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                                                         ADVANCE SHEET HEADNOTE
                                                                   February 27, 2017

                                        2017 CO 13

No. 16SA193, In Re Goodman v. Heritage Builders—Construction Defects—Statute of
Repose—Statute of Limitations.

       In this case, the supreme court considers the parameters for timeliness of third-

party claims in construction defect cases. The supreme court concludes that such claims

are timely, irrespective of both the two-year statute of limitations in section 13-80-102,

C.R.S. (2016), and the six-year statute of repose in section 13-80-104(1)(a), C.R.S. (2016),

so long as they are brought at any time before the ninety-day timeframe outlined in

section 13-80-104(1)(b)(II), C.R.S. (2016). Accordingly, the supreme court makes its rule

to show cause absolute.
                   The Supreme Court of the State of Colorado
                     2 East 14th Avenue • Denver, Colorado 80203


                                    2017 CO 13

                         Supreme Court Case No. 16SA193
                      Original Proceeding Pursuant to C.A.R. 21
                  Pitkin County District Court Case No. 13CV30140
                       Honorable Christopher G. Seldin, Judge

                                        In Re
                                      Plaintiff:
                                 Richard Goodman,
                                          v.
                                    Defendants:
    Heritage Builders, Inc., and Ivan Rascon d/b/a American Landscape Company,
                                         and
                               Cross-Claim Plaintiff:
                               Heritage Builders, Inc.,
                                          v.
                              Cross-Claim Defendant:
                 Ivan Rascon d/b/a American Landscape Company,
                                         and
                                Third-Party Plaintiff:
                               Heritage Builders, Inc.,
                                          v.
                              Third-Party Defendants:
Bluegreen, Inc.; Columbine Landscape Service Company, Inc.; CTL Thompson, Inc.; Loris
   and Associates, Inc.; S.D. Construction of Aspen, LLC and/or Scott Davis d/b/a SD
   Construction; Scott A. Lindenau, Architect, P.C. d/b/a Studio B Architects; Summit
        Roofing, Inc.; TJ Concrete Construction, Inc.; and Welch Excavating, Inc.


                                Rule Made Absolute
                                       en banc
                                  February 27, 2017
Attorneys for Defendant/Cross-Claim Plaintiff/Third-Party Plaintiff Heritage
Builders, Inc.:
Jaudon & Avery LLP
David H. Yun
Jared R. Ellis
  Denver, Colorado

Nathan, Bremer, Dumm & Myers, P.C.
Justin M. Curry
 Denver, Colorado

Higgins, Hopkins, McLain & Roswell, LLC
Sheri H. Roswell
Bret Cogdill
Jean Meyer
  Denver, Colorado

Attorneys for Third-Party Defendant Scott A. Lindenau Architect P.C. d/b/a Studio B
Architects:
Hall & Evans, L.L.C.
Benton J. Barton
Elizabeth K. Olson
 Denver, Colorado

Attorneys for Third-Party Defendant Bluegreen, Inc.:
The Hustead Law Firm
Patrick Q. Hustead
Ryan A. Williams
 Denver, Colorado



No appearance by or on behalf of Ivan Rascon, d/b/a American Landscape Company; TJ
Concrete Construction, Inc.; Columbine Landscape Service Company, Inc.; CTL Thompson
Inc.; Loris and Associates, Inc.; S.D. Construction of Aspen, LLC and/or Scott Davis d/b/a
SD Construction; Summit Roofing, Inc.; Welch Excavating, Inc.; Scott Davis.




CHIEF JUSTICE RICE delivered the Opinion of the Court.

                                            2
¶1     In this original proceeding, we consider whether the statute of repose in section

13-80-104(1)(a), C.R.S. (2016), bars a general contractor’s third-party claims brought in

response to a homeowner’s claim for construction defects discovered in the fifth or sixth

year following substantial completion of an improvement to real property. We hold

that such claims are timely, irrespective of both the two-year statute of limitations in

section 13-80-102, C.R.S. (2016), and the six-year statute of repose in section

13-80-104(1)(a), so long as they are brought at any time before the ninety-day timeframe

outlined in section 13-80-104(1)(b)(II).1

                            I. Facts and Procedural History

¶2     This case concerns the design and construction of a single-family residence in

Pitkin County, Colorado.      Heritage Builders, Inc. (“Heritage”) was retained as the

general contractor by the original owners of the property, Karen and Courtney Lord.

Pitkin County issued a certificate of occupancy for the home in September 2006. In

November 2011, Richard Goodman purchased the property from the Lords. Then,

sometime between March and June 2012, Goodman discovered the alleged construction

defects in the home. Goodman gave Heritage informal notice of his construction defect

claims in July 2013. Three months later, on October 8, 2013, Goodman sent a formal

notice of claim letter to Heritage pursuant to Colorado’s Construction Defect Action

Reform Act, sections 13-20-801 to -808, C.R.S. (2016). After receiving Goodman’s letter,


1For clarity, “a statute of limitation merely limits the time in which a plaintiff may bring
suit after a cause of action accrues,” whereas “a statute of repose extinguishes a cause of
action after a fixed period of time . . . regardless of when the cause of action accrued.”
2A Am. Jur. Pl. & Pr. Forms Architects § 62.

