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OPINION
WALTERS, Justice.
Defendant-appellant Mountain Development Corporation (MDC) entered into two lease-option-to-purchase contracts with Petro-Lift. Petro-Lift is not a party to this appeal. The first lease involved an eighteen-ton crane, and the lease expired on March 1, 1985. The second lease involved a twenty-ton crane, and that lease expired on March 15, 1985.
The terms and conditions of the option to purchase were primarily oral agreements; however, Cranetex stipulated, and the trial court found that the language contained in Schedule A of the two leases constituted an option to purchase which left open certain particulars of performance including the date, time, and manner of exercise of the option.
In May 1984, Petro-Lift assigned its interest in the leases to plaintiff-appellee Cranetex. On February 19,1985, Cranetex sent a letter to MDC stating that “[i]f you do choose to purchase, the total amount owing will be due and payable on the exercise date.” MDC responded by a letter on February 25, 1985, indicating that it had “decided to exercise [its] purchase option upon completion of the leases.” MDC informed Cranetex that they were “in the process of transferring the required funds through the Corporation, and will make payment in full upon completion of transfer.”
On March 5, 1985, Cranetex sent MDC a telegram which indicated that because payment in full had not been received on March 1, 1985, MDC was to immediately stop using the eighteen-ton crane.
On March 10,1985, MDC contacted Cranetex to determine the exact amount which would be due and owing pursuant to the “additional expense” clause of the lease. Cranetex told MDC to contact its attorney, and two days later Cranetex filed suit to replevy the eighteen-ton crane. Cranetex later amended its complaint to include a suit to replevy the twenty-ton crane.
The trial court entered a judgment in favor of Cranetex, and denied MDC’s requested relief on its counterclaim. MDC appeals, and we reverse the trial court.
MDC’s basic contention is that the trial court erred in concluding that, pursuant to NMSA 1978, Section 55-2-311, Cranetex was the proper party to determine the particulars of performance of the option to purchase.
Section 55-2-311 in pertinent part provides:
An agreement for sale which is otherwise sufficiently definite to be a contract is not made invalid by the fact that it leaves particulars of performance to be specified by one of the parties. Any such specification must be made in good faith and within limits set by commercial reasonableness. (Citations omitted; emphasis added.)
Under the Uniform Commercial Code, it is generally stated that “[t]o the extent that the contract does not expressly regulate any matter relating to the exercise of such powers, the continuing pre-Code contract law will supply the answer.” 2 R. Anderson, Uniform Commercial Code 2-311:12 (1982). See NMSA 1978, § 55-1-103. Neither of the leases defined which party was to determine the particulars of the option to purchase; we look, therefore, to pre-Code contract law to resolve matters relating to the exercise of the option.
In accordance with general rules of contract law, if an agreement grants an option to purchase, and “is silent as to the time at which payment of the stipulated purchase price is to be made, the option may ordinarily be exercised by the optionee without making or tendering payment at the time of ... such exercise.” Annotation, Necessity for Payment or Tender of Purchase Money Within Option Period in Order to Exercise Option, in Absence of Specific Time Requirement for Payment, 71 A.L.R.3d 1201, 1219 (1976) (emphasis added). See also Newberry v. McClaren, 264 Ark. 735, 575 S.W.2d 438 (1978); Dave Williams Printing Co. v. Wooten, 644 S.W.2d 403 (Tenn.App.1982).
The lease agreements which granted MDC the option to purchase were silent as to the time of payment; thus, on February 25, 1985, MDC properly exercised the option to purchase by giving Cranetex written notice of its intent to purchase the cranes.
Additionally, MDC was prepared to make full payment on the cranes within a reasonable time after the leases expired. On March 27, 1985, within two weeks of the lease expiration on the twenty-ton crane and within four weeks of the lease expiration on the eighteen-ton crane, MDC presented a check payable to Cranetex for the purchase price of both cranes, together with late charges calculated through March 18, 1985. Cranetex refused the payment.
The manner in which MDC notified Cranetex of its election to purchase the cranes, and presentment of full payment in fewer than thirty days from expiration of the leases, were acts done in a reasonable fashion, and certainly within a reasonable time, as required by the Uniform Commercial Code. See NMSA 1978, § 55-1-204(3).
The trial court is reversed and the cause remanded for further proceedings on MDC’s counterclaim.
Costs of this appeal are assessed against Cranetex. SCRA 1986, 12-403.
IT IS SO ORDERED.
SCARBOROUGH, C.J., and STOWERS, J., concur. | [
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OPINION
DONNELLY, Chief Judge.
Plaintiff appeals from an order granting summary judgment and dismissing its complaint seeking subrogation. Two appellate issues are presented: (1) whether the trial court erred in granting summary judgment; and (2) whether the trial court accorded plaintiff a reasonable opportunity to be heard. We reverse and remand.
Plaintiff, an insurance company, issued a policy of insurance to Jack Harlow, providing, among other things, coverage for property damage to an airplane owned by Harlow. Plaintiff’s complaint alleged that its insured, Harlow, was piloting the aircraft on October 5, 1984, while receiving flight instruction lessons from defendant, Charles F. Bingham, and that defendant negligently failed to advise Harlow to lower the aircraft’s landing gear prior to making an approach for landing. Plaintiff also alleged that as a result of the claimed negligence, its insured’s aircraft was damaged in the amount of $9,861.44, and that it was entitled to $8,861.44 in subrogation for monies paid for repairs.
Defendant filed a motion for summary judgment contending that there were no existing issues of material fact. Plaintiff responded asserting that defendant’s motion lacked any supporting affidavits and failed to specify the grounds upon which the motion was premised. Plaintiff also filed an affidavit of Jack Harlow in opposition to the motion for summary judgment.
At the motion hearing, defendant argued that under the terms of the insurance policy relied upon by plaintiff, defendant was acting as a flight instructor for Harlow, had Harlow’s permission to assist in operating the aircraft and was, therefore, an “insured” under the terms of the insurance policy. After defendant concluded his initial argument, plaintiff’s attorney stated to the court that the motion for summary judgment did not specify the ground for defendant’s motion, that plaintiff had filed a written response to the motion seeking a more definite statement of the basis for the motion, and that defendant had not responded. At the hearing, plaintiff also stated that:
[W]hat we are asking for Your Honor, first of all is [to] deny the summary judgment and I’ll get into that for grounds but alternatively to compel the Defendant to state upon what specific information, pleadings and discovery that he referred to in his motion that he is relying on for his motion for summary judgment, so that we can adequately prepare * * * I don’t think that that’s equitable for my client without [a] more definite statement upon which he relies [to respond to] his motion for summary judgment.
COURT: I’ll grant your motion for summary judgment.
MR. THUTE: Your Honor, I hadn’t finished yet with my presentation.
COURT: He’s obviously covered under that policy as far as I can see.
MR. THUTE: Will the court allow me to make my presentation?
COURT: No. You can take an appeal if you want to.
On appeal, plaintiff argues that at the time of the motion hearing, it was not fully apprised of the basis for defendant’s motion and had sought clarification from defendant regarding the grounds for the motion. Plaintiff contends additionally that the trial court denied it the opportunity to adequately respond to defendant’s argument, thus violating due process of law, and that a material issue of fact existed precluding summary judgment.
Defendant’s motion for summary judgment recited as follows:
Defendant [moves for entry of] Summary Judgment * * * As grounds therefore, the Defendant respectfully states as follows:
1. There are no issues of fact or law remaining to be resolved by a Trial on the Merits, and Defendant is entitled to Summary Judgment based upon the Affidavits, Pleadings and Discovery of Record in this matter.
SCRA 1986,1-007(B)(1) provides that motions “shall state with particularity the grounds therefor.” See also United States v. Krasnov, 143 F.Supp. 184 (E.D.Pa.1956); see generally 5 C. Wright & A. Miller, Federal Practice & Procedure, § 1192 (1969). Where a party has timely alerted the trial court to the lack of specificity and difficulty in responding to a general motion, the trial court should carefully evaluate the prejudice which may result if the motion is heard or ruled upon without ordering further clarification of the grounds upon which the motion is premised.
The underlying purpose of Rule 1-007(B) is to inform a party of the basis for his opponent’s motion. In Steingut v. National City Bank, 36 F.Supp. 486, 487 (E.D.N.Y.1941), the court observed that, in considering a motion for summary judgment, courts should ensure compliance with Rule 1-007, otherwise the purpose and intent of the rule will be “whittled away and become meaningless.” In ruling on a motion for summary judgment, a trial court, however, is not restricted to the ground specified in the motion. The trial court may enter judgment on a ground not mentioned in the motion where it appears that summary judgment is otherwise appropriate. Broderick v. Wood Prod. Co. v. United States, 195 F.2d 433 (10th Cir.1952); Board of Nat’l Missions of Presbyterian Church v. Smith, 182 F.2d 362 (7th Cir.1950). A party opposing summary judgment, however, should be accorded a fair opportunity to submit materials and to argue the propriety of the motion. See Santistevan v. Centinel Bank of Taos, 96 N.M. 734, 634 P.2d 1286 (Ct.App.1980).
In considering a motion for summary judgment, the court may, but is not required to, hold an oral hearing. See Erco Indus. Ltd. v. Seaboard Coast Line R.R. Co, 644 F.2d 424 (5th Cir.1981); Spark v. Catholic Univ. of Am., 510 F.2d 1277 (D.C.Cir.1975); People in Interest of F.L.G., 39 Colo.App.194, 563 P.2d 379 (1977); cf. United Nuclear Corp. v. General Atomic Co., 93 N.M. 105, 597 P.2d 290 (1979). Disposition of a motion for summary judgment, without oral argument, is appropriate when the opposing party has had an adequate opportunity to respond to movant’s arguments through the briefing process. See Allied Chem. Corp. v. Mackay, 695 F.2d 854 (5th Cir.1983); Nolan v. de Baca, 603 F.2d 810 (10th Cir.1979) (parties briefed issues extensively, filed affidavits and stipulated facts); Shearer v. Homestake Min. Co., 557 F.Supp. 549 (D.S.D.1983); cf. Cia Petrolera Caribe, Inc. v. Arco Caribbean, Inc., 754 F.2d 404 (1st Cir.1985) (documentary material indicated only issue was question of law that had been adequately developed in briefs); Sarelas v. Porikos, 320 F.2d 827 (7th Cir.1963).
Due process considerations require notice of the proceedings and an opportunity to respond. United Nuclear Corp. v. General Atomic Co.; Parker v. United Airlines, Inc., 32 Wash.App. 722, 649 P.2d 181 (1982). Where the court relies upon oral argument as the means for responding to the motion for summary judgment, due process requirements compel that each party be permitted a reasonable opportunity to be heard. See Carrigg v. Anderson, 167 Kan. 238, 205 P.2d 1004 (1949). Here, defendant’s motion for summary judgment lacked supporting affidavits or any factual explanation for its basis. Defendant did not file any brief accompanying its motion and plaintiff was denied an opportunity to respond to the merits of the motion.
Plaintiff additionally contends that a material factual issue existed as to whether or not defendant was an employee of Morgan Aviation, and hence, was excluded from the policy of insurance, or whether defendant was hired directly by Harlow to provide flight instruction. Defendant asserts he made a prima facie showing that he was entitled to summary judgment and thereby shifted the burden to plaintiff to establish the existence of a genuine material issue of fact. See Koenig v. Perez, 104 N.M. 664, 726 P.2d 341 (1986); SCRA 1986, 1-056(C). Defendant argues additionally that the primary issue before the court involved the interpretation of the insurance policy, and that summary judgment was proper because the facts before the court were clear and undisputed. See Sanders v. Smith, 83 N.M. 706, 496 P.2d 1102 (Ct.App.1972). We disagree.
Resolution of whether defendant comes within the definition of an insured requires a determination as to whether defendant, at the time of the accident, was an employee of Morgan Aviation, and whether the latter was a flying school within the meaning of the exclusionary language contained in the insurance policy. A factual issue existed as to whether defendant came within the ambit of the exclusionary language of the policy and whether defendant was in fact an employee of Morgan Aviation or whether he was hired directly by plaintiff’s insured. A reference appears in defendant’s deposition indicating that a W-2 form was issued by his employer. The record, however, does not reveal the name of the entity that issued this form.
Summary judgment is not proper if equally logical but conflicting inferences can be drawn from the facts before the court. Fischer v. Mascarenas, 93 N.M. 199, 598 P.2d 1159 (1979); Pena v. New Mexico Highway Dept., Mountain States Mut. Ins. Co., 100 N.M. 408, 671 P.2d 656 (Ct.App.1983). A party opposing a motion for summary judgment is to be given the benefit of all reasonable doubts in determining whether a genuine issue of material fact exists. Skarda v. Skarda, 87 N.M. 497, 536 P.2d 257 (1975). Similarly, summary judgment is not appropriate when the facts before the court are insufficiently developed or where further factual resolution is essential for determination of the central legal issues involved. Robert Johnson Grain Co. v. Chemical Interchange Co., 541 F.2d 207 (8th Cir.1976); Eby v. Reb Realty, Inc., 495 F.2d 646 (9th Cir.1974).
The order of summary judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.
IT IS SO ORDERED.
FRUMAN and APODACA, JJ., concur.
. The insurance policy contained a provision excluding as an "insured,” "[A]ny person or organization or any agent thereof (other than any employee of the Named Insured while acting in the course of his employment by the Named Insured) engaged in * * * the operation of * * commercial flying service or flying school with respect to any occurrence arising out of * * * operations.” | [
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OPINION
SCARBOROUGH, Chief Justice.
Defendant-Appellant appeals the trial court’s grant of judgment in favor of Plaintiff-Appellee on a complaint for foreclosure and denial of counterclaims. We affirm in part and remand in part for findings on the award of attorney’s fees.
Defendant-Appellant (buyer) purchased a remote twenty acre tract in Santa Fe County, New Mexico, from Plaintiff-Appellee (seller) and seller’s brother, the Third-Party Defendant, for $80,000. Buyer and seller entered into a note and mortgage which provided for a sixty day default period. However, the note did not contain an acceleration clause. Buyer made payments on the note through August 1983 and has made no further payments since then because buyer claimed seller was obligated under the agreement to gravel the road with subgrade preparation and compacted basecourse to allow access by “passenger car” (by which she meant a 1965 Lincoln Continental) for a period of several years without need for maintenance. The property was originally a mining claim serviced by a steep dirt road which suffered erosion following wet weather. Expert witnesses testified at trial that to build such a permanent road would cost between $85,000 and $118,000.
The purchase agreement included the condition, “[sjeller agrees to upgrade existing roadway to allow accessibility by passenger car, prior to closing.” The trial court entered a finding in compliance with this obligation, seller cleared obstructions, leveled and widened the road at certain places and cut diversion channels for the annual snow and rain runoff. However, buyer did not maintain the road on a regular basis so the road deteriorated. Buyer then counterclaimed for damages because she could not gain access to the property year round.
The trial court found that seller did not breach the contract with regard to the “upgrading” of the road and no damages were allowed to the buyer on the counterclaims. The court held that seller should be allowed to recover the principal due on the note in the amount of $54,355.30. We affirm.
Buyer first argues that seller was not entitled to foreclose the mortgage because he did not prove the underlying note to the mortgage. The trial court found that the mortgage incorporated by reference the proffered note and that no other note or contract of any sort was proved by the parties. The trial court concluded that the parties entered into a valid agreement whereby buyer purchased and seller sold a parcel of land and that the agreement was expressed in a promissory note and secured by a mortgage. This court has held that if a note and mortgage are made at the same time and in relation to the same subject as parts of one transaction, they will be construed together as if they were parts of the same instrument. Comer v. Hargrave, 93 N.M. 170, 598 P.2d 213 (1979), Samples v. Robinson, 58 N.M. 701, 275 P.2d 185 (1954). Here, there is no question that buyer and seller signed the note. The trial court’s ruling is correct.
Buyer next argues that because the note did not contain an acceleration clause, seller could not foreclose on the mortgage for the entire unpaid balance of the note. Buyer argues that the seller’s only remedy in this case is to bring suit each month as the breach occurs. We disagree. The trial court found that as a matter of law buyer’s obligation was to pay the purchase price of the property in monthly installments after August 1983. The trial court accelerated payment on the entire unpaid balance and allowed foreclosure for that amount. If there is substantial evidence which a reasonable mind accepts as adequate to support a conclusion, the findings of the trial court shall not be disturbed. Sandoval v. Dep’t. of Employment Sec., 96 N.M. 717, 718, 634 P.2d 1269, 1270 (1981). The verdict of the trial court will stand as long as the findings are supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate support for a conclusion. Anaconda Co. v. Property Tax Dep’t, 94 N.M. 202, 211, 608 P.2d 514, 523 (Ct.App.1979), cert. denied, 94 N.M. 628, 614 P.2d 545 (1980). In this case, there is evidence to support the trial court’s finding that buyer did have an obligation to pay the mortgage payments and that she was in substantial breach as she made no payments from August 1983 until the present time.
The absence of a specific clause providing for acceleration is no bar to a foreclosure action where there has been absolutely no payment of either interest or principal since August 1983. We have held that, “One who holds a note secured by a mortgage has two separate and independent remedies, which he may pursue successively or concurrently; one is on the note against the person and property of the debtor, and the other is by foreclosure to enforce the mortgage lien upon his real estate.” State ex rel. Hill v. District Court, 79 N.M. 33, 35, 439 P.2d 551, 553 (1968) (quoting Porter v. Alamocitos Land & Livestock Co., 32 N.M. 344, 353, 256 P. 179, 183 (1927)). In this case, the note provided for a sixty day default period and the seller notified buyer in writing of the breach. Were it not for foreclosure, the seller would have no remedy in this case as buyer is now indigent. See Carmichael v. Rice, 49 N.M. 114, 158 P.2d 290 (1945), and Comer v. Hargrave, 93 N.M. 170, 598 P.2d 213 (1979).
Finally, buyer argued that the trial court erred in allowing seller to collect attorney’s fees and costs. “An attorney is, of course, entitled to recover the reasonable value of his professional services as provided in the note. Among the many factors which properly may be considered in a determination thereof are the nature and extent of the services, the time necessarily consumed, the professional skill and experience of the attorney, and the results accomplished. Each case must be governed by its own facts and circumstances.” Featherstone v. Barash, 382 F.2d 641, 644 (10th Cir.1967); Fryar v. Johnsen, 93 N.M. 485, 601 P.2d 718 (1979); SCRA 1986, 16-105. No evidence is in the record to show how much time was spent, nor what expertise was required in handling this case. There is nothing to support either the reasonableness or excessiveness of the fees.
We remand and order the trial court to hold a hearing on the issue of reasonableness of attorney’s fees.
IT IS SO ORDERED.
STOWERS and RANSOM, JJ., concur. | [
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OPINION
SOSA, Senior Justice.
Eva Dennison (lessor) filed a complaint for forcible entry and unlawful detainer of real property against Steve and Patty Marlowe (lessees), husband and wife. Lessor prayed for restoration of the premises and damages for unpaid rental. Lessees filed a counterclaim seeking, inter alia, to have lessor remedy certain safety code violations in the leased building, damages for remodeling and alterations, for depreciated value of fixtures and equipment, and for lost income. The trial court dismissed lessees’ counterclaim and entered judgment in lessor’s favor for $13,600, plus $1000 for at torney’s fees. Lessees appeal. We reverse and remand.
FACTS
On June 23, 1983, lessees leased a two-story building and a parking area from lessor for a term of five years at a rental of $800 per month. The building is known as the “Great American Saloon.” The lease agreement had an option to renew for an additional five years and an option to purchase. About one year later, on May 14,1984, lessees received a letter and cease and desist order from the State Fire Marshal, advising them that the building was in violation of the New Mexico State Rules and Regulations Relating to Fire Prevention and Life Safety in Public Occupancies (safety code). Attached to the letter was a report from Fire Prevention Specialist Bill Beutler who found various safety code violations, including the absence of an automatic sprinkler system. The sprinkler system was required because the entire interi- or of the building was of wood construction. Lessees appealed the cease and desist order, maintaining that they were not the owners of the building and had not changed the use of the premises. The building had been operated as a restaurant/bar for several years. Lessees also advised lessor of the order and requested that she comply with the safety code requirements. At lessor’s request, lessees obtained bids for the installation of the sprinkler system and fire escapes. Anticipating that lessor would pay for the cost of the installation, lessees made some additional repairs and alterations towards compliance with the safety code at a cost of approximately $2200.
On September 7, 1984, a hearing was held before the State Fire Board on lessees’ appeal. Lessor, as owner of the building, was included as a party defendant to the order. The Board gave the parties thirty additional days to install the sprinkler system, but ordered that the second floor of the premises be closed if the system was not installed by October. Lessor was advised of the thirty-day extension. She, however, informed lessees that if they wanted to use the second floor, they would have to pay for the installation of the sprinkler system. The improvements were not made and the second floor was closed. By closing this portion of the building the seating capacity dropped from 255 persons to about 118 persons.
In October lessees began paying $320 per month for rental of the first floor. They continued paying this amount until July 1985. From August 1985 through the date of trial on June 16, 1986, lessees paid no rent, but continued to use the first floor of the premises.
On August 14, 1986, the trial court entered judgment in favor of lessor for the entire past due rent commencing from October 1984 through June 1986, totaling $13,600. The court further ordered that the lease agreement be terminated and that the premises be returned to the lessor without removal of any alterations or improvements. Because lessees failed to deliver the premises by September 12, 1986, the trial court issued a writ of restitution. This appeal followed.
On appeal lessees raise several points of error, but we will not set them out in detail. They collectively raise the question of whether under the terms of the contract the lessees, and not the lessor, were liable for the expense of installing the sprinkler system ordered by the public authority. Courts in other jurisdictions have considered who as between landlord and tenant must bear the expense of making alterations, improvements, or repairs ordered by public authorities. This issue is one of first impression in New Mexico.
An overwhelming number of jurisdictions have held that when a tenant has agreed to comply with the laws and regulations of governmental authorities and the alterations or improvements ordered by the public authority are of a structural or substantial nature, the landlord instead of the tenant is liable for such alterations unless the terms of the covenant and the surrounding circumstances indicate the tenant's intention to assume such an obligation. See, e.g., Zeibig v. Pfeiffer Chemical Co., 150 Mo.App. 482, 131 S.W. 131 (1910); Puget Inv. Co. v. Wenck, 36 Wash.2d 817, 221
P.2d 459 (1950). This rule is followed because the property owner is initially under the duty to comply with all laws and orders unless it is assumed by the lessee under the terms of the lease. 1 A.J. Casner, American Law of Property § 3.80, at 353-55 (1952). Thus, the intention of the parties as expressed in the lease agreement in light of the surrounding circumstances is determinative.
The lease contains the following pertinent provisions:
5. It is agreed that in the event any repairs, alterations or improvements be added to the premises or the existing improvements, the same shall become part of the realty and at the expiration of this lease, the improvements shall remain as part of the real property.
6. Lessor agrees to maintain the roof, plumbing and exterior of the demised premises in good repair and condition at [her] sole cost and expense * * *.
7. Lessee[s] [agree] to purchase, at their own expense, liability insurance to protect against the risk of loss, damage to, employees and/or business invitees or
users of said building and structure____
9. (c) Lessees agree that they will abide by all of the laws, ordinances, rules or regulations of any regulatory body of the State of New Mexico or any political subdivision thereof * * *.
22. The Lessee[s] [acknowledge] that they have examined the premises and are accepting said premises in its present condition on an ‘as is’ basis, and [are] not relying on any representations made to the condition of the premises, but [are] relying solely on their own inspection of the premises and any improvements located thereon.
Although lessees agreed to comply with all “laws, ordinances, rules or regulations,” this covenant, by itself, does not constitute an assumption of the duty to comply with orders requiring improvements of a substantial or structural nature. Glenn R. Sewell Sheet Metal, Inc. v. Loverde, 70 Cal.2d 666, 674, 75 Cal.Rptr. 889, 894, 451 P.2d 721, 726 (1969). The trial court, however, relying solely on Sewell, concluded that under these circumstances the “[lessees’] covenant to comply [with the applicable laws] included the obligation to either take the required corrective steps or cease using a portion of the premises.” The trial court reached this conclusion because the lessees had not only covenanted to comply with the applicable laws, but had also accepted the premises “on an ‘as is’ basis” and further had assumed all risk of loss by reason of damage to employees and/or business invitees. The trial court further concluded that the “[lessees] assumed the risk that noncompliance might interfere with the use of the premises or render it less profitable” and that “[a]ny alleged loss of earnings due to closing of the second floor of the premises was not as a result of [lessor’s] actions (or non-action).”
This Court is not bound by the trial court’s conclusions of law. Martinez v. Martinez, 93 N.M. 673, 676, 604 P.2d 366, 369 (1979). We have examined the terms of this lease agreement and, in light of the surrounding circumstances, conclude that lessees did not agree to assume liability for compliance with the improvements ordered by the State Fire Marshal.
We believe that the trial court’s reliance on Sewell was misplaced; that case is distinguishable. In Sewell, the sublessee had examined the premises, knew of their condition and the likelihood that the ordered improvements would be required, and that the sublessors were relieved of all obligations as to repair or maintenance. The California Supreme Court in Sewell held that this total disclaimer of the sublessors could only be given the effect of relieving the landlord of any duty to take substantial curative actions. 70 Cal.2d at 675, 75 Cal. Rptr. at 895, 451 P.2d at 727. By comparison, the lessor in this case was not relieved of the obligation to maintain or repair the premises. In paragraph six, lessor agreed to maintain the roof, plumbing, and exteri- or of the demised premises. These type of repairs or maintenance could be considered of a substantial nature and therefore, unlike in Sewell, it was not within the contemplation of the parties that lessees hold the lessor harmless of all maintenance or repair of a substantial nature.
Also in Sewell when the sublessee accepted the premises on an “as is” basis, he knew that the improvements were essential and would likely be ordered by the public authority. By contrast, here, when lessees accepted the premises “on an ‘as is’ basis,” the Deming Fire Department had inspected the premises and certified occupancy for both floors. No safety code violations were noted. Therefore, when lessees accepted the premises on an “as is” basis, they contemplated that the building was in full compliance with the safety code. Furthermore, acceptance of the premises on an “as is” basis does not necessarily mean that the tenant is required to make changes of a structural or material nature. Kanes v. Koutras, 203 Ga. 570, 47 S.E.2d 558 (1948).
Just as Sewell is distinguishable from the instant case, so are other cases where courts have found a tenant’s intention to make improvements of a substantial nature. Cf. Hollywood Bldg. Corp. v. Greenview Amusement Co., 315 Ill.App. 658, 43 N.E.2d 566 (1940) (lessee agreed to comply with all regulations to the extent of changes “structural or otherwise”); Bubeck v. Farmers’ Loan & Trust Co., 180 App.Div. 542, 167 N.Y.S. 1049 (1917) (tenants bound themselves to comply with orders of public authorities which called for structural changes not specifically exempted from lease agreement).
In Mid-Continent Life Ins. v. Henry’s, Inc., 214 Kan. 350, 351, 520 P.2d 1319, 1320 (1974), the court held that the lessee should not bear the cost of alterations ordered by public authorities when:
(1) the improvements were substantial and structural in nature; (2) the improvements will survive the term of the lease between lessor and lessee and thus will inure to the primary benefit of the lessor; (3) the improvements were not required by or because of any particular use made of the premises by the lessee;
(4) the cost of such improvements were substantial as opposed to nominal; and
(5) the event which necessitated the improvement was unusual, extraordinary and unexpected and not within the contemplation of the parties at the time the lease was executed.
Here the facts fit every criteria listed. First, there is no doubt that a sprinkler system is an alteration of a substantial nature. See Puget Inv. Co. v. Wenck. Second, the lease in this case was for a relatively short period of time — five years — and the improvements if made would have reverted to the lessor. Cf. Gaddis v. Consolidated Freightways, Inc., 239 Or. 553, 398 P.2d 749 (1965) (lessees entered into twenty-year lease, giving them an option to purchase at any time after first ten years). Third, there is no evidence that the sprinkler system was required because of the particular use which lessees made of the premises. The premises had been used as a restaurant/bar for several years and lessees continued to so use the premises. Fourth, the cost of installing the sprinkler system was estimated at about $15,000, a far cry from being nominal. And fifth, the need for the sprinkler system was unexpected, particularly under these circumstances, when the Deming Fire Department had given the premises a “clean bill,” detecting no safety code violations.
The conclusion is inescapable that a lasting, expensive improvement such as a sprinkler system, at a cost of about $15,-000, which could have likely survived the term of the lease and would have inured to the primary benefit of the lessor, and was not necessitated by the particular use of the premises, could not have been within the contemplation of the parties. See SKD Enter., Inc. v. L & M Offset, 65 Misc. 612, 318 N.Y.S.2d 539 (1971).
The next issue presented is whether, under the facts of the instant case, the lessor’s failure to install the sprinkler system amounted to a constructive eviction. Constructive eviction occurs when through the landlord’s actions the tenant has been substantially deprived of the beneficial enjoyment of the premises. Scott v. Prazma, 555 P.2d 571, 579 (Wyo.1976). The record shows that lessees were denied the use of the second floor because the State Fire Marshal had demanded that a sprinkler system be installed. As discussed above, the installation of the system was the legal obligation of the lessor, and not the lessees. Because lessor refused to comply with the order, lessees were deprived of their right to possess and enjoy the use of the second floor of the building. Lessor’s actions constituted constructive eviction. See id.
Lessees contend that because of lessor’s breach of the covenant of quiet enjoyment that the payment of the rental should have been suspended in total, citing Goldberg v. Cosmopolitan Nat’l Bank, 33 Ill.App.2d 83, 178 N.E.2d 647 (1961) and Scott v. Prazma. These cases are distinguishable. In Scott, the court found a constructive eviction of the entire premises. Because the lessee had surrendered possession of the entire premises, the lease was treated as terminated, suspending lessee’s obligation to pay any portion of the rent. In Goldberg, the lessee was evicted from a portion of the premises, continued to remain in possession of the remainder, and the court held that the entire rent was suspended. The Goldberg court, however, relied on cases where the evictions were actual, not constructive. An actual eviction by the landlord, even though it is partial, “suspends the entire rent because the landlord is not permitted to apportion his wrong.” Fifth Ave. Bldg. Co. v. Kernochan, 221 N.Y. 370, 373, 117 N.E. 579, 580 (1917).
Under constructive eviction cases, however, the tenant must abandon the premises in order to sustain his claim of eviction. El Paso Natural Gas Co. v. Kysar Ins. Agency, 98 N.M. 86, 645 P.2d 442 (1982). Here, lessees were compelled to vacate the second floor because of lessor’s failure to install the sprinkler system. They continued, nevertheless, to use the first floor of the premises until they were ordered to vacate and surrender the property to the lessor. Because lessees were not deprived of the beneficial use of the first floor of the premises, there was no constructive eviction regarding this portion of the premises. Thus, lessees had an obligation to continue paying a fair rental value for use of the first floor. They cannot recover damages for breach of covenant of quiet enjoyment regarding this portion of the building. Id. at 88, 645 P.2d at 444.
We hold, therefore, that lessor’s failure to install the sprinkler system in accordance with the safety code amounted to a partial constructive eviction, greatly diminishing the value of the premises in comparison to the consideration for rent. Thus, under these circumstances, it is equitable that the rent owed to the lessor be offset by the extent of the diminished facilities. See Majen Realty Corp. v. Glotzer, 61 N.Y.S.2d 195 (1946).
Lessees also filed a counterclaim alleging damages sustained from lessor’s interference of the covenant of quiet enjoyment. Lessees claim damages for remodeling and alterations, depreciated value of fixtures and equipment, and lost income. The general rule is that “[wjhere the wrongful eviction of a tenant results in the breaking up of his business conducted by him upon the premises, he may recover the damages thereby sustained, including lost profits, provided those damages can be ascertained with a reasonable degree of certainty.” Polk v. Armstrong, 91 Nev. 557, 562, 540 P.2d 96, 99 (1975) (citations omitted).
The judgment is therefore reversed. The case is remanded to the trial court to determine the rent owed to the lessor for the diminished facilities. The lessees’ counterclaim is also reinstated for the court to determine on the present record whether lessees’ alleged damages were contemplated by the parties and can be ascertained with a reasonable degree of certainty. Judgment shall be entered accordingly.
IT IS SO ORDERED.
STOWERS and WALTERS, JJ., concur.
. Even though the lease agreement has an option to renew for an additional five years and an option to purchase, under these circumstances we do not find these contract clauses significant. The clauses as written in the lease agreement do not bind the lessor to extend the contract for an additional five years or to sell the property. Both options are within the discretion of the lessor. The option to purchase, although titled as such, is in fact a right of first purchase, giving the lessees the right to purchase when and if the lessor decided to sell the property. Thus, for lessees to make extensive, long-lasting improvements that could likely revert to the lessor would be inequitable. Moreover, any costs for these improvements could be carried over in the purchase price at the time of sale or negotiated into the new rental term for an additional five year lease. See 1 A.J. Casner, American Law on Property § 3.80, at 353-55 (1952). | [
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OPINION
MINZNER, Judge.
Plaintiffs George Herman Downs, Steven Michael Downs, and Edward Downs (the Downs) appeal a judgment awarding defendant Richard Garay, Jr. (Garay) $100 in compensatory damages and $1,000 in punitive damages on a counterclaim for assault and battery. The trial court also awarded Herman Downs $155 compensatory damages against Garay for injuries arising out of another related incident, and the court enjoined all parties from harassing, bothering, molesting, or abusing one another; these rulings are not appealed. We affirm.
The Downs and Garay, who lives with his parents and his younger sister, are next-door neighbors. On May 11, 1985, Mrs. Downs told Garay’s sister to remove horse manure that the Garay’s horse had left on the Downs’ property. Garay then went to the Downs’ property to confront them about the matter. Garay and Herman Downs argued, and a fight ensued involving Garay and the Downs. One of the sons went into the house and brought out handcuffs. Garay was handcuffed and thrown to the ground. There is conflicting testimony about who struck the first blow and whether Garay was kicked after he was down on the ground. Herman Downs testified that in handcuffing and subduing Ga-ray he was making a citizen’s arrest for battery.
Plaintiffs filed suit against defendant Richard Garay, Jr. and other members of his family, seeking injunctive relief. The Garays asked for injunctive relief and also counterclaimed for damages. After another incident on January 5, 1986 involving Garay, Herman Downs, and his wife, the Downs amended their complaint to request damages for Herman Downs arising out of both incidents.
On appeal, the Downs argue that substantial evidence does not support the court’s finding as to the first incident that they are liable to Garay for assault and battery. They also contend that there is evidence to support a finding that Garay is liable for assault and battery for his actions at that time. They further contend that the trial court erred in awarding punitive damages against them and not awarding punitive damages against Garay for the later incident.
We affirm the trial court. We discuss: (1) whether substantial evidence supports the finding of liability against the Downs for assault and battery; (2) Herman Downs’ alleged citizen’s arrest; and (3) punitive damages.
SUBSTANTIAL EVIDENCE.
On appeal, the Downs are asking this court to reweigh the evidence, judge the credibility of the witnesses, and substitute our judgment for that of the trial court. This we cannot do.
In deciding whether a finding of the trial court is supported by substantial evidence, this court must view the evidence in the light most favorable to support the finding, and we do not consider any evidence unfavorable to the finding. Trujillo v. Romero, 82 N.M. 301, 481 P.2d 89 (1971). The reviewing court may not reweigh the evidence or substitute its judgment for that of the trier of fact. Sanchez v. Homestake Mining Co., 102 N.M. 473, 697 P.2d 156 (Ct.App.1985). The duty to weigh the credibility of witnesses and to resolve conflicts in the evidence rests within the province of the trial court, and not with the appellate court. Dibble v. Garcia, 98 N.M. 21, 644 P.2d 535 (Ct.App.1982). Findings supported by contradictory testimony are upheld on appeal as supported by substantial evidence. Brannock v. Brannock, 104 N.M. 416, 722 P.2d 667 (Ct.App.1985).
Downs has challenged nine of the sixteen findings of the trial court and four of the trial court’s eight conclusions of law. The findings that Garay shook his finger at Herman Downs, and he pushed it away; that Herman told his sons to go get his pistol, handcuffs, and blackjack; that he sat on Garay once he was down and forced his face into the ground; that Garay sustained contusions and abrasions; and that Herman Downs was displaying a Deputy United States Marshall’s badge are all supported by the testimony of witnesses or the inferences that may be drawn from their testimony. The Downs point to other evidence that would support different findings and a different result. However, the test to be applied on appeal is whether or not there is substantial evidence to support the trial court’s findings, not whether there is evidence to support an alternative result. Abbinett v. Fox, 103 N.M. 80, 703 P.2d 177 (Ct.App.1985).
Other challenged findings are not necessary to support the trial court’s judgment. For example, the court found that the two families had been arguing for some time about matters involving dogs and horses, that when Garay’s sister obtained a rifle, she did so because she believed her brother was in danger, and that Herman Downs has been employed in law enforcement for twenty-five years rather than sixteen years. None of these findings is essential to a conclusion that the Downs were liable for assault and battery. Even if these findings were not supported by evidence, erroneous findings of fact not necessary to support the judgment of the court are not grounds for reversal. Specter v. Specter, 85 N.M. 112, 509 P.2d 879 (1973).
We hold that the findings of the trial court are either supported by substantial evidence or are unnecessary to the court’s judgment. Therefore, we will not reverse on appeal.
CITIZEN’S ARREST.
Herman Downs testified that he placed Garay under citizen’s arrest for battery and later turned him over to a sheriff’s officer. At trial, Downs’ attorney argued that in New Mexico a citizen may arrest for a misdemeanor, but he did not give any authority for his argument. The Downs have challenged the court’s conclusion that a private citizen may not make a warrantless arrest for a petty misdemean- or. It is undisputed that battery is a petty misdemeanor. See NMSA 1978, § 30-3-4 (Repl.Pamp.1984).
At trial, the Downs argued that the citizen’s arrest was relevant because they contended Herman Downs had used reasonable force to defend himself. Self-defense is again argued in Downs’ reply brief.
However, in his brief-in-chief, Downs argues that a citizen’s arrest was proper because at common law a citizen was entitled to arrest a person who committed a breach of the peace in his presence, and Garay’s actions amounted to a breach of the peace. He argues that this rule applies in New Mexico because there is no statute covering the situation and the common law controls. See NMSA 1978, § 38-1-3. On appeal, the Downs claim the trial court erred in awarding Garay compensatory damages because Herman Downs was properly making a citizen’s arrest.
We note that Downs is correct that at common law a private person could arrest for a breach of the peace committed in his presence, as well as for a felony. See Restatement (Second) of Torts § 119 (1965). Thus, at common law, a person who had made such an arrest could assert a privilege if later sued for damages; he or she had a defense to such torts as assault, battery, and false imprisonment. See Commonwealth v. Corley, 507 Pa. 540, 491 A.2d 829 (1985). However, we do not believe the concept aids the Downs for two reasons.
First, a ruling on the validity of a citizen’s arrest for a breach of the peace as a privilege precluding liability for assault and battery was not properly invoked in the trial court, and thus the issue is not preserved for appeal. See SCRA 1986, 12-216. The pleadings raise no affirmative defenses to assault and battery. The only argument made in the trial court was that the alleged citizen’s arrest showed the force used was reasonable for self-defense, and the proposed findings and conclusions do not include breach of the peace or privilege, but rather reflect a claim of self-defense. Thus, we conclude that the Downs did not raise before the trial court a claim of privilege based on citizen’s arrest for breach of the peace.
Even if the issue had been preserved, the record does not support the appellate claim. The Downs have not demonstrated a factual predicate for their legal argument. The common law privilege extends only to arrests for felonies or breach of the peace. Palmer v. Maine Cent. R.R., 92 Me. 399, 42 A. 800 (1899). The privilege was recognized at common law in order to facilitate the prompt suppression of a certain kind of offense. See Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Restatement (Second) of Torts § 116, comment a (1965). We have found no authority for extending the privilege to permit an arrest for misdemeanors other than breach of the peace or shoplifting. See generally Gortarez v. Smitty’s Super Valu, Inc., 140 Ariz. 97, 680 P.2d 807 (1984) (where the Arizona Supreme Court describes a developing common law shopkeeper’s privilege); see also Restatement (Second) of Torts § 120(A) (1965). In New Mexico, as in Arizona, however, the legislature has recognized a limited privilege with respect to shoplifting. See NMSA 1978, § 30-16-23 (Repl.Pamp.1984); Gortarez v. Smitty’s Super Valu, Inc.
Herman Downs testified that he arrested Garay for battery, not breach of the peace. The record does not reflect whether he told Garay he was under arrest, or with what offense he was being charged. However, even if Herman Downs told Garay he was under arrest for battery, this would not have informed Garay of the privilege now asserted. See W.P. Keeton, Prosser and Keeton on the Law of Torts § 26 (5th ed. 1984) (the person arrested must be informed of the charges against him, and an arrest made upon an improper ground cannot later be justified because there was a proper ground available); Restatement (Second) of Torts § 128 (1965). See also Territory of New Mexico v. McGinnis, 10 N.M. 269, 61 P. 208 (1900); overruled on other grounds, State v. Deltenre, 77 N.M. 497, 424 P.2d 782 (1966), cert. denied, 386 U.S. 976, 87 S.Ct. 1171, 18 L.Ed.2d 136 (1967).
In addition, the privilege of citizen’s arrest, as well as self-defense, is limited to the use of reasonable force. See Keeton, supra, §§ 19 and 26; Restatement (Second) of Torts §§ 63 and 132 (1965). The trial court found that the acts of the Downs “in hitting, striking, and kicking Richard Garay, Jr. while he was handcuffed and on the ground were done willfully and maliciously.” This finding supports a conclusion that the force used was unreasonable. The appellate claim is inconsistent with such a conclusion.
For these reasons, we hold that the trial court’s conclusion was not in error. Even assuming New Mexico recognizes a citizen’s arrest for breach of the peace, the Downs did not establish their right to rely on the privilege or defense. Thus, the trial court did not err in awarding Garay damages for assault and battery.
PUNITIVE DAMAGES.
Downs argues that the award of punitive damages is not supported by substantial evidence. However, the standard of review for an award of punitive damages is whether the trial court abused its discretion. See Galindo v. Western States Collection Co., 82 N.M. 149, 477 P.2d 325 (Ct.App.1970). The amount of punitive damages is left to the discretion of the trier of fact, based on the circumstances of each case, but should not be so unrelated to the injury and actual damages proven as to plainly manifest passion and prejudice rather than reason and justice. Robison v. Campbell, 101 N.M. 393, 683 P.2d 510 (Ct.App.1984). An appellate court should disturb a determination of punitive damages only in extreme cases. See Montoya v. Moore, 77 N.M. 326, 422 P.2d 363 (1967).
Punitive damages may be assessed to punish and as a deterrent and warning to others. Gonzales v. Sansoy, 103 N.M. 127, 703 P.2d 904 (Ct.App.1984). Recovery of punitive damages is permissible if there is a finding that the wrongdoer’s conduct was willful, wanton, malicious, reckless, oppressive, grossly negligent, or fraudulent and in bad faith. Id. Any one of the reasons for assessing punitive damages is sufficient to sustain an award. Id. Here, the trial court found the Downs’ actions in restraining Garay were willful, deliberate, and malicious. The record contains sufficient evidence to support the finding. The Downs admit on appeal that they overreacted.
Punitive damages are awarded when compensatory damages seem inadequate to satisfy the wrong committed. Montoya v. Moore. Garay’s compensatory damages were $100, or $33.33 against each plaintiff. The trial court was entitled to determine that this amount was inadequate to compensate Garay, as well as to deter the Downs.
Downs also argues that the punitive damages of $1,000 are excessive. However, the trial court made it clear that it was assessing the damages against all three plaintiffs. The purpose of punitive damages is to punish and deter, Gonzales v. Sansoy. In view of those objectives and the facts herein, we find no error in the amount of the award of punitive damages.
Downs cites Montoya v. Moore and Galindo v. Western States Collection Co. as authority for his argument that $1,000 is excessive for punitive damages where compensatory damages were $100. These cases may be distinguished. In Montoya v. Moore, compensatory damages were $9,675 and punitive damages were $50,000. The supreme court held that $50,000 was excessive because there was no evidence of malice, violence, or criminal conduct on the part of the one to be punished, but that $20,000 was appropriate. In Galindo v. Western States Collection Co., this court held that $5,000 in punitive damages was excessive where there were no aggravating circumstances and compensatory damages were $525.52, and that the punitive damages should be reduced to $2,500. The supreme court has held that a set ratio between the two types of damages is not a proper test. Faubion v. Tucker, 58 N.M. 303, 270 P.2d 713 (1954).
An award of $333 against each of the Downs does not manifest passion and prejudice. We hold that it is not excessive in view of the trial court’s findings and the presence of substantial evidence to support those findings.
Finally, the Downs cite Gonzales v. Sansoy in urging this court to compare the actions of the parties on May 11, 1985 and January 5, 1986 when considering punitive damages. Gonzales v. Sansoy was a medical malpractice case where the theory of comparative negligence was applicable. The Downs are asking us to apply this theory to intentional torts committed on totally different occasions. We find no authority for extending comparative negligence to this situation, and we decline to do so.
CONCLUSION.
The judgment of the trial court is affirmed. No costs are awarded on appeal.
IT IS SO ORDERED.
DONNELLY, C.J., and BIVINS, J., concur. | [
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OPINION
PICKARD, J.
{1} Defendant Scott Wallin (Wallin) is a franchisee of the foreign corporation Pillar To Post, Inc. (Pillar To Post), a home inspection business. Wallin has named his New Mexico franchise (Franchise) “Pillar To Post.” Plaintiff learned about Pillar To Post, Wallin, and Franchise through the Pillar To Post internet website and an advertisement in the Albuquerque phone book. Plaintiff contracted with Wallin to inspect a house that Plaintiff planned to purchase in Tijeras, New Mexico.
{2} Plaintiff purchased the property, but a few months later she discovered that the pipes in the radiant floor heating system were made from an allegedly defective material known as polybutylene. The inspection had not revealed the existence of these pipes, although Plaintiff claims that she specifically inquired about them.
{3} Plaintiff filed suit against Wallin, Franchise, and Pillar To Post, alleging negligence, negligent misrepresentation, fraud, prima facie tort, unfair trade practices, breach of contract, and emotional distress. The district court granted Pillar To Post’s motion to dismiss for lack of personal jurisdiction.
{4} Plaintiff appeals, alleging that Pillar To Post had the requisite minimum contacts with New Mexico through its relationship with Wallin and Franchise to support personal jurisdiction. We hold that the franchise relationship in this case does not establish the basis for personal jurisdiction.
{5} Plaintiff also asserts that Pillar To Post had minimum contacts with New Mexico through its internet website. In a matter of first impression, we hold that when a website is essentially passive, that website does not support personal jurisdiction over a foreign entity such as Pillar To Post. Accordingly, we affirm.
FACTS AND PROCEEDINGS
{6} Plaintiff was living in California when she decided to purchase a house in New Mexico. In order to find a home inspector for the house that she desired, she searched the internet through a commercial internet search engine. There she found the website for Pillar To Post, the home inspection service. Plaintiff used a feature on the Pillar To Post website labeled “Locate an inspector,” which asks the user to enter the name of a city and then redirects the user to the nearest local franchise. Plaintiff was redirected to the website for Scott Wallin, owner of Franchise, which is located in Moriarty, New Mexico.
{7} After some consideration, Plaintiff decided to contract with Wallin and Franchise to inspect the home she wished to purchase. Still in California, Plaintiff contacted Wallin by telephone and explained her needs, and they agreed upon a time and place to meet in Tijeras for the inspection. Wallin completed the inspection and produced a report detailing the condition of the house. Plaintiff paid for the inspection by a check made out to “Pillar To Post.” Plaintiff also appears to have received a “Visual Inspection Agreement” signed by Wallin, outlining the terms of them contract, although the agreement does not include Plaintiffs signature.
{8} About five months after the inspection, Plaintiff had purchased the home and called a plumber to repair the hot water heater. At that time, Plaintiff discovered that the pipes in the radiant heating system were made from a material called polybutylene, which Plaintiff claims is “notoriously defective.” She filed suit against “Scott Wallin and Pillar To Post, a Division of Pillar To Post, Inc.” Her claim stated that Wallin “knew, or should have known, that the polybutylene pipes installed in the subject property were defective and unreasonably dangerous” and that Wallin and Pillar To Post “negligently and/or fraudulently concealed the existence” of the defective pipes. She also alleged that Wallin and Pillar To Post “had reason to know” that Plaintiff would rely on the inspection in making a decision to purchase the home, the value of which Plaintiff alleged is substantially and adversely affected.
{9} Pillar To Post moved to dismiss for lack of personal jurisdiction. The motion asserted that Pillar To Post was not subject to New Mexico’s long arm statute, NMSA 1978, § 38-1-16 (1971), because the complaint failed to allege sufficient facts to establish that Pillar To Post had minimum contacts with New Mexico. Plaintiff responded by arguing that the Pillar To Post internet website and the franchise relationship between Pillar To Post and Wallin were adequate to sustain personal jurisdiction. Plaintiff attached materials that included her own affidavit, a print-out of a website entitled “Pillar To Post in your area” that featured Wallin and Franchise, and the check from Plaintiff to “Pillar To Post” which had been endorsed “Pillar To Post[,] Scott Wallin[,] For Deposit Only.”
{10} The district court held a brief hearing where counsel presented their arguments, and it granted the motion to dismiss without issuing findings of fact or conclusions of law. Plaintiff filed a motion for reconsideration, which attached a home buyer’s warranty Plaintiff bought from Home Buyers Resale Warranty Corp. The warranty agreement listed Scott Wallin as broker and identified him as an agent for “Pillar To Post.” The motion for reconsideration was denied, and Plaintiff appealed.
DISCUSSION
{11} The sole issue before us on appeal is whether the district court correctly determined that it lacked personal jurisdiction over Pillar To Post. The determination of whether the district court has personal jurisdiction is a question of law that we review de novo. Harrell v. Hayes, 1998-NMCA-122, ¶ 11, 125 N.M. 814, 965 P.2d 933. Because the district court based its ruling on the parties’ pleadings and affidavits, our standard of review largely mirrors the standard governing appeals from the award or denial of summary judgment. Id. We construe the pleadings and affidavits in the light most favorable to the complainant, and the complainant need only make a prima facie showing that personal jurisdiction exists. Cronin v. Sierra Med. Ctr., 2000-NMCA-082, ¶ 10, 129 N.M. 521, 10 P.3d 845.
{12} Pillar To Post is a foreign corporation, incorporated in the state of Delaware. In order for the district court to have personal jurisdiction over Defendant Pillar To Post, the conduct of which Plaintiff complains must meet a three-part test:
(1) Defendant}] must have done at least one of the acts enumerated in our long-arm statute, (2) Plaintiff[’s] causes of action must have arisen from the act or acts, and (3) Defendant! ] must have had minimum contacts with New Mexico sufficient to satisfy constitutional due process.
Id. ¶ 11.
{13} In order to meet the first part of the test, a plaintiff must show that a defendant did an act included in the long-arm statute, Section 38-1-16, which reads in pertinent part:
A. Any person, whether or not a citizen or resident of this state, who in person or through an agent does any of the acts enumerated in this subsection thereby submits himself or his personal representative to the jurisdiction of the courts of this state as to any cause of action arising from:
(1) the transaction of any business within this state;
(3) the commission of a tortious act within this state[.]
Plaintiff alleges that Pillar To Post’s relationship with Wallin and Franchise, as well as the Pillar To Post website, enables Plaintiff to meet this test. We address each of these grounds for jurisdiction in turn.
1. The franchisor/franchisee relationship between Pillar To Post and Wallin is not sufficient to subject Pillar To Post to personal jurisdiction.
{14} Plaintiff alleges that various aspects of the relationship between Pillar To Post as a franchisor and Wallin as a franchisee constitute the “transaction of business” for long-arm statute purposes. “Transaction of any business” in this context is defined as “doing a series of similar acts for the purpose of thereby realizing pecuniary benefit, or otherwise accomplishing an object, or doing a single act for such purpose with the intention of thereby initiating a series of such acts.” Tercero v. Roman Catholic Diocese, 2002-NMSC-018, ¶ 10, 132 N.M. 312, 48 P.3d 50 (internal quotation marks and citation omitted). Our case law establishes that “the analysis of whether the [defendant],transacted business ... within New Mexico merges with the inquiry regarding whether such activities constitute minimum contacts sufficient to satisfy due process concerns.” Id. ¶8. Due process concerns dictate that in order for a non-resident to be subjected to the personal jurisdiction of a state court, the non-resident must have “certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Wash., 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (internal quotations marks and citations omitted). “[I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958).
{15} In our case of Campos Enterprises, Inc. v. Edwin K. Williams and Co., 1998-NMCA-131, 125 N.M. 691, 964 P.2d 855, we discussed the issue of whether a franchisor/franchisee relationship gave rise to personal jurisdiction over the foreign franchisor. As in the present case, the plaintiffs in Campos Enterprises, Inc. hired a franchise, Tax and Business Service, to complete a service for them, namely, tax preparation. Id. ¶ 2. Also as in the present case, the Campos Enterprises, Inc. plaintiffs sued the franchisor, Edwin K. Williams and Co., for a variety of claims related to errors in the performance of that service. See id. ¶ 9.
{16} In Campos Enterprises, Inc., we explained that while “entering into a franchise agreement with a New Mexico resident requiring payment of royalties outside the state may be the ‘transaction of any business’ contemplated by the long-arm statute, that fact alone is insufficient to establish personal jurisdiction.” Id. ¶ 8. In keeping with the due process requirements discussed above, we also require plaintiffs “to connect their causes of action to [an] activity of [the defendant in New Mexico,” id. ¶ 12, through “additional indicia of contacts within the state ... sufficient to support jurisdiction.” Id. ¶ 15. In Campos Enterprises, Inc., we held that the plaintiffs’ failure to connect the franchisor with the allegedly improper tax preparation activities of the franchise was fatal to their arguments in favor of personal jurisdiction. Id. ¶ 12.
{17} In the present ease, Plaintiff alleges that Pillar To Post transacted business in New Mexico by requiring payment of fees from Wallin and by charging sign-up fees for which Pillar To Post agrees to advertise for Wallin. However, because the record contains no evidence of the franchise agreement between Pillar To Post and Wallin, we do not consider any matters that may or may not have been covered in that agreement. See State ex rel. Educ. Assessments Sys., Inc. v. Coop. Educ. Servs, of N.M., Inc., 110 N.M. 331, 332, 795 P.2d 1023, 1024 (Ct.App.1990) (holding that it is appellate counsel’s duty to present a record adequate for review of an issue).
{18} Plaintiff also contends that a listing in the Albuquerque telephone book, the fact that Plaintiff made out her check to “Pillar To Post,” and the fact that the warranty listed Scott Wallin as agent for “Pillar To Post” indicates that Pillar To Post transacted business and received pecuniary gain in New Mexico. However, Pillar To Post has presented the unrebutted assertion that the check, the advertisement, and the warranty refer to Franchise, which also has the name “Pillar To Post.” This is supported by the endorsement on the check, which indicates that it was received by “Pillar To Post Scott Wallin,” and the local number in the telephone book listing. Thus, neither the advertisement nor the cheek indicate that Pillar To Post transacted business in New Mexico. Similarly, there is no indication that Pillar To Post had any connection to the warranty.
{19} We also disagree with Plaintiffs characterization of Wallin as an agent of Pillar To Post. As we explained in Campos Enterprises, Inc., “[t]he existence of a franchisor-franchisee relationship alone is insufficient to create a principal-agent relationship.” 1998-NMCA-131, ¶ 18. In addition to the lack of evidence supporting an agency relationship, the Visual Inspection Agreement that Plaintiff attached to her complaint supports the notion that Wallin transacted all business on behalf of Franchise, not Pillar To Post. The agreement includes a provision that it is “by and between the above named Client and the undersigned, an independently owned and operated Franchisee of Pillar To Post, Inc.” The bottom of the agreement indicates that each office is independently owned and operated, and the agreement is signed by Wallin as “FRANCHISEE: Pillar To Post® Professional Home Inspection.” These factors indicate that Wallin performed the inspection independently and not as an agent of Pillar To Post.
{20} Furthermore, we also reject Plaintiffs contention that Pillar To Post transacted business in New Mexico when it trained Wallin. Again, the record does not show any evidence of training or where training might have occurred, except for the statement on the Pillar To Post website stating that generally their inspectors “are highly trained by our own professional staff’ and the title of “Pillar To Post® Inspector” among Wallin’s credentials. In the absence of evidence indicating an ongoing training and supervision relationship between Wallin and Pillar To Post, we see no basis for finding that Pillar To Post transacted business or had minimum contacts in New Mexico in this respect.
{21} To the extent that Plaintiff argues that Pillar To Post committed a tortious action for purposes of the long-arm statute, Section 38-l-16(A)(3), we disagree. “[U]nless a plaintiff can factually demonstrate a relationship between a franchisor and a franchise that connects the franchisor to the tortious act, whether that fact be an agency or otherwise, the statute is not satisfied.” Campos Enters., Inc., 1998-NMCA-131, ¶ 16. As stated above, we have already rejected Plaintiffs agency theory. The allegedly negligent or fraudulent acts upon which Plaintiff bases her tort claims are Wallin’s inspection and his replies to her specific questions about the pipes. Neither of these events involve actions on the part of Pillar To Post.
{22} In short, Plaintiff has presented only a bare franchisor/franchisee relationship without any additional indicia of business transactions in the state. There is no evidence of any connection between Pillar To Post and Wallin’s inspection of Plaintiffs home that would give rise to a finding that Pillar To Post had minimum in-state contacts. Accordingly, we find that the franchise relationship provides no basis for personal jurisdiction.
2. The Pillar To Post internet website did not provide sufficient minimum contacts to establish personal jurisdiction.
{23} Next, Plaintiff contends that the existence of the Pillar To Post internet website and its feature permitting users to locate a local Pillar To Post franchise constitute the transaction of business in New Mexico and the adequate minimum contacts to support personal jurisdiction. The question of whether a foreign corporation’s website can support a finding of personal jurisdiction in New Mexico is one of first impression.
{24} Because this is our first case dealing with the internet in a jurisdictional context, some brief background information is appropriate. The internet is “an international network of interconnected computers” that allows users to access a massive amount of information by connecting to a host computer. Reno v. ACLU, 521 U.S. 844, 849-50, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997). A “website” consists of any number of web pages with a unique “address” that allows users to locate it. Id. at 852, 117 S.Ct. 2329. Access to a website is generally available to all internet users, and users can find websites through a variety of commercial search engines or by directly entering the site’s address into their internet browser application. Id. The United States Supreme Court has characterized the internet as “a vast platform from which to address and hear from a worldwide audience of millions of readers, viewers, researchers, and buyers.” Id. at 853, 117 S.Ct. 2329.
{25} Over the past ten years, courts nationwide have struggled to find an appropriate approach to determining what websites subject the operator to the jurisdiction of a foreign state where the site was viewed or used. See generally Michael J. Dunne & Anna L. Musacchio, Jurisdiction Over the Internet, 54 Bus. Law. 385 (1998). Two major approaches have emerged: an expansive view of personal jurisdiction exemplified by the case Inset Systems, Inc. v. Instruction Set, Inc., 937 F.Supp. 161 (D.Conn.1996) (mem.), and a sliding scale approach first articulated in Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (W.D.Pa.1997). Even more modern authorities, however, indicate that the issue is considerably more complex. See generally Hy Cite Corp. v. Badbusinessbureau.com, L.L.C., 297 F.Supp.2d 1154 (W.D.Wis.2004); Michael A. Geist, Is There a There There? Toward Greater Certainty for Internet Jurisdiction 16 Berkeley Tech. L.J. 1345 (2001). All of the foregoing approaches operate with the backdrop of due process concerns detailed in the prior section.
{26} In the case of Inset Systems, Inc., 937 F.Supp. at 162-63, the Connecticut corporation Inset Systems owned the trademark “INSET.” Inset Systems filed a suit alleging trademark infringement against the Massachusetts corporation Instruction Set, Inc., when it discovered that Instruction Set, Inc. had purchased the website address “http://www.inset.com.” Id. The federal court applied Connecticut’s long-arm statute and held that Instruction Set, Inc. “purposefully availed itself of the privilege of doing business within Connecticut.” Id. at 165. This holding was based on the notion that the http://www.inset.com website was analogous to a print, television, or radio advertisement, made more powerful because it is continuously accessible. Id. at 164-65. Without evidence of the number of Connecticut internet users who had accessed the site, the court assumed that thousands of Connecticut users could access the site, and it found that personal jurisdiction over the Massachusetts corporation was proper. See id. Many courts have relied on Inset Systems, Inc. and have adopted a similarly broad approach, although their facts might have satisfied a narrower test. See, e.g., Maritz. Inc. v. Cybergold, Inc., 947 F.Supp. 1328, 1332-34 (E.D.Mo.1996) (mem. & order) (holding that Missouri jurisdiction was proper in a trademark action against operators of a website in which users signed up for electronic mailboxes where they would receive targeted advertisements); TELCO Communications v. An Apple A Day, 977 F.Supp. 404, 405-07 (E.D.Va.1997) (mem.) (holding that Virginia jurisdiction was proper in a defamation action against operators of a website that featured negative press releases about the plaintiff); State ex rel. Humphrey v. Granite Gate Resorts, Inc., 568 N.W.2d 715, 720-21 (Minn.Ct.App.1997) (holding that Minnesota jurisdiction was proper in a consumer fraud action against operators of a website that claimed to offer legal sports gambling), aff'd, 576 N.W.2d 747 (Minn.1998).
{27} The Zippo Manufacturing Co. case takes a different analytic approach. In that case, the Zippo Manufacturing Company sued a website with the address “http://www.zippo.com” for various causes of action related to trademark infringement. 952 F.Supp. at 1121. The court began with the proposition that “the likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet.” Id. at 1124. From there it posited a “sliding scale” that places websites on a continuum from the active solicitation and doing of business to the passive conveyance of information. Id. On an active website, users may “enter[ ] into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files.” Id. On a passive website, information is merely made available for those who are interested. Id. Between these two ends of the spectrum lie websites where “a user can exchange information with the host computer ... [and] the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site.” Id. Many jurisdictions have adopted the Zippo Manufacturing Co. approach or one similar. See, e.g., Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 419 (9th Cir.1997) (holding that California jurisdiction was improper in a trademark action against operators of a website that advertised construction services); Conseco, Inc. v. Hickerson, 698 N.E.2d 816, 820 (Ind.Ct.App.1998) (holding that Indiana jurisdiction was improper in a trademark action against the operator of a website that shared information about the plaintiff corporation).
{28} In determining which approach is better for New Mexico, at least in a ease like this one, alleging specific jurisdiction, we look to our existing personal jurisdiction case law. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473 n. 15, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (contrasting “specific” jurisdiction, where the suit arises out of a defendant’s contacts with the forum, with “general” jurisdiction, where the suit does not so arise); Lakin v. Prudential Secs. Inc., 348 F.3d 704, 710 (8th Cir.2003) (limiting its use of the Zippo Manufacturing Co. test to specific jurisdiction). We have held that a business that “intentionally initiated commercial activities in New Mexico for the purpose of realizing pecuniary gain” subjects itself to personal jurisdiction. Cronin, 2000-NMCA-082, ¶ 22. However, we have also recognized that “[i]t is [a] defendant’s activities which must provide the basis for personal jurisdiction, not the acts of other defendants or third parties.” Visarraga v. Gates Rubber Co., 104 N.M. 143, 147, 717 P.2d 596, 600 (Ct.App. 1986). We have also expressed approval for a framework that evaluates who initiated the transaction that forms the basis for jurisdiction, where the transaction was entered into, and where the performance was to take place. CABA Ltd. Liab. Co. v. Mustang Software, Inc., 1999-NMCA-089, ¶ 12, 127 N.M. 556, 984 P.2d 803.
{29} These precedents suggest that the more restrictive approach of the Zippo Manufacturing Co. case is better suited to New Mexico, at least where certain specific torts, such as defamation, are not involved. See Calder v. Jones, 465 U.S. 783, 787, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984) (explaining that defamation’s effects are often directed toward a specific place); see also Hy Cite Corp., 297 F.Supp.2d at 1159-60 (criticizing using the Zippo Manufacturing Co. test as an all-encompassing framework, although acknowledging its usefulness as a factor in individual cases). The sliding scale analysis emphasizes the degree to which the website operator intentionally initiates the contacts. By ensuring that the website operator intended the site to facilitate interactive business-like exchanges with users, the Zippo Manufacturing Co. approach minimizes the possibilities that the actions of third parties will subject the operator to personal jurisdiction. Examining the level of interactivity of a website also inherently involves the three-part analysis articulated in CABA Limited Liability Co., 1999-NMCA-089, ¶ 12. Measured by this test, the Pillar To Post website is not sufficient to confer jurisdiction. See Jason H. Eaton, Annotation, Effect of Use, or Alleged Use, of Internet on Personal Jurisdiction in, or Venue of, Federal Court Case, 155 A.L.R. Fed 535, § 4[b] (1999) (listing the many cases that do not find personal jurisdiction where informational websites are involved); see generally Richard E. Kaye, Annotation, Internet Web Site Activities of Nonresident Person or Corporation as Conferring Personal Jurisdiction Under Long-Arm Statutes and Due Process Clause, 81 A.L.R.5th 41 (2000).
{30} The Pillar To Post website appears to be primarily passive. We note at the outset that the only evidence in the record pertaining to the Pillar To Post website is a two-page printout of the page containing information on Wallin and Plaintiffs affidavit detailing her experience with the website. However, taking Plaintiffs allegations as true, the website merely provided information about the nearest franchise. The only interactive feature of the website that Plaintiff described was the “Locate an inspector” feature, which requested minimal information and provided little more than additional advertising information, i.e., contact information and background information on Wallin.
{31} Furthermore, Plaintiff initiated the website transaction from California by using a commercial search engine, and the transaction was complete when she received Wallin’s information while still in California. All subsequent transactions, including the telephone calls, meeting, agreement, and inspection, occurred between Plaintiff and Wallin, either between California and New Mexico or in New Mexico. None of these subsequent transactions involved the website, except that the initial call used the contact information that the website provided. No further evidence of New Mexico involvement was presented.
{32} Finally, there is no indication that Pillar To Post benefitted monetarily because of Plaintiffs visit to the Pillar To Post website. Plaintiffs unsupported assertion that Wallin paid Pillar To Post in order to advertise on the website indicates, to the contrary, that Pillar To Post had already received its benefit from the website by contracting with its franchisees. Based on the record before us, the only monetary benefit from Plaintiffs use of the website went to Wallin, who received a return on his investment in that advertisement.
{33} To summarize, in order to determine personal jurisdiction based on a website, we adopt an approach that, at a minimum, requires a degree of interactivity on the site. A passive website, which merely provides information and offers no opportunity for interaction, will ordinarily not be enough to support personal jurisdiction, although we can contemplate defamation, libel, or trademark actions in which even a passive website may meet the minimum contacts threshold. In all cases, it is critical to remember that the issue of whether a particular defendant is subject to our long-arm statute must be decided on a case-by-case basis. Winward v. Holly Creek Mills, Inc., 83 N.M. 469, 471, 493 P.2d 954, 956 (1972). We leave to another day the question of whether even an active website is sufficient to support personal jurisdiction in a particular case.
CONCLUSION
{34} We affirm the district court’s grant of the motion to dismiss Defendant Pillar To Post, holding that New Mexico has no personal jurisdiction in this case.
{35} IT IS SO ORDERED.
FRY and VIGIL, JJ., concur. | [
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OPINION
BUSTAMANTE, Judge.
{1} This is another nationwide class action involving modal premiums. The district court certified a class potentially numbering 700,000 “holders of Old Line insurance policies who purchased their policies at any time between January 1, 1980, and the date of class certification and who have paid modal premiums ... to Old Line.” In line with our opinion in Berry v. Federal Kemper Assurance Co., 2004-NMCA-116, 136 N.M. 454, 99 P.3d 1166 (No. 23,186) (July 23, 2004), we affirm in part, reverse in part, and remand for further consideration.
FACTS AND PROCEDURES
{2} The pleadings in this case follow a familiar pattern. Plaintiff Lisa Enfield alleges that, because she pays quarterly, she is being charged a higher premium by Defendant Old Line Life Insurance Company (Old Line) than is provided for in her policy. Plaintiff Enfield’s policy provides for a quarterly “Billing Frequency” and a “Mode Premium” of $179.14. Plaintiff contrasts these provisions with the “Policy Specifications” page which reflects an annual premium of $676 and a general statement that “premiums other than annual are a percentage of the annual premium.” Plaintiff also relies on premium tables that reflect “Maximum Annual Life Insurance Premium” of $676 for the first twenty years of the policy. Plaintiff also alleges that “Old Line knowingly failed to state or disclose material facts regarding ... payment options under the policy.” Specifically, Plaintiff alleges Old Line did not disclose the dollar difference between the various payment modes available, and, further, did not translate the dollar differential into an “effective annual percentage [or] interest rate.”
{3} Relying on these basic factual allegations, Plaintiff asserted six causes of action: (1) breach of contract (Count I); (2) failure to disclose material facts (Count II); (3) breach of the implied covenant of good faith and fair dealing (Count III); (4) violation of the Unfair Practices Act, NMSA 1978, §§ 57-12-1 to -22 (1978, as amended through 1999) (Count TV); (5) a request for injunctive relief (Count V); and (6) a request for declaratory relief (Count VI).
{4} Plaintiff requested nationwide certification for Counts I, II, and III, and a fifteen-state subclass for the Unfair Practices Act claim. After briefing and an evidentiary hearing, the district court refused to certify the subclass but granted the rest of the request. The parties did not file any dispositive motions before dealing with the class issues. Thus, the district court has not considered the merits of any of the claims.
{5} At the certification hearing, the parties stipulated to all of the documentary evidence, except Defendant’s Exhibit CH, which the district court admitted after argument. Exhibit CH is a copy of the file created by Plaintiffs insurance agent during the sale process. The documentary record parallels the pattern found and discussed in our opinion in Berry. The term life policy forms used by Old Line during the class period were essentially identical. The application forms were essentially identical for the class period. The agency agreements and independent marketing organization agreements through which Old Line allowed sale of its policies were essentially uniform throughout the class period. These form agreements all purport to limit the sales person’s ability to modify policies and prohibit the conveyance of any material about Old Line’s policies without its permission.
{6} None of the documentary material designed to reach policy holders contains any information describing Old Line’s modal premium factors and none provides any explicit statement concerning the dollar cost differential inherent in paying more than once a year. Old Line agrees it has never translated the cost differential into an interest rate or APR figure, though it asserts it does not do so because there is no loan involved in the premium structure. None of Old Line’s documentary material specifically forbade agents from disclosing the comparative costs of the various modes of payment, though its Compliance Manual places strict requirements for pre-approval of any “sales material” proposed to be used by selling agents.
{7} At the hearing, the district court heard testimony from Plaintiff, her insurance broker, an expert on insurance regulation as it affects consumers who testified for Plaintiff, a marketing consultant employed by Old Line, an expert in life insurance marketing who testified for Old Line, and an expert in insurance regulation who testified for Old Line.
{8} The facts specific to Plaintiffs case are straightforward. She contacted an independent insurance broker inquiring about term life, disability, and medical insurance. The broker secured a policy for Plaintiff with Old Line. Plaintiff asserts that the broker never told her there was a different premium depending on the mode or frequency of payment she chose. Plaintiff also admitted that, until just prior to filing this suit, she did not do the arithmetic to determine if her premium she was paying exceeded the “maximum” premium reflected on the face of the policy.
{9} Plaintiffs insurance broker testified generally that it was his practice to explain the dollar difference between an annual premium and the mode chosen by his clients. He could not recall specifically if he had that conversation with Plaintiff, or whether he reviewed the actual policy with her after it was issued. He agreed he did not give comparisons for all payments and that he did not disclose modal factors as such. The sales brochure describing premium calculations was not to be distributed to the public. The insurance agent agreed he never gave Plaintiff the modal factors for her policy, and in fact he didn’t know the modal factors and didn’t care about them. His focus was on periodic cost. The agent agreed he did not disclose modal premiums in terms of an APR or interest rate. The agent said “I’d confuse her and myself.”
{10} Old Line’s marketing consultant— who has never actually sold life insurance— testified generally that Old Line does not provide a script to be used during sales and it does not try to teach agencies “how to actually sell life insurance.” She also testified that agents are not required to get prior approval of oral statements to prospective policyholders. The marketing consultant agreed that Old Line’s training materials are standard across the country and include rate quotation software that does not disclose dollar differential between modes and does not give modal factors. The marketing consultant also agreed that there was nothing in Old Line’s training materials telling agents they should disclose modal factors, dollar differences between payment modes, or interest rate calculations.
{11} Old Line’s marketing and sales expert opined that Old Line’s life insurance products are sold in unique, individual transactions. He likened life insurance sales to a financial transaction where people’s “wants and needs and affordability and sophistication” differ. In his opinion it would be necessary to “interview” both the agent and the buyer to find out what happened in each transaction. He saw nothing in the standard agent’s agreement that limited what an agent could tell a policyholder concerning premiums. This expert gave no opinion concerning the relative utility of disclosing dollar differentials between modes, or modal factors, or interest rates and APR equivalents.
{12} Twelve days after the close of the hearing, the district judge convened the parties in order to issue her oral ruling. The district court divided her remarks fairly neatly, dealing separately with the issues raised by the nationwide nature of the class, the issues surrounding factual predominance, and the Rule 1-023(A) NMRA issues.
{13} The district court conducted an evaluation of the state of the law across the country in accordance with the requirements of Sun Oil Co. v. Wortman, 486 U.S. 717, 730-31, 108 S.Ct. 2117, 100 L.Ed.2d 743 (1988) and Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 815, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985). The district court concluded, after reviewing the loss surveys provided by the parties, that the law was sufficiently uniform to allow class treatment of the breach of contract, duty of good faith, and the duty to disclose material facts causes of action. The district court recognized there were some variations among the states with regard to the duty of good faith claim, but proposed to address them by creating subclasses. It is unclear how the district court proposed to structure the subclasses or how they would actually be handled at trial. The district court also perceived some variation in breach of contract law in a few states, but felt it would not defeat predominance because the differences — involving the reasonable expectations doctrine — were not material to this ease.
{14} With regard to factual predominance, the district court decided that common issues regarding Old Line’s standardized forms training procedure and conduct would prevail over any potential individual issues. The district court recognized there were disputed issues of fact with regard to the disclosures made to Plaintiff. However, the district court felt that the case was unlikely to devolve into an exploration of each policy sales transaction. The district court in fact predicted that extrinsic evidence would not be allowed into evidence on the breach of contract claim.
{15} The district court was much less sanguine about whether the duty to disclose material facts claim would evade individualized analysis of cases, but certified it on a “when in doubt — certify” approach.
ANALYSIS
{16} We apply an abuse of discretion standard of review to class certification orders. “If the district court has applied the correct law, we will uphold its decision if it is supported by substantial evidence.” Berry, 2004-NMCA-116, ¶ 25,136 N.M. 454, 99 P.3d 1166.
BREACH OF CONTRACT AND DUTY OF GOOD FAITH
{17} We will deal with the breach of contract and duty of good faith claims summarily because the legal and factual issues here are indistinguishable from those we just decided in Berry. In Berry, we provided a comprehensive analysis of New Mexico insurance breach of contract law and its relationship to other states’ law on the issue. See Berry, 2004-NMCA-116, ¶¶ 82-88, 136 N.M. 454, 99 P.3d 1166. That analysis, including potential parameters for litigation of the claim, applies with full force here and need not be repeated, in particular since the district court here has not dealt with any issues going to the merits of the case. We are unconcerned with the district court’s statement that extrinsic evidence would not be allowed. We view the statement as more of a prediction (which may or may not prove accurate) for the course of litigation than as a ruling on the law in the case. Thus, we conclude, as we did in Berry, that the law of breach of contract “is uniform enough that our traditional notions of fair play and justice would not be offended by litigating the issue under New Mexico law.” Berry, 2004-NMCA-116 ¶ 82.136 N.M. 454, 99 P.3d 1166. We therefore affirm the district court’s certification of this claim.
{18} Berry also provides a full analysis of the duty of good faith issue, which applies here. The one difference between the cases is that the district court here did recognize that subclasses would be necessary to take state law variations into account. However, the district court did not take the analysis further and determine how many subclasses might be necessary. As a result, the district court did not explicitly gauge the effect of the subclass strategy on the question of predominance and jury trial management. As we stated in Berry, the parties and the district courts should be able to construct a reasonably definite trial plan with regard to these issues when certification is decided. Id. ¶ 96. We therefore remand the certification of the duty-of-good faith claim for the district court’s consideration of these matters.
{19} In addition, we note that the list of states with “different” duty-of-good-faith law, which the district court below noted, is different from the list we compiled in Berry. Id. ¶¶ 90, 91, 92. We will not try to reconcile the differences here since we are remanding for further consideration. We do note that the list in Berry was not intended to be comprehensive. The specific discussion there was in response to defendant Kemper’s argument and briefing.
FAILURE TO DISCLOSE
{20} The failure to disclose count poses a new problem for us. The district court in Berry refused to certify a similar claim and the plaintiff there did not appeal the decision. Thus, we have not had occasion to compare New Mexico’s law in the area with such law across the country. As we made clear in Berry, New Mexico courts cannot apply our law to parties from other states unless we can reasonably assure ourselves that the law in the affected jurisdictions is sufficiently consonant to avoid constitutional problems. Id. ¶¶ 77-80.
{21} The district court reviewed the law surveys provided by the parties. The Judge’s reaction to the failure to disclose law was two-fold. First, she acknowledged that “12 states seem to say that there’s not a fiduciary relationship between the insured and the insurance company.” She deflected that concern by observing that “those states do not stand for the proposition that there’s no duty to disclose material facts by an insurance company to an insured regarding premiums.” Thus, she found no conflict. Second, the district court also agreed that “[t]here’s lots of conflict in the area of fraud.” But, in the district court’s view, Plaintiff did not plead fraud and thus even “material differences and conflicts between the laws of New Mexico and the laws of some of the other states with respect to fraud is immaterial.” The district court did not recognize a need for subclasses in connection with this claim.
{22} Old Line argues that the failure to disclose claim is inescapably a fraud claim and simply is not a candidate for any class treatment—much less a nationwide class— because of the basic proof requirements for the tort and because of differences in the law across the country. Alternatively, Old Line argues that in any event the failure to disclose claim requires finding a duty to disclose, and asserts that the law regarding such a duty is too variable to sustain a nationwide class.
{23} Plaintiffs response is three-fold. Perhaps sensing some weakness in her position, Plaintiff first observes that the failure to disclose claim is simply an alternative claim which may not have to be dealt with at all, at least not until the breach of contract claim is resolved. We reject this suggestion. All class action certification issues should be dealt with on their merits by the district and appellate courts when and as presented. We disavow any approach which allows certification decisions to be made on a simple “we can deal with it later” basis. We certainly will not postpone consideration of the issue and chance, if not invite, another interlocutory appeal later.
{24} Plaintiffs more substantive response is that there are no individualized fact issues undermining the district court’s finding of predominance, and that there are no material differences in the law of the various states. The district court did not specifically address the potential factual issues surrounding the failure to disclose claim. Because we can resolve the claim on other grounds, neither will we.
{25} We disagree that the law is sufficiently uniform to sustain a nationwide class action and reverse on that basis. In any consideration of a multistate class action, the district court’s first task should be to decide what New Mexico’s law is on the subject. Only then can comparison be profitably made to other states.
{26} In Azar v. Prudential Insurance Co., 2003-NMCA-062, 133 N.M. 669, 68 P.3d 909, another case involving modal premiums, we explored in detail the contours of an insurer’s “duty to disclose.” We made clear that in New Mexico insurers have no pre-issuance duty to disclose based on the covenant of good faith or any notion of fiduciary duty to the insured. Id. ¶¶ 53, 56. We held that a pre-issuance common law duty might exist based on a series of cases recognizing an obligation on insurers and insureds “not to misrepresent or withhold information material to an insurance contract.” Id. ¶¶ 57, 62, citing Modisette v. Found. Reserve Ins. Co., 77 N.M. 661, 667, 427 P.2d 21, 25 (1967). The “general rule” recognized by the court in Modisette was not dependent on a finding of fraudulent intent or even negligent conduct for application. The duty is apparently grounded in the materiality of the information misrepresented or omitted. “To be material, the false statement does not have to actually contribute to a loss under the terms of the policy.” Prudential Ins. Co. v. Anaya, 78 N.M. 101, 104, 428 P.2d 640, 643 (1967). Materiality can be presumed in appropriate circumstances. See Rael v. Am. Estate Life Ins. Co., 79 N.M. 379, 382, 444 P.2d 290, 293 (1968).
{27} Thus, in New Mexico an insured does not have to rely on fraud to state a claim for a failure to disclose material information, though she can assume the burden of relying on fraud if she chooses. Plaintiff converts this state of the law in New Mexico into a general duty to disclose and argues by extension that for purposes of certification the contours or sources of this duty do not matter; what is important is the mere existence of the duty.
{28} We disagree. How a state imposes its duty to disclose — its doctrinal base and evidentiary requirements — cannot simply be ignored. If another state requires a showing of classic fraud to make a claim for failure to disclose, it would be constitutionally improper for New Mexico to impose a duty and consequent damages on a lesser showing. Wortman allows New Mexico to apply its law to transactions occurring in other states only if our law is substantially similar to the other jurisdictions. Thus, the district court was wrong when it decided that the contours of the law creating a duty to disclose were irrelevant. This was a basic error of law which under our standard of review supports, if not requires, a finding of abuse of discretion compelling reversal.
{29} While we certainly do not prejudge the issue, we find it difficult to see how the district court will be able to construct an acceptable class for this cause of action. We are convinced that a nationwide class decided under our Modisette fine of cases is impossible. Plaintiff has not even attempted to demonstrate that the Modisette rule is recognized across the country. For all we know it is a small minority rule. Lacking a basis for a nationwide class, the district court would have to try and construct a manageable set of subclasses. A subclass limited to Modisette-type jurisdiction might be workable. We do not believe, however, that the district court could properly try to create subclasses of states that require any type of fraud as the basis for the duty to disclose. As Plaintiff reminds us, she has not attempted to state a claim for fraud as the basis for her duty to disclose a cause of action. We do not see how Plaintiff could properly be a representative for and conduct a class in which fraud would have to be shown as a predicate to finding the duty.
CONCLUSION
{30} We affirm the certification of a class action with regard to the breach of contract claim. We reverse the certification of the duty of good faith and duty to disclose claims. The case is remanded for further proceedings not inconsistent herewith.
{31} IT IS SO ORDERED.
WE CONCUR: A. JOSEPH ALARID, Judge and CYNTHIA A. FRY, Judge.
. We reiterate our strong preference for findings of fact and conclusions of law on class certification issues.
. Because Old Line does not challenge the Rule 1-023(A) findings, we will not address them. | [
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OPINION
BUSTAMANTE, Judge.
{1} Defendant appeals his conviction for Child Abuse, NMSA 1978, § 30-6-l(D)(l), (2) (2001), and sentencing as a serious violent offense pursuant to NMSA 1978, § 33-2-34(L)(4)(n) (2004). The issues raised are whether: (1) the jury was properly instructed on negligent child abuse, (2) an acquittal on intentional child abuse and subsequent prosecution for negligent abuse violates double jeopardy, (3) character evidence was improperly excluded, (4) there is sufficient evidence for the conviction, and (5) the district court’s findings support its determination that Defendant’s conviction is a serious violent offense. We affirm.
FACTS AND PROCEEDINGS
{2} Defendant was indicted on August 9, 2000, for intentional child abuse resulting in great bodily harm, or in the alternative, negligent child abuse resulting in great bodily harm. At the first trial, the jury acquitted Defendant of charges relating to intentional child abuse, but hung on whether he committed negligent abuse. An order declaring a mistrial was entered on March 20, 2002. On September 17, 2002, Defendant was retried on one count of negligent child abuse. Defendant was convicted after a five-day jury trial. The testimony elicited at trial supports the following facts.
{3} On June 20, 2001, “DT” was delivered five weeks premature. According to the baby’s treating physician, Dr. Vigil, DT was released from the hospital on June 27 and examined by him on July 5, 19, and 21, 2000. Other than a mild case of bronchitis, Dr. Vigil observed DT to be a normal and healthy newborn.
{4} During this period, DT’s mother (Mother) dated Defendant, and testified that she usually stayed at his home a couple of nights a week. Mother testified that she and DT stayed with Defendant on July 23 and 24. At 3:20 p.m. on July 24, 2000, Mother left DT alone with Defendant at his home for the first time. She had arranged for Defendant to take care of DT so that she could go to work. Defendant agreed to take care of DT for about an hour and a half until the baby’s grandmother got off work and could pick him up. According to Mother, she changed and fed DT before leaving, then laid him on the sofa with his back against the sofa. She testified that DT was normal and healthy, up to and including July 23 through July 24 at 3:20 p.m.
{5} Two hours later, at 5:30 p.m., Defendant and the baby appeared at DT’s great-grandmother’s house. Defendant told DT’s great-grandmother that DT had rolled off the sofa and that there was a problem. She saw that DT had vomited and while cleaning him, noticed he was very pale, limp, and “just staring.” After making a brief call to her daughter for advice, she took DT to a nearby urgent care clinic where he was examined and taken to UNM Hospital via ambulance.
{6} Medical tests revealed that DT had a severe subdural hematoma, retinal hemorrhages, and brain injury resulting in total blindness. The State’s experts on shaken baby syndrome, Dr. Campbell and Dr. Wood, and two treating physicians testified that DT’s injuries were diagnostic of major head trauma, resulting from a high-speed car crash or a fall from two or three stories, or abusive head trauma, known as “shaken baby syndrome” In their opinions, however, the injuries were consistent with shaken baby syndrome resulting from violently shaking the baby. Dr. Campbell explained that DT had no external injuries indicative of an impact-type injury, and that his injuries were consistent with shaken baby syndrome and inconsistent with falling off a couch or shaking a baby to arouse it, even in a panic. She also opined that the injury was inflicted “very shortly [before DT became] symptomatic.”
{7} Defendant, on the other hand, repeatedly told family members and police that DT had fallen from the couch. Over time, his story changed: he claimed that he had a car accident on the way over to the great-grandmother’s house; he also said that he shook the ear seat to keep DT awake. Although Defendant’s mother denied it at trial, her prior testimony was that Defendant admitted shaking DT to revive the baby after he fell off the sofa. While he denied its implications, the State also produced a letter from Defendant to Mother admitting, “I shook [DT].”
{8} The district court sentenced Defendant to eighteen years imprisonment, and denied the State’s request for aggravation but found the offense qualified as a serious violent offense, pursuant to Section 33-2-34(L)(4)(n). Defendant appeals his conviction from the second trial and the status of his conviction as a serious violent offense.
Jury Instructions on Negligent Child Abuse
{9} At the second trial, the jury was instructed on negligent child abuse:
INSTRUCTION No. 3
For you to find Jake Schoonmaker guilty of Child Abuse resulting in Great Bodily Harm, as charged in Count 1, the State must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:
1. Jake Schoonmaker caused [DT] to be tortured or cruelly punished [DT];
2. Jake Schoonmaker acted with reckless disregard and without justification. To find that Jake Schoonmaker acted with reckless disregard, you must find that Jake Schoonmaker knew or should have known his conduct created a substantial and foreseeable risk, he disregarded that risk and he was wholly indifferent to the consequences of the conduct and to the welfare and safety of [DT];
3. Jake Schoonmaker’s actions or failure to act resulted in great bodily harm to [DT];
4. [DT] was under the age of 18;
5. This happened in New Mexico on or about the 24th day of July, 2000.
INSTRUCTION No. k
For you to find Jake Schoonmaker guilty of Child Abuse resulting in Great Bodily Harm, as charged in the Alternative of Count 1, the State must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:
1. Jake Schoonmaker caused [DT] to be placed in a situation which endangered the life or health of [DT];
2. Jake Schoonmaker acted with reckless disregard and without justification. To find that Jake Schoonmaker acted with reckless disregard, you must find that Jake Schoonmaker knew or should have known his conduct created a substantial and foreseeable risk, he disregarded that risk and he was wholly indifferent to the consequences of his conduct and to the welfare and safety of [DT];
3. Jake Schoonmaker’s actions or failure to act resulted in great bodily harm to [DT];
4. [DT] was under the age of 18;
5. This happened in New Mexico on or about the 24th day of July, 2000.
{10} Defendant presents two basic arguments. As best we can tell, his first argument is that, by omitting the terms “negligently and without justification,” in paragraph one, after “Schoonmaker” and before “caused,” the jury was allowed to convict Defendant under an improper standard. This omission, together with the use of the language “knew or should have known,” a term associated with a civil negligence standard, and the omission of “willful or wanton,” terms associated with reckless conduct, according to Defendant, confused and misdirected the jury by failing to apprise the jury that they were to consider Defendant’s guilt or innocence under a criminal negligence standard. Defendant also seems to say that the omission leaves the instructions ambiguous because they mix objective criteria, that he knew or should have known of the risk, with a subjective state of mind, that he disregarded the risk and was wholly indifferent to the consequences of his conduct. In short, Defendant asks how can a person who is unaware of a risk, disregard it? Defendant suggests that the jury might have improperly convicted him on a lesser civil negligence standard for extreme carelessness or mere inadvertence.
{11} This leads to. Defendant’s second objection, which is that the jury should have been instructed that the State has the burden to prove Defendant had a subjective awareness of the risk of harm. Defendant argues that an objective standard allows the jury to presume that he had a subjective intent to disregard the risk and unconstitutionally shifted the burden to him to rebut the presumption.
{12} “The propriety of jury instructions given or denied is a mixed question of law and fact,” which we review de novo. State v. Magby, 1998-NMSC-042, ¶ 8, 126 N.M. 361, 969 P.2d 965 (internal quotation marks and citation omitted) overruled on other grounds by State v. Mascarenas, 2000-NMSC-017, ¶ 27, 129 N.M. 230, 4 P.3d 1221. When reviewing for error, we determine “whether ‘a reasonable juror would have been confused or misdirected’ by the jury instruction.” State v. Cunningham, 2000-NMSC-009, ¶ 14, 128 N.M. 711, 998 P.2d 176 (quoting State v. Parish, 118 N.M. 39, 42, 878 P.2d 988, 991 (1994)). To preserve an issue for appeal, a defendant must make a timely objection that apprises the trial court of the specific nature of the claimed error and invokes an intelligent ruling thereon. State v. Varela, 1999-NMSC-045, ¶ 25,128 N.M. 454, 993 P.2d 1280.
{13} The record reveals that near the end of the second trial, the State requested, and the district court agreed, to delete the terms “negligently and without justification,” from the tendered jury instructions to be consistent with the standard form of UJI 14-602 NMRA. Defense counsel objected to the omission and proposed an instruction, which instructed that if the jury found Defendant intentionally and purposefully shook the baby, they should contact the district court before deliberating further. He also requested an instruction defining criminal negligence, or alternatively, to reinsert the omitted terms. As the argument was presented below, counsel was primarily concerned with the issue of double jeopardy — that the jury understood they could only convict Defendant if he was guilty of criminally negligent child abuse rather than intentional child abuse — and with the issue of whether the jury was confused by an ambiguous instruction that did not identify “criminal negligence” as the standard or distinguish it from an intentional act. The district court rejected Defendant’s proposed instructions.
{14} We find Defendant has narrowly preserved one issue: whether the omission of the terms, “negligently and without justification” was confusing or misleading such that the jury could have convicted Defendant under an improper standard. State v. Sosa, 1997-NMSC-032, ¶ 25, 123 N.M. 564, 943 P.2d 1017 (holding that the use of an ambiguous instruction that confuses or misleads a jury is reversible error). In negligent child abuse prosecution, the jury must be instructed that the state bears the burden to prove that the defendant was “criminally] negligent,” meaning that “defendant knew or should have known of the danger involved and acted with a reckless disregard for the safety or health of the child.” Santillanes v. State, 115 N.M. 215, 222, 849 P.2d 358, 365 (1993). The jury must also be instructed on the definition of “reckless disregard.” Magby, 1998-NMSC-042, ¶¶ 15, 20, 126 N.M. 361, 969 P.2d 965 (finding reversible error where negligent child abuse instruction did not define reckless disregard and jury might have understood negligence standard to criminalize careless or extremely careless conduct); accord Mascarenas, 2000-NMSC-017, ¶ 21, 129 N.M. 230, 4 P.3d 1221 (finding fundamental error where the jury could have convicted the defendant by erroneously using a civil negligence standard).
{15} In Magby, the jury was instructed on negligent child abuse in accordance with the standard articulated in Santillanes: “To find that [defendant] negligently caused child abuse to occur, you must find that [defendant] knew or should have known of the danger involved and acted with a reckless disregard for the safety or health of [Child].” Magby, 1998-NMSC-042, ¶ 5, 126 N.M. 361, 969 P.2d 965 (emphasis omitted). The Supreme Court reversed defendant’s conviction, holding that the terms “negligent” and “reckless disregard” in the instruction created a fatal ambiguity, which raised a possibility that the jury convicted defendant under a civil negligence standard. Id. ¶¶ 13-15, 22. The Court found an instruction defining “reckless disregard” would have cured this ambiguity and directed “the UJI Criminal Committee to formulate a definition of ‘reckless disregard’ similar to the one tendered by defense counsel in this case for use in [future] negligent child abuse cases.” Id. ¶ 17. UJI 14-602 was subsequently amended and the concept of criminal negligence was incorporated into the instruction by including the definition of reckless disregard as required by Magby.
{16} The district court instructed the jury under UJI 14-602 as it was drafted pursuant to these eases. The standard instruction omits the terms “negligently and without justification,” and incorporates a criminal negligence standard that includes a definition of reckless disregard. Omitting the negligence language did not create the type of ambiguity that was present in Magby or in the substantively similar case of Mascarenas, 2000-NMSC-017, ¶¶ 11, 13, 129 N.M. 230, 4 P.3d 1221. Since the definitions for criminal negligence and reckless disregard were incorporated into the instruction, the jury could not have convicted Defendant under a lesser civil standard. To the contrary, adding the negligence language would only serve to reintroduce an ambiguity that the Magby court expressly wanted to avoid. We hold that the tendered jury instructions were legally sufficient.
{17} The issues of whether the use of an objective and subjective standard in the same instruction might confuse a jury or violate due process were not preserved. When reviewing for error that has not been preserved, our Supreme Court has held:
[t]he doctrine of fundamental error should be applied sparingly, to prevent a miscarriage of justice, and not to excuse the failure to make proper objections in the court below. With regard to a criminal conviction, the doctrine is resorted to only if the defendant’s innocence appears indisputable or if the question of his [or her] guilt is so doubtful that it would shock the conscience to permit the conviction to stand.
State v. Reyes, 2002-NMSC-024, ¶42, 132 N.M. 576, 52 P.3d 948 (internal quotation marks and citation omitted). Defendant has not shown how the tendered instructions would put his conviction into doubt so as to result in a miscarriage of justice. Even if he did not know that violently shaking a baby could result in serious harm, there was sufficient evidence for the jury to find that the risk of harm to DT was so substantial and foreseeable that he should have known of the risk he created but that he was wholly indifferent to it. State v. McCrary, 100 N.M. 671, 673, 675 P.2d 120, 122 (1984) (holding that where defendant’s conduct creates a high degree of risk, subjective knowledge is inferred by circumstantial evidence tending to prove defendant should have realized the risk under the circumstances). “Conscious disregard” is not an element in negligent child abuse. By law, one need only have “reckless disregard” to the consequences in the face of substantial and foreseeable danger. Defendant failed to establish fundamental error.
Double Jeopardy
{18} Defendant argues that his acquittal of intentional child abuse and subsequent prosecution for negligent child abuse violate the federal constitutional guarantee against double jeopardy: (1) they are the same crime, (2) intentional abuse is a lesser included offense of negligent abuse, and (3) collateral estoppel prevents the State from relitigating the issue of whether Defendant shook the baby since the jury necessarily decided this fact when it acquitted him of intentional abuse. While Defendant asserts that the New Mexico Constitution affords broader protection against double jeopardy than its federal counterpart to bolster his lesser included offense claim, we find that this analysis was not preserved. State v. Gomez, 1997-NMSC-006, ¶¶ 22-23, 122 N.M. 777, 932 P.2d 1 (outlining steps to preserve broader application of state constitution). We thus limit our review to an analysis under the federal constitution.
{19} As a general rule, double jeopardy principles are not implicated when a mistrial is ordered for manifest necessity when the jury is unable to reach a verdict. State v. Desnoyers, 2002-NMSC-031, ¶33, 132 N.M. 756, 55 P.3d 968. Nonetheless, the double jeopardy clause of the federal constitution does protect a defendant from a second prosecution for the “same offense” after an acquittal or a conviction (multiple prosecutions) and from multiple punishments. State v. Martinez, 120 N.M. 677, 678, 905 P.2d 715, 716 (1995). This case falls in the “multiple prosecution” category. We apply a de novo standard of review to the constitutional question of whether there has been a double jeopardy violation. State v. Andazola, 2003-NMCA-146, ¶ 14, 134 N.M. 710, 82 P.3d 77.
{20} Federal and New Mexico state courts apply the “Blockburger test” “as the essence of the double jeopardy inquiry” in the context of multiple prosecutions. State v. Gonzales, 1997-NMCA-039, ¶7, 123 N.M. 337, 940 P.2d 185 (recognizing that the United States Supreme Court, applies Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) in the context of multiple prosecutions, and concluding that the New Mexico Supreme Court would do the same); accord State v. Powers, 1998-NMCA-133, ¶ 29,126 N.M. 114, 967 P.2d 454 (criminal contempt action and criminal prosecution); see also State v. Nunez, 2000-NMSC-013, ¶ 56, 129 N.M. 63, 2 P.3d 264 (applying Blockburger as one part of three part tests for double jeopardy in civil forfeiture and criminal prosecution); accord State ex rel. Schwartz v. Kennedy, 120 N.M. 619, 626, 904 P.2d 1044, 1051 (1995) (administrative sanction and criminal prosecution). We have also held that statutes that are pled in the alternative, such as in this case, are treated as separate offenses for purposes of our double jeopardy analysis. State v. Rodriguez, 113 N.M. 767, 771, 833 P.2d 244, 248 (Ct.App.1992).
{21} Our Supreme Court has interpreted the Blockburger test as a “canon of construction used to guide courts in deciphering legislative intent.” Swafford v. State, 112 N.M. 3, 9, 810 P.2d 1223, 1229 (1991). New Mexico employs a two-part test under Blockburger. The first inquiry is whether the offenses are unitary, that is, “whether the same conduct violates both statutes,” or whether the conduct is distinguishable. Swafford, 112 N.M. at 13, 810 P.2d at 1233. If the conduct is unitary, the elements of each offense are compared. “[I]f ... one statute is subsumed within the other, the inquiry is over and the statutes are the same for double jeopardy purposes.” Id. at 14, 810 P.2d at 1234. Conversely, if each offense requires proof of an additional element that is not present in the other, there is a presumption that the statutes punish distinct offenses and double jeopardy does not apply. Gonzales, 1997-NMCA-039, ¶7, 123 N.M. 337, 940 P.2d 185; see Swafford, 112 N.M. at 14, 810 P.2d at 1234. To succeed in a double jeopardy claim, Defendant must rebut that presumption by
showing [ ] contrary legislative intent as evidenced by the “ ‘language, history and subject of the statutes},]’ ” by differences in the particular evil addressed by each statute, by a showing that the statutes are usually violated together, by comparison of the punishment inflicted for violating each statute, and by other relevant factors.
Rodriguez, 113 N.M. at 772, 833 P.2d at 249 (citation omitted).
{22} Defendant argues that intentional child abuse is a general intent crime that merely requires proof that he committed an act “purposely,” or as he framed it, had the “conscious object to engage in the conduct” that is harmful. Negligent child abuse, in his view, requires a similar intent of reckless disregard or, as he defines it, “consciously engaging] in conduct while disregarding the risk.” By superficially conflating the elements of intentional and negligent child abuse in this manner, Defendant argues that the two offenses have the same elements. In the alternative, Defendant argues that intentional child abuse is a lesser included offense of criminally negligent child abuse, apparently because negligent child abuse adds an element of reckless disregard whereas intentional child abuse does not require any intent as to the consequences of a defendant’s conduct.
{23} There is no dispute that the offending conduct was unitary. Our focus is on the second inquiry — whether one offense is completely subsumed by the other. We suspect that part of Defendant’s confusion lies in his reference to cases in which child abuse has been characterized as a strict liability crime that does not require proof of intent. State v. Trujillo, 2002-NMCA-100, ¶ 14, 132 N.M. 649, 53 P.3d 909; State v. Herrera, 2001-NMCA-073, ¶13, 131 N.M. 22, 33 P.3d 22; State v. Ungarten, 115 N.M. 607, 609, 856 P.2d 569, 571 (Ct.App.1993); State v. Leal, 104 N.M. 506, 509, 723 P.2d 977, 980 (Ct.App.1986); State v. Fuentes, 91 N.M. 554, 557, 577 P.2d 452, 455 (Ct.App. 1978); State v. Lucero, 87 N.M. 242, 244, 531 P.2d 1215, 1217 (Ct.App.1975). Our first portrayal of child abuse as a strict liability crime was made when New Mexico courts applied a civil negligence standard for negligent child abuse. See Santillanes, 115 N.M. at 219, 849 P.2d at 362 (noting New Mexico courts had consistently applied a civil negligence standard under the child abuse statute). Apparently this conclusion was based on our observation that the legislature did not appear to differentiate between intentional or negligent child abuse. See Lucero, 87 N.M. at 244, 531 P.2d at 1217. However, the Supreme Court has long since clarified that the child abuse statute is not a strict liability crime in that it contains a mens rea element. See Santillanes, 115 N.M. at 218, 849 P.2d at 361 (noting that the Court did not have to consider whether child abuse was a strict liability crime because statute contained mens rea elements). “A strict liability statute ... imposes criminal sanction for an unlawful act without requiring a showing of criminal intent.” Lucero, 87 N.M. at 244, 531 P.2d at 1217. For a child abuse conviction to lie, the state must prove that the defendant acted with a culpable mens rea, a morally blameworthy mental state or “intent.” Magby, 1998-NMSC-042, ¶10, 126 N.M. 361, 969 P.2d 965; Santillanes, 115 N.M. at 218, 849 P.2d at 361.
{24} Child abuse is a general intent crime; unlike a specific intent crime, the statute does not require “proof of intent to do a further act or achieve a further consequence.” See State v. Brown, 1996-NMSC-073, ¶ 22, 122 N.M. 724, 931 P.2d 69 (explaining the difference between general and specific intent crimes) (internal quotation marks and citation omitted). Nevertheless, the statute does contain a mens rea element, which requires proof that a defendant acted with a culpable mental state: intentionally or criminally negligent. It also contains an actus reus element: the “voluntary act” that inflicts serious harm or death to the child.
{25} Our comparison of the statutory elements for intentional and negligent child abuse reveals that each offense contains an element that the other does not: the mens rea element. To prove intentional child abuse, the state must show that defendant intended to commit the wrongful act or the consequence. UJI 14-602. Negligent child abuse requires proof that defendant acted with reckless disregard: (1) defendant knew or should have known that his or her conduct created a substantial and foreseeable risk, and (2) defendant recklessly disregarded and was wholly indifferent to the consequences of his or her conduct and to the welfare and safety of the child. Id.
{26} We are unpersuaded by Defendant’s attempt to equate the two elements. Defendant seems to confuse the concepts of the actus reus element, the voluntary act, with the mens rea, the mental state that our legislature has deemed to be morally blameworthy. The child abuse statute punishes defendants for committing a voluntary act that is likely to result in serious harm to the child, such as violently shaking a baby, when it is his or her intent, purpose, or conscious object to engage in a harmful act (shake the baby) or to cause the harmful consequence. Joshua Dressier, Understanding Criminal Law 121 (Matthew Bender 2d ed.1999). It also punishes defendants for committing a voluntary act, such as shaking a baby, in a criminally negligent manner when he or she engages in substantial and unjustifiable risk taking. Id. at 122. The difference is that intentional abuse requires the jury to focus on the defendant’s intended conduct to determine whether it was his or her mind-set to violently shake or harm the child. In contrast, negligent abuse requires the jury to focus on the consequences of that conduct to determine whether the risk of serious harm was sufficiently substantial and unjustified under the circumstances to infer that defendant’s mind-set was one of indifference, rather than purpose and grossly contrary to common experience. See id. at 113-14. Since each statute requires proof of a different element, we find there is a presumption that the legislature intended to punish these crimes separately. Defendant has provided no evidence of any contrary legislative intent.
{27} We find our conclusion is supported by the plain language of the statute, which requires proof of different elements. The statute also seeks to protect children from two distinct but equally dangerous behaviors: intentionally abusive conduct and unintentional but grossly harmful conduct. The first deters persons who intend harmful acts against children, while the second promotes awareness and prudence when caring for children. It is also clear that these two statutes are mutually exclusive — one cannot commit an intentional act and an unintentional but substantially risky act at the same time, even though the act is voluntary as to both and the evidence may be sufficient to charge both offenses as alternative theories. We thus hold that the crime of intentional child abuse is not the same crime or lesser included crime of negligent child abuse.
{28} Defendant’s last argument on this issue is collateral estoppel. Collateral estoppel is an aspect of double jeopardy. State v. Abril, 2003-NMCA-111, ¶ 25, 134 N.M. 326, 76 P.3d 644. Defendant bears the burden to prove the factual predicate for collateral estoppel — that the ultimate issue was determined in his favor by the jury. Id. ¶26. Defendant has failed to establish his claim that to acquit him of intentional child abuse, the jury must have found he did not shake the baby. As we explained, the voluntary act of shaking the baby that results in harm is the actus reus element of both negligent and intentional child abuse. The jury could have found that Defendant did not intend to shake the baby in a violent manner, but failed to reach a verdict on whether he shook the baby in a criminally negligent, albeit violent manner. Hence, collateral estoppel principles do not apply. We find no double jeopardy violation.
Character Evidence
{29} Defendant claims that the district court abused its discretion by excluding admissible character evidence. Further, Defendant states that the court extended its ruling from the first trial to the second trial “to exclude all evidence offered by [Defendant] concerning his reputation in the community for peacefulness” and that the court “repeatedly excluded the presentation of this evidence.”
{30} In truth, the record reveals that the district court excluded specific instances of character evidence, which it ruled were not admissible under Rule 11^404(A) NMRA, to prove that Defendant acted in conformity with any particular trait. Significantly, the court also ruled that Defendant’s trait of character for peacefulness was relevant to a prosecution for child abuse based on shaken baby syndrome, and, therefore, admissible under Rule 11-405 NMRA, provided that the testimony was offered in the form of reputation or opinion testimony. The court repeated its ruling in detail throughout the first trial, and, in fact, allowed opinion testimony that Defendant was a good man who treated DT well prior to the incident.
{31} At the start of the second trial, the court reminded counsel:
I’m going to follow the rules and I’m going to expect each side to follow the rules on that. And, therefore, you will follow the rules relating to character evidence under 404, 405, opinion, reputation and ask questions in that form. And, frankly, as I recall testimony of mom last time, there is a whole lot of stuff like isn’t he a nice kid. Ask the proper form of the question [or] I’ll sustain the objection every time.... [M]y recollection of her testimony in the previous trial is your questions asked by the defense that would tend to solicit he is a nice kid, he wouldn’t do this kind of thing____And I’m telling you all right now that it’s not acceptable. And I would sustain objections on that.... You all open the door on character evidence ... with respect to one of your witnesses, the defense gets to rebut. The defense opens the door with respect to character evidence with respect to [Defendant] if there is any negative character evidence, the State can rebut with any.
Not only is his claim inaccurate, Defendant mysteriously cites no instances in the second trial where he offered, or the court excluded, evidence of his peaceful character. The testimony he cites occurred at the first trial which for obvious reasons was not appealed. Defendant has failed to preserve his objection. State v. Rojo, 1999-NMSC-001, ¶44, 126 N.M. 438, 971 P.2d 829 (citing principle that the court will not search the record to find whether an issue was preserved).
Sufficiency of the Evidence
{32} Defendant restates his double jeopardy arguments as a sufficiency of the evidence argument. He contends that the State presented the same evidence as it presented in the first trial, and all of that evidence led to only one conclusion: the shaking was non-accidental and there was no innocent purpose. Since the jury acquitted him of intentional child abuse, he concludes, the evidence cannot support a conviction for criminal negligence. We need not restate our double jeopardy analysis. Instead we limit our review to the issue of whether there was substantial evidence to support Defendant’s conviction for negligent child abuse.
In reviewing the sufficiency of evidence used to support a conviction, we determine whether substantial evidence exists to support a finding of guilt beyond a reasonable doubt for every element essential tó the conviction. We resolve all disputed facts in favor of the State, indulge all reasonable inferences in support of the verdict, and disregard all evidence and inferences to the contrary. Contrary evidence supporting acquittal does not provide a basis for reversal because the jury is free to reject Defendant’s version of the facts.
State v. Wilson, 2001-NMCA-032, ¶ 34, 130 N.M. 319, 24 P.3d 351 (citations omitted).
{33} At the second trial, the State had the burden to prove that Defendant knew or should have known of the substantial risk that his conduct could result in serious injury or death to DT, and that he recklessly disregarded that risk and was wholly indifferent to it or the child’s safety and health. See UJI 14-602. The evidence established that prior to 3:20 p.m. on July 24, 2000, DT was a normal and healthy baby. Two hours later, after being in Defendant’s sole custody and care, he was not. Medical witnesses testified that DT suffered substantial, serious injuries that were consistent with shaken baby syndrome and that those injuries would manifest shortly after being violently shaken. Although Defendant offered several innocent explanations, the consensus of the medical witnesses was that his explanations were medically unacceptable. He also admitted shaking DT on two occasions. We find that this evidence is sufficient for the jury to convict Defendant of criminally negligent child abuse. See Wilson, 2001-NMCA-032, ¶ 37, 130 N.M. 319, 24 P.3d 351 (holding that substantial evidence supported defendant’s conviction for negligent child abuse where medical testimony established serious injury to the child resulted from substantial force, defendant was the only person capable of inflicting the injury, he admitted tossing the child onto a bed and that its head hit something, and his explanation was medically unacceptable); State v. Pennington, 115 N.M. 372, 383, 851 P.2d 494, 505 (Ct.App.1993) (holding that circumstantial evidence may support a guilty verdict).
Findings Required by Section 33-2-34(L)(4)(n)
{34} At sentencing, the district court found that Defendant’s conviction for negligent child abuse qualified as a serious violent offense and limited his good time credit in prison to four days per month as authorized by the Earned Meritorious Deductions Act, Section 33-2-34(L)(4)(n) (EMDA). The district court found:
[DT] was vulnerable, and it is a terrible thing that happened to [him] that he [has] to live with for the rest of his life.... I don’t believe that there was a specific intent to do serious harm ... I think it’s implicit and literally built [into] the verdict of the jury. There was a finding by the jury beyond a reasonable doubt that what you did is something reasonably likely to cause harm, and a reasonable person would know that. And so I think the earned meritorious good time credit act does apply in the circumstances of this ease.
Defendant argues that negligent child abuse is not a serious violent offense as a matter of law. For a crime to qualify under subsection (L)(4)(n), Defendant contends, the district court must find that he acted with “subjective intent or knowledge” of the risk of harm. He concludes that imputing knowledge of the risk to him under an objective standard was a legally insufficient basis to qualify his conviction as a serious violent offense. We review de novo the issue of whether the court applied the correct legal standard under Section 33-2-34(L)(4)(n). State v. Romero, 2002-NMCA-106, ¶ 6, 132 N.M. 745, 55 P.3d 441.
{35} Defendant relies heavily on State v. Morales, in which we stated that the serious violent offenses listed in subsection (L)(4)(n) were limited to circumstances where the trial judge found the offense was “committed in a physically violent manner either with an intent to do serious harm or with recklessness in the face of knowledge that one’s acts are reasonably likely to result in serious harm.” 2002-NMCA-016, ¶ 16, 131 N.M. 530, 39 P.3d 747. In making this determination, the trial judge may also consider the resulting harm. Id. Defendant isolates our term, “in the face of knowledge,” to argue that we require actual knowledge of the risk.
{36} In Morales, we construed subsection (L)(4)(n) “to require a finding that a defendant had committed the crime ‘in a physically violent manner,’ acting either intentionally or recklessly, which resulted in serious harm to the victim.” State v. Cooley, 2003-NMCA-149, ¶ 18,134 N.M. 717, 82 P.3d 84 (emphasis added). In fact, we recognized that risk-taking knowledge is imputed to a defendant who is convicted of shooting at a dwelling or occupied building, which is a serious violent offense as a matter of law, even though proof of actual knowledge that the building was occupied is not required. Morales, 2002-NMCA-016, ¶14, 131 N.M. 530, 39 P.3d 747; see UJI 14-340 NMRA (indicating that proof that the defendant knew it was a divelling is sufficient). As we often recognize, “the element of intent is seldom susceptible to direct proof and accordingly may be proved by circumstantial evidence.” McCrary, 100 N.M. at 673, 675 P.2d at 122. Likewise, subjective knowledge can be attributed to a defendant in the case of negligent child abuse when the evidence establishes that the degree of risk was substantial and unjustified so that the defendant should know it was reasonably dangerous to the child’s life or health. See id. (“[Subjective knowledge of risk [is found] by considering what the defendant should realize to be the degree of risk, in the light of the surrounding circumstances.”) (internal quotation marks and citation omitted).
{37} Neither do we find any indication that the legislature intended to require subjective knowledge under subsection (L)(4)(n). That subsection identifies “first, second, and third degree” child abuse as a qualifying serious violent offense without restriction. Under Defendant’s standard, it would be virtually impossible to find negligent child abuse is a serious violent offense, even if it were committed in the most physically violent manner that resulted in death. See State v. Padilla, 1997-NMSC-022, ¶ 6,123 N.M. 216, 937 P.2d 492 (reviewing court construes statute to avoid absurd or unreasonable results). Such a finding contravenes legislative intent to deter grossly negligent conduct that poses a substantial risk of serious harm to children. See State v. Shafer, 102 N.M. 629, 637, 698 P.2d 902, 910 (Ct.App.1985) (“Statutes must be .construed according to the purpose for which they were enacted.”). The record reveals that the district court made the requisite finding of knowledge and its decision is supported by substantial evidence.
CONCLUSION
{38} We affirm Defendant’s conviction and the district court’s determination that negligent child abuse qualified as a serious violent offense under the circumstances of this case.
{39} IT IS SO ORDERED.
WE CONCUR: JAMES J. WECHSLER, Chief Judge, and CYNTHIA A. FRY, Judge.
. Of course intentional child abuse may still include instances where defendant has a specific intent to harm the child. Herrera, 2001-NMCA-073,1120, 131 N.M. 22, 33 P.3d 22. | [
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OPINION
CHÁVEZ, Justice.
{1} Petitioner Raphael Maso appeals from an opinion of the Court of Appeals which held that an English-language notice of a license-revocation proceeding that had been personally served on a Spanish-only speaker when he was arrested for driving under the influence of alcohol satisfies due process. On appeal to this Court, Petitioner argues for the first time in the course of these proceedings that we should grant greater protection under the due process clause of Article II, Section 18 of the New Mexico Constitution than is recognized under the due process clause found in the Fourteenth Amendment to the United States Constitution. We hold that Petitioner failed to preserve his state constitutional argument for an appellate determination. Because we also hold that the Court of Appeals correctly analyzed the notice requirement under the federal constitution, we affirm.
I. Facts and Proceedings
{2} On December 8, 2001, Albuquerque Police stopped Petitioner at a sobriety checkpoint and arrested him for driving under the influence of alcohol, contrary to NMSA 1978, § 66-8-102 (1999, prior to 2002 and 2003 amendments). Petitioner took a breath test which resulted in a .17 reading, more than twice the legal limit. He speaks and reads little to no English. Upon his arrest, as required by NMSA 1978, § 66-8-111.1 (1993, prior to 2003 amendments), the arresting officer served Petitioner with a notice of revocation which informs him, in English, that his driving privileges will be revoked in twenty days unless he requests a hearing in writing within ten days of service of the notice. Petitioner did not file his request for a hearing until well after the ten days had expired. His attorney sent a letter dated January 5, 2002, but postmarked January 7, 2002, requesting a hearing and explaining that his client “is a Spanish speaker and did not understand the Notice of Revocation or the fact that he had to submit his request within ten days.” On January 9, 2002, the Motor Vehicle Division of the Taxation and Revenue Department issued a standard form letter rejecting Petitioner’s request for a hearing on the grounds that the request was not made within ten days.
{3} Petitioner appealed the decision to the district court, which concluded that the denial of the hearing did not violate due process. Petitioner then appealed to the Court of Appeals, which affirmed the district court’s decision. The Court of Appeals held that “English-language notice regarding administrative revocation is compatible with due process when it is personally delivered to a driver during the course of his arrest for driving under the influence.” Maso v. State of New Mexico Taxation and Revenue Dep’t, 2004-NMCA-025, ¶ 21,135 N.M. 152, 85 P.3d 276. The Court of Appeals also affirmed the district court’s determination that the personal delivery of an English-language notice “satisfies due process, regardless of whether [Petitioner] understood English, because under the circumstances a reasonable driver who did not understand the contents of the notice would inquire further.” Id. ¶ 20.
{4} Petitioner filed a petition for writ of certiorari to this Court, raising only one issue: “whether, given the distinctive characteristics of New Mexico’s population, the Court of Appeals properly found that English language notice regarding administrative revocation is compatible with due process when it is personally delivered to a Spanish-only speaking individual.” Despite this general reference to “due process,” Petitioner’s only argument to this Court is that we should grant greater protections under the state constitution’s due process clause, N.M. Const, art. II, § 18, than under its federal counterpart. Indeed, Petitioner agrees that the federal constitution does not protect the right that he is seeking in this appeal: the right to have notice of a license-revocation proceeding which has been personally served on him printed in both Spanish and English.
II. State Due Process Claim
{5} Under Rule 12-216(A) NMRA 2004, in order to preserve a claim for appellate review, “it must appear that a ruling or decision by the district court was fairly invoked.” In State v. Gomez, 1997-NMSC-006, 122 N.M. 777, 932 P.2d 1, we clarified how, under our interstitial approach to interpreting the State Constitution, a party must fairly invoke a ruling that our constitution provides greater protection than its federal counterpart. If the relevant state constitutional provision has previously been interpreted to provide greater rights, the litigant need only: “(1) assert[] the constitutional principle that provides the protection sought under the New Mexico Constitution, and (2) show[ ] the factual basis needed for the trial court to rule on the issue.” Id. ¶ 22. Where, however, there is no established precedent for interpreting the relevant state constitutional provision differently from its federal counterpart, “a party also must assert in the trial court that the state constitutional provision at issue should be interpreted more expansively than the federal counterpart and provide reasons for interpreting the state provision differently from the federal provision.” Id. ¶23. Although Gomez was a criminal ease, its preservation requirement is an interpretation of Rule 12-216 of the Rules of Appellate Procedure, and we can see no reason why it should not apply to a constitutional argument concerning a license-revocation proceeding. For the following reasons, we hold that Petitioner has not satisfied the Gomez requirements for preserving his argument under the state due process clause.
{6} In both his initial pleading to the district court, styled a “petition for writ of certiorari,” and his subsequent statement of appellate issues, Petitioner did not mention the state constitution, but instead argued that the denial of a hearing violated his “right to procedural due process” because he cannot be said to have knowingly and intelligently waived his right to the hearing when he did not understand the notice. The district court rejected this argument, concluding that Petitioner was on “inquiry notice” when he received the English notice, which required him to take steps to have the notice translated. Having failed to do so, he cannot complain that he did not knowingly and intelligently waive his right to the hearing.
{7} In his brief-in-chief to the Court of Appeals, Petitioner made assertions relating to New Mexico’s unique characteristics, but did not refer to the state constitution or argue that it should provide greater protections than the federal constitution. Instead, Petitioner simply argued that, because the notice requirement of due process requires that efforts at notice be appropriate to the circumstances, New Mexico’s unique characteristics are relevant to that inquiry. Significantly, in his reply brief to the Court of Appeals, Petitioner for the first time describes the demographic composition of New Mexico’s population, citing to the United States Census.
{8} Thus, Petitioner’s argument that the New Mexico Constitution should offer greater protections than the federal constitution is made for the first time to this Court. Under Rule 12-216(A) and Gomez, this argument was not preserved for appellate review, and we decline to address it. Indeed, this case perfectly illustrates the purposes behind the Gomez preservation requirement. As part of the argument that New Mexico has “distinctive state characteristics” that should result in a different interpretation of the State Constitution, Gomez, 1997-NMSC-006, ¶ 19, 122 N.M. 777, 932 P.2d 1, Petitioner cites demographic data from the 2000 Census to argue that New Mexico is a predominately Spanish-speaking state. The State, however, disputes both Petitioner’s figures and his interpretation of them. Because Petitioner did not pursue this argument in the district court, the Census numbers are not a part of the record on appeal, nor are findings of fact resolving the disputed significance of those figures. We thus have no way of resolving this factual dispute, which, under Gomez, should have been brought first to the district court.
III. Federal Due Process Claim
{9} Because we decline to address Petitioner’s new state constitutional argument, we next decide whether the Court of Appeals correctly determined that the federal due process clause does not require a hand-delivered notice of license revocation be printed in both English and Spanish. As noted, Petitioner, in the course of arguing for greater protections under the state constitution essentially conceded that the federal constitution would not require the notice be printed in Spanish. We agree.
{10} Due process requires notice and an opportunity for a hearing before the State can suspend or revoke a person’s driver’s license. State v. Herrera, 111 N.M. 560, 562, 807 P.2d 744, 746 (Ct.App.1991); see also Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971). Due process does not require the same form of notice in all contexts; instead, the notice should be “appropriate to the nature of the case.” Mullane v. Central Hanover Bank & Trust, 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950). Actual notice is not required, so long as the notice given is “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Id. at 314, 70 S.Ct. 652; see also City of Albuquerque v. Juarez, 93 N.M. 188, 190, 598 P.2d 650, 652 (Ct.App. 1979) (requiring notice that is reasonably calculated to be effective “without imposing unrealistically heavy burdens on the party charged with the duty of notification”) (quotation marks and quoted authority omitted), overruled on other grounds by Herrera, 111 N.M. at 565, 807 P.2d at 749.
{11} As is required by the Implied Consent Act, see § 66-8-111.1, Petitioner was personally served at the time of his arrest with the notice of revocation which informed him, in English, that his license would be revoked in twenty days unless he requested a hearing within ten days. He does not complain that the notice was untimely or that the content of the notice would be insufficient to apprise an English-speaker of the right to a pre-deprivation revocation hearing upon request. Thus, unlike those cases where the notice was achieved by publication or a mailed letter which never arrived, Petitioner received actual notice of the revocation proceeding. The very narrow question we face in this case is whether the hand-delivered notice whose contents would sufficiently apprise an English-speaker of the revocation hearing violates the federal due process clause because it is not also printed in Spanish. Because of the nature of the hearing at issue, and because we agree with the Court of Appeals that a reasonable person in Petitioner’s situation would have the notice translated, we conclude that the hand-delivered English-only notice is “appropriate to the nature of the case,” and “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane, 339 U.S. at 313-14, 70 S.Ct. 652.
{12} A license-revocation proceeding is distinct from a criminal trial for driving under the influence. Under the Implied Consent Act, the purpose of the revocation proceeding is “to protect the public by promptly removing from the highways those who drive while intoxicated.” Bierner v. Taxation & Revenue Dep’t, 113 N.M. 696, 699, 831 P.2d 995, 998 (Ct.App.1992). Thus, findings made in revocation hearings are not given preclusive effect in a subsequent criminal trial because doing so would “slow down what should be a summary administrative proceeding designed to handle license revocation matters quickly.” State v. Bishop, 113 N.M. 732, 735, 832 P.2d 793, 796 (Ct.App. 1992). A license-revocation hearing must be held no later than ninety days after the notice of revocation, NMSA 1978 § 66-8-112(C) (1993, prior to 2003 amendments), and that time limit has been interpreted as mandatory and not waivable, Taxation & Revenue Dep’t v. Bargas, 2000-NMCA-103, ¶ 15, 129 N.M. 800, 14 P.3d 538 (Ct.App.2000). The hearing itself was limited by Section 66-8-112(E) to the following issues:
(1)whether the law enforcement officer had reasonable grounds to believe that the person had been driving a motor vehicle within "this state while under the influence of intoxicating liquor;
(2) whether the person was arrested;
(3) whether this hearing is held no later than ninety days after notice of revocation; and either
(4)
(a) whether the person refused to submit to a test upon request of the law enforcement officer; and
(b) whether the law enforcement officer advised that the failure to submit to a test could result in revocation of the person’s privilege to drive; or
(5)
(a) whether the chemical test was administered pursuant to the provisions of the Implied Consent Act; and
(b) whether the test results indicated an alcohol concentration of eight one-hundredths or more in the person’s blood or breath if the person is twenty-one years of age or older, or an alcohol concentration of two one-hundredths or more in the person’s blood or breath if the person is less than twenty-one years of age.
Although a party may raise constitutional issues to the district court which the hearing officer could not address, review of the statutory issues is typically limited to whether “reasonable grounds exist for revocation or denial of the person’s license or privilege to drive based on the record of the administrative proceeding.” § 66-8-112(H).
{13} Given the summary nature of a license-revocation hearing, and its limited effect, we agree with the Court of Appeals that an English-language notice of the proceeding which was personally served satisfies due process, even if that person does not read English. Specifically, such notice satisfies due process because a reasonable person who has received the notice during an arrest for driving while intoxicated would inquire further and have the notice translated. In a different administrative context, the Court of Appeals has rejected a’ claim of inadequate notice of a planned billboard where the claim was based on the fact that the landowners objecting to the billboard could not understand the description of its location in the notice provided them. See Bogan v. Sandoval County Planning & Zoning Comm’n, 119 N.M. 334, 890 P.2d 395 (CtA.pp.1994). In so doing, the Court of Appeals held that “where circumstances are such that a reasonably prudent person should make inquiries, that person is charged with knowledge of the facts reasonable inquiry would have revealed.” Id. at 341, 890 P.2d at 402. Likewise, we hold that where a person has been arrested for driving while intoxicated and has been personally served with papers, a reasonable person who did not understand those papers would seek to have them translated or explained.
{14} We therefore agree with those cases from other jurisdictions that have held that an English-language notice puts the non-English-speaker on inquiry notice to have the notice translated and, for that reason, satisfies due process. See, e.g., Soberal-Perez v. Heckler, 717 F.2d 36, 43-44 (2d Cir.1983); Guerrero v. Carleson, 9 Cal.3d 808, 109 Cal.Rptr. 201, 512 P.2d 833, 835-37 (1973); People v. Villar-Villa, 983 P.2d 181, 182-83 (Colo.Ct.App.1999); Alonso v. Arabel, Inc., 622 So.2d 187, 188 (Fla.Dist.Ct.App. 1993); Hernandez v. Dep’t of Labor, 83 I11.2d 512, 48 Ill.Dec. 232, 416 N.E.2d 263, 266-67 (1981); Vasquez v. State, 700 N.E.2d 1157, 1159 (Ind.Ct.App.1998). Like the Court of Appeals, however, we do not accept all the reasoning advanced in some of those cases, particularly the argument that English is always adequate because this is an English-speaking country. See, e.g., Guerrero, 109 Cal.Rptr. 201, 512 P.2d at 835. Indeed, our state constitution and statutes recognize the need for Spanish in some circumstances and the use of Spanish in other contexts. See N.M. Const, art. XII, § 8 (providing that the legislature shall provide for the training of teachers in public schools in English and Spanish to qualify them to teach English to Spanish-speaking students); N.M. Const, art. XX, § 12 (“For the first twenty years after this constitution goes into effect all laws passed by the legislature shall be published in both the English and Spanish languages and thereafter such publication shall be made as the legislature may provide.”); NMSA 1978, § 14-11-11 (1923) (requiring publication of certain local proceedings and providing that when the local population is “not less than seventy-five percent Spanish speaking” publication in Spanish is sufficient). None of those provisions require Spanish-language notice in this context, and for that reason they do not alter the federal constitutional analysis.
IV. Conclusion
{15} Because Petitioner first asserts his state constitutional claim to this Court, we hold that the argument is not properly preserved, and we do not reach it. Further, we affirm the Court of Appeals, which held that the federal due process clause does not require that the notice of an administrative license-revocation hearing which has been personally served upon a person arrested for driving while intoxicated be provided in both English and Spanish.
{16} IT IS SO ORDERED.
MAES, Chief Justice, MINZNER, SERNA and BOSSON, Justices, concur.
. We recognize that, under our interstitial approach to state constitutional interpretation, we ordinarily first address whether the federal constitution protects the right asserted. See Gomez, 1997-NMSC-006, ¶ 19, 122 N.M. 777, 932 P.2d 1. Because, however, Petitioner bases his entire appeal to this Court on the new and unpreserved argument that the state constitution should be interpreted more broadly, we chose to address that argument first.
. Nor did Petitioner raise any constitutional issue regarding the requirement that the request for a hearing be made in ten days or the lack of a provision for an extension of time. We therefore do not address those questions. | [
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OPINION
ALARID, J.
{1} Defendant, Armando Munoz, appeals his conviction on two counts of great bodily injury by vehicle (GBI). Defendant argues that the district court improperly refused his request for an instruction on the lesser offense of driving while intoxicated (DWI). Because we agree that Defendant was entitled to an instruction on the offense of driving-while intoxicated, we reverse his convictions and remand for a new trial.
BACKGROUND
{2} In the early morning hours of September 30, 2001, a SUV driven by Defendant collided with a motorcycle at the intersection of Sudderth Drive and Raines Drive in Ruidoso. The driver of the motorcycle and his passenger were severely injured. The only witnesses to the collision were the driver and passenger of the motorcycle; Defendant’s brother, who was a passenger in Defendant’s SUV; and Defendant.
{3} Defendant was charged, inter alia, with two counts of causing great bodily injury by vehicle, contrary to NMSA 1978, § 66-8-101 (B) and (C) (1991). At trial, the State’s theory was that Defendant caused the accident by pulling out of Raines Drive into the path of the motorcycle as it proceeded eastward on Sudderth Drive with the right of way. Defendant’s theory was that he was driving westward in the right-hand lane of Sudderth Drive and that the motorcycle veered over the centerline into his lane, causing the collision.
{4} The driver of the motorcycle conceded that he had been drinking prior to the collision. He testified that he had looked ahead prior to the accident and that Sudderth Drive was clear of traffic. The next thing he remembered was waking up in the hospital. The passenger testified that she recalled seeing an SUV matching the description of Defendant’s vehicle off to the right as the motorcycle approached Raines Drive. The passenger did not recall the collision itself.
{5} Defendant admitted that he had up to eight beers prior to the accident. The two samples analyzed in Defendant’s breath test showed values of 0.17 and 0.18 BAC. Defendant denied having been on Raines Drive that evening. Defendant told an investigating officer at the scene that he had been heading west on Sudderth Drive when the motorcycle struck his vehicle. Defendant’s brother testified that they were headed west on Sudderth Drive when the accident occurred.
{6} The State’s evidence included testimony by the investigating officers and an accident reconstructionist. Their testimony generally supported the State’s theory that the accident occurred in the eastbound side of Sudderth Drive, rather than the westbound side as claimed by Defendant.
{7} During a jury instruction conference, Defendant requested a jury instruction on DWI as a lesser-included offense of GBI by vehicle. Defendant argued that the State’s theory of the case was that Defendant’s impaired driving due to intoxication was the proximate cause of the collision. Defendant argued that under the State’s theory of the case, Defendant could not have committed GBI by vehicle without also having committed the offense of DWI. Defendant pointed out that without a DWI instruction, the only alternatives the jury would have would be letting Defendant go “Scott-free” or convicting him of GBI by vehicle. The State opposed the instruction, arguing that DWI was not a lesser-included offense of GBI by vehicle under the holdings of State v. Trujillo, 85 N.M. 208, 510 P.2d 1079 (Ct.App.1973) and State v. Tanton, 88 N.M. 333, 540 P.2d 813 (1975). Relying on Trujillo, the trial court denied Defendant’s requested instruction on DWI.
{8} The jury returned guilty verdicts on both counts of GBI by vehicle.
DISCUSSION
{9} Rule 5-611(D) NMRA 2004 of the New Mexico Rules of Criminal Procedure provides that “[i]f so instructed, the jury may find the defendant guilty of an offense necessarily included in the offense charged.” For purposes of Rule 5-611(D), we use the “terms ‘lesser-included’ and ‘necessarily-included’ interchangeably.” State v. Meadors, 121 N.M. 38, 41, n. 2, 908 P.2d 731, 734 n. 2 (1995). “The rules regarding lesser-included offenses developed at common law to aid the prosecution in cases in which its proof may have failed as to the higher offense charged but nonetheless was sufficient to support a conviction on a lesser offense.” 5 Wayne R. LaFave, et ah, Criminal Procedure § 24.8(d), at 574 (2d 1999). New Mexico common law extended the right to lesser-included offense instructions to defendants under appropriate circumstances. State v. Mitchell, 43 N.M. 138, 148-42, 87 P.2d 432, 433-34 (1939) (holding that trial court’s refusal of the defendant’s request for an instruction on simple assault in a prosecution for assault with a deadly weapon was reversible error where the evidence would have supported a verdict on simple assault). This entitlement is carried forward under Rule 5-611(D). Meadors, 121 N.M. at 47, 908 P.2d at 740 (observing that defendant’s right to a lesser-included offense instruction is “at least as great as the State’s right”).
{10} We review the propriety of a district court’s refusal to instruct on a lesser-included offense under a de novo standard. State v. Gaitan, 2002-NMSC-007, ¶ 10, 131 N.M. 758, 42 P.3d 1207.
{11} In Meadors, the Supreme Court endorsed two alternative tests for determining whether a party is entitled to an instruction on a lesser-included offense. The first test endorsed by Meadors is the “strict elements” test, which requires a trial court to grant a request for an instruction on a lesser-included offense “when the statutory elements of the lesser crime are a subset of the statutory elements of the charged crime.” 121 N.M. at 44, 908 P.2d at 736. In addition, Meadors recognizes an entitlement to an instruction on a lesser offense where:
(1) the defendant could not have committed the greater offense in the manner described in the charging document without also committing the lesser offense, and therefore notice of the greater offense necessarily incorporates notice of the lesser offense; (2) the evidence adduced at trial is sufficient to sustain a conviction on the lesser offense; and (3) the elements that distinguish the lesser and greater offenses are sufficiently in dispute such that a jury rationally could acquit on the greater offense and convict on the lesser.
Id. The Supreme Court characterized this three-prong test as the “cognate approach.” Id.
{12} In Meadors, the party requesting the lesser-included offense instruction was the State. Id. at 41, 908 P.2d at 734. Subsequently, in State v. Darkis, 2000-NMCA-085, 129 N.M. 547, 10 P.3d 871, we addressed a defendant’s request for a lesser-included offense instruction. Applying the cognate approach endorsed by the Supreme Court in Meadors, we held that the trial court had improperly refused the defendant’s request for a lesser-included offense instruction. Darkis, 2000-NMCA-085, ¶ 19, 129 N.M. 547, 10 P.3d 871. We reversed the defendant’s conviction and remanded for a new trial. Id. ¶ 21. Darkis noted that the purpose of the first prong of the Meadors cognate approach is to protect the defendant’s right to notice of the charges against which he must defend. Id. ¶ 16. Because lack of notice to the defendant is not a concern when the defendant himself requests the instruction, Meadors, 121 N.M. at 42, 908 P.2d at 735, Darkis recognized that the notice-giving function of the charging document assumes a lesser role in evaluating a defendant’s request for a lesser-included offense instruction, and consequently that “a defendant’s right to a lesser-included offense instruction [under Meadors ] is effectively greater than the State’s.” Darkis, 2000-NMCA-085, ¶ 16, 129 N.M. 547,10 P.3d 871.
{13} In the present case, Defendant’s request for a lesser-included offense instruction on driving under the influence fails the strict elements test of Meadors. We understand the strict elements test to be similar to the test followed by federal courts in determining whether one offense is a “necessarily-included” offense under Rule 31(c) of the Federal Rules of Criminal Procedure. Meadors, 121 N.M. at 41-42, 908 P.2d at 734-35 (discussing federal practice under Schmuck v. United States, 489 U.S. 705, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989)). Under the strict elements test, if it is possible, considering the statutory elements of the charged offense in the abstract, to hypothesize a manner of committing the greater offense without also committing the lesser offense, then the lesser offense is not necessarily included in the greater. Schmuck, 489 U.S. at 721, 109 S.Ct. 1443 (comparing statu tory elements of mail fraud and odometer tampering; holding that the offense of odometer tampering is not a necessarily-included offense of mail fraud); State v. Patterson, 90 N.M. 735, 737, 568 P.2d 261, 263 (Ct.App.1977) (holding that for purposes of former Criminal Procedure Rule 44(d) aggravated assault with a deadly weapon is not a lesser-included offense of assault with intent to kill because assault with intent to kill can be committed without the use of a deadly weapon). Under the strict elements test, driving while under the influence of intoxicating liquor is not a lesser-included offense of homicide by vehicle because it is possible to commit homicide by vehicle without being intoxicated, as for example, by driving recklessly. Trujillo, 85 N.M. at 213-14, 510 P.2d at 1084-85.
{14} However, our conclusion that Defendant’s request failed the strict elements test does not end our inquiry. Turning to Meadors’s cognate approach, we conclude that Defendant’s request satisfies each of the three parts of the cognate approach.
{15} The first prong of the Meadors’s test is satisfied as each of the two counts in the complaint charging GBI by vehicle expressly refers to driving under the influence of intoxicating liquor as one of the alternative circumstances rendering Defendant’s operation of his vehicle unlawful.
{16} The second prong of the cognate approach also is satisfied. The evidence at trial included Defendant’s admission that he had been drinking, testimony by an investigating officer that Defendant smelled of alcohol and failed two field sobriety tests, and testimony relating the results of Defendant’s breath test showing results of 0.17 and 0.18%. This evidence was sufficient to support a conviction for DWI.
{17} The third prong of the cognate test is met by substantial evidence putting in dispute the element of causation. Generally, a jury has “the privilege to believe or to disbelieve any testimony it hears.” State v. Alberico, 116 N.M. 156, 164, 861 P.2d 192, 200 (1993). A jury that disbelieved the State’s witnesses and believed the testimony of Defendant and his brother could rationally find that even though Defendant was intoxicated, the accident was caused by the driver of the motorcycle, who veered across the centerline into the side of Defendant’s vehicle. Thus, causation, the element that distinguishes driving under the influence from GBI by vehicle under the facts of this case, was sufficiently in dispute that a jury rationally could have acquitted Defendant of GBI by vehicle and found Defendant guilty of driving under the influence.
{18} The State argues that Trujillo and Tanton are controlling authority notwithstanding Meadors. We disagree. As we explain below, Trujillo and Tanton have been overtaken by the Supreme Court’s subsequent adoption of the cognate test.
{19} The defendant in Trujillo had been charged with homicide by vehicle while under the influence of intoxicating liquor or in the alternative while driving recklessly. Trujillo, 85 N.M. at 210, 510 P.2d at 1081. At trial, the defendant requested an instruction on the offense of driving under the influence of intoxicating liquor, contending that the evidence would have allowed the jury to find that the defendant had been driving while under the influence, but that his intoxication was not the proximate cause of the victim’s death. Id. at 213, 510 P.2d at 1084. The district court denied the requested instruction. Id. On appeal, we agreed that there was evidence establishing that the defendant had been driving under the influence. Id. Nonetheless, we affirmed the denial of the instruction, reasoning as follows:
Homicide by vehicle may be committed while driving under the influence of intoxicating liquor, but it may also be committed by driving while under the influence of drugs or reckless driving. Driving while under the influence of intoxicating liquor may be, but is not necessarily, an element of the homicide charge. The crime of homicide by vehicle may be committed without there being any driving while under the influence of intoxicating liquor. The converse is also true. The crime being distinct, driving while under the influence of intoxicating liquor is not an offense included within the homicide charge.
Id. at 213-14, 510 P.2d at 1084-85.
{20} Our analysis in Trujillo was akin to the “sub-set of the statutory elements” prong of Meadors. Meadors, 121 N.M. at 42, 908 P.2d at 735. Under a strict elements test, the denial of a lesser-included offense instruction under the facts of Trujillo was proper because it was possible, as we ourselves recognized, to hypothesize ways of committing homicide by vehicle that did not involve driving under the influence of intoxicating liquor — e.g., by driving recklessly, but sober; or by driving under the influence of drugs. Trujillo, 85 N.M. at 213, 510 P.2d at 1084. Under the cognate approach we are not confined to a comparison of the abstract statutory elements of the offenses. See Meadors, 121 N.M. at 44, 908 P.2d at 737 (applying the cognate approach by looking to both the greater offense, as described in the charging document, and the evidence adduced at trial). Moreover, as we understand Meadors, the cognate approach may be applied separately to each alternative means of committing the greater offense. Thus, Defendant’s right to an instruction on a lesser-included offense is not automatically defeated under the cognate approach merely because the State has charged alternatively. Because we obviously did not apply in Trujillo a test that was not adopted by the Supreme Court until years later in Meadors, Trujillo is not controlling authority where the party requesting a lesser-included offense instruction fails the strict elements test, but nevertheless is able to satisfy Meadors’s cognate approach. „
{21} For different reasons, we conclude that Tanton is not controlling. In Tanton, the defendant was charged in district court with homicide by vehicle while driving under the influence of intoxicating liquor, or, in the alternative, while driving recklessly. Tanton, 88 N.M. at 334, 540 P.2d at 814. The defendant argued that the prosecution in district court following an earlier conviction in municipal court on a charge of driving while under the influence of intoxicating liquor arising out of the same incident amounted to successive prosecutions in violation of the Double Jeopardy Clause. Id. Citing Trujillo, the Supreme Court rejected the defendant’s argument that driving under the influence of liquor was a lesser-included offense of homicide by vehicle:
A conviction or acquittal of a lesser offense necessarily included in a greater offense bars a subsequent prosecution for the greater offense. Ex parte Williams, 58 N.M. 37, 265 P.2d 359 (1954); State v. Medina, 87 N.M. 394, 534 P.2d 486 (Ct. App.1975)____[TJhis principle is not applicable in this case because the indictment charges in the alternative. The lesser offense of driving while under the influence of intoxicating liquor is not necessarily included in the greater offense of homicide by vehicle. State v. Trujillo, 85 N.M. 208, 510 P.2d 1079 (Ct.App.1973).
Id. at 335, 540 P.2d at 815 (emphasis added).
{22} The Supreme Court’s reliance on Trujillo in a double jeopardy context suggests that in 1975, when the Supreme Court decided Tanton, the Supreme Court viewed the test for determining whether two crimes were the “same offense” for double jeopardy purposes and the test for determining entitlement to a lesser-included offense instruction as largely interchangeable. Subsequently, the Supreme Court has recognized that although Bule 5-611(D) lesser-included of fense instruction jurisprudence and double jeopardy jurisprudence both employ the descriptive term “lesser-included offense,” they address different legal problems and bear only a “tangential relation” to each other. Swafford v. State, 112 N.M. 3, 12, 810 P.2d 1223, 1232 (1991).
{23} Tanton was decided prior to Meadors and in the context of a pretrial motion to dismiss on double jeopardy grounds. Tanton has little or no precedential value in determining Defendant’s entitlement under the Meadors cognate approach to a lesser-included offense instruction.
CONCLUSION
{24} The district court erred by denying Defendant’s request for an instruction on the lesser-included offense of DWI. We reverse Defendant’s convictions for GBI by vehicle under Counts I and II, vacate the Judgment and Sentence imposed as to Counts I and II, and remand for a new trial on Counts I and II.
{25} IT IS SO ORDERED.
JAMES J. WECHSLER, C.J. and RODERICK T. KENNEDY, J., concur.
. In New Mexico, a single breath test consists of two samples. 7.332.7(R) NMAC; 7.33.2.12(B)(1) NMAC. If the subject declines or is unable to give two samples, fewer are permitted for a valid test. 7.33.2.12(B)(1).
. Because we conclude that Defendant was entitled under New Mexico common law and Rule 5-611(D) to an instruction on the lesser offense of DWI, we need not reach Defendant's further claim that the district court denied Defendant due process of law when it rejected his request for an instruction on DWI as a necessarily-included offense of GBI by vehicle. See Schlieter v. Carlos, 108 N.M. 507, 510, 775 P.2d 709, 712 (1989) (noting “enduring principle of constitutional jurisprudence that courts will avoid deciding constitutional questions unless required to do so").
. The jury was given the following instruction on the elements of GBI by vehicle:
For you to find the Defendant guilty of causing great bodily injury by vehicle as charged in Count I [and II], the State must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:
1. The defendant operated a motor vehicle while under the influence of intoxicating liquor;
2. The defendant thereby caused the great bodily injury to [the victim];
3. This happened in New Mexico, on or about the 30th day of September, 2001.
. By way of example, if the State charges GBI by vehicle, alleging that the defendant’s operation of the motor vehicle was unlawful because the defendant was under the influence of intoxicating liquor or alternatively, because the defendant was driving recklessly, the cognate approach would be applied separately to each alternative. Depending on the evidence, the defendant could conceivably be entitled under Meadors to instructions on both of the lesser-included offenses— DWI and reckless driving. | [
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OPINION
CHÁVEZ, Justice.
{1} A jury convicted Defendant Tracy Johnson of two counts of first-degree felony murder, contrary to NMSA 1978, § 30-2-1(A)(2) (1994);. armed robbery, contrary to NMSA 1978, § 30-16-2 (1973); conspiracy to commit armed robbery, contrary to NMSA 1978, § 30-28-2 (1979) and Section 30-16-2; possession of a firearm by a felon, contrary to NMSA 1978, § 30-7-16(A) (2001); and tampering with evidence, contrary to NMSA 1978, § 30-22-5 (1963, prior to 2003 amendment). We review Defendant’s convictions pursuant to Article VI, Section 2 of the New Mexico Constitution and Rule 12-102(A)(1) NMRA 2004.
{2} Defendant argues the trial court violated his right to confront the witnesses against him when it admitted a tape recording of an unavailable accomplice’s custodial police interview, and that such error was not harmless beyond a reasonable doubt. Since Defendant filed this appeal, the United States Supreme Court decided Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which held that out-of-court “testimonial” statements are inadmissible against a criminal defendant absent a showing of both “unavailability and a prior opportunity for cross-examination.” Id. at 1374. The State concedes the recording at issue in this case was admitted in violation of Defendant’s Sixth Amendment right of confrontation under Crawford. Although the State acknowledges this ease “presents an extremely close call on the issue of harmless error,” the State asks that we decide this close case in its favor, on the basis that the improper admission of the accomplice statement was harmless beyond a reasonable doubt. However, because the accomplice’s inadmissible statement provided key evidence directly inculpating Defendant, and the remaining circumstantial evidence against him, although strong, was disputed, we conclude the error was not harmless with respect to all convictions except the conviction of tampering with evidence. Accordingly, we reverse Defendant’s convictions of felony murder, armed robbery, conspiracy to commit armed robbery, and felon in possession of a firearm, and we affirm Defendant’s conviction of tampering with evidence.
I. Background
{3} The two victims were beaten, robbed, and killed inside a residence belonging to one of them. One victim had been shot three times — once in the head, once in the chest, and once in the back — and had been struck in the head by a hard, curved object, consistent with a tire iron. The other victim had been shot twice — once in the head and once in the chest — and had also been struck in the head by a hard, curved object. A ballistics expert testified that all five bullets were fired from the same firearm. However, neither the murder weapon nor any of the items stolen from the housq were ever recovered.
{4} It was undisputed at trial that on the evening of the killings, Defendant, along with acquaintances Jamall Young (“Young”), Coley Ingram (“Coley”), and Jeff Hoff (“Hoff’), returned to the victim’s house to purchase cocaine, where they had made a drug purchase earlier in the day with Coley’s brother, Wayne Ingram (“Wayne”). During this second drug transaction but prior to the commencement of the robbery, Defendant and Coley went by themselves into a bathroom, leaving Hoff and Young in the bedroom with the two victims. What occurred after these events is disputed, and the State’s theory is significantly different from Defendant’s.
{5} The State argued that, while in the bathroom, Defendant and Coley formed a conspiracy to commit armed robbery, then used a firearm and a tire iron to rob and murder the two victims. Defendant’s theory at trial, directly supported by his own testimony, was that while in the bathroom he not only rejected Coley’s proposal to rob the victims, but believed he had talked Coley out of committing a robbery. Further, Defendant claimed that once the robbery commenced, he tried to stop Coley from committing the robbery by urging him to put away the firearm.
{6} Over Defendant’s objections at trial, the State introduced the tape-recorded police interview of Young. Young did not testify at trial, nor did Defendant at any time have an opportunity to cross-examine Young on his statement. In the portion of the statement that was played for the jury, Young provided the only direct evidence that Defendant wielded a weapon or participated as an accomplice in the crimes. Further, Young’s statement provided the only direct evidence that Defendant himself stole property from the victims.
II. Young’s Custodial Statement
A. Application of Crawford
{7} The State does not dispute that the tape recording of Young’s police interview was admitted in violation of Defendant’s Sixth Amendment right of confrontation under Crawford, which held that out-of-court “testimonial” statements are inadmissible unless there has been a showing of “unavailability and a prior opportunity for cross-examination.” 541 U.S. at-, 124 S.Ct. at 1374. The Supreme Court did not decide, however, the full scope of the term, “testimonial”:
We leave for another day any effort to spell out a comprehensive definition of “testimonial.” Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.
Id. (footnote omitted and emphasis added). Because Young’s custodial interview falls squarely within the class of “testimonial” evidence under Crawford, 541 U.S. at-, 124 S.Ct. at 1365, we need not in this case attempt to delineate more fully the scope of that term. We simply hold that, under Crawford, because Defendant did not have an opportunity to cross-examine Young, the admission of Young’s statement constituted a per se violation of Defendant’s Sixth Amendment right of confrontation. We must address, therefore, whether the violation was harmless in this case.
B. Principles of constitutional harmless error
{8} Except in cases involving “structural” errors, which are subject to per se reversal, we are bound to apply the harmless-error analysis outlined in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), to federal constitutional errors. See Neder v. United States, 527 U.S. 1, 7-8, 15-16, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). In order to conclude a non-structural constitutional error does not require reversal, we must conclude the error was “harmless beyond a reasonable doubt.” Chapman, 386 U.S. at 24, 87 S.Ct. 824. Underlying the Chapman analysis is the acknowledgment “that there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction.” Id. at 22, 87 S.Ct. 824. Thus, the United States Supreme Court in Chapman fashioned a rule that would balance the Court’s inherent interest in vindicating federal constitutional guarantees against the utility of blocking the traditional practice of automatically “setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial.” Id.
{9} The Court has articulated the constitutional harmless-error standard variously since Chapman was decided, but the central focus of the Chapman inquiry has always been “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” Id. at 23, 87 S.Ct. 824 (quotation marks and quoted authority omitted). Stated differently, in the context of an essential element that was not presented to the jury, the reviewing court must be able to “conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error[.]” Neder, 527 U.S. at 19, 119 S.Ct. 1827; see Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (“The inquiry ... is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.”). Once the constitutional error has been established, the burden is on the State to demonstrate the error is harmless beyond a reasonable doubt. See Brecht v. Abrahamson, 507 U.S. 619, 630, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).
{10} In conducting this inquiry, the reviewing court must ever bear in mind that criminal defendants have a constitutional right to have a jury, not appellate court judges on review, decide guilt or innocence. See Sullivan, 508 U.S. at 279, 113 S.Ct. 2078 (“[T]o hypothesize a guilty verdict that was never in fact rendered — no matter how inescapable the findings to support that verdict might be — would violate the jury-trial guarantee.”); cf. Rose v. Clark, 478 U.S. 570, 578, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986) (noting that harmless-error review does not apply where the judge directs a verdict, because “the wrong entity judged the defendant guilty”). Therefore, it is imperative that a reviewing court be guided not by its own assessment of the guilt or innocence of the defendant — a matter which is irrelevant to the question whether the constitutional error might have contributed to the jury’s verdict — but rather by an objective reconstruction of the record of evidence the jury either heard or should have heard absent the error and a careful examination of the error’s possible impact on that evidence. See Yates v. Evatt, 500 U.S. 391, 404-05, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991) (examining the “probative force” of the constitutional error against the “probative force” of the evidence considered by the jury), overruled on other grounds by Estelle v. McGuire, 502 U.S. 62, 73 n. 4, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). If, at the end of that examination, we conclude there is a reasonable possibility the evidence complained of might have contributed to the conviction, we must reverse.
{11} In the specific context of a Confrontation Clause violation, as we are faced with in this case, the Supreme Court in Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), stated that the reviewing court must examine various factors in conducting its harmless-error inquiry:
These factors include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.
We emphasize that constitutional error must not be deemed harmless solely based on overwhelming evidence of the defendant’s guilt; the overall strength of the prosecution’s case is but one factor in our harmless-error analysis. The central focus of the inquiry, for which the Van Arsdall factors are but a guide, is whether there is a reasonable possibility the erroneous evidence might have affected the jury’s verdict.
C. Testimony admitted at trial
1. Testimony of Hoff
{12} Hoff testified that he was in the bedroom when Defendant and Coley left the room together. Hoff began to wonder what they were doing, and he left the room to look for them. Hoff found them in the bathroom discussing something. Defendant then told Hoff to “get out” and that they were “handling business.” After Defendant shut the bathroom door, Hoff stood by the door for about twenty seconds, trying to listen in on the conversation. Hoff could not make out what the two men were saying, but it sounded “like arguing, like maybe kind of anger.” It sounded as though “one person didn’t want to do it and one person did.” After about twenty seconds, Defendant and Coley came out of the bathroom and returned to the bedroom.
{13} During his direct examination, Hoff testified that as the two men entered the bedroom, Defendant said to the two victims, “[WJe’re gonna jack ya,” which Hoff interpreted to mean they were going to rob the two men. Hoffs testimony on this point, however, was called into question on cross-examination: there, Hoff conceded that he had earlier told the police that it was Coley, not Defendant, who said those words. Coley then turned to Hoff and, while pulling a tire iron out of his pants, asked Hoff whether he was “in or out.” Hoff responded, “I don’t want no part of this,” turned around, left the house, and waited for them in the car.
{14} At no point did Hoff see Defendant with a firearm, nor did he ever see Defendant holding a tire iron. Further, at no point did Hoff see Defendant in possession of any of the stolen property.
{15} As Hoff was sitting outside in the back seat of the car, Young brought an assault rifle out from the house and placed it in the back seat next to him. Young made two more trips with stolen property out to the ear over a period of several minutes. After Young’s third trip to the car, Hoff heard five gunshots report from the house. Moments later, Defendant, Young, and Coley emerged from the house. Then Defendant and Young got into the car while Coley stayed behind. Defendant drove the car back to Defendant’s house. During the ride, Hoff inquired whether the victims had been killed. Hoff could not recall whether he had asked Defendant if Defendant himself killed the victims or whether he had asked Defendant and Young if they had killed the victims. Nevertheless, although disputed by Defendant, Hoff testified that Defendant replied, “Yeah,” when the question was asked. According to Hoff, Defendant also repeatedly proclaimed that he was a “G,” which Hoff interpreted to mean a “gangster.”
