e Village Homeowners Ass'n, Inc. v. Brooktree Village, LLC

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
November 19, 2020

2020COA165

No. 19CA1635, Brooktree Village Homeowners Ass’n, Inc. v
Brooktree Village, LLC — Construction Law — Breach of
Implied Warranty; Real Property — Common Interest
Communities — Powers of Unit Owners’ Association —
Litigation or Administrative Proceedings — Standing

A division of the court of appeals holds that a homeowner’s

association has standing to assert, on behalf of its members,

implied warranty claims arising from construction defects in the

common interest community’s common areas without first

obtaining assignments of claims from the homeowners. In addition,

the division considers for the first time in Colorado whether a

homeowner’s association may assert such implied warranty claims

against a successor developer and builder, even though the

homeowner’s association did not acquire the common areas from

the successor developer, the successor developer and builder never
owned the common areas, and fewer than all of the homeowner’s

association’s members directly purchased their townhomes from

the successor developer. The division concludes that a

homeowner’s association may assert such claims.
COLORADO COURT OF APPEALS 2020COA165

Court of Appeals No. 19CA1635
El Paso County District Court No. 17CV31301
Honorable Timothy Schutz, Judge

Brooktree Village Homeowners Association, Inc., a Colorado non-profit
corporation,

Plaintiff-Appellee,

v.

Brooktree Village, LLC, a Colorado limited liability company, and Rivers
Development, Inc., a Colorado corporation,

Defendants-Appellants.

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE LIPINSKY
Navarro and Tow, JJ., concur

Announced November 19, 2020

Kerrane Storz, P.C., Heidi E. Storz, Michael J. Lowder, Rebekah B. Watada,
Broomfield, Colorado, for Plaintiff-Appellee

Lorber, Greenfield & Polito, LLP, Thomas F. Olsen, Louis W. Horowitz, Denver,
Colorado, for Defendants-Appellants
¶1 The Brooktree Village Townhomes (the development) had more

than its share of troubles. Its original owner, Combest

Construction, sought protection under the Bankruptcy Code after it

had completed and sold several townhomes to residential

purchasers, but before it could complete construction at the

development. After Combest’s lender took possession of the

development, the lender conveyed the common areas to Brooktree

Village Homeowners Association, Inc. (Association), the

development’s homeowner’s association, which Combest had

formed.

¶2 A second developer, Brooktree Village, LLC (Developer), later

acquired the remaining undeveloped portions of the development,

other than the common areas. A construction company affiliated

with Developer, Rivers Development, Inc. (Builder), completed

construction of the development. Developer sold all the newly

constructed townhomes to individual homeowners.

¶3 After discovering construction defects throughout the

development, Association sued Developer and Builder, asserting

that portions of Builder’s construction work were defective.

Association sought damages for the cost of repairing the

1
construction defects in the common areas, as well as the cost of

repairing the damage in one of the townhomes caused by

construction defects in the common areas.

¶4 Association asserted the claims on behalf of itself and its

member homeowners, pursuant to section 38-33.3-302(1)(d), C.R.S.

2020, under theories of breach of implied warranty, negligence, and

negligence per se.

¶5 At the conclusion of an eight-day trial, a jury found Developer

and Builder liable for breach of implied warranty and negligence

and awarded Association $1,850,000 in damages. (The trial court

combined Association’s negligence and negligence per se claims.)

¶6 The jury also found that Association was responsible for ten

percent of the damages under a comparative negligence theory. But

the jury verdict form did not break down Association’s damages

between its breach of implied warranty and negligence claims. The

trial court awarded the entire $1,850,000 to Association on the

breach of implied warranty claim, reasoning that comparative

negligence does not apply to breach of implied warranty claims.

¶7 On appeal, Developer and Builder argue that the trial court

erred in entering the judgment against them. Among other

2
arguments, Developer and Builder raise an issue of first impression

in Colorado — whether Association had the right to assert implied

warranty claims against them even though Association had not

acquired the common areas from Developer, Developer never owned

the common areas, and a majority of Association’s members had

not purchased their townhomes from Developer.

¶8 We hold that Association had standing to assert the implied

warranty claims. Although we also hold that the trial court erred in

admitting evidence regarding damage in one of the townhomes, we

conclude that the error was harmless. Therefore, we affirm the

judgment.

I. Background

¶9 The development is a residential common interest community

as that term is defined in the Colorado Common Interest Ownership

Act (CCIOA). See § 38-33.3-103(8), C.R.S. 2020. Combest

established Association under the CCIOA. The members of

Association are the owners of the townhomes at the development.

Association owns and manages the common areas of the

development for the use and benefit of its members pursuant to the

3
Declaration of Covenants, Conditions, Restrictions, and Easements

of Brooktree Village Townhomes (the Declaration).

¶ 10 According to the Declaration, the development was to consist

of fourteen buildings housing fifty-two townhomes. Before going

out of business, Combest completed the grading at the development

site. Combest, however, only constructed two of the buildings,

consisting of seven townhomes, and approximately half of the

roadways. Combest sold those seven townhomes to residential

purchasers in 2007 and 2008.

¶ 11 After Combest filed for bankruptcy protection, Combest’s

lender took possession of the development and conveyed the

common areas to Association. The undeveloped areas of the

development remained untouched until 2012, when Developer

acquired the entirety of the development other than the common

areas and the seven townhomes that Combest had built and sold.

¶ 12 Builder resumed construction at the development, following

Combest’s original construction plans and the scope of the

development described in the Declaration. Builder formed

Developer to market and sell the townhomes that Builder built.

Developer contracted with Builder to construct the remaining twelve

4
buildings, finish the roadways, and complete the remaining work at

the common areas of the development. Those twelve buildings

consisted of forty-five townhomes.

¶ 13 By 2015, Builder completed construction at the development.

Developer sold the forty-five townhomes to residential purchasers in

2012 and 2013.

¶ 14 As early as 2012, owners of the newly constructed townhomes

began reporting construction defects to Builder. Within the

one-year warranty period specified in their purchase agreements

with Developer and Builder, several townhome owners presented

Builder with claims for repairs caused by those construction

defects.

¶ 15 Association served Developer and Builder with a notice of

claim pursuant to section 13-20-803.5, C.R.S. 2020, on behalf of its

members and itself in February 2017. After it was unable to resolve

its dispute with Developer and Builder regarding the construction

defects described in the notice of claim, Association filed suit “on

behalf of itself and on behalf of its members” in May 2017.

