v Emmett

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

SUMMARY
February 18, 2021

2021COA20

No. 19CA1916, Fogel v Emmett — Civil Procedure — Subpoena
— Tender of Payment for Mileage

A division of the court of appeals considers for the first time

whether a subpoena is validly served under the 2012 amendments

to Rule 45 of the Colorado Rules of Civil Procedure if the serving

party does not tender the required mileage fee to the witness prior

to the appearance date. A majority of the division holds that a

subpoena is not validly served if the serving party does not tender

the required mileage fee to the witness prior to the appearance date.

Because the record does not indicate whether the appellant was

tendered the mileage fee after the process service left the subpoena

in the doorway of appellant’s home, the division reverses the trial

court’s order finding appellant in contempt for not responding to
the subpoena and remands the case to the trial court for additional

factual findings.

The dissent would not reach the issue addressed in the

majority opinion and, in addition, would hold that the serving

party’s failure to tender the required mileage fee to the witness prior

to the appearance date does not affect the validity of service of the

subpoena.
COLORADO COURT OF APPEALS 2021COA20

Court of Appeals No. 19CA1916
City and County of Denver District Court No. 18CV242
Honorable Martin F. Egelhoff, Judge

Marshall Fogel,

Appellant,

and

Jennifer Lee Emmett,

Plaintiff-Appellee,

v.

Andrea Iris Rabin Bankoff, Anthony Molitor, and Northpoint Asset Management
LLC,

Defendants-Appellees.

ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE LIPINSKY
Richman, J., concurs
Pawar, J., dissents

Announced February 18, 2021

Ridley, McGreevy & Winocur, PC, Patrick L. Ridley, Denver, Colorado, for
Appellant

No Appearance for Plaintiff-Appellee

No Appearance for Defendants-Appellees
¶1 The amendments to the Colorado Rules of Civil Procedure that

took effect on January 1, 2013 (2012 amendments), included

changes to the language of C.R.C.P. 45 requiring that a witness

being served with a subpoena also be tendered a mileage fee. Rule

Change 2012(16), Colorado Rules of Civil Procedure (Repealed and

Readopted by the Court En Banc, Oct. 18, 2012),

https://perma.cc/7FHS-E5TB. This case presents a question not

previously answered in a Colorado appellate decision: Under the

2012 amendments to C.R.C.P. 45, is a subpoena validly served if

the witness was never tendered the required mileage fee? We

answer the question in the negative.

¶2 Marshall Fogel appeals the trial court’s ruling finding him in

contempt of court for failing to comply with a subpoena even

though he did not receive the required mileage fee. In light of our

reading of C.R.C.P. 45, we reverse and remand the case to the trial

court for a finding as to whether Fogel received the required mileage

fee “within a reasonable time after service of the subpoena, but in

any event prior to the appearance date,” as the current version of

C.R.C.P. 45(b)(3) requires.

1
I. Background

¶3 Counsel for the plaintiff issued a subpoena requiring Fogel, an

attorney, to appear in court to testify at a trial. According to the

trial court, Fogel’s testimony was “consequential” to a disputed

issue at the trial.

¶4 A process server claimed to have served a subpoena on Fogel

at Fogel’s home. But Fogel failed to appear in court on the date and

at the time specified in the subpoena. When Fogel failed to appear,

the trial court issued a contempt citation and scheduled a hearing

on whether Fogel should be found in contempt of court.

¶5 The trial court announced that it would conduct the hearing

“consistent with the procedures for criminal proceedings and so the

burden of proof is beyond a reasonable doubt and there’s

presumption of innocence and privilege against self-incrimination.”

Thus, the plaintiff was required to prove beyond a reasonable doubt

that Fogel was in contempt of court. See People ex rel. State Eng’r v.

Sease, 2018 CO 91, ¶ 23, 429 P.3d 1205, 1210 (explaining that

findings of fact supporting punitive sanctions for contempt must be

established beyond a reasonable doubt); C.R.C.P. 107(d)(1).

2
¶6 Fogel was represented by counsel at the hearing and elected

not to testify. The process server — the only witness at the hearing

— said that he brought the subpoena to Fogel’s home. He testified

that

 he knocked on the door and Fogel answered;

 he told Fogel that he had “documents” for “Mr. Fogel”;

 Fogel replied that he was “not Marshall Fogel” but,

rather, “Bob Stevens,” and that Fogel was in Orange

County, California;

 Fogel shut the door without taking the subpoena;

 the process served placed the subpoena in the front door;

and

 when he returned to the front door about twenty minutes

later, he saw that the subpoena was no longer there.

