{ "id": 1563447, "name": "Richard KREISCHER, Plaintiff-Appellant, v. Robert ARMIJO, Defendant-Appellee", "name_abbreviation": "Kreischer v. Armijo", "decision_date": "1994-08-26", "docket_number": "No. 15566", "first_page": "671", "last_page": "675", "citations": [ { "type": "official", "cite": "118 N.M. 671" }, { "type": "parallel", "cite": "884 P.2d 827" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "18 L.Ed.2d 605", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1967, "opinion_index": 0 }, { "cite": "87 S.Ct. 1495", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1967, "opinion_index": 0 }, { "cite": "386 U.S. 1039", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6386657, 6385793, 6387429, 6386181, 6386024, 6387592, 6386892, 6386322, 6385621 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/us/386/1039-06", "/us/386/1039-02", "/us/386/1039-08", "/us/386/1039-04", "/us/386/1039-03", "/us/386/1039-09", "/us/386/1039-07", "/us/386/1039-05", "/us/386/1039-01" ] }, { "cite": "77 N.M. 39", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2806707 ], "weight": 2, "year": 1966, "pin_cites": [ { "page": "46", "parenthetical": "courts will not add words to a statute unless necessary to conform to obvious intent of legislature or to prevent absurdity" }, { "page": "247", "parenthetical": "courts will not add words to a statute unless necessary to conform to obvious intent of legislature or to prevent absurdity" } ], "opinion_index": 0, "case_paths": [ "/nm/77/0039-01" ] }, { "cite": "533 P.2d 433", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1975, "pin_cites": [ { "page": "435", "parenthetical": "shareholders of unlicensed corporate contractor properly dismissed as parties plaintiff in suit to recover moneys owed to corporation" } ], "opinion_index": 0 }, { "cite": "12 Wash.App. 917", "category": "reporters:state", "reporter": "Wash. App.", "case_ids": [ 1855872 ], "year": 1975, "pin_cites": [ { "parenthetical": "shareholders of unlicensed corporate contractor properly dismissed as parties plaintiff in suit to recover moneys owed to corporation" } ], "opinion_index": 0, "case_paths": [ "/wash-app/12/0917-01" ] }, { "cite": "522 P.2d 694", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1974, "pin_cites": [ { "page": "695" } ], "opinion_index": 0 }, { "cite": "55 Haw. 474", "category": "reporters:state", "reporter": "Haw.", "case_ids": [ 1470145 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/haw/55/0474-01" ] }, { "cite": "11 Ariz.App. 473", "category": "reporters:state", "reporter": "Ariz. App.", "case_ids": [ 1206362 ], "weight": 2, "year": 1970, "pin_cites": [ { "page": "612" } ], "opinion_index": 0, "case_paths": [ "/ariz-app/11/0473-01" ] }, { "cite": "105 N.M. 336", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1598907 ], "weight": 4, "year": 1987, "pin_cites": [ { "page": "338" }, { "page": "865" } ], "opinion_index": 0, "case_paths": [ "/nm/105/0336-01" ] }, { "cite": "108 N.M. 669", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1592888 ], "weight": 3, "pin_cites": [ { "page": "908" } ], "opinion_index": 0, "case_paths": [ "/nm/108/0669-01" ] }, { "cite": "106 N.M. 99", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 707737 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "101" }, { "page": "970" } ], "opinion_index": 0, "case_paths": [ "/nm/106/0099-01" ] }, { "cite": "111 N.M. 410", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715050 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "413" }, { "page": "62" }, { "page": "414" }, { "page": "63" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0410-01" ] }, { "cite": "109 N.M. 655", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590300 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "664" }, { "page": "612" } ], "opinion_index": 0, "case_paths": [ "/nm/109/0655-01" ] }, { "cite": "107 L.Ed.2d 271", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1989, "opinion_index": 0 }, { "cite": "110 S.Ct. 291", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1989, "opinion_index": 0 }, { "cite": "493 U.S. 923", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11417056, 