23CA1606 Wright v Boyd 08-29-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1606

Jefferson County District Court No. 22CV30839

Honorable Meegan A. Miloud, Judge

Michael Wright,

Plaintiff-Appellant,

v.

Trina Boyd,

Defendant-Appellee.

JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS

Division I

Opinion by JUDGE WELLING

J. Jones and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced August 29, 2024

Buchalter, Clayton W. Barnett, Denver, Colorado, for Plaintiff-Appellant

Pearson & Paris, P.C., Stephen J. Carbonneau, Lakewood, Colorado, for

Defendant-Appellee

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¶ 1 Plaintiff, Michael Wright, appeals the trial court’s judgment

dismissing his complaint for lack of subject matter jurisdiction. We

affirm the judgment and remand the case with directions.

I. Background

¶ 2 During the 2021-2022 school year, Wright and defendant,

Trina Boyd, both worked for Weld County School District RE-3J

(RE-3J). RE-3J employed Wright as a teacher for the visually

impaired, and Boyd served as an orientation and mobility specialist

for numerous schools across the state, including those in RE-3J.

¶ 3 On April 4, 2022, Boyd sent an email from her personal email

address to her and Wright’s then supervisor discussing individual

education plans for students under the supervision of both Wright

and Boyd. In part, the email stated the following:

There were two goals that [Wright] did not

work on at all for the year [with Student]. He

had one to work on cooking with [Student]. He

kept telling [Student] that he couldn’t find a

location. Within [fifteen] minutes at Central, I

was able to find a location and the teacher was

open to [Student] working in the classroom

when she was not using it to cook in. Also,

she said that it could be used after school.

But that makes me concerned because of

[Wright’s] past history of being escorted out of

a school in Adams 12. I have heard that

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[Wright] was working with kids in a small room

and the door was locked. YIKES! Also, I have

heard about some information within Weld

County [RE-5J] about [Wright] working with

student[s] alone in classrooms with the lights

out.

¶ 4 On July 21, 2022, Wright filed a complaint in district court

alleging that Boyd’s email contained defamatory statements about

him that caused direct and special damages to his personal and

professional reputation and directly caused the termination of his

employment with RE-3J. In his complaint, Wright alleged that

“[Boyd] is an Orientation and Mobility Specialist employed to

provide services within Weld County RE-3J School District.”

(Emphasis added.) Wright never sent prefiling notice of the claim to

Boyd, RE-3J, or anyone else.

¶ 5 Boyd filed a motion to dismiss, arguing that (1) the Colorado

Governmental Immunity Act (CGIA) barred the lawsuit; (2) Wright

had failed to comply with the CGIA’s notice requirements, which are

a jurisdictional prerequisite to suing Boyd as a public employee who

was acting within the scope of her employment; (3) Wright’s

complaint had failed to plausibly allege a claim of relief; and

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(4) Boyd’s statements in the email were constitutionally protected

speech.

¶ 6 After Boyd filed her motion to dismiss, Wright filed an

amended complaint. In his amended complaint, Wright again

alleged that “[Boyd] is an Orientation and Mobility Specialist

employed to provide services within Weld County RE-3J School

District” and that she had sent the actionable email “outside the

scope of her employment.” (Emphasis added.) Wright didn’t

challenge Boyd’s status as a “public employee,” only whether Boyd

had acted within the scope of her public employment when she sent

the email.

¶ 7 Boyd filed a renewed motion to dismiss two weeks later, again

arguing that Wright’s lawsuit was barred by the CGIA for the same

reasons set forth in her original motion to dismiss. In his response,

Wright acknowledged that Boyd “is an Orientation and Mobility

specialist employed to provide services within Weld County RE-3J

School District” but argued that the CGIA didn’t apply because

Boyd had sent the allegedly defamatory email in her individual

capacity, not while acting within the scope of her employment.

Wright also requested in the alternative that the trial court permit

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limited discovery in advance of a hearing pursuant to Trinity

Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916

(Colo. 1993), to determine the narrow issue of whether Boyd was

acting within the scope of her employment when she sent the

allegedly defamatory email.

¶ 8 The trial court declined to hold a Trinity hearing or permit

discovery and granted Boyd’s motion to dismiss. In its order

dismissing the amended complaint, the trial court determined that

Boyd was a public employee and that she had sent the email while

acting within the scope of her employment. The trial court further

concluded that Wright hadn’t pleaded facts sufficient to establish

that Boyd had acted willfully or wantonly when she sent the

allegedly defamatory email. Accordingly, the trial court concluded

that the CGIA barred the lawsuit because Wright hadn’t complied

with the CGIA’s prefiling notice requirements.

