V&H v. Beardsley

23CA0630 V&H v Beardsley 08-14-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0630
Jefferson County District Court No. 19CV221
Honorable Tamara S. Russell, Judge

V&H Development Co., LLC,

Plaintiff-Appellee and Cross-Appellant,

v.

Craig Beardsley, Beardsley Construction & Development, Inc., and Beardsley
Enterprises LLC,

Defendants-Appellants and Cross-Appellees.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE WELLING
Brown and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 14, 2025

Fox Rothschild LLP, Spencer L. Sears, Risa B. Brown, Esther H. Lee, Denver,
Colorado, for Plaintiff-Appellee and Cross-Appellant

Martin Hild, P.A., Ll. Rhyddid Watkins, Codi K. Cox, Aurora, Colorado, for
Defendants-Appellants and Cross-Appellees
¶1 Defendants, Craig Beardsley, Beardsley Construction &

Development, Inc., and Beardsley Enterprises LLC (collectively, the

Beardsley Defendants), appeal the judgment in favor of plaintiff,

V&H Development Co., LLC (V&H), on V&H’s negligent

misrepresentation and breach of contract claims. V&H, in turn,

cross-appeals its award of damages and the trial court’s denial of its

motion to amend. We affirm the judgment.

I. Background

¶2 In 2015, V&H purchased an undeveloped lot with the

intention of building a single-family home. V&H hired Beardsley

Construction (succeeded by Beardsley Enterprises) to act as the

builder and general contractor for the project. Craig Beardsley and

his son, Matthew Beardsley, own Beardsley Enterprises. V&H

never entered into a formal written agreement with Beardsley

Construction or Beardsley Enterprises, but the parties agree that

they formed a contract.

¶3 In 2017, while construction of the home was ongoing, the

Beardsley Defendants were either fired from or quit the project. At

the time the Beardsley Defendants ended their work on the project,

most of the construction was complete, with the exception of some

1
punch list items. And in 2018, V&H sold the home to Christopher

and Svetlana Martie (the Homeowners).

¶4 In 2019, V&H brought suit against the Beardsley Defendants

(the 2019 action) alleging that they were liable for damages because

of project delays, cost overruns, and defects with the HVAC system.

V&H asserted the following claims against Craig Beardsley:

intentional misrepresentation of project completion schedule and

estimated project costs, intentional misrepresentation and

nondisclosure of project invoicing, and negligent misrepresentation

of project completion schedule and project costs. V&H asserted the

following claims against Beardsley Construction and Beardsley

Enterprises: breach of contract, construction defects, and unjust

enrichment. V&H later filed a motion to amend its complaint to add

new claims and defendants, but the court denied the motion. V&H

also withdrew its intentional misrepresentation and construction

defect claims, and the trial court later entered judgment dismissing

those claims with prejudice.

¶5 In 2023, the court held a five-day jury trial on the breach of

contract and negligent misrepresentation claims. V&H’s unjust

enrichment claim wasn’t presented to the jury because it was an

2
equitable claim. The jury found against (1) Beardsley Enterprises

on the breach of contract claim in the amount of $78,207.51;

(2) Beardsley Construction on the breach of contract claim in the

amount of one dollar; and (3) Craig Beardsley on the negligent

misrepresentation claim in the amount of one dollar. The Beardsley

Defendants filed a motion for directed verdict and later a motion for

judgment notwithstanding the verdict (JNOV), both of which were

denied. V&H filed a post-trial motion for additur or, alternatively, a

new trial on damages, which the court also denied.

II. Analysis

¶6 On appeal, the Beardsley Defendants contend that the

judgment against them should be reversed because V&H (1) raised

construction defect claims without complying with the Construction

Defect Action Reform Act (CDARA); (2) failed to prove its breach of

contract claim; (3) failed to prove its negligent misrepresentation

claim; and (4) failed to prove damages associated with its negligent

misrepresentation claim. On cross-appeal, V&H contends that the

trial court erroneously (1) denied its motion for additur; (2) declined

to give the jury its proposed instruction on multiple claims and

3
double recovery; and (3) denied its motion to amend its complaint

and its motion to reconsider.

