State of Colorado v. Robert J. Hopp & Associates, LLC

2018 COA 69, 442 P.3d 986

• Court: Colorado Court of Appeals
• Decided: May 17, 2018
• Docket: 16CA1983
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY May 17, 2018

2018COA69

No. 16CA1983, State of Colorado v. Robert J. Hopp and Associates, LLC — Consumers — Colorado Consumer Protection Act — Colorado Fair Debt Collection Practices Act

A division of the court of appeals considers whether the

Colorado Consumer Protection Act (CCPA) and the Colorado Fair

Debt Collection Practices Act (CFDCPA) prohibit foreclosure

attorneys and title companies from billing mortgage servicer clients

foreclosure commitment charges when those full costs were not

actually incurred, despite knowing that these fraudulent costs

would be assessed against homeowners in foreclosure. The division

concludes that such a practice violates the CCPA and CFDCPA. COLORADO COURT OF APPEALS 2018COA69

Court of Appeals No. 16CA1983 City and County of Denver District Court No. 14CV34780 Honorable Shelley I. Gilman, Judge

State of Colorado, ex rel. Cynthia H. Coffman, Attorney General for the State of Colorado; and Julie Ann Meade, Administrator, Uniform Consumer Credit Code,

Plaintiffs-Appellees and Cross-Appellants,

v.

Robert J. Hopp & Associates, LLC; The Hopp Law Firm, LLC; National Title, LLC, d/b/a Horizon National Title insurance, LLC; First National Title Residential, LLC; Safehaus Holdings Group, LLC; and Robert J. Hopp,

Defendants-Appellants and Cross-Appellees,

JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS

Division I Opinion by JUDGE ROTHENBERG* Taubman and Harris, JJ., concur

Announced May 17, 2018

Cynthia H. Coffman, Attorney General, Jennifer H. Hunt, First Assistant Attorney General, Erik R. Neusch, Senior Assistant Attorney General, Rebecca M. Taylor, Mark L. Boehmer, Assistant Attorneys General, Denver, Colorado, for Plaintiffs-Appellees and Cross-Appellants

Richards Carrington, LLC, Christopher P. Carrington, Ruth M. Moore, Denver, Colorado, for Defendants-Appellants and Cross-Appellees

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2017. ¶1 In a case of first impression in the Colorado courts, we

address whether the Colorado Consumer Protection Act (CCPA) and

the Colorado Fair Debt Collection Practices Act (CFDCPA) prohibit

foreclosure attorneys and title companies from billing mortgage

servicer clients foreclosure commitment charges when those full

costs were not actually incurred, despite knowing that these

fraudulent costs would be assessed against homeowners in

foreclosure. We conclude that such a practice violates the CCPA

and CFDCPA.

¶2 Plaintiffs, the State of Colorado, ex rel. Cynthia H. Coffman,

Attorney General for the State of Colorado; and Julie Ann Meade,

Administrator, Uniform Consumer Credit Code, brought a civil law

enforcement action against defendants, foreclosure lawyer Robert J.

Hopp; his law firms, Robert J. Hopp & Associates, LLC, and The

Hopp Law Firm, LLC (collectively, the law firms); as well as Hopp’s

affiliated title companies, National Title, LLC, d/b/a Horizon

National Title Insurance, LLC, and First National Title Residential,

LLC; and Safehaus Holdings Group, LLC, a company owned by

Hopp and his wife Lori L. Hopp, which, through its subsidiary,

provided accounting and bookkeeping services for the law firms and

1 title companies. The State alleged that Hopp, the law firms, and

their affiliated companies violated the CCPA and the CFDCPA by

engaging in the billing practice described above. The district court

agreed, for the most part, with the State and imposed penalties

totaling $624,000. While Hopp’s wife, Lori Hopp, was a defendant

in the district court action, she was not found liable for any claims

and is not named as a party to this appeal.

¶3 Defendants appeal the trial court’s judgment; plaintiffs

cross-appeal an evidentiary ruling.

¶4 We affirm the district court’s judgment and remand the case

with directions.

I. Background

¶5 The trial court, in a thorough written order, found the

following facts and described the mechanics of the foreclosure

process in Colorado. The parties do not dispute these facts or

description.

A. Foreclosure Process

¶6 Generally, in Colorado, a person who borrows money from a

lender to purchase real property signs a promissory note and an

accompanying deed of trust. A deed of trust is “a security

2 instrument containing a grant to a public trustee together with a

power of sale.” § 38-38-100.3(7), C.R.S. 2017. In the deed of trust,

the borrower agrees that, upon default, the lender can initiate a

nonjudicial foreclosure proceeding, which can result in the public

trustee’s eventual sale of the property.

¶7 A foreclosure may be withdrawn prior to sale for various

reasons, such as the borrower’s agreement to a loan modification,

disposal of the property through a short sale, the lender’s

agreement to a deed-in-lieu of foreclosure, or the borrower’s cure of

the default. The public trustee for El Paso County testified that

between 2008 and 2016, approximately half of the foreclosures filed

in Colorado were withdrawn before sale.

B. Cure Process

¶8 If a borrower wishes to end the foreclosure proceedings by

curing the default on the property, he or she may file a written

notice of intent to cure with the public trustee. § 38-38-104(1),

C.R.S. 2017. The public trustee must promptly contact the lender’s

attorney to request a written “cure statement” itemizing all sums

necessary to cure the default, including missed payments, accrued

interest, late fees, penalties, and the fees and costs associated with

3 the foreclosure. § 38-38-104(2)(a)(I). The lender’s attorney may

include good faith estimates with respect to interest, fees, and

costs. § 38-38-104(5).

C. Bid Process

¶9 If a foreclosure action is not withdrawn, the property that

serves as collateral for the borrower’s loan proceeds to sale. Before

the scheduled sale date, the holder of the evidence of debt, or the

holder’s attorney, submits a bid to the public trustee. § 38-38-

106(2), (6), C.R.S. 2017. The holder’s bid sets the minimum price

for bidding on the property and that bid must be at least the

lender’s good faith estimate of the fair market value of the property,

less certain sums identified in section 38-38-106(6). The bid

includes the attorney fees and costs.

¶ 10 If the property is purchased at sale for less than the borrower’s

total indebtedness to the lender, the lender may pursue the

collection of the deficiency from the borrower through other

avenues. If the property is purchased for more than the total

amount of indebtedness to the lender, any overbid may be claimed

by others with interests in the property, and then, upon payment of

those claims, by the borrower.

