     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
                                                              March 26, 2020

                                2020COA53

No. 19CA298, Martinez v. LHM Corporation — Colorado
Consumer Protection Act — Attorney Fees; Appeals — Final
Appealable Order

     In this proceeding, a division of the court of appeals considers

whether attorney fees awarded under section 6-1-113(2)(b), C.R.S.

2019, of the Colorado Consumer Protection Act (CCPA) are costs or

damages for the purposes of determining the finality of a judgment

being appealed. The division concludes that, because section 6-1-

113(2) shifts fees and costs to a violator, attorney fees under the

CCPA are more akin to costs than to damages. Accordingly, we

conclude that the district court’s March 20, 2018, order was a final,

appealable order and that appellant LHM Corporation did not timely

appeal that order. And, because LHM did not substantively

challenge the district court’s award of attorney fees, we affirm the

district court’s December 28, 2018, order.
COLORADO COURT OF APPEALS                                    2020COA53


Court of Appeals No. 19CA0298
Adams County District Court No. 17CV30099
Honorable Douglas R. Vannoy, Judge
Honorable Jaclyn C. Brown, Judge


Canuto John Martinez,

Plaintiff-Appellee,

v.

LHM Corporation, TCD, d/b/a Larry H. Miller Chrysler Dodge Jeep Ram 104th,

Defendant-Appellant.


                         APPEAL DISMISSED IN PART
                           AND ORDER AFFIRMED

                                  Division VII
                            Opinion by JUDGE FOX
                        Berger and Lipinsky, JJ., concur

                          Announced March 26, 2020


The Wynkoop Law Office, PLLC, Richard B. Wynkoop, Susan G. Thomas,
Wheat Ridge, Colorado; Law Firm of Brian DeBauche, LLC, Brian DeBauche,
Denver, Colorado, for Plaintiff-Appellee.

Fairfield and Woods, P.C., Michael J. Dommermuth, Lee Katherine Goldstein,
Adrian P. Castro, Denver, Colorado, for Defendant-Appellant.
¶1    Plaintiff Canuto John Martinez alleges that a car dealership

 violated the Colorado Consumer Protection Act (CCPA). The

 dealership, LHM Corporation (LHM), appeals the district court’s

 determinations that (1) attorney fees awarded under the CCPA are

 costs — not damages — for the purposes of determining the finality

 of a judgment being appealed; and (2) Martinez satisfied the public

 impact element of his CCPA claim. We dismiss LHM’s appeal of the

 second issue as untimely and affirm the award of attorney fees.

                           I.   Background

¶2    This case involves a rescinded car sale. On November 12,

 2016, Martinez paid $700 down and traded in his 2012 Dodge

 Journey (the 2012 Journey) to acquire a 2016 Dodge Durango (the

 2016 Durango) from LHM. Martinez purchased the Journey in

 2012 with financing from Ally Financial (Ally).

¶3    With LHM’s help, Martinez applied for financing with Ally for

 the 2016 Durango. Ally conditionally approved Martinez for a loan,

 and Martinez signed multiple agreements with LHM, including a

 Spot Delivery Agreement that allowed Martinez to take the 2016

 Durango without confirmed financing. When Martinez asked about

 the status of his financing, LHM assured him that Ally had


                                   1
 approved his application. Martinez left the dealership with the

 2016 Durango believing that he had purchased the vehicle.

¶4    Later that day, LHM received a notice of adverse credit action

 that stated Ally had not approved Martinez’s financing. Ally did not

 send this notice to Martinez. From November 12 to 29, LHM

 negotiated with Ally to obtain financing for Martinez. Despite

 repeatedly discussing the loan with Ally and submitting a “funding

 package,” LHM was unable to secure the financing. LHM did not

 inform Martinez of Ally’s decision during this period.1 Despite

 Martinez’s lack of financing for the 2016 Durango, LHM sold the

 2012 Journey on November 22 and did not apply any funds from

 that sale toward Martinez’s existing car loan with Ally for the 2012

 Journey.

