In re Goodman v. Heritage Builders
390 P.3d 398
Colo.
2017
Check Treatment

In rе Richard GOODMAN, Plaintiff, v. HERITAGE BUILDERS, INC., and Ivan Rascon d/b/a American Landscape Company, Defendants, and Heritage Builders, Inc., Cross-Claim Plaintiff, v. Ivan Rascon d/b/a American Landscape Company, Cross-Claim Defendant, and Heritage Builders, Inc., Third-Party Plaintiff, v. Bluegreen, Inc.; Columbine Landscapе Service Company, Inc.; CTL Thompson, Inc.; Loris and Associates, Inc.; S.D. Construction of Aspen, LLC and/or Scott Davis d/b/a SD Construction; Scott A. Lindenau, Architect, P.C. d/b/a Studio B Architects; Summit Roofing, Inc.; TJ Concrete Construction, Inc.; and Welch Excavating, Inc., Third-Party Defendants.

Supreme Court Case No. 16SA193

Supreme Court of Colorado.

February 27, 2017

Rehearing Denied March 20, 2017

2017 CO 13

of an alcohol-related driving offense is guilty of a misdemeanor. (Emphasis added.)

¶18 As these statutory elements make clear, DUR (the purported lesser included offense) contains as an element “driving a motor vehicle or off-highway vehicle.” In contrast, aggravated DARP (the purported greater offense) contains as an element “operating a motor vehicle.”

¶19 The traffic code defines “motor vehicle,” in pertinent part, as “any self-propelled vehicle that is designed primarily for travel on the public highways.” § 42-1-102(58), C.R.S. (2016) (emphasis added). The traffic code defines “off-highway vehicle” by incorporating the definition contained in section 33-14.5-101(3), C.R.S. (2016). See § 42-1-102(63). That section defines “off-highway vehicle,” in pertinent part, as “any self-propelled vehicle which is designed to travel on wheels or tracks in contact with thе ground, which is designed primarily for use off of the public highways.” § 33-14.5-101(3) (emphasis added).

¶20 Accordingly, the offense of DUR contains more elements than the offense of aggravated DARP (i.e., “motor vehicle or off-highway vehicle,” as opposed to just “motor vehicle“). As a result, by definition, DUR is not a subset of aggravated DARP. See subset, Webster‘s Third New International Dictionary (2002) (defining “subset” as “a set . . . that is itself an element of a larger set“).

¶21 We thus conclude that DUR is not a lesser included offense of aggravated DARP. As a result, Zubiate‘s convictions for both offenses did not violate double jeopardy principles, and mergеr of those convictions was not required.

III. Conclusion

¶22 For these reasons, we affirm the division‘s judgment in Zubiate.

JUSTICE COATS concurs in the judgment, and JUSTICE EID and JUSTICE BOATRIGHT join in the concurrence in the judgment.

JUSTICE COATS, concurring in the judgment.

¶23 For the reasons I have given in my separate opinion in , I do not agree with the majority‘s articulation of the test for determining whether one offense is a lesser included offense of another. Because I would nevеrtheless also find that DUR is not a lesser included offense of DARP according to what I consider to be the correct standard, I concur in the judgment.

I am authorized to state that JUSTICE EID and JUSTICE BOATRIGHT join in this concurrence in the judgment.

Attorneys for Defendant/Cross-Claim Plaintiff/Third-Party ‍‌‌​​​‌​‌‌​​​​‌​‌​‌‌​‌‌‌​​​​‌​​​‌​​‌‌‌​​‌‌​‌‌‌‌‌​‍Plaintiff Heritage Builders, Inc.: Jaudon & Avery LLP, David H. Yun, Jared R. Ellis, Denver, Colorado, Nathan, Bremer, Dumm & Myers, P.C., Justin M. Curry, Denver, Colorado, Higgins, Hopkins, McLain & Roswell, LLC, Sheri H. Roswell, Bret Cogdill, Jean Meyer, Denver, Colorado

