COLORADO COURT OF APPEALS                                       2017COA31


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


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

Plaintiffs-Appellants,

v.

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

Defendant-Appellee.


                         JUDGMENT REVERSED AND CASE
                          REMANDED WITH DIRECTIONS

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

                            Announced March 9, 2017


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

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


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

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

 the parties’ contract or relevant Colorado statutes govern the

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

 impression — whether a senior facility constitutes “residential

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

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

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

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

 cases involving claims arising from residential property.

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

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

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

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

 Broomfield brought claims against Brinkmann for breach of

 contract, negligence, negligence per se, negligent



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

                                   1
 misrepresentation,2 and breach of express warranties. Brinkmann

 raised both contractual limitations and statutory limitations

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

 the term “residential property” in the HPA unambiguously includes

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

 against public policy. Therefore, the relevant statutory accrual

 provisions apply here. We further conclude that genuine issues of

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

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

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

 Brinkmann was given an adequate opportunity to correct the

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

 Accordingly, we reverse and remand for further proceedings.

                            I.    Background

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

 into an American Institute of Architects Standard Form of

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




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

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

contract contains a general warranty provision, § 3.5, which

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

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

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

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

general warranty provision, the contract includes an additional

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

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

additional warranty extends the warranty period by one year

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

promptly notify the contractor of any defect and provides that an

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

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




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

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

 time permits the owner to make the correction.

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

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

 Appendix 2. This clause contains three separate accrual provisions.

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

 occurring before substantial completion accrue no later than the

 date of substantial completion; (2) occurring between substantial

 completion and final payment certificate accrue no later than the

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

 payment accrue no later than the time provided in the warranty

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

¶5    A certificate of substantial completion was issued on March

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

 certificate of occupancy was issued. At that time, neither

 Broomfield nor Brinkmann noted any defects in the construction of

 the building.

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

 a general contractor to investigate their cause. The contractor

 determined that the sewer flies resulted from broken sewer pipes.


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

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

 Broomfield began excavation beneath the building to inspect and

 repair the broken pipes. The contractor eventually advised

 Broomfield that the breaks resulted from soil expansion and

 recommended further investigation of other potential pipe breaks.

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

 conduct this further investigation. SBSA began its investigation on

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

 During that two-year period, SBSA identified numerous building

 defects that it attributed to improper construction. See infra

 Appendix 3.

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

 to Broomfield identifying the defects discovered. On January 28,

 2014, Broomfield issued a notice of claim informing Brinkmann of

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

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

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

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

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


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

 Broomfield to the construction documents, Brinkmann concluded

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

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

 “work requiring repair.”

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

 Brinkmann. Brinkmann responded with a motion for summary

 judgment arguing that there were no issues of material fact because

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

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

 for summary judgment, reasoning that because all claims accrued

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

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

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

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

 concluded that Broomfield had waived its right to assert claims for

 repairs under the contract by failing to give Brinkmann prompt

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

 performing the repair work itself.

                              II.     Analysis


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

  judgment and applying the accrual provisions of the contract rather

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

  2016. It reasons that the contractual limitations contained in

  section 13.7.1.1 of the contract are void as against public policy

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

  contract modification was permissible and that all claims accrued

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

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

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

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

  legislative history demonstrates that Broomfield is not the type of

  “residential property owner” the HPA was intended to protect

  because it is a commercial entity.

                         A.   Standard of Review

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

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

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

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

  the supporting documentation show that no genuine issue of


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

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

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

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

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

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

  weight of evidence when determining a motion for summary

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

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

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

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

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

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

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

¶ 12   Additionally, both contractual interpretation and statutory

  interpretation present questions of law that we review de novo.

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

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

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




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

  de novo).

                     B.    Accrual Dates Comparison

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

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

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

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

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

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

  discovered.

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

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

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

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

  reasonable diligence should have been discovered. It is undisputed

  that the first physical manifestations of a defect in the building

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

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

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

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


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

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

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

  sixth year after substantial completion of the improvement to real

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

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

  the claim accrual date.

