Thomas Wells and Associates v. Cardinal Properties, Inc.
| Decision Date | 06 December 1976 |
| Docket Number | No. C--827,C--827 |
| Citation | 557 P.2d 396,192 Colo. 197 |
| Parties | THOMAS WELLS AND ASSOCIATES, Petitioner, v. CARDINAL PROPERTIES, INC., a Texas Corporation, et al., Respondents. |
| Court | Colorado Supreme Court |
Dwight K. Shellman, Jr. & Associates, P.C., Dwight K. Shellman, Jr., Aspen, for petitioner.
Klingsmith, Russell, Angelo & Wright, P.C., Harrison F. Russell, Robert E. Wright, Jr., Gunnison, for respondents.
We granted certiorari to review the dismissal of a civil action and the termination of rights guaranteed by a mechanic's lien. The court of appeals affirmed the trial court's judgment dismissing the civil action and the mechanic's lien. Thomas Wells & Associates v. Cardinal Properties, Inc., Colo.App., 543 P.2d 1275 (1975). We reverse and remand to the court of appeals with directions that the case be remanded to the district court for a hearing and a factual determination on the waiver issue.
Both the trial court and the court of appeals dismissed the petitioner's claim for relief for architectural fees because of the petitioner's failure to arbitrate. The petitioner asserts that the arbitration requirements of the contract were waived by the parties and that the trial court dismissed the petitioner's complaint without a hearing on the factual issues. The petitioner was entitled to a hearing, including an opportunity to present evidence to sustain the claim of waiver. For that reason, we reverse.
Cardinal Properties, Inc. (hereinafter Cardinal) obtained a parcel of real estate from the Mid-Continent Life Insurance Company (hereinafter Mid-Continent), subject to the redemption of certain security and ownership interests. Thereafter, Cardinal entered into a standard American Institute of Architects contract to secure plans for the construction of condominiums. Cardinal went bankrupt. Mid-Continent obtained the rights of Cardinal by assignment. Extended litigation preceded dismissal, and dismissal occurred on the morning of trial when Mid-Continent asserted that failure to arbitrate defeated the plaintiff's claim. Five different complaints were filed which were the subject of complex answers and counterclaims. Wells claimed that the arbitration requirements of the contract had been waived, but was not granted a hearing on the issue of waiver. The trial court granted Mid-Continent's motion for summary judgment or to dismiss, holding that Mid-Continent had standing to assert the defense of failure to arbitrate and that Mid-Continent had not waived that defense. In granting Mid-Continent's motion, the trial court refused to consider evidence or to grant a hearing to determine whether waiver or estoppel would foreclose dismissal for failure to arbitrate.
The court of appeals relied on Wigton v. McKinley, 122 Colo. 14, 221 P.2d 383 (1950), for the proposition that 'a plaintiff may not assert, for the purpose of Mid-Continent's motion to dismiss, a position inconsistent with, and destructive of, its theory of the case.' From the pleadings and the record before us, we are unable to determine if the application of the rule in Wigton v. McKinley, supra, was appropriate in this case. Accordingly, the issue is not ripe for review, and we do not reach it here. 1
The court of appeals stated that the only ground urged by plaintiff at the hearing and on appeal to support a waiver was Mid-Continent's prior participation in the litigation without raising the arbitration clause in defense. Our view of the record indicates that at the hearing on the motion to dismiss, counsel for the plaintiff made an offer of proof regarding certain conversations between agents for Mid-Continent and Wells which, if fulfilled, would conceivably form a factual basis for a finding of waiver or estoppel.
As we said in Guthrie v. Barda, 188 Colo. 124, 533 P.2d 487 (1975):
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Cordillera Corp. v. Heard
...the issue is whether, as contended by defendant, the arbitration clause has been waived. See Thomas Wells & Associates v. Cardinal Properties, Inc., 192 Colo. 197, 557 P.2d 396 (1976). "Although the public policy of this state favors arbitration and, conversely, waivers of arbitration are d......
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Cordillera Corp. v. Heard
...however, the issue is whether, as contended by defendant, the arbitration clause has been waived. See Thomas Wells & Associates v. Cardinal Properties, Inc., Colo., 557 P.2d 396 (1976). Although the public policy of this state favors arbitration and, conversely, waivers of arbitration are d......
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Goebel v. Colorado Dept. of Institutions, 91SC218
...include those who received care from a facility located outside the northwest catchment area. See Thomas Wells and Associates v. Cardinal Properties, Inc., 192 Colo. 197, 557 P.2d 396 (1976) (pleadings are to be construed in favor of the pleader); Spomer v. City of Grand Junction, 144 Colo.......