Zahn v. District Court In and For Weld County
Decision Date | 22 July 1969 |
Docket Number | No. 24187,24187 |
Citation | 457 P.2d 387,169 Colo. 405 |
Parties | John H. ZAHN and Rose Marie Zahn, Petitioners, v. The DISTRICT COURT IN AND FOR the COUNTY OF WELD, in the Nineteenth Judicial District, State of Colorado, and the Hororable Hugh H. Arnold, one of the Judges thereof, and Alvin A. Starck and Lawrence W. Starck, d/b/a Starck Bros. Construction Co., Respondents. |
Court | Colorado Supreme Court |
William L. West, Greeley, for petitioners.
John Perrott, Berthoud, for respondents.
This proceeding is brought pursuant to R.C.P.Colo. 116 by which petitioners seek relief in the nature of mandamus against respondents.
Petitioners, John H. Zahn and Rose Marie Zahn, were plaintiffs in the trial court and by their complaint against defendants, Alvin A. Starck and Lawrence A. Starck, doing business as Starck Bros. Construction Co., sought damages for breach of a construction contract.
Plaintiffs' complaint against defendants is based upon the alleged unskillful and negligent construction of a house by defendants for plaintiffs, contrary to the plans and specifications and in violation of applicable laws, regulations and building codes. The complaint specifies 64 separate deficiencies in the construction, which will require the expenditure of $10,500 to correct, for which sum plaintiffs pray damages from defendants.
Defendants filed their motion to dismiss or, in the alternative, to stay all proceedings in the trial court, upon the grounds that plaintiffs had refused to comply with an arbitration clause contained in the written construction contract between the parties, although defendants were ready, willing and able to arbitrate any and all disputes arising under the contract. The arbitration clause provided as follows:
The trial court denied the motion to dismiss. However, the court granted the motion to stay proceedings in the trial court until an arbitration was had in accordance with the terms of the arbitration clause in the agreement.
Petitioners seek relief here to compel the trial court to vacate its order staying the trial proceedings, and to require the defendants to answer or otherwise plead to the merits of plaintiffs' complaint and to proceed to trial of the case on its merits. In response to this...
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...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). Here, however, the issue is whether, as contended by defendant, the arbitration clause has been waived. See Thomas Wells......
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