CAPCO ACQUISUB, INC., V. GREKA ENERGY
CORP., 2008-NMCA-153, 145 N.M. 328, 198 P.3d 354
CAPCO ACQUISUB, INC.,
Plaintiff-Appellee,
v.
GREKA ENERGY CORPORATION,
Defendant-Appellant,
and
MICHAEL HARTON, LINDA HARTON,
JOE ANN DUNCAN (a/k/a JO ANN MISSEY
and f/k/a ANDERSON), ROBERT WRALDO
DUNCAN IV, ALLEE THOMPSON, BETTY
BAUM COOPER, DEBORAH THOMPSON
(f/k/a DEBRA ANN CAMPBELL), TOM RAY
GAINER (as his sole and separate property),
and LELA RENEE THOMAS (as her sole and
separate property),
Plaintiffs-Appellees,
v.
GREKA AM, INC., SABA ENERGY OF
TEXAS, INCORPORATED, STRATA
VARIOUS L.C., TATUM ENERGY, L.C.,
CAPCO ACQUISUB, INC., DR. IFTIKHAR
AHMAD, DARSHAM S. MUNDY, DR. HAMID
UR RAHMAN, MUHAMMAD SAEED,
KALEEM AHMAD SAYED, SEHER
ENTERPRISES, INC., and SUMMER
ENTERPRISES, INC.,
Defendants-Appellees.
COURT OF APPEALS OF NEW MEXICO
2008-NMCA-153, 145 N.M. 328, 198 P.3d 354
APPEAL FROM THE DISTRICT COURT OF LEA COUNTY, Gary L.
Clingman, District Judge
Certiorari Denied, No. 31,332,
September 15, 2008 and No. 31,335, October 10, 2008. Released for publication
November 25, 2008.
Reagan & Sánchez, P.A., Mark Terrence
Sánchez, Gary Don Reagan, Hobbs, NM, for Appellee Capco Aquisub, Inc.
Keleher & McLeod, P.A., Thomas C.
Bird, David W. Peterson, Gary J. Van Luchene, Nikolai N. Frant, Albuquerque,
NM, for Appellant
Johnston & Wolitarsky, P.C., Jeffrey
M. Johnston, Stanley E. Crawford, Jr., Midland, TX, for Appellees Michael
Harton, et al.
MICHAEL D. BUSTAMANTE, Judge. WE CONCUR:
LYNN PICKARD, Judge, RODERICK T. KENNEDY, Judge
AUTHOR: MICHAEL D. BUSTAMANTE
{1} This is the second
appeal originating from a judgment entered in a case concerning oil and gas
properties in Lea County, New Mexico. The judgment involved two separate
lawsuits pending in Lea County District Court that were consolidated for trial:
Capco Acquisub, Inc. v. Greka Energy Corporation, No. CV-2001-249 (Lea
County, N.M., filed July 6, 2001)
and
Michael Harton, et al. v. Greka
AM, Inc., et al., No. CV-2001-417 (Lea County, N.M., filed Oct. 29, 2001).
We refer to the former suit as the “Capco Action” and the plaintiffs in that
suit as the “Capco Plaintiffs.” We refer to the latter suit as the “Harton
Action” and the plaintiffs in that suit as the “Harton Plaintiffs.”
{2} Following a trial
in which Defendant Greka Energy Corporation (GEC) and its subsidiaries,
Defendants Greka AM, Inc. (Greka AM) and Saba Energy of Texas, Inc. (Saba)
(collectively, the Subsidiaries), failed to appear, the district court entered
judgment against all three entities. In the first appeal related to that
judgment, we affirmed the district court’s denial of the Subsidiaries’ motion
for extension of time to file a notice of appeal and dismissed the remainder of
the Subsidiaries’ appeal.
Capco Acquisub, Inc. v. Greka Energy Corporation (
Capco
I),
2007-NMCA-011, ¶ 8,
140 N.M. 920,
149 P.3d 1017. GEC, however, filed a
timely notice of appeal, which is the subject of today’s opinion.
{3} GEC seeks reversal
of the judgment on the following grounds: (1) the district court lacked
personal jurisdiction over GEC; (2) the district court should not have
permitted the Harton Plaintiffs to add GEC as a defendant to the Harton Action
at trial; (3) the district court erred in awarding punitive damages against
GEC; (4) the district court erred in disregarding the corporate separateness of
GEC and the Subsidiaries; and (5) NMSA 1978, §
53-17-20 (1969), precluded the
Capco Plaintiffs from filing suit in New Mexico. We affirm in part, reverse in
part, and remand for further proceedings.
{4} In order to address
the issues GEC raises on appeal, it will be helpful to trace the development of
the present case from its origins in the separate lawsuits that were eventually
consolidated for trial. We look first at the Capco Action, then at the Harton
Action, and then follow the consolidation of the cases chronologically.
{5} Capco Acquisub,
Inc. (Capco) filed a complaint for accounting and payment of monies owing
against GEC in Lea County district court on July 6, 2001. Capco alleged that it
filed the action on behalf of itself and other “affiliates” who own interests
in the Southwest Tatum Prospect, which is an oil and gas development in Lea
County. Capco asserted that Saba, or its parent company, operated the subject
properties in the Southwest Tatum Prospect, and that GEC assumed operations by
virtue of a merger with Saba in March 1999. Capco claimed that Saba’s working interest
in the Southwest Tatum Prospect is set forth in a joint interest operating
agreement, but that the agreement does not set forth the working interests
owned by the Capco Plaintiffs.
{6} Prior to the
merger, Saba had received on a monthly basis all revenues for the collective
ownership interests in the subject properties, deducted the Capco Plaintiffs’
share of monthly expenses, and paid the Capco Plaintiffs their respective share
of net proceeds. However, following the merger, GEC discontinued paying monthly
net proceeds to the Capco Plaintiffs, yet continued to bill the Capco
Plaintiffs for their share of expenditures. GEC also refused to provide the
Capco Plaintiffs with information regarding production, sales volumes, and
revenues. Capco filed the suit seeking judgment for compensatory damages,
attorney fees, and interest on the sums owing as determined by an accounting,
as well as punitive damages.
{7} GEC filed an answer
on September 5, 2001. GEC denied that the working interest of the Capco Plaintiffs
was included in Saba’s interest and admitted that it was not paying proceeds to
the Capco Plaintiffs. GEC also stated as an affirmative defense that the
district court lacked jurisdiction over GEC because GEC is a foreign
corporation that is neither operating nor transacting business in New Mexico.
