Jemez Properties, Inc. v. Lucero
608 P.2d 157
N.M. Ct. App.
1979
Check Treatment

*1 Support if the children are be- Child They stop can the visitation abused. rights. HSD, knowledge

Given the hypocritical

seems at best

deny Ms. Garcia AFDC benefits on the

grounds that Mr. Romero’s abusive conduct

provided type guidance contemplated regulation. un- action of HSD unreasonable,

der these circumstances is ir-

rational and It appears unconsidered.

they ignored any contrary evidence or unfa- original

vorable to the determination of in-

eligibility. hearing The fair was not a process,

“winnowing sifting” but in- justification.

stead an overt at attempt action Ms. denying HSD capricious

Garcia was arbitrary and and not

supported by substantial evidence consider- such,

ing the record a whole. As

decision is reversed and remanded to HSD

for action opinion. not inconsistent

IT IS SO ORDERED. ANDREWS, JJ.,

WALTERS concur. INC., PROPERTIES,

JEMEZ K. Robert Rosemary Walsh, Walsh and

Plaintiffs-Appellees,

Tony Josephine Lucero, LUCERO and his wife, Defendants-Appellants. AIRY,

Frederic W. AIRY and Helen L. wife, Plaintiffs,

his

Antonio Josephine LUCERO and Lucero, wife, his Defendants.

No. 3515.

Court of Appeals of New Mexico.

Dec. 1979. Denied

Writ of Certiorari

Jan. 1980.

183 *2 case, property. This Cause No. August 25, 1975, settled and dismissing order was entered the com-

plaint quieting the Luceros. In case, a companion No. Cause Frederic W. and Airy brought Helen suit *3 seeking Luceros an easement across the same tract of This case land. was tried before the court relief was denied. September the Airys moved trial, introducing for a new affidavits show- ing that the deeds which the under Luceros forged by claimed title had been altera- tion of the of the description eastern bound- ary of the property. According Lucero affidavits, Tony purchased Lucero had sixteen V. acres from Minnie Ralston in 1951,which as being was described “bound- Rael, Gallagher, Peter G. Gallagher Pedro river”, ed on the east the Jemez but at Walker, Albuquerque, defendants-ap- & the time of the trial in Causes No. 6260 and pellants. County the Sandoval Clerk’s records had been that Norton, Richard E. altered to both the deed Albuquerque, show to the Luceros and deed to from plaintiffs-appellees. Ralston father, Thurlo, her Mike had an eastern Lewis O. Campbell, Albuquerque, for boundary public “the road at described as plaintiffs Airy. Canyon.” Airys submitted affidavits Ralston, Thurlo, company from and a title OPINION forgery. demonstrating the The court ANDREWS, Judge. trial, granted Airys a new leave to questions Three presented ap- alleging the complaint amend the fraud (1) peal: forgery whether the of a deed and the Luceros. the falsification public records concern- immediately moved to set Walshes ing a parcel of “exceptional land are cir- in Cause No. 6260 aside the final order justify cumstances” which the reopening of 60(b), claiming the existence of under Rule quiet in a title action under resulting from extraordinary circumstances N.M.R.Civ.P., 60(b)(6), N.M.S.A.1978; Rule alleged forgery of the deed. fraud and (2) whether a showing that the deed under deny forgery, The Luceros but did not ejectment which the defendant in an action instead tried to establish claims title subject property forged suit as a bar. The quiet the earlier is, itself, support sufficient to the sum- summary judgment Walshes moved for mary granting ejectment; (3) of the Walsh, of Robert deposition upon based whether attorneys’ may fees Luceros, The court and the affidavits. forged one who has a deed so as to superior had title to that the Walshes ruled require the party other to incur such fees in $3,000.00 them the land and awarded an action for where no slander of appeal from that damages. The Luceros was specifically pled. vacating origi- judgment and the order brought The initial action was in Sando- judgment. nal 1975 County Proper- val District Jemez Court ties, Inc., however, Initially, K. we note that the through Rosemary Robert Walsh, quiet appeal of this proprietors, appellees its title to and seek dismissal eject Tony Lucero the order Josephine untimely, arguing from the appealable

