Trinity Broadcasting of Denver, Inc. v. City of Westminster

• Decision Date: 15 March 1993
• Docket Number: No. 92SA113,92SA113
• Citation: 848 P.2d 916
• Parties: TRINITY BROADCASTING OF DENVER, INC., Plaintiff-Appellant, v. The CITY OF WESTMINSTER, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 916

848 P.2d 916

TRINITY BROADCASTING OF DENVER, INC., Plaintiff-Appellant, v. The CITY OF WESTMINSTER, Defendant-Appellee.

No. 92SA113.

Supreme Court of Colorado En Banc.

March 15, 1993.

As Modified on Denial of Rehearing

April 12, 1993.

William S. Finger, Robert D. Mendenhall, Frank & Finger, P.C., Evergreen, for plaintiff-appellant.

David R. Brougham, Malcolm S. Mead, Hall & Evans, Denver, for defendant-appellee.

Justice MULLARKEY delivered the Opinion of the Court.

Trinity Broadcasting of Denver, Inc. (Trinity) appeals the district court's granting of summary judgment in favor of the City of Westminster (Westminster) dismissing Trinity's claims under the Governmental Immunity Act and for inverse condemnation arising out of damage to a building built and owned by Trinity allegedly caused by water leaking from water storage tanks owned and operated by Westminster. ¹ We affirm the judgment of the district court with respect to inverse condemnation and reverse its judgment concerning the Governmental Immunity Act. We also hold that the notice requirement of the Governmental Immunity Act is not facially unconstitutional and that it is not unconstitutional as applied to Trinity based on the limited facts before us.

I.

In 1986, Trinity constructed a media center building near the top of a hill at 9020 Yates Street in Westminster. About 100 yards away at the top of this hill, Westminster owns and operates two water storage tanks, each of which has a three million gallon capacity.

In 1983, some three years before it began construction, Trinity contracted for a subsurface investigation of the building site. The contractor found no free water in its drilling samples but recommended in a November 1983 report that the building be built on piers or caissons extending into the ground rather than constructed on a pad or slab foundation. This recommendation, which was also made in September of the same year by an architectural firm, William E. Skinner & Associates, and in 1985 by a soil engineer, Raymond Stewart of Stewart Engineering, Inc., was made because of the particular soil involved. Moisture in such soil would create a high risk of structural distress in a pad foundation building. Even though the 1983 soil report found no free water in the soil, the report noted that the church building next to Trinity's site had badly heaved floors with differential vertical movement of as much as one inch.

Despite these recommendations, Trinity built its media center on a slab foundation. By October 1987, some of Trinity's employees noticed cracking in the floors and walls of the building, including at least one steel I-beam pulling out of a wall. Trinity claims that it thought that this cracking was caused by the building settling a little more than normal. In early 1988, Trinity contracted with a company called 3-D Piering to investigate. 3-D Piering reported that there seemed to be some instability in the foundation, which, without performing any tests, it thought was caused by the compressing soil. 3-D Piering installed a number of steel piers under the building in an attempt to stabilize the foundation and completed its work in the spring of 1988.

This repair work stopped the cracking for a while. In December 1988, however, the cracking began anew and, in April 1989, Trinity hired Robert Maury, a soil engineer, to investigate the cause of the cracks. In late April or early May of 1989, Maury informed Trinity that the building's distress occurred because of moisture in the soil which caused the sands in the soil to consolidate and the clays to expand, and that the probable source of that moisture was Westminster's water tanks. ² In an affidavit, Maury stated that Trinity's personnel appeared to be surprised that the water tanks were the probable cause of the building's structural problems.

On August 31, 1989, Trinity sent a notice of claim to Westminster via registered mail pursuant to the Governmental Immunity Act, sections 24-10-1 to -120, 10A C.R.S. (1988 & 1992 Supp.). On September 18, 1989, Trinity filed a complaint in the district court alleging breach of contract and negligence against its construction company, geotechnical engineering firms, architect, and construction engineer. ³ On February 9, 1990, Trinity filed its First Amended Complaint, adding claims against Westminster under the Governmental Immunity Act and alleging inverse condemnation. ⁴ Westminster filed a motion for summary judgment which was initially denied but, upon motion for reconsideration, was granted. The trial court denied Trinity's subsequent motion for reconsideration.