On February 4, 2002, GEC filed a motion to dismiss for lack of jurisdiction. On
the same date, GEC filed a motion to dismiss the claims of Capco’s “affiliates”
because Capco was not the real party in interest as to those claims, as well as
a motion for summary judgment
asserting that Capco’s claims were
precluded by a settlement agreement between GEC and Capco in another case.
{8} Capco filed
a response to GEC’s motion to dismiss for lack of jurisdiction, arguing that
GEC waived the defense of lack of personal jurisdiction because GEC requested
affirmative relief in its answer. On February 9, 2004, prior to ruling on GEC’s
motion to dismiss, the district court consolidated the Capco Action with the
Harton Action.
{9} Michael and Linda
Harton filed a pleading styled “petition for declaratory judgment” against GEC,
Greka AM, Saba, and Capco, among others, on October 29, 2001. Although GEC is a
named defendant in the caption and is mentioned in the introductory paragraph
of the petition, GEC is not mentioned throughout the remainder of the petition.
The Hartons and other Harton Plaintiffs thereafter filed several amended
complaints, each of which omit mention of GEC altogether.
{10} The Harton
Plaintiffs alleged that, on or about April 12, 1996, they entered into an oil
and gas lease (the Lease) as lessors of land on which the Harton State #1 Well
(the Well) was eventually drilled. Through a succession of assignments and/or
mergers, Greka AM became the designated operator of the lands covered by the
Lease. The Harton Plaintiffs received their last payment for their interest in
production from the Well in July of 2000, and Greka AM thereafter refused to
pay the Harton Plaintiffs for their interest in production or proceeds
attributable to gas produced from the Well.
{11} The Harton
Plaintiffs further claimed that the Lease terminated due to a halt in
production that was not remedied in accordance with the Lease. The Lease
provides at Paragraph 6 that “this lease shall not terminate if Lessee
commences reworking or additional drilling operations within 60 days thereafter
and diligently prosecutes the same . . . .” The Harton Plaintiffs alleged that,
on August 8, 2001, the Well ceased production due to a mechanical failure of a
gearbox, and that Greka AM did not attempt to commence reworking or additional
drilling operations within 60 days. Greka AM, despite being informed that its
interest in the Lease had terminated and that continued production from the
Well would be considered hostile to the Harton Plaintiffs’ interest, continued
to produce from the Well after October 29, 2001.
{12} The Harton
Plaintiffs sought the following relief: (1) a declaratory judgment that the
Lease had expired; (2) a judicial decree that the expired Lease no longer
conveys a determinable fee mineral interest in the land covered by the Lease
(removal of cloud on title); (3) a monetary judgment for past due royalties;
(4) a monetary judgment for the value of economically recoverable oil and gas
reserves that were drained from the land covered by the Lease; (5) a monetary
judgment for the defendants’ failure to develop the land covered by the Lease;
(6) compensation for slander of title; (7) compensation for bad faith trespass;
(8) punitive damages; and (9) attorney fees.
{13} On October 31, 2003,
the Subsidiaries filed a motion to dismiss the Harton Action for failure to
join indispensable parties and an alternative motion to consolidate pending
trials. The Subsidiaries noted in their motion that the Capco Plaintiffs, who
were named defendants in the Harton Action, brought a similar suit (the Capco
Action) seeking past due royalties attributable to their alleged interests in
the Well. The Subsidiaries argued that the Capco Plaintiffs were indispensable
parties to the Harton Action under Rule
1-019 NMRA because “if they [the Capco
Plaintiffs] are not parties to the [Harton A]ction, Defendant could be ‘subject
to a substantial risk of incurring double, multiple or otherwise inconsistent
obligations by reason of [their] claimed interests.’” Although the Subsidiaries
did not clarify which defendant or defendants would be subject to multiple or
inconsistent obligations, the Subsidiaries acknowledged in their alternative motion
to consolidate that the Capco Action was filed against GEC. The Subsidiaries
argued that the cases should be consolidated because they involved common
questions of law and fact. The district court denied the Subsidiaries’ motion
to dismiss and entered an order consolidating the cases on February 9, 2004.
Procedural History Following Consolidation
{14} On April 1, 2004,
the district court administrative assistant sent a notice of trial setting to
counsel for all parties in the consolidated case, including counsel for GEC.
The notice indicated that the case had been set for non-jury trial on December
7, 2004.
{15} On April 7, 2004,
the district court disposed of several motions that were pending in the Capco
Action. The district court entered an order denying GEC’s motion to dismiss
regarding the Capco “affiliates,” although the district court stated that the
affiliates would have to intervene in the case in order to have their rights
vindicated. The district court also denied GEC’s motion to dismiss for lack of
jurisdiction, finding that the motion “was not filed in conformity with Rule
1-012[(B)] NMRA.” Finally, the district court entered an order denying GEC’s
motion for summary judgment.
{16} On May 3, 2004, the
Harton Plaintiffs filed a third amended complaint. While the caption includes
GEC as the named defendant in the consolidated Capco Action, the remainder of
the pleading excludes mention of GEC. However, the certificate of mailing
indicates that a copy of the third amended complaint was sent to Scotty
Holloman, of Hobbs, New Mexico, who was counsel for GEC at the time.
{17} On June 7, 2004, Mr.
Holloman filed a motion to withdraw as counsel for GEC. Mr. Holloman stated as
grounds for the motion that GEC and Mr. Holloman’s law firm had disagreements
over how to proceed with the case. The motion instructed that “[a]ll notices
and pleadings should be sent to [GEC] at Greka Energy Corporation, Attention:
Susan Whelan, 3201 Airpark Drive Suite 201[,] Santa Maria, California 93455.”
The district court entered an order permitting the withdrawal and containing an
identical instruction for mailing of notices and pleadings to GEC.
{18} On June 24, 2004,
the Capco Plaintiffs, as defendants to the Harton complaint, filed an answer in
which they refer to GEC and Greka AM as the “Greka entities.” The Capco
Plaintiffs state in their answer that the Greka entities deny that, in “a
portion of the consolidated cases,” the Capco Plaintiffs have any interest in
the Lease and that, if the Greka entities prevail on that point, the Capco
Plaintiffs should be dismissed as defendants to the Harton Plaintiffs’ claims.
The Capco Plaintiffs also asserted that “the Defendants Greka are solely
empowered to and bear the full responsibility of and liability for operation of
the lease[.]”
