Larry L. HALL and Craig A. Hammond, Petitioners, v. Patricia L. WALTER and Reuben A. Walter, Respondents.
No. 97SC100
Supreme Court of Colorado, En Banc.
Dec. 14, 1998.
969 P.2d 224
In this case, the court holds that Martinez cannot assert a private claim under the CCPA because she fails the third prong of the Majority‘s test in Hall; that is, she fails to establish that Dr. Lewis‘s alleged misrepresentations to State Farm significantly impacted the public as actual or potential consumers of the doctor‘s services. See maj. op. at 222.
I would reach that same result for the reason that I articulated in Hall: a plaintiff cannot recover under the CCPA unless she is an actual or potential consumer of the defendant‘s goods or services. Dr. Lewis was hired by State Farm to examine Martinez for purposes of evaluating her insurance claim. He was not Martinez‘s treating physician, nor, as the court concludes today, did he owe her a duty of care. Indeed, Martinez was never exposed to any of Dr. Lewis‘s alleged misrepresentations.
Thus, Martinez was not a consumer of Dr. Lewis‘s services, and she therefore did not have standing to bring a private action under the CCPA. Accordingly, I concur with the judgment of the Majority.
Roberta Earley, Colorado Springs, for Respondents.
Kennedy & Christopher, P.C., John R. Mann, Denver, for Amicus Curiae Colorado Defense Lawyers Association.
Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Garth Lucero, Deputy Attorney General, Jan Michael Zavislan, First Assistant Attorney General, Diana R. Maurer Schatz, Assistant Attorney General, Civil Litigation Section, Denver, for Amicus Curiae, Colorado Attorney General.
Chief Justice MULLARKEY delivered the opinion of the court.
We granted certiorari to review the court of appeals’ judgment in Walter v. Hall, 940 P.2d 991 (Colo. App. 1996), affirming the trial court‘s order awarding treble damages to the respondents, Patricia and Rueben Walter (the Walters), pursuant to
The Walters initiated proceedings in the Las Animas County District Court (trial court) against petitioners Larry Hall and Craig Hammond, seeking damages for trespass, misrepresentation, unlawful taking, and deceptive trade practices contrary to the Colorado Consumer Protection Act (CCPA). At the conclusion of the trial, a jury verdict was entered in favor of the Walters in the amount of $72,000 for actual damages on the trespass claim and $28,000 in punitive damages because such conduct was willful and wanton. The trial court further determined that the actual damages as found by the jury were to be trebled because of a jury finding that Hall and Hammond had violated the CCPA.
On appeal, the court of appeals affirmed the judgment, concluding, as relevant here, that the respondents had standing to maintain this action under the CCPA and that the respondents presented sufficient evidence of causation at trial to recover under the CCPA. We now conclude that the respondents have standing under the CCPA, and we affirm the court of appeals’ judgment.
I.
Beginning in 1985, Hall and Hammond offered individual lots for sale in a subdivision known as Longhorn Ranch Phase III. Because Phase III of Longhorn Ranch (Longhorn Lots) had not been registered with the Colorado Real Estate Commission (Commission), Hall and Hammond applied in 1991 to the Commission for registration and certification as the subdivision developer. As part of the registration and certification process, they disclosed that at least forty-seven of the Longhorn Lots had been sold prior to the registration. They also stated that purchasers would have legal access to their properties within the Longhorn Lots by two access routes. One of the access routes was a road that ran through a pasture owned by the Walters.
Hall and Hammond widely advertised these lots and offered them for sale to the
On January 30, 1992, the Walters filed a complaint for trespass, misrepresentation, unlawful taking, and deceptive trade practices against Hall and Hammond and their real estate partnership. The complaint requested both monetary and injunctive relief. On or about February 19, 1992, Hall filed a separate action against the Walters seeking an easement across the Walters’ pasture. A hearing was held on March 2, 1992, at which time a preliminary injunction was issued preventing further trespass across the Walters’ pasture. The two cases were then consolidated.