the Rule motion was an 60(b)(6) provides a reservoir of equitable power justice given final to do Relying City order. Hoover v. case, but it is limited to instances where Albuquerque, 56 N.M. 245 P.2d 1038 there is a of exceptional circum (1952), appellees assert that the order set- Perez, stances. Perez v. ting aside the earlier was itself a (1966); Battersby v. Bell Aircraft hence, judgment; final that an Corporation, 65 N.M. 332 P.2d 1028 taken, all, from that decision must be if at thirty days entry within of the order certainly This is a case where we pursuant 3(a)(3), N.M.R.Civ.App., say “exceptional cannot circumstances” point N.M.S.A.1978. This is not well taken. present, the trial court did In Albuquerque Prod. Credit Ass’n v. not act properly and within its sound discre Martinez, (1978), allowing tion in the modification of the setting was held that an order aside an Perez, judgment. final Perez supra. earlier under Rule was in- While the Luceros were guilty ordinary *4 thus, terlocutory nonappealable; and over- they misrepresented fraud insomuch as ruling Hoover implication. Since this their interest in the properties to immediately decision was not appealable, it the Walshes and the Airys, their actions beyond went may the common fraud be reviewed in contem appeal, which is plated 60(b)(3); by Rule the Luceros tam properly taken from the judgment entered pered physical with the evidence of the case reopened the case. in forgoing the deed which presented was and under which year elapsed between the entry of the chal- aside.1 year after reasons of ing [or] lenged “the motion shall be made ment.” The rule for 60(b)(3) allows relief from a Rule Parks v. more cause the Rule statement of its seek reversal of the trial court and rein relief from the order thus, “fraud” or 60(b)(6) than one order and the Rule In the instant In Parks, * * * (3) the order was entered. Rule their for untimely the 60(b)(6) fraud or misrepresentation, [1] August “any “misrepresentation”, further year first point, operation was entered or taken.” motion to vacate the other reason justify is the only provision after filed more than one case, provides final the more than a * * * 574 P.2d 588 may may be set of the judg the Luceros order be that for motion; and Grace, tional circumstances exist here. The trial court did al circumstances. We think reasons other for the reopening 60(b)(1), (2) and court used to circumvent F.2d 1368 which tectable way as to make their other misdeeds unde 1963); lips v. Crown Central to the court records in the county clerk’s office in such a Pitchess, F.2d 702 We (3) the be used are aware of Parks v. held that Rule and Aro Mfg. (4th motion under Rule 518 F.2d 141 not abuse its discretion in (6th only upon showing Corp. and and commonly rely. the method to than those set out in Cir. Co., Cir. reopen they tampered (3), 1977); Bros, of v. Allied Witan 320 F.2d 594 1976). the time limit set out judgments so that Rule Petroleum (9th 60(b)(6) may judgments only upon Cir. Parks, 60(b), of See Davis v. those Inc. v. W. E. 1974); with under Rule which the exception- Corp., (b)(1), (5th Co., 60(b)(6) not be excep- grant- supra. supra, public Phil Cir. (2) 60(b) expressly 1. judicial system per- reserves to the court the court so that the cannot power judgments common law bribery to set example, aside form in a usual manner: independent equitable judges, employment action. The Walshes to “influ- of counsel contend court, that such an bribery jury, action would lie on the ence” the the or theory upon However, of “fraud attorney perpetration the court.” involvement of an in the upon only Bowles, fraud spe- the court embraces of the fraud. See Lockwood v. attempts, successfully cies (1969); of fraud which F.R.D. 625 7 Moore’s Federal Practice unsuccessfully, to defile the court itself or 60.33 at The facts of this case do not 512-13. II perpetrated which upon fraud is officers of the establish fraud court. the Next, proof In their offer argue summary the Luceros that the court for the Walsh, summary judgment judgment, plaintiffs, Mr. one of the erred in exceptions grant said there were within the did since the not meet they asking per- were determined establishing they, their rath- burden of living sons about exceptions area the defendants, pos- er than the are entitled to through survey deeds de- 42-4-7, property. session Section scription exceptions. Mr. Walsh also Brock, Under Goodman N.M.S.A.1978. Jaramillo, spoke person to Jesus a local with (1972), summary area, knowledge regarding some judgment must denied if a be there exists However, Lucero, grant lands. Mr. one of to reasonable doubt as whether there is defendants, said that Jesus Jaramillo genuine yet issue fact of material and others indicated that eastern determined. Defendants contend that disputed boundary of the land was to the there is substantial evidence in the record stop road and did not at the river. Mr. true the effect that owners states Mr. Lucero deed from Ral- agree. we property actually ston should have shown eastern Brock, applying supra, In the Goodman v. boundary to road that “every- be the situation, present guided test we are up the body boundary knows the road.” by the recent decision of the New Mexico “I Mr. know we didn’t know Walsh stated: Supreme Mascarenas, Court in Fischer v. 93 where boundaries were.” (1979), which dealt judgment, being Summary an ex with very pattern. similar fact In that employed great remedy treme to be *5 case, enjoin Fischer sued Mascarenas to the caution, for a trial cannot be substituted interfering property latter from with real as of long the merits as one issue material claimed Fischer. Mascarenas claimed to remedy in the present fact is still case. Fischer, own the but in property; support there employed should not be where is the of summary judgment, his motion for to the existence of an slightest doubt as presented uncontradicted evidence to show where issue of material fact. Even the upon that the deeds which Mascarenas undisputed, equally logical are if basic facts property based his to the were claim insuf- conflicting but inferences can drawn ficient either they because described the facts, summary judgment from should wrong clearly property or inferior to Mascarenas, supra. v. be denied. Fischer Supreme deed. Fischer’s Court refused own the plaintiffs Whether in fact uphold summary first, for dispute in two reasons: land is below: of law no as a matter that there is Fischer, best, at The evidence of its exception is of an to the the land outside legal he proves only that has title. It second, conflicting grant; there and is the an that equi- does not rule out inference testimony boundary as to whether the east Mascarenas, table is in does not to the Although is to the “road” or “river”. preclude an inference of mistaken de- many disputed, equally are not of facts persons in deed to in the scription conflicting logical but inferences can be of title from the com- Mascarenas chain drawn, making summary judgment imper parties. in title of the predecessor mon Mascarenas, v. supra; missible. Fischer Id. at 1161. Laboratories, Goffe, v. Pharmaseal Inc. 90 (1977). 589 N.M. 568 P.2d Plaintiffs Fischer, case, plaintiffs In this have as in carry burden on their failed to their motion upon that which shown the deed defend- summary judgment. for defective, fatally is is ants’ title asserted summary support but alone a attorneys this will fees The court awarded determination of the cause where there are judgment. Defendants assert because to the deed which or rule of court exists permitting indications external no statute attorneys fees might support position. recovery defendants’ of in 186 is, therefore, remanded with instruc-

