Anson v. Trujillo, No. 01CA0846.

• Docket Nº: No. 01CA0846.
• Citation: 56 P.3d 114
• Case Date: August 15, 2002
• Court: Court of Appeals of Colorado

56 P.3d 114

John ANSON, Plaintiff-Appellee and Cross-Appellant,
v.
Jerry E. TRUJILLO and Peggy L. Trujillo, Defendants-Appellants and Cross-Appellees

No. 01CA0846.

Colorado Court of Appeals, Div. V.

August 15, 2002.

56 P.3d 117

Fisher, Sweetbaum & Levin, P.C., Scott L. Levin, E. James Wilder, Denver, Colorado, for Plaintiff-Appellee and Cross-Appellant

Kenneth L. Keene, Jr., Denver, Colorado, for Defendants-Appellants and Cross-Appellees.

Opinion by Judge NIETO.

Defendant Jerry E. Trujillo appeals the judgment entered in favor of plaintiff, John Anson. Plaintiff cross-appeals the directed verdict entered in favor of defendant Peggy Trujillo and the denial of his claim for noneconomic damages. We affirm in part, reverse in part, and remand with directions.

Defendants purchased eight adjoining vacant lots in 1995 and built houses on five of those lots. After seeing a sign that the remaining lots were for sale, plaintiff, who operated his own construction business, inquired about purchasing two lots in order to build houses there. Plaintiff and his wife met with Mr. Trujillo to discuss the property, and Mr. Trujillo stated that a swimming club had existed on the property but that the swimming pool was not located on the lots that plaintiff was considering purchasing. However, Mr. Trujillo was aware that the remains of a swimming pool were buried on these lots, but did not so advise plaintiff.

The parties entered into a contract for the purchase of two adjoining lots in March 1997, and plaintiff began to construct a house on one lot in 1999. When an excavation company began digging the hole for the foundation, it discovered concrete from the buried swimming pool. As a result, additional excavation was required before the planned house could be built.

Plaintiff filed a complaint against defendants alleging claims for fraud, negligent misrepresentation, and violation of the Colorado Consumer Protection Act (CCPA), § 6-1-101, et seq., C.R.S.2001. A jury trial was held, and at the conclusion of plaintiff's case, defendants moved for a directed verdict. The trial court granted the motion with respect to Ms. Trujillo and denied it with respect to Mr. Trujillo. The jury found in favor of plaintiff on all claims and awarded him actual and exemplary damages. The trial court vacated the award of exemplary damages and awarded plaintiff treble damages pursuant to § 6-1-113(2)(a)(III), C.R.S. 2001. Plaintiff also moved for an award of attorney fees and costs under § 6-1-113(2)(b), C.R.S.2001, and the trial court granted the motion. This appeal and cross-appeal followed.

I.

Mr. Trujillo contends that the trial court did not have jurisdiction to award damages under the CCPA because plaintiff lacked standing to bring a claim under that Act. We agree.

A.

Generally, a court considering standing must determine whether the plaintiff suffered injury in fact to a legally protected interest as contemplated by statutory or constitutional provisions. If a plaintiff suffered no injury in fact, or suffered injury in fact, but not from the violation of a legal right, the claim should be dismissed for lack of standing. Wimberly v. Ettenberg, 194 Colo. 163, 570 P.2d 535 (1977). A question of standing to bring a statutory claim is essentially an inquiry into whether the subject statute can properly be understood as granting a right to judicial relief to persons in the plaintiff's position. Pomerantz v. Microsoft Corp., 50 P.3d 929 (Colo.App.2002).

Standing is a jurisdictional issue that can be raised at any time, including as an issue raised for the first time on appeal. Peters v. Smuggler-Durant Mining Corp., 910 P.2d 34 (Colo.App.1995), aff'd, 930 P.2d 575 (Colo.1997); Bennett v. Board of Trustees, 782 P.2d 1214 (Colo.App.1989).

To establish a private cause of action pursuant to the CCPA, a plaintiff must establish

56 P.3d 118

(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.

Hall v. Walter, 969 P.2d 224, 235 (Colo.1998). The first three elements of this analysis determine whether the defendant's actions fall under the purview of the CCPA. Martinez v. Lewis, 969 P.2d 213 (Colo.1998).

B.

Mr. Trujillo contends that plaintiff cannot meet the third element, namely that Mr. Trujillo's conduct significantly impacted the public, and therefore, plaintiff did not have standing to bring his claim under the CCPA. Thus, Mr. Trujillo argues, the trial court lacked jurisdiction to award damages, costs, and fees pursuant to the CCPA. We agree.

In assessing the public impact of an allegedly deceptive trade practice, three considerations are particularly relevant: "the number of consumers directly affected by the challenged practice, the relative sophistication and bargaining power of the consumers affected by the challenged practice, and evidence that the challenged practice previously has impacted other consumers or has significant potential to do so in the future." Martinez v. Lewis, supra, 969 P.2d at 222.

Here, with respect to the first consideration, plaintiff is the only person impacted by Mr. Trujillo's conduct. The transaction in question involved only one parcel of land and the parties to this action. These circumstances suggest "a purely private wrong," which generally does not indicate that a defendant's conduct significantly impacted the public as actual or potential consumers. See Martinez v. Lewis, supra, 969 P.2d at 222.

Second, plaintiff is in the construction business, as was Mr. Trujillo. Also, plaintiff was not without other means of obtaining information about the nature and history of the property. As such, he was not the typical consumer that the CCPA seeks to protect. See Martinez v. Lewis, supra (CCPA protects consumers who are in a relatively weak bargaining position, particularly where consumers are dependent...