Tres Ladrones, Inc. v. Fitch

1999 NMCA 076, 982 P.2d 488, 127 N.M. 437
CourtNew Mexico Court of Appeals
DecidedMarch 31, 1999
Docket19,444
StatusPublished
Cited by11 cases

This text of 1999 NMCA 076 (Tres Ladrones, Inc. v. Fitch) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tres Ladrones, Inc. v. Fitch, 1999 NMCA 076, 982 P.2d 488, 127 N.M. 437 (N.M. Ct. App. 1999).

Opinion

OPINION

DONNELLY, Judge.

{1} Plaintiff Tres Ladrones, Inc., and Defendants Albert Zimmerly and Thomas G. Fitch each pursue appeals from a decree entered in a quiet title action. Plaintiff raises eight issues on appeal, which we consolidate and discuss as follows: (1) whether the judgment quieting title in Zimmerly and Fitch was final, (2) whether alleged errors of the trial court require reversal, and (3) whether the trial court erred in determining that Fitch’s mortgage was the first and only lien against the subject property. The cross appeal of Zimmerly and Fitch asserts that the trial court erred in ruling that the decree quieting title was subject to the further determination of the lien rights of other parties. We affirm in part and reverse in part.

FACTS AND PROCEDURAL POSTURE

{2} Plaintiff filed suit to quiet title to a number of tracts of land located in Socorro County, New Mexico, on April 28, 1994. Plaintiffs complaint named as defendants various individuals that it claimed had asserted adverse claims to the realty in question. Defendant First National Bank of Belen, now Norwest Bank Belen, N.A. (the Bank), filed an entry of appearance but faded to file an answer. In addition to the answers filed by Zimmerly and Fitch, answers contesting Plaintiffs claims were filed by Defendants Karen A. Abraham, Larry P. Abraham, and Sandra K. Dhieux; Sears, Roebuck and Company (Sears); Joe C. Olguin; and the Taxation and Revenue Department of the State of New Mexico. The Taxation and Revenue Department also filed a counterclaim and a cross-claim asserting a tax lien against certain of the realty involved in the quiet title action. Sears filed a cross-claim against “Plaintiff, and against all other Defendants” in the action.

{3} Plaintiff responded to Sears’s counterclaim and denied that the lien asserted by Sears applied to the subject property. Neither Plaintiff nor any of the Defendants filed a response to the Taxation and Revenue Department’s counterclaim and cross-claim that asserted a judgment lien against the property involved in this lawsuit. The Abrahams and Dhieux subsequently filed disclaimers to any of the property involved in this action.

{4} Trial was set for September 5, 1996, and notice of trial was served by the trial court upon counsel for Plaintiff, and Defendants Zimmerly, Fitch, Sears, the Taxation and Revenue Department, the Bank, and 01-guin. On September 5, 1996, Plaintiff, Zimmerly, Fitch, and the Bank appeared. No other party appeared at the hearing. At the trial, Plaintiff acknowledged Olguin’s superi- or title in the property occupied by Olguin and stated that it did not seek to quiet title to that portion of the property in question.

{5} At the commencement of trial, the Bank asserted that it had a judgment lien against Zimmerly. The trial court asked counsel for Zimmerly about the asserted lien. Zimmerly’s counsel responded: “I don’t believe that I am really prepared to say much about the judgment. It is of record. Apparently it indicates it was recorded in Socorro County in 1991, so it speaks for itself.” The trial judge stated that “if that is the case, [the Bank] may be excused.” Counsel for the Bank requested “that whatever gets decided here that it be circulated to me.” The trial judge responded “certainly.” The trial then continued. At the conclusion of the one-day bench trial, the trial court took the matter under advisement. Plaintiff, Zimmerly, and Fitch each filed requested findings of fact and conclusions of law. For reasons which are unexplained in the record, the trial court entered its findings of fact and conclusions of law on February 17, 1998, over one year and five months following the trial.

{6} The trial court’s decision recited, inter alia, that:

2. Defendant Fitch is the holder of a real estate mortgage recorded in book 436, pages 1012-1015, of the records of the Socorro County Clerk on the real estate described in Plaintiffs Complaint.
3. The real estate mortgage held by Defendant Fitch is a first lien on the real estate described in the Complaint.
4. By a contract dated September 6, 1969 Albert Zimmerly did agree with one G.A. Chumbley and Yvonne Chumbley to purchase the real estate described in Plaintiffs Complaint from [the] Chumbleys.
5.That [the] real estate contract was placed in escrow with Southwest Escrow Company----
7. That on or about December 19,1990 the real estate contract between Chumbley and Zimmerly was paid in full....
9. That County Abstract and Title Company and Patricia Y. Woods did not deliver the Deeds [held in escrow] to Zimmerly.
13. That Plaintiff has failed to prove possession, good faith, or the payment of an adequate consideration as required elements of [its] action to quite [sic] title.
14. That Zimmerly has proved that absent the improper actions of Chumbley and County Abstract and Title Company he would have. received ... the deeds from escrow transferring to him the real estate described in the Complaint.

{7} Counsel were unable to agree on the form of the judgment to be entered, and a hearing on the form of the judgment was scheduled for April 16,1998. At the hearing, counsel for Zimmerly presented a form of judgment approved by Zimmerly and Fitch. No other form of judgment was presented for consideration. Counsel for the Bank appeared at the hearing and objected to the form of judgment because it did not recognize the judgment lien placed of record by his client.

{8} After hearing argument, the trial court entered a quiet title judgment on April 20,1998, providing, in pertinent part:

1. That Albert Zimmerly, Defendant, is the owner in fee simple and in possession of the real estate described in Exhibit “A” attached hereto free from any claim by Plaintiff or anyone claiming by, through or under them; and that said Plaintiff and everyone claiming by, through or under it be and hereby are barred and forever es-topped from having or claiming a lien upon or any right, title or interest in or to said real estate adverse to the estate of Defendant Albert Zimmerly.
2. That the title of Albert Zimmerly in fee simple in and to said real estate hereby is forever quieted and set at rest subject only to the interest of Defendant Thomas G. Fitch hereinafter decreed.
3. That Defendant Thomas G. Fitch holds a first lien on the real estate described by virtue of a certain real estate mortgage recorded in the office of the Clerk of Socorro County, New Mexico, at Book 436, Pages 1012-1015.
4. That tbe escrowed deeds from Chumbley to Zimmerly ... are Ordered [to be] delivered to Zimmerly forthwith.
5. That Plaintiffs Complaint is dismissed with prejudice.

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Bluebook (online)
1999 NMCA 076, 982 P.2d 488, 127 N.M. 437, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tres-ladrones-inc-v-fitch-nmctapp-1999.