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

JUSTICE MULLARKEY delivered the Opinion of the Court.

[72] JUSTICE LOHR concurring in part and dissenting in part:

[73] I agree with the majority's decision insofar as it affirms the district court's dismissal of the inverse condemnation claim of Trinity Broadcasting of Denver, Inc. (Trinity) on the basis that Trinity failed to present evidence that the City of Westminster (Westminster) intentionally acted in such a way that the natural consequence of its acts would result in a taking of Trinity's media center building.Seemaj. op. at 11-12. Furthermore, because I believe that a factual dispute exists as to the date on which Trinity discovered its injury I agree that the case should be remanded to the district court for a determination as to whether Trinity filed timely notice under the Governmental Immunity Act, §24-10-109(1), 10A C.R.S. (1988 1992 Supp.) (the Act). I respectfully dissent, however, to the part of the majority opinion that holds that the district court erred in considering this matter pursuant to Westminster's motion for summary judgment and that it should have addressed Trinity's compliance with the statute in accordance with principles of dismissal for lack of subject matter jurisdiction under C.R.C.P. 12(b)(1).Seemaj. op. at 19-20. I believe that under the circumstances of this case a decision on summary judgment was a proper means of addressing the jurisdictional question. Furthermore, I disagree with the majority's treatment of the constitutional issue in part IIIC of its opinion. The district court has yet to determine the date on which Trinity discovered its injury, and any consideration by this court of whether the 180-day notice period is unconstitutional as applied presupposes a finding that Trinity discovered its injury at some point before late April or early May 1989. I therefore would hold that consideration of the constitutional issue is premature. [74] In part IIIB of its opinion the majority concludes that the district court should have resolved Westminster's summary judgment motion for the alleged failure of Trinity to file timely notice under section24-10-109(1) pursuant to the principles of dismissal for lack of subject matter jurisdiction under C.R.C.P. 12(b)(1) and that the court erred in dismissing Trinity's action on summary judgment. Maj. op. at 17-20. I agree with the majority to the extent that it holds that it is the role of the district court rather than of the jury to make the pretrial determination of whether Trinity complied with the statute's notice requirement.Seemaj. op. at 17. I disagree, however, that the jurisdictional question of timely notice is one that could not be resolved on summary judgment. Upon consideration of the differences between a ruling on summary judgment and one under C.R.C.P. 12(b)(1), I am satisfied that the district court appropriately addressed Westminster's argument in the procedural form that Westminster presented it in its motion for summary judgment.

[75] Summary judgment is a drastic remedy warranted only upon a clear showing that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. C.R.C.P. 56;Civil Serv. Comm'n v. Pinder,812 P.2d 645,649(Colo. 1991);Churchey v.Adolph Coors Co.,759 P.2d 1336,1339-40(Colo. 1988). Because it acts as a final judgment on the merits of a party's claim, dismissal of an action under summary judgment bars subsequent actions on the same claim.Winslowv. Walters,815 F.2d 1114,1116(7th Cir. 1987) (summary judgment on issue of whether party failed to state a claim on which relief can be granted constitutes a decision on the merits with full res judicata effect);cf.City County of Denver v. Block 173,814 P.2d 824,830-31(Colo. 1991) (except as to state claims that were pendent and thus not available in the federal forum after dismissal of federal claim, dismissal of federal claim on summary judgment will bar a state action on any other claims for relief that could have been brought in the federal proceeding). The party moving for summary judgment must establish the lack of a triable factual issue, and any doubts as to the existence of such an issue must be resolved against that party.Elm Distrib. v. Tri-Centennial Corp.,768 P.2d 215,218(Colo. 1989);Page 930Churchey,759 P.2d at 1340. Furthermore, in determining whether summary judgment is appropriate, a court must give the party opposing such judgment the benefit of all favorable inferences that may be drawn from the facts contained in the record.Churchey,759 P.2d at 1340;KaiserFound. Health Plan v. Sharpe,741 P.2d 714,718(Colo. 1987).

