Opinion
23CA0374 23CA0883 05-23-2024
05-23-2024
Grant D. Orvis, Plaintiff-Appellant, v. Billy Seiber; Steve Silverman; MPG Consulting, LLC, a Colorado limited liability company; Adam Orens; and Salmeron Barnes, Defendants-Appellees.
Grant D. Orvis, Pro Se. Philip J. Weiser, Attorney General, Alison Faryl Kyles, Assistant Solicitor General, Dmitry B. Vilner, Assistant Attorney General, Denver, Colorado, for Defendants-Appellees Billy Seiber and Steve Silverman. Berg Hill Greenleaf Ruscitti, LLP, Patrick M. Haines, Geoffrey C. Klingsporn, Boulder, Colorado, for Defendants-Appellees MPG Consulting, LLC; Adam Orens; and Salmeron Barnes.
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
City and County of Denver District Court No. 22CV58 Honorable Shelley I. Gilman, Judge
Grant D. Orvis, Pro Se.
Philip J. Weiser, Attorney General, Alison Faryl Kyles, Assistant Solicitor General, Dmitry B. Vilner, Assistant Attorney General, Denver, Colorado, for Defendants-Appellees Billy Seiber and Steve Silverman.
Berg Hill Greenleaf Ruscitti, LLP, Patrick M. Haines, Geoffrey C. Klingsporn, Boulder, Colorado, for Defendants-Appellees MPG Consulting, LLC; Adam Orens; and Salmeron Barnes.
OPINION
GOMEZ JUDGE.
¶ 1 Grant D. Orvis appeals the trial court's judgment dismissing his claims against the defendants, Billy Seiber; Steve Silverman; MPG Consulting, LLC (MPG); Adam Orens; and Salmeron Barnes, under C.R.C.P. 12(b)(1) and (5). Orvis also appeals the trial court's orders awarding attorney fees to the defendants. We affirm the judgment and the orders awarding attorney fees, and we remand the case with directions.
I. Background
¶ 2 In this lawsuit, Orvis accuses public officials and private stakeholders of acting and conspiring to "defame and blacklist" him from the state's industrial hemp industry after he spoke out about alleged bid rigging and racketeering schemes. According to Orvis, the Colorado Department of Agriculture (CDA) awarded MPG a contract to establish a Hemp Center of Excellence as a result of "civil and criminal schemes in which public official defendants conspired with private citizen defendants to rig the bidding process as well as other racketeering schemes." Orvis, whose company had unsuccessfully bid for that same contract, says that when he voiced concerns about these issues, "certain public official defendants conspired with non-public official defendants to defame and blacklist [him] from participating in the Colorado hemp industry.''
"Industrial hemp 'is an agricultural commodity that belongs to the cannabis family,' but has only 'trace amounts' of the psychoactive component of marijuana '(delta-9 tetrahydrocannabinol or THC), typically around .03 percent,' which stands in stark contrast to most marijuana strains that are sold in Colorado and 'range between 8 and 30 percent THC.'" People v. Cox, 2018 CO 88, ¶ 1 n.2 (citation omitted); see also § 35-61-101(7), C.R.S. 2023 (defining industrial hemp).
Orvis's company filed an appeal in the Denver District Court of the CDA's decision to award the contract to MPG under section 24-109205, C.R.S. 2023. The court affirmed the CDA's decision.
¶ 3 Orvis's operative 103-page second amended complaint, which he filed pro se, originally listed as defendants ten state officials and government employees, including Governor Jared Polis and two members of his staff, six current and former CDA officials, and senior assistant attorney general Billy Seiber (collectively, the State Defendants); MPG and its owner and managing partner (collectively, the MPG Defendants); and the former chairperson of the CDA's Hemp Advisory Committee, Ed Lehrburger. It also originally asserted twenty claims for relief, including
• two defamation claims against former CDA Deputy Commissioner Steve Silverman, one of the State Defendants;
• fourteen defamation claims against the MPG Defendants and a constructive fraud claim against MPG; and
• a claim of civil conspiracy to defame Orvis and two claims of violations of the Colorado Organized Crime Act (COCCA) against all of the defendants.
¶ 4 As relevant here, the claims against the MPG Defendants stem from Orvis's unauthorized attempts to contact the individual MPG Defendants' former employers and references to inquire about MPG's qualifications for the Hemp Center of Excellence contract. In response to Orvis's actions, MPG's owner called and emailed some of the State Defendants to discuss the "individual" who is "basically posing as a CDA official in emails" and to ask "the CDA [to] interven[e]" and "ensur[e] there won't be further contact of our references."
