Fleet Mortgage Corporation (Fleet) filed a complaint for foreclosure on November 14, 1988, based upon a note and mortgage given by defendants Ronald and Pamela Schuster to International State Bank that was subsequently assigned to Fleet. Both Schusters counterclaimed against Fleet, alleging that Fleet had agreed to accept a deed in lieu of foreclosure, that Ronald had delivered said deed, and that the actions of the parties constituted a complete discharge of the defendants from any further
The Schusters had both signed the promissory note secured by a mortgage on a house in Colfax County. The Schusters defaulted on the note payment due April 1, 1988. The Schusters divorced on September 7, 1988. The court awarded the mortgaged property to Ronald, and he was required to pay the note and to indemnify and hold Pamela harmless thereon. Ronald obtained a quitclaim deed from Pamela as part of the documents requested by Fleet. What legal significance, if any, is attached to the giving of the quitclaim deed by Pamela forms the basis of this appeal.
Summary judgment is appropriate if no genuine issue as to any material fact exists, so that the movant is entitled to judgment as a matter of law. State v. Integon Indem. Corp., 105 N.M. 611, 612, 735 P.2d 528, 529 (1987); SCRA 1986, 1056(C). Pamela's claims are based upon her either being a party to or a third-party beneficiary of the "agreement" between Fleet and Ronald to take a deed in lieu of foreclosure. We find that Pamela was neither. The "agreement" at issue was an accord. An accord is "an executory agreement to settle a claim." Western Bank v. Biava, 109 N.M. 550, 551, 787 P.2d 830, 831 (1990). Pamela was not a party to the accord. She no longer had an interest in the property that was subject to the accord. The divorce decree entered September 7, 1988, awarded the property to Ronald, and he was required to pay the note and to indemnify and hold Pamela harmless. Pamela contends that while she may not have been a named party to the accord, the agreement did call for her to execute and deliver the quitclaim deed. The issuing of the quitclaim deed was a ministerial act required by the court judgment and decree to carry out the judge's order. A ministerial act is:
Black's Law Dictionary 889 (5th ed. 1979). Furthermore, there was no need for Pamela to execute a quitclaim deed since the court could have proceeded pursuant to SCRA 1986,1-070, which states in relevant part:
Finally, Pamela did in fact execute the quitclaim deed. This act did not make her a party to the accord.
It is a general rule of law that one who is not a party to a contract cannot maintain suit upon it. Staley v. New, 56 N.M. 756, 250 P.2d 893 (1952). Pamela, therefore, contends that since she is not a party to the agreement, she was a third-party beneficiary to the accord. A third party may be a beneficiary of such contract, and as a beneficiary may have an enforceable right against a party to a contract. Permian Basin Inv. Corp. v. Lloyd, 63 N.M. 1, 312 P.2d 533 (1957). Whether a party is a third-party beneficiary
Summary judgment also was proper on the issue of prima facie tort. Fleet set out a prima facie showing of entitlement to summary judgment. See Koenig v. Perez, 104 N.M. 664, 666, 726 P.2d 341, 343 (1986). This showing consisted of demonstrating there were no facts, whatsoever, supporting the necessary prima facie tort element of intent to injure plaintiff. Schmitz v. Smentowski, 109 N.M. 386, 394, 785 P.2d 726, 734 (1990). The burden then shifted to Pamela "to show at least a reasonable doubt as to whether a genuine issue for trial exists." Koenig, 104 N.M. at 666, 726 P.2d at 343. Looking at the record as a whole, we are unable to find any material fact in issue, let alone any material fact supporting the element of intent. See Pharmaseal Laboratories, Inc. v. Goffe, 90 N.M. 753, 568 P.2d 589 (1977).
Appellant raises five additional issues. We find, however, that our holding that Pamela was neither a party to nor a third-party beneficiary of the accord is dispositive of those issues.
Finally, any remedy available to Pamela would have to be based on an action against her husband under the indemnity and hold harmless provision of the divorce judgment and decree. In view of the foregoing, the judgment of the trial court is affirmed.
IT IS SO ORDERED.
BACA and MONTGOMERY, JJ., concur.