2014 COA 150
Colo. Ct. App.2014Background
- DMSA governs debt-management services in Colorado and requires registration, disclosures, and compliance; plaintiff Colorado seeks penalties and restitution for defendants’ violations.
- Defendants Johnson Law Group PLLC (Florida) and Clint L. Johnson operated debt-management services in multiple states, including two service types: debt-management plans and debt-settlement plans.
- District court granted partial summary judgment in 2012 finding regulation applicability, registered requirements, and liability for restitution; issued injunction and penalties.
- Defendants raised the legal services exception late, just before trial, and trial court sustained objections against considering the exception; district court later ruled the exception jurisdictional and dismissed, denying fees.
- Plaintiff appeals, arguing the legal services exception does not implicate jurisdiction and therefore dismissal was improper; this court agrees, reverses, and remands for penalties; cross-appeal for fees becomes moot.
- Remand ordered to determine penalties; factual record shows waiver of the defense due to timing and trial procedures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the legal services exception implicate subject matter jurisdiction? | Colorado argues exception is not jurisdictional. | Johnson argues exception removes liability under DMSA. | Not jurisdictional; waivable affirmative defense. |
| Is the legal services exception an affirmative defense? | Exception defeats liability despite proof of elements. | Exception should limit regulation of attorney-providing services. | Affirmative defense. |
| Was the legal services exception timely asserted or waived? | Defendants did not timely plead it. | Exception existed earlier; timely assertion was possible. | Waived due to failure to plead and late trial timing. |
| Does waiver doom the district court’s jurisdictional ruling or the case itself? | Record shows district court misapplied law by dismissing. | Waiver precludes consideration of the defense and supports dismissal. | Waiver prevented merits ruling on the exception; reversal warranted. |
Key Cases Cited
- In re J.C.T., 176 P.3d 726 (Colo.2007) (subject-matter jurisdiction reviewed de novo; depends on claim nature)
- SR Condos., LLC v. K.C. Constr., Inc., 176 P.3d 866 (Colo.App.2007) (affirms district court can resolve disputes under non-jurisdictional defenses)
- Wood v. People, 255 P.3d 1136 (Colo.2011) (explicit jurisdictional prerequisites must be explicit; not present here)
- Arnold v. Anton Coop. Assoc., 293 P.3d 99 (Colo.App.2011) (general jurisdiction remains unless explicit limitation; DMSA lacks explicit one)
- Crowe v. Tull, 126 P.3d 196 (Colo.2006) (prosecuting attorneys for deceptive trade practices does not violate separation of powers)
- Tello, 192 P.3d 513 (Colo.App.2008) (affirmative defense; timing matters; waiver when not pleaded or tried)