{16} Finally, Hoff testified that when the three men — Defendant, Young, and Hoff— returned to Defendant’s house, Wayne was there. Hoff wanted to leave, so he picked up the telephone to call his mother for a ride home. Defendant told Hoff to hang up the phone and to walk home. Defendant then told Wayne to “watch” Hoff to ensure he does not “go to the cops.” After Defendant left the room, Hoff again used the telephone to call his mother. Hoffs mother picked him up at the canal about a quarter of a mile away. Wayne walked with Hoff to the canal, where Hoffs mother gave Wayne a ride to his destination.
2. Testimony of Wayne Ingram
{17} Wayne Ingram, although he was not present during the commission of any of the crimes, did spend portions of the evening with the other men as they drove around Carlsbad, including a stop at the victim’s house when the group first went there to purchase drugs. Wayne testified about a telephone call he received sometime after midnight on the night of the killings, allegedly sometime before the commencement of the robbery. During this call Wayne talked at different times both to his brother and to Defendant, and one of the two men asked Wayne where they could get a firearm. Wayne testified he could not recall which of the two men asked him about the firearm; however, he admitted that he had earlier told the police it was Defendant who asked the question. He also conceded during cross-examination, however, that he might have told the police it was Defendant rather than Coley because “I was trying to help my little brother.”
{18} Wayne also testified concerning the events that took place when the three men returned to Defendant’s house that morning, sometime around 4:00 or 5:00 a.m. Wayne had been asleep at Defendant’s house for a few hours, and was awakened when he heard Defendant, Young, and Hoff return. Wayne confirmed that one of the two men, Defendant or Young, asked him to “keep an eye on Hoff’; he could not recall, however, which of the two men said those words.
S. Testimony of Defendant
{19} Defendant testified at trial, directly contradicting both key testimony of Hoff and Wayne and facts asserted in Young’s police statement. Defendant testified that in the early morning hours, before the second trip to the victim’s house, Coley used the telephone to call Defendant’s house. Coley called to talk to Wayne, who was at Defendant’s house at the time, to tell him they were going to pick him up. Although Defendant also talked to his father during that call, he denied asking anyone about finding a gun.
{20} After the call, the four men drove to the house where the previous drug purchase had transpired. Defendant testified that he did not participate in either the robbery or the killings. According to Defendant, when the six men were in the bedroom ingesting cocaine, Coley called Defendant out of the bedroom to talk to him. Having stepped into the bathroom with Defendant, Coley asked Defendant how much money he had; Defendant replied he had fifty dollars. Coley then said, “[Y]ou know what ... we don’t have to buy it, we can take it.” Defendant replied, ‘We don’t have to take it, we’re straight.” Coley appeared to relent, and the two men left the bathroom. As soon as they reached the bedroom, however, and to Defendant’s surprise, Coley pulled out a firearm and said to the victims, “[T]his is a jack.” He then turned to Hoff and asked, “[A]re you in or are you out?” Hoff replied, “I’m out,” and left the room.
{21} Defendant testified that when Coley pulled the gun out, he told Coley to put the gun away. Coley asked the two victims where the drugs were, but they repeatedly said there were no more drugs in the house. In response, Coley stated, “[D]on’t act stupid with me.” Coley then put the firearm into his pants and picked up a black tool box, which he threw at the two victims. The tool box fell open, and a tire iron fell out of the box. Coley grabbed the tire iron and used it to strike one of the victims.
{22} Defendant testified that when Young returned to the bedroom, Young went over to the other victim and started “beating him up.” Coley again demanded to know where the drugs were, and one of the victims responded, “[Yjou’ve got all the dope[,] Coley, just take everything, I’m not going to say nothing.” Coley again struck both victims with the tire iron, and continued to demand to know where the drugs were. After Coley again pulled out the firearm, he then turned, pointed it, and fired at one of the victims. At this point Defendant ran out of the house.
{23} According to Defendant, during the robbery he repeatedly told Coley to put away the firearm, and at no point did Defendant himself wield either the firearm or the tire iron. Defendant also testified that at no point did he agree to participate in, assist, or encourage the robbery in any way. He asserted that it was Coley alone who struck the two victims with the tire iron and shot them with the firearm. Defendant established that Coley was a large man, approximately six feet, two inches tall and 270 pounds, and that by comparison Defendant was much smaller — five feet, six inches tall and 170 pounds. When asked why he did not physically attempt to stop Coley from committing the armed robbery, Defendant replied, “How am I going to stop Coley? What am I going to do? All I could tell him is put the ... gun down.... I can’L — I’m not going to wrestle with him for the gun, I’m not going to attack him.”
{24} Defendant testified that he did not remove any property from the victim’s house. After the shootings, they ran out of the house, but Coley stayed behind, saying that he was going to “clean up this mess.” On the ride back to Defendant’s house, Hoff asked what had happened, and Defendant responded, “Coley shot them fools.” There was no further discussion on the way back to Defendant’s house.
{25} When they arrived at Defendant’s house, Defendant denied both telling Hoff to hang up the telephone and telling Wayne to watch Hoff. He explained by testifying that his father, who was at the house, wanted Wayne to leave. Hoff had just used the telephone to call his mother to come pick him up, and so Defendant told Wayne to get a ride with Hoff.
{26} Finally, Defendant testified that none of the stolen property was taken into his father’s house. Rather, he drove the car from his father’s house to “the Flume area,” where the car got stuck in the sand. As they tried to extricate the car from the sand, Defendant told Young to remove the stolen property from the car. At this point, Defendant saw Young make several trips with the property to a location somewhere in the area.
Jp. Impermissible evidence — Young’s tape-recorded statement to the police
{27} According to Young’s erroneously admitted statement, just before the armed robbery commenced, Young was in the bedroom when Coley and Defendant left the room together. When Defendant and Coley returned to the bedroom, Defendant was carrying a firearm, and Coley was pulling a tire iron out of his pants. Young was somewhat equivocal on this point, and he conceded to the police that the weapons may have been reversed when they entered the room: the firearm may have been in Coley’s hand and the tire iron in Defendant’s. Despite this equivocation, Young’s statement indicates that he witnessed Defendant wielding the firearm at some point during the ordeal.
{28} Upon entering the bedroom, Coley said to the victims: “this is a jack” or “we’re going to jack you.” Coley then turned to Young and Hoff and asked, “Are you in or out?” In response, Hoff immediately left, but Young, tacitly agreeing to participate in the robbery, began taking personal property from the house out to the car. Young also admitted that at one point he struck one of the victims with his fist, denying that he himself had wielded either the firearm or the tire iron.
{29} Young made several trips out to the car with stolen property. At one point, when he returned to the house, Young stated that “the weapons had changed,” and that Coley was holding the firearm and Defendant was holding the tire iron. Later, when Young was again outside at the car, Young heard several gunshots report from the house. Young went back into the house, where he saw Defendant and Coley both grabbing items from the room. Defendant and Coley then said, “[L]et’s go, let’s go, let’s go,” and the three men left the house. After a brief argument, Coley decided to stay behind, and Defendant and Young got into the car with Hoff and left. Young did not mention what happened to the stolen goods after the three men drove away.
{30} Young’s statement confirmed that Wayne was at Defendant’s house when the three men arrived. Young’s statement also confirmed that Hoff used the telephone at one point, and that Hoff and Wayne left the house together. However, Young did not mention Defendant or anyone else telling Hoff not to use the phone or telling Wayne to “watch” Hoff. Finally, Young stated that he and Defendant drove to “the Flumes,” where the car got stuck in the sand.
D. Discussion
{31} Because our harmless-error analysis instructs that “error may be prejudicial with respect to one conviction, but harmless with respect to another,” we review the effect of Young’s statement with respect to each conviction separately. Clark v. State, 112 N.M. 485, 487, 816 P.2d 1107, 1109 (1991).
1. Armed robbery
{32} “Robbery consists of the theft of anything of value from the person of another or from the immediate control of another, by use or threatened use of force or violence.” Section 30-16-2. A conviction of armed robbery requires that the defendant commit robbery “while armed with a deadly weapon.” Id. Under this theory, the State was required to prove, in relevant part: (1) Defendant took and carried away property from the victims or from their immediate control, intending to permanently deprive them of the property; (2) Defendant was armed with a firearm or tire iron; and (3) Defendant took the property by force or violence. See UJI 14-1621 NMRA 2004 (defining elements of armed robbery). Here, Hoff did not see Defendant holding either the firearm or the tire iron, and Defendant denied holding either weapon. Thus, Young’s statement provided the only direct evidence at trial that “Defendant took and carried away property,” that he “was armed with a firearm or tire iron,” and that he “took the property by force or violence.” Because Young’s statement provided the only direct evidence of guilt with respect to this theory of armed robbery, we conclude there is a reasonable possibility that its erroneous admission contributed to the verdict.
{33} The jury, however, was also instructed under a theory of accomplice liability for armed robbery; therefore, we apply our harmless-error analysis to that conviction as well. See NMSA 1978, § 30-1-13 (1972) (“A person may be charged with and convicted of the crime as an accessory if he procures, counsels, aids or abets in its commission ... although he did not directly commit the crime[.]”). To convict Defendant under a theory of accomplice liability for armed robbery, the State in this ease was required to prove, in relevant part: (1) Defendant intended that the armed robbery be committed; (2) the armed robbery was committed; and (3) Defendant helped, encouraged, or caused the armed robbery to be committed. See UJI 14-2822 NMRA 2004 (defining elements of accessory to a crime other than attempt and felony murder). It was undisputed at trial that Defendant’s alleged accomplice, Coley, committed armed robbery, thus satisfying the second element. We therefore review whether Young’s statement was harmless beyond a reasonable doubt with respect to the first and third elements.
{34} Accomplice liability requires that the defendant “share the criminal intent of the principal. There must be community of purpose, partnership in the unlawful undertaking.” State v. Ochoa, 41 N.M. 589, 599, 72 P.2d 609, 615 (1937). Indicia of such criminal intent “may be as broad and varied as are the means of communicating thought from one individual to another[.]” Id. Nevertheless, “[m]ere presence, of course, and even mental approbation, if unaccompanied by outward manifestation or expression of such approval, is insufficient.” Id.
{35} The State concedes this case “presents an extremely close call on the issue of harmless error.” The State argues, however, even discarding Young’s statement, the other evidence of Defendant’s intent to commit armed robbery was so overwhelming, and the impact of Young’s statement so minuscule by comparison, that it could not possibly have contributed to the verdict. See State v. Moore, 94 N.M. 503, 504, 612 P.2d 1314, 1315 (1980) (outlining a three-prong test to determine whether an evidentiary error was harmless).
{36} In this case, we cannot conclude beyond a reasonable doubt that Young’s direct, eyewitness account was “so unimportant and insignificant” that it could not have contributed to the verdict. Chapman, 386 U.S. at 22, 87 S.Ct. 824. While there is much other circumstantial evidence from which reasonable inferences of Defendant’s guilt might have been derived, Young’s statement provides the direct evidence of Defendant’s intent to commit armed robbery that rendered such inferences unnecessary. Because Hoff did not at any time see Defendant holding either a firearm or a tire iron, Young’s statement provided the only direct evidence that Defendant was armed. Because Hoff did not at any time see Defendant in possession of any of the stolen property, Young’s statement provided the only direct evidence that Defendant took or helped take the stolen items. Either of these facts, if believed, conclusively inculpates Defendant as an accomplice to the armed robbery, because ei ther fact conclusively establishes Defendant’s intent to commit armed robbery. With respect to the first Van Arsdall factor, therefore, Young’s statement was of central importance to the prosecution’s case against him on the charge of armed robbery.
{37} Regarding the second Van Arsdall factor, the State argues that portions of Young’s statement were merely cumulative of Hoffs testimony on the same points, and therefore harmless beyond a reasonable doubt. See State v. Woodward, 121 N.M. 1, 10, 908 P.2d 231, 240 (1995) (“The erroneous admission of cumulative evidence is harmless error because it does not prejudice the defendant.”). First, however, whether evidence is cumulative is merely one factor in the “host of factors” outlined in Van Arsdall, 475 U.S. at 684, 106 S.Ct. 1431. Therefore, improperly admitted evidence that is cumulative is not ipso facto harmless beyond a reasonable doubt: the reviewing court must further inquire into the effect that evidence might have had on the jury’s verdict. Second, we clarify that when determining whether certain erroneously admitted evidence is “cumulative,” the reviewing court must carefully assess the degree to which that evidence corroborated other similar evidence of the defendant’s guilt. To the extent the evidence corroborates, and therefore strengthens, the prosecution’s evidence, it cannot be deemed “cumulative” as we understand that term.
{38} Black’s Law Dictionary defines “cumulative evidence” as “[a]dditional evidence of the same character as existing evidence and that supports a fact established by the existing evidence (esp. that which does not need further support).” Black’s Law Dictionary 577 (7th ed.1999). We agree with the following articulation of the scope of the term:
Cumulative evidence is additional evidence of the same kind tending to prove the same point as other evidence already given; evidence of other and different circumstances tending to establish or disprove the same fact is not cumulative; nor is evidence of facts tending to prove circumstantially the existence of a fact cumulative to evidence which tends to establish the same fact directly.
State v. Harris, 334 Mo. 38, 64 S.W.2d 256, 258 (1933) (quotation marks and quoted authority omitted) (holding it was reversible error for trial court to exclude the defendant’s alibi evidence on the basis that it was cumulative). Because direct evidence is of a different character than circumstantial evidence, we cannot deem evidence that tends directly to prove a particular fact cumulative of other evidence that tends to prove that same fact circumstantially.
{39} Further, we must carefully evaluate the degree to which the inadmissible evidence might have operated to corroborate other similar evidence of guilt. The distinction has been articulated thus: [corroborative evidence tends to corroborate or to confirm, whereas cumulative evidence merely augments or tends to establish a point already proved by other evidence. State v. Kennedy, 122 Ariz. 22, 592 P.2d 1288, 1292 (Ct.App.1979) (emphasis added). The probative force — and therefore the possible prejudicial effects — of a particular piece of evidence tends to decrease the more redundant that evidence is in the context of other similar evidence. Therefore, only in very clear instances of accumulated evidence — where the evidence is so redundant that its corroborative effect is negligible — should the improper admission or exclusion of one accretion of such evidence be considered “cumulative” for purposes of our harmless-error analysis.
{40} The key element in this analysis is the degree to which the erroneously admitted evidence strengthened or corroborated the other evidence of guilt. If, for example, there were three pieces of properly admitted evidence of the same character supporting the same finding of fact, the erroneous introduction of a fourth might be properly deemed cumulative, in the sense that its admission would almost certainly have a negligible corroborative effect upon the other similar evidence. See State v. Lopez, 2000-NMSC-003, ¶ 21, 128 N.M. 410, 993 P.2d 727 (holding that improper testimony was cumulative of testimony of three other witnesses, who each “described substantially the same events, same statements, and same description” of the crime scene, and therefore harmless beyond a reasonable doubt); State v. Worley, 100 N.M. 720, 725, 676 P.2d 247, 252 (1984) (holding that the inferences that might have been drawn from the silence of a eodefendant not subject to cross-examination were cumulative of testimony provided by three eyewitnesses, and therefore harmless constitutional error). On the other hand, were there only one other piece of admissible evidence of the same character supporting the same finding, the inadmissible evidence in that case would clearly have had, if believed, a greater corroborative effect. Kegardless of whether there exists other properly admitted evidence to support the same factual finding, therefore, the correct inquiry is whether the erroneously admitted evidence was “so unimportant and insignificant,” Chapman, 386 U.S. at 22, 87 S.Ct. 824 that its corroborative effect upon other evidence of guilt was negligible.
{41} Here, certain portions of Young’s statement, viewed in isolation, were arguably cumulative. The two admissible eyewitness accounts — Hoffs and Defendant’s — establish that Defendant had a discussion with Coley in the bathroom immediately prior to the commencement of the armed robbery. Both accounts agree that Defendant returned to the bedroom with Coley and remained with him during the entire criminal episode. Finally, both accounts agree that Defendant drove the vehicle containing the stolen property away from the crime scene. Because Defendant does not contest these particular facts, the corroborative effect of Young’s statement on these points was negligible. Therefore, we may conclude that Young’s additional eyewitness support on these points was cumulative.
{42} Ultimately, however, the prejudicial portions of Young’s statement are not those which are uncontradicted and corroborated by multiple other sources, but those which are in dispute and which provide strong direct evidence that Defendant intended the armed robbery to be committed. Young’s statement provides the only direct evidence at trial that Defendant (1) threatened the victims with a weapon during the robbery, (2) grabbed the victims’ property, and (3) assisted Coley in carrying out the robbery. Contradicting this direct evidence, Defendant testified that he did not at any time hold either the firearm or tire iron, that he never touched any of the stolen items, and that he actively tried to persuade Coley to put away the firearm. While Defendant admitted remaining in the bedroom with Coley, Defendant directly disputed those portions of Young’s statement that indicate Defendant intended the armed robbery to be committed and that he assisted Coley in committing the robbery. Defendant’s testimony directly contradicted critical portions of Young’s statement, a fact which bears on our analysis of the third Van Arsdall factor, “the presence or absence of evidence ... contradicting the testimony of the witness on material points[.]” Van Arsdall, 475 U.S. at 684, 106 S.Ct. 1431.
{43} On this point, the State asks that we not attach too much significance to Defendant’s testimony because he presented no additional conflicting evidence to discredit the prosecution’s case, and because the jury was free to disregard Defendant’s “rather expected version of the events.” As an appellate court, however, we are not in a position to judge the credibility or weight of Defendant’s testimony. If it were otherwise, we would “become in effect a second jury to determine whether the defendant is guilty.” Neder, 527 U.S. at 19, 119 S.Ct. 1827 (quotation marks and quoted authority omitted). Instead, the correct inquiry is whether there exists a reasonable possibility the evidence complained of might have contributed to the jury’s verdict. Defendant offered testimony which, if believed, directly contradicts crucial facts necessary for a determination that he intended the armed robbery to be committed. We cannot say, therefore, that the erroneous admission of Young’s statement was harmless beyond a reasonable doubt.
{44} Arguably, one could cobble together sufficient evidence, essentially uncontested, to conclude the jury might have convicted Defendant as an accomplice to armed robbery even without considering Young’s statement. The undisputed evidence that Defendant discussed robbing the two men with Coley in the bathroom, that Defendant remained in the room with Coley while the armed robbery was committed, and that Defendant drove the vehicle containing the stolen property gives rise to a reasonable infer enee that Defendant intended the armed robbery to be committed. We sharply distinguish, however, review for sufficiency of evidence from harmless-error review. In reviewing whether constitutional error is harmless, we do not indulge all reasonable inferences tending to show guilt. On the contrary, we examine “whether the record contains evidence that could rationally lead” to a verdict of not guilty. Neder, 527 U.S. at 19, 119 S.Ct. 1827.
{45} Further, we emphasize that for purposes of harmless-error review, we review not the case the State might have presented, but the case the jury actually heard. See Sullivan, 508 U.S. at 279, 113 S.Ct. 2078. Specifically, we inquire whether the erroneously admitted evidence possibly influenced the evidence the jury actually considered, not some hypothetical pattern of evidence pieced together after the fact. In this case, the State’s particular reliance at trial on Young’s overwhelmingly inculpatory statement further militates in favor of a new trial. The prosecutor concluded his closing statement to the jury as follows:
Ladies and gentlemen, I know you have your own recollection of this evidence. The key importance is the statement that was made by Jamal[l] Young against him. Not only does that statement corroborate everything that Hoff tells you, but it implicates [Defendant] in everything that they did. Everything. In for a penny, in for a pound.
It should be no surprise that the case actually presented to the jury relied so heavily on Young’s statement. The prosecutor knew that Young’s statement, standing by itself, would have been sufficient to convict Defendant of armed robbery: Young’s account directly puts a gun in Defendant’s hand and stolen goods in his pocket. This is the case the jury actually heard, and Young’s statement lies at its core. We cannot conclude beyond a reasonable doubt that this evidence, which the jury actually heard, was of so little consequence that it did not contribute to the verdict.
2. Felony murder
{46} Felony murder consists of “the killing of one human being by another without lawful justification or excuse, by any of the means with which death may be caused ... in the commission of or attempt to commit any felonyf.]” Section 30-2-1(A)(2). Our case law regarding felony murder states an additional mens rea element that must be proved to the jury beyond a reasonable doubt: “an intent to kill or an intent to do an act greatly dangerous to the lives of others or with knowledge that the act creates a strong probability of death or great bodily harm.” State v. Ortega, 112 N.M. 554, 565, 817 P.2d 1196, 1207 (1991). Here, armed robbery was the predicate felony for the felony-murder charge, and the State prosecuted Defendant for felony murder under a theory of accomplice liability.
{47} It was undisputed that Defendant’s alleged accomplice, Coley, committed armed robbery “under circumstances or in a manner dangerous to human life” and that the victims were killed in the course of the armed robbery. See UJI 14-2821 NMEA 2004 (defining elements of accessory to felony murder). Therefore, the State in this case was required to prove, for each count of felony murder, the following four elements: (1) Defendant helped, encouraged or caused the felony of armed robbery to be committed; (2) Defendant intended that the armed robbery be committed; (3) Defendant helped, encouraged, or caused the killings to be committed; and (4) Defendant knew that he was helping to create a strong probability of death or great bodily harm. See id. Defendant disputed all four of these elements at trial.
{48} Because we have concluded that Young’s statement was not harmless beyond a reasonable doubt with respect to Defendant’s intent that armed robbery be committed, we must also conclude the statement was prejudicial with respect to his felony-murder conviction, based as it is on the underlying felony of armed robbery. In addition, we note that, because Young’s statement provided the only direct evidence that Defendant wielded the firearm or the tire iron — evidence that was directly rebutted by Defendant’s testimony — we conclude that Young’s statement was also prejudicial with respect to the jury’s determinations that Defendant helped, encouraged, or .caused the killings to be committed and that Defendant knew that he was helping to create a strong probability of death or great bodily harm.
3. Conspiracy to commit armed robbery
{49} “Conspiracy consists of knowingly combining with another for the purpose of committing a felony within or without this state.” Section 30-28-2. An overt act is not required; the crime is complete when the felonious agreement is reached. State v. Davis, 92 N.M. 341, 344, 587 P.2d 1352, 1355 (Ct.App.1978). Such an agreement need not be proven by direct evidence; the agreement may be in the form of a mutually implied understanding and may be inferred from circumstantial evidence. Id. at 342, 587 P.2d at 1353. There being no dispute about Coley’s intent to commit armed robbery, the State was required to prove beyond a reasonable doubt both (1) that Defendant intended to commit armed robbery, and (2) that Defendant entered into an agreement with Coley to commit armed robbery. See UJI 14-2810 NMRA 2004 (defining elements of conspiracy).
{50} Our harmless-error analysis of the armed-robbery conviction above applies also to these two elements of conspiracy. While Defendant admits he was in the bathroom with Coley when Coley proposed the robbery, Defendant directly disputed the State’s theory of the substance of that discussion when he testified that he did not agree to join in the robbery — indeed, that he thought he had persuaded Coley against it. We note that Hoffs testimony tended to corroborate Defendant’s account of the bathroom conversation when Hoff said it sounded as though “one person didn’t want to do it and one person did.” Hoffs and Defendant’s testimony on this point, if believed, would lead to a rational conclusion that Defendant had not entered into an agreement at this stage. Such a conclusion would thus heighten the importance of Young’s statement with respect to the jury’s determination that Defendant entered into an agreement with Coley to commit armed robbery: Young’s statement provided strong direct evidence that Defendant both intended to commit armed robbery and joined with Coley in committing the armed robbery. Therefore, we cannot say its erroneous admission was harmless beyond a reasonable doubt with respect to this conviction.
I. Possession of a firearm by a felon
{51} “It is unlawful for a felon to receive, transport or possess any firearm ... in this state.” Section 30-7-16(A). There being no dispute that Defendant, in the preceding ten years, had been convicted and sentenced to one or more years imprisonment, the State was required to prove that Defendant possessed a firearm at some point during the criminal episode. See UJI 14-701 NMRA 2004 (defining elements of possession of a firearm by a felon). Hoff did not at any time see Defendant holding a firearm. Young’s statement that he saw Defendant at one time holding the gun provides the only direct evidence that Defendant possessed a firearm. Further, Defendant expressly denied ever holding a firearm, providing evidence directly contradicting the State’s otherwise circumstantial case. Young’s statement providing both (1) the only direct evidence offered at trial that Defendant possessed a firearm and (2) strong circumstantial evidence from which it may be reasonably inferred that Defendant possessed a firearm, Young’s statement almost surely contributed to this verdict. Therefore, its erroneous admission was not harmless beyond a reasonable doubt.
5. Tampering with evidence
{52} “Tampering with evidence consists of destroying, changing, hiding, placing or fabricating any physical evidence with intent to prevent the apprehension, prosecution or conviction of any person or to throw suspicion of the commission of a crime upon another.” Section 30-22-5. Under a theory of liability as a principal, the State would be required to prove, in relevant part: (1) Defendant “destroyed or placed” the property taken from the victims; and (2) Defendant intended to prevent his apprehension, prosecution or conviction. See UJI 14-2241 NMRA 2004 (defining elements of tampering with evidence). Because the jury was instructed on a theory of accomplice liability for this charge, however, the State was required to prove at trial: (1) Defendant intended that the crime of tampering with evidence be committed; (2) the crime was committed; and (3) Defendant helped, encouraged, or caused the crime to be committed. See UJI 14-2822 (defining elements of accessory to a crime other than attempt and felony murder).
{53} Young’s statement is silent with respect to what happened ultimately to the stolen property and whether Defendant had a role in disposing of any physical evidence. Because Young’s statement did not serve to strengthen or corroborate the other evidence of guilt, we conclude its erroneous admission was harmless beyond a reasonable doubt with respect to this conviction.
{54} Because Defendant also asserts there is insufficient evidence in the record to sustain this conviction, we review “whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction.” State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988) (describing the standard of review for sufficiency of evidence); see also State v. Garcia, 114 N.M. 269, 273-74, 837 P.2d 862, 866-67 (1992) (emphasizing the requisite scrutiny to be applied). Defendant’s own testimony indicated his intent that the physical evidence be “placed” when he directed Young to remove the stolen property from the car, thus satisfying the first element of accomplice liability. Although Defendant testified he did not know what happened to the stolen property, Defendant did testify that he saw Young taking the stolen property from the car to another location. The other circumstantial evidence leads to a reasonable inference Young moved the evidence with the intent to prevent his apprehension, prosecution, or conviction, thus satisfying the second element. Finally, Defendant testified he drove the car from his father’s house to “the Flume area” with the specific purpose of disposing of the stolen property, satisfying the third element. Viewing the evidence in the light most favorable to the State, resolving all conflicts and indulging all permissible inferences in favor of the verdict, see id., the State has presented sufficient evidence to support a verdict that Defendant committed tampering with evidence under a theory of accomplice liability.
III. Conclusion
{55} We reverse Defendant’s convictions of conspiracy to commit armed robbery, armed robbery, felony murder, and felon in possession of a firearm, and remand for a new trial. We affirm Defendant’s conviction of tampering with evidence.
{56} IT IS SO ORDERED.
WE CONCUR: PETRA JIMENEZ MAES, Chief Justice, PAMELA B. MINZNER, and RICHARD C. BOSSON, Justices.
PATRICIO M. SERNA, Justice (concurring in part and dissenting in part).
. The State argues that Crawford does not apply to Defendant’s conviction of conspiracy, on the ground that Coley's declaration of a "jack move” in Defendant’s presence was one made in furtherance of a conspiracy and therefore not testimonial. See Crawford, 541 U.S. at -, 124 S.Ct. at 1367 (noting that the category of statements in furtherance of a conspiracy was an established hearsay exception by 1791, and that such statements are not testimonial). Because Coley’s declaration of a "jack move” is not testimonial under Crawford, the State argues, it was not erroneously admitted. However, the State does not account for the hearsay-within-hearsay problem: Coley’s declaration of a "jack move” appears within the broader narrative of Young’s statement to the police, and it is this statement, in its entirety, that Crawford prohibits. | [
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OPINION
BUSTAMANTE, Judge.
{1} Plaintiff appeals the order of the district court granting summary judgment in favor of Defendant. For the reasons that follow, we reverse.
BACKGROUND
{2} Plaintiff in this wrongful death action is Frances Solorzano, personal representative of Nelda Sue Garrett’s estate (Garrett) and guardian of Garrett’s minor children. Garrett was Defendant Frankie Bristow’s daughter. Plaintiffs claims arise from a sad incident where Garrett either fell or jumped from a van being driven by Defendant.
{3} Defendant was the only witness to the events leading to Garrett’s death. The facts in the record come from Defendant’s depositions and statements. Defendant gave Garrett a ride to Las Cruces, New Mexico from Alamogordo, New Mexico for a dentist appointment where Garrett had several teeth extracted. Garrett was “normal” on the trip to Las Cruces. After the dental procedure, Garrett was confused and disoriented and had a blank look on her face. Garrett did not respond to the receptionist about a follow-up appointment. Garrett was able to get into the van by herself. Part of the time, Garrett did not recognize Defendant. As Defendant drove back to Alamogordo, she became concerned that her daughter “might have had too much medication” or “was having a reaction to the medication.” Because of her concerns, Defendant decided to stop at a park — the Aguirre Springs area located about two miles off the road — to give Garrett a chance “to walk off whatever it was that the dentist had given her.” They stopped and walked around for about half an hour. While they were in the park, Garrett was “logical” or “coherent” twice, but, by the time they started back to the van, Garrett reverted to the prior state and did not appear to recognize her mother. Garrett walked “real fast” down the path back to the van, walking by her mother as if she were “a stranger in Hawaii.” Defendant was concerned. When Garrett reached the bottom of the path, it appeared that she did not recognize the van. Defendant recalled that when she unlocked the door and held it open, Garrett “didn’t know who [Defendant was].” After Garrett got into the van, Defendant had to fasten her seat belt for her. It appeared to Defendant that Garrett did not know what she was doing.
{4} Defendant then got back on the highway heading toward Alamogordo. She set the cruise control for 60 miles per hour and left it there until Garrett fell out of the van. Garrett was initially quiet and unresponsive to conversation. At some unspecified time after getting underway, Garrett made a loud “growling” sound and at the same time made a wide sweeping motion with her right hand. The sound and motion startled Defendant. Defendant asked “What’s the matter?” but Garrett did not respond. Within a short time after the sound and motion, Garrett unfastened her seat belt and started toward the back of the van and then sat back down. After sitting back down, Garrett opened the door and leaned out while sitting in the seat. Defendant started yelling, but Garrett did not respond. The van was too wide to allow Defendant to reach Garrett.
{5} It is unclear from the record what Defendant said or how long this first door-opening lasted. Defendant testified that the door did not shut after Garrett sat back down. After sitting back down, Garrett turned to the door again and this time stood on the step in the van and started “wiggling back and forth trying to get to the back of the door where she would fall out.” Garrett kept bumping against the door until she fell out. Defendant thought throughout that Garrett was getting sick and was trying to vomit outside. Defendant never applied the brakes or otherwise tried to slow the van. When asked why she did not slow down, Defendant stated that she was using the force of the wind to hold the door shut and was concerned that if she hit the brake, the door would open. The road at this point was straight and there was no other traffic.
{6} Defendant moved for summary judgment, arguing that Garrett had committed suicide and that she had no duty to prevent a suicide. Defendant presented Garrett’s death certificate and the report of the Office of the Medical Investigator as evidence of the suicide. The trial court granted summary judgment finding:
1. There is no genuine issue as to whether Nelda Sue Garrett committed suicide when she stepped out of the van being driven by Defendant.
2. There is no duty in law to prevent a suicide outside of a limited number of exceptions that do not apply to this case.
STANDARD OF REVIEW
{7} Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. We consider the facts in the light most “favorable to support a trial on the issues because the purpose of summary judgment is not to preclude a trial on the merits if a triable issue of fact exists.” Madsen v. Scott, 1999-NMSC-042, ¶ 7, 128 N.M. 255, 992 P.2d 268 (internal quotation marks and citation omitted). “[S]ummary judgment is not appropriate when the facts before the court are insufficiently developed or where further factual resolution is essential for determination of the central legal issues involved.” Brown v. Taylor, 120 N.M. 302, 307, 901 P.2d 720, 725 (1995) (internal quotation marks and citation omitted). We review a grant of summary judgment de novo. Self, 1998-NMSC-046, ¶ 6.
DISCUSSION
{8} This case raises several issues: (1) What is the legal standard for determining when a death is a suicide in New Mexico? (2) Is there a question of material fact as to whether Garrett committed suicide? (3) Did Defendant owe a duty of reasonable care to her passenger, under these circumstances? (4) And, if so, are there genuine issues of fact as to whether she breached that duty?
I. Suicide
{9} The district court determined there was no question of fact that Garrett committed suicide. It is not possible' to tell from the record what definition or standard the court applied. Defendant’s briefing in this Court and below does not attempt to devise a definition for suicide. Rather, Defendant simply assumes that Garrett’s death constituted suicide. If the district court adopted Defendant’s approach, it erred as we shall explain. In any event, we hold that there are questions of fact precluding summary judgment on the issue.
{10} New Mexico has not had occasion in the civil personal injury arena to articulate a standard for determining when a death may be labeled a suicide. We have no statutory definition, and the cases that do mention suicide eome from different legal settings. For example, in the workers’ compensation setting, there is a presumption against suicide. Suicide is an affirmative defense which defendants must prove. Neel v. State Distribs., Inc., 105 N.M. 359, 361, 732 P.2d 1382, 1384 (CtApp.1986). “This presumption, though not conclusive, is sufficient unless rebutted by substantial evidence, to support an award for compensation.” Medina v. N.M. Consol. Mining Co., 51 N.M. 493, 496, 188 P.2d 343, 345 (1947) (suggesting the kind of evidence necessary to rebut the presumption, including “domestic trouble” and “signs of worry”). In the life insurance contract setting, the language of the policy controls the definition of suicide. Typically, life insurance policies include clauses which specify that if a death is the result of a suicide, the insurer is not liable for the face amount of the policy. Estate of Galloway v. Guar. Income Life Ins. Co., 104 N.M. 627, 627, 725 P.2d 827, 827 (1986). At issue in Estate of Galloway was a life insurance policy that excluded liability “[i]f the insured commits suicide, while sane or insane.” Id. Affirming summary judgment in favor of the insurer, the Court noted the history behind this verbiage.
Many early cases have held that self-destruction while insane was not suicide within a suicide exclusion clause since it was deemed that there could be no suicide unless the person committing the self-destructive act could form a conscious intention to kill himself and carry out that act, realizing its moral and physical consequences. As a reaction to these holdings, insurers began to add to suicide exclusion clauses the phrase “sane or insane.”
Id. at 628, 725 P.2d at 828. The workers’ compensation cases demonstrate that intent is taken into account in distinguishing between accident and suicide,- while the insurance policy eases reveal that insurers have sought to remove knowing intent from the concept of suicide.
{11} The ease before us, of course, is not a workers’ compensation claim and does not involve an insurance policy definition. These opinions do, however, indicate that absent contractual provisions to the contrary, the deceased person’s state of mind is relevant in deciding whether a death is properly classified as a suicide. Other authorities confirm this view. For example, dictionary definitions require intention on the part of the actor, and awareness of the likely consequences of one’s voluntary acts. Black’s Law Dictionary defines suicide as “[s]elf-destruction; the deliberate termination of one’s own life.” Black’s Law Dictionary 1434 (6th ed. 1990). Webster’s Dictionary elaborates on the definition of suicide: “the deliberate and intentional destruction of his own life by a person of years of discretion and of sound mind.” Webster’s Unabridged International Dictionary 2286 (3rd ed. 1993).
{12} Similarly, Corpus Juris Secundum defines suicide in its “legal[ ]sense” to mean “self-destruction by a sane person, and the voluntary and intentional taking of one’s own life by ... a person of sound mind.” 83 C.J.S. Suicide § 2, at 718-19 (2000) (footnotes omitted). The American Jurisprudence encyclopedia defines suicide as the “voluntary and intentional taking of one’s own life by a sane person.” 40A Am.Jur.2d Homicide § 619 (1999).
{13} The definitions in these secondary authorities comport with eases which have dealt with the issue. Wallin v. Ins. Co. of N. Am., 268 Ark. 847, 596 S.W.2d 716, 718 (Ct. App.1980) (reversing a jury verdict in favor of an insurer because of the admission of improper evidence and noting that “[sjuicide is the intentional taking of one’s own life”); Ray v. Federated Guar. Life Ins. Co., 381 So.2d 847, 848 (La.Ct.App.1980) (holding that death caused by drowning in a bathtub was “accidental” within the meaning of a policy because the deceased was insane at the time of his death and did not “foresee the consequences of his actions”). In turn, these cases reflect the common law rule that to constitute suicide, “a person who takes his own life ‘must be of years of discretion, and in his senses.’ ” Wackwitz v. Roy, 244 Va. 60, 418 S.E.2d 861, 864-65 (1992) (quoting 5 William Blackstone, Commentaries *189); see also State v. Willis, 255 N.C. 473, 121 S.E.2d 854, 857 (1961) (holding that an “insane person” cannot commit the common law crime of attempted suicide); Bisenius v. Karns, 42 Wis.2d 42, 165 N.W.2d 377, 382 (1969) (defining suicide as the “voluntary and intentional taking of one’s own life by a sane person”).
{14} Distilling these strands, we define suicide as a voluntary, deliberate, and intentional self-destruction by someone of sound mind. While we do not believe it is necessary to recognize a presumption against suicide, we do believe that it is best treated as an affirmative defense in cases such as this, placing the burden of proof on the defendant to prove the fact of suicide. Contrary to Plaintiffs argument, Defendant adequately pled and briefed suicide as an affirmative defense.
{15} On motion for summary judgment, Defendant carried the burden of making a prima facie showing as to each element of the definition. That is, Defendant was required to show there was no question of material fact that Garrett acted voluntarily, deliberately, and intentionally while of sound mind. This she did not do. There was simply no evidence presented which can be deemed to conclusively show that Garrett acted voluntarily, deliberately, and intentionally or that she was even in her right mind. Defendant testified she never heard her daughter threaten or contemplate suicide. Defendant’s description of the events of the day cannot be seen to resolve the factual questions inherent in the definition of suicide. Quite the opposite, the record raises questions of fact concerning the state of Garrett’s mind after the tooth extractions and the extent of her ability to act voluntarily, deliberately, and intentionally, appreciating the potential consequences of her actions.
{16} To make a prima facie case on these questions, Defendant had the burden of at least presenting evidence explaining what caused Garrett’s behavior and the likely extent of confusion. Defendant did not do so. Defendant essentially asks that we determine Garrett’s actions constituted suicide because she fell from the vehicle without any intervention from anyone else. Just as we will not impose a presumption against suicide, we will not indulge one in favor of suicide as an explanation for Garrett’s behavior. Garrett’s state of mind, motivation, and intent are still subject to proof.
{17} We, of course, acknowledge that the death certificate listed the manner of death as “suicide.” Plaintiff argues that the death certificate was not properly admissible to prove the “manner” of death (suicide) as opposed to the “cause” of death (multiple injuries). Corlett v. Smith, 107 N.M. 707, 712, 763 P.2d 1172, 1177 (Ct.App.1988), does express skepticism as to the use of a death certificate as evidence of the manner of a death. We do not need to resolve the issue, however. Even if the certificate was properly considered by the district court, it cannot be deemed conclusive of the issue given the other evidence in the record about Garrett’s behavior. Further, the record does not reveal whether the medical investigator had the correct definition of suicide in mind when she filled in the certificate. As the person with the burden of production and proof on summary judgment, Defendant was required to demonstrate that the finding in the death certificate was based on the correct legal standard.
{18} Without conclusive evidence of Garrett’s intention or state of mind, Defendant failed to make a prima facie case of suicide, and the ultimate fact of whether Garrett’s death was an accident or suicide is clearly in dispute. The district court erred in granting summary judgment on the ground that Garrett committed suicide.
II. Duty of Ordinary Care
{19} On appeal, Defendant primarily argues that summary judgment was proper even if Garrett did commit suicide because Defendant owed no legal duty to her passenger to protect her from harming herself. At the district court level, however, Defendant focused on the legal effect of suicide and made no reference to the duty of ordinary care. Because the argument on appeal is different from that argued to the district court, we hesitate to respond. We choose to do so for the sake of completeness.
{20} Defendant’s argument is twofold. First, emphasizing the singular nature of the facts, Defendant rhetorically asks “What was I to do?” Defendant’s rhetorical response is that there was nothing she could do or be expected to do; therefore, she did not have any duty to do anything. Second, Defendant asks that we adopt a rule absolving drivers of responsibility for a passenger’s actions in a vehicle. Defendant cites Stephenson v. Led-better, 596 N.E.2d 1369 (Ind.1992) as her preferred approach. In Stephenson, a drunk passenger sitting on the side rail of the bed of a pickup traveling about 40 miles per hour fell to his death. Id. at 1370. Over a dissent, the court held as a matter of law that the driver’s failure to “stop or slow the truck and compel [the deceased], a competent (if drunk) adult passenger, to sit in a safer position” did not breach the duty of reasonable care to the passenger. Id. at 1372-73.
{21} We do not believe that Stephenson accurately represents the law in New Mexico. In this state, a negligence claim requires the existence of a duty from a defendant to a plaintiff, as well as breach of that duty which is the proximate cause and cause in fact of the plaintiffs damages. Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 6, 134 N.M. 43, 73 P.3d 181. Whether a duty exists is a question of law for the courts to decide. Schear v. Bd. of County Comm’rs, 101 N.M. 671, 672, 687 P.2d 728, 729 (1984). Foreseeability is a critical and essential component of New Mexico’s duty analysis because “no one is bound to guard against or take measures to avert that which he [or she] would not reasonably anticipate as likely to happen,” and because “[t]here can be no duty in relation to another person absent foreseeablity.” Herrera, 2003-NMSC-018, ¶20 (internal quotation marks and citations omitted). In this case, we must decide as a matter of law whether the possibility of harm was foreseeable, so as to impose a duty. Clearly, Defendant knew that Garrett was impaired. When Garrett got up out of her seat and moved around in the van, Defendant was on alert that some harm could come to her passenger. Then, when Garrett opened the door, there was the possibility that she would fall out. This possibility increased as Garrett wiggled back and forth trying to get to the back of the door where she ultimately fell out. Based on these facts, we hold that harm to Garrett was foreseeable and that the general law of reasonable care thus applies.
{22} In New Mexico, “[e]very person has a duty to exercise ordinary care for the safety of the person and the property of others.” UJI 13-1604 NMRA. In turn, the measure of this duty is ordinary care “in the light of all the surrounding circumstances.” UJI 13-1603 NMRA; see Hughes v. Walker, 78 N.M. 63, 65, 428 P.2d 37, 39 (1967) (applying duty of ordinary care in favor of car passenger). Whether a defendant breached her duty of care is a question of the reasonableness of her conduct. Knapp v. Fraternal Order of Eagles, 106 N.M. 11, 13, 738 P.2d 129, 131 (Ct.App.1987). As such, it is normally a fact question. Id. Rhetorical flourishes aside, we agree with Defendant that this presents a very strange fact pattern. We do not agree, however, that the strangeness of the situation allows us to decide the .case as a matter of law. It might well be that a jury will absolve Defendant of any responsibility. But, we believe that the jury should make the decision.
{23} Defendant relies on out-of-state cases containing statements indicating that it is unforeseeable as a matter of law that a person would jump out of a moving vehicle, see Turner v. D’Amico, 701 So.2d 236, 238 (La. Ct.App.1997), or that seatbelts are not intended to keep people from jumping out of a car, see DeMarco v. DeMarco, 274 N.J.Super. 257, 643 A.2d 1053, 1056 (Law Div.1992), but we do not believe that these cases are consistent with New Mexico law or appropriate authority under the unique facts of this case. The fact that out-of-state eases exist in which people have unexpectedly jumped from moving vehicles suggests that such events are not unforeseeable as a matter of law. Importantly, in this case, the facts indicate a person in an apparent drug-induced, impaired mental state, who was acting unpredictably, including opening the door of a fast-moving car. As we indicated above, we believe that responsibility on the basis of these strange facts is for the jury to decide.
{24} The parties have raised arguments concerning the admissibility and relevance of the fact that Garrett removed her seat belt before she fell out of the vehicle. In addition, the parties argue whether Restatement (Second) of Torts §§ 323 and 324 (1965) applies as a source of Defendant’s duty. We have not addressed these issues because they are premature and not necessary to our decision. The trial court issued its summary judgment on quite narrow grounds. We have dealt with those grounds and a closely related issue. The seat belt and Restatement issues are best dealt with in the first instance by the trial court as the evidence in the case is further developed, in particular with regard to the nature and source of Garrett’s described confused mental state.
CONCLUSION
{25} Because there are genuine factual questions regarding Garrett’s death and the performance of Defendant’s duty to exercise reasonable care, we reverse summary judgment and remand to the trial court.
{26} IT IS SO ORDERED.
WE CONCUR: LYNN PICKARD and CELIA FOY CASTILLO, Judges. | [
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OPINION
MINZNER, Justice.
{1} Defendant Ramon Paredez pleaded guilty to criminal sexual contact of a minor in the third degree, contrary to NMSA 1978, § 30-9-13(A)(2) (2001). After sentencing, Defendant filed a motion to withdraw his guilty plea on the basis he was not adequately informed of the immigration consequences of his plea. The district court entered an order denying his motion, which was affirmed by the Court of Appeals in a memorandum opinion. State v. Paredez, No. 24,082 (N.M.CtApp. Aug. 20, 2003). We granted certiorari pursuant to NMSA 1978, § 34-5-14(B) (1972) and Rule 12-502 NMRA 2004. In this opinion, we hold that the district court’s admonition to Defendant that his guilty plea “could” affect his immigration status was sufficient advice to satisfy federal due process and Rule 5-303(E)(5) NMRA 2004; however, Defendant’s attorney had an affirmative duty to determine his immigration status and provide him specific advice regarding the impact a guilty plea would have on his immigration status. A prima facie case of ineffective assistance of counsel is established by the appellate record; thus, we remand to the district court for an evidentiary hearing on Defendant’s claim.
I
{2} On October 30, 2002, Defendant was charged by information with criminal sexual contact of a minor thirteen to eighteen years of age. A plea agreement was entered on February 4, 2003, which the district court accepted. Defendant’s attorney advised the court at the plea hearing that his client was a permanent resident alien from Guatemala and that the attorney had advised him the plea “could” affect his immigration status. Before accepting the plea, the district court addressed Defendant and also informed him his plea “could” affect his status under immigration laws. On February 25, Defendant was sentenced to three years incarceration in the New Mexico Department of Corrections. Consistent with the plea agreement, he received a suspended sentence and was placed on supervised probation for a period of three years. Six days later, on March 3, Defendant filed a motion to withdraw his guilty plea alleging he was not fully informed as to the effect his plea would have on his immigration status. A hearing was held on the motion, after which the district court issued an order denying the motion. Defendant appealed.
{3} The Court of Appeals noted that the district court complied with Rule 5-303(E), which prohibits the district court from accepting a guilty plea without first informing the defendant that the conviction may affect his or her immigration or naturalization status. Paredez, No. 24,082, slip op. at 2. The Court rejected Defendant’s argument that the district court was required to provide a more specific explanation of the immigration consequences of Defendant’s guilty plea. Id. at 3. Furthermore, the Court stated that the record was insufficient to address on direct appeal the issue of ineffective assistance of counsel and refused to remand the case for an evidentiary hearing on the issue. Id. at 3-4.
{4} If Defendant’s guilty plea for criminal sexual contact of a minor stands, he almost certainly will be deported back to Guatemala. Under federal law, “[a]ny alien ... in and admitted to the United States shall, upon order of the Attorney General, be removed” if the alien is within a statutorily defined class of deportable aliens. 8 U.S.C. § 1227(a) (2000) (emphasis added). One class of deportable aliens includes those who are convicted of an “aggravated felony.” 8 U.S.C. § 1227(a)(2)(A)(iii). Criminal sexual contact of a minor is an “aggravated felony” as that term is used in § 1227. See 8 U.S.C. § 1101(a)(43)(A) (2000) (listing “murder, rape, or sexual abuse of a minor” as within the term). Furthermore, not only did Defendant’s plea render him deportable, he is ineligible for discretionary relief from deportation. See 8 U.S.C. § 1229b(a)(3) (2000) (“The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien ... has not been convicted of any aggravated felony.”) (emphasis added). Defendant was not informed by the district court of these consequences of his guilty plea. Also, the record reflects that Defendant’s attorney likewise may have failed to inform him that his guilty plea would result in his virtually automatic deportation. We now turn to whether the district court erred in refusing to allow Defendant to withdraw his plea.
II
{5} “A motion to withdraw a guilty plea is addressed to the sound discretion of the trial court, and we review the trial court’s denial of such a motion only for abuse of discretion.” State v. Garcia, 1996-NMSC-013, 121 N.M. 544, 546, 915 P.2d 300, 302. The district court abuses its discretion in denying a motion to withdraw a guilty plea “when the undisputed facts establish that the plea was not knowingly and voluntarily given.” Id. The relevant inquiry is whether Defendant’s plea was voluntary and knowing, which requires this Court to examine whether Defendant should have been informed that his guilty plea in this case almost certainly would result in his deportation, and if so, whether it was the responsibility of the district court or his defense attorney to inform him of that consequence.
A
{6} We first address the district court’s role in informing criminal defendants of the immigration consequences of a guilty plea. Whether a district court must advise a defendant of certain consequences of a guilty plea prior to accepting the plea is an issue of law that we review de novo. See State v. Moore, 2004-NMCA-035, ¶ 12, 135 N.M. 210, 86 P.3d 635. For the following reasons, we hold that the district court’s admonition to Defendant that his plea “could” have an effect on his immigration status was sufficient to satisfy both our Rule 5-303 and the Due Process Clause of the federal constitution. Defendant does not provide any reason for interpreting our state due process clause, N.M. Const, art. II, § 18, differently from its federal counterpart; therefore, we decline to address his argument under our state constitution. See Compton v. Lytle, 2003-NMSC-031, ¶ 23 n. 4, 134 N.M. 586, 81 P.3d 39.
{7} By entering a guilty plea, a criminal defendant waives a number of constitutional rights, including his or her privilege against compulsory self-incrimination, right to a jury trial, and right of confrontation. Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Therefore, the United States Supreme Court has held that these waivers “not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). Defendant contends that his plea was not voluntary or knowing because the district court informed him he “could” be deported as a consequence of his guilty plea, rather than advising him that deportation would automatically result from his plea.
{8} The procedures established in Rule 5-303 “are designed to ensure a guilty plea is made knowingly and voluntarily.” Garcia, 121 N.M. at 546, 915 P.2d at 302. In this case, the district court strictly complied with Rule 5-303, which provides:
E. Advice to defendant. The court shall not accept a plea of guilty, no contest or guilty but mentally ill without first, by addressing the defendant personally in open court, informing the defendant of and determining that the defendant understands the following:
(5) that, if the defendant is convicted of a crime, it may have an effect upon the defendant’s immigration or naturalization status.
We deem it advisable for the Rules of Criminal Procedure Committee to review the language of Rule 5-303 and consider whether the district court prior to accepting a defendant’s guilty plea must inquire into the immigration status of the defendant and affirmatively determine whether the defendant has been advised by his attorney of the immigration consequences of the plea. See Wash. Rev.Code § 10.40.200(2) (2002) (“Prior to acceptance of a plea of guilty ..., the court shall determine that the defendant has been advised of the following potential consequences of conviction for a defendant who is not a citizen of the United States: Deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.”) (emphasis added). However, we cannot conclude that Rule 5-303 as written required more of the district court than informing Defendant that the plea “could” affect his immigration status. We next consider whether the Due Process Clause of the federal constitution required the district court to have been more specific when informing Defendant of the immigration consequences of his guilty plea.
{9} Neither the Supreme Court nor the federal circuits have held that the trial court must inform defendants of all possible consequences flowing from a guilty plea. The trial court only has a duty to ensure that the defendant understands the “direct” consequences of the plea but is under no duty to advise the defendant of the plea’s “collateral” consequences. United States v. Russell, 686 F.2d 35, 38 (D.C.Cir.1982). Each federal circuit that has directly considered the issue has held that deportation is a collateral consequence of pleading guilty so that the trial court is not required to inform the defendant of the immigration consequences of his or her plea. El-Nobani v. United States, 287 F.3d 417, 421 (6th Cir.2002); United States v. Amador-Leal, 276 F.3d 511, 517 (9th Cir. 2002); United States v. Gonzalez, 202 F.3d 20, 27-28 (1st Cir.2000); United States v. Osiemi, 980 F.2d 344, 349 (5th Cir.1993); United States v. Montoya, 891 F.2d 1273, 1292-93 (7th Cir.1989); United States v. Romero-Vilca, 850 F.2d 177, 179 (3d Cir. 1988); United States v. Campbell, 778 F.2d 764, 767 (11th Cir.1985); Russell, 686 F.2d at 39; Michel v. United States, 507 F.2d 461, 464-66 (2d Cir.1974); Cuthrell v. Dir., Patuxent Inst., 475 F.2d 1364, 1366 (4th Cir. 1973). Furthermore, the remaining federal circuits that have not directly addressed the issue have signaled that they would reach the same holding. See Broomes v. Ashcroft, 358 F.3d 1251, 1257 n. 4 (10th Cir.2004) (citing with approval cases from sister circuits holding, that the trial court is under no duty to inform defendants of the immigration consequences of their guilty pleas); Kandiel v. United States, 964 F.2d 794, 796 (8th Cir. 1992) (same).
{10} The circuit courts have reached their conclusions notwithstanding relatively recent federal changes in the law that make deportation virtually automatic for certain offenses. In Gonzalez, the First Circuit recently stated:
What renders [a] plea’s immigration effects “collateral” is not that they arise “virtually by operation of law,” but the fact that deportation is “not the sentence of the court which accept[s] the plea but of another agency over which the trial judge has no control and for which he [or she] has no responsibility.”
202 F.3d at 27 (quoted authority omitted); accord El-Nobani, 287 F.3d at 421 (“[I]t is clear that deportation is not within the control and responsibility of the district court, and hence, deportation is collateral to a conviction.”). Thus, the federal circuits generally agree that the Due Process Clause of the federal constitution does not require the trial court judge to even inform the defendant that his or her plea “may” have deportation consequences.
{11} If the district court’s silence regarding the immigration consequences of a defendant’s guilty plea does not violate that defendant’s federal constitutional right to due process, then it would be illogical for this Court to conclude that the district court’s admonition to Defendant in this case that his plea “could” affect his immigration status was constitutionally defective. Accordingly, while it certainly would have been prudent for the district court to have been more specific in its admonition to Defendant or to inquire into Defendant’s understanding of the deportation consequences of his plea, we hold that the district court was not constitutionally required to advise Defendant that his guilty plea to criminal sexual contact of a minor almost certainly would result in his deportation.
B
{12} Our conclusion that the district court did not err in its admonition to the Defendant does not mean that Defendant’s attorney was relieved from informing him that he almost certainly would be deported if his guilty plea was accepted by the court. In fact, “[d]efense counsel is in a much better position to ascertain the personal circumstances of his [or her] client so as to determine what indirect consequences the guilty plea may trigger.” Michel, 507 F.2d at 466. As the California Supreme Court recently noted, a sufficient advisement from the trial court regarding the immigration consequences of a defendant’s plea “does not entail that [the defendant] has received effective assistance of counsel in evaluating or responding to such advisements.” In re Resendiz, 25 Cal.4th 230, 105 Cal.Rptr.2d 431, 19 P.3d 1171, 1178 (2001). Therefore, we now address the role of criminal defense attorneys in informing their clients of the immigration consequences of a guilty plea.
{13} The United States Supreme Court has stated that “[w]here ... a defendant is represented by counsel during the plea process and enters his [or her] plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel’s advice ‘was within the range of competence demanded of attorneys in criminal cases.’ ” Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)). The two-part standard delineated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), applies to ineffective-assistance claims arising out of a plea agreement. Hill, 474 U.S. at 58, 106 S.Ct. 366. To establish ineffective assistance of counsel, a defendant must show: (1) “counsel’s performance was deficient,” and (2) “the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052.
{14} As for the deficient performance prong of the Strickland test, the inquiry is whether the “counsel’s representation fell below an objective standard of reasonableness.” 466 U.S. at 688, 104 S.Ct. 2052. This inquiry requires us to “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. at 689, 104 S.Ct. 2052 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)).
{15} We agree with those jurisdictions that have held that “an affirmative misrepresentation by counsel as to the deportation consequences of a guilty plea is today objectively unreasonable.” United States v. Couto, 311 F.3d 179, 188 (2d Cir. 2002); accord State v. Rojas-Martinez, 73 P.3d 967, 970 (Utah Ct.App.2003), cert. granted, 80 P.3d 152 (Utah 2003). If a defendant’s attorney informs him or her that deportation will not be a consequence of a guilty plea when the guilty plea renders deportation a possibility, then the attorney’s performance would be deficient. Also, when a defendant’s guilty plea almost certainly will result in deportation, an attorney’s advice to the client that he or she “could” or “might” be deported would be misleading and thus deficient. As the Oregon Court of Appeals recently noted while relying on the state constitutional protection of the right to counsel:
[S]tating that a person “may” be subject to deportation implies there is some chance, potentially a good chance, that the person will not be deported. That is an incomplete and therefore inaccurate statement if made to an alien considering whether to plead guilty to an aggravated felony.
Gonzalez v. State, 191 Or.App. 587, 83 P.3d 921, 925 (2004); accord Rojas-Martinez, 73 P.3d at 970 (addressing the advice that conviction of the aggravated felony of sexual abuse of a minor “might or might not” result in deportation).
{16} We go one step further, though, and hold that an attorney’s non-advice to an alien defendant on the immigration consequences of a guilty plea would also be deficient performance. In reaching this holding we recognize that the Tenth Circuit has held “deportation remains a collateral consequence of a criminal conviction, and counsel’s failure to advise a criminal defendant of its possibility does not result in a Sixth Amendment deprivation.” Broomes, 358 F.3d at 1257. We refuse to draw a distinction between misadvice and non-advice; therefore, we depart from the Tenth Circuit’s holding for three reasons.
{17} First, in many cases, there will only be a tenuous distinction between the two. Whether an attorney provides no advice regarding immigration consequences or general advice that a guilty plea “could,” “may,” or “might” have an effect on immigration status, the consequence is the same: the defendant did not receive information sufficient to make an informed decision to plead guilty. Second, distinguishing between misadvice and non-advice would “naturally create a chilling effect on the attorney’s decision to offer advice,” because if the attorney’s advice regarding immigration consequences is incorrect, the attorney’s representation may be deemed “ineffective.” John J. Francis, Failure to Advise Non-Citizens of Immigration Consequences of Criminal Convictions: Should This Be Grounds to Withdraw a Guilty Plea?, 36 U. Mich. J.L. Reform 691, 726 (2003). Third, not requiring the attorney to specifically advise the defendant of the immigration consequences of pleading guilty would “placet ] an affirmative duty to discern complex legal issues on a class of clients least able to handle that duty.” Id.; see also In re Alvernaz, 2 Cal.4th 924, 8 Cal.Rptr.2d 713, 830 P.2d 747, 753 (1992) (“Although [the decision to plead guilty] ultimately is one made by the defendant, it is the attorney, not the client, who is particularly qualified to make an informed evaluation of a proffered plea bargain.”).
{18} Deportation can often be the harshest consequence of a non-citizen criminal defendant’s guilty plea, so that “in many misdemeanor and low-level felony cases ... [he or she] is usually much more concerned about immigration consequences than about the term of imprisonment.” Jennifer Welch, Comment, Defending Against Deportation: Equipping Public Defenders to Represent Noncitizens Effectively, 92 Cal. L.Rev. 541, 545 (2004). The American Bar Association has recognized as much by stating that “it may well be that many clients’ greatest potential difficulty, and greatest priority, will be the immigration consequences of a conviction.” ABA Standards for Criminal Justice: Guilty Pleas § 14-3.2 cmt., at 127 (3d ed.1999). Therefore, under the ABA Standards for Criminal Justice, “defense counsel should determine and advise the defendant, sufficiently in advance of the entry of any plea, as to the possible collateral consequences that might ensue from entry of the contemplated plea.” Id. § 14-3.2(f).
{19} We hold that criminal defense attorneys are obligated to determine the immigration status of their clients. If a client is a non-citizen, the attorney must advise that client of the specific immigration consequences of pleading guilty, including whether deportation would be virtually certain. Proper advice will allow the defendant to make a knowing and voluntary decision to plead guilty. Furthermore, requiring the attorney to give such advice is consistent with the spirit of Rule 5-303(E)(5), which prohibits the district court from accepting a guilty plea without first determining that the defendant has an understanding of the immigration consequences of the plea. An attorney’s failure to provide the required advice regarding immigration consequences will be ineffective assistance of counsel if the defendant suffers prejudice by the attorney’s omission.
{20} As for the prejudice prong of the Strickland test, the inquiry is “whether counsel’s constitutionally ineffective performance affected the outcome of the plea process.” Hill, 474 U.S. at 59, 106 S.Ct. 366. “In other words ... the defendant must show that there is a reasonable probability that, but for counsel’s errors, he [or she] would not have pleaded guilty and would have insisted on going to trial.” Id. In this case, Defendant must show “he would not have entered into the plea agreement if he had been given constitutionally adequate advice about the effect that his guilty plea would have on his immigration status.” Gonzalez, 83 P.3d at 925; accord In re Resendiz, 105 Cal.Rptr.2d 431, 19 P.3d at 1187.
{21} The record on appeal contains the following statement by Defendant’s attorney at the plea hearing: “[M]y client is ... an alien from Guatemala, and I have advised him that the plea agreement, as he has approved, could affect his status as an immigrant.” There is a strong inference to be drawn from this statement that Defendant’s attorney failed to advise him that he almost certainly would be deported if the district court accepted his plea agreement. It also would be logical to infer from the fact that Defendant filed a motion to withdraw his guilty plea only six days after he was sentenced that Defendant would not have plead ed guilty if he had known beforehand of this dire consequence. However, we cannot conclusively determine from the facts in the appellate record that the defense attorney failed in his duty to advise Defendant of the immigration consequences of pleading guilty to criminal sexual contact of a minor or that Defendant would not have pleaded guilty to that offense if he had been given adequate advice.
{22} In past eases, we have held when the record does not contain all the facts necessary for a full determination of the issue, “an ineffective assistance of counsel claim is more properly brought through a habeas corpus petition, although an appellate court may remand a ease for an evidentiary hearing if the defendant makes a prima facie case of ineffective assistance.” State v. Roybal, 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61. “Such a prima facie case is not made when a plausible, rational strategy or tactic can explain the conduct of defense counsel.” State v. Swavola, 114 N.M. 472, 475, 840 P.2d 1238, 1241 (Ct.App.1992). In this case, Defendant received substantial benefit from his plea agreement he received a suspended sentence and was placed on probation. It is conceivable that a non-citizen might opt to plead guilty and accept deportation to avoid serving a prison sentence, rather than face the possibility of both incarceration and deportation. A defense attorney could rationally advise the client to accept this type of plea agreement. However, we can conceive of no tactical reason for an attorney’s failure to inform the client that accepting the plea almost certainly would result in the client’s deportation. The record indicates that there is a distinct possibility that Defendant’s attorney failed to adequately inform him of the immigration consequences of his plea, and if Defendant had been properly advised, he would not have pleaded guilty. Thus, we believe Defendant has established a prima facie case of ineffective assistance of counsel.
{23} Furthermore, in this case, habeas corpus would not be a viable alternative to remand. Once Defendant has exhausted his direct appeal, he could be immediately deported to Guatemala. See 8 U.S.C. § 1229(d)(1) (2000) (“In the case of an alien who is convicted of an offense which makes the alien deportable, the Attorney General shall begin any removal proceeding as expeditiously as possible after the date of the conviction.”); Montilla v. INS, 926 F.2d 162, 164 (2d Cir.1991) (stating that “conviction is considered final and a basis for deportation when appellate review of the judgment not including collateral attacks has become final”).
{24} For these reasons, we conclude it is appropriate to remand to the district court for an evidentiary hearing on Defendant’s ineffective assistance of counsel claim. At the evidentiary hearing, Defendant may present evidence supporting his claim. After applying the standards articulated in this opinion, if the district court finds that Defendant in fact received ineffective assistance of counsel, then Defendant must be allowed to withdraw his guilty plea. The court shall retain jurisdiction over Defendant until his appeals have been exhausted.
Ill
{25} We hold in this case that the district court fulfilled its duty in informing Defendant that his guilty plea “could” affect his immigration status, but Defendant’s attorney had an affirmative duty to determine his immigration status and advise him that he almost certainly would be deported if he pleaded guilty to criminal sexual contact of a minor. The facts in the appellate record are insufficient for this Court to conclude that Defendant received ineffective assistance of counsel. However, the appellate record establishes a prima facie case of ineffective assistance; thus, we remand to the district court for an evidentiary hearing on the matter.
{26} IT IS SO ORDERED.
WE CONCUR: PETRA JIMENEZ MAES, Chief Justice, PATRICIO M. SERNA, RICHARD C. BOSSON, and EDWARD L. CHÁVEZ, Justices. | [
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ZINN, Justice.
The board of county commissioners of Quay County instituted proceedings to condemn a right of way for road purposes across lands belonging to the appellant. He was allowed $37.20 damages, to which allowance the appellant objected. By stipulation it was agreed to vacate the allowance and permit a new appraisal. The new apjjraisal allowed the appellant damages in the sum of $375. An order was entered May 28, 1931, approving_and confirming the appraisal, and judgment was rendei’ed agaiixst the appellee and in favor of the appellant in said sum. On June 16, 1931, the appellee filed a motion to vacate said judgment, and prayed to have the original appraisement confirmed and approved, and on June 22, 1931, the motion was denied and an order of the court entered accordingly. On July 25, 1931, the appellee filed another motion to'vacate the final judgment and to have the original appraisement confirmed and approved, and in support thereof alleged that the sum of $375 damages assessed by the board of appraisers last named is unconscionable, excessive, unreasonable, unjust, and inequitable, being in substance the allegations in support of the original motion to vacate, which last motion was on the same day sustained by the court, and an order entered accordingly, .to which order the appellant excepted, and from which the appellant brings the case here for review.
In this case, when the appellant objected to the $37.20 award, a stipulation was entered into by the appellant and the appellee providing that the court could make an order setting aside the original award, and the appellant could recommend the xxame of one person, the appellee another, and the two xxamed would jointly recommend a third, all three must then be approved by the court, and the three persons so designated would be appoixxtcd by the court as commissioners to appraise and assess the damages sustained by the appellant, and if such three names so selected and recommended be not designated by the donrt, then three other suitable qualified and competent persons were to be selected by the parties to act as appraisers. (ÁU parties agreed that they would accept the award by the xxew commissioners and that a judgment should be entered for the award as made by the commissioners, s We assume that the commissioners were selected as stipulated, and judgment was duly entered upon their report.
The only error assigned by appellant is that the court on July 25, 1931, could not set aside the judgment rendered on May 27, 1931, for the reason that it had lost jurisdiction of the same.
It is contended by the appellee that the appellant failed to object to the court hearing the motion filed July 25th, and that the appellant did not point out to the court below the error which the appellant now urges the trial court did make, and that the appellant cannot raise such error in this court for the first time.
The rule is clear unless the error complained of has been first called to the attention of the trial court, and objections first made there pointing to the error about to be made, that we will not examine the record; but to this rule is a well-recognized exception, which is to the effect that the court will examine the record and pass upon a jurisdictional question when first raised on appeal, which is the question in this case. Fullen v. Fullen, 21 N. M. 212, 153 P. 294; Baca v. Perea, 25 N. M. 442, 184 P. 482.
The appellee also urges this court to sustain the order of the trial court vacating / the final judgment because the trial court, being a court of general jurisdiction, has inherent power to vacate its judgments rendered by consent or by confession for an indefinite period except as such power be limited by statute, and also that the judgment in this action does not come within the provisions of Comp. St. 1929, § 105-801 because it was not rendered in a case tried pursuant to the provisions of Comp. St. 1929, § 105-801, and there is no statutory limitation upon the power of the court to vacate this judgment.
This contention is without merit. Section 105-801 embraces and is applicable to all final judgments unless by statute otherwise excepted. Judgments by confession or consent are not excepted by statute.
That portion of Comp. St. 1929, § 105-801, applicable here, is as follows: “JPinal judgments and deerees, entered by district courts in all eases tried pursuant to the provisions of this section shall remain under the control of such courts for a period of thirty days after the entry thereof, and for such further time as may be necessary to enable the court to pass upon and dispose of any motion which may have been filed within such period, directed against such judgment; Provided, that if the court shall fail to rule upon such motion within thirty days after the filing thereof, such failure to rule shall be deemed a denial thereof.”
That there is no logic to appellees’ contention that the judgment is one not rendered on a case “tried” within the meaning of section 105-801, is easily demonstrated. Comp. St. 1929, § 105-808, defines the term “trial” as follows: “A trial is the judicial examination of the issues between the parties, whether they be issues of law or of fact.”
The Century Dictionary defines “trial” as follows: “The judicial investigation and determination of the issues between parties; that part of a litigation which consists in the examination by the court of the point, the hearing of the evidence, if any, and the de termination of the controversy or final submission of the cause for such determination.”
While the word “trial” is a noun, the word “tried,” though a verb, is used in the statute involved in this case in the same sense. Phillips v. Vessells, 2 W. W. Harr. 490, 126 A. 51.
That there was a judicial examination of the issues both of law and fact as made up by the pleadings cannot be questioned, and we hold here that the case was tried and a final judgment within the meaning of section 105-801 was rendered on the issues by the trial court.
We are then brought to a determination of whether or not the trial court on July 25, 1931, still had jurisdiction to vacate the ^judgment entered on May 28, 1931.
Before the court on July 25, 1931. could regularly vacate the final judgment theretofore rendered, the same must come within certain well-defined and established classifications, otherwise the trial court lost jurisdiction.
Having held that it is a judgment within the meaning of Comp. St. 1929, § 105-801, it necessarily follows that it either must be a judgment which the court can vacate in its ■discretion as provided by section 105-801, or a default judgment to bring it within the provisions of section 105-S43, or an irregularly entered judgment to come within section 105-846, or a judgment which equity will vacate and set aside because of fraud, collusion, or other grounds, to correct which equity will extend its protective arm.
That the judgment does not come within the provisions of Comp. St. 1929, § 105-843, permitting the trial court for good cause shown to vaca’te default judgments is apparent, because this judgment was not a judgment rendered toy default, and not coming within this exception, the appellee contends that it comes within the other three classifications.
After contending that the judgment did not come within section 105-801, either because it is a judgment by confession or consent or because it was not “tried” within the meaning of said section 105-801, the appellee attempts to keep the judgment within section 105-801, by contending that if the court did fall into error in vacating the judgment on the 25th day of July, 1931, the action should be affirmed by this court because the trial court committed error against the appellee when he refused to vacate such judgment on the 22d day of June, 1931, and we should vacate the judgment, the result of which would leave the parties in the same situation as though the actions of the trial court in vacating the judgment were affirmed.
The appellee here is apparently seeking the aid of this court to sustain the court’s action under rule XV, § 2, of the Rules of Appellate Procedure.
Whether the court was in error on June 22, 1931, when it refused to vacate the judgment, we are unable to determine from the record before us. It was a matter solely within the discretion of the court, and the appellee failed to submit any evidence to the court to move the court’s discretion in their favor, and from the barren motion and order we can find no abuse of discretion. The appellee bases his claim of error in the court’s refusal to sustain the first motion to vacate as an abuse of discretion on the fact that the final award was more than ten times the amount of the original award. The ratio between the final judgment and the original award standing alone indicates nothing.
In this situation we cannot aid the appellee. The trial court did not err on June 22, 1931, in denying the appellee’s motion filed June 16, 1931.
The appellee then attempts to sustain the court’s action and keep the same within section 105-801 by contending that the motion sustained on July 25th was substantially the same motion overruled on June 22d, and that said overruled motion was filed within thirty days, and the delay of the trial court in sustaining the same is within the statute, and the order of June 22d may be disregarded.
With this contention we cannot agree. The first motion to vacate the judgment was overruled. If the same had not been overruled, the same having been filed on June 16, 1931, the order of the court on July 25, 1931, could not apply in this instance, and would be void, because Comp. St. 1929 § 105-801, specifically provides that if the court shall fail to rule upon such motion within thirty' days after the filing thereof, such failure to rule shall be deemed a denial thereof.
Orderly procedure cannot permit the refiling of a motion to vacate when the same motion was once denied, at a date beyond the time permitted by statute, and then permit the subsequent motion to relate back to and be considered as an amended original motion in order to bring the same within the statutory time when such motion can be filed, as the appellee urges here; were it not so a judgment could never be considered final because of such a vexatious procedure.
The appellee then contends that the judgment could be vacated for irregularity within the provisions of section 105-846, in that the judgment was supposedly rendered upon a stipulation, which stipulation provided that commissioners should make an appraisal as provided by law, and no appraisal as provided by law was made by such commissioners, and therefore the judgment was wholly without foundation and was voidable, if not void, and was irregular.
The record in this case shows that the three commissioners appointed by the court did make a return under oath, stating that they were appointed by the court to assess the damages which the appellant may have sustained by reason of the appropriation of his land for the purpose of a right of way for a highway, and that having viewed the premises appropriated by the plaintiff for a right of way, assess the damages to the defendant in the sum of $375.
The land sought to be condemned by the appellee is described specifically in the complaint filed in this action, and relates to the instant proceeding and none other. Comp. St. 1929, § 43-103, does not require a description of the real estate in the commissioners’ report except where more than one owner is included in the petition to condemn, then the damages should he stated separately, together with a specific description of the property for which such damages are assessed. That is proper, so that each defendant would know specifically what portion of his property was being condemned, and the amount of damages assessed, so that proper objections can be made. No one was misled here, least of all the appellees. A nicety of pleading might include a description of the property viewed, the date when the same was viewed, and the other details which the appellee contends should have been incorporated in the commissioners’ report. However, it clearly is not an irregularity within the meaning of section 105-846.
We next come to the other proposition presented by the appellee to sustain the court’s jurisdiction to vacate the judgment, contending that the judgment comes within the ruling of this court in the case of Kerr v. Southwest Fluorite Co. et al., 35 N. M. 232, 294 P. 324, where we held that statutes limiting time for opening or vacating final judgments do not apply to eases of extrinsic fraud or collusion.
The basis of this contention is that the final award was ten times as touch as the original award, and this disparity is so grossly excessive, unreasonable, unjust, inequitable, and unconscionable as to raise a presumption of extrinsic fraud.
That the last award is ten times as much as the first award is not indicative of the claim made by appellee that the final judgment was unreasonable and excessive, without evidence of the value of the land sought to be condemned and taken by the county. It would be as logical to conclude that the original assessment of $37.20 was unjust.
There is nothing in the record to show that the amount is excessive, unreasonable, unjust, unconscionable, and inequitable. The appellant could as logically contend that the $37.20 award was so small, unreasonable, unjust, unconscionable, and inequitable to amount to confiscation. Without proof the terms “excessive,” “unreasonable,” “unjust,” “unconscionable,” and “inequitable” are here empty words and conclusions of the pleader.
The record fails to show that.W. B. Rector, H. K. Grubbs, and Isaac Stockett, the appraisers chosen and approved pursuant to the stipulation of the parties, acted fraudulently or were in collusion with the appellant, or in any other manner violated their oath. The parties herein stipulated they would accept the award made by the new commissioners.- The record does not disclose that the commissioners so appointed were not appointed in accordance with the stipulation, nor does the record show anything to indicate, any unfairness on the part' of'the commissioners appointed pursuant to the stipulation. The two awards standing alone are naked of any inference of wrongdoing. The mere disparity in amount is of itself not indicative of any extrinsic fraud.
The record does not disclose fraud, mistake, or other equitable grounds justifying the interposition of a court of equity to vacate, a judgment regularly rendered.
The appellee urges that every presumption should be indulged in favor of the correctness and regularity of the decision of the trial court. Sandoval v. Unknown Heirs, 25 N. M. 536, 185 P. 282; Cassell Motor Co. v. Gonzales, 32 N. M. 259, 255 P. 636; Street v. Smith, 15 N. M. 95, 103 P. 644; Territory v. Herrera, 11 N. M. 129, page 141, 66 P. 523; Witt v. Cuneod, 9 N. M. 143, page 145, 50 P. 328; Sloan v. Territory, 6 N. M. 80, 27 P. 416.
The order appealed from merely recites that all parties appeared, that the court considered the motion and was fully advised in the premises, and decreed that the judgment, report of the appraisers, and the stipulation be set aside, to which decree the defendant excepted.
There is a remote probability that the court vacated the judgment, the report of the appraisers, and the stipulation because it was inequitable, which might mean that the proceedings had were not in accord with the principles of equity, which might mean that they were fraudulent, or collusive, and if so, the trial court had unquestioned power to vacate them. But the motion preceding the judgment and the appellees’ theory as urged in its brief is based solely on the amount of the award, and the difference in the two awards is not proof of extrinsic fraud.
When the court on June 22,1931, overruled the motion to vacate the judgment, the question was at an end, and the judgment had passed from the jurisdiction of the lower court.
As this court recently said in the case of Ealy v. McGahen, 37 N. M. 246, 21 P.(2d) 84, page 87, that; “Final judgments cannot be set aside under any and all pretexts or claims. When a claim or demand ripens into a regular and valid judgment, it becomes an established right which must be protected not only by the court which rendered the-judgment, but by all courts. * * * Public policy requires that there be an end to-litigation and that rights once established by a final judgment shall not again be litigated in any subsequent proceeding.”
When the court on June 22,1931, overruled the motion filed June 16, 1931, it had lost jurisdiction in this instance to again entertain the motion filed July 25, 1931, and it committed error on July 25, 1931, in sustaining; the motion filed July 25, 1931, for which the cause must be reversed and remanded, with instructions to deny the appellees’ motion to vacate and to reinstate the final judgment entered for appellant.
It is so ordered.
WATSON, O. J., and SADLER, and BICKLEY, JJ., concur. | [
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SADLER, Justice.
This is the second appearance of this case in the Supreme Court. See 35 N. M. 353, 298 P. 661, for former opinion. It was an action to recover damages for breach of partido contract under which a flock of sheep had been delivered by defendant into the care and possession of plaintiff, who is again appellee before us. The defendant claiming violations of the partido by plaintiff sought to justify his act in repossessing the sheep and himself claimed damages by cross-complaint.
The first trial resulted in a verdict for plaintiff in the sum of $2,261.30 upon which judgment was entered. An appeal to this court resulted in the award of a new trial. At the new trial a second verdict for plaintiff in the reduced sum of $1,000 followed, and from the judgment entered thereon this appeal is prosecuted.
The defendant (appellant) devotes almost his entire brief to claimed error on the part of the trial court in declining to dismiss plaintiff’s complaint or to direet a verdict in favor of defendant, interposed at the close of plaintiff’s case in chief. The ground urged in support of each motion was that it appeared by the evidence that plaintiff was no longer the real party in interest, having assigned his cause of action to his attorney, George W. Prichard, Esquire, and to his nephew, Frank Salazar.
The facts regarding the claimed assignment were developed in testimony before the court out of the presence of the jury after plaintiff had rested. The defendant called plaintiff to the stand and proved the existence of a written assignment by plaintiff to ■the assignees named of the judgment first recovered, executed within a day or two following'its rendition and before the allowance of any appeal therefrom.
The plaintiff countered with his own testimony and that of his attorney tending to show that the -assignment was merely, to secure his attorney and plaintiff’s nephew in certain indebtednesses then owing them, to the attorney for services rendered in this and other matters, and to the nephew on other accounts, the surplus, if any, to be paid over to the plaintiff; that it was an assignment of the judgment only, not intended to pass the cause of action to the assignees, and, at least, so far as the attorney and the plaintiff were concerned, had been considered mutually rescinded since the reversal of the judgment which was the subject of the assignment.
The defendant is in no position to complain of the court’s rpling upon his two motions directed to this point. As noted, all of the facts bearing upon the subject were fully developed at the close of plaintiff’s case in chief and before defendant had introduced any evidence on the merits. When the facts were thus disclosed, counsel for defendant, before proceeding with the merits of his defense, invoked the trial court’s ruling on the sufficiency of the matter adduced in abatement of the action. The ruling was adverse to him. Two courses were then thrown open, viz., either to stand upon the ruling and abide the result, subject to his right of review ; or waive the ruling and take up the merits. He chose the latter course, perhaps not conscious that he was making an election, but nevertheless doing so just as effectively in law by his course of action as though .intended, and may not now complain on account thereof. 1 G. J., Abatement and Revival, § 599; Patton v. Walker, 35 N. M. 468, 1 P.(2d) 566.
The author of the text in 1 O. J. 273 thus states the rule, to wit: “Where a plea or other objection in abatement is overruled, defendant must stand by it if he would take advantage of the objection, and he waives it if he pleads in bar or otherwise appears to the merits.”
Error is néxt predicated upon the court’s refusal of certain instructions requested by the defendant. Two of the facts most vigorously contested in the evidence at the trial were whether plaintiff had furnished proper pasturage for the sheep, and whether he had permitted them improperly to intermingle with other sheep. It was covenanted by plaintiff in the contract that he would “carefully herd, graze, feed, shelter * * * and in all respects properly care for the said sheep and the products thereof, in such a manner as a prudent sheep owner would care for his sheep.” Also, “that the said party of the second part (plaintiff) shall not during the term of this contract, have any other sheep than those covered by this contract in his care or custody, either on rent or shares, or otherwise.”
After quoting these contract provisions in paragraph 11 of its general charge, the court instructed the jury that before plaintiff could prevail the jury “must "be satisfied by a preponderance of the evidence that he has complied faithfully, substantially and reasonably with his undertakings as set forth in said paragraphs First and Fifth of the contract as above set forth.” And by paragraph 13 of the general charge that:
“If up to and on the 14th of March, 1929, the plaintiff had not faithfully, substantially and reasonably complied with his said undertaking, then by the terms of paragraph sixth of the said contract, set forth above, it was optional on the part of the defendant to terminate the contract,” etc.
The requested instruction dealing with this phase of the contract, after reciting the un dertaking, states: “If, therefore, you believe from the evidence in this case that the plaintiff did not take good care of said sheep, nor provide them with feed, good grazing ground, pasture or shelter, so that they were in danger of dying or depreciating in value or in their increase, then you will find the defendant was justified in taking them from the plaintiff, and if you so believe, you will find the issues herein in fav.or of the defendant.”
It is to be observed that the standard of care required of plaintiff, in so far as want of such care might afford grounds for rescission, was to look after the sheep “in such a manner as a prudent sheep owner would care for his sheep.” It was issuable'at the trial whether the range furnished by plaintiff was not as good as that of other sheepmen in that vicinity and whether the condition of these sheep at the time they were repossessed did not compare favorably with those of other sheepmen in that section of the country. It also appeared from plaintiff’s testimony that he had just made purchases of feed for the flock to begin feeding, when the sheep were retaken.
The requested instruction wholly ignored performance of these covenants within the standard of care set by the contract. If the plaintiff failed “to provide them with feed,” defendant was to recover, notwithstanding a prudent sheepman in the care of his own sheep might not have planned to begin feeding earlier than did plaintiff. If he furnished such pasturage for the number of sheep involved as a prudent sheepman in the care of his own sheep would supply, considering range conditions, there was performance within the contract, although the requested instruction was not so qualified.
The given instruction upon this subject although somewhat more general than that requested, within its language necessarily limits the jury in its consideration of the evidence to the standard of care fixed by the contract. No specific objection was taken to the given instruction, and the one requested being improper there was ho error in refusing it.
Upon the issue whether plaintiff had violated the covenant against having other sheep in his care or ■ custody, “on rent or shares, or otherwise,” it appeared that plaintiff’s range was adjoined by the lands of a neighboring sheepman between whose holdings there was no fence; that on occasions the sheep of one or the other would cross the line and intermingle. Plaintiff testified that such intermingling was without his consent. At the time defendant repossessed the sheep they were so intermingled in plaintiff’s pasture. The requested instruction touching this issue, as we interpret it, attempting no definition of “care or custody” as used in the contract, would in effect have charged the jury as a matter of law that the occasional intermingling under circumstances testified to by’ plaintiff was a breach of the contract. It could not be said to be such as a matter of law. We think there was no error in refusing this requested instruction.
The court’s refusal of other requested instructions is also complained of, but a care ful consideration of the argument under these points fails to convince us of merit in the contentions. The judgment appealed from will therefore be affirmed, and the cause remanded, with directions to the lower court to render judgment in favor of plaintiff against the sureties on the supersedeas bond for the amount of the judgment appealed from and for plaintiff’s costs.
It is so ordered.
WATSON, C. J., and HUDSPETH, RICH-LEY, and ZINN, JJ., concur. | [
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WATSON, Chief Justice.
The information charged Gregorio Fernandez, together with Paul Mares, John Dane, and Simon Vega, with having conspired with Manuel Valencia, to rob the Bond-Sargent store at Grants. Mares and Dane pleaded guilty, Vega and .Fernandez were convicted, and the latter has appealed.
Pursuant-to the alleged conspiracy, Mares, Dane, and Vega, together with Valencia and one Rucker, actually made an armed assault upon the store. Rucker was the apparent leader. The officers, warned in advance, were in readiness in the store when the bandits entered. A gun fight ensued in which Rucker was killed, and the other four were wounded, Valencia fatally.
Appellant was not present at the overt act. He was arrested two or three miles outside of the village, where he was waiting with a car. His conviction was on the theory that his part in the conspiracy was to aid in the escape.
The first contention arises upon the following record; the witness being the sheriff of Valencia county, and the questioner the district attorney: -
“Q. What I want you to give to the jury is an idea as — if he can — you testified you saw these men pass the window and enter the store. I want to know how much time elapsed from the moment they entered the store until the shooting stopped. A. I wouldn’t say the time but it went so rapidly I believe it didn’t take over three or four minutes. * * *
“Q. What happened to Manuel Valencia in these three or four minutes? A. Manuel Valencia at the time this thing happened there, they went back from the door. When my partners fire the shots the officers and when those two inside of the store were down I went out and also the other officers, they turn around to the corner of the store and went behind a car that was there. Then I told them. I leveled a gun to their direction and says ‘Raise your hands if you do not want to die.’ They throw ■ the pistol and raise their hands and then I give orders not to fire anymore.
“Q. Did you say pistol or pistols? A. One pistol.
“Q. Who threw the pistol? A. Manuel Valencia. * * *
“Q. When they put up their hands as you testified what was Manuel Valencia’s condition? A. When I ordered them to raise their hands he had the mask over his face yet and he had some blood on one side of his face, on the right side.
“Q. And did he remain standing or sitting or what was his position there? A. He was standing and raised his hands. He and Simon Vega.
“Q. Let’s direct our attention for the moment to Manuel Valencia. What did he then do or what happened to him? A. I told him that he was under arrest and he says ‘all right, I am pretty near done’.
“Q. Did he continue standing or lie down? A. He was standing and he said T am passed through with a bullet and I am going to tell you — ’
“Q. Was he still standing when he told you that? A. Yes sir.
“Q. How long was that when he told you what you are going to testify, how long was that after the first shooting or starting of this affair? A. That thing finish very soon. Everything went by very rapidly.
“Q. Was this what he told you immediately after you told him to throw up his hands? A. Yes sir, when I arrive to where he. was he told me that he was through with a bullet hole.
“Q. Tell what he said to you?
“Mr. Craig: We object to any statements or admissions made by the co-defendant Valencia at this time after he had been placed under arrest as stated by the witness, not made in the presence of the defendant Fernandez; any statement he may have made about Fernandez for the reason that statements or admissions made by a co-defendant after the conspiracy had ended is not-material and not admissible as binding upon the other co-defendant. I assume that is what he wants him to tell.
“The Court: Overrule the objection.
“Mr. Craig: Exception.
“Q. You may state what — I want to confine that conversation to what, if anything, was said about these defendants or either of them by you or Manuel Valencia at that moment. What if anything was said at that moment between you and Manuel Valencia with reference to these defendants here or either of them? A. I did ask him if he had any other partners and he told me that Gregorio ' Fernandez was on the outside of the town toward Gallup—
“Mr. Craig: I move that that answer be stricken and taken from the jury on the ground that it was statements made by a co-defendant after the conspiracy, if any, had ended, not made in the presence of the defendant Fernandez.
“The Court: Overruled.
“Mr. Craig: Exception.
“Q. After he told you this, state whether or not you went out there? A. Yes sir I picked up two officers and went over there.
“Q. When you got out there where Manuel Valencia had indicated to you, did you find anybody? A. The car was there, yes sir.
“Q. Anybody in it? A. Gregorio Fernandez was there.”
We do not understand appellant to have objected that the existence of a conspiracy or the membership of a conspirator is not to be proven by the extrajudicial declarations of a coconspirator; merely that a conspirator is not bound by such declarations made after termination of the conspiracy.
In Territory v. Neatherlin, 13 N. M. 491, 85 P. 1044, 1045, it was admitted to be the general rule that “acts or declarations of a time subsequent to the completion of that for which the alleged conspiracy existed” are not ■“competent evidence.”
The state contends, however, that the declaration was a spontaneous utterance under stress, and thus binding on appellant, even if the conspiracy be deemed to have ended with the frustration of its object; citing “Criminal Raw,” 16 C. J. § 1318, p. 663.
Appellant, without questioning the doctrine, which we may therefore assume to be sound, replies only that the incriminating declaration was not spontaneous, since it was evoked by the sheriff’s question. No authority is cited to the proposition that a question asked will be necessarily or conclusively fatal to spontaneity, and we know of no such rule. The tests of spontaneity were recently set forth by this court in State v. Buck, 33 N. M. 334, 266 P. 917. None of the essentials seems to be lacking here. So we sustain the trial court’s ruling.
It is contended that the court erred in overruling an objection to questions propounded by the district attorney on redirect examination of the above-named Mares, who was used as a state’s witness. It was developed on the cross-examination that this witness was of the opinion, from appearances which he described, that, in the car on the way to the intended' robbery, appellant not being present, Valencia was coercing defendant Vega with a pistol. The district attorney then instituted a series of questions implying that, though he had had several conversations with Mares preparatory to his being a witness, this fact had not been previously disclosed. Finally, the counsel for appellant objected that the state was attempting to im peach its own witness. The district attorney, claiming surprise, the objection was overruled.
In the first place, we do not perceive how appellant could have been prejudiced by this ruling. The evidence which surprised the state related solely to defendant Vega. In the second place, the point is here presented as if there had been an impeachment of the witness. If there had been, we may doubt if it would have been error. State v. Hite, 24 N. M. 23,172 P. 419. If the ruling be deemed to have sanctioned impeaching evidence, the district attorney did not take advantage of it. He merely employed a latitude of examination in the effort to obtain admissions from the witness himself. 28 R. O. L., “Witnesses,” § 228.
The trial court having sustained the state’s objections to questions propounded to the witness Guntherson, as to conversations with Rucker, it was incumbent upon appellant’s counsel to make a tender of proof. None having been made, we cannot determine whether the rulings were erroneous or prejudicial. State v. McCracken, 22 N. M. 588, 166 P. 1174, State v. Anderson, 24 N. M. 360, 174 P. 215, State v. Goodrich, 24 N. M. 660, 176 P. 813.
What, we have just said applies to the ruling excluding answers to questions propounded to the witness Baca. Or, if a leading question, immediately following the ruling, be deemed to disclose what it was proposed to prove, it does not affect appellant’s case at all. It affects the codefendant Vega, whose counsel asked the questions and took the exceptions.
Error is assigned on the court’s refusal to instruct that the statement of Valencia to the sheriff, hereinbefore set forth, was not to be considered as bearing upon the guilt or innocence of the appellant. State v. McDaniels, 27 N. M. 59, 196 P. 177, is cited, but does not remotely support the contention, which is obviously without merit. It can amount to no more than a renewal of the contention that the statement was erroneously admitted.
There was substantial evidence to support the verdict. This, with what we have already said, disposes of the contention that the court erred in overruling the motion for new trial.
We conclude that the judgment should be affirmed, and it is so ordered.
SADLER, HUDSPETH, and BIOKLEY, JJ., concur.
ZINN, J., did not participate. | [
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ZINN, Justice.
On the 17th day of April, 1931, Oscar White and James Audray White were indicted by a grand jury in Chaves county, charged with the crime of larceny of a cow of the property of one R. W. Hancock, and were found guilty of such charge by a jury on the 30th day of April, 1931, and were sentenced by the trial court after such conviction. On this appeal it is urged by the appellants that the trial court erred in refusing to instruct the jury to return a verdict of not guilty at the conclusion of the state’s case in chief, and also at the conclusion of all the evidence, for the reason that there was not sufficient substantial evidence to support a verdict of guilty.
At the conclusion of the state’s case in chief, the defendants moved for a directed verdict, which motion was duly overruled, and the defendants introduced evidence in their behalf. By the introduction of such evidence after overruling said motion, the appellants waived the objection. State v. Analla et al., 34 N. M. 22, 276 P. 291; State v. Stewart, 34 N. M. 65, 277 P. 22.
It now becomes necessary to consider the evidence as it applies to each of the defendants, and to apply the law.
As to defendant Oscar White, the evidence discloses that he o.wned a ranch twelve miles north of Roswell known as the Ballard ranch, on the west side of the Pecos river, and he owned another ranch twenty-five miles from this ranch, known as the River ranch, on. the east side of the Pecos river. That the Ballard ranch was the headquarters ranch, but the River ranch was merely a camp which had been unoccupied for many years, and which ranch adjoined that of R. W. Hancock, the owner of the cow. That on December 13, 1930, Hancock’s son let six head into a small pasture on the River ranch, returning the next day with his father, R. W. Hancock, and his brother, and found one of these six head, a cow, butchered and hanging in an open shed at the River ranch camp with the hide rolled up and lying on the ground in the shed where the meat was hanging up, which hide Hancock later took to Roswell and'delivered the same to the officers. The evidence further discloses that Oscar White was seen with James Audray White about four miles from the river ranch, some time during the afternoon, but that they parted about 200 yards from where they were seen by the state’s witnesses, James Audray White, proceeding to the river ranch camp, while Oscar White crossed the Pecos river and went to a place known as Pony Lake where he was feeding cattle and ranging a band of sheep, which place is about nine miles from the River ranch, and then rode on to Ballard ranch, arriving there about seven o’clock that evening and stayed there all night, returning to Pony Lake the next day; that during the afternoon of that day, Sunday, James Audray White, accompanied by Mrs. Audray White and one Lucille Barker, came to Pony Lake when James Audray White informed Oscar White that a beef had been killed at the River ranch belonging to Hancock, and that.things were out of shape, and that Audray 'thought Oscar out to know about it; that Audray and the .women then left, going to Mrs. Audray White’s ranch, and that Oscar then went to the River ranch and there found the heef hanging up in the shed and a hide hearing his own brand lying near the heef, and then after remaining there a short period of time returned to the Ballard ranch; there was no evidence that Oscar White had been at the River ranch at any time either during that day, being Sunday, or the preceding day. The evidence further shows that when the Hancocks went to the River ranch and found the beef in the shed, the hide found at that time bore the Hancock brand, which hide was taken by the Hancocks, and that R. W. Hancock returned that evening with the sheriff and found the meat still hanging there, cold, and the hide, which Oscar White saw bearing his brand, lying there in the shed, but warm and bloody, with only three feet on it. The next morning Hancock returned to the River ranch together with the officers and followed some tracks leading away from the place for about a mile and a half where they found a beef carcass which had been freshly skinned, without a hide, but which carcass had one foot on it, apparently being the carcass belonging to the hide bearing the Oscar White brand substituted for the hide hearing the Hancock brand in the shed with the beef.
As to James Audray White, the evidence further discloses that he left his ranch on December 13, 1930, Saturday, for the purpose of gathering some strayed cattle, and that he met with Oscar White as above stated, and, after parting, proceeded to the River ranch arriving alone a short time before night, where he met one Frank Johnson, who soon left, and that James Audray White stayed at the camp all night, and that about two o’clock Sunday morning his wife and Ducille Barker came to the house and stayed there all night and all of that part of the next day, Sunday, until late in the afternoon when they left to return to their own ranch, during which time James Audray White went to Pony Lake and informed Oscar White about the killing of a beef as above set forth. The evidence further shows that on Sunday morning James Audray White went to the shed and cut off a piece of the beef hanging there, and cooked it for breakfast, and that the butchered beef hanging in the shed had been cut up “cowboy style” with a cleaver or axe, not sawed, and that an axe was found close to the shed with finger prints thereon which were the finger prints of James Audray White, and that James Audray White admitted handling the axe with bloody hands.
On the above evidence the jury brought in a verdict of guilty as to the two defendants, Oscar White and James Audray White.
At the conclusion of all the evidence the defendants moved for an instructed verdict in their behalf, which motion was denied.
The court erred in denying the motion of Oscar White for an instructed verdict in his behalf at the close of the case. The evidence introduced by the defense, which adds nothing very substantial to the state’s case as to Oscar White, is insufficient to support a verdict of guilty as to him. True he owned the River ranch where the beef was found, and was seen three or four miles from that place on the afternoon before the crime was committed, but that with, the other facts above set forth is insufficient to support a verdict of guilty. The River ranch was unoccupied, open to every one, and the possession or ownership of the ranch by Oscar White and the shed wherein the stolen -beef was found does not raise a presumption of his guilt. There was no evidence that the shed was locked or closed in such manner that no one except Oscar White could enter it; but on the contrary the very facts disclosed by the evidence show conclusively that it was used by others.
The state contends that while recent unexplained possession of stolen property standing alone does not justify conviction of larceny, but that such possession with slight corroboration of other inculpatory evidence to show guilt is sufficient.
There is no evidence that Oscar White had anything but constructive possession of the beef. Possession of the fruits of crime to raise a presumption of the guilt of the possessor involves knowledge, -dominion, and control, with power of disposal, or voice in the power of disposal, in the alleged possessor. The fact that the beef was found in a shed on a large ranch belonging to the defendant, which shed and ranch was open to the use of others, does not raise such a presumption of law as to the defendant’s guilt, which would justify the conviction of the accused.
“It would be carrying the rule too far to require one accused of crime- to explain the possession of stolen property, when such posr session could also, with equal right, be attributed to another. Hence the mere fact of finding stolen property on premises, or any other place, to which many others have free access, without showing his actual, conscious possession thereof, discloses only prima facie constructive possession, and is not such possession as will justify an inference of guilt by reason thereof. The unexplained possession by one of goods belonging to another does not raise the presumption that a larceny has been committed, and that the possessor is a thief; additional evidence is necessary to establish the corpus delicti. Sanders v. State, 167 Ala. 85, 28 L. R. A. (N. S.) 536, 52 So. 417; notes in 101 Am. St. Rep. 481, 487, and 68 L. R. A. 48.
“In State v. Seymour, 7 Idaho, 257, 61 P. 1033, this court refused to allow a conviction for grand larceny to stand, although the defendant admitted the possession of the stolen property, and attempted to explain the same, and had fled from the place of the commission of the crime after his arrest. The court said: ‘In case of a substantial conflict in the evidence, the verdict of a jury will not be disturbed. But this is not a case where the evidence is conflicting. There is an absolute lack or want of legal evidence to sustain the verdict. In such a case the jury cannot arbitrarily ignore the evidence, when there is no conflict, and the witnesses are not impeached. If the jury could do that, it could find a defendant guilty without any evidence, and thus violate the well-established rule that a defendant cannot be legally convicted except upon legal evidence that establishes his guilt beyond a reasonable doubt.’ ” State of Idaho v. Frank Sullivan et al., 34 Idaho, 68, 199 P. 647, 17 A. L. R. 902, at pages 907 and 908.
The fact that the beef was found in a shed on a large ranch belonging to one accused of larceny, which shed and ranch has been unoccupied for a great period of time and open to the use of others beside the accused is a circumstance which requires the corroboration of other testimony pointing directly to the guilt of the accused beyond a reasonable doubt, and standing alone such ownership discloses only prima facie constructive possession, and is not such possession as will justify an'inference of guilt by reason thereof.
There are no other facts or circumstances save ownership of the ranch and shed in Oscar White, and the fact that he was seen on his own ranch about three or four miles from the shed, where he had a right to be, which might point to the guilt of the defendant Oscar White. He was not at the River ranch camp at any time when the Hancock cow could have been butchered.
The conviction of the defendant Oscar White cannot be upheld in this court, unless there is substantial, sufficient evidence in the record which, if true, warranted a verdict of guilty. The evidence in this case as to Oscar White is insufficient to sustain the verdict, and the court should have directed the jury to return a verdict of not guilty as requested at the close of the ease, with directions that he be discharged.
For the reasons stated, the judgment of the trial court as to Oscar White will be reversed.
As to defendant James Audray White, the jury may have reasonably inferred as to his guilt. He was actually present at the ranch the day of the crime, and was there all night, and the next morning he went to the shed and cut off a piece of the beef hanging there and cooked it for breakfast, and the hide was there at that time. The beef had been cut with an axe, and an axe was found near the shed with fresh blood stains bearing his identified finger prints; that he told Oscar White that one Frank Johnson had killed a beef, and things were out of shape or things arc going wrong. There was no explanation as to what thing-s were going wrong, and it is apparent that he was in fear. Though the evidence for the defense intended to show that the crime may have been committed by one Frank Johnson, the jury did not so believe, and from the facts and the evidence tending to show that James Audray White may have committed the crime, the jury could have reasonably found James Audray White guilty as charged.
As to error in the admission of the testimony of witness Lucille Barker raised by the defendant Oscar White, it will not, therefore, be necessary for us to consider them in this case.
Finding no error, the judgment as to James Audray White will be affirmed. It is so ordered.
WATSON, O. J., and SADLER, HUDSPETH, and BICKLEY, JJ., concur. | [
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HUDSPETH, J.
B. 8. Wilson, a member of the bar, prosecutes this appeal from an order of the district court of Colfax county, which holds that a fee of $150, which had been paid him, was full compensation for services rendered in behalf of the incompetent, Maggie Thomas Boyd, at the request of Willis O. Johns, one of her guardians, and rejects his claim for $1,000 additional.
John W. Thomas died testate in the year 1916, and his son, David J. Thomas, and his grandson, Willis O. Johns, were named executors of his will, and testamentary guardians of the property of Maggie Thomas Boyd. They, qualified as executors and guardians in the probate court of Colfax county in the year 1917. Some time later, .and before he entered the Army for the World War, Willis O. Johns executed a power of attorney, preparéd by appellant, to David J. Thomas, his eoguardian and coexecutor, by which he attempted to delegate all his powers and duties as guardian to David J. Thomas, after 'which he neglected his duties as guardian up to the year 1926 or 1927. In the year 1927 appellant, as attorney for Willis O. Johns as guardian of the property of Maggie Thomas Boyd (jointly with David J. Thomas), filed a petition in intervention for Maggie Thomas Boyd in cause No. 7623, which was a suit instituted by Willis O. Johns, as an individual, against David J. Thomas, as an individual, in which Johns sought an accounting from said Thomas for moneys said to have come into the hands of Thomas as joint executor with Johns of the last will and testament of John W. Thomas, deceased. The facts alleged in the petition for intervention were substantially the same as those which had been alleged in the orginal complaint filed by Willis O. Johns in that case, and, to the new matter pleaded by David J. Thomas in his answer to said petition in intervention, the intervener filed a reply consisting of a general denial. Findings No. 2 and 3-are as follows:
“2. That the said cause No. 7623 never did reach the stage of final hearing; that no detailed statement of his account was filed by David J. Thomas as to Maggie Thomas Boyd in that cause; that both David J. Thomas and Willis O. Johns were relieved of their posts as guardian prior to the time any derailed statement was filed by said David J. Thomas in that cause as to Willis O. Johns ; that David J. Thomas was discharged by' the court in this proceeding (No. 7768) for wrongful conduct and neglect of duty, and Willis O. Johns was, by this court in the same cause, given his choice of resigning or being discharged by the court for gross neglect of his duty as guardian, the choice made by him having been to resign, said guardians having been displaced in January, 1928.
“3. That the said cause (No. 7623) was commenced while the will matter (John W, Thomas will) was regularly pending in the Probate Court of Colfax County, New Mexico, and without any effort whatever having been made by Willis O. Johns, as joint executor of the will, as guardian of the property of Mag-gie Thomas Boyd (jointly with David J. Thomas), or as a devisee and beneficiary under said will, in the Probate Court to have a report or accounting made by said David J. Thomas, by reason whereof the filing of the said petition in intervention in cause No. 7623 was wholly unnecessary and ill-advised; that, in fact, soon after the appointment of John Leonard, as guardian to succeed the said Thomas and Johns, the said petition in intervention was, (with the consent of this court), withdrawn and steps were regularly taken in said Prohate Court resulting in an accounting and settlement of the said estate in that Court, with an order for distribution to said Willis O. Johns and the other distributees; and that, on motion of the plaintiff in said cause No. 7623, the same was dismissed, without ever proceeding further than hereinbefore found.”
The court, at the final hearing, made the following statement: “The Court: And in sustaining this order the court desires it to be clear that at the time of the allowance of $150.00 to A. M. Edwards, who was then attorney of record for David J. Thomas, and of $150.00 to L. S. Wilson who was attorney of record for Willis O. Johns, that it was the intent of the court, — who then did not fully understand the situation which had existed through almost ten years following the death of John W. Thomas, with reference to the management and handling of the estate, such information having later come out a little at a time in the several cases tried in this court — to then and there fully compensate both attorneys for all services theretofore rendered in behalf of Maggie Thomas Boyd. The court further desires to say that the decision in this case, which is to be followed by judgment presently to be signed, turns primarily upon the fact that throughout almost the entire ten year period following the death of John W. Thomas, Willis O. Johns had neglected all of his duties to his ward, had neglected to conserve her estate, and to carry out the directions in her behalf made by the will of John W. Thomas, had left the whole of the administration of the property to David J. Thomas, and that the loss which the said Maggie Thomas Boyd had apparently sustained at the time that Mr. L. S, Wilson undertook to represent said Willis O. Johns, and, at his behest, to represent also Maggie. Thomas Boyd, was due to the neglect of Willis O. Johns, and that the court, from a full knowledge of that fact, would not feel justified in allowing any sum whatever to the attorney for the said Willis O. Johns and for said attorney employed by said Willis O. Johns to take some action to recover for the said Maggie Thomas Boyd that which rightfully was hers, it being the holding of the court that the said Willis O. Johns should pay for his own neglect and default.”
The court also based his ruling upon the proposition that appellant could not maintain an action against the incompetent or her estate for services rendered at the instance of her guardian; that, “if such an application were at all tenable,” the claim should have been presented by the guardian. This last proposition seems to be the general rule. In Payne v. Rech, Gdn., 6 Ohio App. 327, a well-considered case, the following appears: “Judge Woerner, in his American Law of Guardianship, at page 185, pertinently observes as follows: ‘As a general proposition, guardians cannot by their contracts bind either the person or estate of their wards. Such contracts bind the guardians personally, and.' recovery thereon must be had in an action against them, not against the ward.’ ”
In Hunt v. Maldonado, 89 Cal. 636, 27 P. 56, the court said: “The action is to recover an attorney’s fee for services rendered to the guardian of a minor in pursuance of a written contract. The action is against the minor. If the guardian made a valid contract with the .attorney, he may 'be held liable, and, if he pays it, and the probate court shall deem the expenditure reasonable and necessary to protect the interests of the ward, it may be allowed from the ward’s estate. But it is an expense incurred by the guardian in the performance of his duties for which he is primarily liable.” See, also, Tasker v. Cochrane, 94 Cal. App. 361, 271 P. 503; Weber v. Werner, 138 App. Div. 127, 122 N. Y. S. 943; Jennings v. Canady (C. C. A.) 13 F.(2d) 356; Greever et al. v. Barker, 316 Mo. 308, 289 S. W. 586; Aubrey’s Estate v. De Lozier, 128 Okl. 79, 261 P. 192; Wilson v. Van Horn, 114 Wash. 109, 194 P. 560; 21 Cyc. p. 99; 28 C. J. 1151; 12 R. C. L. p. 1157.
The rights of attorneys against the estates of lunatics are governed by the same principles as apply to similar claims against the estate of an infant. Irvine v. Stevenson, 183 Ky. 305, 209 S. W. 7; Woerner’s American Law of Guardianship, p. 471.
The appellant argues that his client, Willis O. Johns, should not have been removed as guardian. While this question is beside the issue, it is apparent from appellant’s own statement, to the effect that his client had depended upon his uncle, David J. Thomas, an older man, to discharge the duties of executor and guardian until about a year before his removal, to say nothing of the attempt on the part of Johns to invest David J. Thomas with his powers as guardian by the execution of the power of attorney, furnishes ample grounds for the action of the court in demanding his resignation. If one does not expect to discharge the duties of a trust, he should not assume the obligations thereof, and, when Johns was called to the colors, he should have resigned rather than attempt to authorize his coguardian to act for him.
The authorities seem practically unanimous in support of the proposition that a ward should not be called upon to pay attorney’s fees made necessary by the neglect of the guardian. Steyer v. Morris, 39 Ill. App. 382; Blake v. Pegram, 109 Mass. 541; Matter of Schneider’s Estate, 1 App. Div. 39, 36 N. Y. S. 972; Frelick v. Turner, 26 Miss. 393; Cutts v. Cutts, 58 N. H. 602; Pyatt v. Pyatt, 44 N. J. Eq. 492, 15 A. 421; Estate of Moore, 72 Cal. 342, 13 P. 880; Estate of Holbert, 48 Cal. 627; In re Guardianship of Crowell, 27 Hawaii, 439; 1 Ross on Probate Daw 766; Woerner’s American- Law of Guardianship, p. 351.
Other points are argued, but, in view of the foregoing, it will be unnecessary to consider them.
Finding no error in the record, the judgment of the district court will be affirmed; and it is so ordered.
WATSON, C. J., and SADLER, and BICKLEY, JJ., concur.
ZINN, J., did not participate. | [
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HUDSPETH, ,T.
Petitions were filed before the State Corporation Commission signed by Robert Hoath La Follette and others praying that the State Corporation Commission investigate reported excessive prices charged by the Albuquerque Gas & Electric Company. The respondent denied the jurisdiction of the State Corporation Commission and refused to comply with an order of the commission to produce their books, papers, and records for inspection. Whereupon the cause was removed to this court.
The State Corporation Commission was created by article 11 of the Constitution. The first sentence of section 7 of said article reads as follows: “Sec. 7. The commission shall have power and be charged with the duty of fixing, determining, supervising, regulating and controlling all charges and rates of railway, express, telegraph, telephone, sleeping-car, and other transportation and transmission companies and common carriers within the state.”-
The sole question to be determined is whether it was intended to give jurisdiction by the phrase, “and other transportation and transmission companies and common carriers,” quoted above, for the purposes of rate regulation to the State Corporation Commission over utilities of the class of respondent, doing a local business of manufacturing, buying, and selling gas and electricity, and distributing those products to consumers.
It is recognized that the intent of the instrument is the object to be attained, and that the intent is to be sought in the instrument itself. State v. Romero, 17 N. M. 81, 124 P. 649, Ann. Cas. 1914C, 1114, 12 C. J. 703. But in view of the wide range of the discussion by counsel of conditions existing at the time the Constitution was drafted and adopted, it may be well to s'tate that the United States census of 1910, the year in which the Constitution was drafted, listed only three towns in New Mexico with a population of over 5,000. Albuquerque’s population was 11,020. The next largest had a population of 6,172, and the third had only 5,072 souls. Advocates of municipal ownership of utilities had long been among us. (See Asplund v. City of Santa Fe, 31 N. M. 291, 244 P. 1067.) So it appears that only a small number of the citizens of the commonwealth were interested at that time in the creation of a utilities commission or other body with power to regulate the rates of local gas and electric companies. The regulation of rates of public utilities is primarily a legislative function. If the people, in adopting the Constitution, did not confer upon the Corporation Commission the power to regulate the rates and charges of local utilities, the power is vested in the Legislature and may be delegated by it. Seward v. Denver & R. G. R. Co., 17 N. M. 557, 131 P. 980, 46 L. R. A. (N. S.) 242; San Juan C. & C. Co. v. Santa Fe, S. J. & N. Ry. Co., 35 N. M. 512, 2 P.(2d) 305; Kemp Lumber Co. v. Atchison, T. & S. F. Ry. Co., 36 N. M. 126, 9 P.(2d) 387.
Respondent argues that in ascertaining the intent from the language used certain rules of construction should be applied, viz.: (a) The rule known as ejusdem generis; (b) that reference should be had to related parts of the Constitution and the intent of one part ascertained from a consideration of all parts involving the same subject-matter; and (c) legislative and executive construction of the constitutional provision as well as long acquiescence in such construction. In support of this contention, among other evidence, it cites the opinion rendered the State Corporation Commission by the first Attorney General of the state, the late Erank W. Clancy, whose opinion has been followed. He stated:
“I regret very much being compelled to say that I do not find that you have been given any jurisdiction as to corporations of this class., The legislature can confer such jurisdiction and probably will do so when attention is called to the matter.
“You will notice that by section 7 of article 11 of the constitution you are charged with the duty of fixing, determining, supervising, regulating and controlling all charges and rates of railway, express, telegraph, telephone, sleeping car and other transportation and transmission companies and common carriers within the state. Electric light and power companies are not mentioned, and the only word which could possibly be considered as referring to such companies is the word ‘transmission’. It is true that such electric companies do transmit power in the form of an electric current, but it is quite clear that transmission companies mentioned in the constitution do not include this class of corporations. After enumerating several special kinds of corporations there is added the words ‘other transportation and transmission companies’. By a well-established rule of construction such other companies must be of the same kind as those previously mentioned, and a power and light company cannot be considered as of the same class notwithstanding the fact that electricity is the operating power of telegraphs and telephones and of some railways. The telegraph and telephone transmit messages and it is in that sense that the word transmission was used. The language used in sections 9 and 10 of the same article indicates the correctness of this view. In section 9 mention is made of transportation and trans mission companies engaged in tbe transportation of passengers and property; and section 10, referring again to transmission companies, shows that the transmission referred to is the transmission of messages.”
It will not be necessary to discuss the rules of constitutional construction generally in view of the conclusion we have reached. A contention for a construction of this clause of the Constitution, which would have resulted in a division of the regulatory power over the particular' subject then under consideration between tbe commission and the Legislature, was recently considered by us. San Juan C. & C. Co. v. Santa Fe, S. J. & N. Ry. Co., supra. The reasoning of Mr. Justice Watson in the opinion of the court in that case is equally applicable here. It will not be seriously contended that the electric company which sells its product at its switchboard, or the gas company which disposes of its product at its reservoir, could be classed as a “transmission company,” and yet it is admitted that jurisdiction over these companies is essential in the regulatory body charged with the duty of regulating rates and charges to the ultimate consumer of their products. The middleman or company which bought the electric current at the switchboard of the producing company and sold and distributed it to the people might be regulated and allowed to earn only a modest profit, and still the charge to the consumer be extortionate by reason of the price paid at the switchboard. The people in adopting the Constitution did not intend to vest the commission with jurisdiction over the distributing company and leave jurisdiction in the Legislature over the producing company. San Juan C. & C. Co. v. Santa Fe, S. J. & N. Ry. Co., supra.
Courts will not enlarge the scope of such constitutional provisions beyond their intent even to correct a situation which the courts may believe ought to be remedied.
We are unable to persuade ourselves that the Constitution makers meant to include local gas and electric light companies under the phrase “other transmission companies.” If they had desired to confer jurisdiction over such utilities in the Corporation Commission, they would have said so in apt words. Santa Fe G. & C. M. Co. v. Atchison, T. & S. F. Ry. Co., 21 N. M. 496, 155 P. 1093; Shawnee Gas & Electric Co. v. State, 31 Okl. 505, 122 P. 222.
It follows, therefore, that we must decline to enforce the order of the commission, and it is so ordered.
BICKLEY, C. J., and WATSON and SADLER, JJ., concur.
NEAL, J., did not participate. | [
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WATSON, Chief Justice.
This suit, commenced August 5, 1929, is upon a contract whereby plaintiff’s assignors agreed to sell, and defendants agreed to purchase, certain real property, for an agreed down payment and numerous deferred monthly installments. The complaint, alleging the making of some of the deferred payments and default in the rest, prays that defendants be held indebted for the balance, for a sale of the property to satisfy the indebtedness, and for judgment for any deficiency. When plaintiff had rested, defendants moved for judgment, and were sustained. A final judgment followed dismissing the complaint. Plaintiff appeals.
The judgment is based upon a construction of the contract, limiting appellant’s remedy, in ease of default by appellees, to a rescission of the contract and retention of the payments made. This .requires consideration of the following of the contract provisions:
“8. It is mutually agreed that time is the essence of this contract. Should the Purchaser fail to make any of the said payments at the respective times herein specified, or fail or refuse to repay any sums advanced by the owner under the provisions of the foregoing paragraph, or fail or refuse to pay said taxes, assessments or other charges against said real estate and continue in default for Thirty days after written demand for such payments, or payment of taxes, or payment of assessments or other charges against said real estate, or repayment of sums advanced under1 provisions of the foregoing paragraph, has been mailed to the Purchaser addressed to them at 510 Girard Avenue Albuquerque, New Mexico then the Owner may, at his option, either declare the whole amount remaining unpaid to be then due and proceed to enforce the payment of the same; or he may terminate this contract and retain all sums theretofore paid hereunder as rental to that date for the use of said premises, and all rights of the Purchaser in the premises herein described shall thereupon cease and terminate and he shall thereafter be deemed a tenant holding over after the expiration of -h- term without permission. An affidavit made 'by said Owner or his agent showing such default and forfeiture and recorded in the County Clerk’s office shall be conclusive proof, in favor of any subsequent bona fide purchaser or encumbrancer for value, of such default and forfeiture; and the Purchaser hereby1 irrevocably authorizes .the Owner or his agent to thus declare and record such default and forfeiture, and agrees to be bound by such declarations as their act and deed.
“9. Said Purchaser shall be entitled to take possession of said real estate and retain possession thereof until this contract shall be terminated by the exercise of the Owner of the option above provided, or until the delivery by the hereinafter named escrow agent, back to the Owner of all the papers held in escrow herewith, but the legal title to said real estate shall remain in said Owner until this contract has been fully performed upon the part of the Purchaser and deed executed and delivered as hereinbefore specified.
“10. It is understood and agreed upon the completion of all the stipulations and agreements herein contained, said Owner will, at the time of delivery of Warranty Deed, also deliver to said Purchaser, abstract of title, showing said real estate to be of good and merchantable title, on the date of the delivery of the Warranty Deed. It is further understood and agreed, however, that in the event the said Purchaser should cause any entries to be made upon the County Records which would affect the title to the above described land and which would put the Owner to extra expense in having his title abstracted; then the said Purchaser shall pay to said Owner any and all sums of said extra expense.
“13. It is understood and agreed that, coincident herewith the Owner has executed a good and sufficient warranty deed conveying the above described premises to the Purchaser, which said deed, together with a copy hereof, shall be placed in escrow, with First National Bank, Albuquerque, New Mexico who is hereby designated and appointed Escrow Agent, to be delivered 'by the Escrow Agent to the Purchaser upon full compliance on his part with all the conditions of this contract. In consideration of that fact the said Purchaser executes, coincident herewith, a special warranty deed reconveying the above described premises to the Owner, which said special warranty deed shall also be placed in escrow herewith to be delivered by the Escrow Agent to the Owner in the event that the said Purchaser defaults as hereinabove set forth, and remains in default for a period of Thirty days without the written consent of the Owner for said Purchaser so to remain in default.
“14. For the purpose of carrying out the terms of this .Contract, the following letter is directed to the Escrow Agent, to-wit:
“Escrow Letter
“To First National Bank, Albuquerque,
New Mexico,
“In re the sale under contract by George Kronemeyer and wife to Oliver Knox Ash and wife of the property hereinabove described, we hand you herewith, the following papers to be placed in escrow, to-wit:
“Warranty deed to herein described prop-' erty from Geo. Kronemeyer and wife to Oliver Knox Ash and wife. .
“Special Warranty Deed conveying herein described property from Oliver Knox Ash and wife to George/Kronemeyer and wife..
“We also hereby appoint you Escrow Agent hereunder, and direct you as such Escrow Agent to collect the payments provided for in the above contract and place the money so collected to the credit of George Kronemeyer, Albuquerque, New Mexico. Upon full compliance with the terms of said contract on the part of the purchaser, you are directed to deliver all the above mentioned papers to said Purchaser. In the event that the said Purchaser should default as set forth in the foregoing contract, and so remain in default for a period of Thirty days, without the written consent of the Owner, for said Purchaser so to remain in default, you are directed to deliver all the above mentioned papers to said Owner.
“In witness whereof, the said parties have hereunto signed and sealed this contract in their own proper persons the day and year first above written.
“Albuquerque, N, M., January 8, 1927
“George Kronemeyer [Seal.]
“Marguerite Kronemeyer [Seal.]
“Oliver Knox Ash [Seal.]
“Ellen T. Ash [Seal.]
“We hereby accept the appointment and designation of Escrow Agent herein and acknowledge receipt of the above mentioned papers.
“First National Bank, Albuquerque, N. M.
“E. H. Bierman.”
Of these provisions the court said in its opinion: “The contract form apparently attempts to provide an option to the vendor to declare a forfeiture on default and retake the property and retain the payments made, or to declare the whole amount remaining unpaid on default as due and proceed to enforce the payment of it all. These contracts, of course, are very difficult as they are neither flesh, fish, nor fowl. The contract purports to retain title in the vendor, which is rather inconsistent with the idea of an option. The escrow letter in paragraph 14 by which a third party, the bank, is made a party to the contract, seems to me certainly inconsistent fidth the option provisions in S and 9, if it does not destroy them. The escrow provisions bring in a third party who is, under the terms of 14, bound to carry out that paragraph, and apparently no option is given this third party in any particular. The contract would be complete if paragraph 14 were not executed and a third party not brought in, it would be a complete contract then between the vendor and vendee, and the provisions of 8 and 9 would be unassailable. The omission of paragraph 14 would leave a clear complete contract. The inclusion of it makes it, at best, an ambiguous contract. I dismiss the suit, which is an equity case, on condition that defendants execute whatever conveyances are necessary to vest title in the plaintiffs.”
The learned trial judge evidently considered that, except for the escrow provisions, the contract would have been enforceable according to its terms. It is not contended to the contrary. We agree. The vendor’s reservation of an option to rescind for default of the purchaser in making the payments does not destroy the character of the contract as a sale. Such option was obviously for the benefit of the vendor. The purchaser may not take advantage of his own default to claim a rescission: Fouts v. Foudray, 31 Okl. 221, 120 P. 960, 38 L. R. A. (N. S.) 251, Ann. Cas. 1913E, 301; Stewart v. Griffith, 217 U. S. 223, 30 S. Ct. 528, 54 L. Ed. 782, 19 Ann. Cas. 639, and annotation.
The theory of the trial judge would reduce the contract to an option on the part of appellees, either to pay and obtain title, or to rescind and avoid liability for the agreed purchase price. We are unable to see how the insertion of the escrow provisions renders the contract ambiguous, or affects at all the promise of appellees to pay the price, or the right of appellant to exact it. We see in paragraphs 13 and 14, above set forth, no more than a recital of quite usual measures taken to secure appellees in their right to a deed upon full performance, while - at the same time securing the vendor in case he should desire to exercise the option to rescind for nonpayment. We do not understand that these measures, or the recital of them, constituted the bank a party to the main or sale contract. The bank of course was bound to deliver the papers according as one or the other of the parties should rightfully demand them. We do not conclude from this that the vendor was compelled to demand or ac cept them, or waived his right to enforce the contract as a sale.
To sustain the judgment, despite the error in interpreting the contract, appellees contend that no remedy was available to appellants, because written demand was not shown to have been made for the overdue payments, as required by paragraph 8.
The complaint alleged, both that the written demand had been made, and that appellees, by abandoning the premises about ten months before institution of suit, had waived demand. Both of these matters were issues at the trial.
Appellees, assuming that the trial court found demand to have been made, contend that the evidence does not support the finding. Appellant contends that it does, and contends further that, if it does not, demand was waived by the abandonment.
The court did find, as requested by appellant, that appellees had abandoned the premises on or about October 1, 1928. However, he was not asked to make, and did not make, any conclusion of law as to the effect of such abandonment. Neither party here supports his position on this legal proposition by argument or authority.
What view the trial court took as to the evidence of written demand is left in doubt. When the point was raised below at the close of the ease the court said, “I don’t care about that. They proved a written notice and if you deny it, all right. They called on you for the letter and you didn’t have it.” This would indicate that the court was satisfied with the evidence. Yet the court refused a finding proposed by appellant embodying,' among other facts, the making of such demand, and at the same time refused a finding proposed by appellees that such demand was not made.
Under these circumstances, and in view of our conclusion on the first point, we deem it best not to attempt to decide these matters. They should be decided first below.
The judgment will be reversed. The cause will be remanded for any proper further proceedings not inconsistent herewith.
It is so ordered.
.SADLER, HUDSPETH, BICKLEY and ZINN, JJ., concur. | [
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ZINN, Justice.
The appellant, as shipper, sued the appellee, the carrier, for the sum of $2,060.50, for damages to three hundred sixty-seven head of cattle, which the appellant delivered to appellee at Clovis, N. M., on November 8,1929, for shipment to Kansas City, Mo. ' In the complaint it is alleged that the cattle were unloaded at Wynoka, Okl., into open pens, knee deep in mud, no shelter provided, and -during a very severe rainstorm, and that the cattle were improperly fed and cared for, and after thirteen hours of such negligent care were reloaded into wet, muddy cars without dry .bedding, and were shipped to destination, all of which greatly damaged the cattle to the injury of the appellant.
By stipulation entered into between the parties in the trial court, it was agreed that the “Uniform Live Stock Contract,” being Defendant’s Exhibit A of its answer, was the ■contract which covered the shipment of cattle over the line of the appellee, and that the said contract covered the kind and nature of damages claimed by the appellant, which damages were stipulated in the sum of $1,-000. It was further stipulated that the appellant failed to give written notice to the carrier as provided by paragraph 4-c of said contract, which paragraph is as follows: “Before the livestock is removed from the possession of the carrier or mingled with other livestock, the shipper, owner, consignee or agent thereof shall inform in writing the ■delivering carrier of any visible or manifest injury to the livestock.” ,
The appellant contends that failure to give such written notice is not a condition precedent to recovery, for the reason that an interpretation of this paragraph 4r-c is controlled by the statutes and decisions of the United States, in that the shipment was an interstate shipment under the provisions of the Transportation Act (41 Stat. 456) as the same existed at the time of the shipment of the cattle.
The appellee, the carrier, contends that section 4-c of the contract, supra, is plain and unambiguous, and requires of the shipper a notice in -writing of injury to his shipment, and that said written notice is a notice of apparent injury to animals before intermingling with other cattle and is distinct and separate from the notice of claim for damages referred to in the Transportation Act, and that the giving of such notice is a condition precedent to the bringing and maintaining of the suit to establish the liability of the carrier.
By the stipulation of the parties it is agreed that the damage to the appellant’s cattle was of the kind and nature claimed by the appellant and was such damage or injury while being loaded, unloaded, or in transit, and in the sum of $1,000, and it is therefore admitted that the damages were due to the negligence of the carrier, leaving the only question to be determined one of law, that is, whether or not the shipper was required to give written notice as provided by paragraph 4r-c, supra.
The appellee cites numerous decisions in support of its contention that such a provision for written notice is a condition precedent to recovery, and that failure upon the part of the shipper to give such written notice of injury bars the claim.
There is unquestionably a distinction between a notice of claim for damages because of injury sustained by live stock in transit or in loading and unloading, referred to in the Transportation Act, and a notice to the carrier advising him of apparent Injuries before the live stock is removed from the possession of the carrier or mingled with other live stock, as intended by section 4r-c of the contract. Section 4-c of the uniform live stock contract is plain and unambiguous and apparently intended for the protection of the carrier to enable the carrier to investigate the alleged injury before the live stock is taken from the carrier’s possession and intermingled with other stock and before the identity of the injured cattle is lost, so that the carrier can ascertain the apparent injuries for which it shall be held in damages ; but, nevertheless, this was an interstate shipment, and is therefore governed exclusively by federal legislation and decisions thereon. See Atchison, T. & S. P. Ry. Co. v. Miller, 63 Colo. 46, 163 P. 836, and eases therein cited.
It is not necessary for us to attempt to distinguish the various decisions of the courts turning on the question of whether the claim for injury was the kind requiring notice of claim, or filing of claim under the statute.
The section of the Transportation Act in question is section 20, par. 11, of the act (title 49, section 20 (11), USCA), as in effect, at the time of the shipment.
The act as now amended, July 3, 1926, c„ 761, 44 Stat. 830; March 4, 1927, c. 510, §• 3, 44 Stat. 1448; April 23, 1930, e. 208, 46 Stat. 251, is set out in 49 USCA § 20 (11) and is not under consideration here.
Paragraph 11 of section 20 was originally part of the Hepburn Act of June 20, 1906, c. 3591, 34 Stat. 593, and was known as the“Carmack Amendment” and later amended on March 4, 1915 (38 Stat. 1196) by the so-called “Pirst Cummins Amendment.” This paragraph was again amended by Act of Aug. 9, 1916 (39 Stat. 441), known as the “Second Cummins Amendment,” which struck certain provisions from the paragraph, but made no changes in the provision applicable to the issue here.
The amendment to the Transportation Act in effect at the time of the shipment, and which is pertinent here, is chapter 510 of the Laws of 1927, adopted by the Sixty-Ninth Congress, entitled “An Act To amend the Interstate Commerce Act and the Transportation Act, 1920, and for other purposes,” found in volume 44, part 2, Public Laws, of the-United States Statutes at Large, and the particular provision applicable is found on page-1449 thereof, and is as follows, to wit: “Provided further, That it shall be unlawful for any such receiving or delivering common carrier to provide by rule, contract, regulation,, or otherwise a shorter period for giving no tice of claims than ninety days, for the filing of claims than four months, and for the institution of suits than two years, such period for institution of suits to be computed from the day when notice in writing is given by the carrier to the claimant that the carrier has disallowed the claim or any part or parts thereof specified in the notice: Provided, however, That if the loss, damage, or injury complained of was due to carelessness or negligence while the property was in transit, or while the property was being loaded or unloaded, or was due to unreasonable delay in transit or in loading or unloading, then no notice of claim or filing of claim shall be required as a condition precedent to recovery, but in no case under this proviso shall suit be instituted after three years from the time such cause of action accrued.” 49 USCA § 20 (11) note.
This same question has been fully determined and considered in the case of Louis Ilfeld Co. et al. v. Southern Pae. Co.—Pacific System, decided on April 1, 1931, by the Circuit Court of Appeals, Tenth Circuit, reported in 48 F.(2d) 1056, 1057, where the controversy arose over a claim for damages for injury to cattle in transit from Sonita, Ariz., to Whitman, Neb., under a “Uniform Live Stock Contract” having the identical provision as that under consideration here, to wit, section 4-c. The District Court of New Mexico sustained the demurrer of the carrier for the reason that the shipper did not allege compliance with section 4^e of the contract, which required a shipper, owner, consignee, or agent, before removal or mingling of live stock, to inform in writing the delivering carrier of any visible or manifest injury to the live stock. The parties differed in construing the words “notice of claim” in the statute; the shipper contending that, where negligence is the ground of suit, the language of the amendment was broad enough to render invalid the stipulation for written notice of injury; the appellee insisting that such notice was not meant to be excluded, and, the stipulation being valid, the failure to comply with it defeated a recovery. The court said: “The Cummins Amendment was soon adopted with uniformity in view respecting liability upon contracts for interstate shipments, and declared unnecessary notice or filing of claims in negligence cases. We think the language used is not ambiguous, when considered in the light of this manifest purpose. It was doubtless intended to be complete, as a regulation of all matters pertaining to claims based on negligence. No room appears to have been left for a stipulation requiring written notice of injury, upon the theory of a distinction between that phrase and notice of a claim. The letter of the law would thus be made the basis of construction rather than its object. A notice of injury would serve no other purpose than to apprise the carrier of a claim for damages. It is obvious that, if a carrier is not entitled to notice of a claim, it is' not entitled to notice of an injury, which has a claim as its object. As the reason for both is the same, they are therefore practically synonymous in meaning. And as was said in Barrett v. Van Pelt, 268 U. S. 85, 45 S. Ct. 437, 69 L. Ed. 857, it may reasonably be thought that, where the ground of suit is negligence, the carrier has knowledge of the facts or expects a claim to be made for compensation. In our opinion, the proviso in question was intended to prohibit a notice of injury as a defense.” Louis Ilfeld Co. et al. v. Southern Pac. Co. Pacific System (C. C. A.) 48 F.(2d) 1056, 1057. The appellate court reversed the trial court. To the same effect, see Forkner v. Louisville & N. R. Co., 232 Ky. 579, 24 S.W.(2d) 290; Hicklin v. Central of Georgia Ry. Co., 40 Ga. App. 297, 149 S. E. 286, 428; Hill v. Great Northern Ry. Co., 156 Wash. 567, 287 P. 665.
It is apparent in this case that the trial court’s attention was not called to the recent cases construing section 4-c of the Uniform Live Stock Shipping Contract.
As above stated, this is an interstate shipment and controlled by the Transportation Act, and we are therefore governed by the federal decisions. In this instance, in the absence of a final decision by the Supreme Court of the United States, we are guided by and are in accord with the decision of the Tenth Circuit Court of Appeals, in the case of Ilfeld v. Southern Pacific, supra, that the notice required by section 4r-c is not a condition precedent to recovery in light of.the specific provision of the Transportation Act, which provision was in force when the cattle of appellant were shipped, providing that no notice of claim is necessary where the loss, damage, or injury complained of was due to carelessness or negligence upon the part of the carrier while the property was in transit, or while the property was being loaded or unloaded, or was due to unreasonable delay in transit or in loading or unloading.
The judgment appealed from is therefore reversed, and the cause remanded, with instructions to enter judgment for the appellant as provided in the stipulation. It is so ordered.
WATSON, O. J., and SADLER, HUDS-PETH, and BICKLEY, JJ., concur. | [
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SADDER, Justice.
Plaintiff sued to recover a balance of $4,-107.69, claimed due him under a building contract for the construction of a garage building and auto sales room in the city of Albuquerque. He alleged performance in accordance with the terms of the contract, copy of which was pleaded. The contract provided that it, together with the specifications and drawings, should form the contract. Defendant answered, pleading a copy of the specifications, and denying that the building was constructed in accordance with the contract, plans, and specifications, in this: (a) That, while bound under the contract to. construct said building wholly upon the lots of defendant, he had failed so to do by putting the same in part upon West Tijeras avenue; and (b) that he had failed to construct the floor in the garage portion of the building so as to “pitch to drain” as called for by the plans.
Damages to defendant for the alleged encroachment on the public street were laid at $1,387 • and for the claimed defect in construction of the floor at $1,120, for which amounts defendant prayed judgment against plaintiff.
The plaintiff in reply denied all allegations of new matter pleaded by the defendant. The ease was submitted to the jury both on the general issue and for special findings. It returned a general verdict for plaintiff for $4,107.69, the amount claimed, and answered such of the special issues tendered as were required under the form of their submission. Judgment was entered pursuant to verdict, and this appeal followed.
An issue was made in the proof as to whether the plans required the entire garage floor to “pitch to drain,” or only an area thereof approximately 20x25 feet in dimensions, with sand pit or drain in center where cars were placed for washing. The floor plan consisted of a display room at the front. A parts room and an office immediately adjoining the display room at the rear divided the floor plan into two sections — the display room and the car storage or garage portion of the building. The car storage room occupied by far the greater portion of the floor space of the building.
Upon the map or plan of the building covering the ear storage section thereof appeared the legend, to wit:
“5' Concrete Moor Pitch to Drains”
It was undisputed that only one drain was called for by the plans. 'It was located underneath a sand trap in the corner of the building appropriated to ear washing. It was also an undisputed fact that an area of approximately 20x25 feet in dimensions around this sand trap did pitch to the drain. There was also evidence that, in order to have the entire floor of the garage room pitched to this drain, the front or upper sections of the garage floor would require elevation some six inches, a condition, testified as undesirable on a floor devoted to the storage of ears. In addition, a civil engineer who supervised the construction of this building for plaintiff, and who also assisted defendant’s architect in the drawing of the plans, explained certain symbols consisting of four small lines about an inch long pointing toward the sand trap as indicating the portion of the floor which was to pitch toward the drain, and that they constituted the only marks or symbols indicating drainage anywhere on the map.
The jury, both by its general verdict and by its answer to one of the special issues submitted, found the plans did not require the entire floor to pitch to drain. There was substantial evidence to support this finding, and the ambiguity as to the tine meaning of the plans on this question warranted the court in submitting to the jury their proper interpretation.
The next point relied upon for reversal is not so easy, of solution. It relates to a claimed encroachment. We think it must be taken as an admitted fact in the case, as tried, that an encroachment exists. The form of the general charge and the special issues submitted seem rather to take such fact as granted; it being left to the jury to say what damage, if any, resulted to defendant from the encroachment. And, as affecting the question of damage, the court charged the jury that the decree entered by the district court of Bernalillo county in a certain suit theretofore prosecuted by the plaintiff, Marchant, against the defendant, McDonald, and the city of Albuquerque, involving the question of such encroachment, “fully and completely protects the possession, use and enjoyment of the defendant and his successors in title.”
The following special issue, at defendant’s request, was submitted to the jury and answered by it as indicated, to wit: “If you find that the defendant has been damaged by reason of the building -having been placed in part upon West Tijeras Avenue, how much do you find that the defendant has been damaged by the building being so built? Answer: None.”
The decree in said cause No. 18131 was introduced in evidence by the plaintiff without objection on the part of the defendant. As above stated, this separate suit was prosecuted by the plaintiff herein against the city of Albuquerque and the defendant herein. The city of Albuquerque filed its answer in said suit, and the defendant, McDonald, defaulted. The decree entered recited that there was a projection at the northeast corner of the building of 0.31 feet into West Tijeras avenue. It adjudicated, as the city admitted, that said projection was without damage to the city, and that the same, as consented to by the city in its answer, might remain “as now constructed and may remain so extending, projecting and jutting into West Tijeras Avenue as aforesaid, as long as said building shall stand as now constructed ; and until such time as said building shall be torn down, removed and destroyed.”
It was further adjudicated, nevertheless, that the city had not waived or disclaimed its right and title to that portion of the street covered by the projection, and should never be barred or estopped from asserting and claiming its right and title thereto. .In addition, the decree awarded personal judgment against the defendant, McDonald, in the sum of $3,093.09, with interest.
Within thirty days the defendant, McDonald, moved to vacate the default entered as-to him upon the ground that the complaint in said cause had sought no money judgment against him; that he had a good and meritorious defense against any money demand,, in that he was not indebted to the plaintiff, Marchant, and in that said plaintiff had failed to construct the building upon land owned by said defendant, as in his contract he had. agreed to do, but had erected the same in part upon a public street of the city of Albuquerque. The default against McDonald by mutual consent was set aside with the proviso in the order setting it aside “that this order shall in nowise affect or invalidate the judgment and decree entered in said cause against the defendant, the city of Albuquerque, a municipal corporation.”
Perhaps the major portion of the appellant’s brief is devoted to an able discussion of the effect of this decree upon the rights of the parties. It is strongly argued that the projection, though slight, renders unmarketable the title of defendant to the lot area occupied by the building in question; that the decree against the city in cause No. 1S131 is not res adjudicata of the right of the city or of adjoining owners to have the projecting portion of said building removed from the city street.
When and under what conditions the slight encroachment of a building or its appendages into a public street renders unmarketable the title to the area occupied by such building presents an interesting field of discussion. The New York courts, due perhaps to the density of population and consequent increasing value of the slightest area of soil, have explored the field to a greater extent than have the courts of any other state. Even in New York there has been a reversal of position on the part of the courts due in large measure to a reversal of policy on the part of municipalities with reference to encroachments. A well-edited annotation discussing the leading eases will be found in 57 A. L. R. 1451. One of the leading cases cited in the note is Acme Realty Co. v. Schinasi, 215 N. Y. 495, 109 N. E. 577, L. R. A. 1916A, 1176. For other instructive cases see Vassar Holding Co. v. Wuensch, 100 N. J. Eq. 147, 135 A. 88; Salter v. Beatty, 101 N. J. Eq. 86, 137 A. 848; Harrington Co. v. Kadrey, 105 N. J. Eq. 389, 148 A. 3; and Mertens v. Berendsen (Cal. App.) 292 P. 1005, reversed in an opinion reported at 213 Cal. 111, 1 P. (2d) 440, in which the Supreme Court of California reviews the leading New York cases.
But, for reasons to be disclosed, we do not find it necessary to determine generally the extent to which an encroachment on a public street of a privately owned building renders title thereto unmarketable, nor the proper limits to the effect of the decree against the city under the doctrine of res adjudicata. As hereinabove pointed out, the court instructed the jury to the effect that the decree against the city in cause No. 18131 fully and completely protected the possession, use, and enjoyment of the defendant and his successors in title. The defendant interposed only a general exception to this instruction. This general exception reserved no objection to the instruction, nor pointed out to the court any vice therein. James v. Hood, 19 N. M. 234, 142 P. 162; State v. Gonzales, 19 N. M. 467, 144 P. 1144; State v. Orfanakis, 22 N. M. 107, 159 P. 674; Spencer v. Gross, Kelly & Co., 22 N. M. 426, 163 P. 1087; State v. Carabajal, 26 N. M. 384, 193 P. 406, 17 A. L. R. 1098; Henderson v. Dreyfus, 26 N. M. 541, 191 P. 442.
It therefore became “the law of the case” (with such material bearing on the defendant’s right to damages for the encroachment as the circumstance to be mentioned might legitimately have) that the decree in question covering the projection of said building into the true line of the sidewalk 0.31 feet fully and completely protected “the posses sion, use and enjoyment of the defendant and his successors in title.”
Since the only evidence before the jury on the question of damages by reason of the encroachment related to the cost of removing the projecting portions of the building and restoring them on the true line, and the court in effect instructed the jury that, by virtue of the decree against the city, the defendant would be spared this expense, which charge became the law of the case, it is easy to understand the jury’s finding both in its general and special verdicts that the defendant was not damaged.
Actually, the specifications, which were made a part of the contract, made it the duty of the owner to establish lot lines, the contractor’s responsibility arising only if he failed to locate the building according to stake and grade given by the owner. The owner (defendant) did employ his private surveyor, who staked the lines, for the building. Both the contractor (plaintiff) and his superintendent of construction testified that the building was located on the exact lines established for them by the owner.
If the owner himself made a mistake in establishing lot lines, the contractor in following lines thus established would be free from liability to the owner. But here again is the case controlled by the accepted theory of its submission to the jury. Unquestionably, and without objection on the plaintiff’s part, the case went to trial and to the jury on the theory of plaintiff’s responsibility for damages for the encroachment, if damages should be found to exist. This is understandable from the frank statement in his brief by plaintiff’s counsel that ¡he.learned for the first time during the trial that the contract required the owner to establish lot lines, and that he did in fact establish them. So the verdict cannot be explained on the theory of a finding by the jury that it was the owner’s duty to establish the lines and that the contractor placed the building on lines thus established. The court did not so submit the case to the jury.
Considered, however, on the theory of its a'ctual submission, and taking it as the established law for this case that the defendant and his successors in title are fully and completely protected in the possession, use, aná enjoj'ment of said building as constructed, we can sec nothing wrong with the jury’s finding that defendant is not damaged by reason of the encroachment.
Nor do we find error harmful to defendant in the court’s denial of his motion, interposed wliezz the ease closed, to diszniss the complaint without prejudice to plaintiff’s right to bring a new action or to defendant’s right to recoup therein his damages by way of set-off or counterclaim. The motion was grounded on the view that the plaintiff, having alleged a full coznpliance with the cozitract in order to recover, must show either literal or substazitial compliance; that proof which disclosed the encroachment here shown of a portion of the building into the line of the sidewalk was not even substantial compliance.
In actions upon building contracts, a majority of the courts apply the doctrine of substantial performance without questioning the propriety of the form and action. 6 R. C. L. 969. The court below properly instructed the jury on the doctrine of substantial compliance as applied to contracts of this kind. Whether the contract has been substantially performed is a mixed question of fact and law, though'at times it presents itself as a matter of law. 10 Brit. Rul. Cas. 760. Ordinarily, the true measure of recovery is the sum stipulated in the contract less the damages sustained by the failure strictly to perform. See annotation at 23 A. L. R. 1435, supplemented in 38 A. L. R. 1383, and 65 A. L. R. 1297. These damages are, usually, the expense of making the work conform to the requirements of the contract. 10 Brit. Rul. Cas. 718 (765).
But where, as here, the breach claimed is not in the employment of shoddy materials or unskillful workmanship, but rather in making a defective alignment of the building resulting in a slight encroachment, and the jury returns a verdict of no damage (not illogical under an instruction that the decree mentioned affords complete protection to defendant’s possession, use, and enjoyment of ■the building as constructed), the error, if any, in the court having refused to permit defendant to litigate in another action the question of damage from the encroachment, is rendered harmless by the jury’s finding in this action that there is no damage.
These conclusions dispose of the case and direct an affirmance. Other points are relied upon and discussed, but they become unimportant, in view of the conclusions reached. The judgment appealed from will be affirmed, and it is so ordered.
WATSON, O. J„ and HUDSPETH and BICKLEY, JJ., concur.
ZINN, J., did not participate. | [
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ZINN, Justice.
James H. Simpson filed herein his petition for writ of habeas corpus, charging unlawful restraint by G. A. Eisher, the magistrate who committed him on a charge of murder in the first degree without bail. 'A petition for writ of habeas corpus was presented to the district judge, which was denied. No evidence was presented to this court, the petitioner submitting with his application the evidence taken before the examining magistrate, which included evidence for the defendant as well as the state.
The only question is whether the proof is evident or the presumption great that petitioner committed a capital offense within the meaning of 1929 Comp. St. § 35-304, and not entitled to bail under N. M. Const, art. 2, § 13.
The state relies on Ex parte Wright, 34 N. M. 422, 283 P. 53, and the petitioner represents to us in argument that his previous application to the district judge was probably denied because of the trial court’s inability to distinguish that ease from this. A word of explanation may be helpful.
In the Wright Case, as in this, we sat, not as a reviewing court, but in the exercise of our original jurisdiction, not superior to the district courts, but co-ordinate. The judgment and conscience of district courts are not to be hound by some rule we may seem to adopt for our own disposition of such cases. In the Wright Case we were at pains to say that we should not “endeavor to reduce the matter to formula.” We avoided discussion of the facts in order not to influence the trial. There was in that case some evidence of express malice. . It seemed quite probable that if murder was done at all, it wasi in pursuit of a preconcerted design 'and plan.
In applying the test as announced in Ex Parte Wright, supra, this court weighs the evidence and passes upon its conflicts; as a trial court, not in the manner of the application of the substantial evidence rule, but whether we would be justified in our conscience as a trial court in sustaining a verdict of murder in the first degree when returned by a jury.
The possible capital offense here involved is murder in the first degree. Mere malice aforethought is not enough to make out this crime. There must be “a thinking over with calm and reflective mind” (State v. Smith, 26 N. M. 482, 194 P. 869, 872), or a “fixed and settled deliberation and coolness of mind” (State v. Kile, 29 N. M. 55, 218 P. 347, 352). Since deliberation, thus defined, is what distinguishes the nonbailable offense from the bailable, it is of this particular fact that the proof must be evident or thq presumption great. Without prejudicing this case in any way, we are not satisfied that the proof of deliberation is so evident as to warrant us in denying bail.
We think it right to admit the defendant to bail.
It is so ordered,
WATSON, O. L, and SADLER. HUDSPETH, and BIOKLEX, JJ., concur. | [
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ZINN, Justice.
Inasmuch as the three questions presented for decision on appeal herein can be readily disposed of without a lengthy statement of facts, only such matters as necessary for an understanding of the opinion are here recited. The decision of each question will reflect the question presented. , . .
As to the first point, we have carefully examined the record, and, there being substantial evidence to sustain the finding of the lower court, this court will not weigh the evidence. This rule is too well established to require citation.
As to the second point, the appellant in the trial court contended that the state was entitled to interest from January 3,1923, and not from December 12, 1921, as it here contends in its second point, and it cannot now change its position and urge error. We cannot consider the proposition for the first time on appeal. This ruling likewise requires no-citation. ' . '
As to the third point presented, a brief statement of facts is essential to an understanding of the same. . , ■ ■
This suit is against the defendant corporations, as sureties on the bond of intervening defendant, G. V. Olayton, former county treasurer of Otero county, for the sum of $653.65, alleged to have been collected by the defendant Olayton as treasurer and not placed in the fund where such money belonged, and judgment was rendered in favor of the state in the sum of $398.80, together with interest thereon at the legal rate from September 5, 1928, b.eing the da.te demand was made on the sureties for reimbursement, and disallowed as to the remainder claimed.
It is well to note that the appellant introduced into evidence the proceedings had before the board of county commissioners relative to the items charged against defendant Olayton at which proceedings the auditor for the) appellant made the following statement: “These charges are found to be due to bookkeeping errors rather than intent to defraud the said County of Otero.”
Clayton relinquished his office to his successor on January 3,1923. An audit was subsequently made, and the errors discovered, a charge made against Clayton as principal, and a demand made upon the defendant corporations as his sureties on September 5, 1928. The sureties did not know of the charge against the principal until demand was made; no demand having been made on Clayton or his sureties to account for the amounts charged prior to the audit. The defendant Clayton at all times denied liability.
The issue presented is whether interest on the principal amount of the judgment is due from the date of the demand on the surety company defendants or from the date of the accounting by Clayton to his successor in office.
Counsel for appellant failed to cite but one authority in support of its contention that interest begins to run from the date of the accounting rather than from the date of the demand, and this case does not support the appellant’s theory. United States v. Patrik Denvir, 106 U. S. 536, 1 S. Ct. 481, 27 L. Ed. 264. The court there held that no interest was due even from the principal until refusal to respond to a lawful demand.
In attempting to arrive at a true rule in determining from what time interest is to be computed against the sureties' on a public official bond for misapplication of public funds, it has been necessary to examine many reported cases, some dating back to 1796 (see Perit, Executrix, v. Wallis, 2 Dall. (Pa.) 252, 1 L. Ed. 370), down to the recent case of Clark County v. Howard et al. (S. D.) decided June 26, 1931, reported in 237 N. W. 561, 563, including the cases cited in the note in 87 Am. Dec. 753, where the eases are discussed. AYe find that the question is one upon which the authorities are not in unison.
One line of authorities holds that interest is to be computed from the demand made upon the obligees. Lyon v. Clark, 8 N. Y. 148, 157; Mower v. Kip, 6 Paige (N. Y.) 88, 29 Am. Dec. 748, 751; State of Maryland v. Wayman, 2 Gill & J. (Md.) 254, 279; Leighton v. Brown, 98 Mass. 516; Walcott v. Harris, 1 R. I. 404; Bank of United States v. Magill, Fed. Cas. No. 929, 1 Paine, 661; Ives v. Merchants’ Bank, 12 How. 159, 164, 13 L. Ed. 936; United States v. Hills, Fed. Cas. No. 15,369, 4 Cliff. 618; Warner v. Thurlo, 15 Mass. 154; Pres., etc., of Bank of Brighton v. Smith, 12 Allen (Mass.) 243, 251, 90 Am. Dec. 144; Simmons v. Almy, 103 Mass. 33, 36; Boyd v. Boyd, 1 Watts (Pa.) 365; United States v. Curtis, 100 U. S. 119, 25 L. Ed. 571.
Other authorities permit the computation of interest from the time of the breach of the condition of the bond, irrespective of any demand made. United States v. Arnold, Fed. Cas. No. 14,469, 1 Gall. 348, 360, affirmed in 9 Cranch, 104, 3 L. Ed. 671; Tyson v. Sanderson, 45 Ala. 364; Carter v. Carter, 4 Day (Conn.) 30, 4 Am. Dec. 177; Washington County Ins. Co. v. Colton, 26 Conn. 42; Carter v. Thorn, 18 B. Mon. (Ky.) 613; Wyman v. Robinson, 73 Me. 384, 40 Am. Rep. 360; Harris v. Clap, 1 Mass. 308, 2 Am. Dec. 27; Brainard v. Jones, 18 N. Y. 36; New York Life Insurance Co. v. Seckel, 8 Phila. Rep. 92; Perit v. Wallis, 2 Dall. (Pa.) 252, 1 L. Ed. 370. The writer of the note in 87 Am. Dec. 754, states of the latter cases: “This second class of authorities seems to rest upon the best reason. .There is no reason why a demand should be required in the case of obligations by specialty any more than in the case of any other class of obligations. It may be very proper, in some cases, to require demand before interest should begin to run, as where the surety cannot otherwise become aware of the breach.”
However, the authorities examined, with one exception, only incidentally reach the question here involved, the main question being discussed is whether or not the surety should pay interest when such judgment for interest would exceed the penalty of the bond, which is not the question here. The cases examined where sureties are called to pay interest on the penalty of a public official bond, as in this case, hold that the interest commences when demand is made, and if no demand, then from the commencement of the suit on the bond; the courts deeming such commencement as a demand. See State v. Wayman, 2 Gill & J. (Md.) 254, 279; United States v. Hills et al., Fed. Cas. No. 15, 369, 4 Cliff. 618; Bank of the U. S. v. Magill et al., Fed. Cas. No. 929, 1 Paine, 661; United States v. Curtis, 100 U. S. 119, 25 L. Ed. 571, and the recent case of Clark County v. Howard et al., supra.
In the case of Clark County, v. Howard et al., supra, the Supreme Court of South Dakota, in holding that a surety should not be required to pay interest from the date of defalcation, but rather from the date of demand, said: “It seems particularly inept to say of a surety on an official bond, who not only does not know of the embezzlement but whose facilities for discovering that an embezzlement has been committed are so inadequate as compared with those of the obligee, that it was at fault in not paying the money from the time of the several acts of embezzlement.” The court goes on to enlarge upon the point that it would be unfair to charge with interest a person who had not in the-first place wrongfully acquired the money owing the plaintiff because, as he did not know that he held money due the plaintiff, he owed no duty to return it until apprised of the fact that the money was rightfully due the plaintiff.
Interest such as is sought in this case is-an element of damages for wrongfully depriving the plaintiff of the money due him. It cannot be justly argued that where the surety in good faith is ignorant of the principal’s defalcation, and no demand has been made-by the obligee, the detention of the money due the obligee is wrongful and interest as. an element of damages should under the circumstances be allowed from the date of the-principal’s defalcation. The basis of this-view is excellently stated in 17 C. J. 923, § 218, where it is said, citing a large number of authorities in the note: “Where one person holds money to the use of another, and is charged with a certain duty with regard thereto, and fails to make such application thereof as his duty requires, interest is to be computed on the sum soi held from the date of his failure to make the required application ; but, otherwise, in the absence of any misconduct on the part of the person holding the money to another’s use, interest will be allowed only from demand for its delivery to the person entitled thereto.”
On reason and logic, even "without precedent, it seems right that demand in this Case would appear to be necessary, for it is not a case where the surety would be likely to know of the default in the absence of notice of that fact, and the surety ought not to be held for more than the amount accrued from their own default in unjustly withholding payment after being notified of the default of the principal.
Without attempting to decide any other ease but this, we are of the opinion that the sureties cannot be charged witb interest until some notice was given them that a definite sum had been found due the state of New Mexico from Clayton by the proper accounting officer, which rendered the sureties liable, and until such demand there could be no right to interest on account of such breach.
The trial court having so held, we find no; error, and the judgment of the district court is therefore affirmed. It is so ordered.
.WATSON, O. J., and SADLER, HUDS-PETH, and BICKLEY, JJ., concur. | [
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HUDSPETH, J.
In the year 1920, A. C. Voorhees, appellant, was appointed guardian of the estate of Nelle Lucille Voorhees, his granddaughter, a minor, on the petition of Marie Anne Lowe, the mother of the infant. In the year 1922, appellant loaned the money of his ward to his son and signed the note himself, and appellant and his wife have since executed mortgages on 3,125 acres of land situate in Taos county, valued for taxation purposes at $1 per acre, to secure the payment of the note. Taxes on the land were delinquent at the time of the hearing and no interest had been collected on the Indebtedness, which was past due. Appellant admitted an indebtedness to his ward of the sum of $6,608.
After the marriage of the ward, Nelle Lucille Voorhees, and while she was in her nineteenth year, proceedings were commenced in her name by her mother as next friend, which resulted in an order of removal of appellant as guardian. From this order of the probate court an appeal was taken to the district court, where a trial de novo was had, and the district court, after requiring Marie Anne Lowe, the next friend, to give bond, entered its decree removing appellant as guardian and appointing Ernest D. Reynolds guardian of the estate of said Nelle Lucille Hay, and directed appellant to turn over to said Reynolds all of said minor’s estate, papers, etc. David G. Dwyer, one of the sureties on appellant’s bond as guardian, died prior to the commencement of removal proceedings.
Appellant maintains that, because of the marriage of his ward prior to the commencement of the removal proceedings, said proceedings were not properly instituted, first, because 1929 Comp. § 62-125, provides “the guardianship over men and women shall cease with their marriage, * * * ” and, second, that the husband became the next friend upon the marriage of his ward, and that the mother of the infant could not properly institute such proceedings. 1929 Comp. § 62-125, refers to guardianship of the person (Montoya de Antonio v. Miller, 7 N. M. 289, 34 P. 40, 21 L. R. A. 699), and has no application to the guardianship of estates of minors. The proposition that the husband is the only person who is qualified 'to act as next friend of a married woman under twenty-one years of age in matters affecting her separate estate is untenable. The interest of the ward is the first consideration of the court which has plenary power over persons suing for infants. A next friend may be removed and another substituted. 1929 Comp. § 105-202. The district court recognized the mother as next friend when she was required to give bond. Every presumption as to the regularity of the proceedings of the .district court will be presumed. Bent v. Mexwell L. G. & Ry. Co., 3 N. M. (Gild.) 227, 3 P. 721.
Appellant maintains that the evidence does not support the finding on which the decree of removal was founded to the effect that there was conflicting'interest be tween appellant and his ward. Appellant had failed to comply with the order requiring him to file a new guardian's bond, so apparently the only security the ward has is the mortgages on the land of appellant. The debt secured by the mortgages is past due. No interest had been collected, and the land pledged to secure the note had been allowed to become incumbered with tax liens. Foreclosure proceedings should have been commenced. The conflict of interest is apparent. It has been held that an order approving a loan of the ward’s money by the guardian to himself is void. Sowers v. Pollock, 112 Kan. 599, 212 P. 103, 104, 30 A. L. R. 458. There may be cases where the guardian has only the interest of his ward at heart in loaning the ward's funds to a member of his own family, but the practice is not to be commended, and such a loan should never be approved until the court has been satisfied by an independent investigation that the transaction is in the interest of the ward.
“A principle which has been universally recognized since the beginning was expressed by Lord Ellenborough in [Thompson v. Havelock] 1 Campbell, 528 [10 Revised Rep. 744], that ‘no man should be allowed to have an interest against his duty.’ ” Sowers v. Pollock, supra.
The decree of the district court will be affirmed ; and it is so ordered.
BICKLEY, C. J., and WATSON and SADLER, JJ., concur.
NEAL, J., not participating. | [
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WATSON, Chief Justice.
This is an appeal by the state from an order quashing an information which charged that appellant, “being the * * * proprietor of a * * * mercantile establishment, to-wit, a drug store, did * * * cause a male employee, * * * a registered pharmacist, to work and labor in said mercantile establishment for more than eight hours in a certain twenty-four hour day, * * * the said work and labor * * * not having been performed in an emergency case. * * * ”
The information is founded on Laws 1933, c. 149, which prohibits labor of male employees in mercantile establishments more than eight hours in a day or forty-eight hours in a week of six days.
The motion attacks the statute as repugnant to the due process clause of State and' Pederal Constitutions, in that it deprives both employer and employee of liberty of contract, and deprives the employee of his property right in his own labor. It further attacks it as violative of the equal protection clause of the Constitutions, in that the selection of mercantile establishments for such regulation is an arbitrary and unreasonable classification, not referable to the health, morals, or general welfare of the public or of the employers or employees thus restricted.
The learned trial judge, in sustaining the motion, rendered this brief opinion: “Ignoring the defects in grammar and language, we find the statute provides an eight hour day for ‘mercantile establishments’. The selection of mercantile establishments for regulation seems to be an arbitrary one of the sort which has been held invalid by all of our courts from’ the Supreme Court of the United States down. Counsel have not been able to find any case sustaining such a classification, and I believe none exists. Labor in a mercantile establishment has no such relation to the public health, safety, morals, or general welfare as to set it apart from other occupations for the purpose of regulation. It is hard to see why hours of labor should be regulated in mercantile establishments and not in factories, laun dries, foundries, dairies, bakeries, building trades, garages, and tbe like. Had tbe legislature, in keeping with the social trend of the times, made a sweeping enactment of an eight hour day for all wage earners in the state, this court would have viewed it with great sympathy, but there appears no ground for ascribing validity to the present act.”
Able counsel for appellee thus discusses the workings of the statute; “It will be noticed at the outset that this statute deals with male employees in mercantile establishments only. It makes no distinction as to the kinds of labor they perform. They may be bookkeepers, stenographers, clerks, drivers of delivery wagons, traveling salesmen or what not. The test sought to be applied is not what they do but who they work for. The proprietor of the business is not prohibited from working any number of hours he may choose. An employee who does exactly similar work for an employer who does not run a mercantile establishment is not prohibited from working any number of hours he may choose. A bookkeeper in a bank can work until midnight to balance accounts before the first of the month and be within the law; his brother who keeps books for a merchant next door will get his employer arrested if he does the same thing. Each may be working in surroundings exactly similar as to comfort, health and safety.”
Broadly, the question is whether the statute is a legitimate exercise of police power, or whether it violates rights which the Constitution has protected as against legislative deprivation.
Appellant, the state, interprets the opinion as a holding “that the classification by the legislature was arbitrary and therefore violated the law,” and says: “We assume the court had in mind the question of unwarranted discrimination.” Inquiry is then directed to the question whether the act denies the equal protection of the laws to employers and employees of mercantile establishments; the legislative power to make reasonable classifications is invoked; and it is contended that the constitutional guaranty is not violated unless protection afforded to one is denied to another in like circumstances. This matter of classification, it is said, is primarily for the Legislature; the judicial function being merely to inquire whether it is clearly unreasonable, and to resolve all doubt in favor of the statute.
These general principles we do not question, nor the authorities cited in support of them. If the statute can be brought within the police power, it may be, or it may not be, that it would withstand the objection of discrimination or class legislation. That question we pass. Another precedes it. Is the act within the police power?
“Due process” is the test. It is dual; that of the Federal Constitution (Amendment 14), a limitation upon state powers; that of our own Bill of Rights (article 2, § 18), the people’s limitation upon legislative power. Of the former, first.
The leading case cited by appellee is Lochner v. New York, 198 U. S. 45, 25 S. Ct. 539, 547, 49 L. Ed. 937, 3 Ann. Cas. 1133. There a state statute limiting daily labor in bakeries to ten hours was held to violate due process. Four of the nine justices dissented. But all, except perhaps Mr. Justice Holmes, agreed in principle; the difference being one of fact, whether the nature of that employment was such that the law could be sustained as a health measure. This appears not only on the face of the opinions themselves, but from a later pronouncement by Mr. Justice Harlan, one of the dissenters, then speaking for the court. Adair v. U. S., 208 U. S. 161, 28 S. Ct. 277, 52 L. Ed. 436, 13 Ann. Cas. 764.
Our statute cannot be distinguished from tjie New York enactment to the legal advantage- of the former. If this were the latest holding, we might well rest decision on such high authority. But we are reminded that law is a “progressive science,” particularly in cases of this character. We shall not assume, in considering “general welfare” as the basis of police power, that 1905 is 1933.
The Lochner Case has been frequently distinguished. By statutes which have -successfully resisted attack, numerous classes have suffered some impairment of liberty of contract, because, considering age, sex, the rigors or hazards of employment, or other matters, it was possible to relate the restriction to health, safety, morals, or other recognized object of legislative protection. As a precedent, it would now be an unsafe guide. But its importance as a leading case lies in the principles invoked, not in the particular application of them.
Not always, perhaps never, has the soundness of those principles been unanimously conceded in our highest court. Certain it is that there have always been jurists and scholars to challenge them. That they have so far survived can hardly be questioned. Many may contend that they should be overthrown. New will be heard to claim that they have been.
The fundamental principles are these:
First. “Liberty” embraces a man’s right to contract as he will or can regarding his hours of employment. He, not the government, is to determine the matter. To this extent individualism is in the Constitution. It may be that Mr. Justice Holmes was historically and scientifically right in opining that “a Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire.” Lochner v. New York, supra. Rightly or wrongly, ibis intent and result are in the Constitution, according to judicial decision.
Second. “Due process,” by which only the individual may be deprived of his liberty, does not have regard merely to enforcement of the law, but searches also the authority for making the law. An historical and scientific mistake may have been made in deviating from the more familiar idea that “due process” is matter of procedure only. Corwin, “The Supreme Court and the Fourteenth Amendment,” 7 Mich. Law Rev. 643. Nevertheless, by judicial decision, the first and fundamental step in the due process or procedure of depriving the individual of liberty is the enactment of a statute within legislative competency.
Third. The guaranty is not merely directory to the Legislature, binding its conscience only; a political right. It constitutes a legal right, assertable in the courts, and to be protected and preserved unless the contrary right asserted be superior. It is perhaps to be regretted that the- early warning of Mr. Justice Miller against “a perpetual censorship of state legislation” (Slaughter House Cases, 16 Wall. 36, 21 L. Ed. 394) has not been heeded. There may be force in the suggestion that an undue sensitiveness of the courts to constitutional right tends to lessen that of the Legislature; the latter feeling that it may safely and rightly relieve itself of, and throw on the former, the responsibility, often the odium, of overruling the will of the majority, or the will of the organized and active minority. Learned Hand, “Due Process of Law and the Eight Hour Day,” 21 Harv. Law Rev. 495. Yet, by judicial decision, a Legislature’s assumption of the power is not controlling as to its existence, and the courts must inquire whether a police regulation infringing individual liberty is unreasonable, arbitrary, or capricious.
In a recent article entitled “The National Industrial Recovery Act,” Professor Handler, of Columbia, suggests, as precedent for a possible overruling of the minimum wage decisions, “the Supreme Court’s change of attitude toward the regulation of hours of labor which it now permits.” In the footnote decisions are cited as “overruling Lochner v. New York.” XIX Am. Bar. Ass’n. Journal, 440.
“Change of attitude” aptly expresses the matter. That consists, as we see it, in a greater deference to Legislatures as the originators of state policy and the guardians of general welfare, more latitude to the police power, greater caution in labeling regulatory statutes as unreasonable, arbitrary, or capricious. Of an overruling of the Lochner Case, in the sense of departure from any of the principles just enumerated, we do not find the evidence.
On the contrary, that decision, as the exponent of .those principles, has been by the majority frequently reaffirmed, perhaps most emphatically and explicitly in Adkins v. Children’s Hospital, 261 U. S. 525, 43 S. Ct 394, 399, 67 L. Ed. 785, 24 A. L. R. 1238, decided in 1923. The dissenting opinions in that case emphasize the deliberation with which the majority approved those principles. Indeed, the dissenting opinion of Mr. Justice Brandéis, in New State lee Company v. Liebmann, 285 U. S. 262, 52 S. Ct. 371, 76 L. Ed. 747, while involving liberty to engage in a calling, rather than liberty to contract for one’s labor, is conclusive proof to our minds that the Lochner decision stands fundamentally as written.
Muller v. Oregon, 208 U. S. 412, 28 S. Ct. 324 , 52 L. Ed. 551, 13 Ann. Cas. 957, and Bunting v. Oregon, 243 U. S. 426, 37 S. Ct. 435, 61 L. Ed. 830, Ann. Cas. 1918A, 1043, are perhaps most frequently mentioned as detracting from the Lochner decision.
In the Muller Case, the assurance by Mr. Justice Brewer, for once writing for an undivided court, that Lochner v. New York was not questioned in any respect, has not seemed to set the matter at rest. The distinction, whether sound or not, is plain. The Lochner Case involved adult males, as does our statute. The Muller decision involved females. In the latter case the general right of male adults to contract freely is not only assumed, but is taken as the point of departure. The argument merely goes to distinguish the case of females.
Somewhat curiously, Mr. Eelix Frankfurter, after praising the “technique” of the Muller decision — presentation by counsel and consideration by the court of “authoritative data,” scientific fact, and opinion disclosing the “state of the art,” to establish the distinction- — finally rejects that distinction as based on scientifically demonstrated falsity, and urges that “we cease to look upon the regulation of women as exceptional, as the law’s graciousness to a disabled class, and shift the emphasis from the fact that they are women to the fact that it is incktstry and the relation of industry to the community, which is regulated.” “Hours of Labor and Realism in Constitutional Law,” 29 Harv. Law Rev. 353.
Muller v. Oregon may mark a shifting in emphasis “to community interests, the affirmative enhancement of the human values of the whole community — not merely society conceived of as independent individuals dealing at arms length wúth one another, in which legislation may only seek to protect individuals under disabilities, or prevent individual aggression in the interest of a countervailing individual freedom.” Id. But long subsequent to the Muller decision and to Mr. Frankfurter’s critique, in Adkins v. Children’s Hospital, supra, the majority of the Supreme Court not only reaffirmed the Lochner decision in its principles, but subscribed to an apparent doubt of Mr. Justice Sutherland whether the Muller Case would not have resulted differently if it had arisen subsequent to the “revolutionary — changes * * * in the contractual, political, and civil status of women. * * * ”
Bunting v. Oregon, supra, was thought by Mr. Chief Justice Taft, dissenting in the Adkins Case, to have overruled the Lochner Case sub silentio. It would be easy to fall into that view if the majority of that tribunal which may speak with authority and finality had not otherwise determined.
The court’s disavowal is not enough, however, on which to dismiss the Bunting decision. While it did not vary the principles of the Lochner Case, it must still havq consideration as precedent when attempting to apply those principles. A present assumption that the Adkins decision had overruled the Bunting Case would be no safer than the earlier assumption that the Bunting decision had overruled that of Lochner.
If Oregon could constitutionally restrict male adult labor in mills, factories, or manufacturing establishments to ten hours, why is not our statute equally within the police power? If the Supreme Court should be as deferent to the declared policy of this state as it was to that of Oregon, would it not sustain our statute?
There is of course a difference between a ten-hour working day and one of eight hours. It would 'be drawing a fine line, however, to hold it a legal distinction. The advance of opinion and practice toward shorter hours, in the sixteen elapsed years, may have absorbed some or all of the difference.
There is a difference between manufacturing and mercantile establishments. The Supreme Court of Oregon noticed it in its opinion. State v. Bunting, 71 Or. 259, 139 P. 731, L. R. A. 1917C, 1162, Ann. Cas. 1916C, 1003. It mentioned and relied somewhat upon the danger of accidents from excessive periods of toil “in factories where different kinds of machinery and facilities are operated under the present day high-pressure power.” Danger from the monotonous repetition of a single operation might have been mentioned. Still, as respects health and safety, the differences within each of these classifications are perhaps as great as those between them. No general classification could perhaps be set up in which this regulation would be less needed than that of mercantile establishments. Embraced within it, however, is the employment of a pharmacist, having a direct relation to public safety, and which in California is held subject to such regulation. In re Twing, 188 Cal. 261, 204 P. 1082.
The Legislature of Oregon was at pains to-preface its enactment with a declaration that no person should be allowed to work for wages, under any conditions or terms, for longer hours or days of service than is consistent with his health and physical well-being and his ability to promote the general welfare by his increasing usefulness as a healthy and intelligent citizen, and that more than ten-hours’ daily labor in mill, factory, or manufacturing establishment is injurious to health and physical well-being and tends to prevent, development of that degree of intelligence necessary to usefulness and desirability as-a citizen. In the federal decision the majority gave some weight to this declaration, or-finding; how much is not disclosed.
It seems, also, that in the Bunting Case-the principal attack by counsel was upon the proviso that employees might work overtime not to exceed three hours' in one day on condition of payment by the employer of 50-per cent, additional for the overtime. This feature of the act, it was contended, disclosed that it was, in purpose and effect, a wage law rather than a health measure. The opinion is-largely given over to refutation of that contention.
Practically, it is but a step from the Oregon statute to ours. It cannot be said with assurance that if our statute were legislatively labeled, as the Oregon statute was, as. a health measure, and had the approval' of this court as such, the federal tribunal would invoke the distinctions between ten hours and eight hours, and between manufacturing and mercantile establishments, to strike it down.
Yet later decisions, notably the reaffirmance of principles in the Adkins Case, suggest that the high tide of deference to state policy and of permitted encroachment upon liberty of contract, in the matter of hours of employment, was reached in the Bunting Case. We consider the Oregon statute to have been upheld, not upon the ground, urged by its Supreme Court, that compulsory leisure tended to promote the general welfare by affording opportunity for intellectual improvement of the citizen as a voter, juror, and (in Oregon) legislator, but on the ground that its claim to be a health measure was not palpably false.
In our weighing of the federal authorities and question, where the scales are so delicately balanced as between the police power of the state and the federal guaranty of due process, we may easily be mistaken. If that were all, we might perhaps best sustain this exercise of state power, as did the Supreme Court of Oregon, leaving appellee to vindicate his right under the Fourteenth Amendment in that tribunal which must finally determine it.
But our responsibility does not here end. With us due process is a state question as well. In this we differ from Oregon. In 1910, we placed it in our Bill of Rights. There the individual’s liberty and property are recognized and protected, side by side with his rights to trial by jury, to freedom of speech and of worship, and to be secure from unreasonable -searches and seizures. We used the exact language of the Fourteenth Amendment. While, according to the well known principle, we did .adopt, with the language, the interpretation it had received, and while we would naturally go with the federal tribunal in the development of the law of due process, still the federal question and the state question are not necessarily the same.
The circumstances under which Congress submitted and the states ratified the Fourteenth Amendment are quite different from those under which the people of New Mexico adopted our Bill of Rights. The former were such as to give rise to the ever-recurring questions as to the meaning of “due process” as used in the amendment, and the extent and nature of the state censorship thus set up. Corwin, “The Supreme Court and the Fourteenth Amendment,” supra.
No such question bothers us. This clause is in our Constitution as the people’s voluntary and studied limitation upon its Legislature. We could have had no purpose except to check the Legislature, as representing the majority for the time being, from encroachment upon this reserved right of the minority or of the individual. Those who complain of such checks are out of sympathy with constitutional government itself.
No one could have voted for our Constitution in the belief that the guaranty of life, liberty, and property did not limit legislative power, or that due process meant merely no tice and the opportunity to he heard, or that the clause was merely directory to the Legislature and not a mandate to the judiciary. Those who held such views no doubt voted against the Constitution. When they become the majority, they may amend it; a very different, and much simpler, matter than amending the Pederal Constitution.
The statute before us bears no evidence of a legislative purpose by it to safeguard health, morals, or 'safety. No claims are here made that it was so intended or will so result. Pacts of which we may take judicial notice, and none other are before us, do not argue, and we are unable to conclude, that the health, morals, or safety of the general public or of the class regulated are at all involved in the sustaining or the overthrow of the act; or that there is involved any other specific object for which we have become accustomed to some yielding of the principles of personal liberty and of private property.
That is not necessarily fatal to the statute.. The polic4 power is necessarily expansive. It must. meet new conditions and standards. On the other hand, “liberty” is contractive. It is not an absolute thing. Any government at all encroaches upon it. “Liberty restrained by law” is our tradition.
The power to regulate the conduct of the individual for the common good, the police power, has never been bounded, and never will be. As said by Mr. Chief Justice Taft, 'dissenting in Adkins v. Children’s Hospital, siipra, the courts have been “laboriously engaged in pricking out a line in successive cases.” No jurist has ever attempted to enumerate all the specific objects for which the power may bd legitimately invoked. To such enumeration as definitions include, by way of illustration, there is always added “the general welfare.”
Why, then, if the Legislature considers shorter hours of employment a good, may it not compel them,-in its care for the general welfare ?
If “general welfare” stands in these definitions, or explanations rather, on the same footing as health and safety, it will be difficult to answer the question. Any public legislation may and no doubt should be presumed to promote the general welfare. If the term be given its broad and usual meaning, there is no limit to the legislative power to regulate the individual except the legislator’s oath and the possibility that the judge may disagree as to what is reasonably for the general welfare. But if such is the meaning of the term and definition, there is no point to the enumeration of specific objects, such as health and safety. The general expression would embrace those and all others. The general term, following the enumeration of specific objects, implies merely an inability better or more completely to define the police power. It does not of course mean that it is unlimited.
As conditions and standards have changed, courts have admitted regulations as reasonably related to the general welfare which would not formerly have stood the test. Other specific objects have been and may 'again be added to health and safety. By this process liberty shrinks correspondingly as the police power expands. But it remains as a controlling principle.
This suggests the limit which may safely be set for the expansion of the police power. It may embrace more and more specific objects. It cannot destroy the principle. The object to be accomplished must not be merely to destroy liberty as an evil. The regulation must tend to some ulterior good. The deprivation of liberty must be incidental, not itself the substantial and direct end.
We are unable to find any ulterior purpose in this statute. It merely regulates hours, as an end in itself. We do not overlook arguments in favor of regulation. It may be contended that the shortest possible hours of toil are a social good, or that a wider spread of employment is good, economically and socially. These arguments favor regulation as .against liberty. Regardless of their merit, they are inadmissible. The people considered that question in 1910, and decided in favor of liberty. Whether liberty or regulation the better promotes'the general welfare is a question to arise when it is proposed to amend the Constitution. That is the “due process” called for.
A final question not unnaturally arises. In the minds of many the present widespread evil of unemployment is so great as to require or justify extraordinary measures by government. Revolution even is feared by some as a consequence of failure or inability to alleviate it. This suggests inquiry as to the so-called emergency powers of government.
The act bears on its face no evidence that it is the Legislature’s plan for meeting an emergency. It contains no recitals or findings. Emergency was not declared, even for the purpose of giving it immediate effect, It was not declared to be for the “preservation of the public peace, health or safety,” as bearing upon the people’s reserved power to disapprove, suspend, and annul it. Its operation is not limited to the duration of any emergency. It stands as permanent state policy.
As a means of combating unemployment, the particular measure is very narrow. A serious attack upon the evil by this method would have taken wider range. It contains no provisions, such as are now familiar, fox-insuring the to be desired resultant of more jobs. Mercantile establishments might quite generally meet the situation by remaining open for shorter hours, or by staggering. The shorter hours compelled might result in proportionate decreases in wages. In that case, the net result would be merely to take from ohe to give to another.
So we find the evidence before us insufficient to warrant bringing into question any emei-gency powers, the state may have to preserve its own existence and the peace and safety of the people. The nature and extent of such powers we do not consider here.
The jxxdgment will be affirmed, and the cause remanded.
It is so ordered.
SADLER, HUDSPETH, BICKLEY, and ZINN, JJ., concur. | [
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WATSON, Chief Justice.
Appellant, a Masonic Lodge incorporated under 1929 Comp. St. § 32-506, authorizing the organization of “a corporation for religious, benevolent, charitable, scientific or literary purposes, or for the establishment of colleges, academies, seminaries, churches or libraries,” sues to enjoin collection of taxes assessed upon the Masonic Temple owned by it at Albuquerque. Its single contention is that said property is “used for educational or [and] charitable purposes,” within the meaning of N. M. Const, art. 8, § 3, and is accordingly exempt from taxation.
The material findings may be thus summarized:
According to appellant’s articles of incorporation, it is a fraternal, benevolent, and charitable corporation. The property assessed consists of certain lots, and the Masonic Temple thereon, consisting of lodge, halls, clubrooms, offices, dining room, cloakrooms, etc., used as the meeting place for the members of appellant lodge, another Masonic Lodge, a chapter of Royal Arch Masons, a Commandery -of Knights Templar, a Temple of the Order of Mystic Shrine, and for the organizations De Molay, Job’s Daughters, Eastern Star, and White Shrine; 'the facilities of the building being primarily for the use of Freemasons and their families in which to carry on the functions, work and objects of Masonry.
Appellant issues no capital stock, declares no dividends; -its members derive no pecuniary profits from its operation, and are guar anteed no benefits of any kind. Appellant’s revenues come from $12 annual dues, paid by its approximately eight hundred members, from initiation fees, from contributions in the nature of rent from some of the other above-mentioned Masonic bodies, and from gifts, devises, and bequests. Aijpellant’s ownership ■of the property is in the nature of a trust. It is a constituent of the Grand Lodge of Masons of New Mexico, to which all of its property would devolve in the event of its dissolution.
We quote now" findings 11 and 12:
“The educational feature of plaintiff’s work consists of a course of training in Freemasonry by class room methods. The fraternity is in itself a system of teaching, designed to make men more efficient in their professions, more useful to society, better in morality, and more faithful citizens. The Masonic ritual itself is a system of teachings of a historical, philosophical, ethical, resthetie, and religious character. These teachings are binding on every member. One purpose of the lodge communications is continuously to expound and explain and enforce these teachings among its members. The literature of Masonry deals largely with all general cultural purposes and is made public. The lodge has lecturers and other speakers who speak on various occasions on many subjects of general importance, and distributes literature to its members and fosters loans of money to students to help them pursue their college courses.
“The charitable feature of plaintiff’s work consists of relief to fellow members in need by individual members of the lodge. If the individual cannot meet that need it is referred to the lodge. If it exceeds the lodge’s ability, the case is taken up by the Grand Lodge. The whole Masonic system is organized between the grand jurisdictions so as to give relief to every case where needed.' Nothing is left to chance or caprice or accident. The lodge gives financial, medical, surgical or other aid to needy wives, widows and dependents of members, shares in supporting public charities, gives welfare service to many in hospitals and sanatoriums, helps to send children to the Shriner’s Crippled Children’s Hospitals, and gives relief in public calamities, such as the Mississippi and Galveston floods and the Florida tornado.”
The trial judge refused the following requested finding No. 9:
“Plaintiff devotes its money to defraying the expenses and upkeep of its property, to pay the indebtedness thereon and for charitable, educational, social and fraternal purposes, and to carry out its civic duties to the community.”
As we understand, however, the difference between the court and counsel was in the characterization of the purposes as “charitable, educational, social and fraternal.” We do not think that the court meant that there was any use of appellant’s money other than in defraying the expenses and upkeep of its property, paying the indebtedness thereon, and for the appropriate objects of Masonry, whether deemed mainly educational, charitable, or social.
The question before us is whether the learned trial judge was warranted, in view of these findings, in a refusal to conclude that the property is used for educational and charitable purposes, and entitled to exemption. This depends upon the meaning of the constitutional provision just referred to:
“The property of the United States, the state and all counties, towns, cities and school districts, and other municipal corporations, public libraries, community ditches and all laterals thereof, all church property, all property used for educational or charitable purposes, all cemeteries not used or held for private or corporate profit; and all bonds of the state of New Mexico, and of the counties, municipalities and districts thereof shall be exempt from taxation.” Article 8, § 3.
It should be noted at the outset that few states have constitutional or statutory provisions more favorable to a claim of exemption under facts such as we have here, and that most states have less liberally provided.
Educational or charitable use, or ownership by educational or charitable organizations, are common grounds of exemption. But generally some qualifying language has been employed, such as “exclusively used,” “devoted to the sole use,” “public charity,” or “purely public charity.”
Where such modifying expressions have been employed, judicial opinion appears divided, though a weight of authority could perhaps be claimed in favor of exemption. But where the controlling statutory or constitutional provision approaches ours in liberality, and upon similar facts, .there can scarcely be said to be a difference of view. The following decisions seem to us to support appellant’s contentions: Ancient and A. S. R. of Freemasonry v. Bd. of County Com’rs, 122 Neb. 586, 241 N. W. 93, 81 A. L. R. 1160, holding a Scottish Rite Temple exempt as “property owned and used exclusively for educational, religious, charitable * * * purposes, when * * * not owned or used for financial gain or profit to either the owner or user”; Morrow v. Smith, 145 Iowa, 514, 124 N. W. 316, 26 L. R. A. (N. S.) 696, Ann. Cas. 1912A, 1183, holding a devise to a Masonic Lodge exempt from collateral inheritance tax,' as made to a “charitable institution”1 (see Ann. Cas. note); Horton v. Colorado Springs Masonic Bldg. Soc., 64 Colo. 529, 173 P. 61, 62, L. R. A. 1918E, 966, holding a Masonic Temple exempt, as “used solely and exclusively for * * * strictly charitable purposes” ; Board of Com’rs v. San Luis Valley Masonic Ass’n, 80 Colo. 183, 250 P. 147; Cumberland Lodge v. Nashville, 127 Tenn. 248, 154 S. W. 1141, 1143, holding Masonic property exempt as “property belonging to any * * * charitable * * * or educational institution * * * used exclusively for the purpose for which said institution was created” ; In re Masonic Temple Society, 90 W. Va. 441, 111 S. E. 637, 639, 22 A. L. R. 892, holding the property exempt as used “for educational, literary, scientific * * * [or] charitable purposes” (see note); Salt Lake Lodge v. Groesbeck, 40 Utah, 1, 120 P. 192, 193, Ann. Cas. 1914C, 946, holding an Elks Lodge and club rooms exempt as “used exclusively for * * * charitable purposes.”
The decisions cited and relied on by appellee will be found listed in the annotation, “Exemption from taxation of propei'ty of fraternal or relief association,” in 22 A. L. R. under the heading, “Cases holding property not exempt,” at page 912.
Included in this list are certain decisions involving mutual benefit societies, and associations of that nature, wherein the principles involved' are obviously different. Such are State Council of C. K. of I. v. Bd. of Rev., 198 Ill. 441, 64 N. E. 1104; National Council of Knights & Ladies of Security v. Phillips, 63 Kan. 799, 66 P. 1011; National Council of Knights & Ladies of Security v. Phillips, 63 Kan. 808, 66 P. 1014; Life & Annuity Ass’n v. Shilling, 86 Kan. 290, 120 P. 548; Royal Highlanders v. State, 77 Neb. 18, 108 N. W. 183, 7 L. R. A. (N. S.) 380.
These cases are fairly distinguishable because of the more restrictive form of the exemption: Grand Lodge F. & A. M. v. Taylor, 146 Ark. 316, 226 S. W. 129; Lacy v. Davis, 112 Iowa, 106, 83 N. W. 784; Mason v. Zimmerman, 81 Kan. 799, 106 P. 1005 ; Summunduwot Lodge v. Spaeth, 81 Kan. 894, 106 P. 1077; Vogt v. City of Louisville, 173 Ky. 119, 190 S. W. 695, Ann. Cas. 1918E, 1040; Merrick Lodge v. City of Lexington, 175 Ky. 275, 194 S. W. 92; St. Louis Lodge v. Koeln, 262 Mo. 444, 171 S. W. 329, L. R. A. 1915C, 694,, Ann. Cas. 1916E, 784; Scottish Rite Bldg. Co. v. Lancaster County, 106 Neb. 95, 182 N. W. 574, 17 A. L. R. 1020; Washington Camp v. Bd. of Equalization, 87 N. J. Law, 53, 93 A. 856; Sioux Falls Lodge v. Mundt, 37 S. D. 97, 156 N. W. 799, 2 A. L. R. 542; City of Houston v. Scottish Rite Benev. Ass’n, 111 Tex. 101, 230 S. W. 978; In re Linen & Woollen Drapers Inst., 58 L. T. (N. S.) 949.
Whe.ther the exemption for property, used for charitable purposes, includes property leased if the rentals be so used, is a question not necessary to decide here. Such was the question in La Fontaine Lodge v. Eviston, 71 Ind. App. 445, 123 N. E. 468.
Some of the cases may be dismissed as clearly not in point, or of slight, bearing. Attorney General v. Detroit Common Council, 113 Mich. 388, 71 N. W. 632; Ridgeley Lodge v. Redus, 78 Miss. 352, 29 So. 163; State v. Central St. L. Masonic Hall Ass’n, 14 Mo. App. 597; Grand Lodge v. Sarpy County, 99 Neb. 647, 157 N. W. 344.
This is not to say that the decisions we distinguish contain nothing of value in coixsideration of the present question; merely that they cannot serve as precedents.
Bangor v. Masonic Lodge, 73 Me. 428, 40 Am. Rep. 369, decided in 1882, held, on principles of strict construction, that the word “charitable” in the exemption statute must be interpreted as “public charity,” and hold that the fact that members oixly were the objects of the order’s charity or benevolence was fatal to its claim to be a “charitable institution.” The latter holding is clearly contrary to present authority, including a number of decisions in which the exemption has been disallowed. Ancient and A. S. R. of Freemasonry v. Bd. of County Com’rs, supra, and cases cited. Mason v. Zimmerman, supra; City of Houston v. Scottish Rite Benev. Ass’n, su pra; In re Masonic Temple Society, supra, and eases cited.
Washington Camp v. Board of Equalization, 87 N. J. Law, 53, 93 A. 856, distinguished supra, suggests that the ritualism and secrecy of the order raise a fair inference that the body is essentially social in its character and purposes; a doctrine which we have found no other court to espouse.
Scottish Rite Bldg. Co. v. Lancaster County, distinguished supra, is strongly relied on by appellee. We might disregard it, since it has been overruled by the recent (1932) decision in Ancient and A. S. R. of Freemasonry v. Bd. of County Com’rs, cited supra. In this overruled case, the court rejected the claim of exemption largely on the ground on which the trial judge here placed his decision —-that the primary function and purpose of the lodge, or at least the primary use of the property, was social; as the Nebraska case put it, “gratifying the taste of its own members.” Even if it were still authority, we think its facts would fairly distinguish it from the case at bar. This is true also of Elks, Green Bay Lodge, v. City of Green Bay, 122 Wis. 452, 100 N. W. 837, 106 Am. St. Rep. 984; Boston Lodge v. City of Boston, 217 Mass. 176, 104 N. E. 453; and St. Louis Lodge v. Koeln, distinguished supra. In those cases, it was the view of the several courts that the proven use of the property as a club overshadowed its use for charitable purposes, so that the latter was to he deemed incidental.
In addition to these cases, appellee cites and relies strongly on the recent (1932) ease of Conrad v. Maricopa County (Ariz.) 12 P. (2d) 613. Arizona’s statute (Rev. Code 1928, § 3086) provides: “ * * * All property shall be subject to taxation, except * * * hospitals, asylums, poor houses, and other charitable institutions for the relief of the indigent or afflicted. * * * ”
The rule of ejusdem generis was necessarily decisive. It could not well be maintained that the ordinary fraternal and benevolent order is a “charitable institution” of a class with hospitals, asylums, and poor houses.
Where the exemption is expressed in the more limited form, the question may be said to be close. As illustrating this, we note the curious fact that at the very moment the Supreme Court of Nebraska was overruling Scottish Rite Bldg. Co. v. Lancaster County, relied on by appellee, and distinguished supra, in Ancient and A. S. R. of Freemasonry v. Bd. of County Com'rs, relied on by appellant, and cited supra, the Supreme Court of Illinois was overruling its very recent (1931) People v. Freeport Masonic Temple, 347 Ill. 180, 179 N. E. 672, in People v. Dixon Masonic Bldg. Ass’n, 348 Ill. 593, 181 N. E. 434. Illinois and Nebraska simultaneously adopted each other’s theories, -each abandoning its own.
This glance at the authorities is quite persuasive that appellant, upon the findings and under our broad constitutional exemption, uses the property in question for educational and charitable purposes.
But appellee invokes the familiar doctrine that taxation is the rule and exemption the exception, that, accordingly, he who. claims exemption must overcome a presumption, and that the provision of law invoked by appellant is to be strictly construed. That general doctrine is not strange to this court. United States Trust Co. v. Territory, 10 N. M. 416, 62 P. 987; New Mexico v. U. S. Trust Co., 174 U. S. 545, 19 S. Ct. 784, 43 L. Ed. 1079; Samosa v. Lopez, 19 N. M. 312, 142 P. 927; State v. Bd. of Trustees, 28 N. M. 237, 210 P. 101; Berger v. University of N. M., 28 N. M. 666, 217 P. 245; Oden Buick, Inc., v. Roehl, 36 N. M. 293, 13 P.(2d) 1093.
But where the exemption is for the promotion of religious, educational, charitable, or similar objects, deemed beneficial to the state, and to afford a quid pro quo, an exception has frequently been declared. For expositions of this doctrine and collections of authority, see Horton v. Colorado Springs Bldg. Society; Cumberland Lodge v. Nashville; Salt Lake Lodge v. Groesbeck, all hereinbefore cited; People v. Farrell, 130 Misc. 142, 223 N. Y. S. 660; and Cooley on Taxation (4th Ed.) § 673.
In Ancient and A. S. R. of Freemasonry v. Bd. of County Com’rs, cited supra, it was said that the rule .of strict construction “does not mean that there should not be a liberal construction of the language used in order to carry out the expressed intention of the fundamental lawmakers and the Legislature, but, rather, that the property which is claimed to be exempt must come clearly within the provisions granting such exemption.”
Counsel for appellee urge upon us that we are committed against this more liberal view by State v. Bd. of Trustees and Berger v. University of N. M., supra. In the case first mentioned, it is true, one ground of exemption claimed was that the lands of the Las Vegas grant were used for educational purposes. It may be doubted from the opinion whether what was said about strict construction was meant to apply to that ground. If so meant, it was scarcely needed to sustain the conclusion there arrived at, that property not used for educational purposes was exempt for the mere reason that, if some time sold, the proceeds would become school funds. In the Berger Case, the rule of strict construction was “recurred to” as a general principle, and educational use was involved. If it be strict construction to hold, as this court there did, under the territorial statute, not under the Constitution, that property not in use at all, was not used or “devoted exclusively” to educational purposes, the decision would still afford but a poor measure of the degree of strictness to be applied in this or other cases.
From the standpoint of local authority, the matter stands thus: In two decisions not requiring strict construction for their support, this court has invoked the general doctrine, without noticing the exception above noted or the reasoning underlying it. Such broad pronouncements are not controlling. They are not highly persuasive.
The canon of strict construction, like others, is often helpful; sometimes of little use. It is very general. If admitted that construction is to be strict, the question remains, How strict? It serves merely to'broaden the field of discussion and of authority; the orig Inal and .primary question being, How charitable or how educational must be the uses?
In the case at bar, we are to construe an exemption created by fundamental law. Unlike most constitutional exemptions, it does not merely define a field of exemption, within which the legislative power may operate from time to time at its discretion. It is affirmative and self-executing. It creates exemptions. It invests citizens with constitutional rights, which administrative officers or Legislature may not impair, and which courts must protect. Generally, such rights are not to be frittered away by a construction so strict as to be unreasonable or harsh. Of course, they are not to be so enlarged as to create rights which the Constitution makers did not contemplate. In short, the canon of strict construction cannot afford a sure formula for the decision of this case. It is scarcely more difficult to determine what uses are educational or charitable than to determine what construction is strict. Our problem is to ascertain the reasonable and probable intent.
No one denies that the property is used for educational and charitable purposes. The contention is that those uses are not- exclusive of a certain amount of social enjoyment and gratification; that the educational advantages are not open to nonmembers; that the charity is ordinarily and preferably, though the evidence shows not necessarily or entirely, confined to members and their families; that the real object of this lodge and the main use of its property is fraternity, rather than charity or education. That is to demand that the Constitution be interpreted as if it said that the property must be used exclusively for purely public educational or charitable purposes. As we have seen, authority and precedent would strongly support appellant’s claim, even if our Constitution were so framed. The omission of such qualifying phrases, so generally used, seems significant.
Not only did our Constitution maker's depart in method and phraseology from systems of exemption common in other states; they departed considerably and significantly from the then existing territorial system, with which certainly they were familiar. The exemptions as of territorial days still appear in 1929 Comp. St. as section 141-110. Though compilers have traced its origin to the General Appropriation Act of 1891 (chapter 94, § 7), it dates back, as to all features here important, to Laws 1882, c. 62, § 3. It reads:
“141-110. Tire following property shall be exempt from taxation: Property of the United States and of this state, counties, cities, towns and other municipal corporations, when devoted entirely to public use and not held for pecuniary profit; all public libraries, the grounds, buildings, books, papers and apparatus of literary, scientific, benevolent, agricultural and religious institutions and societies, when the property of the said institutions and societies shall be devoted exclusively to the appropriate objects of such institutions and not leased or rented or otherwise used with a view to pecuniary profit; irrigating ditches, canals and flumes belonging to communities and used exclusively for irrigating lands, without any charge or compensation lor the same or for the water thereof, except the necessary work and charges to keep the same in repair; and cemeteries not held and used for pecuniary profit.”
A comparison of this with the constitutional provision which supplanted it discloses an elimination of those qualifying expressions which we are now asked to apply as if they had been retained. The elimination must have been deliberate and studious. The conclusion is natural, and not readily to be avoided, that a purpose existed to extend the field or liberalize the policy of tax exemption.
Formerly, “the grounds, * * * books, papers and apparatus of" literary, scientific, benevolent, agricultural and religious institutions and societies” wore exempt “when the property of the said institutions and societies shall be devoted exclusively to the appropriate objects of such institutions and not leased or rented or otherwise used with a view to pecuniary profit.” Does the omission of literary, scientific, and agricultural societies indicate that they have lost their ex-einption? We think it more reasonable to conclude that the new term “educational” was thought to include them; thus suggesting that schools and colleges are not the only means of education. “Benevolent” is perhaps more appropriate than “charitable,” as applied to the fraternal orders. But the terms have frequently been held synonymous in this connection. While both use and ownership were formerly requisite, use alone now suffices. The use must formerly have been exclusive of purposes inappropriate to the objects of the societies and institutions, apd free from the taint of pecuniary profit. Such limitations no longer exist, at least not as arbitrary and controlling limitations.
An early interpretation (May 19, 1912), by former Attorney General Clancy, held St.' Joseph’s Sanatorium of Silver City exempt, though “most of the patients * * * pay for their care and treatment.” Referring to the constitutional provision (then article 8, § 7), he said: “This is a positive, affirmative provision which needs no legislation to make it operative. The exemption would extend to any hospital which is used for charitable purposes even though at the same time accommodations may be provided for patients who are able and willing to pay for care and treatment. I understand that the hospital referred to * * * is primarily of a charitable character and whether much or little charitable work is done I believe that it falls within the constitutional exemption and that its property, used for charitable purposes, cannot be taxed.” Opinions of Attorney General, 1912-13, p. 36.
Authority is not wanting to support this view, as will appear from a reading of the decisions herein cited.
We understand from the arguments that the property of the fraternal orders used for lodge purposes has been generally, perhaps uniformly, exempted, and • that the present assessment and suit were designed to test the question of constitutional right. In view of this early and consistent interpretation ■and practice, the fact is worth considering that the 1913 Legislature proposed (Laws 1913, p. 170) a complete revision of the original article 8 of the Constitution, entitled “Taxation and Revenue,” in which the old section 7 was embodied, without change, as section 3, and that the people adopted the same at the election of November 3, 1914.
This early interpretation and uniform practice is highly persuasive, if not controlling. The principle is familiar that, in a case of doubt, courts will sustain the reasonable construction long and uniformly followed by the co-ordinate branches of the government. It is not comity alone that dictates this rule. It is because of the unfortunate and far-reaching results often produced by a ■ judicial decision rendering illegal what has been theretofore recognized as legal. If this rule were not generally observed, legal decisions might, by their upsetting results, do more harm than good. In such eases it is deemed wiser to leave the desired reform to the political departments which can minimize the consequences of change by limiting its results to the future.
Opinion will greatly differ as to the wisdom and sound policy of exempting property used for purposes of fraternal orders. Much opinion, which was not aroused before, will deprecate the policy, now that the need fox-revenue is so great, that its sources are drying xxp and that taxing authorities are struggling to stop leaks. But, as the courts must view it, the policy, whatever it is, is fixed. The policy of 1910 and of 1014 is that of 1932. This is not a case where the broad language of a Constitution may be adapted to changed times and conditions. The Legislature, to say nothing of the courts, may not impair the constitutional right of exemption so far as expressed in section 7,' now section 3.
The broad expression “used for educational or charitable purposes” necessarily imposes upon the courts a severe task of interpretation. It is easy to instance purposes clearly within it. It is not difficult to suggest instances which would reduce to absurdity a rule too liberal. Appellees point out that the •ordinary home is customarily used for educational purposes and often for charitable purposes. In a broad sense, a golf professional, a riding master, or a boxing instructor, is engaged in education. Charity may “cover a multitude of sins.” The line of demarcation c-annot be projected. It can take shape only by the gradual process of adjudicating this or that purpose or use on the one side of it or on the other, or by change in the constitutional criteria.
The present decision is reached upoix the present record. We lay down no general rule as to fraternal orders or as to Masonic Lodges generally. We do not prejudge the case where the educational or charitable purposes may seem but professions or cloaks for exemption, while the real and substantial use may seem to be ostentation and indulgence. But charity and education are no less effective, and sometimes more so, when their austere qualities are coated and hiddexx by fraternal and social intercourse. The strictness herein demanded by appellee might open a serious question as to whether some of the more sue cessful and useful churches could qualify as religious societies.
In deciding the case, the learned trial judge said: “Our Constitution says that all property used for educational or charitable purposes shall be exempt. It is true we cannot read into that the word ‘exclusively,’ we cannot read into it all property used exclusively for charitable purposes, but neither can we read into it the phrase ‘incidentally’ or ‘occasionally.’ We cannot make it read ‘all property used incidentally for charitable purposes’ nor can we make it read ‘all property used occasionally for charitable purposes’ or ‘all property used from time to time for charitable purposes.’ I think the words must be given a common sense construction — that the section means all property used primarily or substantially for charitable purposes shall be exempt.”
We find no fault with the idea that the educational or charitable use must be both substantial and primary. But, under the facts in this case and our views of the law, we are of opinion that the use here shown entitles appellant to the exemption claimed and to the relief sought.
The judgment will accordingly be reversed, and the cause remanded, with direction to award the injunction prayed for. It is so ordered.
SADDER, HUDSPETH, and BICKDEY, J.T., concur.
ZINN, J., did not participate. | [
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SADLER, Justice.
The relators, James D. Hannah and Robert L. Riddle, as members of the board of education of the Santa Rosa independent school district, seek to prohibit Luis E. Armijo, as judge of the fourth judicial district of the state of New Mexico, sitting within and for the county of Guadalupe, from entertaining further jurisdiction in a proceeding pending before him having for its object their removal from office as directors of said school district.
The removal proceedings were instituted by the district attorney of said district under the authority of chapter 90, N. M. Statutes Annotated, 1929 Comp., and particularly §§ 96-105, 96-106, 96-123 and subsequent sections, and are based upon the verified petition of one Isidro L. Anaya, a resident taxpayer of the town of Santa Rosa in said county. Upon the filing and reading of said petition, charging gross ineompetency and gross negligence against relators in the performance of the duties of their offices, the respondent herein as judge of said court issued an order against relators commanding them to show cause before him at a time fixed, why they should not be suspended from office, as by statute authorized, pending final hearing in the matter.
It was at this stage of the matter that further proceedings before said judge were halted by an alternative writ of prohibition issued out of this court. The matter now comes before us upon application of relators to make said writ absolute. The first point urged by them goes to the sufficiency of the allegations of incompetency and negligence as set out in the accusation or petition filed before said district judge. Obviously this is not a matter in any manner questioning his jurisdiction to hear the cause. Insufficiency of allegation is a matter to be tested in some appropriate way in the court of first instance. Certainly that court has power to pass upon such a question.
Relators urge with much vigor and earnestness their next point relied upon. Stated tersely, it is this: That by virtue of the provisions of article 12, § 6, of the state Constitution, the power to remove a director of a school district is vested in the state board of education, created by said provision of the state Constitution, and that the district court is without power, authority, or jurisdiction to remove. This contention is a direct challenge of respondent’s jurisdiction of the subject-matter.
Section 6 of article 12 of the state Constitution provides as follows: “A state board of education is hereby created, to consist of seven members. It shall have the control, management and direction of all public schools, under such regulations as may he provided by law. The governor and the state superintendent of public instruction shall be ex-officio members of said board and the remaining five members shall be appointed by the governor, by and with the consent of the senate; and shall include the head of some state educational institution, a county superintendent of schools, and one other person actually connected with educational work. The legislature may provide for district or other school officers, subordinate to said board.”
The italicized portion of the foregoing constitutional provision is the portion thereof chiefly relied upon by relators and made the basis of their argument. The respondent, as district judge aforesaid, in his answer filed herein by way of return to the writ, bases his jurisdiction to hear the cause on the language of 1929 Comp. § 96-105, reading as follows: “Any county, precinct, district, city, town or village officer elected by the people, and any officer appointed to fill out the unexpired' term of any such officer, may be removed from office on any of the grounds mentioned in this chapter and according to the provisions hereof.”
Counsel for relators urge that the use of the word “district” in the statute just quoted does not embrace a school district. They are unable to point out any other municipal subdivision to which the word “district” as used in the statute might reasonably apply, certainly none to which it more naturally or logically relates itself than a school district. We must rule against relators on this contention.
Perhaps sensing the weakness in this argument, relators follow it with the contention that if, as originally employed, the word “district” embraced within its meaning a school district, because of its inconsistency with the above quoted constitutional provision creating the state board of education, it was not carried forward as an existing territorial law under the provisions of article 22, § 4, of the state Constitution and is no longer operative.
It is further argued that the enactment of chapter 148, N. M. Session Raws of 1923, and the various acts amendatory thereof represents a complete codification of the school laws of the state in entire harmony with the constitutional powers of the state board of education, provision for the removal of certain school officials for various acts, generally although not always criminal in character, are pointed out and the conclusion drawn that it is to the state board of education alone and the regulatory measures provided for it in the school code that we must look for authority to sustain removal proceedings against directors of school districts.
We look in vain, however, for any general warrant of authority to remove directors of a school district except as found in 1929 Oomp. § 96-105 and succeeding sections, and these provisions are not a part of, and were enacted long prior to, adoption of the school code.
Nowhere in this enactment or its various amendments do we find any set up of machinery for removal of school directors before state board of education or under its supervision. On the contrary, we find that the school code itself, in one section expressly, section 120-1424, and in another by implication, section 120-813, authorizes summary removal of school directors by the district court for certain specific acts of malfeasance, thus at least furnishing a legislative interpretation for whatever weight it is entitled to, since adoption of the Constitution, that power in the district court to effect removal of such officials for malfeasance in office, is not in derogation of the constitutional powers of the state board of education.
We then must inquire judicially whether provision for the removal of school directors in proceedings before the district éourts of this state is so inconsistent with the “control, management and direction of all public schools” confided into the hands of the state board of education by the Constitution that the statutory authority therefor failed to survive the adoption of the Constitution: And to this inquiry we feel compelled to give a negative answer.
In the first place it is to be noted that the “control” given to the state board is to be exercised “under such regulations as may be provided by law.” While conceding that the Legislature may not under the guise of regulation enact measures which are destructive of the primary powers granted, we áre not disposed to view removal proceedings before district courts as falling within that category.
As to some grounds of removal stated in section 96-106, for instance “failure, neglect or refusal” of an official to discharge the duties of his office, or “gross incompetency or gross negligence” in the discharge of such duties, a tribunal composed of trained educators, such as a majority of the members of the state board of education are required to be, is perhaps better prepared to pass upon the. merits of the charge than is the district judge, a man skilled in the law.
Nevertheless, the hearing of the accusation based upon any of the statutory grounds for removal is quasi judicial in character and in so far as the hearing takes on such character, what forum should be better prepared to hear, determine, and decide than the district courts and the judges thereof? After all, it is a matter of legislative policy. Until the Legislature in its wisdom sees fit to transfer to the state board of education power to entertain and determine proceedings for the removal of school directors, we must hold such power to reside where the territorial legislature placed it, namely, with the district courts.
It is apparent from wliat has been said that the district court of Guadalupe county has jurisdiction to hear and 'determine the removal proceeding pending before it. The resimndent as judge thereof is not acting without jurisdiction in proceeding with the hearing. The alternative writ of prohibition heretofore issued will therefore be discharged.
It is so ordered.
WATSON, O. J., and HUDSPETH, BIOKLEY, and ZINN, JJ., concur. | [
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WATSON, J.
This is an appeal from the judgment of the district court Sustaining a will and admitting it to probate.
The matter reached the district court by appeal from a similar decision of the probate court taken by certain heirs at law, the present appellants, who appeared at the hearing, evidently as objectors to the probate of the will.
The district judge overruled a demand of the objectors or contestants for a trial by jury. That action is here assigned as error. It presents a question of statutory construction.
The probate court has exclusive jurisdiction of the probate of wills. 1929 Comp. St. § 34-412. Its decisions are appealable to the district court. Id. § 34-420. If, on the hearing for proving the will, the probate judge “shall be of the opinion that the will is not valid,” he is to certify such opinion with the proceedings to the district court. There the matter is to “stand for hearing de novo * * * the same as on appeal, but either party, on demand therefor, shall have the right to a trial by jury on such appeal.” Id. § 154-209. Interested persons may contest the will and pray revocation of probate at any time within one year after such probate. Id. § 154-211. If, on contest, the “probate judge shall be of the opinion that the probate should be revoked,” he is to certify that opinion, with the proceedings, to the district court, and the same proceedings are to be had as when such opinion is arrived at by the probate judge on application to probate the will. Id. § 154-213.
The provisions just referred to are respectively sections 48, 46, 11, 13, and 15 of the Uaws of 1889, c. 90. They provide for a trial de novo in the district court of any decision of the probate judge as to admission to probate and revocation of probate. But, where the “opinion” of the probate judge is unfavorable to the will, the jurisdiction of the district court does not arise through an ap.peal in the ordinary sense of the word. It is an automatic statutory transfer of the jurisdiction, the law refusing to give effect to the adverse opinion of a probate judge. Appellee’s position is that it is in that class'of cases only that either party may demand a jury. If sustained, it would support the trial court’s ruling.
It is true that the language of section 154-209, supra, does not necessarily confer the . righj; upon interested persons in the situation „,of appellants, who, having objected to the or- , iginal admission to probate, have appealed from an adverse judgment.
On the other hand, the language does not clearly exclude the right in eases like this. The section wherein the right is conferred (section 154-209) is not dealing with true appeals. But, the same result is accomplished, the only difference being in the method. Jurisdiction having been acquired by the district court, the matter stands “as on appeal.” The subsequent phrase, “such appeal,” may find its antecedent in appeals generally, or in the quasi appeal or removal prescribed in that section.
We may admit that, considering nicety of language and arrangement, appellee has the better of the argument. But, nothing presented or occurring to us suggests the appropriateness, wisdom, or sound policy of distinguishing, as to the right of trial by jury, between these quasi appeals, and ordinary appeals. In the one case, the matter stands “as on appeal”; in the other, it stands on appeal. Always'the trial is de novo. The favorable or unfavorable “opinion” of the probate judge cannot affect the result in the district court. It has exactly the same question before it in either case, the validity of the will.
If the right of trial by jury is of value to either party in the one situation, it will be equally so in the other. The winning or losing of the skirmish in the probate court has no reasonable connection with a right to a jury in the battle in district court.
The Legislature has denied effect to the “opinion” of a probate judge adverse' to a will; though his favorable .opinion, unchallenged by an interested person, may stand. That distinction is plain. Among other reasonable explanations of it, it may be said to suggest a policy somewhat favoring wills. But, there is nothing in the distinction appellee urges to further such policy. The right, whatever it may be, is reciprocal. Either party may claim it.
The logic of the situation constrains us to hold that, in all of these cases in the district courts wherein the purpose is to procure or to revoke the probate of a will, the right of trial by jury has been granted, at the request of either party. The legislative language, while somewhat unfavorable to this view, does not exclude it. To hold that the intention. was otherwise is to impute to the lawmaking body an arbitrary distinction, serving no purpose, advancing no interest or policy, and resulting in a degree of absurdity. So we conclude that it was error to deny appellants the right of trial by jury.
In the district court there was a difference between counsel as to whether the evidence showed the attesting witnesses to have seen the testator sign the will. On this point the court found favorably to appellee. He did not and does not, however, stand solely upon the findings. He contends that they are unessential because, as he urges, Code 1915, § 5866 (1929 Comp. St. § 154-108), containing such requirement, was repealed by implication by Laws 1921, c. 83. The learned trial judge evidently took that view. The matter might give further trouble in this case if not decided now.
The latest expression of the Legislature as to attestation is: “All wills * * * shall be * * * attested in the presence of the testator by two or more credible witnesses.” Laws 1921, c. 83, 1929 Comp. St. § 154-1051 Theretofore, “the witnesses * * * must * * * see the testator sign the will. * * * ” The question is whether the Legislature has abolished the earlier requirement. Not having done so expressly, it can have done so only by implication. What we seek is the legislative intent. Canons of construction may aid but cannot control decision.
■ Appellants urge the well-known rule that repeals by implication are not favored, that a later statute will be deemed to repeal an earlier by implication only to the extent of repugnancy, and that if the provisions of the two can be harmonized, both must be given effect.
Obviously, there is no inconsistency between the requirement of the later provision that the will be attested by two witnesses in the presence of the testator, and the earlier requirement that the witnesses see the testator sign. They govern different matters.
Appellee urges the equally familiar rule that if the new statute is comprehensive, and intended to exhaust the subject, earlier provisions will he deemed repealed. Coming to particulars, his contention is that the new statute deals comprehensively with the subject-matter expressed in its title, “An Act to Prescribe the Manner of Making and Attesting Wills. * * * ”
This subject-matter was covered by the following sections of the Code of 1915:
“§ 5858. Any will executed in any foreign jurisdiction, sufficient to convey the title or [of] real estate in such jurisdiction, shall be valid in this State to the same extent as in the jurisdiction where made.” 1929 Comp. St. §.154-102.
“§ 5861. Any person capable of making a will would do better by making it in writing than verbally, but a verbal will may be valid, on condition, that in either case they give it all the validity possible, as well as the freeness of the will, the proof of soundness of mind and entire judgment.”
“§ 5862. The will shall have all the validity required in the previous section; and when made in writing, it shall be signed by the testator, who, if unable or not knowing how to sign, shall request some reliable person to sign for him, and it shall be attested by able and qualified witnesses as provided by the laws prescribing the qualifications of witnesses to give evidence in court or out of court, in this State.”
“§ 5863. In the execution of all wills two or more witnesses shall be sufficient.” 1929 Comp; St. § 154-106.
“§ 5864. A verbal will shall be attested by the same number of witnesses required for the written ones, and besides, two witnesses, there being no more, possessing the same qualifications as required for the written will, to testify that the testator, male or female, was in possession of a sound mind and entire judgment.”
“§ 5865. Persons becoming heirs, and those receiving benefits or legacies, by will, cannot be witnesses to the will in which they are interested.” 1929 Comp. St. § 154-107.
“§ 5866. The witnesses to a written will must be present, see the testator sign the will, or some one sign it for him at his request as and for his last will and testament, and must sign as witnesses at his request in his presence and in the presence of each other.” 1929 Comp. St. § 154-108.
These sections may be traced to the Act approved January 12, 1852, found, with the English translation, in Laws 1851-52, p. 354, and to Laws 1889, c. 90. The new statute (Laws 1921, c. 83), which appellee urges as comprehensive, reads as follows:
“An Act to Prescribe the Manner of Making and Attesting Wills; and to Repeal Sections 5861, 5862 and 5864, New Mexico Statutes, Annotated, Codification 1915, Relative to Oral Wills.
“Section 1. All wills by which any property, real, personal or mixed, is devised or bequeathed, shall be reduced to writing and signed by the testator, or some one in his presence and by his direction, and attested in the presence of the testator by two or more credible witnesses. Provided, however, that any will which has been admitted to probate in any other State according to the laws of such State, shall be admitted in this State in the manner provided by law.
“Sections 5861, 5862 and 5864, New Mexico Statutes, Annotated, Codification 19.15, are hereby repealed.”
What we conceive to have been the main purpose of this act is very plain. It expressly repeals three of the foregoing sections which recognized the validity of so-called verbal wills. These were replaced by the new requirement that “all wills * * * be reduced to writing and signed by the testator.”
Another good reason for the repeal of these particular sections existed and may have had influence. Originally adopted in Spanish, the translations were not happy, and the English version was involved and confusing.
So far as the Legislature has expressly spoken there remain four of the foregoing sections which hear upon the general subject of making and attesting wills. We would have been spared labor if those four had been either wiped out by express repeal and reenactment of what it was desired to retain, or left alone, without inclusion of any of their subject-matter in the new act.
It is the overlapping of the new and the old which raises doubt. The substance of sections 5858 and 5863 was incorporated in the new statute. That presents no difficulty except that it suggests, or is consistent with, intent to make the new act comprehensive.
The subject-matter of section 5865 finds no place in the new act. This is true also as to section 5866, except for a repetition in the new act of the old requirement that the witnesses sign in the presence of the testator.'
According to appellee’s construction, important and customary safeguards have been abandoned. He argues that the requirement that the witnesses see the testator sign is unusual, and that the Legislature intended to dispense with it. It is usual, however, to require • that the witnesses sign at the testator’s request, in the testators presence, and in the presence of each other, and that there be some publication to the witnesses by the testator that the instrument is his will. The intent to dispense with all of these is not readily to be implied. The resulting system would be very loose.
Moreover, appellee’s argument, though not his contention, would necessitate holding section 5865, also repealed. It is not lightly to be inferred that so important a provision was intentionally repealed without something to replace it. “Considerations of convenience, justice and reasonableness, when they can be invoked against the implication of repeal, are always very potent.” Lewis’ Sutherland, Stat. Const. (2d Ed.) § 247.
How much of former requirements said to have been repealed could be held included in the new requirements that the witnesses “attest,” and that they be “credible,” are questions we do not pursue. At least, the statute would raise difficult questions of construction.
Appellee suggests that if the Legislature did not intend the new act to be comprehensive, it has “set a trap for unsuspecting tes-. tators.”- Statute law contains many traps. It is not easy to foresee all consequences of proposed legislation. The argument might properly be addressed to the Legislature, to induce it to try its hand again. It cannot greatly influence our conclusion as to the intent here disclosed.
Appellee relies largely on the title of chapter 83 to support his view that it was intended to be comprehensive, and the sole regulation as to the attestation of wills: We doubt if great weight should be given to it. A learned court has said: “While the title of an act should not be altogether ignored, and may afford a key to unlock the meaning of a very doubtful statute, yet the title of an act cannot be used to extend the provisions of an act so as to include within its scope that which without such aid would plainly not be included.” The New York (C. C. A.) 108 F. 102, 109. The text most often relied upon cites this case to the proposition, “the repealing effect of an act cannot be enlarged by its title.” Lewis’ Sutherland, Stat. Const. (2d Ed.) § 266.
Aside from this title, no intent is disclosed to reconsider and revise the general subject • — an intent which might easily have been made plain. The evidence of the act itself is to the contrary. As to the main accomplishment, abolishing oral wills, it leaves no doubt, expressly repealing everything in existing law repugnant to it. Beyond this no new policy is disclosed. Everything else embodied in the act was already provided for in the sections left unrepealed. These facts, with the facts that a special repealer was used and no general repealer of inconsistent provisions employed, point as strongly to lack of intent to make the act comprehensive, as the broad title and the unnecessary inclusion of a few provisions amounting to restatement or reenactment of existing law, point to a contrary intent.
The evidence appearing on the face of the act as compared with the then existing law ■being equally balanced, our conclusion would be against a repeal by implication, since the intent to repeal must clearly appear. Considering the results which would follow, we are quite persuaded that no repeal py implication was contemplated. ,
The judgment is reversed. The cause will be remanded with a direction to grant appellants a trial by jury. It is so ordered.
BICKLEY, C. J., and SADLER and HUDS-PETH, JJ., concur.
NEAL, J., did mot participate. | [
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BICKLEY, C. J.
Appellant was convicted of stealing horses belonging to Tanner, and appeals.
The first point relied upon for reversal is that the evidence does not support the verdict.
A careful examination of the record shows that the evidence, though largely circumstantial, is sufficient.
The question of identity of the animals charged to have been stolen was an issue in the case. A defense witness named Jaeggers had testified that the horses were branded with part of a T on the left hip, “old brands • * * been on there two or three years * * * been on there at least two years.” The state, in rebuttal, called witnesses who testified to the effect that the brands were fresh, been on less than a year, etc.
The appellant recalled his witness Jaeggers, and in his brief thus characterizes his purpose in so doing: “The appellant recalled the witness Bill Jaeggers, to prove facts in sur-rebuttal, and tending to show that the brands on the animals were not fresh brands.”
The court sustained the objection of the state that the evidence tendered by the defendant was not proper surrebuttal. This ruling is assigned as error. It seems to us that the evidence thus offered by the defendant is what is classed as “evidence not strictly in sur-rebuttal,” but merely cumulative or confirmatory, and hence its admission was within the discretion of the trial court. The point is ruled by California Sugar & White Pine Company v. Whitmer Jackson & Company, 33 N. M. 117, 263 P. 504, where it was decided : “The admission or rejection, at the .stage of rebuttal, of evidence not strictly in rebuttal, is intrusted wholly to the sound discretion of the trial court.”
We find no abuse of discretion by the trial court in the case at bar.
Appellant claims that the court erred in permitting a witness on his direct examination to testify to a conversation between said witness and Bill Jaeggers to the effect that said Jaeggers told the witness that two men working for appellant came and made arrangements with Jaeggers to receive and keep these horses two weeks before the appellant arrived, and to receive and keep everything appellant brought there, and that appellant was going to pay Jaeggers for it and pay him well, and that he, Jaeggers, said he had no kick coming. The evidence was objected to as hearsay, not made in the presence of appellant. The district attorney below, and the attorney general now, urge that the testimony was admissible because counsel for appellant had asked the witness on cross-examination concerning the conversation between the witness and Jaeggers about the property in question. Whether hearsay statements of a third person are admissible under the rule entitling the adverse party to the whole of the conversation where part has been given, although part of the conversation in which said hearsay was given has been admitted, we need not decide. Perhaps the exception to the rule applies only where the conversation was with one of the parties to the action. But, assuming that there may have been technical error in the reception of the testimony, it is not reversible error on the record which is all we have to go by.
“It is elementary that this court will disregard any error not prejudicial to the substantial rights of a party, and the burden of showing such prejudices rests upon the party asserting it.” Goldenberg v. Law, 17 N. M. 546, 131 P. 499, 500.
In State v. Pruett, 22 N. M. 223, 160 P. 362, 364, L. R. A. 1918A, 656, we said: “It is not pointed out in the brief of counsel for appellant, however, in what manner this evidence prejudiced the rights of his client.” See State v. Garcia, 19 N. M. 414, 143 P. 1012 (2d syl.); State v. Poich, 34 N. M. 423, 282 P. 870; State v. Ancheta, 20 N. M. 19, 145 P. 1086; State v. Kelly, 27 N. M. 412, 202 P. 524, 21 A. L. R. 156.
So, here, counsel for appellant assert that the evidence was prejudicial, but leave us to speculate as to the reasons for the assertion. Here, as in State v. Pruett, supra, the testimony is of a fact in the case, standing alone.
The testimony could have no other effect than to establish that appellant had been in possession of property claimed by the state to have been recently stolen.
The jury were instructed concerning the effect to be given evidence of possession of such property as follows: “You are instructed that the possession of recently stolen property, if unexplained, is a circumstance to be taken into consideration by the jury the same as any other fact or circumstance proved in the case, and to be given such weight as the jury may deem it entitled to; and if, in this case, you believe from the evidence and beyond a reasonable doubt that defendant was found in possession of the property or any part thereof alleged in the indictment to be stolen, if it was stolen, you may take that fact or circumstance into consideration and give it such weight as in your mind it is entitled to, in arriving at your verdict in this ease.” (Italics ours.)
This cautionary phrase italicized, seems to be in accord with the statement in volume 8, Encyc. of Evidence, pages 99, 100, as follows: “Corpus Delicti Must Be Otherwise Shown.— The possession of property does not of itself raise any presumption, nor it is indeed any evidence, that the property was stolen. There must be other evidence of the corpus delicti.”
So, even where the circumstance of possession of property recently stolen is said to raise a presumption that the possessor is the thief, it goes no further than to aid in determining who took the stolen property. It bears upon the identity of the thief, and not upon the question of whether there is a thief -in the transaction.
Appellant’s only objection to the instruction quoted, is that there was no evidence to prove that the animals found in the possession of the appellant belonged to Tanner, and that the corpus delicti was not established.
We have found that the allegation of ownership by Tanner of the horses in question, and that they had been stolen, is sustained by substantial evidence. The fact of appellant’s possession of two of the stolen horses claimed by the state to belong to Tanner was established by three witnesses for the state by proper evidence not disputed by any other testimony. Indeed, certain defense testimony affirmed in appellant, at a time prior to the larceny, charged ownership and possession of the identical horses on Jaegger’s ranch, which other defense testimony shows were claimed as the horses stolen from Tanner. The appellant also produced one witness who asserted he sold to appellant the mare and colt in controversy, then located on Jaegger’s ranch. The chief evidentiary value of such testimony was its tendency to explain a possession otherwise incriminating, although it would also tend to suggest a mistake by Tanner’s agents in their identification of said horses as his property. Neither view of this evidence questions, and on the contrary presupposes, appellant’s possession. These two animals at appellant’s instance were photographed, and the photographs produced at the trial with a view of persuading the jury, not that appellant was not in possession of such animals, but that they were not in fact the same ones the state claimed them to be, namely, Tanner’s animals. Thus, the real issue raised in the evidence by the appellant as to these two animals was not his possession of them, but their identity.
The appellant, in his brief, states that, even if it be conceded that the horses proved to have been in his possession belonged to Tanner, a sufficient explanation of such possession was shown: “When he stated that he bought these animals and got a bill of sale of them.”
It is well established that a conviction will not be reversed where the fact to prove which the evidence was improperly admitted is not in dispute. 17 C. J., Criminal Law, § 3662.
A similar claim is made as to the court’s overruling objections to questions addressed on cross-examination to the defendant’s witness Covey, which it is claimed elicited hearsay. We have examined the record and find no prejudicial error, if error there was.
Appellant assigns errors on account of instructions given by the court and for failure to give certain instructions requested by appellant. After careful consideration we regard these contentions to be without merit, as we do also the contention that the court erred in overruling appellant’s motion for a new trial.
The judgment must be affirmed, and it is so ordered.
SADLER and HUDSPETH, JJ., concur.
WATSON and PARKER, JJ., did not participate. | [
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ZINN, Justice.
The probate court of Union county on September 26, 1925, approved and allowed claims of Luther W. Ware against the estate of J. F. Ware in the sum of $4,675, together with interest in the sum of $1,220. Luther W. Ware, as ancillary executor of said estate, the' appellee here, thereafter brought this action pursuant to 1929 Comp. St. § 105-2101, to sell a sufficient amount of the real estate belonging to said estate to satisfy said sum, alleging that there was insufficient personal property or cash to pay the same. The appellants, as defendants below, in their answer to the action of the appellee to sell the real estate, admitted that the claims of Luther W. Ware against said estate had been allowed by the probate court, but denied that they were valid.
The validity of the appellee’s claims are questioned by appellants for two reasons: First, that the appellants, as heirs and legatees, had no notice of the claim of the petitioner as filed in the probate court of Union county, or of the order of said court allowing said claims; and, second, that the Boyle county circuit court of Kentucky, in which the principal administration proceeding was had, about two and one-half years after the Union county New Mexico probate court had allowed the claim of Luther W. Ware, had disallowed said claim in part, and that such judgment of the Kentucky court is superior and controls over any judgment that may have been rendered by the probate court of Union county.
The trial court entered judgment directing the appellee, as ancillary executor, to first employ the personal property and cash of the decedent, the total of said cash and personal property amounting to $1,244.45, to pay said claims, and to sell a sufficient amount of the real estate to satisfy the remainder. The appellee, pursuant to the judgment, and in the manner provided by law, made said sale ol the real estate without objection by the appellants, to one Mary Ward Scott, and the sala was thereafter duly confirmed by the court, without objection by the appellants. The appellants prayed an appeal from the judg ment, which appeal was allowed.
It was not urged by the appellants in the lower court or here that the claims of the petitioner had been unjust, improper, fraudulent, nor do they present any other legal or equitable grounds why the allowance of the claims, to satisfy which this action was brought, is invalid, other than the fact that notice was not given to the appellants of the hearing had in the probate court of New Mexico, involving the petitioner’s claims, and. also that the judgment of the Kentucky court is controlling.
The appellants fail to cite and we can find no provision in our law which requires notice to be given to heirs, legatees, devisees, creditors, or others who may be interested in an estate upon hearings to be had by the probate court before claims are allowed against the estate. 1929 Comp. St. § 47-504, provides for notice to the executor or administrator, but none to the heirs or legatees, and failure to give notice to the appellants before the claim of petitioner was allowed, by the probate court of Union county, does not make the judgment of the probate court of Union county granting the petitioners’ claim invalid.
It might be salutary that notice be given to heirs and others interested before claims are allowed by probate courts.. In many instances the allowance of claims have far-reaching effects. Most important interests, the estates of widows and children, are involved. But, when the appellee’s claims were allowed, the law was clear that no notice to the appellants was required.
The appellants’ contention that the judgment of the Kentucky court, entered approximately two and one-half years subsequent to the New Mexico judgment, is controlling, and therefore the real estate of the decedent should not be sold to pay the claim of appellee, is without merit.
What the appellants seek to do here, in an action to sell real estate of a decedent to pay debts, is to wage the judgment of the Kentucky court against the judgment of the New Mexico probate court. The presumption is in favor of the validity of the judgment of the probate court of New Mexico, and such presumption cannot be overcome by the judgment of a court of another jurisdiction.
We held in the case of Sheley v. Shafer, 35 N. M. 358, at page 370, 298 P. 942, 948, as follows: “The law is well settled that an administrator in one jurisdiction is not in privity with an administrator of the same estate in another jurisdiction.”
There being no privity between administrators appointed in different states, a judgment obtained in the Kentucky court is not binding upon the administrator of this state, nor is the judgment obtained in the Kentucky court evidence of the debt in this state. The judgments of the probate court of New Mexico are-entitled to the same favorable presumptions and the same immunity from collateral attack as are accorded those of courts of general jurisdiction. They are final and conclusive, unless corrected on appeal.
We do not hold that the judgment of the probate court allowing the claims, without notice to the heirs, was conclusive in this suit against the heirs to sell their real estate. We do hold that the fact that the claims were allowed without notice to the heirs was not in itself a sufficient defense in this suit. It should have been accompanied, in allegation and proof, by other facts showing that the claims were not just and legal.
The action of appellee was brought under the provisions of 1929 Comp. St. c. 105, art. 21, which is a statutory proceeding in the district court for the sale of real estate of decedents where the personal estate of said decedent is insufficient to discharge the just debts allowed against the estate; the validity of said claims having first been determined in the proper court.
In a proceeding to sell decedent’s real estate to pay valid claims, the statute governing such procedure provides that the court upon the hearing of the cause, upon the issues formed, shall hear proofs on the issues tendered, and, if it shall appear that the personal estate will be insufficient to discharge the just debts and claims allowed against the estate and the legacies charged thereon, and expenses of administration, the court shall determine the amount of deficiency, and may direct that the real estate, or such portion thereof as may be necessary, be sold or leased by the executor or administrator, or that the executor or administrator raise money for the discharge of such debts and legacies, by mortgage of all or any part of such real estate or that any part of such real estate be sold, and the residue, or any thereof, be mortgaged or leased, according as may seem most for the interest of all persons interested in the estate. 1929 Comp. St. § 105-2107.
The trial court found that the claims of appellee were valid existing claims, and that there was insufficient personal property or cash to pay the same, and entered judgment directing the appellee, as ancillary executor, to first employ the personal property and cash of the decedent to pay said claims, and to sell a sufficient amount of real estate to satisfy the remainder. No objection was made to said judgment by the appellants. The appellee, pursuant to the judgment, and in the manner provided by law, ma'de said sale of the real estate, and the sale was thereafter duly confirmed by the court. In this we find no error.
The judgment of the district court is therefore affirmed. It is so ordered.
WATSON, O. J., and SADLER and BICKLEY, JJ., concur. | [
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WATSON, Chief Justice.
Appellant sued to enjoin collection of taxes, claiming that the property assessed is exempt.
The material findings may be thus summarized: Appellant is incorporated under 1929 Comp. St. § 32-506, authorizing the organization of “a corporation for religious, benevolent, charitable, scientific or literary purposes, or for the establishment of colleges, academies, seminaries, churches or libraries.'’ The' property in question is held in legal ownex-ship by appellant, but purely in trust for the use of the active membership of Kappa Kappa Gamma as a chapter house at the University of New Mexico. This sorority is a constituent of a national organization of the same; name. It is composed of a carefully selected group of bona fide women students of the University of New Mexico. The property is used as a fraternal home where the active members of the society board, room, study, hold social functions, and practice the principles of the society while in attendance at the University. The active members encourage scholarship, participate as a group and as individuals in University activities, discuss University and student problems, and require of all members a regular, orderly, and moral life. The local chapter is under the active supervision of the national organization, which •requires the maintenance of certain standards, and is also under the direct supervision and control of the University to the same extent that the latter controls other students and organizations. An existing University regulation requires that all nonresident women students live either in a University dormitory or in one of these chapter houses, and this rule is essential to a proper supervision of women students. The dormitory facilities are not sufficient to accommodate the women students, and would have to be increased except for this and similar sorority houses.
The trial court refused to find that the use to which appellant’s property is devoted is educational, and refused the injunction prayed.
Much that was urged in Temple Lodge v. Tierney, 37 N. M. 178, 20 P.(2d) 280, just decided, is here renewed, so it may be well to distinguish the two cases.
In the first place, the decision in the Temple Lodge Case rests upon a conclusion of charitable use of the property there in question. In the present case, the use is not claimed to be “for charitable purposes.”
In the second place, it is not impossible that the Temple Lodge Case might have been decided on the ground of an educational use of the property there involved. Even so, the same conclusion would not necessarily follow in this case. The trial judge found that Masonry embraces and inculcates a system of philosophy and actively explores important fields of human knowledge. We have no similar findings here. No attempt at a similar showing seems to have been made. We have nothing on which to base a claim that this society has an educational program of its own.
In the third place, while, under the varying provisions of the states, views are divided as to whether exemption extends to the property of Masonic Lodges, appropriately used, there is strong support for the exemption under provisions similar to ours, and scarcely any authority to the contrary. On the other hand, as will be seen, appellant is able to marshal from the decisions but weak support for its contention here.
In this, as in the Temple Lodge Case, appellee contends for a strict construction of N. M. Const, art. 8, § 3. That question we fully considered in the case mentioned, and need not pursue further. As there suggested, canons of construction are not arbitrary formulas. They have not been devised, though frequently used, as a convenient means of supporting a bad conclusion. They are merely aids to logical deduction as to intent — always the ultimate question.
Appellant claims that this Greek letter sorority is a literary and scientific institution or society, and that the property is devoted exclusively to literary and scientific objects, and is thus exempt under 1929 Comp. St. § 141-110. We think not. We consider that statutory provision repealed by the Constitution. True, all territorial laws not inconsistent with the Constitution were to remain in force. And there is no necessary conflict between the exemption of property used for educational or charitable purposes, and the continued exemption of the property of literary and scientific societies. It is another principle, however, which induces our conclusion. It seems plain from the face of article 8 that the Constitution makers intended to cover the whole field of exemption.
Section 3 is affirmative and self-executing. It creates exemptions. There is a strong presumption against an intent to permit the Legislature to create others. Inclusio unius est exclusio alterius. But this is not all. Section 5 gives t-he Legislature permission to make certain other exemptions. Here again the maxim applies. 'So the whole subject is covered. There can be no other source of exemption than section 3, which the Legislature cannot touch, and section 5, wherein the legislative power is limited to specified -objects.
This is not to say that the use of property for literary or scientific purposes will always be .immaterial to a claim of exemption. As suggested in the Temple Lodge Case, such uses might be deemed educational within the meaning of the Constitution.
Appellant ably urges two theories in support of its claim that the use of its property is for educational purposes. The first rests upon the character of the fraternity itself ; the second upon its relation to the State University, undoubtedly an educational insti-r tution.
As to the first: Doubtless there are great, cultural advantages in the college sorority mode of life. It is urged that the present conception of education is very broad, as shown by the expanding programs of educational in stitutions, and that it includes what may be gained from refined surroundings and contacts, and direction and incentive to high standards and ideals. But we cannot upon that alone hold that the sorority is an educational institution, or that its occupancy of the premises as a home of refinement and culture and select social activity is an educational use. Its claim must stand or fall .upon the part it plays in University education. That phase of the matter has been most often considered by the courts, and is perhaps most strongly pressed here.
Among the objects enumerated in appellant’s articles of incorporation we find: “To encourage scholarship, literary and scientific training of the women students at said University of New Mexico.”
In some situations this might be determinative of the corporation’s character as literary or scientific or educational. Not in this situation. It has been frequently pointed out that, since use is the criterion, it is necessary to show that the practice conforms to the profession.
The intimate relation of the sorority to the University cannot be doubted. The former could not exist without the latter. The active members must be University students. Colleges and Universities could and occasionally do, function without these adjuncts. However, it is not too much to say, as matter of judicial knowledge, that their sudden disappearance or suppression would be revolutionary in the world of formal education. This mode of college life has its critics and its advocates. As to this, it is enough to say that it is generally sanctioned, perhaps generally encouraged, by those in authority. It must be admitted finally, however, that, of these two-intimately related institutions, the sorority is dependent upon the University, not the University upon the sorority.
Appellant urges that students must eat and sleep, must have a place for study, should have facilities for social concourse and improvement, may well be organized in such groups and live under such conditions as promote regulation and supervision by the University authorities, and emulation in scholarship and student activities. Other matters are presented as showing the advantages of these organizations to their members, to the University administration, and, broadly, to education itself. It is urged that, where the educational institution itself affords to its students these facilities — dormitories, dining halls, study halls, recreation halls — the uses are educational; as much so as in the case of classrooms, lecture halls and laboratories. Authorities support the contention, and we do not question it. Yale University v. New Haven, 71 Conn. 316, 42 A. 87, 43 L. R. A. 490; Harvard College v. Assessors of Cambridge, 175 Mass. 145, 55 N. E. 844, 48 L. R. A. 547; City of Chicago v. University of Chicago, 228 Ill. 605, 81 N. E. 1138, 10 Ann. Cas. 669; People v. North Central College, 336 Ill. 263, 168 N. E. 269.
It does not necessarily follow that, where the educational institution itself has failed to furnish these facilities and adjuncts to education, or has inadequately furnished them, the same exemption will attach to property ■devoted to the same purposes by the students themselves, or by some independent agency. The contention that it does follow is not without force, since use, not ownership, is the test. Yet there is this difference: The very fact that an educational institution has •devoted property to a use reasonably related to its general purposes, stamps that use as educational in the opinion of those intrusted with the responsibility for adopting educational policy. Eyery use of property by the institution bears a relation to every other use. The whole of its activities is necessarily its educational plan. This is limited by its resources. Each activity is reflected in its budget and in the cost of its educational program. We might readily assume, and it might be presumptuous to deny, that property in use by an educational institution is used for an educational purpose.
Appellant relies strongly upon the finding that, except for these sorority houses, the state would be put to the expense of erecting and maintaining additional dormitories for women. Thus is disclosed a quid pro quo of practical and pecuniary benefit to the state, fully commensurate, as it urges and as we assume, with the tax exemption claimed. We do not question that a correct theory of exemption looks to a resulting public benefit. Berger v. University of New Mexico, 28 N. M. 666, 217 P. 245. Nor would we dispute with him who shall assert the public benefit from sororities and sorority houses. In a close case, resulting benefit might help to identify a use as educational. Alone, it cannot. It is not the criterion. We could scarcely distinguish between the sorority and the fraternity as to tax exemption, on the ground that the former provides a necessary, the latter merely a convenient, college dormitory.
For precedents wherein the property of Greek letter societies has been held tax exempt, appellant is forced to rely upon Beta Theta Pi v. Board, 108 Okl. 78, 234 P. 354, 355; Kappa Kappa Gamma, etc., v. Pearcy, 92 Kan. 1020, 142 P. 294, 295, 52 B. R. A. (N. S.) 995, and State v. Allen, 189 Ind. 369, 127 N. E. 145. These authorities are not highly persuasive.
In the Oklahoma case it stood as admitted that the evidence brought the fraternity’s claim within the statute exempting the property of “fraternal orders or societies.” The sole question was whether such statutory exemption exceeded the constitutional limitation. This was decided in the negative, in view of the fact that the Constitution preserved, until otherwise provided by law, the exemptions existing under territorial laws, the latter having exempted the property of “libraries, scientific, educational, benevolent and religious institutions, colleges or societies, devoted solely to the appropriate objects of these institutions, * * * ” and in the view that the existing statute was no “more specific or definitive in its exempting features” than the territorial statute.
In the Indiana case it was held that a statute expressly exempting the property of Greek letter fraternities was valid under a constitutional provision authorizing legislative ex emption “for * * * educational, literary * * * purposes. * * * ”
These are the strongest cases in appellant’s favor, and there is this important distinction to be noted: The Oklahoma and Indiana courts had before them the question of the constitutionality of statutes. Such being the question, they must resolve every doubt in favor of the validity of legislative action. We are interpreting a self-executing constitutional provision, seeking the fair and reasonable intendment.
The Kansas case is of no weight as precedent or authority. There a statute of unchallenged validity granted exemption to property “used exclusively by any college or university society as a literary hall or as a dormitory. * * * ”
On the other hand, exemption has usually and frequently been denied to these Greek letter societies. See notes “Taxes: exemption of college fraternity house,” 52 L. R. A. (N. S.) 995; “Exemption of college fraternity house or dormitory from taxation,” 33 A. L. R. 1015; and Cooley on Taxation (-1th Ed.) § 750; Kappa Gamma Rho v. Marion County, 130 Or. 165, 279 P. 555. The courts have usually considered that the facts in the particular cases disclosed a “dominant use” as a private boarding house, or that “the primary purpose” was to furnish “a private boarding place and dormitory for the use of the fraternity members.” While each case will, of course, rest on its own facts, we think that the use shown in the case at bar is of this character.
So holding, we are constrained to affirm the judgment and to remand the cause. It is so ordered.
SADLER and HUDSPETH, JJ., concur.
ZINN, J., did not participate. | [
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SADLER, Justice.
The plaintiff, appellant in this court, as a taxpayer and property owner suing for himself and on behalf of all others similarly situated, seeks to enjoin defendant, the county treasurer of Quay county, from proceeding under Laws 1933, c. 171, to give notices, advertise for sale and sell real estate in said county upon which taxes are delinquent for the years 1931 and 1932.
The act whose enforcement is thus sought to be enjoined was enacted as Senate Bill 144, approved March 16, 1933, and by reason of the emergency clause attached, if the effect of the emergency be not open to the inquiry of the courts, effective on that date. It is a new delinquent tax law embracing a comprehensive scheme for the sale of real pi-operty for delinquencies in the payment of taxes for 1931 and subsequent years.
The grounds relied upon by plaintiff in his complaint and here urged are as follows: (1) That the legislative declaration in said act declaring an emergency and putting the same into immediate effect upon its passage and approval was without warrant in fact, and is ineffective; (2) that the act violates the “due process” clause of the New Mexico and Federal Constitutions; (3) that the expenditures called for in giving the notices and making the publications required by the act are in violation of 1929 Comp. § 33-4241, the “Bate- man Act,” and 1929 Comp. §§ 33-5901 to 33-5908, the so-called “Budget Law.”
The defendant, appearing by the district attorney of the Ninth judicial district, interposed a demurrer to the complaint. The'demurrer questioned generally the sufficiency of the complaint and specifically challenged the power of the court to inquire into the question whether an emergency in fact existed warranting the legislative declaration putting the law into immediate effect. The trial court sustained the demurrer, and, the plaintiff electing to stand upon his complaint and refusing to plead further, judgment of dismissal was entered,.from which judgment this appeal is prosecuted.
The trial court rendered a written opinion in ruling upon the demurrer, specifically stating that he was only ruling upon the issues raised by the complaint and the demurrer thereto. He thereupon gave it as his opinion that the act was not unconstitutional as depriving landowners of their property without the due process of law. AYithout passing upon the question whether the legislation assailed violated the so-called Bateman Act or the so-called Budget Act, the trial court merely adverted to the fact that these acts were mere creatures of the Legislature, and, if contravened by a subsequent act of the Legislature, would be repealed by implication to the extent of any irreconcilable conflict. Upon the question of the effect of the emergency clause attached to the act, the trial court held the determination by the Legislature that an emergency existed was final and not open to collateral attack or review by the courts.
AYe shall consider the points raised in the order of their statement hereinabove. The pertinency to the first point lies in these facts: That the new delinquent tax law directs the sale on the second Monday in June of each year of real property of the respective counties upon which taxes are delinquent for the preceding year or years. The operation of the act for the first sale to be held thereunder is confined to delinquencies beginning with the year 1931. Accordingly, the complaint alleges that the county treasurer is about to begin giving the notices for a sale of real property which under the terms of the act would be held on June 12, 1933. If the act did not become effective upon its passage and approval by virtue of the inclusion of the so-called emergency clause, then the sale about to be held or advertised would be wanting in validity by reason of the fact that there was no law in force, so authorizing, at the time of the doing of the several acts, such as giving notice and the like, required under the terms of the act.
This brings us to a consideration of the effect of the emergency clause. It is to be construed in the light of applicable constitutional provisions. Section 44 of the act provides: “That it is necessary for the preservation of the public peace and safety of the inhabitants of the State of New Mexico that the provisions of this Act shall become effective at the earliest possible time, and therefore an emergency is hereby declared to exist and this Act shall take effect and be in full force from and after its passage and approval.”
Section 23 of article 4 of our state Constitution provides: “Laws shall go into effect ninety days after the adjournment of the legislature enacting them, except general appropriation laws, which shall go into effect immediately upon their passage and approval. Any act necessary for the preservation of the public peace, health or safety, shall take effect immediately upon its passage and approval, provided it be passed by two-thirds vote of each house and such necessity be stated in a separate section.”
The question of whose determination, that of the Legislature or of the court, shall give conclusiveness and finality to the existence of a declared emergency made the occasion of putting a law into immediate effect, has been many times presented. Two diametrically opposed theories on the subject are reflected in the decisions. According to one line of decisions, the legislative determination is neither final nor conclusive; the matter being' held to present a judicial question which gives the courts the final determination. Another line of authorities holds the question to be one strictly and solely for legislative determination, and that, when the Legislature has found the existence of facts warranting its use of the emergency provision for accelerating the effective date of legislation, and has so declared, its action is conclusive and binding upon the courts as well as every one else.
It would be wholly futile to attempt to reconcile these conflicting opinions, and equally unavailing to set out upon a comprehensive review of all of them. Many involve the exemption of a questioned act from the referendum by reason of the declaration in an emergency clause that it is necessary for the public peace, health, or safety, -acts relating to which are ordinarily deemed emergent and capable of being given immediate effect, as well as furnishing-a class of laws almost uniformly excepted from operation of the referendum provisions. Many of the cases which we shall cite and discuss are upon the question whether it is for the Legislature or the courts to determine when a law is of the class excluded from annullment by referendum. Decisions that the legislative declaration is controlling in that class of cases are obviously strongly in point here.
Illuminating text discussions and case notes dealing with the question are to be found in 59 C. J. 1143 et seq.; 25 R. C. L. § 50, under tire topic “Statutes”; 50 L. R. A. (N. S.) 195, 212; L. R. A. 1917B, 15, 26; 7 A. L. R. 519.
Some of the leading eases denying conelusivenéss to the legislative determination that -an emergency exists or that the questioned act falls within the class of cases excepted from the referendum are the following, to wit: State ex rel. Brislawn v. Meath, 84 Wash. 302, 147 P. 11; McClure v. Nye, 22 Cal. App. 248, 133 P. 1145; Atty. Gen. ex rel. Barbour v. Lindsay, 178 Mich. 524, 145 N. W. 98; Merrill v. City of Lowell, 236 Mass. 463, 128 N. E. 862; McIntyre v. Commonwealth, 221 Ky. 16, 297 S. W. 931; State ex rel. Westhues v. Sullivan, 283 Mo. 546, 224 S. W. 327; State ex rel. Pollock v. Becker, 289 Mo. 660, 233 S. W. 641; State v. Stewart, 57 Mont. 144, 187 P. 641.
Among the cases frequently cited and relied upon as holding to the opposite view will be found Kadderly v. City of Portland, 44 Or. 118, 74 P. 710, 711, 75 P. 222; Roy v. Beveridge, 125 Or. 92, 266 P. 230; Van Kleeck v. Ramer, 62 Colo. 4, 156 P. 1108, 1110; In re Interrogatories of the Governor, 66 Colo. 319, 181 P. 197, 7 A. R. R. 526; State v. Smith, 102 Ohio St. 591, 133 N. E. 457; Arkansas Tax Commission v. Moore, 103 Ark. 48, 145 S. W. 199; Hanson v. Hodges, 109 Ark. 479, 160 S. W. 392; followed in Stanley v. Gates, 179 Ark. 886, 898, 19 S.W.(2d) 1000, 1005; Orme v. Salt River Valley Water Users’ Ass’n, 25 Ariz. 324, 217 P. 935; Oklahoma City v. Shields, 22 Okl. 265, 100 P. 559, 575; Day Land & Cattle Co. v. State, 68 Tex. 526, 543, 4 S. W. 865; Culp v. Commissioners of Chestertown, 154 Md. 620, 141 A. 410; Diaz Cintron v. People of Porto Rico (U. S. C. C. A. 1st Ct.) 24 F.(2d) 957, 959. See, also, Wheeler v. Chubbuck, 16 Ill. 361; State v. Crawford, 36 N. D. 385, 162 N. W. 710, Ann. Cas. 1917E, 955; State v. Jackson, 119 Miss. 727, 81 So. 1.
A careful reading and analysis of the two conflicting lines of authority and the reasoning advanced in support of the respective views announced, particularly as applicable to our' own constitutional provisions, convince us of the soundness of the" rule which holds final and conclusive a legislative determination of an emergency. Perhaps the leading case supporting this rule and the one most frequently cited is the Oregon ease of Kadderly v. City of Portland, supra. The court was dealing with the finality of the legislative determination that a questioned statute was-“necessary for the immediate preservation of the public peace, health, or safety.” If final, the act was in force and effect from and after its approval and excepted from a referendum thereon; otherwise not. The Supreme Court of Oregon in a well-reasoned and elaborate opinion held the legislative determination final and conclusive. Among other things the court said:
“But the vital question is, what tribunal is to determine whether a law does or does not. fall under this classification? Are the judgment and findings of the legislative assembly conclusive, or are they subject to review by the courts? The inquiry is much simplified by bearing in mind that the exception -in the constitutional amendment is not confined to such laws as the legislative assembly may legally enact by virtue of the police powers of the state, or to those alone that may affect the public peace, health, or safety. The police power is limited to the imposition of restraints and burdens on persons and property, in order to secure the general comfort, health, and prosperity of the state. Tiedeman, Rim. Pol. Power, § 1. But the language of the constitutional amendment is broader, and includes all laws, of whatsoever kind, necessary for the immediate preservation of the public peace, health, or safety, whether they impose restraints on persons and property, or come strictly within the police powers, or not. The laws excepted from the operation of the amendment do not depend alone upon their! character, but upon the necessity for their enactment in order to accomplish certain purposes. As to such laws, the amendment of 1902 does not in any way abridge or restrict the power of the Legislature, which, by the insertion of a proper emergency clause, may unquestionably cause them to go into effect upon approval by the Governor. As the Legislature may exercise this power when a measure is in fact necessary for the purposes stated, and as the amendment does not declare what shall be deemed laws of the character indicated, who is to decide whether a specific act may or may not be necessary for the purpose? Most unquestionably, those who make the laws ate required, in the process of their enactment, to pass upon all questions of expediency and necessity connected therewith, and must therefore determine whether a given law is necessary for the preservation of the public peace, health, and safety. It has always been the rule, and is now everywhere understood, that the judgment of the legislative and executive departments as to the wisdom, expediency, or necessity of any given law is conclusive on the courts, and cannot be reviewed or called in question by them. It is the duty of the courts, after a law has been enacted, to determine in a proper proceeding whether it conflicts with the fundamental law, and to construe and interpret it so as to ascertain the rights of the parties litigant. The powers of the courts do not extend to the mere question of expediency or necessity, but, as said by Mr. Justice Brewer, ‘they are wrought out and fought out in the Legislature and before the people. Here the single question is one of power. We make no laws. We change no constitutions. We inaugurate no policy. When the Legislature enacts a law, the only question which we can decide is whether the limitations of the Constitution have been infringed upon.’ Prohibitory Am. Cas., 24 Kan. 700, 706. The amendment excepts such laws as may be necessary for a certain purpose. The existence of such necessity is therefore a, question of fact, and the authority to determine such fact must rest somewhere. The Constitution does not confer it_ upon any tribunal. It must therefore necessarily reside with that department of the government which is called upon to exercise the power. It is a question of which the Legislature alone must be the judge, and, when it decides the fact to exist, its action is final. * *• * [Italics ours.]
“But, it is argued, what remedy will the people have if the Legislature, either intentionally or through mistake, declares falsely or erroneously that a given law is necessary for the purposes stated? The obvious answer is that the power has been vested in that body, and its decision can no more be questioned or reviewed than the decision of the highest court in a case over which it has jurisdiction. Nor should it be supposed that the Legislature will disregard its duty, or fail to observe the mandates of the Constitution. The courts have no more right to distrust the Legislature than it has to distrust the courts. The Constitution has wisely divided the government into three separate and distinct departments, and has provided that no person charged with official duties under one of these departments shall exercise any of the functions of another, except as in the Constitution expressly provided. Const, art. 3, § 1. It is true that power of any kind may be abused when in unworthy hands. That, however, would not be a sufficient reason for one co-ordinate branch of the government to assign for attempting to limit the power and authority of another department. If either of the departments, in the exercise of the powers vested in it, should exercise them erroneously or wrongfully, the remedy is with the people, and must be found, as said by Mr. Justice Strahan in Biggs v. McBride, supra [17 Or. 640, 21 P. 878, 5 L. R. A. 115], in the ballot box.”
In Van Kleeck v. Ramer, supra, the Supreme Court of Colorado was considering the effect of a legislative determination that the law in question was necessary for the immediate preservation of the public peace, health, and safety, as including it in the class of laws excepted from the referendum. Chief Justice Gabbert in the opinion stated:
“During the process of the enactment of a law the Legislature is required to pass upon all questions of necessity and expediency connected therewith. The existence of such necessity is a question of fact, which the General Assembly in the exercise of its legislative functions must determine; and under the constitutional provision above quoted, that fact cannot be reviewed, called in question, nor be determined by the courts. It is a question of which the Legislature alone is the judge, and when it determines the fact to exist, its action is final. The courts cannot be advised what facts the General Assembly acted upon when it determined that a statute was necessary for the purposes specified, and to undertake to review its action upon a question of fact would be a collateral attack upon its judgment. The General Assembly has full power to pass laws for the purposes with respect to which the referendum cannot be ordered, and when it decides by declaring in the body of an act that it is necessary for the immediate preservation of the public peace, health, or safety, it exercises a constitutional power exclusively vested in it, and hence such declaration is conclusive upon the courts in so far as it abridges the right to invoke the referendum. Kadderly v. Portland, 44 Or. 118, 74 P. 710, 75 P. 222; Oklahoma City v. Shields, 22 Okl. 265, 100 P. 559; State v. Moore, 76 Ark. 197, 88 S. W. 881, 70 L. R. A. 671; State ex rel. Lavin v. Bacon, 14 S. D. 394, 85 N. W. 605. To conclude the contrary would violate the constitutional provision to which we have referred, the plain object of which is to inhibit one department of government exercising any power that by the Constitution is vested in another. The Constitution defines the powers and duties of each department, and should the courts venture to substitute their judgment for that of the Legislature in any case where the Constitution has vested the Legislature with power over the subject, they would enter upon a field where it is impossible to set limits to their authority, and where their discretion alone would measure the extent of their interference. Cooley’s Constitutional Limitations (7th Ed.) 236.
“The argument of counsel for petitioner that the courts are vested with authority to determine whether an act is of the character which excepts it from the referendum, notwithstanding the declaration by the General Assembly that it is, is based upon the assumption that unless the courts exercise the power to determine that question, the people can be deprived of the .right to refer a law, if the Legislature, either intentionally or through mistake, declares falsely or erroneously that a law is necessary for the immediate preservation of the public peace, health, or safety. The answer tc) this proposition is that under the Constitution the General Assembly is vested with exclusive power to determine that question, and its decision can no more be( questioned or reviewed than the decision of this court in a case over which it has jurisdiction. It will not be presumed that the General Assembly will disregard its duty or fail to observe the mandates of tlies Constitution, or not act honestly. Neither can it be assumed that the courts are better able to determine whether a law is immediately necessary for the preservation of the public peace, health, or safety than the Legislature. Power may be abused, but that is not a valid reason for one co-ordinate branch of the government to assign for limiting the power and authority of another department. The judicial department is as much bound by constitutional provisions as any other. ‘It cannot run a race of opinions upon points of right reason and expediency with the law-making power.’ The courts do not make Constitutions or change them. They can only construe the provisions of that instrument. So that the only power we can exercise in solving the question presented is to ascertain where' the authority to determine, when a law is exempt from the referendum, is lodged. The cases cited by counsel for petitioner from Washington and California, holding that the question of whether a law is necessary for the purposes specified is subject to review by the courts, appear to be grounded upon the assumption that the constitutional provisions, with respect to the initiative and referendum, should be construed so as to make effective the power of the referendum. State v. Meath, 84 Wash. 302, 147 P. 11; McClure v. Nye, 22 Cal. App. 248, 133 P. 1145. In the Washington case, and also in a Michigan case, cited by counsel (Attorney General v. Lindsay, 178 Mich. 524, 145 N. W. 98), it is held that the authority of the Legislature to make the declaration that an act is necessary for the immediate preservation of the public peace, health, or safety is confined to such laws as the Legislature may legally enact under the police power of the state. Neither of these reasons furnish the test by which to ascertain whether the courts-have authority to determine if a law is of the» character which exempts it from the refer endum, or inquire whether the declaration of the Legislature that it is, is false or erroneous.
“The only test is, what department of government is authorized, under the Constitution, to determine whether an act is necessary for the purposes specified. This authority, as we have pointed out, is vested in-the General Assembly, and if that body erroneously or wrongfully exercises that authority, the remedy is with the people.”
The Supreme Court of Oklahoma in Oklahoma City v. Shields, supra, speaking through Chief Justice Williams, said: “Most unquestionably, those who make the laws are required, in the process of their enactment, to pass upon all questions of expediency and necessity connected therewith, and must therefore determine whether a given law is necessary for the preservation of the public peace, health, and safety. It has always been the rule, and is now everywhere understood, that the judgment of the legislative and executive departments as to wisdom, expediency, or necessity of any given law is conclusive on the courts, and cannot be reviewed or called in question by them. * * * The existence of such necessity is therefore a question of fact, and the authority to determine such fact must rest somewhere. The Constitution does not confer it upon any tribunal. It must, therefore, necessarily reside with that department of the government which is called upon to exercise the power. It is a question of which the Legislature alone must be the judge, and, when it decides the fact to exist, its action is final.
In the late case of Stanley v. Gates, supra, the Supreme Court of Arkansas, adhering to its former decisions touching upon the finality of a legislative determination, said: “Likewise its action is supreme in declaring when an emergency exists; and if it states a fact or facts constituting the emergency so that its action cannot be said to be arbitrary, the courts cannot say to it that it has or has not performed its constitutional duty. The three departments of government are of equal dignity and no one of them can encroach upon the other. The emergency clause in the act as signed by the Governor differs in no essential respect from the one alleged to have been in the act when passed by the Legislature. Whether the facts are stated in a concise or more extended form is a matter that concerns the Legislature alone. The courts might disagree with the Legislature about the necessity of action and be of the opinion that the facts declared did not constitute a sufficient reason for immediate action; but we are of the opinion that a declaration by the Legislature of an emergency based upon certain facts stated is conclusive upon the courts, and upon all parties in so far as it abridges the right involved in the referendum. Hanson v. Hodges, 109 Ark. 479, 160 S. W. 392; W. E. Jumper v. I. N. McCollum (Ark. June 24, 1929) [179 Ark. 837], 18 S.W.(2d) 359; and In re Senate Resolution No. 4, 54 Colo. 262, 130 P. 333.”
Also in Diaz Cintron v. Porto Rico, supra, the United States Circuit Court of Appeals of the Eirst Circuit, speaking through Circuit Judge Johnson, said: “The act of the Legislature of Porto Rico dealing with the district court of Ponce states that the act is of urgent nature and is imperatively necessary for the rapid and efficient administration of justice. The fact of the emergency which existed was for the sole determination of the Legislature in the manner provided by the Organic Act, and is not reviewable by the courts.”
Twenty-five years after the doctrine of Kadderly v. City of Portland was first announced, we find the Supreme Court of Oregon reaffirming it hi Roy v. Beveridge, 125 Or. 92, 266 P. 230, 232, in the following language, to wit: “In other words, in order for a legislative act, whether passed by the Legislature or a city council, to be effective as an emergency measure, it must appear that, in the judgment of the Legislature, the immediate efficacy of the act or ordinance is necessary for the immediate preservation of the peace, health, or safety of the community, and in Kadderly v. Portland, 44 Or. 118, 74 P. 710, 75 P. 222, this court in an exhaustive and masterly opinion by Justice Robert S. Bean held that power of determining existence of such an emergency was exclusively with the Legislature, and that the courts had no authority to question that determination. That opinion is supported by the great weight of authority and has been consistently followed by this court since that date.”
On the contrary, the Supreme Court of Washington, as shown by the majority and minority opinions in State ex rel. Short v. Hinkle, 116 Wash. 1, 198 P. 535, 537, and the still later opinion in State ex rel. Reiter v. Hinkle, 161 Wash. 652, 297 P. 1071, has sought to explain and minimize the effect of its earlier decision in the case of State ex rel. Brislawn v. Meath, supra, as note from the language of the majority opinion in State ex rel. Short v. Hinkle, where it is said: “The Legislature possessed the opportunity (and is conclusively presumed to have availed itself of that opportunity) to know the facts and has declared that a precarious financial condition prevails. We are asked to say that the solemn statement of the Legislature is false, and to say so, not because we are possessed of any knowledge upon the subject, but because we are ignorant upon it. We can take no testimony; we have no machinery with which to gather the facts, which the Legislature is presumed to be possessed of, but, totally in the dark, we are asked to substitute our personal prejudices, predilections, and preconceptions for the presumably enlightened judgment of those deputed by the Constitution of the state to inquire into and determine these factual problems. It is only when the court, following the Brislawn Case, can say, from its judicial knowledge, that a patent contradiction exists upon the face of a legislative enactment, that, in law or in reason, it can deny the legislative declaration of emergency.”
Likewise, and as pointed out by the author of the case note in 7 A. L. R. 519, 520, doubt is thrown upon the rule in California as announced in Re Hoffman, 155 Cal. 114, 99 P. 517, 132 Am. St. Rep. 75, and McClure v. Nye, supra, by the later decision in Ex parte McDermott, 180 Cal. 783, 183 P. 437, where the court, dealing with the effect óf a de dared and properly phrased emergency clause to an act defining criminal syndicalism, said: “The courts may not say that this conclusion of the Legislature was not justified.”
Nor is it the case as suggested in the opinion of the majority in the Montana case of State v. Stewart, supra, that the Oklahoma courts have in any manner receded from the position announced in Oklahoma City v. Shields as disclosed by the later case of Riley v. Carico, 27 Okl. 33, 110 P. 738. The Shields Case is cited in the Riley Case. It would be passing strange under such circumstances that the court should overrule by implication rather than expressly a case so patently in mind as to be cited in the overruling opinion. And we find such is not the case. Section 58 of article 5 of the Oklahoma Constitution empowering the Legislature by a two-thirds vote to place laws in immediate effect when immediately necessary for the preservation of the public peace, health, or safety declared that an emergency measure should not include among other things any act making provision for “the renting or encumbrance of real property for a longer term than one year.” The drainage bonds authorized by the act before the court would have constituted, when issued, a lien,on real estate for ten years, and the act authorizing them was of a class expressly excepted from the Legislature’s power to make emergent.
Practically all of the cases denying finality to the legislative determination that an emergency exists are hypothesized on the proposition that the power may be abused. But, as pointed out in many of the decisions contra, it is no test of the existence of a power to assert that it may be abused. See Proposed Middle Rio Grande Conservancy Dist., 31 N. M. 188, 242 P. 683. And it would ill become one co-ordinate department of the government to deny to another the free exercise of a power residing with it upon the assumption that the power might be abused. The Constitution wisely places some restraint upon the legislative exercise of the power by requiring a concurrence of a two-thirds majority in each house as a condition precedent to declaring an emergency.
The determination "of whether an emergency exists is purely a question of fact. It is almost axiomatic that, when power to enact depends upon the existence of certain facts, it will be presumed that the Legislature found the existence of those facts before assuming to act. See Stevenson v. Colgan, 91 Cal. 649, 27 P. 1089, 1090, 14 L. R. A. 459, 25 Am. St. Rep. 230. As said by the court in the case just cited: “When the right to enact a law depends upon the existence of facts, it is the duty of the legislature before passing the bill, and of the governor before approving it, to become satisfied, in some appropriate way, that the facts exist; and no authority is conferred upon the courts to hear evidence and determine, as a question of fact, whether these coordinate departments of the state government have properly discharged such duty. The authority and duty to ascertain the facts which ought to control legislative action are, from the necessity of the case, devolved by the constitution upon those to whom it has given the power to legislate, and their decision that the facts exist is conclusive upon the courts, in the absence of an explicit provision in the constitution giving the judiciary the right to review such action.”
Article 3, § 1, N. M. Const., distributes the powers of government into three departments, the legislative, executive, and judicial, and enjoins upon us that: “No person or collection of persons charged with the exercise of powers properly belonging to one of these departments, shall exercise any potoers [italics ours] properly belonging to either of the others, except as in this constitution otherwise expressly directed or permitted.”
All will agree, even those asserting the power of the courts in the premises, that the exercise of the power in question is a legislative function in the first instance. They merely claim a right of review in the courts. When they make this concession, as they must, they destroy the premise upon which their entire argument is builded. For they must further admit that the Constitution does not expressly give into the hands of the courts the power to exercise this purely legislative function, a fact adverted to in many of the decisions. Lacking express power or direction to perform a legislative function, we are precluded by express constitutional mandate from doing so upon any assumption or implication of right so to do.
This view is in accord with previous decisions of this court. In Kelley v. Marron, 21 N. M. 239, 153 P. 262, 263, it was early decided that the courts would not look beyond a properly authenticated legislative act, certified and signed as required by the Constitution, to the journal of either house for the purpose of determining whether such act was read in full therein, after it had been enrolled and engrossed, as required by section 20, art. 4, of the Constitution. The court, speaking through Mr. Chief Justice Roberts, said:
“Section 1, art. 3, of the Constitution expressly prohibits the exercise by one of the departments of government of powers belonging to another department, ‘except as in this Constitution expressly directed or permitted,’ and no express grant of power is given to the judiciary to supervise the acts and conduct of the Legislature in the passage of a legislative act.
“In our Constitution the judicial department is given certain broad powers, and the jurisdiction of the various courts is defined. In certain contingencies the Supreme Court is authorized to call in a district judge to sit in place of one of the regular judges of the court. No one would contend that either of the other departments of government would have the right to question a judgment of the court, upon the ground that it did not have the right to call in a district, judge who might have participated in the opinion. Could the Legislature by an act disapprove of a judgment of the Supreme Court, on the ground that some procedure prescribed by the Constitution had not been complied with? The Governor is given the right to act in a certain way upon his finding that certain facts exist. Could either of the other departments legally call in question his act, upon the ground that he had erroneously determined the facts upon which his action was predicated? The very statement of the assumption of the right of either of the other departments to question the acts and judgments of the judiciary is so shocking to the mind that it demonstrates the fallacy of the proposition that the judicial department has the power to go behind the duly and properly authenticated act of the Legislature to see whether there has been compliance with constitutional directions as to its method of procedure. If that proposition were correct, then the three branches of our government are not equal and co-ordinate, as generally supposed; but the judicial branch of the government is paramount to each of the others, and is invested with the power and charged with the duty of exercising a supervisory control over both the other departments of government, and of seeing to it that such departments act and perform their functions, not according to their interpretations of the constitutional mode of doing the act undertaken, but as the judicial branch of the government may interpret the fundamental law as to the method of procedure.”
See, also, Asplund v. Hannett, 31 N. M. 641, 249 P. 1074, 58 A. L. R. 573; State v. Sanchez, 32 N. M. 265, 255 P. 1077, 1087, and State v. Fifth Judicial District Court, 36 N. M. 151, 9 P.(2d) 691.
In the Sanchez Case, supra, one involving 'the power of the Governor to remove officers appointed by him, we held:
“The only inquiry left open to the court in this sort of proceeding is whether the cause assigned for removal is one for which the Constitution authorizes a removal to be made. If it is, the Governor acted within his jurisdiction in making it, 'no matter how grievously he might err in judgment.
“The order of removal in this case assigns a constitutional cause for' removal, and is therefore conclusive on the courts.”
It follows from what has been said that the trial court was correct in refusing to go behind the legislative declaration of an emergency contained in the act in question. That determination was final and conclusive and binding upon the courts.
It does not necessarily follow, and we are far from intending to suggest, that the same conelusiveness we accord to the legislative declaration in this case, involving only the immediate or postponed effect of the statute, is to be given such a declaration as precluding an attack by referendum, when the latter question shall 'be properly before us.
It is next contended that the act in question violates the due process clause of the state and Federal Constitutions (Const. N. M. art. 2, § 18; Const. U. S. Amend. 14). Upon what theory this phase of the case was submitted to the trial court does not appear. The plaintiff merely alleged that, if the threatened tax sale occurred, the defendant would in due course issue tax sale certificate apd tax deed, thereby divesting him of his property without due process of law. In what respect due process is lacking is no where pointed out or even suggested. The complaint simply avers that the act does not constitute due process. No issue was tendered by such an allegation, and the trial court’s action was proper for that reason if for no other.
Certain reasons are now urged in this court as to why due process is lacking in ■the enactment in question, as that the notice of sale provided for is not required to con tain a description of the property to be sold. But, without knowing whether the trial court ever heard, considered, or ruled upon any such questions, they are not before us. Nevertheless, it may be said that in an able opinion by the late Mr. Justice Parker, Maxwell v. Page, 23 N. M. 356, 168 P. 492, 5 A. L. R. 155, this court long ago held that the constitutional guaranty against the taking of property without due process of law relates itself, in taxation proceedings, to the essentials of taxation only.
The remaining questions involve the contention by plaintiff that Laws 1933, c. 171, the act assailed, is in conflict with other prior statutory enactments such as the “Bateman Act,” 1929 Coanp. § 33-4241; the so-called “Budget Law,” 1929 Comp. §§ 33-5901 to 33-5908, and Laws 1933, c. 109, known as g. B. 241, remitting penalties and interest upon delinquent taxes, if paid within a stated period. Without pausing to consider whether the conflict claimed exists in fact, if it does, as so pertinently remarked by the trial judge, the later act simply repeals the earlier to the extent of any irreconcilable conflict.
The judgment of the lower court was proper, and should be affirmed. It is so ordered.
WATSON, C. J., and HUDSPETH, BIOKLEX, and ZINN, JJ., concur. | [
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HUDSPETH, J.
This case is controlled by No. 3802, In Matter of Complaint of Robert Hoath La Follette et al. v. Rates of Albuquerque Gas & Electric Company (N. M.) 17 P.(2d) 944, just decided; the only issue being the jurisdiction of the State Corporation Commission for the purposes of rate regulation over respondent, which owns and operates the local water light ■plants, supplying its products to the inhabitants of Santa Fé.
For the reasons stated in No. 3802, we must ■decline to enforce the order of the commission ; and it is so ordered.
BICKLEY, C. J., and WATSON and SADLER, JJ., concur.
NEAL, J., did not participate.
37 N. M. 57. | [
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HUDSPETH, Justice.
This is a suit to quiet title to 370 acres of land described by metes and bounds, a part of the Las Vegas grant. The decree went for the interveners and defendants on cross-complaints, and plaintiff brings the case to us for review.
The court found that appellant’s possession was without color of title, a requisite under our statute, 1929 Comp., § 83-119 and section 83-122. Appellant relied upon the unprobated will of his mother as color of title, and assigned the refusal of the court to admit the will in evidence as the point for reversal. This purported will was filed in the probate court and notice given of the time of the hearing, but no order admitting the will to probate appears of record. The only mention of appellant in the will appears in the residuary clause, which reads as follows, to wit:
“All the residue of my estate, real, personal and mixed, wheresoever it may be found, and of whatsoever it may consist, I give and devise unto my children, Alphinia Bringhurst, formerly Alphinia Chaffin, Zachariah Green, Eli Green, John Green, Ellen Nissen, Bessie Rogers, Fredrick William Cutler and Alfred Cutler, share and share alike, to hold to them and their heirs forever.”
Other provisions of the will are:
“I give and devise unto my son, Alfred Floyd Cutler, my large dwelling house a short distance east of the Mora road and north of the City of Las Yegas, New Mexico, and three acres in one body adjoining said dwelling house to be selected by my son, Alfred Floyd Outleiv * * *
“I give and devise unto my daughter, Sarah Cutler, my small three room adobe dwelling house lying to the east of the above described premises, and one acre of land in one body adjoining thereto to be selected by her after my death.”
The court found, and the finding is not challenged here, as follows: “That from the time he took possession and claimed to own the property in his own right he held the same adverse to everyone, including his father; Alfred G. Green, and the heirs of his mother, Martha G. Green.”
The objections to the sufficiency of the will as color of title are: (1) That it has not been admitted to probate (28 R. C. L. 357; Case Note, Ann. Cas. 1916A, 887); (2) assuming that the appellant might rely upon the will as color of title, he would have only an undivided one-eighth interest, since the theory of one cotenant’s possession being the possession of all is eliminated by the finding of the trial court that appellant held adverse to the heirs of his mother (Bradford v. Armijo, 28 N. M. 288, 210 P. 1070); (3) that the purported will does not contain a description of the land sufficient to constitute the same color of title.
Without considering the first and second objections, we are of the opinion that the .trial court should be sustained on the third ground urged.
The rule is stated in 2 C. J. 195, as follows: “A devise of land may give color of title, possession under which for the statutory period will ripen into a good title by adverse possession. As is the case with deeds, a will, to constitute color of title must purport to convey the land to the claimant thereunder or to those with whom he is in privity, and should contain such a description of the land that it may be identified.”
To the same effect is the holding in Binkley v. Switzer, 75 Colo. 1, 223 P. 757. It has been held that the principal office of color of title is to define boundaries. Blacksburg Mining & Manufacturing Co. v. Bell, 125 Va. 565, 100 S. E. 806.
It is the theory of appellant that by reference to the provisions of the will devising the houses, which he maintains are within the outboundaries of the land involved in this suit, sufficient evidence of the location of the land is found within the will to authorize oral testimony as to its boundaries and to identify the land involved in this suit as that referred to in the residuary clause of the will. It is often held that parol evidence is permissible to apply but not to supply description. Tuthill v. Katz, 163 Mich. 618, 128 N. W. 757; Cummins v. Riordon, 84 Kan. 791, 115 P. 568. The residuary clause contains no description of any particular tract. Taking the will alone, claim might bo made to 30,000 acres of the Las Yegas land grant as well as to the 370 acres. There is nothing whatever in this clause of the will to identify the land as being that claimed by defendant. It is necessary to call for information not referred to in the will in order to identify the land in suit. There must be at least a descriptive word in the written instrument relied upon as color of title which furnishes the key to the identity. Colonial & U. S. Mtg. Co. v. Lee, 95 Ark. 253, 129 S. W. 84. Where the grantor points out the boundaries on the ground to the purchaser, oral testimony is not admissible to identify the boundaries. McMahon v. Plumb, 88 Conn. 547, 92 A. 113.
The will contains no description of any character to put any one on notice as to the boundaries claimed, and we encounter no difficulty in concluding that the description therein given is not sufficient to constitute the instrument color of title. The decree will, therefore, be affirmed; and it is so ordered.
WATSON, C. X, and SADLER, BICK-LEY, and ZINN, JJ., concur, ' | [
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ZINN, Justice.
The issues presented in this case are identical with those presented and decided in the case of Board of County Commissioners v. Wasson, 37 N. M. 503, 24 P.(2d) 1098, except in the amounts awarded. In this ease the original award was $70, and the final award $900.
The decision in the case of Board of County Commissioners v. Wasson, supra, and the rules of law announced therein, are adhered to and approved as the law in this case. For the reasons therein stated, this cause must he reversed and remanded, with instructions to deny the appellees’ motion to vacate and reinstate the final judgment entered for appellant.
It is so ordered.
WATSON, C. J., and SADLER and BICKLEY, JJ., concur. | [
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HUDSPETH, Justice.
Appellant was convicted, under chapter 10 of the 1923 Session Laws, of unlawfully giving intoxicating liquor to a minor and sentenced to a term in the penitentiary of not less than one year and not more than eighteen months. Erom the conviction and sentence he prosecutes an appeal to this court.
The first point relied upon for reversal is that the evidence is insufficient to sustain the jury’s verdict of appellant’s guilt.
Ruby Washburn, the twenty-year old minor to whom appellant was charged with having given liquor, was the principal witness for the state and the only witness who directly testified that appellant had committed the offense. Her testimony on the issue was flatly contradicted by appellant and by two witnesses for the defense in whose presence Rhby testified the offense had been committed. Two other witnesses who were with her shortly after the alleged commission of the offense, and at" a time when, according to her testimony, she was intoxicated, testified that she "seemed entirely sober, and that they noticed no evidences of intoxication on her part.
There was no motion for a directed verdict made, either at the close of the state’s case or at the close of the entire case, and the question of the sufficiency of the testimony of the prosecuting witness to serve as a basis for the jury’s verdict was raised for the first time upon motion for a new trial. Appellant cannot therefore demand, as of right, a review of the question.
This court has, in some instances, in the exercise of its inherent power to prevent injustice, set aside verdicts of guilt not warranted by the evidence, in spite of a failure on the part of the defendant to take proper steps in the trial court to entitle him to a consideration in this court of the question of the sufficiency of the evidence. See State v. Garcia, 19 N. M. 414, 143 P. 1012; State v. Armijo, 25 N. M. 666, 187 P. 553; State v. Taylor, 32 N. M. 163, 252 P. 984; State v. Berry, 36 N. M. 318, 14 P.(2d) 434. We are not convinced, however, that the circumstances of the ease at bar are such as to warrant interference by this court with the conclusion reached by the jury.
As a general rule, the testimony of a single witness may legally suffice as evidence - upon which the jury may found a verdict of guilt. Wigmore on Evidence, § 2034; Fairchild v. Commonwealth, 208 Ky. 527, 271 S.W. 584; Hammer v. United States (C. C. A.) 6 F.(2d) 786, at page 789; Hiner v. State, 89 Ind. App. 152, 166 N. E. 20; State v. Pipkin, 221 Mo. 453, 120 S. W. 17. The rule, which is said by Wigmore to he a corollary to the principle that “credibility does not depend upon the numbers of witnesses,” has been held to apply even where the witness upon whose uncorroborated .testimony the conviction was based was not merely the prosecuting witness, but the victim of the offense itself. See State v. Smith, 190 Mo. 706, 90 S. W. 440; State v. Perry (Iowa) 105 N. W. 507.
In this state it has been held that a man may not be convicted of the crime of rape on the testimony of the prosecutrix alone, if that testimony is not corroborated by circumstances which coincide with, and lend credence to, her testimony. See State v. Armijo, 25 N. M. 666, 187 P. 553; State v. Clevenger, 27 N. M. 466, 202 P. 687; State v. Taylor, 32 N. M. 163, 252 P. 984. Appellant urges that the rule laid down in the rape cases be applied to the case at bar. The crime of rape is generally considered to be a very heinous one, and the nature of the offense is such that the alleged injured woman is likely to be the principal witness. Neither of these features are characteristics of the offense involved in the case at bar. While, because of circumstances which it would serve no useful purpose to set out here, there, is reason to carefully scrutinize the testimony of the prosecutrix in the case at bar, we do not feel that the strict rule applied to the testimony of a prosecutrix in a rape case should be extended to the offense here involved.
There was no inherent improbability in the story narrated by the prosecuting witness, nor was her story shaken in any material particulars on cross-examination. The verdict of the jury will not he set aside merely because this court is not satisfied beyond all reasonable doubt of defendant’s guilt. See State v. Frazier, 17 N. M. 535, 131 P. 502.
Appellant’s second and third points are directed to the contention that the verdict of the jury was based, not upon the evidence in the case, but upon sympathy for the prosecuting witness, aroused by her conduct in weeping throughout the closing argument for the state. The only mention of the occurrence complained of is contained in appellant’s motion for a new trial. Whether or not the statements of fact contained in the motion are true we have no way of knowing. The happening of the alleged prejudicial occurrence not having been settled as part of the bill of exceptions, it cannot be considered on this appeal. State v. Balles, 24 N. M. 16, 172 P. 196; State v. Hawkins, 25 N. M. 515, 184 P. 977; see, also, Render v. Commonwealth, 206 Ky. 1, 206 S. W. 914, 915; Jent v. Commonwealth, 209 Ky. 59, 272 S. W. 29.
A careful examination of the record does not convince us that there has been a miscarriage of justice in this case. The judg xnent appealed from will therefore be affirmed. It is so ordered.
WATSON, O. J., and SADLER, BICKLEY, and ZINN, JJ., concur. | [
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WATSON, Chief Justice.
Appellant shot and killed Constantino-Garde in Lincoln county. The venue was changed to Dona Ana county, where he was tried and convicted of murder in the second degree.-
The deceased had been a sheep owner. But, being in default under a mortgage, he had turned the sheep over to a bank in satisfaction of the debt; retaining for a few months an option to repurchase them. In the meantime the bank engaged pasture for them on a ranch owned by appellant’s father, but practically managed by appellant. The deceased was engaged at a stated monthly wage to care for the sheep, and appellant was engaged in a more or less supervisory capacity to protect the bank’s interests.
This arrangement does not seem to have resulted in any open quarrel. It is evident, however, that the parties did not work in harmony. Appellant says that the deceased disregarded in sullen silence such authority as he had or assumed. On the day of the homicide appellant had gone to Carrizozo to report to the bank a particular instance of improper handling of the sheep, and had been reassured by the bank that he was expected to look after its interests and directed that if there should be another occurrence of the kind he should report it and send Mr. Garde in. Returning from that interview, he proceeded, accompanied by one Davis, the only eyewitness, to report its result to the deceased.
The immediate circumstances, as testified by appellant and corroborated by Davis, were these: As appellant and Davis drove up to the sheep camp, the deceased was standing in front of it. Appellant stepped out of the car and addressed to' the deceased the single word, “Constantino,” his name. The deceased immediately “broke and ran” to his own car, distant a few paces, took his rifle from the car, leveled it at appellant, and attempted to fire. There was some failure of the gun action which prevented a discharge; Appellant, thus in peril, retreated a step or two to his own car, a coupé, took his pistol from the shelf behind the seat, and rapidly poured its contents upon the deceased, causing his death.
If this be the truth and the whole truth, ■appellant should of course have been acquitted. Appellant strongly urges that there was no substantial evidence to support the verdict.
It seems to be well established in this jurisdiction that it is within the province of the jury to imply malice in a case where a killing with a deadly weapon has been established. State v. Parks, 25 N. M. 395, 183 P. 433; State v. Smith, 26 N. M. 482, 194 P. 869; Territory v. Gutierrez, 13 N. M. 138, 79 P. 716; Territory v. Lucero, 8 N. M. 543, 46 P. 18. Appellant is in the unfortunate position of having failed to impress the jury with the truth of his claim of self-defense. Hie jury was not bound to accept it. It is not for this court to concern itself with such elements of improbability as it may contain, nor with the small circumstances in evidence which no doubt impressed the jury. Under instructions, of which there is no complaint, the jury has announced itself convinced beyond a reasonable doubt that appellant killed in malice. Wé cannot disturb the verdict.
Davis was, of course, an important witness, and his credibility was highly in question. The extent to which the state should be permitted to go in testing it was largely in the discretion of the trial court. A careful review of the cross-examination discloses nothing on which to base a reversal.
During the progress of the trial appellant’s counsel asked that the widow of the deceased be excluded from the courtroom. This is a matter generally within the discretion of the trial court, and the record discloses no abuse of it.
The proposition perhaps most strongly urged upon us does not involve any particular claim of error on the part of the trial court. It points out numerous incidents of the trial; commencing with the opening statement to the jury, to which no objection was made at the time; including the rigor of' the cross-examination of appellant, and his witness Davis; the insistence upon the widow’s presence at the counsel table, and unnecessarily placing her upon the witness stand; attempts to adduce incompetent evidence, insinuations and implications of facts not provable or which could not be proved; all it is claimed manifesting an excess of zeal and unfair tactics on the part of the prosecution, so calculated to prejudice the jury that appellant cannot be said to have had a fair trial.
The state contends that this is a matter upon which a timely ruling was not invoked, and which we cannot therefore consider; that even if there were merit in the contention, it was the duty of appellant, prior to submi'ssiofl. of the cause, to move for a mistrial; and that, not having done so, he is in the position of having gambled on the verdict and must take the consequences.
Under the circumstances of the case, we deem it unnecessary to decide this law point: This was a vigorous prosecution — necessarily so to combat the strong defense. While we do not approve all that was done, we have not found such evidence of bad faith or misconduct on the part of the district attorney, or of prejudice to appellant, as would probably have moved discretion to stop the trial. We are well satisfied that it is not a case in which we should overturn the verdict.
We feel constrained to affirm the judgment. It is so ordered.
SADLER, BICKLEY, and ZINN, JJ., concur.
HUDSPETH, J., did not participate. | [
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SADLER, Justice.
The defendant was convicted in the district court of Curry county of receiving stolen property, to wit, certain automobile tires of the value of $33.85, and sentenced to a term of not less than one year nor more than eighteen months in the state penitentiary. He prosecutes this appeal from the judgment of conviction rendered against him.
The conviction is based upon an information containing two counts charging defendant and another in the first'count with larceny of the tiros and in the second with receiving same knowing them to have been stolon. The trial court withdrew from the jury the larceny charge contained in the first count, submitting only the charge of unlawfully receiving the property. The verdict was guilty as to this defendant and not guilty as to his codefendant.
The tires in question were the property of Western Tire Stores, Incorporated, managed and owned by W. J. Patton. The latter testified that about July 9, 1931, he missed seven tires from his stock. At the time there had been in his employ for about two weeks a negro youth by the name of Booker T. Henry. The two defendants at the trial below are both youths of the same race as Henry. Investigating, to locate if possible the missing tires, Manager Patton observed a coupé on First street in Clovis with three of his tires on it. Inquiring of the occupants of the house near which the car stood, the defendant, Miles Craft, first asserted ownership of the car, then, when asked where he got the tires, claimed the car belonged to a boy in Roswell. A woman occupant of the same house then stepped out and said the tires came from Booker T. Henry.
Manager Patton immediately went up town, and in about ten minutes had returned with two officers. In the meantime the car with the stolon tires had disappeared. The defendant, Russell,, was not seen on the occasion of either visit. Search was immediately instituted for him, and a little while later he was apprehended a few miles from, and driving toward, Clovis in the same ear and with the stolen tires still on it. When apprehended, according to the testimony of the officers, he said, “He thought he would get away, but he knew we would catch him and he would just come back.”
A few days later the negro youth, Booker T. Henry, was questioned by Deputy Sheriff’ Lamison in the office of the sheriff, concerning the theft of the tires. The questioning was in the presence and hearing of the defendant, Russell. Sheriff Witherspoon was also present. Both the sheriff and his deputy testified that the youth, Booker T. Henry, admitted stealing the tires, but explained that he did so at the suggestion and through the persuasion of the defendant, Russell. This testimony is as follows:-
“Q. Mr. Eamison, I wish you would relate to the jury, as nearly as you can, the conversation you had with Craft, in the presence of the Defendant Russell and the Sheriff, in tho Sheriff’s office. A. We didn’t have any conversation with Craft in the presence of Russell.
*'Q. I understood you to say Russell was present? A. Russell was; it was not Craft.
“Q. I meant Booker Henry? A. Yes, sir. We asked him about getting some casings from the Federal Tire Store, and he said he got them and let Earnest Russell have them. We asked him how he came to do it, and he said Russell asked him to do it; he said he had never stolen anything in his life before and never was in trouble, had always been a good nigger all his life, and never had trouble anywhere.
“Q. Did he state what he was to do with the casings after they were stolen? A.-He was to turn them over to Russell; he was to get them and deliver them to him.
“Q. What was that? A. He was to get the casings and deliver them to Russell.
“Q. Do you recall whether or not the Defendant Russell made any statement at that time? A. He said he bought the casings from Booker.
“Q. Said what? A. Said he bought the casings from Booker.”
The defendant, Russell, claimed to have paid Booker T. Henry $4 for each tire. The tires were shown to have a value of slightly more than $11 each. Manager Patton of the tire store admitted that tires of the quality of these would not be readily distinguished by the untrained eye through outward appearance from a cheaper grade of tires selling as low as $3.85.
The yopth who stole the tires pleaded guilty, and was sentenced to the penitentiary. At the trial he repudiated his story as related by the sheriff and his deputy- and appeared as a witness for the defense. The defendant claimed to have been ignorant of the fact that the tires were stolen.
The foregoing recital of testimony, while not complete, is a sufficient résumé thereof for the purposes of this opinion.
The first point relied upon for reversal is the alleged error of the court in refusing to permit the defendant to show that, following his arrest, he paid the true owner for the stolen tires. The proffered testimony was clearly inadmissible, taking on the character of self-serving acts and statements.
Next, it is urged that the verdict of the jury is without substantial support in the evidence. In this position defendant seeks support from the circumstance that, while the statute, section 35-1701, Comp. St. 1929, makes criminal the buying, receiving, or aiding in the concealment of stolen property, knowing same to have been stolen, the court saw fit to charge the jury conjunctively instead of disjunctively. The defendant argues the instruction thus became the law of the case, and that unless the evidence is substantial that he did all these things, viz., bought, received, and concealed, with guilty knowledge, there must be a reversal.
The information defined the offense conjunctively just as did the instruction.
“Where a penal statute makes it criminal to do a certain thing in different ways, an indictment based thereon may charge in a single count that the defendant did the forbidden thing by all of the specified means, so long as the means are not repugnant and where the conjunctive ‘and’ is used where the statute uses ‘or,’ and such a count is not duplicitous, and the proof at the trial may establish any^ of the means charged.” State v. McKinley, 30 N. M. 54, 227 P. 757, 759.
But in presenting this point the defendant starts out upon a false premise, viz., that de- ■ fendant’s first guilty knowledge of the transaction arose when the owner of the tire store discovered the stolen tires on his car. If we accept, without questioning, defendant’s view on the effect of the instruction, we still are unable to see wherein he is aided. For here the evidence is substantial that he bought, received, and aided in concealing the stolen tires.
Without attempting to restate the evidence, it is enough to refer to his attempted flight upon discovery by the owner of the tires on his car, his failure to deny the accusation in his presence by, Booker T. Henry that he, the defendant, had asked him to steal the tires, his purchase at much below their value of new tires from a negro youth known to be employed in a tire store, and whose mere possession of the tires under the circumstances here shown was enough to arouse suspicion.
Finally, it is insisted there was a fatal variance between the information and the proof, in that the former laid ownership of the stolen property in “Western Tire Store, a corporation,” whereas the proof disclosed ownership in “Western Tire Stores, Incorporated.” It perhaps would be a sufficient answer to this claim of error to state that it was first suggested below in the motion for new trial. Ordinarily variance cannot be taken advantage of after verdict. 31 O. J. S79. The objection is technical, Territory v. Leslie, 15 N. M. 240, 106 P. 378, does not tend to prejudice the substantial rights of the defendant upon the merits, and would seem to be within the protection of sections 35-4411, 35-4415, Comp. St. 1929.
For the reasons disclosed by the opinion, the judgment of the lower court must be affirmed, and it is so ordered.
WATSON, O. J., and HUDSPETH, BICKLEY, and ZINN, JJ., concur. | [
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OPINION OE THE COURT
ROBERTS, J.
This suit was instituted in the district court of Sandoval county by appellant for the purpose of quieting his title to several different tracts of land situated in said county and being within the limits of the Alameda land grant. The different tracts of land which he claimed were set forth in his complaint and were designated by numbers. The appellees San Mateo Land Company and others appeared and answered and also filed a cross-complaint. > A reply and answer were filed by appellant to the answer and cross-complaint of the appellees. The case was tried to the court, and appellant had judgment as to all the tracts in question, save tracts 12 and 16. As to these two tracts, the court found that the appellees were the owners thereof and quieted their title to the same. To review the judgment this appeal is prosecuted. .
The appellant relies upon three propositions for a reversal, viz.: (a) Appellees were not entitled to affirmative relief on the pleadings; (b) the judgment quieting appellees, title to tracts 12 and 16 is unsupported by any competent evidence; (c) appellant’s title to tracts 12 and 16 should have been quieted. These propositions will be discussed under two general heads.
First, as to the pleadings': In appellees’ answer and cross-complaint, after denying generally the facts set forth in the complaint, it was further alleged that appellees were the owners of each and all of the tracts of land described in the complaint. The objection urged against the cross-complaint here is that it did not set forth the nature and extent of appellees’ estate; that it did not describe the premises, and did not allege that there was an adverse claim thereto.
No demurrer or motion to make more specific was interposed to the cross-complaint in the court below, but it was treated as sufficient by counsel for appellant, and it is proper to say that appellant was not represented in the court, below by the attorneys now appearing for him in this court. Appellant filed an answer to the cross-complaint, and the court and all the parties in the court below construed the pleadings as presenting the issues of appellees’ right to affirmative relief quieting their title to the tracts in question. The court at the conclusion of the evidence made findings of fact. and stated conclusions of law amply supporting the judgment. Appellant at no time in the court below raised any contention as to the sufficiency of the cross-complaint or cross-bill filed by appellees to warrant affirmative relief. The parties in the court below having treated the cross-complaint as sufficient to present the issue as to appellees’ right to affirmative relief quieting their title, and the judgment presumptively being supported by the evidence, the cross-complaint will be amended in this court in aid of the judgment. In the case of Canavan v. Canavan, 17 N. M. 503, 131 Pac. 493; Ann. Cas. 1915B, 1064, this court said:
“Where a material, even jurisdictional fact, omitted from the complaint, is as fully litigated, without objection, as if said fact had been put in issue by the .pleadings, it is 'the duty of the trial court,.and of this court on appeal, to amend the complaint in aid of the judgment, so as to allege the omitted fact.”
Appellant argues, however, that the proof in support of the omitted allegations was competent under the answer, hence the matters omitted from the cross-complaint were not litigated; but, as we have said, all the parties and the court below treated the pleadings as presenting the right of appellees to affirmative relief under the cross-complaint or cross-bill, and appellant will be held to the same theory here. Caldwell v. Higginbotham, 20 N. M. 482, 151, Pac. 315.
As to the second point, appellant relied in the court below upon adverse possession under color of title. He admits that the evidence was conflicting as to adverse possession and that he is concluded here by the findings of the trial court against him. The point which he makes is, not that the judgment refusing to quiet his title was erroneous, but that the court erred in quieting the title of appellees as to the tracts 12 and 16, in that there was no substantial evidence establishing appellees ’ title. There are two answers to this contention: First, the court made findings of fact in which it was found that the appellees had title and all other necessary facts to support the judgment. Only a general exception was saved as to the findings and conclusions of law. In the case of Fullen v. Fullen, 21 N. M.- 212, 153 Pac. 294, this court held that it would consider only such questions as were raised in the court below. In that case the appellant in this court objected to certain findings oñ the ground that they were not supported by the evidence, and it was held that the objections were not available here because the question had not been presented to the trial court. Where findings made by a trial court are erroneous because not'in accordance with the evidence, it is the duty of the party aggrieved thereby to call the trial court’s attention to the error and seek its correction there.
But this objection will not be here reviewed for the further reason that appellant has not brought to this court a full and complete transcript of the proceedings below. It is apparent that the^bill of exceptions does not contain all the evidence introduced, and there is no certificate by the trial, judge that the omitted portions aré immaterial. The bill of exceptions shows that the record, pleadings, and proceedings in cause No. 7126, Bernalillo district court, Vicente Montoya, Plaintiff, v. Unknown Heirs of Montes Vigil, Deceased, involving the title to the Alameda land grant, was put in evidence in so far as the same might be material. Only a.portion of this record, pleadings, and proceedings appears in the bill of exceptions. It is true, the official court reporter certified that the evidence included was all that was introduced, but the bill of exceptions is settled and certified to by the judge of the district court — not by the court reporter.
“Upon a doubtful or deficient record, every presumption is indulged in favor of the correctness and regularity of the decision of the trial court.” Street v. Smith, 15 N. M. 95, 103 Pac. 644; Teroritory v. Herrera, 11 N. M. 129, 141, 66 Pac. 523; Witt v. Cuneod, 9 N. M. 143, 145, 50 Pac. 328; Sloan v. Territory, 6 N. M. 80, 27 Pac. 416.
Assuming for the sake of argument that the evidence incorporated into the bill of exceptions fails to show title in appellees, which is by no means clear, it will be presumed that the omitted evidence supplied proof of title and warranted the judgment entered.
The judgment will be affirmed, and it is so ordered.
PARKER, C. J., and HOLLOMAN, District Judge, concur. | [
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OPINION OP THE COURT.
ROBERTS, J.
This suit was instituted by the state of New Mexico, at the relation of Henry F. Stephens, by petition in mandamus, praying that the appellants be directed by peremptory writ to issue to him a salary voucher in the sum of $150, covering salary for the month of October, 1917. Upon the filing of the petition the court below directed issuance of an alternative writ, which was issued and served on the respondents on November 27, 1917. The respondents in their return to the alternative writ denied that it was their duty to issue to relator a voucher for salary covering the month of October, 1917, and alleged that the services of said relator had been terminated by said State Corporation Commission on September 30, 1917; and, further, by way of amendment, and as a reason urged by them against the granting of a peremptory writ, alleged that such a writ should not be issued because it would prove unavailing, in that the contingent expense account, out of which relator’s salary was payable, had been exhausted, having been drawn to balance by midnight of November 30th, the end of the fifth fiscal year, following service upon them of the alternative writ on November 27th.
At the trial, however, it was proven that the action relied upon to terminate the employment of relator as of September 30, 1917, was concurred in by only one of the two commissioners present at the meeting and within the state of New Mexico at such time. It appeared that at such time, and during all of the month of October, 1917, Commissioner Groves was absent from the state of New Mexico, and was sojourning at San Antonio, in the state of Texas; that Commissioner Williams favored the termination of relator's employment as of September 30, 1917, and Commissioner Montoya opposed such action. Commissioner Williams, relying upon a motion signed by Commissioner Groves while sojourning in Texas, favoring such action, as chairman of the Commission declared the motion carried. Furthermore, at the trial a power of attorney from Commissioner Groves to Commissioner Williams was offered in evidence as showing authority in Commissioner Williams to cast the vote of Commissioner Groves at such meeting in favor of the action sought to be taken. In addition, as a witness, Commissioner Groves at the trial declared that he at such time affirmed the action that Commissioner Williams had attempted to take by virtue of the authority contained in said power of attorney.
At the trial, however, it was proven that between the time of service upon them of the alternative writ and midnight of November 30th, the close of the fifth fiscal year, the respondents had drawn upon said contingent expense account in an amount in excess of $1,000, and that at the close of the fifth fiscal year, on, to wit, November 30th, the last day thereof, there still being a balance to the credit of the said contingent expense account of approximately $170, according to the books of the State Auditor, the respondents used said balance for the purchase of postage stamps, which admittedly were for use during the sixth fiscal year.
It was further shown that the Commission had issued vouchers against the contingent expense fund, for moneys which should have been paid out of other funds, and that there was a large balance in such other funds.
Un February 8, 1918, the court rendered judgment directing the issuance of a peremptory writ commanding the respondents to issue to relator a voucher covering salary for October, 1917, as prayed, and made finding of fact and stated conclusions of law which fully support the judgment. From this judgment an appeal was allowed, without supersedeas.
Appellee, having presented his voucher to the State Auditor for the issuance of a warrant for presentation to the State Treasurer for payment, and the State Audit- or having refused to issue a warrant, upon the ground that the contingent expense fund for the fifth fiscal year appeared upon his books as drawn to balance, filed his motion praying that said appellants be compelled to amend their return by designating said voucher as payable out of the contingent expense account of said Corporation Commission for the sixth fiscal year instead of the fifth. The right to such relief was based upon the fact shown by the record that he had traced into the contingent expense fund for such year more than sufficient funds of the fifth fiscal year, belonging to such fund, to pay such claim. The court, after a hearing, entered an order directing appellants to amend their return as prayed. From such order appellants appealed, and were allowed supersedeas.
Appellee has filed a motion to dismiss the appeals upon the ground that double appeals have been joined. This question, in view of our decision upon the merits, need not be considered.
As to the merits: In their brief in this court appellants do not contend that appellee was discharged as assistant rate clerk of the Corporation Commission by order made by the Commission upon the vote of Comissioner Groves under the power of attorney, said Groves being absent at the time, sojourning in the state of Texas. This being true, this question may be laid aside, and we will assume, as appellants apparently have, that Stephens was in the employ of the Corporation Commission until November 1, 1917; that he was entitled to salary at the rate of $150 per month for services rendered during the month of October; that the Commission refused to draw a voucher for such salary, by which only he could procure a warrant from the State Auditor.
The first point arising for consideration, therefore, is as to whether or not mandamus was the appropriate remedy to compel the issuance to relator by the Corporation Commission of the salary voucher in payment for such services for the month of October, 1917. In 26 Cyc. 171, it is said :
“The remedy which will supersede mandamus may be described in general terms as one competent to afford relief upon the very subject-matter in question, and which is equally convenient, beneficial, and effectual. * * * It has been held that mandamus will lie when other existing remedies are tedious, are not sufficiently speedy, or in case they have become obsolete, or are circuitous.”
A similar question was involved in the case of State v. McQuade, 36 Wash. 579, 79 Pac. 207. The respondents, as directors of a school district, refused to issue to relator a warrant covering his salary for one month. The lower court dismissed the petition. The Supreme Court in the course of its opinion said:
“After the filing of the amended return a trial of the issues was entered upon, at which the appellant offered himself and one W. E. Holland as witnesses; their evidence tending to support the right of the appellant to the relief demanded by him. The court, however, after the appellant had testified, and in the course of the examination of Mr. Holland, on motion of the respondents, dismissed the proceedings on the ground that it was not a case in which mandamus would lie; remarking, while giving the reasons for his conclusion, that, if the rule were otherwise, he did not think the evidence offered made a case entitling the appellant to a writ.
“On both questions we think the learned trial judge was in error. By virtue of the statute the writ of mandamus may issue to any inferior tribunal, board, or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station; and clearly it was the duty of this school board to draw a warrant for the appellant’s salary as a teacher, if any such salary was due him. As his contract with the district provided that he was to be paid by a warrant drawn by the school board on the county treasurer, in no other way was he entitled to receive payment for his services; and, unless he can force the board to act, it is difficult to see how he is going to get paid at all. An action at law against the district will not furnish him relief. The most he could obtain by such an action would be a judgment against the district, which would entitle him to a warant drawn by the directors on the county treasurer. He could not obtain a judgment which could be collected by execution. If the judgment was not paid.voluntarily — if the directors still refused to act of their own volition — he would yet have to resort to mandamus to secure his rights.
“It would seem, therefore, that in reason the claimant could resort to the remedy of mandamus in the first instance.”
To tbe same effect was Ross v. Board of Education, 18 Cal. App. 222, 122 Pac. 967.
Here there was no question but that appellee had been employed by the Commission as assistant rate clerk at a salary of $150 per month; that he had performed the services required under such employment, and that he was entitled to a voucher therefor clearly. Mandamus was the appropriate remedy to compel issuance of such voucher; in fact, mandamus was the only adequate remedy open to him.
The next question is as to whether the court properly sustained the motion of appellee to compel the amendment of the return by respondents by making upon the voucher issued an indorsement directing payment thereof from the contingent expense account of the sixth fiscal year.
After the appellants had, in compliance with the peremptory writ of mandamus, issued a voucher to appellee, the appellee presented the same to the State Auditor, and the State Auditor refused to issue a warrant for said voucher, for the reason, as stated by him, that the contingent expense account of the State Corporation Commission for the fifth fiscal year appeared upon his books as drawn to balance. Thereupon the appellee, through his attorney, filed his motion praying that the appellants be compelled to amend their return by designating upon said voucher that the same should be payable from the contingent expense account of the sixth fiscal jmar; and as grounds therefor showed by admitted facts in the case that the appellants had, after - the service upon them of the alternative writ of mandamus, drawn vouchers against the same to an amount far in excess of appellee’s claim, and that on the last day of the fifth fiscal year, to wit, November 30, 1917, they had purchased postage stamps in the sum of $168.44, which were for use, and could only be used, during the sixth or ensuing fiscal year. The appellee further showed, by admitted evidence,- that there was by specific appropriation an available fund of $900 for the use of the Commission in the employment of an additional stenographer; that said $900 was not used by said Commission for the purpose for which it was appropriated or for any other purpose, and was wholly unexpended at the end of said fifth fiscal year; that said Commission did during the fifth fiscal year employ an additional stenographer monthly by vouchers drawn on the contingent expense account. Having traced into the contingent expense account of the sixth fiscal year funds in excess of the amount of his claim, the appellee urged, and the court below sustained his contention, that he was entitled to have his voucher made payable from the contingent expense account of the sixth fiscal year.
In considering this question it may be well to quote section 5 of chapter 86 of the Session Laws of 1915, as follows:
“At the end of each fiscal year and after any appropriations and expenditures which may be required to be paid out of any particular fund or funds shall have been paid, all the surplus which may remain in any or either one of the particular funds shall be transferred by the Staté Auditor and Treasurer to the credit of the same fund for the following- fiscal year.”
When the alternative writ was served upon the respondents it became and was their duty to notify the State Auditor that here was a claim which, in the words of the statute, "might be required” to be paid out of the appropriation for that fiscal year, and to request him to withhold such sum for paying said claim if the court issuing the writ should hold the same was a legitimate indebtedness on the part of the State Corporation Commission. They not only failed to do this, but proceeded to expend the entire balance remaining to the credit of said fund on tbe books of tbe State Auditor, and then actually pleaded such fact as reason why tbe court should deny the relator the relief prayed for. The command of the alternative writ was that they issue to relator a voucher in the sum demanded, or on a date named, which was, to be sure, subsequent to the end of the fifth fiscal year, show cause why they had not done so. Their answer should have spoken as of the date the alternative writ was served upon them, and they could not properly place it beyond their power to comply with the peremptory writ, when issued, and then plead such fact in defense. Their answer constituted no legal justification. High’s Extra. Leg. Rem. § 14; State ex rel. Davis v. Cornell, 60 Neb. 694, 84 N. W. 87; Hutcheson v. Manson, 131 Ga. 264, 62 S. E. 189; Hemphill v. Coulter (Ky.) 67 S. W. 3; People ex rel, Dannat v. Comptroller of the City of New York, 77 N. Y. 45; People v. Treanor, 15 App. Div. 508, 44 N. Y. Supp. 528; City of Columbia v. Spigener (S. C.) 67 S. E. 552, 554, 555.
In State v. Cornell, supra, the Supreme Court of Nebraska in its opinion declared the law in a manner peculiarly applicable to the case at bar. It stated:
“Authorities cited by the Attorney General (State v. Babcock, 22 Neb. 33, 33N. W. 709; People v. Needles, 96 Ill. 575; People v. Lippincott, 64 Ill. 256; People v. Swigert, 107 Ill. 404) sustain the view that no lawful claim against an appropriation can come into existence after the end of the period for which the appropriation was made, but beyond this they do not go. Section 19, rat. 3, of the Constitution requires that ‘each Legislature shall make appropriations for the expenses of the government until the expiration of the first fiscal quarter after the adjournment of the next regular session, and all appropriations shall end with such fiscal quarter.’ When a fund has been set apart in obedience to the provision quoted, it is, of course, the intention of the Constitution that those who became entitled to any portion of it shall receive such portion, and that at the expiration of the designated period the appropriation shall cease to be effective as to the unexpended balance. Such balance, within the meaning of the Constitution, is the portion of the fund remaining after all proper claims against it have been paid. The legislative authority to draw money from the treasury for the satisfaction of a just claim does not become extinguished by the wrongful refusal of auditing officers to ex ercise theii’ functions within the px’oper time.- A creditoi- of the state does not forfeit his x'ight to money due him because the state agents refuse to perform duties with which they are charged. The declaration in section 19 aforesaid, that ‘all appropriations shall end with such fiscal quarter,’ is made on the assumption that the authority given by appropx-iation bills will be exercised in favor of all pex'sons having valid claims on the treasury. It does not intend that sxxch authority shall cease when, by reason of official misconduct, it has not. been exercised to the extent it should have been. The legality of the relator’s claim has been judicially established, and it is the duty of the state to pay it — to do now what it should have done before. When a law imposes a duty upon a public officer to do an official act at a particular time, the obligation is ordinarily a continuing one; and the courts will, when it is pi-acticable, coerce performance after the appointed time has gone by.”
In Hutcheson v. Manson, supra, decided by the Supreme Court of Georgia, the respondent sought to defeat mandamus by showing that the particular fund out of which relator’s claim was payable had been exhausted. The court, after referring to a former decision in which the same defense had been interposed, said;
“Under that decision it is clear that the fact that the ordinary did not have in his possession or control the funds which he had collected fi'om the hire of the misdemeanor convicts, from which to pay petitioner’s oi'ders for insolvent costs, as solicitor of the city coui't, was no reason for denying a mandamus absolute, when it appeared that the ordinary had himself disbursed such funds in violation of the law.”
In City of Columbia v. Spigener the court makes a somewhat extensive review of the question, and, after referring to the rule that ordinarily mandamus will not issue to compel the making of a warrant where there are no funds to pay it, said:
“But to apply this rule so as to allow an officer to escape the writ of mandamus when the lack of funds was due to his own wrongful disbursement of them would be to allow the commission of official wrong to excuse the neglect of official duty. When an officer receives public funds which the law requires him to pay to certain persons, such persons, when they have no other adequate legal remedy, are entitled to the writ of mandamus on showing that the officer refuses to disburse as required by law; and the officer should not be heard to say that he cannot apply the funds as the law directs, as he has already misapplied them. The acceptance by the court of such an excuse would make it possible for the officer, by evasion and wrong, to set - at naught the power of the court to protect by mandamus the public credit and .the rights of public creditors by requiring of officers prompt compliance with law in the disbursement of public funds.”
In People v. Treanor, supra, tbe respondent took tbe same position that has been taken by the respondents in this case. The court said:
‘‘The appellants further contend that a writ of mandamus to compel the payment of the amount due will not issue where there are no funds out of which they can make payment, and that the evidence conclusively shows that there are no such funds. To permit this contention would be to allow the commissioners to set up their own wrongdoing as a defense. The act provides a specific method for the use of the bonds. They were ‘delivered to said commissioners to be paid out by them at not less than par, in liquidation of the said damages, costs, charges, and expenses of laying out, opening, and constructing the said road, or, at their option, to be sold at not less than par, and the proceeds thereof applied as aforesaid.’ This was the clear mandate of the act, which is the charter of their existence. It was, at once, their sword and shield. They could use the bonds as the act indicated. They could be compelled to no other disposition of them, and their defense, either to an action for a money demand or to an application for a writ of mandamus, would have been that, while they could not dispose of the bonds at par, they were willing to pay them to the contractors in liquidation of their claim. That they are able to do neither is a result of their own illegal act. * * *
“In our use of the words ‘wrongful’ and ‘illegal,’ as applied to the action of the commissioners, we do not intend to imply that their action was occasioned by any moral obliquity on their part, or that they did not act as they thought was for the best interest of the matter in their charge; but we are dealing solely with the legal deductions that must follow their action, and we agree with the views expressed by the learned trial justice, that there is nothing to impugn the uprightness and integrity of the defendants. It may well be that the commissioners will be subjected by this procedure to imprisonment for contempt, in case of their disobedience of the final judgment; but that is a matter which will receive careful attention when it is presented for consideration, although, it cannot be permitted to influence our conclusion.”
The appellee showed beyond any question of doubt, however, that, in order to exhaust the contingent ex pense account, it was necessary, on the last day of the fifth fiscal year, to purchase postage stamps in excess of the amount of his claim, which stamps were for use, and could only be used, during the sixth fiscal year, and were consequently a legitimate charge against the appropriation for that year. In legal contemplation it is as though the appellee had traced just so much money, instead of postage stamps, into the contingent expense account for the sixth fiscal year.
The question as to the right of the contingent expense fund to reimbursement for the $900 improperly paid out of such fund for the services of a stenographer may be laid aside, for without this amount there was sufficient money in the fund, had it not been diverted for the purchase of stamps for the next ensuing year, to have paid any warrant that might have been issued upon the voucher for relator’s salary.
In directing the voucher to be designated as payable from the contingent* expense account of the sixth fiscal year, the court, sitting on its equity side, brushed aside all subterfuge, and form and looked at the naked facts asi thejr really were. Its action, in effect, restored to the contingent expense account of the fifth fiscal year for the payment of this voucher, a fund which passed into the contingent expense account for the sixth fiscal year, and which in equity and good conscience should be restored.
It is finally insisted by appellants that the court erred in awarding costs against them. It is well established, however, that where an officer refuses to perform a mere ministerial 'duty, such as signing a voucher for salary earned, he is liable to relator for costs incurred in compelling the performance of such duty by mandamus proceedings. Code 1915, § 4282; 26 Cyc. 512-513; Roberts v. United States, 13 App. D. C. 38, affirmed 176 U. S. 221, 20 Sup. Ct. 376, 44 L. Ed. 443; State v. Carlson, 72 Neb. 837, 101 N. W. 1004.
At page 513 of 26 Cyc. it is said:
“Public officers are liable in costs for any duty they are required to perform by law.”
Iii the case of Roberts v. United States, supra, it was held that in mandamus proceedings against the Treasurer of the United States, in his official capacity, the fact of his being a public officer did not preclude costs being awarded against him personally, if he were the unsuccessful party.
And in State v. Carlson, supra, the Supreme Court of Nebraska held that where public officers refused to perform a statutory duty, and were compelled to do so by mandamus, the costs would be adjudged against them, where the relator was without fault, though the officers were acting in obedience to an injunction supposed by them to be valid, but which in fact was void for want of power of the court to issue.
In this case the duty of respondents with respect to issuing a voucher to relator was plain, and for almost a year he has been deprived of his salary for the month in question, and has been compelled to resort to mandamus to secure his rights, and, in addition to taxable costs, is compelled to pay attorney’s fees. Certainly respondents were properly held for the costs.
For the foregoing reasons the judgment of the district court will be affirmed; and it is so ordered.
Hanna, C. J., and Parker, J., concur. | [
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OPINION OP THE COURT.
RAYNOLDS, J.
Appellant was convicted for the larceny of a calf. After denial of a motion for a new trial appellant was sentenced by the court to serve a term in the penitentiary from one year to eighteen months. From the conviction and the sentence imposed thereon he appeals to this court and assigns as errors for reversal the following:
(1) That there was no substantial evidence to support the verdict.
(2) That the court erred in refusing to grant appellant’s motion for a directed verdict of not guilty at the conclusion of the state’s evidence in chief.
(3) That the court erred in refusing to grant appellant’s motion, at the conclusion of the state’s evidence in chief, requiring the prosecution to elect which one of the two animals the alleged larceny of which the stale intended to rely for a conviction, the testimony showing two distinct animals, and the indictment alleging the larceny of one only.
In regard to the first assignment, we have read the record carefully, and it appears therefrom that on the state’s ease in chief the complaining witness testified she owned two calves, kept them in a pasture near her house, and they were branded with her brand; that on a certain day they were missing, and she found them 40 miles away in the defendant’s pasture newly branded with his brand and earmark; that he agreed to give her two other cows for them; that the second day after finding them in his pasture she returned to get them and they had disappeared. She then had the defendant arrested. This evidence was corroborated in part by her son as to finding and identifying the animals, and by two other witnesses who testified as to her ownership oi the calves in question, and the fact that defendant had moved his cattle to his pasture about the time her calves had been missed by her. There was evidence in conflict with that of the complaining witness introduced by the defense, and also further evidence in rebuttal by the state.
We believe the first assignment of error is not well taken. As was said in Territory v. De Gutman, 8 N. M. 92, at page 95, 42 Pac. 68, 69;
“The main point contended for is that the evidence of itself and in itself is insufficient in law to warrant the conviction. We have carefully read and considered the evidence, and think it fully and sufficiently sustains the verdict. The jury passed upon the conflicting testimony, and determined where the weight and credit lay. Their verdict cannot be disturbed on appeal. Territory v. Webb, 2 N. M. 154; Territory v. Trujillo, 7 N. M. 43 [32 Pac. 154].”
The evidence set out above was given by the witnesses for the prosecution in the state’s case in chief, and we hold that it was not an error for the trial court to refuse to grant appellant’s motion to direct a verdict of not guilty at the close of.the state’s case in chief. There was substantial evidence in this case that the crime as charged under the allegations of the indictment had been committed, and the court properly submitted the ease to the jury.
“As a general rule tbe court should not direct a verdict of acquittal where there is any evidence to support, or reasonably tending to support, the charge.’' 16 C. J., Criminal Law, p. 936, par. 2299.
Appellant contends that the court should have compelled the state to elect, at the conclusion of the evidence in chief, as to which of the two animals the appellant was charged with having stolen.
“But the principle of election is applicable only where there is evidence of separate and distinct transactions; otherwise, an election will not be required.” 16 O. J., Criminal Law, p. 861, par. 2169,
Finding no error in the record, the judgment of the lower court is affirmed, and it is so ordered.
Parker, C. J. and Roberts, J., concur. | [
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OPINION OP THE COURT.
ROBERTS, J.
Appellee sued appellant and Esther Schmidt, his wife, for a commission for the sale of certain real estate. The complaint was in the ordinary form, alleged the employment of appellee to procure a purchaser for the real estate described, and that under the agreement between the parties it was agreed that if appellee should find a purchaser for said property, or any portion thereof, appellee was to receive a commission equal to 10 per cent, of the selling price received by defendants from such purchaser; that appellee had complied with his part of the contract and had furnished a purchaser; and that a sale had been consummated of certain real estate for $15,000. Appellee and his wife, in their answer, admitted the sale of the property to the parties named in the complaint, but denied all other allegations therein.
The case was tried by the court without a jury. Findings of fact were made and conclusions of law stated. The court found that Esther Schmidt was not a party to the contract and was not liable thereon, and judgment went in her favor. Appellee had judgment against appellant for $1,500, to review which this appeal is prosecuted.
Appellant relies upon two questions for a reversal which will be considered, in the order discussed in his brief. First, he contends that there was no substantial evidence supporting the findings and judgment, and that the court should have sustained his motion for judgment at the conclusion of appellee’s case in chief and a similar motion made when all the evidence was in. There is no merit in this contention. Appellant testified to the making of the contract by which he was to receive a commission of 10 per cent, of the purchase price in the event appellant sold less than’ the entire ranch property. If the entire property were sold, appellant was to receive $20,000 therefor net. After the making of the contract, appellee advertised in the El Paso papers and interested the firm of Davis-Snyder Company of El Paso, Tex., in the property. He visited El Paso and saw Mr. Davis, and Mr. Davis called up Mr. Snyder at Alamogordo while appellee was in the office, and arranged for him to visit the appellant and negotiate for the property, if found to be satisfactory. Less than the whole of the property was sold to the Davis-Snyder people for $15,000. It is true that appellant, in his testimony, disagreed with appellee as to the terms of the contract; but the trial court elected to believe appellee. It has been so often held by this court that findings of fact by a trial court will not be disturbed where suported by substantial evidence, and where the trial court heard the testimony and saw the witnesses, that citation of authority is unnecessary. There was ¡substantial evidence supporting the findings in this case; hence there was no error committed by the court in overruling appellant’s motions for judgment.
It is next urged that the facts found by the court, conceding that those facts found support the evidence, are not sufficient to sustain the conclusions of law drawn by the court and the judgment rendered. This contention iá based upon certain findings made by the court at the request of appellant. The court approved finding numbered 12, to the effect that the proof did not show that the plaintiff ever introduced any prospective purchaser of the said property to the defendant, either per sonally or by letter; and findings of fact numbered 5 and 6, to the effect that at the time of the sale by the defendant to the Davis-Snyder Company, John Snyder, a member of the company, with whom defendant negotiated said sale, did not know as a fact that the plaintiff had had anything to do with the sale, and, upon his being asked by the defendant if he had been sent by appellant to make the deal, replied truthfully that he knew nothing about the appellant in connection with the matter. The court found the making of the contract as alleged in the complaint, and that in pursuance with the contract the appellant interviewed either Charles Davis or Lamar Davis, or both of them, they being members of the partnership firm, composed of themselves and one John Snyder, doing business under the firm name of Davis-Snyder Company, and recommended said property to them, but that no contract of sale was entered into by the appellant on either of said trips; that, in pursuance of the efforts of appellee, John Snyder visited the appellant and purchased the property for the individuals composing said firm.
Appellant argues that it was incumbent upon appellee to have given appellant notice of the name of the prospective purchaser, and seemingly contends that the findings show that he failed to do this. He places a wrong construction upon “findings.” It was wholly immaterial as to whether Snyder knew appellee or had had any conversation with him relative to the sale. The question was as to whether or not the efforts of appellee were the procuring cause of the sale. The court was not asked to find that appellee had or had not notified appellant as to the name of the prospective purchaser. Appellee testified that he wrote appellant that he had interested the firm of Davis-Snyder Company. Appellant denied that he had given him the name of the firm. If appellee failed to comply with his contract and it was essential that he should have notified appellant as to the name of the purchaser he had found, this was a matter of defense, and the burden rested upon appellant to show failure in this regard. Where a special finding is silent on any material point, it is deemed to be found against the one having the burden of proof.
Probably the weight of authority is to the- effect that it is not necessary that the broker who contends that he found the purchaser to whom the property is sold should personally have conducted the negotiations between his principal and the purchaser, which have resulted in the sale, or even that the principal should, at the time, have known that the purchaser was one found by the broker. Mechem on Agency (2d Ed.) § 2435; 4 R.C.L. p. 321; and notes to the following cases: Quist v. Goodfellow, 8 L. R. A. (N. S.) 153, 9 Ann. Gas. 431; Smith v. Preiss 29 Ann. Cas. 1913D, 820. This rule is applied, so far as we know, without exception, where the purchase is made upon the terms prescribed in the contract between the principal and the broker. In some cases a distinction is made between the case of the broker who was employed to find a purchaser on certain prescribed terms, and the broker employed to find a purchaser upon terms which might prove satisfactory to the principal. In Meehem on Agency (2d Ed.) § 2436, it is said:
“In the former case, it is said to be no hardship to the principal if he be compelled to pay the commission for a purchaser upon the terms prescribed, although he did not know that the purchaser was one produced by the broker’s efforts, since, by the hypothesis, he has obtained the very price and terms for which he had agreed to pay the commission. But in the second case it may be a hardship to compel the payment of the commission, where the principal, in good faith and with nothing to indicate that he was dealing with the broker’s party, has presumptively assented to the price or terms realized upon the basis that no commission was demandable.”
This is trae in cases decided by the Supreme Court of Iowa. These cases will be found cited following section 2436, Meehem on Agency.
While in the present case the terms were not stated in the brokerage contract, in the event that less than the whole of the property was sold, yet appellant testified that he would have made the sale on the same terms to the purchaser had he known that the purchaser had been sent by appellee. Hence we see no reason why he should not be required to pay tbe commission, even under the Iowa rule. The reason for the exception to the general rule first stated is that it would not be equitable to charge the seller with the commission where the broker has failed to notify him of the name of the purchaser, and he sells for a less price than he otherwise would exact if he had known that he would be required to pay the comission. As appellant sold upon the same terms and for the same amount as he would have exacted had he been fully informed, there is no reason for the application of the rule contended for by appellant, even had the court found that he had no notice of the name of the prospective purchaser; but the court made no such findings, and was not asked to make it.
For the reasons stated, the judgment of the trial court will be affirmed, and it is so ordered.
Parker, C. J., and Raynolds, J., concur. | [
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OPINION OP THE COURT.
ROBERTS, J.
(after stating the facts as above).
The first proposition relied upon by appellant for a reversal here is that there was no sufficient information or affidavit of any person having knowledge of the facts. In a majority of the jurisdictions “the affidavit filed as the basis of a proceeding to punish for a contempt, not committed in the presence of the court, must state positive knowledge. If made upon information and belief, it is insufficient.” See note to the case of State v. Newton, 16 N. D. 151, 112 N. W. 52, 14 Ann. Cas. 1035. Appellant does not contend that the information in the present case shows, upon its face, that it was made upon information and belief, and indeed no such contention would be justifiable. The affidavit charges the offense in positive terms.
Appellant argues that the evidence in the case shows that Blake, the affiant, could have had no personal knowledge of the matters contained in the information. Blake, the affiant, did not testify as a witness in the case, and there is nothing apparent from the testimony of other witnesses which indicates that Blake had personal knowledge. Likewise, there is nothing in the record to show that he might not have had personal knowledge of the matters alleged in the information. In view of the fact that Blake was not a witness, did not testify, and the record discloses no affirmative evidence of his lack of knowledge, the charge that Blake had no actual knowledge of the facts set forth in his affidavit is not borne out by the record. Where the accusation in a contempt proceeding is in positive terms, and there is nothing in the record to show that the affiant did not have personal knowledge of the facts set forth in the accusation, the fact that the affiant did not testify as a witness in the case, and that the evidence did not affirmatively show knowledge on his part of such facts, will not divest the court of jurisdiction. It was not necessary in-this case to determine the question as to whether or not an affidavit in such a proceeding, based upon information and belief, would be sufficient to confer jurisdiction upon the court. No such affidavit was filed ill this case. As stated the affidavit was in positive terms.
The sole question here presented is whether or not it must affirmatively appear from the evidence that the affiant had direct and positive knowledge of the facts alleged and set forth in the petition. In the case of State v. Lund, 51 Kan. 1, 32 Pac. 657, it was held that, where an information is verified by the oath of a private person, it will be presumed, in the absence of a showing to the contrary, that he has actual knowledge of the facts stated therein. This we believe to be the correct rule. For this reason the court properly overruled the demurrer to the evidence based on this ground.
The nest proposition urged is that the affidavit wholly fails to set forth or charge any act constituting contempt of the court. This assignment is divided into four subheads, which will be considered in the order set forth in appellant’s brief. The first is:
“It affirmatively appears that at the time of the transactions and occurrences mentioned in the affidavit, the party, Victorio Ballejos, was not a witness before the court in which the contempt is charged to have been committed.”
In support of this proposition counsel allege that the witness Ballejos was in fact no longer a witness before the court, for the reason that he had concluded his testimony and had been told, ‘ ‘ That is all. ’1 They state that the process had been obeyed, the witness’ testimony had been concluded, and the spell of the process was no longer over the witness. The facts were that Ballejos had testified in the case,' had been excused, but had not been discharged from attendance upon the court. The evidence in the case had not been concluded at the time of the transaction charged in the accusation. He was subject to recall at any time. We think the trial court has the power to punish as for contempt any bribery, intimidation, or unlawful interference with a witness in a case on trial before such court until the trial of such case has been concluded and it is no longer possible for such witness to affect the result of the trial by changing his testimony or giving further testimony in the case. Some courts -even go to .the extent of holding that the witness is still before the court, so that tampering, or bribery, or assault upon such witness constitutes contempt of the court, even though the evidence in the case had been concluded--and the case has gone to the jury for its decision (Brannon v. Commonwealth, 162 Ky. 350, 172 S. W. 703, L. R. A. 1915D, 569), and this possibly is the correct rule; but in this case we are not required to go to that extent.
“A constructive contempt is an act done, not in the presence of the court, but at a distance, which tends to belittle, to degrade, or to obstruct, interrupt, prevent, or embarrass the administration of justice.” 13 C. J. 5.
Certainly the act charged against appellant tended to obstruct, interrupt, prevent, or embarrass the administration of justice. It was possible for the witness to be recalled in the case. In fact, appellant asked him to take the stand and change his former testimony, and held out to him, for the purpose of inducing him to do so, the fact that the party injured by his former testimony intended to prosecute him for perjury if he did not change his testimony. Therefore there is no justification in appellant’s- contention in this regard.
It is next urged that there is no allegation in the accusation that the appellant did or endeavored to do anything to prevail on Ballejos to swear falsely or to do anything that would make the transaction a contempt. The allegations of the accusation are that appellant attempted to persuade and prevail upon said Victorio Ballejos “to change his evidence,” to “change his testimony previously given and corroborate the testimony of two other witnesses.” The accusation says that, “unless he changed his testimony,” or “unless he changed his evidence, he might be indicted or punished for perjury or false swearing.” Also that appellant “willfully tampered and attempted, by threats, to procure said Victorio Ballejos to retract and change his testimony.”
Appellant contends that the accusation nowhere alleged that appellant attempted to procure Victorio Baílelos to swear falsely, to perjure himself, or to give false testimony; and he contends that an attempt to get a man to tell the truth is not contempt of court. He contends that the adjudicated cases all hold that it is contempt of court to use threatening language to a witness about to^ be examined, or to use either persuasive or threatening language to a witness for the purpose of making him testify falsely, or not to testify, or to attempt to intimidate witnesses, knowing they have been instructed by the court not to talk about the case; and eases of this import will be found cited in notes to section 48, p. 38, 13 C. J. It must be conceded that the cases cited go only to the extent of holding that it is contempt of court to attempt, by threats or bribery, to induce a witness to testify falsely. The question which appellant urges upon the court has, so far as our research has extended, never been decided, and counsel on either side have cited no case directly in point, but, on principle, we do not believe that appellant’s contention is sound. The purpose of a trial is to arrive at the truth of the contested issue, and this question can only be ascertained by the testimony of witnesses, and this testimony, if it is to be believed and carry conviction, must be given by the witness without fear or favor. In other words, The witness must recite the facts as he understands and remembers them, and the testimony which he is to give to the court and jury must not be put into his mouth by others. The ascertainment of truth requires that' the witness must tell his own story; in his own words, under the sanctity of his oath, without persuasion, intimidation, or bribery. Here the witness had told his story, and presumptively he told the truth. Appellant informed him that, unless he changed his testimony to correspond with that given by two other witnesses who apparently had testified to a different state of facts, one of the parties to the case, who had apparently been prejudiced by his testimony, would prosecute him for perjury.
Appellant’s intention in talking to his friend, Ballejos, may not have been inspired by bad motives, and it may be that he did not want his friend, Ballejos, to testify to anything that was false, but courts of justice cannot tolerate or permit any interference with witnesses by parties or others; and, in order to secure the impartial administration of justice, they must see to it that there is no interference with the witnesses in the case. If appellant’s position is sound, then in every case where a witness is bribed or intimidated and the party offering the bribe, or attempting to intimidate the witnesses, brought before the court upon a charge of contempt, the inquiry would necessarily go beyond the question as to whether or not the bribe was offered or the intimidation attempted, and the court would be required to determine whether or not the offending party had attempted to influence the witness to testify to a fact which was not true. Certainly this contention is unsound, and the only inquiry required in such a case is whether or not the party, by threats-or bribery, or other‘unlawful means, attempted to induce the witness to testify to a certain state of facts. It is not the fact, or the truth of a given fact, which such a party desires a witness to testify to, but the unlawful and unwarranted interference with the witness and the course of justice which brings punishment upon the head of the offender. Hence there is no merit in this contention.
It is next argued that the affidavit fails to charge that appellant wilfully, knowingly, and with intent did or committed any act which was sufficient to constitute a contempt. It is unnecessary for the accusation to charge the intent in a contempt proceeding. The affidavit is sufficient if the facts therein stated constitute a contempt. If they do, then the intent becomes immaterial. It is the acts done by the contemner and the acts alone that are looked to in a determination of the offense. In the case of Dodge v. State, 140 Ind. 284, 39 N. E. 745, the court said:
“In determining' whether or not a contempt has been committed, it does not depend upon the intention of the offending party, but upon the act he has done.”
“Disclaimer of intentional disrespect or design to embarrass the due administration of justice is no excuse, especially where the facts constituting the contempt are admitted, or where a contempt is clearly apparent from the circumstances surrounding the commission of the act.” 13 C. J. 45.
Here a contempt was clearly apparent from the circumstances surrounding the commission of the act.
The next assignments in counsel’s brief are as follows: (a) No offense is charged; (b) there is no contempt proven; (c) there was no tampering with any witness; (d) it affirmatively appears from the evidence that none of the matters complained of amount to a- contempt. These points will all be discussed together as they practically involve the same question.
The offense charged in the affidavit and the facts as proved on the trial are practically the same. In substance, the offense charged and the evidence show the following facts: A certain trial was pending wherein the man, Arictorio Ballejos, had given certain testimony. The evening after the giving of such testimony the appellant, Augustin Kayser, was present- when a certain conversation was had between one of the defendants in the case pending, Col. Prichard, and his attorney, in which Prichard said that he was going to institute a-prosecution for perjury against Yictorio Ballejos and have him indicted on account of the testimony the said Ballejos had given that day. It further appears that the appellant, some few hours later, in company with two other men, went to the room where the said Ballejos was sleeping, and appellant related the conversation to Ballejos, and told him that if he did not change his testimony that Col. Prichard was going to have him indicted for perjury. It further appears from the evidence that Kayser and Ballejos were lodge brothers, and were neighbors and friends. The explanation of this conduct is that Kayser was simply acting as a friend of Ballejos, and was endeavoring to protect him, Ballejos, and induce him to tell the truth. It also appears that two other witnesses on the trial of the main case had testified differently from Ballejos, and Kayser endeavored to have Ballejos corroborate the testimony given by these witnesses. The question is, Is this sufficient to constitute a contempt of court?
Counsel state that the offense of contempt of court is something that tends to belittle, degrade, embarrass, or disgrace the court, or impedes the due administration of justice. We think this statement as a general rule is correct, and that any acts or conduct that does belittle, degrade, embarrass, or disgrace the court or impedes the due administration of justice is a contempt of court. They say the actions of the defendant in this case were to further rather than impede the administration of justice. Supposing this is correct; suppose the only intention of the defendant was to assist the court in the administration of justice, would it be any less ■ contempt? We think not. The general rule is that courts are for the purpose of and it is their fundamental province to administer justice between parties according to the facts established in a given case, and to receive from witnesses their own conception of the facts in any case, without let or hindrance from any person. If a person attempts to influence a witness by means of persuasion, bribery, or otherwise, his acts are none the less contempt because he means well. It is the interference with the witness and the attempt to influence him, as to the testimony he will or will not give, that constitutes the offense. Anything that hinders or influences a witness invades the province of the court to receive unbiased, unprejudiced, and uninfluenced evidence, and .constitutes to that extent an obstruction of justice. The general rule in this regard is stated in 8 R. C. L. § 346, where it is said:
“The great object of their (courts) existence is the ascertainment of truth in its relations to the transactions of men, and this can only be done fairly and impartially when all persons having knowledge of the transaction inquired of are brought or allowed to come before them for examination without let or hindrance from any one.”
The above quotation, which appears under the general subject of obstructing justice, we think clearly states the rule applicable to the present case. There is no dispute but that he went to the man, Ballejos, and attempted to influence his testimony. This is admitted throughout the entire trial, and stands forth plain and uncontradicted. It alone is sufficient to justify the conviction of the appellant and authorize the court in fixing the punishment it did, regardless of the intention of the appellant.
Counsel insist that there were no threats or other overt acts shown, no bribery, etc., but this contention is without merit. When Kayser went to the witness and told him that a prosecution for perjury would result unless he changed his testimony to corroborate the testimony of two other witnesses who had testified differently, he clearly threatened the witness. No greater inducement could be hung over a witness’ head than the threat of indictment for perjury, even though it was made under the guise of friendship. Such a guise only makes it the worse, and is calculated to have more effect. In the case of Murphy v. Wright, 167 Iowa, 75, 148, N. W. 985, the court said:
“The trial courts are charged with the duty and necessity of guarding- their proceedings against everything which interferes, or tends to interfere, with the due and orderly administration of justice.”
Clearly there is no merit in any of the contentions referred to.
It is next argued that appellant had completely purged himself of any contempt by his disclaimer of any intent to contempt the court or show any want of due regard for its. authority, and 'that such disclaimer on the part of appellant was sufficient to purge him of any offense that existed. This could only avail the appellant in the matter of punishment, not as a defense. The general rule is:
“Disclaimer of intentional disrespect or design to embarrass the due administration of justice is as a rule no excuse, especially -where the facts constituting- the contempt are admitted or where a contempt is clearly apparent from the circumstances surrounding the commission of the act.” 9 Cyc. 25.
In the ease of United States v. Shipp, 203 U. S. 563, 27 Sup. Ct. 165, 8 Ann. Cas. 265, the court said:
“If the .presence and the acts should be proved, there would be little room for the. disavowal of the intent.”
Here the facts constituting the contempt were practically admitted, and the contempt was clearly apparent from the circumstances surrounding the commission of the act.
In the case of Atlantic Powder Co. v. Dittmar Powder Mfg. Co. (C. C.) 9 Fed. 316, the court said:
“Any question of animus can bear only on the extent of -punishment.”
This case was cited and approved by the territorial court-in the case of In re Clancy, 7 N. M. 580, 37 Pac. 1108.
In the matter of the contempt proceedings against Marron and Wood, 22 N. M. 632, 167 Pac. 9, L. R. A. 1918B, 217, this court said:
“In the first place it is to be observed that both respondents disclaim any intent to violate the order of supension. This disclaimer Is entitled to consideration by the court, and under many circumstances might so mitigate the offense as to require no more punishment than a reprimand. They both allege that they took counsel as to their rights under the order, and were advised that their course of conduct was proper. This fact reflects upon the degree of punishment required, but has no effect in relieving respondents of the contempt itself.”
See, also, ease note to the case of Carson v. Ennis, L. R. A. 1917E, 650.
We think these authorities sufficiently show that, where a contempt is clearly apparent from the circumstances surrounding- the commission of the act, the question of disclaimer affects only the punishment, and not the guilt or innocence of the party. It is a matter to be decided by the court after hearing all the evidence, and when it has once been determined by the trial court, who has the advantage of having the witness before him, of hearing his testimony by word of mouth, this court will not disturb the findings of the trial court in that regard.
Lastly, it is argued by appellant that the court erred in refusing to admit evidence proving or tending to prove that the subject of the testimony of Victorio Ballejos, and the fact that it was upon its face incorrect and even perjured testimony, was a matter of general talk, conversation, and discussion at Estancia at the time of the transactions upon which the alleged constructive contempt is based. We fail to appreciate the argument advanced by appellant to sustain the admissibility of this evidence, or to understand how such evidence would tend to excuse or exculpate the interference by appellant with the witness, or his attempt to persuade him to change his testimony. Much that has been heretofore stated in this opinion is' equally applicable to this point, and. need not be here repeated. It is sufficient to say that the court properly rejected the proffered evidence.
Finding no error in the record, the judgment will be affirmed; and it is so ordered.
Parker, C. J., and Raynolds, J., concur. | [
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OPINION OP THE COURT
PARKER, C. J.
The appellant, George Hawkins, was found guilty of assault with a deadly weapon with intent to kill, in the district court for Union county, and from the sentence imposed upon him has perfected this appeal.
Objections are made by appellant’s counsel to the alleged remarks of counsel for the state in his argument to the jury. The Assistant Attorney General contends that the proposition cannot be considered on this appeal because the remarks, if made, were not incorporated in the record by way of bill of exceptions but appear in the transcript as part of the motion for a new trial. He is right in that contention. In State v. Balles, 24 N. M. 16, 172 Pac. 196, we said:
“Alleged remarks of the trial court * * * will not be considered when the same have not been authenticated by-having been made a part of the record by bill of exceptions.”
The doctrine here announced is analogous to that which applies in this case, being founded upon the same premise. The argument of counsel to which objection is made, not having been properly incorporated in the record on appeal, we will not consider the same.
S. B. Oliver, a witness for appellant, testified that the reputation of the appellant, for truth and veracity and as a law-abiding citizen, in the community in which he lived, was good, adding, “I have never heard any one speak to the contrary.” The record of the cross-examination of the witness on the subject is as follows:
“Q. Did you ever hear about Mr. Broom losing a cow that was found under the haystack? Mr. Toombs: We object to that * * * as incompetent, irrelevant, and immaterial, and has no bearing on this case whatsoever. The Court: He may answer. Mr. Toombs: Exception. Q. Did you ever hear about that? A. Yes. Q. The neighbors talked about that a good deal, didn’t they? A. No, sir; I never heard but one speak of it. Q. Who did he say was responsible for putting the cow under, the haystack? Mr. Toombs: We object to that as leading, incompetent, irrelevant, and immaterial, and has no bearing on the issues of this case. The court: He may answer. Mr. Toombs: And not proper cross-examination. Exception. A. Well, he said Mr. Hawkins, the man that was telling me, from what he had heard. Q. Then you have heard to the contrary about the good reputation of Mr. Hawkins? A. Well, in that one particular, I reckon I have.”
Gouusel for the appellant argue that the evidence was inadmissable because it tended to show that the accused had committed a crime distinct from that for which he was being tried.
There are thr.ee good answers to the objection of . the appellant to the evidence. The objection was not sufficiently specific to raise the proposition argued here. In the second place, the witness said that he had never heard anything to the contrary of appellant’s good reputation, and an examination of the witness as to the truth and accuracy of that statement was proper. But we place our decision of the proposition upon the ground that, where a witness has testified as to the general reputation of the accused, it is competent to inquire of him, on cross-examination, as to whether he has heard reports of particular instances which are inconsistent with the reputation to which he has testified and the character which he has attributed to him. The subject is fully discussed in 2 Wigmore on Evid. § 988. The author says:
“The settled rule against impeachment by extrinsic testimony of particular acts of misconduct * * * is to be distinguished in its application from a kind of questioning which rests upon the principle that the witness’ grounds of knowledge * * * may be inquired into. When witness A is called to support the character of B. (either as a witness or as the accused), by testifying to his good reputation, that reputation must signify the general and unqualified consensus of opinion in the community. * * * Such a witness virtually asserts either (a) that he has never heard any ill spoken of him or (b) that the sum of the expressed opinion of him is favorable. Now if it appears that the sustaining witness knows of bad rumors against the other, then, in the first instance, his assertion, is entirely discredited, while in the second instance, his assertion is deficient in good grounds, according to the greater or less prevalence of the rumors. On this principle, then, it is proper to probe the asserted reputation by learning whether such rumors have come to the witness’ knowledge; for if they have, it is apparent that the alleged reputation is more or less a fabrication of his own mind. It is to be noted that the inquiry is always directed to the witness hearing of the disparaging rumor as negativing the reputation. There must be no question as to the fact of the misconduct, or the rule against particular facts would be violated, and it is this distinction that the courts are always obliged to enforce, * * *”
Tbe author then quotes from the cases of R. v. Wood, 5 Jur. 225, and Moulton v. State, 88 Ala. 119, 6 South. 759, 6 L. R. A. 301. In the latter case it was said:
“Opinions, therefore, and rumors, and reports, concerning the conduct of particular acts of the party under inquiry, are the source from which, in most instances, the witness derives whatever knowledge he may have on the subject of general reputation; and, as a test of his information, accuracy, and credibility, but not for the purpose of proving particular acts or facts, he may always be asked on cross-examination as to the opinions he has heard expressed by the members of the community, and even by himself as one of them, touching the character of the defendant or deceased, : as the case may be, and whether he has not heard one or more persons of the neighborhood impute particular acts or the commission of particular crimes to the party under investigation, or reports or rumors to that effect.”
An abundance of cases support tbe text, some of them being: Newell v. State, 66 Tex. Cr. R. 177, 145 S. W. 939; State v. Wilson, 158 N. C. 599, 73 S. E. 812; Baldwin v. State, 138 Ga. 349, 75 S. E. 324; State v. Davidson, 172 Mo. App. 356, 157 S. W. 890; McCreary v. Common wealth, 158 Ky. 612, 165 S. W. 981; Jung Quey v. U. S. 222 Fed. 766, 138 C. C. A. 314; Duhig v. State, 78 Tex. Cr. R. 125, 180 S. W. 252; Stout v. State, 15 Ala. App. 206, 72 South. 762; Smith v. State, 112 Miss. 802, 73 South. 793; Norris v. State (Ala. App.) 75 South. 718; State v. Sella, 41 Nev. 113, 168 Pac. 278; Patterson v. State (Tex. Cr. App.) 202 S. W. 88; Vaughan v. State, 78 South, 378.
In the case of State v. Killion, 95 Kan. 371, 148 Pac. 643, the court said:
“Some complaint is made that witnesses who had testified as to the general reputation of the defendant, and that it was good, were allowed to toe cross-examined as to whether or not they had heard that defendant had committed or been accused of particular acts or misconduct and of being in fights at certain times. Where witnesses have testified to the good character of the defendant, it is permissible to inquire of them whether they have not heard reports of particular instances which are inconsistent with the good reputation to which they have testified, and in that way seek to weaken or qualify the testimony which they have given. [Citing authorities.]”
For tbe reasons stated, the judgment of the trial court will be affirmed, and it is so ordered.
Roberts and Raynolds, J.J., concur. | [
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OPINION OP TPIE COURT.
ROBERTS, J.
Appellant was indicted, tried, and convicted in the' District Court of Bernalillo County upon the charge of larceny of one head of neat cattle of the property of Prajedes Jaramillo.
Two propositions are relied upon for a reversal: First, that the evidence was insufficient to warrant a verdict of guilty, in that the corpus delicti was not established, nor was the ownership of the animal proved beyond a reasonable doubt. There is no merit, however, in either contention. The proof, while circumstantial, was clearly sufficient, if believed by the jury, to establish the guilt of the appellant beyond a reasonable doubt. Where there is substantial evidence supporting the verdict, the Supreme Court will not undertake to weigh the evidence. State v. Lucero, 17 N. M. 484, 131 Pac. 491.
It is next urged that there was no proof of the value of the animal. This was not required. In State v. Lucero, supra, we said:
“Where, under a larceny statute, value of the thing' or article stolen is not made material, it need not be alleged, and, if averred, it need not be proved.”
Finding no error in the record, the judgment will be affirmed; and it is so ordered. '
Parker, C. J., concurs..
Eaynolds, J., having tried the case in the court below, did not participate in this opinion. | [
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OPINION
MINZNER, Chief Judge.
Defendant appeals from a judgment entered after a jury trial convicting him of one count of trafficking in cocaine, a second-degree felony, contrary to NMSA 1978, Sections 30-31-20(A)(2) and (B)(1) (Repl. Pamp.1989), and one count of conspiracy to traffic cocaine, a third-degree felony, contrary to NMSA 1978, Sections 30-28-2 (Repl. Pamp.1984) and 30-31-20. On appeal, Defendant raises four issues: (1) the jury was not instructed properly on his entrapment defense; (2) he was entitled to a directed verdict on the trafficking count because he established entrapment as a matter of law; (3) there was insufficient evidence to support the conspiracy-to-traffic count; and (4) he was denied a fair trial by prosecutorial misconduct during closing argument. We affirm.
FACTS
At trial Kel Smith testified that he had five felony convictions for check forgery and had been in prison four times. He became a police informant and was placed with undercover narcotics agent Carl Work in Alamogordo. By putting out the word that he had buyers, Smith found people wanting to sell drugs. Smith used that information to arrange for Work’s drug buys and was paid $400 for each transaction.
Smith and Defendant have been close friends since growing up together in Las Cruces. They are both in their forties. When Smith moved to Alamogordo the two men visited there and in Las Cruces, staying at each other’s houses. According to Smith, he had put out the word that he had a buyer with money, and Defendant approached him in order to make some of the money. According to Defendant, however, Smith first approached him about the deal, telling him that Smith was going to sell some cocaine, but the buyer did not want Smith to handle the money because of prior drug problems. Defendant testified that he twice agreed, when asked, to do Smith a favor by participating in a drug deal, because they had been friends for a long time.
Smith set up the first buy and drove Defendant to meet Work, who then gave Defendant $950 for an ounce of cocaine. Next, either Defendant or Smith acquired the cocaine, and the two of them went back to give it to Work. Smith and Defendant agree that one gave the other some of the cocaine for his participation in this and the other deals, but each claims he was the recipient and the other was the person who acquired the cocaine. Both also agree that Defendant had never sold cocaine prior to that day.
Smith said he twice accompanied Defendant in dealing with Work, but Work and Defendant agreed that there were three deals. The second deal was basically a repeat of the first. Defendant and Smith had different versions of the third deal.
Work testified that on August 8, 1991, he discussed purchasing cocaine with Jerry Holsome, a friend of theirs whom Smith had introduced to Work. Work gave Holsome money to purchase cocaine. Work became extremely concerned when Holsome did not return with the cocaine that same day, so he told Smith that if Smith could not get Holsome to deliver the cocaine, Smith was going to have to take Work to find Holsome. Work testified that on the following day, Defendant delivered to him the cocaine he had asked Holsome to purchase. Work and Defendant discussed the fact the delivery was “light,” and Defendant said that he “would see what he could do” to remedy the problem.
Smith testified he was at Holsome’s house when Holsome went into another room and called Defendant, asking him to make a drug delivery. Defendant arrived shortly thereafter. On cross-examination Smith admitted that he neither heard nor saw Holsome make the call. Smith saw Holsome give Defendant a package of cocaine and heard Holsome ask Defendant to deliver it to Work. Smith drove Defendant to deliver the cocaine.
Defendant claims that he showed up at Holsome’s house simply because he decided to stop by to visit his friend. Defendant’s version has Smith giving Defendant a package, asking him to deliver it to Work, and Smith driving him to make the delivery.
Defendant was subsequently charged by grand jury indictment with three counts of trafficking cocaine and one count of conspiracy to traffic cocaine. He was acquitted of two counts of trafficking on the basis of the first two buys. We discuss below each of the issues Defendant raises, beginning with the jury instructions.
ENTRAPMENT JURY INSTRUCTIONS
New Mexico recognizes two entrapment defenses: one focuses on improper inducements used by the police (objective); the other focuses on the defendant’s lack of predisposition to commit the crime charged (subjective). Baca v. State, 106 N.M. 338, 341, 742 P.2d 1043, 1046 (1987). Defendant proposed jury instructions based on Baca, which the trial court rejected. The instruction given stated:
Evidence has been presented that the defendant was induced to commit the crime by law enforcement officials or their agents using unfair methods of persuasion that created a substantial risk that the crime would be committed by a reasonable person in defendant’s circumstances who was not otherwise ready and willing to commit the crime. For you to find the defendant guilty, the state must prove to your satisfaction beyond a reasonable doubt that the defendant was not induced to commit the crime by such methods.
This instruction is the one suggested in State v. Sheetz, 113 N.M. 324, 329, 825 P.2d 614, 619 (Ct.App.1991).
Defendant argues that the instruction given misstated New Mexico law by injecting a predisposition factor into the law of objective entrapment. The instruction is incorrect, according to Defendant, because it contains language stating that the unfair methods of persuasion must create “ ‘a substantial risk that the crime would be committed by a reasonable person in defendant’s circumstances who was not otherwise ready and willing to commit the crime.’ ” We disagree for two reasons.
First, as the State has argued, the instruction provides guidance for the jury by articulating an appropriate “ ‘reasonable person’ ” standard. Most jurors are not likely to have been in similar circumstances and thus might not naturally imagine that a reasonable person would be in such circumstances. Thus, the jury should be reminded to consider the effect of police activity on a reasonable, law-abiding person. People v. Barraza, 23 Cal.3d 675, 153 Cal.Rptr. 459, 467, 591 P.2d 947, 955 (1979) (en banc).
Second, the objective test, according to Justice Frankfurter, “shifts attention from the record and predisposition of the particular defendant to the conduct of the police and the likelihood, objectively considered, that it would entrap only those ready and willing to commit crime.” Sherman v. United States, 356 U.S. 369, 384, 78 S.Ct. 819, 826, 2 L.Ed.2d 848 (1958). Simply stopping the instruction after “reasonable person in defendant’s circumstances” would not be satisfactory because such an instruction would bar police conduct that would induce only those who intended to commit the crime and were simply awaiting an opportunity. The language, “who was not otherwise ready and willing to commit the crime,” does not shift the focus to the defendant, but rather provides the jury the remainder of the necessary framework within which to assess the police action.
The language of the Sheetz instruction finds support in commentary explaining the Model Penal Code’s adoption of the objective standard. Model Penal Code § 2.13(l)(b) (1985). In explaining the objective theory, the Code states:
For most methods of inducement or persuasion, the crucial inquiry under Subsection (l)(b) is whether they create a substantial risk that offenses will be committed by persons other than those who are ready to commit them. The main criterion for evaluating the propriety of police methods is, therefore, the likely effect of such methods on law-abiding persons, and the propensities of the particular defendant are irrelevant.
Id. commentary 3 at 411. Furthermore, a footnote to this commentary states that even though the objective defense requires evaluation of police conduct rather than of a defendant’s predisposition, such an evaluation must consider surrounding circumstances, and this sometimes includes defendant’s prior activities. Id., 356 U.S. at 411-12 n. 17, 78 S.Ct. at 879-80 n. 17.
The language from Sheetz instructs the jury to look at the activities of the police; it does not require the jury to make a determination as to this specific defendant’s predisposition, or lack thereof, to traffic cocaine. Rather, the language provides the jury with handles by which to grasp the problem presented when a defendant raises objective entrapment. The language should assist the jury in reaching an appropriate resolution of the factual issues with which they are charged when asked to determine whether “the police exceeded the standards of proper investigation.” Baca, 106 N.M. at 341, 742 P.2d at 1046. That is all the instruction can be expected to accomplish. See People v. Grant, 165 Cal.App.3d 496, 211 Cal.Rptr. 343, 345-46 (Ct.App.1985). See generally The Honorable Leslie C. Smith, “Entrapment,” Vol. 32, No. 50, SBB 6, 7 (Dec. 16, 1993), U.J.I. 14-5160 (discussing the proposed new instruction on objective entrapment). We address the second and third issues next and together, because they both involve sufficiency of the evidence.
SUFFICIENCY OF THE EVIDENCE
Defendant’s second issue is that he was entrapped as a matter of law and that the trial court erred in denying his motion for a directed verdict on all trafficking counts. In resolving a motion for directed verdict, the trial court had to determine whether to believe Defendant regarding the incidents of cocaine trafficking. See State v. Savage, 115 N.M. 250, 254, 849 P.2d 1073, 1077 (Ct.App.1992), cert. quashed, 115 N.M. 409, 852 P.2d 682 (1993). In this case there is conflicting testimony going to the entrapment issue. For example, Defendant and Smith each testified that it was the other who initiated Defendant’s involvement in the trafficking. There was also a question regarding whether there was a government agent on each side of the transactions (did Smith or Defendant acquire the cocaine to sell to Work). Thus, there were questions of fact, including Defendant’s credibility, which required that the case go to the jury. Sheetz, 113 N.M. at 326, 825 P.2d at 616.
Defendant also disputes the sufficiency of the evidence offered to prove conspiracy to traffic cocaine. The State has the burden of proving beyond a reasonable doubt each element of the crime. State v. Duran, 107 N.M. 603, 605, 762 P.2d 890, 892 (1988). Defendant contends that the State failed to meet that burden as to the conspiracy charge. We must determine whether the evidence, either direct or circumstantial, is sufficient to show an agreement between Defendant and Holsome to traffic cocaine. See State v. Ross, 86 N.M. 212, 214, 521 P.2d 1161, 1163 (Ct.App.1974). This agreement can be in the form of an implied understanding and can be inferred from facts and circumstances showing that the parties united to accomplish a crime. Id. When determining whether there is sufficient evidence to support an essential element of a crime or a criminal conviction, this Court must view the evidence in the light most favorable to the State, resolving all conflicts and indulging all permissible inferences in favor of the verdict. State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988).
The State presented evidence through Smith and Work regarding Defendant’s interactions with Holsome. The evidence supported an inference that Holsome called Defendant and, upon his arrival at Holsome’s, that Defendant agreed to deliver the cocaine to Work. Defendant’s statement that he would see what he could do to remedy the “light” delivery was additional evidence upon which the jury was entitled to rely in finding the requisite agreement. Defendant presented conflicting testimony, but the evidence presented by the State was sufficient to support the jury’s conviction of Defendant on charges of conspiracy to traffic cocaine. See §§ 30-28-2(A) & 30-31-20(A)(2).
CLOSING ARGUMENT
Finally, Defendant asserts that his rights to due process and to an impartial jury were violated by the prosecutor’s improper closing remarks. Defendant moved for a new trial, claiming that the jury was not properly instructed and that the prosecutor’s remarks, either individually or cumulatively, resulted in fundamental constitutional error. The trial court denied Defendant’s motion.
Prosecutors are allowed reasonable latitude in closing argument. State v. Jett, 111 N.M. 309, 314, 805 P.2d 78, 83 (1991). Such latitude, however, does not negate the requirement that the prosecutor’s closing remarks be based on evidence or be in response to defendant’s argument. State v. Taylor, 104 N.M. 88, 94, 717 P.2d 64, 70 (Ct.App.), cert. denied, 103 N.M. 798, 715 P.2d 71 (1986). Nor can the prosecutor misstate the law to the jury. State v. Gonzales, 105 N.M. 238, 242, 731 P.2d 381, 385 (Ct.App.1986), cert. quashed, 105 N.M. 211, 730 P.2d 1193 (1987). If the prosecutor’s closing comments were inappropriate, Defendant must show that the comments were prejudicial and prevented him from receiving a fair trial in order to prevail on appeal. Taylor, 104 N.M. at 95, 717 P.2d at 71.
Defendant lists specific comments that he argues constitute reversible error. He contends that the first two comments were not supported by the evidence. He also challenges two comments as misstating the burden of proof and another as an improper reference to the prosecutor’s authority. First we consider the individual comments, then we consider the remarks as a whole.
The prosecutor noted in closing argument that Defendant cares for his invalid mother “when he’s not at The Corner partying with his friends and when he’s not doing cocaine with Jerry Holsome, and when he’s not engaging in a whole variety of other illegal activities.” Defense counsel objected to that statement, and the trial court sustained the objection. The State argues that there was evidence presented that Defendant partied at The Corner and used cocaine with Jerry Holsome, and that the comment regarding other illegal activities was in reference to the trafficking and conspiracy charges at issue in this trial. We agree.
The prosecutor made a second reference, to “known drug traffickers.” The whole exchange before the jury was as follows:
Prosecutor: You cannot allow known drug traffickers who make hand-to-hand sales to agents (unintelligible) ...
Defense: Objection, your honor.
Judge: Sustained.
Defense: My client’s not a known drug trafficker.
Prosecutor: You cannot find an individual in this particular case, who has admittedly engaged in drug trafficking, to be found not guilty. That’s what the laws are all about.
The trial court offered to admonish the jury to disregard the prosecutor’s comments, but Defendant declined the offer. The court then invited Defendant to cure the matters during closing argument to the jury.
The reference to “known drug traffickers” apparently depended on Defendant’s acknowledgment that he participated in the first two buys. The trial court properly sustained the objection, and defense counsel properly argued in closing that there was no evidence presented that Defendant had ever trafficked drugs in the past, and that in the present ease he contended he had been entrapped to serve as a conduit in a circular drug transaction. However, we do not believe Defendant has shown prejudice sufficient to require reversal. That is because Defendant must show that the comments prevented him from receiving a fair trial. The trial court’s decision to sustain the objection and its subsequent offer to admonish the jury would substantially reduce the possibility of prejudice to Defendant. Also, the prosecutor’s follow-up statement indicated to the jury that he meant “admitted drug trafficker” when he said “known drug trafficker,” thus further greatly diminishing the possibility that the jury would infer that the prosecutor knew about trafficking by Defendant that was not in evidence at trial. On the state of this record, the trial court was within its discretion in determining that the prosecutor had worded his remarks poorly and that sustaining the objection and offering to admonish the jury were adequate remedies.
Appellate review provides a very limited opportunity for relief from poorly worded remarks, and the trial court’s power to grant a new trial depends on the trial court being persuaded that due process was denied. In the end, the most important protection the law affords defendants against prosecutorial misconduct is the prosecutor’s continued awareness and conscientious execution of his or her responsibility as a representative of the State.
Two comments made during closing argument concerned the burden of proof. Those statements are contained in the following exchange:
Prosecution: Now the defendant has an obvious reason for coming up with this story, a very obvious reason. He’s going to be found guilty if his story isn’t believable or if he can’t come up with something to rebut the obvious testimony.
Defense: Objection, your honor, I believe that he’s misstating the burden.
Prosecution: The burden is on the state. There’s no doubt about that. The burden is on the state to show the jury, a unanimous jury, beyond a reasonable doubt, that the defendant committed the crime, and that he was not induced by a devious and conniving and cunning Kel Smith, and that he wasn’t otherwise predisposed to commit the crime. Now what that means is, if you believe that, what it all boils down to when you really get down to it is if you believe the defendant carte blanche, if you believe every single word he says then he’s entitled to the entrapment defense and you’re entitled to find him not guilty.
Defense: Objection, your honor. I believe he’s still misstating it. You don’t have to believe everything that the defendant says.
The prosecutor’s statement to the jury that they have to believe every single word Defendant said in order to find him not guilty was error because it is a misstatement of the law. The trial court properly sustained defense counsel’s objection and immediately gave the following instruction:
Ladies and gentlemen, recall my instructions, irrespective of what counsel tells you during closing arguments, it’s not evidence, it’s not necessarily an accurate reflection of what the law is. The law of this case is contained in the instructions that I just read to you and you’ll receive these instructions when you go into the jury room to deliberate, and any conflict between what either lawyer tells you in closing argument and what is in the written instructions that I gave you, must be resolved in favor of the written instructions.
The curative instruction was sufficient to offset any prejudicial effect due to the prosecutor’s erroneous statement.
While it is possible that the jury could have been confused regarding the burden of proof as a result of these remarks, we believe any possibility of error was cured. The prosecutor clearly reminded the jury that the State has the burden of proving the crime beyond a reasonable doubt. Also, the trial court gave the jury written instructions stating the correct burden of proof surrounding the entrapment issue. There is a presumption that the jury follows the instructions they are given. State v. Case, 100 N.M. 714, 719, 676 P.2d 241, 246 (1984).
Finally, Defendant points to the prosecutor’s statement, “I’m not trying to distort things—I’m really not—I have no interest in that” as placing the prosecutor’s credibility at issue. Once again, defense counsel objected and the objection was sustained. Defendant presents this statement as exploiting the influence of the prosecutor’s office and undermining the prosecutor’s objective detachment. We disagree with Defendant’s interpretation of this comment. We also disagree with Defendant’s position that this is analogous to the situation where a prosecutor expresses his personal view concerning the defendant’s guilt. Rather, it appears that the prosecutor was attempting to correct any mistaken impression he may have given in his previous statement.
Defendant suggests that prejudice can be shown by his acquittal of the first two counts of trafficking, but not the third. However, the first and second counts had identical participants, and the deal was handled in the same fashion each time. In the third count there was another person involved, and the scenario of the transaction was significantly different. Thus, we conclude Defendant has failed to prove that the comments, when placed in the context of the trial and viewed with the curative measures taken, were so prejudicial as to deprive him of his right to a fair trial.
The trial court is given, and must exercise, considerable discretion in evaluating the propriety of argument and in curing any alleged defects. Jett, 111 N.M. at 314, 805 P.2d at 83. The trial court denied Defendant’s motion for new trial, stating that the comments had not deprived Defendant of a fair trial. We believe that the court acted within the proper bounds of its discretion, and we will not reverse a decision denying a new trial on such a record.
CONCLUSION
We are satisfied that the above assertions of error raised in Defendant’s brief did not deprive Defendant of any due process rights. Therefore, for the reasons stated above, we affirm the trial court.
IT IS SO ORDERED.
BIVINS and HARTZ, JJ., concur. | [
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OPINION
HARTZ, Judge.
The decree dissolving the marriage of Husband and Wife ordered Husband to make monthly payments of $600 to Wife beginning when he reached age 55. These periodic payments represented her community share of his retirement benefits. As we construe the decree, the district court did not retain jurisdiction to modify the monthly-payment award. More than a decade later Husband sought a modification of the decree as to future payments on the ground that “it is no longer equitable that the judgment should have prospective application.” SCRA 1986, 1-060(B)(5) (Repl.1992). We hold that when, as here, the sole ground urged for the modification is that the original award was based on an erroneous projection of the value of the retirement benefits, such a modification is improper unless the reason for the error in the projection is a circumstance that the party seeking relief had no opportunity to foresee or control. We therefore reverse the district court order modifying the original decree.
I. BACKGROUND
We decide this appeal on our summary calendar. We accept as true the uncontested representations of fact in the docketing statements filed by the parties. See State v. Calanche, 91 N.M. 390, 392, 574 P.2d 1018, 1020 (Ct.App.1978). Husband and Wife were married in Michigan in 1956. In 1967 they moved to Albuquerque so that Husband could accept a position with Sandia National Laboratories (Sandia). Husband filed for divorce in 1980. After a one-day trial in which the only witnesses were Husband, Wife, and an economist who provided expert testimony on the value of Husband’s Sandia retirement plan, the district court entered a final decree on April 28, 1981. The decree valued and divided the Sandia retirement benefits, the couple’s residence, and other community as sets. It also determined child support and awarded alimony to Wife. Neither party filed any post-trial motions or appealed the decree. The references in the decree to the Sandia retirement plan are as follows:
6. [Husband] shall take as his sole and separate property the following:
G. His accrued retirement benefits at Sandia Laboratories, subject to [Wife’s] community property interest in said benefits as set forth in Paragraphs 12 and 13 below.
12. [Wife] shall take as her sole and separate property her one-half interest in [Husband’s] accrued retirement benefits in the following manner: Upon attainment of age fifty-five (55) by [Husband], [Husband] shall begin paying [Wife] $600.00 per month, the first such payment due and owing to [Wife] August 1, 1992, and $600.00 the first of each and every month thereafter until the death of [Husband]. These payments shall be paid to [Wife] whether or not [Husband] retires at age fifty-five (55), and whether or not [Husband] continues employment with Sandia Laboratories.
13. The Court reserves jurisdiction to enforce payment by [Husband] to [Wife] of [Wife’s] present one-half community property interest in [Husband’s] accrued retirement benefits.
18. Additionally, [Husband] shall maintain life insurance coverage on his life, in at least the amount of $45,000.00, until the death of [Wife], naming [Wife] as beneficiary, to ensure receipt by [Wife] of her present one-half community interest in [Husband’s] retirement benefits.
After the divorce Husband continued to work at Sandia for another four years and four months, when he left to take a job in California. Husband then filed suit to terminate the alimony awarded to Wife in the original decree. After negotiations between the parties, a stipulated order entered in April 1987 terminated alimony. The retirement plan was not addressed in the pleadings in that suit.
.This appeal arises from Husband’s “Petition To Equitably Divide Retirement And Relief From Judgment Or Order Pursuant to Rule 1-060.B.(5),” .filed on July 10, 1992. Husband alleged that in the original action the parties had attempted to project what Husband’s monthly retirement benefit would be upon early retirement at age 55 and that insufficient information led to an inaccurate projection that Husband’s benefit would be $1200 per month. Husband further alleged that he had been informed that he was not eligible for early retirement benefits at age 55 and that when he could begin drawing his pension at age 65 (in August 2002) his monthly allotment would be $806.49. He concluded that “it would no longer be equitable that the Final Decree of Divorce have prospective application based on the facts and circumstances surrounding the value and commencement date of [Husband’s] retirement and pursuant to Rule 1-060B.(5), the Court should enter its Order relieving [Husband] of his obligation to pay [Wife] the sum of $600 per month as her % of his Sandia Labs retirement.” Husband sought to delay the monthly payments until August 2002 and to reduce them to somewhat less than half of $806.49. In the alternative, he sought a Qualified Domestic Relations Order awarding Wife her community property interest in his retirement fund. See Ruggles v. Ruggles, 116 N.M. 52, 55 n. 3, 860 P.2d 182, 185 n. 3 (1993) (describing Qualified Domestic Relations Orders).
Among the district court’s findings were the following:
12, When Husband resigned from Sandia Laboratories in August, 1985, he did so voluntarily and with knowledge that his resignation 19 months before his 20th employment anniversary would result in the elimination of the option to receive retirement benefits at age 55. Husband’s testi mony suggested an attitude of disdain toward the benefits. He testified that he responded to a colleague who counseled him about the negative impact of resigning 19 months early:
“I’ve never believed in retirement benefits. They are golden handcuffs ... I’ve never paid much attention to retirement benefits, and I’ve been repulsed by those who did.”
13. Husband did not discuss his plans to change employment or the impact a change would have on the retirement benefits with Wife.
14. In August, 1985, Husband withdrew $11,456.53 from the Sandia Laboratory Retirement plan which was made up of $6,409.57, contributions made before the plan became a non-contributory plan, and $5,046.96 in interest accrued on the contributions. Husband did not discuss this withdrawal with Wife nor did he share the money with her. The money was community property.
15. In 1987, Sandia Laboratories sent Husband a waiver form which addressed survivor benefit options and gave notice that unless Husband made an affirmative decision about survivor benefits, an option would be selected for him by Sandia Laboratories and the pension would be reduced by the cost of survivor benefits. Husband did not discuss this information with Wife, and he did not affirmatively respond to Sandia Laboratories.
16. Husband did not provide Wife with information as to what survivor benefits options were available or what the costs were. It appears Husband selected a survivor benefit option by default, by failing to respond to the notice.
17. The Sandia Laboratory Retirement plan provides that if early retirement (age 55) is elected, the monthly benefit is reduced to 35% of the monthly benefit available at age 65.
18. The parties were married 25 years during which [W]ife worked as a waitress in the early years and later-as primary parent to the parties’ three children. She held a high school diploma and obtained an LPN at TVI in 1973. Husband during the marriage obtained a B.S., M.S. and Ph.D. in engineering. That is, while Husband may hold retirement benefits in low regard, the importance of the benefits to [W]ife is great.
19. Husband’s testimony and other evidence as to the monthly retirement benefits that might have been available had he:
a) worked a full 20 years before resigning,
or
b) worked to age 55 before resigning, or
c) worked to age 65 before retiring
were unreliable
(i) because the projected annual salary increases he used were not in line with his actual annual salary increases either at Sandia Laboratories or at his subsequent places of employment, and
(ii) because of the unknown impact of the $11,456.53 he withdrew in 1985, and the survivor benefit option he made in 1987.
20. It appears that if Husband had continued to be employed at Sandia Laboratory until 2002 when he reached age 65, Wife’s share, which then would have been 23.3%, would have been $600 monthly, or perhaps more. However, because of the 65% discount assessed against the benefits for early retirement it would have been impossible for Wife’s share to be $600 monthly at Husband’s age 55 no matter how meticulously he might have managed the retirement benefit asset with an eye toward maximizing Wife’s interest in it.
The district court entered the following conclusions of law:
B. Husband had a fiduciary duty to manage the retirement benefit asset in a manner that advanced Wife’s best interests.
C.Husband breached that fiduciary duty, and his breach diminished the value of the retirement benefit asset.
D. Husband alone should suffer the diminished value of the retirement benefit asset, and Wife’s options should be restored to her as though Husband has not breached his fiduciary duty.
E. Husband had the burden of proof to show that it would be inequitable that the 1981 final decree should have prospective application. He met that burden of proof, but he failed to show how the consequences of his breach of fiduciary duty could be remedied.
F. It is appropriate to set aside the portion of the 1981 Final Decree that divides the retirement benefits because retirement benefits are a hybrid asset, being partially property and partially future stream of income. To the extent retirement benefits are future income, they are speculative. The trial court in 1981, could only predict the value of this asset because the value depended on length of service, wages and other factors not knowable in 1981.
G. Wife should have the option of selecting from the following remedies:
i) Wife will receive from Husband the maximum amount of retirement benefits that could have been available to her upon Husband’s 55th birthday if Husband had managed the retirement asset properly. The amount may be determined assuming;
—Husband remained employed at Sandia Laboratories until his 55th birthday;
—Husband retired on his 55th birthdate;
—Husband did not withdraw the community contributions and accrued interest unless it was mutually advantageous to do so; and
—Wife selected the survivor benefit package most advantageous to her.
This sum should be paid directly by husband untif his 65th birthdate at which time [W]ife may choose to have the sum paid to her directly by Sandia Laboratories Retirement Plan or to have the sum continue to be paid by [H]usband.
-OR-
ii) Wife will receive $600 monthly of the $806.49 retirement benefit, upon [husband’s 65th birthday. Wife may choose whether to have the sum paid directly by Sandia Laboratories Retirement Plan or to have the sum paid by Husband.
H. A determination shall be made with respect to what Wife’s share of the $11,-456.53 which Husband received in August, 1985, would be at the current time, and whether she should now receive her share or whether an off-set is appropriate against the $600 monthly [W]ife has received since August, 1992, pursuant to this Court’s December, 1992, Order, or if a different solution is appropriate.
I. The Court is specifically not ruling that it was Husband’s fiduciary duty to continue his employment until his 65th birthday to maximize Wife’s share of retirement benefits. The court also is not determining what the maximum extent of an employee-spouse’s duty is with respect to managing post-divorce, jointly-owned retirement benefits. The court only determines that this Husband’s conduct with respect to managing these post-divorce, jointly-owned retirement benefits constituted a breach of his fiduciary duty.
II. DISCUSSION
A. Meaning of the Original Decree
First, we address the nature of the award of periodic payments to Wife in the original decree. Husband contends that the original decree merely awarded Wife her community interest in the retirement benefits and retained jurisdiction in the district court to adjust the monthly payments in accordance with future developments. If Husband is correct in this regard, then the district court would have relatively broad discretion to modify the award in the light of changed circumstances. On the other hand, if the original decree did not continue jurisdiction in the district court to adjust the monthly payments, then modification would be proper only on one of the grounds set forth in SCRA 1-060(B).
In support of his position Husband refers to (1) the language in paragraph 13 of the decree which “reserves jurisdiction to enforce payment by [Husband] to [Wife] of [Wife’s] present one-half community property interest in [Husband’s] accrued retirement benefits,” (2) the language in paragraph 18 that requires Husband to maintain life insurance “to ensure receipt by [Wife] of her present one-half community interest in [Husband’s] retirement benefits,” and (3) the language in paragraph 6G that awards to Husband as separate property his accrued retirement benefits “subject to [Wife’s] community property interest in said benefits as set forth in Paragraphs 12 and 13 below.”
We disagree with Husband’s construction of the decree. There would be little purpose in the decree’s setting a figure of $600 per month if the figure actually to be paid could be determined only at the time that payment was to begin. More importantly, paragraph 12 of the decree states, “These payments shall be paid to [Wife] whether or not [Husband] retires at age fifty-five (55), and whether or not [Husband] continues employment with Sandia Laboratories.” This language clearly evinces a purpose of setting a fixed monthly payment regardless of contingencies affecting the value of Husband’s retirement plan.
The language relied upon by Husband can readily be explained. First, Paragraph 13, rather than supporting Husband’s position, actually supports the contrary construction of the decree. It does not reserve jurisdiction to recompute the amount of the payment but to enforce payment. See Mendoza v. Mendoza, 103 N.M. 327, 333, 706 P.2d 869, 875 (Ct.App.1985) (noting distinction between power of trial court to modify judgment and power to enforce judgment). Second, the appearance in paragraphs 13 and 18 of the language “present one-half community interest in [Husband’s] retirement benefits” can best be understood as a shorthand reference to the award described in paragraph 12 rather than as an indication that the value of the community interest was still to be determined. In paragraph 6G the decree makes this explicit when it refers to Husband’s “community property interest in said benefits as set forth in Paragraphs 12 and 13 below.” There was no need for the decree to repeat the limiting language “as sét forth in paragraph 12” after each subsequent reference to the community interest in the retirement benefits.
Husband submitted a proposed finding that refers to the existence of parol evidence indicating that the original decree was intended to reserve jurisdiction in the district court to modify the amount of the required monthly payments. The district court, however, did not adopt the proposed finding. See Gallegos v. Wilkerson, 79 N.M. 549, 551, 445 P.2d 970, 972 (1968) (failure to make requested finding is held to be finding against party with burden of proof). That rejection of the proposed finding is further evidenced by the district court’s Conclusion E, which demonstrates that the court was granting relief under Rule 1-060(B)(5) rather than on the ground that the original - decree granted the court continuing authority to adjust the amount of the monthly benefit.
In any event, regardless of the district court’s construction of the original decree, we find the decree to be unambiguous in awarding a fixed periodic payment from Husband to Wife. The decree does not contemplate a future recalculation of the parties’ interests in the retirement benefits. Thus, Husband could obtain a modification of the award only pursuant to Rule 1-060(B).
B. Application of Rule 1 — 060(B)(5)
Husband based his petition for modification solely on Rule 1-060(B)(5), which permits relief from a judgment when “it is no longer equitable that the judgment should have prospective application.” We agree with Husband that the district court had jurisdiction to consider his petition. The question is whether the circumstances present here justify a modification of the award in the original decree.
The only justification for modifying the decree that is apparent from the district court’s order is that the value of the periodic payments awarded by the decree exceeds by a substantial amount what Wife’s share of Husband’s retirement benefits would actually have turned out to be, even if Husband had always taken care to protect Wife’s interest in maximizing those benefits. In other words, the modification is justified by the inaccuracy of the prediction in the original decree. We assume that the error did not result from a misconception of facts (such as .the terms of the Sandia retirement plan) that existed at the time of the original decree. If it did, correction of the error would be possible only under SCRA 1-060(B)(1) (relating to mistake or excusable neglect) or SCRA 1-060(B)(2) (relating to newly discovered evidence), both of which grounds must be invoked within one year of the decree. See SCRA 1-060(B); Parker v. Parker, 92 N.M. 710, 594 P.2d 1166 (1979); Parks v. Parks, 91 N.M. 369, 371, 574 P.2d 588, 590 (1978). Thus, relief here could not rest on any such cause of the error. The error must have arisen from post-decree events.
Not long ago we expressed the view that judgments should not be set aside because of post-trial events that are “material solely to undermine the predictions of experts , at trial relating to damages.” Fowler-Propst v. Dattilo, 111 N.M. 573, 577, 807 P.2d 757, 761 (Ct.App.), cert. denied, 111 N.M. 678, 808 P.2d 963 (1991). In Fowler-Propst the plaintiffs had sued for misrepresentation and professional negligence relating to the sale of a house that turned out to have an inadequate water well. The jury returned a verdict for the plaintiffs, finding that the house was worth about $70,000 less than it would have been worth with a proper well. Less than three months after the trial the plaintiffs sold the house for a price greater than what they had paid for it and much greater than the value estimated by their witnesses at trial. The defendant filed a motion pursuant to SCRA 1 — 060(B)(2) requesting that the judgment be set aside on the ground of newly discovered evidence that demonstrated that the plaintiffs had suffered no damage. The district court granted, a new trial. We reversed, explaining:
When witnesses value an item of property, they are in essence predicting what a willing buyer would pay a willing seller. Everyone at trial knows that the testimony consists of estimates. Everyone knows that the estimates may be wrong, even quite wrong. No one expects the trial to be put off until the occurrence of some definitive event that establishes damages with certainty. Nevertheless, all expect the trial to end the controversy.
Id. at 577, 807 P.2d at 761.
Although Fowler-Propst was decided under Rule 1-060(B)(2), relating to newly discovered evidence, rather than under Rule 1-060(B)(5), which permits a modification of a judgment when “it is no longer equitable that the judgment should have prospective application,” the underlying rationale applies here. The judgment in both cases rested on a prediction relating to the value of an item of property. In Fowler-Propst the prediction concerned what a willing buyer would pay a willing seller for a piece of real estate. In this case the prediction related to the value of a retirement plan eleven years in the future. Both predictions were fraught with uncertainty. The prediction in FowlerPropst proved to be very wrong only three months later. The prediction here apparently also was wrong. Yet at the trial leading to the original decree the parties necessarily-realized that the prediction regarding the value of the retirement plan was dependent on assumptions that could turn out to be quite inaccurate. The value of the plan would be affected by a number of uncertainties, including the future inflation rate and Husband’s promotions at his job. The purpose of having an economist testify at the original trial was to assist the court in making an intelligent estimate regarding these uncertain matters. The court could have postponed its evaluation of the retirement plan, waiting perhaps until Husband was 55; but it did not. The decree was intended to end any controversy regarding the amount of the periodic payments, even though the award might turn out to be based on inaccurate estimates.
We have not found any published opinion discussing whether a party in a divorce action can obtain modification of future periodic payments arising from a property settlement on the ground that factual developments render the originally ordered payment schedule no longer equitable. Pertinent authority, however, suggests that such modification should be granted either not at all or only in extraordinary circumstances.
Some authority indicates that modification would never be appropriate. For example, the commentary to Restatement (Second) of Judgments § 73(2) (1980), which is the same in substance as the pertinent language of Rule 1-060(B)(5), could be read to suggest that this provision was not intended to affect a judgment such as the one here. Comment b states: “[I]f the controversy concerned ownership claims to specific property and the judgment determined the parties’ interests in the property, a modification would amount to an improper redetermination of those interests.”
To the same effect, decisions interpreting Federal Rule of Civil Procedure 60(b)(5), which is essentially identical to Rule 1-060(B)(5), hold that the rule should not be applied to set aside a money judgment. Kock v. Government of Virgin Islands, 811 F.2d 240, 244-45 (3d Cir.1987) (Rule 60(b)(5) cannot apply to a final money judgment having conclusive effect); Marshall v. Board of Educ., 575 F.2d 417 (3d Cir.1978) (Rule 60(b)(5) does not apply to money judgment for past wrongs, which is inherently final); Ryan v. United States Lines Co., 303 F.2d 430, 434 (2d Cir.1962) (Rule 60(b)(5) does not cover a judgment for money damages); cf. 11 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2863, at 205 (1973) (Rule 60(b)(5) does not apply to judgments “that offer a present remedy for a past wrong”). Although these authorities involve only a single payment, one could argue that there is no persuasive reason to treat differently a present award for what amounts to a well-defined annuity. Instead of entering the decree here, the district court could have accomplished substantially the same result by ordering Husband to purchase (with a single payment) an annuity for Wife (assuming, of course, that Husband could afford the payment at the time).
On the other hand, the decree orders periodic future payments. It thus seems more natural to characterize it as having “prospective application” so that it is subject to Rule 1—060(B)(5). Yet even if the decree is so characterized, the case law suggests that obtaining relief is reserved for extraordinary circumstances. Because of the reliance interest in judgments having prospective application and the virtues of finality, courts have set a high threshold for the extent of inequity required to justify prospective modification of a judgment. In the leading decision on the subject, Justice Cardozo wrote, “[The defendants] are not suffering hardship so extreme and unexpected as to justify us in saying that they are the victims of oppression. Nothing less than a clear showing of grievous wrong evoked by new and unfore seen conditions should lead us to change what was decreed after years of litigation with the consent of all concerned.” United States v. Swift & Co., 286 U.S. 106, 119, 52 S.Ct. 460, 464, 76 L.Ed. 999 (1932); see Elser v. I.A.M. Nat’l Pension Fund, 579 F.Supp. 1375, 1382 (C.D.Cal.1984) (Court does not increase interest rate on pension because of failure to show that party “is suffering hardship so extreme and unexpected that it constitutes oppression.”).
Central to the inequity inquiry is the extent to which developments since the original judgment have been “unexpected,” see Elser, or “unforeseen,” see Swift & Co. We agree with the Ohio Supreme Court that Rule 1-060(B)(5) “was designed to provide relief to those who have been prospectively subjected to circumstances which they had no opportunity to foresee or control.” Knapp v. Knapp, 24 Ohio St.3d 141, 493 N.E.2d 1353, 1357 (1986); see Bigelow v. Twentieth Century-Fox Film Corp., 183 F.2d 60, 62 (7th Cir.1950) (must show “changed conditions not readily foreseeable at the time the decree was entered”); In re Marriage of Jones, 180 Ind.App. 496, 389 N.E.2d 338, 341 (1979) (must show change was not “reasonably foreseeable”).
We conclude from these authorities that when a judgment is founded on a prediction that takes into account various contingencies, equity does not require modification of the judgment simply because events did not evolve in accordance with the prediction. A change in condition sufficient to justify modification of the decree must derive from a circumstance that could not have been foreseen at the time of the decree. There is no inequity in sticking with the valuation of the property in the original decree, as opposed to continuing to adjust that decree as new information suggests a modified valuation. The parties are entitled to repose rather than a never-ending series of adjustments. “[T]hat the case might be decided differently today is not a sufficient ground for vacating a judgment under Rule130(b).” Morris v. Travisono, 499 F.Supp. 149, 157 (D.R.I.1980).
We point out that this limitation on the prospective modification of a judgment does not affect cases in which the court has retained jurisdiction over a judgment ordering periodic payments so that the amount of the payments can be adjusted as circumstances change. See Ruggles, 116 N.M. at 64, 860 P.2d at 197 (in certain limited circumstances court can reserve jurisdiction in distributing ex-spouse’s interest in retirement benefits); Spingola v. Spingola, 91 N.M. 737, 741, 580 P.2d 958, 962 (1978) (child support); Rabie v. Ogaki 116 N.M. 143, 860 P.2d 785 (Ct.App.1993) (spousal support). The issue here is solely the application of Rule 1-060(B)(5) when neither the judgment nor a controlling statute preserves such jurisdiction in the district court. We also acknowledge that in circumstances different from those here, Rule 1-060(B)(5) may justify modification of a property award. See Rudd v. Rudd, 105 Idaho 112, 117-19, 666 P.2d 639, 644-16 (1983) (property to be sold no longer existed).
Finally, we note Husband’s contention that the recent Supreme Court decision in Ruggles supports his view. We disagree. Ruggles discussed at length the principles that should govern the division of community retirement benefits. The Court stated that the preferred procedure is to divide vested benefits at the time of the divorce rather than ordering that the non-employee spouse’s share of retirement benefits be paid as it comes in. In our view, Ruggles supports the result in this case by emphasizing the virtues of bringing marital litigation to closure.
III. CONCLUSION
Because of the absence of any evidence that the error in calculating Husband’s retirement benefits was the result of a post-decree event or events that could not have been anticipated at the time of the original decree, the district court erred in modifying the decree. We reverse the order of the district court and remand with instructions to reinstate the provisions of the original decree regarding monthly $600 payments from Husband to Wife.
IT IS SO ORDERED.
BIVINS and FLORES, JJ., concur.
. Of course, even when the court does not reserve jurisdiction to modify a judgment, the judgment can be set aside or modified when a ground set forth under Rule 60(B) applies. See Mendoza, 103 N.M. at 331-32, 706 P.2d at 873-74.
. The purpose of the reference to paragraph 13 is unclear since the benefits are set forth only in paragraph 12. The reference may be an artifact from an earlier draft of the decree.
. We note that in this case Wife may have substantially relied on the assumption that she would be receiving $600 a month as required by the original decree. In fact, she contended in district court that she consented in 1987 to termination of alimony on the assumption that she would be receiving the $600 monthly payments. | [
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OPINION
MINZNER, Chief Judge.
The State appeals an order dismissing an indictment with prejudice. The dismissal was based on a violation of SCRA 1986, 5-604 (Repl.1992) (the six-month rule). We reverse.
The facts are not disputed. Defendant was originally indicted for possession and conspiracy to commit possession of a con trolled substance, tampering with evidence, and possession of drug paraphernalia on April 24, 1991, in Bernalillo County Cause No. CR-91-0690.
The New Mexico legislature has provided a procedure for suspending a criminal proceeding during a defendant’s participation in a preprosecution diversion program (PDP). See NMSA 1978, § 31-16A-6(B) (Repl. Pamp.1984). Pursuant to statute, after Defendant waived her rights to a speedy trial and a trial under the six-month rule, she was diverted into a PDP. The statute provides that in these circumstances, “criminal proceedings against the defendant shall be suspended.” Id. On October 8,1991, the State dismissed the indictment by filing a nolle prosequi after Defendant had been accepted into a PDP.
NMSA 1978, Section 31-16A-7(B) (Repl. Pamp.1984) provides: “[i]f a defendant does not comply with the terms, conditions and requirements of a preprosecution diversion program, his participation in the program shall be terminated, and the district attorney may proceed with the suspended criminal prosecution of the defendant.” On February 3,1992, Defendant’s participation in the PDP was terminated because she had violated the terms of the PDP contract. The Director of the PDP notified Defendant of the termination by certified letter on that date. However, the State failed to file a notice of the termination with the district court.
A grand jury reindicted Defendant on March 5, 1992, in Bernalillo County Cause No. CR-92-0419, on the same charges for which she had previously been indicted in Bernalillo County Cause No. CR-91-0690. On March 20, 1992, Defendant waived her 'arraignment on the charges in the second indictment (Cause No. CR-92-0419), and the district court released her on her own recognizance on March 23,1992. After the district court set a September trial date, Defendant moved to dismiss the second indictment on the grounds that she had not been tried within six months of her termination from the PDP. On November 30, 1992, the court granted Defendant’s motion. A written order dismissing the indictment with prejudice was filed on March 11, 1993. The written order indicates that the district court adopted Defendant’s analysis of the six-month rule and concluded that the rule required that trial commence on or before August 4, 1992, or six months after Defendant had been terminated from the PDP.
The Supreme Court six-month rule, SCRA 5-604(B), at Subsections 1 and 6, provides:
Time limits for commencement of trial. The trial of a criminal case or an habitual criminal proceeding shall be commenced six (6) months after whichever of the following events occurs latest:
(1) the date of arraignment, or waiver of arraignment, in the district court of any defendant;
(6) if the defendant has been placed in a preprosecution diversion program, the date of the filing with the clerk of the district court of a notice of termination of a preprosecution diversion program for failure to comply with the terms, conditions or requirements of such program[.]
On appeal, the State argues that the district court erred in applying the six-month rule to these facts. The State contends that the six-month time period should be calculated from March 20, 1992, when Defendant waived arraignment on the second complaint. The State contends that the first indictment was dismissed for reasons other than delay or to circumvent the operation of the six-month rule, and that under State ex rel. Delgado v. Stanley, 83 N.M. 626, 627, 495 P.2d 1073, 1074 (1972), the second indictment began a new six-month period. The State’s argument has a basis in the express terms of the Supreme Court rule, which indicates that the later of the two relevant events in this ease commenced the six-month period within which Defendant should be tried under the rule.
We are not persuaded that Stanley completely answers the issue raised by this appeal. “A nolle prosequi is a dismissal of criminal charges filed by the prosecutor, usually without prejudice.” State v. Ware, 115 N.M. 339, 341, 850 P.2d 1042, 1044 (Ct.App.), cert. denied, 115 N.M. 228, 849 P.2d 371 (1993). Also, “a nolle prosequi is as final as any other dismissal with or -without prejudice.” Id. The State is invested with wide discretion to dismiss criminal charges and, absent an abuse of that discretion, its dismissal of a charge clearly terminates the proceedings against a defendant. See id. However, New Mexico courts are not willing to allow the filing of a nolle prosequi to determine the outcome of a six-month rule issue. Id. at 342, 850 P.2d at 1045; State v. Ericksen, 94 N.M. 128, 130, 607 P.2d 666, 668 (Ct.App.1980). Not every nolle prosequi starts the six-month clock anew. Ware, 115 N.M. at 342, 850 P.2d at 1045. Thus, we are not convinced that the Supreme Court rule plainly, or by its terms, requires reversal.
The district court concluded that on these facts, SCRA 5-604(B)(6), which refers to the procedure established by the legislature, controlled. The court reasoned that the Supreme Court did not intend that subsection “to be treated as surplusage or as an alternative to reindictment.” At least two of our cases provide support for the district court’s reasoning.
This Court recently held that when a defendant is terminated from a PDP, the six-month period commences from the State’s mailing of a notice of termination to the defendant, even if the notice is never filed in the district court. State v. Hastings, 116 N.M. 344, 348-49, 862 P.2d 452, 456-57 (Ct.App.), cert. denied, 116 N.M. 364, 862 P.2d 1223 (1993). If the same rule is applied to this case, the six-month period commenced from the date Defendant was terminated from the PDP, and trial should have commenced on or before August 4.
Further, we have held that a second complaint, not based on new facts or information not containing néw charges, does not supersede the first complaint and does not start a new six-month period for purposes of the six-month rule. State v. Lucero, 108 N.M. 548, 551, 775 P.2d 750, 753 (Ct.App.), cert. denied, 108 N.M. 433, 773 P.2d 1240, and writ quashed, 108 N.M. 582, 775 P.2d 1299 (1989). The filing of the second complaint in this case was not prompted by new facts or new information, nor does it contain new charges. Thus, the district court had a basis for concluding that under our cases the second complaint was simply a continuation of the original indictment and did not begin a new six-month period.
Consequently, the facts of the present case require us to determine whether Hastings and Lucero are distinguishable, as well as which provision of SCRA 5-604(B) controls. In making that determination, we look to the terms and purposes of the statute establishing the PDP, as well as the terms and purposes of the Supreme Court rule.
The Preprosecution Diversion Act, NMSA 1978, §§ 31-16A-1 to -8 (Repl.Pamp.1984), does not preclude the State from dismissing a criminal indictment when a defendant has been accepted into a PDP. In characterizing the prosecution of a defendant as “suspended,” the legislature has indicated that diversion interrupts the original proceeding. However, it is not clear that the legislature meant to preclude dismissal of the indictment as a method of implementing the legislative intent. Nor do we think the State is required to file a criminal charge, indictment, or information against a defendant as a prerequisite to admitting an individual into a PDP. Nothing in the statute dictates such a result, and it would be inconsistent with current practice.
Preprosecution diversion has traditionally been carried out in three different ways: (1) a potential defendant may be accepted into a PDP prior to the filing of a complaint, indictment, or criminal information; (2) a defendant may be admitted into the PDP and prosecution of any pending charges suspended without dismissal of such charges during a defendant’s satisfactory participation in the PDP; or, alternatively, (3) a defendant may be placed in a PDP and any pending criminal charges dismissed, subject to such charges being refiled if a defendant is terminated from the PDP. In some instances, then, an individual who has been arrested may be admitted into a PDP without having been formally charged. The State’s argument in effect asks us to recognize another analogous option: the State argued that it has, under the statute, an option either to suspend the first proceeding or to dismiss the first indictment. Such an option would allow the State greater flexibility in dealing with those who participate in a PDP. Thus, we think the State’s argument is supported by public policy in that it serves the purposes of the PDP. The remaining question is whether the argument is consistent with the rule’s purposes.
The purpose of SCRA 5-604 is to require that a defendant who has been charged with a criminal offense be promptly brought to trial. See State v. Mendoza, 108 N.M. 446, 448, 774 P.2d 440, 442 (1989); cf. State v. Flores, 99 N.M. 44, 46, 653 P.2d 875, 877 (1982) (construing prior rule of criminal procedure). SCRA 5-604(B)(6) presupposes, however, that a criminal charge or charges are pending against a defendant during the period of the defendant’s participation in the PDP. If the State chooses not to file charges, SCRA 5-604 would not be applicable. We are reluctant to deny the State the authority to persuade a defendant or to allow a defendant to enter a PDP by agreeing to dismiss charges while he or she is involved in the program, and, under those circumstances, we see no reason not to treat the proceedings as terminated, rather than suspended. That approach seems to be a common-sense result, as well as one that permits the parties to reach an agreement of mutual benefit. There are two Supreme Court cases that support this approach.
In Mendoza, our Supreme Court noted that SCRA 5-604(B) should not be technically applied to effect dismissal of criminal charges, and the rule is to be read with common sense. Id. at 448, 774 P.2d at 442. The Supreme Court held then that the six-month period for bringing a defendant to trial was suspended following a stay to determine the defendant’s competency to stand trial. Id. at 449, 774 P.2d at 443. The Court noted that the trial court had ordered suspension of the proceedings, and both parties had agreed. Id. The Court indicated that “suspension or stay of the proceedings contemplated a suspension of Rule 5-604 with recommencement of the six months upon the lifting of the stay.” Id.
In a later case, State v. Sanchez, 109 N.M. 313, 316, 785 P.2d 224, 227 (1989), the Supreme Court held that a defendant expressed his implied consent to continue the date for trial by signing a plea agreement, knowing that the hearing on the agreement was set at a date beyond the period allowed by the rule. In Sanchez, the Court held that “the six-month period simply does not apply during a time in which one of the circumstances contemplated by the rule is in effect. When such a circumstance is no longer in effect, then a new six-month period in its entirety applies.” Id.
Both of these cases provide some additional support for Defendant’s position that a new six-month period began when she was terminated from the PDP. See also Hastings, 116 N.M. at 348-49, 862 P.2d at 456-57. That is, the Court indicated that a new six-month period began at a point when the reason for suspending the proceedings ceased to exist. However, in both cases the Court also stressed that both parties to the proceedings had agreed to the suspension. See Sanchez, 109 N.M. at 317, 785 P.2d at 228; Mendoza, 108 N.M. at 449, 774 P.2d at 443. In addition, in neither of these cases nor in Hastings had the charges been dropped.
In this case, also, Defendant waived her right to a trial within six months. We recognize that the waiver is not specific and fails to state the event from which Defendant believed the rule would be measured. We do not hold that Defendant waived all of her rights under the six-month rule. Rather, we believe that the State correctly argues it was entitled to the benefit of SCRA 5-604(B)(1). We also believe that Lucero is distinguishable because it did not involve a preprosecution diversion, and that facilitating the success of a diversion provides a basis for permitting the option for which the State has argued.
We conclude that the district court erred in suggesting that the State’s argument was contrary to the Supreme Court’s intent in enacting SCRA 5-604(B)(6). Although the district court was persuaded that the charges in the second indictment were a continuation of the original proceedings, which were suspended by placing Defendant in the PDP pursuant to Section 31-16A-7(A), the State should be allowed the option of dismissing the indictment. Stanley provides protection against an abuse of the option. See id. at 627, 495 P.2d at 1074. Here, there is. no evidence that the dismissal of the initial indictment and Defendant’s later reindictment were carried out for purposes of delay or an attempt to circumvent SCRA 5-604(B)(6). Instead, the record shows that the State acted in good faith and dismissed the initial indictment when Defendant was accepted into the PDP. Therefore, SCRA 5—604(B)(1) applies. Consequently, we reverse the district court’s dismissal of the indictment and remand for reinstatement of the charges against Defendant.
IT IS SO ORDERED.
DONNELLY and BIVINS, JJ., concur.
. The language of the waiver was as follows: Being fully advised by my attorney of all of my legal rights regarding these charges and with the knowledge that I am being placed upon Pre-Prosecution Probation as a condition of that Pre-Prosecution Probation, I do hereby fully and voluntarily waive my right to both a speedy trial and a trial within six months. | [
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OPINION
APODACA, Judge.
Plaintiff appeals from a judgment entered in favor of Defendants after a jury trial of Plaintiffs medical malpractice suit. In the direct appeal, Plaintiff argues that the trial court: (1) abused its discretion in granting twenty peremptory challenges to all Defendants; (2) erred in denying Plaintiff additional peremptory challenges, and that SCRA 1986, 1-038(E) (Repl.1992) violates her right to equal protection of the laws; and (3) erred in not granting a new trial based on juror misconduct. In the cross-appeal, three of the four groups of Defendants argue that the trial court abused its discretion in denying their motions for an award of costs. Defendant Southwest Community Health Services is not involved in the cross-appeal.
We hold that the trial court did not abuse its discretion in granting twenty peremptory challenges to Defendants and in refusing to grant a new trial based on juror misconduct. We also hold that SCRA 1-038(E) does not authorize the granting of additional peremptory challenges to equalize the total number of such challenges granted to all plaintiffs and all defendants, and that the rule is not unconstitutional. Finally, we hold that the trial court’s denial of Defendants’ motions for costs was not an abuse of discretion. We thus affirm the trial court on all issues raised on both the appeal and cross-appeal.
BACKGROUND
Laura Candice Gallegos (Plaintiff or Laura) was born on February 26, 1981. It became apparent shortly after her birth that she was not a normal baby. At time of trial, Laura was ten years old and functioning at the level of a one- to three-month-old child. Laura, by and through her parents, Eugene and Aurora Gallegos, sued the nine individuals or entities that provided medical care during Mrs. Gallegos’ pregnancy and Laura’s delivery: C. Colbert Bollinger, M.D., Mrs. Gallegos’s primary obstetrician, and his practice association, OB-GYN Associates, Ltd. (collectively referred to as Dr. Bollinger); Southwest Community Health Services, doing business as Presbyterian Hospital Center (the Hospital), the hospital that conducted some prenatal tests and in which Mrs. Gallegos delivered Laura; Samuel Smith, M.D., Crosby Eaton, M.D., Frederick Cohn, M.D., and Milton Godinez, M.D. (collectively referred to as the Prenatal Defendants), the obstetricians who worked for OB-GYN Associates and who saw Mrs. Gallegos occasionally during her pregnancy; and Dr. Kusum Prabhakar, the anesthesiologist who saw Mrs. Gallegos briefly during her delivery, and her practice association, Anesthesia Medical Consultants, formally known as Albuquerque Anesthesia Services, Inc. (collectively referred to as Dr. Prabhakar). For ease of reference, we will refer in this opinion to the four groups of defendants as Dr. Bollinger, the Hospital, the Prenatal Defendants, and Dr. Prabhakar.
Discovery and pretrial practice in this case took several years; the trial consumed seven weeks. The jury returned with a verdict in favor of all Defendants. Plaintiff filed a motion for a new trial, which was denied. Defendants filed a motion for an award of costs totaling $127,112.94 against Plaintiff. The trial court found the costs to be reasonable and necessary, but ordered all parties to bear their own costs. Additional facts will be discussed as relevant.
DISCUSSION
I. Peremptory Challenges.
Before trial, Dr. Prabhakar filed a motion asking that she be allowed five peremptory challenges during jury selection. The trial court heard argument on Dr. Prabhakar’s motion and all the other Defendants who had not yet filed such a motion were allowed to be heard. Plaintiff argued that Defendants’ interests were not sufficiently diverse to justify the granting of additional peremptory challenges to them. Plaintiff alternatively argued that, if the trial court gave each of the four Defendants five peremptory challenges, principles of equal protection as guaranteed by the New Mexico and federal constitutions required the trial court to give Plaintiff twenty peremptory challenges as well. Ultimately, the trial court ordered that each of the four groups of Defendants be given five peremptory challenges, for a total of twenty peremptory challenges allocated to all Defendants, and denied Plaintiffs motion for an equal number of challenges. On appeal, Plaintiff argues against both of these rulings. These arguments will be addressed separately.
A. The Trial Court Did Not Abuse Its Discretion in Granting Each of the Four Defendants Five Peremptory Challenges.
The number of peremptory challenges allocated to the parties on each side of a lawsuit is governed by SCRA 1-038(E). For civil cases tried by a twelve-person jury, SCRA 1-038(E) provides that “each party may challenge five jurors peremptorily.” When there are multiple parties on one or both sides of the lawsuit, the rule requires that the number of peremptory challenges allocated to that side be exercised by the parties jointly. However, SCRA 1-038(E) also provides that, if the interests of multiple parties on the same side of the lawsuit are “diverse,” the trial court shall allow each party on that side of the lawsuit five peremptory challenges. Because the decision necessarily must be made before the beginning of trial, the trial court’s decision is based on the pleadings in the case and the assertions of the parties. Carraro v. Wells Fargo Mortgage & Equity, 106 N.M. 442, 445, 744 P.2d 915, 918 (Ct.App.), cert. denied, 106 N.M. 439, 744 P.2d 912 (1987).
In determining whether additional challenges will be allowed, the trial court may consider “ ‘(1) whether the parties employed the same attorneys; (2) whether separate answers were filed; (3) whether the [parties’] interests were antagonistic; and, (4) in a negligence claim, whether different independent acts of negligence are alleged in a suit governed by comparative negligence.’” Gallegos v. Citizens Ins. Agency, 108 N.M. 722, 734, 779 P.2d 99, 111 (1989) (quoting Carraro, 106 N.M. at 445, 744 P.2d at 918). On the question of whether the interests of multiple defendants are diverse, the trial court should consider the extent to which the alleged diversity of interest will affect the choice of individual jurors when considered in light of the common interests of the defendants as against the interests of the plaintiff or plaintiffs in the selection of jurors. Id. The decision to allocate additional challenges to multiple parties on the same side of a lawsuit is within the trial court’s discretion and is reviewed on appeal only for an abuse of discretion. Id.
In this appeal, there were nine separate defendants who essentially have been treated throughout trial and on appeal as four defendants. These four groups of Defendants filed different answers and were represented by different attorneys throughout the proceedings. Although all four Defendants were alleged to have breached the standard of care, different specific acts of commission or omission were alleged against each Defendant. For example, Plaintiff alleged that Dr. Bollinger breached the standard of care by not properly performing a version procedure, by not timely arriving at the Hospital for the delivery, and by not performing a Caesarian section. The Hospital was alleged to have breached the standard of care by failing to call another doctor when Dr. Bollinger did not arrive promptly at the Hospital. Plaintiff alleged that Dr. Bollinger and the Prenatal Defendants breached the standard of care because they did not order early ultrasound testing to ascertain Mrs. Gallegos’ due date, because they did not deliver Laura when Mrs. Gallegos was forty-two weeks pregnant, and because they failed to properly coordinate their care of Mrs. Gallegos. Dr. Bollinger, the Prenatal Defendants, and the Hospital were alleged to have breached the standard of care by not properly interpreting a non-stress test. Dr. Bollinger and the Hospital were alleged to have breached the standard of care by failing to ensure that there was continuous fetal heart monitoring during delivery. Dr. Bollinger and Dr. Prabhakar were alleged to have breached the standard of care by failing to have a backup anesthesiologist available when Dr. Prabhakar was called away during the delivery. In addition, Dr. Prabhakar was alleged to have breached the standard of care by leaving Mrs. Gallegos during the delivery. We believe this recitation of Plaintiffs claims demonstrates Defendants’ diverse and potentially conflicting interests. We thus hold the trial court did not abuse its discretion in giving each Defendant five peremptory challenges.
B. SCRA 1-038(E) Does Not Authorize the Trial Court to “Equalize” the Number of Peremptory Challenges and Does Not Violate Equal Protection.
Before addressing the merits of this issue, we address two preliminary questions raised by Defendants. Defendants first contend that Plaintiff has waived review of this issue either because Plaintiff failed to make a record of which jurors she would have stricken if she had had additional challenges or because Plaintiff failed to use all her peremptory challenges, or both. We believe both of these points raise the issue of whether Plaintiff was prejudiced by the alleged error, and because of our disposition, we need not address them, as noted below. State v. Hoxsie, 101 N.M. 7, 10, 677 P.2d 620, 623 (1984) (assertion of prejudice is not a showing of prejudice, and appellate court will not reverse in absence of prejudice), overruled on other grounds by Gallegos v. Citizens Ins. Agency, 108 N.M. 722, 731, 779 P.2d 99, 108 (1989); Sheraden v. Black, 107 N.M. 76, 80, 752 P.2d 791, 795 (Ct.App.1988) (appellate court will only correct errors that affect the result).
Additionally, to preserve an issue for appeal, the party seeking to raise the issue must affirmatively demonstrate that the issue was raised below and a ruling of the trial court invoked on the issue. See, e.g., City of Albuquerque v. Sanchez, 113 N.M. 721, 725, 832 P.2d 412, 416 (Ct.App.1992). In this case, Plaintiff clearly raised the equal protection argument below, and the trial court ruled against her on that issue. Thus, we hold that Plaintiff has not waived the issue on appeal and can raise it.
Second, in response to the Hospital’s contention that we should not reach the merits of this appeal based on comity between this Court and our Supreme Court, we do not believe this Court is prohibited from considering Plaintiffs arguments simply because the arguments, if successful, would require us to hold that a procedural rule promulgated by our Supreme Court is unconstitutional. We recognize that this Court cannot overrule New Mexico Supreme Court precedent. See Alexander v. Delgado, 84 N.M. 717, 718, 507 P.2d 778, 779 (1973). However, our Supreme Court recently modified Alexander and held that this Court could review the validity of uniform jury instructions and was precluded only from overruling instructions that our Supreme Court has considered in actual cases. State v. Wilson, 116 N.M. 793, 795-96, 867 P.2d 1175, 1177-78 (N.M.1994). We believe this holding is applicable to all rules promulgated by our Supreme Court. Because our Supreme Court has not previously considered the constitutionality of SCRA 1-038(E), see Carraro, 106 N.M. at 444, 744 P.2d at 917 (refusing to address plaintiffs constitutional argument because not raised below), we are therefore not precluded from considering Plaintiffs arguments.
Based on our discussions below, we hold that SCRA 1-038(E) does not authorize an “equalization” of peremptory challenges and does not violate Plaintiffs rights to equal protection under the New Mexico or federal constitutions. Because we have reached this decision based on the merits of Plaintiffs arguments, it is not necessary to address the question of whether Plaintiff was prejudiced by the trial court’s ruling. This necessarily includes not having to reach Defendants’ arguments on waiver.
1. “Equalization” of Challenges.
Plaintiff argues that this Court should construe SCRA 1-038(E) to authorize giving her a number of peremptory challenges equal to the number given to all Defendants. However, the rule’s plain language authorizes granting additional peremptory challenges only to multiple parties with diverse interests that are on the same side of the lawsuit. Carraro, 106 N.M. at 444, 744 P.2d at 917. The trial court cannot grant a party additional peremptory challenges in a manner that is not contemplated by SCRA 1-038(E). Id.; see also Morris v. Cartwright, 57 N.M. 328, 331, 258 P.2d 719, 721-22 (1953) (former law); American Ins. Co. v. Foutz & Bursum, 60 N.M. 351, 354-57, 291 P.2d 1081, 1083-84 (1955) (recognizing that the holding of Cartwright does not apply when there is a plaintiff, a defendant, and a third-party defendant). The rule could have easily provided for such additional challenges. Its failure to do so leads us to the conclusion that none were intended.
2. Violation of Equal Protection.
Plaintiff argues that SCRA 1-038(E) violates her right to equal protection of the laws as guaranteed by the New Mexico and federal constitutions. See U.S. Const, amends. V, XIV, § 1; N.M. Const, art. II, § 18. We note at the outset that the tests for reviewing equal protection challenges are the same under New Mexico and federal law. Richardson v. Carnegie Library Restaurant, Inc., 107 N.M. 688, 693, 763 P.2d 1153, 1158 (1988).
Plaintiff first argues that the right to a fair and impartial jury is explicitly guaranteed by the New Mexico Constitution and therefore a party’s right to receive peremptory challenges should be treated as a fundamental right for equal protection analysis. See id. (statute infringing upon a fundamental constitutional right is analyzed under strict scrutiny standard).' We assume without deciding that Plaintiff had a right to a jury trial in this case, and that the right to a jury trial includes a right to an impartial jury. See N.M. Const, art. II, § 12 (“The right of trial by jury as it has heretofore existed shall be secured to all and remain inviolate.”). However, even assuming the existence of these rights, we do not believe that it necessarily follows that peremptory challenges are a fundamental right.
Both the United States Supreme Court and the New Mexico Supreme Court have held that the right to an impartial jury does not include a right to peremptory challenges. Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 2278, 101 L.Ed.2d 80 (1988); Stilson v. United States, 250 U.S. 583, 586-87, 40 S.Ct. 28, 29-30, 63 L.Ed. 1154 (1919); State v. Sutphin, 107 N.M. 126, 128, 753 P.2d 1314, 1316 (1988). As our Supreme Court has observed, “[t]here is no constitutional right, either federal or state, which affords [a] defendant peremptory challenges. The only right guaranteed is the right to a fair trial. U.S. Const, amend. VI; N.M. Const, art. II, §§ 14 & 18. The number of challenges to be afforded a defendant is a privilege properly controlled by a court rule.” Sutphin, 107 N.M. at 128, 753 P.2d at 1316. Because the right to peremptory challenges is not a fundamental constitutional right, we will not apply the strict scrutiny standard of review. See Richardson, 107 N.M. at 693, 763 P.2d at 1158. We believe the appropriate test to apply in reviewing SCRA 1-038(E) is the minimum scrutiny or rational basis test. See Trujillo v. City of Albuquerque, 110 N.M. 621, 628, 798 P.2d 571, 578 (1990) (tort victims not considered a “‘suspect class’ ”); Meyer v. Jones, 106 N.M. 708, 711, 749 P.2d 93, 96 (1988) (rational basis is the appropriate level of scrutiny when the classification is not suspect and the fundamental right to a jury trial is not implicated); Richardson, 107 N.M. at 693, 763 P.2d at 1158 (legislation is presumptively valid and normally subject to rational basis test).
Under the minimum or rational basis level of scrutiny, SCRA 1-038(E) is presumed constitutional, and the burden is on Plaintiff to demonstrate that it is clearly arbitrary and unreasonable, not just that it is possibly so. Richardson, 107 N.M. at 693, 763 P.2d at 1158. “ ‘The general rule is that legislation [ ... ] will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.’” State v. Neely, 112 N.M. 702, 708, 819 P.2d 249, 255 (1991) (quoting City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985)).
Plaintiff contends that SCRA 1-038(E) creates two classes of plaintiffs, those who are injured by a single wrongdoer and those who are injured by multiple wrongdoers. However, SCRA 1-038 is party neutral, meaning that it applies with equal force to plaintiffs and defendants. Additionally, the basis of classification employed by the rule is not the number of parties on one side of the suit or the other; instead, the classification is based on the similarity or diversity of the interests of the parties on the same side of the lawsuit. If the interests of one party are diverse from those of other parties on the same side, then that party is entitled to additional peremptory challenges. The diversity or lack of diversity of interests among parties on the same side of a lawsuit is a rational means for determining the allocation of peremptory challenges because, when the parties’ interests are diverse, there is likely to be conflict among the parties on the “same side” and they are likely to be unable to use their peremptory challenges jointly. See American Ins. Co., 60 N.M. at 354-57, 291 P.2d at 1083-84 (third-party defendant allowed additional peremptory challenges because, due to the conflict between the defendant and the third-party defendant, they cannot be deemed one party); accord Stitt v. Mahaney, 72 Mich.App. 120, 249 N.W.2d 319, 321 (1976) (no denial of equal protection where defendants granted total of twelve peremptory challenges and plaintiff only three), rev’d on other grounds, 403 Mich. 711, 272 N.W.2d 526 (1978).
II. Trial Court did not Abuse its Discretion In Refusing to Grant Plaintiff a New Trial.
After trial, Plaintiff moved for a new trial based in part on what Plaintiff characterized as “possible juror misconduct.” The motion was supported by an affidavit from Mr. Gallegos, in which he stated that, during the second day of deliberations and immediately before the jury returned with its verdict, he overheard an alternate juror tell another person that one juror had called her to tell her that there would be a verdict that day. Plaintiffs motion argued that the trial court should have authorized discovery from the alternate juror and the juror to whom the alternate had spoken, to determine the facts concerning the contact and whether additional discussions of the case had occurred. The trial court denied the motion. On appeal, Plaintiff argues that Mr. Gallegos’ affidavit established that there had been improper communications between a juror and an alternate juror, and that this fact mandates reversal.
Defendants contend that this Court should not address this issue because it was not properly raised and preserved below. See Woolwine v. Furr’s, Inc., 106 N.M. 492, 496-97, 745 P.2d 717, 721-22 (Ct.App.1987) (an issue cannot be raised on appeal unless it was raised in the trial court and a ruling invoked). We prefer to assume the issue was preserved and reach the merits. On the merits, we reject Plaintiff’s contention.
State v. Melton, 102 N.M. 120, 692 P.2d 45 (Ct.App.1984), sets out the appropriate analysis to determine whether extraneous material improperly reached the jury. The first step is to determine whether an improper communication occurred. Id. at 122-23, 692 P.2d at 47-48. After it has been established that such a communication has occurred, a presumption of prejudice arises. Id. at 123, 692 P.2d at 48. The party resisting a new trial then has the burden of proving the communication was harmless. Id. We review the trial court’s decisions regarding whether the presumption of prejudice has been overcome for an abuse of discretion. Id.
Plaintiff contends that Mr. Gallegos’ affidavit demonstrated that the juror who allegedly spoke with the dismissed alternate juror violated two jury instructions: SCRA 1986, 13-106(1) (Repl.1991), and SCRA 1986, 13-201 (Repl.1991). SCRA 13-106(1) advises jurors that, “[d]uring recesses and adjournments, while this case is in progress, you should not discuss the case with other jurors or with anyone else.” SCRA 13-201 similarly admonishes jurors not to discuss the case with other persons during any recess. We disagree with Plaintiffs characterization of the communication in this appeal as a violation of SCRA 13-106 and 13-201. The communication concerned only the chronological progress of the trial and not the merits of the case. Cf. SCRA 1986, 11-606(B) (effective until December 1, 1993) (when validity of verdict is inquired into, juror may testify concerning whether extraneous prejudicial information was brought to jury’s attention or outside influence brought to bear on any juror). Plaintiff cites no authority for the proposition that jurors may not discuss whether and when they expect a trial to finish, and her claim (that a juror mentioning such a matter is prejudicial) is mere supposition. On the contrary, there are sound, practical reasons for jurors’ discussion of matters such as the chronology of the trial, so that they can make decisions concerning employment and other personal matters. Additionally, such communications from jurors do not indicate that, in making its decision, the jury improperly considered extraneous information. Cf. State v. Chamberlain, 112 N.M. 723, 733, 819 P.2d 673, 683 (1991) (trial court did not abuse its discretion in denying motion for further inquiry where there was no evidence that new evidentiary facts went before jury during deliberations). We thus conclude that the trial court did not abuse its discretion in denying Plaintiffs motion for new trial based on Mr. Gallegos’ affidavit.
III. The Trial Court Did Not Abuse Its Discretion in Refusing to Order Plaintiff to Pay Defendants’ Costs in the Amount of $127,112.94.
The trial court held a post-trial hearing on Defendants’ motions for costs. At the outset, Plaintiffs attorney indicated that Plaintiff was not attacking Defendants’ bills of costs or suggesting that the costs were unreasonable. Instead, the attorney informed the trial court that there was no money to pay the costs. He pointed out that Laura was getting worse every day, that Mr. and Mrs. Gallegos had spent all of their time and money on Laura, and indicated that, if Plaintiff and her parents were ordered to pay Defendants’ costs, the family would be forced to file for relief under the bankruptcy laws.
Counsel for Defendants did not contest the assertion that Laura’s parents would be forced to file for bankruptcy if costs were awarded. Instead, he argued that Defendants wanted an award of costs to use as a negotiating tool in case Plaintiff appealed. Counsel indicated that he had his clients’ permission to waive the award of costs if there was no appeal. He also argued that the unpaid costs award could be written off as a bad debt.
The trial court found that the expenses listed in the various bills of costs were reasonable and necessary, but declined to award costs, indicating that it was not going to force Mr. and Mrs. Gallegos into bankruptcy. Dr. Bollinger, the Prenatal Defendants, and Dr. Prabhakar have appealed the trial court’s decision that each party shall bear its own costs; the Hospital has not. Dr. Bollinger argues that Plaintiff failed to prove that Mr. and Mrs. Gallegos were indigent, that the denial of costs amounts to an unfair penalty against him, and that Plaintiff was responsible for unnecessarily increasing the expense of litigation. The Prenatal Defendants argue that the denial of costs is a penalty that they did not deserve and that the evidence before the trial court was insufficient to support a finding of financial hardship. Dr. Prabhakar argues that New Mexico law does not authorize the trial court to consider the financial circumstances of the losing party in determining whether to award costs and that the evidence before the trial court did not support a finding that Mr. and Mrs. Gallegos were indigent.
We observe, however, that several of these arguments are raised for the first time on appeal. They will therefore not be considered. See Woolwine, 106 N.M. at 496-97, 745 P.2d at 721-22. Thus, we will not address Dr. Bollinger’s argument that Plaintiff unnecessarily increased the expense of litigation or the arguments that Plaintiff failed to prove indigency or financial hardship. Instead, we discuss only the scope of the trial court’s discretion under SCRA 1986, 1-054(E) (Repl.1992), and the role that the financial circumstances of the parties may play in determining whether to award costs.
SCRA 1-054(E) provides that “costs shall be allowed as a matter of course to the prevailing party unless the court otherwise directs.” As the rule’s language suggests, costs are usually but not always awarded to the prevailing party. See Mascarenas v. Jaramillo, 111 N.M. 410, 415, 806 P.2d 59, 64 (1991) (affirming the trial court’s denial of costs to the prevailing party as within its discretion). The assessment of costs in a civil action is a matter committed to the sound discretion of the trial court, and the trial court’s determination will be reversed only for an abuse of discretion. Pioneer Sav. & Trust, F.A v. Rue, 109 N.M. 228, 281, 784 P.2d 415, 418 (1989); South v. Lucero, 92 N.M. 798, 804, 595 P.2d 768, 774 (Ct.App.), cert. denied, 92 N.M. 675, 593 P.2d 1078 (1979).
Defendants’ arguments on appeal rely on cases decided under Rule 54(d) of the Federal Rules of Civil Procedure. We acknowledge that the relevant language of the federal rule and the New Mexico rule is identical. Compare SCRA 1-054(E) mth 28 U.S.C.A. Rule 54(d) (West.1992). Cases decided under the federal rule are often persuasive to this Court if they are not in conflict with controlling New Mexico authority and are based'on sound logic and policies consistent with the law of this state. See Sundial Press v. City of Albuquerque, 114 N.M. 236, 239, 836 P.2d 1257, 1260 (Ct.App.1992) (involving SCRA 1986, 1-054(0(1)); Fowler-Propst v. Dattilo, 111 N.M. 573, 575, 807 P.2d 757, 759 (Ct.App.) (involving SCRA 1986, 1-060(B)), cert. denied, 111 N.M. 678, 808 P.2d 963 (1991). Based on eases decided under the federal rule, Defendants argue that there is a “strong” presumption that the prevailing party is entitled to costs, see, e.g., Congregation of the Passion v. Touche, Ross & Co., 854 F.2d 219, 222 (7th Cir.1988), which presumption can be overcome only by a showing of misconduct, bad faith, or abusive tactics during the litigation. See id.
We believe that Defendants read SCRA 1-054(E) too narrowly. It is true that the federal courts have at times denied the prevailing party costs as a penalty for the conduct of the case. See, e.g., Chicago Sugar Co. v. American Sugar Ref. Co., 176 F.2d 1, 11 (7th Cir.1949) (reversing the trial court’s denial of costs to the prevailing party because the denial was based on action prior to litigation), cert. denied, 338 U.S. 948, 70 S.Ct. 486, 94 L.Ed. 584 (1950); Remington Prods, v. North Am. Phillips Carp., 763 F.Supp. 683, 687-88 (D.Conn.1991) (affirming the trial court’s denial of costs to the prevailing party based on the prevailing party’s bad faith during discovery). However, we conclude that the scope of the trial court’s discretion is not limited only to such situations. As Professor Moore has observed, the phrase “unless the court otherwise directs” states “an equitable principle; and, subject to the exceptions imposed by the Rule, vests in the district court a sound discretion over the allowance, disallowance, or apportionment of costs in all civil actions.” James W. Moore et al., 6 Moore’s Federal Practice ¶ 54.70[5] at 54-331 (2d ed. 1993) (footnotes omitted). The federal courts therefore approach the issue of awarding costs on a ease-by-case basis, based on the equities of the situation. 10 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure, Civil 2d § 2668 (2d ed. 1983). The losing party may overcome the presumption in favor of awarding costs to the winning party by showing “bad faith on the part of the prevailing party, or misconduct during the course of the litigation, or that an award would be unjust, or that other circumstances justify the penalty of denial of costs.” Laura B. Bartell, “Taxation of Costs and Awards of Expenses in Federal Court,” 101 F.R.D. 553, 560 (1984) (citations omitted). “The most common bases for denying costs to prevailing defendants have been the indigency of the losing plaintiff, coupled with good faith of the indigent and the non-frivolous nature of the case.” Id. at 561 (citations omitted).
Federal courts have, on appropriate occasions, denied a prevailing defendant costs based on the plaintiffs inability to pay the costs award. See Badillo v. Central Steel & Wire Co., 717 F.2d 1160, 1165 (7th Cir.1983); Williams v. Hevi-Duty Elec. Co., 122 F.R.D. 206, 214 (M.D.Tenn.1988); Schaulis v. CTB/McGraw Hill, Inc., 496 F.Supp. 666, 680 (N.D.Cal.1980). Even courts that have not denied costs on that basis have indicated that the losing party’s ability to pay is a proper factor to consider in determining whether to award costs. Congregation of the Passion, 854 F.2d at 222; Maldonado v. Parasole, 66 F.R.D. 388, 390 (E.D.N.Y.1975). As one court stated:
It may well be desirable that the potential cost of unsuccessful litigation should act as a deterrent to litigation and an incentive for the parties to settle. But where the antagonists are very unevenly matched in size, resources, and stability, it would be unfortunate to use the possible taxation of costs as a sword of Damocles and so prevent a good faith defense. It is to inevitate such a result that the court’s discretion is employed in such instances.
Boas Box Co. v. Proper Folding Box Corp., 55 F.R.D. 79, 81 (E.D.N.Y.1971). In Boas Box, the defendant was a small business faced with a costs bill of $1,572.32. Id. at 80. We believe the principle applies with equal or even greater force to Plaintiff and her parents in this case, who are private persons faced with a costs bill of nearly $130,000.
In summary, Defendants sought costs in the total amount of almost $130,000. Common sense tells us that even persons who are not poverty stricken would have difficulty in paying a judgment in that amount. The evidence during trial indicated that Mr. Gallegos worked part-time for a wage of approximately $5.00 an hour and that Mrs. Gallegos did not work outside the home for pay. Defendants did not argue, and the trial court did not find, that Plaintiff engaged in bad faith or abusive litigation tactics. Similarly, no one has suggested that Plaintiffs claims were frivolous. We therefore conclude that the trial court properly considered Plaintiffs and her parents’ ability to pay as one factor to be considered in determining whether to award Defendants their costs. On these facts, we hold that the trial court did not abuse its discretion in ordering that the parties should bear their own costs.
CONCLUSION
We hold that the trial court: (1) did not abuse its discretion in granting each of the four groups of defendants five peremptory challenges because the Defendants’ interests were sufficiently diverse to justify the allocation of additional peremptory challenges to them; (2) did not err in denying Plaintiffs request for additional peremptory challenges because the plain language of SCRA 1-038(E) does not authorize the trial court to give either opposing parties additional peremptory challenges to equalize the number of peremptory challenges; (3) did not abuse its discretion in refusing to grant Plaintiff a new trial based on juror misconduct; and (4) did not abuse its discretion in considering Plaintiffs and her parents’ ability to pay Defendants’ costs or in ordering that the parties bear their own costs. Additionally, we determine that SCRA 1-038(E) does not violate equal protection. The trial court’s judgment is therefore affirmed.
IT IS SO ORDERED.
ALARID and FLORES, JJ., concur. | [
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OPINION
CHAVEZ, Judge.
Fireman’s Fund Insurance Companies (Fireman’s Fund) appeals and Worker cross-appeals from the Workers’ Compensation Judge’s (WCJ) compensation order. This case involves the consolidation of two claims for injuries suffered by Worker on April 11, 1989, (first accident) and on June 25, 1990, (second accident) while working at McAnally Enterprises (Employer) as a chicken farm laborer. Fireman’s Fund insured Employer for the first accident, and Legion Insurance Company (Legion) insured Employer for the second accident.
The first accident occurred when Worker slipped and landed in a pit where chicken waste was collected. As a result of this accident, Worker fractured his tenth rib and suffered low back and elbow pain. In August 1989, Worker returned to work for Employer. Approximately ten months later, the second accident occurred when Worker again slipped, this time injuring his left wrist.
In July 1991, Worker was released back to work and was offered either the same position he had prior to the accidents or a position cleaning the light bulbs in the chicken houses. Worker never contacted Employer about the job offers and was eventually terminated. At trial, the WCJ found that Worker: (1) was able to return to his employment in some aspects and would not need vocational rehabilitation; (2) was offered jobs within his restrictions, but he did not accept them; (3) refused to even attempt to perform the jobs which were offered to him and which he was capable of performing; (4) was totally temporarily disabled from June 25, 1990, to July 17, 1991, as a result of the first accident; and (5) was 40% permanently partially disabled as a result of the first accident.
On appeal, Fireman’s Fund asserts that the WCJ erred by finding that: (1) it was liable for temporary total disability benefits from June 25, 1990, to July 17,1991; and (2) the compensation award for the first accident was not limited to the scheduled injury to the elbow. Unpersuaded by the arguments made by Fireman’s Fund, we affirm the compensation order in its entirety. Worker’s cross-appeal contends that the WCJ erred in not finding him totally disabled. Our motions panel previously dismissed Worker’s cross-appeal, and we here explain our reasons for doing so.
WORKER’S CROSS-APPEAL
Worker asserts that his cross-appeal was timely and raises the following issue of first impression: Whether SCRA 1986, 12-601 (Repl.1992), provides that the Rules of Appellate Procedure governing appeals from the district court do not commence to apply until after the filing of the docketing statement by the appellant in an administrative appeal. We hold that it does not.
SCRA 12-601 (B) states,
Initiating the Appeal. Direct appeals from orders, decisions or actions of boards, commissions, administrative agencies or officials shall be taken by filing a notice of appeal or complaint on appeal with the appellate court clerk, together with the docket fee and proof of service thereof on the agency involved and all parties in accordance with Rule 12-307 within thirty (30) days from the date of the order, decision or action appealed from. Thereafter, within thirty (30) days of the filing of the notice of appeal or complaint on appeal, the appellant shall file a docketing statement in accordance with Rule 12-208 and the appeal shall thereafter proceed in accordance with these rules, notwithstanding any provision of law to the contrary. (Emphasis added.)
Worker interprets the “shall thereafter proceed” language to mean that the appellate rules do not commence to apply until after appellant has filed a docketing statement. Thus, since Worker filed his notice of appeal before the filing of any docketing statement, Worker argues that his appeal was timely.
We disagree with Worker’s interpretation. Nothing in SCRA 12-601 explicitly authorizes a party to file cross-appeals later than the ten days as specifically outlined in SCRA 1986, 12-201(A) (Repl.1992). To interpret the rule as Worker argues would be to assume that the Supreme Court adopted a rule inconsistent with a rule directly on point. We will not do so, because such a holding would lead to an inconsistent and absurd result. See Gonzales v. Lovington Pub. Sch., 109 N.M. 365, 370, 785 P.2d 276, 281 (Ct.App.1989), cert. denied, 109 N.M. 262, 784 P.2d 1005 (1990); see also State v. Eden, 108 N.M. 737, 741, 779 P.2d 114, 118 (Ct.App.) (same canons of construction applied to rules of procedure as those applied to statutes), cert. denied, 108 N.M. 681, 777 P.2d 1325 (1989). As such, we consider Rule 12-201(A), which specifically governs cross-appeals, as controlling.
In this ease, it appears that Worker tried to proceed in accordance with SCRA 12-201(A) in that he filed a separate notice of cross-appeal and then filed a docketing statement within thirty days of it, rather than filing a docketing statement within thirty days of the original notice of appeal. However, Worker made the procedural error of filing his notice of appeal more than ten days from the date Employer filed its notice of appeal. Thus, Worker’s appeal was untimely as provided by SCRA 12-201(A) and was appropriately dismissed.
Worker also argues that NMSA 1978, Section 39-3-8 (Repl.Pamp.1991), allowing fifteen days to file a cross-appeal, governs. However, since rules of appellate procedure govern over statutes which are inconsistent, SCRA 12-201(A) controls in this situation. See American Auto. Ass’n v. State Corp. Comm’n, 102 N.M. 527, 528, 697 P.2d 946, 947 (1985) (a rule adopted by the Supreme Court governs over an inconsistent statute). Consequently, Worker’s arguments fail, and we dismiss his cross-appeal.
FIREMAN’S FUND’S CLAIMS
Fireman’s Fund is not taking the position that the WCJ erred in applying the law. Therefore, we review whether there was sufficient evidence to support the WCJ’s result. When reviewing the sufficiency of evidence, we account for the whole record, including what fairly detracts from the result the fact finder reached. See Herman v. Miners’ Hosp., 111 N.M. 550, 552, 807 P.2d 734, 736 (1991). We defer to the fact finder’s resolution of conflicts in the evidence and indulge all inferences in favor of the findings. Id. After doing so, we affirm if there is such evidence in the whole record that a reasonable mind would accept as adequate support for a finding. Id. In other words, if we can conscientiously say the evidence supporting a finding is substantial, we will not set it aside. See Tallman v. ABF (Arkansas Best Freight), 108 N.M. 124, 129, 767 P.2d 363, 368 (Ct.App.), cert. denied, 109 N.M. 33, 781 P.2d 305 (1988).
First, Fireman’s Fund contends that it should not be responsible for total temporary disability benefits between June 25, 1990, to July 17, 1991, because the disability to Worker’s left arm was the result of the second accident, when Legion was the insurer. To resolve this issue, we look to the definition of disability in what the parties concede is the applicable “third law” of Workers’ compensation. Under the third law, disability is a measure of an inability to do work for which the particular Worker is fitted by age, experience, and knowledge. See NMSA 1978, §§ 52-1-25(A) & -26(B) (Repl.Pamp.1987). In support thereof, Fireman’s Fund contends that Worker testified that when he went back to work for Employer in August of 1989, he was performing the same duties he performed prior to the April 1989 accident. Furthermore, Fireman’s Fund points to Dr. Diven’s testimony in which he states that the reason Worker was taken from work was because of the wrist injury caused by the second accident.
However, as Legion points out, Dr. Diven testified that before the second accident Worker’s left arm maladies included complaints of numbness and tingling, and Worker had plans for surgery to relieve the carpal tunnel symptoms. In addition, there was evidence that the surgery performed on Worker’s left wrist was to correct degenerative problems aggravated by the first accident which pre-existed the second accident. As a consequence, evidence that Worker’s surgery was planned before the second accident and that Worker’s arm problems preexisted the second accident is substantial evidence to support liability for Fireman’s Fund.
Second, Fireman’s Fund argues that, regardless of who is liable for disability compensation, it should be no more than that allowed for a scheduled injury to the left elbow. See NMSA1978, § 52-1-43(A) (Repl. Pamp.1987). The shortcoming in this argument is the assumption that the injury to Worker’s elbow arising from the first accident was, as a matter of law, the only injury involved. Reading the WCJ’s findings in a way that supports its judgment, we hold that the WCJ found that the sum total of all of Worker’s injuries made him partially unable to work after his surgery related to the first accident. See Herrera v. Roman Catholic Church, 112 N.M. 717, 721, 819 P.2d 264, 268 (Ct.App.1991) (findings of the trial court will be construed so as to uphold the judgment rather than to reverse it, unless clearly erroneous or deficient). We reach this result because the WCJ’s findings expressly determined whether a particular injury was non-disabling, such as those findings related to the Worker’s 1990 face injury. In contrast, the findings regarding Worker’s 1989 back, rib, and elbow injuries were not labeled as nondisabling. Therefore, we consider those injuries not expressly identified as nondisabling to be classified as disabling injuries.
Additionally we find substantial evidence to support this result. Dr. Diven gave Worker several different impairments for the back injury, the wrist injury, and the elbow injury. Dr. Watson also indicated that Worker suffered from multiple limitations for use of the left arm for lifting, gripping, pushing, pulling, or carrying, and could not pursué heavy lifting because of the limitation to his lower back. Dr. Watson also stated that Worker was seriously disabled by multiple injury conditions. Therefore, we hold there was substantial evidence to support the compensation order to the extent it relied on the fact that Worker’s disability was not limited to a scheduled member or function.
We affirm the compensation order in its entirety and grant Worker’s request for fees on appeal in the amount of $1,000.
IT IS SO ORDERED.
PICKARD and FLORES, JJ., concur. | [
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OPINION
HARTZ, Judge.
The disposition of this appeal turns on whether the New Mexico statute authorizing municipalities to enact ordinances establishing merit systems, NMSA 1978, Section 3-13-4 (Repl.1985), permits such ordinances to apply to municipal officers. We hold that it does not and therefore reverse.
Wilma Webb was appointed clerk-treasurer of the ViEage of Ruidoso Downs in 1982 by Mayor J.C. Day. In 1986 Mayor J.C. Harris appointed a new clerk-treasurer. Webb then sued the VElage for damages for wrongful termination. The district court ruled in her favor, awarding $25,676.46. The essential facts were not contested at trial. The dispute concerned the legal authority of the VElage to terminate Webb.
The district court ruled that Webb was covered by the Village’s merit system ordinance and that pursuant to the ordinance she had a contract of employment with the VElage. Because Webb’s termination was not in compliance with the merit system ordinance, the court concluded that the termination was wrongful. The ViEage does not dispute that it failed to comply with its merit system ordinance in terminating Webb. Also, we assume, without deciding, that the ordinance by its terms covers Webb. Our reason for reversal is that Webb was a municipal officer and the New Mexico statute authorizing municipalities to enact merit system ordinances for municipal employees does not authorize such ordinances to cover municipal officers.
Webb’s strongest argument to the contrary derives from the language of NMSA 1978, Section 3-ll-6(D) (Repl.1985), which states:
Subject to the limitation of a merit system ordinance adopted as authorized in Section 3-13-4 NMSA 1978:
(1) the governing body may discharge an appointed official or employee by a majority of all the members of the governing body;
(2) the mayor may discharge an appointed official or employee upon the approval of a majority of all the members of the governing body; or
(3) the mayor may suspend an appointed official or employee untE the next regular meeting of the governing body at which time the suspension shall be approved or disapproved by a majority of all the members of the governing body. If the suspension of the appointed official or employee is disapproved by the governing body, the suspended appointed official or employee shall be paid the compensation he was entitled to receive during the time of his suspension.
This paragraph provides for the discharge of “an appointed official or employee,” but conditions the power of discharge by making it “[sjubject to the limitation of a merit system ordinance.” Webb contends that this means that the right to discharge an appointed official “is clearly subject to the limitations of a Merit System Ordinance.”
On the other hand, Section 3-13 — 4(A) states: “Any municipality may establish by ordinance a merit system for the hiring, promotion, discharge and general regulation of municipal employees.” (Emphasis added.) Section 3-13 — 4 makes no reference to public officials or officers.
Both Section 3-ll-6(D) and Section 3-13-4 were enacted by 1965 New Mexico Laws, Chapter 300. Because the language of Sec-. tion 3-ll-6(D) establishes that the drafters of the legislation were well aware of the distinction between municipal officials and municipal employees, one must question why Section 3-13 — 4 mentions only employees, and not officials or officers, if merit system ordinances are authorized to include the latter.
Moreover, the implication of the language in Section 3-11-6(D) that merit system ordinances apply to appointed officials is not as strong an implication as Webb suggests. To avoid totally the inference drawn by Webb, the legislature would have needed to replace Section 3-11-6(D) by two paragraphs. One would relate to appointed officials, the other would relate to employees. The language of the two paragraphs would otherwise be identical except that the paragraph related to appointed officials would not include the introductory language: “Subject to the limitation of a merit system ordinance.” The obvious disadvantage of this two-paragraph alternative to Section 3-11-6(D) is that it repeats so much language. The drafters could quite reasonably prefer the course actually chosen — combining appointed officials and employees in one paragraph — simply for economy of language. The present language of Section 3-11-6(D) would certainly be superi- or to the two-paragraph alternative if the drafters felt that their use of only the term “employees” in Section 3-13-4 would make clear that merit systems would not cover appointed officials and therefore would preclude any inference that the reference to merit system ordinances in Section 3—11—6(D) meant that such ordinances covered appointed officials.
Construing the word “employees” in Section 3-13-4 as not including appointed officers conforms to common usage. “Provisions referring to ‘employees’ are generally held not to include officers.” Charles S. Rhyne, The Law of Local Government Operations § 13.2, at 220 (1980) [hereinafter “Rhyne”]; accord L.S. Tellier, Annotation, Constitutional or Statutory Provision Referring to “Employees” as Including Public Officers, 5 A.L.R.2d 415, 416 (1949) (“[T]he term ‘employee,’ or ‘workman,’ used in a constitutional, statutory, or charter provision in referring to those performing services for a state or political subdivision thereof, is seldom construed so as to include public officers unless the provision in question expressly so stipulates.”); cf. Candelaria v. Board of County Comm’rs, 77 N.M. 458, 423 P.2d 982 (1967) (distinguishing “public officer” and “workman”). This general rule specifically applies to the construction of merit system ordinances. In Sioux Falls Municipal Employees Ass’n v. City of Sioux Falls, 89 S.D. 298, 233 N.W.2d 306 (1975), the court unanimously held that a city ordinance establishing a civil service system was invalid to the extent that it attempted to include officers. State law permitted ordinances establishing civil service systems for “municipal employees, policemen, and firemen.” Id. 233 N.W.2d at 309; see Black v. Sutton, 301 Ky. 247, 191 S.W.2d 407, 409-10 (1945) (Merit system “statute should not be extended to officers under the guise that they are employees for the all too apparent purpose of perpetuating them in office.”); Cathy v. Prober, 195 A.D.2d 999, 600 N.Y.S.2d 561 (1993) (town building inspector “was not a public employee, but a public officer”); Gamblin v. Town of Bruceton, 803 S.W.2d 690, 692-93 (Tenn.Ct.App.1990) (town recorder was a public officer and not entitled to the benefit of town’s employee personnel policies established by ordinance).
In addition, there is good reason to believe that the legislature made a deliberate choice in Section 3-13-4 when it referred only to “employees,” and not appointed officials, as being covered by municipal merit system ordinances. Typically, merit system ordinances do not govern appointed officials. Professor Reynolds has written:
The merit system in effect in most municipalities involves the classification of the various positions by a local civil service commission. This commission has great discretion in classifying the various kinds of municipal employment, and its designations will be judicially overturned only upon a strong showing of arbitrary or capricious action. But certain government workers are exempt from the civil service: elected officials necessarily are exempt, and so in general are most workers who are considered officers rather than employees. Certainly, the civil service provisions are inapplicable to all officers who have a definite term of office, or who are heads of departments.
Osborne M. Reynolds, Jr., Handbook of Local Government Law § 88, at 264-65 (1982) (footnotes omitted); see 3 Charles R.P. Keating & Gail A. O’Gradney, The Law of Municipal Corporations § 12.76 (3d ed. 1990); Rhyne, supra, § 13.52, at 285. The policy behind the exemption of appointed officials from merit system ordinances is stated in Carlson v. Bratton, 681 P.2d 1333, 1336 (Wyo.1984):
[T]o force the winner of a political election to be saddled with a member of his immediate executive staff with whom he cannot work, is to block the efficiency of that political system. The governing body itself is of course a check on the powers of the mayor’s office; but the legislature recognized the necessity for the mayor to retain control over his or her policy making employees.
In sum, we conclude that Section 3-13-4 authorizes only merit system ordinances that apply to employees. Municipalities have no authority to protect appointed public officers through such ordinances.
We recognize that often there may be difficulty in determining whether a particular position is an appointed office. See Pollack v. Montoya, 55 N.M. 390, 393-94, 234 P.2d 336, 338-39 (1951) (stating test for determining whether public employment is a public office). Here, however, there is no such difficulty. NMSA 1978, Section 3-12-4 (Repl.1985), states:
A. The governing body of each municipality shall provide for the office of clerk, treasurer and police officer. The offices of clerk and treasurer may be combined and one person appointed to perform both functions.
B. The governing body may also provide for the office of an attorney.
C. The governing body may provide for deputy appointed officials who may exercise the powers granted the appointed officials.
This statute, which was also enacted by New Mexico Laws 1965, Chapter 300, expresses a legislative determination that the position of municipal clerk-treasurer is an office. Given that the clerk-treasurer often occupies the highest full-time position in a municipal government for which the mayor and council members serve only part-time, the characterization of the position as an office is appropriate. The legislature could reasonably decide that each elected administration should have the authority to select the individual in charge of the day-to-day administration of municipal government.
We conclude that Webb, as Village clerk-treasurer, was an appointed official to whom the Village had no authority to apply its merit system ordinance. Because Webb’s theory of recovery was founded on her being covered by the merit system ordinance, we' reverse the district court judgment and remand for entry of judgment in favor of the Village.
IT IS SO ORDERED.
BLACK, J., concurs.
CHAVEZ, J., dissents.
. Similarly to this case, the losing party’s argument rested in large part on a statute stating "All appointive officers of a municipality governed by a mayor and common council shall be appointed by the mayor with the approval of the council * * * subject to the provisions of the civil service applying to employees, policemen, and firemen.” Id. 233 N.W.2d at 310 (quoting S.D.Codified Laws § 9-14-3 (1967)). | [
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OPINION
RANSOM, Justice.
Steve Sanchez and Donald Sandoval appeal the dismissal with prejudice of their complaint for wrongful discharge from employment. They asserted claims in tort and breach of contract against Carl Clayton and Servicemaster West Central Management Services. The trial court dismissed the case because it believed that, through settlement of the judgment rendered in a federal civil rights suit against New Mexico Highlands University, Sanchez and Sandoval had received full satisfaction of their damages. Because we find that the Plaintiffs stated a cause of action for compensatory and punitive damages that would not constitute a double recovery, we reverse.
Facts and proceedings. Servicemaster provides management services to health care, educational, and industrial customers in the areas of physical plant operations and maintenance, housekeeping, food service, laundry and linen care, materials management, and clinical equipment maintenance. Service-master enters into contracts with its customers requiring it to provide on-site management personnel who direct, supervise, manage, and train employees of the client institution. In 1987, Servicemaster entered into such a contract with Highlands to manage its physical plant. Clayton was the on-site manager provided by Servicemaster. Sanchez was a locksmith and Sandoval a purchasing agent at the physical plant, and both were coaches for the Highlands wrestling team.
Sanchez and Sandoval complained to the Highlands Board of Regents that Service-master was being paid $240,000 per year for the same services that a Highlands employee had previously provided for only $26,000. After signing a petition requesting a formal inquiry into the reasons for the contract, Sanchez and Sandoval were fired from their jobs on the premise that their positions had been reorganized. They filed suit in federal court against the president, vice president, and personnel director of Highlands for violation of their civil rights. Sanchez v. Sanchez, 777 F.Supp. 906 (D.N.M.1991). Sanchez and Sandoval moved to join Clayton and Servicemaster as defendants, but the latter successfully resisted the motion, arguing that because they were not acting under color of state law there was no federal jurisdiction over them in the civil rights case. Clayton testified in the federal suit that, upon instruction by a Highlands attorney, he had signed a false affidavit concerning the alleged reorganization. Sanchez and Sandoval subsequently brought suit against Clayton and Servicemaster in state district court. They alleged civil conspiracy, tortious interference with their employment contract with Highlands, and breach of the contract between Servicemaster and Highlands, of which they were third-party beneficiaries.
The federal jury found that Highlands employees had violated Plaintiffs’ First Amendment right of free speech and Fifth Amendment right to due process and awarded a total of $180,000 in compensatory and $400,-000 in punitive damages. The jury had been instructed to consider the nature, extent, and duration of any emotional injuries suffered by Plaintiffs and any emotional distress, anxiety, pain and suffering, or mental anguish experienced in the past and reasonably certain to be experienced in the future, as well as the value of lost earnings and the present cash value of earning capacities reasonably certain to be lost in the future (and in Sandoval’s case, the present value of his retirement benefits). The court also awarded $170,000 in attorney’s fees. Highlands appealed from the judgment and Plaintiffs cross-appealed from the court’s denial of prejudgment interest. In June 1992, Highlands, Sanchez, and Sandoval settled the case for $700,000. They executed a release of judgment wherein Sanchez and Sandoval insisted on a clause that stated:
[T]his release ... is not intended to release or absolve Servicemaster ... or Carl Clayton from any liability ... or damages ... arising from the termination of plaintiffs and presently pending in the case of [Sanchez v. Clayton.].
Following the settlement in the federal case, Clayton and Servicemaster moved for and were granted summary judgment in the state case. The trial court concluded that “the judgment obtained by Sanchez and Sandoval in the federal court against the University Defendants was paid” and that dismissal of the complaint with prejudice would be appropriate under the principle against double recovery set forth in Vaca v. Whitaker, 86 N.M. 79, 83, 519 P.2d 315, 319 (Ct.App.1974), which the district court summarized as follows:
A plaintiff is entitled to but one compensation for his loss and satisfaction of his claim prevents its further enforcement. In effect, where payment of the judgment in full is made by the judgment debtor, the plaintiff is barred from further action against another who is liable for the same damages.
Plaintiffs’ counsel conceded at oral argument before this Court that, although the theory of recovery is different, the Plaintiffs are seeking the same compensatory damages in the state action as were awarded in the federal action.
Neither McConal nor Vaca resolve the issue in this case. To the extent a judgment for damages is paid by one or more of the judgment debtors, we agree that a claim for the same damages against any other person is extinguished regardless of the theories upon which the respective claims for relief are based. Conversely, a party’s liability for proportionate fault is unaffected by the injured party’s settlement with others who are severally liable for their own proportionate fault. Wilson v. Galt, 100 N.M. 227, 232, 668 P.2d 1104, 1109 (Ct.App.), cert. denied, 100 N.M. 192, 668 P.2d 308 (1983). Liability for proportionate fault is a liability for a distinct part of the damages and not for the same damages that may be apportioned to others. With respect to tortfeasors who are jointly and severally liable, a settlement with one tortfeasor reduces the claim against other tortfeasors in the amount of the consideration paid or in any greater amount as may be provided in the release. NMSA 1978, § 41-3-4 (Repl.Pamp.1989) (stating effect of release under the Uniform Contribution Among Tortfeasors Act). In Gallegos v. Citizens Insurance Agency, 108 N.M. 722, 730, 779 P.2d 99, 107 (1989), we said,
Regarding joint contract liability, we likewise do not reach or decide here whether we would follow the common law that a release of one joint obligor on a contract operates to release all other obligors or whether we would adopt the modern view that where two or more obligors are jointly liable for breach, a release of one does not necessarily release the other; whether the other is released depends upon the intent of the parties and whether the injured party has received full satisfaction.
Although argued as being pivotal to this ease, we believe McConal Aviation v. Commercial Aviation Insurance Co., 110 N.M. 697, 799 P.2d 133 (1990), is inapplicable. The Court in McConal did not apply any of the above-described principles, apparently because the Court determined that an insurance broker making a prejudgment settlement of a negligence claim was neither a joint tortfeasor nor a joint obligor under a contract.
In McConal an insurance broker agreed to obtain a property damage policy for plaintiffs aircraft. Accordingly, an insurance company issued a binder to plaintiff insuring his aircraft for one month and requested that plaintiff fill out and submit an application for insurance before the binder expired. Plaintiff completed the paperwork and forwarded it to the broker. The broker failed to forward the paperwork to the insurance company. The aircraft crashed. The insurance company denied liability to the plaintiff, pointing the finger at the broker. The broker claimed that it was not responsible and that, at least by implication, it had not failed in its duty to procure property damage insurance from the insurer. Id. at 698, 799 P.2d at 137. Plaintiff sued the broker and the insurance company, and before trial he reached a $40,000 settlement agreement with the broker. At trial the jury returned a verdict of $65,000 against the insurance company. The insurance company filed a motion seeking to credit the judgment with the $40,-000 settlement with the broker. The trial court denied the insurance company’s motion and the insurance company appealed. Id. at 698-99, 799 P.2d at 137-38.
On appeal, a plurality of this Court concluded that had McConal’s claim against the broker also gone to the jury it well may have awarded him additional damages. Id. at 699, 799 P.2d at 138. Based on this conclusion, the plurality relied on principles of collateral source and the encouragement of settlements to deny an offset of the broker’s settlement from the judgment awarded against the insurer. Id. at 700-01, 799 P.2d at 136-37. In a special concurrence, Justice Montgomery, disagreeing with the plurality’s conclusion, stated:
The plurality speculates that, had the claim against [the broker] gone to the jury it might well have awarded McConal additional damages. However, there is no indication that the jury would have done so. McConal sued [the insurance company] for the costs of repairing its airplane, transportation and storage charges, and interest on a loan. The jury’s verdict awarded McConal only slightly more than the requested damages. Although McConal refers in its brief to other amounts which it might have claimed from [the broker], we are pointed to nothing in the record indicating that McConal’s loss was other than the single, indivisible, unitary loss which [the insurance company] alleges it was.
Id. at 701-02, 799 P.2d at 137-38 (Montgomery, J., specially concurring).
It is apparent that the two member plurality finessed the “same damages” distinction in denying the offset, but not Justice Montgomery:
Under these circumstances it does not seem unreasonable to require the insurer ... to pay what it contracted to pay and to allow the insured ... to keep what the [broker] ... voluntarily contributed in order to settle its alleged [tort] liability.
Under the policy of the collateral source rule — that the “windfall” is to be allocated to the innocent claimant rather than the arguably culpable defendant who a jury has determined breached its contract — I concur in giving the plaintiff the “duplicate recovery” realized in this case.
Id. at 703-04, 799 P.2d at 139-40. Thus, the McConal Court, having been unable to concur on the factual basis for a “same damages” rationale, did not rule on the applicability or effect of that doctrine. Consequently, we understand McConal to hold that the collateral source rule applies to the prejudgment settlement of a claim involving neither a joint tortfeasor nor a joint obligor under a contract.
Defendants urge application of the principle that “when a judgment is based on actual litigation of the measure of a loss, and the judgment is thereafter paid in full, the injured party has no enforceable claim against any other obligor who is responsible for the same loss.” Restatement (Second) of Judgments § 50 cmt. d (1982); see also Vaca, 86 N.M. at 83, 519 P.2d at 319. While we agree that this is a sound principle, it applies only to an award of compensatory damages (“the measure of a loss”), and then only to the extent that a judgment is paid. Punitive damages do not measure a loss to the plaintiff, but rather punish the tortfeasor for wrongdoing and serve as a deterrent. See SCRA 1986, 13-1827 (Repl.Pamp.1991) (jury instruction defining purposes of punitive damages); Sanchez v. Dale Bellamah Homes of New Mexico, Inc., 76 N.M. 526, 531, 417 P.2d 25, 29 (1966) (stating that the purpose of punitive damage recovery is punishment of the tortfeasor, not compensation of the victim). Servicemaster states that “[a]ppellants litigated their losses and received a judgment of compensatory and punitive damages, which has been satisfied,” This statement ignores the principle, however, that punitive damages against two or more defendants must be separately determined, see Gallegos, 108 N.M. at 728, 779 P.2d at 105. The question of punitive damages against Defendants has not been litigated.
An award for punitive damages must be supported by an established cause of action. Defendants argue that, under Gonzales v. Sansoy, 103 N.M. 127, 129, 703 P.2d 904, 906 (Ct.App.1984), “[a]n award of punitive damages must be supported by an award of compensatory damages.” Defendants also assert that an Illinois case holds that a plaintiff who has been fully compensated for actual damages cannot maintain an action solely for punitive damages against other defendants. See Thrall Car Mfg. Co. v. Lindquist, 145 Ill.App.3d 712, 99 Ill.Dec. 397, 401, 495 N.E.2d 1132, 1136 (Ct.1986). Thrall may be distinguished because, in that case, the court first held that the plaintiff had no legal basis for a cause of action against the defendants. Id. 99 Ill.Dec. at 400-01, 495 N.E.2d at 1135-36. In dicta, the court stated that the plaintiff had been compensated fully for its actual damages by a defendant against whom a legal cause of action did lie, which was an additional reason why the cause of action for punitive damages alone could not stand. Id. 99 Ill.Dec. at 401, 495 N.E.2d at 1136. Although Thrall did not state so explicitly, we believe that the actual reason no cause of action for punitive damages could be pursued in that case was because of the court’s first holding — the plaintiff could not state a cause of action against the defendant.
We believe that
[t]he most reasonable interpretation of the supposed actual damages requirement is that it is really a defective formulation of an entirely different idea — that the plaintiff must establish a cause of action before punitive damages can be awarded---Once the facts accepted by the trier show a valid cause of action, however, there seems no reason to deny punitive damages merely because the plaintiffs damages are not pecuniary, or because the jury awards nominal damages, or because it lumps all damages under the punitive label. Indeed, if the defendant’s conduct otherwise warrants punitive liability, the need for punishment or deterrence may be increased by reason of the very fact that the defendant will have no liability for compensatory damages.
1 Dan B. Dobbs, Law of Remedies § 3.11(10), at 515-16 (2d ed. 1993). We have followed this general principle in New Mexico by allowing punitive damages even when supported only by an award of nominal damages. See Green Tree Acceptance, Inc. v. Layton, 108 N.M. 171, 174, 769 P.2d 84, 87 (1989) (“Punitive damages are to be awarded when actual or nominal damages are inadequate to satisfy the wrong committed.” (Emphasis added.)); Crawford v. Taylor, 58 N.M. 340, 343, 270 P.2d 978, 979 (1954) (allowing a cause of action only requesting punitive damages because “the alleged malicious interference by defendant with plaintiffs right ... would sustain an award to plaintiff of nominal damages”); Hagerman Irrigation Co. v. McMurry, 16 N.M. 172, 183-84, 113 P. 823, 826 (1911) (holding that plaintiff who could not prove actual damages nonetheless could be awarded nominal and punitive damages). “Nominal damages are a trivial sum of money awarded to a litigant who has established a cause of action but has not established that he is entitled to compensatory damages.” Restatement (Second) of Torts § 907 (1979) (emphasis added). The common thread in Crawford and Hagerman is that both plaintiffs established a cause of action against the defendant for which they were entitled to punitive damages even though they were not entitled to compensatory damages.
The key to determining whether punitive damages may be awarded absent actual or compensatory damages, therefore, is the nature of the case. See Ault v. Lohr, 538 So.2d 454, 457 (Fla.1989) (Ehrlich, J., specially concurring) (stating that because the tort was battery, which did not require proof of actual damages, “punitive damages could properly be awarded even absent an award of compensatory damages”). In actions based on negligence, neither nominal nor punitive damages may be awarded without proof of actual damages because liability does not attach to negligent acts that do not result in actual harm or damage. See, e.g., Jensen v. Allen, 63 N.M. 407, 409, 320 P.2d 1016, 1017 (1958) (stating in negligence action that without damage, there is no cause of action); Restatement (Second) of Torts § 907 cmt. a (“If actual damage is necessary to the cause of action, as in negligence, nominal damages are not awarded.”).
In suits based on intentional torts, however, no allegation of actual damages is necessary to establish a cause of action. See, e.g., Ruiz v. Varan, 110 N.M. 478, 483-84, 797 P.2d 267, 272-73 (1990) (affirming damages award of $5000 for tort of abuse of process although no actual damages had been proved). In such cases, the jury may award nominal damages to acknowledge that the cause of action was established and punitive damages to punish the wrongdoer for violating the rights of the victim. See Ruiz, 110 N.M. at 483, 797 P.2d at 272 (“The award of nominal damages is made as a judicial declaration that the plaintiffs right has been violated.” (quoting Charles T. McCormick, Handbook on the Law of Damages § 20 at 85 (1935)); cf. Hagerman, 16 N.M. at 183-84, 113 P. at 826 (acknowledging that defendant was liable for wrongfully converting plaintiffs water, Court remanded for entry of judgment awarding one dollar in nominal damages and stating that punitive damages would properly have been submitted to the jury had it been a jury trial).
We overrule Christman v. Voyer, 92 N.M. 772, 595 P.2d 410 (Ct.App.1979). There, the Court of Appeals, despite acknowledging that this Court has held that punitive damages may be supported by an award of nominal damages, declared (without further analysis) that a plaintiff also had to establish actual damages in order to recover punitive damages in a case alleging tortious interference with contract. Id. at 775, 595 P.2d at 413.
The determinative issue in this case is whether Plaintiffs can state a cause of action under which they would be entitled to compensatory or nominal damages against Defendants. Whether the prior judgment for compensatory damages may have been paid in full is not determinative in deciding that punitive damages may be awarded against Defendants. All the law requires is that “[t]he conduct giving rise to the punitive damages claim must be the same conduct for which actual or compensatory [or nominal] damages were allowed.” Gonzales, 103 N.M. at 129, 703 P.2d at 906 (quoting Traylor v. Wachter, 227 Kan. 221, 607 P.2d 1094, 1098 (1980)) (emphasis added). In another case, the Court of Appeals stated correctly that even after compensatory damages have been fully satisfied by the settlement of a judgment, a plaintiff seeking punitive damages against a joint tortfeasor may bring suit to recover those damages in a separate action after dismissal of that joint tortfeasor from the original suit has been reversed on appeal. Sierra Blanca Sales Co. v. Newco Indus., 88 N.M. 472, 474-75, 542 P.2d 52, 54-55 (Ct.App.1975), rev’d on other grounds, Fortuna Corp. v. Sierra Blanca Sales Co., 89 N.M. 187, 189, 548 P.2d 865, 867 (1976) (reversing because the issue of punitive damages was otherwise improperly before the district court).
Collateral estoppel has limited effect. Principles of collateral estoppel have limited application in the type of successive litigation contemplated here. The defendant in successive litigation certainly would not be precluded from contesting whether plaintiff has stated or proved a claim for relief. The plaintiff likely would be estopped from the recovery of compensatory damages greater than awarded in, but remaining unpaid from, a prior judgment, while the defendant would not be precluded from contesting damages. If the jury is not instructed to find compensatory damages (so that the court may determine the amount of any damages remaining unpaid from a prior judgment, or so that the jury may determine the relative amount of punitive damages), then there must be a stipulated instruction to the jury as to the actual damages to which any punitive damages award should relate. See Flores v. Baca, 117 N.M. 306, 315, 871 P.2d 962, 971 (1994) (discussing need to instruct jury that punitive damages must be reasonably related to compensatory damages awarded by other jury).
Proportion of compensatory damages not paid in settlement may be recovered. Plaintiffs argue that the shortfall between the judgment rendered and the settlement received should be allocated to the compensatory damages. The plaintiff settling the judgment, however, has an obligation to establish what compensatory damages he is foregoing in the settlement if he later wishes to show a right to recover compensatory damages in successive litigation. In the case at bar, because Plaintiffs specifically reserved their cause of action against Defendants, we cannot presume that they intended to extinguish by settlement what they had reserved. We find that the fairest resolution is to prorate the $50,000 difference between the $750,000 judgment and the $700,000 settlement. Plaintiffs have received a 700/750th part of the compensatory award of $180,000. Plaintiffs, therefore, may recover a 50/750th share (or up to $12,000) in compensatory damages from Defendants if they prove that Defendants are liable for compensatory damages.
Conclusion. We reverse the judgment of the district court and remand for further proceedings consistent with this opinion. If Plaintiffs are successful in establishing a cause of action for either nominal or compensatory damages, they may recover unpaid compensatory damages and also may recover punitive damages.
IT IS SO ORDERED.
MONTGOMERY, C.J., and FROST, J., concur. | [
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OPINION
FROST, Justice.
Defendant-Appellant Michael Bankert drove with his common-law wife Kathy Christison from their home in Cortez, Colorado, to Farmington, New Mexico in order to buy cocaine for resale. Convinced they were not receiving adequate value for their money, Bankert shot and killed Robert Martin, a participant in the transaction. Bankert was convicted of felony murder, trafficking cocaine by possession with intent to distribute, and conspiracy to traffic in cocaine.
Six issues are raised on appeal: (1) Insufficient evidence supported the conviction for constructive possession of cocaine; (2) cocaine cannot be possessed in an unconsummated drug deal since the buyer and seller cannot both simultaneously possess; (8) the offense of trafficking a controlled substance by possession with intent to distribute cannot be the predicate felony to a felony murder conviction because it is not an inherently dangerous crime; (4) since provocation was not an issue in this case, the jury was improperly instructed to address a provocation element for second degree murder; (5) no evidence supported the conviction for conspiracy; and (6) the prosecution prejudicially linked Bankert with an already convicted participant in the crime. We affirm all convictions.
