     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                 SUMMARY
                                                          November 14, 2019
                               2019COA170

No. 18CA1744, Duke v. Gunnison County — Torts — Wrongful
Death; Colorado Governmental Immunity Act — Immunity and
Partial Waiver

     A division of the court of appeals considers whether the

Colorado Governmental Immunity Act (CGIA) bars a wrongful death

action by parents of a deceased inmate against a public entity — a

jail. The division concludes that the waiver of immunity for

operation of a jail does not apply to the parents’ suit because (1) the

inmate was excluded from the waiver, having been incarcerated

pursuant to a conviction at the time of his injury, see

§ 24-10-106(1.5)(a), C.R.S. 2019; and (2) a party is liable in a

wrongful death action only when the injured party could have

“maintain[ed] an action and recover[ed] damages . . . if death had

not ensued,” § 13-21-202, C.R.S. 2019. Relying on Sigman v.

Seafood Ltd. Partnership I, 817 P.2d 527, 530-31 (Colo. 1991), the
division holds that when a decedent could not have maintained an

action for his injury, the tortfeasor is not liable to the decedent’s

heirs.

     The division also considers whether a public employee must

have knowledge of a specific danger to another for his or her

conscious disregard of that danger to constitute willful and wanton

conduct excepting the employee from CGIA immunity. See

§ 24-10-118(2)(a), C.R.S. 2019; see also Martinez v. Estate of Bleck,

2016 CO 58, ¶¶ 30, 32. The division concludes that knowledge of a

health danger to another, and conscious disregard thereof, may be

sufficient to render conduct willful and wanton for purposes of the

CGIA.
COLORADO COURT OF APPEALS                                      2019COA170


Court of Appeals No. 18CA1744
Gunnison County District Court No. 18CV30013
Honorable J. Steven Patrick, Judge


Beth Ann Duke and Joseph Councell Duke, Jr.,

Plaintiffs-Appellants,

v.

Gunnison County Sheriff’s Office, Richard Besecker, Ian Clark, Ryan Phillips,
Paula Martinez, Conner Udell, Megan Hollenbeck, Chad Roberts, and Brandyn
Rupp,

Defendants-Appellees.


               ORDER AFFIRMED IN PART, REVERSED IN PART,
                 AND CASE REMANDED WITH DIRECTIONS

                                   Division II
                         Opinion by JUDGE RICHMAN
                         Dailey and Brown, JJ., concur

           Prior Opinion Announced October 3, 2019, WITHDRAWN

          OPINION PREVIOUSLY ANNOUNCED AS “NOT PUBLISHED
            PURSUANT TO C.A.R. 35(e)” ON OCTOBER 3, 2019, IS
                  NOW DESIGNATED FOR PUBLICATION

                         Announced November 14, 2019


Levin Sitcoff PC, Bradley A. Levin, Elisabeth L. Owen, Denver, Colorado, for
Plaintiffs-Appellants

Berg Hill Greenleaf Ruscitti LLP, Josh A. Marks, David J. Goldfarb, Boulder,
Colorado, for Defendants-Appellees Gunnison County Sheriff’s Office, Richard
Besecker, Ian Clark, and Ryan Phillips
Williams, Turner & Holmes, P.C., Jeffrey L. Driscoll, Grand Junction, Colorado,
for Defendants-Appellees Paula Martinez, Conner Udell, Megan Hollenbeck,
Chad Roberts, and Brandyn Rupp
¶1    Plaintiffs, Beth Ann Duke and Joseph Councell Duke, Jr.,

 appeal an order granting motions to dismiss a claim for the

 wrongful death of their son, Joseph C. “Trey” Duke III, for lack of

 subject matter jurisdiction over defendants, Gunnison County

 Sheriff’s Office (GCSO), Sheriff Richard Besecker, and Deputies Ian

 Clark, Paula Martinez, Conner Udell, Megan Hollenbeck, Chad

 Roberts, Brandyn Rupp, and Ryan Phillips. We affirm in part and

 reverse in part.

