CourtListener 10654112•V&H v. Beardsley
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23CA0630 V&H v Beardsley 08-14-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0630
Jefferson County District Court No. 19CV221
Honorable Tamara S. Russell, Judge
V&H Development Co., LLC,
Plaintiff-Appellee and Cross-Appellant,
v.
Craig Beardsley, Beardsley Construction & Development, Inc., and Beardsley
Enterprises LLC,
Defendants-Appellants and Cross-Appellees.
JUDGMENT AFFIRMED
Division VI
Opinion by JUDGE WELLING
Brown and Moultrie, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 14, 2025
Fox Rothschild LLP, Spencer L. Sears, Risa B. Brown, Esther H. Lee, Denver,
Colorado, for Plaintiff-Appellee and Cross-Appellant
Martin Hild, P.A., Ll. Rhyddid Watkins, Codi K. Cox, Aurora, Colorado, for
Defendants-Appellants and Cross-Appellees
¶1 Defendants, Craig Beardsley, Beardsley Construction &
Development, Inc., and Beardsley Enterprises LLC (collectively, the
Beardsley Defendants), appeal the judgment in favor of plaintiff,
V&H Development Co., LLC (V&H), on V&H’s negligent
misrepresentation and breach of contract claims. V&H, in turn,
cross-appeals its award of damages and the trial court’s denial of its
motion to amend. We affirm the judgment.
I. Background
¶2 In 2015, V&H purchased an undeveloped lot with the
intention of building a single-family home. V&H hired Beardsley
Construction (succeeded by Beardsley Enterprises) to act as the
builder and general contractor for the project. Craig Beardsley and
his son, Matthew Beardsley, own Beardsley Enterprises. V&H
never entered into a formal written agreement with Beardsley
Construction or Beardsley Enterprises, but the parties agree that
they formed a contract.
¶3 In 2017, while construction of the home was ongoing, the
Beardsley Defendants were either fired from or quit the project. At
the time the Beardsley Defendants ended their work on the project,
most of the construction was complete, with the exception of some
1
punch list items. And in 2018, V&H sold the home to Christopher
and Svetlana Martie (the Homeowners).
¶4 In 2019, V&H brought suit against the Beardsley Defendants
(the 2019 action) alleging that they were liable for damages because
of project delays, cost overruns, and defects with the HVAC system.
V&H asserted the following claims against Craig Beardsley:
intentional misrepresentation of project completion schedule and
estimated project costs, intentional misrepresentation and
nondisclosure of project invoicing, and negligent misrepresentation
of project completion schedule and project costs. V&H asserted the
following claims against Beardsley Construction and Beardsley
Enterprises: breach of contract, construction defects, and unjust
enrichment. V&H later filed a motion to amend its complaint to add
new claims and defendants, but the court denied the motion. V&H
also withdrew its intentional misrepresentation and construction
defect claims, and the trial court later entered judgment dismissing
those claims with prejudice.
¶5 In 2023, the court held a five-day jury trial on the breach of
contract and negligent misrepresentation claims. V&H’s unjust
enrichment claim wasn’t presented to the jury because it was an
2
equitable claim. The jury found against (1) Beardsley Enterprises
on the breach of contract claim in the amount of $78,207.51;
(2) Beardsley Construction on the breach of contract claim in the
amount of one dollar; and (3) Craig Beardsley on the negligent
misrepresentation claim in the amount of one dollar. The Beardsley
Defendants filed a motion for directed verdict and later a motion for
judgment notwithstanding the verdict (JNOV), both of which were
denied. V&H filed a post-trial motion for additur or, alternatively, a
new trial on damages, which the court also denied.
II. Analysis
¶6 On appeal, the Beardsley Defendants contend that the
judgment against them should be reversed because V&H (1) raised
construction defect claims without complying with the Construction
Defect Action Reform Act (CDARA); (2) failed to prove its breach of
contract claim; (3) failed to prove its negligent misrepresentation
claim; and (4) failed to prove damages associated with its negligent
misrepresentation claim. On cross-appeal, V&H contends that the
trial court erroneously (1) denied its motion for additur; (2) declined
to give the jury its proposed instruction on multiple claims and
3
double recovery; and (3) denied its motion to amend its complaint
and its motion to reconsider.
