v. Center for Excellence

2021 COA 117

• Court: Colorado Court of Appeals
• Decided: August 31, 2021
• Docket: 20CA1692, Colorado
• 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 August 26, 2021

2021COA117

No. 20CA1692, Colorado v. Center for Excellence — Consumers — Colorado Consumer Protection Act — Unfair or Deceptive Trade Practices — Enforcement — Significant Public Impact

A division of the court of appeals considers whether a 2019

amendment to the Consumer Protection Act, section 6-1-103,

C.R.S. 2020 — which provides that an action brought by the

Attorney General “does not require proof that a deceptive trade

practice has a significant public impact” — applies retroactively.

The division concludes that the 2019 amendment constituted a

change in the law and the change does not apply retroactively. On

this basis, the division further concludes that each of the Consumer

Protection Act claims in this case must be retried because the trial

court erred when it decided that the Attorney General did not have

to prove that defendants’ conduct significantly impacted the public. COLORADO COURT OF APPEALS 2021COA117

Court of Appeals No. 20CA1692 City and County of Denver District Court No. 14CV34530 Honorable Ross B.H. Buchanan, 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 College America; 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.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS

Division A Opinion by CHIEF JUDGE BERNARD Welling and Tow, JJ., concur

Announced August 26, 2021

Philip J. Weiser, Attorney General, Eric R. Olson, Solicitor General, Abigail M. Hinchcliff, First Assistant Attorney General, Olivia D. Webster, Senior Assistant Attorney General II, Mark T. Bailey, Senior Assistant Attorney General II, Hanah M. Harris, Assistant Attorney General, Denver, Colorado, for Plaintiffs- Appellees and Cross-Appellants Connelly Law LLC, Sean Connelly, Denver, Colorado, for Defendants- Appellants and Cross-Appellees Center for Excellence in Higher Education, Inc., CollegeAmerica Denver, Inc., CollegeAmerica Arizona, Inc., Stevens- Henager College, Inc., and CollegeAmerica Services, Inc.

L S Pozner, PLLC, Larry S. Pozner, Denver, Colorado; Gombos Leyton PC, Steven M. Gombos, Jacob C. Shorter, Fairfax, Virginia, for Defendants- Appellants and Cross-Appellees Carl Barney, The Carl Barney Living Trust, and Eric Juhlin ¶1 Certain advertisements are seemingly ubiquitous, appearing

on the television, on the radio, and in print. As is pertinent to this

case, one frequently aired television advertisement began, “You’ve

been lied to. The truth is, the right college degree can lead to a

higher paying job. And with the right degree from CollegeAmerica

you could get a better job.”

¶2 According to Colorado’s Attorney General, some ten thousand

Colorado consumers responded to advertisements such as the one

quoted above and enrolled in CollegeAmerica. But those

consumers, the Attorney General alleged, were sold a bill of goods.

Instead of achieving the career advancement and increased income

that they were led to expect, they entered degree programs that did

not prepare them for jobs in their fields of study, and they were left

saddled with debt that they had no hope of repaying. The Attorney

General added that CollegeAmerica knew about these deficiencies in

its programs, but it did not care; it was making money.

¶3 To hear CollegeAmerica tell it, it was filling a critical gap in the

market, offering nontraditional, often disadvantaged students the

opportunity to earn marketable degrees in high-demand fields in

1 less time than local community colleges could, and with a better

chance of graduating, too.

¶4 In December 2014, the Attorney General and the

Administrator of the Uniform Consumer Credit Code sued the

corporate entities and the individuals that made up

CollegeAmerica’s Colorado operation. (CollegeAmerica also has a

presence in other states.) We shall refer to the plaintiffs collectively

as “the Attorney General.” The named corporate defendants were

the Center for Excellence in Higher Education, Inc., and its

subsidiaries; the named individual defendants were Carl Barney,

Eric Juhlin, and the Carl Barney Living Trust. We shall refer to the

defendants collectively as “CollegeAmerica” unless we need to

identify them individually. We note that, although the corporate

defendants and the individual defendants were represented by the

same counsel during the trial, they are represented by separate

counsel on appeal.

¶5 The complaint alleged that CollegeAmerica’s efforts to recruit

consumers and enroll them as CollegeAmerica students violated the

Colorado Consumer Protection Act, or the CCPA, which we will

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

Credit Code, or the UCCC, which we will call “the Credit Code.”

¶6 In particular, the Attorney General alleged that CollegeAmerica

(1) “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); (3) “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); (4) engaged in “bait and switch” advertising,

in violation of section 6-1-105(1)(n)(I), (II); (5) failed to disclose

material information with the intent to induce consumers to enroll

as students, in violation of section 6-1-105(1)(u); (6) “failed to obtain

the necessary authorization to offer certain degree programs,” in

violation of section 6-1-105(1)(z); and (7) engaged in fraudulent or

3 unconscionable conduct in inducing consumers to enter into loans,

in violation of section 5-6-112, C.R.S. 2020.

¶7 The trial court partially dismissed the “bait and switch” claim.

The court held a four-week bench trial on the remaining claims

beginning in October 2017.

¶8 The court issued its judgment, which included findings of fact

and conclusions of law, about two years and nine months later.

Much of the court’s order was copied verbatim from the Attorney

General’s proposed order, and one of the reasons we know this is

because the same typographical errors that appear in the trial

court’s order are also found in the Attorney General’s proposed

order.

¶9 The court decided that all the named defendants were jointly

and severally liable for violating the Consumer Act, and it ordered

them to pay $3 million in civil penalties; it issued detailed

injunctions against CollegeAmerica under both the Consumer Act

and the Credit Code; it denied the Attorney General’s request that

CollegeAmerica pay back every dollar that its Colorado consumers

had ever paid on tuition and for fees; and it determined that

4 CollegeAmerica’s loan program, known as EduPlan, was not

unconscionable.

¶ 10 CollegeAmerica and the Attorney General appeal the trial

court’s judgment. CollegeAmerica asserts that the judgment went

too far; the Attorney General counters that the judgment did not go

far enough.

¶ 11 Specifically, the corporate defendants contend that the trial

court erred when it (1) applied a 2019 amendment to the Consumer

Act — which did away with the Attorney General’s burden of

proving “significant public impact” — retroactively; (2) deprived

them of their right to a jury trial; (3) allowed the Attorney General to

pursue what amounted to 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 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 so much of

the Attorney General’s proposed order.

¶ 12 The individual defendants, meanwhile, assert that (1) the

court erred when it did not require the Attorney General to prove

5 significant public impact under the Consumer Act; (2) the court

erred when it denied them the right to a jury trial; (3) the evidence

presented at trial did not support the imposition of personal liability

against either Mr. Barney or Mr. Juhlin; and (4) the court

erroneously imposed liability against the trust under an alter ego

theory.

¶ 13 The Attorney General replies that the court only committed

one error: it should have found, as a matter of law, that

CollegeAmerica’s entire EduPlan loan program was unconscionable.

¶ 14 As we shall explain, we reverse the trial court’s judgment, in

part, and we remand the case for a new trial. We conclude that

each of the Consumer Act claims must be retried because the trial

court erred when it decided that the Attorney General did not have

to prove that CollegeAmerica’s conduct significantly impacted the

public. Based on this conclusion, we only address the remaining

contentions that (1) must be resolved for the purposes of the new

trial on remand; or (2) would obviate the need for a retrial.

6 I. The Trial Court Erred When It Decided That the Attorney General Did Not Need to Prove Significant Public Impact

A. Background

¶ 15 Before trial, CollegeAmerica asked the court to order summary

judgment on two issues related to public impact. First, it argued

that its programs only impacted “a handful” of students, not the

public at large. Second, it argued that its mailed advertisements

containing salary information and statements about the loan

program did not affect the public because its tracking data showed

that “no consumers who responded to any of the [s]tarting [s]alary

[m]ailers enrolled in any of the programs for which starting salary

information was included; and only six consumers who responded

to any of the EduPlan [m]ailers enrolled in any program.”

