Open Door Ministries v. Lipschuetz

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, slip op. at 7 (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.

¶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.



I. Facts and Procedural History



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 transitional 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.



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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



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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 (citing Bd. of Cty. Comm’rs v. DeLozier, 917 P.2d 714, 715

(Colo. 1996) (distinguishing promissory estoppel from equitable estoppel based on

either a negligent or intentional misrepresentation of fact and concluding that a

promissory estoppel claim is not subject to the CGIA)). 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.



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¶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

II. Standard of Review

¶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).

III. Analysis

¶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 2 Specifically, we granted certiorari to review the following issues: 1. Whether a claim for non-compensatory, prospective declaratory and injunctive relief to prevent future injury implicates the Colorado Governmental Immunity Act (“CGIA”). 2. Whether CGIA’s requirement that “[a]ny person claiming to have suffered an injury by a public entity file a written notice . . . within [182] days after the date of the discovery of the injury,” § 24-10-109(1), C.R.S. (2015), applies to claims seeking prospective declaratory and injunctive relief to prevent future injury.



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an injury because it still owns and operates 740 Clarkson for transitional housing

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.

A. The Colorado Governmental Immunity Act

¶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. 482 P.2d 968, 968 (Colo. 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

(now codified at §§ 24-10-101 to -120).

¶14 The CGIA aims to protect governmental entities and, by extension, taxpayers

from “the consequences of unlimited liability.” § 24-10-102. To achieve this goal, the

Act generally immunizes public entities from claims for injury that lie or could lie in



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tort. Id. The Act attempts to “includ[e] within one article all the circumstances under

which the state . . . may be liable for actions which lie in tort.” Id. To bring a claim

under the CGIA, “[a]ny person claiming to have suffered an injury by a public entity”

must file “written notice . . . within one hundred eighty-two days after the date of the

discovery of the injury.” § 24-10-109(1). Compliance with this provision is a

“jurisdictional prerequisite.” Id.; Reg’l Transp. Dist. v. Lopez, 916 P.2d 1187, 1194–95

(Colo. 1996). Failure to comply with the notice provision “shall forever bar any such

action.” § 24-10-109(1).

¶15 The CGIA applies to “all claims for injury which 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 the

claimant.” § 24-10-106(1). The CGIA applies when (1) the complaint alleges an injury

and (2) the claim lies in tort or could lie in tort. Id. The CGIA defines an “injury” as

“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.”

§ 24-10-103(2). The statute clearly identifies the types of injuries that would support a

claim under the CGIA—“death, injury to a person, [and] damage to or loss of property,

of whatsoever kind.” Id.

¶16 Whether a party has suffered an injury and whether the claim could lie in tort are

two separate questions, which require separate inquiries. See Robinson, 179 P.3d at

1005. When a plaintiff alleges that he or she was injured by a governmental entity, the

court “must assess the nature of the injury underlying the claim to determine . . .



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whether the claim could lie in tort.” Id. at 1005. The nature of the injury alleged—not

the relief requested—is the primary inquiry to determine whether the CGIA applies to

the claim. Id. at 1006. Other questions—such as whether the claim could lie in tort and

the type of relief sought—follow this initial injury analysis. With this focus on the

importance of the nature of the alleged injury in mind, we turn to the question of

whether the CGIA applies to a claim seeking relief from a future injury.

B. The CGIA Does Not Apply to Claims for Prospective Relief to Prevent Future Injury.

¶17 In order to determine whether the CGIA applied to Open Door’s cross-claims,

we must first consider whether Open Door’s claim alleged an “injury” for the purposes

of the CGIA. See Robinson, 179 P.3d at 1005. Open Door’s cross-claims sought

prospective relief to prevent a future injury. We therefore must consider whether the

CGIA applies to claims based on a threatened or future injury. After examining the

statutory language, we hold that the CGIA does not bar claims for prospective relief to

prevent future injury.

¶18 In interpreting the CGIA, we aim to give effect to the legislature’s intent, and

look first to the plain and ordinary meaning of the statute’s language. Burnett v. Colo.

