OPINION
This suit was brought by plaintiffs-appellants in the District Court of Bernalillo County to recover damages resulting from the alleged wrongful acts of defendants-appellees. The trial court granted appellees’ motions for summary judgment and denied appellants’ motion for partial summary judgment. Appellants appeal from the court’s entry of summary judgments in favor of appellees and from its denial of appellants’ motion for partial summary judgment. We reverse the court’s order granting appellees’ summary judgment motions, affirm its order denying appellants’ motion for partial summary judgment and remand.
I. FACTS
On December 20, 1972, appellant C & H Construction & Paving Co., Inc. (hereinafter referred to as C & H Construction), requested a $125,000 line of credit from appellee, Citizens Bank. The granting of the loan was conditioned upon C & H Construction’s giving the bank a security interest in its accounts receivable. C & H Construction refused to give such an interest and, consequently, Citizens Bank denied the loan application. On December 28, 1972, C. R. Davis, acting on behalf of C & H Construction, executed a $50,000 promissory note to the bаnk. In order to secure this loan, Davis, again acting on behalf of C & H Construction, entered into a security agreement giving Citizens Bank a security interest in the accounts receivable of C & H Construction. The loan was paid on January 10, 1973. Appellees, E. M. Wilson and James Arrott (hereinafter referred to as Wilson and Arrott respectively), allegedly represented to Davis that the agreement would apply only to the December 28 loan and not to any previous loans given to C & H Construction by the bank. They also allegedly represented that the agreement would not be filed.
On January 2, 1973, Citizens Bank filed the financing statement accompanying the December 28 security agreement. Sometime in the middle of January, 1973, Arrott informed C. R. Davis of the filing. He further informed Davis that the bank considered the agreement to apply to all the indebtedness owed to it by C & H Construction. Davis conveyed this information to Wilson who refused to take any action. On August 28, 1973, C & H Construction executed a promissory note to the bank in the sum of $50,000. Thе note was marked unsecured and was both a renewal and combination of previous notes owed to the bank. C & H Construction failed to pay the note when it became due.
On January 11, 1974, Citizens Bank filed in the District Court of Bernalillo County a complaint against C & H Construction, C. R. Davis, Alice J. Davis, Paul D. Wood and Wanda Wood based upon the defaulted note, the December 28 security agreement and guaranties executed by the Davises and Woods. Additionally, on the same date, the bank filed a motion against C & H Construction for an order to show cause why a receiver should not be appointed to collect C & H Construction’s accounts receivable and to show cause why C & H Construction should not submit a list of these accounts to the bank or a receiver appointed by the court. A motion for a temporary restraining order was filed by the bank on January 23, 1974, and, on that date, the court granted the motion and ordered C & H Construction and C. R. Davis to refrain from disposing or using any of C & H Construction’s accounts receivable. On February 1, 1974, a hearing was held to show cause why the temporary restraining order previously entered should not be continued as a preliminary injunction pending final determination on the merits. A preliminary injunction was granted on that date and the court permitted Fidelity National Bank to file a complaint in intervention naming James C. Davis as a third party defendant. Approximately six days later, the court entered an order appointing a receiver and directing the defendants to turn over a list of accounts receivable. Subsequently, James Davis filed a cross-claim and then an amended cross-claim against Citizens Bank. In response, the bank filed answers pleading estoppel, waiver and laches as affirmative defenses. C. R. and Alice Davis also filed a counterclaim against the bank. In its pretrial order, the court made the following determinations: (1) C. R., Alice and James Davis all allege that Citizens Bank has proceeded negligently, fraudulently and maliciously in the action and has wrongfully obtained a court order placing the аccounts receivable of C & H Construction in receivership and (2) the bank raises inter alia the defenses of laches and estoppel.
At trial, the jury was instructed on the Davises’ claim that Citizens Bank through Arrott committed fraud by inducing C. R. Davis to sign the December 28 security agreement. The defenses of estoppel and waiver raised by the bank to the claims of the Davises v ere also submitted to the jury by instruction. As grounds for these defenses, the bank asserted that the Davises did not oppose or object to the appointment of the receiver. The jury was further instructed to return a verdict for the Davises if they determined that the Davises had proved their claims and Citizens Bank had not proved any of its defenses. The jury found for the Davises and judgments were accordingly entered on the counterclaim of C. R. Davis and Alice Davis and the cross-claim of James Davis.