¶ 16 The court disagreed with CollegeAmerica on both issues and

the larger issue of whether there was any need to prove significant

public impact at all, explaining that these requests for summary

judgment presented “what appear[ed] to be a matter of first

impression in Colorado, which has not been squarely decided by

any appellate court.” The court explained that the “matter of first

impression” was whether the Attorney General was required to

7 “demonstrate a ‘significant public impact’ arising from

[CollegeAmerica’s] alleged deceptive trade practices in order to prove

a violation of the [Consumer Act].” The court then ruled that proof

of a significant public impact was “not applicable to this

action . . . .”

¶ 17 This issue became more complicated in late March 2019 —

after the trial, but before the court issued its judgment — when

House Bill 19-1289 was introduced. As originally drafted, section 1

of this bill would have amended section 6-1-105 by adding a new

subsection (4). The new subsection read: “Standing to bring an

action under this article 1 does not require proof that a deceptive

trade practice has a significant public impact.” H.B. 19-1289, 72d

Gen. Assemb., 1st Reg. Sess. (Colo. 2019)(as introduced in House,

Mar. 29, 2019), https://perma.cc/8Y73-8D4E.

¶ 18 In early April 2019, a division of this court announced State ex

rel. Weiser v. Castle Law Group, LLC, 2019 COA 49, ¶ 105. The

division in Castle held that the Attorney General was required to

prove public impact in cases brought under the Consumer Act.

¶ 19 Then, at the end of April, the legislature amended the bill.

Instead of amending the statute to add a new subsection (4) to

8 section 6-1-105 and eliminating significant public impact as a

standing requirement for anyone to bring a Consumer Act claim, a

new section 1 of the bill added the following language as the last

sentence of section 6-1-103, C.R.S. 2020: “An action under this

article 1 brought by the attorney general or a district attorney does

not require proof that a deceptive trade practice has a significant

public impact.” H.B. 19-1289, 72d Gen. Assemb., 1st Reg. Sess.

(Colo. 2019)(as revised, April 30, 2019)(emphasis added),

https://perma.cc/AP2J-WA6Z. The General Assembly eventually

passed an amended bill containing this language, and the Governor

signed the amended bill into law in late May 2019.

¶ 20 So it is no surprise that, after the Governor signed the bill, the

Attorney General filed a motion in this case asking the trial court to

hold, as a matter of law, that, because of the bill, “Castle [was] . . .

no longer controlling, and the . . . [trial court should] stand by its

ruling that the [Attorney General was] not required to prove

significant public impact.”

¶ 21 The trial court addressed this motion in its final judgment. It

decided that the bill “preserved the significant public impact

requirement in a private action brought under the [Consumer Act]

9 . . . but clarified that the requirement did not apply to an action

brought by the Attorney General or a district attorney.”

B. History of the Public Impact Requirement

¶ 22 Before our General Assembly passed the bill in 2019, the

Consumer Act did not include the phrase “significant public

impact.” Rather, the phrase originated in case law.

¶ 23 In Hall v. Walter, 969 P.2d 224, 233-35 (Colo. 1998), our

supreme court, relying on Hangman Ridge Training Stables, Inc. v.

Safeco Title Insurance Co., 719 P.2d 531, 535 (Wash. 1986), set

forth five elements that had to be proven in a “private cause of

action” to prevail on a Consumer Act claim:

(1) the defendant engaged in an unfair or deceptive trade

practice;

(2) the challenged practice occurred in the course of the

defendant’s business, vocation, or occupation;

(3) it “significantly impact[s] the public as actual or potential

consumers of the defendant’s goods, services, or property,”

Hall, 969 P.2d at 234;

(4) the plaintiff suffered injury in fact to a legally protected

interest; and

10 (5) the challenged practice caused the plaintiff’s injury.

¶ 24 Looking at the public impact requirement specifically, the

court wrote that previous Colorado cases had “recognized” that the

Consumer Act (1) was “clearly enacted to control various deceptive

trade practices in dealing with the public.” Id. (quoting People ex rel.

Dunbar v. Gym of Am., Inc., 177 Colo. 97, 107, 493 P.2d 660, 665

(1972)); and (2) “regulates practices which ‘because of their nature,

may prove injurious, offensive, or dangerous to the public.’” Id.

(quoting People ex rel. Dunbar, 177 Colo. at 107, 493 P.2d at 665).

Because of this strong emphasis, to fall under the Consumer Act’s

coverage, a “challenged practice must significantly impact the

public as actual or potential consumers of the defendant’s goods,

services, or property.” Id.

¶ 25 Although Hall involved a private cause of action, the supreme

court then explained how these elements applied to a case brought

by the Attorney General.

¶ 26 The court began by recognizing, as we have above, that the

General Assembly’s purpose in enacting the Consumer Act was to

“prevent[] deceptive trade practices that ‘may prove injurious,

offensive, or dangerous to the public’” and that the “first three

11 elements [listed in section 6-1-112] address this purpose.” Id. at

236 (quoting People ex rel. Dunbar, 177 Colo. at 111, 493 P.2d at

667). But the court added that “the fourth and fifth elements” —

that the plaintiff suffered an injury in fact and that the defendant’s

conduct caused it — “address whether the impact” of a defendant’s

“actions is such that the . . . plaintiff . . . has a cause of action

under the statute.” Id. In other words, it was the fourth and fifth

elements that “distinguish a private [Consumer Act case] from . . .

an attorney general’s action for civil penalties.” Id. Indeed, “the

latter” — an Attorney General’s action — “requires no showing of

either actual injury or causation.” Id. The takeaway from Hall is

clear: although the Attorney General does not need to prove the

fourth or the fifth element, the Attorney General must prove the first

three elements, which include a significant public impact.

¶ 27 Over twenty years later, the division announced Castle. (We

note that our supreme court has not revisited this issue since Hall.)

Castle involved an appeal of a Consumer Act judgment in which the

defendants contended that the Attorney General had not met its

burden to prove significant public impact. The Attorney General

countered that the State “did not need to prove a significant public

12 impact in a civil enforcement action.” Castle, ¶ 105. The division

rejected the Attorney General’s contention for three reasons.

¶ 28 First, the division decided that, “although the supreme court

did not say so directly” in Hall, it implied that the Attorney General

must prove the first three elements under section 6-1-112, which

included proof of a significant public impact. Id. at ¶ 108. And, to

the extent the operative language in Hall may have been dicta, the

division found it to be persuasive. Id.

¶ 29 Then, the division held that requiring the Attorney General to

prove public impact aligned with the Consumer Act’s legislative

purpose of protecting the public interest. Id. at ¶ 109; see People ex

rel. Dunbar, 177 Colo. at 112, 493 P.2d at 667 (The Consumer Act’s

purpose is to regulate practices that “because of their nature, may

prove injurious, offensive, or dangerous to the public.”).

¶ 30 Last, the division observed, as did our supreme court in Hall,

that Colorado courts “have heavily relied on Washington state law

in interpreting our own consumer protection law, and that

jurisdiction requires [an] attorney general to prove the first three

elements in a government enforcement action,” including proof of

public impact. Id. at ¶ 110 (citation omitted); see Crowe v. Tull, 126

13 P.3d 196, 203 (Colo. 2006)(“We have previously looked to decisions

of the Supreme Court of Washington for guidance in interpreting”

the Consumer Act.).

¶ 31 Even though Castle was announced before the trial court

entered its judgment in this case, the court declined to follow it.

Instead, the court applied the newly amended version of section

6-1-103 from the bill, which was enacted after Castle was

announced and which the court described as a clarification of the

law “for the purpose of making plain what the legislation had been

all along.”

