Robinson v. Lynmar Racquet Club, Inc.

• Decision Date: 11 March 1993
• Docket Number: No. 92CA0460,92CA0460
• Citation: 851 P.2d 274
• Parties: Eunice M. ROBINSON, Plaintiff-Appellant and Cross-Appellee, v. LYNMAR RACQUET CLUB, INC., a Colorado corporation, d/b/a Lynmar Racquet and Health Club and Lynmar Racquet and Health Club., Inc., Defendant-Appellee and Cross-Appellant. . I
• Court: Colorado Court of Appeals

Page 274

851 P.2d 274

Eunice M. ROBINSON, Plaintiff-Appellant and Cross-Appellee, v. LYNMAR RACQUET CLUB, INC., a Colorado corporation, d/b/a Lynmar Racquet and Health Club and Lynmar Racquet and Health Club., Inc. Defendant-Appellee and Cross-Appellant.

No. 92CA0460.

Colorado Court of Appeals Div. I.

March 11, 1993.

Frederick W. Newall, Colorado Springs, for plaintiff-appellant and cross-appellee.

Alpern, Johnson, Myers, Stuart & Finlayson, Jack J. Scheuerman, Colorado Springs, for defendant-appellee and cross-appellant.

Opinion by Judge DAVIDSON.

From a judgment entered after a bench trial awarding plaintiff, Eunice M. Robinson, $250 statutory damages, costs, and attorney fees against defendant, Lynmar Racquet Club, Inc., for its violation of the Colorado Consumer Protection Act, § 6-1-101, et. seq, C.R.S. (1992 Repl.Vol. 2) (CCPA), both Robinson and Lynmar appeal. We affirm.

Robinson signed a membership application to join Lynmar Racquet Club in September 1986. That application required payment of an initiation fee, which was paid as a gift to her by a family member, and monthly dues. Although the application provided that she could cancel her membership before the end of any month without further liability, it did not give notice of her right to rescind as required of such contracts by the CCPA.

In January 1989, Robinson terminated her membership. Because at the time she cancelled she was two months in arrears and refused to pay, Lynmar brought an action against her through a collection agency for the back payments.

Then, in September and October 1989, Robinson sent two written notices of rescission to Lynmar, at which point Lynmar stopped its collection efforts, but did not agree to rescission.

Thereafter, Robinson sued Lynmar in county court for rescission of the contract and, pursuant to the CCPA, for damages, costs, and fees for alleged deceptive trade practices. That action was premised on the health club's failure to provide notice of Robinson's right to rescind and its failure to agree to a rescission and a refund of Robinson's payments as set out in § 6-1-105(1)(t)(I), (II), and (IV), C.R.S. (1992 Repl.Vol. 2). That individual action was consolidated with a similar action Robinson had filed in district court seeking class action status.

Upon motion by Lynmar, the trial court dismissed the class action allegations. Then, after a trial to the court, it granted judgment in favor of Robinson, finding that Lynmar had committed a deceptive trade practice by failing to give notice of Robinson's right to rescind and awarded her $250 statutory damages plus $4246 in costs and attorney fees pursuant to § 6-1-113, C.R.S. (1992 Repl.Vol. 2). However, the court found that Robinson, having previously cancelled the contract, was not entitled to rescind and that, thus, Lynmar had not committed further deceptive trade practices by refusing to rescind the contract and to refund payments.

I.

Robinson first contends that the trial court erred by denying certification of the proposed class of similarly situated plaintiffs. Specifically, she argues that the trial court erroneously interpreted the damages provision of the CCPA to exclude members of a class from entitlement to certain statutory damages or, alternately, that, contrary to the trial court's conclusions, the requirements of class certification were met. We disagree.

C.R.C.P. 23 provides the procedural standards for filing and maintaining a class action. As is pertinent here, C.R.C.P. 23(a) permits a member of a class to sue as a representative party on behalf of all members only if: (1) The class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Mountain States Telephone & Telegraph Co. v. District Court, 778 P.2d 667 (Colo.1989).

The burden of demonstrating that a class should be certified rests upon the class action advocate. Villa Sierra Condominium Ass'n v. Field Corp., 787 P.2d 661 (Colo.App.1990). Whether to certify a class action is a matter within the discretion of the trial court, and its decision will not be disturbed unless it is clearly erroneous and an abuse of discretion. Friends of Chamber Music v. City & County of Denver, 696 P.2d 309 (Colo.1985).

