Layton Construction Co. v. Shaw Contract Flooring Services, Inc.

COLORADO COURT OF APPEALS 2016COA155

Court of Appeals No. 15CA1435
City and County of Denver District Court No. 14CV34053
Honorable Morris B. Hoffman, Judge

Layton Construction Co., Inc., a Utah corporation,

Plaintiff-Appellant,

v.

Shaw Contract Flooring Services, Inc., d/b/a Spectra Contract Flooring, a
Georgia corporation,

Defendant-Appellee.

JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division IV
Opinion by JUDGE J. JONES
Graham and Miller, JJ., concur

Announced October 20, 2016

The Holt Group LLC, L. Tyrone Holt, Kevin P. Walsh, Kevin D. Poyner, Denver,
Colorado, for Plaintiff-Appellant

Hall & 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.

I. Background

¶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, including Shaw.

1
¶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.1 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 4.2

1 The indemnification clause provided for indemnification from “all
damages, costs and expenses incurred in connection” with “all
claims, demands, suits, proceedings, attachments, levies, penalties,
damages and losses, liabilities, liens, claims for indemnification or
contribution, and any other matter whatsoever” “arising out of or
resulting from,” among other things, Shaw’s work on the project.
2 In its answer brief on appeal, Shaw pointed out that Layton had
said in response to Interrogatory 8 that its indemnification claim
included attorney fees and costs incurred in defending against

2
¶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

BCRE’s claims. In its reply brief, however, Layton ignored its
response to Interrogatory 8 and instead argued that its response to
Interrogatory 4 was irrelevant, for a number of unconvincing
reasons. At oral argument, Layton’s counsel argued that Layton’s
response to Interrogatory 8 was irrelevant because Layton objected
to that interrogatory, but he did not explain why the interrogatory
was objectionable or why any objection would render the answer
irrelevant to this issue. (The record shows that Layton’s only
specific objection to the interrogatory was an attorney work-product
objection.) We perceive no relevant, nonfrivolous objection to that
standard interrogatory and, in any event, Layton went on to answer
the interrogatory despite the objections. Its sworn answer to the
interrogatory is enlightening, and we therefore consider it.

3
“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)

4
that Layton had incurred in defending against BCRE’s claims, to

the extent those expenses were attributable to work performed by

each subcontractor.

¶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.3

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

3 Layton claims to have incurred over $16 million in attorney fees
and costs in defending against BCRE’s claims. Layton’s complaint
also alleged losses resulting from Layton’s payments for work that
the subcontractors had not performed. But it is not clear if Layton
alleged that Shaw was one of those subcontractors, and in any
event Layton does not assert on appeal any argument relating to
those alleged losses.

5
after [settlement of or final judgment against the contractor in]” the

construction defect claim).4

¶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.

II. 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.

4Interestingly, there was no settlement of the prior case as between
Layton and BCRE, nor was there any judgment “against” Layton on
BCRE’s claims in the prior case, calling into question the
applicability of section 13-80-104(1)(b)(II), C.R.S. 2016, under its
own terms. But Shaw has not raised that issue, so we will not
address it.

6
¶ 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).

III. 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,

7
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 Real Estate, 109 P.3d at 608; accord Loveland Essential Grp.,

¶ 14.

IV. Analysis

¶ 14 Layton makes three fundamental contentions: (1) its claims

against Shaw in this case are not identical to those it asserted

against Shaw in the prior case; (2) CDARA modifies the doctrine of

claim preclusion in the construction defect context by requiring (or

at least allowing) splitting of indemnification claims; and (3) various

8
exceptions to the claim preclusion doctrine apply to this action. We

address and reject each of these contentions in turn.

A. Identity of Claims

¶ 15 Layton argues that its claims in this case are not identical to

those it asserted in the prior case both because it did not seek

indemnity for attorney fees and costs in the prior case and because

its claims in this case do not arise out of the same transaction as

its claims in the prior case.5 Both of these arguments are based on

distortions of, or are flat out contrary to, applicable, well-settled

legal principles.