4 D. Title Commitments In Foreclosure Actions

¶ 11 At the beginning of a nonjudicial foreclosure action, the

lender’s attorney orders a title product for the subject property. A

foreclosure commitment is a title insurance product used to ensure

that insurable and marketable title is delivered to the lender at the

end of a foreclosure. It is a commitment to issue a title insurance

policy upon the satisfaction of certain conditions. A foreclosure

commitment often contains a hold-open provision so it does not

expire until twenty-four months after it is issued, in contrast to

non-foreclosure title commitments, which usually expire six months

after issuance.

¶ 12 The title agent’s underwriter sets the cost of title products

such as a foreclosure commitment. The underwriter sets forth

costs in the title company’s rate manual and submits the manual to

the Division of Insurance (DOI) for approval. The DOI reviews the

rates as part of its regulation of the insurance industry. See § 10-4-

401, C.R.S. 2017. A title agent is bound by the rate filed with the

DOI and may not charge more or less than that rate. Div. of Ins.

Reg. 8-1-1, § 6(F)-(G), 3 Code Colo. Regs. 702-8.

5 ¶ 13 In the event that a foreclosure action is not completed because

the homeowner cures the deficiency by paying the asserted amount

due in the foreclosure action, or the foreclosure action is otherwise

cancelled or withdrawn, the foreclosure sale does not occur and the

title company cannot issue a title insurance policy.

E. The Defendants

¶ 14 Hopp is an attorney. His law firms provided legal services for

mortgage defaults, including residential foreclosures, in Colorado.

¶ 15 Through the law firms, Hopp represented loan servicers, such

as the Colorado Housing and Finance Authority, JPMorgan Chase,

and Bank of America in foreclosure proceedings. The

servicers-clients are not parties to this action.

¶ 16 Hopp owned several businesses which supported the law

firms’ foreclosure services. Together with his wife, Hopp owned a

holding group, SafeHaus Holdings Group, LLC (SafeHaus).

Safehaus owned a subsidiary which performed accounting and

bookkeeping services for the law firms. Safehaus also owned a title

company, National Title, LLC, which provided foreclosure

commitments for the law firms. Hopp was a partial owner of

another title company, First National Title Residential, LLC, which

6 also provided foreclosure commitments to the law firms in 2008 and

2009.

¶ 17 National Title and First National Title Residential were

authorized to issue title commitments and policies through an

underwriter, Fidelity National Title Insurance Company (Fidelity).

Fidelity’s manual set forth, in relevant part, the following rates and

charges for a foreclosure commitment:

I-16 Foreclosure Commitment:

This section applies to a title commitment issued to facilitate the foreclosure of a deed of trust, including a policy to be issuable, within a 24-month period after the commitment date, naming as proposed insured the grantee of a Confirmation Deed following the foreclosure, the holder of a certificate of redemption or the grantee upon the consummation of a resale between the holder of a Confirmation Deed and a bona fide third party purchaser within the 24-month hold open period. . . .

The charge will be 110% of the applicable Schedule of Basic Rates based on the unpaid balance of the deed of trust being foreclosed.

In the event of a cancellation prior to the public trustee’s sale there shall be a charge of $300.00 to $750.00, based on the amount of work performed. Cancellations following the public trustee’s sale shall be subject to the full charges set forth in the second paragraph.

7 ¶ 18 While representing the servicers, the law firms typically

ordered foreclosure commitments from Hopp’s title companies.

National Title invoiced the law firms a charge of 110% of the

schedule of basic rates upon the delivery of a foreclosure

commitment. As a routine practice, within ten days of filing a

foreclosure action, the law firms passed this cost on to the servicers

by billing and seeking reimbursement from them for the charge of

110% of the schedule of basic rates. This is the same amount that

Fidelity’s manual listed as the charge for a completed title insurance

policy, even though a policy had not yet been issued, and in many

cases, never would be issued if a foreclosure was cured or

cancelled.

F. Procedural History

¶ 19 After a lengthy investigation into defendants’ billing practices,

plaintiffs filed a civil enforcement action. Their 2014 complaint

cites to the former location of the CFDCPA, sections 12-14-101 to -

137, C.R.S. 2014. The CFDCPA was repealed and replaced in 2017

by sections 5-16-101 to -135, C.R.S. 2017. In this opinion, we cite

throughout to the current version of the CFDCPA which, as relevant

here, is not materially different.

8 ¶ 20 The plaintiffs asserted the following claims:

 All defendants violated section 6-1-105(1)(l), C.R.S. 2017,

of the CCPA by making false or misleading statements

concerning the price of services claimed for title search

costs, title commitments, and court filing costs.

 The law firms and Hopp violated section 5-16-107(1)(b)(I),

C.R.S. 2017, of the CFDCPA by using false, deceptive, or

misleading representations in connection with the

collection of foreclosure-related debt.

 The law firms and Hopp violated section 5-16-108(1)(a),

C.R.S. 2017, of the CFDCPA by collecting amounts that

were not expressly authorized by the agreements

borrowers had signed creating their debt, or permitted by

law, and using unfair and unconscionable means to

collect that debt.

Plaintiffs sought a judgment against defendants for declaratory

relief, injunctive relief, disgorgement of unjustly obtained proceeds,

civil penalties, and attorney fees and costs. Defendants moved to

dismiss the action as untimely.

9 ¶ 21 The district court issued numerous, detailed written orders in

this case. It denied defendants’ motion to dismiss for untimeliness

prior to trial. The court again addressed and rejected defendants’

arguments that plaintiffs’ claims were barred by the statute of

limitations set forth in the CFDCPA in its detailed written judgment.

¶ 22 The district court concluded that defendants, with the

exception of Lori Hopp, violated the CCPA in their invoicing for

foreclosure commitments ordered from the affiliated title

companies. It ruled that the law firms knowingly made “false and

misleading statements of fact concerning the price of foreclosure

commitments by charging for and collecting policy premium

amounts shortly after the initiation of the foreclosure proceeding

and by representing that these costs were actually incurred.” In

doing so, the court credited the testimony that emphasized that a

title premium charge was not earned unless a policy was issued.

¶ 23 The trial court further concluded that Hopp and the law firms

violated the CFDCPA by using “false, deceptive, and misleading

representations in connection with the collection of homeowners’

debt because they falsely represented the 110% policy premium

amount as an actual, necessary, reasonable, and actually incurred

10 cost, when that amount was not actually incurred by the Hopp law

firms.” Hopp directed the law firms to invoice these amounts to

servicers, knowing they would be ultimately charged to

homeowners.