FACTS
Michelle Hall, a reputed drug abuser, left Farmington, New Mexico around 3:00 p.m. on August 8, 1991, on a motorcycle to visit her friends, Bankert and Christison, in Cortez, Colorado. After the three ingested cocaine inside the couple’s trailer-home, Bankert stepped outside. The door was open and he was probably able to hear the ensuing conversation between the two women. Christison asked Hall to help find two eight-balls of cocaine for $450. An eight-ball is three-and-one-half grams of cocaine. A single eight-ball is consistent with personal use, but Christison indicated she wanted enough to sell and make her money back. She implied she would give some cocaine to Hall for her efforts.
Later that evening, at the home of a friend in Farmington, Hall asked Bob Martin about obtaining the two eight-balls. He told her to speak to another person who was present, Chester Smith. Smith, an African-American, was a known drug dealer in Farmington. Smith, however, was reluctant to deal with people from out-of-state. Hall offered to act as a go-between.
Later the same evening, after phoning for directions to the home, Bankert and Christi-son arrived in Bankert’s car. Christison gave $450 to Hall who almost immediately passed the money to Smith.
Smith, Hall, and Martin decided to go to the latter’s house to make the exchange, leaving Bankert and Christison behind. At Martin’s house, Smith revealed he would sell the two eight-balls for $500 rather than $450. He removed some of the cocaine to compensate for the $50 shortfall. Though she knew Christison would be upset, Hall accepted the reduced amount.
About an hour after leaving, Hall returned and gave the cocaine to Christison. The two women examined the drug inside the friend’s home and Christison remarked, “This doesn’t look like two eight-balls.” Hall explained the change in the deal. Eventually Smith, Hall, and Christison were inside using Christison’s scales to weigh the drug. Outside, Bankert complained that he could not understand what was taking them so long. Eventually he entered the trailer, saying to Christison, “What the fuck’s taking so long? Let’s go.”
As they left the home, Christison was very upset, almost crying. Bankert said he was pissed and this was bullshit because it was taking so long. Christison told him to go ahead and get mad, there was nothing he could do about it. They then engaged in a private inaudible discussion.
Martin suggested that everyone go to his house to straighten out the matter. Bankert, with Christison driving, and Hall giving directions, left in Bankert’s car for Martin’s house. On the way Christison and Bankert discussed the drug deal. Bankert complained, “I’m tired of this bullshit already. I’m not gonna be ripped off by a nigger.” He went on: “Something better get figured out.” Christison said, “We can get this straightened out.” They stopped at the drive-up window of a liquor store to buy beer. “I’m not paying for it,” said Bankert. “We’ve shelled out enough money already.”
Shortly before midnight, August 8, 1991, the group in the Bankert’s car arrived at Martin’s house. No one else had yet arrived. While the others sat outside the car, Bankert moved to the driver’s seat and sat sideways, with the door open, and his feet outside the car. Unknown to the others, he pulled a .22 caliber automatic pistol from a holster under the driver’s seat.
Soon Smith and Martin arrived and everyone went into the house. Inside was a portable bar separating the kitchen from the dining area which in turn seems to have adjoined a living room. Bankert sat on a couch in the living room while Christison weighed the cocaine on her scales. Though the exact sequence is unclear, at various times Smith, Hall and Martin approached the bar to discuss the deal. Christison complained, “It’s still only five and three-quarters [grams]. How am I supposed to make any money if I’m paying $100 a gram?”; or she may have said, “How are we supposed to make any money by paying $100 a gram?” (Emphasis added.)
Bankert arose from the couch and entered the dining room, sitting on the edge of a chair near the bar. It was now shortly after midnight. Smith took the $450 and dumped it on the scale as if to offer it back. Martin shouted, “Well, what the fuck do you want? Your money? Your money back?”
Bankert jumped up and grabbed Martin around the neck from behind. “I want it all!” he exclaimed. “I want seven [grams]! There’s supposed to be seven! I want seven!” He pulled a gun from his waistband, under his shirt, and held it to Martin’s head behind the right ear. Hall ran up to him pleading, “This is Bob’s house. Bob’s my friend. Leave him alone.” Bankert retorted, “Fuck you, Michelle. I’ll shoot you.” He then shot Martin in the head. When Martin fell, he shot him again in the face.
Amid the screaming and panic Bankert stepped over Martin’s body, and approached Smith threatening, “Are you ready to die, nigger?” Smith replied, “I don’t want to die, I don’t want to die, man.” The gun fired as they struggled and Smith eventually wrested it from Bankert’s hand. Bankert slumped to the floor where he remained until he was arrested soon thereafter.
Bankert was tried and convicted of felony murder, trafficking in cocaine by possession with intent to distribute, and conspiracy to traffic by possession with intent to distribute. He was given a sentence of life imprisonment plus nine years.
STANDARD OF REVIEW
Our task is to review the record and establish whether the evidence is sufficient to support the criminal conviction of Bankert. In reviewing a claim of insufficient evidence, this Court will “view the evidence in the light most favorable to supporting the verdict and resolve all conflicts and indulge all inferences in favor of upholding the verdict.” State v. Hernandez, 115 N.M. 6, 26, 846 P.2d 312, 332 (1993). We may not weigh the evidence or substitute our judgment for that of the jury. State v. Lankford, 92 N.M. 1, 2, 582 P.2d 378, 379 (1978).
The test is “whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction.” State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988) (citing State v. Montoya, 101 N.M. 424, 425, 684 P.2d 510, 511 (1984)); see also Jackson v. Virginia, 443 U.S. 307, 307, 99 S.Ct. 2781, 2783, 61 L.Ed.2d 560 (1979) (holding that “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt”); State v. Garcia, 114 N.M. 269, 837 P.2d 862 (1992) (same). A conviction will be upheld if based upon a logical inference from circumstantial evidence. State v. Baca, 111 N.M. 270, 276, 804 P.2d 1089, 1095 (Ct.App.1990) (citing State v. Brown, 100 N.M. 726, 728, 676 P.2d 253, 255 (1984)), cert. denied, 111 N.M. 164, 803 P.2d 253 (1991). A conclusion based on mere conjecture or surmise will not support a conviction. State v. Tovar, 98 N.M. 655, 657, 651 P.2d 1299, 1301 (1982) (citing State v. Romero, 67 N.M. 82, 84, 352 P.2d 781, 782 (1960)); see also SCRA 1986, 14-6006 (Uniform Jury Instruction stating that “verdict should not be based on speculation, guess or conjecture”). The circumstantial evidence must be incompatible with any rational theory of the defendant’s innocence. State v. Vigil, 110 N.M. 254, 256, 794 P.2d 728, 730 (1990). However, we do not dismiss all reasonable inferences supporting the verdict simply because some of the evidence may support a contrary verdict. Id.
ISSUE ONE — POSSESSION
Bankert claims that there is insufficient evidence that he constructively possessed the cocaine and that his conviction for trafficking by possession with intent to distribute, in violation of NMSA 1978, Section 30-31-20(A)(3) (Repl.Pamp.1989), must be reversed. In order to reach a conviction for this offense, the jury must find proof of four elements outlined in the Uniform Jury Instruction, SCRA 1986, 14-3111. There is no controversy that under SCRA 14-3111(2), Bankert reasonably knew cocaine was present, and that under SCRA 14-3111(4), all the acts for which he was convicted took place in New Mexico on August 8 and 9, 1991. The issues in this case center on SCRA 14^3111(1), whether Bankert was at any time in possession of the cocaine, and SCRA 14-3111(3), whether he intended to transfer the drug to another.
No evidence was presented that Bankert ever physically touched the cocaine. Nor does it seem that he ever became directly involved in negotiating the deal until the moment when he jumped up and held the gun to Martin’s head. On the other hand, there is ample evidence that Christison, who was Bankert’s companion on this business venture, handled the cocaine several times, acted as principal negotiator, and intended to recoup some of her money by selling some of the cocaine to others. The State’s case against Bankert rests on an accessory theory under NMSA 1978, Section 30-1-13 (Repl. Pamp.1984): Bankert acted as Christison’s accomplice. The distinction between a principal and an accessory to a crime has long been abolished in New Mexico by the legislature and the courts. State v. Wall, 94 N.M. 169, 171, 608 P.2d 145, 147 (1980) (citing State v. Nance, 77 N.M. 39, 45-47, 419 P.2d 242, 246-47 (1966), cert. denied, 386 U.S. 1039, 87 S.Ct. 1495, 18 L.Ed.2d 605 (1967)). If the evidence shows that Christison engaged in trafficking by possession with intent to distribute a narcotic drug, and if Bankert was her accomplice, then the predicate felony is established and Bankert’s conviction will stand.
The elements of accomplice liability are listed in the Uniform Jury Instruction SCRA 1986, 14-2822:
The defendant may be found guilty of a crime even though he himself did not do the acts constituting the crime, if the state proves to your satisfaction beyond a reasonable doubt that:
1. The defendant intended that the crime be committed;
2. The crime was committed;
3. The defendant helped,, encouraged or caused the crime to be committed.
Christison’s conduct on August 8 and 9 unequivocally points to the crime of possession with intent to distribute cocaine. In the afternoon of August 8, Christison and Hall hatched a conspiracy to obtain the cocaine. We may infer from the evidence that Christi-son intended to distribute the drug after purchasing it. State v. Muniz, 110 N.M. 799, 800, 800 P.2d 734, 735 (Ct.App.) (“Intent may be proved by inference from the surrounding facts and circumstances____”), cert. denied, 110 N.M. 749, 799 P.2d 1121 (1990). Christi-son directly expressed this intention by saying she wanted to obtain enough to make her money back. Testimony by law enforcement experts was offered to show that two eight-balls of cocaine are more than a person would buy for personal use. See, e.g., State v. Hubbard, 113 N.M. 538, 540, 828 P.2d 971, 973 (Ct.App.), cert. denied, 113 N.M. 352, 826 P.2d 573 (1992); see also United States v. Bell, 892 F.2d 959, 969 (10th Cir.1989), cert. denied, 496 U.S. 925, 110 S.Ct. 2618, 110 L.Ed.2d 639 (1990). Added to this was the presence of cutting agents and scales in Christison’s back pack. See State v. Bejar, 101 N.M. 190, 191-92, 679 P.2d 1288, 1289-90 (Ct.App.), cert. denied, 101 N.M. 189, 679 P.2d 1287 (1984). Finally, Christison suggested that she would give some of the cocaine to Hall in exchange for her efforts in obtaining the drug, and this constituted the intent to distribute a controlled substance in violation of Section 30-31-20(A)(3).
The conspiracy to possess continued when Christison and Bankert arrived in Farming-ton. The cocaine, paid for by Christison, was transferred to Hall. At this point, Christison took constructive possession of the drug. Even before physically handling the cocaine, Christison was in a position to take it from Hall and drive with it back to Colorado. State v. Carr, 95 N.M. 755, 764, 626 P.2d 292, 301 (Ct.App.) (“Constructive possession requires no more than knowledge of the narcotic and control over it....”), cert. denied, 95 N.M. 669, 625 P.2d 1186, cert. denied, 454 U.S. 853, 102 S.Ct. 298, 70 L.Ed.2d 145 (1981).
When Christison used her scales to weigh the drug, she took physical possession and control of it. At Martin’s house, she reiterated her intention to sell with her remark, “How am I supposed to make any money if I’m paying $100 a gram?”; or in a version of the statement which directly implicates Bankert: “How are we supposed to make any money by paying $100 a gram?” (Emphasis added.) The fact that a deal had been struck — that money was exchanged for cocaine — was evidenced by Smith’s offer to return the money and rescind the deal by dumping the $450 on the scales. Martin made this idea explicit: “Well, what the fuck do you want? Your money? Your money back?”
Considering the first and third of the three elements in SCRA 14-2822, the facts show that Bankert emphatically wanted Christison to take possession of the cocaine and helped her do so. It is not controlling that he never touched the cocaine and was often not in the same room where the drug deal took place.
The evidence of aiding and abetting may be as broad and varied as are the means of communicating thought from one individual to another; by acts, conduct, words, signs, or by any means sufficient to incite, encourage or instigate commission of the offense or calculated to make known that commission of an offense already undertaken has the aider’s support or approval. (Citations omitted.)
State v. Ochoa, 41 N.M. 589, 599, 72 P.2d 609, 615 (1937), quoted in State v. Salazar, 78 N.M. 329, 331, 431 P.2d 62, 64 (1967).
There is ample evidence to demonstrate Bankert’s accomplice liability in Christison’s crime. At the very least the evidence indicates that he acted as a financier of the endeavor. His comments show that he did have some control or interest in the money used for the illegal purchase. At the drive-up window of the liquor store, he complained, “I’m not paying for it. We’ve shelled out enough money already.” (Emphasis added.) Additionally, he provided transportation for the venture. He owned the car in which he and Christison made the trip from Colorado to New Mexico.
From Bankert’s fretting and animosity and impatience — especially in the context of his later words and actions — the jury could assume he very badly wanted the deal to take place. He was enraged that the deal was taking too long, he expressed concern that he was being swindled. He threatened, “Something better get figured out,” and Christison, acknowledging their mutual interest, responded, “We can get this straightened out.” Bankert proclaimed his fierce desire by shouting, “I want it all!” In the consummate attempt to help Christison close the drug deal, he enforced his demand by shooting Martin in the head.
By acting as Christison’s accomplice, Bankert took constructive possession of the cocaine with the intention of distributing it. See State v. Bauske, 86 N.M. 484, 485-86, 525 P.2d 411, 412-13 (Ct.App.1974). No physical contact with the drug was necessary. See SCRA 1986, 14-3130 (“Even if the substance is not in his physical presence, he is in possession if he knows where it is, and he exercises control over it.”). Constructive possession is evinced by the fact that Bankert knew of the presence of the cocaine, and he forcibly, with a gun, exerted dominion and control over the substance. State v. Sizemore, 115 N.M. 753, 756, 858 P.2d 420, 423 (Ct.App.), cert. denied, 115 N.M. 709, 858 P.2d 85 (1993); Carr, 95 N.M. at 764, 626 P.2d at 301. The predicate felony to Bankert’s conviction of felony murder, thus stands.
ISSUE TWO — SIMULTANEOUS POSSESSION OF COCAINE BY BUYER AND SELLER
Bankert also claims that jury instruction number ten, stating that “[t]wo or more people can have possession of a substance at the same time,” and the prosecutor’s related closing argument thwarted a jury determination of the possession element. He points out that no drug deal was ever consummated. “It is axiomatic,” he says, “that during a drug transaction, a buyer and seller cannot each possess a controlled substance simultaneously.”
At most, Bankert avows he is guilty of attempted possession. See State v. Lopez, 100 N.M. 291, 292, 669 P.2d 1086, 1087 (1983); State v. Curry, 107 N.M. 133, 135, 753 P.2d 1321, 1323 (Ct.App.) (holding that “the attempt to possess the cocaine can be inferred from defendant’s attempt to pick up the package”), cert. denied, 107 N.M. 132, 753 P.2d 1320 (1988). Though he made the attempt, he never had the power of dominion and control over the substance, see Sizemore, 115 N.M. at 756, 858 P.2d at 423. The threshold of a completed offense was never crossed. Thus, he argues, his felony murder conviction must fail, because the predicate felony — trafficking in cocaine — cannot be established.
The rules that govern commercial transactions do not apply to an illegal transaction. However, by proposing the “axiom” that a buyer and seller cannot simultaneously possess cocaine, Bankert is asserting a defense based on commercial contract theory. He suggests that both parties cannot have “legal possession of the same substance at the same time.” But the law does not recognize contractual ownership of cocaine and so the concepts of “buyer” and “seller” are not operative. A contract which contravenes a rule of law is unenforceable.. Acacia Mut. Life Ins. Co. v. American Gen. Life Ins. Co., 111 N.M. 106, 107, 802 P.2d 11, 12 (1990) (citing General Elec. Credit Corp. v. Tidenberg, 78 N.M. 59, 62, 428 P.2d 33, 36 (1967)). The concepts of “buyer” and “seller” have meaning in the context of a drug deal only as indications of the direction of transfer.
In a commercial transaction, during preliminary negotiations, there can be no conclusive bargain. See Restatement (Second) of Contracts § 26 (1981). But in a drug deal, both buyer and seller can exert some control over the substance during negotiations. See Bauske, 86 N.M. at 485-86, 525 P.2d at 412-13 (citing People v. Francis, 71 Cal.2d 66, 75 Cal.Rptr. 199, 202, 450 P.2d 591, 594 (1969) (in bank)). By willingly exercising control at any point during the transaction, the parties have committed the illegal act of possession. The act cannot be undone, even if the physical transference of the drug later becomes impossible. In this case Smith provided the cocaine, Christison weighed it in her scales, and Bankert provided funds and transportation, and tried to enforce the sale with a gun. All three simultaneously took some control over the disposition of the cocaine; all three simultaneously were in possession.
ISSUE THREE — THE PREDICATE FELONY WAS INHERENTLY DANGEROUS
NMSA 1978, Section 30-2-l(A)(2) (Repl.Pamp.1984) broadly sets forth the con cept of felony murder: “Murder in the first degree is the killing of one human being by another without lawful justification or excuse, by any of the means with which death may be caused ... in the commission of or attempt to commit any felony----” Bankert asserts that the felony of trafficking and possession of cocaine does not present the requisite mens rea for a conviction of first degree murder; it is not an inherently dangerous crime. This concern was addressed in State v. Harrison, 90 N.M. 439, 564 P.2d 1321 (1977). “In felony murder cases where the felony is a first-degree felony such a presumption is appropriate, but not where the felony is of a lesser degree.” Id. at 442, 564 P.2d at 1324. Harrison adopted the “natural and probable consequences test.” If the felony is one that “is inherently or foreseeably dangerous to human life,” then the mens rea is sufficient for a conviction of felony murder. Id. This standard was further explained in State v. Ortega, 112 N.M. 554, 563, 817 P.2d 1196, 1205 (1991), which declared, “[Tjhere must be proof that the defendant intended to kill (or was knowingly heedless that death might result from his conduct).” (Emphasis omitted.) In his brief, Bankert all but ignored these well established standards.
In the present case the jury was instructed that it could find Bankert guilty of felony murder only if it found “[t]he defendant intended to cause the death of Robert Martin.” It is irrelevant that, in the abstract, trafficking a controlled substance by possession with intent to distribute is not necessarily a dangerous crime. The standard applied to Bankert was that, while engaging in that particular felony, and as a consequence of that felony, he intended to kill Martin.
The conclusion that Bankert, before pulling the trigger, sought to kill Martin is strongly supported by the evidence. We may rely on inference from the facts to establish intent. Muniz, 110 N.M. at 800, 800 P.2d at 735. Thé murder was predicated by Bankert’s mounting rage. He armed himself with the gun that he kept under the driver’s seat of his car. At the very least he was, at this point, planning the threat, if not the use, of deadly force. Martin, acting as the negotiator on behalf of Smith, was the logical object of Bankert’s rage when he demanded to know if they wanted their money back. Saying, “I want it all!” Bankert jumped up and grabbed Martin around the neck so he could not speak. He intended to use force to close the deal, even after Hall attempted to stop him saying, “This is Bob’s house. Bob’s my friend. Leave him alone.” Bankert’s response was an express intent to kill: “I’ll shoot you,” implying, “I’ll shoot you instead of Martin.” He then pulled the trigger, an act preceded by a willful decision. The shot to the head at point blank range and again in the face was meant to kill. No mere warning or injury was intended. He then threatened Smith, asking him if he was ready to die; Bankert still planned murder. Only after being disarmed in a violent struggle did Bankert give up this plan. The conviction for the intentional killing of Martin is strongly supported by the facts.
ISSUE FOUR — JURY INSTRUCTION ON SECOND DEGREE MURDER
In his fourth contention, Bankert says that the jury instruction setting forth the elements of second degree murder erroneously included a provocation element which was inherently confusing to the jury. Furthermore, the prosecution’s closing argument that a finding of provocation would be illogical in this case was prejudicial. The instruction from SCRA 1986, 14-210, that second degree murder could be found only if “[t]he defendant did not act as a result of sufficient provocation,” (footnote omitted) is appropriate only in cases where provocation is an issue. Id., Use Note 1.
As Bankert admits, this error was not presented below. The parties were ordered by the trial judge to submit a complete set of jury instructions more than a month before the trial began. Bankert never objected to this instruction before the trial. It appears from the transcript that, at the time the judge read this instruction, he called the parties to the bench to discuss the appropriateness of the provocation language. Again, Bankert did not object.
Since this issue was not preserved below, the only mode of review open to Ban kert is that the instruction constituted fundamental error. SCRA 1986, 12-216(B)(2) (Repl.Pamp.1992); State v. Escamilla, 107 N.M. 510, 515, 760 P.2d 1276, 1281 (1988); State v. Lucero, 70 N.M. 268, 272, 372 P.2d 837, 840 (1962) (“Where substantial justice has been done, the parties must have taken and preserved exceptions in the lower court before this court will notice them on appeal.”). Because we find the evidence overwhelmingly supports the conviction for intentional killing during the commission of a felony, even if the provocation instruction was inappropriate, elimination of that instruction would not have altered the jury’s determination. We find in this jury instruction no miscarriage of justice, no deprivation of any rights essential to Bankert’s defense, and nothing to “shock the conscience if the conviction were permitted to stand.” State v. Jett, 111 N.M. 309, 314, 805 P.2d 78, 83 (1991). Furthermore, the prosecution’s closing argument was a fair assessment of the evidence on this issue. See State v. Chamberlain, 112 N.M. 723, 730, 819 P.2d 673, 680 (1991). There was no fundamental error and Bankert waived further review of this issue by failing to preserve it below. State v. Osborne, 111 N.M. 654, 661, 808 P.2d 624, 631 (1991).
ISSUE FIVE — EVIDENCE OF CONSPIRACY
Bankert’s fifth point is that the State presented insufficient evidence to support a conviction for conspiracy to possess a controlled substance with intent to distribute. This claim is effectively refuted by the facts. “A conspiracy is defined as a common design or agreement to accomplish an unlawful purpose or a lawful purpose by unlawful means.” State v. Chavez, 99 N.M. 609, 611, 661 P.2d 887, 889 (1983) (citing State v. Thoreen, 91 N.M. 624, 628, 578 P.2d 325, 329 (Ct.App.), cert. denied, 91 N.M. 610, 577 P.2d 1256 (1978)); see also NMSA 1978, § 30-28-2(A) (Repl.Pamp.1984) (“Conspiracy consists of knowingly combining with another for the purpose of committing a felony within or without this state.”). A conspiracy can be established by an inference from circumstantial evidence. State v. Davis, 92 N.M. 341, 342, 587 P.2d 1352, 1353 (Ct.App.), cert. denied, 92 N.M. 353, 588 P.2d 554 (1978); State v. Armijo, 90 N.M. 12, 14, 558 P.2d 1151, 1153 (Ct.App.1976).
From the afternoon of August 8 when Bankert and Christison ingested cocaine with Hall, to the final violent demand for all seven grams, Bankert was involved in nearly every act taken in furtherance of the conspiracy. There was, between the common-law husband and wife, a common design and a mutual agreement to obtain two eight-balls of cocaine. See id.
ISSUE SIX — USE OF PRIOR CONVICTION OF ANOTHER PARTY TO THE CRIME
The final claim in this appeal is that the prosecutor made prejudicial remarks linking Bankert to a conspiracy with the already convicted Chester Smith. It is argued that these remarks were prejudicial, linking the presumably innocent Bankert to a convicted co-conspirator.
This issue was also not preserved below and introduces no fundamental error. Furthermore, the transcript shows that Bankert elicited testimony about Smith’s guilt and made pointed remarks about Smith’s conviction .in his closing arguments. The doctrine of fundamental error cannot be invoked to remedy the defendant’s own mistakes. State v. Clark, 108 N.M. 288, 295, 772 P.2d 322, 329 (finding no application of the doctrine of fundamental error “where the defendant by his own actions created the error”), cert. denied, 493 U.S. 923, 110 S.Ct. 291, 107 L.Ed.2d 271 (1989), overruled on other grounds by State v. Henderson, 109 N.M. 655, 664, 789 P.2d 603, 612 (1990). Smith’s conviction was presented to the jury, not by the prosecution, but by Bankert himself.
CONCLUSION
For the foregoing reasons, we affirm all the convictions below.
IT IS SO ORDERED.
MONTGOMERY, C.J., and BACA, J., concur. | [
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OPINION
BIVINS, Judge.
Plaintiffs, Cristobal Perea and Zenon Ramos (Plaintiffs), appeal an order of the district court which denied Ramos’ motion to reform a release and granted a motion for summary judgment directed against Ramos. We treat the motion to reform as Plaintiff Ramos’ showing in opposition to summary judgment. We affirm summary judgment as to Plaintiff Ramos but reverse and remand as to Plaintiff Perea. We affirm the denial of the motion to reform.
FACTS
On January 2, 1991, Plaintiffs, passengers on a farm labor bus owned by Defendant Maria Snyder and driven by Carlos Snyder, allegedly suffered injuries when their bus collided with a propane truck, owned by Defendant Ikard Corporation (Ikard) and driven by one of its employees. On January 10, 1991, eight days following the accident, Plaintiff Ramos signed a release in exchange for $4000 which released Carlos Snyder and Maria Snyder and “every other person, firm, or corporation.” It does not appear from the record that either Ikard or its insurance company (collectively Ikard) was involved in securing the release or paying any of the consideration for it.
A little over a year later, Plaintiff Perea filed suit against Maria Snyder, Ikard, and their respective insurance companies for damages allegedly resulting from the January 2, 1991, accident. The complaint was amended a month later to add Plaintiff Ramos as an additional plaintiff. After it learned of the execution of the release by Plaintiff Ramos, Ikard filed a motion for summary judgment relying on the general release clause in Plaintiff Ramos’ release. The motion sought summary judgment against Plaintiff Ramos only.
In response to Ikard’s motion for summary judgment, Plaintiff Ramos and a person named “Pereira” who was actually referred to as a “plaintiff’ (Pereira) moved to reform the general release clause in Plaintiff Ramos’ release. Issues have been raised on appeal as to the identity of Pereira. In support of their motion to reform, Plaintiff Ramos and Pereira attached a copy of the same release relied on by Ikard which had been signed by Plaintiff Ramos. The motion asserted that a release in that form had been executed by Plaintiff Ramos and Pereira in favor of Carlos Snyder and Maria Snyder. The motion also asserted that Plaintiff Ramos and Pereira did not intend to release anyone other than Carlos Snyder and Maria Snyder, and thus Plaintiff Ramos and Pereira asked the court to reform the release to limit the scope of the release to Carlos Snyder and Maria Snyder. The only authorities relied on in the motion were cases relating to the effect of settlement on joint tortfeasors’ liability. They then asked the court to defer hearing on Ikard’s motion for summary judgment until the court had acted on their motion to reform release.
Ikard responded to the motion to reform release arguing, among other things, that there was a lack of jurisdiction over “Pereira”; that the request for reformation was not properly before the court; that extraordinary circumstances did not exist to reform; and that reformation is not available where there is only a mistake as to the legal effect of the release. Ikard objected to postponing hearing on its motion for summary judgment pending disposition of Plaintiff Ramos and Pereira’s motion to reform.
A hearing was held on October 14,1992, to consider the motion to reform release. Because there was no evidentiary support for the motion, the district court gave Plaintiff Ramos and Pereira thirty days to provide evidence. Ikard’s motion for summary judgment was scheduled for hearing on October 27, 1992, but was postponed until Plaintiff Ramos and Pereira secured an affidavit and other evidence in support of their motion to reform.
On November 17, 1992, Plaintiff Ramos then filed an affidavit reciting that he had been contacted by a representative of the insurance company for Carlos Snyder and Maria Snyder and offered $4000 in exchange “for a release of Carlos Snyder and Maria Snyder only.” Plaintiff Ramos also stated that he agreed to the release and signed it with the understanding that he was releasing only Carlos Snyder and Maria Snyder and not Ikard, its driver, or anyone other than Carlos Snyder and Maria Snyder.
In December 1992, after hearing arguments on the motion to reform and motion for summary judgment, the district court denied Plaintiff Ramos and Pereira’s motion to reform and granted Ikard’s motion for summary judgment against both Plaintiff Ramos and Plaintiff Perea. This appeal by Plaintiffs followed.
DISCUSSION
Summary judgment is proper if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. SCRA 1986, 1—056(C) (Repl. 1992); Koenig v. Perez, 104 N.M. 664, 665, 726 P.2d 341, 342 (1986). Plaintiffs claim that genuine issues of material fact exist as to whether they intended to release anyone other than Carlos Snyder and Maria Snyder. Additionally, they argue that a general release is incompatible with New Mexico’s comparative negligence law and the abolition of joint and several liability and that prior case law upholding a general release should be considered in light of those recent developments in tort law. Ikard argues that the validity of the general release must be determined by contract principles and when those principles are applied to this case, summary judgment was properly granted. We first address the summary judgment motion granted against Plaintiff Perea.
Plaintiff Perea
On September 25, 1992, Ikard moved for summary judgment filed against Plaintiff Ramos only. Neither the motion nor any of the attachments to the motion mentioned Plaintiff Perea. Plaintiff Ramos and a person named Pereira then moved to reform the release. The district court subsequently granted summary judgment against both Plaintiffs.
We determine as a matter of law that summary judgment against Plaintiff Perea was improperly granted because no motion for summary judgment was ever directed specifically against him. Because of this determination, we find it unnecessary to decide whether Pereira, the person mentioned in the motion to reform, was actually Plaintiff Perea. If it were necessary to decide, we would have to remand the case because the record on appeal does not contain sufficient information to make this decision.
SCRA 1-056(D) states that summary judgment motions “will not be considered unless filed within a reasonable time ... to allow sufficient time for the opposing party to file a response!)]” In order to satisfy this notice requirement, a motion must be directed to specific parties. A movant has the option to amend the summary judgment motion to add additional parties or to change parties if that becomes necessary with the motion relating back to the date of the original motion if the party “has received such notice ... that he will not be prejudiced!)]” Cf. SCRA 1986, 1-015(C)(1) (Repl.1992).
We are unable to conclude that Plaintiff Perea received proper notice that Ikard had moved for summary judgment against him because Ikard never amended its motion for summary judgment against Plaintiff Ramos to include Plaintiff Perea. By failing to amend its motion, Ikard failed to make a summary judgment motion against Plaintiff Perea. We thus reverse the summary judgment motion granted against Plaintiff Perea and remand Plaintiff Perea’s claims to the district court. We now consider the claims involving Plaintiff Ramos.
Plaintiff Ramos
The central issue as relates to Plaintiff Ramos is whether a general release procured by one joint tortfeasor releasing that tortfeasor from liability as well as “every other person, firm, or corporation” acts to release all unnamed joint tortfeasors from liability. We begin our discussion by outlining the respective positions of the parties and burdens of proof. We then determine whether tort or contract law governs the release.
For the purposes of summary judgment, the initial burden was on Ikard to show the absence of a genuine issue of material fact, or that it was otherwise entitled as a matter of law to summary judgment in its favor. Goodman v. Brock, 83 N.M. 789, 792, 498 P.2d 676, 679 (1972). We hold that Ikard met its burden by attaching to the motion for summary judgment the copy of the release signed by Plaintiff Ramos, which showed on its face a release of Carlos Snyder and Maria Snyder and “every other person, firm, or corporation.” Thus, we hold that that release sufficed to make a prima facie showing of no genuine issue of material fact. By its reliance on the release, Ikard in effect affirmatively set forth the release as an affirmative defense and, therefore, had the burden of proof as to the execution of the release. See SCRA 1986, 1-008(C) (Repl.1992); Foster v. Aetna Life Ins. Co., 352 Mo. 166, 176 S.W.2d 482, 485 (1943) (release is an affirmative defense and burden rests on party who pleads it to prove execution). Plaintiff Ramos, however, does not challenge the execution of the release or the adequacy of the consideration.
Plaintiff Ramos instead asserted two arguments below, one legal and the other factual. First, Plaintiff Ramos contends that with the abolition of joint and several liability, the reason for a settling tortfeasor to secure the release of all other tortfeasors no longer exists because each tortfeasor is now only liable for his or her own individual negligence or fault. Second, he attempted to raise a factual issue, arguing that he signed the release with the understanding that he was releasing only Carlos Snyder and Maria Snyder and that it was not his intent to release anyone else. These arguments constitute avoidance of the release. While the initial burden rested with Ikard to prove the execution of the release, the burden rested with Plaintiff Ramos to prove its invalidity. See Foster, 176 S.W.2d at 485; see also Maxfield v. Denver & Rio Grande W. R.R., 8 Utah 2d 183, 330 P.2d 1018, 1019 (1958) (one who attacks release has burden of proving its invalidity); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 49, at 335 (5th ed. 1984); 66 Am.Juf.2d Release § 60 (1973).
Thus, once Ikard made a prima facie showing of the execution of the release, the burden shifted to Plaintiff Ramos to either demonstrate a genuine factual issue or that Ikard was not entitled to summary judgment as a matter of law. See Goodman, 83 N.M. at 793, 498 P.2d at 680. We first examine Plaintiff Ramos’s legal argument that a release of strangers is no longer viable in light of the abolition of joint and several liability. In making a determination as to that argument, we must determine whether tort or contract law governs the release.
At common law, each tortfeasor was subject to joint and several liability for damages arising from an injury with a release of one joint tortfeasor acting as a release for all other joint tortfeasors regardless of the terms of the release. Wilson v. Galt, 100 N.M. 227, 231, 668 P.2d 1104, 1108 (Ct.App.), cert. quashed, 100 N.M. 192, 668 P.2d 308 (1983); see McInnis v. Harley-Davidson Motor Co., 625 F.Supp. 943, 947 (D.R.I.1986). The adoption of the Uniform Contribution Among Tortfeasors Act, NMSA 1978, Sections 41-3-1 through -8 (Repl.Pamp.1989) (the Uniform Act), in 1947, gave joint tortfeasors the right of contribution from fellow tortfeasors. See Wilson, 100 N.M. at 231, 668 P.2d at 1108. Under the Uniform Act, a settling tortfeasor could protect himself or herself from further liability to the injured person and from other tortfeasors seeking contribution. Id. This could be done under Section 41-3-4 which permits the settling tortfeasor to secure a release not only for himself or herself but on behalf of all other tortfeasors when “the release so provides.” The Uniform Act, however, did not change the common law rule of joint and several liability, and, in fact, joint and several liabihty was not finally abolished until 1982 with the decision of Bartlett v. New Mexico Welding Supply, Inc., 98 N.M. 152, 158, 646 P.2d 579, 585 (Ct.App.), cert. denied, 98 N.M. 336, 648 P.2d 794 (1982).
Plaintiff Ramos contends that with the abolition of joint and several liability, the reason for a settling tortfeasor to secure the release of all other tortfeasors no longer exists. See Wilson, 100 N.M. at 231, 668 P.2d at 1108 (Bartlett effectively eliminates any basis for contribution among concurrent tortfeasors.). Thus, according to Plaintiff Ramos, now that joint and several liability and consequently liability for contribution have been abolished, a general release of “every other person, firm, or corporation” no longer has the significance it once had and therefore should not act to relieve non-settling tortfeasors. While we agree that the advent of comparative negligence and the abolition of joint and several liability reduced the need for a general release, we disagree that the settling parties are precluded from entering into a general release settling all claims and bringing the matter to an end.
Releases, because they are contractual in nature, are governed by the laws of contract. Ratzlaff v. Seven Bar Flying Serv., Inc., 98 N.M. 159, 162, 646 P.2d 586, 589 (Ct.App.), cert. denied, 98 N.M. 336, 648 P.2d 794 (1982). Thus, we conclude that the question of whether the general release clause contained in Plaintiff Ramos’ release of Carlos Snyder and Maria Snyder discharging “every other person, firm, or corporation” is binding upon Plaintiff Ramos must be determined in accordance with contract principles.
Notwithstanding the demise of joint and several liability, there is good reason to permit parties to use the expansive language. For example, the settling tortfeasor may wish to protect himself from liability for indemnification should a right of action for that relief exist, and, as perhaps applicable to this case, avoid being brought into a suit should an injured party pursue an action against a non-settling tortfeasor. In sum, the settling tortfeasor may want to bring finality to the matter. In this regard, it is interesting to note that, notwithstanding her release, Maria Snyder actually appears as a Defendant in this action. The claim against her is not, however, before this Court, and we do not speculate as to its status. Having determined that contract law governs, we now consider Plaintiff Ramos’ specific claims.
It appears that at least three approaches have been taken by states, like New Mexico, that have adopted the Uniform Act in deciding whether general releases bar the plaintiffs from proceeding against non-settling tortfeasors. These three approaches are discussed in Moore v. Missouri Pacific Railroad, 299 Ark. 232, 773 S.W.2d 78, 80-81 (1989). See generally Anne M. Payne, Annotation, Release of One Joint Tortfeasor as Discharging Liability of Others Under Uniform Contribution Among Tortfeasors Act and Other Statutes Expressly Governing Effect of Release, 6 A.L.R.5th 883 (1992). Some courts adopt the view that a general release clause is an automatic absolute bar to the plaintiffs’ proceeding against unnamed tortfeasors (absolute bar rule). Moore, 773 S.W.2d at 80. Other jurisdictions have held that the release of one tortfeasor does not discharge other joint tortfeasors unless the tortfeasors are identified by name or are specifically identifiable from the face of the release (specific identity rule). Id. at 80-81. A third line of cases permits the evaluation of evidence beyond the four corners of the document so that the release will act as a general release if and to the extent that the parties so intended (intent rule). Id. at 80.
Given this state’s preference to allow parties to contract as they may wish, see Castle v. McKnight, 116 N.M. 595, 599, 866 P.2d 323, 327 (1993) (Court expresses preference for allowing parties to contract as they wish); Estep v. State Farm Mutual Automobile Insurance Co., 103 N.M. 105, 112, 703 P.2d 882, 889 (1985) (Stowers, J., dissenting), coupled with long-standing pronouncements which favor settlements, see Ratzlaff, 98 N.M. at 163, 646 P.2d at 590, we hold that, absent an ambiguity or other reasons which might invalidate the contract, such as fraud, duress, or undue influence, see Moruzzi v. Federal Life & Casualty Co., 42 N.M. 35, 51-52, 75 P.2d 320, 330 (1938), the parties to a release are free to discharge not only the settling tortfeasor but all other unnamed tortfeasors as third party beneficiaries to the release. This rule gives efficacy to the right of the parties to freely contract while at the same time permitting a party to the release to seek relief from the release for any of the reasons permitted by law.
Applying this rule to the three approaches mentioned above, we first reject the specific identity rule outright as being contrary to principles of statutory construction adhered to in this state. For example, in Bjork v. Chrysler Corp., 702 P.2d 146, 168 (Wyo.1985), a case relied on by Plaintiff Ramos and cited in Moore, 773 S.W.2d at 81, the Wyoming Supreme Court adopted the specific identity rule holding that language in the Uniform Act stating that a release does not discharge other tortfeasors “ ‘unless its terms so provide’” is to be construed narrowly. The court reasoned that the quoted phrase in the statute “compels the releasor to name or otherwise specifically identify the released tortfeasors in order that the intent of the parties be fulfilled.” Bjork, 702 P.2d at 163. We, however, determine that such interpretation not only frustrates the parties’ right to generally release all joint tortfeasors, but also ignores the plain language of the equivalent phrase in New Mexico’s version of the Uniform Act, “unless the release so provides[,]” and therefore, reject the Bjork approach. See § 41-3-4. Parties are free, of course, to specifically identify those tortfeasors they want to release, instead of using a general release clause.
Addressing the absolute bar rule, a general release clause would, of course, have the effect of an absolute bar if there were no contractual impediments and if the language reflects the parties’ intent. However, if, for example, an ambiguity issue is raised reflecting that the language agreed upon by the parties meant something other than generally releasing all joint tortfeasors, the general release clause would not serve as an automatic bar.
In Moore, 773 S.W.2d at 80, the Arkansas Supreme Court, citing Johnson v. City of Las Cruces, 86 N.M. 196, 521 P.2d 1037 (Ct.App.1974), characterized New Mexico as a state that follows the absolute bar approach. This description was probably correct at the time Moore was decided if one looks solely to Johnson because this Court in Johnson relied on the four corners approach to contract interpretation, limiting interpretation to the plain meaning -of the words in the contract. Id. at 197, 521 P.2d at 1038. Johnson, however, must now be read in light of subsequent case law, which we now discuss.
Addressing the concern that written language is not always precise and often is subject to multiple interpretations, recent developments in case law in this state reflect a more lenient approach to dealing with ambiguity issues, allowing the court to look beyond the written words of a contract to determine the parties’ intent. See Mark V, Inc. v. Mellekas, 114 N.M. 778, 781, 845 P.2d 1232, 1235 (1993); C.R. Anthony Co. v. Loretto Mall Partners, 112 N.M. 504, 508-09, 817 P.2d 238, 242-43 (1991). Thus, if an issue regarding ambiguous language is properly raised, the court would be entitled to first review extrinsic evidence to determine whether an ambiguity exists and, if an ambiguity is found, then to determine the true intent of the parties by examining all the circumstances surrounding execution of the ambiguous agreement. Mark V, Inc., 114 N.M. at 781, 845 P.2d at 1235.
This leads us to the third approach, the intent approach. Applying our recent cases on contract interpretation to a general release clause, the intent rule probably comes closest to reflecting the approach our courts should take, recognizing, however, that an absolute bar will be presumed to be the intent of the parties to a general release unless an ambiguity is shown to exist by extrinsic evidence. We believe this to be consistent with the reasoning in both Mark V, Inc. and C.R. Anthony Co. If an ambiguity is shown, the parties’ intent will be examined further with the clause to be interpreted according to the parties’ original intent.
After the motion for summary judgment was made, Plaintiff Ramos moved to reform the release because, as he stated in a later affidavit, he was offered $4000 “for a release of Carlos Snyder and Maria Snyder only.” (Emphasis added.) Plaintiff Ramos failed, however, to argue that the language in the general release clause was actually ambiguous or vague.
An ambiguity argument is a very different argument than the reformation argument Plaintiff Ramos offered. Had Plaintiff Ramos made a proper ambiguity argument, it would have prompted, first, an inquiry to determine whether there was an ambiguity in the general release clause, with extrinsic evidence allowed to aid in the determination, and second, if found to be ambiguous, an inquiry to determine the parties’ true intent of the meaning to be given to the clause. See Mark V, Inc., 114 N.M. at 781, 845 P.2d at 1235.
What Plaintiff Ramos attempted to do, however, was to reform his release to take out language to which he had originally consented when he did not agree with the interpretation the language was being given. Reformation of a contract is allowed if by mutual mistake, or mistake by one party and fraud or other inequitable conduct by the other, the contract does not express the parties’ true intent. Drink, Inc. v. Martinez, 89 N.M. 662, 664, 556 P.2d 348, 350 (1976). Neither of these grounds was raised below. Instead, Plaintiff Ramos argued that he did not intend to release anyone other than Carlos Snyder and Maria Snyder. Reformation of a contract is not allowed, except for the reasons mentioned above, because it is the intention which finds expression in the language used and not the party’s secret or undisclosed intent that controls. See Southern Union Exploration Co. v. Wynn Exploration Co., 95 N.M. 594, 597, 624 P.2d 536, 539 (Ct.App.) (“The controlling intent of a party is his expressed assent and not his secret or undisclosed intent.”), cert. denied, 95 N.M. 593, 624 P.2d 535 (1981), and 455 U.S. 920, 102 S.Ct. 1276, 71 L.Ed.2d 461 (1982); Crawford Chevrolet, Inc. v. National Hole-in-One Ass’n, 113 N.M. 519, 522 n. 3, 828 P.2d 952, 955 n. 3 (1992).
Notwithstanding Plaintiff Ramos’ failure to raise below an ambiguity issue, he does make that argument on appeal. While it is true that a party ordinarily can not argue issues on appeal that were not presented to the trial court, see Woolwine v. Furr’s, Inc., 106 N.M. 492, 496-97, 745 P.2d 717, 721-22 (Ct.App.1987), we have held that a different rule applies when the party opposing summary judgment attempts to call to the attention of the appellate court facts in the record not specifically brought to the attention of the district court. Phifer v. Herbert, 115 N.M. 135, 138, 848 P.2d 5, 8 (Ct.App.1993). Plaintiff Ramos in his brief in chief does make an argument that the general clause in the release was ambiguous. Although we consider Plaintiff Ramos’ ambiguity argument, we hold that he failed to meet his burden of showing any extrinsic evidence that would raise an ambiguity issue.
It may have been possible for Plaintiff Ramos to raise an ambiguity issue by showing through extrinsic evidence that the parties to the release initially intended only to cover the settling tortfeasors. For example, Plaintiff Ramos might have raised that issue by showing that based on the conduct leading up to the execution of the release, the parties could not have intended that the release cover anyone other than the settling tortfeasors or persons or entities related to the settling tortfeasors. Plaintiff Ramos made no such showing. Instead, Plaintiff Ramos attempted to raise a factual issue as to what was the intent in his own mind, which according to Southern Union Exploration Co. and Crawford Chevrolet, Inc., is not the issue. Having been given 30 days by the district court to come up with evidence to prove any ambiguity, and having completely failed to do so, summary judgment against Plaintiff Ramos was proper.
As we said earlier, the party seeking avoidance of a release carries the burden of proving its invalidity. The rationale for that rule is particularly appropriate here. Where the words of the release appear clear, placing the burden on Plaintiff Ramos is consistent with our body of law in such cases. Additionally, the party seeking to avoid the release has better access to the many facts concerning intent.
We hold that the motion to reform the release was properly denied and conclude with respect to Plaintiff Ramos that there was no ambiguity shown as to the terms of the contract. We consequently determine that Plaintiff Ramos’ general release clause prevented him from initiating suit against Ikard.
CONCLUSION
For the reasons stated, summary judgment against Plaintiff Ramos is affirmed, with the motion to reform properly denied. The summary judgment against Plaintiff Perea is reversed. The case is remanded to the district court for trial on the merits in the case of Plaintiff Perea. Plaintiff Perea shall recover his costs on appeal.
IT IS SO ORDERED.
PICKARD and BLACK, JJ., concur. | [
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OPINION
BACA, Justice.
Defendants’ motions for rehearing to consider whether Defendants’ racketeering convictions should be reversed was considered but not granted. We withdraw our opinion filed March 8,1994 and substitute the following after reviewing Defendants’ motions for rehearing and the State’s reply.
Defendants Jack M. Clifford and Jack J. Clifford appeal their convictions on twelve counts of embezzlement, one count of fraud, and one count of racketeering. Pursuant to NMSA 1978, Section 34-5-14(0 (Repl.Pamp.1990), we accepted certification from the Court of Appeals to address one issue: Whether the trial court erred in instructing the jury on the elements of embezzlement. Because our jurisdiction under Section 34-5-14(C) extends to the entire case, State v. Orosco, 113 N.M. 780, 781, 781 n. 2, 833 P.2d 1146, 1147, 1147 n. 2 (1992), we address the following additional issues: (1) Whether the trial court erred when it allowed the testimony of two attorney witnesses and (2) whether substantial evidence supports the fraud conviction. After considering Defendants’ motions for rehearing, we also address whether Defendants’ racketeering convictions should be reversed. We affirm in part, reverse in part, and remand for a new trial on the embezzlement and racketeering charges.
I
The following facts viewed in the light most favorable to sustaining the verdict, see State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988), were adduced at Defendants’ trial. Defendants Jack J. and Jack M. Clifford were involved in countless limited partnerships for the development of real estate. Defendants’ land development business consisted of obtaining investors who would advance money to acquire and develop real estate. The property would be improved, refinanced and sold at a profit with the proceeds being distributed to the investors and the Cliffords. At the center of activity was the Clifford Partnership. This partnership consisted of Defendants and acted as a clearinghouse for most of the Cliffords’ other entities.
This case centers around a particular limited partnership project known as Clifford Plaza II (CPII). In order to promote CPII, Defendants informed investors that excess funds from the project were to roll into an investment known as Clifford Plaza III (CPI-II). This was to be an office building adjacent to and similar to CPII.
During the latter part of 1986 and early 1987, fourteen limited partners invested a total of $1,016,000 in CPII. However, the funds being channeled into CPII were transferred into the Clifford Partnership. In fact, on twelve occasions between November 24, 1986 and May 6, 1988, the Cliffords signed checks which transferred a total of $1,049,000 from CPII to the Clifford Partnership. The Cliffords spent the transferred money on the ordinary operating expenses of the Clifford Partnership, in which none of the CPII limited partners had any interest. In 1988, the limited partners became suspicious when no financial statement for 1987 was released and the Cliffords would not explain why no statement would be released. The investors hired an attorney, Paul Fish, to investigate the Cliffords’ records. Once Fish discovered the transfer of over $1 million from CPII to Clifford Partnership, the Cliffords attempted to “cover their tracks” by assigning to CPII limited partnership interests in entities that owned an interest in land known as the Sehwartzman property. At the time of the assignment, however, the mortgage underlying the Sehwartzman property was about to be in default and the Cliffords lacked the resources to make the mortgage payments. Consequently, the property was repossessed by the mortgagee leaving CPII with nothing.
The transfers of money from CPII to the Clifford Partnership form the basis of the State’s embezzlement ease and each transfer was charged as a separate count of embezzlement.
The State’s fraud charges revolve around the last limited partner into CPII, an entity managed by Gary Swearingen and Valerie Ricks, a father and daughter partnership. Swearingen and Ricks invested $461,500 in CPII, made in two installments. They paid $255,000 on March 27, 1987 and $206,500 on May 5,1987. By the time of the first installment, the Cliffords had transferred over a half-million dollars from CPII. Before investing in CPII, Swearingen and Ricks were told by the Cliffords that CPII funds would be used to develop CPIII. They were not told that CPII money had been taken and spent by the Cliffords for their own enterprises, and while current CPII financial information was available, the Swearingens were sent the outdated and misleading 1986 financial statements. In fact, the same day Swearingen and Ricks paid $255,000 to CPII, the entire sum was transferred to the Clifford Partnership. All but $500 of the next installment of $206,500 was also diverted by the Cliffords, once again on the very day the funds arrived. Defendants were subsequently charged with and convicted of embezzlement in excess of $20,000 and $2,500, fraud in excess of $20,000, and racketeering. Defendants appealed their convictions to the Court of Appeals which certified the fraudulent intent jury instruction issue to this Court.
II
The first issue that we address is whether the trial court erred when it instructed the jury regarding the embezzlement charges. Both Defendants claim that the trial court erred in instructing the jury because the jury instructions as given omitted an essential element of embezzlement: fraudulent intent. They both contend that this deficiency in instructing the jury mandates reversal of their convictions for embezzlement. We agree.
In State v. Green, 116 N.M. 273, 861 P.2d 954 (1993), we considered the propriety of the uniform jury instruction for embezzlement, SCRA 1986, 14-1641. In Green, the trial court’s embezzlement instruction tracked the language of the uniform jury instruction. We held that the instruction failed to include fraudulent intent, an essential element required for a conviction under our embezzlement statute, Section 30-16-8 (Repl.Pamp.1984). Green, 116 N.M. at 277, 861 P.2d at 958. While the defendant in Green neither objected to the instructions as given nor tendered a correct instruction, we reversed his conviction for embezzlement because the trial court failed to instruct the jury on all elements essential for a conviction. Id. at 279, 861 P.2d at 960.
In the case at bar, the trial court gave a series of instructions regarding the numerous charges of embezzlement against Defendants. These instructions followed the language of SCRA 14-1641 and were identical in form to the embezzlement instruction given in Green. The trial court also charged the jury with a general intent instruction, which is patterned after SCRA 14-141. As in Green, the instructions as given did not instruct the jury that it needed to find that the defendants acted with fraudulent intent to convict them of the embezzlement charges. Moreover, the general intent instruction as given does not correct the error propagated by the failure to instruct on fraudulent intent. See State v. Bunce, 116 N.M. 284, 288-89, 861 P.2d 965, 969-70 (1993). We reiterate our holding in Bunce that the failure to include an essential element in the elements instruction can never be corrected by including the concept elsewhere in the instructions. See id.
While Defendants in the instant ease couch their arguments in terms of a constitutional violation, we prefer to decide this issue under the doctrine enunciated in State v. Osborne, 111 N.M. 654, 808 P.2d 624 (1991). In that case, the trial court failed to instruct the jury on all essential elements of the crime. We based our reversal on two separate grounds: First, that SCRA 1986, 5-608(A), requires that the jury be instructed on all elements essential for conviction; and second, that a conviction based on a jury instruction that omitted an essential element under, the facts of the case amounted to fundamental error. Osborne, 111 N.M. at 661-63, 808 P.2d at 631-33.
In this case, we need not resort to an application of the doctrine of fundamental error because Defendants, unlike the defendant in Green, offered an instruction on fraudulent intent. We hold that under the facts here, failure to instruct the jury on an essential element of embezzlement—fraudulent intent—is reversible error under Rule 5-608(A). See Green, 116 N.M. at 277, 861 P.2d at 958. Accordingly, we reverse Defendants’ embezzlement convictions and remand for a new trial on those counts.
Ill
We next address whether substantial evidence supports the fraud convictions. Defendants contend that there was insufficient evidence to support a verdict of guilty beyond a reasonable doubt that they misrepresented facts and intended to deceive or cheat Gary Swearingen and Valerie Ricks. This is an essential element of fraud and the jury was so instructed in Jury Instruction Number 16.
Our review consists of determining “whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction.” Sutphin, 107 N.M. at 131, 753 P.2d at 1319. “Substantial evidence is that evidence which is acceptable to a reasonable mind as adequate support for a conclusion.” State v. Isiah, 109 N.M. 21, 30, 781 P.2d 293, 302 (1989). We view the evidence in the light most favorable to supporting the verdict and resolve all conflicts and indulge all permissible inferences in favor of upholding the verdict. Sutphin, 107 N.M. at 131, 753 P.2d at 1319. We review all of the evidence presented in the ease, State v. Aranda, 94 N.M. 784, 786, 617 P.2d 173, 175 (Ct.App.1980), and neither reweigh the evidence nor substitute our judgment for that of the jury, Sutphin, 107 N.M. at 131, 753 P.2d at 1319.
In light of the above standard of review, Defendants’ contentions of insufficient evidence to support guilty verdicts of fraud must fail. “Fraud consists of the intentional misappropriation or taking of anything of value which belongs to another by means of fraudulent conduct, practices or representations.” NMSA 1978, § 30-16-6 (Repl. Pamp.1984). There was sufficient evidence presented at trial of all of the above elements so that the jury could have reasonably inferred that Defendants intentionally misappropriated funds invested by Swearingen and Ricks and that they received those funds due to misrepresentations made to Ricks. First, Defendants led Swearingen and Ricks, along with the other limited partners to believe that all funds generated from CPII would be used to develop CPIII and not to maintain the Defendants’ own partnerships. Evidence was presented that neither Defendant revealed to Swearingen nor Ricks that funds would be taken from CPII for use in the Clifford Partnership. Moreover, Defendants’ offering circular stated that the general partners were accountable to the partnership as fiduciaries and Defendants’ own expert testified that this duty required them to use the CPII assets only for the benefit of CPII and CPIII. Evidence was presented, however, showing that the funds invested by Swearingen and Ricks in CPII were immediately diverted from the partnership and expended to meet the obligations of Defendants’ other enterprises. The jury could have reasonably found that the Defendants intentionally misappropriated the funds invested by Swearingen and Ricks by fraudulently representing what would be done with those funds.
Defendants raise several arguments. First, Defendants suggest that no fraud occurred because Swearingen and Ricks did not suffer a financial loss. This argument is without merit because a criminal conviction for fraud does not require that the victim suffer a pecuniary loss. See State v. McCall, 101 N.M. 32, 32-33, 677 P.2d 1068, 1068-69 (1984).
Defendants also contend that their representation that CPII excess funds would be invested for the benefit of the partnership and its partners was not deceptive because such an investment was made by acquiring interests in the Schwartzman property. However, Defendants immediately used the transferred excess funds, including the money invested by Swearingen and Ricks, for their own purposes. Furthermore, interests in the partnerships’ owning interests in the Schwartzman property were not transferred to CPII until almost two years later, at which time Defendants’ entities were unable to make the mortgage payments due on the property. Whether Defendants actually invested the funds was a matter for the jury to decide, see State v. Schifani, 92 N.M. 127, 130, 584 P.2d 174, 177 (Ct.App.), cert. denied, 92 N.M. 180, 585 P.2d 324 (1978), and sufficient evidence was presented to support a jury finding that Defendants did not invest the funds for the benefit of the partnership.
Finally, Jack J. Clifford argues that there was no evidence that the investors would not have invested in CPU had they been made aware of the transfer of excess funds to Clifford Partnership. We agree with the Court of Appeals that Ricks’s testimony provided the necessary evidence; She testified that she would have “questioned why the transfers were made and what the money was doing there.” Ricks also stated that she would not have invested $206,500 on May 5 if she had known that Defendants intended to transfer the money to Clifford Partnership. In sum, the jury could have reasonably found from the evidence that Swearingen and Ricks would not have invested in CPU if they had known that the excess funds had been spent for Defendants’ own purposes rather than invested.
IV
We next address whether Defendants’ racketeering convictions should be reversed. Defendants were convicted for racketeering under NMSA 1978, Section 30-42-4(A) (Repl.Pamp.1989). Because we are reversing Defendants’ embezzlement convictions, Defendants’ racketeering convictions must also be reversed. To be convicted under Section 30-42-4(A), Defendants must have committed at least two punishable offenses that constitute racketeering. See § 30-42-3(D). Without the embezzlement convictions, only one predicate offense, fraud, remains. We reverse the racketeering convictions because the law requires us to do so. We do not, however, do so in response to Defendants’ arguments on rehearing that the racketeering conviction was properly challenged on appeal. The only mention that the racketeering conviction could not stand, which we could find, was contained in the conclusory sentence of Defendant Jack J. Clifford’s brief in chief and Defendant Jack M. Clifford’s brief in chief. We remind counsel that we are not required to do their research, Lee v. Lee (In re Adoption of Doe), 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984), and that this Court will not review issues raised in appellate briefs that are unsupported by cited authority. State v. Isiah, 109 N.M. 21, 25, 781 P.2d 293, 297 (1989). When a criminal conviction is being challenged, counsel should properly present this court with the issues, arguments, and proper authority. Mere reference in a conclusory statement will not suffice and is in violation of our rules of appellate procedure. See SCRA 1986, 12-213 (Repl.Pamp.1992).
V
Finally, having held that Defendants’ convictions for embezzlement should be reversed, we need not address whether the district court erred by permitting two attorneys, John Salazar and Paul Fish, to render their opinions regarding the authority of Defendants to act as they did under the provisions of the limited partnership agreement and related documents. Their testimony related solely to the embezzlement convictions and not the fraud convictions that we affirm. On remand, however, suffice it to say that opinion testimony that seeks to state a legal conclusion is inadmissible. See First Nat’l Bank in Albuquerque v. Sanchez, 112 N.M. 317, 324, 815 P.2d 613, 620 (1991) (the trial court has “the exclusive province and responsibility” of telling the jury whether conduct is or is not “legal”); Beal v. Southern Union Gas Co., 66 N.M. 424, 436-37, 349 P.2d 337, 346 (1960) (neither expert nor non-expert witnesses are permitted to give opinions on questions of law).
On appeal, we affirm Defendants’ fraud conviction. We reverse the embezzlement and racketeering convictions and remand for a new trial on those charges.
IT IS SO ORDERED.
RANSOM and FRANCHINI, JJ., concur.
. Defendants also asserted that the record lacked substantial evidence to support their convictions on embezzlement. Our resolution of the issue certified obviates the need to address that issue. | [
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OPINION
HARTZ, Judge.
Modesto Ramirez (Claimant) appeals from an award under the Workers’ Compensation Act, claiming that he was entitled to a higher level of benefits for scheduled injuries. The Workers’ Compensation Judge found that Claimant had suffered a twenty-percent impairment of his left leg at the knee and a forty-five-percent impairment of his right large toe arising from work-related injuries on November 7, 1989, and April 17, 1990. He also found that Claimant was disabled by the injuries. The Judge awarded scheduled-injury benefits under NMSA 1978, Section 52-l-43(B) (Repl.Pamp.1987). Claimant makes an interesting argument that benefits should have been awarded under Section 52-1-43(A). We are not persuaded and therefore affirm the award.
The pertinent provisions of Section 52-1-43 state as follows:
A. For disability resulting from an accidental injury to specific body members including the loss or loss of use thereof, the worker shall receive the weekly maximum and minimum compensation for disability as provided in Section 52-1-41 NMSA 1978, for the following periods:
(3) one arm between wrist at elbow, dextrous member ...... 150 weeks
(35) one great toe at the second joint ...... 12 weeks
B. For a partial loss of use of one of the body members or physical functions listed in Subsection A of this section, the worker shall receive compensation computed on the basis of the degree of such partial loss of use, payable for the number of weeks applicable to total loss or loss of use of that body member or physical function.
Claimant contends that Section 52-l-43(A) applies whenever a loss or loss of use of a body member resulting from an accidental injury causes disability to the worker. He reads Section 52-l-43(B) as applying only when the partial loss of use of a body member has not resulted in any disability. He bases his construction of the section on the appearance of the word “disability” in subsection A and not in subsection B, which speaks only of “loss of use.”
We agree with Claimant that New Mexico appellate decisions construing the Workers’ Compensation Act and its predecessors have repeatedly distinguished between “disability” and “impairment.” See, e.g., Anaya v. New Mexico Steel Erectors, 94 N.M. 370, 372, 610 P.2d 1199, 1201 (1980). An impairment is an infirmity or defect that limits the physical functioning of the worker’s body. The total or partial loss of use of a member or physical function is an impairment. A disability, in contrast, is a limitation on the worker’s capacity to perform work. Disability and infirmity are related concepts, but they are not congruent. What might be a minor physical infirmity could cause substantial disability, as when a concert pianist suffers a finger injury. The opposite situation can also occur. A significant impairment may not cause a disability if the impairment does not affect the worker’s ability to perform his or her occupation. See Pacheco v. Springer Corp., 83 N.M. 622, 495 P.2d 800 (Ct.App.1972).
Nevertheless, we believe that Claimant’s proposed construction of Section 52-1-43 distorts the meaning of the statute. The most sensible construction of Section 52-1-43 is that subsection A sets forth the benefits for total loss or total loss of use of a member or function and subsection B sets forth the benefits for partial loss of use of a member or function.
What most gives us pause about Claimant’s argument is that it fails to explain why the legislature would want to enact a law that provides what Claimant says that it does. Under Claimant’s construction of Section 52-1-43 a worker who suffered a one-percent impairment of a member would receive the same benefits as a worker who lost the member, so long as the partially impaired worker suffered at least some disability — perhaps as little as a one-percent disability. That result would be contrary to the consistent philosophy of New Mexico workers’ compensation acts that persons who suffer a certain percentage of partial disability (or partial impairment) should receive benefits equal to that percentage of what one would receive for total disability (or total impairment). Thus, a worker ,who suffers a partial disability ordinarily receives benefits equal to “a percentage of the benefit payable for total disability,” NMSA 1978, § 52-1-42 (Repl. Pamp.1987), and, as Claimant recognizes, a worker who suffers a partial impairment of a member ordinarily receives “compensation computed on the basis of the degree of such partial loss of use.” Section 52-1 — 43(B). We can conceive of no reason why the legislature would depart from this philosophy to provide the same benefits under Section 52-l-43(A) regardless of the extent of disability or impairment.
Moreover, if Claimant were correct in his interpretation of Section 52-l-43(A), we question whether the legislature would have bothered to enact Section 52-l-43(B), because in the great majority of cases the partial loss of use of a member would cause a partial disability. If the statute were construed in the manner suggested by Claimant, there would be few occasions in which a worker would be relegated to recovery under Section 52-l-43(B).
Although the use of the word “disability” in Section 52-l-43(A) is troubling, it can be explained. The language is parallel to that used at the beginning of NMSA 1978, Section 52-1 — 41 (Repl.Pamp.1987) (“For total disability____”) and Section 52-1 — 42 (“For partial disability____”). Continuing that phrasing in Section 52-1-43 would seem natural because of the understandable assumption that anyone who suffered the loss or total loss of use of a member would generally be disabled to some extent.
Our interpretation is buttressed by language in Section 52-1-43(B). Subsection B provides that the benefit payable for partial loss of use is computed on the basis of the degree of partial loss and is “payable for the number of weeks applicable to total loss or loss of use of that body member or physical function.” The “number of weeks” referred to is the number of weeks set forth in the various paragraphs in subsection A. We find it significant that subsection B refers to those numbers as the “number of weeks applicable to total loss or loss of use,” thereby indicating that the provisions in subsection A relate solely to total loss or loss of use of a body member or physical function.
Persuasive support for our construction of Section 52-1-43 also appears in prior New Mexico appellate opinions. Although no opinion has directly addressed the issue raised by Claimant, the resolution of other issues has led the courts to determine the meaning of the language in question on this appeal. Thus, in Hise Construction v. Candelaria, 98 N.M. 759, 760, 652 P.2d 1210, 1211 (1982), the Supreme Court wrote:
The scheduled injury section does not take into consideration the occupation of the worker and how the loss of the specific member of the body may affect his or her ability to perform the duties of his or her job. The schedule, for example, awards the same benefit to a piano player as to a night watchman for the loss of a finger, hand or arm.
To state that benefits for scheduled injuries are independent of the effect on the worker’s “ability to perform the duties of his or her job” is another way of saying that disability is not required for recovery pursuant to Section 52-1-43.
A blunter statement of the same proposition appears in the insightful opinion for the Court by Judge Wood in Witcher v. Capitan Drilling Co., 84 N.M. 369, 503 P.2d 652 (Ct.App.1972), cert. quashed, 85 N.M. 380, 512 P.2d 953 (1973). The opinion construed NMSA 1953, Section 59-10-18.4 (Cum.Supp. 1959), which was the predecessor to Section 52-l-43(A) and began with the identical language: “For disability resulting from an accidental injury to specific body members including the loss or loss of use thereof----” The Witcher Court was troubled that if the word “disability” in subsection A meant the same thing as “disability” in the sections on total and partial disability, then a person who lost a member but suffered no disability would receive no compensation; it concluded that “ ‘disability’ in Subparagraph A means ‘physical impairment.’ ” Id. at 371, 503 P.2d at 654; see Pacheco, 83 N.M. at 623, 495 P.2d at 801 (“Compensation, apart from the scheduled injury section, ... is based on disability to work[.]”).
No later opinion has called into question that statement in Witcher. Once the courts have authoritatively construed statutory language, the legislature is entitled to rely on that construction. In particular, if the legislature uses the same language in the same context in a later enactment, we should presume that the legislature intended the language to be construed as it had been in the past. See Matthews v. State, 113 N.M. 291, 295, 825 P.2d 224, 228 (Ct.App.1991) (“In amending the statute, the legislature is presumed to have been informed as to the prior judicial interpretation or construction applied to such act.”). For the courts to change their construction of the language after it is reenacted is almost to defraud the legislature. Because the pertinent language in Section 52-1-43 has been reenacted several times, including in 1987 when it replaced language of the 1986 Interim Act that was rather different from any predecessor scheduled-injury section, see NMSA 1978, § 52-1-43 (Cum.Supp.1986), we should defer to Witcher’s construction of the language even if we harbored some doubt concerning the correctness of that decision. Deference is easy for us in this ease because we believe Witcher to be correct.
In sum, we construe Section 52-1-43 as providing a simplified method for determining the benefits owed a worker when the sole injury to the worker is the loss or impairment (total or partial) of certain body members or functions. The benefits are due even absent proof of disability caused by the loss or impairment. Subsection A states the benefits for loss or total impairment. Subsection B states how to compute benefits when the impairment is only partial.
We therefore reject Claimant’s contention that he is entitled to benefits under Section 52-l-43(A) and affirm the award below.
IT IS SO ORDERED.
MINZNER, C.J., and BIVINS, J., concur. | [
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OPINION
RANSOM, Justice.
James E. Turpin obtained a dissolution of his partnership with Patrice Smedinghoff. He appeals from the part of the judgment that distributed the partnership assets equally between the two partners, awarded Turpin the sum of $1000, and awarded Smedinghoff $9,840.90 in attorney’s fees and costs. Because we find that substantial evidence supports the court’s conclusion that the partnership assets should be divided equally between the partners and the conclusion that Turpin should recover $1000 in expenses, we affirm the judgment in part. Smedinghoff, however, failed to show either a breach of Turpin’s fiduciary duty that resulted in damage to her or that she was forced to attempt to preserve a common fund because of a wrongful act by Turpin. We therefore reverse the award of attorney’s fees.
Facts and proceedings below. In December 1988, Turpin and Smedinghoff entered into a partnership called “TCG Partners”. TCG’s sole asset was a 16.5% interest in a limited partnership known as Mesilla Partners, Ltd., which TCG acquired by exercising an option given to TCG by one of Turpin’s corporations, doing business as Turpin & Associates (“Associates”). Mesilla Partners owned a ground lease and the building in which Associates was a tenant. At the time she became a partner in TCG, Smedinghoff was employed by Associates. She did not have to invest anything to become a partner, and the only activity of TCG was to file a yearly tax return. Turpin conducted the operation of the partnership and Smedinghoff never questioned his activities. Under the terms of the partnership agreement, Turpin and Smedinghoff each received a fifty percent interest in TCG; the affairs of the partnership were to be approved by the vote of a majority in interest; and upon termination of TCG the assets were to be distributed to the partners in proportion to the percentages of their ownership.
In June 1990, Smedinghoff resigned from Associates, and Turpin requested that she sell back her interest in TCG. After she refused, Turpin told her that TCG had incurred over $2000 in expenses for preparation of tax returns and legal expenses in forming the partnership, and he asked her to pay one-half of this amount. Smedinghoff refused to pay. In October 1991, Turpin filed a complaint for dissolution of the partnership, requesting award of all of the partnership assets and one-half of the expenses he incurred in the operation of TCG. Smedinghoff cross-claimed for breach of the partnership agreement and breach of fiduciary obligations and misrepresentation, and requested one-half of the partnership assets, plus damages and attorney’s fees.
Substantial evidence supports equal division of partnership assets and award of expenses. The partnership agreement expressly provided that the partners would each receive their proportionate share of the partnership assets upon dissolution. Turpin provided no evidence that the agreement was amended. Thus, because it is uncontroverted that both Turpin and Smedinghoff owned fifty percent of TCG, there is substantial evidence to support the court’s conclusion that the assets should be divided equally, even though Smedinghoff never actually contributed any capital to the partnership.
The partnership agreement also provided that if income were not sufficient to pay operating costs, the partners would contribute to pay the costs in proportion to their interests, except that the “amount of funds subject to ... contribution in any calendar year shall not exceed $1,000 in the aggregate, unless any excess is approved by Partners holding majority interest in the capital of the Partnership.” Turpin provided statements billed to the partnership for four years of accounting services in the amount of $2,201.06 and for legal services in connection with formation of the partnership in the amount of $817.07. He testified that the accounting services were paid by exchanging his services for those of the accountants and that the bills were prepared for purposes of proving his expenses at trial.
Finding No. 15 states that Turpin “incurred expenses, in the form of an exchange of services, for the preparation of TCG related documents, in the amount of $2,000.” In conclusion of law No. 8, the court held that “Smedinghoff shall pay $1,000 to [Turpin] as her contribution for the payment of TCG’s expenses____” Although the trial court did not expressly state that Smedinghoff was not liable for part of the legal fees, we infer from finding No. 15 that the court found that she was liable only for the tax preparation as “operating expenses.” Smedinghoff testified that she was told there were no expenses to her for joining the partnership. The trial court reasonably could find, therefore, that Smedinghoff was not liable for the legal fees in forming the partnership. Because Turpin’s bills were based only on estimates of expended time, the trial court’s finding that $500 per return was a reasonable expense is supported by substantial evidence.
The trial court erred in awarding attorney’s fees. The trial court found that Turpin technically had breached both the partnership agreement and his fiduciary duty to Smedinghoff by failing to disclose all material facts that may have affected the partnership. While that finding is supported by substantial evidence, the court made no finding that Smedinghoff was harmed by the breach, that Turpin acted in bad faith, or that any unauthorized acts taken by Turpin were unreasonable or unnecessary. The only harm alleged by Smedinghoff was that, had she known she was obligated to pay one-half of TCG’s accounting fee, she could have avoided such expense by having a family member prepare the partnership tax returns. Also, she had to pay attorney’s fees to defend the dissolution of partnership action. The court apparently based its conclusion that Smedinghoff should be awarded attorney’s fees solely on the fact that Smedinghoff established that Turpin technically breached the partnership agreement by failing to get advance approval for accounting services and for opening a bank account for TCG. Turpin argues that in Bassett v. Bassett, 110 N.M. 559, 798 P.2d 160 (1990), the case in which this Court allowed an award of attorney’s fees as an exception to the American Rule (that parties must pay their own attorney’s fees absent a statute, court rule, or agreement to the contrary) in breach of partnership agreement cases, the rationale was that one partner had suffered harm as a result of the breach.
—Analysis of Bassett. In Bassett, the trial court imposed a constructive trust on certain property, finding that partnership funds were used to purchase the property, and that one partner had committed constructive fraud in wanton disregard of the other partner’s rights. Acknowledging the American Rule, this Court adopted an exception announced by the Washington Supreme Court in Hsu Ying Li v. Tang, 87 Wash.2d 796, 557 P.2d 342 (1976) (en banc). Bassett, 110 N.M. at 564, 798 P.2d at 165. In Hsu Ying Li, one partner’s breach of fiduciary duty amounted to constructive fraud. The other partner sued to preserve the partnership assets and to prevent the breaching partner from commingling partnership funds with his separate funds. The court in Hsu Ying Li held that “[a] partner should share the expense of a lawsuit when he breaches his fiduciary duty to the other partners.” 557 P.2d at 346. In Bassett, this Court stated that we “read our statutes as requiring strict compliance between partners in their duty to deal with one another as fiduciaries fully, honestly and openly,” and, purporting to “follow the exception to the general rule ... as stated in Hsu Ying Li” held that “[w]here one partner breaches the fiduciary duty owed another partner ... it is within the equitable jurisdiction of the court to consider an award of attorney fees to the aggrieved partner.” 110 N.M. at 564, 798 P.2d at 165.
—Washington cases interpreting or distinguishing Hsu Ying Li. In Seattle School District No. 1 v. State, 90 Wash.2d 476, 585 P.2d 71 (1978) (en banc), a case in which the plaintiff asked the court to use its equitable powers as it had in Hsu Ying Li, the court distinguished Hsu Ying Li because there had been no allegation or proof of constructive fraud and no creation of a common fund. Id. at 107. A later Washington Supreme Court case interpreting Hsu Ying Li held that the award of attorney’s fees in Hsu Ying Li was “only superficially based on proof of constructive fraud____ The actual award stemmed from the prevailing party having preserved partnership assets, i.e., an identifi.able fund.” ASARCO, Inc. v. Air Quality Coalition, 92 Wash.2d 685, 601 P.2d 501, 520 (1979) (en banc).
In In re Estate of Kruse, 19 Wash.App. 242, 574 P.2d 744, rev. denied, 90 Wash.2d 1017 (1978), the estate of a partner requested attorney’s fees in an action for accounting because the surviving partner failed to wind up partnership affairs. The court distinguished Hsu Ying Li on the basis of the nature of the suits. Id. 574 P.2d at 749.
Citing Hsu Ying Li as authority, the plaintiff in Perez v. Pappas, 98 Wash.2d 835, 659 P.2d 475 (1983) (en banc), argued that he should be awarded attorney’s fees incurred in suing his attorney for breach of fiduciary duty. There, the plaintiff had been financially harmed through the breach of fiduciary duty, but the attorney repaid the plaintiff before trial. The court held that because the plaintiff had been repaid, no attorney’s fees were awardable. Id. at 481.
In Brougham v. Swarva, 34 Wash. App. 68, 661 P.2d 138 (1983), the court focused on the question whether a partner is entitled to attorney’s fees when he brings an action for accounting based on an alleged breach of fiduciary duty. The court stated that the award in Hsu Ying Li was based on the “common benefiVcommon fund theory,” and because there was no proof of an attempt to preserve the common fund or of constructive fraud, the partner was not entitled to attorney’s fees even if a breach of fiduciary duty had been committed. Id. at 141-42; see also Kelly v. Foster, 62 Wash.App. 150, 813 P.2d 598, 601 (holding that breach of fiduciary duty alone does not mandate award of attorney’s fees), rev. denied, 118 Wash.2d 1001, 822 P.2d 287 (1991). We thus see that in Washington an award of attorney’s fees for breach of fiduciary duty based on the Hsu Ying Li exception is limited to situations either of constructive fraud with resulting harm or of the preservation of a common fund.
—Policy of this Court regarding use of inherent equitable powers to award attorney fees. This Court has been reluctant to extend awards of attorney’s fees except in limited circumstances. In Gregg v. Gardner, 73 N.M. 347, 360, 388 P.2d 68, 77 (1963), for example, we stated that attorney’s fees are awarded only in “rare instances.” Although this Court has affirmed without analysis a trial court’s determination that a corporation should pay attorney’s fees for its two warring principals in a declaratory judgment action, see Marron v. Wood, 55 N.M. 367, 380, 233 P.2d 1051, 1060 (1951), we have declined to extend an award of attorney’s fees based on equitable considerations to other situations, see Martinez v. Martinez, 101 N.M. 88, 93, 678 P.2d 1163, 1168 (1984) (reversing award of attorney fees for breach of real estate contract and declining to expand Marron). In Gurule v. Ault, 103 N.M. 17, 702 P.2d 7 (Ct.App.1985), the trial court used its inherent equitable powers to award attorney’s fees in an attempt to discourage bringing actions in bad faith. Id. at 19, 702 P.2d at 9. The Court of Appeals reversed, implying that the basis for award did not fit into any of the recognized exceptions to the American Rule. Id.
In light of the interpretation of the Washington eases and our reluctance to award attorney’s fees absent an express statute, court rule, or contract providing for such award, we clarify that Bassett stands for the proposition that the partnership statutes imply the basis for an award of attorney’s fees only when there has been a breach of fiduciary duty as a result of constructive fraud that results in actual harm or when one partner sues in order to maintain the common fund.
—Application of Bassett to this case. Smedinghoff agreed to pay for operating costs in excess of income that did not exceed $1000 on a yearly basis. Preparation of income tax returns was a legal duty of the corporation. Therefore, the fact that Smedinghoff had to pay for the preparation of taxes caused her no harm; preparation of the taxes was a necessary activity of the partnership. Further, payment of legal fees for representation in the dissolution of partnership action was not a damage resulting from a wrongful act; it is not wrongful to seek dissolution of a partnership. Smedinghoff also requested dissolution of the partnership in her counterclaim. Smedinghoff has not proved that Turpin committed constructive fraud that resulted in damages nor has she proved maintenance of a common fund. Thus, she is not entitled to recovery of attorney’s fees under Bassett or under our partnership statutes.
Conclusion. We affirm the trial court’s judgment dividing the partnership assets equally between the parties, affirm the award of $1000 in favor of Turpin, and reverse the judgment awarding attorney’s fees to Smedinghoff.
IT IS SO ORDERED.
MONTGOMERY, C.J., and BACA, J., concur.
. New Mexico courts have long recognized the "common fund exception” to the American Rule. See Las Vegas Ry. & Power Co. v. Trust Co., 17 N.M. 286, 291, 126 P. 1009, 1010 (1912), error dismissed, 238 U.S. 645, 35 S.Ct. 792, 59 L.Ed. 1503 (1914).
. The Court stated, "[t]he trial court must have felt the discord and bitterness which marred operations of the [corporation's] affairs ... was in part attributable to each of the two principals still active in the [corporation]. This perhaps explains the trial court's action in declaring that the corporation should pay the attorneys’ fees for each side.... We are not disposed to set aside this exercise of discretion by the trial judge.” 55 N.M. at 380, 233 P.2d at 1060. | [
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OPINION
HARTZ, Judge.
The Secretary of the New Mexico Taxation and Revenue Department (Department) appeals from a district court judgment awarding Vivigen, Inc., a refund of $115,016.77 in compensating taxes, interest, and penalty that Vivigen paid following the Department’s audit for the period January 1,1984, through June 30, 1990.
The Department based its assessment of taxes against Vivigen on Vivigen’s failure to pay compensating taxes. Compensating tax is imposed on one who uses tangible property “acquired outside this state as the result of a transaction that would have been subject to 'the gross receipts tax had it occurred within this state.” NMSA 1978, Section 7-9-7(A) (Repl.Pamp.1990); see Section 7-9-9 (Repl. Pamp.1990) (user is liable for payment of compensating tax); cf. NMSA 1978, § 7-9-4 (Repl.Pamp.1990) (seller is liable for payment of gross receipts tax). The district court ruling stated four grounds why Vivigen did not have to pay all or part of this tax. First, the district court held that Vivigen was a manufacturer and therefore entitled to the deduction for certain sales of tangible personal property to a person engaged in the business of manufacturing. NMSA 1978, § 7-9-46 (Repl.Pamp.1990). Second, the district court held that the procedures of the Department violated Vivigen’s constitutional rights and therefore the Department was not entitled to recover any taxes, interests, or penalty from Vivigen. Third, the district court held that Vivigen was entitled to an offset for investment credits for 1984 through 1990 pursuant to the New Mexico Investment Credit Act, NMSA 1978, §§ 7-9A-1 through 7-9A-9 (Repl.Pamp.1990), even though Vivigen had not claimed the credits within the one-year statute-of-limitations period. Section 7-9A-8 (Effective until January 1, 1991). Fourth, the district court held that Vivigen was not negligent and should not have to pay a negligence penalty. We reverse on all grounds.
I. DEDUCTION FOR SALES TO MANUFACTURER
Vivigen is a biotechnology company whose expertise is in the diagnosis of genetic disorders that can be detected through the appearance of chromosomes. Vivigen receives specimens of amniotic fluid or other human tissue, uses chemical reagents to nurture cell reproduction in a controlled environment, and then harvests the cultures. The harvested cells are stained and dried by Vivigen’s technicians, and individual slides are then reviewed by Vivigen’s scientific experts, who render a diagnosis. Vivigen produces two tangible objects that are provided to its customers. First, it provides a written report of its experts’ diagnosis. Second, it provides what it calls a laminated karyotype, which consists of photographs of chromosomes that are numbered and pasted onto a piece of laminated cardboard. The laminated’ karyotype illustrates the findings made by Vivigen and presumably can be used by an outside expert to review Vivigen’s diagnosis.
We need not decide whether Vivigen can be said to “manufacture” its reports or laminated karyotypes. See NMSA 1978, § 7-9-3(G) (Repl.Pamp.1990) (Effective until July 1, 1998) (defining “manufacturing”). Even if it does manufacture those objects, Vivigen has not established its entitlement to a deduction. The manufacturing deduction applies only to a sale of personal property that is incorporated as an ingredient or component part of the manufactured product. Section 7-9-46 states in its entirety:
Receipts from selling tangible personal property may be deducted from gross receipts if the sale is made to a person engaged in the business of manufacturing who delivers a nontaxable transaction certificate to the seller. The buyer delivering the nontaxable transaction certificate must incorporate the tangible personal property as an ingredient or component part of the product which he is in the business of manufacturing.
Thus, the deduction here would be proper only for purchases of materials that constitute an ingredient or component part of the report or laminated karyotype. Those materials would primarily be paper, cardboard, paste, and film. See Deduction — Gross Receipts Tax—Sales to Manufacturers, N.M. Taxation & Revenue Dep’t Reg. 7-9-46, No. GR 46:2 (Nov. 26,1990) (plates used in printing newspapers are not ingredients or component parts of the newspaper); No. GR 46:4 (electricity used in manufacturing does not become an ingredient or component part of the manufactured article). At the hearing in district court Vivigen did not identify any out-of-state purchases (those purchases that would be subject to the compensating tax) of products incorporated into its reports or laminated karyotypes. (The Department had identified as subject to the compensating tax such items as microscopes, sinks, and furniture, which undoubtedly were not incorporated into the documents or laminated karyotypes.) Because the Department’s assessment of taxes is presumed to be correct, NMSA 1978, § 7-l-17(C) (Repl.Pamp.1990), the failure of Vivigen to put on any evidence of expenditures for products that became an ingredient or component part of Vivigen’s reports or laminated karyotypes forecloses it from any recovery pursuant to the deduction for sales to manufacturers. See also NMSA 1978, § 7-9-8(A) (Repl.Pamp.1990) (presumption that property purchased for delivery into this state is bought or sold for taxable use in the state); Wing Pawn Shop v. Taxation & Revenue Dep’t, 111 N.M. 735, 740-41, 809 P.2d 649, 654-55 (Ct.App.1991) (taxpayer has burden to establish clearly the entitlement to an exemption or deduction).
II. DUE PROCESS AND EQUAL PROTECTION
As an alternative ground for setting aside the total amount of the assessment against Vivigen, the district court stated that the conduct of the Department in determining the assessment violated Vivigen’s rights to due process and equal protection of the law. See N.M. Const, art. II, § 18. We disagree.
The essential facts do not appear to be disputed by the parties. In February 1989 an auditor with the Department overheard a conversation of a passenger sitting directly behind her on an airplane. The passenger, an employee of Vivigen, was discussing the success and rapid growth of the company. Upon returning to her office, the auditor reviewed Vivigen’s reporting history on the Department’s computer and discovered that the company had never reported compensating taxes. The Department therefore selected Vivigen for a field audit. On February 17, 1989, the Department sent a notice of audit to Vivigen. The notice advised Vivigen that the audit would ordinarily cover records relating to transactions for the three previous years but the period of examination could be extended.
The field audit of Vivigen’s books did not begin until August 15, 1990. The Department contends that this delay was the result of normal backlog and the promotion of the auditor who overheard the conversation on the airplane. The audit established a 100% underreporting of compensating taxes during the three-year period under examination. As a result, the audit period was extended back an additional three years to include 1984 through 1986. By mid-September 1990 the Department’s auditor had completed examination of all records provided to her by Vivigen. Because Vivigen had provided no invoices, ledgers, or similar records for the tax years 1984 through 1986, the Department relied on Vivigen’s corporate income tax returns to estimate its compensating tax liability for those years. The Department offered to delay assessment until Vivigen had an opportunity to locate its records, but only if the company would sign a waiver of any statute-of-limitations defense. Vivigen refused. On November 4, 1990, the Department issued an assessment for taxes, plus penalties and interest, for the period January 1, 1984, through June 30, 1990.
Vivigen paid the assessment and then filed a claim for refund. Vivigen still had not provided the Department with books and records for the tax years 1984 through 1986. The Department denied Vivigen’s refund claim, so Vivigen filed a complaint for refund in district court. In the district court proceedings the Department obtained Vivigen’s books and records pursuant to a formal request for production. After reviewing the records, the Department concluded that it had overestimated Vivigen’s compensating tax liability for 1984 through 1986 by $911.41. Because the statute of limitations barred the assessment of tax for 1984, Vivigen received an actual tax refund of $2017.77, plus the applicable penalty and interest.
Later in the court proceeding Vivigen produced copies of invoices supporting a claim for deduction for sales taxes paid to other states for 1987 through 1990. Based on an examination of those records the Department refunded to Vivigen an additional principal amount of $10,292.08, plus the applicable penalty and interest. At trial Vivigen offered no evidence challenging the accuracy of the Department’s final audit figures.
Vivigen’s brief on appeal raises several attacks on the Department’s procedures. First, it contends that the Department’s estimated assessment, not having been based upon a review of Vivigen’s.books of account, was “clearly unwarranted, arbitrary and capricious.” Vivigen does not, however, describe the methods of estimation used by the Department and explain why they were irrational. See Archuleta v. O’Cheskey, 84 N.M. 428, 504 P.2d 638 (Ct.App.1972) (approving estimation method used by Bureau of Revenue for assessing tax); Torridge Corp. v. Commissioner of Revenue, 84 N.M. 610, 506 P.2d 354 (Ct.App.1972), cert. denied, 84 N.M. 592, 506 P.2d 336 (1973). In fact, Vivigen does not challenge the Department’s statement in its brief in chief that the estimate was very close to the figure that Vivigen did not challenge at trial. More importantly for due process purposes, the Department’s assessment was not a final, unreviewable imposition of taxes. Vivigen had the opportunity to challenge the assessment in court and it did so. See generally McKesson Corp. v. Division of Alcoholic Beverages & Tobacco, 496 U.S. 18, 110 S.Ct. 2238, 110 L.Ed.2d 17 (1990) (due process requirements in tax collections). Vivigen has cited no authority for the proposition that the Department violated Vivigen’s right to due process of law by making an assessment before Vivigen provided the pertinent records. See In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984) (issues unsupported by cited authority will not be reviewed on appeal).
Second, Vivigen complains that the Department targeted Vivigen simply because Vivigen had no history of reporting compensating taxes. We fail to see anything arbitrary, capricious, or irrational in such targeting. Unless the Department has sufficient resources to audit all taxpayers continually, it would seem reasonable to concentrate resources on those taxpayers who apparently have failed to meet their obligations.
Third, Vivigen complains about the delay of eighteen months from the time of the audit notice to the time of the field audit. It contends that “for an unreasonable period of time, Vivigen was deprived of any opportunity to review its tax situation or to effect any tax planning whatsoever.” Vivigen seems to be complaining that the Department did not definitively tell it that it needed to pay compensating taxes on out-of-state purchases so that it could have avoided taxes, interest, and penalties for compensating taxes accrued from and after February 1989. Any necessary notice, however, was provided by New Mexico statutes. In any event, the notice of audit in itself should have induced Vivigen to review applicable state tax laws. Perhaps quicker action by the Department would have induced Vivigen to seek relief from the legislature sooner than it did. See 1991 N.M.Laws, ch. 159, § 2 and ch. 162, § 2 (“genetic testing and production” now included in the definition of “manufacturing” under the Investment Credit Act, § 7-9A-3(C)). But that possibility hardly creates a constitutional issue.
Fourth, Vivigen contends that the delay between the notice and the field audit made it more difficult for it to retrieve documents because Vivigen’s principal business location was moved in the interim. Vivigen has not informed us of when the move took place, how much the difficulty in retrieving documents was increased as a result of the move, or whether its ability to prove its case was prejudiced. In the criminal context our Supreme Court has held that preaccusation delay by the government does not violate due process unless the delay caused prejudice to the merits of the defendant’s case and the state intentionally delayed to gain a tactical advantage. Gonzales v. State, 111 N.M. 363, 365, 805 P.2d 630, 632 (1991). The burden to establish a due process violation should be at least as great when a deprivation of property, rather than a deprivation of liberty, is at stake. Vivigen has failed to establish either prejudice to its case or wrongful intent. We therefore reject this argument.
Finally, again without citation to any authority, Vivigen complains of the “high-handed” treatment it received when the field audit was concluded in September 1990. Vivigen does not spell out the particulars of the alleged mistreatment, but apparently it contends that it was improper for the Department to say that unless Vivigen agreed to waiver of the limitations period the Department would not delay assessment until Vivigen provided the pertinent records. We see no impropriety in the Department’s conduct in that respect.
In its answer brief on appeal Vivigen also raises one additional equal protection argument, but because the argument was not raised in district court, we do not address it. See SCRA 1986, 12-216 (Repl.1992).
III. INVESTMENT TAX CREDIT/EQUITABLE RECOUPMENT
Vivigen contends that even if it owed compensating taxes it was entitled to an investment tax credit for out-of-state purchases of certain equipment and this credit could be used to offset the amount due. The district court agreed, but we do not.
Under the Investment Credit Act a taxpayer carrying on a manufacturing operation in New Mexico is entitled to an investment credit based on the value of certain “qualified equipment.” See §§ 7-9A-5 (Effective until January 1, 1991) and -6 (Effective until January 1, 1991). The Department contends that Vivigen is not entitled to claim the credit because (1) Vivigen does not carry on a manufacturing operation in New Mexico and (2) Vivigen did not apply for approval of the credit within one year of the end of the calendar year in which the equipment was purchased, as required by Section 7-9A-8(A). We need not address the first ground, because we agree with the Department that Vivigen’s claim for credit was untimely under Section 7-9A-8 and the credit is therefore unavailable as an offset.
Vivigen concedes that its claim for credit was untimely under Section 7-9A-8. It argues, however, that it is entitled to an offset from the assessment under the doctrine of equitable recoupment.
The doctrine of equitable recoupment in the tax-collection context has been developed primarily in the federal courts. The United States Supreme Court set forth the basic doctrine, together with the essential limitations, in Rothensies v. Electric Storage Battery Co., 329 U.S. 296, 299-300, 67 S.Ct. 271, 272-73, 91 L.Ed. 296 (1946):
The essence of the doctrine of recoupment is stated in [Bull v. United States, 295 U.S. 247, 55 S.Ct. 695, 79 L.Ed. 1421 (1935)]: “[R]ecoupment is in the nature of a defense arising out of some feature of the transaction upon which the plaintiffs action is grounded.” 295 U.S. 247, 262[, 55 S.Ct. 695, 700, 79 L.Ed. 1421], It has never been thought to allow one transaction to be offset against another, but only to permit a transaction which is made the subject of suit by a plaintiff to be examined in all its aspects, and judgment to be rendered that does justice in view of the one transaction as a whole.
The application of this general principle to concrete cases in both of the cited decisions [Bull and Stone v. White, 301 U.S. 532[, 57 S.Ct. 851, 81 L.Ed. 1265] (1937)] is instructive as to the limited scope given to recoupment in tax litigation. In both cases a single transaction constituted the taxable event claimed upon and the one considered in recoupment. In both, the single transaction or taxable event had been subjected to two taxes on inconsistent legal theories, and what was mistakenly paid was recouped against what was correctly due. In Bull v. United States, the one taxable event was receipt by executors of a sum of money. An effort was made to tax it twice — once under the Income Tax Act as income to the estate after decedent’s death and once under the Estate Tax Act as part of decedent’s gross estate. This Court held that the amount of the tax collected on a wrong theory should be allowed in recoupment against an assessment under the correct theory. In Stone v. White, likewise, both the claim and recoupment involved á single taxable event, which was receipt by an estate of income for a period. The trustees had paid the income tax on it but this Court held it was taxable to the beneficiary. Assessment against the beneficiary had meanwhile become barred. Then the trustees sued for a refund, which would inure to the beneficiary. The Court treated the transaction as a whole and allowed recoupment of the tax which the beneficiary should have paid against the tax the Government should not have collected from the trustees. Whatever may have been said indicating a broader scope to the doctrine of recoupment, these facts are the only ones in which it has been applied by this Court in tax cases.
Thus, weighing the policies favoring enforcement of the statute of limitations in tax cases against the equities favoring the taxpayer, the Supreme Court has decided “that a claim of equitable recoupment will lie only where the Government has taxed a single transaction, item, or taxable event under two inconsistent theories.” United States v. Dalm, 494 U.S. 596, 605-06 n. 5, 110 S.Ct. 1361, 1366-67 n. 5, 108 L.Ed.2d 548 (1990).
The aspect of the doctrine of equitable recoupment in the tax context that is critical to the present case is that it applies only when the government attempts to collect taxes on the same event under two inconsistent theories. If the taxpayer pays taxes on a transaction under one view of the facts and the law, the government cannot impose taxes on the transaction under a different view of the facts or the law without giving the taxpayer credit for the initial amount paid, even though the taxpayer’s claim for refund or credit would otherwise be untimely. If the government is correct in its view of the facts and the law, then the taxpayer should not have made the earlier payment and is entitled to a setoff. As stated by one commentator, “[T]he concept of ‘single transaction’ is satisfied when both the claim sued upon and that sought to be asserted as a defense result from a correction of the same error of fact or law.” Note, Recoupment of Tax Claims Barred by the Statute of Limitations, 49 Colum.L.Rev. 1156, 1157 (1949) [hereinafter Columbia Note]. Bull v. United States, summarized in the above quotation from Rothensies, is a typical example of the proper application of the doctrine.
There is remarkably little law regarding the doctrine of equitable recoupment in the context of taxation by states. What we have found, however, indicates that the prevailing rule is that the doctrine is either rejected altogether or is adopted with the restrictions recognized in federal court. See General Motors Corp. v. Limbach, 67 Ohio St.3d 90, 616 N.E.2d 204 (1993) (rejecting equitable recoupment in tax cases); Anderson v. Department of Revenue, 313 Or. 1, 828 P.2d 1001 (1992) (in banc) (apparently rejecting equitable recoupment); Harman’s of Idaho, Inc. v. Idaho State Tax Comm’n, 114 Idaho 740, 760 P.2d 1156 (1988) (will be at least as strict as federal standard); Indiana Dep’t of State Revenue v. Smith, 473 N.E.2d 611 (Ind.1985) (adopting federal standard); Superior Air Prods. Int'l v. Director, Division of Taxation, 9 N.J.Tax 463 (N.J.Tax.Ct.), aff'd 10 N.J.Tax 238 (N.J.Super.Ct.App.Div.1988) (same); May Dep’t Stores Co. v. City of Pittsburgh, 31 Pa.Cmwlth. 398, 376 A.2d 309 (1977) (same); Enterprise Rent-A-Car Co. v. Director of Revenue, No. 92-001701RI, 1993 WL 476505, 1993 Mo.Tax LEXIS 196 (Mo.Admin.Hrg.Com. Nov. 15, 1993) (rejecting equitable recoupment); see also In re Appeal of Northwestern Resources Co., No. 92-240, 1993 WL 98442 (Wyo.St.Bd.Eq. Mar. 25, 1993) (administrative tribunal will not recognize equitable recoupment). In 1959 a California Court of Appeal stated in dictum that California might be less strict than Rothensies in application of the doctrine of equitable recoupment, Independent Iron Works v. State Bd. of Equalization, 167 Cal.App.2d 318, 334 P.2d 236, 242 (1959), but the California Board of Equalization appears to have followed Rothensies for some time now, see In re Appeal of Lipinsky, No. 88R-0291-MW, 1992 WL 366352, 1992 Cal.Tax LEXIS 45 (Cal.St.Bd.Eq. Dec. 3, 1992); In re Appeals of Winkenbach, 1975 WL 3565, 1975 Cal.Tax LEXIS 3 (Cal.St.Bd.Eq. Dec. 16, 1975). In 1949 the New York Court of Appeals adopted a broader version of the doctrine of equitable recoupment than adopted in federal court. National Cash Register Co. v. Joseph, 299 N.Y. 200, 86 N.E.2d 561 (1949). Although (1) the two-paragraph discussion of the subject cites Rothensies in support without suggesting that the court was consciously rejecting the doctrine as expressed in that case, and (2) the opinion has been criticized, see Columbia Note, supra; Note, Taxation — Refunds—Barred Claim for Overpayment of Sales Taxes Recouped Against Tax Deficiency Arising From Other Sales During Same Period, 63 Harv.L.Rev. 369 (1949), the New York appellate courts have not revisited the issue. In any event, the National Cash Register version of equitable recoupment has apparently been followed by Oklahoma, see Estate of Kasishke v. Oklahoma Tax Comm’n, 541 P.2d 848 (Okla.1975), and Wisconsin, see American Motors Corp. v. Wisconsin Dep’t of Revenue, 64 Wis.2d 337, 219 N.W.2d 300 (1974); Dairyland Harvestore v. Wisconsin Dep’t of Revenue, 151 Wis.2d 799, 447 N.W.2d 56 (App.), review denied, 449 N.W.2d 276 (Wis.1989).
Because of the compelling reasons for respecting statutes of limitations in the tax-collection context, see Rothensies, we follow the weight of authority and adopt the standard set forth by the federal courts for application of the doctrine of equitable recoupment to tax collections. In particular, we hold that a taxpayer is not entitled to seek a credit after the statute-of-limitations period has expired unless the state is imposing a tax on the same taxable event on a ground that is inconsistent with the original payment by the taxpayer. This view is not contrary to the New Mexico authorities cited by Vivigen—State ex rel. State Highway Comm’n v. Town of Grants, 69 N.M. 145, 149, 364 P.2d 853, 855 (1961), and Justice Montgomery’s concurrence in Resolution Trust Corp. v. Binford, 114 N.M. 560, 571, 844 P.2d 810, 821 (1992)—neither of which involved taxation or expiration of the statute-of-limitations period.
In the present ease the Department is not seeking to subject Vivigen to double taxation by taking inconsistent positions on the facts or the law. Vivigen seeks an investment credit on the ground that it is a manufacturer. The Department’s position is simply that Vivigen’s out-of-state purchases were subject to the New Mexico compensating tax. Vivigen would have no basis for a claim that the Department’s position on the facts and the law establish that Vivigen is entitled to an offset. No conduct by the State — in particular, no conduct inconsistent with the State’s present contentions — prevented Vivigen from timely claiming an investment credit if one was available. Any equity favoring Vivigen here is not of sufficient magnitude to justify overriding the limitations period of Section 7-9A-8(A). We therefore reject Vivigen’s claim of equitable recoupment.
IV. THE NEGLIGENCE PENALTY
NMSA 1978, Section 7-1-69(A) (Repl. Pamp.1990), provides for the addition of a penalty to any tax due “[i]n the case of failure, due to negligence or disregard of rules and regulations, but without intent to defraud, to pay when due any amount of tax required to be paid or to file by the date required a return regardless of whether any tax is due[.]” The Department assessed this penalty against Vivigen for its total failure to pay any compensating tax for the period in question. The district court set aside the penalty. There was no basis for this ruling.
Vivigen’s chief financial officer testified that she was the person responsible for reviewing Vivigen’s monthly tax returns to the state. She testified that prior to the audit she did not know that New Mexico had a compensating tax. She acknowledged that Vivigen’s failure to pay the tax resulted from her lack of knowledge of state tax law and was not based on any discussion she had with Vivigen’s accountants.
Vivigen’s sole argument on this point is the following:
At all times during the audit period, Vivigen was a public corporation, subject to the reporting rules of the United States Securities and Exchange Commission. As a consequence, its financial affairs were annually audited by KPMG Peat Marwick, and that company certified the accuracy of the financial statements contained in the annual reports to shareholders. There is no explanation for the failure of Vivigen’s bookkeeping system to account for New Mexico compensating tax liability, or for that failure escaping the attention of the auditors. Nevertheless, Vivigen was not negligent in its consistent reliance on an apparently deficient bookkeeping system. TRD Reg. TA 69:4(d). [References to record omitted.]
This response is not persuasive. Apparently, Vivigen’s sole excuse is that the failure to pay compensating use tax was not uncovered by the accountants who certified the accuracy of Vivigen’s financial statements for the annual reports to shareholders required by federal securities law. Vivigen offered no evidence that the outside auditors reviewed Vivigen’s monthly state tax returns and does not explain why the audit for the annual reports should have uncovered failure to pay compensating tax, nor does it explain why the failure of the auditors to discover the error would excuse Vivigen’s failure to comply with clear state law. We therefore reverse the district court’s determination that the penalty assessment was improper.
V. CONCLUSION
We reverse the district court judgment and remand for entry of judgment in accordance with this opinion.
IT IS SO ORDERED.
ALARID, J., concurs.
CHAVEZ, J. dissents.
. Because the buyer (user) must pay a compensating tax on an out-of-state transaction only when the seller would have to pay a gross receipts tax on the transaction if it had occurred within the state, § 7-9-7(A), the deduction from gross receipts provided by Section 7-9-46 also provides a deduction from the compensating tax.
But the Court emphasized that refund of the incorrect tax was not barred by the statute at the time the Government proceeded for collection of the correct tax. | [
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OPINION
BACA, Justice.
Defendants-Appellants, David Ovitz and Jack Ovitz (the “Ovitzes”), appeal from a trial court order granting summary judgment in favor of Plaintiff-Appellee, State Farm Mutual Automobile Insurance Company (“State Farm”), and denying the Ovitzes’ cross-motion for summary judgment. We address one issue on appeal: Whether the trial court erred when it concluded that the Ovitzes were not entitled to uninsured motorist benefits under their State Farm automobile liability insurance policy. We review this case pursuant to SCRA 1986, 12-102(A)(1) (Repl. Pamp.1992), and affirm.
I.
This case arises out of an automobile accident that occurred in Hawaii between two rental cars. On August 9, 1990, David Ovitz was injured when the rental vehicle he was riding in, owned by Dollar Rent-A-Car (“Dollar”), collided with a vehicle owned by Thrifty Rent-A-Car (“Thrifty”). Due to the accident, David sustained injuries that resulted in medical expenses totalling approximately $4759.
Dollar, self-insured under Hawaii’s insurance laws, paid all of David’s medical expenses incurred in the accident. Hawaii, however, is a no-fault state. Under Hawaiian insurance law, tort liability arising from motor vehicle accidents occurring within the state has been abolished, Haw.Rev.Stat. § 431:10C-306(a) (1987), except when the accident results in death, Haw.Rev.Stat. § 431:10C-306(b)(l)(A) (1987), the injury is severe and permanent, see Haw.Rev.Stat. § 431:10C-306(b)(l)(B) & (C) (1987), medical expenses exceed statutorily-defined limits, Haw.Rev.Stat. § 431:10C-306(b)(2) (1987), or when the injury exhausts the aggregate limit of no-fault benefits, Haw.Rev.Stat. § 431:10C-306(b)(3) (1987). Because David’s injuries did not fall within any of these statutorily-defined exceptions to the general abolition of tort liability, the Ovitzes were precluded from bringing a negligence action for noneconomic damages against Thrifty or Thrifty’s employee, who was driving the Thrifty vehicle at the time of the accident. Consequently, the Ovitzes made a claim for uninsured motorist benefits under their State Farm automobile liability insurance policy.
On October 21, 1992, State Farm filed a complaint for declaratory relief, contending that the Ovitzes were not entitled to uninsured motorist benefits under the policy. State Farm requested that the trial court enter judgment declaring that the Ovitzes’ policy did not provide uninsured motorist coverage for the damages arising from the Hawaiian automobile accident. The Ovitzes filed an answer to State Farm’s complaint for declaratory relief on November 9, 1992. In essence, the Ovitzes asserted that because Hawaiian law prohibited suit for David’s pain and suffering, the Thrifty employee was, from David’s perspective, uninsured.
Both parties filed motions for summary judgment in February of 1993. After hearing arguments from both sides, the trial court concluded that (1) New Mexico law applied to determine whether the tortfeasor was uninsured, and (2) under New Mexico law, Thrifty and Thrifty’s driver were not uninsured. The trial court granted State Farm’s motion for summary judgment and denied the Ovitzes’ motion. The judgment was memorialized in a written order filed on May 11, 1993. From this order, the Ovitzes appeal.
II.
This appeal presents a single issue: Whether the trial court erred when it decided that the Ovitzes were not entitled to uninsured motorist benefits under their State Farm automobile liability insurance policy. In essence, the Ovitzes contend that we should adopt the minority view pronounced in Samack v. Travelers Ins. Co., 111 Ill. App.3d 61, 66 Ill.Dec. 839, 443 N.E.2d 765 (Ct.1982). In Samack, a case similar to the case at bar, the plaintiff was injured in Florida when the automobile she was riding in was involved in an accident with another vehicle driven by a Florida motorist. Because the plaintiffs injuries and damages were not actionable under Florida’s no-fault insurance statutes, she sued her own insurer for uninsured motorist benefits. The circuit court granted the defendant insurance company’s motion to dismiss. The Appellate Court of Illinois reversed the dismissal of the plaintiffs complaint, finding that “although the car that struck [the plaintiff] was insured for certain purposes, as to [the] plaintiff in the present case it was uninsured, thereby entitling [the] plaintiff to pursue the insurance proceeds of her own insurance policy for uninsured motorist coverage for which she contracted and paid premiums.” 443 N.E.2d at 769. We decline to adopt the minority view of the Illinois court.
Under the policy of insurance that State Farm sold to the Ovitzes, State Farm agreed to “pay damages for bodily injury or property damage an insured is legally entitled to collect from the owner or the driver of an uninsured, motor vehicle.” (Underline emphasis added; bold in original.) The policy comports with NMSA 1978, Section 66-5-301(A) (Repl.Pamp.1989), New Mexico’s law requiring uninsured motorist insurance, which states:
No motor vehicle or automobile liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person ... shall be delivered or issued for delivery in New Mexico ... unless coverage is provided ... in minimum limits for bodily injury or death ... up to the limits of liability specified in ... the insured’s policy, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles____
(Emphasis added.) We hold that State Farm is not obligated to pay uninsured motorist benefits to the Ovitzes because David was not injured by an uninsured motorist and the Ovitzes were not “legally entitled to collect” noneconomic damages under Hawaii’s no-fault insurance statutes.
A.
The parties initially dispute whether we should apply New Mexico or Hawaiian law to this ease. We conclude that in certain respects, the law of both states applies. It appears from the record that Ovitz and State Farm entered into the insurance contract in New Mexico. Thus, the law of New Mexico governs the interpretation of the contract. See Eichel v. Goode, Inc., 101 N.M. 246, 250, 680 P.2d 627, 631 (Ct.App.1984). However, the rights and liabilities of persons injured in automobile accidents are determined under the laws of the state where the accident happened. First Nat’l Bank v. Benson, 89 N.M. 481, 553 P.2d 1288 (Ct.App.), cert. denied, 90 N.M. 7, 558 P.2d 619 (1976). Under this rule of law, reference must be made to the statutes of Hawaii to determine whether the Ovitzes are “legally entitled to collect” from Thrifty or Thrifty’s employee, and thereby entitled to uninsured motorist benefits under the State Farm policy. See State Farm Mut. Auto. Ins. Co. v. Crockett, 103 Cal.App.3d 652, 163 Cal.Rptr. 206, 208 (Ct.App.1980); Blais v. Aetna Casualty & Sur. Co., 526 A.2d 854, 856 (R.I.1987).
B.
We first conclude that recovery of uninsured motorist benefits is barred because David was not injured by an uninsured vehicle. It is undisputed that Thrifty, the owner of the automobile that injured David, was self-insured under Hawaiian law. Hawaii requires a self-insured owner to provide “a surety bond, proof of qualifications as a self-insurer, or other securities affording security substantially equivalent to that afforded under a no-fault policy.” Haw.Rev.Stat. § 431:100-105(1) (1987). The minimum liability coverage for bodily injury required under a no-fault policy — the amount that Thrifty would need to qualify as a self-insurer — was $35,000. Haw.Rev.Stat. § 431:10C-301(b)(1) (1987). Thus, Thrifty was not only insured under Hawaiian law, but met the minimum bodily injury insurance coverage requirements under New Mexico law. See NMSA 1978, § 66-5-208(A) (Repl. Pamp.1989) (requiring automobile insurance coverage of $25,000 to cover “bodily injury to or death of one person in any one accident”). We are unpersuaded by the Ovitzes’ argument that Thrifty was “uninsured” because under their circumstances noneconomic damages are not recoverable under Hawaiian law. It was not a lack of insurance on Thrifty’s part that restricted the legal liability of Thrifty and its driver — rather it was the law of Hawaii that had that effect. See Crossley v. Pacific Employers Ins. Co., 198 Neb. 26, 251 N.W.2d 383, 385 (1977); Blais, 526 A.2d at 857.
C.
We also hold that State Farm was not required to pay benefits under the uninsured motorist provisions of the policy because the Ovitzes were not “legally entitled to collect” noneconomic damages. Motorists driving in Hawaii accept and abide by Hawaiian law as it pertains to accidents occurring in Hawaii. Cf. Kurent v. Farmers Ins., Inc., 62 Ohio St.3d 242, 581 N.E.2d 533, 536 (1991). As the Supreme Court of Ohio noted:
[An Ohio] motorist [traveling in Michigan] does not have the option, for example, of claiming that Ohio’s speed limit or traffic laws govern simply because the motorist resides in Ohio. The notion that Ohio law somehow controls the amount of damages flowing from torts committed on Michigan highways is akin to a contention that a Michigan resident who commits murder in Ohio is exempt from the death penalty because Michigan does not recognize capital punishment.
Id.
In the instant case, Hawaii’s automobile insurance laws in effect at the time David Ovitz was injured prevented the Ovitzes from filing suit for noneconomic damages. Consequently, under Hawaiian law, the Ovitzes are not “legally entitled to collect” such damages. Because the Ovitzes’ insurance contract with State Farm requires that they be “legally entitled to collect” damages in order to receive benefits under the uninsured motorist provision, they cannot recover such benefits under the policy. See Crockett, 163 Cal.Rptr. at 209; Crossley, 251 N.W.2d at 386; Kurent, 581 N.E.2d at 536; Blais, 526 A.2d at 857.
Citing Romero v. Dairyland Ins. Co., 111 N.M. 154, 156, 803 P.2d 243, 245 (1990), the Ovitzes argue that our uninsured motorist statute must be construed liberally to afford compensation for parties injured through no fault of their own, and that the statute’s language “should be construed strictly to protect the insured.” We agree that the purpose of Section 66-5-301 is to “protect individual members of the public against the hazard of culpable uninsured motorists.” Romero, 111 N.M. at 156, 803 P.2d at 245. However, permitting recovery in this ease would unduly expand the meaning of this principle. While it is important to protect the public from “irresponsible or impecunious drivers,” uninsured motorist coverage is “not intended to provide coverage in every uncompensated situation.” Kurent, 581 N.E.2d at 536. The Ovitzes’ uninsured motorist coverage does not by its terms provide coverage “where [an] insured tortfeasor-motorist is immune from liability pursuant to statutory immunity.” Id. We hold that the trial court correctly decided that the Ovitzes were not entitled to collect uninsured motorist benefits under their State Farm automobile liability insurance policy. The judgment of the trial court is AFFIRMED.
IT IS SO ORDERED.
RANSOM and FROST, JJ., concur. | [
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OPINION
BACA, Justice.
Plaintiff-Appellant, Dave Zerwas Company (“Zerwas”) appeals from the judgment entered in favor of Defendant-Appellee, James Hamilton Construction Company, (“Hamilton”). Zerwas filed suit against Hamilton alleging that Hamilton owed Zerwas a real estate commission and gross receipts tax based on an exclusive real estate listing contract. On appeal we address one issue: Whether conduct alone can serve as consent to the cancellation of an exclusive listing contract when the exclusive listing contract is within the Statute of Frauds, NMSA 1978, § 47-1-45 (Repl.Pamp.1991). We review this case pursuant to SCRA 1986, 12-102(A)(1) (Repl.Pamp.1992), and affirm.
I
On December 4, 1989, Hamilton and Zerwas entered into an Exclusive Right to Sell/ Lease Contract (hereinafter “the Agreement”). The Agreement provided for a ten percent commission on the sale price of the property plus the applicable gross receipts tax on the commission if the property sold between December 1,1989, and December 1, 1990. B.R. Fjord, a salesman for Zerwas, was the active agent on the Hamilton property and communicated offers to Hamilton made by prospective purchasers. Because none of these offers were for cash, Hamilton turned them all down. Zerwas had informed Fjord that he preferred to sell the property for cash. Fjord’s marketing of the property included placing a sign on the property measuring four feet by eight feet, making phone calls, and running a single ad in the local newspaper for one day. At the end of March 1990, Fjord lost his driver’s license due to a DWI conviction and took an extended leave of absence from Zerwas. Hamilton was unaware that Fjord had ceased working for Zerwas and Hamilton did not receive any correspondence from Zerwas or Fjord until May 4, 1990. Pursuant to a clause in the Agreement providing for cancellation of the listing with consent of the broker (Zerwas), on March 3, 1990, Hamilton, through its secretary/treasurer, L.H. Rogers, wrote to Zerwas stating that Hamilton wished to cancel the Agreement effective with the date of the letter. After Zerwas received Hamilton’s letter stating his intention to cancel the Agreement, Zerwas called Hamilton and requested a thirty day extension of time to follow up on the possible sale of the property to a buyer named Sanchez. Hamilton agreed to the thirty day extension and also agreed to an additional thirty day extension that Zerwas requested by letter dated May 25, 1990, to allow Sanchez time to complete his financing.
On June 6,1990, Johnnie Head, a salesman for Zerwas, told Hamilton that Sanchez had not received the appropriate financing. That same day, Roxanne Fields, an agent of Hamilton, signed an exclusive listing agreement with Jackie Fisher, a real estate broker in Cibola County, for the sale of the property originally listed with Zerwas. From June 6, 1990, through August 1990, Zerwas did not attempt to market the Hamilton property in any way and no purchasers were procured for the property by Zerwas. Jackie Fisher, however, showed the property to representatives of the Cibola County Commission (“the County”) in an effort to market the property to the County for a County Road Department. At a County meeting in mid-August 1990, Ben Aragon, a representative of Jackie Fisher, presented Hamilton’s property for the potential housing of their road department. At the same meeting, Head, Zerwas’s representative, presented another piece of property as a potential location for the road department. The County selected and approved the Hamilton property and purchased it for $232,000.
Zerwas filed suit against Hamilton for his commission and gross receipts tax on the sale of the property. Zerwas then filed a motion for summary judgment, which was denied, and the merits of the case were tried to the court below without a jury. The trial court entered judgment for Hamilton finding that Zerwas consented to Hamilton’s cancellation of the contract through its actions. Zerwas appeals from that judgment.
II
On appeal we address whether Zerwas, by its conduct, consented to Hamilton’s request that the Agreement be cancelled. Zerwas first argues that Hamilton could not cancel the exclusive listing contract. This argument is easily disposed of because Zerwas provided a cancellation clause in the Agreement. Hence, Hamilton had the ability to cancel the Agreement. The question left before this Court is whether consent to the cancellation by Zerwas was required to be in writing to be effective. Zerwas relies on this Court’s opinion in Yrisarri v. Wallis, 76 N.M. 776, 418 P.2d 852 (1966), and argues that because the Agreement comes within the Statute of Frauds, any cancellation of the written contract is also required to be in writing. We cannot agree.
First, we find Zerwas’s reliance on Yrisarri to be misplaced. Yrisarri dealt with the modification of a real estate brokerage agreement, not the cancellation or rescission of one. The Yrisarri Court property held that a modification to an agreement within the Statute of Frauds must be in writing. Such a modification must be in writing because it is, in essence, a new agreement and must therefore meet the requirements of the Statute of Frauds. Here, however, the question before this Court involves the cancellation of a real estate brokerage agreement.
The Agreement between Hamilton and Zerwas provided that “Cancellation of this listing can only be made with the consent of the listing [broker].” Hamilton wrote to Zerwas on May 3, 1990, requesting that the Agreement be cancelled. Zerwas asked Hamilton for sixty more days because he had a prospective buyer who had not yet obtained the necessary financing. After the sixty days had passed and the prospective buyer did not receive the proper financing, Zerwas did not attempt to market the property further. In fact, Zerwas did not complain when Jackie Fisher removed Zerwas’s sign from the property and competed with Jackie Fisher by presenting a different property to the County for their road department. Moreover, at no time prior to the County’s purchase of the Hamilton property did Zerwas express concern that Jackie Fisher had undertaken the marketing of the property. The majority rule recognizes that “a written executory contract within the Statute of Frauds may be rescinded orally.” John D. Calamari and Joseph M. Perillo, Contracts § 19-37 (3d ed. 1987); see also 72 Am.Jur.2d Statute of Frauds § 282 (1974) (stating that “the trend of modern authority seems to be toward the view that an oral rescission of an executory contract is valid notwithstanding that the contract rescinded was one required by the statute of frauds to be in writing.”); Restatement (Second) of Contracts § 148 (1981) (stating that “[n]otwithstanding the Statute of Frauds, all unperformed duties under an enforceable contract may be discharged by an oral agreement of rescission.”); 4 W. Jaeger, Williston on Contracts § 592 (3d ed. 1961) (stating' that “[i]f an executory contract is within the Statute of Frauds and is in writing ... a subsequent oral agreement to rescind the contract is effectual if the oral agreement fulfills the requisites of a contract at common law.”); 2 Corbin on Contracts § 302 (1950) (same). We agree with the Appellate Court of Illinois that “[e]xpress notice of the termination of the agency is not essential if the agent knows, has reason to know, or should know of such fact or has been given notification of the occurrence of an event from which the inference of termination could reasonably be drawn.” Coldwell Banker v. Jepsen, 172 Ill.App.3d 662, 122 Ill.Dec. 707, 710, 527 N.E.2d 79, 82 (2d 1988). Although the Illinois Appellate Court held in favor of the broker, finding that the vendor had only requested that the home be taken off of the market because the vendor no longer wished to sell, the Illinois court also stated that “[h]ad it been undisputed that the defendant told [the broker] he wished to cancel the ‘listing,’ the exclusive listing contract would have been effectively revoked.” Id. Hamilton informed Zerwas by letter that he wished to cancel the Agreement. Zerwas requested sixty additional days because he had a prospective buyer. When the prospective buyer failed to obtain financing, Zerwas ceased all marketing of the property and ceased all correspondence with Hamilton until after the property was sold by Jackie Fisher. We agree with the trial court that through its actions, Zerwas effectively consented to the cancellation of the Agreement pursuant to the provision for cancellation provided for in the Agreement between Hamilton and Zerwas.
Zerwas suggests that the whole purpose behind the Statute of Frauds would be abrogated were this Court to allow the cancellation of an exclusive listing contract through conduct alone. We disagree and direct the parties to Justice Spear’s well-reasoned dissent in Givens v. Dougherty, 671 S.W.2d 877, 879-880 (Tex.1984) (Spears, J., dissenting). In his dissent, Justice Spears disagreed with the majority opinion that a listing agreement cannot be orally rescinded and stated that “ ‘[[t]he] purpose [of the statute] is to prevent fraud arising from parol testimony as to the terms and conditions of such contract.’ In other words, the purpose of the Statute of Frauds is to fix the specific terms of the agreement between the parties. Here, on the other hand, there is no dispute as to the terms; the question is whether the contract has been discharged.” Id. at 879 (quoting Denman v. Hall, 144 Tex. 633, 193 S.W.2d 515, 516 (1946)). Accordingly, the judgment of the trial court is AFFIRMED.
IT IS SO ORDERED.
MONTGOMERY, C.J., and FRANCHINI, J., concur.
. Zerwas also asserts that the trial court erred in dismissing James Hamilton individually and substituting James Hamilton Construction Company as Defendant. Our resolution of the primary issue in this case obviates the need to address that issue as no liability on the part of either James Hamilton individually or James Hamilton Construction Company will ensue.
. We also find Zerwas’s argument that parol evidence is not admissible to show cancellation of the contract meritless. Zerwas relies on Yrisarri for this argument. A proper reading of Yrisarri, however, reveals that parol evidence is not admissible to “contradict, vary, modify, or add to a written agreement.” 76 N.M. at 779, 418 P.2d at 854 (quoting Maine v. Garvin, 76 N.M. 546, 550, 417 P.2d 40, 43 (1966). We fail to see how the evidence surrounding the cancellation of the Agreement pursuant to a cancellation clause provided for in the Agreement implicates the parol evidence rule. | [
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OPINION
DONNELLY, Judge.
Petitioner appeals from an order denying her petition for a writ of habeas corpus to obtain custody of her nine-year-old daughter, and granting Petitioner’s father and stepmother’s (Grandparents) counterclaim for guardianship of the child. We discuss: (1) whether the district court’s 1988 order appointing Grandparents guardians of the child was void for lack of jurisdiction; and (2) whether the district court had jurisdic tion in the instant case to continue custody of the child in Grandparents and to appoint them as guardians. We reverse and remand for further proceedings consistent with this opinion.
FACTS
Petitioner, a resident of California, contacted Grandparents in 1988 and arranged for her daughter to stay with them in New Mexico. Petitioner informed Grandparents that she believed the police were investigating her for the possession or sale of drugs. The child was sent to New Mexico on August 15, 1988. Shortly after the child’s arrival, Grandparents filed a petition (Cause No. CB-88-19-PB) on September 23, 1988, with the district court in Cibola County requesting that they be appointed as guardians of the child, and alleging that they were unable to locate Petitioner at any known address and that service by publication “would not serve * * * the interest of [Grandparents or Petitioner in notifying] * * * mother of this action.” No copy of the petition or summons in the action was served upon Petitioner.
At the time of filing the petition in the 1988 action, Grandparents attached an undated document signed by Petitioner authorizing them “to sign any papers for medical reasons.” This document contained an address for Petitioner and a telephone number. Grandparents obtained an order appointing them as guardians of the child on the same day their petition was filed. On September 27, 1988, Petitioner mailed a document to Grandparents which stated that she was giving them temporary custody of her daughter “until further written agreement.” No subsequent written consent to custody of the child was given by Petitioner.
On June 10, 1989, Petitioner came to New Mexico, obtained the child, and returned with her to California. Grandfather testified that Petitioner stated that she was going to take the child on a vacation and that thereafter they could pick up the child in California and return with her to New Mexico. After returning to California, however, Petitioner failed to relinquish custody of the child to Grandparents or make any effort to contact them. On September 12, 1989, Grandparents petitioned the California Superior Court for custody of the child based upon the 1988 order of guardianship issued by the New Mexico court. Pursuant to an order of the California Superior Court, Grandparents obtained physical custody of the child the following day and returned with her to New Mexico.
On February 12, 1990, Petitioner filed a petition for writ of habeas corpus in the present case to obtain custody of the child. Grandparents responded by filing an answer and a counterclaim denying Petitioner’s right to custody, alleging that she was unfit, and requesting that they be appointed guardians of the child. At the hearing on the merits, Grandfather testified, among other things, that the child’s natural father was deceased; that Petitioner frequently changed her place of residence; and that she had previously used controlled substances. Grandparents also introduced evidence that prior to the time the child had been sent to stay with them, the child had been abused and neglected while in Petitioner’s custody; that the child was underweight and in need of medical and psychological care; and that the child had been sexually abused by Petitioner’s boyfriend, and that such abuse and neglect would in all likelihood continue if the child was returned to Petitioner.
At the conclusion of the hearing, the district court adopted findings of fact and conclusions of law, and entered a judgment denying Petitioner’s petition for writ of habeas corpus and granting Grandparents’ counterclaim for guardianship of the child. In adopting its findings, the court found that it had personal jurisdiction over Petitioner and the child; that the court had subject matter jurisdiction to hear Grandparents’ counterclaim for guardianship in the instant case; that Petitioner had consented to the 1988 guardianship petition by Grandparents; that the child had been abandoned, abused, and ■ neglected and would continue to be abused if returned to Petitioner’s custody; and that it was in the child’s best interests that she remain in the custody of Grandparents. Based upon its findings and conclusions, the court entered an amended judgment denying Petitioner's petition for writ of habeas corpus and granting Grandparents’ counterclaim for guardianship.
DISCUSSION
Petitioner’s arguments asserted on appeal are interrelated. She contends that the order appointing Grandparents guardians of her daughter in 1988 was void because Grandparents failed to obtain service upon her. She also argues that because the New Mexico court did not have jurisdiction in Cause No. CB-88-19-PB to appoint Grandparents as guardians of the child, the order appointing them as guardians in that case was improperly used by Grandparents in California to regain custody of the child. She further asserts that the district court in the present ease abused its discretion in refusing to dismiss Grandparents’ counterclaim for appointment as guardians because the court’s decision in this case relied in part on the mistaken assumption that the prior 1988 guardianship order was valid. Petitioner additionally argues that the district court in the present case erred in failing to find that under Section 40-10-9 of the New Mexico Child Custody Jurisdiction Act (CCJA), NMSA 1978, §§ 40-10-1 to -24 (Repl.Pamp.1989), California was the home state of the child.
I. Was the 1988 Guardianship Order Valid?
Petitioner claims that the district court in the instant case erred in failing to return custody of the child to her and in issuing its order appointing Grandparents as guardians of the child because the 1988 guardianship proceeding was void. Petitioner primarily argues that the district court in the 1988 proceeding lacked jurisdiction because she did not receive proper service notifying her of the action. Grandparents claim that the district court in both New Mexico proceedings had jurisdiction over the child and Petitioner under the CCJA.
It is undisputed that Petitioner was never served with notice of the pendency of the guardianship proceedings in the 1988 action prior to the issuance of the order appointing Grandparents as guardians. We agree that because Grandparents failed to obtain proper service upon Petitioner in the initial guardianship proceeding, or to obtain her valid written entry of appearance or waiver of service in such action, Petitioner was not precluded from challenging the validity of the 1988 guardianship decree. A guardianship action which deprives a parent of custody of a minor child without notice and opportunity to be heard does not bar the parent from challenging such order and asserting his or her right to custody. See Guardianship of Debbie V., 182 Cal.App.3d 781, 227 Cal. Rptr. 554 (1986); Ex parte Englebert, 70 S.D. 467, 18 N.W.2d 794 (1945). See generally J. Sherman, Annotation, Right of Parent to Notice and Hearing Before Being Deprived of Custody of Child, 76 A.L.R. 242 (1932).
Section 40-10-5 of the CCJA provides:
Before making a decree under the Child Custody Jurisdiction Act, reasonable notice and opportunity to be heard shall be given to ... any parent whose parental rights have not been previously terminated and any person who has physical custody of the child. If any of these persons are outside New Mexico, notice and opportunity to be heard shall be given pursuant to Section [40-10-6]____
Section 40-10-6(A) of the CCJA also specifies that “[n]otice required for the exercise of jurisdiction over a person outside New Mexico shall be given in a manner reasonably calculated to give actual notice * * (Emphasis added.) We think it is clear that where jurisdiction is sought to be established under the CCJA, a petitioner must obtain service upon the other parties entitled to such notice by affirmatively undertaking to give notice and obtain service upon other interested parties as contemplated by Section 40-10-6. Grandparents failed to comply with the provisions of Section 40-10-6 prior to obtaining appointment as guardians in the 1988 proceeding.
Similarly, we also agree with Petitioner that service of process was not made in the 1988 proceeding upon her as required by the Probate Code. NMSA 1978, Section 45-5-207(A)(3) (Repl.Pamp.1989) requires that notice to a living parent “is to be given by the petitioner in the manner prescribed by Section [45-1-401].” NMSA 1978, Section 45-l-401(A) (Repl.Pamp.1989) authorizes notice to be given by certified, registered, or ordinary first class mail; in the manner authorized by the Rules of Civil Procedure for service of summons and complaint in civil actions; or by publication if the address of the party to be served cannot be ascertained with reasonable diligence. Grandparents claim that they could not serve Petitioner because she did not provide them with a current address. However, it is undisputed that the document given to Grandparents authorizing them to sign papers for medical reasons included Petitioner’s address and telephone number, and Grandparents made no attempt to notify Petitioner in any way, including publication.
Grandparents alternatively argue that even if service was not properly obtained upon Petitioner in the 1988 guardianship proceeding, she nevertheless waived notice and service of process therein because she expressly consented to Grandparents’ appointment as guardians. To support this argument, Grandparents point to Petitioner’s failure to object to their appointment as guardians and to two documents written by Petitioner that purportedly gave Grandparents full custody of the child. We find nothing in the record to support a finding that Petitioner waived service or notice of the proceedings therein. See NMSA 1978, § 45-1-402 (Repl.Pamp.1989) (waiver of notice must either be in writing signed by individual and filed in the proceeding, or shown by party's appearance in the proceeding); see also Elder v. Park, 104 N.M. 163, 717 P.2d 1132 (Ct.App.1986) (absent reasonable notice to contestants in custody proceeding and opportunity to be heard, decree may be unenforceable). Additionally, we conclude that Petitioner’s handwritten document authorizing Grandparents to sign any necessary papers for “medical reasons” for the child was insufficient to constitute consent to relinquish complete custody of her child to Grandparents. Nor was such document sufficient to constitute a valid waiver of notice or consent by her to submit to jurisdiction under Section 40-10-6(D). See Christian Placement Serv., N.M. Christian Children’s Home v. Gordon, 102 N.M. 465, 697 P.2d 148 (Ct.App.1985) (waiver involves intentional abandonment of known right). Grandparents further argue that the document dated September 27, 1988, stating that they had temporary custody of the child “until further written agreement,” indicates that Petitioner waived notice and service of process. However, Section 45-1-401(C) requires that “[p]roof of the giving of notice shall be made on or before the hearing and filed in the proceeding.” This document is dated four days after the guardianship hearing and was never filed. Thus, it was insufficient to provide a basis for a waiver on the part of Petitioner to the guardianship action.
Grandparents also contend that the September 27, 1988, document dated four days after their appointment as guardians, consenting that they have temporary custody of the child “until further written agreement,” is independently enforceable in contract against Petitioner. None of the authorities cited by Grandparents, however, supports a finding that such an agreement was sufficient to confer jurisdiction over Petitioner in the 1988 guardianship action. Since Grandparents failed to obtain service of process upon Petitioner or a waiver thereof, as required by the Probate Code or the CCJA, we conclude that the judgment in the 1988 proceeding was subject to challenge by Petitioner. See Normand v. Ray, 107 N.M. 346, 758 P.2d 296 (1988) (judgment of adoption procured without adequate service of process held void); cf. State ex rel. Hockenhull v. Marshall, 58 N.M. 286, 270 P.2d 702 (1954) (natural father who was not served with notice of guardianship proceedings initiated by great-grandparents for appointment as guardians of child held entitled to hearing on his right to custody as matter of right).
Having found that the 1988 order appointing Grandparents as guardians of the child was subject to challenge by Petitioner, we next examine the effect of this determination upon the district court’s judgment entered in the instant case.
II. Counterclaim for Award of Guardianship
Petitioner challenges the validity of the order entered in the present case denying her petition for habeas corpus and appointing Grandparents guardians of her child. She contends that the district court in this proceeding was not vested with jurisdiction under Section 40-10-4 of the CCJA or under NMSA 1978, Section 45-5-204 (Repl.Pamp.1989) of the Probate Code, empowering it to grant Grandparents’ counterclaim for guardianship.
In advancing these arguments, Petitioner claims that the district court erred in failing to determine under the CCJA that California is the home state of the child and that New Mexico was not the proper forum to entertain Grandparents’ action for guardianship. Based upon the record before us, we think the district court in the instant case was properly invested with jurisdiction to determine custody issues involving the child. Even if we were to assume arguendo that Petitioner had a right to preemptive jurisdiction in California under the CCJA, we conclude that the district court here could properly determine that she lost such right by combination of her failure to pursue her remedies in California and her decision to file her habeas corpus petition in New Mexico. See Slidell v. Valentine, 298 N.W.2d 599 (Iowa 1980). Petitioner’s voluntary placement of her child with Grandparents in this state, and allowing the child to remain in New Mexico for almost ten months prior to seeking her return, provides a proper basis for the court’s determination that the child had a significant connection with this state so as to enable the court to exercise jurisdiction over the child. Moreover, because Petitioner initiated custody proceedings in this state, Grandparents were entitled to assert their defenses to Petitioner’s claims, in fact or law, in an answer and by counterclaim. See SCRA 1986, 1-012(B) (Cum. Supp. 1991); see also Oleen v. Oleen, 15 Utah 2d 326, 392 P.2d 792 (1964) (involving petition for habeas corpus filed by grandparent and counterclaim for custody of minor child by natural father).
The habeas corpus petition brought by Petitioner sought to have the district court return the child to her custody. Her petition alleged, among other things, that Grandparents were unfit to have custody and control of the child; that she is the proper person to be awarded custody; and that the best interests and welfare of the child would be furthered by returning her to the Petitioner’s custody. Thus, Petitioner raised the very issues she now claims the district court had no jurisdiction to decide.
The best interests of the child also constitute an important factor in resolving jurisdictional issues. See § 40-10-8(B) (finding of inconvenient forum may be made on motion of guardian ad litem); § 40-10-8(C) (court in resolving issue as to whether New Mexico is an inconvenient forum must also consider whether it is in the interests of the child that another state assume jurisdiction). The child’s welfare is a prime consideration irrespective of the legal rights of the competing parties. See Normand v. Ray; see also Greene v. French, 97 N.M. 493, 641 P.2d 524 (Ct.App.1982) (best interest of the child is always a fundamental consideration in the determination of custody).
We agree with Grandparents that the district court correctly concluded that it had jurisdiction in the present case under the provisions of the CCJA. The CCJA grants jurisdiction in the district court to make decisions involving child custody. § 40-10-4. Although the Act does not expressly refer to guardianship proceedings of children, courts in other states that have adopted the CCJA have held that the Act applies to guardianship proceedings. In re Estate of Patterson, 652 S.W.2d 252 (Mo.Ct.App.1983); In re Guardianship of Wonderly, 67 Ohio St.2d 178, 423 N.E.2d 420 (1981); In re Guardianship of Wall ing, 727 P.2d 586 (Okla.1986). Grandparents counterclaimed for guardianship of the child, thus making Petitioner’s habeas corpus petition a guardianship proceeding.
Petitioner additionally argues that even if the district court in the present case was invested with jurisdiction under the CCJA to adjudicate Grandparents’ counterclaim seeking appointment as guardians of the child, it erroneously premised its award of guardianship under authority contained in the Probate Code. A court may appoint a guardian for a minor under Section 45-5-204(A) of the Probate Code “if all parental rights of custody have been terminated or suspended by [1] circumstances or [2] [by] prior court order.” Id.; see also In re Guardianship Petition of Lupe C., 112 N.M. 116, 812 P.2d 365 (Ct.App.1991).
Because we have determined that the guardianship order issued by the court in the 1988 action was voidable as against Petitioner, it cannot be considered a valid order terminating her right to custody of the child under Section 45-5-204(A). Additionally, since Petitioner contested Grandparents’ appointment as guardians of the child in the present case, her right to custody could not be deemed to have been “suspended by circumstances” within the contemplation of Section 45-5-204(A). See In re Guardianship Petition of Lupe C. (adoptive mother’s custody rights to child not subject to involuntary divestiture under Probate Code); see also In re Guardianship of Aschenbrenner, 182 Mont. 540, 597 P.2d 1156 (1979) (guardianship proceeding is not proper means to involuntarily terminate parent’s right to custody of children); In re Guardianship of Marshall, 731 P.2d 5 (Wash.Ct.App.1986) (same); cf. Stansell v. Superior Court, 125 Ariz. 82, 607 P.2d 959 (1980) (en banc) (parents’ rights held suspended by circumstances when parents consent to appointment of guardian); In re Guardianship of Diamond, 109 Idaho 409, 707 P.2d 520 (Ct.App.1985) (parents’ rights are deemed suspended by circumstances when whereabouts of parents are unknown).
Although the initial order of guardianship in the 1988 proceeding did not bar Petitioner from seeking custody in this action, we think it is clear that the district court had jurisdiction under the CCJA to determine whether it should continue custody of the child in Grandparents. See § 40-10-4(A). Section 40-10-4(A)(3)(b) provides that a district court of New Mexico has jurisdiction to “make a child custody determination by initial decree or modification decree of a prior decree of another court” if “the child is physically present in New Mexico and * * * it is necessary in an emergency to protect the child because [she] has been subjected to or threatened with mistreatment or abuse or is otherwise neglected[.]” We believe the child’s presence in New Mexico and Grandparents’ allegations that the child had been previously abused while in Petitioner’s custody were sufficient to confer jurisdiction to determine child custody in the district court pursuant to Section 40-10-4(A)(3).
In New Mexico, while a district court is invested with subject matter jurisdiction to grant a petition for guardianship of a minor or to adjudicate custody disputes between parents and non-parents involving children, except as provided in the Children’s Code, NMSA 1978, Section 32-1-58 (Repl.Pamp.1989), over objection of a parent, guardianship proceedings are not the proper means to involuntarily terminate a parent’s right .to custody of his or her children. In re Guardianship of Aschenbrenner. In adjudicating competing custody claims between a parent or parents, and third parties, if the court determines that a child’s custody should be placed with a non-parent, it is not a requirement that the court also issue letters of guardianship to the parties awarded custody. Although custody issues constitute a component of guardianship proceedings involving a minor child, the court may award or continue custody in third parties without issuing letters of guardianship. See Shorty v. Scott, 87 N.M. 490, 535 P.2d 1341 (1975) (discussing factors to be considered in child custody dispute between parent and grandparents); see also In re Green, 178 Neb. 207, 132 N.W.2d 380 (1965) (writ of habeas corpus is proper proceeding for deciding custody of child between parent and grandparent).
In Shorty our supreme court recognized that in child custody eases, where the opposing parties consist of a natural parent or parents on one side and the grandparents or other persons having no permanent or legal right to the custody of the child on the other, a district court has jurisdiction to adjudicate the child’s custody. In such cases, a presumption exists that “the welfare and best interests of the minor child will best be served in the custody of the natural parents and casts the burden of proving the contrary on the non-parent.” Id., 87 N.M. at 493, 535 P.2d at 1344; see also Greene v. French (burden is on non-parent in child custody case to produce current evidence of parent’s unfitness); cf. Fisher v. Fisher, 99 Nev. 762, 670 P.2d 572 (1983) (welfare of child is superior to claim of parent in dispute between parent and non-parent).
Here, there is no evidence that Petitioner’s parental rights were “terminated” by prior court order or “suspended by circumstances” under Section 45-5-204(A) of the Probate Code. The court’s order in the instant case appointing Grandparents guardians of the child was erroneously premised on a finding that the 1988 order issued in the initial guardianship proceedings was enforceable against Petitioner and that appointment of Grandparents as guardians in this case was authorized under Section 45-5-204(A). We conclude these errors necessitate reversal of the court’s judgment and remand for a new trial on Petitioner’s application seeking custody of the child. On remand, Grandparents should be permitted to amend their - counterclaim to seek the issuance of letters of guardianship pursuant to the provisions of the Children’s Code, see In re Guardianship Petition of Lupe C., or, alternatively, to seek award of child custody without seeking their appointment as guardians of the child, see Shorty v. Scott. Because of the nature of the competing custody claims, on remand, the district court should determine whether appointment of a guardian ad litem is necessary to protect the interests of the child. Cf. Lopez v. Lopez, 97 N.M. 332, 639 P.2d 1186 (1981) (court should determine whether best interests of child require appointment of guardian ad litem to protect child’s interests).
Because we determine that the amended judgment should be reversed and remanded for a new trial, we do not address Petitioner’s other contentions regarding the sufficiency of the evidence.
CONCLUSION
The amended judgment is reversed and the cause is remanded for further proceedings consistent herewith.
IT IS SO ORDERED.
APODACA and CHAVEZ, JJ„ concur. | [
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OPINION
APODACA, Judge.
The New Mexico Taxation and Revenue Department (the Department) appeals from an order of the district court granting summary judgment to Raytheon Services Industry (Raytheon) and Laguna Industries, Inc., (Laguna) and denying the Department’s own motion for summary judgment. The order required the Department to refund gross receipts taxes paid by Raytheon on services performed for Laguna on the Laguna Pueblo (the Pueblo), an Indian reservation. The primary issue on appeal is whether the Indian trader statutes, 25 U.S.C. §§ 261 to 264 (1988), preempt the Department’s authority to impose a gross receipts tax on Raytheon. Under a second issue, in support of its argument against the district court’s denial of the Department’s motion for summary judgment, the Department argues that no other federal statutes preempt state taxation on the services rendered.
The United States Supreme Court, in Warren Trading Post Co. v. Arizona Tax Commission, 380 U.S. 685, 85 S.Ct. 1242, 14 L.Ed.2d 165 (1965), and Central Machinery Co. v. Arizona State Tax Commission, 448 U.S. 160, 100 S.Ct. 2592, 65 L.Ed.2d 684 (1980), held that the Indian trader statutes preempted a similar tax in connection with transactions involving a sale of goods. We hold that the Indian trader statutes govern trade in services as well as trade in goods. The Department concedes that if we so interpret those statutes, the holdings of Warren Trading Post and Central Machinery compel the conclusion that the Indian trader statutes preempt the taxes imposed by the Department on Raytheon. Because we conclude that the statutes govern trade in services, it becomes unnecessary for us to address the Department’s second issue to determine whether other federal legislation has preempted the Department’s authority to impose the tax. We affirm the district court’s decision.
BACKGROUND
1. Facts.
Laguna Industries, Inc., is a New Mexico corporation wholly owned by the Pueblo of Laguna, an Indian tribe organized under the Indian Reorganization Act, 25 U.S.C. § 476 (1988 & Supp.1992). In the early 1980s, the Pueblo sought to invest capital accumulated from uranium mining operations and to find employment for tribal members who were unemployed because of the decline of the uranium industry. To accomplish this purpose, the Pueblo incorporated Laguna with the goal of obtaining federal contracts from the Department of Defense (DOD). To assure DOD that Laguna would be competent to handle these contracts, Laguna contracted with Raytheon, a major defense contractor, for technical, training, and management assistance.
From the Pueblo itself, Laguna received capital investment, a line of credit, and the use of a Pueblo-owned building. Laguna also received assistance, including grants, from various federal programs, including the Administration for Native Americans (ANA) within the Health and Human Services Department, the Small Business Administration (SBA), DOD, the Bureau of Indian Affairs (BIA), and Congress.
Some of the funds for the establishment of Laguna came from an ANA economic development grant of $655,140 to the Pueblo, conditioned on the Pueblo’s receiving a DOD contract under the Buy Indian Program. Other funds were a BIA grant of $500,000, matching funds from the Pueblo of $900,000, a line of credit of $1,500,000 from the Pueblo, a loan from the Pueblo of $127,000, a Pueblo-owned building valued at $1,600,000, and federal funding under the Job Training Partnership Act, 29 U.S.C. §§ 1501 to 1781 (1988) (JTPA), that totalled $147,344.
For more than two years, Raytheon employees worked with Laguna employees on the reservation to provide technical assistance in setting up and operating the business and ensuring quality work. Laguna paid Raytheon from the ANA grant, the Pueblo line of credit and Laguna’s operating profits, the BIA grant, and the JTPA funding. The Raytheon employees lived in Albuquerque and commuted daily to the reservation. Raytheon paid gross receipts tax on its receipts from the contract with Laguna and passed on the cost of those taxes to Laguna. It assigned its right to any tax refund to Laguna.
No New Mexico governmental agency made any capital contribution to Laguna or contributed any funds to pay Raytheon. However, most Laguna employees were educated in New Mexico schools. Raytheon employees lived in Albuquerque and used the roads and other services there. State professional licensing boards ensured the competency of the architects and builders of the Laguna building, the banks and insurance companies Laguna used, and the attorneys handling the litigation.
2. Procedural history.
In 1988, Raytheon and Laguna filed a claim for the refund of $53,750.86 paid by Raytheon to the Department from March 1986 through May 1988. The Department took no action on the claim within 120 days. Raytheon and Laguna then filed an action in district court pursuant to NMSA 1978, Section 7-l-26(A) (Repl.Pamp.1990), challenging the Department’s failure to refund the tax. The parties filed cross motions for summary judgment. The district court granted Raytheon and Laguna’s motion and denied the Department’s motion, ruling that, as a matter of law, the sale of services to the tribe was “trading” under the Indian trader statutes. On that basis, the district court concluded that the Indian trader statutes preempted the state’s authority to impose the tax on Raytheon and ordered the state to refund the taxes paid, together with interest and costs.
3. The state tax.
The Gross Receipts and Compensating Tax Act, NMSA 1978, §§ 7-9-1 to -82 (Repl.Pamp.1990 & Supp.1991), provides for the imposition of a gross receipts tax on any person engaging in business in this state based upon the privilege of engaging in business within New Mexico. § 7-9-4(A). The tax is imposed on the sale of services performed in New Mexico. § 7-9-3(F).
4. The Indian trader statutes.
The Indian trader statutes, 25 U.S.C. §§ 261 to 264, state:
§ 261. Power to appoint traders with Indians
The Commissioner of Indian Affairs shall have the sole power and authority to appoint traders to the Indian tribes and to make such rules and regulations as he may deem just and proper specifying the kind and quantity of goods and the prices at which such goods shall be sold to the Indians.
§ 262. Persons permitted to trade with Indians
Any person desiring to trade with the Indians on any Indian reservation shall, upon establishing the fact, to the satisfaction of the Commissioner of Indian Affairs, that he is a proper person to engage in such trade, be permitted to do so under such rules and regulations as the Commissioner of Indian Affairs may prescribe for the protection of said Indians.
§ 263. Prohibition of trade by President
The President is authorized, whenever in his opinion the public interest may require the same, to prohibit the introduction of goods, or of any particular article, into the country belonging to any Indian tribe, and to direct all licenses to trade with such tribe to be revoked, and all applications therefor to be rejected. No trader to any other tribe shall, so long as such prohibition may continue, trade with any Indians of or for the tribe against which such prohibition is issued. § 264. Trading without license; white persons as clerks
Any person other than an Indian of the full blood who shall attempt to reside in the Indian country, or on any Indian reservation, as a trader, or to introduce goods, or to trade therein, without such license, shall forfeit all merchandise offered for sale to the Indians or found in his possession, and shall moreover be liable to a penalty of $500: Provided, That this section shall not apply to any person residing among or trading with the Choctaws, Cherokees, Chickasaws, Creeks, or Seminóles, commonly called the Five Civilized Tribes, residing in said Indian country, and belonging to the Union Agency therein: And provided further, That no white person shall be employed as a clerk by any Indian trader, except such as trade with said Five Civilized Tribes, unless first licensed so to do by the Commissioner of Indian Affairs, under and in conformity to regulations to be established by the Secretary of the Interior.
The United States Supreme Court examined the history of the Indian trader statutes in Warren Trading Post. The Court stated that “from the very first days of our Government, the Federal Government * * * had exercised through statutes and treaties a sweeping and dominant control over persons who wished to trade with Indians and Indian tribes.” Warren Trading Post, 380 U.S. at 686-87, 85 S.Ct. at 1243-44 (footnotes omitted). The Court continued, stating that “[s]uch comprehensive federal regulation of Indian traders has continued from that day to this.” Id. at 688, 85 S.Ct. at 1244. The Supreme Court stated that the Commissioner of Indian Affairs, acting under the authority granted to him under Sections 261 and 262, had:
promulgated detailed regulations prescribing in the most minute fashion who may qualify to be a trader and how he shall be licensed; penalties for acting as a trader without a license; conditions under which government employees may trade with Indians; articles that cannot be sold to Indians; and conduct forbidden on a licensed trader’s premises. He has ordered that detailed business records be kept and that government officials be allowed to inspect these records to make sure that prices charged are fair and reasonable; that traders pay Indians in money; that bonds be executed by proposed licensees; and that the governing body of an Indian reservation may assess from a trader “such fees, etc., as it may deem appropriate.”
Id. at 689-90, 85 S.Ct. at 1245 (footnotes omitted). Present regulations can be found at 25 C.F.R. Parts 140 and 141 (1991). “These apparently all-inclusive regulations and the statutes authorizing them would seem in themselves sufficient to show that Congress has taken the business of Indian trading on reservations so fully in hand that no room remains for state laws imposing additional burdens upon traders.” Warren Trading Post, 380 U.S. at 690, 85 S.Ct. at 1245. Later, in Central Machin ery, the Supreme Court expanded upon the holding of Warren Trading Post, concluding that, in enacting the Indian trader statutes and the regulations under them, “the Federal Government has comprehensively regulated trade with Indians to prevent ‘fraud and imposition’ upon them.” Central Mach. Co., 448 U.S. at 163, 100 S.Ct. at 2594-95. Central Machinery held that it was the existence of the Indian trader statutes themselves, and not their administration, that preempted the imposition of the tax. Id. at 165, 100 S.Ct. at 2596. Thus, although the trader was not licensed to engage in trading with Indians, as required by the Indian trader statutes and the regulations under them, the Court held that imposition of the tax was nonetheless preempted. Id. at 164-65, 100 S.Ct. at 2595-96. The Court also considered it irrelevant that the sale was made to a tribal enterprise, as occurred in this appeal, rather than directly to the tribe itself. Id. at 164 n. 3, 100 S.Ct. at 2595 n. 3.
DISCUSSION
The Department concedes that the Supreme Court’s decisions in Warren Trading Post and Central Machinery are still good law and that, under them, the Indian trader statutes preempt state taxes on activities within the scope of the statutes. We should also note that the Department, in arguing its second issue (which, as we previously noted, we need not address), although contending that Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 109 S.Ct. 1698, 104 L.Ed.2d 209, (1989), marks “a significant change of direction of the Supreme Court on its preemption analysis,” concedes that that recent case did not overrule Warren Trading Post or Central Machinery. Additionally, Cotton Petroleum did not concern itself with the Indian trader statutes.
The dissent maintains that the district court’s decision was not proper in a summary judgment posture. Summary judgment is appropriate when there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. SCRA 1986, 1-056(C) (Repl.1992). Under the facts of this appeal, the facts are not in dispute; the issue is the proper interpretation of the relevant statutes. Interpretation of a statute is a question of law. See Carpenter v. Arkansas Best Corp., 112 N.M. 1, 2, 810 P.2d 1221, 1222 (1991). Additionally, the legal effect of undisputed facts is a question of law. Westgate Fami lies v. County Clerk, 100 N.M. 146, 148, 667 P.2d 453, 455 (1983). Any necessary balancing, whatever its outcome, could also properly be performed in a summary judgment posture. See Hoopa Valley Tribe v. Nevins, 881 F.2d 657 (9th Cir.1989) (affirming trial court’s grant of summary judgment and decision that California’s tax on tribe’s timber revenues was preempted), cert. denied, 494 U.S. 1055, 110 S.Ct. 1523, 108 L.Ed.2d 763 (1990). Thus, the district court properly decided the case in a summary judgment proceeding. Id.
The precise issue before this court is whether a sale of services, in contrast to a sale of goods, to an Indian enterprise on an Indian reservation is within the scope of the Indian trader statutes. At this point, we consider it beneficial to quote the Department’s own words in framing the issue before us:
There is no question that the Indian trader statutes preempt state taxes on covered activities. The issue here is' whether coverage of those statutes historically and currently extends beyond the sale of goods to include services. The issue is not whether those statutes should cover services. That is a legislative decision. The question is whether Congress in enacting those statutes in 1834 and 1876 intended them to apply to anything but the sale of goods. A secondary issue is whether the Secretary of the Interior, by promulgating a particular regulation — 25 C.F.R. 140.5 — has interpreted the Indian trader statutes to permit regulation of the sale of services to Indians or> reservations by licensed Indian traders, and, if so, whether such interpretation is permissible.
Specifically, the Department’s argument is that, because the Indian trader statutes do not specifically include the word “services,” the word “trade,” as used in the Indian trader statutes, refers only to trade in goods and not to trade in services. We disagree.
The United States Supreme Court has stated that the Indian trader statutes must be given “ ‘a sweep as broad as [their] language, * * * and interpreted] * * * in light of the intent of the Congress that enacted them.’ ” Central Mach. Co., 448 U.S. at 166, 100 S.Ct. at 2596. In that case, the court held that imposition of the state tax was preempted by the Indian trader statutes even though the seller was not a licensed Indian trader and did not have a permanent place of business on the reservation. Id. at 165, 100 S.Ct. at 2596.
Given the purpose of the Indian trader statutes — “to prevent ‘fraud and imposition’ upon [the Indians],” Central Mach. Co., 448 U.S. at 163, 100 S.Ct. at 2594-95— there is little reason to distinguish between the sale of goods and the sale of services. The potential for fraud and imposition in the sale of services is perhaps even greater than the potential provided by the sale of goods. Is it, however, too great a stretch in the meaning of “trade” to include the purchase and sale of services? The interpretation of the word “trade” as used in the Indian trader statutes is apparently a matter of first impression in reported court decisions. But cf. United States ex rel. Keith v. Sioux Nation Shopping Ctr., 488 F.Supp. 496, 499 (D.S.D.) (district court notes that it has previously granted motions for summary judgment on the basis that 25 U.S.C. Section 264 “applies only to those who deal in goods.”), aff'd, 634 F.2d 401 (8th Cir.1980).