¶7 To cogently analyze the issues presented by the Beardsley

Defendants in their appeal and by V&H in its cross-appeal, we must

first address the parties’ failure to comply with the Colorado

Appellate Rules, which impairs and necessarily constrains our

review of their respective contentions. We then address V&H’s

contentions that the trial court erred by failing to instruct the jury

that it would ensure there wouldn’t be double recovery if verdicts

were entered in favor of V&H on multiple claims and by denying

V&H’s motion to amend its complaint and its motion to reconsider

that denial.

A. The Parties’ Noncompliance with the Colorado Appellate Rules

¶8 The Beardsley Defendants and V&H have failed to comply with

the Colorado Appellate Rules. Most glaring among these failures is

the omission of two of the five days of trial transcripts from the

record on appeal — meaning we have a woefully incomplete picture

of what evidence was or wasn’t presented at trial. As discussed

more fully below, these failures impair our ability to fully address

the merits of the Beardsley Defendants’ contentions that V&H

4
(1) couched a construction defect claim as a breach of contract

claim without complying with the CDARA; (2) failed to sufficiently

prove its breach of contract claim; and (3) failed to properly prove

its negligent misrepresentation claim — or any associated damages

— against Craig Beardsley. The failures also affect our review of

V&H’s assertion that the trial court erred by denying its motion for

additur.

1. Legal Principles

¶9 It’s expected that counsel is familiar with and complies with

the Colorado Appellate Rules. O’Quinn v. Baca, 250 P.3d 629, 631

(Colo. App. 2010). The Colorado Appellate Rules aren’t “mere

technicalities.” Id. And adherence to these procedural rules “is

essential to the administration of justice.” Id. (quoting United

States v. Seigel, 168 F.2d 143, 146 (D.C. Cir. 1948)).

[T]he administration of justice involves not
only meticulous disposition of the conflicts in
one particular case but the expeditious
disposition of hundreds of cases. If the courts
must stop to inquire where substantial justice
on the merits lies every time a litigant refuses
or fails to abide the reasonable and known
rules of procedure, there will be no
administration of justice. Litigants must be
required to cooperate in the efficient
disposition of their cases.

5
Id. (quoting Seigel, 168 F.2d at 146).

¶ 10 Colorado Appellate Rule 10 requires an appellant to “include

in the record transcripts of all proceedings necessary for

considering and deciding the issues on appeal.” C.A.R. 10(d)(3); see

also Northstar Project Mgmt., Inc. v. DLR Grp., Inc., 2013 CO 12, ¶ 14

(appellant is required to designate “all evidence relevant” to review

of the sufficiency of the evidence). If a party asserts error, that

party must “affirmatively show” that error occurred. People v.

Duran, 2015 COA 141, ¶ 11. “[W]hen determining whether the

party asserting error has met its burden, a reviewing court must

review and consider the entire record and apply the evidence in a

manner that will support the judgment.” Id. But we can’t review

facts that don’t appear in the record; instead we must indulge “[t]he

presumption . . . that material portions omitted from the record

would support the judgment.” Id. at ¶ 12; see also Hock v. N.Y. Life

Ins. Co., 876 P.2d 1242, 1252 (Colo. 1994) (“An appellate court

must presume that the trial court’s findings and conclusions are

supported by the evidence when the appellant has failed to provide

a complete record.”).

6
¶ 11 Furthermore, C.A.R. 28(a)(7)(B) requires that the arguments

advanced in an appellant’s opening brief contain

a clear and concise discussion of the grounds
upon which the party relies in seeking a
reversal or modification of the judgment or the
correction of adverse findings, orders, or
rulings of the lower court or tribunal, with
citations to the authorities and parts of the
record on which the appellant relies.

(Emphasis added.) When a party fails to direct us to relevant

portions of the record, “appellants place the burden of searching

records on us,” but “[w]e are . . . under no obligation to undertake

such a search,” and “parties ‘should not “expect the court to peruse

the record without the help of pinpoint citations.”’” O’Quinn, 250

P.3d at 631-32 (quoting L.S.F. Transp., Inc. v. NLRB, 282 F.3d 972,

975 n.1 (7th Cir. 2002)).

