specially concurring.
I concur fully in the result and in almost all the reasoning of the comprehensive majority opinion. My only disagreement involves the Colorado Consumer Protection Act (CCPA) claim.
I would hold simply that the trial court did not clearly err in finding as a matter of fact that plaintiffs had not proven the public impact required under the CCPA. In my view, plaintiffs' proof fully sufficed as a matter of law to get this case to a trier of fact. But the proof of public impact was not so incontrovertible as to preclude a finding against plaintiffs. Accordingly, while I cannot agree that plaintiffs' proof was legally insufficient, neither would I overturn the trial court's rejection of that proof as a matter of fact.
The court found against plaintiffs after hearing their entire case; its CRCP. 41(b)(1) dismissal order made clear it was acting as "trier of fact." The court articulated the correct legal standards and the relevant factors governing the public impact element. The only dispute is whether it erred in finding that plaintiffs "failed to meet their burden of proof" on that element. Absent clear error, we must accept the trial court's factual findings. C.R.C.P. 52; Matoush v. Lovingood, 177 P.3d 1262, 1269 (Colo.2008).
There apparently are "no Colorado cases determining when the question of 'significant public impact is a question of law for the judge or when it is a question of fact for the jury." CJI-Civ. 4th 29:4 n. 1 (2009). But no one disputes that CCPA damages claims are generally jury-triable or that public impact is one CCPA element. A jury or trial court should have the case-specific responsibility of deciding whether a significant public impact has been established under the particular facts. Even assuming that finding ultimately determines the viability of a CCPA action, the clear error standard applies to many such ultimate determinations. See, e.g., Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985).
In arguing for de novo appellate review, plaintiffs rely on a prior division's statement that "public impact was not proven as a matter of law," Coors v. Security Life of Denver Ins. Co., 91. P.3d 393, 399 (Colo.App.2003), aff'd in part and rev'd in part on other grounds, 112 P.3d 59 (Colo.2005). But that statement simply meant that a directed verdict should have been granted because no reasonable trier of fact could have found the element established on those particular facts. See generally In re Rosen, 198 P.3d 116, 119 (Colo.2008) (discussing directed verdict standard).
I recognize that even where an issue is one of fact, de novo appellate review may be *33appropriate where "the controlling facts are undisputed." Hicks v. Londre, 125 P.3d 452, 455 (Colo.2005). It is on this basis that the majority in this case exercises de novo review.
I cannot agree, however, that the facts are undisputed here. Several factors bear on whether public impact has been proven, including "the number of consumers directly affected by the challenged practice"; "the relative sophistication and bargaining power of thfose] consumers"; and the extent to which the challenged practice "has previously impacted other consumers or has the significant potential to do so in the future." Rhino Linings USA, Inc. v. Rocky Mountain Rhino Lining, Inc., 62 P.3d 142, 149 (Colo.2003).
Plaintiffs adduced evidence that, if credited, showed that the challenged practices involved more than a purely private wrong. The evidence tending to show an actually or potentially significant public impact included public advertising, use of a misleading Denver magazine article, the relative lack of sophistication of at least some of the targeted franchisees, and the fact that at least 500 persons (of whom 68 received further information) responded to defendants' solicitations.
Plaintiffs' proof was much stronger than that described in prior appellate opinions holding public impact unproven as a matter of law. In Rhino Linings, there were only "[tJhree affected dealers out of approximately 550 worldwide." 62 P.3d at 150. In Coors v. Security Life, similar letters were sent to only some "200 out of 20,000 policyholders," and "there was no more evidence before the trial court regarding the other policyholders." 91 P.3d at 399. And in Curragh Queensland Mining, Ltd. v. Dresser Industries, Inc., "only a very few [mining companies] could muster the financial resources necessary to purchase a $38 million" piece of equipment that defendant offered to sell. 55 P.3d 235, 241 (Colo.App.2002).
At the same time, there were facts cutting against a finding of significant public impact. The trial court relied on, and the majority opinion recounts, those facts.
I therefore cannot find that plaintiffs established significant public impact as a matter of law. Because I view public impact as a question of fact, and because I cannot say the trial court clearly erred in ruling against plaintiffs as a matter of fact, I concur in the judgment affirming the trial court's rejection of the CCPA claim.
APPENDIX OF DISCLAIMERS
(Submitted as Appendix B to Plaintiffs' Opening Brief)
I. Disclaimers Addressing Future Performance
CLOSING ACKNOWLEDGMENT
Disclaimer 1
1. I have not received any information, either verbal or written, regarding the sales, revenues, earnings, income or profits of PEABERRY COFFEE franchised stores ("Stores") from any officer, employee, agent or area sales representative of PCFI, except as set forth in Item 19 of PCFTI's Offering Circular.
Disclaimer 2
2. I have not received any assurances, promises or predictions of how well my PEA-BERRY COFFEE Store will perform financially from any officer, employee, agent or area sales representative of PCFI, except as set forth in Item 19 of PCFT's Offering Circular.
