CourtListener 10658269•Winninger v. Vail Clinic
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24CA0632 Winninger v Vail Clinic 08-21-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0632
Eagle County District Court No. 17CV30102
Honorable Russel H. Granger, Judge
Honorable Paul R. Dunkelman, Judge
Lindsay Winninger and Sports Rehab Consulting LLC, a Colorado limited
liability company,
Plaintiffs-Appellants and Cross-Appellees,
v.
Vail Clinic, Inc. d/b/a Vail Valley Medical Center, a Colorado nonprofit
corporation,
Defendant-Appellee and Cross-Appellant,
and
Doris Kirchner, Nicholas Brown, and Michael Shannon,
Defendants-Appellees.
JUDGMENTS AFFIRMED IN PART AND VACATED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division II
Opinion by JUDGE FOX
Harris and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 21, 2025
Jesse Wiens Law, Jesse Wiens, Edwards, Colorado; Sonya R. Braunschweig,
Minneapolis, Minnesota, for Plaintiffs-Appellants and Cross-Appellees
Foley & Lardner LLP, Tamera D. Westerberg, Stephanie Adamo, Zachary A.
Flagel, Denver, Colorado, for Defendant-Appellee and Cross-Appellant
Fennemore Craig, P.C., John M. McHugh, Allison M. Hester, Amy L. Jones,
Denver, Colorado, for Defendants-Appellees
¶1 In this defamation case, plaintiffs, Lindsay Winninger
(Winninger) and her business, Sports Rehab Consulting LLC (Sports
Rehab), appeal the summary judgment orders entered in favor of
defendants, Vail Clinic, Inc. d/b/a Vail Valley Medical Center (Vail
Health), and its chief executive officer (CEO), Doris Kirchner, as well
as the award of costs to Vail Health’s vice president and director,
Nicholas Brown and Michael Shannon, respectively. Vail Health
cross-appeals the judgment entered following a jury trial on its
counterclaims. We vacate the award of costs to Brown and
Shannon, but we otherwise affirm the judgments.
I. Background
¶2 Winninger worked as a physical therapist for Howard Head
Sports Medicine (Howard Head), a clinic run by Vail Health. In
2012, Winninger left Howard Head to become the head physical
therapist for the United States women’s ski team. When she left,
Winninger copied documents from Howard Head’s shared network
drive onto an external storage device (a USB drive). These
documents included statutorily protected health information (PHI)
for 710 patients. However, Vail Health would not learn that
1
Winninger took files in 2012 until years later, after litigation and
discovery commenced.
¶3 In 2014, Winninger formed Sports Rehab and later opened
clinics in Vail and Denver. She hired David Cimino,1 her former
colleague from Howard Head, to work at Sports Rehab’s Vail
location. In early 2016, Vail Health discovered that before he left
Howard Head in December 2015, Cimino had downloaded
information from the clinic’s shared network.
¶4 Vail Health’s actions taken in response to learning that Cimino
downloaded this information gave rise to Winninger and Sports
Rehab’s initiation of this lawsuit. After Vail Health notified its
patients regarding “a potential disclosure of [PHI],” it sent a letter to
the Vail police about the potential disclosure (Letter); it responded
to a subpoena from the Colorado Department of Regulatory
Agencies (DORA) about the incident with a letter substantially
similar to the one sent to the police (DORA Letter); and it sent a
draft complaint to Winninger purportedly asserting several claims
against Winninger, Sports Rehab, and Cimino (Draft Complaint).
1 Cimino was a third-party defendant in the case before the district
court, but he is not a party to this appeal.
2
¶5 Winninger and Sports Rehab then sued Vail Health and
Kirchner, asserting claims for defamation and tortious interference
with Sports Rehab’s current and prospective business relationships
based on alleged defamatory statements in the Letter, the DORA
Letter, and the Draft Complaint. Vail Health (without Kirchner)
brought counterclaims against Winninger and Sports Rehab and
third-party claims against Cimino. Winninger and Sports Rehab
later filed their first amended complaint (FAC) with twenty-seven
claims — twenty-four defamation claims and three tortious
interference claims. The gist of the claims was that Vail Health and
its employees, Kirchner, Brown, and Shannon, had defamed
Winninger and Sports Rehab by suggesting that Winninger stole
Vail Health’s PHI and implicating her in Cimino’s alleged theft of
PHI, thereby affecting her ability to obtain referrals and causing
financial and reputational harm to Sports Rehab.
¶6 In 2019, Vail Health and Kirchner moved for summary
judgment on the twenty-four defamation claims. Three days later,
Winninger and Sports Rehab again moved to amend their
complaint. As discussed below, the district court initially granted
3
their request but later reconsidered and denied their motion to file a
second amended complaint (SAC).
¶7 On May 31, 2019, the district court granted in part Vail Health
and Kirchner’s summary judgment motion, entering judgment
against Winninger and Sports Rehab on most of the defamation
claims, including the claims related to the Letter, the DORA Letter,
and the Draft Complaint (the 2019 Order).
¶8 During discovery on the remaining claims and counterclaims,
Vail Health learned that when Winninger left Howard Head in 2012,
she also downloaded documents allegedly containing PHI. Vail
Health and Kirchner moved for summary judgment on the
remaining defamation and tortious interference claims on the
grounds that the statements concerning Winninger’s
misappropriation of PHI were substantially true and therefore not
defamatory. In November 2021, the court granted the motion and
entered judgment against Winninger and Sports Rehab on all their
remaining claims (the 2021 Order).
¶9 The dismissal of Winninger and Sports Rehab’s claims left only
Vail Health’s counterclaims for misappropriation of trade secrets,
interference with contract, civil conspiracy, and conversion. The
4
parties proceeded to a jury trial on those counterclaims in February
2024. The jury found in favor of Winninger and Sports Rehab on all
counterclaims. It found that, although Cimino took Vail Health’s
documents, Winninger did not misappropriate any of the
information; that Winninger had interfered with Cimino’s
performance of his contract, but Vail Health did not sustain any
damages; and that Winninger took documents owned by Vail
Health, but she did not “exercise unauthorized dominion or
ownership over these documents when she took the[m].”
II. Issues on Appeal
¶ 10 Winninger and Sports Rehab argue that the district court
erred by denying their motion to file the SAC and that the 2019
Order is void because it improperly relied on the inoperative SAC.
¶ 11 Regarding the 2019 Order, Winninger and Sports Rehab argue
that the district court erred by granting summary judgment on the
defamation claims involving Vail Health’s statements in (1) the
Letter; (2) the DORA Letter; and (3) the unfiled Draft Complaint.
Winninger and Sports Rehab also argue that the court erred by
granting summary judgment in Kirchner’s favor on the defamation
claims involving statements made by others that were allegedly
5
attributable to Kirchner as Vail Health’s CEO. And they challenge
the court’s award of fees and costs to Shannon and Brown.
¶ 12 As to the 2021 Order, Winninger and Sports Rehab contend
that the district court erred by granting summary judgment despite
disputed issues of material fact and because the jury’s verdict on
the counterclaims proved that Vail Health’s statements were not, in
fact, substantially true.
¶ 13 Vail Health’s cross-appeal challenges the district court’s
refusal to give its proffered jury instruction related to Vail Health’s
conversion counterclaim. Kirchner, Shannon, and Brown also
request attorney fees and costs incurred on appeal.
III. Winninger and Sports Rehab’s Appeal
A. Standard of Review and Summary Judgment Principles
¶ 14 We review orders granting summary judgment de novo.
McDonald v. Zions First Nat’l Bank, N.A., 2015 COA 29, ¶ 44.
“Whether a . . . qualified privilege exists is a question of law that we
review de novo.” Gonzales v. Hushen, 2023 COA 87, ¶ 77, aff’d in
part and rev’d in part on other grounds, 2023 COA 87. However,
when reviewing appeals from a grant of summary judgment, we
“appl[y] the same standards as the trial court in determining
6
whether summary judgment is warranted.” McDonald, ¶ 85
(citation omitted). Therefore, we do not “consider ‘arguments and
evidence [that were] not presented to the trial court in connection
with [the] motion for summary judgment.’” Id. (alterations in
original) (citation omitted).
¶ 15 “[S]ummary judgment ‘is only appropriate if the pleadings,
affidavits, depositions, or admissions establish that there is no
genuine issue of material fact and that the moving party is entitled
to judgment as a matter of law.’” Id. at ¶ 45 (citation omitted).
Initially, the moving party bears the burden of “establish[ing] that
no genuine issue of fact exits.” Id. at ¶ 46 (quoting Aspen
Wilderness Workshop, Inc. v. Colo. Water Conservation Bd., 901 P.2d
1251, 1256 (Colo. 1995)). If the movant meets its initial burden,
“the burden shifts to the nonmoving party to establish that there is
a triable issue of fact.” Id. (quoting McCormick v. Union Pac. Res.
Co., 14 P.3d 346, 349 (Colo. 2000)). The nonmoving party must
“set forth specific facts showing a genuine issue of material fact”
and “cannot rely on the mere allegations [in the] pleadings.” Id. at
¶ 61 (alteration in original) (citation omitted).
7
B. The 2019 Order
1. Second Amended Complaint
¶ 16 Winninger and Sports Rehab first challenge the district court’s
denial of their motion to file the SAC. The parties agree that this
issue was preserved. See Rinker v. Colina-Lee, 2019 COA 45, ¶ 26
(If “the trial court rules sua sponte on an issue, the merits of its
ruling are subject to review on appeal, whether timely objections
were made or not.”). Winninger and Sports Rehab also contend
that the 2019 Order was void because the court relied on the
inoperative SAC. We disagree with both arguments.
¶ 17 Winninger and Sports Rehab moved to file the SAC in January
2019, and the district court initially granted the request on March
5, 2019, finding that “the amended complaint is expansive” but that
it would not “create unreasonable delay.” On the same day, the
court also granted Vail Health’s motion to amend its counterclaims
and third-party complaint. The SAC spanned more than 100 pages,
raised thirty-four claims, and added Shannon and Brown as
defendants.
