This appeal presents the question of whether the attorney general has standing under our consumer fraud legislation to bring an action for injunctive relief, civil penalties and restitution against a party engaging in conduct that is subject to control by an administrative body. It is our opinion that except where the legislature has by particularized and comprehensive legislation entrusted the protection of the consumer to a specific administrative agency, the attorney general may bring such action.
The appellee, Green Acres Trust, Inc., is a non-profit corporation that operates two mortuaries in Maricopa County and provides funeral services. Green Acres Memorial Gardens, Inc., is a corporation operated for profit that owns and operates a cemetery in connection with which it sells space and materials for the disposition of human remains. The appellee, Lisle Hawkins, is a shareholder and the president of both corporations.
For a number of years, the appellee corporations, through their own sales employees, marketed instruments styled "debentures" in denominations of $250.00. This was done without registration of either the debentures or the salesmen with the Arizona Corporation Commission as required by A.R.S. §§ 44-1841 and -1842. A "no-action" letter issued by the Securities Division of the Arizona Corporation Commission in 1961 stated, on the basis of information presented by Green Acres Trust's then counsel, that this corporation would be exempt from such registration requirements as an eleemosynary institution under the provisions of A.R.S. § 44-1843(6).
The debentures that were issued are somewhat standard-looking debt instruments, the obligor being Green Acres Trust. They were sold in conjunction with an offering and promotion of the goods and services of the two mortuaries operated by Green Acres Trust and the land and other materials sold by Green Acres Memorial Gardens. Generally, the debentures were to be redeemed to pay for the desired goods and services at the time of need. The record indicates that in some instances, at least, a solicitee would declare to the salesman the type of funeral services and other related materials he or she preferred. The salesman would place a monetary value on the materials and services, and the solicitee would purchase debentures in an amount equal or roughly equal to the amount in question and agree to make payments therefor. The debentures provided for redemption at the time of the solicitee's death, presumably for application of the proceeds to the cost of funeral and burial services and materials to be rendered for the deceased.
In 1975, Green Acres Trust and one of its debenture salesmen were made parties to proceedings before the Securities Division of the Arizona Corporation Commission. These proceedings culminated in an "Order To Cease And Desist", issued on November 14, 1975, that prohibited Green Acres Trust and its salesmen from selling Green Acres Trust debentures unless and until both they and any persons selling them or offering them for sale were registered pursuant to our Securities Act. This order was based on the conclusion that, notwithstanding the earlier "no-action" letter, sales of the unregistered debentures by unregistered representatives violated the state Securities Act.
Shortly after the cease and desist order was issued, the attorney general initiated the present litigation, based upon our Consumer Fraud Act, A.R.S. §§ 44-1521 to -1534.
ALLEGATIONS IN THE COMPLAINT
The attorney general's complaint, as amended and as further articulated in a more definite statement, alleged violations of A.R.S. § 44-1522 set forth in six separate counts: (1) that appellees orally represented to customers that the cost of a "pre-need funeral plan" was fixed when in fact it was to be determined at the time of death and further that appellees offered to sell pre-need funeral plans but in fact sold only Green Acres Trust debentures; (2) that the written memorials of agreement issued by the two corporate appellees were not agreements for pre-need funeral plans but were, instead, subscription agreements for debentures in the case of Green Acres Trust and purchase contracts for cemetery merchandise in the case of Green Acres Memorial Gardens; (3) that appellees "concealed, suppressed or omitted" to tell solicitees the material fact that Green Acres Trust had not registered the debentures as required by law; (4) this count is essentially
RULINGS BY THE TRIAL COURT
The attorney general eventually moved for summary judgment, principally upon the ground that the plans offered by appellees were generically "prearranged funeral plan agreements" within the purview of A.R.S. §§ 44-1721 to -1725 but did not comply with the requirements of that legislation. The appellees also moved for a partial summary judgment or, in the alternative, to file an assurance of discontinuance of an act or practice. See A.R.S. § 44-1530. After taking these matters under advisement, the trial court ruled by minute entry that sale by Green Acres Trust of its debentures in connection with the promotion of its funeral operations and Green Acres Memorial Gardens' cemetery business constituted the sale of a "prearranged funeral plan agreement" so that the failure to make the trust account deposits required by A.R.S. § 44-1722 violated the law and subjected appellees to the criminal sanctions of A.R.S. § 44-1725. The trial judge declined to rule on the basis of the briefs then before him whether this conduct also violated the Consumer Fraud Act so as to allow the attorney general access to the Act's enforcement provisions.