11417094, 11416871, 11417002, 11416783, 11416914, 11417140, 11416823, 11416958 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/us/493/0923-07", "/us/493/0923-08", "/us/493/0923-03", "/us/493/0923-06", "/us/493/0923-01", "/us/493/0923-04", "/us/493/0923-09", "/us/493/0923-02", "/us/493/0923-05" ] }, { "cite": "108 N.M. 288", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1592844 ], "weight": 2, "pin_cites": [ { "page": "311" }, { "page": "345" } ], "opinion_index": 0, "case_paths": [ "/nm/108/0288-01" ] }, { "cite": "801 F.2d 1451", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10552577 ], "pin_cites": [ { "page": "1462-63" } ], "opinion_index": 0, "case_paths": [ "/f2d/801/1451-01" ] }, { "cite": "663 S.W.2d 813", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9954840 ], "pin_cites": [ { "page": "815" } ], "opinion_index": 0, "case_paths": [ "/sw2d/663/0813-01" ] }, { "cite": "611 S.W.2d 611", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9945253 ], "pin_cites": [ { "page": "614" } ], "opinion_index": 0, "case_paths": [ "/sw2d/611/0611-01" ] }, { "cite": "708 S.W.2d 8", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9958925 ], "year": 1986, "pin_cites": [ { "page": "10-11" } ], "opinion_index": 0, "case_paths": [ "/sw2d/708/0008-01" ] }, { "cite": "497 A.2d 534", "category": "reporters:state_regional", "reporter": "A.2d", "pin_cites": [ { "page": "539" } ], "opinion_index": 0 }, { "cite": "203 N.J.Super. 486", "category": "reporters:state", "reporter": "N.J. Super.", "case_ids": [ 374978 ], "opinion_index": 0, "case_paths": [ "/nj-super/203/0486-01" ] }, { "cite": "234 Kan. 618", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 1485929 ], "weight": 2, "year": 1984, "pin_cites": [ { "parenthetical": "citation omitted" }, { "page": "363", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/kan/234/0618-01" ] } ], "analysis": { "cardinality": 710, "char_count": 13616, "ocr_confidence": 0.7, "pagerank": { "raw": 1.2005452731664548e-07, "percentile": 0.5934959914651394 }, "sha256": "67bdd49c058273387cf545dd45042a70a153d11b84e10000e1146a96535496c3", "simhash": "1:bdab7466554cd8b9", "word_count": 2205 }, "last_updated": "2023-07-14T22:33:20.619055+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "FLORES and BOSSON, JJ., concur." ], "parties": [ "Richard KREISCHER, Plaintiff-Appellant, v. Robert ARMIJO, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nAPODACA, Judge.\nPlaintiff appeals the trial court\u2019s dismissal of his complaint against Defendant. The complaint was dismissed in a summary judgment proceeding on the basis that Defendant was not the real party in interest. Based on the allegations raised in the complaint, we hold that the real party in interest was not Defendant individually, but Armijo Construction, Inc., a New Mexico Corporation, (the Corporation) owned by Defendant. Because Plaintiff failed to substitute the Corporation as a defendant, we affirm the trial court\u2019s order granting summary judgment. We deem it unnecessary to address Plaintiff\u2019s other issues.\nFACTS\nPlaintiff and his wife contracted with the Corporation to have an addition built to Plaintiffs home. Plaintiff dealt with Defendant, who was acting as agent for the Corporation, which Defendant solely owned and of which he was president. Defendant possessed a contractor\u2019s license in his own name only; the Corporation itself did not possess such a license.\nBecause the construction was never completed, Plaintiff and his wife sued Defendant and two other defendants for unfair trade practices, gross negligence, and fraudulent misrepresentation. Plaintiff did not sue the Corporation, either in contract or in tort. Both parties filed motions for summary judgment. Following a hearing on the motions, the trial court denied Plaintiffs motion but granted Defendant\u2019s motion, thus dismissing all claims against Defendant with prejudice. Plaintiffs wife did not join in the appeal. Plaintiff has not appealed the earlier dismissal of the other two defendants from the lawsuit. Additional facts will be discussed as relevant to our discussion.