¶ 18 On May 22, 2019, the district court continued a trial setting
conference because its consideration of the summary judgment
8
motion was taking longer than “even the most complex cases due to
the length of” Winninger and Sports Rehab’s response to Vail
Health’s summary judgment motion (Response), the Response’s
poor organization, and the length of the SAC. Winninger and
Sports Rehab’s attorney complained that the “case was filed early in
May 2017”; that “[h]aving a trial setting conference . . . years [later]
d[id] not seem to be in accord with the objectives of the district”;
and that such delay “likely pushes the trial into next year.” On May
28, 2019, acknowledging the “recent[] complain[t] that this case . . .
need[ed] to get to [trial],” the district court found that “[a]n amended
complaint w[ould] cause additional delay” and rescinded its
previous grant of leave to Winninger and Sports Rehab to file the
SAC.
¶ 19 Three days later, on May 31, 2019, the district court’s 2019
Order granted partial summary judgment in Vail Health’s favor on
Winninger’s defamation claims. In its 2019 Order, the court noted
it had granted Winninger and Sports Rehab’s motion to file the SAC
but failed to mention its later reconsideration and denial of that
motion. The court then stated that the 2019 Order pertained “only
to the [SAC]” but that it would refer to the allegations in the FAC,
9
consistent with Vail Health and Kirchner’s motion for summary
judgment, for efficiency and clarity. However, aside from these
references and the mention of two exhibits attached to Winninger
and Sports Rehab’s motion to file the SAC, the 2019 Order did not
otherwise discuss the SAC. And the two cited exhibits were also
attached to the summary judgment motion.
¶ 20 Winninger and Sports Rehab now argue that the district court
abused its discretion when it sua sponte rescinded its order
allowing the SAC, while granting Vail Health’s motion to amend its
counterclaims and third-party complaint.
¶ 21 “We review a district court’s denial of a motion to amend
pleadings for an abuse of discretion.” Riccatone v. Colo. Choice
Health Plans, 2013 COA 133, ¶ 47. An abuse of discretion occurs if
the court’s “decision is manifestly arbitrary, unreasonable, or
unfair.” Id. “The party seeking to amend bears the burden of
demonstrating that leave should be granted.” Id. at ¶ 48. Although
district courts are generally encouraged to grant such requests,
“leave to amend is not to be granted automatically.” Id. at ¶ 49
(quoting Varner v. Dist. Ct., 618 P.2d 1388, 1390 (Colo. 1980)); see
10
also C.R.C.P. 15(a). Concerns about delay alone “may justify denial
of leave to amend.” Riccatone, ¶ 49.
¶ 22 Winninger and Sports Rehab contend that the district court
provided no reason for its “inconsistent or disparate treatment” of
the two motions to amend, but this is not entirely accurate. The
court explained that it was continuing the trial setting conference in
part due to the length of the SAC. Sports Rehab and Winninger
complained about any further delay, so the court heeded their
concerns and withdrew its grant of leave to file the SAC. Because
the delay was partly attributable to the SAC’s length and
complexity, the court exercised its discretion to remedy the delay by
rejecting the SAC. And although the court granted Vail Health’s
motion to amend its counterclaims and third-party complaint, Vail
Health did not express concerns about timing, nor did the court cite
Vail Health’s amended pleading as a source of delay. Moreover, Vail
Health’s amended pleading was less than thirty pages long and did
not add new claims, compared to the 123-page SAC that proposed
the addition of multiple new claims and parties.
¶ 23 Winninger and Sports Rehab also do not explain why they did
not include or could not have included the proposed additional
11
claims in the FAC. See id. at ¶ 49 (“The moving party carries the
burden of demonstrating a . . . reason for not pleading a claim
earlier.”). Conversely, Vail Health explained that it sought leave to
amend based on new evidence revealed during discovery. We also
reject Winninger and Sports Rehab’s argument that this case
mirrors the Southern Cross Ranches case in which the district court
was found to have abused its discretion by entering two
inconsistent summary judgment rulings. See S. Cross Ranches,
LLC v. JBC Agric. Mgmt., LLC, 2019 COA 58, ¶¶ 45-50. There, the
court did not explain why it reached inconsistent results, and
“while the court had discretion to disregard its prior ruling, the
record [did] not show that it consciously did so.” Id. at ¶¶ 46, 48.
Here, by contrast, the court explained that it was disregarding its
prior ruling based on Winninger and Sports Rehab’s concerns about
further delay.
¶ 24 Under these circumstances, the district court did not abuse its
discretion by rescinding its initial order and denying leave to file the
SAC. See Riccatone, ¶ 47. We disagree with Winninger and Sports
Rehab’s argument that Riccatone is inapplicable because the
circumstances there involved “seeking futile amendments after
12
summary judgment was granted.” In Riccatone, ¶¶ 49-50, a
division of this court explicitly held that delay alone may justify
denial of leave to amend, and the district court’s ruling here was
premised not only on the delay but also on addressing Winninger
and Sports Rehab’s concerns about that delay.
¶ 25 Finally, we reject Winninger and Sports Rehab’s argument that
the district court’s brief references to the SAC voided its 2019
Order. Even assuming this argument was preserved for appeal, we
discern no reversible error. The district court’s order, the summary
judgment motion, and all related pleadings were substantively
based on the operative complaint (the FAC); the court merely
referenced the inoperative SAC in passing. As a result, the out-of-
state cases involving orders based on inoperative complaints, upon
which Winninger and Sports Rehab rely, are inapposite. When it
denied Winninger and Sports Rehab’s motion to file the SAC, the
court said its 2019 Order was “in the final stages.” Thus, it appears
the court simply forgot to remove the references to the SAC, but
nothing suggests that the 2019 Order was substantively based on
it. Accordingly, the court’s brief references to the SAC did not void
the 2019 Order.
13
¶ 26 In any event, because the court only considered claims raised
in the operative FAC, any references to the SAC were harmless. See
C.R.C.P. 61; Laura A. Newman, LLC v. Roberts, 2016 CO 9, ¶ 10
(noting that an error is harmless unless it “substantially influenced
the outcome of the case”). The court’s mention of the SAC and two
duplicative exhibits attached to the motion to file the SAC did not
“substantially influence[] the outcome of the case,” Roberts, ¶ 10,
because — as the court noted — “the [claims] at issue are unaltered
by the [SAC] . . . but for Plaintiffs’ addition to each c[laim] their
entitlement to an award of damages.”
2. Vail Police Letter Statements
¶ 27 Winninger and Sports Rehab next contend that the district
court erred by granting summary judgment in favor of Vail Health
on their defamation claim involving statements in the Letter Vail
Health sent to Vail police.2 We disagree.
¶ 28 In the FAC, Winninger and Sports Rehab alleged that, in the
Letter, Vail Health falsely asserted it knew “Winninger was involved
2 We do not consider Winninger and Sports Rehab’s single-sentence
argument that this issue should not have been decided on
summary judgment. See Woodbridge Condo. Ass’n v. Lo Viento
Blanco, LLC, 2020 COA 34, ¶ 41 n.12, aff’d, 2021 CO 56.
14
with the purported criminal act of stealing Vail Health documents
and patient files.” The Letter detailed the results of a forensic
examination of Cimino’s work computer, which included
communications that suggested he started working with Winninger
before he left Howard Head. It explained that Cimino downloaded
files from his work computer and accessed them after he left
Howard Head. The Letter noted that Winninger sent text messages
to a Vail Health employee “admit[ting] that she was aware of . . .
Cimino’s activities.”
¶ 29 The Letter concluded as follows: “To summarize, [Vail Health]
knows” that Cimino worked for Sports Rehab while employed by
Vail Health; “stole documents and patient information from” Vail
Health; “attempted to delete files”; and accessed the files while
employed by Sports Rehab. The Letter added that “Winninger ha[d]
been actively involved in these behaviors.”
¶ 30 In the summary judgment motion, Vail Health and Kirchner
argued that the Letter’s statements enjoyed a qualified privilege
and, therefore, could not support a defamation claim unless they
were made with actual malice. As discussed below, Winninger and
Sports Rehab’s Response primarily focused on privilege as it related
15
to the prelitigation Draft Complaint. The Response referenced the
Letter only briefly. First, because it asserted both were protected by
qualified privilege, the Response discussed the unfiled Draft
Complaint and Letter together arguing that summary judgment was
an improper vehicle for a privilege determination. It later referenced
the Letter in a bulleted list of allegedly disputed facts. Under a
heading titled, “Serious Doubts,” the list cited Kirchner’s deposition
testimony, stating she “did not know that Lindsay Winninger had
been involved with patient files downloaded by David Cimino” when
Vail Health sent the Letter.
¶ 31 In its 2019 Order, the district court concluded that the Letter
was subject to a qualified privilege, meaning that Winninger and
Sports Rehab had the burden of presenting evidence that Vail
Health acted with actual malice, which, according to the court, they
failed to do.
a. Preservation
¶ 32 Vail Health and Kirchner argue that Winninger and Sports
Rehab did not preserve their challenge to the district court’s actual
malice finding and that they raise arguments and cite evidence not
presented to the district court. Vail Health adds that the Response
16
failed to tie any evidence to an argument about the Letter.
Winninger and Sports Rehab’s reply brief does not cite the record to
refute this characterization. Instead, they accuse Vail Health of
“tak[ing] a hyper-technical approach to preservation.” We agree
with Kirchner and Vail Health that parties cannot make new
arguments on appeal, and we consider only the arguments and
evidence that were presented to the district court. See McDonald,
¶ 85.
b. Applicable Law
¶ 33 When reviewing the district court’s grant of summary
judgment, we apply the same law discussed supra Part III.A.