                             I. Background

¶2    Although the district court did not hold a hearing pursuant to

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

 916 (Colo. 1993), the following facts, taken in part from the record

 in a related federal case, as relevant here, are undisputed. Trey had

 a long history of substance abuse, and he had been arrested and

 incarcerated in Gunnison multiple times for drug and alcohol

 related offenses. In the afternoon of June 27, 2015, when Trey was

 twenty-five years old, Deputy Clark found him passed out on pallets

 outside a motel and wearing an ankle monitor. A search and field

 test revealed that a material Trey was carrying in a pill bottle was

 heroin. Clark arrested Trey for possession of heroin, in violation of


                                   1
 his parole, and for use of alcohol or controlled substances, in

 violation of a protection order. Deputy Martinez transported Trey to

 the Gunnison County Jail. Deputy Phillips was on duty when Trey

 arrived, at approximately 3:45 p.m.

¶3    Though Trey’s behavior and appearance indicated that he was

 under the influence of controlled substances, he denied ingesting

 any drugs other than Clonazepam, as prescribed. He was given a

 drug recognition examination (DRE), and the evaluator opined that

 Trey was under the influence of a polydrug combination of a

 stimulant and a narcotic analgesic. The DRE was not definitive

 because it did not include a blood test.

¶4    Deputy Udell placed Trey on a sixteen-hour drug hold in the

 jail, where he would be checked periodically by deputies on duty.

 After a check, the deputy would mark the time, comments, and

 initials on a time check sheet (TCS).

¶5    Trey turned out his pockets and Udell conducted a partial

 “hands-on pat-down search” before placing Trey in a padded cell

 with a camera. At some point before 10:00 p.m., Deputy

 Hollenbeck saw on the video feed that Trey had removed something




                                   2
 from the front of his pants, and she sent Udell to retrieve the item.

 Udell reported, “it’s just some foil.”

¶6    At about 8:05 p.m., and again at about 10:40 p.m., Trey made

 telephone calls to his girlfriend and his mother — plaintiff Beth Ann

 Duke. At approximately 10:55 p.m., he was moved to a different

 cell without a video camera. According to the TCS, deputies

 checked on Trey fifteen times during the night, between the time he

 was placed in the new cell and the time he was served breakfast at

 approximately 7:30 a.m. Plaintiffs allege that the video surveillance

 in the corridor outside Trey’s cell does not corroborate some of the

 TCS entries.

¶7    Deputy Roberts served Trey’s breakfast. Roberts reported that

 when he went to collect the tray shortly before 8:00, he saw Trey

 “sitting [on the cell floor] with his legs crossed hunched over

 eating.” When Roberts asked, Trey said that he was ok.

¶8    An “inmate trustee,” Brandon Morse, was cleaning the area

 outside Trey’s cell when Deputy Phillips went to collect Trey’s

 breakfast tray, sometime between 8:30 and 8:50. The trustee and

 deputy were each familiar with Trey from prior contacts. Both men




                                     3
  saw Trey sitting cross-legged in his cell, with his head resting on

  the floor in front of his legs.

¶9     The accounts of Morse and Phillips diverge at this point.

  Morse said he had never seen anyone sit like that before, but

  Phillips said he had seen Trey in that position before. Morse said

  he saw the breakfast tray on the floor of the cell and food

  “splattered all over the floor,” but Phillips said he was able to

  retrieve the breakfast tray from the cell door. (A review of the

  security video confirms that Phillips retrieved the tray from the cell

  door.) Morse said he saw Phillips “glance” at Trey. Phillips stated

  that he “observed [him] to be breathing, based on the rise and fall of

  his back.” Morse reported that he told Phillips he “didn’t think Trey

  looked so good,” and he said Phillips responded, “That’s what you

  get for doing drugs.” Phillips said he didn’t recall speaking with

  Morse, but he admitted that the video showed them having an

  interaction.