Citizens Bank appealed these judgments to this Court. See Citizens Bank v. C & H Const. & Paving Co., Inc.,
On October 13, 1976, C & H Construction and appellant, Founders Investments, Ltd. (hereinafter referred to as Founders), filed a second amended complaint naming Citizens Bank, Wilson, Arrott and appellee, Clarke Harvey (hereinafter referred to as Harvey), as defendants. Wilson, Arrott and Harvey were sued individually and in their capacities as director and officers of the bank. Subsequеntly, the bank filed a motion to strike counts I, II, and III of the second amended complaint on the basis of a prior court order. This order found that the claims of C & H Construction against the bank were compulsory counterclaims which should have been asserted in Citizens I. The bank’s motion to strike was granted. As a result of the granting of this motion, the only claims remaining in the suit were the claim of Founders against all defendants and the claims of C & H Construction against the individual defendants, Wilson, Arrott and Harvey. Citizens Bank, Wilson, Arrott and Harvey each moved individually for summary judgment. A separate hearing was held on Wilson’s motion against C & H Construction and Founders. The bank’s motion against Founders and Arrott’s and Harvey’s motions against C & H Construction and Founders were argued at the same hearing. At that hearing, appellants’ summary judgment motion against the bank and Harvey was also argued. This appeal is from the orders entered on each of these motions. The issues for decision are (1) whether the court properly granted appelleеs’ motions and (2) whether the court properly denied appellants’ motion. We shall first discuss Wilson’s motion and then the remaining motions.
II. Wilson’s Motion
Summary judgment is a drastic remedy to be used with great caution. Pharmaseal Laboratories, Inc. v. Goffe,
The burden rests on the party moving for summary judgment to establish that no genuine issue of material fact exists for trial and that the movant is entitled to judgment as a matter of law. If the movant fails to meet this burden, summary judgment is erroneous. N.M.R.Civ.P. 56(c), N.M.S.A.1978; Goodman v. Brock,
In response to the allegations contained in appellants’ second amended complaint and in support of his motion, Wilson submitted an affidavit stating that (1) he knew nothing of C & H Construction’s prior refusal to give Citizens Bank a security interest in its accounts receivable; (2) prior to the signing of the December 28 security agreement, he never had any conversation with Arrott or any other employee of the bank concerning the need to obtain such an agreement; (3) he did not know any of the arrangements allegedly made for securing the December 28 loan until C. R. Davis informed him of them a month or so later; at that time, Davis also informed him of the bank’s intention to apply the December 28 security agreement to previous loans given to C & H Construction by the bank; (4) for various reasons, he did not act upon this information; (5) he was not a director of the bank when it filed suit against C & H Construction or when it asked for and obtained the appointment of a receiver; and (6) he had no knowledge of the decision to request the appointment of a receiver. In opposition to Wilson’s motion, appellants submitted the affidavit of C. R. Davis. On appeal, Wilson claims that his affidavit establishes that no genuine issue of material fact exists with respect to all counts contained in appellants’ second amended complaint. We will examine each count in the order they appear.
A. Counts I and II
Both these counts allege in part that Wilson wrongfully and without proper authority had the accounts receivable of C & H Construction placed in receivership. C. R. Davis’ affidavit does not controvert Wilson’s claim that he had no knowledge of the decision to request the appointment of a receiver. Because it is uncontroverted that he did not participate in the appointment of a receiver, Wilson argues that he did not have C & H Construction’s accounts receivable placed in receivership. Accordingly, Wilson concludes that summary judgment was properly granted with respect to these counts.