¶7 To cogently analyze the issues presented by the Beardsley
Defendants in their appeal and by V&H in its cross-appeal, we must
first address the parties’ failure to comply with the Colorado
Appellate Rules, which impairs and necessarily constrains our
review of their respective contentions. We then address V&H’s
contentions that the trial court erred by failing to instruct the jury
that it would ensure there wouldn’t be double recovery if verdicts
were entered in favor of V&H on multiple claims and by denying
V&H’s motion to amend its complaint and its motion to reconsider
that denial.
A. The Parties’ Noncompliance with the Colorado Appellate Rules
¶8 The Beardsley Defendants and V&H have failed to comply with
the Colorado Appellate Rules. Most glaring among these failures is
the omission of two of the five days of trial transcripts from the
record on appeal — meaning we have a woefully incomplete picture
of what evidence was or wasn’t presented at trial. As discussed
more fully below, these failures impair our ability to fully address
the merits of the Beardsley Defendants’ contentions that V&H
4
(1) couched a construction defect claim as a breach of contract
claim without complying with the CDARA; (2) failed to sufficiently
prove its breach of contract claim; and (3) failed to properly prove
its negligent misrepresentation claim — or any associated damages
— against Craig Beardsley. The failures also affect our review of
V&H’s assertion that the trial court erred by denying its motion for
additur.
1. Legal Principles
¶9 It’s expected that counsel is familiar with and complies with
the Colorado Appellate Rules. O’Quinn v. Baca, 250 P.3d 629, 631
(Colo. App. 2010). The Colorado Appellate Rules aren’t “mere
technicalities.” Id. And adherence to these procedural rules “is
essential to the administration of justice.” Id. (quoting United
States v. Seigel, 168 F.2d 143, 146 (D.C. Cir. 1948)).
[T]he administration of justice involves not
only meticulous disposition of the conflicts in
one particular case but the expeditious
disposition of hundreds of cases. If the courts
must stop to inquire where substantial justice
on the merits lies every time a litigant refuses
or fails to abide the reasonable and known
rules of procedure, there will be no
administration of justice. Litigants must be
required to cooperate in the efficient
disposition of their cases.
5
Id. (quoting Seigel, 168 F.2d at 146).
¶ 10 Colorado Appellate Rule 10 requires an appellant to “include
in the record transcripts of all proceedings necessary for
considering and deciding the issues on appeal.” C.A.R. 10(d)(3); see
also Northstar Project Mgmt., Inc. v. DLR Grp., Inc., 2013 CO 12, ¶ 14
(appellant is required to designate “all evidence relevant” to review
of the sufficiency of the evidence). If a party asserts error, that
party must “affirmatively show” that error occurred. People v.
Duran, 2015 COA 141, ¶ 11. “[W]hen determining whether the
party asserting error has met its burden, a reviewing court must
review and consider the entire record and apply the evidence in a
manner that will support the judgment.” Id. But we can’t review
facts that don’t appear in the record; instead we must indulge “[t]he
presumption . . . that material portions omitted from the record
would support the judgment.” Id. at ¶ 12; see also Hock v. N.Y. Life
Ins. Co., 876 P.2d 1242, 1252 (Colo. 1994) (“An appellate court
must presume that the trial court’s findings and conclusions are
supported by the evidence when the appellant has failed to provide
a complete record.”).
6
¶ 11 Furthermore, C.A.R. 28(a)(7)(B) requires that the arguments
advanced in an appellant’s opening brief contain
a clear and concise discussion of the grounds
upon which the party relies in seeking a
reversal or modification of the judgment or the
correction of adverse findings, orders, or
rulings of the lower court or tribunal, with
citations to the authorities and parts of the
record on which the appellant relies.