{19} Additionally, the
Capco Plaintiffs incorporated in their answer a cross-claim against Greka AM,
GEC, and all other defendants. The Capco Plaintiffs maintained that, if they
are adjudged to have interests in the Lease and are obligated to pay damages to
the Harton Plaintiffs, then the Capco Plaintiffs should be awarded judgment
against Greka AM and GEC, as operator of the Well, for breach of statutory,
contractual, and fiduciary obligations to the Capco Plaintiffs for the sum of
those damages and for contribution. Counsel for the Capco Plaintiffs attached a
proof of service to the answer indicating that the pleading was mailed to all
counsel of record.
{20} On July 6,
2004, GEC and the Subsidiaries jointly filed a final disclosure of witnesses.
The introductory paragraph states the following: “COMES NOW Defendant Greka AM,
[], [GEC], and Saba[], by and through its [sic] attorneys of record, and hereby
submit the following list of lay and expert witnesses who may be called . . .
in this matter.” The pleading is signed by Rod M. Schumacher of the firm
Atwood, Malone, Turner and Sabin, PA. However, on the same day, Mr. Schumacher
filed a motion to withdraw as counsel for GEC and the Subsidiaries. As grounds
for the motion, Mr. Schumacher stated that “there no longer exists a viable
attorney/client relationship between the movant and [GEC and the
Subsidiaries].”
{21} The Harton
Plaintiffs filed an opposition to the motion to withdraw based on their belief
that GEC and the Subsidiaries brought about the withdrawal in order to cause
delay. The Harton Plaintiffs urged the district court to keep the trial date
set for December 7, 2004. The opposition to the motion to withdraw contains a
certificate of mailing indicating that a copy of the opposition was sent to Mr.
Schumacher, who purported to represent GEC in his motion to withdraw.
{22} On August 5,
2004, the district court entered an order permitting Mr. Schumacher to withdraw
as counsel for the Subsidiaries. The order itself makes no mention of GEC, yet
directs the Subsidiaries to obtain new counsel by August 27, 2004, or be deemed
pro se. The order also states that all previously scheduled dates and deadlines
“remain in force and effect.” Finally, the order sets forth the following:
Until further notice
from such party or its new counsel, all notices required by the New Mexico
Rules of Court to be served upon Greka AM[] and Saba[], shall be directed as
follows:
Attention: Susan Whalen, Esquire
Santa Monica, California 93454
Saba Energy of Texas, Incorporated
Attention: Susan Whalen, Esquire
Santa Monica, California 93454
{23} On August 13, 2004,
the Harton Plaintiffs filed a motion to compel discovery against the
Subsidiaries, although the motion itself does not mention GEC. The certificate
of mailing indicates that the motion to compel discovery was sent to Susan
Whalen at the above address in Santa Monica, California—not Santa Maria,
California, as indicated in Mr. Holloman’s motion to withdraw. After holding a
hearing on the motion to compel discovery, at which neither GEC nor the
Subsidiaries appeared, the district court entered an order of sanction against
the Subsidiaries
and GEC. The order states the following:
Pursuant to NMRC 1-037,
the Court has Ordered that all the defenses in the consolidated cases to the
Harton . . . Plaintiffs’ claims against the . . . Defendants, namely, [GEC],
GREKA AM[], AND SABA[] are struck, as an appropriate sanction for their
conscious failure to submit full and complete answer(s) to written discovery
and their conscious failure to produce discoverable documents following the
Harton . . . Plaintiffs’ repeated attempts to procure same.
The order also states that “all witnesses in the consolidated
cases of [GEC and the Subsidiaries] are struck.”
{24} The Harton
Plaintiffs and the Capco Plaintiffs eventually settled as to the Harton
Plaintiffs’ claims. Accordingly, the district court entered an order dismissing
the Capco Plaintiffs from the suit in their roles as defendants to the Harton
Plaintiffs’ claims.
{25} The case
proceeded to trial on December 7, 2004, although GEC and the Subsidiaries
failed to appear. Following trial, the district court entered an amended final
judgment against GEC and the Subsidiaries on January 18, 2005. The district
court also entered findings of fact and conclusions of law. With respect to
GEC, the district court found:
[Regarding the Capco Action]
9. [GEC]
and its subsidiary Greka AM[] (“the Greka entities” hereafter), assumed
operations of these [Harton Lease] properties by virtue of Greka’s merger with
Saba[’s predecessor] in March 1999 and the Saba interests were assigned to the
Greka entities, which became the operator, at that time.
12. When the
Greka entities assumed control of Saba’s operations in 1999, the Greka entities
as operator discontinued paying the monthly net proceeds to Capco.
13. The
Greka entities continued to send cumulative monthly joint interest billings to
Capco for Capco’s share of expenditures, but the Greka entities refused to
provide to Capco any information regarding production, sales volumes, and
revenues.
15. The
Greka entities failed and refused to respond to Capco’s demands and did not
produce an accounting or send any money to Capco.
17. Capco
was damaged by the Greka entities’ refusal to account and pay monies in the
amount of $855,700.00 owing to Capco and by the Greka entities’ operation of
the leases and failure to market production and protect against drainage, all
of which constituted breach of the operating agreement and duties owed to Capco
and further damaged Capco by causing Capco to lose its investment of
$800,000.00 and to have to defend against the Harton claims and the consequent
exposure to liability therefrom.
18. Capco is
entitled to judgment against the Greka entities and each of them, jointly and
severally, for compensatory damages in the amount of $1,655,700.00 and for
attorney fees in the amount of $36,000.00, plus gross receipts tax thereon, and
interest on the sum [of] $1,655,700.00 at the rate of 10% per annum from April
1, 1999, until paid.
19. The
conduct of the Greka entities constituted malicious, wilful, wanton, and
reckless disregard for Capco’s interests and entitles Capco to the entry of
judgment for punitive damages against the Greka entities and each of them,
jointly and severally, in favor of Capco in the amount of $3,000,000.00.
21. The
Greka entities . . . did not answer or respond to Capco’s cross- claims against
them [in the Harton Action] and are in default.
[Regarding the
Harton Action]
10. Americas
Oil and Gas, Inc., formerly Greka AM[] is a Colorado corporation, and wholly
owned subsidiary of [GEC]. Greka AM’s corporate status in New Mexico is that of
a non-filer. Greka AM is the successor in interest to an 80% working interest
in the Leased Lands, by assignment, from Saba[], thus being one of the record
lessees to the Leased Lands.