II. Analysis

¶ 9 On appeal, Wright argues that the trial court erred by

dismissing his claim against Boyd for lack of subject matter

jurisdiction because (1) Boyd was an independent contractor and

the CGIA doesn’t provide immunity to independent contractors; and

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(2) even assuming Boyd was a public employee, the CGIA doesn’t

apply because (a) the court’s finding that she acted within the scope

of her employment was premature given the lack of discovery and

(b) Wright sufficiently alleged in his complaint that Boyd had acted

willfully and wantonly when she sent the allegedly defamatory

email, which abrogates immunity.

¶ 10 Because Wright didn’t preserve his contention that Boyd was

an independent contractor and because the trial court properly

determined, based on Wright’s own allegations and the arguments

presented to it, that the CGIA applied to Wright’s claims, Wright

was required to give prefiling notice and he failed to do so.

Accordingly, we affirm the trial court’s dismissal of Wright’s

amended complaint and remand the case with directions regarding

Boyd’s request for attorney fees.

A. The Colorado Governmental Immunity Act

1. Applicable Legal Principles and Standard of Review

¶ 11 Generally, the CGIA protects government entities and public

employees acting within the scope of their employment from

lawsuits in tort. See § 24-10-105(1), C.R.S. 2024. This immunity

doesn’t extend to independent contractors hired by a government

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entity. § 24-10-103(4)(a), C.R.S. 2024 (“‘Public employee’ means an

officer, employee, servant, or authorized volunteer of the public

entity . . . but does not include an independent contractor . . . .”). If

a person seeks to bring a lawsuit in tort against a public employee,

there are specific notice requirements that are “a jurisdictional

prerequisite to any action brought under” the CGIA. § 24-10-

109(1), C.R.S. 2024 (emphasis added). Failing to give prefiling

notice for a CGIA claim is a jurisdictional defect necessitating

dismissal. Villalpando v. Denver Health & Hosp. Auth., 181 P.3d

357, 361 (Colo. App. 2007).

¶ 12 The CGIA also doesn’t provide immunity to public employees

when their actions or omissions giving rise to the cause of action

are willful and wanton. § 24-10-105(1). “In any action in which

allegations are made that an act or omission of a public employee

was willful and wanton, the specific factual basis of such

allegations shall be stated in the complaint.” § 24-10-110(5)(a),

C.R.S. 2024. Importantly, however, alleging that a public employee

acted willfully and wantonly doesn’t relieve a plaintiff from

complying with the prefiling notice requirements as a jurisdictional

prerequisite to filing suit. See § 24-10-109(1) (“Any person claiming

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to have suffered an injury by a public entity or by an employee

thereof while in the course of such employment, whether or not by a

willful and wanton act or omission, shall file a written notice as

provided in this section . . . .”) (emphasis added).

¶ 13 When the facts relating to immunity are in dispute, a trial

court must hold a Trinity hearing “to definitively resolve all issues of

immunity before trial.” Finnie v. Jefferson Cnty. Sch. Dist. R-1, 79

P.3d 1253, 1258 (Colo. 2003). The purpose of a Trinity hearing is

“to develop facts relating to immunity issues” with discovery and

evidentiary presentations. Id. at 1260. Only if the facts relating to

immunity are undisputed may a trial court rule on the issue of

immunity based on the pleadings alone. Id.

¶ 14 “Whether the CGIA applies to protect the government from suit

is a question of subject matter jurisdiction governed by the

standard for dismissal pursuant to C.R.C.P. 12(b)(1).” Maphis v.

City of Boulder, 2022 CO 10, ¶ 13. A plaintiff bears the burden of

proving that a government entity has waived sovereign immunity

and a suit in tort may go forward. Id. In the CGIA context, the

plaintiff’s burden is “relatively lenient, as the plaintiff is afforded the

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reasonable inferences from her undisputed evidence.” City & Cnty.

of Denver v. Dennis, 2018 CO 37, ¶ 11.

¶ 15 We review a trial court’s decision of whether to hold a Trinity

hearing for an abuse of discretion. Bilderback v. McNabb, 2020

COA 133, ¶ 10. A court abuses its discretion when it misapplies

the law or its decision is manifestly arbitrary, unreasonable, or

unfair. Antero Res. Corp. v. Strudley, 2015 CO 26, ¶ 14; Freedom

Colo. Info., Inc. v. El Paso Cnty. Sheriff’s Dep’t, 196 P.3d 892, 899

(Colo. 2008).

¶ 16 The issue of sovereign immunity presents a mixed question of

law and fact. Maphis, ¶ 14. If “the facts are undisputed and the

issue is one of law,” we review the trial court’s jurisdictional ruling

de novo. Tidwell v. City & Cnty. of Denver, 83 P.3d 75, 81 (Colo.

