Nunnery v. City of Lamar

20CA1161 Nunnery v City of Lamar 01-20-2022

COLORADO COURT OF APPEALS

Court of Appeals No. 20CA1161

Prowers County District Court No. 18CV30019

Honorable Mark A. MacDonnell, Judge

Brian Nunnery, individually and d/b/a Nunnery Satellite and Home

Furnishings; and Karen Nunnery,

Plaintiffs-Appellants,

v.

City of Lamar and the Colorado Department of Transportation,

Defendants-Appellees.

JUDGMENT AFFIRMED

Division VI

Opinion by JUDGE NAVARRO

Harris and Freyre, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced January 20, 2022

Anne Whalen Gill, L.L.C., Anne Whalen Gill, Castle Rock, Colorado, for

Plaintiffs-Appellants

Philip J. Weiser, Attorney General, Gregg E. Carson, Senior Attorney General,

Leanne E. Carberry, Assistant Attorney General, Denver, Colorado, for

Defendant-Appellee Colorado Department of Transportation

Berg Hill Greenleaf Ruscitti LLP, Josh A. Marks, David J. Goldfarb, Boulder,

Colorado, for Defendant-Appellee City of Lamar

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¶ 1 Plaintiffs, Brian and Karen Nunnery, individually and d/b/a

Nunnery Satellite and Home Furnishings (collectively, the

Nunnerys), appeal the trial court’s judgment in favor of defendants,

City of Lamar and the Colorado Department of Transportation

(CDOT). We affirm.

I. Factual and Procedural History

¶ 2 The Nunnerys own property on the south side of Highway 50

near Lamar. Access to the property is over three bridges spanning

a drainage canal that was constructed as part of a drainage project.

¶ 3 In 2002 and 2007, the Nunnerys complained to Lamar that

Lamar had failed to maintain the bridges, that the bridges had

suffered damage and were deteriorating, and that Lamar was

responsible for addressing these issues.

¶ 4 In 2018, the Nunnerys sued Lamar and CDOT and asserted,

as relevant here, the following claims for relief:

• a mandamus claim under C.R.C.P. 106(a)(2) seeking an

order compelling the defendants to maintain the bridges,

as well as damages;

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• a claim under C.R.C.P. 57 seeking a declaration of the

Nunnerys’ rights and the defendants’ obligations to

maintain the bridges;

• a claim for “unlawful abandonment” of the bridges, as

well as damages, under section 43-2-303, C.R.S. 2021;

and

• an inverse condemnation claim on the theory that the

defendants’ alleged refusal to maintain the bridges

amounted to a taking of the Nunnerys’ property.

¶ 5 Lamar moved to dismiss the claims, arguing that the Colorado

Governmental Immunity Act (CGIA) barred them. CDOT joined the

motion. The trial court agreed with the motion in part, dismissing

the mandamus and declaratory judgment claims to the extent they

sought damages for past injuries. The court also dismissed the

abandonment claim as barred by the CGIA, noting that the

Nunnerys did not argue that the waiver of immunity described in

section 24-10-106(1)(d), C.R.S. 2021, applies. The court ruled,

however, that the CGIA did not bar the inverse condemnation claim.

Thus, following the court’s order on the motion to dismiss, what

remained were the mandamus claim seeking an order to compel,

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the declaratory relief claim seeking a declaration of rights and

responsibilities, and the inverse condemnation claim.

¶ 6 Later, Lamar moved for summary judgment on the remaining

claims, arguing in relevant part that the applicable two-year statute

of limitations barred them. See § 13-80-102(1)(h), C.R.S. 2021.

Specifically, Lamar argued that the Nunnerys knew of, or

reasonably should have known of, their claims as early as 2003,

and at the latest in 2007, based on letters sent from their attorneys

to Lamar alleging that Lamar had failed to maintain the bridges.

CDOT joined the motion.

¶ 7 In response, the Nunnerys argued that the defendants did not

sufficiently plead their statute of limitations defense because their

answers did not cite the correct statute. In the alternative, the

Nunnerys argued that the principles of estoppel or equitable tolling

should defeat the statute of limitations defense because CDOT

concealed the fact that it was involved in the installation of the

bridges. The Nunnerys did not otherwise dispute that their letters

from 2003 and 2007 showed that they were on notice that the

bridges needed repair and that Lamar was allegedly responsible for

maintaining them.

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¶ 8 The court granted summary judgment in favor of Lamar and

CDOT on the Nunnerys’ three remaining claims, reasoning that the

defendants’ answers “provided adequate notice that CDOT and

Lamar intended to assert a statute of limitations defense.” The

court also found the Nunnerys’ estoppel and tolling arguments

unpersuasive. On the merits, the court found that the Nunnerys

“do not contest Lamar’s allegation of fact that all of [the Nunnerys’

claims] accrued as early as 2003 and as of 2007 at the latest.”

Hence, the court dismissed the Nunnerys’ remaining claims

because they were barred by the statute of limitations.

¶ 9 The Nunnerys moved for reconsideration of the summary

judgment ruling as it pertained to their claims against CDOT.

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The

court denied the motion, declining to consider the new arguments

raised therein.

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In their reply in support of this motion, the Nunnerys said they

had “no objection to an order dismissing Lamar from this

proceeding.”