\nDISCUSSION\nThe trial court and the parties framed the dispositive issue as whether Defendant or the Corporation was the real party in interest. Plaintiff\u2019s second amended complaint alleged that Defendant had committed unfair trade practices, gross negligence, and fraudulent misrepresentation. Defendant, in his motion for summary judgment, contended that he was not the real party in interest because Plaintiff\u2019s contract was formed with the Corporation. Defendant thus argued in the trial court that, as an agent for the Corporation, he was not personally liable under the contract. He makes the same argument on appeal.\nWe recognize that an agent may be held individually liable for his own tortious acts, whether or not he was acting for a disclosed principal. See Restatement (Second) of Agency \u00a7 348 (1958) (agent can be sued in tort for fraud and misrepresentation); Restatement (Second) of Agency \u00a7 350 (1958) (agent subject to liability for negligence). Thus, the initial inquiry is whether Plaintiffs causes of action sounded in contract or in tort. The distinction between tort and contract liability is often a difficult distinction. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts \u00a7 92, at 655 (5th ed. 1984). Nonetheless, we are satisfied from our review of Plaintiffs second amended complaint that, although his causes of action are couched in tort language, the gravamen of the complaint was essentially the failure of Defendant to complete the construction work in accordance with the contract. See id. at 621-22 (courts must often decide on the facts pleaded the \u201cgist\u201d or \u201cgravamen\u201d of a cause of action).\nCourts have long followed the rule that \u2018\u201c[t]he difference between a tort and contract action is that a breach of contract is a failure of performance of a duty arising or imposed by agreement; whereas, a tort is a violation of a duty imposed by law.\u2019 \u201d Tamarac Dev. Co. v. Delamater, Freund & Assoc., P.A, 234 Kan. 618, 675 P.2d 361, 363 (1984) (citation omitted); see also Prosser at 656-58 (suggesting that distinctions between tort and contract cases frequently follow seven generalizations). In this case, the essence of Plaintiffs claim of gross negligence was that construction work was performed in a grossly willful, wanton, and negligent manner that rendered the house unsafe and unusable. The obligation to properly construct the house, however, was created by the contract and was not an obligation imposed by law. The mere titling of the cause of action as one for gross negligence did not change its nature. See New Mea Constr. Corp. v. Harper, 203 N.J.Super. 486, 497 A.2d 534, 539 (App.Div.1985) (homeowner\u2019s complaint of negligent supervision against corporate builder\u2019s principal sounded in contract rather than tort). The court did not err in dismissing this claim.\nFor the same reason, Plaintiffs claims of fraudulent misrepresentation were properly denied. In each claim, Plaintiff alleged that he paid defendant certain sums of money to be used on the construction project. Defendant allegedly failed in this regard. Again, the obligation to use the money on the construction of the house was a duty imposed by the contract and not by law.\nPlaintiffs Count I of the amended complaint can be viewed in a slightly different light. The allegations in this count came very close to alleging a valid non-contractual cause of action against Defendant, as an agent of the Corporation, based on the Unfair Practices Act, NMSA 1978, \u00a7\u00a7 57-12-1 to -21 (Repl.Pamp.1987) (the UPA). The language contained in this count alleged certain facts that, if proven, could support a cause of action for unfair and deceptive trade practice against Defendant, not the Corporation.