Additionally, in the defamation context, certain statements enjoy
heightened protection from liability. See Lawson v. Stow, 2014 COA
26, ¶ 18. For example, reports of possible criminal conduct to law
enforcement officials “relate[] to a matter of public concern” and
thus enjoy a qualified privilege. Id. at ¶¶ 18, 21. If a qualified
privilege applies, “the defamed party is subject to heightened
burdens of proof.” Id. at ¶ 18. The defamed party must prove
(1) that the statement was false “by clear and convincing evidence”;
(2) “that the speaker published the statement with actual malice —
17
that is, with actual knowledge that the statement was false or with
reckless disregard for whether the statement was true”; and (3) that
the defamed party sustained actual damages. Id. “A speaker acts
with reckless disregard if the speaker ‘entertain[s] serious doubts as
to the truth of the statement or act[s] with a high degree of
awareness of its probable falsity.’” Coomer v. Donald J. Trump for
President, Inc., 2024 COA 35, ¶ 147 (alterations in original) (citation
omitted).
c. Analysis
¶ 34 On appeal, Winninger and Sports Rehab acknowledge the
statements in the Letter are subject to a qualified privilege, but they
say that the court erred by concluding that there was no evidence of
actual malice. They first argue that the court “never mentioned
standard malice principles,” including that “[a]ctual malice can, and
often must, be proved by circumstantial evidence,” Coomer, ¶ 149.
They argue that the court did not consider any circumstantial
evidence, including evidence that Vail Health entertained serious
doubts about the truth of the statements in the Letter. See id. at
¶ 147.
18
¶ 35 But the district court did consider the evidence Winninger and
Sports Rehab cited as proof of serious doubts — Kirchner’s
deposition testimony that she did not know if Winninger stole files.
That the court did not explicitly cite law explaining the
circumstantial evidence or serious doubts standard is not
dispositive because, as we explain below, the court’s overall
conclusion was not erroneous.
¶ 36 Winninger and Sports Rehab next argue that the FAC’s
allegations supported an actual malice finding, including the
allegation that Vail Health made false statements to destroy
Winninger’s and Sports Rehab’s reputation and drive them out of
business. And because Vail Health and Kirchner failed to rebut this
allegation, they contend that summary judgment was improper
even if the Response failed to address the allegation. See Adickes v.
S. H. Kress & Co., 398 U.S. 144, 160 (1970) (If “the evidentiary
matter in support of the motion does not establish the absence of a
genuine issue, summary judgment must be denied even if no
opposing evidentiary matter is presented.”) (citation omitted).
¶ 37 In their Response, Winninger and Sports Rehab did not cite
the FAC’s allegation that Vail Health intended to harm their
19
business or reputation, nor did the Response contain any evidence
of ill motive purported to be specifically connected to the Letter.
See Valentine v. Mountain States Mut. Cas. Co., 252 P.3d 1182,
1188 n.4 (Colo. App. 2011) (“A party’s mere opposition to its
adversary’s request . . . does not preserve all potential avenues for
relief on appeal. We review only the specific arguments a party
pursued before the district court.”). Even assuming that the FAC’s
conclusory allegation about Vail Health’s motives was sufficient to
suggest actual malice (without also citing this allegation in the
Response), the FAC’s unsupported allegation was not dispositive of
actual malice generally or as it related to the Letter. See Harte-
Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 664-65 (1989)
(concluding that a motive to “gain[] a competitive advantage” is
insufficient to prove actual malice).
¶ 38 Furthermore, the Letter suggests that Vail Health implicated
Winninger in Cimino’s conduct not out of a desire to harm Sports
Rehab or Winninger but based on text messages Winninger sent
(cited in the Letter), including a message “admitt[ing] she was
aware of . . . Cimino’s activities.” In that text, sent during Vail
Health’s investigation of Cimino, Winninger told a Vail Health
20
employee, “You know as well as I do that everyone who leaves takes
their files and protocols off the drive.”
¶ 39 Therefore, even accepting as true the FAC’s allegations that
Vail Health harbored ill motive towards Winninger and Sports
Rehab, the FAC’s bald allegations do not support a conclusion that
Vail Health acted with actual malice when it wrote that Vail Health
“knows . . . Winninger has been actively involved in these
behaviors.” See Gonzales, ¶ 76 (“[I]ll will and improper motive . . .
are not elements of actual malice” but may provide “circumstantial
evidence of actual malice.”) (citation omitted). Instead, the evidence
suggests that this statement was based, in part, on Winninger’s
own text messages.
¶ 40 Moreover, the Response conceded that Winninger and Sports
Rehab had been “precluded from proving . . . bad faith, . . . malice
or reckless disregard of the truth,” but they did not seek relief
under C.R.C.P. 56(f). Accordingly, they cannot now argue that
allegations they failed to connect to the malice inquiry were, alone,
sufficient to prove actual malice. See Gravina Siding & Windows
Co. v. Gravina, 2022 COA 50, ¶ 71 (Courts are not obligated “to
make or develop a party’s argument.”) (citation omitted); McDonald,
21
¶ 61 (Parties opposing summary judgment must “set forth specific
facts showing a genuine issue of material fact” and “cannot rely on
the mere allegations [in the] pleadings.”) (alteration in original)
(citation omitted).
¶ 41 Winninger and Sports Rehab next contend that the district
court improperly drew inferences from the evidence against them
when they, as the nonmoving parties, were entitled to the benefit of
all reasonable inferences. See Univ. of Denver v. Doe, 2024 CO 27,
¶ 8 (“The court must resolve ‘all doubts’ in favor of the nonmoving
party and against the moving party.”) (citation omitted). They first
argue that the court “denied summary judgment [on other claims]
because material facts were disputed as to Winninger’s
involvement” but found no dispute on the claim involving the Letter.
The question before the court with respect to the Letter was not
whether there was a factual dispute about Winninger’s involvement.
Unlike other claims, the Letter involved a question of privilege —
whether the subject statement was made with actual malice. See
Lawson, ¶ 18. And in any event, for the other claims Winninger
and Sports Rehab cite, the court found factual disputes concerning
22
statements about Winninger directly stealing patient files in 2012,
not her involvement in Cimino’s 2015 conduct.
¶ 42 Next, they argue that the court relied on text messages
between Winninger and Cimino, which Vail Health did not have
when it sent the Letter. By text, Winninger asked Cimino to “email
what you took off their servers or any other info you have.” The
court found this text “demonstrate[ed] that [Winninger] knew
[Cimino] stole the patient files and yet continued to employ him.”
We thus conclude that any error in relying on this message was
harmless. See C.R.C.P. 61. The texts that Vail Health did have
when it sent the Letter, which the court also considered, similarly
suggested that Winninger knew of Cimino’s conduct and continued
to employ him. Namely, in reference to Cimino, Winninger texted a
Vail Health employee, “You know as well as I do that everyone who
leaves takes their files and protocols off the drive.”
¶ 43 Winninger and Sports Rehab contend that the court erred by
failing to explain how Winninger’s text stating that “everyone who
leaves takes their files and protocols off the drive” was evidence of
criminal theft, as alleged in the Letter. Their argument suggests
that the question before the court was whether it was substantially
23
true that downloading files from the drive amounted to criminal
theft, but the court’s inquiry with respect to the Letter related to
actual malice (i.e., whether Vail Health acted with actual malice by
implicating Winninger in Cimino’s conduct), not substantial truth.
They also contend that the court’s denial of summary judgment on
a different defamation claim meant that “[t]he court inferred
Winninger did not ‘steal’ any Vail Health files,” so it necessarily
“infer[ed] that the statements to the police were false.” But the
Letter did not state that Winninger stole Vail Health’s files, and the
2019 Order did not consider substantial truth; it denied summary
judgment on other claims based on the existence of disputed facts.
And the existence of disputed facts with respect to whether
Winninger took files does not mean that the court necessarily
inferred that the statements in the Letter were false.
¶ 44 Winninger and Sports Rehab also suggest that the court erred
by not considering statements in Winninger’s declaration that she
texted Cimino to find out what information he downloaded and
swore “she was not involved in his purported theft.” But the
Response did not cite this part of Winninger’s declaration. See
McDonald, ¶¶ 61, 85. That the declaration was attached to the
24
Response is insufficient; it was not the court’s duty to sift through
exhibits to extract arguments on the parties’ behalf. See id. at ¶ 61;
Gravina, ¶ 71. Moreover, Winninger’s 2019 declaration was
immaterial to whether statements in the 2016 Letter were made
with actual malice.
¶ 45 Finally, Winninger and Sports Rehab argue that the court’s
actual malice finding was erroneous because the Letter asserted
that Vail Health “kn[ew] . . . Winninger ha[d] been actively involved
in [Cimino’s] behavior,” while Kirchner testified that, when the
Letter was sent, she “did not know [whether] Winninger had been
involved” because Vail Health was “still trying to determine that.”
As discussed, the district court reviewed this evidence and
concluded that Vail Health’s continued investigation did not
demonstrate the existence of disputed facts as to actual malice. We
agree.
¶ 46 Whether Vail Health actually knew that Winninger was
involved in Cimino’s conduct was not a question the district court
25
needed to resolve.3 Rather, it had to determine if there was a
factual dispute about whether Vail Health made the statement with
reckless disregard such that it had “serious doubts” about the
statement’s truth or “a high degree of awareness of its probable
falsity.” Coomer, ¶ 147 (citation omitted). When Vail Health sent
the Letter, it knew Cimino worked for Sports Rehab, it had evidence
that Cimino started working for Sports Rehab before he left Howard
Head, it knew Cimino took files from Howard Head and accessed
them while he was working for Sports Rehab, and it knew
Winninger was aware that Cimino took files.
¶ 47 From this evidence, the district court properly concluded that
Vail Health and Kirchner met their initial burden and that the
burden then shifted to Winninger and Sports Rehab to show
disputed facts concerning actual malice. See McDonald, ¶ 46. And,
as explained below, the court properly held that they did not meet
this burden.
3 We reject Vail Health’s argument that “nothing in the . . . Letter
connects Winninger to Cimino’s taking of patient files” because we
“resolve ‘all doubts’ in favor of the nonmoving party,” Univ. of
Denver v. Doe, 2024 CO 27, ¶ 8 (citation omitted).
