(specially concurring).
I concur in the result in this case as set out in the plurality opinion, but I do not concur in all of the rationale.
The elusiveness of the distinction between “substance” and “procedure” is well known, especially as that distinction relates to statutes of limitations. Sun Oil, as the plurality opinion points out, stands for the notion that statutes of limitations are often viewed as “procedural” as a matter of tradition. But Sun Oil more starkly stands for the proposition that much confusion exists because statutes of limitations can be both procedural and substantive, depending upon context. The Supreme Court noted that whether or not a statute of limitations is substantive or procedural depends upon whether the question is being asked for conflict of laws, full faith and credit or Erie doctrine purposes. Justice Scalia said that, “[ejxcept at the extremes, the terms ‘substance’ and ‘procedure’ precisely describe very little except a dichotomy, and what they mean in a particular context is largely determined by the purposes for which the dichotomy is drawn.” Sun Oil, 486 U.S. 717, 726, 108 S.Ct. 2117, 2124. In his concurrence, Justice Brennan amplified on this chameleon-like dichotomy.
Statutes of limitations ... defy characterization as either purely procedural or purely substantive. The statute of limitations a State enacts represents a balance between, on the one hand, its substantive interest in vindicating substantive claims and, on the other hand, a combination of its procedural interest in freeing its courts from adjudicating stale claims and its substantive interest in giving individuals repose from ancient breaches of law. A State that has enacted a particular limitations period has simply determined that after that period the interest vindicating claims becomes outweighed by the combination of the interests in repose and avoiding stale claims. One cannot neatly categorize this complicated temporal balance as either procedural or substantive.
Id., 486 U.S. at 736, 108 S.Ct. at 2129.
We need not and should not rely on the tenuous difference between substance and procedure to decide this case. In an appropriate case, a foreign state’s statute of limitations might very well be applied to a claim asserted in this forum, even though statutes of limitations are generally regarded as “remedial.”
To illustrate: It is undisputed that Mr. and Mrs. Nez were residents of El Paso at the time they purchased the truck. If they had remained residents of El Paso and defendants had repossessed the truck during a casual visit by the Nezes to some friends in San Juan County, and if Mr. and Mrs. Nez had thereafter brought suit in San Juan County against defendant M Bank for breach of contract, we might well hold that the Texas statute of limitations was applicable to this breach-of-contract claim. In that case New Mexico would have very little relation to the parties’ dispute; the lawsuit would be between residents of Texas suing for breach of a Texas contract.
Thus, I disagree with the statement in the plurality opinion that a choice-of-law provision must specifically describe remedial limitations and that, absent such a specific reference to remedial matters, the choice-of-law provision relates only to substantive matters such as interpretation of the contract. I see no reason why the contract must spell out in detail everything covered by the provision and why a simple statement such as “This contract shall be governed by the laws of the State of Texas” should not, in an appropriate case, be given effect and applied to all disputes based on the contract. This would include disputes about the validity and interpretation of the contract, as well as questions concerning its performance or breach, and might even include questions concerning the statute of limitations applicable to a claim arising from a breach.
Here, however, Mr. and Mrs. Nez were residents of New Mexico at the time the truck was repossessed and when suit was brought. They sued for conversion and for violations of the New Mexico Uniform Commercial Code and the New Mexico Unfair Practices Act. (In addition, they sued under the Navajo Tribal Code for wrongful repossession; but we need not, on this appeal, consider any questions of choice of law which might arise in applying Navajo law in a New Mexico court.) In other words, New Mexico residents sued in a New Mexico court for violations of New Mexico law. In these circumstances I see no reason not to give them the benefit of the New Mexico statute of limitations on their claims, assuming it is longer than the corresponding Texas statute.
Mr. and Mrs. Nez also sued for breach of contract, and this might raise the question whether the New Mexico or the Texas statute of limitations on claims for breach of contract is applicable. However, it appears that the Texas limitations period for actions sounding in contract is four years (Tex.Civ.Prac. & Rem.Code Ann. § 16.004 (Vernon 1986)), whereas the two-year period relied on by defendants and the district court applies to the torts of trespass, conversion, taking or detaining of personal property of another, personal injury, forcible entry and detainer, and forcible detain-er {id. § 16.003(a)). Thus, even if the Texas statute of limitations for breach of contract applies, the Nez’ claims for breach of contract were timely filed.
Accordingly, focusing on plaintiff’s claims for various torts (injuries to property) under New Mexico law, I would hold that the New Mexico four-year statute of limitations (NMSA 1978, § 37-1-4) applies. Focusing on plaintiffs’ breach-of-contract claims, I conclude that those claims were timely filed under either the Texas statute or New Mexico’s six-year statute of limitations (NMSA 1978, § 37-1-3). I therefore agree that the summary judgment below was erroneous.