Steven Wright, Plaintiff-Appellee and Cross-Appellant, v. TEGNA Inc. and Multimedia Holdings Corp., Defendants-Appellants and Cross-Appellees.
No. 23CA0436
Colorado Court of Appeals
June 13, 2024
Opinion Modified Petition for Rehearing GRANTED Announced June 13, 2024
2024COA64M
Opinion by JUDGE TAUBMAN*; Freyre and Schutz, JJ., concur
Elbert County District Court No. 22CV30078, Honorable Gary M. Kramer, Judge
SUMMARY
June 13, 2024
2024COA64M
No. 23CA0436, Wright v. Tegna Inc. — Courts and Court Procedure — Regulation of Actions and Proceedings — Action Involving Exercise of Constitutional Rights — Anti-SLAPP — Reasonable Likelihood Plaintiff will Prevail
A division of the court of appeals considers the quality and quantity of evidence a plaintiff must present in order to “establish[] . . . a reasonable likelihood that the plaintiff will prevail on the claim,” the second step in a court’s assessment of an anti-SLAPP special motion to dismiss,
Division VI
The Dan Caplis Law Firm, LLC, Daniel J. Caplis, Babar Waheed, Greenwood Village, Colorado; Hershey Decker Drake, PLLC, C. Todd Drake, Lone Tree, Colorado, for Plaintiff-Appellee and Cross-Appellant
Garnett Powell Maximon Barlow, Robert L. Barlow, Natalie R. Klee, Denver, Colorado, for Defendants-Appellants and Cross-Appellees
*Sitting by assignment of the Chief Justice under provisions of
Added the following paragraphs at pages 34-35, ¶¶ 73-75:
9News seeks attorney fees and costs pursuant to
Even a party who only partially prevails on an anti-SLAPP special motion to dismiss is generally considered a prevailing party “unless the results of the motion were so insignificant that the party did not achieve any practical benefit from bringing the motion.” Rosenblum, ¶ 63, 538 P.3d at 369. Here, 9News prevailed on its claim that the district court erred in concluding that Wright established a reasonable likelihood of prevailing on his claim that 9News negligently hired, retained, and/or supervised Dolloff, see Part IV.A. It also prevailed on Wright’s cross-appealed claim, given our affirmance of the district court’s assessment that Wright did not establish a reasonable likelihood of prevailing on his claim that 9News created an unreasonable risk of harm in its news gathering because Elliott, Newman, and Dolloff engaged in a civil conspiracy
Therefore, we direct the district court to determine to what extent 9News’ partial appellate success warrants an award of a portion of its fees and costs incurred in the district court and on appeal, as well as the reasonableness of 9News’ requested fees and costs. See id. at ¶ 64, 538 P.3d at 369; see also
I. Background
¶ 3 In July 2020, Back the Blue, a pro-police organization, obtained a permit to host a “Patriot Muster” rally in Denver’s Civic Center Park on October 10, 2020. A counterdemonstration entitled “Black Lives Matter - Antifa Soup Drive” was scheduled concurrently.
¶ 4 9News planned to cover the events. In anticipation of a “potential for violence,” given the history of clashes between these groups, 9News decided to hire a security guard to protect its employees covering the events. It hired Pinkerton Consulting &
¶ 5 Pinkerton, in turn, hired Isborn Security Services, LLC (Isborn). Pinkerton had contracted with Isborn for several years for the provision of security services. Under their “Master Services Agreement,” Isborn promised to “furnish to Pinkerton security and investigative services . . . as may be requested on an as-needed basis.” The agreement specified that Isborn “shall provide personnel who have the appropriate technical skills, training, and experience.” Isborn ensured its personnel would honor “all security requirements and all reasonable instructions and directions issued by Pinkerton or Pinkerton’s client.” In Pinkerton’s emailed request to Isborn for these events, Pinkerton sought an armed guard with attire that was “casual to blend in” for “staff protection . . . on behalf of Tegna 9News.”
¶ 7 On the day of the events, Dolloff accompanied 9News producer Zachary Newman. Both dressed in plainclothes, without identification as a security guard or member of the press, respectively. Dolloff was armed.
¶ 8 Wright attended the “Patriot Muster” rally with his friend, Lee Keltner. As they were leaving the rally, Wright and Keltner argued with Jeremiah Elliott, who was wearing a Black Lives Matter shirt. The argument quickly escalated to an altercation when Keltner pulled a can of pepper spray from his pocket.
