*1 constitutionally is infirm legislation nal conduct
simply the offender’s because TRINITY BROADCASTING OF statutory proscrip- DENVER, INC., more than one violate Plaintiff- only when ‘the same conduct It is tion. Appellant, two statutes proscribed in different v. problems apply, that criminal sanctions WESTMINSTER, ” The CITY OF People v. equal protection.’ arise under Defendant-Appellee. (Colo.1983) Velasquez, 666 92SA113. People Taggart, 621 P.2d No. (citing Moreover, (Colo.1981)). the fact that Colorado, Supreme Court of statutory under prosecution, En Banc. scheme, as to the may exercise discretion March prosecute it under which wishes statute equal protec- the tenets of not violate does Rehearing As Modified on Denial of Hulse, People 192 Colo. tion. (Colo.1976). 1205, 1206 Ill passen- pointed shotgun
Torres moving automobile.
gers of Solorio a knife on two convenience store
pulled escape. Each know- to effectuate an
clerks possibly
ingly engaged acts that could
subject liability to criminal for disor- them
derly deadly weapon. How- conduct with a
ever, action was also each defendant’s required by the specific
much more than is
disorderly It does not vio- conduct statute. II, of the Colorado
late article section 25 subject the defendants
Constitution also liability the felo- potential criminal under menacing prescribes statute which more
ny specific crimi- penalties
severe for more Accordingly, we reverse
nal threat. declaring
rulings of the trial court
18-3-206, (1986),unconstitutional 8B C.R.S.
and remand the cases with directions menacing charges felony
reinstate
against the defendants. statute, general public because he not commit the more in fear serious but did member bodily injury. specific person specific placing act fear imminent The less another act objec-
waving public square in a in an bodily knife injury, not be he could imminent serious alarming perpe- tively manner would allow liability exposed potential criminal exposed possible liabili- to be trator ty criminal menacing felony statute. disorderly his conduct conduct under the *3 Mendenhall, Finger, D. William S. Robert P.C., Evergreen, plain- Finger, Frank & tiff-appellant. Mead, Brougham,
David R. Malcolm S. Evans, Denver, defendant-appel- Hall & lee.
Justice MULLARKEY delivered Opinion of the Court. Denver,
Trinity Broadcasting of Inc. (Trinity) grant- appeals the district court’s in summary judgment favor of the (Westminster) dismiss- City of Westminster ing Trinity’s claims under the Governmen- Immunity inverse condem- tal Act and for arising building nation out of Trinity allegedly and owned caused built leaking storage from water tanks by water operated by Westminster.1 We owned judgment of the court affirm the district respect to inverse condemnation and with concerning the judgment reverse its Gov- Immunity Act. also hold ernmental We requirement that the notice of the Govern- facially uncon- Immunity mental Act is not and that it is not unconstitution- stitutional on the limited applied al as based facts before us.
I. 1986, Trinity constructed a media cen- In building top of a hill at 9020 ter near the About Yates Street Westminster. hill, top of this Westmin- yards away at the 13-4-102(l)(b), Compare 6A tional § case transferred to this court issue. 1. We ordered this 180-day (1987) (court Trinity argued appeals jurisdic- that the has no because C.R.S. filing claims under the Governmental constitutionality limit for Immunity (1988 tion over cases in which the 24-10-109, Act, 10A C.R.S. 4—102(l)(b), question) is in and § a statute 13— unconstitutional, Supp.), violat- & (court (1992 appeals Supp.) has no appeal ing Trinity’s right process. This of due jurisdiction in which statute is de- over cases 1, 1992, July court of and the was taken before 1, 1992). unconstitutional) (effective July clared jurisdiction appeals the constitu- lacked over storage repair stopped cracking This work operates two water ster owns 1988, however, In for a while. December million tanks, has a three each of which and, cracking began April anew capacity. gallon 1989, Trinity Maury, hired Robert a soil it years three before be- In some engineer, investigate the cause of the construction, Trinity for a contracted gan In early May cracks. late building investigation of the subsurface Maury informed building’s that the The contractor found no free water site. distress occurred because of moisture recommended in a drilling samples but the soil which caused the sands in the soil building report that the November 1983 clays expand, to consolidate and the extending into the piers or caissons built probable source of that moisture pad constructed on a ground rather than was Westminster’s water tanks.2 *4 recommendation, This affidavit, foundation. Maury Trinity’s per- slab stated that September appeared surprised also made in of the sonnel which was probable firm, water tanks were cause of the year by an architectural William same building’s problems. structural Associates, by in 1985 E. & Skinner engineer, Raymond Stewart of Stewart soil 31, 1989, August Trinity On sent notice Inc., of the Engineering, was made because registered of claim to Westminster via mail Moisture in such particular soil involved. Immunity to the Governmental Act, high -120, create a risk of structural soil would sections 24-10-1 to 10A C.R.S. (1988 building. Supp.). September & 1992 On pad distress in a foundation 1989, Trinity complaint filed a in the dis- though report soil found no Even the 1983 alleging trict court breach of contract and soil, report free in the noted that negligence against compa- its construction building Trinity’s next to site the church firms, ny, geotechnical engineering archi- badly had heaved floors with differential tect, engineer.3 and construction On Feb- of as much as one inch. vertical movement 9, 1990, ruary Trinity filed its First Amend- recommendations, Despite Trinity these adding Complaint, ed claims West- its media center on a slab foundation. built Immunity minster under the Governmental Trinity’s employ- By October some alleging Act and inverse condemnation.4 cracking in the floors and walls ees noticed summary Westminster filed a motion for including building, of the at least one steel but, initially judgment which was denied pulling Trinity out of a wall. I-beam reconsideration, upon motion for cracking thought claims that it this granted. Trinity’s The trial court denied by settling a building was caused little subsequent for reconsideration. motion early Trinity more than normal. Trinity the other defendants dismissed company contracted with a called 3-D Pier- 41(a) by stipulation pursuant to C.R.C.P. investigate. Piering reported 3-D requested to enter an the trial court instability that there seemed to be some judgment Trinity final so that order of foundation, which, performing without prosecute appeal. judg- After could tests, thought it was caused entered, Trinity for a new ment was moved Piering soil. 3-D installed a compressing motion, trial. The trial court denied this piers building under the number of steel appeal.5 Be- filed its notice attempt to the foundation and stabilize issue of the consti- cause raised the spring tutionality period of section completed its work in the of 1988. of the notice per- previ- geotechnical engineering opinion 4. firm that 2. This seemed to be based on the investigation, soil Colorado dry formed report ous soil soil and the fact that all Soil, original a defendant in the was named as investigations hilltop of the area had other soil complaint, from the amended but was omitted groundwater. shown no complaint. engineer inspection made 3. The who the site ap- dismiss the 5. Westminster filed a motion to 1985 was not named as a defendant January peal appeals in the court of original complaint. summarily denied that court. which was 41(a)(1) Trinity purported rely case on Rule 24-10-109, transferred we ordered when it the construction dismissed defen- appeals pursuant here from the court dants. 13-4-110, (1987). urges ap-
Westminster
us to dismiss this
peal
the appeal
because it contends
II.
