Koustas Realty, Inc. v. Regency Square Partnership , 1986 Colo. App. LEXIS 944 ( 1986 )

VAN CISE, Judge,

dissenting.

This case hinges on whether Butcher was a third-party defendant at trial and, therefore, under the second sentence of C.R.C.P. 47(h), entitled to extra challenges, or whether he was a party to the suit on the defense side and, therefore, under the first sentence of C.R.C.P. 47(h) and Blades v. DaFoe, 704 P.2d 317 (Colo.1985), not entitled to additional challenges. Here, he was both.

The parties and the court treated Butcher as dismissed from the action after the entry of the 1978 summary judgment. Butcher was first brought back into the suit via the other defendants’ third-party complaint and Butcher’s answer. Later, on Koustas’ motion and court action thereon, he was reinstated as a party defendant in the first claim. However, the third-party action was still pending at the commencement of trial, and was not terminated until Butcher was dismissed from the case on directed verdict several days later. During these proceedings, Butcher had his own attorneys; the partnerships and their partners were represented by a different firm.

Under the circumstances of this case, where the two sentences in C.R.C.P. 47(h) are in conflict and point to different results, I view the decision whether to allow additional peremptory challenges as being within the sound discretion of the trial court. Since there was no showing of prejudice to Koustas in allowing the additional challenges, and in view of Koustas’ refusal of the offer of another challenge, I see no abuse of discretion here. I would affirm the judgment.