Five Keys, Inc. v. Pizza Inn, Inc.

653 P.2d 870, 99 N.M. 39
CourtNew Mexico Supreme Court
DecidedNovember 1, 1982
DocketNo. 14118
StatusPublished
Cited by3 cases

This text of 653 P.2d 870 (Five Keys, Inc. v. Pizza Inn, Inc.) 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
Five Keys, Inc. v. Pizza Inn, Inc., 653 P.2d 870, 99 N.M. 39 (N.M. 1982).

Opinion

OPINION

RIORDAN, Justice.

On May 1, 1981, Five Keys, Inc. and Ray and Stella Chavez (Plaintiffs) filed suit against Pizza Inn, Inc. (Defendant) seeking damages and a recission of the parties’ Franchise Agreement and Asset Purchase Agreement (Bernalillo County Cause # 81-03139). On May 20,1981, Defendant filed a motion to compel arbitration as required by the parties’ contract. On May 21, 1981, the trial court granted Defendant’s motion and stayed all further court proceedings.

The dispute between the parties went to arbitration and the arbitration hearing ended on September 3, 1981. On October 25, 1981, an award was made by the arbitrator in favor of Defendant against Plaintiffs. On October 30, 1981, Defendant filed a motion for confirmation of the arbitrator’s award and an entry of judgment in Cause # 81-03139. On November 6, 1981, Plaintiffs filed an affidavit of disqualification directed at Judge Madrid in the same cause.

On November 9, 1981, Plaintiffs filed a new cause of action for the modification, correction, clarification and vacation of the arbitration award which was assigned to Judge Franchini (Bernalillo County Cause # 81-07816). On November 24, 1981, the two cases were consolidated by Judge Madrid because “the two actions involve common questions of law and fact, and that consolidation will serve to avoid unnecessary expense and delay.” Plaintiffs again attempted to disqualify Judge Madrid by filing a second affidavit of disqualification in Cause # 81-07816. Also, on November 24,1981, Judge Madrid refused to honor the first affidavit of disqualification as being untimely.

On December 1, 1981, Judge Madrid entered orders confirming the arbitration award, denying Plaintiffs’ motion for modification, correction, clarification or vacation of the arbitration award and refusing to honor the second affidavit of disqualification. Plaintiffs appeal. We affirm the trial court.

The issues on appeal are:

I. Whether Judge Madrid erred by refusing to honor the affidavits of disqualification.

II. Whether the arbitration award should be vacated because the award did not include findings of fact and conclusions of law, and because the award was not timely made.

I. Affidavits of Disqualification

On May 1,1981, Plaintiffs filed their complaint. On May 21, 1981, upon motions and after a hearing in which both parties appeared and argued, Judge Madrid stayed further proceedings in Cause # 81-03139, pending arbitration. A stay of proceedings is defined as a “temporary suspension of the regular order of proceedings in a cause, by direction or order of the court, usually to await the action of one of the parties in regard to some omitted step or some act which the court has required him to perform as incidental to the suit. * * * ” BLACK’S LAW DICTIONARY 1267 (5th ed. 1979); see Rossiter v. Aetna Life Ins. Co. of Hartford, Conn., 96 Wis. 466, 71 N.W. 898 (1897). A stay of proceedings is not a dismissal of a suit. Solarana v. Industrial Electronics, Inc., 50 Haw. 22, 428 P.2d 411 (1967).

On October 30, 1981, after the arbitrator’s award was granted, Defendant filed a motion in Cause # 81-03139 for confirmation of the arbitrator’s award. On November 6, 1981, Plaintiffs filed an affidavit of disqualification directed at Judge Madrid. An affidavit of disqualification of a district judge must be filed before a party has called upon the court to act judicially. State v. Chavez, 45 N.M. 161, 113 P.2d 179 (1941). On May 21, 1981, there was a hearing and the parties presented arguments before Judge Madrid concerning whether the parties were required to arbitrate. Judge Madrid acted judicially by granting the motion to require arbitration. Therefore, Plaintiffs’ affidavit was not timely filed.

On November 9, 1981, Plaintiffs filed a second cause of action for the modification, correction, clarification and vacation of the arbitrator’s award. On November 24, 1981, Judge Madrid consolidated the first cause of action and this second cause of action “on the court’s own motion”.

N.M.R.Civ.P. 42(a), N.M.S.A.1978 (Repl. Pamp.1980), states:

When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. [Emphasis added.]

The consolidation of causes of action is a matter vested solely within the discretion of the trial court. We will not disturb the trial court’s decision unless there is a clear abuse of that discretion. Hanratty v. Middle Rio Grande Conservancy Dist., 82 N.M. 275, 480 P.2d 165 (1970), cert. denied, 404 U.S. 841, 92 S.Ct. 135, 30 L.Ed.2d 75 (1971). Because the two causes of action are so closely related, we find no abuse of the trial court’s discretion in consolidating the two cases.

Concerning the second cause of action, Plaintiffs again submitted an affidavit for disqualification of Judge Madrid, which she refused to honor. We hold that Plaintiffs cannot disqualify Judge Madrid by filing a new lawsuit and a new affidavit of disqualification because both causes of action involved the same parties and issues and because Plaintiffs had previously invoked the jurisdiction of the court before attempting to disqualify Judge Madrid in Cause # 81-03139. See State v. Ericksen, 94 N.M. 128, 607 P.2d 666 (Ct.App.1980). Therefore, Judge Madrid properly denied the second affidavit of disqualification.

II. Arbitration Award

Both parties agree that findings of fact and conclusions of law are not required to be made in an arbitration award unless required by statute or by the parties’ agreement. 6 C.J.S. Arbitration § 100 (1975). Plaintiffs assert that the arbitrator violated paragraph 17 by failing to make findings of fact and conclusions of law. Paragraph 17 of the parties’ contract stated:

Any dispute or controversy arising out of or relating in any way to this Agreement * * * shall be determined by binding arbitration * * *.
******
(b) The arbitrator designated and acting under this Agreement shall make his award in strict conformity with the rules of the American Arbitration Association and shall have no power to depart from or change any of the provisions hereof, and shall determine the controversy in accordance with the laws of the State of New Mexico as applied to the facts found by him.
(c) The decision of the arbitrator shall be rendered within forty-five (45) days. * * * [Emphasis added.]

The rules of the American Arbitration Association do not require findings of fact or conclusions of law. Hale v.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Sangster v. Ortiz
New Mexico Court of Appeals, 2017
DLB Energy Corp. v. Oklahoma Corp. Commission
1991 OK 5 (Supreme Court of Oklahoma, 1991)
Anzalone v. Doan
540 So. 2d 385 (Louisiana Court of Appeal, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
653 P.2d 870, 99 N.M. 39, Counsel Stack Legal Research, https://law.counselstack.com/opinion/five-keys-inc-v-pizza-inn-inc-nm-1982.