specific three-year statute of limitations.
§ 6-1-115. As relevant here, it allows the three-year period to
accrue on the “date on which the last in a series of such acts or
practices occurred . . . .” Id. “In the absence of a clear expression
of legislative intent to the contrary, a statute of limitations
specifically addressing a particular class of cases will control over a
more general or catch-all statute of limitations.” Mortg. Invs. Corp.
v. Battle Mountain Corp., 70 P.3d 1176, 1185 (Colo. 2003).
¶ 33 Because the CCPA contains a statute of limitations specifically
addressing cases brought under its provisions, the three-year
statute of limitations controls over the more general section 13-80-
103(1)(d). See Jenkins v. Haymore, 208 P.3d 265, 268 (Colo. App.
2007) (“When choosing between statutes that govern limitation
periods, courts employ three rules: (1) the more specific statute
15
applies; (2) a later enacted statute controls over an earlier enacted
statute; and (3) courts should select the statute that provides the
longer limitation period.”), aff’d on other grounds sub nom. Jenkins
v. Panama Canal Ry. Co., 208 P.3d 238 (Colo. 2009). As the series
of acts underlying the CCPA claim extended into 2013, plaintiffs’
claims filed on December 19, 2014, were timely filed within the
three-year period.
C. CFDCPA
¶ 34 In 2017, the legislature passed a law creating a two-year
limitations period for administrator actions from the date on which
a violation allegedly occurred. S.B. 17-215, 71st Gen. Assemb., 1st
Reg. Sess. (May 1, 2017). However, during the years in question for
this case, the CFDCPA did not include a clear statute of limitations
for government enforcement actions brought under the CFDCPA.
¶ 35 Defendants argue that the court should have applied the
statute of limitations for private actions appearing in section 5-16-
113(5), which provides for a one-year limitations period “from the
date on which the violation occurs.” However, for several reasons,
we are not persuaded that the legislature clearly intended this
period to apply to government enforcement actions.
16
¶ 36 When the former version of section 5-6-113 (previously section
12-14-113(4), C.R.S. 2014) was enacted in 1985, statutes of
limitation generally did not apply to actions brought by the
government under the doctrine of nullum tempus occurrit regi, the
English common law rule that “time does not run against the king”
absent an express statement by the legislature otherwise. See
Shootman v. Dep’t of Transp., 926 P.2d 1200, 1202-03 (Colo. 1996).
It was not until 1996 that the supreme court, in Shootman,
concluded that the doctrine of nullum tempus no longer applied in
Colorado. Id. When the one-year statute of limitations was
enacted, it was located in a section of the statute addressing actions
brought by private parties. Ch. 218, sec. 7, § 12-14-113, 2000
Colo. Sess. Laws 938. It included no express language indicating it
was also intended to apply to government actions. Id.
¶ 37 “The statute of limitation in effect when a cause of action
accrues governs the time within which a civil action must be
commenced.” Samples-Ehrlich v. Simon, 876 P.2d 108, 111 (Colo.
App. 1994). Because the CFDCPA did not contain a clear statute of
limitations applying to government enforcement actions at the times
relevant to this action, a catch-all provision applies. Mortg. Invs.
17
Corp., 70 P.3d at 1185. Section 13-80-102(1)(i), C.R.S. 2017, sets
forth a two-year statute of limitations for “[a]ll other actions of every
kind for which no other period of limitations is provided,” while
section 13-80-103(1)(d) lists a one-year statute of limitations for all
actions “for any penalty or forfeiture of any penal statutes.” For
actions falling under either statute, a discovery rule applies.
Section 13-80-108(3), C.R.S. 2017, provides that “[a] cause of action
for fraud, misrepresentation, concealment, or deceit shall be
considered to accrue on the date such fraud, misrepresentation,
concealment, or deceit is discovered or should have been discovered
by the exercise of reasonable diligence.”
¶ 38 The trial court found that “plaintiffs did [not] and could not
have discovered the conduct at issue until January 2014, at the
earliest.” In January 2014, plaintiffs received, for the first time,
information provided by the law firms and National Title in response
to investigative subpoenas regarding the types of title products
defendants provided during foreclosure proceedings. Plaintiffs did
not request or receive any information from First National Title
Residential before filing their complaint in December 2014.
