Shirley v. Venaglia, 9891

• Citation: 86 N.M. 721,1974 NMSC 74,527 P.2d 316
• Decision Date: 13 September 1974
• Docket Number: No. 9891,9891
• Parties: Norma P. SHIRLEY, as Administratrix of the Estate of John W. Shirley, Deceased, et al., Plaintiffs-Appellees, v. Frank VENAGLIA et al., Defendants-Third-PartyPlaintiffs-Appellants, v. ,KINGS, INC., a New Mexico corporation, Third-Party Defendant-Appellee.
• Court: Supreme Court of New Mexico

Page 316

527 P.2d 316

86 N.M. 721

Norma P. SHIRLEY, as Administratrix of the Estate of John W.

Shirley, Deceased, et al., Plaintiffs-Appellees, v. Frank VENAGLIA et al., Defendants-Third-PartyPlaintiffs-Appellants, v. ,KINGS, INC., a New Mexico corporation, Third-Party

Defendant-Appellee.

No. 9891.

Supreme Court of New Mexico.

Sept. 13, 1974.

Rehearing Denied Oct. 18, 1974.

Marchiondo & Berry, Charles G. Berry, Mary C. Walters, Albuquerque, for defendants-third-party plaintiffs-appellants.

Sutin, Thayer & Browne, Jay D. Hertz, Albuquerque, for plaintiffs-appellees.

OPINION

MONTOYA, Justice.

This is an appeal from a judgment entered by the Bernalillo County District Court in favor of the plaintiffs. On January 17, 1964, defendants Leonard Li Petri and Amelia Li Petri, his wife, and Roy Venaglia and Catherine Venaglia, his wife (lessees), entered into a lease agreement with plaintiffs John W. Shirley and Norma P. Shirley, his wife, and August A. neuner and Celia W. Neuner, his wife (lessors), providing for a five-year rental of certain premises commencing on February 10, 1964, and terminating on February 9, 1969. Also, on January 17, 1964, Frank Venaglia and Anna P. Venaglia, his wife (guarantors), entered into a guaranty agreement whereby they agreed to indemnify said lessors against any and all losses arising from failure of said lessees to perform in accordance with the terms of the lease.

Subsequently, on November 15, 1971, lessors (Norma P. Shirley, as administratrix of the estate of John W. Shirley, deceased, and August A. Neuner and Celia W. Neuner, his wife), filed a complaint against lessees alleging they owed a total of $1,050 on the original lease, plus rent as holdover tenants at the rate of $700 per month in accordance with the terms of the lease agreement, and attorneys' fees. Plaintiffs alleged that guarantors, by reason of an indemnity agreement, were also obligated on all sums due and owing by lessees.

In their answer lessees claimed that the lease had been assigned to King's, Inc., with the consent of lessors. Upon order of the court, a third-party complaint was filed by lessees and guarantors against King's, Inc., requesting judgment against King's, Inc., if lessors should recover on their complaint. In its answer King's, Inc. alleged that lessors had agreed that the corporation's tenancy would be rent-free, 'so long as the plaintiffs were trying to sell said premises,' provided King's, Inc. would leave all equipment on the premises when it vacated the premises.

This matter was tried to the court without a jury. The trial court concluded that the lessees were liable to the extent of $20,150 for rentals due, $3,000 attorneys' fees, and costs of suit. In addition, guarantors were declared jointly and severally liable with lessees pursuant to the indemnity agreement for the rentals due and attorneys' fees.

On August 3, 1973, lessees moved to vacate the judgment and dismiss the complaint for failure of lessors to join Norma Shirley individually as an indispensable party plaintiff. After a hearing on August 10, 1973, the trial court denied the motion and ordered the judgment entered to be modified to include Mrs. Shirley as a party plaintiff. Thus, on August 12, 1973, an amended judgment was entered making all findings of fact and conclusions of law applicable to Mrs. Shirley individually, but the adjudging part of the decree only entered judgment in favor of Mrs. Shirley in her capacity as administratrix. The court further ordered that lessees and guarantors were awarded judgment against third-party defendant King's Inc.

The first contention of lessees and guarantors is that the entire judgment should be vacated for failure of lessors to join an indispensable party. As pointed out above, the court, after trial when presented with a motion to dismiss the complaint for failure to join Mrs. Shirley as an indispensable party plaintiff, denied the motion. However, it modified the judgment to make her a party plaintiff in her individual capacity, and specifically found that all prior findings of fact and conclusions of law--

'are equally applicable to Norma P. Shirley, Individually, and that the addition of Norma P. Shirley, Individually, as a Party Plaintiff herein and the application of the Findings of Fact and Conclusions of Law to her does not change the facts or affect the issues so as to require any further proceedings herein.'

Joinder of parties under such circumstances is recognized by our Rule 21, Rules of Civil Procedure (§ 21--1--1(21), N.M.S.A., 1953 (Repl. Vol. 4, 1970), which states in part:

'* * *. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. * * *'

In Smith v. Castleman, 81 N.M. 1, 462 P.2d 135 (1969), the joinder of indispensable parties after trial was approved where the party joined would not be prejudiced. The opposite situation as is present here existed in that case, where a Mrs. Smith, individually, was the plaintiff and she was joined after trial as a party plaintiff in her capacity as administratrix of the estate of her deceased husband. We found that such action was not reversible error and remanded the cause to the trial court with direction to grant a new trial on the sole issue of whether on October 30, 1968 (the date of the decision), she was the duly qualified administratrix of the estate of J. M. Smith, deceased, and, if so, to enter judgment in her favor.

In the instant case, there can be no prejudice to Mrs. Shirley individually. She testified at the trial. The outcome of the proceedings would not have been any different. Accordingly, we hold that the trial court's action in allowing the joinder after trial was proper. Therefore, it is unnecessary for us to consider the issue of waiver or the question of lack of jurisdiction because of failure to join an indispensable party.

Secondly, lessees and guarantors contend that an assignment of the lease and a novation occurred by agreement of the parties, and by reason thereof they were not liable for any holdover rentals. The trial court's finding No. 12 states that:

'The Lease was not modified, was not assigned, and there was no substitution of parties to the Lease, i.e., there was no novation.'

In order for this court to overturn this finding of the trial court there must be a lack of substantial evidence upon which the trial court could base its finding, for:

'It is well settled in New Mexico that the appellate court will not substitute its judgment for that of the trial court in weighing the evidence. If the trial court's findings are supported by substantial evidence, they must be affirmed. (Citation omitted.) * * *.'

Tome Land & Improvement Co. v. Silva, 83 N.M. 549, 552, 494 P.2d 962, 965, (1972). Substantial evidence means such relevant evidence as a reasonable man might find adequate to support a conclusion. Cave v. Cave, 81 N.M. 797, 474 P.2d 480 (1970). A review of the complete record reveals that there was extensive...