{ "id": 1571050, "name": "Joe C. PHILLIPS and Wyama M. Phillips, his wife, Plaintiffs-Appellants, v. UNITED SERVICE AUTOMOBILE ASSOCIATION, Michael Devlin, Jr., and T-B-L Adjusters, a partnership, Defendants-Appellees", "name_abbreviation": "Phillips v. United Service Automobile Ass'n", "decision_date": "1977-12-06", "docket_number": "No. 2959", "first_page": "325", "last_page": "332", "citations": [ { "type": "official", "cite": "91 N.M. 325" }, { "type": "parallel", "cite": "573 P.2d 680" } ], "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": "84 N.M. 211", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2766687 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/nm/84/0211-01" ] }, { "cite": "81 N.M. 600", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5367350 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/nm/81/0600-01" ] }, { "cite": "78 N.M. 627", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5325873, 5324604, 5320681 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0627-03", "/nm/78/0627-02", "/nm/78/0627-01" ] }, { "cite": "78 N.M. 548", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5322021 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/78/0548-01" ] }, { "cite": "88 N.M. 74", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2842052 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/88/0074-01" ] }, { "cite": "561 P.2d 1348", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1977, "opinion_index": 0 }, { "cite": "90 N.M. 255", "category": "reporters:state", "reporter": "N.M.", "year": 1977, "opinion_index": 0 }, { "cite": "90 N.M. 48", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2868900 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0048-01" ] }, { "cite": "76 N.M. 492", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8503136 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0492-01" ] }, { "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": "60 N.M. 379", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590421 ], "weight": 2, "year": 1955, "opinion_index": 0, "case_paths": [ "/nm/60/0379-01" ] }, { "cite": "76 N.M. 776", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8504962 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0776-01" ] }, { "cite": "89 N.M. 392", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2862774 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/89/0392-01" ] }, { "cite": "498 F.2d 1173", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 169431 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/f2d/498/1173-01" ] }, { "cite": "90 N.M. 604", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2871637 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/nm/90/0604-01" ] }, { "cite": "18 L.Ed.2d 605", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1966, "opinion_index": 0 }, { "cite": "87 S.Ct. 1495", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1966, "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": 1966, "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, "opinion_index": 0, "case_paths": [ "/nm/77/0039-01" ] }, { "cite": "78 N.M. 494", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5324762 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0494-01" ] }, { "cite": "83 N.M. 230", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5340227 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nm/83/0230-01" ] }, { "cite": "86 N.M. 399", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2827893 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/86/0399-01" ] }, { "cite": "382 F.2d 378", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2076062 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/f2d/382/0378-01" ] }, { "cite": "507 F.2d 533", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 130074 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/f2d/507/0533-01" ] }, { "cite": "70 P. 568", "category": "reporters:state_regional", "reporter": "P.", "year": 1902, "pin_cites": [ { "page": "570" } ], "opinion_index": 0 }, { "cite": "11 N.M. 464", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 11272061 ], "year": 1902, "pin_cites": [ { "page": "475" } ], "opinion_index": 0, "case_paths": [ "/nm/11/0464-01" ] }, { "cite": "87 N.M. 5", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2836436, 2836340, 2836575 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/nm/87/0005-02", "/nm/87/0005-01", "/nm/87/0005-03" ] }, { "cite": "87 N.M. 19", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2829905 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/nm/87/0019-01" ] }, { "cite": "80 N.M. 584", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5364475 ], "weight": 2, "year": 1969, "opinion_index": 1, "case_paths": [ "/nm/80/0584-01" ] }, { "cite": "529 F.2d 490", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10590735 ], "year": 1976, "opinion_index": 1, "case_paths": [ "/f2d/529/0490-01" ] }, { "cite": "516 F.2d 283", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1132861 ], "year": 1974, "opinion_index": 1, "case_paths": [ "/f2d/516/0283-01" ] }, { "cite": "91 Nev. 622", "category": "reporters:state", "reporter": "Nev.", "case_ids": [ 8558921 ], "weight": 4, "year": 1975, "pin_cites": [ { "page": "625" }, { "page": "654" } ], "opinion_index": 1, "case_paths": [ "/nev/91/0622-01" ] }, { "cite": "465 F.2d 234", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 714683 ], "year": 1972, "opinion_index": 1, "case_paths": [ "/f2d/465/0234-01" ] }, { "cite": "78 N.M. 544", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5327189 ], "weight": 2, "year": 1967, "opinion_index": 1, "case_paths": [ "/nm/78/0544-01" ] }, { "cite": "38 N.M. 237", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1559065 ], "weight": 2, "year": 1934, "opinion_index": 1, "case_paths": [ "/nm/38/0237-01" ] }, { "cite": "97 L.Ed. 469", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1953, "opinion_index": 1 }, { "cite": "344 U.S. 443", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11300626 ], "weight": 2, "year": 1953, "pin_cites": [ { "page": "537" }, { "page": "425" } ], "opinion_index": 1, "case_paths": [ "/us/344/0443-01" ] }, { "cite": "84 N.M. 16", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2764748 ], "weight": 2, "year": 1972, "opinion_index": 1, "case_paths": [ "/nm/84/0016-01" ] } ], "analysis": { "cardinality": 1015, "char_count": 22123, "ocr_confidence": 0.811, "pagerank": { "raw": 1.336301574522581e-07, "percentile": 0.6301882851085141 }, "sha256": "a487eaa8ca7e9a9b38aec7551cd88afaaae3efc1776aebc0f7904d80a84519e8", "simhash": "1:9726d7171725bd72", "word_count": 3682 }, "last_updated": "2023-07-14T15:07:42.064818+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HERNANDEZ, J., concurs.", "SUTIN, J., specially concurring." ], "parties": [ "Joe C. PHILLIPS and Wyama M. Phillips, his wife, Plaintiffs-Appellants, v. UNITED SERVICE AUTOMOBILE ASSOCIATION, Michael Devlin, Jr., and T-B-L Adjusters, a partnership, Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nLOPEZ, Judge.\nThe plaintiffs filed suit against defendant, United Service Automobile Association (hereinafter United), for breach of contract. Summary judgment was granted in favor of the defendant. Plaintiffs appeal. We reverse.\nThe plaintiffs\u2019 sole point for reversal is that the trial court erred in granting summary judgment, inasmuch as there are genuine issues of material fact to be decided. Defendant United contends that the suit is barred by res judicata, collateral estoppel, merger and satisfaction or election of remedies, or in the alternative that defendant is entitled to the summary judgment as a matter of law.\nIn order to understand this opinion fully, a brief historical background of this case is necessary.\nPlaintiffs\u2019 dilemma started on June 9, 1971, when Steven Smith, a seven year old neighbor, set fire to the plaintiffs\u2019 chicken coop, causing damage to their pens, medicines, feeds, equipment and livestock.\nSteven Smith\u2019s parents had at the time a homeowners insurance policy issued by the defendant, United, which plaintiffs believed would cover all the damages.\nImmediately after the fire occurred, negotiations for settlement commenced with the defendant through its agent T-B-L Adjusters and Mike Devlin. Plaintiffs al-' leged that the actual damage to their property was $25,812.59; that Mr. Devlin arranged for an estimate to be submitted by G.P.A. General Contractor, Inc. for a total of $20,162.46; and further that Mr. Devlin agreed that United would pay a total settlement of the cost of repair and construction of their destroyed property if they agreed to reduce their claim for destroyed livestock by $6,160.00.\nWhen the contractor finished work on the plaintiffs\u2019 property, he demanded payment from the plaintiffs. The defendant refused to pay the settlement which plaintiffs believed the defendant had agreed to pay. Materialmen\u2019s liens were subsequently filed by the contractor because of plaintiffs\u2019 inability to pay. Upon this refusal by the defendant to pay the settlement, the plaintiffs filed suit in Dona Ana County. Suit was filed originally against Steven Smith for $25,812.59 for the fire loss on the theory of negligence. By amendment, the plaintiffs joined defendant and its agents, Mike Devlin and T-B-L Adjusters, claiming breach of contract.\nThe trial court justifiably severed the claims in the first case against Steven Smith from the claim against the insurance company to avoid alerting the jury to the fact of insurance, thereby prejudicing the jury award for the young boy\u2019s negligence. The jury awarded the plaintiffs $3,000.00. The verdict and the judgment entered accordingly was appealed to this Court and affirmed. See Phillips v. Smith, 87 N.M. 19, 528 P.2d 663 (Ct.App.1974), cert. denied, 87 N.M. 5, 528 P.2d 649 (1974). This appeal concerns the severed claim against the insurance company based on an entirely different cause of action, breach of contract.\nDuring August, 1975, the defendant filed a motion to dismiss or in the alternative a motion for summary judgment on the basis that plaintiffs\u2019 claim against the defendant, United, was barred by collateral estoppel or res judicata because of the trial and judgment against Steven Smith.\nThe trial court granted summary judgment in favor of the defendant on July 12, 1976. Following an appeal by plaintiffs to this Court which was dismissed because of lack of a \u201cfinal\u201d order, the summary judgment was amended by the trial court to include the requisite language required for a final judgment under Rule 54(b) of the New Mexico Rules of Civil Procedure, [\u00a7 21\u20141\u20141(54)(b), N.M.S.A.1953 (Repl. Vol. 4, Supp.1975)]. Such amended summary judgment was entered by the trial court on May 14, 1977. Thus, this appeal arose.\n(1) Plaintiffs\u2019 present action is not barred.\nDefendant United argues that the judgment against Steven Smith constitutes a bar against plaintiffs\u2019 present action. The issue in the case against Steven Smith was based on negligence. The issue in the case at bar is based on misrepresentation of facts and breach of contract by the defendant acting through its agents, T-B-L Adjusters and Mike Devlin.\nThe law of res judicata and collateral estoppel is well established in New Mexico.\n\u201cTo make a matter res judicata there must be a concurrence of the four conditions following, viz: First, identity of the subject-matter; second, identity of cause of action; third, identity of persons and parties; and, fourth, identity in the quality of the persons for or against whom claim is made.\u201d\nLindauer Mercantile Co. v. Boyd, 11 N.M. 464, 475, 70 P. 568, 570 (1902).\nTo constitute a bar under the doctrine of res judicata, the action in which judgment was entered and in which it is asserted as a bar must have been between the same parties or their privies and the cause of action must have been the same. Harris v. Quinones, 507 F.2d 533 (10th Cir. 1974); Glass v. United States Rubber Company, 382 F.2d 378 (10th Cir. 1967); Buhler v. Marrujo, 86 N.M. 399, 524 P.2d 1015 (Ct.App.1974); Miller v. Miller, 83 N.M. 230, 490 P.2d 672 (1971); Employers\u2019 Fire Insurance Company v. Welch, 78 N.M. 494, 433 P.2d 79 (1967); State v. Nance, 77 N.M. 39, 419 P.2d 242 (1966) cert. denied, 386 U.S. 1039, 87 S.Ct. 1495, 18 L.Ed.2d 605 (1966). It is clear in the instant case that the concurrent conditions for res judicata have not been met. Neither the parties nor the cause of action are the same. The mere fact that the defendant was originally joined in the complaint with Steven Smith as a party defendant is not sufficient to make it a privy of Steven Smith.\nA review of the pleadings and judgments entered in the two cases discloses no identity of subject matter, no identity of cause of action, and no identity of persons and parties. Plaintiffs here are merely pursuing the course opened to them by the original severance by the trial court. To penalize them for so doing would be to expand the doctrine of res judicata into outer space.\nDefendant also raises the defense of collateral estoppel. Collateral estoppel means that when an issue of ultimate fact has been decided by a valid judgment, that issue cannot be litigated again between the same parties. State v. Rogers, 90 N.M. 604, 566 P.2d 1142 (1977). This case does not involve a second action between the same parties based on different grounds. The first action, based upon negligence, was between the plaintiffs and a small boy. This case, based upon breach of contract, is between plaintiffs and an insurance company. Plaintiffs have in no way had a full and fair opportunity for judicial resolution of the issues presented in this case. Brown v. De Layo, 498 F.2d 1173 (10th Cir. 1974). Defendant\u2019s claim that this issue has been actually litigated and determined in the original action flies in the face of what the lower court intended by severing the two causes of action. Collateral estoppel does not apply.\nThe defendant further argues satisfaction of judgment, merger and election of remedies. As to satisfaction of judgment and merger, these points are without merit. No copy of any satisfaction of judgment or a copy of any release is on record. It was incumbent upon the defendant to enter these documents into the present record for our review, if any such documents exist. Failure to do so precludes any review of these issues by this Court.\nDefendant\u2019s further defense of election of remedies is equally inapplicable. The doctrine of election of remedies is a rule of procedure or judicial administration. Buhler v. Marrujo, supra. It is not a defense, especially in light of the fact that plaintiffs did not fail to join the defendant; rather the lower court severed the claim against defendant from the claims against Steven Smith.\nThe plaintiffs appeal the final amended order granting summary judgment to the defendant. Defendant objects to this amended summary judgment for the first time in his brief. Defendant failed to object earlier to the amended final judgment granting summary judgment and he filed no appeal from it. As this issue is raised for the first time on appeal, this Court cannot consider it. Rule 11, Rules Governing Appeals, \u00a7 21-12-11, N.M.S.A. 1953 (Supp.1975). See Wiseman v. Arrow Freightways, Inc., 89 N.M. 392, 552 P.2d 1240 (Ct.App.1976); Yrisarri v. Wallis, 76 N.M. 776, 418 P.2d 852 (1966).\n(2) The trial court erred in granting summary judgment.\nThe issue ultimately in dispute in this case is whether the defendant, acting through its agents, T-B-L Adjusters and Mr. Devlin, entered into an enforceable agreement to pay the plaintiffs $20,162.46 as a settlement of their claim for the loss of their properties. The trial court granted the defendant\u2019s motion for summary judgment.\nSummary judgment is such a drastic remedy that it is to be used with great caution. Zengerle v. Commonwealth Insurance Co. of N. Y., 60 N.M. 379, 291 P.2d 1099 (1955). The standard to be applied in determining whether a motion for summary judgment should be granted is well established in New Mexico. Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972); Institute for Essential Housing, Inc. v. Keith, 76 N.M. 492, 416 P.2d 157 (1966); Withrow v. Woozencraft, 90 N.M. 48, 559 P.2d 425 (Ct.App.1977), cert. denied, 90 N.M. 255, 561 P.2d 1348 (1977); First Nat. Bk., Albuquerque v. Nor-Am Agr. Prod., Inc., 88 N.M. 74, 537 P.2d 682 (Ct.App.1975).\n\u201cIt is firmly established in this jurisdiction that summary judgment is properly granted only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.\u201d Archie v. Smith, 78 N.M. 548, 434 P.2d 73 (Ct.App.1967), cert. denied, 78 N.M. 627, 435 P.2d 1009 (1967).\nPlaintiffs contend that there are genuine issues of fact remaining regarding breach of contract which preclude a summary judgment. The basic issues of material fact involved here turn upon Devlin\u2019s authority to create a contract of settlement between plaintiffs and the insurance company.