Background
During a 2023 custody dispute involving Dustin Flesher and James Preston’s wife, Flesher testified that Preston was hostile, aggressive, and prone to violence. The custody court awarded Flesher primary custody of the child. Preston later sued Flesher for defamation based on that testimony and on emails, texts, and a voicemail sent to Preston, Preston’s wife, and district court staff.
Before the bench trial, Preston moved to hold Flesher in contempt and impose sanctions for allegedly threatening Preston’s mother-in-law to deter her testimony. The district court denied the motion without prejudice and declined to impose sanctions. Following the bench trial, the court entered a written judgment for Flesher on every defamation claim. Preston appealed, raising nine issues, but the Court of Appeals determined that only three were preserved.
The Court’s Holding
The Court of Appeals affirmed the judgment for Flesher. It held that the district court addressed Preston’s witness-tampering motion and did not abuse its discretion by denying contempt and sanctions. No order or rule barred Flesher from contacting witnesses, Preston said he did not plan to call the allegedly threatened witness, and any error concerning her testimony therefore caused no demonstrated prejudice.
The court also upheld the rejection of every defamation claim. Statements emailed only to Preston were not published to a third party, and the voicemail to Preston’s wife did not concern Preston. Flesher’s custody-hearing testimony was absolutely immune, as were his emails to the judge’s judicial assistant concerning the parties’ obligation to confer on a joint trial management certificate. The court held that the litigation privilege applied to those communications by Flesher as a self-represented litigant because they related to and furthered the pending litigation.
The remaining statements could not support liability. Preston presented no evidence of specific monetary loss caused by their publication, as required for defamation per quod. The only statement potentially implicating defamation per se—Flesher’s question about why Preston was “trying to harass” him at work—did not unmistakably accuse Preston of a crime because “harass” also has an ordinary, noncriminal meaning. The court declined to address Preston’s six other arguments because he failed to show where they had been preserved in the record.
Key Takeaways
- A statement communicated only to the person allegedly defamed is not published to a third party and cannot support a Colorado defamation claim.
- Absolute immunity protected both testimony in the custody proceeding and litigation-related emails to court staff concerning trial preparation.
- A defamation per quod plaintiff must prove specific monetary losses caused by publication; unsupported damage allegations are insufficient.
- Describing conduct as “harassment” is not defamation per se when the statement does not unmistakably impute criminal conduct on its face.
Why It Matters
The unpublished opinion applies Colorado’s litigation privilege to communications made by a self-represented party, reasoning that the decisive question is whether the statements relate to the litigation and further its objectives. It also illustrates the evidentiary distinction between defamation per se and per quod: ambiguous language requiring context is not defamatory per se, while a per quod claim cannot succeed without proof of special damages.
The decision also underscores the importance of appellate preservation. An appellant must identify where each issue was raised and resolved below; inaccurate or irrelevant record citations do not require an appellate court to search the record for preservation.