Attorneys for Third-Party Defendant Scott A. Lindenau Architect P.C. d/b/a Studio B Architects: Hall & Evans, L.L.C., Benton J. Barton, Elizabeth K. Olson, Denver, Colorado

Attorneys for Third-Party Defendant Bluegreen, Inc.: The Hustead Law Firm, Patrick Q. Hustead, Ryan A. Williams, Denver, Colorado

No appearance by or on behalf of Ivan Rascon, d/b/a American Landscape Company; TJ Concrete Construction, Inc.; Columbine Landscape Service Company, Inc.; CTL Thompson Inc.; Loris and Associates, Inc.; S.D. Construction of Aspen, LLC and/or Scott Davis d/b/a SD Construction; Summit Roofing, Inc.; Welch Excavating, Inc.; Scott Davis.

CHIEF JUSTICE RICE delivered the Opinion of the Court.

¶1 In this original proceeding, we consider whether the statute of repose in section 13-80-104(1)(a), C.R.S. (2016), bars a general contractor‘s third-party claims brought in response to a homeowner‘s claim for construction defects discovered in the fifth or sixth year following substantial completion of an improvement to real property. We hold that such claims are timely, irrespective оf both the two-year statute of limitations in section 13-80-102, C.R.S. (2016), and the six-year statute of repose in section 13-80-104(1)(a), so long as they are brought at any time before the ninety-day timeframe outlined in section 13-80-104(1)(b)(II).1

I. Facts and Procedural History

¶2 This case concerns the design and construction of a single-family residence in Pitkin County, Colorado. Heritage Builders, Inc. (“Heritage“) was retained as the general contractor by the original owners of the property, Karen and Courtney Lord. Pitkin County issued a certificate of occupancy for the home in September 2006. In November 2011, Richard Goodman purchased the property frоm the Lords. Then, sometime between March and June 2012, Goodman discovered the alleged construction defects in the home. Goodman gave Heritage informal notice of his construction defect claims in July 2013. Three months later, on October 8, 2013, Goodman sent a formal notice of claim letter to Heritage pursuant to Colorado‘s Construction Defect Action Reform Act, sections 13-20-801 to -808, C.R.S. (2016). After receiving Goodman‘s letter, as relevant here, Heritage then sent a notice of claim letter to subcontractors Studio B Architеcts (“Studio B“) and Bluegreen, Inc. (“Bluegreen“) alleging design deficiencies at the residence. Then, on December 20, 2013, Goodman filed the lawsuit that is the subject of this dispute, asserting negligence against Heritage and some of its subcontractors for defects arising out of the оriginal construction. In response, Heritage asserted cross-claims and filed a third-party complaint against numerous subcontractors, including Studio B and Bluegreen.

¶3 Studio B filed a motion for summary judgment on March 10, 2016, which Bluegreen later joined. In the motion, Studio B argued that Heritage‘s claims against them were barred by the six-year statute of repose contained in section 13-80-104(1)(a).2 On May 20, 2016, the trial court issued an order entering summary judgment in favor of Studio B and Bluegreen. In doing so, the trial court reasoned that Heritage‘s claims against Studio B and Bluegreen arоse at the earliest when Heritage received informal notice of the ‍‌‌​​​‌​‌‌​​​​‌​‌​‌‌​‌‌‌​​​​‌​​​‌​​‌‌‌​​‌‌​‌‌‌‌‌​‍alleged defects in July 2013. Because this date was more than six years after the substantial completion of the home, the court concluded the statute of repose barred Heritаge‘s claims against Studio B and Bluegreen. The trial court further concluded that section 13-80-104(2), an exception which effectively extends the statute of repose by one to two years when a cause of action arises during the fifth or sixth year after the complеtion of a home, did not apply. Heritage then petitioned this court for a rule to show cause as to why the trial court‘s order granting summary judgment should not be vacated. We issued an Order and Rule to Show Cause, staying the underlying proceedings.

