author: Justice RICE Justice MARTINEZ

text:
    Deborah J. BORER and Ted Borer, Petitioners v. Chris LEWIS and Carolyn Lewis, Respondents.
    No. 02SC808.
    Supreme Court of Colorado, En Banc.
    May 24, 2004.
    Rehearing Denied June 21, 2004.

      The Law Firm of Stephen H. Cook, P.C., Stephen H. Cook, Derek Regensburger, Boulder, Colorado, Walter H. Sargent, Colorado Springs, Colorado, Attorneys for Petitioners.
    John R. Rodman & Associates, John R. Rodman, Denver, Colorado, Attorney for Respondents.

       Justice MARTINEZ would grant the petition.

   Justice RICE

delivered the Opinion of the Court.

The plaintiffs, Deborah and Ted Borer (hereinafter the “Plaintiffs”), appeal from a court of appeals decision affirming a trial court order setting aside a default judgment against the defendant, Carolyn Lewis (hereinafter the “Defendant”). The trial court found that the Defendant proved by a preponderance of the evidence that process had never been served to her, and the court of appeals affirmed. The Plaintiffs argue that the lower courts erred in requiring the Defendant to prove that the default judgment should be set aside only by a preponderance of the evidence. Instead, the Plaintiffs claim that the Defendant was required to present “clear, strong and satisfactory proof’ that the judgment should be set aside. We agree with the Plaintiffs that the lower courts erred in applying the preponderance of the evidence standard. However, because we find that, viewing the record as a whole, the Defendant did present “clear, strong and satisfactory proof’ that she was never served, we uphold the order setting aside the default judgment.

I. Facts and Proceedings Below

This case stems from an automobile accident which took place on September 21,1984, wherein a car driven by Otway Shans crashed into a vehicle in which Deborah Borer was a passenger. At the time of the accident, Shans, who had not yet received his driver’s license, was driving a car owned by his friend, Chris Lewis, and insured by Chris’ mother, Carolyn Lewis. Mrs. Borer and her husband initially filed suit only against Shans but, in June 1986, filed an amended complaint adding Chris and Carolyn Lewis as defendants and asserting claims of negligent entrustment against both Chris and Carolyn Lewis as well as civil conspiracy and outrageous conduct against Chris Lewis.

The Plaintiffs claim that they achieved service of process against the Defendant on October 3, 1986, relying on a Return of Service signed by Denver Deputy Sheriff Sherri Chase which stated that a summons and a copy of the First Amended Complaint were served on the Defendant on that date. Based on the Defendant’s failure to file a timely response to that complaint, the trial judge, upon the Plaintiffs’ motion, entered a default judgment against the Defendant on March 11, 1987. The Defendant and her son then filed their answer to the First Amended Complaint on March 16, 1987.

Subsequently, the Defendant discovered the default judgment which had been entered against her, and, on July 21, 1987, filed a Motion to Set Aside Default Judgment Against Carolyn Lewis and to Permit Filing of Answer and Supporting Memorandum pursuant to C.R.C.P. 56(c). In support of her motion, the Defendant provided an affidavit stating that she had never been served with a summons and complaint; that she was insured at the time of the accident and was aware of the need to give prompt notice of service to her insurer; that she did not own the ear driven by Shans and did not entrust the car to Shans on the night of the accident; and that she believed she had a meritorious defense. The trial judge, after considering the Defendant’s affidavit as well as the Return of Service signed by Deputy Chase, ruled that the Defendant was properly served on October 3, 1986, that the Defendant had failed to establish the existence of a meritorious defense, and that the balance of equities weighed in the Plaintiffs’ favor. The trial judge therefore denied the Defendant’s motion to set aside the default judgment.

After a jury trial wherein damages were assessed against the Defendant and liability and damages were determined as against both Chris Lewis and Otway Shans, the Defendant again moved to set aside the judgment, this time citing evidence that she had been heavily sedated in October 1986 and therefore would have been unable to recognize the summons and complaint if they were in fact served upon her. The trial court denied that motion and the Defendant appealed. In April 1990, the court of appeals reversed the trial court’s orders denying the Defendant’s motions to set aside the default judgment. The court of appeals ruled that the trial court erred in failing to conduct an evidentiary hearing prior to ruling on the matter. Thus, the court of appeals remanded the matter to the trial court with directions to conduct an evidentiary hearing both as to whether the Defendant was actually served and, if so, whether the default judgment might nevertheless be set aside based on grounds of excusable neglect.

At the hearing on remand, the Defendant testified that she had never been served and also testified regarding the nature of various medical problems she had been experiencing during October 1986 which required her to take medications that interfered with her memory as well as her ability to appreciate the full implication of legal documents. Additionally, the Defendant presented the testimony of her insurance representative, who stated that he was in contact with the Defendant during the relevant time period and that she had consistently stated to him that she was not served with any summons in October 1986.

The Plaintiffs offered the testimony of Deputy Chase, who could not specifically remember serving papers to the Defendant but instead described her habit and routine practice regarding service of process generally. Deputy Chase testified that she was serving approximately fifty to eighty people per day during October 1986 and would routinely note on each service envelope whether service was successful. In addition to Deputy Chase’s testimony, the Plaintiffs relied on the service envelope and Return of Service documentation created by the Deputy in October 1986, as well as earlier affidavits in which Deputy Chase described her service of process to the Defendant, as evidence that the Defendant was in fact served.

At the close of the hearings, the trial court ruled in favor of the Defendant because it found that she had established by a preponderance of the evidence that she had not been served. The trial court’s ruling was based on a determination that Deputy Chase’s testimony regarding the amount of summonses served daily was “not plausible” and that inconsistencies in her testimony regarding the security details of the Defendant’s building “detracted] from her believability.” The court further noted that while the Defendant was not “particularly credible,” her “active participation in other court proceedings [made] it unlikely that she would attempt to evade the instant case by claiming non-service of process.” Finally, the trial court observed that because the Defendant was represented by counsel and her legal expenses were covered by insurance, she had little incentive to falsely deny process. Thus, finding that process had not been served, the trial court never ruled on the Defendant’s arguments regarding excusable neglect.

After several years of proceedings regarding the outstanding claims, the trial court granted summary judgment in favor of the Defendant and Chris Lewis on all claims against them. The Plaintiffs appealed both the entry of summary judgment and the order setting aside the default judgment against the Defendant based on the preponderance of the evidence standard. The court of appeals reversed the trial court’s entry of summary judgment. However, the court of appeals upheld the trial court’s order setting aside the default judgment against the Defendant, ruling that the trial court properly applied the preponderance of the evidence standard to the issue before it. This appeal followed.

II. Applicable Law

At issue before us today is what burden should be applied to a party seeking to overturn a default judgment entered against them. In particular, we are called upon to address whether section 13-25-127, 5 C.R.S. (2003), which sets forth the burden of proof for civil actions, has effectively overridden the standard previously established through our common law. In order to answer these questions, we look first to our common law establishing the burden of proof in setting aside default judgments, and then to section 13-25-127 to determine what impact, if any, that statutory enactment has had on the common law rule.

A. Common Law

The process by which a default judgment may be set aside under C.R.C.P. 55(c) or C.R.C.P. 60(b) has been well-established through our case law. “The underlying goal in ruling on motions to set aside default judgments is to promote substantial justice.” Craig, 651 P.2d at 401. The determination of whether a default judgment should be set aside in order to promote substantial justice is generally left to the sound discretion of the trial court. Id. at 402; see also, e.g., Browning v. Potter, 129 Colo. 448, 457, 271 P.2d 418, 423 (1954) (stating that “the granting or denial of an application to vacate a default judgment, based on excusable neglect rests in the sound judicial discretion of the trial court”); Gumaer v. Bell, 51 Colo. 473, 482, 119 P. 681, 684 (1911) (observing that applications for relief against default judgments “are addressed to the discretion— the legal discretion — of the court in which the default has occurred, and should be disposed of by it as substantial justice may so require”). However, such discretion is not without bounds:

When there does exist a controlling legal standard, however, a court may not disregard that standard in favor of some other legal rule. The fact that the legal standard requires the consideration and application of several elements to the facts of a case does not alter in the least the court’s obligation to decide the controversy in accordance with that standard. Thus, while a court may retain discretion in determining the weight to be given certain evidence relevant to the controlling legal criteria or in assessing the relative significance to be accorded various factors encompassed within those criteria, it must exercise that discretion within the framework of, rather than in disregard of, the controlling legal norms.

Buckmiller, 727 P.2d at 1115-16 (reversing a trial court’s denial of a motion to set aside default judgment on grounds of excusable neglect where the trial court failed to consider. all the legal criteria necessary to the resolution of the motion).

When ruling on a motion to,set aside a default judgment, a trial court’s discretion is bound by the applicable burden of proof on the moving party. We have long held that a party seeking relief from a default judgment “has the burden of establishing the grounds ‘by clear, strong and satisfactory proof.’ ” Craig, 651 P.2d at 402 (quoting Riss v. Air Rental, Inc., 136 Colo. 216, 218, 315 P.2d 820, 821 (1957)); see also, e.g., Browning, 129 Colo, at 457, 271 P.2d at 423. Additionally, we have equated the “clear, strong and satisfactory proof’ standard with the “clear and convincing”- burden of proof. See Craig, 651 P.2d at 402 (noting that the “alternate formulation [of clear and convincing] describes no different test than the ‘clear, strong and satisfactory proof test”); Burr v. Allard, 133 Colo. 270, 275, 293 P.2d 969, 972 (1956) (stating the standard as “clear and convincing proof’). Thus, whether seeking to overturn a default judgment under C.R.C.P. 55(c) for “good cause,” or under C.R.C.P. 60(b) for “excusable neglect,” a party has been required to establish his or her right to the relief sought by clear and convincing proof. We turn now to the issue of whether passage of section 13-25-127 altered this well-established burden of proof.