action, Aboud no fees recoverable. See attorneys’ tions that fees be award of Adams, (1973). 430 507 P.2d v. reversed. However, predica- their plaintiffs compare a aggrieved of a in party ment to that Finally, the argue Walshes that the of where the award slander of cause failing compensato court erred in award expenses litigation is also established of ry damages, doing placed in so legitimate damages.2 element of a See in this in “miscreant and similar instances a (1955); v. A.L.R.2d Olsen Annot. 39 840 position succeeded, they zero loss where had (1951). Kidman, 120 Utah 235 by nearly would have been enriched maliciously publishes One who $50,000.00.” case, In this the trial court question or brings false matter which only “plaintiffs found incurred a liabil thereby property, disparages title to ($3,000.00) of Three ity Thousand Dollars owner, may causing special damages attorneys’ fees in this action.” As damages liable in civil action for be held above, improper shown was an awarded of title. v. Public for slander See Garver damages. Mexico, Company of New N.M. Service However, compensatory prove an ac In order 421 P.2d data, predicated must afford damages, for slander of title is not the evidence tion written, spoken facts, from which merely upon the words and circumstances recovery with reasona gist but the action can be determined actual loss damages loss sustained must show special certainty for the and the ble speaking publication reason of the dam evidence the preponderance concerning title to plaintiffs’ slander injury complained of. ages caused Am.Jur.2d, Slander, property. Mitchell, Libel 186 P.2d v. Stevens Company 552. Garver Public Service Voyer, § N.M. (1947); Christman Mexico, supra; Mays, of New Branch v. 89 772, (Ct.App.1979). (1976). Special therefore, conclude, the trial We damages pleaded proved must be as well as reopen- within its discretion court acted in a suit slander of title. Garver v. under the earlier Mexico, Company Public of New Service sum- *6 60(b)(6), but that erred Here, supra. complaint the failed amended and case in reopened in mary judgment the and, impor to claim slander of more title no cause attorneys’ where awarding fees tant, allegations damages the in the of properly was of title sounding in slander complaint amended meet the re failed to therefore, We, reverse and proved. pled or quirement special that damages must be on the mer- hearing this case for a remand stated. specifically Garver v. Public Ser its. Mexico, Company supra. vice of New ORDERED. IT IS SO brought Where the action is not for slander title, plaintiffs rely of cannot remedies J., WALTERS, concurs. peculiar action, to that whether it be in the damages matter of attorneys or fees. In J., SUTIN, dissenting. Mexico, New statutory authority or absent SUTIN, Judge (dissenting). court, rule of attorneys fees are not recov 31,1975, Properties, Inc. erable as an item Jemez damages. Aboud On March of v. against the complaint in filed a Adams, present supra. This case does not 14, 1975, the Luceros April Luceros. On v. (see Gregg rule exception of as owners and counterclaimed answered (1963)) Gardner, 347, P.2d 68 N.M. 388 73 Co., attorneys’ argue should be Sterling fees act. Larson v. Ins. 153 Plaintiffs Mut. Life 2. compensatory 1941); or (Tex.Civ.App. of 177 award S.W.2d 25 C.J.S. considered damages Damages (1966). a clear exemplary there is where New law is to § Mexico willfully Adams, contrary, supra. fraudulent the Aboud of malicious or quiet the sought Properties argue land and Jemez thereto. that the Luceros’ Properties On June Jemez moved to contention cannot be raised the because complaint substituting amend its the Luceros did not the March in place Walshes as of Jemez that set aside Order the Luceros’ Properties, and leave was to file a August of 1975.