¶ 24 However, the district court concluded that the State failed to

prove its CCPA claim alleging Hopp and the law firms engaged in

deceptive trade practices when they collected a full title policy

premium from servicers, but paid nothing — neither a policy

premium nor a cancellation fee — when it ordered title

commitments through a nonaffiliated title agency.

¶ 25 The district court declined to exercise its discretion to order

disgorgement, based on its finding that the State failed to present

trustworthy and reliable evidence that its calculations reasonably

approximated the amount of defendants’ unjustly obtained gains.

¶ 26 The court entered a permanent injunction prohibiting Hopp,

his law firms, or any other persons or entities acting under their

control, or in concert with them, from engaging in any of the

conduct that was the subject of the case, “including claiming

against homeowners in foreclosure a policy premium for a

foreclosure commitment before that cost is actually incurred.” The

11 district court imposed penalties on defendants under the CCPA,

which were capped by statute at $500,000. It further imposed

penalties on Hopp and the law firms in the amount of $1,374,600

under the CFDCPA. Upon consideration of defendants’ motion to

amend its judgment pursuant to C.R.C.P. 59, the district court

reduced the penalties imposed under the CFDCPA to a total of

$124,200. Because the statutory amendment allowing penalties

was not effective until July 1, 2011, the district court recalculated

the total penalty amount to include only transactions occurring

after the effective date. Ch. 121, sec. 5, § 12-14-135, 2011 Colo.

Sess. Laws 382; sec. 7, 2011 Colo. Sess. Laws at 382. The district

court further awarded the State its reasonable costs and attorney

fees incurred in enforcing the CCPA and CFDCPA. Defendants

appeal the district court’s award of plaintiffs’ attorney fees and

costs in a separate case, State v. Hopp, 2018 COA 71, also

announced today.

II. Statute of Limitations for Penalties

¶ 27 Defendants contend the trial court erred by imposing penalties

under the CCPA and the CFDCPA because they were barred by the

one-year limitation period set forth in section 13-80-103(1)(d),

12 C.R.S. 2017, as well as section 5-16-113(5), C.R.S. 2017 (CFDCPA

claims), and section 6-1-115, C.R.S. 2017 (CCPA claims). We

disagree.

A. Standard of Review and Statute of Limitations

¶ 28 “When a claim accrues under a statute of limitations is an

issue of law. We review de novo a trial court’s application of the

statute of limitations where the facts relevant to the date on which

the statute of limitations accrues are undisputed.” Kovac v.

Farmers Ins. Exch., 2017 COA 7M, ¶ 13 (citation omitted).

B. Background

¶ 29 Defendants moved to dismiss plaintiffs’ claims against them,

arguing they were time barred under section 5-16-113(5). Section

5-16-113(5) is contained in a section of the CFDCPA which

establishes a private cause of action and is titled “Civil Liability.” It

requires that any action be brought within one year of the date of

the violation. A separate section of the CFDCPA provides for

government enforcement actions. § 5-16-127, C.R.S. 2017.

¶ 30 The trial court relied on analogous federal authority applying

the federal Fair Debt Collection Practices Act, which limited the

application of the comparable statute of limitations provision set

13 forth within its private action section to private causes of action

only, not to government enforcement actions. It then reasoned that,

because the administrator charged with enforcement of the

CFDCPA is the administrator of the Uniform Consumer Credit Code

(UCCC), the power of the administrator arises from the UCCC, and

the statute of limitations set forth in the CFDCPA does not apply to

governmental enforcement actions. The trial court rejected

defendants’ alternate arguments that the one-year statute of

limitations from the catchall section 13-80-103(1)(d) should apply,

because it was more general than any specific limitation provisions

contained within the UCCC, which it concluded controlled here.

Accordingly, the court denied defendants’ motion to dismiss the

action as untimely, but did not articulate what it concluded the

applicable statute of limitations for the CCPA and CFDCPA claims

would be.

¶ 31 On appeal, defendants contend the one-year limitation period

set forth within the general catchall section 13-80-103(1)(d) should

be applied, because, regardless of the theory on which the suit is

brought, it states it includes “[a]ll actions for any penalty or

forfeiture of any penal statutes.” Defendants argue that plaintiffs’

14 CCPA and CFDCPA claims are barred under a one-year statute of

limitations because the underlying conduct for the action occurred

more than one year before the action was filed. While we agree with

the trial court’s conclusion that plaintiffs’ CCPA and CFDCPA

claims were not barred by the statute of limitations, we do so on

different grounds, and do not apply the UCCC.

¶ 32 The CCPA contains a specific three-year statute of limitations.

§ 6-1-115. As relevant here, it allows the three-year period to

accrue on the “date on which the last in a series of such acts or

practices occurred . . . .” Id. “In the absence of a clear expression

of legislative intent to the contrary, a statute of limitations

specifically addressing a particular class of cases will control over a

more general or catch-all statute of limitations.” Mortg. Invs. Corp.

v. Battle Mountain Corp., 70 P.3d 1176, 1185 (Colo. 2003).

¶ 33 Because the CCPA contains a statute of limitations specifically

addressing cases brought under its provisions, the three-year

statute of limitations controls over the more general section 13-80-

103(1)(d). See Jenkins v. Haymore, 208 P.3d 265, 268 (Colo. App.

2007) (“When choosing between statutes that govern limitation

periods, courts employ three rules: (1) the more specific statute

15 applies; (2) a later enacted statute controls over an earlier enacted

statute; and (3) courts should select the statute that provides the

longer limitation period.”), aff’d on other grounds sub nom. Jenkins

v. Panama Canal Ry. Co., 208 P.3d 238 (Colo. 2009). As the series

of acts underlying the CCPA claim extended into 2013, plaintiffs’

claims filed on December 19, 2014, were timely filed within the

three-year period.

C. CFDCPA

¶ 34 In 2017, the legislature passed a law creating a two-year

limitations period for administrator actions from the date on which

a violation allegedly occurred. S.B. 17-215, 71st Gen. Assemb., 1st

Reg. Sess. (May 1, 2017). However, during the years in question for

this case, the CFDCPA did not include a clear statute of limitations

for government enforcement actions brought under the CFDCPA.

¶ 35 Defendants argue that the court should have applied the

statute of limitations for private actions appearing in section 5-16-

113(5), which provides for a one-year limitations period “from the

date on which the violation occurs.” However, for several reasons,

we are not persuaded that the legislature clearly intended this

period to apply to government enforcement actions.

