Clark v. Sideris

656 P.2d 872, 99 N.M. 209
CourtNew Mexico Supreme Court
DecidedDecember 20, 1982
Docket13868
StatusPublished
Cited by7 cases

This text of 656 P.2d 872 (Clark v. Sideris) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clark v. Sideris, 656 P.2d 872, 99 N.M. 209 (N.M. 1982).

Opinions

OPINION

PAYNE, Chief Justice.

This appeal involves a dispute over rights and obligations under a concession agreement between the plaintiff (Clark) and the defendant (Sideris), the Director of the State Parks and Recreation Division. The concession agreement covered facilities, including cabins, a lodge, and a marina, at the Elephant Butte Lake and Caballo Lake State parks. The trial court found that the State breached the agreement and awarded damages to Clark. Sideris appeals. We affirm in part and reverse in part.

Clark purchased concession rights and certain property from Johnston, the prior concessionaire, on October 20, 1976. Johnston had discussed the condition of the concession with a State official who told him that if an appropriation was obtained from the Legislature, the State would put in a new marina and rehabilitate the lodge. Johnston later testified that this discussion “wasn’t a commitment. We just talked about what the State Park would do if they get the money.” Johnston passed this information on to Clark, although his exact statements are unknown. Johnston’s representation was one of the bases upon which Clark relied in entering the sales agreement.

The sales agreement was subject to the State’s approval of the transfer of the concession. Clark contacted the Park and Recreation Commission himself. At least one discussion occurred with the same official to whom Johnston had spoken. Clark testified that “[t]he conversation at that time concerned the needed and planned improvements at that concession, provided money was appropriated.” Essentially, the same items were discussed at this time that were discussed with Johnston.

Subsequently, Clark and the State entered a concession or license agreement, which provided that Clark, as licensee, would maintain the premises. However, he was not to make any alterations, additions, or improvements without the State’s permission, “excepting only ordinary maintenance, repairs, and painting.” The State was also responsible for maintenance of specified items. Any obligation of the State requiring the expenditure of money was to be “subject to the availability of appropriation therefor.”

At the time Clark purchased Johnston’s interest, the premises were in poor condition. Clark claims that the state employees represented that they would seek and obtain an appropriation of $300,000 to improve the facilities. The appropriation was obtained, but only $156,000 was used to improve Clark’s facilities; the rest was used to improve other facilities at the state park.

During renovation of certain cabins by the State, furnishings provided by Clark were damaged. Clark remodeled the lodge on his own initiative when a State employee indicated there were no funds to do the remodeling. Several cabins and the marina facility were unusable, and the State failed to provide timely repairs and replacement. Clark sought and recovered damages for the furnishings, the money spent on the lodge, the lost profits from not having cabins and a marina, and interest lost on money he invested in the facilities. Sideris appeals from this judgment. Clark cross-appeals, claiming that the trial court erred in not awarding Clark $144,000 to make up for the amount of the appropriation not spent on his concession.

I.

The first point raised by Sideris is that the trial court erred in finding an implied warranty and covenant of fitness and suitability.

The trial court made the following findings:

11. That the said concession agreement contained an express warranty and covenant on the part of the Defendants and the State to repair and maintain the real and personal property and improvements let and demised to the Plaintiffs for the specific purpose and use as set forth above and in said concession agreement.
12. That the said concession agreement was entered into by the parties for a public use and purpose.
13. That there existed an implied warranty and covenant on the part of the Defendants and the State that the personal property, real property and improvements let and demised to Plaintiffs under the concession agreement would be and remain fit and suitable for the particular and specific purpose and use intended and contemplated as set forth above and in the concession agreement, at the inception of and throughout the term of the concession agreement.
14. That there further existed a warranty and covenant of quiet enjoyment and beneficial use and a warranty and covenant of habitability on the part of the Defendants and the State to Plaintiffs and certain third parties.

In T.W.I.W., Inc. v. Rhudy, 96 N.M. 354, 630 P.2d 753 (1981), this Court noted that there is no implied warranty of habitability in New Mexico, except as provided by statute. No such statute applies to this case. Also, the concession agreement contains' an integration clause specifying that there are no warranties “not set forth or incorporated by reference in this document.” Therefore, the trial court erred in finding an implied warranty and any liability on the part of the State for damages must be based only on the express warranty found by the court.

II.

Sideris also asserts that the trial court’s findings on the representation to Clark were based either on evidence under the parole evidence rule or on no evidence at all. The trial court made the following findings:

17. That the very inducement and basis for the signing of the concession agreement by the Plaintiffs were the representations, stipulations and promises by the Defendants and the State of an appropriation and expenditure of at least $300,000.00 to be made forthwith to the property let and demised to the Plaintiffs under the concession agreement for the purposes and uses thereby intended, provided that a legislative appropriation to make such expenditure possible became law.
18. That the concession agreement, itself, contains an apparent and patent ambiguity in its reference to legislative appropriations, requiring resort to parol, oral and extrinsic evidence to show the intent and agreement of the parties regarding legislative appropriations and expenditures to be made for the benefit of the Plaintiffs.
19. That without a binding commitment on the part of the Defendants and the State to expeditiously obtain an appropriation of at least $300,000.00 and to expend such monies without delay under the concession agreement, there would be no consideration for the concession agreement and no mutuality of obligation, and the concession agreement would otherwise be an illusory contract and unenforceable.
20. That the Defendants and the State sought and obtained an appropriation of $300,000.00 in order to meet their commitments to the Plaintiffs and their obligations under the concession agreement to the Plaintiffs, and thereby obtained such appropriation from the legislature for this specific purpose, and upon which request of the Defendants and the State the legislative appropriation was made in such amount for this specific object and purpose.

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656 P.2d 872, 99 N.M. 209, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-sideris-nm-1982.