¶ 16 The construction defects described in Association’s complaint

primarily consisted of improper site grading and drainage across

5
the development, which, according to Association, caused water

accumulation and intrusion, concrete flatwork settling and

cracking, and heaving and movement of concrete basement slabs,

among other problems. Association sought damages in the amount

of the cost of repairing the construction defects in the common

areas. In addition, Association sought damages to repair the

damage to one townhome — that of owner Halley Rumfelt —

attributable to construction defects in the common areas.

¶ 17 As noted above, at the conclusion of trial, the jury awarded

$1,850,000 in damages against Developer and Builder on

Association’s implied warranty and negligence claims.

¶ 18 On appeal, Developer and Builder allege six errors by the trial

court:

¶ 19 First, allowing Association to pursue claims for breach of

implied warranty against Developer and Builder and, relatedly,

providing jury instructions and a verdict form that misstated the

law of breach of implied warranty and did not allow the jury to

determine the threshold question of whether Association could

assert implied warranty claims even though not all of its members

had implied warranties from Developer and Builder.

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¶ 20 Second, not reducing the jury’s damage award by the

percentage of Association’s comparative negligence.

¶ 21 Third, declining to instruct the jury on the statute of repose

and statute of limitations.

¶ 22 Fourth, declining to allow evidence or jury instructions on

whether Association could assert claims on behalf of individual

townhome owners without first obtaining assignments of claims

from them.

¶ 23 Fifth, allowing Association to introduce “salacious” and

irrelevant evidence.

¶ 24 Sixth, allowing testimony referring to nonparties.

II. Analysis

A. Implied Warranty

¶ 25 Developer and Builder contend that the trial court erred by

allowing Association to pursue implied warranty claims against

them on behalf of the members of Association. Developer and

Builder relatedly contend that the court erred by giving jury

instructions and a verdict form that did not correctly state the law

of implied warranty. We are not persuaded.

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1. Association’s Standing to Assert Implied Warranty Claims on
Behalf of Its Members

¶ 26 Developer and Builder assert that the trial court erred by

allowing Association to pursue implied warranty claims against

them for construction defects in the common areas because (1)

Builder did not sell any of the townhomes at the development and

(2) neither Developer nor Builder ever owned the common areas and

fewer than half of Association’s members purchased townhomes

from Developer. Developer and Builder further argue that, at most,

any damage award to Association must be reduced by multiplying

the amount of the award by the percentage of townhome owners in

the development who purchased their townhomes directly from

Developer (the direct purchasers).

¶ 27 Whether Association may bring implied warranty claims for

defects in the common areas on behalf of its members is a question

of law that we review de novo. Klingsheim v. Cordell, 2016 CO 18,

¶ 14, 379 P.3d 270, 272; see Forest City Stapleton Inc. v. Rogers,

2017 CO 17, ¶¶ 6, 15-16, 393 P.3d 487, 492.

¶ 28 Colorado law reads an implied warranty of workmanlike

construction and fitness for habitability into “agreements between

8
builder-vendors and purchasers for the sale of newly constructed

buildings . . . .” Carpenter v. Donohoe, 154 Colo. 78, 83-84, 388

P.2d 399, 402 (1964). The implied warranty “arises from the

contractual relation” between an entity that constructs and sells a

newly constructed building and the purchaser. Cosmopolitan

Homes, Inc. v. Weller, 663 P.2d 1041, 1045 (Colo. 1983). “Proof of a

defect due to improper construction, design, or preparation is

sufficient to establish liability in the builder-vendor” under an

implied warranty theory. Id.

¶ 29 Because only persons in privity of contract with a builder or

seller have implied warranties, the class of purchasers entitled to

the protection of an implied warranty is limited to first purchasers.

Id. Subsequent purchasers are not in privity with the builder or

seller and, for this reason, cannot assert implied warranty claims.

H.B. Bolas Enters., Inc. v. Zarlengo, 156 Colo. 530, 535, 400 P.2d

447, 450 (1965).

¶ 30 Acting on behalf of its members and itself, Association sued

Developer, as the vendor that sold townhomes at the development

starting in 2012, and Builder, as the entity that constructed

townhomes and common areas at the development during that

9
time. See Utz v. Moss, 31 Colo. App. 475, 478, 503 P.2d 365, 367

(1972).

a. The Direct Purchasers Received Implied Warranties from
Builder

¶ 31 Developer and Builder contend that Builder cannot be held

liable for breach of implied warranty, even to the direct purchasers

whose townhomes Builder constructed, because the direct

purchasers bought their townhomes from Developer and not from

Builder. Thus, Developer and Builder argue, there is no contractual

privity between the direct purchasers and Builder. And, as noted

above, only persons in privity with a builder or seller can assert

implied warranty claims against them.

¶ 32 First, we are not persuaded there is no privity between the

direct purchasers and Builder. Both Developer and Builder signed

the direct purchasers’ purchase agreements. In those agreements,

Developer and Builder provided an express warranty and

“Disclosures and Releases” to the direct purchasers.

¶ 33 Second, even if Builder had not been a party to the direct

purchasers’ purchase agreements, Builder constructed their

townhomes. “[T]he absence or presence of privity of contract, in the

10
technical meaning of that term, is not dispositive of all cases.” Id.

at 478, 503 P.2d at 367. The purpose of the privity requirement is

to protect vendors from claims by “buyers who are not within the

class of those reasonably intended to be protected when the product

was offered for sale.” Id. Where a builder “knows, or should know,

that the intended purchaser and first occupant will not be [a] realty

company, but rather the initial home owner, the implied warranty of

workmanlike construction extends to that first purchaser.” Id.

¶ 34 Here, Builder knew the townhomes it constructed at the

development would be sold to individual owners. Builder created

Developer primarily to market and sell the townhomes that Builder

constructed at the development.

¶ 35 The relationship between Developer and Builder underscores

why Builder can be held liable under an implied warranty theory.

To allow Builder to shirk its responsibilities under implied

warranties simply because an intermediary (here, an affiliate of

Builder) conveyed the homes to the direct purchasers would be

illogical, would be contrary to Utz, and could leave the direct

purchasers without a remedy against the entity responsible for the

defective construction.

11
¶ 36 Granted, even if they could not assert implied warranty claims

against Builder, the direct purchasers could assert negligence

claims against Builder. But claims for negligent construction are

more difficult to prove than implied warranty claims. Negligence

claims “require[] that a builder or contractor be held to a standard

of reasonable care in the conduct of its duties to the foreseeable

users of the property.” Cosmopolitan Homes, 663 P.2d at 1045. A

plaintiff in a negligence case involving construction defects “must

establish defects in workmanship, supervision, or design as a

responsibility of the individual defendant. Proof of defect alone is

not enough to establish the claim. Foreseeability limits the scope of

the duty, and the passage of time following construction makes

causation difficult to prove.” Id.

