{ "id": 2866888, "name": "Gerald DeMARSH, Plaintiff-Appellant, v. James H. LANDRETH, d/b/a Landreth Wrecking Co., Defendant-Appellee", "name_abbreviation": "DeMarsh v. Landreth", "decision_date": "1976-08-24", "docket_number": "No. 2046", "first_page": "494", "last_page": "498", "citations": [ { "type": "official", "cite": "89 N.M. 494" }, { "type": "parallel", "cite": "553 P.2d 1301" } ], "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": "430 F.2d 430", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2232015 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/f2d/430/0430-01" ] }, { "cite": "47 S.C.L.Rev. 1", "category": "journals:journal", "reporter": "S.C. L. Rev.", "year": 1973, "opinion_index": 0 }, { "cite": "46 S.C.L.Rev. 1003", "category": "journals:journal", "reporter": "S.C. L. Rev.", "opinion_index": 0 }, { "cite": "386 F.Supp. 1251", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3338151 ], "opinion_index": 0, "case_paths": [ "/f-supp/386/1251-01" ] }, { "cite": "349 A.2d 560", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1975, "opinion_index": 0 }, { "cite": "137 N.J.Super. 492", "category": "reporters:state", "reporter": "N.J. Super.", "case_ids": [ 301134 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nj-super/137/0492-01" ] }, { "cite": "360 F.Supp. 420", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 31577 ], "opinion_index": 0, "case_paths": [ "/f-supp/360/0420-01" ] }, { "cite": "378 F.Supp. 491", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3444551 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/f-supp/378/0491-01" ] }, { "cite": "43 L.Ed.2d 409", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1975, "opinion_index": 0 }, { "cite": "95 S. Ct. 1141", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1975, "opinion_index": 0 }, { "cite": "420 U.S. 934", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11653788, 11654055, 11653961, 11654156, 11653773, 11653838, 11653903, 11653935, 11653871, 11653813, 11654103, 11653754, 11654012 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/us/420/0934-03", "/us/420/0934-11", "/us/420/0934-09", "/us/420/0934-13", "/us/420/0934-02", "/us/420/0934-05", "/us/420/0934-07", "/us/420/0934-08", "/us/420/0934-06", "/us/420/0934-04", "/us/420/0934-12", "/us/420/0934-01", "/us/420/0934-10" ] }, { "cite": "503 F.2d 990", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 103839 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/f2d/503/0990-01" ] }, { "cite": "387 F.Supp. 645", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3349669 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/f-supp/387/0645-01" ] }, { "cite": "486 P.2d 1242", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1971, "pin_cites": [ { "parenthetical": "California claim and delivery procedures unconstitutional" } ], "opinion_index": 0 }, { "cite": "96 Cal.Rptr. 42", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1971, "pin_cites": [ { "parenthetical": "California claim and delivery procedures unconstitutional" } ], "opinion_index": 0 }, { "cite": "5 Cal.3d 258", "category": "reporters:state", "reporter": "Cal. 3d", "case_ids": [ 2324333 ], "year": 1971, "pin_cites": [ { "parenthetical": "California claim and delivery procedures unconstitutional" } ], "opinion_index": 0, "case_paths": [ "/cal-3d/5/0258-01" ] }, { "cite": "419 U.S. 601", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177891 ], "weight": 3, "year": 1975, "opinion_index": 0, "case_paths": [ "/us/419/0601-01" ] }, { "cite": "407 U.S. 67", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9136631 ], "weight": 4, "year": 1972, "pin_cites": [ { "parenthetical": "debtors subject to replevin without notice or hearing" } ], "opinion_index": 0, "case_paths": [ "/us/407/0067-01" ] }, { "cite": "416 U.S. 600", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 84376 ], "weight": 5, "year": 1974, "pin_cites": [ { "page": "604" }, { "page": "1898" } ], "opinion_index": 0, "case_paths": [ "/us/416/0600-01" ] }, { "cite": "520 P.2d 961", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1974, "opinion_index": 0 }, { "cite": "113 Cal.Rptr. 145", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1974, "opinion_index": 0 }, { "cite": "11 Cal.3d 146", "category": "reporters:state", "reporter": "Cal. 3d", "case_ids": [ 2302320 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/cal-3d/11/0146-01" ] }, { "cite": "16 Wm. & Mary L.Rev. 971", "category": "journals:journal", "reporter": "Wm. & Mary L. Rev.", "year": 1975, "opinion_index": 0 }, { "cite": "395 U.S. 337", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1771623 ], "weight": 3, "year": 