Robert E. BRESCIANI; Annette Bresciani; Shannon Minnerly and Melanie Minnerly, minor children, by and through their next friends, Robert E. Bresciani and Annette Bresciani, Plaintiffs-Appellees, v. William HARAGAN, Deputy with El Paso County Sheriff‘s Department; Les Milligan, Deputy with El Paso County Sheriff‘s Department; and Jim Catazaro, Deputy with El Paso County Sheriff‘s Department, Defendants-Appellants.
No. 97CA0806
Colorado Court of Appeals, Div. II.
Oct. 15, 1998.
968 P.2d 153
Less written notice may be accepted if the employee and appointing authority mutually agree.
State Personnel Board Rule R-9-1-2, 4 Code Colo. Reg. 801-1, then, allows a resignation to be withdrawn “at any time prior to 7 full working days before the set resignation date.” (emphasis supplied)
We agree with the ALJ that the latter rule contemplates that the resignation is to be submitted more than 10 working days before its effective date. However, if, as here, the parties agree under R9-1-1 that “less written notice” is to be given, so that the resignation becomes effective in less than seven working days after it is submitted, that agreement renders inapplicable the right to withdraw the resignation under R9-1-2.
The ALJ found, with record support, that complainant voluntarily agreed to make her resignation effective immediately so that she could begin to process her request for payment of the funds in her PERA account. Hence, such agreement effectively waived any right she might have had under R9-1-2 to withdraw her resignation.
Further, even if we were to assume that an appointing authority has the right to allow the withdrawal of a resignation that has already become effective, the ALJ here found that the refusal to allow the withdrawal was within the discretion of the appointing authority. Given the voluntary nature of complainant‘s resignation, the circumstances leading to that resignation, and the inapplicability of R9-1-2, that determination also has record support.
The Board‘s order is affirmed.
CASEBOLT and VOGT, JJ., concur.
Vaughan & DeMuro, Gordon L. Vaughan, Shelby Felton-Schnack, Colorado Springs, for Defendants-Appellants.
Opinion by Judge BRIGGS.
Defendants, William Haragan, Les Milligan, and Jim Catazaro, appeal from the trial court‘s denial of their motion under the Governmental Immunity Act,
This action arose out of the manner in which defendants, all officers in the El Paso County Sheriff‘s Department, executed a search warrant at plaintiffs’ residence. Plaintiffs alleged that defendants, in searching the residence, caused excessive and unnecessary damage to the premises and their personal property.
As pertinent here, defendants moved to dismiss all claims on behalf of plaintiffs Annette Bresciani, Shannon Minnerly, and Melanie Minnerly, as well as the tort claims of all plaintiffs. Defendants asserted that plaintiffs had failed to comply with the requirements of
Following an evidentiary hearing, conducted pursuant to C.R.C.P. 12(b)(1), the trial court concluded that the contents of the notice of claim substantially complied with statutory requirements. It therefore denied the motion to dismiss. In response, defendants filed this appeal.
I.
As an initial matter, while not raised by the parties, we have an obligation to determine our subject matter jurisdiction over this interlocutory appeal. See Gordon v. Gray, 19 Colo. 167, 34 P. 840 (1893); see also Sorensen v. Farmers Insurance Co., 191 Ariz. 464, 957 P.2d 1007 (Ariz.App.1997); cf. Denver Urban Renewal Authority v. Byrne, 618 P.2d 1374 (Colo.1980).
Because the parties had not directed their arguments toward that issue, we requested supplemental briefing. The parties filed briefs ostensibly addressing our jurisdiction to hear this appeal, but in fact both parties once again addressed only the merits of defendants’ argument that plaintiffs had not sufficiently complied with
In filing their appeal, defendants relied on
A.
Under
Section 24-10-109, C.R.S.1998, sets forth the requirements for the notice of claim. Under
The requirements for the content of the notice of claim are specified in
The notice shall contain the following:
(a) The name and address of the claimant and the name and address of his attorney, if any;
(b) A concise statement of the factual basis of the claim, including the date, time, place, and circumstances of the act, omission, or event complained of;
(c) The name and address of any public employee involved, if known;
(d) A concise statement of the nature and the extent of the injury claimed to have been suffered;
(e) A statement of the amount of monetary damages that is being requested.
Other subsections of
Finally,
In contrast,
B.
