24CA1011 Gilbertson v Paonia 01-30-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1011 Delta County District Court No. 24CV1 Honorable Mary E. Deganhart, Judge
Erik Gilbertson,
Plaintiff-Appellee,
v.
Town of Paonia and Stefen Wynn,
Defendants-Appellants.
ORDER AFFIRMED
Division I Opinion by JUDGE YUN J. Jones and Brown, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 30, 2025
Erik Gilbertson, Pro Se
Goldman, Nicholson & Mack, P.C., Josh W. Mack, Durango, Colorado, for Defendants-Appellants ¶1 The defendants, the Town of Paonia (the Town) and its Town
Administrator, Stefen Wynn (the Administrator), appeal the district
court’s order denying in part their motion under the Colorado
Governmental Immunity Act (CGIA), §§ 24-10-101 to -120, C.R.S.
2024, to dismiss claims brought by the plaintiff, Erik Gilbertson.
We affirm.
I. Background
¶2 The following facts are undisputed for purposes of this
interlocutory appeal.
¶3 Although Gilbertson’s property is outside the Town’s
boundaries, it has received water service from the Town’s municipal
water system for years. The Town charges water users a base rate
plus a fee based on actual water usage. Before Gilbertson acquired
the property, the Town allowed the previous owner to self-report
water usage; however, there was a period of time during which the
previous owner was subject to conservatorship and did not report
usage. After Gilbertson acquired the property, he likewise did not
report water usage, and the Town thus charged him only the base
rate.
1 ¶4 On January 23, 2023, a member of the Town’s Public Works
Department (the Department) went to Gilbertson’s property to
locate the water meter. Gilbertson told him that the water meter
was in the basement. As relevant here, the Paonia Municipal Code
(the Code) provides that, if a water meter is located “inside a
structure,” the property owner “may be required to relocate their
meter or install a remote radio meter.” Paonia, Colo., Mun. Code
§ 13-1-90 (2023). If the property owner “has not made satisfactory
remedy within forty-five (45) days of a written notice from the Town,
the Town may relocate the meter in question [or] install a radio
meter.” Id.
¶5 Two days later, several Department members went to
Gilbertson’s property and attempted to install a radio meter.
Gilbertson was not at home, and his wife refused entry. Later that
day, Gilbertson called the Department and requested a written
notice from the Town.
¶6 On January 31, the Town shut off Gilbertson’s water service
and taped a letter signed by the Administrator to his door accusing
him of water theft. The same day, Gilbertson sent a letter to the
Department explaining that he considered a radio meter “a harmful
2 device” and offering to allow inspection of the water meter and to
self-report water usage by “tak[ing] a picture [of the meter] and
bring[ing] it to the Town of Paonia’s office every month with
payment.”
¶7 After two weeks without water, Gilbertson filed suit, alleging
the breach of a “trustee-beneficiary relationship” between the Town
and himself, a violation of his due process rights under the
Colorado Constitution, and a violation of the forty-five day written
notice requirement in the Code. As relief, he requested
(1) reinstatement of his water service; (2) monetary damages of
$3,000 per day without water; (3) monetary damages of $500 per
hour spent and $1 per mile traveled in his efforts to get his water
turned back on; (4) a letter of apology from the Town; and (5) the
removal of the Administrator from office.1
¶8 The defendants moved to dismiss Gilbertson’s claims under
C.R.C.P. 12(b)(1), arguing that the district court lacked subject
matter jurisdiction because the claims lie in tort or could lie in tort
1 In his amended complaint, Gilbertson requested two additional
categories of monetary damages: $525 per month without water to recoup the rent discount he gave to a tenant living on the property, and $6,000 for emergency cistern installation.
3 and, therefore, the CGIA grants the defendants immunity from suit.