¶ 10   Approximately thirty minutes later, Deputy Rupp noticed Trey

  sitting in the same position reported by Deputy Phillips, with a

  small amount of bile coming from his mouth. He tried to wake him

  but found him to be unresponsive. Rupp called for emergency


                                     4
  services and began lifesaving measures, but his efforts were to no

  avail. An emergency medical services team declared Trey dead

  shortly thereafter.

¶ 11   A final autopsy reported a “disrupted open plastic baggy,”

  ethanol, opiates, and high levels of fentanyl in Trey’s stomach;

  naloxone, clonazepam, oxycodone, fentanyl, cyclobenzaprine, and

  norfentanyl presence in his blood; and opiates, cocaine,

  benzodiazepines, and oxycodone presence in his urine. The

  examiner attributed the cause of death to a polydrug overdose, with

  fentanyl as the major component.

¶ 12   Plaintiffs filed a federal suit, claiming (1) a violation of Trey’s

  constitutional rights for deliberate indifference to a serious medical

  threat, under 42 U.S.C. § 1983 (2018); and (2) wrongful death,

  under section 13-21-202, C.R.S. 2019. The federal court granted

  summary judgment in favor of defendants on the federal claim,

  concluding that no clearly established constitutional right had been

  violated, and the GCSO had not been deliberately indifferent to

  injuries that could result from failure to train its staff on signs of an

  overdose. The court declined to exercise supplemental jurisdiction

  over the state law claim.


                                      5
¶ 13   Plaintiffs refiled the state claim in district court. They argued

  that defendants breached a duty to prevent Trey’s death when each

  defendant failed to obtain professional medical treatment before or

  during his confinement and that Deputy Udell and the GCSO failed

  to properly search Trey. They also argued that sovereign immunity

  is waived pursuant to sections 24-10-105(1) and -106(1)(b), C.R.S.

  2019.

¶ 14   Defendants moved to dismiss, in two separate motions,

  arguing that they were immune from the claim because it sounds in

  tort and does not fall within any waiver of immunity under the

  Colorado Governmental Immunity Act (CGIA). Specifically, the

  GCSO argued that the waiver of immunity for operation of a jail

  does not apply because Trey was incarcerated pursuant to a

  conviction, see § 24-10-106(1.5)(a), and the Sheriff and individual

  deputies argued that the waiver of immunity does not apply

  because their conduct was not willful and wanton, see

  § 24-10-118(2), C.R.S. 2019. Defendants Clark and Phillips

  specifically argued that they could not have consciously disregarded

  the danger of an overdose because they did not know that Trey had

  ingested fentanyl.


                                    6
¶ 15   Plaintiffs argued that governmental immunity was waived

  because (1) they, not Trey, were the claimants for the lawsuit, and

  they were not incarcerated; and (2) the individual defendants

  willfully and wantonly failed to provide Trey with needed medical

  attention, failed to thoroughly search his person, and fabricated

  records.

¶ 16   The district court granted the motions to dismiss, concluding

  that it lacked subject matter jurisdiction to hear the case. The

  court relied on the evidence from discovery in the federal case and

  did not hold an evidentiary hearing. First, the court found that the

  GCSO is immune from liability because Trey was undisputedly a

  convicted inmate who was incarcerated for a crime at the time of his

  death, the GCSO is immune from tort claims by convicted inmates,

  and wrongful death claims are wholly derivative of and dependent

  upon the claims that the decedent would have had. Second, relying

  on an assumption that Trey had swallowed a baggie containing a

  fentanyl patch, and defining “known risk” as the specific knowledge

  that Trey had swallowed a fentanyl patch, the court found that

  none of the individual defendants had acted with conscious




                                    7
  disregard for a known risk, and therefore their conduct was not

  willful and wanton.

