Summers v. Summers.
2026 COA 73. No. 25CA1605. Action Involving Exercise of Constitutional Rights—Anti-SLAPP Special Motion to Dismiss—Failure to State a Claim Upon Which Relief Can be Granted—Defamation—Intentional Infliction of Emotional Distress—Attorney Fees and Costs.
October 1, 2026
Craig Summers’s son Colin sent two text messages to Craig and Colin’s adult sister. In the first text, Colin threatened to force-feed Craig bars of soap and to whip him. In the second, he accused Craig of raping Colin’s mother many years prior. Craig sued Colin for intentional infliction of emotional distress (IIED) based on both texts and for defamation based on the second text. Colin moved to dismiss the complaint under Colorado’s anti-SLAPP (strategic lawsuit against public participation) statute for failure to meet its standards and, alternatively, under CRCP 12(b)(5) for failure to state a claim. In Craig’s response to the motion, he requested an award of his reasonable attorney fees and costs under the anti-SLAPP statute. The district court denied the anti-SLAPP special motion to dismiss but did not award Craig his attorney fees and costs incurred in successfully defending that motion. The court granted Colin’s motion to dismiss under Rule 12(b)(5), ruling that the complaint failed to state a defamation claim because it did not allege sufficient facts that would negate the affirmative defense of conditional privilege that attaches to communications between non-spouse family members. The court then stated that the IIED claim necessarily failed as ancillary to the defamation claim. The court also denied Craig’s request for leave to amend the complaint.
On appeal, Craig argued that the court erred by dismissing his complaint under Rule 12(b)(5). In reviewing de novo a court’s dismissal under Rule 12(b)(5) for failure to state a claim, the court of appeals typically considers only matters stated in the complaint and may not consider additional allegations. But with an anti-SLAPP special motion to dismiss, courts consider whether the complaint’s allegations and the parties’ affidavits support a claim and make a prima facie factual showing to sustain a favorable judgment. Here, the record includes the anti-SLAPP affidavits, but the anti-SLAPP special motion to dismiss was not challenged on appeal. Accordingly, the Rule 12(b)(5) legal standards apply, so the anti-SLAPP affidavits may not be considered when reviewing the Rule 12(b)(5) dismissal. A court may dismiss a claim under Rule 12(b)(5) based on an affirmative defense if the complaint establishes that the affirmative defense bars the claim. The district court dismissed the defamation claim here based on the conditional privilege affirmative defense because the complaint failed to allege facts negating the affirmative defense, not because the complaint affirmatively established that the defense barred the claim. The court erred by dismissing the defamation claim on this ground because the allegations in the complaint did not trigger the conditional privilege, and even if the conditional privilege applied, the complaint alleged that Colin had acted with actual malice.
Craig also argued that the court erred by dismissing the IIED claim. The district court dismissed the IIED claim based solely on its dismissal of the defamation claim. Given that the court erred by dismissing the defamation claim, this ground for dismissing the IIED claim fails. However, the court properly dismissed Craig’s IIED claim because the rape accusation was made only once in a private text message sent only to Colin’s sister and father, so while it was likely hurtful and offensive, it does not qualify as extreme and outrageous as a matter of law.
Craig further contended that the court wrongly denied his request for leave to amend the complaint. This issue is moot because the relief sought, if granted, would have no practical effect on an existing controversy.
Lastly, the court concluded that Craig did not preserve his argument that he was entitled to attorney fees and costs for successfully defending the anti-SLAPP special motion to dismiss because, contrary to Rule 121, § 1-15(1)(d), Craig requested anti-SLAPP attorney fees and costs only in his response to Colin’s motion to dismiss.
The dismissal of the IIED claim was affirmed. The dismissal of the defamation claim was reversed and the case was remanded for further proceedings.