FRANCHISE AGREEMENT
Disclaimer 3
24.18 Acknowledgement
(B) NO ASSURANCE OR WARRANTY, EXPRESS OR IMPLIED, HAS BEEN GIVEN AS TO THE POTENTIAL SUCCESS OF SUCH BUSINESS VENTURE OR THE EARNINGS LIKELY TO BE ACHIEVED ....
UNIFORM FRANCHISE OFFERING CIRCULAR
Disclaimer 4
ITEM 19
*34EARNINGS CLAIMS
Attached, as Exhibit J is our Statement of Earnings. Except as presented in Exhibit J we do not furnish or authorize our salespersons to furnish any oral or written information concerning the actual or potential sales, costs, income or profits of a PEABERRY COFFEE Store. Actual results may vary from unit to unit, and we cannot estimate the results of any particular franchise. We have specifically instructed sales personnel, agents, employees and officers that they are not permitted to make claims or statements as to earnings, sales or profits or prospects or chances of success other than as presented in Exhibit J, nor are they authorized to represent or estimate dollar figures as to any particular PEABERRY COFFEE Store. You should not rely on unauthorized representations as to earnings, sales, profits or prospects or chanees of success.
Disclaimer 5
CAUTION: THE FOLLOWING DATA SHOULD NOT BE CONSIDERED AS THE ACTUAL OR POTENTIAL INCOME OR RESULTS OF OPERATIONS OF ANY PARTICULAR FRANCHISE. WE DO NOT REPRESENT THAT YOU CAN EXPECT TO ATTAIN THESE GROSS SALES LEVELS. A FRANCHISEE'S FINANCIAL RESULTS ARE LIKELY TO DIFFER FROM THE FIGURES PRESENTED.
Disclaimer 6
EXCEPT FOR THE INFORMATION IN THIS ITEM, NO REPRESENTATIONS OR STATEMENTS OF ACTUAL, AVERAGE, PROJECTED, FORECASTED OR POTENTIAL SALES, COSTS, INCOME OR PROFITS ARE MADE TO FRANCHISEES BY US. WE DO NOT FURNISH OR MAKE, OR AUTHORIZE OUR SALES PERSONNEL TO FURNISH OR MAKE, ANY ORAL OR WRITTEN INFORMATION CONCERNING THE ACTUAL, AVERAGE, PROJECTED, FORECASTED OR POTENTIAL SALES, COSTS, INCOME OR PROFITS OF A FRANCHISE
OR PROSPECTS OF CHANCES OF SUCCESS THAT ANY FRANCHISEE CAN EXPECT OR THAT PRESENT OR PAST FRANCHISEES HAVE HAD, OTHER THAN AS SET FORTH IN THIS ITEM. WE DISCLAIM AND WILL NOT BE BOUND BY ANY UNAUTHORIZED REPRESENTATIONS.
II. Disclaimers Addressing Business Risk
CLOSING ACKNOWLEDGMENT
Disclaimer 7
3. I have made my own independent determination that I have adequate working capital to develop, open and operate my Store.
Disclaimer 8
8. I acknowledge that the success of my PEABERRY COFFEE Store depends in large part upon my ability as an independent business person and my active participation in the day-to-day operation of the Store.
FRANCHISE AGREEMENT
Disclaimer 9
24.18 Acknowledgement
(A) THE SUCCESS OF THE BUSINESS VENTURE CONTEMPLATED HEREIN INVOLVES SUBSTANTIAL RISKS AND DEPENDS UPON THE FRANCHISEE'S ABILITY AS AN INDEPENDENT BUSINESS PERSON AND ITS ACTIVE PARTICIPATION IN THE DAILY AFFAIRS OF THE BUSINESS, AND
III Broad General Disclaimers
CLOSING ACKNOWLEDGMENT
Disclaimer 10
5. I am not relying on any promises of PCFI which are not contained in the PCFI franchise agreement.
FRANCHISE AGREEMENT
Disclaimer 11
24.2 Entire Agreement.
*35This Agreement, including all exhibits and addenda, contains the entire agreement between the parties and supersedes any and all prior agreements concerning the subject matter hereof. The Franchisee agrees and understands that the Franchisor shall not be liable or obligated for any oral representations or commitments made prior to the execution hereof or for claims of negligent or fraudulent misrepresentation and that no modifications of this Agreement shall be effective except those in writing and signed by both parties. The Franchisor does not authorize and will not be bound by any representation of any nature other than those expressed in this Agreement. The Franchisee further acknowledges and agrees that no representations have been made to it by the Franchisor regarding projected sales volumes, market potential, revenues, profits of the Franchisees PEABERRY COFFEE Store, or operational assistance other than as stated in this Agreement or in any disclosure document provided by the Franchisor or its representatives.
Disclaimer 12
24.13 Acknowledgement.
(C) NO STATEMENT, REPRESENTATION OR OTHER ACT, EVENT OR COMMUNICATION, EXCEPT AS SET FORTH IN THIS DOCUMENT, AND IN ANY OFFERING CIRCULAR SUPPLIED TO THE FRANCHISEE IS BINDING ON THE FRANCHISOR IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT.