The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
May 3, 2018
2018COA66
No. 18CA0018, Curry v. Zag Built LLC — Civil Procedure —
Process — Time Limit for Service; Construction Law —
Construction Defect Action Reform Act — Notice of Claim
Process
A division of the court of appeals interprets and applies (1)
C.R.C.P. 4(m), concerning what happens when a plaintiff does not
serve process on a defendant within sixty-three days of when the
complaint was filed; and (2) section 13-20-803.5(9), C.R.S. 2017, of
the Construction Defect Action Reform Act, which stays a filed case
until the plaintiff satisfies the Act’s notice-of-claim procedure.
The division concludes that C.R.C.P. 4(m) does not require a
trial court to dismiss a case if plaintiffs do not serve defendants
within sixty-three days of when the plaintiff filed a complaint.
Instead, if the court is contemplating dismissing the case within
that sixty-three day period, it must provide the plaintiff with notice
that it is contemplating dismissing the case and give the plaintiff an
opportunity to show good cause why the court should not dismiss
the case. If the plaintiff shows good cause, the court must extend
the deadline. But, if the plaintiff does not show good cause, the
court has the discretion to (1) dismiss the case without prejudice; or
(2) order that the plaintiff serve the defendant within a specified
time.
The division also concludes that the Construction Defect
Action Reform Act does not require a plaintiff to complete the
notice-of-claim procedure in section 13-20-803.5 before filing the
claim. The division determines, instead, that section
13-20-803.5(9) of the Act contemplates the situation in which the
plaintiff may file a claim in court before sending a notice of claim to
prospective defendants. Finally, the division concludes that, for the
purpose of section 13-20-803.5(9), a case generally commences
when the plaintiff files the complaints in court.
COLORADO COURT OF APPEALS 2018COA66
Court of Appeals No. 18CA0018
Mesa County District Court No. 15CV30428
Honorable Gretchen B. Larson, Judge
Brock Curry and Lora Curry,
Plaintiffs-Appellees,
v.
Zag Built LLC and Mike Zagrzebski,
Defendants-Appellants.
ORDER AFFIRMED AND CASE
REMANDED WITH DIRECTIONS
Division VII
Opinion by JUDGE BERNARD
Berger and Freyre, JJ., concur
Announced May 3, 2018
Hall & Evans, L.L.C., Todd H. Fleckenstein, Matthew J. Hegarty, Michael A.
Paul, Denver, Colorado, for Plaintiffs-Appellees
Wegener, Scarborough, Younge & Hockensmith, LLP, Benjamin M. Wegener,
Grand Junction, Colorado, for Defendants-Appellants
¶1 This appeal presents us with two inquiries.
¶2 The first inquiry requires us to figure out how we should apply
C.R.C.P. 4(m), which has only been in effect for about five years. It
states as follows:
If a defendant is not served within 63 days
(nine weeks) after the complaint is filed, the
court--on motion or on its own after notice to
the plaintiff--shall dismiss the action without
prejudice against that defendant or order that
service be made within a specified time. But if
the plaintiff shows good cause for the failure,
the court shall extend the time for service for
an appropriate period.
Id.
¶3 Does this Rule automatically require a trial court to dismiss a
case if a plaintiff does not serve a defendant within sixty-three days
of when the plaintiff filed the complaint and the plaintiff has not
shown good cause to explain the lack of service? We answer this
question “no.” Instead, applying the plain language of Rule 4(m),
we conclude that a court has two options if a plaintiff has not
served a defendant and the plaintiff has not explained the lack of
service by demonstrating good cause: the court may dismiss the
case without prejudice or it may order that the plaintiff serve the
defendant within a specified time.
1
¶4 The second inquiry involves the Construction Defect Action
Reform Act, sections 13-20-801 to -808, C.R.S. 2017. (When we
discuss this statute generally, we will simply refer to it as the Act.)
Section 13-20-805, C.R.S. 2017, concerns tolling of statutes of
limitation and states as follows:
If a notice of claim is sent 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
¶5 Section 13-20-803.5, C.R.S. 2017, describes the
notice-of-claim process. Does section 805 mean that a plaintiff has
to complete the notice-of-claim process described in subsection
803.5 before filing a claim? We answer this question “no.” In
section 13-20-803.5(9), the Act contemplates the situation in which
a plaintiff may file a claim in court before sending a notice of claim
to a prospective defendant. Subsection 803.5(9) states that “[a]ny
action commenced by a claimant who fails to comply with the
requirements of this section shall be stayed, which stay shall
2
remain in effect until the claimant has complied with the
requirements of this section.”
¶6 When does a case commence for the purposes of subsection
803.5(9)? We conclude that a case generally commences when a
plaintiff files its complaints in court.
