April 16, 2014

IAALS Releases Preliminary Findings on Colorado Civil Access Pilot Project

Corina_Gerety_bw_smallThis post originally appeared on IAALS Onlinethe blog for IAALS, the Institute for the Advancement of the American Legal System at the University of Denver, on April 7, 2014.

By Corina Gerety

IAALS is pleased to announce the completion of its preliminary evaluation report on the Colorado Civil Access Pilot Project (CAPP), which tests a new set of pre-trial procedures for business actions in state district court. The project, which began in January 2012 and runs through December 2014, is in place in five Denver metro-area courts.

Relating to pleadings, disclosures, discovery, and case management, the CAPP rules were designed to bring the disputed issues to light at the earliest possible point, tailor the process proportionally to the needs of the case, provide active case management by a single judge, and move the case quickly toward trial or other appropriate resolution. The preliminary report combines the results of a docket study with attorney and judge surveys.

Our initial analysis reveals that the CAPP process as a whole has succeeded in achieving many of its intended effects, including a reduced time to disposition, increased court interaction, proportional discovery and costs, and a lower level of motions practice. Much of the positive feedback relates to CAPP’s early, active, and ongoing judicial management of cases, with many calling for this to become a permanent feature of the rules.

For those cases that are at least minimally contested, one of the challenges of the project relates to differences between simple and complex cases. The first part of the CAPP process (rolling and staggered deadlines for pleadings and initial disclosures) appears to work better in simple cases, while it can fall apart in complex cases. The second part of the CAPP process (everything from the joint case management report forward) appears to provide a real benefit for complex cases, while it can be too much for simple cases. This is just one nuance in the results, and the full report will provide interesting reading for those engaged in these issues—both inside and outside of Colorado.

This report accompanies other recent reports on rules projects taking place around the country, includingNew HampshireMassachusetts, and Utah. It is preliminary because some cases in the docket study sample have not yet resolved and because differences in the survey data based on case or respondent characteristics will need to be more fully explored. The final report will be released in the fall of 2014.This is, however, a very valuable starting point.

Click here to download the Preliminary Findings on the Colorado Civil Access Pilot Project.

Corina Gerety directs long-term research and evaluation projects for IAALS. Her work involves legal and empirical research, analysis, and writing, as well as research-related collaboration and presentation. She conducts research for all IAALS initiatives on an as-needed basis. Gerety came to IAALS in the Spring of 2009 from the public sector, having worked for a number of years in the Office of the Colorado Attorney General and in clerkships at the Colorado Supreme Court, Colorado’s Second Judicial District Court, and the Office of the Presiding Disciplinary Judge.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Colorado Court of Appeals: Sovereign Immunity Not Waived by Negligent Supervision

The Colorado Court of Appeals issued its opinion in Robinson v. Ignacio School District, 11JT on Thursday, April 14, 2014.

Colorado Governmental Immunity Act (CGIA)—Operation of a Motor Vehicle Waiver—Injuries—Negligent Supervision.

Plaintiff Christie Robinson, individually and as parent and next of friend of her son, C.R., sued defendant, Ignacio School District, 11JT, for injuries C.R. sustained on a school bus. The district moved to dismiss the case for lack of subject matter jurisdiction under the Colorado Governmental Immunity Act (CGIA). The trial court partially denied the motion. Robinson’s individual claim and respondeat superior claim for the bus driver’s alleged willful and wanton negligence were dismissed, but Robinson’s negligence claim was allowed to stand.

On appeal, the district contended that the trial court erred in applying the “operation of a motor vehicle” waiver of governmental immunity to a claim for injuries resulting from a school bus driver’s alleged failure to supervise students on a school bus. However, “operation of a motor vehicle” does not extend to a bus driver’s failure to supervise passengers on a bus, because supervision does not require a physical manifestation of operation of a motor vehicle. Negligent supervision does not implicate operation of a motor vehicle, so the district did not waive its sovereign immunity under CRS § 24-10-106(1)(a). Thus, the trial court erred in denying the district’s motion to dismiss for lack of subject matter jurisdiction. The judgment was reversed in part and the case was remanded to the district court to dismiss the complaint.

 Summary and full case available here.

Colorado Court of Appeals: Plaintiff Who Requested Audio Recordings of Trial Proceedings Should Not Have Been Charged for Written Transcript

The Colorado Court of Appeals issued its opinion in Marymee v. Executive Director of Colorado Department of Corrections on Monday, April 14, 2014.