¶ 9 Newman recorded the altercation on his phone. Keltner asked Newman to stop recording and reached for Newman’s phone. Dolloff stepped in front of Newman. Keltner slapped Dolloff and
¶ 10 Following the shooting, Wright brought nine claims for negligent infliction of emotional distress against Elliott, Dolloff, Isborn, Pinkerton, and 9News. Wright’s fifth and sixth claims were asserted against 9News.
¶ 11 In his fifth claim, Wright contended that 9News was directly negligent by creating an unreasonable risk of harm in its newsgathering. Wright theorized that 9News created an unreasonable risk in two ways: 9News negligently hired, retained, and/or supervised Dolloff, and 9News’ newsgathering involved a civil conspiracy with Elliott to instigate an altercation that Newman could film.
¶ 12 In his sixth claim, Wright contended that 9News was vicariously liable for Dolloff’s actions. He asserted that even though Dolloff was an independent contractor, the security services he provided were an inherently dangerous activity, and thus they made 9News liable under an exception to the general rule that a person or entity hiring an independent contractor is not liable for the independent contractor’s actions.
¶ 14 First, the district court determined that the anti-SLAPP statute applied, as 9News was engaged in newsgathering on an issue of public interest during the altercation “because it took place directly following the rally and appeared to be a continuation of the rally, because it was in a public place, and because it involved allegations and cross-allegations of racism.”
¶ 15 Second, the court found that Wright demonstrated a reasonable likelihood of success on the merits of his theory of direct negligence via hiring, retention, and/or supervision and his vicarious liability claim “under the unique facts of this case.” The court based its findings on the following allegations in the complaint and evidence submitted by the parties:
- 9News sought to hire a security guard because of a “potential for violence”;
Pinkerton requested that Isborn hire an armed security guard; - Dolloff was unqualified to provide armed security; and
- Dolloff “followed and flanked” Newman, and 9News “dictated where Defendant Dolloff went during the event.”
¶ 16 Thus, as to the theory of direct negligence in the hiring, retention, and/or supervision, the district court found that “9News should have done more than simply rely on Pinkerton and Isborn to supply a qualified security guard at the rally and, further, 9News should have taken steps to supervise Dolloff while he was performing his functions as a security guard at the rally.” Likewise, the court found that these allegations could support a jury determination that 9News was vicariously liable for Dolloff’s actions, even though Dolloff was an independent contractor, because the security services provided in these circumstances were inherently dangerous.
¶ 17 Separately, the district court determined that Wright had not established a reasonable likelihood of success on his theory of direct negligence via civil conspiracy because “the contacts between
¶ 18 9News appeals the district court’s ruling on the direct negligence in the hiring, retention, and/or supervision theory and the vicarious liability claim; Wright cross-appeals the court’s ruling on the direct negligence via civil conspiracy theory.
II. Applicable Law and Standard of Review
¶ 19 Colorado’s anti-SLAPP statute serves to “safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government . . . and, at the same time, to protect the rights of persons to file meritorious lawsuits for demonstrable injury.”
¶ 20 To balance these interests, the statute provides a mechanism for a defendant to file a special motion to dismiss early in the case. In this way, courts may “‘make an early assessment about the merits’ of a lawsuit brought in response to a defendant’s protected . . . speech activity.” Anderson v. Senthilnathan, 2023 COA 88, ¶ 9, 540 P.3d 1248, 1253 (quoting Salazar v. Pub. Tr. Inst., 2022 COA 109M, ¶ 12, 522 P.3d 242, 247).
¶ 22 A court’s denial of a special motion to dismiss under the anti-SLAPP statute is immediately appealable.
¶ 23 We review such rulings de novo. Salazar, ¶ 21, 522 P.3d at 248.
III. Evidence for Anti-SLAPP Motions
¶ 24 Initially, 9News argues that Wright’s claims must be dismissed because he failed to provide “admissible evidence” to establish a
¶ 25 In contrast, Wright contends that the court may rely on the allegations of his complaint, even if they are rebutted by affidavits or other evidence presented by 9News.4
¶ 26 The district court disagreed with 9News’ contention that “a Plaintiff ‘must bring evidence’ or do ‘something more’ than simply rely on its allegations in response to [an anti-SLAPP] special motion to dismiss.” It stated that “although the statute permits parties to submit affidavits in support of and in response to a special motion to dismiss, it does not require that they do so.” We agree. As explained below, we conclude that a court may consider the
¶ 27 “To the extent our resolution of this appeal turns on interpretation of the anti-SLAPP statute, our review is de novo.” Salazar, ¶ 14, 522 P.3d at 247 (citing In re Estate of Garcia, 2022 COA 58, ¶ 22, 516 P.3d 962, 965). We give effect to the plain language of a statute unless the result is absurd or unconstitutional. See Rodriguez v. Schutt, 914 P.2d 921, 925 (Colo. 1996).