¶7 Beginning the narrative of this case, these two inquiries arose
in a lawsuit that involved the Act. In 2013, defendants Zag Built
LLC and its owner, Mike Zagrzebski, to whom we will refer
collectively as Zag Built, built a house for Brock Curry and Lora
Curry, to whom we will refer as the Currys. Shortly after the
Currys moved into the house in July 2013, they started noticing
signs of damage, such as cracks in the drywall and “racked,” or
sagging, doors. They filed a complaint, which named Zag Built and
some others as defendants and which cited the Act, in late June
2015. (The other defendants are not parties to this appeal.)
¶8 Zag Built submits that (1) the Currys’ claim accrued, at the
latest, in early January 2014; (2) section 13-80-104(1)(a), C.R.S.
2017, states that claims under the Act are subject to the statute of
limitations found in section 13-80-102, C.R.S. 2017; and (3) under
section 13-80-102, the appropriate statute of limitations for this
3
case was, therefore, two years. We will assume, for the purposes of
our discussion, that the Currys’ claim accrued in early January
2014.
¶9 Late June 2015 is obviously within the two-year window of the
pertinent statute of limitations. So what is the problem, according
to Zag Built? Zag Built submits that the Currys’ filing of a
complaint in late June 2015 was a nullity because the Currys did
not serve Zag Built with process within sixty-three days of late June
2015. According to Zag Built, the trial court therefore should have,
right then and there, dismissed the case without prejudice. Even
though the court did not do so, it is Zag Built’s position that the
late June 2015 complaint had not commenced the case for
purposes of subsection 803.5(9); in other words, there was no case
in late June 2015.
¶ 10 According to Zag Built, the Currys did not take any action to
commence the case until they filed an amended complaint in
mid-May 2016, which was obviously more than two years after the
early January 2014 date on which the claim accrued. The trial
court should therefore have dismissed the case with prejudice, Zag
4
built says, because the Currys’ claim was, by then, barred by the
statute of limitations.
¶ 11 Zag Built raised these points in the trial court, via a motion for
summary judgment and in a petition for C.A.R. 4.2 review that it
filed in the trial court. The court disagreed with Zag Built’s
position.
¶ 12 We granted the Zag Built’s petition under C.A.R. 4.2 for
interlocutory review of the trial court’s order. We now affirm
because we disagree with Zag Built’s contentions.
I. Background and Procedural History
¶ 13 Taking up our narrative again, the Currys filed a document
that they described as a “status report” in mid-September 2015.
The report stated that
they had filed their complaint “in order to preserve the
applicable statute of limitations”;
the claims raised in the complaint “likely f[e]ll under” the
Act, which required them “to engage in [a] [n]otice of
[c]laim process”;
they had retained an expert to review the alleged defects,
and they were “attempting to coordinate with [Zag Built]
5
with regard to the [n]otice of [c]laim and related
inspection process”; and
they asked the court for “an additional 120 days to
engage in and complete the [n]otice of [c]laim process,
before [requiring them] . . . to effectuate service of
process” on Zag Built.
¶ 14 Not having heard from the trial court, the Currys did not file
anything else until the beginning of March 2016. (The time between
mid-September and the beginning of March was obviously more
than 120 days.) They then submitted an update to the status
report; they had not filed anything else after they had filed the
status report in September. They reported that their expert had
“complete[d] the inspection and review process,” and they attached
a copy of the expert’s report.
¶ 15 The update also stated that they would continue pursuing a
“notice of claim” process. But, they added, if that process proved to
be futile, they would, within ninety days, “proceed forthwith with
formal service upon defendants, and proceed with litigation of this
matter” within ninety days.
6
¶ 16 The trial court did not do anything in response to either the
status report or the update.
¶ 17 In mid-May 2016, the Currys filed a second update. They
informed the court that they had sent out notices of claim, but that
Zag Built had not “requested to perform an inspection of the subject
property.”
¶ 18 They filed an amended complaint at the same time. They said
that they would serve it on Zag Built “in the very near future.”
¶ 19 They served Zag Built in late May. (We note that the return of
service is not in the appellate record, but Zag Built admits that it
was served.)
¶ 20 In early July 2017, Zag Built filed a motion for summary
judgment. It contended that the trial court should dismiss the case
for two reasons.
1. Citing Rule 4(m), Zag Built asserted that the Currys had
not served it within sixty-three days of when they had
filed the original complaint. And the Currys had not
shown that there was good cause to allow them to serve
Zag Built more than sixty-three days after they had filed
the complaint.
7
2. The statute of limitations had already run because the
Currys had not complied with the Act’s notice-of-claim
procedures for more than two years after their claim
against Zag Built had accrued.
¶ 21 The trial court denied the motion. It decided that
a provision of the Act automatically stayed the case when
the Currys filed their original complaint toward the end
of June 2015;
this statutory stay lasted until mid-April 2016;
“the necessity of complying with [the Act] would have
constituted good cause for an extension of time under
which to serve defendant pursuant” to Rule 4(m); and
the statute of limitations did not expire because “[t]he
complaint was filed within the two-year statute of
limitations period.”