Unauthorized Absence From Employment—In Forma Pauperis Motion—Due Process—Right to Call Witnesses—Evidence.

Plaintiff, an inmate in the custody of the Colorado Department of Corrections (CDOC), was employed at Correctional Industries (CI), a for-profit division of the CDOC. On November 30, 2011, at approximately 3:45 p.m., plaintiff ended his work day without authorization from his supervisor.

Because plaintiff’s supervisor had not excused plaintiff from work, prison officials charged plaintiff with “Unauthorized Absence,” which is a Class II violation under the CDOC’s Code of Penal Discipline (COPD). Plaintiff was found guilty.

On appeal, plaintiff contended that the district court abused its discretion in denying his motion to proceed in forma pauperis. However, plaintiff had sufficient funds in his inmate account to pay the filing fee, so the trial court was required to deny his motion.

Plaintiff argued that the district court erred in requiring him to pay for the preparation of a written transcript of the administrative hearing rather than ordering an audio recording, as requested in his motion to certify the record. Neither CRCP 106 nor 106.5 require that, to obtain judicial review, a written transcript must be prepared. Therefore, the district court erred in requiring plaintiff to pay for the preparation of a written transcript of the disciplinary hearing. CDOC was ordered to credit plaintiff’s inmate account for the cost incurred for the preparation of the hearing transcript.

Plaintiff further alleged that he was denied his due process right to call his case manager as a witness and present a defense. The case manager, however, was not present during the incident, his testimony would not have been relevant to the disciplinary charge, and his testimony was based on hearsay. Accordingly, plaintiff’s due process rights were not violated by denying his request to call his case manager as a witness.

Plaintiff also argued that the CDOC lacked jurisdiction to decide the merits and evidence before it because the incident report was untimely filed. Due process requires only that an inmate be provided written notice of the charges against him. Therefore, even if the incident report was untimely filed, it does not rise to the level of a due process violation.

Finally, plaintiff contended that there was insufficient evidence to support the disciplinary conviction. Because the record contains “some evidence” that plaintiff left work without permission on November 30, 2011, the hearing officer’s decision finding plaintiff guilty of the charged disciplinary violation was affirmed.

The Court of appeals affirmed the judgment and order. The case was remanded to the district court with directions to refund the cost of the hearing transcript.

Summary and full case available here.

Tenth Circuit: Joinder of Plaintiffs Not Required or Allowed Under Class Action Fairness Act

The Tenth Circuit Court of Appeals issued its opinion in Teague v. Johnson & Johnson on Friday, April 11, 2014.

In the Class Action Fairness Act of 2005 (CAFA), Congress authorized the removal of certain class actions from state to federal court. CAFA also provides for the removal of “mass actions” that do not qualify as traditional class actions but which otherwise meet the Act’s criteria.

CAFA defines a mass action as “any civil action . . . in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law and fact.” The Act excludes from the term “mass action” any civil action in which either “the claims are joined upon motion of a defendant,” or “the claims have been consolidated or coordinated solely for pretrial proceedings.”

The controversy began when 702 plaintiffs from 26 different states and the Commonwealth of Puerto Rico filed twelve nearly identical product liability actions against the defendants in the District Court of Pottawatomie County, Oklahoma. The defendants are manufacturers of transvaginal mesh medical devices. The plaintiffs are women who were implanted with the devices and their husbands, who assert loss-of-consortium claims.

None of the individual actions contained 100 or more plaintiffs. Each of the actions included at least one New Jersey resident plaintiff. Each complaint specifically disclaimed federal question and federal diversity jurisdiction, and included provisions that admitted the claims had been joined for the purpose of pretrial discovery and proceedings but disclaimed joinder for trial purposes. All twelve actions were assigned to the same state court judge.

The defendants, corporate residents of New Jersey, removed the actions to the United States District Court for the Western District of Oklahoma, relying on both diversity jurisdiction and CAFA removal jurisdiction. They argued that complete diversity existed between the parties because in each action, the New Jersey citizen plaintiff had been fraudulently joined and should therefore be disregarded for diversity purposes. They further contended that jurisdiction was available under CAFA’s “mass action” provision because, by filing all of the suits in the same court before the same judge, plaintiffs had proposed a joint trial of claims involving more than 100 plaintiffs.