2. The Record and Briefing Are Inadequate to Assess the
Beardsley Defendants’ Claim that V&H
Failed to Comply with CDARA

¶ 12 The Beardsley Defendants contend that the trial court erred

when it denied their motion for JNOV in which they argued that

V&H improperly sought and recovered damages for construction

defects without complying with CDARA. To assess this claim, we

must conduct a de novo review of the evidence presented at trial.

7
See M.G. Dyess, Inc. v. MarkWest Liberty Midstream & Res., L.L.C.,

2022 COA 108, ¶ 27 (We review de novo a trial court’s ruling on a

motion for JNOV, and “[m]otions for JNOV should only be granted

when, from the standpoint of a reasonable juror, there was no

evidence, or inference therefrom, upon which a verdict against the

movant could be sustained.”). But the Beardsley Defendants only

provided us with two days of trial transcripts from a five-day trial.1

The omitted transcripts appear to include the direct examination of

Mike Vahabzadegan, the principal of V&H, among others, who may

have testified to the terms of the parties’ oral contract. Without the

complete record, we can’t properly analyze whether V&H was

awarded damages for claims that required compliance with CDARA.

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

1 Based on our review of the record, it appears that this omission

was intentional. Although counsel for the Beardsley Defendants
initially requested transcripts from all five days of trial, according to
a September 26, 2023, affidavit from the court reporter, counsel
requested that the court reporter not prepare a transcript for the
first two days of the trial. Specifically, in her affidavit, the court
reporter stated that, “[u]pon receipt and review of the estimate [of
the cost for preparing the designated transcripts], [c]ounsel removed
January 9, 2023, and January 10, 2023 and requested we prepare
transcripts for 5/13/2021, 5/20/2021, 1/12/2023, and
1/13/2023.”

8
2017 COA 31, ¶ 28 (whether claims fall within CDARA depends on

the nature of the allegations).

¶ 13 Additionally, the Beardsley Defendants failed to include

pinpoint record citations in their opening brief regarding their

contention that V&H recovered damages for construction defect

claims without complying with CDARA. In their answer-reply brief,

the Beardsley Defendants included record citations to invoices and

emails purportedly showing that V&H recovered for construction

defects, but they failed to cite trial testimony discussing the exhibits

or showing the admission of the exhibits at trial. This further

impairs our ability to analyze this issue.

¶ 14 Without citations to witness testimony and without the full

transcript of the trial, we can’t properly review this claim and must

conclude that the Beardsley Defendants failed to show that any

error occurred. See Duran, ¶¶ 11-12.

3. The Record and Briefing Are Inadequate to Assess the
Beardsley Defendants’ Claim that V&H Failed to
Prove Breach of Contract

¶ 15 The Beardsley Defendants contend that V&H failed to present

sufficient evidence of damages to establish its breach of contract

claim because V&H (1) wasn’t legally entitled to recover for cost

9
overruns under the parties’ contract, and even if it were, V&H didn’t

present sufficient evidence to prove any cost overruns or delay

damages; (2) waived any right to recover cost overruns as damages

for breach of contract; and (3) withheld evidence that would have

reduced the damages award, entitling the Beardsley Defendants to

remittitur.

¶ 16 Again, the Beardsley Defendants failed to provide the trial

transcripts or record citations necessary to support these

contentions. Without the full trial transcript and without pinpoint

citations to the record, we can’t determine V&H’s legal entitlement

to recover damages, any purported waiver of a legal entitlement to

recovery, or whether the jury awarded V&H excess damages. See In

re Estate of Chavez, 2022 COA 89M, ¶ 35 (“When a jury verdict is

challenged on the grounds that it is unsupported by the evidence,

we must review the entire record to determine whether there is

competent evidence from which the jury logically could have

reached its verdict.”) (emphasis added) (citation omitted). Thus, we

can’t and won’t address the merits of the Beardsley Defendants’

arguments that V&H failed to prove damages for breach of contract.