(Emphasis added.) When a party fails to direct us to relevant
portions of the record, “appellants place the burden of searching
records on us,” but “[w]e are . . . under no obligation to undertake
such a search,” and “parties ‘should not “expect the court to peruse
the record without the help of pinpoint citations.”’” O’Quinn, 250
P.3d at 631-32 (quoting L.S.F. Transp., Inc. v. NLRB, 282 F.3d 972,
975 n.1 (7th Cir. 2002)).
2. The Record and Briefing Are Inadequate to Assess the
Beardsley Defendants’ Claim that V&H
Failed to Comply with CDARA
¶ 12 The Beardsley Defendants contend that the trial court erred
when it denied their motion for JNOV in which they argued that
V&H improperly sought and recovered damages for construction
defects without complying with CDARA. To assess this claim, we
must conduct a de novo review of the evidence presented at trial.
7
See M.G. Dyess, Inc. v. MarkWest Liberty Midstream & Res., L.L.C.,
2022 COA 108, ¶ 27 (We review de novo a trial court’s ruling on a
motion for JNOV, and “[m]otions for JNOV should only be granted
when, from the standpoint of a reasonable juror, there was no
evidence, or inference therefrom, upon which a verdict against the
movant could be sustained.”). But the Beardsley Defendants only
provided us with two days of trial transcripts from a five-day trial.1
The omitted transcripts appear to include the direct examination of
Mike Vahabzadegan, the principal of V&H, among others, who may
have testified to the terms of the parties’ oral contract. Without the
complete record, we can’t properly analyze whether V&H was
awarded damages for claims that required compliance with CDARA.
See Broomfield Senior Living Owner, LLC v. R.G. Brinkmann Co.,
1 Based on our review of the record, it appears that this omission
was intentional. Although counsel for the Beardsley Defendants
initially requested transcripts from all five days of trial, according to
a September 26, 2023, affidavit from the court reporter, counsel
requested that the court reporter not prepare a transcript for the
first two days of the trial. Specifically, in her affidavit, the court
reporter stated that, “[u]pon receipt and review of the estimate [of
the cost for preparing the designated transcripts], [c]ounsel removed
January 9, 2023, and January 10, 2023 and requested we prepare
transcripts for 5/13/2021, 5/20/2021, 1/12/2023, and
1/13/2023.”
8
2017 COA 31, ¶ 28 (whether claims fall within CDARA depends on
the nature of the allegations).
¶ 13 Additionally, the Beardsley Defendants failed to include
pinpoint record citations in their opening brief regarding their
contention that V&H recovered damages for construction defect
claims without complying with CDARA. In their answer-reply brief,
the Beardsley Defendants included record citations to invoices and
emails purportedly showing that V&H recovered for construction
defects, but they failed to cite trial testimony discussing the exhibits
or showing the admission of the exhibits at trial. This further
impairs our ability to analyze this issue.
¶ 14 Without citations to witness testimony and without the full
transcript of the trial, we can’t properly review this claim and must
conclude that the Beardsley Defendants failed to show that any
error occurred. See Duran, ¶¶ 11-12.
3. The Record and Briefing Are Inadequate to Assess the
Beardsley Defendants’ Claim that V&H Failed to
Prove Breach of Contract
¶ 15 The Beardsley Defendants contend that V&H failed to present
sufficient evidence of damages to establish its breach of contract
claim because V&H (1) wasn’t legally entitled to recover for cost
9
overruns under the parties’ contract, and even if it were, V&H didn’t
present sufficient evidence to prove any cost overruns or delay
damages; (2) waived any right to recover cost overruns as damages
for breach of contract; and (3) withheld evidence that would have
reduced the damages award, entitling the Beardsley Defendants to
remittitur.
¶ 16 Again, the Beardsley Defendants failed to provide the trial
transcripts or record citations necessary to support these
contentions. Without the full trial transcript and without pinpoint
citations to the record, we can’t determine V&H’s legal entitlement
to recover damages, any purported waiver of a legal entitlement to
recovery, or whether the jury awarded V&H excess damages. See In
re Estate of Chavez, 2022 COA 89M, ¶ 35 (“When a jury verdict is
challenged on the grounds that it is unsupported by the evidence,
we must review the entire record to determine whether there is
competent evidence from which the jury logically could have
reached its verdict.”) (emphasis added) (citation omitted). Thus, we
can’t and won’t address the merits of the Beardsley Defendants’
arguments that V&H failed to prove damages for breach of contract.
