A dismissal under § 13-20-602 is not the same as a dismissal for failure to state a claim, because it rests on a separate, statutory ground. See Barton v. Law Offices of John W. McKendree, 126 P.3d 313, 314-15 (Colo.App. 2005). We review the district court's interpretation of the pertinent statute, § 13-20-602, de novo.
The Colorado Court of Appeals has held that "Section 13-20-602 sets forth a special statutory ground for dismissal, separate from that of C.R.C.P. 12(b)(5) ([dismissal for failure to state a claim])." Barton v. Law Offices of John W. McKendree, 126 P.3d 313, 314-15 (Colo. App. 2005). Thus, dismissal under the certificate statute does not constitute dismissal for failure to state a claim.
Nor does it apply if the court doesn't dismiss all the tort claims against a certain defendant or "if an action contains both tort and non-tort claims and the defendant obtains C.R.C.P 12(b) dismissal of only the tort claims." Dubray v. Intertribal Bison Coop. , 192 P.3d 604, 607 (Colo. App. 2008) ; see also Barton v. Law Offices of John W. McKendree , 126 P.3d 313, 314 (Colo. App. 2005) (no recovery where one of the tort claims was dismissed for failure to file a certificate of review); First Interstate Bank of Denver, N.A. v. Berenbaum , 872 P.2d 1297, 1302 (Colo. App. 1993) (no recovery where one of the tort claims was disposed of on summary judgment). In other words, for the statute to apply, the court must've dismissed the entire action pursuant to a Rule 12(b) motion, and that action must be a tort action.
The purpose of a C.R.C.P. 12(b)(5) motion to dismiss is to test the formal sufficiency of the plaintiff's complaint. Barton v. Law Offices of John W. McKendree, 126 P.3d 313, 314 (Colo.App. 2005). A court reviewing such a motion must "accept all matters of material fact in the complaint as true and view the allegations in the light, most favorable to the plaintiff."
Similarly, the statute does not authorize recovery if one of the plaintiff's tort claims is rejected for reasons other than dismissal under C.R.C.P. 12(b). See Barton v. Law Offices of John W. McKendree, 126 P.3d 318, 314 (Colo.App. 2005) (no recovery where one of the tort claims was dismissed for failure to file certificate of review); First Interstate Bank v. Berenbamn, 872 P.2d 1297, 1302 (Colo.App. 1993) (no recovery where one of the tort claims was disposed of on summary judgment). We conclude that a defendant may not recover attorney fees under § 13-17-201 when (1) the plaintiff's action includes both tort and nontort claims and (2) the defendant has obtained dismissal of the tort claims, but not of the nontort claims, under C.R.C.P. 12(b).