B. The Statute

Section 13-25-127(1) provides that “the burden of proof in any civil action shall be by a preponderance of the evidence.” Both the trial court and the court of appeals below found that this section applies to a motion to set aside a default judgment, and therefore replaces our common law burden of “clear and convincing proof’ with the reduced “preponderance of the evidence” standard. We disagree.

At the outset, we note that the section establishes a burden of proof which applies only to “civil actions.” § 13-25-127(1). For the reasons discussed below, we construe the term “civil action” as being limited to the substantive action or claim itself, rather than all prticedural motions which might arise throughout the course of that civil action. We further find that a motion for the setting aside of a default judgment is not a “civil action,” but instead is a simple procedural motion taking place within the context of a substantive “civil action.” Thus, we hold that section 13-25-127, which governs the burden of proof for “civil actions,” is inapplicable to a motion to set aside a default judgment.

We have previously distinguished between rules governing procedural issues and rules governing substantive issues, noting that “rules adopted to permit the courts to function and function efficiently are procedural whereas matters of public policy are substantive and are therefore appropriate subjects for legislation.” People v. Wiedemer, 852 P.2d 424, 436 (Colo.1993); see also People v. Bobian, 626 P.2d 1132, 1134-35 (Colo.1981); People v. McKenna, 196 Colo. 367, 370, 585 P.2d 275, 276-77 (1978). Under the state constitution, we possess plenary authority to create procedural rules in both civil and criminal eases. Colo. Const. art. VI, see. 21 (“The supreme court shall make and promulgate rules governing the administration of all courts and shall make and promulgate rules governing practice and procedure in civil and criminal cases....”). On the other hand, the legislature may. enact statutes governing substantive issues, including rules which are designed to further matters of public policy. See, e.g., Wiedemer, 852 P.2d at 436 (“The legislature, however, has the authority to enact statutes directed to substantive matters as distinguished from procedural matters.”); Bobian, 626 P.2d at 1135 (recognizing that “the General Assembly has the power to promulgate substantive rules of evidence”); McKenna, 196 Colo. at 373, 585 P.2d at 279 (upholding the General Assembly’s enactment of Colorado’s rape-shield statute).

The distinction between a procedural and a substantive rule is not always clear, but “legislative policy and judicial rulemaking powers may overlap to some extent so long as there is no substantial conflict between statute and rule.” McKenna, 196 Colo. at 373, 585 P.2d at 279. To the extent such distinctions must be drawn, however, we strive to avoid any unnecessary “[cjonfrontation[s] of constitutional authority,” and instead seek to reconcile the language and intent of the legislative enactment with our own well-established rules of procedure. Id.

With these principles in mind, we turn to section 13-25-127. We recognize that section 13-25-127 is a proper legislative enactment insofar as it applies to the burden of proof in substantive civil actions because the overall burden necessary to prove a civil claim is a matter of public policy. See, e.g., Vikman v. Int’l Broth. of Elec. Workers, Local Union No. 1269, 889 P.2d 646, 661 (Colo.1995) (concluding that “the public policy established by the General Assembly precludes judicial imposition of a heightened burden of proof on a person seeking remedies against a labor union for allegedly tor-tious conduct” rather than the “preponderance of the evidence” burden set forth by state statute).

On the other hand, we find that section 13-25-127 cannot be read as applying to motions to set aside default judgments. A motion to set aside a default judgment is a simple procedural matter; rules governing such motions do not implicate any of the larger considerations of public policy, but instead are designed to “permit the courts to function and function efficiently.” Wiedemer, 852 P.2d at 436. Moreover, under the power reserved expressly to the judiciary for the promulgation of rules governing procedural matters, we have clearly established the burden of proof necessary to win a motion to set aside a default judgment. Thus, in order to avoid a “confrontation of constitutional authority,” we hold that in enacting section 13-25-127, the General Assembly did not legislatively override the “clear and convincing” burden of proof which has always been applied to proceedings to set aside default judg-merits. Were we to conclude otherwise, we would be required to find the statute unconstitutional as an impermissible infringement on the judiciary’s- authority to promulgate procedural rules.

Our holding today is consistent with our cases addressing default judgments since enactment of the section. In every case which has arisen regarding motions to set aside default judgments, we have applied our traditional “clear, strong and satisfactory proof’ standard. See In re Weisbard, 25 P.3d 24, 26 (Colo.2001) (applying the “clear, strong and satisfactory proof’ default judgment standard to a motion to vacate a default judgment in an attorney regulation case); Sumler v. Dist. Court, 889 P.2d 50, 55-56 (Colo.1995) (applying the “clear, strong and satisfactory proof’ standard to a motion to set aside a default judgment in a wrongful termination case); Buckmiller, 727 P.2d at 1116 (applying the “clear, strong and satisfactory proof’ standard to a motion to set aside a default judgment in a slip and fall case); Craig, 651 P.2d at 402 (applying the “clear, strong and satisfactory proof’ default judgment standard to a motion to vacate a formal testacy order); see also Colo. Dep’t of Pub. Health and Env’t v. Caulk, 969 P.2d 804, 809 (Colo.App.1998) (applying the “clear, strong and satisfactory proof’ standard to a motion to set aside a default judgment in a hazardous waste suit). Thus, while we did not explicitly address section 13-25-127 in any of these eases, we have continued to apply the higher, common law burden of proof to motions to set aside default judgments for over three decades following the enactment of the section.

On the other hand, we have applied the statutory “preponderance of the evidence” standard to substantive civil claims in cases following enactment of section 13-25-127. For example, in Gerner v. Sullivan, 768 P.2d 701 (Colo.1989), we found that the statutory burden of proof was applicable in an adverse possession case, rather than the clear and convincing standard previously established throughout our case law. See also Water Rights of Masters Inv. Co. v. Irrigationists Ass’n, 702 P.2d 268 (Colo.1985) (applying the statutory standard to the intent to abandon water rights). In reaching our holding, we stated that the burden of proof set forth in section 13-25-127 applied in civil cases except where a “constitutional concern” dictates otherwise. Gerner, 768 P.2d at 704; see also Diversified Mgmt., Inc. v. Denver Post, Inc., 653 P.2d 1103, 1108 (Colo.1982) (holding that the common law' “clear and convincing” standard superseded the statutory “preponderance of the evidence” standard where the constitutional issue of freedom of speech was implicated in a defamation action). In each of the above cases applying the preponderance of the evidence standard, our discussion of section 13-25-127 addressed the burden of proof applicable to a substantive civil claim, and was unrelated to any procedural motion.

Thus, we have implicitly distinguished between the applicability of section 13-25-127 to substantive civil claims as opposed to procedural motions. See Salle v. Howe, 757 P.2d 154, 155 (Colo.App.1988) (“We presume that ... our supreme court was cognizant of [section 13-25-127], but specifically chose to maintain as a matter of procedure, the higher quantum of .proof, developed at common law, in proceedings to set aside default judgments.”). In issuing our holding today, we make that distinction explicit.

In sum, we find that the common law “clear, strong and satisfactory” burden of proof remains applicable' in the context of motions to set aside default judgments. The General Assembly’s enactment of section 13-25-127, while properly establishing the burden of proof applicable to substantive “civil actions,” did not override the procedural rule which we had already established. We therefore disapprove the decisions of the lower courts insofar as they improperly applied the lower “preponderance of the evidence” standard to the Defendant’s motion to set aside the default judgment against her.

III. Application

Despite the lower courts’ application of the improper standard to the Defendant’s motion, we nevertheless uphold the order setting aside the default judgment against the Defendant. Viewing the record as a whole, we find that the Defendant did establish, by clear and convincing evidence, that she was not served with a summons and complaint in October 1986. The only significant evidence suggesting that the Defendant was served was the Return-of Service signed by Deputy Chase. However, as the trial court noted, Deputy Chase’s testimony regarding serving the Defendant was inconsistent at best. In fact, the trial court found Deputy Chase’s testimony regarding service of process in general to be implausible. Conversely, the trial court found no reason to doubt the Defendant’s claim that she was not served. The Defendant was aware of the litigation, had spoken with her insurance representative regarding the litigation during the relevant time period, and had acknowledged service of process to her son regarding the claims against him. Additionally, the Defendant had no incentive to deny service of process, given that her insurance company was providing her with counsel and covering the expenses of litigation. Finally, the Defendant presented the corroborative testimony of her insurance representative, who confirmed that in his several conversations with the Defendant, she had repeatedly denied being served in October 1986. Thus, considering the evidence as a whole, we find that the Defendant established by “clear, strong and satisfactory proof’ that she was never served with process.

IV. Conclusion

We find that the trial court and the court of appeals erred in applying the statutory preponderance of the evidence standard to the Defendant’s motion to set aside the default judgment against her. Instead, we hold that the burden of proof set forth in section 13-25-127 is applicable only to substantive civil actions, while our common law procedural rule requiring “clear, strong and satisfactory proof’ remains applicable to proceedings to set aside default judgments. We further hold that the Defendant presented sufficient testimony that she was not served so as to satisfy the “clear, strong and satisfactory proof’ standard. Thus, we affirm the lower courts’ rulings setting aside the default judgment against the Defendant.

Justice MARTINEZ concurs in part and dissents in part.

Justice MARTINEZ

concurring in part and dissenting in part:

Although I agree with the majority’s analysis of the proper standard, I write in this case because I do not agree that we should usurp the authority of the trial court and ourselves apply that standard to the disputed facts of this case. In particular, I do not agree that we should be deciding issues of credibility based solely on a dry record, which itself highlights credibility issues in this case, and without the benefit of live testimony. Therefore, I respectfully dissent as to part-III of the majority opinion.

As the majority points out, the trial court did not find the testimony of Deputy Chase particularly credible. However, the trial court also seriously questioned the Defendant’s credibility. The trial court specifically stated in its ruling that it did “not find [the Defendant] particularly credible. She was manipulative, evasive, and at times, untruthful on the stand.” Additionally, the record reveals that the Defendant had been convicted of felonies including fraud and deceit, criminal impersonation, and false statements. The Defendant’s own psychiatrist testified that at times the Defendant manipulated events and that she was not an honest person. Furthermore, despite the alleged failure of service of process, the Defendant filed an untimely answer brief, but did not bring up the lack of service. The Defendant did not address lack of service until two years later.

