Santa Fe National Bank v. Galt
607 P.2d 649
N.M. Ct. App.
1979
Check Treatment

*1 HI probation his regulations rules failed to

agreement in that he has reports to his monthly

vide and submit April,

probation officer for the months June,

May, and 1978. made following finding

court as a result of the revocation February

held on 1979: having heard the

. the court counsel, . arguments of

evidence and has vio-

hereby finds that the defendant probation terms of his

lated the lawful monthly required

that he to submit failed June of 1977

reports April, May, to be estab- and finds such violation

[sic] doubt. beyond

lished a reasonable that he did

Appellant does not contend attached to

not understand the conditions he probation deny does he did nor monthly reports. The condi-

not submit the reasonable,

tions, un- my opinion, were compliance with

ambiguous and in full Sec- 31-20-6, supra.

tion probation revocation.

I would affirm BANK, as Con

SANTA FE NATIONAL of Zachariah Ze

servator of Estate Wilson, infant,

badee Lee Plaintiff-

Appellant, GALT, Jr., M.D.,

Charles E. Catherine M.D.,

Armstrong, Regional and Carlsbad Center, Defendants-Appellees.

Medical

No. 4079. Mexico. Appeals

Court of of New

Nov.

Writ Denied Dec. of Certiorari *2 Mitchell, Mitchell, Rubin, Alley

John A. & Fe, appellant. Santa for Turner, Atwood, Malone, Bob F. Mann & Cooter, Bruin, Sanders, L. James Bruin & Baldock, Roswell, Brandt, Kenneth R. Mil- ler, Stratvert, Brandt, Torgerson & Albu- querque, appellees. Zamora, Fe,

. Matías A. E. Robert Wallach, (Bob) Francisco, Cal., Arturo San Snead, Ortega, Ortega Albuquerque, G. & for amici curiae.

