Dominguez v. Northern Mountain

• Court: New Mexico Court of Appeals
• Decided: October 13, 2011
• Docket: 29,851
• Status: Unpublished

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 3 also note that this electronic memorandum opinion may contain computer-generated errors or other 4 deviations from the official paper version filed by the Court of Appeals and does not include the 5 filing date.

6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 PAUL DOMINGUEZ,

8 Plaintiff-Appellant,

9 v. NO. 29,851

10 NORTHERN MOUNTAIN CONSTRUCTORS, INC. 11 d/b/a NORTHERN MOUNTAIN CONTRACTORS, 12 and NORTHERN MOUNTAIN CONSTRUCTION,

13 Defendant-Appellee.

14 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY 15 John M. Paternoster, District Judge

16 Edmund R. Pitts 17 Taos, NM

18 for Appellant

19 Yenson, Lynn, Allen & Wosick, P.C. 20 Phillis S. Lynn 21 Michael S. Jahner 22 April D. White 23 Albuquerque, NM

24 for Appellee

25 MEMORANDUM OPINION 1 VANZI, Judge.

2 Plaintiff Paul Dominguez appeals the district court’s decision granting

3 Defendant Northern Mountain Constructors, Inc.’s (Northern Mountain) Rule 1-050

4 NMRA motion for directed verdict. Plaintiff raises two issues. First, he argues that

5 the district court erred in ruling that there was insufficient evidence to show that

6 Northern Mountain had a legal duty to Plaintiff. Second, he contends that sufficient

7 evidence was presented at trial for the jury to decide whether Northern Mountain and

8 Perovich Properties, Inc. (Perovich Properties) d/b/a Taos Gravel Products (Taos

9 Gravel) acted as a joint venture or as partners. Because we conclude that the district

10 court did not err in granting Northern Mountain’s Rule 1-050 motion, we affirm.

11 The factual and procedural background is familiar to the parties. Because this

12 is a memorandum opinion, we provide details as necessary to our discussion of the

13 issues raised by Plaintiff.

14 DISCUSSION

15 Standard of Review

16 “A directed verdict is appropriate only when there are no true issues of fact to

17 be presented to a jury.” Sunwest Bank v. Garrett, 113 N.M. 112, 115, 823 P.2d 912,

18 915 (1992). In reviewing the evidence on appeal from a judgment entered pursuant

19 to a directed verdict, we consider all evidence and view any conflicts in the evidence

2 1 in favor of the party resisting the directed verdict. Id. “Directed verdicts are not

2 favored and should only be granted when the jury cannot reasonably and logically

3 reach any other conclusion.” W. States Mech. Contractors, Inc. v. Sandia Corp., 110

4 N.M. 676, 679, 798 P.2d 1062, 1065 (Ct. App. 1990). However, “[i]t is fundamental

5 that the evidence adduced must support all issues of fact essential to the maintenance

6 of a legally recognized and enforceable claim.” C.E. Alexander & Sons, Inc. v. DEC

7 Int’l, Inc., 112 N.M. 89, 93, 811 P.2d 899, 903 (1991) (internal quotation marks and

8 citation omitted). Thus, if the evidence fails to support an issue essential to the legal

9 sufficiency of the asserted claim, there is no right to a jury trial. Id. Whether there

10 exists sufficient evidence to support a claim or defense is a question of law for the

11 district court that the appellate court reviews de novo. See Sunwest Bank, 113 N.M.

12 at 115, 823 P.2d at 915.

13 On appeal, Plaintiff raises two issues. First, he argues that Northern Mountain

14 should be held liable for his injuries because Northern Mountain’s status as the lessee

15 of the screener imposed on it a legal duty. Second, he claims that Northern Mountain

16 should be held liable because it was involved in a joint venture or partnership with

17 Taos Gravel. We take each argument in turn.

18 Northern Mountain Did Not Owe a Legal Duty to Plaintiff

3 1 No one disputes that Paul Dominguez was a good employee who was just doing

2 his job when he got seriously injured while working at a gravel processing plant in

3 April 1999. The question in this case, however, is whether Northern Mountain—the

4 sole remaining Defendant—exercised sufficient control over the screener that injured

5 Dominguez to impose on Northern Mountain a duty of care to Defendant.

6 As a threshold matter, the parties agree that a negligence claim requires that

7 “there be a duty owed from the defendant to the plaintiff.” Romero v. Giant

8 Stop-N-Go of N.M., Inc., 2009-NMCA-059, ¶ 5, 146 N.M. 520, 212 P.3d 408.

9 “Whether a duty exists is a question of law for the courts to decide.” Herrera v.