¶7 At the hearing, Fogel’s counsel presented several arguments in

support of his contention that the subpoena had not been properly

served on Fogel. This appeal concerns Fogel’s argument that the

subpoena was not properly served on him because, under C.R.C.P.

45, a party who is being served with a subpoena must also be

3
tendered a check for the required mileage fee, and there was no

evidence that the process server tendered the mileage fee to Fogel.

¶8 The trial court found beyond a reasonable doubt that “the[]

documents were, in fact, provided to Mr. Fogel which clearly

advised him of his obligation to appear and testify, [but] there was

no evidence that there was a mileage check that was included in

those documents . . . .” The trial court concluded that “the[]

documents were appropriately delivered to Mr. Fogel pursuant to

both Rule 45 and Rule 4,” but that the mileage fee requirement

does not apply “in the context of a contempt proceeding where the

purpose is to compel the attendance of the witness to provide

testimony in a legal proceeding.” For these reasons, the court

found Fogel in contempt.

¶9 In sentencing Fogel, the trial court said that the “ability to

compel witnesses to come to court that don’t want to” was part of

“the foundation of the justice system.” The court explained that, if

there is no “real consequence” to a witness’s failure to abide by a

subpoena, “the foundation of our justice system crumbles.” The

trial court sentenced Fogel to thirty days in the Denver County jail,

which the court later reduced to fifteen days after Fogel fell ill.

4
(While the dissent accurately discusses the record evidence

regarding Fogel’s experience as an attorney, his professional

reputation, and his lack of contrition at the sentencing hearing,

those issues are not relevant to whether he was, or was not, validly

served with the subpoena. All witnesses, whether prominent

attorneys or not, must comply with validly served subpoenas and

are not subject to punishment for failure to comply with invalidly

served ones.)

¶ 10 On appeal, Fogel argues that the trial court erred by ruling

that a subpoena can be deemed validly served even if the witness is

not tendered the required mileage fee. Fogel’s argument in the trial

court (and on appeal) primarily addressed whether, under C.R.C.P.

45, a witness must be tendered the required mileage fee at the time

the witness is provided with the subpoena. But Fogel also made the

more general argument that a subpoena is not validly served if the

witness is not provided with the mileage fee.

¶ 11 For example, at the hearing, Fogel’s attorney argued that “Rule

45 has very specific requirements and this is proof beyond a

reasonable doubt that the party who’s being served must, and this

is not discretionary, must be tendered a check for witness fees or

5
mileage and that’s required under the rule . . . .” And, in his

opening brief, Fogel asserted that “[t]he attempted service of a

subpoena duces tecum on Mr. Fogel was rendered invalid by the

failure to pay Mr. Fogel a mileage fee.” Thus, we cannot disregard

Fogel’s broad assertion regarding the invalidity of service of a

subpoena when the witness is not tendered the required mileage

fee.

II. The Requirement that a Subpoenaed Witness Be Tendered
the Specified Mileage Fee

A. Standard of Review

¶ 12 We review de novo the trial court’s interpretation of C.R.C.P.

45(b)(3). See DCP Midstream, LP v. Anadarko Petroleum Corp., 2013

CO 36, ¶ 24, 303 P.3d 1187, 1193.

B. The Law Governing Mileage Fees for Subpoenaed Witnesses

¶ 13 Our analysis rests on the plain meaning of C.R.C.P. 45(b)(3),

which contains the mileage fee requirement. The rules of statutory

construction also apply to our interpretation of the Rules of Civil

Procedure. See Watson v. Fenney, 800 P.2d 1373, 1375 (Colo. App.

1990). Accordingly, our goal is to ascertain and apply the drafters’

intent as expressed through the plain language of the rule. Waste

6
Mgmt. of Colo., Inc. v. City of Commerce City, 250 P.3d 722, 725

(Colo. App. 2010). (Although the Colorado Supreme Court

promulgates the Rules of Civil Procedure, the court’s Civil Rules

Committee provides the court with input regarding the language of

such rules. See Williams v. Crop Prod. Servs., Inc., 2015 COA 64,

¶ 17, 361 P.3d 1075, 1078.) “[W]hen the language employed [in a

rule] is plain and the meaning [is] clear, it must be applied as

written.” Watson, 800 P.2d at 1375.

