Jemez Properties, Inc. v. Lucero

608 P.2d 157, 94 N.M. 181

• Court: New Mexico Court of Appeals
• Decided: December 27, 1979
• Docket: 3515
• Status: Published

Opinions

OPINION

ANDREWS, Judge.

Three questions are presented by this appeal: (1) whether the forgery of a deed and the falsification of public records concerning a parcel of land are “exceptional circumstances” which justify the reopening of the judgment in a quiet title action under Rule 60(b)(6), N.M.R.Civ.P., N.M.S.A.1978; (2) whether a showing that the deed under which the defendant in an ejectment action claims title to the subject property is forged is, by itself, sufficient to support the summary granting of the ejectment; and (3) whether attorneys’ fees may be granted against one who has forged a deed so as to require the other party to incur such fees in an action for ejectment where no slander of title was specifically pled.

The initial action was brought in Sandoval County District Court by Jemez Properties, Inc., through Robert K. and Rosemary Walsh, its proprietors, to quiet title to and eject Tony and Josephine Lucero from the subject property. This case, Cause No. 6260, was settled and on August 25, 1975, an order was entered dismissing the complaint and quieting title in the Luceros. In a companion case, Cause No. 6501, Frederic W. and Helen Airy brought suit against the Luceros seeking an easement across the same tract of land. This case was tried before the court and relief was denied.

On September 21, 1976, the Airys moved for a new trial, introducing affidavits showing that the deeds under which the Luceros claimed title had been forged by the alteration of the description of the eastern boundary of the Lucero property. According to the affidavits, Tony Lucero had purchased sixteen acres from Minnie V. Ralston in 1951, which was described as being “bounded on the east by the Jemez river”, but at the time of the trial in Causes No. 6260 and 6501, the Sandoval County Clerk’s records had been altered to show that both the deed to the Luceros and the deed to Ralston from her father, Mike Thurlo, had an eastern boundary described as “the public road at Canyon.” The Airys submitted affidavits from Ralston, Thurlo, and a title company demonstrating the forgery. The court granted the Airys a new trial, with leave to amend the complaint alleging the fraud of the Luceros.

The Walshes immediately moved to set aside the final order in Cause No. 6260 under Rule 60(b), claiming the existence of extraordinary circumstances resulting from the alleged fraud and forgery of the deed. The Luceros did not deny the forgery, but instead tried to establish the judgment in the earlier quiet title suit as a bar. The Walshes moved for summary judgment based upon the deposition of Robert Walsh, the Luceros, and the affidavits. The court ruled that the Walshes had superior title to the land and awarded them $3,000.00 in damages. The Luceros appeal from that judgment and the order vacating the original 1975 judgment.

Initially, however, we note that the appellees seek dismissal of this appeal as untimely, arguing that the order granting the Rule 60(b) motion was an appealable final order. Relying on Hoover v. City of Albuquerque, 56 N.M. 525, 245 P.2d 1038 (1952), appellees assert that the order setting aside the earlier judgment was itself a final judgment; and hence, that an appeal from that decision must be taken, if at all, within thirty days of the entry of the order pursuant to Rule 3(a)(3), N.M.R.Civ.App., N.M.S.A.1978. This point is not well taken.

In Albuquerque Prod. Credit Ass’n v. Martinez, 91 N.M. 317, 573 P.2d 672 (1978), it was held that an order setting aside an earlier judgment under Rule 60(b) was interlocutory and nonappealable; thus, overruling Hoover by implication. Since this decision was not immediately appealable, it may be reviewed in this appeal, which is properly taken from the judgment entered in the reopened case.

In their first point, the Luceros seek reversal of the trial court and reinstatement of its August 25, 1975, order because the Rule 60(b) motion to vacate the judgment was untimely filed more than one year after the order was entered. Rule 60(b)(3) allows relief from a final judgment for “fraud” or “misrepresentation”, and Rule 60(b)(6) for “any other reason justifying relief from the operation of the judgment.” The rule further provides that for reasons of (3) fraud or misrepresentation, “the motion shall be made * * * not more than one [1] year after the judgment [or] order * * * was entered or taken.” Parks v. Parks, 91 N.M. 369, 574 P.2d 588 (1978). In the instant case, more than a year elapsed between the entry of the challenged order and the Rule 60(b) motion; and thus, Rule 60(b)(6) is the only provision under which the judgment may be set aside.¹

Rule 60(b)(6) provides a reservoir of equitable power to do justice in a given case, but it is limited to instances where there is a showing of exceptional circumstances. Perez v. Perez, 75 N.M. 656, 409 P.2d 804 (1966); Battersby v. Bell Aircraft Corporation, 65 N.M. 114, 332 P.2d 1028 (1958).