II. Standard of Review and General Legal Principles
¶ 22 This case touches on three kinds of issues: (1) a trial court’s
decision to deny a motion for summary judgment; (2) the
interpretation of a rule of civil procedure; and (3) the interpretation
of statutes. We review each of these issues de novo. Goodman v.
8
Heritage Builders, Inc., 2017 CO 13, ¶ 5 (interpreting statutes);
Pierson v. Black Canyon Aggregates, Inc.,
48 P.3d 1215, 1218 (Colo.
2002)(denying summary judgment); Maldonado v. Pratt,
2016 COA
171, ¶ 15 (interpreting rules of civil procedure).
¶ 23 Turning to the general principles that guide our de novo review
of these issues, we observe the following:
“A court may grant summary judgment if the plaintiff’s
claim is barred by the governing statute of limitations,”
but it “cannot grant summary judgment on this basis if
there are disputed issues of fact about when the statute
of limitations began running.” Colo. Pool Sys., Inc. v.
Scottsdale Ins. Co., 2012 COA 178, ¶ 67 (cert. granted in
part Sept. 3, 2013).
“We apply statutory construction principles to procedural
rules,” and we therefore interpret them “according to
[their] commonly understood and accepted meaning,
otherwise known as [their] plain language.” Johnson v.
VCG Rests. Denver, Inc., 2015 COA 179, ¶ 8. When
interpreting rules of civil procedure, we must “construe
them liberally to effectuate their objective to secure the
9
just, speedy, and inexpensive determination of every case
and their truth-seeking purpose.” DCP Midstream, LP v.
Anadarko Petroleum Corp., 2013 CO 36, ¶ 24.
When we interpret statutes, we must ascertain and give
effect to the legislature’s intent. Colo. Dep’t of Revenue v.
Creager Mercantile Co., 2017 CO 41M, ¶ 16. “We
construe the entire statutory scheme to give consistent,
harmonious, and sensible effect to all parts,” and “we
give effect to words and phrases according to their plain
and ordinary meaning.” Denver Post Corp. v. Ritter, 255
P.3d 1083, 1089 (Colo. 2011). If a statute’s language is
clear, we apply it as the legislature wrote it. Id. But, “[i]f
the statutory language is ambiguous, we may use other
tools of statutory interpretation to determine the General
Assembly’s intent.” Id.
III. The Act
¶ 24 The legislature passed the Act “for the purpose of streamlining
construction defect litigation.” CLPF-Parkridge One, L.P. v. Harwell
Invs., Inc., 105 P.3d 658, 664 (Colo. 2005).
10
¶ 25 In 2003, the legislature amended the Act to add section
13-20-803.5, which created a “notice of claim process.” The
notice-of-claim process is essentially an alternative dispute
resolution mechanism. See Melssen v. Auto-Owners Ins. Co., 2012
COA 102, ¶ 31. As is pertinent to our analysis, it provides that
the plaintiff “shall send or deliver a written notice of
claim to the construction professional” “[n]o later than
seventy-five days before filing an action.”
§ 13-20-803.5(1);
the construction professional has thirty days to complete
a property inspection after receiving the notice.
§ 13-20-803.5(2);
the construction professional has thirty days after the
inspection to make an offer of settlement.
§ 13-20-803.5(3);
the claimant has fifteen days after the offer of settlement
to accept or “the offer shall be deemed to have been
rejected.” § 13-20-803.5(4); and
“[i]f no offer is made by the construction professional or if
the claimant rejects an offer, the claimant may bring a[]
11
[civil action in district court] against the construction
professional . . . .” § 13-20-803.5(6).
IV. Rule 4(m)
¶ 26 Zag Built contends that the trial court erred when it did not
dismiss the Currys’ case under Rule 4(m). We disagree.
A. Waiver
¶ 27 The Currys contend that Zag Built waived this issue because it
waited too long to raise it. They rely on Cervi v. Town of Greenwood
Village, 147 Colo. 190, 193-94,
362 P.2d 1050, 1053 (1961), in
which our supreme court held that the defendants had waived their
laches argument because they had helped “nurse[] the case along”
for over four years.
Id. at 193,
362 P.2d at 1052. Indeed, the
defendants had “acquiesced in and at times instigated the
delays . . . .”
Id. at 195,
362 P.2d at 1053. For example, the
defendants had negotiated with the plaintiffs to settle the case, and
they had asked the trial court to postpone the trial several times.
Id. at 194,
362 P.2d at 1053.
¶ 28 The record in this case, unlike the record in Cervi, does not
indicate that Zag Built did anything to acquiesce in or to instigate
any of the delay. For example, Zag Built did not ask the trial court
12
to delay any of the proceedings. We therefore conclude that Zag
Built did not waive this issue.
B. Analysis
¶ 29 Zag Built contends that the plain language of Rule 4(m) (1)
requires a trial court to dismiss a case if the defendant has not
been served within sixty-three days of when the complaint was filed;
unless (2) the plaintiff shows good cause why the defendant was not
served within those sixty-three days; and (3) the trial court finds
good cause at the same time that it extends the time to serve the
defendant. We disagree.