¶ 28 The plain language of Colorado’s anti-SLAPP statute states that when assessing whether a plaintiff has established a reasonable likelihood of prevailing on a claim, “court[s] shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.”
¶ 29 As the district court stated, the plain language of the statute “does not provide that the Court must only consider affidavits.” (Emphasis added.) In Coomer v. Donald J. Trump for President, Inc., a division of this court observed the same principle:
No party argues that the court may only consider affidavits, and we decline to impose such a limitation in this case. See, e.g., Creekside Endodontics, [LLC v. Sullivan, 2022 COA 145,] ¶ 41[, 527 P.3d 424, 431] (considering patient notes and email communication); L.S.S., ¶ 47[, 523 P.3d at 1290] (identifying various categories of evidence presented). But see Salazar, ¶ 40[, 522 P.3d at 251] (“A challenge under the anti-SLAPP statute . . . only allows the court to consider the pleadings and supporting and opposing affidavits . . . .”). Indeed, both Coomer and several defendants presented evidence beyond affidavits.
2024 COA 35, ¶ 79, ___ P.3d ___, ___. Likewise, in this case the parties presented evidence in addition to affidavits, such as videos,
¶ 30 Nor does the plain language of the anti-SLAPP statute state that we may only consider a complaint’s allegations if they are supported by “admissible evidence.” As quoted above, it mandates that courts conduct the second-step analysis based on “the pleadings and supporting and opposing affidavits.”
¶ 31 9News insists on a plaintiff’s need to submit “admissible evidence” by reference to Sweetwater Union High School District v. Gilbane Building Co., a case where the California Supreme Court5 held that “evidence may be considered at the anti-SLAPP motion
¶ 32 However, the holding in Sweetwater was contextualized by observations “regarding the timing of an anti-SLAPP motion and the stay of discovery.” Id. at 1163. In particular, the court noted that
[t]o strike a complaint for failure to meet evidentiary obstacles that may be overcome at trial would not serve the SLAPP Act’s protective purposes. Ultimately, the SLAPP Act was “intended to end meritless SLAPP suits early without great cost to the target,” not to abort potentially meritorious claims due to a lack of discovery. Notwithstanding the discovery stay, the court has discretion to order, upon good cause, specified discovery if required to overcome the hurdle of potential inadmissibility.
. . . .
[Therefore,] the court may consider affidavits, declarations, and their equivalents if it is reasonably possible the proffered evidence set out in those statements will be admissible at
Id.trial.6 Conversely, if the evidence relied upon cannot be admitted at trial, because it is categorically barred or undisputed factual circumstances show inadmissibility, the court may not consider it in the face of an objection. If an evidentiary objection is made, the plaintiff may attempt to cure the asserted defect or demonstrate the defect is curable.
¶ 33 As an initial matter, we note that in Colorado as in California — as the parties addressed at the hearing, and as the court noted in its ruling — an anti-SLAPP special motion to dismiss is filed before and generally halts formal discovery. See
¶ 34 Here, the district court did not follow this procedure. 9News did not make evidentiary objections to particular exhibits on the basis of categorical bars or undisputed factual circumstances, and Wright was not given an opportunity to address asserted defects. Further, the court did not exercise “discretion to order, upon good cause, specified discovery . . . to overcome the hurdle of potential inadmissibility.” Sweetwater, 434 P.3d at 1163. Rather, as Wright argues, it seems the district court simply considered it “reasonably possible the proffered evidence . . . will be admissible at trial” and proceeded accordingly. Id.