                     C.     Homeowner Protection Act

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

  preserve adequate rights and remedies for residential property

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

  2016. It provides in relevant part:

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


  § 13-20-806(7)(a), C.R.S. 2016.



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

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

  claims accrue by eliminating the time for discovery of the defect

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

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

  is void as against public policy under the HPA.

¶ 17   To determine whether Broomfield is a “residential property

  owner” we employ the tenets of statutory construction. In

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

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

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

  statutory language, giving words and phrases their plain and

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

  read words and phrases in context and construe them according to

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

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

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

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

  we interpret the statute according to its plain and ordinary

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


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

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

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

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

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

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

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

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

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

  General Assembly’s intent).

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

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

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

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

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

  contained in recognized dictionaries to determine the ordinary

  meaning of words.”).



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

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

  residence. See Webster’s Third New International Dictionary 1931

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

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

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

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

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

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

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

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

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

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

¶ 20   Additionally, although CDARA does not define “residential

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

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

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

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

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

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

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


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

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

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

  residential use, including senior assisted and independent living

  residences. Moreover, the seventh amendment to the MidCities

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

  only, including senior housing.

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

  the Colorado Constitution define “residential real property” as all

  residential dwelling units and the land they are situated upon,

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

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

  consistently interpreted “residential” to mean for the purposes of

  living or dwelling. Houston v. Wilson Mesa Ranch Homeowners

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

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

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

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

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




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

  considered residential property).

¶ 22   We conclude, therefore, from the consistent dictionary

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

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

  unambiguous and means an improvement on a parcel that is used

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

  necessarily reject Brinkmann’s argument that the legislature’s

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

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

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

  term does not necessarily make the statute ambiguous. This is

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

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

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

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

  ordinary and common meaning).

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

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

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


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

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

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

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

  Brinkmann nor the plaintiffs contest that the senior residents live

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

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

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

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

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

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

  rental income from the senior residents makes the building

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

  transform residential use of property into commercial use.”

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

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

  owner,” and that the HPA applies.5


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

                                    16
                             III.   Application

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

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

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

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

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

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

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

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

  CDARA, claims for construction defects generally accrue on the date

  “the claimant or the claimant’s predecessor in interest discovers or

  in the exercise of reasonable diligence should have discovered the

  physical manifestations of a defect in the improvement which

  ultimately causes the injury.” § 13-80-104(1)(b)(I) (emphasis

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

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

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

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



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

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

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

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

  13-80-102(1). See § 13-80-104(1)(a).

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

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

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

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

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

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

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

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

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

  Hersh Cos., 30 P.3d at 225

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

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

  supervision, inspection, construction, or observation of

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

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

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


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

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

  outside of CDARA and accrues upon the discovery of the defect

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

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

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

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

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

  discovered by the exercise of reasonable diligence.”).

                         A.    Breach of Contract

¶ 29   Broomfield’s amended complaint alleged that Brinkmann

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

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

  the more restrictive accrual period of CDARA applies, we conclude

  that Broomfield’s breach of contract claim accrued upon the

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

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

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

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




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

  claim.

                         B.    Breach of Warranty

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

  obligations in addition to the general warranty and covers both

  patent defects and latent defects6 that were not active or apparent

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

  relevant here, the contract requires the owner to provide the

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

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

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

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

  during this extended applicable period, the owner must give the

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

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

  and to make a claim for breach of warranty.




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

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

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

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

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

  and all reasonable inferences from the record do not support the

  court’s finding that all repair work was completed before

  Brinkmann had an opportunity to correct the alleged defects and

  that genuine issues of material fact concerning notice and repair

  work remain. Brinkmann responds that it was not obligated to

  repair and correct latent defects unless Broomfield provided

  adequate notice of them. It reasons that because Broomfield did

  not provide adequate notice of the defects before making its own

  repairs, the trial court properly granted summary judgment. We

  conclude that genuine issues of material fact remain concerning

  whether Brinkmann was promptly notified of the latent defects and

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

  that summary judgment was improper.

