Loveland Essential Group, LLC v. Grommon Farms, Inc. , 2012 Colo. App. LEXIS 170 ( 2012 )

Opinion by

Judge J. JONES.

{1 This appeal concerns the second lawsuit between plaintiff, Loveland Essential Group, LLC (Buyer), and defendants, Grom-mon Farms, Inc., Gary Grommon, and Connie Grommon (collectively, Seller), arising from Buyer's purchase of commercial real property and assets from Seller. Buyer asserts that its claims in this case arose after it filed the first lawsuit but before there was a final judgment in the first lawsuit.

T2 The district court granted summary judgment in Seller's favor, concluding, as relevant here, that because Buyer had not sought to amend its complaint in the first lawsuit to assert the new claims, the doctrine of claim preclusion barred this subsequent lawsuit on the new claims. We conclude, however, that claim preclusion does not bar Buyer's action on the new claims if they arose after the first lawsuit was filed. Because there is a genuine issue of material fact as to when the new claims arose, we reverse the summary judgment and remand for further proceedings.

I. Background

13 Buyer entered into a real estate purchase agreement (RPA) and an asset purchase agreement (APA) with Seller to purchase certain commercial real property and business assets. The RPA required that there not be any encumbrances on the real property, other than those identified therein. The APA similarly required that there not be any encumbrances on the assets conveyed, other than those identified therein.

¶4 At the closing, Seller executed a Warranty Deed conveying the real property to Buyer and warranting that the property was free and clear of all encumbrances, except those identified in an attachment.

T5 After closing, Buyer filed a complaint in Case No. OTCV 170 that, as amended, alleged in part that Seller had breached the RPA, the APA, and the Warranty Deed by conveying the real property and assets subject to a lease on part of the real property.

T6 On August 8, 2008, about a year and a half after the original filing, and three months before trial thereon, Buyer learned that an Adjacent Property Reimbursement Agreement between the City of Loveland and the developer of the area in which the real property is located had been filed with the Larimer County Clerk and Recorder on August 1, 2008. The Reimbursement Agreement purports to obligate parties subject thereto to pay a portion of city street improvement and construction costs when applying for a permit to develop or redevelop property within the covered area. The City apparently - seeks - reimbursement _ of $794,871.69 from Buyer under the Reimbursement Agreement.¹

T7 Buyer moved to vacate the trial setting (then six weeks away) and to conduct additional discovery, arguing that such discovery was necessary "before it may move to amend the Complaint to add a claim that the Reimbursement Agreement is an additional ground for breach of the [RPA], the [APA], and/or the Warranty Deed." According to Buyer, such an amendment would "minimize the burden and expense on the parties and the Court and is in the best interests of justice so that all of Plaintiff's claims may be heard in one action." In the alternative, Buyer requested that, if the court denied the motion, it expressly rule that Buyer could pursue claims based on the Reimbursement Agreement in a separate lawsuit to "address potential claim preclusion ... defenses...."

18 The court granted Buyer's motion to vacate the trial date and permit additional discovery. It reset the trial for about two and a half months after the vacated date.

T9 Buyer conducted additional discovery related to the Reimbursement Agreement. However, it did not move to amend its complaint in Case No. OTCV 170 to add claims based thereon. Rather, a week before trial on the claims in Case No. OTCV 170, it filed its complaint in this case, Case No. O9CV34, alleging that Seller had breached the RPA and the Warranty Deed by conveying the property subject to the Reimbursement Agreement. Thereafter, it conducted further discovery related to the claims in Case No. 09CV34.

{10 After a bench trial on the claims in Case No. OTCV 170, the district court concluded that Seller had breached the RPA, APA, and the Warranty Deed by conveying the real property subject to the lease. On appeal, a division of this court affirmed the judgment in part, reversed it in part, and remanded the case for further proceedings. Essentially, the division upheld the judgment to the extent it was based on breaches of the RPA and Warranty Deed, but remanded for further findings on Buyer's damages. Love-land Essential Grp, LLC v. Grommon Farms, Inc., 251 P.3d 1109 (Colo.App.2010).

