Roselli v. Rio Communities Service Station, Inc.

787 P.2d 428, 109 N.M. 509, 1990 WL 12904
CourtNew Mexico Supreme Court
DecidedFebruary 14, 1990
Docket17965
StatusPublished
Cited by50 cases

This text of 787 P.2d 428 (Roselli v. Rio Communities Service Station, Inc.) 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
Roselli v. Rio Communities Service Station, Inc., 787 P.2d 428, 109 N.M. 509, 1990 WL 12904 (N.M. 1990).

Opinion

OPINION

WILSON, Justice.

Rio Communities Service Station, Inc. (Rio), Vito Roselli’s Estate (Estate) and Vincent R. Roselli (Vincent), defendants-appellants, appeal the trial court’s order and partial final summary judgment in favor of Gemma O. Roselli (Gemma), plaintiff-appellee. We reverse and remand for a trial on the merits.

FACTS

In 1974 Vito Roselli (Vito) married Gem-ma. At that time, Vito separately owned all Rio’s stock and the land beneath Rio, and was Rio’s president. Gemma separately owned a personal residence, household furnishings, and a vehicle. The couple later transmuted their separate property into community property, and Gemma became an officer and director of Rio. Vincent, Vito’s son from a prior marriage and also a Rio officer and director, began working at Rio in July 1973. He claims that in 1976, Vito orally promised him forty-nine percent of Rio’s stock if he worked at Rio for five years. Vincent completed five years’ work at Rio in 1981 and later obtained blank stock certificates, for forty-nine percent of Rio’s stock, which Vito did not sign. The parties dispute Vito’s intent to transfer Rio stock to Vincent. Vito fixed compensation amounts for himself and Vincent, and used Rio funds for personal expenses. Vincent and Gemma knew and approved of Vito’s use of Rio funds. On June 18, 1981, Vito and Gemma bought two Northern Life Insurance Company (Northern) policies, total-ling $30,351.39, naming Gemma as beneficiary. Vito was the policies’ owner and insured, and Rio paid the premiums. In March 1983 Vito named Vincent beneficiary of these policies, without Gemma’s knowledge. Vito also directed Northern to mail policy information to his office, rather than his home. In May 1983 Vito began an extra-marital affair, which Gemma discovered at trial. Vincent alleges that Gemma also had an extra-marital affair.

On September 22, 1983, Vito and Gemma executed a warranty deed conveying the land to Rio. Gemma claims she executed the deed in exchange for Vito’s oral promise to leave her all his property at his death. She also claims Vito did not intend to transfer the land’s title to Rio at that time. The couple kept the deed at home. A few years before his death, Vito gave Vincent the deed and told him to take it home. Vincent kept the deed in his home floor safe, along with personal papers and some corporate insurance papers. Vincent never looked at the deed, and Vito never discussed it with him.

On September 27, 1983, Vito executed a will leaving Gemma all his property, except for $100 bequests to his children. Upon execution, Vito told a testamentary witness that he signed the will only to satisfy Gem-ma and he intended to make a new will leaving her nothing. That same day Vito bid his accountant to transfer forty-nine percent of Rio’s stock to Vincent, claiming the board of directors unanimously approved the transfer. Gemma did not approve the transaction. Corporate books and subsequent tax returns show Vincent owned forty-nine percent of Rio’s stock. In May 1984 Vito gave Vincent title to a Chevy El Camino vehicle, but kept possession. Vincent claims Vito intended him to have the vehicle at Vito’s death.

On June 21, 1984, Vito executed a new will leaving twenty-six percent of his Rio stock to Vincent, $100 bequests to his other children, a ring to his brother, and the rest of his estate to Gemma. Also on June 21, 1984, Vito bought a Republic National Life Insurance Company (Republic) policy, total-ling $20,057, naming Gemma as beneficiary. Rio also paid this policy’s premiums. At some point, the parties discussed an agreement in which Gemma would receive all insurance policy proceeds upon Vito’s death, and Vincent would receive all interests in Rio. The parties dispute whether they agreed to this plan. In August 1984 Vito and Gemma renewed their marriage vows.

A few days before his death, Vito retrieved the deed from Vincent and took it to a meeting with his attorney on May 19, 1986. At that meeting, Vito told his attorney that Gemma had renounced all interest in the land. On May 21, 1986, Vito died. That same day, Vito’s attorney wrote advising him to record the deed. His attorney recorded the deed on May 25, 1986, six days after Vito’s death. At Vito’s death the Northern policies paid $5,893.09 in Rio debts. The rest of the proceeds, $24,-458.30, were paid jointly to Gemma and Vincent and deposited in a certificate of deposit pending appeal. Gemma received the Republic policy proceeds at Vito’s death.

On October 20, 1986, Gemma filed an eight-count complaint against the defendants seeking: (1) a declaratory judgment entitling Gemma to one-half the Northern policies’ proceeds and seventy-four percent of Rio’s stock; (2) quiet title to the land or, if the deed was valid, a lien on Rio’s stock equal to her community property interest in the land; (3) remedies for fraud and breach of contract not to revoke the 1983 will; (4) reimbursement of $10,000 insurance proceeds paid on Rio’s behalf; and (5) costs and attorney fees. Gemma twice amended her complaint, additionally alleging slander of title and a community property interest in Rio stock registered in Vincent’s name.

The defendants denied Gemma’s claims and counterclaimed for declaratory judgment that: (1) Rio owns the land; (2) Vincent owns seventy-five percent of Rio’s stock, or may recover forty-nine percent of Rio’s stock for breach of contract; (3) Vincent and Rio are each entitled to one-half the insurance policies’ proceeds; (4) Vincent and Rio are each entitled to one-half the value of Rio funds Vito used for personal expenses, plus a lien on the couple’s community property for that amount; (5) Vincent is entitled to the 1979 El Camino vehicle, its reasonable rental value and damages; and (6) defendants are entitled to costs and attorney fees. Gemma denied these counterclaims.

On May 2, 1988, the defendants moved for judgment on the pleadings or partial summary judgment as to Gemma’s claims of slander of title, quiet title, fraud, and breach of contract to make or not revoke a will. On June 3, 1988, Gemma moved for summary judgment as to these claims plus the deed’s invalidity or Gemma’s lien against the land, entitlement to the insurance proceeds, reimbursement of proceeds paid on Rio’s behalf, and dismissal of defendants’ claims for reimbursement and title to the vehicle. On August 2, 1988, the trial court entered a partial final summary judgment in Gemma’s favor as to quiet title to the land, entitlement to insurance policy proceeds, and ownership of the vehicle. The trial court dismissed with prejudice defendants’ claims for vehicle ownership and reimbursement. The trial court found genuine issues of material fact existed as to slander of title and Rio’s stock ownership, and denied summary judgment on those claims. The defendants appeal the trial court’s judgment, which was stayed pending appeal.

ISSUES

On appeal, the defendants claim: (1) the deed was delivered and had consideration; (2) entitlement to the Northern and Republic policies’ proceeds; and (3) the trial court erred by granting partial final summary judgment for Gemma. Defendants abandoned their claim of vehicle ownership, listed in the docketing statement, by failing to brief the issue on appeal. State v. Doe, 93 N.M. 621, 623, 603 P.2d 731, 733 (Ct.App.1979).

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Cite This Page — Counsel Stack

Bluebook (online)
787 P.2d 428, 109 N.M. 509, 1990 WL 12904, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roselli-v-rio-communities-service-station-inc-nm-1990.