A jury trial was held in December 1994. Before submitting the case to the jury, the trial court found as a matter of law that the Walters’ road was not a public roadway and that Hall and Hammond had no ownership interest in that road.2 The trial court also determined as a matter of law that Hall and Hammond committed a trespass upon the property through the admitted breaking of a lock on the property‘s gates.3 The jury subsequently returned verdicts in favor of the Walters, finding that Hall and Hammond‘s actions had caused damages in the amount of $72,000, that Hall and Hammond had engaged in a deceptive trade practice, and that their actions were attended by wanton and willful disregard for the Walters’ rights and feelings warranting punitive damages in the amount of $28,000.4 Based on the jury‘s award of $72,000 for trespass and its finding that Hall and Hammond engaged in deceptive trade practices, the trial court trebled that amount pursuant to
On appeal, the court of appeals affirmed. The court of appeals found that the Walters had standing to maintain this action
II.
This case requires our construction of the Colorado Consumer Protection Act,
6-1-113. Damages. (1) The provisions of this article shall be available to any person in a civil action for any claim against any person who has engaged in or caused another to engage in any deceptive trade practice listed in
section 6-1-105 or6-1-105.5 .(2) [A]ny person who, in a private civil action, is found to have engaged in or caused another to engage in any deceptive trade practice listed in
section 6-1-105 or6-1-105.5 shall be liable in an amount equal to the sum of:(a) Three times the amount of actual damages sustained or two hundred fifty dollars, whichever is greater; and
(b) In the case of any successful action to enforce said liability, the costs of the action together with reasonable attorney fees as determined by the court.
A.
Several well established principles of statutory construction guide our interpretation of
Similarly, in May Department Stores, we interpreted the civil penalties provision of the CCPA, see
The parties offer differing views on the proper interpretation of
The Walters would have us construe the statute such that anyone could bring suit under the CCPA “as long as [he or she has] sustained damages as a result of the deceptive trade practices.” They argue that the legislature intended to encourage private parties “to pursue cases against ... business practices which [have] been identified in Colorado as deceptive trade practices.” The Walters agree with Hall and Hammond that a plaintiff must meet the Wimberly standing test; however, they contend that the court of appeals correctly found standing in this case.
We decline to read the statute as expansively as the Walters would have us do. Yet, based on the analysis below, we agree with the trial court‘s judgment that the Walters have standing to bring a claim under the CCPA. We now clarify the circumstances under which a nonconsumer has a cause of action under the CCPA.
B.
The Wimberly standing inquiry requires a court to determine “whether the plaintiff has suffered injury in fact to a legally protected interest as contemplated by statutory or constitutional provisions.” Id. We
We also reject a reading of the phrase that would make “any person” indistinguishable from “any consumer” under the CCPA. If possible, we must give effect to every word of an enactment. See Zamarripa v. Q & T Food Stores, Inc., 929 P.2d 1332, 1341 (Colo. 1997); Charlton v. Kimata, 815 P.2d 946, 949 (Colo. 1991). The word “consumer” and the phrase “any person” are each used intermittently throughout the statute. For example, in
We have previously recognized “consumer” to mean “a person who has been exposed to [the defendant‘s] violations and either purchases merchandise or undertakes other activities in reliance on the advertisement.” See May Dep‘t Stores Co., 863 P.2d at 973-74. Consequently, we have found that a consumer may be someone who “did not actually purchase the items.” See id. at 974. “Any consumer” under the statute thus means any actual or potential consumer. The plain meaning of “any person” is more expansive than that of “consumer.” Under the CCPA, “any person” must, therefore, encompass more than just actual or potential consumers.