11 While the appeal of Case No. OTCV 170 was pending, Seller moved for summary judgment on Buyer's claims in this case, arguing that those claims were barred by the doctrine of claim preclusion because Buyer had not litigated them in the trial of Case No. OTCV 170. The district court agreed that the claims would be barred once the judgment in Case No. OTCV 170 had become final. Specifically, it found that because the claims in this case arose from the same agreements, Warranty Deed, and sale as those at issue in Case No. OTCV 170, Buyer was required to have asserted the claims pertaining to the Reimbursement Agreement in Case No. OTCV 170. But, because the judgment in Case No. OTCV 170 had not yet become final, the court held the motion for summary judgment in abeyance pending a final judgment. After the judgment in Case No. 07CV 170 became final, the court granted Seller's motion for summary judgment.

II. Discussion

12 On appeal, Buyer contends that the district court erred by granting summary judgment based on claim preclusion because (1) the judgment in Case No. OTCV 170 was not final when the second case was filed; (2) Seller waived the affirmative defense of claim preclusion; (8) Buyer did not discover the alleged breaches of the RPA and Warranty Deed based on the Reimbursement Agreement until after it had filed the complaint in Case No. OTCV 170, and consequently there was no identity of subject matter; (4) for the same reason there was no identity of claims for relief; and (5) the court could not hold the summary judgment motion in abeyance pending a final judgment in Case No. OTCA 170. We agree with Buyer's fourth contention, and consequently we need not address the others.

A. Standard of Review

13 We review a grant of summary judgment on the basis of claim preclusion de novo. Wall v. City of Awrora, 172 P.8d 984, 937 (Colo.App.2007); Camus v. State Farm Mut. Auto. Ins. Co., 151 P.3d 678, 680 (Colo. App.2006). Summary judgment is appropriate only where the pleadings and supporting documents demonstrate that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rocky Mountain Festiwwals, Inc. v. Parsons Corp., 242 P.3d 1067, 1074 (Colo.2010); Grandote Golf & Country Club, LLC v. Town of La Veta, 252 P.8d 1196, 1199 (Colo.App. 2011).

B. Analysis

114 Claim preclusion (formerly known as res judicata ²) bars "relitigation of matters that have already been decided [in a prior proceeding] as well as matters that could have been raised in a prior proceeding but were not." Argus Real Estate, 109 P.8d at 608; accord Timm v. Prudential Ins. Co. of Am., 259 P.8d 521, 527 (Colo.App.2011). A claim in a second judicial proceeding is precluded by a previous judgment where there is (1) finality of the first judgment, (2) identity of subject matter, (8) identity of claims for relief, and (4) identity of or privity between the parties to the two actions. Burlington Ditch Reservoir & Land Co. v. Metro Waste-water Reclamation Dist., 256 P.3d 645, 668 (Colo.2011). We consider only the third factor here.

1. - Identity of Claims for Relief

115 In determining whether there is identity of claims for relief, the focus of the inquiry is "'the injury for which relief is demanded, ... not ... the legal theory on which the person asserting the claim relies." " Jackson v. Am. Fomily Mut. Ins. Co., 258 P.3d 328, 831 (Colo.App.2011) (ultimately quoting Farmers High Line Canal & Reservoir Co. v. City of Golden, 975 P.2d 189, 199 (Colo.1999)); accord Argus Real Estate, 109 P.3d at 609. Claim preclusion bars litigation of claims that previously were or might have been decided only "if the claims are tied by the same injury." Argus Real Estate, 109 P.3d at 609. Claims are tied by the same injury where they concern "'all or any part of the transaction, or series of connected transactions, out of which the [original] action arose.'" Id. (quoting Restatement (See-ond) of Judgments § 24(1) (1982)). In determining what factual grouping constitutes a transaction, the court considers " 'whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations.'" Salazar v. State Form Mut. Auto. Ins. Co., 148 P.3d 278, 281 (Colo.App.2006) (ultimately quoting Restatement (Second) of Judgments § 24(2)); accord Camus, 151 P.3d at 680.

