Gladin v. Von Engeln

• Citation: 41 Colo.App. 486,590 P.2d 76
• Decision Date: 02 November 1978
• Docket Number: No. 78-587,78-587
• Parties: James F. GLADIN and Faye J. Gladin, Plaintiffs-Appellees, v. R. D. VON ENGELN, Individually and as General Partner of Interstate Eighth Street Company, a Limited Partnership, and Interstate Eighth Street Company, a Limited Partnership, Defendants, The City of Colorado Springs, a Municipal Corporation, Defendant-Appellant. . III
• Court: Colorado Court of Appeals

Page 76

590 P.2d 76

41 Colo.App. 486

James F. GLADIN and Faye J. Gladin, Plaintiffs-Appellees, v. R. D. VON ENGELN, Individually and as General Partner of Interstate Eighth Street Company, a Limited Partnership, and Interstate Eighth Street Company, a Limited Partnership, Defendants The City of Colorado Springs, a Municipal Corporation Defendant-Appellant.

No. 78-587.

Colorado Court of Appeals, Div. III.

Nov. 2, 1978.

Rehearing Denied Nov. 24, 1978.

Certiorari Granted Jan. 29, 1979.

Cleveland & Wengler, Edward D. Cleveland, Colorado Springs, for plaintiffs-appellees.

Gordon D. Hinds, City Atty., Horn, Anderson & Johnson, Louis Johnson, Colorado Springs, for defendant-appellant.

VanCISE, Judge.

In this action for damages and for an injunction arising out of the subsidence of real property belonging to the plaintiffs, the Gladins, a judgment against the defendants, jointly and severally, for $70,000 plus interest and costs was entered on a jury verdict. The court also issued a mandatory injunction requiring the defendants to restore lateral support to the plaintiffs' land. The verdict against the City of Colorado Springs was based on a finding of negligence. On appeal this court reversed, Gladin v. Von Engeln, 37 Colo.App. 447, 550 P.2d 352 (1976), but the Supreme Court reinstated the judgment as to damages and upheld the trial court's issuance of the injunction. Gladin v. Von Engeln, Colo., 575 P.2d 418 (1978).

On remand, the City alleged that the judgment, together with interest and costs, totaled approximately $88,000 and that the cost of complying with the mandatory injunction would be over $40,000. Thus, the City asserted, the total sum required would exceed the $100,000 maximum recoverable against a municipal corporation under the limitation on judgments provision of the Colorado Governmental Immunities Act, § 24-10-114, C.R.S.1973. Accordingly, it moved for an order limiting the amount of its liability to $100,000. The trial court denied the motion on the ground, among others, that the City failed to raise this issue in its motion for new trial or on appeal, and was now barred from doing so. The City petitioned the Supreme Court for a writ of prohibition, but the petition was denied. This appeal was then instituted. We affirm the trial court.

Contrary to the City's contention that § 24-10-114 creates a jurisdictional limitation, § 24-10-108, C.R.S.1973, in the same Governmental Immunities Act provides that "sovereign immunity shall be available to a public entity As a...