City and County of Denver v. Desert Truck Sales, Inc., 91SC479

• Decision Date: 21 September 1992
• Docket Number: No. 91SC479,91SC479
• Citation: 837 P.2d 759
• Parties: CITY AND COUNTY OF DENVER, Petitioner, v. DESERT TRUCK SALES, INC., d/b/a Prince Motors, a California corporation, Respondent.
• Court: Colorado Supreme Court

Page 759

837 P.2d 759

CITY AND COUNTY OF DENVER, Petitioner, v. DESERT TRUCK SALES, INC., d/b/a Prince Motors, a California

corporation, Respondent.

No. 91SC479.

Supreme Court of Colorado,

En Banc.

Sept. 21, 1992.

Daniel E. Muse, City Atty., Stan M. Sharoff, Asst. City Atty., Denver, for petitioner.

Bartholomew & Cristiano, Francis V. Cristiano, Denver, for respondent.

Justice ERICKSON delivered the Opinion of the Court.

We granted certiorari to review Desert Truck Sales, Inc. v. City and County of Denver, 821 P.2d 860 (Colo.App.1991). The court of appeals reversed the district court's dismissal of the replevin action filed by Desert Truck Sales, Inc. (Desert Truck). We reverse and remand to the court of appeals with directions to affirm the district court's order dismissing Desert Truck's replevin action.

I Desert Truck's Claim

Desert Truck filed a verified complaint for replevin against the City and County of Denver (Denver) to recover possession of a 1976 Rolls Royce automobile that was seized and impounded by a Denver police officer for investigation of auto theft. § 42-5-107, 17 C.R.S. (1984 & 1991 Supp.). The complaint also sought damages for the detention of the vehicle and the loss of its use while impounded by Denver. When the vehicle was seized it was being driven in Denver without the permission of Desert Truck and without license plates or registration papers, and with the vehicle identification number (VIN) removed by obliteration or defacement. See §§ 42-3-111(5), -113, 17 C.R.S. (1984 & 1991 Supp.); § 42-5-102(2), 17 C.R.S. (1984 & 1991 Supp.).

Denver's answer to the complaint alleged that while the Rolls Royce was detained, Desert Truck failed to substantiate proof of ownership to the satisfaction of the manager of safety as required by city ordinance. ¹ As affirmative defenses Denver asserted immunity from tort liability under the Governmental Immunity Act (hereinafter Act or Governmental Immunity Act) and failure of Desert Truck to comply with the notice provisions of that Act. §§ 24-10-106, -109, 10A C.R.S. (1988). Denver also alleged that Desert Truck's complaint failed to state a claim upon which relief could be granted. In addition, Denver filed a motion to dismiss the complaint for lack of jurisdiction on the grounds that the replevin action was a tort claim barred by the Governmental Immunity Act, and that Desert Truck had failed to provide the notice of claim required by the Governmental Immunity Act. At the hearing on Denver's motion to dismiss, Desert Truck admitted failure to provide the required notice. The district court granted the motion to dismiss and held that notice is a condition precedent under the Act, and that it did not have jurisdiction over a "replevin tort claim". See Antonopoulos v. Town of Telluride, 187 Colo. 392, 397, 532 P.2d 346, 349 (1975).

On appeal Desert Truck claims that replevin, under the facts of this case, is not a tort action covered by the Governmental Immunity Act. Desert Truck also asserts that if replevin is barred as a remedy under the Governmental Immunity Act, the Act is unconstitutional because it permits the taking of private property without just compensation and without due process of law. The court of appeals agreed with Desert Truck and held that the replevin claim was excluded from the coverage of the Act because it arose under the just compensation and due process clauses of the Colorado Constitution. Colo.Const. art. II, §§ 15, 25.

We granted certiorari to determine whether Desert Truck's replevin claim is barred by the Governmental Immunity Act because it sounds in tort or could lie in tort. We also elected to consider whether granting Denver immunity against a replevin action to recover a vehicle seized pursuant to section 42-5-107, 17 C.R.S. (1984 & 1991 Supp.), results in the taking of private property without just compensation or constitutes a violation of due process under the Colorado Constitution.

II The Factual Background ²

Desert Truck claims that Rolls Royce Motor Cars, Inc., the original dealer in California, removed the VIN number from the vehicle after the vehicle was severely damaged in transit from the manufacturer and declared to be a total loss by the insurance carrier. The vehicle was sold to Desert Truck for salvage of parts. Desert Truck repaired the vehicle and used the Rolls Royce with dealer plates as a demonstrator before attempting to effect a sale of the vehicle. The vehicle, however, was never titled or registered and license plates were never issued for the Rolls Royce.