26
¶ 48 We next turn to their argument that the court ignored
evidence of (1) serious doubts; (2) a grossly inadequate
investigation; and (3) fabrication.4 We do not consider the
argument about an inadequate investigation because Winninger
and Sports Rehab did not raise it in the Response, nor do they point
us to whether or where they raised this argument to the district
court. See Valentine, 252 P.3d at 1188 n.4. We consider their
contentions about serious doubts and fabrication only within the
context of the arguments they presented to the district court. See
McDonald, ¶ 85.
¶ 49 As to evidence of serious doubts, Winninger and Sports Rehab
first cite Cimino’s declaration that he did not transfer the data that
he took to anyone else. We do not consider this evidence because
the Response did not cite this statement or any other part of
Cimino’s declaration. See Valentine, 252 P.3d at 1188 n.4. Next,
they cite Kirshner’s deposition testimony that she did not “believe
any of us kn[e]w whether Winninger was involved in the theft of
4 We do not address Winninger and Sports Rehab’s argument about
a former Vail Health employee’s 2024 trial testimony, which was not
before the district court in 2019. See McDonald v. Zions First Nat’l
Bank, N.A., 2015 COA 29, ¶¶ 61, 85.
27
patient files” and Shannon’s testimony that he never said Winninger
“stole documents from us.” They also cite Vail Health and
Kirchner’s admission that “there [was] no evidence that [Winninger]
was ever investigated or charged with a crime.” We disagree that
this evidence proves serious doubts. Kirchner’s testimony is
substantively identical to her testimony analyzed above. Shannon’s
testimony about his own statement is irrelevant to the statements
in the Letter. And whether Winninger was investigated or
criminally charged after Vail Health sent the Letter has no bearing
on whether the Letter’s statements were made with actual malice.
¶ 50 Finally, Winninger and Sports Rehab argue that the court
ignored evidence that Vail Health fabricated evidence. Their
Response generally raised this argument but not in connection with
the Letter. The motion for summary judgment stated that, “Cimino
emailed Winninger a protocol with a Howard Head logo . . . , and
Winninger advised him to modify the stolen document to make it
look like a [Sports Rehab] document.” And it cited an email that
said, “Feel free to throw the biz logo on there. Company colors are
Black, silver, orange, white.” But the email contained no
attachment. While the motion may have misrepresented the nature
28
of the email, there was no evidence that Vail Health fabricated
evidence. Asserting an unsupported argument is not evidence of
fabrication, let alone proof of actual malice.
¶ 51 Considering all the circumstances, we conclude that the
district court did not err by finding no disputed facts with respect to
whether Vail Health made the statements in the Letter with actual
malice. See McDonald, ¶¶ 45-46; Lawson, ¶ 18. Vail Health
obtained evidence from which it could reasonably infer that
Winninger was involved in Cimino’s 2015 conduct, and Winninger
and Sports Rehab did not provide evidence in their Response that
created a factual dispute about whether Vail Health knew the
statement was false, see Lawson, ¶ 18, entertained serious doubts
about its truth, or “act[ed] with a high degree of awareness” that the
statement was probably false, Coomer, ¶ 147. Indeed, the Response
admitted that Winninger and Sports Rehab had not proved actual
malice. Therefore, the district court did not err by granting
summary judgment on the claim involving the Letter.
3. DORA Letter Statements
¶ 52 As discussed, one of Winninger and Sports Rehab’s
defamation claims involved statements in a letter that Vail Health
29
sent in response to a DORA subpoena (the DORA Letter). Vail
Health and Kirchner’s motion for summary judgment argued that
the statements were absolutely privileged and therefore could not
form the basis for a defamation claim. The district court agreed,
granting summary judgment in Vail Health and Kirchner’s favor.
¶ 53 On appeal, Winninger and Sports Rehab argue that the court
erred by applying common law absolute immunity principles, rather
than statutory qualified immunity. Vail Health and Kirchner
contend that Winninger and Sports Rehab did not preserve this
argument for appeal. We agree the issue is unpreserved.
¶ 54 With respect to the DORA letter, the Response made no
argument about the difference between common law absolute
immunity and statutory qualified immunity. See Belinda A. Begley
& Robert K. Hirsch Revocable Tr. v. Ireson, 2020 COA 157, ¶ 19
(failing to “raise [an] issue in connection with the motions for
summary judgment” waives the issue on appeal). Indeed, the
opening brief acknowledges that “the [district] court and the parties
did not cite this governing statutory [qualified immunity] provision.”
Instead, the Response argued that Vail Health and Kirchner failed
to investigate the “background and genesis of the DORA letter” and
30
that someone associated with Vail Health “planted” an anonymous
complaint with DORA to trigger an investigation. Pertaining to the
DORA Letter, the Response cited no legal authority, nor did it refute
that the statements therein were privileged.
¶ 55 Because Winninger and Sports Rehab did not present to the
district court the argument now raised on appeal, the argument is
unpreserved. See Gebert v. Sears, Roebuck & Co., 2023 COA 107,
¶ 25 (“[P]reserving an argument” requires “present[ing] ‘the sum and
substance of the argument’ to the district court.”) (citation omitted).
We also reject Winninger and Sports Rehab’s argument that
preservation is effectively unnecessary because we must “resolve
issues by identifying and applying the correct law.” People v.
Fortson, 2018 COA 46M, ¶ 17 (considering a statute not expressly
cited by the parties); McLellan v. Colo. Dep’t of Hum. Servs., 2022
COA 7, ¶ 19 n.2 (considering a regulatory definition the parties
failed to raise because courts have “independent power to identify
and apply the proper construction of governing law” (quoting Kamen
v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991))).
¶ 56 These cases do not suggest that we must ignore preservation
principles. Rather, we may independently “identify and apply the
31
proper construction of governing law” only if “an issue or claim is
properly before the court.” Kamen, 500 U.S. at 99 (emphasis added).
For example, in McLellan, ¶ 19 n.2, the parties generally raised an
argument concerning the interpretation of a particular regulation
but failed to cite a definition the court considered. However, the
parties raised “the sum and substance of the argument,” Gerbert,
¶ 25 (citation omitted), so the issue was “properly before the court,”
Kamen, 500 U.S. at 99. Here, Winninger and Sports Rehab never
addressed whether the statements in the DORA Letter were
privileged, let alone which type of privilege should apply. Because
this argument is unpreserved, we do not reach its merits. See
Gerbert, ¶ 25.
4. Draft Complaint Statements
¶ 57 Winninger and Sports Rehab next argue that the court erred
by granting summary judgment for allegedly defamatory statements
in Vail Health’s Draft Complaint. Specifically, they argue that the
court erred by finding that the Draft Complaint was privileged
because Vail Health contemplated prospective litigation in good
faith. We conclude that the court did not err.
32
¶ 58 Winninger and Sports Rehab alleged that Kirchner and
Shannon showed the unfiled Draft Complaint, containing the
allegedly defamatory statements, to Steadman Clinic
representatives. In their summary judgment motion, Vail Health
and Kirchner argued that the Draft Complaint was privileged
because it related to prospective litigation contemplated in good
faith. To demonstrate good faith, they argued that the Draft
Complaint’s claims were essentially the same as the counterclaims
Vail Health later pursued. The court held that Vail Health and
Kirchner met their burden, and the burden shifted to Sports Rehab
and Winninger, who “fail[ed] to proffer evidence . . . that [the] [D]raft
[C]omplaint was not contemplated in good faith.”
¶ 59 The court considered Winninger and Sports Rehab’s
arguments that Vail Health and Kirchner acted in bad faith because
they wanted to “scare [Winninger and Sports Rehab] off” and
wanted them “out of the picture.” It found these arguments
“conclusory and without merit,” concluded that Winninger and
Sports Rehab did not meet their burden of “establishing a genuine
issue of material fact as to . . . bad faith,” and granted summary
judgment.
33
¶ 60 Winninger and Sports Rehab now challenge this
determination. Vail Health and Kirchner argue that Winninger and
Sports Rehab did not preserve this argument. While we conclude
that the argument was generally preserved, we consider only the
evidence and facts presented to the district court. See McDonald,
¶ 85.
¶ 61 In reviewing the district court’s grant of summary judgment,
we apply the same law discussed supra Part III.A. And “[t]he
applicability of the [pre]litigation privilege is a question of law that
we review de novo.” Coomer, ¶ 188. However, the prelitigation
privilege differs slightly from the privilege applicable to the Letter.
“[A] qualified litigation privilege applies to statements made as part
of the initiation of litigation.” Begley v. Ireson, 2017 COA 3, ¶ 14.
This privilege applies to prelitigation statements “(1) related to
prospective litigation [when] (2) the prospective litigation is
contemplated in good faith.” Id. at ¶ 17 (characterizing the privilege
as “absolute or qualified is beside the point”).
¶ 62 Citing Belinda A. Begley & Robert K. Hirsch Revocable Trust,
¶ 44, Winninger and Sports Rehab argue that summary judgment
was inappropriate. We disagree. As in that case, which affirmed
34
the district court’s grant of summary judgment on the same
grounds, we conclude that there was sufficient evidence for the
district court to evaluate good faith on summary judgment. See id.
at ¶¶ 46-48.
¶ 63 We next consider Winninger and Sports Rehab’s contention
that the court erred by concluding that Vail Health and Kirchner
met their initial burden of proving good faith. Winninger and
Sports Rehab argue that the mere filing of the counterclaims was
insufficient evidence of good faith.
¶ 64 In support of this contention, they point to a division of this
court’s rejection of the argument “that the filing of [a] lawsuit . . . is
enough, standing alone, to establish that [a party] contemplated the
litigation in good faith.” Id. at ¶ 43. They contend that Vail Health
and Kirchner relied solely on the fact that they filed counterclaims
to establish good faith, which the district court improperly
accepted.
¶ 65 As the division explained, commencing litigation or filing
claims is but one factor in the good faith analysis; it is not
dispositive of good faith. See id. at ¶43. It then considered other
evidence of good faith, including the party’s “timing and purpose”
35
for retaining counsel, their attempts to settle the matter, and “a
draft complaint in substantially the same form as the one he later
filed.” Id. at ¶ 45. The division concluded that this was sufficient
evidence of good faith to shift the burden to the nonmovant. Id. at
¶¶ 46-47.
