Kovacheff v. Langhart

• Decision Date: 24 July 1961
• Docket Number: No. 19102,19102
• Citation: 363 P.2d 702,147 Colo. 339
• Parties: Nick KOVACHEFF and Mary Kovacheff, Plaintiffs in Error, v. Victor D. LANGHART and John F. McGuire, d/b/a Langhart and McGuire, Architects, Defendants in Error.
• Court: Colorado Supreme Court

Page 702

363 P.2d 702

147 Colo. 339

Nick KOVACHEFF and Mary Kovacheff, Plaintiffs in Error, v. Victor D. LANGHART and John F. McGuire, d/b/a Langhart and McGuire, Architects, Defendants in Error.

No. 19102.

Supreme Court of Colorado, En Banc.

July 24, 1961.

Norton Frickey, E. V. Holland, Denver, for plaintiff in error.

Ryan, Sayre & Martin, Rupert M. Ryan, Boulder, for defendants in error.

MOORE, Justice.

The parties appear here in the same order as they appeared in the trial court.

In their complaint plaintiffs alleged that they instructed defendants, who were licensed architects, to prepare plans and specifications and make estimates for the construction of a building the cost of which was not to exceed $110,000, and that defendants then represented that they would charge a total consideration of six per cent of construction costs for their services; that thereafter, on August 11, 1958, the parties entered into a written contract in which defendants agreed to perform such services for ten per cent instead of six per cent as originally represented. They further alleged that the estimated cost of the building as planned by the architects was in excess of $150,000; that they paid defendants $2,340.55 as required by the written contract, and that they were entitled to the plans, specifications and estimates for the building; that defendants did not exercise that degree of care and skill required of an architect in the preparation of the plans, specifications and estimates, all to their damage in the sum of $2,340.55 for which they asked judgment. Plaintiffs, in addition to the claim for damages, sought rescission of the written contract between the parties.

Defendants filed their answer in which they admitted the contract; admitted that they prepared the plans and specifications and made the estimate for the building; and that they had received $2,340.55; but denied the other material allegations of the complaint. They filed a counterclaim in which they alleged that pursuant to the terms of the written contract between the parties, they completed the preliminary studies, and were paid by plaintiffs as in said contract provided; that thereafter they prepared a cost estimate, and upon completion of same they were authorized by plaintiffs to prepare the general working drawings and specifications; that plaintiffs also authorized them to obtain bids upon the work outlined, which was done, and that following the bids, plaintiffs decided to abandon the actual construction. They further alleged full performance by them and sought a judgment for the balance of their fees and expenses under the contract.

Plaintiffs denied all of the material allegations in the defendants' cross complaint.

After the case was set for trial plaintiffs filed a motion under Rule 97 R.C.P. Colo. to disqualify the trial judge assigned to the case on the grounds: 1. That they had waived their right to a trial by jury on the assumption that another judge to whom the case was originally assigned would conduct the trial. 2. That the trial judge had formed an opinion and could not render a fair and impartial trial because: (a) Plaintiffs' attorney had theretofore been ridiculed and denounced in open court by said trial judge who had a strong dislike for him; (b) during a time when litigation was pending against plaintiffs' attorney and others before the same trial judge, the court invited another attorney, who was apparently involved in the litigation, to his office to review another matter with the possibility of another count being added in said litigation; and (c) that the trial judge was formerly associated in the practice of law with one of the attorneys for the defendant.

Plaintiffs' counsel took no steps to call said motion up for hearing, but on the day the trial was scheduled to begin, the judge whose qualifications to preside were challenged proceeded on his own initiative to dispose of it. He took the position that the motion, supported by affidavit, was sufficient for him to be fully apprised of all of the reasons why plaintiffs sought to disqualify him, and that nothing could be gained by taking evidence. He then proceeded, in open court before all parties and their attorneys to comment upon each of the grounds asserted by plaintiffs as disqualifying him, and rejected them. He then denied the motion and insisted that the trial proceed on its merits as scheduled. No motion for a continuance was made, and no showing to establish that any evidence was unavailable to plaintiffs as a result of immediate trial following the ruling on the motion to disqualify the trial judge.

Following presentation of the evidence and of the arguments of counsel, judgment was entered against plaintiffs on their complaint and in favor of defendan...