Broomfield Senior Living Owner, LLC v. R.G. Brinkmann Co

COLORADO COURT OF APPEALS 2017COA31

Court of Appeals No. 16CA0101
City and County of Broomfield District Court No. 14CV30139
Honorable C. Scott Crabtree, Judge

Broomfield Senior Living Owner, LLC, a Delaware limited liability company;
and Sunrise Development, Inc., LLC, a Virginia corporation,

Plaintiffs-Appellants,

v.

R.G. Brinkmann Company, d/b/a Brinkmann Constructors, a Missouri
corporation,

Defendant-Appellee.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division V
Opinion by JUDGE FREYRE
Ashby, J., concurs
Davidson*, J., specially concurs

Announced March 9, 2017

Fox Rothschild LLP, Patrick J. Casey, Spencer L. Sears, Risa B. Brown, Denver,
Colorado, for Plaintiffs-Appellants

Markusson, Green, and Jarvis, Gregg S. Rich, Daniel R. Coombe, Wyatt M.
Cox, Denver, Colorado, for Defendant-Appellee

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶1 In this construction defect case involving a senior assisted and

independent living facility (senior facility), we must decide whether

the parties’ contract or relevant Colorado statutes govern the

accrual of defect claims. To do so, we must decide a matter of first

impression — whether a senior facility constitutes “residential

property” that is protected by a provision of the Construction Defect

Action Reform Act (CDARA) entitled the “Homeowner Protection Act

of 2007” (HPA).1 The HPA renders a contract’s limitation or waiver

of CDARA’s rights and remedies void as against public policy in

cases involving claims arising from residential property.

¶2 Plaintiffs, Broomfield Senior Living Owner, LLC and Sunrise

Development, Inc., LLC (collectively Broomfield), appeal the trial

court’s order granting summary judgment for defendant, R.G.

Brinkmann Company d/b/a Brinkmann Constructors (Brinkmann).

Broomfield brought claims against Brinkmann for breach of

contract, negligence, negligence per se, negligent

1 The title “Homeowner Protection Act of 2007” does not appear
anywhere in the current statutes; however, the text of the session
law enacting the HPA included a short title that indicated “[t]his act
shall be known and may be cited as the ‘Homeowner Protection Act
of 2007.’” Ch. 164, sec. 1, 2007 Colo. Sess. Laws 610.

1
misrepresentation,2 and breach of express warranties. Brinkmann

raised both contractual limitations and statutory limitations

defenses to all of Broomfield’s claims. Because we conclude that

the term “residential property” in the HPA unambiguously includes

senior facilities, we find the contract’s accrual provisions void as

against public policy. Therefore, the relevant statutory accrual

provisions apply here. We further conclude that genuine issues of

material fact remain regarding (1) when the defects were discovered

and any claims accrued; (2) whether Brinkmann engaged in

impermissible design services outside of the contract; (3) whether

Brinkmann was given an adequate opportunity to correct the

defects; and (4) whether the defects alleged are latent or patent.

Accordingly, we reverse and remand for further proceedings.

I. Background

¶3 In 2007, Sunrise Development and a former owner entered

into an American Institute of Architects Standard Form of

Agreement contract (the contract) for the construction of a senior

2The trial court did not address this claim and neither did the
parties in their briefs. Therefore, we do not consider it.

2
living community (the building) in Broomfield, Colorado.3 The

contract contains a general warranty provision, § 3.5, which

guarantees that the materials and equipment used will “be of good

quality” and that the work will be “free from defects not inherent in

the quality required or permitted, and that the work will conform to

the requirements of the Contract Documents.” In addition to the

general warranty provision, the contract includes an additional

warranty (§ 12.2.2) for latent defects discovered after the date of

final completion. See infra Appendix 1. In relevant part, this

additional warranty extends the warranty period by one year

following discovery of the latent defect. It requires the owner to

promptly notify the contractor of any defect and provides that an

owner who fails to provide prompt notice of a defect waives the right

to require its correction or to make a claim for breach of warranty.

3 Broomfield Senior Living is the current owner of the building and
assumed ownership through a transfer of title from the original
owner. The parties agree that specific contract language (§ 13.2.1),
giving successive owners rights and obligations under the contract,
gives Broomfield standing to bring a breach of contract claim,
despite its status as a subsequent owner. Therefore, our breach of
contract analysis is limited to subsequent owners who have
contractual standing.

3
A contractor’s failure to correct the defect in a reasonable period of

time permits the owner to make the correction.

¶4 The contract also includes a clause (§ 13.7) limiting

Brinkmann’s liability in the event the work was defective. See infra

Appendix 2. This clause contains three separate accrual provisions.

It provides that claims arising from acts or failures to act (1)

occurring before substantial completion accrue no later than the

date of substantial completion; (2) occurring between substantial

completion and final payment certificate accrue no later than the

final payment certificate issuance date; and (3) occurring after final

payment accrue no later than the time provided in the warranty

(§ 3.5) or the additional warranty (§ 12.2), whichever is later.

¶5 A certificate of substantial completion was issued on March

16, 2009. The project was completed on May 15, 2009, when a

certificate of occupancy was issued. At that time, neither

Broomfield nor Brinkmann noted any defects in the construction of

the building.

¶6 In the fall of 2012, Broomfield discovered sewer flies and hired

a general contractor to investigate their cause. The contractor

determined that the sewer flies resulted from broken sewer pipes.

4
Because the pipes were located beneath concrete slabs, they could

not be readily accessed or repaired. Thus, on November 27, 2012,

Broomfield began excavation beneath the building to inspect and

repair the broken pipes. The contractor eventually advised

Broomfield that the breaks resulted from soil expansion and

recommended further investigation of other potential pipe breaks.

¶7 On April 26, 2013, Broomfield hired SBSA, Inc. (SBSA) to

conduct this further investigation. SBSA began its investigation on

May 3, 2013, and continued investigating through March 2015.