first complaint. amended None was then correct, Both arguments are but Jemez Subsequently, filed. the Walshes alone did Properties’ argument controls. file an complaint amended as owners of the of the Rules of Civil Procedure property. allows motion to be made not more than 25, 1975, August the Luceros moved year one after when judg- the preju- dismissal the above action with fraud, procured ment was misrepresen- dice, motion, grounds and as said Parks, tation other misconduct. Parks v. show parties the court “that have set- 369, 574 (1978). Jemez tled their differences.” On day, the same Properties’ filing motion was late in an Order was entered unless some other avenue relief can be * * * be, that the above-entitled cause found, August 25, Order is, and it hereby with prejudice, dismissed favor of Luceros cannot be set aside. defendants, title of rely Jemez Properties cannot on Rule claimed their regarding counterclaim 60(b)(4) is The void.” —“the property, subject which is matter jurisdiction parties, court had of the suit, be, of this law hereby and it power authority matter quieted and against plain- set at rest as * * Heckathorn, to act. Heckathorn tiff *. (1967). City See Nesbit v. only plaintiff whose action was dis- Albuquerque, prejudice missed with whom quieted was Properties, Jemez Inc. Jemez Properties rely cannot on Rule It did not include the Walshes. the final filed a motion “To set aside as null and void later, claim title had in fact been falsified. Mexico Rules of Civil Procedure 1975, pursuant On November On March by set aside and declared void. 6260 the motion because 1. That the Walshes were without [*] Jemez August [the deed order of the court on 1975 [*] Properties 25, under to Rule Lucero Final 1975 Order. [*] an Order was entered: which the defendants Order in Judgment] some 14V2months [*] and the Walshes authority of the New [*] August Cause No. * * is here- parties * *" [*] join * from the provision cannot be used to judgment. 60(b)(6) “any one-year equitable power for relief fraud. not circumvent period for of these 65 *7 expired. cumstances where v. Perez, N.M. Battersby 60(b)(6) — Parks, supra. 114, operation time from 75 N.M. cases The filing a motion for relief from a does 332 other reason majority opinion v. judgments period involve the limited to P.2d 1028 Bell Aircraft not 656, one-year provide allowed for motions limitation Inasmuch as it can- 409 P.2d 804 judgment.” on the justifying exceptional circumvent one-year time time Corporation, reservoir of cites Perez period ground Neither period, (1966) relief This cir- has 4. That Plaintiffs Cause No. 6260 stage proceedings, At this Jemez 15, leave until March 1977 to Properties no basis under Rule to had file amended complaints. judgment. How- vacate the Luceros’ 1975 op ever, quiet The appeal any Luceros now claim not out judgment that the this did had, in setting any, court erred if prior judg- aside'their that the Walshes to interest 25,1975 August ment of court becáuse the motion this case. trial land involved to judgment declaring Judg- vacate the untimely. was the Luceros’ 1975 erred in