\nSeveral other questions of fact enter into this question: whether Devlin, as the defendant\u2019s agent, offered plaintiffs $20,162.46 in settlement of plaintiff\u2019s claims, or, in the alternative, whether he received such an offer from plaintiffs which he accepted on behalf of his principal; whether Devlin had the authority to authorize the contractor to repair the damage caused to plaintiffs\u2019 property; and whether he, in fact, so authorized the repair.\n\u201cIn deciding a summary judgment motion, the court must view the matters presented and considered by it in the most favorable aspect they will bear in support of the right to a trial on the issues, and all reasonable inferences must be construed in favor of the party against whom the summary judgment is sought. . \u201d [Emphasis added].\nJacobson v. State Farm Mutual Automobile Ins. Co., 81 N.M. 600, 471 P.2d 170 (1970).\nWe will summarize the facts disclosed by the pleadings and supporting affidavits construing all reasonable inferences in favor of the plaintiffs.\nPlaintiffs\u2019 supporting affidavits raise the issue of Devlin\u2019s authority. Plaintiffs\u2019 supporting affidavits state: that Devlin asked them to prepare a list of destroyed property; that Devlin told plaintiffs that defendant would pay $20,162.46 if they would reduce their claim for lost livestock; that Devlin told them there would be no trouble paying their claim as reduced; and that Devlin sent the contractor to plaintiffs\u2019 premises and authorized the repairs. Plaintiffs further state in their affidavits that LaCroix of the home office, told plaintiffs that payments would be made.\nThe defendant argues that Devlin and T-B-L were only employed to investigate the claim and had no authority to bind the defendant. The defendant further argues that Devlin only had authority to settle for $7,500.00 and denies any authority of its agent to allow any repairs to be made. The original affidavit of the contractor denied that he was authorized by Devlin, but he later contradicted himself in another affidavit.\nAn issue of authority whether actual or apparent is usually one of fact. Pribble v. Aetna Life Insurance Company, 84 N.M. 211, 501 P.2d 255 (1972); 3 Couch on Insurance 2d, \u00a7 26.68.\nWe are unwilling to rule on whether Mr. Devlin had or did not have actual or apparent authority as a matter of law. Based upon the record before us, genuine issues of fact exist relating to Devlin\u2019s and T-B-L\u2019s authority to bind the defendant in a settlement with the plaintiff.\nSince we conclude that the prior judgment (87 N.M. 19, 528 P.2d 663) does not bar the present action and that there are genuine issues of material fact regarding a possible breach of contract, the summary judgment must be reversed.\nSummary judgment is reversed and the cause is remanded for proceedings consistent with this opinion.\nIT IS SO ORDERED.\nHERNANDEZ, J., concurs.\nSUTIN, J., specially concurring.", "type": "majority", "author": "LOPEZ, Judge." }, { "text": "SUTIN, Judge\n(specially concurring).\nI specially concur.\nJudge Lopez\u2019 opinion decides that plaintiffs\u2019 present action is not barred because res judicata, collateral estoppel, satisfaction of judgment, merger and election of remedies, being defenses raised by United Service Automobile Association (United), are not effective. United\u2019s claims are affirmative defenses to plaintiffs\u2019 claim for relief. Section 21-1-1(8)(c), N.M.S.A., 1953 (Repl. Vol. 4). They are not issues on this appeal.\nIn the order that sustained United\u2019s motion for summary judgment, the trial court found:\n1. That the motion of defendant United Service Association is well taken and should be granted.\nHere, again, we have no knowledge of the reasons why the summary judgment was granted. Plaintiffs point to five hotly disputed questions of fact. If these issues of fact had been presented to the trial court in oral argument, with requested findings submitted, and findings made, it would have assisted this Court on the precise issues involved in this appeal. Constant repetition of this advice has been ineffective because the Supreme Court arbitrarily decided that findings are unnecessary when summary judgment is entered. Garrett v. Nissen Corporation, 84 N.M. 16, 498 P.2d 1359 (1972). This does not mean, however, that a district judge is denied the right to state the reasons for granting summary judgment. This is not done because district judges feel secure in silence.