Our understanding that “any person” includes at least some nonconsumers is consistent with the CCPA‘s punitive and deterrent functions. See Farmers Group, Inc. v. Williams, 805 P.2d 419, 422 (Colo. 1991) (noting that our purpose is to give effect to the legislative intent). The definition of “any person” determines plaintiffs to whom the treble damages and attorney fees provisions of the CCPA will be available for a private cause of action. See
Furthermore, our understanding that the private remedies serve a punitive and deterrent purpose is buttressed by the existence of a narrow exception set forth in subsection 6-1-113(2.5). This subsection explicitly limits a prevailing party‘s recovery to actual damages in the context of manufactured home purchases. See
C.
Having marked the boundaries, we now turn to the precise meaning of the phrase “any person.” There is no written or recorded record of the proceedings leading to the passage of the CCPA, and hence, we cannot rely upon legislative history to interpret the statute‘s language. See May Dep‘t Stores Co., 863 P.2d at 973 n. 9 (noting that there is no recorded legislative history for the CCPA); David B. Lee, Note, The Colorado Consumer Protection Act: Panacea or Pandora‘s Box?, 70 Denv. U.L. Rev. 141, 148 (1992).
The CCPA was based on the Revised Uniform Deceptive Trade Practices Act (Uniform Act), which was approved by the National Conference of Commissioners on Uniform State Laws and the American Bar Association in 1966. See Unif. Deceptive Trade Practices Act, 7A U.L.A. 265, 265 (1966) (historical note). In enacting the CCPA, however, the General Assembly departed significantly from the Uniform Act. See Unif. Deceptive Trade Practices Act, 7A U.L.A. at 271 (general statutory notes) (explaining that the Colorado version “contains numerous variations, omissions and additional matter which cannot be clearly indicated by statutory notes“). Moreover, the available remedy in the Uniform Act is limited to injunctive relief; the Uniform Act does not provide for private damages. See Unif. Deceptive Trade Practices Act § 3, 7A U.L.A. at 289-90. Under the Uniform Act, “a person likely to be damaged by a deceptive trade practice of another” may be granted an injunction against the deceptive practice. Id. Thus, there is no comparable provision in the Uniform Act to which we can turn for guidance.
States that have enacted private damages provisions have done so of their own accord. For example, Oregon, which also based its consumer protection statute on the Uniform Act, enacted a damages provision which is significantly different from that in the CCPA. The Oregon statute, unlike the CCPA, requires that a plaintiff demonstrate that the defendant wilfully violated Oregon‘s deceptive trade practices statute. Compare
As we did in May Department Stores, we find it helpful here in construing
The Massachusetts Supreme Judicial Court arrived at a similar conclusion in Maillet v. ATF-Davidson Co., Inc., 407 Mass. 185, 552 N.E.2d 95, 98-99 (Mass. 1990). In Maillet, the court rejected the defendant‘s argument that Massachusetts‘s consumer protection statute, which allows “any person” injured by a violation of the statute to bring suit, was limited to consumers in privity with the defendant. See id. Accordingly, the court held that the plaintiff, a printing company employee who was injured while operating a printing press, could sue the printing press manufacturer notwithstanding the fact that he was not in privity with the manufacturer and was not the purchaser of the printing press. See id.; see also Van Dyke v. St. Paul Fire & Marine Ins. Co., 388 Mass. 671, 448 N.E.2d 357, 359-60 (Mass. 1983).
The Illinois Consumer Fraud and Deceptive Business Practices Act (Illinois Act) provides that “any person who suffers damage” as a result of a violation of the Act may bring an action against the violator.
Likewise, in Washington State Physicians Insurance Exchange & Ass‘n v. Fisons Corp., 122 Wash. 2d 299, 858 P.2d 1054, 1060-61 (Wash. 1993), the Washington Supreme Court found that nonconsumers may have standing under the Washington Consumer Protection Act, which allows “any person” injured in his or her business or property by a violation of the statute to bring a civil action against the violator. The Fisons court explained: “Although the consumer protection statutes of some states require that the injured person be the same person who purchased goods or services, there is no language in the Washington Act which requires that a CPA plaintiff be the consumer of goods or services.” Fisons, 858 P.2d at 1061.