During that two-year period, SBSA identified numerous building

defects that it attributed to improper construction. See infra

Appendix 3.

¶8 On November 21, 2013, SBSA issued a notice of latent defects

to Broomfield identifying the defects discovered. On January 28,

2014, Broomfield issued a notice of claim informing Brinkmann of

the latent defects. On March 13, 2014, Brinkmann conducted a

site visit. In a letter dated May 12, 2014, Brinkmann rejected the

notice of claim, stating that the “primary problem affecting this site

is the soils.” It noted that the building itself had not moved and

credited the proper design and construction of the void space to this

5
non-movement. After comparing the list of defects provided by

Broomfield to the construction documents, Brinkmann concluded

that it had performed its work in accordance with the documents,

that there was no defective construction, and that there was no

“work requiring repair.”

¶9 On July 21, 2014, Broomfield filed its complaint against

Brinkmann. Brinkmann responded with a motion for summary

judgment arguing that there were no issues of material fact because

the statute of limitations — as established by the terms of the

contract — had run. The trial court granted Brinkmann’s motion

for summary judgment, reasoning that because all claims accrued

under the contract at final completion (May 15, 2009), the two-year

statute of limitations applicable to civil claims under § 13-80-

102(1)(a), C.R.S. 2016, expired on May 15, 2011, three years before

Broomfield filed its complaint. As to latent defects, the court

concluded that Broomfield had waived its right to assert claims for

repairs under the contract by failing to give Brinkmann prompt

notice of the defects or an adequate time to repair them before

performing the repair work itself.

II. Analysis

6
¶ 10 Broomfield contends the trial court erred in granting summary

judgment and applying the accrual provisions of the contract rather

than CDARA’s accrual provision in § 13-80-104(1)(b)(I), C.R.S.

2016. It reasons that the contractual limitations contained in

section 13.7.1.1 of the contract are void as against public policy

under the plain language of the HPA. Brinkmann responds that the

contract modification was permissible and that all claims accrued

on March 16, 2009, at substantial completion or at the latest on

May 15, 2009, at final completion. While Brinkmann does not

dispute that Broomfield is the property owner, it argues that the

term “residential property” in the HPA is ambiguous and that the

legislative history demonstrates that Broomfield is not the type of

“residential property owner” the HPA was intended to protect

because it is a commercial entity.

A. Standard of Review

¶ 11 We review a trial court’s order granting summary judgment de

novo. Lewis v. Taylor, 2016 CO 48, ¶ 13; W. Elk Ranch, L.L.C. v.

United States, 65 P.3d 479, 481 (Colo. 2002). Summary judgment

is a drastic remedy and is appropriate only when the pleadings and

the supporting documentation show that no genuine issue of

7
material fact exists and that the moving party is entitled to

judgment as a matter of law. W. Elk Ranch, L.L.C., 65 P.3d at 481.

In determining whether a genuine issue of material fact exists, we

look at the “the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits.” C.R.C.P. 56(c).

Like the trial court, we may not assess witness credibility and the

weight of evidence when determining a motion for summary

judgment. Anderson v. Vail Corp., 251 P.3d 1125, 1127 (Colo. App.

2010). “The nonmoving party is entitled to the benefit of all

favorable inferences from the undisputed facts, and all doubts as to

the existence of a triable issue of fact must be resolved against the

moving party.” W. Elk Ranch, L.L.C., 65 P.3d at 481. A “material

fact” is one that will affect the outcome of the case or claim.

Thompson v. Md. Cas. Co., 84 P.3d 496, 501 (Colo. 2004).

¶ 12 Additionally, both contractual interpretation and statutory

interpretation present questions of law that we review de novo.

Lewis, ¶ 14 (statutory interpretation reviewed de novo); Union Ins.

Co. v. Houtz, 883 P.2d 1057, 1061 (Colo. 1994) (interpretation of

contracts reviewed de novo); Douglas v. City & Cty. of Denver, 203

8
P.3d 615, 618 (Colo. App. 2008) (statutory interpretation reviewed

de novo).

B. Accrual Dates Comparison

¶ 13 Under sections 13.7.1 and 13.7.2 of the contract, all of

Brinkmann’s “acts or failures to act” accrued at the earliest at

substantial completion (March 16, 2009) and at the latest at final

completion (May 15, 2009). Thus, under § 13-80-102(1), the

contractual limitations period expired on either March 16, 2011, or

May 15, 2011, irrespective of when the acts or failures to act were

discovered.

¶ 14 In contrast, CDARA links the accrual of construction defect

claims to their discovery. Under § 13-80-104(1)(b)(I), Brinkmann’s

acts or failures to act accrued on the date that the “physical

manifestations of a defect” were discovered or in the exercise of

reasonable diligence should have been discovered. It is undisputed

that the first physical manifestations of a defect in the building

were the sewer flies that appeared sometime in the fall of 2012.

Thus, under CDARA, the claims accrued in the fall of 2012, and

under § 13-80-102(1), the statute of limitations expired in the fall of

2014. Additionally, § 13-80-104(1)(a) contains a statute of repose

9
which expires six years “after the substantial completion of the

improvement to the real property,” unless it is extended two years

because the underlying cause of action arose “during the fifth or

sixth year after substantial completion of the improvement to real

property.” See also In Re Goodman v. Heritage Builders, 2017CO 13

¶¶ 8,11. Key to both the limitations period and the repose period is

the claim accrual date.

C. Homeowner Protection Act

¶ 15 The HPA represents that portion of CDARA that is intended to

preserve adequate rights and remedies for residential property

owners who bring construction defect actions. § 13-20-802, C.R.S.

2016. It provides in relevant part:

In order to preserve Colorado residential
property owners’ legal rights and remedies, in
any civil action or arbitration proceeding
described in section 13-20-802.5(1), any
express waiver of, or limitation on, the legal
rights, remedies, or damages provided by the
“Construction Defect Action Reform Act” . . . or
on the ability to enforce such legal rights,
remedies, or damages within the time provided
by applicable statutes of limitation or repose
are void as against public policy.