10
4. The Record Is Inadequate to Assess the Beardsley Defendants’
Negligent Misrepresentation Claims

¶ 17 The Beardsley Defendants contend that the judgment against

Craig Beardsley for negligent misrepresentation must be reversed

for three reasons: (1) the negligent misrepresentation claim was

improperly based on statements about future performance; (2) V&H

failed to prove that Craig Beardsley’s estimate fell below the

requisite standard of care; and (3) V&H failed to establish damages

associated with its negligent misrepresentation claim.

¶ 18 Without the entire trial transcript, we aren’t able to determine

whether the negligent misrepresentation verdict was based entirely

on statements about future performance, whether there was

adequate testimony regarding the standard of care for providing

cost estimates, whether Craig Beardsley’s conduct fell below the

standard of care for providing cost estimates, or whether V&H failed

to prove damages associated with the negligent misrepresentation

claim. We therefore decline to address the merits of any of the

Beardsley Defendants’ arguments regarding the propriety of the

negligent misrepresentation judgment against Craig Beardsley.

Instead, we presume that the omitted portion of the record supports

11
the judgment on this claim. See, e.g., In re Marriage of Dean, 2017

COA 51, ¶ 13 (“Where the appellant fails to provide . . . a transcript,

the [appellate] court must presume that the record supports the

judgment.”).

5. The Record Is Inadequate to Assess Whether the Court Erred
by Denying V&H’s Motion for Additur

¶ 19 V&H contends that the trial court erred by denying its motion

for additur. According to V&H, the jury improperly conflated the

imposition of nominal damages against Beardsley Construction for

its breach of contract claim with the need to award nominal

damages for its negligent misrepresentation claim. V&H requests

that an additur of $78,207.51 be applied to its negligent

misrepresentation claim or, alternatively, that it receive a new trial

on the issue of damages.

¶ 20 But V&H doesn’t point to anything in the record indicating

that it’s entitled to more damages than it was awarded. And despite

V&H stating in its notice of cross-appeal that all of the trial

transcripts were necessary and that it would “ensure that the

transcripts are properly and timely designated,” V&H failed to

provide the transcripts from the first two days of trial for our review.

12
See Hock, 876 P.2d at 1252 (“[T]he moving party will not be

permitted to take advantage of its own failure to designate pertinent

portions of the transcript as part of the record on appeal.”); Wolven

v. Velez, 2024 COA 8, ¶ 53 n.6 (“It is the obligation of the party

asserting error in a judgment to present a record that discloses that

error, for a judgment is presumed to be correct until the contrary

affirmatively appears.” (quoting Schuster v. Zwicker, 659 P.2d 687,

690 (Colo. 1983))).

¶ 21 Without citations to record support for V&H’s assertion that it

is entitled to additional damages and without the entire trial

transcript, we can’t review whether the jury awarded adequate

damages to V&H; instead, we must presume that the trial court’s

ruling was correct. See Duran, ¶¶ 11-12; cf. McCall v. Meyers, 94

P.3d 1271, 1272 (Colo. App. 2004) (“A party cannot overcome a

deficiency in the record by statements in the briefs.”). Thus, we

decline to further address whether the trial court erred by denying

V&H’s motion for additur.

¶ 22 Because the missing trial transcripts aren’t necessary for the

resolution of V&H’s remaining claims and because V&H provided

13
record citations in compliance with C.A.R. 28 for its remaining

contentions, we address them on the merits.

B. The Trial Court Didn’t Err by Declining to Give V&H’s
Proposed Jury Instruction

¶ 23 V&H contends that the trial court erred by declining to give

the jury its proposed instruction regarding double recovery.

According to V&H, the trial court’s jury instruction on multiple

recovery when suing on alternative but duplicative claims for relief

“prejudiced [it], invited jury confusion[,] and misled the jury into

believing it could award damages for only one of [its] claims —

breach of contract or negligent misrepresentation — but not both.”

V&H contends that its proposed language on double recovery was

necessary to ameliorate this confusion. We aren’t persuaded.

1. Additional Facts

¶ 24 Before trial, the parties agreed that the trial court should give

the following instruction modeled after the pattern jury

instructions:

Plaintiff V&H has sued for the same injuries,
damages, and losses on both of its claims
asserted against the Beardsley Defendants.
The claims on which V&H has sued and on
which you have been instructed are:
1. Negligent Misrepresentation; and 2. Breach

14
of Contract. If you find for V&H on more than
one claim, you may award it damages only
once for the same injuries, damages, and
losses.