1969, "opinion_index": 0, "case_paths": [ "/us/395/0337-01" ] }, { "cite": "226 P. 162", "category": "reporters:state_regional", "reporter": "P.", "year": 1924, "opinion_index": 1 }, { "cite": "29 N.M. 651", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8842255 ], "year": 1924, "opinion_index": 1, "case_paths": [ "/nm/29/0651-01" ] }, { "cite": "195 P. 515", "category": "reporters:state_regional", "reporter": "P.", "year": 1921, "opinion_index": 1 }, { "cite": "26 N.M. 622", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8843062 ], "year": 1921, "opinion_index": 1, "case_paths": [ "/nm/26/0622-01" ] }, { "cite": "31 N.M. 469", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1551448 ], "weight": 3, "year": 1926, "opinion_index": 1, "case_paths": [ "/nm/31/0469-01" ] }, { "cite": "520 P.2d 961", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1974, "opinion_index": 1 }, { "cite": "113 Cal.Rptr. 145", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1974, "opinion_index": 1 }, { "cite": "11 Cal.3d 146", "category": "reporters:state", "reporter": "Cal. 3d", "case_ids": [ 2302320 ], "year": 1974, "opinion_index": 1, "case_paths": [ "/cal-3d/11/0146-01" ] } ], "analysis": { "cardinality": 787, "char_count": 16146, "ocr_confidence": 0.808, "pagerank": { "raw": 5.220769574596862e-08, "percentile": 0.3294848464138257 }, "sha256": "ee68e49d49de80e86586cedc1de5a81c7ad9e3f1ecc15481ebca9191d9e117f3", "simhash": "1:b3c13f83caca1431", "word_count": 2610 }, "last_updated": "2023-07-14T20:56:52.908635+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SUTIN, J., specially concurring.", "HERNANDEZ, J., concurs." ], "parties": [ "Gerald DeMARSH, Plaintiff-Appellant, v. James H. LANDRETH, d/b/a Landreth Wrecking Co., Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nLOPEZ, Judge.\nThis case presents the issue of the constitutionality of the garageman\u2019s lien statute. Section 61-3-1, N.M.S.A.1953 (2d Repl. Vol. 9).\nThe plaintiff brought his car to the defendant\u2019s shop with instructions that the defendant install a new engine in the. car. The agreed price was $364.00. The defendant installed the intake manifold from the old engine on the replacement engine. When the replacement engine was started broken pieces of piston were sucked into the engine, damaging it. At the additional cost of about $100 the defendant repaired the damage caused the engine.\nThe plaintiff maintained that he told the defendant that his previous engine had been damaged by a broken piston so that the defendant should have known to have checked the intake manifold before installing it in the new engine. The defendant denies that the plaintiff told him this. When the plaintiff came to pick up the car, the defendant informed him of the additional charge but the plaintiff would not pay more than the original contract price.\nAfter the plaintiff refused to pay, the defendant asserted a mechanic\u2019s lien and refused to return the car. The statute authorizing this action states:\n\u201c61-3-1. Liens for manufacture or repairs \u2014 Motor vehicles. \u2014 All artisans and mechanics shall have a lien on things made or repaired by them for the amount due for their work, and may retain possession thereof until said amount is paid. Any person or corporation who repairs any motor vehicle or furnishes parts therefor, at the request or with the consent of any person lawfully in possession of any such motor vehicle, shall have a lien upon such motor vehicle or any part or parts thereof for the sum due for repairing the same, and for labor furnished thereon, and for all costs incurred in enforcing such lien and may detain such motor vehicle in possession until such lien be paid.\u201d\nProvision is also made in the statute for the sale at auction of cars on which money is due. Section 61-3-11, N.M.S.A.1953 (2d Repl. Vol. 9). This provision is not at issue here.\nIn addition to alleging the unconstitutionality of \u00a7\u00a7 61-3-1 and 61-3-11, supra, the plaintiff sued, asking damages for losses incurred by reason of the defendant\u2019s unlawful retention of his car. The trial court held that the lien statute was not unconstitutional, so that the defendant\u2019s detention of the car was not wrongful. In addition, the court found that the damage to the plaintiff\u2019s new engine was not caused by the defendant\u2019s negligence and that the plaintiff was therefore obligated for the whole amount. The plaintiff appeals the decision of the trial court that the statute is not unconstitutional.