Skarda v. Skarda
| Decision Date | 28 May 1975 |
| Docket Number | No. 9680,9680 |
| Citation | 1975 NMSC 28,87 N.M. 497,536 P.2d 257 |
| Parties | Cash T. SKARDA, Plaintiff-Appellant, v. Lynell G. SKARDA, Individually and as Executor of the Estate of A. W. Skarda, Deceased, Langdon L. Skarda, Carolyn Ardery Skarda and the Citizens Bank of Clovis, New Mexico, Defendants- Appellees. |
| Court | New Mexico Supreme Court |
This action originated in the District Court of Curry County, New Mexico, where plaintiff (appellant) sought damages against the defendant, Lynell G. Skarda, both individually and as the executor of the estate of A. W. Skarda, deceased; and Langdon L. Skarda; Carolyn Ardery Skarda, and the Citizen's Bank of Clovis, New Mexico (defendants). From summary judgments granted in favor of each of the defendants, the plaintiff has taken this appeal.
Appellant's complaint set out twelve separate claims for relief and appellant prayed for a jury trial thereon. The various grounds upon which relief was sought were predicated upon allegations set out in the complaint and asserting that: (1) certain of the defendants wrongfully converted assets of decedent and the proceeds of a loan by decedent and procured the wrongful issuance of bank stock; (2) defendants Lynell G. Skarda and Langdon L. Skarda failed to account for assets of the decedent's estate and conspired to defraud appellant of his inheritance; (3) decedent owned an interest in a pension trust in defendant bank, which appellant claimed a right of inheritance; (4) appellant was wrongfully deprived of certain bank stock from decedent's estate; (5) the executor of the decedent's estate negligently failed to collect alleged assets of decedent's estate and negligently failed to discharge certain obligations of the estate; (6) appellant was fraudulently deprived of certain estate assets; (7) certain of the defendants conspired to deprive him of the value of his inheritance; (8) the appellant was entitled to an accounting of profits and certain assets of decedent's estate; (9) appellant was entitled to damages equal to one-third of the value of decedent's estate; (10) appellant was entitled to an award of damages from an alleged conspiracy to deprive the appellant of an interest in ranch property; (11) appellant was entitled to an accounting of certain real estate and that defendants should be ordered to convey an undivided one-third interest in a ranch to appellant; and (12) certain of the defendants claimed a wrongful offset and improperly refused to advance monies from the estate of decedent to the appellant.
The majority of the claims asserted by appellant in his complaint arose from the alleged mishandling of the administration of the estate of appellant's father by the executor of the estate.
Appellant's father, A. W. Skarda, died on December 13, 1967, leaving a last will and testament which named as beneficiaries the decedent's three surviving sons: Langdon L. Skarda, Lynell G. Skarda, and Cash T. Skarda. Decedent left no other surviving children and died a single man. Appellant's brother, Lynell G. Skarda, was named by the decedent as executor of his last will and testament.
Decedent's last will and testament was offered and duly admitted to probate in the Probate Court of Curry County, New Mexico. During the course of the probate proceedings, appellant also filed this suit in the District Court of Curry County, New Mexico, against his two brothers and the other named defendants herein. The district court granted summary judgment against appellant and this appeal was taken therefrom.
The motion for summary judgment raised nineteen separate grounds upon which the motion was based.
Appellant, after the filing of the complaint herein, sought to take the depositions of the defendants but the lower court entered a protective order preventing appellant from taking such depositions. Thereafter, appellant filed his affidavit in response to appellees' motion for summary judgment. On April 20, 1972, the lower court entered its order staying all further proceedings in the case.
Appellant's affidavit generally contained allegations similar to those matters pleaded in the plaintiff's complaint, and also asserted: 'That each of the parties whose depositions were sought to be taken by the plaintiff in this action have personal knowledge which will support plaintiff's allegations in said complaint and that said testimony is not available to the plaintiff to be presented in affidavit form and can only be obtained under oath by the taking of said depositions under process issued by this court.'
The same judge was designated to hear both the probate case and this suit. After concluding the probate proceedings in the district court, the court heard defendants' motion for summary judgment and granted it against appellant on each of the twelve counts.
On this appeal, the appellant has raised three separate contentions: (1) the trial court erred in granting summary judgment in that it did not state its reasons for granting the motion; (2) the trial court erred in holding that there are no material issues of fact; and (3) the trial court erred in granting summary judgment on the grounds set forth in the motion for summary judgment.
In its order granting summary judgment against the appellant, the trial court adopted the following finding of fact:
'Based on the pleadings, affidavits and instruments in the file, the Court finds there is no genuine issue of material fact as to the allegations of the Complaint.'
This court held in Garrett v. Nissen Corporation, 84 N.M. 16, 498 P.2d 1359 (1972), that the trial court is not required to adopt a separate opinion or enter a recital in the record as to the exact grounds for the granting of a summary judgment beyond that required by Rule 56 of the Rules of Civil Procedure. In Garrett, the court held, in applicable part,:
'(I)n involved cases where the reason for the summary judgment is not otherwise clearly apparent from the record, the trial court should state its reasons for granting it in a separate opinion or in a recital in the judgment. * * *'
We no longer adhere to this position, and the decision of this court in Wilson v. Albuquerque Board of Realtors, supra, (81 N.M. 657, 472 P.2d 371 (1970)), insofar as it required the trial court to state reasons for granting a summary judgment in greater detail than as provided in Rule 56(c), supra, is hereby overruled.' Id. at 18, 498 P.2d at 1361.
The trial court complied with the requirements of Rule 56(c) in framing its order granting summary judgment.
Appellant's second and third points raised on this appeal are considered jointly by us. A review of the complaint filed herein indicates that each of the twelve separate counts pleaded in plaintiff's complaint, with the exception of counts three and twelve, are claims which belong to the estate of A. W. Skarda, deceased, and these claims must be initiated by the executor of the estate if action is to be taken in respect thereto.
The probate code of New Mexico delineates the means by which a third party other than the executor or administrator may properly bring an action on behalf of the estate of decedent, if compliance is first obtained with the requirements of such statutory provision. Section 31--1--26, N.M.S.A.1953, sets out in part:
'* * * In the event any executor of administrator shall fail or refuse to institute any action at law or suit for the benefit of the estate which he represents, or for the benefit of any person or persons claiming to be interested therein, or shall fail or refuse to defend any suit or action affecting such estate or the rights of any person interested therein, the person or persons interested in such estate or whose rights may be affected by the failure of such executor or administrator, either to institute or defend any such action, * * *, and when an application has been made to the court for his removal for said reason or any other reason, any heir, legatee, creditor or other person interested in the said estate, may apply to the district court for an order allowing him or them to institute or defend any such suit in the name of such executor or administrator pending an application for the removal of such executor or administrator, and said court may order such executor or administrator to allow the use of his name in the prosecution or defense of such suit, * * *.'
In the instant case, appellant did not petition the district court to remove the executor prior to filing of this suit. This court has previously held that the executor or administrator is the necessary party plaintiff to bring any action on behalf of the estate of a decedent. York v. American Nat. Bank of Silver City, N.M. 40 N.M. 123, 55 P.2d 737 (1936). In that case we held:
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