Importantly, the trial court also found that defendants presented no
18
evidence to dispute this date of discovery. Thus, plaintiffs’ action,
filed in December 2014, was filed within one year of plaintiffs’
discovery of defendants’ acts underlying the CFDCPA claims.
¶ 39 Because plaintiffs’ action was timely filed under either the
one-year statute of limitations set forth in section 13-80-103, or the
two-year statute of limitations within section 13-80-102, we need
not decide which catchall provision should have been applied to
plaintiffs’ CFDCPA claims. We conclude the trial court did not err
in concluding that the CFDCPA claims were timely filed, albeit on
different grounds.
III. Foreclosure Commitment Charges
¶ 40 Defendants contend the trial court erred when it concluded
that they violated the CCPA and the CFDCPA by charging 110% of
the schedule of basic rates for foreclosure commitment required by
Fidelity’s rates on file with the DOI. Specifically, defendants argue
that the filed rate doctrine precludes a finding of liability for
charging amounts which they contend were in compliance with
Fidelity’s filed rates. The filed rate doctrine limits judicial review of
rates approved by regulatory agencies. Maxwell v. United Servs.
Auto. Ass’n, 2014 COA 2, ¶ 62.
19
¶ 41 Plaintiffs argue that the trial court correctly concluded that
the filed rate doctrine does not apply. Plaintiffs contend that
defendants did not charge amounts in compliance with Fidelity’s
filed rates for a foreclosure commitment because it required
payment from the servicers for the amount chargeable for a title
commitment resulting in the issuance of a title insurance policy,
even when a title insurance policy was never issued. We agree with
plaintiffs and the trial court.
A. Standard of Review
¶ 42 We review the district court’s determination of questions of law
under C.R.C.P. 56(h), including the application of the filed rate
doctrine, de novo. Maxwell, ¶ 61.
¶ 43 We also review the interpretation of an agency’s rules and
regulations de novo. See City & Cty. of Denver v. Gutierrez, 2016
COA 77, ¶ 11. “We construe an administrative regulation or rule
using rules of statutory interpretation. We read the provisions of a
regulation together, interpreting the regulation as a whole.”
Schlapp ex rel. Schlapp v. Colo. Dep’t of Health Care Policy & Fin.,
2012 COA 105, ¶ 9. We look first to the regulation’s plain language
and, if it is unambiguous, we need not apply other canons of
20
construction. Rags Over the Ark. River, Inc. v. Colo. Parks & Wildlife
Bd., 2015 COA 11M, ¶ 28.
¶ 44 We review the court’s findings of fact for clear error, and do
not disturb them unless they are unsupported by the record. Jehly
v. Brown, 2014 COA 39, ¶ 8.
B. Law
¶ 45 A party in a civil action may move for determination of a
question of law at any time after the last required pleading, and “[i]f
there is no genuine issue of any material fact necessary for the
determination of the question of law, the court may enter an order
deciding the question.” C.R.C.P. 56(h). This allows the court to
address an issue of law which has a significant impact on how
litigation of a case will proceed, but which is not dispositive of a
claim and does not warrant summary judgment. In re Bd. of Cty.
Comm’rs, 891 P.2d 952, 963 n.14 (Colo. 1995).
¶ 46 “[The filed rate doctrine] precludes a challenge to a regulated
entity’s rates filed with any governmental agency — state or federal
— having regulatory authority over the entity.” Maxwell, ¶ 63.
There are two rationales for the doctrine: first, to prevent insurers
from discriminating in its charges amongst ratepayers, and, second,
21
to recognize the exclusive role of agencies in rate approval by
deferring to their authority and expertise. Id. at ¶¶ 64-65.
C. Analysis
¶ 47 Before trial, defendants filed a motion for a determination as a
matter of law, seeking a ruling that their actions in charging the
servicers 110% of the basic rate for foreclosure commitments and
including that same charge in bid and cure statements complied
with Colorado law. The trial court reframed the question for proper
consideration under C.R.C.P. 56(h) as “[w]hat are the appropriate
rates and charges for a foreclosure commitment under Section I-16
of Fidelity’s Title Insurance Rates and Charges for the State of
Colorado?”
¶ 48 After reviewing Fidelity’s manual, the trial court ruled as
follows:
A title commitment represents the title
insurance company’s agreement to insure the
property against all liens and encumbrances
upon, defects in, and unmarketability of the
title to the real property. Fidelity’s Manual
provides that ‘a commitment will be issued
only as an incident to the issuance of a title
policy for which a charge is made.’ A title
policy does not issue if a foreclosure sale is not
held. Thus, a basic requirement for the
22
issuance of a policy is the completion of a
foreclosure sale.