Following the initial summary judgment rulings, the attorney general made a second motion for summary judgment. This motion's major thrust was that appellees failed to disclose the fact that they were selling debentures that did not comply with the Securities Act and prearranged funeral plan agreements that did not comply with A.R.S. §§ 44-1721 to -1725. The motion was supported by a number of solicitees' affidavits, of which the following affidavit of Ralph E. Bernhardt is somewhat typical:
The appellees simultaneously moved for "complete summary judgment". They contended that the attorney general's requested injunctive relief was inappropriate because the Corporation Commission's cease and desist order was in effect and, more generally, that since there were other remedies available with respect to the alleged misconduct, relief under the Consumer Fraud Act was beyond the intent of the legislature in promulgating the Act.
The trial court, in a thorough memorandum disposing of the motions, agreed with appellees that relief under the Consumer Fraud Act was beyond the legislature's intent. The trial court noted the widespread entrustment of the regulation of various industries to various state boards and departments. The court observed that in light of such regulation, suits such as that brought against appellees presented the potential for multiple proceedings and perhaps inconsistent results and penalties. The trial court concluded that the attorney general could not maintain a consumer fraud action "where the basis of the action is a violation of some other act, the enforcement of which, on behalf of the public, has been entrusted to another agency." Although we agree with this conclusion to a point, there are certain limitations in its application.
The issues in this appeal concern the preclusive effect of the Securities Act and the prearranged funeral plans legislation upon the attorney general's ability to maintain an action under the Consumer Fraud Act. Thus, we make the following preliminary observations regarding the Consumer Fraud Act. The Act was passed in 1967. The model from which it was taken was patterned in large part after the Federal Trade Commission Act, 15 U.S.C. §§ 41 to 57, although the state legislation is in some critical respects much broader and more effective in its remedial provisions. See Lovett, State Deceptive Trade Practice Legislation, 46 Tul.L.Rev. 724, 730 (1972); Note, Consumer Protection by the State Attorneys General: A Time for Renewal, 49 Notre Dame Law. 410, 412-414 (1973). The Act is designed to root out and eliminate "unlawful practices" in merchant-consumer transactions. The core of the Act, section 44-1522(A), defines "unlawful practice" as follows:
The terms of this provision are obviously quite broad and are not subject to restrictive interpretation because the Act is generally to be considered remedial in nature. Sellinger v. Freeway Mobile Home Sales, Inc., 110 Ariz. 573, 521 P.2d 1119 (1974).
CONSUMER FRAUD ACTION BASED ON SECURITIES ACT VIOLATIONS
We shall first focus upon the trial court's ruling insofar as it relates to the
Chapter 12 of Title 44 of our Revised Statutes is known as the Securities Act. It is a comprehensive collection of statutes designed to foster the principle of full disclosure and thereby provide protection for securities purchasers. Registration of both issuers and salesmen is a key element in the regulatory scheme. See A.R.S. §§ 44-1841, -1842. To facilitate implementation of the Act's purpose and provisions, a Director of Securities is vested with rule-making and investigatory authority. See A.R.S. §§ 44-1821 to -1825. Article 13 of Chapter 12 specifically defines fraudulent practices in the purchase or sale of securities. A.R.S. §§ 44-1991 to -1995. Article 16 specifically relates to the methods for enforcing the Act's provisions. A.R.S. §§ 44-2031 to -2037. Thus, under A.R.S. § 44-2032, the Corporation Commission is empowered to order a violator to halt all illegal activities or seek the assistance of the courts or the attorney general in pursuit of this end.
Both the Securities Act and the Consumer Fraud Act protect consumers. But the Securities Act affords protection to a single type of consumer-the securities buyer. Through comprehensive and detailed legislation, our lawmakers established a method of regulating the sale of securities. Additionally, the Act sets up a complete and thorough statutory scheme for the administrative enforcement of its provisions. In essence, although not denominated as such, the Act is a self-contained consumer fraud act in the specialized field of securities. Since this legislation is so particularized and comprehensive, we cannot accept the proposition that our legislature, by enactment of the Consumer Fraud Act, intended to provide an additional avenue of relief in the situation where the charge is that one has failed to disclose that he is not in compliance with the requirements of the Securities Act.