Although we agree that Wilson’s affidavit establishes the absence of any factual issue concerning his participation in the receivership proceedings, we do not overlook the fact that, as part of his burden, Wilson must establish that he is entitled to judgment as a matter of law. See N.M.R. Civ.P. 56(c); Goodman v. Brock, supra. Counts I and II are based upon a general claim of wrongful action. Accordingly, to be entitled to judgment as a matter of law, Wilson must establish that he owed no duty to C & H Construction or that, if he did owe such a duty, his conduct did not constitute a breach of this duty. It is well settled that a director of a corporation has a duty tо act to prevent injuries to third parties where he has knowledge, amounting to acquiescence, of the corporation wrongful acts. Taylor v. Alston,
In so holding, we note that the court stated that Wilson could not be held liable for his failure to act on the information given to him by Davis. In light of the above legal principle, we rule that this statement is erroneous. We also note thаt Wilson argues failure on the part of C & H Construction to plead the existence of a duty to act. This argument has no merit. Counts I and II specifically alleged (1) “. . Wilson wrongfully and without proper authority had the accounts receivable of Citizens Bank [sic] attached and placed into receivership . . . ” and; (2) “As a direct and proximate result of the wrongful action of . Wilson, C & H Construction .... has been damaged . .” (Emphasis added.) Generally, in New Mexico, pleadings are to be liberally construed. See Biebelle v. Norero,
B. Count III
In this count, C & H Construction alleges in part that Wilson, with knowledge of its prior refusal to give the bank a security interest in its accounts receivable, conspired with Arrott and Harvey to obtain a security agreement from it. It is also alleged that in obtaining this security agreement, Wilson fraudulently represented that it would be used only to secure thе December 28 loan and that it would not be filed. As a result of the security agreement obtained through Wilson’s fraudulent misrepresentations, C & H Construction further alleges that it was damaged.
From the record, it appears that the court determined, as a matter of law, the sole proximate cause of appellants’ damages to be the appointment of a receiver. The court specifically stated that the transactions surrounding the procurement of the security agreement were not the cause of any damage. In making this statement, the court necessarily found that any fraudulent representations allegedly made by Wilson did not cause C & H Construction to be damaged. Wilson argues that summary judgment was properly granted because his affidavit establishes that no issue of material fact exists with respect to his participation in any of the acts that allegedly damaged C & H Construction or Founders. In making this argument, Wilson impliedly contends that the court was correct in its determination of causation. Appellants claim that causation is a question of fact. In making this claim, appellants argue that the court erred in determining causation as a matter of law. Implicit in this argument is the contention that Wilson’s affidavit fails to satisfy his burden as to count III. This contention is correct.
With respect to causation, appellants’ theory is that the following acts contributed to causing their damages: (1) the fraudulent procurement of the security agreement, (2) Wilson’s failure to act on his knowledge of the fraud and (3) the bank’s seeking the appointment of a receiver based upon this fraudulently procured security agreement. It is well settled in New Mexico that the proximate cause of an injury need not be the last act or nearest act to the injury but may be one which actually aided, as a direct and existing cause, in producing the injury. Ortega v. Texas-New Mexico Railway Company,
C. Count IV
This count alleges in part that Wilson, while acting in his capacity as chairman of the board of directors of Citizens Bank, actively participated with full knowledge in the conspiracy to obtain a security agreement by fraudulent misrepresentation and that this conduct was intentional and malicious. Wilson argues that because summary judgment was properly granted as to count III, summary judgment was proper as to count IV since the only difference between the counts is that the latter alleges even less involvement on Wilson’s part than does count III. In light of our holding that summary judgment was erroneously granted as to count III, this argument has little force. However, because our task as a reviewing court is to look at the whole record and take note of any evidence which puts a material fact in issue (Pharmaseal Laboratories, Inc. v. Goffe, supra), we examine count IV to determine whether there exists any factual issue concerning the involvement of Wilson alleged in this count.
Wilson’s affidavit states that he had no knowledge of C & H Construction’s prior refusal to give the bank a security interest in its accounts receivable and that he never had any conversation with Arrott or any other employee of the bank concerning the need to obtain such an agreement. Davis’s affidavit does not contradict these statements. We assume that Wilson’s affidavit contains these statements in order to establish the lack of any issue concerning his involvement in a conspiracy, i. e. in any antecedent agreement with Arrott and Harvey to commit an unlawful act. See Armijo v. National Surety Corp.,
This conclusion is based upon those principles for establishing a conspiracy stated by this Court in Morris v. Dodge Country, Inc.,
For a conspiracy to exist there must be a common design or a mutually implied understanding; an agreement. (Cites omitted.) A conspiracy may be established by circumstantial evidence; generally, the agreement is a matter of inference from the facts and circumstances, including the acts of the persons alleged to be conspirators. (Cite omitted.) The question is whether the circumstances, considered as a whole, show that the parties united to accomplish the fraudulent scheme. (Cite omitted.) . . . (Emphasis added.)