"16 Generally, a contract is considered to denote a single transaction for the purpose of claim preclusion, and therefore claims for different breaches of a contract ordinarily must be brought in the same action. See Petromanagement Corp. v. Aeme-Thomas Joint Venture, 885 F.2d 1329, 1885-36 (10th Cir.1988) (but noting that this is the case "so long as the breaches antedated the original action"); LaPoint v. Amerisource-Bergen Corp., 970 AZd 185, 194 (Del.2009); Restatement (Second) of Judgments § 25 comment b, illus. 2; Restatement of Judgments § 62 comment h (1942); see also Salazar, 148 P.B8d at 281; see generally 18 Charles Alan Wright et al., Federal Practice and Procedure § 4409, at 212 (2d ed. 2007).³ A later claim merely arising from the same contract as an earlier claim is not necessarily barred, however. Because, as noted, a claim is only precluded if it could have been raised and decided in the earlier proceeding, Argus Real Estate, 109 P.3d at 608-09, an action on a later claim is not barred, for example, if the claim arose after the original judgment, and therefore could not have been litigated in the original action, see Farmers High Line, 975 P.2d at 203; In re Water Rights of Midway Ranches Prop. Owners' Ass'n, Inc., 938 P.2d 515, 525-26 (Colo.1997); see also Holnam, Inc. v. Indus. Claim Appeals Office, 159 P.3d 795, 798 (Colo.App.2006); Executive Fitness, LLC v. Healey Bldg. Ltd. P'ship, 290 Ga. App. 613, 660 S.E.2d 26, 28-29 (2008); Estate of Raven v. Lincoln Nat'l Life Ins. Co., 51 So.3d 147, 152 (La.Ct.App.2010).

17 This appeal, however, requires us to consider the intermediate circumstance of a claim allegedly arising after the original complaint was filed, but before the court rendered judgment thereon (an after-arising claim). We find one recent Colorado case instructive.

118 In Camus, Judge Webb authored a concurrence in which he concluded that the bar against claims that might have been decided in an earlier action does not extend to claims which arose after the filing of the original pleading in that action, but before judgment. 151 P.3d at 682, 684-85 (Webb, J., specially concurring). In so concluding, Judge Webb relied on federal cases which have reasoned that claim preclusion does not bar a later action for after-arising claims because, even though a plaintiff can seek to supplement its original complaint to add such claims, Fed. 15(d) does not require it to seek leave to file such a supplemental pleading. Id. at 688-84 (collecting cases and observing that "[the language of C.R.C.P. 15(d) is identical to the language of Fed. R.Civ.P. 15(d)"); see Fed.R.Civ.P. 15(d); C.R.C.P. 15(d) ("Upon motion of a party the court may ... permit him to serve a supplemental pleading setting forth transactions or oceurrences or events which have happened since the date of the pleading sought to be supplemented.").⁴

119 As Judge Webb recognized in his concurrence in Camus, all federal appellate courts that have addressed the issue have concluded that because the litigation's seope is framed by the complaint at the time it is filed, claim preclusion generally does not bar a later suit on after-arising claims that were not pled in the earlier action. 151 P.3d at 688-84.⁵ Most state courts that have considered the issue have reached the same conclusion.⁶ And, with respect to breach of contract claims specifically, many secondary authorities have recognized that because "[mlultiple claims may arise for breach of a single contract by distinct acts at separate times," only the breaches "occurring prior to commencement of the first action constitute part of a single claim or cause of action." 18 Charles Alan Wright et al., Federal Practice and Procedure § 4409, at 212 (2d ed. 2007); see Restatement (See-ond) of Judgments § 26 comment g; 18 James Wm. Moore et al., Moore's Federal Practice § 181.23[1], at 181-61 to -62 (8d ed. 2011); 13 Sarah Howard James, Corbin on Contracts § 72.4(1), at 468 (rev. ed. 2008).

120 However, some state courts have concluded that because after-arising claims could have been decided in an earlier action through an amended or supplemental pleading,⁷ claim preclusion does bar a later action on such claims.⁸

€ 21 We find the majority rule and Judge Webb's concurrence in Camus persuasive, for four reasons.

T22 First, none of the cases holding that subsequent actions on after-arising claims are barred by claim preclusion acknowledge or address the countervailing federal or state authority. See, e.g., CenTrust, 469 S.E.2d at 468-69; Altair, 252 Ill.Dec. 101, 742 N.E.2d at 356; Kinsman, 804 N.Y.S.2d at 431-32; Mohamed, 796 S.W.2d at 756.