\nIn civil cases, a proceeding to obtain summary judgment is perfunctory. A motion is filed, arguments are made, judgment is entered and an appeal taken. The record is silent on the entire proceedings that ended in final judgment. Silence is Not Golden. A trial judge should lay his cards on the table. Appellate courts should do the same. A record of the hearing should be taken and presented to this Court on appeal. It is a serious matter because summary judgment throws a party out of court. On appeal, in the absence of a record, we are told what the hotly contested issues of fact were below, what arguments were made, what comments were made by the court and the basis upon which the entry of the final judgment was made. We should be given the tools with which to complete the job.\nIn my opinion, a final summary judgment is equivalent to a final judgment entered by the trial court in a case heard without a jury. Rule 52(B) of the Rules of Civil Procedure [21\u20141\u20141(52)(B), N.M.S.A.1953 (Repl. Vol. 4)] should be followed. On review, this Court will not have to search a haystack for a needle. \u201cHe who must search a haystack for a needle is likely to end up with the attitude that the needle is not worth the search.\u201d Brown v. Allen, 344 U.S. 443, 537, 73 S.Ct. 397, 425, 97 L.Ed. 469 (1953), Justice Jackson, concurring.\nOn appeal, if we know precisely what the contested issues of fact were below, our review would be a simple undertaking.\nAll that we know from the final order is \u201cthat the claim, cause of action and complaint of the plaintiffs\u201d were dismissed with prejudice. It sounds like \u201cFor plaintiffs, for whom the three bells toll.\u201d \u201cA civil action is commenced by filing a complaint with the court.\u201d Section 21-1-1(3). For the chameleon like nature of the phrase \u201ccause of action,\u201d see People\u2019s Mercantile Co. v. Farmer\u2019s Cotton Finance Corp., 38 N.M. 237, 31 P.2d 252 (1934).\nA. This Court has jurisdiction of this appeal.\nUnited\u2019s Supplementary Statement of Proceedings uses 12 pages to note lack of jurisdiction to hear this appeal. United\u2019s position is based upon procedures that occurred in a prior appeal of this case on summary judgment.\nOn July 12, 1976, the trial court first granted United summary judgment. In the same order, it denied Devlin and T-B-L the right to summary judgment. On July 23, 1976, plaintiffs gave notice of appeal. On September 27, 1976, plaintiffs filed their brief in chief. On October 1, 1976, United filed a motion to dismiss the appeal. One of the points raised was:\nTo dismiss, as otherwise non-appealable because the Order did not then include the magic words \u201cthere is no just reason for delay.\u201d Section 21 \u2014 1\u20141(54)(b)(1), N.M.S.A.1953 (Repl. Vol. 4, 1975 Supp.).\nPlaintiffs failed to call to this Court\u2019s attention that Rule 54(b)(2), not 54(b)(1), supra, was applicable; that the magic words were not necessary where multiple parties were involved. Nevertheless, this Court on October 15, 1976 erroneously granted United\u2019s motion to dismiss the appeal for lack of jurisdiction, citing in support thereof, Marquez v. Wylie, 78 N.M. 544, 434 P.2d 69 (1967). Marquez was not in point. It did not involve Rule 54(b). This case was remanded to the district court. This Court erred in dismissing the first appeal.\nThe mandate provided that \u201cthe cause is remanded to you for any further proceedings consistent with said decision.\u201d On remand, the case below rested in the district court in the same position it had prior to the first appeal- \u2014 with an appealable order that was held non-appealable.\nOn October 21, 1976, shortly after receipt of this Court\u2019s Mandate, plaintiffs filed a motion in the district court to amend the order to include the magic words. On March 14, 1977, the trial court in its discretion granted the motion, and on the same day entered the amended order from which this appeal was taken. This Court has jurisdiction to hear this \u201cfinal\u201d order on the merits.\nUnited asserts that it objected to the order that granted plaintiffs\u2019 motion to amend the \u201cunappealable order.