¶5    After Martinez was unable to make payments for the 2016

 Durango on Ally’s website, he returned to the dealership on

 December 26. Bill Spratte, LHM’s financial manager, explained that

 holiday turnover had resulted in delays. LHM renewed Martinez’s

 application with Ally that day, but Ally again denied the application


 1Ally sent Martinez a notice of its decision to decline his loan
 application on December 3, but Martinez did not read it.

                                    2
 because payments on Martinez’s loan for the 2012 Journey were

 three months past due. LHM attempted again — without success

 — to get Ally to approve the loan on January 7, 2017.

¶6    On January 9, Martinez demanded that LHM cancel the sale of

 the 2016 Durango and return the 2012 Journey to him. Spratte

 told Martinez that LHM still had the 2012 Journey even though

 LHM had sold the vehicle in November. LHM’s General Manager,

 Brent Wood, met with Martinez and his wife to assure them that

 LHM would resolve the issue and asked them to return the next

 day. Instead of returning, Martinez filed this lawsuit the following

 day, alleging, among other things, that LHM violated CCPA section

 6-1-708(1)(a), C.R.S. 2019, by misrepresenting that Ally had agreed

 to finance Martinez’s purchase of the 2016 Durango and by selling

 the 2012 Journey without approved financing for Martinez’s

 purchase.2

¶7    LHM later received a loan offer for Martinez from a third-party

 lender, and LHM sought to negotiate a new contract for the 2016


 2Martinez also brought claims for negligence per se, civil theft,
 conversion, unjust enrichment, and violations of the Equal Credit
 Opportunity and Truth in Lending Acts. He prevailed only on his
 Colorado Consumer Protection Act claim.

                                   3
 Durango with new financing terms. Martinez rejected the offer. On

 February 2, LHM paid Ally the delinquent balance on the loan for

 the 2012 Journey and asked Ally to notify credit agencies to remove

 the late payments from Martinez’s credit report. LHM also wrote its

 own letters to Equifax, Experion, and TransUnion asking them to

 do the same. On February 27, LHM refunded Martinez’s $700

 down payment, and Martinez returned the 2016 Durango in

 exchange for the 2012 Journey, which LHM had reacquired.

¶8    The parties proceeded to a bench trial, and the district court

 ruled, on March 20, 2018, that LHM violated the CCPA and

 awarded Martinez $9900 in damages.3 The district court also

 ordered LHM to pay Martinez’s attorney fees arising from the CCPA

 claim pursuant to section 6-1-113(2)(b), C.R.S. 2019, though it did

 not then determine the amount of attorney fees owed. The court’s

 order clearly states that “as the prevailing party on the [CCPA

 claim,] Plaintiff is entitled to recover from Defendant his costs and

 the reasonable attorney fees that he incurred in prosecuting” that

 claim. Martinez filed a motion for attorney fees on April 10, and on


 3The court’s order is dated March 19, 2018, but the order was not
 docketed until March 20, 2018.

                                    4
  June 1, LHM asked the district court to stay collection of damages

  until after the court determined the amount of attorney fees.

  Specifically, LHM asserted that the district court’s order was not

  final until the court determined the fees and costs owed. The

  district court denied the stay in large part because it concluded that

  its March 20, 2018, judgment was a final, appealable order.

¶9           On December 28, 2018, the district court awarded Martinez

  $51,232.50 in attorney fees. LHM now appeals.

       II.     Timeliness of LHM’s Appeal of the March 20, 2018, Order

¶ 10         Martinez argues that LHM’s appeal is untimely and should be

  dismissed. Specifically, Martinez argues that attorney fees under

  the CCPA are costs, not damages, and thus the district court’s

  March 20, 2018, order was final for the purpose of appeal. Further,

  Martinez argues that, because LHM did not file this appeal until

  after the district court determined the amount of attorney fees due

  on December 28, 2018, its appeal is untimely. We agree.

                                A.   Preservation

¶ 11         Martinez argues that LHM failed to preserve its argument

  regarding CCPA attorney fees for appeal. We need not address




                                        5
  preservation because, assuming LHM’s arguments are preserved,

  it’s appeal from the March 20, 2018, order is untimely.

              B.   Applicable Law and Standard of Review

¶ 12   Generally, this court has jurisdiction to review only final

  judgments from the district court. § 13-4-102, C.R.S. 2019; C.A.R.