Although the trial court ultimately found in favor of the Defendant, it prefaced its discussion by stating that the Defendant had established “by a preponderance of the evidence that she had not been served.” When analyzing the credibility of the witnesses, the court noted only that due to other pending legal matters, it was “unlikely” that the Defendant would falsely claim non-service of process. I find it particularly troublesome that the trial court used the word, “unlikely,” which is more suggestive of the preponderance standard than of the greater “clear and convincing” standard. For all of these reasons, review of the trial court’s decision does not provide assurance that the decision would have come out the same way had the court used the proper standard of clear and convincing evidence.

We have held innumerable times before that issues of credibility should be decided by the trial court. “It is the function of the trial court, and not the reviewing court, to weigh evidence and determine the credibility of the witnesses.” People v. Pitts, 13 P.3d 1218, 1221 (Colo.2000). “The credibility of the witnesses, the sufficiency, probative effect and weight of the evidence, the inferences and conclusions to be drawn therefrom, of necessity, are all within the province of the trial court....” Broncucia v. McGee, 173 Colo. 22, 25, 475 P.2d 336, 337 (1970); see also People v. Mendoza-Balderama, 981 P.2d 150, 157 (Colo.1999) (“When confronted with a choice of competing facts upon which the trial court has not passed, we are hesitant, as an appellate court, to weigh the evidence and determine credibility.”); People v. Jordan, 891 P.2d 1010, 1019 (Colo.1995) (“this court may not speculate on witness credibility”); Wilson v. Bd. of County Commrs., 703 P.2d 1257, 1259 (Colo.1985) (“it is not the province of this court to judge the weight of the evidence or the credibility of the witnesses”).

Therefore, consistent with our previous case law, I would remand this case to the trial court to reexamine the credibility of the witnesses given the higher standard for motions to set aside default judgment that we reiterate today.

      . The Defendant essentially raised two distinct arguments in her motion. First, if the Defendant were to prove that she was never actually served, the Defendant could have the default judgment set aside as void. See Weber v. Williams, 137 Colo. 269, 277, 324 P.2d 365, 369 (1958) (stating that "a judgment rendered without service is ... void”) (quoting Great West Min. Co. v. Woodmas of Alston Min. Co., 12 Colo. 46, 53, 20 P. 771, 775 (1888)). Alternatively, the Defendant could have the judgment set aside on grounds of "excusable neglect” pursuant to C.R.C.P. 60(b). In order to prove excusable neglect, the Defendant would have to establish that the neglect leading to the default judgment was excusable, that she has alleged a meritorious defense, and that relief from the default judgment would be consistent with equitable considerations including the prevention of prejudice to the non-moving party. See Craig v. Rider, 651 P.2d 397, 402 (Colo.1982).

      . C.R.C.P. 55(c) provides: “For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).” C.R.C.P. 60(b) further provides, as relevant here, that "the court may relieve a party or his legal representative from a final judgment, order, or proceeding for ... (1) ... excusable neglect.” We.have previously noted that "a motion to set aside a default under C.R.C.P. 55(c) and a motion to vacate a judgment under C.R.C.P. 60(b) on the basis of excusable neglect are sufficiently analogous to justify the application of the same standards to either motion.” Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112, 1116 (Colo.1986); see also Craig v. Rider, 651 P.2d 397, 401 (Colo.1982). Thus, our discussion today governs motions under both rules.

      . In issuing today's opinion, we overrule the court of appeals' decision in White Front Auto Sales, Inc. v. Mygatt, which held that the defendant was required to prove lack of service of process only by a preponderance of the evidence. 810 P.2d 234 (Colo.App.1990).

      . Ordinarily, the determination of whether the Defendant had satisfied the burden of proof necessary to set aside the default judgment would be a matter for the trial court. Craig, 651 P.2d at 402. However, as a matter of judicial economy, we will address the issue 'based on the trial court’s factual findings as set forth in the record below.


source: Caselaw Access Project

author: Justice KOURLIS

license: Public Domain

text:
    Les NORMANDIN, Petitioner v. The PEOPLE of the Town of Parachute, Respondent.
    No. 03SC227.
    Supreme Court of Colorado, En Banc.
    June 7, 2004.

      Gordan P. Gallagher, Grand Junction, Colorado, Attorney for Petitioner.
    Carter & Sands, P.C., Stephen L. Carter, Rifle, Colorado, Attorneys for Respondent.
   Justice KOURLIS

delivered the Opinion of the Court.

I. Introduction

In this case, we deal only with a procedural issue, and not with the underlying merits of the case. The district court here dismissed an appeal taken from a conviction entered in a qualified municipal court of record. Relying on section 13-10-117, 5 C.R.S. (2003), the district court concluded that the appellant’s failure to file the notice of appeal within ten days of the entry of the judgment of conviction rendered the appeal untimely.

We now reverse the district court’s ruling and hold that because the conviction originated in a municipal court of record, the appellant had thirty days following the judgment of conviction to file the notice of appeal, pursuant to section 13-10-116(2), 5 C.R.S. (2003), Colorado Municipal Court Rule (C.M.C.R.) 237, and Crim. P. 37. The appellant in this case filed his notice of appeal within thirty days following the judgment of conviction, and therefore the appeal was timely.

II. Factual and Procedural Background

On October 7, 2002, Les Normandin was convicted of two separate municipal criminal violations by two separate juries. Judgment was entered for each conviction on October 7, 2002.

On November 6, 2002, twenty-nine days after the judgments of conviction were entered, Normandin filed a notice of appeal for both convictions with the District Court for the Ninth Judicial District. The cases were consolidated for purposes of appeal.

On January 27, 2003, the prosecutor for the People of the Town of Parachute (“Parachute”) moved to dismiss the appeal on the grounds that the notice of appeal was untimely filed. Parachute argued that section 13-10-117 required Normandin to file notice of the appeal within ten days of the judgment of conviction. Because he filed the notice twenty-nine days after the convictions were entered, Parachute contended that the district court was without jurisdiction to hear the appeal.

Normandin countered that section 13 — 10— 116(2) and, by extension of that statute, C.M.C.R. 237 and Crim. P. 37 govern the time for appeal. He argued that the statute and those rules afford a defendant convicted in a municipal court of record thirty days in which to file an appeal to the district court following the judgment of conviction. Because he filed the notice of appeal twenty-nine days after the convictions, Normandin argued that his appeal was timely filed.

The district court dismissed the appeal on March 7, 2003. In its order, the court noted that it perceived a conflict between the rules deriving from section 13-10-116 and section 13-10-117. Specifically, while Crim. P. 37 and section 13-10-116(2) granted Normandin thirty days to file an appeal, section 13-10-117 afforded him only ten. The court noted that “the Municipal Court is created by statute and that these statutes governing the Court control where the statutes are in conflict with the rules of procedure.” Accordingly, the court concluded that because the statutes required Normandin to file the appeal within ten days of the convictions and because Normandin failed to do so, the court dismissed the appeal.

Normandin then petitioned this court for certiorari pursuant to section 13-6-310(4), 6 C.R.S. (2003). We granted that petition and now must decide whether a defendant convicted in a Colorado municipal court of record has ten days or thirty days within which to file a notice of appeal with the district court.

III. Analysis

Both parties to this case agree that if section 13-10-116(2) is controlling, Norman-din’s notice of appeal was timely filed. They also agree that if section 13-10-117 governs, Normandin’s notice of appeal was not timely filed. There are two categories of municipal courts in this state: (1) municipal courts of record, which are presided over by an attorney judge and are required to maintain an official record of in-court proceedings, and (2) the balance of municipal courts. Both the appeal procedure and the timing for such an appeal differ between the two types of courts. Normandin’s convictions were entered by a municipal court of record; we therefore conclude that section 13-10-116(2) controls and the district court erred in dismissing Normandin’s appeal as untimely.

A. Statutes and Rules Governing Appeals Taken from Municipal Courts

1. Municipal Courts

The procedures governing municipal courts are generally found in article 10 of title 13 of the Colorado Revised Statutes. § 13-10-103, 5 C.R.S. (2003). Section 13-10-102, 5 C.R.S. (2003), sets out the definitions for the governing provisions and provides that a “ ‘[mjunicipal court’ includes police courts and police magistrate courts created or existing under previous laws or under a municipal charter and ordinances.” § 13-10-102(1). It then further defines a “[qjualified municipal court of record” (emphasis added) as

a municipal court established by, and operating in conformity with, either local charter or ordinances containing provisions requiring the keeping of a verbatim record of the proceedings and evidence at trials by either electric devices or stenographic means, and requiring as a qualification for the office of judge of such court that he has been admitted to, and is currently licensed in, the practice of law in Colorado.

§ 13-10-102(3). These definitions provide crucial distinctions that apply throughout the article governing municipal courts.

2. Section 13-10-116

Section 13-10-116 sets out the rules governing appeals of judgments entered by the various municipal courts. Subsection (1) governs appeals of municipal court judgments and states that “[ajppeals may be taken by any defendant from any judgment of a municipal court which is not a qualified municipal court of record to the county court of the county in which such municipal court is located, and the cause shall be tried de novo in the appellate court.” Subsection (2) governs appeals, from qualified municipal courts of record and provides that

[ajppeals taken from judgments of a qualified municipal court of record shall- be made to the district court of the county in which the qualified municipal court of record is located. The practice and procedure in such case shall be the same as provided by section 13-6-310 and applicable rules of procedure for the appeal of misdemeanor convictions from the county court to the district court, and the appeal procedures set forth in this article shall not apply to such case.”

(emphasis added). Section 13-6-310 provides the appellate procedures to be followed when appealing a judgment of the county court. Broadly stated, it provides that appeals from county courts are to be made to the district court and that the district court is to review the appeal on the record made at the county court level. § 13-6-310(1).