OPINION WOOD, Judge. Chief February, Zachariah was born in Although the record before us does not order, undisputed contain the it is that the Court, Fe District in Probate Cause 78-92, appointed plaintiff Bank as Za- November, chariah’s day, shortly Either the same after the (the District conservatorship order read), Bank, filing stamps cannot be conservator, damages complaint filed a against the defendants which the Bank as- negligence be action for and serts to malpractice. suit was filed in Fe District Court. The trial court dismissed the suit for lack of ven- ue; appeals. the Bank The factual basis alleged is that for the venue negligence malpractice occurred in FE NAT. BANK v. GALT SANTA H3 Ill as 94 N.M. Cite “sole parents are conservator and the conservator’s Eddy County, Zachariah and of the de- Fe Eddy County; none function is to create venue in Santa residents of are residents of Santa County.” fendants assert that “creat- (1) conten- summarily answer several We ing” purposes of venue is party solely tions; on (2) the collateral attack discuss They law. improper under New Mexico (3) conservatorship; discuss Miller, 53 rely language in Teaver v. Fe District Court venue propriety of Santa (1949), which indi- *3 damage for the suit. party a residence determines cates whose The Summarily necessary party. Answered Contentions venue must be a cumulative effect constitutes a waiver issue. The actions relied on include obtain- ing [1] the continuance of a (a) The Bank contends that of defendants’ actions by them of the venue scheduled the der title to tected interest because Bank § responds person. all property that it is N.M.S.A.1978 it is a conservator of Zachariah, the real is vested party the and un- in in district rogatories and ticipating of defendants for a Bank was a the er venue. Defendant Galt’s waiver. See Rule of Civ.Proc. lish affirmative defense swer asserted in the Santa Center Defendants contend County suit Bank Heron v. Santa damage suit in the District Court [2] Santa that after the trial court dismissed allegation restated this denial and asserted protective joined with Zachariah’s (b) was a motion to dismiss for Fe District Court. The Bank’s Gaylor, N.M. in Admissions in the briefs court, filing objections sought relief on the same depositions, conservator; his amended an- Armstrong and the Medical requests in the order. that the Bank’s that venue did not portion complaint The initial Fe damage and 44, admissions, District. filing answer denied parents to file There was 12(b) 201 P.2d 366 action, the that a motion to inter- pleading of and improp- suit in Court. estab- as an Eddy Eddy basis par- (h); the the the no lie court’s marks undertaken Assur. of A.1978. 561 P.2d 468 on its indicate its ta Fe trial court made no that the were a sham was the attack on the ta Fe proper. The ship was obtained Disregarding, by the trial review. This issue does not venue if the Bank’s 98 S.Ct. County interpretation of (although not County. The trial court’s Soc. decision, The issue not Rule of conservatorship proceedings venue decision was based solely of United court, claim is that the conservator- of whether such (1977), venue at conservatorship proceedings, 121, 54 L.Ed.2d 95 see Civ.App.Proc. to solely to establish a San- a factual findings; it did it is not before and, establish venue Getz v. cert, establishing the trial involve the point, States, having conservatorship was § thus, denied, question. Equitable the collateral 90.N.M. been decided proceedings propriety 434 U.S. not find oral re- a sham. (1977)), N.M.S. us for solely were San- Life any a waiver of Eddy County constituted [4](d) contend that even by decision the Santa error as to the venue technically correct in “if venue were These facts are insuffi- District Court. Fe court County, ruling of the trial Fe the matter of law. waiver as a cient to establish applica- of the be affirmed because should the defini- Civ.App.Proc.11 and Rule of See of forum non conven- tion of the doctrine Albuquerque v. Cooper waiver in tion of this contention is suggests iens.” The Bank Commission, City Gamble, N.M. disposed Torres con- (1966). We do not court’s venue decision [3] (c) Defendants contend should be affirmed the trial the effect of § sider these arguments, 45-l-303(B) nor do we (C), consider N.M.S. non con- doctrine of forum upon A.1978 the venue in Fe propriety because veniens, in New Mex- doctrine exists if such depends action en- County for the did not dismiss Bank as the ico. The trial court tirely on the selection persons of minors and tecting property the basis County damage suit on 404(A)(2), disability. us is not before under Section The issue of the doctrine. 45-5— petition Civ.App.Proc. parents Rule of authorized for review. Zacha- a conservator for appointment of on Attack Collateral petition. Section They did so riah. Conservatorship proceedings venue for 403 states the 45-5-432, supra. The through 45-5-401 ap §§ that assert The defendants oath, states parents, under petition of the was void. pointment of the conservator venue, provided lack waive parents defendants Bank contends that 45-5-403, supra, stipulate a claim it is to venue standing make such because attack, in the a collateral Fe District Court. in the Santa separate conservatorship proceedings, parents’ is that the The defendants’ claim “standing” We do not reach action. valid waiver of the waiver was not a is, wheth question; that we do not consider 45-5-403, supra. We have provisions at er defendants could make a collateral *4 this collateral attack on no basis to review tack, sufficiency of the but consider conservatorship proceedings. In the ab- attack made. conservatorship the record of the sence of Heirs, Joplin’s Bonds v. 64 N.M. 328 whether proceedings, we cannot determine (1958) P.2d 597 followed the rule stated affirmatively noncompli- shows that record Padilla, McDonald v. 53 N.M. 202 P.2d provisions for establish- statutory ance with (1949). McDonald states: conservatorship. ing a against a collateral rule is Propriety of Santa attack, judgment a is valid unless the District Venue roll, contrary appears judgment in the statute, venue general venue Under the every step and the omission of in the proper was proceedings except entry judg- of the damage claim as conservator. the Bank’s ment, does not overcome the conclusive N.M.S.A.1978; 38-3-1(A), Chavez Section presumption regularity judgment of of a Lowe, P.2d 622 74 N.M. attacked, collaterally when if the record applicable? venue statute general Is the affirmatively does not disclose omis- sions. 45-5-403, states: Section Bonds, quiet In title there was proceedings Venue for under Sections upon prior proceeding a collateral attack to 45-5- through 5-432 5-401 [45-5-401 to sell a real estate interest of a minor. is: NMSA 1978] The attack was successful because the rec- Mex- judicial in New A. in the district proceedings affirmatively ord of the sale re- person protected where the to be ico noncompliance statutory pro- showed guardian has been sides whether or not a selling cedures for the minor’s real estate. judicial appointed in district another case, In this we do not know whether the conservatorship proceedings record of the general specific Conflicts between affirmatively noncompliance with discloses to the by giving statutes are effect resolved statutory provisions appointment of a Apo specific ex rel. Bird v. statute. State The record before us does not conservator. daca, (1977); New 91 N.M. conservatorship pro- include the file of the Co., Mexico Bureau of Rev. v. Western Elec. only portion ceedings. of the conserva- N.M. 468, torship proceedings copy before us is a 45-5-403, supra, specific is a ven- Section petition seeking appointment of a con- ue statute. Does it conflict with servator. 1(A), supra? 45-5-432, through 45-5-401 Sections case, (a portion In a conflict question of the Probate N.M.S.A.1978 Code) conservatorship conservatorship pro- pertain to does not involve the