forty-five
should
filed within
have been
1, 1991,
days April
when
filed its
argues that
Initially, Westminster
41(a)(1)
argu-
Rule
notice. Westminster’s
Trinity’s
be dismissed as not
appeal should
because,
ment fails
once an adverse
timely
Westminster ar
Specifically,
filed.
or filed a motion
answered
for sum-
gues
Trinity’s dismissal
the other
judgment,
41(a)
mary
requires
Rule
41(a) con
pursuant to C.R.C.P.
defendants
stipulation
signed by
of dismissal must be
previous
court’s
verted the trial
action,
parties
appeared
all
who
judgment
favor into an
in Westminster’s
attorneys.
their
Neither
Westmin-
appealable
judgment. Westminster
final
attorneys signed
nor
the stipulated
ster
its
Trinity’s appeal should have
reasons that
41(a)(2) provides
dismissal. Rule
that ex-
forty-five days after it
been filed within
41(a)(1),
cept
provided
in Rule
“an action
filed
Rule 41 notice.
plaintiff’s
at the
shall
be dismissed
assertion,
Contrary to
C.R.C.P.
upon
instance
save
order
court and
*5
54(b)
present
apply to the
case
does not
upon such
and conditions
terms
as the
multiple parties were not involved
because
proper.” Because
court deems
Westmin-
after
construction defendants were dis-
the
stipulation
ster was
to the
not a
of
as
missed.
conceded much because
dismissal,
was not
pur-
the dismissal
done
it did
certification under Rule
not seek
41(a)(1), and, therefore,
suant to Rule
un-
however,
54(b).
may
apply.
Rule
well
41(a)(2),
Rule
of
der
a court order
dismissal
part:
Rule
in relevant
provides
necessary.
was
(a) ...
appears
Register
No court order
on the
28,1991
of
the
Actions until
June
order
(1)
may
action
be dismissed
...
[A]n
dismissing
prejudice
the case with
as to all
by
plaintiff without
of court
the
order
parties.6
juris-
We conclude
we have
upon
(B) by filing
...
payment of costs:
appeal. Accordingly,
diction over the
we
stipulation
signed by
a
of dismissal
all
appeal.
will address the merits of the
parties
appeared in
who have
the action
by
attorneys....
or
their
III.
(2)
Except
provided
as
...
subsec-
A.
Rule,
(a)(1)
tion
of this subdivision of this
an
the
claims, first,
action shall
be dismissed at
complaint
upon
plaintiff’s instance save
order of
stated a claim for inverse condemnation
upon
II,
court and
terms and condi-
Article
Westminster under
Sec-
proper....
tions as the court deems
tion 15 of the
Trin-
Colorado Constitution.7
peal
only delay
hearing
construction
C.R.C.P.
an inevitable
Westminster’s
would
merits,
41(a)(1)
trap
unwary.
appellant
only
a
for
need
would create
because the
ob
by
begin
support
The
tain a final order from the trial court
cases cited Westminster
of its
Here, however,
contention,
that,
again.
part,
such a
al
dismissal would
for
most
held
entered,
deny
hearing
though
appeal.
a
on the merits
a final order had not been
Such a
appeal
properly
appellate
construction of the rules would exalt
before the
court.
substance,
plead
form over
appellant
and technicalities in
The
construed in favor of
rule was
Jetco,
justice.
over
dismissing
appeal
pre
473 F.2d
See
order to avoid
as
(the
See,
Indus.,
liberally
C.R.C.P.
e.g.,
rules "shall be
con-
Jetco Elec.
mature.
Inc. v.
Gardiner,
(5th
1973);
just, speedy,
inexpen-
strued to secure the
Cir.
Dept. Health v. public proper purpose, taken property for a (Colo.1991). pay just compensation must the owner hold Trinity cites numerous cases which giving due property after the owner flooding, taking effected that a can be Const., II, 15; law. process of Colo. art. § *6 ground by per- of the by the saturation Const., V. While our state’s U.S. amend. Pumpelly Bay v. colating water. Green issue jurisprudence has not addressed the Co., (13 80 U.S. Mississippi Canal jurisdictions other squarely, cases from 166, (1872); Wall.) Cheyenne 20 557 L.Ed. a difference in kind suggest that there is 717, 729 Rogers, Bd. 707 P.2d Airport v. simple negligence on taking a between Irrigating (Wyo.1985);Brown v. Bessemer governmental entity. a For a part of Co., (1902); 1 286 Nel- Colo.N.P.Dec. Ditch taking, to result in a governmental action 164, Wilson, N.W.2d 239 Minn. 58 son v. consequence the action is al of which (1953); City v. Kansas 330 United States leged taking to be a must be at least 799, 885, Co., 94 70 Ins. 339 U.S. S.Ct. Life direct, probable result of that natural or (1950); Manigault Springs, 1277 v. L.Ed. States, F.2d Barnes 538 action. v. United 473, 127, 274 50 L.Ed. 199 U.S. 26 S.Ct. 871, (1976); 865, Hartwig 210 467 v. Ct.Cl. (1905). acknowledge the satu- We that States, 615, 619-20, 202 485 F.2d United flooding or land surface water ration of (1973); Transp. Department 801 Ct.Cl. of situa- groundwater, in the correct fact 394, Castillo, 395, Pa. A.2d 14 321 v. tions, taking property. can effect a of Therefore, (1974). taking 22 Cmwlth. However, present case is not such conse reasonably foreseeable must be situation. action. In other quence of authorized in words, must government question, these The threshold act or to do an facts, property claim to take the Trinity has stated a tent is whether (Colo. 1993); v. Colorado prohibits 175 Troiano Although both the the constitution 484, 487, private taking damaging property with Dep’t Highways, Colo. 463 170 just whether compensation, 448, (1969). the issue of out 450 "damaged” Trinity Broadcasting's property was thoroughly just compensation was due not Another, framing ques- way precise less conclude, reviewing rec We after briefed. governmental instrumen- be whether tion authority, Trinity's build and relevant ord through negligence. taking tality can effect a II, “damaged” ing not Article sense of City Northglenn Grynberg, Section 15. See v. 922 act, consequence way of tak in such a the natural natural conse-
which has the its acts in a quence taking would result Sun Co. v. United property. Oil 786, Trinity’s media 716 of center because Westmin- States, 215 Ct.Cl. F.2d 572 States, water soil 411 ster’s saturated the beneath that (1978); Henry v. United J.J. building. (1969); 1246,1249, Sayre 188 39 Ct.Cl. F.2d States, F.Supp. 185 282 v. United B. (N.D.Ohio 1967); Biggs v. Unit Rental Co. States, F.2d 173 Ct.Cl.