10
4. The Record Is Inadequate to Assess the Beardsley Defendants’
Negligent Misrepresentation Claims
¶ 17 The Beardsley Defendants contend that the judgment against
Craig Beardsley for negligent misrepresentation must be reversed
for three reasons: (1) the negligent misrepresentation claim was
improperly based on statements about future performance; (2) V&H
failed to prove that Craig Beardsley’s estimate fell below the
requisite standard of care; and (3) V&H failed to establish damages
associated with its negligent misrepresentation claim.
¶ 18 Without the entire trial transcript, we aren’t able to determine
whether the negligent misrepresentation verdict was based entirely
on statements about future performance, whether there was
adequate testimony regarding the standard of care for providing
cost estimates, whether Craig Beardsley’s conduct fell below the
standard of care for providing cost estimates, or whether V&H failed
to prove damages associated with the negligent misrepresentation
claim. We therefore decline to address the merits of any of the
Beardsley Defendants’ arguments regarding the propriety of the
negligent misrepresentation judgment against Craig Beardsley.
Instead, we presume that the omitted portion of the record supports
11
the judgment on this claim. See, e.g., In re Marriage of Dean, 2017
COA 51, ¶ 13 (“Where the appellant fails to provide . . . a transcript,
the [appellate] court must presume that the record supports the
judgment.”).
5. The Record Is Inadequate to Assess Whether the Court Erred
by Denying V&H’s Motion for Additur
¶ 19 V&H contends that the trial court erred by denying its motion
for additur. According to V&H, the jury improperly conflated the
imposition of nominal damages against Beardsley Construction for
its breach of contract claim with the need to award nominal
damages for its negligent misrepresentation claim. V&H requests
that an additur of $78,207.51 be applied to its negligent
misrepresentation claim or, alternatively, that it receive a new trial
on the issue of damages.
¶ 20 But V&H doesn’t point to anything in the record indicating
that it’s entitled to more damages than it was awarded. And despite
V&H stating in its notice of cross-appeal that all of the trial
transcripts were necessary and that it would “ensure that the
transcripts are properly and timely designated,” V&H failed to
provide the transcripts from the first two days of trial for our review.
12
See Hock, 876 P.2d at 1252 (“[T]he moving party will not be
permitted to take advantage of its own failure to designate pertinent
portions of the transcript as part of the record on appeal.”); Wolven
v. Velez, 2024 COA 8, ¶ 53 n.6 (“It is the obligation of the party
asserting error in a judgment to present a record that discloses that
error, for a judgment is presumed to be correct until the contrary
affirmatively appears.” (quoting Schuster v. Zwicker, 659 P.2d 687,
690 (Colo. 1983))).
¶ 21 Without citations to record support for V&H’s assertion that it
is entitled to additional damages and without the entire trial
transcript, we can’t review whether the jury awarded adequate
damages to V&H; instead, we must presume that the trial court’s
ruling was correct. See Duran, ¶¶ 11-12; cf. McCall v. Meyers, 94
P.3d 1271, 1272 (Colo. App. 2004) (“A party cannot overcome a
deficiency in the record by statements in the briefs.”). Thus, we
decline to further address whether the trial court erred by denying
V&H’s motion for additur.
¶ 22 Because the missing trial transcripts aren’t necessary for the
resolution of V&H’s remaining claims and because V&H provided
13
record citations in compliance with C.A.R. 28 for its remaining
contentions, we address them on the merits.
B. The Trial Court Didn’t Err by Declining to Give V&H’s
Proposed Jury Instruction
¶ 23 V&H contends that the trial court erred by declining to give
the jury its proposed instruction regarding double recovery.
According to V&H, the trial court’s jury instruction on multiple
recovery when suing on alternative but duplicative claims for relief
“prejudiced [it], invited jury confusion[,] and misled the jury into
believing it could award damages for only one of [its] claims —
breach of contract or negligent misrepresentation — but not both.”