3. C.M.C.R. 237 and the Time for Appeals Taken from Municipal Courts

C.M.C.R. 237 (“Rule 237”) pertains specifically to municipal court appeals. Rule 237(a) states that “[a]ppeals from courts not of record shall be in accordance with sections 13-10-116 to 13-10-125, C.R.S.” Part of the confusion in this ease stems from the fact that section 13-10-117 generally states the time for appeals from municipal courts, without distinguishing between municipal courts of record and not of record. It provides that “[ajppeals may be taken within ten days after entry of any judgment of a municipal court.” § 13-10-117.

Rule 237(b), however, then explicitly provides that “[ajppeals from courts of record shall be in accordance with Rule 37 of the Colorado Rules of Criminal Procedure.” Thus, judgments entered in a qualified municipal court of record are to be appealed according to the rules governing appeals of county court convictions, which are in turn governed by Crim. P. 37.

4. Crim. P. 37

Crim. P. 37 (“Rule 37”), entitled “Appeals from county court,” provides, as pertinent here, that “[t]o appeal the appellant shall, within thirty days after the day of entry of the judgment or the denial of post trial motions, whichever is later, file notice of appeal in the county court....” Thus, Rule 237 and Rule 37 combine to provide a thirty-day opportunity to file a notice of appeal from a judgment entered by a municipal court of record. ■

Hence, the impact of these various provisions is that appeals from municipal courts NOT of record go to the county court, are tried de novo — because of the absence of a record — and must be filed within ten days. To the contrary, appeals from municipal courts of record, like appeals from county courts, go directly to the district court, are reviewed on the record, and must be filed within thirty days.

B. Perceived Conflict between the Rules Governing Appeals Taken from Judgments Entered by a Municipal Court of Record and Section 13-10-117

In its order dismissing Normandin’s appeal, the district court ruled that a defendant appealing a judgment from a municipal court — whether a municipal court or a municipal court of record — has only ten days to file his notice of appeal following the entry of judgment. The court based its ruling entirely upon section 13-10-117, which, according to the court, mandates a ten-day window within which to file an appeal from all municipal courts and conflicts irreconcilably with each of the rules and statutes described above.

Parachute now asks this court to affirm that ruling. However, Parachute does not dispute that the plain language of section 13-10-116(2) and its associated rules of procedure provide Normandin and similarly situated appellants with a thirty-day opportunity to file an appeal. Instead, it argues, as the district court held, that 13-10-117 conflicts with section 13-10-116 and that because section 13-10-117 is the more specific statute of the two, its ten-day time limit controls. We reject this argument — and, therefore reverse the district court’s order of dismissal — because we perceive no conflict between section 13-10-117 and section 13-10-116 and its associated rules of procedure.

1. Standard of Review

As with all statutes, we must interpret a statute so as to give effect to legislative intent. Concerned Parents of Pueblo, Inc. v. Gilmore, 47 P.3d 311, 313 (Colo.2002). To discern that intent, “we afford the statutory language its ordinary and common meaning, giving effect to every term and provision, including legislative definitions, while harmonizing potentially conflicting provisions, if possible.” Telluride Resort & Spa, L.P. v. Colo. Dep’t of Revenue, 40 P.3d 1260, 1264 (Colo.2002). Where the language of the statute is clear and unambiguous, we do not resort to interpretive rules of statutory construction. People v. Luther, 58 P.3d 1013, 1015 (Colo.2002).

We have held that “where two statutes attempt to regulate the same conduct, the more specific statute does preempt the general one.” Showpiece Homes Corp. v. Assurance Co. of Am., 38 P.3d 47, 53 (Colo.2002). We so hold, however, only when “there is a manifest inconsistency between the two statutes because statutory repeals by implication are disfavored.” Id. In all eases, “we will favor a construction that avoids potential conflict between the relevant provisions.” People v. Mojica-Simental, 73 P.3d 15, 17-18 (Colo.2003) (internal quotation marks omitted). We are also aware “that statutes giving the right of appeal are liberally construed in furtherance of justice, and that such interpretation as will work a forfeiture of the right is not favored.” Wigton v. Wigton, 69 Colo. 19, 22, 169 P. 133, 134 (Colo.1917).

Bearing in mind these interpretive principles, we now turn to the alleged conflict between section 13-10-117 and section 13-10-116 and its effect, if any, on the otherwise applicable rules governing the appeal at issue in this case.

2. Section 13-10-117

Section 13-10-117 declares in relevant part:

Appeals may be taken within ten days after entry of any judgment of a municipal court. No appeal shall be allowed until the appellant has paid to the clerk of the municipal court one dollar and fifty cents as a fee for preparing the transcript of record on appeal. If the municipal court is a court of record, the clerk of the municipal court is entitled to the same additional fees for preparing the record, ... as is the clerk of the county court on the appeal of misdemeanors....

Parachute contends that by virtue of the reference in this statute to “any judgment of a municipal court” and the later specific reference to a “municipal court ... of record,” the statute creates a ten-day appeal time-frame for all municipal court appeals. Accordingly, Parachute argues, all other statutes and rules affecting the appeals from judgments of municipal courts of record — in particular, section 13-10-116, Rule 237, and Rule 37 — are rendered invalid. We are not persuaded.

Section 13-10-116 specifically covers appeals taken from judgments of municipal courts of record and exempts those appeals from the otherwise applicable procedures governing appeals from municipal courts that are not of record. § 13-10-116(2) (“[T]he appeal procedures set forth in this' article shall not apply to such case.”). Rule 237, implementing that mandate, similarly bifurcates the appeal procedures, stating that “[ajppeals from courts not of record shall be in accordance with sections 13-10-116 to 13-10-125” and “[a]ppeals from courts of record shall be in accordance with Rule 37.” C.M.C.R. 237(a) & (b). Rule 37, which applies to appeals from courts of record, provides a thirty-day window in which to file a notice of appeal. Crim. P. 37(a).

A plain-language reading of section 13-10-117, on the other hand, indicates that it deals only with the fees associated with preparing a record on appeal from a judgment entered in a municipal court of record. It comports with Rule 37 and provides that “[i]f the municipal court is a court of record, the clerk of the municipal court is entitled to the same additional fees for preparing the record ... as is the clerk of the county court on the appeal of misdemeanors.” See Crim. P. 37 (“To appeal the appellant shall ... file notice of appeal in the county court, [and] post such advance costs as may be required for the preparation of the record.....”).

Contrary to Parachute’s contention, we view section 13-10-116(2) and its associated rules as by far the more specific on the issue of time for appeal than any tangential mention of municipal courts of record in section 13-10-117. We view section 13-10-116(2) as directly applicable to appellate court procedures both for judgments entered in county courts and for judgments entered in municipal courts of record. This interpretation is supported by the mandatory language contained in both Rule 237 and Rule 37. C.M.C.R. 237 (“Appeals from courts of record shall be in accordance with Rule 37.”) (emphasis added); Crim. P. 37 (“To appeal, the appellant shall, within thirty days after the date of entry of judgment or the denial of posttrial motions, whichever is later, file notice of appeal in the county court.”) (emphasis added).

IV. Conclusion

In summary, we are able to harmonize the specific rules governing appeals taken from municipal courts of record with the mention of municipal courts of record found in section 13-10-117 by applying the plain language of the applicable statutes. Section 13-10-116(2) and the associated rules govern those appeals generally, while section 13-10-117 merely dictates the fee that must be paid to have the record prepared. This interpretation gives effect to legislative intent and avoids a repeal of section 13-10-116(2) by implication. Because we see no conflict between section 13-10-116(2), including its implementing rules, and section 13-10-117, we conclude that section 13-10-116(2), Rule 237, and Rule 37 all combine to provide a defendant appealing a judgment entered in a municipal court of record thirty days in which to file that appeal. Accordingly, we reverse the district court’s order of dismissal and remand this case back to the district court for further proceedings.


author: Judge GRAHAM.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William DENTON, Defendant-Appellant.
    No. 01CA2344
    Colorado Court of Appeals, Div. IV.
    Aug. 14, 2003.
    As Modified on Denial of Rehearing Sept. 18, 2003.
    Certiorari Denied June 1, 2004.

      Ken Salazar, Attorney General, Melissa D. Allen, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Katherine Brien, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2002.

   Opinion by

Judge GRAHAM.

Defendant, William Denton, appeals the judgment of conviction entered upon jury verdicts finding him guilty of theft, first degree aggravated motor vehicle theft, and theft by receiving. Defendant also appeals the mandatory parole component of his habitual criminal sentence. We affirm the judgment of conviction for first degree aggravated motor vehicle theft and vacate the convictions and sentences for theft and theft by receiving. We also vacate the mandatory parole component of defendant’s habitual criminal sentence and remand for entry of an amended mittimus indicating that defendant is subject to discretionary parole.

I.

Defendant first argues that the evidence is insufficient to support the jury’s verdicts. We disagree.

When assessing the sufficiency of the evidence in support of a finding of guilt, a reviewing court must determine whether any rational trier of fact might accept the evidence, taken as a whole and in the light most favorable to the prosecution, as sufficient to support a finding of the accused’s guilt beyond a reasonable doubt. In applying this standard, we must give the prosecution the benefit of every reasonable inference that might fairly be drawn from the evidence. People v. Gonzales, 666 P.2d 123, 127-28 (Colo.1983).

“A person commits theft when he knbwingly obtains or exercises control over anything of value of another without authorization ... and ... [ijntends to deprive the other person permanently of the use or benefit of the thing of value.... ” Section 18-4-401(1)(a), C.R.S.2002. Theft is a class 4 felony when “the value of the thing involved is five hundred dollars or more but less than fifteen thousand dollars.” Section 18—4-401(1)(a), (2)(c), C.R.S.2002.

“A person commits aggravated motor vehicle theft' in the first degree if he or she knowingly obtains or exercises control over the motor vehicle of another without authorization ... and ... [rjemoves the motor vehicle from this state for a period of time in excess of twelve hours.... ” Section 18-4-409(2)(g), C.R.S.2002.