¶ 17   The plaintiffs appeal each of these rulings.

                   II. GCSO Immunity Under the CGIA

¶ 18   Plaintiffs argue that because they are not convicted inmates,

  and they are the claimants, the GCSO enjoys no immunity from

  their wrongful death claim. We are not persuaded.

               A. Legal Authority and Standard of Review

¶ 19   The CGIA generally provides immunity for public entities from

  tort claims, including wrongful death. As relevant here, section

  24-10-106 initially immunizes the public entity against a wrongful

  death claim but generally waives the immunity in connection with

  the operation of a correctional facility or jail, and then limits the

  waiver with respect to claimants who have been convicted of a crime

  and incarcerated in a jail pursuant to such conviction, specifically

  restoring immunity to that jail in such situations. The statute

  provides, as relevant here:

             (1) A public entity shall be immune from
             liability in all claims for injury which lie in tort
             or could lie in tort regardless of whether that
             may be the type of action or the form of relief
             chosen by the claimant except as provided


                                      8
             otherwise in this section. Sovereign immunity
             is waived by a public entity in an action for
             injuries resulting from:

             ....

             (b) The operation of any . . . correctional
             facility, as defined in section 17-1-102, C.R.S.,
             or jail by such public entity;

             ....

             (1.5)(a) The waiver of sovereign immunity
             created in paragraph[] (b) . . . of subsection (1)
             of this section does not apply to claimants who
             have been convicted of a crime and
             incarcerated in a correctional facility or jail
             pursuant to such conviction, and such
             correctional facility or jail shall be immune
             from liability as set forth in subsection (1) of
             this section.

  Id.

¶ 20    Because CGIA derogates the common law, courts must strictly

  construe provisions that grant immunity, broadly construe the

  provisions that waive immunity, and strictly construe exceptions to

  waivers in favor of compensating victims. See Medina v. State, 35

  P.3d 443, 453 (Colo. 2001); see also Dempsey v. Denver Police Dep’t,

  2015 COA 67, ¶ 21.

¶ 21    Section 13-21-202 (the wrongful death statute) provides:

             When the death of a person is caused by a
             wrongful act, neglect, or default of another,

                                     9
            and the act, neglect, or default is such as
            would, if death had not ensued, have entitled
            the party injured to maintain an action and
            recover damages in respect thereof, then, and
            in every such case, the person who or the
            corporation which would have been liable, if
            death had not ensued, shall be liable in an
            action for damages notwithstanding the death
            of the party injured.

  (Emphasis added.)

¶ 22   Where, as here, the underlying facts are undisputed and the

  district court decided the jurisdictional issue as a matter of law, we

  review de novo. Medina, 35 P.3d at 452.

                              B. Application

¶ 23   The parties agree that Trey was a convicted inmate for

  purposes of the CGIA at the time of his death. Plaintiffs’ argument

  that the GCSO (a public entity) should not be immune from their

  suit turns on one word in the inmate exception to the immunity

  waiver for operation of a jail: “claimants.” However, we agree with

  the district court that the question of jurisdiction does not begin

  with a definition of the word claimants, but with an interpretation

  of the wrongful death statute.

¶ 24   A party is liable in a wrongful death action when the injured

  party could have “maintain[ed] an action and recover[ed]


                                    10
  damages . . . if death had not ensued.” § 13-21-202. Colorado case

  law clearly establishes that the right to collect damages in a

  wrongful death case is “dependent upon the right of action which

  the decedent would have had, had []he survived [the] injuries.”

  Pizza Hut of Am., Inc. v. Keefe, 900 P.2d 97, 102 (Colo. 1995); see

  also Steedle v. Sereff, 167 P.3d 135, 140 (Colo. 2007) (The right

  “does not arise from a separate tort, but instead is wholly derivative

  of the injury to the decedent.”).