¶ 16 We need not decide whether Layton sought indemnification for

fees and costs in the prior case because it obviously could have

done so, a fact it admitted in opposing Shaw’s summary judgment

motion.6 Layton does not contest that any claim for indemnification

5Layton concedes that the other three requirements of claim
preclusion are met.
6 Shaw, however, has much the better of the argument on whether
Layton sought indemnification of fees and costs in the defect case.
Layton’s sworn discovery responses in the prior case said that the
attorney fees and costs it had incurred and were incurring in
defending against BCRE’s claims were included in its
indemnification claim. And the language of Layton’s complaint in

9
based on Shaw’s duty to defend accrued, at the latest, in 2009

when it first began incurring attorney fees and costs in connection

with BCRE’s claims, which Shaw would not pay. See Jones v. Sun

Carriers, Inc., 856 F.2d 1091, 1094 (8th Cir. 1988) (indemnity claim

for costs and expenses accrues when indemnitee has made a

payment or otherwise expended sums, while indemnity claim for

liabilities arises when a liability is legally imposed; applying

Arkansas law); Farmers Ins. Exch. v. Am. Mfrs. Mut. Ins. Co., 897

P.2d 880, 882 (Colo. App. 1995) (duty to defend arises when claims

are asserted against party to whom the duty is owed); see also

Sterenbuch v. Goss, 266 P.3d 428, 433 (Colo. App. 2011) (once some

injury has occurred, a claim has accrued even if further injury

continues to occur).7 That Layton may not have known the full

extent of Shaw’s liability while Shaw was a party in the prior case

does not matter; as Layton conceded in opposing Shaw’s summary

that case was certainly broad enough to include a claim for such
fees and costs.
7 Layton’s complaint in this case expressly alleges that in 2009 it
incurred such fees and costs before it added Shaw to the prior case.
In responding to Shaw’s motion for summary judgment, Layton
submitted an affidavit repeating this allegation. Its opening brief in
this appeal does so as well.

10
judgment motion, it could have presented evidence of and obtained

a judgment for all attorney fees and costs incurred or likely to be

incurred in the prior case. (Indeed, after the district court entered

its judgment of liability against the subcontractors in the prior case,

Layton sought to have the court determine how much the

subcontractors owed Layton for attorney fees and costs it had

expended relating to BCRE’s claims.)

¶ 17 Layton’s argument that the claims are not identical because

they do not arise from the same transaction or series of

transactions is meritless. Colorado law treats “a single claim

broadly for purposes of merger and bar, to include more than

merely the same cause of action or theory of recovery.” In re

Greene, 2013 CO 29, ¶ 11. A single claim “embrace[s] all remedial

rights of a plaintiff against a defendant growing out of the relevant

transaction or series of connected transactions.” Id. (emphasis

added); see also Argus Real Estate, 109 P.3d at 609 (“[C]laim

preclusion also bars a litigant from splitting claims into separate

actions because once judgment is entered in an action it

‘extinguishes the plaintiff’s claim . . . includ[ing] all rights of the

plaintiff to remedies against the defendant with respect to all or any

11
part of the transaction, or series of connected transactions, out of

which the action arose.’’’ (quoting Restatement (Second) of

Judgments § 24 (Am. Law Inst. 1982))). “Generally, a contract is

considered to denote a single transaction for the purpose of claim

preclusion, and therefore claims for different breaches of a contract

ordinarily must be brought in the same action.” Loveland Essential

Grp., ¶ 16; see also Sun Indem. Co. of N.Y. v. Landis, 119 Colo. 191,

195, 201 P.2d 602, 604 (1948) (stating, perhaps in dictum but

perhaps as an alternative holding, that “the right of recovery of the

indemnitee against the indemnitor is a single right of action which

cannot be split”); Goodstein v. Silver Plume Mines Co., 79 Colo. 269,

276, 245 P. 714, 716 (1926) (“A party is not ordinarily entitled to

split his cause of action by suing to recover a portion of his claim

arising out of an entire indivisible contract, and thereafter to

institute another action for the balance of the claim.”).8

8 A claim for attorney fees and costs pursuant to a contractual
indemnification provision seeks such an award as damages, not
costs, and therefore must be submitted to the fact finder; contrary
to Layton’s suggestion, it may not be submitted in a motion under
C.R.C.P. 121, section 1-22. See Ferrell v. Glenwood Brokers, Ltd.,
848 P.2d 936, 941 (Colo. 1993) (if attorney fees are damages, they
“must be determined by the trier of fact and proven during the
damages phase”); Sun Indem. Co. of N.Y. v. Landis, 119 Colo. 191,

12
¶ 18 Layton’s claims in both cases arose out of a single contract.

Indeed, they arose out of the same provision of the same contract.

And they all related to BCRE’s claims against Layton for

construction defects at the same project. Given all that, Layton’s

assertions that the claims in both cases did not form a convenient

trial unit and that the parties would not reasonably have expected

to litigate the current claims in the prior case are untenable. See

Williams v. Ins. Co. of N. Am., 692 So. 2d 654, 657-58 (La. Ct. App.