Id. at 492,
D. Count V
In this count, Founders alleges in part that Wilson owed it a duty not to participate in conduct to its detriment and that, as a direct and proximate result of Wilson’s wrongful acts, C & H Construction was put out of business and, as a direct and proximate result of C & H Construction’s being put out of business, Founders was uniquely and personally damaged. It is further alleged that Founders executed a continuing guarantee on the obligations of C & H Construction and, as a result of Wilson’s wrongful acts, it has been called upon to pay a certain sum of money. Relying upon the court’s determination that the appointment of a receiver was the sole cause of damage to C & H Construction, Wilson argues that his summary judgment motion was properly granted as to this count since Founders’s claim of damages is derived strictly from the damages of C & H Construction. According to Wilson, the fact that he did not participate in the appointment of a receiver and thereby did not cause any damage to C & H Construction precludes any claim of damage by Founders against him. In light of our foregoing rulings, this argument is without merit.
Wilson’s argument is based upon the assumption that the court’s determination of proximate cause as a matter of law was correct. We have already held that the court erred in determining causation as a matter of law. This holding was based upon our ruling that reasonable minds could differ on the issue of whether the fraudulent procurement of the security agreement or Wilson’s failure to act аctually aided in producing C & H Construction’s damages. Therefore, Wilson’s reliance upon this assumption is misplaced. Additionally, in moving for summary judgment, Wilson failed to establish that he owed no duty to Founders or that, if he did owe such a duty, his conduct did not breach this duty. Thus he failed to carry his burden of showing that he is entitled to summary judgment as a matter of law. Accordingly, we hold that the court erred in granting Wilson’s motion with respect to count V.
III. Citizens Bank’s, Arrott’s and Harvey’s Motions
Citizens Bank moved for summary judgment based on the doctrines of res judicata, collateral estoppel, waiver, estoppel, laches, ratification, avoidable consequences and judicial immunity. Harvey’s written motion, with the exception of avoidable consequences, is based on these same doctrines. Arrott’s written motion is not based on any specific legal doctrine. At the hearing on these motions, all three appellees joined in the motion concerning res judicata and the equitable defenses. From the record, it appears that the trial court granted the motions based on the doctrines of res judicata, collateral estoppel, waiver, estoppel, laches, ratification, avoidable consequences and judicial immunity. We will first examine the doctrines of res judicata and collateral estoppel together and then the remaining asserted doctrines.
a. Res judicata and collateral estoppel
In City of Santa Fe v. Velarde,
The doctrines of res judicata and collateral estoppel by judgment involve different and distinct principles. Res judicata in its proper application operates where there are identical parties, causes of action, subject matter, and capacities in the two cases; collateral estoppel by judgment arises where the causes of action are different but some ultimate facts or issues may necessarily have been decided in the previous case. Stated another way, whеre the causes of action in the cases are identical in all respects, the first judgment is a conclusive bar upon the parties and their privies as to every issue which either was or properly could have been litigated in the previous case. But absent the identity of causes of action, the parties are precluded from relitigating only those ultimate issues and facts shown to have been actually and necessarily determined in the previous litigation. (Cites omitted.)
Id. at 445-46,
From the record, it appears that Citizens Bank, relying upon the above doctrines, argued at the motions hearing that Founders did not have any claim against it. Apparеntly this argument was based on the assertions that;
(1) Since Founders through its president C. R. Davis and its director James Davis, knew of and participated in the proceedings to appoint a receiver in Citizens I and could have litigated its claim then, it is now barred in the present suit from asserting this claim against the bank; and
(2) Since a receiver was appointed in Citizens I, Founders’s claim was actually and necessarily determined against the defendants in these proceedings to appoint a receiver. We hold that the court erred in granting the bank’s motion based upon this argument.