  1(a). “[A] decision on the merits is a final judgment for appeal

  purposes despite any outstanding issue of attorney fees . . . .”

  Baldwin v. Bright Mortg. Co., 757 P.2d 1072, 1074 (Colo. 1988). In

  Baldwin, the Colorado Supreme Court held that an order

  dismissing the defendants’ third-party claim and awarding attorney

  fees against them for bringing a frivolous action was final and

  appealable, even though the district court had not yet determined

  the amount of the attorney fees award. Id.

¶ 13   However, when attorney fees are “damages” awarded “as part

  of the substance of a lawsuit” — as opposed to “costs” awarded to a

  prevailing party under a fee shifting provision — a trial court’s order

  is not final until the court has determined the amount of the

  attorney fees award. Ferrell v. Glenwood Brokers, Ltd., 848 P.2d

  936, 941-42 (Colo. 1993); see also Guarantee Tr. Life Ins. Co. v.

  Estate of Casper, 2018 CO 43, ¶¶ 22-25, 28 (holding that attorney


                                    6
  fees for denial of an insurance claim were “actual damages”

  recoverable as a consequence of the suit, rather than a penalty

  assessed against the losing party in the suit, and thus the fees had

  to be fully resolved before the order was final for purposes of

  appeal); Hall v. Am. Standard Ins. Co. of Wis., 2012 COA 201, ¶¶

  2-4, 12-21 (same).

¶ 14   In contrast, “when a statute provides for an award of attorney

  fees to a prevailing party, an appeal on the merits proceeds

  separately from an appeal of an award of attorney fees.” Hall, ¶ 13.

  Thus, an order under a “prevailing party” statute that resolves the

  merits of the claim is final and appealable despite an outstanding

  issue involving attorney fees. See Baldwin, 757 P.2d at 1072-74;

  see also Madison Capital Co. v. Star Acquisition VIII, 214 P.3d 557,

  560 (Colo. App. 2009) (citing Baldwin and holding that a contempt

  order was final and appealable before the amount of the attorney

  fees that were awarded as part of the sanction was finally

  determined).

¶ 15   Failure to timely file a notice of appeal deprives an appellate

  court of jurisdiction and precludes any review of the merits. Matter

  of Estate of Anderson, 727 P.2d 867, 869 (Colo. App. 1986). An


                                     7
  appellant must file a notice of appeal “within 49 days of the date of

  the entry of judgment, decree, or order from which the party

  appeals.” C.A.R. 4(a). We may extend the deadline by thirty-five

  days if the appellant can demonstrate excusable neglect. Id.

¶ 16   We review de novo questions of statutory interpretation. Hall,

  ¶ 19. “[W]hen the statutory language is clear and unambiguous, we

  need not look beyond its plain terms and must apply the statute as

  written.” Id. (citing Kyle W. Larson Enters., Inc. v. Allstate Ins. Co.,

  2012 COA 160M, ¶ 10).

                               III.   Analysis

¶ 17   Section 6-1-113(2), under which the district court awarded

  attorney fees, provides as follows:

             Except in a class action or a case brought for a
             violation of section 6-1-709, and
             notwithstanding any other law, any person
             who, in a private civil action, is found to have
             engaged in or caused another to engage in any
             deceptive trade practice listed in this article 1
             is liable in an amount equal to the sum of:

             (a) The greater of:

             (I) The amount of actual damages sustained,
             including prejudgment interest of either eight
             percent per year or at the rate provided in
             section 13-21-101, whichever is greater, from



                                        8
             the date the claim under this article 1 accrued;
             or

             (II) Five hundred dollars; or

             (III) Three times the amount of actual damages
             sustained, if it is established by clear and
             convincing evidence that such person engaged
             in bad faith conduct; plus

             (b) In the case of any successful action to
             enforce said liability, the costs of the action
             together with reasonable attorney fees as
             determined by the court.

