Podboy v. Fraternal Order of Police, 03CA0862.

• Docket Nº: No. 03CA0862.
• Citation: 94 P.3d 1226
• Case Date: June 03, 2004
• Court: Court of Appeals of Colorado

94 P.3d 1226

Ronald A. PODBOY, Plaintiff-Appellee,
v.
FRATERNAL ORDER OF POLICE, DENVER SHERIFF LODGE 27, Mike Britton, and C.W. DeNovellis, Defendants-Appellants

No. 03CA0862.

Colorado Court of Appeals, Div. III.

June 3, 2004.

94 P.3d 1228

Brega & Winters, P.C., Jay John Schnell, Mark E. Honhart, Denver, Colorado, for Plaintiff-Appellee

Hamilton & Faatz, P.C., Christopher J.W. Forrest, David R. Osborne, Reid J. Elkus, Denver, Colorado, for Defendants-Appellants.

Opinion by Judge GRAHAM.

Defendants, Fraternal Order of Police, Denver Sheriff Lodge 27(FOP), Mike Britton, and C.W. DeNovellis, appeal the trial court's order denying their motion to dismiss the complaint of plaintiff, Ronald A. Podboy, on the basis of governmental immunity and failure to state a claim upon which relief can be granted. We affirm the order as to governmental immunity and dismiss the appeal as to the order denying the C.R.C.P. 12(b)(5) motion.

FOP is the official collective bargaining agent for the Denver Sheriff Department employees. Britton is the president of FOP, and DeNovellis is the secretary. They are both law enforcement officers employed by the Denver Sheriff Department.

Plaintiff is counsel for the Denver Sheriff's union, a competing collective bargaining agent. Plaintiff and the Denver Sheriff's union submitted a bid to unseat FOP as the exclusive bargaining agent for the 2003-2004 collective bargaining session with the City and County of Denver. During the election of the collective bargaining agent, defendants sent a letter to the Denver Sheriff Department employees stating that plaintiff's "experience is 100% as a Criminal Attorney," that he has no experience in collective bargaining or labor law, and that he had been convicted of a crime.

Plaintiff sent numerous letters to defendants' counsel regarding the alleged defamatory statements and demanded monetary damages. Defendants' counsel denied plaintiff's monetary demand, and plaintiff filed a complaint against defendants for defamation, intentional infliction of emotional distress, and civil conspiracy.

Defendants filed (1) a motion to dismiss for lack of subject matter jurisdiction pursuant to C.R.C.P. 12(b)(1), alleging that they are immune from plaintiff's claims under the Colorado Governmental Immunity Act (CGIA) and that plaintiff failed to satisfy the notice and pleading requirements of the CGIA; and (2) a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to C.R.C.P. 12(b)(5) because plaintiff failed to allege properly the elements of the tort claims. Defendants also filed a motion to suspend discovery and hold an evidentiary hearing to determine the issue of sovereign immunity under the CGIA.

Without holding an evidentiary hearing, the trial court denied defendants' motions to dismiss. The court summarily concluded that FOP is not a public entity and that Britton and DeNovellis are not public employees as defined by the statute, and therefore, defendants are not entitled to sovereign immunity pursuant to §§ 24-10-108 and 24-10-118, C.R.S.2003. Because the court determined that the CGIA did not apply, it did not address whether plaintiff complied with the notice and pleading requirements of the CGIA. The court also implicitly rejected defendants' motion to dismiss under C.R.C.P. 12(b)(5). This appeal followed.

I.

Defendants contend that the trial court erred in failing to dismiss the complaint under C.R.C.P. 12(b)(1). We disagree.

The CGIA establishes immunity from tort actions for public entities and employees who are acting within the course and scope of their employment. Sections 24-10-102, 24-10-105, 24-10-108, 24-10-118, C.R.S.2003. Because the CGIA derogates Colorado's common law, the statute's immunity provisions are strictly construed, and the provisions withholding immunity in the interest of compensating victims of governmental negligence are broadly construed. See Padilla v. Sch. Dist. No. 1, 25 P.3d 1176 (Colo.2001); Springer v. City & County of Denver, 13 P.3d 794 (Colo.2000).

94 P.3d 1229

Governmental immunity under the CGIA is a question of subject matter jurisdiction to be decided pursuant to C.R.C.P. 12(b)(1). Trinity Broad. of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.1993). If all relevant evidence is presented to the trial court and the underlying facts are undisputed, the trial court may decide the jurisdictional issue as a matter of law without conducting an evidentiary hearing, in which case appellate review is de novo. Medina v. State, 35 P.3d 443 (Colo.2001); Trinity Broad. of Denver, Inc. v. City of Westminster, supra.

A.

Defendants argue that the trial court erred in finding that FOP is not a public entity. Defendants allege that, pursuant to § 24-10-103(5), C.R.S.2003, FOP is a public entity because the City and County of Denver, through the Denver Municipal Code, gives it governmental authority to act as the sole collective bargaining agent for the Denver Sheriff Department employees, and therefore FOP is a "separate entity created by intergovernmental contract." We disagree.

Section 24-10-103(5) states:

"Public entity" means the state, 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.

We must give effect to the legislative purpose underlying the CGIA by reviewing the statute's plain language. Climax Molybdenum Co. v. Walter, 812 P.2d 1168 (Colo.1991). If the statute's language is unambiguous, the inquiry ends. Kane v. Town of Estes Park, 786 P.2d 412 (Colo.1990). Finally, we must observe the admonition that the "CGIA's ... immunity provisions are subject to strict construction." Walton v. State, 968 P.2d 636, 643 (Colo.1998).

"Intergovernmental" means "between or involving participation by two or more governments or levels of government." Webster's Third New International Dictionary...