ORDER RE: THIRD-PARTY DEFENDANT HUDICK EXCAVATING, INC. S MOTION TO DISMISS

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1 DISTRICT COURT, ARAPAHOE COUNTY, STATE OF COLORADO 7325 South Potomac Street Centennial, Colorado Plaintiff OLSSON ASSOCIATES, INC. v. Defendant: LTF REAL ESTATE COMPANY, INC., ET AL. DATE FILED: November 13, :52 PM CASE NUMBER: 2012CV1469 COURT USE ONLY Case No: 2012CV1469 Div.: 15 and Third-Party Plaintiff: FCA CONSTRUCTION COMPANY, LLC v. Third-Party Defendant: HUDICK EXCAVATING, INC. ORDER RE: THIRD-PARTY DEFENDANT HUDICK EXCAVATING, INC. S MOTION TO DISMISS THIS MATTER comes before the Court on the Motion of Third-Party Defendant Hudick Excavating, Inc. ( Hudick ) to dismiss Third-Party Plaintiff FCA Construction Company, LLC s ( FCA ) third-party complaint pursuant to C.R.C.P. 12(b)(5). The Court having reviewed the pleadings, the file, and the applicable legal authority, and being so advised, hereby finds and orders as follows: I. FACTUAL BACKGROUND This case arises out of certain contracts related to the installation of a detention pond at Life Time Fitness Center in Centennial, Colorado (the Project). LTF Real Estate Company, Inc. ( LTF ) hired FCA to serve as the Project s

2 general contractor. LTF also hired Olsson Associates, Inc. ( Olsson ) to provide engineering and survey services in connection with the Project. To further assist with construction of the Project, FCA hired Hudick as a subcontractor to install a geosynthetic liner and prepare the Project subgrade in accordance with the Project designs and specifications. According to FCA, Hudick, in the course of performing its work, breached its contractual obligations and damaged the Project in several significant respects. FCA, therefore, filed its original Third-Party Complaint on June 11, 2013, in federal court, asserting a breach of contract claim against Hudick for failure to perform its contractual obligations under its subcontract with FCA. Hudick then filed this Motion to Dismiss in federal court on July 8, 2013, asserting that FCA s claims are time-barred pursuant to C.R.S FCA then filed an Amended Third-Party Complaint in this Court on July 29, 2013, asserting breach of contract, breach of warranty, and declaratory judgment that holds Hudick is obligated to defend and indemnify FCA against claims that Olsson has asserted against FCA. Although unclear, Hudick apparently re-filed its Motion to Dismiss in this Court on July 17, However, Hudick s re-filed Motion to Dismiss did not address FCA s amended breach of warranty and declaratory judgment claims. On September 27, 2013, this Court bifurcated Olsson s claims against FCA and FCA s claims against Hudick into two separate actions. II. LEGAL AUTHORITY C.R.C.P. 12(b)(5) authorizes a party to move to dismiss a complaint against him for failure to state a claim upon which relief can be granted. The rule is designed to allow defendants to test the formal sufficiency of the complaint. Dorman v. Petrol Aspen, Inc., 914 P.2d 909, 911 (Colo. 1996). Such motions are viewed with disfavor, and a complaint is not to be dismissed unless it appears beyond doubt that the plaintiff cannot prove facts in support of the claim that would entitle plaintiff to relief. Id. In evaluating a Rule 12(b)(5) motion, trial courts may consider only those matters stated in the complaint and must accept all allegations of material fact as true and view the allegations in the light most favorable to the plaintiff. Town of Alma v. AZCO Constr. Inc., 10 P.3d 1256, 1259 (Colo. 2000). If the court looks to information outside the complaint, then a motion to dismiss for failure to state a claim must be treated as a motion for summary judgment. Public Service Co. of Colorado v. Van Wyk, 27 P.3d 377 (Colo. 2001). 2

