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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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 ROBERTO L. CORDOVA and 8 JENNIE H. CORDOVA,
9 Plaintiffs/Counter-Defendants-Appellants,
10 v. NO. 28,208
11 JAIMIE R. CORDOVA and 12 STELLA S. CORDOVA, and 13 UNKNOWN CLAIMANTS,
14 Defendants/Counter-Plaintiffs-Appellees.
15 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 16 Richard J. Knowles, District Judge
17 Roberto L. Cordova 18 Jennie H. Cordova 19 Rio Rancho, NM
20 Pro Se Appellants
21 Lastrapes, Spangler & Pacheco, P.A. 22 Matthew M. Spangler 23 Rio Rancho, NM
24 for Appellants
25 Geer, Wissell & Levy, P.A. 26 Robert D. Levy 27 Jane C. Levy 28 Albuquerque, NM 1 for Appellees
2 1 MEMORANDUM OPINION
2 FRY, Chief Judge.
3 Plaintiffs Roberto and Jennie Cordova appeal the district court’s judgment
4 awarding their daughter-in-law, Defendant Stella Cordova, compensatory and
5 punitive damages for malicious abuse of process and intentional infliction of
6 emotional distress. The judgment was based on Plaintiffs’ filing of a foreclosure
7 action against Stella to foreclose a mortgage Roberto and Jennie held on property
8 owned by Stella. Roberto and Jennie argue on appeal that the district court’s
9 judgment is not supported by substantial evidence. We agree and, for the
10 following reasons, reverse the judgment against Roberto and Jennie.
11 BACKGROUND
12 In 1991, Jaimie Cordova, Roberto and Jennie’s son, and Stella, Jaimie’s
13 wife, purchased a printing company, Cordova Printing, from Roberto and Jennie.
14 Roberto and Jennie had owned and operated the business for some time prior to
15 Jaimie and Stella’s purchase, and Roberto continued to work at the business
16 following the purchase. In 1999, Jaimie and Stella purchased a commercial
17 property and moved the business into the new building. The building housed both
18 Cordova Printing and a number of other businesses that paid rent to Cordova
19 Printing. Roberto and Jennie helped Jaimie and Stella purchase the property by
3 1 loaning the couple approximately $271,000. The loan was secured by a mortgage
2 on the property, the terms of which were set out in a mortgage note. The note was
3 amended a number of times after Roberto and Jennie loaned additional funds to
4 Jaimie and Stella. Following the final amendment in June 2005, the principal
5 balance was approximately $690,000.
6 In July 2005, Jaimie died intestate, and Stella became the sole owner of
7 Cordova Printing and the commercial property. Following Jaimie’s death, Roberto
8 continued to work at the print shop and exercised complete control over the
9 business, including collecting rent from the other tenants, which was used to pay
10 the monthly installments Stella owed on the note.
11 Shortly after Jaimie’s death, Stella attempted to sell the business and the
12 property. However, Roberto asserted that Stella did not own the business and
13 interfered with Stella’s attempts to sell it. As a result of Roberto’s actions, Stella
14 filed a lawsuit against Roberto to establish her ownership of the property and on
15 February 10, 2006, she obtained a temporary restraining order against Roberto,
16 which required him to vacate the premises. On March 2, 2006, Stella and Roberto
17 entered into a global settlement agreement that resolved all pending issues between
18 them. Approximately two weeks later, on March 15, 2006, Roberto and Jennie
4 1 filed this foreclosure action against Stella alleging that the mortgage note was in
2 default.
3 Roberto and Jennie’s foreclosure complaint alleged that Stella was in default
4 on the loan because she had failed to make timely payments and because Roberto
5 had called the note pursuant to a provision that allowed the note to be made
6 payable in full for any reason upon thirty days’ notice. Roberto and Jennie
7 attached a letter to the complaint that Roberto’s attorney had sent to Stella in
8 December 2005 stating that Stella was in default on the note and that pursuant to
9 the terms of the note, Roberto was electing to call the entire balance payable
10 immediately.
