McCurdy v. Copart

24CA0954 McCurdy v Copart 05-29-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0954
Adams County District Court No. 21CV31133
Honorable Sarah E. Stout, Judge

Courtney McCurdy,

Plaintiff-Appellee,

v.

Copart, Inc.,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE WELLING
Kuhn and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 29, 2025

Ramos Law, Matthew R. Osborne, Northglenn, Colorado; Jennifer Mrachek,
Golden, Colorado, for Plaintiff-Appellee

Brown Gren Abraham & McCracken, LLC, Joshua D. Brown, Andrew J. Royer,
Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Copart, Inc., appeals the judgment in favor of

plaintiff, Courtney McCurdy, for fraudulent nondisclosure or

concealment1 and violating the Colorado Consumer Protection Act

(CCPA). We affirm in part, reverse in part, and remand to the trial

court for further proceedings.

I. Background

A. McCurdy’s Injury

¶2 McCurdy’s claims in this case stem from her purchase of a

trailer that had previously been damaged in an accident in

Michigan. After the accident, Auto Club Insurance Association

(AAA)2 declared the trailer a “total loss,” paid out an insurance

claim to the owner for the full value of the of the trailer, and took

possession of it.

1 As a shorthand, throughout this opinion, we refer to this claim as

“fraudulent nondisclosure.”
2 According to the second amended complaint, Auto Club Insurance

Association (ACIA) sells insurance in Michigan, and CSAA General
Insurance Company (CSAA) is a sister company of ACIA that sells
insurance policies in Colorado. ACIA and CSAA both “fall under the
AAA umbrella of companies” and “use the AAA logo on
communications to third parties.” Based on this and because the
distinction between these two entities isn’t material to this appeal,
we refer to them both as AAA throughout this opinion.

1
¶3 Copart is an auction marketplace that remarkets and consigns

vehicles. Copart has an agreement with AAA giving it the right to

sell “totaled out” vehicles for AAA. Depending on the contract,

Copart also handles titling for the seller. As part of its contract with

AAA, Copart agreed to title the trailer, but Copart never owned the

trailer.

¶4 After AAA took possession of the trailer, it told Copart to

“brand [the trailer] per state guidelines.” Then, AAA sold the trailer

through a Copart auction to Lakewood RV, a company located in

Missouri. The auction disclosed “primary damage to the top roof

and secondary minor dent damage.”

¶5 After receiving the trailer, Lakewood RV inspected it and

decided to resell the trailer through a Copart auction. This time the

auction listed the trailer as having damage to the “top roof.” The

winning bidder at the auction was Mac Scooters. But Mac Scooters

quickly had the transaction reversed complaining of “unlisted

damage of the undercarriage [or] frame making it unable to be

[pulled].”

¶6 The trailer was then sold again through another Copart

auction to APB Motors, a company located in Colorado. This time

2
Copart disclosed “top roof” and “frame damage.” APB Motors

brought the trailer to Colorado.

¶7 After receiving the trailer, APB Motors inspected it and found

“too much damage that was not visible initially,” so it consigned or

sold the trailer in another Copart auction to RV Trailers of America,

a company located in Colorado. The consignment agreement and

auction listed frame damage. But RV Trailers of America made the

decision to again sell the trailer through yet another Copart

auction. This time Scarpa Motors, a company located in Colorado,

was the winning bidder. The auction at which Scarpa Motors

acquired the trailer listed it only as having “minor dents and

scratches.”

¶8 Each time the trailer was sold with a clean title and “as-is,” “as

where is,” without any warranties. Scarpa eventually sold the

trailer to McCurdy. Copart wasn’t directly involved in the sale of

the trailer to McCurdy.

¶9 When McCurdy and her husband (collectively, the McCurdys),

first used the trailer, they noticed that the “tires were rubbing on

the underside of the wheel well.” The McCurdys took the trailer

back to Scarpa and agreed with Scarpa to split the cost of repairs.

3
¶ 10 After Scarpa made repairs to the trailer, the McCurdys took

the trailer out again, this time over Monarch Pass. McCurdy’s

husband was driving, and he later testified that, at the bottom of

the pass, “it felt like the brakes were either hot or locked up or

something wasn’t right.” McCurdy’s husband couldn’t find a place

to pull over, so he had to keep driving and noticed that “the tire

started smoking.” Eventually, he found a place to pull over on the

side of a two-lane stretch of Highway 50 that was “about [thirty]

miles from Monarch Pass.” McCurdy’s husband testified that where

he pulled off “was actually an embankment that sloped down so the

trailer was leaning to the side.” According to McCurdy’s husband,

he saw that “the tires from the axles were rubbing together and

that’s what was causing the smoke.” The McCurdys didn’t have cell

phone service where they had stopped, so they had to keep driving

until they reached a gas station to call for a tow. The McCurdys

also contacted their insurance company, AAA, to file a claim, but

the claim was never paid because “the trailer was already totaled.”

The McCurdys placed the trailer in storage and didn’t drive it again

or repair it.

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B. Procedural History

¶ 11 McCurdy initially filed suit against Scarpa, APB Motors, and

RV Trailers of America. She then amended her complaint to include

Copart and AAA. APB Motors wasn’t a listed defendant in the first

amended complaint and the claims against it were eventually

dismissed. McCurdy then filed a second amended complaint

bringing claims against Copart for (1) fraudulent nondisclosure for

auctioning the trailer with a clean title and misrepresenting the

frame damage and (2) violations of the CCPA for failing to apply for

a salvage title and misrepresenting the damages to the trailer. The

claims against Scarpa and AAA were eventually settled.

¶ 12 RV Trailers of America and Copart filed separate motions for

summary judgment. In its motion, Copart requested the entry of

judgment on both the fraudulent nondisclosure and CCPA claims.

In an order addressing both motions, the court granted summary

judgment in favor of RV Trailers of America, dismissing the claims

against it, and partially granted summary judgment in favor of

Copart, finding that McCurdy couldn’t prevail on a fraudulent

nondisclosure claim for the frame damage against Copart.

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¶ 13 The surviving claims against Copart proceeded to trial. After a

four-day trial, the jury found in favor of McCurdy and against

Copart on both the fraudulent nondisclosure and CCPA claims.

The jury awarded her a total of $700,000 in economic and

noneconomic damages. The jury also found by clear and

convincing evidence that Copart had acted in bad faith.