The district court granted the defendants’ motion in part and
denied it in part. First, the court found that Gilbertson’s claims for
damages could lie in tort. Because “the only plausible basis for
damages would be the allegation of breach of a ‘trustee-beneficiary’
relationship,” which was “essentially a tort claim for breach of
fiduciary duty,” Gilbertson’s claims for compensatory damages are
barred by the CGIA. But the court found that his other claims for
relief, which “appear[ed] to seek various forms of injunctive and
declaratory relief based on alleged violations of due process and the
[Code],” did not lie in tort and therefore are not barred.
¶9 The defendants now appeal.
II. Analysis
¶ 10 The defendants contend that the district court erred by
concluding that Gilbertson’s claims seeking injunctive and
declaratory relief are not claims that lie in tort or could lie in tort.
We are not persuaded.
A. Standard of Review
¶ 11 Whether a public entity is immune from suit under the CGIA
is a question of subject matter jurisdiction for the district court to
4 determine in accordance with C.R.C.P. 12(b)(1). City of Aspen v.
Burlingame Ranch II Condo. Owners Ass’n, 2024 CO 46, ¶ 23. The
issue under the CGIA is not whether the claim “was properly pled,
but whether the claim could have been brought as a tort.” Casey v.
Colo. Higher Educ. Ins. Benefits All. Tr., 2012 COA 134, ¶ 19,
abrogated on other grounds by Burlingame, ¶ 65. Courts make that
determination “on a case-by-case basis through a close examination
of the pleadings and undisputed evidence.” Robinson v. Colo. State
Lottery Div., 179 P.3d 998, 1004 (Colo. 2008). When, as here, the
alleged jurisdictional facts are not in dispute, the question is one of
law that the court can resolve without a hearing. Burlingame, ¶ 23.
And in such a case, our review of the district court’s ruling is de
novo. Id.
B. The CGIA
¶ 12 Section 24-10-108, C.R.S. 2024, of the CGIA states that, with
certain exceptions not pertinent here, “sovereign immunity shall be
a bar to any action against a public entity for injury which lies 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.”
5 ¶ 13 The form of the complaint does not determine whether a claim
lies or could lie in tort for purposes of the CGIA. Burlingame, ¶ 30.
Instead, a court must consider the nature of the injury and the
relief sought. Id. at ¶ 31. As the Colorado Supreme Court has put
it,
[w]hen the injury arises either out of conduct that is tortious in nature or out of the breach of a duty recognized in tort law, and when the aim of the requested relief is to compensate the plaintiff for that injury, the claim likely lies in tort or could lie in tort for purposes of the CGIA.
Id. (citing Robinson, 179 P.3d at 1003). The nature of the relief
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24CA1011 Gilbertson v Paonia 01-30-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1011 Delta County District Court No. 24CV1 Honorable Mary E. Deganhart, Judge
Erik Gilbertson,
Plaintiff-Appellee,
v.
Town of Paonia and Stefen Wynn,
Defendants-Appellants.
ORDER AFFIRMED
Division I Opinion by JUDGE YUN J. Jones and Brown, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 30, 2025
Erik Gilbertson, Pro Se
Goldman, Nicholson & Mack, P.C., Josh W. Mack, Durango, Colorado, for Defendants-Appellants ¶1 The defendants, the Town of Paonia (the Town) and its Town
Administrator, Stefen Wynn (the Administrator), appeal the district
court’s order denying in part their motion under the Colorado
Governmental Immunity Act (CGIA), §§ 24-10-101 to -120, C.R.S.
2024, to dismiss claims brought by the plaintiff, Erik Gilbertson.
We affirm.
I. Background
¶2 The following facts are undisputed for purposes of this
interlocutory appeal.
¶3 Although Gilbertson’s property is outside the Town’s
boundaries, it has received water service from the Town’s municipal
water system for years. The Town charges water users a base rate
plus a fee based on actual water usage. Before Gilbertson acquired
the property, the Town allowed the previous owner to self-report
water usage; however, there was a period of time during which the
previous owner was subject to conservatorship and did not report
usage. After Gilbertson acquired the property, he likewise did not
report water usage, and the Town thus charged him only the base
rate.
