{ "id": 1561375, "name": "Kenneth P. YELIN and Jacqueline Yelin, Defendants-and-Cross-Claimants-Appellants, v. CARVEL CORPORATION and Franchise Stores Realty Corporation, Cross-Defendants-Appellees", "name_abbreviation": "Yelin v. Carvel Corp.", "decision_date": "1995-03-06", "docket_number": "No. 21513", "first_page": "554", "last_page": "559", "citations": [ { "type": "official", "cite": "119 N.M. 554" }, { "type": "parallel", "cite": "893 P.2d 450" } ], "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": "791 P.2d 290", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1990, "opinion_index": 0 }, { "cite": "269 Cal.Rptr. 720", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1990, "opinion_index": 0 }, { "cite": "50 Cal.3d 1012", "category": "reporters:state", "reporter": "Cal. 3d", "case_ids": [ 4461120 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/cal-3d/50/1012-01" ] }, { "cite": "211 Cal.Rptr. 172", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1985, "pin_cites": [ { "page": "178", "parenthetical": "noting that under California law, implied contractual indemnity is based upon the premise that a contractual obligation carries an implied promise to indemnify for foreseeable damages resulting to the indemnitee from the indemnitor's improper performance" } ], "opinion_index": 0 }, { "cite": "164 Cal. App.3d 1227", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 2127007 ], "year": 1985, "pin_cites": [ { "parenthetical": "noting that under California law, implied contractual indemnity is based upon the premise that a contractual obligation carries an implied promise to indemnify for foreseeable damages resulting to the indemnitee from the indemnitor's improper performance" } ], "opinion_index": 0, "case_paths": [ "/cal-app-3d/164/1227-01" ] }, { "cite": "656 P.2d 547", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10430900 ], "pin_cites": [ { "page": "551" } ], "opinion_index": 0, "case_paths": [ "/p2d/656/0547-01" ] }, { "cite": "129 Ariz. 195", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 1600672 ], "weight": 2, "pin_cites": [ { "page": "197" }, { "page": "1033" } ], "opinion_index": 0, "case_paths": [ "/ariz/129/0195-01" ] }, { "cite": "36 L.Ed.2d 314", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1973, "opinion_index": 0 }, { "cite": "93 S.Ct. 1549", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1973, "opinion_index": 0 }, { "cite": "411 U.S. 921", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 10089, 9833, 10355, 10006, 9786, 10267, 9790, 10015 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/us/411/0921-04", "/us/411/0921-06", "/us/411/0921-07", "/us/411/0921-08", "/us/411/0921-02", "/us/411/0921-03", "/us/411/0921-01", "/us/411/0921-05" ] }, { "cite": "471 F.2d 29", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 268876 ], "pin_cites": [ { "page": "30" } ], "opinion_index": 0, "case_paths": [ "/f2d/471/0029-01" ] }, { "cite": "98 L.Ed.2d 107", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1987, "opinion_index": 0 }, { "cite": "108 S.Ct. 152", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1987, "opinion_index": 0 }, { "cite": "484 U.S. 851", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 600449, 602403, 599653, 601897, 601706, 600203, 600588, 602378, 601743, 601203, 601909, 602268 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/us/484/0851-02", "/us/484/0851-11", "/us/484/0851-08", "/us/484/0851-09", "/us/484/0851-07", "/us/484/0851-03", "/us/484/0851-12", "/us/484/0851-04", "/us/484/0851-01", "/us/484/0851-06", "/us/484/0851-05", "/us/484/0851-10" ] }, { "cite": "812 F.2d 640", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1694813 ], "pin_cites": [ { "page": "642-43" } ], "opinion_index": 0, "case_paths": [ "/f2d/812/0640-01" ] }, { "cite": "678 S.W.2d 889", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9954461 ], "weight": 4, "pin_cites": [ { "page": "894" }, { "page": "892" }, { "page": "894" }, { "page": "892" } ], "opinion_index": 0, "case_paths": [ "/sw2d/678/0889-01" ] }, { "cite": "627 F.Supp. 610", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7858058 ], "weight": 