{ "id": 1586352, "name": "NEW MEXICO TIRE & BATTERY CO., INC. and Yearwood and House Tire and Battery Co., Inc., Plaintiffs-Appellees, v. OLE TIRES, INC., Defendant-Appellant", "name_abbreviation": "New Mexico Tire & Battery Co. v. Ole Tires, Inc.", "decision_date": "1984-06-06", "docket_number": "No. 15282", "first_page": "357", "last_page": "360", "citations": [ { "type": "official", "cite": "101 N.M. 357" }, { "type": "parallel", "cite": "683 P.2d 39" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "85 N.M. 5", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2771564, 2771395, 2769044 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/85/0005-03", "/nm/85/0005-01", "/nm/85/0005-02" ] }, { "cite": "85 N.M. 27", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2769144 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/85/0027-01" ] }, { "cite": "84 N.M. 558", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2769107 ], "weight": 3, "year": 1973, "pin_cites": [ { "page": "1235" } ], "opinion_index": 0, "case_paths": [ "/nm/84/0558-01" ] }, { "cite": "97 N.M. 173", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555207 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/nm/97/0173-01" ] }, { "cite": "76 N.M. 194", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8501205 ], "weight": 5, "year": 1966, "pin_cites": [ { "page": "195" }, { "page": "475" } ], "opinion_index": 0, "case_paths": [ "/nm/76/0194-01" ] }, { "cite": "93 P. 715", "category": "reporters:state_regional", "reporter": "P.", "year": 1908, "pin_cites": [ { "page": "716" } ], "opinion_index": 0 }, { "cite": "14 N.M. 334", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 204498 ], "year": 1908, "pin_cites": [ { "page": "339" } ], "opinion_index": 0, "case_paths": [ "/nm/14/0334-01" ] } ], "analysis": { "cardinality": 655, "char_count": 12752, "ocr_confidence": 0.77, "pagerank": { "raw": 4.565170110192638e-08, "percentile": 0.2857626062368887 }, "sha256": "21734190c6699f1964db4d8d9e0420d6eb72d988e6cd813d5fc8ee69d7b252dc", "simhash": "1:f25b3eb6d2fd0cba", "word_count": 2073 }, "last_updated": "2023-07-14T22:42:52.435207+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "FEDERICI, C.J., and RIORDAN, J., concur." ], "parties": [ "NEW MEXICO TIRE & BATTERY CO., INC. and Yearwood and House Tire and Battery Co., Inc., Plaintiffs-Appellees, v. OLE TIRES, INC., Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWALTERS, Justice.\nFrom a motion granting summary judgment to plaintiffs on two open account debts, defendant appeals.\nPlaintiffs\u2019 claims were joined in a four-count single complaint, the separate, claims of each plaintiff being set forth in separate counts. Attached to the complaint were several exhibits. Exhibit A was a sworn statement of James F. House, president of plaintiff New Mexico Tire and Battery Co., Inc. (Tire Company), alleging the balance of Ole Tires, Inc.\u2019s (Ole) account and attaching copies of the ledger cards showing $6,897.31 due from Ole as of April 30,1983. Exhibit B was the affidavit of F.E. Year-wood, president of plaintiff Yearwood and House, Inc. (Yearwood), attached to which were billing statements showing a balance of $64,773.18 due as of April 1983. Exhibit C was a photocopy of a $16,000 check payable to Yearwood from Ole, stamped \u201cinsufficient funds.\u201d Exhibit D was a copy of a certified letter from counsel for Year-wood to Ole, advising Ole of the dishonored check, the criminal nature of knowingly issuing an insufficient check and failing to pay it after notice of dishonor, and a demand for payment.\nOle filed an answer and counterclaim to the complaint of plaintiffs in which it denied the debts alleged, and affirmatively alleged that when the $16,000 check was returned to Yearwood, the parties agreed to add the $16,000 \u201cback to the open account and future payments were to be applied to the cancellation of the total indebtedness, including the amount of that check.\u201d In its counterclaim Ole alleged that Yearwood acted maliciously in \u201cthreatening criminal sanctions,\u201d thus damaging Ole\u2019s reputation in the amount of $20,000. Ole asked $5,000 in punitive damages for Yearwood\u2019s \u201cwilfull and reckless disregard\u201d of the parties\u2019 agreement that the $16,000 would be charged back to Ole\u2019s account.\nOn July 11, 1983, the two plaintiffs filed a joint motion for summary judgment unaccompanied by any documents or affidavits, and a motion for dismissal of Ole\u2019s counterclaim. Ole\u2019s Response to Motion for Summary Judgment, filed on July 22nd, did not controvert the summary judgment motion with affidavits or other supplementary materials. See NMSA 1978, Civ.P.R. 56(c) (Repl.Pamp.1980). The Response noted that plaintiffs had not complied with the local rule requiring a \u201cshort, concise statement of the grounds in support\u201d of a summary judgment motion; that the amount of the debts, the method of payment, and other material facts were disputed by the pleadings; and that plaintiffs\u2019 motion was not supported by interrogatory answers, depositions or affidavits. The Response was not verified.