V&H contends that its proposed language on double recovery was
necessary to ameliorate this confusion. We aren’t persuaded.
1. Additional Facts
¶ 24 Before trial, the parties agreed that the trial court should give
the following instruction modeled after the pattern jury
instructions:
Plaintiff V&H has sued for the same injuries,
damages, and losses on both of its claims
asserted against the Beardsley Defendants.
The claims on which V&H has sued and on
which you have been instructed are:
1. Negligent Misrepresentation; and 2. Breach
14
of Contract. If you find for V&H on more than
one claim, you may award it damages only
once for the same injuries, damages, and
losses.
See CJI-Civ. 6:14 (2025).
¶ 25 But V&H also proposed that the court include the following
additional language in the instruction: “In rendering its judgment
on any verdict you return, the Court will ensure that V&H does not
recover twice for the same injuries, damages or losses should you
return your verdict for V&H and award it damages on one or more
of its claims.” According to V&H, this additional language was
necessary to avoid jury confusion because without it the jury would
“be incorrectly led to believe that it could award damages on only
one of [its] claims.” The Beardsley Defendants objected to the
additional proposed language. The trial court agreed that the
additional language wasn’t necessary and declined to add the
proposed language to the instruction it gave the jury.
2. Standard of Review and Legal Principles
¶ 26 We review de novo whether jury instructions, as a whole,
“accurately inform the jury of the governing law.” Ochoa v. Vered,
212 P.3d 963, 966 (Colo. App. 2009). But we review the trial court’s
15
decision to give a particular jury instruction for an abuse of
discretion. Id. It isn’t error for the trial court to refuse to give an
instruction, “even if [it’s] correct in legal effect, if the other
instructions given adequately inform the jury of the applicable law.”
Peterson v. Tadolini, 97 P.3d 359, 360 (Colo. App. 2004). Generally,
when the trial court instructs the jury in a civil case, it should use
instructions “contained in the Colorado Jury Instructions that
apply to the evidence under the prevailing law.” Ochoa, 212 P.3d at
966.
3. The Trial Court Properly Instructed the Jury on the Law
¶ 27 To begin, we can’t discern how the proposed language adds
clarity to the instruction the court gave. All that V&H’s proposed
additional language would have done was inform the jury what the
court would do with the jury’s verdict once rendered; the proposed
additional language didn’t provide the jury with any additional
direction with respect to how it was to perform any of its duties or
tasks. Thus, we aren’t persuaded that the instruction was
necessary or that the trial court abused its discretion in declining to
include the proposed language.
16
¶ 28 Further, V&H’s reliance on Steward Software Co. v. Kopcho,
275 P.3d 702 (Colo. App. 2010), rev’d on other grounds, 266 P.3d
1085 (Colo. 2011), doesn’t persuade us otherwise. In Kopcho, a jury
found against Kopcho on claims for civil theft, breach of contract,
and breach of fiduciary duty. 275 P.3d at 705. The jury, however,
awarded substantive damages only on the civil theft claim and
awarded nominal damages on the remaining claims. Id. On appeal,
a division of this court concluded that the jury instructions “as a
whole erroneously prevented the jury from awarding the same
damages on all three . . . claims.” Id. at 711. The division stated,
“[I]n a case like this one, where a jury finds liability on multiple
claims, the jury must be directed to award the same damages on all
three claims if the damages are proven as to those claims.” Id.
¶ 29 But that’s not the instruction that V&H requested. Its
proposed additional language would have simply informed the jury
what the court would do in the event the jury awarded duplicate
damages on multiple claims. The proposed language didn’t
countermand the direction to the jury — which V&H didn’t object to
— that it may award V&H damages “only once for the same injuries,
damages, and losses.” In other words, V&H’s proposed language
17
wouldn’t have fixed the defect it claims the court’s instruction
suffered from. And it never requested the sort of instruction
contemplated by the Kopcho division. See Vititoe v. Rocky Mountain
Pavement Maint., Inc., 2015 COA 82, ¶ 60 (errors not brought to the
trial court’s attention are generally deemed waived and an appellate
court won’t consider arguments premised on these errors).