¶ 30 The Colorado Supreme Court added Rule 4(m) to the Colorado
Rules of Civil Procedure in 2013. Rule Change 2013(12), Colorado
Rules of Civil Procedure (Amended and Adopted by the Court En
Banc, Sept. 5, 2016), https://perma.cc/964J-7DYN. Before the
court adopted Rule 4(m), the Rules of Civil Procedure did not
provide a time limit for when plaintiffs had to serve defendants.
Malm v. Villegas, 2015 CO 4, ¶ 10. Rather, a trial court could
dismiss a complaint under C.R.C.P. 41(b)(1) “if service on the
opposing party was not had within a reasonable time after
commencing an action by filing.” Id. at ¶ 11.
13
¶ 31 But, since 1983, the Federal Rules of Civil Procedure have
featured a provision similar to Rule 4(m). See Henderson v. United
States, 517 U.S. 654, 661 (1996). Fed. R. Civ. P. 4(m) is nearly
identical to our own rule, except for the number of days. See Fed.
R. Civ. P. 4(m)(noting the current time limit of ninety days, which
became effective in 2015). When our rule is substantially similar to
a federal rule, we may look to federal authority for guidance in
interpreting our rule. Benton v. Adams,
56 P.3d 81, 86 (Colo.
2002).
¶ 32 In Espinoza v. United States,
52 F.3d 838, 841 (10th Cir.
1995), the Tenth Circuit provided guidance, in the form of a
three-step analysis, on how trial courts should apply Fed. R. Civ. P.
4(m). Initially, a court must decide whether a plaintiff has shown
good cause for why it has not served a defendant within the period
established by the rule.
Id. Then, if the plaintiff establishes good
cause, it is “entitled to a mandatory extension of time.”
Id. Last, if
the plaintiff does not establish good cause, then the court has two
options. It can either give the plaintiff additional time to serve the
defendant, or it can dismiss the complaint without prejudice.
Id.
14
¶ 33 Before the court can apply this analysis, it must give the
plaintiff notice that it is going to do so. See Sanders v. Sw. Bell Tel.,
L.P., 544 F.3d 1101, 1111 (10th Cir. 2008). This preliminary notice
requirement “affords the plaintiff the opportunity to show good
cause for improper service” or it allows it to establish that it “did, in
fact, serve” the defendant.
Id. A court abuses its discretion if it
dismisses a complaint without giving the plaintiff notice and an
opportunity to respond.
Id.
¶ 34 In this case, the Currys filed their complaint in late June
2015. C.R.C.P. 4(m) therefore required them to serve Zag Built on
or before late August 2015. But, the Currys did not serve Zag Built
within that period, and they did not notify the court that they had
not done so. Yet, importantly, the trial court did not inform the
Currys that it was considering dismissing the case without
prejudice because they had not yet served Zag Built.
¶ 35 Did the trial court err when it did not dismiss the complaint,
on its own motion, in late August 2015 under Rule 4(m)? We do not
think so, for two reasons.
¶ 36 First, the plain language of Rule 4(m), see Johnson, ¶ 8, gives
a court discretion because it provides the court with three options.
15
See Bruce W. Higley, D.D.S., M.S., P.A. Defined Benefit Annuity Plan
v. Kidder, Peabody & Co., 920 P.2d 884, 891 (Colo. App. 1996)(“To
say that a court has discretion in resolving an issue means that it
has the power to choose between two or more courses of action and
that it is therefore not bound in all cases to select one over the
other.”). The court can
give the plaintiff notice that it is contemplating
dismissing the case for lack of service and ask the
plaintiff to show good cause why it should not, see
Sanders, 544 F.3d at 1111; Espinoza,
52 F.3d at 841;
“order[] that service be made within a specified time[,]”
see Espinoza, 52 F.3d at 841; or
dismiss the case without prejudice after having given the
plaintiff notice, see id.
In other words, Rule 4(m)’s “sixty-three-day period for effecting
service is not a hard deadline.” Taylor v. HCA-HealthONE LLC,
2018
COA 29, ¶ 47.
¶ 37 Second, the trial court did not give the Currys notice during
the original sixty-three-day period that it was considering
dismissing the case. Providing notice to a plaintiff is a condition
16
precedent to a trial court’s decision to dismiss a case. Sanders, 544
F.3d at 1111; see also Taylor, ¶ 23 (“[W]e read the sixty-three-day
deadline [in Rule 4(m)] as a condition precedent only to dismissal or
a new deadline.”). Without such notice, the trial court is unable to
evaluate why the plaintiff did not serve the defendant within
sixty-three days. See Sanders,
544 F.3d at 1111 (stating that “the
district court did not give the plaintiffs an opportunity to argue that
. . . they had good cause not to” serve defendant outside the time
limit in Fed. R. Civ. P. 4(m)). Because the trial court did not give
the Currys notice, they did not know that they needed to supply the
court with good cause. This means that the trial court did not err
when it did not dismiss the case in late August 2015, sixty-three
days after the Currys had filed their complaint.
