Mascarenas v. Jaramillo, No. 18867

• Docket Nº: No. 18867
• Citation: 111 N.M. 410, 1991 NMSC 14, 806 P.2d 59
• Case Date: February 06, 1991
• Court: Supreme Court of New Mexico

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806 P.2d 59 111 N.M. 410 Viola MASCARENAS, Plaintiff-Appellee and Cross-Appellant,
v.
Armando JARAMILLO, d/b/a Valley Enterprises,
Defendant-Appellant and Cross-Appellee. No. 18867. Supreme Court of New Mexico. Feb. 6, 1991.

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[111 NM 411] August Jonas Rane, Taos, for defendant-appellant.

Larry Van Eaton, Taos, for plaintiff-appellee.

OPINION

FRANCHINI, Justice.

Defendant Jaramillo (Jaramillo) appeals from a judgment awarding plaintiff Mascarenas (Mascarenas) $9,124.93 in compensatory damages on claims of breach of contract, breach of implied warranty and negligence. Jaramillo raises the following issues on appeal: (1) whether the trial court erred by finding that Jaramillo was not an employee of Mascarenas; (2) whether the trial court erred by ruling that Jaramillo breached an implied warranty; and (3) whether ordering an unlicensed contractor to refund payments already received and to pay the cost of correcting his work constitutes a double recovery. Mascarenas cross-appeals, and asks us to consider whether the trial court erred by failing to award her prejudgment interest on a loan, lost rental income and all of her costs. We affirm the trial court on all issues except the issue of a refund of monies from an unlicensed contractor and the issue of prejudgment interest. We reverse and remand on these issues.

FACTS

In November 1985, the parties entered into an oral contract whereby Jaramillo, an unlicensed contractor, was to construct a trailer park on land owned by Mascarenas. Apparently, Mascarenas was aware that Jaramillo was not licensed to perform these tasks. The contract required Jaramillo to construct sewer and water lines and to perform grading, leveling, excavation and backfilling work. The parties agreed to a contract price of $4,916.53. Between December 1985 and June 1986, Mascarenas paid $4,898.00 of the contract price before completion of construction. There was no agreement between the parties regarding a specific date for completion.

Jaramillo's work did not conform to applicable governmental standards and regulations,,

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[111 NM 412] and the trailer park failed to pass an official inspection in June 1987. Mascarenas then hired four other contractors to correct the work performed by Jaramillo. The total cost of the corrective work was $7,124.93.

Mascarenas filed suit against Jaramillo on claims of breach of contract, breach of implied warranty and negligence. Jaramillo counterclaimed to recover the balance of the contract price and for defamation. After a bench trial, judgment was entered in favor of Mascarenas on all claims. She was awarded the total cost of the corrective work, $7,124.93, and a refund from Jaramillo of $2,000.00 as compensatory damages. In addition, she was awarded costs of $250.00.

DISCUSSION

I. JARAMILLO WAS NOT AN EMPLOYEE

The trial court found that Jaramillo was not an employee of Mascarenas. Jaramillo attacks the sufficiency of evidence upon which the finding is based, asserting that he was a wage-earning employee. If correct, he was not required to obtain a contractor's license pursuant to NMSA 1978, Section 60-13-3(D)(13) (Repl.Pamp.1984) (employee does not need license). Essentially, Jaramillo asks us to reweigh all of the evidence presented on this issue.

Our purpose on appeal is to review to correct an erroneous result, Morris v. Merchant, 77 N.M. 411, 416, 423 P.2d 606, 609 (1967), not reweigh the evidence. Toltec Int'l, Inc. v. Village of Ruidoso, 95 N.M. 82, 84, 619 P.2d 186, 188 (1980). It has been firmly established in this jurisdiction that only the trier of facts may weigh the testimony, determine the credibility of witnesses, reconcile inconsistent or contradictory statements of a witness, and say where the truth lies. Shaeffer v. Kelton, 95 N.M. 182, 186, 619 P.2d 1226, 1230 (1980). We will not substitute our judgment of the facts for that of the trial court. Ortega v. Montoya, 97 N.M. 159, 161, 637 P.2d 841, 843 (1981). Our duty is to interpret the findings made to determine whether they are sufficient to support the judgment entered thereon. Herndon v. Albuquerque Pub. Schools, 92 N.M. 635, 638, 593 P.2d 470, 473 (Ct.App.1978).

"The principal test to determine whether one is an independent contractor or an employee is whether the employer has any control over the manner in which the details of the work are to be accomplished." Campbell v. Smith, 68 N.M. 373, 377, 362 P.2d 523, 526 (1961). We believe the finding that Jaramillo was not an employee is supported by substantial evidence. At trial, there was evidence that Jaramillo never received an hourly wage and that he submitted neither time slips nor employee tax forms to Mascarenas. Furthermore, the evidence was uncontroverted that the work performed by Jaramillo fell within the requirements of NMSA 1978, Section 60-13-3(A) (Repl.Pamp.1984). Therefore, he was required to obtain a contractor's license.

II. IMPLIED WARRANTY

Jaramillo asserts that the contract at issue is a contract for services and as such the U.C.C. does not apply. Therefore, Mascarenas would have no remedy under the U.C.C. for breach of implied warranty. Upon an examination of the record, we find no reference to the U.C.C. in the trial court's findings of fact or conclusions of law. Furthermore, we have long recognized that breach of implied warranty by a tradesman to perform in a skilled and workmanlike fashion is a common-law theory of recovery in New Mexico. For instance, in Garcia v. Color Tile Distributing Co., 75 N.M. 570, 573, 408 P.2d 145, 148 (1965), we recognized an implied warranty in the installation of a linoleum floor. In Clear v. Patterson, 80 N.M. 654, 656, 459 P.2d 358, 360 (1969), an implied warranty was found in the construction of a car-wash sump. We note that the installation of sewer pipes and septic tanks is similar in nature to the construction of a sump or bilge pit. Also, the contract between the parties did not contain language of exclusion or limitation of warranties. An appellate court will not disturb trial court findings that are supported by substantial evidence. Cave v. Cave, 81 N.M. 797, 799, 474 P.2d 480, 482 (1970). We hold that there

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[111 NM 413] was substantial evidence to support the trial court on the issue of breach of implied warranty.

Finally, we note that the trial court concluded that Mascarenas suffered damages "[a]s a direct and proximate result of defendant's breach of contract, breach of implied warranty and/or negligence." Jaramillo does not challenge the conclusion of negligence. Thus, negligence is an independent, alternative basis upon which the judgment rests.

III. REFUND OF PAYMENTS MADE TO UNLICENSED CONTRACTOR

At trial, Mascarenas sought to recover $4,898.00 that was paid to Jaramillo pursuant to their contract. She contended that under NMSA 1978, Section 60-13-30(A) (Repl.Pamp.1984), an unlicensed contractor such as Jaramillo could not bring suit to collect compensation for his work....