Lehman v. City of Louisville
Decision Date | 19 November 1992 |
Docket Number | No. 91CA1259,91CA1259 |
Citation | 857 P.2d 455 |
Parties | Arlin D. LEHMAN; Pulmonary Data Services of America, Inc., a Colorado Corporation; M & J Medical, Inc., a Colorado corporation; Oliver & Associates; and Sunshine Acres, Ltd., a Colorado corporation, Plaintiffs-Appellants, v. CITY OF LOUISVILLE, Defendant-Appellee. . I |
Court | Colorado Court of Appeals |
John A. Meininger, Denver, for plaintiffs-appellants.
Weller, Freidrich, Ward & Andrew, Steven L. Heisdorffer, Edward J. Godin, Denver, for defendant-appellee.
Opinion by Judge NEY.
Plaintiffs, Arlin D. Lehman; Pulmonary Data Services of America, Inc.; M & J Medical, Inc.; Oliver and Associates; and Sunshine Acres, Ltd., appeal the trial court's dismissal of their claim against defendant, City of Louisville, based upon the Colorado Governmental Immunity Act. Plaintiffs also appeal the trial court's refusal to grant leave to amend their amended complaint. We affirm.
In 1988, plaintiffs considered purchasing an historic church in the City of Louisville to use as a residence for Lehman family members and as a business that was to be operated by persons other than members of the Lehman family. Plaintiffs allege that they communicated the intended use to the Director of Community Development for the city prior to purchasing the property and were informed that their intended use of the church was permitted under the existing zoning code. Plaintiffs further allege that they relied upon the director's representations in purchasing and subsequently renovating the property.
Louisville Municipal Code § 17.08.225 provides:
[H]ome occupation means an occupation carried on in the dwelling ... by members of the family occupying the dwelling, with no servant, employee, or other person being engaged.
The City Administrator determined that, by using non-family members, the intended business violated the zoning ordinance. In response to that determination, plaintiffs filed this action, grounded in estoppel, seeking damages and injunctive relief. The district court dismissed plaintiffs' complaint based on the Colorado Governmental Immunity Act, whereupon plaintiffs amended their complaint by asserting additional claims based on 42 U.S.C. § 1983.
Defendant then removed the proceedings to the U.S. District Court for the District of Colorado. That court dismissed the § 1983 claims and remanded the pendent estoppel claim to the state district court. The U.S. Court of Appeals for the Tenth Circuit affirmed the dismissal of the § 1983 claims. Lehman v. City of Louisville, 967 F.2d 1474 (10th Cir.1992).
On remand, the trial court again granted defendant's motion to dismiss based on the Governmental Immunity Act and denied plaintiffs' motion for further amendment, thereby refusing to hear plaintiffs' claim that the Colorado Governmental Immunity Act was unconstitutional as applied. From that judgment, plaintiffs appeal.
Plaintiffs first contend that their claim is based upon common law estoppel, which is not a tort, and therefore is not barred by the Colorado Governmental Immunity Act. We disagree.
The Colorado Governmental Immunity Act § 24-10-106(1), C.R.S. (1988 Repl.Vol. 10A) provides that: "[A] public entity shall be immune from liability in all claims for injury which lie in tort or could lie in tort regardless of whether that may be the type of action or the form of relief chosen by the claimant...." (emphasis supplied) The exceptions to this immunity, enumerated in the statute, do not apply to the facts here.
The General Assembly enacted the Colorado Governmental Immunity Act specifically to recognize that the state and its political subdivisions provide essential public services which would be unduly hampered by the imposition of unlimited tort liability. Further, in evaluating a claim in relation to the Colorado Governmental Immunity Act, the question is not how the plaintiff characterizes its claim but whether the claim is a tort claim or could be a tort claim. See City & County of Denver v. Desert Truck Sales, 837 P.2d 759 (Colo.1992).
Consequently, the question before us is whether plaintiffs' claim, characterized by them as estoppel, is actually a tort or could lie in tort, as contemplated by the Act. We conclude that such is the case.
We do not here determine that all estoppel claims could lie in tort, we note that our supreme court, in an action for damages, has concluded that: "[E]stoppel is fundamentally a tort theory, based upon a misrepresentation of facts...." Franks v. Aurora, 147 Colo. 25, 31, 362 P.2d 561, 564 (1961).
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