# Hall v. Walter

> Supreme Court of Colorado · December 14, 1998 · 1998 Colo. J. C.A.R. 6087

URL: https://www.frixlaw.com/law-library/cases/9622355

## Case

- **Full name:** Larry L. HALL and Craig A. Hammond, Petitioners, v. Patricia L. WALTER and Reuben A. Walter, Respondents
- **Court:** Supreme Court of Colorado
- **Decided:** December 14, 1998
- **Citations:** 1998 Colo. J. C.A.R. 6087; 969 P.2d 224; 1998 Colo. LEXIS 837; 1998 WL 865834
- **Precedential status:** Published
- **Opinion:** Dissent by Kourlis
- **Judges:** Mullarkey, Scott, Kourlis
- **Cited by:** 139 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9622355

## How later opinions describe it (automated extraction)

- holding that the defendant's "deceptive [trade] practices implicated the public as consumers because the misrepresentations were directed to the market generally, taking the form of widespread advertisement and deception of actual and prospective purchasers"
- concluding that misrepresentations directed to the market generally, in the form or widespread advertisement and deception of actual and prospective purchasers, implicates the public as consumers and are subject to Colorado’s Consumer Protection Act
- holding that, when certain requirements are met, non-consumers have standing to maintain pri vaté cause of action under Colorado Consumer Protection Act
- holding that the declaration in Colorado Consumer Protection Act that the Act "shall be available to any person" does not permit a claim for relief when that person does not have standing