¶ 14 After trial, McCurdy requested the court treble the awarded

damages because the jury had found that Copart violated the CCPA

and acted in bad faith. In addition to objecting to McCurdy’s

motion, Copart filed a motion for a new trial on the grounds that

there were irregularities in the jury instructions, the damages were

excessive, and the court erred by failing to require the jury to

delineate damages between the two claims on the verdict form. The

trial court denied Copart’s motion for a new trial and entered an

amended order of judgment. In the amended order of judgment, the

court amended the damages, ruling as follows:

Judgment is hereby entered in favor of
[McCurdy] in the amount of $2,002,920.84.
This is calculated based on the $700,000 in
damages awarded by the jury and reflects both
the imposition of the noneconomic cap as
required by [section] 13-21-102.5(3)(a)[, C.R.S.

6
2024,] and the mandatory trebling as required
by [section] 6-1-113(2)(a)(III)[, C.R.S. 2024].

¶ 15 While the amended judgment didn’t explain the trial court’s

calculation of damages, in its order denying Copart’s motion for a

new trial, the trial court explained that the verdict had to be

amended to reflect “$53,880.28 in economic damages as supported

by the evidence plus the noneconomic statutory cap of

$613,760.00,” which was then subject to “the mandatory trebling

as required by [section] 6-1-113(2)(a)(III).”

II. Analysis

¶ 16 On appeal, Copart contends that the trial court erred by

(1) denying its motion for summary judgment; (2) denying its

motion for directed verdict on McCurdy’s fraudulent nondisclosure

and CCPA claims; (3) denying its motion for a new trial based on

irregularities in the jury instructions and excessive damages; and

(4) trebling the entire $667,640.28 damages award after failing to

7
require the jury to delineate damages on the verdict form.3 We

address each contention in turn below.

A. Motion for Summary Judgment

¶ 17 Copart contends that the trial court erred by denying its

motion for summary judgment. As part of this contention, Copart

argues that McCurdy didn’t have standing to bring the case against

it. We aren’t persuaded.

1. Additional Background

¶ 18 Before trial, Copart filed a motion for summary judgment

arguing that McCurdy didn’t have standing to bring the fraudulent

nondisclosure or CCPA claim, that the fraudulent nondisclosure

claim should fail as a matter of law, and that McCurdy couldn’t

prove her CCPA claim. The trial court granted the motion in part,

3 McCurdy’s request for an award of attorney fees remains pending

before the trial court. In addition to the other issues it raises on
appeal, Copart also contends that we should “make [a] finding” that
the still-pending motion for attorney fees is or has been denied. For
reasons we explain infra Part II.E, we decline to address any
matters related to attorney fees, as those issues aren’t properly
before us. But also we note that the pending but unresolved motion
for attorney fees doesn’t affect the finality of the judgment or our
jurisdiction over the other issues raised on appeal. See L.H.M.
Corp., TCD v. Martinez, 2021 CO 78, ¶ 30 (“[A] judgment on the
merits is final and appealable notwithstanding an unresolved issue
of attorney fees.”).

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concluding that the fraudulent nondisclosure claim based on the

trailer’s frame damage must be dismissed. The trial court denied

summary judgment on the fraudulent nondisclosure claim as to

title and the CCPA claim.

2. Standard of Review and Legal Principles

¶ 19 We review a trial court’s grant of summary judgment de novo

and apply the same standard as the trial court. S. Cross Ranches,

LLC v. JBC Agric. Mgmt., LLC, 2019 COA 58, ¶ 11; CadleRock Joint

Venture LP v. Esperanza Architecture & Consulting, Inc., 2021 COA

119, ¶ 9. But “[a] denial of a motion for summary judgment is not a

final determination on the merits and, therefore, is not an

appealable order.” Tisch v. Tisch, 2019 COA 41, ¶ 47 (alteration in

original) (quoting Karg v. Mitchek, 983 P.2d 21, 25 (Colo. App.

1998)). Further, the denial of a motion for summary judgment isn’t

appealable after a final judgment. Id. Thus, “to preserve an issue

raised in a denied motion for summary judgment, a party must

raise the issue in a motion for a directed verdict or judgment

notwithstanding the verdict.” Id. at ¶ 48. Notwithstanding these

principles, standing “is a jurisdictional issue which can be raised at

9
any stage of an action, including the appeal.” Bennett v. Bd. of Trs.

for Univ. of N. Colo., 782 P.2d 1214, 1216 (Colo. App. 1989).

¶ 20 Because Copart can’t appeal the trial court’s denial of

summary judgment, we decline to address whether the trial court

erred by denying summary judgment on any issues raised other

than standing. But we do address whether McCurdy had standing

to bring the fraudulent nondisclosure and CCPA claims against

Copart. We conclude that she did.

3. Standing

¶ 21 To establish standing in Colorado, a plaintiff “must have

(1) suffered an injury in fact (2) to a legally protected interest.”

Roane v. Elizabeth Sch. Dist., 2024 COA 59, ¶ 25.

¶ 22 According to Copart, McCurdy lacked standing to bring the

fraudulent nondisclosure and CCPA claims against it because she

didn’t have a legally protected interest related to Copart. Recall,

Copart never owned the trailer, had any contact with McCurdy, or

made any representations to her, and it ultimately facilitated the

final sale of the trailer to Scarpa (not McCurdy). Copart contends

that this lack of privity between Copart and McCurdy, as well as the

existence of an “as-is” exculpatory clause in Copart’s “Member

10
Terms and Conditions,” deprived McCurdy of any legally protected

interest that could give rise to a claim by her against Copart. We

address both contentions separately.

a. Privity

¶ 23 First, we address Copart’s contention that McCurdy didn’t

have a legally protected interest because she lacked privity with

Copart. That she lacked privity with Copart is of no moment. In

certain cases, lack of privity of contract “may not be used as a

shield.” Schnell v. Gustafson, 638 P.2d 850, 852 (Colo. App. 1981).

For example, when a homeowner fails to disclose a latent defect

that “in equity and good conscience (they) should have disclosed,”

the homeowner isn’t insulated from liability to a later purchaser of

the home. Id. at 851-52 (alteration in original) (quoting Morrison v.

Goodspeed, 68 P.2d 458, 477 (Colo. 1937)). Copart’s failure to

disclose the salvage title is similar to a homeowner’s failure to

disclose a latent defect, and, therefore, privity isn’t required for the

fraudulent nondisclosure claim.

