Martinez v. CSG Redevelopment Partners LLLP

Citation469 P.3d 491
Decision Date20 June 2019
Docket NumberCourt of Appeals No. 18CA0534
Parties Guadalupe P. MARTINEZ, Plaintiff-Appellant, v. CSG REDEVELOPMENT PARTNERS LLLP, a Colorado limited liability limited partnership, Defendant-Appellee.
CourtCourt of Appeals of Colorado

DiGiacomo, Jaggers & Perko, LLP, Douglas J. Perko, Arvada, Colorado, for Plaintiff-Appellant

Harris, Karstaedt, Jamison & Powers, P.C., Susan M. Stamm, Englewood, Colorado, for Defendant-Appellee

Opinion by JUDGE J. JONES

¶1 Guadalupe P. Martinez, a resident of the low-income housing facility Casa Loma Apartments, slipped and fell on a walkway leading to the apartment building. Seeking to recover for his injuries, Mr. Martinez sued CSG Redevelopment Partners, LLLP (CSGR), Casa Loma's management company and the building's owner, under the Premises Liability Act, § 13-21-115, C.R.S. 2018, and (alternatively) for negligence, alleging that CSGR had allowed snow and ice to accumulate on the walkway.

¶2 CSGR moved to dismiss the complaint, arguing that, as an "instrumentality" of a public entity — the Denver Housing Authority (DHA) — it is immune from tort liability under the Colorado Governmental Immunity Act (CGIA), § 24-10-106, C.R.S. 2018. It also argued that the exception to governmental immunity in section 24-10-106(1)(d)(III) for a dangerous condition on a walkway "leading to a public building open for public business" doesn't apply because Casa Loma isn't such a building. Mr. Martinez opposed the motion. After a Trinity Broadcasting of Denver, Inc. v. City of Westminster , 848 P.2d 916 (Colo. 1993), hearing, the district court granted CSGR's motion, ruling that CSGR is an instrumentality of the DHA and that the public building exception doesn't apply.

¶3 We conclude that, because of both DHA's extensive control over CSGR and CSGR's public purpose, CSGR is an instrumentality of a public entity within the meaning of the CGIA, and therefore a public entity itself entitled to governmental immunity. We also conclude that the record supports the district court's finding that Casa Loma isn't a public building open for public business, and that Mr. Martinez's alternative contention that immunity doesn't apply because the walkway is part of a "public facility located in [a] recreation area maintained by a public entity," see § 24-10-106(1)(e), is, on this record, unavailing. The upshot is we affirm the district court's judgment.

I. Background

¶4 The following facts were found by the district court with record support or are otherwise undisputed.

¶5 In 1987, DHA created the Denver Housing Corporation (DHC), a nonprofit entity that DHA completely owns and controls. For nearly thirty years, DHC (and, by extension, DHA), has owned and operated the Casa Loma Apartments. In 2013, to finance the renovation of Casa Loma and two other low-income housing properties, DHA created CSGR and CSG Housing, Inc. CSG Housing served as CSGR's general partner, and another of DHA's instrumentalities, DHA Limited Partner, served as CSGR's limited partner. At that point, CSGR was made up of, and controlled entirely by, DHA instrumentalities.1

¶6 But in 2014, as part of CSGR's effort to secure more funding for the renovations, Wincopin Circle LLLP joined CSGR as a limited partner.2 It functions mainly as an investor, having contributed approximately $ 12.5 million in equity financing. CSG Housing and DHA Limited Partner each contributed $ 90 and $ 10, respectively. As a result, CSG Housing, as the general partner, retained a 0.01% ownership interest in CSGR; DHA Limited Partner, a special limited partner, retained a 0.001% ownership interest in CSGR; and the investor, the limited partner, received a 99.989% ownership interest in CSGR and qualified for tax credits through the Low-Income Housing Tax Credit (LIHTC) program — a federal program that offers federal tax credits to private investors as an incentive to invest in low-income housing projects. See 26 U.S.C. § 42 (2018). The partnership is governed by a restated partnership agreement (more about which we'll discuss below).

¶7 Around the same time the investor joined CSGR, DHC leased the land under Casa Loma to CSGR for sixty-five years; DHC transferred its ownership of the structural improvements on the property to CSGR (this was also so the investor could qualify for LIHTC); and DHA lent CSGR approximately $ 45.3 million, $ 21 million of which was a construction loan that DHA funded by issuing private activity bonds (about $ 15 million was cash directly from DHA). CSG Housing, acting in its capacity as the general partner, hired DHA as the manager of the property under a written management agreement (another agreement about which we'll talk more below).

