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Martinez v. Lewis11/29/1996
. App. 1982). Its broad legislative purpose is to provide prompt, economical, and readily available remedies against consumer fraud. Western Food Plan, Inc. v. District Court, supra.
In discussing what constitutes a violation of the statute sufficient to warrant a civil penalty, the supreme court in May Department Stores Co. v. State ex rel. Woodard, supra, 863 P.2d at 980, stated that the Act was enacted to "protect the public" and to abate evils which are deemed to arise from the pursuit of business. See People ex rel. Moore v. Burgess T.V. Service, 36 Colo. App. 19, 534 P.2d 361 (1975)(the deceptive trade practices which are the subject matter of the Act injuriously affect both honest business persons and consumers).
Actions brought under § 6-1-113(1) of the Act have essentially been based on claims of false representations made to the plaintiff or the public. See Nienke v. Naiman Group, Ltd., 857 P.2d 446 (Colo. App. 1992)(misrepresentation regarding loan to plaintiff); Robinson v. Lynmar Racquet Club, Inc., 851 P.2d 274 (Colo. App. 1993)(claim under § 6-1-113(1) by a customer to whom certain representations were made by health club); Classic Auto Sales, Inc. v. Schocket, 832 P.2d 233 (Colo. 1992)(the torts at issue required as essential elements the misrepresentation of a material fact); Heller v. Lexton-Ancira Real Estate Fund, Ltd., 809 P.2d 1016 (Colo. App. 1990), rev'd on other grounds, 826 P.2d 819 (Colo. 1992) (action for unfair competition or fraud was recognized under the provisions of § 6-1-113(1) where the plaintiff company was directly victimized by the defendant, as the defendant, among other things, "passed off" to show exhibitors its gift and jewelry show as that of the plaintiff); Dodds v. Frontier Chevrolet Sales & Service, Inc., 676 P.2d 1237 (Colo. App. 1983)(action for fraud and deceit by purchaser).
More recently, a division of this court has ruled that a landowner had an actionable claim under § 6-1-113(1) when defendant misrepresented to prospective buyers of land that they had legal access over the landowner's property. Walter v. Hall, ___ P.2d ___ (Colo. App. No. 95CA0509, September 26, 1996). Noting that § 6-1-113(1) states that the provisions of the Act "shall be available to any person," the court in Walter concludes that "any person may bring an action" under the Act. Although Walter concludes that to have standing a plaintiff must satisfy the requirements of Wimberly v. Ettenberg, 194 Colo. 163, 570 P.2d 535 (1977), the broad language of Walter noted above suggests that the provisions of the Act are available to "any person" almost without limitation. However, we are not persuaded that the Act is applicable here.
Here, plaintiff does not assert that Lewis made misrepresentations to her or that she relied on his misrepresentations. Nor is there evidence that any misrepresentation was made to the public. Rather, Lewis' conduct occurred in the context of the contract between Lewis and State Farm. See United States Welding, Inc. v. Burroughs Corp., 615 F. Supp. 554 (D.C. Colo. 1985) (plaintiff in a lease arrangement not entitled to relief under the Act in action to redress a purely private wrong).
Accordingly, we conclude that, under the circumstances here, plaintiff is not within the group of persons the statute was intended to protect. See Leake v. Caine, 720 P.2d 152 (Co
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