HomeMy WebLinkAbout2018CV149 - SUTHERLAND V. CITY OF FORT COLLINS, STEVE MILLER & IRENE JOSEY - 048 - ORDER GRANTING DEFENDANTS' MOTION TO DISMISS AS TO DEFENDANTS CITY OF FORT COLLINS, STEVE MILLER AND IRENE JOSEY1
District Court, Larimer County, State of Colorado
201 LaPorte Avenue, Suite 100
Fort Collins, CO 80521-2761
(970) 494-3500
▲ COURT USE ONLY ▲
Plaintiff:
Eric Sutherland
v.
Defendants:
The City of Fort Collins, et al.
Case Number: 2018CV149
Courtroom: 5B
ORDER GRANTING DEFENDNTS’ MOTIONS TO DISMISS AS TO
DEFENDANTS CITY OF FORT COLLINS, STEVE MILLER AND IRENE JOSEY
The Court has reviewed the City of Fort Collins’s Motion to Dismiss, dated July
18, 2018 and Steve Miller and Irene Josey’s Motion to Dismiss, dated August 3, 2018.
Having reviewed the motions, responses, replies, exhibits, and applicable law, the
Court finds and orders as follows.
On April 26, 2018, Eric Sutherland filed a Complaint for Declaratory Judgment
and Equitable Relief. Plaintiff seeks a declaratory judgment from the Court finding that
any repayment of debt would be an unlawful violation of the Urban Renewal Authority
Act. C.R.S. § 13-25-101, et seq. Plaintiff asks the Court to enjoin the Larimer County
Assessor and the Larimer County Treasurer from “calculating or disbursing property
tax increment for the purposes of repaying any part” of the debt.
On July 11, 2018, this Court dismissed all of Plaintiffs claims against the Timnath
Development Authority and Compass Mortgage Corporation. The remaining
Defendants now seek to dismiss all of Plaintiffs’ claims brought against them.
Applicable Law
A motion to dismiss for failure to state a claim tests the sufficiency of a plaintiff’s
complaint and is looked on with disfavor. Allen v. Steele, 252 P.3d 476, 481 (Colo. 2011).
A complaint must contain sufficient factual allegations to raise a right to relief above the
DATE FILED: September 5, 2018
CASE NUMBER: 2018CV149
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level of speculation to the level of plausibility. Warne v. Hall, 373 P.3d 588, 595 ¶ 24
(Colo. 2016).
On a motion to dismiss, a court must accept as true all averments of material fact
in a complaint. Id. at 591 ¶ 9. However, legal conclusions and conclusory allegations
are not entitled to be assumed true. Id.; id. at 596 ¶ 27. A court must only consider the
complaint’s contents, but it may examine documents referred to in the complaint
without converting the motion into one for summary judgment. Yadon v. Lowry, 126
P.3d 332, 335–36 (Colo. App. 2005). Ultimately, a claim that is not plausible on its face
will be dismissed for failure to state a claim. Warne, 373 P.3d at 595.
A plaintiff has standing if he or she “(1) incurred an injury-in-fact (2) to a legally
protected interest, as contemplated by statutory or constitutional provisions.” Brotman
v. East Lake Creek Ranch, L.L.P., 31 P.3d 886, 890 (Colo. 2001). To determine standing, a
court considers “whether the plaintiff has asserted a legal basis upon which a claim for
relief may be predicated.” Olson v. City of Golden, 53 P.3d 747, 750 (Colo. App. 2002).
Olson held that, because the judicial branch of the government is precluded from
assuming the powers of another branch, courts could not overlook limitations on
standing to “redress otherwise nonjusticiable wrongs.” Id., citing Dodge v. Department of
Social Services, 600 P.2d 70, 73 (Colo. 1979). A plaintiff must demonstrate a legal interest
that entitles him or her to judicial redress. Id.
The Colorado Supreme court has held that there are three factors to consider in
making the determination of whether a plaintiff has demonstrated such a legal interest:
(1) whether the statute specifically creates such a right in the plaintiff; (2) whether there
is any indication of legislative intent to create or deny such a right; and (3) whether it is
consistent with the statutory scheme to imply such a right. Id., citing Cloverleaf Kennel
Club, Inc. v. Colorado Racing Commission, 620 P.2d 1051 (Colo. 1980).