¶ 38 In reaching this conclusion, we reject Zag Built’s assertion
that a general order, such as a delay reduction order, would be
sufficient notice under C.R.C.P. 4(m). The division in Taylor
observed that “[t]he purpose of the notice is to spur counsel to
action, with a warning that the window for obtaining service is
closing and that a failure to meet the deadline might have dire
consequences.” Id. at ¶ 26. The division therefore concluded that
17
“[a] boilerplate delay reduction order issued within a matter of days
of the filing date may not serve the rule’s intended purpose.” Id.
¶ 39 As we indicated above, Rule 4(m)’s plain language, as well as
the case law construing its federal counterpart, convinces us that a
court’s finding of good cause is only one mechanism to extend the
service-of-process period. See Espinoza, 52 F.3d at 841. Indeed, a
court can extend the period to serve a defendant “even if the
plaintiff has no excuse at all.” United States v. McLaughlin,
470
F.3d 698, 701 (3d Cir. 2006).
¶ 40 Up to this point, we have concluded that Rule 4(m) did not
automatically require the trial court to dismiss this case, and it did
not require the trial court to dismiss the case because the Currys
did not show good cause. The court still had discretion to choose
between the two remaining Rule 4(m) options: it could order the
Currys to serve defendants within a specified time or it could
dismiss the case without prejudice.
¶ 41 But this case languished for almost a year without the court
taking any action. Does that mean that the trial court erred? See
Taylor, ¶ 25 (“We . . . conclude that [Rule 4(m)] requires notice
before dismissal, but does not require notice after expiration of the
18
service deadline.”). We conclude that it did not because section
13-20-803.5(9) stayed the case until mid-April 2016.
¶ 42 How can this be? The trial court stated, in its order denying
Zag Built’s summary judgment motion, that the notice-of-claim
process “ha[d] not been complied with before the case [had been]
filed.” Subsection 803.5(9) therefore “required” the court “to stay
the proceedings until the process was completed.” And, as the trial
court observed, subsection 803.5(9) stayed the entire “proceedings.”
This meant, as is pertinent to our analysis, that it stayed the
Currys’ obligation to serve Zag Built under Rule 4(m) within
sixty-three days.
¶ 43 We conclude that the trial court applied subsection 803.5(9)
correctly. Because of subsection 803.5(9), a court must stay a case
if a plaintiff files a complaint before completing the notice-of-claim
process. We further conclude that, by using the word “shall,” the
legislature intended that such stays would be mandatory. See
Nowak v. Suthers, 2014 CO 14, ¶ 24. And we know that the Act
does not require a plaintiff to include a statement in its complaint
that it has already complied with the notice-of-claim process.
Land-Wells v. Rain Way Sprinkler & Landscape, LLC,
187 P.3d
19
1152, 1154 (Colo. App. 2008)(The Act does “not require [the]
plaintiff to prove anything more than the elements of her common
law negligence claim . . . .”).
¶ 44 We recognize that the Currys stated in their original complaint
that they had “met all [of the Act’s] conditions and requirements.”
This misstatement apparently indicated that the Currys had
complied with the Act’s notice-of-claim procedures. We know,
however, that they had not done so. But we do not think that this
misstatement makes any difference to this case’s outcome. As we
have recognized, see
id., the Act did not require the Currys to
inform the court that they had complied with the notice-of-claim
procedures.
¶ 45 (We do not reach the issue whether the misstatement would
have given the trial court authority to dismiss the case under Rule
4(m). We have already decided that the court could not have done
so without notifying the Currys. And, because the court did not
send out such notice, the effect of the misstatement on this case is,
by now, a moot point.)
¶ 46 In mid-September 2015, the status report informed the trial
court that the Currys had not finished the notice-of-claim process.
20
As a result, we conclude that section 13-20-803.5(9) automatically
stayed the case. And, once the automatic stay applied, the case
could not move forward until the trial court had lifted it.
¶ 47 The following authority supports our conclusion.
¶ 48 First, a stay “stops all progress in the lawsuit,” and it
“preserves the status quo.” Monatt v. Pioneer Astro Indus., Inc., 42
Colo. App. 265, 266,
592 P.2d 1352, 1354 (1979).
¶ 49 Second, the Act provides that the stay “shall remain in effect
until” the notice-of-claim process is completed. § 13-20-803.5(9).
In this case, the trial court lifted the stay, finding that it had
expired in mid-April, a date that was thirty days after the Currys
had sent the notice of claim and Zag Built had not asked to inspect
the house. § 13-20-803.5(2). Once the court lifted the stay, the
case could proceed from the point where it had left off. Monatt,
42
Colo. App. at 266,
592 P.2d at 1354.
¶ 50 Third, once the court lifted the stay, Rule 4(m)’s
sixty-three-day time limit began to run again. Ultimately, the
Currys served Zag Built in late May 2016, or forty-one days after
the court had lifted the stay.