11 In response, Stella filed a counterclaim against Roberto and Jennie seeking
12 damages for intentional infliction of emotional distress, malicious abuse of process,
13 and prima facie tort. Stella alleged that Roberto had control over the finances of
14 the company until February 2006, and that she therefore did not have sufficient
15 information to admit or deny the allegation that she was in default. In August
16 2006, the property was sold, and the district court dismissed Roberto and Jennie’s
17 foreclosure claim following their receipt of the balance due on the note. This left
18 only Stella’s counterclaims to be litigated.
5 1 Prior to trial, the district court concluded that the March 2006 settlement
2 precluded Stella from relitigating any claims that she could have brought in her
3 prior lawsuit against Roberto, apparently on the basis of res judicata or collateral
4 estoppel. The court entered an order barring the consideration of Roberto’s
5 conduct prior to the settlement for purposes of awarding compensatory damages
6 but allowing that conduct to be admissible for purposes of establishing punitive
7 damages and determining whether Roberto’s conduct was wilful, wanton, reckless
8 and intentional. Following the trial, the district court awarded Stella $40,000 in
9 compensatory and $100,000 in punitive damages on her claim for intentional
10 infliction of emotional distress and $53,300 in compensatory and $100,000 in
11 punitive damages on her claim for malicious abuse of process. The court
12 concluded that double recovery was not appropriate and therefore awarded Stella a
13 total judgment of $153,300. Roberto and Jennie appeal the judgment against them,
14 arguing that the district court’s judgment is not supported by substantial evidence
15 because Stella failed to prove the elements of both intentional infliction of
16 emotional distress and malicious abuse of process.
17 DISCUSSION
18 When reviewing a case for sufficiency of the evidence, we “resolve[] all
19 disputes of facts in favor of the successful party and indulge[] all reasonable
6 1 inferences in support of the prevailing party.” Las Cruces Prof’l Fire Fighters v.
2 City of Las Cruces, 1997-NMCA-044, ¶ 12, 123 N.M. 329, 940 P.2d 177 (filed
3 1996). In doing so, “[t]he question is not whether substantial evidence exists to
4 support the opposite result, but rather whether such evidence supports the result
5 reached.” Id. “Substantial evidence is such relevant evidence that a reasonable
6 mind would find adequate to support a conclusion.” Landavazo v. Sanchez, 111
7 N.M. 137, 138, 802 P.2d 1283, 1284 (1990). In reviewing the court’s judgment,
8 “we will not reweigh the evidence nor substitute our judgment for that of the fact
9 finder.” Las Cruces Prof’l Fire Fighters, 1997-NMCA-044, ¶ 12.
10 Intentional Infliction of Emotional Distress
11 Roberto and Jennie first argue that the district court erred in concluding that
12 Stella established all elements of her intentional infliction of emotional distress
13 claim. In order to prevail on such a claim, Stella was required to prove that “(1)
14 the conduct in question was extreme and outrageous[,] (2) the conduct of the
15 defendant was intentional or in reckless disregard of the plaintiff[,] (3) the
16 plaintiff’s mental distress was extreme and severe[,] and (4) there is a causal
17 connection between the defendant’s conduct and the claimant’s mental distress.”
18 Trujillo v. N. Rio Arriba Elec. Coop., Inc., 2002-NMSC-004, ¶ 25, 131 N.M. 607,
7 1 41 P.3d 333 (filed 2001) (internal quotation marks and citation omitted). “[T]he
2 failure of any one of the elements will defeat the claim.” Id. ¶ 27.
3 As an initial matter, Roberto and Jennie argue that the district court
4 erroneously considered evidence that it had previously ruled it would not consider
5 for purposes of compensatory damages. The district court ruled that because of the
6 global settlement between the parties, Stella would not be awarded compensatory
7 damages related to alleged conduct of Roberto committed before March 2, 2006,
8 the date of the settlement, but that “[a]ll conduct may be admissible as to the issue
9 of punitive damages and whether the alleged conduct of Roberto . . . was wilful,
10 wanton, reckless and intentional.”
11 Despite this ruling, the court’s determination that Stella established the
12 elements of intentional infliction of emotional distress relied on conduct that
13 occurred prior to the March 2006 settlement. For example, the court found that
14 “Stella . . . suffered physical and emotional pain when she received the Notice of
15 Default in December . . . 2005” and that she was “shocked and began to suffer
16 anxiety attacks, believing . . . she was going to lose everything” when she received
17 that letter. In addition, the court concluded that Stella experienced severe
18 emotional distress as a result of Roberto’s “filing false statements in pleadings”
19 and that “Stella . . . endured the extreme stress caused by worrying if the [c]ourt
8 1 would be able to discern the truth, that she did own Cordova Printing.” Putting
2 aside for the moment the “filing false claims” conclusion, the issue of who owned
3 Cordova Printing was explicitly resolved in the March 2006 settlement. Thus,
4 based on the district court’s ruling that it would not consider Roberto’s conduct
5 prior to the March 2006 settlement for purposes of determining compensatory
6 damages, the court should have not considered the effect the December 2005 letter
7 had on Stella or the fact that she was concerned that the court would not be able to
8 determine who actually owned the building. Both the letter and the assertion that
9 Roberto owned the business occurred prior to the March 2006 settlement. We
10 therefore limit our consideration of whether sufficient evidence supports the
11 judgment against Roberto and Jennie to evidence of Roberto’s post-settlement
12 conduct and disregard the court’s findings regarding the effect that Roberto’s pre-
13 settlement conduct had on Stella.
14 Roberto and Jennie argue that the only finding the court made regarding
15 post-settlement conduct was that Roberto and Jennie’s foreclosure suit falsely
16 stated that Stella was in default when Stella was not in fact in default on her loan.
17 The court concluded that Stella’s “emotional and physical suffering,” which began
18 when she received the notice of default letter in December, “was exacerbated when
19 she was served in March 2006 with the foreclosure action” and that “[s]he suffered
9 1 from insomnia, impaired ability to work, and impaired ability to parent her
2 children” and significant weight loss.
3 Stella contends that in addition to the false statements Roberto and Jennie
4 made in their pleadings, Roberto also engaged in extreme and outrageous conduct
5 when he violated a court order requiring him to sign a release of the mortgage so
6 that Stella could sell the property. However, the court’s findings that Stella
7 suffered severe emotional distress do not mention this alleged violation of a court
8 order in connection with Stella’s claim. Instead, the findings related to post-
9 settlement conduct focused only on the allegedly false statement of default made in
10 the foreclosure suit. Thus, there is no causal connection between the alleged
11 violation of the order and the distress the court found that Stella endured. See
12 Baldonado v. El Paso Natural Gas Co., 2008-NMSC-005, ¶ 27, 143 N.M. 288, 176
13 P.3d 277 (filed 2007) (explaining that there must be a causal connection between a
14 defendant’s conduct and the plaintiff’s distress). We therefore agree with Roberto
15 and Jennie that the only finding the court made to support the extreme and
16 outrageous conduct element of Stella’s claim for intentional infliction of emotional
17 distress is that Roberto and Jennie falsely stated in their complaint for foreclosure
18 that Stella was in default.
10 1 Roberto and Jennie argue that substantial evidence does not support the
2 court’s findings that Stella was not in default at the time the complaint was filed.
3 They contend that there was undisputed evidence at trial that Stella did not make
4 the March 1, 2006, payment due under the note, and that she was therefore in
5 default at the time the complaint was filed on March 15, 2006. In addition,
6 Roberto and Jennie contend that Stella was also in default by virtue of failing to
7 make a payment of the total amount due on the note after Roberto called the note in
8 December 2005. Because the statement in the foreclosure complaint was true,
9 Roberto and Jennie argue, Stella failed to prove that they engaged in extreme and
10 outrageous behavior, an essential element of her intentional infliction of emotional
11 distress claim.
12 Stella appears to contend that Roberto and Jennie failed to preserve this
13 argument because their attorney argued during closing that Stella was not in
14 default at the time the foreclosure action was filed. Contrary to Stella’s argument,
15 Roberto and Jennie’s proposed findings of fact and conclusions of law specifically
16 sought a finding from the court that “Stella was . . . in default [by] failing to pay
17 the monthly payment due under [t]he Note on March 1, 200[6]” and that she was in
18 default due to her failure “to pay all amounts due and payable” after Roberto called
19 the note in December 2005. Thus, Roberto and Jennie adequately apprised the
11 1 court of their argument that the default occurred when Stella missed the March
2 payment, and they have preserved the argument for appeal. See Gonzales v. Lopez,
3 2002-NMCA-086, ¶ 16, 132 N.M. 558, 52 P.3d 418 (noting that submitting an
4 issue in proposed findings of fact and conclusions of law sufficiently preserves the
5 issue for appeal). We thus turn to the merits of their contention.
6 The district court found that “[t]he allegation made by Roberto . . . in the
7 Complaint for Debt and Money Due and [f]or Foreclosure, that Stella . . . was in
8 default, was a false statement” because when the lawsuit was filed “the Note was
9 not delinquent or in default; it was current.” Aside from this finding, all of the
10 court’s findings regarding the falsity of the contention that Stella was in default
11 focus on the letter Roberto sent to Stella in December, prior to the settlement, not
12 on whether Stella was in default at the time the lawsuit was filed in March.
13 Roberto and Jennie do not dispute that Stella was not in default when Roberto sent
14 her the letter in December. Instead, they contend that Stella was in default at the
15 time they filed the foreclosure action and that the allegations in the lawsuit were
16 therefore true and cannot form the basis of Stella’s claim for intentional infliction
17 of emotional distress.
18 While there was a substantial amount of evidence that Stella was not in
19 default when Roberto sent her the notice of default letter in December, there was
12 1 no evidence presented to contradict the assertion that Stella missed the March 1st
2 payment and was thus in default at the time Roberto and Jennie filed the lawsuit in
3 March. Stella, whom the district court found to be credible, testified that she did
4 not make the March payment despite having collected rent from the other tenants
5 in the building. Roberto testified that after he was barred from the premises in
6 February 2006, Stella never made a payment on the note. Thus, the testimony of
7 both Stella and Roberto establishes that there is no dispute that the March 2006
8 payment was not made.1
9 The provisions of the note state that the monthly installments are “due and
10 payable on the 1st day of each and every month.” The note further provides that
11 “in case of default of the payment of any of said installments, when, by the terms
12 hereof, the same shall fall due, that such installments shall bear interest from the
13 date of their respective maturities until paid” and that “if any one of said
14 installments . . . is not paid within ten (10) days after the same becomes due and
15 payable, the whole of the principal sum then remaining unpaid . . . shall forthwith
16 become due and payable without notice or demand, at the option of the holder of
17 [the] note.” While the note does not specifically define default, “default” is
1 17 While Roberto also testified that Stella was not in default at the time he filed 18 the complaint, this testimony does not alter the fact that neither party disputes that the 19 March 2006 payment was never made or the implications of missing that payment 20 under the terms of the note.
13 1 generally defined as “[t]he omission or failure to perform a legal or contractual
2 duty; esp., the failure to pay a debt when due.” Black's Law Dictionary 449 (8th
3 ed. 2004). Given that the entire balance could become payable on demand if,
4 following default, the installment was not paid within ten days of its due date, the
5 note clearly contemplated that a default occurs if the monthly payment is not made
6 on the day that it is due. Because Stella undisputedly failed to pay the March 1,
7 2006, payment, she was, under the terms of the note and the common definition of
8 the term, in default. Thus, when Roberto filed the foreclosure action on March 14,
9 four days after the ten-day grace period expired, Roberto was acting within his
10 right to obtain the full balance of the note following Stella’s failure to make a
11 payment.
12 In addition to the fact that Stella was in default for having failed to make the
13 March 2006 payment, Stella was also in default by virtue of having failed to make
14 a payment for the entire balance due on the note after Roberto called the note in
15 December 2006. The district court concluded that Roberto did not call the note
16 because the letter he sent to Stella was titled as a notice of default and contained
17 language indicating that Stella had defaulted on the loan when in fact she had not
18 missed a single payment. Specifically, the letter stated that “[t]his letter is written
19 as a formal notice of Stella Cordova’s default under [the note]. Pursuant to the
14 1 terms of the [n]ote, Roberto Cordova hereby elects to call all amounts due
2 thereunder immediately payable in full.” The note provided that “Payees, at their
3 sole discretion shall have the right to call this [n]ote due and payable in full at any
4 time upon providing thirty (30) days prior written notice to Makers of any such
5 call.” The note does not impose any other requirements to call the note, it does not
6 specify any language that must be used to call the note, and it does not require that
7 Stella be in default before the note can be called or that Stella receive a valid
8 default notice prior to the calling of the note.
