Open Door Ministries v. Lipschuetz
| Decision Date | 23 May 2016 |
| Docket Number | Supreme Court Case No. 14SC787 |
| Parties | OPEN DOOR MINISTRIES, Petitioner v. Jesse N. LIPSCHUETZ, Respondent |
| Court | Colorado Supreme Court |
Attorneys for Petitioner: Gibson, Dunn & Crutcher, LLP, Laura M. Sturges, John D.W. Partridge, Katherine C. Yarger, Timothy M. Zimmerman, Sara E. Carlisle, Monica K. Loseman, Denver, Colorado
Attorneys for Respondent: Carver, Schwarz, McNab, Kamper & Forbes, LLP, Peter C. Forbes, Denver, Colorado, Jesse N. Lipschuetz, Denver, Colorado
Attorneys for Amicus Curiae Colorado Counties, Inc.: Hall & Evans, L.L.C., Thomas J. Lyons, Malcolm S. Mead, Denver, Colorado
En Banc
¶ 1 In this case, Jesse Lipschuetz challenged the validity of a rooming and boarding permit that the City and County of Denver (“the City”)1 issued to Open Door Ministries (“Open Door”). Lipschuetz—who owns a property adjacent to Open Door's property—filed claims against the City and Open Door seeking revocation of the permit. Open Door filed cross-claims against the City, seeking declaratory and injunctive relief to prevent the revocation of its permit. The trial court concluded that the City should not have issued the permit, but stayed its order to revoke the permit until Open Door's cross-claims were resolved. Several months later, the trial court granted summary judgment in favor of Open Door on the cross-claims.
¶ 2 On appeal, Lipschuetz argued that Open Door's cross-claims against the City were barred by the Colorado Governmental Immunity Act (“the CGIA” or “the Act”) because they “could lie in tort.” See § 24–10–106, C.R.S. (2015)
. To make a claim under the CGIA, a party must notify the governmental entity prior to filing the claims. § 24–10–109(1), C.R.S. (2015). This notice requirement is jurisdictional. Id. Because Open Door did not notify the City prior to filing its cross-claims, Lipschuetz argued that the trial court lacked subject matter jurisdiction over the cross-claims. The court of appeals agreed. Lipschuetz v. Open Door Ministries, No. 13CA461, 2014 WL 3513619 (July 17, 2014). Because Open Door failed to comply with the notice provision, the court of appeals concluded, the trial court lacked subject matter jurisdiction over the cross-claims. Id. at 1.
¶ 3 However, the court of appeals failed to consider whether, at the time of filing, Open Door had suffered an injury that would subject its cross-claims to the CGIA. We conclude that the CGIA does not apply to Open Door's request for prospective relief to prevent future injury. Because Open Door had not suffered an injury before it filed its cross-claims, the CGIA did not bar its cross- claims seeking prospective relief from future injury, and the trial court had jurisdiction over the cross-claims.
¶ 4 In June 2010, the Denver City Council passed Ordinance 333. Denv., Colo. Ordinance No. 333, Series of 2010. This ordinance replaced the old zoning code but included an exception that allowed any person seeking to “erect or alter structures” to apply for a permit under the old zoning code until December 30, 2010. Id. On December 30, 2010, Open Door applied for a use permit under the old code to change the use of 740 Clarkson Street to provide housing for people in need. The Denver Zoning Authority (“the DZA”) issued the rooming and boarding permit. Open Door then purchased the property for $700,000; made improvements to the property; and began providing room and board to people at risk of becoming homeless.
¶ 5 Several months later, Lipschuetz, who owns a home adjacent to 740 Clarkson, sought administrative review of the DZA's decision to issue the permit. He argued that Open Door did not meet the exception under Ordinance 333 because the permit was for a change of use, not to “erect or alter” a structure. The DZA defended its decision to issue the permit, explaining that it had consistently interpreted the exception to allow parties to seek any kind of permit under the old zoning code until December 30, 2010. The Board of Adjustment for Zoning Appeals (“the BOA”) denied Lipschuetz's request to revoke the permit.
¶ 6 Lipschuetz then filed an administrative appeal under C.R.C.P. 106
against the BOA, the individual members of the BOA, and the Zoning Administrator for the City, seeking revocation of the permit. Lipschuetz moved to amend his complaint to add Open Door as a party because Open Door, “as an applicant for the permit in question, [was] a proper defendant in this action.” The trial court granted this motion. The trial court also granted Lipschuetz's motion to add the City as a party.
¶ 7 Open Door answered the complaint, then filed cross-claims against the City for promissory estoppel and requested a declaratory judgment that the permit would remain valid. The City admitted all of the allegations in Open Door's cross-claim and argued that the permit was properly issued. The trial court then permitted Lipschuetz to intervene in Open Door's cross-claims against the City.
¶ 8 On July 26, 2012, the trial court found that the BOA abused its discretion when it affirmed the DZA's decision to issue the permit to Open Door. The court ordered the City to revoke the permit but stayed its order pending the resolution of Open Door's cross-claims. Open Door then filed a motion for summary judgment on its cross-claims on November 29, 2012. On January 25, 2013, the trial court found that promissory estoppel was an appropriate claim for relief for Open Door, but that the cross-claims also incorporated the elements of equitable estoppel. The trial court first concluded that Open Door had satisfied the elements of both promissory and equitable estoppel and then granted Open Door's motion for summary judgment. The trial court concluded that “the permit must be enforced to prevent manifest injustice.”