“[A] person commits theft by receiving when he receives [or] retains ... anything of value of another, knowing or believing that said thing of value has been stolen, and when he intends to deprive the lawful owner permanently of the use or benefit of the thing of value.” Section 18-4-410(1), C.R.S.2002. The offense is a class 4 felony when “the value of the thing involved is five hundred dollars or more but less than fifteen thousand dollars.” Section 18—1-410(1), (4), C.R.S.2002.' .

Here, the trial evidence, when viewed according to the foregoing standards, establishes the following facts. The victim parked her car with the keys in the ignition and returned that afternoon to discover that it was missing. The victim testified that she had purchased the car' approximately six months earlier for $1200 and that it was worth at least $1000 on the day it was stolen. The victim further testified that she did not know defendant and that she had not given him permission to drive her ear.

A friend of defendant testified that, on the morning after the victim’s car was stolen, defendant arrived at his house in Wyoming driving a car. Defendant’s friend went for a drive in the car with defendant. At approximately 12:30 p.m., the men were parked alongside a road when defendant spotted a police car and “panicked.” As the police car approached, defendant drove off the road and became stuck. Defendant told his friend that the “car may be stolen” and then fled from the scene on foot. When the police officer cheeked the registration of the car, he determined that it belonged to the victim.

Before trial, defendant tried to persuade his friend to testify falsely that he did not recall the events in question.

At trial, a prosecution witness testified that defendant lived approximately one quarter of á mile from the place where the victim had parked her car on the day that it was stolen.

Based on this evidence, a reasonable jury could have found beyond a reasonable doubt that defendant took the victim’s car without her authorization, that he did so with the intent to deprive her permanently of its use, and that he removed the car from Colorado for more than twelve hours. A reasonable jury also could have found that the car was worth more than five hundred dollars and less than fifteen thousand dollars. See People v. Bornman, 953 P.2d 952, 955 (Colo.App.1997)(in theft prosecution, vehicle owner’s testimony was competent to establish the value of the stolen vehicle). Accordingly, we conclude the evidence is sufficient to support the jury’s verdicts.

II.

Defendant next argues that the trial court erred in finding that the prosecution had not committed a discovery violation by failing to disclose certain oral statements that the victim made to a police officer and to the prosecutor. Again, we disagree.

The resolution of discovery issues is generally committed to the sound discretion of the trial court, and its determination will not be overturned on review absent an abuse of discretion or infringement of the constitutional rights of the accused. People v. Trujillo, 15 P.3d 1104, 1107 (Colo.App.2000).

In People v. Garcia, 627 P.2d 255 (Colo.App.1980), and People v. Graham, 678 P.2d 1043, 1047 (Colo.App.1983), divisions of this court held that Crim. P. 16 does not require the prosecution to reduce oral interviews with witnesses to writing and to provide the written version to defense counsel. At the time of those decisions, Crim. P. 16(I)(a)(1)(I), required that the following material be provided: “The names and addresses of persons whom the prosecuting attorney intends to call as witnesses at the hearing or trial, together with their relevant written or recorded statements.”

Defendant contends that People v. Garcia, supra, and People v. Graham, supra, have been effectively overruled because Crim. P. 16(I)(a)(1)(I) has since been amended and now states that the prosecuting attorney shall make available to the defendant “[p]o-lice, arrest and crime or offense reports, including statements of all witnesses.” According to defendant, the phrase “including statements of all witnesses” requires the prosecution to disclose unrecorded oral statements of witnesses. We are not persuaded.

In our view, the current Crim. P. 16(I)(a)(1)(I) only requires the prosecution to provide the defense with the written statements of witnesses or any written reports that quote or summarize oral statements made by witnesses. If the supreme court had intended the amendment of Crim. P. 16(I)(a)(1)(I) to require the disclosure of unrecorded oral statements, then it would have so specified as it did elsewhere in Crim P. 16. See, e.g., Crim. P. 16(I)(a)(1)(VIII) (the prosecuting attorney shall make available “the substance of any oral statements made to the police or prosecution by the accused or by a codefendant, if the trial is to be a joint one”).

Here, defendant’s ex-wife testified concerning defendant’s actions on the day that the victim’s car was stolen. In cross-examination, the prosecutor asked whether she had attempted to persuade the victim to drop the charges or alter her opinion as to the value of the vehicle. The witness admitted that she had contacted the victim, though she denied having done so for the purposes asserted by the prosecutor.

In the prosecution’s rebuttal case, the victim testified that defendant’s ex-wife had tried to persuade her to drop the charges and had urged her to testify falsely concerning the value of her vehicle. The victim further testified that she had reported this incident to the police.

Defendant objected to the victim’s rebuttal testimony, arguing that the prosecution had committed a discovery violation by failing to disclose the substance of the conversation between defendant’s ex-wife and the victim. In response, the prosecutor informed the court that the victim had only told him about the conversation the previous day and that, to the best of his knowledge, no police report had been generated memorializing the victim’s description of the conversation. The trial court found that the prosecution had not committed a discovery violation because defendant had failed to show that the police officer to whom the victim had spoken ever prepared a written report about the conversation.

We conclude the record supports the trial court’s determination. See People v. Vollentine, 643 P.2d 800 (Colo.App.1982)(where rebuttal testimony is not-introduced to refute a defense,- but is introduced to impeach a defense witness’s credibility, the prosecution need not disclose identity of rebuttal witness). Although we acknowledge that “the prosecution cannot circumvent an obligation to disclose exculpatory information by deliberately avoiding taking notes or reducing statements to writing,” People v. Anderson, 837 P.2d 293, 299 (Colo.App.1992), the victim’s statements relating her conversation with defendant’s ex-wife were not exculpatory, and nothing in the record suggests that the prosecutor or the police officer deliberately refrained from reducing the victim’s statements to writing in order to avoid a discovery obligation. Accordingly, we perceive no abuse of discretion in the trial court’s ruling.

III.

Defendant contends the trial court committed reversible error by admitting a certified document establishing a prior conviction that he denied during cross-examination. We are not persuaded.

A ruling admitting evidence is not reversible unless it affects a substantial right of the party against whom it is made. Crim. P. 52. If a reviewing court can say with fan* assurance that, in light of the entire record of the trial, the error did not substantially influence the verdict or impair the fairness of the trial, the error may properly be deemed harmless. People v. Stewart, 55 P.3d 107, 124 (Colo.2002).

Here, during direct examination, defendant testified that he had prior separate convictions for forgery, theft, robbery, and providing false information to obtain a firearm.

During cross-examination, the prosecutor asked defendant where he had been convicted of robbery. Defendant testified that he had been convicted in Nebraska. The prosecutor then asked defendant whether he had also been convicted of robbery in Illinois. Defendant testified that he had not. Over defendant’s objection, the trial court admitted a certified record of defendant’s Illinois robbery conviction. The certified documents contained a brief factual summary of the offense, which described how defendant, acting without a weapon, pushed a convenience store teller aside and grabbed money from the cash register.

We agree with defendant that the extraneous information concerning the facts of his Illinois robbery conviction constituted hearsay and should not have been admitted. However, we are convinced that this error was harmless because the information described a nonviolent offense and the jury was already aware that defendant had several prior convictions. Furthermore, to the extent that defendant’s claim is grounded on an alleged violation of his constitutional right to due process, we conclude the evidence of defendant’s guilt was so overwhelming that the error was harmless beyond a reasonable doubt. See People v. Perry, 68 P.3d 472 (Colo.App.2002)(a constitutional error is harmless when the evidence properly received is so overwhelming that such error was harmless beyond a reasonable doubt).

IV.

Defendant argues, and the People concede, that the trial court erred by entering more than one conviction based on identical evidence. We agree.

A defendant cannot be convicted of more than one offense based on identical evidence of the same act in the same criminal episode unless concurrent sentences are imposed against a single victim. People v. Jurado, 30 P.3d 769 (Colo.App.2001); People v. Dixon, 950 P.2d 686 (Colo.App.1997).

Although we agree with defendant that the three convictions based on identical evidence in this case cannot all stand, we reject his suggestion that he is entitled to a new trial where the prosecution will be compelled to select one of the three charges. Where multiple convictions are erroneously entered based on identical evidence, the ap-propínate remedy is to sustain the conviction that gives maximum effect to the jury’s ver-diets and vacate the duplicate convictions. People v. Graham, supra, 53 P.3d at 665; People v. Johnson, supra.

Here, all three convictions were for the same class of felony, and the trial court imposed identical concurrent sentences. Therefore, our selection of the conviction to sustain will not affect defendant’s punishment. Because we agree with the People that defendant’s conviction for first degree aggravated motor vehicle theft best describes his criminal conduct, we vacate the convictions for theft and theft by receiving as well as the sentences imposed in conjunction with those convictions.

V.

Finally, defendant asserts that, because he was sentenced as a habitual criminal, the trial court erred by imposing a period of mandatory parole rather than ordering discretionary parole. We agree. See People v. Falls, 58 P.3d 1140, 1141 (Colo.App.2002)(persons sentenced as habitual criminals are subject to the discretionary parole period established by §§ 17-2-201(5)(a), 17-2-213, C.R.S.2002, rather than the mandatory parole period provided in §§ 17-22.5-403(7), 18-1.3-401(1)(a)(V), C.R.S.2002). On remand the trial court must amend the mittimus accordingly.

The judgment of conviction for first degree aggravated motor vehicle theft is affirmed. The judgment of conviction for theft and theft by receiving, the sentences imposed on those convictions, and the mandatory parole component of defendant’s habitual criminal sentence are vacated. The case is remanded to the trial court with directions to enter an amended mittimus reflecting only the conviction for first degree aggravated motor vehicle theft and specifying that defendant is subject to discretionary parole,

Judge NIETO and Judge PLANK concur.


text:
    William K. COORS, individually, Plaintiff-Appellee and Cross-Appellant, v. SECURITY LIFE OF DENVER INSURANCE COMPANY, a registered domestic insurance corporation, Defendant-Appellant and Cross-Appellee.
    No. 02CA0851.
    Colorado Court of Appeals, Div. IV.
    Aug. 28, 2003.
    Certiorari Granted May 24, 2004.

