Guadalupe P. Martinez, Plaintiff-Appellant,
CSG Redevelopment Partners LLLP, a Colorado limited liability limited partnership, Defendant-Appellee.
and County of Denver District Court No. 16CV31344 Honorable
Jay S. Grant, Judge
Announced June 20, 2019 DiGiacomo, Jaggers & Perko, LLP,
Douglas J. Perko, Arvada, Colorado, for Plaintiff-Appellant
Harris, Karstaedt, Jamison & Powers, P.C., Susan M.
Stamm, Englewood, Colorado, for Defendant-Appellee
1 Guadalupe P. Martinez, a resident of the low-income housing
facility Casa Loma Apartments, slipped and fell on a walkway
leading to the apartment building. Seeking to recover for his
injuries, Mr. Martinez sued CSG Redevelopment Partners, LLLP
(CSGR), Casa Loma's management company and the
building's owner, under the Premises Liability Act,
§ 13-21-115, C.R.S. 2018, and (alternatively) for
negligence, alleging that CSGR had allowed snow and ice to
accumulate on the walkway.
2 CSGR moved to dismiss the complaint, arguing that, as an
"instrumentality" of a public entity - the Denver
Housing Authority (DHA) - it is immune from tort liability
under the Colorado Governmental Immunity Act (CGIA), §
24-10-106, C.R.S. 2018. It also argued that the exception to
governmental immunity in section 24-10-106(1)(d)(III) for a
dangerous condition on a walkway "leading to a public
building open for public business" doesn't apply
because Casa Loma isn't such a building. Mr. Martinez
opposed the motion. After a Trinity Broadcasting of
Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.
1993), hearing, the district court granted CSGR's motion,
ruling that CSGR is an instrumentality of the DHA and that
the public building exception doesn't apply.
3 We conclude that, because of both DHA's extensive
control over CSGR and CSGR's public purpose, CSGR is an
instrumentality of a public entity within the meaning of the
CGIA, and therefore a public entity itself entitled to
governmental immunity. We also conclude that the record
supports the district court's finding that Casa Loma
isn't a public building open for public business, and
that Mr. Martinez's alternative contention that immunity
doesn't apply because the walkway is part of a
"public facility located in [a] recreation area
maintained by a public entity," see §
24-10-106(1)(e), is, on this record, unavailing. The upshot
is we affirm the district court's judgment.
4 The following facts were found by the district court with
record support or are otherwise undisputed.
5 In 1987, DHA created the Denver Housing Corporation (DHC),
a nonprofit entity that DHA completely owns and controls. For
nearly thirty years, DHC (and, by extension, DHA), has owned
and operated the Casa Loma Apartments. In 2013, to finance
the renovation of Casa Loma and two other low-income housing
properties, DHA created CSGR and CSG Housing, Inc. CSG
Housing served as CSGR's general partner, and another of
DHA's instrumentalities, DHA Limited Partner, served as
CSGR's limited partner. At that point, CSGR was made up
of, and controlled entirely by, DHA
6 But in 2014, as part of CSGR's effort to secure more
funding for the renovations, Wincopin Circle LLLP joined CSGR
as a limited partner. It functions mainly as an investor, having
contributed approximately $12.5 million in equity financing.
CSG Housing and DHA Limited Partner each contributed $90 and
$10, respectively. As a result, CSG Housing, as the general
partner, retained a 0.01% ownership interest in CSGR; DHA
Limited Partner, a special limited partner, retained a 0.001%
ownership interest in CSGR; and the investor, the limited
partner, received a 99.989% ownership interest in CSGR and
qualified for tax credits through the Low-Income Housing Tax
Credit (LIHTC) program - a federal program that offers
federal tax credits to private investors as an incentive to
invest in low-income housing projects. See 26 U.S.C.
§ 42 (2018). The partnership is governed by a restated
partnership agreement (more about which we'll discuss
7 Around the same time the investor joined CSGR, DHC leased
the land under Casa Loma to CSGR for sixty-five years; DHC
transferred its ownership of the structural improvements on
the property to CSGR (this was also so the investor could
qualify for LIHTC); and DHA lent CSGR approximately $45.3
million, $21 million of which was a construction loan that
DHA funded by issuing private activity bonds (about $15
million was cash directly from DHA). CSG Housing, acting in
its capacity as the general partner, hired DHA as the manager
of the property under a written management agreement (another
agreement about which we'll talk more below).
8 Several years later, Mr. Martinez slipped and fell on an
allegedly icy walkway leading to the building. He sued CSGR,
claiming over $400, 000 in medical expenses. As noted, the
district court dismissed his complaint based on governmental
9 Mr. Martinez contends that the district court erred by (1)
concluding that CSGR is an instrumentality of DHA; (2) ruling
that the "public building" exception doesn't
apply; and (3) failing to address his argument that the
"recreation area" waiver in section 24-10-106(1)(e)
Standard of Review
10 To the extent historical facts relevant to the issues Mr.
Martinez raises on appeal were disputed, we review the
district court's findings of fact for clear error,
Medina v. State, 35 P.3d 443, 452 (Colo. 2001); such
a finding is clearly erroneous only if there's no support
for it in the record, M.D.C./Wood, Inc. v. Mortimer,
866 P.2d 1380, 1384 (Colo. 1994). But to the extent all such
facts relevant to a particular issue weren't disputed, we
review the issue de novo. Young v. Brighton Sch. Dist.
27J, 2014 CO 32, ¶ 10. And to the extent that
CSGR's claim to immunity implicates questions of law,
including statutory interpretation or application of a proper
legal standard, we review the district court's
conclusions de novo. See Corsentino v. Cordova, 4
P.3d 1082, 1087 (Colo. 2000).
is an Instrumentality of a Public Entity
11 First, Mr. Martinez contends that his claim isn't
barred by the CGIA because CSGR's status as a private
partnership precludes its treatment as a "public
entity." He points to the investor's significant
capital contributions, the investor's approval power over
some of CSGR's operations, and that much of DHA's
investment came from the sale of private activity ...