{ "id": 1573189, "name": "SANTA FE NATIONAL BANK, as Conservator of the Estate of Zachariah Zebadee Lee Wilson, an infant, Plaintiff-Appellant, v. Charles E. GALT, Jr., M.D., Catherine Armstrong, M.D., and Carlsbad Regional Medical Center, Defendants-Appellees", "name_abbreviation": "Santa Fe National Bank v. Galt", "decision_date": "1979-11-15", "docket_number": "No. 4079", "first_page": "111", "last_page": "116", "citations": [ { "type": "official", "cite": "94 N.M. 111" }, { "type": "parallel", "cite": "607 P.2d 649" } ], "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": "47 L.R.A.(N.S.) 744", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "year": 1914, "opinion_index": 0 }, { "cite": "133 P. 1063", "category": "reporters:state_regional", "reporter": "P.", "year": 1913, "opinion_index": 0 }, { "cite": "17 N.M. 694", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 208764 ], "year": 1913, "opinion_index": 0, "case_paths": [ "/nm/17/0694-01" ] }, { "cite": "46 N.M. 159", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563076 ], "weight": 2, "year": 1942, "opinion_index": 0, "case_paths": [ "/nm/46/0159-01" ] }, { "cite": "89 N.M. 420", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2866099 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/nm/89/0420-01" ] }, { "cite": "89 N.M. 468", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2866675 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/nm/89/0468-01" ] }, { "cite": "91 N.M. 279", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571179 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/nm/91/0279-01" ] }, { "cite": "74 N.M. 754", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2797307 ], "weight": 3, "year": 1965, "opinion_index": 0, "case_paths": [ "/nm/74/0754-01" ] }, { "cite": "53 N.M. 116", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580730 ], "weight": 2, "year": 1949, "opinion_index": 0, "case_paths": [ "/nm/53/0116-01" ] }, { "cite": "64 N.M. 342", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5346259 ], "weight": 3, "year": 1958, "opinion_index": 0, "case_paths": [ "/nm/64/0342-01" ] }, { "cite": "75 N.M. 741", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5377318 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/75/0741-01" ] }, { "cite": "54 L.Ed.2d 95", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1977, "opinion_index": 0 }, { "cite": "98 S.Ct. 121", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1977, "opinion_index": 0 }, { "cite": "434 U.S. 834", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6269058, 6268547, 6267367, 6266504, 6267921, 6266782, 6267092, 6267605, 6268211, 6268791, 6266238, 6269311 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/us/434/0834-11", "/us/434/0834-09", "/us/434/0834-05", "/us/434/0834-02", "/us/434/0834-07", "/us/434/0834-03", "/us/434/0834-04", "/us/434/0834-06", "/us/434/0834-08", "/us/434/0834-10", "/us/434/0834-01", "/us/434/0834-12" ] }, { "cite": "561 P.2d 468", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2874306 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nm/90/0195-01" ] }, { "cite": "53 N.M. 345", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580784 ], "weight": 2, "year": 1949, "opinion_index": 0, "case_paths": [ "/nm/53/0345-01" ] }, { "cite": "85 N.M. 786", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2776045 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/nm/85/0786-01" ] }, { "cite": "53 N.M. 44", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580782 ], "weight": 2, "year": 1948, "opinion_index": 0, "case_paths": [ "/nm/53/0044-01" ] }, { "cite": "74 N.M. 567", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2802869 ], "weight": 2, "year": 1964, "opinion_index": 1, "case_paths": [ "/nm/74/0567-01" ] }, { "cite": "79 N.M. 377", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2745839 ], "weight": 2, "year": 1968, "opinion_index": 1, "case_paths": [ "/nm/79/0377-01" ] }, { "cite": "91 N.M. 31", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571112 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/91/0031-01" ] } ], "analysis": { "cardinality": 786, "char_count": 16447, "ocr_confidence": 0.807, "pagerank": { "raw": 6.848920546118236e-08, "percentile": 0.4174036787472938 }, "sha256": "b25e5d87215dfd088549296a83932c997b5969f6b8913371b79bb0c83a0b3b53", "simhash": "1:9ce1162e12a51cfd", "word_count": 2654 }, "last_updated": "2023-07-14T18:18:16.712923+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WALTERS, J., concurs.", "SUTIN, J., dissents." ], "parties": [ "SANTA FE NATIONAL BANK, as Conservator of the Estate of Zachariah Zebadee Lee Wilson, an infant, Plaintiff-Appellant, v. Charles E. GALT, Jr., M.D., Catherine Armstrong, M.D., and Carlsbad Regional Medical Center, Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nZachariah was born in February, 1976. Although the record before us does not contain the order, it is undisputed that the Santa Fe District Court, in Probate Cause 78-92, appointed the plaintiff Bank as Zachariah\u2019s conservator in November, 1978. Either the same day, or shortly after the conservatorship order (the District Court filing stamps cannot be read), the Bank, as conservator, filed a complaint for damages against the defendants which the Bank asserts to be an action for negligence and malpractice. The damage suit was filed in Santa Fe District Court. The trial court dismissed the damage suit for lack of venue; the Bank appeals. The factual basis for the venue question is that the alleged negligence and malpractice occurred in\nSANTA FE NAT. BANK v. GALT H3 Cite as 94 N.M. Ill Eddy County, Zachariah and his parents are residents of Eddy County; none of the defendants are residents of Santa Fe County. We (1) summarily answer several contentions; (2) discuss the collateral attack on the conservatorship; and (3) discuss the propriety of Santa Fe District Court venue for the damage suit. Contentions Summarily Answered [1] (a) The Bank contends that the cumulative effect of defendants\u2019 actions constitutes a waiver by them of the venue issue. The actions relied on include obtaining the continuance of a hearing scheduled in district court, filing objections to interrogatories and requests for admissions, participating in depositions, and filing a motion for a protective order. The initial pleading of defendants Armstrong and the Medical Center was a motion to dismiss for improper venue. Defendant Galt\u2019s answer denied the allegation in the complaint that the Bank was a conservator; his amended answer restated this denial and asserted as an affirmative defense that venue did not lie in Santa Fe District Court. There was no waiver. See Rule of Civ.Proc. 12(b) and (h); Heron v. Gaylor, 53 N.M. 44, 201 P.2d 366 (1948). [2] (b) Admissions in the briefs establish that after the trial court dismissed the Santa Fe District Court damage action, the Bank joined with Zachariah\u2019s parents to file a damage suit in the District Court of Eddy County. The Bank\u2019s portion of the Eddy County suit sought relief on the same basis asserted in the Santa Fe District. Court. Defendants contend that the Bank\u2019s suit in Eddy County constituted a waiver of any error as to the venue decision by the Santa Fe District Court. These facts are insufficient to establish waiver as a matter of law. See Rule of Civ.App.Proc. 11 and the definition of waiver in Cooper v. Albuquerque City Commission, 85 N.M. 786, 518 P.2d 275 (1974). [3] (c) Defendants contend the trial court\u2019s venue decision should be affirmed because the propriety of venue in Santa Fe County for the damage action depends entirely on the selection of the Bank as the conservator and the conservator\u2019s \u201csole function is to create venue in Santa Fe County.\u201d Defendants assert that \u201ccreating\u201d a party solely for purposes of venue is improper under New Mexico law. They rely on language in Teaver v. Miller, 53 N.M. 345, 208 P.2d 156 (1949), which indicates a party whose residence determines venue must be a necessary party. The Bank responds that it is the real party in interest because it is a conservator and under \u00a7 45-5-420, N.M.S.A.1978 is vested with title to all property of Zachariah, the protected person. This issue does not involve the propriety of venue if the Bank\u2019s conservatorship was proper. The claim is that the conservator-ship was obtained solely to establish a Santa Fe County venue and, thus, was a sham. Disregarding, at this point, the collateral attack on the conservatorship proceedings, the question of whether such proceedings were a sham was a factual question. The trial court made no findings; it did not find that the conservatorship proceedings were undertaken solely to establish venue in Santa Fe County. The trial court\u2019s oral remarks (although not establishing the trial court\u2019s decision, see Getz v. Equitable Life Assur. Soc. of United States, 90.N.M. 195, 561 P.2d 468 (1977), cert, denied, 434 U.S. 834, 98 S.Ct. 121, 54 L.Ed.2d 95 (1977)), indicate its venue decision was based solely on its interpretation of \u00a7 45-5-403, N.M.S. A.1978. The issue not having been decided by the trial court, it is not before us for review. Rule of Civ.App.Proc. 11. [4](d) Defendants contend that even \u201cif venue were technically correct in Santa Fe County, the ruling of the trial court should be affirmed because of the application of the doctrine of forum non conveniens.