{ "id": 2770318, "name": "John S. STEADMAN and Ann Steadman, his wife, Plaintiffs-Appellants, v. Thomas TURNER and Jesse P. Merlan, Defendants-Appellees", "name_abbreviation": "Steadman v. Turner", "decision_date": "1973-02-23", "docket_number": "No. 978", "first_page": "738", "last_page": "742", "citations": [ { "type": "official", "cite": "84 N.M. 738" }, { "type": "parallel", "cite": "507 P.2d 799" } ], "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": "155 F.2d 780", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1139207 ], "year": 1946, "opinion_index": 0, "case_paths": [ "/f2d/155/0780-01" ] }, { "cite": "83 N.M. 730", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5336986 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/nm/83/0730-01" ] }, { "cite": "83 N.M. 217", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5336868 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0217-01" ] }, { "cite": "190 A.2d 369", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1963, "opinion_index": 0 }, { "cite": "39 N.J. 585", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 1951958 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nj/39/0585-01" ] }, { "cite": "290 Minn. 78", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 329420 ], "weight": 3, "year": 1971, "opinion_index": 0, "case_paths": [ "/minn/290/0078-01" ] }, { "cite": "170 P. 47", "category": "reporters:state_regional", "reporter": "P.", "year": 1917, "opinion_index": 0 }, { "cite": "23 N.M. 558", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2394808 ], "year": 1917, "opinion_index": 0, "case_paths": [ "/nm/23/0558-01" ] }, { "cite": "71 N.M. 95", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5349613 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/71/0095-01" ] }, { "cite": "54 N.M. 139", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582009 ], "weight": 2, "year": 1950, "opinion_index": 0, "case_paths": [ "/nm/54/0139-01" ] }, { "cite": "44 N.M. 460", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566873 ], "weight": 2, "year": 1940, "opinion_index": 0, "case_paths": [ "/nm/44/0460-01" ] }, { "cite": "57 N.M. 585", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8842608 ], "weight": 2, "year": 1953, "opinion_index": 0, "case_paths": [ "/nm/57/0585-01" ] }, { "cite": "78 N.M. 116", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5321104 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0116-01" ] }, { "cite": "168 P. 483", "category": "reporters:state_regional", "reporter": "P.", "year": 1917, "opinion_index": 0 }, { "cite": "23 N.M. 290", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2394961 ], "year": 1917, "opinion_index": 0, "case_paths": [ "/nm/23/0290-01" ] }, { "cite": "81 N.M. 42", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5369513 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0042-01" ] }, { "cite": "83 N.M. 267", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5333543 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0267-01" ] }, { "cite": "70 N.M. 380", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2850519 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/70/0380-01" ] }, { "cite": "82 N.M. 369", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5332984 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0369-01" ] }, { "cite": "83 N.M. 789", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5334147 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/nm/83/0789-01" ] }, { "cite": "82 N.M. 597", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5335523 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nm/82/0597-01" ] }, { "cite": "84 N.M. 38", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2772521 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/84/0038-01" ] }, { "cite": "83 N.M. 358", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5338502 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nm/83/0358-01" ] } ], "analysis": { "cardinality": 623, "char_count": 12112, "ocr_confidence": 0.641, "pagerank": { "raw": 3.278488579475686e-07, "percentile": 0.8706243105293011 }, "sha256": "69bfba1562b4c5d9e27c99d90671edc0ef0ab89b3d9630e4856af6666decbba4", "simhash": "1:38cb76f5e324b270", "word_count": 1943 }, "last_updated": "2023-07-14T17:55:55.751115+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY and LOPEZ, JJ., concur." ], "parties": [ "John S. STEADMAN and Ann Steadman, his wife, Plaintiffs-Appellants, v. Thomas TURNER and Jesse P. Merlan, Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nTurner sold a house and lot to plaintiffs. Merl\u00e1n was Turner\u2019s agent. On the basis of alleged statements made by Merl\u00e1n in connection with the sale, plaintiffs sued defendants claiming fraud and breach of warranty. The trial court granted summary judgment to defendants; plaintiffs appeal. There are four issues in connection with the fraud claim: (1) sufficiency of pleading fraud; (2) proof of fraud; (3) factual issues as to fraud; and, (4) buyer\u2019s duty to investigate. There are two issues in connection with the warranty claim: (1) whether a warranty was given and (2) reliance on the alleged warranty.\nPleading fraud.\nThe complaint alleges that plaintiffs observed what appeared to be water stains on the basement walls of the house and, upon inquiry, Merl\u00e1n expressly warranted that the basement walls had been repaired and produced a receipted repair bill to substantiate this representation. The complaint alleges that plaintiffs agreed to consummate the sale in reliance on this representation. It alleges that Merlan\u2019s representation that necessary repairs had been made to prevent flooding was false and known by Merl\u00e1n to be false. It alleges that plaintiffs were damaged as a proximate result of the misrepresentation.\nSection 21-1-1(9) (b), N.M.S.A.1953 (Repl.Vol. 4) provides that \u201c * * * the circumstances constituting fraud * * * shall be stated with particularity. * * * \u201d Defendants claim: \u201c* * * the Plaintiffs \u2022failed to allege specifically the actual known acts of fraud. * * * \u201d Defendants also contend that the complaint \u201c * * * fails to state specifically what repair work was not done and how Defendant Merl\u00e1n knew it was not done or any allegations pertaining to Defendant Merlan\u2019s knowledge of the contractor\u2019s failure to perform all of the repairs. * * * \u201d\nDefendants seem to be arguing that to plead a claim of fraud the evidentiary details of the claim must be alleged. That is not the law. There is sufficient particularity in the pleading if the facts alleged are facts from which fraud will be necessarily implied. Romero v. Sanchez, 83 N.M. 358, 492 P.2d 140 (1971). \u201c * * * The allegations should leave no doubt in the defendants\u2019 minds as to the claim asserted against them. * * * \u201d Maxey v. Quintana, 84 N.M. 38, 499 P.2d 356 (Ct.App.1972). The allegations here, of knowingly false representations which induced plaintiffs to consummate the sale, are of sufficient particularity to comply with \u00a7 21-1-1(9) (b), supra. Defendants\u2019 attack on the pleadings is without merit.\nProof of fraud.\nEach element of fraud must be established by clear and convincing evidence. Hockett v. Winks, 82 N.M. 597, 485 P.2d 353 (1971).\nThe parties presented affidavits either in support of or in opposition to the-motion for summary judgment. Defendants assert there is nothing in the affidavits which plaintiffs presented \u201c * * * which would be clear and convincing to support all of the elements of fraud. * * * \u201d Since, according to defendants, plaintiffs\u2019 affidavits were insufficient to establish fraud, they claim the summary judgment was properly entered.\nDefendants confuse rules applicable to trials and rules applicable to summary judgments. At trial, the burden of establishing each element of fraud by clear and convincing evidence is upon plaintiffs. There has been no trial. This case was disposed of by summary judgment. Defendants, the movants for summary judgment, had the burden of establishing the absence of a material issue of fact and that it was entitled to summary judgment as a matter of law. Until defendants made a prima facie showing that it was entitled to summary judgment, there was no requirement upon plaintiffs to make any showing as to factual issues. Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972); Sanchez v. Shop Rite Foods, 82 N.M. 369, 482 P.2d 72 (Ct.App.1971). We discuss the showings made by the parties in the next issue.\nFactual issues as to fraud.