Bernier v. Bernier

• Court: New Mexico Court of Appeals
• Decided: March 30, 2011
• Docket: 30,401
• Status: Unpublished

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 THERESE BERNIER, individually 8 and as Trustee of the Therese Bernier 9 Trust,

10 Plaintiff-Appellant,

11 v. No. 30,401

12 HAROLD BERNIER, deceased, 13 replaced by WILLIAM DOUGLAS 14 BERNIER, as substitute representative,

15 Defendant-Appellee.

16 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 17 Barbara Vigil, District Judge

18 Ilyse D. Hahs, Attorney at Law, LLC 19 Ilyse Hahs-Brooks 20 Albuquerque, NM

21 G. Holdt Garver Chartered 22 G. Holdt Garver 23 Albuquerque, NM

24 L. Helen Bennett 25 Albuquerque, NM

26 for Appellant

27 Cuddy & McCarthy, LLP 28 Aaron J. Wolf 1 Y. Jun Roh 2 Santa Fe, NM

3 for Appellee

4 MEMORANDUM OPINION

5 SUTIN, Judge.

6 Plaintiff appeals from three orders of the district court, which award Defendant

7 costs and attorney fees as sanctions under Rule 1-011 NMRA. Initially, we issued an

8 order of limited remand for the district court to address Defendant’s motion to modify

9 the judgment to add more attorney fees subsequently incurred, which was pending at

10 the time Plaintiff filed a notice of appeal. On remand, the district court granted the

11 motion for additional attorney fees and Plaintiff appealed from that order as well. We

12 issued a notice of proposed summary disposition, proposing to vacate the award of

13 sanctions and remand. Both Defendant and Plaintiff have filed a memorandum in

14 opposition to our notice. We are not persuaded by either party’s arguments. As a

15 result, we vacate the sanctions award and remand for findings of fact and conclusions

16 of law.

17 In response to our notice, Defendant argues that vacating the order and

18 remanding is inappropriate because Plaintiff did not timely request or tender proposed

19 findings of fact and conclusions of law contrary to Rule 1-052 NMRA and, therefore,

20 Plaintiff has waived any specific findings for appellate review. [Defendant’s MIO 4-

2 1 9] Plaintiff has preserved the claimed error for our review, however. See Credit

2 Institute v. Veterinary Nutrition Corp., 2003-NMCA-010, ¶ 15, 133 N.M. 248, 62

3 P.3d 339 (observing a distinction between not requesting specific findings and

4 preserving error for appellate review); see also Martinez v. Martinez, 101 N.M. 88,

5 93, 678 P.2d 1163, 1168 (1984) (observing that a party can preserve their objection

6 to the award of attorney fees without requesting findings and conclusions so long as

7 the claimed error has been called to the attention of the district court). We note that

8 Defendant also did not request specific findings from the district court. We are not

9 persuaded that the parties’ failure to request the appropriate findings that would

10 support their arguments should preclude appellate review of claimed error in regard

11 to imposition of sanctions that was preserved, particularly where the alleged error is

12 the failure to enter appropriate findings.

13 As the calendar notice states, our case law indicates that it is error to impose

14 Rule 1-011 sanctions without specific findings and conclusions identifying the

15 objectionable conduct and the basis for the amount of sanctions imposed. See, e.g.,

16 State ex rel. N.M. Highway & Transp. Dep’t v. Baca, 120 N.M. 1, 8, 896 P.2d 1148,

17 1155 (1995) (holding that where the district court did not explain why the grounds for

18 appeal were frivolous or pursued in bad faith, but “[i]nstead . . . found that the

19 [d]epartment acted in bad faith, vexatiously, wantonly and for oppressive reasons in

3 1 dismissing [the defendant] and in pursuing this litigation over the past four years[,]

2 [s]uch generalized conclusions, without more, do not justify a finding of bad faith

3 sufficient to support an attorney[] fee award”); Rivera v. Brazos Lodge Corp., 111

4 N.M. 670, 676, 808 P.2d 955, 961 (1991) (reversing and remanding for the district

5 court to enter findings regarding “the subjective knowledge of the relevant facts and

6 applicable law held by [the] appellant and his attorney at the time of filing” and to

7 “state the basis for the amount of sanctions awarded, including whether the hours

8 actually spent reasonably were necessary under the circumstances”). We are of the

9 view that, under the circumstances here, this Court may order appropriate findings to

10 be entered to permit appellate review, where an appellant has preserved that error,

11 regardless of whether the appellant submitted findings that the district court would

12 have rejected. For these reasons and those stated in our notice, we hold that the

13 district court erred by not entering findings that were sufficiently particularized to

14 support the attorney fee and cost awards.

15 As we have stated, Plaintiff also filed a memorandum in opposition to our

16 notice. We note that although our analysis proposed to agree with the arguments she

17 raised in her amended docketing statement [Amended DS 23-24], Plaintiff

18 nevertheless argues in her response to our notice that the attorney fee and cost awards

19 should be reversed without remand because there was no evidence in the record to

4 1 support them. [Plaintiff’s MIO 3-8] We are not persuaded. We will not presume that

2 no evidence supports the district court’s award of sanctions where the record suggests

3 there was evidence to support it and evidence that does not and where the specific

4 grounds for sanctions therefore is not clear on appeal. Under these circumstances, the

5 appropriate course of action is to remand. See Rivera, 111 N.M. at 676, 808 P.2d at

6 961.

7 As we did in our notice, we clarify that on remand the district court should enter

8 findings regarding the following: what subjective knowledge and specific conduct it

9 intended to sanction; whether, and if so in what manner, the initial filing of the

10 litigation itself was frivolous or brought in bad faith; why Plaintiff’s initial filing or

11 subsequent conduct offended Rule 1-011; whether the cost award was part of the Rule

12 1-011 sanction; and why the amount of the sanction assessed against Plaintiff herself

13 was appropriate to redress the objectionable behavior. See id.

14 For the reasons stated in our notice and in this opinion, we summarily vacate

15 the award of sanctions and remand for the appropriate findings of fact and conclusions

17 IT IS SO ORDERED.

18 __________________________________ 19 JONATHAN B. SUTIN, Judge

5 6 1 WE CONCUR:

2 _________________________________ 3 MICHAEL D. BUSTAMANTE, Judge

4 _________________________________ 5 MICHAEL E. VIGIL, Judge