                                             3
as relevant here, Heritage then sent a notice of claim letter to subcontractors Studio B

Architects (“Studio B”) and Bluegreen, Inc. (“Bluegreen”) alleging design deficiencies at

the residence. Then, on December 20, 2013, Goodman filed the lawsuit that is the

subject of this dispute, asserting negligence against Heritage and some of its

subcontractors for defects arising out of the original construction. In response, Heritage

asserted   cross-claims   and   filed   a   third-party   complaint   against   numerous

subcontractors, including Studio B and Bluegreen.

¶3    Studio B filed a motion for summary judgment on March 10, 2016, which

Bluegreen later joined. In the motion, Studio B argued that Heritage’s claims against

them were barred by the six-year statute of repose contained in section 13-80-104(1)(a).2

On May 20, 2016, the trial court issued an order entering summary judgment in favor of

Studio B and Bluegreen. In doing so, the trial court reasoned that Heritage’s claims

against Studio B and Bluegreen arose at the earliest when Heritage received informal

notice of the alleged defects in July 2013. Because this date was more than six years

after the substantial completion of the home, the court concluded the statute of repose

barred Heritage’s claims against Studio B and Bluegreen.         The trial court further

concluded that section 13-80-104(2), an exception which effectively extends the statute

of repose by one to two years when a cause of action arises during the fifth or sixth year

after the completion of a home, did not apply. Heritage then petitioned this court for a

rule to show cause as to why the trial court’s order granting summary judgment should


2For the purposes of the summary judgment motion, the parties did not dispute that
Goodman’s claim “arose in the fifth or the sixth year” following the home’s completion.

                                             4
not be vacated. We issued an Order and Rule to Show Cause, staying the underlying

proceedings.

                                II. Original Jurisdiction

¶4     “Original relief pursuant to C.A.R. 21 is an extraordinary remedy that is limited

both in purpose and availability.” Dwyer v. State, 2015 CO 58, ¶ 4, 357 P.3d 185, 187.

That said, we “generally elect to hear C.A.R. 21 cases that raise issues of first impression

and that are of significant public importance.” Id., 357 P.3d at 187–88. This case

satisfies both criteria. We have never considered the impact of the six-year statute of

repose in section 13-80-104(1)(a) on the timeliness of third-party claims in construction

defect cases. Furthermore, this case presents an important question, as its resolution

will have a significant impact on construction defect litigation throughout the state.

                               III. Standard of Review

¶5     “Statutory interpretation involves only questions of law,” which this court

reviews de novo. Smith v. Exec. Custom Homes, Inc., 230 P.3d 1186, 1189 (Colo. 2010).

                                      IV. Analysis

¶6     This case requires us to clarify the parameters for timeliness of third-party claims

in construction defect cases. Specifically, we must determine whether the statute of

repose in section 13-80-104(1)(a) may bar third-party claims even if those claims were

brought within the timeframe outlined in section 13-80-104(1)(b)(II). We hold that it

cannot because the language of section 13-80-104(1)(b)(II) clearly indicates that third-

party claims are timely irrespective of both the statute of limitations in section 13-80-102




                                             5
and the statute of repose in section 13-80-104(1)(a) so long as the claims are brought

during the litigation or within ninety days following the date of judgment or settlement.

¶7     In interpreting statutes, a court’s objective is to effectuate the General Assembly’s

intent. CLPF-Parkridge One, L.P. v. Harwell Invs., Inc., 105 P.3d 658, 660 (Colo. 2005).

To determine legislative intent, courts first look to the statutory language itself and give

the words and phrases their ordinary and commonly accepted meaning. Smith, 230

P.3d at 1189. Where the language is clear, it is not necessary to resort to other tools of

statutory construction. Id. Instead, courts must enforce the clear statutory language as

written. Colo. Ass’n of Pub. Emps. v. Lamm, 677 P.2d 1350, 1353 (Colo. 1984). Courts

“should not presume that the legislature used language idly and with no intent that

meaning should be given to its language.” People v. J.J.H., 17 P.3d 159, 162 (Colo. 2001)

(internal quotation marks omitted).      Courts should also “reject interpretations that

render words or phrases superfluous.” People v. Cross, 127 P.3d 71, 73 (Colo. 2006).

¶8     Generally, construction defect actions are subject to a two-year statute of

limitations, § 13-80-102, and a six-year statute of repose, § 13-80-104(1)(a). Specifically,

section 13-80-104(1)(a) establishes the six-year statute of repose and provides:

       Notwithstanding any statutory provision to the contrary, all actions
       against any architect, contractor, builder or builder vendor, engineer, or
       inspector performing or furnishing the design, planning, supervision,
       inspection, construction, or observation of construction of any
       improvement to real property shall be brought within the time provided
       in section 13-80-102 after the claim for relief arises, and not thereafter, but
       in no case shall such an action be brought more than six years after the
       substantial completion of the improvement to the real property, except as
       provided in subsection (2) of this section.