In November 1987, Desert Truck shipped the vehicle to Louis Matteo and Alan Wilson in Colorado, so that it could be shown to a prospective purchaser. Without Desert Truck's permission, Matteo and Wilson drove the vehicle in Denver without license plates and proof of ownership, and were stopped by a Denver police officer. The police officer, suspecting auto theft, seized and impounded the vehicle after Matteo and Wilson were unable to produce registration papers. The Denver Police Department later determined that the VIN number had been removed or defaced and refused to release the Rolls Royce. The Rolls Royce has been in the possession of the Denver Police Department since it was initially seized and stored.

The issues raised by this case implicate the Colorado Constitution, two Colorado statutes, and Rule 104 of the Colorado rules of civil procedure. Resolution of the issues requires us to reconcile the legislative intent in passing the Governmental Immunity Act, §§ 24-10-101, -119, 10A C.R.S. (1988), and the Automobile Theft Law, §§ 42-5-101, -111, 17 C.R.S. (1984 & 1991 Supp.), with the Colorado Constitution. Colo.Const. art. II, §§ 15, 25. We first address the scope of the Governmental Immunity Act.

III Governmental Immunity Act

With limited exceptions, the Governmental Immunity Act (Act) bars any action against a public entity for injury that lies in tort or could lie in tort, regardless of whether a claim is asserted for that type of relief. See §§ 24-10-106, -108, 10A C.R.S. (1988). The Act also requires that "any person claiming to have suffered an injury by a public entity or by an employee thereof ... shall file a written notice ... within one hundred eighty days after the date of the discovery of the injury...." § 24-10-109, 10A C.R.S. (1988). Compliance with the notice provision is a condition precedent to the assertion of a claim under the Act and failure to comply with the notice requirement bars the claim for injury. Id.

The Act evidences a legislative intent to protect the state, its political subdivisions, and public employees against unlimited tort liability that would impair their ability to provide essential public services. § 24-10-102, 10A C.R.S. (1988). Although the Act waives the sovereign immunity of a public entity in limited situations, §§ 24-10-106(1), -118(2), none of the legislatively created exceptions to sovereign immunity are applicable to this case. ³ Nevertheless, this appeal raises two issues of first impression for this court. The threshold issue is whether the replevin claim in this case is a tort or could lie in a tort barred by the Act. If the Act applies, we must determine whether governmental immunity against the replevin claim in this case would lead to violation of the just compensation or due process clauses of the Colorado Constitution.

IV The Replevin Claim

The history of an action for replevin was succinctly stated in In re Marriage of Allen, 724 P.2d 651 (Colo.1986). There we stated that:

Replevin is a possessory action in which a claimant seeks to recover both possession of personal property that has been wrongfully taken or detained and damages for its unlawful detention. Metro National Bank v. District Court, 676 P.2d 19, 22 (Colo.1984); D. Dobbs, Handbook on the Law of Remedies § 5.13 at 399-400 (1973). This civil remedy has ancient roots in the common law, but many states have codified the remedy. See statutes cited in Dobbs, Handbook on the Law of Remedies, § 5.13 at 400 nn. 8-9. Colorado had a statute expressly codifying the law of replevin, found at section 79-11-1 to -19, 4 C.R.S. (1963), but that statute was repealed in 1964. See ch. 45, sec. 73, 1964 Colo. Sess. Laws 409, 436. At that time, the legislature expressed its intent that "[i]n an action for the possession of specific personal property, claim and delivery (replevin) proceedings shall be available to the plaintiff as provided in the Colorado rules of civil procedure." Ch. 45, sec. 52, 1964 Colo.Sess.Laws 409, 427. Accordingly, C.R.C.P. 104 now governs actions for replevin in this state.

In re Marriage of Allen, 724 P.2d at 656. Rule 104 provides in pertinent part that:

(a) Personal Property. The plaintiff in an action to recover the possession of personal property may, at the time of commencement of the action, or at any time before trial, claim the delivery of such property to him as provided in this Rule.

(b) Causes, Affidavit. Where a delivery is claimed, the plaintiff, his agent or attorney, or some credible person for him, shall, by verified complaint ... show to the court as follows:

(1) That the plaintiff is the owner of the property claimed or is entitled to possession thereof and the source of such title or right; ....

(2) That the property is being detained by the defendant against the plaintiff's claim of right to possession; the means by which the defendant came into possession thereof, and the specific facts constituting detention against the right of the plaintiff to possession.

....

(p) Judgment. In an action to recover the possession of personal property, judgment for the plaintiff may be for the possession or the value thereof in case a delivery cannot be had, and damages for the detention. If the property has been delivered to the plaintiff, and the defendant claims a return thereof, judgment for the defendant may be for a return of the property, or the value thereof in case...