123 Second, under C.R.C.P. 15(a) and (d), the filing of an amended or supplemental pleading is expressly optional, not mandatory. See Camus, 151 P.3d at 682, 683-84 (Webb, J., specially concurring). The mere existence of the doctrine of claim preclusion does not render the rule's permissive language mandatory. See Pleming v. Universal-Rundle Corp., 142 F.3d 1354, 1357 (11th Cir.1998) ("the doctrine of [claim preclusion] does not punish a plaintiff for exercising the option not to supplement the pleadings with an after-acquired claim"); Manning, 953 F.2d at 1360 (Fed.R.Civ.P. 15 governs which claims should have been brought earlier, not the claim preclusion doe-trine); Macris, 16 P.3d at 1220 (because the Utah Rules of Civil Procedure do not require amendment of pleadings to add additional claims, requiring pleadings to be amended for claim preclusion purposes would be inconsistent with those rules). In similar cireum-stances, a division of this court concluded that because assertion of a cross-claim is expressly permissive under C.R.C.P. 18(g), cross-claims "trigger claim preclusion only if they were actually raised and decided in the earlier action." Cont'l Divide Ins. Co. v. W. Skies Mgmt., Inc., 107 P.3d 1145, 1147 (Colo.App.2004) (citing federal cases).

124 Moreover, we observe that it is within the district court's discretion whether to permit such pleadings after an answer or other responsive pleading has been filed. C.R.C.P. 15(a), (d). And the court may permit a supplemental pleading only "upon reasonable notice and upon such terms as are just." C.R.C.P. 15(d). Consequently, even if a party chooses to move to amend or supplement its complaint, the court may deny the motion. See id.; cf. Role Models Am., Inc. v. Penmar Dev. Corp., 394 F.Supp.2d 121, 133 (D.D.C.2005) ("where the law restricts the circumstances in which amendment is allowed, it would be untenable to define expansively the [claim preclusion] boundaries of a claim because, in that setting, plaintiffs would be forced to bring any remotely conceivable claim at the outset of litigation, regardless of merit, or risk losing the opportunity to assert it"), aff'd, 216 Fed.Appx. 5 (D.C.Cir. No. 05-5421, Feb. 2, 2007) (unpublished judgment).

125 Third, requiring a party to amend or supplement its original pleading every time an additional claim arises before entry of judgment could substantially disrupt the proceedings and complicate litigation of the original claim. See Doe v. Allied-Signal, Inc., 985 F.2d 908, 915 (7th Cir.1993); Drewitz, 728 N.W.2d at 240. And relatedly, if the claim arises shortly before trial, the claimant may be forced to litigate a claim that is not fully developed. See Camus, 151 P.3d at 682 (Webb, J., specially concurring); see also Yapp v. Excel Corp., 186 F.3d 1222, 1227 n. 4 (10th Cir.1999) (noting that claim preclusion may not bar claims where the parties did not have a full and fair opportunity to litigate the claims); Russo v. Baxter Healthcare Corp., 919 F.Supp. 565, 571 (D.R.I.1996) ("parties cannot be required to add to their original suits claims that arise on the eve of trial"); Roche, 493 N.E.2d at 526 (though Massachusetts' rules of procedure are sufficiently flexible to permit amendments to a complaint based on discoveries made during trial, "[rle-alistically appraised, ... the prospects for success in altering the scope and nature of the action so late in the day would be daunting"); cf. Durrant, 903 P.2d at 150 (noting that if the plaintiff had brought the after-arising claim in the first action, he may have violated the requirement that a pleading be well-grounded in fact and warranted in law).

126 If a claim arises shortly after the original filing, or if, as here, the court postpones the trial date and permits additional discovery on the after-arising claim, requiring an amendment likely would not cause substantial disruption or other hardship. However,

[the rules that expand the dimensions of a cause of action as time goes on require clear identification of a stopping point.... The difficulty presented by thle] approach [requiring the inclusion of after-arising claims] lies in identifying a suitable alternative stopping point. Substantial disruption could result from forced amendment at any time after significant discovery has been accomplished, and it is hard to justify any test relating to the progress of discovery or other pretrial events so clear that plaintiffs could afford to apply it without seeking explicit judicial guidance.

