Jones v. Northeast Durango Water Dist., 80CA0121
| Decision Date | 11 September 1980 |
| Docket Number | No. 80CA0121,80CA0121 |
| Citation | 622 P.2d 92 |
| Parties | F. A. JONES, d/b/a Timberline View Estates, Plaintiff-Appellant, v. NORTHEAST DURANGO WATER DISTRICT and Conrad Christianson, LeRoy W. Vagneur, Frank Campana, M. Christian Hummel, and J. D. Simmons, in their capacity as Directors of the District and individually, Defendants-Appellees. . I |
| Court | Colorado Court of Appeals |
Frank J. Anesi, Douglas S. Walker, Durango, for plaintiff-appellant.
Bruce M. Kirkpatrick, Don Freemyer, Durango, for defendants-appellees.
Plaintiff, F. A. Jones, appeals a judgment dismissing all claims against defendant Northeast Durango Water District (the district) and the individual defendants in their capacities as directors of the district. We affirm in part and reverse in part.
This action was commenced in August 1977. Plaintiff is the owner and developer of subdivided land known as Timberline View Estates, some of which is located within the district. In his second amended complaint, plaintiff alleged that he and his predecessors in interest had properly applied to the district for water service, but that the district and its directors had refused to provide such service to some of the lots and had imposed improper conditions on the granting of service to other lots. In ten separate claims against all defendants and one claim against defendant Vagneur individually, plaintiff sought an order compelling defendants to provide water services and asked for compensatory and punitive damages due to the withholding of these services. The damage claims were based on the alleged violation of defendants' duty to provide and their interference with plaintiff's right to obtain these services, and their consequent interference with his use of his own property, with existing and prospective sales relationships, and with his business reputation. Defendants in their answer pled only one affirmative defense, failure to state a claim, and the district counterclaimed for damages to water lines and for an injunction.
The case was set for trial to a jury on December 17, 1979. On that date, defendants served on counsel and filed with the court their motion to dismiss on the grounds of non-compliance by plaintiff with the notice requirements of § 24-10-109, C.R.S.1973. The court granted the motion, entered a judgment dismissing the action against the district and the individual defendants in their official capacity, and issued a C.R.C.P. 54(b) order pertaining thereto. Further proceedings in the case were continued pending this appeal.
Plaintiff's first contention is that, since the motion to dismiss was not filed until the date of trial and more than two years after the filing of the complaint, the motion was not timely and should have been denied. He interprets the notice provisions of § 24-10-109, C.R.S.1973, as applicable to personal jurisdiction only and, as such, subject to being waived.
As applicable to the circumstances here, § 24-10-109, C.R.S.1973, provided, in pertinent part:
The injuries for which damages are sought "lie in or could lie in tort." See §§ 24-10-105 and 103(2), C.R.S.1973. There is no dispute as to the district being a public entity as defined in § 24-10-103(5), C.R.S.1973, and it is admitted that plaintiff did not file the required notice.
Nowhere in the plaintiff's pleadings was there any allegation that this condition precedent of notice had been complied with, nor was there any allegation of waiver. Defendants alleged as a defense that the complaint failed to state a claim upon which relief could be granted. By failing to allege compliance with the condition or...
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