1. The Pre-January 1, 2013 Version of the Mileage Fee Language
in C.R.C.P. 45

¶ 14 Before January 1, 2013, the subsection of C.R.C.P. 45

addressing service of a subpoena consisted of a single multi-

sentence paragraph, the first sentence of which said, “[s]ervice of a

subpoena upon a person named therein shall be made by delivering

a copy thereof to such person and by tendering to such person the

fees for one day’s attendance and the mileage allowed by law.”

C.R.C.P. 45(c) (2011). That language clearly provided that a

subpoena was not validly served if the witness was not tendered the

specified attendance and mileage fees. See Stubblefield v. Dist. Ct.,

198 Colo. 569, 572, 603 P.2d 559, 560 n.3 (1979) (explaining, in

7
dicta, that “Rule 45 [contains a] requirement that tender of witness

fees is necessary to effect proper service” of a subpoena); In re

Marriage of Dauwe, 148 P.3d 282, 286 (Colo. App. 2006) (holding

that a subpoena may be quashed if the witness is not provided with

the required mileage fee).

¶ 15 Thus, before the 2012 amendments to C.R.C.P. 45 took effect,

the law was clear that a subpoena was not validly served if the

witness was not tendered the specified attendance and mileage fees.

Next, we turn to whether the 2012 amendments changed this

fundamental tenet of civil practice.

2. The Mileage Fee Language in the 2012 Amendments

¶ 16 The 2012 amendments broke the single paragraph of the

service section of C.R.C.P. 45 into five separately numbered

subsections and modified the language of the rule addressing the

mileage fee requirement. (Fogel does not contend that he was

entitled to receive an attendance fee in addition to the required

mileage fee.) We must decide whether those amendments changed

the black letter law that a subpoena is not validly served unless the

witness is tendered a required fee.

8
¶ 17 The drafters of the 2012 amendments placed the mileage fee

requirement in a new C.R.C.P. 45(b)(3), which provides that

[i]f the subpoena requires a person’s
attendance, the payment for 1 day’s mileage
allowed by law must be tendered to the
subpoenaed person at the time of service of the
subpoena or within a reasonable time after
service of the subpoena, but in any event prior
to the appearance date.

¶ 18 Thus, unlike the version of C.R.C.P. 45 in effect before

January 1, 2013, the current version of the rule specifies that the

required mileage fee may be tendered to a witness being served with

a subpoena “within a reasonable time after service of the subpoena,

but in any event prior to the appearance date.” The fee need not be

tendered to the witness at the same time the witness is provided

with the subpoena.

¶ 19 The unambiguous language of C.R.C.P. 45(b)(3) indicates that

the 2012 change to the mileage fee requirement was a modest one,

intended to provide a party serving a subpoena with flexibility

regarding the timing of tender of the mileage fee to the witness.

¶ 20 Significantly, the drafters of the 2012 amendments placed the

subsection setting forth the mileage fee requirement under the

“service” section of the rule. C.R.C.P. 45(b) is titled “Service” and

9
the mileage fee language appears in C.R.C.P. 45(b)(3). While the

title of a section of a rule is not dispositive of the drafters’ intent, it

can aid in determining the drafters’ intent. Cf. People in Interest of

G.S.S., 2020 CO 32, ¶ 22, 462 P.3d 592, 596 (noting that a section

of the Children’s Code entitled “Bail” is exclusively about bail and is

“wholly concerned with a juvenile’s statutory right to bail”).

¶ 21 Further, nothing in the 2012 amendments or in their history

suggests that the drafters intended the revision to the mileage fee

language in C.R.C.P. 45 to effect a material change in the law by

providing that, henceforth, a subpoena could be validly served even

if the witness was not tendered the required mileage fee. For

example, although the minutes of the Civil Rules Committee’s

meetings addressing the 2012 amendments reflect significant

discussions regarding a number of proposed changes to C.R.C.P.

45, the minutes contain no reference to the mileage fee language.

See, e.g., Colo. Supreme Ct. Comm. on Rules of Civ. Proc., Minutes

of Meeting (Apr. 29, 2011).

¶ 22 In addition, we don’t view the references to “service of the

subpoena” in C.R.C.P. 45(b)(3) to mean that, after January 1, 2013,

subpoenas could be validly served even if the witness was not

10
tendered the required mileage fee. C.R.C.P. 45(b)(3) says that the

required mileage fee “must be tendered to the subpoenaed person at

the time of service of the subpoena or within a reasonable time after

service of the subpoena . . . .” But the fact that the physical

subpoena must be “served” on a witness does not mean that there

are no further requirements for valid service of the subpoena.