¶ 32 But was the bill truly a clarification of what the law “had been

all along,” or did it, in fact, change the law? The answer to this

question is critical to the outcome of this appeal because whether

the General Assembly clarified the law or changed it leads to

different results.

• If, on the one hand, the General Assembly clarified the

law, then we would conclude that the Attorney General

was not required to prove that CollegeAmerica’s conduct

had a significant public impact.

14 • If, on the other hand, the General Assembly changed the

law, there are two possible results.

o If the General Assembly intended the change to

apply retroactively, we would still conclude that the

Attorney General was not required to prove a

significant public impact.

o But, if the General Assembly did not intend the

change to apply retroactively, then Hall and Castle

would lead us to conclude that the Attorney General

was still required to prove a significant public

impact in this case.

¶ 33 We next proceed to answer the question of whether the

General Assembly changed or clarified the law.

C. Change or Clarification?

1. Law

¶ 34 When the General Assembly amends a statute, we presume

that it intends to change the law, not simply to clarify it. Corsentino

v. Cordova, 4 P.3d 1082, 1091 (Colo. 2000). This presumption can

be rebutted, however, by showing that the General Assembly meant

only to clarify an existing ambiguity in the statute. Acad. of Charter

15 Schs. v. Adams Cnty. Sch. Dist. No. 12, 32 P.3d 456, 464 (Colo.

2001). If an amendment merely clarifies an ambiguity, the law

remains unchanged. Id.

¶ 35 Colorado courts apply a three-part analysis to distinguish

between a change and a clarification. Williams v. Dep’t of Pub.

Safety, 2015 COA 180, ¶¶ 92-93. First, a court considers whether

the prior version of the statute was ambiguous; second, the court

looks to the legislative history, including statements made by the

bill’s sponsors regarding its purpose; and third, the court considers

the statute’s plain language to determine if the General Assembly

intended to clarify, not change, the statute. Id.

2. Analysis

¶ 36 We conclude, for the following reasons, that applying the

three-part analysis here does not rebut the presumption that the

General Assembly intended to change, rather than clarify, the

Consumer Act.

¶ 37 First, the prior version of the Consumer Act was not

ambiguous about requiring the Attorney General to prove

significant public impact. Rather, Hall imposed this responsibility

more than two decades before the General Assembly passed House

16 Bill 19-1289. See City of Colorado Springs v. Powell, 156 P.3d 461,

468 (Colo. 2007)(“These decisions, in conjunction with the General

Assembly’s inaction in addressing the interpretations therein, lead

us to the conclusion that there was no ambiguity . . . .”).

¶ 38 Largely ignoring Hall, the Attorney General instead focuses on

Castle, suggesting that this decision was what prompted the

General Assembly to step in and “clarify the law.” But the timing of

the bill does not clearly support this contention because when the

bill was first introduced — which was before Castle was announced

— it contained language that affected the obligation of any party —

public or private — to prove significant public impact in a

Consumer Act case: “Standing to bring an action under this article

1 does not require proof that a deceptive trade practice has a

¶ 39 It is true that the bill was amended post-Castle to refer

specifically to the elements of a Consumer Act claim brought by the

Attorney General: “An action under this article 1 brought by the

attorney general . . . does not require proof that a deceptive trade

practice has a significant public impact.” But this amendment does

not affect the fact that, pre-Castle, the General Assembly was

17 already tinkering with the requirement of proving a significant

public impact.

¶ 40 Second, the legislative history of the bill is ambiguous as to

whether the General Assembly intended for the significant public

impact provision to be a mere clarification of the law. The existence

of this ambiguity means that there is no “clear indication” that the

General Assembly intended to clarify the law, see Dep’t of Transp. v.

Gypsum Ranch Co., 244 P.3d 127, 131 (Colo. 2010), so the

presumption that the bill changed the law has not been rebutted.

¶ 41 For example, during a committee hearing, one of the bill’s

sponsors said that the bill “removes a case law requirement for

significant public impact.” Hearings on H.B. 19-1289 before the S.

Judiciary Comm., 72d Gen. Assemb., 1st Reg. Sess. (Apr. 24,

2019)(statement of Mike Foote, Colorado State Senator). He

explained that, in 1998, our supreme court had “address[ed] the

elements that would have to be proven by either a private party in a

private cause of action” or by the “[A]ttorney [G]eneral . . . about

what would be a violation of” the Consumer Act. Id. Referring to

Hall, the sponsor continued by saying that it “pretty much put in

this requirement that [there] had to [be] a significant public impact

18 before it could be addressed under the Consumer Act.” Id.; see also

Novak v. Craven, 195 P.3d 1115, 1122 (Colo. App. 2008)(“[T]he

testimony before the House and Senate Judiciary Committees of the

General Assembly reflects that the overriding purpose of the 2008

amendment was to alter the legal precedent established nearly a

decade ago . . . .”).

¶ 42 In addition to these statements, other legislative history

suggests that the bill’s purpose was to change the law, not clarify it:

• an attachment to the sponsor’s legislative packet stated:

“Colorado is 1 of only 7 states that require proof of public

harm/impact,” Hearings on H.B. 19-1289 before the H.

Judiciary Comm., 72d Gen. Assemb., 1st Reg. Sess.,

attach. H (Apr. 9, 2019); and

• the elected Attorney General testified before one of the

General Assembly’s committees that

o eliminating the requirement of proving a significant

public impact would beneficially affect when the

Attorney General’s office could initiate a consumer

protection case because instead of waiting until a

fraudster has committed one hundred instances of

19 fraud, “[we are] able to act quicker . . . to prevent

more harm from happening”; and

o the reason the Attorney General’s office may not

have “act[ed] earlier” in some fraud cases was

“because we have a statutory bar that prohibited us

from [doing so].”

Hearings on H.B. 19-1289 before the H. Judiciary

Comm., 72d Gen. Assemb., 1st Reg. Sess. (Apr. 9,

2019)(statement of Phil Weiser, Colorado Attorney

General).

¶ 43 At the same time, the Attorney General points to testimony by

a second sponsor of the bill who said that the significant public

impact requirement — which he acknowledged had been “a

threshold requirement” for the past twenty-one years — is “not an

element” that the General Assembly “ever really agreed to” and is

“contrary to the very spirit and intent of the [Consumer Act].”

Hearings on H.B. 19-1289 before the H. Judiciary Comm., 72d Gen.

Assemb., 1st Reg. Sess. (Apr. 9, 2019)(statement of Mike Weissman,

Colorado State Representative).

20 ¶ 44 This statement, the Attorney General says, shows that the bill

was intended to clarify the law — that is, it was never the General

Assembly’s intent to have the significant public impact requirement

apply to Consumer Act claims initiated by the Attorney General.

But, when the second sponsor made this statement, he was talking

about the original version, which would have removed the

significant public impact requirement for all Consumer Act claims,

not just those initiated by the Attorney General. So, given the

timing of this statement and the version of the bill that the second

sponsor was addressing at the time, the second sponsor’s statement

sheds little light on the question of whether the amended bill that

eventually became law was intended as a clarification or a change.

¶ 45 Even so, “[a] legislative statement ‘cannot control the

interpretation of an earlier enacted statute.’” People v. Vigil, 251

P.3d 442, 449 (Colo. App. 2010)(quoting O’Gilvie v. United States,

519 U.S. 79, 90 (1996)). Indeed, the General Assembly has

amended the Consumer Act repeatedly since Hall was decided, but

until House Bill 19-1289, it had not addressed the Attorney

General’s obligation to prove a significant public impact. “When the

legislature reenacts or amends a statute and does not change a

21 section previously interpreted by settled judicial construction, it is

presumed that it agrees with [the] judicial construction of the

statute.” Tompkins v. DeLeon, 197 Colo. 569, 571, 595 P.2d 242,

243-44 (1979). So, as is pertinent to this part of our analysis,

“where an existing statute has already undergone construction by a

final judicial authority, further legislative amendment necessarily

reflects the legislature’s understanding of that construction, or

perhaps simply disagreement with how it is being (or fear of how it

is likely to be) interpreted by other courts.” Union Pac. R.R. Co. v.

