Mostellar v. Colo Springs

23CA1908 Mostellar v City of Colo Spgs 10-24-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1908
El Paso County District Court No. 23CV31616
Honorable Eric Bentley, Judge

Jaimi J. Mostellar,

Plaintiff-Appellee,

v.

City of Colorado Springs, a Colorado municipality,

Defendant-Appellant.

ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division V
Opinion by JUDGE GROVE
Lum, J., concurs
Freyre, J., specially concurs

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 24, 2024

Kane Law Firm, P.C., Mark H. Kane, Colorado Springs, Colorado, for Plaintiff-
Appellee

Wynetta P. Massey, City Attorney, W. Erik Lamphere, Division Chief, Colorado
Springs, Colorado, for Defendant-Appellant
¶1 Defendant, the City of Colorado Springs, appeals the district

court’s order denying its motion to dismiss based on the failure of

plaintiff, Jaimi Mostellar, to provide timely notice of her claim under

the Colorado Governmental Immunity Act (CGIA). We reverse,

holding that because Mostellar did not provide timely notice to

Colorado Springs as required by the CGIA, the district court did not

have subject matter jurisdiction over the case. We also remand to

the district court to determine Colorado Springs’s reasonable

attorney fees.

I. Background

¶2 Mostellar alleged in her complaint that, on August 26, 2021,

she was walking on a sidewalk in Manitou Springs when she

tripped over the remnant of a bus stop sign and fell, injuring

herself. Believing that Manitou Springs was responsible for

maintaining the sign, she gave timely notice of her claim to Manitou

Springs 131 days after her fall. See § 24-10-109(1), C.R.S. 2024

(requiring a “person claiming to have suffered an injury by a public

entity” to “file a written notice as provided in this section within one

hundred eighty-two days after the date of the discovery of the

injury”).

1
¶3 However, in April 2023, approximately a year and a half after

Mostellar’s fall, Manitou Springs informed her it was not

responsible for maintaining the sign. Instead, Manitou Springs

asserted that the sign was Colorado Springs’s responsibility under

an intergovernmental agreement between the cities for bus services.

¶4 Mostellar notified Colorado Springs of her claim in May 2023,

roughly one month after Manitou Springs told her about the

intergovernmental agreement but more than 600 days after she was

injured. Mostellar ultimately filed suit against Colorado Springs on

August 24, 2023.

¶5 Colorado Springs moved to dismiss Mostellar’s complaint,

asserting that the district court lacked subject matter jurisdiction

because Mostellar failed to provide Colorado Springs with notice of

her claim within the CGIA’s 182-day deadline.

¶6 Noting that there were no factual disputes, the district court

denied the motion to dismiss after concluding that the CGIA’s

notice period did not begin to run until Mostellar was informed of

the intergovernmental agreement between Manitou Springs and

Colorado Springs. Thus, the court ruled that because Mostellar

provided notice to Colorado Springs within 182 days of learning of

2
the intergovernmental agreement, she complied with section 24-10-

109(1).

¶7 Colorado Springs now appeals the district court’s denial of its

motion to dismiss as permitted by section 24-10-108, C.R.S. 2024.

II. Standard of Review and Applicable Law

¶8 Timely notice under the CGIA is a matter of subject matter

jurisdiction. See Trinity Broad. of Denver, Inc. v. City of

Westminster, 848 P.2d 916, 924 (Colo. 1993). Whether a plaintiff

has satisfied the CGIA’s notice requirement is a mixed question of

law and fact. City & Cnty. of Denver v. Crandall, 161 P.3d 627, 633

(Colo. 2007). However, where, as here, the jurisdictional facts are

undisputed, we apply de novo review. Id.; see also Winkler v. Rocky

Mountain Conf. of United Methodist Church, 923 P.2d 152, 159

(Colo. App. 1995) (“[I]f the undisputed facts clearly show that a

plaintiff discovered, or reasonably should have discovered, the

negligent conduct as of a particular date, the issue may be decided

as a matter of law.”).