¶ 23 The subsections of C.R.C.P. 45 cannot be wrenched apart

such that C.R.C.P. 45(b)(2), which explains how the physical

subpoena must be provided to the witness, contains the only

requirements for valid “service.” Otherwise, a subpoena could be

deemed validly served even if not served within the “Time for

Service” specified in C.R.C.P. 45(b)(1). The “service” language of

C.R.C.P. 45 — subsection (b) — must be read as a coherent whole

that sets forth all requirements for valid service of a subpoena,

whether they are contained in C.R.C.P. 45(b)(2) or in another

subsection of C.R.C.P. 45(b). (The dissent suggests that the failure

to tender the required mileage fee may render the subpoena itself

invalid and unenforceable, even though such failure does not affect

the validity of service of the subpoena. We need not reach this

11
issue, however, because, as noted in infra Part III, it is not properly

before us.)

¶ 24 For these reasons, we conclude that the 2012 amendments did

not change the prior law that a subpoena is not validly served if the

witness is not tendered a required fee. (Our analysis does not apply

to subpoenas for which a mileage fee is not required. See C.R.C.P.

45(b)(3) (“Payment for mileage need not be tendered when the

subpoena issues on behalf of the state of Colorado or any of its

officers or agencies.”)) While we cannot condone a witness’s refusal

to comply with a validly served subpoena, we also cannot condone a

witness’s punishment for noncompliance with an invalidly served

subpoena.

C. Analysis

¶ 25 As noted above, Fogel’s argument includes the general

contention that a subpoena is not validly served if the witness is not

tendered the required mileage fee. He cites to Stubblefield and In re

Marriage of Dauwe in support of this contention. We agree with

Fogel’s readings of these cases. As explained above, the 2012

amendments did not change the rule reflected in Stubblefield and In

re Marriage of Dauwe that a subpoena is not validly served if the

12
witness is not tendered a required fee. (Fogel also cites to cases

interpreting the analogous federal rule. Fed. R. Civ. P. 45 provides

that “[s]erving a subpoena requires delivering a copy to the named

person and, if the subpoena requires that person’s attendance,

tendering the fees for 1 day’s attendance and the mileage allowed by

law.” Fed. R. Civ. P. 45(b)(1). Under both C.R.C.P. 45(b)(3) and

Fed. R. Civ. P. 45(b)(1), a subpoena is not validly served if the

witness is not tendered the required mileage fee. We need not

review cases applying Fed. R. Civ. P. 45, however, because the

language of C.R.C.P. 45(b)(3) is clear on this point.)

¶ 26 But the record is not clear regarding a material fact —

although it indicates that Fogel was not tendered the required

mileage fee together with the subpoena, it does not specify whether

the plaintiff tendered the required mileage fee to him “within a

reasonable time after service of the subpoena.” C.R.C.P. 45(b)(3).

We therefore remand to the trial court for a determination of

whether Fogel was paid the mileage fee after the process server left

the subpoena in his front door.

¶ 27 For the reasons explained above, if Fogel was tendered the

mileage fee “within a reasonable time after service of the subpoena,”

13
the subpoena was properly served on him and his conviction for

contempt was valid. If, however, he was not tendered the mileage

fee “within a reasonable time after service of the subpoena,” he was

not properly served, and the trial court erred in finding Fogel in

contempt.

III. Fogel’s Additional Argument

¶ 28 In addition to arguing that the plaintiff’s failure to tender the

required mileage fee resulted in invalid service, Fogel contends in

his opening brief that the failure to tender the mileage fee also

invalidated the subpoena itself. But Fogel did not raise this

argument in the trial court and cites to no authority supporting this

argument in his brief. Because Fogel did not cite to any authority

to support this contention or support it with substantial argument,

we decline to address it. See Taylor v. Taylor, 2016 COA 100, ¶ 13,

381 P.3d 428, 431 (declining to address the defendant’s argument

because it was raised for the first time on appeal and “[b]ecause

defendant’s contention [was] . . . unsupported by any substantial

argument . . .”); People v. Wallin, 167 P.3d 183, 187 (Colo. App.

2007) (declining to review issues that were presented in a

“perfunctory or conclusory manner”).

14
IV. Conclusion

¶ 29 The order is reversed and the case is remanded to the trial

court for a finding of whether the plaintiff tendered the required

mileage fee to Fogel “within a reasonable time after service of the

subpoena.” If so, the court may reinstate Fogel’s conviction for

contempt. Fogel’s conviction must be set aside, however, if the

required mileage fee was not tendered to Fogel “within a reasonable

time after service of the subpoena.”