\nDefendants\u2019 motion for summary judgment asserts there was no genuine issue as to a material fact. Merlan\u2019s affidavit supported the motion. The affidavit states that Merlan advised plaintiffs of repair work to the basement walls, advised by whom the repairs had been done and that the work had been guaranteed for one year. The affidavit denies any guarantee that the walls were safe \u201cfrom any water and leakage\u201d and any guarantee against future flooding of the basement. The affidavit denies any misrepresentation and asserts that all defects known to Merlan were shown and explained to plaintiffs. We assume this was a prima facie showing which would have entitled defendants to summary judgment if this showing was not controverted, and that with this showing the burden of showing the existence of a factual issue had shifted to plaintiffs.\nSteadman\u2019s opposing affidavit states that Merlan advised that the walls had leaked in the past but \u201cthat he had had the walls fixed.\u201d The affidavit states that Merlan advised that $1,000.00 had been spent to repair the walls; that plaintiffs did not need to worry about a damp basement; that \u201c * * * Merlan produced a receipt * * * listing a number of items of repair which * * * Merlan said had been done, and he further stated that these repairs would prevent further leaking. * * * \u201d The affidavit states the \u201cpapers\u201d were signed after receiving this \u201cassurance\u201d from Merlan. The affidavit states that, after moving in, the basement walls leaked; that the matter was brought to Merlan\u2019s attention; that plaintiffs then learned \u201c * * * that virtually none of the items of work listed on the receipt had actually been performed * * * \u201d and the contractor had not been paid the amount shown on the receipt. The affidavit of Steadman\u2019s attorney corroborates the contents of Stead-man\u2019s affidavit, and identifies a date and place where Merlan made the statements as to what repairs had been done and that the \u201cwalls would no longer leak.\u201d\nThe affidavits submitted by plaintiffs raised factual issues as to the representations made by Merlan; the reliance on those representations; Merlan\u2019s knowledge of their alleged falsity; and the intent with which the alleged false statements were made. See Sauter v. St. Michael\u2019s College, 70 N.M. 380, 374 P.2d 134 (1962). This being a summary judgment proceeding, the trial court could not weigh the factual conflicts in the opposing affidavits and, thus, could ont resolve issues of credibility. Hinojosa v. Nielson, 83 N.M. 267, 490 P.2d 1240 (Ct.App.1971); Johnson v. J. S. & H. Construction Co., 81 N.M. 42, 462 P.2d 627 (Ct.App.1969).\nThe factual claims discussed in this point do not sustain the summary judgment.\nBuyers\u2019 duty to investigate.\nMerlan\u2019s affidavit in support of the summary judgment motion states that plaintiffs \u201c * * * had ample opportunity to inspect the premises and to have an inspection of the walls and the basement at any time they desired,\u201d also that plaintiffs had ample opportunity \u201c * * * to have some expert advise them on any such defects.\u201d The opposing affidavits do not deny that such opportunities existed. Defendants contend that since such opportunities existed, defendants cannot be held liable for any fraud on their part.\nDefendants rely on Berrendo Irr. F. Co. v. Jacobs, 23 N.M. 290, 168 P. 483 (1917), where it is stated:\n\u201c * * * where a vendee undertakes to make investigation of his own, and is given full means to ascertain all the facts, and is not prevented from making the examination as full as he likes, he cannot be heard to complain because he relied upon representations of the vendor if his purchase proves unsuccessful. * * *\u00bb\nSee also Miller v. Golden W. Motel, 78 N.M. 116, 428 P.2d 655 (1967).\nThe Berrendo rule cannot be applied to sustain the summary judgment in this case because there is no showing that plaintiffs undertook to make any investigation of their own.