\nThe trial court granted the motion and entered summary judgment against Ole in a total amount of $71,670.49, together with interest of 18% per annum from April 31, 1983, until paid, and Ole appeals. The judgment was for the combined amount pled by both plaintiffs.\nOle contends that issues of material fact existed which precluded summary judgment; plaintiffs claim that they made a prima facie case pursuant to New Mexico\u2019s verified accounts statute, NMSA 1978, Section 38-7-1, and because Ole did not file a verified answer, summary judgment was proper.\nOur difficulty with the arguments of both parties is that the procedure followed in this case fits neither the verified accounts statute relied on by plaintiffs nor the rule for granting summary judgment.\nSection 38-7-1, entitled \u201cVerified accounts; instruments in writing; denial under oath,\u201d reads as follows:\nExcept as provided in the Uniform Commercial Code [55-1-101 to 55-9-507 NMSA 1978], accounts duly verified by the oath of the party claiming the same, or his agent, and promissory notes and other instruments in writing, not barred by law, are sufficient evidence in any suit to enable the plaintiff to recover judgment for the amount thereof, unless the defendant or his agent denies the same under oath.\nIt would appear, from the form of the complaint and the documents thereto attached, as well as from plaintiffs\u2019 brief, that plaintiffs intended to proceed under the above statute. Apparently, however, plaintiffs and the trial court misapprehended the limitations of the statutory procedure, and assumed the statute to be self-executing.\nAllowance of judgment on the verified account of a party has a long history in this jurisdiction. Laws 1880, ch. 5, \u00a7 18, the progenitor of the current statute, contained language identical to that contained in the current statute:\nAccounts duly verified by the oath of the party claiming the same, or his agent, * * * shall be sufficient evidence in any suit to enable the plaintiff to recover judgment for the amount thereof, unless the defendant, or his agent, shall deny the same under oath.\nIt was said in Richardson v. Pierce, 14 N.M. 334, 339, 93 P. 715, 716 (1908), that the \u201cvery purpose\u201d of the statute was \u201cto obviate the necessity of the introduction of the books of original entry * * * where the truth of such accounts is not directly denied under oath.\u201d In Wagner v. Hunton, 76 N.M. 194, 413 P.2d 474 (1966), the statute was again construed. Plaintiff there, an attorney, had attached his affidavit to the complaint, which outlined his fees for services rendered, relying for judgment on the provisions of NMSA 1953, Section 20-2-7, another forerunner of the current statute. Defendant failed to answer, under oath or otherwise. The trial court refused to grant a default judgment. Chief Justice Carmody, writing for this Court, looked to the default judgment rule and held that the verified accounts statute was \u201cmerely a rule of evidence\u201d excusing the need to introduce the original books and records, but it did not relieve a party from producing evidence to support a judgment and \u201cunless and until offered in evidence, it [the verified account] remained as it was\u2014 merely a part of the pleadings.\u201d Id. at 195, 413 P.2d at 475. The judgment of the trial court was sustained.\nWe observe that plaintiff in Wagner, although relying on the verified account statute\u2019s provisions, without offering any evidence or testimony, applied for a default judgment. In the instant case, plaintiff, assertedly acting also under the statute and also without offering evidence or testimony, moved for summary judgment. Upon the reasoning of Wagner, we might well hold that summary judgment based on verified attachments to the plaintiffs\u2019 pleadings was improper for two reasons: there is nothing in plaintiffs\u2019 affidavits to show that the affiants\u2019 statements were made upon personal knowledge, or that affiants were competent to testify regarding the accuracy of the records, as required by the rule for summary judgment, NMSA 1978, Civ.P.Rule 56 (Repl.Pamp.1980). See Martinez v. Metzgar, 97 N.M. 173, 637 P.2d 1228 (1981).\nBut Wagner was not the last word on Section 38-7-1. In 1973, this Court held that in a proceeding under the statute (then NMSA 1953, Section 20-2-7), if plaintiff submitted the verified account attached to the complaint into evidence, defendant could not thereafter rely at trial on sworn testimony denying the indebtedness to defeat plaintiff\u2019s claim. Alexander Concrete Co. v. Western States Mechanical Contractors, Inc., 84 N.M. 558, 505 P.2d 1234 (1973). We said there:\nThe purpose of this statute * * * would be thwarted unless the denial of verified accounts was required prior to the time of trial. If we were to accept appellant\u2019s interpretation of the statute and allow denial under oath at trial after plaintiff has rested his case, then it would always be necessary to go through the entire proceeding of proving such accounts rather than eliminating such necessity, as intended.\nFor Section 20-2-7 to have any credence whatsoever, the denial under oath required in the statute must come before the time of trial, otherwise the purpose of the statute fails. * * * Accepting the purpose of this statute as that specified in Richardson and Wagner, supra, we can only hold that it was the intent of the legislature that the denial under oath must be in writing and must be filed as a part of the pleadings. If such is done, then the parties are free to prepare their cases accordingly.