Perlmutter v. Harmony Homes, Inc., 82CA0135

• Decision Date: 01 September 1983
• Docket Number: No. 82CA0135,82CA0135
• Citation: 677 P.2d 381
• Parties: Joseph J. PERLMUTTER and Rosemary Perlmutter, Plaintiffs-Appellees, v. HARMONY HOMES, INC., a Colorado corporation, Defendant-Cross-Claimant-Appellee, and Frederick P. Blessing and Peak Engineering, Inc., a Colorado corporation, Defendants-Cross-Claimants-Appellants. . I
• Court: Colorado Court of Appeals

Page 381

677 P.2d 381

Joseph J. PERLMUTTER and Rosemary Perlmutter, Plaintiffs-Appellees, v. HARMONY HOMES, INC., a Colorado corporation,

Defendant-Cross-Claimant-Appellee,

and

Frederick P. Blessing and Peak Engineering, Inc., a Colorado

corporation, Defendants-Cross-Claimants-Appellants.

No. 82CA0135.

Colorado Court of Appeals, Div. I.

Sept. 1, 1983.

Rehearing Denied Oct. 13, 1983.

Barash & LeHouillier, Patric J. LeHouillier, Colorado Springs, for plaintiffs-appellees.

Steven J. Barr, Colorado Springs, for defendants-cross-claimants-appellants.

BABCOCK, Judge.

The sole issue presented by this appeal is whether the trial court correctly applied the provisions of the Uniform Contribution Among Tortfeasors Act, §§ 13-50.5-101, et seq., C.R.S.1973 (1982 Cum.Supp.) to the judgment entered in favor of Joseph J. Perlmutter and Rosemary Perlmutter (plaintiffs) against Harmony Homes, Inc., (builder) and Frederick P. Blessing and Peak Engineering, Inc. (engineer).

Following trial, the court found that builder breached its implied warranty of habitability and was negligent in construction of the retaining wall, foundation, and drainage system of plaintiffs' house, and that engineer was negligent in the design of the foundation and drainage system. Judgment was entered accordingly.

Thereafter, engineer filed a motion for new trial claiming that plaintiffs' judgment against it should be reduced by the amount paid by builder to plaintiffs prior to trial in exchange for a release. After hearing, the court adjusted its original judgment. Plaintiffs were awarded damages in the amount of $67,037.75 against builder for breach of implied warranty of habitability. Plaintiffs were awarded damages in the amount of $44,427.33 against builder and engineer, jointly and severally, for negligence in construction and design, to be included in the $67,037.75 award. The court further ordered that plaintiffs were "entitled to execution against the [engineer] in the sum of $37,037.75 together with interest and costs, this sum representing the amount paid for the release [$30,000] taken against the liability of [builder] on the whole."

The trial court's judgment with respect to execution against engineer is erroneous in two respects. First, builder's liability to plaintiffs is not $67,037.75 as determined by the trial court, but rather $30,000 as agreed upon by plaintiffs and builder. By entering into the release, plaintiffs avoided the inherent risks of trial by assuring...