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III. Mostellar’s Notice was Untimely

¶9 Colorado Springs contends the district court erroneously

found that Mostellar complied with the CGIA’s notice requirement.

We agree.

¶ 10 The CGIA requires a person claiming to have suffered an

injury by a public entity to file written notice with the entity within

182 days “after the date of the discovery of the injury, regardless of

whether the person then knew all of the elements of a claim or of a

cause of action for such injury.” § 24-10-109(1). The 182-day

deadline is jurisdictional, and because it is a non-claim provision, it

cannot be waived, tolled, or estopped. Mesa Cnty. Valley Sch. Dist.

No. 51 v. Kelsey, 8 P.3d 1200, 1206 (Colo. 2000). Thus, failure to

strictly comply with the CGIA’s notice requirements requires

dismissal of the action. See Crandall, 161 P.3d at 633-34; Reg’l

Transp. Dist. v. Lopez, 916 P.2d 1187, 1190-91 (Colo. 1996).

¶ 11 The CGIA’s notice period begins when a claimant “knew or,

through the exercise of reasonable diligence, should have known”

that she was wrongfully injured. Trinity, 848 P.2d at 927. The

claimant need not yet know the cause of the injury or the extent of

the damage. Gallagher v. Bd. of Trs. for Univ. of N. Colo., 54 P.3d

4
386, 391 (Colo. 2002), abrogated on other grounds by Martinez v.

Est. of Bleck, 2016 CO 58. Nor is the claimant required to know the

identity of the tortfeasor for the CGIA’s notice period to begin. See

E. Lakewood Sanitation Dist. v. Dist. Ct., 842 P.2d 233, 233-36

(Colo. 1992); Abrahamson v. City of Montrose, 77 P.3d 819, 821

(Colo. App. 2003).

¶ 12 Citing East Lakewood, 842 P.2d at 235-36, the district court

acknowledged in its order that “[a] claimant’s ignorance as to what

parties may bear responsibility for the injury is not a defense to the

notice deadline.” But the court nonetheless denied the motion to

dismiss, distinguishing East Lakewood on the basis that “Mostellar

could [not] reasonably have been expected to know that [Colorado

Springs] had any potential liability or to find out about the

intergovernmental agreement between the two municipalities other

than by proceeding as she did — giving Manitou Springs notice of

her claim and awaiting its response.” Under these circumstances,

the court concluded, it was required to follow the “squarely on

point” holding of State v. Young, 665 P.2d 108 (Colo. 1983), and

deny the motion to dismiss.

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¶ 13 For two reasons, we disagree with the district court’s reliance

on Young and conclude that Mostellar’s notice period under the

CGIA began to run on August 26, 2021, the date of her fall.

¶ 14 First, the district court’s adherence to Young does not

adequately account for the General Assembly’s 1986 decision to

amend section 24-10-109(1) in direct response to the supreme

court’s holding in that case. The amendment to section 24-10-

109(1) was intended, in part, to clarify that the CGIA’s notice period

is triggered by the discovery of the injury, and not by the discovery

of the legal theory for the plaintiff’s claim. See Lopez, 916 P.2d at

1192-93. Following the passage of this statutory amendment, an

injured party has the burden to “determine the cause of the injury,

to ascertain whether a governmental entity or public employee is

the cause, and to notify the governmental entity” within the

statutory time limit. Trinity, 848 P.2d at 927.

¶ 15 Nothing in Young suggests that a claimant’s ability — or

inability — to identify the governmental entity that caused her

injury has any bearing on the date on which the CGIA notice clock

starts. Indeed, there was never any question in Young that the

Colorado State Patrol was the entity responsible for allegedly

6
negligently misfiling the traffic ticket and summons that ultimately

led to the plaintiff’s unlawful arrest and her subsequent tort claim.