II. Original Jurisdiction

¶4 “Original relief pursuant to C.A.R. 21 is an extraordinary remedy that is limited both in purpose and availability.” . That said, we “generally elect to hear C.A.R. 21 cases that raise issues of first impression and that are of significant public importance.” . This case satisfies both criteria. We have never considered the impact of the six-year statute of repose in section 13-80-104(1)(a) on the timeliness of third-party claims in construction defect cases. Furthermore, this case presents an important question, as its resolution will have a significant impact on construction defect litigation throughout the state.

III. Standard of Review

¶5 “Statutory interpretation involves only questions of law,” which this court reviews de novo. .

IV. Analysis

¶6 This case requires us to clarify the parameters for timeliness of third-party claims in construction defect cases. Specifically, we must determine whether the statute of repose in section 13-80-104(1)(a) may bar third-party claims even if those claims were brought within the timeframe outlined in section 13-80-104(1)(b)(II). We hold that it cannot because the language of section 13-80-104(1)(b)(II) clearly indicates that third-party claims are timely irrespective of both the statute of limitations in section 13-80-102 and the statute of repose in section 13-80-104(1)(a) so long as the claims are brоught during the litigation or within ninety days following the date of judgment or settlement.

¶7 In interpreting statutes, a court‘s objective is to effectuate the General Assembly‘s intent. . To determine legislative intent, courts first look to the statutory language itself and give the words and phrases their ordinary and commonly accepted meaning. . Where the language is clear, it is not necessary to ‍‌‌​​​‌​‌‌​​​​‌​‌​‌‌​‌‌‌​​​​‌​​​‌​​‌‌‌​​‌‌​‌‌‌‌‌​‍resort to other tools of statutory construction. Instead, courts must enforce the clear statutory language as written. . Courts “should not presume that the legislature used language idly and with no intent that meaning should be given to its language.” (internal quotation marks omitted). Courts should also “reject interpretations that render words or phrases superfluous.” .

¶8 Generally, construction defect actions are subject to a two-year statute of limitations, § 13-80-102, and a six-year statute of repose, § 13-80-104(1)(a). Specifically, section 13-80-104(1)(a) establishes the six-year statute of repose and provides:

Notwithstanding any statutory provision to the contrary, all actions against any architect, contractor, builder or builder vendor, engineer, or inspector performing or furnishing the design, planning, supervision, inspection, construction, or observation of construсtion of any improvement to real property shall be brought within the time provided in section 13-80-102 after the claim for relief arises, and not thereafter, but in no case shall such an action be brought more than six years after the substantial completion of the improvement to the real property, except as provided in subsection (2) of this section.

¶9 Separately, section 13-80-104(1)(b)(II) governs construction defect claims against other parties who “may be liable to the claimant for all or part of the claimant‘s liability to a third person[.]” Specifically, that subparagraph provides:

Notwithstanding the provisions of paragraph (a) of this subsection (1), all claims, . . . by a claimant against a person who is or may be liable to the claimant for all or part of the claimant‘s liability to a third person:

(A) Arise at the timе the third person‘s claim against the claimant is settled or at the time final judgment is entered on the third person‘s claim against the claimant, whichever comes first; and

(B) Shall be brought within ninety days after the claims arise, and not thereafter.

§ 13-80-104(1)(b)(II). Although third-party claims under section 13-80-104(1)(b)(II)(A) do not arise until settlement or entry of judgmеnt, this court has held that such claims may be brought in either (1) the construction defect litigation before a settlement or entry of judgment or (2) a separate lawsuit after a settlement or entry of judgment. .