Martin, 209 P.3d 185, 188-89 (Colo. 2009). Such an amendment

“can fairly be presumed to intend a change in the law — the law as

the amending legislature believes it to be following earlier judicial

construction — but it implies virtually nothing about original

legislative intent.” Id.

¶ 46 This brings us to the third part of our analysis: we conclude

that the language of the bill does not rebut the presumption that

the General Assembly intended to change the law. For example,

there is no statement in the bill that “it merely clarifies” the

Consumer Act. See Williams, ¶ 94. To the contrary, the bill title

states that it “concern[s] the creation of additional protections in the

22 Colorado consumer code.” Ch. 268, 2019 Colo. Sess. Laws 2515

(emphasis added). Such language indicates an intent to change the

law. See Powell, 156 P.3d at 466 (Bill language referring to

“‘modifications of, and additions to’ . . . suggests a legislative

recognition that the amendment creates substantive changes to the

law.”). And the bill made substantive changes to the Consumer Act,

such as including reckless conduct to the definitions of consumer

protection violations and adding penalties for defrauding the

elderly. 2019 Colo. Sess. Laws at 2516-17.

¶ 47 Nonetheless, the Attorney General points to the applicability

clause of the bill, which states that “[s]ections 2 and 3 of this act

apply to civil actions filed on or after the effective date of this act.

Section 4 of this act applies to judgments entered into on or after

the effective date of this act.” 2019 Colo. Sess. Laws at 2517.

Because this clause “contains no effective date for Section 1” (where

the significant public impact requirement was addressed), the

Attorney General submits that the General Assembly must have

intended to clarify “what the law has always been.” But the

absence of an effective date, without more, does not constitute a

23 “clear indication” that the General Assembly intended to clarify the

law. Union Pac. R.R. Co., 209 P.3d at 188.

¶ 48 Perhaps recognizing that overcoming this presumption is a

steep hill to climb, the Attorney General alternatively argues that,

even if the bill changed the law, “the amendment would still apply

retroactively.” As we shall explain next, we disagree with that

contention, too.

D. Prospective or Retroactive?

¶ 49 Absent legislative intent to the contrary, a statute is presumed

to operate prospectively, meaning it only applies to events occurring

after its effective date. § 2-4-202, C.R.S. 2020; In re Estate of

DeWitt, 54 P.3d 849, 854 (Colo. 2002). By contrast, a statute

operates retroactively if it applies to events that have already

occurred or to rights and obligations that existed before its effective

date. DeWitt, 54 P.3d at 854. The presumption of prospective

application is rooted in policy considerations, such as the notion of

fair play and the desire to promote stability in the law. Powell, 156

P.3d at 464. To overcome this presumption, a statute must reveal a

24 clear legislative intent to have the statute applied retroactively.

DeWitt, 54 P.3d at 854.

¶ 50 While express language from the General Assembly stating its

intent for a statute to be applied retroactively is not required for us

to decide that it applies retroactively, it is “certainly the most

efficient and obvious manner of communicating such a desire.”

Powell, 156 P.3d at 466.

¶ 51 The General Assembly’s power to abrogate case law remains

subject to the principle that, “unless intent to the contrary is

shown, legislation shall apply only to those transactions occurring

after it takes effect.” Powell, 156 P.3d at 464. We recognize that

“express retroactivity language is unnecessary” and that “an intent

that a statute operate retroactively may be implied.” In re Marriage

of Weekes, 2020 COA 16, ¶ 26. But we nonetheless conclude that

there is no clear indication in the statute, either express or implied,

expressing an intent that section 1 apply retroactively. As a result,

we further conclude that the presumption that the General

Assembly intended section 1 to apply only prospectively controls

our decision.

25 ¶ 52 First, the bill does not state that the public impact language in

section 1 is to be applied retroactively. If the General Assembly had

intended for section 1 of the bill to be retroactive, it could have said

so. People v. Griffin, 397 P.3d 1086, 1089 (Colo. App. 2011). And it

knows how to say so. See § 18-1.3-401.5(1), C.R.S. 2020

(sentencing ranges “only apply to a conviction for a drug felony

offense . . . committed on or after October 1, 2013”); see also Ch.

244, sec. 1, 2009 Colo. Sess. Laws 1099 (containing a legislative

declaration stating that it was the General Assembly’s intent in

enacting a statute “to clarify” the meaning of certain parts of the

criminal theft statute).

¶ 53 Second, as we have shown above, the General Assembly

expressly made other sections of the bill retroactive in the

applicability clause. See Taylor Morrison of Colo., Inc. v. Bemas

Constr., Inc., 2014 COA 10, ¶ 23 (“[W]hen legislation purports to

apply to actions filed ‘on or after’ a certain date, such language

necessarily requires retroactive application of the statute because

for an action to be filed on the effective date, it must have accrued

prior to that date.”). By making these sections retroactive, and by

excluding section 1 from that statement, we conclude that the

26 General Assembly expressed at least some intent that section 1 is

not to be applied retroactively. See Well Augmentation Subdistrict of

Cen. Colo. Water Conservancy Dist. v. City of Aurora, 221 P.3d 399,

419 (Colo. 2009)(“When the General Assembly includes a provision

in one section of a statute, but excludes the same provision from

another section, we presume that the General Assembly did so

purposefully.”); Holcomb v. Jan-Pro Cleaning Sys. of S. Colo., 172

P.3d 888, 894 (Colo. 2007)(“We do not add words to the statute or

subtract words from it.”); Riley v. People, 104 P.3d 218, 221 (Colo.

2004)(“The presence of one exception is generally construed as

excluding other exceptions.”); Beeghly v. Mack, 20 P.3d 610, 613

(Colo. 2001)(“Under the rule of interpretation expressio unius

exclusio alterius, the inclusion of certain items implies the exclusion

of others.”); A.C. v. People, 16 P.3d 240, 243 (Colo. 2001)(“The court

will not create an exception to a statute that the plain meaning does

not suggest or demand.”).

¶ 54 Based on these conclusions, we next conclude that Hall

required the Attorney General to prove significant public impact as

part of its case. Recognizing this possibility, both parties ask us to

decide whether the Attorney General’s evidence met the burden of

27 proof in this case: the Attorney General asks us to hold that “the

record establishes that [CollegeAmerica’s] predatory practices had a

significant impact on Coloradans”; CollegeAmerica responds that,

for the claims “involving only a few students, judgment should be

entered [for them] . . . as a matter of law.”

¶ 55 But whether there is a significant public impact in a

Consumer Act case is a question of fact. One Creative Place, LLC v.

Jet Ctr. Partners, LLC, 259 P.3d 1287, 1289-90 (Colo. App. 2011).

In this case, the trial court decided that the Attorney General did

not have to prove that there had been a significant public impact,

so it did not make any factual findings on this issue. As a result,

we do not know whether the court would have decided the case

differently if it had made such findings.

¶ 56 More importantly, based on the trial court’s rulings —

including a pretrial ruling that the Attorney General would not be

required to prove significant public impact to prevail on its

Consumer Act claims — the parties lacked the incentive to present

evidence, rebut evidence, and develop a record on this issue. Cf.

Zwick v. Simpson, 193 Colo. 36, 39, 572 P.2d 133, 134 (1977)(“[I]t

would be inequitable to foreclose the possibility of recovery because

28 the plaintiff failed to present evidence on a theory of damages which

the trial court felt was inapplicable.”). We therefore conclude that

we must reverse the trial court’s judgment on this ground and

remand this case for a new trial on all the Consumer Act claims.

