Rito Cebolla Investments, Ltd. v. Golden West Land Corp.

• Decision Date: 12 February 1980
• Docket Number: Nos. 4039,3561,s. 4039
• Citation: 94 N.M. 121,1980 NMCA 28,607 P.2d 659
• Parties: RITO CEBOLLA INVESTMENTS, LTD., Plaintiff-Appellant, v. GOLDEN WEST LAND CORPORATION, a New Mexico Corporation, Albuquerque National Bank, Bill Wilcox and T. M. Clear, Defendants-Appellees, RITO CEBELLO INVESTMENTS, LIMITED, Plaintiff-Appellant, v. GOLDEN WEST LAND CORPORATION, a New Mexico Corporation, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 659

607 P.2d 659

94 N.M. 121

RITO CEBOLLA INVESTMENTS, LTD., Plaintiff-Appellant, v. GOLDEN WEST LAND CORPORATION, a New Mexico Corporation,

Albuquerque National Bank, Bill Wilcox and T. M.

Clear, Defendants-Appellees, RITO CEBELLO INVESTMENTS, LIMITED, Plaintiff-Appellant, v. GOLDEN WEST LAND CORPORATION, a New Mexico Corporation,

Defendant-Appellee.

Nos. 4039, 3561.

Court of Appeals of New Mexico.

Feb. 12, 1980.

Charles G. Berry, Marchiondo & Berry, P.A., Albuquerque, for plaintiff-appellant

Peter J. Adang, Alan K. Konrad, Modrall, Sperling, Roehl, Harris & Sisk, Albuquerque, for defendants-appellees.

OPINION

SUTIN, Judge.

This appeal involves two related cases consolidated for disposition. Cause No. 3561 involves the issue of proper venue and cause No. 4039 involves summary judgment granted defendants. Each case will be separately discussed.

A. In Cause No. 3561, Mora County was not the proper venue.

Plaintiff, Rito Cebolla Investments Limited (Rito Cebolla) sued defendant, Golden West Land Corporation (Golden West) in Mora County for damages arising out of alleged misrepresentations made by Golden West to Rito Cebolla in the sale of real estate located in Mora County. Golden West filed an answer and motion to dismiss for improper venue. The motion was sustained and an order of dismissal entered. Rito Cebolla appeals. We affirm.

After a hearing, the trial court found that Rito Cebolla and Golden West were New Mexico corporations, each with its principal place of business in Bernalillo County; that this was a suit in damages arising out of alleged misrepresentations of Golden West with regard to the execution of a contract which induced Rito Cebolla to consummate the contract; that the action did not affect the title to, or ownership of, the property and that neither party could be found in Mora County. Rito Cebolla challenged the following additional finding of fact:

6. The contract between the Plaintiff and Defendant was made and executed in Bernalillo County, New Mexico, and was to be performed in Bernalillo County, New Mexico.

The court concluded that this was a transitory action and venue in Mora County was improper.

Section 38-3-1(A), the venue statute, reads in pertinent part:

(A)ll transitory actions shall be brought in the county where either the plaintiff or defendant . . . resides; or . . . in the county where the contract sued on was made or is to be performed . . . .

Rito Cebolla argues that there is no evidence to support finding No. 6. We disagree. Its verified complaint alleges that the representations made by Golden West culminated in three executed real estate contracts filed in Mora County, describing the place of recordation. Rito Cebolla then alleged:

8. DEFENDANT is in possession of duplicate originals of the aforesaid real estate contracts and the real estate contracts themselves have been filed with the Clerk of Mora County, New Mexico and by this reference are made a part hereof. (Emphasis added.)

These three contracts are a matter of record and included in the complaint. Golden West's answer brief attached two of the three real estate contracts recorded, as defendant's Exhibits A and C. On motion of Rito Cebolla, this Court struck these contracts from the brief, but retained them in the file as a part of the complaint. These contracts show that they were made, executed and to be performed in Bernalillo County.

Even if we deleted the court's finding No. 6, we would be left with a transitory action involving a plaintiff and defendant both of whom are "residents" of Bernalillo County. Bernalillo County was the only county with proper venue. As Justice Moise said in Torres v. Gamble, 75 N.M. 741, 743, 410 P.2d 959, 960 (1966):

The statute quoted above is to our minds clear and unambiguous. It says that when there are two plaintiffs in a law suit the action may be brought in the county in which either of them resides. We perceive of no room for interpretation where they were both necessary and indispensable.

The order of dismissal is affirmed with leave granted Rito Cebolla to file the same complaint in Bernalillo County free of any defense of the statute of limitations. Filing the suit in Mora County was a mistake, not negligence, and, under § 37-1-4, N.M.S.A. 1978, Rito Cebolla is entitled to a continuous cause of action.