## Opinion text

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 *240 when they were not the target of the deceptive practice. The Majority’s decision today allows a plaintiff who suffers a trespass because of a defendant’s public misrepresentation regarding access to the plaintiffs property to recover three times the amount a plaintiff with the same injury would recover if the misrepresentation were private in nature. I view that result as a misapplication of the CCPA.
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, section 6-1-113(1) of the CCPA provides a private right of action “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.” See § 6-1-113(1), 2 C.R.S. (1998). The Walters claim that literally any person can bring suit under this section to redress a violation of the Act. The Majority rejects this broad interpretation, and holds that in order to have standing for a private right of action under the CCPA, a plaintiff must establish:
(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 plaintiffs 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 section 6-1-113 does not on its face require that a plaintiff prove injury in order to bring a claim alleging deceptive trade practices. See § 6-1-113, 2 C.R.S. (1998). As a result, if we were to interpret literally its language providing that “any person” can bring a private action, the statute would violate constitutional standing principles because a plaintiff could sue for damages without having suffered an injury. 3
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 *241 characterized the purpose of the CCPA as “provid[ing] prompt, economical, and readily available remedies against consumer fraud.” Western Food Plan, Inc. v. District Court, 198 Colo. 251, 256 , 598 P.2d 1038, 1041 (1979) (emphasis added); see also People ex rel. Dunbar v. Gym of America, Inc., 177 Colo. 97, 113 , 493 P.2d 660, 668 (1972) (concluding that the CCPA is a proper vehicle through which to exercise the state’s police power “to prevent the use of methods that have a tendency or capacity to attract customers through deceptive trade practices”). As a federal trial court noted, “[t]he Colorado courts ... have implied that it is consumers, rather than private businesses, who are the intended beneficiaries of the Act.” United States Welding, Inc. v. Burroughs, Corp., 615 F.Supp. 554, 555 (D.Colo.1985).
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 section 6-1-113, the Majority suggests that because the word “consumer” appears in other sections of the statute and does not appear in section 6-1-113, the General Assembly did not intend to limit private remedies to consumers. See maj. op. at 231-232. It is my view, however, that the intermittent use of the word “consumer” throughout the statute in fact supports the notion that all of the CCPA’s remedies are aimed at consumers. The fact that “consumer” does not appear in section 6-1-113 is not inconsistent with this notion.
For example, the word “consumer” appears in the civil penalties provision of the CCPA. 4 Section 6-1-112 “contemplates two different types of violations” for which a cause of action is available: “one in which a consumer is involved and one in which a transaction is involved.” May Dep’t Stores Co., 863 P.2d at 973. This section empowers the attorney general and district attorneys to enforce the CCPA, not only in circumstances involving actual injury to a specific consumer, but also in circumstances involving a transaction that does not cause injury to a consumer. See id. at 974. The distinction in language between “consumer” and “transaction” exists to empower enforcement of civil penalties even in the absence of a specific injury to an identifiable individual. It is a public enforcement remedy and does not necessarily intimate, as the Majority suggests, that section 6-1-113 must afford a private remedy to people other than consumers because its language refers to “any person” rather than “any consumer.”
Another indication that the Act is limited to consumers is in the text of section 6-1-115, which defines the statute of limitations for actions brought under the CCPA. 5 The language of that provision hinges the limitation of the action upon the date on which “the consumer” discovered the occurrence of the deceptive act.
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 *242 example, is a state where consumer protection jurisprudence has remained focused on the purpose of providing relief to the consumer despite statutory language that, read in isolation, might suggest standing is available for anyone wishing to sue.
Like the CCPA, the consumer protection act of Oregon is derived from the Uniform Deceptive Trade Practices Act (“UDT- PA”).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 Or.Rev.Stat. § 646.638 (1997). This “any person” language notwithstanding, the Oregon courts have said that the purpose of the provision is “to provide for ‘restitution,’ i.e., restitution for economic loss suffered by a consumer as the result of a deceptive trade practice.” Gross-Haentjens v. Leckenby, 38 Or.App. 313 , 589 P.2d 1209, 1210 (Or.Ct.App.1979) (emphasis added); see also Raudebaugh v. Action Pest Control, Inc., 59 Or. App. 166 , 650 P.2d 1006, 1009 (Or.Ct.App.1982) (stating that “[t]he general policy of the [Oregon Unlawful Trade Practices Act] is to discourage deceptive trade practices and to provide a viable remedy for consumers who are damaged by such conduct”) (emphasis added).
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 Minn.Stat. § 8.31(3a) (1997). The Minnesota Supreme Court has interpreted this language to mean not that literally any person can sue, but that “[t]he Minnesota Consumer Fraud Act ... applies to transactions involving all consumers.... ” Church of the Nativity of Our Lord v. Wat-Pro, Inc., 491 N.W.2d 1, 8 (Minn.1992). As Justice Simonett explained, the Minnesota Consumer Fraud Act “was meant to protect consumers being hoodwinked by sales promotion scams.” Id. at 10 (Simonett, J., concurring in part and dissenting in part). Justice Simonett further noted that:
Read literally, “any person” means just that. But read in context, having in mind the purpose of the statute, “any person” means any consumer....
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[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 hoe 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 *243 whether that person himself was a member of the public to whom the practice was directed.
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.
. 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).
. 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 civil penalties provision is found in section 6-1-112, which states in part:
(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 ....
§ 6-1-112, 2 C.R.S. (1998) (emphasis added).
. Section 6-1-115 provides:
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.
§6-1-115, 2 C.R.S. (1998).
. This is not to say that every state with such language has limited remedies to consumers. As *242 the Majority notes, courts in some states have construed "any person" broadly. See maj. op. at 233. Some courts clearly reject the notion that "any person” is limited to consumers. See, e.g., Vitolo v. Dow Corning Corp., 166 Misc.2d 717 , 634 N.Y.S.2d 362, 366 (N.Y.Sup.Ct.1995)(stating that "[t]he definition of 'person' is much broader than 'consumer' ”). Others interpret the language in a manner not inconsistent with the notion that consumer protection statutes are limited to providing remedies for consumers. See, e.g., Washington State Physicians Ins. Exch. & Ass’n v. Fisons Corp., 122 Wash.2d 299 , 858 P.2d 1054, 1060-61 (Wash.1993) (holding that a doctor whose reputation was injured had standing to bring a consumer protection claim against a drug company that failed to warn him about the dangers of a drug he prescribed, but noting that the unique relationship between a drug manufacturer, a prescribing physician, and a patient "result[ed] in the physician being comparable to the ordinary consumer in other settings”). Although these interpretations are relevant to analysis of the CCPA, I find the narrow construction adopted by courts in Oregon and Minnesota to be more persuasive.
. See maj. op. at 235. The other prongs of the test add nothing new to the standing analysis. Requirements one and two are explicitly required for recovery under the statute. See § 6-1-113, 2 C.R.S. (1998); § 6-1-105(1), 2 C.R.S. (1998). The fourth and fifth elements are constitutional requirements of standing as identified in Wimberly .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9622355. Public record. Not legal advice.