¶ 5 Nonetheless, about half a year later, Orvis emailed a representative from MPG's owner's former employer, BBC Research, purporting to be "performing some due diligence on a procurement process that is being run by the State of Colorado." The BBC Research representative forwarded the email to MPG's owner, saying it seemed "potentially fishy" and wanting to check "if its [sic] legit or not." In response, MPG's owner again emailed some of the State Defendants, stating,
I am emailing all of you because I don't know what else to do. I have tried to convey the importance of acting when this happened over the summer.
It is happening again. My contacts are being harassed in the name of CDA "due diligence".
Please read the email . . . and tell me this individual has not crossed the line. Can't the state file charges? A restraining order? This is impersonation and is dangerous.
I am happy to elaborate further - we need to schedule a call to discuss an appropriate response to this because doing nothing is obviously not working.
¶ 6 About a week later, MPG's managing partner chimed in:
[W]e would like to understand what the CDA/State plans to do about getting certain folks to stop harassing our previous employers/contacts in the guise of doing diligence for the CDA? . . .
In addition to contact [sic] BBC Research, [Orvis] has contacted my previous employer and my Army Commander . . . stating that he
had [sic] was conducting diligence for the CDA [Hemp Center of Excellence] project.
We would very much like to hear the CDA's/state position on what the plan is to deter [Orvis] and his associates from further contact with our network in the CDA's name.
¶ 7 The claims against the State Defendants, as relevant to this appeal, pertain to a purported conversation between Silverman and Lehrburger. According to the complaint, Silverman may have said that Orvis was a "sore loser," "burned his bridges," "harassed individuals," "impersonated public officials," and was being "blacklisted" from the hemp industry. These alleged statements stem from the CDA's decision to award the Hemp Center of Excellence contract to MPG and Orvis's attempts to contact the individual MPG Defendants' references.
¶ 8 After Orvis filed the operative complaint, the State Defendants, the MPG Defendants, and Lehrburger moved to dismiss it. While those motions were pending, Orvis voluntarily dismissed the constructive fraud claim, the COCCA claims, and the other claims against all the State Defendants except Silverman and Seiber under C.R.C.P. 41(a)(1)(A). Orvis also requested and obtained dismissal of all the claims against Lehrburger under C.R.C.P. 41(a)(2).
¶ 9 In two separate orders, issued simultaneously, the trial court dismissed the remaining claims - the defamation and civil conspiracy claims against Silverman; the civil conspiracy claim against Seiber; and the defamation and civil conspiracy claims against the MPG Defendants. The court dismissed the claims against Silverman and Seiber under Rule 12(b)(1) on the basis that they were barred under the Colorado Government Immunity Act (CGIA). The court also dismissed the defamation claims against Silverman and the MPG Defendants under Rule 12(b)(5) because the challenged statements were substantially true, expressions of pure opinion, and/or rhetorical hyperbole. And because the defamation claims were subject to dismissal under Rule 12(b)(5), the court concluded that the ancillary civil conspiracy claims were likewise subject to dismissal.
¶ 10 Seiber, Silverman, and the MPG Defendants then moved for recovery of their attorney fees under section 13-17-201(1), C.R.S. 2023. On March 17, 2023, the court entered orders granting the moving defendants attorney fees and, at Orvis's request, ordering the parties to schedule a hearing on the reasonableness of the requested amounts. The court's orders directed the defendants' attorneys "to contact the [c]ourt's clerk, within 7 days . . . to schedule an in-person hearing" for "no later than 63 days from the date of th[e] [o]rder[s]" and to "clear[]" "[t]he date and time of that hearing . . . with [Orvis]."
¶ 11 A week later, on March 24, the defendants filed a joint notice regarding the scheduling of the hearing. The notice explained that the defendants' attorneys had attempted to confer with Orvis about his availability for a hearing on April 5 - the only date available to the court and all the defendants - but that he hadn't responded to them. That same day, the court responded by ordering Orvis to file "[a]ny objection, demonstrating good cause, to scheduling the attorney fees hearing at 8:30 a.m. on April 5, 2023, . . . no later than Tuesday, March 28." (Emphasis in original.)
¶ 12 In a late-filed objection, Orvis requested a delay of the hearing, arguing that his new job "makes it impossible for [him] to take a day off for the hearing on April 5" and that "[t]his very short time frame also makes it impossible for [him] to search for and find an expert witness to dispute the reasonableness of the fees."
¶ 13 The trial court entered an order overruling Orvis's objection. The court explained that, because "the hearing is being set at [Orvis]'s request," the court "cannot avoid the inconvenience that the hearing may cause to [him]." The court also found that Orvis's "request for additional time 'to search for and find an expert witness to dispute the reasonableness of the fees' is not good cause to delay the hearing." It noted that the attorney fee motions had been pending for several weeks and that Orvis had indicated in response to the motions that a hearing would allow him to present expert witness testimony about the reasonableness of fees, yet "it appears that he has not yet even begun his 'search'" for an expert witness.