JUDGE RICHMAN concurs.

JUDGE PAWAR dissents.

15
JUDGE PAWAR, dissenting.

¶ 30 The majority concludes that under Colorado Civil Procedure

Rule 45(b)(3), tendering a required mileage fee is a necessary

component of valid service. I dissent from this conclusion for two

reasons.

¶ 31 First, I believe the majority reaches this conclusion only by

addressing an issue that is not properly before us. The only issue

litigated below and raised on appeal is whether, based on Rule

45(b)(3), failing to tender the required mileage fee simultaneously

with the subpoena invalidated service. The majority addresses a

different issue that was raised neither below nor on appeal: whether

failing to tender the mileage fee at any time before Fogel’s

appearance date invalidated service. Only the latter, unraised issue

requires us to decide whether the mileage fee is a required

component of valid service.

¶ 32 Second, while I deem it unnecessary to resolve the appeal, I

disagree with the majority’s conclusion that tendering the mileage

fee is required for valid service. Rule 45(b)(3) explicitly

contemplates tendering a required mileage fee “after service of the

subpoena.” Based on this plain language, I conclude that valid

16
service and tendering the mileage fee are separate — although a

mileage fee may be required, tendering it is not a necessary

component of valid service.

¶ 33 Based on my interpretation of Rule 45, I conclude that Fogel

was validly served. I would therefore affirm his contempt

conviction.

I. Background

¶ 34 Marshall Fogel had been a practicing attorney for over fifty-five

years, including several years as a deputy district attorney. At the

contempt hearing, he was represented by counsel and elected not to

testify, as was his constitutional right. The process server was the

only witness and testified to the events described in the majority

opinion.

¶ 35 Fogel argued, through counsel, that he was never properly

served with the subpoena for two reasons: (1) the process server

never told Fogel that the “documents” were a subpoena and never

saw Fogel physically accept the subpoena; and (2) the subpoena

was not accompanied by the mileage payment required by Rule

45(b)(3).

17
¶ 36 The trial court ruled that Fogel received the subpoena and that

the absence of the mileage payment at the time the subpoena was

delivered did not render the service invalid. Addressing its factual

findings directly to Fogel, the court found that “a process server

appears at your house” and “you give him a fake name and you

close the door.” The trial court rejected Fogel’s argument that he

either did not receive or did not know the contents of the subpoena,

finding that it was “contrary to the evidence that I’ve heard today”

and “contrary to your lifetime as a lawyer.” The court therefore

ordered Fogel in contempt.

¶ 37 At the sentencing phase of the hearing, Fogel elected to make

a statement on his own behalf. He did not express remorse or

accept responsibility for his actions. Instead, he recounted, at

length, his professional accomplishments, reputation, and

contributions to the bar. Rather than ask for a less severe penalty,

he urged the trial court to reconsider its finding of contempt.

¶ 38 The trial court declined to do so. Instead, the court found that

his “legal acumen” was “an aggravating circumstance.” As the trial

court put it directly to Fogel, “[a] lawyer of your stature knows

better.” The court explained to Fogel that if there isn’t “real

18
consequence” for a witness’s failure to comply with a subpoena,

“the foundation of our justice system crumbles.” The trial court

therefore imposed a thirty-day jail sentence, which it subsequently

reduced to fifteen days after Fogel fell ill between the hearing and

the beginning of his sentence.

II. The Issue the Majority Resolves is Not Properly Before Us

¶ 39 Rule 45(b)(3) provides that if a subpoena requires a person’s

attendance, the mileage fee “must be tendered to the subpoenaed

person at the time of service of the subpoena or within a reasonable

time after service of the subpoena, but in any event prior to the

appearance date.” (Emphasis added.)

¶ 40 The question the majority answers is whether, under this rule,

Fogel was validly served if the mileage fee was never tendered. But

this issue was not litigated below. Instead, the only issue presented

to and resolved by the trial court was whether the failure to tender

the mileage fee simultaneously with the subpoena invalidated

service.

¶ 41 This was Fogel’s argument before the trial court, in his

counsel’s words:

19
The second part of the argument is,
specifically, Rule 45 has very specific
requirements and this is proof beyond a
reasonable doubt that the party who’s being
served must, and this is not discretionary,
must be tendered a check for witness fees or
mileage and that’s required under the rule that
says must. It doesn’t say can or should be.
Must. There’s not evidence that Mr. Fogel was
tendered in this [sic] documents that were put
in the door any witness or mileage fees. The
reason this is important is because the case
law specifically states that there is no mileage
or witness fee attached to this, then that’s not
perfected service where someone can then be
held in contempt of Court.