In City of Lakewood v. Brace, 919 P.2d 231 (Colo.1996), the supreme court recognized the distinction between the two kinds of immunity created by the Governmental Immunity Act. Of importance here is the court‘s
The defendants in Brace asserted immunity in their motion for summary judgment on the plaintiffs’ contract claims against the public entities and the tort claims against the public employees. The tort claims were premised on allegations that the public employees had engaged in willful and wanton conduct. The trial court denied the motion. It found that there were genuine issues of material fact both as to whether the public entities had breached the contract and as to whether the employees had acted in a manner that was willful and wanton.
The defendants immediately appealed the dismissal of the claims against the public entities. In Brace v. City of Lakewood, 899 P.2d 301 (Colo.App.1995), a division of this court dismissed the appeal for lack of subject matter jurisdiction. Defendants sought, and were granted, certiorari review in the supreme court.
In that review, the supreme court first noted that, under both
As to the claims against the public employees, the supreme court in Brace reached a different conclusion. It contrasted a public entity‘s immunity from suit for certain types of claims under
The initial question in this case therefore becomes whether defendants’ challenge under
C.
The supreme court in Brace relied in part on the holding in Trinity Broadcasting v. City of Westminster, supra, that the trial court is to act as the factfinder to determine “if the jurisdictional prerequisite notice provisions ... were satisfied.” City of Lakewood v. Brace, supra, 919 P.2d at 244. It would therefore appear that the notice provision in question here,
However, in Regional Transportation District v. Lopez, 916 P.2d 1187 (Colo.1996), an opinion issued a month before its decision in Brace, the supreme court had been asked to determine whether a premature filing of an action, in violation of another notice provision,
Based in part on “equitable considerations,” the supreme court concluded:
[T]he critical language of [§24-10-109(1)], that ‘compliance with the provisions of this section shall be a jurisdictional prerequisite,’ must be interpreted to mean ‘the provisions of this [sub]section,’ i.e., subsection (1), rather than the entirety of section 24-10-109.
More recently, in Brock v. Nyland, 955 P.2d 1037 (Colo.1998), the supreme court was asked to decide whether the filing of a notice of claim with the claims department of the Regional Transportation District (RTD) complied with
Of importance here, both the concurring opinions in Brock, as well as the dissenting opinion, reaffirmed and relied on the conclusion reached in Lopez. The reference in
Thus, the supreme court has twice concluded that, except for
D.
Initially, we note that in neither Brock nor Lopez did the supreme court address whether a trial court‘s determination concerning a challenge to a notice of claim was subject to immediate appeal. Brock involved the question how strictly
Further, the court in Lopez interpreted the reference in
Indeed, the notice issue addressed by the supreme court in Brock had been raised by RTD through an immediate appeal to this court. This approach is consistent with one of the basic purposes of the Act: to shield public entities and employees from being forced to trial or exposed to the other burdens of extended litigation, when the viability of the proceedings is dependent on the resolution of an essentially legal question. See City of Lakewood v. Brace, supra; see also Trinity Broadcasting v. City of Westminster, supra.
In addition, in neither Brock nor Lopez did the supreme court consider the language in
In requiring appeal after trial of this single immunity determination, the General Assembly and supreme court have recognized that in most cases the determination whether a public employee engaged in willful and wanton conduct is the very factual issue upon which the employee‘s liability ultimately turns. This issue, unlike others such as notice of claim, is not ordinarily “susceptible to resolution at an early stage in the litigation process before significant discovery has been undertaken.” City of Lakewood v. Brace, supra, 919 P.2d at 246. Further, when there is a genuine factual issue as to whether the public employee‘s conduct was willful and wanton, the Act is not undermined by subjecting the employee to the burdens of a trial on this single issue before permitting an appeal.
In contrast, the question whether the contents of a notice of claim sufficiently comply with the requirements of
Nor does the issue have to be “jurisdictional” in order to be subject to immediate appeal as a “final judgment.” While the trial court‘s order is clearly interlocutory, “the General Assembly does not consider ‘final judgment’ and ‘interlocutory order’ to be mutually exclusive terms.... Consequently, a statute‘s description of an order as ‘interlocutory’ ... does not necessarily preclude an immediate appeal of [an] order as a final judgment.” Industrial Claim Appeals Office v. Orth, 965 P.2d 1246, 1252-1253 (Colo.1998) (citing as an example
Finally, we are not persuaded to accept the alternative suggestion that the issue of the sufficiency of a notice of claim is one of sovereign immunity if asserted by a public entity, but not if asserted by a public employee. Such a construction of the statutory scheme would not only ignore the considerations just discussed, it would lead to further anomalous results.