5, "pin_cites": [ { "page": "612" }, { "page": "613" } ], "opinion_index": 0, "case_paths": [ "/f-supp/627/0610-01" ] }, { "cite": "514 F.2d 747", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 553357 ], "weight": 4, "pin_cites": [ { "page": "748-49" }, { "page": "750" } ], "opinion_index": 0, "case_paths": [ "/f2d/514/0747-01" ] }, { "cite": "87 N.M. 203", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2836120 ], "weight": 6, "year": 1974, "pin_cites": [ { "page": "938-39" }, { "page": "205" }, { "page": "939" } ], "opinion_index": 0, "case_paths": [ "/nm/87/0203-01" ] }, { "cite": "119 N.M. 542", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1561223 ], "weight": 6, "year": 1995, "pin_cites": [ { "page": "546" }, { "page": "441-42" }, { "parenthetical": "citations omitted" }, { "page": "551" } ], "opinion_index": 0, "case_paths": [ "/nm/119/0542-01" ] }, { "cite": "103 N.M. 689", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711392 ], "weight": 4, "year": 1985, "pin_cites": [ { "page": "693", "parenthetical": "allowing continued impleader of concurrent tortfeasors, whose liability for contribution was abolished after the adoption of comparative negligence" }, { "page": "1355", "parenthetical": "allowing continued impleader of concurrent tortfeasors, whose liability for contribution was abolished after the adoption of comparative negligence" }, { "page": "693" }, { "page": "1355" } ], "opinion_index": 0, "case_paths": [ "/nm/103/0689-01" ] }, { "cite": "380 F.2d 749", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2073244 ], "pin_cites": [ { "page": "751" } ], "opinion_index": 0, "case_paths": [ "/f2d/380/0749-01" ] }, { "cite": "105 N.M. 586", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1598915 ], "weight": 4, "year": 1987, "pin_cites": [ { "page": "587" }, { "page": "1270" }, { "page": "587" }, { "page": "1270" } ], "opinion_index": 0, "case_paths": [ "/nm/105/0586-01" ] }, { "cite": "108 N.M. 405", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1592804 ], "weight": 9, "year": 1989, "pin_cites": [ { "page": "408" }, { "page": "353" }, { "page": "408" }, { "page": "353" }, { "page": "408" }, { "page": "353" }, { "page": "410" }, { "page": "355" } ], "opinion_index": 0, "case_paths": [ "/nm/108/0405-01" ] }, { "cite": "514 F.2d 747", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 553357 ], "pin_cites": [ { "page": "748-49" } ], "opinion_index": 1, "case_paths": [ "/f2d/514/0747-01" ] }, { "cite": "108 N.M. 405", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1592804 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "409" }, { "page": "354" } ], "opinion_index": 1, "case_paths": [ "/nm/108/0405-01" ] } ], "analysis": { "cardinality": 966, "char_count": 20675, "ocr_confidence": 0.727, "pagerank": { "raw": 9.021034952717962e-08, "percentile": 0.5037859350101106 }, "sha256": "9069931996c9ba6902b805520a75fd95376913a6375d2b132332fcc0ec7c0d93", "simhash": "1:df22ee9b55f219e2", "word_count": 3282 }, "last_updated": "2023-07-14T22:42:52.429175+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BACA, C.J., and RANSOM and MINZNER, JJ., concur.", "FRANCHINI, J., dissenting." ], "parties": [ "Kenneth P. YELIN and Jacqueline Yelin, Defendants-and-Cross-Claimants-Appellants, v. CARVEL CORPORATION and Franchise Stores Realty Corporation, Cross-Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nFROST, Justice.\nDefendants-Appellants, Kenneth and Jacqueline Yelin (the Yelins), appeal from the district court\u2019s order dismissing their third-party complaint against Third-Party-Defendant-Appellee, Carvel Corporation (Carvel). The district court held that the third-party complaint was improperly filed under SCRA 1986, 1-014(A). We affirm.