v. Zag Built LLC —

2018 COA 66, 433 P.3d 125

• Court: Colorado Court of Appeals
• Decided: May 3, 2018
• Docket: 18CA0018, Curry
• Status: Published

Opinion

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?

¶ 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.

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.