¶ 14 In response, Orvis moved to disqualify the judge, accusing her of, among other things, engaging in ex parte communications regarding the hearing. The court denied the motion, explaining that only the court clerk had communicated with the defendants' attorneys, which was proper under C.R.C.P. 16(b)(2), and that the court had directed the defendants to obtain available dates for the hearing and clear those dates with Orvis.
¶ 15 The court held a hearing on the amount of fees on April 5. Orvis didn't appear. The court later issued written orders awarding the full amounts requested - $72,760 in fees to Silverman and Seiber and $52,069 in fees to the MPG Defendants. The court declined to decrease the award to Silverman and Seiber by deducting fees attributable to the other State Defendants who'd been dismissed from the case, based on its determination that the work performed for those defendants couldn't be "disentangled" from that for Silverman and Seiber and that counsel would've provided the same legal services with or without the claims against the dismissed State Defendants.
¶ 16 Orvis timely appealed both the judgment on the merits and the orders awarding attorney fees, and his appeals were consolidated. He raises several issues on appeal, but they essentially boil down to contentions that the trial court erred by (1) dismissing his remaining claims and (2) awarding attorney fees.
II. Dismissal of Orvis's Remaining Claims
¶ 17 Orvis first contends that the court erred by dismissing his remaining defamation and civil conspiracy claims against Silverman, Seiber, and the MPG Defendants. We disagree.
A. Standard of Review
¶ 18 We review a dismissal for lack of subject matter jurisdiction under Rule 12(b)(1) de novo when, as here, the trial court decided the jurisdictional issue as a matter of law. See Medina v. State, 35 P.3d 443, 452 (Colo. 2001). We also review de novo the dismissal of a complaint for failure to state a claim under Rule 12(b)(5). Houser v. CenturyLink, Inc., 2022 COA 37, ¶ 11.
B. Rule 12(b)(1) Dismissal of the Remaining Claims Against Silverman and Seiber
¶ 19 Immunity under the CGIA is a jurisdictional question to be determined under Rule 12(b)(1). Medina, 35 P.3d at 451-52. The plaintiff has the burden of proving jurisdiction. Id. at 452.
¶ 20 The CGIA immunizes public employees from claims arising in tort as long as (1) the circumstances don't fall within one of the enumerated exceptions to sovereign immunity; (2) the claims arise of out acts or omissions that occurred during the employees' performance of their duties and within the scope of their employment; and (3) the acts or omissions weren't willful and wanton. See § 24-10-118(2)(a), C.R.S. 2023; Hernandez v. City &Cnty. of Denver, 2018 COA 151, ¶ 9; see also § 24-10-106(1), C.R.S. 2023.
¶ 21 The trial court properly concluded that the defamation and civil conspiracy claims against Silverman and Seiber satisfy all three requirements and, thus, are barred by the CGIA.
1. Enumerated Exceptions to Sovereign Immunity
¶ 22 First, defamation and civil conspiracy are both tort claims that are not among the enumerated exceptions to sovereign immunity set forth in the CGIA. See § 24-10-106(1); Gallagher v. Bd. of Trs. for Univ. of N. Colo., 54 P.3d 386, 395 (Colo. 2002) ("Defamation is . . . not one of the . . . enumerated exceptions to tort immunity set forth in the CGIA."), abrogated on other grounds by Martinez v. Est. of Bleck, 2016 CO 58; Falcon Broadband, Inc. v. Banning Lewis Ranch Metro. Dist. No. 1, 2018 COA 92, ¶ 12 (civil conspiracy is "undeniably a tort claim" and is barred by the CGIA).
2. Scope of Employment
¶ 23 Second, as the trial court explained, Orvis "alleged sufficient facts to enable th[e] [c]ourt to determine, as a matter of law, that Silverman and Seiber acted within their scope of employment as public employees at the time of the alleged defamation and conspiracy." See Gallagher, 54 P.3d at 395 ("[I]t is procedurally proper for a trial court to decide the question of scope of employment on a C.R.C.P. 12(b)(1) motion to dismiss.").