C. The Trial Court Didn’t Err by Denying V&H’s Motion to Amend
Its Complaint
¶ 30 We next address V&H’s contention that the trial court erred by
denying its motion to amend the complaint and its motion to
reconsider. We aren’t persuaded.
1. Additional Facts
¶ 31 In 2020, soon after V&H filed suit against the Beardsley
Defendants, the Homeowners filed suit against V&H (the
Homeowner action). In their complaint, the Homeowners alleged
that the home suffered from a multitude of construction defects.
The Beardsley Defendants weren’t named as defendants in the
Homeowner action, but V&H filed a motion to consolidate the
Homeowner action with its 2019 action against the Beardsley
Defendants for the purpose of discovery only, which the trial court
18
granted. In May 2021, the Homeowners settled the Homeowner
action with V&H. As part of the settlement agreement, the
Homeowners and V&H agreed that the Homeowner action would be
dismissed with prejudice and the Homeowners “assign[ed] to V&H
any and all claims asserted or that could have [been] asserted” in
the 2019 action.
¶ 32 But the litigation in the 2019 action remained ongoing. On
August 12, 2021 — approximately three months after settling with
the Homeowners — V&H filed a motion to amend its complaint. In
its motion, V&H stated that it sought “to add the new action for
contribution and as assignee of [the Homeowners]” and to “add
additional defendants to this action and identify the additional
defects revealed throughout the discovery process.” In its proposed
amended complaint, V&H sought to add the following claims
against the Beardsley Defendants: negligence - construction defects,
negligence per se, contribution, and negligent
misrepresentation/nondisclosure. V&H further sought to add nine
new defendants including Matthew Beardsley and several
subcontractors. V&H also asserted approximately thirty additional
defects “caused by Beardsley and the new Defendants.”
19
¶ 33 The trial court denied V&H’s motion to amend the complaint,
finding that
[c]onsolidation of the actions does not make
the Beardsley Defendants a party to the
[Homeowners’] suit against V&H. Even though
the [Homeowners] assigned all of their claims
to V&H in one case, the assignment does not
carry over to any other lawsuit involving V&H.
V&H should have added the new defendants
and claims in [the Homeowner action] or filed a
new lawsuit . . . . The Beardsley Defendants
should not be required to be involved in
litigation by V&H against subcontractors that
may owe V&H for claims assigned to them by
the [Homeowners], or for claims that V&H has
known about all along and not added until
now.
¶ 34 After the court denied its motion to amend, V&H filed a motion
requesting that the court reconsider that denial. The court denied
the motion to reconsider. After the court denied both motions, V&H
filed a new action against the Beardsley Defendants and Matthew
Beardsley individually in November 2021 (the 2021 action).
2. Legal Principles and Standard of Review
¶ 35 C.R.C.P. 15(a) provides, in relevant part, that “a party may
amend his pleading only by leave of court or by written consent of
the adverse party; and leave shall be freely given when justice so
requires.” The rule reflects “a liberal policy toward timely
20
amendments to pleadings” and “encourages trial courts to look
favorably upon motions to amend.” Benton v. Adams, 56 P.3d 81,
85 (Colo. 2002). But there are numerous grounds on which a trial
court may deny a motion to amend a pleading, including “undue
delay, . . . undue prejudice to the opposing party, and futility of
amendment.” Id. at 86. When determining whether to grant or
deny a party’s motion for leave to amend the pleadings, the court
must consider the totality of the circumstances and “balanc[e] the
policy generally favoring the amendment of pleadings against the
burden that granting the amendment may impose on other parties.”
Vinton v. Virzi, 2012 CO 10, ¶ 10.