ed
353
Second, Trinity claims that its notice to
(1965);
789
B
v. United Westminster,
Amusement Co.
Governmen-
386, 389,
States,
F.Supp.
148
337
180
Ct.Cl.
Immunity Act,
24-10-109(1),
tal
(1960).
authority
is also
(1988
There
Supp.),
&
time-
negligence
cannot be
proposition
Because the
ly.
trial court neither fol-
taking.
v.
Ass’n
proper
basis of a
PDTC Owners
procedure
employed
lowed the
nor
Dist., 443
Valley County
legal test,
Water
proper
Coachella
reverse
we
and re-
(C.D.Calif.1978);
F.Supp.
proceedings.
Colum-
for further
mand
States,
bia Basin Orchard
United
24-10-109(1)provides, in
Section
relevant
(1955).
707, 710, 132
F.Supp.
Ct.Cl.
part:
present
Trinity complains
In the
Any person claiming to have suffered an
to leak
that Westminster allowed water
injury by public entity
an employ-
Al-
tanks or
mains.
from its water
water
thereof
ee
while
the course
negligence
though
alleging
employment
shall file a written no-
...
claim,
provided
its inverse condemnation
tice
this section within one
eighty days
hundred
after the date of the
water mains do not leak to the
tanks and
discovery
injury, regardless
of the
a leak will cause foundation
extent
person
then knew all of
whether
building
away in the
yards
to a
elements of a
or of a
claim
cause of
negligent operation
or mainte-
absence
injury.
for such
action
negligent
authority,
some
nance. Under
See,
taking.
can result in a
maintenance
notice must contain the name and
Such
Monica,
e.g.,
City
public
McMahan’s
Santa
of the claimant and the
address
em-
Cal.Rptr.
involved,
Cal.App.3d
known,
582 ployee
if
as well as a
(1983) (in
city’s
light
knowledge
statement
factual
concise
of the
basis of
mains,
and the
extent
grossly
life of water
inade-
the claim
nature and
limited
*7
suffered,
to
injury claimed
have been
and a
quate
program
maintenance
was deliber-
monetary
the
statement of
amount of
dam-
taking, re-
planned
constituting
act
a
ately
24-10-109(2)(a)-(e).
ages
requested.
main).
from broken
As
sulting
§
mailing.
upon
Notice is effective
24-10-
however,
illustrates,
simple
§
McMahan’s
109(3). The term “injury” is defined in the
enough.
has been
negligence is not
There
as:
statute
in
showing
no
this case that Westminster
death,
negligent
injury
person,
raise its
to a
to or
grossly
was so
as to
kind,
being
property,
loss of
of whatsoever
conduct to
deliberate.10
which,
person,
by
private
if
a
inflicted
that
has not shown
We conclude
in
lie in
would lie
tort or could
tort re-
of fact in its
that there is
triable issue
the
gardless
type
of whether that
be
claim for inverse condemnation. Civil Ser-
by
action or the
of relief chosen
of
form
645,
Pinder,
P.2d
649
vice
v.
812
Comm’n
a claimant.
(Colo.1991);
Continental Air Lines
(1988).
24-10-103(2), 10A C.R.S.
§
708,
Keenan,
(Colo.1987).
731
712-13
Here, Trinity
not show
evidence that
mailed notice Westmin-
Trinity did
act,
August
intended
or refused to
on
1989.
issue is
Westminster
ster
Trinity argues
tanks
Although
did
should have known that the
or the
that Westminster
ster
mains,
tanks,
events,
gauge
of
and
not
the amount water in the
in the normal course of
would
mains
tanks for leaks
they
did not test the
or the
point that
have deteriorated to the
would
Trinity gave
notice
until
Westminster
of
leaking in
be
1987 or 1988.
claim,
been no
there has
evidence that Westmin-
inju-
“discovery”
the
Act’s use of the
when did
...
term
the
“diseover[ ]
injury implicates
context of tortious
ry.” Trinity argues
it discovered the
the
1989, “discovery
provides
rule” of
law which
injury
May,
tort
early
in late
of
that a statute
limitations does not
engi-
start
Maury,
geotechnical
when Robert
plaintiff
run until the
time when the
Trinity,
by
neer hired
discovered free water
or, through
knew
the exercise
reason-
and
soil under
around
build-
(or,
diligence,
able
should have known
al-
ing
Trinity that,
informed
profes-
in his
and
ternatively,
should have
discovered or
dis-
originated from
opinion,
sional
such water
covered),
the wrongful
Compare
act.
argues,
the
water tanks. Westminster
(5th
1979)
Dictionary
Black’s Law
ed.
contrary,
discovered
(“The ‘discovery
is, generally,
rule’
October,
September
injury either
malpractice
cause of action for medical
will
Riddle,
engineer
James A.
chief
when
knows,
patient
not
held to accrue until
operations supervisor
and
for the
station
or,
diligence,
in exercise of reasonable
Center,
Trinity Media
first
crack-
observed
alleged malprac-
known
should have
of the
building,
in the floors
walls of the
tice.”)