B. In cause No. 4039, summary judgment is affirmed.

On May 22, 1978, pending the appeal of cause No. 3561, supra, Rito Cebolla sued Golden West, the Albuquerque National Bank, an escrow agent, Bill Wilcox and T. M. Clear in seven counts, seeking among other things, damages, an order of restoration and rescission. Rito Cebolla's complaint stands alone in this appeal.

Defendants filed a motion to dismiss or for summary judgment "for the reasons that the statute of limitations has run on the claims set forth in the Complaint and for the further reason that Mora County Cause No. 5745 (being cause No. 3561, supra ) is res judicata of the issues involved herein." (Emphasis added.)

The statute of limitations, which is an affirmative defense to be pleaded, may be raised in a motion for summary judgment. Stewart v. Hood Corporation, 95 Idaho 198, 506 P.2d 95 (1973); Hebert v. Jarvis & Rice & White Insurance Inc., 134 Vt. 472, 365 A.2d 271 (1976); Annot. Raising Statute of Limitations by Motion for Summary Judgment, 61 A.L.R.2d 341 (1958).

However, the trial court found "that no genuine issue of material fact exists with regard to plaintiff's claim," and ordered that defendants' motion be granted, and plaintiff's complaint dismissed with prejudice. On appeal, Rito Cebolla limits its argument to the issues of statute of limitations and the doctrine of res judicata. If this were the basis upon which summary judgment was granted, we would agree. But the summary judgment was not limited in scope and no action was taken in the district court to amend the summary judgment. After the hearing, the court requested letter briefs. Both parties submitted them and they appear in the transcript. Golden West sought unlimited summary judgment in which the statute of limitations and res judicata played some roles. Instead of responding simultaneously, Rito Cebolla was delayed and answered the claims made by Golden West. It is too late in the day for Rito Cebolla to press for a summary judgment limited to the application of the statute of limitations and res judicata. It also filed a series of motions in this Court: (1) to supplement the record by including a deposition taken of an officer in the case of Rito Cebolla v. The Marrujos, No. 5712, a separate cause of action in Mora County; this motion was denied; (2) a motion to strike from its answer brief references to a letter brief filed by Golden West; this motion was granted; it should have been denied because Rito Cebolla responded late to Golden West's letter brief; (3) a motion to remand this cause to the district court to correct the record and supply all matters of record; this motion was denied; (4) a motion to strike references in Golden West's answer brief, which motion is now denied. We shall repeat what we said in Michael v. Warner/Chilcott, 91 N.M. 651, 653, 579 P.2d 183, 185 (Ct.App.1978):

. . . In a complex, complicated case in which summary judgment is granted or denied, the burden is on the losing party to delineate the proceedings in the court below, preserve a record of the hearing, the comments of the court and seek a clear ruling on the issues involved and determined. Otherwise, on appeal, we shall use any reasonable basis disclosed by the record to uphold the order of the trial court.

We shall now discuss the summary judgment granted Golden West.

The gist of Rito Cebolla's complaint is:

(1) Rito Cebolla relied upon two representations made by Golden West which induced Rito Cebolla to enter into three real estate contracts, two of which were filed in Mora County on March 17, 1972, and one filed on September 6, 1972, subject to reservations and easements of record. (One of them was dated December 13, 1971 and signed on December 15, 1971, one was dated December 30, 1971 and signed on January 3, 1972. The third contract that conveyed 60 acres is not before us.)

(2) The misrepresentations made were:

(a) that Golden West had clear title, subject to an oral timber contract to Donaciano Marrujo for removal of existing timber 18 inches in diameter or larger with knowledge that Rito Cebolla would subdivide the land and sell small lots to purchasers who would build on the property. (b) that Golden West assured Rito Cebolla that the timber contracts would not interfere with subdividing, clearing of land by purchasers and that Marrujos' removal of timber would be with the peaceful cooperation of Rito Cebolla.

(3) These misrepresentations caused extensive damages.

(4) On March 23, 1978, without notice, Golden West withdrew the real estate contracts from the escrow department of defendant Albuquerque National Bank in violation of the 30 day default notice, which withdrawal damaged Rito Cebolla.

The prayer for relief was:

(1) Rito Cebolla suffered damages.

(2) That Rito Cebolla's position should be restored by order of court and that thereafter specific performance of the real estate contract be ordered, or in the alternative,

(3) Rito Cebolla is entitled to rescission and a recovery of all payments made and damages incurred.

In addition to the motion for summary judgment, defendants filed a lengthy undisputed affidavit of T. M. Clear confirmed by Bill Wilcox which detailed the history of events surrounding the transactions between Rito Cebolla, Golden West, T. M. Clear, Bill Wilcox and Donaciano Marrujo, together with 12 documents attached thereto as exhibits:

(1) Deed from Marrujo to Wilcox and Clear dated April 17, 1969 which reserved to Marrujo mineral and certain timber rights recorded April 29, 1969.

(2) Deed from Wilcox and Clear to Golden West Corporation dated April 10, 1969,...