Dickie v. Mabin, 02CA1897.

• Decision Date: 15 July 2004
• Docket Number: No. 02CA1897.,02CA1897.
• Citation: 101 P.3d 1126
• Parties: John A. DICKE, MD, JD, PSY D; and Child Adolescent & Psychotherapy Institute, Plaintiffs-Appellees, v. Diana MABIN; Laurie Knight; and Amos Martinez, Defendants-Appellants.
• Court: Colorado Court of Appeals

101 P.3d 1126

John A. DICKE, MD, JD, PSY D; and Child Adolescent & Psychotherapy Institute, Plaintiffs-Appellees, v. Diana MABIN; Laurie Knight; and Amos Martinez, Defendants-Appellants.

No. 02CA1897.

Colorado Court of Appeals, Div. V.

July 15, 2004.

Certiorari Denied November 22, 2004.¹

John T. Hyland, P.C., John T. Hyland, Denver, Colorado, for Plaintiffs-Appellees.

James D. Robinson, County Attorney, Hal B. Warren, Deputy County Attorney, Brighton, Colorado, for Defendants-Appellants Diana Mabin and Laurie Knight.

Ken Salazar, Attorney General, Patricia D. Herron, Assistant Attorney General, Denver, Colorado, for Defendant-Appellant Amos Martinez.

Opinion by Judge DAILEY.

Defendants, Diana Mabin, Laurie Knight, and Amos Martinez, appeal the orders denying their motions to dismiss, for lack of subject matter jurisdiction, certain claims brought against them by plaintiffs, the Child Adolescent and Psychotherapy Institute (CAAPI), and its clinical director, John A. Dicke, M.D. We affirm in part, vacate in part, and remand with directions.

Mabin and Knight are employees of the Adams County Department of Social Services. Dicke initially sued them on March 14, 2002, asserting various claims based on their report of potential child abuse by Dicke to a local police department and a report of potential substandard psychological practice by Dicke to the Colorado Board of Psychological Examiners. Dicke had provided Mabin and Knight with a notice of claim on July 12, 2001, which identified himself as the claimant and sought $150,000 in damages.

Dicke subsequently filed an amended complaint that added CAAPI as a plaintiff and Martinez as a defendant. Plaintiffs' claims against Martinez, who was the program administrator for the Colorado Board of Psychological Examiners, were based on his comments to the press in March and July 2002. Plaintiffs subsequently filed a second amended complaint seeking additional damages from defendants as a result of information about the case that had been posted on a website.

CAAPI served its notice of claim on Mabin and Knight approximately a month after the filing of the first amended complaint. Similarly, Dicke and CAAPI served their notice of claim on Martinez nearly two weeks after the filing of the first amended complaint.

Defendants moved to dismiss plaintiffs' claims for lack of subject matter jurisdiction under the Colorado Governmental Immunity Act (GIA), § 24-10-101, et seq., C.R.S.2003. As pertinent for this appeal (1) Martinez argued that plaintiffs had failed to comply with § 24-10-109(6), C.R.S.2003, because they had failed to provide him with a notice of claim at least ninety days prior to the filing of the complaint in which he was first named as a defendant; and (2) Mabin and Knight argued that CAAPI's notice of claim failed to comply with the requirements of § 24-10-109(2)(e), C.R.S.2003, because it did not contain a request for a specific amount of monetary damages.

The trial court denied defendants' motions in separate orders. With respect to Martinez, the trial court found that plaintiffs' claims were not barred because the Attorney General's actions in defending him amounted to a denial of the claims within the meaning of § 24-10-109(6). And as to Mabin and Knight, the trial court found that the lack of a monetary demand in CAAPI's notice of claim did not adversely affect their ability to defend against CAAPI's claims.

Defendants now appeal pursuant to § 24-10-108, C.R.S.2003.

I.

Martinez contends that plaintiffs' claims against him should be dismissed because, by providing him with a notice of claim after the amended complaint had been filed, they failed to comply with § 24-10-109(6). Mabin and Knight raise a similar contention on appeal with respect to CAAPI's claims against them. In neither instance are we persuaded. However, we conclude that defendants are entitled to a ninety-day stay on remand.

Section 24-10-109(6) provides that:

No action brought pursuant to this article shall be commenced until after the claimant who has filed timely notice pursuant to subsection (1) of this section has received notice from the public entity that the public entity has denied the claim or until after ninety days has passed following the filing of the notice of claim required by this section, whichever occurs first.