188 The order does affect a substantial of fraud. But this by reason void ment final right and in that sense is a order. not erase itself from ruling did erroneous order, plaintiff But for such record. have been entitled in law to the immedi- 1, the March appeal not The Luceros did judgments. right his this ate fruits of Of 25, August aside their that set 1977 Order deprived [Emphasis him. add- order If the judgment. title Order quiet 1975 206, 292 P. ed.] 7.] [Id. final, 1, 1977 was and the on March entered in Kerr v. rule was followed South- This it was as final appealed, was not final order Co., al., 232, 35 N.M. 294 P. west Flourite et judgment The final judgment. as a final 209, (1930); Brady, v. 45 N.M. 324 Gutierrez the Luceros did not would be that entered (1941) 113 P.2d 585 where the motion to property to the legal have valid denied; v. vacate was Davis Meadors-Cher- involved, Properties then had Jemez 285, N.M. ry Company, 63 ejectment. The right proceed to (1957) “reopening judg- an order where procedural be restored case would vacating judgment”; ment is not an order 1977, 1, the time it was in on March position 142, Starnes, 72 381 P.2d Starnes N.M. judgment was set aside. Luceros’ 1975 Franklin, (1963); Gallegos v. 89 N.M. 1, 423 words, if the March Order In other 118, (Ct.App.1976). P.2d 1160 order, Properties, absent was a final Jemez ' 60(b), this would obtain relief under rule, Luceros’ substantial Under appeal. for failure of the Luceros to relief rights quiet affected because their was on their coun- judgment entered question for decision is: parties their dif- terclaim after the settled Was the 1977 Order that set March judgment This was taken from ferences. judg- August aside the Luceros’ setting them. But for the order entered appealable ment a final and Order? would have judgment, aside the Luceros Mexico, In answer is found New right good had the and valid title to the 3(a)(3) of the Rules application of Rule Properties property against Jemez appeal An Appellate Procedure. Civil ejectment. Of this could from: allowed right, deprived the order him. “any entry judg- final order after rely Albuquerque on Prod. The Luceros’ rights.” ment which affects substantial Martinez, Credit Ass’n v. City Albuquerque, Hoover v. (1978). Judge Andrews states that (1952) 245 P.2d that an order holds by implication under was overruled Hoover judgment entered after final wherein sub- did disagree. I APCA opinion. the APCA rights stantial are affected under 3(a)(3) which nor mention Rule not discuss motion, 3(a)(3), response to a Rule “any order af- appeal from final allows an appealable is a final order. which affects sub- entry ter phrase What is meant “which af- by the rights.” stantial fects rights?” substantial APCA, filed a as a defendant In APCA Sanabrea, Singleton In Martinez, but against cross-claim defendant (1930), P. 6 a default on Martinez. not served was void because against defendant. plaintiff entered for entry February default, vacating plain- From an order cross-claim was made APCA’s appealed. tiff moved to dismiss Defendant later, Martinez’ heirs years Martinez. Four the order ground on the the APCA aside moved set not an judgment was *8 setting aside a default December, 1972, under Rule motion was denied. appealable order. The it was was set aside because The court said: applies where a void limit void. No time appeal. did not to the APCA appeals relate is entered. authorizing

