Colorado v. Center for Excellence

• Court: Colorado Court of Appeals
• Decided: December 24, 2025
• Docket: 20CA1692
• Status: Unpublished

Opinion

20CA1692 Colorado v Center for Excellence 12-24-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 20CA1692 City and County of Denver District Court No. 14CV34530 Honorable Ross B.H. Buchanan, Judge Honorable Andrew J. Luxen, Judge

State of Colorado, ex rel.; Philip J. Weiser, as Attorney General of the State of Colorado; and Martha Fulford, as Administrator of the Uniform Consumer Credit Code,

Plaintiffs-Appellees and Cross-Appellants,

v.

Center for Excellence in Higher Education, Inc., a not-for-profit company; CollegeAmerica Denver, Inc.; CollegeAmerica Arizona, Inc., divisions thereof d/b/a CollegeAmerica; Stevens-Henager College, Inc., a division thereof d/b/a Stevens-Henagar College; CollegeAmerica Services, Inc., a division thereof; Carl Barney, Chairman of Center for Excellence in Higher Education, Inc., and Trustee of the Carl Barney Living Trust; The Carl Barney Living Trust; and Eric Juhlin, Chief Executive Officer of Center for Excellence in Higher Education, Inc.,

Defendants-Appellants and Cross-Appellees.

JUDGMENTS AFFIRMED

Division A Opinion by JUDGE BERNARD* Román, C.J., and Tow, J., concur

Prior Opinion Announced August 26, 2021, Affirmed in Part and Reversed in Part in 21SC781

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 24, 2025 Philip J. Weiser, Attorney General, Shannon Stevenson, Solicitor General, Russell D. Johnson, Deputy Solicitor General, Brady J. Grassmeyer, Senior Assistant Attorney General, Hanah M. Harris, Senior Assistant Attorney General, Sarah Donahue, Assistant Attorney General II, Denver, Colorado, for Plaintiffs-Appellees and Cross-Appellants

Connelly Law LLC, Sean Connelly, 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. 2025. ¶1 In late 2014, Colorado’s Attorney General and the

Administrator of the Uniform Consumer Credit Code, whom we

shall collectively refer to as “the Attorney General,” sued corporate

entities, individuals, and a living trust that ran CollegeAmerica, a

for-profit educational operation. (CollegeAmerica had a presence in

other states as well as in Colorado, but all CollegeAmerica

campuses are now permanently closed.)

¶2 The corporate defendants were the Center for Excellence in

Higher Education, Inc., and its divisions: CollegeAmerica Denver,

Inc., and CollegeAmerica Arizona, Inc., d/b/a CollegeAmerica;

Stevens-Henager College, Inc., d/b/a Stevens-Henager College; and

CollegeAmerica Services, Inc. The individual defendants were Carl

Barney and Eric Juhlin. The living trust was the Carl Barney Living

Trust. We shall refer to the defendants collectively as

“CollegeAmerica” unless we need to identify them individually.

¶3 After a bench trial, the trial court entered judgment in the

Attorney General’s favor. CollegeAmerica and the Attorney General

appealed.

¶4 A division of this court affirmed the judgment in part, reversed

it in part, and remanded the case to the trial court for further

1 proceedings. State ex rel. Weiser v. Ctr. for Excellence in Higher

Educ., Inc., 2021 COA 117 (Center for Excellence I). Our supreme

court partially reversed the division. State ex rel. Weiser v. Ctr. for

Excellence in Higher Educ., Inc., 2023 CO 23 (Center for Excellence

II).

¶5 After reviewing Center for Excellence II, we remanded the case

for further proceedings and, after those proceedings, recertified the

case to this court. We now affirm the trial court’s and the remand

court’s judgments.

I. Background

¶6 The Attorney General alleged CollegeAmerica violated the

Colorado Consumer Protection Act, often called the CCPA, which we

shall shorten to “the Consumer Act,” and Colorado’s Uniform

Consumer Credit Code, often called the UCCC, which we will call

“the Credit Code.” In particular, the Attorney General alleged

CollegeAmerica

• “knowingly made false representations as to the state

governmental approval necessary to offer various

degrees and certifications,” in violation of section 6-1-

105(1)(b), C.R.S. 2014;

2 • “knowingly misrepresented the outcomes and benefits of

certain or all of [its] degree programs; the

characteristics and benefits of its loans and

scholarships; and the sponsorship, approval[,] or

affiliation necessary to offer certain degree programs

and certifications,” in violation of section 6-1-105(1)(e);

• “knew or should have known that [it had]

misrepresented the outcomes, value[,] and quality of

[its] various degree programs,” in violation of section 6-

1-105(1)(g);

• engaged in “bait and switch” advertising, in violation of

section 6-1-105(1)(n)(I), (II);

• did not disclose material information with the intent to

induce consumers to enroll as students, in violation of

section 6-1-105(1)(u);

• “failed to obtain the necessary authorization to offer

certain degree programs,” in violation of section 6-1-

105(1)(z); and

3 • engaged in fraudulent or unconscionable conduct in

inducing consumers to enter into loans, in violation of

the Credit Code, § 5-6-112, C.R.S. 2025.

¶7 As is pertinent to this appeal, the trial court dismissed part of

the bait-and-switch claim, it made a pretrial ruling that the

Attorney General would not be required to prove ‘significant public

impact’ to prevail on its Consumer Act claims, and it then held a

four-week bench trial beginning in 2017. The Attorney General filed

a proposed order.

¶8 In 2020, the trial court issued its written order and judgment,

deciding that all named defendants were jointly and severally liable

for violating the Consumer Act. It ordered them to pay $3 million in

civil penalties, and it issued detailed injunctions against

CollegeAmerica under both the Consumer Act and the Credit Code.

More specifically, the trial court, as is relevant to our analysis,

decided CollegeAmerica had violated the Consumer Act in six ways:

1) Claim One — making false or misleading representations

about the graduates’ expected earnings;

2) Claim Two — making false or misleading representations

about the graduates’ job placement rates;

4 3) Claim Three — making false or misleading representations

that the EduPlan made college affordable, though it also

found the EduPlan was not unconscionable;

4) Claim Four — knowingly misrepresenting the

characteristics, uses, and benefits of CollegeAmerica’s x-ray

training within the medical specialties curriculum to

become a limited scope operator, which we will shorten to

“LSO”;

5) Claim Five — knowingly making false and misleading

representations that CollegeAmerica’s medical specialties

program offered training to become an emergency medical

technician, which we will shorten to “EMT,” to prepare for

certification to be an EMT in Colorado; and

6) Claim Six — knowingly making false representations from

2010 to 2014 about the availability of a sonography degree

program at the Denver campus.

¶9 CollegeAmerica and the Attorney General appealed.

¶ 10 The corporate defendants contended that the trial court erred

when it (1) retroactively applied a 2019 amendment to the

Consumer Act, which eliminated the Attorney General’s obligation

5 to prove “significant public impact”; (2) deprived them of their right

to a jury trial; (3) allowed the Attorney General to pursue what was

essentially a claim for educational malpractice; (4) held the

corporate defendants liable for conduct that federal regulations

required, thus substituting its own policy judgments for those of the

federal regulators; (5) decided all the Consumer Act claims against

them; and (6) deprived them of their right to a fair process because

its ruling was long delayed and it incorporated much of the Attorney

General’s proposed order.

¶ 11 The individual defendants and the living trust asserted the

trial court erred when it (1) did not require the Attorney General to

prove significant public impact under the Consumer Act; (2) denied

them the right to a jury trial; (3) found Barney and Juhlin

personally liable when the evidence presented at trial did not

support the imposition of personal liability against either; and (4)

imposed liability against the living trust under an alter ego theory.

¶ 12 The Attorney General raised one error: The trial court should

have concluded, as a matter of law, that CollegeAmerica’s entire

EduPlan loan program, through which CollegeAmerica loaned

students money to pay for their educations, was unconscionable.

6 ¶ 13 In August 2021, a division of this court decided Center for

Excellence I. Specifically, it concluded

• it would reverse the trial court’s judgment and remand

the case for a new trial on the Consumer Act claims

because the trial court had erred when it decided the

Attorney General did not need to prove a significant

public impact under the Consumer Act, Center for

Excellence I, ¶¶ 54-46;

• CollegeAmerica did not have a right to a jury trial, id. at

¶ 71;

• the Attorney General’s Consumer Act claims were not

barred by the educational malpractice doctrine, id. at

¶ 81;

• CollegeAmerica’s use of national wage data in its

advertisements did not shield it from liability, id. at ¶ 89;

• the Attorney General did not have to prove all

CollegeAmerica’s EduPlan loans to students were

unconscionable, id. at ¶ 112; and

7 • the case had to be assigned to a different judge on

remand because of the court’s long delay in reaching a

decision, id. at ¶ 120.

¶ 14 In May 2023, our supreme court partially reversed the division

in Center for Excellence II. The court held it could not “say, on the

record before [the court], that a new trial on all” the Attorney

General’s Consumer Act claims was “necessarily warranted.”

Center for Excellence II, ¶ 66. (The Attorney General did not

challenge the division’s holding that proof of significant public

impact was required.) The supreme court therefore remanded the

case to this court “to determine whether CollegeAmerica had a full

and fair opportunity to litigate the significant public impact

element.” Id.

¶ 15 The supreme court recognized “a limited remand to the trial

court may be necessary to make additional findings.” Id. If the

division were to conclude CollegeAmerica had a full and fair

opportunity to litigate the significant public impact element, the

supreme court instructed the division to decide (1) “whether the

evidence presented at trial was sufficient to establish significant

public impact,” and, if so, whether the trial court’s error in not

8 making this finding was harmless, id. at ¶ 67; and (2) “any

remaining arguments” concerning the Attorney General’s Consumer

Act claims “the division did not consider because of its decision to

remand the claims for a new trial,” id.

¶ 16 The supreme court also decided CollegeAmerica was not

entitled to a jury trial and, although the division erred in its

rationale, the division “properly affirmed the trial court’s finding

that the EduPlan loans as a whole were not unconscionable.” Id. at

¶ 69.

¶ 17 In response to the supreme court’s opinion, the division

ordered the parties to provide supplemental briefs answering four

questions.

¶ 18 The first question was whether the trial court’s pretrial ruling

on significant public impact “so undermine[d] the parties’ incentives

to litigate the significant public impact issue that a new trial is

necessarily required,” or whether “the parties [had] a full and fair

opportunity to litigate the merits of the significant public impact

issue.”

¶ 19 The second question was, if “the parties had a full and fair

opportunity to litigate the significant public impact issue,” (a)

9 whether “the evidence submitted at trial [was] sufficient to establish

significant public impact”; (b) whether “the [trial court’s] error in not

making findings about significant public impact [was] harmless”;

and (c) “[w]hat additional claims under the [Consumer Act]” that the

division did not address in its opinion because of its decision to

remand the case for a new trial it should consider now.

¶ 20 The third question was, “if CollegeAmerica did not have a full

and fair opportunity to litigate the merits of the significant public

impact issue,” what the scope of a remand to the trial court should

be “to achieve substantial justice for the parties” under C.R.C.P. 61

that “could potentially require less than an entirely new trial” on the

Consumer Act claims.

¶ 21 The fourth question was whether a remand to the trial court

was necessary for the trial court to make factual findings

concerning the first three questions, and, if so, which ones.

¶ 22 After reviewing the supplemental briefs and their answers to

the four questions, the division remanded the case to the trial

court. (Because a new district court judge had taken over this case,

we shall refer to that judge as “the remand court.”) The order was

limited in scope: It instructed the remand court to decide whether

10 CollegeAmerica “had a full and fair opportunity” to litigate whether

its conduct had a significant public impact. To do so, the court

“should make inquiries and conduct further proceedings as it

deems necessary.”

¶ 23 If the court decided CollegeAmerica had a full and fair

opportunity to litigate the significant public impact issue, then it

was to “enter factual findings and legal conclusions” concerning

that issue. If the court decided CollegeAmerica did not have a full

and fair opportunity to litigate the significant public impact issue,

then it was to take steps to allow CollegeAmerica to “fully litigate”

the significant public impact issue and to enter factual findings and

legal conclusions based on the additional litigation.

¶ 24 The remand court completed these tasks, and it issued a

written order on February 5, 2025. Although we will discuss this

order in detail below, we provide a preliminary summary now.