CONSUMER FRAUD ACTION BASED ON VIOLATION OF PREARRANGED FUNERAL PLAN LEGISLATION
The appellant's consumer fraud contentions with respect to the alleged representations regarding appellees' prearranged funeral plan agreements stand on a completely different footing than those involving Securities Act violations. A prearranged funeral plan agreement is:
As with the Securities Act, an administrative agency is, to a limited extent, empowered to enforce the prearranged funeral plan legislation-the State Board of Funeral Directors and Embalmers. The Board certifies the qualifications of funeral directors and licenses funeral establishments such as those operated by Green Acres Trust. A.R.S. §§ 32-1321, -1381. A funeral establishment's license may be suspended or revoked for participation in an illegal scheme for the provision of funeral services or merchandise and for violating any law, rule or regulation pertaining to trust fund deposits required in connection with prearranged funeral plan agreements. A.R.S. § 32-1383(A)(4) and (7). In addition, the Board may, either through the attorney general or the local county attorney, seek injunctive relief whenever it appears that anyone "has engaged in, or is engaged in any act, practice or transaction" in violation of either the chapter that regulates funeral directors or the laws regarding prearranged funeral plan agreements. A.R.S. § 32-1369.
We are of the opinion that there is a critical difference regarding the scope of the Corporation Commission's activities, through its Securities Division, under the Securities Act and those of the Board of Funeral Directors and Embalmers in enforcing the prearranged funeral plan statutes. And, this distinction demonstrates a differing legislative intent regarding a consumer fraud action based on violations of the two enactments. The Securities Act has for its basic purpose the prevention of fraud upon the consumers of securities and is designed to be prophylactic where possible and remedial when necessary. Jackson v. Robertson, 90 Ariz. 405, 368 P.2d 645 (1962). The Corporation Commission, through its Securities Division, maintains a substantial and ongoing investigatory effort designed to protect the public from fraud and enforce the Act's provisions. On the other hand, while the Board of Funeral Directors and Embalmers may regulate the entire spectrum of its profession's activities, its regulation is not directed at those activities which would be apt to entail fraud upon the consuming public. While the Board is charged with the duty of enforcing the statutory standards set for the profession and alerting prosecuting authorities to prearranged funeral plan legislation violations, there is nothing in Chapter 12 of Title 32 that provides it the type of substantial investigative force accorded to the Securities Division of the Corporation Commission for the investigation of frauds or possible frauds on the consuming public. See A.R.S. §§ 44-1811 to -1815, 44-1822 to -1825.
We know of no authority for the proposition that simply because an activity is clearly unlawful because contrary to positive enactment, it cannot form the basis of a charge of deceptive and unlawful practice pursuant to a statute such as our Consumer Fraud Act. Section 44-1522(B) of the Act permits us to "use as a guide [for interpreting our own act] interpretations given by the federal trade commission and the federal courts" of the Federal Trade Commission Act. We find that no such proposition has been considered, let alone approved. The fact that our Consumer Fraud Act may, in some instances, be cumulative with respect to other penal and remedial provisions available to public prosecuting authorities does not make it inapplicable. Cf. State v. Ulmer, 21 Ariz.App. 378, 519 P.2d 867 (1974) (defendant could be prosecuted under either credit card fraud statute or forgery statute). Thus, we will not limit the attorney general, as appellees would have us do, to the remedies provided by the prearranged funeral plan agreement legislation. Accordingly, the attorney general has effectively alleged a consumer fraud action. Assuming
ALTERNATIVE CONTENTIONS TO SUSTAIN JUDGMENT
The appellees contend that judgment in their favor can be sustained on several other grounds not alluded to by the trial court in its decision. While we agree with appellees that a judgment, and even a summary judgment, will be sustained if it is correct even though rendered for the wrong reason, City of Tucson v. Morgan, 13 Ariz.App. 193, 475 P.2d 285 (1970), we find no basis for sustaining that part of the trial court's ruling as to which we have indicated reversal.