Dep’t of Nat. Res., 2015 CO 19, ¶ 12, 346 P.3d 1005, 1008. Here, the statutory language

is clear: the CGIA applies only to claims that allege that an injury has already occurred.

¶19 The CGIA applies to “all claims for injury which 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 the

claimant.” § 24-10-106 (emphasis added). The CGIA defines injury to include death,



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personal injury, and property damage. § 24-10-103(2). Such injuries are cognizable only

after they occur; a person cannot pursue a tort claim for future death, future physical

injury, or future property damage. See, e.g., Isaac v. Am. Heritage Bank & Tr. Co.,

675 P.2d 742, 744 (Colo. 1984) (“One of the basic principles of law is that a party may

not recover damages if he has not suffered an injury.”); see also 74 Am. Jur. 2d Torts § 9

(2016) (“[T]he possibility of a future injury is insufficient to maintain a tort claim.”).

Therefore, the CGIA applies only to claims involving injuries that have already

occurred.

¶20 The notice provision of the CGIA provides additional support for the conclusion

that the legislature did not intend that the CGIA apply to claims to prevent future

injury. The notice provision states, “Any person claiming to have suffered an injury by

a public entity . . . shall file a written notice . . . within one hundred and eighty-two days

after the discovery of the injury.” § 24-10-109(1) (emphasis added). The statute’s use of

the past perfect tense—referring to a past injury that someone “claims to have

suffered”—indicates that the alleged injury already occurred. Id. The statute also

requires the plaintiff to notify the offending government agency “after the discovery of

the injury,” cementing the conclusion that the CGIA applies only after the plaintiff

discovers an injury that has already occurred. Id.

¶21 Our precedent confirms this conclusion. For example, in Robinson, the plaintiff

alleged that the Colorado State Lottery Division continued to advertise and sell lottery

tickets for months after the advertised prizes had already been awarded. 179 P.3d at

1001. Robinson claimed that she was injured by this practice because she had paid for



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lottery tickets “with the expectation that she could win the advertised and represented

prizes,” which had already been claimed. Id. at 1002. We concluded that the

“underlying injury asserted in Robinson’s claims [arose] out of the alleged

misrepresentation of certain facts.” Id. at 1001. Therefore, the claims “could lie in tort

for the purposes of governmental immunity” and were “barred by the CGIA.” Id. But

we arrived at this conclusion only after determining that (1) the plaintiff had suffered

an injury (i.e. paying for lottery tickets when the advertised prizes were unavailable)

and then (2) assessing the nature of that injury (i.e. evaluating whether the injury

stemmed from fraud or misrepresentation). Id. at 1005–06.

¶22 In addition to Robinson, our cases examining whether a claim could lie in tort for

purposes of the CGIA all revolve around a plaintiff’s claim for relief from a past or

ongoing injury. See, e.g., Colo. Dep’t of Transp. v. Brown Grp. Retail, Inc., 182 P.3d 687,

688 (Colo. 2008) (contamination of a manufacturing site); City of Colo. Springs v.

Conners, 993 P.2d 1167, 1168 (Colo. 2000) (hostile work environment and retaliatory

discharge); DeLozier, 917 P.2d at 715 (failure to offer a job after promising to do so);

Berg v. State Bd. of Agric., 919 P.2d 254, 259 (Colo. 1996) (failure to pay medical

expenses); see also Upper Platte & Beaver Canal Co. v. Riverview Commons Gen.

Improvement Dist., 250 P.3d 711, 713 (Colo. App. 2010) (impaired easement to access

ditch and increased risk of flooding); Kohn v. City of Boulder, 919 P.2d 822 (Colo. App.

1995) (denial of development plan); Lehman v. City of Louisville, 857 P.2d 455 (Colo.

App. 1992) (City Administrator’s determination that property use violated zoning

ordinance).