\nThe plaintiff\u2019s position is that it is unfair for the state to sanction a procedure in which a repairman is able to unilaterally decide what is owed him and then retain a person\u2019s property until the debt is satisfied. This procedure runs contrary to the basic presumption of our judicial system that one has a right to a hearing before one is deprived of property, he argues. U.S. Const. Amend. XIV, \u00a7 1; Sniadach v. Family Finance Corporation, 395 U.S. 337, 89 S. Ct. 1820, 23 L.Ed.2d 349 (1969). The property which the defendant has been deprived of is the use of his car.\nThe adjudication of conflicting rights of creditors and debtors forms one of the most difficult constitutional questions, with major economic repercussions following any decision. Our decision in this case does not purport to be a definitive statement of the constitutional principles governing these relationships. Different rights and historical backgrounds control different forms of liens. Note, Possessory Liens: The Need for Separate Due Process Analysis, 16 Wm. & Mary L.Rev. 971 (1975).\nWe will proceed in an order which is the reverse of the usual followed in the due process analysis. Without discussing the role of the state, we will consider whether due process is in fact violated by the assertion of a repairman\u2019s lien.\nThe important characteristics of the repairman\u2019s lien are that the garageman has possession of the item at the time the \u201ctaking\u201d occurs, and that the garageman has added value, in the form of materials and labor to the specific item on which the lien is asserted.\nIn Adams v. Department of Motor Vehicles, 11 Cal.3d 146, 113 Cal.Rptr. 145, 520 P.2d 961 (1974), the California Supreme Court upheld California\u2019s garageman\u2019s lien. The court noted that it is the general policy of the law to honor the possessory right actually vested in possession until a judicial determination of conflicting claims has been made. The conflicting claims in the property are brought about by the second element noted, that the repairman has invested property and labor of his own in the detained item. This duality of interests was discussed in Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed. 2d 406 (1974), in which the court, in discussing sequestration procedures applied to property purchased on an installment basis, observed that the problem is not the creditor\u2019s seizure of property in which he had no interest: \u201c[t]he reality is that both seller and buyer had current, real interests in the property and the definition of property rights is a matter of state law. Resolution of the due process question must take account not only of the interests of the buyer of the property but those of the seller as well.\u201d 416 U.S. at 604, 94 S.Ct. at 1898. This duality of interest was of course present in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) and North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975) but in those cases the debtor\u2019s possession was displaced by procedures which were constitutionally infirm because of the intervention of the state without the proper judicial oversight. Once it is recognized that the creditor has a property interest in the contested article, \u201c[t]o strike down the garageman\u2019s possessory lien would be to alter the status quo in favor of an opposing claimant; the garageman would be deprived of his possessory interest precisely as were the debtors in Shevin [Fuentes v. Shevin, supra, (debtors subject to replevin without notice or hearing)] and Blair [Blair v. Pitchess, 5 Cal.3d 258, 96 Cal.Rptr. 42, 486 P.2d 1242 (1971) (California claim and delivery procedures unconstitutional)]\u201d. Adams v. Department of Motor Vehicles, supra; accord, Caesar v. Kiser, 387 F.Supp. 645 (M.D.N.C.1975) (interim retention constitutional).\nIn Phillips v. Money, 503 F.2d 990 (7th Cir. 1974), cert. denied, 420 U.S. 934, 95 S. Ct. 1141, 43 L.Ed.2d 409 (1975), the simultaneous presence of the twin factors of a property interest and possession by the creditor persuaded the court that the garageman\u2019s lien statute did not violate due process. The court distinguished Fuentes and Mitchell by noting that in both cases the status quo was altered by the seizure of the debtor\u2019s goods, but, \u201c[i]n contrast here the voluntary surrender of the motor vehicle to the garageman, albeit for the limited purpose of performing authorized repairs, results in the garageman having both a legal property interest, in the form of a lien, and actual possession. Interference with the status quo would be necessary to enable the owner to regain possession prior to final judgment.\u201d\nA balancing of the debtor\u2019s and creditor\u2019s interest also led the court to uphold the detention provision of a garageman\u2019s lien in Cockerel v. Caldwell, 378 F.Supp. 491 (W.D.Ky.1974).