Sopris Lodging, LLC, a Colorado limited liability company, assignee of the claims of TDC/BEI Joint Venture, LLC, a Colorado limited liability company; Charles R. Lakin, an individual; and Tyler Casebier, an individual, Third-Party Plaintiffs-Appellants,
Schofield Excavation, Inc., a Colorado corporation; and Colorado Engineering Contractors, Inc., a Colorado corporation, Third-Party Defendants-Appellees.
County District Court No. 13CV30033 Honorable Gail H.
Slatkin & Madison, P.C., Albert B. Wolf, Jonathan L.
Madison, Denver, Colorado, for Third-Party
Markusson, Green & Jarvis, H. Keith Jarvis, Daniel R.
Coombe, Anne K. McMichael, Denver, Colorado, for Third-Party
Defendant-Appellee Schofield Excavation, Inc.
D. Morse & Associates, LLC, Stuart D. Morse, Matthew J.
Bayma, Greenwood Village, Colorado, for Third-Party
Defendant-Appellee Colorado Engineering Contractors, Inc.
RICHMAN, Bernard and Fox, JJ., concur
1 In this construction defect case, Sopris Lodging, LLC,
assignee of the claims of third-party plaintiffs TDC/BEI
Joint Venture, LLC (TDC), Charles R. Lakin, and Tyler
Casebier, appeals the district court's entry of summary
judgment in favor of third-party defendants, Schofield
Excavation, Inc. (Schofield), and Colorado Engineering
Contractors, Inc. (CEC). Because we conclude that the
third-party claims at issue are time barred, we affirm.
2 TDC was the general contractor for the construction of a
hotel owned by Sopris Lodging. On March 11, 2011, Sopris
Lodging sent TDC a notice of claim regarding alleged
construction defects at the hotel. On May 24, 2013, Sopris
Lodging filed a complaint in district court asserting
construction defect claims against one of the subcontractors
of the hotel, and against the TDC's individual
principals, Lakin and Casebier, who had guaranteed TDC's
performance. On the same date, however, Sopris Lodging and
TDC entered into an agreement to toll the statute of
limitations for Sopris Lodging's claims against TDC.
Sopris Lodging later amended its complaint in August of 2013
to add claims against TDC.
3 In 2014, while those claims were pending, TDC filed
third-party claims against several subcontractors, including
Schofield and CEC, for breach of contract, negligence,
contribution, and indemnification. CEC and Schofield moved
for summary judgment, asserting that TDC's third-party
claims were barred by the two-year statute of limitations set
forth in section 13-80-102, C.R.S. 2016, and made applicable
to TDC's claims through section 13-80-104(1)(a), C.R.S.
2016. CEC and Schofield argued that those claims accrued on
or before March 11, 2011, when Sopris Lodging sent the notice
of claim to TDC. Because TDC did not file its third-party
claims until 2014, CEC and Schofield asserted that the claims
were time barred.
4 In its response, TDC did not dispute the date of accrual.
However, it asserted that section 13-80-104(1)(b)(II) tolled
the statute of limitations for a defendant's third-party
claims until ninety days after a settlement or final judgment
on the plaintiffs' claims against the defendant.
5 After briefing, the district court entered a detailed
written order ruling that the third-party claims were time
barred. Relying on CLPF-Parkridge One, L.P. v. Harwell
Investments, Inc., 105 P.3d 658 (Colo. 2005), the court
concluded that section 13-80-104(1)(b)(II) did not apply to
TDC's third-party claims and that those claims were
barred by the limitations period in section 13-80-104(1)(a).
Accordingly, the court entered summary judgment in favor of
CEC and Schofield.
6 Thereafter, Sopris Lodging and TDC reached a settlement
agreement. TDC assigned its third-party claims to Sopris
Lodging, and Sopris Lodging, standing in the shoes of TDC,
filed this appeal.
7 Sopris Lodging contends that the court misapplied section
13-80-104 in ruling that the third-party claims ...