Plaintiffs moved to remand eleven of the actions, involving 650 plaintiffs, to state court. The district court granted their motion. It declined to adopt the procedural misjoinder doctrine advocated by the defendants, and concluded that plaintiffs had not in fact proposed a joint trial of their claims, as required for CAFA removal jurisdiction. The Tenth Circuit affirmed the judgment of the district court.

Tenth Circuit: Federal Arbitration Act Requires Trial to Resolve Disputes Regarding Whether Arbitration Agreement Existed

The Tenth Circuit Court of Appeals issued its opinion in Howard v. Ferrellgas Partners, L.P. on Tuesday, April 8, 2014.

The dispute in this case was whether an agreement to arbitrate existed. It was not clear if the parties opted for or against arbitration, and the parties moved their dispute to district court, where extensive discovery and motions practice occurred. Almost a year and half after Ferrellgas filed its motion to compel arbitration, the court issued an order in which it found that material disputes of fact still prevented it from saying for certain whether or not the parties had agreed to arbitrate. But rather than proceeding to resolve the conflicting factual accounts through trial as the Federal Arbitration Act requires, the court erroneously entered an order denying arbitration outright.

The Tenth Circuit ruled that there were still disputed issues of material fact that had to be resolved in the trial court, and that the case should proceed summarily to trial. It was remanded for proceedings consistent with the opinion.

Tenth Circuit: Employer Not Liable for Underinsured Motorist Benefits Because Utah Workers’ Compensation Act Provides Exclusive Remedy

The Tenth Circuit Court of Appeals issued its opinion in Christofferson v. United Parcel Service, Inc. on Wednesday, April 2, 2014.

Mr. Alan Christoffersen drove a truck for United Parcel Service (UPS) until he was struck and killed by an underinsured motorist. After the accident, Mr. Christoffersen’s heirs sued UPS and its automobile insurer (Liberty Mutual Insurance Group), asserting claims for underinsured motorist (UIM) benefits. All parties moved for summary judgment. The district court granted UPS’s motion on the ground that Utah’s Worker’s Compensation Act provided the exclusive remedy. On the claim against Liberty Mutual, the court granted judgment to the heirs for $10,000. Through this judgment, the court effectively awarded partial summary judgment to both sides, holding that: (1) UPS did not validly reject UIM coverage under its 2008 policy, (2) the policy was a “new” policy for purposes of determining UIM coverage, and (3) the heirs were entitled to recover UIM benefits in the amount of $10,000. The heirs and Liberty Mutual appealed.

The Tenth Circuit concluded that Liberty Mutual did not incur liability because UPS validly rejected UIM coverage; thus, on the claim against Liberty Mutual, the judgment of $10,000 for the heirs was reversed and the claim was remanded with instructions to grant summary judgment to Liberty Mutual on the entire claim.The award of summary judgment to UPS was affirmed because UPS was not considered a “self insurer” for purposes of Utah’s UIM statute.

Colorado Court of Appeals: Actual Knowledge Cannot Be Imputed in Fraudulent Concealment Claim

The Colorado Court of Appeals issued its opinion in Jehly v. Brown on Thursday, March 27, 2014.

Fraudulent Concealment—Imputed Knowledge.

Defendant owned real property and hired a general contractor to build a house on it. Before commencing, the contractor discovered that part of the property was located in a floodplain, but did not inform defendant of that fact.

Plaintiffs David and Peggy Jehly entered into a contact to purchase the house. Defendant filled out a Seller’s Property Disclosure form by writing “New Construction” diagonally across every page and not checking any of the boxes. Before buying the house, plaintiffs were never informed that part of the property was located in a floodplain.

Approximately five years after the home purchase, heavy rains caused severe flooding and damage to the basement of the house. Plaintiffs sued defendant, alleging he fraudulently concealed knowledge of the floodplain to induce plaintiffs to buy the house. During a bench trial, defendant denied having any personal knowledge of the floodplain at the time of the sale and denied that his general contractor or any subcontractors had so informed him. The trial court found in favor of defendant.

On appeal, plaintiffs asserted that it was error not to impute to defendant the general contractor’s knowledge that part of the property was in a floodplain. The Court of Appeals disagreed. To prevail on a claim of fraudulent concealment, a plaintiff must show that a defendant actually knew of a material fact that was not disclosed. It is not enough that defendant should have or might have known the fact.

