APPENDIX 10

• Jurisdiction: Colorado

APPENDIX 10

Comment: This form of Complaint concerns a multi-family CCIOA development, does not include any declaratory judgment claims relating to CDARA's constitutionality or interpretation or the effectiveness of any arbitration provisions, pleads negligence per se as a separate claim for relief, pleads negligent repair as a separate claim for relief, and does not divide the misrepresentation claims into separate claims for relief founded on intentional versus negligent misrepresentation. The Complaint also contains no strict product liability allegations against non-construction professionals, such as window manufacturers. This form must be tailored to reflect the attorney's informed judgment regarding pleading requirements under the Colorado Rules of Civil Procedure, and whether some claims should be omitted, other claims added, and certain claims pleaded separately. Practitioners should consider the effect of any local construction defect notice ordinances, and revise this Complaint accordingly. See § 2.2.6, "Construction Defect Municipal Ordinances."

DISTRICT COURT, [name] COUNTY, COLORADO [address]	▲ COURT USE ONLY ▲
Plaintiff: ELYSIAN FIELDS HOMEOWNERS ASSOCIATION, INC., a Colorado nonprofit corporation. Defendants: DEVELOPER/BUILDER-VENDOR, LLC, a Colorado limited liability company, JOHN SMITH, individually, GENERAL CONTRACTOR, INC., a Colorado corporation, JAMES DOE, individually, FRAMING SUBCONTRACTOR, LLC, a Colorado limited liability company, SIDING SUBCONTRACTOR, LLC, a Colorado limited liability company, ROOFING SUBCONTRACTOR, INC., a Colorado corporation, CONCRETE SUBCONTRACTOR, INC., a Colorado corporation, GRADING SUBCONTRACTOR, LLC, a Colorado limited liability company, LANDSCAPING SUBCONTRACTOR, LLC, a Colorado limited liability company, and XYZ ARCHITECTURE AND ENGINEERING, P.C., a Colorado professional corporation.
	Case Number: Div.:
Attorney: Lawyer: Law Firm: Address: Telephone: Email:
COMPLAINT AND JURY DEMAND

Plaintiff, Elysian Fields Homeowners Association, Inc., a/k/a Elysian Fields Homeowners Association (the "Association"), through its Board of Directors and its attorneys, [Law Firm], complains against the Defendants as follows:

THE PROJECT AND THE PARTIES

1. This action involves a residential common interest community known as "Elysian Fields," created pursuant to Colorado's Common Interest Ownership Act, C.R.S. §§ 38-33.3-101, et seq. ("CCIOA"), and located in Any County, Colorado. Elysian Fields consists of 40 buildings containing 160 residential dwelling units. This Complaint will refer to the units, the common areas and common elements, and all other structures, spaces, property, and facilities that comprise the Elysian Fields common interest community as the "Project."

2. The Plaintiff is the Association, a Colorado nonprofit corporation acting through its Executive Board/Board of Directors.

3. Defendant Developer/Builder-Vendor, LLC, a Colorado limited liability company ("Developer") was the Project's developer, builder-vendor, and Declarant. In this Complaint, references to "Developer" and "Declarant" include references to any other organization or trade or assumed name under which Developer operated during the Project's development or construction.

4. At all times material to this Complaint, Developer was engaged in the development, improvement, construction, marketing, and sale of ownership interests in the Project to the Association's unit owner members, as well as the making, approving, and/or dissemination of the misrepresentations and nondisclosures described elsewhere in this Complaint.

5. As the Project's developer and builder-vendor, Developer had a nondelegable duty to exercise reasonable control and supervision over all of the Project's design, development, and construction activities and to act reasonably in quality checking and approving such work, some or all of which work was, upon information and belief, performed by subcontractors, and also had a nondelegable duty to ensure such work was done in a good and workmanlike manner and in accordance with all applicable plans, specifications, recommendations, and building codes.

6. As the Project's Declarant, Developer had the duty to control the Project's development and improvement, as well as the duty to keep the Project in good maintenance and repair during the period the Project was under the Declarant's control.

7. Defendant Mr. John Smith was a principal, officer, director, manager, employee, and/or agent of Developer who dominated and controlled Developer's actions and decisions, and who actively participated in, cooperated with, directed, sanctioned, and otherwise implemented directly Developer's negligent and otherwise wrongful conduct described in this Complaint. Smith's acts and omissions were the acts and omissions of Developer.

