Kuemmerle v. United New Mexico Bank at Roswell, N.A.

831 P.2d 976, 113 N.M. 677
CourtNew Mexico Supreme Court
DecidedMay 5, 1992
Docket19836
StatusPublished
Cited by7 cases

This text of 831 P.2d 976 (Kuemmerle v. United New Mexico Bank at Roswell, N.A.) 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
Kuemmerle v. United New Mexico Bank at Roswell, N.A., 831 P.2d 976, 113 N.M. 677 (N.M. 1992).

Opinion

OPINION

BACA, Justice.

Plaintiffs-appellants Edward and Lora Kuemmerle appeal the judgment of the trial court in favor of defendant-appellee United New Mexico Bank at Roswell (the “Bank”). Appellants raise three issues for our consideration: (1) Whether the Bank’s security interest in the inventory attached and was perfected prior to the attachment of appellants’ landlords’ lien; (2) whether the Bank has a valid purchase money security interest, and, if so, whether the Chumley lease subordinates appellants’ landlords’ lien to the Bank’s security interest; and (3) whether the landlords’ lien waiver executed by Mr. Kuemmerle is effective against both appellants. We affirm.

I

In January of 1987, appellants leased a building to certain individuals, the Chumleys and Pattons (the “Chumleys”), to operate a grocery store, the Sunset Market (the “Market”). The Chumleys secured financing for their business from the Bank and gave the Bank a promissory note and security interest in furniture, fixtures, equipment, and inventory. The lease agreement (the “Chumley lease”) contained a term that subordinated appellants’ landlords’ lien to the rights of any purchase money security interest holder “in trade fixtures and any other personal property and equipment installed by [the Chumleys] in the leased premises * * * * ” In addition, appellant Mr. Kuemmerle, but not Mrs. Kuemmerle, signed a landlords’ lien waiver in favor of the Bank.

In January of 1988, the Chumleys negotiated to sell the Market to the Daniels and the Daniels negotiated with the Bank to secure financing for their purchase of the business. In anticipation of the loan closing, the Bank requested that the Daniels obtain the Kuemmerles’ signatures on a lien waiver form. On February 3, the lien waiver form was returned to the Bank with a signature that purported to be the signature of Mr. Kuemmerle. The next day, the Bank and the Daniels closed their loan transaction, which was evidenced by two promissory notes in the amounts of $81,-062.63 and $20,000.00. The notes provided that the purchase money nature of the loans would not be affected by extension, renewal, consolidation, or refinancing of the loans. To secure the larger note, the Daniels executed a security agreement in favor of the Bank that created a security interest in the furniture, fixtures, equipment owned or subsequently acquired, and in the inventory and proceeds from such inventory. On February 12, the Chumleys and the Daniels consummated the sale of the Market. The Bank filed the financing statements in Chaves County on March 31, and with the Secretary of State on April 6. The Daniels operated the Market without an agreement with appellants from the date of their purchase of the Market until April 8, when the Daniels and appellants entered into an assumption agreement whereby the Daniels assumed the Chumley lease with the Kuemmerles with minor modifications.

The Daniels ordered their inventory from a wholesaler who would segregate the Daniels’ order at the warehouse, identify the goods as the Daniels, and require payment from the Daniels one week prior to shipment. The inventory was sold and replaced approximately every forty days.

The Daniels’ loans were consolidated and renewed by the Bank on May 11 and the Bank accepted additional collateral, changed the interest rate to current market rate, and extended further credit to the Daniels. The Bank did not file new financing statements in conjunction with the refinancing. In July, the Daniels failed to pay the rent due to appellants and failed to provide insurance as required by the lease. The Daniels were evicted from the premises and appellants obtained a default judgment against the Daniels for the back rent and insurance payments. At the time of the eviction, the Daniels owed the Bank $121,210.21 on the loans. Appellants conceded that, under the lease assumption agreement, their landlords’ lien was subordinated to the Bank’s purchase money security interest in the furniture, fixtures, and equipment. However, appellants contended that their landlords’ lien was prior to the Bank’s security interest in the inventory. The Bank and appellants agreed that the inventory should be sold by the Bank and the proceeds held until the respective priority rights could be determined. The Bank liquidated these assets and retained $38,966.47 in escrow and appellants instituted the instant action for a declaratory judgment concerning the parties’ priorities to the funds in escrow.

The trial court found that the Bank was entitled to the proceeds on three different theories, any one of which, if correct, would support affirmance. First, the trial court concluded that the Bank had a security interest in the inventory purchased by the Daniels after April 6 and that this security interest attached before the inventory was delivered to the premises. Because the appellants’ landlords’ lien could not attach to the inventory until the inventory reached the premises, the trial court concluded that the Bank’s security interest was superior to appellants’ landlords’ lien. Second, the trial court found that the subordination clause in the Chumley lease subordinated appellants’ lien to the Bank’s purchase money security interest. Third, the trial court found that the lien waivers executed by Mr. Kuemmerle were effective against both appellants. Appellants disagreed and this appeal ensued.

II

New Mexico recognizes that the priority between a landlords’ lien and an Article 9 security interest is not covered by the statutory provisions of the Uniform Commercial Code — Secured Transactions, NMSA 1978, §§ 55-9-101 to -507 (Repl.Pamp.1987 & Cum.Supp.1991). National Inv. Trust v. First Nat’l Bank in Albuquerque, 88 N.M. 514, 516, 543 P.2d 482, 484 (1975). In such a case, the common law doctrine of “first in time, first in right” controls the priorities between the parties. See id. at 515, 543 P.2d at 483. Thus, the critical inquiry in this appeal is whether the Bank’s security interest in the Daniels’ inventory attached prior to the attachment of appellants’ landlords’ lien. See id.

A

Citing Chessport Millworks, Inc. v. Solie, 86 N.M. 265, 522 P.2d 812 (Ct.App.1974), and Gathman v. First American Indian Land, Inc., 74 N.M. 729, 398 P.2d 57 (1965), appellants contend that their landlords’ lien attached when they agreed to lease the building to the Chumleys in January of 1987, and, by virtue of their assumption agreement with the Daniels, their lien continued to be valid. In the alternative, appellants contend that their landlords’ lien attached on February 3, 1988, because the assumption agreement, entered on April 8, with the Daniels was back dated and obligated the Daniels under the lease from the beginning of February. In either case, appellants conclude that their landlords’ lien attached before the Bank’s security interest was perfected by the Bank’s filing of the financing statement on April 6.

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Bluebook (online)
831 P.2d 976, 113 N.M. 677, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kuemmerle-v-united-new-mexico-bank-at-roswell-na-nm-1992.