July 18, 2019

Colorado Court of Appeals: Failure to File Timely Response to Summary Judgment Motion Precludes Reversal

The Colorado Court of Appeals issued its opinion in People v. Wunder on Thursday, March 24, 2016.

Colorado Consumer Protection Act—Injunctive Relief—Civil Penalties—Restitution—Subject Matter Jurisdiction—Victim’sResidences—Summary Judgment—Vague—Overly Broad—C.R.C.P. 65—Evidentiary Hearing.

Wunder operated Sea to Ski, LLC, a Colorado-based vacation and travel club. The Attorney General (AG) sued Wunder and related parties under the Colorado Consumer Protection Act (CCPA). The trial court granted the AG’s motion for summary judgment on whether Wunder had violated the CCPA. On motion of the AG and without holding a hearing, the court thereafter ordered injunctive relief, civil penalties, and restitution.

On appeal, Wunder contended that the money judgments and injunction were void because the district court lacked subject matter jurisdiction over CCPA violations committed against those Sea to Ski members who were nonresidents of Colorado. The CCPA itself does not limit the court’s jurisdiction based on the residency of the victims of deceptive trade practices, thus the court had subject matter jurisdiction.

Wunder also asserted that the district court erred when it granted summary judgment against him. The record established that the AG and district court complied with C.R.C.P. 56 and the AG was entitled to judgment as a matter of law, and Wunder did not timely respond to the AG’s motion. Therefore, the district court did not err in granting the motion.

Wunder further argued that because the initial injunction was defective, the court was prohibited from correcting the error and entering a later injunction conforming to C.R.C.P. 65. This was not a jurisdictional defect, and the corrected injunction complies with C.R.C.P. 65. Wunder also attacked the substance of the district court’s revised injunction, claiming that it is vague and overly broad. Paragraph 5 of the injunction does not define the term “vacation or travel related services or products,” thus it is vague and overly broad. The case was remanded for the trial court to reformulate that portion of the injunction.

Lastly, Wunder argued that the district court improperly calculated the civil penalty and restitution amounts. Because an evidentiary hearing was required before imposing civil penalties and restitution and the trial court failed to hold a hearing, the judgments were reversed and the case remanded for a hearing.

The judgment was affirmed in part and reversed in part, and the case was remanded.

Summary and full case available here, courtesy of The Colorado Lawyer.

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