H5 estate, collateral attack ceedings; may defendants’ be conducted in another Bank, appointment litigation as conserva- court if of the kind involved tor, was insufficient. The of a could have been conducted there in the absence conservatorship proceedings. conflict involves the venue of the 45-5-403, by the Bank. action filed Does § Apart from the conservatorship, the Bank is supra, apply to the action? also the trustee express of an trust for the trustee, benefit of Zachariah. As it was the 45-5-403, terms, supra, by ap- Section its proper party bring the damage suit and plies “proceedings” 45-5—401 §§ venue in the county of the trustee’s resi 45-5-432, through supra. Those sections 17; dence proper. Rule of Civ.Proc. conservatorship deal with matters. Section 38-3-1(A), supra; Lowe, Chavez v. supra. 45-5^424(C) states: conservator, acting reasonably Statutory provisions A in ef- concerning guardians accomplish purpose guardians forts to for which of minors and of inca pacitated persons have appointed, may provi he was act without court two venue conformation, provision pertains sions. ap One to the authorization or to: state.” 403, supra. Defendants’ contention is too 5-424(C)(24), supra, problems exist as to the suits venue of suits out-of-state defendants. broad. Section ply Practice Manual at 539 cute and § 45-5— ing” ue of the § District Court 45-5-424(C)(24), supra, duties Defendants contend that protection of estate assets and of states (24) prosecute or defend proceedings brought [*] instituted Wellman, 403, supra, controls the venue of 2 proceeding defend * * Wellman, that [*] under the damage in the by 45-5-424(C)(24), supra, a conservator *. litigation under supra, at [*] the conservator any jurisdiction is Uniform Probate Code governed by suit was a performance authority the (2d [*] and thus 502-503, actions, the ed. or authority “may prose- [*] out of the 1977). “proceed- the § against for the of his claims § [*] indi ven- sim- ment, shows an intent not to restrict 45- If Wellman, class of cases.” Defendants quirements lawsuits cerning the conservator eral venue statute controls the “would abolish The absence of a second venue statute con ceedings involving conservators. We disa 403, supra, venue of lawsuits conservators, gree. 403, supra. 205 and proceedings subsequent *5 provision for conservators. Section 45-5- ferences, defendants contend that pointment Sections second The However, provision pertains 45-5-211 and Defendants assert filed supra at absence of was intended to cover all Because of these subsequent by the any restrictions on or proper guardian. involving there is 529, quoted a venue N.M.S.A.1978. The to the venue is consistent with conservator, to the venue of to only the conservator.. that if the Sections 45-5- point out that statutory the appointment. provision above. in a one venue venue of N.M.S.A. appoint § major 45-5- gen pro dif the re cates that the venue restrictions of 45-5- § selecting a by venue would be determined 403, supra, apply proceedings involving to residing county the where the the institution and conduct of conserva this is agree, venue was desired. We but torship. Wellman also indicates that once argument not an in this case that venue conservator, there venue for lawsuits is statutory provi was improper under by the conservator are not limit instituted by Legisla sions. Venue is determined 45-5-403, Wellman, supra, by supra. ed 420, § Owens, ture. Estate 553 at 529 states: Chavez, (1976); P.2d 700 Peisker v. 46 N.M. 159,

Litigation brought by against (1942). Legislature third 123 P.2d 726 adversely persons property general who claim to has enacted a venue statute. Sec 38-3-1, protected person, supra. Legislature provid who are indebted to tion him, against prin- or who have claims him or ed in “The N.M.S.A.1978: § Co., Ortega v. Transamerica Ins. 91 N.M. equity supplement

ciples of law * * * 31, (Ct.App.1977) held that a provisions, unless Probate Code’s by provi- prejudice without was not a final displaced particular dismissal specifically damage I dissented appealable.' As to the and was not sions of the code.” order defendants, by relied on circumstances of the supra, peculiar § general displacement of the Act to avoid the specific Compensation is not a Workmen’s 403, statute; rather, supra, Neverthe- running period. of the limitation 45-5— in- concerning the proposition limits venue in matters Ortega stands for the less guardianship. stitution and conduct of case is not filed in the instant Order appealable. not final order and therefore is conflict between § There no 45-5— 38-3-l(A), supra, in connection supra, and duty to determine This has a damage suit. Section with the appeal; it jurisdiction it has whether 45-5— the venue of the supra, does not control required, will the record and if will examine suit filed the conservator. Sec jurisdiction. Rice v. sponte question its sua 38-3-l(A), applicable tion (1968). Gonzales, 79 N.M. promotes this result venue statute. If can be no exercise of discretion. There shopping a forum considered favorable Johnson, 567, 396 P.2d Johnson v. 74 N.M. contend, plaintiff, as defendants the mat to Legislature to resolve. Min ter is for the remanded to the dis- This case should be McClure, 694, 133 P. 1063 ing 17 N.M. Co. entry to allow the of an interloc- trict court (1913), L.R.A.(N.S.) 744 utory pursuant to N.M.S.A. order § 39-3— dismissing order The trial court’s purpose interlocutory 1978. The or- suit for intricate, complex problems der is to solve lack of venue is erroneous and is reversed. like that instant I that arise case. The cause is remanded instructions so, plaintiff believe refused do inadvert- the case on the docket of the reinstate ently. plaintiff If this case is not remanded Fe District Court. may opportunity its to seek the relief lose claimed in the District Court of Santa Fe IT IS SO ORDERED. *6 WALTERS, J., concurs.

SUTIN, J., dissents.

SUTIN, Judge (dissenting).

I dissent. Defendants moved this Court to dismiss appeal grounds this on the the Court RAVEN, Plaintiff-Appellant, Didier jurisdiction lacks because the Order filed captioned this case dismissed “the matter” Stanley Resources, MARSH Financial prejudice. without Inc., Corporation, a New Mexico West The court found “that the motions and Mesa, Inc., Corporation, Mexico New are well asserting improper defenses City Albuquerque, and the New Mexi- granted.” taken and should be co, Defendants-Appellees. and the A was held on motion No. 4096. preserved motion was denied. me, To this matter in their Answer Brief. Appeals of New Mexico. jurisdictional primary impor- is of issue Jan. formally tance be and should reviewed. discussion is: captioned Is a matter dismissal prejudice

without a final order?