Layton Construction Co., Inc., a Utah corporation, Plaintiff-Appellant,
Shaw Contract Flooring Services, Inc., d/b/a Spectra Contract Flooring, a Georgia corporation, Defendant-Appellee.
and County of Denver District Court No. 14CV34053 Honorable
Morris B. Hoffman, Judge.
Holt Group LLC, L. Tyrone Holt, Kevin P. Walsh, Kevin D.
Poyner, Denver, Colorado, for Plaintiff-Appellant
& Evans, LLC, Darin J. Lang, Brian Molzahn, Elizabeth K.
Olson, Denver, Colorado, for Defendant-Appellee
1 Plaintiff, Layton Construction Co., Inc. (Layton), appeals
the district court's summary judgment for defendant, Shaw
Contract Flooring Services, Inc. (Shaw), based on the
doctrine of claim preclusion. Because we conclude that all of
Layton's contentions challenging the district court's
application of that doctrine are without merit, we affirm.
2 Layton was the general contractor responsible for
construction of a hotel in Vail, Colorado. It hired Shaw, and
many other subcontractors, to perform work on the project.
3 In June 2009, the property owner (referred to by the
parties as BCRE) terminated its contract with Layton and, not
too long thereafter, gave Layton notice of numerous
construction defects in the project, a few of which related
to Shaw's work. Layton sued BCRE alleging that BCRE had
failed to pay for work, seeking over $27 million in damages.
After BCRE asserted counterclaims against Layton for
defective workmanship (seeking more than $25 million in
damages), Layton added claims against various subcontractors,
4 Pursuant to an indemnification clause in the subcontract,
Layton's sixth claim for relief sought indemnification
from Shaw for "all damages and costs" arising from
any liability it might have to BCRE. In response to Shaw's
interrogatory (Interrogatory 8) asking Layton to
"identify all material facts upon which [Layton] based
[the indemnification] claim, " Layton stated, under
oath, that those facts included "Shaw's failure to
provide a defense or pay Layton's costs to defend against
[BCRE's] claims that relate to or arise out of Shaw's
allegedly deficient or defective work." In responding to
another interrogatory (Interrogatory 4) asking Layton to
describe every breach of the indemnification clause, Layton
specifically noted "Shaw's failure to provide a
defense or pay Layton's costs." Layton's
response to Interrogatory 8 expressly incorporated its
response to Interrogatory 4.
5 Layton also asserted a claim for contribution against Shaw
(the seventh claim for relief), alleging that if Layton was
found to be liable to BCRE for "the tortuous [sic] acts
of" Shaw, Shaw should be required to contribute payment
for such liability. At Layton's request, the district
court dismissed that claim without prejudice in March 2011.
6 Later, after BCRE specifically identified Shaw's
allegedly defective work (totaling about $9, 000 in value),
Layton moved to voluntarily dismiss its indemnification claim
against Shaw "with prejudice." Layton's motion
said that the dismissal would include "those claims that
have been or could have been asserted in this
lawsuit." (Emphasis added.) The motion purported not to
seek dismissal of "any new or future claims, "
which it defined as those "that may arise or be asserted
in the future in any other lawsuits or circumstances, which
may be subject to the indemnification provision." The
proposed order Layton submitted with its motion repeated
these parameters and said that each party would bear its own
attorney fees and costs. The district court did not sign
Layton's proposed order, but instead entered a written
order on June 6, 2011, saying only, as now relevant, that
Layton's claims were dismissed with prejudice.
7 The case between Layton and BCRE (in which several
subcontractors remained parties) continued. In July 2014,
following a bench trial, the court awarded Layton just over
$5 million on its claims against BCRE, which was far less
than Layton had sought. The court also ruled that Layton was
not liable to BCRE for defective work because BCRE had
materially breached the contract by failing to give Layton
contractually required notices of defective work and an
opportunity to correct the work. With respect to the
subcontractors remaining in the case, the court found that
they were liable to Layton under the indemnification
provisions in their subcontracts (which were identical to the
provision in Shaw's subcontract) for the expenses
(including attorney fees and costs) that Layton had incurred
in defending against BCRE's claims, to the extent those
expenses were attributable to work performed by each
8 Shortly thereafter, Layton filed this case against Shaw and
several other subcontractors. It asserted claims against Shaw
for contractual and common law indemnity and declaratory
judgment seeking an award of "attorney fees, costs and
expenses" it had incurred in defending against
BCRE's claims in the prior case. Layton asserted that it
could seek indemnification from Shaw pursuant to a provision
in the Construction Defect Action Reform Act (CDARA), section
13-80-104, C.R.S. 2016, which allows claims for
indemnification against subcontractors to be filed within
ninety days of a final judgment against a contractor. §
13-80-104(1)(b)(II), (1)(c) (indemnification claim
"[s]hall be brought within ninety days after [settlement
of or final judgment against the contractor in]" the
construction defect claim).
9 Shaw moved for summary judgment. It argued that
Layton's indemnification claims are barred by the
doctrine of claim preclusion because the court in the prior
case had dismissed those claims with prejudice. The district
court agreed, rejecting Layton's contrary arguments in a
thorough written order.
Standard of Review
10 Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of
law." C.R.C.P. 56(c). We review de novo an order
granting summary judgment based on claim preclusion.
Loveland Essential Grp., LLC v. Grommon Farms, Inc.,
2012 COA 22, ¶ 13.
11 To the extent Layton's contentions require us to
construe CDARA, that presents a question of law that we also
review de novo. Sperry v. Field, 205 P.3d 365, 367
(Colo. 2009). In interpreting a statute we strive to discern
and give effect to the General Assembly's intent.
Hassler v. Account Brokers of Larimer Cty., Inc.,
2012 CO 24, ¶ 15. To do this, we look first to the
statutory language itself; we give the words and phrases used
therein their plain and ordinary meanings, and we read the
language in the dual contexts of the entire statute and the
comprehensive statutory scheme. Id.; Jefferson
Cty. Bd. of Equalization v. Gerganoff, 241 P.3d 932, 935
(Colo. 2010); BP Am. Prod. Co. v. Patterson, 185
P.3d 811, 813 (Colo. 2008). After doing this, if we conclude
that the statutory language is unambiguous we apply it as
written and we do not resort to other rules of statutory
construction. Reno v. Marks, 2015 CO 33, ¶ 20;
Klinger v. Adams Cty. Sch. Dist. No. 50, 130 P.3d
1027, 1031 (Colo. 2006).
General Law of Claim Preclusion
12 "Claim preclusion works to preclude the relitigation
of matters that have already been decided as well as matters
that could have been raised in a prior proceeding but were
not." Argus Real Estate, Inc. v. E-470 Pub. Highway
Auth., 109 P.3d 604, 608 (Colo. 2005); accord Lobato
v. Taylor, 70 P.3d 1152, 1165 (Colo. 2003). It serves
two primary purposes: protecting litigants from the burden of
relitigating issues against the same party (or its privy) and
promoting judicial economy by preventing needless litigation.
Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326
(1979); Lobato, 70 P.3d at 1165-55.
13 "For a claim in a second judicial proceeding to be
precluded by a previous judgment, there must exist: (1)
finality of the first judgment, (2) identity of subject
matter, (3) identity of claims for relief, and (4) identity
or privity between parties to the actions." Argus