Washington state has long served as a model for the development of consumer protection legislation. See William A. Lovett, Private Actions for Deceptive Trade Practices, 23 Admin. L. Rev. 271, 275 (1971). Like the CCPA, Washington‘s consumer protection act (the Washington Act) provides a private right of action that the statute‘s plain
Based on the CCPA‘s language and our prior decisions, we are persuaded that an analogous five-element standard applies in Colorado. First, the CCPA requires the plaintiff to establish conduct by the defendant that constitutes a deceptive trade practice. See
Third, regarding public interest, our prior cases have recognized that the CCPA “is clearly enacted to control various deceptive trade practices in dealing with the public.” People ex rel. Dunbar v. Gym of America, Inc., 177 Colo. 97, 107, 493 P.2d 660, 665 (1972) (emphasis added). The CCPA regulates practices which “because of their nature, may prove injurious, offensive, or dangerous to the public.” Id.; see also People ex rel. MacFarlane v. Alpert Corp., 660 P.2d 1295, 1297 (Colo. App. 1982) (noting the substantial public protection emphasis of the CCPA).
While the public interest component is longstanding, we now recognize that a more precise reading of the statute‘s function requires an impact on the public as consumers of the defendant‘s “goods, services, or property.”
Fourth, as discussed earlier in this opinion, the standing analysis we defined in Wimberly v. Ettenberg, 194 Colo. 163, 570 P.2d 535 (1977), requires a plaintiff to have suffered injury in fact to a legally protected interest. See id. at 168, 570 P.2d at 539. This requirement is also implicit in our analysis in May Department Stores of the CCPA‘s civil penal-
Fifth, the plaintiff must be able to show that the defendant‘s actions in violation of the CCPA caused the plaintiff‘s injury. This requirement was contemplated as a general rule in Wimberly where we noted that although causation is not part of a threshold standing analysis, it is necessary to establish liability in a private cause of action: “[J]udgment on the merits imports a determination pursuant to due process that the injury in fact to plaintiff‘s legally protected right resulted from the alleged action of the defendant.” Wimberly, 194 Colo. at 168, 570 P.2d at 539; see also May Dep‘t Stores Co., 863 P.2d at 975-76.10
Because we find the five elements discussed above to be inherent in the CCPA and our relevant prior case law, we now hold that for purposes of a private cause of action pursuant to
III.
Applying our construction of
Second, there is no question that Hall and Hammond‘s deceptive practices occurred in the course of their business. The CCPA defines real property transactions to be part of regulated trade or business. See
In the present case the Walters demonstrated injury to their property from having their locks cut, their fences either cut or knocked down, and lease opportunities lost. It is undisputed that the Walters suffered injury. Hall and Hammond argue, however, that the injury was not to a “legally protected interest” under the Wimberly analysis. See Wimberly v. Ettenberg, 194 Colo. 163, 168, 570 P.2d 535, 539 (1977). They argue that the Walters have a legally protected interest “in keeping persons from trespassing on their property,” but that “injuries suffered as a result of such trespass are clearly not contemplated by the Consumer Protection Act.” Further, they assert that “[t]he nexus between the complained deceptive trade practice and the sustained injury is so attenuated as to be almost non-existent.” We disagree.
First, Hall and Hammond‘s argument fails to distinguish the question of standing from that of causation. Standing is a threshold question of law; causation is a question of fact which in this case the judge properly submitted to the jury. See Wimberly, 194 Colo. at 168, 570 P.2d at 539 (noting that a “typical lawsuit” raises three questions, the first two of which constitute the two-prong standing analysis and the third of which, causation, “is properly reserved for the trier of fact“). Second, their argument asserts in a conclusory and, we find, erroneous fashion that the Walters did not have a legally protected interest under the CCPA.