§ 13-20-806(7)(a), C.R.S. 2016.

10
¶ 16 Thus, if Broomfield is a “residential property owner,” then

section 13.7 of the contract — which shortens the period in which

claims accrue by eliminating the time for discovery of the defect

provided in § 13-80-104(1)(b)(I) — constitutes a limitation on the

ability to enforce rights, remedies, and damages under CDARA and

is void as against public policy under the HPA.

¶ 17 To determine whether Broomfield is a “residential property

owner” we employ the tenets of statutory construction. In

interpreting a statute, our primary objective is to ascertain and give

effect to the intent of the legislature. Specialty Rests. Corp. v.

Nelson, 231 P.3d 393, 397 (Colo. 2010). We look first to the

statutory language, giving words and phrases their plain and

ordinary meanings. Doubleday v. People, 2016 CO 3, ¶ 19. We

read words and phrases in context and construe them according to

the rules of grammar and common usage. Id.; Gagne v. Gagne,

2014 COA 127, ¶ 25. In doing so, we read the statutory scheme as

a whole, and we give consistent, harmonious, and sensible effect to

all of its parts. Doubleday, ¶ 19. “If the statutory language is clear,

we interpret the statute according to its plain and ordinary

meaning,” Nelson, 231 P.3d at 397, and we need not conduct any

11
further statutory analysis. Gagne, ¶ 27. If, however, the words are

ambiguous or unclear such that they “do not inexorably lead to a

single result,” we may employ other interpretive aids, including

consideration of the legislative history or the title of the statute, to

determine the object sought to be attained by the statute and the

consequences of a particular construction. State v. Nieto, 993 P.2d

493, 501 (Colo. 2000); see also Concerned Parents of Pueblo, Inc. v.

Gilmore, 47 P.3d 311, 313 (Colo. 2002) (stating that if the language

is ambiguous we can look to the title of the statute to determine the

General Assembly’s intent).

¶ 18 We begin with the plain language of § 13-20-806(7)(a) and note

that it applies only to “claimants asserting claims arising out of

residential property.” § 13-20-806(7)(c). Because the statute does

not define “residential property,”4 we consider its common usage.

Griego v. People, 19 P.3d 1, 9 (Colo. 2001) (“We consult definitions

contained in recognized dictionaries to determine the ordinary

meaning of words.”).

4 Neither party contests that Broomfield owns the property in
question, so the focus of our inquiry is whether the building is a
“residential property” for purposes of the HPA.

12
¶ 19 “Residential” plainly means using or designed for use as a

residence. See Webster’s Third New International Dictionary 1931

(2002) (defining residential as “used, serving, or designed as a

residence or for occupation by residents”). “Residence,” in turn,

plainly means a structure where people live. See Black’s Law

Dictionary 1502 (10th ed. 2014) (defining residence as “[t]he place

where one actually lives,” a “dwelling,” and a “house or other fixed

abode”); see also The American Heritage Dictionary of the English

Language 1483 (4th ed. 2000) (defining residential as “[o]f, relating

to, or having residence,” or “[o]f, suitable for, or limited to

residences,” and defining residence as “[t]he place in which one

lives; a dwelling,” or “[t]he act or a period of residing in a place”).

¶ 20 Additionally, although CDARA does not define “residential

property,” it defines “commercial property” as “property that is

zoned to permit commercial, industrial, or office types of use.”

§ 13-20-802.5(4), C.R.S. 2016. We glean from this definition that

the legislature considers a property’s zoning relevant to its intended

purpose. Anderson v. Longmont Toyota, Inc., 102 P.3d 323, 327

(Colo. 2004) (“[W]e read the statute as a whole and, if possible,

construe its terms harmoniously . . . .”). Here, it is undisputed that

13
the building project was part of the fourth amendment to the

MidCities Planned Unit Development (P.U.D.) Plan and Preliminary

Plat and that the building was specifically designed for multi-family

residential use, including senior assisted and independent living

residences. Moreover, the seventh amendment to the MidCities

P.U.D. confirmed that the property was zoned for residential uses

only, including senior housing.

¶ 21 Further, in the context of property tax law, the legislature and

the Colorado Constitution define “residential real property” as all

residential dwelling units and the land they are situated upon,

excluding hotels and motels. § 39-1-102(14.5), C.R.S. 2016; see

also Colo. Const. art. X, § 3(1)(b). Indeed, this court has

consistently interpreted “residential” to mean for the purposes of

living or dwelling. Houston v. Wilson Mesa Ranch Homeowners

Ass’n, 2015 COA 113, ¶ 16; see also Jensen v. City & Cty. of

Denver, 806 P.2d 381, 385 (Colo. 1991) (“Apartments and

boarding/rooming houses used on a long term basis . . . properly

are included within the definition of residential property.”); Double D

Manor, Inc. v. Evergreen Meadows Homeowners’ Ass’n, 773 P.2d

14
1046, 1051 (Colo. 1989) (facility caring for disabled children is

considered residential property).

¶ 22 We conclude, therefore, from the consistent dictionary

definitions, the building’s zoning, other statutory definitions, and

decisions from this court, that the term “residential” is

unambiguous and means an improvement on a parcel that is used

as a dwelling or for living purposes. In reaching this conclusion, we

necessarily reject Brinkmann’s argument that the legislature’s

failure to define “residential property” renders that term ambiguous.

See Wisdom Works Counseling Servs., P.C. v. Colo. Dep’t of Corr.,

2015 COA 118, ¶ 38 (“But legislative failure to define a statutory

term does not necessarily make the statute ambiguous. This is

especially true where . . . the undefined term has a commonly

understood meaning.”) (citation omitted); Dillabaugh v. Ellerton, 259

P.3d 550, 552 (Colo. App. 2011) (stating that absence of statutory

definition does not create ambiguity if court can discern term’s

ordinary and common meaning).