18 Federal Practice and Procedure § 4409, at 218, 218-19; accord Doe, 985 F.2d at 915; see also Russo, 919 F.Supp. at 571 ("any cutoff after the filing date would be arbitrary and unwieldy"); Green v. Ill. Dep't of Transp., 609 F.Supp. 1021, 1026 (N.D.Ill.1985) ("[I]t is difficult, if not impossible, for a court to draw a line as to when in a previous lawsuit a plaintiff should have tried to add a later-maturing claim. A rule requiring amendment would be difficult for courts and plaintiffs to apply and could disrupt or needlessly complicate the first suit."). Therefore, a bright-line rule that subsequent actions on after-arising claims are not barred will engender more predictable results than a rule requiring fact-intensive inquiry into the claims and the progress of the original action.

{27 Fourth, "[al main purpose of the general rule [that claim preclusion bars a later action on claims arising out of the same transaction as the original action] is to protect the defendant from being harassed by repetitive actions based on the same claim." Restatement (Second) of Judgments § 26 comment a; see also Cruz v. Benine, 984 P.2d 1178, 1176 (Colo.1999). Where a plaintiff is unaware of another, potentially related claim when it commences its original action, "[the] plaintiff's purpose in bringing the subsequent action [is] not ... to consciously and unreasonably vex or harass the defendant." Bolte, 587 P.2d at 814. Consequently, barring a later action on such after-arising claims does not serve the purpose of preventing harassing, repetitive actions. See id.; accord Soren-Hodges v. Blazer Homes, Inc., 204 Or.App. 86, 129 P.3d 196, 201-02 (2006); see also Genereux v. Bruce, 2011 WL 1387983, *-- (R.I.Super. Ct. Nos. PC 09-7295, PC 09-7296, PC 09-7297, PC 10-0926, PC 10-8045, Apr. 4, 2011) (it is improper to apply claim preclusion where there is no risk of the defendant being harassed by repetitive actions based on the same claim).

$28 We therefore conclude that claim preclusion does not bar a later action on claims which arise after the original action is filed, but before judgment in the original action.

2. Application

T29 We now consider whether Buyer's claims based on the Reimbursement Agreement are after-arising claims, and conclude that they may be.

$30 For the purpose of claim preclusion, a claim arises after the filing of the original action where, at the time of the filing, the party did not know of the facts giving rise to the claim and could not have discovered them through the exercise of reasonable diligence. See Doe, 985 F.2d at 914; Allied Fire, 25 Cal.Rptr.3d at 200; cf. § 13-80-108(6), C.R.S.2011 (for statute of limitation purposes, a cause of action for breach of contract or breach of warranty accrues on the date the breach is discovered or should have been discovered by the exercise of reasonable diligence).⁹ Thus, even if a defendant breaches a contract before the first action's filing, if the plaintiff is ignorant of the breach until after the filing and its ignorance is not due to its own negligence, the claim on the breach is considered an after-arising claim. See Allied Fire, 25 Cal.Rptr.3d at 199-200 {refusing to distinguish between a new fact and a newly discovered fact in determining whether a claim is precluded); LaPoint, 970 A.2d at 194; Bolte, 587 P.2d at 812-14; Du-Al, 487 N.W.2d at 32; see also Coomer, 819 S.W.3d at 373-74 (though the injuries giving rise to the after-arising claims occurred prior to the original filing, they did not accrue until after that date).

131 Here, Grommon Farms represented and warranted in section 5.01 of the RPA that, as of the closing date:

£) [Grommon Farms] will transfer the Property free and clear of all liens and encumbrances other than those agreed to [in the RPA]; and

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j) [Grommon Farms] has received no notices with respect to improvements planned which may result in special assessments being levied against the Real Property in the future and, to [Grommon Farms'] knowledge, there are no such improvements planned which may result in special assessments being levied against the Real Property in the future.

Similarly, Grommon Farms covenanted in the Warranty Deed that the property was "free and clear from all former and other grants, bargains, sales, liens, taxes, assessments, encumbrances and restrictions of whatever kind or nature whatsoever," aside from certain enumerated exceptions. Buyer averred in opposition to Seller's motion for summary judgment that, despite these provisions, Seller never mentioned any potential right of reimbursement and Buyer had no knowledge of any such right before the city notified it of the Reimbursement Agreement.

