People ex rel. MacFarlane v. Alpert Corp., 81CA1309

• Citation: 660 P.2d 1295
• Case Date: October 28, 1982
• Court: Court of Appeals of Colorado

Page 1295

660 P.2d 1295 PEOPLE of the State of Colorado ex rel. J.D. MacFARLANE,
Attorney General of the State of Colorado,
Plaintiff-Appellant,
v.
The ALPERT CORPORATION, a Colorado corporation; Theodore
Alpert, Vice-President of the Alpert Corporation;
Leland Alpert, Vice-President of the
Alpert Corporation,
Defendants-Appellees. No. 81CA1309. Colorado Court of Appeals,
Div. III. Oct. 28, 1982.
Rehearing Denied Nov. 12, 1982.
Certiorari Denied March 21, 1983.

J.D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., James T. Reed, Asst. Atty. Gen., Denver, for plaintiff-appellant.

Isaacson, Rosenbaum, Spiegleman & Friedman, P.C., Sheldon E. Friedman,

Page 1296

Seymour Joseph, Denver, for defendants-appellees.

KIRSHBAUM, Judge.

The People appeal the trial court's order granting defendants' motion to dismiss. We reverse.

The record reveals the following facts. On August 18, 1980, plaintiff filed a complaint for injunctive and other appropriate relief under the Colorado Consumer Protection Act, § 6-1-101, et seq., C.R.S.1973. The complaint alleged that from 1977 to 1980 defendants, the Alpert Corporation and Theodore and Leland Alpert, had engaged in numerous deceptive trade practices. Plaintiff specifically alleged that defendants had violated § 6-1-105(1)(e), (g), (i), and (l ), C.R.S.1973.

Defendants moved to dismiss the complaint for failure to state a claim upon which relief could be granted. The trial court initially denied this motion "subject to the presentation of certain factual evidence."

However, after the submission of additional factual information by the parties, the trial court granted the motion on the ground that the Consumer Protection Act does not apply to real estate transactions. The trial court also concluded that Theodore and Leland Alpert could not be held individually liable for any acts of the corporation.

Plaintiff first contends that the trial court was mistaken in concluding that the Consumer Protection Act is inapplicable to any real estate transaction. We agree.

The Consumer Protection Act is based upon the Uniform Deceptive Trade Practices Act. See 7A U.L.A. 45 (1966). Colorado's Act differs, however, in important particulars from the prototype. Unlike the Uniform Act, the Consumer Protection Act contains express definitions of the terms "advertisement," "property," and "sale." Those definitions, contained in § 6-1-102, C.R.S.1973, and which apply to every provision of the Act "unless the context otherwise requires," provide as follows:

"(1) 'Advertisement' includes the attempt by publication, dissemination, solicitation, or circulation, visual, oral, or written, to induce directly or indirectly any person to enter into any obligation or to acquire any title or interest in any property.

....

"(8) 'Property' means any real or personal property, or both real and personal property, intangible property, or services.

....

"(10) 'Sale' means any sale, offer for sale, or attempt to sell any property for any consideration." (emphasis supplied)

Read together, these definitions indicate an intent by the General Assembly to extend the coverage of the Consumer Protection Act to transactions involving the advertisement or sale of real property.

Defendants assert that the trial court's conclusion is required by the appearance of the words...