Reichert v. Atler

• Decision Date: 18 December 1992
• Docket Number: No. 11856,A-MI-GUSTO,11856
• Citation: 117 N.M. 628,1992 NMCA 134,875 P.2d 384
• Parties: Joseph REICHERT, Personal Representative of the Estate of Alfredo Castillo, Deceased, Plaintiff-Appellee, v. Tony ATLER and Josie Atler, d/b/a theLOUNGE, Defendants-Appellants.
• Court: Court of Appeals of New Mexico

Page 384

875 P.2d 384

117 N.M. 628

Joseph REICHERT, Personal Representative of the Estate of Alfredo Castillo, Deceased, Plaintiff-Appellee, v. Tony ATLER and Josie Atler, d/b/a the A-MI-GUSTO LOUNGE,

Defendants-Appellants.

No. 11856.

Court of Appeals of New Mexico.

Dec. 18, 1992.

Certiorari Granted Feb. 11, 1993.

[117 N.M. 629] Robert Dale Morrison, Law Offices of Robert Dale Morrison, Albuquerque, for defendants-appellants.

Louis Marjon, Clark Varnell, James C. Ellis, James C. Ellis, Attorney at Law, P.C., Albuquerque, for plaintiff-appellee.

OPINION

DONNELLY, Judge.

The previous opinion of the Court, filed on November 17, 1992, is withdrawn and the following is substituted.

Defendants, Tony and Josie Atler, doing business as the A-Mi-Gusto Lounge, appeal from a judgment entered by the district court following a bench trial, which awarded Plaintiff damages for the wrongful death of a patron. Defendants raise three issues on appeal: (1) whether the failure to join an indispensable party constitutes a jurisdictional defect requiring reversal; (2) whether there was substantial evidence indicating that Defendants had notice that the decedent was in danger; and (3) whether the amount of the award against Defendants should be reduced under the doctrine of comparative fault. Defendants have abandoned a fourth issue raised in their docketing statement. See State v. Fish, 102 N.M. 775, 701 P.2d 374 (Ct.App.1985) (issues listed in the docketing statement but not briefed are deemed abandoned). Affirmed in part and reversed in part.

On the evening of December 20, 1985, Alfredo Castillo (Castillo), Plaintiff's decedent, arrived at the A-Mi-Gusto Lounge (Lounge) in Bernalillo County. When Castillo entered the Lounge between 7:00 and 8:00 p.m., it was crowded with approximately 100 customers.

Shortly after arriving at the Lounge, Castillo became embroiled in an argument with another patron, Pablo Ochoa (Ochoa). Ochoa had been on the premises since mid-afternoon, drinking and playing pool. The altercation occurred in front of Deborah Espinosa (Espinosa), a Lounge employee and the daughter of Defendants. The argument was suspended when Castillo asked Espinosa to cash a check; however, it soon resumed. Espinosa made no attempt to intervene or summon the police. As the argument escalated, Ochoa produced a pistol and shot Castillo six times, causing his death. At the time of the shooting, Defendants had only one employee to provide security; however, the security guard was not present and was not scheduled to go on duty until 9:00 p.m. Another employee made a visual inspection of patrons as they entered the Lounge.

Plaintiff, as Personal Representative of the Estate of Alfredo Castillo, brought suit against Defendants for wrongful death. Following a trial on the merits, the district court adopted findings of fact and conclusions of law determining that Defendants, as owners of the Lounge, owed a duty to Castillo and their patrons to provide adequate security and staff to protect them from unreasonable and foreseeable risks of danger; that Defendants were aware of Ochoa's propensity for violent behavior; and that Defendants and their employees failed to properly respond to the argument or to take appropriate security measures. Based upon its findings of negligence, the district court entered a judgment awarding damages against Defendants in the amount of $268,300, together with costs. Castillo was not found to have been contributorily negligent.

Subsequent to the entry of judgment, the district court also adopted alternative findings of fact and conclusions of law finding that Castillo's death was proximately caused by the concurrent fault of Defendants and Ochoa; and that the "Defendants, Tony Atler and Josie Atler [were] thirty-three and one third (33 1/3) per cent at fault and Pablo Ochoa [was] sixty-six and two thirds (66 2/3) per cent at fault in connection with the death of Alfredo Castillo." The alternative findings of fact and conclusions of law adopted by the district court, however, were not incorporated into its judgment.