The CCPA does not specify injuries against which it is intended to guard. Its focus lies with defining prohibited actions that are likely to injure the public and specifying civil penalties and private remedies available for these violations. In terms of verbiage alone, two thirds of the statute‘s general provisions, Part 1 of the statute, is devoted to identifying prohibited deceptive trade practices.11 See
The Walters demonstrated injury to their property, both in the form of physical damage and business (lease) value. We find that injury to property, particularly property with business value, lies squarely within the interests that the CCPA is intended to protect. See Lexton-Ancira Real Estate Fund, 1972 v. Heller, 826 P.2d 819, 823 (Colo. 1992).
Furthermore, in looking again to other states’ consumer protection laws, we find that other jurisdictions consistently find injuries to property to be actionable. See, e.g.,
For the reasons discussed above, we hold that property is a legally protected interest under the CCPA and that a plaintiff may recover under section 6-1-113 for injury to property and property value provided that the plaintiff satisfies each element of the standard for a private CCPA cause of action announced in this opinion. That a plaintiff may have other statutory or common law causes of action based on the same set of facts does not affect the plaintiff‘s right to assert a claim under the CCPA. See Lexton-Ancira, 826 P.2d at 825 (noting that plaintiff may bring both CCPA and “other causes of action” based on the same facts).
Finally, we address the fifth element: causation. To recover under the CCPA, the Walters are required to prove that Hall and Hammond‘s misrepresentations caused the injury to their property. In affirming the trial court‘s decision, the court of appeals found it “undisputed that the actions and representations of defendants caused fences to be torn down, locks to be cut, and gates to be left open.” Walter v. Hall, 940 P.2d 991, 999 (Colo. App. 1996). Thus, the court of appeals affirmed the trial court‘s verdict for the Walters. See id.
We agree with the court of appeals that the evidence presented at trial was sufficient to establish causation between Hall and Hammond‘s CCPA violations and the subsequent injury to the Walters’ property. The existence of a causal link between a defendant‘s conduct and a plaintiff‘s injury is a question of fact. See Kaiser Found. Health Plan v. Sharp, 741 P.2d 714, 719 (Colo. 1987). The trial court instructed the jury on the Walters’ need to establish causation. The first question presented in Jury Instruction No. 1 read: “Did the plaintiffs incur damages or losses caused by the actions of the defendants?” Jury Instruction No. 13 instructed the jury on causation: “The word ‘caused’ as used in these instructions means an act or failure to act which in natural and probable sequence produced the claimed injury or loss.
IV.
Because we conclude that the Walters established the five elements necessary to sustain a private cause of action under section 6-1-113 of the Colorado Consumer Protection Act, we affirm the judgment of the court of appeals.
Justice SCOTT dissents.
Justice KOURLIS dissents.
Justice SCOTT, dissenting:
I respectfully dissent. While I agree with the test adopted by the majority for determining whether a plaintiff has standing under the Colorado Consumer Protection Act (CCPA), I disagree with the majority‘s conclusion that the Walters satisfy the test. Specifically, I would conclude that the Walters do not meet the third and fifth prongs of the test.
I.
The majority, relying upon Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wash. 2d 778, 719 P.2d 531 (Wash. 1986), adopts a five-prong test to determine whether the Walters have standing under the CCPA. I conclude that the Walters’ trespass claim against Hall and Hammond does not satisfy the third prong of that test, that is, that the trespass did not “significantly impact the public as actual or potential consumers of the defendant‘s goods, services, or property.” Maj. op. at 235-236. In Hangman Ridge, the Washington State Supreme Court defined the third prong as “a public interest showing.” 719 P.2d at 535. The court then went on to explain, with respect to the public interest showing, that “[w]here the transaction was essentially a private dispute, it may be more difficult to show that the public has an interest in the subject matter.... [I]t is the likelihood that additional plaintiffs have been or will be injured in exactly the same fashion that changes a factual pattern from a private dispute to one that affects the public interest.” Id. at 538 (citations omitted) (emphasis added). The court then lists several factors which would indicate a public interest in this context:
(1) Were the alleged acts committed in the course of defendant‘s business? (2) Did defendant advertise to the public in general? (3) Did defendant actively solicit this particular plaintiff, indicating potential solicitation of others? (4) Did plaintiff and defendant occupy unequal bargaining positions? As with the factors applied to essentially consumer transactions, not one of these factors is dispositive, nor is it necessary that all be present. The factors in both the “consumer” and “private dispute” contexts represent indicia of an effect on public interest from which a trier of fact could reasonably find public interest impact.