¶ 23 Moreover, we are not persuaded by Brinkmann’s argument

that Phillips v. Monarch Recreation Corp., 668 P.2d 982 (Colo. App.

1983), or public policy requires a different result. To the contrary,

15
Phillips reinforces our conclusion that “[s]tatutory provisions may

not be modified by private agreement if doing so would violate the

public policy expressed in the statute.” Id. at 987.

¶ 24 Here, the building is used to house senior residents. Neither

Brinkmann nor the plaintiffs contest that the senior residents live

in the building or use it for any purpose other than ordinary living.

Instead, all parties agree that the building is used as a home for

senior residents. Moreover, the term “residential” in § 13-20-806(7)

is used to describe the property owned, not to limit its applicability

to any specific type of owner, whether an entity or a natural person.

¶ 25 Finally, we are not persuaded that Broomfield’s receipt of

rental income from the senior residents makes the building

“commercial property” because the “receipt of income does not

transform residential use of property into commercial use.”

Houston, ¶ 24. Accordingly, we conclude that the senior facility is

“residential property,” that Broomfield is a “residential property

owner,” and that the HPA applies.5

5 While we use “Broomfield” throughout this opinion to refer
collectively to both Sunrise Development, and Broomfield, here we
refer only to Broomfield in concluding that the HPA applies to it as
a residential property owner. Sunrise Development conceded in the

16
III. Application

¶ 26 Because the HPA applies, the limitation on the accrual of

claims contained in section 13.7 of the contract is void as a matter

of public policy, and the relevant statutory accrual of claims periods

apply. A claim in a civil action accrues “on the date both the injury

and its cause are known or should have been known by the exercise

of reasonable diligence.” § 13-80-108(1), C.R.S. 2016 (emphasis

added); see also Morrison v. Goff, 91 P.3d 1050, 1053 (Colo. 2004)

(applying § 13-80-108(1) to negligence claims). In contrast, under

CDARA, claims for construction defects generally accrue on the date

“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.” § 13-80-104(1)(b)(I) (emphasis

added). Accrual under CDARA, therefore, depends on the discovery

of the manifestation of the defect and not its cause. See United Fire

Grp. ex rel. Metamorphosis Salon v. Powers Elec., Inc., 240 P.3d 569,

573 (Colo. App. 2010) (holding that the building fire itself, not the

trial court that it was not a residential property owner and that the
HPA did not apply to it. We do not find otherwise.

17
discovery of the cause of the building fire — defective construction

— began the running of the statute of limitations). Once a CDARA

claim accrues, any action must be brought within two years under §

13-80-102(1). See § 13-80-104(1)(a).

¶ 27 However, CDARA does not govern all claims brought against

construction professionals. Indeed, the accrual language of § 13-

80-104(1)(b) “was never intended to limit claims for breach of

warranties to repair and replace.” Hersh Cos. v. Highline Vill.

Assocs., 30 P.3d 221, 225 (Colo. 2001). Instead, breach of warranty

claims accrue when the breach is discovered or in the exercise of

reasonable diligence should have been discovered under § 13-80-

108(6). Once a breach of warranty claim accrues, any action must

be brought within three years under § 13-80-101, C.R.S. 2016.

Hersh Cos., 30 P.3d at 225

¶ 28 Moreover, the scope of CDARA is limited to actions seeking the

recovery of damages for “‘[a]ny deficiency in the design, planning,

supervision, inspection, construction, or observation of

construction of any improvement to real property,’ or injury to

property or person caused by such deficiency.” Id. (quoting § 13-

80-104(1)(c)(I)-(III)). Thus, whether Broomfield’s breach of contract

18
claim falls within CDARA and accrues upon the discovery of the

physical manifestation of a defect under § 13-80-104(1)(b)(I) or

outside of CDARA and accrues upon the discovery of the defect

itself under § 13-80-108(6) depends on the nature of the allegations

in the complaint. See Hersh Cos., 30 P.3d at 224-25; see also § 13-

80-108(6) (“A cause of action for breach of any express or implied

contract, agreement, warranty, or trust shall be considered to

accrue on the date the breach is discovered or should have been

discovered by the exercise of reasonable diligence.”).

A. Breach of Contract

¶ 29 Broomfield’s amended complaint alleged that Brinkmann

failed “to perform the services for the Residential Project that were

the subject of the agreements.” Assuming, without deciding, that

the more restrictive accrual period of CDARA applies, we conclude

that Broomfield’s breach of contract claim accrued upon the

“physical manifestation of a defect.” The parties agree that the first

manifestation of a defect was the sewer flies that appeared in the fall

of 2012. Because Broomfield filed this action in July 2014 (summer

of 2014), we conclude it was timely under § 13-80-104(1)(a) and

19
section 13-80-102(1) and reverse the judgment entered on this

claim.

B. Breach of Warranty

¶ 30 Section 12.2.2 of the contract sets forth Brinkmann’s

obligations in addition to the general warranty and covers both

patent defects and latent defects6 that were not active or apparent

by reasonable inspection before the end of the warranty period.7 As

relevant here, the contract requires the owner to provide the

contractor with written notice of any non-compliant work “promptly

after discovery of the non-compliant condition.” The contract then

expands any applicable period by one year from the date the defect

is discovered to correct the non-compliant condition. Finally,

during this extended applicable period, the owner must give the

contractor the opportunity to make the correction, and the owner’s

failure to do so waives its rights to require correction of the work

and to make a claim for breach of warranty.

6 Because Broomfield alleged that all defects were latent in its
complaint, we address only that portion of the contract.
7 Though not at issue we note that § 13-80-104(1)(a), C.R.S. 2016,

would preclude any claims for latent defects discovered more than
six years after substantial completion of the property improvement.