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

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

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

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


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

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

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

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

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

  whether the warranty was breached. Relying on the facts contained

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

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

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

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

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

  Brinkmann to correct the defects was timely under the contract and

  provided sufficient opportunity for Brinkmann to correct them.

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

  not have been breached because it was not given a reasonable

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

  deposition testimony and on invoices issued to Broomfield by the

  architecture and engineering firm Gobbell Hays Partners, Inc.

  (GHP), indicating that some repair work occurred.




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

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

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

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

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

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

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

  on which each defect was discovered is disputed, and because

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

  we conclude, viewing the facts and reasonable inferences in the

  light most favorable to Broomfield, that factual disputes remain

  concerning whether Brinkmann received prompt notice of the

  defects under the contract and whether it had an opportunity to

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

  breach of warranty claim.

                  C.   Negligence and Negligence Per Se

¶ 36   Broomfield contends that the trial court erred in concluding

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

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

  performed design services. Brinkmann responds that summary


                                    23
  judgment was appropriate because the evidence offered by

  Broomfield does not specifically link Brinkmann to the design

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

  and because the parties offered conflicting design services evidence,

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

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

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

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

  the project — patent defects — and that the corresponding claims

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

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

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

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

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

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

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

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

  material fact remain concerning whether the alleged defects were

  patent or latent.




                                    24
¶ 39   Broomfield contends that Brinkmann was negligent in making

  certain plumbing decisions when constructing the building and that

  it unilaterally modified the design of the pipes beneath the building

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

  Fronapfel affidavit, which states that revisions to the design

  drawings, including revisions to the plumbing, were made during

  construction.

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

  activities. It relies on deposition testimony that the changes

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

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

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

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

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

  conclude it creates a question of disputed fact about whether

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

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

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

  fact may arise from the existence of conflicting permissible

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


                                    25
  reverse summary judgment on the negligence and negligence per se

  claims.

                      IV.   Patent and Latent Defects

¶ 41   Because we conclude that the statutory accrual provisions

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

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

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

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

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

  facts clearly show when a plaintiff discovered or should have

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

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

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

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

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

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

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

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

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

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


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

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

  defects were latent. Brinkmann counters that because the word

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

  court properly concluded that the majority of the defects were

  patent.

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

  defects contained in the notice of claim and concluded that the

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

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

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

  the trial court mistakenly disregarded the Fronapfel affidavit, which

  described different phases of excavation that revealed different

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

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

  were patent, leaving questions of fact unresolved.

¶ 43   Considering the evidence in the light most favorable to

  Broomfield, a genuine issue of fact remains concerning whether the

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

  fact finder to make this determination. See Park Rise Homeowners


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

  (“Applying the test of whether such defects were discoverable

  through reasonable inspection by a home buyer to the eighteen

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

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

  on its common knowledge and with a proper instruction, have

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

  trier of fact should weigh the evidence and determine which defects

  were patent and which were latent.

                           V.    Conclusion

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

  proceedings consistent with this opinion.

       JUDGE ASHBY concurs.

       JUDGE DAVIDSON specially concurs.




                                   28
       JUDGE DAVIDSON, specially concurring.

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

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

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

  §§ 13-20-806(7), -807, C.R.S. 2016.

¶ 46   The HPA prohibits as against public policy certain contractual

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

  in construction defect lawsuits. It was enacted “to preserve

  Colorado residential property owners’ legal rights and remedies,”

  and it applies to “claimants asserting claims arising out of

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

  voids the limitations provisions at issue here.

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

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

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

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

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

  from plain language a clear and unambiguous legislative intent to

  include commercial entities such as Broomfield in the scope of the

  protections of the HPA.


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

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

  they reside. See The American Heritage Dictionary of the English

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

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

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

  Because nothing in the HPA requires a different understanding,

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

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

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

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

  statute.”).

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

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

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

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

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

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

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

  in other portions of the Construction Defect Action Reform Act


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

  C.R.S. 2016.