I. INDISPENSABLE PARTY

Defendants deny that they were the owners of the Lounge at the time of the shooting and contend that the judgment must be set aside because of the failure to join Otlier's, Inc. (Otlier's) as an indispensable party. See SCRA 1986, 1-019(A) (Repl.1992). Specifically, Defendants contend that (1) Otlier's was the actual owner of the Lounge; (2) the district court implicitly found that Otlier's was an indispensable party when it entered its findings and conclusions on remand; (3) the district court erred by concluding that Defendants had waived their defense of the failure to join an indispensable party or that they were estopped from raising the defense on appeal; and (4) failure to join Otlier's as an indispensable party deprived the district court of jurisdiction.

We need not address all of Defendants' contentions. For the reasons discussed below, we hold that Defendants cannot prevail on their indispensable-party claim because they have not shown any prejudice to Otlier's resulting from the failure to join Otlier's as a party at trial.

While this appeal was pending, our Supreme Court overruled its prior decision of Holguin v. Elephant Butte Irrigation District, 91 N.M. 398, 575 P.2d 88 (1977), which characterized the failure to join an indispensable party as a jurisdictional defect. See C.E. Alexander & Sons, Inc. v. DEC Int'l, Inc., 112 N.M. 89, 811 P.2d 899 (1991). The Court in C.E. Alexander & Sons, Inc., taking notice of decisions construing Rule 1-019, held that under the provisions of the current rule, a failure to join an indispensable party is no longer considered jurisdictional and that the present rule requires the district court to balance the factors set forth in the rule to determine whether the action should continue in the absence of an indispensable party. Id.; see also R. 1-019(B). C.E. Alexander & Sons, Inc. also held that while a claim of failure to join an indispensable party under Rule 1-019 may be raised for the first time on appeal, an appellant making such a claim must show that the failure to join the indispensable party is prejudicial to the party not joined. Id.

We first inquire whether Defendants raised this claim prior to appeal, so as to trigger our review under an abuse-of-discretion standard, or whether they have raised this issue for the first time on appeal, in which event they would be required to show that Otlier's was prejudiced by its absence. See id. In their answers to Plaintiff's complaint, Defendants stated that Plaintiff failed to name an indispensable party, but did not identify the party. After the filing of the initial appeal in this case, we granted Defendants' motion to remand and directed the district court to permit an evidentiary hearing to consider the issue of whether Otlier's was an indispensable party and the related issues of waiver and estoppel. The district court found that Ochoa was the only indispensable party brought to the attention of the court prior to appeal, noting that Defendants' initial motions to dismiss asserted that Ochoa was the indispensable party referred to in Defendants' answers. These findings are supported by defense counsel's own statements, conceding that he did not raise a Rule 1-019 claim based on Otlier's absence prior to this appeal.

Although the district court concluded that Defendants waived the Rule 1-019 claim and were estopped from raising it on appeal, we need not reach those issues. Under the analysis articulated in C.E. Alexander & Sons, Inc., because Defendants raised the nonjoinder of Otlier's for the first time following the entry of judgment, Defendants are required to show that the corporation's interests were prejudiced by its absence. The district court found that Otlier's was not prejudiced by its absence because 100% of the fault had been apportioned among other parties. We think this finding is dispositive of this issue. Nothing in Defendants' briefs or in the record herein indicates Otlier's was prejudiced by its failure to be joined as a party. We therefore affirm on this issue.

II. EVIDENCE OF NEGLIGENCE

Defendants contend that there is an absence of any admissible evidence indicating they had notice that Castillo was in any danger from Ochoa prior to the shooting. Although Defendants have focused on the admissibility of Espinosa's deposition, we also construe this portion of their brief as an attack upon the district court's conclusions that they were negligent. In reviewing this issue we do not consider Defendants' assertions that they did not own the Lounge and, thus, should not be held accountable for the failure to provide adequate security or the failure of their employee to intervene or summon assistance. Their requested conclusions of law recited that they were the owners of the Lounge. Moreover, Defendants' brief-in-chief fails to refer to all facts relevant to their arguments as to the insufficiency of the evidence.

Defendants, as owners of the Lounge, were under a duty to exercise reasonable care to protect Castillo from harm. In New Mexico,

"the proprietor of a place of business who holds it out to the public for entry for his business purposes, is subject to liability to guests who are upon the premises and who are injured by the harmful acts of third persons if, by the exercise of reasonable care, the proprietor could have discovered that such acts were being done or about to be done, and could have protected against the injury by controlling the conduct of the other patron."

Valdez v. Warner, 106 N.M. 305, 307, 742 P.2d 517, 519 (Ct.App.1987) (quoting Coca v. Arceo, 71 N.M. 186, 189, 376 P.2d 970, 973 (1962)); see also Restatement (Second) of Torts Sec. 344 (1965).

The district court concluded (1) that Defendants breached their duty as owners of the Lounge by negligently failing to maintain adequate security, and (2) that Defendan...