(Emphasis added.)

¶ 42 It was clear that Fogel’s argument in the trial court was that

the failure to tender the mileage fee at the time he received the

subpoena rendered service invalid. Indeed, that is the only

argument the trial court addressed:

So the only remaining issue, really, in my
mind is whether somehow by failing to include
a mileage [fee], he somehow renders a notice of
the (indiscernible) to attend a court proceeding
ineffective and I’m not a real -- I thought
(indiscernible) authority (indiscernible)
authority. I did some brief research as to
whether or not having failed to provide a
mileage fee that somehow that invalidates
otherwise personal service here. And, here
again, I’m talking about in the context of a
contempt proceeding where the purpose is to

20
compel the attendance of the witness to
provide testimony in a legal proceeding. I find
that it does not.1

¶ 43 On appeal, Fogel’s argument is likewise limited to the failure to

tender the mileage fee at the time he received the subpoena. Fogel’s

statement of preservation in his opening brief reads as follows: “Mr.

Fogel asserted that the subpoena duces tecum that was left in his

front door was not accompanied by a check or other payment for

mileage. The Court found that there was no evidence of payment

for mileage, but found that the subpoena was valid.” At every turn,

Fogel’s opening brief addresses only the failure to tender the

mileage fee at the same time as the subpoena:

 “The Court, in addressing the process server’s failure to

pay the mileage fee, stated . . . .” (Emphasis added.)

 “Plaintiff’s counsel, through its process server, failed to

tender payment for mileage.” (Emphasis added.)

1The trial court did not, as the majority writes, conclude that the
mileage fee requirement did not apply because this was a contempt
proceeding against a witness. Instead, the court addressed the
narrower question of “whether or not having failed to provide a
mileage fee . . . somehow . . . invalidates otherwise personal
service.” The court found “that it does not.”

21
 Quoting Rule 45(b)(3), “‘[i]f the subpoena requires a

person’s attendance, the payment for 1 day’s mileage

allowed by law must be tendered to the person at the time

of service of the subpoena . . . .’ (Emphasis added.) This

is a requirement of valid service.” Note here that Fogel

omitted the portion of Rule 45(b)(3) allowing for the

mileage fee to be tendered “within a reasonable time after

service.” C.R.C.P. 45(b)(3). That portion of the rule was

irrelevant to his argument because his argument was

limited to the failure to tender the mileage fee at the

same time as the subpoena.

¶ 44 Mistakenly equating the Colorado and federal rules, Fogel goes

on to argue that “[f]ederal courts have witness and mileage fees that

must be tendered concurrently with a subpoena. These rules

require simultaneous tendering of witness fees and reasonably

estimated mileage allowed by law with the service of a subpoena.”

(Emphasis added.) Indeed, the only authority Fogel cites on appeal

stands for the proposition that a mileage fee must be tendered

simultaneously with the subpoena.

22
¶ 45 Despite all this, the majority concludes that the question of

whether failure to pay the mileage fee at all invalidates service is

properly before us based on Fogel’s statement in his opening brief

that “[f]ailure to pay the required mileage fee renders the subpoena

invalid.” If anything, this statement argues that failure to pay the

mileage fee invalidates the subpoena itself, not service (an argument

the majority and I agree is not before us).

¶ 46 Based on the proceedings below and Fogel’s argument on

appeal, I conclude that the only issue before us is whether service

was invalid because the mileage fee was not tendered

simultaneously with the subpoena. This narrow, properly raised

issue is easily resolved based on the plain language of the rule.

Rule 45(b)(3) does not require that the mileage fee be tendered at

the same time as the subpoena. C.R.C.P. 45(b)(3) (mileage fee may

be tendered “within a reasonable time after service of the

subpoena”). Because this is true regardless of whether the mileage

fee is required for valid service, I would resolve this appeal without

addressing whether the mileage fee is a component of service. The

majority presumably agrees with this interpretation of Rule 45, as

far as it goes. Thus, if the majority agreed that the only issue

23
before us was Fogel’s argument that service was invalid because the

mileage fee was not tendered simultaneously with the subpoena, we

would unanimously affirm his contempt conviction.

