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


                                                                   SUMMARY
                                                                 May 17, 2018

                                2018COA69

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

     A division of the court of appeals considers whether the

Colorado Consumer Protection Act (CCPA) and the Colorado Fair

Debt Collection Practices Act (CFDCPA) prohibit foreclosure

attorneys and title companies from billing mortgage servicer clients

foreclosure commitment charges when those full costs were not

actually incurred, despite knowing that these fraudulent costs

would be assessed against homeowners in foreclosure. The division

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


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


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

Plaintiffs-Appellees and Cross-Appellants,

v.

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

Defendants-Appellants and Cross-Appellees,


                      JUDGMENT AFFIRMED AND CASE
                       REMANDED WITH DIRECTIONS

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

                           Announced May 17, 2018


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

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


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

 address whether the Colorado Consumer Protection Act (CCPA) and

 the Colorado Fair Debt Collection Practices Act (CFDCPA) prohibit

 foreclosure attorneys and title companies from billing mortgage

 servicer clients foreclosure commitment charges when those full

 costs were not actually incurred, despite knowing that these

 fraudulent costs would be assessed against homeowners in

 foreclosure. We conclude that such a practice violates the CCPA

 and CFDCPA.

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

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

 Administrator, Uniform Consumer Credit Code, brought a civil law

 enforcement action against defendants, foreclosure lawyer Robert J.

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

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

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

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

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

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

 provided accounting and bookkeeping services for the law firms and


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

 their affiliated companies violated the CCPA and the CFDCPA by

 engaging in the billing practice described above. The district court

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

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

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

 and is not named as a party to this appeal.

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

 cross-appeal an evidentiary ruling.

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

 with directions.

                            I.      Background

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

 following facts and described the mechanics of the foreclosure

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

 description.

                       A.        Foreclosure Process

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

 lender to purchase real property signs a promissory note and an

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


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

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

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

 nonjudicial foreclosure proceeding, which can result in the public

 trustee’s eventual sale of the property.

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

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

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

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

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

 between 2008 and 2016, approximately half of the foreclosures filed

 in Colorado were withdrawn before sale.

                           B.   Cure Process

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

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

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

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

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

 necessary to cure the default, including missed payments, accrued

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


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

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

  costs. § 38-38-104(5).

                            C.     Bid Process

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

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

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

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

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

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

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

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

  includes the attorney fees and costs.

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

  total indebtedness to the lender, the lender may pursue the

  collection of the deficiency from the borrower through other

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

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

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

  those claims, by the borrower.


                                     4
            D.      Title Commitments In Foreclosure Actions

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

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

  foreclosure commitment is a title insurance product used to ensure

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

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

  policy upon the satisfaction of certain conditions. A foreclosure

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

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

  non-foreclosure title commitments, which usually expire six months

  after issuance.

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

  such as a foreclosure commitment. The underwriter sets forth

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

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

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

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

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

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




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

  the homeowner cures the deficiency by paying the asserted amount

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

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

  title company cannot issue a title insurance policy.

                           E.   The Defendants

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

  mortgage defaults, including residential foreclosures, in Colorado.

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

  as the Colorado Housing and Finance Authority, JPMorgan Chase,

  and Bank of America in foreclosure proceedings. The

  servicers-clients are not parties to this action.

¶ 16   Hopp owned several businesses which supported the law

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

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

  Safehaus owned a subsidiary which performed accounting and

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

  company, National Title, LLC, which provided foreclosure

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

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


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

  2009.

¶ 17   National Title and First National Title Residential were

  authorized to issue title commitments and policies through an

  underwriter, Fidelity National Title Insurance Company (Fidelity).

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

  charges for a foreclosure commitment:

       I-16 Foreclosure Commitment:

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

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

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



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

  ordered foreclosure commitments from Hopp’s title companies.

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

  schedule of basic rates upon the delivery of a foreclosure

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

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

  by billing and seeking reimbursement from them for the charge of

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

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

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

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

  cancelled.

                         F.    Procedural History

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

  plaintiffs filed a civil enforcement action. Their 2014 complaint

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

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

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

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

  here, is not materially different.