¶ 36 The decision to grant a party leave to amend “is within the
sound discretion of the trial court.” Benton, 56 P.3d at 85. We
review a trial court’s decision to deny a party’s motion to amend
pleadings for an abuse of discretion. Riccatone v. Colo. Choice
Health Plans, 2013 COA 133, ¶ 47. “A trial court abuses its
discretion when its decision is manifestly arbitrary, unreasonable,
or unfair” or “when it misconstrues or misapplies the law.” Rinker
v. Colina-Lee, 2019 COA 45, ¶ 29. But if a trial court denies a party
21
leave to amend on futility grounds, we review that decision de novo.
Schaden v. DIA Brewing Co., 2021 CO 4M, ¶ 34.
3. The Trial Court’s Grounds for Denying the Motion to Amend
¶ 37 It appears from the court’s order that it denied V&H’s motion
to amend for two independent reasons: (1) the proposed
amendment would be futile because V&H failed to comply with the
statute of limitations contained in section 13-80-104(1)(b)(II), C.R.S.
2024, and (2) the proposed amendment was unduly delayed and
prejudicial to the Beardsley Defendants. V&H argues that neither
basis survives appellate scrutiny. We conclude that the second one
does.
a. Futility
¶ 38 To the extent that the trial court denied the motion to amend
the complaint on the grounds that either the amendment or claims
brought in a future suit would be futile, it erred.
i. The Statute of Limitations
¶ 39 Pursuant to section 13-80-104(1)(a), all actions against a
contractor “performing or furnishing the design, planning,
supervision, inspection, construction, or observation of
construction of any improvement to real property” must be brought
22
within the timeline provided in section 13-80-102, C.R.S. 2024,
after a claim for relief arises. If a party is bringing a civil action that
falls under section 13-80-102, it “must be commenced within two
years after the cause of action accrues.” § 13-80-102(1). According
to section 13-80-104(1)(b)(I), “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.”
¶ 40 Notwithstanding this statutory limitation,
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.
§ 13-80-104(1)(b)(II)(A)-(B). While a third-party claim under section
13-80-104(1)(b)(II)(A) doesn’t arise until a case is settled or
23
judgment is entered, “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.” Goodman v. Heritage Builders, Inc., 2017 CO 13, ¶ 9.
¶ 41 Further, as relevant here, under CDARA section 13-20-
803.5(1)(a), C.R.S. 2024, if a plaintiff is filing suit against a
construction professional, they must deliver written notice of the
claim to the professional no later than seventy-five days before filing
the suit. If a plaintiff properly sends notice to a “construction
professional in accordance with section 13-20-803.5 within the time
prescribed for the filing of an action under any applicable statute of
limitations or repose, then the statute of limitations or repose is
tolled until sixty days after the completion of the notice of claim
process described in section 13-20-803.5.” § 13-20-805, C.R.S.
2024.
ii. The Statute of Limitations Didn’t Bar V&H’s Claims
¶ 42 Because V&H settled the Homeowner action on May 20, 2021,
neither V&H’s motion to amend nor its 2021 action was barred by
the statute of limitations. Rather, in accordance with section 13-
80-104(1)(b)(II)(A)-(B), V&H’s settlement of the Homeowner action
24
caused a claim for relief to arise and V&H had ninety days from the
settlement date (i.e., until August 18, 2021), to bring its new claims
against the Beardsley Defendants.
¶ 43 V&H filed its motion to amend the complaint on August 12,
2021. This was within the ninety-day time period established by
section 13-80-104(1)(b)(II). Further, it’s of no moment that V&H
sought to bring the claims in the 2019 action rather than in an
entirely new suit. Indeed, section 13-80-104(1)(b)(II)(A)-(B) specifies
only that the claims must be brought within ninety days after they
arise. The statute is agnostic, however, as to whether that should
be done in a separate lawsuit. Under Goodman, a party can bring
the claims either in the construction defect litigation before a
settlement or judgment or in a separate lawsuit after a settlement
or judgment. Goodman, ¶ 9. In this case, V&H attempted to do
just that. While V&H didn’t file an entirely separate lawsuit from its
original lawsuit against the Beardsley Defendants, it filed new
claims arising from the Homeowner action settlement (1) after the
settlement and (2) in a lawsuit distinct from the Homeowner action.