¶ 25   When a decedent could not have maintained an action due to

  a different section of the Colorado Revised Statutes, the tortfeasor is

  not liable to the decedent’s heirs. See Sigman v. Seafood Ltd. P’ship

  I, 817 P.2d 527, 530-31 (Colo. 1991) (holding that where the

  decedent would have been prevented from suit under a dram shop

  liability statute, decedent’s heirs were precluded from bringing a

  wrongful death action). As in Sigman, the plaintiffs in this case can

  maintain an action only if Trey could have done so had his injuries

  not been fatal. Just as the dram shop provisions barred the

  decedent’s claims in Sigman, and thus the claims of his heirs, so

  too does the CGIA bar the claim of Trey’s parents in this case.




                                      11
¶ 26   Even granting narrow construction of the immunity

  provisions, and broad construction of the waiver provisions, we

  could not interpret section 24-10-106 to permit Trey to maintain an

  action for his injuries against the GCSO, had he survived his

  overdose. In short, under subsections (1), (1)(b), and (1.5)(a) of

  section 24-10-106, an injured party cannot sue a jail for a tortious

  injury unless the injury (in this case death) occurred in the jail and

  the injured (or deceased) party was not a convicted inmate.

  Because Trey was a convicted inmate, the GCSO was immune from

  suit for any injury to him, even if the injury was death. See

  § 24-10-103(2), C.R.S. 2019 (defining “injury” under the CGIA to

  mean “death, injury to a person, damage . . .”). Accordingly, his

  parents cannot pursue a wrongful death action against the GCSO

  for Trey’s death.

¶ 27   We affirm the portion of the district court’s order dismissing

  the plaintiffs’ claims against the GCSO, although we conclude the

  dismissal should be for failure to state a claim for relief under

  C.R.C.P. 12(b)(5).

             III. Public Employee Immunity Under the CGIA




                                    12
¶ 28   Plaintiffs contend that the district court erred in its analysis of

  the willful and wanton conduct of the individual defendants

  because it did not consider facts alleged in their complaint. We

  agree to a limited extent.

               A. Legal Authority and Standard of Review

¶ 29   Section 24-10-118(2)(a) provides limited sovereign immunity to

  public employees as follows:

             A public employee shall be immune from
             liability in any claim for injury, . . . which lies
             in tort or could lie in tort . . . and which arises
             out of an act or omission of such employee
             occurring during the performance of his duties
             and within the scope of his employment unless
             the act or omission causing such injury was
             willful and wanton . . . .

¶ 30   A public employee’s sovereign immunity is a question of

  subject matter jurisdiction. As our supreme court recently made

  clear, all issues related to an employee’s immunity, including

  factual issues such as whether a public employee acted in a willful

  and wanton manner, are to be determined by the district court prior

  to trial, pursuant to C.R.C.P. 12(b)(1). Martinez v. Estate of Bleck,

  2016 CO 58, ¶ 27; see Trinity Broad. of Denver, 848 P.2d at 924.




                                     13
¶ 31   For willful and wanton conduct to subject a public employee to

  liability for a tort claim, the conduct must be more than merely

  negligent; the conduct must exhibit a conscious disregard of the

  danger to another. See Martinez, ¶¶ 30, 32.

¶ 32   It is the plaintiff’s burden to prove that a public employee has

  waived the right to sovereign immunity. Gray v. Univ. of Colo. Hosp.

  Auth., 2012 COA 113, ¶ 15. However, “the burden is a relatively

  lenient one,” as there is no presumption of sovereign immunity, and

  plaintiffs “should be afforded the reasonable inferences of [their]

  evidence.” Tidwell v. City & Cty. of Denver, 83 P.3d 75, 85-86 (Colo.

  2003). “When the alleged jurisdictional facts are in dispute, the

  [district] court should conduct an evidentiary hearing and enter

  findings of fact.” Id. But the court may rule without a hearing

  when there is no evidentiary dispute. Id. at 86.

