DIGESU V. WEINGARDT, 1978-NMSC-017, 91
N.M. 441, 575 P.2d 950 (S. Ct. 1978)
Mario DiGESU and Catherine DiGesu,
Plaintiffs-Appellees,
vs.
Wilfred WEINGARDT, Defendant-Appellant.
SUPREME COURT OF NEW MEXICO
1978-NMSC-017, 91 N.M. 441, 575 P.2d 950
Wollen & Segal, Sylvain Segal, Jr.,
Albuquerque, for defendant-appellant.
Branch & Coleman, Turner W. Branch,
Arthur H. Coleman, Rhonda, P. Backinoff, Albuquerque, for plaintiffs-appellees.
EASLEY, J., wrote the opinion. McMANUS,
C.J., and FEDERICI, J., concur.
{1} Mario DiGesu and
Catherine DiGesu, plaintiffs-appellees, (DiGesu) brought a declaratory judgment
action against Wilfred Weingardt, defendant-appellant, (Weingardt) to void a
partial lease of a liquor license. The trial court granted summary judgment for
DiGesu. Weingardt appeals. We affirm.
{2} The issue is whether the
parties, in splitting the liquor license and operating separate establishments
on adjoining premises under a lease agreement, were in violation of the state
regulation requiring that a license be leased in its "entirety," thus
making the lease void as being against public policy.
{3} DiGesu, as holder of the
liquor license, entered into a lease agreement with Weingardt, as lessee, on
May 1, 1971, purporting to lease to him a part of his New Mexico Liquor
Dispenser's License No. 787 in Cedar Crest, New Mexico, for two years with two
options to renew. On February 4, 1976, just prior to Weingardt exercising the
second option, DiGesu notified Weingardt by letter of various alleged
violations of the lease agreement which he asserted constituted a breach of the
agreement and for which he threatened suit to terminate the lease.
{4} On February 24, 1976,
DiGesu filed suit seeking a declaratory judgment that the lease agreement was
null and void as a result of Weingardt's alleged breach. Weingardt answered and
counterclaimed. Then DiGesu filed a motion for summary judgment on April 20,
1977, alleging that the lease was void as illegal and against public policy
because it reserved to DiGesu the right to use the license on a portion of the
premises not used by Weingardt. Therefore failed to lease "all" of
the license to Weingardt as required by Regulation 13(G) of the New Mexico
Department of Alcoholic Beverage Control (A.B.C.). The district court granted
the motion for summary judgment.
{5} Regulation 13(G),
supra,
states:
A Licensee, desiring to designate an Agent Lessee to operate
the liquor license shall file with the Director, Department of Alcoholic
Beverage Control, his request for the approval of such designation which shall
include all of the information concerning the proposed Agent Lessee as is required
of an applicant for a liquor license and a certified true copy of the lease
agreement. The lease agreement must contain provisions that the license is
leased in its entirety. (Emphasis supplied).
{6} The lease agreement
provided in its paragraph numbered XXII,
inter alia, that:
Lessee further covenants and agrees that the Lease herein
granted covers use of such license on the premises described * * * above. Lessor
specifically reserves the right to use such license on the remaining designated
premises, to-wit, all recreational area encompassed in the "original
designation of premises" on file with the Liquor Control Division of the
Bureau of Revenue of the State of New Mexico. (Emphasis supplied).
{7} The clear intent of the
A.B.C. regulation is to prevent the split use of a single liquor license, since
such splitting would be, among other things, an obvious way to circumvent §
46-5-24, N.M.S.A. 1953, which
{*443} imposes
a limit on the number of liquor licenses allowed in this state. The A.B.C. regulation,
therefore, manifests the public policy of this state. Contracts in violation of
the public policy of the state cannot be enforced.
Granger v. Caviness,
64 N.M. 424,
329 P.2d 439 (1958);
Davis v. Savage,
50 N.M. 30,
168 P.2d
851 (1946). The lease involved herein is void as against public policy.
{8} The lease is, moreover,
not severable. The obligations under the lease are not divisible from the
obligations under the reservation clause. There is absolutely no indication in
the language used by the parties that they intended the lease agreement to be
severable and the intent of the parties, as ascertained from the express
language used in the lease, controls.
Leonard v. Barnes,
75 N.M. 331,
404 P.2d 292 (1965). We cannot attempt to make the lease legal by deleting the
paragraph containing the reservation clause, since to do so would be to change
that obvious express intent. This Court's duty is confined to interpretation of
the contract made by the parties and we will not alter their intent or make a new
agreement for them by rewriting the contract.
Kimberly, Inc. v. Hays,
88
N.M. 140,
537 P.2d 1402 (1975);
Leonard v. Barnes, supra; Davies v. Boyd,
73 N.M. 85,
385 P.2d 950 (1963);
Sanders v. Freeland,
64 N.M. 149,
325
P.2d 923 (1958);
Fuller v. Crocker,
44 N.M. 499,
105 P.2d 472 (1940). We
hold, as a matter of law, that the lease agreement was not intended by the
parties to be severable.
Arrow Gas Company of Dell City, Texas v. Lewis,
71 N.M. 232,
377 P.2d 655 (1962).
See Prudential Insurance Company of America
v. Anaya, 78 N.M. 101,
428 P.2d 640 (1967).
{9} Since the lease is void
ab initio as a matter of law, there is no room for this Court of consider
enforcing it in any way by the use of our equitable powers.
{10} Weingardt's claim that
the district court lacked jurisdiction because the action herein amounted to an
appeal from an administrative action has no merit.
{11} The judgment of the
trial court is affirmed.
McMANUS, C.J., and FEDERICI, J., concur.