{ "id": 2862987, "name": "Turner W. BRANCH and Vicki Branch, his wife, Plaintiffs-Appellees, v. Gary A. MAYS and Etsco, Inc., a New Mexico Corporation, Defendants-Appellants", "name_abbreviation": "Branch v. Mays", "decision_date": "1976-09-07", "docket_number": "No. 2060", "first_page": "536", "last_page": "540", "citations": [ { "type": "official", "cite": "89 N.M. 536" }, { "type": "parallel", "cite": "554 P.2d 1297" } ], "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": "80 N.M. 457", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5353510 ], "weight": 4, "year": 1969, "pin_cites": [ { "page": "459" } ], "opinion_index": 0, "case_paths": [ "/nm/80/0457-01" ] }, { "cite": "85 N.M. 740", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2775347 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/85/0740-01" ] }, { "cite": "87 N.M. 170", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2836897 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/87/0170-01" ] }, { "cite": "186 P. 1079", "category": "reporters:state_regional", "reporter": "P.", "year": 1920, "opinion_index": 0 }, { "cite": "25 N.M. 628", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4732992 ], "year": 1920, "opinion_index": 0, "case_paths": [ "/nm/25/0628-01" ] }, { "cite": "41 N.M. 395", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571415 ], "weight": 2, "year": 1937, "pin_cites": [ { "page": "399" }, { "page": "933" } ], "opinion_index": 0, "case_paths": [ "/nm/41/0395-01" ] }, { "cite": "88 N.M. 338", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2839119 ], "weight": 6, "year": 1975, "pin_cites": [ { "page": "340" }, { "page": "820" }, { "page": "340" }, { "page": "820" } ], "opinion_index": 0, "case_paths": [ "/nm/88/0338-01" ] }, { "cite": "430 P.2d 392", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1967, "opinion_index": 0 }, { "cite": "78 N.M. 234", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5323146 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0234-01" ] }, { "cite": "86 N.M. 531", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2822872 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/86/0531-01" ] }, { "cite": "82 N.M. 699", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5335958 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nm/82/0699-01" ] }, { "cite": "131 P. 493", "category": "reporters:state_regional", "reporter": "P.", "weight": 3, "year": 1913, "pin_cites": [ { "page": "494" }, { "page": "495" } ], "opinion_index": 0 }, { "cite": "17 N. M. 503", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 208814 ], "weight": 3, "year": 1913, "pin_cites": [ { "page": "508" }, { "page": "511" } ], "opinion_index": 0, "case_paths": [ "/nm/17/0503-01" ] }, { "cite": "77 N.M. 262", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2802186 ], "weight": 3, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/77/0262-01" ] }, { "cite": "276 P. 146", "category": "reporters:state_regional", "reporter": "P.", "year": 1929, "pin_cites": [ { "page": "147" } ], "opinion_index": 1 }, { "cite": "97 Cal.App. 752", "category": "reporters:state", "reporter": "Cal. App.", "case_ids": [ 2118613 ], "year": 1929, "opinion_index": 1, "case_paths": [ "/cal-app/97/0752-01" ] }, { "cite": "176 N.Y.S.2d 34", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1958, "opinion_index": 1 }, { "cite": "12 Misc.2d 84", "category": "reporters:state", "reporter": "Misc. 2d", "case_ids": [ 1028630 ], "year": 1958, "opinion_index": 1, "case_paths": [ "/misc2d/12/0084-01" ] }, { "cite": "80 N.M. 457", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5353510 ], "weight": 2, "year": 1969, "pin_cites": [ { "page": "459" } ], "opinion_index": 1, "case_paths": [ "/nm/80/0457-01" ] } ], "analysis": { "cardinality": 620, "char_count": 12369, "ocr_confidence": 0.805, "pagerank": { "raw": 9.35900740557047e-08, "percentile": 0.5141697450314671 }, "sha256": "18d949dfc2120bb21350ad79ede7e686cc8ee4e06027544c7688101e0bc78954", "simhash": "1:972eb163258fc8fb", "word_count": 2071 }, "last_updated": "2023-07-14T20:56:52.908635+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "LOPEZ, J., concurs.", "HERNANDEZ, J., concurring in part, dissenting in part." ], "parties": [ "Turner W. BRANCH and Vicki Branch, his wife, Plaintiffs-Appellees, v. Gary A. MAYS and Etsco, Inc., a New Mexico Corporation, Defendants-Appellants." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\nDefendant ETSCO, Inc. appeals an adverse judgment which awarded plaintiffs special damages in an action for slander of plaintiffs\u2019 fee simple title to property, and denied defendant recovery on its counterclaim for foreclosure of a materialman\u2019s lien. We reverse plaintiffs\u2019 judgment and affirm the denial of defendant\u2019s counterclaim.\nA. Plaintiffs were not entitled to recover special damages.\nPlaintiffs\u2019 claim was based on slander of title to plaintiffs\u2019 property by reason of defendant filing for record an invalid materialman\u2019s lien, which affected the marketability of plaintiffs\u2019 property. The complaint alleged general damages, not special damages. To state a claim for relief for slander of title to property, it is essential that special damages be alleged. Plaintiffs\u2019 complaint failed to state a claim for relief. Garver v. Public Service Company of New Mexico, 77 N.M. 262, 421 P. 2d 788 (1966).\nDefendant\u2019s first affirmative defense alleged that plaintiffs\u2019 complaint failed to state a claim upon which relief could be granted. This defense being meritorious, the trial court lacked jurisdiction to enter judgment on the complaint unless the omitted element of special damages was supplied by amendment of the complaint, or by litigation of the issue of special damages without objection by the opposing party. Canavan v. Canavan, 17 N. M. 503, 131 P. 493, Ann.Cas.1915B 1064 (1913). The method of accomplishing this result is now described in Rule 15(b) of the Rules of Civil Procedure. If plaintiffs did not comply with this rule, the trial court lacked jurisdiction to enter judgment for plaintiffs. We hold that plaintiffs did not comply,\nDuring trial, plaintiff Turner W. Branch began to testify on the issue of special damages which arose out of the lack of marketability of plaintiffs\u2019 property. Defendant objected because the complaint alleged general damages; that under Garver v. Public Service Company of New Mexico, supra, the complaint failed to state a cause of action. At the close of argument by both parties, the court ruled as follows:\nI will rule this way, I stated earlier the pleadings on both sides would be amended to conform with the evidence presented to this Court. I think there is a cause of action, as has been stated in the Complaint, as to the marketability to the property and the Exhibit here you are attempting to introduce goes to that property and it will be admitted into evidence * * *. [Emphasis added].\nPlaintiffs did not offer a trial amendment, either for the purpose of making admissible evidence of special damages, or to make the pleadings conform to proof of special damages. Neither did plaintiffs amend their complaint and allege special damages. Plaintiffs rested on their complaint.\nRule 15(b) may be divided into two parts. The first part applies where there is no objection to evidence introduced with respect to an issue not raised in the pleadings. Under this part, the pleading is deemed amended to conform to the proof. The first part is not applicable to this case because defendant objected to evidence on special damages.\nThe second part is applicable. It provides :\nIf evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. * * * [Emphasis added].\nWhat is meant by the phrase \u201cthe court may allow the pleadings to be amended and shall do so freely\u201d? This phrase is not explicit in its meaning. What is the procedure under which \u201cthe court may allow the pleadings to be amended\u201d? We interpret this phrase to mean that \u201cthe court may allow the pleadings to be amended\u201d when the proponent seeks or offers an amendment. See, American Institute of Marketing Sys., Inc. v. Keith, 82 N.M. 699, 487 P.2d 127 (1971) ; Groff v. Circle K. Corporation, 86 N.M. 531, 525 P.2d 891 (Ct.App.1974) ; McLean v. Paddock, 78 N.M. 234, 430 P.2d 392 (1967). Plaintiffs did not seek or offer an amendment to the complaint. The ruling of the court was \u201csua sponte\u201d. \u201cSua sponte\u201d means \u201c[o]f his own will or motion; voluntarily; without prompting or suggestion.