\nWe adopt the approach taken in these cases and hold that the retention of property pursuant to the garageman\u2019s lien is not an unconstitutional deprivation of property.\nBecause of the delicacy with which decisions must be made in this area and the effects flowing from these decisions, we shall delineate what is not decided by this case.\nThe case before us does not concern the constitutionality of the sale 'provision of the materialman\u2019s statute, \u00a7 61-3-11, supra, because consideration of this section was rendered moot by reason of the fact that plaintiff paid the defendant the charges demanded and regained possession of his automobile. When a detained vehicle is sold the owner\u2019s interest is permanently severed. The permanency of the deprivation has been held to require notice and a hearing by courts which have upheld the detention provision of the garageman\u2019s lien. Caesar v. Kiser, supra; Adams v. Department of Motor Vehicles, supra; Cockerel v. Caldwell, supra. The sale provision has also been declared unconstitutional by courts which did not discuss the detention aspect of the lien statutes. Mason v. Garris, 360 F.Supp. 420, (N.D.Ga.1973) ; Whitmore v. New Jersey Division of Motor Vehicles, 137 N.J.Super. 492, 349 A.2d 560 (1975).\nWe have assumed the presence of state action but have not decided whether it is present. The cases have split sharply on this issue. Representative of the cases holding that state action is present are: Adams v. Department of Motor Vehicles, supra, and Cockerel v. Caldwell, supra. Others have reached the opposite result: Phillips v. Money, supra, and Parks v. Mr. Ford, 386 F.Supp. 1251 (E.D.Pa.1975). The concept of state action is discussed in Burke and Reber, State Action, Congressional Power and Creditors\u2019 Rights: An Essay on the Fourteenth Amendment, 46 S.C.L.Rev. 1003, 47 S.C.L.Rev. 1 (1973).\nThe due process analysis already undertaken illuminates the issue of state action and lends emphasis to the need for precise analysis of the operation of every form of lien law. In the repairman\u2019s lien the repairman has a property interest in a specific item of property, not a general lien, and is already in possession of the contested items. The opposite of this situation prevails in the landlord\u2019s lien, which has been subject to successful constitutional challenge. Hall v. Garson, 430 F.2d 430 (5th Cir. 1970).\nIn conclusion, this opinion represents a balancing of interests; the controlling principles will respond as the interests involved change.\nThe decision of the trial court is affirmed.\nIT IS SO ORDERED.\nSUTIN, J., specially concurring.\nHERNANDEZ, J., concurs.", "type": "majority", "author": "LOPEZ, Judge." }, { "text": "SUTIN, Judge\n(specially concurring)\nI concur in the result only.\nSection 61-3-1 of the mechanic\u2019s lien law is constitutional. Section 61-3-11 is constitutional where procedure used is in the nature of chattel mortgage foreclosure. I hold that defendant was entitled to judgment on the pleadings. To arrive at this conclusion, it is necessary to analyze the pleadings, the decision and judgment of the trial court.\nA.Plaintiffs Complaint\nPlaintiff sought damages for conversion of his automobile by defendant. Defendant had a valid mechanic\u2019s lien, retained possession, and refused to surrender it. Plaintiff\u2019s claim for conversion, based on these facts alleged, does not state a claim upon which relief can be granted.\nUnder \u00a7 61-3-1, defendant had the right to retention of plaintiff\u2019s automobile. If plaintiff desired to obtain possession thereof, the proper remedy was replevin. Mathieu v. Roberts, 31 N.M. 469, 247 P. 1066 (1926).\nPlaintiff\u2019s complaint also alleged that defendant notified plaintiff of his intention to enforce the mechanic\u2019s lien by the optional method provided by \u00a7 61-3-11; that this statute was unconstitutional; that by reason of both sections being unconstitutional, plaintiff\u2019s automobile was taken without proper notice and judicial hearing. Plaintiff\u2019s automobile was \u201cnot taken\u201d in this manner because defendant did not sell the automobile. Plaintiff\u2019s complaint did not state a claim for relief under these facts.\nB. Defendant\u2019s Answer\nDefendant alleged as an affirmative defense :\nThe Defendant is enforcing his right of action to foreclose a lien for repairs to Plaintiff\u2019s motor vehicle which is not a state action. [Emphasis added]\nThis defense is not meritorious because defendant did not seek-to foreclose his lien for repairs under \u00a7 61-3-11. Defendant sought enforcement of his lien by notice and sale.