COLORADO COURT OF APPEALS 2016COA158 

Court of Appeals No. 15CA1959 

Garfield County District Court No. 13CV30033 

Honorable Gail H. Nichols, Judge 

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. 

JUDGMENT AFFIRMED 

Division VI 

Opinion by JUDGE RICHMAN 

Bernard and Fox, JJ., concur 

Announced October 20, 2016 

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. 
1 

¶ 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 
2 

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 thirdparty 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 thirdparty 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 

 

1 Hereinafter, we refer to TDC and its principals collectively as 

“TDC.” 
3 

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 of TDC were time 

barred. We disagree. 

A. Standard of Review 

¶ 8 We review a trial court’s order on a summary judgment motion 

de novo. Gibbons v. Ludlow, 2013 CO 49, ¶ 11. Summary 
4 

judgment is appropriate when the pleadings and supporting 

documents establish that there is no genuine issue as to any 

material fact and that the moving party is entitled to judgment as a 

matter of law. Id. 

¶ 9 Statutory interpretation is a question of law that we review de 

novo. Klinger v. Adams Cty. Sch. Dist. No. 50, 130 P.3d 1027, 1031 

(Colo. 2006). Our task is to give effect to the intent of the General 

Assembly. Id. To do so, we look first to the language of the statute. 

Id. We construe words and phrases according to their commonly 

accepted and understood meanings. A.S. v. People, 2013 CO 63, 

¶ 10. Where the language is clear and unambiguous, we do not 

resort to other rules of statutory construction. Klinger, 130 P.3d at 

1031. 

B. Applicable Law 

¶ 10 Section 13-80-104(1)(a) provides that the two-year statute of 

limitations set forth in section 13-80-102(1) applies to construction 

defect claims: 

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, 
5 

construction, or observation of construction 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. 

¶ 11 Section 13-80-104(1)(b) provides: 

(I) Except as otherwise provided in 

subparagraph (II) of this paragraph (b), a claim 

for relief arises under this section at the time 

the claimant or the claimant’s predecessor in 

interest discovers or in the exercise of 

reasonable diligence should have discovered 

the physical manifestations of a defect in the 

improvement which ultimately causes the 

injury. 

(II) Notwithstanding the provisions of 

paragraph (a) of this subsection (1), all claims, 

including, but not limited to indemnity or 

contribution, 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 time 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. 
6 

¶ 12 In CLPF-Parkridge One, the supreme court held that section 

13-80-104(1)(b)(II) does not bar a defendant contractor from 

asserting third-party claims for indemnity or contribution against 

subcontractors before the resolution of the underlying construction 

defect claims. 105 P.3d at 663-65. The court concluded that 

section 13-80-104(1)(b)(II) is not a ripeness provision but instead 

“toll[s] the otherwise applicable statute of limitations in order to 

allow indemnity or contribution claims to be brought in a separate 

lawsuit . . . within ninety days after settlement of or judgment in 

the construction defect lawsuit.” Id. at 665. Thus, a defendant in a 

construction defect lawsuit may either (1) bring appropriate 

cross-claims or third-party claims in the same lawsuit or (2) wait to 

file a separate suit within the ninety-day period after a settlement or 

judgment in the construction defect lawsuit in accordance with 

section 13-80-104(1)(b)(II). Id. at 664-65. 

C. Analysis 

¶ 13 Relying on CLPF-Parkridge One, Sopris Lodging asserts that 

section 13-80-104(1)(b)(II) tolled the statute of limitations for the 

third-party claims that TDC asserted against subcontractors in this 

case. We disagree. 
7 

¶ 14 As set forth in CLPF-Parkridge One, section 13-80-104(1)(b)(II) 

gives a contractor the option to bring indemnity or contribution 

claims against subcontractors in a separate lawsuit after the 

underlying claims are resolved, and it tolls the statute of limitations 

for such claims. Here, however, TDC did not wait to file claims 

against subcontractors in a separate lawsuit. It chose instead to 

assert third-party claims in the original construction defect 

litigation. Thus, we conclude that section 13-80-104(1)(b)(II) does 

not apply to TDC’s third-party claims. 

¶ 15 CLPF-Parkridge One did not address the statute of limitations 

applicable to third-party claims brought in the original construction 

defect lawsuit. Nonetheless, we conclude that those claims are 

subject to the two-year statute of limitations in section 

13-80-104(1)(a) and the accrual provision in section 

13-80-104(1)(b)(I). 

¶ 16 Section 13-80-104(1)(a) provides that all construction defect 

actions must be brought within two years (the time provided in 

section 13-80-102) after “the claim for relief arises.” See also 

§ 13-80-104(1)(c) (such actions include actions for indemnity and 

contribution). Section 13-80-104(1)(b)(I) states that, except as 
8 

otherwise provided in section 13-80-104(1)(b)(II), a claim for relief 

“arises” when the claimant discovers or should have discovered the 

physical manifestations of the defect. Thus, the only exception to 

the generally applicable accrual provision is for claims against third 

parties filed in a separate lawsuit in accordance with section 

13-80-104(1)(b)(II). See CLPF-Parkridge One, 105 P.3d at 663-65. 

Because that exception is inapplicable here, TDC was required to 

comply with sections 13-80-104(1)(a) and 13-80-104(1)(b)(I) in filing 

its third-party claims. 