See Carousel Farms Metro. Dist. v. Woodcrest Homes, Inc., 2019 CO

51, ¶ 18 (observing that trial courts find facts while appellate courts

pronounce the law).

II. CollegeAmerica Did Not (and Does Not) Have a Right to a Jury Trial

¶ 57 CollegeAmerica next contends that it was entitled to a jury

trial. We disagree.

A. Preservation and Standard of Review

¶ 58 CollegeAmerica asked for a jury trial. The Attorney General

moved to strike the jury demand. The trial court granted the

motion to strike, reasoning that, under People v. Shifrin, 2014 COA

14, the basic thrust of the action was equitable, not legal, in nature.

We review the issue de novo. Shifrin, ¶ 14.

B. Law

¶ 59 There is no constitutional right to a jury trial in a civil case in

Colorado. Setchell v. Dellacroce, 169 Colo. 212, 215, 454 P.2d 804,

29 806 (1969). Rather, the right is derived from C.R.C.P. 38. Id.

Under Rule 38, it is the character of the action that determines

whether an issue of fact will be tried to a court or to a jury. Kaitz v.

Dist. Ct., 650 P.2d 553, 554 (Colo. 1982). Legal actions go to a jury.

Am. Fam. Mut. Ins. Co. v. DeWitt, 218 P.3d 318, 322 (Colo. 2009).

Equitable actions do not. Id.

¶ 60 To determine whether an action is legal or equitable in nature,

courts engage in a claim-by-claim review of a plaintiff’s complaint.

Mason v. Farm Credit of S. Colo., ACA, 2018 CO 46, ¶ 11. If the

complaint contains only legal claims, then the case will be tried to a

jury (assuming, that is, that a jury was timely demanded and that

the requisite fee was paid). Id. If the complaint contains only

equitable claims, then the case will be tried to the court. Id. If the

complaint contains both legal and equitable claims, then the court

“must look to the overall character of the action to determine

whether it is fundamentally legal or equitable.” Id.

¶ 61 There are two ways to assess whether a claim is legal or

equitable. Peterson v. McMahon, 99 P.3d 594, 597 (Colo. 2004).

The first method is to examine the nature of the remedy sought. Id.

Generally, legal claims seek monetary damages, while equitable

30 claims seek to invoke the coercive powers of the court. Id. The

second method is to examine the historical nature of the right the

plaintiff wants to enforce. Id. For example, a claim is equitable

when the plaintiff “is seeking to enforce a right originally created in

or decided by equity courts.” Id. at 597-98. The remedial method is

preferred to the historical. Mason, ¶ 27.

C. Analysis

¶ 62 In this case, the Attorney General pled six claims seeking relief

under the Consumer Act and one claim seeking relief under the

Credit Code. As relief, the Attorney General sought (1) a declaration

that CollegeAmerica’s conduct violated the Consumer Act and the

Credit Code; (2) an order permanently enjoining CollegeAmerica

“from engaging in any deceptive trade practices and unconscionable

transactions”; (3) “appropriate orders” to prevent future

misconduct; (4) a judgment “for restitution, disgorgement, or other

equitable relief”; (5) an order requiring CollegeAmerica to pay civil

penalties; and (6) an order requiring CollegeAmerica to pay the fees

and costs that the Attorney General had incurred in pursuing the

case.

31 ¶ 63 CollegeAmerica asserts that it was entitled to a jury trial

because the monetary relief requested by the Attorney General

“overwhelmed” the equitable relief requested, thereby revealing the

fundamentally legal character of the action. To support this

contention, it points to the trial court’s decision to deny preliminary

injunctive relief and the Attorney General’s eventual request for $3

million in civil penalties and more than $200 million in restitution

and disgorgement (amounts that were unknown when the

complaint was filed).

¶ 64 But, “whether an action is legal or equitable is dictated only by

the claims in a plaintiff’s complaint.” Mason, ¶ 11 (emphasis

added). Accordingly, information that came to light after the

Attorney General filed the complaint is irrelevant to our analysis.

¶ 65 What is more, the fact that a plaintiff is seeking money — even

large sums of money — does not alone transform an equitable

action into a legal one. See Cont’l Title Co. v. Dist. Ct., 645 P.2d

1310, 1318 (Colo. 1982)(“[N]ot all forms of monetary relief need

necessarily be characterized as legal relief for purposes of the jury

trial requirement.”); see also Snow Basin, Ltd. v. Boettcher & Co.,

805 P.2d 1151, 1154 (Colo. App. 1990)(even where a plaintiff seeks

32 to recover money damages, a jury trial is not required if “the

essence” of the action is equitable).

¶ 66 Beginning with the Consumer Act claims, we conclude that

Shifrin is persuasive. In that case, as in this one, the Attorney

General brought an action under the Consumer Act seeking

injunctive relief, civil penalties, restitution, and disgorgement.

Shifrin, ¶ 12. Noting that a majority of states, including

Washington, treat similar consumer protection actions as equitable

in nature, the division concluded that the defendant was not

entitled to a jury trial. Id. at ¶¶ 18-22. The division explained that

the Consumer Act serves primarily to deter and to punish deceptive

trade practices, not to compensate injured parties. Id. at ¶ 21 (first

citing Hall, 969 P.2d at 231; and then citing May Dep’t Stores Co. v.

State ex rel. Woodard, 863 P.2d 967, 972 (Colo. 1993)). So,

although the Consumer Act provides for civil penalties, restitution,

and disgorgement, those monetary consequences are ancillary to

the Act’s equitable thrust. Id. at ¶¶ 20-21. We agree with Shifrin,

so we therefore conclude that the Consumer Act claims in this case

are equitable.

33 ¶ 67 Turning to the Credit Code claim, we observe that the Credit

Code does not provide for a jury trial as a matter of right. See

§ 5-6-115, C.R.S. 2020 (a defendant may request a jury trial). But,

even assuming that the Credit Code claim in this case is legal, not

equitable, in nature, we nonetheless conclude that the overall

character of the action is equitable because the Consumer Act

claims are more numerous and more substantive than the Credit

Code claim. See Mason, ¶ 32.

¶ 68 Last, we note that the individual defendants assert that they

were entitled to a jury trial because an individual defendant’s

personal liability for corporate wrongdoing is a question of fact that

must be resolved by a jury. We do not read the case that they cite

for that proposition, Hoang v. Arbess, 80 P.3d 863 (Colo. App.

2003), so broadly.

¶ 69 The issue in Hoang was whether the trial court erred when it

usurped the power of the jury — the case’s fact finder — by entering

a directed verdict when the evidence did not support such a verdict.

Id. at 868. In concluding that the trial court had erred, the division

focused on the sufficiency of the evidence that had been presented

at trial, explaining that “there was sufficient evidence presented

34 that defendant knew or should have known [about certain conduct].

Hence, the issue of defendant’s negligence should not have been

taken from the jury by directed verdict.” Id. at 869.

¶ 70 But Hoang does not say that only a jury could have weighed

the evidence and determined whether the defendant was liable. For

example, if the fact finder in Hoang had been the court instead of

the jury, the defendant’s personal liability would have remained a

question of fact. The only difference would have been that, rather

than moving for a directed verdict under C.R.C.P. 50 at the close of

the plaintiffs’ case, the defendant would have moved to dismiss

under C.R.C.P. 41(b)(1). Gold Hill Dev. Co., L.P. v. TSG Ski & Golf,

LLC, 2015 COA 177, ¶ 44.

¶ 71 We conclude that CollegeAmerica was not entitled to a jury

trial when this case was originally tried and that it will not be

entitled to one on remand.