\nFACTS\nCarvel is in the business of licensing individuals to manufacture and sell ice cream and frozen dessert products under the Carvel name. In December 1986 the Yelins entered into a franchise agreement with Carvel to sell ice cream products in Albuquerque. As part of the agreement, Carvel\u2019s wholly owned subsidiary, Franchise Stores Realty Corporation, leased retail space in Albuquerque from George Doolittle and Jeanette Doolittle Ingram (the Doolittles). Franchise Stores Realty Corporation then assigned its entire interest in the lease to the Yelins as owners of the franchise. The term of the lease was for a period of nine years and ten months, beginning on February 1, 1987, and its provisions included payments for rent, taxes, insurance, and other miscellaneous charges. The Yelins operated the Carvel franchise for approximately &k years. Over the course of this period, however, the franchise lost money, and, ultimately, the Yelins were forced to close the business.\nIn September 1991 the Doolittles filed suit against the Yelins for breach of the lease agreement. The Doolittles claimed that the Yelins breached the lease by failing to continue to operate their business at the leased premises, and by failing to pay rent and their proportionate share of taxes, insurance, and other costs. The Yelins, in turn, filed a third-party complaint against Carvel seeking to recover, in addition to other damages, all amounts adjudged against them in the Doolittles\u2019 suit. The Yelins claim that Carvel\u2019s negligent misrepresentations induced them to enter the franchise agreement and that Carvel breached the terms of the franchise agreement by failing to provide advertising and necessary supplies on a timely basis. The Yelins argue that Carvel\u2019s failures and wrongful conduct interfered with their ability to make a profit and thereby precluded them from fulfilling their obligations under the lease agreement.\nCarvel moved to dismiss the third-party complaint on the grounds that it was improper under SCRA 1-014(A), which governs third-party practice. The district court granted the motion to dismiss, finding that Carvel\u2019s potential liability to the Yelins was not dependent on the outcome of the Doolittles\u2019 suit. The Yelins now appeal the dismissal.\nDISCUSSION\nThe issue on appeal is whether the Yelins may properly implead Carvel under SCRA 1-014(A) of the New Mexico Rules of Civil Procedure. SCRA 1-014(A) allows a defendant to implead \u201ca person not a party to the action who is or may be liable to him for all or part of the plaintiffs claim against him.\u201d This Court has consistently interpreted this requirement to mean that the third party\u2019s potential liability must be derivative of or dependent upon the outcome of the primary claim against the defendant. Yates Exploration, Inc. v. Valley Improvement Ass\u2019n, 108 N.M. 405, 408, 773 P.2d 350, 353 (1989); Grain Dealers Mut. Ins. Co. v. Reed, 105 N.M. 586, 587, 734 P.2d 1269, 1270 (1987). See also 6 Charles A. Wright et al., Federal Practice and Procedure \u00a7 1446 (2d ed.1990) (noting that the secondary or derivative liability notion is central to impleader); United States v. Joe Grosso & Son, Inc., 380 F.2d 749, 751 (5th Cir.1967) (noting that Federal Rules of Civil Procedure require derivative liability).\nTraditionally, we have held that derivative or secondary liability to the defendant, on the basis of indemnity, contribution or some similar theory, is essential for maintaining a third-party action. Yates Exploration, 108 N.M. at 408, 773 P.2d at 353; Grain Dealers, 105 N.M. at 587, 734 P.2d at 1270; cf. Tipton v. Texaco, Inc., 103 N.M. 689, 693, 712 P.2d 1351, 1355 (1985) (allowing continued impleader of concurrent tortfeasors, whose liability for contribution was abolished after the adoption of comparative negligence). Thus, we note that although SCRA 1-014 should be interpreted liberally to facilitate judicial economy, Tipton, 103 N.M. at 693, 712 P.2d at 1355; 3 James W. Moore & Richard D. Freer, Moore\u2019s Federal Practice \u00b6 14.07[1] (2d ed.1994), \u201cit was not intended to be used to resolve every controversy between the defendant and a third-party which may have some relationship with the transaction at issue in the original complaint.\u201d Yates Exploration, 108 N.M. at 408, 773 P.2d at 353.