¶ 25 The remand court decided CollegeAmerica did not have a full

and fair opportunity to litigate the issue of significant public impact

during the trial, so it offered the parties a chance to present

additional evidence on that issue. In response, the parties told the

court they had no additional evidence to offer, and they wished to

11 present argument to the court on the significant public impact

issue based on the existing record. After listening to those

arguments, the court issued its order. In it, the court ruled the

Attorney General had proved a significant public impact on all the

¶ 26 The case was recertified to this court. The parties submitted

supplemental briefs to this division on the significant public impact

issue.

¶ 27 We begin by addressing the significant public impact issue.

We next address the issues the division did not discuss in Center for

Excellence I, including the claims against the individual defendants

and the living trust.

II. Standard of Review

¶ 28 During the proceedings before the remand court, the parties

disagreed about whether that court should give any deference to the

trial court’s factual findings. CollegeAmerica asserted that there

should be no deference; the Attorney General said there should be

deference; and the trial court agreed with the Attorney General.

That disagreement continues in this appeal.

12 ¶ 29 CollegeAmerica contends that the trial court’s delay in issuing

its judgment, combined with adopting nearly all the Attorney

General’s proposed factual findings, rendered the earlier

proceedings fundamentally unfair. CollegeAmerica thus asserts

that we should not defer to the trial court’s factual findings. We

disagree.

¶ 30 To be sure, because the trial court adopted the Attorney

General’s proposed findings nearly verbatim, we will scrutinize

those findings “more critically than if they were produced by the

trial court itself.” Trask v. Nozisko, 134 P.3d 544, 549 (Colo. App.

2006). But that does not mean we review the record de novo to

arrive at our own factual findings; rather, “we will sustain those

findings if they are supported by the evidence.” Ficor, Inc. v.

McHugh, 639 P.2d 385, 390 (Colo. 1982). We will assume the trial

court “examined the proposed findings and agreed that they

correctly stated the facts as [the court itself] found them to be;

otherwise, [the court] would not have adopted them as [its] own.”

Uptime Corp. v. Colo. Rsch. Corp., 420 P.2d 232, 235 (Colo. 1966).

“It is only when the findings themselves are inadequate and do not

13 indicate the basis for the . . . court’s decision that the judgment will

be reversed.” Id.

¶ 31 There has been a lot of water under the bridge since the

proceedings before the trial court that undermines CollegeAmerica’s

contention that those proceedings were unfair.

¶ 32 First, the remand court “independently reviewed the relevant

evidence” and based its findings “upon careful examination of the

complete trial record, weighing the evidence accordingly.”

¶ 33 Second, the division in Center for Excellence I, ¶ 120, decided

the record did not show the trial court harbored a bias against

CollegeAmerica. It ordered a new judge to handle the case on

remand because of the trial court’s significant delay in issuing its

order.

¶ 34 So, to the extent we review the remand court’s factual findings

that were, in turn, based on the trial court’s factual findings, we will

review them for clear error. See Woodbridge Condo. Ass’n v. Lo

Viento Blanco, LLC, 2020 COA 34, ¶ 24 (“We review findings of fact

for clear error, meaning that we won’t disturb such findings if there

is any evidence in the record supporting them.”), aff’d, 2021 CO 56.

To the extent we review the trial court’s factual findings that were

14 not revisited by the remand court, we will review them to see

whether they are “inadequate and do not indicate the basis for

the . . . court’s decision,” Uptime Corp., 420 P.2d at 235, and we will

sustain those findings if they are supported by the evidence, see

Ficor, 639 P.2d at 390.

¶ 35 We review de novo the trial court’s and the remand court’s

applications of the law. Crocker v. Greater Colo. Anesthesia, P.C.,

2018 COA 33, ¶ 15.

¶ 36 We now turn to the issue of whether CollegeAmerica had a full

and fair opportunity to litigate the significant public impact issue.

III. Significant Public Impact

A. Applicable Law

¶ 37 The Consumer Act is a remedial statute intended to deter and

to punish deceptive trade practices committed by businesses when

dealing with the public. Showpiece Homes Corp. v. Assurance Co. of

Am., 38 P.3d 47, 50-51 (Colo. 2001). Its broad legislative purpose is

“to provide prompt, economical, and readily available remedies

against consumer fraud.” W. Food Plan, Inc. v. Dist. Ct., 598 P.2d

1038, 1041 (Colo. 1979). It provides two enforcement avenues: a

private action brought by any person against a business or a public

15 action brought by the Attorney General against the business.

Showpiece Homes Corp., 38 P.3d at 51.

¶ 38 When this case was brought in 2014, to prove a private right

of action under the Consumer Act, a plaintiff had to show (1) the

defendant engaged in an unfair or a deceptive trade practice; (2) the

challenged practice occurred in the course of the defendant’s

business, vocation, or occupation: (3) the challenged practice

significantly impacted the public as actual or potential consumers

of the defendant’s goods, services, or property; (4) the plaintiff

suffered injury in fact to a legally protected interest; and (5) the

challenged practice caused the plaintiff’s injury. Hall v. Walter, 969

P.2d 224, 235 (Colo. 1998).

¶ 39 To establish a public right of action, however, the Attorney

General only had to prove the first three elements to assess civil

penalties. State ex rel. Weiser v. Castle L. Grp., LLC, 2019 COA 49,

¶ 108, superseded by statute, Ch. 268, sec. 1, § 6-1-103, 2019

Colo. Sess. Laws 2515. (We recognize the legislature amended the

Consumer Act in 2019 to eliminate the significant public impact

element for public rights of action brought by the Attorney General.

But this change was not retroactive, so significant public impact

16 remains an issue in this case. See Center for Excellence I, ¶¶ 52,

54.)

¶ 40 “[T]he question whether there is a significant public impact” in

a Consumer Act case “is one of fact.” One Creative Place, LLC v. Jet

Ctr. Partners, LLC, 259 P.3d 1287, 1289 (Colo. App. 2011).

¶ 41 In evaluating the public impact of a defendant’s allegedly

deceptive trade practice, courts must consider, at least, (1) the

number of consumers directly affected by the trade practice; (2) the

relative sophistication and bargaining power of the consumers

affected by the practice; and (3) evidence the practice previously

impacted other consumers or had significant potential to do so in

the future. Martinez v. Lewis, 969 P.2d 213, 222 (Colo. 1998). But

this list is not exhaustive, and no single factor is determinative.

See id. (identifying “[s]ome of the considerations relevant to” a

determination of public impact); Crowe v. Tull, 126 P.3d 196, 208

(Colo. 2006)(“at least three factors to consider”); Shekarchian v.

Maxx Auto Recovery, Inc., 2019 COA 60, ¶ 42 (noting “[n]o single

factor is determinative”).

17 B. Analysis

1. Evidence Supports the Remand Court’s Determination There Was Significant Public Impact

¶ 42 Under the factors outlined in Martinez, 969 P.2d at 222, we

conclude the evidence presented at trial supports the remand

court’s finding of significant public impact for all six claims.

¶ 43 CollegeAmerica’s marketing and advertising directly affected

the public because they were directed at the general market. For

example, CollegeAmerica utilized national average wage data

showing wages significantly higher than those earned by

CollegeAmerica’s graduates. The national data was used as part of

its admissions interview process, which was viewed by more than

10,000 students who enrolled in CollegeAmerica since 2006.

¶ 44 CollegeAmerica was aware this information was essential to

prospective students, and its admissions employees emphasized to

prospective students the high wages they could receive based on the

national data.

¶ 45 CollegeAmerica distributed the national data in extensive

advertising campaigns. Between 2010 and 2015, it conducted

approximately seventy-five mail campaigns, some of which reached

18 between 13,000-14,000 Colorado homes. See Hall, 969 P.2d at 235

(“[T]here is no dispute that [defendants’] deceptive practices

implicated the public as consumers because the misrepresentations

were directed to the market generally, taking the form of widespread

advertisement and deception of actual and prospective

purchasers.”).

¶ 46 The evidence presented at trial also showed there was a

significant disparity in the relative bargaining positions of

CollegeAmerica and the affected students.

¶ 47 The Consumer Act protects consumers who are in a relatively

weak bargaining position, particularly in situations where

consumers are dependent on a defendant for truthful information

about a transaction. See Martinez, 969 P.2d at 222.

¶ 48 Unlike CollegeAmerica, which was a large corporate entity,

CollegeAmerica’s students were often relatively economically

unsophisticated. See Rhino Linings USA, Inc. v. Rocky Mountain

Rhino Lining, Inc., 62 P.3d 142, 146 (Colo. 2003)(recognizing that “a

large company is generally more sophisticated than individual

consumers”). As a result, students were in a significantly weaker

bargaining position regarding CollegeAmerica’s use of the national

19 data. CollegeAmerica, through the testimony of Eric Juhlin,

admitted its students generally had “been dealt a very challenging

hand.”

¶ 49 CollegeAmerica was also in a substantially stronger bargaining

position relative to its students concerning information about its

graduate placement rates because it knew high employment rates

in students’ chosen fields of study were a significant factor in

prospective students’ decisions to enroll.

¶ 50 CollegeAmerica was also aware that wage information was

material to the students’ decision to enroll in the school. But they

did not have a viable alternative means of ascertaining the

truthfulness of CollegeAmerica’s wage data, so they were dependent

on CollegeAmerica’s representations. See Martinez, 969 P.2d at 222

(noting the Consumer Act protects consumers who are in a

relatively weak bargaining position, particularly where consumers

are dependent on the defendant for access to truthful information

regarding the transaction).

¶ 51 CollegeAmerica conducted about forty mailing campaigns to

the public that included misleading information about the EduPlan,

and it displayed the same misleading information on its website. It

20 also provided this misleading information to students during the

admissions interview process.

¶ 52 CollegeAmerica was aware many students could not afford

tuition without the EduPlan. It also knew high numbers of its

students and graduates defaulted on their loan obligations.

Evidence at trial showed that between 2003 and 2006,

approximately 70% of EduPlan borrowers defaulted on their

payments. Between 2010 and 2016, more than 80% of students

were assessed late fees on their loans.

¶ 53 Despite knowing that many of its students were experiencing

financial distress and were unable to afford their EduPlan

payments, CollegeAmerica continued to advertise the EduPlan to

make college affordable. Indeed, CollegeAmerica trained its

employees to minimize students’ concerns about the EduPlan, and

employees spent only “a minute or two” reviewing the monthly

payment plan and whether students could afford it.

¶ 54 From 2008 to 2011, CollegeAmerica widely advertised that its

medical specialties program would prepare students for the LSO

exam in television advertisements, internet marketing, print

advertisements, and admissions binders. This information was

21 reiterated in CollegeAmerica’s course catalog. CollegeAmerica

specifically utilized “key word marketing” to target prospective

students who were interested in x-ray training.

¶ 55 However, CollegeAmerica’s Colorado campuses did not have

the necessary x-ray equipment and did not provide enough

experiential training for the LSO certification. Five students

enrolled in CollegeAmerica based on its representations regarding

the LSO certification.

¶ 56 CollegeAmerica never offered EMT courses as part of its

programming at any of its Colorado locations. Despite this fact,

CollegeAmerica advertised EMT certification to the general Colorado

market in printed advertising, in its course catalog, in admissions

binders, in admissions interviews, and online.

¶ 57 Several CollegeAmerica students testified at trial. They said

the admissions employees told the students during the admissions

interview they would be able to obtain EMT certification after

completing the medical specialties program and taking the state

examination. Based upon these representations, the students said

they decided to enroll in CollegeAmerica. CollegeAmerica also

received survey results as early as 2008 from its accrediting

22 institution putting it on notice that students were enrolling in the

medical specialties program based on their understanding the

program would lead to the EMT certification.

¶ 58 Yet CollegeAmerica continued to list EMT as a possible

certification for the medical specialties program in its admissions

binder through 2009 and on its Colorado-specific website through

most of 2010. It continued to advertise the EMT certification in

materials distributed throughout Colorado, and its employees

continued to mislead prospective students by making repeated

representations that EMT certification was possible through

CollegeAmerica’s programming when it was not.

¶ 59 CollegeAmerica’s conduct directly affected the public by

informing students about its sonography program through meetings

and admissions interviews, as well as by including the program in

its course catalog. In 2010, following the closure of Mile High

Medical Academy, CollegeAmerica held a meeting at which it

informed prospective students that it would create a sonography

program the following year. Several students testified about how

admissions personnel told them during their admissions interviews

there would be a sonography program at CollegeAmerica, and they

23 should enroll in the health administration program because those

classes would correspond with the sonography program. The

students added they would not have enrolled in CollegeAmerica had

they known there was a possibility it was not going to offer a

sonography program.

