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kins Coie.
C. Bifurcation
[31] Plaintiffs next contend the trial court erred in bifurcating the trial of plaintiffs' claims against the Peaberry de-
fendants from those against Perkins Coie. We disagree.
Initially, plaintiffs have not explained how, exactly, they were prejudiced by this order. In the interest of resolving
the issue, we will assume without deciding that had all claims been tried together, plaintiffs may have benefitted
from Perkins Coie defending itself based on otherwise privileged communications with the Peaberry defendants.
[32][33] Under C.R.C.P. 42(b), bifurcation may be proper where separate trials will avoid substantial prejudice that
cannot be mitigated by other measures. Martin v. Minnard, 862 P.2d 1014, 1016 (Colo.App.1993). We shall not
disturb a trial court's decision to bifurcate a trial absent an abuse of discretion. Prudential Property & Casualty In-
surance Co. v. Dist. Court, 617 P.2d 556, 558 (Colo.1980).
The trial court's order is sufficiently detailed for us to uphold its decision under this standard:
In this case, prejudice lies with permitting Plaintiffs access to confidential materials used for the purpose of Per-
kins Coie's defense, while that same access would permit use of that material offensively by the Plaintiffs against
Perkins Coie's former client, the Peaberry Coffee Defendants. There is no procedural safeguard to prevent Plain-
tiffs' attorneys from accessing evidence that the Peaberry Defendants are entitled to withhold, necessary to the de-
fense of Perkins Coie and preventing the use of that information against the Peaberry Defendants. Therefore, sepa-
rate trials are appropriate.
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
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 stand-
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 sophistica-
tion and bargaining power of th[ose] 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
ants' 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 “[t]hree affected dealers out of approximately 550 worldwide.” 62
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
FRANCHISE AGREEMENT
the Franchisor shall not be liable or obligated for any oral representations or commitments made prior to the execu-
tion 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
24.13 Acknowledgement.
(C) NO STATEMENT, REPRESENTATION OR OTHER ACT, EVENT OR COMMUNICATION, EXCEPT AS
see CJI-Civ. 19:2 (“Nondisclosure or Concealment-Elements of Liability”), to the extent that concealment
suggests affirmative acts while nondisclosure connotes inaction despite a duty, we use “nondisclosure” be-
cause the trial court made no findings as to affirmative acts and plaintiffs do not identify any such acts.
FN3. The utility of and problems involved in trial courts' use of such drafts were addressed in Coors v. Se-
FN5. CJI-Civ. 19:1 covers “False Representation-Elements of Liability,” while 19:2 covers “Nondisclosure
or Concealment-Elements of Liability.” Plaintiffs argued both misrepresentation and concealment at trial.
These two claims have similar elements, including reliance. CJI-Civ. 19:1, 19:2; Nielson v. Scott, 53 P.3d
777, 780 (Colo.App.2002) (“Common to both fraudulent concealment and fraudulent misrepresentation is
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
addressed the specificity issue presented here:
Further, courts have limited the circumstances where integration clauses have the most potential for
harm. Where there is fraud in the inducement, courts are likely to void the contract, regardless of any in-
tegration clause or waiver. Finally, integration clauses or waivers are not likely to protect franchisors
mistaken assumption about the financial performance of PCI....”
FN8. These are identified as Disclaimers 10, 11, and 12 in the Appendix of Disclaimers.
FN9. Cases disclaiming reliance on prior oral representations cited by defendants and the trial court are in-
apposite. See, e.g., Abry Partners V, L.P. v. F & W Acquisition LLC, 891 A.2d 1032, 1058 (Del.Ch.2006)
false pretenses, constitutes fraud and, despite the so-called merger clause, [plaintiffs] are free to prove that
[they were] induced by false and fraudulent misrepresentations to ... execute [the Agreement].”) (internal
quotations omitted); Mankap Enterprises, Inc. v. Wells Fargo Alarm Services, 427 So.2d 332, 333-34
(Fla.Dist.Ct.App.1983) (“The law is settled that a party cannot contract against liability for his own fraud in
15444-45. Although the events at issue here preceded the 2007 amendments, we reference the disclosure
policy explained in the amended rule because the earlier versions are equally consistent with this policy.
See id. at 15444.
FN12. The FTC has since elevated this preemption language into the text of the amended rule. 16 C.F.R. §
frustrate the purposes of the Franchise Rule. .... Accordingly, the amended Franchise Rule would not af-
fect state laws providing greater consumer protection.