9 Stella argues that this letter was insufficient to call the note because
10 “claiming Stella Cordova was in default when she was not is not sufficient to
11 notify someone that the [n]ote is to be paid in 30 days.” We disagree. The
12 language of the note allowed Roberto to call the note at any time for any reason.
13 The note did not require Roberto to use any specific language to call the note nor to
14 provide any particular type of notice as long as notice was provided. The letter
15 Roberto sent explicitly stated that he was calling the note pursuant to the terms of
16 the note, which in effect provided Stella with thirty days’ notice that the entire
17 balance of the note was payable in full. Stella does not dispute that she did not
18 tender payment in full. Thus, when Stella failed to make the payment after the
19 expiration of the thirty-day period contemplated by the note, she defaulted on her
15 1 obligation to tender a full payment. Because of this default, Roberto and Jennie’s
2 allegation in the foreclosure action that Stella was in default was not a false
3 statement.
4 The court made no other findings regarding Roberto’s post-settlement
5 conduct that could be characterized as “extreme and outrageous conduct” sufficient
6 to support Stella’s claim of intentional infliction of emotional distress. Thus, we
7 must determine whether the act of filing a valid foreclosure suit is sufficient to
8 meet the “extreme and outrageous conduct” requirement of an intentional infliction
9 of emotional distress claim.
10 In Trujillo, our Supreme Court was asked to determine whether being fired
11 rose to the level of conduct required to meet the extreme and outrageous conduct
12 element of intentional infliction of emotional distress. 2002-NMSC-004, ¶ 27.
13 The Court noted that “[b]eing fired is a common occurrence that rarely rises to the
14 level of being ‘beyond all possible bounds of decency’ and ‘utterly intolerable in a
15 civilized community.’” Id. (citation omitted). Filing a foreclosure action after a
16 debtor goes into default, like firing an employee whose performance is no longer
17 satisfactory, is a common occurrence that does not rise to the level of being beyond
18 all possible bounds of decency or utterly intolerable in a civilized community. See
19 Restatement (Second) of Torts § 46 cmt. g (1965) (noting that an actor is never
16 1 liable for intentional infliction of emotional distress “where he has done no more
2 than to insist upon his legal rights in a permissible way, even though he is well
3 aware that such insistence is certain to cause emotional distress”).
4 We therefore conclude that Stella failed to establish that Roberto and
5 Jennie’s conduct was extreme and outrageous, and we reverse the judgment of the
6 district court awarding Stella compensatory and punitive damages for intentional
7 infliction of emotional distress.
8 Malicious Abuse of Process
9 Roberto and Jennie next argue that the district court’s finding that they are
10 liable for malicious abuse of process is not supported by substantial evidence.
11 While our review is deferential to the findings and conclusions of the trial court,
12 we must also be mindful of our Supreme Court’s caveat that “the tort of malicious
13 abuse of process [should be construed] narrowly in order to protect the right of
14 access to the courts” and that the tort is disfavored in the law. DeVaney v.
15 Thriftway Mktg. Corp., 1998-NMSC-001, ¶ 19, 124 N.M. 512, 953 P.2d 277 (filed
16 1997), overruled on other grounds by Durham v. Guest, 2009-NMSC-007, 145
17 N.M. 694, 204 P.3d 19. Our Supreme Court first articulated the tort of malicious
18 abuse of process in DeVaney and delineated four elements that must be established
19 in order for a party to prevail on a claim. Those elements are
17 1 (1) the initiation of judicial proceedings against the plaintiff by the 2 defendant[,] (2) an act by the defendant in the use of process other 3 than such as would be proper in the regular prosecution of the claim[,] 4 (3) a primary motive by the defendant in misusing the process to 5 accomplish an illegitmate end[,] and (4) damages.
6 1998-NMSC-001, ¶ 17. Recently, in Durham, 2009-NMSC-007, ¶ 29, the Court
7 overruled DeVaney to the extent that it required the defendant to have initiated
8 judicial proceedings against the defendant, but left the remaining elements of the
9 tort in place.