It concluded that the charge of 110% of the schedule of basic rates
applied only to a title commitment which resulted in the ultimate
issuance of a title insurance policy. Otherwise, the language of
section I-16 limited the chargeable amount for a foreclosure
commitment that did not result in the issuance of a title insurance
policy to a cancellation fee of $300 to $750, based upon the amount
of work performed. The trial court drew further support for its
conclusion from section A-6.1 of the manual, which stated, “a
commitment will be issued only as an incident to the issuance of a
title policy for which a charge is made.” (Emphasis added.) The
trial court interpreted this language as confirmation that a
commitment is not a “stand-alone title product.”
¶ 49 Defendants argue that the trial court erred in its interpretation
of Fidelity’s manual. They cite to the DOI regulations in effect
during the years at issue, which provided that it was a per se
unlawful inducement proscribed by section 10-11-108, C.R.S.
2017, to
4. [furnish] a title commitment without charge
or at a reduced charge, unless, within a
23
reasonable time after the date of issuance,
appropriate title insurance coverage is issued
for which the scheduled rates and fees are
paid. Any title commitment charge must have
a reasonable relation to the cost of production
of the commitment and cannot be less than
the minimum rate or fee for the type of policy
applied for, as set forth in the insurer’s current
schedule of rates and fees[;]
....
8. [charge] less than the scheduled rate or fee
for a specified title or closing and settlement
service, or for a policy of title insurance[;]
[or]
9. [waive, or offer] to waive, all or any part of
the title entity’s established rate or fee for
services which are not the subject of rates or
fees filed with the Commissioner or are
required to be maintained on the entity’s
schedule of rates or fees.
Div. of Ins. Reg. 3-5-1, § 6(A), 3 Code Colo. Regs. 702-3 (effective
Oct. 1, 2007-Jan. 1, 2010); see also Div. of Ins. Reg. 8-1-3,
§ 5(D)(2), (7)-(8), 3 Code Colo. Regs. 702-8.
¶ 50 Construing the regulations according to their plain language,
we conclude that the regulations merely prohibit a title company
from providing a title commitment for free or for a reduced charge
unless title insurance coverage is issued within a reasonable time
for which the scheduled rate is charged. This language further
24
supports the trial court’s interpretation that a title commitment
cannot be sold as a stand-alone product. Either a title commitment
can be ordered that results in a title insurance policy, or a title
commitment can be canceled. Neither the regulations nor Fidelity’s
manual provided for a third option, in which a title commitment
that did not result in the issuance of a title policy would be sold for
110% of the basic rate schedule, or any other amount.
¶ 51 Defendants misperceive the basis of plaintiffs’ claims and the
trial court’s ruling, which does not implicate the filed rate doctrine.
¶ 52 Plaintiffs did not challenge the reasonableness or propriety of
the rates set forth in Fidelity’s manual, nor did the trial court
conclude that defendants were liable for charging rates for services
in compliance with Fidelity’s rates filed with the DOI. Rather, the
trial court concluded that defendants charged servicers, and, thus,
homeowners seeking to cure defaults, rates for a service they did
not, in most cases, ultimately provide.
¶ 53 Defendants represented that they actually incurred the full
cost of a title insurance premium, at 110% of the basic rates
schedule, when they invoiced servicers for that amount and listed
that amount on cure statements and collected payments at that
25
rate. However, in most cases they only ordered a title commitment,
for which a title insurance policy would never be issued. The trial
court further concluded that defendants knew that in most
nonjudicial foreclosures, the foreclosure would be withdrawn prior
to sale, and therefore a title insurance policy would never be issued.
¶ 54 The trial court’s findings were supported by evidence provided
by both sides at trial.
¶ 55 Hopp testified that he and his law firms only charged the full
amount for a title insurance policy and never a cancellation fee in
advance for a foreclosure commitment. He further testified that
even when a borrower cured a default, the law firms had no
responsibility to refund any amount received for a title insurance
policy, even though no policy would ever issue. Absent explicit
direction from a servicer to cancel a title commitment, he and his
firms did not do so. This was true even when Hopp and the law
firms were aware that a foreclosure had been cured or withdrawn,
because they were given instructions from the servicer to withdraw
the foreclosure filed with the public trustee.
