Ute Park Summer Homes Ass'n v. Maxwell Land Grant Co.

• Decision Date: 10 March 1972
• Docket Number: No. 9351,9351
• Citation: 494 P.2d 971,1972 NMSC 18,83 N.M. 558
• Parties: UTE PARK SUMMER HOMES ASSOCIATION, Incorporated, a corporation, et al., Plaintiffs-Appellees, v. The MAXWELL LAND GRANT COMPANY, a corporation, et al., Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 971

494 P.2d 971

83 N.M. 558

UTE PARK SUMMER HOMES ASSOCIATION, Incorporated, a corporation, et al., Plaintiffs-Appellees, v. The MAXWELL LAND GRANT COMPANY, a corporation, et al.,

Defendants-Appellants.

No. 9351.

Supreme Court of New Mexico.

March 10, 1972.

[83 NM 559] Paul A. Kastler, Raton, for appellants.

Robert S. Skinner, Raton, for appellees.

OPINION

STEPHENSON, Justice.

Plaintiffs-Appellees (plaintiffs) filed suit alleging that the corporate plaintiff's membership were owners of property in Ute Park cabinsite area as were the individual plaintiffs; that Defendant-Appellant (defendant) had owned, platted and sold the cabinsite area and still owned land designated on the plat as 'Golf Course,' 'Tennis Court' and 'Club House'; that the plat 'was displayed to plaintiffs and the agents and servants of defendant orally represented to plaintiffs that said tract would be reserved and developed by defendant' for such uses and purposes; that the 'representations were part of a plan or scheme of development of such cabinsite area, were material inducing factors in the sale of cabinsites by defendant, and were relied upon by plaintiffs; * * *.'

It was further alleged that defendant threatened to sell the tract in question without restriction as to its use or purpose and prayed that defendant be enjoined from making any sale of the tract 'without restriction of its use or purpose to golf course, tennis court, and clubhouse uses.' Other relief, no longer pertinent, was also sought.

This is a second appeal. See Ute Park Summer Homes Ass'n v. Maxwell Land Gr. Co., 77 N.M. 730, 427 P.2d 249 (1967) (the 'first appeal').

On the first appeal, in which plaintiffs sought reversal of an adverse summary judgment, the question presented was:

'* * * (W)hether or not some legal right in, or relative to the use of, the 'golf course' area, which right is properly enforceable by the plaintiffs, came into existence by the use of the plat and the representations by the defendant's agents in accomplishing the sales of the lots, and which legally enforceable right is still in existence.' 77 N.M. at 733, 427 P.2d at 252. (Emphasis supplied.)

The opinion on the first appeal reversed the summary judgment, holding that:

'* * * (T)he stated facts, if found to be true, would support a right in the lot owners, which is enforceable by plaintiffs, * * *' 77 N.M. at 733--735, 427 P.2d at 252.

Thereafter, trial was had and the court determined the facts to be generally as alleged by plaintiffs and entered judgment in their favor. The court found, inter alia, that some of the lots were sold by use of the plat which bore the alleged notations and that the subject area was referred to by those who showed the lots on behalf of defendant as a place where a golf course would be constructed or which would be used as a playground or recreational area. It is not claimed that these findings were not supported by substantial evidence, although they are attacked on other grounds.

The decree restricted defendant's use of the tract in question 'to a golf course, a playground, or a recreation area,' and defendant was enjoined from making any sale of the property without such restrictions on its use.

Defendant now draws our attention to the plat, pointing out that it labels the area in question 'golf course,' as contrasted with the decree, which speaks in terms of 'a golf course, a playground, or a recreation area.' Whereas in the first appeal defendant asserted that the plat violated the parol evidence rule as being an attempt to vary the deeds, it now asserts that evidence of oral statements and representations made by its agents and servants in conjunction with the plat at the time of sales violates the parol evidence rule in that such evidence tends to vary and enlarge the writing on the plat, the scope of the testimony being broader than the words on the plat. It concludes that the use should have been restricted to 'golf course.'

There are a number of answers to this line of attack. The first and most obvious, which seems to have been overlooked by the parties, is that the decree is cast in the negative--prohibitory as to defendant.

It does not say that plaintiffs have the right to use the area for a 'golf course, a playground, or recreation area.' Rather, it restricts defendant to such uses. If 'a golf course, a playground, or recreation area' (the decree) is broader than 'golf course' (the plat), and we are inclined to agree with defendant that it is, the effect in the context of the decree is to give defendant a broader array of choices as to the use of the land than would have been the case had the decree used only the words written on the plat.

Any error in the choice of words in the decree is thus favorable to defendant, and, so far as we are concerned, harmless in the absence of a cross-appeal.

Entirely apart from what we have said, the admission of testimony regarding such statements and representations was proper under the doctrine of law of the case. If an appellate court has considered and passed upon a question of law and remanded the case for further proceedings, the legal question so resolved will not be determined in a different manner on a subsequent appeal.

The doctrine of law of the case has long been recognized in New Mexico, since before statehood (E.g., Dye v. Crary, 13 N.M. 439, 85 P. 1038 (1906), aff'd 208 U.S. 515, 28 S.Ct. 360, 52 L.Ed. 595 (1908)) and since soon after statehood (E.g., McBee v. O'Connell, 19 N.M. 565, 145 P. 123 (1914)). See also Farmers' State Bank v. Clayton Nat. Bank, 31 N.M. 344, 245 P. 543, 46 A.L.R. 952 (1925) in which the court spoke at length of the doctrine, observing that 'the rule applies not only to questions specifically decided, but also to those necessarily involved.'

The most recent opinion considering law of the case at length is Varney v. Taylor, 79 N.M. 652, 448 P.2d 164 (19...