[76] In contrast, when a question is raised as to whether a particular court has subject matter jurisdiction over an action, it is the party asserting jurisdiction that bears the burden of establishing that jurisdiction exists.Reynolds v. Army and Air Force Exch. Serv.,846 F.2d 746,748(Fed. Cir. 1988); 2AJames W. Moore et al., Moore'sFederal Practice12.07[2.-1], 12-46 (2d ed. 1992) (hereinafterMoore'sFederal Practice). A court presented with a motion to dismiss under Rule 12(b)(1) is empowered to resolve any factual disputes as to the jurisdictional issue.Chatham Condominium Ass'ns v. Century Village,Inc.,597 F.2d 1002,1012(5th Cir. 1979). If the court grants such a motion, its ruling, unlike a grant of summary judgment, is not on the merits and therefore will not have res judicata effect except as to the question of jurisdiction.Winslow,815 F.2d at 1116. A party opposing a motion to dismiss under 12(b)(1) generally has fewer safeguards than would a party defending a motion for summary judgment.Boyle v.Governor's Veterans Outreach Assistance Ctr.,925 F.2d 71,74-75(3rd Cir. 1991) (motion filed under Fed.R.Civ.P.12(b)(6) and treated as motion for summary judgment because of presentation of matters outside the pleadings "`provides further safeguards for the plaintiff'") (quotingMortensen v. First Fed. Sav. and Loan Ass'n,549 F.2d 884,891(3rd Cir. 1977);accord Chatham Condominium Ass'ns,597 F.2d at 1011-12; 2AMoore'sFederal Practice12-07[2.-1], at 12-50 to -51.¹

[77] In the present case, it is clear that Westminster could have sought dismissal of Trinity's claim under C.R.C.P. 12(b)(1). However, under the principles set forth above, the fact that it filed a motion for summary judgment, and consequently accepted the added burden of showing a lack of any triable factual issue in a context where Trinity's uncontroverted allegations must be presumed to be true should not provide a basis for concluding that the district court's resolution of the motion as filed was in error. In my view, it was entirely proper for that court to consider whether a genuine issue of material fact existed as to Trinity's compliance with the statute's notice provision under a standard more favorable to Trinity than would have been applicable had the court resolved the issue pursuant to C.R.C.P. 12(b)(1). Here, subject matter jurisdiction depended upon a factual determination of timeliness of notice. Westminster elected to attempt in the first instance to obtain a ruling that there was no genuine issue of fact concerning timeliness, and that the notice was untimely. Resolution of the issue in this manner would have obviated the necessity for an evidentiary hearing. Neither party contested the appropriateness of the summary judgment proceeding, and neither suggested, in the trial court or before us on appeal, that jurisdiction must be determined under procedures applicable to resolution of a motion to dismiss under C.R.C.P. 12(b)(1).

[78] I do recognize that authority exists for the view that the question of a court's subject matter jurisdiction should not be raised in a motion for summary judgment but rather should be presented to the court in a motion to dismiss under Rule 12(b)(1).See, e.g., Indium Corp. of America v.Semi-Alloys, Inc.,781 F.2d 879,883-84(Fed. Cir. 1985) (because motion for summary judgment was premised on district court's asserted lack of subject matter jurisdiction, the matter should have been raised in a motion to dismiss under 12(b)(1)),cert. denied,479 U.S. 820(1986);Studio Elec.Technicians v. International PhotographersPage 931of Motion Picture Indus.,598 F.2d 551,552n. 2 (9th Cir. 1979) (parties' motion for summary judgment based on district court's lack of subject matter jurisdiction inappropriate and court should have treated it as a motion to dismiss); 6Moore's Federal Practice56.03, at 56-56 ("lack of jurisdiction over the subject matter should be raised by a motion to dismiss or in the responsive pleading and not by a motion for summary judgment"). A principal basis for this view, however, is that matters in abatement, which merely result in an action being dismissed without prejudice based on some procedural defect or erroneous choice of forum and which do not bar a party from reasserting its claims, need not invoke the protections provided to a nonmoving party in a summary judgment proceeding.See generally6Moore's Federal Practice56.03, at 56-58.Moore's Federal Practicelists subject matter jurisdiction as an example of a matter in abatement.Id.at 56-55. Here, however, a determination of timeliness of notice adverse to Trinity would serve as a complete bar to future assertions of its claim. Thus, the foregoing rationale for requiring resolution of a subject matter jurisdiction issue by a 12(b)(1) motion rather than by a motion for summary judgment is not applicable.