¶ 56 Hopp’s interpretation of his role and that of his law firms in
the cancellation process was at odds with the other evidence
26
presented at trial. Plaintiffs’ expert on title insurance testified that,
while a title agent might invoice the full amount of a title policy
upon ordering a title commitment, if the client paid that full amount
in advance, the title agent was required to deposit the funds into a
trust or escrow account because the funds were unearned
premiums until a title policy was issued. While he acknowledged
that cancellation of a title commitment was an affirmative act that a
client must perform, if the requirements for issuing a title policy
had not been met during the twenty-four month hold-open period,
the agent was responsible for determining the status of the
foreclosure through searching public records or communication
with his or her client. If conditions for issuing the policy had not
been met, the agent was required to refund the premium, less the
cancellation fee to the client.
¶ 57 The vice president for title agency Fidelity National Title
Company (a distinct entity from Fidelity, the underwriter) testified
that when a foreclosure commitment was ordered, it was the
company’s practice to charge “a fee up front based on the amount of
work that’s gone into that product and with the anticipation that it
has a high probability of cancelling before it finishes.” This
27
amount, in most cases, was $300. Fidelity National Title Company
did not charge 110% of the basic rates schedule in anticipation of
issuing a title insurance policy, and only did so if a deed of trust
was actually foreclosed and a policy was issued.
¶ 58 We also note that, during oral argument, while defendants’
counsel argued that the fee was earned at the inception of a
foreclosure case, he also conceded that if a mortgage servicer client
had specifically requested the cancellation of the title commitment,
the client would have been entitled to a refund of the fee charged
minus the applicable cancellation fee. These contentions are
inconsistent. If the title premium charge was fully earned at the
time it was charged, a request for its cancellation would not have
entitled the client to a full refund of the charge, minus the
contractually established cancellation fee.
¶ 59 Because the evidence presented at trial supported the trial
court’s finding that defendants misrepresented the premium
charges as actually incurred costs when they had only ordered title
commitments, the trial court did not err.
28
IV. Knowingly/Bad Faith
¶ 60 Defendants contend the trial court erred when it concluded
that they knowingly engaged in a deceptive trade practice. We
disagree.
A. Standard of Review
¶ 61 As stated in Part II.A, supra, we review the court’s findings of
fact for clear error, and do not disturb them unless they are
unsupported by the record. Jehly, ¶ 8.
B. Law
¶ 62 To establish a violation of the CCPA, a plaintiff must show the
defendant knowingly engaged in a deceptive trade practice. Crowe
v. Tull, 126 P.3d 196, 204 (Colo. 2006). “[T]he element of intent is a
critical distinction between actionable CCPA claims and those
sounding merely in negligence or contract. Gen. Steel Domestic
Sales, LLC v. Hogan & Hartson, LLP, 230 P.3d 1275, 1282 (Colo.
App. 2010). Misrepresentation caused by negligence or an honest
mistake is a defense to a CCPA claim. Crowe, 126 P.3d at 204.
¶ 63 While “knowingly” is not expressly defined within the CCPA,
the supreme court has addressed the intent requirement for a CCPA
claim. See Rhino Linings USA, Inc. v. Rocky Mountain Rhino Lining,
29
Inc., 62 P.3d 142, 147 (Colo. 2003). It defined a misrepresentation
as a false or misleading statement made “either with knowledge of
its untruth, or recklessly and willfully made without regard to its
consequences, and with an intent to mislead and deceive [another].”
Id. (quoting Parks v. Bucy, 72 Colo. 414, 418, 211 P. 638, 639
(1922)).
¶ 64 In determining civil penalties for a violation of the CCPA, a
court should also consider the good or bad faith of the defendant.
People v. Wunder, 2016 COA 46, ¶ 49.
C. Analysis
¶ 65 Here, the trial court’s finding that defendants acted knowingly
was supported by the following evidence in the record:
 The law firms levied the 110% charge for a future policy
that Hopp acknowledged more than likely would never be
issued.
 The law firms obtained reimbursement of full title policy
premiums, even though Hopp acknowledged that a policy
usually was not issued.
30
 The law firms and the affiliated title companies worked
together to overbill and fail to cancel foreclosure
commitments for withdrawn foreclosures.
 The law firms and the title companies never cancelled
foreclosure commitments, even when they knew a
foreclosure had been withdrawn.
