In 2005, One Creative Place (“Creative”) lost a bidding war with Jet Center Partners (“Jet Center”) for the exclusive rights to provide maintenance service and fuel sales at the Montrose Regional Airport. One Creative Place, LLC v. Jet Center Partners, LLC, (Colo. App. No. 10CA1887, May 26, 2011). Despite losing the bid, Creative continued to provide maintenance services and fuel vehicles on a property adjacent to the airport. Jet Center eventually brought suit against Creative for, among other claims, violation of the Colorado Consumer Protection Act (“CCPA”). In order to prove a CCPA claim, a plaintiff must prove five elements: 1) the defendant engaged in an unfair or deceptive trade practice; 2) the deceptive trade practice occurred in the course of the defendant’s business; 3) the deceptive trade practice significantly impacted the public as actual or potential customers of the defendant’s business; 4) the plaintiff suffered an injury to a legally protected interest; and, 5) the deceptive trade practice caused the plaintiff’s injury. Id. at 1; Rhino Linings USA, Inc. v. Rocky Mountain Rhino Lining, Inc. 62 P.3d 142, 146-47 (Colo. 2003).
As a matter of first impression in Colorado, the Court was asked to decide whether the third factor, public impact, was a question of law or fact. In order to make its decision, the Court discussed Colorado case law interpreting the CCPA (mainly Judge Connelly’s special concurring opinion in Colorado Coffee Bean), the State of Washington’s interpretation of a similar statute, and the Colorado Supreme Court Committee on Civil Jury Instructions, which recognized that this question may be submitted to a jury. See One Creative Place at 4-5; See also Colorado Coffee Bean, LLC v. Peaberry Coffee, Inc., ___P.3d___, (Colo. App. No. 09CA0130, Feb. 18, 2010).
The Court also recited the three factors enumerated in Martinez v. Lewis to determine whether a deceptive trade practice significantly impacts the public:
Some of the considerations relevant to whether a challenged practice significantly impacts the public as consumers are 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.
One Creative Place at 7, quoting Martinez v. Lewis, 969 P.2d 213, 222 (Colo. 1998).
The Court held that the three Martinez factors are not exhaustive, and even if a plaintiff’s evidence of public impact is extremely lacking, the question of public impact should only be determined as a matter of law when facts are undisputed.
In resolving this particular case, the Court of Appeals reviewed the trial court’s determination that no public impact existed as one of fact. The Court did not find a breach of the clear error standard and the trial court’s ruling against Jet Center’s CCPA claim was not disturbed.
For additional information regarding Colorado construction litigation, please contact David M. McLain at (303) 987-9813 or by e-mail at mclain@hhmrlaw.com.