                                       8
¶ 20   The plaintiffs asserted the following claims:

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

            of the CCPA by making false or misleading statements

            concerning the price of services claimed for title search

            costs, title commitments, and court filing costs.

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

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

            misleading representations in connection with the

            collection of foreclosure-related debt.

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

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

            were not expressly authorized by the agreements

            borrowers had signed creating their debt, or permitted by

            law, and using unfair and unconscionable means to

            collect that debt.

  Plaintiffs sought a judgment against defendants for declaratory

  relief, injunctive relief, disgorgement of unjustly obtained proceeds,

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

  dismiss the action as untimely.




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

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

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

  arguments that plaintiffs’ claims were barred by the statute of

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

¶ 22   The district court concluded that defendants, with the

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

  foreclosure commitments ordered from the affiliated title

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

  misleading statements of fact concerning the price of foreclosure

  commitments by charging for and collecting policy premium

  amounts shortly after the initiation of the foreclosure proceeding

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

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

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

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

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

  representations in connection with the collection of homeowners’

  debt because they falsely represented the 110% policy premium

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


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

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

  servicers, knowing they would be ultimately charged to

  homeowners.

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

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

  deceptive trade practices when they collected a full title policy

  premium from servicers, but paid nothing — neither a policy

  premium nor a cancellation fee — when it ordered title

  commitments through a nonaffiliated title agency.

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

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

  trustworthy and reliable evidence that its calculations reasonably

  approximated the amount of defendants’ unjustly obtained gains.

¶ 26   The court entered a permanent injunction prohibiting Hopp,

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

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

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

  against homeowners in foreclosure a policy premium for a

  foreclosure commitment before that cost is actually incurred.” The


                                    11
  district court imposed penalties on defendants under the CCPA,

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

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

  under the CFDCPA. Upon consideration of defendants’ motion to

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

  reduced the penalties imposed under the CFDCPA to a total of

  $124,200. Because the statutory amendment allowing penalties

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

  the total penalty amount to include only transactions occurring

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

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

  court further awarded the State its reasonable costs and attorney

  fees incurred in enforcing the CCPA and CFDCPA. Defendants

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

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

  announced today.

                II.   Statute of Limitations for Penalties

¶ 27   Defendants contend the trial court erred by imposing penalties

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

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


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

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

  disagree.

           A.   Standard of Review and Statute of Limitations

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

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

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

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

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

                             B.    Background

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

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

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

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

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

  the violation. A separate section of the CFDCPA provides for

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

¶ 30   The trial court relied on analogous federal authority applying

  the federal Fair Debt Collection Practices Act, which limited the

  application of the comparable statute of limitations provision set


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

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

  because the administrator charged with enforcement of the

  CFDCPA is the administrator of the Uniform Consumer Credit Code

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

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

  governmental enforcement actions. The trial court rejected

  defendants’ alternate arguments that the one-year statute of

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

  because it was more general than any specific limitation provisions

  contained within the UCCC, which it concluded controlled here.

  Accordingly, the court denied defendants’ motion to dismiss the

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

  applicable statute of limitations for the CCPA and CFDCPA claims

  would be.

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

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

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

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

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


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

  limitations because the underlying conduct for the action occurred

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

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

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

  different grounds, and do not apply the UCCC.

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

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

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

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

  of legislative intent to the contrary, a statute of limitations

  specifically addressing a particular class of cases will control over a

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

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

¶ 33   Because the CCPA contains a statute of limitations specifically

  addressing cases brought under its provisions, the three-year

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

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

  2007) (“When choosing between statutes that govern limitation

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


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

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

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

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

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

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

  three-year period.

                              C.   CFDCPA

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

  limitations period for administrator actions from the date on which

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

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

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

  for government enforcement actions brought under the CFDCPA.

¶ 35   Defendants argue that the court should have applied the

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

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

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

  we are not persuaded that the legislature clearly intended this

  period to apply to government enforcement actions.


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

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

  limitation generally did not apply to actions brought by the

  government under the doctrine of nullum tempus occurrit regi, the

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

  absent an express statement by the legislature otherwise. See

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

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

  concluded that the doctrine of nullum tempus no longer applied in

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

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

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

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

  was also intended to apply to government actions. Id.