1997).9

195, 201 P.2d 602, 604 (1948) (when a party seeks indemnification
for litigation expenses, those expenses are damages); Lawry v. Palm,
192 P.3d 550, 568 (Colo. App. 2008) (attorney fees sought as a
legitimate consequence of the contract sued upon are damages); see
also C.R.C.P. 121, § 1-22(2) (rule does not apply to attorney fees
awardable as damages). In the prior case, Layton expressly and
repeatedly characterized the fees and costs at issue as damages.
The district court in the prior case did so as well.
9 Layton’s assertions ring especially hollow in light of the fact that it
pursued claims for indemnification of attorney fees and costs
against several subcontractors in the prior case and obtained
judgment for such indemnification. And after the judgment in that
case, Layton asked the district court to hold a hearing on how
much Shaw should be required to pay Layton to indemnify it for
attorney fees and costs incurred in that case. Though Layton
submitted an affidavit from Michael Colligan, its Manager of
Contract Risk, saying that Layton had not intended to dismiss any
indemnification claim for attorney fees, costs, and expenses against
Shaw in the prior case, we are not persuaded that Mr. Colligan’s

13
¶ 19 In sum, because Layton could have asserted an indemnity

claim against Shaw for attorney fees and costs in the prior case,

there is identity of claims. Argus Real Estate, 109 P.3d at 608-09;

Loveland Essential Grp., ¶ 15; cf. Thresherman’s Mut. Ins. Co. v.

Wallingford Mut. Ins. Co., 26 F.3d 776, 781-83 (7th Cir. 1994)

(indemnification claim that could have been brought in prior action

in which indemnitee dismissed claims against indemnitor with

prejudice barred by claim preclusion; indemnification claims,

including the one for fees and costs, arose out of the same

transaction and could not be split).

B. CDARA

¶ 20 Layton argues that the ninety-day provision of CDARA, section

13-80-104(1)(b)(II), modifies the common law doctrine of claim

affidavit creates a genuine issue of material fact regarding Layton’s
reasonable expectations given the law on this issue and Layton’s
own conduct in the prior case (which includes, in addition to its
pursuit of fees and costs against other subcontractors, its sworn
interrogatory responses (which Mr. Colligan executed) and
statements in the motion to dismiss). See Anderson v. Lindenbaum,
160 P.3d 237, 241 (Colo. 2007) (affidavit that conflicts with prior
sworn testimony may be disregarded if it presents no credible
explanation for the contradiction); see also Williams v. Ins. Co. of N.
Am., 692 So. 2d 654, 658 (La. Ct. App. 1997) (“Nor do we think that
reasonable parties would expect that the attorney’s fees for an
action would be an entirely separate matter from the action itself.”).

14
preclusion as to indemnification for attorney fees and costs by

requiring a contractor to wait until after it has been found liable to

sue subcontractors for such indemnification. Put another way,

Layton argues that the General Assembly intended “to eliminate the

practice of adding every party and every claim in one proceeding

and intended that only subcontractors responsible for the alleged

damages be permitted to participate in the defect action.”10 We

perceive no such intent.

In CLPF-Parkridge One, L.P. v. Harwell Investments, Inc., 105

P.3d 658 (Colo. 2005), the supreme court held that the ninety-day

provision “is a statute of limitations tolling provision[,] not . . . a

ripeness provision that prevents a defendant in a construction

defect lawsuit from . . . bring[ing] an indemnity or contribution

claim against or add[ing] a party allegedly responsible for the

construction defect.” Id. at 659. Thus, it “does not bar . . . third-

party claims for indemnity or contribution in construction defect

lawsuits; rather, [it] also allows indemnity or contribution claims to

10Layton’s argument is at odds with the fact that it sued several
subcontractors for indemnification for attorney fees and costs in the
prior case and obtained judgment against them for such fees and
costs.

15
be brought by a separate lawsuit.” Id.; accord Richmond Am. Homes

of Colo., Inc. v. Steel Floors, LLC, 187 P.3d 1199, 1205 (Colo. App.

2008); Fire Ins. Exch. v. Monty’s Heating & Air Conditioning, 179

P.3d 43, 46 (Colo. App. 2007). Though Layton argues that CLPF-

Parkridge does not apply because it did not concern an

indemnification claim for attorney fees and costs, that is a

distinction without a meaningful difference. The supreme court’s

interpretation of the meaning of CDARA — that it allows but does

not require an indemnitee to sue for indemnification in a defect case

— applies equally to such claims.11 Indeed, because an

indemnification clause imposing a duty to defend (and liability for

costs of defense) creates liability for the indemnitor regardless of

whether an indemnitee is found liable to a third party, there would

be no reason for the General Assembly to require an indemnitee to

11 Layton argues in the alternative that CLPF-Parkridge should be
modified or overturned. But of course we do not have authority to
do either. People v. Novotny, 2014 CO 18, ¶ 26 (only the supreme
court can overrule its precedent on matters of state law); In re
Estate of Ramstetter, 2016 COA 81, ¶ 40 (the court of appeals must
follow precedent of the Colorado Supreme Court).