Initially, we disagree with the trial court's determination that merely taking steps to protect the legal interests of a client following initiation of a lawsuit qualifies as a denial of a claim within the meaning of § 24-10-109(6). The proper service of a complaint requires a defendant to file some type of legal response within twenty days or risk losing the case. See C.R.C.P. 12(a). And treating a defendant's legal response to the complaint as a denial of a claim, when no notice of claim has previously been filed, undermines the very purposes served by the § 24-10-109(6) ninety-day waiting period, namely, to allow a public entity to investigate and remedy dangerous conditions, to settle meritorious claims without incurring the expenses associated with litigation, to make necessary fiscal arrangements to cover potential liability, and to prepare for the defense of claims. SeeMesa County Valley Sch. Dist. No. 51 v. Kelsey, 8 P.3d 1200, 1204 (Colo.2000).

Thus, we conclude, contrary to the trial court, that plaintiffs did not comply with the § 24-10-109(6) requirement of waiting at least ninety days from the date of providing written notice of claim before instituting suit on the new claims in the amended complaint. The issue, then, is the effect of plaintiffs' noncompliance with § 24-10-109(6).

Defendants assert that, under §§ 24-10-109(1) and 24-10-118(1)(a), C.R.S.2003, plaintiffs' noncompliance with § 24-10-109(6) constitutes a jurisdictional bar to proceeding on the new claims. We are not persuaded.

Section 24-10-109(1) provides, in pertinent part, that "[c]ompliance with the provisions of this section shall be a jurisdictional prerequisite to any action brought under the provisions of this article, and failure of compliance shall forever bar any such action." Section 24-10-118(1)(a) similarly provides that "[c]ompliance with the provisions of section 24-10-109, in the forms and within the times provided by section 24-10-109, shall be a jurisdictional prerequisite to any such action against a public employee ... and failure of compliance shall forever bar any such action against a public employee."

In Regional Transportation District v. Lopez, 916 P.2d 1187, 1192 (Colo.1996), the supreme court interpreted and applied § 24-10-109(1) where the plaintiff instituted suit against a public entity only five days after providing written notice of claim. The court held that, contrary to the plain language of § 24-10-109(1), the premature filing of a complaint prior to the expiration of the ninety-day period set forth in § 24-10-109(6) was not a jurisdictional defect mandating dismissal of the action.

The supreme court determined that it could look beyond the plain language of § 24-10-109(1) because "[f]orever barring a claimant from pursuing a claim ... because the claim was prematurely filed, qualifies as an absurd result" which should be avoided if possible. Reg'l Transp. Dist. v. Lopez, supra, 916 P.2d at 1192. Ultimately the court concluded, based on language in § 24-10-109(5), C.R.S.2003, which it read as contradicting a literal interpretation of § 24-10-109(1), a consideration of legislative history, and notions of equity and fairness, that (1) the legislature had committed a drafting error in the text of § 24-10-109(1); (2) "the jurisdiction language was meant to apply only to the 180-day notice provision found in subsection (1) rather than to all of the other subsections found in XX-XX-XXX"; and thus (3) the "jurisdictional prerequisite" language appearing in § 24-10-109(1) did not encompass compliance with § 24-10-109(6). Reg'l Transp. Dist. v. Lopez, supra, 916 P.2d at 1194-96.

We construe § 24-10-118(1)(a) in the same manner, recognizing that it has a phrase which § 24-10-109(1) does not. On its face, § 24-10-118(1)(a) requires, as a jurisdictional prerequisite to suit, compliance "in the forms and within the times provided by section 24-10-109." However, that phrase, although using singular rather than plural terms, appeared in the original version of § 24-10-118(1)(a), see Colo. Sess. Laws 1979, ch. 219 at 865, which was enacted in response to the supreme court's decision in Kristensen v. Jones, 195 Colo. 122, 124-25, 575 P.2d 854, 855-56 (1978).

In Kristensen v. Jones, supra,

the supreme court held that, under the version of the GIA then in effect, the service of a written notice of claim was a condition precedent for suing a public entity, but not for suing a public employee in his or her individual capacity. Subsequently, § 24-10-118(1)(a) was enacted to make the procedures for holding public employees liable for acts committed in the course of their employment parallel with those for holding public entities liable. See Hearings on S.B. 101 before the Senate Judiciary Committee, 52d General Assembly, First Session (Jan. 24, 1979) (remarks of bill sponsor, Senator Ralph Cole).

The "jurisdictional prerequisite" language of § 24-10-118(1)(a) was enacted in 1986, at the same time and in the same bill as the same language was enacted as part of § 24-10-109(1). See Colo. Sess. Laws 1986, ch. 166, § 24-10-109(1) at 877, § 24-10-118(1)(a) at 881. This was the same bill which the supreme court determined in Regional Transportation District v. Lopez, supra,

did not make compliance with § 24-10-109(6) a jurisdictional prerequisite for suing a public entity. Because § 24-10-118(1)(a) was designed to require the same procedures for suits against public employees as for suits against public entities, we similarly conclude that § 24-10-118(1)(a) did not make compliance with § 24-10-109(6) a jurisdictional prerequisite for suing public...