¶ 60 In early 2012, CollegeAmerica began advertising the

sonography program in its catalogs. Over the next year, it received

multiple inquiries from prospective students about the availability

of the sonography program, prompting the Dean of Education for its

Fort Collins campus to remark, “We have inquiries frequently

[about the sonography program], but can’t offer it and I find that a

little unsettling with potential students. They all follow-up with well

why does it say you have it in the catalog?”

¶ 61 CollegeAmerica decided not to offer the sonography program at

its Colorado campuses, but it continued to list the program in its

course catalog for a while after it had made this decision.

2. CollegeAmerica’s Additional Contentions About Significant Public Impact

¶ 62 CollegeAmerica further contends that (1) the remand court

misapplied the law because “directly affected” requires evidence

24 that CollegeAmerica’s advertising caused harm to an actual

consumer; (2) neither CollegeAmerica’s challenged advertisements

nor its catalog listings directly affected any consumer; (3) there was

no other basis for finding significant public impact; and (4) the

factual findings and conclusions adopted by the trial court and the

remand court are incorrect. We are not persuaded.

a. Directly Affected

¶ 63 CollegeAmerica contends that the remand court misapplied

the law because the phrase “directly affected” requires evidence

showing actual consumers were misled by the allegedly deceptive

advertising. It claims there was no evidence establishing the

allegedly deceptive advertising caused injury to an actual consumer.

¶ 64 We reject CollegeAmerica’s position because it would limit the

Consumer Act’s efficacy in fulfilling its purpose. As we noted above,

the Consumer Act is a remedial statute intended to deter and to

punish deceptive trade practices committed by businesses when

dealing with the public. Showpiece Homes Corp., 38 P.3d at 50-51.

The Consumer Act’s broad legislative purpose is to provide prompt,

economical, and readily available remedies against consumer fraud.

Id. at 51 (citing W. Food Plan Inc., 598 P.2d at 1041).

25 ¶ 65 The Consumer Act also regulates “commercial activities and

practices which, ‘because of their nature, may prove injurious,

offensive, or dangerous to the public.’” Rhino Linings, 62 P.3d at

146 (quoting People ex rel. Dunbar v. Gym of Am., Inc., 493 P.2d

660, 667 (Colo. 1972)). When interpreting the Consumer Act’s

language, courts rely on the Consumer Act’s broad deterrent

purpose and scope. Id. “An expansive approach is taken in

interpreting the [Consumer Act] by reading and considering the

[Consumer Act] in its entirety and interpreting the meaning of any

one section by considering the overall legislative purpose.” May

Dep’t Stores Co. v. State ex rel. Woodard, 863 P.2d 967, 973 n.10

(Colo. 1993); see also Showpiece Homes Corp., 38 P.3d at 51 (“[W]e

must keep in mind the liberal construction we have given the

[Consumer Act] in prior cases.”). Adopting CollegeAmerica’s

definition of “directly affected” would drastically narrow the scope of

conduct covered by the Consumer Act — a result at odds with the

preceding authority directing us to interpret the statute broadly.

¶ 66 CollegeAmerica’s position would require the Attorney General

to show evidence of specific individuals who have suffered an actual

injury before the Attorney General could file a Consumer Act claim.

26 But neither the Consumer Act nor our case law requires evidence of

an actual injury before the Attorney General can seek civil

penalties. See May Dep’t Stores Co., 863 P.2d at 973 (noting that

the Consumer Act “does not require proof of an actual injury or loss

before a civil penalty can be awarded” (emphasis added)).

¶ 67 We must also consider the Consumer Act’s deterrent purpose

when analyzing the scope of the statute. See Rhino Linings, 62 P.3d

at 146. Requiring proof of actual injury to a consumer before a

Consumer Act claim can be brought would force the Attorney

General to wait on the sidelines for consumers to become victims

before the Attorney General could act. May Dep’t Stores Co., 863

P.2d at 973 n.9 (“A policy of tolerating false advertising until a

customer was actually injured would . . . ignore the plain language

and broad remedial purposes of the [Consumer Act].”).

¶ 68 CollegeAmerica’s contention also conflates the elements of a

private Consumer Act claim with the elements required for public

claims brought by the Attorney General. As we explained above,

Hall, 969 P.2d at 235-36, listed five elements for private Consumer

Act claims, versus three for public Consumer Act claims filed by the

Attorney General. See also Castle L. Grp., ¶ 108. In other words,

27 the proof requirements for the Attorney General, in this context, are

not the same as the proof required for private Consumer Act claims.

b. Advertisements and Catalog Listings

¶ 69 CollegeAmerica asserts that neither the challenged

advertisements nor the catalog listings directly affected consumers.

Specifically, it submits that (1) the Attorney General did not offer

evidence showing any student misunderstood the national wage

data; (2) the Attorney General did not offer evidence that any

student reviewed or acted on the graduation/employment data; (3)

the Attorney General did not introduce any evidence of any student

who was misled or acted upon the EduPlan flyers; and (4) the

number of students directly impacted by the LSO, EMT, and

sonography claims were numerically insufficient to establish

significant public impact. We disagree.

¶ 70 CollegeAmerica’s position about its advertising is predicated

on the assumption that “directly affected” requires an identifiable

consumer to suffer an actual injury. But, as we have shown,

neither the Consumer Act nor our case law imposes such a

requirement.

28 ¶ 71 “Although ‘the number of consumers directly affected by’ a

deceptive trade practice is one factor that may be considered in

evaluating public impact, no single factor is determinative, nor does

Martinez suggest that it provides an exhaustive list.” One Creative

Place, LLC, 259 P.3d at 1290 (citation omitted).

¶ 72 Based on the record in this case, there can be no meaningful

dispute that CollegeAmerica’s “deceptive practices implicated the

public as consumers because the misrepresentations were directed

to the market generally, taking the form of widespread

advertisement and deception of actual and prospective purchasers.”

Hall, 969 P.2d at 235 (emphasis added). And the evidence in this

case showed that the LSO, EMT, and sonography programs were

marketed broadly to the public. See Shekarchian, ¶ 49 (“[T]he

evidence supported a reasonable inference that Maxx Auto engages

in the unfair or deceptive trade practice in virtually every

interaction with consumers.”).

¶ 73 Turning to the specific evidence about students in the record,

when discussing significant public impact under Claim One —

concerning wage data — the remand court found that

29 • “[b]etween 60% and 66%” of the students who enrolled in

CollegeAmerica “did not graduate”;

• of those who graduated, “about 20% to 25% were

unemployed”;

• graduates “often ended up with low-paying jobs outside

their fields of study and stuck with high levels of

educational debt that they were unable to repay”; and

• “multiple” students testified that they “enrolled at

CollegeAmerica because of its misleading practices and

were unable to find employment or obtain better paying

jobs after graduation.”

¶ 74 As for significant public impact for Claim Two — job placement

rates — the remand court found that

• “approximately 326 out of 925 CollegeAmerica graduates

were incorrectly reported as ‘employed in the field;” and

• several graduates testified they were “either unemployed

or working in unrelated fields.”

¶ 75 Turning to significant public impact for Claim Three — the

EduPlan — the remand court found that

30 • “CollegeAmerica’s representations impacted many

hundreds of Colorado consumers who borrowed money

through the EduPlan loans”;

• CollegeAmerica “sent over . . . 1,400 . . . EduPlan

borrowers to collections agencies”;

• a significant percentage of students who defaulted on

their EduPlan loans faced harsh economic consequences,

“such as negative credit reporting, difficulty qualifying for

other loans, falling behind on other credit obligations,

missing rent and utility payments, and [having] less

money to support themselves and their families”; and

• these debts were generally not dischargeable in

bankruptcy, meaning students would be saddled with the

negative consequences of the EduPlan loans well into the

future.

¶ 76 For Claim Four — LSO — the remand court found that at least

five students “enrolled in CollegeAmerica because of [its] false

statements.”

¶ 77 The remand court found that, for Claim Five — EMT

certification — at least two “former students testified that they were

31 misled by CollegeAmerica . . . during their admission interviews . . .

which resulted in significant financial harm.”

¶ 78 And, for Count Six — the sonography program — the remand

court found that “at least two” students testified they were “harmed

by CollegeAmerica’s representations about the availability of a

sonography program.”

¶ 79 CollegeAmerica’s submission concerning the catalog listings,

while slightly different, is equally unpersuasive. It submits that the

Attorney General’s LSO, EMT, and sonography claims do not

establish significant public impact because deceptive advertising “at

most allegedly affected eight out of the 10,879 students who

enrolled from 2006 to 2016.” There is, CollegeAmerica continues,

an implicit numerical threshold — a specific number of actual

consumers suffering injury — that the Attorney General must show

before the Attorney General can establish significant public impact.

¶ 80 But this position misunderstands our precedent.

CollegeAmerica relies heavily on cases where courts concluded that

plaintiffs had not established significant public impact, in part,

because of the small number of individuals directly affected by the

deceptive advertising. See, e.g., Coors v. Sec. Life of Denver Ins. Co.,

32 91 P.3d 393, 399 (Colo. App. 2003)(noting impact of “200 affected

policy holders out of 20,000” did not constitute significant public

impact), aff’d by an equally divided court in part and rev’d in part,

112 P.3d 59, 63-64 (Colo. 2005); Rhino Linings, 62 P.3d at 150

(“Three affected dealers out of approximately 550 worldwide does

not significantly affect the public . . . .”).

¶ 81 But these statements taken in isolation and stripped of their

context do not fairly represent the nuanced approach taken by our

courts when balancing the factors listed in Martinez, 969 P.2d at

222. Specifically, CollegeAmerica relies on Coors and Rhino Linings

to contend that, for Claims Four, Five, and Six, the small number of

affected students — five for LSO, two for EMT, and two for

sonography — means there was not a significant public impact for

those claims. See Coors, 91 P.3d at 399 (finding no significant

public impact in part due to the “challenged conduct being private

in nature,” and fact that Coors was “a sophisticated businessman

and was accompanied by counsel”); Rhino Linings, 62 P.3d at 150

(finding no significant public impact, in part because the claim was

more akin to a private breach of contract, and “Snyder was

represented by counsel in negotiations with Rhino and Schaefer

33 was relatively sophisticated in his education and knowledge of the

business”).

¶ 82 But both Coors and Rhino Linings were private causes of

action, not public causes of action, such as this case, brought by

the Attorney General. See Coors, 91 P.3d at 398; Rhino Linings, 62

P.3d at 146.

c. CollegeAmerica’s Claim that No Other Basis Supports Significant Public Impact

¶ 83 CollegeAmerica contends that there is no other basis for

finding significant public impact because neither the second nor

third Martinez factor is applicable.

¶ 84 According to CollegeAmerica, the second factor — the “relative

sophistication and bargaining power of the consumers affected by

the challenged practice,” Martinez, 969 P.2d at 222 — does not

apply because few to no consumers were harmed by

CollegeAmerica’s conduct. Likewise, CollegeAmerica asserts that

the third factor is inapplicable because its discontinued past

practices cannot impact future consumers. (As we noted above,

CollegeAmerica ceased operations in Colorado in 2020.) Again, we

34 ¶ 85 CollegeAmerica’s assertion that the second Martinez factor is

inapplicable if no or few consumers are directly affected is not

supported by precedent. Its assertion implies the term “directly

affected” is either a threshold question to be answered before

proceeding to the remaining Martinez factors or a recognition the

first Martinez factor is determinative. But our case law has not

adopted such a rigid analysis, and we decline to do so here. See id.

¶ 86 Second, even assuming, for the purposes of argument, the

closure of CollegeAmerica’s operation in Colorado limits the extent

to which the college’s past actions could produce future harms, it

does not alter our analysis or the significance of the other factors.

And, despite the fact the closure may eliminate some aspects of the

future harm caused by CollegeAmerica’s conduct, we are

unpersuaded its closure eliminates the impact its past conduct had

on its students.

d. Reliability of the Trial Court’s Factual Findings

¶ 87 CollegeAmerica next attacks the trial court’s factual findings

and conclusions as unreliable. As we concluded above, to the

extent we review the trial court’s factual findings that were not

revisited by the remand court, we look at them to see whether they

35 are “inadequate and do not indicate the basis for the . . . court’s

decision,” Uptime Corp., 420 P.2d at 235, and we will sustain those

findings if they are supported by the evidence, see Ficor, 639 P.2d

at 390. In this case, we conclude they were supported by evidence.

IV. Bias and Fairness of the Trial Court Proceedings

¶ 88 In its supplemental briefing following the remand,

CollegeAmerica reasserts its beliefs that (1) the proceedings were

fundamentally unfair; and (2) the Attorney General and the trial

court were biased against proprietary colleges. These claims,

however, were considered and addressed in Center for Excellence I,

¶ 120. We decline to reconsider these claims. See In re Foster, 253

P.3d 1244, 1258 (Colo. 2011)(rejecting a claim of bias because it

“simply asserted the same arguments to the same court for a

second time” and it was “not a situation where new circumstances

or new evidence could possibly have led to a different result”).

