Bresciani v. Haragan, 97CA0806

Decision Date15 October 1998
Docket NumberNo. 97CA0806,97CA0806
Citation968 P.2d 153
Parties98 CJ C.A.R. 5390 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. . II
CourtColorado Court of Appeals

Dana P. Hlavac, P.C., Dana P. Hlavac, Colorado Springs; LeHouillier & Associates, Patric J. LeHouillier, Colorado Springs, for Plaintiffs-Appellees.

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, § 24-10-101, et seq., C.R.S.1998 (the Act), to dismiss certain claims brought by plaintiffs Robert E. Bresciani and Annette Bresciani, and by plaintiffs Shannon Minnerly and Melanie Minnerly, by and through their next friends, Robert E. Bresciani and Annette Bresciani. We affirm.

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 § 24-10-109(2), C.R.S.1998, which specifies the form and content for a notice of claim.

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 § 24-10-109(2). Nevertheless, we now conclude that, even though defendants have filed an immediate appeal of an interlocutory order, we have subject matter jurisdiction.

In filing their appeal, defendants relied on § 24-10-118(2.5), C.R.S.1998. Under this provision, a trial court's decision on a motion to dismiss based on sovereign immunity is deemed a final judgment subject to interlocutory appeal. Because a challenge to the sufficiency of a notice of claim would appear to raise an issue of "sovereign immunity," see Trinity Broadcasting v. City of Westminster, 848 P.2d 916 (Colo.1993), it would further appear that we have jurisdiction. However, when the statutory scheme is considered together with the supreme court's construction of § 24-10-109, C.R.S.1998, in two cases raising different issues, the answer to the question of our jurisdiction becomes more difficult.

A.

Under § 24-10-108, C.R.S.1998, with certain exceptions sovereign immunity is a bar "to any action" against a public entity for an injury which lies in tort or could lie in tort. If a public entity or employee raises the issue of sovereign immunity prior to or after the commencement of discovery, the court must suspend discovery, except for that discovery necessary to decide the issue of sovereign immunity. The court's decision on the motion is deemed "a final judgment ... subject to interlocutory appeal."

Section 24-10-109, C.R.S.1998, sets forth the requirements for the notice of claim. Under § 24-10-109(1), C.R.S.1998, any person claiming to have suffered an injury caused by a public entity or employee must file a written notice of claim within 180 days after the date of the discovery of the injury. The subsection further provides: "Compliance with the provisions of this section shall be a jurisdictional prerequisite to any action brought under the provisions of this article."

The requirements for the content of the notice of claim are specified in § 24-10-109(2):

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 § 24-10-109 deal with additional notice requirements and procedures.

Finally, § 24-10-118, C.R.S.1998, sets forth the requirements for claims against public employees and the extent of their immunity. Section 24-10-118(2)(a), C.R.S.1998, grants public employees immunity from claims that lie in tort or could lie in tort, unless the public employee's act or omission causing injury was willful and wanton. However, unlike the immunity provided public entities, the immunity is not from suit, but "from liability."

In contrast, § 24-10-118(1)(a), C.R.S.1998, provides that, in an action against a public employee, "[c]ompliance with the provisions of § 24-10-109, in the forms and within all times provided by section 24-10-109, is a jurisdictional prerequisite." (emphasis added) In turn, under § 24-10-118(2.5), if a public employee raises the issue of "sovereign immunity" prior to or after the commencement of discovery, the court must suspend discovery, except for that necessary to decide the issue of sovereign immunity. The provision concludes: "The court's decision on such motion shall be a final judgment ... subject to interlocutory appeal."

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 further discussion of the difference in the right to immediate appeal.

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 §§ 24-10-108 and 24-10-118(2.5), the trial court's decision on an issue of "sovereign immunity" was subject to immediate appeal. It then explained, consistent with its earlier holdings in Fogg v. Macaluso, 892 P.2d 271 (Colo.1995) and Trinity Broadcasting v. City of Westminster, supra, that "sovereign immunity" under the Act is a "jurisdictional issue." City of Lakewood v. Brace, supra, 919 P.2d at 244. Thus, when a public entity seeks dismissal of a claim under § 24-10-108, the trial court must resolve any disputed issues of fact under C.R.C.P. 12(b)(1), which provides for dismissal due to lack of jurisdiction over the subject matter. The trial court's decision is then subject to immediate appeal.

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 § 24-10-108 from a public employee's immunity from liability under § 24-10-118(2)(a). The court concluded that the immunity from liability provided under § 24-10-118(2)(a) was only a "defense," and the question whether the employees' conduct was willful and wanton would have to await resolution by the trier of fact at the trial on the merits.

The initial question in this case therefore becomes whether defendants' challenge under § 24-10-109(2) to the sufficiency of the contents of plaintiffs' notice of claim raises a "jurisdictional issue" of "sovereign immunity." If so, the trial court's decision is clearly subject to immediate appeal, pursuant to § 24-10-118(2.5). However, if the motion does not raise a "jurisdictional issue," the right to an immediate appeal becomes less clear.

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, § 24-10-109(2), together with the rest of the notice provisions in § 24-10-109, raise "jurisdictional issues" of "sovereign immunity."

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