Instead, the holding in Young hinged on the supreme court’s

conclusion that the plaintiff could not have sought redress under

the CGIA until she received confirmation of the officer’s error via a

copy of the El Paso County Court docket. Young, 665 P.2d at 110

(“Young’s claim that the defendants negligently misfiled the original

traffic complaint and summons [that led to her arrest] could not

have been brought until Young discovered the alleged negligence

upon receipt of the docket sheet on March 17, 1978.”). That is,

although the plaintiff knew that she had been arrested, she did not

discover that her arrest was wrongful until she confirmed her

suspicions via the court docket. Accordingly, applying the pre-1986

version of section 24-10-109(1), the supreme court held that the

CGIA clock began running on the date that she received the docket

instead of on the date of her arrest. Id. at 111. Nowhere in Young,

however, do we see any suggestion that the statutory deadline

should be similarly extended in cases where the identity of the at-

fault governmental entity is not immediately clear. To the contrary,

the statute “imposes a mandatory requirement that claimants . . .

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file a written notice within one hundred eighty[-two] days from the

date on which they discovered their injuries.” E. Lakewood, 842

P.2d at 236.

¶ 16 Second, there are material distinctions between the

circumstances in Young and the facts here. As we have already

noted, the Young court found it significant that the plaintiff could

not be certain that her arrest was wrongful until she received a

copy of the docket that allowed her to “discover[] the alleged

negligence.” Young, 665 P.2d at 110. There was no such

uncertainty in this case because, assuming the accuracy of the

allegations in the complaint, it would have been immediately

apparent that Mostellar’s fall and injury was the result of negligence

that met the CGIA’s definition of “injury.” See § 24-10-103(2),

C.R.S. 2024 (“‘Injury’ means . . . injury to a person, . . . of

whatsoever kind, which, if inflicted by a private person, would lie in

tort or could lie in tort . . . .”). Because Mostellar knew or should

have known that she was injured by falling over the remnant of the

sign, and because an injury caused by the dangerous condition of a

public sidewalk lies in tort or could lie in tort, see § 24-10-

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106(1)(d)(I), C.R.S. 2024, the CGIA’s clock started running right

away.

¶ 17 We are not persuaded otherwise by Mostellar’s argument that

she should be deemed to have satisfied the notice requirement

because she investigated and pursued her claim with reasonable

diligence. Section 24-10-109(1) requires strict compliance with the

182-day deadline. Substantial compliance is not enough. See

Lopez, 916 P.2d at 1190 (“Failure to strictly comply with the 18[2]-

day notice requirement results in dismissal of the action.”); E.

Lakewood, 842 P.2d at 236 (“The General Assembly, by

incorporating the word ‘shall,’ indicated that the 18[2]–day time

requirement must be complied with as a jurisdictional

prerequisite.”); Armstead v. Mem’l Hosp., 892 P.2d 450, 452-53

(Colo. App. 1995) (rejecting plaintiff’s argument that “only

‘substantial compliance’ is required with respect to the notice given

by claimants pursuant to § 24-10-109(1),” and holding that “when a

party fails to establish that proper notice was provided in

compliance with the 18[2]–day notice requirement, the party’s

action must be dismissed”).

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¶ 18 Mostellar knew that she was wrongfully injured on August 26,

2021, and had the burden to investigate her claim and provide

CGIA-compliant notice to Colorado Springs within 182 days of that

date. Because she did not provide the required notice until 602

days had passed, she failed to strictly comply with the statutory

deadline and her complaint should have been dismissed for lack of

subject matter jurisdiction.1

IV. Attorney Fees

¶ 19 Colorado Springs also requests its attorney fees — incurred in

the district court and on appeal — under section 13-17-201, C.R.S.

2024. An award of attorney fees under that statute is mandatory

when a court dismisses a tort action under C.R.C.P. 12(b) before

trial. Crandall v. City & Cnty. of Denver, 238 P.3d 659, 663 (Colo.