The Department, noting that the origins of the Indian trader statutes lie in the early years of our nation, contends that the words “trade” and “trader” have consistently been used in these statutes to refer only to trade in goods. It points to provisions in these acts that require the forfeiture of goods by traders who violate the statute and provisions that permit the federal government to regulate the prices of goods. The Department contends that in the late 1700s and 1800s, when these statutes were enacted, “[t]he economy was based on trade in goods, not the provision of services, as it is today. The era of the service economy was not to come for over a century.”
In further support of its position, the Department cites a portion of the definition contained in Webster’s Third New Interna tional Dictionary (1976) (Webster’s), which defines the noun “trade” as “the business of buying and selling or bartering commodities: exchange of goods for convenience or profit” and defines the verb “trade” as “to give in exchange for another commodity.” Id. at 2421. To establish the meaning at the time of enactment of the early Indian trader statutes, the Department observes that the dictionary cites usage of the verb “trade” by James Fenimore Cooper as follows: “[T]he white men who penetrated to the * * * wilds were always ready * * * to trade rifles and watches.”
We are not convinced. Raytheon and Laguna cite a study by the National Bureau of Economic Research showing that services constituted 32% of the gross national product as long ago as 1839. National Bureau of Economic Research, Output, Employment and Productivity in the United States after 1800 (New York, 1966). Other dictionary definitions include “the business one practices or the work in which one engages regularly: one’s calling: gainful employment: OCCUPATION,” and references are made to a variety of occupations, including doctors, carpenters, and writers, all of whom provide services, as well as to merchants. Webster’s, supra, at 2421. More importantly, the word, “trade” had a broader meaning than simply transactions in goods when used in contexts similar to the Indian trader statutes.
Courts that have considered the meaning of the word “trade” have regularly rejected the narrow definition proposed by the state. In The Nymph, 18 F.Cas. 506 (C.C.D.Me.1834) (No. 10,388), Supreme Court Justice Story, sitting as a circuit justice, interpreting the word “trade” as used in the coasting and fishery act of 1793, rejected a definition limiting “trade” to “traffic in goods, or buying and selling in commerce or exchange” in favor of a broader definition. He wrote:
[T]he word “trade” is often, and indeed generally, used in a broader sense, as equivalent to occupation, employment, or business, whether manual or mercantile * * * Thus, we constantly speak of the art, mystery, or trade of a housewright, a shipwright, a tailor, a blacksmith, and a shoe-maker, though some of these may be, and sometimes are, carried on without buying or selling goods.
Id. at 507.
The Supreme Court, in United States v. Hutto, 256 U.S. 524, 41 S.Ct. 541, 65 L.Ed. 1073 (1921), and Ewert v. Bluejacket, 259 U.S. 129, 42 S.Ct. 442, 66 L.Ed. 858 (1922), considered a statute forbidding persons involved in Indian affairs from having “any interest or concern in any trade with the Indians.” Ewert, 259 U.S. at 135, 42 S.Ct. at 443. In Hutto, the charges included involving Indians in loan transactions, as well as transactions involving the sale of land, automobiles, and other commodities. The Supreme Court did not distinguish among the charges, indicating that it believed the prohibition against trade with the Indians was broad enough to include the service of lending money to the Indians. In Ewert, the Supreme Court rejected the argument that:
the “trade with the Indians” in which persons employed in Indian affairs were prohibited by the section from engaging must be confined to trade with [Indians] when conducted as a business or occupation — to merchants or dealers supplying the Indians with the necessities or conveniences of life. Having regard to the purpose of the statute [to protect the Indians], we think that no such narrow interpretation can be given to the section.
Ewert, 259 U.S. at 137, 42 S.Ct. at 444.
Similarly, in Jordan v. Tashiro, 278 U.S. 123, 49 S.Ct. 47, 73 L.Ed. 214 (1928), the Supreme Court considered the definition of the word “trade” as used in a 1911 treaty that granted Japanese citizens the right to “carry on trade” within the United States. California contended that this provision did not allow a Japanese citizen to operate a hospital as a business enterprise and argued that “trade” was limited to the purchase, sale, or exchange of goods and commodities. The Supreme Court rejected this argument, stating:
While in a narrow and restricted sense the terms “commerce,” or “commercial,” and “trade” may be limited to the pur chase and sale or exchange of goods and commodities, they may connote, as well, other occupations and other recognized forms of business enterprise which do not necessarily involve trading in merchandise. And although commerce includes traffic in this narrower sense, for more than a century it has been judicially recognized that in a broad sense it embraces every phase of commercial and business activity and intercourse.
Id. at 127-28, 49 S.Ct. at 48 (citations omitted). The Court noted that “trade” had been interpreted as including carrying on a business as a pawnbroker. Id. at 128, 49 S.Ct. at 48-49. But see Clarke v. Deckebach, 274 U.S. 392, 395, 47 S.Ct. 630, 631, 71 L.Ed. 1115 (1927) (treaty protection of “merchants and traders” did not protect owner of poolroom). In Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 52 S.Ct. 607, 76 L.Ed. 1204 (1932), the Supreme Court interpreted the word “trade,” as used in the Sherman Act, as including the provision of cleaning and dyeing services.
Further support for a broad definition of “trade” can be found in the opinions in Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L.Ed. 483 (1832). Samuel Worcester had been convicted of violating a Georgia law prohibiting persons from residing within the Cherokee Nation without a state permit. Worcester’s crime was living with the Indians as a missionary, by authority of the President of the United States. He challenged his conviction on the grounds that the Georgia law violated the United States Constitution, treaties entered into between the United States and the Cherokee Indians, and the Indian trader act of 1802. Although Justice Marshall did not refer to any specific provision of the 1802 law that was violated by the Georgia statute, he did write that the Georgia statutes were in “hostility with the acts of congress for regulating this intercourse [with the Indians].” Id. 31 U.S. (6 Pet.) at 562. In a concurring opinion, Justice McLean specifically stated that the Georgia laws were repugnant to the 1802 act. Id. at 578. Although Justice McLean may have been relying on Section 3 of the 1802 act (which required persons entering Indian Country to obtain a passport from a state governor, military officer, or other person designated by the President), it appears that he relied on Section 7, which prohibited any person to reside with the Indians as a trader without a license from the federal government. The opinion focuses on Worcester’s residence with the Indians and the regulation of trade by the 1802 statute, not the mere passage of Worcester into Indian Country. For example, Justice McLean wrote:
The restrictions imposed by the law of 1802, come strictly within the power to regulate trade; not as an incident, but as a part of the principal power. It is the same power, and is conferred in the same words, that has often been exercised in regulating trade with foreign countries * * * *
In the regulation of commerce with the Indians, congress have exercised a more limited power than has been exercised in reference to foreign countries. The law acts upon our own citizens, and not upon the Indians, the same as the laws referred to act upon our own citizens in their foreign commercial intercourse.
Id. at 592. At the least, the opinions in Worcester establish that the purpose of the 1802 act was to control in the broadest sense all intercourse with the Indians in their territory. Such a purpose suggests that the words “trade” and “trader” in the statute were used in their broadest senses.
The language of the 1834 Indian trader statute further supports such a construction. Section 5 reads:
And be it further enacted, That no license to trade with the Indians shall be granted to any persons except citizens of the United States: Provided, That the President shall be authorized to allow the employment of foreign boatmen and interpreters, under such regulations as he may prescribe.
The language implies that boatmen and interpreters — who perform services — needed a “license to trade” under the act. Even if the proviso in this section was designed primarily to permit foreign boatmen and interpreters to be employed by those who traded in goods with the Indians, the fact that every employee of a trader (even though not employed to engage personally in trading goods with the Indians) needed a trader’s license again shows, at the least, that “trade” was to be given a broad interpretation.
Additionally, the United States Interior Department has interpreted the Indian trader statutes in a manner that supports the district court’s interpretation of “trade.” The Secretary of the Interior’s interpretation of a statute within his regulatory purview is entitled to deference by the courts. Northern Cheyenne Tribe v. Hollowbreast, 425 U.S. 649, 96 S.Ct. 1793, 48 L.Ed.2d 274 (1976); see also Public Serv. Co. v. New Mexico Pub. Serv. Comm’n, 106 N.M. 622, 625, 747 P.2d 917, 920 (1987) (stating that “courts should accord deference to the interpretation given to a statute by the agency to which it is addressed.”).
The regulations promulgated by the Interior Department to implement the Indian trader statutes are 25 C.F.R. Parts 140 and 141. Part 140, entitled “Licensed Indian Traders,” defines “[tjrading” as “buying, selling, bartering, renting, leasing, permitting and any other transaction involving the acquisition of property or services. ” 25 C.F.R. § 140.5(a)(6) (emphasis added). The Department argues that this definition does not reflect the Interior Department’s interpretation of the Indian trader statutes because it is contained in a section titled “Bureau of Indian Affairs employees not to contract or trade with Indians except in certain cases.” 25 C.F.R. § 140.5. Thus, the Department contends, definitions contained in the section must only refer to that section, and not to the following sections that specifically pertain to Indian traders. We disagree.
The regulation states that the definitions apply to “this part.” 25 C.F.R. § 140.5(a). In arguing that the definitions contained in Section 140.5(a) are not intended to apply to all of Part 140, the Department asks us to ignore the plain language of the regulation. In any event, even if the definitions in Section 140.5 were intended to apply only to regulations governing BIA employees, there is no reason to believe that a different definition would be appropriate in construing the Indian trader statutes. The restrictions on dealings between Indians and BIA personnel have a common ancestry with the Indian trader statutes. The original restrictions appear in companion legislation to the 1834 Indian trader and intercourse act. These two statutes were “intimately connected” and “parts of a system.” H.R.Rep. No. 474, 23d Cong., 1st Sess. 1 (1834). It is natural to assume that the word “trade” should bear the same meaning in those statutes and their progeny. The 1834 restrictions on trading between government personnel and Indians have long been interpreted as including service transactions. See S.Rep. No. 372, 76th Cong., 1st Sess. (1939).
Furthermore, Part 141, which contains the regulations promulgated by the Interi- or Department regarding business practices on the Navajo, Hopi, and Zuni reservations, similarly demonstrates that federal agency's interpretation of the Indian trader statutes as allowing the agency to regulate services provided on the reservations. Part 141 is intended “to prescribe rules for the regulation of reservation businesses for the protection of Indian consumers on the Navajo, Hopi and Zuni Reservations as required by 25 U.S.C. 261-64.” 25 C.F.R. § 141.1. Although the terms “trade” and “trading” are not specifically defined, the scope of the regulations is clearly intended to include businesses that provide services. The regulations prohibit a person from owning or leasing a “reservation business” without a license. 25 C.F.R. § 141.5(a). A “reservation business” is defined to include persons engaged “in the sale or purchase of goods or services or in consumer credit transactions.” 25 C.F.R. § 141.3(1). Clearly, the Interior Department views its authority to issue licenses to “reservation businesses” as deriving from its authority to license “traders.” It follows that the Interior Department views the word “traders” within the meaning of the Indian trader statutes to encompass those dealing in services.
These authorities persuade us that the term “trade” as used in the Indian trader statutes should be broadly defined to include trade in services. Like the statute discussed in Ewert, the Indian trader statutes are intended to protect the Indians from fraud. See Central Mach. Co., 448 U.S. at 163, 100 S.Ct. at 2594-95. Additionally, for more than 150 years, the Supreme Court and the federal courts have refused to limit the definition of “trade” to trade in goods. See, e.g., Jordan v. Tashiro; The Nymph. The agency responsible for administering the Indian trader statutes has interpreted the statutes as allowing for the regulation of services. See 25 C.F.R. § 140.5(a)(6). Finally, the Supreme Court has stated that the Indian trader statutes should be broadly construed. Central Mach. Co., 448 U.S. at 167, 100 S.Ct. at 2597.
The Department also relies on Ramah Navajo School Board, Inc. v. Bureau of Revenue, 458 U.S. 832, 102 S.Ct. 3394, 73 L.Ed.2d 1174 (1982), and Rodey, Dickason, Sloan, Akin & Robb, P.A. v. Revenue Division, 107 N.M. 399, 759 P.2d 186 (1988), to argue for a restrictive interpretation of the Indian trader statutes. Once again, we quote verbatim from the Department’s argument contained in its brief:
The issue of taxing services sold to tribal entities on reservations has, indeed, been litigated, but without ever referring to the Indian trader statutes. In Ramah, New Mexico imposed its gross receipts tax on the services of constructing a building on the Navajo reservation. The Supreme Court ultimately ruled that a federal statute concerning Indian education preempted the state tax. No mention was ever made of the Indian trader statutes. Why not? Warren Trading Post and Central Machinery had already definitively held that any activity which came within the scope of the Indian trader statute could not be subjected to state tax. If the Indian trader statutes indeed extended to services, the decision in Ramah would have been unanimous and one sentence long: “The case is controlled by Warren Trading Post and Central Machinery.” Instead, the Court completely ignored the Indian trader statutes and decided the case on the basis of other statutes. In [Rodey ], the issue was the provision of legal services to the Navajo tribe, performed partially on and partially off the reservation. Again, in arguing the issue of preemption to this court, Rodey placed no reliance on the Indian trader statutes as the federal law that preempted the provision of services to tribes. The only relevant federal statutes discussed by the courts in Rodey were those dealing with the employment of claims counsel.
In posing its argument, we believe that the Department has provided the basis for our determination that its reliance on Ramah and Rodey is misplaced. In neither case did any of the parties rely on the Indian trader statutes. Instead, other federal legislation was at issue and was ultimately dispositive of the issues raised by the parties. The failure of these decisions specifically to address the issue of whether the sale of services was within the scope of the Indian trader statutes is, in our judgment, a weak basis for determining that services are thus excluded. In addition, Rodey specifically restricted itself to services provided off of the reservation; therefore, the Indian trader statutes would have no application.
We recognize that previous opinions of the Tenth Circuit Court of Appeals and New Mexico courts have held that New Mexico’s gross receipts tax may be imposed on a non-Indian performing services on Indian lands. See Mescalero Apache Tribe v. O’Cheskey, 625 F.2d 967 (10th Cir.1980); Tiffany Constr. Co. v. Bureau of Revenue, 96 N.M. 296, 629 P.2d 1225 (1981); G.M. Shupe, Inc. v. Bureau of Revenue, 89 N.M. 265, 550 P.2d 277 (Ct.App.1976). However, for the reasons that follow, we do not consider these particular opinions controlling.
G.M. Shupe rejected the applicability of the Indian trader statutes solely on the ground that the taxpayer was not an Indian trader. G.M. Shupe, 89 N.M. at 268, 550 P.2d at 280. The court did not explain, however, why the contractor was not an Indian trader. One obvious reason was that the taxpayer’s contract was with the federal Bureau of Reclamation, not an Indian entity. G.M. Shupe does not stand for the proposition that services are not covered by the Indian trader statutes.
Tiffany may suggest that services rendered to a tribe on tribal land by a non-' Indian contractor are subject to New Mexico’s gross receipts tax. See Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778 (1973) (court of appeals must follow supreme court precedent). However, this court may consider whether supreme court precedent is applicable. Walker v. Maruffi, 105 N.M. 763, 737 P.2d 544 (Ct.App.1987). We hold that Tiffany is inapplicable because that opinion did not discuss whether the Indian trader statutes apply to service providers on the reservations.
As for Mescalero Apache Tribe, although the opinion on rehearing in that case might be read as stating that the Indian trader statutes do not govern trade in services, that opinion certainly offers no reasoning in support of that conclusion. We therefore see no reason to defer to that opinion on the same issue before us.
For these reasons, we determine that G.M. Shupe, Tiffany, and Mescalero Apache Tribe do not compel reversal of the district court’s decision in this case. Cf. Walker, 105 N.M. at 769, 737 P.2d at 550 (where our supreme court did not address issue, precedent not controlling on this court).
CONCLUSION
We determine that the word “trade” as used in the Indian trader statutes includes trade in services. Therefore, as conceded by the State, the preemption analysis applied in Warren Trading Post and Central Machinery applies to the transaction between Laguna and Raytheon in this appeal. Consequently, We hold that the Department’s taxation of services rendered to the tribal enterprise on the reservation was preempted by federal law. We therefore affirm the district court's decision.
IT IS SO ORDERED.
HARTZ, J., concurs.
BLACK, J., dissents.
. The dissent agrees with the recent observation of the Arizona Court of Appeals that "the holding in Warren Trading Post did not establish that federally licensed Indian traders could not be subjected to state tax.” State ex rel. Dept. of Rev. v. Dillon, 170 Ariz. 560, 826 P.2d 1186, 1193 (Ct.App.1991), review den., (Ariz.1992). However, the dissent ignores the sentence immediately following this statement, in which the Arizona Court of Appeals recognized that, under Warren Trading Post, "state taxation of Indian traders is preempted only to the extent of their receipts from reservations sales to reservation Indians." Id. Dillon involved a tax imposed on the trader’s sales to non-Indians, thereby making Warren Trading Post and Central Machinery inapplicable. In contrast, the facts of this appeal involve a tax imposed on the receipts of a sale to reservation Indians on the reservation. As recognized by Dillon, under these facts the holdings of Warren Trading Post and Central Machinery are applicable.
The dissent would remand for additional fact-finding so that the tribal, federal, and state interests can be weighed, despite its apparent conclusion that services are not governed by the Indian trader statute;. If services were not intended by Congress to be included in the Indian trader statutes, it necessarily follows that such federal legislation does not apply to the transactions at issue in this appeal. If the legislation does not apply, then there is no implied preemption issue. The particular examination and balancing of the various federal, state, and tribal interests, which the dissent suggests be performed on remand, thus become unnecessary because there is no federal legislation to preempt the state taxes. Remand is also unnecessary in light of the fact that the U.S. Supreme Court has already balanced these interests in Warren Trading Post. In that case, it concluded that, when a sale is made to reservation Indians on the reservation, the state tax on the receipts of the sale is preempted. Warren Trading Post, 380 U.S. at 691-92, 85 S.Ct. at 1246.
. The dissent claims we do not give "proper weight to the teachings of Cotton Petroleum,” Because Cotton Petroleum did not involve the same statutes as Warren Trading Post and Central Machinery, the preemption analysis contained in those two cases would not have been applicable. Thus, it is not surprising that the majority in Cotton Petroleum would not have found Warren Trading Post and Central Machinery controlling.
. It appears that the Mescalero Apache Tribe court first rejected the suggestion that Warren Trading Post was applicable because Warren Trading Post concerned a licensed trader that was a permanent enterprise on the reservation and the court considered the licensing of the contractor in the case before it "a pretext or a fiction." Mescalero Apache Tribe, 625 F.2d at 971. Days after the Tenth Circuit Court of Appeals entered its decision, the Supreme Court filed its decision in Central Machinery. That case involved one transaction with a company not on Navajo land and not licensed by the Bureau of Indian Affairs. Central Machinery Co., 448 U.S. at 165, 100 S.Ct. at 2596. On motion for rehearing, the Tenth Circuit Court of Appeals stated that, in its original opinion, it did not consider that the matter was controlled by the Indian trader statutes. That is true. The court had relied on the facts that the business in question was not licensed and on Navajo land, facts the Supreme Court in Central Machinery concluded were irrelevant. The Tenth Circuit court could have addressed the change in the law that the new Supreme Court case created. Yet, the circuit court merely stated without specifics that the new case did not present any new considerations. Mescalero Apache Tribe, 625 F.2d at 990. Because we believe that Central Machinery expanded the preemptive reach of the Indian trader statutes, we cannot follow Mescalero Apache Tribe. | [
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OPINION
BLACK, Judge.
Deborah Sparks Haley (Mother) brought this action as next friend for her ten-year-old son (Child), seeking to establish that her former husband, Larry Sparks (Sparks), was not Child’s father. Sparks filed a motion to dismiss and a motion to appoint a guardian ad litem. The district court denied the motion to appoint a guardian ad litem and did not expressly rule on the motion to dismiss, but later ruled that the divorce action between Mother and Sparks was res judicata and collateral estoppel as to the issue of paternity, and dismissed the action with prejudice. We hold that Mother was not the proper party to initiate this action as guardian ad litem and therefore the motion to dismiss should have been granted.
FACTS.
Sparks and Mother were married on June 10, 1977. Child was born during the marriage, on December 28, 1980. Both Sparks and Mother acknowledged Sparks’s paternity in a writing filed with the Vital Statistics Bureau of the State of New Mexico. Sparks and Mother were divorced in March 1989. In their property and custody agreement, the parties to the divorce proceeding (i.e., Mother and Sparks) represented to the court that the child was born “of the marriage.” A guardian ad litem was not appointed to represent Child in the divorce proceeding. Pursuant to their custody agreement and subsequent court order, Mother received custody of Child and Sparks paid child support and received visitation rights.
In April 1991, the district court gave Sparks sole custody and terminated child support to Mother. Sparks has publicly acknowledged Child as his own since birth. Sparks has also maintained a personal, financial, and custodial relationship with Child.
SECTION 40-11-9 OF THE UNIFORM PARENTAGE ACT DOES NOT AUTHORIZE THIS SUIT.
In September 1991, Child, by and through Mother as “next friend,” filed this action “to establish the existence or nonexistence of the parent/child relationship” between Child and Sparks, i.e., paternity. Mother asserts she has the authority to bring this action under NMSA 1978, Section 40-11-9 (Repl.Pamp.1989). This provision is part of New Mexico’s Uniform Parentage Act, NMSA 1978, §§ 40-11-1 to -23 (Repl.Pamp.1989) (the Act). Section 40-11-9 reads:
The child shall be made a party to the action. If he is a minor, he shall be represented by his general guardian or a guardian ad litem appointed by the court, or both. The court may align the parties.
There is an absolute prohibition against a parent representing the child in the uniform act. Unif. Parentage Act § 9, 9B U.L.A. 312 (1973). Although the New Mexico legislature did not adopt this absolute prohibition, it did adopt the requirement that the minor be represented by the general guardian or a guardian ad litem. There is no question in this case that Mother was not appointed to act as guardian ad litem. Sparks argues that Mother was also not the “general guardian” under Section 40-11-9 and therefore lacked the capacity to initiate this action. We agree.
A mother who was never appointed by the court may not be a proper “general guardian” for purposes of a statute requiring that such a guardian represent a minor in legal proceedings. Shearer v. Coats, 434 N.W.2d 596 (S.D.1989). Certainly the mere allegation that the mother is the child’s next friend does not make the mother the appropriate representative of the child in a paternity action. Lechner v. Whitesell by Whitesell, 811 S.W.2d 859 (Mo.Ct.App.1991).
The Appellate Court of Illinois recently determined that a mother who did not have custody was not a “general guardian” with standing to challenge her former husband’s paternity under the Illinois Parentage Act. In re Marriage of Koenig, 211 Ill.App.3d 1045, 156 Ill.Dec. 385, 570 N.E.2d 861 (1991). In Koenig, Shirley and Harold Koenig were married in September 1984 and a daughter, Krista, was born in 1985. 156 Ill.Dec. at 386, 570 N.E.2d at 862. Shortly after the birth, Harold sought a dissolution of the marriage. During the dissolution proceedings, Shirley repeatedly referred to Krista as Harold’s baby; a birth certificate indicating Harold as the father was also filed in the divorce proceedings. Id. The court entered a judgment based in part on an agreement of the parents which represented that Krista “ ‘was born to this marriage.’ ” Id. Custody was awarded to Harold, but both Harold and Shirley continued to file various pleadings regarding custody until Harold sought suspension of Shirley’s visitation rights. Shortly thereafter, Shirley, as “ ‘natural guardian,’ ” filed a petition to “declare the parentage” of the child. Id. The trial court ruled that the mother lacked standing to bring the action. Id., 156 Ill.Dec. at 386-87, 570 N.E.2d at 862-63.
In Koenig, the Appellate Court of Illinois held that, since the divorce court had awarded custody to the father, the mother could not qualify as a “general guardian” under Section 7 of the Illinois Parentage Act and therefore lacked standing to initiate the action, reasoning:
The [Illinois] Parentage Act also provides that “[i]f any party is a minor, he or she may be represented by his or her general guardian or a guardian ad litem appointed by the court, * * *.” (Ill.Rev.Stat. 1987, ch. 40, par. 2507(c).) The legislature has thereby limited a minor child’s representative to either his or her general guardian or court appointed guardian ad litem. Although the Act does not itself define “general guardian,” similar statutory provisions have been defined as “the guardian of the person, or of all the property of the ward * * * ” and, absent appointment by the court, does not include a minor’s natural mother (Shearer v. Coats (S.D.1989), 434 N.W.2d 596, 598); “ * * * one appointed by the Supreme, or Surrogate’s Court * * * ” (In re McGuire’s Estate (1921), 115 Misc. 84, 189 N.Y.S. 62, 63); and “one who has the general care and control of the person and estate of his ward.” (Black’s Law Dictionary 635 (5th ed.1979).) In the case sub judice, Shirley does not qualify as Krista’s general guardian because Harold was given “the sole permanent care, custody, control and education of the mi nor child” in the couple’s divorce settlement and agreed judgment. Nor was Shirley appointed Krista’s guardian ad litem. Under the statutory language and circumstances of this case, Shirley lacks standing to bring the paternity petition on Krista’s behalf.
Koenig, 156 Ill.Dec. at 387-88, 570 N.E.2d at 863-64.
The facts of Koenig are virtually indistinguishable from those before us. We agree with the Illinois court that if custody has been awarded to the party represented as the father in a divorce, the mother can no longer be considered a “general guardian.” Since April 1991, when the district court granted custody of Child to Sparks, Mother has not been Child’s “general guardian” and thus, in the absence of her appointment as guardian ad litem, is not the proper party to initiate this action on behalf of Child. Moreover, a mother’s opposition to a father’s paternity could be financially and emotionally detrimental to the child. This creates an obvious conflict of interest which requires the appointment of someone else to represent the interests of the child in such a paternity suit. Majidi v. Palmer, 175 Ill.App.3d 679, 125 Ill.Dec. 148, 152, 530 N.E.2d 66, 70 (1988); Lechner, 811 S.W.2d at 861; J.M.L. v. C.L., 536 S.W.2d 944, 947 (Mo.Ct.App.1976). Mother was not a proper party to bring this suit on behalf of Child as “next friend.” The suit should not have proceeded in the absence of a proper legal representative for Child and Sparks’s motion to dismiss should have been granted without prejudice. See Lechner, 811 S.W.2d at 861; cf. Wasson v. Wasson, 92 N.M. 162, 584 P.2d 713 (Ct.App.1978) (plain error to proceed in termination of parental rights case when child not adequately represented). We must therefore reverse and remand for entry of an order of dismissal without prejudice.
IT IS SO ORDERED.
BIVINS and CHAVEZ, JJ., concur.
. Section 9 of the uniform act provides:
The child shall be made a party to the action. If he is a minor he shall be represented by his general guardian or a guardian ad litem appointed by the court. The child’s mother or father may not represent the child as guardian or otherwise. The court may appoint the [appropriate state agency] as guardian ad litem for the child. The natural mother, each man presumed to be the father under Section 4, and each man alleged to be the natural father, shall be made parties or, if not subject to the jurisdiction of the court, shall be given notice of the action in a manner prescribed by the court and an opportunity to be heard. The court may align the parties.
Under the language of the uniform act, a parent may not represent a minor child in a paternity proceeding. M.R.D. by P.D. and R.F.D. v. F.M., 805 P.2d 1200 (Colo.Ct.App.1991); In re Burley (Burley v. Johnson), 33 Wash.App. 629, 658 P.2d 8 (1983).
. The Illinois Parentage Act, like New Mexico's Act, allows the child to be represented by a general guardian or guardian ad litem, but does not include the uniform act’s absolute prohibition against a parent representing the child. See Ill.Rev.Stat. ch. 40, para. 2507(c) (1984) (Section 7). | [
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OPINION
BLACK, Judge.
This appeal is a consolidation of two cases in which Eric Kramer and Lorna Baird (Appellants) appeal from fair hearing decisions which affirmed action by the Human Services Department terminating Appellants’ Aid to Families with Dependent Children (AFDC) benefits. In each case the Human Services Department’s Social Services Division (SSD) had filed a petition alleging neglect and/or abuse and had gained temporary custody of Appellants’ minor children under an ex parte court order. NMSA 1978, §§ 32-1-1 to -45 (Repl.Pamp.1989) (Children’s Code). The Human Services Department’s Income Services Division (ISD) determined that since the children had been removed from Appellants’ homes and placed in foster care during the pendency of the Children’s Code proceedings, AFDC payments should be terminated as of the first day of the month following their physical removal. We hold that ISD cannot terminate AFDC benefits before a full adjudicatory hearing has been held on the neglect/abuse petitions, because the children’s removal from the home under these circumstances constitutes temporary absence; thus we reverse.
THE BAIRD CASE
SSD obtained custody of Baird’s three minor children under an August 15, 1990 ex parte court order and placed them in temporary foster care. Baird contested the removal of the children from her home. After a custody hearing on August 21, 1990, the children’s court ordered that the children remain in foster care pending the adjudicatory hearing. On August 28, 1990, ISD took action to terminate Baird’s AFDC benefits and recoup an “overpayment” made during the period the children were absent from the home. Before any further hearings in the children’s court proceeding, SSD notified the parties that it was dismissing the neglect/abuse case and returned Baird’s children to her on September 14, 1990. The children were absent from the home for about one month, August 15 through September 14.
At the ISD “fair hearing” on terminating benefits, Baird testified that in the children’s absence she used her benefits to maintain a home for them while they were in foster care. She used her AFDC allowance to pay the phone, electric, cable, and gas bills, as well as to buy school supplies for the children. A witness for Baird generally confirmed this testimony and further testified that the Human Services Department did not know when the children would be returned, and had asked Baird to help them financially with the children’s normal expenses while they were in foster care. The hearing officer found that ISD was incorrect in determining that Baird had received an AFDC overpayment for August because the children were still in the home on the first day of August, but also upheld termination of AFDC benefits and found that Baird had received an AFDC overpayment for September because the children were in the custody of SSD on the first day of September.
THE KRAMER CASE
Without notice or Kramer’s consent, SSD obtained an emergency order of custody of his two minor children on July 15, 1990. The custody hearing was initiated on July 19, 1990, but was continued by the children’s court without giving Kramer an opportunity to present evidence. The children’s court did not make a finding of probable cause on July 19 to justify continued foster care, see SCRA 1986, Rule 10-303, but did leave the children in SSD’s custody pending conclusion of the custody hearing. On July 20, 1990, ISD took action to terminate Kramer’s AFDC benefits effective July 31, 1990. Kramer later testified at the fair hearing that, while the children were in foster care, he used the benefits received on their behalf to buy additional clothes and food for them in preparation for their return home.
PROCEDURE AND STANDARD OF REVIEW
If a child is alleged to be abused or neglected and SSD has custody, the children’s court must hold a custody hearing within ten days after the neglect/abuse petition is filed. R. 10-303(A). After the custody hearing, the court is required to return the child to his or her home unless the court determines probable cause exists to determine that the child is abused or neglected, and that for his or her protection the child should remain in the custody of SSD pending the adjudicatory hearing. See R. 10-303(A), (C). The adjudicatory hearing must be commenced within ninety days of the date the neglect/abuse petition is served or other specified events. SCRA 1986, Rule 10-308(A).
ISD argues it has the discretion to terminate AFDC payments when a child is placed in foster care pending an adjudicatory hearing. In seeking to terminate the AFDC payments of one previously found eligible, ISD must carry the burden of persuasion. Tappen v. State, Dep’t of Health & Welfare, 98 Idaho 576, 570 P.2d 28 (1977); Borkman v. Commissioner of Social Welfare, 268 A.2d 790 (Vt.1970). The role of this court is to determine whether ISD’s decision was “(1) arbitrary, capricious or an abuse of discretion; (2) not supported by substantial evidence in the record as a whole; or (3) otherwise not in accordance with law.” NMSA 1978, § 27-3-4(F) (Repl.Pamp.1989).
STATE REGULATIONS
Congress established the AFDC program in 1935 as part of the Social Security program. Fred C. Doolittle, State-Imposed, Nonfinancial Eligibility Conditions in AFDC: Confusion in Supreme Court Decisions and A Need for Congressional Clarification, 19 Harv.J. on Legis. 1 (1982). Its purpose was to encourage the care of dependent children in their own homes by enabling the state to furnish financial assistance “to needy dependent children and the parents or relatives with whom they are living to help maintain and strengthen family life.” 42 U.S.C. § 601 (1988); see Haceesa v. Heim, 84 N.M. 112, 500 P.2d 197 (Ct.App.1972). The Social Security Act expressly delegates some decisions to the states. Doolittle, supra, at 8; see also Robert P. Burns, Rawls and the Principles of Welfare Law, 83 Nw. U.L.Rev. 184, 221-27 (1989). In areas such as financial eligibility for AFDC, the states may establish guidelines so long as they are not inconsistent with federal law. Medberry v. Hegstrom, 786 F.2d 1389 (9th Cir.1986); Everett v. Schramm, 772 F.2d 1114 (3d Cir.1985).
ISD’s regulations begin with the assumption that the child is considered to be living in the home of a relative if the child is customarily present in the home. “The reasonable temporary absence of either the relative or child, or both, from the home does not indicate the termination of this condition.” New Mexico Human Services Department, Income Support Division, Program Manual § 317.3 (Dec. 1, 1987). ISD, however, relies upon the definition of “temporary absence” contained in Section 317.5 as the legal foundation for its decision to terminate benefits in the two cases at issue:
A child will remain eligible, even though he is not living in the home of a specified relative, for a period of up to two months, following the month in which the child or the specified relative leaves the home if
a. the absence is caused by an emergency and the absent person is expected to return home within the 2 months, and
b. there is no other person living with the child who could act as the specified relative.
Id. § 317.5.
As applied to these two cases ISD originally interpreted the phrase “emergency” to encompass only medical emergencies which were not present in either case on appeal. ISD has now conceded that limiting an emergency for absence from the home to a medical emergency is too narrow in scope. ISD nonetheless argues that “[w]hen a child is temporarily removed from a household and [SSD] has physical custody of the child through an emergency removal petition filed in Children’s Court, the child is no longer a member of a household and the household is not eligible for AFDC.” In order to sustain this contention ISD must show such an interpretation of Section 317.5 is reasonably related to the purpose of the Social Security Act. See Figueroa v. Sunn, 884 F.2d 1290 (9th Cir.1989); 15,844 Welfare Recipients v. King, 474 F.Supp. 1374 (D.Mass.1979).
FEDERAL REGULATIONS
As indicated, the goal of AFDC is to maintain dependent children in their homes. See Haceesa, 84 N.M. at 113, 500 P.2d at 198. Under 45 C.F.R. Section 233.-90(c)(l)(v)(B) (1991), a home is defined in the following terms:
A home is the family setting maintained or in process of being established, as evidenced by assumption and continuation of responsibility for day to day care of the child by the relative with whom the child is living. A home exists so long as the relative exercises responsibility for the care and control of the child, even though either the child or the relative is temporarily absent from the customary family setting. Within this interpretation, the child is considered to be “living with” his relative even though:
(1) He is under the jurisdiction of the court (e.g., receiving probation services or protective supervision); or
(2) Legal custody is held by an agency that does not have physical possession of the child.
Under this regulation, therefore, the family remains eligible for AFDC even though the child is temporarily absent from the customary family setting, “so long as the relative exercises responsibility for the care and control of the child.” Id. While “temporarily absent” is not defined, it is clear that the home exists and retains eligibility even though the child may be under the protective supervision of a court. On its face, then, the federal regulation discussing the impact of a “temporary absence” is more liberal than ISD’s original interpretation of Section 317.5 of its Manual and would appear to classify foster care pending the adjudicatory hearing in a neglect/abuse proceeding as a “temporary absence.” Indeed, some states have recognized this by specifically including “temporary foster care” in their regulations allowing AFDC benefits during a temporary absence. See, e.g., Campfield v. Perales, 169 A.D.2d 267, 573 N.Y.S.2d 80 (1991) (New York regulation specifying foster care for up to 180 days as a temporary absence).
Looking at both federal and state AFDC regulations, some courts have found the children to be “temporarily absent,” at least until a court has made a determination that parental abuse or neglect requires that the child be placed in foster care. Cf. Peck v. Department of Health & Rehabilitative Servs., 481 So.2d 927 (Fla.Dist.Ct.App.1985) (AFDC benefits continued while child in halfway house, but benefits legally terminated when child placed in camp program under community rather than primary parental control); Pfoltzer v. County of Fairfax, 775 F.Supp. 874, 890 (E.D.Va.1991) (department removal from the home with subsequent but not prior court approval not a “judicial determination” pursuant to 42 U.S.C. § 672(a)(1) (1988)). But see Ayres v. Babcock, 867 F.2d 296 (6th Cir.1989) (upholding Michigan regulation which deems children placed in foster care as absent from the home and thus ineligible for AFDC benefits). Other courts have treated the issue of whether foster care is a “temporary absence” as a determination to be reached on the particular facts and circumstances presented. See, e.g., In re Roberts v. Perales, 79 N.Y.2d 686, 584 N.Y.S.2d 775, 595 N.E.2d 850 (1992) (affirming termination of AFDC benefits eleven months after removal of children from the home and subsequent to family court finding of abuse and neglect).
We are impressed by the logic applied to virtually identical facts in Morin v. Commissioner of Public Welfare, 16 Mass.App. 20, 448 N.E.2d 1287, cert. denied, 389 Mass. 1104, 451 N.E.2d 1167 (1983). In that case the department of social services brought a petition alleging that the plaintiff’s four minor children were in need of care and protection. After an ex parte hearing on September 3, 1981, a temporary emergency order was entered transferring custody of the children to the department. After a September 8 hearing at which the plaintiff was present and was represented by counsel, the temporary order was extended to December 8. On September 10 the department of public welfare informed the plaintiff of its decision to terminate AFDC benefits based on the children’s absence from the home. Relying upon 45 C.F.R. Section 233.90(c)(l)(v)(B) (1981), the Appeals Court of Massachusetts reversed the termination. That court pointed out that while the department has custody under an original or an extended temporary emergency custody order and before a full adjudication on the petition, the child could still be “living with” the AFDC recipient under the definition of temporary absence in the federal regulations. The Massachusetts court concluded:
We think such a construction is consistent with the Federal regulation (45 C.F.R. § 233.90[c][l][v][B]), as it must be to pass muster (see Carleson v. Remillard, 406 U.S. 598, 600, 92 S.Ct. 1932, 1934, 32 L.Ed.2d 352 [1972]), gives full meaning to all of the language of the regulation, and is consistent with the public policy of the Commonwealth.
448 N.E.2d at 1292.
Prohibiting the termination of AFDC benefits until after a full adjudicatory hearing and final judicial decision that the children must be removed from the home likewise seems consistent with the public policy of New Mexico. In Haceesa we reversed a decision by ISD reducing AFDC benefits to families whose children attended boarding school. Speaking for the court, Judge Hendley said:
The purposes of AFDC are to strengthen family life. Regulation 220.2. One of those purposes would be to promote family solidarity. See Congressional policy stated in 42 U.S.C. § 601 (1935). * * * To keep the family from being financially able to have the child home on weekends and holidays would not be consistent with purposes as set forth above.
84 N.M. at 113, 500 P.2d at 198.
The rationale expressed in Haceesa applies to the cases at bar. As Appellants point out, since they fully expected the adjudicatory hearing to result in their children being returned, they had to maintain their homes in anticipation of that event. Cf. 20 C.F.R. 404.366(c) (1991) (expectation to live together in same place after the temporary separation relevant in defining “living with” for purposes of insurance benefits). To deprive them of their AFDC benefits prior to a final judicial finding that the welfare of the children required a transfer of custody would definitely not promote family solidarity. Terminating AFDC benefits before a judicial decision on the validity of SSD’s placement of children in foster homes would also appear to be contrary to a general federal policy of maintaining the family unit. The federal Adoption Assistance and Child Welfare Act of 1980, for example, requires child welfare agencies to make “reasonable efforts” to maintain children with their families and mandates juvenile courts to determine whether the efforts of the agency comply with this goal. Alice C. Shotton, Making Reasonable Efforts in Child Abuse and Neglect Cases: Ten Years Later, 26 Cal. W.L.Rev. 223, 223 (1990).
Nor are we impressed with ISD’s argument that federal law prohibits AFDC payments to the parents while the children are in foster care. While as a general proposition it is clear the state should not be required to pay both AFDC benefits to the parents and AFDC-FC (Aid to Families with Dependent Children-Foster Care) benefits for the same children, different rules apply when the state removes the children and places them in foster care before receiving a full judicial determination that such foster care is in the best interests of the child. As the United States Supreme Court noted in considering proper payments under AFDC-FC:
Although a fundamental purpose of the Foster Care program was to facilitate removal of children from their homes, Congress also took steps to “safeguard” intact family units from unnecessary upheaval. See S.Rep. No. 165, p. 7; 107 Cong.Rec. 6388 (1961) (remarks of Sen. Byrd). To ensure that children would be removed only from homes demonstrably inimical to their welfare, Congress required participating States to obtain “a judicial determination ... that continuation in the home was contrary to the welfare of the child.” S.Rep. No. 165, p. 7; see 108 Cong.Rec. 12693 (1962) (remarks of Sen. Eugene McCarthy); § 408(a)(1). Protecting the integrity of established family units by mandating judicial approval of a State’s decision to remove a child obviously is a goal that embraces all neglected children, regardless of who the ultimate caretaker may be. [Footnote omitted.]
Miller v. Youakim, 440 U.S. 125, 139, 99 S.Ct. 957, 966, 59 L.Ed.2d 194 (1979).
Without the requirement of a judicial determination of the need for a foster care placement, the Human Services Department would have the ability to arbitrarily destroy the stability of the family unit by withdrawing its financial sustenance. Such action would appear contrary to, rather than mandated by, congressional policy. Id.; see also Shotton, supra, at 255.
While sixty days may normally be an adequate benchmark for determining that the child’s absence is no longer “temporary,” we hold that, under the facts of the cases before us, ISD abused its discretion in terminating AFDC benefits and assessing an overpayment before completion of full adjudicatory hearings in the children’s court proceedings.
CONCLUSION
The fair hearing decision upholding termination of AFDC benefits is reversed, and the case is remanded for determination of the amount of retroactive AFDC benefits, if any, due to Appellants.
IT IS SO ORDERED.
DONNELLY and MINZNER, JJ„ concur. | [
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OPINION
CHAVEZ, Judge.
Plaintiff appeals a jury verdict in favor of Defendant on her assault and battery claim. She raises eight issues on appeal: (1) whether the trial court erred in granting summary judgment on the assault claim; (2) whether the trial court erred in excluding evidence of the character of Defendant; (3) whether the trial court erred in excluding testimony of size and strength differences between Plaintiff and Defendant; (4) whether the trial court erred in allowing the testimony of three witnesses disclosed near the date of trial; (5) whether the trial court erred in refusing to allow the admission of the deposition or the taped testimony of a witness; (6) whether the trial court erred in refusing to allow a polygraph tape to be played to the jury; (7) whether the trial court erred in allowing Defendant to make conclusive remarks in his opening statement; and (8) whether the trial court erred in refusing to instruct the jury on assault. We affirm.
FACTS
This cause of action arose as a result of an incident alleged by Plaintiff to have occurred at Clovis High Plains Hospital in July 1986. Defendant is an orthopedic surgeon and a member of the staff of the hospital. Plaintiff, a nurse at the hospital at the time of the incident, worked with- and was in charge of instruments. A disagreement occurred between Plaintiff and Defendant regarding certain instruments, including an osteotome, also known as a bone chisel. During the disagreement, Plaintiff alleges that Defendant jabbed Plaintiff in the back with the sharp end of the osteotome.
DISCUSSION
Plaintiff’s first issue is whether the trial court erred in granting partial summary judgment on her cause of action for assault. In reviewing a motion for summary judgment, this court looks to the whole record and views matters in the light most favorable to support a trial on the merits. North v. Public Serv. Co., 97 N.M. 406, 640 P.2d 512 (Ct.App.1982). Defendant’s motion for partial summary judgment was supported by excerpts from the depositions of Mary Jane Petty and Plaintiff. Plaintiff did not file affidavits or other material opposing the motion, but argued at the hearing, as she does on appeal, that she felt afraid “after the initial jabbing.” In her deposition, when asked if she felt “any anticipation that he might injure [her] further,” Plaintiff answered “I wasn’t sure. I was scared then.” She also stated that she left immediately after the alleged touching.
We determine this evidence to be sufficient to sustain the trial court’s grant of partial summary judgment on the issue of assault. While assault and battery are closely related, one may exist without the other. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 10, at 46 (5th ed. 1984). All batteries do not include an assault. For there to be an assault, there must have been an “act, threat or menacing conduct which causes another person to reasonably believe that he is in danger of receiving an immediate battery.” NMSA 1978, § 30-3-l(B) (Repl.Pamp.1984). There was no evidence that Plaintiff felt scared before the touching took place. Therefore, there was no genuine issue of material fact whether, under these circumstances, an assault actually occurred.
Plaintiff’s second issue is whether the trial court erred in excluding character evidence of Defendant. Admission of character evidence is within the discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of discretion. State v. Allen, 91 N.M. 759, 581 P.2d 22 (Ct.App.1978). Plaintiff cites several cases that allowed character evidence when character itself was at issue. In this case, however, Defendant did not put his character into issue. Also, Plaintiff’s counsel argued to the trial court that the evidence in question was probative of Defendant’s character and his propensity to be aggressive and domineering over women. SCRA 1986, 11-404(B) prohibits the use of evidence of other acts “to prove the character of a person in order to show that he acted in conformity therewith.” Refusal to admit this evidence was not an abuse of discretion.
Plaintiff’s third issue is whether the trial court erred in refusing to admit testimony of size or strength differences between Plaintiff and Defendant. The determination of relevancy and materiality rests largely within the discretion of the trial court. Wilson v. Hayner, 98 N.M. 514, 650 P.2d 36 (Ct.App.1982). In light of the nature of the charges against Defendant, we do not consider it an abuse of discretion for the trial court, under these circumstances, to have ruled that comparisons of the size and strength of the parties would be more prejudicial than probative. In addition the jury was able, by their own in-court observations, to view the differences between the parties.
Plaintiff’s fourth issue is whether the trial court erred in allowing testimony from three witnesses disclosed near the date of trial. In reference to the lay witnesses, SCRA 1986, 1-026(E)(1) places a duty on a party to seasonably supplement his response to a request to identify each of the persons expected to be called as a witness at trial. Plaintiff failed to provide us with facts indicating that the time frame in which Defendant informed her of the lay witnesses was not seasonable. See SCRA 1986, 12-208(B)(3). There is nothing to indicate that Defendant knew he would be calling the two new lay witnesses at an earlier point in time and chose not to disclose their identities until it would be too late for Plaintiff to depose them. Id. Also, Defendant disclosed the identity of the witnesses within the time frame allowed by the pre-trial order. The pre-trial order states that both counsel for Plaintiff and Defendant presented argument on Defendant’s motion for a pre-trial order, which only asked that time deadlines be set by the court and did not specify what deadlines were desired. Therefore, counsel for Plaintiff could have anticipated such problems arising and argued against the deadlines that were set.
The case of Beverly v. Conquistadores, Inc., 88 N.M. 119, 537 P.2d 1015 (Ct.App.1975), is distinguishable from the case at hand. In Beverly, counsel for one of the parties indicated he had knowledge of an additional witness whom he might call to testify at the trial and refused to name the witness when ordered to do so by the trial court. This is not the situation here.
With regard to the expert witness, SCRA 1986, 11-707(D) requires any party who intends to use polygraph evidence at trial to serve written notice of such intention on the opposing party, not less than ten days before trial. Plaintiff admits Defendant complied with this rule. Under these circumstances, we cannot say the trial court abused its discretion in not granting Plaintiff a continuance and in allowing the expert witness to testify.
Plaintiff’s fifth issue is whether the trial court erred in refusing to allow the admission of the unsigned deposition or the taped testimony of witness Mary Petty. SCRA 1986, 1-030(E) states in pertinent part:
Unless examination and reading of a deposition are waived by the witness and the parties, or unless the party requesting that a witness sign his deposition make[s] other arrangements for submitting a deposition to the witness, the court reporter shall advise the witness and the parties, in writing, when the transcript is ready for examination. Any changes in form or substance which the witness desires to make shall be entered * * *. The deposition shall then be signed by the witness.
Additionally, SCRA 1986, 1-032(C)(4), which here should be read in conjunction with Rule 1-030(E), provides that “[ejrrors and irregularities in the manner in which the * * * deposition is * * * signed * * * under Rules 1-030 and 1-031 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.”
In this case, Defendant’s objection was made with reasonable promptness upon discovery that the deposition was unsigned and Plaintiff did not claim that Defendant had waived the signature requirement. We hold that the trial court did not err in refusing to allow the unsigned deposition testimony of the witness into evidence. See Garcia v. Co-Con, Inc., 96 N.M. 308, 629 P.2d 1237 (Ct.App.1981).
We note that Defendant offered the Petty deposition in support of his motion for partial summary judgment. When Defendant did so he in effect vouched for the accuracy of that deposition. We believe that having offered the deposition, Defendant should not thereafter be allowed, under the doctrine of judicial estoppel, to object to the admission of the same deposition when offered by the opposing party. See, e.g., Citizens Bank v. C & H Constr. & Paving Co., 89 N.M. 360, 366, 552 P.2d 796, 802 (Ct.App.1976) (“ ‘Judicial estoppel’ simply means that a party is not permitted to maintain inconsistent positions in judicial proceedings.”); Eads Hide & Wool Co. v. Merrill, 252 F.2d 80, 84 (10th Cir.1958) (“Where a party assumes a certain position in a legal proceeding and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.”). Had Plaintiff argued that the first deposition should have been admitted, notwithstanding the lack of the witness’s signature or express waiver of same, on the basis that defendant himself had utilized that same deposition in support of his successful motion for partial summary judgment, we would have favored reversal and remand for new trial. Plaintiff, however, has not advanced a judicial estoppel argument on appeal, nor did she invoke a ruling on this issue by the trial court. See SCRA 1986, 12-216 (party must invoke a ruling by the trial court to preserve issue for review). Because Plaintiff has not raised or preserved this issue, we cannot address it on appeal.
With regard to the tape recording of the deposition, SCRA 1986, 1-030(B)(4) states:
The parties may stipulate in writing or the court may upon motion order that the testimony at a deposition be recorded by other than stenographic means. The stipulation or order shall designate the person before whom the deposition shall be taken, the manner of recording, preserving and filing the deposition, and may include other provisions to assure that the recorded testimony will be accurate and trustworthy.
There is no evidence in the record that any stipulation or order was made, or that any measures were taken to assure that the recording was accurate and trustworthy. The trial court did not err in refusing to allow the tape recording of the deposition.
Plaintiff’s sixth issue is whether the trial court erred in not allowing the polygraph interview tape to be played to the jury. SCRA 1986, 11-707 specifically deals with the use of polygraph examinations. Polygraph examinations are defined as “test[s] using a polygraph instrument which at a minimum simultaneously graphically records on a chart the physiological changes in human respiration, cardiovascular activity, galvanic skin resistance or reflex for the purpose of lie detection.” SCRA 1986, 11-707(A)(2). A polygraph examiner is a licensed professional who uses his skills and training to read, interpret, and score the responses to the examination. Lewis v. Rodriguez, 107 N.M. 430, 759 P.2d 1012 (Ct.App.1988). Therefore, the specific rule concerns itself with the admission of the results of the polygraph examination, which requires the professional skill of a trained polygraph examiner. See SCRA 1986, 11-707(C). In light of this, we cannot say the trial court erred in refusing to allow the tape of the examination to be played.
Plaintiff’s seventh issue is whether the trial court erred in allowing Defendant’s counsel to make conclusory arguments in his opening statement. “The burden is on the plaintiff to establish that the opening statements made by defendant, in all probability must have produced some effect upon the final results of the trial.” Proper v. Mowry, 90 N.M. 710, 716, 568 P.2d 236, 242 (Ct.App.1977). Our examination of the record shows Plaintiff failed to make such a showing to the trial court or this court.
Plaintiff’s eighth issue is whether the trial court erred in refusing to instruct the jury on assault. Having previously decided that the trial court did not err in granting summary judgment on the assault issue, the jury did not need to be instructed on the assault, because that claim was not properly before them. We affirm.
IT IS SO ORDERED.
BIVINS and FLORES, JJ., concur. | [
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OPINION
FROST, Justice.
This case presents an issue concerning liability of copartners for damages awarded for fraud and breach of contract committed by one partner in the scope and course of partnership business. Plaintiff, Jo Ann Duncan, appeals the judgment entered in her favor. She filed suit against several defendants for fraud, unfair trade practice, and breach of contract in conjunction with her purchase of real estate in Lincoln County, New Mexico. After a bench trial, the district court awarded plaintiff compensatory damages, punitive damages, attorney fees, and costs against defendant Melvin Glenn, personally, d/b/a Roundup Realty, Inc., d/b/a P & G Investments, a New Mexico general partnership, and as a general partner of P & G for his fraudulent inducement of plaintiff to purchase property, his intentional and fraudulent breach of fiduciary duty, and his intentional and fraudulent breach of contract. The court concluded that Glenn’s conduct, which occurred within the scope of the partnership business, constituted unfair or deceptive trade practice in violation of NMSA 1978, Section 57-12-3 (Repl.Pamp.1987). The court held that Glenn’s copartners “committed no fraud, and damages are not recoverable against them * * * * ”
On appeal, plaintiff contends that Glenn’s copartners, defendants Bonnie Glenn, his wife, and Frank and Dorothy Pope, should be jointly and severally liable for the breach of contract under the New Mexico Uniform Partnership Act and NMSA 1978, Sections 38-4-3 and -5 (Repl.Pamp.1987), which address joint contracts and suits against partnerships. Defendants-appellees made no appearance on appeal. We affirm the judgment as it relates to Melvin Glenn, but reverse in part the trial court’s refusal to impose liability upon the copartners. We hold that Glenn’s copartners are liable for compensatory damages, attorney fees, and costs, but not punitive damages.
New Mexico partnerships are governed by the Uniform Partnership Act, NMSA 1978, Sections 54-1-1 to -43 (Repl.Pamp.1988). In determining which, if any, damages are to be imputed to Glenn’s copartners, we look to the pertinent provisions of the Act:
54-1-13: Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership or with the authority of his copartners, loss or injury is caused to any person, not being a partner in the partnership, or any penalty is incurred, the partnership is liable therefor to the same extent as the partner so acting or omitting to act.
54-1-14: The partnership is bound to make good the loss: A. where one partner acting within the scope of his apparent authority receives money or property of a third person and misapplies it; and B. where the partnership in the course of its business receives money or property of a third person and the money or property so received is misapplied by any partner while it is in the custody of the partnership.
54-1-15: All partners are liable: A. jointly and severally for everything chargeable to the partnership under Sections 13 and 14; B. jointly for all other debts and obligations of the partnership; but any partner may enter into a separate obligation to perform a partnership contract.
Clearly, under Section 54-1-13, the partnership is liable for the loss caused by the fraud committed on plaintiff by Glenn. See, e.g., Bergh v. Mills, 763 P.2d 214, 217 (Wyo.1988) (“The effect of [Section 13] of the Uniform Partnership Act is to impose individual liability against the members of a partnership when another partner commits a tortious act within the scope of partnership business.”). Section 54-1-14 further holds the partnership responsible for plaintiff’s damages in connection with the breach of contract claim, which the court ruled was based on Glenn’s failure to apply plaintiff’s payments to the underlying real estate contract. Thus, under Section 54-1-15, Glenn and his copartners are liable jointly and severally for the amount of compensatory damages, attorney fees, and costs awarded to plaintiff. See Gallegos v. Citizens Ins. Agency, 108 N.M. 722, 727-28, 779 P.2d 99, 104-05 (1989) (liability of partners is joint and several for compensatory damages).
With regard to the question of punitive damages in the context of a part nership, we look both to the Uniform Partnership Act and our common law on principal-agency and master-servant relationships in relation to vicarious and derivative liability. Under the Uniform Partnership Act, Section 13 is the only section under which punitive damages could be imposed against copartners since Section 14 merely limits a partnership’s liability to restitution. We are mindful that, in general, statutes in derogation of the common law are to be construed strictly. In re Estate of Cruse, 103 N.M. 539, 542, 710 P.2d 733, 736 (1985). Under this standard, a court will not find the common law superseded unless it appears that it was the legislative intent, which is to be determined primarily by the language of the statute itself. State ex rel. Stratton v. Roswell Indep. Schs., 111 N.M. 495, 500, 806 P.2d 1085, 1090 (Ct.App.1991).
The few cases interpreting Section 13 in relation to punitive damages reach conflicting results. See Michael A. Rosenhouse, Annotation, Derivative Liability of Partner For Punitive Damages For Wrongful Act of Copartner, 14 A.L.R.4th 1335 (1982). As noted in Hayes v. Quincy (In re WPMK Corp.), 59 B.R. 991 (D.Hawaii 1986), “[tjhis conflict, however, appears to derive from the individual state’s common law treatment of vicarious liability for punitive damages.” Id. at 996 n. 3.
Jurisdictions holding a partnership vicariously liable for punitive damages base their rule in their respective common law of derivative liability. In Maryland, for example, the law is viewed liberally and liability is imputed to the master for the tort of the servant simply because the servant was acting in the course of the master’s service, for the master’s benefit, and within the scope of employment. See Meleski v. Pinero Intern. Restaurant, Inc., 47 Md.App. 526, 424 A.2d 784, 792 (1981). According to the court in Meleski, “it appears the Uniform Partnership Act did not change the common law rules of vicarious liability in Maryland.” In re WPMK Corp., 59 B.R. at 996 n. 3.
Under Missouri’s general principles of agency and partnership law, all partners can be held jointly liable for punitive damages despite a copartner’s lack of culpability. Blue v. Rose, 786 F.2d 349, 352-53 (8th Cir.1986). The determination of liability simply turns on whether the act was done within the scope of the wrongdoing partner’s authority. Rogers v. Hickerson, 716 S.W.2d 439, 447 (Mo.Ct.App.1986) (award of punitive damages against non-culpable copartner was appropriate in view of fact that commission of wilful tort by partner was committed within scope of wrongdoing partner’s authority). It is unnecessary to show that the non-culpable partner had knowledge of the fraudulent conduct or that the conduct was ratified. Id.; see also Collins v. Adams Dairy Co., 661 S.W.2d 603, 606 (Mo.Ct.App.1983) (punitive damages may be awarded against corporate defendant for wrongful acts of its agent committed in course of agency and by virtue of agent’s authority) (quoting Fischer v. MAJ Inv. Corp., 631 S.W.2d 902, 906 (Mo.Ct.App.1982)). Missouri’s common law, which holds a master liable for a tort committed by one’s servant, “does not require a finding of prior authorization or subsequent ratification before an individual employer will be held liable in punitive damages for the torts committed by his employees within the scope and course of their employment and in furtherance of the employer’s business.” Johnson v. Allen, 448 S.W.2d 265, 269-70 (Mo.Ct.App.1969).
New Mexico’s approach to punitive damages is similar to that of Hawaii and Indiana. See In re WPMK Corp. and Husted v. McCloud, 436 N.E.2d 341 (Ind.App.1982), vacated by 450 N.E.2d 491 (Ind. 1983). We subscribe to the view that “[t]he purpose of punitive damages is to punish the wrongdoer and to deter the wrongdoer and others in a similar position from such misconduct in the future.” Conant v. Rodriguez, 113 N.M. 513, 517, 828 P.2d 425, 429 (Ct.App.1992). In Husted, the lower court’s ruling to apply Section 13 to find innocent partners liable for punitive damages was reversed on appeal. The Indiana Supreme Court based its decision on the state’s common law rationale behind punitive damages, which prohibits liability against one who is innocent of wrongdoing since an award of punitive damages is in tended to punish the wrongdoer and deter others from engaging in similar conduct. 450 N.E.2d at 495. Applying a similar rationale as employed in Husted, the Hawaii court in In re WPMK Corp. decided that innocent partners are not liable for punitive damages unless it could be shown “that the partnership authorized, ratified, controlled, or participated in the alleged tortious activity.” 59 B.R. at 997.
“ ‘The rule [on derivative liability] is well established in New Mexico that the principal, or master, is liable for punitive or exemplary damages only in cases where the principal or master has in some way authorized, participated in or ratified the acts of the agent or servant, which acts were wanton, oppressive, malicious, fraudulent or criminal in nature.’ ” Samedan Oil Corp. v. Neeld, 91 N.M. 599, 601, 577 P.2d 1245, 1247 (1978) (quoting Couillard v. Bank of N.M., 89 N.M. 179, 181, 548 P.2d 459, 461 (Ct.App.1976)). This rule supported the holding in Newberry v. Allied Stores, Inc., 108 N.M. 424, 773 P.2d 1231 (1989), a defamation case in which we reversed an employer's liability for punitive damages due to the employee’s tort. “[A] master or employer is liable for punitive damages for the tortious act of an employee acting within the scope of his [or her] employment and where the employer in some way participated in, authorized or ratified the tortious conduct of the employee.” Id. at 431, 773 P.2d at 1238 (citing Samedan Oil Corp.).
Our law is consistent with the rule set out by the United States Supreme Court in the seminal case of Lake Shore & Michigan Southern Railway Co. v. Prentice, 147 U.S. 101, 107, 13 S.Ct. 261, 262, 37 L.Ed. 97 (1893), that punitive damages can only be awarded against one who has participated in the offense. Samedan, 91 N.M. at 601, 577 P.2d at 1247. In other words, “a master or principal is not liable for punitive damages unless it can be shown that in some way he also has been guilty of the wrongful motives upon which such damages are based.” Id. at 602, 577 P.2d at 1248.
In Meleski, unlike the case at bar, the court held there was sufficient evidence for the jury to have found that the partners ratified or authorized the fraudulent acts. Here the court specifically found that the copartners, Mrs. Glenn and the Popes, “committed no fraudulent acts.” Accordingly, absent a finding of ratification, authorization, or participation in the fraudulent conduct, punitive damages may not be recovered from copartners for one partner’s fraudulent conduct. Glenn, his wife, and Mr. and Mrs. Pope, as partners in P & G Investments are liable to plaintiff jointly and severally for the award of compensatory damages, attorney fees, and costs; however, only Glenn is liable to plaintiff for the award of punitive damages.
IT IS SO ORDERED.
BACA and MONTGOMERY, JJ., concur.
. In Gallegos this court prescribed that the determination as to the liability for punitive damages must be made separately when two or more defendants are involved. 108 N.M. at 728, 779 P.2d at 105. | [
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OPINION
FLORES, Judge.
The opinion filed July 10, 1992, is withdrawn and the following substituted therefor.
Bernard J. Rusanowski and Dolores Rusanowski (plaintiffs) sued Demos Gurule and Juanita Gurule (defendants) to (1) enjoin defendants from constructing a guest house on defendants’ lot and to remove any portion of said structure that violates cer tain subdivision restrictive covenants (covenants) and (2) permanently restrain defendants from using the guest house as a residence or rental unit or as anything other than a guest house or servants’ quarters. The district court entered a judgment and order in favor of plaintiffs. Defendants appeal from a portion of said judgment and order. The sole issue on appeal is whether defendants’ guest house is an outbuilding within the meaning of the covenants. We reverse in part and remand.
COVENANTS
The covenants material to this case are paragraphs 2, 3, and 6 of Article II of said covenants. These pertinent paragraphs read as follows:
2. No structure shall be erected, altered, placed or permitted to remain on any residential lot other than one detached single family dwelling, not to exceed two stories in height, a private garage for not more than three (3) cars, one detached guest house or servants’ quarters not to exceed 700 square feet in ground floor area, exclusive of open porches, and other outbuildings incidental to residential use of the lot, except as hereinafter provided.
3. No building, including porches, shall be so located on any residential lot that any part thereof shall be nearer than twenty-five (25) feet from the front lot line or nearer than twenty (20) feet from any side street line. No building except a detached garage or other outbuilding [sic], all whereof is located sixty-five (65) feet or more from the front lot line shall be located nearer than ten (10) feet to any side lot line. The term “lot line” as used in this restriction shall mean a line marking the boundary between lands held in different ownership, without respect to lines of lots as shown on any map or plat of said subdivision.
6. No trailer, basement, tent, shack, garage, barn, or other out-building [sic] erected in the tract shall at any time be used as a residence temporarily or permanently, nor shall any structure of a temporary character be used as a residance [sic].
BACKGROUND
Plaintiffs and defendants own adjoining residential lots in the Sol Y Lomas, Unit 8, subdivision in Santa Fe. Both lots are subject to the covenants. In 1985 defendants built a guest house on their lot. A portion of the guest house was built within five feet, nine inches of the common property line of the parties. Plaintiffs claim that the covenants prohibit a guest house within ten feet of the side lot line and that defendants’ guest house is in violation of the covenants. Defendants, in turn, contend that the covenants permit a guest house unless it is shown to be both within ten feet of the side lot line and within sixty-five feet of the front lot line. The district court ruled in favor of the plaintiffs on the ground that a portion of the guest house was constructed within ten feet of the side lot line, in violation of the covenants. The district court did not make any finding regarding the distance of the guest house from the front lot line.
DISCUSSION
Initially, plaintiffs argue that the plain and ordinary meaning of an outbuilding is a building used in connection with, or incidental to, the main building, and considering the covenants as a whole, defendants’ guest house is not an outbuilding. Plaintiffs argue that the structure built by defendants is wholly independent from the main residence. In support of their argument, plaintiffs rely mainly on the South Carolina case of Archambault v. Sprouse, 218 S.C. 500, 63 S.E.2d 459 (1951). In Archambault, the court faced the question of whether a structure containing a complete dwelling above a garage was allowed by the covenants. The covenants in question provided:
A. * * * No structures shall be erected, altered, placed, or permitted to remain on any residential building plot other than one detached single-family dwelling ... and a private garage for not more than two cars and storage. Build ings incidental to residential use may be erected.
B. * * * No building, except a detached garage or other outbuilding located on rear lh of lot, shall be located nearer than 5 feet to any side lot line.
E. No trailer, basement, tent, shack, garage, barn or other outbuilding ... shall at any time be used as a residence temporarily or permanently, nor shall any structure of a temporary character be used as a residence.
Id. 63 S.E.2d at 460-61. The additional dwelling unit above the garage was entirely self-sufficient and independent from the main residence. The court held that the structure in question was not one “incidental to residential use” and that the covenants manifestly intended that only one dwelling house should be permitted on each lot. Id. at 462. Thus, the court held that the additional dwelling unit was not allowed by the covenants.
Plaintiffs’ reliance on Archambault is misplaced. First, paragraph A of the Archambault covenants does not list a guest house as a permitted use. On the other hand, paragraph 2 of the covenants in this case expressly permits a detached guest house or servants’ quarters. Second, as we discuss later, the phrase “other outbuildings” in paragraph 2, unlike the language in paragraph A of the Archambault covenants, refers to a guest house as a particular kind of outbuilding. Third, contrary to the covenants in Archambault, the covenants in this case clearly allow for more than one dwelling on each lot. These distinctions make Archambault inapplicable in this case.
Defendants rely on certain rules of statutory construction, specifically the last antecedent rule and the rule of “ejusdem generis,” to interpret the covenants. However, we agree with plaintiffs that rules of statutory construction are not necessarily applicable to restrictive covenants. The general rules of construction applicable to restrictive covenants are well established. As stated in Wilcox v. Timberon Protective Ass’n, 111 N.M. 478, 806 P.2d 1068 (Ct.App.1990):
In determining whether restrictive covenants will be enforced as written, courts are guided by certain general rules of construction, which we now summarize. When the covenant is subject to ambiguity, the restrictive covenants will be resolved in favor of the free enjoyment of the property and against the restriction. Restrictions on land use will not be read into covenants by implication. Restrictive covenants must be considered reasonably, though strictly, so that “illogical, unnatural or strained construction” will not be affected. Finally, words in a restrictive covenant must be given their ordinary and intended meaning. [Citations omitted.]
Id. at 483, 806 P.2d at 1073 (quoting Hyder v. Brenton, 93 N.M. 378, 381, 600 P.2d 830, 833 (Ct.App.1979)).
The parties disagree over whether the restrictive covenants in this appeal are ambiguous. “Whether ambiguity exists is a question of law.” Id. Ill N.M. at 484, 806 P.2d at 1074. The standard for determining if a document is ambiguous is whether the instrument is reasonably and fairly susceptible of different constructions. Id.; see also Levenson v. Mobley, 106 N.M. 399, 744 P.2d 174 (1987). To determine whether the covenants are ambiguous, we consider the document as a whole. Sharts v. Walters, 107 N.M. 414, 759 P.2d 201 (Ct.App.1988).
In support of their contention that the construction of a guest house is not in violation of the covenants, defendants generally argue that paragraph 2 of the covenants expressly permits “one detached guest house * * * and other outbuildings” and that a guest house is merely a particular type of outbuilding within the meaning of the covenants. In further support of their contention, defendants argue that paragraph 3 of the covenants permits an outbuilding to be placed within ten feet of the side lot line if it is also sixty-five feet or more from the front lot line. Plaintiffs do not disagree with defendants’ argument that, under paragraph 3 of the covenants, an outbuilding located more than sixty-five feet from the front lot line can be within ten feet of the side lot line. Thus, the dispositive issue before us is whether, under the restrictive covenants, a guest house is an outbuilding.
An outbuilding is ordinarily defined as “a building * * * separate from but accessory to a main housé * * Webster’s Third International Dictionary 1601 (1976). Giving paragraph 2 of the covenants a straightforward reading, we conclude that the phrase “other outbuildings” applies and refers back to the phrase “one detached guest house or servants’ quarters,” and therefore a detached guest house is an outbuilding within the meaning of paragraph 2 of the covenants. Otherwise, the reference to “other outbuildings” does not make sense. Plaintiffs argue that the phrase “other outbuildings” refers to “garage”; however, we see no reason the phrase cannot refer back to both “garage” and “guest house.” Both are buildings separate from but accessory to the main house. “Restrictive covenants must be considered reasonably, though strictly, so that ‘illogical, unnatural or strained construction’ will not be affected.” Wilcox, 111 N.M. at 483, 806 P.2d at 1073 (quoting Hyder, 93 N.M. at 381, 600 P.2d at 833).
The fact that paragraph 6 of the covenants states that “[n]o trailer, basement, tent, shack, garage, barn, or other outbuilding [sic] erected in the tract shall at any time be used as a residence” does not persuade us that a guest house is not an outbuilding. Plaintiffs argue that the trial court “implicitly concluded that a ‘guest house’ is not incidental to the use of the main residence, i.e., that the structure is not an outbuilding.” They further claim that paragraph 6 supports this conclusion because it prohibits use of any outbuilding as a residence. Thus, we presume that plaintiffs’ reasoning is that, because a guest house can be used as a residence, it must not be an outbuilding. We disagree. The language of paragraph 6, although admittedly ambiguous when read together with paragraphs 2 and 3, is not intended to contradict the terms of paragraph 2 with respect to permitted structures or the terms of paragraph 3 with respect to permitted placements. Since the prohibition against residential use applies only to structures and outbuildings inappropriate by their nature for residential use and to temporary structures, it does not constitute a flat ban on residential outbuildings that are otherwise expressly permitted.
Plaintiffs also argue that the word “outbuilding” cannot include “guest house” because it consistently appears only with the word “garage” in all three of the paragraphs at issue and that the use of the word “other” preceding “outbuildings” in paragraph 2 must be a grammatical error. Plaintiffs also correctly point out that, in paragraph 6, the phrase “other out-building [sic]” cannot refer back to the word “basement”; however, the immediately preceding phrase is “barn.” We note in both paragraphs 2 and 6, the word “garage” is separated from the phrase “other outbuilding^]” by a reference to another type of structure. Plaintiffs do not argue that the word “barn” in paragraph 6 is not a type of outbuilding; we see no reason to conclude that a grammatical error was made in paragraph 2 but that, using very similar phrasing, no error was made in paragraph 6. We conclude that, in both covenants, the phrase “other outbuildings” refers back to the immediately preceding phrase.
We determine that .the covenants are ambiguous. First, all three of the covenants at issue refer to “other outbuildings” or “other outbuilding,” yet the term “outbuilding” is not defined. Second, there is an ambiguity between paragraphs 2 and 6 in that paragraph 2 includes a guest house as an outbuilding and permits these types of structures to be constructed on the residential lots while paragraph 6 appears to prohibit the residential use of outbuildings. Third, there is an ambiguity between paragraphs 3 and 6 in that paragraph 3 permits an outbuilding to be placed in the residential lots, if within certain distances of the lot lines, while again, paragraph 6 appears to prohibit the residential use of outbuildings. Unless the covenants clearly prohibit the guest house where erected, they must be construed to allow it to remain. Any conflict or ambiguity must be construed in favor of free use of the property and against restriction. Lockwood v. Steiner, 101 N.M. 783, 784, 689 P.2d 932, 933 (1984); Cain v. Powers, 100 N.M. 184, 186, 668 P.2d 300, 302 (1983); Montoya v. Barreras, 81 N.M. 749, 750, 473 P.2d 363, 364 (1970); Ryder, 93 N.M. at 382, 600 P.2d at 834.
Having determined that the guest house is an outbuilding, within the meaning of the covenants, the language in paragraph 3, namely, “no building except a detached garage or other out-building [sic], all whereof is located sixty-five (65) feet or more from the front lot line shall be located nearer than ten (10) feet to any side lot line[,]” permits the guest house to be built within ten feet of the side lot line if in fact it is also sixty-five feet or more from the front lot line. To hold otherwise would be to ignore the express distinction in paragraph 3 of the covenants between buildings within sixty-five feet of the front lot line and those sixty-five feet or more from the front lot line. Common sense dictates that the purpose of this distinction in paragraph 3 is to prevent ancillary buildings along the side lot lines where they are readily visible from the street, but to permit each owner free use of his own land at the rear of the lot. The rational explanation for different treatment of outbuildings based on distance from the street is that the covenant seeks preservation of an uncluttered street-scape. This is clearly a legitimate and common-sense objective in land use regulation.
CONCLUSION
One of plaintiffs’ exhibits shows that the guest house is eighty-five feet from the front lot line. Plaintiffs do not challenge that fact in their answer brief. Therefore, since the guest house is sixty-five feet or more from the front lot line, the covenants do not prohibit the construction of the guest house. Based on the foregoing, we reverse in part and remand to the district court with instructions to withdraw that portion of its order requiring removal of the guest house or any part thereof. Defendants are awarded costs on appeal.
IT IS SO ORDERED.
BIVINS and APODACA, JJ., concur. | [
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OPINION
RANSOM, Chief Justice.
Representatives Murray Ryan and Ben Lujan, of the New Mexico Legislature, petitioned this Court for a writ of mandamus ordering the Secretary of State to submit multiple questions rather than a single question under the 1992 Capital Projects General Obligation Bond Act that will go before the voters in November of 1992. At issue was whether the debt authorized by the 1992 Bond Act was for multiple works or objects, or for “some specified work or object” as required by Article IX, Section 8 of the New Mexico Constitution. We ruled from the bench at oral argument that the Secretary of State must submit separately to the voters each of nine questions in the 1992 Bond Act. In this opinion, we announce the rationale for issuing our writ of mandamus to that effect.
The 1992 Capital Projects General Obligation Bond Act, 1992 N.M.Laws, chapter 103, §§ 1-17, authorizes debt not to exceed $92,165,400
to make capital expenditures for senior citizens facilities and vehicles; state public educational capital improvements and acquisitions; the automation of court systems statewide; renovations and purchase of books and audio-visual materials; health care facility capital improvements and equipment; acquisition of water rights in the Pecos River basin; acquisition, construction and modification of wastewater facilities; rehabilitation of state parks statewide; and state fair renovation and improvements * * *.
Id. at § 13 (statement of question to be submitted in the ballot used at the 1992 general election). Article IX, Section 8 of the New Mexico Constitution provides that any such law be “for some specified work or object” and shall take effect only upon receiving a majority of all votes cast thereon when submitted to the voters at a general election.
We have not dealt previously with the “specified work or object” language of Article IX, Section 8, but we have addressed the legislative practice of joining together two or more independent measures so those who support any one measure will feel obliged to vote for. the others in order to secure passage of the measure they favor. This is the practice of “logrolling.” State ex rel. Chavez v. Vigil-Giron, 108 N.M. 45, 47, 766 P.2d 305, 307 (1988) (construing Article XIX, Section 1, which mandates that two or more constitutional amendments “be so submitted as to enable the electors to vote on each of them separately”).
We have found logrolling of propositions in bond issue elections to be constitutionally impermissible under provisions of the Constitution parallel to Section 8 that restrict indebtedness of counties, school districts, and municipalities. See N.M. Const, art. IX, §§ 10-12; Lanigan v. Town of Gallup, 17 N.M. 627, 642-44, 131 P. 997, 1003 (1913) (construing Section 12; enlargement of water system was independent of creation of a sewer system, i.e., they do not share an identity of purpose and one could naturally be operated without the other, therefore, the people should be allowed to vote on them separately); Johnston v. Board of Educ., 65 N.M. 147, 333 P.2d 1051 (1958) (construing Section 11; bond issue to finance construction of several school buildings and purchase of sites, some immediate and some in the future, was a single proposition, to wit, providing proper school facilities); White v. Board of Educ., 42 N.M. 94, 99, 75 P.2d 712, 715 (1938) (ruling that plaintiff was barred from challenging bond issue to finance both a high school and a grade school, in dicta the Court said: “We have no hesitancy in saying that the construction of a high school building and a grade school building from proceeds of one bond issue * * * presents but a single proposal.”); Dickinson v. Board of Comm’rs, 34 N.M. 337, 281 P. 33 (1929) (construing Section 10; while jail and courthouse in one building might be a single proposition, the wording of the petition calling for the bond election and the treatment of the question by the Board of Commissioners showed that each were separate from the other and therefore constituted a double proposition); City of Albuquerque v. Water Supply Co., 24 N.M. 368, 379-80, 174 P. 217, 220 (1918) (holding bond issue worded as providing funds for “purchase or erection” of water system (purchase existing privately owned system or build a new system) was a single proposition, to wit, to acquire a water system).
Construing Section 12, Lanigan is the seminal case in which this Court said that the purpose of requiring an election is to give the voters the opportunity to express their approval or disapproval of a proposed improvement, and that the sub mission of multiple proposals on a single ballot defeats such purpose. See Lanigan, 17 N.M. at 643, 131 P. at 1003. The Court reasoned that to be meaningful, electoral approval must be of single propositions. Id. Like Section 12, Section 8 requires that the legislature submit bond propositions to the voters. Accordingly, the basic rationale of Lanigan requiring single propositions for approval would be equally applicable to Section 8. More decisively, Section 8 contains language not found in Sections 10 through 12: that the authorization for the debt must be “for some specified work or object.” This singular language strengthens our conviction that the framers intended State indebtedness to be subject to the approval of the voters of New Mexico one proposition at a time. We hold that the purpose of the “specified work or object” language is to prevent logrolling.
Having held that Article IX, Section 8 prohibits logrolling, we turn next to the question of whether the proposed ballot wording of the 1992 Bond Act constitutes logrolling. In Section 2 of the 1992 Bond Act, the legislature specifically found the projects to be “necessarily related to each other to accomplish [the betterment of the welfare of the people] and that the authorized projects are interrelated.” The legislature further found that
in order to fulfill these purposes, the voters of the state should consider the 1992 Capital Projects General Obligation Bond Act as set forth in Section 13 of that act and that presenting the question to the voters in a unified ballot question that specifies the specific works or objects as required by the constitution is constitutional and gives fair notice of the intended issuance of bonds and use of public funds.
We need only restructure, in the context of this case, that which we acknowledged in Chavez. As in Chavez, “the question to be answered is whether the legislature reasonably could have determined that [the 1992 Bond Act] embraces but one object.” Chavez, 108 N.M. at 48, 766 P.2d at 308. Also, “we believe it comports better with the doctrine of separation of powers to decide what rationally may be joined rather than what rationally may be separated.” Id. The legislature must be deemed to appreciate no less than we the intent of the Constitution to avoid logrolling by prohibiting joinder of distinct projects that are not dependent upon each other, and that have no direct, necessary, or logical connection between the operation of each project. Id. Yet, while we will accord strong deference to the legislative findings, it is for this Court in the final analysis to rule on issues of constitutionality.
The Secretary of State argues that the specified object of the 1992 Bond Act is to fund public capital improvements and acquisitions for the betterment of the welfare of the people of New Mexico and compares that object to other bills passed by the 1992 legislature. The projects are germane to an overarching object of welfare, she asserts, and certainly they are. We must agree, further, that the object of funding capital outlay is rationally separate from the objects of other legislation. But that is not the test. In analyzing whether a law authorizing a bond election contains single or multiple objects, we look not at whether the authorizing law is separate from other acts of the legislature, but to whether the authorizing law itself contains a separate proposition or object. See Lanigan, 17 N.M. at 639, 131 P. at 1001-02 (“Every statute or constitutional provision must be construed with reference to the object intended to be accomplished by it.”). A “specified work or object” is defined by the rational interrelationships of its parts. See Johnston, 65 N.M. at 150, 333 P.2d at 1053 (“[I]n order to constitute a single proposition or question there must exist a natural relationship between the objects covered by the ballot so that they form but one rounded whole or single plan.” (quoting Buhl v. Joint Indep. Consol. Sch. Dist. No. 11, 249 Minn. 480, 82 N.W.2d 836, 838 (1957))); Carper v. Board of County Comm’rs, 57 N.M. 137, 142, 255 P.2d 673, 676 (1953) (in determining whether there are multiple propositions as prohibited by applicable statute, question is whether there “is the existence of a natural relationship between the various structures or ob jects united m one proposition so that they form, as the courts express it, ‘but one rounded whole’ ” (quoting 4 A.L.R.2d 617, 630)). In Chavez, we could not ignore the rational linchpin joining the qualifications and merit selection of judges, their numbers, their districting, and the selection of their chief administrative officers, and we held that, “although perhaps testing the limits of joinder, the provisions in this amendment are not devoid of a reasonable or rational basis of commonality.” Chavez, 108 N.M. at 49, 766 P.2d at 309.
“The betterment of the welfare of the people” is not a specified object that necessarily relates capital outlay projects to each other. Such a test for commonality does not satisfy the constitutional purpose of avoiding logrolling. To the contrary, it is a standard that would encourage logrolling. The dissent points persuasively to the obvious: that the success or failure of specified expenditures, if separately stated, well may depend upon the percentage of population residing in the area affected. By implication, the dissenter argues in favor of such logrolling as may be approved by the legislature to achieve equity in state-wide capital improvement projects. For optimum likelihood of passage, questions related to capital improvements in less populated areas would have to await a year in which they could be joined in a ballot with projects in more populated areas. On the other hand, who is to say that a capital outlay proposed for the less populated area is not a boondoggle sought to be carried on the coattails of legitimate questions. If the Constitution prohibits logrolling, and it does, this 1992 Bond Act is the target of that prohibition, for good or for bad. The intent of the Constitution is satisfied only by a legislative enactment in which the parts of the project may be identified by a common character or by a dependent, but logical, interrelationship between projects. Section 13 of the 1992 Bond Act lumps together objects with no commonality but “welfare” and which do not interrelate.
In Section 12 of the 1992 Bond Act, the legislature provides that should the statement of the ballot question set out in Section 13 be held unconstitutional by a court of competent jurisdiction, the Secretary of State shall submit the bond issue to the voters in accordance with the alternative statement of the ballot question provided in Section 14. In Section 14, the legislature did bring together, under nine separate questions, those projects having a common character. We defer to the rational joinder made by the legislature of projects of a common character under those nine separate objects. We believe the legislature has, in Section 14 of the 1992 Bond Act, properly joined projects of a common character.
BACA, MONTGOMERY and FRANCHINI, JJ., concur.
FROST, J., dissents.
. The Constitution states that "No debt ... shall be contracted by or on behalf of this state, unless authorized by law for some specified work or object; which law shall provide for an annual tax levy sufficient to pay the interest and to provide a sinking fund to pay the principal of such debt within fifty years from the time of the contracting thereof. No such law shall take effect until it shall have been submitted to the qualified electors of the state and have received a majority of all the votes cast thereon at a general election * * *." N.M. Const, art. IX, § 8. | [
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OPINION
MONTGOMERY, Justice.
According to a leading authority on the law of criminal homicide in New Mexico,
No New Mexico case reviewing a deliberate intention first degree murder conviction has ever held that the evidence did not support a deliberate murder but instead supported no more than a nondeliberate or impulsive second degree murder.
Leo M. Romero, A Critique of the Willful, Deliberate, and Premeditated Formula for Distinguishing Between First and Second Degree Murder in New Mexico, 18 N.M.L.Rev. 73, 84 (1988).
This case fills that gap.
I.
David Garcia was convicted of first degree murder by the District Court of Curry County on January 30, 1991. The conviction arose out of the stabbing death of Ray Gutierrez on April 27, 1990, in Clovis, New Mexico.
Garcia and Gutierrez apparently had been friends or acquaintances for some time before April 27, 1990. Around noon that day, Garcia, Gutierrez, and two other friends purchased some beer and whiskey and went to drink it at the house of Julian Hidalgo, where several other people had gathered and were having a party. Garcia had been drinking beer throughout the morning and the night before. The two friends who accompanied Garcia and Gutierrez were Clara Pelland, Gutierrez’s girlfriend, and Maria Delgado.
After the four arrived at Hidalgo's house, they went into the back yard, and Garcia and Gutierrez began arguing. The argument concerned an incident that had occurred about a month earlier, when Garcia had kicked Pelland. Apparently, Gutierrez was still angry about the incident; at any rate, Pelland had remarked earlier in the day that there was likely to be trouble between Garcia and Gutierrez.
In Hidalgo’s back yard, Garcia and Gutierrez argued for a while, then appeared to make up, then resumed arguing. According to Pelland’s testimony at the trial, Delgado started the second argument and told the two men that they should “take it [their argument] to the street.” At this point, Pelland heard Garcia say, “Remove Ray away from me or you’re not going to be seeing him for the rest of the day.” Garcia and Gutierrez apparently made up a second time and went to the corner of the back yard. Pelland testified that about five minutes later she realized that Garcia and Gutierrez were no longer in the back yard. When she asked where the two men had gone, Delgado told her they had gone to the front yard.
Pelland testified that she then tried to go to the front yard, but that a man blocked her way. She struggled with him for five or ten minutes before she finally got to the front yard. When she arrived in the front yard, she saw Garcia jabbing Gutierrez in the chest with a knife, and she saw Gutierrez fall down. Gutierrez’s face was “all sliced up.” She grabbed Gutierrez and shouted at Garcia, “Look what you did to my boyfriend.” Garcia replied, “I’m going to mess you up like I messed up your boyfriend. I’ll be seeing you soon.” Pelland replied, “Come on, I’m right here. Go for it.” Garcia responded, “No, your day will be coming soon.”
Another witness at the trial, ten-year-old Chloe Goode, testified that when she first saw Garcia and Gutierrez, they were shaking hands in the back yard. Later, she saw them arguing and punching each other in the front yard. She said she saw Garcia grab Gutierrez and shove him against the wall. She testified that she only saw Garcia hitting Gutierrez; she did not see the actual stabbing. -
The stabbing occurred at approximately 3:30 p.m. on April 27. Pelland testified that she saw Garcia drink at least ten beers and three shots of whiskey that afternoon.
After the stabbing, Officer Reeves arrived to investigate the incident. He determined that Garcia was a suspect and began to search for him. Officer Reeves went to a house on Pinon Street and asked if anyone there had seen Garcia. The people at the house said they had not seen him. However, Officer Reeves later realized, he testified, that one of the men who denied having seen Garcia was Garcia himself.
Approximately seven hours after the stabbing, at about 10:30 p.m., Officer Miller received a call that Garcia was at his parents’ home and that he was voluntarily turning himself in. When Officer Miller arrived at the residence, he told Garcia to come out of the house. Garcia then stepped outside and said, “I did it. I did it. I’m not ashamed to admit it. I told my brother I did him and I’d do him again.”
On June 8, 1990, the State charged Garcia with an open count of murder. Before trial, defense counsel moved for a forensic examination to evaluate Garcia’s mental condition. The court granted the motion and set the case for trial. Then, two days before the trial was to begin, defense counsel moved for a continuance so that a neurological evaluation could be performed on Garcia. The trial court denied the motion and the case proceeded to trial.
At the close of the State’s case, Garcia moved for a directed verdict, arguing that the State had not proved beyond a reasonable doubt that Garcia had the specific intent to commit first degree murder. The court denied the motion. The court then instructed the jury on first degree murder, second degree murder, voluntary manslaughter, and battery. The court also instructed the jury on sufficient provocation and inability to form intent because of intoxication. The jury found Garcia guilty of first degree murder, and he was sentenced to mandatory life imprisonment.
Garcia raises two arguments on appeal. First, he asserts that there was insufficient evidence to support his conviction of first degree murder and that the trial court erred in denying his motion for a directed verdict. Second, he argues that the trial court, in denying his motion for a continuance for a neurological evaluation, deprived him of his fifth amendment right to present a defense.
We agree that the evidence was not sufficient to permit the jury to find that Garcia was guilty of first degree murder. There was no evidence enabling the jury to find, beyond a reasonable doubt, that defendant had the requisite state of mind — a “willful, deliberate and premeditated” intention to kill Gutierrez — to support a conviction of first degree murder. This holding makes it unnecessary to consider Garcia’s second argument on appeal. That argument asserts that the requested neurological evaluation would have tended to establish that Garcia was incapable of forming the specific intent to commit first degree murder. See State v. Privett, 104 N.M. 79, 80, 717 P.2d 55, 56 (1986) (specific, deliberate intent to kill is an essential element of first degree murder). Since we hold that the evidence was insufficient to permit a finding of the requisite specific intent, and since Garcia’s requested neurological evaluation would have been irrelevant to the charge of second degree murder, we need not reach the issue of whether the court erred in refusing to grant Garcia’s motion for a continuance. See State v. Beach, 102 N.M. 642, 644-45, 699 P.2d 115, 117-18 (1985) (second degree murder is not a specific intent crime; diminished capacity is not a defense to charge of second degree murder).
For the following reasons, we reverse the judgment below and remand for a new trial on the offenses of second degree murder and voluntary manslaughter.
II.
In New Mexico, first degree murder is defined as “any kind of willful, deliberate and premeditated killing.” NMSA 1978, § 80-2-1(A)(1) (Repl.Pamp.1984). The courts of this state have construed this definition to mean “a killing with the deliberate intention to take away the life of another.” Romero, supra at 83 (citing, inter alia, State v. Valenzuela, 90 N.M. 25, 30, 559 P.2d 402, 407 (1976); State v. Vigil, 87 N.M. 345, 350, 533 P.2d 578, 583 (1975); State v. Aragon, 85 N.M. 401, 403, 512 P.2d 974, 976 (Ct.App.1973)). The statute itself does not define “deliberate intention.” However, our Uniform Jury Instructions for Criminal Cases (UJI Crim.) define “deliberate” as
arrived at or determined upon as a result of careful thought and the weighing of the consideration for and against the proposed course of action. A calculated judgment and decision may be arrived at in a short period of time. A mere unconsidered and rash impulse, even though it includes an intent to kill, is not a deliberate intention to kill. To constitute a deliberate killing, the slayer must weigh and consider the question of killing and his reasons for and against such a choice. SCRA 1986, 14-201. The court gave this instruction in this case.
Although our courts have agreed on the meaning of first degree murder, and although this Court has promulgated a uniform jury instruction defining in some detail the meaning of “deliberate,” we (the appellate courts) probably have not been especially helpful in distinguishing first degree murder from second degree murder. See Romero, supra at 73, 77, 84-86. As Dean Romero suggests, “Without guidance with respect to the types of evidence that will support a deliberate murder, virtually all intentional killings will result in jury instructions on first degree murder and the jury will be left to apply its own conception of what deliberate intention means.” Id. at 86.
There is no question that the distinction between first degree murder and second degree murder is of great importance to the administration of criminal justice in New Mexico — to say nothing of its importance to a defendant who stands accused, as Garcia did, under an “open” charge of murder. The distinction differentiates between those killings that are the most heinous and reprehensible, and therefore deserving of the most serious punishment under this state’s law, and those which, although “intentional” in some sense, lack the gravity associated with first degree murders. Under our law, first degree murder is a capital felony, which carries a penalty of death or mandatory life imprisonment, whereas second degree murder is a second degree felony, which carries a penalty of nine years imprisonment. Clearly, when the legislature prescribed such serious penalties for a “willful, deliberate and premeditated killing,” it did not mean to lump within this classification all other killings, even those which may in some sense be intentional but which lack the characteristics of deliberation and premeditation.
The statute defining second degree murder does not use the words “intent” or “intentional,” but it has been construed by our Court of Appeals to include intentional killings. State v. Johnson, 103 N.M. 364, 370, 707 P.2d 1174, 1180 (Ct.App.), cert. quashed, 103 N.M. 344, 707 P.2d 552 (1985). Second degree murder is defined as a killing with knowledge that the killer’s act or acts “create a strong probability of death or great bodily harm” to the victim or another. NMSA 1978, § 30-2-1(B) (Repl.Pamp.1984). As the court said in Johnson, “an intentional killing would always include these elements” — i.e., the elements of killing with knowledge of the requisite probability. 103 N.M. at 370, 707 P.2d at 1180.
The court’s analysis in Johnson perhaps does not go far enough: Even though an intentional killing includes the element of knowledge of a strong probability of death or great bodily harm, the con verse is not necessarily true; a killing with knowledge of the requisite probability does not necessarily include an intentional killing. The legislature could have intended to exclude from second degree murder a killing in which there was an actual intent to kill as opposed to a killing with knowledge of the likelihood of death or great bodily harm. However, the statutory definition of murder provides: “Murder in the second degree is a lesser included offense of the crime of murder in the first degree.” Section 30-2-l(B). A lesser included offense is one that includes some, but not all, of the elements of a greater offense and that does not have any element not included in the greater offense, so that it is impossible to commit the greater offense without necessarily committing the lesser offense. State v. Garcia, 100 N.M. 120, 125, 666 P.2d 1267, 1272 (Ct.App.), cert. denied, 100 N.M. 192, 668 P.2d 308 (1983). When the legislature amended the Criminal Code in 1980 to redefine the offenses of first and second degree murder as set out in Section 30-2-1, it did so against the background of cases holding that intentional killings were embraced within second degree murder. The legislature also had, as background, the benefit of our uniform jury instruction defining “deliberate intention” in the same terms, verbatim, as are now contained in UJI 14-201. See NMSA 1953, 2d Repl.Vol. 6 (1972), UJI Crim. 2.00 (Supp.1975). We think it reasonable, therefore, to conclude that the legislature intended to exclude from second degree murder the element of deliberation but not to exclude otherwise intentional killings from that crime.
We thus approve the Court of Appeals’ construction of the second degree murder statute in Johnson. It follows that under New Mexico’s statutory scheme murder consists of two categories of intentional killings: those that are willful, deliberate, and premeditated; and those that are committed without such deliberation and premeditation but with knowledge that the killer’s acts create a strong probability of death or great bodily harm. Included within the second category is the kind of killing expressly contemplated by UJI Crim. 14-201 as not a deliberate murder — namely, a killing that, even though intentional, is committed on “[a] mere unconsidered and rash impulse,” i.e., a rash or impulsive killing.
III.
Was Garcia’s killing of Gutierrez deliberate and premeditated, or was it only rash and impulsive? There is no question that the jury could infer from the nature of the act itself — stabbing the victim in the chest after several quarrels — that the killing was willful — i.e., intentional. But was there evidence from which the jury could infer beyond a reasonable doubt that Garcia deliberated and premeditated before he stabbed Gutierrez?
A.
We might answer this question, as have so many cases before, by saying that on review of a defendant’s motion for a directed verdict we view the evidence in the light most favorable to the State, resolving all conflicts and indulging all permissible inferences in favor of a verdict of conviction. See, e.g., State v. Robinson, 94 N.M. 693, 696, 616 P.2d 406, 409 (1980); State v. Vigil, 87 N.M. 345, 349, 533 P.2d 578, 582 (1975). Many other cases of both this Court and the Court of Appeals have expressed a similar standard of review; but few have openly avowed, as part of that standard of review, that the evidence must be evaluated to determine whether the jury could rationally reach its verdict beyond a reasonable doubt.
One exception is State v. Sutphin, 107 N.M. 126, 753 P.2d 1314 (1988), in which we said:
An appellate court does not evaluate the evidence to determine whether some hypothesis could be designed which is consistent with a finding of innocence. Instead, the test to determine the sufficiency of evidence in New Mexico, which is the same as enunciated in Jackson, is whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction.
Id. at 130-31, 753 P.2d at 1318-19 (emphasis added) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).
In Jackson, the United States Supreme Court observed:
[A] properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt * * *. Under Winship, which established proof beyond a reasonable doubt as an essential of Fourteenth Amendment due process, it follows that when such a conviction occurs in a state trial, it cannot constitutionally stand.
# * >}: j}c # >}:
After Winship the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. * * * [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
443 U.S. at 317-19, 99 S.Ct. at 2788-89 (citing In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (due process requires proof beyond a reasonable doubt of every fact necessary to constitute crime with which accused is charged)).
Thus, under the standard laid down in Jackson and applied in cases like Sutphin, we perceive it to be an appellate court’s duty on review of a criminal conviction to determine whether any rational jury could have found each element of the crime to be established beyond a reasonable doubt. This does not involve substituting the appellate court’s judgment for that of the jury in deciding the reasonable-doubt question, but it does require appellate court scrutiny of the evidence and supervision of the jury’s fact-finding function to ensure that, indeed, a rational jury could have found beyond a reasonable doubt the essential facts required for a conviction.
B.
In this case, we believe that the evidence was not only insufficient to allow a rational jury to find the essential element of deliberation in Garcia’s stabbing of Gutierrez; it was altogether lacking to serve as a basis for any such inference. There was no evidence to support the jury’s conclusion that, as contemplated by the trial court’s instruction, Garcia decided to stab Gutierrez as a result of careful thought; that he weighed the considerations for and against his proposed course of action; and that he weighed and considered the question of killing and his reasons for and against this choice. On the contrary, the only evidence before the jury, direct or circumstantial, as to his state of mind before the killing was that he quarreled with Gutierrez, and then appeared to make up, in the back yard; that he then quarreled again in the front yard, trading punches with and shoving Gutierrez against a wall; and that he then cut his victim in the face and stabbed him in the chest. This evidence is consistent with a rash and impulsive killing; indeed, we do not hesitate to say that the jury properly found, beyond a reasonable doubt, that Garcia stabbed Gutierrez intending to kill him, or at least with knowledge that his acts created a strong probability of death or great bodily harm. But there was no evidence from which the jury could infer that, either in the back yard, while going to the front yard, or after they reached the front yard, Garcia formed the “deliberate,” as defined by the court’s instructions, intention to kill.
Hence, we disagree with the State’s assertion that “Clearly the fact that defendant went to the front yard to settle his dispute with Ray Gutierrez plus the fact that once in the front yard he attacked an unarmed Ray Gutierrez * * * with a knife is evidence of a plan or design from which the jury could infer that defendant formed a deliberate intent to kill Ray Gutierrez.” Relying on two New Mexico cases—State v. Blea, 101 N.M. 323, 681 P.2d 1100 (1984), and State v. Lucero, 88 N.M. 441, 541 P.2d 430 (1975) — the State argues that Garcia had sufficient time to form the deliberate intent to kill Gutierrez. Additionally, the State contends that Garcia’s actions after the stabbing provide evidence of a deliberate intent to kill.
We do not dispute the State’s contention that Garcia had sufficient time to form a deliberate intention to kill. As both Blea and Lucero recognize, a defendant can form the requisite intent for first degree murder in a short period of time. Blea, 101 N.M. at 326, 681 P.2d at 1103; Lucero, 88 N.M. at 443, 541 P.2d at 432. But what is a “short period of time”? A second or two? If so, then it is hard to see any principled distinction between an impulsive killing and one that is deliberate and premeditated. Garcia certainly could have formed a deliberate intent during the ten to fifteen minutes while going from the back yard to the front yard, but nothing in the evidence enabled the jury to infer that this is when he formed the requisite deliberate intent, or that he ever formed such an intent.
Garcia’s comment in the back yard, “Remove Ray away from me or you’re not going to be seeing him for the rest of the day,” does not provide the foundation for such an inference. Although it suggests that Garcia intended to fight Gutierrez, it certainly does not indicate an intent to kill. Similarly, Garcia’s comments after the stabbing are not probative of an intent to kill. His threatening remarks to Pelland in the front yard — that he was going to “mess her up” like he messed up Gutierrez — do not indicate whether he had intended to kill Gutierrez. The same is true with regard to his actions in concealing his identity from Officer Reeves at the Pinon Street house: The jury could easily infer that Garcia, having stabbed and killed Gutierrez, desired to conceal his identity; but that understandable desire did not give rise to any inference as to his state of mind before the stabbing.
Garcia’s voluntary confession to Officer Miller, “I told my brother I did him and I’d do him again,” is probably the State’s strongest evidence of a deliberate intent to kill. It provides direct evidence of Garcia’s desire to kill Gutierrez again if given a second chance. That confession, however, while expressing an intent to kill Gutierrez again if given the opportunity, does not show that Garcia deliberated and intended to kill his victim before the stabbing. All we know is that the parties argued in the back yard and decided to “take it to the street,” and that ten to fifteen minutes later Garcia stabbed Gutierrez. From this evidence, the jury could infer with equal probability that Garcia did or did not form an intent to kill Gutierrez before he actually did so. However, “[evidence equally consistent with two hypotheses tends to prove neither.” Herron v. State, 111 N.M. 357, 362, 805 P.2d 624, 629 (1991). In other words, evidence equally consistent with two inferences does not, without more, provide a basis for adopting either one — especially beyond a reasonable doubt.
Accordingly, Garcia’s conviction for first degree murder is reversed.
IT IS SO ORDERED.
RANSON, C.J., and FRANCHINI, J., concur.
. Under NMSA 1978, Section 31-18-14 (punishment for capital felony (first degree murder) is life imprisonment or death) and under Section 31-21-10(A) (life imprisonment entails minimum incarceration of thirty years before parole eligibility).
. The statute also defines first degree murder as a killing in the commission of or attempt to commit any felony (felony murder), or by any act greatly dangerous to the lives of others (depraved mind murder). Subsections 30-2-1(A)(2) & (3). This case does not involve either of these two latter types of murder.
. In State v. Ortega, 112 N.M. 554, 567 n. 13, 817 P.2d 1196, 1209 n. 13 (1991), we expressed some reservations about the elaborateness with which this instruction enlarges upon the statutory phrase, "willful, deliberate and premeditated." However, this case presents no issue as to the propriety of the instruction; it is one of our prescribed uniform jury instructions, was given in this case without objection, and in any event is the law of the case on this appeal. We therefore review the sufficiency of the evidence offered to prove deliberation as defined in the instruction.
. The death penalty can be imposed when the sentencing jury unanimously finds that one or more of several aggravating factors were present and unanimously agrees to impose a death sentence. See §§ 31-20A-3, -5 (including, among aggravating factors, victim’s status as police officer acting in discharge of official duty, commission of murder while committing or attempting to commit certain serious felonies, commission of murder while attempting to escape incarceration, commission of murder for hire, and murder of a witness to a crime for purpose of preventing report of the crime).
. As indicated in footnote 1, life imprisonment entails a mandatory term of thirty years imprisonment without possibility of parole, Section 31-21-10A, or reduction through “good time” credits. See Martinez v. State, 108 N.M. 382, 383, 772 P.2d 1305, 1306, cert. denied, 493 U.S. 833, 110 S.Ct. 107, 107 L.Ed.2d 70 (1989).
. See §§ 30-2-l(B), 31-18-15(A)(2). This penalty is the basic sentence, which is subject to aggravation or mitigation by as much as one-third in the trial judge's discretion under Section 31-18-15.1 and against which good time credits can be applied under Section 33-2-34.
. State v. Smith, 26 N.M. 483, 493, 194 P. 869, 872-73 (1921); see also State v. Aragon, 85 N.M. 401, 403, 512 P.2d 974, 976 (Ct.App.1973) (second degree murder is murder with premeditation or malice aforethought, but without deliberation); State v. Sanchez, 27 N.M. 62, 64, 196 P. 175, 175 (1921) (same).
. E.g., State v. Manus, 93 N.M. 95, 98, 597 P.2d 280, 283 (1979) (“In determining whether substantial evidence was presented to support charges, an appellate court must view the evidence in the light most favorable to the State and indulge all reasonable inferences which support the conviction.”); State v. Lankford, 92 N.M. 1, 2, 582 P.2d 378, 379 (1978) ("In determining whether the evidence supports a criminal charge or an essential element thereof, the appeals court must view the evidence in a light most favorable to the state, resolving all conflicts therein and indulging all permissible inferences therefrom in favor of a verdict of conviction.”); State v. Romero, 111 N.M. 99, 101, 801 P.2d 681, 683 (Ct.App.) ("The question presented by a motion for directed verdict is whether there is substantial evidence supporting the charge.”), cert. denied, 111 N.M. 77, 801 P.2d 659 (1990). None of these cases mentions the requirement of proof beyond a reasonable doubt in connection with the court’s substantial evidence review. | [
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OPINION
BIVINS, Judge.
This case is a domestic relations action involving the division of the parties’ retirement benefits upon the dissolution of their marriage. Husband is presently retired and is receiving civil service retirement benefits. The trial court awarded each party half of Husband’s retirement benefits. Although Wife’s civil service retirement benefits have vested, Wife has not yet retired and at trial indicated that she had no present intention to retire. Husband contended at trial that the court should award him his portion of Wife’s retirement benefits when Wife becomes eligible to retire even if Wife chooses to continue working. The trial court awarded Husband his interest in Wife’s retirement benefits when Wife retires.
The sole issue in this appeal is whether the trial court erred in holding that Husband would not receive his interest in Wife’s retirement benefits until Wife’s retirement. This case is controlled by our recent decision in Ruggles v. Ruggles, 114 N.M. 63, 834 P.2d 940 (Ct.App.1992). In Ruggles, we held that “pay as it comes in” under Schweitzer v. Burch, 103 N.M. 612, 711 P.2d 889 (1985), means that pensions should be divided when actually received, not, as argued by Husband here, at the earliest date they could potentially be received. We therefore affirm the decision of the trial court.
Judge Donnelly’s dissent makes a strong argument for immediate distribution to a non-employee spouse of his or her community interest in the employee-spouse’s retirement benefits, which are vested and matured, when the employee-spouse postpones distribution of those benefits by electing to continue to work. This court in Mattox v. Mattox, 105 N.M. 479, 734 P.2d 259 (Ct.App.1987), was similarly disturbed by the inequity of allowing the employee-spouse to unilaterally delay payment of retirement benefits to the detriment of the other spouse. In that case, we relied on In re Marriage of Gillmore, 29 Cal.3d 418, 174 Cal.Rptr. 493, 629 P.2d 1 (1981), to support immediate division of the retirement benefits. We were only able to reach that result because of the prospective application of Schweitzer v. Burch, 103 N.M. 612, 711 P.2d 889 (1985). See Mattox, 105 N.M. at 484 n. 3, 734 P.2d at 264 n. 3 (where we recognized the “pay as it comes in” method was now mandatory). Mattox slipped through just before the gate closed and should not be read as modifying Schweitzer. See Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778 (1973).
While it may seem unfair to require the non-employee spouse to wait until the employee-spouse retires to receive his or her share of retirement benefits, there is a countervailing inequity, as Judge Donnelly notes in his discussion of Schweitzer, in granting to the non-employee spouse an amount that might not even be received if the employee-spouse dies before the benefits are paid out. Thus, it is easy to see two inequities which result in a “Hobson’s Choice.”
On the one hand, by delaying distribution until the employee-spouse retires, the non-employee spouse is deprived of his or her share of a community asset distributable in cases where the interest is vested and matured but for the employee-spouse’s election to continue working. On the other hand, if the employee-spouse is required to pay the non-employee spouse his or her share of the then vested and matured but not yet received retirement benefits, or set aside property equal in value to that inter est, the employee-spouse also suffers a detriment. The longer the employee-spouse works, the less retirement benefits that spouse will receive. In other words, the value of the benefits decreases each day the employee-spouse continues to work beyond the date of eligibility. Similarly, the employee-spouse suffers a potential detriment if he or she dies before receiving the retirement benefits. In either case, that spouse will have paid the non-employee spouse his or her share of the benefits without receiving an equivalent share. Moreover, it is certainly conceivable that an employee-spouse could be forced into retirement in situations where the economics would not allow continuation of employment.
This approach finds support in cases dealing with division of other marital assets upon divorce. In Cox v. Cox, 108 N.M. 598, 775 P.2d 1315 (Ct.App.), cert. denied, 108 N.M. 624, 776 P.2d 846 (1989), this court found it more equitable to require a spouse to pay goodwill “in the future as and when it is actually received” rather than pay to his or her spouse a share of current value of the business. Id. 108 N.M. at 601, 775 P.2d at 1318. We reasoned that this approach “precludes having the professional spouse pay a lump sum at the time of the dissolution for goodwill which may never actually be received. It prevents a ‘hypothetical forced sale’ of the business.” Id.
In addition, we believe that implicit in Schweitzer is the recognition that there is no way to achieve total fairness and a policy that favors people continuing to be productive citizens as long as they are able, even beyond retirement eligibility. This policy is consistent with legislation that disfavors job discrimination based on age. See, e.g., NMSA 1978, § 28-1-7(A) (Repl.Pamp.1991).
For the reasons stated, we affirm the trial court.
IT IS SO ORDERED.
ALARID, C.J., concurs.
DONNELLY, J., dissents. | [
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OPINION
DONNELLY, Judge.
Protestants of a land use variance granted by the Village of Jemez Springs (Village) to the Jemez Mountains Electric Cooperative, Inc. (Applicant), appeal from an order of the district court dismissing their petition for a writ of certiorari. This appeal presents two issues: (1) whether the district court erred in determining that the failure to join Applicant as a party for review required dismissal of the petition for review and writ of certiorari; and (2) whether the district court abused its discretion in denying Protestants’ request for leave to amend their petition in order to join Applicant as a party to the proceeding. For the reasons discussed herein, we reverse and remand.
FACTS
In June 1989 Applicant began using its land to store property and industrial equipment. Roger and Linda Sweet (Protestants), adjoining property owners, protested Applicant’s actions to the Village Planning Commission. The Village Planning Commission responded by urging Applicant to submit a request for a land use variance.
Applicant filed an application for a land use variance and the Zoning Commission approved the application on August 29, 1989. The Village Council reviewed the action of the Zoning Commission on September 6,1989. The Village voted to grant the requested variance.
On October 6, 1989, Protestants filed a petition for writ of certiorari and review with the district court, pursuant to NMSA 1978, Section 3-21-9 (Repl.1985), seeking a review of the ruling of the Village Council and its Planning and Zoning Commission. Thereafter, the Village moved to dismiss the petition for lack of jurisdiction, alleging, among other things, that Protestants had failed to join Applicant in the action, and that Applicant was an indispensable or necessary party to the proceeding. Protestants denied that Applicant was a party required to be joined under Section 3-21-9, but later moved to join Applicant as a party to the proceeding.
After a hearing on the pending motions, the court dismissed Protestants’ petition for review and the writ of certiorari, held that Applicant was “a real party in interest and an indispensable party,” and that the failure to timely join Applicant deprived the court of jurisdiction.
JURISDICTION OF COURT
Protestants argue that the district court erred in determining that they had failed to join an indispensable or real party in interest or that nonjoinder of Applicant necessitated dismissal of their petition for review. They contend that Section 3-21-9, governing the method for obtaining review of decisions of the Village, is silent as to any requirement requiring joinder of an applicant for a land use variance.
The Village, although agreeing that Section 3-21-9 does not specifically embody a requirement that an applicant for a land use variance be named in the petition for review of the Village’s decision, contends that joinder of Applicant is implicitly required under the statute and SCRA 1986, 1-019.
Section 3-21-9 provides in applicable part:
A. Any person aggrieved by a decision of the zoning authority, or any officer, department, board or bureau of the zoning authority may present to the district court a petition, duly verified, setting forth that the decision is illegal, in whole or in part, and specifying the grounds of the illegality. The petition shall be presented to the court within thirty days after the decision is entered * * *. [Emphasis added.]
The term “presented” as contained in Section 3-21-9 is synonymous with “filing.” See Butcher v. City of Albuquerque, 95 N.M. 242, 620 P.2d 1267 (1980). Under Rule 1-019(A), a party subject to service of process is required to be joined as a party to an action if:
(1) in his absence complete relief cannot be accorded among those already parties; or
(2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may:
(a) as a practical matter impair or impede his ability to protect that interest; or
(b) leave any of the persons already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party.
SCRA 1986, 1-065(D)(2) also specifies matters required to be set out in a petition for a writ of certiorari. The rule directs that the petition shall, “if the respondent is a public officer, board or tribunal, purporting to act in the discharge of official duties, [include] the names of the real parties in interest[.]”
The supreme court in Mitchell v. City of Santa Fe, 99 N.M. 505, 660 P.2d 595 (1983), held that where a property owner sought judicial review from the decision of the Santa Fe City Council under Section 3-21-9, which named only the city as the respondent, the petition for appeal was sufficient to invest the district court with jurisdiction. In Mitchell the petitioner filed a petition for judicial review in the district court pursuant to Section 3-21-9 seeking appellate review of the city council’s action, which gave preliminary approval to a developer to develop property located within the city’s historical zone. The district court dismissed the petition and held that Section 3-21-9 restricted the appellant to seeking review of the city’s decision by writ of certiorari and that the petition filed by the appellant was insufficient because it failed to request issuance of such writ.
The court in Mitchell reversed the order of the district court and held that Section 3-21-9 invested the district court with jurisdiction to hear such petition and that “we view [Section 3-21-9] as including both petitions for review and writs of certiorari.” Id. at 507, 660 P.2d at 597. The supreme court further held that the timely filing of the petition for review invested the district court with jurisdiction to hear the petition for appeal, and that the petition “contained all the necessary allegations required by statute. It was timely filed, it is legally sufficient to apprise the City and Developers of the issues on appeal, and it provides a basis for a hearing and the proper disposition of the matter on its merits.” Id. (citation omitted).
The petition for review in the present ease did not name Applicant as a party to the appeal, but the petition, similar to the one filed in Mitchell, identified Applicant in the body of the petition. Comparison of the petition in the case before us with the petition filed in Mitchell indicates that it satisfied each of the legal requirements necessary to invoke appellate review.
The court in Mitchell, although holding that the appellant’s appeal complied with the requirements of Section 3-21-9, did not expressly address the question of whether a successful applicant for a variance to a land use ordinance is an indispensable or necessary party to an appeal under such statute.
Protestants contend that an applicant for a land use variance is not an indispensable or necessary party to an appeal or action seeking review of the decision of the zoning or land use authority. See City of Homewood v. State, City of Birmingham, 358 So.2d 424 (Ala.1978); Brigham v. Dade County, 305 So.2d 756 (Fla.1974); Mobley v. City of Thomasville, 97 Ga.App. 855, 104 S.E.2d 586 (1958); Leventhal v. Michaelis, 29 Misc.2d 831, 219 N.Y.S.2d 508 (Sup.Ct.1961). Courts in other jurisdictions have reached an opposite result. See Beresford Neighborhood Ass’n v. City of San Mateo, 207 Cal.App.3d 1180, 255 Cal.Rptr. 434 (1989); Thorne v. Board of County Comm’rs, 638 P.2d 69 (Colo.1981) (en bane); Noblitt v. Metropolitan Plan Comm’n, 131 Ind.App. 503, 172 N.E.2d 583 (1961); Lanaux v. City of New Orleans, Bd. of Zoning Adjustments, 489 So.2d 329 (La.Ct.App.1986); Caron v. City of Auburn, 567 A.2d 66 (Me.1989); State ex rel. Henze v. Wetzel, 754 S.W.2d 888 (Mo.Ct.App.1988); Spanish Wells Property Owners Ass’n v. Board of Adjustment, 295 S.C. 67, 367 S.E.2d 160 (1988); Tellinghuisen v. King County Council, 38 Wash.App. 24, 684 P.2d 748, rev’d on other grounds, 103 Wash.2d 221, 691 P.2d 575 (1984).
The authorities relied upon by the Village articulate the majority rule. In Spanish Wells Property Owners Ass’n the South Carolina Supreme Court noted the differences in decisions on this issue and observed:
Other jurisdictions are divided on whether the permittee or successful applicant [for a land use or zoning variance] is a necessary party to an appeal instituted by an aggrieved party. The emerging majority view is that the permittee is a necessary party. See 3 Rathkopf, The Law of Zoning and Planning § 42.05[3] (4th Ed.1980 & Supp.1987) (citing numerous cases espousing “ascending” view); 101A C.J.S. Zoning and Planning § 301 (1979).
We find the reasoning behind the majority rule convincing. Designating the permittee a necessary party insures the most vitally interested party’s participation in the appellate process. See Cathcart-Maltby-Clearview Community Council v. Snohomish County, 96 Wash.2d 201, 634 P.2d 853 (1981) (owner-applicant is party “most affected” and is necessary to any proceeding to invalidate his interest).
367 S.E.2d at 161.
We think the majority rule recognized in Spanish Wells Property Owners Ass’n is designed to ensure joinder of parties whose interests may be materially affected by subsequent judicial action and we agree with the Village that under Section 3-21-9 and Rule 1-065(D)(2), where the party bringing the appeal seeks to overturn a decision authorizing a zoning variance, the applicant for the variance is an indispensable or necessary party.
Resolution of this issue, however, is not dispositive of the case before us. The Village argued below, and the district court held, that Protestants failed to timely move to join Applicant as a party to the appeal. Accordingly, we next review the question of whether the failure of Protestants to initially join Applicant as a party to the appeal within the thirty-day period prescribed by Section 3-21-9 deprived the court of jurisdiction to hear the appeal.
DENIAL OF LEAVE TO AMEND
Following the filing of Protestants’ petition for review and writ of certiorari on October 6, 1989, the Village moved to dismiss Protestants’ petition based on their failure to join Applicant as an indispensable or necessary party. After the Village moved to dismiss on January 2, 1990, Protestants requested leave to amend their petition for writ of certiorari in order to join Applicant as a party to the proceeding. The district court denied Protestants’ motion for leave to amend and found that Protestants “failed to timely file a motion before this Court to join the [Applicant].” The record in the instant'case indicates that Protestants filed their petition for review and writ of certiorari on the final day permitted for obtaining review. The motion to add Applicant as a party to their petition for review was not filed until after January 2, 1990, almost three months after the date of filing of the petition.
Protestants argue that even if Applicant was required to be joined in their application for review and writ of certiorari, their failure to initially join an indispensable or necessary party did not automatically deprive the district court of jurisdiction because under Rule 1-019 a necessary party may be subsequently joined in the action. Protestants contend that the court abused its discretion in ruling that they were precluded from adding Applicant as a party under SCRA 1986, 1-015(C).
In C.E. Alexander & Sons, Inc. v. DEC International, Inc., 112 N.M. 89, 811 P.2d 899 (1991), the supreme court considered the effect of a failure to join an indispensable or necessary party to an action, noting that an absence of joinder of an indispensable or necessary party under Rule 1-019 is no longer deemed a jurisdictional defect. The court also observed:
The current rule [1-019] articulates a .balancing test to determine whether a suit can continue without a party, and it leaves to the court’s discretion the performance of that test. See Envirotech Corp. v. Bethlehem Steel Corp., 729 F.2d 70 (2d Cir.1984) (Rule 19(b) gives district court substantial discretion to weigh factors and determine whether a suit can continue without joinder, i.e. it involves more of a factual than legal determination, and review is limited to abuse of discretion); Cloverleaf Standardbred Owners Ass’n v. National Bank, 699 F.2d 1274, 1277 (D.C.Cir.1983). Under the current rule, we do not consider the test of indispensability to be jurisdictional, and we hereby overrule precedent to the contrary. [Emphasis added.]
112 N.M. at 91, 811 P.2d at 901.
C.E. Alexander & Sons, Inc. did not expressly discuss the issue raised in the instant case, i.e., whether a failure to join an indispensable or necessary party to a petition for review filed under Section 3-21-9 may be cured by a motion to join an omitted party after the thirty-day period for seeking review has expired.
Both parties rely upon decisions from other jurisdictions as authority in resolving the issue of whether it is mandatory that a successful applicant for a zoning variance be joined as an indispensable or necessary party to an appeal or review by certiorari within the time prescribed by statute.
We are not persuaded that the district court is precluded by the time limits in Section 3-21-9 from adding Applicant as a party. Under Rule 1-019, an indispensable or necessary party may be joined as a party to an action where necessary for a just adjudication. See also SCRA 1986, 1-021 (parties may be added by order of the court on motion of a party at any stage of the action). The supreme court has also adopted SCRA 1986, 12-301, permitting an appellate court to add parties “on such terms as it may deem proper” at any stage of any proceeding.
Earlier decisions of the supreme court held that an omitted, indispensable party could not be joined as a party to an appeal after the time for filing the appeal had expired. See Brown v. New Mexico State Bd. of Educ., 83 N.M. 99, 488 P.2d 734 (1971) and Clark v. Rosenwald, 30 N.M. 175, 230 P. 378 (1924). The court in Ferguson-Steere Motor Co. v. State Corp. Comm’n, 59 N.M. 220, 282 P.2d 705 (1955), however, took notice that amendments to supreme court rules had been made after its decisions in Clark and Miller v. Oskins, 33 N.M. 109, 263 P. 764 (1927), and that no time limit existed “on the right to make application to add parties here, though obviously unseemly delay, or prejudice to the opposite party, would be factors * * * looking with disfavor on such an application.” Id. at 225, 282 P.2d at 708; see also Russell v. University of N.M. Hosp./Bernalillo County Medical Ctr., 106 N.M. 190, 740 P.2d 1174 (Ct.App.1987) (appeal involving the untimely service of the notice of appeal). We are persuaded that under the rationale applied by the court in C.E. Alexander & Sons, Inc. and the provisions of our current rules of civil and appellate procedure, absent a showing of prejudice, the court may add a necessary or indispensable party to an appeal after the time for filing the notice of appeal has expired. See id. (policy favoring appeals on their merits should prevail). The Village has not argued that it was prejudiced by Protestants’ delay in the instant case.
In reaching its decision in C.E. Alexander & Sons, Inc., our supreme court relied in part on 3A James W. Moore et al., Moore’s Federal Practice ¶ 19.01[5.-9] (2d ed. 1990). This treatise recognizes that, in addition to jurisdictional questions, the concept of indispensability also concerns the ability of a court to make an equitable adjudication. See 3A James W. Moore et al., Moore’s Federal Practice ¶ 19.05[2] (2d ed. 1991). In the present case, Protestants’ petition was filed on the thirtieth day following the entry of the decision of the Village Council. The Village’s objection to Protestants’ failure to name an indispensable or necessary party was made after the deadline for filing the petition. See § 3-21-9. In such a situation, where a petitioner may be precluded from pursuing review, we think the supreme court in C.E. Alexander & Sons, Inc. implicitly determined that rigid jurisdictional bars are no longer applicable where there has been a failure to join an indispensable party and, absent prejudice, permits joinder of necessary or indispensable parties to an appeal or review by certiorari.
In conclusion, we determine that where an indispensable or necessary party is subject to service of process and is otherwise capable of being joined as a party to a proceeding under Section 3-21-9, the district court has jurisdiction to add such party to the proceeding after the time to file the petition has expired.
CONCLUSION
The order of the district court dismissing the petition for review is reversed and the cause is remanded for further proceedings consistent with this opinion.
IT IS SO ORDERED.
BLACK, Judge, concurs.
HARTZ, Judge (specially concurring).
. New Mexico makes no distinction between indispensable or necessary parties. State Farm Mut. Auto. Ins. Co. v. Foundation Reserve Ins. Co., 78 N.M. 359, 431 P.2d 737 (1967). | [
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HUDSPETH, Justice.
Petitioners, one hundred and twenty-six users of electricity in the village of Belen and in the county of Valencia adjacent to Belen, filed a petition before the State Corporation Commission, alleging that the rates charged for electricity in Valencia county by the respondent, the New Mexico Power Company, were exorbitant and oppressive, and praying that such rates be reduced. After a hearing on the merits, the commission entered an order dismissing the petition for lack of evidence that the rates charged were unreasonable. Petitioners then obtained an order of removal to this court. Respondent moves to dismiss the removal proceeding on the ground that this court is without jurisdiction to review the order of the State Corporation Commission denying the relief prayed for in the petition.
The precise question presented by respondent’s motion to dismiss was passed upon by this court in Seaberg v. Raton Public Service Company, 36 N. M. 59, 8 P.(2d) 100, 101. In that case, which must be regarded as determinative of the case at .bar, we said: “As regards the reasonableness of the rates, the commission, the only tribunal to which the public can resort to obtain reasonable rates, has spoken. It has said that the public has no just cause of complaint. This court can no more review that decision than if it had been made by the Legislature.”
The motion to dismiss must be granted. The removal proceeding will therefore be dismissed and the record remanded to the Corporation Commission; and it is so orderea.
WATSON, C. J., and SADLER and BICKLEY, JJ., concur.
ZINN, J., did not participate. | [
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WATSON, Chief Justice.
Albert Hanny filed in probate court his final account as administrator of the estate of Thomas Warren Keel. The distributees objected to the claims made for administrator’s and attorneys’ fees. Over these objections the probate judge allowed an administrator’s fee of $3,500, and attorneys’ fees of $3,000.
The matter having been appealed to the district court, these fees were disallowed, and, having already been paid, the administrator was ordered to reimburse. the estate therefor, with interest. After having appealed to this court, the administrator died, and the cause has been revived in the name of Jack Hanny, his administrator.
The learned trial judge made extensive findings. His more important conclusions were that the administration was unnecessary, improper, and detrimental, and for that reason entitled the administrator and his attorneys to no fees; and, in the alternative, that no property came into Mr. Hanny’s hands as administrator except $2,948.21, cash transferred from guardianship account, and $10,005.80, the proceeds of a life insurance policy; that the administration was merely perfunctory, calling for slight skill on the part of attorneys; and that, if the administration had been necessary, $129.54 (1 per cent, of the cash and insurance) would have been adequate compensation to the administrator, and $100 adequate as attorneys’ fees.
The material facts appear as follows: J. L. Keel, father of Thomas Warren Keel, died testate in January, 1929. Aside from a few specific devises and bequests to his four children individually, and a small annuity to his mother, the estate was left in undivided-shares to the children, all of whom were minors. Albert Hanny, being the survivor of the two nominated in the will, qualified and acted throughout as sole executor. He was also appointed and served as guardian of the minors. As executor he took into his possession $200,000 of United States registered bonds, and approximately $185,000 in cash, notes, mortgages, and oil royalties. In lieu of statutory allowances, he elected to take as compensation 5 per cent, of the appraised value of personal property, as provided by the will. He paid himself as executor approximately $17,500, and paid his attorneys $10,-000. As guardian he paid himself about $3,-000 and paid his attorneys $1,500.
On August 5, 1929, but a few months following the death of the father, Thomas Warren Keel died intestate. On the petition of J. L. Keel, Jr., one of the appellees, who had in the meantime attained his majority, Mr. Hanny was appointed administrator and .proceeded to inventory the estate and have it appraised.
The inventory listed a diamond ring, a bequest from the father, and an undivided one-fourth interest in each asset of the father’s estate, already in his possession as executor. Each item was duly appraised, the ring at $1,000.
The administrator collected $10,005.80 upon a policy of insurance upon his decedent’s life and transferred $2,948.21 from his joint guardianship account. Certain amounts of cash, proceeds of liquidation, seem also to have been transferred from his account as executor to his account as administrator. At the end, he segregated one-fourth of the $200,-000 of registered bonds, transferring them from Hanny, executor, to Hanny, administrator, and thence to the three distributees..
Except for these transactions, the execution of J. U. Keel’s will does not seem to have been affected by the death and administration of Thomas Warren Keel. The administrator, of course, never had manual possession of undivided quarter interests in notes, mortgages, and other personalty, a large part of which was not liquidated, but turned over in kind to the distributees. The actual distribution under both estates was simultaneous, the same beneficiaries and practically the same assets being involved in each.
In so far as the fixing of administrator’s and attorneys’ compensation was matter of judicial discretion, these facts we think support the decision appealed from. But appellant contends that the court erred in holding this administration unnecessary and improper ; and that, the administration having been properly granted, compensation was a mere matter of mathematical calculation, it being fixed by statute, and not being within judicial discretion.
We think the first position is well taken. It is true that the two estates were largely the same in their assets and with respect to the parties interested in them. Nevertheless, they were distinct entities. It is immaterial that there was but one small debt outstanding against Thomas Warren Keel, aside from the funeral expenses. There existed the legal possibility of his share of the personal property and even his real estate being subjected to the payment of debts. To his administrator and to him only could the executor legally distribute a one-fourth interest in the estate. We think the trial court to have been in error in disallowing all fees upon the theory that the administration was unnecessary and improper.
We do not agree with the second contention. In the fii’St place, construing 1929 Comp. St. §§ 47-701 and 47-205 together, we think that commissions on cash and proceeds of policies of insurance are within judicial discretion, subject omy to the statutory maximum. We shall respect, therefore, the trial court’s holding that, if administration had been proper, and considering $2,948.21 in cash and $10,005.80 as the proceeds of insurance policy to have come into the administrator’s hands, a commission of 1 per cent. ($129.54) would be adequate compensation for the administrator and $100 a proper attorneys’ fee.
In the. second place, the statutory policy of allowing attorneys’ fees in an amount equal to the administrator’s compensation is not without exception. Such fees may “be otherwise fixed by the court upon a showing of proper cause therefor.” 1929 Comp. St. § 47-132. We cannot doubt that the peculiarities of this case, as disclosed above, constitute proper cause for “otherwise fixing” them. We feel bound by the trial court’s conclusion that $100 would be adequate.
But 1929 Comp. St. § 47-701 plainly provides for specified commissions to administrators “on all amounts * * * upon property at its appraised value which shall come into their hands as such.” Cash, proceeds of life insurance policies, and real estate ax-e excluded. As to the other property, we cannot doubt that the commission accrues as of right and cannot be disallowed by the court.
It is essential to the right, however, that the property come into the administrator’s hands. Nothing could be claimed as of right for the one-fourth interests which were never segregated and were incapable of manual possession. Whether compensation oix account of such intex'ests might have been allowed in discretion is a question not hero argued.
The bonds, as stated, were actually segregated. As executor, Mr. Hanny actually had one-fourth in number and value distributed and transferred in registry to himself as administrator. We cannot escape the conclusion that these bonds, appraised at $50,000, came into the administrator’s hands, and that it was error to deny the statutory commission on that property.
Considering that this particular one-fourth of the bonds was to be distributed exactly as the other three-fourths, the trial court was of opinion that this circuity of transfer was unnecessary and could accomplish no other substantial result than to lay the foundation for a claim for a second commission. Whether necessary or not, it was legal and proper, and brought the property within the terms of the statute. So long as the Legislature maintains an arbitrary and inelastic standard of compensation, the courts aro bound by it.
The trial court also announced the view that government bonds were to be deemed “cash” within the meaning of the statute. We think the statute incapable of such interpretation.
It can hardly be questioned that the diamond ring came into the hands of the administrator.
In view of what we have decided, other questions argued by counsel require no consideration.
For the errors in denying all compensation on the ground that the administration was unnecessary, and in disallowing commissions on the government bonds and the ring, the judgment must be reversed. Upon the record before us a judgment could have been sustained if it had included an allowance of $2,700 on the bonds and ring, in addition to the 1 per cent. ($129.54) on the cash and insurance proceeds, and the $100 of attorneys’ fees.
In the original brief appellant expresses the view that the cause should be remanded for new trial. Appellees demand an affirmance and a 10 per cent, penalty, upon the claim that the appeal was taken for purposes of delay. By the reply brief, appellant asks that the judgment of the district court be reversed and that of the probate court be reinstated. Each counsel has thus asked too much. There should either be a new trial or a modification of the judgment.
Doubtful if any good purpose would be served by awarding a new trial, we have concluded to reverse the judgment and to remand the cause, with a direction to modify the judgment so as to require appellant to refund to the estate of Thomas Warren Keel the sum of $3,670.46, instead of the sum of $6,500 as originally adjudged. It is so ordered.
SADLER, HUDSPETH, and BICKLEY, JJ., concur.
ZINN, J., did not participate. | [
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NEAR, J.
This action was filed in the office of the clerk of the district court for Chaves county, state of New Mexico, on the 15th day of October, 1929. The complaint, in substance, alleged that on June 6, 1928, the appellee purchased from the appellant a Chrysler roadster, agreeing to pay therefor the sum of $520, of which sum $200 was paid in cash, and a conditional sales contract was executed, by which it was agreed to make ten deferred payments monthly, of $32 each, -beginning July 6,1928. The contract is attached as a-n exhibit to the complaint in the cause, and the terms of the contract are thus made a part of the complaint.
It is further alleged that appellee made four payments on the said contract and defaulted in payment of the remainder. It is alleged that there is a balance due on the contract of $175.50, principal, $8.77 interest, and the complaint asked for an attorney’s fee of $26 as provided in the sales contract in the event the contract is placed in the hands of an attorney for collection, and it is alleged that the same was so placed. For this sum appellant asked judgment.
To this complaint the appellee interposed a demurrer, and for the grounds of the demurrer states:
(1) “That said complaint does not state facts sufficient to constitute a cause of action.
(2) “That said complaint on its face does not state facts sufficient to constitute a cause of action in this, that it shows that plaintiff had never parted with the title to the property described in said complaint and that at all times in said complaint mentioned was the-owner of the automobile described therein, and that by reason of said ownership being kept and retained, that defendant was never more than bailee for hire and could not be-liable to plaintiff: in any amount other than for the use of said automobile during such time as defendant might have had and used the same and that this is not any action for hire but is an action for purchase price of said car which defendant never had title to.
(3)“That said complaint on its face does not state facts sufficient to constitute a cause of action, in this, that the allegations of said complaint show that plaintiff had any one of three causes of action, that is: (1) for the purchase price of said automobile, (2) for the use and hire of said automobile, (3) for the possession of said automobile.”
The court heard argument on the sufficiency of the complaint as tested by this demurrer, sustained the demurrer, and dismissed the cause. To this action the appellant duly excepted and presents this assignment of error as the grounds for reversal here.
The first ground of demurrer, to wit,, that “the complaint does not state facts sufficient to constitute a cause of action,” is not sufficient, for the reason that it does not distinctly specify the grounds of objection, sought to be presented and is too general in its nature. Section 105-412, Compilation 1929; Williams et al. v. Kemp et al., 33 N. M. 593, 273 P. 12.
The second and third grounds for demurrer present for eonsidei*ation the question as to whether the appellant, under its contract with the appellee, by which it reserved title to itself in the property, having taken possession of the same on default in payment, could sell the property, apply the proceeds of such sale to the amount of the debt, and recover the deficiency by action?
The contract, so far as material to the1 determination of the question here presented, provides:
“1. Title to said property shall not pass to the purchaser until said amount is fully satisfied in cash.”
“3. In the event the purchaser defaults on any payment or fails to comply with any condition of this contract or a proceeding in bankruptcy, receivership or insolvency be instituted against the purchaser or his property, or the seller deems the property in danger of misuse or confiscation, the full amount shall, at the election of the seller, be immediately due and payable, and purchaser hereby authorizes any attorney-at-law to appear for said purchaser in any court of record in the United States, waive the issue and service of process, and confess judgment against said purchaser for the amount due hereunder in favor of the seller or assignee.”
”6. Time is of the essence of this contract, and if the purchaser default in complying with the terms hereof, or the seller deems the property in danger of misuse or confiscation, the seller or any sheriff or other officer of the law may take immediate possession of said property without demand (possession after default being unlawful), including any equipment or accessories thereto; and for this purpose the seller may enter upon the premises where said property may be and remove the same. The seller may resell said property, so retaken, at public or1 private sale without demand for performance, with or without notice to the purchaser, (if given, notice by mail to address below being sufficient), with or without having such property at the place of sale, and upon such terms and in such manner as the seller may determine; the seller may bid at any public sale. Erom the proceeds of any such sale, the seller shall deduct all expenses for retaking, repairing and reselling such property, including a reasonable attorney’s fee. The balance thereof shall be applied to the amount due; any surplus shall be paid over to the purchaser; in case of deficiency the purchaser shall pay the same with interest and the purchaser does hereby confess judgment in the amount of such deficiency. Seller may take possession of any other property in the above described motor vehicle at the time of repossession and hold the same temporarily for the purchaser without liability on the part of the seller.”
“7. Seller shall have the right to enforce one or more hereunder, successively or concurrently, and such action shall not operate to estop or prevent the seller from pursuing any further remedy which he may have hereunder, and any repossession or retaking or sale of the property, pursuant to the terms hereof shall not operate to release the pur chaser until full payment has been made in cash.”
The demurrer proceeds upon the theory that, since the contract of sale reserves the title to the property in the vendor, and the vendor repossesses himself of the property, the consideration for the payment of the balance of the purchase price fails, and that any further liability which might exist between the parties to the contract could only be compensation for the use of the automobile while in possession of the vendee. This might be true but for the provision of paragraph 6 of the contract above quoted. It will be seen that paragraph 6 of the contract, above quoted. specifically provides that, if the purchaser makes default in the payment, the vendor may take immediate possession of the property without demand, and resell the property so taken, at public or private sale with or without notice, and apply the proceeds arising from such sale to the expense of retaking, reselling, and repairing the property, together with a reasonable attorney’s fee, and apply the balance arising from such sale on the amount due under the contract, and, if any surplus remains, it should be paid over to the purchaser, and, if the property at such sale does not bring a sufficient sum to pay the full amount contracted to be paid, the vendor may have his right of action to recover such deficiency.
Without discussing the fairness or unfairness of this clause of the contract, it is clear as to its terms, and we know of no legal inhibition, preventing its enforcement.
The Encyclopedia of Automobile Raw, by Mr. Huddey, vol. 11-12, § 166, uses the following language: “In some jurisdictions a stipulation for repossession of the article sold and release of the seller from his agreement to convey title to the buyer is regarded as an agreement for rescission, when found in a conditional sales contract, even though the buyer has unconditionally agreed to pay, unless the contract includes a promise upon his part to pay any balance due after the proceeds of the sale of the article have been applied upon the debt.”
In Campbell Motor Co. v. Spencer, 22 Ala. App. 465, 116 So. 892, 893, the Court of Appeals of Alabama had under consideration the clause of a contract almost identical with the one under consideration here. The court in that case said:
“The serious question arising in this case is as to the rights of the seller under a contract, not only reserving title, but also authorizing a resale of the property upon reducing it to possession under the contract and the application of the proceeds of the sale to the balance due on the purchase price, together with a provision that if there is any balance remaining unpaid the buyer shall be liable for such deficiency, and if the second sale is more than the balance due, the seller shall first apply the amount received to the extinguishment of the debt and paying over to the buyer any excess of such proceeds. This clause in a conditional sale contract has been the subject of many decisions of courts of last resort, all of which, with the exception of the Supreme Courts of Minnesota and Ar kansas have held the contract to he valid and enforceable. Fulghum et al. v. General Motors, a Corporation, 30 Ga. App. 609, 118 S. E. 600; Warner v. Zuechel, 19 App. Div. 494, 46 N. Y. S. 569; Ascue v. Aultman & Co., 2 Willson, Civ. Cas. Ct. App. § 497. To the same effect are the decisions of the Canadian courts, many of which are collated in L. R. A. 1916A, page 919. As we see it, the clause hereinabove discussed is valid and binding and permits the vendor to repossess the property upon default of the purchaser, sell it, apply the proceeds to the debt, and sue for the balance due.if any part of the debt is left unpaid.”
Mr. Estrieh, in his work on Installment Sales, § 341, p. 704, gives a clear, and concise statement of the rights of the parties under a contract of this character. He says:
“The repossession of the property by the seller under a contract providing that, if the buyer made the stipulated payments and complied with certain other requirements, he should be entitled to a bill of sale of the property, but that if he made default all rights under the contract were to cease, and the seller might take possession of the property, was held to prevent a recovery of the purchase price; in such a case there is a failure of consideration for the buyer’s promise to pay the purchase price. The seller in such a ease obtains possession of his property and is entitled to the payments that have been made to him; the fact that he has indulged the buyer upon the latter’s promise to make payments in default does not entitle the seller to recover the payments in default, or damages for the breach of contract or the fair value of the use of the property.
“But there may be a recovery after taking possession under a contract expressly authorizing the seller'to take possession on certain conditions, and sell the property and apply the proceeds toward the payment of the note. And under such a contract a recovery against endorsers of the buyer’s notes for a deficiency was sustained. It has been held that the agreement that the'proceeds of any resale should be applied to payment of the purchase price carries with it, by necessary implication, the promise on the part of the buyer to pay any balance remaining unpaid after crediting the proceeds of the sale. The Supreme Court of Oregon says:
“The rule followed in this state is in effect that where one of the remedies provided in a contract for the sale of the property, containing a reservation of the title in the seller until payment of the purchase price, is the right, on the default of the buyer, to seize and sell the property at public or private sale and apply the proceeds toward the payment of the purchase price, and the seller exercises this right, he is entitled to recover from the buyer any balance remaining after ■so crediting the proceeds of the resale. The right to recover the purchase price under such a contract has been sustained, although there is no express provision that the proceeds of the sale are to be applied on the note, where there is an absolute promise to pay. If it appears from the whole contract that it was the intention of the parties that whatever remained due should be paid by the buyer, recovery may be had. [First Nat. Bank v. Yocom, 96 Or. 438, 189 P. 220.]”
We agree with the doctrine as thus announced, and therefore conclude that the complaint in this cause stated a cause of action and that the court erred in sustaining the demurrer of appellee thereto. For this reason the cause is reversed and remanded, with directions to proceed with the cause in accordance herewith.
BICKLEY, O. J., and WATSON, SADLER, and HUDSPETH, JJ., concur. | [
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BICKLEY, Justice.
This action was brought under Compiled Statutes 1929, section 36-101, by plaintiff (appellant), widow of Venceslao Lopez, who, it is claimed, was killed through the negligence of the defendants, Townsend & Scenic Stages, Inc., in operating a stage coach between the cities of Santa Fé and Roswell, by striking him with such coach as he was walking in the highway near the city of Santa Fé, driving a team of horses. A defendant, American Fidelity & Casualty Company, was surety on the bond of the other defendants as provided by article 10, chapter 11, Compiled Statutes 1929 (section 11-1001 et seq.).
To the plaintiff’s complaint, demurrers were filed by the respective defendants; such demurrers being in most particulars the same. The grounds of the demurrer, briefly, were that two causes of action had been improperly joined in the said complaint, to wit: a cause of action sounding in tort against the defendant Townsend and. the Scenic Stages, Inc., with a cause of action in contract against the defendant American Fidelity & Casualty Company; that there is a misjoinder of parties defendant in said complaint, in that the American Fidelity & Casualty Company is improperly joined as a party to a cause of action against the other defendants sounding in tort, as to the commission of which tort it is not alleged said defendant American Fidelity & Casualty Company was a party; that there is a misjoinder of parties defendant, in that the defendants Townsend and Scenic Stages, Inc., are improperly joined as parties defendant in a cause of action in contract upon an alleged policy of insurance alleged to have been executed by the American Fidelity & Casualty Company, and which the complaint affirmatively shows was not executed by either of the defendants Townsend or Scenic Stages, Inc.; “That said complaint fails .to state sufficient facts to constitute a cause of action against this defendant for each of the following reasons: [Here follow seven reasons assigned.]” (
The trial court on the 12th day of January, 1932, ordered that the demurrers of each of the said defendants be sustained, and further ordered: “That the plaintiff herein shall further plead in this cause if she so desires, within 20 days from and after this date.”
On the 30th day of January, 1932, the plaintiff filed a written request for specific rulings on the demurrers, and that said cause be not dismissed under any conditions as to the defendants Townsend and Scenic ¡Stages, Inc., the said request being as follows:
“Comes now the plaintiff in the above entitled and numbered cause, and prays the Court to state specifically his ruling on each ground of demurrer set up by each of the defendants in their respective demurrers, which the Court sustains, and each ground of demurrer, if any which the Court overruled.
“The plaintiff further requests the Court that in case, for any reason, he holds that the defendant, American Fidelity & Casualty Company, is not a proper party defendant, or that no action could be maintained against it in this suit, then that ho do not dismiss this action against the other defendants, but only as to the defendant, American Fidelity & Casualty Company.”
On the 19th day of February, 1932, the court considered said request, and announced:
“Being of the opinion that the ruling heretofore entered herein on said demurrer is sufficiently explicit;
“It is therefore ordered by the court that the request for specific rulings on demurrer, and the said cause be not dismissed under any conditions as to the defendants Charles T. Townsend and -Scenic Stages, Inc., be and the same is hereby in -all things denie.d, to which- rulings and each of them the plaintiff excepts.”
On the 30 th day of January, 1932, there was filed by the plaintiff a notice that plaintiff will not further plead, the said notice being as follows: “Comes now the plaintiff in the above entitled and numbered cause. and states to the court that upon the Court’s (refusal to announce specific decision on the several grounds of demurrer set out in the several demurrers of the defendants and upon the Court’s statement that he will dismiss this cause of action as to all parties, the plaintiff announces that she will not further plead herein, but will stand upon her present pleadings.”
On the same day there were filed exceptions to the order of the court sustaining demurrer of the defendants. Among the other exceptions were to the court’s failure and refusal to state the ground upon which it decided the demurrer. On the 19th of February there was filed a paper entitled “Amended Exceptions to Order of Court Sustaining Demurrer,” which again excepted to the court’s failure and refusal to state the ground upon which the court decided the demurrer.
On the 19th day of February, 1932, the plaintiff filed objections and exceptions to the proposed judgment to be entered in this cause, among which objections was:
“That, assuming that there was a misjoinder of causes of action, authorizing the dismissal of said cause as to the defendant, American Fidelity and Casualty Co., the only order that can be entered is a dismissal as to it, and not a judgment on the facts that have never been tried.
“That, assuming that there was a misjoinder of causes of action, judgment against the plaintiff in favor of the defendants, Townsend and Scenic Stages, Inc., should not be entered as though said cause had been tried upon the facts; nor should it be dismissed as to said defendants, because a full and complete cause of action has been set out against them and the court was not authorized to dismiss such cause as to them.”
On the said 19th day of February, the court entered judgment: “Now, therefore, on motion of the defendants, it is considered, ordered, and adjudged that the .plaintiff, Andrellita Sandoval de Lopez, do have and recover nothing from the defendants, or either of them in this cause, and that said defendants do have and recover of and from the plaintiff, their costs of suit .herein, to which the plaintiff in open court objects and excepts upon all of the grounds set out in plaintiff’s objections and exceptions to the entry of this judgment herein, and upon all of the grounds upon which her exceptions to the overruling of the two demurrers to plaintiff’s amended complaint herein, as set out in written exceptions filed in this cause.”
The plaintiff appealed from the judgment, and relies for reversal upon 17 points stated in her brief. Many of these points go to the merits of the various grounds of the demurrers which were sustained by the trial court. Points 7 and 8 present a procedural question which, in our opinion, is of sufficient importance to require a decision. They are thus stated:
Point 7. The plaintiff on request was en-( titled to specific rulings on the demurrer so that in case it was sustained on the ground of misjoinder of causes of action she could make application for a division of the'ac-. tions.
/ Point 8. Where there is a general demurrer on the ground that a complaint does not state facts to constitute a cause of action, and also a special demurrer on the ground of misjoinder of causes of action, and the court sustains the demurrer generally and refuses to state whether or not it was sustained because of misjoinder of causes of action, it will be presumed that the demurrer was sustained because of the insufficiency of complaint.
Point 7 presents the proposition that the plaintiff was at least entitled to be advised as to whether or not the demurrer had been sustained upon the ground of misjoinder of causes of action, in order that, if she were so advised, she could make a motion to divide the actions as provided by section 105-604, Comp. St. 1929. The material portion of said statute is as follows: “If the demurrer be allowed for the reason that causes of action have been improperly united, the court may in its discretion, and upon such terms as may be just, order the action to be divided into as many actions as may be necessary to the proper determination of the causes of action therein mentioned.”
Statutes similar to ours exist in a number of jurisdictions, and have been construed in several. In section 223 of Bancroft’s Code of Pleading it is stated: “Where a complaint is demurred to generally and also upon the ground of misjoinder of causes of action, it is the duty of the court, it has been held, to pass upon the latter ground of demurrer even though it holds that one of the causes of action is insufficient; if the court sustains the demurrer upon such ground, it should so state, so as to enable the plaintiff to file several actions, and if it fails to do so, it will' be presumed on appeal that the demurrer was sustained because of the insufficiency of the petition.”
In Bennett v. Preston, 17 Ind. 291, three causes of demurrer were assigned: (1) Want of sufficient facts to constitute a cause of action ; (2) misjoinder of causes of action; (3) misjoinder of defendants, in this, that there were too many defendants. The trial court sustained the demurrer generally and dismissed the suit. On appeal the Supreme Court said: “As to the second ground of demurrer, if valid, it was not cause for dismissal of the suit, but only for the docketing &f the causes as separate actions.”
In Nebraska, the statute being similar to ours, the court in Alexander v. Thacker, 30 Neb. 614, 46 N. W. 825, decided: “Where a demurrer is sustained on the ground of nonjoinder of parties defendant, the court should not dismiss the action without giving the plaintiff an opportunity to bring in the absent party.”
The Supreme Court said that there was a nonjoinder of parties defendant, but added: “Such defect, however, was not sufficient grounds for dismissing the suit without giving an opportunity to bring in the holder of the legal title. The plaintiff should have been ordered to bring in the absent party, within a time to he named by the court; and, in default thereof, the suit be ordered dismissed.”
. In Neun v. B. H. Bacon Co., 137 App. Div. 397, 121 N. Y. S. 718, 720, the court, considering demurrers which had been interposed by each defendant on the ground that several causes of action were improperly united, said:
“Section 497 of the Code of Civil Procedure provides:
!'Tf a demurrer to a complaint is allowed, because two or more causes of action have been improperly united, the court may, in its discretion, and upon such terms as are just, direct that the action be divided into as many actions as are necessary for the proper determination of the causes of action therein stated.’
“The authority in pursuance of this section has been several times exercised. Roehr v. Liebmann, 9 App. Div. 247, 249, 41 N. Y. S. 489; Myers v. Lederer, 117 App. Div. 27, 30, 101 N. Y. S. 1088.
“The Code of Civil Procedure, therefore, preserves to a plaintiff his causes of action where it is held on demurrer that they are improperly united, so that he is not obliged to commence anew. If important, he is in the same condition as if the demurrer had been overruled so far as the defense of the statute of limitations is concerned.”
The Supreme Court of Oklahoma in Goldsborough v. Hewitt, 23 Okl. 66, 99 P. 907, 138 Am. St. Rep. 795, construing a statute similar to our section 105-604, decided that the court has no right to summarily dismiss the action without giving the plaintiff an opportunity to proceed under this section.
In Whitely v. St. Louis, E. R. & W. R. Co., 29 Okl. 63, 116 P. 165, 167, the court said: “We are therefore of opinion that the petition states facts sufficient to entitle plaintiffs 'to a new trial, and that the demurrer should have been overruled; that is, unless, as is contended, the court was right in sustaining the demurrer to the petition on the ground of misjoinder of causes of action. But we cannot infer that the court so held for the reason that we have several times declared it to be the duty of the court, where a demurrer is sustained on that ground, to so state in order to afford plaintiffs an opportunity to file several petitions, as provided by Wilson’s Dig. Okl. § 4296. Failing so to do, as we cannot presume error on the part of the trial court, we cannot presume his ruling was upon that ground. In Chauncey A. Owen et al. v. City of Tulsa et al. [27 Okl. 264], 111 P. 320, speaking to a demurrer there, as here, interposed to a petition on the ground of misjoinder of causes of action, we said: ‘Had the court sustained it upon the ground of misjoinder of causes of action, it would have been' the duty of. the court to so state at the time in order to afford plaintiff’s counsel an opportunity to move to be allowed to file separate petitions each to include such of said causes of action as might have been joined, and had them each,docketed, pursuant to section 92 of chapter 66 of the Code of Civil Procedure, Statutes of Oklahoma 1893. Goldsborough v. Hewitt, 23 Okl. 66 (99 P. 907 [138 Am. St. Rep. 795]); Weber et al. v. Dillon, County Treas., 7 Okl. 568 (54 P. 894). As the court made no such indication and counsel were therefore afforded no such opportunity, it is but fair to presume that the court sustained the demurrer upon the third ground, which is that the petition fails to state facts sufficient to constitute a cause of action.’ ”
In 49 C. J. Pleading, § 556, discussing decisions on demurrer in general, it is said that it is not necessary that the ground on which the ruling is made be specified. Two Florida cases were decided at the 1908 term, Hoopes v. Crane, 56 Fla. 395, 47 So. 992; Gainesville, etc., R. Co. v. Peck, 55 Fla. 402, 46 So. 1019. The 1909 Florida Legislature enacted the following statute: “That the judges of the several courts of the state of Florida, before whom are argued demurrers and motions on any pleading in their several courts, shall briefly state in writing which grounds of the demurrer or motion are sustained, and which grounds are overruled.” See Florida Acts 1909, c. 5912.
■ A similar statute exists in Connecticut. See Conn. Gen. Stats. 1930, § 5666.
In Johnston v. Smith, 86 N. C. page 500, a case cited to the C. J. text, the court said: “The exception taken by the defendant to the refusal of His Honor to specify in his judgment which of the causes of demurrer were sustained, is not tenable. We know of no law or rule of practice which required the court to do so, while we admit such a practice would be convenient to the party demurring and the saving of labor to the appellate court.”
The C. J. text continues: “Although it has been held otherwise when the demurrer is sustained for misjoinder of actions” — citing Whitely v. St. Louis, etc., R. Co., supra.
We are in sympathy with the ideas of convenience expressed by the North Carolina Supreme Court, supra. Comp. St. 1929, § 105-412, declares: “The demurrer shall distinctly specify the grounds of objection to the pleadings; unless it does so, it may be disregarded.”
This is designed for tlfe convenience of the party whose pleading is assailed and of the court deciding upon the sufficiency of the pleading. The rationale of the statute suggests the benefits of an indication by the court as to which of the grounds of the demurrer are sustained and which grounds are overruled. However, we do not now deem it proper to go any further in this direction than the Legislature has gone.
Our statute is a plain mandate to the court to state whether he sustains or overrules a demurrer made upon the ground that “Causes of action have been improperly united.” Where a duty is imposed upon the court, which affects a right of a litigant, it is error to refuse to perform such duty.
It is suggested by appellee that appellant has waived the error by laches, in that she elected to stand on her complaint prior to asking for the specific rulings. We do not so understand. While the formal order overruling the request for specific rulings on the demurrer was entered February 19, 1932, it appears that some indication of the position of the court was made prior to the entry of said order, because in the notice by plaintiff of her intention to stand upon her complaint she stated that she was doing so “upon the Court’s refusal to announce specific decision on the several grounds of demurrer set out.” And, in her exceptions to the action of the court filed on the same day of her election to stand, she excepted to the refusal of the court to state the ground upon which he decided .the demurrer.