Laws and Martinez’ liberally was final The order entered be construed remedy, and should position former remedy. heirs were restored furtherance of Martinez —a filed ment cross-claim APCA was entered on the merits after “hav- against Martinez. witnesses, the testimony heard con- admitted, sidered the exhibits arguments of 21, September 1973, On APCA filed a * * * counsel and the having Court requesting permission motion to file an Findings made its of Fact and 10, Conclusions amended cross-claim and on January of Law.” granted. the motion was appeal, discussing On effect of the The appeal judg- was taken from this order that vacated the void judgment, ment. challenged The Luceros Finding No. quoted the court from 7 Moore’s Federal plaintiffs owned the land in the Practice, ¶ page (2d at Ed. 60.30[3] Grant; Diego Canon de Findings San Nos. 1975). pertinent part quotation 5, 6, 11-14, amounting to a misrepre- 20— is: sentation defendants and a knowing the order relief merely [W]here wrongful occupation of the in ques- lands vacates and leaves the case tion defendants. Luceros also chal- determination, pending for further lenged Conclusions of Law Nos. 3 and * * * order interlocutory is and non- superior had title to the appealable. [Emphasis added.] [Id. question lands in and that defendants had 573 P.2d 674.] no color title thereto. quotation This judg- means that when a There was support sufficient evidence to vacated, ment parties and the take no the findings only of the trial court. The action by appeal otherwise, thereon question involved in this is whether simply leaves pending the case for further in awarding trial court erred the Walsh- determination, non-appealable order is $3,000.00 in attorney es fees. Supreme and the juris- Court does not have diction to hear the appeal. United See Adams, 683, 691, Aboud v. Agne, (3d 1947), States v. 161 F.2d 331 Cir. (1973) quoted the following the case from which the rule was taken. approval: APCA does not proposition stand for the “In the absence of a statute or rule of that an vacating order is not a court it cannot be said that attorney fees final appealable order that does not affect are such items properly as are taxed as rights the substantial of a party. The fed- costs, or may be considered as items re- appealable eral courts do not have an provi- damages.” coverable as 3(a)(3). sion like Rule Walshes were entitled to attor- 1, 1977, On March this case stood with ney fees. Jemez Properties’ complaint and Luceros’ answer, interrogatories propounded and an- The judgment below should be affirmed swers Properties’ right and Jemez to file an $3,000.00 to the withdrawal of complaint. amended On March 1977 an attorney fees. complaint amended was filed the Walsh- 13, 1977, es April and on the Luceros an- 4, 1979,

swered. On November the Walshes

filed a summary judgment. motion for 8, 1977,

November Walshes request filed a

for admission of facts which was not an-

swered. On November an extend-

ed hearing was held on Walshes’ motion for

summary judgment. Although the court

stated that grant summary, it would sum-

mary judgment Findings was not entered.

of fact and conclusions of law were filed

and the court Judg- rendered its decision.