1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 CITY OF SANTA FE,
3 Plaintiff-Appellant,
4 v. NO. 28,944
5 TRAVELERS CASUALTY 6 & SURETY COMPANY,
7 Defendant-Appellee,
8 and
9 LONE MOUNTAIN 10 CONTRACTING, INC.,
11 Defendant.
12 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 13 Daniel A. Sanchez, District Judge
14 Sheehan, Sheehan & Stelzner, P.A. 15 Timothy M. Sheehan 16 Jaime L. Dawes 17 Albuquerque, NM
18 for Appellant
19 Keleher & McLeod, P.A. 20 Ann M. Conway 21 Deron B. Knoner 22 Albuquerque, NM
23 for Appellee 1 MEMORANDUM OPINION
2 CASTILLO, Judge.
3 The City of Santa Fe hired Lone Mountain Contracting, Inc. to repair a water
4 tank. As part of that arrangement Lone Mountain was required to post a performance
5 bond, which was posted by Travelers Casualty & Surety Co. At some point, the City
6 determined that the work had not been up to standard. [RP 1-5; DS 2-4] The bond
7 contains a two-year time to sue provision, [RP 7, ¶ 9] but the statute of limitations for
8 claims under bonds is six years. See NMSA 1978, § 37-1-3 (1975).
9 The City filed this declaratory judgment action seeking to establish that the
10 longer statute of limitation applied. [RP 1-5] The court granted summary judgment
11 determining that the two-year provision in the contract applies, and the City appeals.
12 Our notice proposed to affirm. The City has filed a timely memorandum in
13 opposition, and Defendant Travelers has filed a timely memorandum in support. We
14 have considered the arguments in the City’s memorandum, but we are not persuaded.
15 We affirm.
16 DISCUSSION
17 “Summary judgment is appropriate where there are no genuine issues of
18 material fact and the movant is entitled to judgment as a matter of law. . . . We review
19 these legal questions de novo.” Self v. United Parcel Serv., Inc., 1998-NMSC-046,
2 1 ¶ 6, 126 N.M. 396, 970 P.2d 582 (citation omitted).
2 A. Public Policy
3 The City argues that public policy precludes reliance on a time-to-sue provision
4 that sets a shorter time frame than the statute of limitations. The City has recognized
5 that some of our appellate cases have refused to enforce a time-to-sue provision, but
6 others have enforced such an agreement. [DS 7-8] Our notice proposed to hold that
7 this case is governed by State ex rel. Udall v. Colonial Penn Ins. Co., 112 N.M. 123,
8 812 P.2d 777 (1991). That case involved a performance bond with a three-year time-
9 to-sue provision and the State’s argument that it should not be applied because it
10 would violate public policy. The public policy advanced there, as here, was that the
11 protection of the public fisc required that the longer, statutory limitations period be
12 applied. See id. at 125-26, 812 P.2d at 779-80. Our Supreme Court rejected that
13 argument, reasoning that parties are free to contract, and having clearly expressed a
14 time-to-sue provision, will be bound by it. See id. We believe we are bound to follow
15 Udall. See Alexander v. Delgado, 84 N.M. 717, 718, 507 P.2d 778, 779 (1973)
16 (stating that this Court must follow precedents of our Supreme Court). Because we
17 have New Mexico authority on point, we are not inclined to follow the Minnesota and
18 Maryland cases cited in its docketing statement [DS 8] holding that a time limitation
19 in a bond is against public policy.
3 1 We recognize that Sandoval v. Valdez, 91 N.M. 705, 580 P.2d 131 (Ct. App.
2 1978), declined to enforce a one-year time-to-sue provision in an auto insurance
3 policy because it violated public policy. Sandoval involved a one-year limitation and
4 a public policy of critical importance: uninsured motorist coverage. See id. at 708,
5 580 P.2d at 134. By contrast, here there is a two-year time-to-sue provision, no claim
6 that the contract was one of adhesion [Tr. 13] [Note: Transcript references are to the
7 partial transcript attached to the City’s docketing statement], and the public policy
8 claim is based on potential injury to the public fisc. That, however, has already been
9 rejected as a sufficiently weighty interest to create a public policy exception. See
10 Udall, 112 N.M. at 125-26, 812 P.2d at 779-80. The City contends that this case is
11 more like Sandoval, [MIO 3, 9-10], but we are not persuaded. Sandoval deals with
12 a short limitations period in an automobile insurance contract made between parties
13 with unequal bargaining power. By contrast, Udall deals with whether a
14 governmental entity is bound by a limitations period in a performance bond. Udall
15 is more on point.