See CJI-Civ. 6:14 (2025).

¶ 25 But V&H also proposed that the court include the following

additional language in the instruction: “In rendering its judgment

on any verdict you return, the Court will ensure that V&H does not

recover twice for the same injuries, damages or losses should you

return your verdict for V&H and award it damages on one or more

of its claims.” According to V&H, this additional language was

necessary to avoid jury confusion because without it the jury would

“be incorrectly led to believe that it could award damages on only

one of [its] claims.” The Beardsley Defendants objected to the

additional proposed language. The trial court agreed that the

additional language wasn’t necessary and declined to add the

proposed language to the instruction it gave the jury.

2. Standard of Review and Legal Principles

¶ 26 We review de novo whether jury instructions, as a whole,

“accurately inform the jury of the governing law.” Ochoa v. Vered,

212 P.3d 963, 966 (Colo. App. 2009). But we review the trial court’s

15
decision to give a particular jury instruction for an abuse of

discretion. Id. It isn’t error for the trial court to refuse to give an

instruction, “even if [it’s] correct in legal effect, if the other

instructions given adequately inform the jury of the applicable law.”

Peterson v. Tadolini, 97 P.3d 359, 360 (Colo. App. 2004). Generally,

when the trial court instructs the jury in a civil case, it should use

instructions “contained in the Colorado Jury Instructions that

apply to the evidence under the prevailing law.” Ochoa, 212 P.3d at

966.

3. The Trial Court Properly Instructed the Jury on the Law

¶ 27 To begin, we can’t discern how the proposed language adds

clarity to the instruction the court gave. All that V&H’s proposed

additional language would have done was inform the jury what the

court would do with the jury’s verdict once rendered; the proposed

additional language didn’t provide the jury with any additional

direction with respect to how it was to perform any of its duties or

tasks. Thus, we aren’t persuaded that the instruction was

necessary or that the trial court abused its discretion in declining to

include the proposed language.

16
¶ 28 Further, V&H’s reliance on Steward Software Co. v. Kopcho,

275 P.3d 702 (Colo. App. 2010), rev’d on other grounds, 266 P.3d

1085 (Colo. 2011), doesn’t persuade us otherwise. In Kopcho, a jury

found against Kopcho on claims for civil theft, breach of contract,

and breach of fiduciary duty. 275 P.3d at 705. The jury, however,

awarded substantive damages only on the civil theft claim and

awarded nominal damages on the remaining claims. Id. On appeal,

a division of this court concluded that the jury instructions “as a

whole erroneously prevented the jury from awarding the same

damages on all three . . . claims.” Id. at 711. The division stated,

“[I]n a case like this one, where a jury finds liability on multiple

claims, the jury must be directed to award the same damages on all

three claims if the damages are proven as to those claims.” Id.

¶ 29 But that’s not the instruction that V&H requested. Its

proposed additional language would have simply informed the jury

what the court would do in the event the jury awarded duplicate

damages on multiple claims. The proposed language didn’t

countermand the direction to the jury — which V&H didn’t object to

— that it may award V&H damages “only once for the same injuries,

damages, and losses.” In other words, V&H’s proposed language

17
wouldn’t have fixed the defect it claims the court’s instruction

suffered from. And it never requested the sort of instruction

contemplated by the Kopcho division. See Vititoe v. Rocky Mountain

Pavement Maint., Inc., 2015 COA 82, ¶ 60 (errors not brought to the

trial court’s attention are generally deemed waived and an appellate

court won’t consider arguments premised on these errors).

C. The Trial Court Didn’t Err by Denying V&H’s Motion to Amend
Its Complaint

¶ 30 We next address V&H’s contention that the trial court erred by

denying its motion to amend the complaint and its motion to

reconsider. We aren’t persuaded.

1. Additional Facts

¶ 31 In 2020, soon after V&H filed suit against the Beardsley

Defendants, the Homeowners filed suit against V&H (the

Homeowner action). In their complaint, the Homeowners alleged

that the home suffered from a multitude of construction defects.