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

  accrues governs the time within which a civil action must be

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

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

  limitations applying to government enforcement actions at the times

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


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

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

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

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

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

  actions falling under either statute, a discovery rule applies.

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

  for fraud, misrepresentation, concealment, or deceit shall be

  considered to accrue on the date such fraud, misrepresentation,

  concealment, or deceit is discovered or should have been discovered

  by the exercise of reasonable diligence.”

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

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

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

  information provided by the law firms and National Title in response

  to investigative subpoenas regarding the types of title products

  defendants provided during foreclosure proceedings. Plaintiffs did

  not request or receive any information from First National Title

  Residential before filing their complaint in December 2014.

  Importantly, the trial court also found that defendants presented no


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

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

  discovery of defendants’ acts underlying the CFDCPA claims.

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

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

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

  not decide which catchall provision should have been applied to

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

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

  different grounds.

                 III.   Foreclosure Commitment Charges

¶ 40   Defendants contend the trial court erred when it concluded

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

  the schedule of basic rates for foreclosure commitment required by

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

  that the filed rate doctrine precludes a finding of liability for

  charging amounts which they contend were in compliance with

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

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

  Auto. Ass’n, 2014 COA 2, ¶ 62.


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

  the filed rate doctrine does not apply. Plaintiffs contend that

  defendants did not charge amounts in compliance with Fidelity’s

  filed rates for a foreclosure commitment because it required

  payment from the servicers for the amount chargeable for a title

  commitment resulting in the issuance of a title insurance policy,

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

  plaintiffs and the trial court.

                         A.    Standard of Review

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

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

  doctrine, de novo. Maxwell, ¶ 61.

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

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

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

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

  regulation together, interpreting the regulation as a whole.”

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

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

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


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

  Bd., 2015 COA 11M, ¶ 28.

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

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

  v. Brown, 2014 COA 39, ¶ 8.

                                 B.    Law

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

                              C.    Analysis

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

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

  servicers 110% of the basic rate for foreclosure commitments and

  including that same charge in bid and cure statements complied

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

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

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

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

  Colorado?”

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

  follows:

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



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

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

  applied only to a title commitment which resulted in the ultimate

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

  section I-16 limited the chargeable amount for a foreclosure

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

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

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

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

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

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

  trial court interpreted this language as confirmation that a

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

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

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

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

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

  2017, to

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


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

             ....

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

             [or]

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

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

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

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

¶ 50   Construing the regulations according to their plain language,

  we conclude that the regulations merely prohibit a title company

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

  unless title insurance coverage is issued within a reasonable time

  for which the scheduled rate is charged. This language further

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

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

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

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

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

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

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

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

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

¶ 52   Plaintiffs did not challenge the reasonableness or propriety of

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

  conclude that defendants were liable for charging rates for services

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

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

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

  not, in most cases, ultimately provide.

¶ 53   Defendants represented that they actually incurred the full

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

  schedule, when they invoiced servicers for that amount and listed

  that amount on cure statements and collected payments at that


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

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

  court further concluded that defendants knew that in most

  nonjudicial foreclosures, the foreclosure would be withdrawn prior

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

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

  by both sides at trial.

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

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

  advance for a foreclosure commitment. He further testified that

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

  responsibility to refund any amount received for a title insurance

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

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

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

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

  because they were given instructions from the servicer to withdraw

  the foreclosure filed with the public trustee.

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

  the cancellation process was at odds with the other evidence


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

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

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

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

  trust or escrow account because the funds were unearned

  premiums until a title policy was issued. While he acknowledged

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

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

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

  the agent was responsible for determining the status of the

  foreclosure through searching public records or communication

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

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

  cancellation fee to the client.

¶ 57   The vice president for title agency Fidelity National Title

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

  that when a foreclosure commitment was ordered, it was the

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

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

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


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

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

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

  was actually foreclosed and a policy was issued.

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

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

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

  had specifically requested the cancellation of the title commitment,

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

  minus the applicable cancellation fee. These contentions are

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

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

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

  contractually established cancellation fee.

¶ 59   Because the evidence presented at trial supported the trial

  court’s finding that defendants misrepresented the premium

  charges as actually incurred costs when they had only ordered title

  commitments, the trial court did not err.