¶ 24 The determination whether a public employee's act occurred within the scope of their employment depends on an examination of the totality of the circumstances. First Nat'l Bank of Durango v. Lyons, 2015 COA 19, ¶ 47. An act occurs within the scope of employment if it is "'necessarily incidental to the employment,' with the 'central inquiry [being] whether the employee is engaged in an activity that bears some relationship to the employer's business,'" or "if it occurs pursuant to work the employee does that is 'assigned to him [or her] by his [or her] employer . . . or is customary in the employer's business.'" Id. (alterations in original) (citations omitted); see also Podboy v. Fraternal Ord. of Police, 94 P.3d 1226, 1230 (Colo.App. 2004).
¶ 25 As the complaint details, when MPG's owner reached out to discuss an appropriate response to Orvis's continued efforts to contact the individual MPG Defendants' references, Seiber discussed the matter with his supervisor. And Silverman discussed Orvis's actions with Lehrburger, then chairman of the CDA's Hemp Advisory Committee, before advising Orvis, "We have not asked you to conduct any reference checks on our behalf." Based on these facts, the court correctly concluded that "Silverman and Seiber were engaged in an activity bearing some relationship and necessarily incidental to their duties as public employees."
¶ 26 Furthermore, as the court noted, "Orvis alleges only conclusory facts to suggest" that Silverman and Seiber weren't acting within the scope of their employment. Orvis alleges in various places in the complaint that, "[u]pon information and belief," Silverman's and Seiber's conduct was "outside of their official public duties" and "constituted an unauthorized exercise of their official function and scope as an employee [sic] of Colorado," but he doesn't offer any factual allegations to support those contentions.
¶ 27 Contrary to Orvis's contentions, the trial court wasn't required to conduct a hearing on this issue. Because the complaint didn't create any factual dispute by adequately alleging any facts that could support a finding that Silverman and Seiber acted outside the scope of their employment, there was no need for a hearing. See Bilderback v. McNabb, 2020 COA 133, ¶ 9 ("When there is no evidentiary dispute, the court may rule on the C.R.C.P. 12(b)(1) motion and decide the sovereign immunity question without a hearing, based on the pleadings alone.").
3. Willfulness and Wantonness
¶ 28 Third, Orvis didn't sufficiently plead that the conduct was willful and wanton. Willful and wanton conduct is conduct that is "not merely negligent" but exhibits "[a] conscious disregard for [the] safety of others." Martinez, ¶¶ 31-32 (alteration in original) (quoting Moody v. Ungerer, 885 P.2d 200, 205 (Colo. 1994)). "A complaint cannot merely assert that a public employee's acts or omissions were willful and wanton" but, rather, "must allege '"specific facts to support a reasonable inference" that the employee was consciously aware that his or her acts or omissions created danger or risk to the safety of others, and that he or she acted, or failed to act, without regard to the danger or risk.'" L.J. v. Carricato, 2018 COA 3, ¶ 33 (quoting Gray v. Univ. of Colo. Hosp. Auth., 2012 COA 113, ¶ 40); see also § 24-10-110(5)(a), C.R.S. 2023 ("In any action in which allegations are made that an act or omission of a public employee was willful and wanton, the specific factual basis of such allegations shall be stated in the complaint.").
¶ 29 As the trial court explained, Orvis's complaint "provides no specific information" regarding Silverman's and Seiber's allegedly willful and wanton conduct. "Instead, his allegations as to such conduct are largely conclusory." The complaint repeatedly states that, "[u]pon information and belief," the acts of the State Defendants "were purposefully committed with willful, wanton, and malicious intent" but fails to offer any factual allegations to support that contention. The court also noted that in response to the State Defendants' argument challenging the sufficiency of his allegations of willful and wanton conduct, Orvis merely referred to the allegations in the complaint regarding the emails and the alleged statements by Silverman that form the basis of his claims. As the court concluded, "[n]one of these references provide a sufficient factual basis for his allegation of willful and wanton conduct." And the only additional concrete allegation he points to on appeal is his allegation that Lehrburger referred to Seiber as "the devil" in a text message sent to Orvis; but this, too, does nothing to suggest that either Silverman or Seiber acted willfully and wantonly.
¶ 30 In a similar case addressing a defamation claim against a public employee, a division of this court held that to sufficiently allege willful and wanton conduct, the plaintiff had to "set forth specific facts to support a reasonable inference that [the employee] recklessly disregarded the consequences of her actions." Wilson v. Meyer, 126 P.3d 276, 282 (Colo.App. 2005). Because the plaintiff in that case "did not allege any facts to show that [the employee] was aware her conduct would cause the alleged harm," the division affirmed the dismissal of the claim. Id. at 282-83. For similar reasons, we conclude that the trial court properly dismissed the defamation claims against Silverman. The same is likewise true of the civil conspiracy claims against Silverman and Seiber, which are premised on the same conduct.