The Beardsley Defendants weren’t named as defendants in the

Homeowner action, but V&H filed a motion to consolidate the

Homeowner action with its 2019 action against the Beardsley

Defendants for the purpose of discovery only, which the trial court

18
granted. In May 2021, the Homeowners settled the Homeowner

action with V&H. As part of the settlement agreement, the

Homeowners and V&H agreed that the Homeowner action would be

dismissed with prejudice and the Homeowners “assign[ed] to V&H

any and all claims asserted or that could have [been] asserted” in

the 2019 action.

¶ 32 But the litigation in the 2019 action remained ongoing. On

August 12, 2021 — approximately three months after settling with

the Homeowners — V&H filed a motion to amend its complaint. In

its motion, V&H stated that it sought “to add the new action for

contribution and as assignee of [the Homeowners]” and to “add

additional defendants to this action and identify the additional

defects revealed throughout the discovery process.” In its proposed

amended complaint, V&H sought to add the following claims

against the Beardsley Defendants: negligence - construction defects,

negligence per se, contribution, and negligent

misrepresentation/nondisclosure. V&H further sought to add nine

new defendants including Matthew Beardsley and several

subcontractors. V&H also asserted approximately thirty additional

defects “caused by Beardsley and the new Defendants.”

19
¶ 33 The trial court denied V&H’s motion to amend the complaint,

finding that

[c]onsolidation of the actions does not make
the Beardsley Defendants a party to the
[Homeowners’] suit against V&H. Even though
the [Homeowners] assigned all of their claims
to V&H in one case, the assignment does not
carry over to any other lawsuit involving V&H.
V&H should have added the new defendants
and claims in [the Homeowner action] or filed a
new lawsuit . . . . The Beardsley Defendants
should not be required to be involved in
litigation by V&H against subcontractors that
may owe V&H for claims assigned to them by
the [Homeowners], or for claims that V&H has
known about all along and not added until
now.

¶ 34 After the court denied its motion to amend, V&H filed a motion

requesting that the court reconsider that denial. The court denied

the motion to reconsider. After the court denied both motions, V&H

filed a new action against the Beardsley Defendants and Matthew

Beardsley individually in November 2021 (the 2021 action).

2. Legal Principles and Standard of Review

¶ 35 C.R.C.P. 15(a) provides, in relevant part, that “a party may

amend his pleading only by leave of court or by written consent of

the adverse party; and leave shall be freely given when justice so

requires.” The rule reflects “a liberal policy toward timely

20
amendments to pleadings” and “encourages trial courts to look

favorably upon motions to amend.” Benton v. Adams, 56 P.3d 81,

85 (Colo. 2002). But there are numerous grounds on which a trial

court may deny a motion to amend a pleading, including “undue

delay, . . . undue prejudice to the opposing party, and futility of

amendment.” Id. at 86. When determining whether to grant or

deny a party’s motion for leave to amend the pleadings, the court

must consider the totality of the circumstances and “balanc[e] the

policy generally favoring the amendment of pleadings against the

burden that granting the amendment may impose on other parties.”

Vinton v. Virzi, 2012 CO 10, ¶ 10.

¶ 36 The decision to grant a party leave to amend “is within the

sound discretion of the trial court.” Benton, 56 P.3d at 85. We

review a trial court’s decision to deny a party’s motion to amend

pleadings for an abuse of discretion. Riccatone v. Colo. Choice

Health Plans, 2013 COA 133, ¶ 47. “A trial court abuses its

discretion when its decision is manifestly arbitrary, unreasonable,

or unfair” or “when it misconstrues or misapplies the law.” Rinker

v. Colina-Lee, 2019 COA 45, ¶ 29. But if a trial court denies a party

21
leave to amend on futility grounds, we review that decision de novo.

Schaden v. DIA Brewing Co., 2021 CO 4M, ¶ 34.

3. The Trial Court’s Grounds for Denying the Motion to Amend

¶ 37 It appears from the court’s order that it denied V&H’s motion

to amend for two independent reasons: (1) the proposed

amendment would be futile because V&H failed to comply with the

statute of limitations contained in section 13-80-104(1)(b)(II), C.R.S.

