# Cline v. Rabson

> Colorado Court of Appeals · July 26, 1993 · 856 P.2d 1

URL: https://www.frixlaw.com/law-library/cases/9602692

## Case

- **Full name:** Clifford E. CLINE, Plaintiff-Appellant, v. Robert RABSON, the Police Department of the City of Loveland, a Governmental Entity, and the City of Loveland, a Municipal Corporation, Defendants-Appellees
- **Court:** Colorado Court of Appeals
- **Decided:** July 26, 1993
- **Citations:** 856 P.2d 1; 1992 WL 206952
- **Precedential status:** Published
- **Opinion:** On rehearing by Davidson
- **Judges:** Criswell, Jones, Davidson
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Declined to follow by Fogg v. MacAluso, 870 P.2d 525 (1994).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9602692

## Opinion text

ON PETITION FOR REHEARING
Judge DAVIDSON,
dissenting in part from the denial of petition for rehearing.
I would grant the petition for rehearing on Part I. I continue to agree, however, with the views expressed in Part II of that opinion.
I disagree with the holding that, when a public entity raises the issue of sovereign immunity in accordance with § 24-10-108, C.R.S. (1988 Repl.Vol. 10A), the trial court is precluded from taking evidence and adopting findings of fact. To the contrary, it is my opinion that in such circumstance the court is required to do so.
*6 This conclusion is premised on the clear language of § 24-10-108, as applicable here, which provides:
Except as provided in sections 24-10-104 to 24-10-106, sovereign immunity shall be a bar to any action against a public entity for injury which lies in [tort]. If a public entity raises the issue of sovereign immunity prior to or immediately after the commencement of discovery, the court shall suspend discovery, except any discovery necessary to decide the issue of sovereign immunity, and shall decide such issue on motion.
By this language, the General Assembly has limited the power of the court to proceed in any action in which there is sovereign immunity or until such issue is resolved. By doing so, I submit that the General Assembly has made sovereign immunity a matter of subject matter jurisdiction which must be determined before the action may advance.
Subject matter jurisdiction concerns the authority of the court to deal with the class of cases in which it renders judgment, In re Application for Water Rights of Monaghan Farms, Inc., 807 P.2d 9 (Colo.1991), and relates to the nature of the claim and the relief sought. “The test of whether a court has subject matter jurisdiction over a particular controversy depends upon the competency of the court to determine controversies of the general class that are presented for its consideration.” Stone’s Farm Supply, Inc. v. Deacon, 805 P.2d 1109, 1113 (Colo.1991). See People in Interest of Clinton, 762 P.2d 1381 (Colo. 1988). A court’s jurisdiction over the subject matter is derived from constitution or statute. Paine, Webber, Jackson & Curtis, Inc. v. Adams, 718 P.2d 508 (Colo. 1986).
The General Assembly made sovereign immunity a question of subject matter jurisdiction in 1986, when it amended the Governmental Immunity Act to provide that sovereign immunity is a bar to any action for injury in tort. Section 24-10-108. See Hearings on H.B. 1196 before the House State Affairs Committee, 55th General Assembly, 2nd Session (February 4, 1986). Prior to those amendments, sovereign immunity was merely a defense to suit, see Colo.Sess.Laws 1971, ch. 323, § 24-10-108 at 1207, and as such, if it was not properly raised or pled by a public entity, it could be waived. See City of Colorado Springs v. Gladin, 198 Colo. 333 , 599 P.2d 907 (1979); Valdez v. City & County of Denver, 764 P.2d 393 (Colo.App.1988).
Now, by the terms of § 24-10-108, unless a tort claim against a governmental entity specifically falls within an exception to sovereign immunity, see §§ 24-10-104, 24-10-105, 24-10-106, the court lacks authority to proceed with the case. See Stone’s Farm Supply, Inc. v. Deacon, supra.
A challenge to the court’s subject matter jurisdiction is appropriately made by the filing of a motion to dismiss pursuant to C.R.C.P. 12(b)(1). The court’s ability to consider and decide questions of fact under such a motion depends upon the nature of that challenge. If the motion attacks the sufficiency of the allegation of jurisdiction contained in the complaint, then all of the factual allegations are presumed to be true and the motion can be granted only if a plaintiff has failed to allege an element necessary for subject matter jurisdiction. See C.R.C.P. 8(a)(1) (if the court is of limited jurisdiction, pleading must set forth statement of the grounds upon which the court’s jurisdiction depends.) Furthermore, any defect in allegation of fact upon which the court’s jurisdiction depends can be cured or supplied by amendment. Francisco v. Cascade Investment Co., 29 Colo.App. 516 , 486 P.2d 447 (Colo.App. 1971); See also, Stuart v. Frederick R. Ross Investment Co., 113 P.2d 1107 (Colo. App.1988).