16 The City argued below, and argues in its memorandum in opposition, that it did
17 not “execute or enter into the contract containing the two-year limitations period,” and
18 “is not a party to the performance bond.” [RP 146, MIO 5-6] We disagree. The City
19 entered into the contract with the contractor, required a bond, and the bond itself states
4 1 that Travelers and the contractor “bind themselves” to the City, “for the performance
2 of the Construction Contract, which is incorporated herein by reference.” [RP 150,
3 ¶ 1] The bond was required by statute, and the statute requiring a bond for public
4 projects states that the bond shall be delivered to the state agency or local public body
5 and “shall become binding on the parties upon the execution of the contract.” See
6 NMSA 1978, § 13-4-18(A) (1987). Consequently, under the language of the contract,
7 and under the relevant statute, the City is a party to and is bound by the bond.
8 In its memorandum, the City argues that this case is distinguishable from Udall
9 because the City did not negotiate the terms of the bond. [MIO 5] We are not
10 persuaded. Udall considered the same argument and rejected it. See Udall, 112 N.M.
11 at 127, 812 P.2d at 781 (“Even if, as the state claims, it did not negotiate actively over
12 the [bond] provisions, the limitations on the right to sue were part of the agreement
13 and represented part of the consideration.”). Therefore, whether the City actively
14 negotiated the terms of the bond is not the critical fact. In our view, the dispositive
15 facts are that the City had the opportunity to negotiate and ultimately entered into the
16 contract. The City does not dispute that it had the opportunity to review the bond and
17 that it expressed no disagreement with it. The comments of the City’s counsel even
18 suggest that it was reviewed by someone at the City who just did not catch the shorter
19 limitations period (or perhaps that the contract and bond language was not reviewed
5 1 at all). [Tr. 13: “The City of Santa Fe is made up of a lot of people who do the best
2 every day to perform city services . . . . ”] Because the City had the opportunity to
3 review the bond and ultimately entered into the contract, which included the bond, the
4 City is bound by the terms of the bond.
5 Additionally, our notice proposed to hold that, since the City claims that it is
6 entitled to recover against the bond, it is incongruous to argue that it is not a party to
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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 CITY OF SANTA FE,
3 Plaintiff-Appellant,
4 v. NO. 28,944
5 TRAVELERS CASUALTY 6 & SURETY COMPANY,
7 Defendant-Appellee,
8 and
9 LONE MOUNTAIN 10 CONTRACTING, INC.,
11 Defendant.
12 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 13 Daniel A. Sanchez, District Judge
14 Sheehan, Sheehan & Stelzner, P.A. 15 Timothy M. Sheehan 16 Jaime L. Dawes 17 Albuquerque, NM
18 for Appellant
19 Keleher & McLeod, P.A. 20 Ann M. Conway 21 Deron B. Knoner 22 Albuquerque, NM
23 for Appellee 1 MEMORANDUM OPINION
2 CASTILLO, Judge.
3 The City of Santa Fe hired Lone Mountain Contracting, Inc. to repair a water
4 tank. As part of that arrangement Lone Mountain was required to post a performance
5 bond, which was posted by Travelers Casualty & Surety Co. At some point, the City
6 determined that the work had not been up to standard. [RP 1-5; DS 2-4] The bond
7 contains a two-year time to sue provision, [RP 7, ¶ 9] but the statute of limitations for
8 claims under bonds is six years. See NMSA 1978, § 37-1-3 (1975).
9 The City filed this declaratory judgment action seeking to establish that the
10 longer statute of limitation applied. [RP 1-5] The court granted summary judgment
11 determining that the two-year provision in the contract applies, and the City appeals.
12 Our notice proposed to affirm. The City has filed a timely memorandum in
13 opposition, and Defendant Travelers has filed a timely memorandum in support. We
14 have considered the arguments in the City’s memorandum, but we are not persuaded.
15 We affirm.
16 DISCUSSION
17 “Summary judgment is appropriate where there are no genuine issues of
18 material fact and the movant is entitled to judgment as a matter of law. . . . We review
19 these legal questions de novo.” Self v. United Parcel Serv., Inc., 1998-NMSC-046,
2 1 ¶ 6, 126 N.M. 396, 970 P.2d 582 (citation omitted).