¶ 9 Lipschuetz appealed, arguing for the first time that Open Door's cross-claims “could lie in tort” and were therefore subject to the CGIA. See §§ 24–10–101
to –120, C.R.S. (2015). He argued that the cross-claims amounted to an equitable estoppel claim based on Open Door's reliance on the City's “misrepresentation” that the permit was valid, and therefore, the claims could lie in tort. Lipschuetz contended that, because Open Door failed to give the City notice as required by the CGIA, the trial court lacked subject matter jurisdiction over the cross-claims. See § 24–10–109(1). The court of appeals agreed, holding that Open Door's estoppel cross-claims “could lie in tort.” Lipschuetz, slip op. at 7 (). Thus, the court of appeals concluded that Open Door should have notified the City of its intent to file the cross-claims.
Lipschuetz, slip op. at 12.
The court of appeals concluded that, because Open Door failed to comply with the CGIA's notice requirement, the trial court did not have jurisdiction over Open Door's claims. Id.
¶ 10 We granted Open Door's petition for certiorari to consider whether the CGIA required Open Door to notify the City before filing its cross-claims against the City seeking prospective relief from a future injury.2
¶ 11 Whether the CGIA applies to claims for prospective relief to prevent future injury presents a question of statutory interpretation, which we review de novo. Robinson v. Colo. State Lottery Div., 179 P.3d 998, 1003 (Colo.2008)
.
¶ 12 The CGIA requires plaintiffs to notify governmental entities before filing claims against them where (1) the plaintiffs have suffered an injury and (2) the claims “lie in tort or could lie in tort.” § 24–10–106
. The court of appeals concluded that, because Open Door failed to comply with this notice requirement, its cross-claims against the City were barred by the CGIA. Lipschuetz, slip op. at 12. By arriving at this conclusion, the court of appeals missed an important first step: it failed to consider whether Open Door had suffered an injury. The CGIA applies only to claims that seek relief from an injury that has already occurred. See §§ 24–10–106, –109(1). Open Door has not suffered an injury because it still owns and operates 740 Clarkson for rooming and boarding pursuant to a valid permit. Consequently, the CGIA did not bar its claims, and Open Door was not required to comply with the CGIA's notice provision. Thus, Lipschuetz's attempt to invoke the CGIA to bar Open Door's cross-claims fails; the trial court had jurisdiction over Open Door's cross-claims.
¶ 13 Until 1971, governmental entities in Colorado enjoyed protection from suit under the doctrine of sovereign immunity. In Evans v. Board of County Commissioners of El Paso County,
we departed from that doctrine. 174 Colo. 97, 482 P.2d 968, 968 (1971), superseded by statute on other grounds as recognized in
Padilla ex rel. Padilla v. Sch. Dist. No. 1, 25 P.3d 1176 (Colo.2001). We observed that the judicially created doctrine resulted in “the injustice and inequity—even absurdity—of having recovery for negligence against individuals and against firms for negligence of their employees, but no recovery against governmental units for the negligence of their employees.” Id. at 969. We concluded that the General Assembly—and not the courts—should determine when, if ever, governmental entities should have immunity from suit. Id. at 972. The General Assembly responded by adopting the CGIA. See Colorado Governmental Immunity Act, Ch. 373, sec. 1, §§ 130–11–1 to –17, 1971 Colo. Sess. Laws 1204, 1204–12 ().
¶ 14 The CGIA aims to protect governmental entities and, by extension, taxpayers from “the consequences of unlimited liability.” §...
To continue reading
Request your trial
-
Elder v. Williams
...—is the primary inquiry to determine whether the CGIA applies to [a] claim." Open Door Ministries v. Lipschuetz , 2016 CO 37M, ¶ 16, 373 P.3d 575, 579 (emphasis added). To determine whether a claim "could lie in tort" for purposes of the CGIA, we should look to whether the claimant is asser......
-
Heartland Biogas, LLC v. Bd. of Cnty. Comm'rs of Weld Cnty.
...and sought theequivalent of damages for the defendant's tortious misrepresentations. Id. at 1007-08; cf. Open Door Ministries v. Lipschuetz, 373 P.3d 575, 580 (Colo. 2016) (noting that Colorado case law examining whether a claim could lie "all revolved around a plaintiff's claim for relief ......
-
Houchin v. Denver Health & Hosp. Auth.
...–– is the primary inquiry to determine whether the CGIA applies to the claim." Open Door Ministries v. Lipschuetz , 2016 CO 37M, ¶ 16, 373 P.3d 575.¶39 Applying the analysis employed in Conners and later supreme court cases considering the applicability of the CGIA, we must also give substa......
-
Bd. of Cnty. Comm'rs of the Cnty. of La Plata v. Colo. Dep't of Pub. Health & Env’t
...complaint alleges an injury and (2) the claim lies in tort or could lie in tort." Open Door Ministries v. Lipschuetz , 2016 CO 37M, ¶ 15, 373 P.3d 575. Section 24-10-103(2), C.R.S. 2019, of the CGIA defines "injury" as "death, injury to a person, damage to or loss of property, of whatsoever......
-
Sovereign Immunity in Colorado: a Look at the Cgia
...First Nat’l Bank of Durango v. Lyons, 349 P.3d 1161 (Colo.App. 2015); Foster, 342 P.3d at 504-06. [10] Open Door Ministries v. Lipshuetz, 373 P.3d 575 (Colo. 2016). [11] See CRS § 24-10-118(2)(a). [12] CRS § 24-10-110(1)(b)(I). [13] CRS § 24-10-118(2)(a). [14] CRS § 24-10-103(1.3). [15] CRS......