¶ 66 Here, Vail Health argued to the district court that it
contemplated the litigation in good faith because (1) it filed
counterclaims; (2) the counterclaims were very similar to those
raised in the Draft Complaint, (3) it had been actively litigating the
counterclaims “for nearly two years,” and (4) Vail Health’s board of
directors retained and authorized counsel to draft the complaint.
This evidence was sufficient to shift the burden to Winninger and
Sports Rehab to present some evidence of bad faith. See id.
¶ 67 Winninger and Sports Rehab next argue that Vail Health and
Kirchner “submitted no affidavits attacking the bad faith motives
[alleged] in” the FAC. As support, they cite a decision reversing
summary judgment because the affidavits supporting a motion for
summary judgment did not prove the absence of disputed facts.
See Ginter v. Palmer & Co., 585 P.2d 583, 585 (Colo. 1978). This
does not mean that a movant must submit affidavits attacking the
36
complaint’s allegations; it merely provides that summary judgment
is improper if the movant does not meet its initial burden. Id.;
McDonald, ¶ 46. And the court properly found that Vail Health and
Kirchner met their initial burden.
¶ 68 Finally, Winninger and Sports Rehab contend that the district
court failed to consider evidence of bad faith. At the outset, we note
that their Response effectively conceded that they had not
presented sufficient evidence of bad faith. And the Response
included only conclusory allegations of bad faith, without citation or
support, that Vail Health and Kirchner “never seriously intended to
file” the Draft Complaint and merely wanted to prevent Winninger
and Sports Rehab from competing with Vail Health.
¶ 69 Their main support for this contention was that they “pleaded
that the Draft Complaint was merely a sham designed to ruin the
reputation of Winninger and Sports Rehab.” As explained,
allegations in a complaint are insufficient, alone, to “show[] a
genuine issue of material fact.” McDonald, ¶ 61 (citation omitted).
Winninger and Sports Rehab also contend that there was evidence
of bad faith because Vail Health waited a significant amount of time
after Cimino returned the files to write the Draft Complaint, and
37
Vail Health sent a cease and desist letter. We are not persuaded.
Without more, a mere delay in drafting a complaint does not
suggest bad faith. The delay alone does not prove an attempt to
“destroy [Winninger’s and Sports Rehab’s] relationship with
Steadman and quash competition.”
¶ 70 We also reject Winninger and Sports Rehab’s argument that
Vail Health and Kirchner acted in bad faith because, when Kirchner
showed the Draft Complaint to Steadman employees, she “still did
not know if the allegations were true.” See Cardtoons, L.C. v. Major
League Baseball Players Ass’n, 335 F.3d 1161, 1166 (10th Cir.
2003) (considering a similar good faith standard and noting that “a
good faith belief in the truth of the communication” is unnecessary)
(citation omitted). Finally, we do not consider Winninger and
Sports Rehab’s exhibit from the 2024 trial, as it was not before the
district court in 2019. See McDonald, ¶ 85.
¶ 71 In sum, we conclude that the district court did not err by
granting summary judgment concerning the statements in the Draft
Complaint because, when the burden shifted to Winninger and
Sports Rehab, they failed to “establish . . . a triable issue of fact,”
McDonald, ¶ 46 (citation omitted), as to whether Vail Health and
38
Kirchner contemplated prospective litigation in good faith, see
Begley, ¶ 17.
5. Kirchner’s Summary Judgment
¶ 72 Next, Winninger and Sports Rehab argue that the district
court erred by dismissing the defamation claims against Kirchner in
the 2019 Order for statements made by others when Kirchner “was
involved in, sanctioned, or directed” them. The court found that
Kirchner was not liable for the actions of Vail Health’s employees
and agents. And while Winninger and Sports Rehab alleged that
Kirchner “participated directly” — because Kirchner knew
Winninger hired Cimino, was aware of Cimino’s contract with Vail
Health, and approved the letter to Vail police — the court found
that these general actions were corporate activities and did not
establish personal liability. As a result, the court dismissed the
claims asserted against Kirchner individually.
¶ 73 On appeal Winninger and Sports Rehab argue the court erred
by relying on Meyer v. Holley, 537 U.S. 280 (2003), rather than
Colorado law, and that disputed facts existed concerning Kirchner’s
involvement in the third-party statements. Kirchner responds that
no evidence was presented to the district court purporting to show
39
that she was directly involved in making, or authorizing others to
make, defamatory statements, and therefore summary judgment
was appropriate.
¶ 74 In reviewing the district court’s grant of summary judgment,
we apply the same law discussed supra Part III.A. Further, “[t]o be
found personally liable to third persons for a tort, the officer of a
corporation must have participated in the tort.” Hoang v. Arbess,
80 P.3d 863, 868 (Colo. App. 2003). The exact degree of
participation required can vary, but, “[a]t a minimum, personal
liability attaches to a defendant who was directly involved in the
conduct through conception or authorization.” Id. Other sufficient
involvement can include “active participation or cooperation,
specific direction, or sanction of the conduct.” Id. Whether a
corporate officer “approved of, directed, actively participated in, or
cooperated” in the tort is a question of fact. Id.
¶ 75 The court’s 2019 Order dismissed claims 4-8, 10, 12-18, 20,
and 23-24 entirely. It dismissed claims 6-16 and 18-24, involving
statements made by others, as against Kirchner individually. Of
the dismissed claims against Kirchner, the district court concluded
that, despite the existence of factual disputes in claims 9, 11, 19,
40
and 21-22, Kirchner could not be held liable for allegedly
defamatory statements that she did not make. Accordingly, we
consider only the latter claims, since, with respect to the entirely
dismissed claims involving others’ statements, the court found no
disputed material facts and, therefore, that those claims failed as a
matter of law. And we have already concluded that the various
claims asserted against Kirchner based on the Letter, the DORA
Letter, and the Draft Complaint, also failed.
¶ 76 Claims 9, 11, and 19 focused on alleged statements Shannon
made to Dan Drawbaugh (the Steadman Clinic’s CEO) — in the
summer of 2016, December 2016, and January 2017 — that
“Winninger had stolen thousands of patient files from Vail Health.”
Claim 21 involved allegations that, in February 2017, Shannon
spoke to “Al Perkins . . . of the Steadman Philippon Research
Institute, and told him that Winninger had stolen 3,000 patient files
from Vail Health.” Finally, claim 22 alleged that, “[i]n about
January or February 2017, Nicholas Brown spoke to Kelly Adair of
[t]he Steadman Clinic and stated that Winninger was involved in
stealing patient files from Vail Health.”
41
¶ 77 Winninger and Sports Rehab’s Response highlighted portions
of Kirchner’s deposition testimony that alleged to show her
involvement in the defamatory statements — but none of them
related to the statements attributed to Shannon and Brown
highlighted above. For example, they note that “Kirchner knew of
and monitored Winninger and Sports Rehab’s taking out a lease in
the Four Season’s hotel”; that she “read and was aware of Cimino’s
employment agreement with Vail Health”; and that she “carefully
reviewed, approved and authorized the defamatory letter that Vail
Health’s attorney sent to” Vail police. But these general statements
do not establish that a genuine dispute of fact existed concerning
whether Kirchner directed, authorized, or participated in the alleged
defamatory statements made by Shannon and Brown. See
McDonald, ¶ 61.
¶ 78 Further, Winninger and Sports Rehab’s factual support offered
on appeal — primarily portions of Kirchner’s and Drawbaugh’s
depositions — does not demonstrate Kirchner’s direct involvement
in allegedly defamatory statements. Kirchner testified that she
reviewed the Letter, authorized the Draft Complaint, and showed
the Draft Complaint to Drawbaugh, but little else speaks to her
42
direct involvement or participation in the alleged defamatory
statements made by others. Winninger and Sports Rehab relied
solely on this deposition testimony for factual support in their
Response.
¶ 79 As for Drawbaugh’s deposition, he testified that he learned
from Kirchner that Winninger “could have been involved” in the
theft of patient files around January 2016 but believed the matter
was still being investigated. He also confirmed that Kirchner
showed him the Draft Complaint around January 2017.
Drawbaugh also vaguely testified that sometime before August 2016
Kirchner “indicated that [Winninger] was involved in the theft.” But
he never said that Kirchner participated in or directed defamatory
statements made by others.
¶ 80 Winninger and Sports Rehab’s reply brief contends that the
FAC’s allegations satisfied their burden because Kirchner failed to
rebut them with affidavits or other proof, much like their argument
concerning the unfiled Draft Complaint as discussed supra Part
III.B.4. See Ginter, 585 P.2d at 585. Acknowledging Kirchner’s
assertion that corporate officers cannot be held liable for the
conduct of the corporation’s employees, Winninger and Sports
43
Rehab contend that this argument was insufficient to rebut the
FAC’s allegations and merit summary judgment. Setting aside that
this is a different argument than that raised in the opening brief,
see Battle N., LLC v. Sensible Hous. Co., 2015 COA 83, ¶ 41 (we do
not consider arguments raised for the first time in a reply brief),
Kirchner’s argument was that she could not be held liable for the
statements based solely on her employment as Vail Health’s CEO.
And, as discussed, the previously mentioned depositions (and other
materials properly before the court) support the contention that
Kirchner was not directly involved in the statements made by
others. Conversely, Winninger and Sports Rehab’s exhibits and
depositions do not convey any genuine dispute of material fact on
this point. Therefore, without evidence of Kirchner’s involvement or
participation, she could not, as a matter of law, be held personally
liable for the allegedly defamatory statements she did not make;
thus, summary judgment was appropriate. See Arbess, 80 P.3d at
868; see also Brown v. Silvern, 45 P.3d 749, 751 (Colo. App. 2001)
(“[S]ummary judgment is proper only when the pleadings, affidavits,
depositions, or admissions show that there is no genuine issue as
44
to any material fact and that the moving party is entitled to
judgment as a matter of law.”).
C. Shannon and Brown’s Costs Award
¶ 81 In the SAC, Winninger and Sports Rehab sought to add
Shannon and Brown as parties. However, the court rejected the
SAC, so Shannon and Brown were not parties as of May 28, 2019.