[79] Although it is often stated that a court's lack of subject matter jurisdiction over an action is most appropriately raised in accordance with Rule 12(b)(1), courts have not adhered to such a rigid application of this principle that its purpose, grounded in the distinctions between summary judgment and 12(b)(1) dismissals, is not served. As stated inMoore'sFederal Practice:

[80] "since the label attached to a motion is unimportant, a motion for summary judgment for lack of jurisdiction over the subject matter may be treated and disposed of by the district court as a motion to dismiss. Conversely, where a motion to dismiss directed to subject matter jurisdiction . . . in fact goes to the merits, the court may treat the motion as one for summary judgment. The important thing is that a judgment, which is not on the merits, be correctly denominated as one without prejudice."

[81]Id.56.03, at 56-58 to -59 (footnotes omitted). Thus, inCizekv. United States, the Tenth Circuit Court of Appeals stated that "[a] Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction should be considered under Fed.R.Civ.P.56, if the jurisdictional issue is `intertwined with the merits of the case.'"953 F.2d 1232,1233(10th Cir. 1992) (quotingRedmon ex rel. Redmon v. United States,934 F.2d 1151,1155(10th Cir. 1991)). InCizek, the government sought dismissal pursuant to Fed.R.Civ.P.12(b)(1) of a plaintiff's action for damages under the Federal Tort Claims Act on the ground that the plaintiff had failed to comply with that act's notice requirement. The court determined that it was error for the district court to transform the government's 12(b)(1) motion to a motion for summary judgment.Id.at 1233. Although the majority readsCizekas support for its view that in Trinity's case the district court should have treated Westminster's motion for summary judgment as a motion to dismiss under Rule 12(b)(1),seemaj. op. at 19-20, the case stands only for the principle that when a party requests dismissal under Rule 12(b)(1) and the circumstances do not suggest that summary judgment would be more appropriate, a court ought to give effect to the procedural form chosen by the party and make its determination under that rule.See also Chatham Condominium Ass'ns,597 F.2d at 1011-12("When jurisdictional issues are intertwined with the merits, the adjudication of the jurisdictional issue in accordance with the procedure under a 12(b)(1) motion fails to offer the procedural safeguards attendant upon proceedings under . . . a motion for summary judgment under Rule 56" and therefore should be deferred to a consideration of the merits).

[82] In accordance with the flexibility shown by courts in applying these two procedures for dismissal, I believe that the circumstances in the present case warrant a reasoned conclusion that summary judgment was an appropriate means of resolving Westminster's motion. Section24-10-109requires "[a]ny person claiming to havePage 932suffered an injury by a public entity . . . [to] file a written notice . . . within one hundred eighty days after the date of the discovery of the injury." It states further that any failure to comply with this requirement "shall forever bar any such action." This makes clear that any determination that Trinity failed to file timely notice will act as a complete bar to any subsequent action that it may bring. This will be true regardless of whether the determination is made on summary judgment or pursuant to a motion to dismiss under 12(b)(1). Consequently, even if the district court had addressed the question of its jurisdiction under C.R.C.P. 12(b)(1), Trinity would not have benefitted from the protections against res judicata that the rule would ordinarily provide. Because the usual justifications for proceeding under C.R.C.P. 12(b)(1) do not exist in this case, I see no basis for finding error in the district court's treatment of Westminster's motion for dismissal. If Westminster believed that it could prevail under the strict summary judgment standards by showing the nonexistence of any genuine issue of material fact as to Trinity's compliance with the statute's notice requirement, it should have been allowed to test the sufficiency of Trinity's claims by such a motion — as the district court did — rather than be compelled to proceed through an evidentiary hearing which would produce the same result. Thus, I cannot agree with the majority's finding of error and would review the district court's dismissal of Trinity's action pursuant to the principles of summary judgment set forth above. [83] On review of the district court's ruling, I believe that the record shows a disputed issue of material fact as to when Trinity discovered its injury and on that basis would reverse the dismissal of Trinity's action and remand the case for an evidentiary hearing to determine whether Trinity complied with the Act's notice requirement.²