Thus, the trial court erred in concluding that the contribution
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claims asserted in the amended complaint were time barred and,
therefore, that permitting the amendment would have been futile.
¶ 44 Concluding that the amendment to the complaint would be
futile because the claims sought to be added were time barred
wasn’t the trial court’s only error. It also unnecessarily weighed in
on whether V&H could bring its contribution claims in a separate
action, ruling that “[V&H] has not complied with the requirements
of C.R.S. § 13-80-104[](1)(b)(II) by . . . filing a new case against the
subcontractors within 90 days of settlement.” This conclusion was
erroneous because it failed to consider the tolling provision in
section 13-20-805.
¶ 45 As noted before, under section 13-20-805, if a notice of claim
is sent to a construction professional “within the time prescribed for
the filing of an action under any applicable statute of limitations or
repose, then the statute of limitations or repose is tolled until sixty
days after the completion of the notice of claim process described in
section 13-20-803.5.” (Emphasis added.) According to section 13-
20-803.5(1), the notice of claim process first requires that written
notice of claim be delivered to a construction professional within a
statutorily prescribed timeframe. V&H complied with this
26
requirement and began the notice of claim process against the
Beardsley Defendants on July 28, 2021, and against Matthew
Beardsley on July 29, 2021, when it sent them letters regarding
“Notice of Claim Pursuant to . . . § 13-20-801, et. seq.” Because
V&H began this process within ninety days of the settlement, the
limitations period was tolled “until sixty days after the completion of
the notice of claim process.” § 13-20-805 (emphasis added). And in
this case, at least with respect to the Beardsley Defendants, the
parties didn’t complete the notice of claim process until April 6,
2022, when the Beardsley Defendants informed V&H that they
wouldn’t offer to settle the repairs. See § 13-20-803.5(6).
¶ 46 Because the notice of claim process didn’t conclude until April
6, 2022, the statute of limitations was tolled until sixty days after
April 6, 2022, well after V&H filed its 2021 action against the
Beardsley Defendants on November 21, 2021.
¶ 47 This doesn’t end our analysis of this issue, however. We next
consider the court’s alternate independent ground for denying the
motion.
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b. Undue Delay and Prejudice
¶ 48 Delay alone may justify a trial court’s denial of a motion for
leave to amend “if active case management has occurred to
minimize delay.” Benton, 56 P.3d at 85. But while a trial court may
deny leave to amend based on delay, “delay in seeking an
amendment is not a sufficient basis if the other party is not
prejudiced.” Wisehart v. Zions Bancorporation, 49 P.3d 1200, 1208
(Colo. App. 2002). The record supports the court’s finding that
V&H unduly delayed its request to amend the complaint and that
the delay was prejudicial to the Beardsley Defendants.
¶ 49 In addition to finding that V&H had known about the
contribution claim since September 2019 — nearly two years before
it asked to amend its complaint to add the contribution claim — the
court also found that V&H’s motion to amend sought to “add nine
new Defendants and approximately [thirty] new claims.” The record
supports that V&H sought to assert approximately thirty additional
defects, add nine new defendants, and add three new claims
against the Beardsley Defendants. And V&H’s request to do so
would significantly impact — and certainly delay — a case that, at
that point, had been underway for almost two years. Indeed, by the
28
time V&H sought leave to amend, discovery had been ongoing in the
case, and it had previously been set for trial.
¶ 50 Given the length of time the parties had been actively
litigating, and the likely delay created by the addition of multiple
parties and numerous claims, the trial court was within its
discretion to deny the motion to amend as unduly delayed and
prejudicial. See Benton, 56 P.3d at 85 (“If a party seeks leave to
amend after substantial progress toward trial has occurred, or if
granting leave to amend would significantly delay the progress of
the case to trial, a trial court may deny leave to amend if it should
have been brought earlier.”). And because this basis, standing
alone, is sufficient to support the court’s decision, the trial court
didn’t abuse its discretion by denying V&H’s motion to amend and
its subsequent motion to reconsider.
III. Disposition
¶ 51 The judgment is affirmed.
JUDGE BROWN and JUDGE MOULTRIE concur.
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