16 ¶ 36 When the former version of section 5-6-113 (previously section

12-14-113(4), C.R.S. 2014) was enacted in 1985, statutes of

limitation generally did not apply to actions brought by the

government under the doctrine of nullum tempus occurrit regi, the

English common law rule that “time does not run against the king”

absent an express statement by the legislature otherwise. See

Shootman v. Dep’t of Transp., 926 P.2d 1200, 1202-03 (Colo. 1996).

It was not until 1996 that the supreme court, in Shootman,

concluded that the doctrine of nullum tempus no longer applied in

Colorado. Id. When the one-year statute of limitations was

enacted, it was located in a section of the statute addressing actions

brought by private parties. Ch. 218, sec. 7, § 12-14-113, 2000

Colo. Sess. Laws 938. It included no express language indicating it

was also intended to apply to government actions. Id.

¶ 37 “The statute of limitation in effect when a cause of action

accrues governs the time within which a civil action must be

commenced.” Samples-Ehrlich v. Simon, 876 P.2d 108, 111 (Colo.

App. 1994). Because the CFDCPA did not contain a clear statute of

limitations applying to government enforcement actions at the times

relevant to this action, a catch-all provision applies. Mortg. Invs.

17 Corp., 70 P.3d at 1185. Section 13-80-102(1)(i), C.R.S. 2017, sets

forth a two-year statute of limitations for “[a]ll other actions of every

kind for which no other period of limitations is provided,” while

section 13-80-103(1)(d) lists a one-year statute of limitations for all

actions “for any penalty or forfeiture of any penal statutes.” For

actions falling under either statute, a discovery rule applies.

Section 13-80-108(3), C.R.S. 2017, provides that “[a] cause of action

for fraud, misrepresentation, concealment, or deceit shall be

considered to accrue on the date such fraud, misrepresentation,

concealment, or deceit is discovered or should have been discovered

by the exercise of reasonable diligence.”

¶ 38 The trial court found that “plaintiffs did [not] and could not

have discovered the conduct at issue until January 2014, at the

earliest.” In January 2014, plaintiffs received, for the first time,

information provided by the law firms and National Title in response

to investigative subpoenas regarding the types of title products

defendants provided during foreclosure proceedings. Plaintiffs did

not request or receive any information from First National Title

Residential before filing their complaint in December 2014.

Importantly, the trial court also found that defendants presented no

18 evidence to dispute this date of discovery. Thus, plaintiffs’ action,

filed in December 2014, was filed within one year of plaintiffs’

discovery of defendants’ acts underlying the CFDCPA claims.

¶ 39 Because plaintiffs’ action was timely filed under either the

one-year statute of limitations set forth in section 13-80-103, or the

two-year statute of limitations within section 13-80-102, we need

not decide which catchall provision should have been applied to

plaintiffs’ CFDCPA claims. We conclude the trial court did not err

in concluding that the CFDCPA claims were timely filed, albeit on

different grounds.

III. Foreclosure Commitment Charges

¶ 40 Defendants contend the trial court erred when it concluded

that they violated the CCPA and the CFDCPA by charging 110% of

the schedule of basic rates for foreclosure commitment required by

Fidelity’s rates on file with the DOI. Specifically, defendants argue

that the filed rate doctrine precludes a finding of liability for

charging amounts which they contend were in compliance with

Fidelity’s filed rates. The filed rate doctrine limits judicial review of

rates approved by regulatory agencies. Maxwell v. United Servs.

Auto. Ass’n, 2014 COA 2, ¶ 62.

19 ¶ 41 Plaintiffs argue that the trial court correctly concluded that

the filed rate doctrine does not apply. Plaintiffs contend that

defendants did not charge amounts in compliance with Fidelity’s

filed rates for a foreclosure commitment because it required

payment from the servicers for the amount chargeable for a title

commitment resulting in the issuance of a title insurance policy,

even when a title insurance policy was never issued. We agree with

plaintiffs and the trial court.

A. Standard of Review

¶ 42 We review the district court’s determination of questions of law

under C.R.C.P. 56(h), including the application of the filed rate

doctrine, de novo. Maxwell, ¶ 61.

¶ 43 We also review the interpretation of an agency’s rules and

regulations de novo. See City & Cty. of Denver v. Gutierrez, 2016

COA 77, ¶ 11. “We construe an administrative regulation or rule

using rules of statutory interpretation. We read the provisions of a

regulation together, interpreting the regulation as a whole.”

Schlapp ex rel. Schlapp v. Colo. Dep’t of Health Care Policy & Fin.,

2012 COA 105, ¶ 9. We look first to the regulation’s plain language

and, if it is unambiguous, we need not apply other canons of

20 construction. Rags Over the Ark. River, Inc. v. Colo. Parks & Wildlife

Bd., 2015 COA 11M, ¶ 28.

¶ 44 We review the court’s findings of fact for clear error, and do

not disturb them unless they are unsupported by the record. Jehly

v. Brown, 2014 COA 39, ¶ 8.

B. Law

¶ 45 A party in a civil action may move for determination of a

question of law at any time after the last required pleading, and “[i]f

there is no genuine issue of any material fact necessary for the

determination of the question of law, the court may enter an order

deciding the question.” C.R.C.P. 56(h). This allows the court to

address an issue of law which has a significant impact on how

litigation of a case will proceed, but which is not dispositive of a

claim and does not warrant summary judgment. In re Bd. of Cty.

Comm’rs, 891 P.2d 952, 963 n.14 (Colo. 1995).

¶ 46 “[The filed rate doctrine] precludes a challenge to a regulated

entity’s rates filed with any governmental agency — state or federal

— having regulatory authority over the entity.” Maxwell, ¶ 63.

There are two rationales for the doctrine: first, to prevent insurers

from discriminating in its charges amongst ratepayers, and, second,

21 to recognize the exclusive role of agencies in rate approval by

deferring to their authority and expertise. Id. at ¶¶ 64-65.

C. Analysis

¶ 47 Before trial, defendants filed a motion for a determination as a

matter of law, seeking a ruling that their actions in charging the

servicers 110% of the basic rate for foreclosure commitments and

including that same charge in bid and cure statements complied

with Colorado law. The trial court reframed the question for proper

consideration under C.R.C.P. 56(h) as “[w]hat are the appropriate

rates and charges for a foreclosure commitment under Section I-16

of Fidelity’s Title Insurance Rates and Charges for the State of

Colorado?”