13. [GEC] is
a Colorado corporation, with its principal offices located at 6527 Dominion
Road, Santa Maria, California, 93454. . . . [GEC] has never been qualified to
do business in the State of New Mexico.
14. [GEC] employed
personnel in Lea County, New Mexico for the purpose of operating the Harton
Lease, among others. [GEC] held itself out to be the operator of the Harton
Lease, and otherwise directed and controlled the operations conducted upon the
Harton Lease.
23. Production
from the . . . Well ceased on August 8, 2001 due to a gearbox failure.
24. The
services of A&M Machine Works were procured by the local [GEC] field
supervisor Tracy Headstream to repair the gearbox.
25. . . . .
The Court finds the repairs were completed on or before August 13, 2001.
30. The
gearbox was not reinstalled in the . . . Well until October 29, 2001, some 77
days after the repairs to the gearbox were completed.
31. . . .
Defendants failed to diligently prosecute the repair of the gearbox, and
consequently, failed to comply with the 60-day cessation/rework clause found in
Paragraph 6 of the Harton Lease. Therefore, the Harton Lease terminated under
its own terms.
34. Defendants
were experienced and seasoned oil and gas operators.
35. There is
a quantifiable and undeniable gas/oil ratio in the reservoir underlying the
Leased Lands.
36. Defendants
flared and/or vented an estimated 98,142 million cubic feet of merchantable gas
from the . . . Well, the royalty fraction of which is $87,800.
37. Defendants
failed on numerous occasions to make gas royalty payments to the royalty owners
in the . . . Well, totaling $53,100.
38. The
total gas royalty payments that are past due and still owing from Defendants is
$140,900.
43. A
reasonably prudent operator would have drilled the Harton #2 Well no later than
May of 1999.
44. The
value of the royalty interest in the Harton #2 Well held by the Harton
Plaintiffs is $454,000.
46. Defendants
are the record lessees and working interest owners of the Leased Lands.
47. As of
the date of trial, the Lea County Records show Defendants have failed to
release their interests in the Harton Lease and/or the Leased Lands.
49. Substantial
economic waste and loss of opportunity has occurred due to Defendants’ failure
to release the Harton Lease of record.
50. The
Hartons have been unable to exercise their executive rights while Defendants’
interest in the Harton Lease has been on record. Special damages have resulted
in that two or more offers to re-lease the Leased Lands have been lost.
51. Defendants’
refusal to release the Harton Lease of record was malicious in that the Harton
Lease terminated due to Defendants [sic] own negligence and no reasonable cause
existed to keep the Harton Lease of record.
53. damages
suffered due to Defendants’ slander of the Harton Plaintiffs’ title totals
$3,507,300.
55. Defendants
continued to produce the Leased Lands for a portion of two months after the
Harton Lease terminated, wrongfully taking 1,265 barrels of oil and 2,461
million cubic feet of gas totaling $34,300.00 in value, including interest at
the rate of 15% per annum as of November 1, 2004.
56. [GEC]
represented to the New Mexico Oil Conservation Division that it was the
operator of the . . . Well.
{26} On February 16,
2005, GEC, now represented by new counsel, filed a motion to vacate the
judgment. The district court entered an order denying GEC’s motion to vacate on
February 24, 2005. GEC timely filed a notice of appeal.
{27} We consolidate the
issues GEC raises on appeal as follows: (1) whether the district court lacked
personal jurisdiction over GEC,
(2) whether the district court erred in
allowing the trial amendment adding GEC as a defendant to the Harton Action,
(3) whether the district court erred in awarding punitive damages against GEC,
and (4) whether the Capco Plaintiffs were precluded from filing suit in New
Mexico under Section 53-17-20.
{28} “The determination
of whether a court has personal jurisdiction over a party is a question of law
that is reviewed
de novo.”
Grover v. Stechel,
2002-NMCA-049, ¶ 8,
132 N.M. 140,
45 P.3d 80. However, “a district court’s conclusions [regarding
personal jurisdiction] based upon findings of fact are not disturbed on appeal
unless clearly erroneous.”
Tercero v. Roman Catholic Diocese,
2002-NMSC-018, ¶ 5,
132 N.M. 312,
48 P.3d 50 (internal quotation marks and
citation omitted).
{29} This issue comes
before us in an unusual posture. The district court denied GEC’s motion to
dismiss for lack of jurisdiction for failure to comply with Rule 1-012(B).
However, the district court did not specify the basis for its determination
that GEC failed to comply with the rule. GEC asserts that the district court
denied the motion because it erroneously concluded that GEC waived its personal
jurisdiction defense by raising it both in its answer and in the motion.
Neither the Harton Plaintiffs nor the Capco Plaintiffs appear to challenge
GEC’s assertion on appeal. However, the Harton Plaintiffs maintain that GEC
acquiesced to the district court’s jurisdiction through its conduct, namely by:
(1) participating in mediation, (2) agreeing to consolidation of the cases, (3)
participating in a status conference, and (4) filing a motion for summary
judgment.
{30} Alternatively, the
Harton Plaintiffs claim that, even if GEC
did not waive its personal
jurisdiction defense, the facts proved at trial establish that GEC had
sufficient minimum contacts with New Mexico to support the district court’s exercise
of jurisdiction over GEC pursuant to the New Mexico “long-arm” statute, NMSA
1978, §
38-1-16(A) (1971). The Capco Plaintiffs similarly argue that the
evidence adduced at trial supports the district court’s exercise of
jurisdiction over GEC pursuant to Section 38-1-16(A). GEC contends in its reply
brief that trial evidence cannot be used to salvage the district court’s
erroneous legal ruling regarding GEC’s motion to dismiss for lack of personal
jurisdiction. We first address the issue of waiver and then examine whether we
may affirm the district court’s exercise of jurisdiction over GEC based on the
evidence produced at trial.
{31} GEC is correct that
it did not waive its personal jurisdiction defense by asserting it alongside
other defenses in an answer or motion.
See Rule 1-012(B) (“No defense or
objection is waived by being joined with one or more other defenses or
objections in a responsive pleading or motion.”);
Williams v. Arcoa Int’l,
Inc.,
86 N.M. 288, 289,
523 P.2d 23, 24 (Ct. App. 1974) (holding that “[a]
claim of no jurisdiction over the person was not waived by being joined with
other defenses”). To the extent the district court denied GEC’s motion to
dismiss on that basis, the district court’s conclusion was in error.