Dictionary
with
Law
Black’s
or,
alternative,
December,
(6th
1990) (“Under
rule,’
‘discovery
ed.
when,
repairs were
to the foun-
after
made
malpractice
limitation statute in
cases does
dation,
began
again.
appear
such cracks
run, i.e.,
not start
the cause
action
Immunity
Act
Governmental
accrue,
discovery
does not
until the date of
non-
is not a tort accrual statute.
It is a
when,
malpractice,
of the
or the date
statute, raising jurisdictional
if
claim
bar
diligence,
care and
exercise
reasonable
given
applicable
notice is
within the
patient should
discovered
have
24-10-109(1);
period.
time
Barrack
§
act.”).
wrongful
The statutes
limitation
(Colo.1993);
City Lafayette,
Trinity argues (in by sovereign jury must The terms which improper ment because case, subdivisions) concerning political state and its of fact contested issues decide period began strictly sued must fol- 180-day time consents to be when part they juris- and hold that the “define court’s disagree lowed since run. We [the] factfinder on jury is the trial court not the diction to entertain suit.” United However, summary judg 596, 608,110 Dalm, the notice issue. 494 U.S. S.Ct. States proper (1990)(citations because this case 1361,1368,108 ment was not L.Ed.2d 548 pursuant decided omitted). sovereign should have been forced cannot be 12(b)(1). There is a factual dis prerequisite C.R.C.P. jurisdictional to trial if a concerning when parties pute Thus, between our not been met. statute injury and an eviden- Trinity discovered its general principles consistent with necessary hearing to resolve tiary is immunity, sovereign the trial court is the dispute. pretrial determines in the factfinder which context whether satisfied the 180- jury is not the conclusion Our provision. day notice question is on the notice based factfinder Having principles rejected claim that fact general on the statute public entity questions regarding notice must be decided sovereign immunity. When a timely by jury, we will consider next whether trial that notice was claims before properly the trial court decided the matter given to it under the Governmental Act, judgment conducting the finder without Immunity the trial court is evidentiary hearing. of timeliness of notice of fact. The issue by the determined trial must be before A motion to dismiss for lack court, by not reserved for determination jurisdiction governed by is subject matter sovereign immunity jury at trial. The 12(b)(1). of Rule C.R.C.P. Our version raised answer as West- defense can be 12(b)(1), 12(b)(1)is identical to Fed.R.Civ.P. pursu- did or motion to dismiss minster 12(b)(5) identical to Fed. and C.R.C.P. 12(b)(1) (lack subject ant to C.R.C.P. 12(b)(6). Accordingly, we look to R.Civ.P. Depending on the jurisdiction). matter guidance in constru federal authorities for case, may allow limited dis- the trial court Court, ing our rules. Lucas v. District evidentiary hearing covery and conduct an 510, 517, 140 Colo. deciding the notice issue. before (1959). If the motion is a factual attack on legislature characterized the notice jurisdictional allegations of the com 24-10-109 of the Governmental plaint, as the timeliness of the notice Immunity jurisdictional prerequi- as a Act may involved in this the trial court Moreover, Assembly pro- the General site. any competent pertaining receive evidence that issues of in section 24-10-108 vided motion. 2A James W. Moore & to the See sovereign immunity are to be decided Lucas, Desha Moore’s Federal Practice Jo if trial. The the trial court raised before ¶ (2d 1992). at 12-47 ed. Fed. 12.07[2.-1] portion of section 24-10-108 in relevant 12(b)(1)differs from Fed.R.Civ.P. R.Civ.P. this case arose stated: effect when (motion 12(b)(6) for failure to to dismiss public entity If raises the issue of claim) a trial court state a because immunity prior to or immedi- sovereign consider evidence to Fed.R.Civ.P. ately the commencement of discov- after 12(b)(1) converting the motion to a without suspend discovery, ery, court shall summary judgment motion as it would be discovery necessary to decide except any if matters out required to do it considered *9 sovereign immunity, and the issue of pleadings a Fed.R.Civ.P. side the under on motion. shall decide such issue 12(b)(6) Fed.R.Civ.P. motion. Under 12(b)(1): (1988). 24-10-108, a Unless § exis- Any dispute upon which the complies statutory the re- factual plaintiff with notice, may turn is for the jurisdiction tence of including sovereign im- quirements, alone, jury not a to determine. public court and munity entity suit for bars
925 12(b)(1) of such a factual deter- to the record before us as review the Appellate clearly Appeals applied erroneous basis. Tenth Circuit Court of is on mination corresponding federal rule Cizek. No “clearly stan- The erroneous” Id. 12-49. necessary. remand would be under Fed. appellate review dard of 12(b)(1) from the greatly differs However, R.Civ.P. we are to do so. unable The used if a Fed. appellate review standard record shows that moved Westminster 12(b)(6) to a motion is converted 5, R.Civ.P. summary judgment on November 1990. under Fed. summary judgment motion issues, Among other it claimed that summary judg- test for 56. The R.Civ.P. given by untimely Trinity notice was under stringent gives every very ment is Immunity Act. the Governmental West- non-moving the inferences to the benefit of Trinity minster asserted that discovered its (here, Trinity).11 By con- party plaintiff injury in the fall of it 1987when discovered trast, 12(b)(1), plain- under Fed.R.Civ.P. building. structural West- jurisdiction to prove tiff burden supported minster its motion with docu- is appellate and the standard review deposition testimony. Trinity ments and As Third Circuit highly deferential. opposition filed a on November brief Appeals Court of stated: Trinity contended “that water was 12(b)(1), “free to Rule the court is Under problem, as the identified source of satisfy itself as weigh the evidence and water, as the Westminster source power its hear the existence of May that late of 1989” and contrast, In a Rule case.” ... because given to within 180 days was Westminster 12(b)(6) in a determina- motion “results Trinity supporting of that time. submitted early stage merits at tion on the argued that when affidavits plaintiff plaintiffs is afforded of its injury knew or should have known allega- safeguard having all its disputed issue of fact. trial true inferences tions taken as and all court, agreeing Trinity, with found there plaintiff favorable to will be drawn.” disputed material fact and were issues of summary denied Westminster’s motion Boyle & v. Governor’s Veterans Outreach 6, 1990. judgment on December Center, (3d 925 F.2d 74 Cir. Assistance 1991) omitted). (citations Westminster moved for reconsideration 10, 1990, ruling it December present case is clear of the court’s on oppor- arguing matter that it had denied the trial court should have treated this been subject tunity reply and that as a to dismiss for lack of to submit brief motion 12(b)(1). disputed under no issues material jurisdiction matter C.R.C.P. there were States, (10th issue, respect the notice F.2d 1232 fact. With Cizek v. United Cir.1992) that “waited (question whether notice was conceded Westminster years why it under Tort than two to find out properly given Federal Claims more having structural difficulties” but claimed properly Act is handled under Fed.R.Civ.P. 12(b)(1), point” “factual was irrelevant. judgment not as that 18, 1990, 56). dated proceeded By Instead it un- an order December Fed.R.Civ.P. granted summary judg- court Westminster’s motion concerning der C.R.C.P. 56 trial granted sum- all the and also ment. If we were satisfied that for reconsideration It found mary favor. presented judgment had been relevant evidence court, injury “sometime apply we could C.R.C.P. discovered its trial met, judgment remedy has been "Summary is that initial burden a drastic but after showing except nonmoving party a clear never warranted burden of establish- bears the genuine exists no issue as to there of fact. there is a issue Id. triable moving party is enti- Keenan, material fact and that tled Airlines, (citing Inc. v. Continental judgment law.” Mancuso as matter of (Colo.1987)). nonmoving P.2d Pueblo, v. United Bank all inferences receives favorable (Colo.1991) (quoting Churchey Adolph Coors undisputed reasonably drawn facts. from Co., (Colo.1988)). The P.2d 1339-40 Tires, Big Tapley (quoting O Id. v. Golden showing moving party has the initial burden of (Colo.1983)). fact, genuine material that there is no issue of *10 926 reconsideration, Trinity asked for a not- The trial court May of 1989.”