In contrast, regardless of the sufficiency of the allegations in the complaint, if the motion to dismiss attacks the court’s actual authority of the court to proceed and to hear the merits of the claim, then the court has the power and the obligation to resolve any factual disputes regarding the existence of subject matter jurisdiction. Guthrie v. Barda, 188 Colo. 124 , 533 P.2d 487 (1975). See State ex rel. Danielson v. *7 Vickroy, 627 P.2d 752 (Colo.1981); Davidson Chevrolet, Inc. v. City & County of Denver, 138 Colo. 171 , 330 P.2d 1116 (1958); Isham v. Miller, 80 Colo. 380 , 252 P. 353 (1926) (whenever jurisdiction of a court depends upon a question of fact, that court may try that question). In determining a factual challenge to subject matter jurisdiction, the allegations in the complaint are not presumed to be true. Accordingly, the existence of disputed issues of material fact on the jurisdictional issue not only does not preclude the trial court from deciding the merits of a jurisdictional claim, it requires the court to do so by resolving the factual dispute. See Guthrie v. Barda, supra; see also C.R.C.P. 12(d).
It therefore follows that since a factual attack of the court’s subject matter jurisdiction necessarily requires the trial court itself to resolve factual disputes related to that authority, such a challenge is not proper under C.R.C.P. 56 in which the trial court must deny a motion if there exist disputed issues of material fact. For the same reason, if the court considers factual matters outside the pleadings in resolving the factual dispute relating to the motion to dismiss for lack of subject matter jurisdiction, the motion is not converted into a motion for summary judgment. See C.R.C.P. 12(c).
This is buttressed by the fact that a motion for summary judgment is a determination on the merits of a claim. See Mt. Emmons Mining Co. v. Town of Crested Butte, 690 P.2d 231 (Colo.1984); 5 R. Hardaway & S. Hyatt, Colorado Civil Rules Annotated § 56.1 (1985). Because a dispute over the court’s subject matter jurisdiction should be determined before the court can reach the merits of the case, a challenge to subject matter jurisdiction is not properly made by the filing of a motion for summary judgment.
For the same reason, a challenge to actual subject matter jurisdiction should not be brought on a motion to dismiss for failure to state a claim under C.R.C.P. 12(b)(5). See, e.g. Mortensen v. First Federal Savings and Loan Ass’n, 549 F.2d 884 (3rd Cir.1977) (a ruling on a motion to dismiss for failure to state a claim results in a determination on the merits of a claim); see also 5A C. Wright & A. Miller, Federal Practice & Procedure § 1350 (1990).
In any event, and regardless of how the motion is denominated, an attack on subject matter jurisdiction should be treated procedurally by the court as a motion to dismiss under C.R.C.P. 12(b)(1) and, generally, should be promptly determined before the court proceeds further. This rule is particularly apt where sovereign immunity is raised because it is an immunity from suit, not merely from liability, and the purpose of the immunity is defeated if a ruling is postponed until trial. See Gould, Inc. v. Pechiney Ugine Kuhlmann, 853 F.2d 445 (6th Cir.1988); Gervasio v. United States, 627 F.Supp. 428 (N.D.I11.1986).
Based upon this, contrary to the view of the majority, I conclude that the plain language of § 24-10-108 requiring the trial court to suspend discovery on all issues except immunity once it has been raised and then to decide the issue “on motion,” is entirely consistent with the established rules of procedure to determine, by hearing and fact-finding if necessary, the existence of subject matter jurisdiction. And, this interpretation also accomplishes the legislative purpose of having the issue resolved promptly without unnecessary expenditure of funds.
Although they are inapplicable here, I also find instructive the 1992 amendments to § 24-10-108. The statute now reads, in pertinent part, that if a public entity raises sovereign immunity, “prior to or after the commencement of discovery, the court shall suspend discovery, except any discovery necessary to decide the issue of sovereign immunity, and shall decide such issue on motion. The court’s decision on such motion shall be a final judgment and shall be subject to interlocutory appeal.” Section 24-10-108, C.R.S. (1992 Cum.Supp.) (emphasis added). See Hearings on H.B. 1291 before the House Local Government Committee, 58th General Assembly, 2nd Session (February 17, 1992).
I recognize that, under this interpretation of § 24-10-108, the trial court cannot *8 postpone the jurisdictional issues until trial even if those questions are inextricably bound up with the merits of the case. See Osborn v. United States, 918 F.2d 724 (8th Cir.1990); see also Guthrie v. Barda, supra.
Further, I share the majority’s concern and also recognize that it is not completely clear whether the trial court’s preliminary factual findings made while denying the motion to dismiss, would be binding on the jury in their fact-finding role during the trial on the merits. See Governor’s Ranch Professional Center, Ltd. v. Mercy, 793 P.2d 648 (Colo.App.1990) (doctrine of law of the case “applies to decisions of law, rather than to the resolution of factual questions” 793 P.2d at 650 ).
Nonetheless, I conclude that this is what the General Assembly intended. Accordingly, I find no flaw in the procedure used by the trial court and therefore dissent to the majority holding to the contrary. And, because I agree with the analysis in Part II of the opinion, and there is record support for the trial court’s determination that Rab-son was not negligent, I would affirm the judgment of the trial court dismissing the complaint.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9602692. Public record. Not legal advice.