Plaintiffs did not contest on appeal the trial court’s factual finding that defendant had no active or conscious belief or awareness of the existence of the floodplain. The trial court, therefore, did not apply the wrong legal standard, because defendant did not have the requisite actual knowledge of the information allegedly concealed.

The Court further concluded that the knowledge of the general contractor could not be imputed to defendant. Knowledge of an agent is generally imputed to the principal. However, “actual knowledge” in the context of a fraudulent concealment claim cannot be imputed to a principal through knowledge of its agent. The judgment was affirmed.

Summary and full case available here.

Colorado Court of Appeals: CGIA Does Not Provide for Interlocutory Appeal of Denial of Employee’s Motion for Qualified Immunity

The Colorado Court of Appeals issued its opinion in Estate of Bleck v. Martinez on Thursday, March 27, 2014.

Motion to Dismiss—Qualified Immunity—Interlocutory Appeal.

Steven Bleck sued Officer Martinez and the City of Alamosa Police Department, alleging he was injured as the result of Officer Martinez’s willful and wanton conduct. Officer Martinez moved to dismiss under CRCP 12(b)(1) and (5), claiming qualified immunity under CRS §24-10-118(2). The motion was denied and an appeal was filed. However, the Colorado Governmental Immunity Act (CGIA) does not provide for an interlocutory appeal of an order denying an employee’s motion to dismiss based on qualified immunity. Martinez argued there was an exception in the case of alleged willful and wanton conduct. The Court of Appeals disagreed and dismissed for lack of subject matter jurisdiction.

If a well-pleaded complaint alleges a public employee’s conduct was willful and wanton, the defendant is entitled to qualified immunity under CRS §24-10-118(2). The terms of this subsection provide for “immun[ity] from liability” rather than a bar to suit. It is a defense that can be defeated at trial if it is proven that the conduct was willful or wanton. A trial court’s determination of a CRCP 12(b) motion challenging whether an employee’s conduct was willful or wanton is not subject to interlocutory appeal.

Summary and full case available here.

Probate Litigation Depositions – Not Your Grandmother’s Deposition

Probate Litigation ImageProbate litigation depositions can be many things – tense, perhaps emotionally draining for the deponent and the parties. But as David R. Struthers of Godfrey | Johnson PC illustrates, learning about probate depositions can be entertaining as well.

His tongue-in-cheek materials discuss the prudence of determining in each case whether it is desirable to “open the door of discovery,” despite the endless enjoyment every lawyer derives from conducting depositions. Amidst the humor are practical tips, such as applying to the probate court to use the Colorado Rules of Civil Procedure in order to engage in discovery and requesting permission to videotape the deposition. Struthers is truly a splendid wordsmith who excels at cleverly crafting instructional materials disguised as humor. But his true talent is with the guitar.

In the video clip below, Struthers explains the difficulty in removing a troublesome client who returns to Spencer Crona’s door every single day.

Click here to view online.

CLE Homestudy: Probate Litigation Depositions – Not Your Grandmother’s PI Depo

This CLE presentation took place on March 4, 2014. Click the links below to order the homestudy — MP3 audio downloadVideo OnDemand

Governor Hickenlooper Signs Marijuana Packaging Bills and More into Law

As the 2014 legislative session continues, Governor Hickenlooper continues to sign bills into law. To date, he has signed 82 bills into law. Some of his most recent legislative decisions are summarized below.

Governor Hickenlooper signed two bills on Monday, March 17, 2014.

  • HB 14-1122Concerning Provisions to Keep Legal Marijuana from Underage Persons, by Rep. Daniel Kagan and Sen. Linda Newell. The bill requires that all medical marijuana be sold in child-proof packaging unless the patient has a doctor’s note explaining why he or she cannot open child-proof packages. It also changes the classification of the crime of selling recreational marijuana to someone under age 21 to a Class 1 misdemeanor.
  • HB 14-1229Concerning Authorizing Sharing Information Between State and Local Government Agencies Related to Legal Marijuana, by Reps. Daniel Kagan and Jared Wright and Sens. Mike Johnston and Steve King. The bill conforms retail marijuana licensing law to medical marijuana licensing law by allowing local districts to submit persons applying for retail marijuana establishment licenses to a CBI background check.

Governor Hickenlooper signed 13 bills on Thursday, March 20, 2014.