{ 32 Seller asserts, however, that two letters from Buyer to Mr. Grommon before the sale's closing suggest that Buyer may have been aware of the right of reimbursement. In these letters, Buyer acknowledged that a portion of the RPA "appears to impose certain restrictions on development and may subject the owner of the parcel to certain fees, assessments or recapture provisions for the installation of utilities and improvements," and said that, before closing, it "must be satisfied that this item does not subject them to fees, assessments, or recapture provisions or otherwise block development of the Property." It is unclear, however, whether the letters refer to the Reimbursement Agreement-related restrictions or to some other restrictions. Seller concedes that "[the record is not clear on this" and that "there is, at a minimum, a dispute of fact whether Buyer was aware of the reimbursement agreement or its possibility prior to closing."

133 Consequently, we conclude that there is a genuine issue of material fact as to whether Buyer knew or should have known about the Reimbursement Agreement-based breaches before it filed its complaint premised on the lease-based breaches. Therefore, we further conclude that the district court erred by granting summary judgment in Seller's favor. See Grandote, 252 P.3d at 1199; Wall, 172 P.3d at 986; see also Cork v. Sentry Ins., 194 P.3d 422, 425 (Colo.App.2008) (because when a cause of action accrues is a question of fact, summary judgment may only be granted where the undisputed evidence shows the plaintiff discovered or reasonably should have discovered the claim as of a particular date); cf. TM Patents, L.P. v. Int'l Bus, Machs. Corp., 121 F.Supp.2d 349, 363 (S.D.N.Y.2000) (where the defendant had a duty to disclose all relevant facts concerning its assets prior to the transaction and there was no evidence indicating that the plaintiff should have been on notice of the alleged defect in title, the plaintiff could not have discovered the existence of the ownership issue with due diligence).

1 34 We are not persuaded to the contrary by the cases on which Seller relies. See Dubuc v. Green Oak Twp., 312 F.3d 736 (6th Cir.2002) (applying Michigan law); Carstarphen v. Milsner, 594 F.Supp.2d 1201 (D.Nev.2009) (applying Nevada law). Dubuc and Carstarphen recognized an exception to the general rule that an action on an after-arising claim is not barred where the events giving rise to the after-arising claim are merely additional manifestations of the series of wrongful acts alleged in the first claim. See Dubuc, 312 F.3d at 748-51 (further acts in a series of allegedly retaliatory acts); Carstarphen, 594 F.Supp.2d at 1210; see also McCoy v. Michigan, 369 Fed.Appx. 646, 651-52 (6th Cir. No. 08-1641, Mar. 12, 2010) (unpublished opinion) (applying Michigan law) (clarifying that Dubac's holding only precludes claims based on "an additional manifestation of the initial claim," not new and independent claims that arise after the original pleading's filing); Sosebee v. State Farm Mut. Auto. Ins. Co., 164 F.3d 1215, 1216-18 (9th Cir.1999) (continuing instances of bad faith in insurance adjustment).

135 Here, the alleged breaches based on the Reimbursement Agreement give rise to separate claims from those based on the lease; the breaches based on the Reimbursement Agreement are not merely additional manifestations of the breaches occasioned by the lease. Thus, the exception addressed in Dubue and Carstarphen does not apply here. Cf. Interoceanica Corp. v. Sound Pilots, Inc., 107 F.3d 86, 91 (2d Cir.1997) (the two proceedings "glalve rise to separate statutory wrongs-just as a party who breaches a contract twice in the same way has committed two separate breaches"); Ornauer v. Penn Mut. Life Ins. Co., 52 Colo. 632, 632, 636-37, 123 P. 650, 650-51 (1912) (where the plaintiff brought an action to recover commissions under a contract, then, while the first action was pending, brought two additional actions to recover contract commissions accruing after the original filing, claim preclusion did not bar the later actions because the original and later causes of action were different); Tatum v. Basin Res., Inc., 141 P.3d 863, 868 (Colo.App.2005) (the homeowners' second injury to their residence as a result of a second occurrence of subsidence was a separate infu-ry).

1 36 Because of our resolution of this issue, we need not address the other issues Buyer raises.

137 The judgment is reversed and the case is remanded for further proceedings.

1 38 Judge FURMAN concurs. Judge CARPARELLLI concurs in part and dissents in part.

