Kruskal v. Moss

960 P.2d 350, 125 N.M. 262
CourtNew Mexico Court of Appeals
DecidedMarch 6, 1998
Docket18116
StatusPublished
Cited by7 cases

This text of 960 P.2d 350 (Kruskal v. Moss) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kruskal v. Moss, 960 P.2d 350, 125 N.M. 262 (N.M. Ct. App. 1998).

Opinion

960 P.2d 350 (1998)
125 N.M. 262
1998-NMCA-073

Martin David KRUSKAL, and Rancho Del Villacito Condominiums, Inc., a New Mexico Corporation, Plaintiffs-Appellants,
v.
Richard J. MOSS, Defendant, Third-Party Plaintiff-Appellee,
v.
Kerry KRUSKAL, Third-Party Defendant-Appellant.

No. 18116.

Court of Appeals of New Mexico.

March 6, 1998.
Certiorari Denied May 20, 1998.

*351 Richard De Stefano, Richard De Stefano Professional Corp., Taos, for appellants and third-party appellant.

John F. McCarthy, Jr., John T.L. Grubesic, White, Koch, Kelly & McCarthy, P.A., Santa Fe, for appellee.

OPINION

DONNELLY, Judge.

{1} Plaintiff Martin Kruskal (Martin) and his son, Third-Party Defendant Kerry Kruskal (Kerry), appeal from a judgment determining that their claims against Defendant Richard Moss (Moss) in a foreclosure action were "exactly equal" to Moss' counterclaims and cross-claims for setoff. Appellants contend that a number of the trial court's findings were not based on substantial evidence or were erroneous as a matter of law, and that certain evidence was improperly excluded by the trial court. We affirm in part and reverse in part.

FACTS AND PROCEDURAL POSTURE

{2} This case involves the third appeal and the latest eruption in a long-simmering dispute between former business partners. In the early 1980s, Kerry and Moss formed Rancho del Villacito Condominiums, Inc. (the Corporation) and Villacito Management Company (the Partnership) in order to construct, sell, and manage "four-plexes" along Taos Ski Valley Road. Kerry, Moss, and Martin were the directors of the Corporation. Eventually, four condominium units were built, as well as a management office.

{3} Relations between Kerry and Moss deteriorated and, in 1985, they agreed to submit their disputes to an arbitrator. In addition to Kerry and Moss, the Corporation and the Partnership were parties to the arbitration, but Martin was not. After extended hearings, the arbitrator awarded, among other things, $18,771.89 to Moss against the Corporation, $19,867.38 to the Corporation against the Partnership, and $790 to Kerry against the Partnership. The arbitrator found Moss liable for one-half of the obligations of the Partnership. The arbitrator also found that Moss had "assumed the responsibility of recovering the money owed by the Gas [Company of New Mexico] to the Corporation [and] Partnership," ordered Moss to return a microwave oven and sofa to Kerry, and ordered Kerry to pay rent to Moss for occupancy of the management office unit as a residence. The arbitration award was upheld in Taos County District Court Cause No. 86-206 CV and, on February 26, 1996, was affirmed on appeal by the New Mexico Supreme Court in an unpublished Decision in Kruskal v. Rancho del Villacito Condominiums, Inc., No. 23,323. Thereafter, the Corporation and the Kruskals brought suit against the arbitrator, which cause was dismissed and, on appeal, the dismissal was affirmed by the Supreme Court in Rancho del Villacito Condominiums, Inc. v. Weisfeld, 121 N.M. 52, 56, 908 P.2d 745, 749 (1995).

{4} Following affirmance of the arbitration award, Moss sought to collect the $18,771.89 amount owed to him by the Corporation, *352 but was frustrated by the Kruskals. This gave rise to further litigation between the parties in Taos County District Court Cause No. 88-319 CV. The court in that cause concluded that "the actions of the Kruskals in preventing Moss from executing on his judgment in Cause No. 86-206(CV) were willful, malicious, fraudulent and in bad faith" and awarded damages in the amount of $20,000, plus costs and post-judgment interest. Following the Supreme Court's affirmance of the arbitration award, Moss succeeded in obtaining partial satisfaction of the judgment from a $25,000 supersedeas bond posted by the Kruskals.