Taking guidance from this additional explanation in Hangman Ridge, I would conclude that the public interest is not implicated in this instance. The injury to the Walters, trespass, is qualitatively different than the injury allegedly suffered by the public as a result of Hall and Hammond‘s misrepresentations. There is virtually no likelihood that additional plaintiffs would be injured in “exactly the same fashion” the Walters were, as they were the only homeowners who could suffer trespass on that land. Id. Thus, the wrong is private, not public, and the Walters, who were properly awarded $72,000 as a consequence of the
II.
I would also conclude that the Walters do not satisfy the fifth prong, namely that “the plaintiff must be able to show that the defendant‘s actions in violation of the CCPA caused the plaintiff‘s injury.” Maj. op. at 235.
Here, the defendants’ actions for which damages were calculated and awarded constituted trespass. Nowhere in the CCPA, however, is trespass listed as a deceptive trade practice. Moreover, the jury verdict form did not contemplate damages attributable to any CCPA violations. Hence, on this record, the only claim on which the jury awarded damages was the trespass claim. In addition, even if we view the misrepresentations to potential purchasers as having been proven as a violation of the CCPA, I fail to see on this record how Hall and Hammond‘s misrepresentations to potential purchasers directly caused the Walters’ injury. The basis for the Walters’ damages was the loss of pasture leases, which was caused by Hall and Hammond‘s acts of cutting locks and knocking down fences. These damages for trespass, for which the jury awarded $72,000 in actual damages and $28,000 in punitive damages, had no relation to the misrepresentations, and therefore, there can be no causal link between the two.
III.
Accordingly, I would vacate the treble damages awarded for trespass and award the Walters $72,000 in actual damages and $28,000 in punitive damages resulting from the trespass.
Justice KOURLIS dissenting:
Because I view the remedies of the Colorado Consumer Protection Act (“CCPA” or “Act“) to be intended for consumers, I would reach a result different from that reached by the Majority. The Majority delineates five requirements that a plaintiff must meet in order to have standing to bring a private cause of action under the CCPA. See maj. op. at 235. In my view, the Majority‘s test extends the limits of standing in a manner inconsistent with the purpose, text, and policy of the Act. Because I would hold that standing under the CCPA is limited to consumers, I respectfully dissent.
I.
Patricia and Reuben Walter sued Larry Hall, Craig Hammond and their real estate partnership for trespass, misrepresentation, unlawful taking, and deceptive trade practices. The trial court determined as a matter of law that Hall and Hammond had no ownership interest in the property and that they had committed trespass. The jury ultimately awarded the Walters $72,000 in damages for the trespass, and $28,000 in punitive damages.1 The practical import of the issue now before the court concerns whether those damages should be trebled because of a deceptive trade practice.
Certainly, the Walters were injured, but the law provided a remedy for that injury in the form of damages for trespass and willful and wanton conduct. In my view, it was not the intent of the General Assembly in enacting the CCPA to permit plaintiffs such as these to reap the benefit of trebled damages
II.
The CCPA is a comprehensive piece of legislation designed, in my view, to protect the consuming public from the deceptive trade practices of sellers. Accordingly,
(1) that the defendant engaged in an unfair or deceptive trade practice; (2) that the challenged practice occurred in the course of 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.
Maj. op. at 235. Although I agree with the Majority that a private right of action is not available to “any person,” I would read the statute more narrowly to limit the cause of action to persons or entities who are “consumers.”2
III.