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

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

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

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

  legislature intended the protective scope of the HPA to extend to

  Broomfield.

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

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

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

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

  from the problem addressed by the legislation).

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

  Colorado has recognized the policy need to protect the more

  unsophisticated, less knowledgeable individuals who buy them.

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

  1983). Similarly, Colorado courts have voided contractual liability

  waiver clauses as against public policy when there has been

  demonstrably unequal bargaining power between the parties. See


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

  waiver as against public policy when one party had substantially

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

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

  individuals with disparity in bargaining power in the insurance

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

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

  obvious disadvantage in bargaining power that the effect of the

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

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

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

  “cannot contractually abrogate statutory requirements reflecting the

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

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

  commercial entity and an individual where the individual was

  “competent and educated”).

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

  codification of the policy principles underlying these cases.

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

  residential property, contractual waiver clauses are void as against


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

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

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

  awareness of prior decisional law on the subject under

  consideration).

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

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

  statutory protections to, or abrogate contractual rights between,

  knowledgeable and sophisticated commercial entities with equal

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

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

  Colorado and elsewhere to protect the ability of the parties to

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

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

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

  provision in a contract between two “business entities that have

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

  solemnly convinced that an existent public policy is clearly revealed,

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

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


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

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

  public policy that protects tenants from a waiver clause is more

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

  under a commercial lease.”).

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

  contractual rights between sellers and purchasers of homes as

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

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

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

  should be construed narrowly — that is, to exclude commercial

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

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

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

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

  would otherwise be available under the common law, it must

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

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

  meaning of “residential property owner” that the legislature

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


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

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

  instructive.

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

  overwhelming impetus for the bill was the plight of the individual

  homeowner — the problem was that homeowners were being forced

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

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

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

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

  don’t buy a house.”).

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

  hearings show that while the effect of the proposed legislation was

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

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

  be protected in that transaction was not.

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

  discussion of the impact of the proposed bill on the development

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

  including affordable housing projects and senior living facilities


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

  are not situated like vulnerable homeowners “buying and

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

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

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

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

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

  assumed as a given in the discussions that a purchaser of

  “residential property” included not just an individual homeowner,

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

  of mixed-use and multi-family properties.

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

  certain provisions of form American Institute of Architects

  residential purchase and sale contracts, such as those at issue

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

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

  type or nature of individual or entity benefiting from this protection

  on the purchaser side of the transaction.

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

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


                                    36
  protections of the proposed bill extended significantly beyond the

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

  change any language in response.

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

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

  regardless of the fact that the homeowner is a sophisticated

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

  legislative intent not only from the statutory language, but also

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

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

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

  the legislature by examining the legislative history as well as the

  social context in which the underlying bill was passed).




                                    37
APPENDIX 1
     12.2.2 AFTER FINAL COMPLETION

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

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

promptly correct any Work that is found, within the applicable

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

Contract Documents. Except for latent defects, the applicable

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

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

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

of an applicable special warranty required by the Contract

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

or apparent by reasonable inspection during the course of

construction or before Final Completion or before the end of the

warranty period is discovered, then the applicable period shall be

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

contractor shall correct all non-compliant Work promptly unless the

Owner has previously given the Contractor an express written

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

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

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

Contractor an opportunity to make the correction, the Owner

waives the rights to require correction by the Contractor and to

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

correct nonconforming Work within a reasonable time during that

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

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

PERIOD

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

occurring prior to the relevant date of substantial Completion, any

applicable statute of limitations shall commence to run and any

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

all events not later than such date of Substantial Completion;

     .2 Between Substantial Completion and Final Certificate for

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

relevant date of Substantial Completion and prior to the issuance of

the final Certificate for Payment, any applicable statute of

limitations shall commence and run and any alleged cause of action

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

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

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

act occurring after the relevant date of issuance of the final

Certificate for Payment, any applicable statute of limitations shall

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

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

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

Work or failure to correct the Work by the Contractor under

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

failure to perform any duty or obligation by the Contractor or

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

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