¶ 37 In contrast, the warranty of habitability “has been likened to

strict liability for construction defects, and proof of a defect due to

improper construction, design, or preparations is sufficient to

establish liability in the builder-vendor.” Wall v. Foster Petroleum

Corp., 791 P.2d 1148, 1150 (Colo. App. 1989).

¶ 38 For these reasons, Builder provided implied warranties to the

direct purchasers.

12
b. Association Has Standing to Pursue Implied Warranty Claims
for Construction Defects in the Common Areas Even Though
Neither Developer Nor Builder Ever Owned the Common Areas
and Not All Members of Association Purchased Townhomes
from Developer

¶ 39 The facts in this case are more complex than those in a typical

construction defects case. In many construction defects cases, the

developer of the common interest community directly conveyed the

individual units to the original owners and directly conveyed the

common areas to the homeowner’s association. See Amy Brimah &

Suzanne Leff, Common Interest Conundrums 2,

https://perma.cc/D3DG-EX5Q. In these cases, the developer is in

privity with the individual purchasers and the homeowner’s

association. See Heritage Vill. Owners Ass’n, Inc. v. Golden Heritage

Invs., 89 P.3d 513, 514 (Colo. App. 2004).

¶ 40 Here, the original developer sought bankruptcy protection, its

lender took possession of the development, and the lender conveyed

the common areas to Association. Although Builder completed

construction at the development, neither it nor Developer ever

owned the common areas. Additionally, at the time of Association’s

lawsuit, only twenty-three of the fifty-two townhome owners in the

development were direct purchasers; the remaining twenty-nine

13
owners acquired their townhomes from Combest or previous

townhome owners.

¶ 41 We agree with Developer and Builder that they are not in

privity with Association and, thus, Association did not receive

implied warranties from them. We also agree with Developer and

Builder that they are not in privity with the twenty-nine townhome

owners who were not direct purchasers and who, therefore, did not

receive implied warranties from them.

¶ 42 But the twenty-three direct purchasers bought their

townhomes, which Builder constructed, directly from Developer.

Moreover, both Developer and Builder are parties to the direct

purchasers’ purchase agreements. The direct purchasers are thus

in privity with, and obtained implied warranties of workmanship

and habitability from, Developer and Builder. See Cosmopolitan

Homes, 663 P.2d at 1045.

¶ 43 In addition, the direct purchasers, like all of Association’s

members, not only own their individual townhomes, but, as

documented in their deeds, have easement rights to use the

common areas. Consequently, a construction defect located

14
anywhere in the common areas affects the rights of every owner in

the development, including the direct purchasers.

¶ 44 Under the CCIOA, a homeowner’s association has standing to

“[i]nstitute, defend, or intervene in litigation or administrative

proceedings in its own name on behalf of itself or two or more unit

owners on matters affecting the common interest community.”

§ 38-33.3-302(1)(d). Thus, a homeowner’s association has standing

to bring breach of implied warranty claims on behalf of itself and its

members to obtain redress for construction defects in the common

areas of the community. Heritage Vill., 89 P.3d at 515. (Although

Heritage Village specifically addressed claims for construction

defects impacting “windows, decks, and floor slabs” of individual

units, it also said that the homeowner’s association had standing to

assert claims for construction defects in the common areas on

behalf of the homeowners. See id. at 514-15. Even if that language

is dictum, it is a correct statement of the law and we apply it here.)

¶ 45 In addition, because “[u]nder the CCIOA, individual units are a

part of the ‘common interest community,’” a homeowner’s

association may bring a claim for breach of implied warranty to

redress construction defects in individual units. Yacht Club II

15
Homeowners Ass’n, Inc. v. A.C. Excavating, 94 P.3d 1177, 1180

(Colo. App. 2003). This is especially true where, as here, the

damage in an individual unit is attributable to defectively

constructed common areas.

¶ 46 For these reasons, the lack of privity between Association and

Developer and Builder does not bar Association’s implied warranty

claims. Under section 38-33.3-302(1)(d), Association may assert

implied warranty claims for construction defects in the common

areas, regardless of whether the resulting damage appeared in the

common areas or an individual townhome, based on the direct

purchasers’ implied warranty rights and rights to use the common

areas. See Heritage Vill., 89 P.3d at 515.

c. Association May Recover Damages for Repair of All the
Construction Defects in the Common Areas for Which
Developer and Builder Are Responsible

¶ 47 Developer and Builder argue that, at most, Association can

recover damages for repairing that percentage of the defectively

constructed common areas representing the percentage of total

townhomes at the development owned by the direct purchasers.

But it would be unreasonable to discount the damages awardable

for the construction defects in the common areas by the percentage

16
of townhomes not owned by direct purchasers. Such an

apportionment would mean that Association could only recover

damages for remediation of twenty-three fifty-seconds

(approximately forty-four percent) of the construction defects in the

common areas.

¶ 48 Repair of less than half of the construction defects in the

common areas would not provide the direct purchasers (or the other

townhome owners for that matter) with a meaningful remedy and

would allow Developer and Builder to shirk their responsibility for

remediating all the construction defects in the common areas for

which they are responsible. For these reasons, a remedy resulting

in repair of only a fraction of the defects in the common areas would

be inadequate. But this would be the result if we accepted

Developer and Builder’s argument that Association cannot assert

implied warranty claims to recover the cost of remediating all the

construction defects in the common areas.

¶ 49 Thus, we hold that, under the CCIOA, a homeowner’s

association may recover from a successor developer or builder the

entire cost of remediating construction defects in common areas

where (1) the defects are attributable to the successor developer or

17
builder; (2) two or more of the association’s members purchased

their homes directly from the successor developer or builder; and

(3) those members have rights to use the common areas — even if

the successor developer or builder never owned the common areas.

2. Jury Instructions and Verdict Form

¶ 50 Developer and Builder contend that the trial court’s jury

instructions and verdict form “skipped over an essential element of

the cause of action . . . [ — ] whether [an implied] warranty existed

in the first place.” We are not persuaded.

¶ 51 A trial court has a duty to correctly instruct the jury on

matters of law. Bedor v. Johnson, 2013 CO 4, ¶ 8, 292 P.3d 924,

926. “To determine whether the trial court has performed this duty,

we first review de novo the jury instruction at issue to assess

whether the instruction correctly states the law.” Id. A court

commits error by giving an incorrect instruction “unless the error is

cured by the instructions as a whole.” Waneka v. Clyncke, 134

P.3d 492, 494 (Colo. App. 2005), aff’d, 157 P.3d 1072 (Colo. 2007).