\nThe only question in this appeal is whether Carvel\u2019s potential liability is derivative of or independent from the Doolittles\u2019 main claim against the Yelins. The Yelins argue that a defendant sued for breach of contract has a right of implied indemnity against a third person whose wrong caused the defendant\u2019s breach. They claim that Carvel\u2019s wrongful conduct and breach of the franchise agreement made it impossible for them to fulfill their obligations under the lease agreement and that Carvel\u2019s actions give rise to a claim for implied indemnity.\nNew Mexico courts have allowed an action for indemnification in several situations. See Amrep Southwest, Inc. v. Shollenbarger Wood Treating, Inc. (In re Consol. Vista Hills Retaining Wall Litigation), 119 N.M. 542, 546, 893 P.2d 438, 441-42 (1995). Traditional indemnification is based on an independent, preexisting legal relationship, and the right to indemnification typically arises from an express or implied contract. Id. New Mexico courts have also held that indemnification can arise by operation of law to prevent an inequitable result. Consequently, we have applied equitable indemnity in cases involving vicarious or derivative liability, \u201cas when an employer must pay for the negligent conduct of its employee under the doctrine of respondeat superior or when a person is directed by another to do something that appears innocent but is in fact wrongful.\u201d Id. We have also applied indemnification principles \u201cin both negligence and strict liability cases involving persons in the chain of supply of a product, and in breach of warranty cases.\u201d Id. (citations omitted). In addition, this Court recently recognized the theory of proportional indemnification, which applies when both a defendant and a third party would be concurrently liable to the plaintiff but, because of the plaintiffs choice of remedy, the liability is placed only on the former and cannot be prorated between the wrongdoers. Id. at 551, 893 P.2d at 447-49. The Yelins\u2019 indemnity claim, however, does not implicate any of these designated theories; nor do the underlying facts of this case fall within one of the aforementioned situations in which we have applied indemnity principles in order to avoid inequitable results.\nInstead, the Yelins rely on University Ford v. Marlin, 87 N.M. 203, 531 P.2d 937 (1974) for support of their proposition that equitable indemnity also arises when a defendant\u2019s breach is caused by the wrongful acts of a third person. In University Ford, the plaintiff sued the defendant, Louis Motors, for failing to turn over the proceeds of a sale Louis Motors made on the plaintiff's behalf. Louis Motors was unable to turn over the proceeds because the third-party defendant bank had negligently allowed another individual to cash the proceeds check which had been issued in defendant\u2019s name. Id. at 204-OS, 531 P.2d at 938-39. The University Ford Court upheld the trial court\u2019s finding that the bank was liable to Louis Motors for the loss of the proceeds under the circumstances. Id. at 205, 531 P.2d at 939.\nWe are not persuaded that University Ford supports the Yelins\u2019 position in this matter. An examination of the opinion in University Ford does not reveal the legal theory or rationale which the University Ford court employed in arriving at its conclusion. The Court never focused upon or discussed the principles of indemnification. In our view, all that can be said of University Ford is that it held that the bank was negligent in cashing a check without proper authorization and endorsement, and therefore the bank owed the lost proceeds to its customer on whose account the cheek was drawn. In view of the potential for confusion which is inherent in University Ford, to the extent that it can be read as inconsistent with this opinion, it is overruled.\nThe Yelins\u2019 claim for indemnity is much closer to the claim the court in Southeast Mortgage Co. v. Mullins, 514 F.2d 747 (5th Cir.1975), rejected as improper under Rule 14 of the Federal Rules of Civil Procedure, the federal counterpart to SCRA 1-014. In Southeast Mortgage, the Department of Housing and Urban Development (HUD) helped the defendant, Mullins, take out a loan to purchase a home. After Mullins defaulted on the loan and the mortgage company instituted foreclosure proceedings against Mullins, she attempted to implead HUD. Mullins alleged that HUD had violated the National Housing Act by failing to enforce certain regulations thereby causing the foreclosure proceeding. Id. at 748-49. The court noted,\nThe sole connection between the [main claim and the third-party claim] is the contention that, but for HUD\u2019s failure to adopt and enforce adequate regulations, there would have been no foreclosure proceedings.