¶ 24 We also reject the contention that privity is required for a

plaintiff to advance a CCPA claim. Indeed, an action under the

CCPA is available to, among others, “any person” who “[i]s any

11
successor in interest to an actual consumer who purchased the

defendant’s goods, services, or property.” § 6-1-113(1)(b).

¶ 25 We acknowledge that the evidence presented at trial appears

to establish that Copart never took ownership of the trailer. But

ownership isn’t required for standing to bring the fraudulent

nondisclosure or CCPA claim. Rather, for the fraudulent

nondisclosure claim, McCurdy had to demonstrate only that Copart

had a duty to disclose the salvage title, that it breached that duty,

and that the breach of that duty caused her to suffer damages. See

Mallon Oil Co. v. Bowen/Edwards Assocs., Inc., 965 P.2d 105, 111

(Colo. 1998) (“To succeed on a claim for fraudulent concealment or

non-disclosure, a plaintiff must show that the defendant had a duty

to disclose material information.”). The evidence supported that

Copart had this duty.

¶ 26 With respect to the CCPA claim, all that McCurdy had to

demonstrate to establish standing was that she was a successor in

interest to an actual consumer of Copart’s services. See § 6-1-

113(1)(b). Because the evidence demonstrates that Scarpa used

Copart’s services to purchase the trailer, McCurdy has standing for

the CCPA claim even though Copart never owned the trailer.

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b. Exculpatory Clause

¶ 27 We next address Copart’s contention that McCurdy didn’t have

a legally protected interest because Copart’s listing agreement

included an exculpatory clause and “as-is” provision. These

provisions don’t affect McCurdy’s standing to assert either claim.

To begin, McCurdy didn’t contract with Copart; therefore, any

exculpatory or “as-is” clause included in its contract with Scarpa

doesn’t impair her standing to sue Copart. Cf. E. Meadows Co. v.

Greely Irrigation Co., 66 P.3d 214, 217 (Colo. App. 2003) (“The

general rule is that one who is not a party to a contract, and from

whom no consideration moved, has no connection therewith. He

can avail himself of its terms neither as a cause of action nor a

defense.” (quoting Cont’l Cas. Co. v. Carver, 14 P.2d 181, 183 (Colo.

1932))). Moreover, “[m]ost courts will not enforce exculpatory and

limiting provisions . . . if they purport to relieve parties from their

own willful, wanton, reckless, or intentional conduct.” Rhino Fund,

LLLP v. Hutchins, 215 P.3d 1186, 1191 (Colo. App. 2008). And

McCurdy’s allegation in her second amended complaint was that

Copart “acted intentionally in [its] fraudulent non-disclosure” and

that it “knowingly or recklessly violated the CCPA.”

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¶ 28 Accordingly, we conclude that McCurdy had standing to bring

both the fraudulent nondisclosure and CCPA claims against Copart.

B. Motion for Directed Verdict

¶ 29 Copart next contends that the trial court erred by denying its

motion for directed verdict on both the fraudulent nondisclosure

and CCPA claims. We aren’t persuaded that the trial court erred by

denying the motion for directed verdict regarding the fraudulent

nondisclosure claim but agree that the trial court erred by denying

the motion regarding the CCPA claim.

1. Additional Facts

¶ 30 Following the close of McCurdy’s case, Copart orally argued its

motion for directed verdict. Specifically, for the fraudulent

nondisclosure claim, Copart’s counsel asserted that McCurdy had

presented insufficient evidence to show an “[i]ntent to commit fraud

on actual or potential buyers” or a link between the alleged fraud

and the negative impact alleged. And, for the CCPA claim, Copart’s

counsel asserted that she presented insufficient evidence to show a

significant public impact because, among other things, (1) Copart’s

auctions are private (only available to Copart members); (2) the

consumers in this case were all sophisticated dealers; (3) there was

14
no evidence of a disparity of bargaining power between Copart and

its member-customers; (4) there was no evidence that Copart had

engaged in similar misrepresentations in the past; (5) there was no

evidence of prior or future public impact; and (6) McCurdy wasn’t a

Copart consumer.

2. Legal Principles and Standard of Review

¶ 31 Pursuant to C.R.C.P. 50, “[a] party may move for a directed

verdict at the close of the evidence offered by an opponent or at the

close of all the evidence.” A motion for directed verdict is only

granted “if the evidence, considered in the light most favorable to

the nonmoving party, ‘compels the conclusion that reasonable

persons could not disagree and that no evidence, or legitimate

inference therefrom, has been presented upon which a jury’s verdict

against the moving party could be sustained.’” State Farm Mut.

Auto. Ins. Co. v. Goddard, 2021 COA 15, ¶ 25 (quoting Burgess v.

Mid-Century Ins. Co., 841 P.2d 325, 328 (Colo. App. 1992)).

¶ 32 We review a trial court’s denial of a motion for directed verdict

de novo. Parks v. Edward Dale Parrish LLC, 2019 COA 19, ¶ 9. We

assess whether the trial court’s directed verdict ruling is supported

by “evidence of sufficient probative force,” and, like the trial court,

15
we must “consider all the facts in the light most favorable to the

nonmoving party and determine whether a reasonable jury could

have found in favor of the nonmoving party.” State Farm, ¶ 26.

3. Fraudulent Nondisclosure

¶ 33 Copart contends that there was insufficient evidence to

support the fraudulent nondisclosure claim because, at trial,

McCurdy “presented no evidence to support or imply any

purposeful intent on [the] part of [Copart] to create a false

impression on her.” We disagree.

¶ 34 At trial, the court properly instructed the jury on the elements

of fraudulent nondisclosure as follows:

For the plaintiff, Courtney McCurdy, to recover
from the Defendant, Copart, Inc., on her claim
of fraudulent nondisclosure or concealment of
the salvage title, you must find all of the
following have been proved by a preponderance
of the evidence:

1. Copart had a duty to title the vehicle as
salvage and should have disclosed it as such,
but instead reported it as a clean title;

2. This fact was material;

3. The Defendant, Copart, Inc., failed to
disclose it with the intent of creating a false
impression of the actual facts in the mind of
the auction buyers;

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4. The Defendant, Copart, Inc., failed to
disclose the fact with the intent that the
auction buyers take a course of action they
might not take if they knew the actual facts;

5. The non-disclosed fact was repeated to
[McCurdy] by Scarpa Motors;

6. [McCurdy] took such action or decided not
to act relying on the assumption that the
undisclosed fact did not exist or was different
from what it actually was;

7. [McCurdy’s] reliance was justified; and

8. This reliance caused damages and losses to
[McCurdy].

See COLJI-Civ. 19:2 (2025) (first citing Baker v. Wood, Ris &

Hames, Pro. Corp., 2016 CO 5, ¶ 59; and then citing Anson v.

