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Campo v. Red Wing Wood Products, Inc.

Court of Appeals of Colorado, Second Division
Nov 16, 1971
491 P.2d 98 (Colo. App. 1971)

Opinion

         Nov. 16, 1971.

         Editorial Note:

         This case has been marked 'not for publication' by the court.

         Donald E. La Mora, Colorado Springs, for plaintiffs in error.


         Haney, Howbert & Akers, Roger Hunt, Colorado Springs, for defendant in error.

Page 99

         COYTE, Judge.

         This case was transferred from the Supreme Court pursuant to statute.

         This appeal arises from an action instituted by Red Wing Wood Products against Joseph Campo and Wade River, d/b/a Campo Construction Company, seeking judgment for the unpaid balance of a claim arising from a subcontract between these parties. Plaintiffs in error were defendants in the court below and will be referred to here as 'Campo.' Defendant in error was plaintiff in the court below and will be referred to as 'Red Wing.'

         Campo was the general contractor for a housing project constructed in Trinidad, Colorado. Red Wing, a manufacturer of kitchen cabinets, entered into a subcontract with Campo, in which it agreed to furnish and install kitchen cabinets for the project, pursuant to plans and specifications.

         The subcontract provided for a total contract price of $15,418.32, of which all but $5,232.98 had been paid prior to suit.

         Paragraph K of the subcontract provided as follows:

'It is mutually agreed by the Parties hereto that payment to Sub-Contractor may be held up for a period of time it takes to correct work in the event the work does not pass inspection of local, state, or Federal government authorities, or architect, or if work is proven faulty by the General Contractor, or if payment has not been received by General Contractor from owner * * *.'

         When the case was at issue, Red Wing filed a motion for summary judgment which was supported by an affidavit of the plant manager of Red Wing certifying that there was a balance of $5,232.98 due under the subcontract. Campo filed a counter-affidavit in which he alleged in part as follows:

'That said job has not been complete and has not been accepted by the Federal Housing Administration or the architect;

'That payment for said work has not been received by the General Contractor from the owner.'

         The trial court granted summary judgment in favor of Red Wing and against Campo. Campo has appealed, arguing that the trial court erred in granting Red Wing's motion for a summary judgment. We agree.

         The subcontract involved provides that Campo may withhold its required payment to Red Wing if certain conditions precedent have not been met. Campo's counter-affidavit raises factual issues involving these conditions precedent.

         The attorneys at oral argument agreed that Red Wing had completed its contract in a satisfactory manner. It is not clear whether the term 'work' in the subcontract refers to Red Wing's work or the entire project. It is therefore unclear whether Campo must receive payment for the entire project or for just Red Wing's work before the latter's claim is enforceable.

         As stated in McKinley Construction Co. v. Dozier, Colo., 487 P.2d 1335:

'A summary judgment denies a litigant the right to a trial of his case, and should therefore not be granted where there appears to be any controversy concerning the material facts. * * * It may or may not develop under the evidence that the defendant in error is entitled to prevail as a matter of law; but such a determination cannot be made at this juncture.'

         Judgment reversed and remanded to the trial court for further proceedings in conformity with this opinion.

         DWYER and DUFFORD, JJ., concur.


Summaries of

Campo v. Red Wing Wood Products, Inc.

Court of Appeals of Colorado, Second Division
Nov 16, 1971
491 P.2d 98 (Colo. App. 1971)
Case details for

Campo v. Red Wing Wood Products, Inc.

Case Details

Full title:Campo v. Red Wing Wood Products, Inc.

Court:Court of Appeals of Colorado, Second Division

Date published: Nov 16, 1971

Citations

491 P.2d 98 (Colo. App. 1971)