It is undisputed that Founders was not a party to the Citizens I litigation. Therefore, in order for Citizens Bank to take advantage of the doctrines of res judicata and collateral estoppel, it must establish that Founders is in privity with the Davises or C & H Construction. The record of the motions hearing indicates that counsel for Harvey and for appellants asserted that Founders was in privity with C & H Construction. The bank did not join in this assertion and the record dоes not contain a stipulation concerning the issue of privity. However, no party disputed Founders’s privity before the trial court. We assume at this point that Founders was in privity either with C & H Construction or C. R. Davis. The assertions supporting the bank’s res judicata and collateral estoppel claims are based upon the receivership proceedings in Citizens I. It is well established that the doctrines of res judicata and collateral estoppel apply only to final judgments. Eastern Air Lines v. Trans Caribbean Airways,
We assume, but do not decide, that Harvey and Arrott also sought summary judgment on the basis of res judicata and collateral estoppel. Their claims are also based on the receivership proceedings in Citizens I. Since both doctrines apply only to final judgments, we hold that the trial court erred in granting summary judgment in favor of Harvey and Arrott based upon these defenses.' Accordingly, we need not discuss establishing Harvey’s and Arrott’s privity with Citizens Bank which is a prerequisite to the assertion of these defenses.
B. Waiver
Citizens Bank argues that Founders, through its agents C. R. Davis and James Davis, has waived any cause of action it may have against the bank. This argument is based upon the Davises’ failure, despite their knowledge of the bank’s claim in C & H Construction’s accounts receivable, to undertake any legal action between January 1973 and May 1976 to cancel the December 28 security agreement, to challenge the recording of the accompanying financing statement or to file a declaratory judgment. In addition, the bank contends that the existence of a waiver may be shown by the Davises’ acquiescence in the appointment of a receiver in Citizens I and by their assisting the receiver after his appointment. Arrott argues that C & H Construction and Founders, through their agent C. R. Davis, have also waived any claim they may have against him. As evidence of this waiver, Arrott points to the repeated renewal and eventual combination by C & H Construction of notes held by Citizens Bank, partial releases from the December 28 security agreement of accounts receivable obtained by C & H Construction and the absence of protest during the receivership proceedings in Citizens I. Arrott contends that this conduct plus a January, 1973 signing of a continuing guaranty by C. R. Davis and the failure to request a termination of the security agreement amount to an intentional relinquishment of appellants’ claims. Harvey joins in these arguments and asserts that the above conduct constitutes a waiver of any claim C & H Construction and Founders may have against him. All three appellees argue that these acts establish the absence of any genuine issue of material fact concerning the existence of a waiver by appellants of their various claims. Appellants contend that there are material questions of fact concerning this conduct and the existence of an intent to relinquish any rights. We agree.
Our Supreme Court in Cooper v. Albuquerque City Commission,
In so holding, we remind appellees that it is not proper for either the trial court or appellate court to weigh the evidence in determining whether summary judgment should be granted. Fresquez v. Southwestern Ind. Con. & Riggers, Inc.,
C. Estoppel
Citizens Bank contends that Founders is estopped from asserting any cause of action it may have against the bank. As support for this contention, the bank points to those same facts upon which it claims a waiver by Founders. Arrott and Harvey also relied upon estoppel in moving for summary judgment against C & H Construction and Founders. However, they did not argue this doctrine at the motions hearing nor do they argue it in their briefs. However, because they joined in the motion concerning equitable defenses, we assume that their argument is similar to the bank’s.
In New Mexico, estoppel “is the preclusion, by acts or conduct, from asserting a right which might otherwise have existed, to the detriment and prejudice of another, who, in reliance on such acts and conduct, has acted thereon.” Reinhart v. Rauscher Pierce Securities Corp., supra
D. Laches
In its motion against Founders, Citizens Bank also relied upon the defense of laches; Harvey also relied upon this defense in his motion against C & H Construction and Founders. At the motions hearing, Arrott joined in the defense and Harvey argued laches for these three appellees. The thrust of his argument was that the requisite elements of laches were present and that no issue of material fact existed concerning these elements. The court in Cave v. Cave,
“(1) Conduct on the part of the defendant, * * * giving rise to the situation of which complaint is made and for which the complainant seeks a remedy, * * * ;
“(2) delay in asserting the complainant’s rights, the complainant having had knowledge or notice of the defendant’s conduct and having been afforded an opportunity to institute a suit;
“(3) lack of knowledge or notice on the part of the defendant that the complainant would assert the right on which he bases his suit; and
“(4) injury or prejudice to the defendant in the event relief is accorded to the complainant or the suit is not held to be barred.”