2024, and (2) the proposed amendment was unduly delayed and

prejudicial to the Beardsley Defendants. V&H argues that neither

basis survives appellate scrutiny. We conclude that the second one

does.

a. Futility

¶ 38 To the extent that the trial court denied the motion to amend

the complaint on the grounds that either the amendment or claims

brought in a future suit would be futile, it erred.

i. The Statute of Limitations

¶ 39 Pursuant to section 13-80-104(1)(a), all actions against a

contractor “performing or furnishing the design, planning,

supervision, inspection, construction, or observation of

construction of any improvement to real property” must be brought

22
within the timeline provided in section 13-80-102, C.R.S. 2024,

after a claim for relief arises. If a party is bringing a civil action that

falls under section 13-80-102, it “must be commenced within two

years after the cause of action accrues.” § 13-80-102(1). According

to section 13-80-104(1)(b)(I), “a claim for relief arises under this

section at the time the claimant or the claimant’s predecessor in

interest discovers or in the exercise of reasonable diligence should

have discovered the physical manifestations of a defect in the

improvement which ultimately causes the injury.”

¶ 40 Notwithstanding this statutory limitation,

all claims, including, but not limited to
indemnity or contribution, by a claimant
against a person who is or may be liable to the
claimant for all or part of the claimant’s
liability to a third person:

(A) Arise at the time the third person’s claim
against the claimant is settled or at the time
final judgment is entered on the third person’s
claim against the claimant, whichever comes
first; and

(B) Shall be brought within ninety days after
the claims arise, and not thereafter.

§ 13-80-104(1)(b)(II)(A)-(B). While a third-party claim under section

13-80-104(1)(b)(II)(A) doesn’t arise until a case is settled or

23
judgment is entered, “such claims may be brought in either (1) the

construction defect litigation before a settlement or entry of

judgment or (2) a separate lawsuit after a settlement or entry of

judgment.” Goodman v. Heritage Builders, Inc., 2017 CO 13, ¶ 9.

¶ 41 Further, as relevant here, under CDARA section 13-20-

803.5(1)(a), C.R.S. 2024, if a plaintiff is filing suit against a

construction professional, they must deliver written notice of the

claim to the professional no later than seventy-five days before filing

the suit. If a plaintiff properly sends notice to a “construction

professional in accordance with section 13-20-803.5 within the time

prescribed for the filing of an action under any applicable statute of

limitations or repose, then the statute of limitations or repose is

tolled until sixty days after the completion of the notice of claim

process described in section 13-20-803.5.” § 13-20-805, C.R.S.

2024.

ii. The Statute of Limitations Didn’t Bar V&H’s Claims

¶ 42 Because V&H settled the Homeowner action on May 20, 2021,

neither V&H’s motion to amend nor its 2021 action was barred by

the statute of limitations. Rather, in accordance with section 13-

80-104(1)(b)(II)(A)-(B), V&H’s settlement of the Homeowner action

24
caused a claim for relief to arise and V&H had ninety days from the

settlement date (i.e., until August 18, 2021), to bring its new claims

against the Beardsley Defendants.

¶ 43 V&H filed its motion to amend the complaint on August 12,

2021. This was within the ninety-day time period established by

section 13-80-104(1)(b)(II). Further, it’s of no moment that V&H

sought to bring the claims in the 2019 action rather than in an

entirely new suit. Indeed, section 13-80-104(1)(b)(II)(A)-(B) specifies

only that the claims must be brought within ninety days after they

arise. The statute is agnostic, however, as to whether that should

be done in a separate lawsuit. Under Goodman, a party can bring

the claims either in the construction defect litigation before a

settlement or judgment or in a separate lawsuit after a settlement

or judgment. Goodman, ¶ 9. In this case, V&H attempted to do

just that. While V&H didn’t file an entirely separate lawsuit from its

original lawsuit against the Beardsley Defendants, it filed new

claims arising from the Homeowner action settlement (1) after the

settlement and (2) in a lawsuit distinct from the Homeowner action.