\nWe therefore recognize that these allegations might support a claim that is separately actionable against Defendant. Although there is very little precedent under the UPA, Texas has enacted an act similar in language to our own, the Deceptive Trade Practices Act, Texas Bus. & Com.Code Ann. \u00a7\u00a7 17.41 et seq. (Vernon Supp.1986). Several reported cases have been decided under Texas\u2019 act. For example, Great Am. Homebuilders, Inc. v. Gerhart, 708 S.W.2d 8, 10-11 (Tex.Ct.App. 1986), involved a suit under the Texas act against a corporation for failure to perform in the building of a home, and against the principal of the corporation, individually, for specific misrepresentations made in that context. These facts are very similar to the facts in this appeal. Smith v. Baldwin, 611 S.W.2d 611, 614 (Tex.1980), is another case involving a contract to build a house where separate allegations were maintained under Texas\u2019 act based upon specific representations of individuals. A similar case is Light v. Wilson, 663 S.W.2d 813, 815 (Tex.1983), in which the concurring opinion emphasized the separate liability of an agent for a statutory tort under the act. These actions existed independently of the contract and the action on the contract between the parties. Id.; see also ALT Corp. v. Small Business Admin., 801 F.2d 1451, 1462-63 (5th Cir.1986) (simple actions for breach of contract not cognizable under Deceptive Trade Practices Act; allegations of a tortious nature are required).\nHowever, we conclude that we need not address the propriety of the trial court\u2019s dismissal of Count I of Plaintiff\u2019s complaint, alleging Defendant committed unfair trade practices. First, Plaintiff did not raise or argue this particular issue in his brief in chief. See State v. Clark, 108 N.M. 288, 311, 772 P.2d 322, 345 (declining to review issue not raised on appeal), cert. denied, 493 U.S. 923, 110 S.Ct. 291, 107 L.Ed.2d 271 (1989), overruled on other grounds by State v. Henderson, 109 N.M. 655, 664, 789 P.2d 603, 612 (1990). Second, although Plaintiff alleged Defendant made certain misrepresentations that could be actionable under the UPA, Plaintiff neutralized this language by later alleging in the same paragraph that Defendant \u201cabandoned the work site completely prior to completion.\u201d This quoted language poses the cause of action as one sounding in contract rather than in tort. Consequently, although we recognize that, with proper allegations and the necessary argument made first to the trial court and then to us on appeal, Plaintiff could have brought a separate cause of action under the UPA against Defendant individually, we hold that Plaintiff failed to do so in this instance.\nFor these reasons, we conclude that the gist of the complaint against Defendant was actually a breach of the construction contract, and consequently we do not address Defendant\u2019s potential liability for his allegedly tortious acts.\nOn the basis of the above discussion, we believe the issue as argued by the parties can be more precisely stated. We thus rephrase the issue before us as follows: whether the Construction Industries Licensing Act, NMSA 1978, \u00a7\u00a7 60-13-1 to -57 (Orig.Pamp.), (the Act) allows a cause of action based on breach of contract against the individual owner of the construction license who was not a party to the contract but was acting as the agent of a corporation that was a party to the contract but did not possess a license.\nPlaintiff contends that the public policy of requiring contractors to possess a valid license mandates imposition of liability on the parly who possesses the license. We are not persuaded. Although we agree that New Mexico has a strong public policy of requiring contractors to possess a license, see Mascarenas v. Jaramillo, 111 N.M. 410, 413, 806 P.2d 59, 62 (1991); \u00a7 60-13-4, the cases on which Plaintiff relies do not indicate that the appropriate remedy is to place liability on an individual or entity who was not a party to the contract. Rather, the plaintiff is entitled to recover all payments made to the unlicensed contractor, as well as any damages suffered, directly from the contractor. See Mascarenas, 111 N.M. at 414, 806 P.2d at 63; Triple B Corp. v. Brown & Root, Inc., 106 N.M. 99, 101, 739 P.2d 968, 970 (1987). Additionally, the unlicensed contractor is prohibited from filing a contractor\u2019s lien or recovering payments not made. Section 60-13-30. Two other cases cited by Plaintiff, State v. Jenkins, 108 N.M. 669, 777 P.2d 908 (Ct.App.1989), and Verchinski v. Klein, 105 N.M. 336, 732 P.2d 863 (1987), are inapplicable to the facts of this appeal. Jenkins involved a criminal complaint against a contractor for contracting without a license. 