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¶23 In City of Lafayette v. Barrack, the plaintiffs filed several claims for relief,

including estoppel and declaratory judgment. 847 P.2d 136, 137 (Colo. 1993). But

unlike this case, the plaintiffs claimed that they had already been injured by the city’s

actions. Id. In Barrack, the City of Lafayette determined that it must terminate water

service to residences in Eldorado Springs because providing untreated water to

residences violated Department of Health regulations. Id. The City of Lafayette

adopted a resolution stating its intent to terminate water service and notified the

residents in a letter that water service would be terminated. Id. Several residents filed

suit against the City of Lafayette, alleging that “[t]he threat of [termination] ha[d]

reduced the market value of [their] properties and rendered such properties virtually

unmarketable at any fair price.” Id. (alteration in original). Thus, the Barrack plaintiffs

argued that the City of Lafayette’s resolution to terminate water service caused the

diminution in the value of their properties. Id. As such, the Barrack plaintiffs had

already suffered an injury by the time they filed their complaint. Id. Therefore, Barrack

parallels our CGIA precedent, which holds that the CGIA applies only to claims for a

past injury. See id.

¶24 Unlike Barrack, where the plaintiffs were injured by the City of Lafayette’s

resolution to terminate water service, Open Door was not immediately injured by the

possibility that Lipschuetz’s lawsuit would result in the revocation of its permit. When

Open Door filed its claims with the trial court, its permit was valid and it retained the

ability to use the property as it intended. Neither party suggests that the possibility that

the permit could be revoked caused any diminution of the value of 740 Clarkson.



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Therefore, Barrack does not support a conclusion that Open Door was injured before it

filed its cross-claims.

¶25 In summary, the CGIA’s language clearly indicates that the legislature did not

intend for the CGIA to apply to claims for relief from future injury. Moreover, in every

case where we have considered whether the CGIA applies to a claim, we have

examined the nature of the injury that the plaintiff has already suffered. We therefore

hold that CGIA does not bar claims for prospective relief to prevent future injury. The

question remains, then, whether Open Door has suffered an injury that would place its

claims within the CGIA’s purview and thus require it to comply with the notice

provision.

C. Open Door Has Not Yet Suffered an Injury.

¶26 Because Open Door still holds a valid permit and operates 740 Clarkson for its

intended purpose—transitional housing—we conclude that Open Door has not been

injured. Therefore, Open Door’s cross-claims seek relief to prevent a future injury.

Consequently, the CGIA does not apply to the claims, and Open Door was not required

to comply with the CGIA’s notice provision.

¶27 Lipschuetz, in an attempt to bar Open Door’s cross-claims against the City,

contends that Open Door previously suffered an injury that would support a negligent

misrepresentation claim.3 Because a negligent misrepresentation claim could lie in tort,

he argues, the cross-claims are subject to the CGIA. Lipscheutz claims that Open Door

3 The City admitted Open Door’s allegations and defended the permit. The City never claimed immunity under the CGIA.



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was injured when it bought 740 Clarkson because, at that time, Open Door bought the

property in reliance on the City’s “misrepresentation” that the permit was valid. Open

Door failed to notify the City of its intent to bring a claim within 182 days of its

acquisition of the property. See § 24-10-109(1). Therefore, Lipschuetz claims, Open

Door’s cross-claims are barred by the CGIA. Id. We disagree.

¶28 Essentially, Lipschuetz argues that a party is always injured when it buys or sells

property in reliance on a statement that could be a misrepresentation. To support his

argument that Open Door was injured when it bought 740 Clarkson, Lipschuetz cites a

court of appeals case and several cases from other jurisdictions. See Resp’t’s Br. 17–18

(citing Deutsche Tr. Co. Ams. v. Samora, 2013 COA 81, ¶ 27, 321 P.3d 590, 596; Shepard

v. Holmes, 345 P.3d 786, 791 (Wash. Ct. App. 2014); Gilchrist Timber Co. v. ITT

Rayonier Inc., 472 F.3d 1329, 1332–33 (11th Cir. 2006); Fandy Corp. v. Lun-Fong Chen,

691 N.Y.S.2d 572, 573 (App. Div. 1999)). However, these cases do not support the

conclusion that a party is always injured at the moment he buys or sells property after

relying on a misrepresentation. Instead, the cases answer altogether different inquiries,

such as when a cause of action accrues,4 Deutsche Tr. Co. Ams., ¶ 27, 321 P.3d at 596;