around present argument. oral hearing to added as a defen- was ed that Westminster 1990, 9, from these February and on dant obvious conflict There is an between that the facts, concluded the trial court two 18, court's orders December 1990 trial Apparently the trial untimely. notice was 28,1991 regarding Trini- January when Immunity the Governmental court misread order, injury. its In the first ty discovered to filed within requiring suit be Act as injury held that the had been the trial court injury discovery of when days of the May in 1989 and in the second discovered only that written requires Act injury that the was dis- order it concluded peri- that time entity given within public be given early in 1988. The notice covered od.12 timely under the first have been would ruling untimely under the second. The motion for re- but Trinity filed its own then 26, change for its of dis- It trial court’s rationale 1990. on December consideration covery dates is unclear. It is uncertain given written notice that it had pointed out what, any, gave if effect the trial court letter mailed by registered to Westminster 31, regarding Trini- Westminster’s concession August received by Trinity on 6, discovery injury. its The concession ty’s September on 1989. by Westminster ambiguous but it itself is somewhat Thus, timely notice was Trinity contended the basis for the trial court’s have been days May 1989 which given within 19, finding in its 1990 order that December the time trial court had found injury May in Trinity discovered its injury was discovered. when Certainly parties regard- were confused in analysis its December The trial court’s ing party proof which bore the burden of clearly wrong. If Trini- 1990 order was discovery and what was the test for May ty injury discovered its in 1989 as the circumstances, injury. Under the the trial found, Trinity’s notice trial court then was hearing have held a as re- court should court, timely Trinity alleged. The trial parties. hearing quested by the Such however, Trinity’s denied motion for recon- permitted development the full would January sideration in an order dated record and determination of of a factual rejected previous finding 1991. It proper legal applied. test to be May Trinity injury discovered its Trinity’s claims are based on con epi- and held that there were two earlier by migration tinuing trespass caused early sodes December water from Westminster’s water tanks or when knew or should have known Trinity’s property. Trinity mains to water injury. The first occurred when the of its injured when the entered its was building experienced serious structural injury property and that could have been damage happened and the second when the discovered if soil tests had shown an abnor damage repairs reoccurred after extensive present Trinity’s mal amount of water had been made. The court concluded that Rather, discovery soil. No such occurred. injury in early discovered its parties agree injury was mani given August and the notice on fested structural untimely. grant It reaffirmed the building. question is when summary judgment in Westminster’s favor. knew or should have known that the build evidentiary hearing argument No or oral damaged by the tortious act of was held this case. In its December naturally occurring another rather than a reconsideration, 1990 motion Westmin- phenomenon pre-existing such as soil condi opportunity present ster asked for the tions. legal the court “with a full and fair background” factual Immunity relevant to its motion. Act Governmental Similarly, in permit injured its December 1990 motion ignore does not fact, 27, 1990) ninety days passed an action under the Act cannot be cember has after notice, public entity filing commenced until either the whichever occurs first. § 24-10- (which (1988). 109(6), denied the claim occurred here De-
927
process challenge to
provi-
due
the notice
which
cause
reasonable
evidence
would
unavailing.
is
sion
she
to know that he or
has been
person
by the tortious conduct
another.
injured
remanding
Because we are
this case for
places a burden on
period
Act’s notice
trial
Trinity
court to determine when
determine
cause of
injured
to
injury, it
premature
discovered its
would be
govern-
injury, to ascertain whether
Trinity’s argument
to address
that the 180-
entity
employee
public
mental
or
is
day
period
notice
was unconstitutional as
cause,
governmental
to
enti-
notify
injury
to
applied
it if the
discovered in
days
180
the time when the
ty within
from
early
Trinity’s
We will address
con-
Thus,
in this
injury is discovered.
period
tention
the notice
is unconstitu-
postponed
discovery
not
until
date of
as
to it
applied
discovery
tional
unless
Trinity knew or should have known that
injury
happened
is deemed to have
of trespassing
was the source
Westminster
early May
late
or
1989. That is the
trigger the
enough
It is
notice
engineer,
water.
Maury,
time when its soil
Robert
if
period
Trinity knew
should have
Trinity
groundwater
informed
that excess
damage
building’s
known
structural
caused the
structural
building resulted from an abnormal amount
and that
Westminster’s
tanks were
ground
possible
of water
soil.
of that
source
water.
position
180-day
period
is that
notice
remand,
court should
On
the trial
handle
it
begin
cannot
to run until
discovered
12(b)(1)
this issue under
Rule
conduct
injury
identity
cause of
and the
its
proceedings
further
be neces-
likely
Assuming,
tortfeasor.
de-
without
sary
gave
to determine whether
ciding,
Immunity
that a Governmental
Act
timely
notice Westminster under the
process
claimant
have a
would
valid due
Immunity Act.