¶ 48 After reviewing Fidelity’s manual, the trial court ruled as

follows:

A title commitment represents the title insurance company’s agreement to insure the property against all liens and encumbrances upon, defects in, and unmarketability of the title to the real property. Fidelity’s Manual provides that ‘a commitment will be issued only as an incident to the issuance of a title policy for which a charge is made.’ A title policy does not issue if a foreclosure sale is not held. Thus, a basic requirement for the

22 issuance of a policy is the completion of a foreclosure sale.

It concluded that the charge of 110% of the schedule of basic rates

applied only to a title commitment which resulted in the ultimate

issuance of a title insurance policy. Otherwise, the language of

section I-16 limited the chargeable amount for a foreclosure

commitment that did not result in the issuance of a title insurance

policy to a cancellation fee of $300 to $750, based upon the amount

of work performed. The trial court drew further support for its

conclusion from section A-6.1 of the manual, which stated, “a

commitment will be issued only as an incident to the issuance of a

title policy for which a charge is made.” (Emphasis added.) The

trial court interpreted this language as confirmation that a

commitment is not a “stand-alone title product.”

¶ 49 Defendants argue that the trial court erred in its interpretation

of Fidelity’s manual. They cite to the DOI regulations in effect

during the years at issue, which provided that it was a per se

unlawful inducement proscribed by section 10-11-108, C.R.S.

2017, to

4. [furnish] a title commitment without charge or at a reduced charge, unless, within a

23 reasonable time after the date of issuance, appropriate title insurance coverage is issued for which the scheduled rates and fees are paid. Any title commitment charge must have a reasonable relation to the cost of production of the commitment and cannot be less than the minimum rate or fee for the type of policy applied for, as set forth in the insurer’s current schedule of rates and fees[;]

....

8. [charge] less than the scheduled rate or fee for a specified title or closing and settlement service, or for a policy of title insurance[;]

[or]

9. [waive, or offer] to waive, all or any part of the title entity’s established rate or fee for services which are not the subject of rates or fees filed with the Commissioner or are required to be maintained on the entity’s schedule of rates or fees.

Div. of Ins. Reg. 3-5-1, § 6(A), 3 Code Colo. Regs. 702-3 (effective

Oct. 1, 2007-Jan. 1, 2010); see also Div. of Ins. Reg. 8-1-3,

§ 5(D)(2), (7)-(8), 3 Code Colo. Regs. 702-8.

¶ 50 Construing the regulations according to their plain language,

we conclude that the regulations merely prohibit a title company

from providing a title commitment for free or for a reduced charge

unless title insurance coverage is issued within a reasonable time

for which the scheduled rate is charged. This language further

24 supports the trial court’s interpretation that a title commitment

cannot be sold as a stand-alone product. Either a title commitment

can be ordered that results in a title insurance policy, or a title

commitment can be canceled. Neither the regulations nor Fidelity’s

manual provided for a third option, in which a title commitment

that did not result in the issuance of a title policy would be sold for

110% of the basic rate schedule, or any other amount.

¶ 51 Defendants misperceive the basis of plaintiffs’ claims and the

trial court’s ruling, which does not implicate the filed rate doctrine.

¶ 52 Plaintiffs did not challenge the reasonableness or propriety of

the rates set forth in Fidelity’s manual, nor did the trial court

conclude that defendants were liable for charging rates for services

in compliance with Fidelity’s rates filed with the DOI. Rather, the

trial court concluded that defendants charged servicers, and, thus,

homeowners seeking to cure defaults, rates for a service they did

not, in most cases, ultimately provide.

¶ 53 Defendants represented that they actually incurred the full

cost of a title insurance premium, at 110% of the basic rates

schedule, when they invoiced servicers for that amount and listed

that amount on cure statements and collected payments at that

25 rate. However, in most cases they only ordered a title commitment,

for which a title insurance policy would never be issued. The trial

court further concluded that defendants knew that in most

nonjudicial foreclosures, the foreclosure would be withdrawn prior

to sale, and therefore a title insurance policy would never be issued.

¶ 54 The trial court’s findings were supported by evidence provided

by both sides at trial.

¶ 55 Hopp testified that he and his law firms only charged the full

amount for a title insurance policy and never a cancellation fee in

advance for a foreclosure commitment. He further testified that

even when a borrower cured a default, the law firms had no

responsibility to refund any amount received for a title insurance

policy, even though no policy would ever issue. Absent explicit

direction from a servicer to cancel a title commitment, he and his

firms did not do so. This was true even when Hopp and the law

firms were aware that a foreclosure had been cured or withdrawn,

because they were given instructions from the servicer to withdraw

the foreclosure filed with the public trustee.

¶ 56 Hopp’s interpretation of his role and that of his law firms in

the cancellation process was at odds with the other evidence

26 presented at trial. Plaintiffs’ expert on title insurance testified that,

while a title agent might invoice the full amount of a title policy

upon ordering a title commitment, if the client paid that full amount

in advance, the title agent was required to deposit the funds into a

trust or escrow account because the funds were unearned

premiums until a title policy was issued. While he acknowledged

that cancellation of a title commitment was an affirmative act that a

client must perform, if the requirements for issuing a title policy

had not been met during the twenty-four month hold-open period,

the agent was responsible for determining the status of the

foreclosure through searching public records or communication

with his or her client. If conditions for issuing the policy had not

been met, the agent was required to refund the premium, less the

cancellation fee to the client.

¶ 57 The vice president for title agency Fidelity National Title

Company (a distinct entity from Fidelity, the underwriter) testified

that when a foreclosure commitment was ordered, it was the

company’s practice to charge “a fee up front based on the amount of

work that’s gone into that product and with the anticipation that it

has a high probability of cancelling before it finishes.” This

27 amount, in most cases, was $300. Fidelity National Title Company

did not charge 110% of the basic rates schedule in anticipation of

issuing a title insurance policy, and only did so if a deed of trust

was actually foreclosed and a policy was issued.

¶ 58 We also note that, during oral argument, while defendants’

counsel argued that the fee was earned at the inception of a

foreclosure case, he also conceded that if a mortgage servicer client

had specifically requested the cancellation of the title commitment,

the client would have been entitled to a refund of the fee charged

minus the applicable cancellation fee. These contentions are

inconsistent. If the title premium charge was fully earned at the

time it was charged, a request for its cancellation would not have

entitled the client to a full refund of the charge, minus the

contractually established cancellation fee.

¶ 59 Because the evidence presented at trial supported the trial

court’s finding that defendants misrepresented the premium

charges as actually incurred costs when they had only ordered title

commitments, the trial court did not err.