C. Rule 12(b)(5) Dismissal of All of the Remaining Claims
¶ 31 To survive a motion to dismiss under Rule 12(b)(5) for failure to state a claim, a plaintiff must allege a plausible claim for relief. N.M. v. Trujillo, 2017 CO 79, ¶ 20. As relevant here, claims for defamation aren't plausible if the challenged statements are substantially true, are assertions of pure opinion, or are rhetorical hyperbole. See Fry v. Lee, 2013 COA 100, ¶ 24 (substantially true); Creekside Endodontics, LLC v. Sullivan, 2022 COA 145, ¶ 51 (pure opinion); Wilson, 126 P.3d at 280 (rhetorical hyperbole). See generally Lawson v. Stow, 2014 COA 26, ¶ 15 (setting forth the elements of a defamation claim).
¶ 32 For a statement to be substantially true, "the substance, the gist, the sting of the matter [must be] true." SG Ints. I, Ltd. v. Kolbenschlag, 2019 COA 115, ¶ 21 (quoting Gordon v. Boyles, 99 P.3d 75, 81 (Colo.App. 2004)). The test for determining whether a statement is substantially true focuses on how an average reader would read the statement. Fry, ¶ 23. To be substantially true, there cannot be a substantial difference between the statement and the truth, such that the statement would produce a different effect on the reader than the effect that would be produced by the literal truth of the matter. SG Ints. I, ¶ 21.
¶ 33 To be a statement of pure opinion, a statement cannot contain or imply a verifiable fact, capable of being proved true or false. Coomer v. Donald J. Trump for President, Inc., 2024 COA 35, ¶ 131; Lawson, ¶¶ 30-31. Or, if it does, the statement cannot be such that reasonable people would conclude, based on the phrasing, context, and surrounding circumstances, that the assertion is one of fact. Coomer, ¶ 131; Lawson, ¶¶ 30-31. Even if a statement may fairly be characterized as an opinion, it's still actionable if it's based on false, defamatory facts that aren't disclosed in the context of the statement. Burns v. McGraw-Hill Broad. Co., 659 P.2d 1351, 135860 (Colo. 1983); Creekside Endodontics, ¶ 51.
¶ 34 To be rhetorical hyperbole, a statement, considered in context, must not be intended to be understood in its literal sense. Lane v. Ark. Valley Pub. Co., 675 P.2d 747, 750 (Colo.App. 1983).
1. Orvis's General Arguments
¶ 35 As an initial matter, we reject Orvis's argument that the trial court failed to analyze his complaint under the correct legal standards. Those standards require courts to accept well-pleaded factual allegations as true but provide that "facts pleaded as legal conclusions (i.e., conclusory statements) are not entitled to the assumption that they are true." Scott v. Scott, 2018 COA 25, ¶ 19; accord Warne v. Hall, 2016 CO 50, ¶¶ 9, 24.
¶ 36 The trial court properly accepted the well-pleaded factual allegations as true while properly disregarding the conclusory legal allegations that were unsupported by any alleged facts. For example, the court presumed that the defendants had, in fact, made the statements Orvis claimed they made. But it disregarded Orvis's conclusory allegations, such as that the statements were "defamatory," were made with knowledge of their falsity or "reckless disregard as to whether they were false," and were made with "malicious intent" because Orvis failed to allege facts supporting his conclusions. See Warne, ¶ 27 ("[B]road allegations" that the defendant's actions "were motivated by malice or animosity . . . were unchallengeably conclusory allegations . . . incapable of supporting a plausible claim for relief."); Fry, ¶ 57 (disregarding the "conclusory allegation" that the defendants "acted with actual malice" because the plaintiff "made no factual allegations to support this conclusion of law").
¶ 37 We also reject Orvis's argument that the trial court failed to take into account all the factual allegations and evidence raised in or attached to the complaint. He argues that the court erred by concluding, at this early stage in the proceedings, that the defendants' statements were substantially true, assertions of opinion, and/or rhetorical hyperbole. But, contrary to Orvis's suggestion, the meaning of allegedly defamatory words is a matter of law the court can determine on a motion to dismiss. See Fry, ¶ 29 ("In ruling on a C.R.C.P. 12(b)(5) motion to dismiss, the meaning of allegedly defamatory words is a matter of law left to the court - not a factual allegation to which it must defer."); see also Gordon, 99 P.3d at 79 ("Whether a statement is defamatory is a question of law.").
¶ 38 Orvis also argues that the court ignored a letter, signed by over 100 people, protesting MPG's receipt of the Hemp Center of Excellence contract, as well as statements by two state legislators expressing concern about it. But whether others may also have been concerned about MPG's receipt of the contract doesn't impact whether Orvis's claims in this case were sufficiently pleaded.