This is certainly a case where we cannot say that “exceptional circumstances” were not present, or that the trial court did not act properly and within its sound discretion in allowing the modification of the final judgment. Perez v. Perez, supra. While the Luceros were guilty of ordinary fraud insomuch as they misrepresented their interest in the subject properties to the Walshes and the Airys, their actions went beyond the common fraud contemplated by Rule 60(b)(3); the Luceros tampered with the physical evidence of the case in forgoing the deed which was presented to the court and they tampered with public records in the county clerk’s office in such a way as to make their other misdeeds undetectable by the method upon which the court would commonly rely. See Davis v. Pitchess, 518 F.2d 141 (9th Cir. 1974); Phillips v. Crown Central Petroleum Corp., 556 F.2d 702 (4th Cir. 1977); Bros, Inc. v. W. E. Grace, Mfg. Co., 320 F.2d 594 (5th Cir. 1963); Aro Corp. v. Allied Witan Co., 531 F.2d 1368 (6th Cir. 1976).

We are aware of Parks v. Parks, supra, which held that Rule 60(b)(6) may not be used to circumvent the time limit set out for the reopening of judgments under Rule 60(b)(1), (2) and (3), so that Rule 60(b)(6) may be used to reopen judgments only for reasons other than those set out in (b)(1), (2) and (3) and only upon showing of exceptional circumstances. We think those exceptional circumstances exist here. The trial court did not abuse its discretion in granting the motion under Rule 60(b), supra.

Next, the Luceros argue that the court erred in granting summary judgment in ejectment since the plaintiffs did not meet their burden of establishing that they, rather than the defendants, are entitled to possession of the property. Section 42-4-7, N.M.S.A.1978. Under Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972), summary judgment must be denied if there exists a reasonable doubt as to whether there is a genuine issue of material fact yet to be determined. Defendants contend that there is substantial evidence in the record to the effect that they are the true owners of the property and we agree.

In applying the Goodman v. Brock, supra, test to the present situation, we are guided by the recent decision of the New Mexico Supreme Court in Fischer v. Mascarenas, 93 N.M. 199, 598 P.2d 1159 (1979), which dealt with a very similar fact pattern. In that case, Fischer sued Mascarenas to enjoin the latter from interfering with real property claimed by Fischer. Mascarenas claimed to own the property; but Fischer, in support of his motion for summary judgment, presented uncontradicted evidence to show that the deeds upon which Mascarenas based his claim to the property were insufficient either because they described the wrong property or were clearly inferior to Fischer’s deed. The Supreme Court refused to uphold the summary judgment granted below:

The evidence of Fischer, at its best, proves only that he has legal title. It does not rule out an inference that equitable title is in Mascarenas, and does not preclude an inference of mistaken description in the deed to persons in the Mascarenas chain of title from the common predecessor in title of the parties. Id. at 1161.

In this case, as in Fischer, plaintiffs have shown that the deed upon which defendants’ title is asserted is fatally defective, but this alone will not support a summary determination of the cause where there are indications external to the deed which might support defendants’ position.

In their offer of proof for the summary judgment, Mr. Walsh, one of the plaintiffs, said there were exceptions within the grant and they were determined by asking persons living in the area about the exceptions and through deeds showing the survey description and exceptions. Mr. Walsh also spoke to Jesus Jaramillo, a local person with some knowledge of the area, regarding the grant lands. However, Mr. Lucero, one of the defendants, said that Jesus Jaramillo and others indicated that the eastern boundary of the disputed land was to the road and did not stop at the river. Mr. Lucero states that the deed from Mr. Ralston actually should have shown the eastern boundary to be the road and that “everybody knows the boundary is up the road.” Mr. Walsh stated: “I know we didn’t know where boundaries were.”

Summary judgment, being an extreme remedy to be employed with great caution, cannot be substituted for a trial on the merits as long as one issue of material fact is still present in the case. The remedy should not be employed where there is the slightest doubt as to the existence of an issue of material fact. Even where the basic facts are undisputed, if equally logical but conflicting inferences can be drawn from the facts, summary judgment should be denied. Fischer v. Mascarenas, supra.

Whether plaintiffs in fact own the land is in dispute for two reasons: first, there is no showing as a matter of law that the land is outside of an exception to the grant; and second, there is the conflicting testimony as to whether the east boundary is to the “road” or to the “river”. Although many of the facts are not disputed, equally logical but conflicting inferences can be drawn, making summary judgment impermissible. Fischer v. Mascarenas, supra; Pharmaseal Laboratories, Inc. v. Goffe, 90 N.M. 753, 568 P.2d 589 (1977). Plaintiffs failed to carry their burden on their motion for summary judgment.