¶8 Several years later, Mr. Martinez slipped and fell on an allegedly icy walkway leading to the building. He sued CSGR, claiming over $ 400,000 in medical expenses. As noted, the district court dismissed his complaint based on governmental immunity.

II. Discussion

¶9 Mr. Martinez contends that the district court erred by (1) concluding that CSGR is an instrumentality of DHA; (2) ruling that the "public building" exception doesn't apply; and (3) failing to address his argument that the "recreation area" waiver in section 24-10-106(1)(e) applies.

A. Standard of Review

¶10 To the extent historical facts relevant to the issues Mr. Martinez raises on appeal were disputed, we review the district court's findings of fact for clear error, Medina v. State , 35 P.3d 443, 452 (Colo. 2001) ; such a finding is clearly erroneous only if there's no support for it in the record, M.D.C./Wood, Inc. v. Mortimer , 866 P.2d 1380, 1384 (Colo. 1994). But to the extent all such facts relevant to a particular issue weren't disputed, we review the issue de novo. Young v. Brighton Sch. Dist. 27J , 2014 CO 32, ¶ 10, 325 P.3d 571. And to the extent that CSGR's claim to immunity implicates questions of law, including statutory interpretation or application of a proper legal standard, we review the district court's conclusions de novo. See Corsentino v. Cordova , 4 P.3d 1082, 1087 (Colo. 2000).

B. Analysis
1. CSGR is an Instrumentality of a Public Entity

¶11 First, Mr. Martinez contends that his claim isn't barred by the CGIA because CSGR's status as a private partnership precludes its treatment as a "public entity." He points to the investor's significant capital contributions, the investor's approval power over some of CSGR's operations, and that much of DHA's investment came from the sale of private activity bonds. While these facts have some force, we ultimately conclude that they don't carry the day.

a. Applicable Law

¶12 The CGIA gives public entities immunity from claims "which lie in tort or could lie in tort," subject to certain express exceptions.

See § 24-10-106(1). It defines "public entity" as

the state, the judicial department of the state, any county, city and county, municipality, school district, special improvement district, and every other kind of district, agency, instrumentality, or political subdivision thereof organized pursuant to law and any separate entity created by intergovernmental contract or cooperation only between or among the state, county, city and county, municipality, school district, special improvement district, and every other kind of district, agency, instrumentality, or political subdivision thereof.

§ 24-10-103(5), C.R.S. 2018.

¶13 Though no statute defines the term "instrumentality," several cases shed light on its meaning. In Robinson v. Colorado State Lottery Division , a division of this court held that by including the term "instrumentality" with other entities that are public in nature, the General Assembly intended that covered instrumentalities be "governmental in nature." 155 P.3d 409, 414 (Colo. App. 2006), aff'd in part, rev'd in part on other grounds , 179 P.3d 998 (Colo. 2008). The division concluded that Texaco, a private corporation that was licensed by the State of Colorado to sell lottery tickets, wasn't an instrumentality since there was "no indication that the General Assembly intended to expand the scope of the [C]GIA to include any private person or corporation that entered into some type of agreement with a public entity." Id.

¶14 Similarly, in Moran v. Standard Insurance Co. , 187 P.3d 1162 (Colo. App. 2008), another division of this court, relying heavily on the division's decision in Robinson , held that Standard Insurance Company, a private company, wasn't an instrumentality merely because a public entity, the Public Employees’ Retirement Association (PERA), was statutorily required to contract with a private insurance company (and it chose Standard). "Standard's status as a private corporation," the division wrote, "even one that has entered a contract with a public entity, precludes its treatment as a public entity under the CGIA." Id. at 1166.

¶15 Several years later, in Colorado Special Districts Property & Liability Pool v. Lyons , 2012 COA 18, 277 P.3d 874, another division leaned on Robinson and Moran in holding that County Technical Services, Inc. (CTSI) was an instrumentality, for four reasons: (1) CTSI was a nonprofit corporation formed by Colorado counties "exclusively for the purpose of lessening the burden on Colorado county governments"; (2) it was founded and maintained by public entities; (3) those public entities were involved in CTSI's management or control; and (4) the supreme court had said in another case that public corporations like CTSI "are created as subdivisions of the state as an expedient device to carry out the functions of government." Id. at ¶¶ 40-43 (quoting Colo. Ass'n of Pub. Emps. v. Bd. of Regents of Univ. of Colo. , 804 P.2d 138, 143 (Colo. 1990) ).

¶16 Each of these cases also drew on the CGIA's "central legislative purpose" of limiting liability to lessen the burden on taxpayers. See, e.g. , Robinson , 155 P.3d at 414.

b. Analysis

¶17 It appears to be undisputed that CSGR is a private partnership. But we conclude that fact isn't...

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