\nC. Defendant\u2019s Alternative Motion for Summary Judgment\nDefendant moved the court (1) for judgment on the pleadings as a matter of law. I agree. (2) In the alternative, defendant moved for summary judgment pursuant to Rule 56 of the Rules of Civil. Procedure. The trial court granted defendant\u2019s motion on Rule 56. I disagree. There are no factual issues involved in this case.\nD. Judgment of the Court\nIn its decision, the trial court concluded that \u00a7 61-3-1 was constitutional and no tort was committed.\nThe trial court did not determine the constitutionality of \u00a7 61-3-11 as requested by plaintiff.\nThe trial court entered summary judgment. It decreed that defendant had a valid mechanic\u2019s lien and ordered:\nThat the Defendant may proceed to foreclose his mechanic\u2019s lien on said automobile pursuant to the applicable New Mexico statutes. [Emphasis added]\nDefendant is now limited to an independent suit for foreclosure of his mechanic\u2019s lien under \u00a7 61-3-11.\nE. The only applicable statute is \u00a7 61-3\u2014 11. It is constitutional on foreclosure of the lien, but not under the optional method of enforcement.\nFrom plaintiff\u2019s complaint, defendant\u2019s answer, the decision and judgment of the trial court, the constitutionality of \u00a7 61-3-11 and its enforcement are issues in this case on appeal.\nSection \u00f3l-3-ll is constitutional when the procedure is in the nature of chattel mortgage foreclosure. It is unconstitutional in the optional method of enforcement by notice and sale.\nThe first sentence of \u00a7 61-3-11 reads:\nIn order to enforce any lien under sections 61-3-1 through 61-3-18 New Mexico Statutes Annotated, 1953 Compilation, the procedure shall be the same as in the case of the foreclosure of a chattel mortgage if suit be filed in court. [Emphasis added]\nThis is the only statute applicable.\nUnder this provision, the statute is constitutional because, where suit is filed by the holder of the mechanic\u2019s lien, the debt- or is granted a hearing and is not denied due process. Originally, the statute provided that the lienholder may commence his action in the ordinary form. See Abeytia v. Gibbons Garage, 26 N.M. 622, 195 P. 515 (1921); Ross v. Overton, 29 N.M. 651, 226 P. 162 (1924). Under \u00a7 61-3-11, the Supreme Court has held that by use of the chattel mortgage foreclosure procedure, the legislature referred to an equitable action of chattel mortgage foreclosure. Mathieu v. Roberts, supra. Under this portion of \u00a7 61-3-11, defendant must proceed in an independent action for foreclosure of his lien as provided in the judgment.\nThe optional method of enforcement in \u00a7 61-3-11 grants the holder of a mechanic\u2019s lien the right to an involuntary sale of the owner\u2019s property without affording the owner the opportunity for a hearing. This method of procedure is unconstitutional because it denies the owner due process. Adams v. Department of Motor Vehicles, 11 Cal.3d 146, 113 Cal.Rptr. 145, 520 P.2d 961 (1974), and other cases cited in the opinion.\nF. Defendant cannot proceed under the optional method.\nDefendant gave plaintiff notice by certified mail that, pursuant to \u00a7 61-3-11, ten days from the date of the notice, plaintiff\u2019s automobile would be advertised and sold to satisfy the indebtedness. If defendant pursues this unconstitutional procedure by sale of plaintiff\u2019s automobile, defendant violates the order of the trial court and violates his right to continued lawful possession of plaintiff\u2019s automobile. By sale, plaintiff will be permanently deprived of the ownership of his automobile. The \u201csale\u201d procedure not having been undertaken by defendant, defendant is entitled to possession of plaintiff\u2019s automobile until the indebtedness is paid. Defendant is also entitled to proceed independently in an equitable action of chattel mortgage foreclosure.\nDefendant is entitled to judgment on the pleadings.", "type": "concurrence", "author": "SUTIN, Judge" } ], "attorneys": [ "John W. Fisk, Matkins & Martin, Carlsbad, for appellant.", "Thomas L. Marek, McCormick, Paine & Forbes, Carlsbad, for appellee." ], "corrections": "", "head_matter": "553 P.2d 1301\nGerald DeMARSH, Plaintiff-Appellant, v. James H. LANDRETH, d/b/a Landreth Wrecking Co., Defendant-Appellee.\nNo. 2046.\nCourt of Appeals of New Mexico.\nAug. 24, 1976.\nJohn W. Fisk, Matkins & Martin, Carlsbad, for appellant.\nThomas L. Marek, McCormick, Paine & Forbes, Carlsbad, for appellee." }, "file_name": "0494-01", "first_page_order": 530, "last_page_order": 534 }