3 III. ANALYSIS Hudick claims that FCA s breach of contract claim falls outside the relevant statute of limitations set forth for this type of action. Hudick asserts that C.R.S sets forth the statute of limitation specifically applicable to claims against contractors. According to Hudick s two year statute of limitations applies to this case. Furthermore, Hudick claims that, per , FCA discovered or, with the exercise of reasonable diligence, should have discovered the underlying defect on January 24, Therefore, FCA s claim is barred under the two year statute of limitations, as FCA filed its original complaint on June 11, FCA appears to concede that C.R.S governs its breach of contract action against Hudick, and that the two year statute of limitations applies. However, FCA asserts that, under the facts of this case, the statute of limitations should be tolled because of Hudick s bad faith failure to comply with the courtordered arbitration between itself and FCA. Specifically, FCA asserts that Hudick at every turn delayed and/or refused to comply with [alternative dispute resolution], until the two year limitation period had run. Whether a claim is time barred by a statute of limitations presents a question of fact and may only be decided as a matter of law when the undisputed facts clearly show that plaintiff had, or should have had the requisite information as of a particular date. Wagner v. Grange Ins. Ass n, 166 P.3d 304, 307 (Colo. App. 2007) (citing Sulca v. Allstate Ins. Co., 77 P.3d 897, 899 (Colo. App. 2003)). Hudick asserts that the statute of limitations for this action began to run on January 24, 2011, the date of a letter sent to Hudick regarding this matter. A document that is referred to in the complaint, even though not formally incorporated by reference or attached to the complaint, is not considered a matter outside the pleading for the purposes of a motion to dismiss. Walker v. Van Laningham, 148 P.3d 391, 397 (Colo. App. 2006) (citing Yadon v. Lowry, 126 P.3d 332, 336 (Colo. App. 2005)). Therefore, this Court may look at the January 24, 2011 letter to determine whether the cause accrued on this date, as it is referenced several times in FCA s Complaint. The Court, finding no attempt from FCA to prove another date on which this action accrued, holds that there is undisputed evidence that FCA s claim accrued on January 24, 2011, and is thus potentially time barred under C.R.S This Court will now address whether the relevant statute of limitations should be tolled. 3

4 A statute of limitations may be equitably tolled where defendant s wrongful conduct prevented the plaintiff from asserting his or her claims in a timely manner. Brodeur v. Am. Home Assur. Co., 169 P.3d 139, 149 (Colo. 2007); Dean Witter Reynolds, Inc. v. Hartman, 911 P.2d 1094, 1096 (Colo. 1996). This doctrine exists so that a person may not be permitted to benefit from his or her own wrongdoing. Id. at Tolling may also occur under extraordinary circumstances that make it impossible for plaintiff to file his or her claims within the statutory period. Brodeur, 169 P.3d at 149. Normally, whether a statute of limitations should be tolled is a question of fact. Olson v. State Farm Mut. Auto. Ins. Co., 174 P.3d 849, 853 (Colo. App. 2007). However, if the undisputed facts show that a plaintiff may not rely on the doctrine of equitable tolling, then a claim may be decided as a matter of law. Id.; see also Trigg v. State Farm Mut. Auto. Ins. Co., 129 P.3d 1099, 1101 (Colo. App. 2005). FCA asserts that it was Hudick s wrongful actions in delaying and resisting the arbitration process pursuant to a mandatory arbitration clause that caused FCA to file this claim after the statute of limitations had expired. However, this Court finds that a demand for arbitration by one party and subsequent refusal by another does not equitably toll the statute of limitations. FCA waited nearly two years after its demand for arbitration to file its third party claim against Hudick. FCA could have filed this action as soon as it discovered Hudick s resistance to the arbitration, or when it learned that arbitration would be futile. See also Dean Witter Reynolds, 911 P.2d at (holding that the fact that a plaintiff waited to bring an action until he received a favorable result in another related litigation did not equitably toll the statute of limitations). In observing the undisputed facts within the four corners of FCA s Complaint, the Court finds that the statute of limitations under C.R.S bars FCA s breach of contract claim against Hudick. The Court also finds that Hudick s actions do not toll the statute of limitations. Therefore, the Court dismisses FCA s breach of contract claim. The Court notes that FCA s breach of warranty claim was not briefed in Hudick s original or re-filed Motions to Dismiss, and the breach of warranty issues have not been properly discussed for the purposes of this Order. Therefore, this Court declines to rule on the Motion to Dismiss as it regards FCA s breach of warranty claim. Finally, the Court notes that FCA s claim for declaratory judgment for indemnification no longer stands, as the third-party indemnification issue was decided in a previous Court order dated September 27,

5 II. CONCLUSION For the reasons stated above, Hudick s motion to dismiss FCA s breach of contract claim is GRANTED. IT IS SO ORDERED this Wednesday, November 13, BY THE COURT: Charles M. Pratt District Court Judge 5