¶ 33   We will uphold the factual determinations of the district court

  unless those determinations are clearly erroneous. Medina, 35 P.3d

  at 452. However, when the court does not make findings of fact

  and decides jurisdictional issues as a matter of law, we review de

  novo. Id. at 452-53.




                                    14
                                 B. Application

¶ 34   The record supports a finding that Trey died after ingesting

  fentanyl. The record is not clear as to when, and in what manner,

  Trey ingested fentanyl. However, a finding of this fact is not

  dispositive to our analysis.

¶ 35   Of significantly greater import is the legal standard set by the

  district court’s interpretation that, for the individual defendants’

  conduct to be willful and wanton, Trey’s swallowing a fentanyl

  patch is “the danger” that must be consciously disregarded. With

  respect to almost all the individual defendants, the district court

  stated that there was no evidence the individual defendant “knew or

  should have known that Trey Duke ingested a fentanyl patch with a

  lethal dose of fentanyl.” 1 Based on that finding, the district court

  concluded the defendants’ conduct was not willful or wanton.

¶ 36   We conclude, however, that this level of specificity places an

  exceedingly high burden on plaintiffs, when instead the burden

  should be a lenient one because we must narrowly construe



  1With respect to Deputy Martinez, the court found that there is no
  evidence that she “had any knowledge of any of the drugs that Trey
  Duke had ingested, or that he was at risk of an overdose.”

                                      15
  statutes that grant governmental immunity. See Tidwell, 83 P.3d at

  85-86.

¶ 37   We are aware of no support for the proposition that a public

  employee’s knowledge of the specific cause of potential injury or

  death is required for the employee’s omissions to constitute willful

  and wanton conduct. To the contrary, knowledge and conscious

  disregard of a health danger to another is sufficient. See Peterson v.

  Arapahoe Cty. Sheriff, 72 P.3d 440 (Colo. 2003) (holding allegations

  that the defendants refused to take a beaten man, afraid of

  additional beatings, into custody was sufficient to plead a claim

  based on willful and wanton conduct); Gray, ¶ 41 (holding

  allegations that a physician provided inadequate staffing in an

  epilepsy monitoring unit sufficiently alleged willful and wanton

  conduct because it created “danger or risk” to patients’ safety); see

  also Estate of Goodwin v. Connell, 376 F. Supp. 3d 1133 (D. Colo.

  2019) (holding that allegations of the defendant’s failure to

  investigate claims of child abuse and manipulation of the complaint

  filing system were sufficient to show willful and wanton conduct

  and a conscious disregard of a serious risk, without a showing that

  the defendant expected the drowning of the ten-year-old child).


                                    16
  Accordingly, we conclude that the district court applied an

  erroneous legal standard.

¶ 38   The deputies knew that Trey had consumed multiple

  controlled substances, as revealed by his behavior and the DRE.

  However, the DRE examiner did not conclude that Trey was in

  danger of an overdose. A conscious disregard of a danger of

  overdose would constitute willful and wanton conduct.

¶ 39   We agree with the district court that for the individual

  defendants, other than Deputy Phillips, their conduct as alleged did

  not constitute a conscious disregard of a danger that Trey had

  overdosed. There is no evidence that Trey requested medical

  assistance at the time he was arrested, and, although the deputies

  requested that he submit to a blood test, he refused. The facts do

  not demonstrate that Trey’s behavior indicated he required medical

  attention until sometime after he was served breakfast —

  approximately sixteen hours after he was arrested. He was

  video-monitored during the first few hours of his confinement, and

  he was checked many times after he changed cells, even if some of

  the TCS entries are not supported by video evidence. At least

  through the time he was served breakfast, Trey was able to function


                                   17
  — walking, talking, eating, and sleeping. Although his movements

  were sluggish and uncoordinated, as one might expect from an

  intoxicated person, he never called for medical attention.

