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Sopris Lodging LLC. v. Schofield Excavation, Inc.

Court of Appeals of Colorado, Sixth Division

October 20, 2016

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,
v.
Schofield Excavation, Inc., a Colorado corporation; and Colorado Engineering Contractors, Inc., a Colorado corporation, Third-Party Defendants-Appellees.

         Garfield County District Court No. 13CV30033 Honorable Gail H. Nichols, Judge

          Wolf Slatkin & Madison, P.C., Albert B. Wolf, Jonathan L. Madison, Denver, Colorado, for Third-Party Plaintiffs-Appellants

          Markusson, Green & Jarvis, H. Keith Jarvis, Daniel R. Coombe, Anne K. McMichael, Denver, Colorado, for Third-Party Defendant-Appellee Schofield Excavation, Inc.

          Stuart D. Morse & Associates, LLC, Stuart D. Morse, Matthew J. Bayma, Greenwood Village, Colorado, for Third-Party Defendant-Appellee Colorado Engineering Contractors, Inc.

          JUDGE RICHMAN, Bernard and Fox, JJ., concur

          JUDGMENT AFFIRMED

         ¶ 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.

         I. Background

         ¶ 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.[1]

         ¶ 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.

         II. Discussion

         ¶ 7 Sopris Lodging contends that the court misapplied section 13-80-104 in ruling that the third-party claims ...


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