¶ 17 Our interpretation is supported by Nelson, Haley, Patterson & 

Quirk, Inc. v. Garney Companies, Inc., which concluded that the 

accrual language currently found in section 13-80-104(1)(b)(I) 

required indemnity claims to be brought within the same period of 

time as the underlying construction defect claims. 781 P.2d 153, 

155 (Colo. App. 1989). That case was decided before the General 

Assembly amended the statute in 2001 to add section 

13-80-104(1)(b)(II) to permit the filing of contribution and indemnity 

claims within ninety days after the entry of a settlement or 

judgment. However, as explained above, TDC did not pursue its 

third-party claims in accordance with section 13-80-104(1)(b)(II). 
9 

Therefore, like the division in Nelson, we conclude that TDC’s thirdparty claims were governed by the same limitation period and 

accrual provisions applicable to the underlying construction defect 

claims. 

¶ 18 It is undisputed that TDC received notice of the alleged defects 

on March 11, 2011, when Sopris Lodging sent TDC a notice of 

claim. Under section 13-80-104(1)(b)(I), the claims accrued and the 

two-year limitations period began to run on that date. Apart from 

section 13-80-104(1)(b)(II), which we have deemed inapplicable, 

Sopris Lodging does not contend that any other tolling provision 

applied to TDC’s claims. Therefore, the limitations period expired 

with respect to those claims on March 11, 2013. Because TDC did 

not file its third-party claims until 2014, the claims were time 

barred. 

¶ 19 We acknowledge that this analysis leads us to the somewhat 

anomalous conclusion that the statute of limitations applicable to 

TDC’s third-party claims could have expired before Sopris Lodging 

filed the underlying construction defect claims against TDC.2 

 

2 However, in this case the statute of limitations may have been 

tolled with respect to Sopris Lodging’s underlying claims against 
10 

Nevertheless, TDC had several options available to preserve its 

third-party claims against subcontractors. When TDC received 

Sopris Lodging’s notice of claim, it could have sent its own notices 

to subcontractors, thereby tolling the statute of limitations during 

the notice of claims process pursuant to section 13-20-805, C.R.S. 

2016. See Shaw Constr., LLC v. United Builder Servs., Inc., 2012 

COA 24, ¶ 28. It also could have sought a tolling agreement with 

those subcontractors. Alternatively, TDC could have waited to file 

indemnity or contribution claims against subcontractors until after 

Sopris Lodging’s underlying claims against it were resolved, in 

accordance with section 13-80-104(1)(b)(II).3 TDC did not pursue 

any of these options. 

 

TDC for some time during the notice of claim process pursuant to 

section 13-20-805, C.R.S. 2016, and possibly pursuant to the 

tolling agreement between those parties. Although TDC filed a 

motion seeking to dismiss Sopris Lodging’s claims pursuant to the 

statute of limitations, the motion was not ruled upon by the district 

court. 

3 As the district court noted in its order, this option carries the risk 

that the claims will be barred by the six-year statute of repose in 

section 13-80-104(1)(a), C.R.S. 2016, if the underlying claims are 

not resolved within that time. See Thermo Dev., Inc. v. Cent. 

Masonry Corp., 195 P.3d 1166, 1168 (Colo. App. 2008) (concluding 

that section 13-80-104(1)(b)(II) does not act as a tolling provision for 

the six-year statute of repose). However, we are not persuaded that 
11 

¶ 20 Therefore, for the reasons set forth above, we conclude that 

TDC’s third-party claims were time barred. In reaching this 

conclusion, we apply the express language of the statutes, and the 

interpretation of the statutes as explained in CLPF-Parkridge One. 

It is not our role to rewrite the statutes, as that is the function of 

the General Assembly. 

III. Sopris Lodging’s Separate Lawsuit 

¶ 21 After Sopris Lodging settled its claims against TDC, Sopris 

Lodging, as TDC’s assignee, brought indemnity and contribution 

claims against CEC and Schofield in a separate lawsuit purportedly 

under section 13-80-104(1)(b)(II). CEC and Schofield request that 

we dismiss the complaint in that case and rule that Sopris 

Lodging’s claims are barred by the doctrine of claim preclusion. 

However, those claims are the subject of a separate case and are 

not before us in this appeal. With exceptions not applicable here, 

our jurisdiction is limited to appeals from final judgments, see 

§ 13-4-102(1), C.R.S. 2016, and no appeal of a final judgment in 

that case is before us. Accordingly, we do not address those claims. 

 

the potential effect of the statute of repose should alter our analysis 

of the applicable statute of limitation. 
12 

IV. Attorney Fees 

¶ 22 We also reject CEC’s request for an award of appellate attorney 

fees. C.A.R. 39.1 requires a party requesting attorney fees to state 

the legal basis that justifies an award of fees. CEC asserts that 

Sopris Lodging was “on notice that its separate claims were futile 

and this appeal would be unsuccessful.” To the extent that this 

argument refers to the grounds for an award of fees stated in 

section 13-17-102(4), C.R.S. 2016, and C.A.R. 38, we do not deem 

the appeal frivolous, groundless, or vexatious under those 

provisions. See Mission Denver Co. v. Pierson, 674 P.2d 363, 366 

(Colo. 1984) (an appeal is not frivolous merely because it is 

ultimately unsuccessful). 

V. Conclusion 

¶ 23 The judgment is affirmed. 

JUDGE BERNARD and JUDGE FOX concur.