\nThe suggestion that a separate and independent claim can be made the proper subject of a third party complaint because, but for the violation of duty alleged the main claim would not have matured, has been rejected by this and other courts.\nId. at 750. After examining two related cases, the court concluded\nThe common thread running through these cases, and our own, is that the right or duty alleged to have been violated in the third party complaint does not emanate from the main claim but exists wholly independent of it. In each, the nexus with the principal action is not that it establishes the right to relief, but merely the need for relief.\nId.\nNational Bank of Canada v. Artex Industries, Inc., 627 F.Supp. 610 (S.D.N.Y.1986), also addressed the issue before us. In Artex, the plaintiff bank paid a supplier on defendant Artex\u2019s behalf and then mistakenly credited the payment back to Artex\u2019s account. The bank then sued Artex for return of the mistaken payment. Artex impleaded Seaport, the corporation for whom it had acquired the supplies, claiming that Seaport had not paid Artex an outstanding balance on the construction contract. Id. at 612. The Artex court found that the \u201cminimal overlap\u201d between the main claim and the disputes involved in the third-party claim was insufficient to allow the latter to stand. Id. at 613. \u201cThe outcome of the third-party claim must be contingent on the outcome of the main claim, and here Seaport\u2019s liability to Artex under their contract involves many issues unconnected with NBC\u2019s claim for the return of a mistaken payment.\u201d Id. The court dismissed the impleader claim without prejudice as improper under Rule 14 of the Federal Rules of Civil Procedure. Id.\nThe court in AAA Excavating, Inc. v. Francis Construction, Inc., 678 S.W.2d 889, 894 (Mo.Ct.App.1984), similarly dismissed defendant\u2019s claim for indemnity that was based on third-party defendant\u2019s alleged negligent misrepresentation. In AAA Excavating, the excavating company brought suit against the general contractor for unpaid work. The contractor, in turn, impleaded a consultant who the contractor claimed was negligent in performing soil samples and compaction tests. The contractor argued that it was unable to pay AAA Excavating because it had spent the funds on other repairs necessitated by the consultant\u2019s misrepresentations regarding soil stability. Id. at 892. The court dismissed the claim, noting, \u201cIf a third party plaintiff could proceed and recover against the third party defendant even if the third party plaintiff were to win in the suit brought by the plaintiff the petition would not be covered by [the rules governing third-party practice].\u201d Id. at 894. The court held: \u201cRegardless of the outcome of AAA Excavating\u2019s claim, defendant will still have a claim against [third-party defendant] for all of its claimed damages____ Defendant\u2019s claim is in no way dependent upon the disposition of plaintiffs petition against defendant.\u201d Id. at 892.\nIn the case at bar, the Yelins\u2019 claim against Carvel also involves the resolution of many issues legally and factually unconnected with the Doolittles\u2019 claim, and similarly is not contingent upon the outcome. The Yelins are asserting a claim against Carvel for the amounts they are alleged to owe the Doolittles, as items of damage for Carvel\u2019s alleged wrongful conduct and misrepresentations which induced the Yelins to enter into the lease. This is not really a claim that the third-party defendant is liable for the rent due from the Yelins; it is a claim that is independent of the lease itself.