For example, the public entity could immediately appeal a trial court‘s ruling that the contents of a notice of claim were sufficient, while the plaintiff and public employee would have to proceed through trial. Thus, the plaintiff would be forced to proceed simultaneously with the trial and the appellate proceedings. Furthermore, if the trial court‘s decision were reversed on appeal, the plaintiff and the public employee, but not the public entity, would have been forced to proceed through meaningless pre-trial and trial proceedings. Even if the decision were affirmed on appeal, the plaintiff would then be forced to proceed through a second trial against the public entity, in which the issues would be virtually identical to those involved in the first trial against the public employee.
For these reasons we conclude that, despite the supreme court‘s dicta in Lopez and Brock that treat only
II.
Defendants contend that, because plaintiffs’ notice of claim did not specifically identify any plaintiff except Robert Bresciani and did not specifically assert that defendants’ actions in conducting the search were willful and wanton, the notice was deficient. We disagree.
A.
As an initial matter, we must determine our standard of review. In doing so, we recognize that, as to questions of sovereign immunity, the trial court reviews the motion to dismiss under C.R.C.P 12(b)(1) and, thus, resolves disputed issues of fact. We are to review those findings of fact under the “clearly erroneous” standard of review, which is “highly deferential.” See Trinity Broadcasting of Denver, Inc. v. City of Westminster, supra, 848 P.2d at 925.
However, in this case the underlying facts are not in dispute. The only question is whether the notice of claim sufficiently complied with the requirements of
The standard of review in determining the sufficiency of compliance is not mentioned in Lopez or Brock. Nevertheless, in both cases the supreme court treated the question as one of statutory interpretation and apparently conducted review de novo. Further, in Swieckowski v. City of Fort Collins, 934 P.2d 1380 (Colo.1997), the supreme court expressly recognized that when the underlying facts are undisputed, the issue is one of law, and an appellate court is not bound by the district court‘s determinations. See also Johnson v. Regional Transportation District, 916 P.2d 619 (Colo.App.1995). We therefore conclude the question presented is one of law, which we are to review de novo.
B.
As earlier noted, a claimant must strictly comply with the 180-day requirement in
The notice requirements are intended to allow the public entity to conduct a prompt investigation of the claim, to remedy any problem, and to make adequate fiscal arrangements to meet any potential liability. Woodsmall v. Regional Transportation District, supra. The more general remedial purpose of the Government Immunity Act is to provide compensation to persons injured by public entities and employees. State v. Moldovan, 842 P.2d 220 (Colo.1992).
Here, the notice of claim stated in pertinent part that: “Mr. Bresciani‘s home and property were unnecessarily damaged and destroyed during a search” by defendants; defendants “caused extensive unnecessary damage to Mr. Bresciani‘s and his family‘s home and property“; “Mr. Bresciani and his family have suffered a violation of their civil liberties and extensive damage to their home and property“; and “Mr. Bresciani and his family are now considering filing a civil rights action.”
We recognize that, under the section captioned “Name and address of Claimant,” only Robert Bresciani‘s name and address are listed, and that the notice does not specifically reference willful and wanton conduct. The notice nevertheless gave the public entity the information necessary to conduct an investigation, to remedy any problem, and to make adequate fiscal arrangements to meet any potential liability arising from damage to property in the home by defendants.
In particular, the reference in plaintiffs’ notice of claim to “family” was sufficient notice to include any potential liability, not just to plaintiff Robert Bresciani personally, but also, at the least, his immediate family residing with him. And, by asserting that defendants had damaged and destroyed the residence unnecessarily, sufficient notice was given that the damage may have been caused by willful and wanton conduct. See Moody v. Ungerer, 885 P.2d 200 (Colo.1994)(willful and
Defendants point out that plaintiffs stated in discovery responses that some of the damaged property was owned by one of the plaintiffs’ parents, who did not reside in the house. However, the parents are not named plaintiffs. Hence, the question raised as to their property is not whether the notice was sufficient. Rather, it is whether any named plaintiff can recover damages for the destruction of the parents’ property. That issue is not before us.
Finally, we conclude the cases relied on by defendants, Smith v. Winter, 934 P.2d 885 (Colo.App.1997) and Conde v. Colorado State Department of Personnel, 872 P.2d 1381 (Colo.App.1994), do not require reversal, even if we were to concur in their holdings. In Smith, a division of this court concluded that a wife‘s claim for loss of consortium required a separate written notice of claim. In Conde, the division dismissed a “whistleblower” claim, to the extent it relied on claims of harassment and failure to promote, because the notice had not included any reference to such facts.