10 Quality Pontiac, 2003-NMSC-018, ¶ 6, 134 N.M. 43, 73 P.3d 181 (internal quotation

11 marks and citation omitted). Further, the parties generally agree that the question we

12 must ask is “whether [a] defendant has the ability to exercise control over a premise

13 or an activity such that it is reasonable to impose a duty of ordinary care on it as to the

14 management of the premises or activities.” Smith ex rel. Smith v. Bryco Arms, 2001-

15 NMCA-090, ¶ 25, 131 N.M. 87, 33 P.3d 638; see also Ortiz v. Gas Co. of N.M., 97

16 N.M. 81, 83, 636 P.2d 900, 902 (Ct. App. 1981) (concluding that “the gas company

17 ha[d] no duty to warn or inspect gas appliances which it did not own, install, or

18 control[.]”)

4 1 Plaintiff here contends there was “an abundance of evidence introduced by

2 Plaintiff showing Northern Mountain had control over the [screener]” and that,

3 therefore, Defendant had a duty of care to him. Specifically, Plaintiff contends the

4 following evidence required that the issue of control and responsibility should have

5 been decided by the jury: (1) the equipment lease with Western Wire Works, Inc.

6 d/b/a Aggregate and Mining Supply (Western Wire); (2) the testimony of safety expert

7 Vince Gallagher; and (3) the shipping documents for the equipment. For the reasons

8 that follow, we disagree. We begin with a review of the evidence introduced at trial

9 concerning the relationship between Northern Mountain and Perovich Properties and

10 then turn to the specific evidence concerning ownership of the screener at issue in this

11 case. Against this backdrop, we address Plaintiff’s argument.

12 The undisputed testimony at trial established that Northern Mountain and

13 Perovich Properties are two separate companies with different names and different

14 officers. The two companies have been in business for different lengths of time and

15 are completely different types of businesses. Northern Mountain is a highway and

16 heavy equipment contractor. It owns backhoes, road graders, trucks, belly dumps,

17 loaders, pavers, extractors, and service trucks. Further, Northern Mountain employs

18 its own mechanics to maintain and repair its equipment. In order to conduct its

19 business, Northern Mountain buys aggregate from Taos Gravel and other suppliers.

5 1 When it purchases material from Taos Gravel, Northern Mountain is invoiced the

2 same as all other contractors that purchase aggregate from Taos Gravel. The president

3 and senior manager of Northern Mountain is Patricia Perovich. The only other office

4 holder for Northern Mountain is Helen Perovich.

5 Perovich Properties, on the other hand, is a business that manufactures gravel

6 products to be used in making asphalt. In addition to manufacturing gravel products,

7 Perovich Properties also hires employees to work at Taos Gravel and Northern

8 Mountain. Taos Gravel owns its own equipment, and that equipment is maintained

9 and repaired by Taos Gravel employees. Northern Mountain and Taos Gravel do not

10 own the same equipment or have the same mechanics. Joey Perovich (Perovich) is the

11 president and senior manager of Perovich Properties, and he is actively involved in the

12 management of that company. He does not hold, and has never held, an office in

13 Northern Mountain. Although Perovich does not have many functions in the day-to-

14 day operations of Northern Mountain, some of his operational responsibilities there

15 include doing a bid, getting quotes on pricing, putting bid packages together, and

16 reviewing bids.

17 In addition to having different names, officers, and business objectives,

18 Northern Mountain and Perovich Properties have different mailing addresses.

19 Northern Mountain’s mailing address is P.O. Box 348, El Prado, NM 87529. The

6 1 mailing address for Perovich Properties is P.O. Box 1620, El Prado, NM 87529. The

2 companies share a common office building, however, the offices are separated within

3 the building. Northern Mountain and Taos Gravel do not share profits, losses, or

4 expenses. They have different tax ID numbers and separate payroll accounts. They

5 issue separate W-2 forms for their employees.

6 Turning to the evidence surrounding the purchase of the screener that caused

7 Dominguez’ injury, we begin with the testimony of Randy Brooks. At the time of

8 trial, Brooks was a supervisor at Taos Gravel for about fifteen years and was

9 personally involved in the acquisition of the screener at issue in this case. Brooks

10 initially spoke to Western Wire about pricing and leasing the screener for use by Taos

11 Gravel. He testified that when he inquires about pricing, he does so on behalf of Taos

12 Gravel, not for Northern Mountain. He has never purchased equipment for Northern

13 Mountain. Brooks was involved with the acquisition of two screeners—including the

14 one that injured Dominguez—both of which were purchased for Taos Gravel.

15 When the screener at issue in this case arrived at the gravel pit, no one from

16 Northern Mountain assisted in setting up the screener or control room, and no Western

17 Wire or Northern Mountain employees operated any of the rock-crushing equipment

18 at that pit. Only Taos Gravel employees worked at the screen plants, and they were

19 responsible for maintaining, repairing, and operating all the equipment, including the

7 1 conveyor belts, screens, and crusher. According to Perovich, Northern Mountain did

2 not have anything to do with the screener that injured Plaintiff.