The text of
Presuming, then, that the language “any person” cannot be read to mean that anyone is able to sue under the CCPA, the task remains of determining what restrictions define the class of plaintiffs who are entitled to bring an action. The title and purpose of the CCPA, the language of its collective provisions, and case law from jurisdictions with similarly worded statutes lead me to conclude that a private right of action should be limited to consumers.
A.
As the majority notes, there is no legislative history upon which to base our interpretation of the CCPA. See maj. op. at 232. We must, therefore, turn to other sources for guidance in statutory interpretation. One such source is the title of the legislation. See People v. Zapotocky, 869 P.2d 1234, 1239 (Colo. 1994) (noting that a court “may consider the title of the legislation in resolving uncertainties concerning legislative intent“). A natural inference to draw from the title of the Colorado Consumer Protection Act is that its aim is to provide remedies for consumers.
The manner in which we have previously construed the purposes of the CCPA supports this conclusion. In Western Food Plan, Inc. v. District Court, for example, we
Hence, the objectives of the CCPA, as well as its title, indicate that the remedies available under the Act‘s private action provision are limited to consumers. Language elsewhere in the statute buttresses this conclusion.
B.
In interpreting the private action provision of
For example, the word “consumer” appears in the civil penalties provision of the CCPA.4
Another indication that the Act is limited to consumers is in the text of
C.
In addition to the evidence within the text of the CCPA and in its interpretation by the Colorado courts, courts in other states with similar legislation have concluded that private actions under consumer protection acts should be limited to consumers.6 Oregon, for
Like the CCPA, the consumer protection act of Oregon is derived from the Uniform Deceptive Trade Practices Act (“UDTPA“). See Unif. Deceptive Trade Practices Act, 7A U.L.A. 265 (1966). The private remedy provision of the Oregon statute is similar to that of the CCPA, providing a cause of action for “any person” who suffers a loss as a result of a deceptive trade practice. See
Minnesota‘s consumer protection statute also provides that “any person” injured by a violation of that act may bring a civil action for damages. See
Read literally, “any person” means just that. But read in context, having in mind the purpose of the statute, “any person” means any consumer....
[T]he legislative intent is directed at deceptive practices to which the consumer public is prey, and ... the legislature did not intend thereby to cover ad hoc deceptions arising in private disputes.
Id. at 9-10. Like the Minnesota statute, the CCPA is aimed at remedying consumer fraud. See Western Food Plan, 198 Colo. at 256, 598 P.2d at 1041. Therefore, actions under its provisions should be limited to consumers.
IV.
The Majority‘s test requires that the challenged practice significantly impact the public as actual or potential consumers of the defendant‘s goods, services, or property.7 This requirement is overbroad in that it allows any injured person to bring suit if he can show impact on the public, regardless of
Application of the Majority‘s test to the present case illustrates the problem of the test‘s overbroad scope. The Majority allows the Walters to recover, despite the fact that the misrepresentations that constituted the deceptive trade practices prohibited by the statute were not aimed at them nor relied upon by them. The Walters were simply not a part of the market to whom Hall and Hammond were advertising. In essence, the Majority‘s approach allows the Walters to recover for an injury suffered by the public: namely, exposure to the deceptive trade practice.
A more precise means of implementing the goal of protecting consumers, and one more consistent with the title, purpose, and collective language of the statute, is to limit the actions initiated by private persons under the CCPA to those brought by actual or potential consumers. I do not read the CCPA as applicable to non-consumers, and therefore, I respectfully dissent.
Notes
We granted certiorari on the following issue:
Whether the court of appeals erred in determining that the respondents enjoyed standing to maintain a claim for a violation of the Colorado Consumer Protection Act (CCPA), see
§§ 6-1-101 to -305, 2 C.R.S. (1992) , where the respondents were third-party non-consumers, and where no causal connection was shown between the CCPA violation and the respondents’ damage.