The sole factual basis of the class action, as alleged in Robinson's complaint, was that, for the four-year period from December 1985 to the time of the action, she and "all others similarly situated" had signed contracts with Lynmar that contained no notice of their right to rescind, as required by the CCPA.

She alleged further, on her own behalf, that Lynmar had committed additional deceptive trade practices by refusing to rescind her contract and to give restitution of her total membership payments of $1,100.41. She did not allege that Lynmar had refused to rescind any contracts but her own. Importantly, she did not allege any actual damages to herself or to members of the class.

On both her behalf and that of the class, Robinson asserted two claims for relief against Lynmar for its commission of the deceptive trade practices: rescission of the contracts and restitution, and "actual damages or two hundred and fifty dollars ($250), whichever is greater under the CCPA."

In denying certification of the class, the court interpreted the damages provision of the CCPA, § 6-1-113, to require members of a class action bringing a claim under the CCPA to prove actual damages, while an individual plaintiff is entitled to $250 without such proof. Based, in part, on this dissimilarity, the trial court dismissed the class action allegations, concluding that Robinson's claims were not typical of the class and that she could not fairly and adequately represent the class.

Robinson contends that the trial court erroneously construed § 6-1-113. Specifically, she argues that members of a class are entitled to the $250 statutory damages set forth in § 6-1-113. We disagree.

Section 6-1-113, in relevant part, states:

(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 [any] deceptive trade practice listed in section 6-1-105 or 6-1-105.5.

(2) Except in a class action, any person who, in a private civil action, is found to have engaged in [any] deceptive trade practice [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. (emphasis added)

By its plain language, this statute establishes a defendant's liability in a private civil action for commission of deceptive trade practices and sets forth the damages available to an individual plaintiff. Contrary to Robinson's assertions, it expressly excludes members of a class from benefitting from damages provided in subparagraphs (2)(a) and (b). Thus, as is relevant here, although an individual plaintiff may be awarded $250 under the provision without proof of actual damages, class action members may not.

We observe that, although the statute does not preclude class members from bringing an action for actual damages, Robinson alleged no actual damages in her complaint and her arguments have focused on their entitlement, not to actual damages, but rather to the $250 provided by statute. Thus, we conclude that the trial court's analysis was correct. See Cribb v. United Health Clubs Inc., 336 Pa.Super. 479, 485 A.2d 1182 (1984) (in a class action it must appear that the relief is beneficial to all class members).

Robinson argues, nonetheless, that because of the common claim for relief for rescission and the common questions of law or fact regarding Lynmar's failure to give notice, the court erred in finding that Robinson's claim was not typical of the class. We disagree that there was error.

In her complaint, Robinson alleged that Lynmar committed deceptive trade practices against all of the plaintiffs by failing to provide notice of their right to rescind. However, Robinson's allegations that Lynmar committed additional deceptive trade practices by refusing to rescind her contract and refusing to restore her payments pursuant to § 6-1-105(1)(t)(I) and (IV) were made only on her own behalf. She did not allege that any members of the class except herself had requested or been denied rescission or restitution.

Moreover, if a would-be representative brings into the controversy considerations unique to that individual, which may be conclusive as well, such a plaintiff is not typical and cannot be certified as a class representative. Berco Resources, Inc. v. Louisiana Land & Exploration Co., 805 P.2d 1132 (Colo.App.1990).

Here, at the time the court denied certification, it considered other fundamental dissimilarities in the claims, including whether the action was barred by the applicable statute of limitations and whether, with respect to Robinson only, such bar was tolled by an alleged mental disability. It concluded that, under these circumstances, Robinson's claims were not typical.

On this basis, we cannot say that the trial court's denial of certification of the class was "clearly erroneous" or that it was an abuse of discretion. Friends of Chamber Music v. City & County of Denver, supra.

Insofar as Robinson argues that the trial court's failure to allow discovery regarding class certification resulted in Robinson's inability to substantiate her allegations that the class action was maintainable, we disagree.

Here, the trial court's conclusion was based on its determination that certain statutory damages were not available...