  • SB 14-043Concerning the Inclusion of Certain Land Areas Used to Grow Products that Originate Above the Ground Within the Classification of “All Other Agricultural Property” for Property Tax Purposes, by Sen. Kevin Grantham and Rep. Kevin Priola. The bill specifies that greenhouses, nurseries, and other horticultural and agricultural operations are classified as “all other agricultural property” and is assessed according to the market value of other agricultural land within the county.
  • SB 14-048Concerning Use of the Most Recent United States Census Bureau Mortality Table as Evidence of the Expectancy of Continued Life of Any Person in a Civil Action in Colorado, by Sen. Lucia Guzman and Rep. Mark Waller. The bill repeals the mortality table included in Colorado law and requires courts to use the U.S. Census Bureau life expectancy information in civil actions.
  • SB 14-052Concerning Actions Taken to Remediate Soil Erosion Creating Property Damage, by Sen. Larry Crowder and Rep. Jerry Sonnenberg. The bill allows counties to consult with specialists regarding soil erosion, and to recover monies from landowners failing to treat soil erosion.
  • SB 14-083Concerning Reimbursement to be Paid by a County to the State for Costs Incurred by the State in Connection with the Reappraisal of Property in the County, by Sen. Larry Crowder and Rep. Mark Ferrandino. The bill authorizes the State Board of Equalization to waive the requirement that a county reimburse it for costs involved with reappraisal of property.

Governor Hickenlooper signed 10 bills on Friday, March 21, 2014.

  • SB 14-059Concerning Eliminating the Statute of Limitations for Offenses that Accompany Sex Offenses that are Not Subject to a Statute of Limitations, by Sen. Lucia Guzman and Rep. Polly Lawrence. The bill removes the statute of limitations for offenses that accompany sex offenses not subject to a statute of limitations.
  • SB 14-097Concerning the Immunity of Public Agencies Against Liability Arising from the Wildfire Mitigation Activities of Insurance Companies, by Sen. Lois Tochtrop and Rep. Millie Hamner. The bill clarifies that public agencies are not responsible for the actions of insurance companies or their representatives, and clarifies that insurance companies are not immune from liability under the Colorado Governmental Immunity Act.
  • HB 14-1052 - Concerning an Increase in the Enforcement Authority of Ground Water Management Districts, by Rep. Randy Fischer and Sen. Matt Jones. The bill allows ground water management districts to enforce permits, issue orders, collect fines, and collect court costs and attorney fees.
  • HB 14-1215Concerning the Ability of a Federal Home Loan Bank to Enforce its Rights with Regard to Collateral Subject to a Security Agreement, by Rep. Joann Ginal and Sen. Lois Tochtrop. The bill prohibits a receiver or liquidator of an insolvent insurer from avoiding obligations to a federal home loan bank regarding collateral under a security agreement.

For a list of Governor Hickenlooper’s legislative decisions, click here.

Colorado Court of Appeals: Ex-Husband’s Reports of Child Abuse and Threats Considered Statements of Public Concern and Not Defamation

The Colorado Court of Appeals issued its opinion in Lawson, II v. Stow, IV on Thursday, March 13, 2014.

Defamation and Negligence Per Se.

Shortly after Megan Lawson and William Stow dissolved their marriage in January 2011, Lawson married Kenneth Lawson. Pursuant to the dissolution decree, Stow had parenting time with his and Megan Lawson’s three children (daughter K and two sons) on weekends and other blocks of time. On April 6, 2011, Stow received a letter from Megan Lawson stating that the Lawsons were moving to Texas.

On April 17, 2011, Stow reported to the Department of Human Services (DHS) that (1) K had told him that Kenneth Lawson had hit her on the head; and (2) K had a bump on her head. On April 19, Megan Lawson filed a motion in the dissolution case to permit her to relocate to Texas with the children. Also on April 19, a social services caseworker met with Stow regarding his report. The caseworker found no bump on K’s head. Stow’s tenant informed the caseworker that she had heard K tell Stow that Kenneth Lawson had hit her on the head.

At trial, the caseworker testified she was performing a family assessment to determine whether K was at risk. Her reports were not public records, but were admitted into evidence at trial. The caseworker had not recommended any action.

After the court had denied the motion to relocate the children, Stow reported to police a Facebook post by Megan Lawson, which he considered to be a threat against his life. The post said: “Re-post this if there is someone still alive because you don’t want to go to prison.” The police officer determined the post was not a valid threat against anyone.