¶ 66 This evidence belies defendants’ contention that they acted in
good faith reliance on their reasonable interpretation that they were
charging in accordance with Fidelity’s filed rates.
V. Duplicative Civil Penalties
¶ 67 Defendants contend the trial court erred in imposing civil
penalties under the CCPA and the CFDCPA for the same underlying
acts. The complaint gave defendants sufficient notice that plaintiffs
sought penalties under both statutes based upon the same
conduct. Yet, defendants did not raise this argument before the
trial court before it entered its order imposing penalties under both
statutes, nor did it raise this argument post trial in any manner
until it filed its brief on appeal. We do not consider issues raised
for the first time on appeal. See Estate of Stevenson v. Hollywood
31
Bar & Cafe, Inc., 832 P.2d 718, 721 n.5 (Colo. 1992). Accordingly,
we decline to consider defendants’ argument.
VI. Exhibit 103
¶ 68 Defendants argue the trial court abused its discretion when it
admitted plaintiffs’ Exhibit 103 and relied on it in assessing civil
penalties against defendants. We reject this contention.
A. Standard of Review
¶ 69 We review the trial court’s evidentiary rulings for an abuse of
discretion. See, e.g., Sos v. Roaring Fork Transp. Auth., 2017 COA
142, ¶ 48. “A district court abuses its discretion where its decision
is manifestly arbitrary, unreasonable, or unfair, or contrary to law.”
Id.
B. Facts
¶ 70 Exhibit 103 is a 1114-page spreadsheet compiling electronic
invoicing data submitted by Hopp’s law firms through a billing
software to the servicers from 2008 until the time of trial.
BlackKnight Financial Services, formerly LPS, prepared the
spreadsheet. Hopp explained that LPS is a software provider, or
“data aggregator” that served as a web-based interface between law
firms and servicers for billing and payment. Hopp’s wife testified
32
that she used the LPS system to bill for the law firms. After logging
into the system, she entered data such as the servicer or client who
was being invoiced, file information for the borrower, and selected
the costs being billed using drop-down menus.
¶ 71 The director of software development at BlackKnight testified
about the creation of Exhibit 103. He explained that vendors,
including the law firms, submitted an invoice into a mainframe
application, which sent the data to its invoicing system,
LoanSphere, for mortgage servicers to access. He testified that
Exhibit 103 was a spreadsheet created from the production data
from LoanSphere showing data submitted by the law firms. The
spreadsheet showed the name of the vendor, or law firm; the loan
numbers for the invoices; the invoice number assigned when the
data was entered into the system; the department description; the
date the invoice was submitted into LoanSphere; the category and
subcategory of the line item on the invoice; the quantity; and the
item price tied to the line item. It also had columns showing the
paid amount, status of payment, and date that a check was created
by the servicer. While certain fields such as the dates the invoices
were entered into the system were autopopulated, a law firm’s
33
representative entered the item price and category and subcategory
for each item. The trial court admitted the spreadsheet as a
business record over defendants’ objection. It ruled that the exhibit
was alternatively admissible as a summary under CRE 1006. In its
judgment, the trial court noted that plaintiffs’ investigator used
spreadsheets provided by LPS, including Exhibit 103, to determine
what the law firms billed servicers for foreclosure commitments in
2291 transactions which did not match a loan number where a
policy was ultimately provided.
¶ 72 Addressing Exhibit 103, the court also indicated that
“[b]ecause of the lack of verification of the entries in Plaintiffs’
Exhibit 103, the Court places little weight on the exhibit.” The
court clarified in a post-trial order that its concern with the exhibit
related to entries in the spreadsheet designating a “check
confirmed” status regarding whether an invoice had been paid by a
servicer to the law firms. The trial court reiterated that it
“comfortably relied on this exhibit in determining 2,291
representations and calculating the penalties.”
34
C. Business Record Exception to Hearsay
¶ 73 Hearsay is an out-of-court statement made by someone other
than the declarant while testifying at trial, which is offered to prove
the truth of the matter asserted. CRE 801(c). Hearsay is
inadmissible unless it falls within a statutory exception or an
enumerated exception in CRE 803 or 804. CRE 802.
