Padilla v. Estate of Griego
| Decision Date | 17 February 1992 |
| Docket Number | No. 11668,11668 |
| Citation | 113 N.M. 660,830 P.2d 1348,1992 NMCA 21 |
| Parties | Raymond E. PADILLA, Plaintiff-Appellee, v. ESTATE OF Tomas S. GRIEGO, deceased, and Martha S. Griego, d/b/a Mountain View Bar, Defendants-Appellants. |
| Court | Court of Appeals of New Mexico |
Defendants, the Estate of Tomas S. Griego, deceased, and Martha S. Griego, d/b/a Mountain View Bar, appeal from district court orders granting summary judgment to Plaintiff, Raymond E. Padilla, and denying Defendants' motion for relief from the summary judgment. The judgment awarded Padilla $250,000 in compensatory damages against Defendants, jointly and severally, and also awarded Padilla $50,000 in punitive damages against Martha Griego. We affirm.
On August 29, 1986, Padilla filed a complaint against Defendants, alleging that he was assaulted by Tomas Griego on October 4, 1983, at the Mountain View Bar, which was owned by Martha Griego. The complaint alleged that she was liable for compensatory damages under the doctrine of respondeat superior and was liable for punitive damages for permitting Tomas Griego to operate the bar when she knew or should have known of his violent and cruel disposition and the danger he posed to patrons.
The district court granted Padilla's Motion for Summary Judgment on June 15, 1989. The Motion for Summary Judgment relied on an affidavit by Padilla, matters admitted in the answers to the Complaint filed on behalf of Defendants, and matters deemed admitted by Defendants' failure to respond to requests for admissions served upon them by Padilla. Defendants did not respond to the Motion for Summary Judgment, did not appear at the pretrial conference at which the district court considered the Motion, and did not appear at the hearing at which Padilla's counsel presented the Order Granting Summary Judgment to the district court for signature. On June 23, 1989, barely a week after the filing of the summary judgment, Defendants moved for relief from the judgment under SCRA 1986, 1-059 and 1-060(B). The motion and accompanying affidavits asserted that Defendants were unaware of their attorneys' failure to respond to various pleadings filed in the case and claimed that they had a meritorious defense in that Tomas Griego was physically incapable of committing the alleged assault and that he was not an agent, servant, or employee of the bar. The district court denied the motion.
Defendants' sole contention in their appeal from the summary judgment is that the district court lacked jurisdiction over the subject matter of the Complaint. Defendants rely on NMSA 1978, Section 37-2-4 (Repl.Pamp.1990), which reads:
No action pending in any court shall abate by the death of either, or both, the parties thereto, except an action for libel, slander, malicious prosecution, assault or assault and battery, for a nuisance or against a justice of the peace [magistrate] for misconduct in office, which shall abate by the death of the defendant.
Tomas Griego had died by the time Padilla filed his Complaint. Defendants argue that therefore the district court had no jurisdiction to consider the civil action for assault against the Estate, nor did it have jurisdiction against Martha Griego because, in their view, the Complaint against her was premised solely on respondeat superior liability for the actions of Tomas Griego. Defendants' argument is raised for the first time on appeal. No pleading in district court refers to Section 37-2-4.
Defendants' jurisdictional argument was resolved by our supreme court in a decision handed down shortly after the briefs were filed in this case. Sundance Mechanical & Utility Corp. v. Atlas, 109 N.M. 683, 789 P.2d 1250 (1990) holds that "the failure of a complaint to state a cause of action does not interfere with or detract from the court's subject-matter jurisdiction[.]" Id. at 689, 789 P.2d at 1256. The court reasoned that it would not be possible to determine whether a petitioner successfully stated a cause of action unless the court had jurisdiction to examine the claim. In other words, "[i]f the facts pleaded must constitute a cause of action before the court has jurisdiction, then who is to determine that fact?" Id. (quoting Abraham v. Homer, 102 Okl. 12, 226 P. 45, 49 (1924)).
On occasion, however, the term "jurisdictional error" is used loosely to refer simply to an error that can be raised for the first time on appeal. Particularly because the opinion in Sundance was not available to Defendants before they filed their briefs in this case, they may have used the word "jurisdiction" in this sense. We therefore consider the possibility that their contention under Section 37-2-4, although not a true "jurisdictional" claim, is nevertheless properly before this court on appeal.
Our Rules of Civil Procedure strongly imply that a contention that a complaint fails to state a claim upon which relief can be granted must be made prior to appeal. SCRA 1986, 1-012(H) states as follows:
Waiver or preservation of certain defenses.
(1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process or insufficiency of service of process is waived:
(a) if omitted from a motion in the circumstances described in Paragraph G of this rule; or
(b) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 1-015 to be made as a matter of course.