¶ 47 But the majority improperly expands Fogel’s argument. In the

majority’s view, Fogel argues that service was invalid because he

never received the mileage fee. Resolving this argument requires

the majority to address whether tendering the mileage fee is a

required component of valid service. The majority determines that

it is. But because this issue was not raised below, there was no

reason for the trial court to make, and indeed the court did not

make, factual findings about whether Fogel ever received the

mileage fee at any time before the appearance date. The majority

therefore must remand the case to the trial court to make factual

findings on this new issue.

¶ 48 In short, by improperly expanding Fogel’s argument, the

majority turns what would have been a unanimous unpublished

opinion into a published one in which the publishable issue (1) was

not raised below, (2) was not raised on appeal, and (3) requires a

24
remand for further factual findings precisely because it was not

raised below.2

¶ 49 I would resolve this appeal by addressing only the narrow

question of whether service was invalid because the mileage fee was

not tendered at the same time as the subpoena. On that issue, I

would affirm. But because the majority expands Fogel’s argument

and concludes that tendering the mileage fee is a required

component of valid service, I explain why I disagree with that

conclusion.

III. Tendering the Mileage Fee is Not a Component of Valid Service

¶ 50 The majority concludes that validly serving a subpoena

requires the serving party to tender the mileage fee. To reach this

conclusion, the majority relies on a previous version of the rule and

cases interpreting it, as well as minutes from a Civil Rules

Committee meeting. These tools of statutory interpretation would

2 Although not relevant to the party presentation analysis above, I
note that the majority’s conclusion is especially problematic given
the unique circumstances of this case. In the trial court, the
prosecuting party was not the People of Colorado, but rather one of
the private parties in the civil case out of which this contempt
proceeding arose. That private prosecuting party did not file a brief
or even enter an appearance in this appeal. As a result, it is
unclear who, if anyone, will prosecute this case on remand.

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be appropriate if the plain language of the Rule were ambiguous.

But Rule 45 is not ambiguous. Its plain language contemplates

tendering the mileage fee after service is accomplished. I would

therefore apply the Rule as written and hold that while required by

Rule 45, tendering the mileage fee is not a requirement of valid

service.

¶ 51 Rules of statutory construction apply to our interpretation of

the civil rules. See Watson v. Fenney, 800 P.2d 1373, 1375 (Colo.

App. 1990). Accordingly, our goal is to ascertain and apply the

drafter’s intent. Id. “[W]hen the language employed [in a rule] is

plain and the meaning [is] clear, it must be applied as written.” Id.

Only when the language of the rule is ambiguous do we resort to

additional interpretive tools. See People v. Mosley, 397 P.3d 1122,

1126 (Colo. App. 2011), aff’d, 2017 CO 20.

A. Rule 45 is Unambiguous

¶ 52 As discussed above, Rule 45(b)(3) provides that a required

mileage fee must be tendered “at the time of service” or “within a

reasonable time after service” as long as it is “prior to the

appearance date.” The rule explicitly contemplates tendering the

mileage fee “after service of the subpoena.” C.R.C.P. 45(b)(3). This

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establishes that valid service can be accomplished without

tendering the mileage fee. The mileage fee is required, but it is not

a required component of valid service. Nothing about the plain

language of this rule is ambiguous. I would therefore conclude

that, based on the unambiguous plain language of the rule,

tendering the mileage fee is not required for valid service.

¶ 53 The majority’s reliance on Stubblefield v. District Court, 198

Colo. 569, 603 P.2d 559 (1979), and In re Marriage of Dauwe, 148

P.3d 282 (Colo. App. 2006), to come to a contrary conclusion is

misplaced. Those cases interpreted an old version of Rule 45 that is

substantively different than the current one at issue here. Before it

was amended in 2012, Rule 45 provided that “[s]ervice of a

subpoena upon a person named therein shall be made by delivering

a copy thereof to such person and by tendering to such person the

fees for one day’s attendance and the mileage allowed by law.”

C.R.C.P. 45(c) (2011) (emphasis added). The old rule provided that

service “shall” be made by (1) delivering a copy of the subpoena to

the person “and” (2) tendering attendance and mileage fees. Id.

The plain language of the old rule clearly established that payment

of attendance and mileage fees was a requirement of valid service.

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But the current rule does not. As discussed above, the current rule

applicable in this case explicitly contemplates tendering mileage

fees “after service.” C.R.C.P. 45(b)(3).

¶ 54 I therefore conclude that based on the plain language of Rule

45(b)(3), tendering a required mileage fee is not a necessary

component of valid service.