FN16. In Bloor v. Fritz, 143 Wash.App. 718, 180 P.3d 805, 816 (2008), “Miller [the agent] does not dis-
pute that he advertised the property for sale to the public by listing it in the multiple listing service directory
and placing a for sale sign on the property.” Similarly, Svendsen v. Stock, 143 Wash.2d 546, 23 P.3d 455,
458 (2001), involved a multiple listing. And Campbell v. Beak, 256 Ga.App. 493, 568 S.E.2d 801, 805
(1996).
FN19. In In re C-Span Entertainment, Inc., 162 S.W.3d 422, 428 (Tex.App.2005), the court rejected a law
firm's agency argument for invoking a jury waiver because, “rather than liability based upon agency princi-
ples-an agent acting on behalf of his principal based on authority to do so-the relevant liability here is that
Colo.App.,2010.
Colorado Coffee Bean, LLC v. Peaberry Coffee Inc.
--- P.3d ----, 2010 WL 547633 (Colo.App.)
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
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 stand-
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 sophistica-
tion and bargaining power of th[ose] 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
ants' 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 “[t]hree affected dealers out of approximately 550 worldwide.” 62
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
FRANCHISE AGREEMENT
the Franchisor shall not be liable or obligated for any oral representations or commitments made prior to the execu-
tion 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
24.13 Acknowledgement.
(C) NO STATEMENT, REPRESENTATION OR OTHER ACT, EVENT OR COMMUNICATION, EXCEPT AS
see CJI-Civ. 19:2 (“Nondisclosure or Concealment-Elements of Liability”), to the extent that concealment
suggests affirmative acts while nondisclosure connotes inaction despite a duty, we use “nondisclosure” be-
cause the trial court made no findings as to affirmative acts and plaintiffs do not identify any such acts.
FN3. The utility of and problems involved in trial courts' use of such drafts were addressed in Coors v. Se-
FN5. CJI-Civ. 19:1 covers “False Representation-Elements of Liability,” while 19:2 covers “Nondisclosure
or Concealment-Elements of Liability.” Plaintiffs argued both misrepresentation and concealment at trial.
These two claims have similar elements, including reliance. CJI-Civ. 19:1, 19:2; Nielson v. Scott, 53 P.3d
777, 780 (Colo.App.2002) (“Common to both fraudulent concealment and fraudulent misrepresentation is
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
addressed the specificity issue presented here:
Further, courts have limited the circumstances where integration clauses have the most potential for
harm. Where there is fraud in the inducement, courts are likely to void the contract, regardless of any in-
tegration clause or waiver. Finally, integration clauses or waivers are not likely to protect franchisors
mistaken assumption about the financial performance of PCI....”
FN8. These are identified as Disclaimers 10, 11, and 12 in the Appendix of Disclaimers.
FN9. Cases disclaiming reliance on prior oral representations cited by defendants and the trial court are in-
apposite. See, e.g., Abry Partners V, L.P. v. F & W Acquisition LLC, 891 A.2d 1032, 1058 (Del.Ch.2006)
false pretenses, constitutes fraud and, despite the so-called merger clause, [plaintiffs] are free to prove that
[they were] induced by false and fraudulent misrepresentations to ... execute [the Agreement].”) (internal
quotations omitted); Mankap Enterprises, Inc. v. Wells Fargo Alarm Services, 427 So.2d 332, 333-34
(Fla.Dist.Ct.App.1983) (“The law is settled that a party cannot contract against liability for his own fraud in
15444-45. Although the events at issue here preceded the 2007 amendments, we reference the disclosure
policy explained in the amended rule because the earlier versions are equally consistent with this policy.
See id. at 15444.
FN12. The FTC has since elevated this preemption language into the text of the amended rule. 16 C.F.R. §
frustrate the purposes of the Franchise Rule. .... Accordingly, the amended Franchise Rule would not af-
fect state laws providing greater consumer protection.
FN16. In Bloor v. Fritz, 143 Wash.App. 718, 180 P.3d 805, 816 (2008), “Miller [the agent] does not dis-
pute that he advertised the property for sale to the public by listing it in the multiple listing service directory
and placing a for sale sign on the property.” Similarly, Svendsen v. Stock, 143 Wash.2d 546, 23 P.3d 455,
458 (2001), involved a multiple listing. And Campbell v. Beak, 256 Ga.App. 493, 568 S.E.2d 801, 805
(1996).
FN19. In In re C-Span Entertainment, Inc., 162 S.W.3d 422, 428 (Tex.App.2005), the court rejected a law
firm's agency argument for invoking a jury waiver because, “rather than liability based upon agency princi-
ples-an agent acting on behalf of his principal based on authority to do so-the relevant liability here is that
Colo.App.,2010.
Colorado Coffee Bean, LLC v. Peaberry Coffee Inc.
--- P.3d ----, 2010 WL 547633 (Colo.App.)