20
¶ 31 Broomfield contends the trial court erred in precluding its

breach of warranty claim based on its failure to give Brinkmann an

opportunity to correct the alleged defects. It argues that the record

and all reasonable inferences from the record do not support the

court’s finding that all repair work was completed before

Brinkmann had an opportunity to correct the alleged defects and

that genuine issues of material fact concerning notice and repair

work remain. Brinkmann responds that it was not obligated to

repair and correct latent defects unless Broomfield provided

adequate notice of them. It reasons that because Broomfield did

not provide adequate notice of the defects before making its own

repairs, the trial court properly granted summary judgment. We

conclude that genuine issues of material fact remain concerning

whether Brinkmann was promptly notified of the latent defects and

was given an opportunity to correct any defective work and, thus,

that summary judgment was improper.

¶ 32 “The question of the existence of a warranty and whether that

warranty was breached is ordinarily one for the trier of fact.” Stroh

v. Am. Recreation & Mobile Home Corp. of Colo., 35 Colo. App. 196,

201, 530 P.2d 989, 993 (1975). As previously discussed, claims for

21
breach of warranty accrue upon the discovery of the defect under

§ 13-80-108(6). However, once accrued, these claims expire after

three years, under the statute of limitations period set forth in

section 13-80-101. Hersh Cos., 30 P.3d at 225-26.

¶ 33 In this case, the parties presented conflicting evidence about

whether the warranty was breached. Relying on the facts contained

in the sworn affidavit of Edward L. Fronapfel (Fronapfel affidavit),

the owner of SBSA, Broomfield argues that the latent defects were

not discovered until SBSA began excavating the site on May 3,

2013, and issued its notice of latent defects to Broomfield on

November 21, 2013. It asserts that its January 2014 notice to

Brinkmann to correct the defects was timely under the contract and

provided sufficient opportunity for Brinkmann to correct them.

¶ 34 On the other hand, Brinkmann argues that the warranty could

not have been breached because it was not given a reasonable

opportunity to correct the defects. In support, Brinkmann relies on

deposition testimony and on invoices issued to Broomfield by the

architecture and engineering firm Gobbell Hays Partners, Inc.

(GHP), indicating that some repair work occurred.

22
¶ 35 Our independent review of these invoices confirms that GHP

performed some repair work; however, they do not specify the type

of repair work done, or indicate whether such repairs related to the

latent defects alleged. Indeed, we note that Brinkmann’s May 12,

2014, letter, attributing the latent defects to soils expansion and

declining to conduct repairs, does not state that any repairs had

been completed before its March 2014 site visit. Because the date

on which each defect was discovered is disputed, and because

whether and on what dates any repairs were completed is disputed,

we conclude, viewing the facts and reasonable inferences in the

light most favorable to Broomfield, that factual disputes remain

concerning whether Brinkmann received prompt notice of the

defects under the contract and whether it had an opportunity to

correct its work. Accordingly, we reverse summary judgment on the

breach of warranty claim.

C. Negligence and Negligence Per Se

¶ 36 Broomfield contends that the trial court erred in concluding

that the negligence claims were time barred by the contract and §

13-80-102(1) and that it failed to establish that Brinkmann

performed design services. Brinkmann responds that summary

23
judgment was appropriate because the evidence offered by

Broomfield does not specifically link Brinkmann to the design

changes. Because we conclude these claims are not time barred,

and because the parties offered conflicting design services evidence,

we reverse the trial court’s summary judgment on them.

¶ 37 We first address the time-bar issue and note that the trial

court concluded, from the descriptions in the complaint, that the

twenty-seven defects alleged were “open and obvious” conditions of

the project — patent defects — and that the corresponding claims

accrued, under the contract, at the latest on May 15, 2009. Thus,

it reasoned the two-year statute of limitations under § 13-80-102(1)

ran on May 15, 2011, and barred the negligence claims.

¶ 38 Because we have concluded that the HPA applies, any

negligence claims accrued in the fall of 2012 when the sewer flies

were discovered. Broomfield’s July 2014 complaint, therefore, was

not time barred under § 13-80-102(1). Moreover, for the reasons

set forth in Part IV, infra, we conclude that genuine issues of

material fact remain concerning whether the alleged defects were

patent or latent.

24
¶ 39 Broomfield contends that Brinkmann was negligent in making

certain plumbing decisions when constructing the building and that

it unilaterally modified the design of the pipes beneath the building

in violation of the contract. In support, Broomfield relies on the

Fronapfel affidavit, which states that revisions to the design

drawings, including revisions to the plumbing, were made during

construction.

¶ 40 In contrast, Brinkmann asserts that it never engaged in design

activities. It relies on deposition testimony that the changes

described were to the “means and methods” of construction and not

to the design. Our review of this deposition excerpt reveals that the

change was a request to “shortcut the design,” and that Brinkmann

should have “withdrawn the request to deviate.” Viewing this

evidence in the light most favorable to Broomfield, as we must, we

conclude it creates a question of disputed fact about whether

Brinkmann engaged in extra-contractual design services and, if so,

whether Brinkmann was negligent. Fin. Assocs., Ltd. v. G.E.

Johnson Constr. Co., 723 P.2d 135, 138 (Colo. 1986) (“An issue of

fact may arise from the existence of conflicting permissible

inferences from evidence accepted as true.”). Accordingly, we

25
reverse summary judgment on the negligence and negligence per se

claims.

IV. Patent and Latent Defects

¶ 41 Because we conclude that the statutory accrual provisions

apply, the date of a defect’s discovery necessarily controls the date

the statute of limitations begins to run. Morrison, 91 P.3d at 1053

(stating that a limitations period begins to run upon accrual absent

tolling, which will delay the start of the limitations period). “The

point of accrual is usually a question of fact, but if the undisputed

facts clearly show when a plaintiff discovered or should have

discovered the damage or conduct, the issue may be decided as a

matter of law.” Gognat v. Ellsworth, 224 P.3d 1039, 1045 (Colo.