Nonetheless, in August 2019, Shannon and Brown moved to be
dismissed as parties, which the district court granted. Shannon
and Brown later requested costs pursuant to section 13-16-107,
C.R.S. 2024, which the court also granted. Winninger and Sports
Rehab contend that this award was erroneous because Shannon
and Brown were never parties and therefore could not be dismissed
from the case. We agree that the costs award was erroneous.
¶ 82 We review a district court’s decision to award costs for an
abuse of discretion. Anderson v. Pursell, 244 P.3d 1188, 1193
(Colo. 2010). “A [district] court abuses its discretion when its ruling
is ‘manifestly arbitrary, unreasonable, or unfair,’ or when it
misapplies the law.” Rains v. Barber, 2018 CO 61, ¶ 8 (citation
omitted). Section 13-16-107 provides that, “[i]f, in any action,
judgment upon motion to dismiss by either party . . . is given
45
against the plaintiff, the defendant shall recover costs against the
plaintiff.”
¶ 83 Shannon and Brown contend that they are entitled to costs
under this section because they became parties when the district
court initially accepted the SAC. We agree that Shannon and
Brown were parties from March 22, 2019, when the SAC was filed,
until May 28, 2019, when the court rejected the SAC. However, the
court’s May 28 order effectively removed Shannon and Brown as
parties by rendering the SAC (and any claims against Shannon and
Brown) inoperative. See Laleh v. Johnson, 2016 COA 4, ¶ 50
(“[Defendant] Tabrizi was dismissed as a party . . . as a part of the
trial court’s February 2014 order which dismissed with prejudice all
claims.”), aff’d, 2017 CO 93.
¶ 84 Therefore, when Shannon and Brown moved for their
dismissal from the case in August 2019, they were no longer
parties. But the district court did not consider that fact when it
granted their motion to dismiss or when it awarded them costs.
Instead, the court noted that the parties’ status report failed to
assert any claims against Shannon or Brown. However, Winninger
and Sports Rehab could not assert such claim because the court
46
rejected the SAC. Thus, the court incorrectly determined that
Winninger and Sports Rehab voluntarily dismissed Shannon and
Brown by failing to include claims against them in the status
report.
¶ 85 Because Shannon and Brown had already been dismissed by
the court’s order rescinding its grant of leave to file the SAC,
Shannon and Brown’s subsequent motion to dismiss was
unnecessary and inconsequential. See § 13-16-107. Moreover,
Shannon and Brown were not prevailing parties because they did
not “prevail[] on a significant issue in the litigation [or] derive[] . . .
benefits sought by the litigation.” Gonzales v. Windlan, 2014 COA
176, ¶ 50; see also Scott v. Scott, 2018 COA 25, ¶ 62 (concluding
that a party was not entitled to costs under section 13-16-107
because she was no longer a prevailing party).
¶ 86 Accordingly, we conclude that the district court abused its
discretion by awarding costs to Shannon and Brown, and we vacate
the cost award. See Scott, ¶ 63.
D. The 2021 Order
¶ 87 Winninger and Sports Rehab next argue that the district court
erred by granting summary judgment in Vail Health and Kirchner’s
47
favor in November 2021, which dismissed the remaining defamation
and tortious interference claims. In the 2021 Order, the eight
remaining defamation claims were based on a statement that
Winninger “kn[ew] about and participated in downloading Vail
Health patient files,” a statement that she “was involved in stealing
patient files,” and different variations of statements that Winninger
stole Vail Health’s patient files.
¶ 88 Because, by then, there was evidence that when Winninger left
Howard Head in 2012, she retained company files, Vail Health and
Kirchner asserted the statements were substantially true as a
defense to the defamation claims. Winninger and Sports Rehab
argued that the files belonged to a third party, Rehabilitation &
Performance Center at Vail, LLC (RPC), not Vail Health. However, a
services agreement between RPC and Vail Health provided that all
patients treated at Howard Head were considered Vail Health
patients. Therefore, the court concluded that “the patient files at
issue c[ould] properly be considered as ‘Vail Health patient files’ or
those ‘from Vail Health.’”
¶ 89 Next the district court considered whether the statements that
Winninger stole patient files were substantially true. Looking to the
48
common meaning of the word, it used the dictionary definition of
“steal”: “to take or appropriate without right or leave and with intent
to keep or make use of wrongfully.” Merriam-Webster Dictionary,
https://perma.cc/H4AV-XPGX. The court noted that it was
“undisputed that when Winninger left . . . Howard Head in 2012,
she downloaded her personal folder from the shared drive, copied it
onto her USB drive,” and, as a result, retained some files that
contained PHI. It also cited Winninger’s deposition testimony
admitting “that the contents of her personal folder were not hers.”
¶ 90 The court then considered Winninger and Sports Rehab’s
argument that Winninger believed she was allowed to take the files,
but it ultimately concluded that there was no evidence “that
Winninger had the right or leave to take PHI.” It also concluded
that there was no dispute as to whether Winninger intended to keep
the files because she downloaded them onto a USB drive that she
took with her when she left Howard Head. Therefore, the court
concluded that the statements that Winninger stole patient files
from Vail Health were substantially true. Based on this conclusion,
it also found the statements that Winninger knew about,
49
participated in, and was involved in stealing the files were
substantially true.
¶ 91 On appeal, Winninger and Sports Rehab contend that (1) the
court erred by finding it was substantially true that Winninger stole
Vail Health’s files, adding that the defamatory statements originally
related to Cimino’s 2015 conduct and that the court erroneously
considered Winninger’s 2012 conduct (which, as mentioned, was
not discovered until after the 2019 Order issued); and (2) the 2024
jury verdict extinguished the 2021 Order.
1. Preservation
¶ 92 Vail Health and Kirchner5 note that, while Winninger and
Sports Rehab generally opposed the substantial truth defense, they
did not preserve the argument that the district court erred by
considering Winninger’s 2012 conduct. Vail Health and Kirchner
also contend the argument that the 2024 verdict extinguished the
2021 Order was not preserved because Winninger and Sports
5 Although the answer brief lists Kirchner, Shannon, and Brown as
appellees, Shannon and Brown were parties to the case only briefly,
as discussed in more detail supra Part III.C. Therefore, we
primarily attribute the answer brief’s arguments solely to Kirchner.
50
Rehab failed to seek modification of the 2021 Order before the jury
rendered its verdict.
¶ 93 While the court’s consideration of Winninger’s 2012 conduct is
not the primary focus of Winninger and Sports Rehab’s appeal of
the 2021 Order, their contention is that it affected the substantial
truth of the statements. We conclude that Winninger and Sports
Rehab did not preserve the argument that the court’s 2021 Order
improperly considered Winninger’s 2012 conduct. Winninger and
Sports Rehab’s opening brief fails to include citations pointing to
where in the record this argument was brought to the district
court’s attention. See Franklin D. Azar & Assocs. P.C. v. Ngo, 2024
COA 99, ¶ 51 (“Generally, to preserve an issue for appeal, the issue
must be brought to the trial court’s attention and the court must be
given the opportunity to rule on it.”); see also Valentine, 252 P.3d at
1188 n.4. Winninger and Sports Rehab’s original and revised
responses opposing summary judgment never raised this issue,
despite explicitly discussing Winninger’s 2012 conduct. And in the
reply brief Winninger and Sports Rehab also fail to identify where
they preserved the issue, instead directing us to over 2,000 pages of
the record and the entire revised response opposing summary
51
judgment along with its exhibits. See C.A.R. 28(a)(7)(A) (Opening
briefs must indicate “whether the issue was preserved, and if
preserved, the precise location in the record where the issue was
raised and where the court ruled.”) (emphasis added); see also
Black v. Black, 2018 COA 7, ¶ 67. Such general assertions are
insufficient to demonstrate preservation, nor will we scour the
record to verify whether this issue was preserved elsewhere. See
C.A.R. 28(a)(7)(A); see also Black, ¶ 67. Therefore, we do not reach
the merits of this contention.
¶ 94 Whether Winninger and Sports Rehab failed to preserve the
argument that the 2024 verdict extinguished the 2021 Order
because they never sought to amend it is a different question.
Neither the parties nor the court moved to certify the 2021 Order as
final pursuant to C.R.C.P. 54(b). Thus, because there were still
unresolved counterclaims, the 2021 Order could not be appealed
and could be revised “at any time before the entry of judgment.”
C.R.C.P. 54(b); see also Musick v. Woznicki, 136 P.3d 244, 246
(Colo. 2006) (“[A] trial court ruling that is subject to C.R.C.P. 54(b)
certification but is not yet certified” is not “a final judgment for the
purposes of appeal.”). We reject the argument that a motion for
52
reconsideration or a C.R.C.P. 59 motion is a precondition to seeking
appellate review of a final judgment. See C.R.C.P. 59(b) (“Filing of a
motion for post-trial relief shall not be a condition precedent to
appeal or cross-appeal, nor shall filing of such motion limit the
issues that may be raised on appeal.”); cf. Morales v. Golston, 141
P.3d 901, 905 (Colo. App. 2005) (A party need not “object to the
inconsistencies in a jury’s answers to a special verdict before the
jury is discharged in order to . . . challenge the inconsistencies in a
subsequent motion or on appeal.”).
2. Whether the 2024 Verdict Extinguished the 2021 Order and
Substantial Truth
¶ 95 Winninger and Sports Rehab ask us to vacate the 2021 Order
in light of the jury’s 2024 verdict. They contend that — because the
jury rejected the conversion and misappropriation of trade secret
counterclaims — the verdict established that it was not
substantially true that Winninger stole Vail Health’s patient files.
They also contend that the 2021 Order “merged into” and was
“extinguished” by the 2024 jury verdict and final judgment.
¶ 96 Vail Health responds that the verdict and the 2021 Order were
not inconsistent because (1) the facts pertinent to the conversion
53
counterclaim differed from those applicable to the defamation
claims, and (2) the jury found that Winninger did take patient files
but merely concluded that Vail Health did not suffer damages as a
result. Kirchner adds that it would be inappropriate to set aside
the 2021 Order based on a verdict from a proceeding to which she
was no longer a party. We first conclude that the 2024 verdict did
not affect the 2021 Order because the two judgments do not
conflict.