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II. Analysis

A. Dismissal Based on the CGIA

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¶ 10 Recall that the trial court dismissed on CGIA grounds the

Nunnerys’ mandamus and declaratory judgment claims to the

extent they sought damages for past injuries, as well as the claim

for unlawful abandonment of the bridges and resulting damages. In

their opening brief, the Nunnerys primarily contend that the court’s

conclusion “is directly contradicted by C.R.S. § 24-10-106(1)(d).”

And the Nunnerys quote that provision at length.

¶ 11 Under section 24-10-106(1)(d)(I), a public entity waives

sovereign immunity for tort or tort-like claims where the injuries

resulted from a dangerous condition of a public highway, road, or

street, if certain other conditions are met. According to the

Nunnerys, “[t]hat waiver must be construed broadly and covers the

claims at issue.”

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CDOT urges us to decline to review the Nunnerys’ CGIA

arguments because their notice of appeal did not mention the CGIA

order. As the Nunnerys point out, however, the issues identified in

a notice of appeal are merely advisory. See Giampapa v. Am. Fam.

Mut. Ins. Co., 919 P.2d 838, 840 (Colo. App. 1995).

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¶ 12 The Nunnerys did not, however, rely on section 24-10-

106(1)(d) in the trial court — a fact the court emphasized. Because

“[i]t is axiomatic that issues not raised in or decided by a lower

court will not be addressed for the first time on appeal,” we will not

further consider the Nunnerys’ reliance on section 24-10-106(1)(d)

in this appeal. Melat, Pressman & Higbie, L.L.P. v. Hannon L. Firm,

L.L.C., 2012 CO 61, ¶ 18 (“Our judicial system depends upon the

orderly presentation and preservation of issues.”).

¶ 13 In their opening brief, the Nunnerys also assert that the CGIA

does not apply to their unlawful abandonment and damages claim

at all because it is based on statute rather than in tort. But the

Nunnerys present this assertion in a conclusory fashion. They do

not develop it, respond substantively to the trial court’s detailed

analysis concluding that this claim is based in tort despite the

Nunnerys’ citation to statute, or cite any authority holding that the

CGIA cannot apply to claims based on statute. Understandably,

then, neither Lamar nor CDOT responds to such an argument in

their answer briefs.

¶ 14 Given these circumstances, the Nunnerys have not properly

presented this issue for our review. See, e.g., Woodbridge Condo.

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Ass’n v. Lo Viento Blanco, LLC, 2020 COA 34, ¶ 44 (declining to

address issue where the appellant did not provide “any coherent,

developed argument on the point”), aff’d, 2021 CO 56; Vallagio at

Inverness Residential Condo. Ass’n v. Metro. Homes, Inc., 2017 CO

69, ¶¶ 39-40 (declining to address conclusory assertions offered

without supporting argument or authority).

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¶ 15 Accordingly, we do not disturb the trial court’s CGIA rulings.

B. Summary Judgment Based on the Statute of Limitations

¶ 16 The trial court granted the defendants’ summary judgment

motion on statute of limitations grounds as to the Nunnerys’

mandamus claim seeking an order to compel, declaratory relief

claim seeking a declaration of rights and responsibilities, and

inverse condemnation claim.

¶ 17 The Nunnerys argue that the court erred by barring their

claims under section 13-80-102(1)(h) based on its finding that their

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The Nunnerys say a bit more about this issue in their reply brief,

but that comes too late. See Morin v. ISS Facility Servs., Inc., 2021

COA 55, ¶ 20 (“The reply brief argument against fees is not only too

late, it is also underdeveloped.”); In re Marriage of Dean, 2017 COA

51, ¶ 31(“We do not consider the arguments mother makes for the

first time in her reply brief or those that seek to expand upon the

contentions she raised in her opening brief.”).

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claims accrued no later than 2007. Specifically, they contend that

(1) their claims assert a “continuing tort” of “failure to maintain”

and, thus, are not time barred; (2) claims for prospective relief

should not be subject to a limitations period; and (3) their

abandonment and inverse condemnation claims “could not accrue

until the Nunnerys knew that the bridges were being abandoned,”

which did not occur until 2017. (As noted, however, the trial court

dismissed the abandonment claim on CGIA grounds, not due to the

statute of limitations.)

¶ 18 The Nunnerys did not present these arguments to the trial

court until their motion to reconsider the summary judgment ruling

(if at all). The court acted well within its discretion by declining to

consider these new arguments. See Hice v. Lott, 223 P.3d 139, 149

(Colo. App. 2009) (“[T]he trial court did not abuse its discretion in

declining to reconsider or reverse its summary judgment ruling

based on this new argument or theory.”); Ogunwo v. Am. Nat’l Ins.

Co., 936 P.2d 606, 611 (Colo. App. 1997) (same); see also Fox v.

Alfini, 2018 CO 94, ¶ 36 (recognizing that Colorado cases “have

consistently concluded that a district court generally does not

abuse its discretion by refusing to consider new arguments and

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evidence submitted in motions to reconsider”). So we will not

consider them on the merits either. See Ogunwo, 936 P.2d at 611.

III. Conclusion

¶ 19 The judgment is affirmed.

JUDGE HARRIS and JUDGE FREYRE concur.