      Podoll & Podoll, P.C., Richard B. Podoll, Greenwood Village, Colorado, for Plaintiff-Appellee and Cross-Appellant.
    Wheeler, Trigg & Kennedy, P.C., John M. Vaught, Heather J. Shull, Denver, Colorado, for Defendanh-Appellant and Cross-Appel-lee.
    Johnson & Ayd, P.C., James D. Johnson, Denver, Colorado, Amicus Curiae for Colorado Defense Lawyers Association.
    Roberts, Levin & Patterson, P.C., Bradley A. Levin, Christine K. Wilkinson, Denver, Colorado, Amicus Curiae for Colorado Trial Lawyers Association.

       Justice HOBBS would grant on the following issue:
      Whether the court of appeals erred in deciding an issue of first impression, by ruling that a violation of Colorado's Unfair Competition-Deceptive Practice Act, which defines and makes illegal specific unfair trade practices by the insurance industry, does not constitute a per se violation of the Colorado Consumer Protection Act.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2002.

   Opinion by

Judge GRAHAM.

Defendant, Security Life of Denver Insurance Company, appeals from the judgment entered against it and in favor of plaintiff, William K. Coors. Coors also cross-appeals a portion of the judgment. We affirm in part, reverse in part, and remand.

On December 8, 1994, Coors, accompanied by his attorney, met with an insurance agent to purchase life insurance. Coors and his attorney reviewed sales illustrations for a Security Life Ultra UL policy with a death benefit of $5.2 million and a projected annual premium of $331,871. The illustrations applied to a seventy-eight-year-old male, nonsmoker. The expense charge term is based upon actuarial computation, which varies depending on age, gender, and smoking status. The expense term was never discussed in the negotiations and is used in calculating the cash surrender value of the policy. Coors 'signed an application for an Ultra UL policy with the illustrated death benefit and projected annual premium and tendered a check for the first premium of the policy.

The policy became effective on December 15, 1994. It provided that the monthly expense charges were $7.00 per policy per month in all years and $.131 per $1,000 of basic death benefit per month during the first five years of the policy. The policy also contained a face page dated December' 15, 1994, which provided Coors a twenty-day right to review and return the policy once he had initially accepted it. When Coors received the policy, he never reviewed it because he “assumed that it was what [he] had bargained for.”

Security Life then sent Coors a disclosure statement that stated that the monthly expense charges were $7.00 per policy per month in all years and $.90 per $1,000 of basic death benefit per month during the first five policy years. Coors did not review the disclosure statement.

Each month for approximately three and one-half years, Security Life charged $.90 per $1,000 of basic death benefit, or $2340 per month, to Coors’s policy. Thus, the cash surrender value was diminished. Although Coors received annual statements in 1995, 1996, and 199.7 that reflected the total expense charges deducted each year based on a $.90 expense charge, he did not review them. Coors paid the $331,871 premium every year from 1994 to 1997.

Security Life did not notice that Coors’s policy erroneously provided for a $.131 expense charge until February 1997. In October 1997, Security Life learned that a “computer truncation error” had mistakenly printed the $.131 expense charge on 227 UL Ultra policies, including Coors’s policy. Security Life’s general counsel concluded that the misprint was a scrivener’s error, which could be reformed.

In spring 1998, Coors’s estate planning attorney asked Coors’s insurance agent whether the $.90 expense charge term was guaranteed. After verifying the information with a claims representative of Security Life, a representative of the insurance agency wrote a letter to Coors’s attorney stating that the expense charge term was $.131 per thousand of basic coverage and that it was guaranteed and not subject to change. The insurance agency Representative testified that she did not know what documents Security Life relied upon when it verified the policy information; she did not know that there was a discrepancy between the policy and the disclosure statement; and she did not alert Security Life to the discrepancy.

In June 1998, Security Life drafted a letter to Coors notifying him of the error (the June letter). Security Life enclosed a new schedule page reflecting the $.90 expense charge and also enclosed a new policy face page that contained the same twenty-day review provision and date as the original face page.

Coors received the letter in July 1998, and on the same day he requested a rescission of his policy and demanded a refund of all premiums paid, with interest, from the inception of the policy. Security Life informed Coors that the June letter neither required action on his part nor triggered a new twenty-day review period. Security Life explained to Coors that the new face page containing the twenty-day review provision was identical to the face page issued with the policy in 1994, although the signatures on the two face pages differed.

Coors then requested a surrender of his policy and demanded payment. Security Life issued Coors a check for $667,025.03, which represented the surrender value of his policy — the account value less a termination penalty of $112,762.19.

Coors filed an action against Security Life for breach of contract, bad faith breach of contract, fraud, violation of the Colorado Consumer Protection Act (CCPA), § 6-1-101, et seq., C.R.S.2002, and punitive damages. After a bench trial, the court ruled in favor of him on all counts and awarded Coors $1,085,506.73 in total damages, which included treble damages and attorney fees. This appeal followed.

I. CCPA

Security Life contends that the trial court erred in finding that its conduct constituted a violation of the CCPA. We agree.

Findings of fact are reviewed for clear error or abuse of discretion, whereas conclusions of law generally are reviewed de novo. E-470 Pub. Highway Auth. v. 455 Co., 3 P.3d 18 (Colo.2000). We must accept the trial court’s findings on review unless they are so clearly erroneous as not to find support in the record. Bainbridge, Inc. v. Bd. of County Comm’rs, 53 P.3d 646 (Colo.App.2001).

We are mindful of the instruction provided in Stevens v. Humana of Delaware, Inc., 832 P.2d 1076 (Colo.App.1992), and Municipal Subdistrict v. OXY USA, Inc., 990 P.2d 701 (Colo.1999), that the near wholesale adoption of one party’s proposed findings of fact and conclusions of law requires this court to give close scrutiny to those findings and conclusions. Because the trial court adopted nearly all of Coors’s proposed order, we therefore closely -scrutinize its findings and conclusions here.

The CCPA is a remedial statute intended to deter and punish deceptive trade practices committed by businesses in dealing with the public. Showpiece Homes Corp. v. Assurance Co., 38 P.3d 47 (Colo.2001). The CCPA’s broad legislative purpose is “to provide prompt, economical, and readily available remedies against consumer fraud.” W. Food Plan, Inc. v. Dist. Court, 198 Colo. 251, 256, 598 P.2d 1038, 1041 (1979). The statute provides both for enforcement by the attorney general and for a private right of action by any person injured by the deceptive acts or practices committed by a business. Showpiece Homes Corp. v. Assurance Co., supra.

To prove a private cause of action under the CCPA, a plaintiff must show that: (1) the defendant engaged in an unfair or deceptive trade practice; (2) the challenged practice occurred in the course of the defendant’s business, vocation, or occupation; (3) the challenged practice significantly impacts the public as actual or potential consumers of the defendant’s goods, services, or property; (4) the plaintiff suffered injury in fact to a legally protected interest; and (5) the challenged practice caused the plaintiffs injury. Hall v. Walter, 969 P.2d 224, 235 (Colo.1998).

The terms of the CCPA must be given a liberal construction to effectuate its broad purpose and scope. Hall v. Walter, supra. Thus, in determining whether conduct falls within the purview of the CCPA, courts presume that the CCPA applies to the conduct. Showpiece Homes Corp. v. Assurance Co., supra.

The trial court found that Security Life engaged in unfair or deceptive trade practices by: (1) stating in its June letter to Coors that “the values of your policy have always been accurately calculated and reported on your annual statements”; (2) deducting $2340 per month from Coors’s cash surrender account instead of $340.60; (3) billing Coors in December 1997 for a premium that it knew in October 1997 was falsely calculated based on an inaccurate expense charge factor; (4) publishing Coors’s annual statements containing false and misleading information concerning the value of the policy based upon the inaccurate expense charge; (5) providing Coors a twenty-day right to review the policy provision while never intending to honor it; (6) failing to clarify false and misleading statements with respect to the expense charge factor when it knew in November 1997 that such statements were false; (7) stating in its June letter that all the illustrations and cost disclosures presented during the sales process were correct; (8)implementing a false and misleading scheme to unilaterally change 227 policies and to avoid its obligation to refund $21.7 million to affected policyholders; (9) making false representations to policyholders regarding the effect of the computer truncation error; (10) expressly guaranteeing to Coors that his expense charge term was $.131 and not subject to change, and then expressly disavowing its guarantee; and (11) warranting that the premiums were accurately calculated in bills, statements, annual reports, and illustrations.

The trial court concluded that these actions violated § 6-1-105(1)(e), (l), and (r) of the CCPA and found that Coors paid excessive expense charges from December 15, 1997, through the remaining term of his policy. The court also held that the purpose of the false and misleading statements was to deceive Coors into believing that his insurance cost $2,000 more per month than it actually did. Finally, the trial court noted that the challenged practices occurred in the course of Security Life’s business and had “the potential to significantly impact the public as actual or potential consumers of insurance.”

A. Lack of Public Impact

We leave for another day the question whether the trial court’s findings regarding Security Life’s conduct reflect the type of unfair or deceptive trade practice contemplated by the CCPA. Instead, here we conclude that public impact was not proven as a matter of law.

Relevant considerations in determining whether a challenged practice significantly impacts the public within the context of a CCPA claim include: (1) the number of consumers directly affected by the challenged practice; (2) the relative sophistication and bargaining power of the consumers affected by the challenged practice; and (3) evidence that the challenged practice has previously affected other consumers or has the significant potential to do so in the future. Rhino Linings USA, Inc. v. Rocky Mountain Rhino Lining, Inc., 62 P.3d 142 (Colo.2003).