\u201d Black\u2019s Law Dictionary 1592 (Rev. 4th ed. 1968).\nA mention of the failure of a trial court to allow an amendment \u201csua sponte\u201d appears in Matter of Valdes, 88 N.M. 338, 540 P.2d 818 (1975). This case involved the involuntary civil commitment of defendants Valdez and Garcia. Defendants claimed the trial court erred in not granting defendants a hearing to determine whether they would receive treatment consistent with their constitutional rights. The Court said:\nThis court disagrees with defendants\u2019 first contention on two grounds. First of all, defendants\u2019 pleadings contained no allegation as to the constitutional inadequacy of the treatment they received, but during trial counsel continually attempted to present evidence on this matter over the objections of the State. Such a situation is governed by Rule 15(b), Rules of Civil Procedure for the District Courts of the State of New Mexico, which states in pertinent part:\n\u201cWhen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if. they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, * * *. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended * % *\u00bb\nAs can be clearly seen from the record, the State did not give its assent, express or implied, to trial of this issue, neither party made a motion for amendment of the pleadings, nor did the court allow any such amendment svia sponte.\nThus, this issue was not properly before the trial court. * * * [Emphasis added] [88 N.M. at 340, 540 P,2d at 820].\nIn support of this statement, the Court then quoted at length from McLean v. Paddock, supra. We reduce the quotation to the following:\n\u201c * * * No trial amendment was offered either for the purpose of making such evidence and any issue presented thereby admissible or to make the1 pleadings conform to the proof. Indeed, Paddocks do not assert that a trial amendment was either offered or permitted. The author, 3 Moore\u2019s Federal Practice, p. 996, in discussing Rule 15(b), identical with our rule 15(b) (\u00a7 21-1-1(15)(b), N.M.S.A., 1953) permitting trial amendments, said \u2019where evidence has been admitted over objection and the pleadings have not been amended, no amendment can be implied.\u2019 (Citation omitted.)\u201d [Emphasis added by Court] [88 N.M. at 340, 540 P.2d at 820].\nThe phrase in the Court\u2019s opinion, \u201cnor did the court allow any such amendment sua sponte\u201d, means that the court did not sua sponte \u201cgive permission\u201d, or \u201cgive leave\u201d to defendants to amend. It did not mean \u201cnor did the court \u2018order\u2019 any such amendment sua sponte\u201d. A trial court does not have the power sua sponte to exercise its own jurisdiction of the subject matter by its own amendment of a party\u2019s pleadings. \u201cIn order that jurisdiction may be exercised, there must be a case legally before the court . . . .\u201d State v. Patten, 41 N.M. 395, 399, 69 P.2d 931, 933 (1937). In Canavan, supra, the Court said:\nIf a material element is omitted, no legal cause of action is stated, and no jurisdiction to render a judgment arises. A direct attack upon the judgment, therefore, must ordinarily be successful. * * * [17 N.M. at 508, 131 P. at 494],\n* * * * * *\n* * * [I] f, in any way, the sufficiency of the complaint had been questioned, and the plaintiff had still elected to stand upon it, a different question would be presented. [17 N.M. at 511, 131 P. at 495.]\nThe answer to the question is that the complaint must be dismissed. Titsworth Co. v. Analta, 25 N.M. 628, 186 P. 1079 (1920).\nWhen defendant objected during trial that the complaint did not state a cause of action, it raised a jurisdictional question. The trial court had a duty to resolve this issue before it could proceed further. In Re Doe, III, 87 N.M. 170, 531 P.2d 218 (Ct.App.1975). It did not do so. It tried and determined the issues in the case that were not before it. Holmes v. Faycus, 85 N.M. 740, 516 P.2d 1123 (Ct.App.1973). Plaintiffs were not entitled to recover damages.\nB. Defendant did not have a valid materialman\u2019s lien.