Atencio v. Vigil

• Decision Date: 19 April 1974
• Docket Number: No. 9678,9678
• Citation: 86 N.M. 181,1974 NMSC 34,521 P.2d 646
• Parties: Frank ATENCIO, Plaintiff-Appellant, v. Lourdes Atencio VIGIL et al., Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 646

521 P.2d 646

86 N.M. 181

Frank ATENCIO, Plaintiff-Appellant, v. Lourdes Atencio VIGIL et al., Defendants-Appellees.

No. 9678.

Supreme Court of New Mexico.

April 19, 1974.

[86 NM 181] Lorenzo A. Chavez, Leof T. Strand, Albuquerque, for appellant.

Ronald T. Taylor, Albuquerque, for appellees.

OPINION

MONTOYA, Justice.

This is an appeal from the granting of a motion for judgment on the pleadings and dismissal of the complaint of plaintiff-appellant Frank Atencio. On June 22, 1972, Atencio filed suit to quiet title to a certain piece of property located in Sandoval County. The defendants were Lourdes Atencio Vigil, Marcella Salazar and Hazel Herrera. Lourdes Vigil answered alleging that Atencio's claim was barred by the defenses of res judicata and collateral estoppel because of the judgment in a certain cause in the District Court of Sandoval County No. 5189. The court so found and granted Mrs. Vigil's motion for judgment on the pleadings and dismissed Atencio's complaint against her. Appeal is taken from that judgment and order of dismissal.

In order to properly evaluate the significance of cause No. 5189, the record proper in that cause, which was brought before us on a writ of certiorari for diminution of the record, discloses the following. In June 1971, Atencio (appellant herein) brought suit in cause No. 5189 Sandoval County District Court, against Martha Gutierrez, Marcella Salazar and Hazel Herrera, seeking ejectment of the defendants and asking that possession be restored to him of a certain tract of land in Sandoval County. In the second count, Atencio sought cancellation of the deed which conveyed the property to one or more of the defendants. The cause was tried to a jury and the verdicts returned were in Atencio's favor on both counts, but no damages were assessed. After the verdicts of the jury were returned, a final judgment was entered on May 8, 1972, ruling that Atencio and Lourdes Atencio Vigil (Atencio's ex-wife) were at all relevant times tenants-in-common of the subject property. Thereafter, Atencio's motion to vacate the judgment was quashed, apparently upon a non-existent motion to quash, by reason of non-service of the motion to vacate upon opposing counsel as required by § 21--1-- 1(59)(e), n.M.S.A., 1953 (Repl.Vol. 4, 1970).

Appellant sets forth two points for reversal. First, that the judgment in cause No. 5189 is void to the extent that it purports to grant Lourdes Atencio Vigil an undivided one-half interest in the subject property and that the judgment in cause No. 5189 does not operate as an estoppel or a bar to appellant's suit in the present cause of action. Secondly, it is contended that the final decree in cause No. 99817, Bernalillo County, a divorce case between appellant Atencio and his former wife Lourdes Atencio Vigil (appellee), operates to estop Lourdes Atencio Vigil from making any assertions of interest in the property which is the subject of this suit.

The judgments in causes Nos. 5189 and 99817 are not before us for review. No appeal was taken from those judgments.

Both parties invoke the collateral estoppel and res judicata doctrines in support of their respective positions, appellant relying on the judgment in the divorce action (D.C.C. #99817), while appellees claim that the judgment in the ejectment action (D.C.C. #5189) supports the action of the trial court in their favor.

In Trujillo v. Acequia de Chamisal, 79 N.M. 39, 40, 439 P.2d 557, 558 (Ct.App.1968), the doctrine of res judicata and its application was discussed as follows:

'Res judicata involved the following principle, as set forth in the case of Costilla Estates Dev. Co. v. Mascarenas, 33 N.M. 356, 267 P. 74 (1928):

"It is not questioned that Jahren v. Butler, 20 N.M. 119, 147 P. 280, laid down the correct rule, in quoting from 24 Cyc. 765 as follows:

"'A judgment of a court of competent jurisdiction, upon the merits of a controversy, is conclusive between the parties and those in privity with them, upon every question of fact directly in issue, determined in the action."

Or as otherwise stated, there must be an identity of subject matter, causes, parties and character of the person for or against whom the claim is made. Adams v. Cox, 55 N.M. 444, 234 P.2d 1043 (1951).'

Appellee Lourdes Vigil was not a party to the suit in cause No. 5189, the ejectment action, the parties to said lawsuit were not in privity with her and, on the basis of the foregoing authority, the res judicata doctrine is not available to her in defending the instant suit.

We turn now to the issue of collateral estoppel, which the trial court concluded barred the appellant's cause of action. We considered the doctrine in Paulos v. Janetakos, 46 N.M. 390, 393--394, 129 P.2d 636, 638, 142 A.L.R. 1237, 1241 (1942), and said:

'We have stated that a prior judgment in a different cause of action between the same parties operates as an estoppel only as to questions, points or matters of fact in issue in that cause which were essential to a decision, and which were decided in support of the judgment. What is an issue of fact in the sense in which it is used in the decisions of the courts in like cases, is the first question.

'It must be a fact, the determination of which is material, relevant, and necessary to a decision of the case upon its merits, Mehlhop v. Central Union Trust Co., 235 N.Y. 102, 138 N.E. 751; Block v. Bourbon County Com'rs, 99 U.S. 686, 25 L.Ed. 491; Stannard v. Hubbell, 123 N.Y. 520, 25 N.E. 1084. It must not be a fact that comes collaterally or incidentally in question (Block v. Bourbon County Com'rs, supra), or one that is not material or essential to a decision, even though put in issue by the pleadings. House v. Lockwood, 137 N.Y. 259, 33 N.E. 595; Silberstein v. Silberstein, (218 N.Y. 525, 113 N.E. 495), or evidentiary facts from which the ultimate fact is inferred. Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 47 S.Ct. 600, 71 L.Ed. 1069.

'Our conclusion is that such fact must be an ultimate fact such as is required in allegations of fact in good pleadings, or in findings of fact in cases tried to the court. It is the ultimate fact, the fact without which the judgment would lack support in an essential particular. This is the rule of the Federal Courts.'

In Lawlor v. National Screen Service Corp., 349 U.S. 322, 326, 75 S.Ct. 865, 867, 99 L.Ed. 1122, 1126--1127 (1955), Chief...