APPENDIX 9

• Jurisdiction: Colorado

APPENDIX 9

Comment: This form of Complaint concerns a single-family home and includes a claim for declaratory relief regarding the constitutionality and interpretation of CDARA. Whether to include this or other formal declaratory relief claims is a tactical decision an attorney must make depending on the unique facts of each case. In some circumstances, it may be wiser to raise the issue by motion instead. In most cases, the Colorado attorney general must be given timely notice of any challenge to the constitutionality of a statute, or the challenge may be deemed waived. 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: Homeowners Defendants: Developer, Builder, and Principals
Attorney: Lawyer: Law Firm: Address: Telephone: Email:	Case Number: Div.:
COMPLAINT AND JURY DEMAND

Plaintiffs, Homeowners (the "Homeowners"), through their attorneys, [Law Firm], submit the following Complaint and Jury Demand against the above named Defendants:

GENERAL ALLEGATIONS

1. The Homeowners reside at and are the owners of a single-family residence located at [address] (the "Home").

2. Developer and Builder (hereinafter collectively "Builder-Vendor"), at all times material to this Complaint were the Home's developer and general contractor, and one or both were the Home's "builder-vendor," engaged in the business of the development, construction, marketing, and sale of new homes in Colorado.

3. Principal 1 ("Smith"), at all times material to this Complaint, was an officer, director, partner, and/or employee of Developer and Builder who actively participated in, cooperated with, directed, sanctioned, and/or otherwise implemented directly the negligent and otherwise wrongful manner in which the Home was developed, constructed, marketed, and sold. At all times material to this Complaint, the acts and omissions of Smith were the acts and omissions of Builder-Vendor.

4. Principal 2 ("Jones"), at all times material to this Complaint, was an officer, director, partner, and/or employee of Developer and Builder who actively participated in, cooperated with, directed, sanctioned, and/or otherwise implemented directly the negligent and otherwise wrongful manner in which the Home was developed, constructed, marketed and sold. At all times material to this Complaint, the acts and omissions of Jones were the acts and omissions of Builder-Vendor.

5. Upon information and belief, at all times material to this Complaint, Defendants Developer and Builder were the alter ego of each other and are liable for each other's conduct as it relates to the Home's development, construction, marketing, sale, and repair, and the alleged concealment and non-disclosures attendant to such marketing and sale described in this Complaint.

6. The Homeowners purchased the Home from Developer.

7. At the time Builder-Vendor, Smith, and Jones constructed and sold the Home, Builder-Vendor, Smith, and Jones knew or should have known that if any residence is to be constructed with a building envelope of the type installed at the Home, such as a weatherproof building exterior cladding ("WBEC") system, such residence should be designed and constructed in such a manner as to be able to withstand the elements to which that building envelope will be foreseeably exposed.

8. The Homeowners have discovered deficiencies in, actual property damage to, and/or the loss of use of, some or all of the Home, including improper use of a barrier WBEC system and related building-envelope failures, such as missing sheet metal flashings at windows and doors, improper termination and caulking of the WBEC termination at dissimilar materials, missing or inadequate slope at WBEC horizontal surfaces, improper termination and caulking at through-wall penetrations and surface-mounted objects, inadequate clearance of the WBEC from concrete flatwork and at-grade elements of the Home and lot, inadequate clearance of the WBEC from roof elements, improper termination of WBEC edges, and deficient flashing at eaves and rakes, as well as resulting and consequential property damage to other elements of construction in and aspects of the Home, including, without limitation, moisture damage to exterior wall elements and substrates and wood-product deterioration. These deficiencies have caused progressive, continuing, and worsening damage to the Home. Such damage has caused, and continues to cause, actual property damage continuing through the present, even though said damage may not have been obvious upon inspection.

9. The Homeowners have not been able to fully utilize and enjoy their Home and have lost the use of parts of their Home because of the property damage caused by the Home's defects and because of Builder-Vendor's, Smith's, and Jones's failure to effect permanent repairs of this damage. At all material times, Builder-Vendor, Smith, and Jones made the decisions that caused such damages and injuries.

10. When Builder-Vendor's, Smith's, and Jones's attention was called to the damages and injuries caused by the defects, Builder-Vendor, Smith, and Jones conducted a remedial investigation and analysis, made repair and remedial investigatory findings and/or repairs regarding portions of the Home, and assured the Homeowners that the damages and injuries were not caused by any substantial defect or defects in the Home, and that all such damages and defects had been or would be completely and permanently repaired by or at the direction of Builder-Vendor, Smith, and Jones.

11. In advertising, marketing, and selling the Home, Builder-Vendor, Smith, and Jones knew or should have known of adverse material facts before the Home's sale, including the facts that the Home was not constructed in a good and workmanlike manner, did not comply with all applicable codes, was not fit and sound for human habitation, and was not suited for its reasonably anticipated uses, but failed to disclose these facts to the Homeowners.

12. In advertising, marketing, and selling the Home, Builder-Vendor, Smith, and Jones participated in and authorized advertising statements that negligently misrepresented that the Home was of a particular standard, grade, or quality when Builder-Vendor, Smith, and Jones knew or should have known that it was not. In addition, Builder-Vendor, Smith, and Jones represented that [insert additional, specific representations], and failed to disclose that [insert additional, specific adverse material facts not disclosed].

13. Contrary to the representations authorized to be made by Builder-Vendor, Smith, and Jones, the Home was not built in a good and workmanlike manner, was not suited for its reasonably anticipated uses, and/or was built in such a condition that it threatens to become uninhabitable or in violation of applicable codes.

14. The Homeowners reasonably relied upon the substance of the advertising representations and warranties made or authorized to be made by Builder-Vendor, Smith, and Jones in purchasing the Home; or, alternatively, relied on Builder-Vendor, Smith, and Jones's failure to disclose adverse material facts relating to the Home.

15. As a result of Builder-Vendor's, Smith's, and Jones's acts and/or omissions, done individually or through their employees, agents, subcontractors, and contractors, and Builder-Vendor's, Smith's, and Jones's general supervision thereof, the Homeowners have sustained and/or will sustain damages including, by way of illustration, actual property damage, consequential loss of use of the value of their Home, and other direct economic costs, repair costs, and aggravation, inconvenience, annoyance, discomfort, and/or emotional distress.

16. Upon information and belief, Builder-Vendor, Smith, and/or Jones delegated a substantial...