2 A. Public Policy
3 The City argues that public policy precludes reliance on a time-to-sue provision
4 that sets a shorter time frame than the statute of limitations. The City has recognized
5 that some of our appellate cases have refused to enforce a time-to-sue provision, but
6 others have enforced such an agreement. [DS 7-8] Our notice proposed to hold that
7 this case is governed by State ex rel. Udall v. Colonial Penn Ins. Co., 112 N.M. 123,
8 812 P.2d 777 (1991). That case involved a performance bond with a three-year time-
9 to-sue provision and the State’s argument that it should not be applied because it
10 would violate public policy. The public policy advanced there, as here, was that the
11 protection of the public fisc required that the longer, statutory limitations period be
12 applied. See id. at 125-26, 812 P.2d at 779-80. Our Supreme Court rejected that
13 argument, reasoning that parties are free to contract, and having clearly expressed a
14 time-to-sue provision, will be bound by it. See id. We believe we are bound to follow
15 Udall. See Alexander v. Delgado, 84 N.M. 717, 718, 507 P.2d 778, 779 (1973)
16 (stating that this Court must follow precedents of our Supreme Court). Because we
17 have New Mexico authority on point, we are not inclined to follow the Minnesota and
18 Maryland cases cited in its docketing statement [DS 8] holding that a time limitation
19 in a bond is against public policy.
3 1 We recognize that Sandoval v. Valdez, 91 N.M. 705, 580 P.2d 131 (Ct. App.
2 1978), declined to enforce a one-year time-to-sue provision in an auto insurance
3 policy because it violated public policy. Sandoval involved a one-year limitation and
4 a public policy of critical importance: uninsured motorist coverage. See id. at 708,
5 580 P.2d at 134. By contrast, here there is a two-year time-to-sue provision, no claim
6 that the contract was one of adhesion [Tr. 13] [Note: Transcript references are to the
7 partial transcript attached to the City’s docketing statement], and the public policy
8 claim is based on potential injury to the public fisc. That, however, has already been
9 rejected as a sufficiently weighty interest to create a public policy exception. See
10 Udall, 112 N.M. at 125-26, 812 P.2d at 779-80. The City contends that this case is
11 more like Sandoval, [MIO 3, 9-10], but we are not persuaded. Sandoval deals with
12 a short limitations period in an automobile insurance contract made between parties
13 with unequal bargaining power. By contrast, Udall deals with whether a
14 governmental entity is bound by a limitations period in a performance bond. Udall
15 is more on point.
16 The City argued below, and argues in its memorandum in opposition, that it did
17 not “execute or enter into the contract containing the two-year limitations period,” and
18 “is not a party to the performance bond.” [RP 146, MIO 5-6] We disagree. The City
19 entered into the contract with the contractor, required a bond, and the bond itself states
4 1 that Travelers and the contractor “bind themselves” to the City, “for the performance
2 of the Construction Contract, which is incorporated herein by reference.” [RP 150,
3 ¶ 1] The bond was required by statute, and the statute requiring a bond for public
4 projects states that the bond shall be delivered to the state agency or local public body
5 and “shall become binding on the parties upon the execution of the contract.” See
6 NMSA 1978, § 13-4-18(A) (1987). Consequently, under the language of the contract,
7 and under the relevant statute, the City is a party to and is bound by the bond.
8 In its memorandum, the City argues that this case is distinguishable from Udall
9 because the City did not negotiate the terms of the bond. [MIO 5] We are not
10 persuaded. Udall considered the same argument and rejected it. See Udall, 112 N.M.
11 at 127, 812 P.2d at 781 (“Even if, as the state claims, it did not negotiate actively over
12 the [bond] provisions, the limitations on the right to sue were part of the agreement
13 and represented part of the consideration.”). Therefore, whether the City actively
14 negotiated the terms of the bond is not the critical fact. In our view, the dispositive
15 facts are that the City had the opportunity to negotiate and ultimately entered into the
16 contract. The City does not dispute that it had the opportunity to review the bond and
17 that it expressed no disagreement with it. The comments of the City’s counsel even
18 suggest that it was reviewed by someone at the City who just did not catch the shorter
19 limitations period (or perhaps that the contract and bond language was not reviewed
5 1 at all). [Tr. 13: “The City of Santa Fe is made up of a lot of people who do the best
2 every day to perform city services . . . . ”] Because the City had the opportunity to
3 review the bond and ultimately entered into the contract, which included the bond, the