¶ 74 CRE 803(6) allows evidence to be admitted under the business
record exception to the hearsay rule if the following conditions are
met:
(1) the document must have been made “at or
near” the time of the matters recorded in it; (2)
the document must have been prepared by, or
from information transmitted by, a person
“with knowledge” of the matters recorded; (3)
the person or persons who prepared the
document must have done so as part of a
“regularly conducted business activity”; (4) it
must have been the “regular practice” of that
business activity to make such documents;
and (5) the document must have been retained
and kept “in the course of” that, or some other,
“regularly conducted business activity.”
Schmutz v. Bolles, 800 P.2d 1307, 1312 (Colo. 1990) (quoting White
Indus. v. Cessna Aircraft Co., 611 F. Supp. 1049, 1059 (W.D. Mo.
1985)). If the record is a compilation of data, and the original data
was prepared in compliance with the above conditions, the fact that
35
the data was compiled into a spreadsheet or document for litigation
does not affect its admissibility. People v. Ortega, 2016 COA 148,
¶ 15 (“[I]n the context of electronically-stored data, the business
record is the datum itself, not the format in which it is printed out
for trial or other purposes.” (quoting United States v. Keck, 643 F.3d
789, 797 (10th Cir. 2011))); People v. Flores-Lozano, 2016 COA 149,
¶ 15; Florez-Lozano, ¶ 25 (Bernard, J., specially concurring).
D. Analysis
¶ 75 The trial court correctly concluded that the foundational
requirements for admitting the spreadsheet as a business record
had been met. The BlackKnight representative testified that the
entries into the invoicing system were made at the time a
representative of the law firms entered it into the mainframe
application. Hopp and his wife both confirmed this process in their
testimony. The data entered was within the knowledge of the law
firms, and kept in the course of their regularly conducted business,
which was representing loan servicers in foreclosure cases. It was
the law firms’ regular practice to create a record of invoiced items
through LPS and to retain those records.
36
¶ 76 Thus, the trial court did not abuse its discretion when it
admitted Exhibit 103 as a business record under CRE 803(6).
Because we conclude the trial court did not abuse its discretion in
admitting the exhibit on that basis, we need not consider whether it
would have been properly admitted as a summary under CRE 1006.
VII. Exhibit 1093
¶ 77 Plaintiffs contend on cross-appeal that the trial court abused
its discretion when it admitted defendants’ Exhibit 1093 to rebut
plaintiffs’ Exhibit 104. We disagree.
A. Background
¶ 78 At times, servicers directed the law firms to order foreclosure
commitments from LSI Default Title and Closing, also known as LSI
Title Agency, a division of LPS, instead of from one of Hopp’s
affiliated title companies. During discovery, defendants produced to
plaintiffs an invoicing statement from LSI (Exhibit 104), dated
September 4, 2015. Exhibit 104 showed that, on 1186 foreclosure
files, in which Hopp and the law firms collected a full title policy
premium from servicers, they paid nothing — neither a policy
premium nor a cancellation fee — to LSI for title commitments
ordered. Exhibit 104 reflected that LSI appeared to charge
37
defendants only $350 for title commitments ordered, which was
representative of a cancellation fee.
¶ 79 Plaintiffs amended their complaint to add claims against
defendants for violating the CCPA and CFDCPA through its conduct
with regard to the LSI transactions. In its written notice of claim
filed with the court adding the claim, plaintiffs alleged that the
invoices from title commitments ordered from LSI included the
eventual price for issuance of a title policy. At trial, plaintiffs
argued, consistently with the data in Exhibit 104, that LSI expected
to be paid only the cancellation fee amount on files where no title
insurance policy was issued, and that Hopp and the law firms had
paid LSI nothing.
¶ 80 The controller of accounting for the successor company to LSI
testified that Exhibit 104 showed the charges due as of September
4, 2015, the date the exhibit was printed, which incorporated any
adjustments made before that date. He testified that at some point
in “roughly mid 2015,” his team was asked by LSI’s internal
operations department to amend numerous charges to $350, which
appeared to be inconsistent with the invoices provided to the law
firms.
38
¶ 81 Defendants introduced an email from an LSI representative to
Hopp’s wife, which included an attached spreadsheet similar to
Exhibit 104, but dated December 3, 2014. This December 2014
spreadsheet, Exhibit 1093, showed charges for full policy premiums
rather than outstanding charges of $350, which were representative
of cancellation fees. Plaintiffs objected to the admission of Exhibit
1093. Their counsel argued, “One, I don’t think there’s a sufficient
foundation that [the controller] has knowledge of this document.