{5} Martin brought suit in the current action to foreclose a note and mortgage on the management building owned by him. He alleged that Moss was indebted to him in the total sum of $112,838.26, including principal, interest, late fees, taxes, insurance, and attorney's fees. Moss responded by asserting claims against Martin and Kerry, which arose out of prior litigation between the parties. During trial herein, the parties presented evidence concerning their contentions regarding setoffs relating to the outstanding balances owed on the various arbitration awards, together with interest, and the balance owed on the damage award to Moss, plus interest.

{6} On the claim of foreclosure, Martin offered evidence indicating that a principal balance of $46,948.20 was due on the note securing the mortgage, together with interest, taxes, insurance, and late charges totaling $60,890.06, for a total indebtedness of $107,838.26. Moss admitted that he owed a principal balance on the note of $46,600.00, in addition to interest, taxes, insurance, and late charges, but claimed a total mortgage liability of only $92,697.85. At the conclusion of trial, the trial court adopted findings of fact and conclusions of law, determining, among other things, that:

The value of the yet unpaid amounts of the judgements awarded Moss in causes 86-206 and 88-319, and any rental owed to Moss by Kerry until the date of judgement in this case are exactly equal to the amounts Moss yet owes Martin on the promissory note which is the subject of this foreclosure action, and any amounts he should owe Kerry or the corporation under the arbitration award in cause 86-206. [Emphasis added.]

{7} The findings of fact entered by the trial court also specified that Martin now holds "the note and mortgage [for the property (Property)] which is the subject of this litigation"; that, previously, "[b]ecause the Corporation was unable to acquire the financing for the ... [management] building, Moss personally acquired the [P]roperty, and the financing for the building"; that "Kerry still occupies the management building of the condominiums without paying any rent to Moss"; and that "[f]rom 1992, a reasonable average rental value of the [management building] was $700.00 [per] month, and from the date of this judgement, is $1,000.00 [per] month." The judgment of the trial court further stated, among other things, that "Defendant Moss is declared to be the owner in fee simple of the [Property], as against any and all other parties in this action," and that Martin, Kerry, and Rancho del Villacito Condominiums, Inc. are "holdover and illegal occupants of the [management building], without any right to occupy it, and should be required to immediately vacate the [management building]. A joint and several reasonable rental for their continued occupancy is $1,000.00 a month...."

DISCUSSION

Findings Challenged on Appeal

{8} Appellants challenge, among other things, the trial court's Finding No. 11 that the net amount owing on each of the parties' claims against each other is "exactly equal," as well as the court's Findings Nos. 4 (that Kerry paid no rent to Moss), 8(a) (that Kerry was not entitled to the sum of $50,000 for a microwave oven and sofa, although the items were later returned by Moss), and 8(b) (that Kerry was entitled to $1,500 which Moss failed to collect from the Gas Company of New Mexico). Appellants additionally challenge the trial court's Finding No.

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

Related

Silva-Steele v. Enghouse
New Mexico Court of Appeals, 2026
State v. Montano
New Mexico Court of Appeals, 2023
Sw. Preferred Fin. v. Bowermeister
New Mexico Court of Appeals, 2022
Coe v. Pueblo of Sandia
New Mexico Court of Appeals, 2019
Baca v. Baca
New Mexico Court of Appeals, 2013
El Paso Field Services Co. v. Montoya Sheep & Cattle Co.
2003 NMCA 113 (New Mexico Court of Appeals, 2003)
Chavez v. S.E.D. Laboratories
14 P.3d 532 (New Mexico Supreme Court, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
960 P.2d 350, 125 N.M. 262, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kruskal-v-moss-nmctapp-1998.