Trujillo, 56 P.3d 114, 120 (Colo. App. 2002)).

¶ 35 The question of whether the trial court erred in denying the

motion for directed verdict on the fraudulent nondisclosure claim

turns on whether there was sufficient evidence presented from

which a reasonable juror could find that Copart failed to disclose a

material fact “with the intent of creating a false impression of the

actual facts in the mind of the auction buyers.” While we agree that

there was no direct evidence of Copart’s intent to create a false

17
impression upon buyers, we disagree that McCurdy didn’t present

sufficient evidence at trial to support the jury’s verdict.

¶ 36 McCurdy presented circumstantial evidence of Copart’s intent

to deceive. First, there was evidence — albeit conflicting — that

Copart had a financial motive to list the vehicle with a clean title,

supporting an inference that it intentionally mistitled the trailer.

The manner in which Copart described the trailer — and how that

description changed over time — was also circumstantial evidence

that it intended to mislead potential purchasers, including with

respect to its title.

¶ 37 Specifically, evidence presented at trial showed that Copart

became less forthcoming in how it described the condition of the

trailer with each subsequent auction, even though it had more

information regarding its poor condition. Indeed, by the time of the

auction where Scarpa Motors was the successful bidder, Copart

was listing the trailer as only suffering from “minor dents and

scratches.” This more favorable (and less forthcoming) description

was provided after previous purchasers had complained to Copart

of the trailer’s extensive frame damage. While the fraudulent

nondisclosure of the frame damage was dismissed before trial, the

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jury could still consider Copart’s failure to advertise the frame

damage in the auction listing as circumstantial evidence of its intent

to fraudulently conceal the title defect because the frame damage

was, in large part, why a salvage title should have been applied to

the trailer before the first sale. Therefore, the jury could have

construed Copart’s failure to describe the frame damage as an

intent to pass the trailer off as having a clean title. While this

evidence is circumstantial, intent is usually shown by

circumstantial evidence. See, e.g., Harvey v. Harvey, 841 P.2d 375,

377 (Colo. App. 1992).

¶ 38 Thus, taken in the light most favorable to McCurdy, there was

enough evidence of intent to support the trial court’s denial of

Copart’s motion for a directed verdict on the fraudulent

concealment or nondisclosure claim.

4. CCPA

¶ 39 Next, Copart contends that the trial court erred by failing to

grant its motion for directed verdict on the CCPA claim. We agree.

¶ 40 To prevail on a private CCPA claim, a plaintiff must prove

(1) that the defendant engaged in an unfair or
deceptive trade practice; (2) that the
challenged practice occurred in the course of

19
defendant’s business, vocation, or occupation;
(3) that it significantly impacts the public as
actual or potential consumers of the defendant’s
goods, services, or property; (4) that the
plaintiff suffered injury in fact to a legally
protected interest; and (5) that the challenged
practice caused the plaintiff’s injury.

Rhino Linings USA, Inc. v. Rocky Mountain Rhino Lining, Inc., 62 P.3d

142, 146-47 (Colo. 2003) (emphasis added) (quoting Hall v. Walter,

969 P.2d 224, 235 (Colo. 1998)).

¶ 41 In contending that McCurdy’s CCPA claim fails, Copart

maintains that McCurdy failed to introduce sufficient evidence to

prove the third prong — that the alleged deceptive trade practice

significantly impacted the public. We agree with Copart and reverse

the judgment as to this claim on this basis.

¶ 42 “To prove a violation of the CCPA, a plaintiff must show not

only an unfair or deceptive trade practice, but also that the practice

‘significantly impacts the public as actual or potential consumers of

the defendant’s goods, services, or property.’” Shekarchian v. Maxx

Auto Recovery, Inc., 2019 COA 60, ¶ 39 (quoting Hall, 969 P.2d at

235). “[I]f a wrong is private in nature and does not affect the

public, a claim is not actionable under the CCPA.” Id. (citing Rhino

Linings, 62 P.3d at 149).

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¶ 43 When assessing public impact, the following factors must be

considered: “(1) [t]he 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 impacted

other consumers or has the significant potential to do so in the

future.” Colo. Coffee Bean, LLC v. Peaberry Coffee Inc., 251 P.3d 9,

25 (Colo. App. 2010) (quoting Rhino Linings, 62 P.3d at 149). None

of these factors are determinative, and it isn’t necessary that all the

factors be present. Shekarchian, ¶ 42.

¶ 44 While no single factor is determinative, as discussed below,

McCurdy failed to sufficiently prove any of these factors at trial. We

address the evidence regarding each factor below.

a. The Number of Consumers Directly Affected

¶ 45 First, McCurdy failed to demonstrate that a significant number

of consumers were affected or potentially affected by Copart’s

failure to properly title the vehicles it auctions. In particular, she

presented scant evidence on the number of consumers directly

affected by Copart’s alleged practice of mistitling salvage vehicles.

While McCurdy presented evidence that five Copart members had

21
purchased the trailer at issue in this case, there was no evidence

that this was a widespread or regular practice that affected a

significant number of consumers.4

¶ 46 Further, the evidence suggests that Copart didn’t market the

trailer — or its inventory generally — to the general public. Rather,

because of its business model, the trailer, like all its auctions, was

marketed only to members of Copart. Thus, while Copart markets

throughout the United States, the number of actual bidders is

limited, which reduces the number of consumers directly affected

by Copart’s deceptive practice. Cf. Colo. Coffee Bean, 251 P.3d at

25 (discerning no direct effect on “persons who merely read the

Internet posting or those who responded to it, but were screened

out by [the franchise]”).

4 To the extent McCurdy’s claim of public impact rests on the

number of Copart customers affected by the fraudulent (and
repeatedly disrupted) sale of this particular trailer, we reject the
notion that the repeated sale of this single item, standing alone, can
satisfy the significant public impact element of McCurdy’s CCPA
claim. See, e.g., Crowe v. Tull, 126 P.3d 196, 211 (Colo. 2006) (If a
CCPA plaintiff “fails to allege an injury other than a private
wrong . . . , the injury will lack public impact and will be too narrow
in scope to be covered by the CCPA.”).