Id. at 802-03,
E. Ratification
Both Citizens Bank and Harvey relied upon the defense of ratification in their written motions for summary judgment. At the motions hearing, it appears that, the bank argued those same facts which it used to support its claim of waiver by Founders. Harvey contended that the renewal of notes and the partial releases from the December 28 security agreement amounted to a ratification.
In Dunn v. Hite,
If the party possessing the remedial right has obtained full knowledge of all the material facts involved in the transaction, has become fully aware of its imperfection and of his own rights to impeach it, or ought, and might, with reasonable diligence, have bеcome so aware, and all undue influence is wholly removed so that he can give a perfectly free consent and he acts deliberately, and with the intention of ratifying the voidable transaction, then his confirmation is binding, and his remedial right, defensive or affirmative, is destroyed. (Emphasis added.)
Id. at 58,
F. Avoidable consequences, judicial immunity and judicial estoppel
Citizens Bank’s written motion is based partly on the doctrine of avoidable consequences. At the motions hearing, this theory was argued by the bank in passing. On appeal, Wilson, Arrott and Harvey join the bank and contend that appellants’ claims are barred by this doctrine. In its brief, the bank argues that Founder’s claim is barred because of its execution, despite its knowledge of the bank’s intention respecting the December 28 security agreement, of a continuing guaranty on January 23, 1974. Wilson, in his brief, argues that there were numerous occasions between January 1973, and February 1974, the date when a receiver was appointed in Citizens I, for appellants to have avoided the harm resulting from the bank’s actions. Based upon this doctrine, appellees contend that summary judgment was properly granted against ap- • pellants. In so contending, appellees necessarily claim that there is no genuine issue of material fact concerning appellants’ actions and this doctrine and that, because of the doctrine, appellees are entitled to judgment as a matter of law. Appellants argue that there remain material issues of fact with respect to this legal theory. We agree.
In Rutledge v. Johnson,
Under the doctrine of avoidable consequences a person injured by the tort of another is not entitled to damages for harm which he could have avoided by the use of due care after the commission of the tort. (Emphasis added.)
Id. at 220,
Under this doctrine, plaintiff cannot recover damages for injuries resulting from consequences after the accident occurred if plaintiff could reasonably have avoided these consequences. This is called the doctrine of “avoidable consequences.” (Emphasis added.)
Id. at 581,
The written motions of Citizens Bank and Harvey are based in part on the theory of judicial immunity. The bank mentioned this theory in passing at three different points during the motions hearing; Harvey failed to argue the theory. Neither of these appellees argues the theory on appeal. We rule that such a cursory treatment falls short of carrying that burden required of the bank and Harvey with respect to this theory. Therefore, we hold that the court erred in granting the motions of these appellees based on judicial immunity.
Harvey contends, in his brief, that C & H Construction and Founders are prohibited from asserting their claims against him. This contention is based upon the doctrine of judicial estoppel. For support, Harvey points to appellants’ knowledge of the alleged fraud in the procurement of the December 28 security agreement, their consent to the appointment of a receiver in Citizens I and their subsequent filing of the present suit based upon the alleged fraud and this appointment. Harvey claims this conduct is equivalent to maintaining an inconsistent position in a judicial proceeding which the doctrine was formulаted to prevent. See Citizens Bank v. C & H Const. & Paving Co., Inc., supra, for a definition of judicial estoppel. Upon examining Harvey’s contention, it is apparent that his argument is based upon the assertion that appellants consented or agreed to the appointment of a receiver in Citizens I. Appellants argue that there are material factual issues with respect to this consent. We agree.