¶ 52 If the instruction is correct, we review the court’s decision to

give a jury instruction for an abuse of discretion. Bedor, ¶ 8, 292

P.3d at 926. While pattern jury instructions are not law, they do

18
“carry weight and should be considered by a trial court.” People v.

Garcia, 2012 COA 79, ¶ 50, 296 P.3d 285, 292. We review a

preserved objection to an erroneous jury instruction for harmless

error. Waneka, 134 P.3d at 494.

¶ 53 The trial court modeled its breach of implied warranty jury

instructions on the pattern jury instructions. The breach of implied

warranty jury instructions in this case specifically stated that, to

find Developer or Builder liable for breach of implied warranty, the

jury must find that (1) they “entered into a contract with

[Association’s] members to construct a residence and related

common area improvements which it sold to [Association’s]

members”; (2) Developer or Builder “gave possession of the

residence and related common areas to [Association’s] members”;

and (3) the residence or common areas did not comply with the

warranties implied by law.

¶ 54 Developer and Builder are correct that the questions on the

verdict form regarding their liability on Association’s implied

warranty claim asked whether they “breached any of the implied

warranties,” but did not first ask whether such an implied warranty

existed. However, in the absence of evidence of jury bias, we may

19
presume that the jury understood and heeded the trial court’s

instructions. Vaccaro v. Am. Fam. Ins. Grp., 2012 COA 9M, ¶ 29,

275 P.3d 750, 758 (citing People v. Ibarra, 849 P.2d 33, 39 (Colo.

1993)). Logically, the jury could not have answered “yes” to the

questions unless it also found that Developer or Builder owed

duties under implied warranties. For this reason, we must assume

that, in answering “yes” to these questions, the jury first found the

existence of a contract and, thus, implied warranties.

B. The Trial Court Did Not Err by Entering Judgment for the Full
Amount of Association’s Damages

¶ 55 Developer and Builder contend that the trial court erred by not

reducing the jury’s damage award by ten percent to reflect

Association’s comparative negligence. We disagree.

¶ 56 “The amount of damages to which a plaintiff is entitled is a

matter within the sole province of the jury.” Nichols v. Burlington N.

& Santa Fe Ry. Co., 148 P.3d 212, 217 (Colo. App. 2006). Thus,

“[w]hen possible, trial courts must give effect to a jury’s verdict.” Id.

While, pursuant to section 13-21-111(1), C.R.S. 2020, damages

awarded for negligence “shall be diminished in proportion to the

amount of negligence attributable to the person” who recovers, such

20
a diminution does not apply to claims for breach of implied

warranty.

¶ 57 As noted above in Part I.A.1.a, implied warranty claims are

“likened to strict liability for construction defects . . . .” Wall, 791

P.2d at 1150. That is, “proof of a defect due to improper

construction, design, or preparations is sufficient to establish

liability” on the part of a builder-vendor and, for this reason, the

concept of comparative fault is foreign to claims for implied

warranty. Hildebrand v. New Vista Homes II, LLC, 252 P.3d 1159,

1169 (Colo. App. 2010) (quoting Wall, 791 P.2d at 1150); cf.

Guardian Title Co. v. Mitchell, 2002 UT 63, ¶ 2, 54 P.3d 130, 131

(“[T]he tort principle[] of comparative negligence . . . do[es] not apply

to contract actions.”).

¶ 58 In entering judgment for Association, the trial court stated

that “the judgment on the negligence claim will be reduced by ten

percent, the percentage of negligence attributable to the plaintiffs.”

But, on the breach of warranty claim, “the amount of judgment will

be for the full amount of the damage award . . . .” Because

Association was entitled to “the full amount of the damage award”

on the breach of implied warranty claim, the court entered

21
judgment in favor of Association in the amount of $1,850,000, with

no reduction for comparative negligence.

¶ 59 We discern no error in the amount of the judgment. If

Association had prevailed only on its negligence claim, but not on

its implied warranty claim, the judgment would have needed to

reflect the ten percent reduction for Association’s comparative

negligence. However, because the jury also found that Association

prevailed on its breach of implied warranty claim — to which

comparative fault does not apply — Association is entitled to a

judgment in the full amount the jury awarded.

C. The Trial Court Did Not Err by Refusing to Instruct the Jury
on the Statute of Repose or the Statute of Limitations

¶ 60 Developer and Builder contend that the trial court erred by

refusing to instruct the jury on the statute of repose, which, they

argue, barred Association’s claims for construction defects in the

roadways that Combest built. In addition, Developer and Builder

contend that the court should have given the jury a similar

instruction on the statute of limitations for Association’s claim for

damage to those roadways allegedly caused when Builder drove

construction equipment over them. We disagree with Developer and

22
Builder’s contention that the trial court should have provided jury

instructions on the statute of repose and the statute of limitations.

¶ 61 A trial court has a duty to correctly instruct the jury on the

law. Schuessler v. Wolter, 2012 COA 86, ¶ 9, 310 P.3d 151, 158.

We review “for abuse of discretion a trial court’s decision not to give

a particular jury instruction. A trial court necessarily abuses its

discretion if it bases its ruling on an erroneous view of the law or a

clearly erroneous assessment of the evidence.” Id. at ¶ 10, 310 P.3d

at 158. “[A] judgment will not be reversed for refusal to give

requested instructions where there was not resulting substantial,

prejudicial error.” Id. at ¶ 11, 310 P.3d at 158.

1. Association Conceded that Its Original Claims Did Not
Encompass the Roadways that Combest Constructed

¶ 62 Although Developer and Builder tendered jury instructions on

the statute of repose and the statute of limitations, those

instructions addressed a nonissue. At that time, Association had

not pleaded any claim relating to the roadways that Combest

constructed.

¶ 63 As discussed above in Part I, Combest constructed

approximately half of the roadways in the development between

23
2007 and 2008. Builder, under the direction of Developer,

constructed the remaining roadways beginning in 2012.

¶ 64 In its complaint, Association asserted claims for negligence

and breach of implied warranty regarding Builder’s construction of

the development, including the roadways within the development.

The complaint did not distinguish between the roadways that

Combest constructed and those that Builder constructed.

¶ 65 But, at trial, Association conceded that any claim for defective

construction of a pre-2009 roadway was “barred by the statute of

repose.” (A statute of repose “limits the right to bring a claim to a

specific time period that begins to run not when the claim accrues,

but when the defendant’s last culpable act or omission takes place.”