\nThe Yelins maintain that their claim against Carvel is derivative of the Doolittles\u2019 claim because the main claim will determine whether the Yelins have been damaged by Carvel\u2019s actions. However, this argument mistakes the nature of derivative liability. The only effect resolution of the Doolittles\u2019 claim might have on the Yelins\u2019 claim will be to establish the amount of a portion of the damages that Carvel may owe if they are found to be liable to the Yelins. Carvel\u2019s actual liability is entirely separate from the Yelins\u2019 breach of the lease agreement. If the Yelins\u2019 allegations against Carvel are found to be true, the Yelins would be entitled to recover damages for breach of contract or misrepresentation regardless of whether the Doolittles recover against the Yelins. Thus, while the Yelins\u2019 claim against Carvel may be transactionally related to the Doolittles\u2019 main claim, it is not derivative of that claim and is not the proper subject of a third-party complaint. In addition, the presence of Carvel as a party in this matter would complicate rather than simplify resolution of the issues involved. See Yates Exploration, 108 N.M. at 410, 773 P.2d at 355.\nAccordingly, the district court properly dismissed the third-party complaint for failing to demonstrate derivative liability as required under SCRA 1-014. Indeed, \u201c[t]o refuse to dismiss a third-party complaint which did not meet the standards of Rule 1-014 ... would be an abuse of discretion.\u201d Id. We note that the Yelins are still free to pursue their claims against Carvel in a separate action if they so choose.\nCONCLUSION\nFor the foregoing reasons, we affirm the judgment of the trial court.\nIT IS SO ORDERED.\nBACA, C.J., and RANSOM and MINZNER, JJ., concur.\nFRANCHINI, J., dissenting.\n. See also United States v. Olavarrieta, 812 F.2d 640, 642-43 (11th Cir.) (holding that under Florida law defendant\u2019s claim against third party for fraud and breach of contract in failing to award . defendant a J.D. degree was independent of plaintiff's suit for repayment of defendant\u2019s student loans), cert. denied, 484 U.S. 851, 108 S.Ct. 152, 98 L.Ed.2d 107 (1987); Rozelle v. Connecticut Gen. Life Ins. Co., 471 F.2d 29, 30 (10th Cir.1972) (finding that \u201d[t]he obligation of [defendant] to pay was not conditioned upon the actions of the [third-party defendants],\u201d and that resolution of the main claim \"did not ... preclude [defendant] from recovery of any damage which he might have sustained if able to show wrongdoing in the exercise of [third-party defendants] reserved timber rights.\u2019\u2019), cert. denied, 411 U.S. 921, 93 S.Ct. 1549, 36 L.Ed.2d 314 (1973); Jobe v. King, 129 Ariz. 195, 197, 629 P.2d 1031, 1033 (App.1981) (dismissing as too tenuous to support indemnity under Rule 14(a) defendant\u2019s third-party claim alleging that neighbor\u2019s wrongful act made it financially impossible for defendant to pay rent); Robertson v. TWP, Inc., 656 P.2d 547, 551 (Wyo.1983) (finding that third-party defendant\u2019s alleged wrongful acts were too remote a cause of defendant\u2019s injury to form the basis for indemnity). But see Bear Creek Planning Comm. v. Title Ins. & Trust Co., 164 Cal. App.3d 1227, 211 Cal.Rptr. 172, 178 (1985) (noting that under California law, implied contractual indemnity is based upon the premise that a contractual obligation carries an implied promise to indemnify for foreseeable damages resulting to the indemnitee from the indemnitor\u2019s improper performance), disapproved on other grounds, 50 Cal.3d 1012, 269 Cal.Rptr. 720, 791 P.2d 290 (1990).", "type": "majority", "author": "FROST, Justice." }, { "text": "FRANCHINI, Justice\n(dissenting).\nI respectfully dissent. The trial court appears to have confused the proof of liability requirement. That court dismissed the Yelins\u2019 third-party claim on the premise that all of Carvel\u2019s potential third-party liability to the Yelins was not premised on the first-party liability established by proof of the breach of lease. Our rules do not require that. Joinder simply requires that the first-party defendant allege that a third-party is liable to him for \u201cpart of the plaintiff\u2019s claim\u201d. SCRA 1986, 1-014(A). Any additional third-party claims are entertained by reason of judicial economy and are collateral to the claim that satisfied the joinder requirement.