V. CollegeAmerica’s Remaining Claims Concerning the Consumer Act

¶ 89 CollegeAmerica raises an assortment of other alleged errors

regarding the Consumer Act.

36 A. CollegeAmerica’s Universal Challenges

¶ 90 As we understand its position, CollegeAmerica asserts that (1)

the Attorney General’s Consumer Act claims constitute a qualitative

attack on CollegeAmerica’s educational services; (2) the trial court

usurped the regulatory functions of the Department of Education,

the Accrediting Commission of Career Schools and Colleges, and

Colorado’s Division of Private Occupational Schools; (3) the trial

court did not apply the “reasonable consumer” standard for

analyzing deceptive conduct; and (4) the trial court did not conduct

a “holistic review” of the claims. (It is unclear whether

CollegeAmerica raises these challenges to all six of the Attorney

General’s Consumer Act claims. Out of an abundance of caution,

we treat these assertions as applying to all six claims.) We are not

persuaded by any of these more general assertions.

1. Educational Malpractice

¶ 91 CollegeAmerica submits that the Attorney General’s Consumer

Act claims are barred by the educational malpractice doctrine

because they are qualitative attacks against its educational

services. The division’s prior opinion rejected CollegeAmerica’s

submission that the educational malpractice doctrine prohibits

37 Consumer Act claims against educational institutions as a matter of

law. See Center for Excellence I, ¶ 81. But the division did not

address whether the Attorney General’s claims were prohibited

based on specific facts presented at trial. Id. at ¶ 72.

¶ 92 Because education is a “collaborative and subjective process

whose success is largely reliant on the student,” and because “the

existence of such outside factors as a student’s attitude and

abilities render it impossible to establish any quality or curriculum

deficiencies as a proximate cause to any injuries,” Colorado courts

have refused to recognize claims alleging educational malpractice.

Tolman v. CenCor Career Colls., Inc., 851 P.2d 203, 205 (Colo. App.

1992), aff’d sub nom., CenCor, Inc. v. Tolman, 868 P.2d 396 (Colo.

1994); see CenCor, 868 P.2d at 398 (“Contract claims that in fact

attack the general quality of educational experiences provided to

students have generally been rejected.”).

¶ 93 Notwithstanding this prohibition, a plaintiff may raise claims

alleging the institution did not provide educational services the

institution promised to provide. See CenCor, 868 P.2d at 399

(holding claims based on an institution’s lack of “specifically

promised educational services” are permitted).

38 ¶ 94 We conclude, for the following reasons, that the Attorney

General’s Consumer Act claims do not pertain to the quality of the

education provided by CollegeAmerica, and they do not question the

abilities of its instructors or the wisdom of its curriculum. Instead,

the claims focus on specific representations made by

CollegeAmerica in its advertising and throughout its admissions

process. See id. (recognizing the educational malpractice doctrine

would not bar claims such as “a failure to offer any classes or a

failure to deliver a promised number of hours of instruction”

because such claims sound in contract).

¶ 95 For example, the Attorney General presented evidence that

CollegeAmerica used national wage data to mislead prospective

students into believing they would receive salaries higher than the

salaries its graduates were receiving. Similarly, there was proof

CollegeAmerica misled prospective students by advertising inflated

job placement rates. Neither of these claims implicated how

CollegeAmerica presented its educational programming or the

quality of its courses. Rather, the claims focused on what its

representatives were telling prospective students and the public

39 about what they might expect to receive after taking

CollegeAmerica’s classes.

¶ 96 Likewise, the Attorney General’s claims about

CollegeAmerica’s representations for specific programming — such

as the LSO, EMT, and sonography programs — do not address the

quality of the education provided in those classes. Instead, the

evidence focused on representations made in CollegeAmerica’s

advertising — such as telling students they could pursue a degree

in sonography despite not offering a sonography program, or that a

student could sit for the LSO licensing exam even though

CollegeAmerica’s coursework did not meet the exam’s minimum

qualifications. See id. (“[I]f certain requisites necessary to attain

certification in a specific program are not even offered, a claim

based on contract principles may be viable.”).

2. Usurping Regulatory Function

¶ 97 As is pertinent to our analysis, the trial court ordered

CollegeAmerica before the trial to disclose in any advertisement

using wages obtained from the Bureau of Labor Statistics or from

any other national database that the wages were “based upon

national data,” not on CollegeAmerica’s data. Before the trial, the

40 court also required CollegeAmerica to disclose the “median wages of

CollegeAmerica graduates in the prospective students’ program(s) of

interest.” CollegeAmerica contends that this order was error

because it usurped the regulatory role of (1) the Department of

Education by imposing new affirmative rules on how

CollegeAmerica must report wages beyond those rules already

mandated by the Department; (2) the Accrediting Commission of

Career Schools and Colleges by acting as CollegeAmerica’s regulator

instead of the Accrediting Commission; and (3) Colorado’s Division

of Private Occupational Schools by requiring the reporting of

college-specific wage data when the Division of Private Occupational

Schools did not. We disagree.

¶ 98 The Consumer Act provides a district court may

make such orders or judgments as may be necessary to prevent the use or employment by the person of any such deceptive trade practice or that may be necessary to completely compensate or restore to the original position of any person injured by means of any such practice or to prevent any unjust enrichment by any person through the use or employment of any deceptive trade practice.

§ 6-1-110(1), C.R.S. 2025.

41 ¶ 99 Under this grant of authority, “[a] trial court enjoys broad

discretion in fashioning appropriate remedies under the [Consumer

Act].” People v. Wunder, 2016 COA 46, ¶ 30 (quoting People v.

Shifrin, 2014 COA 14, ¶ 83). A court abuses its discretion if its

decision is manifestly arbitrary, unreasonable, or unfair, or based

on an erroneous understanding or application of the law. Salazar v.

Kubic, 2015 COA 148, ¶ 6.

¶ 100 We conclude, for the following reasons, that the trial court’s

order did not usurp the authority of the Department, the

Accrediting Commission, or the Division of Private Occupational

Schools.

¶ 101 Generally, the trial court’s orders requiring disclosure of this

kind of information were within its discretion under section 6-1-

110(1). Colorado appellate courts have consistently recognized

court-ordered disclosure of information to consumers is a

permissible remedy. See May Dep’t Stores Co., 863 P.2d at 978

(noting disclosure is an adequate remedy in some cases); Castle L.

Grp., ¶ 28 (acknowledging disclosure may be an adequate remedy to

correct fraudulent and misleading advertising practices). In this

case, the trial court’s order was narrow, only requiring

42 CollegeAmerica to disclose specific information if it continued to

utilize national wage data in its advertising.

¶ 102 More specifically, the trial court’s order imposed conditions on

CollegeAmerica’s use of national wage data in its public advertising.

The order did not affect CollegeAmerica’s eligibility for federal

funding from the Department, its accreditation by the Accrediting

Commission, or its license issued by the Division of Private

Occupational Schools.

¶ 103 CollegeAmerica points out the Department rescinded a rule in

2019 requiring the reporting of college-specific median earnings.

The rescission of this rule, CollegeAmerica continues, is evidence

the trial court usurped the Department’s authority.

¶ 104 But it is unclear to us why the Department rescinded the rule.

The decision to rescind a rule may reflect a variety of

considerations, such as its alignment with statutory objectives or

its practical implications. See Colo. Oil & Gas Conservation Comm’n

v. Martinez, 2019 CO 3, ¶¶ 48-53 (pointing out the oil and gas

commission’s rulemaking decisions may be based on multiple

considerations). Absent clear evidence the Department intended

the recission of the rule to act as a prohibition on similar

43 requirements in individual cases, which CollegeAmerica did not give

the trial court, we decline to interpret the rule’s rescission as being

designed to preempt other entities from imposing similar

requirements.

3. Reasonable Consumer Standard

¶ 105 CollegeAmerica asserts that the “reasonable consumer”

standard governs whether advertising was deceptive within the

context of the Consumer Act. So, it adds, the trial court erred when

it did not apply this standard. We disagree.

¶ 106 The Consumer Act defines deceptive trade practices. See § 6-

1-105(1), C.R.S. 2025 (providing an extensive, nonexhaustive list of

conduct that violates the Consumer Act). As is relevant in this

case, the trial court decided CollegeAmerica violated section 6-1-

105(1)(e), C.R.S. 2014, regarding all six of the Attorney General’s

claims. (The court also decided some of CollegeAmerica’s conduct

violated section 6-1-105(1)(g) and (u).)

¶ 107 To establish a deceptive trade practice under section 6-1-

105(1)(e), C.R.S. 2014, a plaintiff must show the defendant

“[k]nowingly ma[de] a false representation.” (Subsection (1)(e) was

amended by H.B. 19-1289 to include “recklessly” as a culpable

44 mental state, but this amendment was not effective when the

Attorney General filed this case. Ch. 268, sec. 2, § 6-1-105(1)(e),

2019 Colo. Sess. Laws 2516.)

¶ 108 A false representation is one that “must either induce a party

to act, refrain from acting, or have the capacity or tendency to

attract consumers.” Rhino Linings, 62 P.3d at 147. A false

representation may satisfy the deceptive trade practice requirement

even if the representation did not deceive the plaintiff. Id. at 148

(noting the deceptive trade practice requirement can be met by

showing the “false representation had the capacity or tendency to

deceive, even if it did not”(emphasis added)).

¶ 109 We conclude the trial court applied the proper standard under

section 6-1-105(1)(e). In reaching its conclusion, the trial court

considered whether CollegeAmerica’s conduct was deceptive under

the framework adopted by our supreme court. See May Dep’t Stores

Co., 863 P.2d at 973 (“[I]t is in the public interest to invoke the

state’s police power to prevent the use of methods that have a

tendency or capacity to attract customers through deceptive trade

practices.”(citation omitted)); Rhino Linings, 62 P.3d at 146.

45 ¶ 110 Contrary to CollegeAmerica’s assertion, the reasonable

consumer standard has not been adopted by either Colorado’s

legislature or Colorado’s courts. The only Colorado authority

CollegeAmerica cites for this proposition is a single reference in a

case footnote. See Rhino Linings, 62 P.3d at 148 n.11. But this

footnote does not purport to adopt the reasonable consumer

standard as CollegeAmerica submits; rather, the footnote’s function

is to demonstrate that “courts in other jurisdictions have also

concluded that either proof of a misrepresentation or proof that the

representation had the capacity to deceive will satisfy the deceptive

trade practices requirement.” Id. at 148.

¶ 111 CollegeAmerica contends that our past reliance on Washington

state law requires us to adopt the reasonable consumer standard,

which is the standard in that state. See Crowe v. Tull, 126 P.3d

196, 203 (Colo. 2006)(noting Colorado courts “have previously

looked to decisions of the Supreme Court of Washington for

guidance in interpreting the [Consumer Act].”); see also Panag v.

Farmers Ins. Co. of Wash., 204 P.3d 885, 895 (Wash. 2009)(noting

deception exists where the “‘representation, omission or practice . . .

is likely to mislead’ a reasonable consumer” (citation omitted)).

46 ¶ 112 In both May Department Stores and Rhino Linings, our

supreme court articulated the standard for determining whether

conduct is deceptive enough to be conduct having “the capacity or

tendency to deceive.” Rhino Linings, 62 P.3d at 148. Adopting the

reasonable consumer standard would require us to deviate from the

rule prescribed by our supreme court. We decline to do so. See

Silver v. Colo. Cas. Ins. Co., 219 P.3d 324, 330 (Colo. App.

2009)(“[W]e are not at liberty to disregard that rule absent some

clear indication that the Colorado Supreme Court has overruled

it.”). And, had the supreme court wanted to adopt the reasonable

consumer standard, it could have done so in Rhino Linings.

¶ 113 To add more weight to the “reasonable consumer” pan on the

scale, CollegeAmerica claims in its reply brief that the reasonable

consumer standard “now governs not only federal cases but also

state consumer protection cases.” But it does not cite any Colorado

case adopting this standard; it only references authorities from

other jurisdictions; and it does not explain how these authorities

supplant May Department Stores and Rhino Linings. And, to the

extent this contention was raised for the first time in the reply brief,

47 we will not consider it further. See Meadow Homes Dev. Corp. v.

Bowens, 211 P.3d 743, 748 (Colo. App. 2009).

