Gilbertson v. Paonia

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.

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¶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

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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.

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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

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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.”

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¶ 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

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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

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• 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

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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.

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