Date: 05-24-2016

Case Style: Open Door Ministries v. Lipschuetz

Case Number: 2016 CO 37

Judge: Nancy Rice

Court: The Supreme Court of the State of Colorado

Plaintiff's Attorney: John D. W. Partridge, Katherine C. Yarger, Laura M. Sturges, Timothy M. Zimmerman , Sara E. Carlisle, Monica K. Loseman
of the Denver office of Gibson, Dunn & Crutcher

Defendant's Attorney: Peter C. Forbes of Carver Schwarz McNab Kamper & Forbes, LLC with Jesse N. Lipschuetz 32

Description: 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.

Outcome: 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.

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