4. Holistic Review

¶ 114 CollegeAmerica submits that the trial court erred because it

did not conduct a holistic review of the information available to

consumers before concluding the advertisements were deceptive.

As best we can discern, CollegeAmerica means the trial court did

not consider all the evidence presented at trial. But, absent

evidence to the contrary, we presume the trial court considered all

competent evidence presented during the trial before making its

factual findings. See In re Marriage of Hatton, 160 P.3d 326, 329-30

(Colo. App. 2007)(“We may presume that the trial court considered

the evidence before it.”); Hereford v. Benton, 80 P. 499, 500 (Colo.

App. 1905)(“We must presume that the court, in making its

findings, did its duty; that is, that it considered all competent

evidence which had been received in the course of the trial.”).

¶ 115 CollegeAmerica asserts that there is evidence, such as its

admissions process and its three-week “false start” period, that

shows the trial court could not have considered all relevant

evidence in concluding that the advertisements were deceptive. But

48 this evidence — at most — only shows there was conflicting

evidence in the record, and the trial court did not find this evidence

compelling. In the absence of any specific affirmative evidence to

the contrary, we presume the trial court performed its duty and

considered the entire record before it. Marriage of Hatton, 160 P.3d

at 329-30. We therefore will not substitute our judgment for the

trial court’s. Gen. Cable Co. v. Indus. Claim Appeals Off., 878 P.2d

118, 120 (Colo. App. 1994)(“An appellate court does not decide the

facts and may not substitute its judgment for that of the fact

finder.”).

B. CollegeAmerica’s Contentions Regarding Issues Other Than Significant Public Impact

¶ 116 Beyond the significant public impact analysis, CollegeAmerica

alleges the trial court committed various errors concerning all six of

the Attorney General’s Consumer Act claims.

1. Claim One: National Wage Data

¶ 117 CollegeAmerica contends that it did not violate the Consumer

Act because it truthfully cited national wage data. We disagree.

¶ 118 The division addressed a variant of this issue in Center for

Excellence I, ¶ 89. It rejected CollegeAmerica’s assertion it could

49 not be held liable for including national wage data in its advertising

that the Department required it to disclose. But the division did not

address the issue CollegeAmerica raises now, which is based on

whether the facts presented to the trial court prohibited the

Attorney General’s Consumer Act claim.

¶ 119 To begin, the Attorney General did not allege CollegeAmerica

violated the Consumer Act because it provided links to accurate

national wage data; rather, the Attorney General alleged something

decidedly different: CollegeAmerica deceptively used the national

wage data in its advertising to mislead consumers. In other words,

this allegation focused on the way CollegeAmerica used the national

wage data in its advertising, not on the fact the national wage data

was accurate.

¶ 120 We conclude, for the following reasons, that the trial court’s

determination that CollegeAmerica’s use of the national wage data

in advertising was misleading is supported by the record.

¶ 121 One CollegeAmerica advertisement stated, “[S]tarting offers for

graduates with a bachelor’s degree in computer science averaged

$60,473.” In fine print at the bottom of the advertisement,

CollegeAmerica noted the information came from the national wage

50 data and the “actual salary may be higher or lower.” But

CollegeAmerica knew starting offers for its graduates were markedly

lower. Indeed, CollegeAmerica’s data showed the average salary for

its graduates with a degree in computer science was only $31,870,

almost half the salary quoted in its advertisement.

¶ 122 This approach — CollegeAmerica quoting higher national wage

data while being aware its data showed its graduates made

substantially less than the national figures — was not limited to

advertisements concerning CollegeAmerica’s computer science

degree. CollegeAmerica advertised the median national salary for a

degree in accounting as $44,700, even though its data showed the

average salary of its graduates was only $27,040. Its catalog listed

a starting salary range for a graphic arts degree to be between

$38,000 and $45,000, despite its awareness its own data showed

graduates made less than $16,000.

¶ 123 We are not persuaded by CollegeAmerica’s assertion it cannot

be held liable for providing truthful national wage information. A

statement, while truthful, may still be misleading when considering

the context in which the statement is made. See NBC Subsidiary

(KCNC-TV), Inc. v. Living Will Ctr., 879 P.2d 6, 11 (Colo. 1994)(noting

51 a statement appearing to be truthful may still imply a false or

misleading fact depending on how it is presented); Eng v.

Specialized Loan Servicing, 500 P.3d 171, 178 (Wash. Ct. App.

2021)(“Even a truthful statement can be deceptive if it creates a

misleading ‘net impression.’” (quoting State v. Living Essentials,

LLC, 436 P.3d 857, 865 (Wash. Ct. App. 2019))).

¶ 124 Context matters. By advertising true statements about the

average national wages of certain professions — but declining to

provide any of its own data about its graduates’ wages —

CollegeAmerica misled its students into believing they would receive

wages higher than what its graduates received.

2. Claim Two: Graduation and Employment Data

¶ 125 CollegeAmerica submits that the trial court erred when it

found that CollegeAmerica’s use of graduation and employment

data violated the Consumer Act. Specifically, CollegeAmerica

asserts that (1) the trial court should not have applied accreditation

rules; (2) the Attorney General’s audit misapplied the accreditation

rules; (3) the graduation and employment data reported to the

Accrediting Commission was never used in CollegeAmerica’s

advertising; and (4) an independent third party audited and verified

52 CollegeAmerica’s graduation and employment data. We are not

persuaded.

¶ 126 We first conclude, for the following reasons, the trial court did

not err when it used the relevant accreditation standards.

¶ 127 At trial, the Attorney General offered the testimony of a

certified public accountant who had audited CollegeAmerica’s

employment rate documentation. The accountant was also certified

in financial forensics and as a fraud examiner. Based on his review

of CollegeAmerica’s documentation, the accountant concluded

CollegeAmerica was misrepresenting the percentage of graduates

who obtained jobs in their fields of study. The court found the

accountant’s analysis “credible and helpful to understanding the

accuracy of CollegeAmerica’s reporting of its graduation and

employment rates.”

¶ 128 Citing Professional Massage Training Center, Inc. v.

Accreditation Alliance of Career Schools and Colleges, 781 F.3d 161,

172 (4th Cir. 2015), CollegeAmerica contends that the court’s use of

this information was improper because courts should not apply

accreditation rules in the first instance and because courts lack the

knowledge and expertise necessary to perform the Accrediting

53 Commission’s function. But Professional Massage Training Center

is inapposite.

¶ 129 The issue in Professional Massage Training Center was a

court’s decision to overrule the Accrediting Commission’s revocation

of a school’s accreditation. Id. at 166. So that case stands for the

proposition that courts defer to agency determinations even in the

for-profit school accreditation process. Id.

¶ 130 But in this case, the trial court was not reviewing any decision

of the Accrediting Commission; the court’s reliance on the

accountant’s testimony was not tantamount to a review of any of

the Commission’s actions; and the court was not asked to defer to

any of the Commission’s actions. Instead, the court used the

accountant’s testimony and CollegeAmerica’s records to assess the

accuracy of the information CollegeAmerica provided to the

Commission.

¶ 131 We next reject CollegeAmerica’s claims that the accountant

misapplied the Accrediting Commission’s standards and that a

third-party audit absolved CollegeAmerica from liability.

54 • contends that the accountant “defied” the Commission’s

methodology;

• questions his ability, as a certified public accountant, to

apply the Commission’s standards accurately; and

• submits that the court did not explain how

CollegeAmerica knowingly engaged in a deceptive trade

practice when it had reasonably relied on the findings of

independent audits.

¶ 132 But these are factual questions, some of them based on

credibility findings. As we have pointed out above, we defer to the

trial court’s credibility determinations and to its factual findings

when they are supported by the record. See Shekarchian, ¶ 28.

And the record supports the court’s findings as far as these

CollegeAmerica assertions are concerned.

¶ 133 For one example, the Accrediting Commission identifies

certified public accountants as experts who are qualified to perform

independent employment verification audits.

¶ 134 For a second example, the trial court heard testimony about

employment rates from the accountant, from the executive director

55 of the Accrediting Commission, and from some CollegeAmerica

employees.

¶ 135 The accountant testified CollegeAmerica was reporting

graduates as employed in their field of study when they were

employed in unrelated occupations. He testified CollegeAmerica

identified graduates with degrees in Business Administration as

employed in their field of study because they obtained jobs such as

a produce clerk at a grocery store, an employee working at the

counter of a fast-food restaurant, and a sales associate at a clothing

store.

¶ 136 For a third example, the trial court considered evidence of

CollegeAmerica’s independent third-party audits. But, after

comparing this evidence with CollegeAmerica’s own records, the

court decided the accountant’s testimony was more credible than

the auditor’s testimony.

¶ 137 CollegeAmerica next asserts that it did not violate the

Consumer Act because it never used the graduate employment

rates reported to the Accrediting Commission in its advertisements.

But the court found otherwise. In one instance, the court, relying

on support in the record, determined that CollegeAmerica disclosed

56 the employment rates it reported to the Commission to prospective

students through its website, in its TV advertisements, on its flyers,

and on its postings around its Colorado campuses.

3. Claim Three: EduPlan

¶ 138 CollegeAmerica asserts that it accurately described the

benefits of the EduPlan, and that the Attorney General’s Consumer

Act claim attacks “the value” of a CollegeAmerica degree. We

¶ 139 We conclude evidence presented at trial supported the trial

court’s determination CollegeAmerica misrepresented the benefits of

the EduPlan to prospective and current students.

¶ 140 CollegeAmerica touted the EduPlan to prospective students

through flyers, in its advertising, on its website, and during

admissions interviews as a way to afford college and to re-establish

credit.

¶ 141 But the reality was different. CollegeAmerica was aware that

significant portions of its student population came from

economically disadvantaged backgrounds and that these students

were not likely to be able to afford a CollegeAmerica education.

CollegeAmerica was also aware its students were facing a greater

57 likelihood of defaults on EduPlan payments during school and after

graduation. For example, evidence at trial showed that, between

2003 and 2006, approximately 70% of EduPlan borrowers defaulted

on their payments. Between 2010 and 2016, more than 80% of

students were assessed late fees on their student loans. Despite

being aware of these statistics, CollegeAmerica continued to tell

prospective students through its advertising that the EduPlan made

college more affordable and would help them re-establish their

¶ 142 CollegeAmerica asserts that it did not violate the Consumer

Act because it accurately described the benefits of the EduPlan. In

support of this assertion, it cites a statement made by the judge

who presided over the preliminary injunction hearing in this case,

who said it accurately described the EduPlan. But a preliminary

injunction hearing is not designed to be a full hearing at which a

party presents its entire case. Litinsky v. Querard, 683 P.2d 816,

819 (Colo. App. 1984); see also Governor’s Ranch Pro. Ctr., Ltd. v.

Mercy of Colo. Inc., 793 P.2d 648, 651 (Colo. App. 1990)(noting a

party during a preliminary injunction hearing does not have “the

incentive to develop [its] case as thoroughly as during trial”). So the

58 judge’s findings during the preliminary injunction hearing were not

determinative of the case’s merits, which were developed in the

proceeding held by the trial court. See Mt. Emmons Mining Co. v.

Town of Crested Butte, 690 P.2d 231, 239-40 (Colo. 1984)(noting

the findings made in connection with a request for a preliminary

injunction are not conclusive on the ultimate merits of the

controversy). For this reason, the statements made by the judge

during the preliminary injunction hearing do not override the

findings of fact made by the trial court after an extensive trial.

¶ 143 Next, we do not agree with CollegeAmerica’s attempt to

reframe the Attorney General’s Consumer Act claim as a qualitative

attack on the value of a CollegeAmerica education. We have already

rejected CollegeAmerica’s contention that the Attorney General’s

case constitutes an allegation of educational malpractice. Turning

to this issue, the Attorney General did not allege a CollegeAmerica

education lacked value because students were financially worse off

after graduating; rather, the Attorney General alleged

CollegeAmerica was misrepresenting the benefits of the EduPlan to

students. In other words, the focus of the Attorney General’s case

was on the misrepresentations CollegeAmerica made to students

59 concerning the EduPlan, not on the quality of the education they

received.

4. CollegeAmerica’s Catalog Arguments: Claims Four Through Six

¶ 144 Because CollegeAmerica makes similar assertions about the

LSO, EMT, and sonography claims, which were covered by

Consumer Act Claims Four through Six, we will address these

assertions together. Where CollegeAmerica makes an assertion

unique to one of the Consumer Act claims, we will point it out.