¶ 35 Moreover, Sweetwater did not affirmatively require that plaintiffs proffer “something more” than allegations. Rather, it explained that if they choose to do so, it must be “reasonably possible” that the evidence would be admissible at trial. Id. As the district court observed, to require that all allegations be substantiated by affidavits or other “admissible evidence,” before the party has had a meaningful opportunity to engage in discovery,
¶ 36 Nevertheless, 9News insists that plaintiffs must proffer “admissible evidence” because we have characterized our review in other anti-SLAPP cases “as a summary judgment-like procedure in which the court reviews the pleadings and the evidence to determine ‘whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment.’” L.S.S., ¶ 23, 523 P.3d at 1286 (citation omitted); see also Salazar, ¶ 16, 522 P.3d at 247 (“In other respects, the special motion to dismiss is more like a motion for summary judgment.”). However, in those cases we have also described how the anti-SLAPP statute operates differently from summary judgment proceedings. See L.S.S., ¶ 17, 523 P.3d at 1285; see also Salazar, ¶¶ 15, 17, 522 P.3d at 247 (“In some respects, the special motion to dismiss is just that — a motion to dismiss. It seeks an early end to the litigation based, essentially, on the assertion that the plaintiff will ultimately, and inevitably, lose. . . . In yet other ways, an anti-SLAPP special motion to dismiss is similar to a request for
¶ 37 9News also emphasizes the use of the word “evidence” in a few anti-SLAPP opinions issued by this court. However, in each of these instances, the divisions stated the same standard outlined above, simply adding the word evidence. See, e.g., Anderson, ¶ 11, 540 P.3d at 1254; see also Gonzales v. Hushen, 2023 COA 87, ¶ 21, 540 P.3d 1268, 1278 (stating that the court “reviews the pleadings, affidavits, and evidence”). In addition, the divisions’ use of the word “evidence” was done when discussing the standard applied to evaluate the merits of the claims brought in those cases in different factual contexts. See, e.g., Rosenblum v. Budd, 2023 COA 72, ¶¶ 39, 55, 538 P.3d 354, 365, 368; Gonzales, ¶ 80 n.13, 540 P.3d at 1288 n.13.
¶ 38 Thus, plaintiffs may submit affidavits or evidence to support their allegations, but they are not required to do so. The invocation of the word “evidence” in the opinions’ analyses — if apprehended to mean anything more than a general reference to what was presented in support of or opposition to a special motion to dismiss — simply demonstrates that submitting more robust evidence may
¶ 39 Coomer recently clarified this point, noting that, “to defeat an anti-SLAPP motion, the plaintiff generally must go further and present evidence establishing a reasonable likelihood of success.” Coomer, ¶ 68, ___ P.3d at ___ (first and second emphases added) (citing L.S.S., ¶ 23, 523 P.3d at 1286). The division explained that
evidence can — and typically will — come in the form of an affidavit. But once affirmed in an affidavit, the plaintiff’s assertions are no longer mere allegations; they are evidence. And that evidence must be accepted as true. . . .
In other words, while we do not necessarily accept the plaintiff’s allegations as true, we do accept as true the plaintiff’s evidence.
Id. at ¶¶ 68-69, ___ P.3d at ___ (citations omitted). Thus, Coomer makes clear that references to evidence in our jurisprudence can refer to affidavits, more robust evidence may more readily spell success for a plaintiff, and we accept the plaintiff’s evidence as true. None of this means that a complaint’s unsupported allegations may not be considered.
¶ 41 In sum, we hold that a court may consider allegations that are unsupported by “admissible evidence.” However, if those allegations are refuted by a defendant’s evidence, the defendant will generally prevail, unless the plaintiff responds with other evidence.
IV. Negligent Infliction of Emotional Distress
A. Negligence in Hiring, Retention, and/or Supervision Theory of Direct Negligence
¶ 42 9News contends the district court erred in concluding that Wright established a reasonable likelihood of prevailing on his claim
¶ 43 Wright’s allegations cannot support a theory of negligent hiring or retention. That theory of “[l]iability of the employer is predicated on the employer’s antecedent ability to recognize a potential employee’s ‘attribute[s] of character or prior conduct’ which would create an undue risk of harm to those with whom the employee came in contact in executing his employment responsibilities.” Moses v. Diocese of Colo., 863 P.2d 310, 327 (Colo. 1993) (quoting Connes v. Molalla Transp. Sys., Inc., 831 P.2d 1316, 1321 (Colo. 1992)).
¶ 44 As noted, 9News did not directly hire Dolloff. Rather, it solicited security services from Pinkerton, which contracted with Isborn, which in turn hired Dolloff.