28 IV. Knowingly/Bad Faith

¶ 60 Defendants contend the trial court erred when it concluded

that they knowingly engaged in a deceptive trade practice. We

¶ 61 As stated in Part II.A, supra, we review the court’s findings of

fact for clear error, and do not disturb them unless they are

unsupported by the record. Jehly, ¶ 8.

¶ 62 To establish a violation of the CCPA, a plaintiff must show the

defendant knowingly engaged in a deceptive trade practice. Crowe

v. Tull, 126 P.3d 196, 204 (Colo. 2006). “[T]he element of intent is a

critical distinction between actionable CCPA claims and those

sounding merely in negligence or contract. Gen. Steel Domestic

Sales, LLC v. Hogan & Hartson, LLP, 230 P.3d 1275, 1282 (Colo.

App. 2010). Misrepresentation caused by negligence or an honest

mistake is a defense to a CCPA claim. Crowe, 126 P.3d at 204.

¶ 63 While “knowingly” is not expressly defined within the CCPA,

the supreme court has addressed the intent requirement for a CCPA

claim. See Rhino Linings USA, Inc. v. Rocky Mountain Rhino Lining,

29 Inc., 62 P.3d 142, 147 (Colo. 2003). It defined a misrepresentation

as a false or misleading statement made “either with knowledge of

its untruth, or recklessly and willfully made without regard to its

consequences, and with an intent to mislead and deceive [another].”

Id. (quoting Parks v. Bucy, 72 Colo. 414, 418, 211 P. 638, 639

(1922)).

¶ 64 In determining civil penalties for a violation of the CCPA, a

court should also consider the good or bad faith of the defendant.

People v. Wunder, 2016 COA 46, ¶ 49.

¶ 65 Here, the trial court’s finding that defendants acted knowingly

was supported by the following evidence in the record:

 The law firms levied the 110% charge for a future policy

that Hopp acknowledged more than likely would never be

issued.

 The law firms obtained reimbursement of full title policy

premiums, even though Hopp acknowledged that a policy

usually was not issued.

30  The law firms and the affiliated title companies worked

together to overbill and fail to cancel foreclosure

commitments for withdrawn foreclosures.

 The law firms and the title companies never cancelled

foreclosure commitments, even when they knew a

foreclosure had been withdrawn.

¶ 66 This evidence belies defendants’ contention that they acted in

good faith reliance on their reasonable interpretation that they were

charging in accordance with Fidelity’s filed rates.

V. Duplicative Civil Penalties

¶ 67 Defendants contend the trial court erred in imposing civil

penalties under the CCPA and the CFDCPA for the same underlying

acts. The complaint gave defendants sufficient notice that plaintiffs

sought penalties under both statutes based upon the same

conduct. Yet, defendants did not raise this argument before the

trial court before it entered its order imposing penalties under both

statutes, nor did it raise this argument post trial in any manner

until it filed its brief on appeal. We do not consider issues raised

for the first time on appeal. See Estate of Stevenson v. Hollywood

31 Bar & Cafe, Inc., 832 P.2d 718, 721 n.5 (Colo. 1992). Accordingly,

we decline to consider defendants’ argument.

VI. Exhibit 103

¶ 68 Defendants argue the trial court abused its discretion when it

admitted plaintiffs’ Exhibit 103 and relied on it in assessing civil

penalties against defendants. We reject this contention.

¶ 69 We review the trial court’s evidentiary rulings for an abuse of

discretion. See, e.g., Sos v. Roaring Fork Transp. Auth., 2017 COA

142, ¶ 48. “A district court abuses its discretion where its decision

is manifestly arbitrary, unreasonable, or unfair, or contrary to law.”

Id.

B. Facts

¶ 70 Exhibit 103 is a 1114-page spreadsheet compiling electronic

invoicing data submitted by Hopp’s law firms through a billing

software to the servicers from 2008 until the time of trial.

BlackKnight Financial Services, formerly LPS, prepared the

spreadsheet. Hopp explained that LPS is a software provider, or

“data aggregator” that served as a web-based interface between law

firms and servicers for billing and payment. Hopp’s wife testified

32 that she used the LPS system to bill for the law firms. After logging

into the system, she entered data such as the servicer or client who

was being invoiced, file information for the borrower, and selected

the costs being billed using drop-down menus.

¶ 71 The director of software development at BlackKnight testified

about the creation of Exhibit 103. He explained that vendors,

including the law firms, submitted an invoice into a mainframe

application, which sent the data to its invoicing system,

LoanSphere, for mortgage servicers to access. He testified that

Exhibit 103 was a spreadsheet created from the production data

from LoanSphere showing data submitted by the law firms. The

spreadsheet showed the name of the vendor, or law firm; the loan

numbers for the invoices; the invoice number assigned when the

data was entered into the system; the department description; the

date the invoice was submitted into LoanSphere; the category and

subcategory of the line item on the invoice; the quantity; and the

item price tied to the line item. It also had columns showing the

paid amount, status of payment, and date that a check was created

by the servicer. While certain fields such as the dates the invoices

were entered into the system were autopopulated, a law firm’s

33 representative entered the item price and category and subcategory

for each item. The trial court admitted the spreadsheet as a

business record over defendants’ objection. It ruled that the exhibit

was alternatively admissible as a summary under CRE 1006. In its

judgment, the trial court noted that plaintiffs’ investigator used

spreadsheets provided by LPS, including Exhibit 103, to determine

what the law firms billed servicers for foreclosure commitments in

2291 transactions which did not match a loan number where a

policy was ultimately provided.

¶ 72 Addressing Exhibit 103, the court also indicated that

“[b]ecause of the lack of verification of the entries in Plaintiffs’

Exhibit 103, the Court places little weight on the exhibit.” The

court clarified in a post-trial order that its concern with the exhibit

related to entries in the spreadsheet designating a “check

confirmed” status regarding whether an invoice had been paid by a

servicer to the law firms. The trial court reiterated that it

“comfortably relied on this exhibit in determining 2,291

representations and calculating the penalties.”

34 C. Business Record Exception to Hearsay

¶ 73 Hearsay is an out-of-court statement made by someone other

than the declarant while testifying at trial, which is offered to prove

the truth of the matter asserted. CRE 801(c). Hearsay is

inadmissible unless it falls within a statutory exception or an

enumerated exception in CRE 803 or 804. CRE 802.