4 City is bound by the terms of the bond.
5 Additionally, our notice proposed to hold that, since the City claims that it is
6 entitled to recover against the bond, it is incongruous to argue that it is not a party to
7 it and is not bound in any way by the bond. In its memorandum, the City argues that
8 it is not incongruous. It argues that it is a third-party beneficiary and can enforce bond
9 provisions as such without necessarily being a party to the bond. [MIO 6] We
10 disagree. In support of this argument the City cites case law about third-party
11 beneficiaries in general. However, these cases do not involve a public entity as a
12 third-party beneficiary to a bond. More importantly, as we have discussed, the City
13 was bound as a party by the terms of bond. The City is not a third-party beneficiary.
14 Finally, the City argues that statutory bonds are for the benefit and protection
15 of the public and that the bond obligations are strictly construed in favor of the
16 beneficiaries of the bonds. [DS 7] We accept that as a general proposition, but neither
17 the general purpose nor the rule requiring construction in favor of the beneficiary
18 overrides Udall, or the plain language of the parties’ contract.
19 For all of these reasons, we hold that the bond is part of the City’s construction
6 1 contract, and the City is bound by that contract. In our view, the Supreme Court’s
2 opinion in Udall is dispositive. We believe the City’s arguments that Udall is
3 distinguishable are more appropriately addressed to our Supreme Court. See
4 Alexander, 84 N.M. at 718, 507 P.2d at 779 (stating that this Court must follow
5 precedents of our Supreme Court). We, however, are not persuaded by the City’s
6 attempt to distinguish Udall.
7 B. Immaterial Factual Issues
8 The City also contends that the court’s comments, made during the summary
9 judgment hearing, indicate that there are disputed issues of material fact and,
10 therefore, summary judgment is inappropriate. [DS 6, 8-9; MIO 10-15] These
11 comments consist of the court asking if the City had to approve the bid package
12 including the bond form [Tr. 8] and counsel for the City asserting that he did not know
13 if the City had reviewed an executed copy of the bond, or he did not think that the City
14 had [Tr. 12, MIO 11], a question about the premium paid [Tr. 13], and the court’s
15 ruling. [Tr. 20-21]
16 These comments do not create a genuine issue of material fact. These
17 comments were general questions about the bid process or indicated the court’s
18 thought process in resolving the case. The lone comment from the City’s counsel
19 about whether the “executed” copy of the bond was reviewed by someone at the City
7 1 does not raise an issue of fact because the speaker does not appear to know what
2 happened or to have any personal knowledge. Moreover, as we have discussed, the
3 point is not whether the bond was reviewed, but whether the City had the opportunity
4 to review the contract and whether the City was bound by the contract. As we have
5 discussed under Udall, once the contract was executed and the bond was delivered,
6 the City was bound by the bond’s two-year limitation on lawsuits.
7 The asserted factual issues surrounding the making of the contract, even if
8 somewhat disputed or undeveloped, were not material. See Oschwald v. Christie, 95
9 N.M. 251, 253, 620 P.2d 1276, 1278 (1980) (stating that it is not enough that there are
10 factual issues because issues must be material; immaterial facts create no triable
11 issue). The facts that the City attempts to create are nothing more than gloss on the
12 obvious facts that the City made and signed the contract. Beyond that, the facts
13 underlying that process or decision, including whether someone from the City was not
14 as careful in reviewing the contract as he or she should have been, do not appear to be
15 relevant or material. See id.
16 In its memorandum the City disagrees with this reasoning. It argues that it is
17 not an “obvious fact” that the City “made and signed the contract.” [MIO 13] We are
18 not persuaded. Again, the City relies on the contract and bond when it is to its
19 advantage—and it brought this declaratory action so that it could do so. The City’s
8 1 contract with the contractor required a bond by law, the City had the opportunity to
2 review the bond, and the City obtained its bond. The contract was made and the
3 project was completed. Contrary to the City’s argument, the City entered into the
4 contract. Therefore, the facts underlying the process leading up to the execution of
5 the contract, on which the City now relies in an attempt to create a disputed issue, do
6 not establish a genuine issue of material fact.
7 For all of these reasons, we affirm.
8 IT IS SO ORDERED.
9 ________________________________ 10 CELIA FOY CASTILLO, Judge
11 WE CONCUR:
12 ________________________________ 13 JONATHAN B. SUTIN, Chief Judge
14 ________________________________ 15 JAMES J. WECHSLER, Judge