¶ 145 CollegeAmerica submits that its catalog listings and

advertisements for EMT, LSO, and sonography did not violate the

Consumer Act. As to each claim, CollegeAmerica contends that (1)

disclaimers on the catalog informed consumers of the unavailability

of, or limitations on, specific programs; (2) evidence at trial did not

prove it acted with an intent to deceive; and (3) the penalties

assessed against it were excessive. Concerning specific claims,

CollegeAmerica also submits that the statute of limitations bars the

EMT claim.

a. Disclaimers

¶ 146 CollegeAmerica contends that, had the trial court conducted a

holistic review of the advertisements, it would have determined that

60 its use of disclaimers mitigated any potential Consumer Act

violation. We disagree.

¶ 147 Regarding the EMT courses, CollegeAmerica submits that the

disclaimer on the 2006-2008 catalog stated the “EMT option may

not be available at all campuses.” It adds the 2009 catalog only

listed EMT as among the “possible certifications and licenses”

students could receive. And, it notes, a disclaimer on the catalogs

used from 2006 to 2011 notified students the medical specialties

program would “prepare students for possible certification or

licensing” for LSO, so students were informed the program may not

meet all requirements necessary for certification.

¶ 148 While use of a disclaimer may — in some cases — remedy

deceptive advertising, a disclaimer alone is not always sufficient to

eliminate the underlying deception. See May Dep’t Stores Co., 863

P.2d at 979 (noting disclosures are ineffective if the consumer may

be confused by the disclosure or if the advertising is false). In this

case, the trial court considered the record and determined that the

disclaimers did not adequately remedy CollegeAmerica’s deceptive

advertising.

61 ¶ 149 For example, the trial court found that CollegeAmerica was

repeatedly notified that, as early as 2008, consumers were confused

about the availability of EMT training. One CollegeAmerica

employee testified that, between 2009-2010, she had “constant

issues” with students complaining they believed they would be able

to get an EMT certification, but they did not learn it would not be

possible until late in their academic careers. Despite having this

knowledge, CollegeAmerica continued to list EMT certification in its

catalog, in admission binders, and on its website, and its

admissions employees discussed EMT certification during

interviews. Even with the disclosure listed on the catalog, some

students enrolled in the medical specialties program because they

believed they could obtain EMT certification.

¶ 150 The record also supports the trial court’s conclusion that the

LSO disclaimers did not remedy CollegeAmerica’s deceptive

advertising. Following a rule change by state regulators in 2005,

CollegeAmerica’s medical specialties program no longer met the

minimum qualifications needed to allow students to sit for the LSO

certification exam following graduation. In response,

CollegeAmerica added disclaimers to advertisements and the

62 catalog to clarify that the medical specialties program “would

prepare students for possible certification” or the program “leads to

certification.”

¶ 151 But evidence at trial indicated the disclaimers did not remedy

the students’ confusion over LSO certification. Despite knowing the

medical specialties program did not meet the LSO certification

requirements, CollegeAmerica continued to advertise that its

coursework would prepare students to sit for the LSO exam.

Admissions employees continued to lead potential students to

believe they would be prepared to sit for the LSO exam upon

graduation.

¶ 152 As early as 2008, CollegeAmerica received a report containing

complaints from students who believed they would be able to sit for

the LSO exam following graduation. In 2011, CollegeAmerica

received a letter from the Accrediting Commission including

statements from students such as the following:

• “[CollegeAmerica] should be honest about what programs

you can be certified in because a lot of people wanted to

do limited radiology and it’s not available.”

63 • “I was led to believe that I could obtain a radiology

certification and found out in the middle of my education

that information was untrue.”

And, at trial, several former students testified they felt they had

been misled into believing the medical specialties program would

prepare them to sit for the LSO exam.

¶ 153 We conclude the record supports the trial court’s

determination the disclaimers used by CollegeAmerica did not

remedy its deceptive advertising practices. Despite the disclaimers,

students remained confused and continued to enroll in

CollegeAmerica’s programs under the impression they would be

prepared to obtain EMT certification or sit for the LSO exam.

b. Intent to Deceive

¶ 154 CollegeAmerica submits that the record does not contain

evidence showing it knowingly engaged in a deceptive trade practice

regarding the EMT, LSO, and sonography claims. Specifically,

CollegeAmerica asserts that any representations about EMT

certification and the sonography program in the catalogs were — at

most — negligent or honest mistakes. Regarding the LSO claim,

CollegeAmerica contends that its conduct was not knowingly

64 deceptive because it took steps to address student confusion after it

became aware of their complaints. We are not persuaded.

¶ 155 To establish a claim under the Consumer Act, a plaintiff must

show the defendant “knowingly engaged in a deceptive trade

practice.” Crowe, 126 P.3d at 204. The Consumer Act provides an

absolute defense to misrepresentations caused by negligence or by

an honest mistake. Id. Consequently, liability under the Consumer

Act depends upon the knowledge or intent existing at the time of

the advertising conduct. Id.

¶ 156 In this case, there was evidence in the record from which the

trial court could infer CollegeAmerica knowingly engaged in

deceptive trade practices. See Chaffin, Inc. v. Wallain, 689 P.2d

684, 688 (Colo. App. 1984)(noting intent may be proved by

circumstances as well as direct proof). For example, from 2006 to

2010, CollegeAmerica advertised EMT as a possible certification in

its course catalog, in a flyer, in its admissions binder, on its

website, and during admissions interviews. But, during trial,

CollegeAmerica admitted it did not provide EMT training at any

Colorado location.

65 ¶ 157 A report by a state agency indicated some former

CollegeAmerica students “had enrolled believing . . . that completion

would qualify them to sit for [an LSO] exam” or they would be able

to get an EMT certification, “only to learn differently after having

completed much of the program.” Student complaints led several

CollegeAmerica faculty members to share their concerns about the

EMT and LSO programs with CollegeAmerica’s management during

faculty meetings. Despite being aware of the complaints and the

students’ confusion, CollegeAmerica continued to list EMT

certification on its website as late as August 2010.

¶ 158 Similarly, evidence in the record supported the trial court’s

conclusion CollegeAmerica knowingly deceived students through its

LSO advertisements. CollegeAmerica advertised LSO licensure as

part of its medical specialties program on television, in mailers and

in newspapers, on the internet, and during its admissions

interviews. But, following the 2005 rule change to LSO licensure,

CollegeAmerica was aware its program no longer met the minimum

requirements necessary to sit for the exam after graduation.

Between 2005 and 2010, CollegeAmerica received reports from

agencies, including the Accrediting Commission, containing

66 multiple consumer complaints. These complaints were evidence

students enrolled in the college believing they could sit for the LSO

exam after graduation, only to learn late in their education that the

program did not meet the minimum qualifications. Despite this,

CollegeAmerica continued to advertise LSO certification from 2006

to 2011, and admissions employees continued to tell students the

college’s programming met the requirements for the LSO exam.

¶ 159 The record also supports the trial court’s finding that

CollegeAmerica knowingly deceived its students by advertising a

nonexistent sonography program. After Mile High Medical Academy

closed, CollegeAmerica told prospective students it intended to

create its own sonography program the following year. But

CollegeAmerica was then aware it lacked the equipment necessary

to offer the program and the program had not been approved by the

Accrediting Commission.

¶ 160 CollegeAmerica listed the sonography program in its catalog

beginning in 2012. It began to receive inquiries from prospective

students about the program, and some students enrolled in

CollegeAmerica because admissions employees told them there

would be a sonography program. While CollegeAmerica eventually

67 decided to forgo a sonography program, it continued to advertise

the program in its catalog through April 2014.

¶ 161 Based on this evidence, we conclude the trial court could

reasonably infer CollegeAmerica was acting with knowledge of its

deceptive trade practices. In each situation, CollegeAmerica

advertised a program would lead to a specified result, despite

knowledge to the contrary that it would not. CollegeAmerica

learned of these problems in various ways: from misled students

who were confused and who filed complaints, from faculty

members, and from reports issued by the Accrediting Commission.

Yet CollegeAmerica continued to distribute the same

misinformation.

¶ 162 In response, CollegeAmerica asserts that the court erred in

deciding it possessed the state of mind necessary to violate the

Consumer Act because its conduct was more akin to being

negligent or to making honest mistakes. Regarding the sonography

program, it claims it did not knowingly deceive students because it

had a good faith intention to create the program. And, concerning

the LSO exam, it also asserts that it did not knowingly deceive

68 students because it sent out a letter addressing certification

requirements after the college learned of the student complaints.

¶ 163 But determining CollegeAmerica’s intent was a question of fact

left to the trial court’s sound discretion. Nixon v. City & County of

Denver, 2014 COA 172, ¶ 31. As discussed above, the court heard

testimony and reviewed voluminous evidence before concluding

CollegeAmerica knowingly engaged in deceptive advertising. As a

result, CollegeAmerica’s disagreement is with the trial court’s

factual findings; but, because the court’s findings are supported by

the record, we defer to its judgment. See Shekarchian, ¶ 27 (noting

where the trial court acts as fact finder, we defer to its credibility

determinations and will not disturb its findings of fact unless they

are clearly erroneous).

c. Excessive Penalties

¶ 164 CollegeAmerica submits that the trial court erred in imposing

the penalties it decided to impose. But CollegeAmerica only raises

this submission in a handful of sentences, and it does not develop

its reasoning for why the assessed penalties are impermissible. We

therefore will not consider this submission. See Gravina Siding &

Windows Co. v. Gravina, 2022 COA 50, ¶ 71 (“[I]t is not this court’s

69 function to speculate as to what a party’s argument might be.”

(alteration in original)(quoting People v. Palacios, 2018 COA 6M,

¶ 29)); see also Galiant Homes, LLC v. Herlik, 2025 COA 3, ¶ 14

(declining to “consider undeveloped and unsupported arguments”

(citation omitted)).

d. Statute of Limitations on EMT Claim

¶ 165 CollegeAmerica submits that the relevant advertising all

occurred before December 5, 2009, so the Attorney General’s claim

about its EMT program is barred by the statute of limitations. We

¶ 166 We interpret a statute of limitations consistently with its

purpose of promoting justice, avoiding unnecessary delay, and

preventing the litigation of stale claims. Murry v. GuideOne

Specialty Mut. Ins. Co., 194 P.3d 489, 491 (Colo. App. 2008). Under

the Consumer Act, a cause of action must be brought within “three

years after the date on which the false, misleading, or deceptive act

or practice occurred or the date on which the last in a series of such

acts or practices occurred.” § 6-1-115, C.R.S. 2025. If the evidence

is disputed, the point at which a claim accrues is generally a

question of fact left for the fact finder to resolve, see Jackson v. Am.

70 Fam. Mut. Ins. Co., 258 P.3d 328, 332 (Colo. App. 2011), and the

party asserting the statute of limitations as a defense bears the

burden of proof. Rademacher v. Greschler, 2020 CO 4, ¶ 30.

¶ 167 The trial court decided CollegeAmerica continued to

misrepresent the availability of EMT training past December 2009.

This decision is supported by the record.

¶ 168 The Attorney General filed the case against CollegeAmerica on

December 1, 2014, and the parties entered into a tolling agreement

that was effective beginning December 5, 2012. When considered

together with the Consumer Act’s statute of limitations found in

section 6-1-115, the effect of the tolling agreement on our analysis

of this issue is clear: If all the acts or practices occurred before

December 5, 2009, then the Consumer Act claim concerning the

EMT program would be barred. But, if one act or practice in the

series of acts or practices concerning the EMT program occurred

after December 5, 2009, the claim would not be barred.

¶ 169 We conclude the claim was not barred. The trial court heard

evidence indicating CollegeAmerica distributed its catalog

containing misleading representations about EMT training from

2006 to 2008, misrepresented EMT training to prospective students

71 during admissions interviews from January 2008 until August

2009, distributed an admissions binder containing misleading

statements about EMT training during 2009, and advertised the

availability of EMT training on CollegeAmerica’s Colorado-specific

website until August 2010. This evidence supports the court’s

determination CollegeAmerica engaged in a series of misleading

advertisements beginning as early as 2006, continuing through

2010, with at least one act — advertising EMT availability on its

website — occurring after December 5, 2009.

¶ 170 We are not persuaded by CollegeAmerica’s assertion that all

the deceptive advertisements occurred before the tolling date and

that the EMT advertisement on its website was “a simple mistake.”

The facts at trial concerning this issue were disputed, and we defer

to the trial court’s findings if they are supported by the record,

which they are. See Jackson, 258 P.3d at 332. For example, the

court was not required to accept testimony that including EMT

training on the website during 2010 was a “simple mistake.” When

acting as the fact finder, it is the trial court’s duty to determine the

credibility of witnesses, and we will not disturb those findings

absent clear error. See Shekarchian, ¶ 28.