\nDefendants cite no authority, other than the inapplicable Berrendo rule, to support their claim that under the circumstances of this case plaintiffs had a duty to investigate Merlan\u2019s allegedly false statement. New Mexico decisions have not imposed such a duty. Rather, they have resolved the issue by determining whether there was reliance and whether plaintiffs were entitled to rely on the alleged misrepresentations. Hammaker v. Lowe, 57 N.M. 585, 261 P.2d 129 (1953); Stewart v. Potter, 44 N.M. 460, 104 P.2d 736 (1940). Compare Bennett v. Finley, 54 N.M. 139, 215 P.2d 1013 (1950). Failing to show that plaintiffs were not entitled to rely on Merlan\u2019s alleged misrepresentations, defendants did not make a showing entitling them to summary judgment on this issue.\nWhether a warranty was given.\n\u201cA 'warranty\u2019 is an assurance by one party to a contract of the existence of a fact upon which the other party may rely. * * * \u201d 17A C.J.S. Contracts \u00a7 342 (1963). See Vitro Corp. of America v. Texas Vitrified Supply Co., 71 N.M. 95, 376 P.2d 41 (1962); Walters v. Ditto, 23 N.M. 558, 170 P. 47 (1917); compare \u00a7 50A-2-313, N.M.S.A.1953 (Repl.Vol. 8, pt. 1).\nA warranty can be given as to the condition of real property. Jackson v. Buesgens, 290 Minn. 78, 186 N.W.2d 184 (1971); Caparrelli v. Rolling Greens, Inc., 39 N.J. 585, 190 A.2d 369 (1963).\nIn asserting there was no warranty, defendants rely on the affidavit of Merl\u00e1n that he gave no \u201cguarantee.\u201d This is contradicted by the opposing affidavits. Defendants also assert that any assurance given plaintiffs is to be inferred \u201c * * * from the guarantee given by the contractor. * * * \u201d There is nothing to show that plaintiffs had any dealings with the contractor who allegedly made the repairs, and nothing to show that plaintiffs were either a beneficiary of or in any way bound by the contractor\u2019s guarantee to the defendants. With disputed factual questions as to Merlan\u2019s assurances, and with an absence of any showing that any warranty given was limited to that given by the contractor, defendants\u2019 showing was insufficient to sustain a summary judgment on the basis that no warranty was given. See Jackson v. Buesgens, supra.\nRight to rely on warranty.\nThe issue here is whether plaintiffs had a right to rely on any warranty made by Merl\u00e1n.\nDefendants assert that no such right of reliance existed because plaintiffs did not \u201crequire\u201d a guarantee before closing the sale. The answer is that plaintiffs need not have made a specific requirement of a warranty. Plaintiffs could rely on any warranty which was a part of the bargain made between the parties. The question is whether any such warranty was given and, if given, whether plaintiffs relied on the warranty. Defendants did not show an absence of factual issues on these questions. See Vitro Corp. of America v. Texas Vitrified Supply Co., supra; compare Stang v. Hertz Corporation, 83 N.M. 217, 490 P.2d 475 (Ct.App.1971) rev\u2019d on other grounds, 83 N.M. 730, 497 P.2d 732 (1972).\nDefendants also assert that plaintiffs should have contacted the contractor to inquire about the repairs performed and the reason for the repairs. Metropolitan Coal Co. v. Howard, 155 F.2d 780 (2nd Cir. 1946) answers this contention. The opinion states:\n\u201c * * * A warranty is an assurance by one party to a contract of the existence of a fact upon which the other party may rely. It is intended precisely to relieve the promisee of any duty to ascertain the fact for himself; it amounts to a promise to indemnify the promisee for any loss if the fact warranted proves untrue. * * * \u201d\nSince, if a warranty was given, plaintiffs had a right to rely on that warranty, defendants\u2019 contentions concerning a \u201cright to rely\u201d are without merit.\nThe summary judgment is reversed. The cause is remanded for further proceedings consistent with this opinion.\nIt is so ordered.\nHENDLEY and LOPEZ, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "Neil C. Stillinger, Watson, Stillinger & Lunt, Santa Fe, for plaintiffs-appellants.", "W. H. McDermott, McDermott & Connelly, Santa Fe, for defendants-appellees." ], "corrections": "", "head_matter": "507 P.2d 799\nJohn S. STEADMAN and Ann Steadman, his wife, Plaintiffs-Appellants, v. Thomas TURNER and Jesse P. Merlan, Defendants-Appellees.\nNo. 978.\nCourt of Appeals of New Mexico.\nFeb. 23, 1973.\nNeil C. Stillinger, Watson, Stillinger & Lunt, Santa Fe, for plaintiffs-appellants.\nW. H. McDermott, McDermott & Connelly, Santa Fe, for defendants-appellees." }, "file_name": "0738-01", "first_page_order": 894, "last_page_order": 898 }