1 . Buyer asserts that all of the improvements and construction for which the city sought reimbursement had been completed before it purchased the property.

2 . We use the term claim preclusion to distinguish the concept from the separate doctrine of issue preclusion. See Argus Real Estate, Inc. v. E-470 Pub. Highway Auth., 109 P.3d 604, 608 (Colo.2005).

3 . Based on these authorities, and the Colorado authorities cited above, we respectfully disagree with the concurrence's analysis. In our view, the concurrence's analysis construes the "transaction' at issue too narrowly. The claims at issue in the two actions are for breaches of the same instruments, and are based on the same obligations in those instruments. Unless the later claims are after-arising claims, they must be regarded as arising from the same transaction as the claims in the first action lest the concern for avoiding piecemeal litigation underlying the claim preclusion doctrine be thwarted.

4 . We recognize that in Salazar a division of this court concluded that it was reasonable to have expected the plaintiff to have amended her complaint to include claims of which she became aware after the original filing but four months before trial thereon. 148 P.3d at 282. However, the division addressed only the issue of whether litigating the after-arising claims in the first trial would have conformed to the parties' expectations, not whether claim preclusion generally bars later litigation of after-arising claims. See id.

5 . See, e.g., Morgan v. Covington Twp., 648 F.3d 172, 177-78 (3d Cir.2011); Smith v. Potter, 513 F.3d 781, 783 (7th Cir.2008); Rawe v. Liberty Mut. Fire Ins. Co., 462 F.3d 521, 529-30 (6th Cir.2006) (applying Kentucky law); Storey v. Cello Holdings, LLC., 347 F.3d 370, 384-86 (2d Cir.2003); Baker Grp., L.C. v. Burlington N. & Santa Fe Ry. Co., 228 F.3d 883, 886 (8th Cir.2000); Mitchell v. City of Moore, 218 F.3d 1190, 1202-03 (10th Cir.2000); Florida Power & Light Co. v. United States, 198 F.3d 1358, 1360-61 (Fed.Cir.1999); Manning v. City of Auburn, 953 F.2d 1355, 1359-60 (11th Cir.1992) (applying Alabama law); Young-Henderson v. Spartanburg Area Mental Health Ctr., 945 F.2d 770, 774 (4th Cir.1991) (in dicta); Los Angeles Branch NAACP v. Los Angeles Unified Sch. Dist., 750 F.2d 731, 739 (9th Cir.1984) (applying California law); see also In re Belmont Realty Corp., 11 F.3d 1092, 1100 (1st Cir.1993).

6 . See Chiepalich v. Coale, 36 So.3d 1, 4-5 (Ala.2009); Allied Fire Protection v. Diede Constr., Inc., 127 Cal.App.4th 150, 25 Cal.Rptr.3d 195, 199-201 (2005); LaPoint, 970 A.2d at 194; Bolte v. Aits, Inc., 60 Haw. 58, 587 P.2d 810, 812-14 (1978); Durrant v. Quality First Mktg., Inc., 127 Idaho 558, 903 P.2d 147, 149-51 (App.1995); Coomer v. CSX Transp., Inc., 319 S.W.3d 366, 373-74 & n. 23 (Ky.2010) (citing Judge Webb's concurrence in Camus); Roche v. Roche, 22 Mass.App.Ct. 306, 493 N.E.2d 523, 526 (1986); Banks v. LAB Lansing Body Assembly, 271 Mich.App. 227, 720 N.W.2d 756, 758-59 (2006); Drewitz v. Motorwerks, Inc., 728 N.W.2d 231, 239-40 (Minn.2007); Schwartz v. State Dep't of Revenue Admin., 135 N.H. 470, 606 A.2d 806, 809 (1992); Brooks Trucking Co., Inc. v. Bull Rogers, Inc., 139 N.M. 99, 128 P.3d 1076, 1081-82 (App.2006); Hoover v. County of Broome, 2009 WL 1564730, *2 (N.Y. Sup.Ct. No.2008-1102, June 2, 2009) (unreported disposition); Allison v. Montgomery, 118 Or.App. 118, 846 P.2d 435, 436-37 (1993); Belliveau Bldg. Corp. v. O'Coin, 1997 WL 839893, *5 (R.I.Super.Ct. No. 90-2812, Feb. 19, 1997) (unpublished decision); Du-Al Mfg. Co. v. Sioux Falls Constr. Co., 487 N.W.2d 29, 32 (S.D.1992); Macris & Assocs., Inc. v. Neways, Inc., 16 P.3d 1214, 1219-20 (Utah 2000); Spicer v. Va. Birth-Related Neurological Injury Comp. Program, 48 Va.App. 613, 633 S.E.2d 732, 736 n. 6 (2006); see also Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 319-20, 47 S.Ct. 600, 71 L.Ed. 1069 (1927) ("[A] judgment or decree upon the merits concludes the parties as to all media concludendi or grounds for asserting the right, known when the suit was brought." (emphasis added)); Executive Fitness, 660 S.E.2d at 28-29 (noting that claim preclusion does not bar a later action on claims arising after the first action commences, but addressing claims arising after the first judgment); Whalen v. Connelly, 621 N.W.2d 681, 685 (Iowa 2000) (same as Executive Fitness); Ardary v. Stepien, 2004 WL 253491, *3 (Ohio Ct.App. No. 82950, Feb. 12, 2004) (unpublished opinion) (same as Executive Fitness ).

