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:
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.