1 ¶4 On January 23, 2023, a member of the Town’s Public Works
Department (the Department) went to Gilbertson’s property to
locate the water meter. Gilbertson told him that the water meter
was in the basement. As relevant here, the Paonia Municipal Code
(the Code) provides that, if a water meter is located “inside a
structure,” the property owner “may be required to relocate their
meter or install a remote radio meter.” Paonia, Colo., Mun. Code
§ 13-1-90 (2023). If the property owner “has not made satisfactory
remedy within forty-five (45) days of a written notice from the Town,
the Town may relocate the meter in question [or] install a radio
meter.” Id.
¶5 Two days later, several Department members went to
Gilbertson’s property and attempted to install a radio meter.
Gilbertson was not at home, and his wife refused entry. Later that
day, Gilbertson called the Department and requested a written
notice from the Town.
¶6 On January 31, the Town shut off Gilbertson’s water service
and taped a letter signed by the Administrator to his door accusing
him of water theft. The same day, Gilbertson sent a letter to the
Department explaining that he considered a radio meter “a harmful
2 device” and offering to allow inspection of the water meter and to
self-report water usage by “tak[ing] a picture [of the meter] and
bring[ing] it to the Town of Paonia’s office every month with
payment.”
¶7 After two weeks without water, Gilbertson filed suit, alleging
the breach of a “trustee-beneficiary relationship” between the Town
and himself, a violation of his due process rights under the
Colorado Constitution, and a violation of the forty-five day written
notice requirement in the Code. As relief, he requested
(1) reinstatement of his water service; (2) monetary damages of
$3,000 per day without water; (3) monetary damages of $500 per
hour spent and $1 per mile traveled in his efforts to get his water
turned back on; (4) a letter of apology from the Town; and (5) the
removal of the Administrator from office.1
¶8 The defendants moved to dismiss Gilbertson’s claims under
C.R.C.P. 12(b)(1), arguing that the district court lacked subject
matter jurisdiction because the claims lie in tort or could lie in tort
1 In his amended complaint, Gilbertson requested two additional
categories of monetary damages: $525 per month without water to recoup the rent discount he gave to a tenant living on the property, and $6,000 for emergency cistern installation.
3 and, therefore, the CGIA grants the defendants immunity from suit.
The district court granted the defendants’ motion in part and
denied it in part. First, the court found that Gilbertson’s claims for
damages could lie in tort. Because “the only plausible basis for
damages would be the allegation of breach of a ‘trustee-beneficiary’
relationship,” which was “essentially a tort claim for breach of
fiduciary duty,” Gilbertson’s claims for compensatory damages are
barred by the CGIA. But the court found that his other claims for
relief, which “appear[ed] to seek various forms of injunctive and
declaratory relief based on alleged violations of due process and the
[Code],” did not lie in tort and therefore are not barred.
¶9 The defendants now appeal.
II. Analysis
¶ 10 The defendants contend that the district court erred by
concluding that Gilbertson’s claims seeking injunctive and
declaratory relief are not claims that lie in tort or could lie in tort.
We are not persuaded.
A. Standard of Review
¶ 11 Whether a public entity is immune from suit under the CGIA
is a question of subject matter jurisdiction for the district court to
4 determine in accordance with C.R.C.P. 12(b)(1). City of Aspen v.
Burlingame Ranch II Condo. Owners Ass’n, 2024 CO 46, ¶ 23. The
issue under the CGIA is not whether the claim “was properly pled,
but whether the claim could have been brought as a tort.” Casey v.
Colo. Higher Educ. Ins. Benefits All. Tr., 2012 COA 134, ¶ 19,
abrogated on other grounds by Burlingame, ¶ 65. Courts make that
determination “on a case-by-case basis through a close examination
of the pleadings and undisputed evidence.” Robinson v. Colo. State
Lottery Div., 179 P.3d 998, 1004 (Colo. 2008). When, as here, the
alleged jurisdictional facts are not in dispute, the question is one of
law that the court can resolve without a hearing. Burlingame, ¶ 23.
And in such a case, our review of the district court’s ruling is de
novo. Id.
