Petritsis v. Simpier

474 P.2d 490, 82 N.M. 4
CourtNew Mexico Supreme Court
DecidedSeptember 14, 1970
Docket9005
StatusPublished
Cited by16 cases

This text of 474 P.2d 490 (Petritsis v. Simpier) 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
Petritsis v. Simpier, 474 P.2d 490, 82 N.M. 4 (N.M. 1970).

Opinion

OPINION

McKENNA, Justice.

This appeal is also an outgrowth of the sale of a clothing retail business known as Duds for Dolls. See our opinion in Durrett v. Petritsis, 82 N.M. 1, 474 P.2d 487 filed today. It gives some of the background of this dispute.

Plere, Petritsis, the appellant, sued Mrs. Loretta Brady and the Tiptons on a $6,400 note signed by them. The amount of the note equaled the down payment of $6,000 for the business purchased from appellee Durrett, plus $400 advanced by Petritsis for working capital. We referred to this note in Durrett v. Petritsis, No. 8982, supra. Petritsis attached the assets of Duds for Dolls which were then sold in a liquidation sale. The funds realized were deposited with the court.

Mrs. Brady denied liability under the note, affirmatively alleging that she was induced to sign the note without receiving any consideration for it. The Tiptons filed their own answer generally admitting the complaint and further alleging that Mrs. Brady, in exchange for their interest in Duds for Dolls, agreed to assume all obligations of the business and hold them harmless, specifically including this note sued on. They asked that they have judgment over against Mrs. Brady for any judgment against them. A number of suppliers, creditors of the business, intervened to establish prior rights to funds in the registry of the court. The case was tried to the court without a jury.

The district court entered judgment for the defendants on the note; against the Tiptons on their cross-claim against Mrs. Brady, and determined that the creditors of the business had prior right to the funds deposited in court.

Under his argument and authorities of his brief-in-chief, the appellant lists six points. Point I is an attack on twenty-three findings as not supported by substantial evidence and contrary to the evidence. Point II is an attack on ten conclusions. Point III complains of the court’s failure to adopt some 26 requested findings. Point IV states that the court erred in refusing to adopt two requested conclusions. Point V relates to the intervenors and alleges that if the appellee Mrs. Brady was the owner of the business, then the plaintiff’s attachment proceedings are prior to the intervenors’ rights; if the appellant is determined to be the owner, then the intervenors have no lien on the funds until they prove their claims against the appellant. Point VI is a general attack on the judgment as not supported by substantial evidence and contrary to law.

In the argument portion of his brief, the appellant has lumped together all of these six points. No authorities are cited. Testimony is quoted, with comments thereon, in one continuous flow without reference to any particular point, finding or conclusion made or refused. The appellant complains of the court’s failure to make certain findings, but the statement of proceedings does not contain a concise summary of the facts which the appellant says should have been found, nor is there any reference to the transcript showing the requests for such findings. This is not a compliance with our Rules. See Rules 15(14) (d) and 15(16) (c) (§ 21-2-1, N.M.S.A.1953 [1969 Supp.]). Despite these failures, we will consider the basic questions presented.

With the exception of a particular point raised as to the intervenors, the appellant’s argument is that the judgment is not supported by substantial evidence and is contrary to law, and that the court erred in denying his requested findings and conclusions and adopting its own generally to the effect that there was no consideration received by Mrs. Brady and the Tiptons for executing the $6,400 note.

We first take up the suit on the note. At the outset, we reiterate the rules and standards governing our review to determine if there is substantial evidence, which we enumerated in our opinion in the companion case, Durrett v. Petritsis, supra. The presumptions are in favor of the findings of the court and the facts are to be viewed in the aspect most favorable to the prevailing parties. If, when so viewed, together with all reasonable inferences, the evidence supports what the court found, all contrary evidence is to be disregarded. It is the trial court’s province as the trier of facts to weigh the testimony and to say which is to be given credence and what is to be disbelieved. Martinez v. Trujillo, 81 N.M. 382, 467 P.2d 398 (1970); Rein v. Dvoracek, 79 N.M. 410, 444 P.2d 595 (Ct.App.1968). The trial court found that Petritsis was at all material times the owner of the business and the defendants were not indebted under the note and concluded that the note signed by the defendants was a sham and wholly without consideration.

Mrs. Brady testified that she and Petritsis were dating; that she did not request him to purchase the business for her; that he purchased it to provide an income for them after their marriage; that he put her and Mrs. Tipton in the store to run it for him; that he wanted her to hold herself out as the owner, which she did in a number of ways. There was also testimony that Petritsis later tried to resell the business, negotiating with prospective buyers as the owner. No bill of sale or any conveyance of the business was ever made to Mrs. Brady and the Tiptons. She further testified that Petritsis requested her to sign the note although she did not know why since he was to be responsible.

The Tiptons and Petritsis did not agree with Mrs. Brady’s testimony. The Tiptons thought they were purchasing the business or a proportionate part of it, and considered themselves liable under the note. The court specifically found that the Tip-tons’ answer admitting liability was prepared for them by Petritsis’ attorney and filed at Petritsis’ request. This fact of course went to the weight of their testimony and their credibility as to the issues raised concerning liability under the note and the ownership of the business.

The appellant did not contend in the trial court that the defendants Tipton should be held liable to him because of their answer and admissions, regardless of a judgment in favor of the other defendant and the intervenors. He did request finding No. VI which reads:

“That the Defendants, Leroy Tipton and Janie Tipton, admit, both in their verified answer on file herein and in their testimony in this cause, all the allegations contained in the second cause of action of Plaintiff’s complaint.”

But he did not request a conclusion for a judgment against defendants Tipton only, as required by Rule 52(B) (a) (6) (§ 21 — 1— 1(52) (B) (a) (6), N.M.S.A.1953). His brief objects to the trial court’s refusal to adopt 26 requested findings, which includes the requested finding No. VI, but he makes no particular point of the failure to find No. VI with argument and authorities. To present a point for our consideration, an appellant must submit argument and authorities thereon as required by Rule 15(14) (d), supra. An error claimed must be specifically stated and argued. Irwin v. Lamar, 74 N.M. 811, 399 P.2d 400 (1964).

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Bluebook (online)
474 P.2d 490, 82 N.M. 4, Counsel Stack Legal Research, https://law.counselstack.com/opinion/petritsis-v-simpier-nm-1970.