III. The Consumer Act Claims Are Not Barred by the Educational Malpractice Doctrine

¶ 72 The corporate defendants contend that the Attorney General’s

first three claims constitute “improper qualitative attacks” on the

education that CollegeAmerica provided. We address this issue

35 only to the extent that it was raised in a pretrial motion to dismiss.

To the extent that this contention is based on evidence submitted at

trial, we will not address it because we are reversing the judgment

and remanding the case for a new trial.

¶ 73 As we shall explain, we disagree that the Consumer Act claims

are barred by the educational malpractice doctrine.

A. Preservation

¶ 74 The corporate defendants asked the trial court to dismiss the

Attorney General’s first three claims, arguing that they were

“improperly premised upon challenging the value of a

CollegeAmerica education, in violation of the bar on claims for

educational malpractice and the mandatory deference to decisions

made by educational accrediting organizations.” The court denied

the motion, deciding that these claims were not premised on “the

quality of [CollegeAmerica’s] educational programs.”

B. Standard of Review

¶ 75 We review the trial court’s ruling on a motion to dismiss under

C.R.C.P. 12(b)(5) de novo. Ragan v. Ragan, 2021 COA 75, ¶ 14. In

resolving a motion to dismiss, we accept all factual allegations in

the complaint and attachments as true, viewing them in the light

36 most favorable to the plaintiff. Froid v. Zacheis, 2021 COA 74, ¶ 18.

To state a claim upon which relief can be granted, “a party must

plead sufficient facts that, if taken as true, suggest plausible

grounds to support” the claim. Patterson v. James, 2018 COA 173,

¶ 23 (citing Warne v. Hall, 2016 CO 50, ¶ 24).

¶ 76 The corporate defendants assert that the Consumer Act “does

not allow courts to value college education.” Yet, according to the

corporate defendants, the allegations in the complaint — such as

the claim that CollegeAmerica “misrepresented the outcomes, value

and quality of their various degree programs” — ask the court to do

just that.

¶ 77 The corporate defendants rely on CenCor, Inc. v. Tolman, 868

P.2d 396, 398 (Colo. 1994), in which our supreme court held that

challenges to “the general quality of educational experiences

provided to students have generally been rejected.” See also Tolman

v. CenCor Career Colls., Inc., Div. of CenCor, Inc., 851 P.2d 203, 205

(Colo. App. 1992)(“Since education is a collaborative and subjective

process whose success is largely reliant on the student, and since

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

37 abilities render it impossible to establish any quality or curriculum

deficiencies as a proximate cause to any injuries, we rule that there

is no workable standard of care here and defendant would face an

undue burden if forced to litigate its selection of curriculum and

teaching methods.”), aff’d, 868 P.2d 396.

¶ 78 But, in this case, the Attorney General’s claims do not pertain

to the quality of the education provided by CollegeAmerica. For

example, none of the allegations relate to the quality of the

instructors or curriculum at CollegeAmerica. Instead, the

allegations are based on specific representations made by

CollegeAmerica in its advertisements and during the admissions

process — such as telling students that they could pursue a degree

in sonography, get certified as an emergency medical technician, or

qualify to sit for the limited scope radiology examination. See

Tolman, 868 P.2d at 399 (holding claims based on an institution’s

failure to provide “specifically promised educational services” are

allowed). Such claims do not fall within the realm of educational

malpractice. See Ross v. Creighton Univ., 957 F.2d 410, 416 (7th

Cir. 1992)(rejecting claims of educational malpractice that ask the

court “to evaluate the course of instruction . . . [and] review the

38 soundness of the method of teaching that has been adopted by an

educational institution” (quoting Paladino v. Adelphi Univ., 454

N.Y.S.2d 868, 872 (App. Div. 1982))).

¶ 79 Further, we agree with the trial court that CollegeAmerica was

not excluded from the purview of the Consumer Act simply because

it is an educational institution that is subject to other regulation

and oversight. “Our cases have consistently applied the [Consumer

Act] to advertising and marketing practices that fit within its tenets

based on the applicability of the Act to the actions alleged and

without regard to the occupational status of the defendant.” Crowe,

126 P.3d at 202.

¶ 80 This reasoning lines up with the rationale of cases in other

jurisdictions that allow consumer protection act claims based on

educational services. See, e.g., Alsides v. Brown Inst., Ltd., 592

N.W.2d 468, 474 (Minn. Ct. App. 1999)(“[N]othing in the statute or

caselaw precludes application of the act to educational services

provided by a private, proprietary, for-profit educational

institution.”); Scott v. Ass’n for Childbirth at Home, Int’l, 430 N.E.2d

1012, 1015 (1981)(“[P]urchasers of educational services may be as

39 much in need of protection against unfair or deceptive practices in

their advertising and sale as are purchasers of any other service.”).

¶ 81 Accordingly, we conclude that the record and the law support

the trial court’s decision to deny the corporate defendants’ motion

to dismiss.

IV. CollegeAmerica’s Use of National Wage Data in Its Advertisements Does Not Shield It from Liability

¶ 82 The corporate defendants next contend that “colleges cannot

be liable for advertising truthful federal wage data that [the

Department of Education] requires them to disclose.” To the extent

that this contention is based on evidence presented during the trial,

we do not address it because we have reversed the judgment, and

we are remanding the case for a new trial. But, to the extent the

corporate defendants assert that, as a matter of law, CollegeAmerica

cannot be held liable under the Consumer Act for using national

wage data in its advertisements, we disagree.

¶ 83 As is pertinent to this issue, the crux of the Attorney General’s

case concerning CollegeAmerica’s advertisements was that it

routinely used national wage data to imply that, by attending

40 CollegeAmerica, consumers could expect to earn incomes similar to

those being advertised, when, in reality, CollegeAmerica graduates

made significantly less money. But, according to the corporate

defendants, a federal regulation, 34 C.F.R. § 668.6 (2019), required

CollegeAmerica to disclose the national wage data to prospective

students, so they cannot be held liable under the Consumer Act’s

section 6-1-106(1)(a), C.R.S. 2020, which we describe next.

¶ 84 Section 6-1-106(1)(a) provides that the Consumer Act does not

apply to “[c]onduct in compliance with the orders or rules of, or a

statute administered by, a federal, state, or local governmental

agency.” Our supreme court has twice explained what this means.

¶ 85 First, in Showpiece Homes Corp. v. Assurance Co. of America,

38 P.3d 47 (Colo. 2001), the court reasoned that section

6-1-106(1)(a) “exempts only those actions that are ‘in compliance’

with other laws,” and “[c]onduct amounting to deceptive or unfair

trade practices . . . would not appear to be ‘in compliance’ with

other laws.” Id. at 56. Moreover, the court emphasized that the

section exists to avoid conflicts between laws, and, therefore, only

those activities specifically authorized by a regulation or another

41 statute are exempt. Id. Noting that “almost every business is

subject to some type of regulation,” the court made clear that “the

mere existence of a regulatory body to oversee certain standards of

an industry does not remove all acts and practices of that industry

from the provisions of the [Consumer Act].” Id. at 56-57.

¶ 86 Then, in Crowe, a case concerning deceptive advertising, the

court reaffirmed that section 6-1-106(1)(a) “does not . . . grant a

wholesale exemption to any industry or occupation that is subject

to regulation.” Crowe, 126 P.3d at 207.

¶ 87 The corporate defendants submit that CollegeAmerica’s use of

national wage data in its advertisements complied with 34 C.F.R.

§ 668.6 (2019) and, as a result, is not conduct to which the

Consumer Act applies. The regulation, which is no longer in effect,

required schools to disclose certain information to prospective

students: (1) the occupations that the program prepared students to

enter, along with links to an online database, O*NET, containing

detailed information — including national wage data — about those

occupations; (2) the on-time graduation rate for students; (3) the

cost of tuition, fees, books, and supplies; (4) the job placement rate

42 for students completing the program; and (5) the median loan debt

incurred by students.

