Opinion
George J. Duckworth, Denver, for defendant-appellee, Foster Frosty Foods, Inc.
P. Arthur Tague, P. C. James R. Craig, Jr., Littleton, for plaintiff-appellant.
Litvak, Schwartz & Karsh, Alan E. Karsh, Denver, for defendant-appellee, Robert Jump, Jr.
DWYER, Judge.
Charles H. Williams, plaintiff-appellant, brought this action to foreclose a mechanic's lien upon real property owned by defendant-appellee, Foster Frosty Foods, Inc. Plaintiff, a painting subcontractor, claimed the lien for work on improvements located on the property. Plaintiff did the work pursuant to a contract with Custom Crafters, the principal contractor on the job. Upon trial fo the case, plaintiff's action to foreclose the mechanic's lien was dismissed, and he seeks a reversal of this adverse judgment. There were other claims, cross-claims, and counter-claims asserted in the action, but the judgments entered on such claims are not involved in this appeal.
After plaintiff presented his evidence and announced that he had rested, defendant Foster Frosty Foods, Inc., moved for a dismissal of plaintiff's action. This motion was granted on the basis that plaintiff had failed to establish that he had complied with the requirements of C.R.S.1963, 86--3--10. Under this statute, a notice of lis pendens is a prerequisite to the establishment of a lien right as against the owner of property for the debt upon which the lien is based. Kalamath Investment Co. v. Asphalt Paving Co., 153 Colo. 109, 384 P.2d 938. In presenting his case, plaintiff failed to introduce into evidence a notice of lis pendens proving compliance with the statute, and the court ruled that he had failed to establish a prima facie case. Plaintiff then moved to reopen his case, but the court denied the motion and entered a final judgment dismissing plaintiff's action.
On this appeal, plaintiff contends that the court abused its discretion in refusing to allow him to reopen his case to put the lis pendens in evidence.
A trial court has the discretionary power to permit a party who has rested his case to reopen the case for the purpose of presenting further evidence. Green v. Pullen, 115 Colo. 344, 173 P.2d 458; Plummer v. Struby-Estabrooke Mercantile Co., 23 Colo. 190, 47 P. 294. In moving to reopen the case, the attorney appearing for plaintiff in the trial court stated that he had failed to introduce the lis pendens in evidence through inadvertence. The court, in the exercise of its discretion, should have granted plaintiff's motion to reopen. Plaintiff sought to prove the fact that the requisite lis pendens had been filed, and such fact was provable by a document of an indisputable and incontrovertible nature. Reopening the case would have facilitated a determination of the action of the merits, and the defendant would not have been prejudiced in maintaining his defense on the merits.
The judgment is reversed, and the cause is remanded for a new trial.
PIERCE and SMITH, JJ., concur.