2010). Appellate attorney fees are likewise mandatory. See Falcon

1 Like the special concurrence, we acknowledge that this is a harsh

result, and perhaps an inequitable one, under these circumstances.
Nevertheless, we are bound by East Lakewood Sanitation District v.
District Court, 842 P.2d 233, 233-36 (Colo. 1992), in which the
supreme court held that the language of section 24-10-109(1),
C.R.S. 2024, unambiguously requires strict compliance with the
182-day deadline.

10
Broadband, Inc. v. Banning Lewis Ranch Metro. Dist. No. 1, 2018

COA 92, ¶ 66.

¶ 20 Because we conclude that the district court did not have

subject matter jurisdiction over Mostellar’s complaint against

Colorado Springs, Colorado Springs is entitled to its reasonable

attorney fees incurred in the district court and on appeal. We

therefore remand this case to the district court to determine

Colorado Springs’s reasonable attorney fees. See C.A.R. 39.1.

V. Disposition

¶ 21 We reverse the district court’s order and remand the case with

directions to dismiss Mostellar’s tort claims and to determine

Colorado Springs’ reasonable attorney fees.

JUDGE LUM concurs.

JUDGE FREYRE specially concurs.

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JUDGE FREYRE, specially concurring

¶ 22 While I agree with the majority’s reasoning and its application

of the law, I write separately to express my concern with the policy

implications of our decision and to suggest that the General

Assembly consider statutory modifications to section 24-10-109(1),

C.R.S. 2024, to address this concern.

¶ 23 The Colorado Supreme Court has made clear that the notice

provision of the Colorado Government Immunity Act (CGIA) should

not act as a “trap for the unwary,” Jefferson Cnty. Health Servs.

Ass’n v. Feeney, 974 P.2d 1001, 1003 (Colo. 1998), and that

“interpretations of the [C]GIA should not permit public entities to

manipulate the notice provision to dodge otherwise proper suits,”

Finnie v. Jefferson Cnty. Sch. Dist. R-1, 79 P.3d 1253, 1258 (Colo.

2003). While these cases concerned section 24-10-109(3), and not

the provision at issue here, section 24-10-109(1), the facts of this

case illustrate the real possibility that public entities can

manipulate the jurisdictional 182-day notice requirement by failing

to timely inform a plaintiff of intergovernmental agreements (IAs)

affecting jurisdiction.

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¶ 24 Cases interpreting section 24-10-109(1) have consistently held

that it is a non-claim statute not subject to equitable defenses such

as waiver, tolling, or estoppel, Mesa Cnty. Valley Sch. Dist. No. 51 v.

Kelsey, 8 P.3d 1200, 1206 (Colo. 2000), and that strict compliance

with its terms is required, Finnie, 79 P.3d at 1256. Such an

interpretation facilitates the public policy of “prompt investigation[]

of claims and remedies of dangerous conditions by public entities.”

E. Lakewood Sanitation Dist. v. Dist. Ct., 842 P.2d 233, 236 (Colo.

1992). And we reach the decision we do here because we are bound

by decisions of the supreme court. People v. Smith, 183 P.3d 726,

729 (Colo. App. 2008).

¶ 25 However, the facts of this case contradict this “prompt

investigation” policy and beg the question why it took the City of

Manitou Springs a year and a half to inform Mostellar of an IA that

was executed only a few months before her fall. The city’s delay

made it impossible for her to comply with section 24-10-109(1).

Moreover, the length of the delay raises the question whether the

IA’s existence was discoverable through the exercise of reasonable

diligence.

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¶ 26 Case law in the context of section 24-10-109(3) makes clear

that “[a]llowing public entities to mislead plaintiffs about how to

meet the requirements of the notice provision, and then to assert

the affirmative defense of noncompliance, is beyond the legitimate

purposes of the [C]GIA’s notice provision.” Finnie, 79 P.3d at 1258.

I see no reason why this same policy should not apply to section

24-10-109(1). Accordingly, I specially concur.

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