2020 COA 157
Colo. Ct. App.2020Background
- Begley and Hirsch owned a lot in Denver; neighbors Ireson and Hoeckele alleged damage to their homes from Begley/Hirsch’s demolition/excavation work.
- Ireson and Hoeckele retained attorney Andrew Gibbs; Gibbs made prelitigation communications (demands to stop work, settlement overtures, CDARA notice, threats to involve court/police) to Begley, Hirsch, and contractor Forte.
- Begley and Hirsch sued for intentional interference with contract and prospective contractual relations; Ireson and Hoeckele (and Gibbs) later sued Begley/Hirsch; earlier COA decision (Begley I) held that a litigation privilege protects prelitigation attorney statements only if (1) the statement relates to prospective litigation and (2) the litigation was contemplated in good faith, and remanded for factual determinations.
- On remand the district court granted summary judgment for Gibbs and partial summary judgment for Ireson/Hoeckele applying Begley I; it also awarded costs to Gibbs without a hearing.
- The Court of Appeals affirms summary judgment (litigation privilege applies) but reverses the costs award and remands for a required hearing on costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the litigation privilege applies only to defamatory statements | Begley: privilege requires defamation; Gibbs’s demands were nondefamatory and thus not privileged | Gibbs: privilege extends to nondefamatory prelitigation conduct related to litigation | Privilege can shield nondefamatory attorney statements; applied here |
| Whether Gibbs’s statements "related to" contemplated litigation | Begley: Gibbs merely interfered with construction, not statements about litigation | Gibbs: statements were made after retention, about damage/settlement, to persons connected to litigation | Statements related to the subject matter of prospective litigation and were privileged |
| Whether Gibbs contemplated litigation in good faith when he made the statements | Begley: Gibbs acted in bad faith (ambiguous bases, mislabeling in CDARA, threats, meritless claims) | Gibbs: retained to pursue damages, attempted settlement, prepared expert reports, filed suit and followed CDARA steps | Filing suit alone isn't dispositive; circumstantial evidence supported good-faith contemplation and Begley/Hirsch failed to raise a triable issue |
| Whether the district court properly awarded costs without a hearing | Begley: contested reasonableness/support for costs and timely requested a hearing | Gibbs: prevailing party entitled to costs as of course | District court must hold a hearing when costs are contested and a hearing requested; award reversed and remanded for hearing |
Key Cases Cited
- Club Valencia Homeowners Ass’n v. Valencia Assocs., 712 P.2d 1024 (Colo. App. 1985) (privilege protects statements having relation to pending/prospective litigation; pertinency standard)
- Westfield Dev. Co. v. Rifle Inv. Assocs., 786 P.2d 1112 (Colo. 1990) (qualified litigation privilege can shield nondefamatory litigation-related acts; three-part test for qualified privilege)
- Buckhannon v. U.S. W. Commc’ns, Inc., 928 P.2d 1331 (Colo. App. 1996) (privilege bars non-defamation torts that arise from litigation-related conduct)
- Merrick v. Burns, Wall, Smith & Mueller, P.C., 43 P.3d 712 (Colo. App. 2001) (communications preliminary to proceedings protected only if they relate to litigation contemplated in good faith)
- Shelter Mut. Ins. Co. v. Mid‑Century Ins. Co., 246 P.3d 651 (Colo. 2011) (standard of review for summary judgment)
- Visto Corp. v. Sproqit Techs., Inc., 360 F. Supp. 2d 1064 (N.D. Cal. 2005) (litigation privilege is a defense to multiple torts, not just defamation)