16
wait until its liability to a third party is determined before seeking

indemnification for fees and costs.12

¶ 21 Contrary to Layton’s assertion, we see nothing “absurd” about

construing CDARA so as not to require a separate lawsuit against a

subcontractor for indemnification for attorney fees and costs — that

is, to allow such claims to be asserted in the defect case. Nor does

such an interpretation render the ninety-day provision of section

13-80-104(1)(b)(II) meaningless. In cases in which indemnitors

have not been made parties to the construction defect case, the

provision applies.

¶ 22 The following question, however, remains: does CDARA alter

the application of the doctrine of claim preclusion where a

contractor asserts an indemnification claim against a subcontractor

in a construction defect case, as CDARA allows? That is, even

though CDARA allows a contractor to sue a subcontractor for

indemnification in the defect case, does it permit claim splitting, the

practice of asserting part of a claim in one case and part of the

12 If the result of the first case is a finding that the contractor is not
liable to the owner, there is obviously no claim for indemnification
for such liability against the subcontractor. But such a result does
not extinguish the subcontractor’s liability for costs of defense.

17
claim in a later case? Though Layton argues (apparently in the

alternative) that it does, we conclude that it does not.

¶ 23 Because the common law doctrine of claim preclusion is

“fundamental to the operation of the judicial system,” a statutory

provision will not be deemed to create exceptions to the doctrine

unless it does so “in a manner that is undoubtedly clear.” Argus

Real Estate, 109 P.3d at 611. This limitation is consistent with the

broader principle that “statutes may not be interpreted to abrogate

the common law unless such abrogation was clearly the intent of

the General Assembly.” Id. (alteration omitted) (quoting Preston v.

Dupont, 35 P.3d 433, 440 (Colo. 2001)). A statute may do so only

“expressly or by clear implication.” Id.

¶ 24 We see nothing in CDARA expressly or by clear implication

abrogating the doctrine of claim preclusion in the circumstances

before us. As CLPF-Parkridge holds, the provision of CDARA

allowing indemnification claims after an indemnitee’s liability has

been determined is only a tolling provision. Its limited purpose is

only to allow such claims. It does not purport to render

inapplicable claim preclusion where a contractor chooses instead to

sue the subcontractor in the defect case. And where an indemnitor

18
is made a party to the construction defect case, as CDARA allows,

the policy concerns which animate the doctrine of claim preclusion

— protecting litigants from the burden of multiple cases and

preventing needless litigation — retain their force. Nothing in

CDARA indicates otherwise. Cf. id. at 611-12 (holding that section

15-11-1106(2), C.R.S. 2016, which allows an action to reform an

instrument found to violate the rule against perpetuities, did not

abrogate claim preclusion for quiet title actions).

C. Exceptions to Claim Preclusion

¶ 25 Layton contends in the alternative that certain exceptions to

the doctrine of claim preclusion apply to this case. None of them

do.

¶ 26 First, Layton argues that Shaw somehow agreed to the filing of

a later indemnification case because (1) Shaw failed to object to

Layton’s motion to dismiss without prejudice its contribution claim

in the prior case and (2) Shaw did not object to the alleged

reservation of the indemnification claim in Layton’s motion to

voluntarily dismiss with prejudice the indemnification claim in the

prior case. See Restatement (Second) of Judgments § 26(1)(a)

(parties may agree to allow a plaintiff to split its claim).

19
¶ 27 But we do not see how Shaw’s failure to object to the dismissal

without prejudice of the contribution claim constituted an

agreement to allow Layton to assert an indemnification claim in a

later case. And Layton’s motion to dismiss its indemnification claim

did not purport to reserve its current indemnification claims. To

the contrary, it expressly sought dismissal with prejudice of claims

that it had asserted and those which it could have asserted. As

discussed, Layton could have asserted its current indemnification

claims in the prior case (a point Layton conceded in the district

court). Those claims did not arise after that case (the category of

claims Layton purported to reserve). They had already arisen.

Layton’s current position that its motion did not seek dismissal of

its current indemnification claims with prejudice is pure

dissembling.13

¶ 28 Second, Layton argues that the district court in the prior case

allowed it to assert its current indemnification claims in a

subsequent case. See Restatement (Second) of Judgments

13 Further, in noting that each party would bear its own attorney
fees and costs, Layton’s proposed order of dismissal expressly
contemplated that Shaw would have no liability for Layton’s
attorney fees and costs incurred in the prior case.