{32} The question of
whether GEC’s conduct in the litigation demonstrated its acquiescence to the
district court’s jurisdiction presents a closer call. As noted above, GEC filed
a motion for summary judgment, filed a motion to dismiss the Capco affiliates’
claims, and participated in certain aspects of the pretrial process. We have
previously held that a defendant waives the defense of personal jurisdiction
when the defendant seeks permissive, affirmative relief from the district
court.
Id. at 290, 523 P.2d at 25. However, GEC’s conduct was defensive
in nature and did not appear to entail a request for affirmative relief from
the district court. Under these circumstances, we are unwilling to say that
GEC’s conduct amounted to waiver. We now turn to the question of whether the
evidence produced at trial can nonetheless serve as a basis for upholding the
district court’s exercise of jurisdiction over GEC.
B. Trial Evidence Can Establish the District
Court’s Jurisdiction Over a Defendant Following an Improperly Denied Motion to
Dismiss
{33} GEC claims that
trial evidence cannot be used to support the district court’s erroneous legal
ruling on GEC’s motion to dismiss for lack of personal jurisdiction. GEC argues
that doing so would require us to ignore the legal nature of the district
court’s ruling. Additionally, GEC claims that it would be unfair for us to rely
on trial evidence because the district court erroneously struck all of GEC’s
defenses and witnesses prior to trial. We reject the latter claim summarily by noting
that (1) the district court did not strike GEC’s defenses and witnesses with
respect to the Capco Action and (2) had GEC appeared at trial it could have
challenged the Harton Plaintiffs’ evidence through objections and
cross-examination.
{34} We have previously
held that, when a case proceeds to trial, error resulting from an improperly
denied pretrial motion “is not reversible for the result becomes merged in the
subsequent trial.”
Leithead v. City of Santa Fe,
1997-NMCA-041, ¶ 6,
123
N.M. 353,
940 P.2d 459 (internal quotation marks and citation omitted).
But
see Chaara v. Lander,
2002-NMCA-063, ¶ 22,
132 N.M. 175,
45 P.3d 895
(noting that the merger rule does not apply to pretrial motions involving pure
questions of law; the rule only applies to improperly denied fact-based motions
where “the facts in issue were decided against the movant at a trial on the
merits”). GEC is correct that the evidence produced at trial does not affect
the legal question of whether GEC waived its personal jurisdiction defense.
However, nothing in the district court’s erroneous ruling precluded the parties
from proving—or contesting—jurisdictional facts at trial.
{35} We conclude that our
review of the personal jurisdiction issue is not limited to the legal question
of waiver and may encompass the entire record. First, as a general matter, we
may affirm the district court when it is right for the wrong reason.
Romero
v. Prince,
85 N.M. 474, 476,
513 P.2d 717, 719 (Ct. App. 1973). Second, the
Rules of Appellate Procedure grant us broad discretion to decide jurisdictional
issues on appeal.
See Rule
12-216(B) NMRA (granting New Mexico appellate
courts discretion to review jurisdictional questions that have not been
preserved by the parties);
see also Himes Assocs., Ltd. v. Anderson, 943
A.2d 30, 42-43 (Md. Ct. Spec. App. 2008) (reviewing a personal jurisdiction
question based on entire record in light of Maryland appellate courts’ broad
discretion to review jurisdictional issues). Finally, if facts were proved at
trial that support the district court’s exercise of jurisdiction over GEC, it
would be duplicative—and possibly futile—to remand for another hearing on the
jurisdiction issue. Therefore, we will affirm the district court’s exercise of
jurisdiction over GEC if it is not clearly erroneous in light of the evidence
produced at trial.
Tercero,
2002-NMSC-018, ¶ 5.
{36} The New
Mexico “long-arm” statute provides, in relevant part, as follows:
Any person, whether or not a citizen
or resident of this state, who in person or through an agent does any of the
acts enumerated in this subsection thereby submits himself . . . to the
jurisdiction of the courts of this state as to any cause of action arising
from:
(1) the transaction of any
business within this state;
3. the commission of a
tortious act within this state.
Section 38-1-16(A)(1) and (3). “Although our long-arm statute
enumerates acts that may subject non-resident defendants to personal
jurisdiction in New Mexico, the necessity of a technical determination of
whether a defendant committed such an act has been removed.” Zavala v. El
Paso County Hosp. Dist., 2007-NMCA-149, ¶ 10, 143 N.M. 36, 172 P.3d 173.
Rather, the question we must answer is whether the defendant “had the requisite
minimum contacts with New Mexico to satisfy due process.” Id. The Capco
Plaintiffs and Harton Plaintiffs assert that the trial evidence shows that GEC
transacted business and committed torts in New Mexico and that the causes of
action brought against GEC arise from these business activities and torts.
{37} The district court’s
findings and conclusions recited above support the Capco Plaintiffs’ and Harton
Plaintiffs’ contentions. The district court found, among other things, that
GEC: (1) assumed operation of the Well, which was located in New Mexico; (2)
discontinued paying monthly net proceeds to Capco; (3) ignored Capco’s demand
for an accounting; (4) failed to market production and protect against
drainage; (5) employed personnel in Lea County, New Mexico for the purpose of
operating the Harton Lease; and (6) held itself out as the operator of the
Harton Lease. These are among the many findings that, if not clearly erroneous,
establish GEC’s sufficient minimum contacts with New Mexico to confer
jurisdiction over GEC.
{38} Our review of the
record reveals that the district court’s findings are supported by the
testimony and documentary evidence submitted at trial. GEC failed to appear at
the trial and therefore did not challenge the evidence presented by the Capco
Plaintiffs and Harton Plaintiffs. GEC filed a post trial motion to vacate but
still did not challenge the sufficiency of the evidence supporting the district
court’s findings. Instead, GEC’s argument regarding personal jurisdiction
focused on the district court’s denial of GEC’s motion to dismiss on the basis
of waiver. Likewise, GEC does not set forth an argument on appeal demonstrating
how the district court’s findings are clearly erroneous. Accordingly, we
conclude that the district court properly exercised jurisdiction over GEC.
