Freedman v. Board of County Commissioners for Quay County

• Court: New Mexico Court of Appeals
• Decided: September 14, 2016
• Docket: 35,287
• Status: Unpublished

Opinion

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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

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

2 BARRY FREEDMAN, on behalf of Ute 3 Lake Ranch, Inc., a Colorado Corporation,

4 Plaintiff-Appellant,

5 v. No. 35,287

6 BOARD OF COUNTY COMMISSIONERS 7 FOR QUAY COUNTY,

8 Defendant-Appellee.

9 APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY 10 Kea W. Riggs, District Judge

11 Gordon & McWhirter LLC 12 Paul Gordon 13 Denver, CO

14 Richard F. Rowley II 15 Clovis, NM

16 for Appellant

17 Donald C. Schutte 18 Tucumcari, NM 19 20 for Appellee 1 MEMORANDUM OPINION

2 BUSTAMANTE, Judge.

3 {1} Plaintiff appeals from a district court order granting the County’s motion to

4 dismiss. We issued a calendar notice proposing to affirm. Plaintiff has responded with

5 a memorandum in opposition. We affirm.

6 {2} Plaintiff continues to claim that the district court erred in granting Defendant’s

7 motion to dismiss. Plaintiff’s complaint asserted that it was being brought on behalf

8 of a company (“ULR”) incorporated in Colorado and engaged in business in Quay

9 County. [RP 1] Plaintiff, the majority shareholder of ULR, claimed to be bringing the

10 suit “as a derivative claim on behalf of ULR.” [RP 2, ¶ 7] The district court dismissed

11 the action based on a Colorado court order appointing a receiver for ULR, and giving

12 the receiver exclusive authority over all corporation matters, including litigation. [RP

13 176]

14 {3} New Mexico courts accord full faith and credit to the judgments to other states,

15 unless the judgment is void. See Jordan v. Hall, 1993-NMCA-061, ¶ 5, 115 N.M. 775,

16 858 P.2d 863 (“The final determinations by the courts of one state are entitled to full

17 faith and credit in the courts of its sister states.”). Because “foreign judgments cannot

18 be collaterally attacked on the merits,” after the foreign judgment is filed, “the

2 1 grounds for reopening or vacating are limited to lack of jurisdiction, fraud in the

2 procurement, lack of due process, or other grounds making a judgment invalid or

3 unenforceable.” Id. ¶ 6.

4 {4} Plaintiff’s complaint indicated that he had requested the Colorado Receiver to

5 initiate litigation against Defendant, but the Receiver refused to do so. [RP 2] We

6 believe that Plaintiff’s remedy was to petition the Colorado courts for relief, rather

7 than to ask New Mexico courts to effectively ignore the Colorado court order [RP 11]

8 appointing the Receiver. We note that the Receiver’s exclusive authority over any

9 ULR litigation [RP 12, ¶ 5] is consistent with New Mexico’s corporate receivership

10 provisions. See NMSA 1978, § 53-16-17(D) (1975) (“A receiver of a corporation

11 appointed under the provisions of this section may sue and defend in all courts in his

12 own name as receiver of the corporation. The court appointing the receiver has

13 exclusive jurisdiction of the corporation and its property, wherever situated.”). We

14 also disagree with Plaintiff’s contention that it would be necessary for a New Mexico

15 court to appoint a receiver in order to give him a fair hearing on the issues. [MIO 2-3]

16 In light of the exclusive authority granted to the Receiver by the Colorado court,

17 Plaintiff’s remedy is to seek relief from that court. We will not undermine the

18 Colorado court by independently allowing Plaintiff to initiate litigation on ULR’s

19 behalf in New Mexico.

3 1 {5} For the reasons set forth above, we affirm.

2 {6} IT IS SO ORDERED.

4 _______________________________________ 5 MICHAEL D. BUSTAMANTE, Judge

6 WE CONCUR:

7 8 M. MONICA ZAMORA, Judge

9 10 J. MILES HANISEE, Judge