App. 2009) (quoting Murry v. GuideOne Specialty Mut. Ins. Co., 194

P.3d 489, 491 (Colo. App. 2008)), aff’d, 259 P.3d 497 (Colo. 2011).

“The critical inquiry of when an action accrues is knowledge of the

facts essential to the cause of action, not knowledge of the legal

theory upon which the action may be brought.” Id. (quoting Olson

v. State Farm Mut. Auto. Ins. Co., 174 P.3d 849, 854 (Colo. App.

2007)). Therefore, we must address Broomfield’s contention that

the record shows disputed issues of material fact as to whether the

26
defects are patent or latent. It contends that the Fronapfel affidavit

alone demonstrates facts that could support a finding that all of the

defects were latent. Brinkmann counters that because the word

“external” appears in many of the defects’ descriptions, the trial

court properly concluded that the majority of the defects were

patent.

¶ 42 In its written order, the trial court listed a portion of the

defects contained in the notice of claim and concluded that the

“vast majority” of the partial list of defects were readily observable.

It did not base this conclusion on any evidence in the record, but

instead on its own interpretation of the descriptions. In doing so,

the trial court mistakenly disregarded the Fronapfel affidavit, which

described different phases of excavation that revealed different

construction defects over a lengthy period of time. Moreover, the

trial court did not state which alleged defects were latent and which

were patent, leaving questions of fact unresolved.

¶ 43 Considering the evidence in the light most favorable to

Broomfield, a genuine issue of fact remains concerning whether the

alleged defects are patent or latent. And, it is the province of the

fact finder to make this determination. See Park Rise Homeowners

27
Ass’n v. Res. Constr. Co., 155 P.3d 427, 431 (Colo. App. 2006)

(“Applying the test of whether such defects were discoverable

through reasonable inspection by a home buyer to the eighteen

defect categories used by the HOA’s damages expert, several of

which were broken down into subcategories, the jury could, based

on its common knowledge and with a proper instruction, have

determined which defects were latent.”). Therefore, on remand, the

trier of fact should weigh the evidence and determine which defects

were patent and which were latent.

V. Conclusion

¶ 44 The judgment is reversed and the case is remanded for further

proceedings consistent with this opinion.

JUDGE ASHBY concurs.

JUDGE DAVIDSON specially concurs.

28
JUDGE DAVIDSON, specially concurring.

¶ 45 I agree with the result reached by the majority in Parts II.A,

II.B, III, IV, and V. I specially concur as to Part II.C, concerning the

interpretation of the Homeowner Protection Act of 2007 (HPA),

§§ 13-20-806(7), -807, C.R.S. 2016.

¶ 46 The HPA prohibits as against public policy certain contractual

limitations on the ability to enforce rights, remedies, and damages

in construction defect lawsuits. It was enacted “to preserve

Colorado residential property owners’ legal rights and remedies,”

and it applies to “claimants asserting claims arising out of

residential property.” § 13-20-806, C.R.S. 2016. If applicable, it

voids the limitations provisions at issue here.

¶ 47 I don’t dispute the majority’s plain language understanding of

“residential property,” as used in the HPA, to include the Broomfield

senior facility. I find ambiguity, however, from the use of the term

“homeowner” in the HPA’s title but “residential property owner” in

its text. Thus, unlike the majority, I find it difficult to discern solely

from plain language a clear and unambiguous legislative intent to

include commercial entities such as Broomfield in the scope of the

protections of the HPA.

29
¶ 48 The word “homeowner,” as referred to in the short title of the

HPA, most commonly indicates people who own the home in which

they reside. See The American Heritage Dictionary of the English

Language 840 (2000) (a homeowner is a person who owns the house

in which he or she lives); see also Webster’s Third New International

Dictionary 1082 (2002) (a home is a house occupied by a family).

Because nothing in the HPA requires a different understanding,

“residential property owner,” as used in the statute’s text, could be

read simply as a synonym of “homeowner.” See Frazier v. People,

90 P.3d 807, 811 (Colo. 2004) (“Although the title of a statute is not

dispositive of legislative intent, it is a useful aid in construing a

statute.”).

¶ 49 However, the term “residential property owner,” standing

alone, can be read more broadly to include anyone who owns

residential property, regardless of the type of owner or how the

property is used. See Houston v. Wilson Mesa Ranch Homeowners

Ass’n, 2015 COA 113, ¶ 17 (the particular use of residential

property may render the term ambiguous). Also, although used but

undefined in the HPA, the term “claimant” is expansively described

in other portions of the Construction Defect Action Reform Act

30
(CDARA) as any person who brings a claim. See § 13-20-802(5),

C.R.S. 2016.

¶ 50 With that uncertainty, and because Broomfield, the property

owner in this case, is a sophisticated commercial entity (and the

developer and the property owner are related business entities), I

hesitate to conclude, from the plain language alone, that the

legislature intended the protective scope of the HPA to extend to

Broomfield.

¶ 51 Certainly, the focus of the protections of the HPA is the

individual homeowner. See Taylor Morrison of Colo., Inc. v. Bemas

Constr., Inc., 2014 COA 10, ¶ 30; see also Shaw v. Baesemann, 773

P.2d 609, 611 (Colo. App. 1988) (legislative intent can be gleaned

from the problem addressed by the legislation).

¶ 52 In contrast with commercial entities that build and sell homes,

Colorado has recognized the policy need to protect the more

unsophisticated, less knowledgeable individuals who buy them.

See Cosmopolitan Homes, Inc. v. Weller, 663 P.2d 1041, 1045 (Colo.

1983). Similarly, Colorado courts have voided contractual liability

waiver clauses as against public policy when there has been

demonstrably unequal bargaining power between the parties. See

31
Boles v. Sun Ergoline, Inc., 223 P.3d 724, 728 (Colo. 2010) (voiding a

waiver as against public policy when one party had substantially

more bargaining power); see also Huizar v. Allstate Ins. Co., 952

P.2d 342, 344 (Colo. 1998) (recognizing the policy need to protect

individuals with disparity in bargaining power in the insurance

context); Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784 (Colo.