We do not regard the statement of the court that he was of the opinion that the ruling theretofore entered on the demurrer was sufficiently explicit as in any way tending to cure the error. Such ruling was not as explicit as the statute demands.
True it is that, if the court sustains the demurrer upon the ground “that causes of action have been improperly united,” the court is vested with a discretion as to the course of proceedings thereafter to be taken. But the plaintiff was not given the opportunity the statute affords to invoke this discretion. It is no answer to say that plaintiff had an opportunity to amend after the demurrer was sustained by dividing her causes of action if more than one were pleaded. She was entitled under the statute to be informed by the court as to whether she had improperly united more than one cause of action. By her point 7 appellant urges a reversal. By point 8 she seeks the benefit of a presumption that the court did not sustain the ground of the demurrer challenging the complaint for misjoinder of causes as suggested by the decision in Whitely v. St. Louis, etc., R. Co., supra. The question of whether one cause of action is presented by the complaint or if there are two causes of action pleaded therein improperly seems from an examination of the briefs and from the oral argument to be the central question in the case, and we do not think it would be appropriate to presume that the court overruled this ground of the demurrer, and thus avoid deciding this important question.
Orderly procedure dictates that the judgment be reversed and the cause remanded, with direction to comply with the statute as herein construed, and it is so ordered.
This disposition is somewhat similar to that taken in Morrow v. Martinez, 27 N. M. 354, 200 P. 1071. We call the attention of the parties to section 2 of rule X of rules of appellate procedure.
WATSON, C. J., and SADLER, HUDS-PETH, and ZINN, JJ., concur. | [
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ZINN, Justicei
The appellant instituted an action to recover on two negotiable promissory notes, against the appellee. The appellant was the payee and the appellee was the maker of said notes, and were in the possession of the appellant. Tlie appellee in his answer admitted the execution and delivery to the appellant of the notes in question. The ease was tried before the court without jury, and, after the notes were introduced in evidence, on cross-examination of the appellant he stated that the notes probably belonged to Spears & Co., which was a $1,000,000 company of which the appellant owned $950,000. Thereupon the appellee moved the court to dismiss the case and for judgment on the ground that the appellant was not the owner of the notes, which motion was sustained and judgment entered dismissing the case on the theory that the appellant- was not the real party in interest, from which judgment of dismissal the appellant perfected an appeal to this court
The appellant was the payee and in possession of the notes, and could and did sue in his own name as the real party in interest within the meaning of the Code (Oomp. St. 1929, § 105-103). The appellee was completely protected if judgment has been entered against him and could not again be exposed to a second action. Eagle Mining & Improvement Co. v. Lund, 14 N. M. 417, 94 P. 949.
The complaint and answer having determined the matter of ownership, that question was not in issue. Waldock v. Winkler, 51 Okl. 485, 152 P. 99. The case is therefore reversed and remanded for further proceedings., It is so ordered.
WATSON, C. X, and SADLER, HUDSPETH, and BICK'LEY, JX, concur. | [
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SADLER, Justice.
Defendant prosecutes this appeal from a conviction of murder in the first degree.
About the hour of midnight on November 15, 1931, the victim of this tragedy, a young lady eighteen years of age, was criminally assaulted and murdered in her bedroom at the home of her mother on Griffin street in the city of Santa Fé. Near the same hour a brutal assault with a hammer was made up.on the person of Oscar Churchill, night man at Andrews Garage on Water street in said city, the cash register of the garage looted, and a car belonging to the garage stolen.
A few hours thereafter, Thomas C. Johnson, a negro attendant at the garage in question, was arrested in Albuquerque in the stolen car. He readily admitted the assault upon Churchill, looting of the cash register, and theft of the automobile, but expressly denied all knowledge of the above-mentioned criminal assault and slaying. He was returned to Santa Fé and lodged in the penitentiary for safe-keeping.
The incriminatory facts developed against the defendant at the trial, and which the jury would have been warranted in accepting, are as follows: The mother of deceased was aroused by a bright light shining on her face about the time of the crime against her daughter. She proceeded from her bedroom through the living room to the door of the daughter’s room. She found the room brightly lighted, and observed a stout, stoekily built man, garbed in what she described as a “white and black striped” suit, standing beside her daughter’s bed, with his back toward the mother. The mother screamed and apparently fainted, as she was able to recall nothing of what transpired thereafter. It was the theory of the state that she was struck with a green vase in the hands of defendant, broken fragments of which were found scattered over the living room and the daughter’s bedroom. The mother bore evidences of having been struck with something. Fingerprints of defendant’s left middle finger and right thumb were found at the scene of the crime, each on a separate and distinct fragment of this broken vase. The fragments were identified as parts of a glass vase belonging in the household.
Although not residing in the vicinity, defendant was found loitering in proximity to deceased’s home one morning about 1:30 o’clock in early September preceding the tragedy, and was unable to give to the officers accosting him a satisfactory explanation of his presence in the neighborhood. Again, he was seen late on the very night of the tragedy, proceeding down Johnson street just west of its intersection with Grant avenue, not far removed from deceased’s home, and, when asked by the witness, who knew and recognized him, what he was doing over there “this time of night,” he replied: “I got a job over here.”
When arrested, defendant’s outer garment was a suit of white and blue striped coveralls which the mother said resembled the suit worn by the man discovered by her in her daughter’s bedroom. He wore underneath the coveralls two top shirts, a pair of corduroy pants, shorts, and undershirt. He also had on his person a poeketknife such as could have been used to inflict the fatal wound — ■ a stab through the left temple which fractured the skull and penetrated the brain. According to testimony in the case, defendant claimed it was a knife he used to repair tires, and stated that he had washed or cleaned it in his room. He admitted visiting his room just before fleeing Santa F\5 in the stolen car. The deceased was shown to have bled freely as a result of the fatal wound and criminal assault. Different garments worn by defendant at the time of his arrest contained blood splotches, and his hands were •bloody. These blood splotches were explained by him as having been received in dragging the body of Churchill from the scene of the assault in the garage to the place in the garage where his unconscious form was later discovered. It was a.fact that Churchill had also bled freely from head injuries inflicted upon him by the hammer in defendant’s hands.
The 'body of deceased when discovered disclosed that a strip of cloth had been forced into her mouth as a gag and tied behind her head, rendering it likely that the hands and nails of her assailant contacted the lips of the deceased. Saturday, the day before the homicide, deceased had purchased a tube of lipstick known as “Kiss-Proof.” Upon the afternoon of November 15th, the date of the homicide, deceased was shown to have lipstick on her lips. A lipstick of the “Kiss-Proof” brand was taken from the drawer of the dresser in the mother’s room on November 17th by one of the officers working on the case.
Solubility tests by an expert on slides used in connection with microscopic examinations disclosed that débris taken from underneath the finger nails of deceased and defendant each contained, in the clumps of skin particles found in said débris, a number of small bright carmine red particles, highly transparent, which did not dissolve in either the salt solution or water, and which were identical in color, appearance, and refraction. A like test of débris taken from underneath the expert’s finger nails failed to disclose these bright carmine red particles. Continuing his test with the lipstick as a control, the expert made a light smear from same across his left hand, and rubbed the fingers of his right hand across the smear. Some eight hours later, after having washed his hands and had them in soapy water more than the ordinary number of times, and after having used his hands in rubbing hair tonic into his hair, he gave débris taken from underneath the nails of his fingers on the right' hand the same test, and found imbedded in the particles of skin a number of bright carmine red colored highly refractile particles which he described as identical in “color, shape, refraction and appearance” with those found in the débris taken from the nails of deceased and defendant.
In addition, this expert found in the débris from underneath deceased’s nails several plant fibers colored blue, which he described as identical in appearance with blue cotton fibers scraped by him from the blue and white coveralls worn by defendant on the night in question.
At the time of his arrest in Albuquerque, and while defendant was being questioned by one of the officers, and before the name of the party hereinafter referred to had been mentioned, defendant, referring to the person, who, as a witness, as it subsequently developed, was to identify him as the person he saw near the scene of the homicide late on the night thereof, compared the officer to such person, and stated this person, the subsequent witness, “would say anything to hang a man.” So far as the record discloses, the officers did not at that time know defendant had been seen in the vicinity of deceased’s home a short time prior to the homicide.
A car washer, an article in common use around garages, was found underneath the bed of deceased.
As against this damaging and highly incriminatory evidence, the defendant denied all knowledge of the crime committed at the home of deceased and the concomitant parts thereof. As above noted, he sought to account for the blood on his clothes and hands as resulting from the assault on Churchill; averred that he had left Santa Eé early on the morning of November 15th to visit a sick acquaintance in Albuquerque; that the friend whom he had gone to visit was not at home; that he had immediately started on his return trip to Santa Fé; that he had “hitchhiked” rides with strangers unknown to him on the trip to and from Albuquerque, arriving back in 'Santa Fé about 9 p. m.; that shortly after' his return to Santa Fé he had gone to the home of a friend from whom he had borrowed some money to make reimbursement of money taken by him from the cash register of the garage where he was employed ; that he had then visited a local pool room, and had there spent some two or two and a half hours in gambling, losing the borrowed money; that shortly after leaving the pool room he had again visited his place of employment at the garage, where he became involved in a quarrel with Churchill, the night man, over the $2 taken from the cash register ; that this quarrel resulted in the assault upon Churchill; that, realizing his predicament, and fearing Churchill might not survive, he appropriated the automobile in question and fled the city.
Aside from apparent improbabilities embraced in the story as related by him, defendant was unable to corroborate it in any material particular. The state impeached it in many respects. It was shown by more than one witness, including the person from whom he borrowed money as related by him, that defendant was seen on the streets of Santa Fé as early as 7:30 p. m. of the date involved. At a time when according to his story he was engaged in gambling at a local pool room, he was seen, spoken to, and recognized in the vicinity of deceased’s home. The proprietor of the pool ■ hall in question testified that he came to his pool hall about 8:30 p. m. and left about 9 o’clock. Churchill, the victim of defendant’s assault at the garage, while admitting defendant had inquired what the proprietor had said about the $2 taken by defendant from the cash register, denied there was any semblance of a quarrel, and described the assault as wholly unprovoked and unexpected.
The jury returned its verdict of murder in the first degree, and from a sentence pursuant thereto this appeal followed. That the evidence upon which the jury based its verdict is substantial none can doubt.
Five claims of error are relied upon by appellant in support of his demand for a new trial. The first is predicated upon the action of the trial court in permitting the physician who first examined the body of deceased to testify that she had been criminally assaulted over an objection that his answer would tend to show the commission of another crime. The objection is clearly untenable. The criminal assault was a concomitant part of the transaction which resulted in the slaying of deceased, and was admissible under one of the well-recognized exceptions to the general rule excluding proof of other independent crimes, both as tending to show motive for the homicide, and also as a part of the res gestse of the crime charged; or, as Mr. Wig-more prefers to denominate it, as “concomitant parts of the criminal act.” 1 Wigmore on Evidence (2d Ed.) §§ 215-218; 4 Chamberlayne’s Modern Law of Evidence, § 2588; Underhill’s Criminal Evidence (3d Ed.) § 160; Territory v. Livingston, 13 N. M. 318, 84 P. 1021; State v. Graves, 21 N. M. 556, 157 P. 160; State v. Pino, 21 N. M. 660, 158 P. 131; State v. Riddle, 23 N. M. 600, 170 P. 62; State v. Starr, 24 N. M. 180, 173 P. 674; State v. Lazarovich, 27 N. M. 282, 200 P. 422; State v. Craemer, 12 Wash. 217, 40 P. 944; State v. Dooley, 89 Iowa, 584, 57 N. W. 414; People v. Wolter, 203 N. Y. 484, 97 N. E. 30; State v. McGowan, 66 Utah, 223, 241 P. 314.
The last three cases cited are instances where, in a prosecution for homicide, proof of criminal assault either upon the deceased or another was shown incident to proof of the res gestse, or as relevant upon the question of motive.
Error is predicated upon the court’s admission over objection of testimony of a state’s witness that a car washer had been found under the bed of deceased. Defense counsel concedes that this evidence affords a suspicious circumstance in view of the fact that defendant was a garage employee. The particular objection here urged is that it was improper redirect examination. On cross-examination by defense counsel this witness was interrogated and made answers, as follows:
“Q. Did you present to the defendant at Albuquerque, present or show to him at Albuquerque a car washer? A. Yes, sir; I did.
“Q. Did you tell the defendant at Albuquerque that you found that car washer in Angelina’s house? A. No, sir.”
On redirect examination the following took place touching this incident, to wit:
“Q. There was some mention here of a car washer? A. Yes, sir.
“Q. It was suggested you may have shown it to Johnson at Albuquerque? A. Yes, sir.
“Q. Was there such a car washer?
“Mr. Crist: He denied it, if the court please.
“Mr. Kenney: No, he didn’t deny the exist-, enee of the washer, he denied showing it to him in the manner which you had suggested.
“Mr. Orist: I object to the testimony, the witness denied showing it.
“The Court: Read the question. (Question read.)
“The Court: Overruled.
“Mr. Crist: Exception.”
Thereupon the witness answered that there was such a car washer and that he found it under the bed of deceased. Defense counsel after such answer interpolated the following, to wit:
“Mr. Crist: I want my objection to go to all this testimony along that line, let the record show I object to any such testimony.
“The Court: The reeord will so show and the ruling is the same.
“Mr. Crist: Exception.
“Q. Who was with you when you found it? A. District Attorney J. J. Kenney.”
It will be observed that the sole objection urged below was that the witness had denied showing the car washer to defendant — not that the interrogation concerning it was improper redirect examination. Thus the objection here urged was not called to the attention of the trial court. But, if the objection now presented be considered as having been made below, we are unable to see wherein its disallowance would disclose an abuse of that discretion with which a trial court is) vested in controlling the course and extent of redirect examination. 40 Cyc. 2530. See, also, State v. Stewart, 34 N. M. 65, 70, 277 P. 22, and State v. McKnight, 21 N. M. 14, 37, 38, 153 P. 76.
Nor do we see error in the court’s action in admitting in evidence the tube of lipstick. A lipstick and one other article of cosmetics of the kind shown to have been purchased by deceased on the day -before the homicide were found in a dresser drawer in the bedroom of deceased’s mother. It was “Kiss-Proof” lipstick, the kind deceased had purchased. When the tube of lipstick and a package of Peter Pan powder were exhibited to a witness on the stand, she identified, them as two of the articles purchased by deceased in the witness’ presence on the day before the homicide. We attach no particular weight to this identification in aid of admissibility, since no distinguishing marks were pointed out and any other purchases of the same articles bearing the identical trade-marks in packages of the same size would appear the same.
When asked what deceased did with these purchases, the witness answered that she placed them in the dresser drawer where found. She also stated that she directed the officers toi the place from which the articles were removed. Interrogated by defense counsel, she admitted she did not actually see deceased place,them in the drawer. The deceased, her mother, and a female cousin of deceased eleven years of age, who had seen deceased make the purchase, and is the witness just referred to, were the only female occupants of the household. Only deceased, of the three occupants, used lipstick.
The point to the objection is, of course, that, since deceased’s cousin admitted not having seen deceased place the lipstick in the dresser drawer, there was a missing link in its identification. We are satisfied it was sufficiently identified to entitle it to admission. The possibility that it was not the same lipstick purchased and used by deceased on the afternoon preceding the homicide was remote to say the least. Certainly the jury was entitled to say whether it was the same.
The next claimed error was in the trial court’s refusal to strike certain answers of the fingerprint expert, Powers. Por a correct understanding of this ruling it is desirable to identify some of the exhibits employed in developing the fingerprint testimony. But, first, a word regarding the principal witnesses on this subject. They were Detective H. C. Martin of Santa Pé; J. H. McSparen, who-took the photographs of the fingerprints from the fragments of a broken vase; R. E. Brunk, a convict from the State Penitentiary in charge of fingerprint work therein; and E. J. Powers, superintendent of the bureau of criminal identification of the police department of El Paso, Tex. The exhibits hereinafter referred to are all state’s exhibits.
Exhibit 1 was a fragment of the broken vase upon which as a result of the application by Detective Martin of fingerprint powder a questioned fingerprint of the right thumb was developed. Exhibit 20 was a photographer’s negative of Exhibit 1; Exhibit 25, a contact'print of the negative, Exhibit 20; and Exhibit 29, a photographic enlargement of Exhibit 20, changed by a photographic process from a negative into a positive for purposes of comparison.
Exhibit 2 was another fragment of the broken vase upon which by a like application of fingerprint powder a questioned fingerprint of the left middle finger was developed. Exhibit 21 was a photographer’s negative of Exhibit 2;' Exhibit 24, a contact print of the negative, Exhibit 21; and Exhibit 26, a photographic enlargement of a print appearing on one portion of the Exhibit 21, likewise changed by a photographic process from a negative into a positive for purposes of comparison.
Exhibit 23 was an original set of defendant’s fingerprint impressions taken by. the man in charge of fingerprint work at the State Penitentiary, the witness R. E. Brunk, on November 20, 1931, a few days following the homicide. Exhibit 27 was a photographic enlargement of the print of the left middle finger taken from Exhibit 23; and Exhibit 28, a photographic enlargement of the print of the right thumb taken from said Exhibit 23.
The expert, Powers, compared the questioned fingerprint of the left middle finger, Exhibit 26, found on a piece of the vase, Exhibit 2, with the photographic enlargement of defendant’s left middle finger, Exhibit 27, directed attention to many points of comparison, and declared the two fingerprints to be identical. A like result followed his comparison of the questioned fingerprint of the right thumb, Exhibit 29, found on a fragment of the broken vase, Exhibit 1, with the photographic enlargement of the print of defendant’s right thumb, Exhibit 28, photographed from Exhibit 23.
While the expert Powers was being questioned for purpose of identifying Exhibit 27, the photographic enlargement of defendant’s left middle finger taken from Exhibit 23, in an answer he referred to this photographic enlargement, Exhibit 27, as “a photographic enlargement of left middle finger of the accused.” And again, in referring to Exhibit 23, the witness designated it’ as “the set of finger print impressions of the accused.” Defense counsel objected to these answers, and asked to have them withdrawn upon "the ground that they involved an assumption by the witness that the original impressions from which the enlargements were made were fingerprints of the accused; that the assumption was hearsay testimony so far as this witness was concerned. A like objection was urged to the witness’ designation of Exhibit 23 as a set of finger impressions “properly identified for comparison with the subject’s finger prints.”
If there had been any dispute about the genuineness of Exhibit 23 as furnishing a set of original fingerprints of the.accused (the defendant), of course, it would have been improper for the witness to assume this fact in issue. But there was no issue upon this point. Exhibit 23 was identified by witness Brunt as containing original impressions of defendant’s fingerprints taken by him at the penitentiary on November 20th. When offered in evidence, defense counsel first objected upon the ground that no proper foundation had been laid, and that the person who took the fingerprints had not properly connected the exhibit with the taking of defendant’s fingerprints. After some argument, not appearing in the record, all protest, against the introduction of the Exhibit was withdrawn, and it went into the record without objection.
The controversy raged, not over any question whether the fingerprints on Exhibit 23 were those of defendant, but over the identity of the person who made the fingerprints on Exhibits 1 and 2, the broken bits of a glass vase, found at the scene of the crime. Absent controversy over the genuineness of Exhibit 23, as defendant’s original fingerprints, we see no error in having permitted the witness to assume in his answer, for the purpose of greater clarity before the jury, what was an undisputed and unopposed fact in the case.
The next and final claim of error is based upon the trial court’s refusal of defendant’s specially requested instruction on circumstantial evidence. The court in its general charge instructed upon this subject as follows: “10. By circumstantial evidence is meant the proof of such facts and circumstances connected with or surrounding the commission of the crime charged as tend to show the guilt or innocence of the party charged, and if these facts and circumstances are sufficient to satisfy the jury of the guilt of the defendant beyond a reasonable doubt, then such evidence is sufficient to authorize the jury in finding a verdict of guilty against him. But you are instructed that before you will be authorized to find a verdict of guilty against the defendant in this case, the facts and circumstances shown in evidence must be incompatible upon any reasonable hypothesis other than that of the guilt of the defendant.”
The first sentence of the requested instruction is in the exact language of the first sentence of the given instruction. The given and the requested instruction differ only in the language in which the final sentence is couched; the concluding sentence of the requested instruction being as follows: “But the jury is further • instructed that where circumstances alone are relied on by the prosecution for a conviction, they must be such as to exclude, beyond a reasonable doubt, every hypothesis or theory other than that defendant is guilty as charged, must be such as to apply exclusively to the defendant and be irreconcilible with any other theory than his guilt, and they must satisfy the minds of the jury beyond a reasonable doubt.”
The principal objection of defense counsel to the given instruction as compared with the one requested is that the former fails 'sufficiently to impress upon the jury’s mind that the circumstances relied upon for conviction must exclude every hypothesis or theory other than that of the defendant’s guilt. While counsel does not go so far as to assert that the word “exclude” must be employed in stating the rule, his argument clearly indicates his belief that it is dangerous to omit it. So, after all, our concern is to ascertain whether under the instruction as given, even though it may not represent the desired discrimination in the choice 'of words or the best grammatical construction, the jury received the substance and effect of the rule for testing the weight to be given facts and circumstances relied upon for conviction.
It is not necessary in charging the jury upon circumstantial evidence that the court employ any particular words or phrases. There is no prescribed formula for stating the rule. State v. Farris, 48 Idaho, 439, 282 P. 489, 491; State v. Blaine, 45 Mont. 482, 124 P. 516; Bosley v. State, 69 Tex. Cr. R. 100, 153 S. W. 878; Coffman v. State, 73 Tex. Cr. R. 295, 165 S. W. 939, 941.
“The rule is well established that in charging the jury upon circumstantial evidence the charge need not be couched in any particular set of words or phrases, and is sufficient provided it is correct in substance and is so expressed that from the entire charge the jury can readily comprehend the language employed. In other words, it is essential only that the language employed defines or explains circumstantial evidence and intelligently states the rule governing its effect.” State v. Farris, supra.
“Judge White, in his Annotated Procedure, § 813, subd. 5, p. 532, correctly states: ‘There is no prescribed formula for a charge on circumstantial evidence. Loggins v. State, 8 Tex. App. 434; Hubby v. State, 8 Tex. App. 597. If the ideas conveyed are correct, and so expressed aS to be understood by the jury, the charge is sufficient. Chitister v. State, 33 Tex. Cr. R. 635 (28 S. W. 683); Ray v. State, 13 Tex. App. 51; Taylor v. State, 9 Tex. App. 100; Rye v. State, 8 Tex. App. 153; Simms v. State, 8 Tex. App. 230.’ ” Coffman v. State, supra.
In paragraph 12 of syllabus prepared by the court to the opinion written by the late Mr. Justice Parker in State v. Carabajal, 26 N. M. 384, 193 P. 406, 17 A. L. R. 1098, we said: “An instruction which merely lacks scientific form, while in substance it covers the matter fully, is not objectionable.”
Guided by this rule for testing the sufficiency of a general charge upon circumstantial evidence and the strength _ of the conclusion to be entertained before basing a conviction thereon, we think the instruction given was not misleading, and in substance conveyed to the jury the correct idea for applying' circumstantial evidence. In other words, in substance as said in State v. Smith, 32 N. M. 191, 252 P. 1003, 1007: “The jury was correctly instructed that, to warrant conviction, the circumstances must be such as to be incompatible upon any reasonable hypothesis with innocence of the defendant.”
However, in the Smith Case, this abstract statement of the law was not deemed sufficient, since defendant had hypothesized in the evidence a theory of the commission of the offense charged by some one other than himself. We held this circumstance entitled defendant to a requested instruction applying the law to his theory of the ease which there was evidence to support.
A very brief and concise instruction upon the probative value of circumstantial evidence and one which we believe fairly states the law, where an abstract statement of it is all that is required under the evidence, is to be found in Commonwealth v. Coontz, 288 Pa. 74, 135 A. 538, 540. The jury were instructed that, where defendant’s conviction of an offense is dependent upon circumstantial evidence, “such evidence must be incompatible with his innocence of such charge upon any rational theory, and incapable of explanation upon any other reasonable hypothesis than that of guilt; otherwise the' defendant should be acquitted of such charge.”
A person who is discriminating in his choice of words might prefer to say that “such evidence must exclude every other reasonable hypothesis than that of guilt.” We cannot doubt that both convey the same idea. In the case at bar the court told the jury that, before they were authorized to convict, “the facts and circumstances shown in evidence must be incompatible upon any reasonable hypothesis other than that of the guilt of the defendant.”
“Incompatible” is defined in Century Dictionary as “not compatible; incapable of harmonizing or agreeing; mutually repelling ; incongruous.”
“Things are incompatible when they cannot coexist, and * ,* * inconsistent when they are opposed to each other.” Commonwealth v. Staunton Mut. Telephone Co., 134 Va. 291, 114 S. E. 600, 603.
Territory v. Padilla, 8 N. M. 510, 46 P. 346, and Territory v. Lermo, 8 N. M. 566, 46 P. 16, are two cases decided by the territorial Supreme Court involving, in the first, the sufficiency of the instruction given on circumstantial evidence, and, in the second, the failure after request to instruct at all. If we could accept the interpretation placed by- defense counsel upon the language of the opinion in the Padilla -Case, we should be forced to confess the holding subject to the criticism directed against it by him. To be specific, under his interpretation of the'language employed (and it yields itself to such construction), the court holds the given instruction inadequate and not all 'defendant was entitled- to, finds the requested instruction more nearly supplies the inadequacy present in the one given, and yet holds it not reversible error to refuse the requested instruction. We think, however, that the opinion fairly construed does no more than to hold that the given instruction, while containing a statement of the rule sufficient to meet the requirements of law on the subject, and therefore not legally insufficient, might as a matter of discrimination in the choice of phraseology have had the thought to be conveyed more clearly expressed by substituting the language of the requested for that of the given instruction.
It should be remembered, too, that the Padilla Case was reversed on other grounds arid a new trial awarded. Little doubt could have existed but that upon a retrial the defendant would have the benefit of the instruction requested and refused at the first trial. Furthermore, if we should accept defense counsel’s interpretation of the language in the Padilla Case, here we find no such inadequacy in the given instruction as that interpretation must impute to the given instruction in the Padilla Case.
In the Lermo Case, the court’s general charge having failed to give any instruction on circumstantial evidence, it was, of course, error to refuse defendant’s request for one.
In so far as the requested instruction here involved told the jury that the facts and circumstances “must be such as apply exclusively to the defendant,” there was nothing in the evidence pointing to or suggesting another as perpetrator of the crime. Touching upon a charge of this kind, the Supreme Court of Alabama, in Pitman v. State, 148 Ala. 612, 42 So. 993, 995, said: “In view of this conflict of opinion in our own decisions, we remark, first, that such a charge is not proper at all, except in those cases where there is evidence pointing to one or more persons other than the defendant; second, it is not, proper if the nature of the offense is such that both may have been guilty; third, if allowed at all, a ‘theory’ hypothesized should be a reasonable theory.” See, also, Bowen v. State, 140 Ala. 65, 37 So. 233, and Owens v. State, 215 Ala. 42, 109 So. 109.
What we have said disposes of all claims of error predicated upon the record and embraced in points relied upon for reversal in the briefs filed on behalf of defendant. In oral argument, however, counsel for defense submits with great earnestness that to have brought his client to trial in early December, 1931, so close in point of time, upon the commission of a crime of the peculiar atrocity of this one, and in the very city where lay the scene of its commission, rendered it impossible for the defendant to have received a fair trial in the larger and truer meaning of that phrase. He argues that, no matter how damning or incriminating the evidence, & defendant asserting his innocence is entitled to trial by a jury selected in a vicinage free from the hot blood inevitably arising in a community which is the scene of such a crime.
The record before us furnishes no basis for this argument. It discloses no motion for change of venue. Oounsel seeks to explain his reason for not filing one. But, with a record before us barren of any hint or suggestion that the occasion for a change of venue existed or that any explanation of the failure to move for it was ever called to the attention of the trial court, it must be obvious to counsel that, under well-settled principles, we are in no position to consider the matter. The argument is all outside the record. Necessarily, cases must be decided in this court upon the record made below.
’ A careful study of the entire record fails to disclose error in the conduct of the trial. Defendant, represented both below and in this court by able counsel of long experience, appointed by the trial court, was convicted of a heinous crime and given the sentence prescribed by law. The judgment and sentence so. pronounced must stand affirmed, and it is so ordered.
WATSON, O. J., and HUDSPETH, BICKLEY, and ZINN, J.T., concur. | [
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BIOKLEY, Justice.
The case presented on the first appeal in this cause will be found in Knollenberg v. State Bank of Alamogordo, 35 N. M. 427, 299 P. 1077.
The “cause of action” asserted by plaintiff Knollenberg was the right to secure a cancellation of a tax deed held by the defendant State Bank of Alamogordo, the effect of which was a cloud upon the title of plaintiff. ,Said tax deed was alleged to be invalid for a number of reasons. Our holding was that none of such reasons were of any effect, and further that in the situation in which we found plaintiff, the only successful attack that she could have made on the tax deed was that the property conveyed thereby was not, at the time the taxes were laid thereon, subject to taxation or that such taxes had been paid, and that plaintiff not having made any such claims, the demurrer to her complaint which alleged various irregularities, in the proceedings, not affecting the essentials of taxation, should have been sustained by the trial court. The judgment was reversed and a mandate issued to the district court directing that the cause be reinstated, that the defendant’s demurrer be sustained, “and for such further proceedings as may be proper, etc.”
Thereafter, the court sustained the demurrer to the second amended complaint of plaintiff, and she was granted twenty days within which to plead further, subject to objection thereto by counsel for defendant.
Plaintiff then filed an amended complaint designated “First Amended Complaint after the mandate of the Supremo Court directing the demurrer herein filed by defendant be sustained.”
Defendant filed a “motion to strike Fourth Amended Complaint and for final judgment.” It appears that prior to the first appeal an amendment by interlineation had been allowed to the second amended complaint to which a supplemental demurrer was presented and sustained and the defendant and the trial court entertained the -new that such second amended complaint was in fact plaintiff’s third pleading and we will so consider it. The motion to strike was based upon the following grounds:
“1. That said pleading constitutes and is the Fourth Amended Complaint herein, the interposition of which should not be permitted in the light of the history of this cause as disclosed by the record herein.
“2. That the subject matter involved is res adjudicata as disclosed by the record herein.
“3. That the present pleading attempts to inject a new and different cause or causes of action by allegations of pretended fact at variance with, and repugnant to, the allegations of the former pleading here sought to be amended, for the obvious purpose of avoiding the consequences of the previous adjudication herein holding that said former pleading did not state facts sufficient to constitute a cause of action; and which allegations of pretended fact, if true, would constitute a new and different cause of action.
“4. That if the new allegations of pretended fact be not construed as constituting a new and different cause of action, then it is obvious that the subject matter comprising same is res adjudicata.”
The court sustained the motion upon the following grounds: “That the matters and things set forth in said Fourth Amended Complaint are substantially a repetition of allegations which have been heretofore fully considered by the Court; and also upon the ground that in the exercise of its legal discretion the Court finds that 'the pleading, Motion'to Strike which is here involved, being the Fourth Complaint filed in this cause, same should not be permitted to stand and should be stricken.”
Appellant claims that the court erred and abused its discretion in sustaining the motion to strike the amended complaint.
The court doubtless exercised its discretion to refuse to permit the filing of the plaintiff’s pleading in question under section 105-514, Comp. Stat. 1929, which is as follows: “If a third complaint, answer or reply be filed and adjudged insufficient as above, or the whole or some part thereof stricken out, the party filing such pleadings shall pay such costs and penalties as the court may assess and the court may in its discretion permit no further complaint, answer or reply to be filed and may render judgment on the pleadings.”
So far as the record discloses, the thing which moved the discretion of the court is: “that the matters and things set forth in said Fourth Amended Complaint are substantially a repetition of allegations which have been heretofore fully considered by the court.” Appellee did not press for a ruling upon the specific grounds of its motion to strike. If the court had merely sustained the motion to strike without more, we would have to assume that the trial court found in favor of movant upon all of the grounds presented by the motion, and examine them all here. Such, however, is not the case. The court, being satisfied that there was nothing new in the latest amended complaint, exercised its discretion to strike it. Appellee, however, concedes that the court was mistaken and that in subparagraph (b) of paragraph IY plaintiff alleges that the taxes for 1920 (the delinquency which was the basis of the proceedings eventuating in the tax. deed in question) were paid by plaintiff or her agents, and says: “This is new, but not properly aljeged — if true; and it is at variance with and repugnant to, allegations in the former pleading wherein plaintiff admitted non-payment of the taxes for 1920 and alleged efforts to pay the same; such an amendment not being permissible.”
Appellee claims that this new matter introduced an entirely new and different cause of action and invokes section 105-605, Oomp. Stat. 1929, which inhibits amendments substantially changing the cause of action or defense. This section refers to trial amendments. The territorial Supreme Court, in Bremen Mining & Mill. Co. v. Bremen, 13 N. M. 111, 79 P. 806, 811, discussing amendments, said: “The effect of the statute is to inhibit amendments substantially changing the claim or defense on the trial, tut not tefore the trial.” Before the trial, considerable latitude is allowed. The territorial Supreme Court went on to say: “Amendments are favored and should be liberally allowed in the furtherance of justice.”
In the case at bar, plaintiff’s complaint had originally been held by the trial court to be sufficient to withstand defendant’s demurrer. On the former appeal this court at first thought so, but withdrew an opinion so holding and decided, in a substituted opinion, that the defendant’s demurrer should have been sustained and ordered that it be sustained. The very thing which we found vitally absent, i. e., “that the taxes have been paid,” appellant (plaintiff) now alleges. It may well be doubted that appellee’s contention that this allegation states an entirely new and different cause of action is tenable. Plaintiff’s claim sought to be enforced was a cancellation of the tax deed held by defendant, and a claim that defendant’s asserted tax title did not exist. The claims in the old and new pleading's are closely identified. However, we need not go further into that question because of what we have said as to the effect of section 105-605, Comp. St. 1929.
Our holding on the first appeal in the ease at bar following the decisions in a group of tax cases, therein cited, while just, resulted in pronounced misfortune to the taxpayer before the court. If she had paid the taxes, the enforcement of the payment of which gave rise to the tax deed in question, she ought in justice be allowed to prove it, unless rules of procedure plainly and unavoidably preclude her effort to do so.
Viewing the whole situation, we think the court abused its discretion in permitting “no further complaint * * * to be filed” and in rendering judgment on the pleadings.
For the foregoing reasons, the judgment is reversed and the cause remanded, with directions to restore the stricken amended complaint to the files, and to proceed further in the-cause as may be proper, and it is so ordered.
WATSON, C. X, and SADLER, HUDSPETH, and ZINN, XL, concur. | [
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NEAL, J.
This is an appeal from a judgment of the district court of Santa Fé county, awarding the appellee a peremptory writ of mandamus, requiring the appellant, the state tax commission, to approve the appellee’s voucher for reimbursement of expenses in the sum, of $699, alleged to have been incurred by her while employed by the state tax commission, as delinquent tax collector for Valencia and Sandoval counties, and to require the appellant, the state auditor, to issue a warrant to the state treasurer therefor, and the treasurer to pay the same.
The petition, among other things, alleges that the expenses of appellee for which reimbursement was sought, was ordered incurred by the tax commission; that the appellee expended the money pursuant to such order; that her voucher therefor was duly presented to the state tax commission for approval, and was by it disapproved; that sufficient money was in the proper fund to pay the claim; and that appellee had no adequate remedy at law.
The alternative writ was issued, and, on return of the writ in answer, the appellant admitted employment of appellee, the sufficiency of the fund to pay the claim, admitted the appellee’s voucher was presented and disapproved, alleged that petitioner had an adequate remedy at law, and, by denial of knowledge or information of facts alleged, placed in issue the other material issues of the complaint.
Upon a hearing, judgment was rendered granting the peremptory writ o‘f mandamus, and an appeal was duly taken and the cause presented in this court.
The facts of. the ease are: (1) As admitted by respondent tax commission, that on June 28, 1930, appellee was appointed delinquent tax collector' for Valencia and Sandoval counties, at a salary of $2,400 per year; that she served as such for eight and one-half months, presented her vouchers for salary, and the same were approved and paid; and that there is enough money in the state tax commission fund from Valencia and Sandoval counties to pay the sum claimed by appellee, and that appellee presented her reimbursement expense voucher to the commission, and the same was disapproved. (2) The court found on issues controverted in the pleadings that the state tax commission ordered or authorized that appellee incur expenses of $250 for clerical help in making out tax certificates, $50 per month for automobile expense, and $24 for stamps, a total of $699, for which she presented her voucher for approval.
Appellant assigned errors as follows:
“1. The court committed error in overruling appellant’s, the State Tax Commission’s Motion to Quash Alternative Writ.
“2. The court committed error in overruling appellant’s Demurrer to the evidence introduced in behalf of appellee.
“3. The court committed error in rendering judgment against the appellant, the state tax commission, in the sum of Six Hundred and Ninety-Nine Dollars. ($699.00)
“4. The court committed error in issuing a Peremptory Writ of Mandamus against the appellant, the State Tax Commission.”
These specifications of error are not separately treated in the brief. Remarking that they are interwoven, counsel have proceeded to argue a single proposition, which is, in substance, that this is not an appropriate case for mandamus; in the. language of counsel, “It is an attempt to recover or collect on disputed contract or claim by mandamus.” This is the sole question before us.
For all purposes of this case at least, it may be admitted that the clear legal duty necessary to support mandamus [Carson Reclamation District v. Vigil, 31 N. M. 402, 246 P. 907; State ex rel. Johnson v. Village of Carrizozo, 35 N. M. 597, 4 P.(2d) 922] extended only to the auditing of appellee’s claim, and that the allowance or disallowance of it rested in the sound discretion of the commission, without right of review by mandamus. Comp. St. 1929, § 86-103. That is to say, if appellant commission had audited the claim, and, in the exercise of its judicial discretion, had disallowed it, the decision could not have been attacked.
But this is not an original proceeding in this court. It is an appeal. Our review is merely to correct error in the judgment; such error only as, according to established practice, is available on review. And so we must inquire whether appellant commission is in a position to urge its single proposition.
The law being as we have assumed, it is doubtful if the alternative writ was good. It assumed a legal duty to allow the claim upon the facts stated. It should have been based upon the legal duty to audit and thus to exercise the judicial discretion to allow. The writ might properly have been quashed. A motion to quash was interposed, and present ed, among numerous others, the point here urged. The trial judge overruled the motion on the single ground that the procedure was not authorized by statute; holding, correctly, that the points of law embraced in the motion might and should be raised in the answer. In any event, appellant commission did not see fit to stand upon the motion. It pleaded over.
When we come to consider appellant commission’s separate answer, we find that which we think cures the defects in the alternative writ; that is to say, we find that which is persuasive that the commission failed to perform the clear legal duty to audit this claim, and that the disallowance of it is not equivalent to, and should not be deemed, an adverse finding on either question of fact before the commission; those questions being whether the .expenditures had been authorized and whether the several sums claimed had been expended.
Answering allegations that appellee had been authorized to make, and had made, the expenditures, appellant commission pleaded oddly that it had “no knowledge, information or record” thereof, and so denied those allegations “for the purpose of proof.” It averred that it “refused to approve relator’s claim or issue a voucher therefor until the matter was determined by a court or jury.” It denied that appellant “does not have a plain, speedy and adequate remedy at law.”
Then, by way of new matter, appellant commission, among other things, pleaded:
“1. That the records and minutes of the State Tax Commission do not show in the appointment of said relator any contract to pay relator any other sum in excess of $2400.-00 per year.
“2. That the respondents, Byron O. Beall, Juan N. Vigil and Prager Miller, are not bound by any verbal statements made by the former State Tax Commission or any members thereof.
“3. That the 'payment of any sum by the State Tax Commission other than provided by law, upon the verbal statement of an individual would be illegal and void.
“4. That the relator has a speedy and adequate remedy at law.
“5. That the respondents, Byron O. Beall, Juan N. Vigil and Prager Miller, in this matter before the Court cannot be compelled by mandamus to pay relator’s claim until a court of competent jurisdiction has adjudicated the claim.”
Thus is made plain the real basis of the commission’s action. It seems, first, not to have understood that it and it alone possessed the power to allow the claim as a matter of judicial discretion. It took the position that a court and jury must liquidate it before its allowance could be compelled. It took the position that some remedy other than mandamus was open to appellee, either before or after the disallowance of the claim. It seems, second, and perhaps more important, to have considered that the lack of a minute entry of an authorization was fatal to the claim.
These conclusions as to the grounds upon which the commission acted find support in its records, showing: “The hill was refused, except fees for January, there being no authority to pay any other hills or any other expenses.”
These positions are clearly untenable. Appellee had no recourse except to the commission for an audit of her claim. If it would have been “illegal and void” to have allowed the claim upon the commission’s records, it malees no effort to maintain that position here. We should no doubt assume that the law is otherwise. State ex rel. Stephens v. State Corporation Commission, 25 N. M. 32, 176 P. 866. But, if we were to assume that a claim by a delinquent tax collector for expenditures is utterly dependent, as matter of law, upon record evidence of previous authorization, we fail to find in the present record the deficiency to which the commission seems to have attached such importance.
It is an admitted fact that the record adequately showed the employment of C. B. Thompson at the salary and with the expense allowances here claimed by appellee. Then the record shows this: “The Commission now meets pursuant to adjournment for the consideration of such business as might come before it. In the matter of the resignation of C. B. Thompson and appointment of Anna H. Thompson delinquent tax collector of Sandoval and Valencia Counties; Mr. C. B. Thompson Delinquent Tax Collector for Sandoval and Valencia Counties having heretofore submitted his resignation as such Delinquent Tax Collector, it is ordered that the same be accepted and effective on the qualification of his successor in office; and the Commission having before it the application of Anna H. Thompson for appointment as Delinquent Tax Collector, therefore it is ordered that the said Anna H. Thompson be and she hereby is appointed Delinquent Tax Collector of Sandoval and Valencia Counties, said appointment to be. effective on her qualifying by filing an oath of office and surety bond in the sum of three thousand dollars.”
This record may not be conclusive. To our minds, however, it is prima facie evidence that appellee was simply to step into the shoes of C. B. Thompson. There was a novation by which appellee became the employee of the commission, a contracting party with it, in the stead of Mr. Thompson. This record was clearly intended to represent a contract. It refers expressly to the existing contract. If the terms of the old contract were not continued, the new contract is entirely silent as to compensation. The commission approved the salary of $200 per month. In so doing it must have relied upon the original contract as controlling. The statute fixes no salary, merely a maximum. Comp. St. 1929 § 141-703.
So we conclude that this is a plain case of refusal to perform a clear statutory duty; not a duty necessarily to allow the claim; a duty to audit it. It is a case warranting mandamus to compel performance of it. If the case were original in this court, we should command the commission to audit the claim in accordance with its duty as herein set forth. The judgment of the district court goes further. It requires approval of the claim. No objection is here urged that the judgment is too sweeping. The contention is that appellee was entitled to no remedy whatever. The facts have been tried and the record supports the judgment rendered. If the trial court went too far in “liquidating” the claim, it is an error to which appellant commission invited it. Well-known principles of appellate procedure forbid that we should remodel the judgment, of our own motion, to correct an error not pointed out in either court.
In State ex rel. Garcia v. Board of Commissioners, 22 N. M. 562, 166 P. 906, 1 A. L. R. 720, on principles here recognized,' the judgment was at least too sweeping, in that it required payment of the amount claimed. The objection to such control of the “judgment and discretion” of the board of county commissioners not having been made until the second appeal, the judgment was affirmed on the doctrine of “law of the case.” That doctrine of appellate procedure is no more firmly established and of little, if any, more importance than the principle that a judgment will not be reversed for error not pointed out below or claimed here.
The judgment will accordingly be affirmed and the cause remanded. It is so ordered.
BICKLEY, C. J., and WATSON, SADLER, and HUDSPETH, JJ., concur. | [
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BIOKLEY, Justice.
Appellant filed liis claim with the Commissioner of Public Lands for refund alleged to have been ei’roneously paid by him. The proceeding is under the provisions of chapter 99, Laws 1931.
Appellee, commissioner, indorsed his disapproval thereon and filed it in the district court of Santa Fé county, together with a statement of facts upon which his disapproval was based. Upon the record before the district court, a transcript of which is before us, the court sustained the commissioner.
It appears that Commissioner Field, on October 1, 1922, issued to Pope a grazing lease for 47,459.48 acres of state land for a term of five years from that date, and for a rental of 5 cents per acre per year. A down payment of one-fifth was made and the remainder was evidenced by four equal, joint, and several promissory notes of even date signed by the lessee and by two other persons satisfactory to the commissioner, due in one, two, three, and four years, respectively, as provided by section 132-114, Comp. St. 1929. Each of the notes bore 12 per cent, interest from maturity, and each contained a provision for acceleration of the due date upon default of the lease to the effect that, upon such default, all of the notes would become due and payable at once. Lessee Pope failed to pay the notes which fell due on October 1, 1923 and 1924, respectively. On December 9, 1924, Martinez filed two applications to lease the land covered by the Pope lease at a rental of 3 cents per acre.
Prior to the date of the applications by Martinez and subsequent to the date of the issuance of the Pope leases, the then commissioner, Baca, had issued a general order reducing the rental charge on all state grazing lands to the sum of 3 cents per acre. On May 9, 1923, and August 17, 1923, the then Attorney General rendered opinions addressed to the commissioner, Baca, to the effect that the commissioner had authority to re- ' duee the rentals on ¡state lands for grazing purposes to 3 cents per acre as to future leases, but that such reductions could not lawfully apply to existing leases or any portion thereof. Opinions Nos. 3705-3730.
■ At the time of considering the application of Martinez, the commissioner was confronted with the question of business policy as to whether to exercise his option to forfeit the Pope lease on account of his default or to look to the notes and the security of the lien upon the improvements placed upon the land by Pope. Sections 132-116, 132-121, Comp. St. 1929. Exercising what seemed to him a proper discretion, Commissioner Swope required that Martinez deposit with him $5,000 for the purpose of protecting the state against any loss by reason of the state releas ing its claim of lien against the improvements on the land in the amount of the unpaid Pope notes and interest thereon, after maturity. This deposit being made, two leases were made to Martinez, covering in the aggregate the land described in the Pope lease, on the basis of a rental of 3 cents per acre per annum, and thereafter on January 27, 1925, Commissioner Swope canceled the Pope lease and the said two leases issued in lieu thereof were delivered to Martinez. Thereafter, appellant purchased the interest of Pope in the land and improvements at a deed of trust foreclosure sale and secured a master’s deed therefor. Appellant also purchased from Martinez one of said leases which covered 39,906.41 acres except one section, and on April 16, 1925, filed in the commissioner’s office an assignment in due form, assigning said lease from Martinez to appellant. Commissioner Swope refused to approve the assignment until appellant should pay into his office the sum of $5,723.17, which was the amount the commissioner claims was owing on the Pope lease and notes secured by lien; the sum so demanded being made up of the following items:
“Due October 1, 1923, Note No. 1, Pope Lease, $2,387.97.
“Interest on same from October 1,. 1923, to January 27, 1925, at 12 per cent, per annum, $387.09.
“Due from October 1, 1924, Note No. 2, Pope Lease, Interest at 12 per cent, per annum, to Jan. 27, 1925, $91.54.
“Difference in rentals between' Pope Lease and the ■ two Martinez leases, for the years commencing October 1, 1924, 1925 and 1926, respectively, each in the sum of $955.19, and the three aggregating $2,865.57.”
After considerable negotiations between the appellant through his agents and attorneys, in which arguments pro and con, on the correctness of the commissioner’s position were indulged, the appellant paid the sum demanded of him, protesting that it was an overpayment and unlawful demand. Whereupon the commissioner approved the assignment by Martinez to appellant. At the time of such payment, the Pope notes were held by the commissioner; they not having been passed into the hands of a purchaser.
The alleged erroneous payments for which refund is claimed by appellant is the difference between 5 cents per acre provided for in the two Pope rental notes, and the Martinez rental, amounting in the aggregate to $1,-910.38, and interest on the Pope note No. 1 from October 1, 1923, to January 27, 1925, at 12 per cent, interest, $287.09, and interest on Pope ¡note No. 2, from October 1, 1924, •to January 27, 1925, at 12 per cent, interest, $91.54, a total amount of $2,389.01.
Appellant advances the proposition that the relationship between the state and a lessee of state lands is that of landlord and tenant, and governed by the general rules of law governing such relations. That under some circumstances, such general rules may be of assistance, we do not doubt. They were invoked in American Mortgage Co. v. White, 34 N. M. 602, 287 P. 702, 703. One of these rules, says appellant, is that: “A re-entry for breach of covenant or condition precludes the right to recover rent which has not accrued before re-entry.” 35 C. J. p. 1077.
The commissioner may have concluded that the contract was an entire one, the lease term being for the full term of five years, and that the down payment in advance and the acceptance of the four notes was equivalent to payment in advance. Section 132-121, Comp. St. 1929, would seem to lend color to such a conclusion because it is therein provided that in case of the nonpayment of rental notes, upon notice to lessee and other makers of the notes, the lessee fails to comply with the demand made in such notice, the other makers upon such rental notes, may pay same and have the rights of such lessee transferred to them, and also in case of default of payment of such notes, any creditor of the lessee may pay same and have the rights of any such lessee transferred to him. If the commissioner so viewed the matter, he would have found support for the view that where rent is payable in advance, the tenant is the one to suffer by reason of the nonapportionability of the rent; the lessor being, it seems, entitled to the rent for the whole period, though he re-enters the day after it falls due. See Tiffany, Landlord and Tenant, p. 1179. But it is not necessary that we make any declaration upon this interesting question. When Pope failed to pay a rental note when it fell due, all the notes became due. The commissioner was then in a situation to exercise his option to remain quiescent and look to the lessee and the two other makers of the notes for payment, leaving them to such recoupment as the law provides, and also look to the security of the lien on the improvements on the lands or on the other hand, become assertive, and cancel the lease. He did not cancel until he had arranged to 'protect the state’s interest by requiring the applicant, Martinez, to step into the shoes of Pope and carry out, in effect, the terms of the Pope lease, by paying 5 cents per acre; he having been in effect advised by the Attorney General that to do otherwise would be unlawful. So much for the difference between the 5 cents per acre in the Pope lease, and the 3 cents per acre chargeable under the general order of Commissioner Baca. We find that as to such-matter, the commissioner acted within his powers and as was his duty prudently to act.
Appellant also urges that the commissioner had no right to insert the acceleration clause in the notes. Appellant concedes that to do so has been the practice of long standing in the commissioner’s office. It seems to be supported by common sense. The rent for the entire rental period is ‘‘payable cash in advance.” The privilege is extended to the lessee to pay one-fifth in advance and to give four secured- notes of even date for the remainder, due in one, two, three, and four years, respectively. In case lessee fails to pay any of the notes, or otherwise violates any of the terms of the lease, and whether the- lease is forfeited or not, it would seem to be an unnecessary burden upon tbe commissioner and contrary to the interest oí the state to require that four actions be brought to enforce liens upon several, separate notes or otherwise to collect deferred payments evidenced by notes which are a substitution for “cash in advance.” It is a provision not unusual in the business world. We said in American Mortgage Co. v. White, supra: “In State ex rel. Otto v. Field, 31 N. M. 120, 241 P. 1027, we decided that the jurisdiction of the commissioner over the public lands extended to all cases, except as otherwise specifically provided by law.- Except as otherwise specifically limited by law, the power of the commissioner is very broad, and he is a sort of business manager of the lands under his control.”
But appellant says that as the statute does not mention acceleration of payments of the several notes upon the default of one of them, the commissioner has no power to so provide. A similar contention was made in American Mortgage Co. v. White, supra. It was there argued that since the statute authorizing assignments of leases with the consent of the commissioner did not specifically authorize conditional assignments or assignments for collateral security, no power exists in the land commissioner to consent to or approve assignments of that character. The contention was held to be without merit.
What we have said as to the acceleration clause answers the contention that the statute being silent as to interest, the commissioner has no right to require that interest be paid even after maturity. Under some circumstances the. lessee must pay “cash in advance” or forego leasing the land —for instance, if he is unable to produce the two additional makers satisfactory to the commissioner to sign the notes with him. The lessee who gives notes with the prevailing rate of interest, and thus retains the use of his money, would be on a parity with the lessee who pays “cash in advance.” He really has some the best of it by being required to pay interest only from maturity of the notes.
Appellant claims that the interest is usurious. Passing by the question as to whether the usury statutes are controlling upon the sovereign (the state), we find it stated that a note payable two years after date, without interest, to bear a high and otherwise prohibited rate from maturity until paid, is not usurious. Wight v. Shuck, Morris (Iowa) 425, affirmed Shuck v. Wight, 1 G. Greene (Iowa) 128. The court there said: “If the maker paid the money at the end of two years, no interest is to be paid at all. It would be contrary to all reason and justice to allow him to violate his agreement by not paying at that time, and set up a consequence of his own breach of the contract as a protection against all liability thereon.” The court cited Ghitty on Contracts, wherein it is said: “An agreement to pay double the sum borrowed, or any other penalty on the non-payment of the principal sum on a certain day, is not usurious because it is in the power of the borrower to discharge himself by paying the principal only, within the time limited.” Many cases may be found announc ing similar principals and digested in American Digest, Decennial Edition, Usury, § 48. And see note in 7 Ann. Cas. page 489, where it is said: “The rule seems to be well settled that in the absence of statutory provisions to the contrary a contract for the payment of money is not usurious because it stipulates for the payment of more than the statutory rate of interest after maturity, since such an increased interest is regarded as a penalty which the debtor could avoid by punctual payment of the debt at maturity.” Closely related to these principles, are those applied in American Investment Co. v. Lyons, 29 N. M. 1, 218 P. 183, where we decided:
“1. Where the interest charged upon a loan does not exceed what the interest thereon would total at the rate of 10 per cent, per annum, computed upon the basis of the time such loan is to extend, it is not usurious, even though the payments thereof are so divided that during the first 4 years of a 10-year loan each annual sum required exceeds 10 per cent, of the face of such loan.
“2. An intent to charge or exact interest at a prohibited rate is necessary to constitute usury.”
It is apparent that it was not the intent of the state to earn interest by the forebearance, but to stimulate prompt payment, Mathematical computation readily discloses that had 10 per cent, per annum (the maximum legal- rate) been charged over the entire time from the date of the note, October 1, 1922, to January 27, 1925, the date appellant says he was required to pay it, it would be in substantial excess of the amount appellant was required to pay at 12 per cent, after maturity.
Besides all this, the appellant invaded a situation where the commissioner and Martinez were satisfied. If there was any abuse of discretion which was prejudicial to any one, it may be said to have been prejudicial to Martinez. He was not complaining. To have yielded -to the importunities for an unqualified consent to the assignment of the lease, by Martinez to appellant, the commissioner would have been required to disturb the status quo by surrendering to Martinez the $5,000 he had on deposit in lieu of the lien against the improvements on the land, which lien the commissions; had theretofore relinquished. Such was the view of the commissioner as reflected by the correspondence. The original 1912 act, section 5196, Code 1915, provided for the assignment of leases with the consent of the commissioner. By amending chapter 73, Laws 1915, § 3 (Comp. St. 1929, § 132-119), it was provided: “Any assignment or relinquishment without the written consent of the commissioner shall be null and void.”
Assuming that the commissioner’s discretion thus reposed may not be exercised arbitrarily or capriciously, he who challenges its exercise in a particular case must show a clear right, and it may not. be disturbed or controlled by the courts except in a plain case of abuse.
Viewing the whole matter, we are satisfied that the commissioner did not abuse his dis cretion in imposing the terms required of appellant as a condition precedent to approving the assignment from Martinez, and finding no error in the record, the judgment of the district court is affirmed, and it is so ordered.
WATSON, O. J., and SADLER, HUDS-PETH, and ZINN, JJ., concur. | [
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HUDSPETH, J.
The appellant, Albino Costales, hereinafter referred to as defendant, was convicted in the district court of Bernalillo county of the crime of assault with intent to kill, and, from the judgment and sentence to a term in the penitentiary, he appeals.
The following statement of the facts appears in appellant’s brief: »
“On the 19th day of November, 1931, Charlie N. Burgin was working as a stationary fireman in the powerhouse at the Santa Fé Shops in Albuquerque, New Mexico, and had been working at said shops for more than nine years, and was acquainted with the defendant, Albino Costales, who on said date was working at said shops at the planing mill as a fireman and out of each week said Albino Costales spent one day as an oiler in the main power, plant. * * *
“About six-thirty in the evening, Charlie N. Burgin went around behind the boilers, got a box to sit on and ate his lunch. Shortly afterwards while sitting on the box and about fourteen inches from the window and preparing to smoke, he was shot in the shoulder, by a twenty-two calibre bullet, which came through a window of the power house, making a little round hole. At that time about half of Burgin’s body was exposed to the outside.’’
' A flash-light was found near the point from which the bullet was fired. The police force of Albuquerque rendered efficient service in detecting and preserving evidence of the crime, and arrested defendant. He at first denied that he had been near the scene of the crime, and stated that his rifle and flash-light were at his home, and made other false statements, but, after his rifle and flash-light were exhibited to him at the police station, he signed a statement, which follows:
“Albuquerque, N. M. Nov. 20th, 1931.
“The following statements are true to the best of my knowledge & belief & are made without duress & without being promised anything in return.
“I Albino Costales, age 43 of 503 E. Manuel, work at the planing mill at the Santa Ed Shop. On 11-19-311 went to work at 4 P. M. & took my rifle with me in ear. It had one cartridge in it. It is a 22 calibre Winchester pump rifle. About 7:00 P. M. I took my rifle & proceeded as described in attached diagram to the power house & while passing the East side of the power house I stumbled & the gun went off. I heard some one yell inside the power house & I got scared & went .back. I hid the rifle on east side of the planing mill.
“This is the first time I have brought my rifle to the shops.
“I also lost my flashlight on east side of the power house.
“I was shown the flashlight at the Police Station.
“Albino D. Costales.”
The seniority rule prevailed in the shops; that is, the oldest man in point of service had the right to the job. A steam line was being built from the main plant, where Burgin worked, to the planing mill, where defendant was employed as fireman, with the purpose of eliminating the steam plant in the planing mill. Defendant talked with various parties shortly before the crime was committed about his prospect of being laid off upon the completion of the steam line. Burgin was defendant’s senior in point of service. It was the state’s theory that defendant committed the crime in an effort to make a vacancy in order that he might retain a job in the shops. Defendant had been convicted of theft of a car about ten years previously.
The first point urged by defendant is that the court erred in overruling his motion to have Jesus Candelaria, an employee of the engineering department of the city of Albuquerque, excused from the jury for cause “on the grounds of pecuniary interest, real or imaginary, and of business relationship with one who had participated actively in the prosecution of said defendant, it appearing that the Police Department of said city had been active in the prosecution.”
Under the rule prevailing in most jurisdictions, Candelaria was a qualified juror. Thompson v. Commonwealth, 88 Va. 45, 13 S. E. 304; State v. Bewis, 50 Nev. 212, 255 P. 1002; 35 C. J. 313. However, it is sufficient to say that it is not shown that an objectionable juror was forced upon the defendant by the ruling of the court. The juror was excused upon a peremptory challenge exercised by the defendant. Three jurors were selected after defendant had exhausted his challenges, but it is not shown that any one of them was objectionable. The rule is stated in State v. Bailey, 27 N. M. 145, 198 P. 529, 530, where the following quotation from Colbert v. Journal Pub. Co., 19 N. M. 156, 142 P. 146, appears: “It is our opinion that the better rule is that an erroneous overruling of a challenge for cause, even though the peremptory chállenges are thereafter exhausted, will not war rant a reversal of the judgment unless it is further shown upon appeal that an objectionable juror was forced upon the challenging party and sat upon the jury after such party had exhausted his peremptory challenges.”
The defendant maintains that the court erred in overruling the motion for a new trial because Gregorio Lopez served on the jury ■and was not able to understand or speak the English language except in its most elementary form, which facts were only discovered by defendant after the trial had been held without the aid of an interpreter and the verdict rendered. The learned counsel of the defendant does not maintain that ignorance of the English language is ground for the disqualification of a juror, but states that the juror deceived court and counsel on voir dire by representing that he understood English. He cites cases listed in annotation following State v. Pratt (114 Kan. 660, 220 P. 505) in 34 A. L. R. 189.
The juror is of the same blood as defendant ; -Spanish being the mother.tongue of both. Nearly half of those possessing the qualifications of a juror in this state are of like origin. Provision is made by law for a Spanish-English interpreter for the district courts, and it is the uniform practice to use an interpreter whenever any member of the jury-requests it, or states that he does not understand English sufficiently well to fully comprehend the proceedings. Defendant had a right to examine the juror. State v. Douthitt, 26 N. M. 532, 194 P. 879; Territory v. Lynch, 18 N. M. 15, 133 P. 405. It has been held, in cases involving statutory qualifications, that the defendant, by accepting the juror, waived his right to object after the verdict was rendered. Territory v. Baker, 4 N. M. (Gild.) 236, 13 P. 30; U. S. v. Folsom, 7 N. M. 532, 38 P. 70; U. S. v. Gomez, 7 N. M. 554, 37 P. 1101. The trial court, which has large discretion in the matter (People v. Loper, 159 Cal. 6, 112 P. 720, Ann. Cas. 1912B, 1193; annotation, 34 A. L. R. 194), was satisfied as to the qualifications of the juror.
In view of the frequency with which this question is raised and of the fact that the members of the bar fully realize that it is their duty to satisfy themselves as to the ability of the jurors to comprehend English before the services of an interpreter are dispensed with, we hold that the size of a juror’s vocabulary, or the extent of his ability to understand English, are not proper subjects of inquiry after the verdict is rendered.
The next point urged by defendant is stated as follows: “It is reversible error for the trial court to refuse to admit in evidence a revolver of a defendant charged with assault with intent to kill, (by the use of a 22 calibre rifle), where the defendant had testified to the ownership of such a revolver, the same being offered as evidence of his choice of weapons, and for the purpose of proving the absence of an intent to kill.”
The defendant had testified, without objection, that the pistol was of' “forty-five or thirty-eight” caliber, and that he had had the weapon in his house for three or four years. A defendant has a right to fortify his own testimony on a point in issue in any way that he can. D’Ambra v. Rhinelander, 234 N. Y. 289, 137 N. E. 333. But this pistol was tendered in evidence to corroborate the defendant on a collateral issue, and in such cases it is largely within the discretion of the trial court to say what proof of collateral facts is or is not too remote. Fitch v. Martin, 84 Neb. 745, 122 N. W. 50; State v. Leeper, 199 Iowa, 432, 200 N. W. 732; Lock v. Chicago, B. & Q. R. Co., 281 Mo. 532, 219 S. W. 919; 22 C. J. 168; 10 R. C. L. p. 927.
“Evidence may he relevant, and yet its relevancy may he so slight and inconsequential that to receive it would be to distract attention that ought to be concentrated on what bears directly on vital points, and to confuse rather than to illuminate the case.” State v. Wade, 96 Conn. 238, 113 A. 458, 462.
The proffered evidence was easily manufactured and of little probative force. In weighing the question of the choice of weapons between a .22 rifle and a pistol of large caliber, one arming himself to kill in the nighttime a man situated as Burgin was should have considered the facts of common knowledge that the discharge of the larger cartridge would result in a louder report, and that, except at very close range, the rifle is the more accurate weapon. The force of a bullet fired from a pistol of large caliber is, no doubt, greater than that of a bullet which was fired from the .22 rifle, but the rifle bullet had sufficient force, as appears from the record, to have killed Burgin if it had entered his body at the right point.
It was within the discretion of the trial court to determine whether or not the tendered exhibit was relevant, and its rejection was not reversible error.
The next point raised by defendant is as to the alleged prejudicial and erroneous statements made to the jury by the district attorney in his final argument.
The remarks were not incorporated into the record by way of bill of exceptions, and no objection was made at the time. The matter was called to the attention of the trial court for the first time in the motion for a new trial. Under the rule in this jurisdiction, objections must be made to the improper argument, and a request made to take it from the consideration of the jury. State v. Sedillo, 24 N. M. 549, 174 P. 985; State v. Vaisa, 28 N. M. 414, 213 P. 1038; State v. Balles, 24 N. M. 16, 172 P. 196; State v. Hawkins, 25 N. M. 514, 184 P. 977; Davis & Carruth v. Valley Mercantile & Banking Co., 33 N. M. 295, 265 P. 35.
A more serious question raised by defendant, in his motion for a new trial, is with reference to an oral communication sent to the jury by the presiding judge, through the medium of a bailiff, after they had retired to consider of their verdict, and while the court was in recess.
The court, in overruling the motion for a new trial in the memo, opinion, states: “I would like to mention the matter raised in the fourth paragraph of the motion. Of course no record appears of the matter and this, in itself, would be a sufficient answer to it, but I think that the incident should be mentioned by the Court. Counsel for defendant was misinformed of the actual facts of the incident. The jury wanted to know whether ■they could write the recommendation for clemency on the form of verdict furnished them, and that was the extent of the instruction of the Court sent to the jury through the bailiff. The jury knew it had power to make the recommendation. No record was made of the incident or any exception taken, and the Court considered it quite harmless at the time. * * * ”
The high character of the trial judge is an adequate guaranty against any conscious act of unfairness, but his suggestion that the absence of a record would be a' sufficient answer to the point is potent in its persuasiveness of the soundness of the doctrine that the place for the judge is on the bench when he communicates with the jury, in order that there .may be a record, and for the other good reasons pointed out in State v. Hunt, 26 N. M. 160, 189 P. 1111, 1115.
Under the doctrine of the Hunt Case, “that any communication under such circumstances is improper, and that the party in order to secure a setting aside of the verdict was not required to show prejudice, but only the fact that there was such unauthorized communication,” this verdict would have to be set aside.
The rule has been greatly relaxed in modern times (16 C. J. 1165), and this is reflected in the decision of this court in State v. Clements, 31 N. M. 620, 249 P. 1003, 1008, where Mr. Justice Watson, speaking for the court, said: “We cannot admit, therefore, that it is the law of this state that the bare fact of an unauthorized and improper communication necessitates in all cases a new trial, even in capital felonies. When it appears that there has been such communication, the important question is whether prejudice has resulted. Such a communication certainly requires explanation, not only to secure the accused in his rights, but to maintain the court’s authority. But if it satisfactorily appears that the communication was harmless and had no effect on the verdict, the rights of the accused do not require, and public interest does not permit, the granting of a new trial.”
Other cases supporting the less strict doctrine are State v. Borchert, 68 Kan. 360, 74 P. 1108, 1109; People v. Rettich, 332 Ill. 49, 163 N. E. 367; Walter v. State, 29 Okl. Cr. 221, 233 P. 240; Wireman v. Com., 212 Ky. 420, 279 S. W. 633; Evans v. State, 165 Ark. 424, 264 S. W. 933; Lewis v. United States (C. C. A.) 295 F. 441 (certiorari denied in 265 U. S. 594, 44 S. Ct. 636, 68 L. Ed. 1197); Mahan v. State, 179 Ark. 189, 14 S.W.(2d) 1113; Durham v. State, 179 Ark. 507, 16 S.W.(2d) 991; State v. Henderson, 168 La. 487, 122 So. 591; People v. Kasem, 230 Mich. 278, 203 N. W. 135; State v. Newland (Mo. Sup.) 285 S. W. 400; State v. Parker, 321 Mo. 553, 12 S. W.(2d) 428; State v. Hardee, 192 N. C. 533, 135 S. E. 345; Faulk v. State, 106 Tex. Cr. R. 504, 293 S. W. 1110; Maxey v. State, 104 Tex. Cr. R. 661, 285 S. W. 617; Annotation 62 A. L. R. 1468.
It is apparent that the communication, complained of in this case, had no effect on the verdict. We believe that the doctrine of the Hunt Case should be modified to the extent that, where it affirmatively appears that the defendant was not prejudiced by the communication between court and jury, it will not be held to be reversible error.
The communication was not an instruction within the meaning of 1929 Comp. § 70-102, requiring the court to instruct the jury as to the law of the case and to commit its instructions to writing. Territory v. Donahue, 16 N. M. 17, 113 P. 601; 16 C. J. 1032.
A desire to retain a job is an unusual motive for an attempt to take human life, but there is substantial evidence of facts which exclude every other hypothesis except that of guilt.
Finding no reversible error in the record, the judgment must be affirmed, and it is so ordered.
WATSON, C. J., and SADLER and BICKLEY, JJ., concur.
Z1NN, J., did not participate. | [
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HUDSPETH, J.
This is an appeal from a judgment in the sum of $3,768, with interest thereon rendered by the district court of Oolfax county in favor of appellee and against the appellants for the maintenance, care, and- custody of Maggie Thomas Boyd, an insane person, in the New Mexico Insane Asylum, from October 12, 1918 to April 1, 1929.
Maggie Thomas Boyd was- committed to the Insane Asylum as an indigent person by the district court of the Eighth judicial district on the petition of her father, John W. Thomas, May 12,1916, and remained in said asylum until April 1, 1929. The father of the lunatic died testate in the latter part of the year 1916, and his will was admitted to probate in Colfax county, by which he devised to his daughter, Maggie Thomas Boyd, lot 3 in block S, and lot 3 in block 18 in the town of Eaton. It is stipulated: “That Maggie Thomas Boyd, from the time said will was admitted to probate in May 1917, was entitled to enough out of the estate of her said father to provide for her a ‘fair and respectable living’ while she remained insane and that, if and when she regains sanity, she will he entitled to certain real estate devised to her by her said father together with the net earnings thereof from the date of her father’s death; and that, if she dies without regaining sanity, what remains of the property which would have gone to her had she regained sanity, will go to David J. Thomas and Willis O. Johns.”
David J. Thomas and Willis O. John were appointed and qualified as executors of the will of John W. Thomas and as guardians of the property of Maggie Thomas Boyd in the' year 1917. They continued in said offices until the year 1928, when appellant, John Leonard, was appointed to succeed David J. Thomas and Willis O. John as guardian of the property of Maggie Thomas Boyd. As a result of litigation between said guardian and David J. Thomas and Willis O. John, the said estate of John W. Thomas was distributed, and the real estate devised to Maggie Thomas Boyd and some $13,000 of accumulated income therefrom was delivered to the said Leonard, as receiver.
Appellants admit that the appellee intended to charge for the keep of the insane woman for the period covered by the claim sued upon, but deny that it had a right of action because the insane woman was admitted to the asylum as an indigent.
Section 130-312, 1929 Comp., is our statute on the procedure for inquisition of lunacy and the commitment of insane persons to the state asylum by a district judge. Among other provisions are the following: “And further, if said person is indigent, he shall so certify to the board of directors of the asylum, and shall order said person to he committed to said asylum, and such indigent insane person shall be admitted to said asylum upon the presentation of such certificate. * * * Provided, that in ease any person so found to he insane is possessed of property of any sort that can be subjected to the payment of the care and support of such insane person, then the court shall order all proper proceedings to be taken to subject such property to the payment of the care and support of said person. * * * ”
The certificate of the judge, on which the insane woman was admitted as an indigent person, authorized the asylum officials to keep her at state expense, but such inquiry and finding by the judge that the insane woman was indigent at the time of her commitment has no bearing on the right of the appellee to collect for her keep after her father’s will was admitted to probate; it being admitted that the appellee intended to charge, and did at the time charge, for the care and maintenance of Maggie Thomas Boyd for the period covered by the claim sued upon at the regular rate of $30 per month fixed for the keep of nonindigent insane patients at the state asylum. This rate was fixed under section 130-309, which authorized the directors of the asylum to “make regulations and fix the terms upon which insane patients who are not indigent or who are not residents of the state shall be permitted to enter or be cared for in said asylum.” That it was the right and duty of the directors of the Insane Asy? lum of New Mexico to make such charge, after Maggie Thomas Boyd came into her inheritance, the net income from which was nearly three times the cost of her keep at the asylum, is apparent. The fact that David J. Thomas and Willis O. John, who received the income of the property devised to the insane woman, did not account for it currently as her guardians, makes no difference. It was in their hands and available for her maintenance, and it was their duty to provide their insane ward with a “fair and respectable living” under the common law as well as our statute (section 62-114, 1929 Comp.), a duty which they failed to discharge.
The appellee furnished the insane woman necessaries with intent to charge therefor, being authorized so to do under the statute with reference to nonindigent patients.
“An insane person is liable for the reasonable value of things furnished to him necessary for his support. * * * This was so at common law, where the necessaries were furnished by an individual; and we have never seen a case, and do not think any can. be found, holding that this rule comes in conflict with any provision of the constitution of this or any other state of the Union. We see no reason why the same rule should not apply to a state hospital for the insane which does and furnishes for the insane person only those things required by the law of the state.” In re Yturburru’s Estate, 134 Cal. 567, 66 P. 729.
The weight of authority seems to be in accord with this opinion. McNairy County v. McCoin, 101 Tenn. 74, 45 S. W. 1070, 41 L. R. A. 862; Dandurand v. Kankakee County, 96 Ill. App. 464, affirmed 196 Ill. 537, 63 N. E. 1011; Palmer v. Hudson River State Hospital, 10 Kan. App. 98, 61 P. 506; Coleman v. Com’rs of Lunatic Asylum, 6 B. Mon. (Ky.) 239; Manders’ Committee v. Eastern State Hospital, 84 S. W. 761, 27 Ky. Law Rep. 254; Hopper v. Eastern Kentucky Lunatic Asylum, 85 S. W. 1187, 27 Ky. Law Rep. 649; In re Tye (1900) 1 Ch. (Eng.) 249, 69 L. J. Ch. 153, 81 L. T. N. S. 743, 48 W. R. 276; State Commission in Lunacy v. Eldridge, 7 Cal. App. 298, 94 P. 597, 600; Board of Chosen Freeholders v. Ritson, 68 N. J. Law, 666, 54 A. 839; Kaiser v. State, 80 Kan. 364, 102 P. 454, 24 L. R. A. (N. S.) 295; State v. Ikey’s Estate, 84 Vt. 363, 79 A. 850, Ann. Cas. 1918A, 575.
Appellants maintain that their plea of the statute of limitations should have been sustained. The asylum is a state institution (section 1, art. 14, Const.), controlled by its officials and maintained at public expense. Its directors are appointed by the Governor of the state, and they have no personal interest in the institution’s property. The loss of this claim would fall on all of the people of the state. Statutes of limitation ordinarily do not run against the state. State v. Board of County Commissioners, 33 N. M. 340, 267 P. 72. The appellee being an agency of the state, operating an asylum for the insane — a governmental function — the statutes of limitation do not apply. Central Hospital for Insane v. Adams, 134 Tenn. 429, 183 S. W. 1032, L. R. A. 1916E, page 94; State v. Moore, 90 Kan. 751, 136 P. 233, 236; Eastern State Hospital v. Graves’ Committee, 105 Va. 151, 52 S. E. 837, 3 L. R. A. (N. S.) 746, 8 Ann. Cas. 701; Wood on Limitations (4th Ed.) vol. 1, p. 170. 37 C. J. p. 715, states the rule: “According to the weight of authority the statute of limitations cannot be pleaded against an action by a state hospital for the insane, a body politic and corporate created by the state to carry out a public charity, and supported by the public revenues and controlled by the state’s officers, to recover for board and medical attention furnished to an inmate.”
Finding no reversible error in the record, and the judgment being clearly right under the facts in evidence, the judgment will be affirmed. It is so ordered.
BICKLEY, O. J., and WATSON and SAD-LER, JJ., concur. | [
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NEAL, J.
This is a suit in equity to require the enforcement of a contract for the exchange of land located in Chaves County, N. M., and belonging to the appellees 'herein for certain houses and portions of certain lots located in Albuquerque, belonging to the appellants. The complaint was filed in the district court of Bernalillo county on August 14, 1930. It alleged, in substance, residence of the parties, the execution of the agreement to convey and. exchange, the terms of the contract of exchange, the ability and offer of the appellees to perform the contract according to the terms thereof, breach of the contract upon the part of the appellants, and asking an accounting for rents, which were received or should have been received by the appellants during the time they were alleged to have been in default in .performance of the contract. The separate answers filed by the defendants admitted the execution of the contract, denied that Mrs. Welty had acknowledged the same before a notary public, and pleaded fraud in the procurement of the contract, ' and misrepresentation as to the property which it was claimed released the appellants from performance thereof.
■ On the issues, thus raised, the cause came for trial on January 16, 1931, and judgment was rendered on January 27, 1931, in favor of appellees. On February 21, 1931, appellees filed a motion to amend the pleadings and decree and to amend the agreement for the exchange of properties, so as to change the word “twenty-one” used in the agreement for exchange of property, in the complaint, and the decree, to the word “two,” when describing the number of the block in which the lots of the appellants were located in Albuquerque, N. M. The court took evidence upon this motion and heard the .same on the 14th day of March, 1931, sustained the motion to amend and entered its order accordingly.
Appellants reserved proper exceptions t.o the different rulings by the court, complained of, and to the decree as originally entered, and as finally modified. From the decree as modified, this appeal is taken.
Since the cause has been pending on appeal here, it appears that the appellants W. A. Welty-and Annie B. Welty have been declared bankrupts by the United States District Court for the District of New Mexico, and that an order of this court has been made upon the petition of Charles B. Phelps, trustee in bankruptcy, of the estate of W.- A. Welty and Annie B. Welty, substituting Charles Phelps, trustee in bankruptcy of the estate of appellants, party appellant, and that this cause proceed in the name of Charles B. Phelps, as trustee, in bankruptcy, of the estate of W. A. Welty and Annie B. Welty. The facts will be stated during the course of this opinion.
The first point presented by appellants is “that the court erred in correcting the final decree and all pleadings over the objections of appellants.”
Considering, first, the question as to the amendment of the decree itself:
Section 105-801, Comp. St. 1929, provides: “Any judgment, or decree, except in cases where trial by jury is necessary, may be rendered by the judge of the district court at any place where he may be in this state, and the district courts, except for jury trials, are declared to be at all times in session for all purposes, including the naturalization of aliens. Interlocutory orders may be made by such judge wherever he may be in the state on notice, where notice is required, which notice, if outside of his district, may be enlarged beyond th'e statutory notice, for such time as the court shall deem proper. Final judgments and decrees, entered by district courts in all cases tried pursuant to the provisions of this section shall remain under the control of such courts for a period of thirty days after the entry thereof, and for such further time as may be necessary to enable the court to pass upon and dispose of any motion which may have been filed within such period, directed against such judgment; Provided, that if the court shall fail to rule upon such motion within thirty days after the filing thereof, such failure to rule shall be deemed a denial thereof; and, Provided further, that the provisions of this section shall not be construed to amend, change, alter or repeal the provisions of sections -1227 (105-843) or 4230 (105-S46), Code 1915.”
In referring to. the effect of this section, this court said in Kerr v. Southwest Fluorite Company et al., 35 N. M. 232, 294 P. 324, 325: “The motion to vacate was interposed less than one year and more than 60 days after entry of judgment. It was therefore not maintainable under 1929 Comp. § 105-801, which restored, to district courts, during the period of 30 days, the control which they formerly had over their judgments during term time; which control had been held destroyed as the effect of abolishing terms of court except for jury cases. Fullen v. Fullen, 21 N. M. 212, 153 P. 294.” See, also, to the same effect, Gilbert v. New Mex. Const. Co., 35 N. M. 262, 295 P. 291.
Since it appears from the record in' this case that the motion to amend the judgment was filed within thirty days after the rendition thereof, and was decided by the court within thirty days from the filing thereof, we think the couirt- acted within its authority, and that at the time the motion amending the judgment was sustained and the judgment amended, the court- had full control of its judgment and jurisdiction and authority even upon its own motion to make any change, modification, or correction thereof which it deemed proper under the circumstances. Cases supra, and note 10, A. L. E. 556.
The cases cited to us by counsel for appellant, where amendments to judgments were sought, after the term of court at which they were rendered, are of little aid here, since in the case ¿t bar the court had never lost control of the case.
Considering, secondly, the question as to the amendment of the pleadings, if we consider the order as in, effect setting aside the judgment rendered on January 27, 1931, and thereupon permitting the amendment as a trial amendment to the complaint, the provisions of section 105-605, Comp. St. 1929, would be applicable.
If the order is considered as an amendment of the decree of January. 27, 1931, and, as permitting an amendment to the complaint after judgment, and all párties seem to have treated it as such, though this section would seem to apply to “final” judgments, as distinguished from judgments that had not passed from the control of the court, section 105-611, Comp. St. 1929, would apply. It is as follows: “After final judgment rendered in any cause, the court may, in furtherance of justice, and on such terms as may be just, amend in affirmance of such judgment, any record, pleading, process, entry, return or other proceedings in such cause, by adding or striking out the name of a party, or by correcting a mistake in the name of a party or a mistake in any other respect, or by rectifying defects or imperfections in matters of form; and such judgment shall not be reversed or annulled therefor.”
The statute also furnishes a rule of construction, which it is made the duty of the courts to apply in construing the provisions of law relating to amendments. This section, 105-621, Comp. St. 1929, is as follows: “It shall be the duty of the courts, so to construe the provisions of law relating to pleading, and amending the same, and so to adapt the practice thereunder, as to discourage, as far as possible, negligence and deceit, to prevent delay, to secure parties from being misled, to place the party not at fault as nearly as possible in the same condition in which he would have been if no mistake had been made, to distinguish between form and substance, and to .afford known, fixed and certain requirements in place of the discretion of the court or the judge thereof.”
It thus appears that in construing and applying the provisions of law relating to amendments, it is the duty of the court to place that construction upon the statute which will place the party not at fault as nearly as possible in the same condition in' which he would have been if no mistake had been made and to distinguish between the form and substance. It appears from the evidence adduced on the motion to amend and from the entire record in this cause that all parties and the court tried this cause upon the theory that the description of the lands as sot forth in the contract of exchange was correct.
Both appellants and appellees in testifying gave testimony relative to the property belonging to the appellants and located it on -Santa P6 street, in the Baca addition to the town of Albuquerque. That the property had been described in the original contract as being located in block 21 of Baca’s addition to the town of Albuquerque does not appear to have been- observed by any person during the triál or before the trial. It further appeared that there is no such land or block in the Baca addition to the town of Albuquerque as block 21, but that the land belonging to the appellant and as to which the contract of exchange was executed was really and in fact located in block 2 of said Baca addition. It clearly appears to our mind, and we think clearly appeared to the mind of the court, that the insertion of the writing and figure “twenty-one (21)” in the original contract was a clerical error of the scrivener, wholly inadvertent and unintentional. That all parties intended the block to be described correctly as block “two (2)” also seems a necessary conclusion, since the property the parties were contracting about, and the only property the appellants appeared to hare owned in that vicinity was located in said block 2 of the Baca addition. Until after the entry of the judgment, all proceedings were had upon the theory that the description of the property as set out in the contract and the pleadings was correct, W. A. Welty alleging that the property was the separate estate of Annie B. Welty, and Annie B. Welty makes the same allegation in her answer. No one seems to have discovered the error until, some time after decree, an abstractor discovered the mistake. The motion was then made to amend so as to correct the mistake under which all parties and the court had been proceeding throughout the trial. It is contended by appellant that the trial- court erred in permitting the amendment, since thereby there was injected into the case a new cause of action, to wit, that of reformation of the contract, and its enforcement as corrected, and to sustain this provision invokes the last clause of section 105-605, Comp. St. 1929, and the decisions of this court to the effect that an amendment which introduces a new cause of action is an amendment which substantially changes the claim or defense and may not be permitted “to conform the pleadings to the proof.” Loretto Literary & Benevolent Society v. Garcia, 18 N. M. 318, 136 P. 858; Candelaria v. Miera, 18 N. M. 107, 134 P. 829.
The leading case on this question is Loretto Literary Society v. Garcia, supra, which has been followed in the later decisions upon the same subject. Under the broad rule thus laid, the amendment here offered could not be allowed. However, that doctrine is not controlling upon us further than as actually applied heretofore'by this court. A case will seldom occur where its application would not be in furtherance of justice, but ^yhere, as in the present case, such an amendment is plainly necessary to prevent a gross injustice, such condition would require an exception to this general rule, and sections 105-619 and 105-621 should be applied. Construing these two sections together and giving proper effect to each to the end that justice may be done, we do not think the court erred in granting the motion and in entering the final decree herein; since the real issues between the parties at the trial were not altered and no surprise or injustice has or can result therefrom, and the only result of a reversal of the case would be the delay and expense of another trial; the evidence being practically conclusive as to the right of appellee to have the mistake in his contract corrected and to have its performance, as corrected, decreed. Even if the trial court had erred in sustaining the motion to amend, we would be required to hold, under the facts shown by this record, that the appellant was not prejudiced thereby, and that such nonprejudicial error was not a proper ground for reversal of this cause. Current et al. v. Citizens’ Bank of Aztec, 16 N. M. 642, 120 P. 307; In Re Englehart’s Estate, 17 N. M. 299, 128 P. 67, 45 L. R. A. (N. S.) 237, Ann. Cas. 1915A, 54; Trauer v. Meyers, 19 N. M. 490, 147 P. 458; State Trust & Savings Bank v. Hermosa Land & Cattle Co., 30 N. M. 566, 240 P. 469; Martin v. Village of Hot Springs, 34 N. M. 411, 282 P. 273.
The appellant presents in his brief, as points 2 and 3, the question of the sufficiency of the evidence to sustain the judgment and the question as to whether it would be equitable to enforce the contract. We have examined the evidence in this case carefully, and are of the opinion that the findings of the trial court were not against the weight of the evidence, and were amply sustained thereby.
We recognize the doctrine that a court of equity will not enforce and should not enforce a contract which is unfair, unequal, and unjust, nor one, the performance of which would be in any way unconscionable. However valid or legal a contract may be in its execution, he who comes into a court of equity asking its enforcement and seeking equity must at all times be willing to do equity. It is a fundamental doctrine of equitable jurisprudence that it will use its extraordinary powers only to the end that justice may be done in each individual case presented, and in the exercise of this prerogative, it naturally would refuse to compel the specific performance of a contract, however legal, which was oppressive, unjust, or one-sided, or harsh, showing that one of the contracting parties had taken' advantage of the position of the other to drive a harsh and oppressive bargain, and in such case would refuse to enforce it; but an examination of the evidence in this case does not convince the court that the contract here sought to be enforced is so oppressive, unjust, or inequitable as between the parties as to justify this court in saying that for this reason the trial court erred in decreeing its performance.
We therefore conclude that the judgment of the trial court herein should be affirmed, and it is so ordered.
BICKLEY, O. J., and WATSON, SADLER, and HUDSPETH, JJ„ concur. | [
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SADLER, J.
This is an original proceeding in this court for writ of prohibition directed to Milton J. Helmick, as Judge of the district court of Bernalillo county, J. S. Brown Mercantile Company, Oudabac & Co., and George Potteiger, as respondents, to restrain respondents from further proceeding in a certain. cause pending in the district court of said county. Upon the filing of the petition herein, the alternative writ was issued, and now, after the filing of briefs and the presentation of arguments, the matter is before us for final disposition.
The facts out of which the proceeding arises, as disclosed by the petition for prohibition and returns thereto, are these: In a suit distinct from that in which proceedings are sought to be restrained by prohibition, one Charles A. Mozley, as plaintiff, recovered personal judgment against George Potteiger, as defendant, with foreclosure of a mechanic’s lien on lot 2 in block 8 of the Alvarado addition to the city of Albuquerque. This judgment was signed and entered on August 31, 1931. It authorized immediate execution upon the money award contained therein, allowed $50 as attorney’s fees to plaintiff for services of his attorney in foreclosing the mechanic's lien, and in accordance with the statute applicable, section 1 of chapter 149, New Mexico Session Laws of 1931, contained a stay order against the sale under the foreclosure for the period of sixty days from entry of the judgment.
On October 1, 1931, more than thirty days after entry of the "aforesaid judgment, the defendant filed a motion in the cause to set aside said judgment, urging in support thereof, among other things, that the court had improperly rendered personal judgment for attorney’s fees; that the warrant for immediate execution on the personal judgment of which plaintiff was seeking to avail himself by a levy on certain personal property of defendant was wholly inconsistent with, and contradictory to, the sixty-day stay order upon the sale under foreclosure contained in the same judgment.
After hearing on the motion, and on October 8, 1931, the court, upon the ground that the claimed irreconcilable and contradictory provisions in the judgment constituted an irregularity, entered its order vacating said judgment “for the purpose of entering a correct decree herein,” and as a part of the same order recalled the execution issued upon said judgment, and declared the same void.
Thereupon the plaintiff Mozley prayed and was granted an appeal to the Supreme Oourt from the order setting aside said judgment, with supersedeas in the sum of $800, which was furnished, the appeal order being conditioned that plaintiff, after filing supersedeas, mig-ht proceed with his execution theretofore, levied. The appeal was duly prosecuted in this court, and our decision in the cause entitled Mozley v. Potteiger, 37 N. M. 91, 18 P. (2d) 1021, is handed down contemporaneously with this opinion.
The foregoing recitals portray the status of the suit of Mozley v. Potteiger, with one possible exception, at the time of the institution of the suit in which proceedings are herein sought to be prohibited. The possible exception mentioned is this: Presumably the plaintiff Mozley, through his attorney, was proceeding to advertise an execution sale of the property levied upon as aforesaid. Thereupon Potteiger, the defendant in the above-mentioned suit, joined by J. g. Brown Mercantile Company and Oudabac & Co., as coplaintiffs, instituted a separate suit in the district court of Bernalillo county against said Charles A. Mozley, Joseph Gill, as his attorney and claimed assignee, and Eelipe Zamora, as sheriff of said county, seeking an injunction to restrain the execution sale about to be held under the authority of the judgment entered in the suit first above mentioned. As a predicate for the relief prayed, the judgment in said suit was attacked upon substantially the same grounds urged in support of the motion to set the same aside as above recited. In addition thereto, it was alleged that certain personal property with title reserved to Oudabac & Co. under conditional sales contract, and certain other personal property upon which J. S. Brown Mercantile Company claimed a lien under chattel mortgage, both the conditional sales contract and the chattel mortgage assertedly being duly filed with the county clerk of said county, had been seized under the writ of execution by the sheriff of said county, and that such officer was about to expose said property for sale and sell the same in violation of the rights of the holders under such instrumenta As a further basis for equitable relief, it was asserted that the execution -had been levied upon certain real estate, ownership not fixed, but including the lot against which the mechanic’s lien had been foreclosed in the first suit, and that a cloud thus was threatened upon the title to'said real estate.
As above noted, the plaintiffs prayed that the decree entered in the first suit be declared null and void; or, in the alternative, that the court recall and cancel said execution, and that defendants be restrained from proceeding further thereunder.
Upon the filing of such complaint, the court issued an order to’ show cause against the defendants named therein. The defendants appeared and demurred to the complaint upon grounds, among others, that the judgment sought to be vacated" was impervious to collateral attack, and because an appeal had been taken to this court from the order vacating said judgment. The trial court pending hearing on the demurrer, and evidently in the hope that the parties might come to an, amicable settlement without a hearing, by various interlocutory orders postponed the execution sale from time to time, the last postponement being to November 30, 1931. Prior to the hour of sale and on the last-mentioned date, prohibition was applied for in this court and the alternative writ issued as hereinabove shown.
The sole question for determination by us is whether the district court of Bernalillo county was proceeding within its jurisdic tion in entertaining and hearing the plaintiffs’ complaint for injunction in the last-mentioned suit. If it was, then we are powerless to restrain it by prohibition. If it was not, we will, upon a proper showing, issue the writ.
In resolving this question, we are confronted with a peculiar situation, in this: Potteiger, one of the coplaintiffs in the second suit, is the judgment defendant in the first suit now pending here on appeal. A serious question arises', viz., whether, as to Potteiger, the district court of Bernalillo county was not by virtue of the appeal .divested of all jurisdiction touching the issues in that cause which as a coplaintiff he seeks again to raise in the second suit. See Floersheim v. Board of Commissioners of Harding County, 28 N. M. 330, 212 P. 451; Crabtree v. Board of County Commissioners (N. M.) 18 P.(2d) 657, just decided. In fact, for the purposes of this opinion, we shall assume that, were the second suit prosecuted solely by him as plaintiff, the district court would be without jurisdiction to entertain it. This still leaves for determination the jurisdiction of the district court to entertain the suit at the instance of Potteiger’s coplaintiffs.
Overlooking for present considerations the obviously improper joinder of parties and causes of action disclosed by said complaint, which point is not raised by the demurrer filed thereto, we think there can be no doubt of the district court’s power to entertain a suit for injunction at the instance of .plaintiffs, J. S. Brown Mercantile Company and Cudabac & Co., to restrain the sale of property claimed to belong to plaintiffs, yet levied upon and about to be sold as the property of Potteiger. These two plaintiffs were not parties to the other suit, and are not bound by the judgment rendered therein.
We speak here of jurisdiction only in the broad sense of the court’s power to entertain and hear a suit of this kind. We intimate no opinion on whether a sufficient showing for equitable relief has or can be made since the question is not before us. It is the function of the trial court to determine that very question. We merely hold that it has such power.
Then does Potteiger’s joinder in the complaint deny or divest a jurisdiction concededly existing when the complaint is viewed as that of the other two plaintiffs? We think not. Indeed, the two remaining plaintiffs and their causes of action are improperly joined. We cannot say at what stage the misjoinder of Potteiger, or even the misjoinder and improper intermingling of the causes of action of his two coplaintiffs', may be suggested and cured. If not objected to it will, of course, be waived. The relief asked by all is identical, and the court has jurisdiction to determine the right to it as to two of the parties. No step thus far taken is outside the jurisdiction the court is entitled to exercise under the complaint treated as the pleading of Potteiger’s coplaintiffs.
Attributing regularity to the acts of the ■trial court, as we must unless the. contrary appears, it will be assumed, that it is exercising tbe jurisdiction invoked by the state of facts set up by Potteiger’s eoplaintiffs. Any benefit Potteiger may receive from relief awarded bis eoplaintiffs within the jurisdiction invoked as to them is simply an unavoidable incident of the fact that all seek identical relief. It must be attributed to this circumstance as .against the view that the court is attempting to exercise a jurisdiction not possessed, invoked by him.
If in the further progress of the case the interests of the parties should become so segregated that the court is called upon to award relief peculiar to him against the judgment and execution assailed, it is to be presumed the trial court will note the want of its jurisdiction in the premises.
The true rule governing our power to issue the writ of prohibition is laid down in Gilmore v. District Court of Fifth Judicial District, 35 N. M. 157, 291 P. 295, 297, in which the earlier cases are cited and discussed, as follows: “If the inferior court or tribunal has jurisdiction of both the subject matter and of the person where necessary, the writ of prohibition will not issue, but lacking such jurisdiction the writ will issue as a matter of right.”
The trial court, as we have held, has jurisdiction of the subject-matter as to all parties save Potteiger. No question is raised as to proper jurisdiction of the person of any party essential to a determination of the issues raised by Potteiger’s eoplaintiffs. Hence we conclude the restraint laid upon the district court by the. issuance of alternative writ should be lifted, the writ recalled, and the petition dismissed at the cost of petitioners. It is so ordered.
WATSON, C. J., and BIOKLEY, J., concur.
HUDSPETH, J., concurs in the result.
ZINN, J., did not participate.
Z^ N. M. 80. | [
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WATSON, Ohief Justice.
In disposing of this case [37 N. M. 24, 16 P.(2d) 933], we overlooked an. application for counsel fees made by appellant. Our power to make such allowance is challenged.
The statute (1929 Comp. St. § 68-506) does not expressly cover the present situation.
We have held that on an appeal in a divorce case we have inherent power to allow the wife suit money to enable her to present her case. Taylor v. Taylor, 19 N. M. 383, 142 P. 1129, L. R. A. 1915A, 1044. And we have held that, after the taking of an appeal and before the lodging of the transcript here, the trial court may make an allowance for such purpose. Oldham v. Oldham, 28 N. M. 163, 208 P. 886.
This allowance to the wife is founded upon the husband’s legal obligation to furnish necessaries, upon his control of the community purse, and upon the statutory policy that, in the trial court at least, the wife shall have the means for “efficient preparation and presentation of her case.”
In a number of jurisdictions it is thought that these considerations disappear with the absolute divorce, and that neither such a statute as ours, nor any inherent power of the court, permits such an allowance as is here prayed; the 'parties being strangers, and the proceeding not differing from an ordinary suit for money damages. Winchester v. Winchester, 138 Md. 95, 113 A. 584, 14 A. L. R. 609, citing Maryland and New York decisions; Barish v. Barish, 190 Iowa, 493, 180 N. W. 724, followed in Nicolls v. Nicolls, 211 Iowa, 1193, 235 N. W. 288; and other cases taking this view collected in the A. L. R. annotation of the first-mentioned case.'
It seems to us that this is a somewhat illiberal view. It is true that the parties are no longer husband and wife, and that the community has been dissolved. True, the husband’s general obligation to furnish necessities has ceased. But some of the incidents of the former relation subsist. The parental duties cannot be dissolved. By the judgment, the duty to support the wife has been continued to the extent of the alimony awarded. And that award, by express reservation in the judgment, is not necessarily a final disposition of the matter. With changed circumstances, either party may- seek a modification of it. That is but to renew the original litigation. The policy which insists that the wife have counsel when her marital status and support are involved originally would seem to require the same protection when the latter is again jeopardized.
I consider, therefore, that the statute referred to, in its spirit, if not according to its letter, applies to a case like this. ‘ The distinction based on thei dissolution of the marital relation being rejected, this court has the same inherent power as in the divorce case. Numerous courts exercise the power, as appears from the A. L. R. annotation above referred to. Some distinctions are noted; such as that between the husband’s application for a decrease, and the wife’s application for an increase, of the alimony; between a meritorious application and one without merit; between one successful and one unsuccessful. These distinctions will be borne in mind when exercising the discretion, but are not important, we think, in determining whether the power exists.
We are of the opinion that the present case warrants an allowance of $100 to appellant as counsel fees on this appeal; such sum to be taxed as costs. Our original judgment will be modified accordingly.
SADLER, HUDSPETH, BICKLEY, and .ZINN, JJ., concur. | [
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NEAL, J.
This- action originated in the justice of the peace court, Precinct No. 3, Dona Ana county; appellee filing its complaint therein against appellant, and attaching thereto its verified account.
The case was tried de novo in the district court, and resulted in a judgment in favor of appellee. It appears that the appellant (defendant) made no formal plea or answer to the complaint filed, but did appear in the district court and contest the right of appellee to a judgment. Under our Code no written pleadings are required in the justice of the peace court, section 79-308, Compilation of 1929, and as to the defendant, the general issue will he considered in by law. Crolot v. Maloy, 2 N. M. 198.
Appellant presents error in the admission of certain ledger sheets in proof of account between appellee and appellant, but in tbe view we take of tbis case, we do not tbink it necessary to determine this question, since we feel that there is ample evidence in the record to sustain the judgment of the court upon the theory of an account stated.
The fourth finding of fact made by the court is: “That many statements showing balance due and unpaid, to-wit, the sum of $175.19 were mailed to and personally delivered to the defendant, Y. E. Roybal, at various times, and no denial made of the correctness of said statements, but on the other hand, defendant admitted to'A. D. Saunders and L. E. Strand that same was correct and that he owed the plaintiff $175.19 as of April 30th, 1927.”
This finding was not excepted to by the appellant, and an examination of the record shows that appellant made no objections to the testimony introduced by appellee tending to sustain this finding. Appellant, however, contends here that' the court should not have based its judgment on the theory of an account stated, because the complaint in the case was upon an open account for goods sold and delivered. We do not think that he can raise this question for the first time here on appeal. The evidence pertaining thereto was received by the court as above stated without objection. The finding of the court relative thereto was not objected to, and no exception was taken to the finding. It seems that this issue as to an account stated was as fully litigated as if it had been pleaded, and in such a case this court will deem the complaint' amended to cover the proof and support the judgment and findings of the court. Nikolich v. Slovenska, etc., 33 N. M. 64, 260 P. 849; Cannon v. First Natl. Bank of Amarillo, Tex., 35 N. M. 193, 291 P. 924; Girard v. Girard, 35 N. M. 147, 291 P. 287.
In view of this conclusion the other questions presented by counsel for appellant in his brief appear unnecessary to be considered.
We therefore conclude that'the judgment in this cause should be affirmed, and it is so ordered.
BICKLEY, C. J., and WATSON, SADLER, and HUDSPETH, JJ., concur. | [
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ZINN, Justice.
On August 25, 1932,. the appellant, having been charged by information with the crime of robbery while armed with a dangerous weapon, was found guilty and sentenced to the penitentiary for a term of three years, from which judgment and sentence appellant appeals.
Two errors are alleged, the first being that the information charged the ownership of the money stolen to be that of “Charlie Pulliam” and the whisky to be that of “W. M. Wilcox,” whereas the proof adduced at the trial showed that the money and whisky were owned by Charlie Pulliam, W. M. Wilcox, and others.
1929 Comp. St. § 35-701 does not require that ownership of the property which is taken by one while armed with a deadly weapon shall be in the person from whom taken. This statute makes it a crime to steal, while armed with a deadly weapon, property in the possession of another. The statute says nothing about ownership; and the crime can be committed if the property stolen is in the hands of a bailee, agent, servant, or any other person in possession. The gist of the crime is the larceny while armed with a deadly weapon. Charlie Pulliam and W. M. Wilcox had an interest in the ■whole, and were in joint possession with their co-owners at the time of the larceny, and there was no variance between the information and proof.
The second error charged by appellant is in the refusal of th'e trial court to admit hearsay testimony. There is nothing in the record to bring us to any conclusion that the offered testimony was within any known exception. Appellant contends that, if the real purpose back of the offer of the excluded testimony were known, the court would have admitted the same. It does not appear that the trii\l court was informed of the real purpose, if any real legal purpose appears.
We see no merit in either contention of appellant, and the judgment of the district court was correct and should be affirmed. It is so ordered.
WATSON, C. J., and SADDER, HUDSPETH, and BICKDEX, JJ„ concur. | [
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BICKLEY, Justice.
The Atchison, .Topeka & Santa Fé Railway Company discharged its regular agents at the stations of Dona Ana and Capulin, and substituted therefor immediately what is known as “resident agents.” These resident agents perform practically all of the duties of a regular agent, other than telegraph work and accounting; that is to say, it is necessary for the parties who order shipments into thesé stations to have the freight thereon prepaid, and, in sending them out, the shipments are sent “freight collect.” There was no change in railway express service at these points, and the Western Union Telegraph business is of practically no importance. No authority to make this change in service was requested of the State Corporation Commission under chapter 26 of the Laws of 1929. Upon learning of these changes without such authority, the State Corporation Commission issued an order upon the railway company to show cause why it should not proceed in accordance with said chapter 26 before discontinuing its agents. Hearing was had upon the order to show eause, and the commission by its order di Tected the railway company and the Western Union Telegraph Company to re-establish regular agents with assigned hours at said stations, “and continue such agents until such time as they take the proper steps, as provided by law, to have the same heard and determined whether it is a burden upon the carriers to maintain such an agency.”
The railway company answered, and respondents appeared in response to the citations and asserted that chapter 26, Laws 1929, is void and of no effect by reason of being inconsistent with and in conflict with the provisions of sections 7 and 8 of article 11 of the Constitution of New Mexico. It is claimed that the provisions of chapter 26, Laws 1929, deny to the railway company:
“(a) The Constitutional right to have the Supreme Court decide the question of adequate agents and station facilities on its merits.
“(b) The Constitutional right of not having placed upon it the burden of proof at all hearings relative to adequate agents and station facilities.
“(e) The Constitutional right of managing its own business, as to providing agents and station facilities, subject only to the right of the Commission, with the concurrence of the Supreme Court — if requested — upon due notice and hearing, to require railroads to provide and maintain adequate agents and facilities.
“(d) Said Chapter 26 of the Laws of 1929 contravenes the provisions of the Constitution of the State of New Mexico, providing that on the question of adequate agents and station facilities the Supreme Court of~the State shall be the final arbitrator, and shall have power to enforce its orders in such matters by fine, forfeiture, mandamus, injunction, contempt or other appropriate proceedings, whereas, said Chapter 26 denies all of such Constitutional proceedings, except by fine only.”
The respondent railway company offered some evidence to show that the agency had not been discontinued, but the character of the service had merely been changed, and a witness adverted to the fact that the company would not be justified by the business in keeping a regular agent when the following occurred:
“Commissioner Baca: I guess this is a case only of jurisdiction before the Commission, and not whether that station will pay or not, don’t you think so. I don’t know if that testimony is material.
“Mr. Reid: It is just a question of jurisdiction?
“Commissioner Baca: I think so. It is a matter for the Commission to determine at the time of your application whether that justifies the agent or not.
“Mr. Reid: I think you are right about that. I can see the Commission is not prepared to show anything to the contrary.
“Commissioner Baca: No.
“Mr. Reid: Then we will just close our case and submit it.”
The commission introduced no evidence except a printed list of “Open and Prepay Sta tions” showing stations having agents in charge and stations to which freight charges must be prepaid. As to the stations in question, the following note appeared therein: “No Agent. Freight must be prepaid.”
At the close of the hearing, the following order was entered by the Commission: “It is therefore hereby ordered that the Atchison, Topeka and Santa Fe Railway Company, Railway Express Agency, Inc. and Western Union Telegraph Company, on or before ten days from the date of this order, re-establish regular agents with assigned hours at Dona Ana and Capulín, New Mexico, and continue such agents until such time as they take the proper steps as provided by law to have the same heard and determined whether it is a burden upon the carriers to maintain such agencies.” The words we have italicized doubtless refer to chapter 26 L. ’29.
It is apparent that the situation is quite similar to that existing in the case of State Corporation Commission v. A., T. & S. F. R. Co., 32 N. M. 304, 255 P. 394, where we decided: “A station agency, not established toy order of the State Corporation Commission, may be discontinued by a railroad company without permission of the commission; and an order of the commission that the agency be re-established is unenforceable, if based on the failure to obtain permission to discontinue it, and not upon a showing that the public interest reasonably and justly demands the service.”
Our conclusion is controlled by that decision, unless the controlling principles therein announced have been abrogated by chapter 26, Laws 1929, the material parts of which are as follows:
“Section 1. That hereafter no railway, transportation or transmission company shall discontinue any railway station, agency or agent at any railway station in this State without first submitting to the State Corporation Commission a petition alleging that such, station or agency or agent is no longer a necessary facility for the accommodation of passengers, and for receiving freight and express, and constitutes an unnecessary burden and expense upon such railway, transportation or transmission company, and praying for an order of the State Corporation Commission permitting the discontinuance of said station, agency or agent. That such station, agency, or agent shall not be discontinued until a hearing shall be held by the State Corporation Commission and an order of said commission entered authorizing the discontinuance of such station, agency or agent.
“Sec. 2. That within 60 days from the date of the filing of said petition, a hearing shall toe held by the State Corporation Commission after due notice to the said petitioner and all other parties concerned, and at the said hearihg the burden of proof to sustain the right to discontinue said station, agency or agent shall be upon the said petitioner to establish by substantial evidence.
“Sec. 3. That any railway, transportation or transmission company violating provisions of this act shall be guilty of a misdemeanor and shall be fined in a sum of not to exceed $1,000 and not less than $500.00.”
The answer to this question depends upon the constitutionality of said statute, and this is to he determined by a consideration of the nature and scope of the powers of the commission.
We will be required to determine whether the grant of power to the commission is exclusive as to the present subject-matter, or whether there may be discovered a reserve power in the Legislature.
That the power of the commonwealth exists to regulate the business of common carriers and transmission companies, adverted to in the Constitution, we assume. That within constitutional limits this power of regulation is a proper function of the Legislature is also conceded. A glance at territorial statutes shows that regulation was pursued by the Legislature. The Constitutional Convention dealing with the subject set up a commission with unusual functions. Article 11 vests in the commission paramount authority to make decisions relative to questions given to it therein, subject to review and enforcement on removal to the Supreme Court. While it seems somewhat patterned after certain provisions of the Virginia and Oklahoma Constitutions, there is a difference, in that in those ’ Constitutions “The authority of the commission (subject to review on appeal) to prescribe rates, charges, and classifications of traffic, for transportation qnd transmission companies, shall be paramount; but its authority to prescribe any other rules, regulations, or requirements for corporations or other persons, shall be subject to the superior authority of the Legislature to legislate thereon by general laws.”
This provision in those Constitutions clearly reserves to the legislative department a power of regulation. This is not true of the New Mexico Constitution. We do not discover any provision for a paramount authority in the commission or in the Legislature as to any matter in which both may exercise power, and yet there should be paramount or exclusive authority in the one or the other if harmony and symmetry are desired and had in the exercise of the power “to require railway companies to provide and maintain adequate depots, stock pens, station buildings, agents, and facilities for the accommodation of passengers and for receiving and delivering freight and express.”
Our article 11 in many respects and particularly as to the extent and nature of the power vested in the commission is more like article 15 of the Arizona Constitution. W'e find very enlightening the comments made on the Arizona Constitution, by Mr. Justice Ross in State v. Tucson Gas, Electric Light & Power Company, 15 Ariz. 294, 138 P. 781, 784.
We quote some of the provisions of section 7 of article 11, portions of which are italicized for emphasis: “The commission shall have power and be charged mth the duty of fixing, determining, supervising, regulating and controlling all charges and rates of railway, express, telegraph, telephone, sleeping-car, and other transportation and transmission companies and common carriers within the state; to require railway companies to provide and maintain adequate depots, stock-pens, station buildings, agents and facilities for the accommodation of passengers and for receiving and delivering freight and express; and to provide and maintain necessary crossings, culverts and sidings upon and alongside of their roadbeds, whenever in the judgment of the commission the public interests demand, and as may be reasonable and just. The commission shall also have power and be charged with the duty to make and enforce reasonable and just rules requiring the supplying of cars and equipment for the use of shippers and passengers. * * * The commission shall have power to change or alter such rates, to change, alter or amend its orders, rules, regulations or determinations, and to enforce the same m the manner prescribed hei-ein; * * * and it shall have power, upon a hearing, to determine and decide any question given to it herein. *' * * ”
Section 8 is as follows: “The commission shall determine no question or issue any order in relation to the matters specified in the preceding section, until after a public hearing held upon ten days’ notice to the parties concerned, except in case of default after such notice.”
Section 4 provides: “The commission shall prescribe its own rules of order and procedure, except so far as specified in this constitution.”
“The expression of one thing is the exclusion of another.” “Broom, in his Legal Maxims, says that no maxim of the law is of more general and uniform application; and it is never more applicable than in the construction and interpretation of statutes. Whenever a statute limits a thing to be done in a particular form, it necessarily includes in itself a negative, viz., that the thing shall not be done otherwise.” 19 Oyc. 23.
We think this maxim has a special application here. If the Constitution had intended that the legislative department should pervade the field so to be occupied by the Commission, it has failed to so indicate unless by the provisions hereafter to be noticed.
If power existed in the Legislature to share in this authority, it would carry with it necessarily power to supplant, in a measure at least, the functions of the commission, for the power once conceded, it would be unlimited, unless we were required to hold that the power of the commission, though not exclusive, is paramount. Or, if the commission may be and is “charged with the duty * * to require railway companies to provide and maintain * * * facilities for the accommodation of passengers and for receiving and delivering freight and express,” and the Legislature may do the same thing, then the transportation and transmission companies named in this article would be placed in the embarrassing dilemma of trying to follow the rules and regulations pertaining to this public service of two supervising authorities, an impossibility where such rules and regulations differ. In the latter case, conflict of authority and power would exist, and confusion and uncertainty would result in the administration of the law.
“The commission shall have power and be charged with the duty * * * to require railway companies to provide -and maintain adequate * * * agents and facilities for the accommodation' of passengers and for receiving and delivering freight and express.”
This language is not merely directory, but mandatory, and, unless and where the Constitution may in other places give the power to the Legislature to prescribe rules and regulations governing the matter, vests the exclusive power to do so in the commission. Where the Constitution has said that the commission has the power and is charged with the duty to require a common carrier to do a certain thing, it is the last, the highest, and controlling fundamental law as to that matter. No act of the Legislature, for it must proceed in accordance with the terms of the Constitution, can exercise the power, or place it elsewhere.
It was clearly the policy of the framers of the Constitution, and the people in adopting it, to take the powers of regulation of common carriers in certain respects from the legislative branch and vest them in the commission, whose powers and jurisdiction are sui generis, and whose functions in the aggregate necessarily comprehend those which ordinarily are separately vested in the legislative, judicial, and executive departments of the government, respectively. See State Corp. Comm. v. A., T. & S. P. R. Co., supra. Prom this fixed, definite, and certain policy, as found in the Constitution, of imposing such powers and duties upon the commission, there arises an inhibition against, their exercise by the Legislature as insuperable as if expressly prohibited to it. Pursuing this line of argument, the Arizona Supreme Court, in State v. Tucson Gas, Electric Light & Power Co., supra, said: “Beatty, Chief Justice, in State v. Hallock, 14 Nev. 202, 205, 33 Am. Rep. 559, 561, in discussing constitutional policy and prohibition by implication, said: ‘It is true that the Constitution does not expressly inhibit the power which the Legislature has assumed to exercise, but an express inhibition is not necessary. The affirmation of a distinct policy upon any specific point in a state Constitution implies the negation of any power in the Legislature to establish a different policy. “Every positive direction contains an implication against anything contrary to it which would frustrate or disappoint the purpose of that provision. The frame of the government, the grant of legislative power itself, the organization of the executive authority, the erection of the principal courts of justice, create implied limitations upon the lawmaking authority as strong as though a negative was expressed in each instance.” People v. Draper, 15 N. T. 544. The presumption is always that the positive provisions of a Constitution are mandatory and not merely directory (Cooley’s Const. Lim. 78, 79), and there is nothing to overthrow this presumption with respect to the provisions under discussion.’ ”
In order that the commission might act intelligently, justly, and fairly by the trans portation and transmission corporations and the general -public, it is provided in the Constitution that the commission shall be permanent ; that the terms of office of the respective commissioners shall not expire at one time; that officers, agents, and employees of transportation and transmission companies, while representing such companies, and persons financially interested therein, are disqualified from holding office as a member of the commission, or from performing any of the duties thereof, and no commissioner shall he qualified to act upon any matter pending before the commission, in which he is interested, either as principal, agent, or attorney. There are no such restrictions upon holding the office of member of the Legislature. The commission is given power to appoint and remove its clerk, and such other officers, assistants, and subordinates as may be prescribed by law. The Attorney General of the state, or his regularly authorized representative, shall be the attorney for the commission; it is therein declared that the Legislature shall provide suitable quarters for the commission and funds for its lawful expenses, including necessary traveling expenses, witness fees, and mileage, etc.
Article 3 of the New Mexico Constitution provides: “The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial, and no person or .collection of persons charged with the exercise of powers properly belonging to one of these departments, shall exercise any powers properly belonging to either of the others, except as in this constitution otherwise expressly directed or permitted.”
The functions of the commission are not confined to any of the three departments named, but its duties and powers pervade them all (see State Corp. Comm. v. A., T. & S. F. R. Co., supra); hence the provision in article 3 “except as in this constitution otherwise expressly directed or permitted.”
In State v. Tucson Gas, Electric Light & Power Company, supra, the court in the neighboring state of Arizona, considering constitutional provisions similar to our article 11, § 7, said: “Whatever the reasons and influences that may have prompted the framers of the Constitution to endow the Corporation Commission with such extraordinary and unusual powers, it is a well-known fact that there has long existed a deep-rooted dissatisfaction with the results obtained through the Legislatures of the county in their efforts to adjust and regulate rates and classifications between the general public and public service corporations. While the power to control and regulate those matters by the lawmaking body has been frequently upheld, the lack of full information oh the part of the legislator, and inadequacy of time and means of investigation, have tended to foster litigation, with the result of suspending and often of defeating the object aimed at, rather than to secure just and reasonable classifications, rates, charges, and regulations. The unwisdom and impracticability of imposing upon the courts, in the first -instance, this kind of litigation has frequently 'been adverted to by the courts.”
These observations apply with equal force here.
Support is given to the conclusion we here reach, by legislative construction, for by House Joint Resolution No. 35, approved March 11, 1921, there was proposed a constitutional amendment to be known as section 19 of article 11, a portion of which is as follows:
“Sec. 19. The Legislature may by enactment change, alter or enlarge the powers and duties of the State Corporation Commission created by Section 1 of this article for the control and regulation of corporations and may change or alter the provisions for the enforcement of its orders.
“Until the Legislature shall otherwise provide any order made by the commission fixing or changing any charge or rate or relating to any. matter within its authority shall be binding upon the carrier, or company, or person to whom the same is directed and shall be enforced by the Supreme Court according to the terms of such order unless changed or modified by said court on a hearing applied for by such carrier, company or person within a reasonable time limited in such order.
“Upon any hearing or proceeding in any court upon any order issued by the commission within the scope of its authority the -burden of proof shall be upon the earner, company or person to whom such order is directed to show the unreasonableness of any charge or rate fixed or requirement specified in such order and such court may of its own motion and shall upon request of any interested party require or authorize additional evidence.”
The proposed amendment was defeated at the 1922 general election by a vote of 16,-806 “For” and 23,644 “Against.”
There is a reservation of power in the Legislature manifested in section 13 of article 11 as to corporations, generally, as follows: “The- legislature shall provide for the organisation of corporations by general law. All laws relating to corporations may be altered, amended or repealed by the legislature, at any time, when necessary for the public good and general welfare, and all corporations, doing business in this state, may, as to such business, be regulated, limited or restrained by laws not in conflict with the constitution of the United States or of this constitution.” See Melaven v. Schmidt, 34 N. M. 443, 283 P. 900. The provisions of this section apply to all corporations, and doubtless include those doing a transportation or transmission business. But, as to the business of these latter, the power to regulate reserved to the Legislature must relate to some phase of such business not pertaining to the power “to require railway companies to provide and maintain adequate * * * agents and facilities for the accommodation of passengers and for receiving and delivering freight and express,” which power or regulation is reposed in the commission. This is also true as to reservation of power in the Legislature contained in section 6 of article 11, relative to rules and regulations pertaining to the issuance of charters and amendments and extensions thereof, and forms of reports required to be made by corporations.
From all of the foregoing, we conclude that the people by their Constitution have said, in plain and unequivocal language, that “the Commission shall prescribe its own rules of order and procedure, except so far as specified in this constitution,” and, failing to find it therein specified that the Legislature may make rules of procedure as to hearings, “to determine and decide any question given to it herein” (section 7), we conclude that this power is granted exclusively to the commission, and is not to be exercised by the Legislature.
It follows that chapter 26, Laws 1929, in so far as it purports to provide a rule of procedure for such hearings by the commission, offends the Constitution and is therefore void. As to whether, in view of the foregoing, the act might stand in its attempt to create a misdemeanor, we have grave doubts, but that issue, not being before us, is not decided. We have not attempted to differentiate between authority as x-elated to the various respondents in this case. The Constitution, article 11, § 7, dealing as to service, seems to apply to railroad companies only. In re Wallace Transfer Company, 35 N. M. 652, 6 P.(2d) 199. Whether chapter 26, Laws 1929, is intended to be broader in scope so as to affect transportation and transmission companies other than railroads, we do not decide.
The order in the case at bar was made upon the theory that the respondents had no right to change or discontinue the agency service at Dona Ana and Capulín, without justifying its action to the commission and obtaining its order of approval, as required by chapter 26, Laws 1929. No claim is made by the Commission that the oi’der is based upon any other theory or determination.
For the reasons stated, we must decline to enforce the ox’der of the commission in the case at bar. It is so ordered.
WATSON, O. J., and SADLER, HUDSPETH, and ZINN, JJ., concur. | [
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WATSON, J.
American Insurance Union, a fraternal benefit society, suffered judgment on a certificate providing for a death benefit. It appeals.
In the application for the insurance, the insured answered that she was not pregnant. She was in fact then pregnant, and her death occurred from cerebral embolism at the ensuing childbirth. This is the defense.
The trial court found that the insured did not know herself to be pregnant when she made the application, or at any time before delivery of the certificate. It found also that appellant relied on the answer, had no knowledge of its incorrectness until after the death of the insured, and would not have issued the certificate otherwise.
The certificate recites, as consideration for its issuance, a warranty that every answer in the application “is full, complete and true, and. * * * that they are the only statements and answers upon which the contract is made.” This is pursuant to the same language in the application signed by the insured, which also contains this: “It is understood and agreed between the applicant and his beneficiaries and the American Insurance Union, that this application for membership consisting of Parts One and Two and the covenants and warranties recorded therein are made for the purpose of inducing the American Insurance Union to receive me into beneficial membership in said Society and should any of said covenants and warranties made be false or untrue in any particular then the policy issued in consequence of this application for membership shall be null and void and said Society shall not be liable to me or my beneficiary or beneficiaries thereunder.”
Here is a plain contract warranting non-pregnancy of the insured and staking the validity of the contract on such warranty. The materiality of the warranty cannot be doubted under the stipulation and findings. How can we escape enforcing it?
It is the general rule, as we understand, that a false warranty as to health or physical condition, though not intentionally false, will defeat recovery, particularly if material to the risk. 45 C. J. 81. This rule has been modified by statute; in most states as to ordinary insurance, in some as to fraternal benefit insurance. The familiar statute does not really change the rule of law. Exercising the state’s regulatory power over business charged with a public interest, it requires the insurer to stipulate in its contract that statements not fraudulently made will be deemed representations. It requires that no statement be deemed a part of the contract unless incorporated in a written application and unless a copy thereof be indorsed on or attached to the policy. Comp. St. 1929, § 71-161 (2), (4).
But, on principles of distinction recently considered in Bloodgood v. Woman’s Benefit Association, 36 N. M. 228, 13 P.(2d) 412, our legislative policy as to fraternal benefit insurance is different. It is “regulated and controlled” by a special statute. Comp. St. 1929, § 71-301 et seq. It is exempted “from all provisions of the insurance laws.” Id. § 71-304. The right to contract as to such insur anee is differently modified. As to warranties and representations, such right is left free. Where the insurance law is unfavorable to making the application a part of the contract, the fraternal benefit law requires incorporation in the certificate of a provision that the application and medical examination shall be a part of the contract, as well as the charter, the constitution, and laws of the society and amendments thereto. Id. § 71-308. It must be plain that the Legislature considered the two kinds of insurance so different in organization and working as to require regulation on different principles and in different particulars.
Thus far our conclusion is in accord with the views of the learned trial judge; he having announced that, if the case were governed by the provisions of Comp. St. 1929, c. 71, art. 3, appellant’s defense would be good. He held, however, that that article, being Laws 1921, c. 197, had been repealed by Comp. St. 1929, c. 71, art. 1, being Laws 1925, e. 135. Applying the provisions of article 1, and particularly of section 71-161 (2), (4), he concluded that, since the statement of non-pregnancy was not fraudulently made, it was a representation rather than a warranty, and that, since no copy of the application was attached to or indorsed on the certificate, the latter constituted the entire contract.
This holding is based upon a very peculiar repealer, reading as follows: “All laws or parts of laws relating to the subject of insurance now existing in the state of New Mexico are hereby repealed, except section sixty-four, chapter XCIII, Session Laws of 1923, being ‘An act to provide for the incorporation and organization of mutual domestic fire, hail and tornado insurance companiesand section seventy-seven, chapter LXXXIII, laws, of 1917, being ‘An act providing for compensation of workmen engaged in certain occupations, and, in case of death, their dependent families, for personal injuries sustained' in the course of employment such workmen, and establishing liability of employers on-account thereof, and requiring security for payment, and providing legal proceeding for the recovery of the same;’ and section seventeen thereof as amended and re-enacted by chapter OLXXXIV in 1921; and sedtion eighteen thereof as amended and re-enacted by chapter OLXXXIV in 1920; and section seventy-nine, chapter XLIII, laws of 1921, being ‘An act providing for the issuance of certificates for the payment of sick, death or annuity benefits upon the lives of children between the-ages of one and eighteen years, by fraternal beneficiary associations;’ and section eighty, chapter OXCVII, laws of 1921, being ‘An act. for the regulating and control of fraternal benefit societies.’ ” Comp. St. 1929, § 71-176.
Laws 1923, c. 93, contains twenty-four sections and no section 64; Laws 1917, c. 83, twenty-four sections and no section 77; Laws-1921, c. 43, five sections and no section 79;. Laws 1921, c. 197, thirty-two sections and no section 80. The sections enumerated being excluded from the repeal of “all laws or parts of laws relating to the subject of insurance, * * * ” and being unable to identify the exceptions, the court held that there had been a total repeal of the act regulating fraternal benefit societies. The same fate would, of course, overtake the acts relating to benefit certificates upon the lives of children, to workmen’s compensation, and to fire, hail, and tornado insurance.
Appellant now brings forward a pamphlet entitled “Insurance Laws of the State of New Mexico, Containing All of the Enactments to Date, Published by State Bank Examiner, Insurance Department, Santa Eé, December, 1923.” This work is arranged in consecutive sections. Section 64 of this compilation includes the whole of Laws 1923, c. 93; section 77, the whole of Laws 1917, c. 83; section 79, the whole of Laws 1921, c. 43 ; section 80, the whole of Laws 1921, e. 197.
Appellant asks that we take judicial notice of this compilation, consider that it explains the otherwise inexplicable section numbers in the repealer, and conclude that the act regulating fraternal benefit societies, the Workmen’s Compensation Act, and the two other acts come within the exception to the repeal of “all laws * * * relating to * * * insurance. * * * ”
Appellee objects that we cannot consider this proposition, since it was not presented in the trial court. The familiar rule invoked by appellee has no application here. The matter ruled on below and here for review is the repeal vel non of the Fraternal Benefit Act, a question of law. We are not here restricted by the scope of the argument below. It would be strange indeed if this court must acquiesce in erroneous statutory construction merely because a controlling consideration was not discovered by counsel in time to avoid the original error.
Appellee also objects that the compilation should not be judicially noticed. We incline to the view that it should be, for such a purpose as this. However, we leave that matter open. We think it well to review the decision as made, upon the face of the repealer. It seems to us to involve an unsound principle of statutory construction.
Assuming it to be impossible to identify the numerous statutory provisions relating to insurance, intended to be preserved, it is the repealer as a whole that fails, not merely the exceptions. Until we have ascertained what the Legislature intended to continue in force, we have not identified what it intended to dispense with. To hold otherwise we must indulge a presumption of repeal. This the courts will not do. To hold all laws relating to insurance repealed, without exception, is manifestly contrary to the legislative purpose, and is an impossible result. If to reject the attempted repealer entirely might to some extent miss the true intent, it would result from the failure of the enacting and repealing authority to express its purpose clearly. If the court must indulge conjecture, it must be in favor of continuance of existing law. Repeals by implication are not favored. In a case of doubt as to the scope of an express repeal, we are necessarily driven to the principles governing implied repeals.
Other considerations argue strongly against a conclusion of repeal. These we shaU not notice, content to rest the matter on what we have said..
Appellee does not concede that the failure, to repeal article 3 is conclusive against the applicability of article 1, § 71-161 (2), (4). But, the earlier act being comprehensive, and expressly providing (section 4 [Comp. St. 1929, §• 71-304]) “ * * * such [fraternal benefit] societies shall be governed by this act, and shall be exempt from all provisions of the insurance laws'of this state, ( *'* *” and it being stipulated that appellee is authorized to do, and is doing, business in this state, under and in accordance with it, we think that the rights of the parties must be settled according to its provisions.
These questions being answered favorably to appellant, the stipulation of counsel and findings of fact are fatal to recovery on this certificate.
The judgment must be reversed. The cause will be remanded, with a direction to give judgment for appellant. It is so ordered.
BICKLET, C. X, and SADLER and HUDS-PETH, JX, concur. | [
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PER curiam:.
Charges of professional misconduct have been here filed against Thomas Y. Truder, district attorney of the Fourth judicial district, and Frank Faircloth, his assistant. The charges have been considered, and the respondents heard in their defense. Judgment is now to be rendered.
The substance of the first charge, involving both respondents, is that, having instituted a voluntary manslaughter prosecution against one Lindsley, growing out of an automobile accident, they accepted employ'ment from the administrator of the deceased and instituted a civil damage action against said Lindsley upon the same facts, and that, as an inducement to a settlement in damages, they offered to dismiss the criminal prosecution.
The substance of the second charge, which involves respondent Truder alone, is that, having instituted a criminal proceeding against one Sulier, he dismissed the same in consideration and upon the condition that said Sulier execute a written release of all claims for damages as against respondent Truder growing out of such prosecution.
Respondents admitted by their answer, and it is an unquestioned fact, that they were pursuing said Lindsley both officially for a criminal offense and in their capacity as private attorneys for civil damages. This fact is not made the basis of the charge of misconduct. Under the theory of the charge, misconduct consists, not in having put themselves in the double position stated, but in that, being so situated, they offered to dismiss the criminal prosecution if there should be a settlement of the civil suit.
Under such theory, the evidence seems to be sufficient as to respondent Faircloth, and insufficient as to respondent Truder. In view of our conclusions, further reference to the facts in dispute will be unnecessary.
It appears from statements by all counsel in the case that it is not unusual practice in this state for district attorneys to engage, as respondents admittedly did here, to prosecute a civil action upon the same facts constituting a criminal action, which they are then prosecuting, or may be called upon to prosecute; that no statute prohibits this practice; that, as generally viewed, sqch double employment, standing alone, while not entirely approved, has not been deemed such misconduct as could lead to disciplinary measures; that, to make a case for disciplinary action, some actual conduct must be shown in addition, violative of the public or private duty of-the attorney. We cannot accede to this view, and, if the practice is so widespread as stated, we feel it our imperative duty to condemn it at this first opportunity.
The incompatibility of public duty and private interest and employment is too plainly illustrated in this case to require discussion. It scarcely aggravates the case to show that one of the respondents actually uttered the suggestion which is implied in the situation itself, that a payment of damages would moderate the vigor or good faith, if not entirely end, the prosecution.
Attorneys are officers of the courts. It is the inherent duty of any court to hold its officers to their duty. The Legislature has not forbidden district attorneys to continue in civil practice. The fact does not affect the case. That is not to deny, it is to assume, the duty of the courts to supervise such civil practice and limit it, to prevent such situations as this, the reproach of which must fall upon the courts themselves and upon the administration of justice. If, for lack of a statute, we should hesitate to stop, or to punish when necessary, such violations of the high standards and the ethics of the legal profession, we should exhibit lack of comprehension of our inherent power and of our highest duty; we should invite legislative aid and interference where such are not required, and may do harm. A court exists for the purpose of doing justice. It cannot perform that function if its ministers are so compromised that they cannot be relied upon to perform their parts with an eye single to the interests they at the time represent. -
These principles are so plain to our minds that it would in a sense detract from their inherent force to seek to bolster them up by authorities easily to be cited.
So we find here a case of serious misconduct, upon admitted facts. It does not greatly matter that it is not independently relied upon by the charge as formulated. It is our duty to take notice of it. If, as we doubt, tech-’ nical rights of respondent Trader entitle him to a new charge and another hearing, we assume that he will waive such rights.
The second charge also is serious. The evidence does not satisfy us, however, that respondent Truder, in dismissing the criminal ease, was induced thereto by the release of any claim of liability in damages for the prosecution, nor that he intended to exact such release as the price or condition of such dismissal. So we do not sustain the charge as laid.
But the admitted fact remains that, substantially coincident with the dismissal, respondent Truder and said Sulier did execute a reciprocal release of claims, expressly including such as might exist on account of the prosecution of the latter by the former. We must condemn this, though we do not find present the intent necessary to sustain the charge as laid. The intent could be known to few; the act by all. The act could not but bring into disrepute the administration of justice. The courts must require of attorneys a higher standard of care to avoid this than respondent Truder observed in this matter.
Mingled with regret in the performance of a painful duty, we have gratification in the prompt performance by the grievance committee of the bar of its equally unpleasant duty. We find it proper also to commend both the Attorney General and the counsel for the respondents for their frankness and fairness in putting the matter before us.
Punishment is hot the only purpose, we do not deem it the main purpose, of this proceeding. Our ends do not require severity in this first case. We do not find it necessary to make nice distinction, where there is so little real difference, in the conduct of the respondents. It is impressed upon us that the practice we here first condemn is not uncommon. Severity to respondents would suggest that others perhaps equally guilty be sought out. and punished. All the good that might thus be accomplished we believe will result from the present admonition. Example is not needed.
Waiving distinction, then, between the misconduct of respondent Faircloth, as laid and established, and the two instances of misconduct of respondent Truder, as disclosed by the. case and admitted, it is the judgment of the court that they should be, and they are each hereby, severely reprimanded.
BICKLEY, O. J., and WATSON, SADLER, and HUDSPETH, JJ., concur. | [
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ZINN, Justice.
From the stipulated facts and record we find that the appellee is the head of a family, a widow, living with a minor son depending upon her for support. She is not the owner of a homestead, but is the owner of personal property consisting of household goods worth about $100 and a stock of merchandise of the approximate value of $350. S'he is indebted to the appellant in the, approximate sum of $700 for rent due on a store conducted by appellee and wherein said chattels are located. Appellant, claiming a landlord’s lien, sought to foreclose on the merchandise and household goods, and appellee interposed her claim for exemption under Comp. St. 1929, § 48-117, in the sum of $500, and section 48-101, in the sum of $220, and judgment was rendered in favor of appellee allowing her an exemption of personal property of the value of $500 in lieu of a homestead exemption, on the theory, as stated by the trial court, that “the landlord’s lien does not attach to exempted property,” from which order and judgment the plaintiff below, appellant here, has brought this appeal.
The only contention of appellant is that the court erred in granting the appellee her exemption as against the landlord’s lien.
In this case it was necessary for us to make an independent search of authorities. We have examined the cases cited in 16 R. C. L. 501, the cases cited in 25 C. J. 100, the cases cited in the note in 9 A. L. R. 310, the cases in the note in 24 L. R. A. 812, the cases in the note in 119 Am. St. Rep. 128, and also other cases. There are very few cases directly in point. The majority of the cases examined by us are those wherein an exemption is claimed as against an agricultural landlord’s lien.
The case nearest in point of facts to this case is that of Ex parte Barnes, 84 Ala. 542, 4 So. 769. By Constitution and statute it was provided that the personal property of any resident shall be exempted from sale or execution, or other process of any court, issued for the collection of any debt. Landlords of any storehouse, dwelling house, or other building were granted a lien by statute on the goods, furniture, and effects belonging to the tenant, for rent, which shall be superior to all other liens, except those for taxes. The court said: “Under the facts shown in this record, the lien for rent was paramount to the claim of exemptions. And there is no hardship in this. The merchandise was intended for sale, with a view to the profits to be realized from the sale. A store-house for its preservation, exhibition and sale, was as necessary to the business as was the merchandise itself. The two together constituted an occupation, with probable emolument. Sound commercial morality forbids that all the advantages shall inure in one direction, while nothing but losses are entailed in the other.” Ex parte Barnes, 84 Ala. 540, page 543, 4 So. 769, 770.
Finding a division of authorities on the question presented, we are left to our own reasoning and to an interpretation of our statutes. It has been the accepted version in this state, extending over a period of many years, which version is based on a logical interpretation of the law, that an exemption cannot be claimed against a landlord’s lien.
Comp. St. 1929, § 48-117, grants an exemption from levy and sale of real or personal property not exceeding $500 in value, in lieu of a homestead, which exemption is in addition to the chattel property designated by section 48-101.
By section 82-404 landlords have a lien on the property of their tenants which remains in the house rented, for the rent due, or to become due, by the terms of any lease or other agreement in writing, and said property may not be removed until the rent is paid or secured.
By section 48-111 the owner of real estate can by mortgage or other act waive his exemption. Section 48-117 is in lieu of the homestead provided by section 48-111, and we must look to 48-111 to interpret, if possible, the policy of the state in this instance. The lien policy in favor of the landlord was adopted Jan. 2, 1852, C. L. 1865, e. 77, § 14, many years before the exemption policy. The exemption statute was adopted in 1887, being chapter 37 of the Laws of 1887. It is apparent that the Legislature favored liens as against exemptions in the very law granting exemptions. The landlord’s lien originates because of the relationship resulting from landlord and tenant. When the tenant moves into the premises of his landlord, by his own act he creates the lien in favor of the land lord, and thereby waives his exemption as effectively as though he had granted a mortgage.
It is the appellee’s theory that the statute fails to except landlord’s liens from the operation of the exemption statute, as it does mortgages, mechanic’s liens, etc.
It was not necessary to except landlord’s liens from the operation of the exemption statute. The lien has always been deemed superior to the exemption, and 'it was not necessary to specifically provide that exemptions could not be claimed as against a lien for rent, other than as a matter of extra precaution.
No exemption is granted against the lien or debts secured by a lien, but the exemption as to the personal property in lieu of a homestead is from levy and sale. The very title of the exemption statute shows that it is intended to grant exemption against forced sale under execution. “An Act to provide for the exemption of property from forced sale under execution.” Session Laws of 1887, c. 37. The manner of enforcement of a landlord’s lien is by foreclosure or notice. See section 82-411. In the instant case attachment' was the remedy sought, but the method was not questioned. The lien preserves to the lien claimant his security in the property to which his lien is attached for the debt from which the debtor cannot relieve himself. The lien is not discharged until the debt is paid or secured.
The lien statute does not provide that the landlord shall have a lien upon the tenant’s property not subject to execution or attachment, nor does it provide that the landlord shall have a lien upon the property of his tenant not subject to exemption, but provides that the landlord shall have a lien upon the property of his tenant which remains in the house rented.. The landlord’s lien would not attach to other property of the tenant, but merely attaches to such property as within the law remains in the house rented.
There is no specific provision in our statute that a chattel mortgage or conditional sales contract could be enforced as against a claim of exemption, Comp. St. 1929, c. 21, but there is no doubt as to the decision in such event.
Neither is there a specific provision making an innkeeper’s lien good as against a claim of exemption; see section 82-405. Rarely does a lodger bring anything into a hotel except wearing apparel, and, under section 48-101, if the exemption could be claimed as to the wearing apparel belonging to the transient tenant or lodger in a hotel or inn, and because the lien granted to innkeepers is not within the enumerated exceptions as against a claim for exemption, such lien granted by the statute to innkeepers would be worthless.
Nor could a mechanic hold a thing repaired for the amount due for work as against an exemption claimed, if the debtor, his agent or attorney, would select the automobile or thing repaired as exempt, if such theory of appellee be sustained.
The entire lien policy of the state could be defeated in such manner, and the exemption policy was not adopted for such purpose. The exemption statute was adopted as a humane policy to prevent families from becoming destitute as the result of misfortune through common debts which generally are unforeseen, but leaves to the individual the right to waive his exemption either by mortgage or operation of law, and, when a person moves upon the premises of another, he is aware, not only of the law which gives the landlord a lien' upon the .chattels which he brings into the place, but of the established policy in this state, and thereby concedes to the landlord the right to hold such chattels for rent due until paid or secured, and thereby waives his exemption as effectively as if he had given to the landlord a conventional chattel mortgage on such property to secure the landlord in his rent.
This is not a weighing of equities, nor of determining priorities of liens. The rights of both landlord and tenant are founded in law, and it was never the intention of the Legislature to permit a claim of exemption to defeat a statutory lien, not that landlords as individuals are sacrosanct, but their property rights are as sacrosanct in law as that of the tenant.
We hold that a claim of exemption in lieu of a homestead, under section 48-117, cannot be claimed as against a landlord’s statutory lien for rent, and the judgment of the district court must be reversed, and the cause remanded, with instructions to deny such claim of exemption, and to proceed with said cause.
It is so ordered.
WATSON, G. J., and SADLER, HUDS-PETH, and BICKLEY, JJ., concur. | [
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WATSON, Chief Justice.
This is an original proceeding instituted by application for a writ of prohibition. The cause has been heard upon alternative writ and answer.
The relator, on January 2,1933, armed with a certificate of election, took possession of the office of county school superintendent of Guadalupe county, and now holds it. Mrs. Martinez, the unsuccessful candidate for the office, claiming to have been elected and to be entitled to it, and alleging the refusal of the district attorney to act upon her complaint, commenced an action in the name of the state to recover the office -and its emoluments. Her action is admittedly planted upon the statute of quo warranto. 1929 Comp. St. c. 115 (section 115-101 et seq.).
The only question before us is whether a district court has jurisdiction to entertain such an action as that described. Relator does not question that this statute, being-chapter 28, Laws 1919, gave the jurisdiction. It is now challenged on the single ground that a later statute, the election code (Laws 1927, c. 41, 1929 Comp. St. c. 41 [section 41-101 et seq.]), embracing (article 4 [section 41-401 et seq.]) provision for the contest of elections, set up an exclusive remedy in a case of this kind and superseded the former remedy by statutory quo warranto.
The 1927 act is a comprehensive election code. It contains complete provision for contest by any unsuccessful candidate for any public office. If he prevail, he may have judgment of possession, for all emoluments from the beginning of the term, and for costs. Under these provisions, we have held that “an unsuccessful candidate has a remedy by contest upon any ground or grounds which go to show that he was legally elected to the office.” Rogers v. Scott, 35 N. M. 446, 300 P. 441, 442.
Daws 1919, c. 28 (1929 Comp. St. c. 115), is a reformation and extension of the law of quo warranto. While it does not abolish the old “writs and proceedings,” it says that they need not be sued out in form, and that the remedies previously obtainable thereby may be “commenced” (obtained) by filing a complaint as in other civil actions. Specifying the appropriate occasions for such an action, the statute discloses that it covers the field in which theretofore, in this jurisdiction, it had been recognized as proper to apply to the, court for leave to file an information in the nature of quo warranto. In addition, it expressly constitutes the proceeding an approlwiate remedy to test the title, not only of an incumbent of an office, but of a rival claimant, who, as relator, may lay claim to it, and adds to the old remedy of ouster of the usurper the means by which the successful relator may recover the office, its emoluments, and his costs. The latter may even require the alleged usurper to give security for repayment of the emoluments or have an injunction to prevent their being paid to him pending the litigation. This statute, as construed in State ex rel. Hannett v. District Court, 30 N. M. 300, 233 P. 1002, affords to the unsuccessful candidate for a public office as complete a remedy as he could ash.
In America it has been generally considered that the common-law mode of testing title to office is by information in the nature of quo warranto under the Statute of Anne. The election contest is purely statutory. With the coming in of such statutes, the question has always arisen whether the new method is exclusive. Respondent, contends that it is merely cumulative unless the statute has clearly expressed to the contrary, citing 51 C. J. 323. If that were accepted as the true rule, there is strong reason to urge that the 1927 Legislature clearly manifested an intention to adopt an exclusive procedure. It said: “Any action to contest an election shall be commenced by the filing of a verified notice of contest. * * * ” Section 41-602.
It is not easy to reconcile this with the present assumption to commence an action to contest an election “by the filing of a complaint as in other civil actions.”
In the note “Statutory Remedy for Contest of Election as Exclusive,” Ann. Cas. 1913E, 982, 985, numerous decisions have been collected. The author says:
“Majority rule. The authorities generally involving the question whether statutory remedies for contesting elections are exclusive appear to be in a state of conflict and uncertainty. It seems, however, that the rule adopted in the reported case, to the effect that the statutory remedy is exclusive, has found favor in at least the majority of jurisdictions. * * *
“Minority rule,' In some jurisdictions the rule has been adopted that while the legisla ture may properly adopt a special statutory remedy for contesting elections, such enactment does not of itself preclude a person from availing himself of such other remedies as may exist, and unless it is expressly or by necessary implication provided that the statutory remedy shall be exclusive, it merely operates as a cumulative remedy.”
We doubt if there is such a difference of judicial opinion as this statement would suggest. These decisions, to be of great value in determining the concensus or weight of authority, would require careful analysis and classification, since there are all kinds of statutory proceedings which might be called election contests, and many statutory modifications and adaptations of the procedure by information. Such a task we cannot undertake.
In the article on Elections, 9 R. O. L. § 147, it is said: “There is considerable difference of opinion, however, as to whether the enactment of a method for contesting an election excludes the use of common law remedies of mandamus and quo warranto. The conclusion supported by a majority of the cases seems to be that the statutory remedy is exclusive. This rule, it would seem, does not, however avoid all quo warranto proceedings concerning elective offices, but only such as are in reality contests between two persons for the same office, and there are numerous decisions holding to the doctrine that the establishment of a statutory method by which contests may be determined does not preclude the people in their sovereign capacity from inquiring by quo warranto proceedings into usurpations of office.”
This conclusion strikes us as correct upon principle. If correct, when considering a statutory election contest on the one hand, and the common-law proceeding on the other, stronger reasons support it where, as here, the common-law proceeding has been enlarged to embrace what is neither more nor less than an election contest in which the public may have no concern. In the case at bar we consider that the state has affirmatively disclaimed any right or interest. Its proper law officer has refused to act. In so far as, and whenever, the, public interest is involved in testing title to office, there is no contention here that the proceeding by quo warranto has been abolished by the creation of a proceeding wherein the contest or litigation is purely private. The question here presented is merely whether an unsuccessful candidate has, under our laws, an option to proceed in the one way or the other for the vindication of his private right.
The question is slightly complicated by the fact that the 1927 act is not entirely original. Before 1919, when the quo warranto statute was enacted, there were provisions for election contests. Code 1915, § 2066 et seq. And the 1919 act provided, in its section 15 (Comp. St. 1929, § 115-115): “This act shall not be construed to in any way affect the provisions of the statutes now in force in relation to election contests.”
Assuming from this section that quo warranto was intended as a remedy additional to the existing contest remedy, why should not the new contest remedy be considered merely cumulative in its relation to quo wax*ranto?
The assumption just indulged is not necessarily correct, however. Section 15 certainly preserved the existing right of contest. There the certainty ends. Whether it made quo warranto a cumulative remedy for the assertion of the purely private right or excepted pure contest cases from the purview of the act has never been decided, and remaixxs in doubt.
The election contest statutes in force in 1919 were deficient. They certainly did not apply to the large and important class of state offices. It might be questioned whether they included other offices than those of probate judge, sheriff, constable, and justice of the peace. See Crist v. Abbott, 22 N. M. 417, 163 P. 1085. So, as to the more important and perhaps the more numerous offices, the unsuccessful candidate could only apply to the Attorney' General to move the court for leave to file the information in the nature of quo warranto. This was not a matter of right. However strong the relator’s claim, the court might disregard it to advance or px-otect some supposed public interest. State ex rel. Cobb v. Raithel, 24 N. M. 42, 172 P. 1137. Nor was the remedy complete. It spent its force in ousting the usurper. The relator might still encounter difficulty and require further litigation to obtain his office and still further to recover the emoluments.
These two cases, the one decided in 1917, the other in 1918, brought out a situation which the 1919 Legislature no doubt designed to remedy. It could then have broadened the election contest statute, perhaps more logically and to better advantage. Iixstead, it made over the law of quo warranto. It made that procedure available as a practical and complete remedy for a defeated candidate for any public office, unless it be questioned whether, in view of section 15, supra, the act had application to those offices as to which the remedy by contest was available.
Not content with this disposition of the matter, the 1927 'Legislature, reconsidering in full the subject of elections, determined upon a compx’ehensive contest procedure applicable to every public office. If such a procedure had existed in 1919, it may be doubted if chapter 28 of that session would have been adopted. Respondent stresses the fact that it was not repealed by the election code, or referx-ed to, and that ixo provision similar to section 15 of the earlier act was resorted to, in attempted explanation of the relation between the two acts. That is a common legislative oversight, however, the occurrence of which can have but little weight in the presexxt consideration. The two statutes stand side by side, and must be harmonized and both preserved so far as possible.
In so far as quo warranto is the public’s remedy against usurpation, there is neither overlapping nor incompatibility; That use of the 1919 act is unaffected by the 1927 act. It may sometimes be difficult to determine whether the case is of the one class or the other. Questions arising out of such a case are reserved.
One difference between these two proceedings seems to us conclusive against the claim that they are equally available to one asserting the mere private right. There is no limit of time within which quo warranto must be instituted; but the contest must be commenced by filing and serving notice within thirty days after the issuance of the certificate of election. To limit the time within' which private right may be asserted, to the possible detriment of the public business, is reasonable and usual. Relator correctly points out that, under the present and former laws, this court has always considered time a vital element in the legislative policy of election contests, and held, that the mandatory limits have been set both in the public and in the private interest.
On the other hand, to limit the time within-which the state may proceed against usurpation would be new and doubtful policy.
It seems to us impossible to hold, either on principle or as matter of statutory construction, that a special proceeding, thus strictly limited as to time, is merely cumulative of an earlier statutory remedy without the time limit. If respondent were right in all other contentions, we must still hold that the Legislature spoke advisedly and meant what it said in providing tha-t “any action to contest an election shall be commenced by the filing of a verified notice of contest * * * [which] notice must be filed and a copy thereof served upon the adverse party within thirty days from the issuance of the certificate of election. * * *” Comp. St. 1929, §§ 41-692, 41-603.
Respondent points to the constitutional jurisdiction of the district courts to issue writs of quo warranto. N. M. Const, art. 6, § 13. We are not impressed, however, with the suggestion, if respondent intended to offer it, that the legislative branch has committed any offense against this jurisdiction in adopting an election contest procedure as an exclusive private remedy. °
We conclude that the alternative writ should be made permanent, and it is so ordered.
SADLER, HUDSPETH, BICKLEY, and ZINN, JJ., concur. | [
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WATSON, J.
Appellant, former wife of appellee, obtained an absolute divorce from the latter April 14, 1930. The judgment divided between the parties the care and custody of the two children, and awarded to appellant for the maintenance of the child committed to her custody the sum of $50 per month. Finding appellant to be “without personal independent means or property,” the monthly sum of $100 “in the nature of alimony” was awarded to her so long as she should remain single, and to terminate upon her marriage, “being specifically alimony for the support and rnainte^ nance of plaintiff.”
A conclusion of law, incorporated in the judgment, runs: “The court, however, retaining jurisdiction of the provisions of this decree for the * * * payment of alimony * * * with the right and power in court to readjust said payments to be made in the nature of alimony to the plaintiff * * * for good cause shown upon the application of either of the parties. * * * ” The adjudicating part of the decree contains this: .“That jurisdiction of this cause is hereby specifically retained by the court for the purpose of making all such further orders and decrees as may be necessary in connection with the * * * payment of alimony to the plaintiff.”
Scarcely five months later appellee filed the present petition to he relieved from further payments of alimony, which, after answer and hearing, the court granted. This appeal resulted.
Appellant contends, both that the court lacked power to modify the decree, and that, given the power, he erred in modifying it on the existing facts. We consider the power first.
The divorce statute (1929 Comp. St. c. 68, art, 5 [sections 68-501 to 68-511]) does not authorize the court to reserve jurisdiction in the matter of alimony, or to decree concerning it otherwise than finally, except during the pendency of the suit. Neither does the Code of Civil Procedure, so far as we are aware, authorize reservation of jurisdiction in any matter or cause. Yet it is familiar practice in equity.
The statute does not authorize a court to reserve jurisdiction of the custody, maintenance, etc., of the minor children. The statute itself reserves it. Id. § 68-506. The court could not, if it would, divest itself of such continuing jurisdiction. The fact does not argue against the court’s power, in its discretion, to reserve jurisdiction in the matter of alimony. It merely shows that the Legislature did not see fit Itself to reserve or continue the jurisdiction.
A decree for any sum or sums of money as alimony operates as a judgment lien upon the husband’s property. Id. § 68-507. This is not the occasion for determining the meaning or effect of that provision. We cannot under any view ascribe great force to it here, where the only question is as to the court’s power to reserve jurisdiction to modify the amount of an indefinite number of monthly payments.
Pure alimony, provision for 'the wife’s maintenance, such as we have here, is difficult to fix finally and definitely with any assurance that it will continue reasonable and just, however carefully considered or wisely adjusted at the time. Naturally the legal status of the parties and their property interests must be definitely and finally settled by the decree. Not so with alimony. The law contemplates such alimony “as under the circumstances of the case may seem just and proper.” Id. § 6S-506. Changed circumstances may frequently render the decree unjust and improper. The wife may marry one able to support' her luxuriously. The husband any lose his means. We shall not readily yield to the contention that the court is without discretion to provide for such changed conditions.
Authorities from other jurisdictions cited by appellant have been consulted and found not in point. Weld v. Weld, 28 Minn. 33, 8 N. W. 900, holds that a decree of separate maintenance can be modified only upon new facts, or, perhaps, upon old facts newly discovered. We need not question that doctrine. Decisions cited by appellee are to the same effect, and we understand him here to rest his case upon the showing of changed circumstances.
An annotation in 71 A. L. R. 723, discusses “Power, in absence of reservation by statute or decree, to modify provision in decree of divorce or separation as to alimony or separate maintenance.” On that question of inherent power there seems to be conflict. But none of the cases there collected question the Inherent power to reserve in the decree itself the right to modify the alimony provision. Many of them assume the existence of such power. Ruge v. Ruge, 97 Wash. 51, 165 P. 1063, 1065, L. R. A. 1917F, 721, an able and much-cited opinion, says: “The cases are in harmony that, where the power to modify is thus expressly reserved in the decree, the tribunal reserving it has the power to exercise it to meet changed or changing conditions thereafter arising.”
Appellant strongly relies on Hodges v. Hodges, 22 N. M. 192, 159 P. 1007, 1009, and particularly upon this expression therefrom: “ * * * The powers of courts in matrimonial matters in this country are to be determined-entirely upon the terms of the .statutes conferring the jurisdiction.” She contends ■that under this pronouncement we have but to read the statute and deny the power, since it is not there expressed.
Appellant claims much more for this statement than we can concede. Considering the context, it means, as said in the same paragraph, that the ecclesiastical law “as a system of substantive and remedial law” is not a part of New Mexico jurisprudence. It was decided merely that the power of the English ecclesiastical courts to grant divorce a mensa et thoro has not descended to the courts of this state, that the latter must look to the statute for the jurisdiction, and that, if for a given cause the statute gives the right to a divorce ex vinculo matrimonii, the party proving such cause cannot be put off with a divorce a mensa.
The quoted expression, standing alone, lends some support to the idea that divorce is a special statutory proceeding, and that the court is without any implied, inherent, or ■analogous powers. But such is not the statute nor the state of the decisions.
The power to grant divorce from the bonds of matrimony implies certain results upon the status and rights of the parties not expressed in the statute but to be gathered from common understanding and current authority. So with the power to award alimony, a term not defined by the statute, but well understood. It is prescribed (section 68-501) that the proceedings shall be according to the Code of Civil Procedure.
The first New Mexico legislation regarding divorce which we have found is Laws 1872, c. 15. It consisted of one section. It validated divorces theretofore granted by the district courts, and for the future limited the grounds to three. C. L. 1884, § 998. Pri- or thereto it seems to have been considered that the civil law was in effect, that a competent tribunal might decree separation from bed and board, and that the equity side of the district court was such tribunal. Martinez v. Lucero, 1 N. M. 208.
In 1884 (chapter 15) the Legislature required the complaining party to prove residence of six months and authorized service by publication. In 1S87 (chapter 33) two additional grounds for divorce were prescribed. C. L. 1897, §§ 1431-1433. In the meantime, in 1876, the common law had been adopted. 1929 Comp. St. § 34-101..