Lewis v. Taylor, 2016 CO 48, ¶ 22, 375 P.3d 1205, 1209.)

Following that concession, Association advised the trial court that,

after the close of evidence, it planned to move “to amend the

Complaint to conform to the evidence based on the testimony we

received here about the construction traffic damaging [the roadways

that Combest constructed].” Thus, at that point of the trial, the

parties and the court knew that none of the claims in the case

involved a roadway that Combest constructed.

24
¶ 66 For reasons we cannot determine from the record, however,

Association never followed up on its representation that, later in the

trial, it would move for leave to assert claims for damage to the

roadways that Combest constructed. No party has pointed to, and

we cannot find, any evidence in the record indicating that

Association ever filed such a motion, much less that the trial court

granted one. Thus, Association’s claims, as modified by its

concession, did not encompass damage to the roadways that

Combest constructed.

¶ 67 Moreover, on the seventh day of trial, Association informed the

trial court that it was no longer alleging that any of the roadways

were “defectively installed.” Instead, Association announced that its

claims concerning the roadways were limited to allegations that

Builder damaged the roadways by driving “construction traffic” over

them. Association did not specify whether its generic reference to

“roadways” included roadways that Combest constructed, however.

¶ 68 But we find no indication in the record that Association’s

claims were ever amended to include a claim for damage caused

when Builder drove construction vehicles over roadways that

Combest built. (Although, in its supplemental trial brief,

25
Association sought to assert a new theory of liability, based on

Developer’s and Builder’s status as special declarants with

maintenance responsibilities, the brief does not mention damage to

any roadways that Combest constructed.)

¶ 69 In light of these facts, when Developer and Builder tendered

their proposed jury instructions on the statute of repose and the

statute of limitations, the case did not include any claim concerning

roadways that Combest constructed. Because Developer and

Builder’s statute of repose and statute of limitations instructions

related at most to claims that were hypothetical at the time

Developer and Builder tendered them, the court did not abuse its

discretion by declining to provide the instructions.

¶ 70 But the statute of limitations analysis does not end here

because Developer and Builder appear to argue that, regardless of

the claims properly in the case, the trial court erred by allowing

Association to present evidence that Builder’s construction vehicles

damaged roadways at the development. We turn to this issue next.

26
2. Developer and Builder Did Not Preserve Their Arguments
Regarding Association’s Evidence or Argument Concerning
Construction Vehicle Damage to the Roadways

¶ 71 Although the “construction traffic” claim was never properly in

the case, Developer and Builder contend that the trial court erred

by allowing Association to introduce evidence that Builder’s

construction vehicles damaged roadways at the development and to

refer to such damage in closing argument. Even though the trial

court admitted evidence concerning roadway damage, Developer

and Builder failed to contemporaneously object to the admission of

such evidence and to the references to such road damage in the

closing argument of Association’s counsel. Thus, this issue was not

preserved for appeal and we do not consider it. See Antolovich v.

Brown Grp. Retail, Inc., 183 P.3d 582, 600 (Colo. App. 2007) (“If a

party makes no contemporaneous objection to the introduction of

evidence, we will not review the alleged error on appeal.”).

D. Because an Assignment of Claims Is Not Required Under the
CCIOA, the Trial Court Did Not Err by Refusing to Allow
Testimony, Argument, or Jury Instructions Regarding
Assignments

¶ 72 Developer and Builder assert that the trial court erred by

allowing Association to assert claims for construction defects

27
affecting individual townhomes in the absence of assignments of

such claims from the owners of those townhomes. (Recall that, as

noted above in Part I, Association sought damages on behalf of itself

and its members for construction defects that manifested in the

common areas and in Ms. Rumfelt’s townhome.) We disagree.

¶ 73 Association owns and is responsible for maintaining the

common areas of the development. In contrast, each townhome

owner owns, and is responsible for maintaining, his or her

townhome. Because Association owns the common areas, but not

the townhomes, Developer and Builder argued at trial that, while

the owners would have standing to pursue construction defect

claims for damage in their own townhomes, it is unclear under

Yacht Club II whether Association has standing to bring such claims

on behalf of the owners without having obtained assignments of

claims from the owners.

¶ 74 The trial court rejected this argument. The court first noted

that Association was not claiming damage in individual townhomes

unrelated to construction defects in the common areas. Rather,

Association alleged that the damage in the Rumfelt townhome was a

“manifestation” of grading and drainage defects in the common

28
areas. Second, the court said that, in Yacht Club II, the division

acknowledged that the purpose of section 38-33.3-302(1)(d) was to

“enabl[e] Association to represent more effectively its owners in

such matters as construction defects, avoiding the necessity of

assignment of claims . . . .” Finding no language in

section 38-33.3-302(1)(d) requiring an assignment of such claims as

a condition precedent for Association’s assertion of its implied

warranty claims, the court concluded that it “should not graft such

a requirement into the statutory language.”

¶ 75 We agree with the trial court’s reasoning. To the extent

Association presented evidence of damage impacting individual

townhomes, Yacht Club II is clear: “[S]ection 38-33.3-302(1)(d)

confers standing upon associations to pursue damage claims on

behalf of two or more unit owners with respect to matters affecting

their individual units.” Yacht Club II, 94 P.3d at 1180. The only

limitation on such an action is that “the matter be one ‘affecting the

common interest community.’” Id. And, “[u]nder the CCIOA,

individual units are a part of the ‘common interest community.’”

Id.; see also Heritage Vill., 89 P.3d at 515 (holding that the CCIOA

and Yacht Club II “make clear that the Association has standing to

29
assert claims of individual unit owners”). But even if individual

units were not considered part of the “common interest community”

under the CCIOA, here, the damage in the Rumfelt townhome arose

from construction defects in the common areas.

¶ 76 Although the division in Yacht Club II did not consider whether

a homeowner’s association has standing to assert a claim on behalf

of its members for damages resulting from construction defects in

common areas, the reasoning of Yacht Club II applies to cases

involving such damages. If a homeowner’s association may recover

damages to repair construction defects in individual units, because

those units are part of the “common interest community,” then the

association has an even stronger argument for recovery of damages

for repair of construction defects in the common areas within the

common interest community that its members have the right to

enjoy. See Heritage Vill., 89 P.3d at 514-15 (holding that a

homeowner’s association has standing to assert claims on behalf of

its members for construction defects involving windows, decks, and

floor slabs at individual units because they are part of the “common

interest community”).