2. Trial Amendments and Discovery Sanctions
{39} GEC asserts
that the district court erred in permitting the Harton and Capco Plaintiffs to
amend their complaints at the close of trial. More specifically, GEC claims
that the trial amendments violated its due process rights because it had no
notice that (1) the Harton Plaintiffs would seek to add GEC as a defendant and
(2) the Capco Plaintiffs would add a claim for rescission against GEC. GEC
further maintains that the district court erred by imposing discovery sanctions
against GEC in response to the Harton Plaintiffs’ motion that was directed
solely at the Subsidiaries. At oral argument, counsel for the Capco Plaintiffs
indicated that the rescission claim had been abandoned, and therefore none of
the damages awarded were for any amended cause of action. GEC’s counsel then
indicated that the problem was one of election of remedies. But election of
remedies was never raised in the trial court. We therefore only address GEC’s
claims regarding the Harton Plaintiffs’ trial amendment and the discovery
sanctions imposed against GEC.
{40} “We review the
district court’s grant of a motion to amend for abuse of discretion.”
Sanchez
v. Saylor,
2000-NMCA-099, ¶ 30,
129 N.M. 742,
13 P.3d 960. An abuse of
discretion occurs when the opposing party suffers prejudice as a result of the
amendment.
Id. Lack of a fair opportunity for the opposing party to
defend itself or offer evidence amounts to prejudice.
Id. We also review
discovery orders for abuse of discretion.
Santa Fe Pacific Gold Corp. v.
United Nuclear Corp.,
2007-NMCA-133, ¶ 9,
143 N.M. 215,
175 P.3d 309.
{41} Rule
1-015(C) NMRA
governs amendments to pleadings that change a party against whom a claim is
asserted and states, in relevant part, as follows:
An amendment changing the party
against whom a claim is asserted relates back [to the date of the original
pleading] if . . . within the period provided by law for commencing the action
against him, the party to be brought in by amendment:
(1) has received
such notice of the institution of the action that he will not be prejudiced in
maintaining his defense on the merits; and
(2) knew or should
have known that, but for a mistake concerning the identity of the proper party,
the action would have been brought against him.
Rule 1-015(C) also applies where the proposed amendment seeks
to add a party. Romero v. Ole Tires, Inc., 101 N.M. 759, 762, 688 P.2d
1263, 1266 (Ct. App. 1984) (noting that “amendments adding or dropping parties
as well as amendments that substitute parties fall within the Rule”). When the
party to be added or changed has not been served, the plaintiff has the burden
of demonstrating compliance with the notice requirements of Rule 1-015(C)(1)
and (2). Romero v. Bachicha, 2001-NMCA-048, ¶¶ 11-12, 130 N.M. 610, 28
P.3d 1151.
{42} The Harton
Plaintiffs contend that GEC did not suffer prejudice from the trial amendment
for several reasons. First, GEC had no defense on the merits that differed from
the issues raised by the Subsidiaries prior to trial. Second, as the parent
company of the Subsidiaries, GEC had notice of the claims asserted against the
Subsidiaries that could also have been asserted against GEC. Third, GEC
received notice through its direct involvement in the underlying controversy.
For example, GEC actually managed the Lease, was the entity that responded to
the Harton Plaintiffs’ original demand letter, and participated in various
aspects of the litigation prior to trial. Finally, the addition of GEC as a
defendant at trial was permissible because of GEC’s close identity of interest
with the Subsidiaries.
{43} The Harton
Plaintiffs do not cite any authority in support of their position that, in
order to demonstrate prejudice, GEC must set forth what would have been its
meritorious defense at trial. As mentioned above, it is the Harton Plaintiffs’
burden to show that GEC received sufficient notice under Rule 1-015(C). We
therefore hold that GEC’s alleged failure to set forth a meritorious defense
was not grounds for the district court to deny GEC’s motion to vacate.
See
Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 85 (1988) (holding that
judgment entered against the defendant without notice or service of process was
constitutionally infirm despite defendant’s lack of a meritorious defense).
{44} The Harton
Plaintiffs’ claims regarding GEC’s knowledge of the Harton Action against the
Subsidiaries and GEC’s identity of interest with the Subsidiaries are similarly
to no avail. The Harton Plaintiffs cite this Court’s opinion in
Galion v.
Conmaco International, Inc.,
99 N.M. 403, 406,
658 P.2d 1130, 1133 (1983),
for the proposition that Rule 1-015(C) permits the addition of a party that has
a close “identity of interest” with an originally named party. However, the
specific question we addressed in
Galion was “whether, pursuant to [Rule
1-015(C)], a party to be brought in by amendment must receive notice of the
action within the time provided by the statute of limitations.”
Galion,
99 N.M. at 404, 658 P.2d at 1131. We noted that “[t]he rationale behind
allowing an amendment to relate back is that the statute of limitations should
not be used mechanically to prevent adjudication of a claim where the real
parties in interest were sufficiently alerted to the proceedings or were
involved in them unofficially from an early stage.”
Id. at 406, 658 P.2d
at 1133 (internal quotation marks and citation omitted). Conversely, we
recognized the concern “that, stretched to its limit, [our] interpretation
would permit the addition of a party at any time.”
Id. We addressed that
concern by noting that, where there exists a substantial identity of interest,
the outer limit of time for notice would be “the reasonable time permitted
under the rules of civil procedure for service of process.”
Id.;
see
Bachicha,
2001-NMCA-048, ¶ 1 (holding that “the time for commencing an
action under Rule 1-015(C) is the same as for service of process under Rule
1-004(F) NMRA”).
{45} In sum, our holding
in
Galion was not that a plaintiff may at any time add a defendant who
has a substantial identity of interest with a previously named defendant.
Instead, our holding was that, where a substantial identity of interest exists,
the period in which notice must be received is not confined by the statute of
limitations, but also includes the reasonable time allowed under the rules of
civil procedure for the service of process.
Galion, 99 N.M. at 407, 658
P.2d at 1134. There still remain the questions of whether GEC received notice
of the amendment such that it was not prejudiced and whether GEC knew or should
have known that, but for a mistake concerning GEC’s identity, the Harton
Plaintiffs would have brought the action against GEC.
{46} The Harton
Plaintiffs’ remaining assertions regarding GEC’s involvement in the underlying
controversy and GEC’s participation in aspects of the litigation do not answer
these questions. The factual and procedural history of the consolidated cases
demonstrates that the Harton Plaintiffs were understandably confused about
GEC’s role in the underlying controversy. However, the Harton Plaintiffs’
claims regarding GEC’s role demonstrate that they had ample information to
justify naming GEC as a defendant from the outset. And, in fact, the Harton Plaintiffs
did name GEC as a defendant in their original complaint. However, that
complaint did not contain any allegations with respect to GEC, and subsequent
amendments to the complaint dropped reference to GEC altogether. More
importantly, the Harton Plaintiffs never served GEC with process as required by
Rule 1-004(C).
