Kemper Auto Home Ins. Co. v. Bazzar

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 Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 KEMPER AUTO HOME 8 INSURANCE COMPANY,

9 Plaintiff-Appellant, 10 and NO. 30,878

11 STEPHEN BAZZAR and RENEE 12 BAZZAR,

13 Involuntary Plaintiffs-Appellants, 14 v.

15 DAVID L. HUHN d/b/a D.L. HUHN 16 REAL ESTATE,

17 Defendant-Appellee.

18 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 19 Theresa M. Baca, District Judge

20 O’Brien & Padilla, P.C. 21 Richard M. Padilla 22 Alicia M. Santos 23 Albuquerque, NM

24 for Appellants 25 Roger Eaton

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1 Albuquerque, NM 2 for Appellee

3 MEMORANDUM OPINION 4 BUSTAMANTE, Judge. 5 Plaintiffs appeal from an award of summary judgment. We issued a notice of 6 proposed summary disposition, proposing to reverse. Defendant has filed a 7 memorandum in opposition, which we have duly considered. Because we remain 8 unpersuaded, we reverse and remand for further proceedings. 9 The nature of the case, the issues presented, and the essentials of our analysis 10 have previously been described at greater length. In the briefest terms, Defendant 11 moved for summary judgment principally on grounds that no duty could be said to 12 exist under the circumstances presented in this case. [RP 22-28] However, as we 13 observed in the notice of proposed summary disposition, the general duty of care 14 which every person must exercise for the safety of others applies. See generally 15 Lerma v. State Highway Dep’t, 117 N.M. 782, 784, 877 P.2d 1085, 1087 (1994) 16 (observing that “every person has a duty to exercise ordinary care for the safety of 17 others” when that person chooses to act (internal quotation marks and citation 18 omitted)); Yount v. Johnson, 1996-NMCA-046, ¶ 4, 121 N.M. 585, 915 P.2d 341 (“In

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1 recent decades, our courts have moved forcefully towards a public policy that defines 2 duty under a universal standard of ordinary care, a standard which holds all citizens 3 accountable for the reasonableness of their actions . . . [t]he theme, constantly 4 reiterated, is that every person has a duty to exercise ordinary care for the safety 5 others.” (internal quotation marks and citation omitted)). Additionally, Defendant’s 6 undisputed involvement with the sale of the property, including his status as a 7 signatory to a purchase agreement which expressly incorporates a sub-part describing 8 his duties as a broker, including the duty of “[h]onesty and reasonable care,” provides 9 an additional basis for the existence of a duty. [RP 42-44] See generally Adobe 10 Masters, Inc. v. Downey, 118 N.M. 547, 548, 883 P.2d 133, 134 (1994) (“When 11 professional services arising from contract are substandard, a plaintiff may bring a 12 cause of action for malpractice based on negligence or for breach of contract . . . [i]n 13 either case, the standard of care is the same and is measured by the duty to apply the 14 knowledge, care, and skill of reasonably well-qualified professionals practicing under 15 similar circumstances.”). 16 In his memorandum in opposition Defendant is silent with respect to the 17 applicability of the general duty of care, [MIO 2-5] and he expressly acknowledges 18 that the aforementioned document imposed duties of honesty and reasonable care.

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1 [MIO 4] We therefore conclude that the award of summary judgment cannot be 2 sustained on the theory that Defendant owed no duty. 3 At this juncture, Defendant appears to have shifted his focus to the element of 4 breach. [MIO 2-5] As we observed in the notice of proposed summary disposition, 5 however, the question of whether a defendant breached a duty owed to a plaintiff is 6 generally a question of fact. See Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 30, 7 134 N.M. 43, 73 P.3d 181 (explaining that whether the defendant took appropriate 8 precautions was “a question concerning breach of a duty of ordinary care for the 9 finder of fact”); Lessard v. Coronado Paint & Decorating Ctr., Inc., 10 2007-NMCA-122, ¶ 27, 142 N.M. 583, 168 P.3d 155 (observing that breach of duty 11 is a question of fact for the jury); Knapp v. Fraternal Order of Eagles, 106 N.M. 11, 12 13, 738 P.2d 129, 132 (Ct. App. 1987) (observing that whether or not a defendant 13 breached a duty is a question of the reasonableness of conduct, and thus a fact 14 question). As such, the question of breach is rarely susceptible to summary resolution. 15 See, e.g., Spencer v. Health Force, Inc., 2005-NMSC-002, ¶¶ 21-22, 137 N.M. 64, 107 16 P.3d 504 (rejecting the respondent’s arguments that it had acted reasonably and stating 17 that questions of breach are not suitable for summary judgment because questions of 18 fact are for the jury).