¶ 74 CRE 803(6) allows evidence to be admitted under the business

record exception to the hearsay rule if the following conditions are

met:

(1) the document must have been made “at or near” the time of the matters recorded in it; (2) the document must have been prepared by, or from information transmitted by, a person “with knowledge” of the matters recorded; (3) the person or persons who prepared the document must have done so as part of a “regularly conducted business activity”; (4) it must have been the “regular practice” of that business activity to make such documents; and (5) the document must have been retained and kept “in the course of” that, or some other, “regularly conducted business activity.”

Schmutz v. Bolles, 800 P.2d 1307, 1312 (Colo. 1990) (quoting White

Indus. v. Cessna Aircraft Co., 611 F. Supp. 1049, 1059 (W.D. Mo.

1985)). If the record is a compilation of data, and the original data

was prepared in compliance with the above conditions, the fact that

35 the data was compiled into a spreadsheet or document for litigation

does not affect its admissibility. People v. Ortega, 2016 COA 148,

¶ 15 (“[I]n the context of electronically-stored data, the business

record is the datum itself, not the format in which it is printed out

for trial or other purposes.” (quoting United States v. Keck, 643 F.3d

789, 797 (10th Cir. 2011))); People v. Flores-Lozano, 2016 COA 149,

¶ 15; Florez-Lozano, ¶ 25 (Bernard, J., specially concurring).

D. Analysis

¶ 75 The trial court correctly concluded that the foundational

requirements for admitting the spreadsheet as a business record

had been met. The BlackKnight representative testified that the

entries into the invoicing system were made at the time a

representative of the law firms entered it into the mainframe

application. Hopp and his wife both confirmed this process in their

testimony. The data entered was within the knowledge of the law

firms, and kept in the course of their regularly conducted business,

which was representing loan servicers in foreclosure cases. It was

the law firms’ regular practice to create a record of invoiced items

through LPS and to retain those records.

36 ¶ 76 Thus, the trial court did not abuse its discretion when it

admitted Exhibit 103 as a business record under CRE 803(6).

Because we conclude the trial court did not abuse its discretion in

admitting the exhibit on that basis, we need not consider whether it

would have been properly admitted as a summary under CRE 1006.

VII. Exhibit 1093

¶ 77 Plaintiffs contend on cross-appeal that the trial court abused

its discretion when it admitted defendants’ Exhibit 1093 to rebut

plaintiffs’ Exhibit 104. We disagree.

A. Background

¶ 78 At times, servicers directed the law firms to order foreclosure

commitments from LSI Default Title and Closing, also known as LSI

Title Agency, a division of LPS, instead of from one of Hopp’s

affiliated title companies. During discovery, defendants produced to

plaintiffs an invoicing statement from LSI (Exhibit 104), dated

September 4, 2015. Exhibit 104 showed that, on 1186 foreclosure

files, in which Hopp and the law firms collected a full title policy

premium from servicers, they paid nothing — neither a policy

premium nor a cancellation fee — to LSI for title commitments

ordered. Exhibit 104 reflected that LSI appeared to charge

37 defendants only $350 for title commitments ordered, which was

representative of a cancellation fee.

¶ 79 Plaintiffs amended their complaint to add claims against

defendants for violating the CCPA and CFDCPA through its conduct

with regard to the LSI transactions. In its written notice of claim

filed with the court adding the claim, plaintiffs alleged that the

invoices from title commitments ordered from LSI included the

eventual price for issuance of a title policy. At trial, plaintiffs

argued, consistently with the data in Exhibit 104, that LSI expected

to be paid only the cancellation fee amount on files where no title

insurance policy was issued, and that Hopp and the law firms had

paid LSI nothing.

¶ 80 The controller of accounting for the successor company to LSI

testified that Exhibit 104 showed the charges due as of September

4, 2015, the date the exhibit was printed, which incorporated any

adjustments made before that date. He testified that at some point

in “roughly mid 2015,” his team was asked by LSI’s internal

operations department to amend numerous charges to $350, which

appeared to be inconsistent with the invoices provided to the law

firms.

38 ¶ 81 Defendants introduced an email from an LSI representative to

Hopp’s wife, which included an attached spreadsheet similar to

Exhibit 104, but dated December 3, 2014. This December 2014

spreadsheet, Exhibit 1093, showed charges for full policy premiums

rather than outstanding charges of $350, which were representative

of cancellation fees. Plaintiffs objected to the admission of Exhibit

1093. Their counsel argued, “One, I don’t think there’s a sufficient

foundation that [the controller] has knowledge of this document.

Two, we’ve never seen this before. This makes two documents in a

row that I’ve received for the first time at the witness table. It

makes it very difficult to review them.” Defendants urged the trial

court to admit the exhibit under CRE 613 for impeachment. The

trial court admitted the exhibit without explaining its decision.

¶ 82 After considering both exhibits, and the “unusual and

unexplained adjustments on Plaintiffs’ Exhibit 104,” which were

demonstrated through the controller’s testimony and discrepancies

between Exhibit 104 and Exhibit 1093, the trial court declined to

place any weight on Exhibit 104 in its final order, and concluded

that plaintiffs had failed to prove their claim based on the LSI

transactions.

39 B. Disclosure

¶ 83 Plaintiffs argue that C.R.C.P. 26 required defendants to

disclose Exhibit 1093. We disagree.

¶ 84 C.R.C.P. 26, as it appeared during the years at issue, required

parties, as part of their mandatory disclosures, to identify and

provide documents “relevant to disputed facts alleged with

particularity in the pleadings.” C.R.C.P. 26(a)(1)(B) (2014). Under

the rule then in effect, a party was obligated to supplement its

disclosures made if it learned that the information previously

disclosed was incomplete or incorrect in some material respect and

the additional information had not otherwise been made known to

the other parties during discovery. C.R.C.P. 26(e) (2014).

¶ 85 We review a trial court’s ruling on a discovery issue and

decision whether to impose any sanction for an abuse of discretion.

See, e.g., Pinkstaff v. Black & Decker (U.S.) Inc., 211 P.3d 698, 702

(Colo. 2009). “A trial court abuses its discretion if its decision is

manifestly arbitrary, unreasonable, or unfair.” Id.

¶ 86 The LSI claim was not part of plaintiffs’ original complaint.

Rather, it was added after disclosure of Exhibit 104 in the discovery

process, after discovery had closed and mere weeks before the trial

40 began. The written notice of claim alleged that LSI expected to be

paid a cancellation fee of $350 at the outset of billing for a

foreclosure commitment, not full title insurance policy premiums.