\nId. at 559, 505 P.2d at 1235. Alexander reaffirmed the necessity of moving the complaint\u2019s exhibits into evidence.\nIt thus appears that plaintiffs here did not fully comply with the required steps for obtaining either summary judgment or judgment pursuant to Section 38-7-1. On the other hand, Ole failed to file a verified answer, denying under oath the allegations of the complaint. Had plaintiffs proceeded to introduce their exhibits at that point, they would have been entitled to judgment under the statute and the rationale of Alexander.\nWe are not prepared to say that Ole\u2019s \u201cResponse to Motion for Summary Judgment\u201d was insufficient to overcome a summary judgment motion. NMSA 1978, Civ. P.Rule 56(e) (Repl.Pamp.1980) requires the adverse party to set forth specific facts showing there is a genuine issue for trial by \u201chis response, by affidavits or as otherwise provided in this rule.\u201d The rule does not require that contravention of the documents relied on by the movant necessarily be made by affidavit. In Ole\u2019s Response, it called attention to the lack of supporting documents to support plaintiffs\u2019 motion; insofar as Ole was concerned, the only things before the trial court were the pleadings and they certainly showed issues of material fact. From the record before us, it appears that only when the motion for summary judgment was argued was it disclosed that plaintiffs intended to rely on the affidavits attached to the complaint. As we have said, although those affidavits might have supported judgment under Section 38-7-1, they were insufficient to meet the provisions of Rule 56(e). See Carter v. Burn Construction Co., 85 N.M. 27, 508 P.2d 1324, cert. denied 85 N.M. 5, 508 P.2d 1302 (1973).\nThe decision must be reversed and the case remanded for further consideration under one procedure or the other, but not as a hybrid of both summary judgment and the statutory proceeding.\nA further matter will remain to be decided upon remand of this matter, should a judgment again be entered for plaintiffs. The trial court awarded a single judgment in the aggregate amount of both plaintiffs\u2019 claims, plus attorney fees of $1,000, and it allowed interest \u201con all of the aforesaid sums at the rate of eighteen percent (18%) per annum from April 31 [sic], 1983 until paid.\u201d April 30, 1983, was the date of the last entry in Tire Company\u2019s books; Year-wood\u2019s last entry was marked \u201cApril 1983.\u201d Copies of Yearwood\u2019s running monthly statements, Exhibit B attached to the complaint, are imprinted with the legend: \u201cIV2% Service Charge on Balance over 30 days.\u201d It appears that the final ten entries on Yearwood\u2019s last statement were interest charges. Tire Company\u2019s ledger cards covering approximately a nine-month period, Exhibit A, show a total of seven interest charge entries, which seem to approximate a charge of 1V2% per month on the unpaid balances, but there is nothing else in Exhibit A to indicate any rate of interest as a term of its open account with defendant.\nNMSA 1978, Section 56-8-4 (Cum.Supp. 1983), provides, in the portion pertinent to this appeal, as follows:\nA. Interest shall be allowed on judgments and decrees for the payment of money from entry and shall be calculated at the rate of fifteen percent per year, unless the judgment is rendered on a written instrument having a different rate of interest, in which case interest shall be computed at the rate specified in the instrument.\nThe allowance of 18% on a judgment for Yearwood until the debt is paid would be proper because there is \u201ca written instrument\u201d having a different rate of interest than the 15% permitted by Section 56-8-4. Whether the same would apply to Tire Company\u2019s account might possibly be inferred from the Exhibit A ledger cards, but ledger cards are not statements to a customer, and such records are by no means conclusive, in the absence of any evidence that defendant was notified, or agreed by \u201ca written instrument,\u201d that its open account was subject to an interest charge of 18% per year.\nThe trial court is reversed and the matter is remanded for further consideration and proceedings in accordance with this Opinion.\nIT IS SO ORDERED.\nFEDERICI, C.J., and RIORDAN, J., concur.", "type": "majority", "author": "WALTERS, Justice." } ], "attorneys": [ "Thomas F. Hooker, Jr., P.C., Albuquerque, for plaintiffs-appellees.", "Frank Bachicha, Jr., Bachicha Legal Services, P.A., Santa Fe, for defendant-appellant." ], "corrections": "", "head_matter": "683 P.2d 39\nNEW MEXICO TIRE & BATTERY CO., INC. and Yearwood and House Tire and Battery Co., Inc., Plaintiffs-Appellees, v. OLE TIRES, INC., Defendant-Appellant.\nNo. 15282.\nSupreme Court of New Mexico.\nJune 6, 1984.\nThomas F. Hooker, Jr., P.C., Albuquerque, for plaintiffs-appellees.\nFrank Bachicha, Jr., Bachicha Legal Services, P.A., Santa Fe, for defendant-appellant." }, "file_name": "0357-01", "first_page_order": 391, "last_page_order": 394 }