Thus, the trial court erred in concluding that the contribution

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claims asserted in the amended complaint were time barred and,

therefore, that permitting the amendment would have been futile.

¶ 44 Concluding that the amendment to the complaint would be

futile because the claims sought to be added were time barred

wasn’t the trial court’s only error. It also unnecessarily weighed in

on whether V&H could bring its contribution claims in a separate

action, ruling that “[V&H] has not complied with the requirements

of C.R.S. § 13-80-104[](1)(b)(II) by . . . filing a new case against the

subcontractors within 90 days of settlement.” This conclusion was

erroneous because it failed to consider the tolling provision in

section 13-20-805.

¶ 45 As noted before, under section 13-20-805, if a notice of claim

is sent to a construction professional “within the time prescribed for

the filing of an action under any applicable statute of limitations or

repose, then the statute of limitations or repose is tolled until sixty

days after the completion of the notice of claim process described in

section 13-20-803.5.” (Emphasis added.) According to section 13-

20-803.5(1), the notice of claim process first requires that written

notice of claim be delivered to a construction professional within a

statutorily prescribed timeframe. V&H complied with this

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requirement and began the notice of claim process against the

Beardsley Defendants on July 28, 2021, and against Matthew

Beardsley on July 29, 2021, when it sent them letters regarding

“Notice of Claim Pursuant to . . . § 13-20-801, et. seq.” Because

V&H began this process within ninety days of the settlement, the

limitations period was tolled “until sixty days after the completion of

the notice of claim process.” § 13-20-805 (emphasis added). And in

this case, at least with respect to the Beardsley Defendants, the

parties didn’t complete the notice of claim process until April 6,

2022, when the Beardsley Defendants informed V&H that they

wouldn’t offer to settle the repairs. See § 13-20-803.5(6).

¶ 46 Because the notice of claim process didn’t conclude until April

6, 2022, the statute of limitations was tolled until sixty days after

April 6, 2022, well after V&H filed its 2021 action against the

Beardsley Defendants on November 21, 2021.

¶ 47 This doesn’t end our analysis of this issue, however. We next

consider the court’s alternate independent ground for denying the

motion.

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b. Undue Delay and Prejudice

¶ 48 Delay alone may justify a trial court’s denial of a motion for

leave to amend “if active case management has occurred to

minimize delay.” Benton, 56 P.3d at 85. But while a trial court may

deny leave to amend based on delay, “delay in seeking an

amendment is not a sufficient basis if the other party is not

prejudiced.” Wisehart v. Zions Bancorporation, 49 P.3d 1200, 1208

(Colo. App. 2002). The record supports the court’s finding that

V&H unduly delayed its request to amend the complaint and that

the delay was prejudicial to the Beardsley Defendants.

¶ 49 In addition to finding that V&H had known about the

contribution claim since September 2019 — nearly two years before

it asked to amend its complaint to add the contribution claim — the

court also found that V&H’s motion to amend sought to “add nine

new Defendants and approximately [thirty] new claims.” The record

supports that V&H sought to assert approximately thirty additional

defects, add nine new defendants, and add three new claims

against the Beardsley Defendants. And V&H’s request to do so

would significantly impact — and certainly delay — a case that, at

that point, had been underway for almost two years. Indeed, by the

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time V&H sought leave to amend, discovery had been ongoing in the

case, and it had previously been set for trial.

¶ 50 Given the length of time the parties had been actively

litigating, and the likely delay created by the addition of multiple

parties and numerous claims, the trial court was within its

discretion to deny the motion to amend as unduly delayed and

prejudicial. See Benton, 56 P.3d at 85 (“If a party seeks leave to

amend after substantial progress toward trial has occurred, or if

granting leave to amend would significantly delay the progress of

the case to trial, a trial court may deny leave to amend if it should

have been brought earlier.”). And because this basis, standing

alone, is sufficient to support the court’s decision, the trial court

didn’t abuse its discretion by denying V&H’s motion to amend and

its subsequent motion to reconsider.

III. Disposition

¶ 51 The judgment is affirmed.

JUDGE BROWN and JUDGE MOULTRIE concur.

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