\u201d The Bank suggests this contention is disposed of by Torres v. Gamble, 75 N.M. 741, 410 P.2d 959 (1966). We do not consider these arguments, nor do we consider the effect of \u00a7 45-l-303(B) and (C), N.M.S. A.1978 upon the doctrine of forum non conveniens, if such doctrine exists in New Mexico. The trial court did not dismiss the\nSanta Fe County damage suit on the basis of the doctrine. The issue is not before us for review. Rule of Civ.App.Proc. 11.\nCollateral Attack on the Conservatorship\nThe defendants assert that the appointment of the conservator was void. The Bank contends that defendants lack standing to make such a claim because it is a collateral attack, in the damage suit, on the conservatorship proceedings, a separate action. We do not reach the \u201cstanding\u201d question; that is, we do not consider whether defendants could make a collateral attack, but consider the sufficiency of the attack made.\nBonds v. Joplin\u2019s Heirs, 64 N.M. 342, 328 P.2d 597 (1958) followed the rule stated in McDonald v. Padilla, 53 N.M. 116, 202 P.2d 970 (1949). McDonald states:\nThe rule is that as against a collateral attack, a judgment is valid unless the contrary appears in the judgment roll, and the omission of every step in the proceedings except the entry of the judgment, does not overcome the conclusive presumption of regularity of a judgment when collaterally attacked, if the record does not affirmatively disclose the omissions.\nIn Bonds, supra, a quiet title suit, there was a collateral attack upon a prior proceeding to sell a real estate interest of a minor. The attack was successful because the record of the sale proceedings affirmatively showed noncompliance with statutory procedures for selling the minor\u2019s real estate.\nIn this case, we do not know whether the record of the conservatorship proceedings affirmatively discloses noncompliance with statutory provisions for appointment of a conservator. The record before us does not include the file of the conservatorship proceedings. The only portion of the conservatorship proceedings before us is a copy of the petition seeking appointment of a conservator.\nSections 45-5-401 through 45-5-432, N.M.S.A.1978 (a portion of the Probate Code) pertain to conservatorship for protecting the property of minors and persons under disability. Section 45-5 \u2014 404(A)(2), supra, authorized the parents to petition for the appointment of a conservator for Zachariah. They did so petition. Section 45-5-403 states the venue for proceedings under \u00a7\u00a7 45-5-401 through 45-5-432, supra. The petition of the parents, under oath, states that the parents waive venue, as provided in \u00a7 45-5-403, supra, and stipulate to venue in the Santa Fe District Court.\nThe defendants\u2019 claim is that the parents\u2019 waiver was not a valid waiver of the venue provisions of \u00a7 45-5-403, supra. We have no basis to review this collateral attack on the conservatorship proceedings. In the absence of the record of the conservatorship proceedings, we cannot determine whether that record affirmatively shows noncompliance with statutory provisions for establishing a conservatorship.\nPropriety of Santa Fe District Court Venue\nUnder the general venue statute, venue in Santa Fe District Court was proper for the Bank\u2019s damage claim as conservator. Section 38-3-1(A), N.M.S.A.1978; Chavez v. Lowe, 74 N.M. 754, 398 P.2d 622 (1965). Is the general venue statute applicable?\nSection 45-5-403, states:\nVenue for proceedings under Sections 5-401 through 5-432 [45-5-401 to 45-5-432 NMSA 1978] is:\nA. in the judicial district in New Mexico where the person to be protected resides whether or not a guardian has been appointed in another judicial district\nConflicts between general and specific statutes are resolved by giving effect to the specific statute. State ex rel. Bird v. Apodaca, 91 N.M. 279, 573 P.2d 213 (1977); New Mexico Bureau of Rev. v. Western Elec. Co., 89 N.M. 468, 553 P.2d 1275 (1976).