B. The CGIA
¶ 12 Section 24-10-108, C.R.S. 2024, of the CGIA states that, with
certain exceptions not pertinent here, “sovereign immunity shall be
a bar to any action against a public entity for injury which lies 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.”
5 ¶ 13 The form of the complaint does not determine whether a claim
lies or could lie in tort for purposes of the CGIA. Burlingame, ¶ 30.
Instead, a court must consider the nature of the injury and the
relief sought. Id. at ¶ 31. As the Colorado Supreme Court has put
it,
[w]hen the injury arises either out of conduct that is tortious in nature or out of the breach of a duty recognized in tort law, and when the aim of the requested relief is to compensate the plaintiff for that injury, the claim likely lies in tort or could lie in tort for purposes of the CGIA.
Id. (citing Robinson, 179 P.3d at 1003). The nature of the relief
sought is not itself dispositive of whether a claim lies or could lie in
tort. Id. But the relief requested “informs our understanding of the
nature of the injury and the duty allegedly breached.” Id.
¶ 14 Ultimately, the question of whether the CGIA bars a claim
“turns on the source and nature of the government’s liability, or the
nature of the duty from the breach of which liability arises.” Colo.
Dep’t of Transp. v. Brown Grp. Retail, Inc., 182 P.3d 687, 690 (Colo.
2008). The CGIA’s immunity “encompasses all claims against a
public entity arising from the breach of a general duty of care, as
6 distinguished from contractual relations or a distinctly non-tortious
statutorily-imposed duty.” Id. at 691.
C. Discussion
¶ 15 The defendants argue that all of Gilbertson’s claims “seek
redress for perceived personal injury from an alleged violation of a
general duty of care.” Because the CGIA’s immunity encompasses
all such claims, they argue, Gilbertson’s claims for injunctive and
declaratory relief, like his claims for damages, are barred.
¶ 16 But as the district court found, Gilbertson’s claims for
injunctive and declaratory relief are based on alleged violations of
due process and the Code. Specifically, his amended complaint
alleges that
• although he sent the Department a letter “asking for
evidence of [water] theft, and asking for the water to be
turned back on while we investigate the theft allegation,”
the Town had not provided proof of theft and the water
had remained off;
• “[t]he disconnection of [his] water service without proper
notice and an opportunity to be heard violates [his] right
to due process under the Colorado Constitution”; and
7 • he “was not provided with proper notice before [the Town]
demand[ed] a new water meter installation,” in violation
of section 13-1-90(b) of the Code, which requires
forty-five days’ written notice before the Town may install
a radio meter.
The “nature of the injury” alleged was thus that the Town shut off
Gilbertson’s water without notice, proof of theft, or an opportunity
to present his side of the story — that is, without a fair process, see
Burlingame, ¶ 31 (quoting Robinson, 179 P.3d at 1003), and did so
in violation of its own ordinances. As the district court correctly
noted, claims with a “constitutional genesis” or based on a
non-tortious statutory duty are not subject to the limitations of the
CGIA. See Jorgenson v. City of Aurora, 767 P.2d 756, 758 (Colo.
App. 1988); Colo. Dep’t of Transp., 182 P.3d at 691.
¶ 17 We are not persuaded otherwise by the defendants’ argument
that Gilbertson did not “allege a cognizable cause of action” or that
there is no private right of action to enforce the Colorado
Constitution or the Code. While such an argument may form the
basis for a C.R.C.P. 12(b)(5) motion, our jurisdiction in this appeal
is limited to deciding only whether the CGIA bars Gilbertson’s
8 claims for injunctive and declaratory relief. See § 24-10-108;
Podboy v. Fraternal Ord. of Police, Denver Sheriff Lodge 27, 94 P.3d
1226, 1231-32 (Colo. App. 2004) (only the district court’s CGIA
ruling is subject to interlocutory appeal). We conclude that the
CGIA does not bar those claims.
III. Disposition
¶ 18 The order is affirmed.
JUDGE J. JONES and JUDGE BROWN concur.