Cordillera Corp. v. Heard, No. 78-576

• Docket Nº: No. 78-576
• Citation: 41 Colo.App. 537, 592 P.2d 12
• Case Date: November 30, 1978
• Court: Court of Appeals of Colorado

Page 12

592 P.2d 12 41 Colo.App. 537 CORDILLERA CORPORATION, a Utah Corporation, Plaintiff-Appellee,
v.
John W. HEARD, Defendant-Appellant. No. 78-576. Colorado Court of Appeals, Div. III. Nov. 30, 1978.
Rehearing Denied Dec. 28, 1978.
Certiorari Granted March 19, 1979.

[41 Colo.App. 538]

Page 13

Mason, Reuler & Peek, P.C., Maurice Reuler, Rosanne M. Hall, Denver, for plaintiff-appellee.

Sanford B. Hertz, P.C., Robert M. Bearman, Denver, for defendant-appellant.

VanCISE, Judge.

In November 1976 plaintiff, as landlord, commenced this action against defendant, as tenant, for unpaid rent, taxes, insurance, attorney fees, and interest due under a lease, a copy of which was attached to the complaint. In December defendant answered, denying liability and asserting various affirmative defenses. Plaintiff moved for summary judgment, and the motion was denied. In March 1977, plaintiff amended its complaint, adding additional claims for unpaid rent and taxes, and defendant filed an amended answer. The case was then set to be tried in November 1978.

In March 1978, plaintiff, through new counsel, filed a motion in which it pointed out that the lease provided that the landlord and tenant would submit "all controversies, claims, and matters of difference to arbitration according to the rules and practices of the American Arbitration Association." It further noted that plaintiff had not proceeded by way of arbitration, and that defendant had not raised the necessity of arbitration as a condition precedent to litigation or as an affirmative defense. The court was requested to determine whether it had jurisdiction to hear this matter and, if not, to determine affirmatively that the right to arbitration had not been waived and that arbitration was required. After a hearing, the court held that it had no jurisdiction because of the mandatory [41 Colo.App. 539] arbitration provision in the lease. Defendant appeals, and we reverse.

I

Relying on Colorado Real Estate & Development, Inc. v. Sternberg,164 Colo. 184, 433 P.2d 341 (1967), defendant first contends that arbitration was not a condition precedent to legal action in the case before us. In Sternberg the Court held that a contract provision requiring arbitration of " disputes" is inapplicable "where the question involved is merely an obligation to pay a liquidated sum of money." In the present case, however, the contract required arbitration of "controversies, claims and matters of difference." Without deciding whether plaintiff here seeks payment of a liquidated sum, we find that the disagreement was a "controversy, claim, and matter of difference," and was thus arbitrable under the parties' contract.

II

A valid and unwaived arbitration clause deprives the court of jurisdiction until the dispute has been submitted to arbitration. See Guthrie v. Barda, 188 Colo. 124, 533 P.2d 487 (1975); Zahn v. District Court,169 Colo. 405, 457 P.2d 387 (1969)....