¶ 45 Moreover, as 9News notes, it “contracted with Pinkerton because 9News lacks the expertise to provide its own security.” Beyond “finding a company with undeniable expertise in the needed service,” 9News stated that it lacked the expertise to scout, screen, and select individual security guards. Wright does not allege to the contrary; rather, he contends only that Dolloff was unqualified and
¶ 46 Additionally, we disagree with the district court that “9News should have taken steps to supervise Dolloff while he was performing his functions as a security guard at the rally.”
¶ 47 No duty to supervise exists when an independent contractor has “exclusive control over the manner of doing the work.” W. Stock Ctr., Inc. v. Sevit, Inc., 195 Colo. 372, 377, 578 P.2d 1045, 1049 (1978). A right to inspect work does not create a duty of supervision. Id.
¶ 48 Wright’s allegations do not support a theory of negligent supervision. In particular, his allegations do not establish a reasonable probability that Dolloff’s actions were within 9News’ control on the day of the events.
¶ 50 Our review of the video in the record confirms that Newman did not direct Dolloff during the altercation. See Colo. Dep’t of Pers. v. Alexander, 970 P.2d 459, 467 (Colo. 1998) (“An appellate court may draw its own conclusions from operative documentary material in the record.” (citing M.D.C./Wood, Inc. v. Mortimer, 866 P.2d 1380, 1382 (Colo. 1994))). The record shows that Newman did not direct Dolloff when or how to step in when Keltner reached for his phone, nor did he instruct Dolloff to shoot Keltner. As Newman attested, “9News or KUSA-TV took no actions or inactions that caused Mr. Dolloff to shoot Mr. Keltner.” These attestations “defeat[] the
¶ 51 In sum, the district court erred in concluding that Wright established a reasonable likelihood of prevailing on his claim that 9News negligently hired, retained, and/or supervised Dolloff.
B. Vicarious Liability
¶ 52 9News also contends the district court erred in concluding that Wright established a reasonable likelihood of prevailing on his claim that 9News was vicariously liable for the acts of Dolloff. We disagree.8
¶ 53 “As a general rule, a person hiring an independent contractor to perform work is not liable for the negligence of the independent contractor.” Huddleston v. Union Rural Elec. Ass’n, 841 P.2d 282, 287 (Colo. 1992). However, a hiring party may be held liable when it is proved
(1) that the activity in question presented a special or peculiar danger to others inherent in the nature of the activity or the particular circumstances under which the activity was to be performed; (2) that the danger was different in kind from the ordinary risks that commonly confront persons in the community; (3) that the employer knew or should have known that the special danger was inherent in the nature of the activity or in the particular circumstances under which the activity was to be performed; and (4) that the injury to the plaintiff was not the result of the collateral negligence of the defendant’s independent contractor.
Id. at 294 (emphasis added). “[T]he determination of whether an activity is inherently dangerous will ultimately depend on the state of the evidence bearing on that issue.” Id. at 293. Relatedly, the trier of fact is best suited to evaluate what constitutes an inherently dangerous activity. Sevit, 195 Colo. at 378, 578 P.2d at 1050.
¶ 54 The district court concluded that a jury could determine that 9News was vicariously liable for Dolloff’s actions, even though Dolloff was an independent contractor, because the security services provided in these circumstances were inherently dangerous. In its ruling, the court emphasized that “under the
¶ 55 9News contends that “Wright cannot prevail on his sixth claim because Dolloff was provided as a security guard by Pinkerton, through Isborn.” Nevertheless, we conclude that 9News could be vicariously liable under the inherently dangerous exception if the independent contractors at issue here are deemed to have engaged in an inherently dangerous activity.
¶ 56 As noted above, for purposes of the anti-SLAPP special motion to dismiss, at this juncture Wright need only have “stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment.” L.S.S., ¶ 23, 523 P.3d at 1286
¶ 57 First, Wright “established a “reasonable likelihood of success,”
¶ 59 Third, the record establishes a reasonable likelihood of success that 9News “knew or should have known that the special danger was inherent in . . . the particular circumstances under which the activity was to be performed.” Huddleston, 841 P.2d at 294. As described above, Newman acknowledged the “potential for violence” at the events was the primary impetus for 9News’ decision to hire a security guard.
