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People v. Wunder

Court of Appeals of Colorado, Seventh Division

March 24, 2016

The People of the State of Colorado, Plaintiff-Appellee,
v.
Stephen Wunder, Defendant-Appellant

          City and County of Denver District Court No. 13CV32572. Honorable Robert L. McGahey, Jr., Judge.

         Cynthia H. Coffman, Attorney General, Jay B. Simonson, First Assistant Attorney General, John Feeney-Coyle, Assistant Attorney General, Sarah Page Jackson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

         Stephen Wunder, Pro se.

          OPINION

         BERGER, JUDGE.

         [¶1] In this civil action under part 1 of the Colorado Consumer Protection Act (CCPA), sections 6-1-101 to -115, C.R.S. 2015, Colorado's Attorney General (AG) alleged that defendant, Stephen Wunder, engaged in multiple deceptive trade practices. The district court granted the AG's motion for summary judgment, concluding that Wunder violated the CCPA. Then, the AG filed an unverified motion for injunctive relief, civil penalties, and restitution. Based on the documents filed by the parties and without holding an evidentiary hearing, the trial court assessed statutory penalties of $515,000 and entered a money judgment against Wunder for restitution in excess of $6 million.

         [¶2] Wunder appeals and we affirm in part and reverse in part. We affirm the court's summary judgment determination that Wunder violated the CCPA. Because it is vague and overbroad, we reverse a portion of the permanent injunction and remand for reformulation. Because the court assessed civil penalties and restitution without holding an evidentiary hearing, we reverse those judgments and remand for further proceedings.

         I. Relevant Facts and Procedural History

         [¶3] Stephen Wunder operated a Colorado-based vacation and travel club known as Sea to Ski, LLC. Sea to Ski promised customers significant savings on travel through purportedly exclusive industry affiliations.

         [¶4] After receiving consumer complaints about Sea to Ski, the AG investigated Sea to Ski's business practices. The AG concluded that Sea to Ski's practices were misleading and sued Wunder and related parties under the CCPA.[1] The AG sought preliminary and permanent injunctions as well as civil penalties and restitution.

         [¶5] After an evidentiary hearing on the AG's motion for preliminary injunction, the court denied relief. The AG later moved for summary judgment on whether Wunder had violated the CCPA, and the trial court granted that motion.

         [¶6] The AG then moved for permanent injunctive relief, civil penalties, and restitution. Without holding a hearing on that motion, the court ordered most of the relief requested by the AG, including injunctive relief, civil penalties, and restitution in excess of $6 million.

         [¶7] Wunder moved to " vacate, stay, or clarify, modify, and amend the court's permanent injunction," arguing that (1) the court's order incorporated by reference material outside of the injunction itself, in violation of C.R.C.P. 65(d); and (2) the injunction was vague and overly broad, in violation of C.R.C.P. 65(d) and Wunder's Fourteenth Amendment rights of due process and equal protection. The district court agreed with Wunder's first contention and corrected that error. It denied Wunder's motion in all other respects.

         II. The District Court Had Subject Matter Jurisdiction to Adjudicate Whether Wunder Violated the CCPA

         [¶8] Wunder contends that the money judgments and injunction are void because the district court lacked subject matter jurisdiction over CCPA violations committed against those Sea to Ski members who were nonresidents of Colorado.[2] We reject this argument.

         [¶9] Whether a court has subject matter jurisdiction is a question of law we review de novo. Tulips Invs., LLC v. State ex rel. Suthers, 340 P.3d 1126, 2015 CO 1, ¶ 11.

         [¶10] Colorado district courts are vested with broad subject matter jurisdiction, determined solely by the state constitution and Colorado statutes. Colo. Const. art. VI, § 9; Tulips Invs., ¶ 20. The CCPA expressly authorizes the AG to bring actions " in the appropriate district court of this state." § 6-1-110(1), C.R.S. 2015.

         [¶11] Wunder cites no authority to support his argument that the district court lacked jurisdiction over CCPA violations committed against nonresidents. The CCPA itself does not limit the court's jurisdiction based on the residency of the victims of deceptive trade practices and, indeed, makes no distinction between consumers who reside within or outside of Colorado. Thus, the court had subject matter jurisdiction to adjudicate whether Wunder violated the CCPA, irrespective of whether consumers in other states were harmed by those violations.

         III. The Court Correctly Granted Summary Judgment

         [¶12] Wunder asserts that the district court erred when it granted summary judgment against him. We reject this argument because the AG and the district court fully complied with the procedures required by C.R.C.P. 56 and the AG proved that it was entitled to judgment as a matter of law.

         [¶13] We review summary judgments de novo. Brodeur v. Am. Home Assurance Co., 169 P.3d 139, 146 (Colo. 2007). Summary judgment is a drastic remedy appropriate only when the pleadings and supporting documents show that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Id. The moving party has the burden of establishing the lack of a triable factual issue, and all doubts as to the existence of such an issue must be resolved in favor of the nonmoving party. Churchey v. Adolph Coors Co., 759 P.2d 1336, 1340 (Colo. 1988). Once the moving party has met this burden, the burden shifts to the nonmoving party to establish that there is a triable issue of fact. Cont'l Air Lines, Inc. v. Keenan, 731 P.2d 708, 712-13 (Colo. 1987).

         [¶14] The CCPA forbids numerous deceptive trade practices, including: knowingly making a false representation as to the benefits of a service, making false or misleading statements concerning the price of services, making guarantees of goods or services without clearly and conspicuously disclosing the nature and extent of the guarantee and any limitations on the guarantee, and failing to disclose material information about the services in order to induce the customer to enter into a transaction. § 6-1-105(1)(e), (l), (r), (u), C.R.S. 2015.

         [¶15] In its summary judgment motion, the AG contended that Wunder misrepresented Sea to Ski's " exclusive" access to discounted vacation accommodations, misrepresented the price of those accommodations, guaranteed full refunds without disclosing the onerous conditions of the guarantees, and failed to disclose material information about supposedly free prize and bonus offers used to solicit customers. The AG supported its summary judgment motion with twenty-six exhibits, including:

o deposition testimony from Wunder and the other defendants;
o the preliminary injunction hearing transcript;
o the text of the " buyback guarantees" offered to members;
o affidavits of Sea to Ski members who claimed to have been ...

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