30
¶ 77 Moreover, Developer and Builder do not provide any authority

holding that a homeowner’s association lacks standing to assert, on

behalf of its members, claims relating to construction defects in the

common areas absent assignments of claims from its members.

¶ 78 The trial court’s reasoning finds additional support in

decisions from other states. See Lakeview Reserve Homeowners v.

Maronda Homes, Inc., 48 So. 3d 902 (Fla. Dist. Ct. App. 2010), aff’d,

127 So. 3d 1258 (Fla. 2013); Briarcliffe W. Townhouse Owners Ass’n

v. Wiseman Constr. Co., 454 N.E.2d 363 (Ill. App. Ct. 1983).

¶ 79 As here, the homeowners in Briarcliffe were members of a

homeowner’s association and parties to the development’s

declaration. 454 N.E.2d at 365. The declaration stated, among

other terms, that the association would manage the common areas

for the benefit of the homeowners, who had an easement to use the

common areas within the common interest community. Id. at

364-65.

¶ 80 In analyzing the right of the association to sue the developer

for construction defects in the common areas on behalf of its

members, the Illinois court noted

31
We perceive no real distinction between the
buildings and the common land in the
application of the public policy protecting a
purchaser of a new or reasonably new home
from latent defects in the building or the
required amenities since the purchaser in a
substantial degree must rely in either case on
the expertise of the building-vendor creating
the defect.

Id. at 365. The court explained that the “entire scheme of

marketing the townhouses” included the assurance that the

common areas would be deeded to the association so that the

owners could enjoy “the common areas in connection with their

homes.” Id. at 366.

¶ 81 In light of this analysis, the court rejected the developer’s

argument that the association lacked standing because it was

“neither a vendee nor subsequent vendee” and, thus, could not

assert claims for breach of the implied warranty of habitability as to

the common areas. Id. As the court reasoned, the developer’s

attempt to distinguish ownership of residential buildings and

ownership of common areas would undercut the public policy of

protecting “purchasers of new houses upon discovery of latent

defects, by requiring that such defects be cured by the builder or

developer who had created them.” Id.

32
¶ 82 Thus, the Illinois court concluded that the association had

“stated under general common law principles representational

standing to assert the rights of its individual members since it has

alleged an immediate, direct and substantial injury to any one of

them.” Id. at 367. Significantly, Briarcliffe makes no mention of the

need for assignments before a homeowner’s association can file suit

on behalf of its members for construction defects in common areas.

¶ 83 The Florida District Court of Appeals also ruled in favor of the

homeowner’s association under similar facts. In Lakeview Reserve,

the court held that a homeowner’s association had standing to

assert a claim for breach of the implied warranties of fitness and

merchantability against a builder/developer for defects in

“roadways, drainage systems, retention ponds and underground

pipes” in the subdivision. Lakeview Reserve, 48 So. 3d at 903-04.

The court rejected the developer’s argument that the implied

warranties did not apply to those common areas because they did

not “immediately support the residences.” Id.

¶ 84 The court reasoned that services that make a home habitable,

such as roads, drainage systems, retention ponds, and

underground pipes, are the types of improvements for which a

33
developer provides an implied warranty of fitness for a particular

purpose because they “immediately support the residence in the

form of essential services.” Id. at 908-09. Like Briarcliffe, the

Lakeview Reserve decision made no mention of an assignment

requirement.

¶ 85 Developer and Builder contend that allowing Association to

assert implied warranty claims without assignments from the

townhome owners places them “in the precarious position of having

two parties who allegedly have standing to pursue them” for the

same defects. But simply because two parties have standing to

bring the same claim does not mean those parties may recover the

same damages in successive litigation.

¶ 86 The doctrine of claim preclusion “preclude[s] 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, Inc. v. E-470 Pub. Highway Auth., 109 P.3d 604, 608-09

(Colo. 2005). “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

34
actions.” Id. For purposes of claim preclusion, “‘[p]rivity’ means

that a nonparty is related to a case in such a way that he or she

should be regarded as a party.” Strekal v. Espe, 114 P.3d 67, 69

(Colo. App. 2004). Under these principles, if Association, acting on

behalf of the townhome owners, pursued a claim for damages

arising from construction defects, the townhome owners would be

precluded from later bringing a claim to recover the same damages.

¶ 87 For the above reasons, Association was not required to obtain

assignments of claims from its members before it could assert

claims for construction defects in the common areas. See Heritage

Vill., 89 P.3d at 515.

E. The Trial Court Did Not Reversibly Err by Admitting Evidence
Regarding Damage in Townhomes at the Development

¶ 88 Developer and Builder assert that the trial court erred by

admitting evidence that Association had not properly disclosed

before the trial, testimony by witnesses whom Association had not

properly designated, and Association’s evidence supporting an

allegedly new theory of liability. We agree that the trial court erred

by allowing testimony regarding damage in a townhome that was

not part of the damages that Association sought to recover, hold

35
that such error was harmless, and disagree with Developer and

Builder’s remaining contentions regarding the challenged evidence.

¶ 89 The evidence at trial included testimony from townhome

owners about interior damage in their townhomes, including

damage that was not reflected in Association’s damage calculations.

Developer and Builder contend that such evidence and the related

argument by Association’s counsel in closing argument were

“salacious” and irrelevant and caused unfair prejudice to Developer

and Builder.

¶ 90 “Trial courts have considerable discretion to decide evidentiary

issues, so we review such decisions for an abuse of discretion.”

Murray v. Just In Case Business Lighthouse, LLC, 2016 CO 47M,

¶ 16, 374 P.3d 443, 450. We review erroneous evidentiary rulings

in civil cases for harmless error. C.R.C.P. 61; Bernache v. Brown,

2020 COA 106, ¶ 26, 471 P.3d 1234, 1240.

1. Evidence Not Timely Disclosed

¶ 91 C.R.C.P. 16(f)(2)(B) states that parties must identify and

exchange their lists of trial exhibits at least forty-two days before

trial. C.R.C.P. 16(f)(2)(B). “Where a party fails to make pretrial

disclosures, a trial court may impose appropriate sanctions,”

36
including the preclusion of evidence. Mullins v. Med. Lien Mgmt.,

Inc., 2013 COA 134, ¶ 37, 411 P.3d 798, 805.

¶ 92 “[T]he sanction of evidence or witness preclusion is

inappropriate if the lateness of the disclosure is harmless to the

other party.” Todd v. Bear Valley Vill. Apartments, 980 P.2d 973,

979 (Colo. 1999). In determining whether a late disclosure is

harmless, “the question is whether the failure to disclose the

evidence in a timely fashion will prejudice the opposing party by

denying that party an adequate opportunity to defend against the

evidence.” Id.