¶ 87 Even if we assume that defendants should have identified

Exhibit 1093 as a required supplement to its previous disclosures,

upon plaintiffs’ addition of the LSI claim to their complaint, the

decision of what, if any, sanction to impose on defendants for their

failure to do so was well within the trial court’s discretion. If the

trial court decides that a sanction is warranted for a discovery

violation, it should “impose the least severe sanction that will

ensure there is full compliance with a court’s discovery orders and

is commensurate with the prejudice caused to the opposing party.”

¶ 88 A trial court does not err in declining to impose sanctions for a

discovery violation if the failure to disclose was harmless. Trattler v.

Citron, 182 P.3d 674, 679-80 (Colo. 2008). In evaluating

harmlessness,

the inquiry is not whether the new evidence is potentially harmful to the opposing side’s case. Instead, the question is whether the failure to disclose the evidence in a timely fashion will prejudice the opposing party by denying that party an adequate opportunity to defend against the evidence.

41 Todd v. Bear Valley Vill. Apartments, 980 P.2d 973, 979 (Colo.

1999).

¶ 89 Here, given the late addition of the LSI claim, and the

parameters of the claim set forth in the plaintiffs’ written notice, the

trial court did not abuse its discretion in declining to exclude

Exhibit 1093 as a sanction for defendants’ failure to supplement

their mandatory disclosures at a late point in litigation. While

Exhibit 1093 was arguably related to the claim and the data set

forth in Exhibit 104, plaintiffs only argue in a conclusory fashion

that failure to disclose Exhibit 1093 constituted a tactic of trial by

surprise.

¶ 90 Plaintiffs argue that, with proper disclosure of the exhibit, they

could have responded to and explained the evidence with an

appropriate witness from LSI. However, the LSI controller testified

at trial that his department had received and made changes to

numerous charges within the spreadsheet in the middle of 2015.

Plaintiffs had the opportunity to cross-examine the controller and

did so at trial. Accordingly, the trial court did not abuse its

discretion in declining to exclude Exhibit 1093 because defendants

did not disclose it prior to trial.

42 C. Trial Management Order

¶ 91 Plaintiffs further argue that C.R.C.P. 16(f)(5) precluded the

admission of Exhibit 1093 because it was not included in the trial

management order and the trial court failed to make necessary

findings to support its admission. We disagree for two reasons.

¶ 92 First, plaintiffs failed to preserve this argument in the trial

court and “[a]rguments never presented to, considered or ruled

upon by a trial court may not be raised for the first time on appeal.”

Estate of Stevenson, 832 P.2d at 721 n.5.

¶ 93 Second, while plaintiffs objected to the admission of Exhibit

1093 on the general basis that it was not disclosed to them before

trial, they did not argue that it conflicted with the trial management

order. In any event, plaintiffs cite to no authority, and we have

found none, that requires the trial court to sua sponte make

findings pursuant to C.R.C.P. 16 whenever it permits a deviation

from the trial management order. Accordingly, the trial court did

not abuse its discretion in failing to sua sponte make findings

under C.R.C.P. 16(f)(5) because plaintiffs’ objection on this

particular ground was not made known to the court.

43 D. Foundation

¶ 94 Plaintiffs argue that Exhibit 1093 lacked a sufficient

foundation because the controller did not have personal knowledge

necessary to authenticate it. We disagree.

¶ 95 Authentication is satisfied by “evidence sufficient to support a

finding that the matter in question is what its proponent claims.”

CRE 901(a). One way in which an exhibit may be authenticated is

through its “[a]ppearance, contents, substance, internal patterns, or

other distinctive characteristics, taken in conjunction with

circumstances.” CRE 901(b)(4). A division of this court has held

that emails may be authenticated through either testimony

explaining that they are what they purport to be or through

consideration of their distinctive characteristics shown by an

examination of their content and substance. See People v. Bernard,

2013 COA 79, ¶ 10.

¶ 96 Here, the controller testified that a member of the collections

team at his company sent the email to Lori Hopp; he recognized the

sender’s name and email address as it appeared on the email; he

recognized the sender’s email signature, which included the

company’s logo; and the attachment to the email was consistent

44 with collection statements the company sent out. Because the

controller could authenticate the email through its distinctive

characteristics, he was not required to have personal knowledge of

the document itself. Thus, he laid a sufficient foundation for the

admission of Exhibit 1093.

E. Impeachment Versus Rebuttal

¶ 97 To the extent that plaintiffs argue that Exhibit 1093 was

improperly considered for its substance, rather than just

impeachment, we disagree. While defendants offered Exhibit 1093

under CRE 613, the trial court’s ruling did not indicate that it

admitted the exhibit on that basis. The terms impeachment and

rebuttal are sometimes used interchangeably; impeachment

generally refers to proof a witness made statements inconsistent

with his or her present testimony. People v. Trujillo, 49 P.3d 316,

320 (Colo. 2002). Rebuttal, however, is contrary evidence — “that

which is presented to contradict or refute the opposing party’s

case.” Id. at 321. Rebuttal evidence is substantive in nature and

may support a party’s case-in-chief. Id. at 320. Here, Exhibit 1093

was admitted to contradict the data presented in Exhibit 104.

Accordingly, it was admitted as rebuttal evidence, and the trial

45 court did not abuse its discretion when it considered Exhibit 1093

for its substance, rather than limiting its consideration to

impeachment.

VIII. Appellate Attorney Fees

¶ 98 Both parties request an award of their attorney fees and costs

incurred in this appeal. We agree that, under section 6-1-113(4),

C.R.S. 2017, and section 5-16-133, C.R.S. 2017, plaintiffs are

entitled to an award of their reasonable appellate attorney fees. See

Payan v. Nash Finch Co., 2012 COA 135M, ¶ 63 (extending CCPA

provision awarding attorney fees to party successfully defending

trial court’s judgment on appeal). The amount of appellate attorney

fees awarded should not include any fees incurred in the pursuit of

plaintiffs’ cross-appeal, as they were unsuccessful on that issue in

the district court and on appeal. We exercise our discretion under

C.A.R. 39.1 to remand this issue to the trial court to determine the

total amount of plaintiffs’ reasonable fees and costs incurred on

appeal, with the limitations specified, and to award those amounts.

¶ 99 Defendants’ request for appellate attorney fees is denied.

46 IX. Conclusion

¶ 100 We affirm the district court’s judgment and remand the case

with directions to determine an award of plaintiffs’ reasonable

appellate attorney fees, less any fees incurred in the pursuit of

plaintiffs’ unsuccessful claim on cross-appeal.

JUDGE TAUBMAN and JUDGE HARRIS concur.