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¶ 47 Citing Shekarchian, ¶ 49, McCurdy points to a single line of

testimony for the proposition that “Copart handled this trailer

consistently with its standard practices,” which, she argues,

supports “the reasonable inference that other consumers were also

affected.” But that testimony, when viewed in context, hardly

establishes that the deceptive practice alleged here is a standard

practice:

[McCurdy’s Counsel:] . . . [W]hat about in
Colorado, how many vehicles does Copart sell
a year?

[Dannylee Lamaack:] On average here a year,
I’m not sure of the exact answer; but I know
we run roughly about 1,200 a week.

[McCurdy’s Counsel:] Okay. Is that just one
Colorado location or is that all four of them?

[Lamaack:] I would have to look further into
that. I know that is about one location.

[McCurdy’s Counsel:] Okay. So it’s likely
similar numbers at the other locations?

[Lamaack:] They are all three different sized
locations, correct.

[McCurdy’s Counsel:] Okay. And is it fair to
say that Copart handled this vehicle the way it
handles most vehicles?

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[Lamaack:] For the location and the information
provided and the way the assignment was
created, correct.

[McCurdy’s Counsel:] And it’s the company’s
position in this case that no mistakes were
made?

[Lamaack:] I wouldn’t be for sure 100 percent
in regards to that.

[McCurdy’s Counsel:] Okay. You’re not aware
of anybody at the company being disciplined or
written up for this case?

[Lamaack:] To my knowledge, no.

(Emphases added.)

¶ 48 To be sure, evidence that that a deceptive trade practice is

standard operating procedure can be strong evidence that a

challenged practice has or will affect a significant number of

consumers. Shekarchian is a good example. In that case, the

defendant ran an automobile repossession service and impound lot,

and the challenged deceptive trade practice was that the defendant

would force vehicle owners to sign a liability release without an

opportunity to inspect their vehicle as a condition of getting their

vehicles back. Shekarchian, ¶¶ 2, 4, 40. On appeal, the defendant

contended that there was no evidence that this practice had a

significant public impact because it didn’t affect a sufficient number

24
of consumers. Id. at ¶ 48. In rejecting this contention, the division

cited the testimony of an employee of the defendant who said it was

the defendant’s “‘standard operating procedure’ . . . to refuse to

return the owner’s car unless [the owner] sign[ed] the release prior

to an inspection of the vehicle” — the very practice at issue in the

case. Id. at ¶ 49. Based on this, the division concluded that “the

evidence supported a reasonable inference that [the defendant]

engage[d] in the unfair or deceptive practice in virtually every

interaction with consumers.” Id. (citing Crowe v. Tull, 126 P.3d

196, 209 (Colo. 2006)).

¶ 49 The evidence McCurdy cites, even when viewed in the light

most favorable to McCurdy, doesn’t support a similar inference.

Vague testimony that this transaction was generally handled as

most other transactions isn’t evidence that the particular alleged

deceptive trade practice is standard operating produce.

¶ 50 And McCurdy points to another brief passage of testimony for

the proposition that a representative of “APB Motors testified to

other instances of non-disclosure by Copart.” But here’s that

testimony in context:

25
[Copart’s Counsel:] . . . [Y]ou would agree that
from your experience, Copart’s auctions have
been reputable and generally not in a position
to not disclose information to you as a
potential consumer?

[Anastasia Bondarenko:] In my experience, we
have had some things that weren’t disclosed.

[Copart’s Counsel:] Okay. Like what things?

[Bondarenko:] Again, we had where vehicles
said run and drive, but it had completely
underneath everything smashed and damaged,
so there is no way that would be run and
drive. That’s something that we get and we
can’t prove it to Copart that, hey, you guys
didn’t describe it as is, but that’s how it is.

[Copart’s Counsel:] You haven’t experienced
numerous series of situations where you’ve
had title issues by purchasing vehicles from
sellers at Copart?

[Bondarenko:] We did have — not too much,
but a couple of times where we purchased a
vehicle that was disclosed as a clean title and
we get a salvage title. We had that maybe a
couple of times.

[Copart’s Counsel:] Once or twice out of the
thousands that you purchased?

[Bondarenko:] Yes.

(Emphases added.)

¶ 51 Again, this testimony doesn’t support the conclusion that the

alleged deceptive trade practice had a significant public impact. If

26
anything, it supports the opposite: that this was a one- or two-in-a-

thousand occurrence for one Copart member. See Rhino Linings, 62

P.3d at 150 (“Three affected dealers out of approximately 550

worldwide does not significantly affect the public . . . .”). Simply

put, the testimony McCurdy cites to support that she presented

evidence of “widespread dissemination of false information” doesn’t

bear the weight placed on it.

b. Relative Sophistication and Bargaining Power of the
Consumers

¶ 52 Second, McCurdy failed to demonstrate a disparate level of

sophistication or bargaining power between Copart and herself or

between Copart and its customers. The evidence presented at trial

indicated that most of Copart’s members were dealers. Indeed, the

record shows that most, if not all, of the purchasers of the trailer at

issue, including Scarpa, were dealers.5 Thus, while McCurdy

herself may not have been a sophisticated purchaser with

bargaining power, Scarpa and the other dealers were.

5 It’s not clear from the record whether “Mac Scooters” — the

second purchaser of the trailer — was a dealer.

27
¶ 53 McCurdy points to evidence from trial that she says

demonstrates that Copart had and wielded superior bargaining

power over its dealer-customers by “blacklisting dealers who

challenge[d] them.” The testimony from the owner of Scarpa Motors

that McCurdy cites is as follows:

[McCurdy’s Counsel:] Now, does your company
still purchase cars from Copart?

[Scarpa Motors Owner:] No.

[McCurdy’s Counsel:] Why not?

[Scarpa Motors Owner:] They suspended our
license.

....

[McCurdy’s Counsel:] . . . [W]hat is your
understanding of why you were suspended?

[Scarpa Motors Owner:] I think they wanted us
to indemnify this whole issue. I was spending
close to 2 million [dollars] a year with them
and they just said we should indemnify them.
I said I wasn’t suing Copart, so I didn’t feel I
was — it was unjustified what they did.

¶ 54 This testimony demonstrates little more than that the

particulars of this private transaction — and Scarpa’s refusal to

indemnify Copart against McCurdy’s suit — resulted in Copart

discontinuing its relationship with Scarpa Motors. While this

28
approach may have been heavy-handed, this testimony, without

more, doesn’t demonstrate, or even imply, a general or widespread

practice by Copart to “blacklist dealers who challenge them,” as

McCurdy contends.