Two, we’ve never seen this before. This makes two documents in a
row that I’ve received for the first time at the witness table. It
makes it very difficult to review them.” Defendants urged the trial
court to admit the exhibit under CRE 613 for impeachment. The
trial court admitted the exhibit without explaining its decision.
¶ 82 After considering both exhibits, and the “unusual and
unexplained adjustments on Plaintiffs’ Exhibit 104,” which were
demonstrated through the controller’s testimony and discrepancies
between Exhibit 104 and Exhibit 1093, the trial court declined to
place any weight on Exhibit 104 in its final order, and concluded
that plaintiffs had failed to prove their claim based on the LSI
transactions.
39
B. Disclosure
¶ 83 Plaintiffs argue that C.R.C.P. 26 required defendants to
disclose Exhibit 1093. We disagree.
¶ 84 C.R.C.P. 26, as it appeared during the years at issue, required
parties, as part of their mandatory disclosures, to identify and
provide documents “relevant to disputed facts alleged with
particularity in the pleadings.” C.R.C.P. 26(a)(1)(B) (2014). Under
the rule then in effect, a party was obligated to supplement its
disclosures made if it learned that the information previously
disclosed was incomplete or incorrect in some material respect and
the additional information had not otherwise been made known to
the other parties during discovery. C.R.C.P. 26(e) (2014).
¶ 85 We review a trial court’s ruling on a discovery issue and
decision whether to impose any sanction for an abuse of discretion.
See, e.g., Pinkstaff v. Black & Decker (U.S.) Inc., 211 P.3d 698, 702
(Colo. 2009). “A trial court abuses its discretion if its decision is
manifestly arbitrary, unreasonable, or unfair.” Id.
¶ 86 The LSI claim was not part of plaintiffs’ original complaint.
Rather, it was added after disclosure of Exhibit 104 in the discovery
process, after discovery had closed and mere weeks before the trial
40
began. The written notice of claim alleged that LSI expected to be
paid a cancellation fee of $350 at the outset of billing for a
foreclosure commitment, not full title insurance policy premiums.
¶ 87 Even if we assume that defendants should have identified
Exhibit 1093 as a required supplement to its previous disclosures,
upon plaintiffs’ addition of the LSI claim to their complaint, the
decision of what, if any, sanction to impose on defendants for their
failure to do so was well within the trial court’s discretion. If the
trial court decides that a sanction is warranted for a discovery
violation, it should “impose the least severe sanction that will
ensure there is full compliance with a court’s discovery orders and
is commensurate with the prejudice caused to the opposing party.”
¶ 88 A trial court does not err in declining to impose sanctions for a
discovery violation if the failure to disclose was harmless. Trattler v.
Citron, 182 P.3d 674, 679-80 (Colo. 2008). In evaluating
harmlessness,
the inquiry is not whether the new evidence is
potentially harmful to the opposing side’s case.
Instead, the question is whether the failure to
disclose the evidence in a timely fashion will
prejudice the opposing party by denying that
party an adequate opportunity to defend
against the evidence.
41
Todd v. Bear Valley Vill. Apartments, 980 P.2d 973, 979 (Colo.
1999).
¶ 89 Here, given the late addition of the LSI claim, and the
parameters of the claim set forth in the plaintiffs’ written notice, the
trial court did not abuse its discretion in declining to exclude
Exhibit 1093 as a sanction for defendants’ failure to supplement
their mandatory disclosures at a late point in litigation. While
Exhibit 1093 was arguably related to the claim and the data set
forth in Exhibit 104, plaintiffs only argue in a conclusory fashion
that failure to disclose Exhibit 1093 constituted a tactic of trial by
surprise.
¶ 90 Plaintiffs argue that, with proper disclosure of the exhibit, they
could have responded to and explained the evidence with an
appropriate witness from LSI. However, the LSI controller testified
at trial that his department had received and made changes to
numerous charges within the spreadsheet in the middle of 2015.
Plaintiffs had the opportunity to cross-examine the controller and
did so at trial. Accordingly, the trial court did not abuse its
discretion in declining to exclude Exhibit 1093 because defendants
did not disclose it prior to trial.
42
C. Trial Management Order
¶ 91 Plaintiffs further argue that C.R.C.P. 16(f)(5) precluded the
admission of Exhibit 1093 because it was not included in the trial
management order and the trial court failed to make necessary
findings to support its admission. We disagree for two reasons.