72 VI. Claims Against the Individual Defendants and the Living Trust

¶ 171 We turn to the claims raised by the individual defendants,

Barney and Juhlin, and we will then address the claims raised by

the Carl Barney Living Trust.

A. Barney and Juhlin

¶ 172 Barney and Juhlin contend that the trial court made several

errors applying to each of the six Consumer Act violations.

¶ 173 First, they assert that the evidence did not support the court’s

finding that the advertisements were false. We discussed the

deceptive nature of CollegeAmerica’s advertising above, and,

because the same analysis and the same result applies to Barney

and Juhlin’s assertion, we will not repeat it now.

¶ 174 Second, they submit that the evidence did not establish they

acted with the intent to deceive consumers.

¶ 175 Third, they raise contentions unique to their individual

circumstances.

1. Applicable Law and Standard of Review

¶ 176 Individual corporate officers and agents can be held liable

under the Consumer Act. § 6-1-113(1), C.R.S. 2025 (“The

provisions of this article shall be available in a civil action for any

73 claim against any person who has engaged in or caused another to

engage in any deceptive trade practice listed in this article.”); see

also Hoang v. Arbess, 80 P.3d 863, 870 (Colo. App. 2003). A person

is defined as “an individual, corporation, business trust, estate,

trust, partnership, unincorporated association, or two or more

thereof having a joint or common interest, or any other legal or

commercial entity.” § 6-1-102(6), C.R.S. 2025.

¶ 177 Corporate agents are liable for torts of the corporation if they

approved of, sanctioned, directed, actively participated in, or

cooperated in such conduct. See Colo. Coffee Bean, LLC v. Peaberry

Coffee Inc., 251 P.3d 9, 28 (Colo. App. 2010)(citing Hoang, 80 P.3d

at 867-68). An agent may “be held personally liable for his or her

individual acts . . . even though committed on behalf of the

corporation, which is also held liable.” Hoang, 80 P.3d at 867. “At

a minimum, personal liability attaches to a defendant who was

directly involved in the conduct through conception or

authorization.” Id. at 868. But other direct involvement, “such as

active participation or cooperation, specific direction, or sanction of

the conduct, also may be sufficient.” Id. Whether an individual

defendant approved of, directed, actively participated in, or

74 cooperated in the corporation’s negligent conduct is usually a

question of fact. Id.

¶ 178 Barney and Juhlin assert that the trial court’s application of

Hoang stretched its holding beyond its breaking point. They cannot

be held liable under the Consumer Act, they add, because they did

not directly engage in CollegeAmerica’s alleged violations and

because extending liability to their conduct would be tantamount to

imposing liability on individuals simply by virtue of their positions

as corporate officers.

¶ 179 But Hoang did not impose liability on corporate officers merely

because they were corporate officers. Rather, Hoang imposed

important limits on such liability. For example, “an officer of a

corporation cannot be held personally liable for a corporation’s tort

solely by reason of his or her official capacity.” Id. at 867. And,

“[t]o be found personally liable to third persons for a tort, the officer

of a corporation must have participated in the tort.” Id. at 868

(emphasis added). Hoang has been around for over twenty years.

Although Barney and Juhlin claim it can be used to unfairly expand

the liability of corporate officers, they have not cited, and we have

75 not found, any case since Hoang was decided indicating Hoang

leads to such unfair results.

¶ 180 We reject Barney and Juhlin’s invitation to ignore Hoang;

instead we choose to follow its reasoning. Accordingly, we

conclude, for the following reasons, substantial evidence supported

the trial court’s findings that both men knowingly directed and

participated in CollegeAmerica’s misrepresentations.

2. Knowledge of Deception and Intent to Deceive

¶ 181 Barney and Juhlin submit that they lacked knowledge that

any of CollegeAmerica’s advertising was false and that they did not

intend to deceive prospective and current students. We disagree.

¶ 182 As we understand their contention, Barney and Juhlin seek to

challenge the adequacy of the evidence supporting the trial court’s

findings that (1) they had knowledge specific CollegeAmerica

advertisements were false or misleading, and (2) they intended to

deceive students by disseminating the false or misleading

advertisements. But their contention asks us to reweigh the

evidence and to substitute our judgment for that of the trial court.

This we cannot do. Id.

76 3. Specific Attacks on Consumer Act Claims

¶ 183 We turn to Barney and Juhlin’s attacks on each of the trial

court’s findings concerning the six Consumer Act claims.

a. Claim One: National Wage Data

¶ 184 We conclude there is sufficient evidence in the record to

support the trial court’s determination Barney and Juhlin were

liable for deceptively using national wage data in CollegeAmerica’s

¶ 185 First, evidence showed Barney and Juhlin acted with

knowledge that CollegeAmerica’s use of the national wage data in

advertising was misleading. For example, there was evidence

showing Barney was integral to the creation, operation, and

administration of many of CollegeAmerica’s programs and much of

its advertising.

¶ 186 Before 2012, Barney was president and chief executive officer

of a company providing senior management oversight and support

services to for-profit colleges, including CollegeAmerica. Barney

controlled this company through the Carl Barney Living Trust,

which was the company’s sole shareholder. Under Barney, this

77 company directly provided training, marketing, and accounting

services to CollegeAmerica.

¶ 187 This company merged into a successor company, the Center

for Excellence in Higher Education, and, from 2012 to 2014, Barney

was the chief marketing officer for the successor company.

¶ 188 Throughout the period covered by the Attorney General’s

complaint, Barney exercised control over the day-to-day operations

of CollegeAmerica via written policies and procedures. He wrote

letters, memos, and directives that CollegeAmerica’s staff was

expected to follow.

¶ 189 Barney also exercised significant control over CollegeAmerica’s

training and advertising programs. He had copyrights on

admissions and financial planning manuals, and he issued

directives included in them. As the chief marketing officer, Barney

controlled CollegeAmerica’s advertising through policies and

directives he had written. In 2008, he authored a checklist

applying to all of CollegeAmerica’s advertising. He was responsible

for reviewing all advertisements until mid-2011 to 2012, when

Juhlin was hired. From 2010 until the time this case was filed,

78 either Barney or Juhlin reviewed approximately 90% of

CollegeAmerica’s advertisements.

¶ 190 In 2014, Barney issued a letter directing staff to use national

wage data in CollegeAmerica’s advertisements. He also began the

process of collecting salary data from CollegeAmerica’s graduates.

He received regular information about the starting salaries of

CollegeAmerica’s graduates, which he distributed to

CollegeAmerica’s executives and career services staff.

¶ 191 This evidence supports the trial court’s finding Barney knew

CollegeAmerica’s use of the national wage data was misleading.

Barney created the procedures and checklists staff were required to

use when creating advertisements, and he was responsible for

approving all advertisements used by CollegeAmerica. He also

created the process for collecting wage data from CollegeAmerica

graduates, and he issued directives requiring CollegeAmerica to use

national wage data in advertisements.

¶ 192 Likewise, the evidence supports the trial court’s imposing

liability on Juhlin for his role in CollegeAmerica’s use of national

wage data in its advertisements. CollegeAmerica’s policy required

Juhlin or Barney to approve all of CollegeAmerica’s advertisements.

79 Juhlin received monthly operational reports including campus-level

information about graduate wages, and he had access to

CollegeAmerica’s data on graduate salaries. Mailers sent out as

recently as 2014 — when Juhlin was CollegeAmerica’s chief

executive officer — contained misleading national wage information.

These mailers were like approximately seventy-five other advertising

campaigns conducted by CollegeAmerica between 2010 and 2015.

¶ 193 The record also supports the trial court’s finding that Barney

and Juhlin intended to deceive students by using the national wage

data in advertising. At trial, a former director of internet advertising

for the Center for Excellence in Higher Education acknowledged

CollegeAmerica used information about earning potential — using

only national wage information — on its websites to “attract

students” to enroll. But the only salary information on the websites

was the national wage information. And, as noted above, the

advertising strategy was created and directed by Barney and Juhlin.

¶ 194 Finally, in 2015, the Accrediting Commission notified the

college its “advertisements include[d] information regarding

potential salaries . . . [that] may [have been] misleading.” Juhlin

informed the Commission that, “effective May 2015,

80 [CollegeAmerica] . . . no longer puts any income or salary

information into its advertisements.” Despite this assurance,

CollegeAmerica continued to include salary information in its

advertisements.

b. Claim Two: Employment Outcomes

¶ 195 We conclude the record supports the trial court’s

determination that Barney and Juhlin were liable for knowingly

misrepresenting graduate employment rates by posting inflated

employment rates online and around CollegeAmerica’s Colorado

campuses.

¶ 196 The Accrediting Commission required member schools to file

annual reports including metrics, such as the percentage of

graduates who found employment in a training-related field.

CollegeAmerica submitted its annual reports to the Commission in

October or November of each year.

¶ 197 Witnesses at trial testified CollegeAmerica was aware wage

information and employment placement rates were important to

prospective students’ decisions to attend CollegeAmerica.

CollegeAmerica leveraged this knowledge by emphasizing high

employment rates for specific degree programs during its

81 admissions process, on its website, and on postings across its

¶ 198 As is relevant to our analysis, Barney was an active

participant in CollegeAmerica’s misleading use of the inflated

employment rates. While at CollegeAmerica, Barney consistently

received operational reports containing detailed information about

CollegeAmerica’s graduates. And, as the architect of

CollegeAmerica’s training manuals and admissions, he was

essential in directing staff training and the methods used by

employees during the admissions process to convince students to

enroll. He was also responsible for reviewing CollegeAmerica’s

advertisements, which included approving the representations in

them.

¶ 199 Juhlin engaged in similar conduct. Like Barney, he approved

the representations made in CollegeAmerica’s advertisements by

reviewing and authorizing nearly all the advertisements used by the

college. He received monthly operations reports including

information on graduates’ wages and employment placement rates.

He attended and participated in the training of admissions staff.

82 ¶ 200 The record supports the trial court’s finding that Barney and

Juhlin intended to deceive CollegeAmerica’s students. They were

aware wage and employment information was necessary for

students to make an informed decision about enrolling in

CollegeAmerica. They both consistently received information about

starting salaries and employment of CollegeAmerica’s graduates.

And they were both aware of the significant problems surrounding

the wage and employment information they used that have been

described above.

c. Claim Three: EduPlan

¶ 201 We conclude the record supports the trial court’s finding

Barney and Juhlin knowingly misrepresented the benefits of

CollegeAmerica’s EduPlan because they actively participated in

CollegeAmerica’s misrepresentations about those benefits.

¶ 202 Barney created the EduPlan in 2002. He also drafted and

revised the college’s procedures and directives relating to the

EduPlan. CollegeAmerica advertised the EduPlan as a means by

which students could make college affordable and re-establish their

credit. Both Barney and Juhlin were responsible for reviewing and

83 approving all advertisements about the EduPlan used by

CollegeAmerica since 2010.

¶ 203 Admissions employees were responsible for administering the

EduPlan program in accordance with the directives Barney

authored. The employees were trained to minimize students’

objections under the plan to encourage higher enrollment.

Admissions employees typically spent about fifteen minutes

explaining the EduPlan paperwork, and only a few minutes

reviewing the monthly payment plans.

¶ 204 At trial, a CollegeAmerica admissions employee testified that

about twenty-five to thirty percent of students appeared confused

about the EduPlan, and she raised this concern with her

supervisor. CollegeAmerica also received feedback students were

“overloaded” with the information they received on the same day,

and prospective students told the college they did not want to take

out loans. But the college’s financial aid planners were trained to

provide students with the EduPlan information to see if they could

change the students’ minds. Some employees also raised concerns

that some prospective students could not afford CollegeAmerica’s

tuition and the EduPlan payments, but these concerns were

84 dismissed because, “in the end, it was the admission consultant’s

job to push forward with enrollment.”

¶ 205 Barney and Juhlin were aware significant numbers of

students were unable to afford their EduPlan payments. The entity

hired to service the EduPlan sent monthly lists of delinquent

EduPlan borrowers to CollegeAmerica.

¶ 206 Barney authorized the sale of the EduPlan debt to buyers in

both 2007 and 2013.

d. Claim Four: LSO Certification

¶ 207 We conclude the record supports the trial court’s finding that

Barney and Juhlin knowingly misrepresented LSO licensure as part

of CollegeAmerica’s medical specialties program.

¶ 208 Barney was an active participant in the creation of

CollegeAmerica’s medical specialties program, training

CollegeAmerica’s admissions staff, and reviewing and approving the

LSO advertisements. He created the program in the early 2000s.