2003).

2. Boyd’s Public Employment Status

¶ 17 Wright first argues that the trial court erred by dismissing his

claim for lack of subject matter jurisdiction because Boyd was an

independent contractor, not a public employee, and therefore the

CGIA doesn’t apply. To support his contention, Wright argues that

the trial court was required to hold a Trinity hearing to determine

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the issue of sovereign immunity. We conclude that the trial court

didn’t err.

a. Additional Background

¶ 18 In his amended complaint, Wright alleged that “[Boyd] is an

Orientation and Mobility Specialist employed to provide services

within Weld County RE-3J School District” and that she had sent

the actionable email “outside the scope of her employment.”

(Emphasis added.) Both Boyd’s motion to dismiss and renewed

motion to dismiss pointed to Wright’s language that she was

“employed” to provide services in RE-3J to argue that the CGIA

barred suit. To support her position, Boyd argued in both her

original and renewed motion to dismiss that (1) “[t]he Amended

Complaint is void of any allegation that [Boyd] is not a ‘public

employee’”; (2) Boyd had sent the allegedly defamatory email within

the scope of her employment as a public employee; and (3) to waive

CGIA immunity, Wright needed to allege facts sufficient to support

a conclusion that CGIA immunity had been waived and he had

failed to meet this burden.

¶ 19 In his response, Wright argued that the CGIA didn’t bar this

claim because “[Boyd] made the statements in her personal capacity

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and was not acting within the scope of her employment,” and

because Boyd wasn’t acting in the scope of her employment, the

CGIA notice requirements weren’t applicable. Notably, Wright

didn’t assert that Boyd was an independent contractor or otherwise

place Boyd’s status as a public employee into dispute.

¶ 20 The trial court declined to hold a Trinity hearing, concluding

that all of the facts necessary to determine the immunity issue were

undisputed. See Finnie, 79 P.3d at 1260. Based on the information

presented in the parties’ briefs, the relevant pleadings, and

applicable law, the court found that “Boyd’s email and the alleged

defamation statements therein[] were published within the scope of

her employment as a public employee.”

b. The Trial Court Properly Determined that the CGIA Applied to

Wright’s Claim Against Boyd

¶ 21 For the first time in this litigation, in his opening brief to this

court, Wright contends that the CGIA isn’t applicable to Boyd

because she’s an independent contractor, not a public employee.

See § 24-10-103(4)(a) (explicitly excluding “an independent

contractor” from the definition of “public employee”). Wright

contends that in the wake of the trial court proceedings, his counsel

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discovered that Boyd, “without question,” was an independent

contractor — a fact “undoubtedly known by” Boyd during the

motion to dismiss proceedings — and alleges that had the trial

court allowed discovery on the scope of employment issue, Wright

would have become aware of Boyd’s employment status during the

motion to dismiss stage.

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¶ 22 First, Wright failed to preserve the contention that the CGIA

didn’t apply to Boyd because she was an independent contractor

because Wright never alleged or argued to the trial court that Boyd

was an independent contractor. Wright’s only basis for asserting

that the CGIA didn’t apply to Boyd was that she acted outside the

scope of her employment as a public employee at RE-3J when she

sent the allegedly defamatory email. Therefore, whether the trial

court erred by failing to assess whether Boyd was an independent

contractor isn’t preserved for our review. Marcellot v. Exempla, Inc.,

2012 COA 200, ¶ 11 (stating that appellate courts “generally will

1

was an independent contractor. But, for the reasons discussed

below, it doesn’t matter because the issue wasn’t presented to the

trial court.

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not address for the first time on appeal issues not raised in or

decided by the trial court”).

¶ 23 Second, the trial court properly declined to hold a Trinity

hearing because there were no disputed facts regarding the only

contested issue concerning the applicability of the CGIA — namely,

whether Boyd was acting within the scope of her employment. And

the record supports the trial court’s conclusion that Boyd had sent

the allegedly defamatory email in her scope of employment because,

as the trial court correctly observed, the email is primarily

concerned with a student’s individual education plan and Boyd’s

concerns as to Wright’s ability to implement that plan, as well as

other workplace concerns. On appeal, Wright doesn’t seem to

challenge the propriety of the trial court’s scope of employment

finding, except to the extent he contends the finding shouldn’t have

been made prior to permitting discovery. In any event, we conclude

that the trial court didn’t abuse its discretion by declining to hold a

Trinity hearing because the issue of whether Boyd was a public

employee wasn’t put into dispute and the court had the information

necessary to determine the only issue in dispute, whether Boyd

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sent the allegedly defamatory email while acting in the scope of her

employment. See Strudley, ¶ 14.