10 Roberto and Jennie first argue that there was insufficient evidence to support
11 an act in the use of process other than such as would be proper in the regular
12 prosecution of a claim. This element can be proved either by showing that a
13 complaint was filed without probable cause or by the existence of an “irregularity
14 or impropriety suggesting extortion, delay, or harassment.” Durham, 2009-
15 NMSC-007, ¶ 29 (internal quotation marks and citation omitted); see, e.g., S. Farm
16 Bureau Cas. Co. v. Hiner, 2005-NMCA-104, ¶ 11, 138 N.M. 154, 117 P.3d 960
17 (noting that whether filing of complaint is an abuse of process depends on whether
18 there was probable cause to file the complaint).
19 The district court concluded that Roberto’s
20 act of alleging in his Complaint for Debt and Money Due and [f]or 21 Foreclosure that ‘Defendant[] ha[s] defaulted in [her] obligations to 22 Plaintiff under the note and mortgage due to [her] failure to make 23 timely payment[s]’ and that ‘the note contains a provision which
18 1 makes it payable in full on demand by Plaintiffs at their sole 2 discretion upon 30 days notice,’ paired with the attachment of the 3 notice which is entitled ‘Notice of Default’ and states that Stella . . . is 4 in default, when she was not in default, are actions in the use of 5 process other than such as would be proper in the regular prosecution 6 of the claim.
7 While the district court did not specify whether it was relying on the lack of
8 probable cause or the procedural impropriety prong of the misuse of process
9 element of the claim, it appears that the district court relied on the lack of probable
10 cause element because the court’s conclusion focused solely on the complaint, not
11 on the use of process later in the proceedings.
12 Because of the fundamental importance of providing meaningful access to
13 the courts and our concern with the chilling effect malicious abuse of process
14 claims may have on valid complaints, the “lack of probable cause must be
15 manifest.” DeVaney, 1998-NMSC-001, ¶¶ 19, 22. For purposes of the tort,
16 probable cause is defined “as the reasonable belief, founded on known facts
17 established after a reasonable pre-filing investigation, that a claim can be
18 established to the satisfaction of a court or jury.” Id. ¶ 22 (citation and footnote
19 omitted). Thus, we must determine whether substantial evidence supports the
20 district court’s determination that Roberto and Jennie filed their complaint without
21 probable cause.
19 1 The court’s determination was based on its findings that Stella was not in
2 default at the time the complaint was filed and that Roberto and Jennie knew Stella
3 was not in default. We have already determined that these findings are not
4 supported by substantial evidence, and that because Stella had missed the March
5 2006 payment, she was in fact in default. Because Stella was in default, we
6 conclude that Roberto and Jennie had probable cause to file the foreclosure action
7 against Stella.
8 Because Roberto and Jennie had probable cause to file the complaint, Stella
9 failed to prove that Roberto engaged in a misuse of process, an essential element of
10 the malicious abuse of process claim. We therefore reverse the judgment of the
11 district court awarding Stella compensatory and punitive damages for malicious
12 abuse of process.
13 Punitive Damages
14 Roberto and Jennie also argue that the district court erred by awarding
15 punitive damages based on conduct that the court ruled was barred by res judicata
16 and that the evidence the court could properly consider was insufficient to support
17 a finding that Roberto’s conduct rose to the level required for punitive damages to
18 be awarded. In order for a party to have a claim for punitive damages, that party
19 must first have “established a cause of action against the defendant.” Sanchez v.
20 1 Clayton, 117 N.M. 761, 767, 877 P.2d 567, 573 (1994) (emphasis omitted).
2 Because we have concluded that Stella failed to establish a cause of action for
3 intentional infliction of emotional distress or malicious abuse of process, there is
4 no basis on which punitive damages could be awarded for Roberto’s conduct. We
5 therefore need not address Roberto and Jennie’s arguments regarding the propriety
6 of the punitive damages award entered against them.
7 CONCLUSION
8 For the foregoing reasons, we reverse the judgment of the district court and
9 remand with instructions to enter judgment in favor of Roberto and Jennie
10 Cordova. IT IS SO ORDERED.
11 12 CYNTHIA A. FRY, Chief Judge
21 1 WE CONCUR:
2 3 JONATHAN B. SUTIN, Judge
4 5 ROBERT E. ROBLES, Judge