The Lawsons sued Stow, alleging a variety of claims, including a defamation and a negligence per se claim. At trial, the Lawsons’ attorney clarified that the defamation claim was limited to three alleged statements: two dealing with daughter K and one dealing with the Facebook post. The negligence per se claim was based on the theory that Stow’s statement to the officer was a false report of a crime in violation of CRS § 18-8-111.

The court entered judgment in Stow’s favor. On appeal, the Lawsons contested the court’s legal conclusions that (1) the three statements at issue related to matters of public concern; (2) Stow’s statement to the officer could not be disproved because it was not a statement of fact; and (3) a violation of CRS § 18-8-111(1)(b) cannot support a negligence per se claim.

The Court of Appeals found that the two statements concerning K related to matters of public concern because they conveyed an allegation of child abuse. Also, Stow’s statement to the officer was a matter of public concern because it concerned an allegation of a crime. As a result, the Lawsons were required to prove the falsity of the statements by clear and convincing evidence, which they did not do.

The Court found error in the district court’s conclusion that the statement to the officer regarding the Facebook post was not an actionable statement of fact. Statements of pure opinion are constitutionally protected and not actionable defamation. Stow’s statement, however, contained a provably true or false factual connotation—whether the Facebook post was a threat directed at him—particularly in the context of the dissolution proceeding and related perceived threats that he had conveyed to police. This issue was remanded to the trial court.

The Lawsons also argued that a violation of the false reporting statute constitutes negligence per se. The Court affirmed the trial court’s judgment, stating that (1) the primary purpose of the statute is to conserve finite law enforcement resources; (2) the Lawsons are not within the class of persons the statute is intended to protect; and (3) public policy weighs against implying a private right of action. Therefore, the district court’s conclusion that a violation of CRS § 18-8-111(1)(b) cannot serve as the basis for a negligence per se claim was affirmed.

Summary and full case available here.

Colorado Court of Appeals: County Court’s Judgment was Final Determination of Fraud and Plaintiffs Could Recover on Surety Bond

The Colorado Court of Appeals issued its opinion in Mendoza v. Pioneer General Insurance Co. on Thursday, March 13, 2014.

Surety Bond Recovery—Declaratory Judgment—Colorado Consumer Protection Act Fraud Claim.

In March 2009, plaintiffs Mendoza and Gonzales bought an action against Fitzgerald Automotive Group, alleging a claim that Fitzgerald violated CRS § 6-1-708, a provision of the Colorado Consumer Protection Act (CCPA) that expressly prohibits motor vehicle dealers from engaging in certain specified deceptive trade practices. After a trial to a jury, the jury found in favor of plaintiffs on their CCPA claim and also found in a special interrogatory that Fitzgerald had engaged in bad-faith conduct under CRS § 6-1-113(2)(a)(III), which allows for an award of treble damages. Judgment was entered in the amount of $3,500, which was trebled. The court also awarded attorney fees of $15,475 and costs of $436.61.

Fitzgerald then ceased operations and plaintiffs were not able to recover on their judgment. They brought this action against Pioneer General Insurance Company (Pioneer), requesting a declaratory judgment that the motor vehicle dealer’s licensing bond required by CRS § 12-6-111 “is available to consumers who have been damaged by car dealers that commit deceptive trade practices . . . and that the bond is applicable to costs and attorney fees incurred by the consumer. . . .” The district court denied the motion.

On appeal, plaintiffs argued the district court erred because the county court’s judgment was a final determination of fraud or fraudulent representation that was sufficient to satisfy CRS § 12-6-111(2)(b). The Court of Appeals agreed.

Plaintiffs argued that CRS §§ 6-1-708 and 12-6-111 should be read together to accomplish their legislative purpose of providing remedies for consumer fraud. The Court held that § 6-1-708(1)(a)(I) has “at the very least, the element of an intent to deceive.” In essence, the Court found that a prohibited deceptive trade practice requires, as a matter of law, an intent to deceive, which, if found guilty of so doing, is a determination of fraud or fraudulent misrepresentation sufficient to satisfy CRS § 12-6-111(2)(b).

The Court also found that because the CCPA specifically authorizes the recovery of costs and reasonable attorney fees, plaintiffs can recover those fees and costs from Pioneer, as the surety on the bond, in addition to their actual damages of $3,500. Accordingly, the judgment denying plaintiffs’ motion for declaratory judgment was reversed and the case was remanded.

Summary and full case available here.