\nSection 45-5-403, supra, is a specific venue statute. Does it conflict with \u00a7 38-3-1(A), supra?\nIn this case, the question of a conflict does not involve the conservatorship proceedings; defendants\u2019 collateral attack on the appointment of the Bank, as conservator, was insufficient. The question of a conflict involves the venue of the damage action filed by the Bank. Does \u00a7 45-5-403, supra, apply to the damage action?\nSection 45-5-403, supra, by its terms, applies to \u201cproceedings\u201d under \u00a7\u00a7 45-5 \u2014 401 through 45-5-432, supra. Those sections deal with conservatorship matters. Section 45-5^424(C) states:\nA conservator, acting reasonably in efforts to accomplish the purpose for which he was appointed, may act without court authorization or conformation, to:\n* * * * * *\n(24) prosecute or defend actions, claims or proceedings in any jurisdiction for the protection of estate assets and of the conservator in the performance of his duties * * *.\nDefendants contend that the Santa Fe District Court damage suit was a \u201cproceeding\u201d instituted under the authority of \u00a7 45-5-424(C)(24), supra, and thus the venue of the proceeding is governed by \u00a7 45-5-403, supra. Defendants\u2019 contention is too broad. Section 45-5-424(C)(24), supra, simply states that a conservator \u201cmay prosecute and defend litigation in or out of the state.\u201d 2 Wellman, Uniform Probate Code Practice Manual at 539 (2d ed. 1977). If \u00a7 45-5 \u2014 403, supra, controls the venue of suits brought under the authority of \u00a7 45-5-424(C)(24), supra, problems exist as to the venue of suits by the conservator against out-of-state defendants.\nWellman, supra, at 502-503, indicates that the venue restrictions of \u00a7 45-5-403, supra, apply to proceedings involving the institution and conduct of the conservatorship. Wellman also indicates that once there is a conservator, venue for lawsuits instituted by the conservator are not limited by \u00a7 45-5-403, supra. Wellman, supra, at 529 states:\nLitigation brought by or against third persons who claim property adversely to the protected person, who are indebted to him, or who have claims against him or his estate, may be conducted in another court if litigation of the kind involved could have been conducted there in the absence of conservatorship proceedings.\nApart from the conservatorship, the Bank is also the trustee of an express trust for the benefit of Zachariah. As trustee, it was the proper party to bring the damage suit and venue in the county of the trustee\u2019s residence was proper. Rule of Civ.Proc. 17; \u00a7 38-3-1(A), supra; Chavez v. Lowe, supra.\nStatutory provisions concerning guardians of minors and guardians of incapacitated persons have two venue provisions. One provision pertains to the appointment of the guardian. Sections 45-5-205 and 45-5-302, N.M.S.A.1978. The second provision pertains to the venue of proceedings subsequent to the appointment. Sections 45-5-211 and 45-5-313, N.M.S.A. 1978. However, there is only one venue provision for conservators. Section 45-5-403, supra. Because of these statutory differences, defendants contend that \u00a7 45-5-403, supra, was intended to cover all proceedings involving conservators. We disagree. The absence of a venue provision for conservators, subsequent to the appointment, shows an intent not to restrict the venue of lawsuits involving the conservator.. The absence of a second venue statute concerning the conservator is consistent with Wellman, supra at 529, quoted above.\nDefendants assert that if the general venue statute controls the venue of lawsuits filed by the conservator, this \u201cwould abolish any restrictions on or requirements for proper venue in a major class of cases.\u201d Defendants point out that venue would be determined by selecting a conservator residing in the county where venue was desired. We agree, but this is not an argument that venue in this case was improper under the statutory provisions. Venue is determined by the Legislature. Estate of Owens, 89 N.M. 420, 553 P.2d 700 (1976); Peisker v. Chavez, 46 N.M. 159, 123 P.2d 726 (1942). The Legislature has enacted a general venue statute. Section 38-3-1, supra. The Legislature provided in \u00a7 45-1-103, N.M.S.A.1978: \u201cThe principles of law and equity supplement the Probate Code\u2019s * * * provisions, unless specifically displaced by particular provisions of the code.