¶ 93 Developer and Builder first point to Association’s late

disclosure of photographs of the interior of three townhomes, one

owned by Ms. Rumfelt and two others with different owners. The

trial court admitted the interior photos of Ms. Rumfelt’s townhome,

but not the photographs of the other townhomes. As noted above in

Part I, Association argued that the damage in the Rumfelt

townhome resulted from Builder’s defective construction of the

common areas and included the cost of repairing such damage in

its overall damage calculations. Association’s expert’s report on the

cost of repairing the construction defects for which Association

37
sought damages included the cost of repairing damage in Ms.

Rumfelt’s townhome.

¶ 94 The late disclosure of the photographs of the interior of Ms.

Rumfelt’s townhome did not deprive Developer and Builder of the

opportunity to defend against claims involving that townhome.

Association timely disclosed its intention to seek damages for

construction defects in the Rumfelt townhome. Developer and

Builder do not explain how the untimely disclosure of the

photographs of Ms. Rumfelt’s townhome prejudiced them, given

Association’s timely disclosure that it was seeking to recover the

cost of repairs to that townhome. And because the trial court did

not admit the photographs of townhomes other than that of Ms.

Rumfelt, we need not consider Developer and Builder’s arguments

regarding photographs of those townhomes.

2. Witness Testimony Not Properly Disclosed

a. Testimony Regarding Townhomes Not at Issue

¶ 95 Developer and Builder assert that the trial court erred by

allowing the jury to hear the testimony of townhome owners besides

Ms. Rumfelt, even though Association did not seek to recover the

cost of repairing the damage in those individuals’ townhomes. We

38
agree regarding the testimony of townhome owner Judith Copeland

but hold that the admission of her testimony was harmless.

¶ 96 When reviewing the trial court’s determinations of relevance,

admissibility, probative value, and prejudicial effect of evidence, “we

afford the evidence its maximum probative weight and its minimum

prejudice” and review only for an abuse of discretion. Settle v.

Basinger, 2013 COA 18, ¶ 64, 411 P.3d 717, 728.

¶ 97 As noted above, Association sought damages for alleged

construction defects in only one townhome — that owned by Ms.

Rumfelt. But, before trial, Association announced its intention to

call as witnesses the owners of other townhomes, including Alice

Ulam, Debra Drew, and Ms. Copeland (collectively the other owners)

— to describe damage in their respective townhomes. In its initial

disclosures, Association generically identified “all current or former

owners” as persons with information about construction defects in

the development and attached a list of all the then-owners of

townhomes. Association did not identify the other owners it

intended to call to the witness stand until the day before trial,

although it had identified Ms. Copeland’s husband as a possible

witness two weeks earlier.

39
¶ 98 Because the trial court did not allow Ms. Drew to testify due to

Association’s failure to disclose her in a timely manner, we need not

address Developer and Builder’s arguments regarding Ms. Drew. In

addition, although Association disclosed Ms. Ulam as a witness the

day before trial, Developer and Builder did not contemporaneously

object to her testimony and, thus, Developer and Builder did not

preserve their objection to that testimony. See Antolovich, 183 P.3d

at 600.

¶ 99 Thus, we focus on Ms. Copeland’s testimony. The trial court

allowed Ms. Copeland to testify based on Association’s assertion

that she would address damage in her townhome that was a

“manifestation[]” of the defects affecting the entire community. The

court held that testimony about damage in individual townhomes

resulting from construction defects in the common areas was

relevant “in determining whether or not there is damage and what

those damages are . . . .” The court conceded that this testimony

“is perhaps more direct and a bit more personal” than the expert

testimony, “but it is certainly not calculated to inflame the jury . . .

[it] is testimony that puts a human element to the injuries that the

plaintiff is claiming.”

40
¶ 100 The court took steps to ensure that the jury understood that

the testimony about damage in individual townhomes did not

expand the scope of the damages that Association indicated it was

seeking to recover. For example, when Association sought to

introduce evidence of damage in a townhome other than that of Ms.

Rumfelt, the court explained to the jury that the damage in that

townhome “won’t be part of any damage award” and that any award

to Association “will be limited . . . to what’s listed in the cost of

repairs.” As noted above, the cost of repairs did not include the

cost of repairing damage in any individual townhome other than

Ms. Rumfelt’s townhome.

¶ 101 We agree with Developer and Builder that Ms. Copeland’s

testimony was irrelevant because the damage she described was not

part of the damages Association sought to recover. The evidence of

the damage in the Copeland townhome did not make Association’s

calculation of the cost of repairing the defects in the common areas

and Ms. Rumfelt’s townhome more or less accurate. See CRE 401;

Radcliff Props. Ltd. P’ship, L.L.L.P. v. City of Sheridan, 2012 COA 82,

¶¶ 36-37, 296 P.3d 310, 317 (holding that trial court did not err in

41
declining to admit photographs that did not go to a disputed issue

at trial).

¶ 102 We conclude, however, that the admission of Ms. Copeland’s

testimony about the damage in her townhome was harmless

because it did not affect the substantial rights of Developer and

Builder. See Bernache, ¶ 26, 471 P.3d at 1240. The trial court

instructed the jury that its award of damages must be based on and

limited to the damages that Association sought from Developer and

Builder. On appeal, “[w]e must presume the jury understood and

followed these instructions.” Harris Grp., Inc. v. Robinson, 209 P.3d

1188, 1202 (Colo. App. 2009). Because Developer and Builder do

not point us to evidence that the jury awarded damages for the cost

of repairing Ms. Copeland’s townhome, we presume that the jury

followed the trial court’s instruction.

¶ 103 Developer and Builder contend that the trial court further

erred by allowing Association, the day before trial, to substitute Ms.

Copeland for her husband, whose name appeared on Association’s

initial witness list. Two weeks after it disclosed Mr. Copeland as a

witness, Association informed Developer and Builder that Ms.

Copeland would be providing the same testimony for which

42
Association had designated her husband — testimony about

damage in their jointly owned townhome.

¶ 104 Developer and Builder do not explain how the substitution of

Ms. Copeland for Mr. Copeland prejudiced them. They do not argue

that they would have cross-examined Mr. Copeland any differently

from their actual cross-examination of Ms. Copeland, or that they

deposed Mr. Copeland and were prejudiced by allowing Ms.

Copeland — whom they had not deposed — to testify in his place.

¶ 105 For these reasons, we agree with the trial court that Developer

and Builder were not prejudiced through the substitution of Ms.

