Bank of America N.A. v. Roybal

• Court: New Mexico Court of Appeals
• Decided: March 27, 2019
• Docket: A-1-CA-37408
• Status: Unpublished

Opinion

This decision was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of non-precedential dispositions. Please also note that this electronic decision may contain computer-generated errors or other deviations from the official paper version filed by the Supreme Court.

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 BANK OF AMERICA, N.A.,

3 Plaintiff-Appellee,

4 v. No. A-1-CA-37408

5 JEROME T. ROYBAL and 6 AMY J. ROYBAL,

7 Defendants-Appellants.

8 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 9 Nan G. Nash, District Judge

10 Snell & Wilmer L.L.P. 11 Gregory J. Marshall 12 Jeanne Y. Sohn 13 Albuquerque, NM

14 for Appellee

15 Jerome T. Roybal 16 Amy J. Roybal 17 Santa Fe, NM

18 Pro Se Appellants

19 MEMORANDUM OPINION

20 VANZI, Judge. 1 {1} Defendants, self-represented litigants, appeal from the district court’s order

2 confirming sale and special master’s report. In our notice of proposed disposition, we

3 proposed to summarily affirm because Defendants had not preserved their issue.

4 Defendants filed a memorandum in opposition, which we have duly considered.

5 Remaining unpersuaded, we affirm.

6 {2} In their memorandum in opposition, Defendants argue that they had preserved

7 the issue because they filed their notices in the district court, which included language

8 that “until and unless some objection against [their] declaration is made, there is no

9 controversy raised regarding th[eir] declaration[,] so it must be taken that the Order

10 Confirming Sale[,] as well as the Special Master’s Report, which contained the

11 Special Master’s Deed, are all invalid.” [MIO 2-3 (emphasis, internal quotation marks,

12 and citation omitted)] Defendants contend that, because the district court did not

13 oppose such notice, the issue is ripe for appeal. [See MIO 3-7]

14 {3} First, Defendants are incorrect that they fairly invoked a ruling or decision by

15 the district court because filing notices announcing some intent does not seek a ruling

16 or decision by the district court. Pursuant to the Rules of Civil Procedure for the

17 District Courts, “[a]n application to the court for an order shall be by motion which,

18 unless made during a hearing or trial, shall be made in writing, shall state with

2 1 particularity the grounds therefor, and shall set forth the relief or order sought. The

2 requirement of writing is fulfilled if the motion is stated in a written notice of the

3 hearing of the motion.” Rule 1-007(B)(1) NMRA (emphases added); State v. Nichols,

4 2006-NMCA-017, ¶ 27, 139 N.M. 72, 128 P.3d 500 (reiterating that, “in order to

5 preserve an error for appeal, it is essential that the ground or grounds of the objection

6 or motion be made with sufficient specificity to alert the mind of the trial court to the

7 claimed error or errors, and that a ruling thereon then be invoked” (emphasis added)

8 (alteration, internal quotation marks, and citation omitted)). Defendants filed no such

9 motion or notice of hearing of the motion, or otherwise requested an order or ruling

10 on their notices. [See generally RP]

11 {4} Additionally, the Local Rules of the District Court of the First Judicial District

12 state that:

13 At the expiration of all responsive times, under Rule 1-007.1 NMRA, the 14 movant shall submit to the judge assigned to the case a copy of the 15 motion, any response, any reply, and a copy of a request for hearing 16 (after filing the request with the clerk of the court) and notice of hearing 17 form, if a party is seeking a hearing, in a package. The submission of the 18 . . . package alerts the court that the motion is ripe for decision. The 19 package shall be submitted either in electronic form to the judge’s e-mail 20 address or in hard copy form, or both, depending on the presiding 21 judge’s preference. Each judge’s preference for the form of the package 22 will be listed on the court’s website. The notice of hearing must be 23 submitted in Word or WordPerfect when the package is submitted

3 1 electronically. Copies of the package submission must be served on all 2 parties and the service must be indicated on the transmittal.

3 LR1-201(D) NMRA (emphases added). Simply waiting for time to pass after a notice

4 has been filed meets neither of the rules’ requirements.

5 {5} Second, the issue asserted on appeal, which Defendants reassert as the

6 “preserved issue” before this Court, is: in light of the purported voidance of the

7 instruments, “can the special master’s deed and subsequently the approval of sale be

8 anything but void, and if so how so?” [MIO 8] As we stated in our calendar notice,

9 this issue was not first raised in the district court, and we will not consider it on

10 appeal. See Rule 12-321(A) NMRA (“To preserve an issue for review, it must appear

11 that a ruling or decision by the trial court was fairly invoked.”); Crutchfield v. N.M.

12 Dep’t of Taxation & Revenue, 2005-NMCA-022, ¶ 14, 137 N.M. 26, 106 P.3d 1273

13 (“[O]n appeal, the party must specifically point out where, in the record, the party

14 invoked the court’s ruling on the issue[,]” and “[a]bsent that citation to the record or

15 any obvious preservation, we will not consider the issue.”).

16 {6} Accordingly, for the reasons stated in our notice of proposed disposition and

17 herein, we affirm.

18 {7} IT IS SO ORDERED.

4 1 _______________________________ 2 LINDA M. VANZI, Judge

3 WE CONCUR:

4 ______________________________ 5 JACQUELINE R. MEDINA, Judge

6 ______________________________ 7 MEGAN P. DUFFY, Judge