7 . "Amended and supplemental pleadings differ in that the former relate to matters occurring before the filing of the original pleading ... while the latier concern events subsequent to the original pleading...." Eagle River Mobile Home Park, Ltd. v. Dist. Court, 647 P.2d 660, 662 n. 3 (Colo.1982); accord Lutz v. Dist. Court, 716 P.2d 129, 131 n. 1 (Colo.1986); 6A Charles Alan Wright et al., Federal Practice and Procedure § 1504, at 254 (3d ed. 2010). Consequently, a plaintiff may include an after-arising claim in the original action in one of two ways: (1) through an amended pleading, if the events giving rise to the claim occurred before the original filing but were not discovered until after that filing; and (2) through a supplemental pleading, if the events occurred after the filing. See C.RC.P. 15(a), (d); Lutz, 716 P.2d at 131 n. 1 (the plaintiff could have filed an amended pleading where the changes related to events that had happened before the complaint was filed, but were not discovered until after the filing). Whether the pleading is labeled as amended or supplemental, however, is largely immaterial to our analysis. See Eagle River, 647 P.2d at 662 n. 3; see also United States v. Vorachek, 563 F.2d 884, 886 n. 1 (8th Cir.1977); 6A Federal Practice and Procedure § 1504, at 254-55 ("'Parties and courts occasionally confuse supplemental pleadings with amended pleadings and mislabeling is common. These misnomers are not of any significance, however.").

8 . See CenTrust Mortg. Corp. v. Smith & Jenkins, P.C., 220 Ga.App. 394, 469 S.E.2d 466, 468-69 (1996); Altair Corp. v. Grand Premier Trust & Inv., Inc., 318 Ill.App.3d 57, 252 Ill.Dec. 101, 742 N.E.2d 351, 356 (2000) (addressing circumstances where the plaintiff learned of the after-arising claim long before final judgment and therefore had time to act); Kinsman v. Turetsky, 21 A.D.3d 1246, 804 N.Y.S.2d 430, 431-32 (N.Y.App.Div.2005); Mohamed v. Exxon Corp., 796 S.W.2d 751, 756 (Tex.App.1990); see also AMEC Civil, LLC v. State Dep't of Transp., 41 So.3d 235, 242-43 (Fla.Dist.Ct.App.2010) (where the plaintiff filed a breach of contract action before final acceptance of the contract, its premature filing prevented joinder of all the contract-based claims and, therefore, the after-arising breach of contract claims were precluded); Regions Fin. Corp. v. Marsh USA, Inc., 310 S.W.3d 382, 394-96 (Tenn.Ct.App.2009) (rejecting the plaintiff's argument that "an issue only 'could have been raised' if the moving party had an unfettered right to raise it"; addressing, however, an alternative theory supporting the original claim and not a new, distinct claim).

9 . We emphasize that a court need only employ this analysis where the claims arise from the same transaction or series of transactions. "(Elven if a plaintiff is aware of the factual basis for a suit at the filing of another suit, he or she is not obligated to bring all claims together if they do not arise out of the same transaction." Doe, 985 F.2d at 914; see Argus Real Estate, 109 P.3d at 609.