Application of Law
A. Standing
The Olson Court found that the URA does not confer the right on taxpayers to
enforce its provisions. Olson, 53 P.3d at 752. Though Plaintiff contends that his action is
not intended to enforce the Urban Renewal Statutes, it is evident that the suit is, in fact,
a thinly veiled attack on Timnath Development Authority’s compliance with the URA
for which Plaintiff lacks standing to proceed.
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“…[I]f the General Assembly had intended that taxpayers have a right of
enforcement, it would have provided directions, such as staying the project during
litigation or requiring bonds to protect the taxpayers’ interest if the project continued
during litigation.” Olson, 53 P.3d at 752. Plaintiff asserts standing as a taxpayer, though
he clearly lacks standing and any right to enforce the URA.
B. Injury-in-Fact
“To satisfy the injury-in-fact prong of the Wimberly standing test (as set forth in
Brotman), the injury must be direct and palpable.” Olson, 53 P.3d at 750, citing Cloverleaf
Kennel Club, Inc. v. Colorado Racing Commission, 620 P.2d 1051 (Colo. 1980). As in Olson,
the injury complained of here is speculative at best. That case was brought by a
plaintiff who claimed that her status as a taxpayer granted her the authority to bring
suit to enforce the URA. The Court of Appeals found that the plaintiff had not
demonstrated a palpable injury-in-fact. Similarly, here, Plaintiff’s claimed injury
centers on his beliefs that (1) Poudre School District will raise taxes in the future due to
lost revenue and (2) Fort Collins will raise electric rates in the future due to lost
revenue. An injury that “cannot be determined until a remote time in the future is not
sufficiently direct and palpable to support a finding of injury-in-fact.” Id.
Plaintiff argues that he was required to file his suit now, even though his claimed
injuries are speculative and may not actually occur, because of the requirement of C.R.S.
§11-57-212. Plaintiff argues that, under the current state of the law, he is unable to bring
his claims now because his injury is too speculative, but if he waits until his injury has
occurred, he will be barred from bringing suit by C.R.S. § 11-57-212. Plaintiff argues
that this is an unconstitutional limit on his ability to protect his rights. To remedy this
alleged defect in the law, Plaintiff seeks a determination that C.R.S. § 11-57-212 allows a
Plaintiff to bring a claim even when the claimed injury is uncertain to occur. This Court
follows settled standing law requiring that an injury be direct and palpable to sustain a
claim.
Claims one, three, and twelve are dismissed because the Plaintiff: 1) does not
have standing; and, 2) has failed to allege injury-in-fact.
C. Sufficiency of Pleadings
Rule 8(a) of the Colorado Rules of Civil Procedure requires a “short and plain
statement of the claim showing that the pleader is entitled to relief.” The allegations
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contained in a complaint must be more than merely speculative and must provide
plausible grounds for relief. Warne v. Hall, 373 P.3d 588, 595 (Colo. 2016).
Plaintiff lists his claims in headings titled from “First Claim for Relief” through
“Nineteenth Claim for Relief.”1
Claims two; four through eleven; and thirteen through nineteen are: 1)
inapplicable to the Defendants; 2) are insufficiently pled; or 3) moot.
For example, the sixth claim states in full, “Timnath Farms Metropolitan districts
agreement.” The “claim” is not recognizable as a claim, does not set forth to whom it
applies and is not even a complete sentence.
The Court grants the motion to dismiss as to the city of Fort Collins, Irene Josey,
and Steve Miller on claims two; four through eleven; and thirteen through nineteen.
D. Statute of Limitations
It appears that some claims, if sufficiently pled and if the Plaintiff has standing,
would have been barred by the statute of limitations; however, due to the insufficiency
of the pleadings that determination is moot.
E. C.R.S. § 11-57-210
Finally, as far as claim twelve is a challenge to the order issuing the contested
bonds, C.R.S. §11-57-210 conclusively establishes the validity of the bonds and bars
Plaintiff’s twelfth claim from being brought.
Order
Defendants’ Motions to Dismiss are granted.
Dated: September 5, 2018. BY THE COURT:
__________________________
Gregory M. Lammons
District Court Judge
1 The Plaintiff does not clearly set forth which claims apply to which of the five Defendants that he has
sued.