¶ 55 Simply put, the evidence presented at trial, when viewed in the

light most favorable to McCurdy, is insufficient to show that there

was a disparate level of sophistication or bargaining power in this

transaction or in other transactions at Copart auctions. And

sophisticated purchasers with bargaining power aren’t the type of

consumer the CCPA protects. See Martinez v. Lewis, 969 P.2d 213,

222 (Colo. 1998) (“The CCPA provides consumers who are in a

position of relative bargaining weakness with protection against a

range of deceptive trade practices.”).

c. Evidence that the Challenged Practice Has Previously
Impacted Other Consumers or Has the Significant Potential to
do so in the Future

¶ 56 Third, McCurdy didn’t introduce sufficient evidence that the

practice of mistitling vehicles has previously affected other

consumers or has significant potential to do so in the future.

¶ 57 Again, while there was some testimony that Copart had

mistitled vehicles in the past, there was no indication that it had

29
negatively impacted previous consumers or that the practice was so

extensive that there was a significant potential it would impact

consumers in the future.

¶ 58 In short, examining each of the factors separately and

together, McCurdy failed to demonstrate that Copart’s deceptive

practice significantly impacted the public. Because there was

insufficient evidence presented at trial that Copart’s deceptive

practice affected the general public, the trial court erred by not

granting Copart’s motion for directed verdict on the CCPA claim.

And therefore, the ruling must be reversed.

C. Motion for a New Trial

¶ 59 Copart next contends that the trial court erred by denying its

motion for a new trial on the grounds that (1) the trial court gave

the jury improper instructions on state salvage title laws, and

(2) the damages awarded to McCurdy at trial were excessive. After

addressing the standard of review, we consider and reject each

contention in turn.

1. Standard of Review

¶ 60 When ruling on a motion for a new trial, trial courts have

“considerable discretion,” and we won’t disturb the trial court’s

30
ruling “absent a clear showing of an abuse of discretion.” Zolman v.

Pinnacol Assurance, 261 P.3d 490, 502 (Colo. App. 2011). A trial

court abuses its discretion if its “ruling was manifestly arbitrary,

unreasonable, or unfair, or was based on a misunderstanding or

misapplication of the law.” Bd. of Cnty. Comm’rs v. DPG Farms,

LLC, 2017 COA 83, ¶ 34.

2. Jury Instructions on State Salvage Title Law

¶ 61 We first address Copart’s contention that the trial court erred

by denying its motion for a new trial because the jury received

improper instructions.

a. Additional Facts

¶ 62 Notwithstanding the fact that the trailer in this case was

originally titled and sold in Michigan, during trial, multiple

witnesses offered conflicting testimony about the requirements of

Colorado law surrounding salvage title. This testimony was elicited

by counsel for both Copart and McCurdy, and neither party

objected to the testimony.

¶ 63 Near the end of trial, the court held a jury instruction

conference at which the parties discussed a proposed jury

instruction on Colorado salvage law in addition to Michigan salvage

31
law. Counsel for Copart objected to a portion of the instruction

because it instructed the jury that “if there was ever a total loss, it’s

salvage here in Colorado.” And because there had been testimony

about the trailer being deemed a “total loss,” Copart was concerned

the jury would disregard Michigan law when determining whether

Copart should have applied a salvage title to the trailer. Copart also

asserted that the instruction on total loss shouldn’t be given at all

because McCurdy’s second amended complaint didn’t make “any

particular allegations [that] Colorado law as [to] total loss should

[have] been applied.”

¶ 64 In response to Copart’s objection, the court expressed its

concern that the jury would be confused without the instruction

because multiple witnesses had testified about Colorado law while

being examined by both Copart and McCurdy. Copart then

renewed its objection, stating that because McCurdy didn’t include

a “total loss” allegation in her second amended complaint, Copart

wasn’t defending against whether a total loss occurred.

¶ 65 Ultimately, the trial court determined that it was necessary to

give an instruction on Colorado salvage law that included language

about total loss. In making this determination, the court reiterated

32
that the instruction was necessary because there was testimony by

witnesses, including Copart employees, about total loss, some of

which was inaccurate. The court reasoned that, given the

testimony presented on total loss, the jury would be left “hanging,”

and, given the inaccuracies in witness testimony, it might affect the

jury’s ability to make a credibility analysis. But, understanding

Copart’s concerns and in an apparent effort to ameliorate its

concerns about confusing the jury, the trial court included an

instruction stating that Michigan law applies to transactions in

Michigan, and Colorado law applies to transactions in Colorado.

Copart didn’t expressly object to this instruction but reasserted its

objection to instructing the jury on the total loss language in the

Colorado salvage law instruction.

¶ 66 The trial court instructed the jury on Colorado salvage law in

instruction 30 as follows:

Under Colorado law, “salvage vehicle” is
defined as:

1. A flood-damaged vehicle; or

2. A vehicle branded as a salvage vehicle by
another state;

33
3. A vehicle that is damaged by collision, fire,
flood, accident, trespass, or other occurrence,
excluding hail damage or theft, to the extent
that the vehicle is determined to be a total loss
by the insurer or other person acting on behalf
of the owner or that the cost of repairing the
vehicle to a roadworthy condition and for legal
operation on the highways exceeds the
vehicle’s retail fair market value immediately
prior to the damage, as determined by the
person who owns the vehicle at the time of the
occurrence or by the insurer or other person
acting on behalf of the owner.

¶ 67 The trial court also gave the jury instruction 31:

Michigan law applies to transactions that
occurred in Michigan.

Colorado law applies to transactions that
occurred in Colorado.

¶ 68 In its motion for a new trial, Copart again raised concerns over

instruction 30 and also raised concerns over instruction 31. In

denying the motion, the trial court found that giving the

instructions wasn’t error because compliance with Colorado title

law was presented at trial, and the instructions were necessary to

avoid confusion and assist the jury in determining the credibility of

witnesses.

34
b. Preservation

¶ 69 McCurdy contends that Copart failed to preserve for our

review the issue of whether the trial court erred by giving

instruction 31. Generally, issues may not be addressed for the first

time on appeal. In re Marriage of Mack, 2022 CO 17, ¶ 12. But we

need not decide whether an issue is preserved if we conclude, as we

do here, that a party’s argument is unavailing. See id.

c. Legal Principles and Standard of Review

¶ 70 A trial court has a duty to correctly instruct the jury on “all

matters of law.” Day v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011).