In 1890 equity was recognized as having inherent powers in divorce proceedings not derived from nor dependent upon statute, but growing out of the necessities of the situation. Lamy v. Catron, 5 N. M. 373, 23 P. 773. Under the present statute, inherent powers have been recognized. Taylor v. Taylor, 19 N. M. 383, 142 P. 1129, L. R. A. 1915A, 1044; Oldham v. Oldham, 28 N. M. 163, 208 P. 886.
So we'conclude that the district court was within its jurisdiction in reserving the power to modify its decree as to alimony. We come to the questions of error in exercising it.
The trial court found these changes in “the circumstances of the case”; That appellee has remarried and is supporting a stepchild; that since the original arrangement his debts have grown from $2,300 to $3,500; that appellant now makes her home and lives with her father as a member of his family; that the father is a man of great wealth, amply able to provide for appellant, and actually providing for her all the comforts of life; and that appellant does not require alimony.
The court also found that, at the time of the original award of alimony, appellee “was (so) confused over the breaking up of his home that he did not take proper precautions to protect his own interests.”
The earnings and income of appelle.e not having changed, his ability to pay having been impaired only as the natural result of his voluntary assumption of new ties and obligations; appellant’s total lack of personal independent means or property remaining unchanged ; her present nonrequirement of ali‘mony being predicated, not on any earnings of her own, or ability to earn, not upon a remarriage as contemplated by the decree, but merely upon her father’s bounty — it is apparent that this is not one of those cases of changed circumstances which calls so loudly for the existence of the power we hold the court to possess; not a case where alimony has “become a club of revenge and hate in the hands of the one, or a millstone about the neck of the other.” Chadwick, J., in Ruge v. Ruge, supra. Are these findings sufficient? Appellant thinks not.
She first contends that the new circumstance of supporting a stepson should not have been considered, since appellee was not legally obligated to such support. We'do not pause to determine this question of legal obligation. The support of a four, year old boy cannot be a great burden upon an income of $500 per month, and could not have been an important factor in the decision to reduce monthly alimony from $100 to nothing.
Counsel seem to agree that the remarriage of the husband, and the new obligation of support thus assumed, will not alone justify reduction of the alimony. It is a circumstance which may in some cases require consideration. The law left appellee free to remarry and obligates him to support his present wife. If he were unable to support her and pay the alimony, the necessities of the case might require an adjustment as between the two obligations. This view finds support in, or is at least consistent with, decisions cited by both counsel. Newburn v. Newburn, 210 Iowa, 639, 231 N. W. 389; Langrall v. Langrall, 145 Md. 340, 125 A. 695, 37 A. L. R. 437; Simpson v. Simpson, 51 Idaho, 99, 4 P.(2d) 345; Herrett v. Herrett, 80 Wash. 474, 141 P. 1158; Morrison v. Morrison, 208 Iowa, 1384, 227 N. W. 330; Boniface v. Boniface, 179 Ark. 738, 17 S.W.(2d) 897; Lamborn v. Lamborn, 80 Cal. App. 494, 251 P. 943. We have no such case here. The court has not found that appellee cannot comfortably and suitably support his wife, his own eight year old son, and his stepson, on $850 per month remaining of his admitted earnings, after the payments required by the decree. It was found merely that his debts had increased, without assigning any reason therefor.
In appellee’s testimony we find nothing to aid the case. He merely testified that he had lived economically and had borrowed the money to pay the alimony. Upon this record the circumstance of remarriage seems to stand alone, with no attending results making it a material matter for consideration.
This leaves the general finding that appellant does not require alimony, as supported by the special findings that she lives in the family of her father who is rich and supplies her with the comforts of life. This circumstance also appellant contends should not be considered, for the reason that her father is under no legal obligation to support her. It must be deemed also somewhat weak as a changed condition. The father’s wealth and ability to support his daughter must have been known to appellee when, through his attorney, he originally negotiated and agreed to the alimony terms. lie does not say that he did not then anticipate that-his abandoned wife would be received under her father’s roof.
We do not say that this is a circumstance never to be considered in. awarding or modifying alimony. It would be harsh to impoverish the husbánd for the difference between a legal and a moral obligation or willingness of- the father to support the wife. But the law’s obligation falls on the husband, not on the father, and we know of no reason, except perhaps necessity, to warrant the court in shifting it thus in its entirety.
Undoubtedly the trial court has a large discretion in awarding and subsequently adjusting alimony to changed conditions. Properly and necessarily so. This court should not and will not substitute its own discretion. Its intervention is invoked properly only for abuse of discretion" or for the application of erroneous principles.
If we .adhere to the doctrine, not challenged by .appellee, that the court’s function was not to review the original decree for errors of judgment or discretion, but to modify it to meet changed conditions, we can scarcely give weight to the finding that appellee’s mental confusion prevented him from proper precautions to protect his interests, in a suit wherein he was represented by able counsel, and no pertinent existing fact or condition is shown to have been overlooked by any one. Nor can we avoid the conclusion that the present decree or order, not in modification, but in rescission, in so far as it rests upon changed conditions, rests upon conditions not shown by the findings or proof to have been proper matter for consideration.
The order modifying final decree will be reversed. The cause will be remanded, with a direction to dismiss the petition, but without prejudice to further proceedings for modification under the jurisdiction reserved. It is so ordered.
BICKLEY, O. J., and SADLER, X, concur.
HUDSPETH, and NEAL, JX, did not participate. | [
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OPINION
ALARID, Judge.
{1} This is an appeal from the district court’s dismissal with prejudice of a complaint to set aside a tax deed. We find no error and affirm the orders granting summary judgments to Defendants.
BACKGROUND
{2} Plaintiff-Appellant, Vivian Cordova (Cordova), and his wife Diana, purchased as joint tenants five acres of land located just west of the intersection of Central Avenue and 98th Street in Albuquerque, New Mexico (the Property). The Cordovas divorced in 1991. They continued to hold the Property as joint tenants.
{3} At all material times, Cordova received his mail at a residence on La Cabra Drive in Southeast Albuquerque owned by one of Cordova’s brothers. Cordova considered the La Cabra Drive residence his home. Cordova and his brother, Arturo, were the only persons living at the La Cabra Drive residence. In late September 1995, the Property Tax Division of the New Mexico Taxation and Revenue Department (the PTD) sent to the La Cabra Drive address a “Notice of Sale of Real Property” stating that taxes on the Property for 1991 and subsequent years were delinquent and that the Property would be sold at a public auction on October 24, 1995, unless the Cordovas paid or entered into an installment agreement for the payment of taxes, penalties, and interest in the amount of $7,819.03. Thereafter, Cordova met with Art Kavanaugh, a senior tax researcher with the Bernalillo County Treasurer’s Office (the BCTO). Cordova and Kavanaugh reached an agreement pursuant to which Cordova would make an initial payment of $3,922.02 by October 20, 1995. Cordova further agreed to pay the remaining balance together with the 1995 taxes by May 10, 1996. In return, the PTD would withhold the Property from auction. This agreement is documented in an October 20, 1995, letter from the BCTO to Cordova. On October 20, 1995, Cordova’s brother tendered a cashier’s check for $3,922.02 payable to the Bernalillo County Treasurer. There is no evidence that Cordova or anyone acting on his behalf made a second payment as contemplated by Cordova’s agreement with Kavanaugh.
{4} In June 1997, the Bernalillo County Treasurer sent a bill for property taxes to Cordova at the La Cabra Drive address. The bill stated that:
The 1994 property taxes for this property became delinquent Dec 10, 1994 for the first half and May 10, 1995 for the second half. They now have been delinquent for more than two years. If payment is not made directly to the County Treasurer by June 30, 1997, the property will be transferred to New Mexico Property Tax Division for collection. The State will then offer this property at public sale in 1998.
After July 1, 1997 you must pay all delinquent taxes to prevent tax sale action. All taxes due are listed below. The Treasurer’s Office will only accept cash, cashier’s check or money order as payment of 1994 taxes. Personal checks will not be accepted.
The bill showed taxes, penalties, and interest in the following amounts: $1,016.17 owed for 1993; $935.54 owed for 1994; $836.50 owed for 1995; and $763.33 owed for 1996, for a total liability of $3,551.54. Cordova concedes that he received the June 1997 bill.
{5} In early August 1997, Cordova met with Kavanaugh and two representatives from the PTD. Kavanaugh recalled that Cordova was told that the taxes had to be paid by September 30, 1997, to avoid a tax sale. In contrast, Cordova recalled that Kavanaugh or one of the PTD representatives wrote on a tax notice that the taxes had to be paid by October 1,1997, to prevent the Property from “going to the state,” and that nothing was said about an impending tax sale. Cordova claimed that he subsequently lost the notice with the handwritten notations when a Mend cleaned out his vehicle as a favor.
{6} On August 29, 1997, the PTD sent by certified mail, return receipt requested, a “Notice of Sale of Real Property” to Cordova and Diana at their separate addresses. The notices stated that the Property would be sold on September 30, 1997, at a public auction unless $8,670.97, representing taxes, penalties, and interest for 1993 and subsequent years was paid to the Bernalillo County Treasurer.
{7} Diana received her notice, which had been mailed to her mother’s address and forwarded to her. Diana decided to take no action and to allow the tax sale to proceed. She did not discuss the notice with Cordova.
{8} Cordova concedes that his copy of the August 29, 1997, notice was mailed to him at his correct address. There was undisputed evidence that the post office made two, possibly three, attempts to deliver the letter to the La Cabra Drive address. At some point prior to the tax sale, the envelope containing Cordova’s copy of the August 29,1997, notice was returned to the PTD as unclaimed with the unsigned return receipt still attached. At his deposition, Cordova admitted that either he or his brother would have picked up any mail delivered to the La Cabra Drive address during August and September 1997. Cordova was certain that if his brother had picked up a notice of certified mail, he would have told Cordova.
{9} Cordova recalled that he sent one of his brothers to the BCTO on September 29 and 30,1997, with a cheek for the full amount due, and that on both occasions Cordova’s brother could not find Kavanagh, and left. Cordova himself stopped by the BCTO on October 1, 1997, with the check, but was told it was too late: the Property had been sold the previous day.
{10} On October 23, 1997, Cordova filed a Complaint to Set Aside Tax Deed, naming the PTD and the BCTO as defendants. In his complaint, Cordova admitted that he had had actual knowledge that property taxes on the Property were delinquent. Cordova asserted that he had been misled by the June 1997 notice stating that the Property would be offered for sale in 1998 and by alleged assurances during the August 1997 meeting that Cordova had until October 1, 1997, to pay delinquent taxes. Cordova further alleged that the PTD had not provided him with proper notice in violation of NMSA 1978, § 7-38-66 (1990) (amended 2001) and the United States and New Mexico constitutions. Cordova claimed that he had been deprived of property having a fair market value of $800,000. Cordova prayed that the tax deed be set aside; that Defendants be required to accept payment of delinquent property taxes; and, for such further relief as the district court might deem proper.
{11} In January 1998, Cordova filed an amended complaint joining W & P Real Estate, Inc. (W & P), the entity to which Floyd Wilson had transferred the Property following Wilson’s purchase of the Property at the September 30, 1997, tax sale. In his amended complaint, Cordova prayed that the tax deed be set aside; that W & P be reimbursed by the State; that the PTD and the BCTO be ordered to accept Cordova’s tender of payment for property tax delinquencies; and, for such other further relief as the court may deem just and proper.
{12} In a series of summary judgments, the district court dismissed the complaint as to W & P, the BCTO, and the PTD.
DISCUSSION
1. Summary Judgment as to W & P Real Estate
{13} W & P was the first Defendant to file a motion for summary judgment. In its memorandum in support of its motion, W & P asserted that there were no genuine issues of material fact as to any ground for setting aside a tax deed. In his response, Cordova argued that there were genuine issues of material fact as to two grounds for invalidating the sale of the Property: prior payment and lack of notice. The district court rejected Cordova’s arguments and granted summary judgment in favor of W & P.
a. Prior Payment
{14} An appeal from a district court’s order determining that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law, Rule 1-056(C) NMRA, presents a question of law, subject to de novo review. Bartlett v. Mirabal, 2000-NMCA-036, ¶ 4, 128 N.M. 830, 999 P.2d 1062.
{15} At the time of the tax sale, Section 7-38-66(E) (1990) provided that “[p]roof by the taxpayer that all delinquent taxes, penalties, interest and costs had been paid prior to the date of sale shall prevent or invalidate the sale.” In support of his claim of prior payment, Cordova attached an affidavit and two pages of deposition testimony. In his affidavit, Cordova stated:
2. [0]n October 20, 1995, the Bernalillo County Treasurer’s Office received a cashier’s check in the amount of $3,922.02, for payment of back taxes 1990 thru 1995[.]
3. It is my understanding that the cashier’s check of October, 1995, in the amount of $3,922.02, brought my taxes current thru 1995 leaving an undue balance of $764.90, for tax year 1996[.]
Cordova’s deposition testimony contained similar assertions that Cordova had brought his taxes current by making a $3,922.02 payment to the BCTO on October 20, 1995. Cordova also attached to his response a photocopy of a cashier’s check dated October 20, 1995, in the amount of $3,922.02 payable to the Bernalillo County Treasurer; a copy of the September 1995 tax bill advising the Cordovas that they owed $7,819.03 in back taxes, penalties, and interest; and a copy of the October 20, 1995, letter from the BCTO to Cordova documenting Cordova’s agreement to make an initial payment of $3,922.02 by October 20, 1995, and to pay the remaining taxes, including 1995 taxes, by May 10, 1996.
{16} We agree with W & P that Cordova’s unilateral understanding that the initial payment of $3,922.02 brought his taxes current through 1995 is inconsistent with the agreement documented in the October 20, 1995, letter, which required Cordova to make a second payment by May 10, 1996. As W & P correctly observed in its reply in support of its motion for summary judgment, the initial payment of $3,922.02 corresponds to $7,819.03 (the amount of accrued taxes, penalties, and interest) plus $25.00 (the amount of an additional monthly penalty for late payment) divided by two. There is no evidence of the second payment contemplated by the installment agreement documented in the October 20, 1995, letter from the BCTO. In the face of documentary evidence establishing that the $3,922.02 payment corresponded to payment of one-half of his delinquent taxes, penalties, and interest, Cordova’s self-serving testimony as to his subjective belief that he had paid his taxes for 1994 and 1995 was insufficient to create a genuine issue of material fact as to prior payment.
b. Notice
{17} Whether the PTD provided Cordova with adequate notice is a question of law, which we review de novo. See Patrick v. Rice, 112 N.M. 285, 290, 814 P.2d 463, 468 (Ct.App.1991) (observing that after evidentiary hearing on adequacy of notice of tax sale, appellate court defers to district court’s findings that are supported by substantial evidence, but independently reviews the legal effect of the facts so established). Because the question of notice was resolved by summary judgment, rather than by an evidentia ry hearing, we review the record under the standards summarized in Bartlett, 2000-NMCA-036, ¶¶ 4, 7, 128 N.M. 830, 999 P.2d 1062, to determine whether the district court correctly determined that there were no genuine issues of material fact precluding summary judgment.
c. Statutory Notice
{18} The Property Tax Code required the PTD to send Cordova notice of the tax sale “by certified mail, return receipt requested, to the address as shown on the most recent property tax schedule.” Subsection 7-38-66(A) (1990). The Property Tax Code further provided that:
Failure of the department to mail a required notice by certified mail, return receipt requested, shall invalidate the sale: provided, however, that return to the department of the notice of the return receipt shall be deemed adequate notice and shall not invalidate the sale.
Subsection 7-38-66(D) (1990). Subsection 7-38 — 66(D) as amended in 1990 is a substantial simplification of this subsection as originally enacted in 1973; and, we believe, was intended to legislatively overrule the Supreme Court’s decision in State ex rel. Klineline v. Blackhurst, 106 N.M. 732, 749 P.2d 1111 (1988).
{19} In Klineline, the PTD had sent a notice by certified mail to the taxpayers’ residence, which was the address shown on the most recent tax schedule. Id. at 734, 749 P.2d at 1113. The envelope containing the notice, stamped “unclaimed,” and the unsigned return receipt form were returned to the PTD by the post office. Id. After the property was sold at a tax sale, the taxpayers resisted efforts to eject them from their residence, challenging the validity of the sale on the ground of inadequate notice.
{20} The pre-1990 version of the Property Tax Code in effect at the time provided that:
Failure of the division to mail the notice by certified mail, return receipt requested, or failure of the division to receive the return receipt shall invalidate the sale; provided, however, that the receipt by the division of a return receipt indicating that the taxpayer does not reside at the address shown on the most recent property tax schedule shall be deemed adequate notice and shall not invalidate the sale.
Id. at 735, 749 P.2d at 1114 (quoting NMSA 1978, § 7-38-66(0 (1973)). The Supreme Court held that the PTD’s receipt of the return receipt form without a signature showing that it had been accepted by or on behalf of the taxpayers amounted to a “failure of the division to receive the return receipt,” id. at 736, 749 P.2d at 1115, and that a return receipt form stamped unclaimed by the post office was not equivalent to “a return receipt indicating that the taxpayer does not reside at the address shown,” id. at 737, 749 P.2d at 1115. The Supreme Court held that the PTD had not substantially complied with the notice requirement of Section 7-38-66(C), currently Section 7-38-66(D), and that the tax sale was therefore invalid. The 1990 amendment eliminated the specific language relied upon by the Supreme Court in invalidating the sale in Klineline. As we read Section 7-38-66 as amended in 1990, the PTD’s receipt of the notice of return receipt “shall be deemed adequate notice” as long as the notice of the tax sale was mailed in compliance with Subsection 7-38-66(A). The fact that the notice of receipt form was not signed by or on behalf of the taxpayer or that the notice of the tax sale was returned marked unclaimed rather than indicating that the taxpayers no longer reside at the address of record is no longer dispositive of the adequacy of statutory notice.
{21} There is no dispute that the PTD mailed a notice of the tax sale to Cordova at his residence, which was “the address as shown on the most recent property tax schedule.” Under the 1990 version of Section 7-38-66(E), which was in effect at the time of the tax sale, the fact that the post office returned the envelope containing this notice to the PTD stamped “unclaimed” and with an unsigned return receipt does not invalidate the subsequent tax sale. The dis triet court correctly determined that there were no genuine issues of material fact as to the question of the PTD’s compliance with statutory notice requirements. The August 29, 1997, notice mailed to Cordova at his address of record constituted statutorily adequate notice even though it was returned marked unclaimed.
d. Due Process Notice
{22} Apart from satisfying statutory notice requirements, notice of a tax sale must provide constitutionally adequate notice to the delinquent taxpayer. E.g., Hoffman, 117 N.M. at 268, 871 P.2d at 32. To satisfy due process, notice must be given in a manner “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). Efforts at effecting notice to absent parties should “be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.” Id. at 315, 70 S.Ct. 652.
{23} Some courts measure the adequacy of mailed notice by considering only those circumstances known to the sender as of the date of the initial mailing. E.g., Sarit v. DEA, 987 F.2d 10, 14 (1st Cir.1993) (observing that “Knowledge of the likely effectiveness of the notice is measured from the moment at which the notice was sent”). Under this approach, the subsequent return of mailed notice as undeliverable or unclaimed does not affect the constitutional adequacy of the notice. Id. at 14. Other courts read Mullane’s phrase “under all the circumstances,” to extend to circumstances occurring after the original mailing. Under this approach, the return of mailed notice as undeliverable or unclaimed is a factor in deeiding whether the sender utilized a method of notice “reasonably calculated, under all the circumstances, to apprise interested parties,” 339 U.S. at 314, 70 S.Ct. 652. E.g., Small v. United States, 136 F.3d 1334 (D.C.Cir.1998); Jones v. Grieg, 829 A.2d 195, 199-200 (D.C. 2003) (characterizing return of notice as unclaimed as a “red flag”). To our knowledge, the United States Supreme Court has not decided a case that turned upon the application of Mullane to mailed notice which has been returned to the sender.
{24} We consider it significant that Mullane’s endorsement of service by mail occurred in a context where there were numerous parties who were similarly-situated. The Supreme Court emphasized that:
[t]he individual interest does not stand alone but is identical with that of a class. The rights of each ... are shared by many other beneficiaries. Therefore notice reasonably certain to reach most of those interested ... is likely to safeguard the interests of all____ We think that under such circumstances reasonable risks that notice might not actually reach every beneficiary are justifiable.
339 U.S. at 319, 70 S.Ct. 652. Where, as here, the class of persons whose interests will be affected consists of one or two individuals, Mullane’s rationale that “notice reasonably certain to reach most of those [likely to be affected] is likely to safeguard the interests of all,” is not at all compelling. Id. While it may have been possible in Mullane to judge the adequacy of notice to a class of similarly-situated parties as of the date of the mailing, we do not think that it is possible in every case to determine the adequacy of notice by mail without regard to subsequent events such as the return of the notice as unclaimed or undeliverable. Thus, we reject a per se rule that examines the adequacy of notice solely by reference to the information available to the sender as of the date of mailing. Instead,
[w]e believe the correct approach is a fact-specific analysis under the due process standard set forth by the Supreme Court in Mullane, which requires us to consider all the circumstances of each case to determine whether the notice provided is reasonably calculated to apprise the [affected party] of the impending proceeding.
Garcia v. Meza, 235 F.3d 287, 291 (7th Cir. 2000).
{25} We also reject W & P’s argument that we should apply a per se rule that notice to one joint tenant, constitutes constitutionally adequate notice to other joint tenants. Under the Property Tax Code, property taxes are personal obligations of the persons owning the property and a personal judgment may be rendered against the owners for delinquent taxes. NMSA 1978, § 7-38-47 (1973). However, “[a] sale properly made under the authority of and in accordance with the requirements of [the Property Tax Code] constitutes full payment of all delinquent taxes, penalties and interest that are a lien against the property at the time of the sale.!’ NMSA 1978, § 7-38-67(E) (1999) (amended 2001). It is clearly foreseeable that by the time property is turned over to the PTD for sale, joint tenants may have divergent interests: one tenant may be satisfied to have the property sold, thereby discharging any past tax liability and foreclosing future liability, while another tenant may wish to pay the taxes and retain the property. The fact that two or more taxpayers are co-tenants is merely one circumstance that may be considered in determining whether notice was constitutionally adequate; however, it is not of itself dispositive of the constitutional adequacy of notice.
{26} In the district court, W & P moved for summary judgment arguing in the alternative that (1) Cordova had actual knowledge of the September 30, 1997, sale, or (2) the PTD had provided constitutionally adequate notice when it mailed the notice to Cordova’s correct address. In its Answer Brief in this Court, W & P has not addressed Cordova’s argument that a genuine issue of material fact existed as to Cordova’s lack of actual notice. We therefore deem W & P to have abandoned the argument that the summary judgment can be sustained on the ground that there was no genuine issue of material fact as to Cordova’s receipt of actual notice. We therefore focus on whether W & P was entitled to summary judgment on the question of constitutionally adequate notice.
{27} W & P included the following paragraphs in its statement of undisputed material facts:
7. The Notice of Tax Sale which was sent to Plaintiff Vivian Cordova, was mailed, by certified mail, return receipt requested to Vivian Cordova, at 1500 La Cabra S.E., Albuquerque, New Mexico 87123[.]
8. As of August-September, 1997, the Plaintiff, Vivian Cordova resided at 1500 La Cabra S.E., Albuquerque, New Mexico 87123, and received his mail at that address.
9. The Plaintiff, Vivian Cordova, either failed or refused to accept delivery of the certified letter which contained the [August 29, 1997] Notice of Tax Sale; and such letter was ultimately returned to the Property Tax [Division marked “unclaimed.”
(Citations to the record omitted).
{28} Cordova did not dispute the facts set out in paragraphs 7-9 of W & P’s statement of material facts. Pursuant to Rule 1-056(D), those facts were deemed admitted. We hold that these facts were sufficient to establish a prima facie case of entitlement to summary judgment on the question of the adequacy of notice. Therefore, the burden of production shifted to Cordova to establish a genuine issue of material fact as to the constitutional adequacy of notice. See Blauwkamp v. Univ. of N.M. Hosp., 114 N.M. 228, 232, 836 P.2d 1249, 1253 (Ct.App.1992) (discussing the respective burdens of summary judgment for movant and nonmovant in the context of a medical malpractice action).
{29} We recognize that the fact that the notice was returned to the PTD marked unclaimed rebuts any presumption of actual receipt arising from the fact of mailing. See Wells Fargo Bank v. Carter (In re Carter), 511 F.2d 1203, 1204 (9th Cir.1975). However, under Mullane, the relevant inquiry is not whether Cordova actually received the notice, but rather, whether the PTD employed a method of service reasonably calculated to result in Cordova’s actual receipt of the notice. See Dusenbery v. United States, 534 U.S. 161, 170, 122 S.Ct. 694, 151 L.Ed.2d 597 (2002) (discussing Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983)).
{30} In our view, just as Mullane assumes a hypothetical sender “desirous of actually informing the absentee,” 339 U.S. at 315, 70 S.Ct. 652, Mullane assumes a hypothetical recipient desirous of actually being informed. In response to W & P’s motion, Cordova never directly denied receiving from the post office one or more notices of attempted delivery of the PTD’s notice. Indeed, in his brief in this Court, Cordova relies on the tepid assertion that “Plaintiff failed to accept delivery of the certified letter, which contained the ... Notice of Tax Sale.” The fact that Cordova “failed to accept delivery” does not call into question the reasonableness of the PTD’s attempt to serve Cordova with notice by certified mail sent to Cordova’s correct address. See Maso v. N.M. Taxation & Revenue Dep’t, 2004-NMSC-028, ¶ 13, 136 N.M. 161, 96 P.3d 286 (observing that “where circumstances are such that a reasonably prudent person should make inquiries, that person is charged with knowledge of the facts reasonable inquiry would have revealed”) (internal quotation marks and citation omitted). Cordova failed to demonstrate a genuine issue of material fact as to the constitutional adequacy of the notice provided by the PTD.
2. Summary Judgment as to the Bernalillo County Treasurer’s Office Constructive Fraud
{31} Cordova argues that there are genuine issues of material fact as to whether he was subjected to constructive fraud by the BCTO. Cordova points to the June 1997 letter from the BCTO informing Cordova that his account would be transferred to the PTD for collection and that “[t]he State will then offer this property at public sale in 1998.” (Emphasis added). Cordova claims that he was lulled into inaction by the reference to a sale “in 1998,” which he understood as a representation that the Property would not be sold prior to 1998. Cordova claims that he was further misled by statements made to him during the August 1997 meeting with Kavanaugh and representatives of the PTD. Cordova claims that he was specifically told that he could pay his delinquent taxes on October 1, 1997, and avoid having the Property “go[ ] to the state.”
{32} Prior to 1973, constructive fraud by the officer selling property was a statutory ground for attacking a tax deed. Worman v. Echo Ridge Homes Coop., 98 N.M. 237, 647 P.2d 870 (1982) (discussing NMSA 1953, § 72-8-20). In 1973, the Legislature amended the Property Tax Code, omitting fraud by tax officials from the list of statutory grounds for attacking a tax deed. 1973 N.M. Laws ch. 258, § 110(D). Constructive fraud by tax officials is no longer a ground for setting aside a tax deed. NMSA 1978, § 7-38-70(D) (1982).
{33} To the extent the complaint can be construed as seeking damages as an alternative to setting aside the tax deed, the BCTO, as a governmental entity, is immune from liability for damages absent a statutory waiver. NMSA 1978, § 41-4-4(A) (1996) (amended 2000). Constructive fraud is not one of the activities for which sovereign immunity has been waived. Valdez v. State, 2002-NMSC-028, ¶ 9, 132 N.M. 667, 54 P.3d 71; Health Plus of New Mexico, Inc. v. Harrell, 1998-NMCA-064, ¶17, 125 N.M. 189, 958 P.2d 1239.
{34} Cordova argues that the B CTO’s constructive fraud contributed to his lack of actual notice that his property would be sold on September 30, 1997, thereby implicating “notice requirements embodied in the Feder al and State Constitutional due process requirements.” To the extent Cordova is attempting to recast his constructive fraud claim as a state constitutional claim, it is barred by Section 41-4-4(A). See Begay v. State, 104 N.M. 483, 488, 723 P.2d 252, 257 (Ct.App.1985) (observing that Tort Claims Act extends to claims based on violations of the New Mexico Constitution), rev’d on other grounds by Smialek v. Begay, 104 N.M. 375, 721 P.2d 1306 (1986). However, we agree with Cordova that the Tort Claims Act does not immunize the BCTO from a federal constitutional claim for damages based upon his right to adequate notice. See Carter v. City of Las Cruces, 1996-NMCA-047, ¶ 6, 121 N.M. 580, 915 P.2d 336.
{35} It is undisputed that the June 1997 bill from the BCTO referred to a tax sale in 1998. Further, for purposes of summary judgment we must view the evidence most favorable to the non-movant, Cordova, and therefore for purposes of summary judgment we accept as true Cordova’s testimony that he was told that he could pay his delinquent taxes on October 1, 1997, and still avoid having his property “go[ ] to the state.” We conclude that Cordova established genuine issues of material fact as to whether these representations precluded Cordova from having actual notice of the deadline by which he was required to pay his taxes in order to prevent a tax sale.
{36} To the extent Cordova is attempting to recast his constructive fraud claim as a due process claim, we emphasize the principle that due process is satisfied by either actual notice or notice reasonably calculated, under all the circumstances, to apprise the affected party. We have already determined that Cordova subsequently received notice from the PTD reasonably calculated to apprise Cordova of the September 30, 1997, tax sale. The PTD’s August 29, 1997, notice, which correctly advised Cordova that the property was to be sold at a public auction on September 30, 1997, at 10:00 a.m. unless delinquent taxes, penalties, and interest were paid to the BCTO prior to the sale, provided Cordova with the notice he was due. We consider it immaterial that this subsequent constitutionally adequate notice came from the PTD rather than the BCTO.
3. Summary Judgment as to the PTD
{37} The PTD was the last Defendant to move for summary judgment. The PTD argued that under the doctrines of collateral estoppel and law of the case it was entitled to the benefit of the prior orders granting summary judgment to W & P and the BCTO. The PTD pointed out that the only allegations against the PTD related to the adequacy of the notice mailed out to Cordova by the PTD. The PTD argued that “all claims made against the [PTD] have been adjudicated in the [PTD’s] favor in the summary judgments entered in favor of the other two [Defendants in this case.” In his response, Cordova argued that in granting the prior summary judgments in favor of W & P and the BCTO, the district court had overlooked genuine issues of material fact created by the evidence in front of the district court when it granted the prior summary judgments. Cordova attached to his response the evidentiary materials that had been before the district court when it ruled on W & P’s motion. Cordova argued that the district court had the inherent authority to revisit its earlier rulings and that the district court should reverse its orders granting summary judgment to W & P and the BCTO and deny the PTD’s motion for summary judgment. The district court rejected Cordova’s arguments and granted the PTD’s motion for summary-judgment.
{38} We conclude that the district court’s order granting summary judgment in favor of the PTD should be upheld as resting on a proper application of collateral estoppel. “[A] summary judgment is a decision on the merits of the case. Thus, a Rule 56 motion will be granted on the basis of former adjudication when an earlier summary judgment has disposed of the same issues between sufficiently related parties.” 10B Charles Alan Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice & Procedure § 2735, at 303-04 (3d ed.1998) (footnotes omitted). New Mexico case law has endorsed non-mutual, offensive collateral estoppel. Silva v. State, 106 N.M. 472, 476, 745 P.2d 380, 384 (1987). Non-mutual, offensive collateral estoppel applies where a defendant seeks to preclude the plaintiff from relitigating an issue the plaintiff has previously litigated and lost. Id. Although the district court did not explain the basis of its ruling, we may affirm its grant of summary judgment on any ground that is supported by the record if affirmance on that ground would not be unfair to the appellant. Moffat v. Branch, 2002-NMCA-067, ¶ 13,132 N.M. 412, 49 P.3d 673. There is no unfairness in relying on this ground since it was raised by the PTD’s motion for summary judgment. Furthermore, the record conclusively establishes that Cordova had a full and fair opportunity to litigate the issue of adequate notice in response to W & P’s motion for summary judgment.
CONCLUSION
{39} The summary judgments granted in favor of W & P, the BCTO, and the PTD are affirmed.
{40} IT IS SO ORDERED.
WE CONCUR: JONATHAN B. SUTIN and RODERICK T. KENNEDY, Judges.
. Handwritten notations on the envelope containing the notice that apparently were made by post office personnel indicate that the post office took action on August 30, September 8, and September 14, 1997. We take judicial notice of the fact that September 14, 1997 fell on a Sunday.
. We apply the property tax law in effect at the time of the tax sale. Hoffman v. N.M. Taxation & Revenue Dep't, 117 N.M. 263, 264, 871 P.2d 27, 28 (Ct.App.1994).
. The United States Postal Service has written guidelines governing non-deliveiy of mail. See generally USPS, Domestic Mail Manual VFOIO (Issue 58, updated 10-14-04). The Domestic Mail Manual can be accessed online at http://www.usps.com/publications/manuals/welcom.htm. By way of example, mail is endorsed "Unclaimed” when the addressee has abandoned or failed to call for mail, while mail is endorsed “Attempted — Not Known” when delivery has been attempted, but the addressee is not known at the place of address.
. In its motion for summary judgment the PTD referred the district court to various "findings" that the district court had included in its orders granting summary judgments in favor of W & P and the BCTO. These orders were prepared by counsel for W & P and the BCTO. We once again emphasize that it is not necessary, nor is it even proper, for orders granting summary judgment to include findings of fact because such findings are inconsistent with the very premise of a motion for summary judgment. Durham v. Southwest Developers Joint Venture, 2000-NMCA-010, ¶ 45, 128 N.M. 648, 996 P.2d 911. We do not mean, however, to discourage district courts from designating each material fact as to which the court has determined there is no genuine issue. | [
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OPINION
SUTIN, Judge.
{1} We are presented with another circumstance in which we must determine when a statutory limitations period begins to run in a medical malpractice case. The district court applied NMSA 1978, § 41-4-15(A) (1977), contained in the Tort Claims Act, NMSA 1978, §§ 41 — 4—1 to -29 (1976, as amended through 2004). In the application of Section 41^1-15(A), Plaintiff sought to apply the discovery rule. Defendant fought against application of the discovery rule. The district court determined that, even though Plaintiff was unaware of the record, the statute began to run at the point when an EMT/paramedie record was created that mentioned a subject that, if investigated further would, as later determined, have led to a possible cause of death.
{2} The issue requires us to interpret Section 41-4-15(A) by analyzing its language and any legislative intent behind its enactment. In addition, we must discuss medical malpractice cases that interpret not only Section 41 — 4-15(A), but also other statutes that have been applied to medical malpractice claims. Those other statutes are the general personal injury statute of limitations, NMSA 1978, § 37-1-8 (1976); the Medical Malpractice Act statute of repose, NMSA 1978, § 41-5-13 (1976); and the Tort Claims Act claims notice statute, Section 41-4-16.
{3} Once pieced together, the jurisprudential puzzle of judicial tolling decisions does not show a definitive path to follow for the result in the case before us. However, a path must be chosen. Historically, Sections 41 — 4-15(A) and 41-5-13 were enacted while the “time of the negligent act” rule was in force in medical malpractice cases. See Roybal v. White, 72 N.M. 285, 287, 383 P.2d 250, 252 (1963) (applying the “time of the negligent act” rule), overruled by Roberts v. Southwest Cmty. Health Servs., 114 N.M. 248, 837 P.2d 442 (1992). This fact, along with the similarity in language between these two statutory provisions and the change in the judicial tolling landscape by Cummings v. X-Ray Associates of N.M., P.C., 1996-NMSC-035, 121 N.M. 821, 918 P.2d 1321, leads us to conclude that Section 41 — 4-15(A) is an occurrence rule and that the discovery rule is not to be applied. Thus, we affirm the district court’s summary judgment against Plaintiff. We therefore need not address Plaintiffs second issue of whether her diligence in discovering the alleged cause of the injury is a question of fact precluding summary judgment.
BACKGROUND
{4} Defendant Philip G. Zager, M.D., worked as the director of the Dialysis Clinic, Inc., a private kidney dialysis facility located in Albuquerque, New Mexico (the clinic), pursuant to a contract between the University of New Mexico and the clinic. He was a public employee employed by the University of New Mexico Hospital, a governmental entity.
{5} On May 17, 1999, while undergoing kidney dialysis at the clinic, Betty Varela (decedent) began having severe problems breathing. She was taken off the dialysis equipment and transported by ambulance with EMT/paramedics to Presbyterian Hospital (the hospital), where she died shortly after arrival. After learning that decedent had a medical problem, Plaintiff, the decedent’s sister, went to the clinic and then to the hospital. Plaintiff made inquiries at the clinic and at the hospital regarding decedent’s condition. At some point, she was informed by personnel at the office of the medical investigator (OMI) that decedent died of an allergic reaction to a prescription drug she was taking. Plaintiff hired an attorney and in early October 1999 obtained copies of the autopsy report and the OMI’s report of findings.
{6} The autopsy report explained that decedent died of angioedema (swelling) of the face, throat, and tongue due to an idiosyncratic drug reaction to lisinopril. The OMI’s report of findings stated the same conclusion as to the cause of death. Lisinopril is a prescription drug decedent was taking and to which decedent had previously experienced a reaction in 1998. The autopsy report also indicated that Defendant’s investigation of the clinic’s dialysis equipment and fluids showed “no abnormalities in the tubing, machines, or composition of the fluid.” Attached to the autopsy report was a toxicology report. The autopsy report found nothing of significance in the toxicology report.
{7} In October 1999, Plaintiff requested the clinic’s medical records relating to decedent. For reasons unexplained in the briefs, Plaintiff did not get the records until September 14, 2000. In August 2000, Plaintiff requested copies of the records of the EMT/paramedics who transported decedent to the hospital. These records indicated that a staff member of the clinic told one of the paramedics that decedent was possibly suffering from an allergic reaction to chlorine in her blood. Another paramedic’s report indi cated he was told there was chlorine in the decedent’s blood.
{8} Plaintiff filed the present action on March 25, 2002, against Defendant, the clinic, and others. In July 2002, through discovery, Plaintiff obtained the OMI’s investigation log indicating there had been an investigation on allegations that a chlorine-based solution had been used to clean the dialysis- equipment before decedent used it, but that an examination of the equipment showed no contamination. The log also indicated that there was no hemolysis in decedent’s blood to indicate chlorine contamination.
{9} Decedent died on May 17, 1999. Section 41-4-15(A) is a two-year statute. Two years from May 17, 1999, was May 17, 2001. Plaintiff first learned of the possibility of chlorine being a cause of death in August 2000, but did not file the action until March 2002. Plaintiffs action was filed some ten months after two years had elapsed from the date of death. However, it was filed within two years of the date Plaintiff asserts she first should have discovered, using reasonable diligence, that chlorine might have been a causative factor. The district court granted summary judgment in favor of Defendant, holding that Section 41-4-15(A) barred Plaintiffs claim. On appeal, Plaintiff asserts that the district court erred in declining to apply the discovery rule and thus, denying her claim.
DISCUSSION
{10} Section 41-4-15(A) reads:
Actions against a governmental entity or a public employee for torts shall be forever barred, unless such action is commenced within two years after the date of occurrence resulting in loss, injury or death, except that a minor under the -full age of seven years shall have until his ninth birthday in which to file. This subsection applies to all persons regardless .of minority or other legal disability.
{11} Plaintiff relies primarily on Roberts in which neither the Tort Claims Act nor the Medical Malpractice Act applied. Roberts adopted the discovery rule in applying Section 37-1-8 to a medical malpractice claim. Roberts, 114 N.M. at 250, 254, 256, 837 P.2d at 444, 448, 450. Plaintiff argues that the Roberts discovery rule applies to all medical malpractice claims not falling under the Medical Malpractice Act, and thus the discovery rule applies to Defendant. Plaintiff also argues that cases arising under the Tort Claims Act support her contention that the discovery rule applies in the application of Section 41-4-15(A) to medical malpractice claims.
{12} Defendant argues that Roberts does not apply because Roberts was decided under Section 37-1-8, while the Tort Claims Act limitations statute, Section 41-4-15(A) controls this ease. Defendant asserts that, pursuant to cases arising under the Tort Claims Act, Section 41-4-15(A) begins to run “when the act heralding the possible tort inflicts a damage which is physically objective and ascertainable,” or “when the plaintiff begins to experience symptoms, not on a subsequent date when the cause of the symptoms is discovered.” (Internal quotation marks and citation omitted.) Defendant argues that because decedent’s death manifested and was ascertainable on May 17, 1999, the statute ran two years from that date. Defendant further argues that to apply Roberts would be contrary to the plain language of Section 41-4-15(A) that the statute begins to run at “the date of occurrence resulting in loss, injury or death.” In order to place the parties’ arguments in context, we briefly here distinguish between the discovery rule and the occurrence rule and then give a synopsis of Roberts and the Tort Claims Act cases predating Roberts. Later in this opinion we will discuss these eases in more detail to determine if they warrant application of the discovery rule to Section 41-4-15(A).
The Distinction Between the Discovery Rule and the Occurrence Rule
{13} The Court in Cummings stated that “[t]wo basic standards determine the beginning of the time period in which a patient must file a claim for medical malpractice. One is sometimes called the ‘discovery rule[,]’ ... [and] [t]he other standard is sometimes called the ‘occurrence rule.’ ” 1996-NMSC-035, ¶ 47, 121 N.M. 821, 918 P.2d 1321. While the discovery rule focuses on the date the injury was discovered, the occurrence rule “fixes the accrual date at the time of the act of medical malpractice even though the patient may be oblivious of any harm.” Id.
{14} The Cummings Court interpreted the limitations period in the Medical Malpractice Act, Section 41-5-13, to be an occurrence rule, rather than a discovery rule. Cummings, 1996-NMSC-035, ¶¶ 50-51, 121 N.M. 821, 918 P.2d 1321. Further, the Cummings Court distinguished between a statute of limitations and a statute of repose, stating that while “[a] statute of limitations begins to run when the cause of action accrues, the accrual date usually being the date of discovery!,] ... [a] statute of repose runs from a statutorily determined triggering event.” Id. ¶¶ 49-50. The Court held that, according to the plain language of Section 41-5-13, the statute is a statute of repose and the triggering event is the act of malpractice. Cummings, 1996-NMSC-035, ¶¶48, 50, 121 N.M. 821, 918 P.2d 1321.
The Tort Claims Act Cases and Roberts
{15} The Tort Claims Act cases predate Roberts. The two most applicable are Emery v. University of N.M. Medical Ctr., 96 N.M. 144, 628 P.2d 1140 (Ct.App.1981), and Long v. Weaver, 105 N.M. 188, 730 P.2d 491 (Ct.App.1986). Emery was a claims notice case decided under Section 41-4-16(A) which requires a claimant to provide notice of his or her claim within ninety days of “an occurrence giving rise to a claim.” § 41^á-16(A); Emery, 96 N.M. at 148-49, 628 P.2d at 1144-45. Long, which followed Emery, was decided based on Section 41-4-15(A). Long, 105 N.M. at 189, 730 P.2d at 492. Emery stemmed from Peralta v. Martinez, 90 N.M. 391, 392, 564 P.2d 194, 195 (Ct.App.1977), a pre-Medical Malpractice Act case decided under NMSA 1953, § 23-1-8 (1929), recodified without change at NMSA 1978, § 37-1-8 (1976). Both Emery and Long applied the holding in Peralta that the statute of limitations begins to run on a claim for medical malpractice from the time the “injury manifests itself in a physically objective manner and is ascertainable.” Long, 105 N.M. at 191, 730 P.2d at 494; Emery, 96 N.M. at 149, 628 P.2d at 1145; Peralta, 90 N.M. at 394, 564 P.2d at 197. We refer to this rule as the “Peralta rule” in this opinion. By adopting the Peralta rule, Emery and Long chose not to follow the “time of the negligent act” rule applied in Roybal. See Long, 105 N.M. at 191, 730 P.2d at 494; Emery, 96 N.M. at 148-49, 628 P.2d at 1144-45.
{16} Roberts held that, because the defendant was not a qualified healthcare provider under the Medical Malpractice Act, NMSA 1978, §§ 41-5-1 to -29 (1976, as amended through 1997), the applicable statute was the general statute of limitations governing personal injuries, Section 37-1-8, rather than the specific provision in the Medical Malpractice Act, Section 41-5-13. Roberts, 114 N.M. at 254, 837 P.2d at 448. Roberts adopted the discovery rule, reciting it as “the cause of action accrues when the plaintiff knows or •with reasonable diligence should have known of the injury and its cause.” Id. at 257, 837 P.2d at 451. Roberts overruled Roybal, expressly and finally closing the door on the “time of the negligent act” rule when applying Section 37-1-8 to medical malpractice claims. Roberts, 114 N.M. at 255, 837 P.2d at 449. Like Emery, Roberts looked to Peralta, reciting Peralta’s holding to be “that a cause of action accrues when a physically objective and ascertainable injury to the plaintiff occurs.” Roberts, 114 N.M. at 254, 837 P.2d at 448. However, in adopting the discovery rule, Roberts did not express that it was changing, distinguishing, or disfavoring the Peralta rule. See id. at 254-57, 837 P.2d at 448-51. Roberts appears to have left Peralta as it stood, proceeding apart from Peralta to adopt the discovery rule. See Roberts, 114 N.M. at 254-57, 837 P.2d at 448-51.
Standard of Review
{17} There exist no disputed facts on this issue. Our review of summary judgment is, therefore, de novo. Bamcastle v. Am. Nat’l Prop. & Cas. Cos., 2000-NMCA-095, ¶ 5, 129 N.M. 672, 11 P.3d 1234.
Interpreting Section 41-4-15(A)
{18} We interpret Section 41-4-15(A) under the rules laid out by our Supreme Court in Cummings:
When interpreting statutes, our responsibility is to search for and give effect to the intent of the legislature. We endeavor to fulfill the statute’s objectives. Our understanding of legislative intent is based primarily on the language of the statute, and we will first consider and apply the plain meaning of such language. This standard is sometimes called, the “plain meaning rule.”
1996-NMSC-035, ¶44, 121 N.M. 821, 918 P.2d 1321 (citations omitted); see also Regents of Univ. of N.M. v. Armijo, 103 N.M. 174, 175, 704 P.2d 428, 429 (1985) (interpreting Section 41-4-15(A) and stating that “[the] Court must attempt to ascertain the intent of the Legislature and should interpret words used according to their plain, literal meaning, provided such an interpretation does not result in injustice, absurdity, or contradiction”). When the statute in question is from a more comprehensive act, the court is to “read the act in its entirety and construe all the provisions together and attempt to view them as a harmonious whole.” Cummings, 1996-NMSC-035, ¶ 45, 121 N.M. 821, 918 P.2d 1321. “[I]f the language of [the] statute is not ambiguous,, the literal meaning of the words must be applied.” Id. (internal quotation marks and citation omitted); Jaramillo v. State, 111 N.M. 722, 727, 809 P.2d 636, 641 (Ct.App.1991) (‘We decline plaintiffs invitation to read language into the statute that is not there.”). We should not “read words into a statute unless they are necessary to make the statute conform to the obvious intent of the legislature.” State v. Mendoza, 115 N.M. 772, 774, 858 P.2d 860, 862 (Ct.App.1993).
1. The Language of Section 41-4-15(A)
{19} In determining whether Section 41- ■ 4-15(A) is a discovery rule, we are guided by the Supreme Court’s analyses of the language of Sections 37-1-8 and 41-5-13 in Roberts and Cummings, respectively. Section 37-1-8 states: “Actions must be brought ... for an injury to the person ... within three years.” Roberts looked at this language and found that application of the discovery rule was warranted. 114 N.M. at 255-56, 837 P.2d at 449-50 (“Section 37-1-8 does not state that the limitation period runs from the time of the wrongful act.” (internal quotation marks omitted)). On the other hand, Section 41-5-13 states: “No claim ... may be brought against a health care provider unless filed within three years after the date that the act of malpractice occurred.” (Emphasis added.) The Cummings Court found no reason “to depart from the plain meaning of Section 41-5-13 in construing its language,” and thus held that Section 41-5-13 was an occurrence rule and not a discovery rule. Cummings, 1996-NMSC-035, ¶¶ 46, 48,121 N.M. 821, 918 P.2d 1321.
{20} Section 41-4-15(A) states: “Actions against a governmental entity or a public employee for torts shall be forever barred, unless such action is commenced within two years after the date of occurrence resulting in loss, injury or death.” (Emphasis added.) The language of Section 41-4-15(A) is very similar, but not identical, to the language in Section 41-5-13. Compare § 41-4-15(A), with § 41-5-13. The language of Sections 41-4-15(A) and 41-5-13 are both very different from the language of Section 37-1-8. Compare §§ 41 — 1-15(A), and 41-5-13, with § 37-1-8. Further, the Tort Claims Act was enacted the same year as the Medical Malpractice Act, in 1976; however, the Tort Claims Act does not only address malpractice. It also addresses negligence of government employees in the construction and maintenance of highways, violations of property or constitutional rights by law enforcement officers, and a host of other claims. See §§ 41 — 4-5 to -12. Thus, in framing Section 41-4-15(A), the Legislature could not simply state “the date that the act of malpractice occurred,” as did the Medical Malpractice Act. § 41-5-13. Instead, it stated “the date of occurrence resulting in loss, injury or death,” presumably in order to cover all of the possible claims as to which governmental immunity was waived. § 41-4-15(A). Moreover, the temporal focus of Section 41 — 1-15(A) seems to be on the date of the occurrence rather than the loss, injury, or death, making it considerably more like Section 41-5-13 than Section 37-1-8. This suggests that, just as the Cummings Court interpreted the plain language of Section 41-5-13 to be an occurrence rule, we should also interpret the plain language of Section 41-4-15(A) to be an occurrence rule. See Cummings, 1996-NMSC-035, ¶¶ 50-51, 121 N.M. 821, 918 P.2d 1321; see also State v. Davis, 2003-NMSC-022, ¶ 12,134 N.M. 172, 74 P.3d 1064 (“The rule that statutes in pari materia should be construed together has the greatest probative force in the case of statutes relating to the same subject matter passed at the same session of the Legislature.”).
2. The Legislative Intent Behind and Historical Context of Section 41-4-15(A)
{21} Section 41-4-15(A) in the Tort Claims Act, like Section 41-5-13 in the Medical Malpractice Act, is part of a broad statutory scheme enacted to implement a particular legislative policy. An important policy behind the Medical Malpractice Act was to attempt to manage a perceived medical malpractice crisis in New Mexico. Roberts, 114 N.M. at 251, 837 P.2d at 445; see Cummings, 1996-NMSC-035, ¶40, 121 N.M. 821, 918 P.2d 1321 (“[Section 41-5-13] is reasonably related to important governmental interests. ... New Mexico reformed its medical malpractice laws in 1976 in response to a much discussed medical malpractice crisis.”). Important policies underlying enactment of the Tort Claims Act were to protect the public treasury, to enable the government to function unhampered by the threat of legal actions that would inhibit the administration of traditional state activities, and to enable the government to effectively carry out its services. Garcia v. Albuquerque Pub. Schs. Bd. of Educ., 95 N.M. 391, 394, 622 P.2d 699, 702 (Ct.App.1980). Other legislative purposes underlying the Tort Claims Act were expressed in Jaramillo in the context of an equal protection issue. In discussing the fact that Section 41-4-15(A) did not have a tolling provision for persons under a legal disability, the Court gave two reasons why the Legislature could have legitimately chosen that course. Jaramillo, 111 N.M. at 726, 809 P.2d at 640.
First, the legislature could reasonably be concerned that there are more claims against governmental than private entities, given the size and far-flung nature of state government operations. This directly increases both the burden of investigating potential claims and the danger of stale claims. Second, the lack of a tolling provision advances the state’s interest in predicting and controlling its potential liabilities from year to year. Both of these are legitimate, rational distinctions that are directly related to the failure to provide a tolling period for persons who are mentally incapacitated.
Id.; see also Armijo, 103 N.M. at 176, 704 P.2d at 430 (noting that to broaden the limitations period in the Section 41-4-15(A) exception relating to minors “would significantly broaden this statute and undermine the Legislature’s intent to establish a measure of repose and to protect to some extent the State’s financial resources from stale claims”).
{22} Further legislative intent can be gleaned from the fact that when the Legislature enacted the Tort Claims Act, it provided specific waivers of immunity from a variety of tort claims, including, but not limited to, bodily injury claims, and specifically including a waiver applying to malpractice actions against public healthcare providers. See §§ 41-4-5 to -12. While permitting specific types of claims through express immunity waivers, the Legislature simultaneously enacted the two-year statute found in Section 41_4_15(A) instead of leaving applicable the three-year personal injury statute of limitations contained in Section 37-1-8 or wording Section 41-4-15(A) in a similar way. Additionally, Section 41-4-15(A) contains a minority tolling provision different than that “which tolls the general statute of limitations.” Tafoya v. Doe, 100 N.M. 328, 331, 670 P.2d 582, 585 (Ct.App.1983) (internal quotation marks and citation omitted). Compare § 41-4-15(A), with NMSA 1978, § 37-1-10 (1975).
{23} In addition, application of the discovery rule in the limited circumstance of medical malpractice would likely open the door to application of the discovery rule as to all tort claims assertable under the Tort Claims Act. We have no indication that the Legislature intended that result, and we think it is doubtful that the Legislature did intend that re- suit. Nor do we have any indication that, in enacting the Tort Claims Act and the limitations period in Section 41-4-15(A), the Legislature intended to grant leave for invocation by this Court of a discovery rule exception in the face of the clear, mandatory statutory language that “[a]ctions against a ... public employee for torts shall be forever barred, unless such action is commenced within two years after the date of occurrence resulting in loss, injury or death,” and the fairly stern requirement that the limitation period apply to “all persons regardless of minority or other legal disability.” § 41-4-15(A).
{24} That a result may be harsh in some circumstances cannot dictate the outcome of a case. Cummings held that Section 41-5-13 is an occurrence rule, not permitting a discovery rule exception, even though the result was “so harsh that the limitations period can run on a potential malpractice claim before the claim even comes into existence,” and stating that “[ejourts often point out that it is not their responsibility to inquire into the harshness of a legislative enactment, the strategy behind a legislative policy, or even the wisdom of a legislative solution to a particular problem.” Cummings, 1996— NMSC-035, ¶ 59, 121 N.M. 821, 918 P.2d 1321; see also Jaramillo, 111 N.M. at 727, 809 P.2d at 641 (interpreting Section 41-4-15(A) to not include or allow tolling or otherwise fashion an equitable remedy despite the plaintiffs argument that the denial would be unjust).
{25} Last, it is important to note another aspect of the historical context of Section 41-4-15(A). Roybal determined in 1963 that under the general statute of limitations for personal injuries, then Section 23-1-8, “a cause of action ... accrues at the time of the wrongful act causing the injury.” Roybal, 72 N.M. at 287, 383 P.2d at 252. This rule, referred to here as the “Roybal rule,” focused on the date of the negligence regardless of when the injury was discovered. Id. Section 41-5-13, enacted in 1976, only a year before the enactment of Section 41-4-15(A), essentially codified the Roybal rule that “a cause of action ... accrues at the time of the wrongful act causing the injury” in medical malpractice cases. Roybal, 72 N.M. at 287, 383 P.2d at 252; see § 41-5-13; Roberts, 114 N.M. at 252, 837 P.2d at 446; Armijo v. Tandysh, 98 N.M. 181, 184, 646 P.2d 1245, 1248 (Ct.App.1981) (stating, regarding Section 41-5-13, “the legislative intent was to continue the limitation period stated in Roybal”), overruled on other grounds by Roberts, 114 N.M. 248, 837 P.2d 442.
{26} When added together, all of these clues of the Legislature’s intent when enacting Section 41-4-15(A) indicate that the rule is an occurrence rule, not a discovery rule.
Case Law Interpreting Section 41-4-15(A)
{27} Despite the fact that the language in, the legislative intent behind, and the historical context of Section 41-4-15(A) suggest that it is an occurrence rule, Plaintiff argues that “[ujnder any interpretation of [Section] 41-4-15, the cause of action in a medical malpractice case against a state employee does not accrue until the basis for the action is discoverable through reasonable diligence.” Defendant argues that no Section 41-4-15(A) case yet has applied the discovery rule and that application of the discovery rule to Section 41^4-15(A) would require reading into the statute language that is not there. In order to address these arguments, we find it necessary to more thoroughly discuss several medical malpractice cases interpreting Sections 37-1-8, 41-5-13, 41-4-15, and -16. We do so in chronological order.
1. The Case Law
{28} In 1977 this Court decided Peralta. The medical malpractice incident in Peralta occurred before the enactment of the Medical Malpractice Act in 1976; therefore, that Act was not at issue. Peralta, 90 N.M. at 392-93, 564 P.2d at 195-96. Peralta is the original imprint for the Section 37-1-8 and Tort Claims Act cases that came later. See, e.g., Roberts, 114 N.M. at 255, 837 P.2d at 449 (discussing Peralta); Long, 105 N.M. at 191, 730 P.2d at 494. Peralta involved a cottonoid left in the plaintiffs body following a surgery. Peralta, 90 N.M. at 392, 564 P.2d at 195. The complaint alleged “that the injuries suffered by plaintiff because of the cottonoid were inherently unknowable to plaintiff.” Id. at 394, 564 P.2d at 197. In fact, the cottonoid was not discovered until a second surgery two years after the cottonoid was left in the plaintiffs body. Id. at 392, 564 P.2d at 195. The complaint was filed within the statute of limitations if the statute began to run on the date of the second surgery, but not if it began to run on the date that the cottonoid was left in the plaintiffs body. Id. The district court denied the doctor’s motion for summary judgment. Id.
{29} The applicable statute in Peralta was Section 23-1-8 (now codified at Section 37-1-8), the same statute at issue in Roybal. Peralta, 90 N.M. at 392, 564 P.2d at 195; see Roybal, 72 N.M. at 286, 383 P.2d at 251. The Peralta Court declined to apply the Roybal rule, holding that Roybal misstated the law as to when Section 23-1-8 began to run. Peralta, 90 N.M. at 392-93, 564 P.2d at 195-96 (“[T]he Roybal holding is not a correct statement of when the limitation period begins to run....Roybal conflicts with Kilkenny [v. Kenney, 68 N.M. 266, 361 P.2d 149 (1961) ], yet Roybal relies on Kilkenny as authority!)]”). See generally Kilkenny, 68 N.M. at 270, 361 P.2d at 151 (holding that, under Section 23-1-8, the statute runs “three years from the date of the injury”). Rather, Peralta held that “the limitation period begins to run from the time the injury manifests itself in a physically objective manner and is ascertainable.” Peralta, 90 N.M. at 394, 564 P.2d at 197 (emphasis omitted).
{30} However, the Peralta Court stated that its manifestation and ascertainable rule was not “the ‘discovery’ rule.” Id.; see also Loesch v. Henderson, 103 N.M. 554, 555, 710 P.2d 748, 749 (Ct.App.1985) (“New Mexico does not have a discovery rule.”). The only attempt the majority in Peralta made to clarify its statement that it was not adopting a discovery rule was to discuss an out of state case, stating that “[i]n Layton, [ ] the limitation period did not run from ‘discover;^ of the hemostat in 1966, the limitation period was held to run from 1965 ‘when the plaintiff first experienced pain caused by the unknown foreign object.’ ” Peralta, 90 N.M. at 394, 564 P.2d at 197 (citing Layton v. Allen, 246 A.2d 794 (Del.1968)). The Peralta Court then held that because the doctor did not show that the presence of the cottonoid could have been discovered before the date of the second surgery, the doctor had not shown that the injury had manifested itself and was ascertainable prior to that date; thus the doctor’s motion for summary judgment was properly denied by the district court. Id.
{31} Four years later, in 1981, this Court applied the Peralta rule to Section 41-4-16(A), the claims notice provision of the Tort Claims Act. Emery, 96 N.M. at 149, 628 P.2d at 1145; see § 41-4-16(A). In Emery, the plaintiffs claimed medical malpractice as the cause of brain damage suffered by their child shortly after the child’s birth. 96 N.M. at 146, 628 P.2d at 1142. The defendant asserted that the mother was informed of the malpractice on March 2, 1979, but the plaintiffs contended they were not informed that the child definitely had brain damage and that the brain damage was related to the act of malpractice until January 24, 1980. Id. at 148, 628 P.2d at 1144. The parents gave notice on February 29, 1980. Id. The defendant contended that the act of malpractice was the “occurrence” under Section 41-4-16(A), and that the plaintiffs’ claim was barred because notice was not given within ninety days of that date. Emery, 96 N.M. at 148, 628 P.2d at 1144.
{32} Viewing Peralta as applicable precedent, the Emery Court determined that “there was no occurrence giving rise to a claim until [the child’s] injury manifested itself in a physically objective manner and was ascertainable” and the evidence on summary judgment “show[ed] this to be a question of fact.” Emery, 96 N.M. at 149, 628 P.2d at 1145 (emphasis omitted). Because Peralta applied its rule to a statute of limitations, the Court in Emery held the Tort Claims Act claims notice requirement in Section 41-4-16(A) and the limitations provision in Section 41-4-15(A) were similar enough to each other that the Peralta manifestation-and-ascertainable rule should apply to the claims notice requirement. Emery, 96 N.M. at 149, 628 P.2d at 1145 (internal quotation marks omitted).
{33} In 1984 this Court addressed the question of whether the Peralta rule applied to Section 41-5-13. In Irvine v. St. Joseph Hospital, Inc., 102 N.M. 572, 574-75, 698 P.2d 442, 444-45 (Ct.App.1984), this Court held that the plain language of Section 41-5-13 precluded application of the Peralta rule because, while other statutes, including Sections 37-1-8 and 41-4-15(A), were worded in terms of injury, there was no such language in Section 41-5-13. The Court stated that it could “not read language into a statute that is not there.” Irvine, 102 N.M. at 575, 698 P.2d at 445 (internal quotation _ marks and citation omitted).
{34} The next year the Supreme Court addressed the same question in Kern v. St. Joseph Hospital, Inc., 102 N.M. 452, 697 P.2d 135 (1985). Kern held that the Peralta rule did not apply to Section 41-5-13 because (1) Peralta was decided under Section 37-1-8 rather than Section 41-5-13, and (2) Section 37-1-8 is distinguishable from Section 41-5-13 in that Section 37-1-8 refers to an injury, while Section 41-5-13 only refers to the act of malpractice. Kern, 102 N.M. at 455, 697 P.2d at 138. Our Supreme Court held that the plain language of Section 41-5-13 precluded resorting to construing the statute. Id.
{35} In 1986 this Court directly addressed the question of when the statute of limitations in the Tort Claims Act, Section 41-M-15(A), begins to run. The Long Court stated: “We have recognized that under the Tort Claims Act the limitation period commences when an injury manifests itself and is ascertainable, rather than when the wrongful or negligent act occurs.” 105 N.M. at 191, 730 P.2d at 494. This Court then held that a genuine issue of material fact existed “on the question of whether the injury [decedent] suffered was physically manifest and ascertainable prior to her death” because of the lack of clarity as to when the condition resulting from the alleged act of malpractice became distinguishable from decedent’s various other conditions. Id. at 192, 730 P.2d at 495. The Court in Long declined the defendants’ request to apply the time of the negligent act rule to the Tort Claims Act’s statutory limitations period by distinguishing Kern, on which the defendant “apparently” relied, as being decided in the context of the Medical Malpractice Act. Long, 105 N.M. at 191, 730 P.2d at 494.
{36} In 1992 came Roberts, discussed earlier in this opinion, in which the Supreme Court expressly overruled Roybal, decided in 1963, and adopted the discovery rule in the context of Section 37-1-8. Roberts, 114 N.M. at 254, 256, 837 P.2d at 448, 450. Roberts relied on the analysis in Peralta. Roberts, 114 N.M. at 255, 837 P.2d at 449. Yet Peralta said it was not adopting the discovery rule, while Roberts adopted it. Peralta, 90 N.M. at 394, 564 P.2d at 197; Roberts, 114 N.M. at 256, 837 P.2d at 450. Our Supreme Court also favorably cited the rationale of Chisholm v. Scott, 86 N.M. 707, 709, 526 P.2d 1300, 1302 (Ct.App.1974), an accountant malpractice case, stating that “[although the plaintiff in a medical malpractice case may not require any special knowledge or training to know that she suffers from pain, in the absence of such knowledge or training, she may be unable to ascertain the cause of that pain, i.e., the professional malpractice of a physician.” Roberts, 114 N.M. at 256, 837 P.2d at 450. The Peralta cause of action accrued when “the injury manifests itself in a physically objective manner and is ascertainable.” 90 N.M. at 394, 564 P.2d at 197. However, the Roberts Court stated the rule as “the cause of action accrues when the plaintiff knows or with reasonable diligence should have known of the injury and its came.” 114 N.M. at 257, 837 P.2d at 451 (emphasis added).
{37} Finally, in 1996 the Supreme Court decided Cummings, which again addressed the question of when Section 41-5-13 begins to run. Cummings, 1996-NMSC-035, ¶43, 121 N.M. 821, 918 P.2d 1321. The plaintiff argued that the Supreme Court should interpret the word “occurrence” in the statute as “a continuum encompassing both the act of malpractice and the resulting injury.” Id. ¶ 52. As discussed earlier in this opinion, the Court held that the plain language of the statute established the date of the act of malpractice to be the only relevant factor. Id. ¶ 53. While technically Cummings did no more than reiterate the holdings of Kern and Irvine, the analyses, distinguishing between an “occurrence rule” and a “discovery rule,”
offered a new framework within which statute of limitations cases must be analyzed. Cummings, 1996-NMSC-035, ¶¶ 47-50, 121 N.M. 821, 918 P.2d 1321; see also Kern, 102 N.M. at 455, 697 P.2d at 138 (“The statute clearly starts to run from the time of the occurrence of the act giving rise to the cause of action. Since we find the meaning of this statute unambiguous, there is no need to resort to rules of construction.”); Irvine, 102 N.M. at 574, 698 P.2d at 444 (“The statutory language is not ambiguous. The limitation period began to run from the date of the occurrence of the alleged malpractice.”).
2. Analysis
{38} We do not glean from the foregoing case history any compelling precedent that necessarily controls the outcome in this case. While Roberts is an important case, we do not read it in the all-encompassing manner which Plaintiff urges, that Roberts adopted the discovery rule in all medical malpractice cases not involving non-qualified healthcare providers. Nothing in Roberts requires us to conclude that the discovery rule must be applied when Section 41-4-15(A) is raised as a bar to a medical malpractice claim under the Tort Claims Act.
{39} In addition, the Tort Claims Act eases have gone no further than to follow the Peralta rule. Under the language of Peralta, the rule would be that the statute begins to ran when a plaintiff first feels pain, as Defendant argues. While Emery and Long can reasonably be read to apply the Peralta rule in the same manner as the discovery rule adopted in Roberts, as Plaintiff argues, they avoid any mention of the discovery rule. Roberts was influenced by the Peralta rale but appears to have passed over it for the discovery rale. See Roberts, 114 N.M. at 256-57, 837 P.2d at 450-51. Further, although Roberts might arguably be read as transforming the Peralta rale into the discovery rule, no case, including Roberts, expressly dispels the notion expressed in Peralta and Loesch that the Peralta rule is not the discovery rule. For these reasons, we find Defendant’s argument, that under the Peralta rule the statute begins to ran when the act injuring the plaintiff occurs, a credible one.
{40} To us this case hinges on the plain language and the purposes underlying the Tort Claims Act. See Clark v. Lovelace Health Systems, Inc., 2004-NMCA-119, ¶ 14, 136 N.M. 411, 99 P.3d 232 (“When language in a statute enacted by the legislature is unambiguous, we apply it as written, and any alteration of that language is a matter for the legislature, not for this Court.”). We believe it paramount that the Tort Claims Act cases do not engage in a discussion of the plain language of or the purposes underlying the Tort Claims Act statutory scheme. Neither do they engage in a discussion of legislative intent. Nor did the Court in any of these cases have the Supreme Court’s analyses in Cummings at hand.
{41} When set against the Roybal rule, which was the rale in existence when the Tort Claims Act and Medical Malpractice Act were enacted, the virtually unmistakable conclusion is that the Legislature was codifying the Roybal rule into Sections 41-4-15(A) and 41-5-13. The Roybal rale was that “a cause of action ... 'accrae[d] at the time of the wrongful act causing the injury.” Roybal, 72 N.M. at 287, 383 P.2d at 252 (emphasis added). Section 41-4-15(A) reads, “occurrence resulting in loss, injury or death.” (Emphasis added.) It is reasonable to conclude that the focus in Roybal and the focus of the Legislature in enacting Section 41-4-15(A) was on the wrongful act and its occurrence, not on the injury caused or the resulting injury.
{42} Moreover, the similarities between Sections 41-4-15(A) and 41-5-13 cannot be ignored. Section 41-5-13 reads “after the date that the act of malpractice occurred.” (Emphasis added.) The unmistakable focus under Section 41-5-13 is on the act of malpractice. See Cummings, 1996-NMSC-035, ¶ 52, 121 N.M. 821, 918 P.2d 1321 (stating that the “focus” of the term “occurred” in Section 41-5-13 “is on the act without regard to its consequences”). The reason for the Legislature to clearly single out one type of act stems from the fact that Section 41-5-13, unlike Section 4H-15(A), only concerns one possible claim, namely, that based on medical malpractice, so it did not have to add words such as “causing” or “resulting in,” since the only act or occurrence for which there could be liability was an act of medical malpractice. On the other hand, Section 41 — 4—15(A) required the additional words, “resulting in loss, injury or death,” because the claims allowed under the Tort Claims Act are not limited to only one such as in the Medical Malpractice Act. However, the focus of Section 41-4-15(A) is nonetheless on the act causing the injury; just as in the medical malpractice context the act is the act of malpractice. See § 41-4-15(A). Thus, despite the difference in language between Sections 41-5-13 and 41-4-15(A), the analyses in Cummings that caused the Court to hold Section 41-5-13 to be an occurrence rule, and a statute of repose can reasonably be applied, and, we believe, is appropriately applied to support the same conclusion in regard to Section 41-4-15(A). Further, the analyses and results in Emery and Long were not signals to the Legislature that Section 41-4-15(A) was a discovery rule, so it cannot be argued that the Legislature’s failure to amend the language of that statute means that it acquiesced in such an interpretation.
{43} We do not completely discount the fact that Long, a Tort Claims Act case, decided under Section 41-4-15(A), appears to have read the Peralta rule to apply in the nature of the discovery rule. Nor do we completely discount the fact that our courts have favored application of the discovery rule because of its reasonableness and fairness. Judicial tolling was properly at work when this Court moved from the time of the negligent act rule to the Peralta rule in applying Sections 41-4-15(A) and 41-4-16(A) in Emery and Long. Judicial tolling was also properly at work in Roberts when our Supreme Court applied the discovery rule to Section 37-1-8. These circumstances cannot be ignored.
{44} Nevertheless, in view of the language of Section 41-4-15(A), likely legislative intent, the historical context in which it was enacted, the unclear development of the Peralta rule, and our Supreme Court’s analyses and holding in Cummings, we question the viability of this Court’s apparent application of the Peralta rule as a discovery rule in prior Tort Claims Act eases. See Long, 105 N.M. at 192, 730 P.2d at 495; Emery, 96 N.M. at 149, 628 P.2d at 1145. We are reluctant in the face of Cummings to invoke the next step of judicial tolling, which would be to integrate the discovery rule into Section 41-4-15(A). The Cummings analyses, when applied to the question here, and the apparent intent of the Legislature when enacting Section 41-4-15(A) to conform to the Roybal rule then in existence to make the act (occurrence) causing (resulting in) injury (loss, injury, or death) the focus rather than the cause or the resulting injury as the focus, are constraints within which we feel bound.
The Dissent
{45} The dissent essentially says that the district court and the majority are both right, each for the wrong reason. The dissent sets out what it believes is or should be the right reason: that the discovery rule, not the occurrence rule, applies, and that New Mexico ease law requires the discovery rule to be applied to bar a plaintiffs Tort Claims Act medical malpractice claim if the plaintiff first discovers or should discover the injury’s cause in time to file an action within two years from the date of the injury. The dissent believes, as well, that the parties’ positions and arguments did not raise the issues that the majority has addressed in this Opinion. The dissent raises points that require a recitation of background not needed earlier and a short discussion about the dissent’s view of the discovery rule.
1. The Issues Addressed Were Raised and the Issues Should Be Addressed
{46} The issue below was whether Section 41-4-15(A) was tolled beginning May 17, 1999, and did not begin to run until discovery of the injury and its cause in August 2000. That is the issue on appeal. The issue is not whether, under the discovery rule, Plaintiff cannot obtain relief because she had time to file her action within two years of May 17, 1999, the date of death. In our view, the issue on appeal cannot be reasonably addressed and resolved without analyses of New Mexico case law on the meaning and application of three rules, namely: (1) the manifestation/ascertainable rule developed and applied in Peralta, Long, and Emery; (2) the discovery rule adopted in Roberts; and (3) the occurrence rule described and applied in Cummings.
{47} The proceedings below are important to review. Plaintiff appealed the court’s grant of Defendant’s motion for summary judgment. Defendant’s memorandum in support of his motion for summary judgment set out one argument only: that Section 41-4-15 barred Plaintiffs action because the two-year period commenced when the injury manifested itself, and the injury for which Plaintiff sought compensation became manifest on May 17, 1999, the date of decedent’s death. Plaintiff responded, arguing that Peralta, Long, and Emery supported her position that the injury did not manifest itself and was not ascertainable until at least August 2000. Defendant’s reply repeated what he stated in his original memorandum, arguing Peralta, Long, and Emery to support his position. Oral argument on the summary judgment issue did not change the issue. The district court granted summary judgment because information about chlorine was in the EMT/paramedic records Plaintiff obtained in August 2000 and because those records were in existence and discoverable by Plaintiff on May 17, 1999. The court’s reasoning was:
Okay. The entry [sic — injury] did manifest itself when she died. The EMT record was available the very same day. So I agree with [Defendant], the statute of limitations under the Tort Claims Act commenced to run on the day she passed away. It may have taken you a couple of years to find out why she died, but the records weren’t concealed. They were there. Nobody bothered to check with the EMT, for whatever reason. And I’m not saying anybody was wrong in not doing that, but the records were there. The minute the EMT made the record, everybody knew chlorine was mentioned.
The court did not move beyond that reasoning in denying Plaintiffs motion for reconsideration.
{48} It is very clear that Defendant’s motion for summary judgment raised one issue, and the court granted the motion based on that one issue: whether the date the statute of limitations began to run was May 17,1999, or in August 2000. The district court held that the injury “manifested itself’ on May 17, 1999, when the decedent died and therefore began to run on that date. The court did not discuss the question of whether the injury was also “ascertainable” on May 17, 1999; nor did the court discuss whether Plaintiff knew or should have known of the cause of injury on that date. The court, in fact, left it to Plaintiff to discover the cause of injury later on. The court’s holding begged the question whether the correct law was applied to the facts.
{49} On appeal, Plaintiff argues that the Medical Malpractice Act statute of repose begins to run when the negligence occurred, but that under the Tort Claims Act statute of limitations the discovery rule applies and the statute begins to run when the injury manifests itself and is ascertainable as expressed in Long and Emery. She expressly argues that “the question is whether the statute of limitations in the Tort Claims Act is a statute of repose, as is the statute in the Malpractice Act, or does it run on discovery of the injury and its cause, as in Roberts? ” She also seeks a determination of judicial tolling under the Roberts discovery rule. She argues that Roberts adopted the discovery rule in “all medical malpractice cases that do not come under the Malpractice Act.” Significantly, Plaintiff specifically cited Cummings in her docketing statement, stating:
There are two basic standards to determine the beginning of the time period in which a patient must file a claim for malpractice. One is the occurrence rule and applies to claims against qualified health care providers who come under the protection of the Medical Malpractice Act. The occurrence rule is, in effect, a statute of repose and was passed by the legislature in order to stem the flood of medical malpractice cases. The other standard is the discovery rule. The time period under this rule does not begin to run until the patient discovers, or reasonably should discover, the essential facts of her cause of action.
Plaintiff also raised and discussed Cummings and the occurrence rule in her brief in chief on appeal.
{50} Defendant, on appeal, argues that under the Tort Claims Act the suit must be filed within two years of the date of the occurrence resulting in the injury or death, and that the discovery rule does not apply. Defendant argues that “the cases in which Section 41-4^-15(A) has been interpreted have not demonstrated an inclination to apply the discovery rule in Tort Claims Act cases.” Defendant’s position is that only “the event resulting in harm or injury” is the trigger, and that “[t]o apply the discovery rule to claims governed by Section 41-^4-15(A) would require the court to read into that Section a causation component that is neither express nor reasonably implied from the language.”
{51} Plaintiff combines the Long and Emery manifestation/ascertainable rule .with the Roberts discovery rule. Defendant separates the Long and Emery rules from the discovery rule and contends the Long and Emery rules limit “discovery” to injury and not causation, and the discovery rule does not apply. The district court appears to have accepted Defendant’s argument. The mixture and apparent misunderstanding below of legal precedents and concepts, and the manner in which the judgment appealed was presented to this Court, caused us to address the issues in the manner we have in this Opinion. See infra ¶¶ 2-3. We believe that this case does raise and require us to address the panoply of issues and authorities relating to the manifestation/ascertainable rule, the discovery rule, and the occurrence rule, calling for clarity and application of the various doctrines and analyses in Peralta, Long, Emery, Roberts, and Cummings.
2. The “More Nuanced” Discovery Rule
{52} We understand the discovery rule as it has been applied in New Mexico to be that, when the rule is applied, the statute of limitations is tolled and the cause of action accrues and does not start to run until discovery of the injury and its cause. This is what the eases applying or discussing the discovery rule say. See Cummings, 1996-NMSC-035, ¶ 47, 121 N.M. 821, 918 P.2d 1321 (stating that under the discovery rule “[t]he time period ... does not begin to run.until the patient discovers, or reasonably should discover, the essential facts of his or her cause of action”); Roberts, 114 N.M. at 255, 257, 837 P.2d at 449, 451 (stating that under the discovery rule “the cause of action accrues when the plaintiff discovers or with reasonable diligence should have discovered that a claim exists,” and further that “the cause of action accrues when the plaintiff knows or with reasonable diligence should have known of the injury and its cause”). We do not understand the discovery rule to be that tolling and the start of the running of the statutory period do not occur if the plaintiffs diligent discovery of cause occurs nine months before the two-year period from the date of death.
{53} The dissent cites Martinez v. Showa Denko, K.K., 1998-NMCA-111, ¶¶ 22-25, 125 N.M. 615, 964 P.2d 176, as a ease in which the dissent’s analysis occurred. We do not read Martinez to modify the discovery rule. As we read the holding in Martinez, the law requires a plaintiff to diligently investigate the cause of a medical problem and then to bring a legal action within the statutory period once it began to run after tolling. The plaintiff discovered information in late 1989 or early 1990, and she filed her action in 1996. Id. ¶¶ 10, 22-23. The plaintiff discovered the injury and its cause sufficiently in time to file her cause of action within three full years of the discovery, but she did not file until almost six years after discovery. Id. ¶ 25.
{54} We do not necessarily quarrel with the idea that the discovery rule as it was adopted and has been defined in New Mexico law perhaps should be modified. If the discovery rule, and not the occurrence rule, is ultimately determined by our Supreme Court to apply in this case, the importance of the dissent is that it may assist in obtaining clarification by our Supreme Court of statute of limitations, discovery rule jurisprudence.
CONCLUSION
{55} We interpret the rule in Section 41-4-15(A) to be an occurrence rule, not a discovery rule. We therefore affirm the district court’s summary judgment.
{56} IT IS SO ORDERED.
I CONCUR: RODERICK T. KENNEDY, Judge.
MICHAEL D. BUSTAMANTE, Judge (specially concurring in part and dissenting in part). | [
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OPINION
WECHSLER, Chief Judge.
{1} At issue in this appeal is the scope of an arbitration agreement and the ability of a non-signatory to the agreement to compel arbitration against a signatory. Defendant Lovelace Health Systems (Lovelace) appeals a district court order compelling arbitration but estopping it from arguing the issue of whether a doctor was acting outside the course and scope of his employment with Lovelace when the acts alleged by Plaintiff occurred. We reverse the portion of the order estopping Lovelace from raising the course and scope of the doctor’s employment during the arbitration proceedings. We also reverse the district court’s decision to include Plaintiffs claims against the non-signatory doctor in the arbitration proceedings.
Factual and Procedural History
{2} Plaintiff sued Lovelace for retaliation, negligent hire and retention, constructive discharge, intentional infliction of emotional distress, and violation of the New Mexico Human Rights Act, NMSA 1978, § 28-1-7 (2003). Plaintiff also asserted claims against Dr. Jeffrie Felter alleging assault, battery, and violation of the Human Rights Act. In response to a motion by Lovelace joined by Dr. Felter, the district court entered an order compelling arbitration but estopping Lovelace from arguing at the arbitration hearing that Dr. Felter was acting outside the course and scope of his employment or agency at the time of the incidents. The order also determined that the arbitration agreement applied to Plaintiffs claims against both Lovelace and Dr. Felter.
Arguments on Appeal
{3} Lovelace filed this appeal, arguing that the district court erred by exceeding the scope of the threshold issue of arbitrability, invading the purview of the arbitrator, and depriving Lovelace of a potential defense. Plaintiff argues in her answer brief that the district court properly ruled her claims were arbitrable only if Dr. Felter’s acts were committed within the course and scope of his employment or agency. Plaintiff also argues that, if this Court reverses the issue regarding course and scope, it should rule that her claims against Dr. Felter are not subject to the arbitration agreement.
{4} Dr. Felter argues in his answer brief that he invoked the arbitration agreement at the request of Lovelace based on the presumption that it would accept vicarious liability for any award against him. He asserts that he does not intend to argue that his actions were outside the course or scope of his employment with Lovelace and that the district court’s estoppel ruling should be affirmed. Lovelace responds to Plaintiff by asserting that the language of the arbitration agreement does not require it to concede that the incidents occurred during the course and scope of Dr. Felter’s employment and that its invocation of the arbitration clause should not have been treated as an admission of liability.
{5} We note that the order compelling arbitration of all issues is a final, appeal-able order. See Lyman v. Kern, 2000-NMCA-013, ¶ 9, 128 N.M. 582, 995 P.2d 504.
Plaintiffs First Amended Complaint
{6} Plaintiffs first amended complaint alleges claims against both Lovelace and Dr. Felter, a former Lovelace employee. As against Lovelace, Plaintiff claims: retaliation because she was reprimanded and placed on administrative leave after filing discrimination charges with the Human Rights Division of the New Mexico Department of Labor; negligent hire and retention because Lovelace knew or should have known that its employees continued to harass Plaintiff in retaliation for her complaint with the Human Rights Division; constructive discharge because Plaintiff had filed the discrimination complaint and because she was physically assaulted by another employee; and intentional infliction of the emotional distress ber cause Lovelace failed to properly supervise and control its employees and provide a safe working environment. As against Dr. Felter, Plaintiff alleges assault and battery, both occurring in February 2000. Plaintiff asserts that both Lovelace and Dr. Felter violated the Human Rights Act by subjecting Plaintiff to sexual harassment. The incidents alleged in the complaint all occurred at the work place.
The Arbitration Agreement
{7} Lovelace adopted an “Employment Dispute Arbitration Policy” (arbitration agreement) in 1999. The “Statement of Policy” sets out its intent:
In the interest of fairly and quickly resolving employment-related disagreements and problems, and applying the important public policies expressed in the Federal Arbitration Act, 9 U.S.C. Sec. 1 et seq., CIGNA Healthcare Division’s policy is that arbitration by a neutral third-party is the required and final means for the resolution of any employment related legal claim not resolved by the Division’s internal dispute resolution process____ This policy is intended to prevent an employee from going to court over employment related disputes; it is not intended to take away any other rights.
The arbitration agreement defines the scope of the arbitration procedure as:
This policy covers only serious employment-related disagreements and problems, which are those that concern a right, privilege or interest recognized by applicable law. Such serious disputes include claims, demands or actions under Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1866, the Civil Rights Act of 1991, the Equal Pay Act, the Age Discrimination in Employment Act, the Employee Retirement Income Security Act of 1974, the Fair Labor Standards Act, the Rehabilitation Act of 1973, the Americans with Disabilities Act, FMLA, and any other federal, state or local statute, regulation or common law doctrine, regarding employment discrimination, conditions of employment or termination of employment.
The arbitration agreement explains more than once that it “is intended to substitute final and binding arbitration ... for going to court” and does not prohibit an employee from filing a charge with, or seeking redress from, the National Labor Relations Board or other state or federal agencies.
Interpretation of the Arbitration Agreement
{8} The terms of the arbitration agreement govern the scope of the arbitration proceedings and are interpreted according to contract law principles and the plain meaning of the language used. See Christmas v. Cimarron Realty Co., 98 N.M. 330, 331, 648 P.2d 788, 790 (1982); Heye v. American Golf Corp., 2003-NMCA-138, ¶ 9, 134 N.M. 558, 80 P.3d 495. When the scope of the arbitration proceedings involves interpreting documentary evidence, as in this case, the matter is a question of law which we review de novo. See California Cas. Ins. Co. v. Garcia-Price, 2003-NMCA-044, ¶ 6, 133 N.M. 439, 63 P.3d 1159; Santa Fe Techs., Inc. v. Argus Networks, Inc., 2002-NMCA-030, ¶ 51, 131 N.M. 772, 42 P.3d 1221.
{9} The arbitration agreement repeatedly uses the words “employment related” to describe the types of disagreements, problems, legal claims, or disputes to be arbitrated. The heart of the current controversy arises from the meaning of “employment related” as used in the arbitration agreement. In deciding that Plaintiffs claims against Dr. Felter were subject to arbitration, the district court reasoned that, “[i]f Dr. Felter was not acting within the scope of his employment or agency with Lovelace, there is a question whether Dr. Felter’s alleged actions would be employment related, and the arbitration provision would not apply.” This reasoning led the district court to prohibit Lovelace from arguing that Dr. Felter was acting outside the course and scope of his employment.
{10} Plaintiff and Dr. Felter argue that the district court properly estopped Lovelace from adopting inconsistent positions. They reason that it is inconsistent to allow Lovelace to invoke the arbitration agreement because the claims are “employment related” and also to allow it to argue that Dr. Felter’s actions were not within the course and scope of his employment. Their position and the decision of the district court rest on the proposition that “employment related” is essentially synonymous with actions that are within the course and scope of employment.
{11} Contract terms are to be given their ordinary, every day meaning unless otherwise indicated. See generally Levenson v. Mobley, 106 N.M. 399, 402, 744 P.2d 174, 177 (1987) (stating the general rule that the words used in a contract will be given their ordinary meaning unless the parties demonstrated an intent to use them differently); Crownover v. Nat’l Farmers Union Prop. & Cas. Co., 100 N.M. 568, 572, 673 P.2d 1301, 1305 (1983) (“Absent express language to the contrary, a court should apply the every day meaning in interpreting the terms of a contract.”). The ordinary, every day meaning of “employment related” is not synonymous with the term “within the course and scope of employment.” We agree with Lovelace that these descriptions have distinct meanings and that “employment related” may include conduct “within the course and scope of employment” but that the one description does not necessarily imply the other.
{12} The phrase “within the course and scope of employment” has been given a very specific meaning in the legal context. In defining “scope of employment,” UJI 13-407 NMRA specifically defines the elements necessary to prove that actions occurred within the course and scope of employment:
An act of an employee is within the scope of employment if:
1. It was something fairly and naturally incidental to the employer’s business assigned to the employee, and
2. It was done while the employee was engaged in the employer’s business with the view of furthering the employer’s interest and did not arise entirely from some external, independent and personal motive on the part of the employee.
Id. In contrast, the plain meaning of “related” is simply “connected by reason of an established or discoverable relation.” See Webster’s Third New International Dictionary 1916 (Unabridged 1993).
{13} To be connected to employment, it is not necessary that the matter be “fairly and naturally incidental to the employer’s business assigned to the employee” or that it be done “with the view of furthering the employer’s interest,” as required by the jury instruction on scope of employment. See UJI 13-407. It is enough that the “employment-related” claim is connected to the claimant’s employment. In this case, to present an arbitrable claim, it is enough that Plaintiff’s claims against Lovelace are connected to her employment with Lovelace. The plain meaning of the terms of the arbitration agreement does not warrant reading into the arbitration agreement a requirement that actions by a co-worker are necessarily “within the course and scope” of that coworker’s employment. See Christmas, 98 N.M. at 332, 648 P.2d at 790 (stating the “well established principle of contract law that courts will not rewrite a contract for the parties”).
{14} Although the issues in this case happen to involve co-workers, the critical facts are that Plaintiffs claims are all connected with her employment with Lovelace, arise out of incidents that occurred at Plaintiffs work place with Lovelace, and relate to con ditions of her employment with Lovelace. With this predicate, the actions of her coworker do not need to be within the course and scope of his employment with Lovelace in order for Plaintiffs complaint to invoke the provisions of the arbitration agreement. It does not matter that the allegations against Dr. Felter are also related to Plaintiffs employment with Lovelace because they occurred at a Lovelace facility while Plaintiff was working. We reverse the district court’s order estopping Lovelace from arguing during the arbitration hearing that Dr. Felter was not acting within the course and scope of his employment.
Plaintiff’s Claims Against Dr. Felter
{15} The district court determined that the arbitration agreement also applies to Plaintiffs claims against Dr. Felter. Plaintiff objects to this determination, asserting that the arbitration agreement is narrow in scope and that the district court erred in including her claims against Dr. Felter. Plaintiff argues that this portion of the order must be reversed because nothing in the arbitration agreement compels one Lovelace employee to arbitrate tort claims against another Lovelace employee. Having reversed on Lovelace’s issue regarding whether Felter’s actions were in the course and scope of his employment, we address Plaintiffs issue about whether her claims against Dr. Felter should be subject to arbitration. See Rule 12-201(0) NMRA (providing for review of an issue raised by an appellee for determination only if the appellate court reverses some or all of the order being appealed).
{16} Generally, third parties who are not signatories to an arbitration agreement are not bound by the agreement and are not subject to, and cannot compel, arbitration. See Pueblo of Laguna v. Cillessen & Son, Inc., 101 N.M. 341, 343-44, 682 P.2d 197, 199-200 (1984); see also Cherry Creek Card & Party Shop, Inc. v. Hallmark Mktg. Corp., 176 F.Supp.2d 1091, 1097 (D.Colo.2001). In extending the arbitration to Dr. Felter, the district court relied on Pritzker v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 7 F.3d 1110 (3d Cir.1993), to the effect that a principal-agent analysis has been applied to in-elude a non-signatory to an arbitration agreement within an arbitration when the interest of the non-signatory is directly related to that of a signatory. See id. at 1122 (holding that a principal’s agents, employees, and representatives were covered under the terms of arbitration agreements that bound the principal). However, we are not persuaded that an agency analysis applies in this case. Although Dr. Felter was an employee of Lovelace, the issue remains as to whether he was acting within the course and scope of his employment with regard to Plaintiffs allegations against him. Therefore, as distinguished from Pritzker, it is not clear that Dr. Felter, as an employee of Lovelace, acted as Lovelace’s agent with regard to his actions that are the subject of Plaintiffs complaint.
{17} Another line of federal cases finds exceptions to the general rule that a non-signatory cannot compel arbitration based on principles of equitable estoppel under two circumstances: (1) when a signatory to the agreement must rely on the terms of the agreement in making a claim against a non-signatory; or (2) when a signatory alleges substantially interdependent and concerted misconduct by both another signatory and a non-signatory, making arbitration between signatories meaningless. See Grigson v. Creative Artists Agency, L.L.C., 210 F.3d 524, 527-28 (5th Cir.2000) (upholding district court decision allowing non-signatory to compel arbitration when complaint asserted tortious interference claims arising in part out of the agreement giving rise to the arbitration and asserted collusive and conspiratorial action on the part of the non-signatories and a signatory); MS Dealer Serv. Corp. v. Franklin, 177 F.3d 942, 947 (11th Cir.1999) (holding that equitable estoppel allowed a non-signatory to compel arbitration when the plaintiffs claims against the non-signatory depended entirely upon a contractual obligation arising from the agreement containing the arbitration clause and alleged a collusive fraudulent scheme on the part of the signatory and non-signatory); see also Long v. Silver, 248 F.3d 309, 320 (4th Cir.2001) (applying the “intertwined claims” test among others to hold that non-signatory may invoke the arbitration clause); McBro Planning & Dev. Co. v. Triangle Elec. Constr. Co., 741 F.2d 342, 344 (11th Cir.1984) (recognizing that a non-signatory may compel arbitration based on estoppel and the intertwined claims test).
{18} Nevertheless, even if we were to assume that a non-signatory to an arbitration agreement can compel arbitration by virtue of equitable estoppel, we do not believe that equitable estoppel is appropriate in this case. See Thomson-CSF, S.A v. Am. Arbitration Ass’n, 64 F.3d 773, 779 (2d Cir.1995) (declining to apply equitable estoppel theory when claim was not “integrally related to the contract containing the arbitration clause”). In Grigson and MS Dealer, the claims had the characteristics of both types of circumstances that the courts recognized as bases for equitable estoppel; the claims were dependent upon the agreement and also alleged substantially interdependent and concerted misconduct. In this ease, neither circumstance is fully present: Plaintiffs claims against Dr. Felter are not alleged to be derived from the agreement between Plaintiff and Lovelace, and Dr. Felter’s alleged conduct, which has not been determined to be within the course and scope of his employment, is not the concerted type of conduct addressed by the Grigson and MS Dealer line of cases. Contra Cicchetti v. Davis Selected Advisors, 2003 WL 22723015 (S.D.N.Y. 2003) (allowing a former supervisor to compel arbitration for sexual harassment claim in an action against former employee for wrongful termination and retaliation for complaining about the supervisor sexual harassment).
{19} Moreover, because arbitration is essentially a matter concerning the agreement of the parties, Grigson and MS Dealer recognize that equitable estoppel is appropriate to avoid rendering meaningless the purpose of the signatories agreement, an arbitration, in the absence of a non-signatory. Grigson, 210 F.3d at 527; MS Dealer, 177 F.3d at 947. But, we do not believe that the parties’ agreement to arbitrate would be rendered meaningless if Dr. Felter were not involved in the arbitration. Although Plaintiffs claims against Lovelace for constructive discharge, intentional infliction of emotional distress, and violation of the New Mexico Human Rights Act, involve Dr. Felter, Plaintiff also asserts claims against Lovelace for retaliation and negligent hire and retention, which appear to involve a previous discrimination claim and subsequent disciplinary action, not involving conduct by Dr. Felter. Despite a level of connectedness, Plaintiffs claims against Dr. Felter for assault and battery can be determined separately from her claims against Lovelace. We cannot say that the intent of the arbitration agreement embraces Plaintiffs forfeiture of her ability to pursue her claims against Dr. Felter through the regular court process. See Pueblo of Laguna, 101 N.M. at 344, 682 P.2d at 200 (declining consolidated arbitration because it was not contemplated by the parties).
Conclusion
{20} We reverse the district court’s order estopping Lovelace from arguing that Dr. Felter was acting outside the course and scope of his employment or agency at the time of the incident alleged. We also reverse the portion of the district court’s order compelling arbitration of Plaintiffs claims against Dr. Felter. We remand to the district court.
{21} IT IS SO ORDERED.
WE CONCUR: A. JOSEPH ALARID and MICHAEL E. VIGIL, Judges. | [
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OPINION
BOSSON, Justice.
{1} Joanna V. (Child) sought to set aside a plea based on her claim of ineffective assistance of counsel. Child claims her defense counsel was ineffective due to an irreconcilable conflict of interest that arose when one attorney served as both her Guardian ad Litem (GAL), during abuse and neglect proceedings, and then as her defense attorney during delinquency proceedings. Although this dual relationship had the potential to become an actual, active conflict of interest, one which merited careful judicial scrutiny, we conclude that the record in this case does not demonstrate an actual conflict. Therefore, with some differences noted in the course of this opinion, we agree with the Court of Appeals in its decision to affirm. BACKGROUND
{2} In August 2000, the Children, Youth and Families Department (CYFD) initiated abuse and neglect proceedings against Child’s mother. Fourteen years old at the time, Child was eventually placed in the custody of the State. An attorney was appointed to serve as Child’s GAL during the proceedings.
{3} In May 2001, Child was involved in a fight at school and was charged with one count of disorderly conduct contrary to NMSA 1978, § 30-20-1(A) (1967). After Child pleaded not guilty, the State amended the charge to one count of public affray contrary to NMSA 1978, § 30-20-2 (1963), to which Child pleaded guilty during delinquency proceedings. Child was given two years probation with a condition that she successfully complete the children’s court’s “Grade Court” program. At each of the delinquency proceedings, Child was represented by the same attorney who was also her GAL in the abuse and neglect proceedings. Throughout the delinquency proceedings, Child remained a ward of the State.
{4} From October through December 2001, Child was detained at various times due to violations of her probation and infractions of Grade Court rules. The State petitioned to revoke Child’s probation on December 19, 2001. The children’s court appointed a new attorney, a public defender, to serve as Child’s defense counsel and ultimately revoked Child’s probation. On January 3, 2002, the public defender filed a motion to withdraw Child’s earlier plea agreement to the charge of public affray. In her motion, Child protested that she had received ineffective assistance of counsel during her plea negotiation because her former defense attorney was also her GAL, placing the attorney in an irreconcilable conflict of interest. After the motion was denied, Child timely appealed, raising her attorney’s conflict of interest as evidence of ineffective assistance of counsel.
DISCUSSION
Conflict of Interest Resulting in Ineffective Assistance of Counsel
{5} Attorneys have a duty of loyalty to their clients, and must avoid conflicts of interest. “The right to effective assistance of counsel free from conflicts of interest is guaranteed by the Sixth Amendment to the United States Constitution.” State v. Sosa, 1997-NMSC-032, ¶ 20, 123 N.M. 564, 943 P.2d 1017; see also Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). When an attorney’s loyalty has been compromised by an actual conflict of interest, “[prejudice is presumed.” Strickland, 466 U.S. at 692, 104 S.Ct. 2052; accord State v. Martinez, 2001-NMCA-059, ¶24, 130 N.M. 744, 31 P.3d 1018. “However, to invoke such a presumption of prejudice, there must be an actual, active conflict that adversely affects counsel’s trial performance; the mere possibility of a conflict is insufficient.” Martinez, 2001-NMCA-059, ¶ 24,130 N.M. 744, 31 P.3d 1018; accord State ex rel. Children, Youth & Families Dep’t v. Tammy S., 1999-NMCA-009, ¶ 20, 126 N.M. 664, 974 P.2d 158 (1998) (remanding for an evidentiary hearing to determine actual conflict and resulting prejudice as grounds for a claim of ineffective assistance of counsel). The Rules of Professional Conduct, Rule 16-107(A) NMRA 2004, describes the prohibition against representing a client when the representation will be adverse to another client, and requires lawyers to explain the conflict to the clients and obtain consent after the consultation in order to continue the common representation. See In re Sheehan, 2001-NMSC-020, ¶¶ 11-13, 130 N.M. 485, 27 P.3d 972 (per curiam).
{6} Our Court of Appeals identified two potential categories of conflicts in Martinez. The first, and most common, category of conflict-of-interest cases occurs when counsel represents two clients with divergent interests in the same matter. A second category of conflicts “may arise when the interests of the client and the attorney diverge.” Id. ¶ 25. If counsel’s duty of undivided loyalty is in any way compromised, such as by personal interests or by loyalties to another party, counsel must avoid representing the client.
What Kind of Conflict did Child Demonstrate?
{7} In evaluating whether a conflict of interest rendered Child’s first defense counsel ineffective, the Court of Appeals reviewed the relevant statutes and concluded that “we find nothing in the statutes relied on by [Child] that prohibits an attorney from acting as a GAL during abuse and neglect proceedings and also serving as the child’s defense attorney in delinquency proceedings.” State v. Joanna V., 2003-NMCA-100, ¶15, 134 N.M. 232, 75 P.3d 832; see also NMSA 1978, § 32A-2-14 (1993) (setting forth the basic rights of a child alleged to be delinquent). The Court also observed that the attorney entered her appearance in the delinquency proceedings as Child’s defense counsel, not as GAL. The Court concluded that Child was represented by conflict-free counsel during the delinquency proceedings, even though the record is ambiguous as to when the attorney stopped serving as GAL. Joanna V., 2003-NMCA-l00, ¶ 13,134 N.M. 232, 75 P.3d 832. Although we do not agree with all of the Court of Appeals’ analysis, we concur nonetheless in its determination that Child failed to demonstrate on the record an actual conflict of interest.
{8} Child made the motion to withdraw her plea. Child alleged ineffective assistance of counsel due to a conflict. Child had the burden of production with respect to some evidence from which the court could assess the nature of the attorney’s relationship with Child and determine the degree of conflict and resulting prejudice, including Child’s awareness and consent to the relationship. Regrettably, at the hearing on her motion Child chose to remain mute. She offered no evidence. Enlightening testimony could have come from the Child’s attorney or from the Child herself, yet neither was called as a witness. For example, the attorney might have admitted to some confusion about her dual roles. Child might have testified that she never wanted to plead guilty but was confused by her attorney’s dual roles. .Any number of hypothetical possibilities arise, but without a record we are left with mere conjecture. Instead, Child’s legal arguments merely assumed the presence of a conflict and its consequences without demonstrating either on the record.
{9} In the absence of a record, we cannot indulge in speculation and surmise. Instead, we rely on what the record does show: that the plea was entered lawfully and the attorney was abiding by Child’s wishes during the delinquency proceedings. The children’s court judge questioned Child extensively about her plea, first asking if she intended to plead guilty. The court advised her of the punitive consequences, the rights she was waiving, and that she would be required to recount her participation in the offense. The court also ascertained the basis for the guilty plea from the attorney, and again questioned Child to ensure that she was fully informed by the attorney, and was acting without any undue influence. Child proceeded to describe the incident that led to the charges. The record before us contains nothing to contradict Child’s version of the events as recounted to the court, or call into question the voluntary nature of her plea.
{10} On this record, we have no basis to reverse Child’s plea or the resulting judgment of the Children’s Court. However, given the gravity of the potential conflict when a GAL in abuse and neglect proceedings also serves as defense counsel in delinquency proceedings, we feel compelled to expand upon the Court of Appeals discussion of the issue. Accordingly, we explore further the pitfalls presented when one attorney assumes the duties of both relationships.
Respective Roles of Guardian Ad Litem and Defense Counsel
{11} The Children’s Code requires a GAL to “zealously represent the child’s best interests with respect to matters arising pursuant to the provisions of the Children’s Code.” NMSA 1978, § 32A-1-7(A) (1995). Subsection D directs the GAL to advance the child’s position to the court “when reasonable and appropriate,” even if the child’s position conflicts with what the GAL thinks should be done. This dual role requires the GAL to consider the child’s viewpoint as well as the child’s best interest, but “[t]he [GAL] is required to advocate the child’s expressed position only to the extent that the child’s desires are, in the [GAL’s] professional opinion, in the child’s best interests.” In re Esperanza M, 1998-NMCA-039, ¶ 36,124 N.M. 735, 955 P.2d 204. The focus of the GAL’s responsibilities is on representing the best interests of the child to the court. See In re Candice Y., 2000-NMCA-035, ¶ 30,128 N.M. 813, 999 P.2d 1045.
{12} In contrast, defense counsel’s role in a delinquency proceeding is to advocate zealously for the client’s position. Although counsel may advise the client on counsel’s view of the client’s best interests, counsel is ultimately required to advance the client’s expressed wishes. The difference between the roles of GAL and defense counsel is described in the committee commentary to Children’s Court Rule 10-108 NMRA 2004.
The major difference between the role of the guardian ad litem in a neglect or abuse case and the role of the accused’s attorney in a delinquency or need of supervision proceeding is that in the former, the guardian ad litem does what he considers to be in the best interests of the child, while in the latter the attorney, although he may advise differently, follows the instructions of his client, even though he may not consider those instructions to be in the client’s best interests. The guardian ad litem has much greater freedom.
Accord Esperanza M., 1998-NMCA-039, ¶ 36,124 N.M. 735, 955 P.2d 204.
{13} Given the natural tension between the roles of GAL and defense counsel, there is a heightened potential that an attorney may become compromised by attempting to do both. The role of GAL requires the attorney to assume an objective posture in evaluating the child’s circumstances, and to identify and strenuously advocate for what the GAL concludes are the best interests of the child. When acting as a defense attorney, however, counsel must adopt the child’s viewpoint and zealously represent the wishes of the child, whether or not counsel necessarily agrees that those wishes represent the child’s best interests. The potential conflict which may arise when the two roles are performed simultaneously can be particularly deleterious to children. Given the necessity of appointing a GAL, the child likely has no other responsible parental figure on whom the child can rely for advice during delinquency proceedings. A child will not likely be able to distinguish, on her own, whether the attorney is acting as her GAL or her defense counsel at any given moment.
{14} We are also impressed by the arguments of Advocacy Inc., amicus curiae in this case. In its brief, Advocacy Inc. emphasizes the conflict between the roles of guardian ad litem and defense counsel, and describes the potential harm to the child when one attorney fulfills both roles. Because of the GAL’s history with the child, the GAL may be in a unique position to advocate for the child in a delinquency proceeding. The GAL provides a voice that may be pivotal to the disposition of a child charged with delinquency. It is a voice that is sometimes best heard on the witness stand testifying on behalf of the child instead of being confined to legal argument and the role of an attorney. See Rule 16-307(A) NMRA 2004 (prohibiting an attorney, except in certain limited circumstances, from acting as an advocate in a trial in which the attorney is likely to be a necessary witness).
{15} As amicus notes,
Indeed, if the child is in foster care and therefore has a GAL, that attorney may be the professional with the longest term, ongoing involvement with the child over time and hence the one with the most in-depth, pertinent information about the child’s experiences that may have a bearing on issues at disposition____
{16} In most cases, the roles are best left separate absent compelling circumstances. Even when an attorney tries conscientiously to educate the child and obtain an informed consent, that may only aggravate the situation. We are dealing, after all, with children, potentially of a very minor age, who we cannot expect to appreciate the subtle shades and nuances of our law that surface when an attorney changes roles. In the eyes of a child, it is not difficult for the duties of an attorney under one relationship to become blurred with the duties of an advocate under another, different relationship.
{17} Notwithstanding our concerns, because the conflict in a case of common representation is potential, not inherent, Child in the case before us had the burden to demonstrate prejudice sufficient to warrant a finding of ineffective assistance of counsel. As previously determined, Child did not show that her attorney’s representation was compromised by an actual, active conflict of interest. It follows that Child did not lay a sufficient foundation for her claim of ineffective assistance of counsel, and the children’s court properly denied her motion to withdraw her plea.
CONCLUSION
{18} We affirm the judgment of the Children’s Court.
{19} IT IS SO ORDERED.
WE CONCUR: PETRA JIMENEZ MAES, Chief Justice, PAMELA B. MINZNER, PATRICIO M. SERNA, and EDWARD L. CHÁVEZ, Justices.
. The legality of the Grade Court program is not before us in this certiorari proceeding. | [
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OPINION
KENNEDY, Judge.
{1} The formal opinion filed on November 19, 2004, is withdrawn. This opinion is filed in its stead.
{2} Plaintiffs appeal from a district court order dismissing their claims against Defendants New Mexico Federation of Teachers-TVI, Albuquerque TVI Faculty Federation Local No. 4974 AFT, NMFT (Local), and American Federation of Teachers-TVI (AFT) with prejudice pursuant to Rule 1-012(B)(6) NMRA. Plaintiffs’ former employer was not named in the complaint, so that all causes of action were brought against the unions only. Plaintiffs argue that the district court erred in. granting Defendants’ motion to dismiss their action for: (1) breach of a collective bargaining agreement by third-party beneficiaries; (2) breach of duty of fair representation; (3) third-party beneficiary breach of contract; (4) breach of implied covenant of good faith and fair dealing; (5) breach of fiduciary duty; (6) negligence and gross negligence claims; and (7) holding that union members are required to exhaust administrative remedies under the New Mexico Public Employee Bargaining Act, NMSA 1978, §§ 10-7D-1 to -26 (1992) (repealed in 1999) (PEBA). We consider the question of whether union members have a cause of action against their union for misfeasance or malfeasance when the union represents the members’ interests against an employer. We conclude that the union members may maintain such an action. Based on the following, we reverse the district court.
FACTUAL AND PROCEDURAL BACKGROUND
{3} The facts of this case are not in dispute. “[I]f a district court grants a motion to dismiss pursuant to Rule 12(b)(6), then the allegations pleaded in the complaint must be taken as true for purposes of an appeal.” Envtl. Improvement Div. of N.M. Health & Env’t Dep’t v. Aguayo, 99 N.M. 497, 499, 660 P.2d 587, 589 (1983). We thus assume the truth of the following well-pleaded allegations when assessing whether they are sufficient to state a cause of action.
{4} Plaintiffs were union employees of the Albuquerque Technical Vocational Institute (TVI) when they were summarily terminated from their positions without notice or explanation. Defendants were labor unions which had a collective bargaining agreement with TVI. Defendants represented Plaintiffs in their grievance action regarding the termination of their employment. As provided by TVI’s collective bargaining agreement and the PEBA statute, Defendants were the sole representatives for Plaintiffs in employment-related arbitration matters. Plaintiffs attempted to utilize the contractual provisions of the collective bargaining agreement for settling disputes.
{5} Despite actual knowledge of their legitimate defense to the termination and actual knowledge that the penalty of termination was in violation of TVI rules, regulations, and the collective bargaining agreement, Defendants only instituted a perfunctory defense, and did not consult with Plaintiffs before dismissing their grievances and refusing an arbitration hearing, and did not ever ascertain why TVI terminated Plaintiffs. Further, Defendants turned on Plaintiffs, supporting TVI in a pending federal lawsuit in order to gain an advantage with TVI for themselves. Defendants’ actions kept Plaintiffs from being able to “take appropriate steps to defend themselves.” Further, Defendants’ actions violated the collective bargaining agreement, breaching the covenant of good faith and fair dealing, and were negligent and grossly negligent.
{6} Defendants contend that while the PEBA and TVI’s policies granted them the status of exclusive representative for collective bargaining purposes, these policies did not allow Defendants to wield that power in the grievance process. They claim that under Section 10-7D-15, Plaintiffs had the option of acting individually in “presenting] a grievance without the intervention of the exclusive representative.” Further, Defendants argue that Plaintiffs’ case is foreclosed because they failed to exhaust their administrative remedies under PEBA when Plaintiffs went to court rather than bring their grievances against Defendants to the TVI Labor Relations Board or the Public Employee Labor Relations Board (PELRB). Defendants argue that the lack of an exclusive duty to represent Plaintiffs, and Plaintiffs’ failure to seek redress under the collective bargaining agreement, means that Plaintiffs cannot later pursue an action in district court for the claims alleged in their complaint.
{7} With regard to the breach of contract claim, the district court determined that Plaintiffs claimed that they are third-party beneficiaries to the collective bargaining agreement between Defendants and TVI and therefore must stand in the place of TVI and allege a promise made by Defendants in the collective bargaining agreement to TVI that Defendants later breached. The district court decided that Plaintiffs alleged no such promise that Defendants could have breached. Because no breach of contract claim could be maintained, the district court decided that Plaintiffs claims for breach of the implied covenant of good faith and fair dealing could not be maintained either.
{8} The claim for breach of fiduciary duty was dismissed because the claim could not “lie under the facts asserted by Plaintiff[s].” The claims for negligence and breach of duty of fair representation were dismissed because the district court found that Defendants had broad discretion concerning their bargaining unit members and were not subject to a common law negligence standard. Further, it found that while Defendants “did owe a duty to Plaintiffs to fairly represent them in their grievances,” PEBA was in effect and possessed an administrative enforcement scheme which must be exhausted.
{9} Plaintiffs timely appealed the district court’s order dismissing its complaint.
DISCUSSION
Standard of Review
{10} The dismissal of Plaintiffs’ complaint was for failure to state a cause of action, and therefore, the district court did not consider any matters outside the pleadings. A motion to dismiss under Rule 1 — 012(B)(6) is properly granted only when it appears that a plaintiff cannot recover or be entitled to relief under any state of facts provable under tbe claim. Kirkpatrick v. Introspect Healthcare Corp., 114 N.M. 706, 709, 845 P.2d 800, 803 (1992) (“A motion to dismiss should be granted only when it appears that the plaintiff is not entitled to recover under any facts provable under the complaint.”); Jones v. Int’l Union of Operating Eng’rs, 72 N.M. 322, 325, 383 P.2d 571, 573 (1963). We treat all of the complaint’s well-pleaded allegations as true but disregard conclusions of law and unwarranted factual deductions. See Saenz v. Morris, 106 N.M. 530, 531, 746 P.2d 159, 160 (Ct.App. 1987). We apply a de novo standard of review to determine whether the law was correctly applied to the facts. See Kropinak v. ARA Health Sens., Inc., 2001-NMCA-081, ¶ 4, 131 N.M. 128, 33 P.3d 679.
Exclusive Representation Clause is Irrelevant to Defendants’ Claim
{11} Although TVI’s policy provides for exclusive representatives to act for and represent all employees in the appropriate bargaining unit and negotiate collective bargaining agreements, the policy also permits an employee, acting individually, to present a grievance without the intervention of the exclusive representative. Defendants seek to rely on Plaintiffs ability to represent themselves as a way around liability for acts they undertook. Just because Defendants had no initial duty to act on Plaintiffs’ behalf does not preclude the formation of a special relationship with Plaintiffs that gives rise to a special duty to Plaintiffs when Defendants did choose to represent employees.
{12} Despite Defendants’ arguments, this grievance procedure under TVI policy Section 12(E) is “to be used for the settlement of disputes pertaining to employment terms and conditions and related personnel matters.” This procedure does not apply in a case such as this one where employees are suing their unions for claimed breach of duty of fair representation, breach of covenant of good faith and fair dealing, breach of fiduciary duties, and the other claims relating to Defendants’ treatment of Plaintiffs’ grievances against TVI. As stated above, Plaintiffs’ cause of action arises precisely because Defendants undertook their representation in the grievance against TVI and then acted inimieally to their interests. The issue is not whether Plaintiffs could have chosen another course; it is that Defendants allegedly injured Plaintiffs by representing them in the course taken on their behalf.
{13} Therefore, once Defendants started representing Plaintiffs in the grievance procedure, they had a duty to fairly represent Plaintiffs, and neither the TVI policy nor PEBA contemplates employees taking individual action against their representative union in the midst of the grievance procedure that is already set in motion. This is particularly true when claims have already been “settled” with the employer, by Defendants giving up what Plaintiffs wanted: reinstatement.
{14} Section 10-7D-15(B) does permit public employees such as Plaintiffs, acting individually, to present a grievance without the intervention of the exclusive representative. However, in this case, Plaintiffs chose to be represented by Defendants, and as such, Defendants owed Plaintiffs a duty to fairly and adequately represent their interests. We do not have case.law on point for this issue. In this case, Plaintiffs contend that they relied on Defendants to fairly represent them, and that by the time Defendants “settled” their claims with TVI, it was too late to go after Defendants since the policies and settlement disallowed reinstatement of Plaintiffs. Additionally, if all the allegations in the complaint are taken as true, we have to conclude that Defendants undertook to be the exclusive representatives for arbitration of Plaintiffs’ grievances. Thus, Defendants had the duty to represent Plaintiffs fairly and adequately.
Exhaustion of Administrative Remedies
{15} Defendants assert that Plaintiffs did not exhaust their administrative remedies. There is an administrative scheme in place which handles certain types of com plaints. One of the provisions of PEBA creates the PELRB, which administers PEBA. See Section 10-7D-8. The PELRB, or in this case, TVI’s Governing Board, is responsible for hearing and determining “complaints of prohibited practices” included in the Act. Section 10-7D-9(A)(3). Defendants argue that Plaintiffs should have filed such a prohibited practices complaint with TVI’s Labor Relations Board or the PELRB after Defendants abandoned representation of Plaintiffs in April 1999.
{16} Generally, unless the available legal or statutory administrative remedies are inadequate, a plaintiff must exhaust all administrative remedies before filing a claim in court for relief. See Sonntag v. Shaw, 2001-NMSC-015, ¶ 13, 130 N.M. 238, 22 P.3d 1188; Franco v. Carlsbad Mun. Schs., 2001-NMCA-042, ¶ 20, 130 N.M. 543, 28 P.3d 531. The exhaustion doctrine is closely related to the finality doctrine because if the plaintiff “has not yet exhausted an available administrative remedy, the agency’s action is not yet final.” Richard J. Pierce, Jr., Administrative Law Treatise § 15.1 at 966 (4th ed.2002) (hereinafter Pierce). One justification for the exhaustion requirement is that “the legislature creates an agency for the purpose of applying a statutory scheme to particular factual situations.” Pierce, supra § 15.2 at 970. Yet, we do not require a plaintiff “to exhaust an administrative remedy when that would be an exercise in futility.” Id. at 977.
{17} Plaintiffs focus their argument on the contention that neither the PEBA nor the TVI labor policies state that unfair representation claims are at any point required to be determined by the TVI Labor Relations Board. Plaintiffs argue that the dismissal of their grievance prevented them from exhausting their contractual remedies. They further contend that they have exhausted all internal remedies provided for by the collective bargaining agreement. They argue that any further exhaustion of remedies with respect to their termination has been waived by Defendants, or would be futile, because after Defendants dismissed and “settled” their grievances at the arbitration level, Plaintiffs could no longer demand an arbitration of their terminations. Plaintiffs maintain that Defendants are not being sued for failing to comply with any provision of the collective bargaining agreement because that agreement does not provide provisions detailing the rights of Plaintiffs alleging a cause of action against Defendants. Rather, Plaintiffs contend that Defendants “are being sued for failing to protect [Plaintiffs’] rights by not pursuing a meritorious grievance when [Defendants were] the only entity that could file a demand for arbitration of [Plaintiffs’] dismissals].”
{18} Section 10-7D-15(B) does allow Plaintiffs to present a grievance without the intervention of the exclusive representative; in this case, Defendants. However, neither this statute nor any other actually requires Plaintiffs to act individually. TVI is not expressly empowered to determine claims of breach of the duty of fair representation between union members, like Plaintiffs, and unions like Defendants. Plaintiffs thus believe that their claims should survive because there is no comprehensive administrative scheme that deals with such disputes, and Plaintiffs’ claims are based on New Mexico common law tort and contract principles, plus the duty of fair representation that is based upon the law set out in Jones, 72 N.M. at 330, 383 P.2d at 576.
{19} In developing this argument with regard to exhaustion of administrative remedies, both sides rely on Barreras v. State of New Mexico Corrections Department, 2003-NMCA-027, 133 N.M. 313, 62 P.3d 770. In Barreras, we held “that when an employee’s contractual claim arises from the State Personnel Act, as well as attendant rules, regula tions, and agency personnel policies, the employee’s remedies are limited to those set forth in the State Personnel Act.” Id. ¶2. Although Barreras concerned the State Personnel Act (SPA) and not PEBA, our analysis there concerning whether administrative remedies prevail is much the same.
{20} In Barreras, the plaintiffs were former state employees who had been discharged from employment in violation of the SPA. Id. ¶ 3. The Barreras plaintiffs attempted to bypass an administrative appeal to the State Personnel Board (SPB) by filing a lawsuit directly in district court against their former employer, alleging breach of implied contract of employment based on the SPA. Id. ¶¶ 2-4. The district court concluded that the plaintiffs’ claims were barred as a matter of law. Id. ¶4. We affirmed that decision after determining that the administrative scheme in place was comprehensive since the SPB in that case was “expressly empowered to hear appeals from adverse employment actions.” Id. ¶ 12. In doing so, this Court assessed several factors in determining whether the SPA’s administrative remedies prevailed over an action for damages in district court in light of the fact that the Act “contains no express language that its administrative remedies either are, or are not, exclusive.” Id. ¶ 11. “Those factors include[d] the comprehensiveness of the administrative scheme, the availability of judicial review, and the completeness of the administrative remedies afforded.” Id. The general rule is “that an individual employee must show that he has exhausted the grievance procedures provided by the agreement as a condition to his right to maintain an action in court.” Jones, 72 N.M. at 326, 383 P.2d at 574.
{21} Unlike Barreras, there is no express empowerment under PEBA as it relates to TVI for the TVI Labor Relations Board to determine claims of breach of the duty of fair representation by a union in an employment dispute. There is also no specific right under PEBA to bring an action against Defendants before the TVI Labor Relations Board for breach of duty of fair representation, breach of fiduciary duties, breach of the union members’ contractual rights, or for breach of Defendants’ promise to file an arbitration. Sections 10-7D-1 to — 26. There is simply no provision for the TVI Labor Relations Board to hear such a dispute at all. Thus, there could be no complete remedy because the TVI Labor Relations Board could not order Defendants to reinstate Plaintiffs with back pay when that underlying claim was settled to Plaintiffs’ detriment (and against their claims) by Defendants with no resolution of Plaintiffs’ termination claims. In this case, Plaintiffs’ claims against Defendants are based on common-law contract labor principles, not directly upon PEBA. See Jones, 72 N.M. at 327-28, 383 P.2d at 575-76. There is no comprehensive scheme arising from PEBA that deals with disputes between unions and their members; Plaintiffs cannot therefore be required to exhaust non-existent administrative remedies in this case. See Vaca v. Sipes, 386 U.S. 171, 185-86, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); see also Fetterman v. Univ. of Conn., 192 Conn. 539, 473 A.2d 1176, 1185 (1984); 48A Am.Jur.2d Labor and Labor Relations § 3278 (1998).
Public Collective Bargaining Agreements and the Duty Owed by Unions to Their Members
{22} The contract in this case is one between TVI and Defendants. Plaintiffs are not parties to the collective bargaining agreement, which raises the question of whether they may enforce its terms. Although Plaintiffs are not parties to the agreement, they have an interest in the agreement as third-party beneficiaries whom Defendants represented. “There has always been trouble with tripartite relationships and the labor field has additional complications. The parties affected are the union, the employer, and individual employees, many of whom have conflicting interests.” Jones, 72 N.M. at 329, 383 P.2d at 576. In Jones, which concerned a collective bargaining agreement in the private sector under the National Labor Relations Act (NLRA), a former employee brought an action against his former employ er for wrongful discharge and against his labor union. Id. at 324, 383 P.2d at 572. The former employee sought damages against his labor union for its arbitrary, fraudulent, and bad faith violation of its trust as sole bargaining agent, in that it refused to demand that the employee’s grievance be submitted to arbitration. Id. Our Supreme Court held that the employee’s complaint, which was grounded upon an alleged breach of the collective bargaining agreement, stated a cause of action. Id. at 332, 383 P.2d at 577. Although Jones concerned a collective bargaining agreement in the private sector, we should here extend its analysis to this case dealing with public employees.
{23} Unions representing public employees have broad discretion in handling claims of their members, “and in determining whether there is merit to such claim which warrants the union’s pressing the claim through all of the grievance procedures, including arbitration, and the courts will interfere with the union’s decision not to present an employee’s grievance only in extreme cases.” Id. at 331, 383 P.2d at 577. Thus, a union should only be liable to its members if it acted arbitrarily or in bad faith in its representation or its failure to represent a member against his or her employer. Id. The Jones court implied that unions were under a duty to fairly represent employees in the grievance procedure. Id. at 330, 383 P.2d at 576; see also Vaca, 386 U.S. at 190, 87 S.Ct. 903 (stating that a breach of the duty of fair representation occurs only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith). In this ease, taking Plaintiffs’ well-pleaded allegations as true, we conclude that the complaint alleged conduct arising to the level required by Vaca and Jones, and we therefore determine that Defendants can be sued for the alleged breach of their duties as provided by statute and TVI policy. Contrary to Defendants’ contention, although Plaintiffs do not and cannot sue TVI for wrongful discharge, that does not mean that Plaintiffs cannot bring claims against Defendants. We conclude that unions such as Defendants owe a fiduciary duty to their union members such as Plaintiffs to represent those members fairly. Plaintiffs have adequately stated a cause of action and should be able to proceed with it.
{24} Defendants also rely on TVI’s policies and PEBA Section 10-7D-20(B), (D), and (E), for the proposition that Plaintiffs’ only remedy for Defendants’ actions under these provisions was to file a prohibited practices complaint with the TVI Labor Relations Board with the PERLB under Sections 10-7D-8, -9. We disagree. PEBA and TVI policies, cited for Defendants’ proposition, prohibit organizations such as Defendants from interfering with, restraining, or coercing employees in the exercise of their rights under PEBA or the TVI policies. Section 10-7D-20(B). These policies and statutes also prohibit a union from violating the collective bargaining agreement. Section 10-7D-20(D), (E). Such reliance is inapposite. In this case, Defendants undertook to represent Plaintiffs to secure redress under the collective bargaining agreement. That Defendants may have done this poorly or nefariously so as to tortiously injure Plaintiffs stems from the relationship between Plaintiffs and Defendants, not from the third-party relationship between Plaintiffs and TVI under the collective bargaining agreement. Violation of or interference with collective bargaining rights sets up a measure for consequential damages stemming from the quality of Defendants’ representation, but not the cause of action for the tortious conduct itself.
Rights as Third-Party Beneficiaries for Breach of Contract Claim
{25} A collective bargaining agreement is a contract between a labor organization and the employer. In this case, Plaintiffs are third-party beneficiaries of the contract and may have an enforceable right against a party to the contract. Fleet Mortgage Corp. v. Schuster, 112 N.M. 48, 49, 811 P.2d 81, 82 (1991). Third-party beneficiaries generally have no greater rights in a contract than does the promisee. See id. at 49-50, 811 P.2d at 82-83; see also Leyba v. Whitley, 120 N.M. 768, 771, 907 P.2d 172, 175 (1995) (stating that third-party beneficiaries are accorded the traditional contract remedies with respect to the bargain intended for their benefit); Archunde v. Int’l Surplus Lines Ins. Co., 120 N.M. 724, 729, 905 P.2d 1128, 1133 (Ct.App.1995). Thus, having based their action upon an alleged breach of the collective bargaining agreement, Plaintiffs’ right to recover damages is determined by the terms and conditions of that agreement.
{26} The purpose of PEBA
is to guarantee public employees the right to organize and bargain collectively with their employers, to promote harmonious and cooperative relationships between public employers and public employees and to protect the public interest by ensuring, at all times, the orderly operation and functioning of the state and its political subdivisions.
Section 10-7D-2. With this in mind, Plaintiffs as third-party beneficiaries of the collective bargaining agreement alleged in their complaint that they were entitled to an arbitration hearing for what they claimed was an unfair termination.
Breach of the Duty of Fair Representation
{27} The collective bargaining agreement between TVI and Defendants refers to PEBA, which states that no union or its representative shall “refuse or fail to comply with a collective bargaining or other agreement with the public employer.” Section 10-7D-20(D). Plaintiffs argue that the collective bargaining agreement requires that Defendants represent employees in all actions against the employer, and this creates a duty of fair representation between Defendants and Plaintiffs. Plaintiffs argue that they lost the ability to remedy breaches of the agreement between TVI and Defendants through the grievance process, due to Defendants’ alleged breach of its duty of fair representation. See Vaca, 386 U.S. at 186, 87 S.Ct. 903.
{28} Here, Defendants agreed to undertake representation of Plaintiffs. As a result of their dismissal of Plaintiffs’ claims, allegedly without Plaintiffs’ consent or consultation, Defendants impaired Plaintiffs’ rights under the collective bargaining agreement. In undertaking to represent Plaintiffs, Defendants should have realized that Plaintiffs would not simultaneously seek to represent themselves. See Restatement (Second) of Torts § 305 (1965) (“An act may be negligent if the actor intends to prevent, or realizes or should realize that it is likely to prevent, another or a third person from taking action which the actor realizes or should realize is necessary for the aid or protection of the other.”). Furthermore, Defendants’ undertaking to represent Plaintiffs created a special relationship between them. See, e.g., Smith v. Bryco Arms, 2001-NMCA-090, ¶ 25, 131 N.M. 87, 33 P.3d 638 (“At times a duty is found based on the existence of a ‘special relationship’ between plaintiff and defendant ... [which] can be ... voluntarily undertaken.”) (citation omitted); Wark v. United States, 269 F.3d 1185 (10th Cir.2001) (“A party may assume duties of care by voluntarily undertaking to render a service.”) (internal quotation marks and citations omitted); Air Line Pilots Ass’n Int’l v. O’Neill, 499 U.S. 65, 75, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991) (“[A] union owes employees a duty to represent them adequately as well as honestly and in good faith.”). This duty is similar to the duty of good faith that trustees owe their beneficiaries, attorneys owe their clients, and corporate officers owe their shareholders. Id. As stated in the Restatement (Second) of Torts § 323:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking.
We hold that the duty of fair representation arises from Defendants’ undertaking to act as the exclusive bargaining agent of Plaintiffs. Plaintiffs thus may bring their suit for them claim in this ease.
Dismissal of Defendant AFT
{29} The district court’s order dismissing Plaintiffs’ claims with prejudice did not specifically rule on this issue regarding whether Defendant AFT was a proper party. Suit may be brought only against the parties to the contract. Defendants maintain that the Local, not the AFT, was the contracting party. Defendants argue that where the local union is designated as the exclusive bargaining agent responsible for representing employees in the prosecution of grievances, only the local union can be held responsible. See Sine v. Local No. 992, Int’l Bhd. of Teamsters, 730 F.2d 964, 966 (4th Cir.1984); Teamsters Local Union No. 3O v. Helms Express, Inc., 591 F.2d 211, 216-17 (3d Cir. 1979). However, the agreement includes AFT as part of the “Federation,” which is the exclusive representative of Plaintiffs. Therefore, although the complaint states that the written collective bargaining agreement was entitled “AGREEMENT BY AND BETWEEN ALBUQUERQUE TVI COMMUNITY COLLEGE GOVERNING BOARD AND ALBUQUERQUE TVI FACULTY FEDERATION LOCAL NO. 4974 NMFT[,]” AFT is included in the definition of “Federation.” Thus, taking all the facts alleged in the complaint as true, we cannot conclude that AFT was not the bargaining agent for Plaintiffs, or a party to the collective bargaining agreement.
CONCLUSION
{30} We have held that: (1) Plaintiffs were not required to exhaust administrative remedies; (2) Plaintiffs adequately stated a cause of action in that unions owe a fiduciary duty to their members to represent them fairly, and Plaintiffs have the right to enforce a collective bargaining agreement as third-party beneficiaries; (3) Plaintiffs, as third-party beneficiaries, may bring a third-party claim against Defendants; (4) in undertaking to represent Plaintiffs, Defendants created a special duty to do so adequately and in good faith; and (5) AFT could be a party to the collective bargaining agreement, and thus, suit against it was proper.
{31} Having so held for the réasons set forth above, we reverse the district court’s dismissal of Plaintiffs’ claims against Defendants.
{32} IT IS SO ORDERED.
WE CONCUR: A. JOSEPH ALARID and IRA ROBINSON, Judges.
. The complaint for damages was based on NMSA 1978, § 10-7D-1 to-26 (1992), which was repealed in 1999 and replaced with the current statute, NMSA 1978, § 10-7E-1 to-26 (2003). The events of this action occurred during the time the original PEBA was in effect and we will use that version of the PEBA to decide this case.
. Under Section 10-7D-10, the Albuquerque TVI Community College Governing Board assumed the powers and the duties of the PELRB, which include promulgating rules and regulations, Section 10-7D-9(A), overseeing collective bargaining between public employees and their employers, Section 10-7D-9(A)(1)(2), and enforcing the provisions of PEBA "through the imposition of appropriate administrative remedies.” Section 10-7D-9(F). | [
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OPINION
WOOD, Chief Judge.
The appeal involves a default judgment against Springer Corporation. There are two issues: (1) is a workmen’s compensation insurer, who has paid compensation, an indispensable party in the workman’s action against a third party and (2) did the trial court err in refusing to set aside the default judgment.
Indispensable party.
Plaintiff received an injury arising out of and in the course of his employment and was paid workmen’s compensation by his employer’s insurer, USF&G (United States Fidelity & Guaranty Company). Plaintiff sued Springer alleging Springer’s breach of warranty and negligence was the cause of the accident and resulting injury. Default judgment was entered against Springer. Prior to entry of the default judgment, plaintiff’s counsel informed the court of his agreement with USF&G “ . . . that they will be reimbursed in the amounts they have expended or will expend for medical and compensation benefits.” Subsequent to entry of the judgment, a formal assignment was filed with the court. This assignment, executed by plaintiff, affirmed the declaration made in open court by his counsel.
Seeking to set aside the default judgment, defendant claims that USF&G was an indispensable party to plaintiff’s suit against Springer and, not being a party at the time of entry of the judgment, the trial court had no jurisdiction to enter the judgment.
A court cannot proceed to judgment in the absence of an indispensable party. State v. Scarborough, 78 N.M. 132, 429 P.2d 330 (1967). The question is whether USF&G was such a party.
Any interest of USF&G in plaintiff’s suit against Springer arises under § 59-10-25, N.M.S.A.1953 (Repl.Vol. 9, pt. 1). The 1971 amendment to that section is not applicable since the amendment was enacted subsequent to the date of plaintiff’s accident and injury. Section 59-10-25, supra, provides that the right of a workman to recover damages for injuries occasioned by the negligence or wrong of a person other than the employer is not affected by the Workmen’s Compensation Act. It also provides that a workman may not recover such damages and also claim compensation “ . . . and in such case the receipt of compensation . . . shall operate as an assignment to the employer, his or its in surer ... or [of] any cause of action, to the extent of the liability of such employer to such workman which the workman . . . may have against any other party for such injuries.
Our Supreme Court has consistently held that § 59-10-25, supra is a reimbursement statute; it has also consistently held that there is but one cause of action. Varney v. Taylor, 71 N.M. 444, 379 P.2d 84 (1963); Royal Indem. Co. v. Southern Cal. Petroleum Corp., 67 N.M. 137, 353 P.2d 358 (1960); Kandelin v. Lee Moor Contracting Co., 37 N.M. 479, 24 P.2d 731 (1933). As to the workman’s position under § 59-10-25, supra, Castro v. Bass, 74 N.M. 254, 392 P.2d 668 (1964) states: “ . . our statute contemplated that an employee receiving compensation had a right to sue a third party tortfeasor responsible for his injury; that this right was for the entire amount of damages suffered by the workman with the employer or his insurer to be reimbursed out of any amoiints received.” We emphasize two .points: the workman sues the third party for the entire amount of damages; the employer or insurer is reimbursed out of amounts received by the workman.
We examine Springer’s contentions in the light of the foregoing explanation of § 59-10-25, supra. Springer contends that since there is but one cause of action and since, upon payment of compensation, a portion of the cause of action is assigned to the employer or insurer, the employer or insurer becomes an indispensable party. Springer’s argument is based both on general law and on cases under our workmen’s compensation law.
Examples of general law decisions are Torres v. Gamble, 75 N.M. 741, 410 P.2d 959 (1966) and Sellman v. Haddock, 62 N.M. 391, 310 P.2d 1045 (1957). See Home Fire & M. Ins. Co. v. Pan American Petroleum Corp., 72 N.M. 163, 381 P.2d 675 (1963) for an explanation of Sellman v. Haddock, supra. Torres v. Gamble, supra, states: “Since our decision in Sellman v. Haddock . . . there can be no question that in this jurisdiction an insurer that has paid its insured for a loss, in whole or in part, is a necessary and indispensable party to an action to recover the amounts paid from a third party allegedly responsible therefor. . . . ”
We do not deem this general law to be inapplicable because the workman is the statutory beneficiary of workmen’s compensation insurance rather than the insured. Section 59-10-3, N.M.S.A.1953 (Repl.Vol. 9, pt. 1). Rather, we look to the reason behind the general law. The reason i.s that the insurer has the right to collect the amount it has paid from the party who caused the damage. If it has this right, it owns the right sought to be enforced and is in a position to release the third party from the liability upon which the action is grounded. In this situation the insurer is an indispensable party. Sellman v. Haddock, supra; Crego Block Co. v. D. H. Overmyer Co., 80 N.M. 541, 458 P.2d 793 (1969).
The “right to collect” in the above situation is based on the fact that the insurer has paid what another should have paid and, having done so, the rights and remedies of the original creditor are assigned to the insurer. This is the the right of subrogation. See State Farm Mut. Auto. Ins. Co. v. Foundation R. Ins. Co., 78 N.M. 359, 431 P.2d 737 (1967).
Section 59-10-25, supra, does not deal with the right of subrogation, but with the right of reimbursement. Royal Indem. Co. v. Southern Cal. Petroleum Corp., supra. The reimbursement is out of amounts received by the workman because the workman sues for the entire amount of damages suffered. Castro v. Bass, supra. Since the “right to collect” is in the workman, the compensation insurer does not own the right to enforce liability and cannot release the third party from liability. The result in this case is that USF&G was not an indispensable party under the concepts applied in Torres v. Gamble, supra, and Sellman v. Haddock, supra.
We now consider the workmen’s compensation decisions. Varney v. Taylor, supra, states:
“ . . . under prior rulings of this court, it would seem that unless the insurance company is allowed to become a party-plaintiff, it will forfeit its right to reimbursement under § 59-10-25, N.M.S.A. 1953. This is because we specifically held in Royal Indemnity Co. v. Southern Cal. Petroleum Corp., 1960, 67 N.M. 137, 353 P.2d 358, that the statute was a reimbursement statute, and that there was but one cause of action in the employee, even though a part of the recovery is to be paid to the employer or his insurer. The opinion in Royal was a logical result from our holdings in Kandelin v. Lee Moor Contr. Co., 1933, 37 N.M. 479, 24 P.2d 731, and Sellman v. Haddock, 1957, 62 N.M. 391, 310 P.2d 1045. Therefore, for the trial court to have found that the insurance company would not be bound by the judgment is in error, for otherwise it would contemplate the splitting of a cause of action, and, even if this were allowed, not all the parties would be before the court in the second case. Thus, as we .said in Royal, there would be the lack of an indispensable party.”
The reference to “indispensable party” in Royal does not aid Springer because the reference is to the workman as the indispensable party. The workman is an indispensable party because it is the workman who has the claim against the third party. The intimation that the compensation insurer is indispensable appears in Kandelin v. Lee Moor Contracting Co., supra, and Varney v. Taylor, supra. We discuss those decisions.
In Kandelin, the compensation carrier was a party in the proceedings against the alleged tortfeasor, but was removed from the case prior to adjudication of the liability issue by the trial court’s ruling on a plea in bar. The appellant-defendant was the tortfeasor. Our Supreme Court held the trial court erred, saying: “ . upon the record, the defendant is entitled to an adjudication as to whether the Pacific Indemnity Company has an interest in the recovery. . . .” Our Supreme Court did not, however, disturb the verdict, but remanded the cause for determination of the insurer’s right to participate in the recovery.
We question a defendant’s right to an adjudication as to a compensation insurer’s right to participate in the workman’s recovery from the defendant. We do so because Kandelin also states: “. Whether the insurance carrier is entitled to any part of the recovery in this case is no concern of the appellant [defendant], .” The result in Kandelin may be explained on the basis the insurer was a party to the suit and had been improperly removed therefrom. This explanation is consistent with the tortfeasor’s “no concern” with the insurer’s right to participate in the recovery.
Varney v. Taylor, supra, following Kandelin and Royal Indem. Co. v. Southern Cal. Petroleum Corp., supra, establishes clearly that a compensation insurer has the right to intervene in the workman’s suit against a third party. It does not hold that the insurer is an indispensable party to that suit. Varney states that unless the insurer is allowed to intervene it will forfeit its right to reimbursement. This statement is incorrect. The insurer’s right to reimbursement is established by § 59-10-25, supra. That right is not waived by failure to participate in the trial of the workman’s action against the third party. Byers v. North Carolina State Highway Commission, 275 N.C. 229, 166 S.E.2d 649 (1969). That statutory right may be protected in a variety of ways. In McDonald v. E. J. Lavino Company, 430 F.2d 1065 (5th Cir.1970), the insurer’s rights were protected by allowing intervention after judgment had been entered against the tortfeasor. See the method of protecting the insurer’s rights in Varney and Royal. Under the facts of this case it is not claimed that USF&G has lost its right of reimbursement ; yet, it is not a party.
Varney also states that the insurer is bound by the judgment in the workman’s suit against the allegedly liable third party. This statement is consistent with: (a) Royal Indem. Co. v. Southern Cal. Petroleum Corp., supra, where the third party settled the claims of the workman and the insurer’s right to reimbursement was by the fact of settlement held to be established; (b) Castor v. Bass, supra, where the workman’s recovery from the third party was less than the insurer’s contingent workmen’s compensation liability and because of the third party recovery, the employee could recover no further compensation; (c) White v. New Mexico Highway Commission, 42 N.M. 626, 83 P.2d 457 (1938), where the workman’s settlement with the tortfeasor resulted in the workman being unable to recover any compensation; and, (d) Brown v. Arapahoe Drilling Company, 70 N.M. 99, 370 P.2d 816 (1962), where the workman’s failure to recover from the third party did not foreclose his right to compensation. In each of these cases, resolution of the issues between the workman and the third party controlled both the rights and liabilities of the compensation insurer.
The cases referred to in the preceding paragraph show that reimbursement of the insurer is necessarily affected by the results of the litigation between the workman and the third party. If the workman obtains a settlement, or recovers from the tortfeasor, the right to reimbursement is established. If the workman fails to recover, the right to reimbursement is lost.
Since the interests of the compensation insurer are necessarily affected, does that result in USF&G being an indispensable party in this case ? “. ... An indispensable party is one whose interests will necessarily be affected by a judgment in a particular case. . . .” Home Fire & Marine Insurance Company v. Schultz, 80 N.M. 517, 458 P.2d 592 (1969); State Farm. Mut. Auto. Ins. Co. v. Foundation R. Ins. Co., supra; State v. Scarborough, supra. Definition of indispensable party in terms of “necessarily affected” requires elaboration. Miller v. Klasner, 19 N.M. 21, 140 P. 1107 (1914) states:
. . It is a familiar and fundamental rule that a court can make no decree affecting the rights of a person over whom it has not obtained jurisdiction, or between the parties before it, which so far involves or depends upon the rights of an absent person, that complete and final justice can not be done between the parties to the suit without affecting those rights. . . . The interest of Ellen Casey was necessarily so interwoven with the interests of the parties to this suit, that no decree could possibly be made, affecting the rights of those before the court, without operating upon her interest. . . . ” [Emphasis added]
See C. de Baca v. Baca, 73 N.M. 387, 388 P.2d 392 (1964).
Although the results of the litigation between the workman and the third party necessarily affect the insurer because that result determines whether the insurer will in fact be reimbursed, the third party litigation does not involve the insurer’s right to reimbursement. That right is conferred by § 59-10-25, supra. Further, the issues in the third party litigation do not depend upon the insurer’s right to reimbursement. Complete and final justice can be done between the workman and the third party without affecting any right of the insurer to the reimbursement accorded by § 59 — 10— 25, supra.
In summary — the general law of subrogation is not applicable to the right of reimbursement accorded by § 59-10-25, supra. The absence of USF&G as a party to this action did not result in splitting the cause of action because the cause of action is the workman’s. The absence of USF&G as a party did not forfeit USF&G’s right to reimbursement. Its right to reimbursement did not depend on it being a party to the third party litigation at the time judgment was entered. While USF&G is bound by the results of the third party litigation, it is bound whether or not it is a party to that litigation. To be an indispensable party, the rights of the absent party must be involved or the issues between the parties must depend upon the rights of the absent party. Our conclusion is that USF&G was not an indispensable party to plaintiff’s suit against Springer. Compare Sharrock v. Perkins, 297 F.Supp. 1285 (W.D.Okl.1969).
Setting aside default judgment.
The indispensable party issue, which has been discussed and decided, attacked the propriety of entering the default judgment. This issue attacks the correctness of the trial court’s decision in refusing to set that judgment aside.
The motion to set aside the default judgment was pursuant to §§ 21-1-1(55) (c) and 21-1-1(60) (b), N.M.S.A.1953 (Repl.Vol. 4). See Starnes v. Starnes, 72 N.M. 142, 381 P.2d 423 (1963).
Two issues were raised by the motion: (1) the existence of grounds for setting aside the default judgment and (2) the existence of a meritorious defense. Singleton v. Sanabrea et al., 35 N.M. 491, 2 P.2d 119 (1931); see Wakely v. Tyler, 78 N.M. 168, 429 P.2d 366 (1967); Compare Brown v. Lufkin Foundry & Machine Company, 83 N.M. 34, 487 P.2d 1104 (Ct.App.1971).
The moving party has the burden of showing he is entitled to the relief sought, Singleton v. Sanabrea et ah, supra, and, thus, must carry that burden on each of the issues. The motion is properly denied if the moving party fails to show the existence of grounds for setting the default judgment aside. Stalick v. Wilson, 21 N.M. 320, 154 P. 708 (1916); see Wooley v. Wicker, 75 N.M. 241, 403 P.2d 685 (1965). The motion is also properly denied if the moving party fails to show the existence of a meritorious defense. Gomes v. Williams, 420 F.2d 1364 (10th Cir.1970),
Defendant’s motion alleged that its default was due to mistake, inadvertence and excusable neglect — thus, it alleged the existence of grounds for setting aside the default judgment. See § 21-1-1 (60) (b)(1), supra. The motion also alleged “ . a meritorious defense to all or part of plaintiff’s claim.” The motion was supported by several affidavits. Plaintiff did not file opposing affidavits, but did introduce one exhibit in opposition to the motion. In denying the motion, the trial court found that “ . . . Defendant has failed to prove the allegations contained in its motion. . . .”
The showing made by defendant’s affidavits, which go to the existence of grounds for setting aside the default judgment are essentially uncontroverted. “ . . . [Wjhere there are no intervening equities, the trial court should be liberal in detemining what is a good excuse. .” Weisberg v. Garcia, 75 N.M. 367, 404 P.2d 565 (1965). The exhibit introduced by plaintiff in opposition to the motion is not directed to the grounds asserted for setting aside the default judgment. The record before us does not show any intervening equities.
Since no intervening equities have been shown, the trial court was required to be liberal in examining defendant’s affidavits in determining whether defendant’s default was due to mistake, inadvertence, or excusable neglect. A liberal reading of the affidavits, which are not controverted, established grounds for setting aside the default judgment. In ruling against defendant on the first issue, the trial court erred because the only showing before the trial court was that grounds existed for setting aside the default judgment. In so holding, we have not overlooked the rule that the trial court’s decision was discretionary and is to be set aside only for an abuse of discretion. Sears v. Board of Trust. of Anton Chico Land Grant, 83 N.M. 372, 492 P.2d 643 (1971); Guthrie v. United States Lime and Mining Corporation, 82 N.M. 183, 477 P.2d 817 (1970). On the record here, the trial court acted unreasonably in disregarding the only showing made and, thus, abused its discretion. Conejos County Lbr. Co. v. Citizens Savings & L. Ass’n, 80 N.M. 612, 459 P.2d 138 (1969).
We reach a different result in considering the second issue raised by the motion — the existence of a meritorious defense. In resolving this issue we follow the statement in Singleton v. Sanabrea et al., supra, to the effect that the existence of a meritorious defense, as shown by the moving party’s affidavits, cannot be controverted by counter affidavits. Thus, we do not consider the exhibit' introduced by plaintiff; we consider only the showing made by defendant.
The only showing in defendant’s affidavits going to the existence of a meritorious defense is a statement which reads:
“ . . . that based upon a preliminary investigation of the accident or incident, which is the subject matter of the above suit, affiant is informed and believes that it was not caused by the negligence or conduct of Springer Corporation, but probably by conduct on the part of the manufacturer of the equipment involved, which equipment was delivered by Springer Corporation, as delivering agent for the manufacturer, to plaintiff’s employer.”
Since the quoted statement is on “information and belief,” there is a question as to whether it is entitled to any consideration at all. Singleton v. Sanabrea et al., supra. In this appeal we assume the statement in the affidavit may be considered.
The motion asserts that defendant has a meritorious defense; that defendant has a meritorious cause of action against third parties; that to permit the judgment to stand will prevent defendant from protecting itself by asserting legal rights it has against others; that there have been no intervening equities; that the judgment is excessive and not supported by evidence; and, that to permit the judgment to stand would work a gross injustice upon defendant.
The argument to the trial court restated the grounds named in the motion. Defense counsel also stated:
“. . . Although we are not clearly aware of all the circumstances surrounding the plaintiff’s injury in this case, our preliminary investigation since last week when the Writ of Execution was served on us, indicates that the plaintiff was operating a piece of machinery which was delivered to his employer by Springer Corporation. And that the machinery was made by a company called Wabco. Apparently what happened, as far as we can find out, something went wrong with the machinery and the plaintiff was thereby injured — a wheel came off. Well now, Springer delivered that machine as the agent for the manufacturer and Springer is informed and fully believes they have a cause of action in this case over and against the manufacturer Wabco which is a meritorious crossclaim. As a matter of fact, Springer feels that it was not negligent in any way. Now this machine was brand new and Springer feels that it has a meritorious defense —simply that it wasn’t negligent, that somebody else was negligent. And also the default judgment was entered on the basis of the prayer of the complaint and Mr. Cowper tells me that it was on the testimony with respect to the damages, but I can’t imagine a $250,000.00 judgment being actually justified on litigated basis. . . .”
Counsel for defendant also referred to the statement quoted above from one of the defense affidavits; asserted that a simple denial of negligence is equivalent to a showing of a meritorious defense; reiterated that somebody other than Springer was negligent; and contended it would be a gross injustice to let the default judgment stand because Springer is a significant contributor to the area’s economic base and “$250,000.00 is a lot of money.”
What satisfies the requirement that a party show a meritorious defense ? Trueblood v. Grayson Shops of Tennessee, Inc., 32 F.R.D. 190 (E.D.Va.1963) states:
“. . . the bare wording of Rule 60(b) does not require the showing of the existence of a meritorious defense but this is judicially established and apparently is left within the sound discretion of the trial court. [Tjhere is no universally accepted standard among courts as to what satisfies the requirement that a party show a meritorious defense. Roughly the cases fall into three categories. Some courts have insisted upon a specific recitation of facts in the motion, answer or affidavit which, if proven, would constitute a meritorious defense (citations omitted). Another approach to the problem is that group of cases which accepts allegations, conclusions and even denials in the moving party’s motion or supporting affidavit (citations omitted). Finally, the courts have treated oral statements, affidavits or the court’s own assumption as sufficient indication of the existence of a meritorious defense. . . . ”
We assume, but do not decide, that statements in the motion and the arguments of counsel, could be properly considered. Thus, our review includes the affidavit, the motion and the argument of counsel. Having assumed that everything presented to the trial court is to be considered, regardless of the form of the presentation, we now must determine what showing is required to be made in that presentation.
Trueblood v. Grayson Shops of Tennessee, Inc., supra, required a prima facie showing of a meritorious defense. In Gomes v. Williams, supra, the attorney seeking to set aside the default judgment asserted defendant had a good defense to plaintiff’s claim. The federal Court of Appeals stated:
“. . . Such a bald allegation, without the support of facts underlying the defense, will not sustain the burden of the defaulting party under Rule 60(b). In an attempt to determine the meritorious nature of a defense, the trial court must have before it more than mere allegations that a defense exists. This alone was sufficient basis to deny Rule 60(b) relief. . . .”
Other federal cases requiring a showing of the facts underlying the defense are: Madsen v. Bumb, 419 F.2d 4 (9th Cir.1969); Robinson v. Bantam Books, Inc., 49 F.R.D. 139 (S.D.N.Y.1970); Nelson v. Coleman Company, 41 F.R.D. 7 (D.S.C.1966). See also Consolidated. Masonry & Fireproof, Inc. v. Wagman Const. Co., 383 F.2d 249 (4th Cir.1967). The federal decisions are of importance because § 21 — 1— l(60)(b), supra, is derived from the federal rule of the same number. See Compiler’s note to § 21-1-1(60) (b), supra.
Singleton v. Sanabrea et al., supra, decided prior to our Rule 60(b), supra, quotes with approval from a legal text, as follows:
“ ‘. . . on the application to vacate the court does not try and determine whether or not a . defense exists in point of fact, but only whether such a prima facie case has been made as ought to be tried and determined in a regular way.’ ” [citation omitted]
To make a prima facie showing that a defense exists, the moving party must, consistent with the above cited federal decisions, allege facts underlying the defense. An unsupported statement of “no negligence” is insufficient.
Here, the affidavit, the motion and the argument of counsel all conclude that there is a meritorious defense but there are no underlying facts in support of this contention. Assuming, but not deciding, that the conclusion of a claim over against a third party may be included within a “meritorious defense,” there are no underlying •facts in support of the third party claim.
New Mexico decisions recognize that liability and damages are separate concepts. See Cherry v. Stockton, 75 N.M. 488, 406 P.2d 358 (1965); Baros v. Kazmierczwk, 68 N.M. 421, 362 P.2d 798 (1961). Compare N.M.U.J.I. 14.1. Mat ters involving large sums of money should not be determined by default judgment if it can be reasonably avoided. Hutton v. Fisher, 359 F.2d 913 (3rd Cir.1966); Rooks v. American Brass Company, 263 F.2d 166 (6th Cir.1959); Tozer v. Charles A. Krause Milling Co., 189 F.2d 242 (3rd Cir.1951). Accordingly, we assume, but do not decide, that the damages awarded in the default judgment should be considered separately from any question of liability.
The defense affidavit, quoted above, does not refer to the amount of damages. The motion asserts the judgment is excessive and not supported by substantial evidence. Counsel’s argument questions whether a judgment of $250,000.-00 would have been returned if the matter had been litigated and reminds us that the judgment is for a substantial sum. None of the foregoing indicates any underlying fact as a defense to the amount of the damages awarded. Only in this Court was a theory of excessive damages revealed; here, it was argued that there was a lack of proof as to plaintiff’s lost future earnings and plaintiff’s permanent disability. On the showing made concerning the amount of damages, the trial court could properly conclude that it provided no reasonable basis for opening up the damage award.
No underlying facts having been presented, to the trial court concerning a defense to plaintiff’s claim on the theory of nonliability, of liability over against a third party or of excessive damages, the trial court could properly rule that defendant had failed to show a meritorious defense. Whether the judges of this Court would have reached the same result is not the issue. The issue is whether the trial court abused its discretion in reaching this result — that is, whether it acted arbitrarily or unreasonably. Conejos County Lbr. Co. v. Citizens Savings & L. Ass’n, supra. On this record, we cannot say as a matter of law that the trial court’s action was arbitrary or unreasonable.
There remains for consideration the contention that it would be a gross injustice to allow the judgment to stand. Such a claim involves § 21-1-1 (60) (b)(6), supra, which authorizes relief for “. any other reason justifying relief from the operation of the judgment. . . .” Our understanding is that this provision also requires a showing of a meritorious defense. See 7 Moore’s Federal Practice ¶60.27 (1972). The trial court could properly rule that such a showing was not made in this case.
The default judgment is affirmed.
It is so ordered.
HENDLEY, J., concurs.
SUTIN, J., concurring in part and dissenting in part. | [
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