Although Coors presented evidence that Security Life sent approximately 200 out of 20,000 policyholders similar June letters regarding the computer error, there was no more evidence before the trial court regarding the other policyholders. Nor did the trial court make specific or detailed findings about how the public might have been impacted by Security Life’s actions; it made only a cursory conclusion that Security Life’s actions “had the potential to significantly impact the public as actual or potential consumers of insurance.” Depending on the ages and smoking status of the of the other policyholders, the expense charge could have been de minimis. Furthermore, the court never determined whether 200 affected policyholders out of 20,000 represents a sufficient segment of the public to warrant a conclusion that Security Life’s acts significantly impacted the public, and we conclude that an impact on at most one percent of the policyholders could not constitute public impact.

In addition to the challenged conduct being private in nature, Coors was a sophisticated businessman and was accompanied by counsel during the sales process for the policy. The situation of the other policyholders in this regard is unknown.

For these reasons, we conclude that there was no substantial evidence of significant public impact in this case. Accordingly, the judgment on the CCPA claim must be reversed.

B. Lack of Per Se Violation

We also agree with Security Life’s contention that the trial court erred in concluding that a violation of the Colorado Unfair Claims-Deeeptive Practices Act (UCDPA) constitutes a deceptive trade practice under § 6-1-105(1) and is therefore a per se violation of the CCPA.

The trial court found that Security Life violated the UCDPA, § 10-3-1104(1)(a)(I) and (VI), C.R.S.2002, by adopting a false and misleading scheme to induce Coors to accept a unilateral change to his express insurance policy, denying Coors a refund for his charges, and charging Coors a termination fee. The trial court concluded that, because “the UCDPA is to work in tandem with the CCPA, a violation of the express terms of the UCDPA must be construed as a violation of the CCPA.” It also held that Security Life engaged in unfair or deceptive trade practices by violating the provisions of the UCD-PA.

The UCDPA regulates unfair or deceptive trade practices in the insurance industry. Showpiece Homes Corp. v. Assurance Co., supra. The legislative purpose of the UCD-PA is “to regulate trade practices in the business of insurance by defining, or providing for the determination of, all such practices in this state which constitute unfair methods of competition or unfair or deceptive acts or practices, and by prohibiting the trade practices so defined or determined.” Section 10-3-1101, C.R.S.2002:

The UCDPA vests the insurance commissioner with power to investigate specifically defined acts and practices of insurers and to enforce regulatory penalties, such as limited monetary penalties and the suspension or revocation of licenses. Section 10-3-1108, C.R.S.2002. However, unlike the CCPA, no private right of action may be maintained under the UCDPA. Section 10-3-1114, C.R.S.2002; Schnacker v. State Farm Mut. Auto. Ins. Co., 843 P.2d 102 (Colo.App.1992); Farmers Group, Inc. v. Trimble, 658 P.2d 1370 (Colo.App.1982), aff'd, 691 P.2d 1138 (Colo.1984).

Although Coors did not, and had no right to, bring a cause of action under the UCDPA, the trial court nevertheless concluded that Security Life violated specific provisions of the UCDPA and that such violation constituted a deceptive trade practice under § 6-1-105 of the CCPA.

The version of § 6-1-113(1) of the CCPA that was in force at the time of the alleged conduct provided that “The provisions of this article shall be available in a civil action for any claim against any person who has engaged in ... any deceptive trade practice listed in section 6-1-105 or 6-1-105.5.” Colo. Sess. Laws 1987, ch. 42 at 360. Section 6-1-113(1), C.R.S.2002, as amended in 1999, now provides that “The, provisions of this article shall be available in a civil action for any claim against any person who has engaged in ... any deceptive trade practice listed in this article.”

Our primary task in construing a statute is to ascertain and give effect to the intent of the General Assembly. To discern legislative intent, a court should look first to the statutory language. Statutory words and phrases should be given their plain and ordinary meaning. Town of Parker v. Colo. Div. of Parks & Outdoor Recreation, 860 P.2d 584 (Colo.App.1993).

According to the plain language of the relevant version of the statute, a deceptive trade practice includes only those acts identified in § 6-1-105. In Hall v. Walter, supra, the supreme court stated that the first step in proving a CCPA claim “requires the plaintiff to establish conduct by the defendant that constitutes a deceptive trade practice.” Hall v. Walter, supra, 969 P.2d at 234. The court specifically referenced § 6-1-105 as “identifying and defining deceptive trade practices.” Hall v. Walter, supra, 969 P.2d at 234.

We reject Coors’s argument that § 6-1-105(3), C.R.S.2002, recognizes that there may be unfair trade practices actionable under the CCPA which are not specifically enumerated in § 6-1-105(1). Section 6-1-105(3) states that the “deceptive trade practices listed in this section are in addition to and do not limit the types of unfair trade practices actionable at common law or under other statutes of this state.” The plain language of the statute expresses that, although an action brought under the CCPA must be for a deceptive trade practice expressly enumerated in § 6-1-105(1), conduct not expressly enumerated in § 6-1-105(1) may be actionable as an unfair trade practice under a different legal theory or statute, including an action brought by the insurance commissioner under the UCDPA. See Lexton-Ancira Real Estate Fund, 1972 v. Heller, 826 P.2d 819, 825 (Colo.1992)(the language in § 6-1-105(3) “does not preclude claimants from bringing other causes of action”).

Coors also relies on Showpiece Homes for the proposition that the list of deceptive trade practices enumerated in § 6-1-105(1) is not exhaustive. In Showpiece Homes, the supreme court answered four abstract legal questions certified by the United States District Court pursuant to C.A.R. 21.1:(1) whether a private cause of action by an insured against an insurer under the CCPA is preempted by the UCDPA; (2) whether the insurance industry is excluded from the provisions of the CCPA; (3) whether insurance encompasses the sale of goods, services, or property under the CCPA; and (4) whether the CCPA applies to an insurer’s postsale unfair or bad faith conduct. The court answered the first two questions in the negative and the last two questions in the affirmative.

In so holding, the supreme court noted that the “CCPA is meant to work in tandem with other regulatory provisions in the Colorado statutes, and as such, works in conjunction with, not to the exclusion of, the UCDPA.” Showpiece Homes Corp. v. Assurance Co., supra, 38 P.3d at 49. The court reasoned that:

The CCPA does not list all the industries to which it applies, nor does it specify all the types of transactions it covers. In enacting the statute, the General Assembly could not have possibly enumerated all, or even most, of the practices that the CCPA was intended to cover. See FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 240, 92 S.Ct. 898, 31 L.Ed.2d 170 (1972)(“It is impossible to frame definitions which embrace all unfair practices. There is no limit to human inventiveness in this field. Even if all known unfair practices were specifically defined and prohibited, it would be at once necessary to begin over again.... [I]t would undertake an endless task.”). Instead, the General Assembly focused on prohibiting, in very general terms, those actions that are likely to injure the public. If we were to decide that the only practices covered are those specifically listed in the act, we would be severely hindering the CCPA’s broad remedial power. We find that the list in section 6-1-105 is not eschaustive and because deceptive or unfair practices in the business of insurance could clearly injure the public they are within the purview of the CCPA.

Showpiece Homes Corp. v. Assurance Co., supra, 38 P.3d at 54.

Contrary to Coors’s contention, Showpiece Homes did not hold that other conduct not enumerated in § 6-1-105 may constitute a deceptive trade practice under the CCPA. Furthermore, the quoted reasoning concerned the question of whether insurance companies and insurance transactions are within the purview of the CCPA even though they are not specifically mentioned in § 6-1-105 and are regulated by the state with rules and guidelines which bar deceptive conduct not necessarily enumerated in the CCPA. Thus, in our view, the holding in Shoivpiece Homes is limited to the conclusion that insurance companies and insurance transactions will be covered by the CCPA if the requirements of Hall are met.

There is also no language in the CCPA providing that a UCDPA violation constitutes a per se violation of the CCPA. In our view, Showpiece Homes does not overrule the holding in Hall that the first step in proving a CCPA claim requires the plaintiff to establish conduct by the defendant that constitutes a deceptive trade practice identified in § 6-1-105. Nor does Showpiece Homes overrule the other four requirements set forth in Hall.

Accordingly, we conclude that Security Life did not violate the CCPA.

II. Reformation

Security Life next contends that the trial court erred in finding that it was not entitled to reformation because the computer truncation error was a unilateral mistake made by Security Life. We disagree.

The trial court concluded that:

Coors had nothing to do with the Computer Truncation Error. Coors could not have known what expense charge Security Life may have intended to charge him. The expense charge term was a profit component of the policy. It was determined during the pricing process of the policy. There is no evidence in this case that Security Life was willing to share information in regard to its profit. Since Coors had no knowledge of the $.90 expense charge, there could be no agreement to it.... [T]he sales illustrations do not mention the expense charge term. Coors could not derive the $.90 expense charge term from the illustrations.

The court reasoned that Security Life sought to change the expense charge term “not to reflect what was actually agreed to,” but “to reflect what it intended to include in the policy, but did not.”

The trial court held that the expense charge term was not a standard term of the policy, but a profit component that varied by age, gender, and smoking status. The court found that the evidence demonstrated that, although Security Life had a table that reflected the expense charge it intended to charge, it did not use this table in preparing Coors’s policy, and instead calculated the expense charge term and made a mistake in performing this calculation. The court concluded that Security Life’s computer truncation error was a unilateral error which could not be reformed.

While scrivener’s errors may be reformed as mutual mistakes, we recognize that the trial court is in the best position to determine the equitable right to reformation, and we therefore affirm the trial court’s ruling barring reformation. Where scrivener’s errors occur, the error may be a mutual mistake because both parties erroneously conclude that the document they signed is correct. Hanes v. Roosevelt Nat’l Life Ins. Co., 116 Ill.App.3d 411, 72 Ill.Dec. 232, 452 N.E.2d 357 (1983). Thus, reformation was an appropriate remedy for Security Life to pursue, but the remedy is foreclosed if the party seeking it is not entitled to equity. See Salzman v. Bachrach, 996 P.2d 1263 (Colo.2000). Thus, the trial court acted within its discretion in finding that Security Life violated a regulatory provision under the UCDPA and thereby forfeited its right to seek reformation. The trial court was in the best position to balance the relative equities, and we will not disturb its judgment.

