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Padilla v. Estate of Tomas S. Griego2/17/1992
HARTZ, Judge.
Defendants, the Estate of Tomas S. Griego, deceased, and Martha S. Griego, d/b/a Mountain View Bar, appeal from district court orders granting summary judgment to Plaintiff, Raymond E. Padilla, and denying Defendants' motion for relief from the summary judgment. The judgment awarded Padilla $250,000 in compensatory damages against Defendants, jointly and severally, and also awarded Padilla $50,000 in punitive damages against Martha Griego. We affirm.
On August 29, 1986, Padilla filed a complaint against Defendants, alleging that he
was assaulted by Tomas Griego on October 4, 1983, at the Mountain View Bar, which was owned by Martha Griego. The complaint alleged that she was liable for compensatory damages under the doctrine of respondeat superior and was liable for punitive damages for permitting Tomas Griego to operate the bar when she knew or should have known of his violent and cruel Disposition and the danger he posed to patrons.
The district court granted Padilla's Motion for Summary Judgment on June 15, 1989. The Motion for Summary Judgment relied on an affidavit by Padilla, matters admitted in the answers to the Complaint filed on behalf of Defendants, and matters deemed admitted by Defendants' failure to respond to requests for admissions served upon them by Padilla. Defendants did not respond to the Motion for Summary Judgment, did not appear at the pretrial conference at which the district court considered the Motion, and did not appear at the hearing at which Padilla's counsel presented the Order Granting Summary Judgment to the district court for signature. On June 23, 1989, barely a week after the filing of the summary judgment, Defendants moved for relief from the judgment under SCRA 1986, 1-059 and 1-060(B). The motion and accompanying affidavits asserted that Defendants were unaware of their attorneys' failure to respond to various pleadings filed in the case and claimed that they had a meritorious defense in that Tomas Griego was physically incapable of committing the alleged assault and that he was not an agent, servant, or employee of the bar. The district court denied the motion.
I. APPEAL FROM SUMMARY JUDGMENT
A. Jurisdiction
Defendants' sole contention in their appeal from the summary judgment is that the district court lacked jurisdiction over the subject matter of the Complaint. Defendants rely on NMSA 1978, Section 37-2-4 (Repl. Pamp. 1990), which reads:
No action pending in any court shall abate by the death of either, or both, the parties thereto, except an action for libel, slander, malicious prosecution, assault or assault and battery, for a nuisance or against a Justice of the peace [magistrate] for misconduct in office, which shall abate by the death of the defendant.
Tomas Griego had died by the time Padilla filed his Complaint. Defendants argue that therefore the district court had no jurisdiction to consider the civil action for assault against the Estate, nor did it have jurisdiction against Martha Griego because, in their view, the Complaint against her was premised solely on respondeat superior liability for the actions of Tomas Griego. Defendants' argument is raised for the first time on appeal. No pleading in district court refers to Section 37-2-4.
Defendants' jurisdictional argument was resolved by our supreme court in a decision handed down shortly after the briefs were filed in this case. holds that "the failure of a complaint to state a cause of action does not interfere with or detract from t
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