We review whether a particular instruction correctly states that law

de novo. Id. To determine whether the jury instructions accurately

informed the jury of the law, we read and consider all the

instructions together as a whole. Williams v. Chrysler Ins. Co., 928

P.2d 1375, 1378 (Colo. App. 1996). As long as a particular

instruction properly informs the jury of the law, a trial court has

broad discretion to determine its form and style. Day, 255 P.3d at

1067. And when an instruction accurately states the law, “we

review a trial court’s decision to give a particular jury instruction for

an abuse of discretion.” Id. But “[a]n instruction which misleads or

35
confuses the jury amounts to error.” Williams, 928 P.2d at 1377.

An improper jury instruction, however, “is not grounds for reversal

unless it prejudices a party’s substantial rights.” Clough v. Williams

Prod. RMT Co., 179 P.3d 32, 40 (Colo. App. 2007).

d. The Trial Court Didn’t Err

¶ 71 We aren’t persuaded that jury instructions 30 and 31 were

improper or that the trial court abused its discretion by giving

them.

¶ 72 First, both instruction 30 and instruction 31 are accurate

statements of the law. And second, neither instruction 30 nor

instruction 31 were confusing or misleading. Rather, as the trial

court observed, jury instructions 30 and 31 were necessary to avoid

confusing or misleading the jury.

¶ 73 The record supports the trial court’s determination that jury

instruction 30 was necessary. We reach this conclusion for two

reasons. First, because witnesses for Copart testified incorrectly

about Colorado law. Second, it was necessary for the jury to decide

the CCPA claim because the CCPA instruction stated, “A defendant

engages in a deceptive trade practice if, in the course of its

business, the defendant: . . . [f]ails to disclose in writing, prior to

36
sale, to the purchaser that a motor vehicle is a salvage vehicle, as

defined under Colorado law.” (Emphasis added.)

¶ 74 Still, Copart contends that the jury may have answered the

question of whether the trailer should have been salvaged

differently if instruction 30 hadn’t been given. But nothing in the

record supports this contention. And on appeal, “[w]e must

presume the jury understood and followed” the jury instructions.

Harris Grp., Inc. v. Robinson, 209 P.3d 1188, 1202 (Colo. App.

2009).

¶ 75 Regardless of the necessity of the instruction, any confusion it

created was reduced or eliminated by the parties’ closing

arguments. Indeed, during closing, counsel for both McCurdy and

Copart informed the jury that the trailer’s salvage title depended on

Michigan law, not Colorado law. Copart’s counsel, in particular,

informed the jury that Copart used Michigan laws to determine

whether the trailer needed a salvage title, and both Copart’s counsel

and McCurdy’s counsel repeatedly emphasized that the salvage

title’s applicability depended on the trailer’s weight — a

consideration that is only necessary under Michigan law.

37
¶ 76 Because it was necessary for the trial court to instruct the jury

on both Michigan salvage title law and Colorado salvage title law,

instruction 31 was necessary to avoid confusing the jury. That the

trailer was ultimately sold in Colorado doesn’t make instruction 31

improper. Rather, it was up to the parties to further argue whether

Colorado or Michigan law applied to either the fraudulent

nondisclosure or CCPA claim.

¶ 77 Thus, because there was testimony about Colorado law, and

because an element of the CCPA claim required the jury to

understand Colorado law, the trial court didn’t abuse its discretion

by giving jury instruction 30. And because jury instruction 31 was

necessary to clarify when Michigan law applied and when Colorado

law applied, the trial court didn’t abuse its discretion by giving jury

instruction 31.

3. Noneconomic Damages

¶ 78 We next address Copart’s contention that the trial court erred

by denying its motion for a new trial because the damages the jury

awarded McCurdy at trial were excessive.

38
a. Additional Facts

¶ 79 In the joint trial management certificate filed in advance of

trial, McCurdy asserted that she would be requesting approximately

$54,000 in economic damages, and noneconomic damages in an

amount “to be determined by the trier of fact.” Copart doesn’t point

to, and we can’t find, record evidence that Copart objected to

McCurdy’s lack of specificity about the requested noneconomic

damages.

¶ 80 During trial, McCurdy offered some testimony regarding how

the transaction affected her. Specifically, she testified to the

following:

• She “got really nervous” because her husband had to pull

the trailer over on a two-lane highway with cars “zipping

by.”

• While stopped on Monarch Pass, McCurdy’s husband

tried to keep the trailer from “falling over,” and she was

“losing her mind thinking it’s going to fall on top of him.”

• She still makes payments on the trailer even though she

can’t use it, and it’s “[d]evastating.”

39
• After the “situation with the trailer,” she doesn’t “trust as

much as [she used] to, [she has] a hard time taking

people at their word.”

• The situation with the trailer “has affected [her] sleeping

because . . . [she is] paying out money on something that

[she] can’t use.”

• The situation with the trailer affected her “thought

process,” and she “made a couple of mistakes at work.”

• The purchase of the trailer has “negatively” affected her

relationship with her husband “because he . . . wants to

get another [trailer]; however [she] dug [her] heels in

because . . . it’s not an option for [her].”

¶ 81 McCurdy’s husband also testified that the purchase of the

trailer and the situation near Monarch Pass had negatively affected

McCurdy. Specifically, he testified that McCurdy

• “lost her appetite and she didn’t eat for a very long time

and she wasn’t sleeping”;

• “got irritable with just everything” and said “we’re not

getting a new trailer,” which has “caused a lot of issues”;

and

40
• “used to be more fun” and now “is more closed off” and

“not as willing to go off and do stuff like she used to be.”

¶ 82 It doesn’t appear that the McCurdys were asked to quantify

this stress, but they confirmed that no one in their family was

physically injured, and McCurdy’s husband testified that McCurdy

hadn’t been diagnosed with post-traumatic stress disorder.

¶ 83 Although the McCurdys didn’t place any specific monetary

value on this stress during their testimony, counsel did suggest a

dollar amount in closing. During closing argument, McCurdy’s

counsel discussed her emotional distress, stating, “[T]hat’s the

biggest part of this. And you got to find how much is that worth to

her to go through.” McCurdy’s counsel then stated, “I’m going to

suggest the number to you and the number that I suggest is

[$]700,000. You may think it should be higher, you may think it

should be lower, and that’s fine, because that is the power you

have. You get to decide how much it’s worth.” It doesn’t appear

that either McCurdy’s counsel or Copart’s counsel stated a precise

basis for quantifying the McCurdys’ noneconomic damages or

further commented on the amount of noneconomic damages.