III. Breach of Contract

Security Life contends that the trial court erred in finding that it breached its promise to use a $.131 expense charge. We disagree.

A. Overcharge

We first agree with the trial court that Security Life’s use of the $.90 expense charge constituted a material breach.

To prevail on a claim for breach of contract, a party must show a contract was in existence and that the other party failed to perform some term of the contract. Spencer Invs., Inc. v. Bohn, 923 P.2d 140 (Colo.App.1995). The interpretation of a contract is a question of law that we review de novo. Rocky Mountain Health Maint. Org., Inc. v. Colo. Dep’t of Health Care Policy & Fin., 54 P.3d, 913 (Colo.App.2001).

Whether a party has substantially performed under a contract necessarily turns on whether that party has materially breached the contract because material breach renders substantial performance impossible. Whether there has been a material breach is a question of fact. Interbank Invs., L.L.C. v. Vail Valley Consol. Water Dist., 12 P.3d 1224 (Colo.App.2000). Thus, we may disturb the trial court’s finding only if it is clearly erroneous and not supported by the record.

In determining whether a breach is material, the trier of fact should consider whether the injured party received substantial benefit and the adequacy of compensation in damages for the breach. Kaiser v. Mkt. Square Disc. Liquors, Inc., 992 P.2d 636 (Colo.App.1999).

Although the expense charge was not negotiated, it nevertheless became a term in the contract, thereby obligating Security Life to burden the policy with a charge of $.131 per $1,000 of premium. Where obligations under a contract are material, neither party is excused “from complete performance until- each has tendered performance as obligated under the contract and demanded performance of the other.” Harris v. Hanson, 821 P.2d 821, 822 (Colo.App.1991). Although Security Life may have performed the central purpose of the agreement by insuring Coors’s life, it was not discharged from complying with other contract terms. Thus, the trial court was correct in determining that a material breach occurred. See, e.g., Osteen v. Johnson, 473 P.2d 184 (Colo.App.1970)(not published pursuant to C.A.R. 35(f)). The trial court also found that the proper measure of damages was $89,973, representing the added cash value of the account if Security Life had used the $.131 expense charge.

B. Termination' Penalty

However, we conclude that the trial court erred in holding that Security Life was not entitled to a termination penalty upon Coors tendering his policy.

The record discloses that, at all times pertinent, a valid contract of life insurance for $5.2 million was in place, obligating Security Life to pay the face amount of the policy in the event of Coors’s death. Security Life serviced the policy and collected annual premiums.

The court found that the expense charge overcharge had a “material impact” upon the performance of the policy. Inconsistently, the trial court found, with record support, that it would be inappropriate for Coors to receive “3½ years of free insurance” and that “Security Life has in fact conferred some benefit on [Coors] by providing insurance for the term in which the policy was in effect.” The trial court cited Torke v. Federal Deposit Insurance Corp., 761 F.Supp. 754, 757 (D.Colo.1991), for the proposition that “[a] party to a contract cannot claim its benefits where he is the first to violate its terms.” In fact, Tórke is a D’oench doctrine case involving FDIC rules and regulations. The proposition relied upon by the trial court, expressed as dicta in Torke, is actually based on the notion that a party who is in breach may not maintain an action against the other party for failure to perform. Navato v. Sletten, 560 F.2d 340 (8th Cir.1977). This principle is based upon the equitable principle of estoppel. If, as the trial court held, Security Life is not barred from keeping the premiums under the policy, there is no justification for barring it from invoking the forfeiture provisions upon early termination which Coors promised to pay. The trial court did not reconcile this inconsistency, and there is no record support for it.

Thus, the trial court erred in refusing to allow Security Life to keep the agreed termination fee, and that portion of the judgment must be reversed.

C. Twenty-Day Right of Review

We next determine that the twenty-day right of review language in the replacement face sheet of the June letter did not create a new contract, and the trial court erred in concluding otherwise. Thus, this language did not allow Coors a new twenty-day period in which to rescind the policy.

The replacement face page was the same as the original face page sent and had the same date — December 15,1994.

The trial court determined that the language on the face sheet created a new and separate contract “that gives the policyholder the right to refund of premiums paid after receipt of the new 20 day right to examine notice.” The trial court found that Security Life printed the new face page as part of a “scheme” to “unilaterally change the policy,” and “included [it] with the June ... letter for the purpose of providing Security Life with a regulatory or market conduct compliance explanation in the event of an investigation.”

The record, however, indicates that Security Life did not intend for this face page to create a new twenty-day right to review, but instead sent the face page to assist Coors in locating the correct policy. This intent is evidenced by a later, July 1998 letter to Coors explaining that the June letter “did not require any action on his part nor trigger a twenty day review period for which Mr. Coors would need to take any action:”

Nothing in the record supports the trial court’s finding that a valid agreement created a new twenty-day right to review the existing 1994 policy. If Security Life sent the new face sheet as an attempt to satisfy a regulatory inquiry, it did not constitute a valid offer because there was no intent to enter a contract. In contrast, if Security Life sent the face page as an offer to “unilaterally change the contract,” Coors rejected that offer when he tendered the policy for a refund. Thus, there is no evidence that Security Life offered, and Coors accepted, an opportunity essentially to rescind the policy and be repaid the premiums.

Accordingly, when Coors chose to surrender his policy, Security Life properly paid him the surrender value minus the termination fee in compliance with the policy provisions.

Because we have determined that Coors was not entitled to a new twenty-day right to review his policy in 1998, we need not address Coors’s argument on cross-appeal that he was entitled to a refund of all premiums paid from the inception of the policy.

IV. Fraud

We find no error in the court’s determination that Security Life’s conduct with respect to the 1997 premium payment constituted fraud by omission.

One commits fraud when he makes a false representation of a material existing fact, knowing that it is false, with intent that it be acted upon, and the person to whom the representation is made, in ignorance of the truth, relies upon the misrepresentation. Morrison v. Goodspeed, 100 Colo. 470, 68 P.2d 458 (1937). One may also commit fraud by concealing material existing facts that in equity and good conscience ought to be revealed. Morrison v. Good-speed) supra. Of course, the representation or concealment must result in damages. Brody v. Bock, 897 P.2d 769 (Colo.1995).

Here, the findings are contradictory, but nevertheless support the finding of fraud. The trial court found that Security Life concealed its intent not “to abide by the express terms of [Coors’s] insurance policy” and also concealed its overcharge of expense charges from the inception of the policy. The court further found that “Coors paid his December, 1997 premium in the amount of $331,871 in reliance upon his belief that Security Life had abided by, and would abide by, the express terms of the insurance contract.”

The damages were found to be “overpayment of expense charges from December 15, 1997 (the date Security Life continued to charge him an inaccurate premium knowing it factored in an excessive expense charge) [through the date of termination] together with interest.” The court found that Coors was “further damaged by having paid a termination penalty which he should not have paid.” The court also found fraud in Security Life refusing to allow Coors to terminate the policy under the twenty-day right to review provision on the substitute face page.

The court did not calculate damages, but noted that they would not include the premium paid in December 1997 because Coors “received the benefit of the policy coverages.” The court relied on other damages awarded under the breach of contract and other claims, which also did not include the December 1997 premium.

Although it is apparent that Coors received a disclosure of the $.90 per $1,000 of premium charge, the annual statements he received did not repeat that disclosure. Although Security Life accurately disclosed the actual charges, a review would not have revealed the amount of the expense charge used unless one were to do mathematical computations, because the annual reports simply included expense totals. And, although Coors’s counsel was easily able to determine that the charge was $.90, this did not occur until spring 1998. Further, even though Security Life may have been entitled to pursue a reformation claim, it chose not do so, at least initially. Rather than seek reformation relief by way of a request for a declaratory judgment, it chose to pursue a course that the trial court determined did not comport with equity and good conscience.

In accordance with our other conclusions herein, Coors was not damaged by payment of a termination fee or by Security Life’s refusal to allow him to terminate under the twenty-day right to review provision. Thus, the damages for Security Life’s fraudulent concealment are limited to the excess expense charges from December 1997 to the date of termination, and to the extent that those damages are not already included in the award for breach of contract, they should be added to that award, together with interest.

V. Punitive Damages and Attorney Fees

Finally, in light of our conclusions herein, we determine that there is no basis for awarding punitive damages.

Close review of the trial court’s findings and conclusions indicates that, although the court commented that certain conduct might warrant the imposition of punitive damages, it actually awarded treble damages in accordance with the CCPA. The trial court stated:

[B]ecause Security Life has violated several provisions of the [CCPA], Coors will be awarded treble damages, costs and attorneys’ fees.... The purpose of the punitive damage statute would be well served by the imposition of punitive damages against Security Life in this ease.... Because treble damages will be awarded to Coors under his CCPA claims, an award of treble punitive damages would be duplicative. Treble punitive damages, however, would be appropriate under the facts and circumstances of this case.... Notwithstanding its conduct in the course of discovery, the deceptive trade practices Security Life engaged in ... standing alone, support an award of treble punitive damages pursuant to C.R.S. 13 — 21—102(3)(b).

In light of our ruling regarding the CCPA violations, the treble damage award must be reversed.

Moreover, to the extent that punitive damages are intended to be a sanction for a discovery violation, nothing in the record supports a sanction of this magnitude. The trial court made no findings regarding discovery violations in its findings of fact and conclusions of law. The award of punitive damages and attorney fees is reversed and vacated.

The judgment is reversed as to the CCPA claim and as to the awards for the termination penalty, treble damages, punitive damages, and attorney fees. In all other respects, the judgment is affirmed. The case is remanded to the trial court for such further proceedings as may be necessary to enter an amended judgment consistent with this opinion.

Judge NIETO and Judge RULAND concur.