¶ 39 Thus, we conclude that the court analyzed Orvis's complaint under the proper legal standards, including presuming the truth of any well-pleaded factual allegations, disregarding the unsupported conclusory allegations, and addressing all relevant evidence.
2. The Claims Against Silverman and Seiber
¶ 40 As to the merits, like the trial court, we conclude that Rule 12(b)(5) provides an alternative basis for dismissal of the defamation and civil conspiracy claims against Silverman and Seiber. Those claims are premised on alleged statements by Silverman that Orvis was a "sore loser," "burned his bridges," "harassed individuals," "impersonated public officials," and was "blacklisted" from the hemp industry. The claims aren't actionable because the alleged statements weren't defamatory.
¶ 41 As the trial court determined, the "statements that Orvis was a 'sore loser' and 'burned his bridges' . . ., when viewed in context, . . . are merely assertions of opinions expressed in imaginative and hyperbolic terms and thus not actionable." Calling someone a "sore loser" after he lost a contract bid and saying someone "burned their bridges" after he raised complaints don't contain or imply verifiable facts, aren't statements that reasonable people would conclude are assertions of fact, and don't signify opinions based on undisclosed defamatory facts. They also aren't the kind of statements that would be intended to be understood in their literal sense. Thus, they are pure opinion and/or rhetorical hyperbole and, as such, are not actionable. See Coomer, ¶ 131; Lawson, ¶¶ 30-31; Burns, 659 P.2d at 1358-60; Creekside Endodontics, ¶ 51; Lane, 675 P.2d at 750; see also Giduck v. Niblett, 2014 COA 86, ¶ 39 (calling someone a "charlatan" was hyperbole that didn't contain or imply any verifiable fact); Wilson, 126 P.3d at 280 (calling someone "paranoid" was rhetorical hyperbole).
¶ 42 As the trial court also determined, the other statements "can be characterized," based on the complaint and attached documents, "as being substantially true."
¶ 43 The statement that Orvis "harassed individuals" is substantially true. The emails Orvis referenced in and attached to the complaint show that after his own company's bid lost out to MPG's bid for the Hemp Center of Excellence contract, he contacted the individual MPG Defendants' former employers and references under the guise of doing "due diligence" on the procurement process. By doing so, he persistently annoyed and created unpleasant situations for the individual MPG Defendants and those being contacted. See Merriam-Webster Dictionary, https://perma.cc/5LTT-TZUE (defining "harass" as "to annoy persistently" or "to create an unpleasant or hostile situation for especially by uninvited and unwelcome verbal or physical conduct"); see also Fry, ¶ 29 (courts needn't accept a defendant's assertion about a statement's defamatory meaning as fact but, instead, must discern the natural and ordinary meaning, often by referring to a dictionary). In fact, in the attached emails, the individual MPG Defendants described Orvis's actions as a "nuisance" and "harassing," and others described one of Orvis's messages as "weird" and "fishy," particularly given that it didn't come from a state email address. Thus, Orvis did, in fact, harass individuals, irrespective of whether he could've been or was criminally charged for his actions.
¶ 44 The statement that Orvis "impersonated public officials" is also substantially true. In one of the emails referenced in and attached to the complaint, Orvis emailed BBC Research claiming to be "performing some due diligence on a procurement process that is being run by the State of Colorado." By doing so, Orvis implied that he was a CDA official who was authorized to perform due diligence on behalf of the CDA when, in fact, he was not so authorized, as Orvis alleges in the complaint he was later told by Silverman. See Merriam-Webster Dictionary, https://perma.cc/8A39-98ZN (defining "impersonate" as "to assume or act the character of [someone else]").
¶ 45 And the statement that Orvis was "blacklisted" from the hemp industry is substantially true. Certainly, Orvis alleges repeatedly throughout the complaint that he was "blacklisted" from the industry. Thus, he basically admits that this statement is substantially true.
¶ 46 Because the challenged statements weren't defamatory, Orvis's defamation claims against Silverman necessarily fail. And because the civil conspiracy claims are ancillary to the defamation claims, the civil conspiracy claims also fail. C.f. L.S.S. v. S.A.P., 2022 COA 123, ¶ 53 (ancillary claims survived where the defamation claim on which they were premised survived); see Jet Courier Serv., Inc. v. Mulei, 771 P.2d 486, 502 (Colo. 1989) (a claim for civil conspiracy requires one or more unlawful overt acts). Therefore, the court properly dismissed the claims against Silverman and Seiber under Rule 12(b)(5), as well as Rule 12(b)(1).