The court awarded attorneys fees in the judgment. Defendants assert that because no statute or rule of court exists permitting recovery of attorneys fees in an ejectment action, no fees are recoverable. See Aboud v. Adams, 84 N.M. 683, 507 P.2d 430 (1973). However, plaintiffs compare their predicament to that of a party aggrieved in a slander of title cause where the award of expenses of litigation is also established as a legitimate element of damages.² See Annot. 39 A.L.R.2d 840 (1955); Olsen v. Kidman, 120 Utah 443, 235 P.2d 510 (1951).

One who maliciously publishes false matter which brings in question or disparages the title to property, thereby causing special damages to the owner, may be held liable in a civil action for damages for slander of title. See Garver v. Public Service Company of New Mexico, 77 N.M. 262, 421 P.2d 788 (1966). However, an action for slander of title is not predicated merely upon the words spoken or written, but the gist of the action is recovery of special damages for the loss sustained by reason of the speaking and publication of slander concerning the plaintiffs’ title to property. 50 Am.Jur.2d, Libel and Slander, § 552. Garver v. Public Service Company of New Mexico, supra; Branch v. Mays, 89 N.M. 536, 554 P.2d 1297 (1976). Special damages must be pleaded as well as proved in a suit for slander of title. Garver v. Public Service Company of New Mexico, supra. Here, the amended complaint failed to claim slander of title and, more important, the allegations of damages in the amended complaint failed to meet the requirement that special damages must be specifically stated. Garver v. Public Service Company of New Mexico, supra. Where the action is not brought for slander of title, plaintiffs cannot rely on remedies peculiar to that action, whether it be in the matter of damages or attorneys fees. In New Mexico, absent statutory authority or rule of court, attorneys fees are not recoverable as an item of damages. Aboud v. Adams, supra. This case does not present an exception to this rule (see Gregg v. Gardner, 73 N.M. 347, 388 P.2d 68 (1963)) and is, therefore, remanded with instructions that the award of attorneys’ fees be reversed.

Finally, the Walshes argue that the court erred in failing to award compensatory damages, and in so doing placed the “miscreant in this and similar instances in a zero loss position where had they succeeded, they would have been enriched by nearly $50,000.00.” In this case, the trial court found only that “plaintiffs incurred a liability of Three Thousand Dollars ($3,000.00) for attorneys’ fees in this action.” As shown above, this was an improper awarded of damages.

In order to prove compensatory damages, the evidence must afford data, facts, and circumstances from which the actual loss can be determined with reasonable certainty and the plaintiffs must show by a preponderance of evidence the damages caused by the injury complained of. Stevens v. Mitchell, 51 N.M. 411, 186 P.2d 386 (1947); Christman v. Voyer, 92 N.M. 772, 595 P.2d 410 (Ct.App.1979).

We conclude, therefore, that the trial court acted within its discretion in reopening the earlier judgment under Rule 60(b)(6), but that it erred in granting summary judgment in the reopened case and in awarding attorneys’ fees where no cause sounding in slander of title was properly pled or proved. We, therefore, reverse and remand this case for a hearing on the merits.

IT IS SO ORDERED.

WALTERS, J., concurs. SUTIN, J., dissenting.

1 . Rule 60(b) expressly reserves to the court the common law power to set aside judgments in an independent equitable action. The Walshes contend that such an action would lie on the theory of “fraud upon the court.” However, fraud upon the court embraces only that species of fraud which attempts, successfully or unsuccessfully, to defile the court itself or which fraud is perpetrated by officers of the court so that the judicial system cannot perform in a usual manner: for example, bribery of judges, employment of counsel to “influence” the court, bribery of the jury, or the involvement of an attorney in the perpetration of the fraud. See Lockwood v. Bowles, 46 F.R.D. 625 (1969); 7 Moore’s Federal Practice II 60.33 at 512-13. The facts of this case do not establish fraud upon the court.

2 . Plaintiffs argue that attorneys’ fees should be considered in the award of compensatory or exemplary damages where there is a clear showing of malicious or willfully fraudulent act. Larson v. Sterling Mut. Life Ins. Co., 153 S.W.2d 177 (Tex.Civ.App.1941); 25 C.J.S. Damages § 50 (1966). New Mexico law is to the contrary, Aboud v. Adams, supra.