¶ 60 Fourth, Wright has alleged that his injuries were “not the result of the collateral negligence of the independent contractor,”
¶ 61 Whether Dolloff’s shooting of Keltner occurred as part of or after the “ordinary or prescribed way” of providing security services and whether such actions were “reasonably to have been contemplated” by 9News are, at least, close questions. Id. At this juncture, however, the allegations and evidence proffered by Wright show that Dolloff was acting pursuant to “the ordinary or
¶ 62 The district court relied on the agreement between Pinkerton and Isborn contracting for an armed guard with attire that was “casual to blend in” for “staff protection . . . on behalf of Tegna 9News,” to infer that 9News had requested armed security. This demonstrates that 9News anticipated use of arms to be within the ambit of any security hire’s scope of employment. For purposes of our “‘early assessment about the merits’ of a lawsuit,” Anderson, ¶ 9, 540 P.3d at 1253 (quoting Salazar, ¶ 12, 522 P.3d at 246), again an assessment made without the benefit of discovery, see Salazar, ¶¶ 19-21, 522 P.3d at 248, Wright has presented enough to establish a reasonable likelihood of success that his alleged emotional distress was not the result of Dolloff’s collateral negligence. See also Sevit, 195 Colo. at 378-79, 578 P.2d at 1050
¶ 63 Therefore, Wright has adduced enough to establish a reasonable likelihood of prevailing on his vicarious liability claim by making a prima facie factual showing on all four Huddleston factors, meaning an inherently dangerous activity was at hand. Accordingly, the district court did not err by concluding that Wright established a reasonable likelihood of prevailing on his claim that 9News could be vicariously liable for Dolloff’s actions.
C. Civil Conspiracy Theory of Direct Negligence
¶ 64 On cross-appeal, Wright contends that the district court erred in concluding that Wright did not establish a reasonable likelihood of prevailing on his claim that 9News created an unreasonable risk of harm in its newsgathering because Elliott, Newman, and Dolloff engaged in a civil conspiracy to instigate newsworthy events. We disagree.
¶ 65 To prove a claim for civil conspiracy, a plaintiff must establish “(1) two or more persons . . . ; (2) an object to be accomplished; (3) a
¶ 66 “While a civil conspiracy may be ‘implied by a course of conduct and other circumstantial evidence,’ we will not infer a conspiracy absent some proof of an agreement. The plaintiff must present ‘some indicia of agreement in an unlawful means or end.’” Id. at ¶ 52, 538 P.3d at 367 (citations omitted).
¶ 67 Wright’s complaint and several affidavits, taken together, show that Elliott referred to 9News as “our news company”; that Elliott, Newman, and Dolloff talked during the rally; that Newman and Dolloff stood near the altercation; that Elliott cheered after Keltner was shot; and that 9News reported on Elliott’s fundraising efforts for his personal safety.
¶ 68 In response, 9News submitted an affidavit from Newman attesting that Elliott was unaffiliated with 9News and that he, Elliott, and Dolloff had never agreed to act together. It also submitted affidavits from 9News personnel averring that Elliott was not a 9News employee.
¶ 70 The circumstantial evidence — references to “our news company,” cheering, or fundraising on 9News, all of which were actions by Elliott that occurred after the shooting — does not provide the further necessary “indicia of agreement in an unlawful means or end.” Id. at ¶ 52, 538 P.3d at 367 (citation omitted).
¶ 72 Therefore, the district court did not err in dismissing Wright’s civil conspiracy claim.
V. Attorney Fees and Costs
¶ 73 9News seeks attorney fees and costs pursuant to
¶ 74 Even a party who only partially prevails on an anti-SLAPP special motion to dismiss is generally considered a prevailing party “unless the results of the motion were so insignificant that the party did not achieve any practical benefit from bringing the motion.” Rosenblum, ¶ 63, 538 P.3d at 369. Here, 9News prevailed on its claim that the district court erred in concluding that Wright established a reasonable likelihood of prevailing on his claim that 9News negligently hired, retained, and/or supervised Dolloff, see Part IV.A. It also prevailed on Wright’s cross-appealed claim, given our affirmance of the district court’s assessment that Wright did not establish a reasonable likelihood of prevailing on his claim that 9News created an unreasonable risk of harm in its news gathering because Elliott, Newman, and Dolloff engaged in a civil conspiracy
¶ 75 Therefore, we direct the district court to determine to what extent 9News’ partial appellate success warrants an award of a portion of its fees and costs incurred in the district court and on appeal, as well as the reasonableness of 9News’ requested fees and costs. See id. at ¶ 64, 538 P.3d at 369; see also
VI. Disposition
¶ 76 The order is affirmed in part and reversed in part. We remand for further proceedings consistent with this opinion.