\u201d This does not appear of record. However, we accept United\u2019s assertion that it objected. This probably caused a delay of five months in the entry of the \u201cfinal\u201d order from which this appeal was taken.\nUnited now contends that a delay of eight months from the date of the original order, \u201csimply as an accommodation to appellants herein, represents an abuse of discretion of the trial court.\u201d Such a contention offends the conduct and reputation of the district judge. We need only turn to a maxim of reverence: \u201cDe Fide et Officio Judi\u00e9is non recipitur Quaestio, sed de Scientia sive sit Eror Juris sive Facti.\u201d (\u201cThe bona fides and honesty of purpose of a judge cannot be questioned, but his decision may be impugned for error of law or of fact.\u201d) Broom, Selections of Legal Maxims, 60 (5th Am.Ed.1864). United questions the purpose of the district judge in allowing plaintiffs to amend even though the district judge awarded it summary judgment.\nUnited\u2019s cited authority holds that where the appeal is dismissed, and for three months, plaintiffs made no effort to obtain a Rule 54(b) determination, the making of a determination and entry of judgment one year after the entry of the order appealed from, is an abuse of discretion. Schaefer v. First Nat\u2019l Bank of Lincolnwood, 465 F.2d 234 (7th Cir. 1972). This case is not applicable. Plaintiffs were not negligent in seeking an amended order.\nSchaefer was not followed in Williams v. City of North Las Vegas, 91 Nev. 622, 541 P.2d 652 (1975). The court said:\nIn the interest of preserving, when justice requires, a litigant\u2019s right to \u201chis day in court,\u201d we would not set a specific period of time within which one must seek a Rule 54(b) order or lose his right to interlocutory appeal. [91 Nev. at 625, 541 P.2d at 654]\nIt would be helpful on appeal if the district court would make a brief reasoned statement in support of its determination. We would then be spared, if raised, a determination of whether the trial court abused its discretion in this troublesome piecemeal appeal. Gumer v. Shearson, Hammill & Co., Inc., 516 F.2d 283 (2nd Cir. 1974). \u201cOn review, this court may examine whether the district court\u2019s conclusion that there was no just reason for delay was an abuse of the trial court\u2019s discretion.\u201d United Bank of Pueblo v. Hartford Acc. & Indem. Co., 529 F.2d 490 (10th Cir. 1976).\nIn the instant case, the trial court did not abuse its discretion. It determined that plaintiffs, if allowed, should have the right to pursue their claim against three defendants in one trial.\nB. Summary judgment was erroneous.\nUnited\u2019s lengthy dissertation on the propriety of the summary judgment centers on whether Devlin had express or apparent authority to bind United to a settlement or to authorize repairs to plaintiffs\u2019 property. Reliance is had primarily on Clark v. Foremost Insurance Co., 80 N.M. 584, 458 P.2d 836 (1969). Clark was not a summary judgment case. Trial was had before the court. \u201cAuthority to bind\u201d was an issue of fact. The court found that there was no settlement agreement between Clark and defendant\u2019s adjuster due to lack of authority, either actual, implied or apparent on the part of the adjuster to settle with Clark on the basis of the claimed agreement.\nIn the instant case, an issue of fact exists.", "type": "concurrence", "author": "SUTIN, Judge" } ], "attorneys": [ "Neil E. Weinbrenner, Bivins, Weinbrenner & Regan, P. A., Las Cruces, Malcolm McGregor, El Paso, Tex., for plaintiffs-appellants.", "Edward E. Triviz, Las Cruces, for defendants-appellees." ], "corrections": "", "head_matter": "573 P.2d 680\nJoe C. PHILLIPS and Wyama M. Phillips, his wife, Plaintiffs-Appellants, v. UNITED SERVICE AUTOMOBILE ASSOCIATION, Michael Devlin, Jr., and T-B-L Adjusters, a partnership, Defendants-Appellees.\nNo. 2959.\nCourt of Appeals of New Mexico.\nDec. 6, 1977.\nNeil E. Weinbrenner, Bivins, Weinbrenner & Regan, P. A., Las Cruces, Malcolm McGregor, El Paso, Tex., for plaintiffs-appellants.\nEdward E. Triviz, Las Cruces, for defendants-appellees." }, "file_name": "0325-01", "first_page_order": 361, "last_page_order": 368 }