Governmental
challenge if it showed that it had insuffi-
opportunity
gather
cient
the information
C.
comply
needed to
with the Act's notice
provision,
reject Trinity’s argument.
we
Finally, Trinity argues that the no
proving
bears
burden of
be-
24-10-109,
provision of
10A
tice
yond a reasonable doubt that
the notice
(1988), is
C.R.S.
unconstitutional as viola-
provision
applied
is unconstitutional as
process
due
of law.
tive of
does
24-10-109(2),
it. Under section
a notice
appear to
it has
argue
not
been de
must set
following:
forth the
prived
procedural
process,
due
but rath
(a) The name and address of the claim-
right
judicial
that its
er
to obtain
resolution
ant
name and
and the
address of his
dispute involving
public entity
of a
any;
if
attorney,
been violated.
(b) A concise statement of the factual
Comm’rs,
County
Evans Board of
claim,
date,
including
basis of the
97,
968,
105,
(1971),
P.2d
174 Colo.
time,
act,
place, and circumstances of the
recognized
Assembly
we
that the General
omission,
of;
complained
or event
sovereign
restore
has the discretion to
(c)
any public
The name and address of
immunity
part,
in whole or in
governmental
involved,
known;
employee
if
place
upon
limitations
the actions that
or to
(d)
nature
A concise statement of the
brought against the state
may be
injury
the extent
claimed
Because, as we have said
subdivisions.
suffered;
have been
times,
period rationally
notice
many
(e) A statement of the amount of mon-
interest,
legitimate
state
furthers
Uberoi
etary damages
being requested.
that is
Colorado,
University
713 P.2d
(Colo.1986);
Regents
Fritz v.
v. Regional
In Woodsmall
Trans
1990),
Colorado,
District,
(Colo.
University
196 Colo.
800 P.2d
portation
“compli
338-39,
(1978); Antonopou
we discussed what constituted
There,
requirement.
Telluride,
ance”
187 Colo.
with the
v. Town
los
compliance
we held that absolute
(1975),
a facial
349-50
*12
665 P.2d at
we also stated that “sec-
compliance
necessary
that substantial
but
24-10-109(1)
ag-
may tion
does not allow an
requirement
The notice
is sufficient.
grieved party to wait to file its action until
are
if certain elements
satisfied even
be
out,
all of the elements of the claim mature.”
set
missing
precisely
or are not
hold,
implied,
We
as we now
that a
Id.
injury and the
nature of the
as the exact
diligence
plaintiff
duty
has a
of reasonable
monetary
of the claim. Such
value
exact
to determine the basic and material facts
may
excused when the
of detail
be
lack
underlying
potential
gov-
claim
a
a tentative nature
condition is of
claimant’s
entity.
ernment
prognosis is unavailable.
and a definitive
that,
days of the
within 180
It is immaterial
us,,
ap-
From the information before
it
injury, Trinity
not
discovery of its
Trinity
diligent
not
all
pears that
at
and ex
precisely the “nature
have known
April May
or
Four months
prior to
1989.
actually
injuries”
suffered
tent of the
passed by
explanation while Trini-
without
building
the exact amount of dam
or
ty
engineer
failed to hire an
or take other
good faith
ages.
required
All that is
is “a
steps
investigate
to
the cause
appropriate
notice,
to the
effort to include within
cracking.
engineer
of the foundation
reasonably
is
able to do
extent the claimant
completed
investigation
his soil
in
about
so,
in sec
each item of information listed
month, but, again
explanation, four
without
24-10-109(2).” Woodsmall, 800 P.2d
tion
passed
Trinity
more months
before
notified
69.
at
leaking
it
Westminster that
believed that a
water tank or water main caused the build-
in
Trinity relies on our decision
State
problems.
ing’s foundation
(Colo.1983),
argu-
in
P.2d 108
Young, 665
180-day
period should
ing that the
notice
Trinity
proved beyond
has not
a reason-
Maury
begin
to run until
informed
requirement
that the notice
is
able doubt
Trinity that there was water in the soil and
applied
unconstitutional as
to it
it
because
appeared
come from
that it
to have
West-
could not have discovered information to
In Young
minster’s water tanks.
we held give
timely
notice of claim
Westminster
opportu-
24-10-109(2)
“that there must be
reasonable
in terms of section
sufficient
nity
prior April May
for a claimant to discover the basic
to
1989.
underlying
claim
and material facts
be-
IV.
statutory
duty-bound
give
she is
fore
24-10-109(1).”
required by
notice
section
Trinity did not
a claim for
Because
state
Young,
chey,
summary judgment
above,
is
filed
determining whether
the fact that it
a motion
give
party
court must
appropriate, a
summary judgment,
consequently
ac-
the benefit of all
opposing
judgment
cepted
showing
the added
a lack
burden
be drawn
favorable inferences
issue in a context
triable factual
in the record.
contained
from
facts
Trinity’s
allegations
where
uncontroverted
1340;
Churchey,
Kaiser
presumed to
true should not
must be
Sharp, 741 P.2d
Plan v.
Found. Health
concluding
dis-
provide a basis for
(Colo.1987).
714, 718
motion as
trict court’s resolution
contrast,
question
view,
is raised as
my
when
filed
in error.
In
it
subject
court
particular
to whether
entirely proper
that court to consider
action, it
jurisdiction over an
matter
genuine
fact
whether a
issue material
that bears the
asserting jurisdiction
compliance
with the
existed as
establishing
ex
jurisdiction
burden
provision
under a standard
statute’s
Air Force
Reynolds
Army
*14
ists.
have
more favorable to
than would
746,
(Fed.Cir.
Serv.,
F.2d
748
Exch.
846
applicable
been
had the court resolved
al.,
1988); 2A
Moore et Moore’s
W.
James
Here,
12(b)(1).
pursuant to
issue
C.R.C.P.
¶
(2d
12.07[2.-1], at 12-46
Federal Practice
depended upon a
subject
jurisdiction
matter
1992) (hereinafter Moore’s Federal
ed.
no-
determination of timeliness of
factual
Practice).
presented with a mo-
A court
attempt
tice. Westminster elected
12(b)(1)
under
is em-
tion to dismiss
Rule
there
ruling
first instance to obtain a
that
disputes as
resolve
factual
powered to
concerning
genuine
issue of fact
no
jurisdictional
issue.