21
¶ 51 Fourth, Malm, on which Zag Built relies, does not persuade us
to reach a different result. Malm was based on a case that the
plaintiff had filed in 2005, or years before Rule 4(m) came into
existence.
¶ 52 In Malm, ¶ 17, the supreme court concluded that a plaintiff’s
inability to serve a defendant for seven-and-one-half years was
“unreasonable” because the plaintiff could not establish either that
(1) the defendant had engaged in “wrongful conduct”; or (2) there
had been “some formal impediment to service.” But Malm is
inapplicable because the supreme court’s whole analysis focused on
whether a delay of service was “reasonable” under C.R.C.P. 41(b)(2),
which dealt generally with a party’s failure to prosecute a case. Id.
at ¶ 11 (noting that, before the supreme court adopted Rule 4(m), a
trial court could dismiss a complaint “for failure to prosecute if
service on the opposing party was not had within a reasonable time
after commencing an action by filing”)(emphasis added).
¶ 53 The Malm court explicitly declined to apply Rule 4(m). Id. at
¶ 19 (“[I]t is unnecessary for us to resolve the applicability of [Rule
4(m)] to this case . . . .”). And, as we have observed, Rule 4(m)
established a new procedure that governs how a court decides
22
whether it should dismiss a complaint because a plaintiff has not
timely served a defendant.
¶ 54 Fifth, even if we were to apply Malm to this case, we would
nonetheless reach the same result. Malm noted that, “within some
initial period, measured in days rather than years, service after
filing will be treated as presumptively reasonable.” Id. at ¶ 19.
Malm’s reasonableness analysis therefore only pertains to cases of
“longer delay.” Id. Relying on Malm, we conclude that the delay in
service in this case was presumptively reasonable.
¶ 55 As a point of reference, the Malm court pointed to the 116-day
period between filing and service of process in Garcia v. Schneider
Energy Services, Inc., 2012 CO 62, as an example of a
presumptively reasonable delay. Although the delay in this case
was nearly eleven months, this calculation did not take into
account the statutorily required stay. Once the period consumed
by the stay is deducted from the eleven months, the time between
the filing of the complaint and the entry of the stay amounted to
eighty days. And the time from the expiration of the stay to service
on Zag Built amounted to an additional forty-one days. So the total
delay was only 121 days, a mere five days longer than the delay in
23
Garcia, which the supreme court considered “presumptively
reasonable.” Malm, ¶ 19.
¶ 56 Sixth, we are not persuaded by Maldonado, on which Zag Built
also relies. In Maldonado, the plaintiffs amended their complaint to
add a new party under C.R.C.P. 15(c). That rule provided that an
amended complaint related back to the date of the original
complaint if the plaintiff had satisfied a number of conditions
“within the period provided by Rule 4(m).” Maldonado, ¶ 21.
¶ 57 The Maldonado division concluded that the plaintiffs had not
satisfied these conditions in time. Id. at ¶ 32. And, because the
plaintiffs had amended their complaint after the statute of
limitations had expired, the division determined that the additional
party should be dismissed. Id. But we think that Maldonado is
inapposite because it relied on C.R.C.P. 15(c)’s relation-back
doctrine, which does not apply to this case because the Currys
named Zag Built in their original complaint.
¶ 58 Based on the preceding analysis, we do not need to address
Zag Built’s contentions that (1) the Currys did not establish good
cause for the purposes of Rule 4(m); and (2) the trial court did not
make sufficient findings that the Currys had shown good cause.
24
V. Notice of Claim and the Statute of Limitations
¶ 59 Zag Built contends the trial court should have dismissed this
case because the Currys did not send it a notice of claim until after
the statute of limitations had run. We disagree.
A. Preservation
¶ 60 The Currys contend that Zag Built did not preserve this
contention because it did not refer to section “13-80-105,” C.R.S.
2017, in its summary judgment motion. But this statute does not
apply to this case because it concerns “[l]imitations of actions
against land surveyors.” Id. Based on the context, we think,
instead, that the Currys intended to refer to section 805, which
describes tolling under the Act.
¶ 61 To preserve a contention, a party does not have to cite a
specific statute, but it must at least raise the issue to the trial
court, see Maslak v. Town of Vail, 2015 COA 2, ¶¶ 11-12, so that
the court has an opportunity to rule on it, see Estate of Stevenson v.
Hollywood Bar & Cafe, Inc.,
832 P.2d 718, 721 n.5 (Colo. 1992).
¶ 62 We agree that Zag Built did not cite section 805 in its motion
for summary judgment. But it raised the tolling issue, albeit
obliquely and fleetingly, in its summary judgment motion. The
25
motion contained a chart that summarized events on dates that Zag
Built thought were relevant to calculating when the statute of
limitations had run. For one of these dates, in early March 2016,
the chart described the following event: “Expiration of statute of
limitations (assuming 63 day period does not toll statute of
limitations).” (Emphasis added.)