(Emphasis added.) The underscored language is contrary to the undisputed facts showing a causal connection between the CCPA violation and the respondents’ injury. See Walter v. Hall, 940 P.2d 991, 998-99 (Colo. App. 1996). Therefore, we find that certiorari was improvidently granted on the issue as framed by the petitioners. Striking the offending language, we address the question presented by the petitioners as follows:
Whether the court of appeals erred in determining that the respondents enjoyed standing to maintain a claim for a violation of the Colorado Consumer Protection Act (CCPA), see
§§ 6-1-101 to -511, 2 C.R.S. (1998) , where the respondents were third-party non-consumers.
We refer to the present version of the Colorado Revised Statutes because the relevant provision, section 113(1), has not changed. Both petitioners and respondents effectively briefed and argued the issue that we now consider. See Lunsford v. Western States Life Ins., 908 P.2d 79, 85 n. 14 (Colo. 1995).
The court of appeals struck the $28,000 in punitive damages as duplicative of the trebling sanction under the CCPA. In doing so, the court of appeals relied upon our decision in Lexton-Ancira Real Estate Fund, 1972 v. Heller, 826 P.2d 819, 823 (Colo. 1992), holding that a plaintiff is not entitled to double recovery for punitive damages under a common law claim and treble damages under the CCPA. Because in Heller we did not address the issue of standing under the CCPA, that case is relevant here only with regard to its holding pertaining to the impropriety of awarding duplicative damages.“Consumer” is not defined in the CCPA. In my view, the term includes actual or potential consumers who have been exposed to the violative conduct and who detrimentally relied on that conduct in some way. See May Dep‘t Stores Co. v. State ex rel. Woodard, 863 P.2d 967, 973-74 (Colo. 1993).The court has determined as a matter of law that the road across Plaintiffs[‘] property is not a public roadway whose use can be expanded for any other ranching purposes and that Defendants have no ownership interest in this road.
See Wimberly v. Ettenberg, 194 Colo. 163, 168, 570 P.2d 535, 539 (1977) (holding that standing requires: (1) that plaintiff was injured in fact; and (2) that the injury was to a legally protected right). The Majority concedes that we cannot interpret the statute literally, and includes the Wimberly standing requirements as elements of its standing test. See maj. op. at 235.The Court has also determined as a matter of law that the Defendants have committed a trespass upon the Plaintiffs’ property through the admitted breaking of the lock upon the gate of Plaintiffs’ property.
The civil penalties provision is found inYou are instructed to answer the following questions. You must all agree on your answers to each question for which an answer is required:
We, the jury, present our Answers to Questions submitted by the Court, to which have unanimously agreed:
1. Did the Plaintiff[]s incur actual damages or losses caused by the actions of any Defendant as a result of the Trespass? (Answer Yes or No)
ANSWER: Yes
2. If the answer to question Number 1 is yes, what is the total amount of actual damage or loss incurred by the Plaintiffs and caused by the defendant(s). (Enter amount or “none“)
ANSWER: $72,000
3. Did the defendants or any one of them engage in a deceptive trade practice? (Answer Yes or No)
ANSWER: Yes
4. Were any of the defendants[‘] actions attended by circumstances of wanton and willful disregard for the rights and feelings of the Plaintiffs? (Answer Yes or No)
ANSWER: Yes
5. If the answer to question number 4 is yes, what amount of exemplary damages, if any, do you award to the Plaintiffs? (Enter amount awarded, if any, not to exceed the amount of any actual damages awarded, or “none“)
ANSWER: $28,000
(1) Any person who violates or causes another to violate any provision of this article shall forfeit and pay to the general fund of this state a civil penalty of not more than two thousand dollars for each such violation. For purposes of this subsection (1), a violation of any provision shall constitute a separate violation with respect to each consumer or transaction involved ....
All actions brought under this article must be commenced within three years after the date on which the false, misleading, or deceptive act or practice occurred or the date on which the last in a series of such acts or practices occurred or within three years after the consumer discovered or in the exercise of reasonable diligence should have discovered the occurrence of the false, misleading, or deceptive act or practice.