B. Beyond the Plain Language

¶ 55 Although I find it unnecessary and improper to consider

interpretive tools beyond the plain language of the rule, I

nevertheless observe that the tools used by the majority do not

support its conclusion. The majority relies on two interpretive

tools: the prior version of the rule and the history of the rule’s most

recent amendment, in the form of the Civil Rules Committee

meeting minutes. Neither of these sources supports the majority’s

conclusion that tendering the mileage fee is a required component

of valid service. In fact, they support the contrary conclusion.

¶ 56 As discussed above, Rule 45 used to provide that “[s]ervice of a

subpoena” “shall” be made by delivering a copy of the subpoena

“and” by tendering the mileage fee. C.R.C.P. 45(c) (2011). The old

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rule explicitly made tendering the mileage fee a required component

of valid service.

¶ 57 The drafters removed this explicit language when they

amended the rule. And they replaced it with language that makes

clear that service can be accomplished before the mileage fee is

tendered. C.R.C.P. 45(b)(3) (The mileage fee “must be tendered to

the subpoenaed person at the time of service of the subpoena or

within a reasonable time after service of the subpoena, but in any

event prior to the appearance date.”) (emphasis added).

¶ 58 The majority’s assignment of meaning to this amendment is

perplexing. The majority recognizes that the old rule “clearly” made

the mileage fee a component of valid service. Supra ¶ [ ]. The

majority also recognizes that the drafters removed this part of the

rule. Yet the majority concludes that the mileage fee is nevertheless

a component of valid service. According to the majority, the

drafters’ removal of language from the rule demonstrates their

intent that the deleted language nevertheless remain in force.

¶ 59 The majority finds additional support for its conclusion in

meeting minutes of the Civil Rules Committee. The majority writes

that these meeting minutes contain no suggestion that the drafters

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intended that, under the current rule, valid service could occur

without tendering the mileage fee. The history may contain no

evidence of this intent. But the change to the plain language of the

rule does. Again, the old rule clearly and explicitly required

tendering the mileage fee for valid service. The drafters removed

that requirement and added language that contemplates tendering

the mileage fee “after service of the subpoena.” C.R.C.P. 45(b)(3).

¶ 60 Additionally, I note that the majority’s interpretation reads

unnecessary conflict into Rule 45. According to the majority,

tendering the mileage fee is still a prerequisite for valid service. But

the mileage fee can be tendered at any time “prior to the appearance

date.” C.R.C.P. 45(b)(3). This means that if the mileage fee is

tendered after the subpoena is physically delivered, valid service is

not accomplished until the mileage fee is tendered. Because service

is not valid until the mileage fee is tendered, and the mileage fee

may be tendered at any time “prior to the appearance date,” service

can be accomplished at any time “prior to the appearance date.” Id.

¶ 61 This conflicts with Rule 45(b)(1)(A) and (B). Rule 45(b)(1)(A)

requires subpoenas for trial or hearing testimony to be served no

later than forty-eight hours ahead of the trial or hearing. And Rule

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45(b)(1)(B) requires subpoenas for deposition testimony to be served

no later than seven days ahead of the deposition. Why would one

section of Rule 45 condone service at any time “prior to the

appearance date” (Rule 45(b)(3)) while another section require it to

be accomplished forty-eight hours or seven days in advance (Rule

45(b)(1))?

¶ 62 The majority answers this question with an unpersuasive

suggestion. According to the majority, “service of the subpoena” in

Rule 45(b)(3) refers only to physical delivery of the subpoena, not

valid service. (“Further, we don’t view the references to ‘service of

the subpoena’ in C.R.C.P. 45(b)(3) to mean that, after January 1,

2013, subpoenas could be validly served even if the witness was not

tendered the required mileage fee . . . . [T]he fact that the physical

subpoena must be ‘served’ on a witness does not mean that there

are no further requirements for valid service of the subpoena.”

Supra ¶ [ ]). This reading harmonizes the otherwise conflicting

deadlines discussed above. But Rule 45 is rife with references to

“service” of a subpoena. How do we know when “service” refers to

mere physical delivery of the subpoena and when it refers to legally

valid service?

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¶ 63 In sum, I conclude that tendering the mileage fee is not a

component of valid service. It therefore does not matter whether

Fogel received the mileage fee. Because he physically received the

subpoena, service was valid. It may be true, as the majority

recognizes, that the subpoena itself was invalid and unenforceable

if Fogel never received the mileage fee. But that issue, the majority

and I agree, is not before us. Both in the trial court and on appeal,

Fogel attacked only the validity of service.

¶ 64 I would therefore affirm the contempt order.

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