3. The Claims Against the MPG Defendants
¶ 47 We conclude that the claims against the MPG Defendants were also properly dismissed under Rule 12(b)(5). Those claims are premised on alleged statements by the MPG Defendants that Orvis was "posing as" or "impersonat[ing]" a CDA official, was "harassing" individuals, and may have been committing crimes or civil offenses for which the state should "file charges" or seek a "restraining order." The claims aren't actionable because the alleged statements weren't defamatory.
¶ 48 Like the statements attributed to Silverman, the statements attributed to the MPG Defendants that Orvis was "harassing" individuals and "posing as" or "impersonat[ing]" a CDA official were substantially true.
¶ 49 Moreover, the statements asking some of the State Defendants whether Orvis had "crossed a line" such that they could "file charges" or seek "a restraining order" were not defamatory. Those were simply statements inquiring whether the actions Orvis had taken - which are not in dispute - might warrant a request for criminal or civil relief. Simply making such inquiries doesn't "hold[] an individual up to contempt or ridicule thereby causing him to incur injury or damage," as is required to establish defamation. Rosenblum v. Budd, 2023 COA 72, ¶ 43 (quoting Lawson, ¶ 15). Alternatively, even if the statements might be deemed assertions that Orvis had actually engaged in illegal conduct, they are nonactionable assertions of opinion based on a disclosed and nondefamatory factual premise. See Wilson, 126 P.3d at 280 (a statement that the plaintiff had "crossed the bounds of acceptable ethical behavior," based on a factual premise that was disclosed as part of the statement, was an assertion of pure opinion); Seible v. Denver Post Corp., 782 P.2d 805, 809-10 (Colo.App. 1989) ("[A]ny innuendo that [the plaintiff] was attempting to evade [building code] regulations," based on a factual premise that was disclosed as part of the statement, was an assertion of pure opinion.).
¶ 50 Therefore, the defamation claims and the ancillary civil conspiracy claims against the MPG Defendants necessarily fail, c.f. L.S.S., ¶ 53; Jet Courier Serv., 771 P.2d at 502, and the trial court properly dismissed those claims.
III. Attorney Fee Award
¶ 51 Orvis also contends that the trial court erred in awarding attorney fees by (1) engaging in ex parte communications about scheduling the hearing; (2) denying his request to delay the hearing date; and (3) including in the award fees attributable to defendants he had voluntarily dismissed from the case under Rule 41(a)(1)(A). We disagree with all three contentions.
A. Ex Parte Communications
¶ 52 We first conclude that Orvis hasn't established that the trial court engaged in any improper ex parte communications.
¶ 53 We review this issue de novo. See Wilkerson v. Dist. Ct., 925 P.2d 1373, 1376 (Colo. 1996).
¶ 54 While "trial judges must take great care to avoid ex parte communications with a party, attorney, or individual affiliated with a party concerning pending judicial proceedings," id. at 1377, the Code of Judicial Conduct and our procedural rules permit limited ex parte communications for the purpose of scheduling hearings. Specifically, Rule 2.9 of the Code of Judicial Conduct permits nonsubstantive "ex parte communication for scheduling, administrative, or emergency purposes," so long as no party will gain an advantage as a result and the judge notifies all other parties of the substance of the communication and gives them an opportunity to respond. C.J.C. 2.9(A)(1). When, as here, the plaintiff is pro se, C.R.C.P. 16(b)(2) designates defense counsel to schedule conferences among the parties. And C.R.C.P. 121, section 1-6 sets forth procedures for a court clerk to set a hearing and for one of the parties to be charged with contacting other parties, clearing dates with them, and filing a confirmation with the court of the date and time of a scheduled hearing.
¶ 55 In accordance with these provisions, the court entered orders designating counsel for Silverman, Seiber, and the MPG Defendants as the attorneys responsible for contacting the court clerk to schedule the hearing, instructing them to clear the date and time of that hearing with Orvis, and notifying Orvis and giving him an opportunity to respond. Therefore, the court's actions didn't constitute improper ex parte communications.
B. Delay of the Hearing
¶ 56 We next conclude that the court didn't err by denying Orvis's request to delay the hearing.
¶ 57 We review this decision for an abuse of discretion. See Black v. Black, 2018 COA 7, ¶ 107. In determining whether to grant a continuance, a court should consider the circumstances of a given case, weighing the right of the party seeking a continuance to a fair hearing against the prejudice that may result from delay. Id.
¶ 58 We discern no abuse of discretion in the trial court's finding that Orvis failed to allege good cause to delay the hearing. The court acknowledged Orvis's request for additional time to find an expert witness but determined that it didn't justify a delay, given that Orvis had had sufficient notice earlier to search for an expert witness. And while the court didn't directly address Orvis's argument that he couldn't take time off from his new job for the hearing, it noted that the hearing was set at Orvis's request, and, thus, it couldn't avoid the inconvenience a hearing might cause him. We also note that Orvis didn't offer any alternative dates or indicate when he would be available for a hearing.