1989) (Exculpatory agreements are void when one party is “at such

obvious disadvantage in bargaining power that the effect of the

contract is to put him at the mercy of the other’s negligence.”)

(citation omitted); Estate of Harry v. Hawkeye-Sec. Ins. Co., 972

P.2d 279, 281 (Colo. App. 1998) (Parties to an insurance contract

“cannot contractually abrogate statutory requirements reflecting the

public policy of the state.”); cf. Chadwick v. Colt Ross Outfitters, Inc.,

100 P.3d 465, 469 (Colo. 2004) (upholding a waiver between a

commercial entity and an individual where the individual was

“competent and educated”).

¶ 53 Based on this authority, I understand the HPA as a

codification of the policy principles underlying these cases.

Specifically, as it concerns the parties to a purchase and sale of

residential property, contractual waiver clauses are void as against

32
public policy because of the imbalance of knowledge, sophistication,

and bargaining power between them. See People v. Zapotocky, 869

P.2d 1234, 1240 (Colo. 1994) (noting assumption of legislative

awareness of prior decisional law on the subject under

consideration).

¶ 54 Conversely, I find little authority upon which to imply

legislative intent, as a matter of public policy, to extend such

statutory protections to, or abrogate contractual rights between,

knowledgeable and sophisticated commercial entities with equal

bargaining power. Indeed, the opposite is true. See BRW, Inc. v.

Dufficy & Sons, Inc., 99 P.3d 66, 72 (Colo. 2004) (noting the trend in

Colorado and elsewhere to protect the ability of the parties to

negotiate the allocation of risk and reward that is associated with a

construction project); Rhino Fund, LLLP v. Hutchins, 215 P.3d 1186,

1191 (Colo. App. 2008) (Colorado courts will uphold an exculpatory

provision in a contract between two “business entities that have

negotiated their agreement at arm’s length.”). “Until fully and

solemnly convinced that an existent public policy is clearly revealed,

a court is not warranted in applying that principle to void a

contract.” Superior Oil Co. v. W. Slope Gas Co., 549 F. Supp. 463,

33
468 (D. Colo. 1982), aff’d, 758 F.2d 500 (10th Cir. 1985); see also

Stanley v. Creighton Co., 911 P.2d 705, 708 (Colo. App. 1996) (“[A]

public policy that protects tenants from a waiver clause is more

compelling here, under a form residential lease, than it would be

under a commercial lease.”).

¶ 55 In addition, to the extent the statutory abrogation of certain

contractual rights between sellers and purchasers of homes as

against public policy is in derogation of the common law freedom to

contract, I would think that the class of persons intended to benefit

from the HPA’s protections (viz., “residential property owners”)

should be construed narrowly — that is, to exclude commercial

entities such as Broomfield. See § 2-4-211, C.R.S. 2016; Van

Waters & Rogers, Inc. v. Keelan, 840 P.2d 1070, 1076 (Colo. 1992)

(“[S]tatutes in derogation of the common law must be strictly

construed, so that if the legislature wishes to abrogate rights that

would otherwise be available under the common law, it must

manifest its intent either expressly or by clear implication.”).

¶ 56 In this context, I cannot conclude simply from the plain

meaning of “residential property owner” that the legislature

intended to extend the protections of the HPA to a sophisticated,

34
commercial entity, such as Broomfield. Thus, I find examination of

the legislative history of the HPA to be appropriate and, here,

instructive.

¶ 57 The hearings in both the House and Senate confirm that the

overwhelming impetus for the bill was the plight of the individual

homeowner — the problem was that homeowners were being forced

to waive important rights in order to enter into a contract to buy a

house. See, e.g., Hearings on H.B. 07-1338 before the Senate Bus.,

Labor & Tech. Comm., 66th Gen. Assemb., 1st Sess. (Apr. 3, 2007)

(statement of Sen. Viega) (“You either sign a contract as is or you

don’t buy a house.”).

¶ 58 However, the full discussions in both the House and Senate

hearings show that while the effect of the proposed legislation was

subject to heated debate, so long as it involved a contract for the

sale of “residential property,” the type or status of the purchaser to

be protected in that transaction was not.

¶ 59 Notably, the testimony, pro and con, included lengthy

discussion of the impact of the proposed bill on the development

and sale of numerous types of mixed-use or multi-use properties,

including affordable housing projects and senior living facilities

35
such as at issue here. Although these types of purchasers typically

are not situated like vulnerable homeowners “buying and

purchasing the single largest investment in their lives,” Hearings on

H.B. 07-1338 before the Senate Bus., Labor & Tech. Comm., 66th

Gen. Assemb., 1st Sess. (Apr. 3, 2007) (statement of Sen. Viega),

the absence of any voiced concern as to the nature, status, or scope

of protected homeowners was striking. To the contrary, it was

assumed as a given in the discussions that a purchaser of

“residential property” included not just an individual homeowner,

but also the (more sophisticated and far less vulnerable) purchaser

of mixed-use and multi-family properties.

¶ 60 Moreover, I note that there was no dissent to testimony that

certain provisions of form American Institute of Architects

residential purchase and sale contracts, such as those at issue

here, would be void as against public policy under the proposed

legislation. Again, there was no discussion or debate limiting the

type or nature of individual or entity benefiting from this protection

on the purchaser side of the transaction.

¶ 61 Importantly, then, the hearings put the legislature on notice

that as it concerned a contract to purchase residential property, the

36
protections of the proposed bill extended significantly beyond the

individual home buyer. Yet, the General Assembly did not adjust or

change any language in response.

