Summary
remanding case to the trial court with instructions to conduct further proceedings pursuant to 12(b), including an evidentiary hearing if necessary, to determine the threshold issue of whether the plaintiff's claims are barred by sovereign immunity
Summary of this case from Medina v. StateOpinion
No. 91CA1654
Decided July 15, 1993. Rehearing Denied August 26, 1993. Certiorari Denied May 2, 1994.
Appeal from the District Court of the City and County of Denver Honorable Connie L. Peterson, Judge
Fogel, Keating Wagner, P.C., Steven R. Polidori, for Plaintiff-Appellant.
Gale A. Norton, Attorney General, Raymond T. Slaughter, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Thomas C. Sullivan, Assistant Attorney General, for Defendant-Appellee.
Upon petition for certiorari review of our opinion previously issued in this case, Reynolds v. State Board for Community Colleges Occupational Education, ___ P.2d ___ (Colo.App. No. 91CA1659, Dec. 17, 1992), the Colorado Supreme Court granted certiorari, vacated our judgment, and remanded the cause for our reconsideration in light of Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993).
On such reconsideration, we are satisfied that our reversal of the trial court's judgment dismissing plaintiff's complaint was correct and that the cause must be remanded for consideration and determination of the trial court's subject matter jurisdiction over the cause pursuant to C.R.C.P. 12(b)(1). See § 24-10-108, C.R.S. (1988 Repl. Vol. 10A); see also Trinity Broadcasting of Denver, Inc. v. City of Westminster, supra.
The judgment is reversed, and the cause is remanded with directions that the trial court conduct further proceedings, including an evidentiary hearing if necessary, and determine the threshold issue as to whether plaintiff's claim is barred by governmental immunity or whether it is within the statutory waiver of immunity provided by § 24-10-106(1)(c), C.R.S. (1988 Repl. Vol. 10A) as having been caused by machinery annexed as a fixture in a public building.
JUDGE JONES and JUDGE MARQUEZ concur.