Con-
Chatham
timeliness, and that the notice was untime-
Century Village,
v.
dominium Ass’ns
in
manner
ly. Resolution of the issue
this
1002,
Cir.1979).
Inc.,
(5th
If
1012
597 F.2d
necessity
for an
would have obviated
motion,
ruling,
its
grants
court
such a
evidentiary hearing.
party
Neither
con-
grant
summary judgment,
unlike
of
summary
appropriateness of
tested
will not
not on the merits
therefore
suggest-
judgment proceeding, and neither
judicata
except as
have res
effect
ed,
appeal,
in the trial court or before us on
Winslow, 815
question
jurisdiction.
determined under
jurisdiction
must be
party opposing
A
a motion to
F.2d at 1116.
mo-
procedures applicable to resolution of a
12(b)(1)generally has fewer
dismiss under
12(b)(1).
tion to dismiss under C.R.C.P.
defending
safeguards
party
would a
than
recognize
authority
I
exists for
summary judgment. Boyle v.
do
motion for
question
a court’s
Outreach Assistance
the view that
Governor’s Veterans
71,
Cir.1991) (mo-
Ctr.,
(3d
subject
jurisdiction
925 F.2d
74-75
not be
matter
should
12(b)(6)
filed
summary judgment
tion
under Fed.R.Civ.P.
in a motion for
raised
summary judgment
for
treated
motion
court
presented
but
should
to the
rather
be
matters outside
presentation
12(b)(1).
because
in a
under
motion to dismiss
Rule
“ ‘provides further
safe
pleadings
See,
Corp.
v.
e.g., Indium
America
”)
plaintiff
(quoting
guards for the
Mor
879,
Inc., 781 F.2d
883-84
Semi-Alloys,
Ass’n,
Loan
v. First Fed. Sav. and
tensen
(because
(Fed.Cir.1985)
motion for sum
Cir.1977));
(3d
549 F.2d
891
accord
premised
mary judgment
on district
Ass’ns, 597 F.2d
Chatham Condominium
subject
jur
matter
court’s asserted lack of
1011-12; 2A
at
Moore’s Federal Practice
isdiction, the
should have been
matter
¶ 12-07[2.-l], at 12-50 to -51.1
in a
to dismiss under
raised
motion
12(b)(1)),
denied,
107
cert.
479 U.S.
present
In the
it is clear West-
(1986);
Elec.
L.Ed.2d 37
S.Ct.
Studio
sought
dismissal of
minster could
12(b)(1).
Photogra-
Technicians
International
claim
C.R.C.P.
grant summary judgment
is no
Eg.,
summary judgment proceeding
unless there
all of
allegations
plaintiffs
and all
genuine
Boyle,
uncontroverted
F.2d
fact.
issue material
be drawn from
74-75; Mortensen,
favorable inferences that can
them
F.2d at 891.
true,
are
court cannot
taken as
and a trial
Indus.,
(footnotes omitted).
598 F.2d
phers Motion Picture
Id. at 56-58
-59
(9th Cir.1979)(parties’
n. 2
motion Thus,
States,
Cizek United
Tenth
summary judgment
district
for
based on
Appeals
Circuit Court
stated that “[a]
subject
jurisdiction
court’s lack of
matter
12(b)(1)
Rule
motion to dismiss for
lack
should have treat-
inappropriate
court
jurisdiction
subject matter
should
con-
dismiss);
a motion
Moore’s
ed it as
juris-
sidered under Fed.R.Civ.P.
if the
56.03,
(“lack
at 56-56
Federal Practice 11
dictional issue is ‘intertwined with the mer-
”
jurisdiction
subject
over the
matter should
1232,1233 (10th
its of the case.’
953 F.2d
or in
a motion to dismiss
be raised
Cir.1992)(quoting Redmon ex rel. Redmon
pleading
and not
motion
responsive
States,
(10th
v. United
934 F.2d
summary judgment”).
principal
A
ba- Cir.1991)).
Cizek,
government
view, however,
is that matters
sis
sought
dismissal
to Fed.R.Civ.P.
abatement,
merely
which
result
12(b)(1)
plaintiff's
damages
of a
action for
being
prejudice
action
dismissed without
Federal
under the
Tort Claims Act
procedural
some
or errone-
based on
defect
ground
plaintiff
had failed
com-
of forum and
not bar a
ous choice
which do
ply
requirement.
with that act’s notice
claims,
reasserting
need not
from
that it
court determined
was error for the
protections provided to a non-
invoke the
govern-
district court
to transform the
pro-
in a
moving party
judgment
12(b)(1)
ment’s
motion to a
sum-
motion for
ceeding.
56-58.
generally
See
id. at
mary judgment. 953 F.2d at
Al-
subject mat-
Moore’s Federal Practice lists
majority
support
though the
reads Cizek as
jurisdiction
example
as an
a matter
ter
*15
that in Trinity’s
for its view
case the dis-
Here,
in
Id. at 56-55.
howev-
abatement.
er,
trict court should have treated
a determination of timeliness of notice
Westmin-
to
would
a com-
for summary judgment
adverse
serve as
ster’s motion
as a
its
plete
future assertions of
claim.
bar
12(b)(1),
motion to dismiss under Rule
see
Thus,
foregoing
requiring
rationale
the
for
maj. op.
only
the case stands
for the
subject
jurisdiction
of a
resolution
matter
principle
party requests
that when a
dis-
12(b)(1)
by
a
motion
than
issue
rather
a
12(b)(1)
Rule
missal under
and the circum-
summary judgment
appli-
not
motion for
suggest
judg-
summary
stances
not
that
do
cable.
court
appropriate,
ment would be more
a
form
Although
ought
give
procedural
it is often
a court’s
effect to the
stated that
subject
jurisdiction
lack
matter
over an
of
and
chosen
the
make its determi-
in
appropriately
action is most
raised
accor-
that
nation under
rule.
also
See
Chatham
12(b)(1),
Rule
have not
dance with
courts
’ns,
Ass
II
“wrongfully
majority opin-
The
injured”).
injury
discovery
ion states that
the
oc-
I
ruling,
the
On review of
district court’s
or
have
injury
curs if such
known
should
disputed
a
believe that
record shows
known
the exercise of reasonable
been
Trinity
of material fact as to when
issue
diligence.
