COUNSEL:

Deutsch, Spillane, Reutzel & Foster, P.C., John M. Spillane, Denver, Colorado, for Plaintiff-Appellee and Cross-Appellant

Anderson, Dude & Lebel, P.C., Lawrence A. Hecox, Lenard Rioth, Colorado Springs, Colorado, for Defendant-Appellant and Cross-Appellee

Kelly, Haglund, Garnsey & Kahn, L.L.C., Lori Potter, Denver, Colorado, for Amicus Curiae SLAPP Resource Center

Opinion by JUDGE DAILEY

In this tort action for intentional interference with a contract, defendant, Eric Krystkowiak, appeals from a judgment granting his motion to dismiss but denying his request for attorney fees and costs. Plaintiff, W.O. Brisben Companies, Inc. (Brisben), cross-appeals the judgment dismissing the action. We affirm in part, reverse in part, and remand.

Brisben proposed to build an apartment complex on vacant land located directly across the street from Krystkowiak’s house.

Krystkowiak and his neighbors organized the Northeast Colorado Springs Neighborhood Association (NECSNA) to oppose Brisben’s project. Krystkowiak, an unpaid volunteer, was NECSNA’s Design Committee Chair and Spokesperson.

NECSNA alleged that Brisben’s project violated City of Colorado Springs zoning and planning ordinances. The city planning commission coordinated a mediation session between NECSNA, Brisben, and city staff.

Krystkowiak attended the lengthy mediation session on NECSNA’s behalf. While it is disputed whether the mediation resulted in an agreement between the parties, it is not disputed that at some point, NECSNA’s president signed a draft settlement agreement. Krystkowiak did not, however, sign the agreement, even though a separate line for his signature was provided.

Under the terms of the alleged agreement, Brisben was to make certain modifications to its proposed project and NECSNA was to discontinue its opposition to the project. However, Krystkowiak continued to appear before the city council on behalf of NECSNA in opposition to Brisben’s project. Ultimately, the city rejected Brisben’s proposed project because it did not comply with city code.

Thereafter, Brisben filed the present suit against both NECSNA and Krystkowiak for $16 million in damages. In its complaint, Brisben alleged that Krystkowiak’s continued opposition to the project, after NECSNA contracted to discontinue its opposition, constituted a breach of contract by NECSNA and intentional interference with the contract by Krystkowiak.

Claiming immunity from liability under the First Amendment to the United States Constitution and the Volunteer Service Act, § 13-21-115.5, C.R.S. 2001, Krystkowiak filed a C.R.C.P. 12(b) motion to dismiss for lack of subject matter jurisdiction.

In resolving Krystkowiak’s motion, the trial court utilized the analysis set forth in Protect Our Mountain Environment, Inc. v. District Court, 677 P.2d 1361, 1368-69 (Colo. 1984)(POME), whereby, "when confronted with a motion to dismiss predicated on the First Amendment right to petition the government," the motion is treated as one for summary judgment and resolved after giving the parties the opportunity to develop evidence material to specific First Amendment standards.

Here, after receiving and considering affidavits, depositions, and other evidence from the parties, the trial court granted Krystkowiak’s motion to dismiss based on POME. The court denied Krystkowiak’s request for attorney’s fees and costs under § 13-17-201, C.R.S. 2001, however, because POME requires that a motion to dismiss be treated as a motion for summary judgment. The court certified its decision for appellate review under C.R.C.P. 54(b).

I.

Brisben contends that POME is inapposite to its intentional interference claim against Krystkowiak because the claim stems solely from a contractual dispute. We agree.

In POME, supra, 677 P.2d at 1368, the supreme court recognized that "suits filed against citizens for prior administrative or judicial activities can have a significant chilling effect" on exercise of the First Amendment right to petition the government.

Nonetheless, the right to petition the government is not without limits; parties may, consistent with the First Amendment, contractually obligate themselves not to exercise their right to comment on matters of public concern. Cohen v. Cowles Media Co., 501 U.S. 663, 669, 111 S.Ct. 2513, 2518, 115 L.Ed.2d 586, 597 (1991). See Pierce v. St. Vrain Valley School District RE-1J, 981 P.2d 600, 604 (Colo. 1999)(parties imposed their own restrictions on their ability to speak publicly by signing settlement agreement). Where a party has thus contracted, POME protections are not applicable to immunize petitioning activity. See Duracraft Corp. v. Holmes Products Corp., 427 Mass. 156, 166, 691 N.E.2d 935, 942 (1998).

II.

Our conclusion that POME is inapplicable does not dispose of this appeal. Brisben’s suit proceeds upon the assumption that, as NECSNA’s agent, Krystowiak can be held personally liable for interfering with the alleged contract between Brisben and NECSNA. However, liability of this type appears to be the exception, rather than the norm.

Generally, an agent who induces his principal to breach a contract with a third party while acting in the scope of his employment cannot be held liable for intentional interference with that contract. See Cronk v. Intermountain Rural Electric Ass’n, 765 P.2d 619, 623 (Colo. App. 1988). See also Larry v. Penn Truck Aids, Inc., 567 F. Supp. 1410, 1416 (E.D. Pa. 1983)("The aggrieved party already has a claim against the corporate principal for breaching the [contract]. Where the individual agent of the corporation is acting in the best interest of his principal, nothing is gained by recognizing, in addition, a cause of action against the individual for inducing the breach.").

