Tender Care v. Barnett and Davis, 22CA1611

Division I, Opinion by Juge Dailey; Judge Dunn and Judge Harris concur.

Decision: Affirmed

Procedure: On appeal from El Paso County District Court, Judge David Prince.

Factual background and district court holding:

In January 2022, defendant brought her puppy to plaintiff, a veterinary clinic. The clinic examined the puppy and released her back to defendant. The next morning, defendant brought her puppy to a different veterinary clinic, where the dog was diagnosed with pneumonia. Defendant subsequently contacted plaintiff to inform it that it had improperly treated her puppy, but plaintiff refused to issue defendant a refund. In February and March 2022, defendant posted six scathing online reviews about her experience with plaintiff, to several of which another dissatisfied customer agreed. After defendants refused to remove their posts, the plaintiff instituted the present action for defamation per se, and defendants responded by filing a special motion to dismiss under Colorado’s anti-SLAPP statute. The district court denied the special motion, ruling that defendants had failed to establish that their statements addressed “matters of public interest or a public issue.”

Issue: Whether an online review can be made in connection with an issue of public interest such that it is subject to the protections of Colorado’s anti-SLAPP statute, § 13-20-1101, C.R.S. 2023.

The division first determined that defendants’ comments did not address a “public issue” or “issue of public interest.” While the division acknowledged that public websites are “public forums” for anti-SLAPP purposes, not every website posting involves an issue of public interest. Since “public issue” is not defined in Colorado’s anti-SLAPP statute, the division looked to existing First Amendment case law. In sum, public issues typically concern political or social issues, public officials, people or businesses that had been the subject of news articles, a large number of persons, or even a topic of widespread public interest. Here, however, defendants contend that their statements qualify for anti-SLAPP protection because they conveyed important information about the public issue of the quality of veterinary services in a small, rural community. The division agreed with defendants that their statements concerned a public issue.

But to qualify for anti-SLAPP protection, a particular type of nexus between the challenged statements and the asserted issue of public interest must exist, relating the statements to a broader public discussion about the issue. Here, defendants’ statements did not contribute to any broader public discussion about pet health or any other broader issue, so they did not qualify for anti-SLAPP protection. Because defendants’ statements did not fall under the protection of the anti-SLAPP statute, the division affirmed the district court’s ruling.

Nicola v. Xcel Energy, 22CA0656

Division V, Opinion by Judge Brown; Judge Gomez and Judge Taubman concur.

Decision: Affirmed in part and reversed in part.

Factual background and district court holding:

In November 2018, plaintiff’s daughter was struck by a vehicle crossing a street where the streetlights were not working. She sustained serious injuries and died nineteen days later. In May 2019, plaintiff initiated a wrongful death action against the driver of the vehicle but settled the suit in March 2020. She then filed a notice of voluntary dismissal without prejudice. In December 2020, plaintiff filed a second lawsuit against the city and the power company, asserting wrongful death claims and survival claims for negligence and premises liability. The district court granted defendants’ C.R.C.P 12(b)(5) motions to dismiss, ruling that the wrongful death claims were precluded under the “one civil action” rule set forth in section 13-21-203(1)(a) of the Wrongful Death Act and that the survival claims were barred by either a one-year statute of limitations under section 13-81-103(1)(b), calculated from the date of the daughter’s death, or a two-year statute of limitations under section 13-80- 102(1)(h), C.R.S. 2023, calculated from the date of the accident.

Issues: (I) Whether the “one civil action” rule set forth in section 13-21-203(1)(a), C.R.S. 2023, of the Wrongful Death Act bars the plaintiff from asserting wrongful death claims in a lawsuit where the plaintiff previously filed a lawsuit asserting wrongful death claims against a different defendant but voluntarily dismissed the suit without prejudice; and (II) under what circumstances section 13-81-103(1)(b) requires the personal representative of a decedent who was a person under a disability to bring a survival claim within one year of the decedent’s death.

The division first determined that the district court was correct in dismissing plaintiff’s wrongful death claims. The Wrongful Death Act provides that “[t]here shall be only one civil action . . . for recovery of damages for the wrongful death of any one decedent.” § 13-21-203(1)(a). “The words ‘only’ and ‘one’ are self-evident, leaving no room for doubt that Colorado law forbids multiple actions for the recovery of damages for the wrongful death of a decedent.” Hernandez v. Downing, 154 P.3d 1068, 1070 (Colo. 2007). An “action” is “a proceeding on the part of one person, as actor, against another, for the infringement of some right of the first, before a court of justice, in the manner prescribed by the court or law.” Id.

The division concluded that plaintiff’s wrongful death claims were barred by the prior lawsuit against the driver. Despite plaintiff’s voluntary dismissal of the claims, the suit nonetheless constituted a “civil action”. The division reasoned that the parties to the first lawsuit were not left in the same positions they would have been had that action never been filed, as the plaintiff had recovered and the driver had paid a settlement. A “civil action” does not require a final adjudication on the merits by a judge.

The division then determined that the district court erred by concluding that plaintiff’s survival claims were time barred under section 13-81-103(1)(b), reasoning that construing the statute to shorten the statute of limitations would frustrate the purpose of the statute to protect people during periods of disability. The division ruled that the one-year extension, calculated from the date of the death, applies only when the person with a disability has a legal representative and dies after the end of the statute of limitations but less than two years after their representative was appointed. In other circumstances, such as the ones at hand, the two-year extension, calculated from the date of the incident, will apply.