Winninger v. Vail Clinic

• Court: Colorado Court of Appeals
• Decided: August 21, 2025
• Docket: 24CA0632
• Status: Unpublished

Opinion

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,

¶ 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

¶ 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.