See Ortiz v. Shaw, 2008-NMCA-____ , ¶¶ 1,7, ____
N.M. _____ , _____ P.3d ____ (Ct. App. 27,110 (filed June 19, 2008)] (reversing
default judgment against defendant who, despite actual knowledge of the suit,
was never properly served).
{47} We are also
unpersuaded that GEC’s participation in aspects of the litigation below gave it
sufficient notice that it could be added as a defendant to the Harton Action at
trial. The Harton Plaintiffs fail to identify any aspect of GEC’s participation
in the litigation that went beyond its role as a defendant to the Capco Action.
Cf. Apodaca v. AAA Gas Co.,
2003-NMCA-085, ¶ 73,
134 N.M. 77,
73
P.3d 215 (stating, in the analogous context of amending pleadings to conform to
the evidence when issues are tried by implied consent, that implied consent is
absent when the evidence is relevant to issues already within the pleadings).
The Harton Plaintiffs correctly point out that GEC had notice of the December 7,
2004, trial setting. However, GEC’s notice of that setting as a defendant to
the Capco Action does not necessarily amount to notice that it would need to
defend itself against the Harton Action. To the contrary, GEC had reason to
believe that the Harton Plaintiffs decided not to pursue claims against it
because they never served GEC with process and deleted all reference to GEC
from their pleadings.
{48} Moreover, GEC’s
failure to appear at trial to defend itself in the Capco Action, while
incredibly unwise, cannot justify a judgment against it in the Harton Action
based on a trial amendment for which GEC had no notice or opportunity to
defend. The critical issue is whether the timing of the amendment was
prejudicial to GEC. We have previously stated that “[a] defendant added after
trial would have no opportunity to defend itself on the merits, as the
proceedings would already have concluded.”
Wirtz v. N.M. Educ. Ret. Bd.,
1996-NMCA-085, ¶ 20,
122 N.M. 292,
923 P.2d 1177. Under these circumstances,
contrary to Rule 1-015(C), “a newly added defendant will suffer prejudice in
maintaining its defense on the merits.”
Wirtz,
1996-NMCA-085, ¶ 20.
{49} We conclude that the
amendment adding GEC as a defendant to the Harton Action followed by immediate
entry of a money judgment against it violated Rule 1-015(C)(1) because, under
the circumstances of this case, GEC did not have sufficient notice of, and was
prejudiced by, the amendment. Additionally, the judgment against GEC in the
Harton Action violated GEC’s due process rights.
See Peralta, 485 U.S.
at 84 (“[A] judgment entered without notice or service is constitutionally
infirm[.]”). Adding GEC as a party was permissible, but we vacate the district
court’s judgment against GEC with respect to the Harton Action and remand.
{50} We also vacate the
district court’s order imposing discovery sanctions against GEC. GEC was not a
party to the Harton Action, and the Harton Plaintiffs did not file their motion
to compel discovery against GEC. Although there was understandable confusion
regarding the roles of GEC and the Subsidiaries in the underlying dispute, the
proper avenue for resolving that confusion would have been for the Harton
Plaintiffs to name GEC as a defendant and serve it with discovery requests.
Again, the Harton Plaintiffs had ample information regarding GEC’s possible
involvement in the underlying controversy to justify naming GEC as a defendant.
{51} However, because GEC
was not a party to the Harton Action, the district court was without authority
to strike GEC’s witnesses and defenses with respect to the Harton Action. At
most, the district court had the authority to hold GEC in contempt as a
nonparty.
See Smith v. FDC Corp.,
109 N.M. 514, 523,
787 P.2d 433, 442
(1990) (holding that, under Rule
1-037 NMRA, only contempt is available as a
discovery sanction against a nonparty; the broader sanctions available under
Rule 1-037(B)(2) “may only be directed against a nonresponsive
party”).
We conclude that the district court abused its discretion by imposing discovery
sanctions against GEC because GEC was not a party to the Harton Action and
because the Harton Plaintiffs never served GEC with discovery requests.
{52} In light of our
holding that the district court erred in permitting the trial amendment adding
GEC as a defendant to the Harton Action, GEC’s claim regarding the Harton
Plaintiffs’ punitive damages award is moot. We therefore solely address GEC’s
claim with respect to the Capco Plaintiffs’ punitive damages award, which GEC
assails on two fronts. First, GEC claims that the award was not supported by
substantial evidence. Second, GEC asserts that the award violated GEC’s
substantive due process rights.
{53} Our review of the
record indicates that this issue was not preserved for appellate review because
GEC did not invoke a ruling by the district court.
See Rule
12-216(A)
NMRA (“To preserve a question for review, it must appear that a ruling or
decision by the district court was fairly invoked[.]”). GEC, in its statement
of preservation on punitive damages generally, cites portions of its motion to
vacate. However, GEC’s motion to vacate was directed largely at the effects of
the trial amendment adding GEC to the Harton Action. The brief in support of
the motion to vacate contains only a single sentence referring to the judgment
in favor of the Capco Plaintiffs: “The Judgment entered for Capco is . . .
‘different in kind from or exceeds the amount prayed for’ in Capco’s demand for
judgment, and should . . . be vacated pursuant to Rule 1-054[(C) NMRA].”
{54} GEC fails to point
to—nor can we find—any portion of the record demonstrating that GEC made—or the
district court considered—the arguments GEC made on appeal. GEC’s conclusory
reference to Rule 1-054(C) does not suffice to put the district court on notice
regarding the alleged substantial evidence and substantive due process
shortcomings of the award. This case is therefore unlike
Aken v. Plains
Electric Generation & Transmission Cooperative, Inc.,
2002-NMSC-021, ¶¶
9-10,
132 N.M. 401,
49 P.3d 662, in which our Supreme Court considered a
challenge to a punitive damages award because the record showed that the
defendant properly raised the issue in a motion for reconsideration.
Accordingly, we will not consider GEC’s claims regarding the punitive damages
award in favor of the Capco Plaintiffs.
4. GEC Waived Its Affirmative Defense Under
Section 53-17-20
{55} GEC maintains that
the Capco Plaintiffs were precluded from filing suit under Section 53-17-20(A),
which provides that “[n]o foreign corporation transacting business in this
state without a certificate of authority shall be permitted to maintain any
action, suit or proceeding in any court of this state, until the corporation
has obtained a certificate of authority.” GEC raised this issue for the first
time in its motion to vacate the judgment. “Generally the courts have held that
failure to plead an affirmative defense results in the waiver of that defense;
and it is excluded as an issue.”