¶ 88 But nothing in the regulation required CollegeAmerica to use

national wage data in its advertisements. At most, the regulation

required them to disclose a link to O*NET. And, in any event, 34

C.F.R. § 668.6 (2019) did not authorize it to use national wage data

in a false or misleading manner, as the Attorney General alleged. In

fact, as the Attorney General points out, another federal regulation,

34 C.F.R. § 668.74(e) (2020), explicitly reads that a school may not

make false, erroneous, or misleading statements concerning

government job market statistics in relation to the potential

placement of its graduates.

¶ 89 We therefore conclude that, as a matter of law,

CollegeAmerica’s purported compliance with 34 C.F.R. § 668.6

(2019) does not shield it from liability under the Consumer Act.

V. The Attorney General Did Not Prove That All EduPlan Loans Were Unconscionable

¶ 90 We now turn to the cross-appeal. The Attorney General

contends that the trial court erred when it concluded that

CollegeAmerica’s EduPlan loan program as a whole was not

43 unconscionable because the court misread section 5-6-112(3)(a).

Although we agree that the court construed this section too

narrowly, we nonetheless conclude that the court’s factual findings

were supported by the record and that, based on those findings, the

Attorney General did not prove that all EduPlan loans were either

substantively or procedurally unconscionable. Accordingly, we

affirm the court’s judgment in this regard.

A. Standard of Review

¶ 91 “When a court enters a judgment following a bench trial, that

judgment presents a mixed question of law and fact.” State Farm

Mut. Auto. Ins. Co. v. Johnson, 2017 CO 68, ¶ 12. We review legal

conclusions de novo. Id. We review factual findings for clear error,

and we will not disturb those findings unless they are clearly

erroneous and not supported by the record. Winston v. Polis, 2021

COA 90, ¶ 10.

¶ 92 This issue also involves statutory interpretation.

¶ 93 When construing a statute, our primary purpose is to

ascertain and give effect to the General Assembly’s intent.

Broomfield Senior Living Owner, LLC v. R.G. Brinkmann Co., 2017

COA 31, ¶ 17. To do so, we start with the language of the statute,

44 giving its words and phrases their plain and ordinary meanings. Id.

We read those words and phrases in context and construe them

according to the rules of grammar and common usage. Id. In so

doing, we look at the scheme as a whole, giving consistent,

harmonious, and sensible effect to all of its parts. Id. We interpret

statutes to effectuate the purpose of the legislative scheme.

Tallman Gulch Metro. Dist. v. Natureview Dev., LLC, 2017 COA 69,

¶ 12. We must avoid constructions that would render any words or

phrases superfluous or lead to illogical or absurd results. Elder v.

Williams, 2020 CO 88, ¶ 18.

¶ 94 If the statutory language is clear and unambiguous, we apply

it as written and look no further. Vallagio at Inverness Residential

Condo. Ass’n v. Metro. Homes, Inc., 2017 CO 69, ¶ 16. If, however,

the statute is ambiguous, then we may consider other tools of

statutory construction, including the statute’s legislative history,

the ends to be achieved by the statute, and the consequences of a

given construction. Bernache v. Brown, 2020 COA 106, ¶ 24. A

statute is ambiguous if it is susceptible of multiple reasonable

interpretations. Nieto v. Clark’s Mkt., Inc., 2021 CO 48, ¶ 13.

45 B. The Credit Code

¶ 95 The Credit Code regulates consumer credit transactions,

including consumer loans, leases, and credit sales. Oasis Legal Fin.

Grp., LLC v. Coffman, 2015 CO 63, ¶ 34. Among other things, it

empowers the administrator of the Code to bring a civil action to

restrain a creditor from making or enforcing unconscionable terms

or provisions in consumer loans, § 5-6-112(1)(a), or from engaging

in a course of fraudulent or unconscionable conduct in inducing

consumers to enter into such loans, § 5-6-112(1)(b). Subsection

(1)(a) describes substantive unconscionability. Subsection (1)(b)

describes procedural unconscionability.

¶ 96 To grant relief under section 5-6-112, a court must make three

findings: (1) that the creditor has made unconscionable agreements

or has engaged or is likely to engage in a course of fraudulent or

unconscionable conduct; (2) that the conduct or agreements have

caused or are likely to cause consumer injury; and (3) that the

creditor has been able to cause injury primarily because the

transactions involved are credit transactions. § 5-6-112(2)(a)-(c).

¶ 97 In applying section 5-6-112, a court is required to consider

each of the six factors spelled out in subsection (3), which we will

46 discuss in more detail below, and it may consider other factors at

its discretion. See § 5-6-112(3) (“consideration shall be given to

each of the following factors, among others”)(emphasis added); see

also Nieto, ¶ 32 (“[W]e have ‘consistently held that the use of the

word “shall” in a statute is usually deemed to involve a mandatory

connotation.’” (quoting People v. Dist. Ct., 713 P.2d 918, 921 (Colo.

1986))).

¶ 98 The trial court made detailed factual findings concerning the

subsection (3) factors. It then concluded that, with respect to

fourteen identified borrowers — students who were incapable of

performing college-level work because of either severe learning

disabilities or “dire” economic circumstances; students who took

out loans to pursue a degree in sonography, to seek EMT

certification, or to sit for the limited scope radiology examination;

and students for whom a loan was created and their signature

“waived” — CollegeAmerica had engaged in fraudulent or

unconscionable conduct in inducing them to enter into their

EduPlan loans. At the same time, the court found that the EduPlan

47 loan program, as a whole, was not unconscionable. The Attorney

General takes issue with the latter conclusion.

¶ 99 Specifically, the Attorney General contends that the court

misapplied factor (3)(a), which we shall call the “probability of

repayment” factor, that instructs courts to consider “[w]hether the

creditor should have reasonably believed at the time [the loan was]

made that, according to the credit terms or schedule of payments,

there was no reasonable probability of payment in full of the

obligation by the consumer.” § 5-6-112(3)(a).

¶ 100 According to the court, application of this factor begins and

ends with the terms of a loan — and, therefore, does not require

consideration of a borrower’s personal circumstances — because

the phrase “according to the credit terms or schedule of payments”

tells courts that the loan’s terms should be the focus of their

analysis.

¶ 101 Said differently, the court explained that the factor worked

against the Attorney General because, even though the court found

that CollegeAmerica annually wrote off upwards of forty percent of

outstanding EduPlan loan debt as uncollectible, the Attorney

General did not “tie[] CollegeAmerica students’ poor performance on

48 paying off their EduPlan loans directly and specifically to the credit

terms and payment schedules of the loans themselves, as required

by the statute.”

¶ 102 The Attorney General contends that the court’s reading is too

narrow and contravenes the legislative intent of the Credit Code.

Although we conclude that the probability of repayment factor is

ambiguous, we nonetheless agree with the Attorney General that

the trial court read that factor inconsistently with the General

Assembly’s intent.

¶ 103 Looking first at the language of section 5-6-112(3)(a), we

conclude that the probability of repayment factor is susceptible of

multiple reasonable interpretations. On the one hand, the factor

explicitly directs a court to look at the terms of a loan when

determining whether the creditor should have reasonably believed

that full repayment of the loan was likely. On the other hand, the

factor indicates that this determination must be made with

reference to “the consumer.” In other words, a court must decide

whether a reasonable lender would have thought it reasonably

probable that this borrower would fully repay a loan with these

terms. Further complicating matters, the text of the factor does not

49 explain who “the consumer” is or which factors concerning a

consumer’s circumstances warrant consideration.

¶ 104 Our task is to resolve the tension between these competing

interpretations. To do so, we first consider the Credit Code’s

legislative history. See Bernache, ¶ 24. As is relevant to the

question before us, the Credit Code was repealed and reenacted in

2000, at which time the probability of repayment factor was

amended. Before 2000, this factor instructed courts to consider

“[b]elief by the creditor at the time [the loan was] made that there

was no reasonable probability of payment in full of the obligation by

the debtor.” § 5-6-111(3)(a), C.R.S. 1999.