3 Perovich signed the equipment lease with Western Wire for the screener as

4 “President.” The lease states that the “lessee” is Northern Mountain although the

5 mailing address on the signature block belongs to Taos Gravel. Perovich testified that

6 he did not know why Northern Mountain’s name is on the lease because Northern

7 Mountain never used the screener and does not use screeners in its operations. He

8 further stated that he did not pay close attention to the lessee name on the document

9 because only the equipment and price were important to him.

10 There is no dispute that the sales order for the screener stated that it was to be

11 billed and shipped to Northern Mountain. In addition, invoices for the rental of the

12 screener were made out to Northern Mountain. However, until it ultimately purchased

13 the equipment, Perovich Properties made all the lease payments to Western Wire for

14 the screener pursuant to the lease. In 1999, Perovich Properties secured financing

15 through Orix Credit Alliance, Inc. in the amount of $143,100 to purchase the screener.

16 Perovich Properties depreciates the equipment it owns for tax purposes and, beginning

17 in the tax year 1999, it depreciated the screener. The cost being depreciated that year

18 was $116,200, the cost of the screener at the time of purchase. Northern Mountain

8 1 made no lease payments on the screener, it did not purchase the screener, and it did

2 not depreciate the screener on its tax schedule.

3 As we have noted, Plaintiff argues that he introduced three pieces of evidence

4 at trial that demonstrate that Northern Mountain had exclusive custody and control

5 over the screener. First, Plaintiff contends that the equipment lease, which lists

6 Western Wire as the lessor of the screener and Northern Mountain as the lessee,

7 supports his theory of ownership and control. Second, Plaintiff asserts that the

8 shipping document showing that the equipment was billed and delivered to Northern

9 Mountain is further evidence of Northern Mountain’s ownership and control of the

10 screener. Finally, Plaintiff relies on the testimony of safety expert Vince Gallagher.

11 We conclude that the evidence relied on by Plaintiff is insufficient to support

12 a finding that Northern Mountain exercised control over the screener on which he was

13 injured. We begin with Plaintiff’s reliance on Gallagher’s testimony. Gallagher

14 testified that the lease gave Northern Mountain the right of possession of the

15 equipment. Specifically, when asked if he found any evidence concerning Northern

16 Mountain’s role in the accident, Gallagher testified, over Defendant’s objection, as

17 follows:

18 The lease agreement says that Northern Mountain . . . ha[s] the 19 only right of possession of the equipment and that they agree to keep it 20 in first-class conditions and repair at their own expense. And they agree 21 to provide liability insurance for it.

9 1 And more importantly[,] at number ten in the agreement entitled 2 use of equipment[,] it says: “The lessee, which is Northern Mountain 3 Constructors, agrees to use, operate and maintain said equipment in 4 accordance with laws.” And it was signed by Joey Perovich as president 5 of Northern Mountain.

6 At the outset, we note that Gallagher was qualified to testify as an expert in the

7 field of occupational safety and health only. He was not qualified to testify as to

8 Northern Mountain’s duty and responsibilities under the lease. However, we need not

9 reach the issue of the validity of Gallagher’s testimony because it essentially entailed

10 no more than reciting the language in the lease. We therefore look to the lease itself

11 to conduct our analysis.

12 Left with only the lease’s identification of Northern Mountain as the lessee and

13 the identification of Northern Mountain on the shipping document, we now decide

14 whether the district court correctly ruled that Northern Mountain did not owe a legal

15 duty to Plaintiff. As we have said, we conclude that it did. The overwhelming

16 evidence at trial was that the equipment used at the gravel pit was owned, operated,

17 and controlled by Taos Gravel. Although Northern Mountain’s name appeared on the

18 lease, the mailing address belonged to Taos Gravel, and the lease was signed by

19 Perovich, who is the president of Taos Gravel, not Northern Mountain. Perovich

20 testified that he did not notice the name of the lessee because he was more concerned

21 with the list and the price of the equipment. Moreover, Plaintiff presented no

10 1 evidence to refute testimony that Taos Gravel first leased and then purchased the

2 screener; that Taos Gravel employees set up and operated the screener, crusher, and

3 control room; that Taos Gravel performed all the obligations under the lease; and that

4 Northern Mountain never used the screener referred to in the lease. There was also

5 no evidence discrediting Perovich’s testimony that Taos Gravel listed the screener on

6 its depreciation schedule and expense report and that Taos Gravel, not Northern

7 Mountain, obtained financing to purchase the screener several months after the lease

8 was signed. In this case, even viewing the conflicts in the lease and shipping

9 document in favor of Plaintiff, we are nevertheless compelled to conclude that the

10 “facts and inferences are so strongly and overwhelmingly in favor of [Defendant] . .