¶ 40   With respect to Deputy Phillips, however, plaintiffs have

  alleged some facts to support a finding of willful and wanton

  conduct. With record support, plaintiffs allege that when Phillips

  saw Trey that morning, he

          • knew that Trey had been arrested in an intoxicated state

            over seventeen hours earlier;

          • saw Trey in an odd position that caused concern to a

            trustee inmate familiar with Trey, and later caused

            Deputy Rupp enough concern that Rupp attempted to

            rouse him;

          • was alerted to the concern by the trustee inmate; and

          • walked away, saying, “That’s what you get for doing

            drugs.”

  Although Phillips denies (or does not recall) making that statement

  to the trustee inmate, a review of the security videotape shows that

  they had a brief exchange after Phillips removed the tray from the




                                   18
  cell. In addition, Phillips may have seen spilled food on the floor of

  Trey’s cell.

¶ 41    The district court did not address these specific allegations

  regarding Deputy Phillips in its order, and it did not make findings

  resolving the conflicting accounts of Deputy Phillips, Brandon

  Morse, and what appears in the video surveillance. Therefore, we

  cannot affirm its conclusion that there was no evidence showing

  willful and wanton conduct by defendant Phillips. We therefore

  remand this part of the case and direct the district court to conduct

  an evidentiary hearing pursuant to Trinity to determine whether it

  may exercise subject matter jurisdiction over plaintiffs’ claim

  against Deputy Phillips.

                          IV. Attorney Fees on Appeal

¶ 42    Defendants request attorney fees on appeal pursuant to

  section 13-17-201, C.R.S. 2019. The statute provides:

                 In all actions brought as a result of . . . an
                 injury to person or property occasioned by the
                 tort of any other person, where any such
                 action is dismissed on motion of the defendant
                 prior to trial under rule 12(b) of the Colorado
                 rules of civil procedure, such defendant shall
                 have judgment for his reasonable attorney fees
                 in defending the action.



                                       19
¶ 43   Under this section, an award of attorney fees is mandatory

  when a trial court dismisses an action under C.R.C.P. 12(b).

  Houdek v. Mobil Oil Corp., 879 P.2d 417 (Colo. App. 1994). A

  wrongful death claim is a claim for “an injury to person or property

  occasioned by the tort of any other person.” Id. at 424.

¶ 44   Section 13-17-201 provides for an award of attorney fees

  where “the defendant” moves for and is granted pretrial dismissal

  under Rule 12. Using “defendant” in the singular necessarily

  applies to each individual defendant against whom an entire action

  has been dismissed. See Smith v. Town of Snowmass Vill., 919 P.2d

  868, 873 (Colo. App. 1996). Because we have concluded that the

  district court properly dismissed plaintiffs’ claims against the GCSO

  under C.R.C.P. 12(b)(5), and against the former Sheriff and all of

  the deputies other than Phillips under Rule 12(b)(1), we must award

  attorney fees for successfully defending an appeal of those

  dismissed claims. See Henderson v. City & Cty. of Denver, 2012

  COA 152, ¶ 57. We remand to the district court to decide the

  amount of attorney fees.

                             V. Conclusion




                                   20
¶ 45   We affirm the district court’s dismissal of plaintiffs’ case

  against defendant GCSO for failure to state a claim upon which

  relief can be granted, and against Sheriff Richard Besecker, Deputy

  Ian Clark, Deputy Paula Martinez, Deputy Conner Udell, Deputy

  Megan Hollenbeck, Deputy Chad Roberts, and Deputy Brandyn

  Rupp for lack of subject matter jurisdiction.

¶ 46   We reverse the district court’s dismissal against Deputy Ryan

  Phillips and remand for further proceedings to resolve all remaining

  disputed factual issues and jurisdictional issues with respect to

  Deputy Phillips. We also remand the determination of the amount

  of appellate attorney fees.

       JUDGE DAILEY and JUDGE BROWN concur.




                                    21