¶10 In a series of cases, the court ‍‌‌​​​‌​‌‌​​​​‌​‌​‌‌​‌‌‌​​​​‌​​​‌​​‌‌‌​​‌‌​‌‌‌‌‌​‍of appeals has held that sеction 13-80-104(1)(b)(II) has no effect on the six-year statute of repose. See ; ; . In these cases, the court found that section 13-80-104(1)(b)(II) tolls the two-year statute of limitations, but does not toll the six-year statute of repose as to claims brought by general contractors against subcontractors. See ; ; . In other words, these cases held that third-party claims brought after the six-year statute of repose had run were barred—even if they were brought before the ninety-day period set forth in section 13-80-104(1)(b)(II) had expired.

¶11 We disagree with these holdings because they render the controlling language of section 13-80-104(1)(b)(II) superfluous. Section 13-80-104(1)(b)(II) begins by stating that it applies “[n]otwithstanding the provisions of paragraph (a) of this subsection (1)” (emphasis added). In turn, paragraph (a) of subsection (1) both incorporates the two-year statute of limitations and contains the six-year statute of repose for construction defect claims. When used in a statute, “notwithstanding” is intended “to exсlude—not include—the operation of other statutes.” (emphasis omitted). This is because “[t]he word ‘Notwithstanding’ is one in opposition to, and not one of compatibility with, another stаtute.” Indeed, “the word ‘Notwithstanding’ actually means ‘in spite of . . . .‘” (citing Webster‘s New International Dictionary (1958)); see also (“[T]he term ‘notwithstanding’ means excluding, in opposition to, or in spite of other statutes.“). Consequently, the phrase “[n]otwithstanding the provisions of paragraph (a) of this subsection (1),” plainly and unambiguously precludes the application of both the statute of limitations in section 13-80-102 and statute of repose in section 13-80-104(1)(a) to third-party claims made pursuant to section 13-80-104(1)(b)(II). Therefore, to the extent that Thermo, Shaw, and Sierra held that claims brought outside of the statute of repose timeframe, but brought within the timeframe outlined in section 13-80-104(1)(b)(II) are barred, they are overruled.

¶12 Instead, we hold that under section 13-80-104(1)(b)(II), third-party claims are timely irrespective of both the two-year statute of limitations and the six-yeаr statute of repose so long as the claims are brought during the construction defect litigation or within ninety days following the date of judgment or settlement. Therefore, in this case, because Heritage brought its third-party claims against Studio B and Bluegreen prior to any judgment оr settlement, the trial court should not have granted summary judgment in favor of Studio B and Bluegreen based on the statute of repose.3 Because we hold that the statute

of repose is irrelevant for the purposes of third-party claims brought under section 13-80-104(1)(b)(II), we need not address whether the exceptiоn to the statute of repose in section 13-80-104(2) allowed Goodman‘s claims against Heritage to extend beyond the six-year statute of ‍‌‌​​​‌​‌‌​​​​‌​‌​‌‌​‌‌‌​​​​‌​​​‌​​‌‌‌​​‌‌​‌‌‌‌‌​‍repose, but did not allow Heritage‘s third-party claims against subcontractors.

V. Conclusion

¶13 For the foregoing reasons, we make our rule to shоw cause absolute and instruct the trial court to vacate the order granting summary judgment in favor of Studio B and Bluegreen.

NANCY E. RICE

CHIEF JUSTICE

Notes

1
For clarity, “a statute of limitation merely limits the time in which a plaintiff may bring suit after a cause of action accrues,” whereas “a statute of reрose extinguishes a cause of action after a fixed period of time . . . regardless of when the cause of action accrued.” 2A Am. Jur. Pl. & Pr. Forms Architects § 62.
2
For the purposes of the summary judgment motion, the parties did not dispute that Goodman‘s claim “arose in the fifth or the sixth year” following the home‘s completion.
3
This court requested supplemental briefings from the parties. Heritage filed a motion to strike portions of Studio B‘s and Bluegreen‘s supplemental briefings. Because the disputed portions of Studio B‘s and Bluegreen‘s supplemental briefings do not inform our holding today, which is limited to the timeliness of the third-party claims, we need not consider the motion to strike.
Read the detailed case summary