¶ 63 In response, the trial court discussed tolling in its summary
judgment order. For example, it recognized that (1) Zag Built had
“argue[d] that[,] even if the timely filing of the original [c]omplaint
and [j]ury demand in conjunction with Rule 4(m) tolled the statute
of limitations for an additional 63 days” after the early January
2016 deadline; then (2) the Currys “were still required to serve” Zag
Built “with a copy of the [c]omplaint before the statute of limitations
expired” in early March 2016, which would have been sixty-three
days after the early January 2016 deadline. (Emphasis supplied.)
¶ 64 We therefore conclude that Zag Built’s minimal reference to
tolling in the summary judgment motion was just enough to
preserve the tolling issue. See Rael v. People, 2017 CO 67, ¶ 17
(“We do not require that parties use ‘talismanic language’ to
preserve an argument for appeal.”); Maslak v. Town of Vail, 2015
26
COA 2, ¶ 12 (because the substance of the issue was presented to
the trial court, the addition of a statutory reference on appeal
“simply provide[d] additional support for the[] argument”); Grohn v.
Sisters of Charity Health Servs. Colo.,
960 P.2d 722, 727 (Colo. App.
1998)(noting that (1) an argument is “not properly before an
appellate court where the opposing party was unable to respond”;
and (2) an argument is not properly before an appellate court if a
trial court did not have an opportunity to make “findings or
conclusions”).
¶ 65 We note that Zag Built also asserts that it preserved the tolling
issue because it had specifically referred to section 805 in its
motion to certify the trial court’s order for this interlocutory appeal.
We disagree for the following reasons.
¶ 66 First, C.A.R. 4.2(c) states that the “party seeking to appeal
shall move for certification . . . of the order to be appealed . . . .”
This language suggests that new issues should not be raised in the
motion for certification.
¶ 67 Second, allowing one party to raise new issues in the motion
for certification creates procedural problems for the other party.
27
What Rule governs the other party’s response? C.R.C.P. 56? Some
other rule?
¶ 68 Third, raising new issues in a motion for certification is akin to
raising new issues in a motion to reconsider. A trial court would
not “abuse its discretion in declining to reconsider or reverse its
summary judgment ruling based on [a] new argument or theory”
raised in a motion to reconsider. Hice v. Lott, 223 P.3d 139, 149
(Colo. App. 2009). And would allowing one party to raise new
issues in the motion for certification be the equivalent of
authorizing a second summary judgment motion that the court of
appeals would have to litigate in the first instance?
B. Analysis
¶ 69 Zag Built’s contention goes like this:
The Act states that complying with the notice-of-claim
process is (1) a prerequisite to filing a claim; and (2) the
only way to toll the statute of limitations.
The filing of a complaint before the notice-of-claim
process is completed therefore does not (1) begin a
lawsuit; or (2) stop the statute of limitations from
running.
28
The Currys did not complete the notice-of-claim process
before they filed their complaint in mid-June 2015.
The Currys’ complaint therefore did not begin this
lawsuit or stop the statute of limitations from running.
The Currys did not complete the notice-of-claim process
until after the statute of limitations had expired.
¶ 70 We disagree with this contention for the following reasons.
¶ 71 First, the statute of limitations stops running once a case is
commenced. See Malm, ¶ 13. In Colorado, a case commences
when a plaintiff files a complaint. C.R.C.P. 3. The Currys filed their
complaint in mid-June 2015, before the statute of limitations had
expired.
¶ 72 Zag Built cites Broker House International v. Bendelow, 952
P.2d 860, 862-63 (Colo. App. 1998), for the proposition that the
statute of limitations continues to “run until all the prerequisites for
filing a case are met.” (Emphasis added.) In Broker House, the
plaintiff submitted its complaint along with a check to pay the
docketing fees.
Id. at 862. The check bounced, and the plaintiff did
not pay the filing fee until after the statute of limitations had run.
Id.
29
¶ 73 Zag Built also relies on Western Electrical Co. v. Pickett, 51
Colo. 415, 423-24,
118 P. 988, 991 (1911), in which our supreme
court held that a plaintiff had not satisfied all of the prerequisites
for filing a case because it had not paid a fee required for a foreign
corporation to prosecute a case in Colorado.
¶ 74 But there is no suggestion that the Currys did not pay a filing
fee or that it was a foreign corporation that had not paid a fee.
Rather, they satisfied the requirements for filing a complaint and,
by doing so, commenced this case.
¶ 75 More importantly, we disagree with Zag Built’s use of these
cases to establish the false premise that failing to comply with the
notice-of-claim process is the equivalent of not paying such fees.
For example, Broker House relies on a well-established proposition:
“a case cannot proceed to a determination of the issues without
payment of the docket fee.”
952 P.2d at 862. But there is nothing
well-established that links the notice-of-claim process with the
running of the statute of limitations. To the contrary, section
13-80-104, which sets out the statute of limitations for actions
against builders, does not refer to such a link.