¶ 105 There are two relevant differences between the old version of

the factor and the current one: (1) the factor is now objective

instead of subjective; and (2) the clause “according to the credit

terms or schedule of payments” was added. We are concerned with

the second change.

¶ 106 Before the amendment, a court was free to consider whatever

facts it found relevant when deciding whether a lender believed full

repayment by a borrower was reasonably probable. After the

amendment, a court is obligated to consider the terms of the loan.

50 The question is whether a court’s inquiry is now limited to only the

terms. We think the answer is “no,” and our conclusion finds

support in a report that was authored by the Credit Code Revision

Committee in anticipation of the 2000 amendments.

¶ 107 According to the report, the probability of repayment factor

“should be amended to require that the creditor’s belief be

objectively reasonable and that the ability to repay also be based on

the repayment terms of the obligation.” Laura E. Udis, Adm’r of the

Unif. Consumer Credit Code, Report of the Uniform Consumer Credit

Code Revision Committee and Actions of the Colorado Commission on

Consumer Credit (Nov. 30, 1999)(emphasis added.) This strongly

suggests that, while the terms of a loan are one thing a court

should consider when applying the factor, they are not the only

thing. See Roberts v. People, 130 P.3d 1005, 1009 (Colo. 2006)(“The

word ‘also’ implies . . . in addition to . . . .”).

¶ 108 Turning next to the Credit Code’s statutory goals, see

Bernache, ¶ 24, the General Assembly declared that the Credit Code

“shall be liberally construed and applied to promote its underlying

purposes and policies.” § 5-1-102(1), C.R.S. 2020. One of those

purposes is to protect consumer borrowers against unfair practices

51 by suppliers of consumer credit. § 5-1-102(2)(d). Interpreting the

probability of repayment factor as allowing a court to consider more

than just the loan terms furthers this purpose.

¶ 109 In addition, our interpretation avoids illogical results. For

example, if a court is only allowed to consider the credit terms or

payment schedule, a creditor would be allowed to make a credit

sale, a loan, or a lease to a consumer whom the creditor knows

would be unable to fully repay, so long as the terms of the

transaction are facially fair. This is precisely the kind of

unscrupulous behavior that the Credit Code is intended to prevent.

¶ 110 So, based on the Credit Code’s legislative history and purpose,

we conclude that the probability of repayment factor requires courts

to look beyond the terms of a loan to the circumstances of the

consumer.

¶ 111 The Attorney General makes an additional point. Based on

the evidence that was presented at trial, the Attorney General

thinks that the phrase “the consumer” means borrowers in the

aggregate. That is, the Attorney General wants to rely on statistics

about the EduPlan loan program as a whole (e.g., a high default

rate) to demonstrate that a reasonable creditor would not have

52 thought that there was a reasonable probability that any EduPlan

loan would be repaid in full. But, instead of borrowers in the

aggregate, section 5-6-112 directs a court to look at “the” — not “a”

— borrower. See People v. Flynn, 2020 COA 54, ¶ 17 (“It is a rule of

law well established that the definite article ‘the’ particularizes the

subject which it precedes. It is a word of limitation as opposed to

the indefinite or generalizing force of ‘a’ or ‘an.’”); see also People v.

Wentling, 2015 COA 172, ¶ 15 (“‘A’ is an indefinite article indicating

that the noun it refers to is not particular, and it is ‘used as a

function word before most singular nouns . . . when the individual

in question is undetermined, unidentified, or unspecified.’” (quoting

Webster’s Third New International Dictionary 1 (2002))).

¶ 112 We further conclude that this means that the Attorney General

could not, as the trial court pointed out, rely solely on evidence that

is “statistical and macroeconomic in nature” when attempting to

prove that a given loan is substantively unconscionable. Rather,

the probability of repayment factor requires evidence about specific

consumers.

¶ 113 Reading subsection (3) as a whole also supports our

conclusion because other factors in subsection (3) direct the court

53 to consider specific consumers. See In re Marriage of Herold, 2021

COA 16, ¶ 8 (“When interpreting a statute, we read and consider

the statute as a whole . . . .”). For example, subsection (3)(b) directs

courts to consider “[w]hether the creditor reasonably should have

known, at the time of the transaction, of the inability of the

consumer to receive substantial benefits from the transaction.”

§ 5-6-112(3)(b) (emphasis added). Whether a borrower will be able

to substantially benefit from a loan would seem to depend primarily

on that borrower’s individual circumstances.

¶ 114 Similarly, subsection (3)(e) directs courts to consider whether

a creditor “has knowingly taken advantage of the inability of the

consumer reasonably to protect his or her interests by reason of

physical or mental infirmities, ignorance, illiteracy, or inability to

understand the language of the agreement, or similar factors.”

§ 5-6-112(3)(e) (emphasis added). These reasons relate to specific

consumers — not aggregate data.

¶ 115 Our conclusion is also consistent with how the Attorney

General and the court both treated the factor with respect to the

allegations of procedural unconscionability. For each of the

fourteen borrowers for whom the court granted relief under

54 subsection (1)(b), the Attorney General introduced evidence specific

to those borrowers that, in turn, allowed the court to find that they

had been treated unconscionably by CollegeAmerica.

¶ 116 Last, we do not address the Attorney General’s contention that

a court may find a loan unconscionable based on the probability of

repayment factor alone because, even if we accept that contention,

the court ultimately did what the Attorney General asked it to do,

which was to consider the terms of EduPlan loans in conjunction

with the Attorney General’s statistical and macroeconomic evidence.

Still the court found that this factor “militates against a finding of

unconscionability in the EduPlan program.”

VI. The Case Must Be Reassigned to a Different Judge on Remand

¶ 117 Finally, the corporate defendants request that we order that all

further proceedings on remand be held before a different judge on

remand. We grant that request.

¶ 118 With nearly fifty witnesses testifying over four weeks, the trial

presented a massive undertaking for everyone involved, including

the court. It was therefore not surprising that, at the trial’s end,

the court took the case under advisement and cautioned the parties

55 that “[w]e will have a written order as soon as possible . . . but it’s

going to take a while to work through all of it.”

¶ 119 But the court took about two years and nine months to issue

its judgment. In a post-trial motion, CollegeAmerica asked the

court to grant them a new trial and transfer the case to a different

judge because “avoiding an appearance of impropriety and

preserving the reality and appearance of justice demand a fresh

start.” The court denied the motion.

B. Analysis

¶ 120 The corporate defendants’ request to reassign this case to a

different judge on remand is “extraordinary” and “should be granted

only when ‘there is proof of personal bias or under extreme

circumstances.’” Guy v. Whitsitt, 2020 COA 93, ¶ 37 (quoting

United States v. Aragon, 922 F.3d 1102, 1113 (10th Cir. 2019)). We

do not think that the judge who presided over the trial harbors any

personal bias that renders him unfit to preside. But we conclude

that the significant delay in issuing the court’s order is an extreme

circumstance that requires a new judge to take over the case on

remand to “preserve the appearance of justice.” Aragon, 922 F.3d

at 1113 (quoting Mitchell v. Maynard, 80 F.3d 1433, 1450 (10th Cir.

56 1996)); see also In re Jones, 728 P.2d 311, 314 (Colo. 1986)(A

judge’s “inexcusable delay” of two years and three months in

issuing a decision after a bench trial “was detrimental to the

interests of the litigants” and “tended to cast disrepute upon the

entire judicial system.”).

¶ 121 The judgment is affirmed in part and reversed in part, and the

case is remanded for proceedings consistent with this opinion.

JUDGE WELLING and JUDGE TOW concur.