¶ 209 In 2009, Barney identified LSO licensure as an “advertising

opportunit[y]” for the college. From 2008 to 2011, CollegeAmerica

advertised its medical specialties program as leading to LSO

certification. CollegeAmerica made similar statements in its course

85 catalog, which was published from 2006 to 2011. Barney approved

CollegeAmerica’s LSO advertisements because he reviewed and

authorized nearly all of them during this period. And the

procedures in the manual Barney wrote directed employees to

continue telling students that LSO certification was available under

the medical specialties program through at least 2012.

¶ 210 Juhlin was also an active participant in CollegeAmerica’s

dissemination of misleading LSO advertisements. Like Barney,

Juhlin shared responsibility for reviewing and approving all of

CollegeAmerica’s advertisements, including advertising about the

LSO program on television, and approving advertisements and

catalog listings running through 2011. Juhlin was also aware

CollegeAmerica’s programs did not prepare students for the LSO

licensure exam.

¶ 211 Although they were aware of the state regulators’ 2005 rule

change resulting in CollegeAmerica’s medical specialties program no

longer meeting the clinical hour requirement need for students to

sit for the LSO examination upon graduation, Barney and Juhlin

continued to make misleading representations about the LSO

programs to prospective students.

86 ¶ 212 For example, mailed advertisements sent from 2006 to 2011

told students CollegeAmerica’s programs would “prepare students

for possible certification or licensing” in LSO. Additionally, flyers

posted on CollegeAmerica’s Denver campus inaccurately informed

students the only prerequisite for the LSO exam was “completi[ng]

all the courses, including [the] externship.” Juhlin testified he was

aware this inaccurate flyer was posted around the campus

sometime around 2010. Admissions employees, complying with

CollegeAmerica’s procedures created by Barney, continued to tell

students their coursework would prepare them to sit for the LSO

exam upon graduation.

¶ 213 As early as 2008, CollegeAmerica began receiving complaints

from disappointed students who thought they would be able to sit

for the LSO exam after graduating. After receiving these

complaints, Barney sent out a letter addressing certification

requirements for all of CollegeAmerica’s programs. But again, in

2011, the Accrediting Commission sent a letter to CollegeAmerica

informing it of student complaints about its representation of LSO

certification. Despite this information, Barney and Juhlin

87 continued to review and approve CollegeAmerica’s misleading

representations about LSO certification.

e. Claim Five: EMT Certification

¶ 214 We conclude the record supports the trial court’s finding

Barney knowingly misrepresented the availability of EMT training at

CollegeAmerica’s Colorado campuses. We also conclude, however,

that the court erred when it found that Juhlin knowingly did so

because he was not employed at CollegeAmerica during the relevant

time. Nevertheless, we conclude that this single error was

harmless, considering all the other misrepresentations concerning

other claims in which Juhlin was involved. Cf. Terra Mgmt. Grp.,

LLC v. Keaten, 2025 CO 40, ¶ 42 (putative error in making an

adverse inference was harmless when a court also relied on other

evidence in making findings); In re Marriage of Adamson, 626 P.2d

739, 741 (Colo. App. 1981)(an evidentiary ruling did not amount to

reversible error when other cumulative evidence supported the

judgment). The judgments against both Barney and Juhlin

therefore stand.

¶ 215 Returning to Barney, he approved CollegeAmerica’s misleading

representations about the EMT certification by reviewing and

88 approving the advertisements concerning it. For example, between

2006 and 2010, CollegeAmerica advertised students could earn the

EMT certification through course catalogs, flyers, admissions

binders, its website, and admissions interviews. The

advertisements were specific to CollegeAmerica’s Colorado and

Wyoming campuses, and they contained a general disclaimer

indicating not all locations provided the EMT option. But

CollegeAmerica never offered the EMT certification at any of its

Colorado campuses, and there were no specific disclosures the EMT

certification was not offered in Colorado.

¶ 216 Barney was also instrumental in creating the procedures and

training followed by admissions employees. During admissions

interviews, CollegeAmerica employees routinely informed students

the medical specialties program would prepare students for the

certifications listed in the brochures, including the EMT

certification. Students also testified they enrolled in the medical

specialties program with the understanding it would lead to an EMT

certification.

¶ 217 Evidence supports the trial court’s finding Barney intended to

deceive prospective students by approving misleading

89 advertisements about CollegeAmerica’s EMT program. Students

testified that, based on CollegeAmerica’s advertisements, they

enrolled in the medical specialties program believing they would

eventually obtain the EMT certification.

¶ 218 The Accrediting Commission sent a letter to CollegeAmerica in

2008 informing it students were enrolling in the medical specialties

program based on their understanding the program would lead to

the EMT certification. Despite this letter, CollegeAmerica continued

to advertise the EMT certification as an available option in Colorado

through 2010.

f. Claim Six: Sonography

¶ 219 We conclude the record supports the trial court’s finding that

Barney and Juhlin knowingly made false representations about the

availability of a sonography degree program at CollegeAmerica’s

Colorado campuses. Barney and Juhlin actively participated in

CollegeAmerica’s false representations by reviewing and approving

CollegeAmerica’s advertisements and by creating and controlling

the training and procedures used by the college’s admissions

90 ¶ 220 In 2010, CollegeAmerica began informing prospective students

it would launch a sonography program within the next year. By

2012, CollegeAmerica began advertising a sonography program in

its course catalog. These advertisements continued until at least

April 2014. Under CollegeAmerica’s procedures, all these

advertisements required either Barney’s or Juhlin’s approval.

¶ 221 Admissions employees also encouraged students interested in

sonography to enroll in CollegeAmerica. Employees informed

students CollegeAmerica would have a sonography program, adding

students should enroll in the health administration program in the

meantime because that program’s coursework would correspond

with the sonography program. Students testified they would not

have enrolled in CollegeAmerica had they known there was a

possibility it would not offer sonography.

¶ 222 CollegeAmerica advertised a sonography program that never

existed. It took initial steps to obtain accreditation for a

sonography program through the Accrediting Commission, but it

never completed the process. After conducting a market study in

late 2012, CollegeAmerica decided not to create a sonography

91 program. But it continued to list sonography as a degree after it

decided to forgo creating the program.

¶ 223 The record also supports the trial court’s finding Barney and

Juhlin intended to deceive prospective students. Despite deciding,

in 2012, CollegeAmerica would not create a sonography program,

Barney and Juhlin continued to review and approve advertisements

in the college’s catalog telling students it offered a sonography

program. Indeed, Barney and Juhlin continued to advertise the

nonexistent sonography program even after students and employees

raised concerns. In early 2013, the Accrediting Commission sent

CollegeAmerica a complaint from a prospective student who was

concerned that the catalog listed sonography as an option but that

no Colorado campus offered the program. And a dean on

CollegeAmerica’s Fort Collins campus said there were frequent

inquiries from students about the sonography program, but

CollegeAmerica “can’t offer it, and I find that a little unsettling with

potential students. They all follow-up with well why does it say you

have it in the catalog?”

¶ 224 At a meeting in late 2013, the executive team, which included

Juhlin, decided to leave the sonography program in the catalog.

92 The sonography program was listed in the catalog until at least

April 2014.

4. Barney and Juhlin’s Other Contentions

¶ 225 Both Barney and Juhlin assert that (1) the reasonable

consumer standard applies to determining whether the national

wage data advertisement violated the Consumer Act; (2) the trial

court engaged in improper policymaking by requiring disclosure of

CollegeAmerica-specific wage data; and (3) no Consumer Act

violations could have occurred where CollegeAmerica’s advertising

was truthful.

¶ 226 These assertions, however, are the same as those raised by the

corporate defendants, and they are based on the same factual

allegations. We reject these contentions based on our previous

analysis. Supra Part V.A-B.

B. The Carl Barney Living Trust

¶ 227 The living trust submits that it cannot be held liable for the

Consumer Act violations under the alter ego theory based solely on

Barney’s control over the trust. Under these circumstances, we

93 ¶ 228 To establish liability under an alter ego theory, a court must

decide (1) the trust is the alter ego of the defendant; (2) the trust’s

separate form was used to perpetrate a fraud or defeat a rightful

claim; and (3) piercing the veil would achieve an equitable result.

Dill v. Rembrandt Grp., Inc., 2020 COA 69, ¶ 42. Although the trust

appears to challenge all three elements of this test in its briefing, we

shall only address its contention concerning the first element

because it did not sufficiently develop its contentions concerning

the second and third elements. See Sinclair Transp. Co. v.

Sandberg, 2014 COA 76M, ¶ 74 “[B]ald assertions of error that lack

any meaningful explanation or support in legal authority . . .

violate[] C.A.R. 28(a) and will not be addressed.”).

¶ 229 We review de novo a court’s legal conclusions in finding an

alter ego and in piercing the corporate veil, and we examine its

related factual findings for clear error. Sedgwick Props. Dev. Corp.

v. Hinds, 2019 COA 102, ¶ 22. We defer to the court’s factual

findings and disturb them only when they are not supported by the

record. Amos v. Aspen Alps 123, LLC, 2012 CO 46, ¶ 25.

94 ¶ 230 Under the first factor of the Dill test, the court must determine

whether the corporate entity is the alter ego of the person or entity

at issue. Dill, ¶ 28. An alter ego relationship exists when a legal

entity, such as a corporation or an LLC, is merely an

instrumentality for the transaction of the shareholders’ or members’

affairs and “there is such unity of interest in ownership that the

separate personalities of the corporation [or LLC] and the owners no

longer exist.” In re Phillips, 139 P.3d 639, 644 (Colo. 2006)(citation

omitted). In making this determination, courts consider factors

such as whether (1) the entity is operated as a distinct business

entity; (2) funds and assets are commingled; (3) adequate business

records are maintained; (4) the nature and form of the entity’s

ownership and control facilitate misuse by an insider; (5) the entity

is used as a “mere shell”; (6) the entity is thinly capitalized; (7) legal

formalities are disregarded; and (8) the entity’s funds or assets are

used for nonbusiness purposes. Dill, ¶ 29. Courts consider the

specific facts of the case but need not find every factor is satisfied to

decide an entity is an alter ego. Id. Depending on the entity in

question, some of the factors will not readily apply. Sedgwick

Props., ¶ 36.

95 2. Analysis

¶ 231 We conclude the record supports the trial court’s conclusion

that the trust operated as Barney’s alter ego.

¶ 232 First, the way the trust operated, and the nature and form of

its ownership, drastically increased the risk of its misuse. Barney

was the sole shareholder, trustee, and beneficiary of the trust. He

had control over the trust’s operations, and he benefited from its

business decisions.

¶ 233 Second, Barney used his control over the trust to exert control

over the Center for Excellence in Higher Education. The trust made

two loans, one of $200,000,000 and one of $231,000,000, to

finance the Center’s creation and its merger with other for-profit

colleges Barney owned, and he was the Center’s sole member and

chairman. As the trust’s sole shareholder, he was the Center’s

largest creditor, and he used the trust to fund and to control the

Center’s operations. In these ways, Barney’s position and control

blurred the lines between him and the trust. See Lakota Girl Scout

Council, Inc. v. Havey Fund-Raising Mgmt., Inc., 519 F.2d 634, 638

(8th Cir. 1975)(piercing the corporate veil was proper when, among

other things, evidence showed an individual was the corporation’s

96 sole shareholder; the individual was the corporation’s sole

incorporator; and only the individual gave loans to and borrowed

money from the corporation).

¶ 234 After the 2013 merger, the Center for Excellence in Higher

Education filed a change of ownership application with the

Department to maintain CollegeAmerica’s eligibility to participate in

Title IV funding. But the Department denied the Center’s

application because it determined that it was not operated as a

nonprofit. The Department reached this conclusion in part because

“the [t]rust retained the benefit of a continued stream of Title IV

revenues and Mr. Barney obtained significant control of [the

successor company], and, by extension, retained control of the

[various colleges].” The Department decided “the payments made

under the [loans], which are contingent on [the Center] ‘making

money,’ are essentially profit distributions to the trust —

substantially the same as it received when it was the sole

shareholder of the [various colleges].”

¶ 235 The Department’s denial of the successor company’s

application focused largely on the Department’s concern that

Barney’s control and his use of the trust would allow him to control

97 and extract profits from the Center. While we are not bound by the

decisions of federal agencies, we think the Department’s reasoning

is persuasive, and it supports our conclusion the Center was

Barney’s alter ego.

¶ 236 The trial court’s and remand court’s judgments are affirmed.

CHIEF JUDGE ROMÁN and JUDGE TOW concur.