Appel v. Presley Cos.

1991-NMSC-026, 111 N.M. 464, 806 P.2d 1054



In deciding whether summary judgment is proper, a court must look to the whole record and view the matters presented in the light most favorable to support the right to trial on the merits. 


The owner recorded a set of restrictive covenants. The covenants regulated the land use, building type, quality, and size of the residential single-family dwellings that were to be placed on the subdivision property. The homeowners alleged that the restrictive covenants were used as a sales tool, which they relied on in purchasing a lot and constructing their home. The owner's employees or officers amended the restrictive covenants. The amendment deleted nine lots from the effect of the restrictive covenants. 


Did the court err in granting the summary judgment on the claims of misrepresentation and unfair trade practices?




The trial court erred in granting summary judgment on the claims of misrepresentation and unfair trade practices.  A proceeding on a motion for summary judgment is not an opportunity to resolve factual issues, but should be employed to determine whether a factual dispute exists. If genuine controversies as to the facts exists, a motion for summary judgment should be denied and the factual issues should proceed to trial. The trial court erred in finding no material issue of fact regarding misrepresentation and violation of the Uniform Trade Practices Act. The trial court focused only on statements made by Presley representatives in 1982 about certain lots not being developable, ignoring other alleged misrepresentations concerning the effect of the covenants. In considering a motion for summary judgment, the trial court must view the pleadings, affidavits and depositions in the light most favorable to the opposing party. The Appels produced sufficient evidence to raise factual questions as to whether Presley misrepresented that Lot 30 would remain open space and that the covenants would maintain the intended character of the subdivision. Whether or not the statements made to the Appels about Lots 28-A and 30 were true or false at the time made are issues of fact to be determined at trial, not by the court on summary judgment.

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