United Nuclear Corp. v. Gen. Atomic Co.,
93 N.M. 105, 120,
597 P.2d 290, 305 (1979);
see Rule
1-008(C) NMRA (“In
pleading to a preceding pleading, a party shall set forth affirmatively . . .
any other matter constituting an avoidance or affirmative defense.”); Rule
1-012(H) (regarding waiver or preservation of certain defenses).
{56} GEC argues that the
Capco Plaintiffs’ failure to allege in their complaint that Capco had a
certificate of authority constituted a failure to state a valid claim for
relief. GEC cites the case of
Sundance Mechanical & Utility Corp. v.
Atlas,
109 N.M. 683, 688,
789 P.2d 1250, 1255 (1990), for the proposition
that the defense of failure to state a claim upon which relief can be granted
can be raised at any time, including on appeal. However, GEC can only invoke
Sundance
Mechanical & Utility Corp. if the Capco Plaintiffs’ omission amounts to
a failure to state a valid claim for relief. We are not persuaded that it does.
{57} First, GEC cites no
authority to support its claim that a foreign corporation must allege that it
has obtained a certificate of authority under Section 53-17-20(A) in order to
state a valid claim for relief. Instead, GEC attempts to analogize the
requirements of Section 53-17-20(A) to those of NMSA 1978, §
60-13-30(A)
(1977), which was the statute at issue in
Sundance Mechanical & Utility
Corp. Section 60-13-30(A) governs suits by contractors to recover
compensation for contracting work, and provides that
[n]o contractor shall act as agent
or bring or maintain any action in any court of the state for the collection of
compensation for the performance of any act for which a license is required by
the Construction Industries Licensing Act without alleging and proving that
such contractor was a duly licensed contractor at the time the alleged cause of
action arose.
Sundance Mech. & Util. Corp., 109 N.M at 687, 789
P.2d at 1254.
{58} Section 53-17-20(A)
is not analogous to Section 60-13-30(A) because the latter contains specific
language regarding a pleading requirement, while the former contains no express
or implied pleading requirement. The sole requirement of Section 53-17-20(A) is
that a plaintiff obtain a certificate of authority in order to bring or
maintain an action in New Mexico.
Cf. Riblet Tramway Co. v. Monte Verde
Corp., 453 F.2d 313, 317 (10th Cir. 1972) (noting that predecessor to
Section 53-17-10(A) “creates only a temporary disability which can be overcome
. . . by complying with the corporate authorization provisions then in force”).
Further weakening GEC’s argument is the fact that, in
Sundance Mechanical
& Utility Corp., our Supreme Court
held that the plaintiff
contractor’s failure to allege that he was licensed at the time he performed
the work was not fatal where the defendant failed to raise the issue before
trial and the parties tried the issue by consent. 109 N.M. at 690, 789 P.2d at
1257.
{59} Second, the relevant
case law indicates that compliance with so-called “closed door” statutes, such
as Section 53-17-20(A), raises a question regarding the plaintiff’s capacity to
sue.
See, e.g.,
Zelinger v. Uvalde Rock Asphalt Co.,
316
F.2d 47, 53 (10th Cir. 1963) (“[T]he failure of a foreign corporation to comply
with the cited [closed door] statute goes to its capacity to sue[.]”);
Chet
Adams Co. v. James F. Pedersen Co.,
413 S.E.2d 827, 829
(S.C.
1992) (“[C]ompliance with this [closed door] statute affects a foreign
corporation’s capacity to sue[.]”);
Fin Ag, Inc. v. Hufnagle, Inc., 700
N.W.2d 510, 515 (Minn. Ct. App. 2005) (“[T]he right to maintain an action
relates to the capacity to sue[.]” (internal quotation marks and citation
omitted),
aff’d, 720 N.W.2d 579 (Minn. 2006)). We agree with those
jurisdictions holding that a plaintiff’s compliance with Section 53-17-20(A)
involves a question regarding the plaintiff’s capacity to sue.
{60} A defendant wishing
to assert the defense of a plaintiff’s lack of capacity to sue must comply with
Rule
1-009(A) NMRA. Rule 1-009(A) provides that “[w]hen a party desires to
raise an issue as to . . . the capacity of any party to sue or be sued . . . [such
party] shall do so by specific negative averment, which shall include such
supporting particulars as are peculiarly within the pleader’s knowledge.” Our
Supreme Court has held that the issue of a plaintiff’s capacity to sue is
waived if not raised by motion or answer.
Hugh K. Gale Post No. 2182 VFW v.
Norris,
53 N.M. 58, 62,
201 P.2d 777, 779 (1949);
see Zelinger, 316
F.2d at 53 (holding that failure to comply with a closed door statute “is a
matter of defense to be pleaded by the defendant in bar of the action”);
Chet Adams Co., 413 S.E.2d at 829 (“[T]he defense of capacity to sue can be
waived by a defendant if not raised.”);
Fin Ag, Inc., 700 N.W.2d at 515
(“Unlike challenges to standing and subject-matter jurisdiction, a challenge to
a litigant’s capacity to sue is waivable.”).
Cf. Hammond Screw Mach. Co.
Ltd. v. Sullivan, No. 83 C 1250, 1985 WL 783 at *1 (N.D. Ill. Apr. 19,
1985) (Mem.)) (holding that, “no matter how the defense [of failure to obtain a
certificate of authority] is characterized, it is waived if the defense is not
raised in an answer or in a timely Rule 12(b) motion”). Accordingly, we
conclude that GEC waived this issue by failing to raise it as an affirmative
defense in its answer or by motion.
{61} We reverse the
judgment of the district court against GEC with respect to the Harton Action,
as well as the order imposing discovery sanctions against GEC, and remand for
further proceedings. The judgment against GEC in the Capco Action is affirmed
in all respects.
MICHAEL D. BUSTAMANTE, Judge.
RODERICK T. KENNEDY, Judge
Topic Index for Capco Acuisub, Inc. v. Greka Energy
Corp., No. 25,642
AE-PA Preservation of
Issues for Appeal
CP-AM Amendments to
Pleadings
CP-EA Entry of Appearance
CP-ID Indispensable Parties
CP-RP Real Party in
Interest
CP-SB Substitution of
Parties