Unlike the notices in Smith and Conde, the notice here sufficiently identified plaintiffs and their address and included a concise statement of the factual basis for the claims in question. We therefore conclude, as did the trial court, that plaintiffs substantially complied with the notice of claim requirements of
The order is affirmed.
NEY, J., concurs.
CRISWELL, J., dissents.
Judge CRISWELL dissenting.
I am convinced that an action against a public employee under
Two sections of the Governmental Immunity Act (GIA),
Section 24-10-105 provides, simply, that no public employee shall be liable for injuries arising out of an act or omission during the performance and within the scope of his duties, except as otherwise provided in the GIA, “unless such act was willful and wanton.” (emphasis supplied) It also provides that no action may be brought against a public employee, “except in compliance with the requirements” of the GIA.
Section 24-10-118, then, is the statute that sets forth the “requirements” referred to by
On its face, then, if an action falls within the latter category,
However,
Section 24-10-118(2)(a), C.R.S.1998, provides that a public employee “shall be immune from liability” for an act arising out of his duties, except in two circumstances, as follows:
“no immunity may be asserted in an action for injuries resulting from the circumstances specified” in
§24-10-106(1), C.R.S.1998 , which is the statute that describes the various circumstances in which a public entity may be sued, andin those instances in which “the act or omission causing such injury was willful and wanton.”
Finally,
I do not suggest that these statutes are models for future legislative drafting. Indeed, the first proviso referred to in
First, the employee has general immunity from suit for acts or omissions undertaken within the course and scope of employment, except under those circumstances described in
However, the GIA also authorizes an action against a public employee based upon that employee‘s willful and wanton acts or omissions. And, if the employee has engaged in such acts or omissions, there is no immunity whether or not the acts or omissions occurred under the circumstances described in
Hence, the immunity of an employee with respect to an action based upon willful and wanton conduct does not implicate any question of “sovereign immunity“; it involves the employee‘s “qualified immunity” only. I conclude, therefore, that in an action of this type against a public employee, no issue of “sovereign immunity” is presented, and accordingly,
As noted, there are few supreme court decisions that are relevant to this question.
In Trinity Broadcasting of Denver v. City of Westminster, 848 P.2d 916 (Colo.1993), the action was instituted against the public entity alone; no question relating to an employee‘s immunity was presented. The same was true in Regional Transportation District v. Lopez, 916 P.2d 1187 (Colo.1996).
Further, in both Regional Transportation District v. Lopez, supra, and Fogg v. Macaluso, 892 P.2d 271 (Colo.1995), the trial court had dismissed plaintiff‘s complaint, resulting in a final judgment, so that the court had jurisdiction over the cause without reference to any special statute.
Finally, in the most recent case, Brock v. Nyland, 955 P.2d 1037 (Colo.1998), while both the entity and an employee were joined as defendants, there is no indication in the opinion that the employee‘s liability was
The only opinion that addresses the difference between the immunity granted a public entity and that granted a public employee is City of Lakewood v. Brace, 919 P.2d 231 (Colo.1996). And, while that opinion does not adopt the specific analysis set forth above, it is generally supportive, in my view, of my conclusions here.
In Brace, both a city and two of its managerial employees were sued, the latter in their individual capacities, under both federal and state law. The state law claims asserted against the individuals were based upon their alleged willful, wanton, and retaliatory acts.
The supreme court determined that, when such a claim is asserted, the public employee possesses only a “qualified immunity” under the GIA, which is lost if the employee‘s actions were willful and wanton. Noting that
My reading of that portion of the GIA dealing with the liability of and suits against public employees, in light of the opinion in Brace, leads me to conclude that, if the action against the employee allegedly arises from one or more of the circumstances described in
However, if the allegation is that the employee‘s actions were willful and wanton, no sovereign immunity issue is presented; only the employee‘s qualified immunity prevents the employee‘s liability. And, any pre-trial determination upon this issue does not involve a question of sovereign immunity. In suits of this nature, therefore, there is no right to an interlocutory appeal.
Here, the only basis for the employees’ liability is their alleged willful and wanton actions. And, because such allegations present no issue respecting sovereign immunity, I conclude that this court lacks jurisdiction to review the trial court‘s pre-trial rulings until a final judgment is entered.
For these reasons, I would dismiss this appeal for lack of jurisdiction.
STEVEN CRISWELL
JUDGE, COLORADO COURT OF APPEALS