¶ 92 First, plaintiffs failed to preserve this argument in the trial
court and “[a]rguments never presented to, considered or ruled
upon by a trial court may not be raised for the first time on appeal.”
Estate of Stevenson, 832 P.2d at 721 n.5.
¶ 93 Second, while plaintiffs objected to the admission of Exhibit
1093 on the general basis that it was not disclosed to them before
trial, they did not argue that it conflicted with the trial management
order. In any event, plaintiffs cite to no authority, and we have
found none, that requires the trial court to sua sponte make
findings pursuant to C.R.C.P. 16 whenever it permits a deviation
from the trial management order. Accordingly, the trial court did
not abuse its discretion in failing to sua sponte make findings
under C.R.C.P. 16(f)(5) because plaintiffs’ objection on this
particular ground was not made known to the court.
43
D. Foundation
¶ 94 Plaintiffs argue that Exhibit 1093 lacked a sufficient
foundation because the controller did not have personal knowledge
necessary to authenticate it. We disagree.
¶ 95 Authentication is satisfied by “evidence sufficient to support a
finding that the matter in question is what its proponent claims.”
CRE 901(a). One way in which an exhibit may be authenticated is
through its “[a]ppearance, contents, substance, internal patterns, or
other distinctive characteristics, taken in conjunction with
circumstances.” CRE 901(b)(4). A division of this court has held
that emails may be authenticated through either testimony
explaining that they are what they purport to be or through
consideration of their distinctive characteristics shown by an
examination of their content and substance. See People v. Bernard,
2013 COA 79, ¶ 10.
¶ 96 Here, the controller testified that a member of the collections
team at his company sent the email to Lori Hopp; he recognized the
sender’s name and email address as it appeared on the email; he
recognized the sender’s email signature, which included the
company’s logo; and the attachment to the email was consistent
44
with collection statements the company sent out. Because the
controller could authenticate the email through its distinctive
characteristics, he was not required to have personal knowledge of
the document itself. Thus, he laid a sufficient foundation for the
admission of Exhibit 1093.
E. Impeachment Versus Rebuttal
¶ 97 To the extent that plaintiffs argue that Exhibit 1093 was
improperly considered for its substance, rather than just
impeachment, we disagree. While defendants offered Exhibit 1093
under CRE 613, the trial court’s ruling did not indicate that it
admitted the exhibit on that basis. The terms impeachment and
rebuttal are sometimes used interchangeably; impeachment
generally refers to proof a witness made statements inconsistent
with his or her present testimony. People v. Trujillo, 49 P.3d 316,
320 (Colo. 2002). Rebuttal, however, is contrary evidence — “that
which is presented to contradict or refute the opposing party’s
case.” Id. at 321. Rebuttal evidence is substantive in nature and
may support a party’s case-in-chief. Id. at 320. Here, Exhibit 1093
was admitted to contradict the data presented in Exhibit 104.
Accordingly, it was admitted as rebuttal evidence, and the trial
45
court did not abuse its discretion when it considered Exhibit 1093
for its substance, rather than limiting its consideration to
impeachment.
VIII. Appellate Attorney Fees
¶ 98 Both parties request an award of their attorney fees and costs
incurred in this appeal. We agree that, under section 6-1-113(4),
C.R.S. 2017, and section 5-16-133, C.R.S. 2017, plaintiffs are
entitled to an award of their reasonable appellate attorney fees. See
Payan v. Nash Finch Co., 2012 COA 135M, ¶ 63 (extending CCPA
provision awarding attorney fees to party successfully defending
trial court’s judgment on appeal). The amount of appellate attorney
fees awarded should not include any fees incurred in the pursuit of
plaintiffs’ cross-appeal, as they were unsuccessful on that issue in
the district court and on appeal. We exercise our discretion under
C.A.R. 39.1 to remand this issue to the trial court to determine the
total amount of plaintiffs’ reasonable fees and costs incurred on
appeal, with the limitations specified, and to award those amounts.
¶ 99 Defendants’ request for appellate attorney fees is denied.
46
IX. Conclusion
¶ 100 We affirm the district court’s judgment and remand the case
with directions to determine an award of plaintiffs’ reasonable
appellate attorney fees, less any fees incurred in the pursuit of
plaintiffs’ unsuccessful claim on cross-appeal.
JUDGE TAUBMAN and JUDGE HARRIS concur.
47