[84] As shown above, under section24-10-109(1), Trinity was required to file written notice of its claims within 180 days "after the date of the discovery of the injury." "Injury" is statutorily defined as follows:

[85] "`Injury' means death, injury to a person, damage to or loss of property, of whatsoever kind, which, if inflicted by a private person, would 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 a claimant."

[86] §24-10-103(2), 10A C.R.S. (1988). The written notice required by section24-10-109(1) "shall contain" information including "[a] concise statement of the factual basis of the claim, including the date, time, place, and circumstances of the act, omission, or event complained of" and "[t]he name and address of any public employee involved, if known." §24-10-109(2)(b), (c), 10A C.R.S. (1988).

[87] Taken in combination, these statutes require at a minimum that before the 180-day notice period of section24-10-109(1) will begin to run against a tort claim for property damage, the claimant must have discovered that he or she has been injured.Seemaj. op. at 14. Because "injury" connotes a tortious cause,see§24-10-103(2), discovery of an injury involving damage to property necessarily requires discovery that the damage resulted from such a cause.Seemaj. op. at 14 (requiring that a claimant discover that he or she has been "wrongfully injured"). The majority opinion states that discovery of the injury occurs if such injury is known or should have been known by the exercise of reasonable diligence. Maj. op. at 14-15. Accepting this standard for the purpose of this opinion,³the record presents a genuine issue ofPage 933material fact as to when Trinity knew or should have known this information.

[88] The following information is gleaned from the affidavits and other materials properly before the district court in ruling on Westminster's motion for summary judgment. In 1983, before construction began on the media center building, Trinity obtained a report from an architect noting adverse, expansive soil conditions at the site and in the general area. In particular, the report noted that a nearby church had experienced badly heaved floor slabs. The architect recommended that Trinity obtain a soils report before proceeding "to ascertain whether or not there is subsurface water or other unusual conditions attributable to the nearby water tanks (possible leakage)." The architect also observed that "[t]he proposed building will have to be set on cassions [sic] with grade beams due to soil conditions." Trinity obtained a soils report in November of 1983. Five holes were drilled to a depth of twenty feet and no free water was encountered. The report noted that the soils were expansive and presented "a definite risk of future damage" if a "slab on grade" form of construction were adopted. In 1985 an engineer with Stewart Engineering, Inc. examined the site after excavation for the building had been accomplished. In his report he noted that "[s]everal erratic areas of soil were revealed, as evidenced by soft, moist pockets of clay soil." The engineer also observed that he had previously recommended a foundation system of drilled piers, as also indicated in the 1983 soils report, but that the owner decided to proceed with a slab on grade foundation system — an inadequate foundation design in the engineer's opinion, and one subject to "a very high risk of differential movement and cracking." The engineer also noted the moisture content of the expansive soil under the building was "expected to increase in a disproportionate manner over the first few years after construction due to the erratic soil composition and irrigation."