Copeland for her husband. Thus, the trial court did not abuse its

discretion by allowing the substitution of Ms. Copeland for her

husband.

b. The References to Owners of Other Townhomes in
Association’s Opening Statement

¶ 106 Developer and Builder contend that Association’s counsel’s

references in his opening statement to the anticipated testimony of

Ms. Copeland and Ms. Drew prejudiced them because Association

did not timely disclose the alleged damage in their townhomes or

the cost of repairing such damage.

43
¶ 107 The purpose of opening statements is “to inform the fact finder

of the evidence which may be offered to support the claims of the

parties.” Melton ex rel. Melton v. Larrabee, 832 P.2d 1069, 1071

(Colo. 1992). They are usually an “outline[] of anticipated proof,”

but are not a recitation of the facts themselves. Id. In considering

whether remarks in an opening statement are prejudicial, the trial

judge “is in a pre-eminent position to determine the potential effects

of the allegedly prejudicial statements on the jurors and thus his

judgment will only be overturned upon an abuse of discretion.”

People v. Jacobs, 179 Colo. 182, 187, 499 P.2d 615, 618 (1972).

¶ 108 Here, the trial court instructed the jury, at the outset of trial

and before its deliberations, that opening statements are not

evidence and that it could only consider the evidence presented at

trial. If the court gives an instruction regarding an opening

statement, “[a]bsent a contrary showing, it is presumed that the

jury understood the instruction[] and heeded [it].” Id.

¶ 109 Further, although Association’s counsel referenced Ms.

Copeland’s and Ms. Drew’s testimony in its opening statement, the

trial court allowed Ms. Copeland, but not Ms. Drew, to testify at

trial. As discussed above in Part II.E.2.a, we hold that the court did

44
not reversibly err in admitting Ms. Copeland’s testimony because

the admission of her testimony was harmless. And because the

court did not allow Association to call Ms. Drew to the witness

stand, we assume that the jury understood and followed the trial

court’s instruction that it could not consider as evidence the

reference to Ms. Drew in Association’s opening statement. For

these reasons, the trial court did not abuse its discretion by not

striking Association’s counsel’s references to Ms. Copeland’s and

Ms. Drew’s testimony in Association’s opening statement.

3. The Alleged New Theory of Liability

¶ 110 Finally, Developer and Builder allege that the trial court erred

by allowing Association to “pivot to a new undisclosed theory of

liability” during trial. We disagree.

¶ 111 As discussed above in Part II.C.1, counsel for Association

informed the court during the trial, outside the presence of the jury,

that it intended to move to amend its complaint to add a claim

regarding the alleged damage that Builder caused to the roadways

that Combest constructed by driving construction vehicles over

them. While Developer and Builder are correct that Association did

not plead this theory in its complaint, there is no indication in the

45
record that Association ever moved to add a claim regarding

damage to the roadways that Combest constructed, much less that

the trial court granted Association leave to plead such a claim.

More significantly, as discussed above in Part II.C.2, Association did

not present any evidence of damage to those specific roadways. The

jury never heard evidence that Builder damaged a roadway that

Combest had constructed, only that use of heavy equipment can

damage roadways generally.

¶ 112 Further, Developer and Builder did not contemporaneously

object to the testimony of Association’s witnesses concerning

roadway damage or the comments about roadway damage in the

closing argument of Association’s counsel. Thus, even if

Association presented evidence that Builder had specifically

damaged a roadway that Combest had constructed, Developer and

Builder did not preserve the argument for appeal.

F. The Trial Court Did Not Err by Allowing Testimony Referencing
Nonparties

¶ 113 Developer and Builder contend that the trial court erred by

allowing evidence and argument referencing two nonparties —

Challenger Homes and Brian Bahr — and that such evidence and

46
argument suggested that Developer and Builder had greater

financial resources than they actually possessed. Developer and

Builder seem to say that Association subtly provided the jurors with

the message that Challenger and Bahr had “deep pockets,” were

linked to Developer and Builder, and could easily pay a substantial

damage award. Because we cannot find any reference to

Challenger’s and Bahr’s financial status in the record, we are not

persuaded.

¶ 114 While Developer and Builder are correct that statements

“go[ing] outside of the record to appeal to passion and prejudice . . .

regarding a defendant’s ability to pay can be sufficient to warrant

granting a new trial,” we agree with the trial court that Association

made no such statements here. See Salazar v. Am. Sterilizer Co., 5

P.3d 357, 369 (Colo. App. 2000).

¶ 115 The references to Challenger and Bahr at trial included the

following:

 Ms. Copeland’s statement that Challenger was the entity

to which she made warranty claims and that made

repairs at the development after Builder went out of

business;

47
 Ms. Ulam’s testimony that Developer initially identified

itself to her as “an offshoot” of Challenger;

 testimony from Rich Vorwaller, a former employee of

Developer and a witness for Association, who said that he

worked for Challenger, he had reported to Bahr when he

worked for Developer, and Bahr was president of Builder

and an owner of Challenger and Developer;

 Ms. Rumfelt’s testimony that, upon purchasing her

townhome, she understood that Challenger was the

builder, she communicated with Challenger during the

construction of her townhome, and Challenger performed

warranty repairs at her townhome;

 testimony from Tom Streelman, a townhome owner, who

said that Challenger’s name appeared on an exhibit he

was reviewing, but that someone had crossed out the

name;

 statements by Association’s counsel in closing argument

that reminded the jury of the testimony of townhome

owners regarding the entity to which they had made

warranty claims and that the jury should not speculate

48
about what “Rivers and Brooktree and Challenger or

whoever else, were doing with that land”;

 testimony of Association’s expert witness Edward

Fronapfel that an exhibit contained the signature of Bahr

in his capacity as president of Builder; and

 testimony of Steven Vasas, a former employee of Builder

and a witness for Association, that an exhibit identified

Bahr as president of Builder.

¶ 116 Notably, Association did not introduce any evidence regarding

Challenger’s or Bahr’s finances, financial status, or ability to pay a

judgment. And none of the references noted above “go[es] outside of

the record” or appeals to passion or prejudice. See Salazar, 5 P.3d

at 369. These statements do not suggest that the jury should base

its verdict on Developer’s or Builder’s relationship to Challenger or

to Bahr. Thus, the trial court did not abuse its discretion in

admitting the evidence and allowing the arguments regarding

Challenger and Bahr.

III. Conclusion

¶ 117 The judgment is affirmed.

JUDGE NAVARRO and JUDGE TOW concur.

49