Opinion
No. 78-587
Decided November 2, 1978. Rehearing denied November 24, 1978. Certiorari granted January 29, 1979.
Asserting that the total sum required to satisfy judgment in favor of plaintiffs would exceed the $100,000 maximum recoverable against a municipal corporation under the limitation on judgments provision of the Colorado Governmental Immunities Act, city moved for an order limiting the amount of its liability to $100,000. Trial court denied the motion on the ground, among others, that the city had failed to raise this issue in its motion for new trial or on prior appeal of that judgment and thus was barred from doing so. City appealed.
Affirmed
1. PRACTICE AND PROCEDURE — Limitation on Liability — Governmental Immunities Act — Defense — Not Presented — Under Procedural Rules — Waived. The limitation on liability specified in the Colorado Governmental Immunities Act is a defense, and thus, such defense not having been presented as required by C.R.C.P. 8 and 12, it was waived.
2. Limitation on Liability — Governmental Immunities Act — Affirmative Defense — Cannot Be Raised — After Judgment — Not in New Trial Motion — Not Considered. Like other affirmative defenses, if not pleaded or raised during trial, the limitation on liability specified in the Colorado Governmental Immunities Act cannot be raised for the first time after final judgment, and similarly, if that limitation issue is not raised in a new trial motion, it will not be considered thereafter.
Appeal from the District Court of the County of El Paso, Honorable John F. Gallagher, Judge.
Cleveland Wengler, Edward D. Cleveland, for plaintiffs-appellees.
Gordon D. Hinds, City Attorney, Horn, Anderson Johnson, Louis Johnson, for defendant-appellant.
In this action for damages and for an injunction arising out of the subsidence of real property belonging to the plaintiffs, the Gladins, a judgment against the defendants, jointly and severally, for $70,000 plus interest and costs was entered on a jury verdict. The court also issued a mandatory injunction requiring the defendants to restore lateral support to the plaintiffs' land. The verdict against the City of Colorado Springs was based on a finding of negligence. On appeal this court reversed, Gladin v. Von Engeln, 37 Colo. App. 447, 550 P.2d 352 (1976), but the Supreme Court reinstated the judgment as to damages and upheld the trial court's issuance of the injunction. Gladin v. Von Engeln, 195 Colo. 88, 575 P.2d 418 (1978).
On remand, the City alleged that the judgment, together with interest and costs, totaled approximately $88,000 and that the cost of complying with the mandatory injunction would be over $40,000. Thus, the City asserted, the total sum required would exceed the $100,000 maximum recoverable against a municipal corporation under the limitation on judgments provision of the Colorado Governmental Immunities Act, § 24-10-114, C.R.S. 1973. Accordingly, it moved for an order limiting the amount of its liability to $100,000. The trial court denied the motion on the ground, among others, that the City failed to raise this issue in its motion for new trial or on appeal, and was now barred from doing so. The City petitioned the Supreme Court for a writ of prohibition, but the petition was denied. This appeal was then instituted. We affirm the trial court.
[1] Contrary to the City's contention that § 24-10-114 creates a jurisdictional limitation, § 24-10-108, C.R.S. 1973, in the same Governmental Immunities Act provides that "sovereign immunity shall be available to a public entity as a defense to an action for injury." (emphasis added) Being a defense, and not having been presented as required by C.R.C.P. 8 and 12, it was waived. Maxey v. Jefferson County School District No. R-1, 158 Colo. 583, 408 P.2d 970 (1965). Like other affirmative defenses, if not pleaded or raised during trial, it cannot be raised for the first time after final judgment. See Buena Vista Bank Trust Co. v. Lee, 191 Colo. 551, 554 P.2d 1109 (1976); Knighton v. Howse, 167 Colo. 530, 448 P.2d 641 (1968). Also, the issue not having been raised in the new trial motion, it will not be considered thereafter. Martin v. Opdyke Agency, Inc., 156 Colo. 316, 398 P.2d 971 (1965); C.R.C.P. 59(f).
Judgment affirmed.
JUDGE PIERCE and JUDGE RULAND concur.