(2) A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under Rule 1-019 and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under Rule 1-007, or by motion for judgment on the pleadings, or at the trial on the merits.
(3) Whenever it appears by suggestions of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.
The rule describes three categories of defenses. The first category--including lack of jurisdiction over the person, etc.--must be raised promptly, usually in the answer. The third category--lack of jurisdiction of the subject matter--can be raised at any time. The second category--which includes failure to state a claim upon which relief can be granted--can be made "at the trial on the merits."
The structure of the rule indicates that the defense of failure to state a claim cannot ordinarily be raised after the trial on the merits. This appears to be the interpretation that the federal courts have uniformly given to Federal Rule of Civil Procedure 12(h), which is in all material respects identical to our Rule 1-012(H). As stated in 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure Sec. 1392, at 763 (1990):
According to the plain language of Rule 12(h)(2), the three enumerated defenses [including failure to state a claim upon which relief can be granted] are waived if they are not presented before the close of trial. Thus, for example, they may not be asserted for the first time on appeal. Nor can these defenses be asserted through any type of post-trial motion. [Footnote omitted.]
Accord Brule v. Southworth, 611 F.2d 406, 409 (1st Cir.1979); Weaver v. Bowers, 657 F.2d 1356, 1360 (3d Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982); Madore v. Ingram Tank Ships, Inc., 732 F.2d 475, 479-80 (5th Cir.1984); Black, Sivalls & Bryson v. Shondell, 174 F.2d 587, 590-91 (8th Cir.1949); Simpson v. Providence Wash. Ins. Group, 608 F.2d 1171, 1174 (9th Cir.1979); Snead v. Department of Social Servs., 409 F.Supp. 995, 1000 (S.D.N.Y.1975) (three-judge court); Gonzales v. Union Carbide Corp., 580 F.Supp. 249, 252-53 (N.D.Ind.1983).
If we were to rely on this authority, we would refuse to consider Defendant's contentions predicated on Section 37-2-4. Sundance, however, states that in New Mexico the rule is otherwise. 109 N.M. at 690, 789 P.2d at 1257. Several appellate opinions, ultimately deriving from Baca v. Perea, 25 N.M. 442, 184 P. 482 (1919) which predated our rules of civil procedure, indicate that the defense of failure to state a claim may be raised for the first time on appeal. We therefore proceed to the merits.
By its terms, Section 37-2-4 does not apply to the Complaint filed in this case. The Complaint was filed after the death of Tomas Griego. Section 37-2-4 applies only when death occurs while an action is pending; it describes which pending actions abate when one of the parties dies. The statute governing which actions can initially be brought is NMSA 1978, Section 37-2-1 (Repl.Pamp.1990). Sections 37-2-1 and 37-2-4 were originally enacted by the territorial legislature in 1884. For convenience, we shall refer to all predecessors of Sections 37-2-1 and 37-2-4 by these section numbers, although the section numbers actually varied with the codification. In 1884 Section 37-2-1 read:
In addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to real or personal estate, or for any deceit or fraud, shall also survive, and the action may be brought, notwithstanding the death of the person entitled or liable to the same.
1884 N.M.Laws, ch. 5, Sec. 1. One would expect the two sections of the 1884 law to be...
To continue reading
Request your trial
-
Hinger v. Parker & Parsley Petroleum Co.
...such a rule, which has already given rise to well-deserved expressions of concern from this Court. See Padilla v. Estate of Griego, 113 N.M. 660, 665, 830 P.2d 1348, 1353 (Ct.App.1992). No New Mexico civil case has permitted a litigant to fashion legal objections to jury instructions for th......
-
Nordwall v. PHC-Las Cruces, Inc.
...which actions can initially be brought [after the tort victim's death] is NMSA 1978, Section 37–2–1.” Padilla v. Estate of Griego, 113 N.M. 660, 663, 830 P.2d 1348, 1351 (Ct.App.1992). The Tenth Circuit has explicitly characterized Rehabilitation Act claims as personal injury claims: “Becau......
-
Eldin v. Farmers Alliance Mut. Ins. Co.
...refused this offer. Although we recognize that a client is bound by the errors of his or her attorney, Padilla v. Estate of Griego, 113 N.M. 660, 665, 830 P.2d 1348, 1353 (Ct.App.1992), we believe that unless it is shown how Farmers was substantially prejudiced by Insureds' breach, strict e......
-
1998 -NMCA- 161, Adams v. Para-Chem Southern, Inc.
...New Mexico case law casts doubt on the continuing vitality of these propositions. For example, in Padilla v. Estate of Griego, 113 N.M. 660, 664, 830 P.2d 1348, 1352 (Ct.App.1992), summary judgment was entered against a defendant at least in part because of defense counsel's "extreme" negli......