¶ 24 Thus, the trial court properly determined that the CGIA

applied based upon the allegations, evidence, and argument

presented to it. And because the CGIA applied, prefiling notice was

required. § 24-10-109(1). This is true regardless of whether Wright

adequately alleged in his complaint that Boyd had engaged in willful

and wanton conduct by sending the allegedly defamatory email. Id.

Wright never provided the notice required by the CGIA. This is a

jurisdictional defect requiring dismissal. Indeed, Wright doesn’t

dispute that he failed to give notice. Accordingly, the trial court

properly dismissed Wright’s complaint.

c. Wright’s Assertion that Boyd Misrepresented Her Status as a

Public Employee Doesn’t Warrant a Different Result

¶ 25 Wright argues that because Boyd misrepresented her status as

a public employee in her motion to dismiss, justice requires

reversal. We disagree.

¶ 26 Setting aside that we don’t know the basis for Wright’s

assertions that (1) Boyd “without question” was an independent

contractor and (2) Boyd somehow knowingly misrepresented her

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status as a public employee to the trial court, this — a direct appeal

from an otherwise proper dismissal — isn’t the proper forum for

raising this contention for the first time. Notably, Wright didn’t file

any motion under C.R.C.P. 59, C.R.C.P. 60, or otherwise with the

trial court advancing his contention that Boyd somehow misled him

or the trial court regarding her status as a public employee.

¶ 27 The gravamen of Wright’s argument appears to be that had the

court granted his request for a Trinity hearing (and the attendant

discovery), he would’ve discovered and been able to argue that Boyd

was an independent contractor — something he now believes is

beyond dispute. He seems to argue that the “interest of justice”

requires us to overlook whether his actual arguments to the trial

court required it to conduct a Trinity hearing. It doesn’t. Instead,

for the reasons discussed in Part II.A.2.b above, we conclude that

the trial court didn’t err by determining that a Trinity hearing

wasn’t necessary for it to resolve the CGIA immunity issue. Alleging

new factual claims for the first time in an appellate brief isn’t a

basis for reversal.

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3. Willful and Wanton Conduct

¶ 28 Finally, Wright argues that the trial court erred by dismissing

his claim for lack of subject matter jurisdiction because, even if

Boyd was a public employee who acted within the scope of her

employment when she sent the allegedly defamatory email, the

CGIA doesn’t apply given that he sufficiently alleged that Boyd

acted willfully and wantonly. The trial court didn’t err.

¶ 29 When a public employee is acting within the scope of his or

her employment, the CGIA’s notice requirements must be adhered

to regardless of whether the public employee acted willfully or

wantonly. See § 24-10-109(1). And a party’s failure to adhere to

the CGIA’s notice requirements “forever bar any such action.” Id.

¶ 30 The trial court found that “neither party has stated any

position as to whether Ms. Boyd’s conduct in publishing the email

was willful or wanton, as the primary issue raised by the parties is

whether Ms. Boyd was acting within the scope of her employment or

in her personal capacity.” The trial court further found that Wright

hadn’t sufficiently pleaded facts that would permit the court to

determine whether Boyd acted willfully and wantonly. Accordingly,

the trial court concluded that the CGIA applied because Boyd was a

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public employee acting within the scope of her employment and

because Wright hadn’t complied with the CGIA’s notice

requirements, the CGIA barred the lawsuit.

¶ 31 As the trial court correctly observed, Wright failed to comply

with the CGIA’s notice requirements, which is a per se jurisdictional

bar. § 24-10-109(1).

¶ 32 Accordingly, we affirm the trial court’s judgment dismissing

the case.

B. Attorney Fees

¶ 33 Boyd requests that we award her reasonable appellate

attorney fees pursuant to section 13-17-201(1), C.R.S. 2024.

¶ 34 A defendant is entitled to an award of reasonable attorney fees

“[i]n all actions brought as a result of a death or an injury to person

or property occasioned by the tort of any other persons, where any

such action is dismissed on motion of the defendant prior to trial

under [C.R.C.P.] 12(b).” § 13-17-201(1).

¶ 35 Wright brough a suit in tort against Boyd, Boyd moved the

court to dismiss the suit under C.R.C.P. 12(b)(1), and the trial court

granted Boyd’s motion to dismiss. Because we affirm the trial

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court’s judgment, we grant Boyd’s request for an award of

reasonable attorney fees.

¶ 36 Accordingly, the case is remanded. On remand, the trial court

must determine the amount of Boyd’s reasonable attorney fees

incurred on appeal.

III. Disposition

¶ 37 The trial court’s judgment is affirmed, and the case is

remanded with directions.

JUDGE J. JONES and JUDGE SCHOCK concur.