                                             6
¶9     Separately, section 13-80-104(1)(b)(II) governs construction defect claims against

other parties who “may be liable to the claimant for all or part of the claimant’s liability

to a third person[.]” Specifically, that subparagraph provides:

       Notwithstanding the provisions of paragraph (a) of this subsection (1), all
       claims, . . . 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). Although third-party claims under section 13-80-104(1)(b)(II)(A)

do not arise until settlement or entry of judgment, this court has held that 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.

CLPF-Parkridge One, 105 P.3d at 665.

¶10    In a series of cases, the court of appeals has held that section 13-80-104(1)(b)(II)

has no effect on the six-year statute of repose. See Sierra Pac. Indus., Inc. v. Bradbury,

2016 COA 132, __ P.3d __; Shaw Constr., LLC v. United Builder Servs., Inc., 2012 COA

24, 296 P.3d 145; Thermo Dev., Inc. v. Cent. Masonry Corp., 195 P.3d 1166 (Colo. App.

2008). In these cases, the court found that section 13-80-104(1)(b)(II) tolls the two-year

statute of limitations, but does not toll the six-year statute of repose as to claims brought

by general contractors against subcontractors. See Sierra Pacific, ¶ 16; Shaw, ¶ 18, 296

P.3d at 150–51; Thermo, 195 P.3d at 1170. In other words, these cases held that third-


                                             7
party claims brought after the six-year statute of repose had run were barred—even if

they were brought before the ninety-day period set forth in section 13-80-104(1)(b)(II)

had expired.

¶11    We disagree with these holdings because they render the controlling language of

section 13-80-104(1)(b)(II) superfluous. Section 13-80-104(1)(b)(II) begins by stating that

it applies “[n]otwithstanding the provisions of paragraph (a) of this subsection (1)”

(emphasis added). In turn, paragraph (a) of subsection (1) both incorporates the two-

year statute of limitations and contains the six-year statute of repose for construction

defect claims. When used in a statute, “notwithstanding” is intended “to exclude—not

include—the operation of other statutes.” Theodore Roosevelt Agency, Inc. v. Gen.

Motors Acceptance Corp., 398 P.2d 965, 966 (Colo. 1965) (emphasis omitted). This is

because “[t]he word ‘Notwithstanding’ is one in opposition to, and not one of

compatibility with, another statute.” Id. Indeed, “the word ‘Notwithstanding’ actually

means ‘in spite of’ . . . .” Id. (citing Webster’s New International Dictionary (1958)); see

also Lanahan v. Chi Psi Fraternity, 175 P.3d 97, 102 (Colo. 2008) (“[T]he term

‘notwithstanding’ means excluding, in opposition to, or in spite of other statutes.”).

Consequently, the phrase “[n]otwithstanding the provisions of paragraph (a) of this

subsection (1),” plainly and unambiguously precludes the application of both the

statute of limitations in section 13-80-102 and statute of repose in section 13-80-104(1)(a)

to third-party claims made pursuant to section 13-80-104(1)(b)(II). Therefore, to the

extent that Thermo, Shaw, and Sierra held that claims brought outside of the statute of



                                             8
repose     timeframe,   but   brought   within   the   timeframe    outlined   in   section

13-80-104(1)(b)(II) are barred, they are overruled.

¶12      Instead, we hold that under section 13-80-104(1)(b)(II), third-party claims are

timely irrespective of both the two-year statute of limitations and the six-year statute of

repose so long as the claims are brought during the construction defect litigation or

within ninety days following the date of judgment or settlement. Therefore, in this case,

because Heritage brought its third-party claims against Studio B and Bluegreen prior to

any judgment or settlement, the trial court should not have granted summary judgment

in favor of Studio B and Bluegreen based on the statute of repose.3      Because we hold

that the statute of repose is irrelevant for the purposes of third-party claims brought

under section 13-80-104(1)(b)(II), we need not address whether the exception to the

statute of repose in section 13-80-104(2) allowed Goodman’s claims against Heritage to

extend beyond the six-year statute of repose, but did not allow Heritage’s third-party

claims against subcontractors.

                                     V. Conclusion

¶13      For the foregoing reasons, we make our rule to show cause absolute and instruct

the trial court to vacate the order granting summary judgment in favor of Studio B and

Bluegreen.



3 This court requested supplemental briefings from the parties. Heritage filed a motion
to strike portions of Studio B’s and Bluegreen’s supplemental briefings. Because the
disputed portions of Studio B’s and Bluegreen’s supplemental briefings do not inform
our holding today, which is limited to the timeliness of the third-party claims, we need
not consider the motion to strike.

                                             9