30
¶ 76 This leads to our second point: the notice-of-claim process is
not a prerequisite to filing a complaint or commencing an action.
The general rule contained in the notice-of-claim process appears in
section 13-20-803.5(1): “No later than seventy-five days before filing
an action against a construction professional . . . a claimant shall
send or deliver a written notice of claim to the construction
professional by certified mail, return receipt requested, or by
personal service.” And the general rule is reinforced by section
13-20-803.5(6), which states that “[i]f no offer is made by a
construction professional . . . the claimant may bring an action
against the construction professional for the construction defect
claim described in the notice of claim . . . .”
¶ 77 But we think that subsection 803.5(9) creates an exception to
the general rule. Recall that it states, “Any action commenced by a
claimant who fails to comply” with the notice-of-claim procedures
“shall be stayed . . . .” § 13-20-803.5(9). In other words,
subsection 803.5(9) tells us that if a plaintiff files a complaint before
completing the notice-of-claim process, then the court will stay the
case until the plaintiff completes the process. Although the
legislature contemplated that the preferred practice would have the
31
plaintiff completing the notice-of-claim process before filing a
complaint, it also allowed for the prospect that a plaintiff would file
a complaint first. See Gonzales v. Advanced Component Sys., 949
P.2d 569, 574 (Colo. 1997)(“If separate clauses in the same
statutory scheme may be harmonized, but would be antagonistic
under a different construction, the court should adopt the
construction that results in harmony.”).
¶ 78 Third, if the Act made completion of the notice-of-claim
process a prerequisite to filing a complaint or to commencing an
action, it would require the court to dismiss a case that a plaintiff
filed before the notice-of-claim process was completed, not to stay
it. Reading the Act to require a court to dismiss a case in these
circumstances would require us to (1) ignore subsection 803.5(9);
and (2) read the statute to say something that it does not. See
Carruthers v. Carrier Access Corp.,
251 P.3d 1199, 1204 (Colo. App.
2010)(“[W]e will not interpret a statute to mean that which it does
not express.”).
¶ 79 Fourth, we conclude that satisfying the notice-of-claim process
is not a jurisdictional prerequisite to filing a complaint because a
trial court is not required to dismiss a complaint if it has been filed
32
before the notice-of-claim process has been satisfied. Generally, we
will “construe a statute to limit jurisdiction only when that
limitation is explicit.” Aviado v. Indus. Claim Appeals Office, 228
P.3d 177, 183 (Colo. App. 2009). Colorado’s Governmental
Immunity Act includes an example of such an explicit limitation. It
states that an injured party must send a notice of claim to a
governmental agency before filing a complaint. § 24-10-109, C.R.S.
2017. Sending the notice is “a jurisdictional prerequisite to any
action . . . and failure of compliance shall forever bar any such
action.” § 24-10-109(1).
¶ 80 The Act does not contain a similar bar. Rather, it provides an
explicit remedy when a plaintiff files a complaint before completing
the notice-of-claim process: a stay.
¶ 81 Fifth, Zag Built contends that (1) section 13-20-805 is the only
mechanism for tolling the statute of limitations; (2) the statute of
limitations is only tolled if a plaintiff satisfies the notice-of-claim
process; (3) the Currys did not send their notice of claim to Zag
Built until after the statute of limitations expired; and (4) the trial
court conflated the concepts of stay and tolling.
33
¶ 82 A tolling statute suspends the running of the statute of
limitations. Morrison v. Goff, 91 P.3d 1050, 1053 (Colo. 2004). So
section 805 would toll the applicable statute of limitations from the
time that a plaintiff files a notice of claim until “sixty days after the
notice of claim process” has been completed. See § 13-20-805.
¶ 83 Zag Built cites cases for the proposition that the only way that
the Currys could save their case from an abrupt end brought on by
the statute of limitations would be to rely on the tolling provision in
section 805. See, e.g., Smith v. Exec. Custom Homes, Inc.,
230 P.3d
1186 (Colo. 2010); Sopris Lodging, LLC v. Schofield Excavation, Inc.,
2016 COA 158. But those cases are not applicable to this one
because they addressed significantly different issues. Smith merely
held that the “repair doctrine” was inconsistent with the Act. Sopris
Lodging concluded that, if a defendant does not bring an indemnity
claim in a separate lawsuit, then the only method to toll the statute
of limitations would be found in section 805.
¶ 84 But, more fundamentally, Zag Built’s contention that section
805 governs the outcome of this appeal is based on an invalid
premise — that the Currys’ initial complaint, filed in late June
2015, was a nullity. We have already concluded that it was not a
34
nullity; rather, it commenced this case, and it was filed within the
statute of limitations. The concept of tolling therefore does not
apply.
¶ 85 The order is affirmed, and the case is remanded to the trial
court for further proceedings.
JUDGE BERGER and JUDGE FREYRE concur.
35