                                    28
                       IV.   Knowingly/Bad Faith

¶ 60   Defendants contend the trial court erred when it concluded

  that they knowingly engaged in a deceptive trade practice. We

  disagree.

                        A.    Standard of Review

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

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

  unsupported by the record. Jehly, ¶ 8.

                                B.    Law

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

  defendant knowingly engaged in a deceptive trade practice. Crowe

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

  critical distinction between actionable CCPA claims and those

  sounding merely in negligence or contract. Gen. Steel Domestic

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

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

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

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

  the supreme court has addressed the intent requirement for a CCPA

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


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

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

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

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

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

  (1922)).

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

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

  People v. Wunder, 2016 COA 46, ¶ 49.

                                C.   Analysis

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

  was supported by the following evidence in the record:

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

               that Hopp acknowledged more than likely would never be

               issued.

              The law firms obtained reimbursement of full title policy

               premiums, even though Hopp acknowledged that a policy

               usually was not issued.




                                      30
           The law firms and the affiliated title companies worked

            together to overbill and fail to cancel foreclosure

            commitments for withdrawn foreclosures.

           The law firms and the title companies never cancelled

            foreclosure commitments, even when they knew a

            foreclosure had been withdrawn.

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

  good faith reliance on their reasonable interpretation that they were

  charging in accordance with Fidelity’s filed rates.

                     V.   Duplicative Civil Penalties

¶ 67   Defendants contend the trial court erred in imposing civil

  penalties under the CCPA and the CFDCPA for the same underlying

  acts. The complaint gave defendants sufficient notice that plaintiffs

  sought penalties under both statutes based upon the same

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

  trial court before it entered its order imposing penalties under both

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

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

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




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

  we decline to consider defendants’ argument.

                              VI.    Exhibit 103

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

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

  penalties against defendants. We reject this contention.

                         A.    Standard of Review

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

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

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

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

  Id.

                                    B.   Facts

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

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

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

  BlackKnight Financial Services, formerly LPS, prepared the

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

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

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


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

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

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

  the costs being billed using drop-down menus.

¶ 71   The director of software development at BlackKnight testified

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

  including the law firms, submitted an invoice into a mainframe

  application, which sent the data to its invoicing system,

  LoanSphere, for mortgage servicers to access. He testified that

  Exhibit 103 was a spreadsheet created from the production data

  from LoanSphere showing data submitted by the law firms. The

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

  numbers for the invoices; the invoice number assigned when the

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

  date the invoice was submitted into LoanSphere; the category and

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

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

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

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

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


                                   33
  representative entered the item price and category and subcategory

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

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

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

  judgment, the trial court noted that plaintiffs’ investigator used

  spreadsheets provided by LPS, including Exhibit 103, to determine

  what the law firms billed servicers for foreclosure commitments in

  2291 transactions which did not match a loan number where a

  policy was ultimately provided.

¶ 72   Addressing Exhibit 103, the court also indicated that

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

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

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

  related to entries in the spreadsheet designating a “check

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

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

  “comfortably relied on this exhibit in determining 2,291

  representations and calculating the penalties.”




                                      34
               C.    Business Record Exception to Hearsay

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

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

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

  inadmissible unless it falls within a statutory exception or an

  enumerated exception in CRE 803 or 804. CRE 802.

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

  record exception to the hearsay rule if the following conditions are

  met:

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

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

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

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

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


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

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

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

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

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

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

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

                              D.    Analysis

¶ 75   The trial court correctly concluded that the foundational

  requirements for admitting the spreadsheet as a business record

  had been met. The BlackKnight representative testified that the

  entries into the invoicing system were made at the time a

  representative of the law firms entered it into the mainframe

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

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

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

  which was representing loan servicers in foreclosure cases. It was

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

  through LPS and to retain those records.




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

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

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

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

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

                            VII. Exhibit 1093

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

  its discretion when it admitted defendants’ Exhibit 1093 to rebut

  plaintiffs’ Exhibit 104. We disagree.

                             A.   Background

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

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

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

  affiliated title companies. During discovery, defendants produced to

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

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

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

  premium from servicers, they paid nothing — neither a policy

  premium nor a cancellation fee — to LSI for title commitments

  ordered. Exhibit 104 reflected that LSI appeared to charge


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

  representative of a cancellation fee.