We have already stated the record reveals that (1) C & H Construction and the bank were engaged in a series of financial transactions, (2) C & H Construction was financially dependent upon the continuing nature of these transactions and amicable relations with the bank, (3) the relationship between the bank and C. R. Davis was a close and ongoing one and (4) C. R. Davis claimed that he protested the appointment of a receiver. Because of these facts, we rule that a material factual issue exists as to whether appellants agreed to the appointment of a receiver. In addition, this Court in Citizens I concluded that thе Davises had not consented to the appointment. This conclusion was based upon an analysis of the conduct of David F. Cargo, attorney for C & H Construction and C. R. Davis. We ruled that this conduct did not establish judicial estoppel as a matter of law. Therefore, the import of our ruling was that, at the very least, there was a factual question with respect to the application of this doctrine. Harvey points to no new facts in the present case which were not present in Citizens I. Therefore, we rule that his argument is without merit. Moreover, we again remind appellees that it is improper for a trial or appellate court to weigh the evidence in deciding whether summary judgment should be granted.
In arriving at our final holding that the court erred in granting the motions of Citizens Bank, Harvey and Arrott, we are aware that the bank argues that the allegations of appellants’ second amended complaint fail to state any cause of action against it. This argument is based first on the assеrtion that Founders, as a shareholder of C & H Construction, has no capacity to sue the bank. In making this assertion, Citizens Bank misapprehends the nature of Founder’s claims. Founders is not suing as a shareholder of C & H Construction; rather it is suing as an individual entity for injuries sustained independently through the alleged fraudulent and wrongful acts of the bank. Buschmann v. Professional Men’s Association,
IV. Appellants’ motion for partial summary judgment
In their written motion, appellants moved for partial summary judgment against Citizens Bank and Harvey based upon the doctrine of res judicata and collateral estoppel. On appeal, appellants abandon their motion against Harvey. Because the court granted the bank’s motion to strike on the basis that the claims of C & H Construction against the bank were compulsory counterclaims, C & H Construction is necessarily not a party to the motion for partial summary judgment. Therefore, the motion is only between Founders and Citizens Bank. In its brief, Founders argues that the Citizens I litigation necessarily and finally determined that the bank fraudulently procured the December 28 security agreement. Accordingly, Founders concludes that the bank is collaterally estopped from denying the fraud in the present suit and that the trial court erred in denying its motion for partial summary judgment. We disagree.
The basic issue involved in Founder’s conclusions is whether it may take advantage of the Citizens I determination of fraudulent procurement. Since Founders was not a party to Citizens I, in order to do so, it must establish privity with a party to the previous litigation. Atencio v. Vigil,
Privity requires that a party against whom the conclusive effect of a judgment is invoked must be a party or a privy to the judgment; and mutuality, modified by the privity concept, requires that the party invoking the judgment must similarly be bound by it, either as a party or as a privy. . (Emphasis added.)
See City of Santa Fe v. Velarde, supra. In Citizens I, two judgments were entered which are relevant to the present issue, one on the counterclaim of C. R. and Alice Davis and one on the cross-claim of James Davis. Since C & H Construction was not a party to these judgments, and indeed did not even assert a claim in the proceedings, Founders must establish its privity with one of the Davises in order to invoke the judgments’ binding effect. The record indicates that the only assertion of privity made by any of the parties was that between Founders and C & H Construction. No attempt was made by Founders to establish its privity with any of the Davises. Privity is initially a question of fact. See 1B Moore’s Federal Practice ¶ 0.411[1] at 1253-55 (2d ed. 1974); Meeker v. Walker, supra. Not only did Founders make no attempt to establish the privity required by its motion but it also failed to show the absence of any material dispute concerning this question. Accordingly, we hold that it failed to carry its burden and that the court did not err in dеnying its motion for partial summary judgment.
In arriving at this holding, we note that on appeal Founders fails to argue that the court erred in denying its motion as to the issues of estoppel and waiver by the Davises. Because of this failure, Founders is deemed to have abandoned its attack on the trial court’s ruling concerning these issues. Wilson v. Albuquerque Board of Realtors,
Based upon the foregoing, we reverse the court’s orders granting appellees’ summary judgment motions, affirm its order denying appellants’ motion for partial summary judgment and remand.
IT IS SO ORDERED.