Appellees first argue in this connection that since Green Acres Trust is subject to the Corporation Commission's cease and desist order, no injunction is necessary or appropriate. We note, however, that A.R.S. § 44-1528(A) authorizes injunctive relief when a person "has engaged in" an unlawful practice. In State ex rel. Turner v. Limbrecht, 246 N.W.2d 330 (Iowa 1976), the court referred to the general rule that where a right for injunction arises from statute, in that case the Iowa Consumer Frauds Act, the usual grounds for injunctive relief need not be established, and it is sufficient to show the conditions specified in the statute. This is the case even though a past wrong forms the basis for the injunction and there is little indication that the wrong will be repeated. See id. The decision as to whether actually to issue an injunction remains one for determination by the trial court in view of those allegations which are effectively set forth and supported pursuant to the Consumer Fraud Act. See State v. Ralph Williams' North West Chrysler Plymouth, Inc., 82 Wn.2d 265, 510 P.2d 233 (1973). We do not find in the present record any circumstances which absolutely negate the application for injunctive relief.
Appellees next argue that the attorney general did not follow the investigative procedure set forth in A.R.S. § 44-1524 prior to filing a complaint in this case. Appellees have not cited to this court any authority to the effect that taking the investigatory steps referred to in section 1524 is a jurisdictional prerequisite to commencing a consumer fraud action. In any event, the record discloses an ample investigatory basis for the action. We find this argument to be without merit.
Appellees also contend that this litigation is inappropriate as a consumer fraud action brought by the attorney general because there are only a few persons, perhaps 14 in number, who have indicated a desire to obtain relief. This contention is also without merit. The basic purpose of the Consumer Fraud Act's enforcement provisions is protection of the public in general. That is a prospective consideration. We agree with the attorney general that the
We do note, however, appellees' statement that a class action on behalf of persons aggrieved has been commenced. Of course, the public interest is best served when parallel legal proceedings, such as the present case and a lengthy class action, can be litigated with as much complementary expediency as may be effectuated. Under such circumstances, it is for the attorney general, in the first instance, and ultimately the trial court, to assess the class action's impact in determining whether the independent enforcement proceedings, and the remedies sought therein, are necessary.
Appellees next argue that the consumers' detrimental reliance was neither alleged nor established. The short answer to this argument is that reliance or actual deception or damage is not a prerequisite to a consumer fraud action brought by the attorney general. A.R.S. § 44-1522(A). See Peery v. Hansen, 120 Ariz. 266, 585 P.2d 574 (App. 1978) (the right to rely is not a necessary element in a private action under the Consumer Fraud Act).
Appellees further contend that the necessary element of intent was neither alleged nor established. See A.R.S. § 44-1522. Intent is, of course, an issue of fact. Our review of the record at this stage of the proceedings indicates that the requisite intent has been effectively alleged and adequately shown by inference. Ordinarily, the question of intent is to be resolved by the trier of fact and not by summary judgment. See Poller v. Columbia Broadcasting System, 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962); Grain Dealers Mutual Insurance Co. v. James, 118 Ariz. 116, 575 P.2d 315 (1978). This question is to be resolved upon remand of this case.
Appellees lastly contend that the attorney general was not diligent in prosecuting the action and would not clarify the theory of his action. After reviewing the record, we find that the attorney general's theory was adequately articulated and presented. Additionally, we find no basis in the record for sustaining the judgment on a theory of laches or lack of diligence on the part of the attorney general.
Since this is a case of first impression in this jurisdiction, we deem it advisable to summarize our principal holding. We hold that pursuant to the broad terms of the Consumer Fraud Act, the attorney general has plenary power to enforce by injunctive and other specified remedies that enactment's provisions proscribing "unlawful practices" in the consumer field except where an exemption has been expressly articulated, see A.R.S. § 44-1523, and except where other particularized and comprehensive legislation pervades a specialized field of consumer protection.
In the instant case, we are of the opinion that the Consumer Fraud Act was not intended to be a substitute for or to supplement the comprehensive regulatory and enforcement provisions of the Securities Act. It is equally clear that the scope of the Consumer Fraud Act's operation is not limited by the existence of the Board of Funeral Directors and Embalmers, which has a broad range of duties but limited resources with which to provide comprehensive consumer protection.
For the foregoing reasons, the judgment of the superior court is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
JACOBSON and OGG, JJ., concur.