¶ 79   Plaintiffs amended their complaint to add claims against

  defendants for violating the CCPA and CFDCPA through its conduct

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

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

  invoices from title commitments ordered from LSI included the

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

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

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

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

  paid LSI nothing.

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

  testified that Exhibit 104 showed the charges due as of September

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

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

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

  operations department to amend numerous charges to $350, which

  appeared to be inconsistent with the invoices provided to the law

  firms.


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

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

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

  spreadsheet, Exhibit 1093, showed charges for full policy premiums

  rather than outstanding charges of $350, which were representative

  of cancellation fees. Plaintiffs objected to the admission of Exhibit

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

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

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

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

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

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

  trial court admitted the exhibit without explaining its decision.

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

  unexplained adjustments on Plaintiffs’ Exhibit 104,” which were

  demonstrated through the controller’s testimony and discrepancies

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

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

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

  transactions.


                                     39
                              B.   Disclosure

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

  disclose Exhibit 1093. We disagree.

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

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

  provide documents “relevant to disputed facts alleged with

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

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

  disclosures made if it learned that the information previously

  disclosed was incomplete or incorrect in some material respect and

  the additional information had not otherwise been made known to

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

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

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

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

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

  manifestly arbitrary, unreasonable, or unfair.” Id.

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

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

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


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

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

  foreclosure commitment, not full title insurance policy premiums.

¶ 87   Even if we assume that defendants should have identified

  Exhibit 1093 as a required supplement to its previous disclosures,

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

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

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

  trial court decides that a sanction is warranted for a discovery

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

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

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

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

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

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

  harmlessness,

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


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

  1999).

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

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

  trial court did not abuse its discretion in declining to exclude

  Exhibit 1093 as a sanction for defendants’ failure to supplement

  their mandatory disclosures at a late point in litigation. While

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

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

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

  surprise.

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

  could have responded to and explained the evidence with an

  appropriate witness from LSI. However, the LSI controller testified

  at trial that his department had received and made changes to

  numerous charges within the spreadsheet in the middle of 2015.

  Plaintiffs had the opportunity to cross-examine the controller and

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

  discretion in declining to exclude Exhibit 1093 because defendants

  did not disclose it prior to trial.


                                        42
                      C.   Trial Management Order

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

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

  management order and the trial court failed to make necessary

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

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

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

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

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

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

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

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

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

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

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

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

  not abuse its discretion in failing to sua sponte make findings

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

  particular ground was not made known to the court.




                                    43
                            D.   Foundation

¶ 94   Plaintiffs argue that Exhibit 1093 lacked a sufficient

  foundation because the controller did not have personal knowledge

  necessary to authenticate it. We disagree.

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

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

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

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

  other distinctive characteristics, taken in conjunction with

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

  that emails may be authenticated through either testimony

  explaining that they are what they purport to be or through

  consideration of their distinctive characteristics shown by an

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

  2013 COA 79, ¶ 10.

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

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

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

  recognized the sender’s email signature, which included the

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


                                   44
  with collection statements the company sent out. Because the

  controller could authenticate the email through its distinctive

  characteristics, he was not required to have personal knowledge of

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

  admission of Exhibit 1093.

                  E.    Impeachment Versus Rebuttal

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

  improperly considered for its substance, rather than just

  impeachment, we disagree. While defendants offered Exhibit 1093

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

  admitted the exhibit on that basis. The terms impeachment and

  rebuttal are sometimes used interchangeably; impeachment

  generally refers to proof a witness made statements inconsistent

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

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

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

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

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

  was admitted to contradict the data presented in Exhibit 104.

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


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

  for its substance, rather than limiting its consideration to

  impeachment.

                      VIII. Appellate Attorney Fees

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

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

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

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

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

  provision awarding attorney fees to party successfully defending

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

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

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

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

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

  total amount of plaintiffs’ reasonable fees and costs incurred on

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

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




                                    46
                            IX.   Conclusion

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

  with directions to determine an award of plaintiffs’ reasonable

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

  plaintiffs’ unsuccessful claim on cross-appeal.

        JUDGE TAUBMAN and JUDGE HARRIS concur.




                                    47