\nDefendant claimed it had a material-man\u2019s lien on plaintiffs\u2019 property. It claimed it had furnished plaintiffs a swimming pool heater to be used on plaintiffs\u2019 premises.\nTo establish a valid materialman\u2019s lien, the burden was on defendant to prove that the heater was actually used in, and became a part of, the structure, the swimming pool. Panhandle Pipe and Steel, Inc. v. Jesko, 80 N.M. 457, 457 P.2d 705 (1969). The defendant failed in its burden of proof.\nDefendant expresses concern over the failure of the trial court to find that defendant\u2019s lien claim was properly prepared and filed in accordance with the materialmen\u2019s lien law. Sections 61-2-2 and 61-2-6, N.M.S.A.1953 (2d Repl.Vol. 9, pt. 1). Defendant did prove these facts, but this proof did not establish the validity of the lien. \u201c[Materials to be used in the construction\u201d, the words used in \u00a7 61-2-2 and in the lien claim form, has been interpreted to mean \u201cmaterials * * * actual ly used\u201d in the construction. Panhandle Pipe and Steel, Inc., supra [80 N.M. at 459, 457 P.2d 705]. The swimming pool heater was not actually used in, and did not become a part of, the swimming pool.\nWhile it can be said that the language used in the statute is deceptive to businessmen who engage in furnishing materials \u201cto be used\u201d in construction, the solution to this deception must rest with the legislature. Under the facts of this case, the mere filing of a materialman\u2019s lien did not give defendant the right to foreclose the lien. The lien was invalid from its inception because it was filed after defendant knew that the swimming pool heater was not actually used, and it was not a part of the swimming pool.\nPlaintiffs\u2019 judgment is reversed. The denial of defendant\u2019s counterclaim to foreclose its materialman\u2019s lien is affirmed. The costs of this appeal are to be divided equally between the parties.\nIT IS SO ORDERED.\nLOPEZ, J., concurs.\nHERNANDEZ, J., concurring in part, dissenting in part.", "type": "majority", "author": "SUTIN, Judge." }, { "text": "HERNANDEZ, Judge\n(concurring in part, dissenting in part).\nI concur with Part A of the opinion. I respectfully dissent from Part B on the ground that defendants had a valid materialman\u2019s lien on plaintiffs\u2019 property. As the opinion points out, the validity of a lien under \u2018 \u00a7 61-2-2, N.M.S.A.1953 (2d Repl.Vol. 9, pt. 1) is determined by the rule of Panhandle Pipe and Steel, Inc. v. Jesko, 80 N.M. 457, 459, 457 P.2d 705 (1969) that the materials furnished must actually have been installed on the premises in order for the lien to attach. Plaintiffs state in paragraph 3 of the complaint that the swimming pool heater was installed. Defendants also allege that the unit was installed (counterclaim and third-party complaint, paragraph 3). Plaintiffs never sought to amend their complaint. An unconditional admission in a pleading permits of no controversy and requires no proof. Rokita v. Germaine, 12 Misc.2d 84, 176 N.Y.S.2d 34 (1958). The trial court clearly erred in finding that the unit was never installed (Finding No. 4) and in concluding therefore that defendants never had a valid lien (Conclusion of law No. 1).\nIt should also be emphasized that the subsequent removal of materials, once they have been installed, does not affect the validity of the lien. Johnson v. Smith, 97 Cal.App. 752, 276 P. 146, 147 (Dist.Ct.App., 2d Dist., Calif., 1929).", "type": "concurring-in-part-and-dissenting-in-part", "author": "HERNANDEZ, Judge" } ], "attorneys": [ "F. L. Nohl, Albuquerque, for defendants-appellants.", "James A. Branch, Jr., Robert R. Fuentes, Branch & Branch, Albuquerque, for plaintiffs-appellees." ], "corrections": "", "head_matter": "554 P.2d 1297\nTurner W. BRANCH and Vicki Branch, his wife, Plaintiffs-Appellees, v. Gary A. MAYS and Etsco, Inc., a New Mexico Corporation, Defendants-Appellants.\nNo. 2060.\nCourt of Appeals of New Mexico.\nSept. 7, 1976.\nF. L. Nohl, Albuquerque, for defendants-appellants.\nJames A. Branch, Jr., Robert R. Fuentes, Branch & Branch, Albuquerque, for plaintiffs-appellees." }, "file_name": "0536-01", "first_page_order": 572, "last_page_order": 576 }