C. Fees for Voluntarily Dismissed Defendants
¶ 59 Lastly, we conclude that the trial court acted within its authority and didn't abuse its discretion by declining to exclude from its fee award work performed for the State Defendants Orvis had voluntarily dismissed pursuant to Rule 41(a)(1)(A).
¶ 60 We review a court's award of attorney fees for an abuse of discretion. Franklin Credit Mgmt. Corp. v. Galvan, 2019 COA 107, ¶ 27. A court abuses its discretion when it misapplies the law; its decision is manifestly arbitrary, unreasonable, or unfair; or its findings are so against the weight of the evidence as to compel a contrary result. Id. To the extent that we're determining whether the court had authority to award fees that might be attributable to defendants who were voluntarily dismissed, our review is de novo. See In re E.K., 2022 CO 34, ¶ 30 ("[L]egal conclusions that predicate th[e] decision" to award attorney fees are reviewed de novo.).
¶ 61 Under Colorado law, an award of attorney fees is generally required when the court dismisses a tort action pursuant to Rule 12(b). § 13-17-201(1); Castro v. Lintz, 2014 COA 91, ¶ 12. Thus, because the court granted Silverman and Seiber's and the MPG Defendants' motions to dismiss, it was required to award attorney fees to those defendants.
¶ 62 Contrary to Orvis's contention, the court wasn't required to exclude from that fee award work relating to the other State Defendants he'd voluntarily dismissed under Rule 41(a)(1)(A). By implication, the rule generally allows a plaintiff to escape liability for a defendant's attorney fees by seeking voluntary dismissal. See Emps. Ins. of Wausau v. RREEF USA Fund-II (Colo.), Inc., 805 P.2d 1186, 1188 (Colo.App. 1991).
¶ 63 But that doesn't mean that, when a plaintiff voluntarily dismisses claims against only some of the defendants, a court must exclude fees attributable to the dismissed defendants from a fee award to the remaining defendants, even if, as here, the court finds that the claims were so intertwined that it is impossible to "disentangle" the claims against the different defendants from one another and that the same services would've been provided regardless of the existence of the claims against the dismissed defendants. See Dubray v. Intertribal Bison Co-op., 192 P.3d 604, 607 (Colo.App. 2008) (a trial court properly declined to apportion attorney fees awarded under section 13-17-201 as between tort and non-tort claims where the entire action was dismissed for the same reason, and the defendants would've incurred the same or nearly the same fees had the case involved only the tort claims); Padilla v. Ghuman, 183 P.3d 653, 664 (Colo.App. 2007) (a trial court properly declined to apportion attorney fees awarded under section 13-17102, C.R.S. 2023, as between frivolous and non-frivolous claims where the court found that the defense of all the claims was all inextricably intertwined).
¶ 64 Moreover, the trial court didn't abuse its discretion by finding that the claims were intertwined and that the same legal services would've been performed regardless of the claims initially raised against the dismissed State Defendants. The State Defendants were all represented by the same counsel; they filed their pleadings, including their motion to dismiss, jointly; and, aside from the defamation claim brought against Silverman (which remained in the case following the partial dismissal), the claims initially asserted against the remaining State Defendants (for civil conspiracy and violation of COCCA) were identical. The court also credited the defendants' offer of proof indicating that their expert witness would opine that the work performed for Silverman and Seiber couldn't be disentangled from that performed for the other, dismissed State Defendants and that counsel would've performed the same amount of work regardless of whether they'd had two or eleven clients.
IV. Appellate Attorney Fees
¶ 65 Finally, Silverman, Seiber, and the MPG Defendants request an award of their appellate attorney fees under section 13-17-201.
¶ 66 Because Silverman, Seiber, and the MPG Defendants were successful in defending the dismissal under Rule 12(b), they are entitled to an award of their reasonable appellate attorney fees under section 13-17-201. See Patterson v. James, 2018 COA 173, ¶ 48; Vickery v. Evelyn V. Trumble Living Tr., 277 P.3d 864, 872 (Colo.App. 2011). Pursuant to C.A.R. 39.1, we exercise our discretion to remand the case to the trial court to determine the amount of reasonable appellate fees they should be awarded.
V. Disposition
¶ 67 The judgment and the attorney fee orders are affirmed, and the case is remanded to the trial court to determine and award Silverman, Seiber, and the MPG Defendants their reasonable appellate attorney fees.
JUDGE J. JONES and JUDGE HARRIS concur.