Judd Const. Co. v. Evans Joint Venture

• Decision Date: 19 June 1980
• Docket Number: No. 79CA0785,79CA0785
• Citation: 619 P.2d 775,44 Colo.App. 406
• Parties: JUDD CONSTRUCTION COMPANY, Plaintiff-Appellee, v. EVANS JOINT VENTURE, Defendant-Appellant, and ACE TILE COMPANY, INC., d/b/a Ace Tile and Terrazo, Inc., Plaintiff, v. JUDD CONSTRUCTION COMPANY, Samuel Brown, Ronald Brown, Gary Moscok and Harold Kapelovitz, Defendants, and EVANS JOINT VENTURE, Third-Party Plaintiff, v. Joel JUDD, Third-Party Defendant. . I
• Court: Colorado Court of Appeals

Page 775

619 P.2d 775

44 Colo.App. 406

JUDD CONSTRUCTION COMPANY, Plaintiff-Appellee, v. EVANS JOINT VENTURE, Defendant-Appellant, and ACE TILE COMPANY, INC., d/b/a Ace Tile and Terrazo, Inc., Plaintiff, v. JUDD CONSTRUCTION COMPANY, Samuel Brown, Ronald Brown, Gary

Moscok and Harold Kapelovitz, Defendants, and EVANS JOINT VENTURE, Third-Party Plaintiff, v. Joel JUDD, Third-Party Defendant.

No. 79CA0785.

Colorado Court of Appeals, Div. I.

June 19, 1980.

Rehearing Denied Aug. 7, 1980.

Certiorari Granted Nov. 24, 1980.

Reckseen & Lau, P. C., Joel Judd, Northglenn, for plaintiff-appellee.

Hobbs & Waldbaum, P. C., William E. Brayshaw, Denver, for defendant-appellant.

SMITH, Judge.

Defendant Evans Joint Venture (Evans) appeals from a judgment entered against it in an action brought by Judd Construction Company (Judd) to confirm an arbitration award. Evans alleges that because other issues between it and Judd were left unresolved, entry of a final judgment was improper. We agree, and reverse and remand with directions.

In April 1978, Ace Tile Company, Inc. brought an action against Judd and Evans seeking recovery for materials and labor provided to Judd as the general contractor of a project owned by Evans. Both Judd and Evans filed answers to the complaint of Ace and also Evans filed counterclaims against Ace Tile and cross-claims against Judd.

On June 1, 1978, while the Ace suit was pending, Judd commenced an arbitration proceeding against Evans under the terms of the construction contract. Although the dispute for which arbitration was sought arose out of the same construction project as was involved in the action brought by Ace Tile, the cross-claims were not related to the actual subject matter involved in the arbitration proceeding. On November 2, 1978, the arbitrator entered an award in the amount of $14,236.62 in favor of Judd, but ordered Judd to hold Evans harmless for all claims which Ace Tile might establish in its pending action.

On November 13, 1978, Judd filed the instant action seeking confirmation of the arbitrator's award in district court under § 13-22-213, C.R.S. 1973 (1979 Cum.Supp.). On December 14, 1978, the court ordered consolidation of the Ace Tile action with the instant case. Although the issues raised by Ace Tile against Judd and Evans remained outstanding in the consolidated case, the court, on June 21, 1979, confirmed the arbitrator's award, and finding that there "was no just reason for delay" entered a judgment awarding Judd the amount due it under the arbitration award. Subsequent to the filing of this appeal, the parties stipulated to the dismissal with prejudice of the claims of Ace Tile against Evans, Judd and the individual defendants. This stipulation did not, however, affect the counter-claims and cross-claims filed by Evans.

A party to an arbitration may, after rendition of an arbitrator's award, commence an action in the district court seeking confirmation of such award and entry of a judgment in conformity therewith. §§ 13-22-213 and 13-22-216, C.R.S. 1973 (1979 Cum.Supp.). The court in which such action has been brought shall confirm the...