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1 With respect to the question of breach, we understand Defendant to argue that 2 there is no evidence that he had any involvement with the removal of the washer and 3 dryer beyond communicating the buyers’ desire that the appliances be removed. He 4 asserts that such conduct could not be said to constitute a breach of any duty that he 5 owed to Plaintiffs. [MIO 2-5] We disagree. 6 As we observed in the notice of proposed summary disposition, Plaintiffs 7 presented circumstantial evidence in support of their position that Defendant was more 8 intensely involved with the removal of the washer and dryer than Defendant has 9 suggested. This evidence included a handwritten note on Defendant’s letterhead 10 providing a quote for the replacement cost of the appliances, and also reflecting the 11 return of the keys from the company that undertook the remediation. [RP 3] 12 Additionally, Plaintiffs submitted a copy of a check drawn from Defendant’s account 13 in the approximate amount previously quoted, which contains a notation suggesting 14 that it was submitted in an effort to compensate the Bazzars for the washer and dryer. 15 In light of the existence of this evidence, it would be improper to conclude, at this 16 juncture in the proceedings, that Defendant’s involvement with the removal of the 17 washer and dryer was as limited as he claims. See generally Juneau v. Intel Corp., 18 2006-NMSC-002, ¶ 23, 139 N.M. 12, 127 P.3d 548 (“Judges should not make

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1 credibility determinations or weigh circumstantial evidence at the summary judgment 2 stage.”); Azar v. Prudential Ins. Co. of Am., 2003-NMCA-062, ¶ 71, 133 N.M. 669, 3 68 P.3d 909 (“If there are disputed facts bearing upon the existence of the duty, . . . 4 they are to be determined by the jury under appropriate instructions as to the existence 5 of the duty.” (internal quotation marks and citation omitted)). 6 Defendant takes issue with the probative value of the circumstantial evidence, 7 contending that the check cannot be regarded as an admission of liability, and that the 8 documents merely reflect his involvement with the clean-up. [MIO 3] However, these 9 are not the only inferences that could reasonably be drawn. See generally Handmaker 10 v. Henney, 1999-NMSC-043, ¶ 18, 128 N.M. 328, 992 P.2d 879 (observing that a 11 reviewing court must view the facts in the light most favorable to the party opposing 12 the motion for summary judgment, drawing all reasonable inferences in support of a 13 trial on the merits). A fact finder could reasonably infer that the reason Defendant 14 took it upon himself to provide quotes and otherwise assist with the remediation effort 15 was because he had been involved with the removal of the appliances, thereby causing 16 the damage. Accordingly, it would be improper to adopt Defendant’s restrictive view 17 of the circumstantial evidence in this case. See generally Sarracino v. Martinez, 117 18 N.M. 193, 194, 870 P.2d 155, 156 (Ct. App. 1994) (“Summary judgment is improper

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1 when evidence is susceptible to reasonable conflicting inferences.”). 2 In light of the foregoing, it is unnecessary to address Defendant’s contention 3 that mere communication of information could not be said to constitute a breach of 4 any applicable duty of care. Although we understand that Defendant would like to 5 receive an advisory ruling on the matter, [MIO 3-4] “because we cannot know what 6 will transpire on remand, it would be premature for us to act on [Defendant’s] request” 7 for a ruling on this question. Talbott v. Roswell Hosp. Corp., 2005-NMCA-109, ¶ 42, 8 138 N.M. 189, 118 P.3d 194. 9 Accordingly, for the reasons stated above and in the notice of proposed 10 summary disposition, we reverse and remand for further proceedings. 11 IT IS SO ORDERED.

12 13 MICHAEL D. BUSTAMANTE, Judge

14 WE CONCUR:

15 16 CELIA FOY CASTILLO, Chief Judge

17 18 LINDA M. VANZI, Judge