\nThe business\u2019s failure undisputedly was the direct cause of the breach of the lease, thus the claim is both transactionally related to and derivative of the major first-party claim. In my opinion it is not, as the majority suggests, \u201centirely separate from the Yelins\u2019 breach of the lease agreement.\u201d The jury can determine to what degree or percentage, if any, Carvel caused the business\u2019s failure and the resulting inability to pay the rents due under the lease. Obviously, if the Doolittles fail to prove that the Yelins were hable for damages for breach of the lease, the Yelins\u2019 third-party allegations of damages based on liability under the lease would also fail. The Yelins satisfied the requirement of stating facts sufficient to show that Carvel had \u201cpotential liability to the defendant which is ... dependent upon the resolution of the main claim.\u201d Yates Exploration, 108 N.M. at 409, 773 P.2d at 354. Unlike the defendant in Yates Exploration, the Yelins have established a substantive basis for relief that is transactionally connected to the first-party claim.\nThe cases cited by the opinion are all factually distinguishable. I respectfully submit that this case is not \u201ccloser to\u201d Southeast Mortgage. There, the defendant did not allege that the third-party defendant\u2019s negligence caused her to breach her contract\u2014 she simply alleged that HUD failed to provide limitations to keep the first-party plaintiff from suing her for breach of contract in the first place. See 514 F.2d at 748-49. Thus, she did not properly allege facts showing that HUD was liable for part of the mortgagee\u2019s claim against her.\nIn Artex the suit was for return of a mistaken payment, not for breach of a eon-tract. The defendant could not allege any acts by a third party that had anything to do with the mistake, thus its claim against the third-party defendant was not transactionally related. Likewise, the defendants in AAA Excavating, Olavarrieta, Jobe, and Robertson could not show that the alleged wrongful acts were transactionally related.\nIn this case, Carvel was originally primarily liable for the lease and the Doolittles\u2019 claim against the Yelins was based on the assignment of the lease to them. The Yelins asserted that the lease assignment was obtained by Carvel\u2019s fraudulent and negligent misrepresentations and that the original lease was obtained for the sole purpose of inducing individuals to enter into franchise agreements with Carvel. The Yelins further alleged that the Doolittles knew that performance of the lease depended upon fulfillment of Carvel\u2019s obligations under the franchise. In its answer brief Carvel claims that the Yelins did not allege that Carvel is primarily liable. However, it seems to me that the Yelins\u2019 claims that the assignment was void ab initio because of fraud does give rise to the possibility that Carvel could be found primarily liable under the original lease. I believe the trial court improperly dismissed the Yelins\u2019 claims against Carvel. I would reverse the trial court.", "type": "dissent", "author": "FRANCHINI, Justice" } ], "attorneys": [ "Charles G. Berry & Associates, P.A., Charles G. Berry, Albuquerque, for appellants.", "Guebert & Yeomans, P.C., Richard Yeomans, Albuquerque, for appell\u00e9es." ], "corrections": "", "head_matter": "893 P.2d 450\nKenneth P. YELIN and Jacqueline Yelin, Defendants-and-Cross-Claimants-Appellants, v. CARVEL CORPORATION and Franchise Stores Realty Corporation, Cross-Defendants-Appellees.\nNo. 21513.\nSupreme Court of New Mexico.\nMarch 6, 1995.\nRehearing Denied April 5, 1995.\nCharles G. Berry & Associates, P.A., Charles G. Berry, Albuquerque, for appellants.\nGuebert & Yeomans, P.C., Richard Yeomans, Albuquerque, for appell\u00e9es." }, "file_name": "0554-01", "first_page_order": 646, "last_page_order": 651 }