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Nez v. Forney12/5/1989
BACA, Justice.
Plaintiffs, Jimmy and Elizabeth Nez (Nez) appeal the district court's order granting summary judgment in favor of defendants M Bank and Max Forney. M Bank is a Texas corporation with its principal place of business in El Paso, Texas. Max Forney does business as Albuquerque Recovery Bureau. Nez raises two issues on appeal: (1) whether the district court should apply the New Mexico or Texas statutes of limitation in the instant case; (2) if the Texas statutes of limitation are applicable, whether the two-year or four-year statute of limitations should be used. We reverse.
In 1982, Nez entered into a retail installment contract with Kemp Ford, Inc., in El Paso, Texas, to purchase a Ford truck and listed an El Paso address below the buyer's signature line. Kemp Ford assigned the contract to M Bank. This contract contained a clause stating: "This contract shall be governed by the laws of the State of Texas." Subsequently, Nez moved to New Mexico and resided within the territorial jurisdiction of the Navajo Nation. On September 25, 1985, Bradford Clement, an agent of M Bank, repossessed Nez' truck from their house on the Navajo reservation. M Bank denies that Bradford Clement was its agent.
On April 26, 1988, approximately two and one-half years after the repossession, Nez filed a complaint in district court alleging
conversion, wrongful repossession, an unfair trade practice violation, and violation of Navajo Tribal Code Section 607. Nez sought actual and punitive damages under the conversion count; various statutory damages under NMSA 1978, Sections 55-9-502 and 55-9-504 to -507 (Repl. Pamp. 1987) of the Uniform Commercial Code; $300 or three times actual damages under NMSA 1978, Section 57-12-10 (Repl. Pamp. 1987) of the Unfair Practices Act; and statutory damages under the Navajo Tribal Code Section 609. Defendants then moved for summary judgment against Nez with a supporting brief. In their brief, defendants argued summary judgment was proper on all claims because Nez brought suit after the time expired under a Texas statute of limitations. Defendants also asserted that Nez could not base his claims on violations of New Mexico law because New Mexico had no connection with the transaction at issue. Defendants contended that Texas law should apply, and the parties' choice of law provision should be honored. We do not reach this second argument. This opinion only turns on the question of the applicability of the statute of limitations. The court granted defendants' motion, and Nez appealed.
We first address defendants' argument in its brief-in-chief that, as the parties chose to be governed by Texas substantive and remedial law pursuant to the choice of law provision, application of Texas statutes of limitation barring Nez' claims was appropriate. Nez correctly asserts that we have viewed statutes of limitation as procedural for choice of law purposes. In Sierra Life Ins. Co. v. First National Life Ins. Co., 85 N.M. 409, 512 P.2d 1245 (1973), plaintiff Sierra Life, a New Mexico corporation, brought an action for breach of contract or, alternatively, for specific performance, against defendant First National, an Arizona corporation, in a New Mexico district court. First National argued to the trial court that Arizona's four-year statute of limitations was applicable, and therefore, plaintiff's claims were barred. On appeal, we ruled that under New Mexico law statutes of limitation are procedural and that the law of the forum governs matters of procedure. Thus, we held that plaintiff's claim
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