Segal v. Goodman

851 P.2d 471, 115 N.M. 349
CourtNew Mexico Supreme Court
DecidedMarch 31, 1993
Docket20505
StatusPublished
Cited by14 cases

This text of 851 P.2d 471 (Segal v. Goodman) 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
Segal v. Goodman, 851 P.2d 471, 115 N.M. 349 (N.M. 1993).

Opinion

OPINION

MONTGOMERY, Justice.

Defendant-appellant Len Goodman appeals from a judgment awarded to plaintiff-appellee Nora Segal, holding that Goodman was liable for damages suffered by Segal as a result of an investment in an unregistered security. Segal cross-appeals from the court’s order granting Goodman a stay of execution of the judgment. We affirm the judgment on the ground that substantial evidence supports the trial court’s finding that Goodman was a salesman or agent of a seller of an unregistered security, affirm the court’s stay of execution on the ground that the court did not abuse its discretion in ordering it, and remand for reconsideration of the duration of the stay.

I.

In 1984 Segal sold an apartment building she owned in New York. In the late summer or early fall of that year, Segal discussed with her friend Gerald Goodman, Len Goodman’s father, her desire to shelter the income, for tax purposes, from the sale of the building. Shortly thereafter, Gerald Goodman introduced Segal and Goodman in the hope that Goodman could advise Segal on how to reduce her tax burden.

At Segal’s behest, but without any promise of compensation or remuneration, Goodman acquired materials on various tax shelters, which he presented to Segal. When Segal expressed interest in a brochure shown to her by Goodman for a particular tax shelter, the Schultz Individual Cattle Feeding Program (“the Program”) offered by Schultz Cattle Company, Incorporated (“SCCI”), Goodman contacted SCCI for further information. He then met with Segal and gave her information on what the representatives of SCCI had said about the Program and how it could be used as a tax deferral plan. Segal eventually decided to invest in the Program and in December 1984 completed all the documents necessary for her investment.

As a participant in the Program, Segal entered into a contract with the Schultz Feedyard and SCCI for purchasing, boarding, and feeding five hundred head of cattle, and another contract requiring SCCI to provide consulting services on future purchases and sale of cattle and on “hedging” practices appropriate in the cattle feeding industry. Segal agreed to pay SCCI for consulting services at the rate of $25.00 per head of cattle purchased, thereby incurring expenses in 1984 that could be used to offset her tax liability in that year. Funding for the Program was supplied by Se-gal’s $20,000 initial payment and a revolving recourse note in the amount of $400,-000 arranged by SCCI and funded by the Anadarko Bank and Trust Company (“Anadarko”) of Anadarko, Oklahoma. The recourse note was collateralized by a $70,000 letter of credit from Banquest/First National Bank of Santa Fe, New Mexico (“Banquest”).

Goodman introduced Segal to commercial lending officers at Banquest so that she could obtain the letter of credit necessary for her investment in the Program. Goodman helped Segal fill out a financial statement to present to the Banquest officers and then returned with Segal to Banquest a second time to present information he had acquired from SCCI explaining exactly what was needed to effectuate the investment. At the closing near the end of December 1984, Banquest requested that Se-gal pledge, as collateral for the letter of credit, securities held by her stockbroker in Florida. When the broker expressed reluctance to provide the securities, Goodman interceded and explained the purpose for pledging the securities. The broker then acquiesced in the transaction.

Goodman was Segal’s sole contact with SCCI during the course of negotiations in November and December 1984. During that time, Goodman had between four and six phone conversations with SCCI representatives. During the second of these conversations, Goodman was told that he would receive $5.00 per head of cattle sold for any referrals to SCCI’s consulting service. Before the closing of Segal’s investment in the Program, Goodman entered into a written agreement with SCCI confirming that he would receive a referral fee of $5.00 per head of cattle sold to any investor he referred to SCCI. A few months after Segal contracted to invest in the Program, SCCI paid Goodman. $2,500 for the sale to Segal of her interest in five hundred cattle. Goodman testified at trial that he had been concerned that if he were paid by SCCI he would owe them an obligation and that he therefore had encouraged Segal to pay him an hourly fee so that he could advise her “in good conscience.” Segal, however, never provided Goodman any compensation for his services.

The price of slaughter-weight cattle dropped precipitously in 1985, and Segal lost her $20,000 initial investment plus an additional $53,078.43 forwarded to Schultz Feedyard by Anadarko for the loss resulting from the sale of cattle in the Program.

On September 22, 1987, Segal commenced this action against SCCI, Schultz Corporation, Schultz Feedyard, their officers and directors (collectively, “the Schultz defendants”), and Goodman. The complaint alleged violations of the Securities Act of New Mexico, NMSA 1978, §§ 58-13-1 to -46 (Repl.Pamp.1984, repealed by N.M.Laws 1986, ch. 7, §§ 1 to 56, effective July 1, 1986) (“the Securities Act”), violations of the Unfair Practices Act, NMSA 1978, §§ 57-12-1 to -21 (Repl.Pamp.1984), common law fraud, and intentional and negligent misrepresentation. Segal moved for partial summary judgment against all defendants in March 1991, requesting an adjudication that her interest in the Program was a security under the Securities Act, that the sale of the security to her violated the Securities Act, and that Segal was entitled to rescind her contract and recover damages. Partial summary judgment, was entered on these grounds in July 1991 against all defendants except Goodman.

The remaining counts against the Schultz defendants, the damages to which Segal might be entitled, and all counts against Goodman were tried to the court in October 1991. At the conclusion of the trial, the court found that Goodman had acted as a salesman and agent for a seller of an unregistered security and as an unregistered investment adviser in violation of Sections 58-13-42 and 58-13-23 of the Securities Act. The court also found that Goodman had been negligent and that his negligence was a proximate cause of the damage caused to Segal. In the court’s judgment, entered December 4, 1991, Segal was awarded damages against Goodman for $73,078.43, plus prejudgment interest, costs, and attorney’s fees. Judgment was also entered against the Schultz defendants for violations of the Securities Act, the Unfair Practices Act, common law fraud, and misrepresentation in the amount of $219,235.39 (representing treble damages under Section 57-12-10(B) of the Unfair Practices Act for willful participation in unconscionable trade practices), plus prejudgment interest, costs, and attorney’s fees.

After announcing its findings from the bench, the court requested the parties to file memoranda on the court’s power to stay execution of the judgment. On December 10, 1991, Goodman filed a motion for new trial, for relief from judgment, to alter or amend the judgment, and for a stay of enforcement of the judgment. A hearing was held on these motions on January 7,1992. The trial court issued an order denying the motions for a new trial and for relief from judgment on January 22, but issued a second order on that date granting Goodman’s motion for a stay of enforcement.

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Bluebook (online)
851 P.2d 471, 115 N.M. 349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/segal-v-goodman-nm-1993.