Trinity dismissed the other defendants by stipulation pursuant to C.R.C.P. 41(a) and requested the trial court to enter an order of final judgment so that Trinity could prosecute this appeal. After judgment was entered, Trinity moved for a new trial. The trial court denied this motion, and Trinity filed its notice of appeal. ⁵ Because Trinity raised the issue of the constitutionality of the notice period of section 24-10-109, we ordered the case transferred here from the court of appeals pursuant to section 13-4-110, 6A C.R.S. (1987).

II.

Initially, Westminster argues that Trinity's appeal should be dismissed as not timely filed. Specifically, Westminster argues that Trinity's dismissal of the other defendants pursuant to C.R.C.P. 41(a) converted the trial court's previous summary judgment in Westminster's favor into an appealable final judgment. Westminster reasons that Trinity's appeal should have been filed within forty-five days after it filed its Rule 41 notice.

Contrary to Trinity's assertion, C.R.C.P. 54(b) does not apply to the present case because multiple parties were not involved after the construction defendants were dismissed. Trinity conceded as much because it did not seek certification under Rule 54(b). Rule 41, however, may well apply. Rule 41 provides in relevant part:

(a) ...

(1) ... [A]n action may be dismissed by the plaintiff without order of court upon payment of costs: ... (B) by filing a stipulation of dismissal signed by all parties who have appeared in the action or by their attorneys....

(2) ... Except as provided in subsection (a)(1) of this subdivision of this Rule, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper....

Trinity purported to rely on Rule 41(a)(1) when it dismissed the construction defendants.

Westminster urges us to dismiss this appeal because it contends that the appeal should have been filed within forty-five days of April 1, 1991, when Trinity filed its Rule 41(a)(1) notice. Westminster's argument fails because, once an adverse party has answered or filed a motion for summary judgment, Rule 41(a) requires that a stipulation of dismissal must be signed by all parties who have appeared in the action, or by their attorneys. Neither Westminster nor its attorneys signed the stipulated dismissal. Rule 41(a)(2) provides that except as provided in Rule 41(a)(1), "an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper." Because Westminster was not a party to the stipulation of dismissal, the dismissal was not done pursuant to Rule 41(a)(1), and, therefore, under Rule 41(a)(2), a court order of dismissal was necessary.

No court order appears on the Register of Actions until the June 28,1991 order dismissing the case with prejudice as to all parties. ⁶ We conclude that we have jurisdiction over the appeal. Accordingly, we will address the merits of the appeal.

III.

A.

Trinity claims, first, that its complaint stated a claim for inverse condemnation against Westminster under Article II, Section 15 of the Colorado Constitution. ⁷ Trinity contends that floods from dams and ditches, as well as "percolating waters" (which, in more modern parlance likely would be known as "groundwater migration") from such works, have long been held to constitute "takings." While this may be true, we do not agree that, under the facts and circumstances of this case, there was a "taking." ⁸

Inverse condemnation is the "taking" of private property for public or private use, without compensation, by a governmental or public entity which has refused to exercise its eminent domain power. Inverse condemnation proceedings are appropriate where the underlying activity warrants condemnation pursuant to the entity's eminent domain power.

Kratzenstein v. Board of County Comm'rs, 674 P.2d 1009, 1010 (Colo.App.1983) (citations omitted). See also State, Dept. of Health v. The Mill, 809 P.2d 434, 437 (Colo.1991).

Trinity cites numerous cases which hold that a taking can be effected by flooding, or by the saturation of the ground by percolating water. Pumpelly v. Green Bay and Mississippi Canal Co., 80 U.S. (13 Wall.) 166, 20 L.Ed. 557 (1872); Cheyenne Airport Bd. v. Rogers, 707 P.2d 717, 729 (Wyo.1985); Brown v. Bessemer Irrigating Ditch Co., 1 Colo.N.P.Dec. 286 (1902); Nelson v. Wilson, 239 Minn. 164, 58 N.W.2d 330 (1953); United States v. Kansas City Life Ins. Co., 339 U.S. 799, 70 S.Ct. 885, 94 L.Ed. 1277 (1950); Manigault v. Springs, 199 U.S. 473, 26 S.Ct. 127, 50 L.Ed. 274 (1905). We acknowledge that the saturation of land by surface water flooding or by groundwater, in the correct fact situations, can effect a taking of property. However, the present case is not such a situation.

The threshold question, under these facts, is whether Trinity has stated a claim for inverse condemnation. More specifically, does a taking occur when water leaks from a municipal water system storage tank into the groundwater, saturates the soil, and causes damage to the foundation of an adjacent building? ⁹ We conclude that, in this case, such water leakage does not effect a taking because the leakage was not a direct, natural or probable result of locating and...