8. Smith was also a Declarant-appointed member of the Association's board during the period of Declarant control, during which tenure he and Developer/Declarant dominated and controlled the Association's actions and decisions.

9. Defendant General Contractor, Inc. ("General Contractor"), a Colorado corporation, was the Project's general contractor.

10. As general contractor, General Contractor had nondelegable duties to exercise reasonable control and supervision over all of the Project's construction work and to act reasonably in quality checking and approving such work, some or all of which work was, upon information and belief, performed by subcontractors. General Contractor also had nondelegable duties to ensure such work was done in a good and workmanlike manner and in accordance with all applicable plans, specifications, recommendations, and building codes.

11. Defendant James Doe was a principal, officer, director, manager, employee, and/or agent of General Contractor who dominated and controlled General Contractor's actions and decisions and who actively participated in, cooperated with, directed, sanctioned, and otherwise implemented directly General Contractor's negligent and otherwise wrongful conduct described in this Complaint: in sum, Doe's acts and omissions were the acts and omissions of General Contractor.

12. The Project's subcontractors included Framing Subcontractor, LLC, a Colorado limited liability company, Siding Subcontractor LLC, a Colorado limited liability company, Grading Subcontractor LLC, a Colorado limited liability company, Landscaping Subcontractor, LLC, a Colorado limited liability company, Concrete Subcontractor, Inc., a Colorado corporation, and Roofing Subcontractor Inc., a Colorado corporation. These subcontractors are collectively referred to as "Subcontractors" throughout this Complaint. These Subcontractors were responsible for the Project's framing, grading, concrete work, landscaping, and roofing.

13. Defendant XYZ Architecture and Engineering, P.C., ("XYZ Design Professionals"), a Colorado professional corporation, provided civil and structural engineering services for the Project.

OWNERSHIP AND DEVELOPMENT OF THE PROJECT

14. The Association was created pursuant to the "Articles of Incorporation of Elysian Fields Homeowners Association, Inc." (the "Articles"), recorded with Colorado's Secretary of State on August 16, 2004. Developer recorded the "Declaration of Covenants, Conditions and Restrictions for Elysian Fields Homeowners Association, Inc." (the "Declaration"), on September 16, 2004, in Any County.

APPLICABLE STATUTORY LAW

15. The Declaration, as amended, was created in accordance with and subject to CCIOA, C.R.S. §§ 38-33.3-101, et seq.

16. A number of CCIOA's provisions govern the duties and conduct of a common interest community declarant, such as Developer. For example, CCIOA provides:

a. That officers, directors, or employees of declarants are considered to be persons who "control a declarant." (C.R.S. § 38-33.3-103);

b. That the provisions of CCIOA may not be varied by agreement, and that the rights conferred by CCIOA may not be waived. A declarant may not use any other device to evade the limitations or prohibitions of CCIOA. (C.R.S. § 38-33.3-104);

c. That all rights and obligations declared under CCIOA are enforceable by judicial proceeding. (C.R.S. § 38-33.3-114(2));

d. That the principles of law and equity, including, but not limited to, the law of corporations, the law of principal and agent, the law of estoppel, fraud, misrepresentation, duress, coercion, mistake, and other laws supplement the provisions of CCIOA. (C.R.S. § 38-33.3-108);

e. That all duties and contracts governed by CCIOA impose an obligation of good faith in their performance and enforcement. (C.R.S. § 38-33.3-113);

f. That any officer or member of the Board of Directors or Executive Board appointed by the declarant is required to exercise the care required of fiduciaries of the unit owners in the performance of their duties. (C.R.S. § 38-33.3-303(2)(a));

g. That the remedies provided by CCIOA shall be liberally administered to the end that the aggrieved party is put in as good a position as if the other party had fully performed. (C.R.S. § 38-33.3-114);

h. That the Association is responsible for the maintenance, repair, and replacement of the common elements and that if damage is inflicted, or a strong likelihood exists that it will be inflicted, on the common elements, the Association is liable for the cost of prompt repair. (C.R.S. § 38-33.3-307(1));

i. That the Association is provided with various powers necessary to regulate and enable appropriate maintenance, replacement, and repairs to the Common Elements, and may recover reasonable attorney fees and legal costs for actions to enforce the Association's powers. (C.R.S. § 38-33.3-302(1)(f) & (k));

j. That in any civil action to enforce or defend CCIOA's provisions, the court shall award reasonable attorney fees and litigation costs to the prevailing party. (C.R.S. § 38-33.3-123(1)(c));

k. That a Court may find that a contract clause relating to the

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