Accepting
Id.
923-24.
this
injury and
discovered its
on that basis
opinion,3
purpose
of this
Trinity’s
standard
reverse the dismissal of
would
presents
genuine
an
a
of ma-
and remand the case for
eviden-
the record
issue
action
(Colo.
majority
Young,
See
2. The
holds that
review the facts
State
hearing
evidentiary
1983)
re-
"discovery
injury”
be found in
on
(suggesting
of the
governed by
"clearly
should be
erro-
mand
neous” standard.
24-10-109(1) incorporates
standard
in
the tort
§
Maj. op.
parties
at 925.
known,” applicable in
have
of "knew should
argue
opportunity
not had an
to brief or
have
this
accrues).
determining
time a
of action
cause
issue,
it.
so I would not address
pulled
Trinity
wall,
fact as to
knew or
out
terial
when
of a concrete
and floor
this information.
separating.
should
known
slabs were
engi-
chief
neer,
Riddle,
Trinity
James A.
averred that
following
gleaned
information is
“thought
building
just settling
other
from
affidavits and
materials
little more
cracking
than normal.” The
the district court in
properly
ruling
before
worsened,
early
Trinity
en-
for summary
on
motion
Westminster’s
gaged
Piering
3-D
problem.
to evaluate the
In
judgment.
before construction be-
Riddle,
According to
3-D Piering advised
building,
center
gan
Trinity
on
media
that “there
to be
seemed
some
instability
report
architect noting
obtained
from an
building,
foundation of the
which we
adverse, expansive
conditions
soil
at the
thought
simply
at that
to be
time
general
particular,
in the
In
result
site and
area.
3-D
compressing
Piering
soil.”
report
nearby
installed
noted that
church had
piers
a number of
experienced badly
building
floor
steel
under the
heaved
slabs. The
Trinity
spring
halting
cracking
architect recommended that
obtain
report
proceeding
a soils
before
“to
for a
cracking
ascer-
time.
In December
began
tain whether or not there is
subsurface
once
began
more.
look
or other
unusual conditions attribut-
engineer
investigate
for an
cause
to the nearby
(possible
able
water tanks
According
cracks.
to Riddle’s affida-
leakage).” The architect also observed vit,
some initial difficulties in find-
“[a]fter
building
proposed
will have to
“[t]he
ing engineers
work,
could do the
who
[Trin-
grade
be set
cassions
with
beams
[sic]
ity
able to hire Robert L.
Maury as
was]
soil
due to
conditions.”
obtained a
engineer
soil
in April of 1989.”
report
soils
November of 1983. Five
Maury
samples
took soil
and discovered
were
depth
twenty
holes
drilled to a
feet
free water in the soil around and
and no free water was encountered. The
building. He
concluded
the water was
report noted
expansive
that the soils were
introduced sometime between the 1983 soil
presented
“a definite risk of future
investigation
drilling,
own
his
that soil
damage”
grade”
if a “slab on
form of
expansion resulting from the
water was
adopted.
construction were
major cause
problems,
of the structural
engineer
Engineering,
with Stewart
Inc.
leakage
from Westminster’s water
examined
site after excavation for the
likely
tanks or mains
the most
source
building
accomplished.
had been
In his
water. He advised
report
“[sjeveral
he noted that
erratic ar-
early May
Maury
late
of 1989.
revealed,
soil
eas of
were
evidenced
Trinity personnel ap-
related that “[t]he
soft,
pockets
moist
clay
engi-
soil.” The
peared surprised
learn that
Westmin-
neer also observed that he had previously
*17
probable
ster’s water
tanks were
cause
system
recommended a foundation
building’s
problems.”
their
structural
Rid-
piers,
drilled
as also indicated in the 1983
dle
timing
corroborated the content and
report,
soils
but that the owner decided to
this
Maury.
information from
Riddle
proceed
grade
with a slab on
foundation
averred,
aware,
I am
far as
until our
“[s]o
system
inadequate
design
foundation
—an
Maury,
discussions with Mr.
it had never
engineer’s opinion,
in the
and one subject
at
anyone
Trinity
occurred to
the
very high
risk
“a
of differential move-
might
tanks or
or
leaking,
water mains
be
cracking.”
engineer
ment and
also
City
might
that the
re-
Westminster
the moisture
of the expan-
noted
content
sponsible
way
problems
for
any
the
we
building
“expected
sive soil
experienced
building.”
had
our
with
disproportionate
in a
increase
manner
years
over the first few
after construction
summary,
by
foregoing
As reflected
composition
due to
erratic soil
and irri-
genuine
the record at minimum creates a
gation.”
Trinity
issue of
as to
material fact
when
1987,
fall
newly
In the
knew or should have known that the dam-
constructed
age
experienced
media center
to its
was caused
cracking in the
media center
leakage
An
floors
walls.
I-beam
of water from Westminster’s tanks
being
suggestion
appeal);
m
first
on
issue for the
time
accord
mains. The initial
or
Martin,
260, 263-64,
report that the
tanks
200 Colo.
architect’s
Manka
875,
denied,
(1980),
leaking appeared negated
cert.
might be
nearby
church was
S.Ct.
be attributed to other natu- in this concurrence and dissent. causes. Based on the existence ral question, I agree cannot with the factual genuine court that there is no issue
district injury early
but that discovered its agree Consequently, I we should
in 1988. so
remand the case district court evidentiary hearing in an
can resolve in-
question of when discovered its
jury purpose triggering Gov- Immunity 180-day
ernmental Act’s notice provision. PEOPLE of State
Colorado, Complainant, Ill matter, not agree As a final I do VIAR, Attorney- Bradley Paul majority proceeding is correct in to deter- Respondent. 180-day require- mine whether applied is to Trini- ment unconstitutional No. 93SA43. ty if it deemed to discovered prior time to late injury *18 Colorado, Supreme Court of May op. early maj. of 1989. at 927. See En Banc. precedents clear we Our make should ap- constitutionality address the March plication statutory requirement unless of a presented matter first been to the Colgan court. v. State Colora- district Revenue, Dep't
do (Colo.1981) (where district court was not challenge
presented with constitutional
statute, Supreme Court will not consider