dissenting:
I dissent because I would affirm the court of appeals in Living Will Center v. NBC Subsidiary (KCNC-TV), Inc., 857 P.2d 514, 517 (Colo.App.1993), and remand for further proceedings. I agree with the majority’s exposition of the law concerning the actiona-bility of a claim for defamation. However, the trial court erred in denying the plaintiffs the opportunity to develop the factual predicate for their claim before ruling on the defendants’ motion to dismiss. Accordingly, I respectfully dissent.
The defendants filed a motion to dismiss that the trial court treated as a motion for summary judgment. Based solely on the complaint, the trial court ruled that the publication of the statement that the business was a “scam” as well as the statement that people were being “taken” were constitutionally protected opinions. As a result of this ruling, the trial court entered summary judgment for the defendants. The plaintiffs appealed and the court of appeals held that the trial court erred because: “The trial court dismissed the plaintiffs complaint solely on its conclusion that the broadcasts did not imply any statement of material fact susceptible of being proved false.” Living Will Center, 857 P.2d at 517. Accordingly, the court of appeals reversed and remanded for further proceedings.
In its answer brief to this court, the Living Will Center (LWC) asserts that the trial court entered summary judgment based on unsupported and incomplete assertions of fact and claims that it was denied the opportunity to establish the actionability of the claim. The majority dismisses this contention, however, because the issue was not presented to us for certiorari review. See Maj. op. at 7 n. 2. In my view, the adequacy of the record to support the entry of summary judgment is the first issue that must be resolved. The trial court’s entry of summary judgment when factual questions were unresolved was reversible error. See Civil Service Comm’n v. Pinder, 812 P.2d 645, 649 (Colo.1991) (stating that summary judgment is a drastic remedy and proper only when there is no genuine issue of material fact); Schuster v. Zwicker, 659 P.2d 687, 690 (Colo. 1983) (noting the discretionary authority to review cases under C.A.R. 1(d) notwithstanding the failure to preserve an issue); Jones v. Dressel, 623 P.2d 370, 373 (Colo.1981) (holding that summary judgment is a drastic remedy not available when there remain genuine issues of material fact).
In this case, none of the parties had the opportunity to address the issues relevant to the determination of the actionability of the defamation claim under the standards developed in Burns v. McGraw-Hill Broadcasting Co., 659 P.2d 1351 (Colo.1983). The factors identified in Bums that establish whether reasonable people would believe that the statement was one of fact, i.e., the phrasing, the context, and the circumstances surrounding the statement, all require evidence to facilitate the legal determination of the trial judge. Actionability requires review of the relevant evidence of the statement’s broader context. Here, the trial court stayed all discovery at the request of the defendants and did not consider matters outside of the pleadings. Therefore, the trial court denied LWC access to the defendants’ original unedited video and audio tapes, and deprived LWC of the opportunity to present affidavits, testimony, or other evidence. Although LWC appended several exhibits to its complaint, the pleadings were not enough to establish as a matter of law that the reasonable person standard set forth in Bums was met. For the reasons set forth in Justice Scott’s dissent, I also join his dissent. Because summary judgment precluded the plaintiff from establishing the constitutional foundation required in Bums, the court of appeals should be affirmed.
I am authorized to say that Justice KIRSHBAUM and Justice SCOTT join in this dissent.