¶ 62 Therefore, like the majority, I conclude that the legislature

intended the HPA to void the limitations waiver in the contract here,

regardless of the fact that the homeowner is a sophisticated

commercial entity. But, unlike the majority, I determine this

legislative intent not only from the statutory language, but also

from examination of its legislative history. See Farmers Ins. Exch. v.

Bill Boom, Inc., 961 P.2d 465, 469-70 (Colo. 1998) (stating that if

statutory meaning is unclear, it is appropriate to seek the intent of

the legislature by examining the legislative history as well as the

social context in which the underlying bill was passed).

37
APPENDIX 1
12.2.2 AFTER FINAL COMPLETION

In addition to the Contractor’s obligation under Paragraph 3.5,

upon receipt of written notice from the Owner, the Contractor shall

promptly correct any Work that is found, within the applicable

period, not to be in compliance with the requirements of the

Contract Documents. Except for latent defects, the applicable

period shall be a period of one year after the date of Final

Completion of the Work or for a period of one year after the date of

completion of any corrective work, whichever is longer, or by terms

of an applicable special warranty required by the Contract

Documents. If any latent defect or deficiency which was not active

or apparent by reasonable inspection during the course of

construction or before Final Completion or before the end of the

warranty period is discovered, then the applicable period shall be

extended by one year after the discovery of such latent defect. The

contractor shall correct all non-compliant Work promptly unless the

Owner has previously given the Contractor an express written

acceptance of such condition. The Owner shall give such notice to

correct non-compliant Work promptly after discovery of the non-
compliant condition. During the applicable period for correction of

the work, if the Owner fails to notify the Contractor and give the

Contractor an opportunity to make the correction, the Owner

waives the rights to require correction by the Contractor and to

make a claim for breach of warranty. If the contractor fails to

correct nonconforming Work within a reasonable time during that

period after receipt of notice from the Owner or Architect, the

Owner may correct it in accordance with Paragraph 2.4.
APPENDIX 2
13.7 COMMENCEMENT OF STATUTORY LIMITATION

PERIOD

.1 Before Substantial Completion. As to acts or failures to act

occurring prior to the relevant date of substantial Completion, any

applicable statute of limitations shall commence to run and any

alleged cause of action shall be deemed to have accrued in any and

all events not later than such date of Substantial Completion;

.2 Between Substantial Completion and Final Certificate for

Payment. As to acts or failures to act occurring subsequent to the

relevant date of Substantial Completion and prior to the issuance of

the final Certificate for Payment, any applicable statute of

limitations shall commence and run and any alleged cause of action

shall be deemed to have accrued in any and all events not later

than the date of issuance of the final Certificate for Payment and

.3 After Final Certificate for Payment. As to acts or failures to

act occurring after the relevant date of issuance of the final

Certificate for Payment, any applicable statute of limitations shall

commence to run and any alleged cause of action shall be deemed

to have accrued in any and all events not later than the date of any

act or failure to act by the Contractor pursuant to any Warranty
provided under Paragraph 3.5, the date of any correction of the

Work or failure to correct the Work by the Contractor under

paragraph 12.2 or the date of actual commission of any other act or

failure to perform any duty or obligation by the Contractor or

Owner, whichever occurs last.
APPENDIX 3
Defects Identified by SBSA:

(a) GEOTECHNICAL
(i) Insufficient Design of Void Space
(ii) Differential Movement of Foundation
(b) FOUNDATION SYSTEM
(i) Non-Compliant Construction of Void Space below
Structural Slab-On-Void and Grade Beams
(c) GRADING AND DRAINAGE
(i) Non-Compliant Slope to Drain from Foundation
(ii) Non-Compliant Exterior Drains
(iii) Non-Compliant Drainage of West Courtyard
(iv) Non-Compliant Clearance to Grade
(v) No Perimeter Drain Provided for AL Wing
(vi) Non-Compliant Perimeter Drain for IL Wing
(vii) Non-Compliant Irrigation Near Building
(d) CONCRETE FLATWORK
(i) Differential Movement of Flatwork
(ii) Non-Compliant Isolation
(e) STREETS AND ROADWAYS
(i) Differential Movement of Driveways and
Roadways
(f) FAÇADE (EXTERIOR CLADDING AND SEALANTS)
TYPE 1 – LAP SIDING AND TRIM
(i) Non-Compliant Clearance to Grade
(ii) Non-Compliant Clearance to Hard Surfaces
(iii) Non-Compliant Joint Provisions at Dissimilar
Materials
(g) FAÇADE (EXTERIOR CLADDING AND SEALANTS)
TYPE 2 ·STONE VENEER
(i) Non-Compliant Clearance to Grade
(ii) Non-Compliant Clearance to Bard Surfaces
(iii) Non-Compliant Joint Provisions at Dissimilar
Materials
(h) MOISTURE MANAGEMENT SYSTEM (BARRIERS,
FLASHINGS, DRAINAGE, ETC.)
(i)Obstructed Weep Mechanism at Horizontal
Terminations
(i) FENESTRATIONS (WINDOWS. DOORS, CURTAIN
WALLS, ETC.)
(i) The windows must be integrally tied into the
Weather Resistive Barrier and related moisture
management materials to perform properly.
(j) ROOFING SYSTEM TYPE 1 - ASPHALT SHINGLES
(i) Non-Compliant Diverter Flashings
(ii) Non-Compliant Downspout Extension
(iii) Non-Compliant Discharge of Emergency
Overflow Drains
(k) ELEVATED DECKS, BALCONIES, OR WALKWAYS
(i) Non-Compliant Waterproofing at Exterior Decks
(ii) Non-Compliant Waterproofing of West Courtyard
(l) MECHANICAL, ELECTRICAL, PLUMBING
(i) Clearance for Under-Slab Piping Not Provided
(ii) Non-Compliant Penetrations at Grade-Beams
(iii) Non-ventilated or Conditioned Spaces below the
Foundation Slab
(iv) Improper Isolation of Mechanical and Electrical
Systems