¶ 97 In the 2021 Order, the court determined that there was no
genuine dispute that — in 2012 when she left Howard Head —
Winninger downloaded files, which included statutorily protected
PHI, from Vail Health’s shared drive to a USB drive without the
right to do so and intended to keep them. Therefore, looking to the
dictionary definition of “steal,” it found the statements that
Winninger “stole” the Vail Health files were substantially true.
¶ 98 By contrast — in the 2024 verdicts — the jury determined, in
relevant part, that (1) Winninger did not misappropriate the
documents that Cimino took in 2015; (2) Winninger and Cimino did
not agree to misappropriate Vail Health’s trade secrets;
(3) Winninger did interfere with Cimino and Vail Health’s contract
54
but that the interference did not cause Vail Health damages; and
(4) Winninger took documents from Vail Health’s shared drive in
2012 but did not “exercise unauthorized dominion or ownership”
over the documents. Moreover, the jury instructions made clear
that the counterclaims’ allegations related primarily to Cimino’s
2015 conduct — a set of allegations discrete from Winninger’s 2012
conduct, which, as the court’s 2021 Order found, was undisputed.
Only the conversion claim was explicitly related to Winninger’s 2012
conduct.
¶ 99 Comparing the jury’s 2024 verdict with the 2021 Order shows
that the two judgments do not necessarily conflict. Indeed, in both
instances, the court and the jury found that Winninger took Vail
Health’s files in 2012. Therefore, the 2024 verdict does not
“extinguish” the 2021 Order. Furthermore, the jury’s conversion
verdict related to an entirely different legal context and applied
different legal standards than the 2021 Order. And we cannot
presume to know the jury’s exact reasoning for reaching its
conversion verdict — all we can know for sure is that the jurors
agreed that Winninger took the files.
55
¶ 100 Winninger essentially asks us to conclude that the factual and
legal issues presented and decided in the 2021 Order are identical
to those resolved by the jury’s verdict on the conversion claim. But
whether Winninger exercised unauthorized dominion or ownership
over the files in the conversion context does not necessarily affect
whether it was substantially true that Winninger stole Vail Health’s
files in the defamation claim context — which, as detailed below,
depends on whether an average reader would understand the
statements to be substantially true. We therefore decline to disturb
the court’s 2021 Order because it is not in conflict with the jury’s
2024 verdict, and we reject Vail Health’s argument that the
conversion judgment entered on the 2024 verdict extinguished the
grant of summary judgment in the 2021 Order. Cf. Morales, 141
P.3d at 906 (“A jury verdict will not be reversed for inconsistency if
a reading of the record reveals any basis for the verdict. . . . [I]f
there is a view of the case that makes the jury’s answers consistent,
they must be resolved in that way.”).
¶ 101 The court also did not err in finding that the statements
alleging that Winninger stole Vail Health’s files, when considering
the plain meaning of “steal,” were substantially true. Winninger
56
and Sports Rehab contend that there were disputed material facts
precluding summary judgment, including those related to the
ownership of the files and whether Winninger had the “right,
knowledge, and intent to take and keep the files.” But the court
considered the issue of ownership of the files that Winninger took in
2012 and correctly found that an average or lay reader would
understand that Vail Health’s files referred to “files created for
patients for services rendered in a Vail Health facility.” This is
particularly true considering the services agreement between RPC
and Vail Health providing that all patients treated at Howard Head
were considered Vail Health patients. But what mattered for
Winninger and Sports Rehab’s remaining defamation claims was
how an average reader would interpret the statement. See Fry v.
Lee, 2013 COA 100, ¶¶ 20, 22-23 (“Whether a statement is
defamatory is a question of law,” but “[s]ubstantial truth is an
absolute defense to a defamation claim”; thus, “[i]n determining
whether a challenged statement is substantially true, the inquiry
should focus on how an average reader would read the statement.”).
The court was correct to find that there was no material dispute of
fact over the ownership of the files preventing summary judgment.
57
¶ 102 As for Winninger’s right, intent, and knowledge when taking
the files, the court noted that (while Winninger testified that she
believed she could take the files) there was no genuine dispute over
the fact that Winninger did not have the right to take Vail Health’s
files, particularly those containing PHI. The court also correctly
found that an average reader would understand that Winninger’s
downloading files from the shared drive to her USB drive evidenced
that she took Vail Health’s files with an intent to keep them. See id.
This was especially true considering the dictionary definition of
“steal” — which does not incorporate a specific knowledge
requirement. See Merriam-Webster Dictionary,
https://perma.cc/H4AV-XPGX; see also Fry, ¶ 30 (“To determine
the plain and ordinary meanings of words in the context of
defamation claims, Colorado courts commonly and properly rely on
lay dictionary definitions.”).
¶ 103 As the court explained, the dictionary definition of “steal” only
requires that Winninger took the files with an intent to keep them.
Therefore, as a matter of law, whether Winninger took the files
knowingly was immaterial to determining whether the statements
that she stole Vail Health files were substantially true for
58
defamation purposes. In sum, the record supports the district
court’s finding that it was substantially true that Winninger stole
files from Vail Health in 2012 by downloading them to a USB drive.
A conclusion that, again, the jury did not necessarily disagree with
in its 2024 verdict.
¶ 104 As a result, the district court properly disposed of the
defamation and ancillary tortious interference claims in the 2021
Order because it was substantially true that Winninger stole Vail
Health’s files in 2012.
E. Appellate Attorney Fees
¶ 105 Kirchner, Shannon, and Brown request appellate attorney fees
and costs. We deny this request.
1. Applicable Law
¶ 106 Courts must award “reasonable attorney fees against any . . .
party who has brought . . . . a civil action . . . that the court
determines lacked substantial justification.” § 13-17-102(2), C.R.S.
2024. This provision also applies to appeals. Id. An action lacks
substantial justification when it is “substantially frivolous,
substantially groundless, or substantially vexatious.” § 13-17-
102(9)(a). Appeals may be frivolous as filed or as argued. Castillo v.
59
Koppes-Conway, 148 P.3d 289, 292 (Colo. App. 2006). An appeal is
frivolous as filed when the court’s judgment “was so plainly correct
and the legal authority contrary to [the] appellant’s position so clear
that there is . . . no appealable issue.” Id. (citation omitted). An
appeal is frivolous as argued when, even if there are genuinely
appealable issues, the appellant committed misconduct in arguing
the appeal. Id.
¶ 107 Additionally, “[s]tandards for determining whether an appeal is
frivolous should be directed toward penalizing egregious conduct
without deterring a lawyer from vigorously asserting his client’s
rights.” Good Life Colo., LLC v. WLCO, LLC, 2025 COA 8M, ¶ 106
(quoting Mission Denver Co. v. Pierson, 674 P.2d 363, 365 (Colo.
1984)). And the fact that a party does not prevail does not make an
appeal frivolous; “a lawyer may present a supportable argument
which is extremely unlikely to prevail on appeal.” Bocian v. Owners
Ins. Co., 2020 COA 98, ¶ 88 (quoting Pierson, 674 P.2d at 365).
¶ 108 When a party requests appellate attorney fees, its principal
brief must include a specific request. C.A.R. 39.1. The request
must be under a separate heading and “explain the legal and
60
factual basis for an award of attorney fees.” Id. Citing this rule,
without providing further legal justification, is insufficient. Id.
2. Analysis
¶ 109 Kirchner, Shannon, and Brown argue that Winninger and
Sports Rehab’s appeal is frivolous, and therefore, they are entitled
to their reasonable appellate attorney fees. They contend that
Winninger and Sports Rehab appealed the court’s grants of
summary judgment for defamation claims when there was “no
evidence [that] any such [defamatory] statement was made.” They
also contend that the appeal is frivolous because more arguments
asserted on appeal were unpreserved than preserved.
¶ 110 We first note that Kirchner and Vail Health also requested
attorney fees in the district court, arguing that Winninger and
Sports Rehab’s claims were frivolous. The district court concluded
that — while Winninger and Sports Rehab’s claims were
dismissed — the claims did not “lack[] substantial justification”
under section 13-17-102(2) because they were good faith arguments
based on Kirchner and Vail Health’s conduct. We similarly
conclude that, although Winninger and Sports Rehab did not
61
entirely prevail on appeal, this alone does not render the appeal
frivolous. See Bocian, ¶ 88.
¶ 111 Next, we reject Kirchner and Vail Health’s argument that this
appeal is frivolous because there was no evidence of the allegedly
defamatory statements. None of the issues raised on appeal require
us to determine whether there was evidence that the challenged
defamatory statements were made. Further, we do not conclude
that the legal authority contrary to Winninger and Sports Rehab’s
arguments on appeal was so clearly contrary to their arguments
that there were no truly appealable issues. See Castillo, 148 P.3d at
292. We also identify no misconduct on Winninger’s or Sports
Rehab’s part in arguing the appeal. See id. We therefore hold the
appeal is not frivolous as filed or as argued. See id.
¶ 112 Additionally, because we concluded that only one issue on
appeal was entirely unpreserved, we also reject Kirchner, Shannon,
and Brown’s argument that the appeal is frivolous because more
arguments were unpreserved than preserved.
¶ 113 Lastly, we turn to the issue of costs. Kirchner, Shannon, and
Brown request appellate costs “since [costs] were granted in the
district court.” While they cite C.A.R. 39.1, they cite no additional
62
legal justification in their request for costs on appeal. Rather, they
cite only to authorities discussing attorney fees awards for frivolous
appeals. Therefore, we do not consider their request for appellate
costs.
IV. Vail Health’s Cross-Appeal
¶ 114 Vail Health’s cross-appeal challenges the district court’s
refusal to give a jury instruction allegedly relevant to its conversion
claim. We first discuss the challenged instruction and then address
whether the court properly refused the instruction.