11 . that reasonable people could not arrive at a contrary result.” Melnick v. State Farm

12 Mut. Auto. Ins. Co., 106 N.M. 726, 729, 749 P.2d 1105, 1108 (1988).

13 Plaintiff cites to Tafoya v. Rael, 2008-NMSC-057, 145 N.M. 4, 193 P.3d 551,

14 as support for his assertion that Northern Mountain owed him a duty of ordinary care.

15 In Tafoya, our Supreme Court held that, as a matter of public policy, a general

16 contractor owed a duty of care to an unlicensed independent contractor whom the

17 general contractor had hired to perform dangerous work, which resulted in the

18 independent contractor’s death. Id. ¶ 1. In that case, the defendant, a licensed

19 contractor, was hired to renovate a garage into an apartment. Id. ¶ 2. At some point

11 1 during the construction, the defendant learned that he would have to connect the sewer

2 line from the apartment to the town’s main sewer line, and he hired the decedent to dig

3 the trench for the connection. Id. ¶¶ 3-4. It was undisputed in Tafoya that the

4 defendant was the general contractor for the project and that he hired the decedent as

5 an independent contractor to dig the trench. Id. ¶ 4. Ultimately, our Supreme Court

6 based its determination of duty on “clear expressions of policy in the Construction

7 Industries Licensing Act (CILA), NMSA 1978, §§ 60-13-1 to -59 (1964, as amended

8 through 2001), and its corresponding regulations.” Tafoya, 2008-NMSC-057, ¶ 15.

9 Plaintiff argues that Tafoya controls our determination because “[t]he status of

10 . . . Northern Mountain in this case is essentially one of a general contractor.” We

11 disagree. Unlike Tafoya, there was no evidence presented—much less undisputed

12 evidence—that Northern Mountain was a general contractor and that the “role of

13 Perovich Properties . . . was essentially a subcontractor.” More importantly, as

14 Defendant notes, Plaintiff never raised this argument to the district court and,

15 therefore, it was not preserved for review. “To preserve an issue for review on appeal,

16 it must appear that appellant fairly invoked a ruling of the trial court on the same

17 grounds argued in the appellate court.” Woolwine v. Furr’s, Inc., 106 N.M. 492, 496,

18 745 P.2d 717, 721 (Ct. App. 1987). We also observe that Plaintiff did not file a reply

19 brief and dispute Defendant’s assertion that he failed to raise this argument before the

12 1 district court. We have said that “on appeal, the party must specifically point out

2 where, in the record, the party invoked the court’s ruling on the issue. Absent that

3 citation to the record or any obvious preservation, we will not consider the issue.”

4 Crutchfield v. N.M. Dep’t of Taxation & Revenue, 2005-NMCA-022, ¶ 14, 137 N.M.

5 26, 106 P.3d 1273.

6 We conclude that Northern Mountain did not exercise the requisite amount of

7 control over the screener on which Plaintiff was injured to substantiate any duty of

8 care and/or liability on its part. The district court did not err in granting Northern

9 Mountain’s motion for directed verdict.

10 Plaintiff Failed to Preserve His Argument That Northern Mountain and Perovich 11 Properties, Inc. Acted as a Joint Venture or as Partners

12 Plaintiff argues that the district court erred in failing to allow the jury to

13 consider whether Northern Mountain and Taos Gravel acted as joint venturers or

14 partners with regard to the operation of the screener. Plaintiff does not indicate in his

15 brief in chief where this issue was raised below, and he did not file a reply brief

16 disputing Defendant’s contention that the issue was not preserved. Moreover, we

17 have reviewed the record with respect to the motion for directed verdict, and we find

18 no argument by Plaintiff concerning the issue of joint venture or partnership. We

19 therefore decline to review the issue on appeal. Sandoval v. Baker Hughes Oilfield

20 Operations, Inc., 2009-NMCA-095, ¶ 56, 146 N.M. 853, 215 P.3d 791 (“In order to

13 1 preserve an issue for appeal, [a party] must have made a timely and specific objection

2 that apprised the district court of the nature of the claimed error and that allows the

3 district court to make an intelligent ruling thereon.”).

4 CONCLUSION

5 For the reasons set forth above, we affirm the district court.

6 IT IS SO ORDERED.

7 __________________________________ 8 LINDA M. VANZI, Judge

9 WE CONCUR:

10 _________________________________ 11 MICHAEL D. BUSTAMANTE, Judge

12 _________________________________ 13 TIMOTHY L. GARCIA, Judge