[89] In the fall of 1987, the newly constructed media center experienced cracking in the floors and walls. An I-beam was being pulled out of a concrete wall, and floor slabs were separating. Trinity's chief engineer, James A. Riddle, averred that Trinity "thought the building was just settling a little more than normal." The cracking worsened, and early in 1988 Trinity engaged 3-D Piering to evaluate the problem. According to Riddle, 3-D Piering advised that "there seemed to be some instability in the foundation of the building, which we thought at that time to be simply the result of compressing soil." 3-D Piering installed a number of steel piers under the building in the spring of 1988, halting the cracking for a time. In December 1988 cracking began once more. Trinity began to look for an engineer to investigate the cause of the cracks. According to Riddle's affidavit, "[a]fter some initial difficulties in finding engineers who could do the work, [Trinity was] able to hire Robert L. Maury as a soil engineer in April of 1989."

[90] Maury took soil samples and discovered free water in the soil around and under the building. He concluded that the water was introduced sometime between the 1983 soil investigation and his own drilling, that soil expansion resulting from the water was a major cause of the structural problems, and that leakage from Westminster's water tanks or mains was the most likely source of the water. He advised Trinity of this in late April or early May of 1989. Maury related that "[t]he Trinity personnel appeared surprised to learn that Westminster's water tanks were a probable cause of their building's structural problems." Riddle corroborated the content and timing of this information from Maury. Riddle averred, "So far as I am aware, until our discussions with Mr. Maury, it had never occurred to anyone at Trinity that the tanks or water mains might be leaking, or that the City of Westminster might be responsible in any way for the problems we had experienced with our building."

[91] As reflected by the foregoing summary, the record at a minimum creates a genuine issue of material fact as to when Trinity knew or should have known that the damage to its media center was caused by leakage of water from Westminster's tanksPage 934or mains. The initial suggestion in the 1983 architect's report that the water tanks might be leaking appeared negated by the later soils report. A nearby church was experiencing structural problems in 1983, evidently in absence of such leakage. Trinity knew the soil was expansive and that moisture buildup around and under the building could be expected after construction. It also knew that it had ignored engineering advice not to employ a slab on grade foundation design.

[92] Giving Trinity the benefit of all favorable inferences that may be drawn from facts contained in the record and resolving all doubts about the existence of a genuine issue of material fact against Westminster, as we must, the record establishes a genuine issue of fact as to whether Trinity knew or should have known by the exercise of reasonable diligence prior to April or May of 1989 that the structural damage could be attributed to something other than natural causes. Based on the existence of this factual question, I cannot agree with the district court that there is no genuine issue but that Trinity discovered its injury early in 1988. Consequently, I agree we should remand the case so that the district court can resolve in an evidentiary hearing the question of when Trinity discovered its injury for the purpose of triggering the Governmental Immunity Act's 180-day notice provision. [93] As a final matter, I do not agree that the majority is correct in proceeding to determine whether the 180-day notice requirement is unconstitutional as applied to Trinity if it is deemed to have discovered its injury at any time prior to late April or early May of 1989.Seemaj. op. at 25. Our precedents make clear that we should not address the constitutionality of the application of a statutory requirement unless the matter has first been presented to the district court.Colgan v. State ofColorado Dep't of Revenue,623 P.2d 871,874(Colo. 1981) (where district court was not presented with constitutional challenge to a statute Supreme Court will not consider issue for the first time on appeal);accord Mankav. Martin,200 Colo. 260,263-64,614 P.2d 875,877(1980),cert. denied,450 U.S. 913(1981). Nor are we to resolve issues that are not essential to the disposition of an action.Mountain States Beet Growers Mktg. Ass'nv. Monroe,84 Colo. 300,308,269 P. 886,888(1928) ("It is the general rule and practice both in the federal and state courts not to pass upon constitutional questions unless it is essential to the disposition of the pending cause."). Because we need not resolve the constitutionality of the statute's application for the district court to resolve the jurisdictional issue and because the court may well resolve that issue in a way that such review will never be necessary, I find the majority's treatment of this issue premature.

[94] JUSTICE KIRSHBAUM and JUSTICE VOLLACK join in this concurrence and dissent.