A. Additional Background
¶ 115 As mentioned, several of Vail Health’s counterclaims
proceeded to trial in 2024, including the conversion claim against
Winninger, individually. Vail Health asked the court to instruct the
jury that taking copies of intellectual property (IP) may support a
claim for conversion and submitted a proposed instruction. In
response to the court’s inquiry about the instruction’s necessity,
Vail Health responded that the instruction was consistent with the
law. Winninger’s counsel objected, noting that the case law made
clear that taking copies of IP does not support a conversion claim.
63
¶ 116 Vail Health’s counsel expressed concerns that, in closing
arguments, Vail Health would argue that taking copies of IP
supported the conversion claim, Winninger’s counsel would argue
the opposite, and the jury would be confused. Winninger’s counsel
then requested an instruction stating that “taking copies of [IP] may
not support a claim for conversion.” The following exchange
ensued:
[Vail Health’s Counsel]: I know but Judge
Granger . . . already ruled in this case about
this particular issue on summary judgement
[sic].
[Court]: . . . [T]his is the law of the case. . . . I
don’t think this instruction needs to be given.
[Winninger’s Counsel]: No, I agree.
[Court]: . . . I don’t think that . . . permits you
to . . . argue [that] the law in Colorado is that
even if everything they say is true, you . . .
can’t win by taking copies of [IP] . . . .
[Vail Health’s Counsel]: Well, then they can’t
argue that taking copies . . . of [IP] may
support a claim.
[Winninger’s Counsel]: That’s fine as long as
we’re both on the same page.
Winninger’s counsel then argued that there had to be deprivation of
property to support a conversion claim and that there had been no
64
deprivation here because the IP is “digital property [that] can’t be
deleted.” Vail Health’s counsel disagreed, arguing, “[N]ot under
Scott v. Scott. . . . [T]hat is not the law.” The discussion concluded
as follows:
[Court]: I don’t think this instruction is
necessary, but . . . you can argue . . . they
didn’t exercise dominion . . . [or] control. It
was still on their . . . computer. And you could
argue they took it — they exercised dominion
of control. They downloaded off our . . .
computer, they had it. What nobody can say
is . . . taking copies of [IP] by law supports a
claim of conversion. It’s a fact driven issue.
And you can’t say by law in Colorado, taking
copies of [IP] is not enough.
[Vail Health’s Counsel]: We’re in agreement.
[Court]: It’s a conversion claim.
¶ 117 Based on the conversion verdict form, the jury answered that
(1) Vail Health owned the documents Winninger took, and
(2) Winninger did not exercise unauthorized dominion or ownership
over those documents. Vail Health now challenges the jury’s
conversion verdict on the ground that the court refused to instruct
the jury that taking copies of IP supports a conversion claim.
65
B. Standard of Review and Applicable Law
¶ 118 District courts have a duty to correctly instruct juries on all
matters of law. People in Interest of J.G., 2016 CO 39, ¶ 33;
Martinez v. Cast, LLC, 2025 COA 32, ¶ 25. We review de novo
whether a particular jury instruction correctly stated the law,
examining whether the instructions, as a whole, accurately
informed the jury of the governing law. Martinez, ¶ 25; J.G., ¶ 33.
If the instructions properly inform the jury of the law, a district
court has broad discretion to determine the form and style of the
instructions. J.G., ¶ 33. Therefore, we review a district court’s
decision to give or reject a particular jury instruction for an abuse
of discretion. Id. A district court’s ruling on jury instructions is an
abuse of discretion only when the ruling “results in a misstatement
of the law or is manifestly arbitrary, unreasonable, or unfair.” Id.
Instructional error is harmless unless it prejudiced a party’s
substantial rights. Martinez, ¶ 25.
¶ 119 “Conversion is any distinct, unauthorized act of dominion or
ownership exercised by one person over personal property belonging
to another.” Mason v. Farm Credit of S. Colo., ACA, 2018 CO 46,
¶ 29 (alteration and citation omitted). Colorado conversion law is
66
consistent with section 222A of the Second Restatement of Torts.
See Restatement (Second) of Torts §§ 222A, 228 (Am. L. Inst. 1965);
Md. Cas. Co. v. Messina, 874 P.2d 1058, 1065-66 (Colo. 1994). The
intentional exercise of dominion or control over an item must “so
seriously interfere[] with the right of another to control it that the
actor may justly be required to pay the other the full value of the
[item].” Messina, 874 P.2d at 1065-66 (quoting Restatement
(Second) of Torts § 222A(1)).
In determining the seriousness of the
interference and the justice of requiring the
actor to pay the full value, the following factors
are important:
(a) the extent and duration of the actor’s
exercise of dominion or control;
(b) the actor’s intent to assert a right in fact
inconsistent with the other’s right of control;
(c) the actor’s good faith;
(d) the extent and duration of the resulting
interference with the other’s right of control;
(e) the harm done to the [item];
(f) the inconvenience and expense caused to
the other.
Id. (quoting Restatement (Second) of Torts § 222A(2)(a)-(f)).
“[W]hether the actor’s interference with the owner’s property is
67
serious enough to constitute a conversion of the property is usually
one of degree and is a question for the finder of fact.” Id. (citation
omitted).
C. Analysis
¶ 120 The referenced exchange between Vail Health’s counsel and
the court concerning the instruction on copies of IP shows that the
parties’ counsel agreed with the court’s proposed solution. When
Winninger’s counsel suggested that she should get a contrary
instruction, the court offered to allow both parties to argue, as a
factual matter, about Winninger taking copies of the IP; they
agreed. Vail Health’s counsel clearly said, “We’re in agreement.” So
while Vail Health objected before the jury instructions were
finalized, see C.R.C.P. 51; Bear Valley Church of Christ v. DeBose,
928 P.2d 1315, 1330 (Colo. 1996), it followed its objection with
agreement to the court’s compromise, see Horton v. Suthers, 43
P.3d 611, 618-19 (Colo. 2002) (a party may not later complain
about an action it asked the trial court to take). But see Silva v.
Wilcox, 223 P.3d 127, 134 (Colo. App. 2009) (a general objection in
the context of parties’ continuing dispute after a specific objection
was sufficient to allow review).
68
¶ 121 In any event, even if we concluded that counsel preserved the
issue by proffering the rejected instruction, the court committed no
reversible error because the jury was properly instructed on the
elements of conversion. See I.M.A., Inc. v. Rocky Mountain Airways,
Inc., 713 P.2d 882, 892-93 (Colo. 1986) (when the jury is properly
instructed and its findings have record support, those findings are
binding on appeal). Instruction Nos. 41 and 42 were consistent
with Colorado conversion law.6 Underwood v. Dillon Cos., 936 P.2d
612, 615 (Colo. App. 1997) (agreeing that although the challenged
instructions tracked applicable law, it was not reversible error to
6 Instruction No. 41 read, in relevant part, as follows:
The conversion claim involves allegations by
Vail Health that Lindsay Winninger took
certain materials from the Howard Head
Sports Medicine shared drive when she left
RPC-Vail’s employment in spring 2012. For
Vail Health to recover from Ms. Winninger on
its claim of conversion of personal property,
you must find that all the following to have
been proved by a preponderance of the
evidence: (1) Vail Health owned the documents
taken by Ms. Winninger; (2) Ms. Winninger
exercised unauthorized dominion or ownership
over the documents when she took those
documents; and (3) Vail Health did not consent
to the interference.
69
refuse them when the instructions otherwise correctly advised the
jury).
¶ 122 Both parties repeatedly asked about what Cimino and
Winninger took, what they intended to take, how the documents
were used, and the impact it had on Vail Health.
¶ 123 Vail Health’s argument on appeal relies heavily on the jury’s
third question, posed mid-deliberations: “Is ‘possession’ of a doc
‘ownership’ in the law in this case? What if the doc is a copy, not
an original? Does the definition of possession ownership or
[undecipherable]?” The court invited the parties to examine the
jury’s question, adding, “I almost think we have to give them an
unsatisfactory answer to a degree, to let them know that these are
the instructions on the law . . . they’re pretty good instructions . . .
they’re complicated. So I think . . . we’ve got to send some message
that ‘These are the instructions. Read them.’”
¶ 124 The court next proposed the following written response: “As
[s]tated in Instruction Number 15, these instructions contain the
law that you must use in deciding this case. We cannot answer
factual questions or provide additional legal definitions.”
70
¶ 125 The court further indicated it was willing to modify its
proposed response to Jury Question No. 2, concerning the terms
“dominion” and “ownership” of documents. As to Jury Question
No. 3, Vail Health’s counsel specifically responded, “I don’t think
there is anything else we can do.”
¶ 126 Given this record, Vail Health’s reliance on Jury Question
No. 3 as support for its challenge to the rejected instruction on
copies of IP is unavailing. See Horton, 43 P.3d at 618-19. When
the court answered the jury’s question by responding that all the
applicable law had been provided and that it could not “answer
factual questions or provide additional definitions,” neither party
objected, and the jury did not ask follow-up questions. See id.
Accordingly, we conclude the jury had sufficient and correct
instructions to render its verdict. See DuPont v. Preston, 9 P.3d
1193, 1200 (Colo. App. 2000) (we presume the jury understood and
followed the district court’s instructions), aff’d on other grounds, 35
P.3d 433 (Colo. 2001). The jury’s question provided no basis to
infer that the lack of an instruction specific to copies of documents,
IP, or data drove its conversion verdict. Cf. Clough v. Williams Prod.
RMT Co., 179 P.3d 32, 41 (Colo. App. 2007). The jury agreed that
71
Winninger took documents but did not exercise dominion or
ownership over them.
¶ 127 Moreover, before the jury even submitted its third question,
the court proposed, and the parties agreed, to amend the special
verdict form for conversion so that the jury understood that either
dominion or ownership would suffice (i.e., Winninger did not have to
exercise both dominion and ownership). The court later
appropriately entered judgment on the jury’s verdict in favor of
Winninger on the conversion claim (and the other claims).
V. Disposition
¶ 128 We affirm the district court’s judgments in part and remand
the case with directions to vacate the judgment awarding costs in
favor of Shannon and Brown.
JUDGE HARRIS and JUDGE SCHUTZ concur.
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