\u201d As to the damage suit, \u00a7 46-5-403, supra, relied on by defendants, is not a specific displacement of the general venue statute; rather, \u00a7 45-5 \u2014 403, supra, limits venue in matters concerning the institution and conduct of the guardianship.\nThere is no conflict between \u00a7 45-5 \u2014 403, supra, and \u00a7 38-3-l(A), supra, in connection with the damage suit. Section 45-5 \u2014 403, supra, does not control the venue of the damage suit filed by the conservator. Section 38-3-l(A), supra, was the applicable venue statute. If this result promotes shopping for a forum considered favorable to plaintiff, as defendants contend, the matter is for the Legislature to resolve. Mining Co. v. McClure, 17 N.M. 694, 133 P. 1063 (1913), 47 L.R.A.(N.S.) 744 (1914).\nThe trial court\u2019s order dismissing the Santa Fe District Court damage suit for lack of venue is erroneous and is reversed. The cause is remanded with instructions to reinstate the case on the docket of the Santa Fe District Court.\nIT IS SO ORDERED.\nWALTERS, J., concurs.\nSUTIN, J., dissents.", "type": "majority", "author": "WOOD, Chief Judge." }, { "text": "SUTIN, Judge\n(dissenting).\nI dissent.\nDefendants moved this Court to dismiss this appeal on the grounds that the Court lacks jurisdiction because the Order filed in this case dismissed \u201cthe captioned matter\u201d without prejudice.\nThe court found \u201cthat the motions and defenses asserting improper venue are well taken and should be granted.\u201d\nA hearing was held on the motion and the motion was denied. Defendants preserved this matter in their Answer Brief. To me, this jurisdictional issue is of primary importance and should be formally reviewed.\nThe question for discussion is:\nIs a dismissal of the captioned matter without prejudice a final order?\nOrtega v. Transamerica Ins. Co., 91 N.M. 31, 569 P.2d 957 (Ct.App.1977) held that a dismissal without prejudice was not a final order and was not appealable.' I dissented under the peculiar circumstances of the Workmen\u2019s Compensation Act to avoid the running of the limitation period. Nevertheless Ortega stands for the proposition that the Order filed in the instant case is not a final order and therefore not appealable.\nThis Court has a duty to determine whether it has jurisdiction of an appeal; it will examine the record and if required, will sua sponte question its jurisdiction. Rice v. Gonzales, 79 N.M. 377, 444 P.2d 288 (1968). There can be no exercise of discretion. Johnson v. Johnson, 74 N.M. 567, 396 P.2d 181 (1964).\nThis case should be remanded to the district court to allow the entry of an interlocutory order pursuant to \u00a7 39-3 \u2014 4, N.M.S.A. 1978. The purpose of the interlocutory order is to solve intricate, complex problems that arise like that in the instant case. I believe plaintiff refused to do so, inadvertently. If this case is not remanded plaintiff may lose its opportunity to seek the relief claimed in the District Court of Santa Fe County.", "type": "dissent", "author": "SUTIN, Judge" } ], "attorneys": [ "John A. Mitchell, Mitchell, Alley & Rubin, Santa Fe, for appellant.", "Bob F. Turner, Atwood, Malone, Mann & Cooter, James L. Bruin, Sanders, Bruin & Baldock, Roswell, Kenneth R. Brandt, Miller, Stratvert, Torgerson & Brandt, Albuquerque, for appellees.", ". Mat\u00edas A. Zamora, Santa Fe, E. Robert (Bob) Wallach, San Francisco, Cal., Arturo G. Ortega, Ortega & Snead, Albuquerque, for amici curiae." ], "corrections": "", "head_matter": "607 P.2d 649\nSANTA FE NATIONAL BANK, as Conservator of the Estate of Zachariah Zebadee Lee Wilson, an infant, Plaintiff-Appellant, v. Charles E. GALT, Jr., M.D., Catherine Armstrong, M.D., and Carlsbad Regional Medical Center, Defendants-Appellees.\nNo. 4079.\nCourt of Appeals of New Mexico.\nNov. 15, 1979.\nWrit of Certiorari Denied Dec. 14, 1979.\nJohn A. Mitchell, Mitchell, Alley & Rubin, Santa Fe, for appellant.\nBob F. Turner, Atwood, Malone, Mann & Cooter, James L. Bruin, Sanders, Bruin & Baldock, Roswell, Kenneth R. Brandt, Miller, Stratvert, Torgerson & Brandt, Albuquerque, for appellees.\n. Mat\u00edas A. Zamora, Santa Fe, E. Robert (Bob) Wallach, San Francisco, Cal., Arturo G. Ortega, Ortega & Snead, Albuquerque, for amici curiae." }, "file_name": "0111-01", "first_page_order": 147, "last_page_order": 152 }