¶ 18   Subsection (2)(a) of section 6-1-113 identifies the damages for

  which a violator of the CCPA can be liable. Then, subsection (2)(b)

  of the statute awards costs and attorney fees to a prevailing

  plaintiff. See Hall, ¶ 20 (noting that prevailing party attorney fee

  provisions are typically contained in a separate subsection of the

  statute). The court’s March 20, 2018, order was final and triggered

  LHM’s time to appeal even though the district court had not yet

  resolved the amount of the attorney fee award under section 6-1-

  113(2)(b). See Baldwin, 757 P.2d at 1074; Madison Capital Co., 214

  P.3d at 560.

¶ 19   LHM argues that section 6-1-113(2)(b) is like the attorney fee

  provision of the Unfair Claims Act (UCA) discussed in Hall because,



                                      9
  like UCA section 10-3-1116(1), C.R.S. 2019, the CCPA addresses

  attorney fees in the same section that it addresses other damages.

  In support of that argument, LHM notes that section 6-1-113 is

  entitled “Damages.” But unlike section 10-3-1116(1), which lists

  attorney fees in the same sentence as it identifies other remedies,

  section 6-1-113(2) discusses attorney fees in a separate subsection

  — subsection (2)(b) — from its discussion of remedies generally in

  subsection (2)(a), and does so in connection with costs.

¶ 20   Section 6-1-113(2) is more similar in language and structure

  to section 24-34-402.5, C.R.S. 2019 — prohibiting employers from

  terminating employees for engaging in lawful activities during

  nonworking hours — which contains a prevailing plaintiff attorney

  fees provision. See Hall, ¶ 13. Section 24-34-402.5(2) reads as

  follows:

             (a) Notwithstanding any other provisions of
             this article, the sole remedy for any person
             claiming to be aggrieved by a discriminatory or
             unfair employment practice as defined in this
             section shall be as follows: He or she may
             bring a civil action for damages in any district
             court of competent jurisdiction and may sue
             for all wages and benefits that would have
             been due him or her up to and including the
             date of the judgment had the discriminatory or
             unfair employment practice not occurred;


                                    10
             except that nothing in this section shall be
             construed to relieve the person from the
             obligation to mitigate his or her damages.

             (b)(I) If the prevailing party in the civil action is
             the plaintiff, the court shall award the plaintiff
             court costs and a reasonable attorney fee.

  Like section 6-1-113(2), this statute addresses remedies and

  attorney fees within the same section, but in separate subsections.

  See Hall, ¶ 20; see also Butler v. Lembeck, 182 P.3d 1185, 1189-90

  (Colo. App. 2007) (treating attorney fees as costs where the lease

  shifted fees to the tenant).

¶ 21   LHM also argues that attorney fees are damages under the

  CCPA because they are a “legitimate consequence” of bringing a

  CCPA action. See Butler, 182 P.3d at 1189. However, deceptive

  trade practices under the CCPA are not actions that necessarily

  “involve [the] plaintiff in litigation with others.” See Int’l State Bank

  v. Trinidad Bean & Elevator Co., 79 Colo. 286, 287, 245 P. 489, 489

  (1926); see also John A. Criswell, The “Finality” of an Order When a

  Request for Attorney Fees Remains Outstanding, 43 Colo. Law. 41,

  41-42 (May 2014) (describing attorney fees considered damages as

  those a party incurs bringing or defending an action against a third

  party). Martinez engaged in litigation only with LHM.


                                      11
¶ 22   Because the CCPA essentially shifts fees and costs to the

  violator, attorney fees under the CCPA are more akin to costs than

  to damages, and the district court’s March 20, 2018, order was a

  final, appealable order. Because LHM did not file this appeal until

  February 15, 2019 — far more than forty-nine days after the district

  court’s final judgment on the merits — its appeal of that judgment

  is untimely. Given our disposition, we need not address LHM’s

  remaining arguments regarding the district court’s March 20, 2018,

  order.

                     IV.   December 28, 2018, Order

¶ 23   LHM’s appeal is timely as to the district court’s December 28,

  2018, order awarding Martinez $51,232.50 in attorney fees.

  Because LHM does not substantively challenge that order, we affirm

  the district court’s award of attorney fees.

                             V.   Conclusion

¶ 24   The appeal is dismissed in part, and the district court’s

  December 28, 2018, order is affirmed.

       JUDGE BERGER and JUDGE LIPINSKY concur.




                                    12