108 N.M. at 669, 777 P.2d at 908; see \u00a7 60-13-52(A). The issue addressed in Verchinski was whether a dealer who furnishes materials only is required to possess a contractor\u2019s license. 105 N.M. at 338, 732 P.2d at 865. Neither case involved a civil suit with facts similar to this case.\nBecause New Mexico law; does not indicate whether liability for breach of contract should be imposed on an agent for a general contractor who does not possess a valid license, we look for guidance to established principles of agency law. Generally, an agent for a disclosed principal is not a party to any contract entered into on behalf of the principal. As stated in Restatement (Second) of Agency \u00a7 320 (1958), \u201c[u]nless otherwise agreed, a person making or purporting to make a contract with another as agent for a disclosed principal does not become a party to the contract.\u201d See Ferrarell v. Robinson, 11 Ariz.App. 473, 465 P.2d 610, 612 (1970); Corps Constr. Ltd. v. Hasegawa, 55 Haw. 474, 522 P.2d 694, 695 (1974). Plaintiff had the burden of showing that Defendant was a party to the contract. See Restatement (Second) of Agency \u00a7 320 cmt. b. Plaintiff admitted in the second amended complaint that the construction contract was with the Corporation and that Defendant was acting as an agent for the Corporation. Thus, it follows that the Corporation was the party liable on the contract and, in what was basically a breach of contract suit, was the real party in interest. Cf. Dunkelberger v. Baker, 12 Wash.App. 917, 533 P.2d 433, 435 (1975) (shareholders of unlicensed corporate contractor properly dismissed as parties plaintiff in suit to recover moneys owed to corporation).\nThe Act does not alter this general rule. Plaintiff argues that, because the Act prohibits the Corporation, as an unlicensed contractor, from filing a mechanic\u2019s lien or pursuing a lawsuit to collect compensation for a construction job, see \u00a7 60-13-30, the Corporation cannot be the real party in interest. However, although an agent who enters into a contract on behalf of a disclosed principal that is unlicensed is subject to criminal liability, see \u00a7 60-13-52(A), nothing in the Act imposes civil liability on such an agent. We decline to read such language into the Act. See State v. Nance, 77 N.M. 39, 46, 419 P.2d 242, 247 (1966) (courts will not add words to a statute unless necessary to conform to obvious intent of legislature or to prevent absurdity), cert. denied, 386 U.S. 1039, 87 S.Ct. 1495, 18 L.Ed.2d 605 (1967).\nCONCLUSION\nWe hold that the Act does not alter the general rule that an agent is not liable on a contract the agent enters into on behalf of a disclosed principal, even where the principal does not possess a contractor\u2019s license and the agent does. Therefore, under the facts of this case, where the complaint essentially alleged breach of the construction contract, we conclude that the trial court did not err in dismissing the complaint. We affirm the trial court\u2019s order granting summary judgment in favor of Defendant based on the court\u2019s determination that the Corporation was the real party in interest. No costs are awarded on appeal.\nIT IS SO ORDERED.\nFLORES and BOSSON, JJ., concur.", "type": "majority", "author": "APODACA, Judge." } ], "attorneys": [ "Richard H. Miller, Santa Fe, for plaintiff-appellant.", "Gilbert Houston Frith, Vickie L. Minor, The Frith Firm, Santa Fe, for defendantappellee." ], "corrections": "", "head_matter": "884 P.2d 827\nRichard KREISCHER, Plaintiff-Appellant, v. Robert ARMIJO, Defendant-Appellee.\nNo. 15566.\nCourt of Appeals of New Mexico.\nAug. 26, 1994.\nRichard H. Miller, Santa Fe, for plaintiff-appellant.\nGilbert Houston Frith, Vickie L. Minor, The Frith Firm, Santa Fe, for defendantappellee." }, "file_name": "0671-01", "first_page_order": 701, "last_page_order": 705 }