4 The question of when a cause of action accrues is separate from when an injury occurs. Section 13-80-108, C.R.S. (2015), governs the accrual of various causes of action. The statute does not equate a claim’s accrual with the date that a party suffers an injury, but instead recognizes that the two events may happen at different times. See § 13-80-108(1) (stating that a claim accrues when “both the injury and its cause are known”); § 13-80-108(3) (recognizing that misrepresentation claims accrue when the misrepresentation is discovered). But even if we were to agree that a party is injured at the same time that a claim accrues, as Lipschuetz suggests, we would still conclude that Open Door had not been injured when it bought 740 Clarkson. When it bought the



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Shepard, 345 P.3d at 791; Fandy Corp., 691 N.Y.S.2d at 573, or from which point in time

prejudgment interest should be calculated, Gilchrist Timber Co., 472 F.3d at 1332–33.

¶29 Open Door was not injured when it bought 740 Clarkson.5 Before Open Door

bought 740 Clarkson, it obtained a permit to operate the property for transitional

housing. When it filed its cross-claims, Open Door’s permit was still valid, and Open

Door continued to use the property for its intended purpose. Cf. Lehman, 857 P.2d at

456 (noting that the plaintiffs claimed that they were injured by the City

Administrator’s determination that they could not use their property as they had

intended); Shepard, 345 P.3d at 791 (stating that plaintiff was injured because she was

barred from developing the property as she had intended). Additionally, neither party

claims that Open Door suffered a pecuniary loss by purchasing 740 Clarkson for more

than it was worth. Cf. Gilchrist Timber Co., 472 F.3d at 1332–33 (noting that purchaser

suffered an immediate, monetary loss by purchasing property for more than it was

worth). Thus, had Open Door attempted to file a claim that “could lie in tort” when it

bought the property, as Lipschuetz suggests, no injury would have existed—measured

either by diminished usefulness of the property or monetary loss—to support the claim.

property, Open Door had no reason to believe that the City had improperly issued the permit, so the claim did not accrue at that time. § 13-80-108(3). 5 Lipschuetz argues that if Open Door has not suffered an injury, then it lacks standing to pursue its cross-claims. However, this argument conflates the injury-in-fact requirement for standing with the injury requirement for the CGIA. Injury, as defined by the CGIA, includes only injuries that have already occurred. See §§ 24-10-103(2), -106, -109(1). By contrast, a party may satisfy the injury-in-fact requirement for standing by showing that an action “threatens to cause injury to the plaintiff’s present or imminent activities.” Bd. of Cty. Comm’rs v. Bowen/Edwards Assocs., 830 P.2d 1045, 1053 (Colo. 1992).



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See 74 Am. Jur. 2d Torts § 9. Accordingly, Open Door was not injured when it

purchased the property.

¶30 Open Door also was not injured by the possibility that Lipschuetz’s suit could

result in the revocation of the permit. Cf. Barrack, 847 P.2d at 137 (noting that the

plaintiffs alleged that their property values decreased when the city resolved to

terminate water service). Open Door filed its cross-claims before the trial court

determined that the City issued the permit improperly. Therefore, Open Door was not

injured when it filed its cross-claims. At the time of filing, Open Door’s cross-claims

clearly sought relief to prevent a possible, but not inevitable, injury.

¶31 Accordingly, because Open Door had not suffered an injury when it filed its

cross-claims, it was not required to comply with the CGIA’s notice provision.

Lipschuetz’s attempt to invoke the CGIA to block Open Door’s cross-claims fails. The

trial court had jurisdiction over Open Door’s cross-claims.

The CGIA protects governmental entities from claims for injuries that “lie in tort

or could lie in tort.” § 24-10-106. The statute does not apply to claims for prospective relief from an injury that has not yet occurred. Therefore, because Open Door was not injured at the time of filing, the CGIA did not apply to its claims, and Open Door was not required to comply with the CGIA’s notice provision. See § 24-10-109(1). Accordingly, we reverse the court of appeals’ decision and remand the case for

proceedings consistent with this opinion.