20
§ 26(1)(b) (“[t]he court in the first action has expressly reserved the

plaintiff’s right to maintain the second action”). But nothing in the

court’s order of dismissal remotely suggests such permission. And

to the extent Layton argues that the court implicitly accepted the

reservation of claims in the motion to dismiss, there is no evidence

that the court did so. Further, we have already concluded that

Layton’s definition of “future claims” in its motion did not include

its current indemnification claims.

¶ 29 Third, Layton again argues that CDARA allows claim splitting.

See Restatement (Second) of Judgment § 26(1)(d) (a statute may

allow a plaintiff to split its claim). As discussed above, however,

nothing in CDARA allows claim splitting in these circumstances.

¶ 30 Fourth, Layton argues that the fact it was “suffering from

recurring harm by Shaw’s unwillingness to defend” it constitutes

good reason to allow it to split its claim. See Restatement (Second)

of Judgments § 26(1)(e) (claim may be split for reasons of

substantive policy in a case involving a continuing or recurrent

wrong). Layton does not identify any substantive policy supporting

claim splitting in this context, and we perceive none. And we

observe that although Layton argues that CDARA is intended to

21
streamline litigation, it fails to explain how requiring separate

actions, or allowing a second action against a subcontractor after

the contractor has already sued the subcontractor once for the

same transaction, as it claims CDARA does, is consistent with that

goal.

¶ 31 “[J]udicially[] recognized exceptions to claim preclusion are

extremely rare.” Argus Real Estate, 109 P.3d at 611; accord Lobato,

70 P.3d at 1166. Nothing about this case calls for the application of

any such exception.

V. Attorney Fees

¶ 32 Shaw requests an award of its attorney fees incurred on

appeal, arguing that Layton’s appeal is substantially frivolous and

substantially vexatious. See § 13-17-102(2), (4), C.R.S. 2016.

¶ 33 We agree with Shaw that Layton’s appeal is substantially

frivolous. The district court’s judgment was so plainly correct and

the legal authority is so clearly contrary to Layton’s positions that

there is really no appealable issue. Thus, Layton’s appeal is

frivolous as filed. See Castillo v. Koppes-Conway, 148 P.3d 289,

292 (Colo. App. 2006).

22
¶ 34 Though Layton asserts that its appeal is not frivolous because

it has raised “novel” issues of first impression, the novelty of those

issues is nothing more than a reflection of their futility. See Ozee v.

Am. Council on Gift Annuities, Inc., 143 F.3d 937, 941 (5th Cir.

1998) (“The specter of sanctions deters not only the raising of

claims that have been considered and rejected repeatedly, but also

the pursuit of untested claims that are worthless on their face.”);

Hilmon Co. (V.I.) Inc. v. Hyatt Int’l, 899 F.2d 250, 253 (3d Cir. 1990)

(sanctions for appeals appropriate because, although novel theories

were asserted, “at the outset the result of each appeal was obvious:

they were utterly without merit and could only result in delay”);

Wagner v. Wagner, 371 P.3d 807, 815 (Idaho 2016) (finding appeal

frivolous despite party’s assertions of issues of first impression); see

also Nienke v. Naiman Grp., Ltd., 857 P.2d 446, 449 (Colo. App.

1992) (issue of first impression may be frivolous if the party fails to

present a rational argument in support of it); Sullivan v. Lutz, 827

P.2d 626, 628 (Colo. App. 1992) (“[I]f a party fails to present

plausible arguments in support of a novel claim, sanctions may be

imposed under [section 13-17-102], irrespective of the subjective

state of mind of the party or the attorney at the time the claim was

23
asserted.”). The outcome of this appeal was preordained by case

law, including, but by no means limited to, Argus Real Estate,

Loveland Essential Group, and CLPF-Parkridge, which, though not

in all applications directly on point, were sufficiently so that Layton

had no chance of prevailing.14

¶ 35 Shaw is entitled to an award of reasonable appellate attorney

fees against Layton and its counsel, jointly and severally. See § 13-

17-102(3). We exercise our discretion under C.A.R. 39.1 to remand

the case to the district court for a determination of the amount of

those fees.

VI. Conclusion

¶ 36 The judgment is affirmed. We remand the case to the district

court to determine the reasonable amount of Shaw’s attorney fees

incurred on appeal. See C.A.R. 39.1.

JUDGE GRAHAM and JUDGE MILLER concur.

14Layton’s appeal is also frivolous as argued, at least in part. For
example, Layton misrepresents its positions in the prior case and
some of the district court’s actions in that case.

24