Lieb v. Milne , 95 N.M. 716 ( 1980 )

SUTIN, Judge

(dissenting).

I dissent.

This case should be remanded to the district court to make proper findings of fact sufficient to support a judgment.

Plaintiffs sued defendant to recover damages for misrepresentation, breach of warranty and for cancellation of a contract after revocation of acceptance. The contract involved the purchase by plaintiffs from defendant of a 1977 Chevrolet Van. Defendant raised affirmative defenses of statute of limitations, estoppel waiver, laches, accord and satisfaction.

Judgment was entered for defendant and plaintiffs appeal.

A. The judgment is not supported by the findings.

The court’s “findings” were:

1. With reference to Count I, the evidence was equally balanced on the issue of a material representation.

2. With reference to Count II, the evidence was equally balanced as to whether the requirements of § 2-608(2) of the U.C.C. were met on June 22, 1977.

3. There is contained in plaintiffs’ Exhibit 1, a retail sales agreement, limiting the implied warranties to the term of the express warranty by Chevrolet Motor Company.

4. At the time this action was commenced, the express warranty had expired.

The district court entered an Order in which it also made “findings” and ordered that the complaint and counterclaim be dismissed with prejudice.

Both parties agree that the Order is not supported by “findings” in the decision Order. “It is fundamental that a judgment cannot be sustained on appeal unless the conclusion upon which it rests finds support in one or more findings of fact.” Thompson v. H. B. Zachry Co., 75 N.M. 715, 716, 410 P.2d 740 (1966). No findings of fact were made.

Defendant seeks an alternative route to affirmance via Sears v. Board of Trust, of Anton Chico Land Grant, 83 N.M. 372, 492 P.2d 643 (1972). In Sears, the trial court did not make, sign and file a decision as required by Rule 52(B)(1)(a), (d) Rules of Civil Procedure. On appeal, the Board contended that findings adopted by reference could not be considered by the Supreme Court. Omitting citations, the court said:

. . . Normally we would remand the cause to the trial court to make, sign and file a proper decision as required by the rule. However, it is apparent the trial judge read and considered the requested findings. He rejected one of the requests, but adopted all the others. In view of this consideration and adoption of the requests by the trial judge, the fact that he has retired as a district judge, and the further fact that appellants made no effort to file requests or to call the now. claimed error to the attention of the trial court, we are not inclined to remand the case for the entry of a proper decision by some other judge unfamiliar with the case, or disregard the findings actually adopted and made by the trial judge. [Emphasis added.] [Id. 375, 492 P.2d 643.]

Sears is not an alternative. The trial court did adopt all findings but one requested by appellee. The normal procedural method was abandoned due to the retirement of the district judge. The two cases are not comparable.

In the instant case, Lieb did request findings. The trial court marked “Refused” on 116 requested findings of plaintiffs. It marked “Given” on 5 of the 16 requested findings of defendant, none of which appear in its “decision.” In this state of the record, it was the duty of opposing lawyers to file motions with the court to seek clarification of the decision rendered, proper findings of fact and a hearing with a reporter present. A report of all proceedings in the trial court are important in the appeal because we are bound by the record.

This case should be remanded to the district court. The transcript of the record and proceedings should be reviewed by the court to refreshen itself upon the evidence and facts. A hearing should be held. If opposing lawyers believe that any corrections, additions or modifications are necessary, motions should be presented to the court and rulings made. Suggestions and arguments of lawyers should be heard and recorded, none having been had at the close of the case. After having made a decision based upon ultimate facts, a proper judgment should be entered.

“Refreshment of memory by a court might take on the color of certainty if the testimony was read. If not read, experience teaches that a decision based upon memory alone is poor judgment and should be avoided.” Weiss v. Hanes Mfg. Co., 90 N.M. 683, 687, 568 P.2d 209 (Ct.App.1977). “Requested findings and conclusions should not slip through the judge’s fingers like an eel.” Ortiz v. Lane, 92 N.M. 513, 516, 590 P.2d 1168 (Ct.App.1979).

Absent any findings of fact, the judgment entered was invalid. Absent a judgment, this Court cannot resolve any issues of fact and law not before this Court. We do not yet know what the issues of fact are. We depend upon findings of fact and a challenge thereof. When this event occurs, we can determine whether the judgment should be affirmed or reversed.

B. Other points raised should await further proceedings.

Plaintiffs claim the trial court erred in refusing to adopt their requested findings and that the finding of the trial court regarding revocation is not supported by substantial evidence. In effect, plaintiffs ask for judgment in this appeal. To render judgment, we must review the evidence to determine whether 106 requested findings are supported by undisputed testimony. In its present state, we must view the evidence and inferences drawn therefrom most favorable to defendant. In view of the trial court’s “findings” that “the evidence was equally balanced,” we must await a decision of the Court.

This appeal should not be determined piecemeal. There are many and varied issues of fact and law. Unfortunately, the district court took the wrong road at the end of the trial.

Payment of costs should await a second appeal.