41
¶ 84 During deliberations the jury asked, “How did [McCurdy’s]

lawyer calculate $700,000 in damages?” The court declined to

answer the question, responding that the jury had “received all of

the testimony and exhibits that are to be considered as evidence in

this case.” The jury returned a verdict awarding McCurdy

$700,000.

¶ 85 In its motion for a new trial, Copart argued that the $700,000

verdict was excessive and not supported by the evidence. Copart

noted that McCurdy never submitted any medical records to

support a “psychological diagnosis,” didn’t present expert testimony

about the existence of her stress, and testified that she didn’t suffer

personal injury “inclusive of not seeking any psychological

counseling or mental health treatment of any kind.” Copart also

indicated that, while McCurdy stated that she was seeking

noneconomic damages, the $700,000 request “was a complete

surprise.”

¶ 86 The trial court disagreed that the damages weren’t supported

by the evidence or that they were excessive, finding “evidentiary

support in the record for both the economic and noneconomic

injury” and concluding that the testimony presented was

42
“sufficiently probative” of whether McCurdy suffered noneconomic

damages and not based on speculation or conjecture.

b. Applicable Legal Principles

¶ 87 The amount of damages awarded “is within the sole province

of the jury, and an award will not be disturbed unless it is

completely unsupported by the record or if it is so excessive as to

indicate that the jury acted out of passion, prejudice, or

corruption.” Averyt v. Wal-Mart Stores, Inc., 265 P.3d 456, 462

(Colo. 2011). An award of damages “may not be based on

speculation or conjecture.” Tisch, ¶ 67. The reasonableness of an

award, however, is “always subject to judicial scrutiny in the post-

trial and appellate stages of a case.” Averyt, 265 P.3d at 462.

¶ 88 Pursuant to C.R.C.P. 59(d)(5), “[e]xcessive or inadequate

damages” are grounds for a new trial. When a damages award is

manifestly excessive in light of the evidence presented, the trial

court may grant a new trial or, alternatively, deny a new trial

conditioned on a plaintiff’s agreement to remittitur of any damages

deemed to be excessive. Jagow v. E-470 Pub. Highway Auth., 49

P.3d 1151, 1157 (Colo. 2002).

43
c. A New Trial Isn’t Warranted

¶ 89 Copart argues that McCurdy “provided no substantial evidence

to support the jury’s verdict,” but the record belies this contention.

As detailed above, at trial McCurdy presented evidence that

(1) when the trailer experienced issues on Monarch pass, she was

“nervous”; (2) because of the incident and because she had to make

payments on a trailer she couldn’t use, her sleeping, eating, and

“thought process” have been affected; and (3) after purchasing and

experiencing issues with the trailer, she isn’t as trusting, and her

relationship with her husband has been “negatively” affected.

¶ 90 Though perhaps thin, this is enough to support the jury’s

award of noneconomic damages.

¶ 91 Copart points out that McCurdy didn’t “provide any expert

testimony or medical records to indicate that she suffered from

[post-traumatic stress disorder], stress, or other psychological

diagnosis, as a result of the [t]railer purchase” and that she

admitted she didn’t have bodily injury “inclusive of not seeking any

psychological counseling or mental health treatment of any kind . . .

as a result of the purchase of the [t]railer.” While it’s true that

McCurdy didn’t present any expert testimony, medical records, or

44
testimony that she sought treatment, such documentation and

testimony isn’t necessary to demonstrate that she suffered

noneconomic damages. See Palmer v. Diaz, 214 P.3d 546, 552

(Colo. App. 2009) (“Substantial evidence is that which is probative,

credible, and competent. It is evidence of a character that would

warrant a reasonable belief in the existence of facts supporting a

particular finding, without regard to the existence of contradicting

testimony or contradictory inferences.”).

¶ 92 Copart also notes that the economic damages presented at

trial “equated to just under 12% of the total $700,000 verdict” and

contends that the jury’s question about how McCurdy calculated

the amount of damages supports its contention that there wasn’t

substantial evidence “for the high dollar request.” But it’s

inconsequential that the economic damages constituted a small

fraction of the total award and that the jury asked how the damages

request was calculated. Copart doesn’t cite case law supporting its

argument that a jury can’t award significantly greater noneconomic

damages than the estimated amount of economic damages alleged.

There is similarly a lack of support for Copart’s argument that the

jury’s question regarding the total damages requested indicated

45
that it was confused by McCurdy’s request. That the jury

questioned the basis for the total damages request doesn’t

necessarily indicate confusion. Indeed, as the trial court stated in

its denial of Copart’s motion, it could merely indicate that the jury

was engaging in a calculation of damages.

¶ 93 Thus, given the evidence established at trial, the trial court

didn’t abuse its discretion by denying Copart’s motion for a new

trial.

D. Delineation of Damages

¶ 94 Copart next contends that the trial court erred by trebling the

entire damages because there wasn’t a delineation of damages on

the verdict form. Because we reverse the judgment relating to the

CCPA claim, we need not address this contention.

E. Attorney Fees Motion

¶ 95 After trial, McCurdy filed a motion requesting attorney fees

under section 6-1-113, based on the jury’s verdict in her favor on

the CCPA claim. Copart objected to this motion and requested a

hearing to address it. According to Copart, the trial court never

ruled on the motion.

46
¶ 96 In this appeal, Copart contends that because the trial court

didn’t rule on the motion within sixty-three days of it being filed,

the motion was deemed denied under C.R.C.P. 59(j). Based on this,

Copart suggests that we should confirm the implied denial of the

motion.

¶ 97 But Copart is wrong about the effect of the trial court’s failure

to rule on McCurdy’s motion for attorney fees within the timeframe

in C.R.C.P. 59(j). Indeed, “requests for costs and attorney fees are

outside the purview of C.R.C.P. 59(j)’s requirement that a motion be

denied as a matter of law if it is not decided on within sixty[-three]

days.” Anderson v. Pursell, 244 P.3d 1188, 1195 (Colo. 2010)

(applying a former version of C.R.C.P. 59(j)). Simply put, nothing

about the motion for attorney fees is before us, so we offer no

opinion regarding the pending request (or any order the trial court

may issue regarding it).

III. Disposition

¶ 98 The judgment is affirmed in part and reversed in part. On

remand, the trial court should dismiss the CCPA claim and enter a

new judgment, consistent with this opinion, based on the

fraudulent nondisclosure claim.

47
JUDGE KUHN and JUDGE SCHUTZ concur.

48