Only an agent who acts "improperly" may be liable to a third person for intentionally interfering with a contract between that person and the agent’s principal. Trimble v. City & County of Denver, 697 P.2d 716, 726 (Colo. 1985). See also Corporon v. Safeway Stores Inc., 708 P.2d 1385, 1390 (Colo. App. 1985). In this regard, an agent acts "improperly" by acting outside the scope of employment motivated solely by a desire to harm one of the contracting parties or to interfere in the contractual relations between those parties. Trimble v. City & County of Denver, supra, 697 P.2d at 726.

Examples of improper conduct by an agent, in this context, include usurping a corporate opportunity, Young v. West Coast Industrial Relations Ass’n, 763 F. Supp. 64, 77 (D. Del. 1991), aff’d, 961 F.2d 1570 (3d Cir. 1992); harassing or retaliating against a party to the contract, Zappa v. Seiver, 706 P.2d 440, 442 (Colo. App. 1985); retaliating against a party not for the benefit of the principal, Boers v. Payline Systems, Inc., 141 Or. App. 238, 243, 918 P.2d 432, 435 (1996); and acting with a spiteful, malignant purpose, unrelated to the legitimate corporate interest. King v. Driscoll, 418 Mass. 576, 587, 638 N.E.2d 488, 495 (1994).

Here, although Krystkowiak postured his motion to dismiss as one for lack of subject matter jurisdiction, see C.R.C.P. 12(b)(1), a motion to dismiss brought, as here, in connection with POME is really a motion to dismiss for failure to state a claim upon which relief can be granted. See POME, supra, 677 P.2d at 1368.

The determination whether Brisben failed to state a claim against Krystkowiak should have focused on whether Brisben adequately alleged that Krystkowiak acted outside the scope of his agency and solely with the intent to harm one of the contracting parties or to interfere in the contract.

While the trial court did not engage in such analysis, we see no need to remand the matter where, as here, we can resolve it ourselves as a matter of law. Cf. Norsby v. Jensen, 916 P.2d 555, 559 (Colo. App. 1995)(where trial court improperly treated motion to dismiss as a C.R.C.P. 12(b)(5), rather than a C.R.C.P. 12(b)(1), motion, reviewing court may, in appropriate circumstances, apply governing rule without remand).

In analyzing a C.R.C.P. 12(b)(5) motion, a court considers only those matters stated in the complaint, accepting them as true and viewing them in the light most favorable to the plaintiff. A court may not grant the motion to dismiss unless it appears beyond doubt that the plaintiff cannot prove facts in support of a claim that would entitle it to relief. Coors Brewing Co. v. Floyd, 978 P.2d 663, 665 (Colo. 1999).

In reviewing Brisben’s complaint, we see no allegation (nor, for that matter, any evidence subsequently submitted to the trial court), that Krystkowiak acted outside the scope of his agency with NECSNA, that he and NECSNA were in conflict with respect to his petitioning activity, or that he was motivated solely by a desire to harm Brisben or NECSNA or to interfere with their contract. Brisben alleged only that Krystkowiak continued to petition against its project despite his principal’s prior agreement to do otherwise.

Although Brisben argued, in response to the motion to dismiss, that Krystkowiak had a personal motivation to act, it failed to argue that Krystkowiak was "solely" motivated to harm one of the contracting parties or to cause a breach of their contract. See King v. Driscoll, supra, 418 Mass. at 587, 638 N.E.2d at 495 ("The motivation of personal gain, including financial gain . . . generally is not enough to satisfy the improper interference requirement.").

Brisben’s complaint, then, failed to state a claim against Krystkowiak. Cf. Cronk v. Intermountain Rural Electric Ass’n, supra, 765 P.2d at 623 (allegation that defendant acted intentionally outside the scope of his employment was sufficient to survive a motion for summary judgment); Boers v. Payline Systems, Inc., supra, 141 Or. App. at 243, 918 P.2d at 436 (allegation that defendant acted "for the improper purpose to retaliate against plaintiff" was sufficient to survive motion to dismiss).

Consequently, we affirm the trial court’s order of dismissal, albeit on other grounds. See Bengston v. USAA Property & Casualty Insurance, 3 P.3d 1233, 1236 (Colo. App. 2000)(appellate court will uphold decision by trial court that has reached correct result).

III.

In his appeal, Krystkowiak contends that the trial court erred by denying his request under § 13-17-201 for an award of attorney fees. We agree, but on grounds different from those upon which he relies.

Because Krystowiak’s C.R.C.P. 12(b) motion to dismiss, if properly postured, would have succeeded without a POME inquiry, he may be entitled under § 13-17-201 to a reasonable portion of his attorney fees. Consequently, we remand the case to the trial court to determine what amount, if any, would be reasonable under the circumstances.

Accordingly, that part of the judgment dismissing Brisben’s claim against Krystkowiak is affirmed; that part of the judgment denying Krystkowiak attorney fees is reversed; and the case is remanded to the trial court with directions to conduct further proceedings consistent with the views expressed in this opinion.

JUDGE NEY and JUDGE ROY concur.